You are on page 1of 934

RE ME DI AL LAW

GE NE RA L P R I N C I P L E S

1. Classificat ion of courts in the Philippines:


a. Courts of general jurisdiction: Those competent
to decide t heir own jur isdict ion and to take cognizance of
all kinds of cases, unless otherwise provided by the law or
Rules. Example: Regional Trial Courts.
Courts of special or limited jurisdiction: Those
which have no power to decide t heir own jurisdict ion and
can only try cases p e r m it t e d by s t at u t e . E xa mp le :
Municipal Trial Court s.
The Ju ve ni le and Domest ic Relat ions Court s had the
rank of Court s of First Inst ance but were courts of special
jur isdict io n. Under B.P. Blg. 129, they have been
int egrat ed into the Regional Trial Courts as branches
thereof.
b. Courts of original jurisdiction: Those courts in which,
u nd er the law, act io ns or proceedings may originally be
commenced.
Courts of appellate jurisdiction: Courts which have the
power to review on appeal the decisions or orders of a
lower court.
c. Superior courts: Courts which have the power of
review or supervision over anot her and lower court.
Inferior courts: Those which, in relation to anot her
court, are lower in rank and subject to review and super•
vision by the lat t er.
While, in a generic sense, a court is considered an
inferior court in relat ion to the powers of anot her tribunal
higher in rank, in its technical sense and unless otherwise
int e nded, it was for mer ly provided t hat the p hr ase

1
R E M E D I A L LAW C O M P E N D I U M

"inferior court" referred to the t hen municipal or city


courts (former Sec. 1, Rule 5, in relat ion to R.A. 3820 and
R.A. 3828), now called Met ropolit an, Municipal, and
Municipal Circuit Trial Courts. Note, also, t hat under Sec.
2, Rule 5, the t erm "municipal t rial court" as used in t hese
revised Rules includes all ot her court s of t he same rank.
In legal circles, they are also called "courts of the first
level." In some official issuances, the Supreme Court refers
to t hem as "first level courts."
However, the "inferior courts" whose decisions are
subject to the appellat e jur isd ict io n of the S upr eme Court
(Sec. 17, R.A. 296) refer to all t he court s lower t han the
Supreme Court. The t erm "lower court s" is now used for
t hat purpose in t he 1987 Co nst it ut ion (Sec. 5[2], Art. VIII), in
lieu of "inferior courts" used in the 1935 and 1973
Const it ut ions.
d. Courts of record: Those whose proceedings are
enrolled and which are bound to keep a wr it t en record
of all trials and proceedings handled by t hem (see Luzano
vs. Romero, et al, L-33245, Sept. 30, 1971).
Courts not of record: Court s which are not required to
keep a wr it t en record or t r ans cr ip t of proceedings held
t her ein.
Prior to the effect ivit y of R.A. 6031 on August 4,
1969, inferior courts were not of record; but if a municipal
court of the capit al of a province or a city court tried a
c r i m i n a l case w he r e i n t he i mp o s a b l e p e n a lt y is
impr iso nment of more t han 6 mont hs but not exceeding
6 years and/or a fine of more t han P200 but not exceeding
P6.000, its proceedings were required to be recorded as
its decisions were appealable to the Court of Appeals or
the S upr eme Court (R.A. 296, as amended by R.A. 2613
and R.A. 3828, Sec. 87[c], last paragraph). However, under
R.A. 2613, amend ing Sec. 45, R.A. 296, all inferior court s
are now required to record t heir proceedings and are
accordingly court s of record.

2
GE NER A L PRI NCI PLE S

e. Constitutional courts: Those which owe t heir


creation and existence to the Const itut ion and, therefore,
cannot be legislat ed out of exist ence or deprived by law
of the jur isdict io n and powers unqualifiedly vested in
them by the Const it ut ion. The Supreme Court and the
Sandiganbayan are the only courts specifically provided
for in the Const it ut io n. With regard to the latter, the
bet t er view is t ha t the S a n d i g a n b a y a n is only a
co nst it ut io na l l y- ma nd at e d court since, alt ho ugh its
existence is provided for in the Const itut ion, its creation
was by st at utory enact ment .
Statutory courts: Those creat ed, organized and
wit h j u r i s d i c t i o n e xc lu s ive l y d e t e r m i n e d by law.
Accordingly, all ot her court s in the P hilippines are
st atutory courts.
2. The Court of Tax Appeals created by R.A. 1125
has been held to be a part of the judicial system vested
with special jur isd ict ion to act only on protests of private
per so n s a d ve r s e l y affect ed by t he t ax, cust o ms or
assessment laws (Ursal vs. CTA, et al., 101 Phil. 209).
On March 30, 2004, said law was amended by R.A.
9282 expa nd ing t he jur isd ict io n of the Court of Tax
Appeals (CTA) and elevat ing its rank to the level of a
collegiate court with special jurisdict ion, of the same level
as t he Court of Appeals, and consist ing of a Presiding
Justice and 5 Associate Just ices who shall sit en banc or
in 2 divisions of 3 just ices each. The court shall, inter
alia, have exclusive appe llat e jur isd ict io n to review
decisions of the Commissioner of Int ernal Revenue in
disputes arising from the tax law administ ered by the
Bureau of I nt er nal Revenue, the Regional Trial Courts in
local tax cases, the Commissioner of Customs in matt ers
administered by the Bureau of Customs, the Central Board
of Assessment Appeals in assessment s of real property,
the S ecr et ar y of Finance and the Secretary of Trade
and Indust r y in mat t er s specified therein. The decision

3
R E M E D I A L LAW C O M P E N D I U M

of said court en banc may be reviewed by t he Supreme Court


on cert iorari pur suant to Rule 45 of the Rules of Court (see
Appendix CC).
3. The dist inct ion obt aining in ot her jur is dict io ns
bet ween courts of law and courts of equity, and among
civil, criminal and probate courts, does not apply in the
Philippines wherein all courts are court s both of law and
equit y (Rustia vs. Franco, 41 Phil. 280; Roa, et al. vs.
CA, et al., L 27294, June 28, 1983; Galman, et al. vs.
Sandiganbayan, et al., G.R. No. 72670, Sept. 12, 1986);
and Regional Trial Court s and, to a limited ext ent , the
lower court s, exercise jur isdict ion, according to the case
involved, as civil, criminal or probat e court s or courts of
land regist rat io n. Before B.P. Blg. 129 became operat ive,
t her e were special co urt s, such as t he Juve nile and
Domest ic Relat ions Court s, the Circuit Cr iminal Court s
and the Court s of Agrar ian Relat ions, which were courts
exercising only limited and special jur isdict io n.
4. . Under our pr esent st at ut or y and jur ispr udent ia l
taxonomy, jur isdict ion is classified, based on its nat ur e, as
follows:
a. General jur isdict io n, or the power to adjudicat e all
controversies except those expressly wit hheld from the
p le nar y po wer s of t he court ; and special or limited
jur isdict io n, which rest r ict s the court ' s jur isdict io n only
to part icular cases and subject to such limit at ions as may
be provided by the governing law.
b. Original jur isdict io n, or the power of the court to
t ake judicial cognizance of a case inst it ut ed for judicial
action for the first time under condit ions provided by law;
and appellate jur isdict io n, or the aut ho r it y of a court higher
in rank to reexamine t he final order or judgment of a lower
court which tried the case now elevat ed for judicial
review.
c. Exclusive jur isdict ion, or the power to adjudicat e a
case or proceeding to the exclusion of all other court s

4
GE NER A L PRINCIPLE S

at t hat st age; and concurrent jur isdict ion, somet imes


referred to as confluent or coordinate jurisdict ion, which is
the power conferred upon different courts, whet her of the
same or different ranks, to take cognizance at the same
stage of the same case in the same or different judicial
t errit ories.
Concurrent original jurisdict ion between trial courts
of different r anks has in the main been eliminated by B.P.
Blg. 129. For instance, there is no more concurrent
jur isd ict io n in adopt ion or guardians hip proceedings
between inferior court s and the present Regional Trial
Courts as was provided by the Judiciary Act with respect to
the former Court s of First Instance, which Act also
provided for concurrence in cr iminal cases and special civil
actions. However, as among courts of the same rank, it
appears t hat a phase of concurrent original jurisdict ion
still obt ains in some inst ances as, for example, in civil and
criminal cases for libel or the sett lement of the estate of a
no nr esident wit h propert ies in different judicial regions.
Wit hal, in point of strict law, these sit uat ions are mat t er s
of venue except in criminal cases for libel, since in
c r i m i n a l p r o c e d u r e , venu e is, as a rule, jur isdict ional.
For a discussion of other criminal cases co ver ed by the
same r u le, see the P r e l i m i n a r y Co nsiderat ions in
Criminal Procedure in Volume Two of this work. Where
such concurrence exists, the court first taking cognizance
of the case does so to the exclusion of the ot her courts,
alt hough the Supreme Court may order a transfer of venue
or place of trial to anot her court of competent
jur isdict ion.
At any rat e, B.P. Blg. 129 provides for concurrent
original jur isd ict io n bet ween the Supreme Court and
eit her the Court of Appeals or the Regional Trial Courts,
or among all t hree courts in certain cases. To illust rat e,
the Supreme Court has concurrent original jurisdict ion
with the Court of Appeals in pet it ions for the issuance of
writ s of cert iorar i, prohibit ion and mandamus against

5
R E M E D I A L LAW C O M P E N D I U M

the Regional Trial Courts; with the Court of Appeals and


the Regional Trial Courts over the same pet it ions against
the inferior courts; and with the Regional Trial Court s
in actions affecting ambassadors, other public minist ers
and consuls.
5. Also, under B.P. Blg. 129, delegated jur isdict io n
is provided for, i.e., the grant of aut hor it y to inferior
co urt s to hea r and d e t e r m i n e c a d a s t r a l and land
regist rat io n cases under cert ain condit ions (see Sec. 34,
infra); and special jur isdict io n, which is the power of
inferior courts to hear and decide pet it ions for a writ of
habeas corpus or applicat ions for bail in the absence of
all the Regional Trial Judges in the province or city (see
Sec. 35, infra). This lat t e r t ype of jur isd ict io n was formerly
included, wit h var iat io ns, in what was known as the
int erlocutory jur isdict ion of inferior court s under the
Judiciar y Act.

6. Me nt io n must also be made of the territorial


jur isdict io n of a court, which refers to the geographical
area wit hin which its po wer s can be exer cised. As
already stated, t his assumes importance in cr iminal cases
wherein considerat ions of the t erritory vis-a-vis the locus of
the cr ime det er mine not only t he venue of the case but the
jur isdict io n of the court; and, in civil cases, t he venue of
real or mixed act ions. In all cases, the S upr eme Court and
the Court of Appeals have nat ional jurisdict ion; the
Regional Trial Court s have regional jur isdict io n; and the
inferior court s have such t err it orial jur isdict io n as may be
defined by the S upr eme Court pur suant to Secs, 25, 28
and 31 , B.P. Blg. 129.
Other classifications of original jur isdict ion are based
on the su bject - mat t er or the nat ur e of the act ion being
t r ied by t he court, such as civil, cr im i na l, pr o bat e ,
admir alt y and mar it ime, juvenile and domest ic relat ions,
agrar ian, and land regist r at io n. Most of t hese different
ar eas of jur isdict io n are exercised by the r egular t rial

6
GENE R A L PRINCI PLE S

courts, since the special court s like the circuit cr iminal


courts and the juvenile and domestic relat ions courts have
been abolished. Wit h respect to the latt er, domest ic cases
are now generally handled by t he newly creat ed Family
Co ur t s, h e r e i n a f t e r d i s c u s s e d . O t he r s u b je c t s of
cont roversies r equir ing special t r a ining and knowledge,
such as t axat io n, labor and secur it ies, are handled by
quasi- judicial agencies, subject to the power of judicial
review by the appellat e court s.

7 . J u r i s d i c t i o n and ve nu e are d i s t i n g u i s h e d a s
follows:
a . J u r i s d i c t i o n is t he a u t h o r i t y to he a r and det er mine
a case; venue is the place where the case is to be heard or
t ried.
b. Jur isdict io n is a mat t e r of subst ant ive law; venue,
of procedural law.
c. Jur isd ict io n est abl is hes a relat io n bet ween the
court and the su bject - mat t er ; venue, a relat ion bet ween
plaint iff and defendant , or pet it io ner and respo ndent .
d. J u r i s d i c t i o n is fixed by law and c a n no t be
conferred by t he par t ies ; venue may be conferred by t he act
or agr ee me nt of the par t ie s (Manila Railroad Co. vs. Attorney-
General, 20 Phil. 523).
In cr imina l cases, the venue of t he crime goes into the
t er r it or ial jur isd ict io n of the court (Lopez vs. Paras, L-25795,
Oct. 29, 1966), hence where the crimina l act ion is
inst it ut ed not in the place specified by the Rules and
declared by t he su bst ant ive law as wit hin the t err it or ia l
jur isdict io n of the t r ial court, the mot ion to quash should
be grounded on lack of jur isd ict io n, and not improper
venue.
8. The aut hor it y to decide a case and not the decision
r ender ed t her ein is what makes up jur isdict io n. Where
t here is jur isd ict io n, the decision of all quest io ns ar ising
in the case is but an exercise of jur isdict ion (De la Cruz

7
R E M E D I A L LAW C O M P E N D I U M

vs. Moir, 36 Phil. 213; Associated Labor Union vs.


Ramolete, L-23527, Mar. 31, 1965). Consequent ly, a
court may have jur isdict ion over the case but at the
same t ime act in excess of such jurisdict ion.
9. The er ro r s which a court may co mmit in the
exercise of jur isdict ion differ from errors of judgment . The
for mer is r e viewa ble in an o r ig ina l act io n for cer t io r a r i ,
while t he lat t e r is corr ect ible by appea l (Henderson, et al.
vs. Tan, etc., et al., 87 Phil. 466; Maritime Co. of the Phil.
vs. Paredes, L-24811, Mar. 3, 1967; Bulan vs. Masakayan,
L-24428, June 26, 1968; Palma vs. Q & S, Inc., L-20366,
May 19, 1986). Errors of jur is d ict io n r e nde r a ju d g me n t
void or, at least voidable (see Sec. l[a] and [b], Rule 16; Rule
65), while errors of judgme nt are grounds for reversal only
if it is shown t hat prejudice has been caused t hereb y
(Banco Espahol-Filipino vs. Palanca, 37 Phil. 821; Bimeda
vs. Perez, et al., 93 Phil. 636).

10. Requisit es for the exercise of jur isdict io n and how


the court acquires such jurisdict ion:
a. Jurisdiction over the plaintiff or petitioner: This
is acquired by the filing of t he complaint , pet it io n or
init iat ory pleading before the court by the plaint iff or
pet it ioner.
b. Jurisdiction over the defendant or respondent:
This i s a c q u ir e d by t he vo l u nt a r y a p p e a r a n c e or
su b m is s io n by the d e fe nd a n t or r e s p o nd e n t to the court
or by coercive pro cess issued by t he court to him,
generally by the service of summo ns (Sharuff vs. Bubla, L-
17029, Sept. 30, 1964; Aban vs. Enage, L-30666, Feb.
25, 1983).
c. Jurisdiction over the subject-matter: This is conferred
by law and, unlike jur isdict io n over the part ies, cannot be
conferred on the court by the vo lunt ar y act or agr eement of
the part ies.

8
GENE R A L PRINCIP LE S

d. Jurisdiction over the issues of the case: This is


det er mined and conferred by t he pleadings filed in t he
case by the par t ies, or by t heir agr ee me nt in a pr e-t r ial
order or st ipulat io n, or, at t imes, by t heir implied consent
as by the failure of a part y to object to evidence on an
issue not covered by the pleadings, as provided in Sec. 5,
Rule 10 (see Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
e. Jurisdiction over the res (or the propert y or t hing
which is the subject of the lit igat ion): This is acquired
by the act ual or co nst r uct ive seizure by the court of the
thing in quest ion, t hus placing it in custodia legis, as in
a t t a c h m e n t or g a r n i s h m e n t ; or by pr o vis io n of law
which recognizes in the court the power to deal wit h the
propert y or sub je ct - mat t er wit hin its t err it or ia l jur is•
dict ion, as in land r e g i s t r at io n pr o ceed ings or suit s
involving civil st at u s or real propert y in the P hilippines of
a no nresident defendant .
In two inst ances, the court acquir es jur isdict io n to
try the case, even if it has not acquired jur isdict io n over
the person of a no nr es id e nt defendant , as long as it has
jur isdict io n over t he res, as when the action involves t he
personal st at u s of the plaint iff or propert y in the
Philippines in which the defe ndant claims an int er est
(see Sec. 15, Rule 14). In such cases, the service of
summo ns by publicat io n and not ice to the de fe nda nt
is merely to co mply w it h due p r o c e s s r e q u i r e m e n t s
(Banco Espanol-Filipino vs. Palanca, 37 Phil. 921; De
Midgely vs. Ferandos, et al., L-34314, May 13, 1975).
Under Sec. 133 of the C o r p o r a t io n Co de, while a for eign
corporat ion doing bus iness in the P hilippines wit hout a
license cannot sue or int er vene in any act ion here, it may be
sued or pr o c e e d e d a g a i n s t before our co urt s or
ad min ist r at ive t r ibu na ls.

11. . As a gener al proposit ion, t he jur isdict io n of


the court is det er mined by the st at ut e in force at the t ime of
the co mmence me nt of t he act ion (People vs. Paderna,

9
R E M E D I A L LAW C O M P E N D I U M

L-28518, Jan. 29, 1968; People vs. Mariano, et al., L-


40527, June 30, 1976; Lee, et al. vs. Presiding Judge, etc.,
et al, G.R. No. 68789, Nov. 10, 1986), unless such st at ut e
provides for its retroact ive applicat ion, as where it is a
curat ive legis lat io n (Atlas Fertilizer Corp. vs. Navarro,
etc., et al., G.R. No. 72074, April 30, 1987).
12. The settled rule is t hat the jur isdict io n of the court
over the subject - mat t er is det er mined by t he allegat io ns of
t he co mpla int (Edward J. Nell & Co. vs. Cubacub, L-20843,
June 23, 1965; Time, Inc. vs. Reyes, et al., L-28882,
May 31, 1971; Ganadin vs. Ramos, et al., L-23547, Sept.
11, 1980), but t his rule is not wit hout except ions. Thus, i t
was held t hat while the allegat ions in the complaint make
out a case for forcible ent r y, where t enancy is averred by
way of defense and is proved to be the real issue, the case
should be dismissed for lack of jur isdict io n as the case
should properly be filed wit h the t hen Court of Agr ar ia n
Relat io ns (Ignacio vs. CFI of Bulacan, L-27897, Oct. 29, 1971).
However, wit h the int egrat ion of the courts of agrar ia n
relat ions as branches of the Regional Trial Court s under
B.P. Blg. 129, the case was r equir ed to be filed wit h the
co r r espo nd ing Regional Trial Court if i t was wit hin t he
jur isd ict io n thereof, for assignment to the appropr iat e
br anch. Also, alt hough the allegat ions in the complaint
make out a case cognizable by a Regional Trial Court,
where, however, t he act s co mp la ined of are shown at t he
t r ia l to be int erwoven wit h an unfair labor pract ice case, the
act ion should be dismissed since jur isdict io n is vest ed in
the Nat ional Labor Relat ions Commission. This is so
since the Rules now per mit a mot ion to dismiss based
upon facts not alleged in the complaint (Mindanao Rapid
Co., Inc. vs. Omandam, et al., L-23058, Nov. 27, 1971, joint ly
decid ing t her e in L-23473, 23871, 24232, 24718 and
24956).

13. Where t he co mplaint is for act ual da ma ges of


P978, but the ot her claims for damages and at t or ney' s

10
GENE R A L PRINCIP LE S

fees bring t he tot al relief sought to more t han P 10,000


(which was t hen the jur isd ict io nal limit for civil cases in
the inferior court s), the t ot alit y of said claims put s the
case wit hin t he jur isd ict io n of the t hen Court of First
I nst ance and the t r ia l court er red in dis m is s ing t he
complaint upon its mere impression t hat the ot her claims
were "bloated" for the purpose of invoking its jur isdict ion,
w it ho u t he a r i n g and proof of such fact (Enerio vs. Alampay,
L-40010, May 26, 1975; Ratila vs. Tapucar, L-45018, Jan. 24,
1977). This doctrine is still applicable subject to the
incr ea sed jur is d ict io na l a mo u nt under B.P. Blg. 129
and su bseque nt legislat ion.

14. The jur isd ict io n of a court, whet he r in cr imina l or


civil cases, once it a t t a c h e s ca nno t be o ust ed by
subsequent happe nings or event s alt hough of a charact er
whic h wo uld have p r e v e nt e d ju r i s d i c t io n from at t aching
in t he first inst ance (Ramos, et al. vs. Central Bank, L-29352,
Oct. 4, 1971, and cases t her e in cited; Dioquino vs. Cruz, et
al., L-38579, Sept. 9, 1982) and it ret ains ju r isd ict io n unt il i
t finally disposes of the case (Republic vs. Pielago, et al.,
G.R. No. 72218, July 21, 1986).

15. The co nst it ut io nalit y of a st at ut e must be


quest ioned at t he ear lie st o ppo rt unit y, except in cr imina l
cases where the quest io n may be raised at any st age and,
in civil cases, if t he det er m i nat io n of the quest io n is
necessar y for the decision of the case, even if raised for
the first t ime on appeal. A co nst it ut io nal quest ion will
also be considered by the appellat e court at any t ime if it
involves the jur isd ict io n of the court a quo. The same
rule applies to or dinances (San Miguel Brewery, Inc. vs.
Magno, L 21879, Sept. 9, 1967).
16. Basic in the law on procedure is the doctrine t hat
the jur isdict io n of a court over the subject - mat t er of an
action is conferred only by the Co nst it ut io n or the law
and t hat the Rules of Court yield to subst ant ive law, in

11
R E M E D I A L LAW C O M P E N D I U M

this case, the Judiciar y Act and B.P. Blg. 129, both as
a me nded, and of which jur isd ict io n is only a par t .
Jur isdict io n cannot be fixed by the agr ee me nt of the
part ies; it cannot be acquired t hrough, or waived, enlarged
or diminished by, any act or omission of t he part ies;
neit her can it be conferred by the acquiescence of the
court (De Jesus, et al. vs. Garcia, et al., L-26816, Feb. 28,
1967; Calimlim, et al. vs. Ramirez, et al., L-34363, Nov.
19, 1982). Jur isd ict ion must exist as a mat t e r of law
(People vs. Casiano, L-15309, Feb. 16, 1961). Consequent ly,
quest ions of jur isdict ion may be raised for the first time
on appeal even if such issue was not r ais e d in t he
lower co urt (Government vs. American Surety Co., 11 Phil.
203; Vda. de Roxas vs. Rafferty, 37 Phil. 957; People vs.
Que Po Lay, 94 Phil. 640). A court can motu proprio dismiss
a case which is outside its jur isdict io n (Sec. 1, Rule 9).
17. Never t he le ss, in some cases, the pr inciple of
estoppel by laches has been availed of by our appellat e
court s to bar at t acks on jur isdict ion and t his principle
has been applied to both civil and cr iminal cases, t hus:
a. In the early case of Santiago, et al. vs. Valenzuela
(78 Phil. 397), it was held t hat if a motion to dismiss the
appeal, on the ground t hat said appeal was perfected out
of time, is filed for the first time wit h the appellat e court
after the appellant had paid the docket fee and the cost
of pr int ing the record on appeal, and after the filing of
appellant ' s brief, the appellat e court should deny the
motion as the appellee may be considered in estoppel by
his failure to object on t ime.
Thi s do ct r in e was s u b s e q u e nt l y a b a n d o ne d in
Miranda vs. Guanzon (92 Phil. 168) since the "requirement
regarding the perfect ion of an appeal wit hin the
r egleme nt ar y period is not only ma ndat o r y but
jur isdict ional," a ruling subsequent ly reit erat ed in
Garganta vs. CA (105 Phil. 412), Valdez vs. Ocumen
(106 Phil.

12
GENE R A L PRINCI PLE S

929), Galima vs. CA (L-21046, Jan . 31 , 1966), Antique


Sawmills, Inc. vs. Zayco (L-20051, May 30, 1966), Roque
vs. Vdo. de Del Rosario (L-24873, Sept. 23, 1966) and
Arellano, et al. vs. CA, et al. (L-31856, Nov. 24, 1972).
b. In t he lat er case, however, of Tijam vs. Sibong-
hanoy, et al. (L-21450, Apr il 15, 1968), the co-defendant
suret y co mpany never raised t he issue of j ur isdict io n in the
Court of F ir st I nst ance despit e several o pport unit ies to do
so and, alt ho ugh the claim being for only 1*1,908, the
case was wit hin the exclusive original jur isdict io n of
the munic ipal court. It was only aft er the court of Appeals
had affirmed the decision of the t rial court in favor of the
p la int if f bu t before the fina lit y of t hi s decision of the
Court of Appeals t hat the co-defendant suret y co mpany
filed its mot ion to dismiss on t he gr ound of lack of
origina l jur isd ict io n of the t r ia l court. Denying said
mot io n, the S upr e me Co urt st at ed : "Were we to sanct ion
such conduct on its part , we would in effect be declaring as
useless all t he proceedings had in the pr esent case since it
was commenced on July 19, 1948 and compel the judg me nt
credit ors to go up t heir Calvar y once more. The inequit y
and u nfa ir ness of t his is not only pat ent but revo lt ing. "
I t furt her st at ed t hat "after volunt ar ily submit t ing a cause
and enco unt er ing an adverse decision on the mer it s, it is
too late for the loser to quest ion t he jur isdict io n or power
of the court . . . i t is not right for a part y who has
affirmed and invoked the jur isdict io n of a court in a
par t icu lar mat t e r to secure an affir mat ive relief, to
a ft e r w a r d s deny t hat same jur is d ict i o n to escape a
penalt y, " cit ing Pindangan, etc. vs. Dans, et al. (L-14591,
Sept . 26, 1962), Young Men's Labor Union, etc. vs. CIR,
et al. (L-20307, Feb. 26, 1965) and Mejia vs. Lucas (100
Phil. 277). See also Capilitan vs. De la Cruz, (L-29536-37,
Feb. 28, 1974), Summit Guaranty vs. CA, et al. (G.R. No.
51139, Dec. 14, 1981), Tajonera, et al. vs. Lumaroza, et al.
(L-48907 & L-49035, Dec. 19, 1981), Nieva vs.
Manila Banking Corp. ( L- 30811 ,

13
R E M E D I A L LAW C O M P E N D I U M

Sept. 2, 1983), Florendo, et al. vs. Coloma, et al. (G.R.


No. 60544 , May 19, 1984), and Medijia vs. Patcho
(L-30310, Oct. 23, 1984).
c. In Rodriguez vs. CA (L-29264, Aug. 29, 1969), the
action involved property worth more t han P200.000, at
t hat time wit hin the exclusive appellat e jurisdict ion of the
Supreme Court. Despite several opportunit ies to raise t hat
issue in the Court of Appeals where the appeal was t aken,
defendant did not challenge the appellate jur isdict ion of
the court and did so only after decision was rendered
t herein against him. He raised the issue of jurisdict ion,
for the nullification of the decision of the Court of Appeals,
when the case was on appeal in the Supreme Court. The
S upr eme Court denied his plea under the doctrine of
estoppel by laches.
d. The same ruling was applied in Crisostomo vs.
CA, et al. (L-27166, Mar. 25, 1970) and Libudan vs. Gil (L-
21163, May 17, 1972) under the just ific at io n t hat "the
principle of estoppel is in t he int er est of a sound
administ rat ion of the laws," cit ing the Tijam case. The
Supreme Court pointed out t hat the doctrine of laches is
"based upon grounds of public policy which requires, for
the peace of society, the discouragement of stale claims"
and "is pr incipally a quest ion of t he inequity or unfair•
ness of per mit t ing a r ight or claim to be enforced or
asserted."
e. In Sarmiento vs. Salud (L-25211, Aug. 18, 1972),
the S upr eme Court, in resolving t he motion for recon•
siderat ion filed t her ein, held t hat while it is t rue t hat
a record on appeal must show on its face t hat it was
perfected on time and such requirement is jur isdict iona l
in nat ure, nevert heless if t he record on appeal does not
comply wit h this r equirement but the motion to dismiss
the appeal is filed more t han 6 mont hs after the appellee
filed his brief, the motion should be denied.
The same ruling was applied in Dequito vs. Lopez
(L-27757, Mar. 28, 1968) involving virtually t he same set

14
GENE R A L PRI NCIPLE S

of facts. These rulings would st ill apply in cases wher ein


a record on appeal is requir ed, as where mult iple appeals
are allowed or in special proceedings.
f. In Vera vs. People (L-31218, Feb. 18, 1970), it
was held t hat while a judg me nt is null and void where it was
pro mulgat ed when t he presid ing judge had alr ead y ceased
to hold office, since the accused failed to raise t hat issue in
the trial court and only did so after the Court of Appeals
had r e nder e d a jud g me n t adver se to him, i t would be an
injust ice if all t he proceedings had in the case would be
set aside since, after all, the court t hat r ender ed sent ence
wa s one of co mpet ent jur isd ict io n. The case of Carillo vs.
Allied Workers' Association of the Philippines (L-23689, Jul y 31
, 1968) was cited in suppo rt of this ruling.
g. In People vs. Casuga (L-37642, Oct. 22, 1973),
the accu sed wa s co nvict ed of gr av e sla nd er , whic h
offense was w it hin t he co ncur r e n t jur is dict io n of the
then Court s of Fir st I nst ance and t he munic ipal court s
of capit als of provinces or t he City Court s. I nst ead of
appealing to the t he n Court of Appeals or the S upr eme
Court, as would have been proper, he appealed to the
Court of Fir st I nst ance which affirmed said convict ion.
On his subsequent challenge to the appellat e jur isdict io n
exercised by the Court of F ir st I nst ance, the S upr eme
Court held t hat t he accused, having t ake n his appea l
to the Court of First I nst a nce, is in estoppel to challenge
the appellat e jur isd ict io n of the said court.
h. In People vs. Tamani ( L- 2216 0 - 6 1 , Jan . 21 ,
1974), alt hough the appeal of t he accused was demon•
strably filed out of t ime, the S upr e me Court nevert heless
reviewed the case and r endered a judgment on the mer it s
thereof, while declaring in the same decision the dismissa l
of the appeal, in view of the fact t hat the filing of the
appeal out of t ime was due to the fault of the defense
counsel and the furt her co nsider at io n t hat the briefs for
the part ies had alr eady been filed.

16
R E M E D I A L LAW C O M P E N D I U M

i. The doct rine laid down in Tijam vs. Sibong-


hanoy, supra, has been reit erat ed in many succeeding
cases and is still good case law. The rule up to now is
t hat a part y' s active part icipat ion in all st ages of a case
before the trial court, which includes invoking the court 's
aut hor it y to grant affirmative relief, effectively estops
such part y from lat er challenging t he j ur isdict io n of
t he said court (Gonzaga, et al. vs. CA, et al., G.R.
No. 144025, Dec. 27, 2002).
j. See, moreover, the summar y in Figueroa vs. People
of the Philippines (G.R. No. 147406, July 14, 2008) which
apparent ly present s the prevailing position of the Supreme
Court on the issue of when a lit igant is estopped by laches
from assailing t he jur isdict ion of a court, in light of its
other and subsequent holdings on the matt er.
18. Jur isdict io n over a person may also be acquired
even if he was never impleaded nor summo ned in the
act io n as a d e fe nd a n t i f he t he r e a ft e r vo lu nt a r i l y
submit t ed himself to the jur isdict io n of the court. Thus,
where the spouses volunt ar ily signed t he compromise
agr ee me n t to guar a nt e e the pa yme n t by the original
impleaded defendant s, and t hat compromise agr ee me nt
wa s appro ve d and mad e the bas i s of the j u d g m e n t
r ender ed by the court, said spouses are bound by t he
judg ment as they are in estoppel to deny the very aut ho•
rit y which t hey invoked. By vo lunt ar ily ent er ing into
the compromise agreement , t hey effectively submit t ed
t hemselves to the jur isdict io n of the court (Rodriguez,
et al. vs. Alikpala, et al., L 38314, June 25, 1974).

19. S ince a Co urt of F ir s t I ns t a nc e (now, the


Regio nal T r ia l Court ) is a court of ge ner a l o r ig ina l
jur isd ict io n, w he t he r a p ar t ic u la r ma t t e r sho uld be
resolved by it in the exercise of its general jur isdict io n,
or in its l i m it e d ju r is d i c t io n as a p r o bat e or land
r egist r at io n court, is not a jur isd ict io nal quest io n but
a p r o c e d u r a l quest io n invo lving a mode of pr act ic e

16
GENE R A L PRINCI PLE S

which, t herefore, may be waived (Manalo vs. Mariano,


et al., L-33850, Jan. 22, 1976; Santos vs. Banayo, L-
31854, Sept. 9, 1982). P a r e n t h e t i c a l l y , Sec. 2 of
P.D. 1529 has e liminat ed t he dist inct ion bet ween the
general jur isdict io n of a Regional Trial Court and the
limited jur isdict io n conferred upon it by the former law
when act ing as a cadast r al court (Ligon vs. CA, et al.,
G.R. No. 107751, June 1, 1995). However, the holding
t hat such s it uat io ns pr esen t only pro cedur al, and not
jur isdict io nal, quest ions st ill applies.

20. . Quest io ns invo lving o wner ship of or tit le to


real propert y should be lit igat ed in an or dinar y civil
act ion or in the proceeding where t he incident properly
belongs, before a court of gener al jur isd ict io n and not
before a land r eg ist r at io n co urt (Santos vs. Aquino, L-
32949, Nov. 28, 1980).

21 . S t at ut e s r egulat ing t he procedure of the court s


will be const rued as applicable to act ions pending and
undet er mined at the t ime of t he ir passage, but not to
actions which have alr eady become final and executory
(Borre, et al. vs. CA, et al., G.R. No. 57204, Mar. 14,
1988). Procedural laws are r et rospect ive in t hat sense
and to t hat ext ent (People vs. Sumilang, 77 Phil. 764;
Liam Law vs. Olympic Sawmill Co., et al., L-30771,
May 26, 1984; Yakult Philippines, et al. vs. CA, et al.,
G.R. No. 91856, Oct. 5, 1990). T hus, the provision of
B.P. Blg. 129 which e li minat ed the need for a record on
appeal was given ret roact ive effect to aut horize the giving
of due course to an appea l , which should have been
perfected in 1982 wit h t he r equir ed record on appeal, by
relieving the appellant of the need t herefor in line wit h
the change of procedure under B.P. Blg. 129 (Alday vs.
Camilon, G.R. No. 60316, Jan. 31, 1983; Ouano vs. CA,
et al., L-44823, June 27, 1985; De Guzman, et al. vs.
CA, et al, G.R. No. 52733, July 23, 1985; Lagunzad vs.
CA, et al, G.R. No. 52007, Sept. 24, 1987; Mun. Gov't of

17
R E M E D I A L LAW C O M P E N D I U M

Coron vs. Carino, et al., G.R. No. 65896, Sept. 24, 1987;
Sarmiento vs. Gatmaitan, et al., L-38173, Nov. 12, 1987).
However, new court rules apply to pending cases
only with reference to proceedings t herein which t ake
place after the dat e of t heir effectivit y. They do not
apply to the ext ent t hat in the opinion of the court t heir
applicat ion would not be feasible or would work injustice,
in which event the former procedure shall apply. Thus,
where the applicat ion of the Rule on Summar y Procedure
will mean t he dismissal of the appeal of the part y, the
same should not apply since, after all, the procedure
t hey availed of was also allowed UNDE R the Rules of
Court (Laguio, et al. vs. Garnet, et al., G.R. No. 74903,
Mar. 21, 1980).
22. Subst ant ive law is t hat part of the law which
creat es r ight s concerning life, libert y or propert y, or the
powers of inst r u me nt a l it ie s for the a d m i n is t r at io n of
public affairs (Primicias vs. Ocampo, 81 Phil. 650).
Procedural law refers to the adjective laws which prescribe
rules and forms of procedure in order t hat court s may be
able to administ er just ice (Lopez vs. Gloria, 40 Phil. 33).
S ubst ant ive law creat es, defines and r egulat es right s,
as opposed to "adjective or remedial law" which prescribes
the met hod of enforcing the r ight s or obt aining redress
for t hei r invas io n (Black's Law Dictionary, 6th Ed.,
p. 1429; cit at ions omit t ed).
Procedure is the mode of proceeding by which a legal
right is enforced, as dist inguis hed from the law which
gives or defines the right, and which, by means of the
proceeding, the court is to administ er. This t erm is com•
monly opposed to the sum of legal principles co nst it ut ing
the subst ance of the law, and denotes the body of rules,
w het he r of pract ice or plea ding, whereby r ig ht s are
effect uat ed t hro ug h t he successful applicat ion of t he
proper remedies (op. cit., pp. 1367-1368; id.).

®
GENE R A L PRINCI PLE S

In det er m in i n g w het he r a rule pr escr ibed by the


S u p r e me C o u r t a br id g e s , e n l a r g e s o r mo difies an y
subst ant ive right , the t es t i s w het he r t he rule really
r egu lat es pr o ced ur e , t hat is, t he judicial process for
enforcing rights and duties recognized by the substantive
law and for just ly ad min ist er ing remedy and r edr ess for
a disregard or infract ion of t hem. If the rule t akes away
a vest ed right , it is not procedural. If the rule cr eat es a
right, such as t he right to appeal, i t may be classified as
a subst ant ive mat t er ; but if it operates as a means of
implementing an existing right, then the rule deals
merely with procedure (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
I t is, t herefore, t he nat ur e and the pur pose of the
law whic h d e t e r m i n e s w he t he r i t i s s u b s t a nt i v e or
procedural, and not its place in t he st at ut e or its inclusio n
in a code. T hus, for inst ance, Art s. 539 and 1674 of the
Civil Code and Sec. 85, R.A. 296 provided injunct ive rules
in eject ment cases in t he t rial and appellat e st ages, but
these have been properly incorporat ed with modificat ions
as Secs. 8 and 9, r espect ive ly, of Rule 70 of the 1964
Rules of Court (now, Sec. 15 of revised Rule 70). These
subsequent ame ndat o r y provisio ns on injunct ions were
proper since t he mere fact t hat those provisions on in•
junct ions were formerly included in a subst ant ive st at ut e
or code does not convert t he m into or det r act from the
fact t hat t hey are procedur al laws, co nt rar y to common
mis impr essio n. In fact, t her e are many such procedural
rules found in the Civil Code or, for t hat mat t er, in ot her
codes or basica lly s u b s t a nt i v e laws bu t t hey do not
t hereby lose t heir char act er as procedural laws.
This mat t e r is being clarified and emphasized here
in view of the Co nst it ut io na l provision t hat the rules
which the S upr e me Court is aut hor ized to pro mulgat e
shall not diminish, increase or modify su bst ant ive r ight s
(Sec. 5 [5], Art. VIII, 1987 Constitution). The improbable
posit ion t hat a clearly procedural provision becomes a

19
R E M E D I A L LAW C O M P E N D I U M

subst ant ive law by the mere fact t hat it is included in a


co mp ilat io n, codificat io n or st at ut o r y e na c t me n t of
s u b s t a nt i v e r ig ht s , a lt ho u g h only t o ind ic at e the
r e me d ia l c o mp l e me n t for the e nfo r c e me nt t her eo f,
would effectively subvert the Const it ut ional int ent and
d i m i n is h the scope and ext e n t of the r u l e - m a k i n g
power of the Supreme Court.

20
I. CIVIL PRO C EDUR E
A. PR E L IM I NA R Y C O N S I D E R A T I O N S

1. The st udy of civil procedure includes ordinar y


civil a c t io ns , spec ia l civil a c t io n s an d p r o v i s i o na l
remedies. Special civil act ions are governed by specific
and i nd i v i d u a l r u le s s u p p l e m e n t e d b y the g e ne r a l
provisions on civil act ions.

2. Definit ion of t er ms:


a. Cause of action: The delict or wrongful act or
omissio n co mm it t e d by the de fe nd a n t in vio lat ion of
the pr imar y r ig ht s of t he plaint iff (Racoma vs. Fortich,
et al, L-29380, June 10, 1971).
b. Right of action: The r emedia l right or right to
relief gr ant ed by law to a part y to inst it ut e an act ion
against a person who has commit t ed a delict or wrong
against him.
The cause of act io n is the delict or wrong, while
the right of act ion is the r ight to sue as a consequence
of t hat delict. The quest ion as to whet her the plaint iff
has a cause of act ion is det er mine d by the a ver me nt s
in t he plead in g r eg ar d i n g the act s commit t ed by the
defendant ; whet he r such acts give him a right of act ion
is det er mined by the subst ant ive law. There can be no
r ight of act ion w it ho u t a cause of act ion being first
est ablished (see Espanol vs. The Chairman, etc. of the
PVA, L-44616, June 29, 1985).
A r ight of act ion is the r ight to present ly enforce a
cause of act ion — a r emed ia l r ight affording r edr ess
for the infr inge ment of a legal r ight belonging to some
definite person; a cause of act ion consist s of the operat ive
facts which give rise to such right of action. The r ight
of act ion does not arise unt il t he per for mance of all
condit ions pr ecedent to the act ion, and may be t ake n
away by the r u n n i n g of the s t a t ut e of l i m it a t io ns ,

21
R E M E D I A L LAW C O M P E N D I U M

t hrough an estoppel, or by other circumst ances which do


not affect the cause of action. There may be several
right s of action and one cause of action, and r ight s may
accrue at different times from the same cause (1 Am JUT 2d,
Sec. 2, p. 541).
c. Relief: The redress, protection, award or coercive
measure which the plaint iff prays the court to render in
his favor as a consequence of the delict commit t ed by the
defendant .
d. Remedy: The procedure or type of act ion which
may be availed of by the plaint iff as t he means to obtain
the relief desired.
e. Subject-matter: The t hing, wrongful act, con•
t ract or propert y which is direct ly involved in the act ion,
concer ning which t he wrong has been done and wit h
respect to which the cont roversy has ar isen (Yusingco,
et al. vs. Ong Ring Lian, L-26523, Dec. 24, 1971).
Thus, in a case for breach of cont ract, the contract
violated is the subject - mat t er; the breach by t he obligor
is the cause of action; the right of action is the consequent
subst ant ive right on the part jof the obligee to sue for
redress; the relief is the da mages or rescission or the act
which the plaint iff asks the court to order; and the remed y
is the t ype of act ion which may be availed of by the
plaintiff, which may be an act ion eit her for damages,
for rescission or for specific per for mance.
The subject - mat t er of a given case is det er mined not
by the nat ur e of the act ion t hat a part y is ent it led to
br ing but by t he nat ur e and char act er of t he pleadings
and issues submit t ed by t he part ies (Viray vs. CA, et al.,
G.R. No. 92481, Nov. 9, 1990).
3. Classificat ion of act ions:
a. Real action: One brought for the prot ection of
real r ight s, land, t e ne me nt s or her e d it a me nt s or one
founded on privit y of est at e only (Paper Industries Corp.

22
PRELIMINAR Y C ON SI D ER AT ION S

of the Phil. vs. Samson, et al., L-80175, Nov. 28, 1975).


Example: Accion reivindicatoria.
Personal action: One which is not founded upon t he
privit y of real r ight s or real propert y. Example: Action
for a sum of money.
Mixed action: One br o ught for prot ect ion or recovery
of real pr o per t y an d also for an awar d for da ma ge s
sust ained. Example: Accion publiciana wit h a claim for
damages.
For purposes of venue, a mixed act ion is governed
by the rules of venue in real act ions.
b. Action in rem: One which is not directed only
against par t icu lar per so ns but against the t hing itself
and the object of which is to bar indifferent ly all who
might be minded to mak e any object ion a gainst the r ight
sought to be enforced, hence the ju dg me n t t her e i n i s
binding t heoret ically upon the whole world. Example:
Expropriat ion.
Action in personam: One which is direct ed against
part icular per so ns on t he basis of t heir personal liabilit y
to est ablis h a claim ag a ins t t he m and the ju d g me n t
wherein is binding only upon t he part ies impleaded or
their successors in int er est . Example: Action for breach
of cont ract.
Action quasi in rem: One direct ed agains t part icular
persons but the pur po se of which is to bar and bind not
only said persons but any ot her person who claims any
int er es t in the pro pert y or r igh t subject of the suit .
Example: Judicial foreclosure of a mort gage (Ocampo
vs. Domalanta, L-21011, Aug. 30, 1967).
A proceeding for at t ach me n t of propert y is in rem if
the defendant does not appear in court, and in personam
if he a p p e a r s (Banco EspaAol-Filipino vs. Palanca,
supra).

23
R E M E D I A L LAW C O M P E N D I U M

c. Transitory action: One the venue of which is


dependent generally upon the residence of the part ies
regardless of where the cause of action arose. Example:
Personal act ion.
Local action: One which is required by t he Rules to
be inst it ut ed in a part icular place in the absence of an
agreement to the contrary. Example: Real action.
The class ificat io n of act io ns into r eal , per so na l
or mixed is based on the subject - mat t er thereof. With
respect to the binding effect of the relief sought or the
judg ment t herein, act ions are classified into act ions in
rem, quasi in rem or in personam. Hence, a real act ion
may be in personam, or a personal action may be in rem
(see Hernandez, et al. vs. Rural Bank of Lucena, Inc., L-
29791, Jan. 10, 1978). Transit or y or local actions are so
deno minat ed on the basis of the per missible venues
thereof.
4. In Yu vs. Pacleb, etc. (G.R. No. 172172, Feb. 24,
2009), the Supreme Court cited this extended discussio n
on classification of civil action: The settled rule is t hat the
aim and object of an act ion det er mine its char act er .
Whet her a proceeding is rem, or in personam, or quasi in
rem is det ermined by its nature^ind purpose, and by these
only. A proceeding in personam is a proceeding enforce
personal r ights and obligat ions brought against the person
and is based on the jur isdict ion of the person, alt hough it
may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose
of it in accordance with the mandat e of the court. The
purpose of a proceeding in personam is to impose, t hrough
the judgment of a court, some responsibilit y or liabilit y to
compel a defendant to specifically perform some act or
actions to fasten a pecuniary liabilit y on him. An action
in personam is said to be one which has for its object a
judg me nt against the person, as dist inguished from a
judgment against the propert y to det ermine its st at e. It

24
PRELIMINAR Y CON S ID ER AT IO N S

has been held t hat an action in personam is a proceeding


to enforce personal r ight s or obligat ions, such act ion is
brought aga inst the person.
X X X

On the ot her hand, a proceeding quasi in rem is one


brought against perso ns seeking to subject the propert y
of such persons to the discharge of the claims assailed. In
an act io n quasi in rem, an i nd i v i d u a l is na me d as
defendant and the purpose of the proceeding is to subject
his int erest s t her ein to the obligat ions or loans burdening
the propert y. Actions quasi in rem deal wit h the st at us,
ownership or liabilit y of a part icular propert y but which
are intended to operat e on t hese quest ions only as between
part icular part ies to the proceedings and not to ascert ain
or cut off the r ight s or int er est s of all possible claimant s.
The judgment s t her ein are binding only upon the part ies
who joined in the act ion.

25
B. JURIS DICTIO N OF THE S UPREM E COURT
UNDER THE 1987 CO NS TITUTIO N

Article VI (Legislat ive Depart ment )


"Sec. 30. No law shall be passed incr eas ing the
a p p e l l a t e j u r i s d i c t i o n o f the S u p r e m e C o u r t a s
provided in t his Co nst it ut io n wit hout it s advice and
concurrence."

Article VII (Execut ive Depart ment )


"Sec. 4. (last par.) The Supreme Court, sit t ing en
banc, shall be the sole judge of all contest s relat ing to
the elect ion, r et ur ns and qualificat ions of the P r esident
or Vice- Pr esident , and may pr o mu lg at e rules for t he
purpose."
X X X

"Sec. 18. (t hir d par.) The S u pr e me Co ur t ma y


review, in an appropriat e proceeding filed by any cit izen,
the sufficiency of the factual basis of the procla mat io n of
mar t ia l law or the suspension of the privilege of the wr it
or the extension thereof, and must promulgat e its decision
t hereon wit hin t hirt y days from its filing."

Article VIII (Judicial Depart ment )


"Sec. 2. The Congress shall have the power to define,
prescribe, and apport ion the jur isdict io n of the var io us
court s but may not deprive t he S upr e me Court of its
jur isdict io n over cases e nu mer at ed in Section 5 hereof.
No law shall be passed reorganizing the Judiciar y
whe n i t u n d e r m i n e s the s e c u r it y of t e n u r e of it s
Members."
X X X

"Sec. 5. The Supr eme Court shall have the following


powers:

26
J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R TH E 1 9 8 7 C O N S T I T U T I O N

(1) Exercise orig inal jur isd ict io n over cases affect ing
ambassadors, ot her public minist er s and consuls, and
over pet it ions for certiorari, prohibit ion, mandamus,
quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appea l
or certiorari, as the law or the Rules of Court may
provide, final jud g me nt s and orders of lower court s
in:
(a) All c ase s i n w hic h the c o n s t i t u t io n a l i t y or
va l id it y of an y t r e at y , i n t e r n a t i o n a l or exe•
cut ive a g r e e m e n t , law, p r e s i d e n t i a l decr ee ,
procla mat io n, order, inst r uct io n, ordinance, or
regulat ion is in quest ion.
(b) All cases invo lving the legalit y of any tax, impost,
assessme nt , or toll, or any pena lt y imposed in
relat ion t her et o .
(c) All cases in which t he jur isd ict io n of any lower
court is in issue.
(d) All cr imina l cases in which the penalt y imposed
is reclusion perpetua or higher.
(e) All cases in which only an error or quest ion of
law is involved.
(3) Assign t emporar ily judges of lower court s to other
s t at io n s a s pu bl i c i nt e r e s t ma y r e q u ir e . Suc h
t empor ar y ass ig nme nt shall not exceed six mo nt hs
wit hout the consent of t he judge concerned.
(4) Order a change of venue or place of t r ial to avoid a
miscarr iage of just ice.
(5) P r o mu lg at e r ule s co ncer ning t he prot ect io n and
e n fo r c e me nt of c o ns t it u t io na l r ig ht s , p lea d ing ,
pract ice, and procedur e in all courts, the admission
to the pract ice of law, the I nt egr at ed Bar, and legal
assist ance to t he underpr ivileged. Such rules shall
provide a simplified and inexpensive pr ocedure for
R E M E D I A L LAW C O M P E N D I U M

the speedy disposit ion of cases, shall be uniform for


all courts of the same grade, and shall not diminish,
incr ea se, or modify su bst a nt iv e r ig ht s . Rules of
procedure of special courts and quasi-judicial bodies
shall r e ma in effective unless disapproved by the
Supreme Court.
(6) Appoint all officials and employees of the Judiciar y
in accordance with the Civil Service Law."

Article IX (Const it ut ional Commissions)


A. Common Provisions
"Sec. 7. Each Commission shall decide by a majorit y
vote of all its Members any case or mat t er brought before
it wit hin sixt y days from t he dat e of its submission for
decisio n or r eso lut io n. A case or mat t e r is deemed
submit t ed for decision or resolut ion upon the filing of
the last pleading, brief, or me mo r a ndu m required by
the rules of the Commission or by the Commission itself.
Unless ot herwise provided by t his Co nst it ut io n or by law,
any decision, order or ruling of each Commission may be
br o ugh t to the S upr e me Co ur t on certiorari by the
aggr ieved part y w it hin t hir t y days from receipt of a
copy thereof."

NO TES

1. See, in t his connect ion, the notes under Sec. 7,


Rule 56.
2. Cons ider ing t he provisions of B.P. Blg. 129, the
fact t hat appeals from t he S ecur it ie s and E xc ha ng e
Commission and in nat ur a lizat io n and d enat ur a lizat io n
cases should now be t aken to the Court of Appeals, and
all decis io ns of the c o ns t it ut io na l co mm is s io n s ar e
reviewable on original act ions of cert iorar i, all appeals
in civil cases to the S upreme Court can now be brought
only on pet it ion for review on cer t io r ar i (cf. Sec. 17,

28
J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R TH E 1 98 7 C O N S T I T U T I O N

R.A. 296, as ame nd ed by R.A. 5440; Santos, et al. vs.


CA, et al., G.R. No. 56614, July 28, 1987). Moreover, as
hereaft er explained, Sec. 9 of B.P. Blg. 129 was a mended
by R.A. 7902 to furt her vest appellat e jur isdict io n in the
Court of Appeals over judg me nt s, final orders, awards or
r eso lut io ns of the Civil Ser vice Co mmiss io n and t he
Cent ral Board of Assess ment Appeals.

29
C. THE JUDICIARY REO RGANIZATIO N ACT
OF 1980

ORGANIZATION

1. The Judiciar y Reorganizat ion Act of 1980 (Batas


Pambansa Blg. 129) took effect upon its appro val on
August 14, 1981 (Sec. 48). However, the t ransit or y pro•
vis io n (Sec. 44) dec lar ed t hat its p r o v is io n s "sha l l
i m m e d i a t e l y be car r ie d out in a cco r d a nc e wit h an
E xecut ive Or der to be issued by the P r e s id e nt . The
Court of Appea ls, t he Court s of Fir s t I nst a nc e , the
Cir cuit Cr i m ina l Co urt s, t he Juve ni l e and Do mest ic
Relat ions Court s, the Court s of Agr ar ian Relat ions, the
City Court s, the Municipal Court s and the Municipal
Circuit Court s shall cont inue to funct ion as present ly
const it ut ed and organized unt il the complet ion of the
reorganizat ion provided in t his Act as declared by t he
President . Upon such declar at ion, the said court s shall
be deemed aut o mat ically abolished and the incumbent s
thereof shall cease to hold office. The cases pending in
the old Court s shall be t ransferred to the appropr iat e
Court s const it ut ed pur suant to t his Act, t oget her wit h
the per t ine nt funct ions, records, equipme nt , propert y
and the necessar y personnel." The const it ut io nalit y of
t his Act was upheld by t he S upr e me Court en banc, wit h
one dissent , in De la Liana, et al. vs. Alba, et al. (G.R. No.
57883, Mar. 12, 1982).

2. . The Co urt of App e a l s wa s r e p la ce d by


the I nt er mediat e Appellat e Court consist ing of a
Presiding Just ice and 49 Associate Appellat e Just ices,
which shall sit in 10 divisions each composed of 5
members, except only for the pur po s e of exer c is i n g
a d m i n i s t r a t i v e , ceremonial or ot her non-adjudicat ory
funct ions in which inst ances it may sit en banc (Secs. 3
and 4).

30
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

However, under Execut ive Order No. 33 (July 28,1986),


a me nd in g B.P. Blg. 129, the Co ur t of Appea l s wa s r e -
c r e at e d , co nsist ing of a P r e s id in g J ust ic e an d 50
Associat e J u s t ic e s , whic h shal l exer cise its power s ,
functions and dut ies t hro ugh 17 divisions, each composed
of 3 me mber s . It may sit en banc for t he pur po s e of
exer cis ing a d m i n i s t r a t ive , cer e mo n ia l or ot he r non-
adjudicat ory funct ions (Secs. 3 and 4, as amended).
A majorit y of the act ual me mber s of the Court shall
const it ut e a quorum for its sessions en banc. Three (3)
members shall co nst it ut e a quorum for the sessions of a
division. The unani mo u s vote of the t hree me mber s of a
division shall be necessar y for the pr o no unce me nt of a
decision or final reso lut ion, which shall be reached in
co nsult at io n before t he wr it ing of the opinion by any
member of t he division. In t he event t hat the t hr e e
members do not reach a unani mo u s vote, the Presiding
Just ice shall r equest t he Raffle Co mmit t ee of the Court
for t he des ig nat io n of two add it io na l Ju st ic e s to sit
t emporar ily wit h t hem, forming a special division of five
me mber s and the co ncur r e nc e of a majo r it y of such
division shall be necessar y for the pr o no unce me nt of a
decision or final r eso lut io n. The des ig nat io n of such
add it io na l J u s t ic e s sha l l be mad e st r ict l y by raffle
(Sec. 11, as amended).
E xecut ive Or de r No. 33 r epea le d Sec. 8 of B.P.
Blg. 129 which had provided for grouping of divisions
to handle specific classes of cases (Sec. 4). It furt her
provided t hat the t er m "I nt er med iat e Appellat e Court,
P r es id ing App e llat e Ju st ic e and Associat e Appe l lat e
Just ice(s)" used in B.P. Blg. 129 or in any ot her law or
execut ive order shall hereaft er mean Court of Appeals,
Presiding Just ice and Associate Just ice(s), respect ively
(Sec. 8).
Addit ionally, effective Februar y 2, 1997, B.P. Blg. 129
was fu r t he r a m e nd e d by R.A. 8246 (Appendix G),
pur suant to which t he Court of Appeals shall consist of
R E M E D I A L LAW C O M P E N D I U M

a Presiding Just ice and 68 Associat e Just ices, and shall


be composed of 23 divisions of 3 members each, with the
first 17 divisions stat ioned in Manila, the 18th to 20th
divisions in Cebu City, and the 21st to 23rd divisions in
Cagayan de Oro City.
3. The Courts of First Instance, the Circuit Crimina l
Courts, the Juvenile and Domest ic Relat ions Court s and
the Court s of Agrarian Relat ions have been int egrat ed
into the Regional Trial Courts for each of the 13 Judicial
Regions which replaced the former 16 Judicial Dist rict s,
each Regional Trial Court to consist of the nu mber of
branches provided in Section 14 of the Act.

4. The city courts and municipal courts in the


Nat ional Capit al Judicial Region have been merged into
a Met ropolit an Trial Court of Met ro Manila and were
converted into branches thereof (Sec. 27). The Supreme
Court shall const it ut e other Met ropolit an Trial Court s
in such other met ropolit an areas as may be est ablished
by law and whose t er r it o r ia l jur isd ict io n shall be co•
extensive wit h t he cities and municipalit ies comprising
such met ropo lit an area (Sec. 28).

5. The city courts in other cities which do not now


or hereaft er form par t of a met ropo lit an area shall be
known as Municipal Tr ial Courts, with t he corresponding
number of branches (Sec. 29), and the municipal courts,
whet her of an ordinar y municipalit y or of a capit al of a
province or sub- pro vince but not compr ised w it hin a
met ropolit an area and a municipal circuit, shall likewise
be known as Munic ipa l Tr ial Co urt s wit h the corre•
sponding nu mber of branches (Sec. 30). The municipa l
circuit courts shall be known as Municipal Circuit Trial
Court s and the Supreme Court may further reorganize
the same (Sec. 31).

6. Excepted from t he coverage of the Act are the


S u p r e me Co urt an d the S a n d i g a n b a y a n , bu t t hes e

32
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

courts have been affected by t he jur isdict io nal changes


introduced t herein. The provisions of the Judiciar y Act
of 1948 (R.A. 296, as amended), R.A. 5179, as amended,
the Rules of Court an d all o t he r st at ut e s , let t er s of
i n s t r u c t i o n s an d g e n e r a l o r d e r s o r p a r t s t her eo f,
inconsist ent with the provisions of this Act are repealed
or modified accordingly.

7. No ment ion is made of the Court of Tax Appeals


since the Act is basically on the mat t er of jur isdict iona l
changes. However, appeals from its jud g me nt s or final
orders, which used to be governed by R.A. 1125, were lat er
required to be t aken to the Court of Appeals pur sua nt to
Revised Ad minist r at ive Circular No. 1-95 of the S upreme
Court, which t her eaft er was adopt ed as Rule 43 of these
revised Rules. See, however, the more recent changes in
R.A. 9282 (Appendix CC).

JURI S DI CT I ON
I. I nt er med iat e Appellat e Court (now, the Court of
Appeals):
"Sec. 9. Jurisdiction. — The I nt er mediat e Appellat e
Court shall exercise:
(1) Original jur isd ict io n to issue wr it s of man•
damus, prohibit ion, certiorari, habeas corpus, and quo
warranto, and auxiliar y writ s or processes, whet her
or not in aid of its appellat e jurisdict ion;
(2) Exclusive or iginal jur isd ict io n over actions
for annu lme nt of judgme nt s of Regional Trial Courts;
an d
(3) Exclusive appellat e jurisdict ion over all final
judgment s, decisions, resolut ions, orders or awards
of Regional Tr ial Court s and quasi- judicial agencies,
i nst r u me nt a l it ie s, bo ar ds, or commissions, except
those falling wit hin t he appellat e jurisdict ion of the
Supreme Court in accordance wit h t he Const it ut ion,

33
R E M E D I A L LA W C O M P E N D I U M

the provisions of this Act, and of subpar agr aph (1) of


the t hird par agr ap h and su bp ar a gr a p h (4) of the
fourth paragraph of Section 17 of t he Judiciar y Act
of 1948.
The I nt er mediat e Appellate Court shall have the
power to try cases and conduct hear ings, receive
evidence and perform any and all acts necessary to
resolve factual issues raised in cases falling wit hin
its original and appellate jur isdict ion, including the
power to grant and conduct new t rials and furt her
proceedings.
These provisions shall not apply to decisions and
int er locut ory orders issued under the Labor Code
of the P hilipp ine s and by t he C e nt r a l Board of
Assessment Appeals."
The second paragr aph of Sec. 9 above set forth was
subseque nt ly a me nded by Sec. 5 of Execut ive Order
No. 33 to read as follows:
"The Court of Appeals shall have the power to
r eceive evide nc e an d per fo r m any an d all act s
necessary to resolve factual issues raised in (a) cases
falling wit hin its original jur isdict ion, such as actions
for annu lme nt of judg ment s of regional t rial courts,
as provided in par agr aph (2) hereof; and in (b) cases
falling wit hin its appellat e jur isd ict io n wherein a
mot ion for new t rial based only on the ground of
newly discovered evidence is grant ed by it."
However, effective March 18, 1995, Sec. 9 was furt her
amended by R.A. 7902 (Appendix F) and now provides:
"SEC. 9. Jurisdiction. — The Court of Appeals
shall exercise:
"(1) Original jur isdict ion to issue writ s of man•
damus, prohibit ion, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whet her
or not in aid of its appellat e jur isdict ion;

34
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

"(2) Exclusive original jur isdict io n over act ions


for annu l me nt of judgment s of Regional Trial Court s;
and
"(3) Exclusive appellat e jur isdict ion over all final
judg ment s, decisions, resolut ions, orders or awards
of Regional Tr ial Court s and quasi- judicial agencies,
inst r u me nt a lit ies, boards or commissions, including
the Securit ies and Exchange Commission, the Social
Securit y Commission, t he Employees Compensat ion
Commission and the Civil Service Commission, except
those falling wit hin the appellat e jurisdict ion of the
S upr eme Court in accordance with t he Const it ut io n,
the Labor Code of the P hilippines under P resident ia l
Decree No. 442, as amended, the provisions of this
Act, and of su bpar agr ap h (1) of the t hird par agr aph
and s u bp a r a g r a p h (4) of t he fourt h p a r a g r a p h of
Section 17 of the Judiciar y Act of 1948.
"The Court of Appea ls shall have the power to
try cases and conduct hear ings, receive evidence and
perform any and all act s necessar y to resolve factual
issues raised in cases falling wit hin its original and
appellat e jur isdict ion, including the power to grant
and conduct new t ria ls or furt her proceedings. Trials
or hear ing s in the Court of Appeals must be con•
t inuo u s an d mus t be co mp let ed wit hi n t hr e e (3)
mo nt hs unless ext ended by the Chief Just ice."

NOTES

1. Unlike the provisions of Sec. 30 of the Judiciar y


Act, B.P. Blg. 129 vest ed the I nt er me d iat e Appe llat e
Court wit h original jur isdict ion to issue wr it s of man•
damus, prohibit ion, cert iorari, habeas corpus, and all other
auxiliar y wr it s and processes whet her or not in aid of its
appellat e jur isdict io n and added the special civil act ion of
quo warr ant o to such original jur isdict ion. Furt her mo re,
the I nt er mediat e Appellat e Court had exclusive original

35
R E M E D I A L LAW C O M P E N D I U M

jurisdict ion over actions for the annulme nt of judgment s


of the Regional Trial Courts. The lat ter, however, ret ain
t heir jur isd ict io n over act ions for the a nnu l m e nt of
j u d g me nt s of the infer ior co urt s (Sec. 19), i.e., the
Met ro po lit a n, Municipal and Munic ipal Circu it Tr ial
Courts (Sec. 25).
2. Amendatory of previous legislat ion, the appellat e
jurisdict ion of the t hen Int er mediat e Appellat e Court over
quasi-judicial agencies, or the so-called admin ist r at ive
t ribunals, was ext ended to and included the Securit ies
and E xc ha nge Co mmissio n and the different bo ards
which took t he place of t he quo nda m Public S er vice
Commission, i.e., the Boards of Tr ansport at io n, Commu•
nicat ions, and Power and Wat erworks, whose decisions
were t heretofore appealable to the Supreme Court. Cases
involving petit ions for naturalizat ion and denat uralizat io n
are now exclusively appealable to the Court of Appeals.

3. However, by specific provisions of Sec. 9 of this


Act, the S upr eme Court r et ained exclusive appe llat e
jur isdict ion over the decisions of the two const it ut ional
co mmissio ns, i.e., Commission on E lect io ns and Com•
mission on Audit (see 1973 Constitution, Art. XII-C and
D). Under the 1987 Const it ut ion, this exclusive appellat e
j u r is d i c t io n wa s mad e t o inc lude t he Civil S er vic e
Commission (Sec. 7, Art. IX-A). Also, likewise specifically
excluded from the appellat e jurisdict ion of the I nt er me•
diate Appellate Court were decisions and int er locut or y
orders under the Labor Code, such as those pro mulgat ed
by t he S ecr et ar y of Labor and E mp lo yme nt and t he
Nat ional Labor Relat ions Commission, those of the Central
Board of Assessment Appeals, and the 5 t ypes of cases
which fall wit hin t he exclusive appellat e jur isdict io n of
the Supreme Court under the 1973 Const itut ion (Sec. 5[2],
Art. X) an d r e p r o d u c e d in t he 1987 C o n s t i t u t i o n (Sec.
5[2J, Art. VIII), as amplified in the provisions of the Judiciar y
Act specified by said Sec. 9.

36
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

Furt her mo re, in view of the exclusionary provisio n


in said Sec. 9, the I nt er med iat e Appellate Court appeared
to have no appellat e jur isdict io n over the cases in the
specified par agr ap hs of Sec. 17 of the Judiciar y Act, i.e.,
t ho se invo lving co ns t it ut io na l , ta x or ju r is d ic t io na l
quest ions even if the same also involve quest ions of fact
or mixed quest ions of fact and law which were appealable
to the Court of Appeals under Sec. 17 of the Judic iar y
Act, as amended. It is believed t hat despite the present
formulat ion of said Sec. 9(3) of B.P. Blg. 129, the former
rule, vest ing the Court of Appeals wit h appellat e jur is•
diction in the aforest at ed cases whenever a factual issue
is involved, should st ill apply.
As indicated earlier, wit h t he a mend me nt s introduced
by R.A. 7902, the disposit ions of the Civil Service Com•
mission and t he Ce nt r a l Board of Asse ss ment Appeals
are now wit hin t he exclusive appellat e jurisdict ion of the
Court of Appeals.
4. . While the I nt e r m e d i a t e Appe l lat e Court
was aut horized to receive evidence on factual issues on
appeal, this evident iar y hear ing co nt emp lat es
"incident al facts" which were not touched upon or fully
heard by the trial court, and not an orig ina l and full
t r ial of t he main factual issue which properly pert ains
to the t rial court (Lingner & Fisher GMBH vs. IAC, et
al., G.R. No. 63557, Oct. 28, 1983). This po wer to
co nduct new t r ia l s or furt her proceedings is not
obligatory on the appellat e court and i t may r e ma n d
the case to t he t r ial court for t hat purpose (De la
Cruz, etc. vs. IAC, et al., G.R. No. 72981, Jan. 29,
1988).

5. The exclusive appellat e jur isdict io n of the Court


of Appeals provided for in Sec. 9(3) of B.P. Blg. 129 over
final orders or rulings of quasi-judicial inst rument alit ies,
boards or commissions refers to those which result ed from
proceedings wher e in the ad m in ist r at ive body involved
exercised quasi- judicia l funct ions. Such quasi- judic ial
37
R E M E D I A L LAW C O M P E N D I U M

action or discret ion involves the invest igat ion of facts,


holding of hear ings, drawing conclusions therefrom as a
basis for official action, and exercising discret ion of a
judicial nat ur e. Quasi- judicial adjudicat ion r equir es a
det er minat io n of right s, privileges and dut ies result ing
in a decision or order which applies to a specific sit uat ion.
Rules and regulat ions of general applicabilit y issued by
the administ rat ive body to implement its purely adminis•
trat ive policies and funct ions, or those which are merely
incident s of its inher ent administ r at ive funct ions, are
not included in t he appealable orders co nt emp lat ed in
said provision, unless otherwise specifically provided by
other laws governing the mat t er. Cont roversies arising
from such o r der s are wit hin t he co gniza nc e of the
Regional Trial Court s (Lupangco, et al. vs. CA, et al.,
G.R. No. 77372, April 29, 1988).

6. It was formerly held t hat the 30-day period to


appea l to t he I nt e r me d i a t e Appe l lat e Co urt from a
decision or final order of the S ecur it ies and E xchange
Co mmissio n, p u r s u a nt to its rules issued co nsequ e nt
to Sec. 6 , P.D. 902-A, had not been affected by B.P.
Blg. 129 which pr o vide s for a 15-day appea l per iod
from decisions of court s of just ice. The Securit ies and
Exchange Commission is not a court; it is an adminis•
trat ive agency. Repeals by implicat ion are not favored
(Gimenez Stockbrokerage & Co., Inc. vs. SEC, et al.,
G.R. No. 68568, Dec. 26, 1984).
7. The aforesaid doctrine was t aken into account by
the Supreme Court in an appeal from a decision of the
Insurance Commission to the t hen I nt er mediat e Appellat e
Court since Sec. 416(7) of the Insurance Code (P.D. 612,
as amended) provides for a 30-day period for appeal from
notice of a final order, ruling, or decision of t he Com•
mission. The Supreme Court noted t hat if t he provisions
of R.A. 5434 were to be applied, pur suant to Par. 22(c) of
the I nt er im Rules which gover ns appeals from quasi-

38
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

judicial bodies, Sec. 2 t hereof provides t hat the appea l


should be filed wit hin 15 days from notice of the ruling,
award, order, decision, or judgment or from the dat e of
its last publicat ion if required by law, or in case a motion
for recons iderat io n is filed wit hin the period for appeal,
t hen wit hin 10 days from notice or such publicat ion of
the resolut ion denying the mot ion for r eco nsider at io n.
Nevert heless, in line wit h the ruling in Gimenez, since
the Insurance Commission is likewise an administ rat ive
body, appeals from its final orders, decisions, resolut ions,
or awar ds may not necessar ily be deemed modified by
Sec. 39 of B.P . Blg. 129 which limit s the period to
appeal to 15 days (Midland Ins. Corp. vs. IAC, et al.,
G.R. No. 71905, Aug. 13, 1986; see also Zenith Ins. Corp.
vs. IAC, et al, G.R. No. 73336, Sept. 24, 1986; Malayan
Ins. Co., Inc. vs. Arnaldo, et al., G.R. No. 67835, Oct. 12,
1987).

8. The foregoing doctrines, however, are no longer


cont rolling in view of Cir cu lar No. 1-91 issued by t he
S upr e me Court on Febr uar y 27, 1991 which provided
t hat appeals from quasi- judicial agencies shall be t aken
to the Court of Appeals wit hin 15 days from notice or last
publicat io n of the ju dg me n t or final order. This was
more r ecent ly fur t her amplified by Revised Adminis•
t rat ive Circular No. 1-95 which took effect on Jun e 1,
1995, and has now been formulat ed as Rule 43 of these
revised Rules.
9. It will also be recalled t hat appeals from the
decisio ns, orders or rulings of the t hree co nst it ut io nal
commissions, i.e., Civil Service Commission, Commission
on Elect ions and Commission on Audit, may be brought to
the S upr e me Court on cert ior ar i wit hin 30 days from
receipt thereof unless ot herwise provided by the Consti•
t ut io n or by law (Sec. 7, Art. IX-A, 1987 Constitution).
However, as earlier st ated, Sec. 9 of B.P. Blg. 129 which
originally co nt ained the same jur isd ict io na l rule was
subsequent ly amended by R.A. 7902, effective March 18,

39
R E M E D I A L LAW C O M P E N D I U M

1995, to provide t hat appeals from t he Civil Service


Commission should be taken to the Court of Appeals.
10. In the landmark decision in St. Martin Funeral
Home vs. NLRC, et al. (G.R. No. 130866, Sept. 16, 1998),
the Supreme Court clarified t hat ever since appeals from
the NLRC to the Supreme Court were eliminat ed, the
legislat ive int endment is t hat the special civil act ion of
cert iorari was and still is the proper vehicle for judicial
review of decisions of the NLRC. All references in t he
amended Sec. 9 of B.P. Blg. 129 to supposed appeals from
the NLRC to the S upr eme Court are int er pr et ed and
declared to mean and refer to petit ions under Rule 65.
Consequent ly, all such petit ions should be init ially filed
in the Court of Appeals in strict observance of the rule on
hierarchy of courts. The concurrent original jur isdict ion
of t he S upr eme Co urt can be ava iled of only UNDE R
compelling and except ional circumst ances.

11. . On a different r at io nale, t he S upr e me


Court ruled in Fabian vs. Desierto, etc., et al. (G.R. No.
129742, Sept . 16, 1998) t hat appea l s from the Office of
the Ombudsman in administ rat ive disciplinar y cases
should be t aken to the Court of Appeals via a verified
pet it ion for review under Rule 43 . Striking down as
unconst it ut ional Sec. 27, R.A. 6770 ( Om bu ds ma n Act
of 1989) which a u t ho r i z e d suc h appe a l t o the
S u p r e m e Co urt "in a cco r d a nc e wit h Rule 45," i t
wa s po int e d out t hat appeals under Rule 45 apply
only to judgment s or final orders of the courts
enumer at ed under Sec. 1 thereof, and not to those of quasi-
judicial agencies. Furt her mo r e, t hat provision of R.A.
6770 violates the proscript ion in Sec. 30, Art. VI of the
1987 Co nst it ut io n against a law which increases the
appellat e jurisdict ion of the Supr eme Court wit hout its
advice and consent.

II. Regional Trial Courts:


"SEC. 19. Jurisdiction in civil cases. — Regio nal
40
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

Trial Court s shall exercise exclusive original jur isdict ion:


(1) In all civil act ions in which the subject of the
lit igat ion is incapable of pecuniar y est imat ion;
(2) In all civil act ions which involve the tit le
to, or possession of, real propert y, or any int er est
t her ein, where t he assessed value of the pro pert y
involved exceeds Twent y t housand pesos (P20.000.00)
or, for civil act ions in Met ro Manila, where such value
exceeds Fift y t ho u sa n d pesos (P50.000.00) except
act ions for forcible ent r y into and unlawful det ainer
of lands or buildings, original jur isdict io n over which
i s co nferred upon the Met ro po lit a n Trial Co urt s,
Municipal Trial Court s and Municipal Circuit Tria l
Courts;
(3) In all act io ns in ad m ir a lt y and mar it i m e
jur isdict io n where the demand or claim exceeds One
hundr ed t ho usand pesos (F100.000.00) or, in Metro
Manila, where such demand or claim exceeds Two
hundr ed t housand pesos (P200.000.00);
(4) In all mat t er s of probat e, both t est at e and
i n t e s t a t e , wher e the gro s s va lu e o f the e s t at e
exceeds One hu ndr ed t ho usand pesos ( P 100,000.00)
or, in probat e mat t er s in Metro Manila, where such
gross value exceeds Two hundr ed t housand pesos
(P200,000.00);
(5) In all act io n s invo lving the co nt r ac t of
mar r iage and mar it al relat ions;
(6) In all cases not wit hin t he exclusive jur is•
d ict io n of an y co ur t , t r i b u n a l , per s o n or body
exercising [jurisdict ion of any court, t ribunal, person
or body e xe r c i s i n g ] ju d i c ia l or q u a s i - j u d i c i a l
funct ions;*
(7) In all civil act io ns specia l pr o cee d i ng s *
' T h e b r a c ke t e d po r tio n in Par . (6 ) a p p e a r s to be a t y p o g r a p h i c a l
e r r o r by r e p e t i t io n , wh i l e the i n d i c a t e d po r tio n in Par. (7) sho u l d hav e a
c o n j u n c t i o n b e t we e n "civ il ac t io ns " an d "s pe c ial p r o ce e d i n g s . "

41
R E M E D I A L LA W C O M P E N D I U M

falling wit hin the exclusive original jur isdict ion of a


Juvenile and Domest ic Relat ions Court and of the
Court of Agrarian Relat ions as now provided by law;
and
(8) In all ot her cases in which the de ma nd ,
exclusive of int er est , damages of what ever kind,
attorney' s fees, lit igat ion expenses and costs or the
value of t he propert y in cont roversy exceeds One
hundr ed t ho usand pesos (PlOO.OOO.OO) or, in such
ot her cases in Met ro Manila, where t he de ma nd,
exclusive of the abovement ioned items exceeds Two
hundr ed t housand pesos (P200.000.00)." (As amen•
ded by R.A. 7691)
X X X

"Sec. 21 . Original jurisdiction in other cases. —


Regional Trial Court s shall exercise original jur isdict ion:
(1) In t he issuance of wr it s of certiorari, prohi•
bition, mandamus, quo warranto, habeas corpus, and
injunct ion which may be enforced in any par t of t heir
respect ive regions; and
(2) In act ions affecting ambassador s and other
public minist ers and consuls."
"Sec. 22 . Appellate jurisdiction. — Regional Tr ial
Courts shall exercise appellat e jur isdict ion over all cases
decided by Met ropo lit an Trial Court s, Municipal Trial
Courts, and Municipal Circuit Trial Court s in t heir re•
spect ive t er r it or ia l jur isd ict io ns. Such cases shall be
decided on the basis of the ent ire me m o r a nd a and/or
briefs as may be submit t ed by the part ies or required by
the Regional Trial Court s. The decisions of the Regional
Trial Court s in such cases shall be appealable by petit ion
for review to the I nt er med iat e Appellat e Court which
may give i t due course only when t he pet it ion shows
prima facie t hat the lower court has committed an error of
fact or law t hat will war r a nt a reversal or modification of

42
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

the decision or judg me nt sought to be reviewed."


"Sec. 23 . Special jurisdiction to try special cases. —
The S upr eme Court may designat e cert ain br anches of
the Regional Trial Court s to hand le exclusively criminal
cases, juvenile and domest ic r elat io ns cases, agr ar ia n
cases, ur ban land reform cases which do not fall under
the jur isd ict io n of quasi- jud ic ia l bodies and agencies,
and/or such ot her special cases as the S upr e me Court
may det er mine in the int er est of a speedy and efficient
administ r at io n of just ice."

NO TES

1. R.A. 7691 , which took effect on April 15, 1994


(see Appendix N), e xp a nd e d the ju r i s d ic t io n of the
met r o po l it a n , mu n i c ip a l an d mu n ic ip a l c ir cu it t r ia l
court s in civil an d cr imina l cases, t he ame nded civil
jur isdict ion being set out hereina ft er. In Administ rat ive
Circular No. 09-94 (see Appendix O), the S upr eme Court,
by way of gu id e l i ne s in t he i m p l e m e nt a t io n of said
amendat or y Act, made the clarification t hat:
"2 . The e xc l u s io n of t he t er m ' d a m a g e s of
w hat e ver kind' i n d e t e r m i n i n g t he ju r is d ict io na l
a mo un t UNDE R Sect io n 19(8) and Sect ion 33(1)
of
B.P. Blg. 129, as amended by R.A. No. 7691, applies
to cases where the da mage s are merely incident al
to or a co nsequence of the mai n cause of act ion.
However, in cases where the claim for damages is the
main cause of action, or one of the causes of action,
t he a mo u n t of such claim shall be cons ider ed in
det er mining t he jur isdict io n of the court."
This j u r i s d i c t i o n a l rul e wa s app l ie d in Ouano vs.
PGTT International Investment Corp. (G.R. No. 134230,
July 17, 2002).
On t he mat t e r of the jur isdict io nal amo unt in civil
cases, R.A. 7691 addit ionally provides:

43
R E M E D I A L LAW C O M P E N D I U M

"Sec. 5. After five (5) years from t he effectivity of


t his Act, the jur isd ict ional a mo u nt s ment io ned in
Sec. 19(3), (4), and (8); and Sec. 33(1) of Bat a s
P amba nsa Blg. 129 as amended by t his Act, shall
b e a d ju st e d t o Two hu nd r e d t ho u s a n d peso s
(P200.000.00). Five (5) years t hereaft er, such jur is•
dictional amount s shall be adjusted further to Three
hu ndr ed t housand pesos (P300,000.00): Provided,
however, That in t he case of Met ro Ma nila, t he
a bo ve me nt io ned ju r is d ict io na l a mo u nt s shall be
adjust ed aft er five (5) year s from the effect ivit y
o f t hi s Act t o Fou r hu nd r e d t ho u s a n d peso s
(P400.000.00)."

2. . The jur isd ict io n of the Regio na l Trial


Court s differs from t hat of the former Courts of First
Inst ance in the following respects:
a. While UNDE R t he Jud ic iar y Act, all act io ns in
admir a lt y and mar it ime jur isd ict io n were exclusive ly
cognizable by the Court of First Inst ance regardless of
the value of the pr o pert y involved or the a mo u n t of
pla int iffs claim (Sec. 44[d]), t hey are now wit hin t he
exclusive jur isdict ion of the Regional Trial Courts only if
the value or claim exceeds P 100,000 or, in Metro Manila,
P200,000, otherwise jur isdict ion is vested in the inferior
courts (Sec. 33).
b. The Jud ic iar y Act vest ed the Court s of F ir s t
I nst anc e wit hexclusive jur isd ict io n in all mat t er s of
probat e, whet her t est at e or int est at e (Sec. 44[e]). The
Regional Trial Courts now have such exclusive jur isdict ion
if t he gross value of the est at e exceeds P 100,000 or, in
Metro Manila, P200.000, otherwise the proceedings are
cognizable by the inferior court s (Sec. 33).
c. Actions for annulme nt of marr iage and all ot her
special cases and proceedings not ot herwise provided for
were exclusively cognizable by the Courts of First Inst ance
under the Judic iar y Act (Sec. 44[e]) or, UNDE R
special
44
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

leg is lat io n, by the J u ve n i l e an d Do me st ic R e lat io n s


Courts. The Juvenile and Domest ic Relat ions Court s and
the Court s of Agr ar ian Reform having been int egrat ed
into t he Regio nal Tr ia l Co urt s, the lat t e r shall have
exc lu s ive o r ig i na l j u r i s d i c t io n over sai d case s an d
proceedings but t hey shall cont inue to apply the special
rules of procedure under the pr esent laws provided for
domest ic relat ions cases and agr ar ia n cases, unless the
same are subsequent ly amended by such law or rules of
court as may be pro mu lgat ed (Sec. 24).

3. The writ s of cert iorar i, prohibit io n, ma nda mu s,


quo warr ant o , habeas corpus, and injunct ion issued by
the R e g io na l T r ia l C o u r t s ar e e n fo r c e a b l e w it h i n
their respect ive regions, while under the Judiciar y Act
(Sec. 44[hJ), t hes e could be enforced only w it hin t he
respect ive provinces and dist rict s under the jur isdict io n
of the Court s of First I nst ance.

4. . The co ncur rent jur isd ict io n bet ween the


Court s of First I nst ance and t he inferior court s in cases
provided for under t he Judic iar y Act has been
elim inat ed. The Regional Tr ia l Court s shall exercise
exclusive original jur isdict io n in gua r d ia ns hip and
adopt ion cases which, under the a me n d me nt s of t he
Judic iar y Act by R.A. 643 and R.A. 644, were wit hin
t he confluent jur isd ict io n of the inferior co urt s. The
co ncurr ent jur isdict io n bet ween the Court s of Fir st
I nst ance and the City Court s over the cases st at ed in
Sec. 3, R.A. 6967, i.e., pet it io ns for change of name of
nat uralized cit izens, cancellat io n or correct ion of
t ypo gr aphica l er ror s in the city regist r y, and e ject me nt
cases wher e t he issue of o wner ship is involved, ha s
likewise been e l i minat ed. Said law i s deemed
r epea led by B.P. Blg. 129 (Lee vs. Presiding Judge,
etc., et al., G.R. No. €8789, Nov. 10, 1986).
5. . The concurrent jur isdict ion bet ween the
Court s o f F ir s t I n s t a n c e an d infer io r co ur t s ha v i n
g bee n abolished, the decisions of the inferior court s in
45
all cases

46
R E M E D I A L LA W C O M P E N D I U M

are now appealable to the Regional Trial Courts, except


cadast r a l and land r egist r at io n cases decided by t he
inferior courts in the exercise of delegated jur isdict io n
(Sec. 34).
6. Admiralt y jurisdict ion regulates marit ime mat t ers
and cases, such as cont ract s relat ing to the t r ade and
bus iness of the sea and essent ially fully mar it i me in
charact er, like mar it ime services, t ransact io ns or casual•
ties (see Macondray & Co. vs. Delgado Bros., Inc., 107
Phil. 781; Delgado Bros., Inc. vs. Home Insurance Co.,
L16131, Mar. 27, 1961; Elite Shirt Factory, Inc. vs.
Cornejo, L-26718, Oct. 31, 1961; Negre vs. Cabahug
Shipping & Co., L-19609, April 29, 1966).

7. Civil act ions in which the subject of the lit igat ion
is incapable of pe cu niar y e st imat io n have invar iabl y
been w it hin t he exclusive original jur isdict io n of t he
courts of general jurisdict ion, i.e., the former Court s of
First I nst ance, now the Regional Trial Co urt s. T hus,
act ions for support which will require t he det er minat io n
of the civil st at us or the r ight to support of the plaintiff,
those for the a nnu l me nt of decisions of lower court s, or
those for the rescission or refor mat io n of cont ract s are
incapable of pecuniar y est imat io n.
a. Where the action supposedly for a sum of money
required the det er minat io n of whet her the plaint iff had
complied wit h the condit ion pr ecedent in t he co nt r act
which, if complied wit h, would ent it le him to the award
of t he amo un t claimed, the act io n is one for specific
per fo r mance and not for a su m of money, hence the
relief sought was incapable of pecuniar y est imat io n and
was wit hin the jur isd ict io n of the t hen Court of Fir st
I nst anc e (Ortigas & Co. vp. Herrera, et al., L-36098,
Jan. 21, 1983).
b. An action to compel the obligor to complet e the
const ruct ion of a house is one for specific per for mance

45
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

and is incapable of pecuniar y est imat io n, hence jurisdic•


tion is vest ed in t he Regional Trial Court. Where the
complaint in said case, however, cont ains an alt er nat ive
pr a ye r for the p a y m e n t to the obligee of a su m not
exceeding t he pr ese nt jur isdict io nal amo unt of F100,000,
or in Metro Manila, P200.000, in lieu of the complet ion of
the construct ion, jur isdict io n is in the inferior court as
such alt er nat ive prayer makes the action one for a sum
of money (see Cruz vs. Tan, 87 Phil. 627).
c. An act ion for P1.250 and/or for the foreclosure of
a chat t el mort gage of personalt y wort h F15,340 (now, it
should be more t ha n PIOO.OOO or, in Met r o Manila,
P200.000 ) wa s UNDE R the jur isd ict io n of the Court of
First I nst ance because of t he lat t e r alt er nat ive relief
sought (Good Development Corp. vs. Tutaan, et al., L-
41641, Sept. 30,1976). Jur isdict io n was likewise vested in
the Court of Fir st I nst ance where none of the claims of
the par t ner s hip ' s credit ors exceeded P2.000 but the suit
also sought the nullificat ion of a cont ract executed by
and bet ween the former par t ner s, as the lat t er cause of
action is not capable of pecuniar y est imat io n (Singson, et
al. vs. Isabela Sawmill Co., et al., L-27343, Feb. 28, 1979).
d. Wher e the case hinges upon t he correct int er•
pret at ion of the renewal clause of a lease contract, the
action is not for unlawful det ainer but one which is not
capable of pecuniar y est imat io n and is, therefore, outside
the jur isdict io n of the inferior court (Vda. de Murga vs.
Chan, L-24680, Oct. 7, 1968). But where the eject ment
case was decided against the defendant s because of non•
payme nt of r e nt a ls, alt ho ugh the int er pr et at io n of the
renewal clause of the lease cont ract was also involved
t herein, the same was wit hin the jur isdict ion of the in•
ferior court s (Nueva Vizcaya Chamber of Commerce vs.
CA, et al., L-49059, May 29, 1980).

47
R E M E D I A L LA W C O M P E N D I U M

III. Family Courts:


1. On October 28, 1997, Congress enact ed R.A.
8369 ( F a mi l y Co ur t s Act of 1997; see Appendix P)
est ablishing a Family Court in every province and city
and, in case the city is the provincial capit al, t he Family
Court shall be est ablished in the municipalit y wit h the
highest populat ion. Pending the est ablishment of such
Family Court s, the Supreme Court shall designat e the
same from among the br a nc he s of the Regio nal Trial
Court s enumer at ed in the Act; and in ar eas where t here
are no Family Co urt s, t he cases which ar e w it hin its
exclusive original jur isdict ion shall be adjudicat ed by the
Regional Trial Court.

2. . Furt her amendat ory of the provisions of B.P. Blg. 129, as


amen exclusive original jur isdict ion in the following civil cases
or proceedings:

a. Pet it io ns for guar dia ns hip, custody of children,


habeas corpus in relat ion to the latt er;
b. . P et it io n s for a do pt io n of c h i l d r e n an d
the revocat ion thereof;
c. Complaint s for annu lme nt of marr iage, declarat ion
of nullit y of marr iage and those relat ing to mar it al st at us
and propert y relat ions of husband and wife or those living
t o get her UNDE R different st at u s and a gr e e me nt s , and
pet it ions for dissolut ion of conjugal part ner ship of gains;
d. Pet it ions for support and/or acknowledgment ;
e. S ummar y judicial proceedings brought under the
provisions of Execut ive Order No. 209 (Family Code of
the Philippines);
f. Pet it ions for declarat ion of st at us of children as
abando ned, dependent or neglected children, pet it ions
for volunt ary or invo lunt ar y commit ment of children; the
su s pe ns io n , t e r m i n a t io n , or r e st o r at io n of p a r e nt a l
aut hor it y under P.D. 603, Execut ive Order No. 56 (Series
48
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

of 1986), and ot her relat ed laws;


g. Pet it ions for the const it ut io n of the family home;
and
h. Cases of domest ic violence against women and
children, as defined t herein, but which do not const it ut e
cr iminal offenses subject to cr imina l proceedings and
penalt ies.

3 . I m p l e m e n t i n g the fo r ego ing pr o vis io ns , the


Supreme Court approved on March 4, 2003 the Rule on
D e c l a r a t io n of Abso lut e Null it y of Void M a r r i a g e s
an d A n n u l m e n t o f Vo ida bl e M a r r i a g e s i n A.M.
No. 02-11-10-SC (see Appendix AA) and the Rule on Lega
l S e p a r a t i o n i n A.M. No. 02 - 11 - 11 - S C (see Appendix
BB).

IV. Met ropo lit an Trial Court s, Municipal Trial Court s


and Municipal Circuit Trial Court s:

"SEC. 33 . Jurisdiction of Metropolitan Trial Courts,


Municipal Trial Courts and Municipal Circuit Trial
Courts in Civil Cases. — Met ro po lit a n Tr ia l Co urt s,
Munic ip a l T r ia l Co ur t s an d Munic ip a l C ir cuit Tr ia l
Courts shall exercise:
(1) E xc lus ive o r ig ina l jur is d ict io n over civil
act ions and pro bat e proceedings, t est ate and int e•
st at e, including t he grant of provisio nal remedies in
pr o pe r case s , wher e the va lu e o f t he p e r so na l
propert y, est at e, or amount of the dema nd does not
exceed One hundr ed t ho usand pesos (P 100,000.00)
or, in Metro Manila where such personal propert y,
est at e or amount of the demand does not exceed Two
hundr ed t ho usand pesos (P200.000.00), exclusive of
int erest, damages of what ever kind, attorney' s fees,
lit igat ion expenses, and costs, the amount of which
must be specifically alleged: Provided, That int erest,
damages of what ever kind, attorney' s fees, lit igat ion

49
R E M E D I A L LA W C O M P E N D I U M

e xp e ns e s , an d co st s sha l l b e inc lud e d i n the


det er minat io n of the filing fees: Provided further,
That where t her e are several claims or causes of
act ion bet ween the same or different par t ies em•
bodied in the same complaint , the a mo unt of the
demand shall be the totalit y of the claims in all t he
causes of action, irrespect ive of whet her the causes
of act io n aro s e ou t of the sam e or d i f fe r e n t
t ransact ions;
(2) Exclusive original jur isdict ion over cases of
forcible entry and unlawful det ainer: Provided, That
when, in such cases, the defendant raises the question
of owner ship in his pleadings and the quest io n of
possession cannot be resolved wit hout deciding the
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession; and
(3) Exclusive origina l jur isd ict io n in all civil
actions which involve title to or possession of, real
propert y, or any int erest t herein where the assessed
value of the propert y or int er est t her ein does not
exceed Twent y t housand pesos (P20.000.00) or, in civil
act ions in Metro Manila, where such assessed value
does not exceed Fifty t housand pesos (P50.000.00)
exclusive of int er est , damage s of w ha t ever kind,
a t t o r n e y ' s fees, l it ig a t io n e xp e n s e s an d co st s :
Provided, That in cases of land not declar ed for t axat ion
purposes the value of such propert y shall be
det er mined by t he assessed value of the adjacent
lots." (As amended by R.A. 7691)
"SEC. 34. Delegated jurisdiction in cadastral and
land registration cases. — Met ropo lit an Trial Court s,
Munic ipa l Trial Co ur t s, and Munic ipal C ir cuit Tr ia l
Court s may be assigned by t he Supre me Court to hear
an d d et e r m i ne c a d a s t r a l or land r e g i s t r at io n cases
covering lots where t here is no controversy or opposit ion,
or contested lots where the value of which does not exceed

50
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

One hundr ed t ho usand pesos (PIOO.OOO.OO), such value


to be ascert ained by t he affidavit of t he claimant or by
agreement of the respect ive claimant s if t here are more
t han one, or from the correspo nding tax declar at ion of
the real propert y. Their decisions in t hese cases shall be
appealable in t he same ma nner as decisions of the Re•
gional Trial Courts." (As amended by R.A. 7691)
"Sec. 35. Special jurisdiction in certain cases. — In
the absence of all the Regional Trial Judges in a province
or city, any Met ropo lit an Trial Judge, Municipal Tria l
Judge, Municipal Circuit Trial Judge may hear and decide
pet it ions for a writ of habeas corpus or applicat ions for
bail in cr iminal cases in the province or city where the
absent Regional Trial Judges sit."

NO TES

1. The jur isdict io nal a mount wit hin the exclusive


or igina l jur is d ict io n of the infer io r court s ha s been
incr eased to PIOO.OOO, or in Met ro Manila, P200.000
exclusive of int er est s, damages, attorney' s fees, lit igat ion
expenses and costs, but wit h the proviso t hat the amount
thereof must be specifically alleged.
2. Unlike the jur isdict ional t est in jo inder of claims
or causes of act io n in the same co mp la int UNDE R t he
Jud ic iar y Act (Sec. 88), the t ot alit y of all t he claims
alleged in all t he cau se s of act ion shall fur nish the
ju r is d ict io na l t es t w he t he r the sam e per t a i n s t o the
same or different part ies and irrespect ive of whet her the
causes of act io n aro s e ou t of the sam e or differ ent
t ransact io ns, but subject to the rule in Sec. 6, Rule 3 if
permissive joinder of part ies is involved.
3. Under the Judiciar y Act (Sec. 88), an inferior court
could issue the wr it s of pr e lim inar y a t t a c h m e n t and
replevin where the principal act ion was wit hin its juris•
dict ion, an d the wr i t of p r e l i m i n a r y pr o h ib it o r y or

51
R E M E D I A L LA W C O M P E N D I U M

ma ndat or y injunct ion but only in forcible ent r y cases


(cf. Sec. 3, Rule 70; Art. 539, Civil Code). Under B.P. Blg. 129, provided t hat
jur isd ict io n, in addit io n to the foregoing pro vis io na l
remedies an inferior court can appoint a receiver and it
has jur isdict ion to issue a writ of pr eliminar y injunct ion
in eit her forcible ent ry or unlawful det ainer cases.

4. The inferior courts now have probat e jurisdic•


tion where the gross value of the est at e, whet her t est at e
or int est at e, does not exceed P 100,000, or if in Met ro
Manila, P200.000. However, it has been held under the
former provision where the jur isd ict io na l amo unt was
only up to P20.000, t hat where the propert y was the only
one wherein the decedent had any propriet ar y r ight s, is
conjugal in nat ur e, it is the total value of such conjugal
propert y, and not only the value of t he shar e of t he
decedent t herein, which should furnish t he jur isdict io nal
t est. This is because the set t le me nt proceedings will
necessarily ent ail the disso lut ion and sett lement of the
conjugal part nership and the propert y thereof (Fernandez,
etc., et al. vs. Maravilla, L-18799, Mar. 31, 1964). Thus,
under the pr esent jurisdict ional rule, if the only propert y
of the conjugal part ner ship located outside Metro Manila
has a gross value of P 150,000, while said decedent 's share
t herein which const it ut es his est at e is normally P75.000
in value, the proceedings will have to be inst it ut ed in the
Regional Trial Court since the total value of said propert y
exceeds the probat e jurisdict ion of the inferior court.

5. . The r e g l e m e n t a r y per io d s for a p p e a l s


from judg me nt s or final orders of the different t rial
court s have been made uniform at 15 days from receipt
thereof, except in special pr oceedings, cases wher ein
mult ip le appeals are permitt ed, and habeas corpus
cases. For a detailed discussion on the bases, modes
and periods for appeal from and to different court s,
see Lacsamana, et al. vs. The Hon. Second Special Cases
Division of the

52
J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 1 9 8 0

Intermediate Appellate Court, et al. (G.R. Nos. 73146-53,


Aug. 26, 1986), set out after Sec. 8, Rule 40 in t his volume.
Note also the changes t hat have super vened since t he n
by r easo n of the 1997 r evis io n of the Rules of Civil
Procedure and relevant decisions of t he Supreme Court,
as they are discussed in the corresponding part s of t his
work.

An a mended out line of the pr esent jur isdic t ion of our


courts in civil cases is pr esent ed in the succeeding pages.
6. A not able init iat ive is the super vening adopt ion
by the S upr eme Court of the "Rule of Procedure for small
claims" on S ept ember 9, 2008 to take effect on October 1,
2008 aft e r the r e q u is it e p u bl i c a t io n . Thi s Rule i s
reproduced in full, toget her wit h the forms and papers
involved in its operat ion and processes (see Appendix EE)
and are spelled out in simple details as to abviat e the need
for clarifying co mme nt s for now. However, should t he
applicat ion and fut ure wor kings of t he Rule P ro duce
s i t u a t i o n s wh ic h wo ul d r e q u i r e a m e n d m e n t s o r
explanat ion, the mat t er will be duly brought to the reader' s
attent ion, wit h a report of the court 's act ion t hereon.

53
R E M E D I A L LA W C O M P E N D I U M

JURIS DICTIO N IN CIVIL CASES

I. S UPREM E COURT
A. Original
1. Exclusive
a. P et it io n s for cert io r ar i, pro hibit io n or
ma nda mus against :
(1) Court of Appeals;
(2) Court of Tax Appeals;
(3) S a nd ig a nba ya n;
(4) Commission on Elect ions; and
(5) Commission on Audit.
2. Concurrent
a. Wit h the Court of Appeals
(1) Pet it ions for cert iorar i, prohibit ion or
ma nda mu s against :
(a) Regional Trial Courts;
(b) Civil Service Commission;
(c) C e nt r a l Bo ar d of A s s e s s m e n t
Appeals;
(d) Nat io nal Labor Relat ions Com•
mission; and
(e) Ot her quasi-judicial agencies.
b. Wit h t he Court of Appeals and Regional
Trial Court s
(1) Pet it ions for cert iorar i, prohibit ion or
ma nda mu s against court s of the first
level and ot her bodies; and
(2) Pet it ions for habeas corpus and quo
war r ant o.
c. Wit h Regional Trial Court s
(1) Act ions against ambas sado r s, ot her
public minist ers and consuls.

54
J U R I S D I C T I O N I N CIVI L C AS E S

B. Appellate
1. Pet it ions for review on cert iorari against:
a. Court of Appeals;
b. Court of Tax Appeals;
c. S and ig a nba ya n; and
d. Regional Trial Court s in cases invo lving —
(1) C o n s t i t u t i o n a l i t y or va lid it y of a
t r e at y , i n t e r n a t i o n a l o r execut ive
agreement , law, president ia l decree,
p r o c l a m a t i o n , o r der , i n s t r u c t i o n ,
ordinance, or regulat ion;
(2) Legalit y of a tax, impost, assessment ,
toll or a penalt y in relat ion t heret o;
(3) Jur isdict io n of a lower court; and
(4) Only errors or quest ions of law.

II. COURT OF AP P E AL S
A. Original
1. Exclusive
a. Act ions for annu l me nt of judg ment s of
Regional Trial Courts.
2. . Concurrent
a. Wit h the Supreme Court (see Par. 2, sub-
par, a. on the original jur isdict ion of the
S upr eme Court); and
b. Wit h t he Supreme Court and the Regional
Trial Court s (see Par. 2, sub-par, b., loc.
cit.).
B. Appellate
1. Ordinar y appeals from:
a. Regio nal T r ia l Co urt s , except in cases
exclusively appe a la ble to t he S upr eme
Court, supra; and

55
R E M E D I A L LAW C O M P E N D I U M

b. Family Courts.
2. Appeal by petit ion for review from:
a. Civil Service Commission;
b. Cent ral Board of Assessment Appeals;
c. Securit ies and Exchange Commission;
d. Land Regist rat ion Aut horit y;
e. Social Securit y Commission;
f. Office of the President ;
g. Civil Aeronaut ics Board;
h. Bureaus under the Int ellect ual Propert y
Office;
i. Nat ional Electrification Administ rat io n;
j . Energy Regulatory Board;
k. National Telecommunicat ions Commission;
1. D e p ar t me n t of Agr ar ia n Reform
UNDE R
R.A. 6657;
m. Government Service Insurance S yst em;
n. Employees Compensat ion Commission;
o. Agr icult ural Invent ions Board;
p. Insurance Commission;
q. Philippine Atomic Energy Commission;
r. Board of I nvest me nt s;
s. Construction Industry Arbitrat ion Commis•
sion;
t. Office of t he Ombuds man, in administ ra•
tive disciplinary cases; and
u. Any ot her quasi- judicial agency, inst ru•
me nt a lit y, board or commissio n in the
exercise of its quasi- jud ic ia l funct io ns,
such as volunt ary ar bit r at or s.
3. Pet it ions for review from the Regional Trial
Court s in cases appealed t her et o from the
lower court s. 56
J U R I S D I C T I O N I N CI VI L C A S E S

III. REG IONAL TRIAL COURTS


A. Original
1. Exclusive
a. Actions the subject mat t ers whereof are not
capable of pecuniar y est imat io n;
b. Act ions involving t it le to or possession of
real propert y or an int erest t herein, wher e
the assessed value of such propert y exceeds
P 20.000 or, in Met r o Manila, P50.000 ,
exc ep t for cible e nt r y an d u n l a w fu l
det ainer;
c. Act ions in admir alt y and mar it ime jur is•
diction where the demand or claim exceeds
PIOO.OOO or, in Met ro Manila, P200.000;
d. Mat t er s of probat e, t est at e or int est at e,
where the gross value of the est at e exceeds
P100,000 or, in Metro Manila, P200.000;
e. Cases not wit hin the exclusive jur isdict io n
of any court, t ribunal, person or body exer•
cising judicial or quasi-judicial functions;
f. Act ions and special proceedings wit hin the
exclusive original jur isdict ion of the Court
of Agrar ian Relat ions as now provided by
law; and
g. Ot her cases where the demand, exclusive
of i nt e r e st , d a ma g e s , a t t o r ne y' s fees,
lit igat ion expenses and costs, or the value
of t he propert y exceeds P 100,000 or, in
Metro Manila, P200,000.
2. Concurrent
a. Wit h t he Supreme Court:
(1) Act ions affecting ambassador s, other
public minist ers and consuls.
b. Wit h t he S upreme Court and the Court of
Appeals:
57
R E M E D I A L LA W C O M P E N D I U M

(1) Petitions for certiorari, prohibit ion and


mandamus as stated in par. 2, sub-par.
b on the original jur isdict io n of the
Supreme Court.
(2) Pet it ions for habeas corpus and quo
warr ant o.
B. Appellate
All cases decided by lower court s in t hei r
respective t erritorial jur isdict ions.

IV. FAMILY COURTS


A. Original
1. Exclusive
a. P et it io n s for gu a r d ia n s h i p , cust ody of
children, habeas corpus in relat ion to the
latter;
b. Pet it ions for adopt ion of children and t he
revocat ion thereof;
c. Co mpla int s for a nnu l m e nt of mar r iage ,
declarat ion of nullit y of marr iage and those
r e lat ing to mar it a l st at u s and pro pert y
r e lat io ns of hu s ba n d and wife or t hose
living toget her under different st at us and
agreement s, and pet it ions for dissolut ion
of conjugal part ner ship of gains;
d. P et it io n s for suppo r t and/ o r ackno w l•
edgment ;
e. . S u m ma r y judic ia l pr o ceeding s
br o ugh t under the provisio ns of
Execut ive Order No. 209 (Family Code of
the Philippines);
f. P et it io n s for d e c l a r a t io n of s t a t u s of
c hi ld r e n a s a ba n d o n e d , d e p e n d e n t o r
neglect ed children, for the vo lunt ar y or
invo lunt ar y co mmit ment of children, and
for t he s u s p e n s i o n , t e r m i n a t i o n , o r
58
J U R I S D I C T I O N I N CI VI L C A S E S

r est o r at io n of par e nt a l aut ho r it y


UNDE R
P.D. 603 , Execut ive Order No. 56, s. 1986,
and ot her relat ed laws;
g. Pet it ions for the const it ut io n of the family
home; and
h. Cases of domest ic violence aga inst women
and children, as defined t herein, but which
do not const it ut e criminal offenses subject
to criminal prosecut ion and penalt ies.

V . M E T R O P O L I T A N , M U N I C I P A L , AN D M UNI •
CI P A L C I R C U I T T RI AL COU RT S
A. Original
1. Exclusive
a. Act ions involving personal propert y valued
at not more t ha n P 100,000 or, in Metro
Manila, =P200,000;
b. Act ions d e ma nd i n g sum s of money not
exceeding P 100,000 or, in Metro Manila,
P200.000, exclusive of int erest, damages,
at t o r ne y' s fees, lit igat ion expenses, and
costs;
c. Act ions in admiralt y and mar it ime jur is•
diction where the demand or claim does not
exceed P 100. 000 or, in Met r o Manila ,
P200,000, exclusive of int erest, damages,
at t or ney' s fees, lit igat ion expenses, and
costs;
d. Probat e proceedings, t est at e or int est at e,
where the gross value of t he est at e does
not exceed P 100,000 or, in Metro Manila,
P200.000 ;
e. . Fo r cible ent r y an d unlaw fu l
d e t a i n e r cases;

59
RUL E 1 REMEDIA L LA W C O M P E N D I U M SEC . 1

f. Actions involving title to or possession of


real pr opert y, or any int er es t t her ein ,
where the assessed value does not exceed
P20.000 or, in Metro Manila, P50.000, ex•
clusive of int erest , damage s, at tor ney' s
fees, lit igat ion expenses, and costs; and
g. Provisional remedies where the principal
action is within t heir jurisdict ion.
2. Delegated
a. . C a d a s t r a l or land r e g i s t r a t i o n case
s covering lots where t here is no
controversy or opposit ion, or contested
lots the value of which does not exceed P
100,000, as may be assigned by the
Supreme Court.
3. Special
a. Pet it ions for habeas corpus in the absence of
all t he Regio nal Tr ial Judge s in t he
province or city.
4. S ummar y Procedure
a. Forcible entry and unlawful det ainer cases
irrespect ive of the amount of damages or
unpaid rent als sought to be recovered; and
b. All other court cases, except probat e pro•
ceedings, where the total claim does not
exceed P 10,000, exclusive of int er est and
costs.

60
RUL E 1 GENE R A L P RO VISION S SE C . 1

D. THE REVIS ED RULES OF COURT*

P u r s u a n t to the p r o v i s io n s of se ct io n 5(5 ) of
Art icle VIII of the Co nst it ut io n, t he S upr e me Court
hereby ado pt s an d p r o mu l g a t e s the following r ule s
c o nc e r n i n g t he p r o t e c t i o n an d e n f o r c e m e n t o f
const it ut iona l r ight s, pleading, pract ice and procedure in
all co urt s , the ad mis s io n to the pr act ice of law, the
I nt e g r a t e d Bar , an d legal a s s i s t a n c e t o the u nder •
privileged:

RULE 1

G ENERAL PRO VIS IO NS

S ec t i o n 1. Title of the Rules. — Th es e Ru le s shall


be kn ow n an d ci ted as the Ru le s of Cou rt. (1)

NO TES

1. The Rules of Court have the force and effect of


law (Shioji vs. Harvey, etc., et al., 43 Phil. 333; Alvero
vs. De la Rosa, etc., et al., 76 Phil. 428; Conlu vs. CA,
et al., 106 Phil. 940). They are not penal st at ut es and
cannot be given ret roact ive effect (Rilloraza vs. Arciaga,
L 23848, Oct. 31, 1967; Bermejo vs. Barrios, L-23614,
Feb. 27, 1970). However, st at ut es regulat ing the proce•
dure of courts may be made applicable to cases pending
at the time of t heir passage and are retroact ive in t hat
sense (see Alday vs. Camilon, G.R. No. 60316, Jan. 31,
1983).

2. "Whe n by law ju r is d ict io n is co nfer r ed on a


court or judicial officer, all auxiliary wr it s, processes and

* T h e a e r e v i s e d R u l e s o f Civ i l P r o c e d u r e wer e a p p r o v e d b y the


S u p r e m e C o u r t i n it s R e s o l u t i o n i n Ba r M a tte r No . 8 0 3 , d at e d April 8 ,
19 97 , to tak e e ffe c t on J u l y 1 , 1 997 .

61
RUL E 1 REMEDIA L LA W C O M P E N D I U M SE C . 2

ot her means necessar y to carry it into effect may be


employed by such court or officer; and if the procedure to
be followed in t he exercise of such jur isdict io n is not
specifically point ed out by law or by t hese rules, any
suitable process or mode of proceeding may be adopted
which appear s conformable to the spirit of said law or
rules" (Sec. 6, Rule 135).
It will be observed t hat t his relevant provision of
Rule 135 refers only to auxiliary writ s, processes and
ot he r neces sar y mea n s to car r y out the jur isd ict io n
specifically conferred by law on the court over the main
suit or proceeding. See the relat ed discussion over t his
ancillary jur isdict ion of courts under Sec. 1, Rule 57.
3. The Code of Civil Procedure (Act No. 190) is one
of the majn sources of the old Rules of Court which took
effect or/July 1, 1940 and, in t urn, of the pr esent revised
Rules. However, certain provisions of the Code of Civil
Procedure which were not incorporat ed in or repealed
by the Rules are still considered in force. These provisions
are:
"7^ "Sec. 42 . Exceptions in Favor of Persons under
Disability. — If a person ent it led to bring the act ion
ment ioned in the preceding sect ions of t his chapt er
(Sec. 40. Action for recovery of title to or possession
of real property or an interest therein) is, at the t ime
the cause of act ion accrues, wit hin t he age of minor•
ity, of unsound mind or in prison, such person may,
after the expirat ion of ten years from t he time the
cause of act ion accrues, br ing such act ion wit hin
t hree years after such disabilit y is removed."
"Sec. 45 . Rights Saved to Certain Persons. — If a
person ent it led to bring any act ion ment io ned in
eit her of the two last preceding sect ions (Sec. 43.
Actions other than for recovery of real property;
Sec. 44. Any other action for relief) is, at the t ime t he
cause of action accrues, wit hin the age of minorit y,

62
RUL E 1 GENE R A L P RO VISION S SE C . 3

of unsound mind, or in prison, such person may bring


such act ion wit hin two years after the disabilit y is
removed unless the r ight of act ion is one of those
named in subdivision four of section fort y-t hree, in
which case it may be brought wit hin one year after
such disabilit y is removed."
"Sec. 47 . As to Absent Persons. — If, whe n a
:

cause of action accrues against a person, he is out


of the P h i l i p p i n e I s la nd s , or ha s a bs co nde d or
co ncealed himself, an d ha s no know n or visible
propert y wit hin t he Islands the per iod limit ed for
the co mmencement of the action shall not begin to
run unt il he comes into the Islands or while he is so
absconded or concealed, or unt il he has known or
visible propert y wit hin the Islands; and if, after the
cause of action accrues, he depart s from the Philip•
pine I slands, or absconds or conceals himself, the
t ime of his a bsence or co ncea lme nt sha ll not be
co mput ed as any par t of the period wit hin which
time the cause of act ion should be brought."
It should be noted t hat Art. 2270(3) of the Civil Code
repeals only the provisions of the Code of Civil Procedure
on prescr ipt ion as far as the lat t er may be inconsist ent
with the former, and Art s. 1106 to 1155 of the Civil Code
do not provide for the above sit uat io ns. Art. 1108 of said
Code provides t hat ext inct ive prescript ion runs against
minors or incapacit at ed persons only if they have par ent s,
guardians or legal r epr esent at ives.
4* Furt her mo r e, it has been held t hat not all the pro•
visions in the Code of Civil Procedure are remedial in
nat ure, such as those pert aining to prescript ion, the re•
quisit es for making a will, and t he succession to the est at e
of the adopt ed child (Primicias vs. Ocampo, etc., et al., 93
Phil. 446). Specifically wit h respect to the above-quoted
provisions on prescript ion, not being procedural in nat ure,
they cannot be deemed to have been impliedly repealed

63
RUL E 1 R E M E D I A L L AW C O M PE N DI U M SE C . 4

just because they were not incorporated in the Rules of


Court. Being su bst ant ive in nat ur e , and not having
been eliminat ed by subst ant ive law as above explained,
these provisions are consequent ly still in force.
4. In the int erest of just and expedit ious proceed•
ings, the Supreme Court may suspend the applicat ion of
the Rules of Court and except a case from their operat ion
because the Rules were precisely adopted with the pri•
mar y objective of enha nc ing fair t rial and expedit ious
just ice (Republic vs. CA, et al, L-3130304, May 31, 1978).

Sec. 2. In what courts applicable. — Thes e Ru les


shall ap p ly in all the cou rt s, excep t as ot h e rw i s e
p rovi d ed by the S u p re me Court, (n)

NOTES

1. The 1987 Const itut ion provides in Art. VIII thereof


t hat :
"Sec. 5 . The S u p r e m e Co urt sha l l hav e the
following powers:

(5) Pro mulgat e rules concerning the protect ion


and enforcement of const it ut iona l r ight s, pleading,
pract ice, and procedure in all courts, t he admissio n
to the pract ice of law, the I nt egrat ed Bar, and legal
assist ance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposit ion of cases, shall be uniform for
all courts of the same grade, and shall not diminish,
incr ea se, or modify s u bs t a nt i v e r ig ht s . Rules of
procedure of special courts and quasi- judicial bodies
shall r e ma i n effect ive unless d isapproved by t he
Supreme Court."

64
RUL E 1 GENE R A L PRO VI SION S SE C . 6

2. P.D. 946 provided that the "Rules of Court shall


not be applicable to agr ar ian cases, even in a suppletory
charact er" and each Court of Agr ar ian Relat io ns t he n
had the aut hor it y to adopt any appropriat e procedure,
except t hat in cr im ina l and e xpr o pr iat io n cases, t he
Rules of Court shall apply (Sec. 16). Under B.P. Blg. 129,
said agr ar ia n court s were int egrat ed into the Regional
Trial Court s as br anches thereof, and "the lat t er shall
have exclusive original jur isdict io n over said cases and
proceedings but t hey shall cont inue to apply t he special
rules of procedures under the pr esent laws" (Sec. 24).
R.A. 6657 subsequent ly provided for the designat ion
of at least one branch of the Regional Trial Court wit hin
each province to act as a Special Agrar ian Court. The
Special Agrar ian Courts shall have original and exclusive
jur isdict io n over all pet it io ns for the de t er minat io n of
just co mpensat io n to landowner s and the prosecut ion of
all cr iminal offenses under said Act (Secs. 56 and 57).
On t he ot her hand, the Depart ment of Agr ar ian Reform
is vest ed wit h pr imar y jur isd ict io n and quasi- judicia l
powers to det er mine and adjudicat e all ot her agr ar ia n
reform mat t er s. It shall not be bound by the technical
rules of pro cedur e and evidence bu t may emp lo y all
reasonable means to ascert ain the facts in accordance
with just ice, equit y and t he mer it s of the case (Sec. 50).

Sec. 3 . Cases governed. — T h e s e R u l e s s h a l l


gover n the p ro c e d u r e t o b e ob se rv e d i n a ct i o n s ,
civil or cri mi n a l, and sp eci al p roc ee d i n g s .
(a) A civi l act i o n is on e by wh i c h a party sue s
a n o t h e r for the e n f o r c e m e n t or p r o t e c t i o n of a
ri ght , or the p r e v e n t i o n or re d re s s of a wron g ,
(la, R2)
A civil act i o n ma y ei t h e r be ord i n ar y or special.
Both are go ve rn e d by the ru les for ord i n a ry civi l
act i on s, su bj ect to the speci fi c ru les p re sc ri b ed for
a sp eci al civil act i on , (n)

65
RUL E 1 R E M E D I A L L AW COMPENDIU M SEC . S

(b) A cri min al acti on is on e by whi c h the S tate


p r o s e c u t e s a p e r s o n for a n ac t o r o m i s s i o n
p u n i sh ab l e by law. (n)
(c) A sp ecial p ro ce ed i n g is a remed y by wh i c h a
p art y s e e k s to e s t a b l i s h a s t a t u s , a ri gh t , or a
p arti cu lar fact. (2a, R2)

NOTES

1. In the P hilippines, t here is no difference bet ween


a "suit" and an "action" as our courts are courts of law and
equit y (see Lopez vs. Filipinos Cia. de Seguros, L-19613,
April 30, 1966). Likewise, in Amer ican law, the t er ms
"act io n" an d "suit " ar e now near ly , i f not ent ir e l y ,
synonymous (Elmos vs. James, Tex. Civ. App., 282 S.W.
835; Coleman vs. Los Angeles County, 180 Cal. 714, 182
P. 440), or if t here be a dist inct ion, it is t hat the t er m
"action" is generally confined to proceedings in a court
of law, while "suit" is equally applied to prosecut ions at
law or in equit y (Black's Law Dictionary, 6th Ed., p. 1434).

2 . The Supreme Court has inherent jur isdict ion t hat


it can always exercise in set t ings at t ended by unu sua l
cir cumst ances to pr event manifest injust ice t hat could
result to bare technical adherence to the law and impre•
cise jur ispr udence (Co vs. PNB, G.R. No. 51767, June 29,
1982).

3 . In an ordinar y action, t here must be real part ies


in int erest assert ing adverse claims and pr esent ing a ripe
issue (Tolentino vs. Board of Accountancy, 90 Phil. 88).

Sec . 4. In what cases not applicable. — Th es e Rule s


shall not app ly to elect i o n cases , land re gi st rat i on ,
c a d a s t r a l , n a t u r a l i z a t i o n an d i n s o l v e n c y p ro •
c e e d i n g s , and ot h er case s not h erei n p rovi d e d for,
exc ep t by an alog y or in a su p p l et o r y ch a ra ct e r and
w h e n e v e r p ract i cab l e and c on v e n i en t . (R143a)

66
RUL E 1 GENE R A L P RO VISION S SE C . 5

NOTE

1. See Note 3 under Sec. 5, Rule 2. C' r'\

Sec . 5. Commencement of action. — A civil act i o n


i s c o m m e n c e d by the filing of the ori gi n al co mp l ai n t
in court. I f an ad d i t i on a l d e f en d an t i s i mp l ead e d in
a late r p l e a d i n g , the act i o n i s c o m m e n c e d wi t h
regard to hi m on the dat e of the filin g of suc h later
p lead i n g, i rre sp e ct i v e of w h e t h e r the mot i o n for its
ad mi ssi on ^ i f n e ce s sa ry , i s d en i e d by the court. (6a)

NOTES

1. This provision assu mes significance especially


where prescr ipt io n is raised as a defense against the
claim of the plaint iff in the complaint . Thus, as long as
the complaint which commences t he action is filed wit hin
the prescr ipt ive period, the claim alleged t herein is not
barred even if summo ns was served on the defendant after
the prescr ipt ive period (Sotelo vs. Dizon, et al., 57 Phil.
573; Cabrera, et al. vs. Tiano, L-17299, July 31, 1963).
2. Such action may be commenced by filing the
complaint by registered mail. Hence, if t he complaint was
duly sent to the proper court by regist ered mail wit hin
t he pr escr ipt iv e per io d an d i n acco r danc e wit h the
r equir eme nt s of Sec. 3, Rule 13, the fact t hat said com•
plaint, as mailed, was actually received by the clerk of
said court after t he lapse of t he prescr ipt ive period is
immat er ial as the dat e of mailing is considered the date
of the filing of said complaint . However, if t he requisit e
docket fee was actually paid, eit her personally or also by
mail, subsequent to the mailing of said complaint , the
dat e of such payment or the mailing of said a mo un t
therefor shall be considered as the dat e of the filing of
the complaint (Ago Timber Corp. vs. Ruiz, et al., L-23887,
Dec. 26, 1967). Where t here was an u nder as s e s s me n t of
RUL E 1 R E M E D I A L L AW COM PENDIU M SEC . 5

t he docket fee to be paid due to an init ia lly ho nest


difference of opinion as to the nat ure of the action, the
plaint iff was per mit t ed to subsequent ly complet e the
payment by paying the difference (Magaspi vs. Ramolete, L-
34840, July 20, 1982).
3. Ordinar ily, the rule was t hat a case is deemed
filed only upon the payment of the docket fee. The Court
acquires jur isdict ion over the case only upon full pa yment
of such prescribed docket fee. All complaint s, pet it ions,
answers and similar pleadings must specify the amount
of damage s being prayed for bot h in the body of t he
pleading and in t he prayer t herein, and said damages
shall be considered in the assessment of the filing fees;
ot herwise, such pleading shall not be accepted for filing
or shall be expunged from the record. Any defect in the
original pleading result ing in under payment of the docket
fee cannot be cured by amendment , such as by the reduc•
tion of the claim as, for all legal purposes, t here is no
original co mp laint over which t he court has acquired
jur isdict ion (Manchester Development Corporation, et al.
vs. CA, et al., G.R. No. 75919, May 1, 1987).
Ho wever , the a fo r e s t at e d r ulin g in Manchester
Development Corporation, et al. vs. CA, et al. has been
modified as follows: (1) when the filing of the init iatory
pleading is not accompanied by payme nt of the docket
fee, the court may allow payme n t of the fee wit hin a
reasonable time but not beyond the applicable prescript ive
or r eg le me nt ar y period; (2) the same rule applies to
permissive count erclaims, t hir d -part y claims and similar
pleadings; and (3) when t he t rial court acquires jur isdic•
t ion over a cla i m by the filing of the a p p r o p r i a t e
pleading and pa yme nt of the prescribed filing fee but,
subsequent ly, the judgment awards a claim not specified
in the pleadings, or if specified the same has been left
for det er minat io n by the court, the addit ional filing fee
therefor shall const it ut e a lien on the judgment which shall
be enforced and the addit ional fee assessed and collected

68
RUL E 1 GENE R A L PRO VI SION S SE C . 5

by the clerk of court (Sun Insurance Office, Ltd., et al.


vs. Asuncion, et al., G.R. Nos. 79937-38, Feb. 13, 1989).
4. It is true t hat Manchester laid down the rule t hat all
complaint s should specify the amount of the damages
prayed for not only in the body of the complaint but also
in the pr ayer . That rule, however, has been relaxed.
Thus, while the body of the complaint in this case is silent
as to the exact amount of damages, the prayer did specify
the amo u nt . These a mo u nt s were definite enough and
enabled t he clerk of court to comput e the docket fees
payable. Fur t her mo r e, the a mo unt s claimed need not be
init ially st at ed wit h mat hemat ical precision. Section 5(a),
Rule 141 allows an appraisal "more or less," t hat is, a final
det er minat io n is st ill to be made and the fees ult imat ely
found to be payable will eit her be addit ionally paid by or
refunded to the part y concerned, as the case may be. The
part y is, t herefore, allowed to make an init ial pa yme nt of
the filing fees corr espo nding to the est imat ed amount
of the claim subject to adjust ment as to what may later
be proved (Ng Soon vs. Alday, et al., G.R. No. 85879,
Sept. 29, 1989).

5. . Where the act ion involves real property (such


as an accion publiciana) and relat ed claims for damages,
the legal fees shal l be assessed on both the value of
the propert y and t he total amo un t of t he damages
sought. Where the fees prescribed for an action
involving real propert y have been paid but the a mo unt s
for the relat ed damages being de mand ed t her e in are
unspecified, the act io n ma y not b e d i s m i s s e d . The
Court acqu ir e d jur isdict ion over the action involving
real propert y upon t he filing of the c o mp la i n t and
the p a ym e n t of the prescribed fee therefor. It is not
divested of t hat aut horit y by the fact t hat it may not have
acquired jur isdict ion over the accompanying claims for
damages because of lack of specification thereof. Said
claims for damages as to which no amo unt s are st at ed
may simply be expunged or the

69
RUL E 1 R E M E D I A L L AW COMPENDIU M SE C . 6

court, on motion, may allow a reasonable t ime for the


ame nd ment of the complaint so as to allege the precise
amount of the damages and accept payment of the fees
t herefor, provided said claims for damage s have not
become t ime- barred (Tacay, et al. vs. Regional Trial Court
ofTagum, etc., et al, G.R. Nos. 88075-77, Dec. 20, 1989).
6. The amount of docket fees to be paid should be
co mput ed on the basis of the a mo unt of the da mag es
st ated in the complaint. Where, subsequent ly, the judg•
ment awards a claim not specified in the pleading or,
if specified, the same has been left for the det er minat io n
of the court, the add it io na l filing fee t her e fo r shall
co nst it ut e a lien on the ju d g me nt . Such "awar d s of
c la i m s not specified in the p le a d i ng " refer only to
damages arising after the filing of the complaint or similar
p le ad ing . Accor ding ly, the a mo u n t of any claim for
damages ar ising on or before the filing of the complaint
or an y p lead in g sho uld be specified. The except io n
cont emplat ed as to claims not specified or to claims which
alt hough specified are left to the det er mi nat io n of the
court is limit ed only to damages t hat may ar ise aft er
the filing of the co mplaint or similar pleading since it
will not be possible for the claimant to specify or speculat e
on t he amo un t t her eo f (Ayala Corporation, et al vs.
Madayag, et al, G.R. No. 88421, Jan. 30, 1990).

7. It is well settled in our jur isdict io n t hat , unless


o t he r w i s e pr o vid e d by law or r e q u i r e d by pu bli c
int erest , as in quo war r ant o act ions (see Note 3 under
Sec. 11, Rule 66), before bringing an action in or resort ing
to the court s of just ice, all remedies of admin ist r at ive
char act er affecting or det er minat ive of the cont roversy
at t hat level should first be exhaust ed by the aggrieved
part y (Pestanas vs. Dyogi, L-25786, Feb. 27, 1978; Miguel
vs. Vda. de Reyes, 93 Phil. 542; Coloso vs. Board, L-5750,
April 30, 1950). It is likewise t rue, however, t hat the
doctrine of exhaust ion of ad minist r at ive remedies is not a
hard and fast rule.

70
RUL E 1 GENE R A L PRO VI SION S SE C . 6

This Title does not apply and has been disregarded


when: (1) the issue is purely a legal one, and not hing of
an administ r at ive nat ure is to be and can be done (Dauan
vs. Secretary of Agriculture and Natural Resources, et al., L-
19547, Jan. 31, 1967; Aguilar vs. Valencia, L-30396, July
30, 1971; Commissioner of Immigration vs. Vamenta, L-34030,
May 31, 1972; Del Mar vs. Phil. Veterans Adm., L-27299, June
27, 1973; Bagatsing vs. Ramirez, L-41631, Dec. 17, 1976); (2)
insist ence on its observance would r e su l t i n nu l l i f ic at io
n of the c la im be in g a s s e r t e d (Gravador vs. Mamigo, L-24989,
July 21, 1967); (3) the co nt ro vert ed act is pa t ent l y illegal or
was per for med wit hout jur isdict ion or in excess of
jurisdict ion (Industrial Power Sales, Inc. vs. Sinsuat, L-
29171, April 15, 1988);
(4) the respondent is a depar t me nt secretary, whose act s
as an alt e r ego of the P r e s id e n t bea r the implied or
assumed approval of the latter, unless actually disapproved
by him (Demaisip vs. CA, et al, 106 Phil. 237); (5) t here
are c ir c u mst a nc e s ind icat ing the urgenc y of jud ic ia l
int er vent io n (Gonzales vs. Hechanova, L-21897, Oct. 22,
1963; Abaya vs. Villegas, L-25641, Dec. 17, 1966; Mitra
vs. Subido, L-21691, Sept. 15, 1967); (6) the rule does not
provide a plain, speedy and adequat e remedy (Cipriano
vs. Marcelino, L-27793, Feb. 28, 1972); (7) t her e is a
violation of due process (Quisumbing vs. Gumban, G.R.
No. 85156, Feb. 5, 1991; Salinas vs. NLRC, et al,
G.R. No. 114671, Nov. 24, 1999); (8) t here is estoppel on
the part of t he ad minist r at ive agency concerned (Vda. de
Tan vs. Veterans Backpay Commission, 105 Phil 377);
(9) t here is irreparable injury (De Lara vs. Cloribel, 121
Phil. 1062); (10) to require exhaust ion of administ r at ive
remedies would be unreaso nable (Cipriano vs. Marcelino,
et al, 150 Phil. 336); (11) the subject mat t er is a privat e
land in land case proceedings (Soto vs. Jareno, L-38962,
Sept. 15, 1986); an d (12 ) the issu e of e x h a u s t i o n
o f a d m i n i s t r a t i v e p r o c e e d i n g s ha s bee n r e n d e r e d
moot (Carale, etc., et al. vs. Abarintos, etc., et al.,
G.R. No. 120704, Mar. 3, 1997).

71
RUL E 1 REMEDIA L LA W C O M P E N D I U M SE C . 6

Sec. 6. Construction. — Th e s e Ru l e s sh al l be
l i b e ra l l y c o n s t r u e d i n ord e r t o p r o m o t e t h e i r
obj ecti ve of secu ri n g a just, sp eed y and i n e xp en si v e
d i sp osi t i on of every action and p roce ed i n g. (2a)

NOTES

1. This section is a recognit ion of the fact that the


rules of procedure are mere tools designed to facilitate the
at t ainment of just ice. Thus, the liberal const ruct ion of
t hese Rules has been allowed in the following cases:
(1) where a rigid applicat io n will r esult in manifest
failure or miscarriage of just ice; (2) where the int erest of
subst ant ial justice will be served; (3) where the resolut ion
of the motion is addressed solely to the sound and judicious
discret ion of the court; and (4) where the injustice to the
adverse part y is not co mme nsur at e with the degree of his
t ho ught les s nes s in not complying wit h the prescr ibed
procedure (Tan us. CA, et al., G.R. No. 130314, Sept. 22,
1998).

2. In fact, in line with the spirit and purpose of this


section, even t he suspension of the rules may be just ified
in the int erest of fair play. As- early as the case of Vda.
de Ordonez us. Raymundo (63 Phil. 275), it was held t hat
t he court ha s the power to suspen d the r ules, or to
except a part icular case from t heir operat ion, whenever
the ends of just ice so require.
Jur ispr ude nce has laid down the range of r easo ns
which may provide just ificat ion for a court to r est r ict
adherence to procedure, enumer at ing grounds for giving
due course to an ot herwise object ionable appeal by a
suspension of the enforcement of procedural rules, viz.:
(1) in m a t t e r s of life, l i be r t y , ho no r or p r o p e r t y ;
(2) co u nse l' s neg l ig e nc e w it ho u t an y p a r t i c i p a t o r y
negligence on the part of the client; (3) the exist ence of
special or compelling circumst ances; (4) the evident mer it s
of the case; (5) a cause not ent irely at t r ibut able to the

72
RUL E 1 GENE R A L PRO VI SION S SE C . 6

fault or negligence of the part y favored by the suspension


of the rules; (€) the lack of any showing t hat the review
sought is merely frivolous and dilat or y; and (7) the
ot her part y will not be unjust ly pr eju diced t her e b y
(Baylon vs. Fact-finding Intelligence Bureau, etc., et al.,
G.R. No. No. 150870, Dec. 11, 2002).

3. . While the Rules are liber ally co nst r ued,


the provisions on reglementary periods are strictly applied
as t hey are "deemed indispensab le to the prevention of
needless delays and necessary to the orderly and speedy
discharge of judicial business" (Alvero vs. De la Rosa, et
al., 76 Phil. 428; Valdez vs. Ocumen, et al, 106 Phil 929;
Mangali, et al. vs. CA, et al, L-47296, Aug. 21, 1980; cf.
Legaspi-Santos vs. CA, et al, G.R. No. 60577, Oct. 11, 1983) and
strict compliance t herewit h is mandat ory and imper at ive
(FJR Garments Industries vs. CA, et al, L-49320, June
29, 1984). The same is t rue with respect to the rules
on the ma nner and periods for perfect ing appeals
(Gutierrez vs. CA, et al, L-25972, Nov. 26, 1968), and the
r equir eme nt s as to what should appear on the face of
a record on appeal (Workmen's Insurance Co., Inc. vs.
Augusto, et al, L-31060, July 29, 1971), alt hough these rules
have so met imes been relaxed on equit able
considerat ions (see Pimentel, et al. vs. CA, et al, L-39684, June
27, 1975; Bagalamon, et al. vs. CA, et al, L-43043, Mar.
31, 1977).
All t hing s co nsider ed, the S upr eme Court called
attent ion to the fact t hat "(v)ules of procedure exist for a
purpose, and to disregard such rules in the guise of liberal
construction would be to defeat such purpose. Procedural
rules are not to be disclaimed as mere technicalit ies. They
may not be ignored to suit the convenience of a part y.
Adject ive law e n s u r e s the effect ive e nfo r c e me nt of
s u b s t a nt i v e rights t hr o u g h the o r derl y and speedy
ad m i n is t r at io n of just ice. Rules are not int ended to
hamper litigants or complicate lit igat ion. But they help
provide for a vital syst em of justice where suitors may be

73
RUL E 1 REMEDIA L LA W C O M P E N D I U M SE C . 6

heard in the correct form and manner, at the prescribed


time in a peaceful though adversar ia l confrontation before
a judge whose aut horit y lit igants acknowledge. Public
order and our syst em of just ice are well ser ved by a
co nsc ie nt io us o bser va nce of the r ules of pr o c ed ur e ,
p a r t ic u l a r l y by g o ve r n me n t officials an d ag e nc ie s "
(Kowloon House/Willy Ng vs. CA, et al., G.R. No. 140024,
June 18, 2003, quoted in United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R.
No. 141117, Mar. 24, 2004).

74
CIVIL ACT IO NS

ORDINARY CIVIL ACTIONS

RULE 2

CAUSE OF ACTION

S e c t i o n 1. Ordinary civil actions, basis of. —


Every o rd i n a r y ci vi l act i o n mu s t be b ase d on a
cau se of acti on , (n)

Sec. 2. Cause of action, defined. — A c a u s e of


act i o n i s the ac t o r o m i s s i o n b y w h i c h a p art y
vi olat es a ri gh t of an ot h er , (n)

NO TES

1. See Note 2 of t he Preliminar y Considerat ions and


Notes 2 and 5 under Sec. 47, Rule 39.
2. A cause of action is the delict or wrongful act or
omission commit t ed by the defendant in violation of the
primar y right of the plaintiff. A single act or omission
can be violative of various rights at the same time but
where there is only one delict or wrong, there is but a
single cause of action regardless of the number of r ight s
violated belonging to one person. Nevertheless, if only
one injury resulted from several wrongful acts, only one
cause of action arises. The singleness of a cause of act ion
lies in the singleness of the delict or wrong violat ing the
rights of one person (Joseph vs. Bautista, et al., L-41423,
Feb. 23, 1989).

Sec. 3. One suit for a single cause of action. — A


party ma y not i n st i t u t e more tha n on e suit for a
single cau s e of act i on. (3a)

76
RUL E 2 R E M E D I A L L AW COM PENDIU M SE C . 4

Sec. 4. Splitting a single cause of action; effect of.


— If tw o or more su it s are i n st it u t ed on the b asi s of
the sam e cau s e of act i o n , the fi li n g of on e or a
j u d g m en t upo n the merit s in any one i s avai lab le
as a grou nd for the d i smi ssa l of the ot h ers. (4a)

NOTES

1. Splitting a cause of action is the act of dividing a


single cause of action, claim or demand into two or more
par t s , and bringing suit for one of such parts only,
int ending to reserve the rest for anot her separate action.
The purposes of the rule are to avoid har a s s me n t and
vexat ion to the defendant and to obviate mult iplicit y of
suits.
•'. 2. Where a single cause of act ion has been split,
the remedy of the defendant is to move to dismiss under
Rule 16 on the ground t hat t her e i s a no t he r act ion
pending bet ween the same part ies for the same cause,
or litis pendentia (Sec. lfej); or, if t he first action has
alr eady been finally t er minat ed, on t he ground of res
judicata (Sec. IffJ).

3. Thus, where the first ,act ion was for recovery of


land, anot her action for the value of plaint iff s share in
the produce of said land is barred, as a single cause of
action was split into two suits (Jalandoni, et al. vs. Martir-
Guanzon, et al., 102 Phil. 859; cf. Pascua vs. Sideco, 24
Phil. 26). The same doctrine applies where, in the action
to recover the land, the plaint iff sought to recover the
fruit s alr eady appr o pr iat ed by the defe ndant but not
the future fruits which may be realized thereon unt il the
possession of the land, was restored to him. He could
have done so by supple ment al complaint in said action,
failing which he cannot inst it ut e anot her action for t hat
purpose in violat ion of the rule of res judicata (Bayang
vs. CA, et al., G.R. No. 53564, Feb. 27, 1987).

76
RUL E 2 CAUS E O F AC T I O N SE C . 4

4. Where a contract is to be performed periodically,


as by inst a ll me nt s, each failure to pay an inst allment
const it ut es a cause of action and can be the subject of a
separat e suit as the inst allment falls due, or it can be
included in the pending suit by suppleme nt al pleading.
However, if at the time of the bringing of suit, several
installments are already due, all must be included as
integrating a single cause of action, otherwise those not
included will be barred (Larena vs. Villanueva, 53 Phil.
923).

5. Wit ha l, even if t he co nt r act is divisible in its


performance and t he fut ure periodic deliver ies are not
yet due, but the obligor has already manifest ed his refusal
to comply wit h his future periodic obligat ions, "the con•
tract is entire and the breach total," hence t here can only
be one action for damages (Blossom & Co. vs. Manila Gas
Corporation, 55 Phil. 226).

6. Non-payment of a mort gage loan cannot be split


into two act ions, one for payme nt of the debt and the
other for foreclosure of the mort gage, as t here is only
one cause of action (Quiogue, et al. vs. Bautista, et al., L-
13159, Feb. 28, 1962); but an action for collection of a mortgage
loan does not bar anot her for rescission of the mortgage if
such rescission is based on the non-compliance by the
mo rt gagor wit h cert ain ot her condit ions of the mort gage
co nt ract (Enriquez, et al. vs. Ramos, et al., L-16797, Feb.
27, 1963).
7. Where the plaintiff filed the first action for forcible
entry in the belief and on the allegat ion t hat the fence
const ruct ed by t he defendant int r uded upon only one
lot, but, after the relocat ion survey, he discovered t hat
the other portion of the same fence extended to anot her
lot and as a consequence of which he filed anot her action
for forcible entry upon t hat lat t er lot, the Supreme Court,
while holding that technically t here was a splitt ing of a

77
RUL E 2 R E M E D I A L L AW COMPENDIU M SE C . 5

single cause of action since the alleged forcible entry


constituted only one act, neverth eless sustained the
order of the lower court denying defendant's motion to
dismiss the complaint on the ground of litis pendentia, it
appearing that the first action had not yet been tried at
the time the second action was filed in the same court,
hence the two cases could be tried together as one, or the
second complaint could be treated as an amendment of
the first (Tarnate us. Garcia, et al., L-26266, Dec. 29,
1972).

Sec. 5. Joinder of causes of action. — A p art y ma y


i n on e p l e a d i n g a s s e r t , i n the a l t e r n a t i v e o r
ot h e rw i se , a s man y cau se s o f act i o n a s h e ma y hav e
agai n s t an op p os i n g party, su bj ect to the fo l lo wi n g
con d i t i on s :
(a) The part y j oi n i n g the cau se s of act i o n shall
comp ly wit h the ru les on j oi n d e r of part i es;
(b) The j oi n d e r shall not i n clu d e sp eci al ci vi l
act i on s gove rn e d b y sp eci a l ru les;
(c) Wh ere the cau se s of act i o n are b e t w e e n the
sam e p a rt i e s but p e rt a i n t o d i f f e re n t v e n u e s o r
j u r i s d i c t i o n s , the j o i n d e r ma y b e al l o w e d i n the
Regi on a l Trial Cou rt p rovi d e d on e of the c au se s of
act i o n falls wi t h i n the j u r i s d i c t i o n o f sai d Cou rt
and the ven u e lies t h e rei n ; and - 1
(d) W h e r e the c l a i m s i n al l the c a u s e s o f
act i o n are p ri n ci p a l l y for re co ve r y o f mon e y the
a g g r e g a t e ^ a m o u n t c l a i m e d sh a l l b e the t es t o f
j u ri sd i ct i on . (5a)

NOTES

1. The joinder of causes of action in one complaint


promotes the policy on avoiding multiplicity of suits.
The rule in Sec. 5, however, is purely permissive and the

78
RUL E 2 CAUS E O F AC T I O N SE C . 5

plaint iff can always file separ at e actions for each cause
of action (Baldovir vs. Sarte, 36 Phil. 550).

2. Par. (a) of t his section requires t hat the joinder


of causes of action shall comply with the rule on joinder
of par t ies. T hus, in relat io n to Sec. 6 of Rule 3, it is
necessar y t hat t he right of relief from said causes of
action should arise out of the same t ransact ion or series
of t ransact io ns, and a quest ion of law and fact common
to all the plaint iffs or defendant s may arise in the action.

3. Under Par. (b), only causes of action in ordinar y


civil act ions may be joined, obviously because they are
subject to the same rules. Necessar ily, t herefore, special
civil act ions or actions governed by special rules should
not be joined wit h or dinar y civil act ions to avoid con•
fusion in the conduct of the proceedings as well as in the
det er minat io n of the presence of the requisit e element s
of each part icular cause of act ion. In fact, in the special civil
action of declar at ory relief (Rule 63), the concept of a
cause of action in ordinar y civil actions does not apply.
Note should be t aken, however, of Sec. 4 of Rule 1
which provides t hat t hese Rules shall not apply, inter alia,
to election cases in t he regu lar courts (see Sec. 2[2], Art.
IXC, 1987 Constitution). Thus, unless the rules of t he
elect oral t r ibu na l or body provide ot herwise, the
prohibit ion against joining in one action t herein a cause
of action for quo war r ant o by reason of the ineligibilit y
of t he de fe nd a n t c a nd id a t e (which is a special civil
action) and one for an elect ion prot est due to electoral
irregular it ies, should not apply and both causes of action
may be adjudicat ed in a single case, especially in view of
the need for speedy det er minat io n of the title to a public
office.

4. Pars, (c) and (d) det ermine which court will have
jur isdict io n over the act ion wherein several causes of
action have been joined. Unlike the former Rule, the

79
RUL E 2 REMEDIA L LA W C O M P E N D I U M SEC . 5

aggregate or totalit y rule applies only where t he claims


are principally for sums of money, and not where they
are also of the same nat ure and character; and said claims
for money must arise out of the same t r ans a ct io n or
ser ies of t r ansact io ns wherein a quest ion of law or fact
common to the part ies may ar ise in the action. Also, the
condition in the former Rule t hat permissive joinder of
causes of action shall be "(s)ubject to the rules regarding
jur isdict ion (and) venue" has been modified and clarified
in the present formulat ion of par. (c).

5. . In a co mp la i n t filed in the S e c u r i t i e s
an d Exchange Commission by a stockholder of a
corporation, one of the causes of action t herein sought the
annu l me nt of a dacion en pago agreement , whereby said
corporat ion ceded all its asset s to the mortgagee bank in
set t lement of its account, and to recover said propert y from
the third- par t y p u r c ha s e r t o who m the mo r t g a g e e
ban k ha d subsequent ly sold the propert y and who was
impleaded as a co-defendant. It was held t hat such
cause of action could not be joined in said complaint
since jur isdict io n t hereover lies in t he regular court s.
While, ordinar ily, the pur chaser corporat ion should be
included as a part y defendant since it has an int erest in
the subject mat t er, i n t hi s case said p u r c h a s e r ha s
no i nt r a - c o r p o r a t e relat ionship wit h the complainant ,
hence, the Commission has no jur isdict io n over it under
P.D. 902-A. The rule on permissive joinder of causes of
action is subject to the rules regarding jur isdict ion,
venue and joinder of part ies (Union Glass & Container
Corp., et al. vs. SEC, et al.,
G.R. No. 64013, Nov. 28, 1983), as clarified in t his revised
Rule.

6. This section presupposes t hat the different causes


of act ion which are joined accrue in favor of the same
plaintiff/s and against the same defendant/ s and t hat no
misjoinder of part ies is involved. The jur isdict ional issue,
i.e., whet her the action shall be filed in the inferior court

80
RUL E 2 CAUS E O F AC T I O N SE C . 5

or in the Regional Trial Court, is det ermined by paragraphs


(c) and (d).
7. . Formerly, the rule was t hat alt hough the
causes of act io n ar e for sum s of mo ney owing to
differ ent persons who are me mber s of a labor union, but
the same are joined in a single complaint filed by said
union as a r e pr e s e nt at iv e par t y p u r s u a nt to Sec. 3 of Rule
3, jurisdict ion shall be det er mined by the aggregate amount
of the demands (Liberty Mfg. Workers Union vs. CFI of
Bulacan, et al., L-35252, Nov. 29, 1972). Cases of t his
nat ure are now governed by the Labor Code.

8. Before the imp le me nt at io n of B.P. Blg. 129, it


was held t hat where the plaint iff is uncert ain as against
whom to proceed for recovery on the loss of goods shipped
to him and sues on a joinder of causes of action against
the shipper or ar r ast r e operator as alt ernat ive defendant s,
the former on an admiralt y action and the lat t er on an
ordinary claim for a sum of money, the joinder of causes
of act io n i s pro pe r since t he y aro se from the sam e
t r a n s a c t i o n . H o w e ve r , sinc e one caus e o f act io n
(admiralt y) was wit hin the jurisdict ion of the Court of First
Inst ance, even if the amount involved in the claim for a
sum of money was wit hin the jur isdict ion of the inferior
court, the act ion must be filed and tried in the Court of
F ir s t I ns t a n c e , p u r s u a n t to Rule 2 , Sec. 5 , second
par agr ap h (Insurance Company of North America vs.
Warner, Barnes & Co., Ltd., et al., L-24108, Oct. 31, 1967;
Insurance Company of North America vs. U.S. Lines Co., L-
21839, April 30, 1968). The subsequent dismissal of
the a d m i r a lt y cas e a g a i n s t one o f the a l t e r n a t i v e
defendant s did not oust said court of jur isdict ion over the
damage suit even i f t he claim was less t ha n the t he n
jur isd ict io na l a mo u n t (Insurance Company of North
America vs. U.S. Lines Co., supra).
However, since under Sec. 19 of B.P. Blg. 129 the
inferior court s were grant ed jur isdict ion over admiralt y

81
RUL E 2 REMEDIA L LA W C O M P E N D I U M SE C . 6

actions, as well as ordinary civil actions, where t he claim


does not exceed P20,000, the sit uat ions in the foregoing
case s wer e e l i m i n a t e d be ca u s e the j u r i s d i c t i o n a l
amo unt in both causes of act ion being t he same, said
amount is det er minat ive of whet her t hat action should be
filed in the inferior courts or in the Regional Trial Court.
The amend me nt of Sec. 19, B.P. Blg. 129 by Sec. 1
of R.A. 7691 , as earlier indicat ed, does not affect t his
rul e o n a d m i r a l t y an d m a r i t i m e case s sinc e t hat
a m e n d m e n t mer e l y c o ns i s t e d o f i n c r e a s i n g the
jur isdict ional amo unt for said cases, and also for ordinar y
civil act ions for a su m of money, to claims exceeding
PIOO.OOO, or in Met r o Manila , exceed ing P 200. 000 ,
exclusive of int erest, damages of what ever kind, attorney' s
fees, lit igat ion expenses, and costs.

Sec. 6. Misjoinder of causes of action. — Mi sjoind er


of cau se s of act i o n i s no t a grou n d for d i s m i s s a l of
a n a c t i o n . A m i s j o i n e d c a u s e o f a ct i o n may , o n
mot i o n of a party or on the in i t i at i ve of the court,
be severe d and p ro c e e d e d wit h sep arat ely, (n)

NOTES

1. In case of misjo inder of causes of act ion, the cause


of act ion erroneously joined need only be separat ed and
dismissed, wit hout affecting the act ion wit h regard to the
other cause or causes o£ action. Misjoinder of causes of
act ion, like misjo inder of part ies, is not a ground for
dismissal of an act ion. The part y misjoined shall only be
dropped by order of the court sua sponte or on motion,
an d any claim a ga ins t a part y may be sever e d an d
proceeded wit h separat ely (Sec. 11, Rule 3).

2. Unlike the case of non-joinder of part ies which


is specifically provided for and regulat ed by the Rules
(Secs. 9 to 11, Rule 3), t here is no provision on or sanct io n
against non- joinder of separ at e causes of action since a

82
RUL E 2 P AR T I E S T O CI VI L A C T I O N S SE C . 6

plaintiff needs only a single cause of action to maintain


an action (Sec. 1, Rule 2). Joinder of causes of action
which accrued in favor of a party is only a permissive
procedure, hence the party may i n sti t u t e as many
actions as he has causes of action, without prejudice to
the provi sions of Sec. 1 of Rule 31 on joint trial or
consolidation of actions.

83
RULE 3

PARTIES TO CIVIL ACTIONS

S ect i o n 1. Who may be parties; plaintiff and defen•


dant. — On l y n a t u r a l or j u r i d i c a l p e r s o n s , or
en t i t i e s au t h ori zed by law ma y be p art i e s in a civil
a c t i o n . The t e r m " p l a i n t i f f ma y re f e r t o the
c l a i m i n g p art y, the c o u n t e r - c l a i m a n t , the cros s -
clai man t , or the third (fourth, etc.) -party plaintiff.
The t er m " d e fe n d a n t " ma y refe r t o the ori gi n a l
d e f e n d i n g party, the d ef en d an t in a cou n t e rc l ai m ,
the c r o s s - d e f e n d a n t , o r the t h i r d ( f ou rt h , et c. ) -
party d efen d an t , (a)

NOTES

1. As to who are juridical persons wit h capacit y to


sue, see Art. 44, Civil Code. The entities authorized by
law to be parties to a suit include the estate of a deceased
person (Limjoco vs. Intestate Estate of Fragante, 8 Phil.
776; Estate of Mota vs. Concepcion, 56 Phil. 712),
a polit ical par t y inco r po r at ed UNDE R Act 1459
(now,
B.P. Blg. 68, Corporation Code) and a regist ered labor
unio n , U ND E R Sec. 24(d), R.A. 875 (now, Sec.
243,
P.D. 442, Labor Code), wit h respect to its propert y. The
Roman Catholic Church has a juridical p ersonali ty
(Barlin vs. Ramirez, 7 Phil. 47).

2. . Alt hough the action was brought against


the "Broadway T heat re" which is not a jur idical person,
but the lessee thereof filed an answer and lat er ent ered
into a compromise agreement admit t ing liabilit y and
pur suant to which judgme nt was rendered, the
procedural defect was cured. The writ of execut ion
cannot be enforced a g a i n s t the t h e a t r e bu t a g a i n s t
the le sse e (Oscar Ventanilla Enterprises Corp. vs.
Lazaro, G.R. No. 53856, Aug. 21, 1980).
RUL E 3 P AR T I E S T O CIVI L A C T I O N S SE C . 2

3. Sec. 1 of t his Rule provides t hat only nat ur al or


juridical persons may be part ies in a civil action and, in
this case, the educat io nal inst it ut io n failed to comply with
its obligat ion to incorporate under the Corporat ion Law
after its recognit ion by the Gover nment . However, having
contract ed with its t eacher for 32 years under the
r epr esent at io n t hat it was possessed of juridical person•
alit y to do so, it is now est opped from denyi ng such
personalit y to defeat her claim aga inst it (Chiang Kai
Shek School us. CA, et al., G.R. No. 58028, April 18, 1989).

4. Under Sec. 15 of t his Rule, an ent it y, which is not


regist ered as a jur idical person and, t herefore, wit hout
the requisit e personalit y required of part ies to a suit, may
at least be sued as a defendant in the first inst ance so
t hat t he me mber s t her eo f shall be disclosed by being
required to be individually named in t he answer. This
except ion is dict at ed by the need to identify its member s
since it is from t hem t hat the plaint iff may seek relief on his
claim.

5. No n-r esident aliens living abroad may ma int ain


personal act ions against Philippine resident s in Philippine
court s, even if a co unt er cla im is br ought aga inst said
plaint iffs (Dilweg us. Philip, L-19596, Oct. 30, 1964).

Sec. 2. Parties in interest. — A**e* L p a rt y in


i n t eres t i * tk e p art y wh o st and s t o b e b en efi t ed o r
i nj u red b y -t h e j u d g m e n t i n the suit, o r the party
en t i t le d t o th e avai l s o f the suit. Un l es s o t h e rw i s e
au t h o ri ze d by law or t h es e Ru les, every act i o n mus t
be p ro s e c u t e d or d ef en d e d in the nam e of the real
party in i n t erest . (2a)

NOTES

1. A real part y in int erest is the part y who stands to


be benefited or injured by the judgment in the suit, or
the part y ent it led to the avails of the suit (Salonga vs.
r •
c 1
-ir e * * '
< (85
RUL E 3 R E M E D I A L L AW COMPENDIU M SE C . 3

Warner, Barnes & Co., Ltd., 88 Phil. 125). The term


"party" includes a surety who, although not initially a
party to the case, is sought to be held liable on it s
performance bond, hence, as such party, it can appea l
from the order rendered thereon (PHHC vs. Jeremias,
et al., L-43252, Sept. 30, 1976).
2. If the suit is not brought in the name of or against
the real part y in int erest, a motion to dismiss may- be
filed on the ground t hat the complaint st at es no cause of
action (Sec. IfgJ, Rule 16).
3. Where the action was brought by t he attorney- in-
fact of the landowner in his own name, and not in the name
of his pr incipal, the action was proper ly dismissed (Ferrer
vs. Villamor, L-33293, Sept. 30, 1974; Marcelo vs. De Leon,
105 Phil. 1175).

Sec. 3. Representatives as parties. — Wh er e the


acti on is allowe d to be p ros e cu t e d or d e f en d e d by a
r e p r e s e n t a t i v e or s o m e o n e a c t i n g in a fi d u ci a r y
cap aci t y , the b en efi ci ary shall be i nclu d e d in the
title of the cas e and shall be d ee me d to be the real
party in in t erest . A re p re s e n t a t i v e ma y be a t ru st e e
o f a n e xp r e s s t ru st , a g u a rd i a n , a n e x e c u t o r o r
ad mi n i s t rat o r, or a party au t h o ri ze d by law or t h es e
Ru les. A n agen t act i n g i n hi s ow n n am e an d for
the b en efi t o f a n u n d i s c l o s e d p ri n ci p a l ma y su e o r
b e sue d wi t h ou t j oi n i n g the p ri n c i p a l excep t wh e n
the c o n t r a c t i n v o l v e s t h i n g s b e l o n g i n g t o the
p ri n ci pal. (3a)

NOTES

1. The impleading of the beneficiary as a part y in


the suit is now a mandat ory r equir ement , and not a dis•
cret ionary procedure as it was in the former section of
this Rule. This amended section enu me r at es the same
except ions to the rule t hat the act ion shall be brought in

86
RUL E 3 P AR T I E S T O CI VI L A C T I O N S SE C . 3

the name of the real part y in int erest . The phrase "part y
a u t ho r i z e d b y law o r t he s e R u le s, " i nc lu d e s t he
r epr e se nt at ive of t he owner in eject ment proceedings
(Sec. 1, Rule 70), a receiver (Sec. 6, Rule 59) and t he
assig nee of a debt or in inso lvency pr oceedings. The
judgment creditor may sue the debtor of a judgment debtor
if the former denies the indebt edness (Sec. 43, Rule 39).
Other inst ances under the subst ant ive law are found in
Arts. 487, 1311, 1497, 1664, 2103 and 2118 of the Civil
Code.

2. A labor union, as the duly recognized bargaining


unit of its me mber s, can file a r epr esent at ive suit in t heir
behalf under t his section which aut hor izes a part y wit h
whom or in whose name a cont ract has been made for
the benefit of anot her, to sue or be sued wit hout joining
the part y for whose benefit t he act ion is pr esent ed or
defended (Liberty Mfg. Workers Union vs. CFI of Bulacan,
et al., supra; cf. National Brewery, etc. Labor Union of
the Phil. vs. San Miguel Brewery, Inc., L-19017, Dec. 7,
1963). This r e pr es e nt at ive capacit y of labor unions is
recognized under the Labor Code (Sec. 243) but, generally,
labor cases are not originally cognizable by the regular
courts.

3. . A*corporation cannot mai n t ai n an action


to recover property belonging to its stockholders as it
has no interest therein, it having a separate personality
and the properties not having been transferred to it
(Sulo ng Bayan, Inc. vs. Gregorio Araneta, Inc., et al., L-
31061, Aug. 17, 1976).
4. . Under the pr esent Rules, part ies in int erest
may be classified and defined as follows:
a. Indispensable parties: Those wit hout whom no
final det er minat io n can be had of an act ion (Sec. 7).
b. Necessary parties: Those who are not indispen•
sable but ought to be parties if complete relief is to be

87
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 3

accorded as to those already part ies, or for a complete


det er minat io n or sett lement of the claim subject of the
action (Sec. 8).
c. Representative parties: Those referred to in Sec.
3 of t his Rule.
d. Pro forma parties: Those who are required to be
joined as co-parties in suits by or against anot her part y
as may be provided by the applicable subst ant ive law
or procedural rule (Sec. 4).
e. Quasi parties: Those in whose behalf a class or
r epr esent at ive suit is brought (Sec. 17).
5. The 1940 Rules of Court provided for the t erm
"necessar y p ar t ie s" but t his was c hang ed to "proper"
part ies in t he 1964 Rules of Court. The pr esent Rules
r ever t ed to the original no me nc lat ur e as being more
terminologically accurat e.
In Amer ican law on the classificat ion of part ies, from
which we der ived and p a t t e r ne d our co ncept s wit h
appropr iat e modifications, formal or proper part ies are
those who have no int erest in the cont roversy bet ween
the immediat e lit igant s but have an int er est in the sub•
ject - mat t er which may be co nvenie nt ly set t led in the
suit, and t hereby prevent furt her lit igat ion; t hey may be
made part ies or not, at t he option of the co mp la inant .
Necessary par t ies are those par t ies who have such an
int er es t in t he su bje ct - mat t e r of a suit in equit y, or
whose right s are so involved in the controversy, t hat no
complete and effective decree can be made, disposing of
the mat t er in issue and dispensing complete just ice, un•
less t hey are before the court in such a ma nner as to
ent it le t hem to be heard in vindicat ion or prot ect ion of
t heir int er e st s (see Black's Law Dictionary, 4th ed.,
pp. 1275-1276; citat ions omitted).
The classificat ion t her e in also speaks of no mina l
part ies as those who are joined as plaintiffs or defendant s,

88
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 4

not because they have any real int er est in the subject
mat t e r or because any relief is dema nd e d as aga inst
them, but merely because the technical rules of pleadings
require t heir presence on the record. This would roughly
co rr espo nd to our co ncept of and rule on pro forma
part ies wherein the jo inder of spouses is required, or in
cert io rar i act io ns w her e i n the court or agency whose
adjudicat ion is challenged is imp leaded as t he public
r espo nde nt , wit h the pr eva i ling part y as t he pr ivat e
respondent .

6. In the pr esent definit ion of a necessar y part y, the


addit io n of the a lt e r na t iv e clause "or for a complet e
det er minat io n or set t lement of the claim subject of the
action" is int ended to make the definit ion of necessary
part ies more comprehensive and complet e. Thus, if the
plaint iff creditor sues only one of the two joint debtors,
the judg me n t t her e i n would accord complet e relief as
between him and said defendant . However, the co-debtor
who was not impleaded is definit ely a necessar y part y
since a judgme nt in t hat act ion wit h respect to his own
joint liabilit y is necessar y for a complete set t leme nt of
the debt in favor of the plaintiff. Wit hout such alt er na•
t ive c la u s e , the u n i m p l e a d e d debt o r wo uld not b e
considered as a necessar y part y and t he procedure and
sanct ions in Sec. 9 of t his Rule could not be applied to
him.

7. . P a r t ie s who wer e not init ia l l y and


for mally impleaded as original part ies to the case, but
lat er bound t hemselves to comply wit h the t er ms of a
judg ment on compromise rendered t herein may also be
considered as quasi part ies in said case (Rodriguez, et
al. vs. Alikpala, L-38314, June 25, 1974).

Sec. 4. Spouses as parties. — H u sb an d an d wife


shall su e o* be su e d j oi n t ly, excep t as p rovi d e d by
law. (4a)

89
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 5

NOTE

1. The provision hereon in the 1964 Rules of Court


was merely a reproduct ion of Art. 113 of the Civil Code.
This is an illust r at io n of joinder of pro forma part ie s
required by the Rules. The propriet y of suits by or against
the spouses should now t ake into account the pert inent
provisions of the Family Code.

Sec. 5. Minors or incompetent persons. — A mi n o r


or a p erso n allege d to be i n c o m p et e n t , ma y su e or
b e sue d wit h the ass i st an c e o f hi s f ath er, mot h er ,
gu ard i an , or if he ha s n on e , a gu ard i a n ad litem.
(5a) r

NOTES
. r -
T
- -•
1. Under the 1964 Rules, a dist inct ion was made
bet ween une ma nc ipat ed and e ma nc ip at ed mino r s. An
unema nc ipat ed minor could sue or to be sued "t hrough"
his p ar e n t or guar dia n, t hat is, t he actio n had to be
br o u g h t i n the na m e o f o r a g a i n s t suc h p a r e n t o r
gua r d ia n wit h the des ig nat io n t hat h e wa s br ing in g
the action or being sued in t hat capacit y. In the case of
emancipat ed minors, they could sue or be sued "wit h the
assist ance" of t he par ent or guardian. The action was in
the name of or against the minor, wit h an indicat ion t hat
he was being assist ed t her ein by his parent or guardian.
Note t hat 18 years is now the age of majorit y (R.A. 6809)
and for cont ract ing marr iage (Art. 5, Family Code).

2. Also, under the former Rules, it was necessary


t hat to sue or be sued in t he cases provided by law, the
inco mpet ent must have been judicially declared as such,
and he could t hus sue or be sued only t hrough his parent
or guardian. Under the pr esent revision, the suit can be
brought by or against him personally but wit h the assis•
tance of his par ent s or his guardian. It is sufficient t hat

90
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 6

his i n c o m p e t e n c y be alleg e d i n the c o r r e s p o n d i n g


pleadings and the t r ial court may pass upon the t rut h and
effects thereof.

Sec . 6. Permissive joinder of parties.—All p erson s


i n wh o m o r a g a i n s t w h o m an y ri gh t t o re li e f i n
re sp ec t t o o r a ri s i n g ou t o f the sam e t ra n s a c t i o n
or se ri e s of t ra n s a c t i o n s i s all ege d to exi st wh et h e r
jointly, severally, or in the alternative, may, except as
ot h e rw i s e p rovi d e d in t h es e Ru les, join as p lainti ffs
or be j oi n e d as d e f e n d a n t s in on e comp lai n t , wh er e
any q u e s t i o n o f la w o r fact c o m m o n t o all su c h
plainti ffs or to all suc h d e f e n d a n t s ma y ari se in the
action; but the Cou rt ma y mak e suc h ord e r s a s may
be ju s t to p rev en t an y p lai nti ff or d ef e n d a n t from
be in g e m b a r ra s s e d or put to exp en se in conn ecti on
wit h an y p ro c e e d i n g s i n w h i c h h e ma y h av e n o
i nt erest. (6)

NO TES

1. In the case of indispensable part ies and necessary


part ies, t heir jo inder in the act ion is compulsory (Secs. 7
and 8). This sect ion enunciat es the rule on permissive
joinder of part ies, t hat is, t hey can eit her he joined in
one single complaint or may t hemselves maint ain or be
sued in s epar at e suit s. This rule is also applicable to
count erclaims (Go, et al. vs. Go, et al., 95 Phil. 378).

2. Permissive joinder of part ies requires t hat:


a. The right to relief arises out of the same t rans•
action or series of t ransact io ns;
b. There is a quest ion of law or fact common to all
the plaint iffs or defendant s; and
c. Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdict ion and venue.

91
RUL E 3 R E M E D I A L L AW COMPENDIU M SEC . 7

"Series of transactions" means separate dealings with


the parties but all of which dealings are directly connected
with the same type of subject-matter of the suit. The
third requ ir ement is cont emplat ed by the proviso "except
as otherwise provided in these Rules" st at ed in this section.
Formerly, it was held t hat several employees, hired
under separat e contract s, could join in a suit for minimum
wages and non-pa yment thereof against t heir emplo yer,
their contracts being a "series of t ransact io ns" and t here
is a common quest ion of fact and law applicable to all of
t hem (Abrasaldo, et al. vs. Cia. Maritima, 104 Phil. 1051
fUnrep.J). The same rule applied where several employees
were joint ly dismissed and not paid by t heir employer
(International Colleges, Inc. vs. Argonza, 90 Phil. 470).
The foregoing sit uat ions are now governed by the Labor
Code, but the doctrines in said cases are still applicable to
ordinar y claims not involving labor cases or emplo yer-
emplo yee r e lat io ns h ip s as long as t he r equ is it e s for
permissive joinder of part ies are present .

3. Where a complaint contained two causes of action,


each for a sum of money less t ha n P20,000 (which was
t he n the ma x i mu m of the jur is d ict io na l a mo u n t for cases
cognizable by the municipal trial courts) owed by the
plaint iff to a different defendant and ar is ing from different
and independent transactions, alt ho ug h t he total of both
claims exceeded P20,000, the Regional Trial Court had no
jur isd ict io n t he n since the t ot alit y rule involving different
part ies, in Sec. 33(1) of B.P. Blg. 129 and Sec. 11 of the
I nt e r i m Rules, is subject to the r equir e me nt s in t his
sect ion, one of which is t hat the r ight to relief arises out
of the same t ransact ion or series of t r a n s a c t io n s
(Flores vs. Mallare-Philipps, et al., G.R. No. 66620, Sept.
24, 1986).

S ec. 7.
y
Compulsory joinder of indispensable parties.
— P a r t i e s i n i n t e r e s t w i t h o u t w h o m n o fi n a l

92
RUL E 3 P AR T I E S T O CIVI L AC T I O N S S E C S . 7- 8

d et ermi n at i on can be had of an action shall be j oi ned


either as p lain ti ffs or d efe n d a n t s . (7)

Sec. 8. Necessary party. — A n e c e s s a r y party is


one wh o i s not i n d i s p e n s a b l e but wh o ou gh t to be
joined as a p arty i f comp l et e relief i s to be accord e d
a s t o t h o s e a l r e a d y p a r t i e s , o r for a c o m p l e t e
d et e rm i n at i o n or s e t t l e m e n t of the clai m su b j ect of
the act i on . (8a)

NO TES

1. In the case of indispensable part ies, the action


cannot pro cee d unle s s t he y ar e jo ined (Borlasa vs.
Polistico, 47 Phil. 345; Cortez vs. Avila, 101 Phil. 705),
whereas the act ion can proceed even in the absence of
some necessar y part ies. If an indispensable part y is not
impleaded, any judg me nt would have no effect iveness;
wher eas, even if a necessar y part y is not included in
the suit, the case may be finally det er mined in court, but
the j u d g m e n t t h e r e i n will not r esolv e the who le
controversy.

2. . I nd is p e ns a b l e part ie s are t hose wit h such


an int er est in the co nt ro ver sy t hat a final decree
would necessarily affect t heir right s, so t hat the court
cannot proceed wit hout t heir presence. Necessary
part ies are those whose presence is necessary to
adjudicate the whole controversy but whose int erest s are
so far separable t hat a final decree can be mad e in
t heir absence wit ho ut affecting them (Wyoga Gas &
Oil Corp. vs. Schrack,
1 Fed. Rules Service, 292, cited in 1 Moran 191, 1979 Ed.).

3. Where, in an action to annul the sale of land made


by the defendant bank to its co-defendant spouses, the
act ion was d is missed wit h r espect to said defendant
spouses, the case must also be dismissed as against the
defendant bank. The defendant spouses are indispensable

93
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 9

part ies, hence having been discharged by the t rial court,


said court is no longer in a posit ion to grant the relief
sought by the plaint iff (Pillado us. Francisco, 105 Phil.
1254 fUnrep.J). On the other hand, where the act ion was
dismissed against the defendant s who, before the filing
of said action, had sold t heir int erest s in the land subject
of the suit to t hei r co - defendant , t he said d is m is sa l
against the former, who are only necessary part ies to the
suit, will not bar the act ion from proceeding against the
lat t e r as t he r e ma i n i n g de fe nda nt . Said r e ma i n i n g
defendant having been vest ed wit h absolut e tit le over
the subject propert y, the t rial court is in a position to
grant the relief sought if proved by the plaint iffs (Seno,
et al. us. Mangubat, et al., L-44339, Dec. 2, 1987).

Sec. 9. Non-joinder of necessary parties to be pleaded.


— W h e n ev e r in an y p l ead i n g in wh ic h a clai m is
asse rt ed a n ec es s a r y party i s not j oi n ed , the p lead e r
shall set forth his name , i f kn own , and shall state
wh y he i s omi t t ed. S h ou l d the Cou rt find the reaso n
for the o m i s s i o n u n m e ri t o ri o u s , i t ma y ord er the
i n c l u s i o n o f the o m i t t e d n e c e s s a r y p a rt y i f
j u ri sd i ct i on ove r hi s p erso n ma y be ob t ai n e d .
The fai lu re t o co mp l y wi t h the ord e r for hi s
i n clu si on , wi t h ou t ju st i fi ab le cau se , shall be d eeme d
a wai ve r of the clai m agai n s t suc h party.
The n on - i n c l u si o n of a n e c e s s a r y p arty doe s not
p re ve n t the Cou rt from p r o c e e d i n g i n the act i on , and
the j u d gme n t ren d e re d t h e re i n shall be wit h • ou t
p rej u d i ce to the right s of suc h n e c e s s a r y party. (8a,
9a)

NOTES

1. This revised provision r e it er at e s t he need for


impleading all necessar y part ies in order t hat the claims
involved in t he act ion may be complet ely det er mined

94
RUL E 3 P AR T I E S TO CI VI L AC T I O N S SE C . 9

t herein and t her eby avoid mult iplicit y of suit s. The non-
inclusion of the necessar y part y may be excused only on
mer itorious grounds, absent which the court shall order
him to be impleaded if jur isdict io n over his person can
be obtained, subject to the sanct ion in the second para•
graph of t his section. If his inclusion cannot, however,
be effected for valid reasons, under the third par agr ap h
of t his section the act ion may proceed but the judgment
t herein shall not prejudice the r ight s of t hat necessar y
part y. Logically considered, t herefore, neit her shall his
rights be prejudiced if his non- inclusion in the act ion in
the first place was due to a valid cause.

2. Under the circumst ances cont emplat ed in the first


par agr ap h , t he court shall order the inclusio n of the
necessary part y, t hat is, the plaint iff shall be ordered to
file an a me nded co mp la int imp le ad ing t he necessar y
part y t her ein as a co-defendant. Where the plaint iff un-
just ifiedly fails or refuses to do so, the sanct ion in the
second par agr ap h comes into play and the plaint iff shall
be deemed to have waived his claim against said part y.
The same rule applies to any pleading assert ing a claim
against a necessary part y.
3. It is t rue t hat under Sec. 3 of Rule 17, where the
plaint iff fails wit hout just ifiable cause to comply with an
order of the court , his co mp la int may be dis missed.
However, such dismissal shall not be ordered where the
plaintiff fails to comply wit h the order of the court for
the joinder of the necessary part y under this Rule, in line
with Sec. 11 thereof which provides t hat non- joinder of
part ies should not be a ground for dismissal of an act ion.
Thus, t he rule merely declaring the waiver of plaint iffs
claim against the necessar y part y whose non-inclusion
was unjustified, as provided in the second par agr aph of
this section, is in effect an except ion to the provision on
penalt ies imposed on a disobedient party under Sec. 3
of Rule 17 which would have ent ailed the dismissal of the
complaint itself.

95
RUL E 3 REMEDIA L LA W C O M P E N D I U M S E C S . 1 0 -1 1

Sec. 10. Unwilling co-plaintiff. — If the con se n t


of an y party wh o shou l d be join e d as p lain ti ff can
not be ob t ain ed , he ma y be mad e a d e f e n d a n t and
the reaso n t h erefo r shall be st at ed in the comp lai n t .
(10)

Sec. 11. Misjoinder and non-joinder of parties. —


Nei t h e r m i s j o i n d e r nor n on - j oi n d e r o f p a rt i e e i s
grou n d for d i s mi s s a l of an act i on . Part i e s ma y be
d rop pe d or ad de d by order of the cou rt on mot i o n of
an y party or on its ow n i n i t i at i ve at an y stag e of
the act i o n and on suc h t erm s as are just. Any clai m
a g a i n s t a m i s j o i n e d p art y ma y b e s e v e r e d an d
p ro c e e d e d wit h sep arat ely. (11a)

NOTES

1. Object ions to defects in the part ies impleaded


should be made at the ear liest opport unit y, t he mo ment
such defects become appar ent , by a mot ion to st rike the
names of the part ies impleaded. If t here is misjoinder, a
se p ar at e act io n should be br o ugh t agains t t he part y
misjoined. Objection to misjoinder cannot be raised for
the first time on appeal (Garcia vs. Chua, [CA], 50 O.G.
No. 2, 653).

2. Non-joinder does not warrant dismissal but the


court should order the inclusion of the necessary part y
(see Sanchez vs. CFI, 40 Phil. 155). But if the case is
erroneously dismissed on this ground without stating that
it is without prejudice, and plaintiff did not appeal, such
dismissal bars the filing of another action on the same
cause (Rivera vs. Luciano, L-20844, Aug. 14, 1965).
3. Alt hough both misjoinder of par t ies and causes
of act ion are not grounds for dismissal, t hey st and on
different premises as t here can be misjoinder of part ies
even if t here is only one cause of action common to them,

96
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 12

and t here can be misjoinder of causes of action even if


there is only one plaintiff.

4. In case of misjoinder of causes of action, the one


which has been misjoined need merely be severed and
proceeded wit h separ at ely, as provided in Sec. 6, Rule 2.
Along t he same rat io nale, Sec. 2 of Rule 31 allows the
court, in furt herance of convenience or to avoid prejudice,
to order a severance and separ at e trial of any claim, cross-
claim, count erclaim, or t hird-part y complaint, or of any
separ at e issue or of any nu mbe r of claims, cross- claims,
count erclaims, t hird -part y complaint s or issues.

5. See Note 2 under Sec. 2, Rule 17.

Sec. 12. Class suit. — Whe n the sub ject matt er


o f the c o n t ro v e r s y i s on e o f c o m m o n o r g e n e ra l
i n t eres t t o man y p e r s o n s s o n u m e r o u s that i t i s
i m p ract i c ab l e to joi n all as p art i es , a n u mb e r of
t h e m w h i c h the C o u rt fi n d s t o b e s u f f i c i e n t l y
n u me rou s and re p re s e n t a t i v e as to fully p rot ect the
i n t e re st s of all c o n c e rn e d ma y su e or d efen d for
the b en efit of all. Any part y in i n t ere s t shall hav e
the ri gh t t o i n t e rv e n e t o p ro t e c t hi s i n d i v i d u a l
i nt erest. (12a)

NOT E S

1. The requisit es of a class suit (or r epr esent at ive


suit) are:
--a. The subject - mat t er of the controversy is one of
common or general int erest to many persons;
--b. The part ies affected are so numerous t hat it is
impract icable to bring t hem all before the court; and
y c. The part ies bringing the class suit are sufficiently
numerous or r epr esent at ive of the class and can fully
protect the int erest s of all concerned.

97
RUL E 3 R E M E D I A L L AW C O M P E N D I U M SE C . 12

2. . The complaint must specially st at e t hat the same


is being br o ugh t in behalf of ot her s wit h who m
the part ies share a common int erest (Borlasa vs.
Polistico,
47 Phil. 345; Claudio vs. Zandueta, 64 Phil. 819). If
t here is a conflict of int erest between those sought to be
r epr esent ed and t hose who filed t he act ion, the class
suit will not prosper (Ibahez vs. Roman Catholic Church,
12 Phil. 227). The part y br inging the class suit must
have the legal capacit y to do so (Chinese Flour Importers
Association vs. Price Stabilization Board, 9 Phil. 461; Anti-
Chinese League vs. Felix, 77 Phil. 1012; Recreation &
Amusement Association vs. City of Manila, 100 Phil. 950).
However, wrongs suffered by some st ockho lders do not
nec es sar il y co nst it ut e the sam e wro ngs to ot he r
st ockho lder s as would cr eat e t hat commo n or gener al
int erest in t he subject - mat t er (Mathay, et al. vs. Con•
solidated Bank & Trust Co., et al., L-23136, Aug. 26,
1974). See also Newsweek, Inc. vs. IAC, et al. (G.R. No.
63559, May 30, 1986) regarding a supposed class suit for
libel against sugar plant er s in Negros which was denied
since each plaint iff has a separ at e and dist inct reput at io n
in the communit y.

3. Formerly, when the courts had jurisdict ion in labor


cases, it was held t hat a class suit to recover wages due to
23 la bor er s is not proper as t he part ie s sought to be
r e p r e s e n t e d ar e no t s o n u m e r o u s a s t o mak e i t
impract icable to include t hem individually in the com•
plaint (Diaz vs. De la Rama, 73 Phil. 104). The principle
would apply to ot her similar s it uat io ns not involving
labor relat ions.

4. One plaint iff was held qualified to bring a class


suit in behalf of the member s of the Methodist Episcopal
r elig io us associat io n, i t a p p e ar i n g t hat he had been
chosen by said associat ion to look after t heir int er est s
(De la Cruz vs. Seminary of Manila, 18 Phil. 334).

98
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 12

5. . The p ar t ie s who br o u g h t the class suit


have control over the case wit h the right to compromise or
even discont inue the same. But a class suit cannot be
com• promised or dismissed wit hout the approval of the
court (Sec. 2, Rule 17). A member of the class is bound
by t he judgment in t he class suit, hence t his section
gives him the r ight to int er vene if he desir es to
prot ect his own individual int er est s. In the int erest of
just ice, the absent members should be notified of the
filing of the class suit whenever pract icable.

6. As amended, t his section now regulat es not only


the right and r equir ement s for a group to sue but also
to defend in a class suit.

7. A t axpa yer ' s suit (see Gonzales vs. Hechanova, L-


21897, Oct. 22, 1963; Phil. Constitution Association, Inc.
vs. Gimenez, L-23326, Dec. 18, 1965) or a stockholder's
derivat ive suit are in t he nat ur e of a class suit, alt hough
subject to the o t he r r eq u is it e s of the co rr espo nd ing
governing law (cf. Financing Corp. of the Phil. vs. Teodoro,
93 Phil. 679), especially on the issue of locus standi.
8. Claimant s of different portions embraced in a big
tract of land cannot be impleaded altogether in a class
suit by or a g a i ns t t he m as eac h one of t he m ha s a
par t ic u la r int er e s t i n his own po rt io n, sep ar at e and
different from the ot hers (see Rallonza vs. Villanueva,
15 Phil. 531; Berses vs. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., supra).
However, if t he r igh t to relief arose out of the same
t r a ns a c t io n or ser ie s of t r a ns a c t io n s and t her e is a
common quest ion of law or fact, they may be joined in
one suit as plaint iffs or defendant s in accordance with
Sec. 6 of this Rule on permissive joinder of part ies.

9. An act ion does not become a class suit merely


bec ause i t i s d e s i g n a t e d as such in the p le a d i ng s .
Whet her the suit is or is not a class suit depends upon

99
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 13

the att ending facts, and the complaint or other pleading


init iat ing the class action should allege the exist ence of a
subject-matter of common interest, as well as the existence
of a class and the number of persons in the alleged class,
in order t hat the court may be able to deter mine whet her
the me mber s of the class are so numerous as to make it
impracticable to bring t hem all before the court, to contrast
the number appear ing on the record with the number in
the class, to ascert ain whet her the cla imant s on record
adequat ely r epr ese nt the class, and to verify t hat the
subject - mat t er is of general or common int erest (Mathay,
et al. vs. Consolidated Bank & Trust Co., et al., supra; cf.
Ortigas & Co. vs. Ruiz, et al., L-33952, Mar. 9, 1987).

10. Under the former Rule, when a supposed class


suit was filed, it was the dut y of the court to make sure
t hat t he par t ie s act ua ll y before i t were suffic ie nt ly
nu mer o us and r epr ese nt at ive of the class. UNDE R the
pr esent formulat ion, such fact is one of the requisit es for
inst it ut ing and maint aining a class suit. The significance
of such change is t hat the part ies br inging the suit have
the burden of proving the sufficiency of the r epr esent at ive
charact er which they claim. Corollarily, the defendant
can assail t hat fact t hrough a motion to dismiss on the
gr o u n d t hat the p la int if fs hav e n o capac it y t o sue
(Sec. lfdj, Rule 16), t hat is, t hat they do not have the
r epr esent at io n t hat they claim (see Lunsod vs. Ortega,
46 Phil 664).

Sec . 13. Alternative defendants. — Wh e r e the


p lain ti ff i s u n c e rt ai n agai n s t wh o of s eve ral p e rson s
he i s ent i t le d to relief, he ma y join any or all of t h e m
as d e f e n d a n t s in the alt ern at i ve, alt h ou g h a ri ght
to re li e f a g a i n s t on e ma y be i n c o n s i s t e n t wi t h a
ri ght of relief agai n s t the other. (13a)

100
RUL E 3 P AR T I E S TO CI VI L AC T I O N S S E C S . 1 4 -1 5

NOTE

1. Thus, where the owner of the goods is not sure


whet her the same was lost in t r ansit or while it was on
deposit in the warehouse of the ar r ast r e operat or, he
may sue the shipper or the operator in the a lt er nat ive,
alt hough the r ight against the former is on admir a lt y
while that a g a i n s t the o per at o r i s on co nt r ac t (see
Insurance Company of North America vs. United States
Lines Co., L-21839, April 30, 1968).

Sec. 14. Unknown identity or name of defendant. —


Wh en eve r the i d en t i t y or nam e of a d e f e n d a n t i s
u n kn o wn , h e ma y b e sue d a s the u n k n o w n own er ,
heir, d e vi s ee , or by su c h ot he r d e si g n at i o n as the
case ma y req u i re; wh e n hi s i d en t it y o r true nam e
i s d i s c o v e r e d , the p l e a d i n g m u s t b e a m e n d e d
acco rd i n gly. (14)

NO TES

1. A relat ed provision in Rule 14 reads as follows:


"Sec. 14. Service upon defendant whose identity
or whereabouts are unknown. — In any act io n,
whenever the defendant is designat ed as an unknown
owner, or the like or whenever his wher eabout s are
u nk no w n an d ca nno t be asc er t a ine d by diligent
inquir y, service may, by leave of court, be effected
upon him by publicat ion in a newspaper of general
circulat ion and in such places and for such time as
the court may order."
2. This presupposes t hat the plaint iff really does not
know the ident it y and/or address of the defendant or is
not in a position to ascert ain such identit y or whereabout s.

Sec . 15. Entity without juridical personality as


defendant. — W h e n tw o o r mo r e p e r s o n s no t

101
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 15

o rg an i ze d a s a n en t i t y wit h ju ri d i cal p e rs on a l i t y
ent er into a t ran sact i on , they ma y be sue d UNDER
the nam e by wh i c h the y are gen era l ly or com m on l y
kn ow n .
I n the a n s w e r o f su c h d e f e n d a n t , the n ame s an
d a d d r e s s e s o f the p e r s o n s c o m p o s i n g sai d ent it y
mus t all be revea led . (15a)

NOT E S

1. Rule 14 pert inent ly provides as follows:


"Sec. 8. Service upon entity without juridical
personality. — When persons associat ed in an ent it y
wit hout juridical personalit y are sued under the name
by which t hey are generally or commonly known,
service may be effected upon all the defendant s by
serving upon any one of t hem, or upon the person in
charge of the office or place of business ma int ained
i n such na me . Bu t suc h ser vice sha l l not bind
individually any person whose connect ion wit h the
ent it y has, upon due notice, been severed before the
action was brought."

2. Wit h respect to judgment s to be r endered in t his


sit uat ion, Sec. 6 of Rule 36 provides t hat when judg me nt is
rendered against two or more persons associat ed in an
ent it y wit hout juridical personalit y, the judg ment shall
set out t heir individual or proper names, if known.

3. The predecessor of t his section referred only to


suit s aga i ns t two or more per so n s asso c iat ed in any
business and who t r ansact such business under a com•
mon name. Accordingly, i t was understood t hat the suit
co nt e mp lat e d t her e i n could be br o ug h t only a ga ins t
associat ions which do not have an independent jur idical
personalit y but are engaged in business, t hu s excluding
non-profit or char it able associat io ns. That dist inct io n
has been eliminat ed in t his revision since non-profit or

102
RUL E 3 P AR T I E S TO CI VI L AC T I O N S SE C . 16

charitable associations can also commit and be liable for


actionable wrongs.

Sec . 16. Death of party; duty of counsel. — Wh en •


ever a part y to a p e n d i n g act i o n di es, and the clai m i
s not t h e re b y e xt i n g u i s h e d , i t shall be the dut y of his
cou n s e l to in form the cou rt wi th i n thirt y (30) days
after suc h d eat h of the fact thereof, and to give the
nam e an d ad d re s s of his legal rep re s en t at i v e or
re p re s e n t a t i v e s . Fai lu re of cou n se l to comp l y wit h
this dut y sh all be a grou n d for d i sci p li n a ry acti on.
The h ei r s of the d ecea s e d ma y be all owe d to be
su b st i t u t e d for the d e c e a s e d , wi t h ou t req u i ri n g the
a p p o i n t m e n t of an exe cu t o r or ad mi n i st rat o r and
the Cou rt ma y ap p o i n t a gu ard i a n ad litem for the
minor h ei rs.
The C o u rt sh a l l f o r t h w i t h ord e r sai d lega l
r e p r e s e n t a t i v e o r r e p r e s e n t a t i v e s t o ap p ea r and
be su b st i t u t e d wi t h i n a p eri od of thirty (30) days
from n ot i ce.
I f n o le ga l r e p r e s e n t a t i v e i s n a m e d b y the
c o u n s e l for the d e c e a s e d part y, o r i f the on e s o n ame
d sh al l fail t o ap p e a r w i t h i n the s p e c i f i e d p eri od , the
Cou rt ma y ord e r the o p p o s i n g party, wi thi n a
sp eci fi ed t i me, to p rocu re the ap p oi n t m en t of an
e xecu t o r or ad m i n i st rat o r for the estate of the
d ec ea s ed , an d the latter shall i m m ed i a t e l y app ear for
and on b eh alf of the d eceased . The court ch a rge s in
p ro cu ri n g suc h ap p o i n t m en t , i f defrayed by the
op p osi n g party, ma y be recove red as costs. (16a, 17a)

NOTES

1. This section is a consolidation of Secs. 16 and 17


of the former Rule, with the following amendments:

103
RUL E 3 R E M E D I A L L AW COMPENDIU M SE C . 16

a. The dut ies of the counsel, as specified under the


first paragraph, are now limited to the matt er of the deat h
of his client and not in case of the lat ter' s incapacit y or
incompetency. The reason for the change is t hat the deat h
of the client will require his subst it ut io n by his legal
r epr esent at ive to be ordered by t he court wherein t he
case is pending, or even the appo int ment of an executor
or admin ist r at o r but, t his t ime, by a court of pro bat e
jur isdict ion. In the case of incapacit y or incompetency of
the part y, this fact will merely ent ail the appoint ment of
a guar dian ad litem by t he court t rying the case upon
being informed t hereo f by counsel of t he par t ies, the
part ies t hemselves, or other reliable sources.
b. The failure of t he counsel to comply wit h his
dut ies under t his sect ion is now a ground for disciplinar y
action, as his inact ion will result in undue delay in the
proceedings or may prejudice the int erest s of his client's
successors in int erest.
c. In the absence of a legal r epr e se nt at ive of the
deceased part y, the opposing part y shall be r equir ed,
wit hin a specified time, to procure the appo int ment of
an executor or administ rat or for the est at e of the deceased
in an appropr iat e special proceeding. Under the former
pr o cedur e, in such a cont ingency t he opposing part y
was aut horized to directly procure the appoint ment of a
legal r e pr e s e nt at iv e for the deceased by himself and
app ar e nt l y w it ho u t part ic ipat io n by t he he ir s of t he
deceased and, consequent ly, with limited judicial interven•
tion in the choice and appoint ment of such r epr esent at ive.

2. These provisions apply where the claim survives


and r egar d le ss of w het he r e it he r t he plaint iff or the
defendant dies or whet he r t he case is in the t r ia l or
appe llat e co urt s. No su m mo ns e s ar e r equ ir e d to be
served on the subst it ut e defendant s. Inst ead, the order
of subst it ut ion shall be served upon the part ies subst it ut ed
in the action; ot herwise, the court does not acquire jur is-

104
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 16

diction over the subst it ut e part y (Ferreria, et al. vs. Vda.


de Gonzales, et al., 104 Phil. 143). Proceedings conducted
by the t rial court after the deat h of the defendant , and
wit hout such subst it ut ion, are null and void (Lawas vs.
CA, et al., L-45809, Dec. 12, 1986).

3. Upon lear ning of the deat h of a part y, the t rial


court should not order the a me nd me nt of the complaint
but the appearance of the decedent's legal repr esent at ive.
An order for the- amendment of the co mpla int before
subst it ut io n of the deceased part y is void (Casenas vs.
Rosales, L-18707, Feb. 28, 1967). Upon the deat h of the
part y, t he at torney has no furt her aut hor it y to appear,
save to inform the court of his client's deat h and to take
steps to safeguard t he decedent ' s int er est , unless his
services are furt her r et ained by the subst it ut e part ies
(Vda. de Haberer vs. CA, et al., L-42709, May 26, 1981;
Lavina, et al. vs. CA, et al., G.R. Nos. 78295 and 79917,
April 10, 1989; Heirs of Maxima Regoso vs. CA, et al.,
G.R. No. 91879, July 6, 1992). The defendant ' s legal
heirs are his legal r epr esent at ives if t here is no pending
proceeding for the set t lement of his est ate (Magdalera vs.
Benedicto, 103 Phil. 1102 [Unrep.J). The rule is t hat in
the subst it ut io n of the deceased, priorit y is given to his
legal r epr esent at ive, i.e., the executor or administ r at or of
his est at e. The court may allow the subst it ut io n by the
he ir s inst ea d i f t her e i s u nr e a s o na b l e delay in the
appo int ment of an executor or administ r at or or when the
est ate was extrajudicially sett led (Lawas vs. CA, et al.,
supra).

4. The quest ion as to whet her an action survives or


not depends on the nat ure of the action and the damage
sued for. In the causes of action which survive, the wrong
complained of affects primar ily and principally propert y
and property righto, the injuries to the person being merely
inc ident al; while in the causes of act ion which do not
sur vh » , the injury complained of is to the person, the

105
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 16

property and property rights affected being incidental.


Thus, for inst ance, the claim of the deceased plaint iff in
the present action to quiet tit le over the land in lit igat ion
affects primar ily and principally property and propert y
right s and, t herefore, is one t hat survives even after her
deat h (Bonilla, et al., etc. vs. Barcena, et al., L-41715,
June 18, 1976).

5. . The actions t hat survive against the


decedent ' s r e p r e s e nt a t i v e s are : (a) act io ns to r eco ver
rea l and personal propert y against the est at e; (b) act ions
to enforce liens t hereon; and (c) act ions to recover for an
injury to person or propert y by reason of tort or delict
commit t ed by the deceased (Board of Liquidators, etc.
vs. Heirs of Maxima M. Kalaw, et al, L-18805, Aug. 14,
1967). See Rule 87 and notes t her eunder. See also
Sec. 20 of t his Rule whic h ha s been a me nd e d an d
pr o vide s a new procedure for cont ract ual money
claims.

6. Where during the pendency of act ions filed by


the guar dian in behalf of his ward, the lat t er died and
the former was t her ea ft er appo int ed ad m in i st r at o r of
the est at e of the decedent, he may be subst it ut ed as a
represent at ive part y in the pending act ions (Ypil vs. Solas,
et al., L-49311, May 27, 1979).

7. It has been held t hat when a part y dies and the


act ion sur vives his deat h, but no order of subst it ut io n
was issued or effected by the court, the trial held by said
court was null and void since it did not acquire jurisdic•
tion over the legal r epr esent at ive or heirs of the decedent,
hence the judg ment was not binding on t hem (Ferreria,
et al. vs. Vda. de Gonzales, et al., supra). In a lat er case,
however, i t was also held t hat where counsel failed to
comply wit h his dut y under t hen Sec. 16 to inform the
court of the deat h of his client, the defendant , and no
subst it ut io n of such part y was effected, the proceedings
and ju dg me n t t her e i n are valid i f t he act ion (in t his
case, eject ment ) sur vives the deat h of said part y and
106
RUL E 3 P AR T I E S T O CI VI L A C T I O N S SE C . 16

said decision is bind ing upon his successor in int er est


(Sec. 47lb]. Rule 39; Florendo, et al. vs. Coloma, et al
G.R. No. 60544, May 19, 1984).
In the Florendo case, however, the defendant died
while the case was pending on appeal in the Court of
Appeals and, consequent ly, involved only a review of the
evidence pr esent ed with the part icipat ion of the original
part y lit igant s. Also, since the binding effect of a judg•
ment in an eject ment case upon the successors in int erest
of a deceased lit iga nt are specifically provided for in
Rule 39 , the p r o c e d ur a l lapse ap pe ar s to have been
disregarded in t he int er est of subst ant ial just ice.
8. . Wher e the plaint iff fat he r br o ugh t an
act ion against a common car r ier for the deat h of his
son, but because of his failing healt h he assigned all
his right s t her ein to a t hird part y, the subsequent
deat h of said original plaint iff does not t er minat e the
action. The rights assigned are t ransfer able in charact er
and this sit uat ion is not covered by Sec. 17 (now
included in Sec. 16, as amended) of this Rule since
the plaint iff died after he had already assigned his
r ight s in the action. Where a right is t ransferred
before t he inst it ut ion of the action, the suit should be
brought in the name of the assignee; where t he
t ransfer is made pendente lite, the assignee should be
s u bs t it ut e d for t he original plaint iff. The failure to
effect such formal subst it ut ion, however, will not
prevent the court from render ing judgment in favor of
the assignee. If judgment was r endered in favor of the
ass ig no r becaus e the s u bs t it ut io n was not duly
effected, the ass ig no r shall hold t he proceeds of t he
ju d g me n t in t r us t for the ass ig nee (Del Castillo vs.
Jaymalin, et al., L 28256, Mar. 11, 1982).
9. Sec. 16 of t his Rule requires t hat prompt notice
of the deat h of the plaint iff should be made so t hat sub•
st itut ion by a legal r epr esent at ive of the part y may be
effected. Where the counsel of plaint iff filed such motion

107
RUL E 3 R E M E D I A L L AW COMPENDIU M S E C S . 1 7 -1 8

for subst it ut ion 5 days after a decision in the case had


been rendered by the court, alt hough plaintiff had died
more t ha n a year prior t heret o, said judg me n t is not
binding. No valid subst it ut io n having been made, the
court never acquired jur isdict io n over the legal repre•
sent at ive for the purpose of making him a part y in the
case. Furt her mo re, the motion for subst it ut io n filed by
counsel for the deceased is null and void as counsel' s
aut hor it y to r epr esent the client had ceased wit h the
latter' s deat h (Chittick vs. CA, et al., L-25350, Oct. 4, 1988;
cf. Saligumba, et al. vs. Palanog, G.R. No. 143365,
Dec. 4, 2008).

Sec . 17. Death or separation of a party who is a


public officer. — Whe n a p u bl i c o fficer is a p a r t y in
a n a c t i o n i n hi s o ffic ia l c a p a c i t y an d d u r i n g it s
p e n d e n c y d ie s , r e s i g n s , o r o t h e r w i s e c e a s e s t o hol d
office, t he a c t io n ma y b e c o nt i n u e d an d m a i n t a i n e d
b y o r a g a i n s t hi s s u c c e s s o r if, w it h i n t h i r t y (30) da y s
aft e r t he s u c c e s s o r t ak e s office o r suc h t im e a s ma y
b e g r a n t e d b y t he c o ur t , i t i s s a t is f a c t o r i l y s ho w n
t o t he C o u r t b y an y p a r t y t ha t t he r e i s a s u b s t a n t i a l
nee d for c o n t i n u i n g o r m a i n t a i n i n g i t an d t hat t he
successo r ado pt s o r co nt inue s o r t hr eat e n s t o adop t
o r c o n t i n u e t he a c t io n o f hi s p r e d e c e s s o r . Befo r e a
s u b s t i t u t i o n i s m a d e , t he p a r t y o r o ffic e r t o b e
a ffect ed, u n l e s s e xp r e s s l y a s s e n t i n g t h e r e t o , sha l l
b e g i v e n r e a s o n a b l e n o t i c e o f t he a p p l i c a t i o n
t h e r e f o r an d a c c o r d e d a n o p p o r t u n i t y t o b e h e a r d .
(18a)

Sec . 18. Incompetency or incapacity. — If a p a r t y


b e c o m e s i n c o m p e t e n t o r i n c a p a c i t a t e d , t he co u r t ,
upo n mo t io n w it h no t ic e , ma y allo w t he a ct io n t o
b e c o n t i n u e d b y o r a g a i n s t t he i n c o m p e t e n t o r
i n c a p a c i t a t e d p e r s o n a s s is t e d b y hi s lega l g u a r d i a n
or g u a r d i a n ad litem. (19a)

108
RUL E 3 P AR T I E S T O CI VI L A C T I O N S S E C S . 1 7 -1 9

Sec . 19. Transfer of interest. — In cas e of an y


t r a ns f e r o f i nt e r e s t , t he a c t io n ma y b e c o nt i n u e d
b y o r a g a i n s t t he o r i g i n a l p a r t y , u n l e s s t he C o ur t
u p o n mo t io n d ir e c t s t he p er s o n t o who m t he i nt e r e s t
i s t r a n s f e r r e d t o b e s u b s t i t u t e d i n t he a c t io n o r
jo ine d wit h t he o r i g i n a l p a r t y . (20)

NOT E S

1. These sect ions provide for the other inst ances


wherein subst it ut io n of part ies is proper, subject to the
condit ions t herein and whenever the court, upon motion
and notice, finds just ifiable reason therefor.

2. The "officer of the Philippines" cont emplat ed in


Sec. 17 does not include a judge who is sued in connec•
tion wit h t he exercise of his judicial funct ions as any
action impugning it is not abat ed by his cessat ion from
office (Republic vs. CFI of Lanao del Norte, L 33949,
Oct. 23, 1973, joint ly deciding t herein L-33986 and L-
34188).

3. Sec. 17 has been amended to make it clear t hat


the action cont emp lat ed t herein is one brought against
the public officer in his official capacit y. Also, this section
is no longer limit ed to act ions involving "an officer of
the Philippines," as it was under the former Rule, since
t her e are per mis s ib le inst ance s for ma i nt a ining civil
suit s against public officers of a foreign gover nment ,
subject to the nat ur e of the action and considerat ions of
int er nat io nal law and agreement s. Furt her mor e, it is
not required, as clarified under this revision, t hat what
the successor in office is cont inuing or t hreat ens to adopt
and continue is an action of his predecessor "in enforcing
a law alleged to be in violation of the Const it ut ion of the
Philippines." The challenged action of a public officer
need not necessarily involve a const it ut ional issue. It is
believed t hat no such delimit at ion was intended under the
old Rule which aut horized such subst it ut ion as long as

109
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 2 0

it was sat isfactorily shown to the court that t here was a


subst ant ial need for cont inuing the action (see Moore's
Federal Practice, Vol. II, p. 243).
4. Under Sec. 18, as amended, in case of supervening
incapacit y or incompet ency of a part y, the act ion shall
cont inue to be prosecut ed by or against him personall y
and not t hr o ugh his r e pr e s e nt at ive s , in line wit h the
ame nd ment s in Secs. 3 and 5 of this Rule, since he con•
t inues to be the real part y in int er est alt hough assist ed
by the corresponding guardian.

5. Sec. 19 of t his Rule does not provide t hat the


subst it ut io n of part ies cont emplat ed t her ein is manda•
tory, it being per missible to cont inue the act ion by or
against the original part y in case of t ransfer of int er est
pendente lite. As the original part y is bound by the final
outcome of the case, his subst it ut io n by the t ransfer ee is
not necessary unless t he su bst it ut io n by or the jo inder of
the lat t er is required by the court; ot herwise, failure to
do so does not w a r r a n t t he dis missa l of the case. A
t r a n s f e r e e pendente lite is a p r o p e r , an d no t an
i nd is p e ns a b le , part y in t he case (Heirs of Francisco
Guballa, Sr., et al. vs. CA, et al, G.R. No. 78223, Dec. 19,
1988). However, where t he t ransfer was effected before
the c o m me nc e m e n t of the su it , the t r ans f e r e e mus t
necessar ily be the defendant or the plaintiff, but he may
file a t h ir d - p a r t y co mpla int aga ins t and imp lead the
t ransferor in the act ion whenever the same is necessar y
and proper for a complete det er minat io n of all the r ight s
of the part ies.

S ec . 20 . Action on contractual money claims. —


Whe n t he act io n i s for r eco ver y o f mo ne y a r is i n g
fro m c o n t r a c t , e x p r e s s o r i m p l i e d , an d t he
de fe nda nt dies before e nt r y of final ju d g me n t in the
Court i n whic h t he act io n wa s p e nd in g a t the t im e o
f suc h d e a t h , i t sha l l no t b e d is m i s s e d bu t sha l l

110
RUL E 3 P AR T I E S T O CIVI L AC T I O N S SE C . 2 0

i nst ea d be a llo wed to co nt inu e unt i l e nt r y of final


j u d g m e nt . A fa vo r a b l e j u d g m e n t o bt a ine d by t he
p la int i f f t he r e i n s ha l l b e enfo r ce d i n t he m a n n e r
espec ia l l y pr o vide d i n t hes e Rule s for p r o s e c u t i n g
claims ag a inst the est at e of a deceased person. (21a)

NOTE S

1. This was t he former Sec. 21 of the old Rule which


has been amended to provide a new procedure specially
for the disposit ion of co nt r act ual money claims where
the defendant dies before the t er minat ion of the action
thereon. Two impo rt ant aspect s thereof must incept ively
be t ake n note of: (1) the act ion mus t pr imar ily be for
recovery of mo ney, debt or int er es t t her eo n, and not
where t he subject mat t e r is pr imar ily for some ot her
relief and t he collect ion of an amount of money sought
t herein is merely incident al t heret o, such as by way of
damages; and (2) t he claim subject of the act ion arose
from a cont ract, express or implied, ent ered into by the
decedent in his lifet ime or t he liabilit y for which had
been assumed by or is imput able to him.

2. Under the former procedure, the dat e of the deat h


of the defendant , in relat ion to the stage of the act ion at
t hat time, was det er minat ive of the procedure t hat should
be followed t hereaft er. If he died "before final judgment
in t he Court of F ir s t I nst ance, " t he act ion should be
dismissed wit hout prejudice to the plaintiff present ing
his claim t herein as a money claim in the set t lement of
the est at e of the deceased defendant in accordance wit h
and as required by Sec. 5, Rule 86. The reason given for
the adoption of such procedure was t hat if the defendant
dies and despite such fact the case against him proceeds
to ju d g me nt , his e st at e will no net he l es s have to be
settled in a Regional Trial Court (then, t he Court of First
I nst ance) wher e in such ju dg me n t for money shall be
present ed as a claim. Consequent ly, unless the action is

111
RUL E 3 R E M E D I A L LA W C O M P E N D I U M SE C . 2 0

dismissed upon his deat h, the subsequent proceedings may


result in a Regional Trial Court reviewing the decision of
anot her or even the same Regional Trial Court involving
the same money claim.
On the ot her hand, if the defendant died while the
case was on appeal from the judgme nt of the Regional
Trial Court, the appeal will cont inue with the deceased
being s u bst it ut e d t her e i n by his he ir s or ot he r legal
represent at ive. When the judgment of the appellat e court
t her eo n is t her eaft er r ender ed and shall have become
final and executory, t hat judgment shall be the basis of the
money claim to be filed in t he pr o bat e court , as likewise
aut horized by Sec. 5, Rule 86.

3. The pr esent revised procedure is believed to be


s imp ler and more pr act ical since, after all, the court
wher e in t he co nt r act ual money claim was pend ing a t
the t ime of the decedent ' s deat h must have been fully
acquaint ed wit h the facts and issues t herein, or may even
have been in the process of render ing ju dgment t hereon.
Accordingly, to require the dismissal of said case and t he
t ransfer t hereof to the probat e court will cause an un•
necessar y and ot herwise avoidable burden on said court
which will t hen be obliged to try and adjudicat e the case
as a claim aga inst the est at e of the deceased defendant ,
with the possibilit y t hat it may even ent ail a duplicat ion
of efforts and proceedings in whole or in part .
4. Under the present procedure, if the defendant dies
before ent r y of final judg ment in the court where it was
pending at t hat time, t he action shall not be dismissed but
shall be allowed to cont inue unt il ent ry of final judg ment
t hereon. Such ent r y of final judgme nt may t ake place in
the Regional Trial Court itself, where no appeal was t aken
from its judgment , or it may be the ent ry of judg ment of
the appellat e court. In eit her case, the former objection
against the probat e court having to review the judgme nt
of anot her court, which may possibly be of the same rank,

112
RUL E 3 P AR T I E S T O CI VI L AC T I O N S SE C . 2 0

is eliminat ed. Since the money claim t hat shall t hereaft er


be filed in the probat e court is based upon a final and
executory judgme nt of a court of competent jur isdict ion,
the former does not have to, because it cannot, review
t hat judgment which, for t hat mat t er, is even conclusive
upon the part ies t heret o and t heir privies.
5. . This sect ion provides t hat the act ion shal l
be allowed to cont inue unt il ent ry of final judgment ,
hence it will be necessar y to have a legal r epr esent at ive
appear and be subst it ut ed for the deceased defendant .
For this purpose, the provisions of Sec. 17 of this Rule
shall also apply since the same governs regardless of
which of the part ies to the action dies or whet her the
case is in the trial or appellat e court.

6. . This sect ion speak s of co nt r act s , "expr ess


or implied," which is the same terminology used in Sec.
5, Rule 86 wit h regard to one of the bases for the
money claims to be filed t hereunder, and, formerly, in
Sec. 1(a), Rule 57 on preliminar y at t achme nt with
respect to the bases of causes of act ion cont emplat ed
t herein. In Leung Ben vs. O'Brien, et al. (38 Phil. 182),
it was held t hat the cont ract s, express or implied,
referred to in Rule 57, include all purely per so na l
obligat ions which are not based on a delict or a tort, t hat
is, a quasi-delict. According• ly, on the sam e co nce pt ua
l r at io na le , t he "implied" contract s ment ioned in this
section and in Sec. 5, Rule 86 may properly include what
are referred to in civil law as quasi-contract s, and t his is
the t erm now used in Sec. 1(a) of Rule 57, as amended.

7. Where the act ion is for the revival of a judgment


for a sum of money which has become st ale for non-
execut ion after the lapse of 5 years, and the defendant
dies dur ing t he pendency of said action, Sec. 20 of this
Rule is not involved since the action is merely to keep
alive t he judg me n t so t hat the sums a war ded in the
act ion for revival t hereof may be pr esent ed as claims

113
RUL E 3 REMEDIA L LA W C O M P E N D I U M SE C . 21

against the estate of the decedent (Romualdez, et al. va.


Tiglao, et al, G.R. No. 51151, July 24, 1981). In fact, to
be more accurate, the subject of the action is the dormant
judgment sought to be revived, and not a claim for a
sum of money of contractual origin, since the same
may also be said even if the claim arises from a crime or a
tort.

Sec. 21 . Indigent party. — A p a rt y ma y be


au t h o ri ze d to li ti gate his act i on , clai m or d efen s e
a s a n i n d i g e n t i f the c o u rt , u p o n a n ex parte
ap p li c at i o n an d h eari n g , i s sat i sfi ed that the p art y
i s on e wh o ha s n o mon e y o r p rop ert y su ffi ci en t and
avai lab le for food, sh elt e r an d b asi c n e c e s s i t i e s for
h i mse l f an d his fami ly.
S u c h a u t h o r i t y sh al l i n c l u d e a n e x e m p t i o n
from p ay m en t of d ocke t and oth e r lawfu l fees, and
o f t r a n s c r i p t s o f s t e n o g r a p h i c n ot e s w h i c h the
cou rt ma y ord er to be fu rn i sh e d him . The amou n t o
f the d o c k e t an d ot h e r la w fu l fee s w h i c h the i n d i gen
t wa s e xe m p t e d from p ayi n g sh all be a lien on an y
j u d g m e n t ren d e re d in the cas e favorab le to the
i n d i g en t , u n l e s s the Cou rt ot h e rw i s e p rovi d e s .
An y a d v e r s e p art y ma y c o n t e s t the gran t o f
su c h a u t h o r i t y a t an y t i m e b efor e j u d g m e n t i s
re n d e re d b y the t ri al cou rt. I f the Cou rt sh ou l d
d e t e rm i n e after h ea ri n g that the part y d ecla re d a s a
n i n d i g e n t i s i n fac t a p e r s o n wi t h s u f f i c i e n t i n com
e o r p rop e rt y, the p rop e r d ocke t an d ot h e r l a w f u l
fee s sh a l l b e a s s e s s e d an d c o l l e c t e d b y the clerk
of court. I f p a y m e n t i s not mad e wi t h i n the tim e
fixed by the cou rt, e xe c u t i o n shal l i ssu e for the
p a y m e n t thereof, wi t h o u t p rej u d i ce to suc h ot h e r
s a n c t i on s a s the Cou rt ma y i mp ose . (22a)

114
RUL E 3 P AR T I E S T O CI VI L A C T I O N S SE C . 2 2

NOT E S

1. . The t er m "indigent part y" has been


subst it ut ed for what used to be called a "pftoper lit igant."
For purposes of a suit in forma pauperis,-* paupe r lit igant
is not really a paupe r but a per so n who is indigent
alt hough not a public c har ge, i.e., that he has no
pr o pert y or income- sufficient for his support aside from
his labor, even if he is self-support ing when able to work
and in emplo yment (see Black's Law Dictionary, 4th Ed.,
pp. 913, 1284, citing People vs. Schoharie County, 121
N.Y., 345, 24N.E. 830). This same concept was adopt ed
for purposes of cr iminal cases in applying the provisions
of R.A. 6033, R.A. 6034 and R.A. 6035 .

2. . The pr ese n t concept of an ind igent lit igant


is believed to be more realist ic in light of the
co nt empor ar y sit uat io n. The proof of pauper is m
requir ed under the former Rule consisted merely of
affidavits or certificates of the corr espo nding t r e a s u r er s
t hat the part y had no regist ered pro pert y. I t was
considered inaccurat e and misleading since a part y may
be financially sound alt hough he ha s no t acq u ir e d or
r e g is t e r e d any pr o pe r t y for reasons of his own, hence
the pr esent revision opted for judicial in t er vent io n wit h
sanct io ns as set out in t his section.

3. Section 21 , Rule 3 of the pr esent Rules has not


been affected by the incorporat ion of Rule 141 on Legal
Fees and the two ame nd me nt s t heret o, now const it ut ing
Section 19 thereof. It is to be noted t hat said Section 21 of
Rule 3 could have been repealed when the present Rule
141 was adopted, or also amended when the lat t er was
then a mended. The fact is t hat the two provisions can be
har monized and can st and toget her.
Thus, when an applicat ion to lit igate as an indigent
lit igant is filed and the court finds t hat it complies wit h
Section 19 of Rule 141, the aut hor it y to lit igate as such is

115
RUL E 3 R E M E D I A L LAW COMPENDIU M SE C . 2 2

aut omat ically grant ed. However, if both r equir eme nt s


t herein have not been complied wit h, a hear ing shall be
conducted and the applicat ion resolved on the evidence
of the part ies. Also, the adverse part y may lat er still
co nt e s t the gr a n t before j u d g m e n t an d pro cee d i n
accordance wit h the pr esent provisions of said Section 21
(Algura, et al. vs. City of Naga, et al., G.R. No. 150135,
Oct. 30, 2006).

Sec. 22. Notice to the Solicitor General. — In an y


act i o n i n v o l v i n g the va l i d i t y o f an y t reat y , law ,
o rd i n a n c e , e x e c u t i v e ord e r , p re s i d e n t i a l d e c re e ,
ru les or re gu l at i o n s , the court, in its di sc ret i on , ma y
req u i re the ap p ea ran c e of the S oli ci t or G en e ra l wh o
ma y be h eard in p erso n or t h rou g h a r e p re s e n t a t i v e
duly d e s i g n a t e d by him. (23a)

116
RULE 4

VENU E OF ACTIONS

S e c t i o n 1. Venue of real actions. — A c t i o n s


aff ect i n g t it le to or p o s s e s s i o n of real p rop ert y, or
i n t eres t t h e rei n , shal l b e c o m m e n c e d an d t ri e d i n
the p ro p e r Cou rt w h i c h ha s j u ri s d i c t i o n ove r the
are a w h e r e i n the rea l p r o p e r t y i n v o l v e d , o r a
p orti o n t hereof, i s si t u at e d .
F o r c r b r e ^ n t r y an d d e t a i n e r a c t i o n s sh al l b e
c o m m e n c e d an d t ri e d i n the m u n i c i p a l trial Cou rt
o f t he m u n i c i p a l i t y o r c i t y w h e r e i n t h e re a l
p rop e rt y i n v o l v e d , or a p ort i o n thereof, i s si t u at ed .
( l[ a],2[a] a)

Sec . 2. Venue of personal actions. — All o t h e r


a c t i o n s ma y b e c o m m e n c e d an d tri e d wh e r e the
p lain ti ff or an y of the p ri n ci p a l p lai nt i ffs resi d es , o
r w h e r e the d e f e n d a n t o r an y o f the p ri n c i p a l
d e f e n d a n t s re si d es , or in the cas e of a n o n re s i d e n t
d e f e n d a n t wh er e h e ma y b e found, a t the el ect i o n
of the plaintiff. (2[b]a)

NO TES

1. Rule 4 formerly provided different rules of venue


in the so-called inferior court s and the Regional Trial
Courts, both in real and personal act ions, alt hough the
lower court s have long assumed t he st atus of courts of
record. Such var iant rules of venue so met imes result ed
in conflicting views requir ing clarificat ion. Furt her mo re,
Par. 9 of the I nt er im or Tr ansit io na l Rules and Guidelines
provided, as early as 1981, t hat "(t)he procedure to be
observed in met ropolit an trial courts, municipal trial courts
and mu n i c i p a l c ir cu it t r ia l co ur t s , i n all cases an d
proceedings, whet her civil or criminal, shall be the same

117
RUL E 4 REMEDIA L LA W C O M P E N D I U M S E C S 1-2

as t hat to be observed in the regional t rial courts." The


present revised Rule has adopted uniform rules of venue
for all t r ia l co urt s, the venue for real act io ns being
det ermined by the place where the real propert y is sit uat ed
and, for personal actions, by the residence of the part ies,
wit h special provisions for nonresident defendant s.

2. The venue of the real act ions co nt emp lat ed in


the first par agr aph of Sec. 1 of t his Rule shall be "in t he
proper court which has jur isdict ion over the area wherein
the rea l pr o p er t y invo lved, or a po rt io n t her eo f, is
s it uat ed. " This is so because under the a me nd me nt s
i nt r o du c e d by R.A. 7691 to Secs. 19 an d 33 of B.P. Blg. 129, both the Re
courts now have jur isdict ion over real act ions, depend ing
on the va lu e of the p r o p er t y in c o nt r o ve r s y . Thi s
pr esuppo ses, however, t hat such real act ion invo lves
the tit le to or the possession of the real propert y or any
int erest t herein.

3. Where the subject - mat t er of the act ion involves


var ious parcels of land s it uat ed in different provinces,
the venue is det ermined by the singular it y or plur alit y
of the t r ansact io ns invo lving said parcels of land. Thus,
where said parcels are t he objects of one and the same
t ransact io n, the venue was in t he t he n Court of Fir st
Inst ance of any of the provinces wherein a parcel of land
is sit uat ed (El Hogar Filipino vs. Seva, 57 Phil. 873). If
the parcels of land are subject of separat e and dist inct
t r ansact io ns, t her e i s no common venue and sep ar at e
act ions should be laid in the Court of First Inst ance of
the province w her e i n each parcel of land i s s it uat e d
(Mijares, et al. vs. Piccio, etc., et al., 101 Phil. 142).

4. Act io ns for the a n n u l m e nt or r esc iss io n of a


sale and the r et ur n of realt y (Muhoz vs. Llamas, et al.,
87 Phil. 737; Gavieres vs. Sanchez, et al., 94 Phil. 760;
Punsalan vs. Vda. de Lacsamana, et al., G.R. No. 55729,
Mar. 28, 1983), to compel the vendor to accept payment

118
RUL E 4 VENU E OF ACTION S SEC S . 1-2

of t he pur chas e price of t he land (Lizares vs. Caluag,


et al., L-17699, Mar. 30, 1962), or to compel the vendor to
deliver the cert ificate of t it le to the land (Espineli, et al.
vs. Santiago, et al., 107 Phil. 830) are real actions and
the location of the land det er mines the venue of the action.
But act ions only to recover the pur chase price of the land
(Garcia vs. Velasco, 72 Phil. 248) or for recovery against
the Assur ance Fund (Hodges vs. Treasurer of the Phil.,
50 Phil. 16) are personal act ions.

5. An act ion for the annu l me nt of the cancellat ion


of the award of a lot in favor of the plaintiff, which he
was pr epar e d to pay for pur s ua nt to said award, does
not involve the issue of possession or tit le to the propert y,
hence it is a personal act ion (Hernandez vs. DBP, et al., L-
31095, June 15, 1976).

6. . An act ion for t he review of an


ad m i n is t r at iv e decision involving real propert y should he
brought in the Regional Trial Court of the place where
the officer who render ed t he decision holds office, and
not where the land is sit uat ed (Salud vs. Executive
Secretary, L-25446, May 22, 1969), such as where the
mat t er in disput e is a fishpond permit (Digon vs.
Bayona, 98 Phil. 442; Sarabia vs. Secretary, 104 Phil. 115)
or t he r ight to a t imber concession (Suarez vs.
Reyes, L-19828, Feb. 28, 1963), the location of the
propert y being immat er ial.

7. . An act ion to compel the mo rt gagee to


accept payme nt and for the consequent cancellat io n of
a real est at e mort gage is a personal act ion, if the
mort gagee has not foreclosed the mortgage and the
mort gagor is in possession of t he pr emises, since
ne it her the plaint iff mort gagor' s tit le to nor possession
of the propert y is in quest io n (Hernandez vs. Rural
Bank of Lucena, Inc., L-29791, Jan. 10, 1978; cf. Chua
vs. Total Office Products, etc. Inc., G.R. No. 152808, Sept.
30, 2005), ot herwise, it is a real action.

119
RUL E 4 R E M E D I A L LA W C O M P E N D I U M S E C S . 1-2

8. An^ action by the landowner against the subdivi•


sion developer for the rescission and t erminat io n of their
contract and the r et ur n to the plaint iff of all document s
and t it les, wit h damages by reason of the defendant ' s
cont ract ual breach, is a real act ion as the relief sought
will necessar ily ent ail t he recover y by the plaint iff of
possession of the land or such unsold port ions thereof,
hence t he venue of the action is determined by the location
of the real propert y (Tenorio vs. Paho, et al, L-48117,
Nov. 27, 1986).
9. An act ion filed by the husband for damages, based
on the wife's adult ero us acts, and for his shar e in the
fruits of the conjugal par t ner ship, with a prayer for pre•
l i m inar y inju nct io n to r est r a i n her from selling real
pr o pert y be lo nging to t he conjugal p a r t ne r s h i p , is a
personal act ion as he does not t hereby ask to be declared
the owner thereof, nor for possession or part it io n of the
same, but merely seeks to exercise his right as adminis•
t rator of the conjugal part ner ship (De Guzman, et al. vs.
Genato, et al., L-42260, April 10, 1979).

10. The venue in eject ment cases under Sec. 1 of this


Rule ma y be c ha ng e d by a g r e e m e n t of the p a r t i e s
p u r s u a nt to Sec. 4 t her eo f (Villanueva vs. Mosqueda,
et al, G.R. No. 58287, Aug. 19, 1982), but it must now be
made in writ ing and before the filing of the act ion.

11. . The rules of venue for per so nal actions in


the infer ior co urt s an d in t he Regio nal T r ia l Co urt s
ar e generally made to depend on the residence of the
part ies. The residence referred to is the place where
the part y actually resides at the t ime the act ion is
inst it ut ed (De la Rosa vs. De Borja, 53 Phil. 998), not his
per ma ne nt home or domicile (Koh vs. CA, et al, L-40428,
Dec. 17, 1975; cf. Arevalo vs. Quilatan, G.R. No. 57892,
Sept. 21, 1982, regarding service of summo ns at
defendant ' s residence).

120
RUL E 4 VENU E OF ACTION S SE C . 3

12. The residence of t he person is his personal, act ual


or physical habit at ion or his act ual residence or place of
abode (Fule, et al. vs. CA, et al., L-40502, Nov. 29, 1976),
whet her per ma ne n t or t empor ar y as long as he resides
with cont inuit y and consist ency t her ein (Dangwa Trans.
Co., Inc. vs. Sarmiento, et al., L-22795, Jan. 31, 1977;
Ang Kek Chen vs. Spouses Calasan, G.R. No. 161685,
July 24, 2007).

Sec . 3. Venue of actions against nonresidents. — If


an y o f t he d e f e n d a n t s do e s no t r e s i d e an d i s no t
fo un d i n t he P h i l i p p i n e s , an d t he a c t io n affect s t he
p e r s o n a l s t a t u s o f t he p la int iff, o r an y p r o p e r t y o f
said d e f e n d a n t lo c a t e d i n t he P h i l i p p i n e s , t he act io n
ma y b e c o m m e n c e d an d t r ie d i n t he C o u r t o f t he
p la c e w h e r e t he p l a i n t i f f r e s i d e s , o r w h e r e t he
p r o p e r t y o r an y p o r t io n t he r e o f i s s i t u a t e d o r fo und .
(2[cla)

NOT E S

1. Wher e a per so na l act ion is aga inst a resident


defendant and a nonresident defendant but who is in the
Philippines, both of whom are principal defendant s, the
venue may be laid eit her where the resident defendant
r esides or wher e the no nr e s id e n t de fe nd a n t may be
found, as aut horized by Sec. 2 of this Rule, but with an
addit ional a lt er nat ive venue, i.e., the residence of any of
the principal plaint iffs, pur sua nt to Secs. 2 and 3.
It will be observed t hat when t here is more t ha n one
defendant or plaint iff in t he case, the residences of the
pr incipal par t ie s should be t he basis for det er min in g
the proper venue. Ot herwise, the purpose of the Rule
would be defeated where a no minal or formal part y is
impleaded in t he act ion since the lat t er would not have
the degree of int erest in the subject of the action which
would war r ant and ent ail the desirably active part icipat ion
expected of lit igant s in a case.

121
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SEC . 3

2. Sec. 4 of the former Rule provided t hat "(w)hen


improper, venue is not objected to in a motion it is deemed
waived." Correlat ively, Sec. 5 of Rule 16 provided t hat
"(a)ny of the grounds for dismissal provided for in t his
r ule, except impr o pe r venue, may be pleaded as an
affir mat ive defense, and a preliminar y hear ing may be
had t hereon as if a motion to dismiss had been filed."
The aforesaid Sec. 4 of the former Rule has been
deleted, and Sec. 5 of Rule 16 correspondingly modified,
in these revised Rules. There does not appear to be any
cogent reason to single out impr oper venue from the
var ious preliminar y objections t hat may be raised against
a complaint , and require t hat it may be raised only in a
mot ion to dis miss UNDE R pain of it s being considered
waived for failure to do so. It is ent irely possible t hat
such object ion wa s not i m me d iat e l y d is cer nib le bu t
became appar e nt only at the t ime t he defendant pr epar ed
his answer or t hat , for any other reason, he was not t hen
in a posit ion to file a motion to dismiss.
Under t hese revised Rules, t herefore, the ground of
improper venue is placed on t he same footing as the other
grounds for a mot ion to dismiss enu mer at ed in Sec. 1 of
Rule 16 and is ent it led to the same considerat ions in t hat,
if it is not raised in a motion to dismiss, it may likewise be
alleged as an affir mat ive defense in t he answe r for a
preliminar y hear ing t hereon. At all event s, it is likewise
subject to the same sanct ion provided in Sec. 1, Rule 9
t hat if it is not pleaded as an objection eit her in a motion to
dismiss or in the answer, it is deemed waived.

3. . Wher e the pla i nt i f f is a no n r e s i d e n t of


the P hilippines but is per mit t ed to sue here (as in the
case of a foreign corporat ion wit h the requisit e license
under Sec. 123 of the Corporat ion Code), t hen the venue
is the place wher e the defendant resides, or, in real
act ions, where the real propert y or par t thereof is
sit uat ed. This is proper since the alt er nat ive venue
grant ed to plaint iffs

122
RUL E 4 VENU E O F ACTIO N S SE C . 4

is not available to said corporat ion (see Time, Inc. vs.


Reyes, L-28882, May 31, 1971, involving a suit against
a foreign corporat ion).

4. . Where, on t he ot her hand, i t is the


defendant who is a nonresident and is not found in the
Philippines, civil act ions are proper only when the
act ion affects the p e r s o na l s t a t u s o f the p la i nt i f f o r
p r o p e r t y o f the defendant, in which case Sec. 2
det er mines the venue. See Sec. 15, Rule 14 r egar ding
service of summo n s in these cases.

5. . An except io n to the gener a l rules on venue


is found in civil act ions for damages in case of libel,
whet her a criminal act ion t herefor has been filed or not,
as special rules of venue are provided in Art. 360 of
the Revised Penal Code, as last amended by R.A. 4363.
Said venue provis io ns apply to bot h r e s id e nt s and
no nr e s id e nt s , as su m i n g t hat jur is d i ct io n over the
lat t e r ha s been acquired (Time, Inc. vs. Reyes, et al.,
supra).

Sec . 4. When Rule not applicable. — Th i s Ru l e


shall not app l y —
(a) In t h os e case s wh e r e a sp eci fi c rule or law
p rovi d e s o t h e rw i s e ; or
(b) Wh er e the p a rt i e s hav e vali d l y agree d in
w r i t i n g b e f o r e the f i l i n g o f the a c t i o n o n the
e xc lu si v e ven u e thereof. (3a, 5a)

NO TES

1. Sec. 4(b) enunc iat es a clarification of the rule


regarding st ipulat io ns of the part ies on venue. It requires
a valid wr it t en agr eement executed by the part ies before
the filing of the act ion. Accordingly, the provision in the
former Sec. 3 of t his Rule to the effect t hat "(b)y wr it t en
agreement of the part ies the venue of an action may be
changed or t r ans fer r ed from one province to anot her "

123
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SE C . 4

has been eliminat ed.


To be binding, the part ies must have agreed on the
exclusive nat ur e of the venue of any prospect ive action
bet ween t hem. This adopts the doctrines laid down by
the Supreme Court requiring t hat, to avoid the general
rules on venue, the agreement of the part ies t hereon must
be restrict ive and not permissive. Those decisions are set
out hereunder by way of illust rat io ns, aside from other
decisional rules on venue.

2. It is fundament al in t he law governing venue of


act io ns t hat the s it u s i s fixed to at t a i n the gr eat es t
co nvenie nce possible to the l it ig a nt s by t ak in g into
considerat ion the maximu m accessibilit y to t hem of the
court s of just ice (Koh vs. CA, et al, L-40428, Dec. 17,
1975). Venu e in p e r s o n a l a c t io n s i s fixed for the
convenience of the plaint iff and his w it nes se s and to
promot e the ends of just ice. Where the contract, subject
of the suit, was executed at the t ime when both plaint iff
and defendant had t heir business addresses in the City of
Manila and cont ained a proviso t hat all actions on said
c o nt r a c t "may be br o u g h t i n an d s u b m i t t e d t o the
jur isdict io n of the proper court s in the City of Manila,"
but at the t ime of suit t hereo n all t he p art ies had t heir
respect ive offices or residences wit hin the jur isdict io n of
the Province of Rizal, the act ion t hus inst it ut ed in the
Court of First Inst ance of Rizal should not be dismissed
o n t he g r o u n d o f i m p r o p e r ve nu e as , U N D E R suc h
cir cumst ances, the ends of just ice can not be served or
promot ed by confining the sit us of the action in Manila
(Nicolas vs. Reparations Commission, L-28649, May 21,
1975; see also Capati vs. Ocampo, L-22742, April 30,
1982).

3. . The court may declare agr eement s on venue


as co nt r ar y to public policy i f such st ipu lat io n
unjust ly denies a part y a fair opport unit y to file suit in
the place des ig nat e d by the Rules. The court shal l
t ak e int o
124
RUL E 4 VENU E OF ACTION S SE C . 4

considerat ion t he economic condit ions of the part ies, the


pract ical need to avoid nu mer o us suit s filed against the
defendant in var ious part s of the country and the peculiar
cir cumst ances of the case (Hoechst Philippines, Inc. vs.
Torres, et al, L-44351, May 18, 1978).

4 . Inr c o n t r a c t s o f a d h e s io n , t he r ul e i s t ha t
ambiguit ies t her e in are to be const rued against the part y
who caused it. If the st ipulat io ns are not obscure and
leave no doubt on the int ent io n of t he part ies, the lit eral
mea ning of the st ipu lat io n s mus t be held cont rolling
(Lufthansa German Airlines, et al. vs. CA, et al.,
G.R. No. 91544, May 8, 1992; RCBC vs. CA, et al.,
G.R. 133107, Mar. 25, 1999). Co nt r ac t s of ad hes io n
are not pr o hib it e d , bu t the fact ual c ir cu ms t a nc e s of
each case mus t be carefully scr ut inized to det er mi ne the
respect ive claims of the par t ies as to their efficacy (see
National Dev. Co. vs. Madrigal Wan Hai Lines Corp., G.R.
No. 148332, Sept. 30, 2003).
T hus , in c o nt r a ct s invo lving p a s sa g e t icket s , a
condit ion pr int e d a t the back t her eo f t hat all act ions
arising out of t hat cont ract of carriage can be filed only in
a part icular province or city, to the exclusion of all ot hers,
was declared void and unenforceable due to the st at e of
the shipping indust r y. The Court noted t hat the acut e
short age of int er- is land vessels could not provide enough
ac co m mo dat io ns for plaint iffs to t r ave l to t he venue
indicat ed, aside from the fact t hat the passenger s did not
have t he o p p o r t u nit y to exa min e the fine pr in t providing
for such venue (Sweet Lines, Inc. vs. Teves, etc., et al.,
L-37750, May 19, 1978).
In a s u b s e q u e n t cas e invo lving 6 s u b s c r i p t io n
co nt r a ct s for cellu la r t e le p ho ne s each cover ed by a
mobiline service agr eement , the subscr iber challenged
the provis io ns in said agr e e me nt s providing t hat the
venue for all su it s ar is ing t her efro m shall be in t he
proper court of Makat i, with the subscr iber waiving any

125
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SE C . 4

other venue. The Supreme Court sust ained the validit y


of t hat venue st ipulat ion, considering t hat the subscr iber
has sufficient opport unit y to go over such st ipulat io n
dur ing each t ime he signed those agreement s, as well as
i n the s u b s e q u e n t s u bs c r ip t io n s h e ac qu ir e d while
r e m a i n i n g as a s u bs c r i be r for some t im e (Pilipino
Telephone Corp. vs. Tecson, G.R. No. 156966, May 7,
2004; cf. DBP vs. National Merchandising Corp., L-22957
& L-23737, Aug. 31, 1971).

5. A st ipulat ion as to the venue of a prospective action


does not preclude t he filing of the suit in the residence of
the plaint iff or t hat of the defendant under Sec. 2 of t his
Rule, in the absence of qualifying or restr ict ive words in
the agr eement t hat would indicate t hat the venue can not
be any place ot her t ha n t hat agreed upon by the part ies
(Polytrade Corp. vs. Blanco, L 27033, Oct. 31, 1969),
especially where the venue st ipulat io n was imposed by
the plaint iff for its own benefit and convenience (Eastern
Assurance & Surety Corp. vs. Cui, et al., infra).

6. The former Court of Fir st I nst ance of Quezon


City had jur isdict io n where the defendant electric cor•
porat ion has its principal office in Quezon City, alt hough
t he acts complained of wer e co mmit t ed by its elect ric
plan t in Dagu pa n Cit y, since cor porat e decisio ns are
made in Quezon City and the employees in Dagupan City
merely carr y out said orders, hence the acts sought to
b e r e s t r a i n e d ar e be in g c o m m it t e d i n Quezo n Cit y
(Dagupan Electric Corp. vs. Paho, et al., L-49520,
Jan. 28, 1980; cf. Limjap vs. Animas, et al., G.R.
No. 53334, Jan. 17, 1985; Olongapo Electric Light &
Power Corp. vs. National Power Corp., et al, L-24912,
April 9, 1987).

7. . In act ions involving domest ic


co rpor at io ns, for p u r p o s e s of ve nu e , wha t i s
c o nt r o l l i n g i s t he locat ion of its principal place of
bus iness st at ed in its art icles of incorporat ion, not the
branch office or place of
126
RUL E 4 VENU E OF ACTION S SE C . 4

business t hereof (Hyatt Elevators and Escalators Corp.


vs. Goldstar Elevators Phils., Inc., G.R. No. 161026
Oct. 24, 2005).

8. Where the chat t el mortgage had been fully paid,


but the mort gagee st ill sent a t elegram demanding pay•
ment from the mort gagor, the venue for the lat t er' s action
for damages is not governed by the venue st ipulat io n in
the chatt el mort gage since the suit is not based on said
contract but on defendant ' s act of sending the t elegram
(Zoleta vs. Romillo, G.R. No. 58080, Feb. 15, 1982).

9. Since a t hir d - part y complaint is but ancillary to a


main action, the rules on jur isdict io n and venue do not
apply to it. Thus, a t hir d -part y complaint yields to the
jur isdict io n and venue of t he main act ion even if said t hir d-
part y complaint is based on a separat e agr eement which
specifies a different venue for suit s arising from said
agr ee me nt (Eastern Assurance & Surety Corp. vs. Cui, et
al., G.R. No. 54452, July 20, 1981).

10. Where only one of the two defendant s, both being


indispensable part ies, filed a motion to dismiss for im•
proper venue, while the ot her filed his answer wit hout
raising such object ion, t he hear ing should not proceed
aga ins t the la t t e r unt i l the object ion r a is e d b y the former
shall have been resolved (Punzalan vs. Vda. de Lacsamana,
G.R. No. 55729, Mar. 28, 1983).
11. . The st ipulat io n in a contract of affreight ment
to the effect t hat said agreement "shall be governed by
and const rued in accordance wit h S ingapore Law, and
all d isput es ar is in g ( t ) her e UN DE R shall be subject
to the exclusive jur isd ict io n of the High Court of
Singapore" refers to the forum of the act ions
cont emplat ed t herein. It may not be declared invalid on
the theory t hat such agreement would divest Philippine
courts of jur isdict ion by agr eement of the partieB, since
what has been agreed upon was merely the venue of the
action which may legally

127
RUL E 4 R E M E D I A L LA W C O M P E N D I U M SE C . 4

be done. However, since the defendant did not timely


raise t hat issue but filed two motions to lift the writ of
pr e li minar y a t t a c h me n t and a count er bo nd t herefor,
before it event ually filed a motion to dismiss on the ground
of improper venue, such objection has been waived and
the trial court erred in grant ing the motion and dismissing
t he case (Phil. International Trading Corp. vs. M.V.
Zileena, et al., G.R. No. 102904, Oct. 30, 1992).

12. The foregoing co nsiderat ions no t wit hst and ing,


the Supreme Court, to avoid a miscarr iage of just ice, has
the power to order a change of venue or place of t rial in
civil or criminal cases or ot her judicial proceeding (see
Sec. 5[4J, Art. VIII, 1987 Constitution; Magsaysay vs.
Magsaysay, et al, L-49847, July 17, 1980).

13. . Because of the super vent io n of R.A. No. 7691


{Appendix N) which, inter alia, amended the jur isdict io n
of the regular t rial court s in real act ions, pending final
action on the pr esent revised Rules, the S upreme Court
approved in advance and pro mulgat ed the pr esent Rule 4
to t ak e effect on Augus t 1, 1995, issuing t her efor its
Ad minist r at ive Circular No. 13-95 on Jun e 20, 1995.

128
RULE 5

UNIFO RM PRO CEDURE IN TRIAL COURTS

S ec t i o n 1. Uniform procedure. — The p ro ce d u r e


in the M u n i ci p a l Trial Cou rts sh all be the sam e as
in the R e g i o n a l Tri al Cou rt , e xc e p t (a) w h e r e a
p a rt i cu l a r - p ro vi si o n e xp re s s l y o r i m p li e d l y ap p li e s
onl y t o e i t h e r o f sai d cou rt s , o r (b) i n ci vi l case s
gov e rn e d b y the Rul e o n S u m m a r y Pro ced u re , (n)

Sec . 2. Meaning of terms. — The t er m "M uni cip al


Trial Cou rt s" as use d in t h es e Ru le s shall i n clu d e
M et rop oli t an Trial Cou rt s, M un i ci p al Trial Cou rt s
in Ci t i es , M u n i c i p a l Tri al Cou rt s , an d M u n i c i p a l
Ci rcuit Trial Cou rt s, ( la )

NO TES

1. The former Rule 6 of t hese Rules was expressly


repealed by the I nt er im or Tr ansit io nal Rules and Guide•
lines promulgat ed by t he S upr eme Court effective upon
the implement at ion of B.P. Blg. 129. Par. 9 of said int erim
rules furt her provided t hat "(t)he procedure to be observed
in met ropo lit an trial courts, municipal trial courts and
municipal circuit trial courts, in all cases and proceedings,
whet her civil or criminal, shall be the same as t hat to be
observed in the regional trial courts." This is now provided
in Sec. 1, wit hexcept ions.
2. It has been held t hat int er pleader (Rule 62) is
available in inferior court s alt hough they are not bound
to follow strict ly the procedure therefor as set out for the
t he n Co ur t s of F ir s t I ns t a nc e (Makati Dev. Co. vs.
Tanjuatco, L-26443, Mar. 25, 1969). It is submit t ed t hat
since t he procedure in t he present Regional Trial Court s
is now applicable to the inferior courts, while the lat t er

129
RUL E 5 R E M E D I A L LA W C O M P E N D I U M SE C . 2

can try int er p leader act ions, t hey mus t perforce now
observe the procedure as provided for the Regional Trial
Courts.
3. Under Sec. 22 of B.P. Blg. 129 and Par. 21(a) of
the I nt er im Rules and Guidelines, all cases decided by
the inferior courts may be appealed to the Regional Tria l
Court s. I t has been held t hat such provisions are broad
e no ug h t o co ver j u d g m e n t s b y d e fa u lt , s u m m a r y
ju d g me nt s and ju dg me nt s on t he plea d ings r ender e d
by infer ior co urt s. The co nt r ar y do ct r ines in Luzon
Rubber & Manufacturing Co. vs. Estaris, et al. [L-31439,
Aug. 31 , 1973] and reit er at ed in Stratchan, et al. vs. CA,
et al. [L-23455, Jan . 27, 1985] are t hereby deemed over•
ruled (Guanson vs. Montesclaros, et al., G.R. No. 59330,
June 28, 1983). The co nt ro ver sy in t he pas t on t his
point (see Vda. de Hoyo-a, et al. vs. Virata, et al., G.R.
No. 71171, July 23, 1985), which has now been set at
rest, was due to t he fact t hat , formerly, only default
judg ment s of the Court s of First Inst ance were appealable
under the t hen Sec. 2 of Rule 41 .

4. Where the lower court had no jur isdict ion over


the case, the Regio nal Tr ia l Co urt does not acqu ir e
appe llat e jur isd ict io n. However, while t he appe l la n t
may assail such jur isdict io n on appeal, the part ies may
submit to the original jur isdict io n of the Regional Trial
Court and said court can proceed to try the case (Alvir
vs. Vera, L-39338, July 16, 1984). For the p r e s e n t
procedural rule, see Sec. 8, Rule 40.

5. Formerly, t he decisions of the t hen Court s of First


Inst ance, in cases appealed to t hem from the decisions of
the inferior courts in the exercise of the lat t er' s original
jur isdict io n, were appealable to the S upr e me Court by
cert iorar i under Rule 45 if the only issue was w het her
the conclusion of the t hen Court of Fir st I nst ance was
in consonance wit h law and jur is pr u de n ce, hence t he
issue is consequent ly a purely legal quest ion. Where,

130
RUL E 5 U N I F O R M P R O C E D U R E I N T R I AL C O U R T S SE C . 2

however, t he issue was w het her the findings of fact of


said Co urt of F ir s t I nst a nc e were sup po r t e d by sub•
st ant ial evidence, or such quest ion was raised toget her
with a purely legal issue, a pet it ion for review should be
brought to the Court of Appeals in the form prescribed in
its Resolut ion of August 12, 1971. It was opined t her ein
t hat a lt ho ugh Sec. 22 of B.P. Blg. 129 abando ned t he
" s u b s t a nt ia l evide nce" rule for mer ly pro vided
UNDE R
R.A. 6031 in det er mining whet her to give due course to
the petit ion, the quest ion of where to file said pet it ion,
as above st at ed, has not been affected by B.P. Blg. 129
(Torres, et al. vs. Yu, et al, L-42626, Dec. 18, 1982; cf.
Mania vs. Vda. de Segarra, et al, L-48257, Aug. 24, 1984).
Under t hese revised Rules, appeals from a decision
of the Regional Trial Court rendered in the exercise of its
appellat e jur isd ict io n shall be bro ught to the Court of
Appeals regardless of the issues involved. Thus, Sec. 2
of Rule 42 requir es t hat in such appea l the pet it ion for
review to the Court of Appeals must set forth, inter alia,
"the specificat ion of the errors of fact or law, or both,
allegedly commit t ed by the Regional Trial Court."

6. Wit h respect to the syst em of amicably sett ling


disput es at the barangay level and which, in proper cases,
is a pr er equis it e for the inst it ut io n of an action in court
under P.D. 1508, generally referred to as the Kataru-
ngang Pambarangay decr ee, see not es UNDER Sec. 1,
Rule 123. Sec. 2 of said P.D. 1508 provided for the cases
wit hin the jur isdict io n of t he lupon, while Sec. 3 thereof
d e t e r m i n e d the ve nu e of the p r o c e e di ng s , i.e., t he
barangay wher e the pr o ceedings sha ll be co nduct ed
(Agbayani vs. Belen, et al, G.R. No. 65629, Nov. 24, 1986).
See, however, the corresponding provisions of the Local
G o v e r n m e n t Code of 1991 (R.A. 7160) r e p r o d u c e d
t her eunder.
7. Excepted from the uniform procedure as st at ed
in this Rule are the cases covered by the Rule on Sum-

131
RUL E 5 R E M E D I A L LA W C O M P E N D I U M SE C . 2

mar y Procedure promulgat ed by the Supreme Court for


inferior courts effective August 1, 1983, and last revised
wit heffectivity on November 15, 1991, which wit h respect to
civil cases provides as follows:
"P ur suant to Section 36 of the Judic iar y Reorga•
nizat ion Act of 1980 ( B . P . Blg. 129) and to achieve
an expedit ious and inexpensive det er minat io n of the
cases referred to herein, the Court Resolved to pro•
mu lgat e the following Revised Rule on S u mma r y
Procedure:
I.
Applicabilit y
SECTION 1. Scope. — This rule shall govern t he
summar y procedure in the Met ropolit an Trial Court s,
the Municipal Trial Court s in Cit ies, the Municipa l
Trial Courts, and the Municipal Circuit Trial Court s
in the following cases falling wit hin t heir jurisdict ion:
A. Civil Cases:
(1) All case s of forcible e nt r y an d u n la w fu l
det ainer irrespect ive of the a mo unt of damages or
unpaid r ent als sought to be recovered. Where attor•
ney's fees are awarded, the same shall not exceed
t went y t ho usand pesos (1*20,000.00).
(2) All ot her civil cases, except probat e proceed•
ings, where the total amo unt of the p la int iffs claim
does not exceed t en t ho usan d pesos (F10.000.00),
exclusive of int er est and costs.
X X X

II.
Civil Cases
SEC. 3. Pleadings. —
A. Pleadings allowed. — The only p le ad in g s
allowed to be filed are the co mplaint s, compulsory

132
RUL E 5 U N I F O R M P R O C E D U R E I N TRI AL C O U R T S SE C . 2

count erclaims and cross-claims pleaded in the answer,


and the answer s t heret o.
B. Verification. — All pleadings shall be verified.
SEC. 4. Duty of court. — After the court deter•
mines t hat the case falls under summar y procedure, i
t may, from an e xa m i n a t io n of the a l le gat io n s
t herein and such evidence as may be attached t hereto,
d is m is s the case o ut r ig h t on any of the gr o unds
appar en t t herefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forth•
wit h issu e s u m mo n s which sha l l st at e t hat the
su mmar y procedure under this Rule shall apply.
SEC. 5. Answer. — Wit hin ten (10) days from
ser vice of s u m mo ns , t he defe nda nt shall file his
answer to the co mplaint and serve a copy thereof on
the plaintiff. Affirmat ive and negat ive defenses not
pleaded t her ein shall be deemed waived, except for
lack of jur isdict io n over the subject mat t er. Cross-
claims and compulsory count erclaims not assert ed in
the answer shall be considered barred. The answer
to count er cla ims or cross-claims shall be filed and
served wit hin ten (10) days from service of the answer
in which they are pleaded.
SEC. 6. Effect of failure to answer. — Should the
defendant fail to answer the complaint wit hin the
period above provided, the court, motu proprio, or on
motion of the plaintiff, shall r ender judgment as may
be war r ant ed by the facts alleged in the complaint
and limit ed to what is prayed for t herein: Provided,
however, t hat the court may in its discretion reduce
the amount of damages and attorney' s fees claimed
for being excessive or otherwise unconscionable. This
is w it hout prejudice to the applicabilit y of Section 4,
Rule 18 of the Rules of Court, if t here are two or more
defendant s.

133
RUL E 5 R E M E D I A L LA W C O M P E N D I U M SE C . 2

SEC. 7. Preliminary conference; appearance of


parties. — Not later t han t hirt y (30) days after the
last answer is filed, a preliminar y conference shall be
held. The rules on pre-trial in ordinar y cases shall
be applicable to the preliminar y conference unless
inconsist ent with the provisions of t his Rule.
The failure of the plaint iff to appear in the pre•
liminar y conference shall be a cause for the dismissal
of his complaint . The defendant who appear s in the
absence of the plaint iff shall be ent it led to judgment
on his count er cla im in accordance wit h Sect ion 6
hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plain•
tiff shall be ent it led to judgment in accordance wit h
Section 6 hereof. This Rule shall not apply where
one of two or more defendant s sued under a common
cause of action who had pleaded a common defense
shall appear at the preliminar y conference.
SEC. 8. Record of preliminary conference. —
Wit hin five (5) days after the t er minat io n of the pre•
liminar y conference, t he court shall issue an order
st at ing the mat t er s t aken up t herein, including but
not limited to:
(a) Whet her the part ies have arrived at an ami•
cable sett lement , and if so, the t er ms thereof;
(b) The st ipulat io ns or admissions ent er ed into
by the part ies;
(c) Whet her, on the basis of the pleadings and
the st ipulat io ns and admissions made by the part ies,
j u d g m e n t ma y be r e nd e r e d w it ho u t the need of
fur t her pro ceedings, in which event t he judg me n t
sha l l be r e n d e r e d w it h in t h ir t y (30) day s from
issuance of the order;
(d) A clear specificat ion of mat er ia l facts which
remain cont rovert ed; and

134
RUL E 5 U N I F O R M P R O C E D U R E I N T RI AL C O U R T S

(e) Such ot her mat t er s int ended to expedit e the


disposit ion of the case.
SEC. 9. Submission of affidavits and position
papers. — Wit hin ten (10) days from receipt of the
order ment io ned in the next preceding section, the
part ies shall submit t he affidavits of t heir wit nesses
and ot her evidence on the factual issues defined in
the order, t oget her wit h t heir position papers set t ing
forth the law and t he facts relied upon by t hem.
SEC. 10. Rendition of judgment. — Wit hi n
t hirt y (30) days aft er receipt of the last affidavits and
posit ion paper s, or the expirat ion of the period for
filing the same, the court shall render judgment .
However, should the court find it necessar y to
clarify cert ain mat er ia l facts, it may, during the said
period, issue an order specifying the m at t er s to be
clarified, and require t he part ies to submit affidavits
or ot her evidence on t he said mat t er s wit hin ten (10)
days from receipt of said order. Judgment shall be
r ender ed wit hin fifteen (15) days after the receipt of
the last clarificatory affidavits, or the expirat ion of
the per iod for filing the same.
The court shall not resort to clar ificatory pro•
cedure to gain t ime for the rendit ion of the judgment .
X X X

IV.
Common Provisions
SEC. 18. Referral to Lupon. — Cases r equir ing
referral to the Lupon for conciliation under the pro•
visions of Pr esident ia l Decree No. 1508 where t here
is no showing of compliance wit h such requirement ,
shall be dis missed w it hout prejudice, and may be
r evived only aft er such r e q u i r e m e n t sha ll have
been complied wit h, x x x.

135
RUL E 6 REMEDIA L LA W C O M P E N D I U M SE C . 2

SEC. 19. Prohibited pleadings and motions. —


The following pleadings, motions, or pet itions shall
not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint x x x except
on the ground of lack of jur isdict ion over the subject
matt er, or failure to comply with the preceding section;
(b) Motion for a bill of part icular s;
(c) Motion for new t rial, or for reconsiderat ion of
a judgment , or for reopening of trial;
(d) Pet it ion for relief from judg ment ;
(e) Motion for extension of t ime to file pleadings,
affidavits or any other paper;
( 0 Memoranda;
(g) Pet it io n for cert iorar i, ma nd a mu s , or pro•
hibit ion against any int er locut ory order issued by
the court;
(h) Motion to declare t he defendant in default;
(i) Dilatory mot ions for post ponement ;
0 ) Reply;
(k) Third-part y co mplaint s;
(1) I nt er vent io ns.
SEC. 20 . Affidavits. — The affidavits requir ed
to be submit t ed under t his Rule shall st ate only facts
of direct perso nal knowledge of the affiants which are
a d m i s s i b l e i n e v id e nc e , an d sha l l sho w t he i r
compet ence to testify to the mat t er s st at ed t herein.
A violat ion of t his r equir ement may subject the
part y or the counsel who submit s the same to dis•
ciplinar y act ion, and shall be cause to expunge the
inad miss ible affidavit or port ion t hereof from the
record.
SEC. 21 . Appeal. — The judg ment or final order
shall be appealable to the appropr iat e regional t rial
court which shall decide the same in accordance wit h
Section 22 of Bat as P amba nsa Blg. 129. The decision
of the regional t rial court in civil cases governed by
t hi s Rule, inc lud ing forcible ent r y and unlaw fu l

136
RUL E 5 U N I F O R M P R O C E D U R E I N T RI AL C O U R T S SE C . 2

det ainer , shall be immediat ely executory, wit ho ut


pr ejudice to a fur t her appeal t hat may be t ake n
t herefrom. Sect ion 10 of Rule 70 shall be deemed
repealed.
SEC. 22 . Applicability of the regular rules. —
The r egula r procedur e prescr ibed in t he Rules of
Court shall apply to the special cases herein provided
for in a suppletory capacit y insofar as they are not
inco nsist ent herew it h.
SEC. 23 . Effectivity. — This revised Rule on
S u m ma r y P ro cedur e shall be effective on Novem•
ber 15, 1991."

8. New court rules apply to pending cases only


with reference to proceedings t herein which t ake place
after the dat e of t heir effectivity. They do not apply to
the ext ent t hat in the opinion of the court t heir applica• tion
would not be feasible or would work injust ice, in which
event t he former pro cedur e shall apply. T hus, where the
applicat ion of the Rule on S ummar y Procedure will mean
the dismissal of the appeal of the part y, the same should
not apply since, after all, the procedure they availed of was
also allowed UNDE R the Rules of Court (Laguio, et al. vs.
Garnet, et al., G.R. No. 74903, Mar. 21, 1989).

9. While Sec. 6 (now, Sec. 7) of the Rule on Sum•


mar y P r o c e d u r e ma k e s a p r e l i m i n a r y co nfe r e nc e
mandat ory, it does not logically follow that the absence
thereof would necessarily render nugatory the proceedings
had in the court below. A preliminar y conference under
this Rule is akin and similar to a pre-trial under Rule 20,
both provisions being essent ially designed to promot e
amicable set t lement or to simplify t he t rial. Proceedings
conducted wit hout pre-trial or a legally defective pre-tria l
have been voided because eit her of the part ies t heret o
suffered subst ant ial prejudice t hereby or were denied due
process. Thus, unless t here is a showing of subst ant ia l

137
RUL E S R E M E D I A L LA W C O M P E N D I U M

prejudice caused to a part y, the inad ve r t ent failure to


ca le nd a r for an d co nduct a pr e - t r ia l or pr e l i m i n a r y
conference cannot render the proceedings illegal or void
ab initio. A part y' s failure to object to the absence of a
preliminar y conference, despit e opport unit y to do so, is
deemed a waiver of the r ight t her et o, especially where
the part y had already submit t ed to the jur isd ict io n of
the t rial court (Martinez, et al. vs. De la Merced, et al.,
G.R. No. 82039, June 20, 1989).
10. E xcep t in cases co ver ed by the a g r i c u lt u r a l
t e na nc y laws o r whe n the law o t he r wi s e e xpr e s s l y
pr o vides, all act io ns for forcible e nt r y an d unlaw f u l
det ainer, irrespect ive of the amount of damages or unpaid
r ent als sought to be recovered, are now governed by t he
su mmar y procedure provided in revised Rule 70.

138
PRO CEDUR E IN REGIONAL TRIAL COURTS

RULE 6

K IND S OF PLE AD IN G S

S ec t i o n 1. Pleadings defined. — Ple ad i n g s are the


w ri t t e n s t a t e m e n t s o f the r e s p e c t i v e c l a i m s an d
d e f en se s o f the p a rt i e s s u b m i t t e d t o the Cou rt for
ap p rop ri a t e j u d g m e n t , (la )

Sec . 2. Pleadings allowed. — The clai ms of a party


ar e a s s e rt e d in a c o m p l a i n t , c o u n t erc l a i m , cros s -
claim , thir d (fou rth , e t c.) -p a rt y c o mp la i n t o r
c o m p l a i n t - i n - i n t e rv e n t i o n .
The d e fen s e s of a party are al leged in the an swe r
to the p l e a d i n g a s s e rt i n g a clai m agai n s t him.
An a n s w e r ma y be re s p o n d e d to by a rep ly, (n)

NOTE

1. In a broad sense, the term "pleadings" includes


all papers filed, excluding evident iar y m at t er s, from the
complaint down to the judgment . Document s att ached to
the pleadings and made a par t t hereof are considered
evidence and also par t of the pleadings (Asia Banking
Corporation vs. Olsen & Co., 48 Phil. 529). A bill of
p a r t ic u l a r s c o n s t it u t e s par t of the p lead in g t hat i t
supple ment s (Sec. 6, Rule 12). A covering let t er for a
pleading is not par t of the lat t er (Clorox Co. vs. Director
of Patents, L-19531, Aug. 10, 1967).

Sec. 3 . Complaint. — The c o m p l a i n t i s the p lead i n


g a l l egi n g the p l a i n t i f f s cau s e o r c au se s o f act ion. The
n ame s an d re s i d e n c e s of the plainti ff and
d efen d an t mus t be stated in the comp lain t. (3a)

139
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 4- 5

NOTES

1. The provisions of t his sect ion wit h regard to a


complaint are also true with and are applicable to other
init iat ory pleadings, as well as to petit ions filed in the
trial or appellat e courts, except t hat, in the lat t er case, it
is the act of the lower court which is complained of t hat
has to be alleged, inst ead of a cause of action as technically
underst ood.
2. The jurisdict ion of the court and the nat ure of the
action are det er mined by the aver ment s in the complaint .
The prayer for relief is not controlling on the court and
is merely advisory as to the nat ur e of the action, as it is
the a ver me nt s in the complaint which control. See notes
under Sec. 2, Rule 7.

Sec . 4. Answer. — An a n s w e r is a p l e a d i n g in
wh i c h a d e f e n d i n g p art y set s forth hi s d e f e n s e s .
(4a)

Sec. 5 . Defenses. — D e f e n s e s ma y e i t h e r be
n eg at i v e or affi rmat ive.
(a) A n egat i v e d e fen s e i s the sp eci fi c d en i a l of
the mat e ri a l fact or fact s al lege d in the p l e a d i n g of
the c l a i m a n t e s s e n t i a l t o hi s cau s e o r c a u s e s o f
action .
(b) An affi rmati ve d ef en s e is an al l egat i o n of a
ne w mat t e r wh i ch , whi l e h yp o t h e t i ca l l y a d m i t t i n g
the m a t e r i a l a l l e g a t i o n s i n the p l e a d i n g o f the
c l a i m a n t , w o u l d n e v e r t h e l e s s p r e v e n t o r ba r
re co ve r y by him. The affi rmat ive d ef en se s i n c lu d e
f rau d , s t a t u t e o f l i m i t a t i o n s , r e l e a s e , p a y m e n t ,
i l l e g a l i t y , s t a t u t e o f fra u d s , e s t o p p e l , forme r
re co ve ry , d i s c h a rg e i n b an k ru p t cy , and an y oth e r
mat t e r by wa y of c o n f e s s i o n an d a v oi d a n c e . (5a)

140
RUL E 6 KIND S O F PLE ADIN G S E C S . 4- 5

NOTE S

1. Section 5(a) defines a "negat ive defense" as the


specific denial of the mat er ial allegat ions in the complaint.
A denial is not specific jus t because it is so qualified
(Agton vs. CA, et al., L-37309, Mar. 30, 1982), and t his is
especially t rue where a bla nket denial is made of all the
aver ment s of the complaint inst ead of dealing part icular ly
witheach. Such a ge ner a l denia l will be deemed an
admission of t he a ver me nt s in the complaint .

2. To be considered a specific denial, Rule 8 provides:


"Sec. 10. Specific denial. — The defendant must
specify each mat er ia l allegat ion of fact the t r ut h of
which he does not admit and, whenever pract icable,
shall set forth the subst ance of the mat t er s upon
which he r elies to suppo r t his d e nia l. Wher e a
defendant desires to deny only a part of an aver ment ,
he shall specify so much of it as is true and mat er ial
an d s ha l l den y o nly the r e m a i n d e r . Wher e a
d e fe nd a n t i s w it ho u t kno wledge or in fo r mat io n
sufficient to form a belief as to the t rut h of a mat er ial
aver ment made in t he co mplaint , he shall so st at e,
and t his shall have the effect of a denial."
3. Sec. 5(b) defines and illust rat es the so-called
affirmative defenses. The enumer at io n is not exclusive.
Thus, tea judicata (Fernandez vs. De Castro, 48 Phil. 123),
ultra Mroa aoto of a oorporation, or lack of aut hor it y of a
person assuming to act for the corporation (Ramirez vs.
Orientalist Co., 38 Phil. 634), laches (Gov't of the P.I. vs.
Wagner, et al., 49 Phil. 944), and unc o nst it ut io na l it y
(Santiago vs. Far Eastern Broadcasting Co., 73 Phil. 408)
are affir mat ive defenses which should be specifically
pleaded. Fur t her mo r e, if no motion to dismiss had been
filed, any of the gr o und s t herefor may be r aised as
affirmative defenses in the answer (Sec. 6, Rule 16).

141
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 6- 7

Sec . 6. Counterclaim. — A c o u n t e rc l a i m is an y
clai m wh i c h a d e f e n d i n g party ma y hav e ag ai n s t
an op p osi n g party. (6a)

Sec . 7. Compulsory counterclaim.—A co mp u l so r y


c o u n t e rc l a i m i s on e wh i ch , b ein g cogn i zab l e by the
r e g u l a r c o u r t s o f j u s t i c e , a r i s e s ^ o u t ofj o r i s
c o n n e c t e d wi t h the t r a n s a c t i o n o r o c c u r r e n c e
c o n s t i t u t i n g the su b j e c t mat t e r o f the o p p o s i n g
p a rt y ' s c l a i m an d d o e s no t r e q u i r e fo r it s
ad j u d i c at i o n the p re se n c e o f t hi rd p art i e s o f wh o m
the Co u rt c a n n o t a c q u i r e j u r i s d i c t i o n . S u c h a
c o u n t e rc l a i m mus t b e wi t h i n the j u ri sd i ct i on o f the
Cou rt both as to the amou n t and the n at u r e thereof,
e x c e p t t h a t i n a n o r i g i n a l a c t i o n b e f o r e the
R e g i o n a l Tri al Cou rt , the c o u n t e r c l a i m ma y b e
con si d e re d c o mp u l s o r y rega rd le ss of the amou nt , (n)

NO TES

1. In Amer ican law from which we have derived t he


concept of a count erclaim, it is considered as in effect a
new suit in which the part y named as the defendant is
t he plaint iff and the plaint iff beco mes the defe nda nt
(Roberts Min. & Mill Co. vs. Schroder, CCA. Nev., 95 F.
2d 522). It is but anot her name for a cross-pet it ion (Clark
vs. Duncanson, 79 Okl. 180, 192 P. 806, 16 A.L.R. 450) or
is a subst it ut e for a cross-bill in equit y (Vidal vs. South
American Securities Co., CCA. N.Y., 276 F. 855). The
t erm is broader in meaning t ha n set-off or recoupment ,
and includes t hem both (Williams vs. Williams, 192 N.C.
405, 135 S.E. 39; Aetna Life Insurance Co. vs. Griffin,
200 N.C 251, 156 S.E. 515).

2. . A clar i fic at io n ha s been inco r po r a t e d in


the definit io n of a compulsor y co unt er cla i m by r easo n
of d iver ge nt views in t he pas t as to w het he r or not
the amount involved in t he count ercla im should be t aken
into
142
RUL E 6 KIND S O F PLE ADIN G S S E C S . 6- 7

account when such a count erclaim is pleaded in the Re•


gional Trial Court, in t he same manner as the rule on
ju r is d ict io na l a mo u n t r equir e d for a co mp la int filed
t herein. The pr ese n t for mulat io n make s i t clear t hat
such a count erclaim may be ent ert ained by the Regional
Trial Court regardless of the amount involved provided
that, in addit ion to the other r equir eme nt s, it is cognizable
by the r egular court s of just ice. Thus, for inst ance, a
claim ar is ing from a labor disput e, alt hough wit hin t he
jur isdict ional a mo unt provided for Regional Trial Court s,
may not be raised as a count erclaim t her ein as, under the
law present ly in force, the same should be filed in the labor
t ribunals or agencies. The same is t rue wit h respect to
other claims jur isdict io n over which is vested exclusively
in the quasi- judicial agencies.

3. . As t hu s clarified, count erclaims are classified


and dist inguished as follows:
A compulsory co unt er claim is one which arises out
of or is necessar ily connect ed wit h the t r ansact io n or
occurrence t hat is the su bje ct - mat t er of t he opposing
part y' s claim. If it is wit hin the jur isdict ion of a regular
court of just ice and it does not requir e for its adjudi•
cation the presence of t hird part ies over whom the court
cannot acquire jur isdict ion, it is barred if not set up in
the action (see Sec. 2, Rule 9). This is also known as a
"recoupment " (Lopez us. Glories 40 Phil, 26).
A permissive count erclaim does not arise out of nor
is it necessarily connected wit h the subje ct -mat t er of the
opposing part y' s claim. It is not barred even if not set up
in the act ion. This is also known as a "set-off (Lopez vs.
Gloria, supra).
4. Accordingly, even if the count erclaim arises out
of the subject - mat t er of the opposing part y' s claim but
it is not wit hin the jur isdict ion of the regular courts of
just ice, or it requires for its adjudicat ion the presence of
t hir d p a r t i e s over who m the Court canno t acqu ir e

143
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 6- 7

jur isdict ion, it is considered as only a permissive counter •


claim and is not barred even if not set up in the act ion
(see also Sec. 2, Rule 9).
5. A count erclaim is, t herefore, compulsory if (a) it
arises out of, or is necessarily connected wit h, t he t rans •
action or occurrence which is the subje ct - mat t er of the
opposing part y' s claim; (b) it does not r equ ir e for its
adjudicat ion the presence of t hird part ies of whom the
court cannot acquire jurisdict ion; and (c) subject to the
qualificat ion on the jur isdict io nal a mo unt wit h regard to
co unt er cla ims raised in the Regional Trial Court s, the
court has jur isd ict io n to ent ert ain the claim. While a
number of crit eria have been advanced for the det er mi•
nat io n of w het he r t he co unt er cla i m is co mpulso r y or
per miss ive, the "one compelling t est of co mpulsor iness "
is the logical relat io nship bet ween t he claim alleged in
the complaint and t hat in the count erclaim, i.e., where
separ at e trials of each of t he respect ive claims would
involve a s u bs t a nt ia l duplicat io n of effort or t ime by
the part ies and the court s, as where t hey involve many
of t he same factual and/or legal issues (Quintanilla vs.
CA, et al., G.R. No. 101747, Sept. 24, 1997).
In Alday vs. FGU Insurance Corp. (G.R. No. 138822,
Jan . 23 , 2001), the S upr eme Court r eit er at ed the cr it er ia
in det er mining whet her a count erclaim is compulsory or
per miss ive, t hat is, whet her or not (I) the issues of fact
an d law r a is e d b y the c la i m an d c o u n t e r c l a i m ar e
essent ially t he same, (2) res judicata would bar a sub•
sequent suit or defendant ' s claim absent the compulsory
co unt er cla im rule, (3) subst ant ia l l y the same evidence
suppo r t or refut e the claim and the co unt er cla i m, or
(4) t here is a logical relat ion bet ween the claim and t he
co unt er cla im (cit ing Valencia vs. CA, et al. [263 SCRA
275J). See also Tan vs. Kaakbay Finance Corp., et al.,
G.R. No. 146595, June 20, 2003, and cases discussed
t herein.

144
RUL E 6 KIND S O F PLE ADIN G S S E C S . 6- 7

6. An aft er-acquired counterclaim is not barred, even


if t he same ar ises out of or is necessar ily connected wit h
the claim alleged in the complaint in t he previous case
but was not set up t herein, since Sec. 8 of Rule 11 provides
t hat a compulsory count erclaim "t hat a defending part y
has at the time he files his answer shall be cont ained
t herein" (Tiu Po vs. Bautista, G.R. No. 55514, Mar. 17,
1981).

7. . Where t he co unt ercla im, and t he same is


t rue with a cross-claim, was already in existence at the
time the defendant filed his answer but was not set up
t herein t hrough oversight , inad ver t enc e, or excusable
neglect, or when just ice so requir es, the same may be
set up by filing an a mended answer (Sec. 10, Rule 11).
Where said count erclaim or cross-claim mat ur ed after the
filing of the answer, t he defending part y can set it up
by filing a supple me nt al answe r or pleading (Sec. 9,
Rule 11). In eit her case, leave of court is required and
such pleadings must be filed before the rendit ion of the
judgment .

8. . A c o u nt e r c l a i m or cr o ss- c la i m nee d not


be answered if it is based on and inseparable from t he
very defense raised by t he opposing par t y as it will
merely r esult in said opposing part y plead ing the
same facts already raised in his former pleading
(Navarro vs. Bello, 102 Phil. 1019) or where the
count erclaim merely alleges the opposite of the facts in
the complaint (Ballecer vs. Bernardo, L-21766, Sept. 30,
1966). Thus, where t he count erclaims are only for
damages and attorney' s fees arising from the filing of the
complaint, the same shall be considered as special
defenses and need not be answered (see Worcester vs.
Lorenzana, 104 Phil. 234).

9. A plaint iff who chooses not to answer a compul•


sory count erclaim cannot be declared in default on such
count erclaim. Where t he complaint is for consolidat ion
because the period for redempt ion had expired and the
145
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 9 -1 0

count erclaim is for reformat ion on the ground t hat the


d o c u me n t wa s r eally a mo r t g ag e , the i n c o ns i s t e n t
allegat ions in the complaint st and as an answer to the
count erclaim (Gojo vs. Goyola, L-26768, Oct. 30, 1970).
10. A count erclaim or cross-claim must be answered
wit hin 10 days from service (Sec. 4, Rule 11). Where the
part y is in default on said count erclaim or cross-claim,
the court may render judgme nt grant ing such relief as
the pleading may w a r r a n t or r equir e t he cla i ma nt to
submit evidence (Sec. 3, Rule 9).

11. . Alt hough the Government is generally


immune from suit, if it files an act ion against a pr ivat e
part y, it surr ender s its privileged posit ion and the
defendant may validly file a count ercla im ag a inst it
(Froilan vs. Pan Oriental Shipping Co., 95 Phil. 905).
12. It is not proper to allow a count erclaim to be filed
against a lawyer who has filed a complaint for his client
and is merely his r epr esent at ive in court, not a plaint iff
or complainant in the case, since such a procedure would
result in mischievous consequences. A lawyer owes his
client ent ire devotion to his genuine int erest , war m zeal
in the ma int e na nce and defense of his r ight s, and the
exert ion of his ut most lear ning and abilit y. He cannot
properly at t end to his dut ies if, in the same case, he is
kept busy defending himself. Where the lawyer acts in
the nam e of a client , t he court should not per mi t his
being impleaded as an addit ional part y defendant in t he
co unt er cla im in the very same case where he is act ing
only as a counsel. Any claim for alleged da mages or ot her
causes of act ion against him should be filed in an ent irely
s e p a r a t e an d d is t inc t civil act io n (Chavez, etc. vs.
Sandiganbayan, et al., G.R. No. 91391, Jan. 24, 1991).

Sec . 8. Cross-claim. — A cro s s- c la i m is an y clai m


by on e p art y agai n s t a co -p arty ari s i n g ou t of the

146
RUL E 6 KIND S O F PL E ADIN G S S E C S . 9 -1 0

t ran s act i o n or o c c u rre n c e that i s the su bj ect matt e r


ei t h e r of the ori gi n a l act i o n or of a c o u n t e rc l a i m
t h erei n . Su c h c ro s s- c la i m ma y i n clu d e a clai m that
the p art y agai n s t wh o m i t i s assert e d i s or ma y be
liab le to the c ro s s- c la i man t for all or part of a clai m
asse rt e d i n the act i o n agai n s t the cro s s- c l ai m an t .
(7)

NOTES

1. A cross-claim differs from a counterclaim in t hat


the former is filed against a co-party and a cross-claim
always ar ises out of the t ransact ion or occurrence t hat is
the su bject - mat t er eit her of the original action or of a
count erclaim t herein. A cross-claim which is not set up
in t he act io n is bar r ed, except when i t is out side the
jur isdict io n of the court or if t he court cannot acquire
jur isdict ion over t hird part ies whose presence is necessary
for the adjudicat ion of said cross-claim (Sec. 8 of this Rule;
Sec. 2, Rule 9). The lat t er case is what some wr it ers call
a permissive cross-claim.
2. The dismissal of the complaint carr ies with it the
dismissal of a cross-claim which is purely defensive, but
not a cross-claim seeking affir mat ive relief (Torres, et al.
vs. CA, et al., L-25889, Jan. 12, 1973).

Sec . 9. Counter-counterclaims and counter-cross-


claims. — A c ou n t e rc l a i m ma y be assert ed agai n s t
an ori gi n a l c o u n t e r - c l a i m a n t .
A c r o s s - c l a i m ma y als o b e fi led ag a i n s t a n
ori gin al cro s s- c la i man t , (n)

Sec. 10. Reply. — A reply is a p l ea d i n g , the office


or funetien of which is to deny , or a llege facts in
de nia l or avoidance of new m a tt e r s al leg e d by wa y
of defense in the answer and t h e r e b y join or mak e
issue as te aueh new mat ter s . If a party doe s not

147
RUL E 6 R E M E D I A L LA W C O M P E N D I U M S E C S . 9 -1 0

file suc h reply, all the ne w mat t er s al le ge d in the


an sw e r are d e e m e d con t rove rt ed , '-h ^p P
I f the p laint i ff wi sh e s to i n t e rp o s e an y clai ms
a ri s i n g ou t o f the ne w m a t t e r s s o a l l e g e d , su c h
c l a i m s s h a l l b e se t fo rt h i n a n a m e n d e d o r
s u p p l e m e n t a l comp lai n t . (11)

NOTES

1. The primar y purpose of the reply is to join issues


wit h new mat t er s raised in the answer and t hereby au•
t horize the pleader of the reply to introduce evidence on
said new issues.
2. . The filing of t he reply is opt io nal as t he
new mat t er s raised in the answer are deemed
co nt ro vert ed even wit hout a reply. Where t he part y
desires to file a reply, he must nevert heless do so
wit hin 10 days from service of the pleading responded
to (Sec. 6, Rule 11).

3. . As t hen formulat ed, it was believed t hat in


the following inst ances, t he filing of a reply was
compulsory and must be filed wit hin t he said 10-day
period:
(a) Where the answer alleges the defense of usury
in which case a reply under oat h is required, ot herwise
the allegat io ns of usur y are deemed admit t ed (Sec. 11,
Rule 8); and
(b) Wher e the answe r i s based on an actio nable
do cument in which case a verified reply is necessar y,
ot her w ise the g e nu ine ne s s and due e xecut io n of said
act io na ble do cu me n t are gener a ll y dee med ad m it t e d
(Sec. 8, Rule 8).
Wit h respect to par. (a) on usury, the view t hat all
allegat io ns of usur y had to be denied specifically and
under oat h was engendered by the fact t hat the former
Sec. 1 of Rule 9, in mak in g t he r equ ir e me n t for such
148
sworn denial under pain of admission of the allegat ions

149
RUL E 6 KIND S O F P LE ADIN G S S E C S . 9 -1 0

on usury, did not make any dist inct ion as to the pleadings
involved. However, in Liam Law vs. Olympic Sawmill,
et al. (L-30771, May 26, 1984), it was held that pur suant to
Sec. 9 of the Usur y Law, the first abovecited inst ance
requir ing denial of allegat ions of usury under oat h does
not apply to a case where it is the defendant , not the
plaintiff, who is alleging usur y.
Accordingly, Sec. 11 of Rule 8 now expresses t hat
specific r equir eme nt and provides t hat "(a)llegat ions of
usur y in a co mplaint to recover usur ious int er est are
deemed admit t ed if not denied under oat h." Hence, if the
a l le g at io n of usur y i s c o nt a i ne d in the d e fe nd a nt ' s
answer, for inst ance, by way of defense to a complaint
for a sum of money, it is not necessary for plaint iff to file
a reply t her et o in order to deny t hat allegat ion under
oath.
It is believed, however, t hat if such allegat ion was
made by the defendant in a counterclaim in t hat action,
it would be necessary for plaintiff, in order to controvert
the same, to make a specific denia l under oat h in the
answer to such count erclaim since the latter, after all, is
in the nat ur e of a count er-compla int of the defendant .
In fact, under Sec. 1, Rule 3, the t erm "plaint iff may refer
to the claiming part y, the count er-claimant , the cross-
claimant, or the t hird (fourth, etc.) party-plaint iff.
The dist inct ion here proposed is due to the fact t hat
a co unt er cla i m invo lves a cause of act ion and seeks
affir mat ive relief, while a defense merely defeat s the
plaint iffs cause of act ion by a denial or confession and
avoidance, and does not admit of affirmative relief to the
defendant (Lovett vs. Lovett, 93 Fla. 611, 112 So. 768;
Secor vs. Silver, 165 Iowa 673, 146 N.W. 845).
4. Where the case is submit t ed on the pleadings, the
failure of the part y to make a reply does not mean t hat
he is deemed to have controverted the issues raised in
the answer, as this is an exception to the rule (Falcasantos

150
RUL E 6 R E M E D I A L LA W C O M P E N D I U M SE C . 11

vs. How Suy Ching, 91 Phil. 456).


5. A part y cannot, in his reply, amend his cause of
act ion (Calvo vs. Roldan, 76 Phil. 445) nor int roduce
t her e in new or addit ional causes of act ion (Anaya vs.
Palaroan, L-27930, Nov. 26, 1970).

Sec. 11. Third, (fourth, etc.) - part y complaint . —


A th i rd (fourth, etc.) - party c o m p l a i n t is a clai m
that a d e f e n d i n g party may, wit h leav e of cou rt , file
agai n s t a p erso n not a part y to the act i on , called
the t h i r d ( f o u rt h , et c. ) - p art y d e f e n d a n t , for
con t ri b u t i o n , i n d e mn i t y , su b ro gat i o n o r an y oth e r
relief, in resp ec t of hi s op p on en t ' s clai m. (12a)
- .. ---- ' •• J.'.y ... wj - -
NO TES

1. A t hird-part y complaint is similar to a cross-claim


in t hat the t hir d - par t y plaint iff seeks to recover from
ano t he r person some relief in respect to the opposing
part y' s claim, but it differs t herefrom in t hat in a cross-
claim, the t hird part y is alr eady impleaded in the act io n
while in a t hir d- part y complaint , said t hird part y is not
yet impleaded. Consequent ly,- in the filing of a t hir d-
part y complaint , leave of court is requir ed as t her eaft er,
if grant ed, summo ns will have to be served on the t hird-
part y defendant .

2. A t hir d -part y complaint need not arise out of or


be ent irely dependent on the main act ion as i t suffices
t hat the former be only "in respect of the claim of the t hir d -
part y pla int iffs opponent . Consequent ly, the judg• ment on
a t hir d - part y complaint may become final and executory
wit hout wait ing for the final det er minat io n of the main
case (Pascual vs. Bautista, L 21644, May 29, 1970).

3. A t hir d -part y complaint is similar to a complaint


in int er vent io n (Rule 19) in t hat both result in br inging

150
RUL E 6 KIND S O F P LE ADIN G S SE C . 11

into the act ion a t hird person who was not originally a
part y; but they differ in t hat the init iat ive in a t hird-part y
complaint is wit h the person already a part y to the act ion,
while in int er vent io n the init iat ive is wit h a non-part y
who seek s to join the act io n. The de fe nd a n t i s not
compelled to bring t hird part ies into the lit igat ion as the
rule simply per mit s the inclusion of anyone who meets
the st andard set forth therein, in order to avoid multiplicit y
of suit s (see Balbastro, et al. vs. CA, et al., L-33255
Nov. 29, 1972).

4. . The t est s to det ermine whet her the t hird-


part y complaint is in respect of plaint iff s claim are:
"a. Where it arises out of the same t ransact io n on
which the p la int iffs claim is based; or whet her the third-
part y claim, alt hough arising out of another or different
contract or t r ansact io n, is connected wit h the plaint iffs
claim;
b. Whet her the t hird-part y defendant would be liable
to the plaint iff or to the defendant for all or part of the
plaint iff's claim against the original defendant , alt hough
the t hird-part y defendant ' s liabilit y ar ises out of anot her
t ransact ion; and
c. Whet her the t hird-part y defendant may assert any
defenses which t he t hir d-part y plaint iff has or may have
to the pla int iffs claim" (see Capayas vs. CFI of Albay,
et al. 77 Phil 181).
Co nsequent ly, a defendant may file a t hir d -part y
complaint in the same capacit y in which he is being sued
in t he original co mplaint . A plaint iff may also file a third-
part y complaint but also in the same capacit y in which he
is sued under a count erclaim.
5. Where t he t rial court has jur isdict ion over the
main case, it also has jur isdict ion over the t hird-part y
complaint regardless of the amo unt involved as a third-
part y complaint is merely auxiliar y to and is a continua-

151
RUL E 6 R E M E D I A L LA W C O M P E N D I U M SE C . 11

tion of the main act ion (Republic vs. Central Surety &
Insurance Co., et al., L-27802, Oct. 26, 1968; Eastern
Assurance & Surety Corp. vs. Cui, et al., G.R. No. 54452,
July 20, 1981). For the same r easo n, wha t is det er•
minat ive of venue are the operat ive facts in the main case,
and not those alleged in the t hir d-part y complaint .

6. An order disallowing a t hird-part y complaint is


appealable (Dtr&ioo vei Malagat, L-2413, Aug. 10, 1967)
since it would finally dispose of de fe ndant ' s r ight to
implead the t hird part y.

7. Where a t hir d-part y defendant appealed to the


t hen Court of First Inst ance but the t hir d-part y plaint iff
(defendant ) did not appeal from the ju dg me nt against
him in favor of the plaintiff, such judg ment became exe•
cutory, wit hout prejudice to the t hir d-part y defendant ' s
appeal being given due course as it pert ains only to the
t hird-part y complaint (Firestone Tire & Rubber Co. vs.
Tempongko, L-24399, Mar. 28, 1969) and such judgme nt
on the t hir d - part y complaint is separ at e and severable
from t hat in t he main case.

8. . Where the trial court dismissed the


complaint and t he defendant s' t hird-party complaint and
only t he plaint iff appealed, the Court of Appeals, in
reversing t he judg ment dismissing plaint iffs complaint ,
cannot make a find ing of liabil it y on the p ar t of the t h i r d -
p a r t y defendant s since the defendant s, as t hird-part y
plaint iffs, did not appeal from the dismissal of t heir
t hir d - par t y co mp la in t an d the t h i r d - p a r t y d e fe nd a nt s
wer e not part ies in the case on appeal (Go, et al. vs.
CA, et al, L-25393, Oct. 30, 1980).
9. A t h ir d - par t y co mp la int cannot be filed in a
special civil act ion for declarat ory relief as no mat er ia l
relief is sought in t his act ion (Comm. of Customs, et al.
vs. Cloribel, et al, L-21036, June 30, 1977).

152
RUL E 6 KIND S O F PLE ADIN G S S E C S . 12 , 13

Sec . 12. Bringing new parties. — W h e n the


p re s en c e o f p a rt i e s ot h e r tha n th os e t o the ori gi n al
acti on i s req u i red for the gran t i n g of comp let e relief
in the d e t e r m i n a t i o n of a c o u n t e r c l a i m or cross -
claim, the Cou rt sh all ord er t h e m to be b rou gh t in
a s d e f e n d a n t s , i f j u r i s d i c t i o n ove r t h e m ca n b e
ob t ai n e d . (14)

NOTES

1. For pur poses of Sec. 12 of t his Rule, t he court


ma y a u t ho r i z e the filing of the pr o pe r t h i r d - p a r t y
complaint to implead the ot her part ies not included in
the original complaint (Rubio vs. Mariano, et al., L-30403,
Jan. 31, 1973).

2. . Even wher e t he imp lead ing of the t hir d -


par t y defendant s does not fall squarely wit hin t he
requisit es of Sec. 12, Rule 6 on t hird-part y complaint s,
their inclusion in the action may be per mit t ed where
t here is a quest ion of law or fact common to the right
in which t hey are int erest ed and anot her right sought to
be enforced in the action, hence t heir inclusion as proper
(now, necessary) par t ies is just ified U NDE R Sec. 6,
Rule 3 of t he Rules (Balbastro, et al. vs. CA, et al.,
supra).

Sec. 13. Answer to third (fourth, etc.) - party


complaint. — A th i rd (fou rth, etc.) - party d efe n d an t
ma y a l le g e i n hi s a n s w e r hi s d e f e n s e s , c ou n t e r •
clai ms or cro ss- c lai m s, i n c l u d i n g suc h d efen se s that
the t hi r d ( fou rt h, etc.) - party plaint iff ma y hav e
aga i n s t the o ri gi n a l p l a i n t i f f s claim. I n p rop e r
cases , he ma y als o ass e r t a c o u n t e rc l a i m agai n s t
the ori gi n al p lai nt i ff in resp ec t of the latter' s clai m
agai n s t the t h i rd - p art y plaintiff, (n)

153
RULE 7

PARTS OF A PLEADING

S ec t i o n 1. Caption. — The cap t i o n set s forth the


nam e o f the court, the title o f the act i on , and the d ocke
t n u mb e r i f ass i gn ed .
The ti t le o f the act i o n i n d i c at e s the n am e s o f the
p art i es . The y shall all be n ame d in the ori gi n a l
c o m p l a i n t o r p e t i t i o n ; bu t i n al l s u b s e q u e n t
p l e a d i n g s , i t shall be su ffi ci ent i f the nam e of the
fi rs t p a r t y o n e a c h s i d e b e s t a t e d w i t h a n
a p p r o p r i a t e i n d i c a t i o n w h e n t h e r e ar e o t h e r
p art i es.
Th ei r re s p e c t i v e p art i ci p at i o n i n the cas e shall
be i n d i cat ed , ( la , 2a)

NO TES

1. As revised, the capt ion of a pleading in civil cases


is no longer r equ ir e d to st at e the des ig nat io n of the
pleading, since the designat ion of the ple ading is prop•
erly cont ained in the body t hereof (Sec. 2) preceding the
allegat io ns. In criminal cases, i t is required t hat , when•
ever possible, t he complaint or informat ion should st at e
the designat ion of the offense or the sect ion or subsect ion
of t he st at ut e punishing it (see Sec. 8, Rule 110 and notes
t her eu nd er ) .

2. . I t i s not the capt io n of the p lead i n g bu t


the allegat ions t herein t hat det ermine the nat ure of the
action, and t he court shall gr an t t he relief w a r r a nt e d
by t he allegat ions and the proof even if no such relief is
prayed for (Ras vs. Sua, L-23302, Sept. 25, 1968).

3. The abbr eviat io n "et al." for et alii ("and others")


or et alius ("and anot her") is often affixed to the name of

154
RUL E 7 P AR T S OF A PLE ADIN G S SE C . 2

the person first mentioned, where there are more than


one party to the action on either side (see In re Mc-Govern's
Estate, 77 Mont. 182, 250 P. 812; Lyman vs. Milton, 44
Cal. 630).

Sec. 2. The body.—The body of the p lead i n g sets


forth its d e s i g n a t i on , the al l egat i on s of the party' s
claims or d efen ses, the relief p rayed for, and the date
of the p le ad i n g , (n)
(a) Paragraphs. — The al le gat i on s in the body
of a p l e a d i n g sh all be d i vi d e d into p a rag rap h s so
n u mb e re d as to be read i ly i d en t i fi ed , eac h of wh i c h
s h a l l c o n t a i n a s t a t e m e n t o f a s i n g l e se t o f
c i r c u m s t a n c e s s o far a s t h at ca n b e d on e wi t h
c o n v e n i en c e . A p a rag ra p h ma y be referred to by a
n u mb e r in all s u c c e e d i n g p l ea d i n gs . (3a)
(b) Headings. — Wh e n tw o or mor e c a u s e s of
acti on are j oi n ed , the s t at e m e n t of the first shall be
p refaced by the word s "first cau s e of acti on, " of the
secon d by " secon d cau s e of act ion," and so on for
the ot h ers .
Whe n on e o r mor e p a ra g ra p h s i n the an s w e r
are a d d re s s e d to on e of severa l cau se s of act i o n in
the c o mp l ai n t , the y shall be p refac ed by the word s
" an swer to the first cau s e of act i on " or " an swer to the
secon d cau s e of act i on " and so on; and wh e n one
or more p a rag rap h s of the an swe r are ad d re ss e d to
seve ra l ca u se s of act i on, the y shali be p refaced by
word s to that effect. (4)
(c) Relief. — The p lead i n g shall speci fy the reli ef
sou gh t , but i t ma y add a gen era l p rayer for su c h
fu rt h er or ot h e r re li e f as ma y be d e e me d jus t or
eq u i t ab le. (3a, R6).
(d) Date. — Every p lead i n g shall be d at ed, (n)
RUL E 7 R E M E D I A L LA W C O M P E N D I U M SE C . 3

NOT E S

1. The prayer in a pleading does not constit ut e an


esse nt ia l par t of the allegat ions det erm inat ive of the
ju r is d ict io n of a co urt . The que st io n of jur is d ict io n
depends largely upon the det erminat io n of t he t rue nat ure
of the act ion filed by a part y which, in turn, involves the
considerat io n of the ult imat e facts alleged as const it ut ive
of the cause of act ion t herein (Bautista vs. Fernandez, L-
24062, April 30, 1971). The prayer for relief, alt hough par
t of t he complaint , cannot creat e a cause of action; hence, it
cannot be considered as a par t of t he allegat ions on the
nat ure of t he cause of act ion (Rosales vs. Reyes, 25 Phil.
495; Cabigao vs. Lim, 50 Phil. 844).

2. The same rule obt ains in a majorit y of the st at es


in the Amer ican jur isdict io n which hold t hat the pra yer
or demand for relief is not part of the st at eme nt of the
cause of act ion (Salmons vs. Sun & Bradstreet, 162 S.W.
2d 245; Central Nebraska Public Power & Irrigation Dist.
vs. Watson, et al., 299 N.W. 609; Durham vs. Rasco, 227
P. 599). The prayer for relief cannot be considered as
adding to t he allegat io ns of the co mp laint or pet it io n
(Speizman vs. Guill, 25 S.E. 2d 731; Coke, et al. vs. Sharks,
et al., 291 S.W. 862). The prayer does not enlarge the
cause of act ion st at ed nor does it change the legal effects
of what is alleged (Sandgren vs. West et ux., 115 P. 2d,
724; State vs. Bonham, et al., 193 S.E. 340). A good
prayer does not aid a defective pleading (Somers vs. Bank
of America, et al., 187 P. 2d 433; Villani vs. National City
Bank of New York, 256 N.Y.S., 602).

Sec . 3. Signature and address. — E ve r y p l e a d i n g


m u s t b e s ig ne d b y t he p a r t y o r co u n s e l r e p r e s e n t i n g
hi m , s t a t i n g i n e it h e r cas e hi s a d d r e s s w h i c h s ho u l d
no t be a po s t office box.

156
RUL E 7 P AR T S OF A P L E A D I N G SEC . 3

Th e s i g n a t u r e o f c o u n s e l c o n s t i t u t e s a
certi ficat e by hi m that he ha s read the p leadin g, that
to the best of hi s k n o w l e d g e , i n format i on , and belief
t here i s goo d grou n d to su p p or t it, and that i t i s not
i n t e rp o s e d for d elay.
A n u n s i g n e d p l e a d i n g p ro d u c e s n o legal effect.
H oweve r, the Cou rt may, in its d i scret i on , allow such
d efi ci en cy to be re med i e d i f i t shall ap p ea r that the
same wa s du e to mere i n ad ve rt en ce and not int en d ed
for d e l a y . C o u n s e l wh o d e l i b e r a t e l y fi l e s a n
u n s i gn e d p l e a d i n g , or si gn s a p lead i n g in vi olat i on
o f t h i s Ru le , o r a l l e g e s s c a n d a l o u s o r i n d e c e n t
matt er t h e rei n , o r fails t o p romp t l y rep ort t o the
cou rt a c h a n g e of hi s ad d ress , shall be su b j ect to
ap p rop ri a t e d i s c i p l i n a r y act i on . (5a)

NOTES

1. The S upr eme Court has furt her resolved t hat, in


addit ion to the r equir ement t hat counsel should indicate
in all pleadings, mot ions and papers submit t ed by him to
judicial or quasi- judicial bodies his curr ent Professional
Tax Receipt (PTR) and IBP official receipt or Lifetime
Member Number (Bar Matter No. 287, Sept. 26, 2000), he
should furt her indicate his Roll of Attorneys Number.
All p lead ings, mot ions and paper s filed in court,
whet her personally or by mail, which do not bear counsel's
Roll of At torneys Number may not be acted upon by the
court, wit hout prejudice to what ever disciplinar y action
the court may t ake against the erring counsel who shall
likewise be required to comply with the requirement within
5 day s from no t ice . F a i l u r e to comply wit h suc h
r equir eme nt shall be a ground for further disciplinar y
sanction and for cont empt of court (Bar Matter No. 1132,
April 1, 2003).
2. It will be noted t hat this amended section further
specifically r e q u ir e s , UNDE R pai n of
ad min ist r at iv e
157
RUL E 7 R E M E D I A L LAW COMPENDIU M SE C . 4

d is c ip l i n a r y act io n or eve n a c it at io n for ind ir e c t


cont empt , t hat counsel should prompt ly report to the
court where he is appear ing in a case any change of his
address. I t is element ar y t hat the requirement to make
of record in the court his address or any change thereof is
to ensure his prompt receipt of judicial orders or processes;
yet, a number of lawyers fail to report such changes in
both the trial and appellat e courts result ing in unnecessar y
delay in judicial administ rat io n. This sit uat ion is furt her
aggravat ed where even the address of the part y is not
st at e d in the plead ing s or i t i s merely a ver r e d t hat
processes to said part y may be served on his counsel.

3 . No s u bs t it ut io n of a t t o r ne y s will be allo wed


unless (a) t here is a wr it t en request for such subst it ut io n,
(b) filed wit h the wr it t e n co nse nt of the client , and
(c) with the writt en consent of the attorney to be subst it ut ed,
or with proof of service of notice of said mot ion to the
at t or ney to be subst it ut ed. Unless t hese are complied
wit h, no subst it ut io n will be per mit t ed and the att orney
who last appeared in t he case before such applicat ion will
be responsible for the conduct of the case (Bacarro vs. CA,
et al, L-28203, Jan. 22, 1971, cit ing U.S. vs. Borromeo,
20 Phil. 189; see Magpayo, et al. vs. CA, et al, L-35966,
Nov. 19, 1974; Sumadchat vs. CA, et al, G.R. No. 52197,
Jan. 30, 1982; Aban vs. Enage, L-30666, Feb. 26, 1983;
Yu, et al. vs. CA, et al, G.R. No. 56766, Feb. 28, 1985).

Sec . 4 . Verification. — Excep t wh e n o t h e rw i s e


sp eci fi ca l ly p rovi d e d by law or ru le, p l e a d i n g s nee d
no t b e U N D E R oat h , v e ri f i e d o r a c c o m p a n i e d b y
affidavit.
A p l e a d i n g i s veri fi ed by an affid avi t that the
a f f i a n t h a s re a d the p l e a d i n g an d t h at the
a l l e g a t i o n s t h e r e i n ar e t ru e an d co r r e c t o f hi s
p erson a l k n o w l e d g e o r based o n a u t h e n t i c reco rd s.

158
RUL E 7 P AR T S O F A PLEADIN G SE C . 4

A p lead in g require d t o b e verifie d whic h


co n ta i n s a ver if ica ti on based on "information and
belief," or upon "knowledge, information and belief,"
or Jacks a proper verification, shall be t r e a t e d as
an unsigned-pleading. (4a) (As amended in A.M.
No. 00-2-10SC, effective May 1, 2000)

NO TES

1. The second par agr aph of this sect ion has been
furt her amended so t hat the pleader' s affirmat ion of the
t rut h and correct ness of the allegat ions in his pleading
shall be based not only on his "knowledge and belief but
specifically on his "per so na l kno wledge or based on
aut hent ic records." In the 1964 Rules of Court, Sec. 6 of
Rule 7 required perso nal knowledge of the facts averred,
which wa s co ns id er e d too st r ic t since a per so n can
reasonably affirm a fact based on his belief in its t rut h
when t here is or has been no other fact or reason cont rar y
t hereto.
However, t hat liberalized version is bet t er regulat ed
by t he pr esent amended provisions t hat facts should be
attest ed to on the basis of one's personal knowledge or,
especially wit h regard to old or vint age facts or event s,
by the recitals t hereof in aut hent ic records. Verificat ion
is int ended to forestall allegat ions which are perjured or
hear say, and t his purpose is reasonably subser ved by
the r equir ement for aut hent ic document s such as official
records which are except ions to the he ar say evidence
rule. For the same reason, a verification cannot be made
on facts obtained or arising in whole or in part from mere
informat ion and belief.

2. . Ver ificat io n ma y be mad e by the part y ,


his r epr e se nt at ive, law yer or any person who
personally knows the t r ut h of the facts alleged in the
pleading. Where the verificat ion is made by the attorney
who also signed

159
RUL E 7 R E M E D I A L LA W C O M P E N D I U M SE C . 4

the pleadings, the courts are inclined to be liberal and


accept subst ant ial compliance wit h t he verificat ion rule
(Arambulo vs. Perez, 78Phil. 387;Matel vs. Rosal, 96Phil.
984 fUnrep.J; Cajefe vs. Fernandez, etc., et al, 109 Phil.
743). Thus, where a pet it ion for ma nda mu s was verified
by the counsel to be true "to the best of (his) knowledge,
infor mat io n and belief," it was held to be sufficient in
view of the sanct ions respect ing at torneys in Sec. 5 (now,
Sec. 3) of this Rule (Guerra Enterprises, Co., Inc. vs. CFI
of Lanao del Sur, et al, L-28310, April 17, 1970).
On t he ot he r hand , a cert ificat io n aga i ns t forum
sho pping (Sec. 5 ) mus t be mad e by t he part y himse lf
and not by his lawyer (Santos, et al. vs. CA, et al, G.R.
No. 141947, July 3, 2001).

3. As a rule, pleadings need not be verified unless


so r equir ed by the Rules and ju r is pr ud e nce, as in t he
following inst ances:
a. Pet it ion for relief from judg me nt or order (Sec. 3,
Rule 38);
b. Pet it ion for review from the Regional Trial Court s
to the Court of Appeals (Sec. 1, Rule 42);
c. Pet it ion for review from t he quasi-judicial agencies
to the Court of Appeals (Sec. 5, Rule 43);
d. Appe a l by c e r t i o r a r i from t he Co ur t of Tax
Appe a l s to the S u p r e m e C o u r t (Sec. 12, R.A. 9282 ,
ame nd ing Sec. 19, R.A. 1125);
e. Appeal by cert iorar i from the Court of Appeals to
the S upreme Court (Sec. 1, Rule 45);
f. P et it io n for a n n u l m e nt of ju d g m e nt s or final
orders and reso lut io ns (Sec. 1, Rule 47);
g. Complaint for injunct ion (Sec. 4, Rule 58);
h. Applicat ion for appo int ment of receiver (Sec. 1,
Rule 59);

160
RUL E 7 P AR T S OF A P L E A D I N G SE C . 4

i. Applicat io n for suppor t pendente lite (Sec. 1,


Rule 69);
j . P et it io n for cert io r ar i aga ins t t he judg me nt s ,
final orders or resolut io ns of const it ut io nal commissions
(Sec. 2, Rule 64);
k. Pet it ion for cert iorari (Sec. 1, Rule 65);
1. Pet it io n for prohibit ion (Sec. 2, Rule 65);
m. Pet it ion for ma nd a mus (Sec. 3, Rule 65);
n. Pet it ion for quo warr ant o (Sec. 1, Rule 66);
o. Complaint for expropriat ion (Sec. 1, Rule 67);
p. Complaint for forcible ent ry or unlawful det ainer
(Sec. 4, Rule 70);
q. Pet it ion for indirect cont empt (Sec. 4, Rule 71);
r.Pet it io n for appo int ment of a general guardian
(Sec. 2, Rule 93);
s. Pet it ion for leave to sell or encumber propert y of
the ward by a guar dian (Sec. 1, Rule 95);
t. Pet it io n for the declar at ion of compet ency of a
ward (Sec. 1, Rule 97);
u. Pet it ion for habeas corpus (Sec. 3, Rule 102);
v. Pet it ion for change of name (Sec. 2, Rule 103);
w. P et it io n for vo lunt ar y judicial disso lut ion of a
corporat ion (Sec. 1, Rule 104); and
x. Pet it ion for cancellat ion or correct ion of ent r ies
in the civil regist ry (Sec. 1, Rule 108).
4. While not required to be verified in the manner
and form prescribed by Sec. 4 of this Rule, the following
must be under oath:
a. Denial of the genuineness and due execut ion of
an act ionable document (Sec. 8, Rule 8);
b. Denial of allegat ions of usury (Sec. 11, Rule 8);

161
RUL E 7 R E M E D I A L LA W C O M P E N D I U M SE C . 4

c. Mot ion to set aside a default order (Sec. 3[bJ,


Rule 9).
d. Answer to writ t en int errogatories (Sec. 2, Rule 25);
an d
e. Answer to request for admission (Sec. 2, Rule 26).
5. Supporting affidavits or affidavits of merits are
required in the following:
a. Mot io n to po st po n e for abs e nc e of evide nc e
(Sec. 3, Rule 30);
b. Motion to postpone for illness of a part y or counsel
(Sec. 4, Rule 30);
c. Mot ion for s u m m a r y j u d g m e n t or o ppo sit io n
t her et o (Secs. 1, 2, 3 and 5, Rule 35);
d. Mot io n for new t r ia l on the gr o un d of fraud,
accident, mist ake or excusable negligence or opposit ion
t her et o (Sec. 2, Rule 37);
e. Pet it ion for relief from judg me nt or order (Sec. 3,
Rule 38);
f. Third-part y claim (See. 16, Rule 39);
g. P roo f r e q u i r e d of a r e d e m p t i o n e r (Sec. 30,
Rule 39);
h. Mot io n for p r e l i m i n a r y a t t a c h m e n t (Sec. 3 ,
Rule 57);
i. Motion for dissolut ion of preliminar y injunct ion
(Sec. 6, Rule 58);
j. Applicat ion for a writ of replevin (Sec. 2, Rule 60);
k. Claim aga inst the est at e of a decedent (Sec. 9,
Rule 86); and
1. Motion for new t rial on the ground of newly-
discovered evidence in criminal cases (Sec. 4, Rule 121).

6. Even where verificat ion is requir ed by t he Rules,


the court may give due course to the plead ing even if

162
RUL E 7 P AR T S OF A P L E A D I N G SE C . 5

such verification is lacking or is insufficient or defective


if the circumstances warrant the relaxation or dispensing
of the rule in the interest of justice (Oshita vs. Republic, L-
21180, Mar. 31, 1967; cf. Quimpo vs. Dela Victoria, L
31822, July 31, 1972; Valino vs. Munoz, et al., L-26151, Oct.
22, 1970; Villasanta, et al. vs. Bautista, et al., L-30874,
Nov. 26, 1970). Verification of a pleading is a formal, not a
jurisdictional, requisite (Buenaventura vs. Uy, et al., L-
28156, Mar. 31, 1987). It is simply intended to secure an
assurance that the allegations are true and correct and
that the pleading is filed in good faith (Bank of the Phil.
Islands vs. CA, et al., G.R. No. 146923, April 30, 2003).
Hence, in the interest of substantial justice, the Court
may simply order the correction of the unverified pleading
or act on it and waive strict compliance with the rules (Vda.
de Gabriel vs. CA, et al., G.R. No. 103883, Nov. 14, 1996;
Panaguiton, Jr. vs. Dept. of
Justice, et al., G.R. No. 167571, Nov. 25, 2008).

7. Pleadings filed in the inferior courts in cases


covered by the Rule on Summary Procedure are all re•
quired to be verified (Sec. 2[BJ on Civil Cases).

Sec . 6. Certification against forum shopping. — The


plainti ff or p ri n ci p a l party shall certify UNDER
oath i n the c o m p l a i n t o r o t h e r i n i t i a t o r y p l e a d i n g
a s s e r t i n g a c l a i m fo r re l i e f , or in a s w o r n
ce rt i fi cat i on a n n e xe d t h e ret o and si mu l t an eo u s l y
filed t h e r e w i t h : (a) th at h e ha s no t t h e re t o f o r e
c o m m e n c e d an y act i o n or filed an y clai m i n vo lvi n g
the sam e i s s u e s i n an y cou rt , t ri b un a l o r q u asi -
j u d i ci al agen c y and , to the best of his kn ow l ed ge ,
no suc h ot h e r act i o n or clai m i s p en d i n g t h erei n ;
(b) i f t h er e is suc h oth er p en d i n g act i on or clai m, a
comp let e s t a t e m e n t of the p resen t st atu s thereof;
and (c) i f he sh ou l d th erea ft e r learn that the same
o r s i m i l a r a c t i o n o r cl ai m ha s b ee n fi led o r i s
p endi ng, he shall report that fact wit hin five (5) days

163
RUL E 5 R E M E D I A L LA W C O M P E N D I U M SE C . 2

t h e r e f r o m t o the C ou rt w h e r e i n hi s a f o r e s a i d
co mp l ai n t or in it iat ory p lead i n g ha s bee n filed.
Fai lu re t o comp l y wit h the fo regoi n g req u i re•
men t s shall not be cu rab l e by mer e a m e n d m e n t of
the comp l ai n t or ot h e r i n i t i at ory p le ad i n g but shall
b e c a u s e for the d i s m i s s a l o f the cas e w i t h o u t
p rej u d i ce, u n les s o t h e rw i s e p rovi d ed , upo n mot i o n
an d aft e r h e a r i n g . The s u b m i s s i o n o f a fals e
c e rt i f i c a t i o n o r n o n - c o m p l i a n c e wit h an y o f the
u n d e r t a k i n g s t h e r e i n sh a l l c o n s t i t u t e i n d i r e c t
c o n t e m p t o f c o u r t , w i t h o u t p r e j u d i c e t o the
c o r re s p o n d i n g ad mi n i st rat i v e and cri mi n al act i on s .
I f the act s o f the p art y o r hi s c o u n s e l c l e a r l y
c o n s t i t u t e wi llfu l an d d el i b e rat e foru m s h o p p i n g ,
the same shall be groun d for su mmar y d i smi s sa l wit h
p re j u d i c e an d shall c o n s t i t u t e di rec t c o n t e m p t , a s
wel l as a cau s e for a d m i n i s t ra t i v e s an c t i on s , (n)

NO TES

1. . The S upr eme Court has explained t hat t her e is


forum shopping when, as a result of an adverse decision
in one forum, or in ant icipat io n thereof, a part y seeks a
favorable opinion in a no t her forum t hrough means ot her
t ha n appeal or cert iorar i by raising ident ical causes of
action, subject - mat t er and issues. 'T o r u m shopping exist s
when two or more actions involve the same t r ansact io ns,
esse nt ia l facts and c ir cu ms t a nc e s, and raise ident ical
causes of act ion, su bje ct - mat t er and is sues. Ano t he r
indicat io n is whe n the e le me nt s of litis pendentia are
p r e s e n t or wher e a final j u d g m e n t in one case will
a mo un t to res judicata in t he ot her case. The t est is
whet her in the two or more pending cases t here is ident it y
of part ies, r ight s or causes of act ion and reliefs sought
(Ligon vs. CA, et al, G.R. No. 127683, Aug. 7, 1998; cf.
Melo, et al. vs. CA, et al, G.R. No. 123686, Nov. 16, 1999).

164
RUL E 7 P AR T S OF A P L E A D I N G SE C . 5

Fo r u m s ho pp in g i s c o nd e m ne d be ca u s e i t duly
burdens court s wit h heavy caseloads, unduly taxes the
manpower and financial resources of the judiciar y, and
trifles with and mocks judicial processes. The primar y evil
sought to be prescribed by the prohibit ion against forum
shopping, however, is the possibilit y of conflicting decisions
being r ender ed by the different court s upon t he same
issues (Guy vs. CA, et al., G.R. No. 165849, Dec. 10, 2007,
and companion cases).

2. This sect ion, wit h modificat ions, is t aken from


Ad minist rat ive Circular No. 04-94 issued by the Supreme
Court on Fe br uar y 8, 1994 for the pur pose explained
t herein:
"Revised Circular No. 28-91, dated Febr uar y 8,
1994 applies to and governs the filing of pet it ions in
the S upr eme Court and the Court of Appeals and is
int ended to prevent the mult iple filing of pet it ions or
c o mp l a i nt s in vo l v i n g the sa m e issu e s i n ot he r
t r ibuna ls or agencies as a form of forum shopping.
"Co mp lement ar y t heret o and for the same pur•
pose, the following r equir eme nt s, in addit ion to those
in p er t ine n t provisions of the Rules of Court and
exist ing circulars, shall be strictly complied with in
the filing of compla int s, pet it io ns, applicat ions or
ot her init iatory pleadings in all courts and agencies
ot her t ha n t he S upr eme Court and t he Court of
Appeals and shall be subject to the sanct ions provided
hereunder."
The provisions of Revised Circular No. 28-91 have
been adopt ed and incorporat ed in Rules 42, 43, 45, 46,
47, 64 and 65.
3. . The Supreme Court has advanced the rule
t hat compulsory count er cla ims are not co nt emp lat ed
in its Administrat ive Circular No. 04-94 which refers to
init iatory and similar pleadings. A compulsory
count erclaim set up

16B
RUL E 7 R E M E D I A L LA W C O M P E N D I U M SE C . 5

in t he answers should not be considered as an init iatory


or similar pleading since the defendant ha s to raise a
co mpulsor y co unt ercla im wher e pro per, ot her w ise he
waives t he same. The rat ionale is t hat the compulsor y
count erclaim is only a react ion or response, mandat or y
under pain of waiver, to an init iat ory pleading which is
the complaint (Cruz-Agana vs. Santiago-Logman, etc., et
al., G.R. No. 139018, April 11, 2005). There are American
doctrines, however, holding t hat any counterclaim is in the
nat ure of a counter-complaint or cross-petition; hence, under
t hat theory it is actually init iatory of a claim for relief discrete
from the adverse part y's claim.

4. . Aside from some a m e n d m e nt s to the


or igina l sanct ions imposed in Ad minis t rat ive Circular
No. 04-94, this sect ion r e it er at es as a regular r equir ement
under the Rules t hat the cert ificat ion against forum
shopping may be incorporat ed in the complaint or
cont ained in a sworn cert ificat ion anne xed t her et o and
s imu lt a neo us l y filed t her ew it h. This enunc iat es the
policy of the S upr e me Co urt e xp r e s s e d as ear l y as
C ir cu la r No. 1-88 t hat su bse qu e n t co mpliance wit h
the r e qu ir e me nt s for t he filing of pet it io ns or mot ions
is not a ground for reconsi• der at io n of t he dis missa l of
said p leadings, except for compelling r easo ns. In light
hereof, the view t hat belat ed filing of the cert ificat ion
may be deemed a su bst ant ia l compliance should no
longer be sust ained.
Wit h r espe c t to the co nt e nt s of the cer t ific at io n
which the pleader may pr epar e, the rule of subst ant ial
compliance may be availed of. While t his section requires
t hat it be strict ly complied wit h, it mer ely underscores
it s m a nd a t o r y nat ur e in t hat i t canno t be a lt o get he r
dispensed wit h or its r equir ement s completely disr egarded
but i t does not t hereby pr event subst ant ial compliance on
this aspect of its provisions under just ifiable circumst ances
(see Gabionza vs. CA, et al., G.R. No. 112547, July 18,
1994). T hi s c e r t i f i c a t io n on no n - fo r u m s ho p p i n g
wa s des ig ne d t o pr o mo t e an d fac i l it a t e the o r der l y
166
RUL E 7 P AR T S OF A P L E A D I N G SE C . 5

ad min ist r at io n of just ice and, t herefore, should not be


int erpret ed wit h absolute lit eralness (Loyola vs. CA, et
al., G.R. No. 117186, June 29, 1995; Maricalum Mining
Corp. vs. NLRC, et al, G.R. No. 124711, Nou. 3, 1998;
RLC Construction and Deu. Corp., et al. us. Emily Homes,
etc., et al., G.R. No. 139360, Sept. 23, 2003).
More import ant ly, this section specifically st at es t hat
the "(f)ailure to comply wit h the foregoing r equir ement s
shall not be curable by mere ame nd ment of the complaint
or ot her init iat or y pleading but shall be cause for the
dismissal of the case wit hout prejudice, unless otherwise
provided, upon mot ion and aft er hear ing. " This will
obviate the former practice of some trial courts in allowing
ame nd ment of the incomplet e pleading for the incorpo•
rat ion t herein of the certificate against forum shopping.
That was e r r o neo u s since t hi s u nd e r t a k i n g ag a ins t
mult iple filing of cases is not part of the operat ive facts
required to be alleged in an init iatory pleading, such as
allegat ions on the cause of act ion. It is a special require•
ment for admission of the init iatory pleading for filing in
court, hence the absence thereof is not curable by mere
ame nd ment .
Inst ead, the case shall be dismissed on motion but,
just like the pract ice under Revised Circular No. 28-91 in
the appellat e court s, such dis missal shall be w it hout
prejudice. This more liberal rule is dist inguishable from
the effects of dismissal of the case for non-compliance
with the Rules under the provisions of Sec. 3, Rule 17
which pr esuppo ses the pendency of t he case, wher eas
what is cont emplat ed in this section is the init iat ion of
the case. The case may consequent ly be refiled wit hin
the balance of the r egle me nt ar y period but subject to
the provisions on prescript ion of actions.

5. In applying the forerunner of this sect ion, the


S upr e me Co urt , in the case of Fil-Estate Golf and
Development, Inc. vs. CA, et al. (G.R. No. 120958 ,
Dec. 16, 1996), ruled as follows:

167
RUL E 7 REMEDIA L LAW COMPENDIU M SE C . 5

"As clearly demonstrat ed above, the willful att empt


by pr ivat e r e s po nd e nt s to o bt ain a p r e l i m i n a r y
injunct ion in anot her court after it failed to acquire
the same from the original court const it ut es grave
abuse of the judic ial process. Such disr espect is
penalized by the summar y dismissal of both act ions
as mandat ed by par agr aph 17 of the Int er im Rules
and Guidelines issued by this Court on 11 Januar y
1983 and Supreme Court Circular No. 28-91. x x x.
X X X

The rul e a g a i ns t fo r u m- s ho pp in g i s fu r t he r
s t r e n g t h e ne d by the is sua nc e of S u pr e me Co urt
Cir cular No. 04-94. Said c ir cular formally est a•
blished the rule t hat the deliberat e filing of mult iple
co mp la int s to obt ain favorable act ion co nst it ut e s
forum-shopping and shall be a ground for su mmar y
dismissal thereof."

6. As earlier st at ed, with respect to the cont ent s of


the cert if icat io n of no n- fo r um sho pp ing, the rule of
subst ant ial compliance may be invoked under just ifiable
c i r c u m s t a n c e s . Ho wever , i t i s m a n d a t o r y t hat the
cert ificat ion be executed by the pet it ioner himself, and
not by counsel. Obviously, it is the petit io ner, and not
the counsel ret ained for a part icular case, who is in the
best posit ion to personally know whet her he or it had
actually filed or caused the filing of anot her or previous
pet it ion involving the same case or subst ant ia lly the same
issues. Hence, a cert ificat ion execut ed by counsel is
defective and const it ut es a valid cause for dismissal of
the pet it ion (Far Eastern Shipping Co. us. CA, et a I., G.R.
No. 130068, and Manila Pilots Association vs. Phil. Ports
Authority, et al., G.R. No. 130150, jo int ly decided on
Oct. 1, 1998; cf. Commissioner of Internal Revenue vs.
S.C. Johnson & Son, Inc., et al., G.R. No. 127105,
June 25, 1999; Mendigorin us. Cabantog, etc., G.R.
No. 136449, Aug. 22, 2002).

168
RUL E 7 PARTS OF A PLEADING SEC . 5

7. . On the foregoing pr e m is e s , wher e t her e


are several pet it io ner s, it is not sufficient t hat only one
of t hem execut es the cert ificat ion, absent a showing
t hat he was so aut hor ized by the ot hers. That
certificat ion requires personal knowledge and it cannot
be presumed t hat the signatory knew t hat his co-
pet it ioners had the same or similar act ions filed or pending
(Loquias, et al. vs. Office of the Ombudsman, et al., G.R.
No. 139396, Aug. 15, 2000). Where, however, the co-
pet it ioners are husba n d and wife wit h joint int er es t in
the subject mat t er of the case which is their conjugal
propert y, the husba nd alone as ad m in i st r at o r of said
propert y can execute the cert ificat ion (Docena, et al. vs.
Lapesura, etc., et al., G.R. No. NO 153, Mar. 28, 2001). Also,
where all the pet it io ner s, being r e lat ive s and co-owners
of the propert ies in disput e, share a common int erest
t herein and a common defense in the action, one of them
alone can execute the cert ificate of non-forum shopping
(Cavile, et al. vs. Cavile, et al., G.R. No. 148635, April 1,
2003).

8. This r equir ement is int ended to apply to both


nat ural and jur idical persons. Where the pet it ioner is a
co rpor at io n, the cert ificat io n aga inst forum shopping
should be signed by it s duly a ut ho r iz e d dir ect or or
r epr esent at ive. The same is t rue with respect to any
jur id ic a l e nt it y since i t has of necess it y the pro per
officer to repr esent it in its other t r ansact io ns (Digital
Microwave Corp. vs. CA, et al, G.R. No. 128550, Mar. 16,
2000). In National Steel Corp. vs. CA, et al. (G.R.
No. 134468 , Aug. 29 , 2002), t he rule was liber a l l y
applied pro hoc vice "in view of the peculiar circumst ances
of the case and in the int erest of subst ant ial just ice."
However, in BA Savings Bank vs. Sia, et al. (G.R.
No. 131214 , Jul y 27 , 2000), i t was held t hat the
certification of non-forum shopping may be signed, for and
on behalf of a corporation, by a specifically aut horized
lawyer who has personal knowledge of the facts required
to be disclosed in such document. This does not mean,
169
RUL E 7 REMEDIA L LAW COMPENDIU M SE C . 5

though, t hat any lawyer represent ing the corporation may


routinely sign t hat cert ificat ion. T hat lawyer must be
specifically auOwrized in order to validly sign the same.
Furt her, while said counsel may be the counsel of record;
t here must be a resolut ion of the board of directors t hat
specifically aut hor izes him to file the action and execute
the cert ificat ion (BPI Leasing Corp. vs. CA, et al., G.R.
No. 127624, Nov. 18, 2003).

9. If a case is dismissed wit hout prejudice because


of the filing by t he plaint iff of a notice or dismissal before
the service of the answer or responsive pleading pur suant
to Sec. 1, Rule 17, the subsequent refiling of the case by
the same part y will not require a certification of non-forum
shopping sett ing forth such ant ecedent facts.
As already st ated, forum shopping is resort ed to by a
part y with a case in one forum in order to possibly secur e
a favorable judg me nt in ano t her forum, ot her t ha n by
appeal or cert iorar i, or the inst it ut io n of two or more
act io n s o r p r o c e e d i n g s o n the sa m e caus e , o n the
supposit io n t hat one or the ot her court would make a
favorable dispo sit io n. Since a part y reso rt s to forum
shopping to improve his chances of obt aining a favorable
decision, t hat prohibit ion could not apply to a sit uat io n
co nt emp lat ed in Sec. 1, Rule 17. There is no adver se
decision against the plaint iff and the order of dismissa l
merely confirms the dismissal of the complaint wit hout
prejudice. The apprehens io n t hat the case was dismissed
in order to be t r ansfer red to the sala of ano t her judge
supposedly more sympat het ic to the plaint iff is baseless
and speculat ive (Roxas vs. CA, et al., G.R. No. 139337,
Aug. 15, 2001).

10. This sect ion provides for the mat t er s t hat should
be cont ained in the cert ificat ion against forum shopping
in t he co mp la in t or init iat or y p le ad i ng s filed in the
Regio nal Tr ial Court . Sec. 3 , Rule 46 pr escr ibes the

170
requi rem ent s for a certification against forum shopping
in p et it ions filed in the C our t of App eals, which have also
been adopted for petitions filed in the Suprem e Court,
p u r s u a n t to Sec. 2, Rule 56.

11. . As a goneral^cule-, t he violat ion of the rule-


on foru m s h o p i » H i g o ho ula~ be - ra is e d a t -the
ear*liest oppor tunity^ eu eh- «s *R -a-mot ion to dismiss or
a similar pleading. It should be noted t hat Sec. 1, Rule 9
provides that defenses and objections not pleaded in a
motion to dismiss or in an answer are deemed waived.
Also, Sec. 8, Rule 15 st at e s t hat , subject to the
pr ovisions of said Sec. 1, Rule 9, a motion a t t a ck i n g
a plea ding, or der , judgment or pr oceeding shall include
all objections then available, and all objections not so
included are deemed waived.
Thus, -belatedly raising- an-object ion due to forum
shopping at the-appellate stage will not cause the dismissal
of the appeal, except wher e the court has no jur isdiction
over the subject mat t er , or where litis pendentia, res
judicata or bar by st at ut e of limitat ions are present (Young
vs. Seng, etc., G.R. No. 143464, Mar. 5, 2003).

12. The doctrine of forum non conveniens lit erally


means "the forum is inconvenient," and emerged in private
int er nat io na l law to det er the pract ice of global forum
shopping, that is, to pr event nonr es ident litigants from
choosing the forum or place to bring their suit for malicious
reasons, to secur e pr ocedural adva nta ges, or to select a
more friendly venue. The court, may, however, refuse
imposit ions on its jurisdict ion where it is not the most
convenient forum and the par ties are not pr ecluded from
seeking remedies elsewhere.
Whether a suit should be entertained or dismissed
u nder this doctr ine d ep en ds lar gely on the facts of the
particular case and is addressed to the sound discretion of
the tr ia l c ou r t. T he S u p r e m e C ou r t ha s held t hat a

171
RUL E 7 R E M E D I A L LA W C O M P E N D I U M SE C . 5

Philippine court may assume jur isdict ion over a conflict


of laws case, if it chooses to do so, provided t hat it is one to
which the part ies may convenient ly resort, t hat it is in a
posit ion to make an int elligent decision on the law and
the facts, and t hat it has or is likely to have the power to
enforce its decision. However, while it has t he discret ion
to abst ain from assuming jur isdict ion under the doctrine,
it should do so only after vital facts are est ablished to
det er m i ne w het he r special c ir cu mst ances r equ ir e the
court's desist ance.
Since this doctrine requires such a factual det ermi•
nat ion, it is more properly considered a mat t er of defense.
It should not be used as a ground for a motion to dismiss,
and, in fact, Rule 16 does not include said doctrine as a
ground. In any event , such a claim of global forum
s ho p p i n g s ho u l d r e q u ir e t hat all e l e m e n t s of litis
pendentia are pr esent and a final judgment in one case
will amount to res judicata in the other (Bank of America
NT & SA, et. al. vs. CA, et al., G.R. No. 120435,
Mar. 31, 2003). Apropos t heret o, this equit able doctrine
presupposes at least two forums in which the defendant is
a me na bl e to process and fur nis hes crit er ia for choice
bet wee n such forums (Wilson vs. Seas Shipping Co.,
D.C.Pa., 78 F. Supp. 464).

172
RUL E 8

MANNER OF MAKING ALLEG ATIONS


IN PLE AD I NG S

S e c t i o n 1. In general. — E ve r y p l e a d i n g sha l l
con t ai n in a m et h od i ca l and logi cal form, a plain,
con ci se and d i re ot - e t et et n en t of the u lt i mat e facts
on whic h the party p lead i n g r elie s for hi s c la i m or
de fe ns e , a s the cas e may be, omi t ti n g t he st at e m en t
of mer e evi d en t i a r y fact s. (1)
h i a d e f e n s e r e l i e d o n i s b ase d o n law , the
p e rt i n en t p rov i s i on s t h e reo f an d their ap p li cab i li t y
to hi m sh a l l be< cl ea rl y and c o n c i s e l y stated, (n)

NOTES

1. . As alr ead y st at ed , anne xe s to..pleadings,


-are considered part of the pleadings, but the said
pleadings mus t co nt a i n - a s u m m a r y s t a t e m e n t o f the
m a t t e r s contained in the annex and cannot just refer to
the same (Rubios, et al. vs. Reolo, 96 Phil. 984fUnrep.J;
La Mallorca vs. CA, et al, 100 Phil. 1048; see Sec. 7 of
this Rule).
2. "Ultimate facte" are the import ant and subst an•
tial facts which e it he r direct ly form the basis of the
plaint iff's pr imar y right and duty or directly make up
the wrongful acts or omissions of the defendant (Alsua
us. Johnson, 21 Phil. 308). A fact is essent ial if it cannot
be st r icken out wit ho ut leaving the st at e me n t of the
cause of action or defense insufficient (Toribio, et al. vs.
Bid in, etc., et al, G.R. No. 57821, Jan. 17, 1985). Hence,
conclusio ns, inferences, pr esu mpt io ns, and det ails of
probat ive mat t er s should not be alleged.
•. <t\-
3. "Evidentiary facts" are those which are necessary
to prove the ult imat e fact or which furnish evidence of
the existence of some other facts. They are not proper as
173
RUL E 8 REMEDIA L LAW C O M P E N D I U M S E C S . 2- 3

allegat ions in the pleadings as they may only result in


confusing t he st at e me n t of the cause of act ion or the
defense. They are not necessar y t her efor, and t he ir
exposit ion is actually pr e mat ur e as such facts must be
found and drawn from t est imo nial and other evidence.
4. The second par agr aph is a new provision and is
in line wit h t he rule t hat a part y mus t set out wit h
clarit y right in his pleading the mat t er s upon which he
int ends to rely for his defense. It has been a mat t er of
judic ial exper ience t hat often a defense is po st ulat ed
supposedly upon certain provisions of law and, wit h such
bare allegat ion, the pleader leaves i t to the court and the
opposing part y to divine for t hemselves how said legal
provisions or principles could possibly apply or relat e to
the nat ur e of the defense invoked, a st rat egy made more
irksome and undesir able where several defenses and legal
pr o vis io ns ar e invo ked. The r at io na l e for t hi s new
r equir eme nt where the defense is based on legal grounds
is the same as the r equir ement for st at ing the ult imat e
facts where the defense is based on factual grounds.

Sec . 2. Alternative causes of action or defenses. —


A p a r t y ma y se t fo rt h t w o or mo r e s t a t e m e n t s of a
c la i m o r d e f e n s e a l t e r n a t i v e l y o r h y p o t h e t i c a l l y ,
e i t h e r i n on e c a u s e o f a c t i o n o r d e f e n s e o r i n
s e p a r a t e c a u s e s o f act io n o r d e fe n s e s . Whe n t w o
o r mo r e s t a t e m e n t s ar e mad e i n t he a l t e r n a t i v e an d
on e o f t he m i f mad e i n d e p e n d e n t l y w o u l d b e
su f f ic ie nt , t he p l e a d i n g i s no t ma d e i n s u f f i c i e n t b y
t he i ns u f f i c i e nc y o f on e o r mo r e o f t he a l t e r n a t i v e
s t a t e m e n t s . (2)

Sec . 3. Conditions precedent. — In an y p l e a d i n g


a g e n e r a l a v e r m e n t o f t he p e r f o r m a n c e o r o c c u r •
r e nc e o f all c o n d i t i o n s p r e c e d e n t sha l l b e su ff ic ie nt .
(3)

174
RULE 8 MANNER OF MAKING ALLEGATIONS SECS 4 5
IN PLEADINGS

Sec. 4. Capacity. — Facts sh ow i n g the cap aci t y


of a party to su e or be sued or the a u t h ori t y of a
party to sue or be sue d in a re p re sen t at i v e cap aci t y
or the legal exi st e n c e of an organ i zed associ at i on
of p e rson s that is mad e a party, mus t be averred .
A party d e si ri n g to rai se an i ssu e as to the legal
e xi st en c e of any party or the cap aci ty of any party
to sue or be su ed in a rep re s en t at i v e capacity, shall
do so by sp eci fi c d en i al, wh ic h shall i n clu d e suc h
su p p o rt i n g p a rt i cu la rs as are p ecu li arly wi t h i n the
pleader' s kn o w l ed ge . (4)

NOTE

1. Where the plaint iffs are foreign corporat ions,


the specific cir cumst ance t hat they are duly licensed to do
business in the Philippines, or t hat the transact ion sued
upon is singular and isolated, is an essent ial part of the
element of the plaint iff' s capacit y to sue and must be
affirmatively pleaded as required by Sec. 4 of this Rule
(Atlantic Mutual Insurance Co. us. Cebu Stevedoring
Co., Inc., L-18961, Aug. 31, 1966).

Sec. 5. Fraud, mistake, condition of the mind. — In


all av e rm en t s of fraud-or mi st ake, the ci rcu mst an ce s
con st i t u t i n g fraud or mi st a ke nauet be staged with
p a rt i cu l a ri t y. Mali ce, i n t en t, k n o w l e d g e or ot he r
con d i t i on of the mind of a person may be averre d
gen erally. (5a)

NOTE

1. Fact s co nst it ut in g condit ion of the mind are


permit t ed to be averred generally as it would be difficult
to do so with part icular it y. However, fraud and mist ake
are required to be averred with part icularit y in order to
enable the opposing party to controvert the part icular
facta allegedly const it ut ing the same. This requir ement

175
RULE 8 REMEDIAL LAW COMPENDIUM SECS. 6. 7-8

a s s u m e s s ig n i f ic a nc e in mo t io n s for new t r ia l or
pet it io ns for relief from ju dg me n t or order based on
fraud or mist ake.

Sec . 6. Judgment. — In p l e a d i n g a j u d g m e n t or
d e c is io n of a d o me s t i c or fo r e ig n co ur t , ju d i c i a l or
q u a s i - j u d i c i a l t r i b u n a l , or of a bo ar d or officer, i t i s
su f f ic ie n t t o ave r t he j u d g m e n t o r d ec is io n w i t h o u t
s e t t i n g fort h m a t t e r s ho w i n g j u r i s d i c t i o n t o r e n d e r
it. (6)

NOTE

1. This provision is a necessar y consequence of the


disput able presumpt io n t hat a court, or judge act ing as
such, w h e t h e r in the P hi l ip p ine s or e l s e w he r e , wa s
act ing in t he lawful exercise of his jur isdict io n (Sec. 3(n],
Rule 131). Such judicial record may be impeached by
evidence of want of jur isdict io n in the court or judicial
officer (Sec. 29, Rule 132).

Sec . 7. Action or defense based on document. —


W h e n e v e r a n a c t io n o r defe ns e i s base d upo n a
w r i t t e n i n s t r u m e n t o r d o c u m e n t , t he s u b s t a n c e o f
suc h i n s t r u m e n t o r d o c u m e n t sha l l b e se t fo rt h i n
t he p le a d i n g , an d t he o r ig i na l o r a cop y t he r e o f sha l l
b e a t t a c h e d t o t he p l e a d i n g a s a n e x h i b i t , w h i c h
sha l l b e d e e m e d t o b e a par t o f t he p le a d i n g , o r sai d
copy ma y wit h like effect b e se t fort h i n t he p le a d i ng .
(7)

Sec . 8. How to contest such documents. — Wh e r e


a n a c t i o n o r d e fe n s e i s f o u n d e d u p o n a wr it t e n
i n s t r u m e n t , co p ie d i n o r a t t a c h e d t o t he
c o r r e s po nd in g plead in g a s provide d i n t he
p r e c e d i n g s e c t i o n , t he g e n u i n e n e s s a n d du e
e x e c u t i o n o f t he i n s t r u m e n t s h a l l b e deeme d

176
RULE 8 MANNER OF MAKING ALLEGATIONS SECS. 7-8
IN PLEADINGS

a d m i t t e d » n U M , t a » ad^CTuu pai t y + - w d e r - ^ t h ,
sp ec i fi ca l l y de-mee-tfcero, an d uviv • furUi w4mt he
clai ms to Ofi-the ~faets;^but the re q u i r e m e n t of an
oath doe s not apply whe n the ad vers e party doe s
not ap p ea r to be a party to the i n st ru m en t or wh e n
co mp l i a n c e wit h an order for an i n sp ec t i o n of the
ori gin al i n s t ru m e n t i s refu sed. (8a)

NOT E S

1. These two sections const it ute the rule on action•


able d o c u m e nt s , as d is t i ng u i s he d from e v i d e nt ia r y
document s. There are two permissible ways of pleading
an act ionable do cument , i.e., (a) by se t t ing forth the
s u b s t a nc e of suc h d o c u m e n t i n the p le a d i n g an d
att aching the document t heret o as an annex, or (b) by
set t ing forth said document ver bat im in the pleading.
Unless alleged in any of these modes, the rule on implied
admission in Sec. 8 will not apply.

2. A var iance in the subst ance of the document set


forth in the pleading and the document annexed t hereto
does not war r a n t the dismissal of the action (Convets,
Inc. us. National Deuelopment Co., 103 Phil 46). However,
the cont ent s of the document annexed are controlling.

3. . Wher e the act io na bl e do cu me n t i s


pr o per ly alleged, t he failure to deny the same r esu lt
s in the admission of t he "genuine ness and due
execut ion" of said document, except (a) when the
adverse part y was not a party to the inst rument , and
(b) when an order for the inspect ion of the document
(see Rule 27) was not complied with.
4. By "genuiwcncoo" is meant t hat the document is
not spur ious, counterfeit , or of different import on its
face from t he one execut ed hy the part y (Bough us.
Cantiveros, 40 Phil. 208), or t hat the party whose sig•
nat ure it bears has signed it and t hat at the time it was

177
RUL E 8 R E M E D I A L LAW COMPENDIU M S E C S . 7- 8

signed, it was in words and figures exactly as set out in


the pleadings (Hibberd vs. Rhode, 32 Phil. 476).
5. By "due-execution" is meant t hat the document
was signed vo lunt ar ily and knowingly by the part y whose
s ignat ur e appear s t hereo n, t hat if signed by somebody
else such r epresent at ive had the aut horit y to do so, t hat
i t was duly de liver ed, and t hat the for ma lit ies were
complied wit h (see Hibberd vs. Rhode, supra; Ramirez
vs. Orientalist Co., et al., 38 Phil. 634).

6. By t he ad miss io n of the ge nu ine ne ss and due


execut ion of a document , such defenses as t hat the sig•
nat ure was a forgery; or t hat it was unaut hor ized in the
case of an agent signing in behalf of a part ner ship or of
a cor po r at io n; or t hat , in t he case of the lat t er , t he
corporat ion was not aut horized under its chart er to sign
the inst r u me nt ; or t hat the par t y char ged signed t he
inst r u me nt in some ot her capacit y t ha n t hat alleged in
the pleading set t ing it out; or t hat it was never delivered,
are deemed cut off. But the failure to deny the genuine•
ness and due execut ion of the document does not estop
a part y from controvert ing it by evidence of fraud, mist ake,
compromise, payment , st at ut e of limit at ions, estoppel, and
want of considerat io n (1 Martin 301, cit ing Hibberd vs.
Rhode, supra, and Bough vs. Cantiveros, supra).

7. . Even wher e the opposing part y failed to


deny UNDE R oat h the a ut he nt ic it y and due execut io n
of an act ionable document properly alleged, he can still
raise t he defense in his answe r and prove at the t r ia l
t hat t here is a mist ake or imperfect ion in the writ ing, or
t hat it does not express the true agr eement of the
part ies, or t hat the agr eement is invalid or t hat t here is
an int rinsic ambiguit y in t he wr it ing, as these except ions
to the parol evidence rule (Sec. 9, Rule 130) are not cut
off by, since they are not inconsist ent wit h, the implied
admissio n of the aut hent ic it y and due execut ion of the
inst r u me nt .

178
RUL E 8 M A N N E R OF M AK I N G A L L E G A T I O N S SE C 9
I N PLEADING S

8. In an act ion for the recovery of a parcel of land


claimed by plaint iffs as t hei r her ed it ar y shar es , de•
fendant s in t heir answer at t ached, by way of defense,
copies of the deed s of sal e a l le g ed l y e xec ut e d by
plaintiffs in favor of their brot her over their shares in said
parcel of land, and a copy of the deed of sale t hereaft er
executed by said vendee in favor of the defendant s. Said
original deeds of sale and the subsequent deed of sale in
favor of the defendant s are act ionable document s as they
const it ut e t heir defense to the action. P ursua nt to Sees. 7
and 8 of Rule 8, the authenticity and due execut ion of
said deeds of sale ar e impliedly admit t ed by plaint iffs for
failure on t heir par t to file a reply under oath specifically
denying the same. This implied admission, however, does
not apply to the ot her plaint iffs who are the heirs of one
of the (deceased) original vendors since they were not
part ies to the document s. Furt her mor e, i t appears t hat
in their verified complaint , the plaintiffs alleged t hat they
never sold t heir heredit ar y shares and, consequent ly, the
defendant s were aware t hat they would be called upon to
establish the genu ineness and due execut ion of said deeds
of sale. Accordingly, the S upr e me Court relieved the
plaint iffs of the effects of t heir implied admissio n in
the int erest of just ice (Toribio, et al. us. Bidin, etc., et al.,
G.R. No. 57821, Jan. 17, 1985).

9. Where the case had been tried in disregard of the


rule on act ionable document s and plaint iff present ed oral
evidence to prove aut hent ic it y and due execut ion, and
failed to object to defendant 's evidence in refutat ion, the
rule is deemed waived (Yu Chuck us. Kong Li Po, 46 Phil.
608), especially where both part ies acted in disregard of
or overlooked the rule at the t r ial (Central Surety &
Insurance Co. us. Hodges, L-28633, Mar. 30, 1971).

Sec . 9. Official document or act. — In p l e a d i n g an


official d o c u m e n t or official ac t i t i s suff ic ie nt to

179
RUL E 8 REMEDIA L LAW C O M P E N D I U M SE C . 10

aver that the d o c u m e n t wa s i ssu e d or the act don e


in c o m p l i a n c e wit h law. (9)

Sec. 10. Specific denial. — A d e f e n d a n t mu s t


sp eci fy eac h mat eri a l a l l egat i o n of fact the t rut h
o f wh i c h h e doe s not ad mi t and , w h e n e v e r p rac•
t i cab le, shall set forth the s u b s t an c e of the mat t er s
upo n wh i c h he reli es to supp or t his d en i al. Wh ere
a d e f e n d a n t d e s i r e s to d en y on l y a p ar t of an
ave rm e n t , he shall sp eci fy so mu c h of i t as i s true
and mat e ri a l and shall d en y the re m ai n d e r . Wh ere
a d e f e n d an t i s wi t h ou t k n o w l e d g e or i n fo rm at i o n
suffi cient to form a belief as to the tru th of a mat eri al
a v e rm e n t mad e in the comp l ai n t , he shall so st at e,
and thi s shall hav e the effect of a d en i al. (10a)

NOTES

1. There are two ways of making a specific denial,


i.e., (a) by specifica lly de n yi n g t he a v e r m e n t and ,
whe ne ve r possible, set t ing forth the s ubst a nce of the
m a t t e r s r elied upo n for suc h denia l ; an d (b) by an
allegat ion of lack of knowledge or informat ion sufficient
to form a belief as to the t r ut h of the aver me nt in the
opposing part y' s pleading.

2. Where the a ver me nt s in the opposing part y' s


pleading are based on document s which are in the pos•
session of the defendant , or are pr esumed to be known by
him, or ar e r ead il y a s c e r t a i na b l e by him, a gener a l
allegat ion of lack of knowledge or informat ion t hereof on
his part will not be considered a specific denial but an
admissio n (see Warner, Barnes and Co., Ltd. vs. Reyes,
et al., 103 Phil. 662; Capitol Motors Corp. vs. Yabut, L-
28140, Mar. 19, 1970; New Japan Motors, Inc. vs. Perucho,
L-44387, Nov. 5, 1976; Gutierrez, et al. vs. CA, et al., L-
31611, Nov. 29, 1976). The defendant must aver or st at e
posit ively how it is t hat he is ignorant of the facts

180
RUL E 8 M A N N E R O F M AK I N G A L L E G A T I O N S SE C 1 1
I N PLE ADING S

alleged (Phil. Advertising Counselors, Inc. vs. Revilla,


et al, L-31869, Aug. 8, 1973). Where the answer alleges
lack of kno wledge of t he "exact amo un t due" to t he
plaint iff, the sam e will pr ec lude a ju dg me n t on t he
p le a d i ng s bu t not a mot ion for s u m m a r y ju d g me n t
if s u p p o r t e d by a d e q u a t e proof (Phil. Bank of
Communications vs. Guitar Match Mfg. Co., Inc. 102
Phil. 1162 fUnrep.J).

3. Where the answer merely reproduces the recit als


in the complaint and denies such recitals wit hout sett ing
forth the mat t er s relied upon in support of such denials
alt hough it is pract icable to do so, such answer contains
only general denials and judgme nt on the pleadings is
pro per (Sy-Quia, et al. vs. Marsman, ct al, L-23426,
Mar. 1, 1968).

4. A "negative p r e g na nt " is t hat form of denial


which at the same time involves an affirmat ive impli•
cation favorable to the opposing part y. Such a "negat ive
pr e g na nt " is in effect an admiss io n of the a ver me n t
to which it is directed (1 Martin 306). It is said to be a
denial pr eg na n t with an admission of the subst ant ia l
facts in the pleading responded to (Guevarra vs. Eala, A.C.
No. 7136, Aug. 6, 2007).
Wher e a fact is alleged wit h some qualifying or
modifying la nguage, and t he denia l is conjunct ive, a
negat ive pr egna nt exist s and only the qualificat ion or
modification is denied, while the fact itself is admit t ed
(Ison vs. Ison, 115 SW 2d. 330, 272 Ky, 836). Thus,
where the complaint alleges t hat the defendant deprived
plaint iff of possession on a claim of having purchased
the propert y from a third person, and the answer denies
merely t he "mat er ial a ver ment s" and assert s t hat the
defendant never claimed possessory rights based on the
alleged pur c has e from such t hird per son, t her e is a
negat ive pr egnant as the defendant has in effect, denied
only the qualificat ion but not the averment t hat he had

181
RUL E 8 R E M E D I A L LAW COMPENDIU M SE C . 11

deprived the plaint iff of act ual possession of the land


(Galofa vs. Nee Bon Sin, L-22018, Jan. 17, 1968).
5. The same rule applies in appellat e proceedings
where the appellant ' s assignment of error is to the effect
t hat the conclusion of the Court of Appeals "is not sup•
port ed by any direct t est imo nial evidence." This is a
negat ive p r e g na n t as such co nt ent io n does not deny
the ex ist e nc e of ind ir ec t t e st i mo n i a l evide nce or of
do cume nt ar y evidence (Taniayo us. Callejo, et al., L-
25563, July 28, 1972).

6. Where the suit is brought upon the cont ract ual


obligat ion under the cont ract of carr iage cont ained in
bills of lading, such bills of lading can be cat egorized as
act ionable do cu me nt s which UNDE R t his Rule must be
pleaded eit her as causes of action or defenses, and the
genuineness and execut ion of which are deemed admit t ed
unless specifically denied UNDE R oat h by t he adver se
part y.
Even assu m ing t hat the part y aga inst whom said
pro vis io ns in the bills of lading are alleged made an
aver me nt in its responsive pleading which a mo u nt s to a
denia l, such denial i s no net he les s p r e g na n t wit h the
a d m i s s io n of the s u b s t a n t i a l fact s i n the p le a d i n g
responded to which are not squarely denied. T hus, while
the r e s po nd i n g part y object ed to the valid it y of the
a g r e e me n t co nt a ined in the bills of lading for being
contrary to public policy, the existence of the bills of lading
and the st ipulat io ns t herein are impliedly admit t ed. The
denial made by the responding part y is what is known in
the law on pleadings as a negat ive pr egna n t and is in
effect an ad m is s io n of t he aver me n t i t is d ir ect ed to
(Philippine American General Insurance Co., et al. vs.
Sweet Lines, Inc., et al, G.R. No. 87434, Aug. 5, 1992).

Sec . 11. Allegations not specifically denied deemed


admitted. — IVLatexial-averment in the c o m p l a i n t ,

182
RULE 8 MANNER OF MAKING ALLEGATIONS SEC 11
IN PLEADINGS

oth er the** t h o s e a s t o t h e- am ou n t o f u n li q u i d at e d
d a m a g e s , sh a l l b e d e e m e d a d m i t t e d wh en- no t
s p e c i f i c a l l y d en ied . A lle g at i on s o f usu r y i n a
co mp l ai n t to recove r u su ri ou s i n t e re st are d ee me d
ad mi t t ed i f not d en i e d UNDER oath, (la , R9)

NOTES

1. The following aver ment s in the complaint are


not deemed ad m it t e d even if not specifically denied:
(«rj allegat ions as to the amount of damages, (b) allegat ions
which are immat er ia l to the cause of action (Worcester
vs. Lorenzana, 104 Phil. 134), which includes conclusions
of fact and law, inferences, etc., and (c)'all allegat ions in
the comp laint where no answer has been filed by t he
defendant (Lopez vs. Mendezona, 11 Phil. 209; Worcester
vs. Lorenzana, supra).

2. The following aver me nt s in t he complaint are


deemed admitted even if specifically denied: (a) allegations
as to usury, and (b) the aut hent icit y and due execution
of act io nable do cu me nt s pro per ly pleaded where t he
opposing part y was a part y t heret o. Mere specific denial
is insufficient as the Rules require t hat such denial must
be under oath.

3. . However, i t has been held t hat the rule


t hat allegat ions of usur y are deemed admit t ed if not
denied specifically and under oath is a procedural rule
and the lack of an oath in a pleading is a defect which is
subject to waiver just as a defective or imperfect
verification may be waived. Besides, the reglement ar y
admission of the allegat ion of usury ar ising from failure
to make a denial under oat h may, like any other
admission in court, be w it hdr a w n wit h leave of court
under Secs. 2 and 3, Rule 10 which permit subst ant ia l
amendment of pleadings once as a mat t er of right when
the action has not been placed on the trial calendar or,
after the case is set for

183
RUL E 8 R E M E D I A L LAW COMPENDIU M SE C . 12

hear ing, upon leave of court (Dionisio vs. Puerto, et al., L-


39452, Oct. 31, 1974).
See, in t his connect ion, the case of Liam Law vs.
Olympic Sawmill, et al., supra, cited under Note 3 of
Sec. 10, Rule 6 and the discussion t hereon.
4. Where the defendant relied solely on his defense
of res judicata and submit t ed the case for decision on
t hat issue, he is deemed to have admit t ed all the mat er ia l
a l l e g a t io n s i n the c o mp la i n t and j u d g m e n t can b e
rendered accordingly (Dominguez vs. Filipinos Integrated
Services Corp., et al., G.R. No. 58820, Sept. 30, 1982).

Sec . 12. Striking out of pleading or matter


contained therein. — Upo n mo t io n ma d e by a p a r t y
be fo r e r e s p o n d i n g t o a p l e a d i n g or, i f no r e s p o n s i v e
p l e a d i n g i s p e r m i t t e d b y t he s e R u le s , upo n mo t io n
ma d e b y a p a r t y w it h i n t w e nt y (20) da y s a ft e r t he
se r vic e o f t he p l e a d i n g upo n him , o r upo n t he co ur t ' s
o w n i n it i a t i v e a t an y t ime , t he C o u r t ma y o r d e r an y
p l e a d i n g t o b e s t r i c k e n ou t o r t hat an y s h a m o r
fa lse , r e d u n d a n t , i m m a t e r i a l , i m p e r t i n e n t , o r
s c a n d a l o u s m a t t e r b e s t r i c k e n ou t t h e r e f r o m .
(5 , R9 )

184
RULE 9

EFFECT OF FAILURE TO PLEAD

S ec t i o n 1. Defenses and objections not pleaded. —


D e f e n s e ^ 4 ^ d o b j e c t i o n s no Impleaded ei t h e r in a
mo t i o n t o d i s m i s s - o r i n the a n s w e r are d e e m e d
w a i v e d . H o w e v e r , w h e n i t a p p e a r s fro m the
p le ad i n g s or the evi d en c e on record that the cou rt
has n o j u ri s d i c t i o n ove r the su bj ec t mat t er, that
t here i s an ot h e r act i o n p en d i n g b etwee n the same
p art i e s for the sam e cau s e , or that the act i o n i s b a r r e
d b y a p ri o r j u d g m e n t o r b y s t a t u t e o f li mi t at i on s,
the Cou rt shall d i smi s s the clai m. (2a)

NOTES

1. . UNDE R t his a me nded provisio n, the


fo llowing defenses are not waived even if not raised in a
motion to dismiss or in the answer: (a") lack of
jur isdict ion over the subject mat t er; (b~) litis pendentia;
(c) res judicata; and
(d) prescript ion of the action.
2. The omnibus motion rule in the former Sec. 2 of
this Rule also provided, as an except ion t heret o, "the
failure to st at e a cause of action which may be alleged in
a lat er pleading, if one is per mit t ed, or by motion for
judgment on the pleadings, or at the trial on the mer it s;
but in the last inst ance, the motion shall be disposed of
as provided in Sect ion 5, Rule 10 in the light of any
evidence which may have been received."
That ground and the alt er nat ive bases for consider•
ing it, in the event it was not alleged in eit her a motion
to dis miss or in the answer , has been delet ed as an
except ion to the omnibus motion rule. The alt ernat ive
ways for posing t his ground for co nsider at io n of the
court in other pleadings, t hat is, in a later pleading if
185
RUL E 9 R E M E D I A L LA W C O M P E N D I U M SE C . 1

per mit t ed or by motion for judgme nt on the pleadings,


are cont ingent on future event s and will only result in
delay. On the other hand, the failure to st at e a cause
of act io n should be cha llenged in e it he r a mot io n to
dismiss or in the answer so t hat the case will not proceed
for considerat ion, despit e such omission, upon a defective
and insufficient complaint which could have been remedied
in the first inst ance by the plaint iff duly responding to
the object ion on t hat ground. If t hat ground is correct ly
raised in a mot ion to dismiss, or in the answe r as an
a f f i r m a t i v e d e fe ns e , the Co urt ca n a lw a y s a llow
a me nd me n t of the complaint and t he case will proceed to
trial sans t hat defect. If the co mplaint is dismissed on
t hat ground, t he plaint iff can refile his co mp la int as
such dismissal does not normally const it ute an adjudicat ion
on the mer it s.
The foregoing o bs er vat io ns refer to t he s it u at io n
where the complaint or ot her init iat ory pleading fails to
allege facts co nst it ut ive of a cause of act ion. Wha t is
co nt emp lat ed, t herefore, is a failure to state a eause of
action which is provided in Sec. 1(g) of Rule 16. This-is a
mat t e r of insufficiency of the pleading. Sec. 5 of Rule 10,
which wa s also inc luded as the las t mode for -raising
the issue to the court, refers to the sit uat io n wher e the
evidence does not prove a cause of act ion. T-hisis, t herefore,
a mat t e r of insufficiency of the evidence. Failur e to st at e
a cause of act ion is different from failure to prove a cause
of action. The-remedy in the first is to move for dismissal
of the pleading, while t he remedy in the second is te-demur
to the evidence, hence reference to Sec. 5 of Rule-1-0 has
been e liminat ed in t his sect ion. The procedur e would
consequent ly be to require the pleading to st at e a cause
of action, by t imely objection to its deficiency; or, at the
trial, to file a de mur r e r to the evidence, if such mot ion is
war r ant ed .

186
RULE 9 EFFECT OF FAILURE TO PLEAD SEC. 1

3. The objection on jur isdict ional grounds which is


not waived even if not alleged in a motion to dismiss or
the answer is lack of jur isdict ion over the subject-matter.
Lack of jur isdict ion over the nature of the action has been
eliminat ed in Rule 16 of these revised Rules, alt hough
t hat objection may possibly be raised in other pleadings
or proceedings. Lack of jur isdict io n over the subject-
mat t er can always be raised anyt ime, even for the first
time on appeal, since jur isd ict io na l issues cannot be
waived but subject, however, to the principle of estoppel
by laches.

4. The'defense of litis pendentia has been included


in t he except ions to the gener al rule on waiver in this
ame nded sect ion by reason of the fact that , since the
other case is still pending, a resolut ion of the objection
raised on this ground should properly await the resolut io n
of and the development s in the other pending case. Upon
the o ccur rence of t he r e le va n t co nt ing enc ies in t hat
ot her case, t his object ion may t hen be raised, unles s
already submit t ed to the court, which by then would be
in a bet t e r posit io n to appr eciat e the mer it s of t his
objection.

5. Res judicata and prescript ion of the claim have


also been added as except ions since they are grounds
for ext inguis hme nt of the claim. It would appear to be
unduly t echnical, if not contrary to the rule on unjust
enr ic hme nt , to have the defending part y respond all
over again for the same claim which has already been
resolved or is no longer recoverable under the law. It is
worth ment ioning in t his connect ion t hat, in Sec. 5 of
Rule 16 as a me nded, an order gr ant in g a mot ion to
dismiss on the gro unds, inter alia, of res judicata or
prescript ion shall bar the refiling of the same action or
claim.

187
RUL E 9 R E M E D I A L LAW COMPENDIU M SE C . 1

6. . The p r e s e nc e of an y of t hes e four


g r o u nd s aut horizes the court to motu proprio dismiss
the claim, t hat is, the claims assert ed in a complaint ,
count er claim, cro ss- c la i m, t hir d ( fourt h, et c. ) - par t y
c o mp la i n t or complaint - in- int er vent io n (see Sec. 2, Rule
6). In order t hat it may do so, it is necessary t hat the
const it ut ive facts of such grounds, if not in the answer
with evidence duly a dd uc e d t her e fo r , sho ul d a p p e a r
i n the ot he r pleadings filed or in the evidence of record
in the case.

7. Specifically wit h respect to the defense of pre•


scr ipt ion, t he pr es e n t provision is s im ilar to the rule
ado pt ed in civil cases, but diss imilar to t he rule and
rat io nale in cr iminal cases. In civil cases, it has been
held t hat the defense of prescr ipt io n may be considered
only if t he same is invoked in the answer, except where
the fact of prescr ipt ion appear s in the allegat ions in the
co mp la int or t he evidence pr e se nt e d by t he plaint iff,
i n whic h case suc h de fe ns e i s not dee me d wa ive d
(Ferrer vs. Ericta, et al., L 41761, Aug. 23, 1978; Garcia
vs. Mathis, et al., L-48577, Sept. 30, 1980). It would
t hu s appea r t hat the no n-waiver i s d e pe nde n t on the
t ime liness of invocat ion of the defense, or where such
defense is a mat t e r of record or evidence.

8. In cr iminal cases, the same general rule on waiver


of any ground for a motion to quash also obt ains where
the accused fails to assert the same eit her because he
did not file such mot ion before he pleaded or failed to
allege such ground t her e in. E xcept ed from t his rule,
ho wever , is the gr o un d of pr e s cr ipt io n e it he r of t he
offense or the penalt y, t hat is, t hat the criminal action or
liabilit y has been e xt ingu ished (Sec. 9, Rule 117). This
provision does not requir e the qualificat ions of season•
abl e i n vo c a t io n or r e co r d e d fact of the g r o u n d of
prescr ipt io n as discussed above for civil act ions. Inst ead,
said provision is evident ly based on the rulings of the
S u p r e m e Co ur t t hat o bje ct io n o n the g r o u n d o f

188
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SE C . 2

pr e s cr ipt io n of the cr ime is not waived even if not


raised before the plea, since prescript ion is a subst ant ive
r igh t whic h c a nno t be de feat e d by p r o vis io n s of a
procedural law (People vs. Moran, 44 Phil. 387; People
vs. Castro, 95 Phil. 462). For t hat mat t er, such objection
may even be raised for the first time on appeal (People
vs. Balagtas, 105 Phil. 1362 fUnrep.J; Escano, et al. vs.
Geronimo, [CA], 60 O.G. 8497).

Sec. 2. Compulsory counterclaim, or cross-claim, not


set up barred. — A c o m p u l s o r y c o u n t e rc l a i m , or a cross-
clai m, no t se t up sh all be barred. (4a)

NOT E S

1. See notes under Secs. 7 and 8, Rule 6.


2. Where, in a first act ion against him, the com•
pulsory co unt er cla im of defe ndant was dismissed for non-
payment of docket fee, such dismissal is not a bar to
his filing of the same count erclaim in a subsequent act ion
i nst it ut e d by the plaint iff involving t he same su bje ct -
mat t er . The d is m is sa l of said co unt er c la i m does not
co nst it ut e res judicata because it was not a det erminat io n
on the merit s of the count erclaim. Also, t he d is m i s s a l
of said c o u nt e r c l a i m ha vin g bee n u nq u a l i f i e d , he nc e
w it ho u t p r e ju d ic e , i t does not const it ut e an adjudicat io n
on the mer it s since this rule in Sec. 2, Rule 17 applies
not only to a complaint but also to a count erclaim which
part akes of the nat ure of a complaint . This is aside from
the considerat ion t hat , since the dismissal of the
count erclaim was premised on the postulat e t hat for non-
payment of the docket fee the court did not acquire
jur isdict ion t hereover, t hen with much more reason can
t her e be no invocat ion of res judicata, not to speak of the
fact t hat it was error for the t r ia l Co ur t t o or de r suc h
d is m i s s a l s ince the payment of docket fees is required
only for permissive,

189
RUL E 9 R E M E D I A L LA W C O M P E N D I U M SE C . 3

not compulsory, counterclaims (Meliton vs. CA, et al.,


G.R. No. 101883, Dec. 11, 1992).

Sec. 3. Default; declaration of. — If the d e f e n d i n g


p art y fai l s t o a n s w e r w i t h i n the t i m e a l l o w e d
t h e r e f o r , the C o u rt s h a l l , u p o n m o t i o n o f the
c la i mi n g p art y wit h n ot i ce to the d ef e n d i n g party,
and p roo f o f su c h fai lu re, d e c l a r e the d e f e n d i n g
party in d efau lt. Th e reu p on , the court shall p ro ceed
t o re n d e r j u d g m e n t g r a n t i n g the cl a i m a n t su c h
relief a s his p l e a d i n g ma y warran t , un le s s the cou rt
i n its d i s c r e t i o n req u i re s the c l a i m a n t t o su b mi t
e v i d e n c e . S u c h r e c e p t i o n o f e v i d e n c e ma y b e
d e l e g a t e d to the clerk of court, ( la , R18)
(a) Effect of order of default. — A p arty in d efau l t
shall be en t i t le d to n oti ce of s u b s e q u en t p ro c eed i n g s
but no t to tak e part in the trial. (2a, R18)
(b) Relief from order of default. — A party d ecla re d
in d efau l t ma y at an y tim e after n ot i c e t h e re o f an d
before j u d g me n t file a mot ion UNDER oat h to set
asi de the ord e r o f d efau l t upo n p rop e r s h o w i n g that
his f a i l u r e t o a n s w e r wa s du e t o f r a u d , a c c i d e n t ,
mi st a k e or e xc u s a b l e n e g l i g e n c e and that he ha s a
m e r i t o r i o u s d e f e n s e . I n su c h case , the ord e r o f
d e f a u l t ma y b e se t a s i d e o n s u c h t e r m s an d
c o n d i t i o n s a s the j u d g e ma y i mp os e i n the i n t eres t
of j u st i ce . (3a, R18)
(c) Effect of partial default. — Whe n a p le ad i n g
a s s e rt i n g a clai m st at e s a com mo n cau s e of act i o n
a g a i n s t seve ra l d e f e n d i n g p art i es , som e o f wh o m
a n s w e r and the ot h er s fail to do so, the Cou rt shall try
the cas e agai n s t all upo n the a n s w e r s th u s filed and
ren d e r j u d g m e n t upo n the e v i d e n c e p re s e n t e d . (4a,
R18)

190
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SE C . 3

(d) Extent of relief to be awarded. — A j u d g m en t


ren d e red agai n s t a party in d efau lt shall not excee d
the amou n t or be d i fferent in kind from that prayed
for nor awar d u n li q u i d at e d d amages . (5a, R18)
(e) Where no defaults allowed. — If the d e f e n d i n g
party i rfan act i on for a n n u l m e n t or d ecla rat i on of
nullity of ma rri ag e or for legal sep a rat i on fails to
a n s w e r , the Cou rt sh a l l o rd e r the p r o s e c u t i n g
at t orn ey to i n ve st i g at e wh e t h e r or not a col lu si on
b e t w e e n the p a r t i e s e x i s t s , an d i f t h e r e i s n o
col lu si on , to i n t e rv en e for the State in order to see
to i t that the evi d e n c e su b mi t t e d i s not fab ri cated.
(6a, R18)

' ' ^ N O T E S ' " —

1. An order of default should be dist inguished from


a judgment by default. An order of default is issued by
the court, on pla int iffs motion and at the st art of the
pr o ceeding s, for failur e of t he de fe nda n t to file his
responsive pleading seasonably. It is only t hereaft er,
when the evidence for the plaint iff has been received ex
parte, that the court renders a judgment by default on
the basis of such evidence.
2. This section provides for the ext ent of the relief
t hat may be awarded in the judgme nt by default, i.e.,
only so much as has been alleged and proved. The court
acts in excess of jur isd ict io n if it awards an amo un t
beyond the claim made in the complaint or beyond t hat
proved by the evidence. Furt her mor e, as amended, no
unliquidat ed damages can be awarded and said judgment
shall not exceed the amo unt or be different in kind from
that prayed for. If the claim is not proved, the case should
be dismissed (Pascua, et al. us. Florendo, et al., L-38047,
April 30, 1985).

191
RUL E 9 R E M E D I A L LA W C O M P E N D I U M SE C . 3

3. Failur e to file a responsive pleading wit hin the


r eg le me nt ar y period, and not failure to appea r at the
hear ing, is the sole ground for an order of default (Rosario,
et al. vs. Alonzo, et al, L-17320, June 29, 1963), except
the failure to appear at a pre-t ria l conference wher ein t he
effects of a de fau lt on the par t of t he de fe nd a n t are
followed, t hat is, the plaint iff shall be allowed to pr esent
evidence ex parte and a judgment based t hereon may be
r ender ed against the defendant (Sec. 5, Rule 18). Also,
a default judg ment may be rendered, even if t he defendant
had filed his answer, under t he c ir cu mst ance in Sec. 3(c),
Rule 29.

4. The court cannot motu proprio declare a defen•


dant in default (Viacrusis vs. Estenzo, L-18457, June 30,
1962; Trajano, et al. vs. Cruz, et al, L-47070, Dec. 29,
1977). T her e mus t be a mot ion to t hat effect by t he
plaint iff wit h proof of failure by the de fe nda nt to file
his responsive pleading despit e due notice (Soberano vs.
MRR Co., L-19407, Nov. 23, 1966; Sarmiento vs. Juan,
G.R. No. 56605, Jan. 28, 1983). Former ly, the defendant
did not have to be served wit h notice of the mot ion to
have him declared in default (Pielago vs. Generosa, 73
Phil. 634, based on Sec. 9, Rule 27 of the old Rules and
reproduced subst ant ia l l y in Sec. 9, Rule 13; De Guzman
vs. Santos, et al, L-22636, June 11, 1970, cit ing Duran
vs. Arboleda, 20 Phil. 253; Inchausti & Co. vs. De Leon,
24 Phil. 224; Monteverde vs. Jaranilla, 49 Phil. 297;
Manila Motor Co. vs. Endencia, 72 Phil. 130; The Phil.
British Co., Inc., et al. vs. Delos Angeles, etc., et al, L-33720-
21, Mar. 10, 1975). An i mpo r t a n t change has been
effected by t he pr e se nt a me nd me nt s in the sense t hat an
order of default can be made only upon mot ion of t he
claiming part y and wit h the corresponding notice to the
defending part y.
On the ot he r hand , UNDE R t he rule on s u m m a r y
procedure, no default order is rendered or required as a
motion to declare the defendant in default is prohibit ed;

192
RULE 9 EFFECT OF FAILURE TO PLEAD SEC. 3

and a default judgment may be rendered by the court


motu proprio or on motion of the party assert ing the claim.
5. The defendant who files his answer in court in
time but failed to serve a copy thereof upon the adverse
part y may validly be declared in default (Gonzales vs.
Francisco, 49 Phil. 747; Banares vs. Flordeliza, et al., 51
Phil. 786).

6. . The fact t hat t he defe nda nt was d eclar ed


in default is of no mo ment when the plaint iff would
not have been ent it led to relief since his complaint did
not state a cause of action, hence the same should be
dismissed (Reyes vs. Tolentino, et al., L-29142, Nov. 29,
1971).

7. It is wit hin the discret ion of the trial court to set


aside an o r de r of defau l t and per m i t t he filing of
d e fe nd a nt ' s ans we r even be yo nd t he r e g l e m e nt a r y
period, or to refuse to set aside the default order where it
finds no just ificat ion for the delay in the filing of the
answe r (Malipod vs. Tan, L-27730, Jan. 21, 1974).
However, defendant ' s answer should be admit t ed where
it was filed before he had been declared in default and
no prejudice could have been caused to plaint iff, as
default ju dg me nt s are generally disfavored (Trajano,
et al. vs. Cruz, et al, supra). Where the answer is filed
beyond the r egle ment ar y period but before the defendant
was declared in default, and t here is no showing t hat
defendant int ended to delay the case, the answer should
be admit t ed (Cathay Pacific Airways, Ltd. vs. Romillo,
etc., et al, G.R. No. 64276, Mar. 4, 1986). Also, where
the failure of defendant to seasonably file her answer
is excusable and the lifting of the default order will not
in any way prejudice plaint iff's subst ant ial right s, the
court should apply the Rules liberally and set aside the
default order (Santos vs. De la Fuente Samson, et al, L-
46371, Dec. 14, 1981; cf. Akut vs. CA, et al, L-45472,
Aug. 30, 1982; Azul, et al. vs. Castro, et al, G.R.
No. 52241, Nov. 19, 1984).
193
RUL E 9 R E M E D I A L LAW COMPENDIU M SE C . 3

8. A mot ion to lift an order of default should be


under oath or verified and accompanied by an affidavit of
mer it s. The r e qu ir e me nt s of Sec. 3 of t his Rule are
pract ically ident ical to those of Sec. 3, Rule 38 (The Phil.
British Co., Inc. vs. De los Angeles, etc., et al., supra;
Claridad, et al. vs. Santos, et al., L-29594, Jan. 27, 1983).
However, if t he mot ion to lift the order of default is
grounded on the very root of the proceedings, i.e., invalid
service of summo ns on the defendant , affidavits of mer it s
are not necessary (Ponio vs. IAC, et al., G.R. No. 66782,
Dec. 20, 1984).
Also, if the motion to lift an order of default is under
oat h and cont ains the reaso ns for the failure to answer,
as well as the prospect ive defenses, a s epar at e affidavit
of mer it s an d a ver ificat io n ar e not nec e s sar y (Lim
Tanhu, et al. vs. Ramolete, et al, L-40098, Aug. 29, 1975;
Azul, et al. vs. Castro, et al., supra).

9. Where a motion to lift an order of default is denied


and a mot ion for the reconsiderat io n of said denial order
is filed based on su bst ant ia l l y t he same grounds, said
motion for reconsider at ion is not pro forma as it is directed
against an int er lo cut ory, an d not a final, order and the
reit erat ion of the same grounds seeks a second look by the
court on the mer it s of said grounds (BA Finance Corp. vs.
Pineda, et al., G.R. No. 61628, Dec. 29, 1982).

10. The mot ion to lift the order of default, aside from
the r equ ir e me nt s in Sec. 3 of this Rule, must furt her show
t hat t he defe nda nt ha s a mer it o r io us defense or t hat
s o m e t h i n g would be ga ine d by ha vin g the o r de r of
default set aside (Carandang vs. Cabatuando, et al., L-
25384, Oct. 26, 1973). Ot herwise, and if the motion is not
acco mpanied by affidavits of mer it s, it may properly be
denied (Ong Peng vs. Custodio, L-14911, Oct. 26, 1961; The
Phil. British Co., Inc., et al. vs. De los Angeles, etc., et
al., supra).

194
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SEC . 3

11. . The former rule was t hat where a part y


had moved to set aside the order of default, he was
ent it led to copies of all p le a d i ng s and or der s filed
and issued t hereaft er. If he had not done so, he was
still ent it led to be served with copies of subst ant ially
amended or sup• plement al pleadings, as well as final
orders or judgment s. The qualificat ions were rat ionalized
as follows:
He mus t be served wit h a me nded p le adings and
supple ment al pleadings as he may be ent it led to plead
t hereto. Thus, if the defendant was declared in default
upon an original complaint , the filing of t he amended
co mplaint r esu lt ed in t he w it hdr a wa l of the or ig ina l
complaint , hence the defendant was entit led to file an
answer to the amended complaint as to which he was not
in default. If the supple me nt al pleading int roduced new
claims, he was ent it led to plead t hereto as jurisdict ion had
not been acquired over him in respect thereof.
He had to be served with a copy of the judgment by
default as he had the right to appeal therefrom and in
said appeal he may, aside from att acking the propriet y
of the relief t herein awarded, assign as error the order of
the court declar ing him in default, or refusing to set
aside such order, or denying a motion for new trial as
the case may be.
This wa s bec aus e t he n Sec. 2 of Rule 18 r ead:
"Except as provided in Sect ion 9 of Rule 13, a part y
declared in default shall not be ent it led to notice of
subsequent proceedings, nor to take part in t he trial."
This rule wa s co ns ider ed too har sh , hence, as now
amended, par. (a) of t his section simply provides t hat
while a part y in default cannot take part in the trial, he is
nonet heless ent it led to notice of subsequent proceedings
wit hout the qualifications under the former pract ice.
12. If the court sets aside the order of default, the
defendant is restored to his st anding and rights in the
action. However, proceedings already taken are not to
195
RUL E 9 R E M E D I A L LAW COM PENDIU M SE C . 3

be dist urbed (Jaime vs. Maniego, 101 Phil. 828), alt hough
it is wit hin t he discret ion of the court to re-open the
evide nc e s u b m it t e d by the pla int iff an d ena bl e the
defendant to challenge the same, as by cross-examinat io n
of plaint iff' s w it ne ss es or int r o ducing co u nt er va i l i ng
evidence (see Denso [Phil.], Inc. vs. IAC, et al., G.R.
No. 75000, Feb. 27, 1987). The lifting of an order of default
does not revert the case to its pre-trial st age, much less
render a second pre-trial mandat ory (DBP vs. CA, et al., L-
49410, Jan. 26, 1989).

13. Under the former procedure, and the same would


hold t rue under the pr esent amended Rules, the alt er•
nat iv e and succe ss ive r e me d ie s of a par t y pr o per l y
declared in default in the former Court of First Inst ance
were: (1) He may file a verified motion to set aside t he
order of default at any time after discovery t hereof and
before judg me nt ; (2) If he did not file one or the same
was denied, he could file a motion for new trial at any
time after service of judgment by default and wit hin 30
days t herefrom; (3) If he failed to file said mot ion or the
same was denied, he could perfect his appeal from and on
the mer it s of said judg me nt by default wit hin t he balance
of said 30-day period; and (4) If he failed to t ake any of
such st eps, he could file a pet it ion for relief from judgme nt
wit hin 60 days from notice of the judg m ent but wit hin 6
mo nt hs from ent r y thereof (see Lina vs. CA, et al., G.R.
No. 62397, April 9, 1985).
It should be noted, however, t hat under B.P. Blg. 129
and t he I nt er im Rules, the r egle ment ar y period to appeal
has been uniformly set at 15 days, except in habeas corpus
cases for which t he 48-hour period has been maint ained,
and in specia l pr o ceedings or cases wher e i n mu lt ip le
appeals are per mit t ed and in which cases the r egle ment ar y
period is still 30 days. Considering the fact t hat the period
for filing a motion for new t rial is cot ermino us wit h the
r egleme nt ar y period for appeal, the 30-day periods for the
seco nd an d t hir d r e me d ie s above st at e d would now

196
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SEC . 3

apply only to special proceedings and cases suscept ible of


mult iple appeals, with the first and fourth remedies being
available as before. In all ot her civil act ions, all the
abovest at ed remedies from a default judgment are still
available, it being understood, however, that the remedy
of new t rial and appeal should now be availed of wit hin
15 days from receipt of the judgment by default.

14. Where however, the defendant was improperly


declared in default, as where the reglement ar y period to
answer had not yet expired, he can, if such default order
is not lifted, elevat e the mat t e r by cert iorar i wit hout
wait ing for the default judgment (Viacrusis vs. Estenzo, L-
18457, June 30, 1962; Pioneer Insurance & Surety Corp.
vs. Hontanosas, L-35951, Aug. 31, 1977). If a default
judg ment was already rendered, he can also resort
immediat ely to cert iorari as his challenge is on the nullit y
of both the order and the judgment by default and not
on the mer it s or correct ness of the judgment (Matute vs.
CA, et al., L-26751, Jan. 3, 1969), especially where a writ
of execut ion was already issued, hence appeal would not
be a speed y and adequ at e remed y (Omico Mining &
Industrial Corp. vs. Vallejos, et al., L-38974, Mar. 25,
1975; Zenith Insurance Corp. vs. Purisima, et al., G.R.
No. 57535, May 24, 1982).
15. It has also been held t hat while, as a general
rule, cert iorari may not be availed of where an appeal is
available and an appeal lies from a judgment by default,
nevert he less if t here was grave abuse of discret ion on the
part of the trial court, the special civil action of cert iorari
may be availed of by the aggr ieved part y as this is an
except ion to said general rule. Cert iorari would provide a
more speedy and adequat e remedy since the aggrieved
part y in a default judgment had no opportunit y to adduce
evidence in the trial court; hence, on appeal, only the self-
serving evidence present ed by the plaintiff in the ex parte
reception thereof would be considered (Continental Leaf

197
RUL E 9 R E M E D I A L LA W C O M P E N D I U M SE C . 3

Tobacco [Phil.], Inc. vs. CA, et al., G.R. No. 69243,


Nov. 22, 1985).
16. A pet it io n for relief from the order of default
may be filed at any t ime after discovery of the default
order and before judgme nt (Turqueza vs. Hernando, etc.,
et al., G.R. No. 51626, April 30, 1980). Said order of
default , however, is not appealable as t he same is an
int er lo cut or y order (Vda. de Hoyo-a, et al. vs. Virata,
et al., G.R. No. 71171, July 23, 1985) and the same is t rue
wit h an order denying a motion for the r eco nsider at io n
of the default order.

17. I t ha s also been held, ho wever, t hat while a


default order, being int er locut ory, is not appealable, an
order denying a pet it io n for relief, seeking to set aside
an o r de r of defau lt , i s not mer e l y i n t er lo c ut o r y bu t
final and, t her e fo r e, appea la ble (Rodriguez, et al. vs.
IAC, et al, G.R. No. 74816, Mar. 17, 1987).

18. It should not be overlooked t hat par. (c) of t his


sect io n, which e nu nc iat e s t he rule on par t ia l default ,
does not apply wher e t he defending part ies are joint ly
sued or imp leaded UNDE R separ at e causes of act ion. I t
co nt emp lat es a claim or suit upon a commo n cause of
act ion aga inst sever al defending par t ies at least one of
whom files an answer while t he ot hers are in default.

19. If t he a nswer ing defendant succeeds in defeat ing


the plaint iff s claim, such result inur es also to the benefit
of the default ing defendant s (Velez vs. Ramos, 10 Phil.
788; Bringas vs. Hernando, G.R. No. 51933, Sept. 24,
1986).

20. . Wher e a co - de fe nda n t who filed hi s


a ns w e r died and the case was dismissed as to him, t he
answer he filed does not inur e to the benefit of the
defendant who did not file his own answer. Neit her will
the rule apply w he r e t he d e fe ns e s a l le g e d b y the
d e f e n d a n t wh o

198
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SEC . 3

answered are personal to him (Luzon Surety Co., Inc. us.


Magbonuo, et al., L-43851, July 30, 1976).

21 . The defendant who failed to answer shall be


declared in default and is deprived of the right to take
part in the trial and, in effect, he submit s to what ever
decision may be rendered on the basis of the answer and
evidence adduced by the answer ing co-defendant (Lim
Tanhu us. Ramolete, etc., et al., L-40098, Aug. 29, 1975;
cf. Co us. Acosta, et al, G.R. No. 64591, Jan. 17, 1985).

22. There is no provision of the Rules disqualifying


a part y declared in default from t aking the wit ness stand
for his co - de fe nd a nt s. The specific e n u me r a t io n of
disqua lifie d w it ne s s e s exc ludes the operat io n of the
causes of disabilit y ot her t ha n to those ment ioned in
Secs. 19, 20 and 21 , Rule 130. The provision of t hen
Sec. 2, Rule 18 to the effect t hat "a part y declared in
default shall not be ent it led to notice of su bseque n t
proceedings nor to take part in the trial" (now, par. [a]
of this sect ion, as amended) means only the forfeiture of
the default ing part y' s right s as a party lit igant and not
a disqualificat ion from merely test ifying as a wit ness.
The incident al benefit of giving the party in default the
opport unit y to pr esent evidence which may event ually
redound to his advant age, t hrough his co-defendants, is
of minor consequence. There is no reason why the non-
d e f a u l t i n g d e f e n d a n t s sho ul d be depr ive d of the
test imony of the part y in default and thereby also suffer
the co nsequences of the lat t er ' s pro cedur al omissio n
(Cauili, et al. us. Florendo, et al., G.R. No. 73039, Oct. 9,
1987, and cases jointly decided therein).

23. . Under par. (c) of this section, when a


common cause of action is alleged against several
defendant s, two of whom seasonably filed their answers
while the others were declared in default, the answers of
the former inure to the benefit of t he lat t e r and all
the d e fe nd a nt s ,

199
RUL E 9 R E M E D I A L LAW COMPENDIU M SE C . 3

default ed and not default ed, share a common fate in the


action. It is not within the aut horit y of the trial court to
divide the case before it by first dismissing the same, on
mot io n of t he plaint iff, as aga ins t t he no n- de fau lt e d
defendant s and t hereaft er hearing it ex parte as against
the d e fa u lt e d d e f e n d a n t s and r e n d e r i n g a de fa u l t
judg ment against t hem. This is an unfair procedure and
depr ives t he default ed de fe nda nt s of due pro cess as
they are t hereby denied the benefit of the answer and the
evidence which could have been present ed by t heir non-
default ed co -defendant s, and which could be considered
in favor of all. Furt her, said order of dismissal divested
the t rial court of the jur isdict io n to proceed with the case
since all the defendant s are obligors in solidum, hence
indispensable part ies (Lim Tanhu, et al. us. Ramolete, etc.,
et al., supra).

24. . The p e r t i n e n t pr o vis io n s of the Civil


Code provided as follows—
"Art. 88 . No judg me nt annulling a mar r iage shall
be pr o mu lg at e d upon a st ipu lat io n of facts or by
confession of judg ment .
In case of no n- appearance of the defendant the
pr o v is io n s of ar t ic l e 101 , p a r a g r a p h 2 , shal l be
observed."
"Art. 101. No decree of legal separat ion shall be
p r o m u l g a t e d upo n a s t i p u l a t i o n of fact s or by
confession of judgment .
In case of no n- appear ance of the defendant, the
court shall order the prosecut ing at t orney to inquire
whet her or not a collusion bet ween the part ies exist s.
If t here is no collusion, the prosecut ing at t or ney shall
int er vene for the St at e in order to t ake care t hat the
evidence for the plaint iff is not fabricated."
and, UNDE R the said Code, every collusion to obt ain a
decree of legal separ at io n or of annu l m e nt of mar r iage

200
RUL E 9 E F F E C T O F F AI L U R E T O P L E A D SEC . 3

was void and of no effect (Art. 221).


The int er vent io n of the prosecut ing at t orney was,
therefore, proper and required where the defendant does
not answer or, even if he has answered, he does not appear
personally or by counsel at the trial.
The equivalent provisions of the Family Code are to
this effect:
"Art. 48. In all cases of a nnu lment or declarat ion
of absolute nullit y of marr iage the court shall order
the prosecut ing at torney or fiscal assigned to it to
appear on behalf of the St at e to take steps to prevent
collusion bet ween the part ies and to take care t hat
evidence is not fabricated or suppressed.
I n the case s r e fe r r e d t o i n the p r e c e d in g
p a r a g r a p h , no ju d g me n t shall be based upon a
st ipulat io n of facts or confession of judgment ."

"Art. 60. No decree of legal separat ion shall be


based upon a st ipulat io n of facts or a confession of
judg ment .
In any case, the court shall order the prosecut ing
attorney or fiscal assigned to it to take steps to prevent
collusion bet ween the part ies and to take care t hat
the evidence is not fabricated or suppressed."
25. . A default judgment rendered in an
annu lme nt case, even if procedurally erroneous, is
nevert heless a valid judg ment (De la Cruz vs. Ejercito, L-
40895, Nov. 6, 1975).

201
RULE 10

AM ENDED AN D S UPPLEM ENTA L P LE A DI NG S

S ect i o n 1. Amendments in general. — P l e a d i n g s


ma y b e a m e n d e d b y a d d i n g o r s t r i k i n g ou t a n
a l l e g a t i o n o r the n a m e o f an y p a r t y , o r b y
c o r re c t i n g a mi st a k e in the nam e of a part y or a
m i s t a k e n o r i n a d eq u at e al l ega t i o n o r d e s c ri p t i o n
in an y ot h e r resp ect , so that the act u a l meri t s of
the c o n t r o v e r s y ma y s p e e d i l y b e d e t e r m i n e d ,
w i t h ou t regar d t o t e c h n i c a l i t i e s , an d i n the mos t
e xp e d i t i o u s and i n e xp e n s i v e man n e r . (1)

Sec. 7. Filing of amended pleadings. — Whe n an y


p l e a d i n g i s a m e n d e d , a ne w cop y o f the e n t i r e
p l e a d i n g , i n c o r p o r a t i n g the a m e n d m e n t s , w h i c h
shall be i n d i cat e d by ap p rop ri at e m arks , sh all be
filed. (7a)

NO TES

1. Ame nd me nt s to a pleading should be indicated in


the amended pleading, as by underscor ing, enclosing t hem
in quot at ion marks, put t ing t hem in capit al let t ers, and
so forth, as would make t hem readily evident .

2. . The amended plead ing super sedes the


original p lead in g which i s dee me d w i t hd r a w n and no
lo nger const it ut es part of the record. However, the filing
of the a me nded pleading does not ret roact to the dat e
of the filing of the original, hence, the st at ut e of
limit at ions runs unt il the filing of the a me nd me n t
(Ruymann, et al. vs. Director of Lands, 34 Phil. 429). But
an a me nd me n t which merely supple me nt s and amplifies
facts originally alleged in the complaint relat es back to
the dat e of the co mme nce me nt of the act ion and is not
bar r ed by the

202
RUL E 10 A M E N D E D AN D S E C S . 1, 7
SU P P LEM EN T A L PLEADING S

st at ut e of limit at ions which expired after the service of


the original complaint (Panay Electric Co. vs. CA, et al.,
G.R. No. 59647, Dec. 11, 1982). It is the actual filing in
court t hat co nt ro ls, and not t he dat e of t he for mal
admission of the amended pleading (Republic vs. Marsman
Dev. Co., L-18956, April 27, 1972).

3. Where t he original complaint st at es a cause of


act io n bu t does i t i mp er fe ct l y , an d a ft e r w a r d s an
ame nded compla int is filed correct ing the defect, the
plea of prescr ipt io n will relat e to the time of the filing of
the original complaint (Pangasinan Trans. Co. vs. Phil.
Farming Co., Ltd., 81 Phil. 273). However, such rule
would not apply to the part y who was impleaded for the
first time in the amended complaint which was filed after
the period of prescript ion had already lapsed, hence t he
amended complaint must be dismissed as to such part y
who was t hus belatedly included in the action (Aetna
Insurance Co. vs. Luzon Stevedoring Corp., L-25266,
Jan. 15, 1975; Seno, et al. vs. Mangubat, et al., L-44339,
Dec. 2, 1987).

4. The rule is t hat amend ment s should be liberally


allowed (Cese vs. GSIS, 109 Phil. 306). This liberalit y at
the out set of the action decreases as the case moves to its
t erminat ion (Salvador vs. Frio, L-25352, May 29, 1970).
However, a me nd me nt s to pleadings may be per mit t ed
even for the first time on appeal if, wit hout changing the
cause of action or causing unfair prejudice to the other
part y, the pur po se is to (a) correct a defect of part y
plaintiff, as where it is merely to include the husband of
the plaint iff wife (Cuyugan vs. Dizon, 79 Phil. 81); or
(b) su bst it ut e the name of the real part y in int er est
(Palacio vs. Fely Trans. Co., L-15121, Aug. 31, 1962; Chua
Kiong vs. Whitaker, 46 Phil. 578; Alonso vs.Villamor, 16
Phil. 320). Thus, since a sole proprietorship is a business
organizat io n wit ho ut jur idical per so nalit y to sue, an
amendment to subst it ut e the owner thereof as plaint iff

203
RUL E 10 R E M E D I A L LA W C O M P E N D I U M SE C . 2

is only a for mal a m e nd m e n t (Juasing Hardware vs.


Mendoza, et al., G.R. No. 55687, July 30, 1982). These
are aut hor ized as formal a me nd me nt s under Sec. 4 of
this Rule.

Sec . 2. Amendments as a matter of right.—A party


ma y a m e n d hi s p l e a d i n g o n c e a s a m a t t e r o f
ri gh t a t an y t i m e b efo r e a r e s p o n s i v e p l e a d i n g
i s se rv e d or, in the cas e of a rep ly , at an y t i m e
wi t h i n te n (10) day s after i t i s served . (2a)

NO TES

1. Ame nd me nt for the first time is a mat t e r of right


before a responsive pleading is filed or, in the case of a
reply, w it hin 10 days aft er i t was ser ved. Ho wever,
a m e n d m e n t for the second or subsequent t im e mus t
always be wit h leave of court even before a responsive
pleading is filed or before the case is set in the ca lendar
of the court.
Where some but not all the defendant s have filed t heir
answer s, the plaint iff may amend his complaint , once as
a mat t e r of right , in respect to the claims assert ed only
against the no n- answer ing defendant s, but not as to the
claims asser t ed against the ot her defendant s who have
answer ed (Siasoco, et al., vs. CA, et al., 362 Phil. 525,
Republic vs. Africa, et al, G.R. No. 172315, Aug 28, 2007).

2. Even aft er a mot ion to dismiss has been filed by


de fe nda nt (Paeste vs. Jaurigue, 94 Phil. 179) or such
mot ion has been submit t ed for decision (Republic vs. Ilao, L-
16667, Jan. 30, 1962), the plaint iff can still a me nd his
co mplaint as a mat t e r of right , since a mot ion to dismiss
is not a responsive pleading wit hin t his rule. An error
of the court in refusing such a me nd me n t is controllable
by ma nd a mu s (Breslin, et al. vs. Luzon Stevedoring Co.,
et al, 84 Phil. 618; Ong Peng vs. Custodio, L-14911,

204
RUL E 10 A M E N D E D AN D SE C . 2
SU P P LEM EN T A L PLEADING S

Mar. 25, 1961; cf. Dauden-Hernandez vs. De los Angeles L-


27010, April 30, 1969).

3. Ame nd ment of the complaint may be allowed even


if an order for its dismissal has been issued as long as the
motion to amend is filed before the dismissal order became
final (Constantino vs. Reyes, L-16853, June 29, 1963). An
amended answer may also be allowed even after the case
had been set for trial on the mer it s if the purpose of the
amendment is to submit the real mat t er in dispute without
int ent to delay the action (Paman vs. Diaz et al., G.R.
No. 59582, Aug. 26, 1982; cf. Sec. 3 of this Rule).

4. It has also been held t hat a complaint can still be


amended as a mat t e r of right before an answer t heret o
has been filed, even if t here was a pending proceeding in
a higher court for the dismissal of t hat complaint.
Under Sec. 3 of Rule 10, subst ant ial a me nd ment s of
the complaint are not allowed wit hout leave of court after
an answ e r has been ser ved, and t his is because any
mat erial change in the allegat ions in the complaint could
prejudice the de fe nd a n t who ha s alr eady set up his
defenses in his a nswer. Conver sely, no r ight s of t he
de fe nda nt will be vio lat ed by cha nge s mad e in t he
complaint if he has yet to file an answer t hereto. The
defendant has not pr esent ed any defense t hat can be altered
or affected by an amend me nt made in accordance with Sec. 2
of the Rule. In fact, he can t hereaft er address the amended
allegat ions by setting up the defenses thereto in his
project ed answe r (Remington Industrial Sales Corp. vs.
CA, et al, G.R. No. 133657, May 29, 2002).

5. The defense of prescr ipt ion, which was not raised


in a motion to dismiss nor as an affirmative defense in
the original answer, may be validly set up for the first
time in an amended answer. This situat ion would not be
violative of, because it does not fall under, the general
rule in t hen Sec. 2 (now, Sec. 1), Rule 9. The effect of the

205
RUL E 10 REMEDIA L LAW C O M PEN D IU M S E C S . 3- 4

filing of the amended answer is the wit hdr awal of the


original answer and its subst it ut ion by the former. Since
in t his case no responsive pleading, such as a reply,
had been filed by the plaint iff and the case had not
been ca le ndar ed for hear ing, the de fe ndant had the
right to amend his answer, pur suant to Sec. 2, Rule 10,
and in the process set up the defense of prescr ipt io n
(Aznar III, et al. vs. Bemad, etc., et al., G.R. No. 81190,
May 9, 1988).

Sec . 3. Amendments by leave of court. — E xc e p t


a s p r o v i d e d i n t he ne x t p r e c e d i n g s e c t i o n ,
s u b s t a n t i a l a m e n d m e n t s ma y b e ma d e onl y upo n
lea v e of co ur t . Bu t suc h leav e ma y be r e fu s e d i f
i t a p p e a r s t o t he Co u r t t hat t he mo t io n wa s mad e wit
h i nt e n t t o dela y . O r d e r s o f t he Co ur t upo n t he m a t t e r s
p r o v i d e d i n t hi s se ct io n shal l b e mad e upo n mo t io n
filed i n co ur t , an d aft er not ic e t o t he a d v e r s e p a r t y , an
d a n o p p o r t u n i t y t o b e he a r d . (3a)

Sec . 4. Formal amendments. — A de fe c t in t he


d e s i g n a t i o n o f t he p a r t ie s an d o t he r c le ar l y c le r ic a l
o r t yp o g r a p h i c a l e r r o r s ma y b e s u m m a r i l y c o r r e ct e d
b y t he C o u r t a t an y s t a g e o f t he a c t i o n , a t it s
i n i t i a t i v e o r o n mo t io n , p r o v i d e d n o p r e j u d i c e i s
c a u s e d t he r e b y t o t he a d ve r s e par t y . (4a)

NOT E S

1. Sec. 3 of this Rule amended the former rule by


elim inat ing the phr ase "or t hat the cause of act ion or
defense is subst ant ia l l y alt ered." The clear import of
suc h a m e n d m e n t i s t hat UNDE R the new Rule "t he
a me nd me nt may (now) subst ant ia lly alt er the cause of
action or defense." This should only be true, however,
when despit e a subst ant ia l change or alt erat ion in the
cause of action or defense, the amend me nt s sought to be
made shall serve the higher interests of subst ant ial justice,

206
RUL E 10 A M E N D E D AN D S E C S . 3- 4
SU P P LEM EN T A L PLE ADING S

pr event delay and t hu s equally promote the laudable


objective of the Rules which is to secure a "just, speedy
and i ne x p e n s i v e d i s p o s it io n of ever y act io n an d
p r o c e e d i ng " (see Valenzuela, et al. vs. CA, et al.,
G.R. No. 131175, Aug. 28, 2001). Philippine Ports
Authority vs. William Gothong, etc., Inc., G.R. No. 158401,
Jan. 28, 2008).

2. Amendment s are not proper and should be denied:


a. Where t he court has no jur isd ict io n over the
original complaint and the purpose of the amend ment is
to confer ju r i s d i c t io n on the Court by e l i m i n a t i n g
the object ionable portion (Rosario, et al. vs. Carandang,
et al., 96 Phil. 845), or wher e the caus e of act io n
origina lly p leaded in t he co mpla int was o ut side t he
jurisdict ion of the court (Versoza vs. Versoza, L-25609,
Nov. 27, 1968; Campos Rueda Corporation vs. Bautista,
et al., L-18453, Sept. 29, 1982), since the court must
first have jur isdict ion over the case before it can order
such amend me nt (Caspar vs. Dorado, L-17884, Nov. 29,
1965);
b. If it would result in delay (Lerma vs. Reyes, etal.,
103 Phil. 1027; Sec. 3 of this Rule);
c. If it would result in a change of the cause of action
or defense or change the t heory of the case (Torres vs.
Tomacruz, 49 Phil. 914; Sec. 3 of t his Rule), or are
i n c o n s i s t e n t wit h the a l l e g a t io n s i n the o r ig i na l
complaint (Castillo, et al. vs. CA, et al., G.R. No. 52008,
Mar. 25, 1988), unless just ice and equit y warr ant such
a me nd me n t which would negat e defendant ' s liabilit y
(R&B Insurance Co., et al. vs. Sauellano, et al., L-45234,
May 8, 1985), or will not result in su bst a nt ia l injury
to the adverse part y (Marini-Gonzales vs. Lood, et al.,
L-35098, Mar. 16, 1987); and
d. If the plaint iff had no cause of action at the filing
of the original complaint and the purpose of the amend-

207
RUL E 10 REMEDIA L LAW COMPENDIU M SEC . 5

ment is to int roduce a subsequent ly- accr ued cause of


action (Surigao Mine Exploration Co. vs. Harris, 68 Phil.
118).
3. To det ermine whet her a different cause of action
is int roduced by a mend me nt s to the complaint, what is
ascert ained is whet her the defendant is being required to
answe r for a liabilit y or legal o bligat io n co mplet el y
different from t hat st at e d in t he or ig ina l co mp la int
(Rubio vs. Mariano, et al, L-30404, Jan. 31, 1973). The
same t est may be applied with respect to suppleme nt al
pleadings.

4. As earlier st at ed, a plaint iff may move to amend


his complaint even if the same was dismissed on motion of
the defendant provided the dismissal order is not yet final.
An order denying such motion to amend the complaint is
appealable and the r egleme nt ar y period to perfect the
appeal runs from plaint iffs receipt of the order denying
his motion to amend the complaint (Constantino vs. Reyes,
supra).

Sec. 5. Amendment to conform to or authorize


presentation of evidence. —W h e n i ssu e s not rai sed by
the p l e a d i n g s are t ried wit h the exp res s or i mp li ed
c o n s e n t of the p art i es, they shall be t reat ed in all
re sp e ct s as i f the y had bee n rai sed in the p lea d i n gs .
S u c h a m e n d m e n t o f the p l e a d i n g s a s ma y b e
n e c e s s a r y to cau s e th e m to con form to the ev i d e n c e
and to raise t h es e i ssu e s may be mad e upo n moti on
of any party at any time, eve n after j u d g m en t ; but
fai lu re to amen d doe s not affect the resu lt of the
trial of t h es e i ssues . If evi d e n c e is obj ect ed to at
the trial on the grou n d that i t i s not wi t h i n the i ssu e s
mad e by the p lea d i n g s , the cou rt may allow the
p le ad i n g s to be amen d ed and shall do so wit h
li b e ra li t y i f the p re s e n t a t i o n of the me ri t s of the
act i o n and the end s of su b st ant i a l ju st i c e will be

208
RUL E 10 A M E N D E D AN D SEC . 5
SU P P LEM EN T A L PLEADING S

subserved thereby. The court may grant a continuance


to en ab l e the a m e n d m e n t to be made. (5a)

NOTES

1. This is an inst ance wherein the court acquires


jur isd ict io n over the issues even i f the same are not
alleged in the original pleadings of the part ies, i.e., where
the t r ia l of said issues is wit h the express or implied
consent of the part ies. Also, this rule is premised on the
fact t hat evidence had been introduced on an issue not
raised by the pleadings w it ho ut any object ion by t he
adverse part y. It, t herefore, does not apply when the
case was decided on a st ipu lat io n of facts in which
case the pleadings are not deemed amended to conform to
the evidence (MWSS us. CA, et al., G.R. No. 54526,
Aug. 25, 1986).

2. One line of cases holds t hat where the evidence


su st a i n s an awar d in excess of t hat claimed in the
complaint, but the plaint iff failed to amend the prayer
of its complaint as to the amount of damages to conform
to the evidence, the amount demanded in the complaint
should be the measure of damages [Malayan Insurance
Co., Inc. vs. Ma ni l a Por t S er vice, e t al., L- 23128 ,
Sept. 30, 1978; J.M. Tuason & Co. vs. Sant iago, 99 Phil.
615]. There have, however, also been cases where the
S u p r e m e C o u r t ha s held t hat even w it ho u t suc h
amendment to conform to the evidence, the amount proved
at the trial may be validly awarded [Tuazon vs. Bolanos,
91 Phil. 106]. The rule on amend me nt need not be applied
rigidly, part icular ly where no surprise or prejudice is
caused the objecting part y [Co Tiamco vs. Diaz, 75 Phil.
672] and where t here is a var iance in the defendant ' s
pleadings and the evidence adduced at the trial, the court
may t reat the pleading as amended to conform to the
evidence [Nat ional Power Corp. vs. CA, et al., L-43814,
April 16, 1982].

209
RUL E 10 REMEDIA L LAW COMPENDIU M SEC . 6

Consequent ly, the trial court should not be precluded


from awarding an amount higher t han that claimed in
the p le a d i ng s n o t w i t h s t a n d i n g the a bs e nc e of the
required amendment , provided t hat the evidence of such
higher amount has been present ed properly, wit h full
opport unit y on the part of the opposing part ies to support
t heir respect ive cont ent ions and to refute each ot her' s
evidence (Northern Cement Corp. us. IAC, et al., G.R.
No. 68636, Feb. 29, 1988).

3. Where the eject ment case was dismissed by the


inferior court and on appeal the plaint iff filed an amended
co mp la int to inc lude, as add it io na l cause of act ion,
c o nt r a ct u a l br each by t he de fe nda n t which was not
alleged in the original complaint but on which issue the
par t ie s had p r e s e nt e d t hei r r espect ive evidence, a n
amended complaint may be admitted since the amend ment
is to make the pleadings conform to the evidence (Dayao
us. Shell Co. of the Phil., Ltd., et al., L-32475, April 30,
1980).

Sec. 6. Supplemental pleadings. — Upo n mot i o n


of a party the cou rt may, upo n re a son a b l e noti ce and
upo n suc h t erms as are ju st, p ermi t hi m to serve a
s u p p l e m e n t a l p lead i n g set t i n g forth t ran sa ct i o n s ,
o c c u r re n c e s o r even t s wh i c h hav e hap p e n e d sin ce
the dat e of the p le ad i n g sou gh t to be s u p p l e m e n t e d .
The ad ve rs e party ma y plead t h e ret o wi t h i n ten (10)
d a y s fro m n o t i c e o f the o rd e r a d m i t t i n g the
s u p p l e m e n t a l p lead i n g. (6a)

NOTES

1. Dist inct ions bet ween amended and supple me nt al


pleadings:
a. Amended pleadings refer to facts exist ing at the
time of the commencement of the action; suppleme nt al

210
RUL E 10 A M E N D E D AN D SE C . 8
SUPP LEM ENT A L PLE ADING S

pleadings refer to facts ar is ing after t he filing of the


original pleading.
b. An amended pleading result s in the wit hdr awal
of the original pleading; a supplement al pleading is merely
in addit ion to, but does not result in the wit hdrawal of,
the original pleading.
c. An amended pleading can be made as of right, as
when no responsive pleading has yet been filed; supple•
ment al pleadings are always wit h leave of court.
2. Unlike the former provision wherein the court
could r e q u i r e the a d ve r s e par t y t o plea d t o the
supple ment al pleading if it deemed the same advisable,
it is now up to said part y to decide whet her or not to plead
thereto, provided t hat if he desires to plead he must observe
the r egle ment ar y period of 10 days therefor.

3. For cor relat io n, Sec. 7 of t his Rule has been


transposed to follow Sec. 1 thereof.

Sec . 8. Effect, of amended pleading. — An a m e nd e d


p l e a d i n g s u p e r s e d e s t he p l e a d i n g t hat i t a me n d s .
Ho we ver , a d m i s s i o n s i n s u p e r s e d e d p le a d i ng s ma y
b e r e c e i v e d i n e v i d e n c e a g a i n s t t he p le a d e r ; an d
c la i m s o r de fe ns e s a llege d t he r e i n no t i n c o r p o r a t e d
i n t he a m e n d e d p l e a d i n g s ha l l b e d e e me d wa ived ,
(n)

NOTE S

1. The first sentence of this section states, in general,


the effect on the original pleading by the subsequent filing
of a pleading amendatory thereof. See, however, Notes 2
and 3 under Sec. 1 of this Rule for the qualificat ions to
and ramificat ions of this general rule.
2. Alt hough the supersedure of the original plead•
ing, upon the admission of the amended pleading, amount s

211
RUL E 10 REMEDIA L LAW COMPENDIU M SEC . 8

to the wit hdrawal of the former, it is nevert heless not


expunged from but r emains in the record of the case.
Reference can t hereby be readily made t her et o wit h
r eg ar d t o the effect s of the a m e n d m e n t , t hat is,
(a) admissio ns in the superseded pleading can still be
received in evidence against the pleader, and (b) claims
or defenses alleged t her e i n but not inco r po r at ed or
reit erat ed in the amended pleading are deemed waived.
The first effect, t hat is, the admissibilit y in evidence
of what ever admission had been made by t he p leader
t herein is in line with the rulings on judicial ad missio ns.
It will be noted t hat the admission made in t hat pleading
was, before it was superseded by amendment , in the nat ure
of a jud ic ia l ad m is s io n which does not even r equ ir e
proof and o r d inar i l y ca nno t be co nt r ad ict e d by t he
pleader. Despit e its being superseded and wit hdr awn,
the admissions t herein are still considered ext rajudicial
ad m i s s io n s and may be proved by the part y relying
t her eo n by formal offer in evidence of such or ig ina l
pleading. See notes under Sec. 4 of Rule 129.

212
RULE 11

WHEN TO FILE RES PO NS IVE PLEADINGS

S ect i o n 1. Answer to the complaint. — The


d e f e n d a n t sh all file his an sw e r to the c o m p l a i n t
wi t h i n fifteen (15) day s after servi ce of su m mon s
u n les s a di fferent period is fixed by the cou rt, (la )

Sec. 2. Answer of a defendant foreign private


juridical entity. — Where the d e fe n d an t is a foreign
p ri vat e j u ri d i cal en tit y and servi ce of su m m on s i s
made on the g o v e rn m e n t official d esi g n at e d by law
to recei v e the same, the an swe r shall be filed with in
thirty (30) days after re cei p t of su mmon s by suc h
ent it y. (2a)

NOTES

1. In the case of a nonresident defendant on whom


ext r at er r it or ial service of summo ns is made, the period to
answer must be at least 60 days (Sec. 15, Rule 14).
2. The grant ing of addit ional time to the defendant
w it hin which to file an a nsw e r is a mat t e r lar gel y
addressed to the sound discret ion of the trial court (Naga
Dev. Corp. vs. CA, et al., L-28173, Sept. 30, 1971). Foreign
aut hor it ies are to the effect t hat while courts can extend
the time for filing of responsive pleadings, they can not
short en the time to do so (1 Martin 344, citing Aaron vs.
Anderson, 18 Ark. 268, 49 C.J. 200). This seems to be the
int endment of our rules, as the present Rule provides
for discret ion on the part of the court to extend the time
or allow pleadings filed after the reglement ar y period,
t hus —
"Sec. 11. Extension of time to plead. — Upon
motion and on such terms as may be just, the court

213
RUL E 11 REMEDIA L LAW COMPENDIU M SE C . 3

may ext end the t ime to plead provided in t hese


Rules.
The court may also, upon like t er ms, allow an
answer or other pleading to be filed after the time
fixed by these Rules. (8a)"
It is believed, however, t hat the discret ion of the court
to admit pleadings filed after the reglement ar y period has
expired does not extend to the steps necessary to perfect
an appeal which must all be done wit hin the reglement ar y
period, unless prior to its expirat ion an extension has been
sought and grant ed on just ifiable grounds.
3. A motion for extension of time to file an answer
may be heard and grant ed ex parte (Amante us. Sunga, L-
40491, May 28, 1975).
4. An order allowing the filing of a late answer is
i n t e r lo c u t o r y an d not a p p e a l a b l e (De Ocampo us.
Republic, L-19533, Oct. 31, 1963).

Sec. 3. Answer to amended complaint. — Wh er e


the p laint i ff files an amen d ed c o mp l ai n t as a matt er
of ri ght, the d e f en d an t shall an swe r the same wi t h i n
fi ft een (15) day s aft er b ei n g s e rv e d wit h a cop y
thereof.
Wh er e its fi li ng i s no t a mat t e r of ri gh t, the
d e f e n d a n t shal l a n s w e r the a m e n d e d c o m p l a i n t
w i t h i n te n (10 ) d ay s fro m n o t i c e o f the ord e r
a d m i t t i n g the same. An an swe r earli er filed may
serve as the an swe r to the ame n d ed com p la i n t i f no
ne w an sw e r i s filed.
Th i s Ru l e sh al l ap p l y t o the a n s w e r t o a n
amended counterclai m , amended cross-claim ,
am en d ed thi rd ( fou rth, et c. ) - p art y comp lai n t , and
am en d ed co mp l ai n t - i n - i n t e rv en t i on . (3a)

214
RUL E 11 W H E N T O FIL E SE C . 3
RESPON SI V E PLEADING S

NOTE

1. This amended sect ion, while adopt ing the period


provided by the former Rule for the filing of an answer
to an amended complaint , now makes clear the date from
which such period shall be reckoned. Thus, if the filing
of an amended complaint is a mat t er of right, as where
no answer has yet been filed to the original complaint,
no motion for leave or court order granting such leave
to file an amended complaint being involved, the 15-day
period to answer is counted from service of the amended
complaint. If t he filing of the amended complaint is not
a mat t er of right, t hen leave of court is required, hence
the 10-day period to answer runs from notice of the court
order grant ing the same. This simplified procedure has
been made possible by the new provisions in Rule 15,
t hat is, Sec. 9 thereof which provides t hat a motion for
leave to file such pleading shall be accompanied by t hat
pleading sought to be admit t ed, hence the defendant has
advance knowledge of t hat proposed amended complaint.
See notes under said Sec. 9.
The alt er nat ive practice under the old Rule was for
the pleader to file a motion for leave to amend his com•
plaint, at t aching t heret o the proposed amended pleading,
with copies of both furnished to the other part y. In such
a case, the period to file an answer to t hat amended
complaint commences after receipt of the order of the
court allowing the filing of such a me nded plead ing.
Where, however, a motion for leave to amend was first
filed and t hen, after the order grant ing the same, the
amended pleading was filed and served on the opposing
part y, the reglement ar y period st arted to run from service
of such amended pleading. Thus, Sec. 3 was understood
to mean t hat the period shall "run from notice of the
order admit t ing the amended complaint" or the service of
the latter, whichever is later. That procedure has been

215
RUL E 11 REMEDIA L LAW COMPENDIU M S E C S . 4-6 , 6

simplified by the aforesaid ame nd ment s, and has been


extended in applicat ion to the answer to other amended
init iat ory pleadings. See Sec. 7 of this Rule with respect
to a supplement al complaint.

Sec. 4. Answer to counterclaim or cross-claim. — A


c o u n t e r c l a i m o r c r o s s - c l a i m mu s t b e a n s w e r e d
wi t h i n ten (10) days from se rvi ce. (4)

Sec. 6. Answer to third (fourth, etc.)-party com•


plaint. — The time to an swe r a third (fou rth, etc.)-
party co m p la i n t shall be govern e d by the sam e ru le
as the an swe r to the comp lai n t . (5a)

NOT E S

1 . Jus t as pro vided in Rule 6 , the t hi r d - p a r t y


de fe nd a n t sha ll file his a nswe r alleg ing t her e i n his
defenses and his count erclaims and cross-claims against
the plaintiff, t he t hird-part y plaint iff or any other part y;
and he may a sser t such defenses as the t h ir d - p a r t y
plaint iff may have against the plaint iffs claim.

2 . The t h i r d - p a r t y d e f e n d a n t i s ser ve d wit h


summo ns just like the original defendant , hence he also
has 15, 30 or 60 days from service of summo ns, as the
case may be, to file his answer just like the or iginal
defendant .

Sec. 6. Reply. — A rep ly may be filed wi t h i n ten


(10) day s from se rvi ce of the p lea d i n g r e s p o n d e d
to. (6)

NOT E S

1. This section uses the word "may" as it is ordinar ily


optional for a part y to file a reply since, by his failure to
do so, all the new mat t er s alleged in the a nt ec ed e n t

216
RULE 11 WH E N T O FIL E SE C . 6
RESPON SI V E PLEADING S

pleading are deemed controvert ed. However, if he elects


to file a reply, he must observe the above period.
2. Where the last day of the reglement ar y period
falls on a Sunday or holiday, the pleading may be filed
or the r equir ed act may be done on the succeeding
business day. Alt hough pleadings may also be served
and filed by mail (Sec. 3, Rule 13), it has been held t hat
even if the Bur eau of Posts and its branches are open
on a holiday which is the last day for filing a pleading,
such pleading may still be filed on the next day (Galang
us. WCC, et al., L-33928, Mar. 29, 1972).

3. In the comput at ion of the reglement ar y period,


especially if it is int errupt ed by the filing of a pleading,
the dat e when the p lead ing is filed and the dat e of
r eceipt of the ju d g m e n t or order t her eo n are to be
excluded. Thus, when the motion for reconsiderat ion of
a judg ment is filed on the 15th or last day wit hin which
to perfect the appeal, t hat day should be excluded and
the part y st ill has one day to perfect an appeal. The
filing of said motion and the pendency thereof suspends
the r u nn in g of the r eg le me nt ar y period, unless said
mot ion is pro forma. Where, t her eaft er , an order is
received denying said motion for reconsiderat ion, the
date of such receipt is also not considered in the com•
put at ion. Thus, excluding such date of receipt and there
being a balance of one day of the reglement ar y period,
the appeal can be perfected on the working day following
the day of r ece ipt of the denia l order. This ruling
clarifies and sets aside the doctrines in Federal Films,
Inc. us. Judge of First Instance of Manila [78 Phil. 472]
and Taroma us. Cruz, et al. [68 Phil. 281] (Lloren us. De
Veyra, L-13929, Mar. 28, 1962).
The aforesaid doctrine in Lloren was reiterat ed and
declared applicable w het he r the mot ion for reconsi•
derat ion is filed days before or on the last day of the
reglement ar y period. Where such motion is filed, say,

217
RUL E 11 R E M E D I A L LAW C O M P E N D I U M SEC . 7

2 days before the end of the r eg le me nt ar y period of


appeal, the date of filing shall be added to the remaining
days of the period. As already st at ed, the pendency of
suchmot ion shall be deducted from, since it suspends, the
r e g l e m e n t a r y per io d unle s s i t fails to sat isfy the
r e q u i r e m e nt s of Rule 37 (Sec. 2). If the mot ion is
t hereaft er denied, the 3 remaining days of the period shall
st art to run again on the day after the receipt of the order
denying t he mot ion (De las Alas, et al. vs. CA, et al., L-
38006, May 16, 1978; Mayor vs. IAC, et al., G.R. No.
74410, May 4, 1988).

Sec . 7. Answer to supplemental complaint. — A


s u p p l e m e n t a l c o m p l a i n t ma y b e a n s w e r e d w it h i n
t e n (10) day s from no t ic e o f t he o r d e r a d m i t t i n g t he
sa me , u n le s s a d i f fe r e n t per io d i s fixed by t he co ur t .
The a n s w e r t o t he c o m p l a i n t s ha l l s e r v e a s t he
a n s w e r t o t he s u p p l e m e n t a l c o m p l a i n t i f n o ne w o r
s u p p l e m e n t a l a n s w e r i s filed, (n)

NOT E

1. This is a new provision which remedies the over•


sight in the old Rule which did not provide for an answer
to a supp le me nt a l co mp laint a lt ho ugh the allegat ions
t he r e i n may ver y well ne c e s s it a t e the a p p r o p r i a t e
response, clar ificat ion or denial. Since the filing of a
s u p p le me nt a l co mp la int r equ ir e s leave of court , t he
procedure for filing an answer t heret o is similar to the
case of an amended complaint the filing of which is not
a mat t e r of r ight , hence likew ise r e qu i r in g leave of
court therefor (see 2nd par., Sec. 3 of the Rule). However,
unlike the lat t er, the court may fix a different period
for answer ing the supple ment al complaint in lieu of the
r eg le me nt ar y 10-day per iod. The difference may be
ascribed to the fact t hat in an amended complaint , the
facts sought to be inco rpor at ed t her e in were alr eady

218
RUL E 11 WH E N T O FIL E S E C S . 8 -11
RESPON SI V E PLEADING S

known to but were merely omitted by the pleader and, in


all probability, were likewise known to the defending
party. The supplemental complaint, on the other hand,
seeks the introduction of facts or events which occurred
or supervened after the filing of the original complaint,
hence, for lack of knowledge thereof, the defending
party may need a longer period of time to ascertain and
respond to the allegations thereof.

Sec. 8. Existing counterclaim or cross-claim. — A


c o m p u l s o r y c o u n t e r c l a i m or a c ro ss - c la i m that a
d e f en d i n g party has at the time he files his an swe r
shall be con t ai n e d t h erei n . (8a, R6)

Sec. 9. Counterclaim or cross-claim arising after


answer. — A c o u n t e rc l a i m or a cross - clai m wh i c h
ei t h e r mat u re d or wa s acq u i re d by a party after
se rvi n g his p l ead i n g may, with the p e rm i s si o n of
the court, be p re se n t e d as a cou n t e rc l a i m or a cross-
claim by su p p le m en t a l p l ead i n g before j u d g m en t .
(9, R6)

Sec. 10. Omitted counterclaim or cross-claim.—


When a p lead e r fails to set up a cou n t e rc l ai m or a
c ro s s - c l a i m t h ro u g h o v e r s i g h t , i n a d v e rt e n c e , o r
excu sab l e n eglect, or whe n j u st i ce requ i res, he may,
by leave of court, set up the cou n t e rc l ai m or cross-
claim by a m e n d m e n t before ju d gmen t . (3a, R9)

Sec. 11. Extension of time to plead. — Up o n


motion and on suc h t erms as may be just, the court
may e xt en d the tim e to p lead p rovi d e d in t h es e
Rules.
The cou rt may also, upon like terms, allow an
an swer or oth er p lead i n g to be filed after the time
fixed by th es e Rules. (7)

219
RUL E 11 R E M E D I A L L AW COMPENDIU M SECS . 8-11

NOTES

1. Sec. 11 is co mme nt ed on in t he not es UNDE R


Sec. 2 of this Rule.
2. See the discussion in the notes under Secs. 6
and 7 of Rule 6 which point out t hat an aft er-acquired
co unt er cla im or cross-claim may be set up by filing a
supple ment al pleading, while an omitted count erclaim or
cr o ss- c la i m may be r aised in an a me nde d p lead in g
pur suant to and under the condit ions in Secs. 9 and 10 of t his
Rule.
It is also noted t herein t hat a count erclaim or cross-
claim need not be a ns w e r e d if i t is base d on or is
inseparable from the defenses raised by the opposing part y,
or merely allege the opposite of the facts in the complaint .
Also, where the count erclaim or cross-claim is only for
damages or att orney' s fees ar ising from the filing of the
complaint , it need not be answered. These doctrines also
apply to after-acquired or omitted counterclaims and cross-
claims subsequent ly allowed by the court to be filed in the
action.

220
RULE 12

BILL OF PARTICULARS

S e c t i o n 1. When applied for; purpose. — B efore


re s p o n d i n g to a p lead i n g, a party may move for a
more d efi n i t e s t a t e m e n t or for a bill of part i cu lars
of an y matt e r wh i c h i s not av e rred with su fficient
d e fi n i t e n e s s or p art i cu la ri t y to en ab le hi m properly
to p rep are his res p on s i v e p lead i n g. I f the p lead i n g
is a rep ly, the mot i o n mus t be filed wi th in ten (10)
days from se rvi ce thereof. Suc h moti on shall point
ou t the d e f e c t s c o m p l a i n e d of, the p a r a g r a p h s
wh e re i n the y are co n t ai n e d , and the d et ai ls d esi red,
(la)

NOTES

1. Under this revised Rule, the purpose of a bill of


part icular s is to enable the defending part y to properly
p r e p a r e his r e spo ns i v e p le a d ing . UN DE R the for mer
fo r mu la t io n , the ot he r pur po s e wa s suppo se d l y t o
enable him "to pr epar e for t rial," but that st at e me n t
has been eliminat ed for being inaccur at e. Besides, there
are other and more proper remedies or modes of discovery
whereby a part y may chart his course of action for the
prospect ive trial.
2. . Wha t may be co ns id er e d as a r at io na l e
for requir ing a bill of part icular s in proper cases is
t hat, while p lead ings should be liberally const rued
wit h a view to subst ant ial justice, courts should not be
left to conjecture in the det er minat io n of the issues
submitted by t he l it ig a nt s . Wher e the p lead ing is
vague and uncert ain, courts should not be led to the
commission of error or injust ice by exploring in the midst
of uncert aint y and d iv in ing t he int e nt io n of t he
par t ie s from the
221
RUL E 12 REMEDIA L LAW COMPENDIU M S E C S . 2- 4

ambiguit ies in the pleadings (Go Occo & Co. vs. De la


Costa, et al., 63 Phil. 445).
3. The grant ing of a motion for a bill of part icular s
lies w it hin the sound discret ion of t he court and its
ruling will not be reversed unless t here was palpable
abuse of discret ion or it was a clearly erroneous order.
Thus, the Supreme Court refused to dist urb the order of
the trial court dismissing the complaint where plaint iff
refused to submit a bill of part iculars despite the court's
order therefor, it appear ing t hat the allegat ions on the
cause of action were in the nat ur e of legal conclusions
which sho uld have been clar ified by u lt i m a t e fact s
(Santos vs. Liwag, L-24238, Nov. 28, 1980).

Sec. 2. Action by the court. — Upo n t he filing of


t he mo t io n , t he c ler k o f C o u r t mu s t immed iat el y
br i n g i t t o t he a t t e n t i o n o f t he C o u r t w h i c h ma y
e it he r den y o r g r a n t i t o u t r ig ht , o r allo w t he p a r t ie s
t he o p p o r t u n i t y t o b e he a r d , (n)

Sec . 3. Compliance with order. — If t he mo t io n is


g r a n t e d , e it h e r i n w ho l e o r i n p ar t , the c o m p l i a n c e
t h e r e w i t h mu s t b e effect ed w it h i n te n (10) day s fro m
no t ic e of t he o r d e r , u n le s s a d i f f e r e n t p e r io d i s fixed
b y t he c o u r t . The bill o f p a r t i c u l a r s o r a mo r e de f in it
e s t a t e m e n t o r d e r e d b y t he C o ur t ma y b e filed e i t h e r i n
a s e p a r a t e o r i n a n a m e n d e d p l e a d i n g , s e r v i n g a cop
y t he r e o f o n t he a d v e r s e p a r t y , (n)

Sec . 4. Effect of non-compliance. — If t he o r d e r is


no t o be ye d , o r i n cas e o f in s u f f i c i e n t c o m p l i a n c e
t h e r e w i t h , t he Co ur t ma y o r d e r t he s t r i k i n g ou t o f
t he p l e a d i n g o r t he p o r t i o n s t he r e o f t o w hic h t he o r d e
r wa s d ir e c t e d o r ma k e suc h o t he r o r d e r a s i t d e e m s
just . ( l[ c] a )

222
RULE 12 BILL OF PARTICULARS SECS. 5- 6

NOTES

1. These new or amended provisions spell out the


mechanics involved in the obtent ion of a bill of part iculars
and the sanct ions for non-compliance t herewit h. Judicia l
experience shows t hat resort to a motion for a bill of
part icular s is somet imes actually intended for delay or,
even if not so int ended, no net heless r esult s in delay
since t he r egle me nt ar y period for filing a responsive
plead ing is suspended and the subsequ ent exchanges
are likewise set back in the meant ime.

2. Sec. 3 is a new provision which is int ended to


clarify how a bill of par t icu lar s may be filed, t hat is,
t hrough eit her a separat e or an amended pleading. Thus,
the former provision in Sec. 1(b) of the old Rule t hat a
bill of par t ic u la r s "shall be gover ned by the rules of
pleading and the original shall be filed with the clerk of
court" has been eliminat ed in the reproduct ion of t hat
former provision as Sec. 6 of the present Rule.
Said Sec. 3 furt her makes it clear t hat the motion for
a bill of part iculars may be grant ed in whole or in part
as not all the allegat ions quest ioned by the movant are
necessarily so ambiguous as to require clarificat ion.

Sec. 5. Stay of period to file responsive pleading. —


After ser v ic e of t he bill of p a r t i c u l a r s or of a mo r e
de f i n it e p l e a d i n g , o r aft e r not ic e o f d e n ia l o f hi s
mo t io n , t he mo v i n g p a r t y ma y file hi s r e s p o n s i v e
p l e a d i n g w it h i n t he per io d t o whic h h e wa s e nt it le d
a t t he t im e o f filing hi s mo t io n , whic h shal l no t b e
less t ha n five (5) day s in an y e ve nt . ( l[b ]a)

Sec . 6. Bill a part of pleading. — A bil l of


p a r t i c u l a r s be co me s par t o f the p l e a d i n g for whic h
i t i s i nt e n d e d . (l [ a]a)

223
RUL E 12 R E M E D I A L LAW C O M P E N D I U M S E C S . 5-6

NOTES

1. As understood under Sec. 1 of this Rule, a motion


for a bill of p a r t i c u l a r s mus t be filed w it h i n t he
r e g l e m e nt a r y per iod for t he filing of a r e s po ns i v e
plead ing to the p leading sought to be clar ified. This
cont emplat es pleadings which are required by the Rules
to be answer e d UNDE R pain of pr o cedu r a l sa nct io ns ,
such as default or implied admissio n of t he facts not
responded to. A special provision regarding a vague reply
is included in Sec. 1, t hat is, t hat a motion for a bill of
part icular s directed to a reply must be filed wit hin 10
days, since a responsive pleading is not required for a
reply as, in fact, the filing of the reply itself is optional
or permissive (see Sec. 6, Rule 11 and notes t hereon).

2. This specificat ion of a reply took the place of the


former provision which merely provided for t hat 10-day
period if the pleading sought to be clar ified is one to
which "no r espo nsive plead ing is per m it t e d by t hese
rules." That is in itself correct but may be suscept ible of
m isu nder st and ing since t here are other pleadings evolved
and sanct io ned by pract ice as r espo ns ive ple ad ing s,
which are of Amer ican vintage but not expressly provided
for in our Rules.
Thus, after the reply, t here can be a rejoinder with
a sur-rejoinder and t hen a r ebut t er wit h a sur -r ebut t er.
If t hese subsequent pleadings are allowed by the court,
as responsive pleadings which are not required but at
least aut hor ized, t hen it would be logical for it to fix a
period for the filing of a motion for a bill of part icular s
whenever the same is necessary to make more definite
the allegat ions in said pleadings.

3. . Judicial exper ience, however, reveals t hat


resort to the filing of rejoinders and sur-r ejo inder s or
ot her subsequent pleadings were often resorted to for
dilatory purposes, with the part ies intentionally leaving
incomplete
224
RUL E 12 BIL L O F P AR T I C U L A R S S E C S . 5-6

their ant ecedent pleadings in order to justify the grant of


leave to file said subsequent pleadings.
Consequent ly, the Supreme Court resolved in A. M.
No. 99-2-04-SC to d isp e ns e wit h r e jo i nde r s and to
subst it ut e a different procedure to subserve the purpose
of affected part ies on a more meaningful and product ive
process designed to enhance and expedite judicial act ion
on the case (see Appendix R).
4. The filing of a motion for a bill of par t icu lar s
int errupt s the time to plead, but only if it is sufficient in
form and su bst a nce . F u r t he r mo r e , the mot ion mus t
comply with Secs. 4 and 5, Rule 15 on the service and
cont ent s of the notice of mot ions (Filipinos Fabricators &
Sales, Inc. vs. Magsino, et al., L-47574, Jan. 29, 1988),
which provisions have been subst ant ially reproduced in
the present revised Rule 15.
5. If the mot ion is gr ant ed, the mo vant can wait
until the bill of part icular s is served on him by the opposing
par t y an d t he n h e will hav e the ba la nc e o f the
r egleme nt ar y period wit hin which to file his responsive
pleading. If his motion is denied, he will still have such
balance of the r egle ment ar y period to do so, counted from
service of the order denying his motion. In eit her case, he
will have at least 5 days to file his responsive pleading.

6. Regarding the availabilit y and the role of a bill


of part icular s in criminal cases, see Sec. 9, Rule 116 and
the notes t hereo n.

225
RULE 13

FILING AND SERVICE OF PLEADI NG S ,


JUDG M ENT S AND OTHER PAPERS

S ect i o n 1. Coverage. — This Rule shall gove r n


the fi ling of all p l ea d i n g s and ot h er p ap ers, as well
as the se rv i c e t h ereof, exce p t t h os e for wh i c h a
d i fferent mod e of servi ce i s p rescri b ed, (n)

Sec. 2. Filing and service, defined. — Fi li ng is the


act of p re s e n t i n g the p lead i n g or ot her p ap er to the
clerk of court.
S ervi c e is the act of p rovi d i n g a party wit h a
cop y of the p l e a d i n g or p ap e r c o n c e rn e d . I f an y
party ha s app eare d by coun sel , servi ce upo n hi m
sh al l b e mad e u p o n hi s c o u n s e l o r on e o f t h em ,
u n les s se rvi c e upo n the party h i m se l f i s ord e re d by
the court. Where on e cou n se l ap p ear s for seve ra l
p art i es, he shall on ly be en t it led to on e cop y of any
p ap er served upo n hi m by the op p osit e side. (2a)

NOTES

1. It is the dut y of counsel to adopt and st r ict ly


maint ain a syst em t hat efficiently t akes into account all
court not ices sent to him. His failure to do so cannot
excuse him from the consequences of his non-receipt of
court notices (Babala vs. CA, et al., L-23065, Feb. 16,
1970; Republic vs. Arro, et al., L-48241, June 11, 1987;
Antonio, et al. vs. CA, et al., G.R. No. 77656, Aug. 31,
1987). An at torney of record must notify the court of his
change of address. The fact t hat counsel used a different
address in later pleadings does not const it ute the notice
r equ ir e d for ind icat ing his change of addr e s s (Phil.
Suburban Dev. Corp. vs. CA, et al., L-33448, Sept. 17,
1980). See also Sec. 3, Rule 7 and the notes t her eunder.

226
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 1-2
JUDGMENTS AND OTHER PAPERS

2. Notice given to a part y who is duly repr esent ed


by counsel is a nullit y (Inocando vs. Inocando, 110 Phil.
266; Elli vs. Ditan, L-17444, June 30, 1962; Republic vs.
Arro, et al., supra; Antonio, et al. vs. CA, et al., supra),
unless service thereof on the part y himself was ordered
by the court or the technical defect was waived (National
Lumber & Hardware Co. vs. Manaois, 106 Phil. 1098;
Jalover vs. Ytoriaga, L-35989, Oct. 29, 1977; De Leon vs.
CA, et al, G.R. No. 138884, June 6, 2002).

3. Where notice of the decision was served on the


receiving st at ion at the ground floor of the defendant ' s
company building, and received much later at the office
of its legal counsel on the nint h floor of said building,
which was his address of record, service of said decision
takes effect from said later receipt at the aforesaid office
of it s legal co u nse l (PLDT vs. NLRC, et al, G.R.
No. 60050, Mar. 26, 1984). However, where counsel who
had t heir office on the t hird floor of the building had
vir t ually acquiesced to service of p le a d ings on t he m
t hrough a corporat ion on the ground floor of the building
by not objecting to previous service t hrough the latter,
subsequent service in such manner is valid (PCIB vs.
Ortiz, et al., L-49223, May 29, 1987).
4. Where a part y is represent ed by more than one
counsel of record, service of notice on any of the lat t er is
sufficient (Damasco vs. Arrieta, L-18879, Jan. 31, 1963).
Service on counsel of record is notice to the party unless
the irresponsibilit y of such counsel denies the part y of
his day in court (PHHC vs. Tiongco, et al, L-18891,
Nov. 28, 1964).
5. In cr iminal cases, notice to the prosecut io n is
made on the fiscal and the privat e prosecutor is deemed
construct ively notified thereof (Buro vs. Montesa, et al,
87 Phil 245). The court, of course, could also cause a
copy thereof to be served on said private prosecutor.
RUL E 13 R E M E D I A L L AW COMPENDIU M SE C . 3

Sec. 3. Manner of filing. — The filing of p lead •


ings , a p p e a ra n c e s , moti on s , not ic e s , orde rs ,
j u d g m e n t s and all oth er papers shall be mad e by
p r e s e n t i n g the o r i g i n a l c o p i e s t h ereo f , p l a i n l y
i n d i cat ed as su ch, p erson al ly to the clerk of court
or by s en d i n g t h e m by regi st e red mail. In the first
case, the clerk of cou rt shall en d o rs e on the p lead i n g
the date and hou r of filing. In the secon d case, the
date of the mai li n g of mot i on s , p lea d i n g s , or any
oth er papers or p aym en t s or d ep o si t s , as sh ow n by
the post office st am p on the en velop e or the regi st ry
re cei p t , shal l b e c o n s i d e r e d a s the dat e o f t h ei r
filing, p aymen t , or d ep osi t in court. The en ve l op e
shall be at t ach e d to the record of the case, (la )

NOTES

1. The clerk shall keep a general docket, each page


of which shall be numbered and prepared for receiving
all the ent r ies in a single case and shall ent er t herein all
cases, number ed consecut ively in the order in which they
were received and, under the heading of each case and
a complete tit le thereof, the date of each paper filed or
issued, of each order or judgme nt ent ered, and of each
ot her step t aken in the case, so t hat by reference to a
single page the history of the case may be seen (Sec. 8,
Rule 136).

2. . UNDE R t hi s sect io n, filing by mail


sho uld be t hrough the regist ry service which is made by
deposit of the plead ing in t he post office, and not
t hrough ot her means of t ransmiss io n. Thus, the date of
delivery of the p le a d i ng s to a pr i v a t e let t er -
fo r w a r d i n g agenc y or pr ivat e car r ier , even i f licensed
to act as such wit h r espect to ot her articles, is not a
recognized mode of filing ple ad ings which can only
be done t hr o ug h the Philippine Gover nment Post Office
or its postal agencies. If a pr ivat e carrier is availed of by
the part y, the dat e of

228
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 4-5 6
JUDGMENTS AND OTHER PAPERS

actual receipt by the court of such pleading, and not the


date of delivery to the carrier, is deemed to be the date of
the filing of that pleading (Benguet Electric Cooperative,
Inc. vs. NLRC, et al., G.R. No. 89070, May 18, 1992;
Industrial Timber Corp. vs. NLRC, et al., G.R. No. 111985
June 30, 1994).

Sec. 4. Papers required to be filed and served. —


E v e r y j u d g m e n t , r e s o l u t i o n , o rd e r , p l e a d i n g
su b s eq u en t to the comp lai nt, wri tt en mot ion, notice,
ap p e a ran ce , d eman d , offer of j u d g m en t or si mi lar
p ap er s shal l be filed wit h the cou rt s and serve d
upon the p art i es affected. (2a)

Sec. 5. Modes of service. — S ervi ce of p lead i n gs,


m o t i o n s , n o t i c e s , o rd e r s , j u d g m e n t s an d ot h e r
p ap ers shall be mad e ei t h e r p erson a l ly or by mail.
(3a)

NOTE

1. Aside from personal service or by mail, service of


pleadings may also be effected by substituted service
(Sec. 8) and judgments, final orders or resolutions may
be served by publication (Sec. 9), but the last mode is
proper only where the summons on the defendant had
also been served by publication.

Sec. 6. Personal service. — S ervi ce of the p ap ers


may be made by d e li ve ri n g p erson a l l y a copy to the
party or his cou n se l , or by leavi n g i t in his office
wit h hi s cl e r k o r wi t h a p e rs o n h a v i n g c h a rg e
thereof. If no p erson is found in his office, or his
office i s not kn own , or he has no office, the n by
l ea vi n g the cop y, b e t w e e n the h ou r s o f ei gh t i n
the m o rn i n g and six in the even i n g, at the party' s
or cou n se l' s re si d en ce , if kn own , with a person of

229
RUL E 13 REMEDIA L LAW COMPENDIU M SE C 7

su ffi cient age and d i sc ret i on the n resi d i n g t h erei n .


(4a)

NOTE

1. This sect ion has been a mended to include the


sit uat ion where counsel has no office, and not only where
his office is unkno wn or t here is no person in charge
thereof. Under such circumst ances, service may be made
not only at the residence of the part y he represent s but,
now, also at counsel's residence, it being assumed t hat
his residence is also used by him as his office. In any of
said cases, this section now requires t hat if not served
o n e it he r the par t y o r co unse l p e r so na l l y t he r e i n ,
service should be made not only on a person of sufficient
discret ion but likewise of sufficient age and who must
furt her be actually residing t herein. The addit ional age
r equir eme nt is int ended to make it easier to ascert ain
whet her the person to whom the pleading was ent rust ed
is one with sufficient discret ion. Also, the r equir eme nt
t hat he should be a resident t her ein is to obviat e the
possibilit y or the pret ext t hat service was made only on a
visitor or any person who happened to be in the residence
for a t ransient or t emporar y purpose.

Sec . 7. Service by mail. — S ervi c e by re gi st e re d


mail shall be mad e by d ep o s i t i n g the cop y in the
post office, in a sealed e n v e l o p e , p lain ly ad d re s s e d
to the party or his coun se l at his office, i f kn own ,
o t h e rw i s e at his re si d en c e , i f kn own , wit h p ost ag e
fu l l y p r e - p a i d , an d w i t h i n s t r u c t i o n s t o the
p o s t m a s t e r to ret u rn the mail to the sen d e r after
ten (10) day s i f u n d e li ve re d . If no regi st ry se rvi ce is
avai lab le in the locali ty of ei t h e r the sen d e r or the
a d d re s s e e , se rvi ce may be don e by ord i n a ry mail.
(5a) (As amended by Resolution of the Supreme Court,
dated Feb. 17, 1998)

230
RUL E 1 3 F I L I N G AN D S E R VI C E O F P L E A D I N G S , S E C S 8- 9
J U D G M E N T S AN D O T H E R P AP E R S

NOTE

1. See Note 2 under Sec. 6, Rule 11.

Sec. 8. Substituted service. — If s e r v i c e of


p le ad i n g s , mot i on s , n ot i ces, re so l u t i o n s , ord ers and
o t h e r p a p e r s c a n n o t b e m a d e U N D E R the t w o
p re c e d i n g sect i o n s , the office and p lace of re si d en c e
of the party or hi s cou n se l b ei n g u n k n own , se rvi ce
may be mad e by d el i v e ri n g the copy to the clerk of
cou rt, wit h p roof of fai lu re of both p erson a l se rvi ce
and se rvi c e by mail. The servi ce i s comp l et e at the
time of suc h d eli ve ry. (6a)

NOTES

1. Where the counsel of record has not withdrawn


as such, service of the judgment on his wife at their
residence is valid personal service (Cubar vs. Mendoza,
G.R. No. 55035, Feb. 23, 1983).

2. "Substituted service" as applied to pleadings in


the above section has a different meaning from "substi•
tuted service" as applied to summons, Rule 14 providing
as follows:
"Sec. 7. Substituted service. — If, for justifiable
cau ses , the d ef en d an t cannot be served wi t h i n a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's dwelling house or residence
with some person of suitable age and discretion then
re si d i n g t h erei n , or (b) by l eavi n g the copi es at
defendant's office or regular place of business with some
competent person in charge thereof. (8a)"

Sec. 9. Service of judgments, final orders or resolu•


tions. — Ju d g m e n t s , final o rd ers or re s o lu t i on s shall

231
RUL E 13 R E M E D I A L LA W C O M P E N D I U M SE C . 9

be served ei t h e r p erson al ly or by re gi st e re d mail.


When a party su m m on e d by pu b li cat i on ha s failed
to ap p ea r in the act i on, j u d gme n t s , final ord ers or
re s o lu t i on s agai n s t hi m shall b e served upo n hi m
also by p u b li cat i on at the exp en s e of the p re vai l i n g
party. (7a)

NOTES

1. A judgment or final order served by ordinary mail


does not become executory since the service is fatally
defective (Vda. de Espiritu vs. CFI of Cavite, et al., L-
30486, Oct. 31, 1972). Person al servi ce of such judgment
upon the party, instead of his counsel of record, is not
permitted. Also, where a copy of the decision is served on a
person who was neither a clerk nor one in charge of the
attorney's office, such service is invalid and the decision
did not thereafter become executory (Tuazon, et al. vs.
Molina, et al., G.R. No. 55697, Feb. 26, 1981).

2. The mere notation in the rollo that a copy of the


resolution was sent to counsel, absent a showing of his
receipt thereof, does not constitute proof of service (Soria
vs. CA, L-36378, April 7, 1976).
3. For constructive service by registered mail, there
must be conclusive proof that a first notice by the post•
master to the addressee was received. The presumption
that official duty has been performed does not apply
(ITT Philippines, Inc. vs. CA, et al., L-30810, Oct. 29,
1975; Barrameda vs. Castillo, L-27211, July 6, 1977;
Elane vs. CA, et al., G.R. No. 80638, April 26, 1989). If,
however, the postmaster certifies that such notice was
sent, the presumption arises and overrides the contrary
claim of the addressee (Ferraren vs. Santos, L-41323,
April 27, 1980). Where the delivery of the first notice
was not made because the "addressee was unlocated,"
there is no substituted service (Arines vs. Cuachin, L-
30014, July 31, 1978). But where a copy of the

232
RUL E I S F I L I N G AN D S E R V I C E O F P L E A D I N G S
J U D G M E N T S AN D O T H E R P A P E R S

decision was sent to counsel at his address of record


but the same was not received because he moved to
another address without informing the court thereof,
such omission or neglect will not stay the finality of the
decision (Magno, et al. vs. CA, et al., G.R. No. 58781
July 31, 1987).

4. Judgments, final orders or final resolutions can


be served only under the three modes authorized in this
section, that is, personally, by registered mail or by
p ub li cati on. They cannot be served by su b st i t ut ed
service. With respect to service by publication, the rule
is that resort thereto is proper only where summons was
likewise served by publication, and this can result in
practical problems especially in the appellate courts. If,
for i n st an ce, it has been ascertained that a party's
counsel is dead or has permanently left the country and
withdrawn from the case without a substitute counsel
having entered his appearance, and the whereabouts of
the party represented by him can neither be ascertained
nor the fact thereof obtained from the opposing party,
and su mmon s in that case had not been served by
publication, then service of the judgment by publication
is not authorized and would not be valid. As just stated,
substituted service can not be availed of. The logical
solution would be to authorize the trial court to effect
service of the judgment by publication, otherwise entry
and execution of that judgment would be void.

5. What is authorized or required to be served by


publication under the third mode in this section is the
judgment, final order or resolution. To avoid absurd or
impractical results, only the dispositive portion or the
fallo should be required to be published, and not the
entire text of the decision or resolution which may be
volu min ou s and will entail su b stantial publication
expenses. In other words, the term "judgment" must be
that contemplated in Rule 36. The prevailing party

233
RUL E 13 R E M E D I A L LA W C O M P E N D I U M SE C . 10

may, for reasons of his own, cause the publication of


the whole decision since after all the same shall be at
his expense.

Sec. 10. Completeness of service. — P e r s o n a l


se rvi ce i s comp let e upo n actu al d eli very. S ervi ce
by ord i n ary mail i s comp let e upo n the e xp i rat i o n
o f te n (10 ) d ay s aft er m a i l i n g , u n l e s s the Cou rt
o t h e rw i s e p rovi d es. S ervi c e by re gi s t e re d mai l i s
comp let e upo n act u a l recei p t by the ad d re s s e e , or
after five (5) day s from the dat e he re c e i v e d the first
n ot i c e o f the p o s t m a s t e r , w h i c h e v e r dat e i s earli er.
(8a)

NO TES

1. This section, as amended, now provides for 10


days, instead of the former 5 days, for completeness of
service by ordinary mail. For service by registered mail,
the completeness thereof is now reckoned from the date
of actual receipt of the first notice of the postmaster,
unless the registered mail was received prior thereto.

2. The rule on completeness of service by registered


mail only provides for a disputable presu mption and
may, therefore, be rebutted (Cabuang vs. Bello, 105 Phil.
1135). For the rule to apply, service must have been
made on the counsel de parte (Fojas vs. Navarro, L-26365,
April 30, 1970) and if it was sent to his address of record
and he fails to receive it for causes imputable to him,
the service becomes final and it is not necessary to effect
further service upon the party he represents (Magno,
et al. vs. CA, et al., supra).

3. Service of notice by registered mail cannot be


avoided by counsel's refusal to accept delivery after
notification thereof, and notice is deemed complete
regardless of such refusal to accept (Isaac vs. Mendoza,

234
RUL E 13 F I L I N G AN D S E R VI C E O F P L E A D I N G S SE C S 1 1 -1 2
J U D G M E N T S AN D O T H E R P A P E R S

89 Phil. 279).

4. When the post office certifies to the delivery of


registered mail, such certification should include data as
to wh en , how and to whom d eli very wa s made
(Hernandez, et al. vs. Navarro, et al, L-28296, Nov 24
1972).

5. For failure of petitioners to claim a copy of the


resolution denying due course to their petition within
5 days from notice, service became effective after the five-
day period and the finality of said resolution is reckoned
therefrom, pursuant to Sec. 8 (now, Sec. 10), Rule 18
which is applicable to said resolution of the appellate
court (Aportadera, et al. vs. CA, et al, L-41358, Mar. 16,
1988).

Sec. 11. Priorities in modes of service and filing.—


W h e n e v e r p r a c t i c a b l e , the s e rv i c e an d fi li n g o f
p lead i n gs and ot h er pap ers shall be done personally.
Excep t wit h re sp ec t t o p ap er s e m a n a t i n g from the
cou rt, a resort to ot he r mod e s mus t be ac co mp an i e d
by a wri t t e n e xp l a n a t i o n wh y the serv i ce or filing wa
s not don e p erson a l ly. A vi olat i on of thi s rule may be
cau s e to con si d e r the p ap er as not filed, (n)

Sec . 12. Proof of filing. — The filing of a p lead i n g


or p ap e r sh al l be p ro ve d by its e xi s t e n c e in the
record of the case . If i t i s not in the record, but i s
c la i me d t o h av e b ee n filed p erson a l l y , the fi li n g
s h a l l b e p r o v e d b y the w r i t t e n o r s t a m p e d
a c k n o w l e d g m e n t of its fi ling by the clerk of court
on a cop y of the same; i f filed by regi st e red mail, by
the re g i s t r y re c e i p t an d b y the affi d avi t o f the
p e r s o n wh o di d the m a i l i n g , c o n t a i n i n g a full
st at e m en t of the date and place of d ep o si t i n g the
mail in the post office in a sealed en ve l op e ad d ressed
to the court, wit h p ost age fully p re-p aid, and wit h

236
RUL E 13 R E M E D I A L LAW COMPENDIU M S E C S . 1 1 -1 2

i n st ru ct i on s to the p ost ma st e r to ret u r n the mail


to the sen d e r after ten (10) day s i f not d eli ve red , (n)

NOTES

1. Sec. 11, which is a new provision, fills a long


st anding need to curb the practice of delaying the receipt
of a pleading by a part y t hrough the simple expedient
of ser ving t he same by mail. A simple and common
exa mp l e would be in t he ma t t e r of mot io n s wit h a
request ed date of hear ing, and a copy whereof is mailed
wit h t he int ent to have t he same received by t he adverse
part y after the hear ing thereof. Ext reme sit uat io ns even
obtain in Metro Manila wherein the copy of the motion is
mailed in a post office in some other component city or
municipalit y of the met ropo lit an area, alt hough the law
firms r epr esent ing the part ies are just across the st reet
from each ot her in the same city or, worse, are in the same
building. This sect ion may be consider ed, not only as
providing a procedural sanct ion for such duplicit y, but as
also laying a basis for administ r at ive disciplinar y action
for professional ma lpract ice. See also relat ed provisions,
geared t oward the same objective, in Sec. 3, Rule 7 and
Sec. 4, Rule 15.

2. When t he service is not made personally, t here


mus t be a wr it t e n exp la nat io n t her efor, even if suc h
exp la nat io n is by its nat ur e accept able and manifest .
This r equir eme nt is int ended to emphasize t hat persona l
service is the rule, while the ot her modes of service are
the except io ns (Zulueta vs. Asia Brewery, Inc., G.R.
No. 138137, Mar. 8, 2001). Where no exp la nat io n is
offered to justify the service of pleadings by ot her modes,
the discr et io nar y po wer of t he court to expung e t he
pleading becomes mandat ory (United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R. No.
141117, Mar. 25, 2004).

236
RUL E 1 3 F I L I N G AN D S E R VI C E O F P L E A D I N G S , SE C . 1 3
J U D G M E N T S AN D O T H E R P A P E R S

3. The fact t hat an affidavit of service accompanied


t he pet it io n i s not s u bs t a nt i a l co mplia nce wit h the
requir ement in Sec. 11. An affidavit of service is required
merely as proof t hat service has been made to the other
part ies in the case. It does not, however, explain why
alt er nat ive modes of service other t han personal service
were resort ed to (MC Engineering, Inc. vs. NLRC, et al.,
G.R. No. 142314, June 28, 2001).

4. . Thi s Rule, an d its pr ed e ce s so r , had


a lwa y s provided for proof of service of pleadings, but
had not made an equ iva le n t pro vis io n for proof of
the filing thereof. Yet, similar controversies also arise
regarding t he validit y, t imeliness and sufficiency of the
filing of the pleading just like the mat t er of the service
thereof, hence t hese co mplement ar y provisions of Sec. 12.

Sec. 13. Proof of service. — P roo f of p e r s o n a l


se rvi ce shall con si s t of a wri t t e n admi s si o n of the
party served , or the official retu rn of the server, or
the affidavit of the party servin g, c on t a i n i n g a full
s t a t e m e n t of the date, place and man n er of servi ce. If
the se rvi ce i s by ord i n ary mail, proof t h ereof shall
con si s t of an affidavit of the p erso n mai li n g of facts
s h o w i n g c o m p l i a n c e wit h sect i o n 7 of thi s Rule. If
servi ce i s mad e by regi st e red mail, proof sh all be
mad e b y suc h affi d avi t an d the re g i st r y re ce i p t
i ssu e d by the mai li n g office. The regi st ry retu rn
card sh all be filed i m me d i a t e l y upo n its recei p t by
the sen d e r , or in lieu t h ereo f the u nc la i me d lette r
t og et h e r wi t h the cert i fi ed o r swo r n cop y o f the
n ot ice gi ve n by the p o st m a s t e r to the ad d re s s ee .
(10a)

NOTE

1. The provision of t his section on proof of service


of pleadings by regist ered mail is also applicable to the

237
RUL E 13 R E M E D I A L LA W C O M P E N D I U M SE C . 14

mat t er of proving t hat a copy of the summo ns was sent


by r egist er ed mail to a defendant wher e t he same is
required as an int egral complement in t he service of such
summo ns by publicat ion. See Secs. 7 and 15, Rule 14,
and the comment s t her eunder.

Sec. 14. Notice of lis pendens. — In an a ct i o n


aff ect i n g the title or the right of p o s s e s s i o n of real
p ro p e rt y , the p l ai n t i f f an d the d e f e n d a n t , wh e n
af f i rm at i v e re li e f i s c l a i m e d i n hi s a n s w e r , ma y
record in the office of the regi st ry of d eed s of the
p rovi n c e in wh i c h the p rop ert y i s si t u at e d a n ot i ce
o f the p e n d e n c y o f the act i on . Said n ot i c e shal l
con t ai n the n ame s o f the p art i e s and the object o f
the a c t i o n o r d e f e n s e , an d a d e s c r i p t i o n o f the
p rop e rt y in that p rovi n c e affect ed th ereb y . Only
from the tim e of filing su c h n ot i c e for record shall
a p u r c h a s e r , o r e n c u m b r a n c e r o f the p r o p e r t y
affect ed t h ereb y , b e d ee m e d t o hav e c o n s t ru c t i v e
n ot ice of the p e n d e n c y of the act i on, and only of it s
p e n d e n c y agai n s t the p art i e s d e s i g n a t e d b y th ei r
real n ames .
The n o t i c e of lis pendens hereinabov e
m e n t i o n e d ma y b e can c e l l e d on ly upo n order o f the
cou rt, after p rope r s h o w i n g that the n ot ice i s for
the p u rp o s e o f m o l e s t i n g the a d v e r s e p a rt y , o r
t hat i t i s no t n e c e s s a r y t o p ro t e c t the ri g h t s o f
the part y wh o cau se d i t to be rec o rd e d . (24a, R14)

NOTES

1. A notice of lis pendens, under the circu mst ances


and the condit ions provided in this section, may be recorded
at the inst ance of the int erest ed part y at any t ime dur ing
the pendenc y of t he act ion and not necessar ily at the
time of the filing of the complaint or the answer of the
part y concerned.

238
RUL E 1 3 FI LIN G AN D S E R VI C E O F P L E A D I N G S , SE C . 1 4
J U D G M E N T S AN D O T H E R P A P E R S

2. A notice of lis pendens is int ended to protect the


real right s of the part y who caused the regist rat ion thereof
(Natano vs. Esteban, L-22034, Oct. 28, 1966). It
ser ves as a war nin g to prospect ive e ncu mbr a ncer s or
pur cha ser s t hat t hey should keep t heir hands off t he
propert y unless t hey wish to gamble on the result of the
lit igat ion invo lving the same (Bisaya Land Trans. Co.,
Inc. vs. Cuenco, L-18173, April 22, 1968; Laroza, et al.
vs. Guia, L-45252, Jan. 31, 1985; cf. Tanchoco, et al. vs.
Aquino, et al., L-30670, Sept. 15, 1987). The part y who
had the not ice a nno t at e d and who won the lit igat ion
over the pr opert y has the bet t er right as against one
who bo ught it wit h such a nno t at io n (Heirs of Maria
Marasigan vs. IAC, et al., G.R. No. 69303, July 23, 1987).

3. Where t he notice of lis pendens is limit ed to a one-


half undivided int erest in the propert y in lit igat ion, t he
owner of the ot he r half ha s t he r ight to sell his u nd i v id e
d pro indiviso shar e (Mercado vs. Viardo, L-14127, Aug.
21, 1962).

4. A notice of lis pendens cannot be ordered to be


cancelled on an ex parte motion. There should be notice
to the part y who caused such notice to be recorded so
t hat he may be hear d to show to the court t hat t he notice
of lis pendens is necessar y to prot ect his right s and is
not for the pur po se of mo lest ing t he adver se part y
(Punongbayan vs. Pineda, et al., G.R. No. 58193, Aug. 30,
1984). A not ice of lis pendens canno t be ordered to be
cancelled upon the mere filing of a bond by the part y on
whose tit le the notice is annot at ed, as this sect io n pro vide
s for only two i ns t a nc e s whe n such cancellat ion may be
aut horized (Tan, et al. vs. Lantin, et al., L-28526, July
7, 1986).
5. However, under except ional circumst ances, the
court can o rder the cancellat io n of t he not ice of lis
pendens e s p e c ia l l y w her e suc h c i r c u m s t a n c e s ar e
imputable to the party who caused the annot at ion of said

239
RUL E 13 R E M E D I A L LA W C O M P E N D I U M SE C . 14

notice, as where the lit igat ion was unduly prolonged to


the p r e ju d ic e of the d e fe nd a n t be c a u s e of s e ve r a l
cont inuances procured by the plaintiff (Mun. ofParahaque
vs. Rovira, 55 Phil. 1000). Also, where the case which is
the basis for the lis pendens notat ion was dismissed for non-
prosequitur on the part of the plaint iff (Lazaro vs. Mariana,
59 Phil. 627), or judgment was rendered against the p ar t y
who cause d the r e c o r d i n g o f sai d not ice (Capitol
Subdivision, Inc., et al. vs. Montelibano et al., 109 Phil.
546), said notice is deemed ipso facto cancelled.

6. Lis pendens is a Lat in t erm which lit erally means


a pending suit or lit igat ion, while a notice of lis pendens
is an anno uncement to the whole world t hat a part icular
real propert y is in lit igat ion, serving as a war ning t hat
one who acqu ir es an int er es t over the said pro pert y
does so at his own risk. It is a rule founded upon reasons
of public policy and necessit y.
As such, a notice of lis pendens cannot conceivably
be the lien or encumbrance co nt emplat ed by law. A lien
is an exist ing bur den or charge on the propert y, while
a notice of lis pendens is only a war ning t hat a claim or
possible charge on the propert y is pending det er minat io n
by the court. Not all claims against a propert y can be
co ns ider ed as liens w it hin the co nt e m p lat io n of law
(People vs. RTC of Manila, etc., et al., G.R. No. 81541,
Oct. 4, 1989).

7. A notice of lis pendens is proper only where t here


is an action or proceeding in court which affects the tit le
to or possessio n of real pro pe rt y (Dino vs. CA, et al.,
G.R. No. 95921, Sept. 2, 1992). It is essent ial t hat the
propert y be direct ly affected, as where the relief sought in
t he act ion includes the recovery of possessio n, or the
enforcement of a hen, or an adjudication between conflicting
claims of tit le, possession, or right of possession of specific
real propert y, or requiring its transfer or sale (Register
of Deeds vs. Mercado, 72 Phil. 353).

240
RUL E 13 F I L I N G AN D S E R V I C E O F P L E A D I N G S , SE C 14
J U D G M E N T S AN D O T H E R P A P E R S

8. In Alberto vs. CA, et al. (G.R. No. 119088 ,


June 30, 2000), it was furt her clarified that the rule of
lis pendens likewise applies to all suit s or actions which
directly affect not only t he t it le to real propert y, but also
those which are brought to est ablish an equitable est at e,
int erest or right in specific real propert y or to enforce
any lien, char g e or e nc u m br a nc e aga i ns t i t ar is in g
dur ing the pro gr ess of the suit . I t is also proper in
proceedings to declare an absolute deed of mortgage, or
to redeem from a foreclosure sale, or to establish a t rust ,
or t o s u it s for t he s e t t l e m e n t an d a d j u s t m e n t of
part ner ship int erest s in real propert y.

9. However, where the complaint merely asks for


the payment of construct ion services and mat erials, with
damages, but does not assert any encumbrance over the
propert y on which t he unpaid construct ions were made,
the annot at ion of a lis pendens on the land is not proper.
It is only a personal act ion for collection, wit hout any
aver ment of any enforceable right, int er est or lien upon
the subject propert y.
Even if the cont ractor' s lien under Art. 2242 of the
Civil Code had been alleged in favor of plaintiff, still the
desired annot at ion would be unjustified as a collection case
is not the proper mode for the enforcement of a contractor's
lien. Furt her mor e, said Art. 2242 finds applicat ion only
where t her e is a concurrence of credit s and a showing
t hat defendant ' s pro pert y was insufficient to pay the
concurring debt s, or t hat the claim was in connect ion
with insolvency or other act ions where claims of preferred
cr edit or s have to be ascer t ained (Atlantic Erectors,
Inc. vs. Herbal Cove Realty Corp., G.R. No. 148568,
Mar. 20, 2003).
10. For a furt her discussion of the other legal aspects
and effects of a notice of lis pendens, see Romero vs. CA,
et al. (G.R. No. 142406, May 16, 2005).

241
RULE 14

S UM M O N S

S ect i o n 1. Clerk to issue summons. — Up o n the


fi li n g o f the c o m p l a i n t an d the p a y m e n t o f the
r e q u i s i t e l e g a l f e e s , the c l e r k o f C o u rt s h a l l
fo rt h wi t h i ssu e the c o rre s p o n d i n g s u m m o n s t o the
d e f en d a n t s , (la )

Sec. 2 . Contents. — The s u m m o n s s h a l l be


d i rect e d t o the d ef en d an t , si gn e d b y the clerk o f
Cou rt UNDER seal, an d con t ai n: (a) the nam e of the
Cou rt an d the n ame s of the p art i es to the act i on; (b) a
d i rect i o n that the d ef en d an t an sw e r wi t h i n the time
fixed by t h es e Rules; and (c) a not i ce that u n les s the
d e f e n d a n t s o a n s w e r s , p l a i n t i f f wi l l t a k e
j u d g m e n t by d efau lt an d ma y be gra n t e d the relief
ap p li e d for.
A c o p y o f the c o m p l a i n t an d o r d e r for
a p p o i n t m e n t of gu a rd i a n ad litem, if any, shall be
a t t a c h e d t o the o r i g i n a l an d eac h cop y o f the
s u m m o n s . (3a)

NO TES

1. Jur isdict io n cannot be acquired over the defen•


dant wit hout service of summo ns, even if he knows of
the case against him, unless he vo lunt ar ily submit s to the
jur isdict io n of the court by appear ing t her ein as t hrough
his counsel filing the corresponding pleading in the case
(Habana vs. Vamenta, et al., L-27091, June 30, 1970).
Even if jur isdict ion over him was not originally acquired
due to defect ive service of summo ns, t he court acquires
jur isd ict io n over his person by his act of subsequent ly
filing a motion for reconsiderat io n (Soriano vs. Palacio, L-
17469, Nov. 28, 1964), or by jo int ly s u b m i t t i n g a

242
RUL E 14 SUMMON S S E C S . 1-2

compromise agr ee me nt for approval of the t rial court


(Algrabe vs. CA, et al., L-24458-64, July 31, 1969), or
where he signed the compromise agreement to guarant ee
the payment of the obligat ion of the impleaded defendant s
and said agreement was approved and was made the basis
of t he jud g me n t on compro mise (Rodriguez, et al. vs.
Alikpala, et al, L-38314, June 25, 1974). But where the
d e fe nd a n t died befor e the filing of the act io n an d
su m mo n s wa s ser ved on his co -defendant , the court
never acquired jur isdict ion over the former and judg ment
as to him is a nullit y. The deceased has no more civil
p e r s o na l i t y an d eve n t he vo lu nt a r y a p p e a r a n c e o f
counsel for him will be ineffective (Dumlao vs. Quality
Plastic Products, Inc., L-27956, April 30, 1976).

2. The failure to att ach a copy of the complaint to


the su mmo ns (Pagalaran vs. Ball at an, et al., 13 Phil.
135) or a copy of the order appoint ing a guardian ad litem
(Castaho vs. Castano, 96 Phil. 533) are mere technical
defects and the service of summo ns vests jur isdict ion in
the Co urt over the d e fe nd a n t who may t he r e b y b e
declared in default for failure to file an answer.

3. . Where t he defendant has already been


served wit h su m mo n s on the or ig ina l co mplaint , no
fur t her summo n s is r equir ed on t he ame nded
co mplaint if i t does not introduce new causes of
action (Ong Peng vs. Custodio, L-14911, Mar. 25,
1961); bu t wher e the d e fe nd a n t wa s dec lar e d i n
de fau lt on the or ig ina l complaint and the plaint iff
subsequent ly filed an amended complaint, new summons
must be served on the defendant on the amended
complaint as the original complaint was deemed
wit hdr awn upon such amend ment (Atkins, Kroll & Co.
vs. Domingo, 44 Phil. 680).
4. . F u r t h e r m o r e , i f the d e fe nd a n t ha d not
yet appeared by filing adversar y pleadings and an
amended complaint int roducing new causes of act ion
is filed, a
243
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 3- 5

new summo ns must be served upon him as regards the


amended complaint ; ot herwise, the court has no power
to try the new causes of action. Simply sending a copy
of the a mended complaint to him, under such circum•
st ances, is not equivalent to service of summo ns t her eon.
Ho wever, i f the de fe nd a n t had a lr ead y ap pe ar e d in
r espo nse to the first su mmo n s by filing a mot ion to
dismiss or an answer, he was, t herefore, already in court
when the a mended complaint was filed, in which case
mere service of the a me nded co mp la in t upon him i s
suffic ient w it ho u t the need for new s u m mo n s to be
served (Ong Peng us. Custodio, supra).

Sec . 3. By whom served. — The s u m m o n s ma y be


served by the sheriff, his d ep u t y , or ot h e r p rop er
Cou rt o f fi c e rs , o r for j u s t i f i a b l e re a s o n s b y an y
su i t ab l e p erso n au t h o ri ze d by the Cou rt i s s u i n g the
su m m on s . (5a)

Sec. 4 . Return. — Wh e n the s e r v i c e ha s b ee n


c o m p l e t e d , the se rve r sh all, w i t h i n five (5) day s
t h e re f ro m , serve a cop y of the ret u r n p e rs on a l l y or
b y re g i s t e re d mai l, t o the p l a i n t i f f s cou n s e l , an d
shall ret u r n the s u m m o n s t o the clerk wh o i ssu e d it,
a c c o m p a n i e d by p roof of servi c e. (6a)

Sec. 5. Issuance of alias summons. — If a


s u m m o n s i s r e t u r n e d w i t h o u t b e i n g s e rv e d o n
an y o r al l o f the d e f e n d a n t s , the s e r v e r s h a l l
als o serv e a cop y of the ret u r n on the p l a i n t i f f s
c o u n s e l , s t a t i n g the r e a s o n s for the f a i l u r e o f
se rvi ce , wi t h i n five (5) day s t h eref ro m . In suc h a
case , o r i f the s u m m o n s ha s bee n lost, the clerk, o
n d e m a n d o f the p la i n t i f f , ma y i s s u e a n ali a s
s u m m o n s . (4a)

244
RUL E 14 SUMMON S S E C S . 6- 7

NOTES

1. The e nu mer at io n in Sec. 3 of the persons who


may validly serve su mmo ns is exclusive. Thus, where
summo ns was served, wit hout aut horit y grant ed by the
court, by a police sergeant (Sequito vs. Letrondo, 105 Phil.
1139), by a po st mast er (Olar vs. Cuna, L-47935, May 5,
1978), or by a pat ro lma n (Bello vs. Ubo, et al., L-30353,
Sept. 30, 1982), such service was invalid and the court
did not acquire jur isdict io n over the defendant .

2. Proof of service is r equir ed to be given to the


plaint iffs counsel in order to enable him to move for a
default order should t he defendant fail to answer on t ime
or, in case of non-service, so t hat alias summo ns may be
sought. In eit her case, under this amended section, the
ser ver mus t serve a copy of t he r et ur n on p la int i f f s
counsel wit hin 5 days from complet ion or failure of the
service, which r equ ir e me n t was absent in the former
Rules.

Sec . 6. Service in person on defendant. — Wh en •


eve r p ra ct i cab le, the su m m on s shall be served by
h an d i n g a cop y t h ereo f to the d efen d an t in p erson ,
or, i f h e re f u s e s t o re c e i v e an d si g n for it, b y
t e n d e ri n g i t to him. (7a)

Sec. 7. Substituted service. — If, for ju st i fi ab l e


cau s e s , the d e f e n d a n t can n o t be serve d wi t h i n a
r e a s o n a b l e t i m e a s p r o v i d e d i n the p r e c e d i n g
secti on, servi ce may be effected (a) by leavi n g copi es
of the su m mo n s at the d efen dant ' s re si d en c e wit h
som e p e rso n o f su i t ab l e age and d i s c re t i o n th e n
re s i d i n g t h e re i n , or (b) by le avi n g the cop i e s at
d efend ant ' s office or regu lar place of b u si n es s wit h
some c o m p et e n t p erso n in charge thereof. (8a)

245
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 6- 7

NOT E S

1. T hese two sect io ns pro vide for two modes of


service of summons. The third mode is service of summo ns
by publicat ion (Secs. 14, 15 and 16). The court may also
provide for any other manner as it may deem sufficient
(Sec. 15).

2. . S u m mo n s ca nno t be ser ved by ma il.


Wher e service of summo ns is made by publicat ion, "a
copy of t he summo n s and order of t he court shall be
sent by regist ered mail to the last known address of
the defen• dant " (Sec. 15). That resort to regist ered
mail is only co mplement ar y to service of summo ns by
publicat ion, but i t does not mean t hat service by
regist ered mail alone would suffice. Thus, Sec. 22 of
the former Rule ent it led "Proof of service by registered
mail," which creat ed t hat mis i mp r e ss io n , a lt ho ug h i t
act uall y r e fer r ed only to t he r egist er ed mail as a
co mp le me nt in s u mmo n s by pu b l ic at i o n , ha s bee n
e l i m i n a t e d an d ha s not bee n repr oduced in t his
revised Rule. For t hat mat t er , the pur pose it int ended
to serve is at t ended to by Sec. 13, Rule 13.

3. In eject ment cases, being in personam, personal


service of summo ns on the defendant wit hin t he st at e of
the forum is essent ia l to acquire jur is dict io n over his
person, hence su mmo ns by publicat ion is null and void
(Ilaya Textile Market, Inc. vs. Ocampo, et al, L-27823,
Mar. 20, 1970).

4. Where the action is in personam and the defen•


dan t i s in the P hi l ip p i ne s , ser vice mus t be mad e in
accordance wit h Sec. 7. Subst it ut ed service should be
availed of only where the defendant cannot be prompt ly
ser ve d in per so n (Litonjua vs. CA, et al, L-46265,
Oct. 28, 1977).

246
RUL E 14 SUMMON S SE C . 8

5. The impossibilit y of personal service should be


explained in t he proof of service showing that efforts
were exert ed therefor, hence the resort to subst it ut ed
service (Keister vs. Navarro, et al., L-29067, May 31,
1977) and such facts must be report ed in the proof of
ser vice, o t her w is e the su bst it ut e d service i s invalid
(Busuego vs. CA, et al, L-48955, June 30, 1971; Arevalo,
et al. vs. Quilatan, et al., G.R. No. 57892, Sept. 21, 1982;
Ponio, et al. vs. IAC, et al., G.R. No. 66782, Dec. 20, 1984;
Venturanza vs. CA, et al., G.R. No. 77760, Dec. 11, 1987;
Samartino vs. Raon, et al, G.R. No. 131482, July 3, 2002).
Where, however, the subst it ut ed service of summo ns
UNDE R such cir cu mst ance s was not objected to by t he
defendant at the t rial where he vo lunt arily appeared by
counsel and t his objection was raised only for the first
time on appeal, t here was no quest ion t hat said summo ns
was actually and timely received by the defendant . The
doctrine in the aforecited cases was not applied and such
s u bs t it ut e d ser vice of su m mo n s was declar ed valid.
What ever defect t here was in such mode of service was
deemed waived and the court had acquired jur isdict ion
over the p er so n of the d e fe nd a n t by his vo lu nt a r y
submissio n t her et o (Boticano vs. Chu, G.R. No. 58036,
Mar. 16, 1987; cf. Umandap vs. Sabio, Jr., et al, G.R.
No. 140244, Aug. 29, 2000).

6. Alt hough the wife was not personally served with


summons, the service of such summons on her husband
was binding on her, where her husband apprised her of
t hat fact by t elegr am and she was also served wit h a
copy of the writ of preliminar y at t achme nt issued in the
case; hence, she was duly alert ed to the filing and pen•
dency of the act ion against her (De Leon vs. Hontanosas,
et al, L-40377, Oct. 29, 1975).

Sec. 8. Service upon entity without juridical


personality. — Whe n p erson s associ at ed in an entity

247
RUL E 14 R E M E D I A L LA W C O M P E N D I U M SE C . 8

wi t h ou t j u ri d i ca l p e rs on a li t y are su e d UNDER the


n am e b y wh i c h t he y are g e n e ra l l y o r c o m m o n l y
k n o w n , s e r v i c e ma y b e e f f e c t e d u p o n al l the
d e f e n d a n t s b y s e rv i n g upo n an y on e o f th em , o r
upo n the p erso n in charge of the office or p lace of
b u s i n e s s m a i n t a i n e d i n su c h n a m e . Bu t su c h
servi ce shall not bind i n di vidu ally any p erson wh os e
c o n n e c t i o n wit h the en t i t y has , upo n du e n ot i ce ,
bee n severe d before the act i on wa s brou gh t . (9a)

NOT E S

1. As a general rule and as provided in Sec. 1 of


Rule 3, only nat ur al or juridical persons may be part ies
in a civil act ion, but "ent it ies aut hor ized by law" may
likewise be part ies to a suit. Accordingly, Sec. 15 of said
Rule provides t hat an ent it y wit hout jur idical per sonalit y
may be sued under the cir cumst ances prescribed t her ein
in connect ion wit h a t ransact ion it may have ent er ed into
and the pr esent section provides the rule for summo ns
t hereon.
I t mus t no net heless be observed t hat such ent it y
w it ho ut jur idica l per so nalit y can be sued, but cannot
sue by init iat ing an original civil action. However, it is
s u b m i t t e d t hat as a m a t t e r of fa ir nes s an d logica l
procedure, once it is impleaded as a defendant to a suit,
i t may also file co u nt er c la i ms , cro ss- cla ims or ot he r
init iat ory pleadings for claims it may properly avail itself
of as, and since it is already, a part y to a suit.
Also, the previous provisions of Sec. 9 of this Rule
on this mat t er referred to "persons associated in business,"
t hus giving rise to the impression t hat only associat ions
engaged in business are co nt emplat ed t her ein and can be
sued as such defendant s. This section has been revised to
refer to and include "perso ns asso ciat ed in an ent it y
w it ho u t jur id ica l per so na l it y, " since asso ciat io ns not
engaged in business or commercial act ivit y, such as civic

248
RUL E 14 SUMMON S S E C S . 9 -1 0

associat ions or organizat io ns, can also commit act ionable


wrongs which can be a cause of action in a civil case.
2 . Wher e the act io n wa s br o ug h t a g a i n s t the
"Cerisco Blackcat Tr ading, " which des ig nat io n was a
combinat ion of the t r ade mar k and business name under
which t he o wner s of t he e s t a b l i s h m e n t were do ing
business, the summo ns served upon the "president/owner/
manager" of said firm, alt hough they were not impleaded
as defendant s in the complaint, was valid and the court
acquir ed jur isd ict io n over t hei r per sons as the same
complied wit h the provisions of Sec. 9 (now, Sec. 8) of
this Rule on service upon associat ions (Ablaza vs. CIR,
et al, L-33906, Dec. 21, 1983).

Sec. 9. Service upon prisoners. — W h e n the


d e f e n d a n t i s a p r i s o n e r c o n f i n e d in a j ai l or
i n st i t u t i on , s e rvi ce shall be effected upo n hi m by
the officer h a vi n g the m a n a g e m e n t of suc h jail or
i n st i t u t i o n wh o i s d ee m e d d e p u t i ze d as a sp eci al
sheri ff for said p u rp ose . (12a)

Sec. 10. Service upon minors and incompetents. —


When the d efen d an t i s a min or, i n san e or ot h e rwi s e
a n i n c o m p et e n t , servi c e shall b e mad e upo n hi m
p erson al l y and on hi s legal gu a rd i a n i f he ha s one,
or i f n o n e , u p o n hi s g u a r d i a n ad litem w h o s e
a p p o i n t m e n t shall be ap p li ed for by the plaintiff.
In the cas e of a min or, servi ce ma y also be made
on his father or mot h er. (10a, 11a)

NOTES

1. The import ant change introduced in Sec. 9 of this


Rule is the deput izat ion as a special sheriff of the head of
the penal inst it ut io n for the service of summo ns upon a
pr isoner confined t her e in. Consequent ly, t hat officer
who has the manage ment of the prison facility shall be

249
RUL E 14 R E M E D I A L LA W C O M P E N D I U M SE C . 11

charged with t he dut y of complying wit h the provisions


of Secs. 4 and 5 of t his Rule relat ive to the r et ur n on the
summo ns on the prisoner.
2. Wit h regard to Sec. 10, the changes consist of
the pr esent require ment t hat summo ns should be served
upon the minor, regardless of his age, and upon his legal
guardian or also upon eit her of his par ent s. In the case
of an inco mpet ent , service must also be made on him
personally or upon his legal guar d ia n, bu t not on his
p a r e nt s u nle s s , o bvio usly, whe n t he y ar e his lega l
guar d ia ns. In any event , i f the minor or inco mpet ent
ha s no legal gu ar d ia n , the plaint iff m us t o bt ain the
appo int ment of a guar dian ad litem for him.

Sec . 11. Service upon domestic private juridical


entity. — Wh e n the d e f e n d a n t is a c o r p o r a t i o n ,
p a r t n e r s h i p o r a s s o c i a t i o n o rg a n i z e d U N D E R the
law s of the P h i l i p p i n e s wit h a j u ri d i c a l p e rso n a l i t y ,
se rvi c e ma y b e mad e o n the p re si d e n t , m a n a g i n g
p a rt n e r , g e n e ra l m a n a g e r , c o r p o r a t e s e c r e t a r y ,
t re a su re r , or i n -h ou s e cou n sel . (13a)

NO TES

1. UNDE R t he for mulat io n in Sec. 13 of t his Rule


from which t his a mended sect ion was t aken, i t was held
t hat service upon a person ot her t ha n those ment ioned
t her e i n i s inva lid an d does not bind the co r po r at io n
(Delta Motors Corp. vs. Pamintuan, et al., L-41667,
April 30, 1976, cit ing Reader vs. District Court, 94 Pac.
2nd 8581, holding t hat service of su mmo ns on the wife of
the corporate secretary was not binding on the corporat ion;
cf. AM Trucking, Inc. vs. Buencamino, et al., G.R.
No. 62445, Aug. 31, 1983). But in Summit Trading &
Dev. Corp. vs. Avendano, et al. (G.R. No. 60038, Mar. 18,
1985), summo ns for the corporat ion served on the secretary
of the president t hereof was held to be binding on said

250
RUL E 14 SUMMON S SE C . 11

corporat ion as the secretary was considered an "agent"


of the corporat io n. The same is t rue where summo ns
was ser ved on the a d m i n ist r at ive Chief of Finance of
defendant corporat ion (Far Corp., et al. vs. Francisco,
etc., et al., G.R. No. 57218, Dec. 12, 1986).

2. Also, it was ruled t hat service of summo ns upon


the a ss ist a nt gener al ma nager for operat ions of a cor•
porat ion, holding office at a sub-st at ion is valid as he is,
in effect, a "manager" or "agent" of the corporat ion (Villa
Rey Transit, Inc., et al. vs. Far East Motor Corp., et al., L-
31339, Jan. 31, 1978) even if t he papers were lat er left wit h
the t eller due to the refusal of said assist ant general
ma nager to receive the same upon the t ender t hereof to
him. Wher e, however, su mmo n s in a case against a
co rpor at io n, wit h hea d office in Manila but wit h an
agenc y in Cebu, wa s ser ved on its su ppo sed br anc h
ma nager in Cebu but he apparent ly bet rayed the t rust
of the de fe nda nt cor porat io n by allowing an order of
default to be t aken against it, it was held t hat summo ns
was not validly served and no jur isdict ion was acquired
over the defendant corporat ion (First Integrated Bonding
& Insurance Co., Inc. vs. Dizon, etc., et al., G.R. No. 61289,
Oct. 27, 1983).

3. Along the same rat ionale, it was declared t hat a


lawyer who had made two special appearances in court
in behalf of a defendant corporat ion, to challenge the
validit y of service of summo ns upon it, is an agent of
said corporat ion under Sec. 3 of this Rule and summo ns
intended for said corporat ion may validly be served on
him (Filoil Marketing Corp. vs. Marine Dev. Corp. of the
Phil., L-29636, Sept. 30, 1982; Lingner & Fisher GMBH
vs. IAC, et al, G.R. No. 63557, Oct. 28, 1983).
4. The foregoing doctrines were obviously dictated
by the considerat ion t hat the former Sec. 13 of t his Rule
allowed service upon a defendant corporat io n to "be
made on the president , manager, secretary, cashier, agent

251
RUL E 14 R E M E D I A L LA W C O M P E N D I U M SE C . 11

or any of its directors." The aforesaid t er ms were obvi•


ously ambiguous and suscept ible of broad and so met imes
illogical int er pr et at io ns, especially t he word "agent" of
the corporat ion. The Filoil case, involving the lit igat ion
lawyer of the corpor at io n who precisely a pp ear e d to
challenge the validit y of service of summons, but whose
very appe ar ance for t hat pur po se was seized upon to
validat e the defective service, is an illust rat io n of the need
for t his revised sect ion wit h limited scope and specific
t erminology. Thus, the absurd result in the Filoil case
necessit at ed the a me nd me nt per mit t ing service only on
the in-house counsel of the corporat ion who is in effect
an emplo yee of the corporat ion, as dist ingu is hed from
an independent pract it ioner.

5. . The aforest at ed considerat ions


not wit hst anding, i t was believed t hat the ult imat e test on
the validit y and sufficiency of service of summo ns is
whet her the same and the at t achme nt s t heret o were
ult imat ely received by t he corporat ion under such
cir cumst ances t hat no undue prejudice was sust ained by
it from the procedural lapse, and t hat i t was afforded
full opport unit y to pr esent its r espo nsive p lea d ing s .
This i s bu t in accord wit h the e nt r e nc he d rule t hat
the end s of s u b s t a nt i a l just ic e should not be
su bo r d inat e d to t echn ic a l it ie s and, for which purpose,
each case must be examined wit hin t he factual milieu
peculiar to it.
T hus , i t wa s held t hat a lt ho u g h s u m m o n s wa s
served on a secret ar y of the corporat ion (not the official
corporate secret ary) and, t herefore, such service was made
on a person not aut horized to receive the same, where
said summo ns and the complaint were in fact seasonably
received by t he corporat ion from its said clerk, t here was
s u b s t a n t i a l co mp l ia nc e wit h the rul e on ser vice of
summo ns (G & G Trading Corporation vs. CA, et al., G.R.
No. 78299, Feb. 29, 1988).

252
RUL E 14 SUMMON S SE C . 11

6. However, the foregoing oscillat ing holdings were


clarified and/or overt urned in E.B. Villarosa & Partner
Co., Ltd. vs. Benito (G.R. No. 136426, Aug. 6, 1999) which
declared t hat the doct r ine of su bst a nt i a l compliance
followed under the 1964 Rules is no longer applicable in
view of the a me nd me nt s int roduced by the 1997 Rules of
Civil Procedure. It was pointed out t hat the new rule on
this point is rest rict ed, limited and exclusive, as follows:
"The designat io n of the persons or officers who
are aut hor ized to accept summo ns for a domest ic
corporat ion or part ner ship is now limited and more
clearly specified in Sec. 11, Rule 14 of the 1997 Rules
of Civil P r o cedur e. The rule now st at es 'gener al
m a n a g e r ' i n s t e a d of only ' ma na g e r ' ; 'co r po r at e
se cr et ar y ' inst ea d of 'secr et ar y'; and ' t r e a s u r e r '
inst ead of 'cashier.' The phrase 'agent, or any of
its directors' is conspicuously deleted in the new rule."
This ruling was reit er at ed in Mason, et al. vs. CA,
et al. (G.R. No. 144662, Oct. 13, 2003), where service of
summo ns was declared invalid because it was served on a
filing cler k of d e fe nd a n t co r po r at io n a lt ho u g h the
lat t er appeared to have event ually received the same.
7. A real part y in int erest-plaint iff is one who has
a legal right, while a real part y in int erest -defendant
is one whose act or omission violates the legal right s of
t he for mer. Wher e the defe nda nt st ill exist ed as a
corporat ion when the cause of action accrued, summons
may properly be served on it even if at the time of the
issuance and receipt of summo ns it had alread y been
dissolved. A defendant corporat io n is subject to suit
even if dissolved, as co nt emplat ed in Sec. 122 of the
Corporat ion Code. It should, therefore, be amenable to
such coercive process which may be served t hrough any
of t he per so n s me nt io ned in Sec. 13 (now, Sec. 11),
Rule 12 (Rebollido, et al. vs. CA, et al., G.R. No. 81123,
Feb. 28, 1989).

253
RUL E 14 R E M E D I A L LA W C O M P E N D I U M SE C . 12

Sec. 12. Service upon foreign private juridical entity.


— When the d ef en d an t is a forei gn p ri vat e j u ri d i cal
e n t i t y w h i c h ha s t r a n s a c t e d b u s i n e s s i n the
P h i l i p p i n e s , servi c e ma y be mad e on its re si d en t
agen t d e s i g n at e d in acco rd an c e wit h law for that
p u r p o s e , or, i f t h e r e b e n o su c h a g e n t , o n the
g o v e rn m e n t official d e si g n at e d by law to that effect,
o r o n an y o f it s o f f i c e r s o r a g e n t s w i t h i n the
Ph i l i p p i n e s . (14a)

NOTES

1. This section has been amended to subst it ut e the


phr ase "foreign pr ivat e juridical ent it y which has t ran•
sacted business in t he P hilippines," being more embracing
and accurat e, for the provision in the former Section 14
of t his Rule which referred to a "foreign corporat ion, or
a joint non-stock company or associat ion, doing business
in the Philippines."

2. . Former ly, where the foreign privat e


corporat ion had no r esident agent in t he P hilippines or
officers or ot her agent s here, service of summo ns was
made on the go ver nme nt officials des igna t ed by law, to
wit: (a) for banking, savings and loan or t rust
corporat ions, upon the S u p e r i nt e nd e n t of Bank s (Sec.
17, R.A. 337); (b) for insurance corporat ions, on the
I nsurance Commissioner (Sec. 177, Insurance Act, as
amended by Act 3152); and
(c) in the case of ot her corporat ions, on the Secr et ar y of
Commerce (Sec. 72, Act 1259, as amended by CA. 287,
R.A. 337 an d R.A. 1055). Ho wever, Sec. 123 of the
Co r po r at io n Code now pro vides t hat whe n a foreign
pr ivat e corporat io n applies for a license to do business
in the P hil ipp ines, i t shall be gr ant e d subject to t he
condit ion, inter alia, t hat if it ha s no r es ide nt agent ,
summo ns and processes int ended for it shall be served
on the Securit ies and Exchange Commission.

254
RUL E 14 SUMMON S SE C . 13

3. Where the service of su mmo ns is made on the


go ver nment official des ignat ed by law, the defe ndant
corporation has 30 days from its receipt of the summo ns
wit hin which to file it s a nswe r (Sec. 2, Rule 11). If
served on its resident agent, officers or other agent s in
the Philippines, the 15-day r eglement ar y period applies
(see Facilities Management Corp. vs. DelaOsa, L-38649,
Mar. 28, 1979).

4. The former Sec. 14 of t his Rule required, as a


condit ion sine qua non, t hat the foreign corporat ion is
doing business in the Philippines. In the absence of proof
thereof, bu t the claim of t he plaint iff is based on a
cont ract wit h said foreign corporat ion which provides
t hat all cont roversies ar is ing from said contract "shall
fall under the jur isdict ion of Philippine Courts," the suit
may be in s t it u t e d in the P h i l ip p ine s and ser vice of
summo ns may be made by publicat ion under a liberal
applicat io n of Sec. 17 (now, Sec. 15) of t his Rule in
relat ion to Rule 4 (Lingner & Fisher GMBH vs. IAC,
et al., supra).
It has, however, been held t hat a foreign corporation,
even if it is not doing business in the Philippines, may be
sued for acts done against persons in this country under
the rat ionale t hat even if it is not doing business here, it
is also not barred from seeking redress from Philippine
co urt s (Facilities Management Corp. vs. De la Osa,
supra; Wang Laboratories, Inc. vs. Mendoza, et al., G.R.
No. 72147, Dec. 1, 1987). Note t hat Sec. 12 now merely
r equ ir es t hat t he foreign corporat io n has transacted
business here.

Sec. 13. Service upon public corporations. — When


the d e f e n d a n t i s the Rep u b li c of the Ph i li p p i n es ,
servi ce may be effect ed on the Soli citor General; in
cas e of a p ro v i n c e , city or m u n i c i p al i t y , or like
public co rp o rat i on s, servi ce may be effected on its

265
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 4 -1 6

e xe c u t i v e h ead , or on suc h ot her officer or offi cers


as the law or the cou rt ma y d i rect. (15)

Sec. 14. Service upon defendant whose identity or


whereabouts are unknown. — In any act i o n wh er e the
d e f e n d a n t i s d e s i g n a t e d as an u n k n o w n own er , or
the like, or wh e n e v e r his wh e re a b o u t s are u n k n o w n
an d c a n n o t b e a s c e r t a i n e d b y d i l i g e n t i n q u i ry ,
se rv i c e may , b y leav e o f cou rt , b e effect e d u po n
hi m b y p u b l i c a t i o n i n a n e w s p a p e r o f g e n e r a l
ci rcu l at i o n an d in suc h p lace s an d for su c h tim e as
the Cou rt ma y order. (16a)

Sec. 16. Extraterritorial service. — Wh e n the


d e f e n d a n t doe s not resi d e an d i s not found in the
P h i l i p p i n e s , an d the act i o n affect s the p e r s o n a l
st at u s of the p lai n t i ff or re lat e s to, or the su b j ec t of
wh i c h is, p rop ert y wi t h i n the P h i l i p p i n e s , i n wh i c h
the d e f e n d a n t ha s or clai m s a lien or i n t ere st , act u a l o
r c o n t i n g e n t , o r i n w h i c h the re l i e f d e m a n d e d
c o n s i s t s , w h o l l y o r i n p a rt , i n e x c l u d i n g the
d e f en d a n t from an y i n t eres t th erei n , or the p rop e rt y
o f the d e f e n d a n t ha s b ee n a t t a c h e d w i t h i n the
P h i l i p p i n e s , s e rv i c e may , b y l e a v e o f c o u rt , b e
ef fect ed ou t of the P h i l i p p i n e s by p erson a l se rvi ce
as UNDER sect i o n 6 ; or by p u b li cat i o n in a n e w s p a p e r
of gen e ra l ci rcu l at i o n in suc h p lac e s an d for suc h
tim e as the Cou rt ma y order, in wh i c h cas e a cop y
of the s u m m o n s and ord er of the Cou rt shall be sen t
by re g i s t e re d mail to the last kn ow n ad d re s s of the
d e f en d a n t , o r i n an y ot he r m an n e r the Cou rt ma y
d e e m su f fi ci en t . An y ord e r g r a n t i n g su c h leav e
sh all speci fy a re a s o n a b l e ti me, wh i c h sh all not be
les s t h a n si xty (60) day s after n ot i ce, wi t h i n wh i c h
the d e f e n d a n t mu s t an sw e r . (17a)

266
RUL E 14 SUMMON S S E C S . 1 4 -1 5

NOTES

1. Sec. 15 provides for the four inst ances wherein


ext r at er r it or ial service of summo ns is proper. In any of
such four inst ances, service of summo ns may, by leave
of court, be effected by personal service, by publicat io n
wit h a copy of the su mmo ns and the court order sent
by regist ered mail, or in any ot her ma nner which the
court may deem sufficient. Where summonses were sent
to defendant s who were residing abroad, by regist ered
mail which they duly received and even filed a pleading
quest ioning such mode of service, the third mode of service
was subst ant ially complied wit h and such service is valid,
especially where the court t hereaft er granted t hem 90 days
w it hin which to file t he i r answ e r (De Midgely vs.
Ferandos, L-34313, May 13, 1975; Carioga, et al. vs.
Malaya, et al., L 48375, Aug. 13, 1986).

2. Where t he husband is a no nres ident , but his wife


is a resident and is his attorney- in-fact who even com•
menced an act ion in his behalf, in a complaint against
said no nr es id e nt defendant , su mmo ns may validly be
served on his wife and the court has jur isdict ion over said
no nr es ide n t (Gemperle vs. Schenker, et al., L-18164,
Jan. 23, 1967).

3. . UNDE R Sec. 15 of t hi s Rule,


e xt r a t e r r it o r i a l service of summo ns is proper only in
four inst ances, viz.:
(a) when the act ion affects the perso nal st at u s of the
plaintiff; (b) when the action relat es to, or the subject of
which is propert y wit hin t he P hilipp ines in which t he
defendant ha s or claims a lien or int er est , act ual or
cont ingent ; (c) when the relief demanded in such action
consist s, wholly or in part , in excluding the defendant
from any int erest in propert y located in the Philippines;
and (d) whe n t he d e fe nd a n t no nr e s id e nt ' s pr o pert y
has been at t ached in t he P hilippines (De Midgely vs.
Ferandos, supra).

267
RUL E 1 4 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 4 -1 5

4. An action for injunct ion to r est r ain defendant s


from enforcing against plaint iff its contract s for deliver y
of coconut oil to defendant s, wit h a claim for damages,
is not among those enu mer at ed. It is a personal act ion
in personam and per so na l or su bst it ut e d service, not
ext rat errit orial service, is required in order t hat Philippine
courts may acquire jur isdict ion over the defendant . This
is especially t rue wit h respect to the money judg me nt
so ugh t by pla int iff which, to be s u st a ine d , r equ ir e s
per so na l ser vice o n the d e fe nd a n t wit hin the St at e
which r ender ed t he judg me n t sought [Boudard, et al.
vs. Tait, 67 Phil. 170]. The e xt r at er r it o r ia l service of
su mmo n s effected on the defe nda nt s by DH L courier
ser vice wa s null and void (The Dial Corp., et al. vs.
Soriano, et al., G.R. No. 82330, May 31, 1988).

5 . Since the de fe nda nt is a no nr e s id e n t and t he


suit also involves real propert y in the P hilipp ines wherein
said defendant has an int erest , service of su m mo ns on
him by publicat ion in a local newspaper is aut hor ized by
Sec. 17 (now, Sec. 15) of t his Rule. While it may be true
t hat service of summo ns by publicat ion does not involve
any abso lut e assur ance t hat said nonr esident defend ant
sha l l t he r e b y r eceive act ua l not ice, suc h ser vice of
s u m mo n s i s r e qu ir e d not for pur po se s of phys ica l l y
a c q u ir i n g j u r i s d i c t i o n over hi s p e r s o n bu t simp l y
in p u r s u a nc e of the r e q u ir e me nt s of fair play. I t is
necessar y, however, t hat copies of the s ummo ns and t he
co mp la in t be duly ser ved a t de fe nda nt ' s las t kno w n
a d d r e s s by r e g i s t e r e d mail as a co m p le me n t to the
publicat ion. The failure to strict ly and correct ly comply
w it h t he r e q u i r e m e n t s o f the r u le s r e g a r d i n g the
mailing of said copies will const it ut e a fatal defect in the
aforesaid mode of service of summo ns (Sahagun vs. CA,
et al, G.R. No. 78328, June 3, 1991).

6 . Whe r e t he c o mp l a i n t doe s no t invo lv e the


p e r s o na l s t a t u s of p la int i ff or an y p r o p e r t y i n the

268
RUL E 14 SUMMON S S E C S . 1 4 -1 5

P h i l ip p i n e s i n whic h d e f e n d a nt s have or cla im an


int er es t or which the plaint iff ha s at t ac he d , i t is a
personal action in personam. Consequently, personal or
s u b s t it u t e d ser vice of s u m mo n s on de fe nd a nt s , not
ext r at er r it or ial service, is necessary to confer jur isdict ion
on the court. In a personal action for injunction, therefore,
ext r at err it o r ia l service of t he summo ns and comp laint
on t he no nr e s id e n t defe nd a nt s cannot confer on the
court jur isdict io n or power to compel t hem to obey its
orders (Kawasaki Port Service Corp., et al. vs. Amores,
etc., et al., G.R. No. 58340, July 16, 1991).

7. In Asiavest Limited vs. CA, et al. (G.R. No. 128803,


Sept. 25, 1998), an action was filed in Hongkong against
a Philippine r es ide nt for a sum of money. S u mmo ns
t herein was served direct ly t hrough plaint iffs Philippine
counsel upon an occupant of defendant ' s residence in
Quezon City. Thereafter, the judgment of the Hongkong
court was r end er ed and sought to be execut ed in the
Philippines, but it was resisted for lack of jurisdict ion over
the person of the defendant .
Mat t er s of procedure, such as service of summo ns, are
governed by the lex loci, in t his case, t hose of Hong•
kong. There being no proof on this score, under the rule
on processual presumpt ion t he same are deemed to be
the same as Philippine law. In the present case, such
s u m mo n s ser ve d on a no nr e s id e n t de fe nd a n t in an
act ion in personam is not valid since e xt r at er r it o r ia l
service of summo ns on nonresident s is allowed only in
the inst ances provided under Sec. 17, Rule 14. Service of
s u m mo n s in t hi s case being inva lid, the Ho ngko n g
judg me nt cannot be given effect here, no jur isd ict io n
having been acquired over the defendant.
8. A newspaper of general circulat ion for purposes
of summo ns by publicat ion, is one which is published for
the disseminat io n of local news and general information,
has a bona fide subscript ion list of subscribers, is published

259
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 6 -1 7

at regular int ervals and is not published for or devoted


to the int erest of a part icular group of persons (Basa vs.
Mercado, 61 Phil. 632). See also the provisions of R.A.
4883 , which r equ ir ed t hat the ne ws pa p e r mus t have
been regular ly published for at least two years before
the dat e of the publicat ion in quest ion, and P.D. 1079
(Jan. 28, 1977) as discussed in Fortune Motors (Phil.),
Inc. vs. Metropolitan Bank, etc., et al. (G.R. No. 115068,
Nov. 28, 1996).

Sec . 16. Residents temporarily out of the


Philippines. — Wh e n an y a c t i o n i s c o m m e n c e d
agai n s t a d e f e n d a n t wh o ord i n ari ly re si d e s w it h i n
the P h i l i p p i n e s , but wh o i s t emp o ra ri l y ou t of it,
se rvi ce may, by leav e of court, be also effect ed ou t
o f the P h i l i p p i n e s , a s UNDER the p re c e d i n g sect i on .
(18a)

Sec . 17. Leave of court. — Any ap p li c at i o n to the


cou rt UNDER thi s Ru le for leave to effect se rvi c e in
an y man n e r for wh i c h leav e of Cou rt i s n e c e s s a r y
sh all be mad e by mot i o n in wri t i n g , s u p p o rt e d by
a f f i d a v i t o f the p l a i n t i f f o r som e p e r s o n o n hi s
b eh alf, s e t t i n g fort h the g ro u n d s for the ap p l i •
cat i on . (19)

NOT E S

1. Under t hese provisions, service of su mmo ns by


publicat ion is aut horized, wit h prior leave of court:
a. Where the ident it y of the defendant is unknown;
b. Where t he wher eabout s of the defendant is un•
known;
c. Where the defendant does not reside and is not
found in t he P hilipp ines bu t t he suit can pr oper ly be
ma int ained against him here, being in rem or quasi in
rem; and

260
RUL E 14 SUMMON S S E C S . 1 6 -1 7

d. Wher e the d e f e nd a n t is a r e s id e n t of the


Philippines but is t emporar ily out of the country.
2. S u m mo n s in a su i t in personam a g a i n s t a
resident of the Philippines t emporarily absent therefro m
may be validly effected by su bst it ut ed service UNDE R
Sec. 7 of t his Rule. It is immat er ia l t hat the defendant
does not in fact receive act ual notice, and the validit y of
such service is not affected. While the present Sec. 15
provides for modes of service which may also be availed
of in t he case of a resident defendant t emporarily absent,
the normal mode of service on such t emporarily absent
defendant is by such subst it ut ed service under Sec. 7
because personal service outside the country and service
by publ icat io n ar e not o r dinar y me a n s of su m mo n s
(Montalban, et al. vs. Maxima, L-22997, Mar. 15, 1968).
However, it has also been held t hat in such cases, non•
co mpliance wit h the modes of service UNDER Sec. 18
(now, Sec. 16) is a denial of due process and r ender s
the proceedings null and void (Castillo vs. CFI of Bulacan,
G.R. No. 55869, Feb. 29, 1984).

3. . Also, it has been ruled t hat where the


defendant is a resident and the action is in personam,
summons by pu bl icat io n i s inva lid as being vio lat ive
of the due process clause. Plaint iff' s r ecour se, wher
e per so na l service fails, is to at t ac h propert ies of the
defendant under Sec. 1(f), Rule 57, t hus convert ing the
suit to one in rem or quasi in rem and su mmo ns by
publicat io n will be valid. Where plaintiff fails to or
cannot do so, the court should not dismiss the action but
should order the case to be held pend ing in the
archives, so t hat t he action will not prescribe, unt il
such time as the plaint iff succeeds in ascert aining the
defendant ' s wher eabout s or his propert ies (Pantaleon
vs. Asuncion 105 Phil. 761; Citizens Surety & Insurance
Co., Inc. vs. Melencio-Herrera, et al, L-32170, Mar. 31,
1971; Magdalena Estate, Inc. vs. Nieto, et al., G.R. No.
54242, Nov. 25, 1983; Filmerco

261
RUL E 14 R E M E D I A L LA W C O M P E N D I U M S E C S . 1 8 -2 0

Comm. Co., Inc. vs. IAC, et al., G.R. No. 70661, April 9,
1987).

Sec. 18. Proof of service. — The p roof of s e rvi c e


of a su m mon s shall be mad e in wri t i n g by the server
and shall set forth the man n er , p lace and date of
servi ce; shall sp eci fy an y p ap er s wh i c h hav e bee n
served wit h the p roces s and the nam e o f the p erso n
wh o recei ve d the same; and shall b e swor n t o wh e n
mad e by a p erso n ot h e r tha n a sh eri ff or his d ep uty .
(20)

Sec. 19. Proof of service by publication. — If the


se rvi ce ha s bee n mad e b y p u b l i c at i o n , servi c e ma y
be p roved by the affidavit of the p ri nt er, hi s foreman
o r p ri n c i p a l cle rk , o r o f the ed i t o r , b u s i n e s s o r
a d v e rt i s i n g man ager , to whi c h affidavit a cop y of
the p u b li cat i on shall be at t ach ed, and by an affidavit
s h o w i n g the d ep o si t of a cop y of the s u m m o n s and
ord e r for p u b l i c a t i o n i n the p os t offi c e, p o s t a g e
p rep ai d, d i rect ed to the d efen d an t by regi st e red mail
to hi s last k n o w n add res s . (21)

Sec. 20. Voluntary appearance. — The d e f e n d a n t ' s


v o l u n t a r y a p p e a r a n c e i n the a c t i o n s h a l l b e
e q u i v a l e n t t o servi c e o f s u m m o n s . The i n c l u s i o n
in a mot i o n to d i smi s s of oth e r grou n d s asi d e from
lack o f j u ri s d i c t i on ove r the p erso n o f the d e f e n d a n t
shall no t be d ee me d a vol u n t a r y a p p e a ra n c e . (23a)

NOTE

1 . Any form of a p p e a r a n c e in co u r t , by the


defendant , by his agent aut horized to do so, or by attorney,
is equivalent to service except where such appear ance is
precisely to object to the jur isdict io n of the court over the
person of the defendant (Carballo vs. Encarnacion, 92
Phil. 974). See Notes 4 and 5 under Sec. 1, Rule 16.

262
RULE 15

M O TIO N S

S e c t i o n 1. Motion defined. — A m o t i o n is an
ap p li c at i o n for reli ef oth e r tha n by a p lead in g, (la )

NOTE

1. T hi s a m e n d e d de f i n it io n of a mo t io n is a
consequence of t he provisions of Sec. 1, Rule 6 which limit
the meaning of a pleading to the wr it t en st at ement of the
respect ive claims and defenses submit t ed by the part ies
for appropriat e judgment , and Sec. 2 of the same Rule
which enu mer at es the pleadings allowed. However, as
explained in the notes t hereunder, a motion may also be
considered in a broad sense as in the nat ure of a pleading
since it is among the papers filed in court. Hence, Sec. 10
of t his Rule requires a qualified applicat ion to motions of
the rules applicable to pleadings.

Sec. 2. Motions must be in writing. — All mot i on s


shall be in wri t i n g excep t t h os e mad e in ope n court
or in the cou rs e of a h eari n g or trial. (2a)

Sec. 3. Contents. — A m o t i o n sh a l l st at e the


relief sou gh t to be ob t ai n ed and the grou n d s upo n
wh i c h i t i s b ased, and i f req u i red by th es e Ru les or
n ec e s sa r y to p rove facts alleg ed t h erei n , shall be
a c c o m p a n i e d b y s u p p o rt i n g affid avi t s and oth e r
p ap ers. (3a)

Sec. 4. Hearing of motion. — Except for mot i on s


wh ic h the cou rt ma y act upo n wi t h ou t p rej u d i ci n g
the ri ghts of the ad verse party, every wri tt en motion
shall be se t for h ea ri n g by the app li can t . Every
wri t t en mot i o n req ui red to be h eard and the notice

263
R E M E D I A L LA W C O M P E N D I U M

of the h e a ri n g t h e re o f sh al l be se rve d in su c h a
man n e r as to en su r e its recei p t by the oth e r party at
least t h re e (3) day s before the date of heari n g , u n les s
the cou rt for good cau s e set s the h e a ri n g on sh ort e r
n ot i ce. (4a)

NOT E S

1. The except ions to the t hr ee-day notice rule in


Sec. 4 are : (a) ex parte mo t io ns, (b) ur ge n t mo t io ns
(Bautista vs. Mun. Council of Mandaluyong, Rizal, 98
Phil. 409; Supreme Investment Corp. vs. Engineering
Equipment, Inc., L-25755, April 11, 1972), (c) mot ions
agreed upon by the part ies to be heard on sho rt er notice
(Tuazon & Co. vs. Magdangal, L-15047, Jan. 30, 1962)
or joint ly submit t ed by the part ies, and (d) mot ions for
su mmar y judg ment which must be served at least 10 days
before its hear ing (Sec. 3, Rule 35).

2 . This a mended section enunciat es the general rule


t hat all wr it t en mot ions shall be set for hear ing, even if,
as just st at ed, t hat hear ing may be conducted on less t ha n
3 days advance notice. Excepted from such r equir ement
for hear ing are the so-called non-lit igable or non-lit igat ed
mot ions, mea ning those which may be acted upon by the
court wit hout prejudicing the r ight s of the adverse part y.
While a mot ion may be allowed to be filed ex parte
and is an except ion to the 3-day notice rule, it does not
necessar ily mean t hat the hear ing t hereof shall be dis•
pensed wit h. The court may still hear the same ex parte,
t hat is, in t he absence of the opposing part y, since the
court can very well see to i t t hat the lat t er' s int er est s will
be duly protect ed. An ex parte proceeding merely means
t hat i t is t aken or gr ant ed at the inst ance and for the
benefit of one part y, and wit hout notice to or co nt est at io n
by an y par t y a d ve r s e l y affect ed (Janin vs. Logan,
209 Ky. 811, 273 S.W. 531; Stella vs. Mosele, 209 III.
App. 53, 19 N.E. 2d 433).

264
RUL E 15 MOTION S S E C S . 5- 6

3. It is no longer sufficient to just mail a copy of the


motion at least 3 days before the scheduled hear ing, as
this mode of service has often been abused to result in the
adverse part y' s receipt of such copy after the scheduled
hear ing due to the delay in the mails. Service of t hat
copy, UNDE R t his new sect ion, should be made in such
manner as shall ensure receipt of t hat copy at least 3 days
before the hear ing. This object ive can very easily be
achieved by perso nal service whenever feasible. For this
r easo n, Sec. 11 of Rule 13 pro vide s t hat , whe ne ve r
pract icable, service of pleadings and other papers shall be
done personally, subject to the except ions and sanct ions
specified t herein.

Sec. 6. Notice of hearing. — The n oti ce of h ea ri n g


shall be ad d ress e d to all part ies con ce rn ed , and shall
speci fy the ti m e an d date o f the h eari n g wh i c h mus t
not be later tha n te n (10) day s after the filing of the
mot i on . (5a)

Sec. 6. Proof of service necessary. — No wri t t e n


mot ion set for h ea ri n g shall be acted upo n by the
cou rt wi t h ou t proof of servi ce thereof. (6a)

NOTES

1. In the Court s of First Inst ance (now, Regional


Trial Courts) and the lower courts, a motion which does
not contain a notice of time and place of hearing is a useless
piece of paper and of no legal effect, e.g., in the case of a
motion for reconsiderat ion of a judgment or final order, it
does not int errupt the reglement ary period (Manila Surety
& Fidelity Co., Inc. vs. Bath Construction & Co., LI6636,
June 24, 1965; cf. Sebastian vs. Cabal, L-25699,
April 30, 1970). The same is t rue where the date for the
hear ing of t he mot ion is unint ellig ible , hence fatally
defective (Republic Planters Bank, et al. vs. IAC, et al.,
G.R. No. 63805, Aug. 31, 1984).

265
RUL E 16 R E M E D I A L LA W C O M P E N D I U M S E C S . 5-6

2. Any motion t hat does not comply wit h Secs. 4, 5 and


6 of t his Rule is a mere scrap of paper, should not be accepted
for filing and, if filed, is not ent it led to judicial cognizance
and does not affect any r egleme nt ar y period involved for the
filing of the requisit e pleading. Thus, where the motion
is (a) directed to the clerk of court, not to the par t ies, and
(b) merely st at es t hat t he same is submit t ed "for the
resolut ion of the court upon receipt thereof," said motion is
fatally defect ive (Cledera, et al. vs. Sarmiento, et al., L-
32450-51, June 10, 1971). This rul e ha s bee n app l ie d t o
mo t io n s for new t r ia l o r reconsiderat io n where no date for
hear ing the mot ion is i n d ic a t e d (Manila Surety & Fidelity
Co. vs. Bath Construction & Co., supra; Fulton Insurance
Co. vs. Manila Railroad Co., L-24263, Nov. 18, 1967; Magno
vs. Ortiz, L-22670, Jan. 31, 1969; In the Matter of
Proceedings for Disciplinary Action Against Vicente Almacen,
L-27654, Feb. 18, 1970; Sebastian vs. Cabal, supra; Vda.
deAzarias vs. Maddela, et al., L-25932, Mar. 19, 1971; Phil.
Advertising Counselors, Inc. vs. Revilla, et al., L-31869,
Aug. 8, 1973; Sacdalan vs. Bautista, L-38014, Mar. 27,
1974; New Japan Motors, Inc. vs. Perucho, L-44387,
Nov. 5, 1976; Firme, et al. vs. Reyes, et al., L-35858,
Aug. 21, 1979).

Where the motion to dismiss, with such defective notice


of hear ing, was grounded on lack of cause of act ion and
improper venue, which grounds are resolvable on the basis
of t he co mpla int an d t he anne xe s t her et o , such erro r
a lt ho ug h not wholly excusable was gr a nt e d a liber a l
considerat io n and given due course by t he S upr eme Court
(Azajor vs. CA, et al., L-40945, Nov. 10, 1986).

3. In Andrada, et al. vs. CA, et al. ( L- 3 1 7 9 1 ,


Oct. 30, 1974), it was held t hat a "M ani fest at io n and
Mot ion" addr essed to the clerk of court asking him to
submit t he same to the court "immediat ely upon receipt
t he r eo f did not comply wit h the r equ ir e me nt s of Sec. 5,

266
RUL E 15 MOTION S S E C S . 8, 9

Rule 15 and the subsequent action of the court t hereon


did not cure the flaw, for a motion with a notice fatally
defective is a "useless piece of paper." But a motion (to
dismiss) is sufficient even if notice of the hear ing thereof
is addressed to the opposing counsel as long as it st at es
the time and place of hear ing (OMICO Mining & Ind.
Corp., et al vs. Vallejos, et al, L-38974, Mar. 25, 1975).
The provisions of Sec. 4 requiring the notice to be addressed
to the oppo sing par t y i s mer ely d ir ect or y. Wha t i s
mandat ory is the service of the motion on the opposing
counsel indicat ing the time and place of hearing (Estipona
vs. Navarro, et al, L-41825, Jan. 30, 1976; Maturan vs.
Araula, G.R. No. 57392, Jan. 30, 1982). Even if t he notice
in the motion is defective for failure to st ate the exact date
of he ar ing , the defect is cur ed by t he court ' s t akin g
cognizance t hereof and the fact t hat the adverse part y
was ot herwise notified of the existence of said pleading
(Sun Uy Giok vs. Matusa, 101 Phil. 727).

Sec. 7. Motion day. — E x c e p t for m o t i o n s


re q u i ri n g i m m e d i a t e act i on , all mo t i on s shall be
sc h e d u l e d for h ea ri n g on Friday aft ern oon s, or i f
Friday is a n on - wo rk i n g day, in the aft ern oon of
the nex t wo rki n g day. (7a)

NOTE

1. This amended section was t aken from B.P. Blg.


129 which provides:
"Sec. 16. Time and duration of sessions. — The time
and durat ion of daily sessions of the Regional Trial Courts
shall be det er mined by the S upr eme Court: Provided,
however, T hat all mo t io ns , except t hos e r e q u ir i n g
immediate action, shall be heard in the afternoon of every
Fr iday, unless it falls on a holiday, in which case the
he ar in g sha l l be held on the aft er noo n of the next
succeeding business day: Provided, further, That the

267
RUL E 15 R E M E D I A L LA W C O M P E N D I U M S E C S . 8- 9

S upr e me Court may, for good r easo ns, fix a different


motion day in specified areas."

S ec . 8 . Omnibus motion. — S u b j e c t to the


p ro vi si on s of s ect i o n 1 of Rule 9 , a mot i o n a t t a c k i n g
a p l e a d i n g , order, j u d g m e n t , or p ro c e e d i n g shal l
i n c l u d e al l o b j e c t i o n s t h e n a v a i l a b l e , an d al l
ob j e ct i on s not so in clu d e d shall be d ee me d wai ved .
(8a)

NOTES

1. The omnibus motion rule in Sec. 8 yields to other


specific provis io ns. T hus, for inst ance, in a mot ion to
dismiss, the failure to object to the lack of jurisdict ion over
the case does not co nst it ut e waiver of t his object ion.
See Sec. 1, Rule 9, as amended, and the discussion t herein.

2. Regarding evidence on mot ions, see Sec. 7, Rule


133 and notes t her eu nder .

Sec. 9. Motion for leave. — A mot i o n for leav e to


file a p l e a d i n g or mot i o n shall be a c c o m p a n i e d by
the p l e a d i n g or mot i o n sou gh t to be ad m i t t e d , (n)

NO TES

1. The evident purpose of t his new provision is to


provide the court wit h the basis for det ermining the mer it s
of the mot ion for leave of court to file t he desired pleading
or motion. Such pleading or motion sought to be admit t ed
is now required to be at t ached to the motion for leave of
court, ot herwise the lat t er may be denied. Indeed, it is
too demanding, if not unfair to the court and the adverse
part y, to seek a ruling and t he admission of a pleading
sight unseen, so to speak, since the court will have to
fat hom the co nt ent s of the projected pleading and the
o ppo s in g p a r t y c a nno t i nt e l l i g e nt l y fo r mu l a t e his

268
RUL E 15 MOTION S SEC . 10

opposit ion to the admission thereof.

2. This part icular ly assumes significance in the filing


of amended and supple me nt al pleadings both of which
require prior leave of court. If init iat ory pleadings are
sought to be amended or supplement ed, special care must
be t aken in the admission of the same since responsive
pleadings and r eg le me nt ar y periods may be involved.
Also, the present requirement minimizes the time element
when responsive pleadings would be required. Thus, when
an amended or supple ment al complaint is att ached to the
motion for its admission and a copy thereof is necessarily
served on the defendant , his period to answer immediat ely
runs from his receipt of the court order admitt ing the same.
Ot herwise, where only a motion is filed and the same is
gr ant ed, t he plaint iff will be gr a nt ed time to file t he
amended or supple ment al complaint, the defendant will
have to wait for service on him thereof, and consequent ly
he will have furt her t ime to answer.

Sec. 10. Form. — The R u l e s a p p l i c a b l e to


p le ad i n g s shall ap p ly to wri t t e n mot i on s so far as
con ce rn s cap t i on , d esi gn at i o n , si gn atu re, and ot h er
mat t ers of form. (9a)

269
RULE 16

MOTION TO DIS M IS S

S ec t i o n 1. Grounds. — Wit hi n the tim e for but b e f o r


e f i l i n g the a n s w e r t o the c o m p l a i n t o r p l ead i n g
a s s e rt i n g a claim, a mot i o n to d i s mi s s ma y be mad e
on an y of the fol l o wi n g grou n d s :
(a) That the Cou rt ha s n o j u ri sd i ct i on ove r the
p erso n of the d e f e n d i n g party;
(b) That the cou rt ha s no j u ri sd i ct i on ove r the
su b j ect mat t e r of the claim;
(c) That ven u e i s i mp rop e rl y laid;
(d) That the p lain ti ff ha s no legal cap aci t y to
sue;
(e) T h a t t h e r e i s a n o t h e r a c t i o n p e n d i n g
b e t w e e n the sam e p art i e s for the sam e cau se ;
(f) That the cau s e of act i o n is b arred by a prio r
j u d g m e n t or by the st at ut e of li mi t at i on s ;
(g) That the p l e ad i n g a s s e rt i n g the clai m st at e s
n o cau s e o f act i on;
(h) That the clai m or d e ma n d se t forth in the
p l a i n t i f f s p l e a d i n g ha s bee n paid , w a i v e d ,
a b a n d o n e d , o r o t h e rw i s e e xt i n gu i s h ed ;
(i) T h a t the c l a i m o n w h i c h the a c t i o n i s fou n d e
d i s u n e n f o rc e a b l e UNDER the p ro v i s i o n s o f the
st at u t e of fraud s; an d

(j) Th at a c o n d i t i o n p r e c e d e n t for fi li n g the


clai m ha s not bee n comp li e d with , (la)

NO TES

1. A mot ion to dismiss under t his Rule differs from a

270
RUL E 16 M O T IO N T O D I S M I S S SE C . 1

motion to dismiss under Rule 33 on demur rer to evidence


in the following part icular s:
a. The mot ion UNDE R t hi s Rule i s gr o unde d on
preliminar y objections while t hat under Rule 33 is based
on insufficiency of evidence.
b. The motion here may be filed by any defending
part y against whom a claim is assert ed in the act ion,
while a demur r er to evidence may be filed only by the
defendant against the complaint of the plaintiff.
c. The motion under t his Rule should be filed wit hin
the time for but prior to the filing of the answer of the
defending part y to the pleading assert ing the claim against
him. The demur r er to evidence in Rule 33 may be filed
for the dismissal of the case only after the plaint iff has
completed t he pr esent at io n of his evidence.
d. The r ever sal on appeal of a dismissal ordered
under this Rule produces different effects from the same
reversal of a dismissal obtained under Rule 33.
2. The former Sec. 2 of t his Rule provided t hat a
motion to dismiss her eunder may be filed by an original
defendant , by a t hird-part y defendant , by a plaint iff in a
counterclaim, or by a co-party in a cross-claim. Alt hough
said former provision has not been reproduced in t his
amended Rule, the procedure is still the same as Sec. 1
hereof merely simplified the rule by providing t hat such
motion to dismiss may be filed by a party "(w)ithin the
time for but before filing the answer to the complaint or
pleading assert ing a claim."
3. A motion to dismiss hypothet ically admit s the
t rut h of the facts alleged in the complaint. Such admis•
sion, however, is limited only to all mat erial and relevant
facts which are well pleaded in the complaint. It does not
admit the t r ut h of mere epit het s char ging fraud, nor
allegat ions of legal conclusions, or erroneous st at ement s
of law. The hypothet ical admission of the t rut h of mat erial

271
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

and relevant facts well pleaded in a complaint does not


extend to inferences or conclusions drawn from such facts,
even if alleged in the complaint ; nor mere inferences or
conclusio ns from facts not st at ed; nor to ma t t e r s of,
evidence, surplusage or irrelevant mat t er s (De Dios vs.
Bristol Laboratories fPhil.J, Inc., et al., L-25530, Jan. 29,
1974); nor does it cover allegat ions of fact the falsity of
which is subject to judicial notice, for, in resolving a motion
to dismiss, the court may consider ot her facts wit hin t he
r ange of judic ia l not ice as well as r eleva n t laws and
jur ispr udence which court s are bound to take into account
(Bahez Electric Light Co. vs. Abra Electric Cooperative,
Inc., et al., G.R. No. 59480, Dec. 8, 1982). Neit her does
such hypot het ical admissio n ext end to facts which are
legally impossible, nor to facts inadmissible in evidence,
nor to facts which appear by record or document included
in the plead ings to be unfo unded (Tan vs. Director of
Forestry, et al., L-24548, Oct. 27, 1983; Marcopper Mining
Corp. vs. Garcia, G.R. No. 55935, July 30, 1986).

Except in those cases where the court may dismiss a


case motu proprio, an act ion cannot be dismissed on a
ground not alleged in the mot ion t herefor even if said
ground, e.g., pr escr ipt io n, is pro vided for in Rule 16
(Malig, et al. vs. Bush, L-22761, May 31, 1969), unless
such fact of pr escr ipt io n appear s in t he allegat io ns of
the co mplaint or in plaint iffs' evidence (Garcia vs. Mathis,
etc., et al, L-48557, Sept. 30, 1980). Wit h much more
reason should an order of dismissal be nullified if it is based
on a ground not aut horized by Rule 16, i.e., for supposedly
being moot and academic (Borje vs. CFI of Misamis Occ,
etc., et al, L-49315, Feb. 27, 1979).

4. The former doctrinal policy was t hat a part y may


challenge the jur isdict io n of the court over his person by
making a special appear ance t hro ugh a mot ion to dismiss
based on the gr o und, e.g., of inva l id it y of ser vice of
summo ns, and by filing such motion, he will not t hereby
be deemed to have submit t ed himself to the jur isdict io n of

272
RUL E 16 M O T IO N T O D I S M I S S SEC . 1

the court. However, if the same motion also raised other


g r o u nd s or invo ke d some a f f ir mat i v e r elie f which
necessarily involves the exercise of the jurisdict ion of the
court, such special appearance will be of no avail and the
part y is t hereby deemed to have submit t ed himself to the
jur isdict ion of the court. Thus, where the defendant filed
a motion to dismiss on the ground t hat summo ns served
on him was invalid and, therefore, t hat the court did not
acquire jur isdict ion over his person, but the same motion
set s forth a no t her ground under t hen Art. 222 of the
Civil Code (lack of showing t hat ear ne st efforts were
exerted to effect a compromise between members of the
same family) and prayed "for such other r elie f as may be
deemed "appropr iat e and proper," the reservat ion in said
motion t hat defendant was making a special appearance
to contest the court's jurisdict ion over his person is nullified
and should be d isr egarded (De Midgely vs. Ferandos, L-
34313, May 13, 1975). The same rule applied where the
defendant challenged the court's jurisdict ion over its person
for invalidit y of service of process but at the same time
raised the other ground of prescript ion in its motion to
dismiss (Republic vs. Ker & Co., Ltd., 124 Phil. 823).

5. However, in La Naval Drug Corp. vs. CA, et al.


(G.R. No. 103200, Aug. 31 , 1994), the S upr eme Court
decided to reexamine and abandon the foregoing doctrine.
It held t hat while lack of jur isdict ion over the person of
the defendant may be duly and seasonably raised, his
volunt ary appearance in court wit hout qualificat ion is a
waiver of such defense. Furt her more, even if he challenges
the jurisdict ion of the court over his person, as by reason
of absence or defective service of summons, and he also
invokes other grounds for the dismissal of the action under
Rule 16, he is not deemed to be in estoppel or to have
waived his objection to jurisdict ion over his person. In
support of this new doctrine, the observation may be added
t hat the defendant may after all invoke his object ions
alt ernat ively, hence he would not thereby be said to be

273
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

inco nsist ent ly challenging the jur isdict io n of the court


and, at the same t ime, calling for t he exercise of its
jur isdict ion. The first quest ions the jurisdict ion over his
person but the second, assuming the court has jur isdict ion
over his person, impugns its jurisdict ion over other aspects
of the case such as the fundament al requisite of jurisdict ion
over the subject - mat t er which can only be conferred by
law. Besides, t he pr e se nt at io n of all object ions t he n
available subser ves the o mnibus mot ion rule and the
conco mit ant policy against mult iplicit y of suit s.
There were, however, some differences of opinion due
to cert ain ambiguous st at eme nt s in the La Naval case.
Accordingly, Sec. 20 of Rule 14 now expressly provides
t hat the inclusion in a motion to dismiss of ot her grounds
aside from lack of jur isd ict io n over the per so n of t he
defendant shall not be deemed a volunt ar y appear ance
on his part .

6. . Wher e summo n s was not served on two of


t he defendant s and a lawyer filed, in t heir behalf but
wit hout t heir aut horit y, a mot ion for ext ension of t ime to
answer, the court does not acquire jur isdict ion over said
defendant s. Neit he r was such jur is d ict io na l defect
cured by t heir subsequent filing of a mot ion for new
trial as the same was based precisely on such defect and
to secure to said defendant s the opport unit y to be heard
(Cavili, et al. vs. Vamenta, Jr., etc., et al., G.R. No. 57771,
May 31, 1982). For obvious r easo ns , the co ns id er at io n s
discussed in De Midgely and La Naval have no
applicat ion to t his case under the c ir cumst ances
obt aining t herein.

7. The cont roversy r egar ding the ground of lack of


jur isdict io n over the nat ur e of the act ion, separat ely from
the subject thereof, led to the eliminat io n in t his Rule of
the for mer which was supposedly an innovat ive ground
in the 1964 Rules of Court. What may have been int ended
t her e i n were cases ass ig ned by law to quas i- jud ic ia l
ag e nc ie s , suc h a s i nt r a - c o r p o r a t e suit s whic h wer e
274
RUL E 16 M O T IO N T O D I S M I S S SEC . 1

exc lus ive ly vest e d i n the S ec ur it ie s an d E xc ha ng e


Commission, or to special courts such as tax suit s which
were wit hin the exclusive jur isdict ion of the Court of Tax
Appeals. If so, t his would properly const it ut e lack of
jur isdict ion over the subject -mat t er if such cases are filed
in the regular t rial court s. Wit hin their respect ive levels,
the regular t r ial courts have uniform jur isdict io n wit h
regard to the nat ure of the act ions they may ent ert ain,
hence if t he objection is as to the subject or object involved,
it would necessarily be on eit her subject-matter jurisdict ion
or on venue co nsiderat ions.

8. The jur isdict ional grounds which may be invoked


under the pr esent Rule are, t herefore, confined to lack of
jur isdict ion over the person of the defending part y and
the subject - mat t er of the claim. The first has already
been discussed, but it must not be overlooked t hat the term
now used is not limited to the defendant but applies to all
defending par t ie s aga ins t whom claims are a ss er t e d
t hrough other init iat ory pleadings, such as counterclaims,
cross-claims and t hird-part y complaint s. Jurisdict ion is
o bt aine d over the o r ig ina l d e fe nd a n t by ser vice of
summons and over the other defending part ies by service
of the ple ad in g co nt aining t he claim. Also, as now
amended, t his Rule refers to the subject -matt er of each
part icular claim and not only to t hat of the suit, as it was
under the former Rule, which t hereby applied only to the
complaint.
a. Jurisdict ion over the subject-matter is det ermined
by the allegat ions in the complaint regardless of whet her
or not the plaint iff is ent it led to recover upon all or some
of the claims assert ed t herein. The defenses assert ed in
the answer or motion to dismiss are not to be considered
for t his purpose, ot herwise the quest ion would depend
ent ir e l y upon the defe nda nt (Magay vs. Estandian, L-
28975, Feb. 27, 1976).

275
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

b. Where a part y invokes the jur isdict ion of a court


to obt ain affirmat ive relief and fails, he cannot t hereaft er
repudiat e such jurisdict ion. While t he issue of jurisdict ion
may be r a ise d a t an y t ime , he i s e st o ppe d as i t i s
t ant a mo u n t to speculat ing on the fort unes of lit igat ion
(Crisostomo, et al vs. CA, et al., L-27166, Mar. 26, 1970).
c. Where the jur isdict ion of the court is challenged
and t he court defers resolut ion of the motion or denies the
same, cert iorari and/or prohibit ion will lie as it would be
futile for the court to go ahead if it has no jur isdict io n
over the case. The same rule applies where the ground is
improper venue, as the t rial court, i f t he pet it ion t ur n s
out to be well founded, is act ing in excess of its jur isdict io n
(San Beda College vs. CIR, 97 Phil. 787; University of
Sto. Tomas vs. Villanueva, etc., et al, 106 Phil 439; Time,
Inc. vs. Reyes, etc., et al, L-8882, May 31, 1971). This
ruling is still good but with the modification t hat, pur suant
to amended Sec. 3 of t his Rule, t he court can no longer
defer resolut ion of the motion.
d. I t has been held t hat even i f t he claim in the
complaint was below the jur isdict io nal limit for the t hen
Court s of F ir s t I nst a nc e , if t he defe ndant , inst ea d of
moving to dismiss, filed a count erclaim for P12,000 which
was t hen wit hin t he exclusive original jur isdict io n of said
Courts of First Instance, such counterclaim cured the defect
in t he complaint (Zulueta, et al. vs. Pan American World
Airways, Inc., L-28589, Resolution on Motion for
Reconsideration, Jan. 8, 1973). It is submit t ed, however,
t hat said resolut ion, under the facts t herein, was more
properly sust ainable under the principle of estoppel by
laches on the par t of the defendant , as discussed in the
preliminar y chapt er of t his book, and which pr inciple was
also relied on by t he S upr e me Co urt in its aforesaid
resolut ion in t hat case.

e. Where the owner of a condo miniu m corporat ion


sold a unit t hereof on inst allme nt s with reservation of

276
RUL E 16 M O T IO N T O D I S M I S S SE C . 1

ownership unt il t he price is fully paid, and the buyer


default s, the courts, and not the Securit ies and Exchange
Commission, have jurisdict ion over the nature of the action
because the owner rema ins as a stockholder for the unit
sold, hence no int ra-corporat e issue is involved (Sunset
View Condominium Corp. vs. Campos, Jr., etc., et al.,
G.R. No. 52361, April 27, 1981). Also, an action to compel
a corporation to issue shar es of its capital stock in payment
of its cont ract ual obligat ion and undert aking in favor of
the plaint iff will not be dismissed on the ground t hat the
court has no jur isdict ion over the nat ure of the action since
such a situat ion does not involve an intra-corporate mat t er
c o nt e m p l a t e d in P.D . 902- A an d i s not w it hin t he
jur isdict ion of the Securit ies and Exchange Commission
(DMRC Enterprises vs. Este del Sol Mountain Reserve, Inc.,
G.R. No. 57936, Sept. 28, 1984). Likewise, an action to
compel the corporat ion to regist er the shares of stock
allegedly sold to plaint iffs does not involve an intra-corpo•
rate mat t er as plaint iffs are not yet stockholders but are
only seeking to be regist ered as such (Rivera, et al. vs.
Florendo, et al, G.R. No. 57586, Oct. 6, 1986). However,
an action to compel the defendant corporat ion to render
an account ing and dist ribut ion of the shar es of stock, with
the dividends due t hereon, of plaint iffs' predecessor-in-
int erest is an int ra-corporat e conflict and is not within
the jur isdict io n of the courts but of the Securit ies and
Exchange Commission (Malayan Integrated Industries
Corp. vs. Mendoza, etc., et al, G.R. No. 75238, Sept. 30,
1987).
See, in this connection, the Interim Rules of Procedure
for Int ra-Corporat e Cont roversies (AM. No. 01-2-04-SC),
i m p l e m e nt i n g the pr o c ed ur a l c ha nge s in R.A. 8799
(Appendix W).
9. Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibit ion (Enriquez
vs. Macadaeg, 84 Phil. 674; Bautista vs. De Borja, et al, L-
20600, Oct. 28, 1966).

277
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

10. Where the plaint iffs filed the act ion in a court of
improper venue and t hereaft er submitted to its jurisdiction,
the issue of venue was t hereby waived and t hey are in
estoppel to repudiat e or quest ion the proceedings in said
court (Vda. de Suan, et al. vs. Cusi, et al., L-35336,
Oct. 27, 1983).
11. . Objection to venue is also impliedly waived
where the part y ent ers into trial, cross-examines the
wit nesses of the a d ve r s e par t y an d adduce s
evide nc e (Paper Industries Corp. of the Phil. vs. Samson,
et al., L-30175, Nov. 28, 1975).

12. Lack of legal capacity to sue means t hat the plain•


tiff is eit her not in the exercise of his civil r ight s or does
not have t he c har act er or r epr esent at io n t hat he claims
(Lunsod vs. Ortega, 46 Phil. 664).
a. . Wher e the p la int i ff i s no t the r ea l p ar t y in
int erest , the ground for the mot ion to dismiss is lack of
cause of act ion (Casimiro vs. Roque, et al., 98 Phil. 880).
b. A fo r eign c o r po r at io n do ing bu s i n e s s in the
Philippines w it ho ut the requisit e license to do so cannot
ma int a in any suit in t he P hilippines (Sec. 69, Act 1459,
now Sec. 133, Corporation Code; Marshall-Wells Co. vs.
Elser & Co., 48 Phil. 70; Atlantic Mutual Insurance Co.,
Inc. vs. Cebu Stevedoring Co., Inc., L-18961, Aug. 31,
1966), but not where the case involves a mere isolated
t ransact io n (Aetna Casualty & Surety Co., Inc. vs. Pacific
Star Line, L-26809, Dec. 29, 1977; Hathibhai Bulakhidas
vs. Navarro, et al, L-49695, April 7, 1986). But if the
said foreign corporat ion is sued in our court s, it may, by
wr i t of pro hibit io n, seek relie f ag a i ns t the wro ngfu l
assumpt io n of jur isdict io n and its pet it ion t herefor need
not aver its legal capacit y to inst it ut e said proceeding
(Time, Inc. vs. Reyes, etc., et al, supra).
c. The issue of plaint iffs lack of legal capacit y to sue
cannot be raised for the first time on appeal where the

278
RUL E 16 M O T IO N T O D I S M I S S SE C . 1

d e fe nd a n t dea l t wit h the for mer as a par t y in the


proceedings below (University of Pangasinan Faculty
Union vs. University of Pangasinan, et al., G.R. No. 63122
Feb. 21, 1984).

13. The pendency of anot her action, or litis pen•


dentia, as a ground for a motion to dismiss, requires t hat
the par t ie s to t he act ion are the same; t hat t her e i s
subst ant ial ident it y in the causes of action and reliefs
s o u g ht ; an d t ha t the r e s u l t o f the fir st act io n i s
det er minat ive of the second in any event (Northcott &
Co. vs. Villa- Abrille, 41 Phil. 462) and regardless of which
part y is successful (Arceo vs. Oliveros, et al., L-38251,
Jan. 31, 1985). The motion to dismiss may be filed in
eit her suit, not necessar ily in t he one inst it ut ed first
(Teodoro vs. Mirasol, 99 Phil. 150; Magsaysay vs.
Magsaysay, et al., L-49847, July 17, 1980).
The Supr eme Court has repeatedly held, however,
t hat when the element s of litis pendentia exist, the action
filed lat er should be abat ed, based on the maxim t hat qui
prior est tempore, potior est jure (he who is before in time
is the bet t er in r ight ). This is especially t rue where in the
act ion first filed, the court ha s alr ea d y co mmenced
proceedings (Pacsports, Phils., Inc. vs. Niccolo Sports,
Inc., G.R. No. 141602, Nov. 22, 2001).
The pendency of an administ rat ive case between the
part ies does not generally const it ut e litis pendentia in
anot her civil or criminal case between t hem (Solandro
vs. Ramos, et al., L-20408, April 27, 1967). There can be
litis pendentia if the same cause of action is the subject of
a complaint in one case and of a counterclaim in anot her
as long as the ot her requisit es are pr esent (Arceo vs.
Oliveros, et al., supra). This ground is also referred to in
some decisions as lis pendens or outer action pendant
(see Buan, et al. vs. Lopez, G.R. No. 75349, Oct. 13, 1986).

14. Res judicata, as a ground for dismissal, requires


a previous final judg ment in a case prosecuted between

279
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

the same part ies involving the same subject - mat t er and
cause of action (Roman Catholic Archbishop vs. Director
of Lands, 35 Phil. 339). The trial court can t ake judicial
notice of the finalit y of a judgment previously decided by
it and the fact t hat the same case is now pending before
it, the defeated part y having refiled the same (Baguiao
vs. Jalagat, et al., L-28100, Nov. 29, 1971). The principle
of res judicata applies to all cases and pro ceed ings,
inc luding land r egist r at io n and cada st r a l proceedings
(Republic vs. Estenzo, L-35376, Sept. 11, 1980). See
Secs. 47 and 48, Rule 39 and the notes t her eu nder .

15. The defense of prescr ipt ion is waived and cannot


be considered on appeal if not raised in the t r ial court
(Ramos vs. Osorio, L-27306, April 29, 1971; Director
of Lands vs. Dano, et al., L-31749, Feb. 21, 1980).
Ho wever, i f the a lleg at io ns of the comp la int , or t he
evidence present ed, clearly indicate t hat the act ion has
pr e s cr ibe d , or wher e t her e i s no issue in fact as to
prescr ipt io n, the defense of prescr ipt io n is not deemed
waived by defendant ' s failure to allege the same (Chua
Lamko vs. Dioso, 97 Phil. 821; Garcia vs. Mathis, supra).
Generally, estoppel and prescr ipt io n cannot be invoked
a g a in s t the S t at e (Republic vs. CA, et al., L-45202,
Sept. 11, 1980). En contra, note t hat the rule in cr iminal
cases is different, as discussed in Sec. 9, Rule 117.

16. A motion to dismiss on the ground of prescript ion


will be given due course only if t he complaint shows on its
face t hat t he act ion ha s alr eady pr escr ibed (Sison vs.
McQuaid, 94 Phil. 201; Francisco, et al. vs. Robles, et al,
94 Phil. 1035; Aznar III, et al. vs. Bemad, etc., et al,
G.R. No. 81190, May 9, 1988). If it does not so appear,
the det erminat io n of the motion to dismiss must be deferred
unt il t rial (Cordova vs. Cordova, 102 Phil. 1182; Seno, et
al. vs. Mangubat, et al., L-44339, Dec. 2, 1987).
See, however, Sec. 3 of t his Rule which now prohibit s
defer ment of the resolut ion of the mot ion.

280
RUL E 16 M O T IO N T O D I S M I S S

17. Whe n the gr o un d for d is m is s a l i s t hat the


co mplaint st at e s no cause of act ion, such fact can be
det ermined only from t he facts alleged in the complaint
(Mindanao Realty Corp. vs. Kintanar, et al., L-17152,
Nov. 30, 1962) and from no other (Marabilles vs. Quito,
100 Phil. 64; Boncato vs. Siason, et al., L-29094, Sept. 5,
1985), and the court cannot consider other mat t ers aliunde
(Salvador vs. Frio, L-25352, May 29, 1970). This implies
t hat the issue must be passed upon on the basis of the
allegat ions assuming t hem to be t rue and the court cannot
inquire into the t rut h of the allegat ions and declare t hem
to be false; ot herwise, it would be a procedural error and
a denia l of due pro cess to the plaint iff (Ventura vs.
Bernabe, L-26769, April 30, 1971; Galeon vs. Galeon, et
al., L-30380, Feb. 28, 1973). The exception was provided
by the former Sec. 2, Rule 9, i.e., where the motion to
dismiss on t his ground could be filed during the trial, in
which case the evidence present ed was to be considered.
Also, i t has been held t hat under this ground the trial
court can co ns ider all t he plead ings filed, inc lud ing
annexes, motions and the evidence on record (Marcopper
Mining Corp. vs. Garcia, G.R. No. 55935, July 30, 1986),
inc luding do cu me nt ar y evidence st ipulat ed upon and
which is before the court (Santiago vs. Pioneer Savings
& Loan Bank, et al., G.R. No. 77502, Jan. 15, 1983).
However, it has likewise been held t hat even if the
complaint st ated a valid cause of action, a motion to dismiss
for insufficiency of cause of act ion will be gr ant ed if
document ar y evidence admit t ed by st ipulat ions discloses
facts sufficient to defeat the claim and enables the court
to go beyond the disclosures in the complaint. In such
instances, the court can dismiss a complaint on this ground
even w it ho u t a hear ing , by t ak in g into account the
discussio ns in said mot ion and the opposit ion t her et o
(Tan vs. Director of Forestry, et al., L-24548, Oct. 27, 1983).
This cont roversy which appeared to have been due to
confusion over the s it uat io ns wher ein the co mplaint

281
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

does not allege a sufficient cause of act ion and t hat


wherein, at the t rial, the evidence does not sust ain the
cause of action alleged, has been clarified by incorporat ing
said Sec. 2 in an amended form as the present Sec. 1 of
Rule 9 . Refer to sai d new pr o vis io n an d the no t e s
t her eunder .
a . Co u r t s sho u l d e xer c is e u t m o s t car e an d
c ir cu ms p e ct io n i n p a s s i n g upo n mo t io n s t o dis m is s
based on t his ground (Militante us. Antero, et al., L-27940,
June 10, 1971). The t es t is w he t he r , a s s u m i n g the
allegat io ns of fact in t he complaint , a valid judg me n t
could be r ender ed in accordance wit h the pra yer in t he
complaint . Where the allegat io ns are sufficient but the
veracit y of t he facts are assailed, t he motion to dismiss
should be denied (Suyom, et al. us. Collantes, et al., L-
40337, Feb. 27, 1976).
b. Where the facts alleged to make out the principal
cause of act ion and relief are insufficient, the case should
be dismissed and plaint iff cannot rely on ancillary mat t er s
in the co mplaint to make out a cause of action. T hus,
when the act ion is for cancellat ion of the defendant ' s t it le
but the allegat ions t herein are inadequat e, plaint iff cannot
lean on his allegat ions of supposed imp ro vement s made
on the land as t hese are purely ancillary to the pr incipa l
relief sought (Gabila us. Barriaga, L 28917, Sept. 30,
1971). Neit her can such defect be cured by the allegat ions
in a co mp la int in int er ve nt io n filed by a t hir d part y
(Nacar us. Nistal, et al., L-33006, Dec. 8, 1982).
c. Where a complaint does not cont ain all the facts
co nst it ut ing the pla int iffs cause of act ion, it is subject to
a motion to dismiss. However, if the defendant per mit s
evide nc e to be int r o d uc ed , w it ho u t object io n, which
su pp l ie s the ne c e s s a r y a l l e g a t io n i n suc h defect ive
complaint, this evidence cures t he defects of such complaint
which may no longer be dismissed on that account and
the court shall awar d such relief as is consist ent wit h the

282
RUL E 16 M OTION S T O DI SM IS S SE C . 1

case made out by the pleadings and the evidence (Pascua


us. CA, et al., G.R. No. 76851, Mar. 19, 1990).

18. Unlike a motion to dismiss on the ground t hat


the complaint st at es no cause of action, a motion invoking
the St at ut e of Fr auds may be filed even if the absence of
a cause of act ion does not appea r on t he face of the
co mp la int . Such absence may be proved dur in g t he
hear ing of the motion to dismiss on said ground (Yuvienco,
et al. us. Dacuycuy, etc., et al., G.R. No. 55048, May 27,
1981). For the St at ut e of Fr auds, see Arts. 1403(2), 1405
and 1406, Civil Code.

19. The former Rule did not provide specific grounds


for a motion to dismiss where the action, was filed wit hout
the plaint iff having exhaust ed all administ rat ive remedies
before going to court, a basic rule of polit ical law which is
accepted in adject ive law. Similar ly, it did not have any
such provision, because it was not t hen cont emplat ed, for
the s it u a t io n wher e pr io r r e fer r a l for co nc il iat io n
p r o c e e d i n g s wa s r e q u i r e d b y the K a t a r u n g a n g
P a mbar a nga y Law (P.D. 1508), and lat er by the Local
Government Code (R.A. 7160), before the case may be filed
in co urt and the plaint iff did not comply wit h such
prerequis it e. The remedy t hen was to authorize a motion
to dismiss such act ion for failure to state a cause of action
or even for pr e mat ur it y , desp it e the dubiet y of such
grounds.
On the other hand, t hen Sec. l(j) of said Rule provided
as a ground for a motion to dismiss the fact t hat the suit
was between member s of the same family and no earnest
efforts t owar ds a compromise have been made, which
provision was actually t aken from Art. 222 of the Civil
Code. T hes e t hr e e s i t u a t i o n s , an d ot he r s i m i la r
cont ingencies, are now embraced in and assailable under
the new ground for dismissal provided in the revised Rule,
t hat is, non-compliance with a condition precedent for the
filing of the claim.

283
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

Save for the change in t erminology, t herefore, the


former rulings by t he Supr eme Court on said sit uat io ns
are st ill applicable mutatis mutandis and are wort h
reproducing herein, but wit h the caveat on the grounds
t hen availed of, as provided in the former Rule.
a . Wher e the p la i nt i f f ha s no t e x h a u s t e d all
administ r at ive remedies, the complaint not having alleged
the fact of such exhaust ion, the same may be dismissed
for lack of cause of act ion (Pineda vs. CFI of Davao, et al., L-
12602, April 25, 1961; Sarabia vs. Sec. of Agriculture and
Natural Resources, L-16002, May 23, 1961; Gone, et al. vs.
District Engineer, et al, L-22782, Aug. 29, 1975; Abe-Abe, et al.
vs. Manta, et al, L-4827, May 31, 1978), alt hough it does not
affect the jur isd ict ion of the court over the subject -
mat t er (Mun. of La Trinidad, et al. vs. CFI of Baguio-
Benguet, et al, L-33889, June 28, 1983). If this objection
is not raised at the proper time, it is waived and t he court
can try the case (C.N. Hodges vs. Mun. Board, etc., et al,
L-18276, Jan. 12, 1967; Soto vs. Jareno, et al, L-38962, Sept.
15, 1986). For the inst ances where exhaust ion of
administ r at ive remedies is not required, see Note 7 under
Sec. 5, Rule 1.
b. I t was believed t hat the same doctrinal rules will
apply wher e the case was covered by t he Kat ar u nga n g
P a mbar a nga y Law (P.D. 1508) and not excepted from the
compulsory process of ar bit r at io n required t her ein as a
precondition for filing a complaint in court. Thus, where
the complaint does not st at e t hat it is one of the excepted
case s , or i t does not allege pr io r a v a i l m e n t of said
conciliat ion process, or it does not have a cert ificat ion t hat
no conciliat ion or set t le me nt had been r eached by the
par t ies, t he case should be dismissed on mot ion. This
applies to cases cognizable by both the inferior court s and
t he Regional Trial Court s (Morata vs. Go, et al, G.R.
No. 62339, Oct. 27, 1983).
S u bs equ e nt l y , in Royales, et al. vs. Intermediate
Appellate Court, et al. (G.R. No. 65072, Jan . 3, 1984),

284
RUL E 16 M O T IO N T O D I S M I S S SEC . 1

where the defendant-appellant had part icipated in the trial


court w it ho u t an y invo cat io n of P.D. 1508 and the
j u d g m e n t t he r e i n ha d beco me e xec u t o r y , bu t said
defendant t hereaft er sought the annulment of the decision
for alleged lack of jur isdict ion, the same was denied under
the doctrine of estoppel by laches as held in Tijam vs.
Sibonghanoy (L-21450, April 15, 1968). Non-compliance
with P.D. 1508 only result s in lack of cause of action or
p r e m a t u r it y (see Vda. de Borromeo vs. Pogoy, G.R.
No. 63277, Nov. 29, 1983; Peregrina, et al. vs. Panis, et
al, G.R. No. 56011, Oct. 31, 1984). The sit uat io n is
analogous to non-exhaust io n of administ rat ive remedies
(Gone, et al. vs. District Engineer, et al, supra) or, as
formerly framed, the lack of ear nest efforts to compromise
suits bet ween family me mber s (then Sec. lfjj, Rule 16;
Peregrina, et al. vs. Panis, et al, supra; cf Agbayani vs.
Belen, et al, G.R. No. 65629, Nov. 24, 1986).
This objection, not being jur isdict ional in nat ure, is
deemed waived if not raised in a motion to dismiss (Ebol
vs. Amin, et al, G.R. No. 70237, Mar. 18, 1985; Gonzales
vs. CA, et al, G.R. Nos. 59495-97, June 26, 1987; cf.
Millare vs. Hernando, et al, G.R. No. 55480, June 30,
1987; Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29,
1988).
The co mp l a i n t ma y b e d i s m i s s e d wher e the
complainant , after due notice, wilfully fails to appear on
the dat e set for mediat ion, conciliation or ar bit r at io n.
Upon a s im i lar failure of r espo ndent to appear, any
compulsory count erclaim he has made shall be dismissed
and may not be filed in court and complainant shall be
issued a certificat ion for filing his action in the proper
co urt , g o v e r n m e n t agency or office (Alinsugay vs.
Sagampang, et al, G.R. No. 69334, July 28, 1986).
c. The fact t hat t he suit is exclus ively bet ween
members of the same family is a ground for dismissal if no
ear nest efforts at compromise had been made (Art. 222,
Civil Code; Art. 151, Family Code). This ground is,

285
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 1

t her e fo r e, not ava ila ble wher e a co mpr o mise of the


controversy is not permit t ed by law, as where it involves
civil st at us, validit y of marr iage or legal separat ion,
grounds for legal separat io n, future support, jur isdict io n
and future legit ime (Art. 2035, Civil Code). The same
rule applies even if the co mplaint asks for support in
ar r ear s, which is per mit t ed to be compromised, but it also
seeks future support (Mendoza vs. CA, et al., L-23102,
April 24, 1967). As to who are considered me mber s of a
"family," Art . 217 , Civil Code, p r o vided t hat famil y
relat ions shall include those (1) bet ween husband and wife;
(2) bet ween par ent and child; (3) among ot her ascendant s
and t heir descendant s; and (4) among brot hers and sist ers
(Gayon vs. Gayon, L-28394, Nov. 26, 1970). Art. 150 of
t he Family Code ame nded the foregoing e nu me r at io n
regarding siblings, to specify "whet her of the full or half-
blood."
Failur e to allege in the complaint t hat ear nest efforts at
compromise had been made by t he plaint iff before filing t he
act ion is not a ground for a motion to dismiss if one of the
part ies is a st r anger (Magbaleta vs. Gonong, L-44903, April
25, 1977) or where the suit is bet ween collat eral relat ives
who are not brot her s or sist ers and, t herefore, not
me mber s of t he same family (Mendez vs. Bionson, L-32159
Oct. 28, 1977).

20. . The doctrine of forum non conveniens is not


a g r o u n d for a mo t io n t o d i s m i s s U N D E R t hi s
Ru le . Concept ually, t his means t hat a court, usually in
conflicts- of-law cases, may refuse imposit ions on its
jur isdict io n where it is not the most convenient or
available forum and t he part ies are not precluded from
seeking remedies elsewhere (Bank of America, etc. vs.
CA, et al., G.R. No. 120135, Mar. 31, 2003).
Mor eo ver, the pr o pr iet y of d is miss ing a case on t his
pr inciple r equ ir e s a fact ual det er minat io n, hence it is
more properly considered as a mat t e r of defense. The
t rial court, consequent ly, has the discret ion to abst ain
from assuming jur isdict io n over the
286
RUL E 16 M O T IO N T O D I S M I S S SEC . 1

the case on t his ground (Raytheon International, Inc. vs.


Rouzie, Jr., G.R. No. 162894, Feb. 26, 2008).
Thus, for inst ance, where the defendant 's pet it ion for
review in the Court of Tax Appeals was dismissed nolle
prosequi and t he Government inst it ut ed the tax collection
suit in the Regional Trial Court as a consequence thereof,
but dur ing t he pendency of said tax collection suit, the
de fe nda nt ' s pet it io n for review in the Court of Tax
Appeals was reinst at ed, said defendant can t hen move for
dismissal of the tax collection suit in the Regional Trial
Court on the ground of litis pendentia even if he had
already filed his answer t herein.
21 . Sect ion 1 of t his a me nded Rule lays down a
branch of t he so-called "o mnibus mot ion rule" which
provides t hat defenses or objections not pleaded eit her in a
motion to dismiss or in the answer are deemed waived,
except the objections specified t herein which are considered
not waivable.
a. Lack of jurisdict ion over the subject mat ter may
be invoked as a defense at any stage of the action, even if
no such objection was raised in a motion to dismiss or in
the answer, and it may be so claimed even after the trial
had commenced (Ker & Co. vs. Court of Tax Appeals, et
al, L-12396, Jan. 31, 1962).

b. It will readily be observed t hat in said Section 1,


t hr e e ot he r except io ns have been e xpr ess l y added,
namely, t hat (1) t here is anot her action pending between
the same part ies for the same cause (litis pendentia), (2)
the proceeding is barred by a prior judgment (res judicata),
and (3) the case wa s ext ingu ised by the s t at ut e of
limit at ions (prescript ion). These addit ional except ions
were not explicitly provided for in the 1964 Rules of Court,
part icular ly Section 2 of Rule 9 thereof. Notably, it is
clearly st at ed t hat any of these addit ional except ions may
appear in "the pleadings or the evidence of record."

287
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 3

c. Where any of the four defenses are pr esent in


the case, Section 1 direct s t hat the court shall dismiss the
claim. If, despite such direct ive, t he court shall fail to do
so, the logical and speedy remedy of the defendant is to
move to dismiss the claim regardless of the st at us of the
init iat ory of responsive st at us of the pleadings vis-a-vis
each ot her. Manda mu s to compel such dismissal may
t hereaft er be availed of as the successive remedy should
the Co urt b e r e c a lc it r a n t desp it e the fact t hat such
dismissal is its mandat or y dut y. This is aside from such
ad m i n is t r at iv e s a nct io ns as may be w a r r a nt e d by its
nonfeasance in a minist er ial funct ion.

d. In Matela vs. Chua Tay (L-16796, May 30, 1962),


pet it ioner challenged the propriet y of a motion to dismiss
on the ground of litis pendentia which was present ed after
the mo vant ' s answer to the complaint had alread y been
filed, hence t he dismissal of t he case obt ained t her eby
should be set aside. The S upreme Court disregarded t hat
cont ent ion since both the answer (which was filed earlier)
and the mot ion to dismiss "cont ained the defense and/or
gr o un d of pe nd e nc y of a no t he r act io n, " an d all t he
r e q u i s i t e s of res judicata wer e p r e s e n t . Wit h the
aforement ioned a me nd me nt of Section 1 of this Rule which
now co ns ider s litis pendentia as an except io n to the
o mnibus mot ion rule, t his cont roversy need no longer
arise.

e. Quiaoit vs. Consolacion, et al. (L-41824, Sept.


30, 1976) explained the dict um t hat a motion to dismiss
may also be allowed for some special reasons on grounds
ot her t ha n lack of cause of action or lack of jur isdict io n
over the subject - mat t er, even after t rial of the case had
alr eady begun but evidence co nst it ut ing a ground for
dismissal of t he case is discovered dur ing t hat t rial. The
reaso n given is t hat said mot ion serves to suppleme nt the
aver me nt s of the defendant ' s answer and to adjust the
issues t o the p la i nt i f f s t est i mo n y . This r u lin g wa s

288
RUL E 16 M O T IO N T O D I S M I S S SEC . 1

reit erat ed in Ruiz, Jr. vs. CA, et al. (G.R. No. 101566,
Mar. 26, 1993).

f. The a m e n d m e n t of S ect io n 1 of t hi s Rule


providing t hat the except ions to the omnibus motion rule
may be g leaned from t he evidence on record (which
includes the case where t rial has begun) forestalls any
challenge on t hat score. Also, the liberalizat ion of other
former holdings on belated motions to dismiss t hus affirm
t hat procedural rules, as essent ial tools for the obtent ion
of just ice, should not be lit erally constricted by petrified
logic in t heir applicat ion. In any event, where the motion
to dismiss falls out side the general rule on allowable
grounds and/or time limits, but invokes judicial discret ion
due to special reasons, as ear lier noted, the bett er practice
is to move for leave of court therefor so t hat the sit uat ion
may be present ed and the t ribunal put on guard.
22. . An action cannot be dismissed on the ground
t hat the complaint is vague or indefinite. The remedy
of the defendant is to move for a bill of part iculars or avail
of the proper mode of discover y (Galeon vs. Caleon,
et al., L-30380, Feb. 28, 1973).
23. . Court s do not ent ert ain moot quest ions or
issues, t hat is, t hos e whic h cease to pr e s e n t a
ju st ic ia b l e controversy such t hat a resolut ion thereof
would be of no pract ical use or value and no legal relief is
needed or called for.
However, courts will still decide cases, otherwise moot
and academic, If (1) t her e is a grave violat ion of the
Const it ut ion; (2) an except ional charact er of the situat ion
and the par a mo unt public int erest is involved; (3) the
c o ns t it ut io na l issue r a ise d r equir e s fo r mu lat io n of
controlling principles to guide the bench, the bar and the
public, and (4) the case is capable of repet ition yet evading
review (Lu vs. Lu Ym Sr., et al. G.R. No. 153690, Aug. 26,
2008, which other cases jointly decided).

289
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 2

Sec. 2. Hearing of motion. — At the h e a ri n g of


the mot i on, the p art i es shall su b mi t thei r a rg u m e n t s
o n the q u e s t i on s o f law and th ei r ev i d en c e o n the
q u e s t i on s of fact i n volved e xcep t t h os e not avai lab le
a t t h at t i m e . S h o u l d the cas e g o t o t ri a l , the
e v i d e n c e p r e s e n t e d d u r i n g the h e a r i n g s h a l l
au t o m at i ca l l y be part of the e v i d e n c e of the p art y
p re s e n t i n g the same , (n)

NO TES

1. This new provision of t he Rule int r o duces two


import ant changes, i.e., (1) at the hear ing of the motion,
the part ies shall submit all ar gu me nt s and evidence t he n
a v a i l a b l e , an d (2) t he e v id e nc e p r e s e n t e d sha l l
aut omat ically const it ut e par t of the evidence at the t ria l
of the part y who pr ese nt ed t he same. I t will also be
recalled t hat in accordance wit h Rule 15, such motion shall
be in wr it ing (Sec. 2) and t hat t here must be a hear ing
t her eo n (Sec. 4).
The o bvio us pur po s e of t hes e a m e n d m e n t s i s to
avoid unnecessar y delay in the t r ial court, and to have a
sufficient frame of refer ence should the t r ial co urt ' s
disposit ion of the mot ion be quest ioned in a higher court.

2. . Under the former Rule, i t was held t hat


the absence of a formal hear ing on a motion to dismiss
which was gr ant ed does not const it ute reversible error
where the mot ion is gro unded on lack of cause of
act ion and the existence or lack of it is det er mina ble by
reference to the facts alleged in the challenged pleading.
The issue raised in the mot ion having been fully
discussed t herein and in the opposit ion t hereto, oral
ar gument s on the motion would be an unnecessar y
ceremony. The int end me nt of the law in r equir ing a
hear ing on the mot ion, t hat is, to avoid unfair surpr ises and
to enable the adverse part y to meet the ar g u me nt s in the
motion, have been sufficient ly met under the foregoing
cir cumst ances (Castillo, et al. vs. CA,
290
RUL E 16 M O TIO N T O DI SM I S S SEC . 3

et al., G.R. No. 52008, Mar. 25, 1988). It is believed t hat


such ruling may still be favorably considered under the
new Rules UNDE R t he same c ir cu mst ance s o bt aining
t herein.

Sec. 3. Resolution of motion. — Aft er t he he a r i n g ,


t he Co ur t ma y d i s m i s s t he act io n o r claim, de n y t he
mo t io n o r o r d e r t he a m e n d m e n t o f t he p le a d i ng .
The C o ur t shal l no t defe r t he r e s o lu t i o n o f t he
mo t io n for t he r e a s o n t hat t he g r o u n d r elie d upo n i
s no t i n d u b i t a b l e .
I n ever y cas e , t he r e s o lu t io n sha l l st at e c le ar l y
an d d i s t i n c t l y t he r e a s o n s t he r e fo r . (3a)

NOT E S

1. Amendat or y of the previous provision on these


aspects in Rule 16, t here are now only t hree courses of
action open to the trial court when a motion to dismiss is
present ed, i.e, to grant, to deny, or to allow amendment of
the pleading.
The former practice allowed a fourth option, which
was for the court to defer resolut ion of the motion if the
ground therefor did not appear to be indubit able. Not
only was t hat alt er nat ive product ive of delay or abuse,
but it was often unnecessar y and tended to afford a pat h
of least resist ance. Furt her more, in view of the provisions
of the next preceding section requiring present at ion of all
available argument s and evidence, there would be no need
for the t rial court to defer action unt il the t rial. The
evidence present ed, and such addit ional evidence as it may
require, would enable it to rule upon the dubitabilit y of
the ground alleged.
T hese co ns id er at io n s resolve and set aside t he
doubtful rule in Antam Consolidated, Inc., et al. vs. CA,
et al. (G.R. No. 61528, July 31, 1986) wherein the court

291
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 3

was allowed to defer resolut ion of a motion to dismiss since


the judge did not have the necessar y facts to rule upon
the capacit y to sue of a foreign corporat io n; and t hey
reinforce t he ho lding in Foster Parents Plan Interna•
tional/Bicol, et al. us. Demetriou, et al. (G.R. No. 74077,
July 7, 1986) t hat it was gross error to defer resolut ion of
the mot ion where the grounds were lack of jur isdict io n or
lack of cause of action since the allegat ions of the complaint
are deemed admit t ed and the issue can be resolved wit hout
wait ing for trial on the mer it s.
2. . Wher e a he ar in g wa s held an d
d o c u m e nt a r y evidence wa s pr e s e nt e d by t he
defendant , not on his motion to dismiss but against
the pla int iffs applicat ion for a writ of pr eliminar y
injunct ion, but said evidence wa s ad m it t e d by the
plaint iff, such evide nce can be considered in resolving
the mot ion to dismiss (Santiago us. Pioneer Savings &
Loan Bank, et al., G.R. No. 77502, Jan. 15, 1988).

3. . Adopt ing previous doctrinal injunct io ns, such


as t hat in Continental Bank vs. Tiangco (G.R. No.
50480, Dec. 14, 1979), it is now specifically required by this
section t hat the r e so lut io n o n the mot io n shal l
c lear l y an d dist inct ly st at e the reasons therefor. This
proscribes the common pract ice of perfunctorily
dismissing the mot ion "for lack of mer it ." Such cavalier
disposit ions can often pose difficulty and
m isu nder st and ing on the par t of the aggrieved part y in
t aking recourse therefrom and likewise on t he hig he r
court called upon to resolve the sa me , usually on
cert iorar i.

4. . An o r de r d e n y i n g a mo t io n to d i s m i s s
i s int er lo cut o r y an d not appea l a bl e (Harrison
Foundry & Machinery, et al. vs. Harrison Foundry
Workers Association, et al., L-18432, June 19, 1963), but
an order gr a nt in g a mot ion to dis m is s is final an d
appea la ble (Monares vs. CNS Enterprises, 105 Phil.
1333 fUnrep.J). However, if the order of dismissal is not
292
an adjudicat ion

293
RUL E 16 M O T IO N T O D I S M I S S SEC . 3

on the mer it s, as where the venue is improperly laid, t hat


the plaint iff has no legal capacit y to sue, litis pendentia,
t hat the complaint st at es no cause of action or t hat a
condit io n pr ec ed e n t for filing t he suit ha s not been
complied with, such dismissal is not a bar to anot her action
when the cir cumst ances change and war r ant the refiling
and prosecut ion of the same.

5. While an order denying a motion to dismiss is


int erlocutory, and non-appealable, if the denial was with
grave abuse of discret ion or is wit hout or in excess of
jurisdict ion, prohibit ion will lie (see Moreno vs. Macadaeg, L-
17908, April 23, 1968; Espiritu, et al. vs. Solidum, et
al., L-27672, July 25, 1973). Cert iorari and prohibit ion are
proper remedies from such order of denial (Alban vs.
Madarang, et al, L-32963, Sept. 30, 1971; Van Dorn vs.
Romillo, et al, G.R. No. 68470, Oct. 8, 1985; Newsweek,
Inc. vs. IAC, et al, G.R. No. 63559, May 30, 1986; PNB
vs. Florendo, et al, G.R. No. 62082, Feb. 26, 1992).
6. Where the defect is curable by a me nd me nt as
where the complaint st at es no cause of action, and the
co urt unco nd it io na l l y r efuses to allow a me nd m e nt ,
the same is reversible error (Macapinlac vs. Repide, 43
Phil. 770). However, the plaint iff must move for leave to
amend t he complaint before the dismissal order becomes
final (Constantino vs. Reyes, L-16853, June 29, 1963).
Also, where the dismissal was merely for failure to allege
ear nest efforts to compromise a suit between members of
the same family (Verzosa vs. Verzosa, L-25609, Nov. 27,
1968), now subsumed under the ground of non-compliance
with a condit ion precedent, such refusal is improper as
the defect is curable by amendment . This presupposes,
of course, t hat t here were really such earnest efforts as
alleged.

7. A case should not necessarily be dismissed, on


motion of the defendant, because the original summons
was wrongfully served or t here was failure of service.

294
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 4

The court can instead issue an alias summons for service


on the defendant (Far Corp. vs. Francisco, etc., et al.,
G.R. No. 57218, Dec. 12, 1986).

Sec. 4. Time to plead. — If the mot i o n is d en i e d ,


the movan t shall file hi s an s we r wi t h i n the b alan c e
of the p e ri o d p re s c ri b e d by Rul e 11 to wh i c h he
wa s en t i t le d a t the tim e o f se rv i n g hi s mot i on , but
not less tha n five (5) day s in an y even t , c o m p u t e d
fro m hi s re c e i p t o f the n o t i c e o f the d e n i a l . I f
the p lead i n g i s ord ere d to be a m e n d ed , he shall file
hi s an s we r wi t h i n the p eri od p re s c ri b e d by Rule 11
c o u n t e d fro m s e r v i c e o f the a m e n d e d p l e a d i n g ,
u n les s the Cou rt p rovi d e s a lon ge r p eri od . (4a)

NO TES

1. In t he 1964 Rules of Court, Sec. 4 of t his Rule


provided t hat where the mot ion to dismiss is denied or
r eso lut io n t her eo f i s deferred, t he defenda nt had t he
ent ire r egle ment ar y period all over again wit hin which to
file his answer, reckoned from his receipt of the court's
order, unless ot herwise provided by said court. Prior
t her et o, the rule was t hat the filing of a mot ion to dismiss
only suspended the r unning of the r egleme nt ar y period
and, upon its denial, the defendant had only the balance
of the r egle me nt ar y period wit hin which to file his answer.
This a mended sect ion enunc iat es a change in policy and
revives in par t the old pract ice of gr ant ing the defendant
only the balance of the r egle ment ar y period to which he
was ent it led at the t ime he filed his motion to dismiss,
count ed from his receipt of the denial order. The same
rule of gr ant ing only t he balance of the period is followed
where the court, inst ead of denying the motion to dismiss,
orders the a me nd me n t of the pleading challenged by his
motion, in which case the balance of the period to answer
runs from his receipt of the ame nded pleading.

293
RUL E 16 M O T IO N T O D I S M I S S SE C . 6

However, in order t hat the defendant may at least


not be unduly denied the opport unit y to file his responsive
pleading, in the first inst ance he shall be allowed not less
t han 5 days to do so where the balance of the reglement ar y
period is less t ha n t hat . In the second instance, the court
may provide a longer period under the same cont ingency.

2. When the period for filing the answer has been


suspended, as by defendant 's filing of a motion for a bill
of part icu lar s, a motion to dismiss may t hereaft er be filed
wit hin t he r emaining period to file the answer since t he
time to file the latt er is coterminous with t hat for the former
(Dumanan, et al. vs. Butuan City Rural Bank, et al., L-
27675, Dec. 15, 1982).

Sec. 5. Effect of dismissal. — Su bj ect to the right


of ap p eal, an ord er gran t i n g a mot i o n to d i smi s s
b ase d on p a ra g r a p h s (f)» (h) and (i) of se ct i o n 1
h ereof shall bar the refi li ng of the same act ion or
claim, (n)

NOTES

1. The action cannot be refiled if it was dismissed


on any of these grounds: (a) res judicata, (b) prescript ion,
(c) e x t i n g u i s h m e n t of the cla im or d e m a nd , an d
(d) unenforceabilit y under the St at ut e of Frauds.
2. On the mat t er of prescript ion, if what is referred
to is t hat the cause of action is barred by the st at ut e
of lim it at io ns, t hat is, t hat the act ion has prescribed
(Arts. 1139 to 1155, Civil Code), the motion to dismiss
shall be grounded on par. (f) of Sec. 1. If what is involved
is the fact t hat the ownership or other real rights claimed
have prescribed, or a case of ext inct ive prescript ion is
involved (Arts. 1117 to 1138, Civil Code), then the ground
for the motion to dismiss should properly be based on
par. (h) of Sec. 1 since the plaint iffs claim or demand has
been ext inguished.

296
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 6

Sec. 6. Pleading grounds as affirmative defenses. —


I f no mot i o n to d i s mi s s ha s bee n filed, an y of the
g ro u n d s for d i s m i s sa l p rovi d e d for in thi s Rule ma y
be p lead e d as an affi rmati ve d efen s e in the an sw e r
and, in the d i sc ret i o n of the cou rt, a p re li m i n a r y
h ea ri n g ma y be had t h ereo n as i f a moti o n to d i s mi s s
had bee n filed. (5a)
The d i s m i s s a l o f the c o m p l a i n t UN D E R t h i s
s e c t i o n s h a l l b e w i t h o u t p r e j u d i c e t o the
p r o s e c u t i o n in the sam e or s e p a r a t e a c t i o n of a
c o u n t e rc l a i m p lea d e d in the an sw e r , (n)

NO TES

1. . UNDE R t he pr act ice before 1964, wher e


t he defendant filed a mot ion to dismiss and the same
was uncondit ionally denied, t he grounds raised by him in
said motion could no longer be pleaded as affirmat ive
defenses as the resolut ion t hereof had already been
concluded by t he denial of his mot ion. If he did not
file a mot ion to dismiss, t hen he could raise any of the
grounds t herefor as a f f ir m a t i v e d e f e ns e s i n hi s
a n s w e r an d hav e a preliminar y hear ing t hereo n as if a
mot ion to dismiss had been filed.
Despit e the change of phraseo logy UNDE R the 1964
Rules, i t appear s t hat the same procedure applied, and
where the defendant did not move to dismiss he could
allege any of the grounds therefor, except improper venue,
as affirmat ive defenses in his answer. On the ot her hand,
where a mot ion to dismiss on the grounds of res judicata
and litis pendentia were unco nd it io na l l y denied, said
grounds could no longer be raised as affirmat ive defenses
in t he answer, as well as the ot her grounds to dismiss
available at the t ime the mot ion was filed, except those of
failure to st at e a cause of act ion and lack of jur isdict io n
which were not deemed waived (Heirs of Juliana Clavano
vs. Genato, et al. L-45837, Oct. 28, 1977).

295
RUL E 16 M O T IO N T O D I S M I S S SE C . 6

However, even if the defendant had moved to dismiss


but the ground relied upon by him was not definitely
resolved by the court, i.e., where resolut ion t hereon was
deferred as t he n allowed, such ground could st ill be
averred as an affirmat ive defense in the answer.

2. Under the present amended section, if no motion


to dismiss had been filed, any of the grounds for dismissal,
including improper venue, may be pleaded as affirmative
defenses and preliminar ily heard in the discret ion of he
court. The provisions of Sec. 4, Rule 4 under the 1964
Rules of Court, which r equir ed t hat impr oper venue
should be raised in a motion to dismiss otherwise it is
deemed waived, has been e l i minat ed in t he pr e se n t
revision.
Also, the ruling in the aforecited Clavano case should
be deemed modified by eliminat ing therefrom the reference
to the ground of failure to st ate a cause of action, since
t hat except ion was based on the former provisions of
Sec. 2 of Rule 9 which, as ear lier explained, has been
deleted and rephrased in Sec. 1 of the same Rule.
3. The second par agr ap h of t his section has now
clarified the effect of the dismissal of the complaint upon
a count erclaim duly pleaded in the action.
4. A motion to dismiss is not a responsive pleading,
hence the filing thereof does not preclude the plaintiff from
doing what he can lawfully do before the defendant
files his answer, i.e., amend his complaint (Rodriguez vs.
Fernan, L-15143, Nov. 29, 1961; Soledad vs. Mamangun, L-
17988, May 30, 1963) and admission of such amended
complaint may be compelled by mandamus (Republic vs.
Ilao, L-16667, Jan. 30, 1962).
5. An order grant ing a motion to dismiss, rendered
after the deat h of the plaintiff which was duly reported to
the court in a motion to subst it ute the deceased by his
heirs but before subst it ut ion was ordered, is invalid. The

298
RUL E 16 R E M E D I A L LA W C O M P E N D I U M SE C . 6

right to the propert y involved was vested in the heirs upon


the deat h of t heir predecessor wit hout the necessit y for a
declarat io n of heirs, hence such order gr ant ing the mot ion
to dismiss denies t hem the right to be subst it ut ed as part ies
in t he case wit hout their day in court (Bonilla vs. Barcena,
et al., L-41715, June 18, 1976).

6. Under t his amended sect ion, any of the grounds


for dismissal provided for in this Rule, may be alleged as
affir mat ive defenses and a preliminar y hear ing may be
had t her eo n if no motion to dismiss on any of said grounds
had been filed and resolved. Sec. 5(b) of Rule 6 enumer at es
some affir mat ive defenses such as fraud, illegalit y and
estoppel, and jur ispr udence has also provided ultra vires
acts and unco nst it ut io nalit y of t he st at ut e involved as
addit ional affir mat ive defenses. Since t hese defenses and
ot hers by way of confession and avoidance are not among
the grounds for a motion to dismiss under Rule 16, while
the same may be alleged as affir mat ive defenses to be
proved as such dur ing the t rial, it would not be proper to
hav e a p r e l i m i n a r y h e a r i n g t h e r e o n U N D E R the
cir cumst ances and for the purpose co nt emp lat ed in this
section.
The fu r t he r a m e n d m e n t e m p h a s i z e s t ha t t he
preliminar y hear ing aut horized t her ein is not mandat ory,
since the grant t hereof may be had in the discretion of
the court (246 Corporation, etc. vs. Daway, etc., et al.,
G.R. No. 157216, Nov. 20, 2003).

297
RULE 17

DISM IS SAL OF ACTIO NS

S ect i o n 1. Dismissal upon notice by plaintiff. — A


c o m p l a i n t ma y be d i s m i s s e d by the p l ai n t i f f by
fi li n g a n o t i c e of d i s m i s s a l at an y ti m e b efor e
servi ce of the an swe r or of a mot i on for su mma r y
j u d g m en t . Upon suc h n ot i ce bein g filed, the court
sh al l i s s u e a n ord e r c o n f i r m i n g the d i s m i s s a l .
Un less ot h e rwi s e st at ed in the not i ce, the d i smi ssa l
is wi t h ou t p reju di ce, excep t that a notice op erat e s
as an adj u d i cati on upo n the meri t s whe n filed by a
p lai n t i ff wh o ha s onc e d i smi s s e d in a c o m p et e n t
Cou rt a n act i o n b ase d o n o r i n c l u d i n g the sam e
claim, (la )

NOTES

1. The procedure under the former Sec. 1 of this


Rule has been maint ained, but with the clarification t hat
when the notice of dismissal is filed by the plaintiff, the
court shall issue the corresponding order confirming the
dismissal. This set t les t he former m i su nd er st a nd ing
regarding the date when such dismissal became execu•
tory since t here was t hen no such provision for a court
order which, being final in nat ur e, would requir e the
corresponding ent r y.
2. Under this section, dismissal is effected not by
motion but by mere notice of dismissal which is a mat t er
of right before the defendant has answered or moved
for a su mmar y judg me nt . Such dismis sal is wit hout
prejudice, except: (a) where the notice of dismissal so
provides, (b) where the plaintiff has previously dismissed
the same case in a court of competent jurisdict ion, and
(c) even where t he notice of dismissal does not provide
t hat it is with prejudice but it is premised on the fact of

299

298
RUL E 17 REMEDIA L LA W C O M P E N D I U M SE C . 2

pa yme n t by t he defendant of t he claim involved (see


Serrano vs. Cabrera, 93 Phil. 774).
The t wo-dismissal rule requires, however, t hat both
dismissals are grant ed by a court of compet ent jurisdic•
tion.
3. . To be more precise, however, wha t causes
the loss by a plaint iff of the r ight to effect dismissal of
the act ion by mere notice is not the filing of the
defendant ' s answer wit h the court but the service on t he
plaint iff of said answer or of a mot ion for summar y
judg ment . Where the plaint iff filed the notice of
dismissal of his act ion in the court after the filing of
defendant ' s answer but before service thereof, the
plaint iff's notice to t hat effect ipso facto bro ught about
the dismissal of the pending act ion wit hout need of any
order from the t rial court (Go vs. Cruz, et al., G.R. No.
58986, April 17, 1989).

4. This sect ion is also applicable to special proceed•


ings (Ventura vs. Ventura, 106 Phil. 1165 [Unrep.]). The
for mer port ion t hereof regar ding dismissal or compromise
of a class suit has been t ransferred to Sec. 2 of t his Rule
since the same are effected by mot ion, and not by mere
notice, to the court.

5. Wher e the first co mpla int for foreclo sure of a


chat t el mort gage for non-payment of certain inst allment s
due t h e r e U N D E R was dis missed wit h pr ejudice, a t the
i nst a nc e of the plaint iff UNDE R t hi s s ect io n, a no t he r
complaint lat er filed by him for non-payment of install•
me nt s s u bs e q u e n t to t hose invo lved in the first case
should not be dis missed on the ground of res judicata
since said second case involved different causes of action
(Filinvest Credit Corp. vs. Salas, et al, G.R. No. 63326,
July 31, 1984).

S ec . 2. Dismissal upon motion of plaintiff. —


E x c e p t a s p r o v i d e d i n t he p r e c e d i n g s e c t i o n , a

300
RULE 17 D I SM I SSA L O F AC T I O N S SEC . 2

co mp l ai n t shall not be d i sm i s s e d at the p l a i n t i f f s


i n st an c e save upo n ap p roval of the cou rt and upon
su c h t e rm s an d c o n d i t i o n s a s the Cou rt d e e m s
p rop er. If a c o u n t e rc l a i m ha s been p lead e d by a
d e f e n d a n t p ri o r t o the se rv i c e u po n hi m o f the
p l a i n t i f f s mot i o n for d i smi s sa l, the d i smi s sa l shall
be li mi ted to the comp lai n t . The d i smi ssa l shall be
wi t h ou t p rej u d i ce to the right of the d e fe n d a n t to
p ro s e c u t e hi s c o u n t e r c l a i m in a sep a ra t e act i o n
u n les s wi t h i n fifteen (16) days from n ot ice of the
mo t i o n h e m a n i f e s t s hi s p re f e re n c e t o hav e hi s
cou n t e rc l ai m reso lv e d in the same acti on. Un less
o t h e rw i s e sp eci fi ed in the ord er, a d ismi s sa l u nd er
this p a rag ra p h shall be wit h ou t p reju di ce. A class
suit shall not be d i sm i s s e d or comp ro mi sed wi t h ou t
the ap p rova l of the court. (2a)

NOTES

1. Prior to this amendatory Sec. 2, the rule was t hat


the plaint iff could not move for the dismissal of his com•
plaint if, before the service of his motion therefor upon
the defendant , the lat t er had filed a counterclaim which
could not remain pending for independent adjudicat ion
by the trial court, hence the defendant could object to the
dismissal of the action. Applying t hat provision, it was
held t hat after the defendant had answered, dismissal can
be effected only by order of the court on proper notice and
hear ing. Such dis missa l cannot be ordered over the
defendant 's objection if the counterclaim of the defendant
cannot remain pending for independent adjudication, t hat
is, a compulsory co unt er claim (see Ynotorio vs. Lira, L-
16677, Nov. 27, 1964; Lim Tanhu, et al. vs. Ramolete, et
al, L-40098, Aug. 29, 1975). The dismissal under this rule
was also wit hout prejudice, except (a) when other• wise
st ated in the motion to dismiss, or (b) when st at ed to be
with prejudice in the order of the court (see Vergara, et
al. vs. Ocumen, et al., G.R. No. 53971, June 19, 1982).

301
RUL E 17 R E M E D I A L LA W C O M P E N D I U M SE C . 2

A furt her qualifying doctrine was to the effect t hat


the rule t hat a complaint may not be dismissed if t he
count erclaim cannot be independent ly adjudicat ed does
not apply to, and will not inure to the benefit of, a plaint iff
who deliber at ely pr event s or delays t he prosecut ion of his
own complaint. Especially is this t rue where the complaint
wa s d is m is s e d as a co nseque nce of p la int i ff' s be ing non-
suit ed at the pr e-t r ial as he has t her eby virt ually
abando ned his claims in his complaint (Sta. Maria vs.
CA, et al, L-30602, June 30, 1972).
Alt hough the aforesaid doct rines must now yield to
the a me nd me nt s in Sec. 2 , as her eunde r explained, the
r at io na le in the Sta. Maria case t hat a plaint iff who delays
or pr event s the prosecut ion of his own complaint s ho u l d
no t be ne f i t t h e r e f r o m , a s b y r a i s i n g an y object ion to
the appr o pr iat e disposit io n of de fe nda nt ' s count erclaim,
is still a sound rule.

2. Under t his revised sect ion, where the plaintiff


mo ves for the d is m is s a l of his co mp la i n t to which a
co unt er cla im has been int erposed, the dis missal shall be
limit ed to the complaint . Such dis missal shall be wit hout
prejudice to the r ight of the defendant to eit her prosecut e
his co unt er claim in a sep ar at e action or to have the same
resolved in the same act ion. Should he opt for the first
a lt er nat ive, the court should render t he corr espo nding
order gr ant ing and reser ving his right to prosecut e his
claim in a separ at e complaint . Should he choose to have
his count er cla im disposed of in the same act ion wherein
the co mp la int had been dis missed, he mus t ma nifest
such preference to t he t rial court wit hin 15 days from
not ice to him of p la i nt i f f s mot io n to dismiss. These
alt er nat ive remedies of the defendant are available to him
regardless of w het her his count erclaim is compulsory or
per miss ive. A similar a lt er nat ive pro cedur e, wit h the
same under lying reason therefor, is adopted in Sec. 6, Rule
16 an d Sec. 3 of t hi s Rule, wher e i n the co mp la int is

302
RUL E 17 DISM I SSA L O F ACTION S SEC . 3

dismissed on motion of the defendant or, in the lat t er


instance, also by the court motu proprio.
3. Secs. 1 and 2 of this Rule refer to the dismissal of
the entire case at the instance of the plaintiff, provided
that, under Sec. 1, t here has been no service of an answer
of a motion for summar y judgment ; and, under Sec. 2, the
defendant has not filed a count erclaim and the court
deems t he dismissal proper. Absent such cont ingent
considerat ions, the plaint iff has the virt ual freedom to
desist from furt her prosecut ing any defendant by causing
the dismissal of the complaint.
This i s to be d is t i ng u i s he d from the s it u at io n
cont emplat ed in Sec. 11, Rule 3 which allows part ies to be
dropped or added by order of the court, on motion or motu
proprio at any stage of the action and on such t erms as
are just. This refers to the maintenance of the case against
all part ies, except t hat one or more defendant s may be
excluded. It does not, however, comprehend whimsical
or ir rat io nal dropping of part ies but cont emplat es the
sit uat ion where t here has been an erroneous inclusion
or misjoinder of part ies. It presupposes that the original
inclusion of a defendant was made in the honest conviction
t hat i t wa s pro pe r bu t the s u bs e q u e n t dro ppin g i s
request ed because it has t urned out to be incorrect. It
does not mean t hat a plaint iff is free to join or implead
anybo d y as a d e f e nd a n t in a c o mp l a i n t only to
unceremoniously drop him later at the plaint iffs pleasure;
hence, the r equir eme nt t hat the dropping be "on such
t erms as are just" - just to all the other part ies (Lim
Tanhu, et al. vs. Ramolete, et al, supra).

Sec . 3. Dismissal due to fault of plaintiff. — If,


for no ju st i fiab le cau se, the plaintiff fails to appear
on the date of the p resen t at i on of his evi d en ce in
chief on the comp lai n t , or to p rosecu t e his action
for an u n re as on ab l e len gth of time, or to comp ly
wit h t h es e Ru le s o r an y ord er o f the cou rt, the

303
RUL E 17 REMEDIA L LA W C O M P E N D I U M SEC. 3

c o m p l a i n t ma y b e d i s m i s s e d u p o n m o t i o n o f the
d e f e n d a n t o r upo n the court' s ow n mot i on , wi t h ou t
p rej u d i c e to the ri ght of the d e f e n d a n t to p ro s e c u t e
hi s c o u n t e r c l a i m i n the sam e o r i n a s e p a r a t e
act i on . This d i s mi s sa l shall hav e the effect of an
a d j u d i c a t i o n u p o n the m e ri t s , u n l e s s o t h e r w i s e
d ecla re d by the court. (3a)

NO TES

1. Two impo rt ant changes have been int roduced by


t his sect ion. The dismissal of the case for failure of the
plaint iff to appear at the t rial, to be valid, now requires
t hat (1) his no n- appear ance is wit hout just ifiable cause,
and (2) such prejudicious absence is limited to the dat e
or dat es when the pr esent at io n of his evidence in chief on
the complaint was scheduled or expected. The provision
in the former sect ion referr ing to pla i n t if f s failure to
appear "at the t ime of the t rial" could result in unfair if
not absurd result s, consider ing the lengt h of the period
of the t r ial and the different st ages t hereof wher ein the
presence of the defendant and the ot her part ies are not
even r e qu ir e d . Since the p la i nt i f f s pr ese nc e i s now
requir ed only dur ing t he pr esent at io n of his evidence in
chief, his absence during the pr esent at io n of the evidence
of t he defe nd a nt or t he ot he r part ie s , or even at t he
r ebut t al or subsequent st ages of the trial, is not a ground
for dismissal.

2 . The seco n d s u b s t a n t i a l a m e n d m e n t t o t hi s
section is wit h respect to the disposit ion of the defendant ' s
co unt er cla im in the event t he p la i nt i f f s co mpla int i s
dismissed. As alread y observed, he is here gr ant ed the
choice to prosecut e t hat count erclaim in eit her the same
or a separ at e action, just like the grant of t hat remedy in
Sec. 6 of Rule 16. It may be noted t hat in the pr esent
i nst a nce , as well as UNDE R t he a fo r e st at e d Sec. 6 of
Rule 16, the defendant is not required to manifest his

304
RUL E 17 DISM I SSA L O F AC T I O N S SEC . 3

preference wit hin a 15-day period, as in Sec. 2 of this Rule


The reason is t hat the motions to dismiss cont emplat ed
in Sec. 6, Rule 16 and in t his sect ion are filed by the
defendant who perforce has already deliberat ed upon the
course of action he int ends to take on his counterclaim
and which he may even manifest right in his motion to
dismiss the complaint. The dismissal in Sec. 2 of this Rule
is at the instance of the plaintiff, hence the defendant is
grant ed the time and also the duty to t hus manifest his
preference within 15 days from notice, after an opportunit y
to study the sit uat ion.

3. With the aforestat ed amendment s in Secs. 2 and


3 la yin g down specific r u le s on the d is po s it io n of
co unt er cla i ms involved in the dis missed act ions, the
co nt ro ver sia l doctrine in BA Finance Corporation vs.
Co, et al. (G.R. No. 105751, Jun e 30, 1993) has been
abandoned, toget her with the apparent confusion on the
proper applicat ion of said Secs. 2 and 3. Said sections
were dist inguished and discussed in the aut hor' s separate
opinion in t hat case, even before they were clarified by
the present amendment s, as follows:
"Turning back to Rule 17, it is readily apparent
t hat Sect ions 2 and 3 t hereo f envisage different
factual and adject ive sit uat io ns. The dismissal of
the complaint under Section 2 is at the instance of
plaintiff, for what ever reason he is minded to move
for such dismissal, and, as a matter of procedure, is
wit hout prejudice unless otherwise stated in the order
of the court or, for t hat matt er, in plaint iffs motion
to dismiss his own complaint. By reason thereof, to
curb any dubious or frivolous strategy of plaintiff for
his be ne fit or to o bviat e po ssible pre jud ice to
defendant, the former may not dismiss his complaint
over the defendant ' s object ion if the la tt er has a
compulsory count er cla im since said count ercla im
would necessar ily be divested of juridical basis and
defendant would be deprived of possible recovery

305
RUL E 1 7 R E M E D I A L LA W C O M P E N D I U M SE C . 3

t hereon in t hat same judicial proceeding.


"Section 3, on the ot her hand, co nt emplat es a
dismissal not procured by plaintiff, albeit just ified by
causes imput able to him and which, in the pr esent
case, was pet it ioner's failure to appear at the pre-t rial.
This sit uat ion is also covered by Section 3, as extended
by jud ic ia l i nt e r p r e t a t io n , an d i s o r der e d upo n
mot ion of defendant or motu proprio by the court.
Here, the issue of whet her defendant has a pending
co unt er cla i m, per miss ive or compulsory, is not of
det er minat ive significance. The dismissal of plaint iffs
complaint is evident ly a confir mat ion of t he failure of
evidence to prove his cause of act ion out lined t herein,
hence the d is missa l is considered, as a matter of
evidence, an adjudicat ion on the mer it s. This does
not, however, mean t hat t here is likewise such ab•
sence of evidence to prove defendant ' s count er cla im
alt hough the same ar ises out of the subje ct - mat t er of
the complaint which was merely t er minat ed for lack
of proof. To hold o t he r w is e would not only work
i n j u s t ic e to d e f e nd a n t bu t woul d be r e a d i n g a
fu r t he r pr o vis io n int o S ect io n 3 an d w r e st i n g a
mea ning t herefrom alt ho ugh neit her exist s even by
mere implicat io n. Thus under st ood, t he complaint
can accordingly be dismissed, but relief can never•
t heless be gr ant ed as a mat t e r of course to defendant
on his count erclaim as alleged and proved, wit h or
wit hout any reser vat ion t herefor on his part , unless
from his conduct, express or implied, he has virt ually
consent ed to the co nco mit ant dismissal of his coun•
terclaim."

4 . I t ha s bee n held t hat the c ir c u m s t a nc e s set


out in t his sect ion are the only inst ances wherein t he court
may dismiss a case on its own mot ion (Malig vs. Bush, L-
22761, May 31, 1969). Nevert heless, it should also be recalled
t hat if t he court finds t hat i t has no jur is dict ion

306
RUL E 17 D I SM I SSA L O F ACTION S SE C . 3

over the subject -mat t er of the suit, t hat there is anot her
action pending bet ween the same part ies for the same
cause, or t hat the action is barred by a prior judgment or
by st at ut e of limit at ions, the court shall dismiss the case
sua sponte (Sec. 1, Rule 9).

5. Unless ot herwise provided in the order of the


court, a dismissal under this section is wit h prejudice.
Thus, when the dismissal does not contain any condit ion
at all, it has the effect of an adjudicat ion on the mer it s as
it is understood to be with prejudice (Guanzon vs. Mapa, L-
19249, Feb. 28, 1963; cf. Insular Veneer, Inc. vs. Plan, L-40155,
Sept. 10, 1976).

6. Failure to comply wit h a court order is ground for


d is m i s s a l of the cas e (Aranico-Robino vs. Aquino, L-
46641, Oct. 28, 1977), such as where the plaint iff failed
to amend his pleading as ordered by the court (Dizon vs.
Garcia, 110 Phil. 186), unless the order is null and void as
where, upon t he deat h of the defendant , the court
ordered the plaint iff to amend his complaint contrary to
Sec. 17 (now, Sec. 16), Rule 3 which directs t hat in t hat
case the heirs of the defendant be merely subst it ut ed in
lieu of the deceased (Gojo vs. Golaya, L-26768, Oct. 30,
1970). Also, the dismissal of the case for failure of
plaint iffs counsel to manifest whet her he was availing of
or dispensing with modes of discovery, as required by a
clerk in the office of the judge, is null and void as no such
notice is aut horized by the Rules (Koh vs. IAC, et al., G.R.
No. 71388, Sept. 23, 1986).
7. Unjust ifiable inaction on the part of plaintiff to
have the case set for t rial is ground for dismissal for
fa ilur e to p r o s e c ut e (Ventura vs. Bayan, L-12960,
Jan. 31, 1962; Insurance Company of North America vs.
Republic, L-26794, Nov. 15, 1967). The "unreasonable
length of time" in failure to prosecute is addressed to the
sound discret ion of the trial court (Olilang vs. Nocon, et
al., L-31072, July 22, 1971). These rules apply to

307
RUL E 17 R E M E D I A L LA W C O M P E N D I U M SE C . 3

p r e - t r ia l s an d ap pe a l s t o the for mer Co urt of F ir s t


Inst ance (Racimo vs. Diho, L-27804, Feb. 27, 1976) and
the case may be dis mis s ed for appe l la nt ' s failure to
prosecute his appeal for an unr easo nable lengt h of t ime
(Republic vs. Guarin, et al, L-26367, Jan. 31, 1978). In
a case appealed to the t hen Court of Fir st Inst ance, t he
appellant (whet her plaint iff or defendant) st ands in t he
same posit ion as t he plaint iff in a case originally filed in
said court, hence t he provisions of Sec. 3, Rule 17 also
apply to said appellant (Capitol Rural Bank of Quezon
City, Inc. vs. Meridian Assurance Corp., G.R. No. 54416,
Oct. 17, 1980).

8. . It is p la int iffs failure to appear at the t rial,


and no t t he a b s e n c e o f hi s l a w ye r , whic h
w a r r a n t s dis m is sa l (Dayo, et al. vs. Dayo, et al, 95
Phil. 703; Marahay vs. Melicor, etc., et al, L-44980, Feb.
6, 1990).
9. A mot ion for the reco nsiderat io n of an order
dismissing the case for failure to prosecut e need not be
acco mp a nied by affidavit s of mer it s (Gapoy vs. Adil,
et al, L-46182, Feb. 28, 1978).

10. D i s m i s s a l U N D E R Secs. 1 , 2 an d 3 of t hi s
Rule, unless ot herwise ordered, is an adjudicat ion on the
mer it s except, of course, dismissal for lack of jur isdict io n
which is always w it hout prejudice (Rivera vs. Luciano, L-
20944, Aug. 14, 1965, and cases t her ein cited).

11. . The principle t hat the dismissal of the


complaint carr ies wit h it the dismissal of the count erclaim
applies to inst ances where the court has no jur isdict ion
over the main case (Metals Engineering Resources Corp.
vs. CA, et al,
G.R. No. 95631, Oct. 28, 1991). Ot her wise, a count er•
claim may not be dismissed if defendant objects, unless it
can be independent ly considered by the court. Where no
objection was made, the dismissal of the count erclaim was
valid. At any rat e, if t he dismissal of such count er cla im is

308
wit hout prejudice, it may be refiled as a separ at e action

307
RUL E 17 DISM I SSA L O F AC T I O N S SEC . 4

under Sec. 2, Rule 17 (Fletcher Challenge Petroleum Phil.,


Ltd., et al. vs. CA, et al., G.R. No. 123292, April 20, 1998).
12. Where counsel for the plaint iff had adduced
evide nc e for his c l ie nt , his fa i lur e to appe a r at a
subsequent hear ing cannot be considered as failure to
prosecute but only a waiver of the right to cross-examine
the w it nes se s for t he defendant and to object to the
ad mis s ib i lit y of evidence for t he lat t e r (Jalover vs.
Ytoriaga, L-35989, Oct. 28, 1977).

13. The provisio ns of Sec. 3 of t his Rule do not


apply to criminal cases (People vs. Bellosillo, L-18512,
Dec. 27, 1963).
14. For a crit ique of the controversial ant ecedent s of
Secs. 2 and 3 of the Rule before their a mendment in 1997
and the current percept ions consequent to such amend•
ment s, see Tinga vs. Heirs of German Santiago, etc. (G.R.
No. 170354, June 30, 2006).

Sec. 4. Dismissal of counterclaim, cross-claim,


or third-party complaint. — The p r o v i s i o n s of t hi s
Rul e s ha l l a pp l y t o t he d is m i s s a l o f an y c o u nt e r •
c la i m , c r o s s - c l a i m , o r t h i r d - p a r t y c o m p l a i n t . A
vo l u nt a r y d is m i s s a l b y t he c l a i m a n t b y no t ic e a s i n
s e c t i o n 1 o f t h i s R u l e , s ha l l b e m a d e be fo r e a
r e s p o n s i v e p l e a d i n g o r a m o t i o n for s u m m a r y
j u d g m e n t i s ser ve d or, i f t he r e i s no ne , befo r e the
i n t r o d u c t i o n o f e v i d e nc e a t the t r ia l o r he a r i ng . (4a)

310
RULE 18

PRE-TRIAL

S e c t i o n 1. When conducted. — Aft e r the las t


p le ad i n g ha s bee n se rve d and filed, i t sh all be the
dut y of the p lai n t i ff to p romp t l y mov e ex parte that
the cas e be set for pre-tri al. (5a, R20)

NO TES

1. . To o bviat e t he conflict ing views and


decis io ns under the former Rule, Sec. 1 now imposes upon
the plain• tiff t he dut y to prompt ly move ex parte t hat the
case be set for pre-t ria l, and t his he must do upon the
service and filing of the last pleading required in the case
by t he Rules or, in appro pr iat e cir cumst ances, by the court
itself. This clarifies an d chang es t he pro cedur e
pr escr ibed in the former Sec. 5 of Rule 20 which
imposed t hat dut y on the clerk of court "upon the
submissio n" of the last pleading. The t r ansfer of
responsibilit y to the plaint iff himself, as has been
followed in ot her provisions of the revised Rules, is based
on the policy t hat whosoever is the proponent of the
par t icu lar st age of the proceeding should himself ini•
t iat e t he co rr espo nding st eps to have judicial act ion t aken
t her eo n since he is pr esumed to be the one int er est ed in
the speedy disposit ion thereof.

2. . Pre-t ria l under the former Rules was required


only in Co urt s of F ir s t I nst a nc e (now, the Reg io na l
Tr ia l Courts) and not in inferior courts, but the lat t er
could con• duct pre-t rial if t hey so desired. However,
Par. 9 of the I nt er im Rules requir ed the inferior court s
to observe t he same pro cedur e as t hat followed in the
Regio nal Trial Court s and Rule 5 now provides for t hat
uniform proce• dure, albeit wit h qualificat ions.

309
RUL E 18 PRE- TRI A L SEC . 2

3. The pre-trial and t rial on the mer it s of the case


must be held on separat e dates (Heirs of Jose Fuentes,
et al. vs. Macandog, etc., et al, L-45445, June 16, 1978).
4. A pre-t r ial cannot validly be held unt il the last
pleading has been filed, which last pleading may be the
plaint iffs reply (Pioneer Insurance & Surety Corp., et al.
vs. Hontanosas, et al, L-35951, Aug. 31, 1977), except
where the period to file the last pleading has lapsed. The
pre-t rial may be properly scheduled even if the plaintiff
had not yet filed his answer to the defendant 's compul•
sory count erclaim since no answer is required to be filed
t heret o (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983; see Koh vs. LAC, G.R. No. 71388, Sept. 23, 1986).

Sec. 2. Nature and purpose. — The pre- t ri a l is


man d at ory. The cou rt shall con si d er:
(a) The p ossi b i li t y of an ami cab le set t l e m en t or
of a su b m i s si o n to alt ernati ve mod es of d i sp ut e reso•
lu t ion ;
(b) The si mp li cat i on of the i ssu es;
(c) The n ece s si t y or d esi rabi li ty of a m e n d m e n t s
to the p lead i n gs;
(d) The p ossi b i li t y of ob t ain i n g sti pu lat ion s or
ad mi s si on s of facts and of d ocu m en t s to avoid un•
n ec e s sa r y proof;
(e) The li mi t at i on of the nu mb er of wi tn esse s;
( 0 The ad vi sab i lit y of a p reli mi nary referen ce
of i ssu e s to a commi ssi on e r;
(g) The p rop ri et y of ren d eri n g j u d gmen t on the
p lead i n gs, or su mmar y ju dgment, or of d i smi ssi n g
the act ion sh ou ld a valid ground therefor be found
to exist;
(h) The ad vi sabi li ty or n ecessi t y of su sp e n d i n g
the p ro ceed i n gs; and

312
RUL E 18 R E M E D I A L LA W C O M P E N D I U M SE C . 3

(i) Suc h oth e r mat t e r s as ma y aid in the p romp t


d i s p o si t i o n of the act i on, (la , R20 )

NOTES

1. The purposes of a pre-trial under the old Rule have


been reproduced wit h two subst ant ia l ame nd me nt s, viz.:
(a) the court shall consider submission to alt er nat ive modes
of disput e resolut ion including conciliation and mediat ion,
and not only ar bit r at io n; and (b) it shall also consider t he
advisa bilit y of ju d g m e n t on t he plead ings, s u m m a r y
judg ment or dismissal of t he action on the bases of the
proceedings at the pre-t r ial conference.

2. . Wit h r egar d to subm is s io n to ar b it r a t io n ,


see
R.A. 876 and Ar t s. 2028 to 2041 of the Civil Code on
co mpro mises and ar b it r at io ns . For r ecent legis lat io n
pro vid ing for a br o ader scope of a lt er n at iv e modes of
disput e resolut ion, see R.A. 9285 which inst it ut ionalized
the use of an a lt er nat ive disput e resolut ion syst em and
est ablished the Office for Alt er nat ive Disput e Resolut ion
(Appendix DD).

3. The findings of fact of a t rial court consequent to


a pr e-t r ial conference are findings which are based on
evidence and can accordingly suppo rt a decision or an
order (Libudan vs. Gil, L-21163, May 17, 1972).

Sec . 3. Notice of pre-trial. — The n o t i c e of p re -


t ri al shal l b e serve d o n cou n s e l , o r o n the p art y wh o
ha s n o cou n s e l . The c o u n s e l serv e d wi t h suc h n ot i c e i s
c h a rg e d wi t h the d ut y o f n ot i f yi n g the p art y
r e p r e s e n t e d by him. (n)

NOT E

1 . Under the former procedure, the S upr eme Court


held t hat a notice of pre-tr ial must be served on the part y
affected separat ely from his counsel (Heirs of Jose Fuentes,
311
RUL E 18 PRE- TRI A L SEC . 4

et al. vs. Macandog, etc., et al. supra), and the same may
be served direct ly to him or t hrough his counsel (Lim,
et al. vs. Animas, etc., et al., L-39094, April 18, 1975),
otherwise the proceedings will be null and void (Sagarino
vs. Pelayo, L-27927, June 20, 1977; Patalinjug vs. Peralta,
et al., L-43324, May 5, 1979). It was the duty of counsel
upon whom such notice is served to see to it t hat his client
receives such notice and att ends the pre-trial, otherwise
he will be liable for grave ad minist r at ive disciplinar y
action (Taroma, et al. vs. Sayo, et al., L-37296, Oct. 30,
1975).
The procedur e has been simplified in this revised
section in the sense t hat the notice of pre-trial shall be
served on counsel, and service shall be made on the part y
only if he has no counsel. However, the duty of counsel
served with such notice to duly notify his client thereof
remains subst ant ia lly the same.

Sec. 4. Appearance of parties. — It shall be the


duty of the p art i es and thei r coun se l to ap pear at
the p re-t ri al. The n on - ap p ea ra n c e of a party may
be e xc u se d on ly i f a valid cau s e is show n th erefor
or if a re p re se n t at i v e shall appear in his behalf fully
a u t h o ri z e d i n w ri t i n g t o en t e r into a n ami cab l e
s e t t l e m en t , t o submi t t o a lt e rn a t i v e mode s o f
d i sp u t e re so l u t i on , and to ent e r into st ip u lat i on s
or a d m i s s i o n s of facts and of d ocu men t s, (n)

NOTES

1. The specificit y int roduced by t his new sect ion


underscores the necessit y for the personal appearance of
the p ar t ie s at the pr e-t r ia l conference in view of the
purposes thereof. This provision is based on the doctrines
of the Supreme Court which held t hat the purpose of the
revised Rules is to compel the part ies to appear personally
before the court to reach, if possible, a compromise. Where

314
RUL E 18 REMEDIA L LA W C O M P E N D I U M SE C . 5

the counsel for the plaintiff assert ed t hat he had been given
aut hor it y by his client to compromise but the court was
not sat isfied t hat said aut ho r it y exist ed, t he court i s
aut hor ized to dismiss the case for no n- appear ance of the
plaint iff (Home Insurance Co. vs. U.S. Lines Co., et al., L-
25593, Nov. 15, 1967). A specia l a u t ho r it y for an a t t o r ne
y t o co mpr o m is e i s r e q u ir e d UNDE R Sec. 23 , Rule 138.
Under Art . 1878(c) of the Civil Code, a special power of
att orney is required (see Servicewide Specialists, Inc. vs.
Sheriff of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
However, it has also been held t hat the aut hor it y need not
be in wr it ing and may be est ablished by co mpet ent
evidence or subsequent ly ratified by the par t y
c o nc e r ne d (Lim Pin vs. Tan, et al., L-47740, July 20,
1982). If the par t y is a co r po r at io n , suc h aut ho r it y must
be made wit h an appropr iat e resolut ion of its board of
directors (Republic vs. Plan, et al., G.R. No. 56962, Aug.
21, 1982).

2. . I t must furt her be noted t hat the special


aut hor it y should confer on the part y' s r e pr ese nt at ive not
only the power to ent e r into a compromise, as i t was
under the for mer provisio n, but also to submit to
alt er nat ive modes of disput e set t lement , and to ent e r
into st ipulat io ns or a d m i s s io n s of fact s an d
d o c u m e nt s . Also, the mer e pr esent at io n of such
wr it t en aut hor it y is not sufficient, but mus t be
co mp le me nt ed by a showing of valid cause for the no n-
appear ance of the part y himself.

3. . Where nobody appear ed at the pre-t rial except


the counsel for the plaint iff but said counsel had no
special aut hor it y to r epr esent the plaintiff t herein, the
plaint iff may properly be declared no n-suit ed. The
plaint iff may be so declared non-suit ed and the case
dismissed wit hout motion by the defendant (Sec. 3, Rule
17).

Sec . 5. Effect of failure to appear. — The fa i l u r e of


313
t he p la i nt i f f t o a p p e a r w he n s o r e q u i r e d p u r s u a n t

316
RUL E 18 PRE-TRIA L SEC . 5

to the nex t p re c e d i n g sect i on shall be cau se for dis•


mi ssal of the acti on. The d i smi ssal shall be with
p rej udi ce, u n les s ot h e rwi s e ord ered by the court.
A si mi lar failu re on the part of the defen d an t shall
b e c a u s e t o a l l o w the p l a i n t i f f t o p r e s e n t hi s
evi d en c e ex parte and the court to rend er j u d gmen t
on the basis thereof. (2a, R20)

NOTES

1. This is a subst ant ial reproduct ion of Sec. 2 of the


former Rule 20 wit h the change t hat , inst ead of the
defendant being declared "as in default" by reason of his
no n- ap pe ar a nce, t his sect ion now spells out t hat the
procedure will be to allow the ex parte pr esent at io n of
plaint iffs evidence and the rendit ion of judgment on the
basis thereof. While actually the procedure remains the
same, t he pur po se is one of se ma nt ica l pro pr iet y or
terminological accuracy as there were criticisms on the use
of the word "default" in the former provision since t hat
t erm is ident ified wit h the failure to file a r equir ed
answer, not non-appearance in court.
2. The t rial court has discretion to declare a part y no n -
s u it e d (American Insurance Co. vs. Republic, L
25478, Oct. 23, 1967) and, unless otherwise provided, such
dismissal has the effect of an adjudication on the mer it s
(Geralde, et al. vs. Sabido, et al., L-35450, Aug. 19,
1982). Such exercise of discret ion will not be interfered wit h
by the appellate courts, absent a showing of grave abuse
thereof. Where, as in one case, both counsel and plaintiff
did not appear at the pre-trial, an order of non-suit was
proper (Arcuino, et al. vs. Aparis, et al., L-23424, Jan. 31,
1968).
3. Where the defendant is declared in default for his
failure to appear at the pre-trial, his remedy is to file a
motion for reconsiderat ion wit hout need for affidavits of
merits regarding the fraud, accident, mistake or excusable

315
RUL E 18 R E M E D I A L LA W C O M P E N D I U M SE C . 6

negligence (Lucero vs. Dacayo, L-23718, May 13, 1968),


obviously because t he defenses of the defendant are set
out in his answer. If denied with grave abuse of discretion,
c e r t io r a r i i s t he r e med y as such o rde r of defau lt i s
int er locut ory. The remedy of the plaint iff who is non•
suit ed, on the ot her hand, is to appeal from the order of
dismissal, the same being a final order. If has also been
held t hat sai d mo t io n of the p la int i f f nee d not be
a c c o mp a n i e d by a ff ida vit s of me r it s s ince the suf•
ficiency of the cause of act ion can be det er mined from
the allegat io ns in the complaint (Gapoy vs. Adil, et al., L-
46182, Feb. 28, 1978).

4. . Where the defendant was pr esent at the pre-


trial, the court has no aut ho r it y to t her ea ft er call a
second pre-t rial and declare defendant in default for his
absence t her e i n (Pioneer Insurance & Surety Corp., et
al. vs. Hontanosas, et al., supra; cf. Jaranilla, et al.
vs. Adil, et al., L-44884, Feb. 28, 1979). For t hat mat t er,
where a pre-t rial has alr eady been held, the fact t hat an
ame nded complaint was lat er filed, wit h leave of court,
does not necessit at e anot her pre-trial (Insurance Company
of North America vs. Republic, et al., L-26794, Nov. 15,
1967).

5. . The dis missa l of t he case by the court due


to no n- ap pe ar a nce of t he plaint iff and his counsel at
the pre-trial, but wit hout proper notice of said pre-t rial
served on them, is violat ive of due process and the dismissal
should be set aside (Loquias vs. Rodriguez, et al., L-
38388, July 31, 1975). Where pet it io ner ' s counsel was not
served wit h a separ at e notice of pr e-t r ial, alt ho ugh his
client acknowledged receipt of a copy t hereof in its behalf
and of said counsel, said service is insufficient and t he
order of default and the ex parte proceedings before the
commis• sioner are null and void (People's Realty Brokerage
Corp. vs. Lustre, et al., L-41495, Oct. 20, 1978). This
doctrine would st ill hold t ru e as i t does not conflict
wit h t he amended Sec. 3 of t his Rule.

318
RULE 18 PRE- TRI A L SECS. 6, 7

Sec. 6. Pre-trial brief. — The parties shall file with


the cou rt and serve on the ad verse party, in such
man n e r as shall i n su re th ei r recei pt th ereo f at least
t h ree (3) days before the date of the pre-trial, their
r e s p e c t i v e p re- t ri a l b ri ef s wh i c h sh al l c o n t a i n ,
amon g ot h ers:
(a) A s t a t e m e n t of th ei r w i l l i n g n e s s to ent e r
into ami cab l e s e t t l e m e n t or a lt e rn at i ve mod e s of
d i s p u t e re s o l u t i o n , i n d i c a t i n g the d esi re d t e rm s
thereof;
(b) A su m m a r y of ad mi t t ed facts and p ro p osed
st i p u lat i on of facts;
(c) The i ssu e s to be tried or resolved ;
(d) The d o c u m e n t s or exh i b i t s to be p rese n t ed ,
st at i n g the p u rp os e thereof;
(e) A m an i f e st at i o n of thei r h avi n g availed or
t hei r i n t e n t i o n t o avai l t h e m s e l v e s o f d i s c o v e r y
p ro ce d u re s or referral to com mi s si on e rs; and
(f) The n u mb e r and n ame s of the w i t n es s e s ,
and the s u b st a n c e of their re sp ect i ve t est i mon i es.
Fai lu re to file the pre-trial brief shall have the
same effect as fai lu re to ap pear at the pre-trial, (n)

NOTE

1. This section makes it the mandatory duty of the


part ies to seasonably file t heir pre-trial briefs under the
conditions and wit h the sanct ions provided t herein. The
case of Dimayacyac, et al. vs. CA, et al. (G.R. No. 50907,
Sept. 27, 1979) which excused the non-filing of the pre•
trial brief on the ground t hat the former Rule did not then
require the same is accordingly abrogated.

Sec. 7. Record of pre-trial. — The p roce ed i n gs in


the pre-trial shall be record ed . Upon the t ermi na -

317
RUL E 18 R E M E D I A L LA W C O M P E N D I U M SE C . 7

tion thereof, the Cou rt shall i ssu e a n ord e r wh i c h


shall reci t e i n d et ai l the mat t e r s t a ke n u p i n the
c o n f e re n c e , the act i o n t ake n t h ereo n , the amen d •
men t s al l o we d t o the p lea d i n g s , an d the a g r e e m e n t s
or a d m i s s i o n s mad e by the p art i e s as to an y of the
ma t t e r s con si d e re d . Sh ou l d the act io n p rocee d t o
trial, the ord er shall exp li ci t l y d efi n e an d li mit the
i ssu e s to be t ri ed. The con t en t s of the ord e r shall
con t ro l the s u b s e q u e n t cou rs e o f the act i on , u n les s
mod i fi e d before t rial to p rev en t man i fes t i nj u st i ce.
(5a, R20)

NOTES

1. . Thi s pr o vis io n on the p r o c e du r e in p r e -


t r ia l proceedings in civil cases is different from t hat
obt aining in cr iminal cases wherein, as provided in Sec.
2 of Rule 118, an agr eeme nt or admissio n of a part y in the
pre-t ria l conference shall be admissible against him only
if reduced to wr it ing and signed by him and his counsel.
However, the bind ing effect of the pre-t r ial order issued
under t his sect ion is subst ant ia l l y the same as a pre-
t rial order in cr imina l cases, as provided in Sec. 4 of said
Rule.

2. The a me nd me n t of a pre-tr ial order is addressed to


the sound d iscr et io n of the court (Gotico vs. Leyte Chinese
Chamber of Commerce, L-39379, April 30, 1985).

3. Where t he a mo unt of back r e nt a ls to be paid by


the defendant is st at ed in the pre-t r ial order in the nat ure
of a compromise agr ee me nt t hereon, said pre-t rial order
in t hat sense has the force of res judicata on t hat issue (M
& M Management Aids, Inc. vs. CA, et al., G.R. No.
53942, June 29, 1984).

4. A pr e-t r ial order is not mean t to be a detailed


catalogue of each and every issue t hat is to be or may be

320
RUL E 18 PRE- TRI A L SEC . 7

t ake n up dur ing the t rial. Issues t hat are impliedly


included t her ein by necessar y implicat ion are as much
int egral part s of the pre-t r ial order as those t hat are
expressly st ipulat ed (Velasco, et al. vs. Apostol, et al., L-
44588, May 9, 1989).
5. . In A.M. No. 03-1-09-SC, t he S upr e me
Court issued a Rule on Guidelines to be Observed by Trial
Court Judges and Clerks of Court in the Conduct of Pre-
trial and Use of Deposit io n-Disco ver y Measur e s,
effect ive August 16, 2004.

319
RULE 19

INTERVENTIO N

S ect i o n 1. Who may intervene. — A p erso n wh o


ha s a legal in t eres t in the matt er in li ti gati on, or in
the su cces s of ei t h e r of the p art i es, or an i n t eres t
aga i n s t both, or i s so sit u at e d as to be ad vers e l y
affect ed by a d i st ri b u t i o n or ot h e r d i s p o s i t i o n of
p rop e rt y in the cu st od y of the cou rt or of an officer
t h e re o f may , wit h leav e o f cou rt , b e a l l o w e d t o
i n t e rv en e in the act i on. The cou rt shall con si d e r
wh et h e r or not the i n t e rv en t i o n will u n d u l y delay
o r p r e j u d i c e the a d j u d i c a t i o n o f the ri g h t s o f
the ori gi n al p art i es, and w h et h e r or not the inter•
ven er' s ri ght s ma y be fully p rot e ct e d in a sep arat e
p ro ce ed i n g . (2[2], [b]a, R12)

NOTES

1. This right to int ervene is not an absolute right.


The procedure to secure the r ight to int ervene is fixed by
the st at ut e or rule, and int er vent io n can be secured only
in accordance wit h the t er ms of the applicable provision.
U N D E R ou r rul e o n i n t e r v e n t i o n , the a l lo w a nc e o r
disallowance of a motion to int ervene is addressed to the
sound discret ion of the court (Big Country Ranch Corp.
vs. CA, et al., G.R. No. 102927, Oct. 12, 1993).

2. I nt er vent io n is not int ended to change the nat ur e


and char act er of the action itself (Garcia, etc., et al. vs.
David, et al., 67 Phil. 279). In general, an independent
controversy cannot be injected into a suit by int er vent io n
(67A C.J.S. 805), hence such int er vent io n will not be
allowed where it would enlarge the issues in the act ion
and expa n d the scope of the r e med ie s (Big Country
Ranch Corp. vs. CA, et al., supra).

320
RUL E 19 INTER VENTIO N SEC . 1

3. Int ervent ion is dist inguished from int erpleader


(Rule 62) as follows:
a. Int ervent ion is an ancillary action, while inter•
pleader is an original action;
b. I n t e r v e n t i o n i s pr o p e r in an y of the four
s it uat io ns ment io ned in t his Rule, while int er pleader
pr esuppo ses t hat the plaint iff has no int er est in the
subject - mat t er of the action or has an int erest t herein
which, in whole or in part, is not disputed by the other
part ies to the action; and
c. In a complaint in int ervent ion, the defendant s
are already original part ies to the pending suit, while in
int erpleader the defendant s are being sued precisely to
implead t hem.

4. . An i n t e r e s t i n g qu est io n i s the effect


upo n a co mp la i nt - i n- i nt e r ve nt io n by the dis missa l
of the pr incipal act ion wherein such int ervent ion was
sought. The confusion her e in seems to have ar isen
from the decisions of the S upr eme Court in Barangay
Matictic, etc. vs. Elbinias, etc., et al. (L-48769, Feb. 27,
1987) and Metropolitan Bank and Trust Co. vs.
Presiding Judge, etc., et al. (G.R. No. 89909, Sept. 21 ,
1990). While in Matictic it was held t hat the dismissal
of the main case barred further action on the
int ervent ion, in Metropoli• tan t he co mp la int - in -
i nt er ve nt io n sur vived and was allowed to proceed
despit e the dismissal of the main action. The two cases
actually rest on different facts and the see ming ly opposing
decisio ns t her e i n are easily reconcilable.
In Matictic, the main action, an expropriation case,
was filed by t he Munic ipa lit y of Nor zagaray against
private respo ndent s who were charging and collecting toll
fees on feeder roads in Barangay Mat ictic. Later, the
munic ipal mayor evinced his desire to wit hdr aw the
expropriat ion case, whereupon pet it ioner barangay filed
a motion for int ervent ion, contending t hat the result of

321
RUL E 19 REMEDIA L LAW COMPENDIU M SE C . 1

the expropriat ion case would affect its social and economic
development . Without taking action on the motion for
intervention, r e s p o nd e n t t r ia l Co urt dis m i s s e d the
expropr iat io n case, wit hout prejudice, on the singular
reaso n t hat the same was filed wit ho ut the requis it e
prior President ial approval. On cert iorari, the Supreme
Court ruled t hat the barangay, which is a part of but a
different po lit ical e nt it y, cannot quest io n t he or der
dismissing the expropriat ion case. Since said order had
achieved finality, the d is m i s s a l of the mot io n for
int er vent io n was unavo idable as the main action, having
ceased to exist, t here was no pending proceeding wherein
the int er vent ion may be based. Besides, its int erest s may
be protected in a separate case which it may prevail upon
the municipalit y to refile or, if the int ervenor has the
requisite aut horit y, it can file the action for expropriat io n
itself.
In Metropolitan, pet it ioner brought a replevin suit
for r eco ver y of a ir co nd it io n in g unit s , inst a l le d in a
building acquir ed by pr ivat e r espo ndent s, which were
obt ained from Raycor Air Control S yst em, Inc. on an
ar r ange me nt financed by loans obtained from pet it ioner.
Said aircondit ioning corporat ion was allowed by the trial
court to intervene and, after its complaint-in-intervention
was admitted and the answer s t heret o were filed, the case
was set for trial. Prior t her et o, pet it ioner bank and the
building owners ent er ed into a compromise agr eement
and, on t heir joint motion, the complaint was dismissed
wit h prejudice. However, on motion of int er venor, said
order was reconsidered and set aside. Thereaft er, the trial
court allowed t he filing of an a me nd e d co mpla int - in-
int er vent io n and pet it ioner went to the Court of Appeals
on cert iorari to challenge t he corresponding orders of the
lower court which, ho wever, wer e s u s t a i ne d by the
Court of Appeals.

The Supreme Court, on appeal, rejected pet it io ner ' s


co mp la in t aga i ns t allo wing the i nt e r ve nt io n sui t t o

322
RUL E 19 INTER VENTIO N SEC . 1

proceed despite the dismissal of the main action. In t rut h,


there was no final dismissal of the main case and its
r e i n s t a t e m e n t was pro per . The jo int mot ion of t he
plaint iff and defendant s t herein to dismiss the case only
affected t heir respect ive claims inter se but cannot affect
the r ight s of the int er venor. When an int ervenor has
become a party to a suit, the trial court cannot dismiss the
int er vent io n suit on the basis of an agreement between
the original part ies to the action unless the int ervenor is
a part y in such agreement .
Having been per mit t ed to become a part y to the
action, the int ervenor is ent it led to have the issues raised
between him and the original part ies tried and determined.
The plaint iff has no absolute right to put the int ervenor
out of court by the dismissal of the action, nor do the
original part ies to the suit have the power to waive or
otherwise annul the subst ant ial r ight s of said int ervenor.
When an int ervening pet it ion has been filed, a plaintiff
may not dismiss the act ion in any respect to the prejudice
of the int er venor.
Since the complaint -in- int ervent ion was filed before
plaintiff's action had been expressly dismissed, the
int er vener ' s complaint was not subject to dismissal on the
ground t hat no action was pending, because dismissal of
plaint iffs action did not affect the right s of the int ervenor
or effect the dismissal of int ervener's complaint. Moreover,
to r equir e pr ivat e r es po nd e n t to refile ano t he r case
will r esu l t in u nn e c e s s a r y delay and expe nse s and
ent ail mult iplicit y of suit s. This would, defeat the very
pur po s e of i nt e r v e nt io n whic h i s to d et er m i ne all
conflicting claims on the mat t er in lit igation and settle
in one act io n an d by a single jud g me n t t he whole
controversy among t he persons involved.

5. While, as a rule, int ervent ion is optional (Cruz-


cosa, et al. vs. Concepcion, et al., 101 Phil. 146)
and whet her the failure to intervene may be deemed as

323
RUL E 19 R E M E D I A L L AW COMPENDIU M SE C . 1

waiver or estoppel depends on each case (Liguez vs. CA,


et al., 102 Phil. 577), it is believed t hat wher e the
i n t e r v e ne r ' s r ig ht s ar e i nt e r wo ve n i n the p e nd i n g
case and he had due notice of the proceedings, he will
t her eaft er be est opped from quest io ning the decision
rendered t herein t hrough anot her action.
6. An improper denial of a motion for int ervent ion
is correct ible by appeal (Ortiz vs. Trent, 13 Phil. 130;
Hospicio de San Jose, et al. vs. Piccio, et al., 99 Phil. 1039
fUnrep.J), bu t if t her e is grave abus e of d is cr et io n,
ma nda mu s will lie, where t here is no other plain, speedy
an d a d e q u a t e r emed y (Dizon vs. Romero, L-26252,
Dec. 24, 1968; Macias, et al. vs. Cruz, et al., L-28947,
Jan. 17, 1973, jo int ly decid ing t her e i n L 29235 and L-
30935). On the other hand, an improper gr ant ing of a motion
for int ervent ion may be controlled by cert iorari and
pro hibit io n. When the r ight s of the pa rt y seeking to
int ervene will not be prejudiced by the judgment in the
mai n case an d can be fully pr o t ect e d in a s e p a r a t e
proceeding, the court may deny t he int er vent io n sought
(Pflieder vs. De Britanica, L-19077, Oct. 20, 1964).

7. For an enumerat ion of cases wherein int ervent ion


was held to be proper, see Batama Farmer's Cooperative
Marketing Association, et al. vs. Rosal, et al. (L-30526,
Nov. 29, 1971).

8. . To warr an t int er vent io n, it must be shown


t hat the mo vant has legal int erest in the mat t e r in
lit igat ion and considerat ion must be given as to whet her
or not the adjudicat ion of the right s of the original
part ies may be delayed or prejudiced, while those of the
int er venor may be protected in a separat e proceeding.
Both r equir eme nt s must concur.
The int erest which ent it les a person to intervene in a
suit must be on the mat t er in lit igat ion and of such direct
and immediat e charact er t hat the int er venor will eit her

324
RUL E 19 INTER VENTIO N SE C . 2

gain or lose by the direct legal operat ion and effect of the
judgment (6318 v. Nocom, G.R. No. 175989, Feb. 4, 2008).
The words "an int erest in the subject" mean a direct inter•
est in the cause of action as pleaded and which would put
the int ervenor in a legal posit ion to lit igate a fact alleged
in t he complaint , wit ho ut the est ablis h me nt of which
plaintiff could not recover (Magsay say-Labrador, et al. vs.
CA, et al., G.R. No. 58168, Dec. 19, 1989).

Sec. 2. Time to intervene. — The m o t i o n to


i n t erven e may be filed at any time before ren d i t i on
of j u d g m e n t by the t ri al cou rt . A cop y of the
p l e a d i n g - i n - i n t e rv e n t i o n shall be at tach e d to the
mot ion and served on the ori gin al part i es, (n)

NOTES

1. The former rule as to when int er vent io n may


be allowed was expressed in Sec. 2, Rule 12 as "before
or dur ing a t r ial, " and t his ambiguit y also gave rise
to indecisive doctrines. Thus, incept ively it was held
t hat a motion for leave to intervene may be filed "before
or dur ing a t rial" even on t he day when the case is
being submit t ed for decision (Bool, et al. vs. Mendoza,
et al, 92 Phil. 892), as long as it will not unduly delay
the disposit ion of the case. The term "trial" was used in its
rest rict ed sense, i.e., the period for the int roduct ion of
evidence by bot h p a r t ie s . Hence, i f the mot ion for
int er vent io n was filed after the case had already been
submit t ed for decision, the denial t hereof was proper
(Vigan Electric Light Co., Inc. vs. Arciaga, L-29207
and L-29222, July 31, 1974). However, it was lat er
held t hat int er ve nt io n may be allowed at any t ime
before the rendit ion of final judgment (Lichauco vs. CA,
et al, L-23842, Mar. 13. 1975). Furt her, in the excep•
tional case of Director of Lands vs. CA, et al. (L-45163,
Sept. 25, 1979), the Supreme Court permitted interven•
tion in a case pending before it on appeal in order to avoid

325
RUL E 19 R E M E D I A L LA W C O M P E N D I U M SECS . 3 4

injustice and in considerat ion of the number of part ies


who may be affected by the disput e involving overlap•
ping of numerous land t it les.
2 . The u n c e r t a i n t y i n t hes e r u l i ng s ha s bee n
eliminat ed by the pr esent Sec. 2 of t his amended Rule
which per mit s t he filing of the motion to int ervene at any
time before the rendition of the judgment in the case, in
line wit h the doctrine in Lichauco above cit ed. The
just ificat ion advanced for t his is t hat before judgment is
rendered, the court, for good cause shown, may st ill allow
the int roduct ion of addit ional evidence and t hat is still
wit hin a liberal int er pr et at io n of the period for t rial.
Also, since no jud g me n t ha s yet been r e nd e r e d , t he
mat t e r subject of the int er vent io n may st ill be readily
resolved and int egrat ed in the judgme nt disposing of all
claims in t he case, and would not r equ ir e an overall
r eassessment of said claims as would be the case if the
judg ment had already been render ed (see also Looyuko,
et al. vs. CA, et al, G.R. No. 102696, July 12, 2001).

Sec. 3. Pleadings-in-intervention. — The i n t erve•


no r sh al l file a c o m p l a i n t - i n - i n t e r v e n t i o n i f he
as s e rt s a clai m agai n s t ei t h e r or all of the ori gi n a l
p art i es , or an a n s w e r - i n - i n t e rv e n t i o n i f he un i t e s
wit h the d e f e n d i n g party in re si st i n g a clai m agai n s t
the latter. (2 [c]a, R12 )

Sec. 4. Answer to complaint-in-intervention. —


The a n s w e r t o the c o m p l a i n t - i n - i n t e r v e n t i o n
shall be filed wi t h i n fifteen (15) day s from n ot ice
of the ord er ad m i t t i n g the same , u n l es s a d i fferen t
period i s fixed by the court. (2 [d]a, R12 )

NOTES

1. Where the int ervenor unit es wit h the defendant ,


he int er ve nes by filing an answer - in- int er ve nt io n. If

326
RUL E 19 INTER VENTIO N S E C S . 3- 4

he unit es wit h t he plaintiff, he may file a complaint-in-


int er vent io n against the defendant . If he does not ally
himse lf wit h e it he r par t y he may file a co mp la int - in-
int ervent ion against both.

2. Sec. 4 of t his Rule, as amended, now requires an


answer to the complaint -in- int ervent ion wit hin 15 days
from notice of the order admit t ing the same, unless a
different period is fixed by t he court. This changes the
procedure under the former Rule wherein it was optional
to file an answer to the complaint -in- int ervent ion, and
also set s aside t he doctrine in Luna vs. Abaya, et al.
(86 Phil. 472) which held t hat t here would be no default
since under the t hen exist ing rule the filing of the answer
was per missive. This change of procedure does not, of
course, affect the rule enunc iat ed in Froilan vs. Pan
Oriental Shipping Co. (95 Phil. 905) t hat if an answer
is valid ly filed to the co mp la int - in - int er ve nt io n, t he
answering part y may assert a counterclaim therein against
the int er venor.

327
RULE 20

CALENDAR OF CASES

S e c t i o n 1. Calendar of cases. — The cle r k of


cou rt, UNDER the di rect s u p e rv i s i o n o f the ju d ge ,
shall kee p a calen d a r of case s for pre-t rial, t h os e
w h o s e t ri al s wer e ad j ou rn e d o r p o s t p o n e d , an d
t hos e wit h mot i on s to set for h ea ri n g. P re f e ren c e
shall be gi ve n to habeas corpus cases, elect i o n cases,
sp eci al civi l act i on s, and th os e so req u i red by law.
(la , R22 )

NOTE

1. To ensure a more efficient monitoring of cases for


both supervision and report or ial purposes, the clerk of
court is now r equir ed to keep at least four separ at e
calendars reflect ing t he cases for pre-trial, for trial, those
whose t r ials were adjourned and post poned, and t hose
request ed to be set for hear ing. The so-called preferen•
tial cases must also be t aken into account. This sect ion
fur t he r make s i t the dut y of the pr e s id in g judge to
exercise direct supervisio n over those mat t er s.

Sec . 2. Assignment of cases. — The as s i g n m e n t


of case s to the d i fferent b ran ch e s of a Cou rt shall b
e d on e e x c l u s i v e l y b y raffle. The a s s i g n m e n t sh all
b e don e i n op e n s e s s i o n o f wh i c h a d e q u a t e n ot i c e
sh al l b e gi ve n s o a s t o afford i n t e r e s t e d p art i e s
op p o rt u n i t y to be p resen t . (7a, R22 )

NOTE

1. The assignment of cases is required to be done


exclusively by raffle, and t his set s aside the co nt r ar y
rulin g in Commissioner of Immigration vs. Reyes
328
RUL E 20 CALEND A R O F C AS E S SE C . 2

(L-23826, Dec. 28 , 1964). Also, t his provisio n of the


Rule reit erat es the requir ement in some circulars of the
Supreme Court t hat the raffle of cases shall be done in
open session wit h prior adequat e notice to the int erested
part ies.

329
RULE 21

S UB P O EN A

S ect i o n 1. Subpoena and subpoena duces tecum. —


Subpoen a i s a proces s directe d t o a perso n
r e q u i r i n g hi m t o a t t e n d an d t o t e s t i f y a t the
h ea ri n g or the trial of an act i on , or at any i n vest i •
gat ion c o n d u c t e d by comp et en t au t h ori t y, or for the
t aki n g of his d ep os i t i on . I t ma y also req u i re hi m
t o b ri n g w i t h h i m an y b o o k s , d o c u m e n t s , o r
oth er t hi n g s UNDER his cont rol, in wh i c h cas e i t i s
called a su b p oe n a duces tecum, (la , R23)

NOTE

1. The subpoena referred to in the first sent ence


of t his sect io n is dist inct ive ly called a subpo en a ad
testificandum. This is t he t echnica l and descr ipt ive
t erm for the ordinar y subpoena (Catty vs. Brobelbank,
124 N.J. Law 360, 12 A. 2d 128).

Sec. 2. By whom issued. — The su b p oen a ma y


be i ssu e d by:
a ) The C o u rt b e f o r e w h o m the w i t n e s s i s
req u i red to att en d ;
b) The Cou rt of the p lace wh er e the d ep o s i t i o n
i s to be t aken;
c) The officer or body au t h o ri ze d by law to do
so in c on n e c t i o n wit h i n ve st i gat i on s c o n d u c t e d by
said officer or body; or
d ) An y J u s t i c e o f the S u p r e m e Cou rt o r o f
the Court of Ap p eal s in an y cas e or i n ves t i g at i o n
p e n d i n g wi t hi n the Ph i li p p i n e s .

330
RUL E 21 SUBPOEN A SE C . 3

When ap p li cat i on for a su b p oen a to a p ri son e r


i s made, the jud ge or officer shall exa m i n e and study
carefu lly su c h app li cati on to d et ermi n e wh et h e r the
same is mad e for a valid p u rp ose.
N o p r i s o n e r s e n t e n c e d t o d e a t h , reclusion
perpetua or life i mp ri son m en t and wh o is con fi n ed
in an y pena l i n st i t u t i o n sh all be b rou gh t out si d e
the sai d p e n a l i n s t i t u t i o n for a p p e a r a n c e o r
a t t en d a n c e in any cou rt u n les s au th ori zed by the
S u p rem e Court. (2a, R23)

NOTES

1. . The e n u m e r a t i o n of the p e r so n s who


ar e aut horized to issue subpoenas has been expanded by
the inclusion of t he officer or body aut hor ized by law
in connect ion wit h invest igat ions conducted by them.
Also, a municipal t rial court may now issue a
subpoena for the at t endance before it of a prisoner
even if he is not confined in a munic ipal jail, unless
such pr isoner has been se nt e nc e d to deat h ,
reclusion perpetua or life i m p r i s o n m e n t an d his
des ir e d a p p e a r a n c e ha s not been authorized by t he
Supreme Court.

2. . The las t two p a r a g r a p h s of t hi s sect io n


are precaut ionar y measur es evolved from judicial
experience. These were t aken from Ad minist r at ive
Circular No. 6 of the Supreme Court, dated December 5,
1977.

Sec. 3. Form and contents. — A su b p o e n a shall


st at e the nam e o f the Cou rt an d the t it le o f the act i o
n or i n v e s t i g a t i o n , shal l be d i rect e d to the p erso n
wh os e a t t e n d an c e i s req u i red , and in the cas e of a
s u b p o e n a duces tecum, i t sh a l l al s o c o n t a i n a
r e a s o n a b l e d e s c r i p t i o n of the b ooks , d o c u m e n t s o r
t h i n g s d eman d e d whi c h mus t appear to the cou rt
prima facie relevant. (3a, R23)
331
RUL E 2 1 R E M E D I A L LAW C O M P E N D I U M SECS . 4 , 5

Sec. 4. Quashing a subpoena. — The Cou rt ma y


q u a s h a s u b p o e n a duces tecum u p o n m o t i o n
p ro mp t ly mad e and, in an y even t , at or before the
t i m e sp ec i fi e d t h e re i n i f i t i s u n r e a s o n a b l e an d
o p p r e s s i v e , o r the r e l e v a n c y o f the b o o k s ,
d o c u m e n t s o r t h i n g s d oe s no t a p p e a r , o r i f the
p e rs o n i n w h o s e b eh a l f the s u b p o e n a i s i s s u e d
fa i l s t o a d v a n c e the r e a s o n a b l e co s t o f the
p rod u ct i o n thereof.

The cou rt ma y q uas h a su b p o en a ad testifican•


dum on the grou n d that the w i t n e s s i s not b ou nd
t h e re b y . I n e i t h e r c a s e , the s u b p o e n a ma y b e
q u a sh e d o n the grou n d that the w i t n e s s fees and
k i l o m e t r a g e a l l o w e d b y t h e s e R u l e s w e r e no t
t en d e re d wh e n the su b p o en a wa s se rved . (4a, R23)

NOTE

1. A subpoena duces tecum may be quashed upon


proof t hat (a) it is unr easo nable and oppressive, (b) the
art icles sought to be produced do not appear prima facie
to be r eleva nt to the issues, and (c) the person asking
for the s u bpo e n a does not adva nc e the cost for the
product ion of the art icles desired.
The second par agr aph of Sec. 4 was added to make it
explicit t hat a subpoena ad testificandum may also be
quashed if the wit ness is not bound t her eby (see Sec. 10).
Also, it was considered necessary to r eit er at e herein, by
m a k i n g no n - c o mp l i a nc e a gr o un d for q u a s h a l of a
s u bp o e n a duces tecum, t hat the w it ne s s fees an d
k i lo met r a g e sho uld be t end er e d upon ser vice of t he
s u bp o e n a (see Sec. 6), whic h r e q u i r e m e n t is often
deliberat ely or unknowingly overlooked.

S ec . 6. Subpoena for depositions. — P ro o f of


se rvi ce of a n ot i c e to take a d ep o si t i on , as p rovi d e d
in sect i on s 15 and 25 of Rule 23 , shal l c o n s t i t u t e

332
RUL E 21 SUBPOEN A S E C S . 6- 8

s u f f i c i e n t a u t h o r i z a t i o n for the i s s u a n c e o f
s u b p o e n a s for the p e rs o n s n ame d i n said n ot i c e
by the clerk of the cou rt of the place in wh i c h the
d e p o s i t i o n i s t o b e t ake n . The cler k sh al l not,
h oweve r , i ssu e a su b p oen a duces tecum to any suc h
p erson wi t h ou t an order of the cou rt. (5a, R23)

S ec . 6 . Service. — S e r v i c e of a s u b p o e n a
shall be mad e in the same man n e r as p erson a l or
s u b s t i t u t e d s e r v i c e o f s u m m o n s . The o ri g i n a l
shal l be e xh i b i t e d an d a cop y t h e re o f d e l i v e re d
to the p erso n on wh o m i t i s served , t e n d e ri n g to
hi m the fee s for on e d ay' s a t t e n d a n c e an d the
k i l o m e t ra g e a l l ow e d b y t h es e Ru les, excep t t hat,
whe n a s u b p o en a i s issu e d b y o r o n behal f o f
the R e p u b l i c of the P h i l i p p i n e s or an offi cer or
agen c y thereof, the t en d e r nee d not be mad e. The
se rvi c e mu s t be mad e so as to allo w the w i t n e s s
a r e a s o n a b l e t i m e for p re p a ra t i o n and t rave l to
the p lace of at t e n d an c e . If the su b p oen a is duces
tecum, the rea s on a b l e cost of p rod u ci n g the books,
d o c u m e n t s o r t h i n g s d e m a n d e d sh a l l als o b e
t en d ered . (6a, R23)

Sec. 7. Personal appearance in court. — A person


p re s e n t i n C o u rt b efor e a j u d i c i a l of fi ce r ma y
be req u i red to testi fy as i f he were in at t en d an c e
upo n a s u b p o e n a i ssu e d b y su c h C o u rt o r
officer. (10, R23)

Sec. 8. Compelling attendance. — In cas e of


fai lu re of a wi t n e s s to at t en d, the cou rt or j ud ge
i s su i n g the s u b p o e n a , upo n proof o f the servi c e
t h e re o f an d o f the fai lu r e o f the w i t n e s s , ma y
i ssu e a w a r r a n t to the sh eri f f of the p ro v i n c e ,
o r hi s d e p u t y , t o arre s t the w i t n e s s an d b ri n g
him before the court or officer where his att en d an ce

333
RUL E 21 R E M E D I A L L AW COMPENDIU M S E C S . 9 , 10

i s re q u i r e d , an d the cos t o f su c h w a r r a n t an d
s e i z u r e o f s u c h w i t n e s s s h a l l b e p ai d b y the
w i t n e s s i f the Cou rt i s s u i n g i t sh al l d e t e r m i n e
t h at hi s f a i l u r e t o a n s w e r the s u b p o e n a wa s
willfu l and wi t h ou t just excu se . (11 , R23)

Sec. 9 . Contempt. — F a i l u r e by an y p e r s o n
wi t h ou t ad eq u at e cau s e to obey a su b p oe n a served
upo n hi m shall be d eeme d a con t e mp t of the cou rt
from wh i c h the su b p oen a i s i ssu ed . I f the su b p oen a
wa s not i ssu e d by a court, the d i s o b e d i e n c e t h eret o
shall be p u n i sh e d in acco rd an c e wit h the app li cab le
law or Rule. (12a, R23)

NOTE

1. See Sec . 3, et seq., Rule 71 on i nd ir e c t or


c o ns t r u ct iv e c o nt e mp t . While, UNDER t hat sect io n,
indirect co nt empt is to be punished only after wr it t en
charge and hear ing, i t i s also provided t hat "not hing
in t his sect ion shall be so const rued as to pr event the
court from issuing process to br ing the accused part y
int o co urt , or from ho ld ing him in cust o dy pend in g
such proceedings."

Sec. 10. Exceptions. — The p ro vi si o n s of sect i on s


8 and 9 of thi s Rule sh all not ap p ly to a w i t n e s s wh o
re s i d e s mor e t h a n on e h u n d re d (100) k i l o m e t e r s
fro m hi s r e s i d e n c e t o the p la c e w h e r e h e i s t o
t e st i f y by the o rd i n a r y cou rs e of trave l , or to a
d e t e n t i o n p ri son e r i f no p e rmi s s i o n of the cou rt in
wh i c h hi s cas e i s p en d i n g wa s ob t ained . (9a, R23)

NOTES

1. The right not to be compelled to attend upon a


subpoena by reason of the dist ance from the residence of
the wit ness to the place where he is to testify is somet imes

334
RUL E 21 SUBPOEN A SE C . 10

called the viatory right of a wit ness. The present provi•


sion, unlike its predecessor, does not dist inguish as to
whet her or not the wit ness resides in the same province
as the place where he is required to go and testify or
produce document s. What is now det erminat ive is t hat
the d is t a nc e be t w e e n bot h place s does not exceed
100 kilo met ers by the ordinar y course of travel, generally
by o ver la nd t r a ns p o r t at io n . The for mer dist anc e of
50 kilomet ers has been increased in view of the faster
and more available means of travel now obtaining in the
country.
2. In the case of Petition for Contempt Against
Benjamin Ravanera (L-15902, Dec. 23, 1964), the Supreme
Court declined to pass on the issue as to whet her t his
viatory right is available in criminal cases. However, in
the later case of People vs. Montejo (L-24154, Oct. 31 , 1967),
it was held t hat t his right is available only in civil cases.

335
RULE 22

COMPUTATION OF TIME

S ect i o n 1. How to compute time. — In co m p u t i n g


any p eri od of time p re sc ri b ed or al lo we d by t h es e
Ru les, or by ord er of the court, or by an y ap p li cab le
st at u t e, the day of the act or even t from wh i c h the
d e s i g n a t e d p e ri o d o f tim e b egi n s t o ru n i s t o b e
e xc l u d e d an d the dat e o f p e rf o rm a n c e i n c l u d e d .
I f the las t da y o f the p eri od , a s t hu s c o m p u t e d ,
falls on a S at u rd a y , a S u n d ay , or a legal h oli d a y
i n the p lac e wh e r e the Cou rt si t s , the tim e sh all not
run un ti l the nex t work i n g day. (n)

NOTES

1. The pert inent provisions of the Civil Code st at e:


"Art. 13. When the laws speak of year s, mo nt hs,
days or night s, i t shall be understood t hat years are
of t hre e hu ndr e d sixt y-five days each; mo nt hs, of
t hirt y days; days, of t went y- four hours; and night s
from sunset to sunr ise.
If mo nt hs are designat ed by t heir name, t hey
shall be computed by the number of days which they
respect ively have.
In co mput ing a per iod, t he first day shall be
excluded, and the last day included."
2. This Rule refers to the co mput at ion of a period of
time and not to a specific date fixed for the performance
of an act. It applies only when t he period of t ime is
prescr ibed by t hese Rules, by order of the court or by
any applicable statute. It adopts the rule on pret ermiss io n
of ho lidays, t hat is, the exclusion of such ho lidays in
the co mput at io n of the period, w henever the first two
condit ions st at ed in t his sect ion are present .

336
RUL E 22 C O M P U T A T I O N O F TIM E

3. Thus, the met hod of comput at ion under t his Rule


does not generally apply to those provided in a contract
(Art. 1159, Civil Code), a specific dat e set for a court
hear ing or a foreclosure sale (Rural Bank vs. CA, et al., L-
32116, April 21,1981) or prescript ive (not reglement ary)
per io d s specifica lly pr o vided by the Revised P ena l
Code for felonies t herein (Yapdiangco vs. Buencamino, L-
28841, June 24, 1983).

4. Since this Rule is likewise based on the provisions


of Art. 13 of the Civil Code, the meaning of the t er ms
t herein are also applicable. Accordingly, a pleading filed
on the last day of t he r egle me nt ar y period but after
office hours is still considered seasonably filed if duly
mailed (Caltex [Phil.], Inc. vs. Katipunan Labor Union,
98 Phil. 340) or is received by a person aut horized to do
so (see De Chavez vs. Ocampo, et al., 66 Phil. 76), since
a day consists of 24 hours.

5. As explained her eaft er in Rule 39, the period


of redempt ion of real propert ies sold at execut ion sale is
12 mont hs, hence following the provisions of this Rule in
relat ion to the aforequoted Art. 13 of the Civil Code, the
redempt ion period is actually 360 days. In comput ing when
such period begins to run or ends, the provisions of this
Rule govern.

6. In co nsider ing the applicat io n of t he rule on


pr et er miss io n of ho lidays, the second sent ence of t his
section refers to the place where the court sits. This is
because cert ain non- working holidays, or special days
as they were somet imes t ermed, are applicable to and
observed only in some part icular places or regions of
the country.
7. In Labad vs. The University of Southwestern
Philippines, et al. (G.R. No. 139665, Aug. 9, 2001),
this sect ion and t he subsequent ramificat ions ar is ing
t her efro m were expla ined by the S upr eme Court as

337
RUL E 22 R E M E D I A L LA W C O M P E N D I U M SE C . 1

herein subst ant ia lly indicat ed, t hus: "Based on Sec. 1,


Rule 22 and as applied in several cases, where the last
day for doing any act required or permit t ed by law falls
on a Sat urday, a Sunday, or a legal holiday in t he place
where the court sit s, t he t ime shall not run unt il t he next
wo r king day. In t hi s case, pet it io ner st ill had unt il
December 28, 1998, a Monday and t he next business
day, to move for a 15-day ext ensio n consider ing t hat
December 26, 1998, the last day for pet itioner to file her
pet it ion for review, fell on a S at urday. The mot ion for
ext ension filed on December 28, 1998 was filed on t ime
since it was filed before the expirat ion of the t ime sought
to be ext ended."
The nex t issu e t o r eso lv e wa s how the 15-da y
ext ension should be reckoned, eit her from December 26,
1998 or December 28, 1998. As a rule, t he ext ensio n
should be t acked to the original per iod and commence
i m m e d i a t e l y aft e r the e x p i r a t i o n o f suc h p er io d .
However, in Moskowsky vs. Court of Appeals, et al.
(G.R. No. 104222, Mar. 3, 1994) and Vda. de Capulong,
et al. vs. Workmen's Insurance Co., Inc., et al. (L-30960,
Oct. 5, 1989), the S upreme Court allowed the ext ended
period to commence from t he specific time prayed for
in the mot ion for ext ensio n. In t hi s case, pet it io ne r
specifically manifest ed t hat she be gr ant ed an ext ension
of 15 days from December 28, 1998, or unt il J a nuar y 12,
1999, to file her pet it io n for review. The per iod for
reckoning the co mmencement of the addit ional 15 days
should hence be from December 28, 1998. Accordingly,
he r p e t it io n filed w it h t he Co ur t o f Ap p e a l s o n
J a nu a r y 12, 1999, exact ly 15 days from December 28,
1998, was filed on t ime.

8. . On t he co mp le me nt ar y decis io na l rule in
t he comput at io n of periods as applied to pleadings, see
the notes under Sec. 6, Rule 11.

338
RUL E 22 C O M P U T A T I O N O F TIM E SEC . 2

9. The much later case of Commissioner of Internal


Revenue, et al. vs. Primetown Property Group, Inc.
(G.R. No. 162155, Aug. 28, 2007) calls for a revisit ing of
the foregoing comment s and holdings on the comput at ion
of periods of t ime allowed or prescribed by the Rules, a
court order or an applicable st at ut e. It shall be noted here
t hat the period of time in disput e involves Sec. 229 of the
Nat ional I nt er nal Revenue Code which provides for the
two-year prescript ive period for filing a judicial claim for
tax refund or credit reckoned from the payment of said
tax or penalt y. There was no quest ion t hat the t axpayer' s
right to claim a refund or credit arose on April 14, 1998
when it filed its final adjusted r et ur n. The cont roverted
issue was whet her the two-year period was equivalent to
730 days, pur sua nt to Art. 13, Civil Code, as claimed by
pet it ioner, hence the respondent ' s claim submit t ed 731
days after its aforesaid r et ur n was one day beyond the
prescript ive period; or, as contended by the respondent,
the 731st day was wit hin the prescript ive period since the
year 2000 was a leap year and accordingly consisted of
366 days.

The S u p r e me C o u r t r ecalle d t hat in National


Marketing Corporation vs. Tecson (97 Phil. 70), it had
ruled t hat a year is equivalent to 365 days regardless of
whet her it is a calendar year or a leap year, which was
not always consist ent ly so. At any rate, it called at tent ion
to the fact t hat in 1987, E.O. 297, or the Administ rat ive
Code of 1987, was enacted, and Sec. 31 , Chapt er VIII,
Book I thereof provides:

Sec. 31 . Legal Periods. - "Year" s ha l l be


understood to be twelve calendar mont hs; "month" of
thirt y days unless it refers to a specific month in which
case it shall be computed according to the number of
days the specific mont h contains; "day" to a day of
twenty-four hours; and "night" from sunrise to sunset.

339
RUL E 22 REMEDIA L LAW COMPENDIU M SEC . 1

I t expla ined t hat a ca le ndar mo nt h is " a mo nt h


designat ed in the calendar wit hout regard to the number
of days it may contain. It is the period of t ime running
from the beginning of a certain numbered day up to, but
not including, the corresponding numbered day of the next
month, and if t here is not a sufficient number of days in
the next mont h, t hen up to and including the last day of
t hat mo nt h. To illu st r at e, one ca le nda r mont h from
Dece mber 31 , 2007 will be from J a n u a r y 1 , 2008 to
Ja nuar y 31 , 2008; one calendar month from J a nuar y 31 ,
2008 will be from Febr uar y 1, 2008 unt il Febr uar y 29,
2008."

Since t here obviously exists a manifest incompatibilit y


in the ma nner of comput ing legal periods under the Civil
Code and the Ad m in ist r at ive Code of 1987, the Court
declared t hat the aforecited provision of E.O. 292, being
the more recent law, governs t he co mput at ion of legal
periods. Since the two-year prescript ive period under the
facts of t his case consist ed of 24 calendar mo nt hs and
respondent ' s claim was filed on the last day of the 24th
ca le nd ar mo nt h, i t was co nsequent ly filed wit hin the
prescript ive period.

10. T hi s ta x cas e U N D E R c o m m e n t affo r ds the


opport unit y to invit e at t ent ion to some of the holdings of
the S upr eme Court in National Marketing Corporation,
vs. Tecson, et al. (139 Phil. 584) on the ant ecedent s of
Art. 13 of the Civil Code which limits the connot at io n of
each "year" t herein to 365 days. Prior to the Civil Code of
Spain, the Spanish S upreme Court had held t hat when
the law spoke of mont hs, it meant a month of 30 days, not
the "nat ural," "solar," "calendar," (or "civil") mont hs in the
absense of express provisions to the contrary. This concept
was modified in the P hilippines by Sec. 13 of our Revised
Ad minist rat ive Code, pur suant to which a "mont h" shall
be understood to refer to a "calendar" mo nt h. With the
enact ment of our Civil Code, we revert ed to the rule in

340
RUL E 22 COM PUTATIO N O F TIM E SE C . 1

the Spanis h Civil Code, but wit h t he addit ion of "years,"


which wa s o r da ined to mea n 365 days. The pr es e n t
provisions of E.O. 292 again adopt s t hat concept of a
calendar mont h, wit h the modification of how many shall
compose a year.

11. . As ear lier observed, the met hod of co mput at ion


under t his Rule does not in general apply to prescript ive
periods provided t herein by the Revised Penal Code for
fe lo nies suc h a s i n Ar t s . 9 0 an d 9 1 t hereo f. The
Yapdiangco case, supra, expands on t his edict on the
a u t ho r it y of local an d foreign do ct r ine s. I t is t her e
d e mo n s t r a t e d t hat a m ist a k e i s so met i me s mad e in
applying st at ut es of limit at ions in criminal cases and civil
suit s. The two classes of st at ut es are essentially different.

I n civil s u it s , the s t a t u t e i s i nt e r po se d b y t he
legislat ure as an impar t ial ar bit er. In t he construct ion of
the pena l st at ut e, t here is no int endment to be made in
favor of eit her part y. In criminal cases, the St ate is the
gr ant o r s ur r e nd e r i n g by an act of grace the r ight to
prosecute and declar ing an offense to be no longer the
subject of prosecut ion, hence such st at ut es of limit at ions
are liberally const rued in favor of the accused.
Also, the rule on pret ermission of holidays in civil suit s
provides t hat in const ruing its st at ut e of limit at ions, the
first day is excluded and the last day included, unless t hat
last day is dies non in which case the act may be done on
the succeeding business day. In criminal cases, such a
s it u at io n canno t le ngt he n the period fixed by law to
prosecute such offender. The waiver or loss of the right to
prosecute is auto mat ic and by operat ion of law. Where
the last day to file an informat ion falls on a Sunday or
legal holiday, the period cannot be ext ended up to the
next working day since prescript ion has already set in.
The que st io n of t he applicabil it y of t his Rule in
comput ing periods provided by an "applicable st at ut e," as

341
RUL E 22 R E M E D I A L LA W C O M P E N D I U M SE C . 2

gener ically referred to, could yield the occasion for a


r e le va nt cr it ique based on our own legal s yst em and
bibliography.
Sec. 2. Effect of interruption. — S h ou l d an act
b e don e wh i c h effect i vely i n t erru p t s the ru n n i n g
o f the p e ri o d , the a l l o w a b l e p e ri o d aft e r su c h
i n t e r ru p t i o n sh al l st ar t t o ru n o n the da y after
n ot ice of the c e s s a t i o n of the cau s e thereof.
The da y o f the act that cau se d the i n t e rru p t i o n
shall be e xc l u d e d in the co m p u t at i o n of the p eri od,
(n)

NOTE

1. The original draft of this sect ion referred to an


act or event which effectively int err upt s the r unning of
the period of time co nt emplat ed in the preceding section.
The even t r efer r e d to would inc lud e force majeure,
fort uitous event s or calamit ies. The quest ion, of course,
is t he det er minat io n of when the event occurred and was
t er minat ed, and how the part y affected would know or be
made aware of the period of such int err upt io n. It was
believed t hat notice thereof can be given by the court to the
part ies, on a case to case basis.
The word "event " was accordingly e lim i nat ed and
only t he "act" done was ret ained as an express cause for
the int err upt io n since t hat fact would obviously be made
known or notice t hereo f given to the part y concerned.
P ar e nt het ic a l l y, t he int er r upt io n of the r eg le me nt ar y
period as underst ood in t his sect ion does not have the
same concept as int er rupt io n for purposes of t he st at ut e
of limit at ions or prescr ipt ive periods in the Civil Code.

342
RULE 23

D E P O S I T I O N S PEN D IN G ACTION

Sectio n 1. Depositions pending action, when


may be taken. — By leav e of cou rt after j u ri sd i ct i on
ha s b ee n o b t a i n e d ove r an y d e f e n d a n t o r ove r
p ro p e r t y w h i c h i s the su b j e c t o f the a c t i o n , o r
wi t h ou t suc h leav e after a n an swe r has bee n served ,
the t e s t i m o n y of an y p erson , wh et h e r a party or not,
ma y b e t a k e n , a t the i n s t a n c e o f an y p art y , b y
d e p o s i t i o n u p o n ora l e x a m i n a t i o n o r w r i t t e n
i n t e rro g a t o ri e s . The at t en d an c e o f wi t n e s s e s ma y
be co m p e l l e d by the us e of a su b p oen a as p rovi d e d
i n Ru l e 21 . D e p o s i t i o n s sh al l b e t a k e n on l y i n
a c c o rd a n c e wit h t h es e Ru les. The dep o si t i o n of a
p e rs o n c o n f i n e d i n p ri so n ma y b e take n onl y b y
leave of Cou rt on suc h t erm s as the cou rt p resc ri b es,
(la , R24)

NOTES

1. Rules 23 to 28 provide for the different modes of


discovery t hat may be resorted to by a part y to an action,
viz.:
a. Deposit ions pending action (Rule 23);
b. Depo s it io n s before act io n or pend in g appeal
(Rule 24);
c. I nt er rogat or ies to part ies (Rule 25);
d. Admission by adverse part y (Rule 26);
e. Product ion or inspect ion of document s or t hings
(Rule 27); and
f. P hys ic a l an d me nt a l e xa m i nat io n of per so n s
(Rule 28).

343
RUL E 23 R E M E D I A L LA W C O M P E N D I U M SE C . 1

Rule 29 provides for the legal consequences for the


refusal of a part y to comply wit h such modes of discovery
lawfully resort ed to by the adverse part y.
2. In criminal cases, the t aking of the deposit ion of
wit nesses for the prosecut ion was formerly aut horized by
Sec. 7, Rule 119 for t he purpo se of p er p et u at in g t he
evidence to be present ed at the t rial, wit hout a similar
provision for defense wit nesses. However, in the 1985
Rule s o n C r i m i n a l P r o c e d u r e , only the co nd it io na l
e x a m i n a t i o n , an d no t a depo s it io n , of p r o s e c u t io n
wit nesses was per mit t ed (Sec. 7, Rule 119) and t his was
followed in the lat est revision (Sec. 15, Rule 119).

3. Deposit ions are classified into:


a. Deposit ions on oral examinat io n and deposit ions
upon wr it t en int errogat or ies; or
b. De po s it io n s de bene esse an d depo s it i o n s in
perpetuam rei memoriam.
Deposit ions de bene esse are those t aken for purposes
of a pending action and are regulat ed by Rule 23, while
deposit ions in perpetuam rei memoriam are those t aken
to per pet u at e evidence for pur poses of an a nt ic ipat ed
action or furt her proceedings in a case on appeal and are
now regulat ed by Rule 24.

4. . The court may det ermine whet her the


deposit ion s ho u l d b e t a k e n upo n ora l e x a m i n a t i o n o
r w r it t e n int errogat or ies to prevent abuse or
har a ss me nt (De los Reyes vs. CA, et al., L-27263, Mar.
17, 1975).

5. . Tr ia l judg e s should e nco ur age t he use of


t he different modes of discovery since a knowledge of
the evidence of the adverse part y may facilit ate an
amicable set t le ment or expedit e the t rial of a case.
However, since resort t her et o is not mandat ory, if the
part ies choose not to avail of discovery procedures, the pre-
t rial should be set accordingly (Koh vs. IAC, et al.,
344
G.R. No. 71388,

345
RUL E 23 DEPOSITION S P E N D I N G AC T I O N SE C . 1

Sept. 23, 1986). This impasse is sought to be part ially


remedied by the revised Rules.

6. It is the dut y of each cont ending part y to lay


before the court all the mat er ia l and r e le van t facts known
to him, suppr essing or concealing not hing, nor p r e v e nt i n
g a n o t h e r p a r t y , b y cle ver an d adr o i t ma nipu lat io n of
the t echnical rules of evidence, from also pr esent ing all
the facts wit hin his knowledge.
Init ially, t hat dut y to lay t he facts before the court is
accomplished by the pleadings filed by the part ies but only
in a general way as only ult imat e facts are set forth in the
pleadings. A bill of part iculars may be ordered by the
court on mot ion of a part y but the office of a bill of
part icular s is limited to making more part icular or definite
the u lt i m a t e fact s in a plead ing, and not to supply
evident iar y mat t er s. These evident iar y mat t er s may be
inquired into and learned by the part ies before the trial
t hrough the deposit ion-discovery mechanism in Rules 24
to 29.
U n f o r t u n a t e l y , i t a p p e a r s t hat a mo n g far too
many lawyers (and not a few judges) t here is, if not a
r egr et t able unfa mi liar it y and even outr ight ignorance
abo u t the n a t u r e , p ur po s e s an d o p e r a t io n s o f the
modes of discovery, at least a st rong yet unreasoned and
unr easo nable disinclinat ion to resort to them - which is
a great pity for the int elligent and adequat e use of the
deposit ion-discovery mechanism, coupled with pre-tria l
p r o c e d u r e , could effect ively s ho r t e n the per io d of
l it i g a t io n an d spee d up ad ju d ic at io n (Republic vs.
Sandiganbayan, et al., G.R. No. 90478, Nov. 21, 1991).

7. The ot her principal benefits desirable from the


availabilit y and operat ion of a liberal discovery procedure
are: (1) it is of great assist ance in ascert aining the t rut h
and prevent ing perjury because the wit ness is examined
while his memory is still fresh, he is generally not coached,
he cannot at a lat er date contradict his deposit ion, and

346
RUL E 23 R E M E D I A L L AW COMPENDIU M SE C . 2

his deposit ion is preserved in case he becomes unavailable;


(2) it is an effective means of det ect ing and exposing
fake, fraudulent and sham claims and defenses; (3) it
make s a va i la b l e in a s i mp le, co nve nie n t and often
inexpensive way facts which ot herwise could not have
been proved later; (4) it educat es the part ies in advance
of trial on the real values of their claims and defenses,
t her eb y e nco ur a g in g s e t t le me nt s out of court ; (5) i t
expedites the disposal of lit igat ions, saves the time of the
court and helps clear the dockets; (6) it safeguards against
surprise at the trial, prevent s delays, simplifies the issues,
and t hereby expedit es the t rial; and (7) it facilitates both
the pr ep ar at io n and t rial of cases (Fortune Corporation
vs. CA, et al., G.R. No. 108119, Jan. 19, 1994).

8. Sec. 1 of t his Rule provides t hat a deposition may


be resorted to after jur isdict ion has been obtained over any
defendant , not all defendant s. Leave of court is not
necessar y to take a deposit ion after an answer to the
complaint has been filed, but such leave is required where
no answer has yet been filed (even if jur isd ict io n has been
obt ained over any defendant ), since before the filing of
the answer , leave of court may be gr a nt e d bu t only in
e xc e p t io na l or u n u s u a l s i t u a t i o n s (Republic vs.
Sandiganbayan, et al., G.R. No. 112710, May 30, 2001).

Sec. 2. Scope of examination. — Un les s o t h e rw i s e


ord e re d by the Cou rt as p rovi d e d by sect i o n 16 or
1 8 o f th i s Ru le , the d e p o n e n t ma y b e e x a m i n e d
r e g a r d i n g an y m a t t e r , no t p r i v i l e g e d , w h i c h i s
r e l e v a n t t o the s u b j e c t o f the p e n d i n g a c t i o n ,
w h e t h e r re l a t i n g t o the clai m o r d e f e n s e o f an y
ot h e r party, i n c l u d i n g the e xi s t e n c e , d e s c ri p t i o n ,
n a t u re , c u s t o d y , c o n d i t i o n , an d l o c a t i o n o f an y
b ooks , d o c u m e n t s , o r ot h e r t a n g i b l e t h i n g s an d
the i d e n t i t y an d l o c a t i o n o f p e r s o n s h a v i n g
k n o w l e d g e of re levan t facts. (2, R24)

347
RUL E 23 DEPOSITION S P E N D I N G ACTI O N SECS . 3 , 4

Sec. 3. Examination and cross-examination. —


E xa m i n a t i o n an d c ro s s - e xa m i n a t i o n o f d e p o n en t s
may p roceed as p e rmi t t ed at the trial U NDER sect i on s
3 to 18 of Rule 132. (3a, R24)

NOTE

1. The officer before whom the deposit ion is t aken


does not have the power to rule upon object ions to the
quest ions. He should merely have such objections noted
in the deposit ion (see Sec. 17).

Sec. 4. Use of depositions. — At the trial or upo n


the h e a r i n g o f a m o t i o n o r a n i n t e r l o c u t o r y
p ro ce ed i n g , an y part or all of a d ep os i t i o n , so far
as ad mi s si b l e UNDER the ru les of evi d en c e , ma y be
u s e d a g a i n s t an y p a rt y wh o wa s p r e s e n t o r
rep re s en t e d at the t aki n g of the d ep osi t i o n or wh o
had du e n ot i c e thereof, in acco rd a n c e wit h an y on e
of the fo l l owi n g p rovi si on s :
(a) Any d e p o s i t i o n ma y be use d by an y party
for the p u rp os e of con t rad i ct i n g or i m p e a c h i n g the
t e s t i m o n y of d ep o n en t as a wi tn ess ;
(b) The d ep os i t i o n of a party or of an y on e wh o
at the tim e of t aki n g the d ep osi t i o n wa s an officer,
d i rect or, or m a n ag i n g agen t of a pub li c or p ri vat e
co rp o rat i on , p a rt n e rsh i p , or a s so ci a t i o n wh i c h i s
a party ma y be use d by an ad vers e party for an y
p u rp ose;
(c) The d ep osi t i o n of a wit n ess , wh et h e r or not
a party, ma y be use d by any party for any p u rp os e
i f the cou rt finds: (1) that the wit n es s i s dead; or
(2) that the wi t n e s s resi d e s at a d i st an ce more tha n
one h u n d re d (100) ki lo met e rs from the place of trial
or h eari n g , or i s ou t of the Ph i li p p i n es , u n les s i t
ap p ears that his ab sen c e wa s p rocu red by the party
off e ri n g the d e p o s i t i o n ; o r (3) that the w i t n e s s ,

348
RUL E 23 R E M E D I A L LA W C O M P E N D I U M SE C . 4

i s u n a b l e t o a t t e n d o r t e s t i f y b e c a u s e o f age ,
si ckn e ss , infi rmity, or i mp ri son men t ; or (4) that the
party of fe ri n g the d e p o s i t i o n ha s bee n u n ab l e t o
p rocu re the at t en d a n c e of the w i t n e s s by su b p oen a ;
o r (5) u p o n a p p l i c a t i o n an d n o t i c e , t h at su c h
e x c e p t i o n a l c i r c u m s t a n c e s e xi s t a s t o mak e i t
d e si rab l e , in the i n t eres t o f j u st i c e an d wit h due
r e g a r d t o the i m p o r t a n c e o f p r e s e n t i n g the
t e s t i m o n y o f w i t n e s s e s ora l l y i n op e n cou rt , t o
allow the d e p o s i t i o n to be u sed; and
(d) If on l y par t of a d e p o s i t i o n is offe red in
e v i d e n c e by a party, the ad vers e party ma y req u i re
hi m to i n t rod u c e all of i t wh i c h i s re levan t to the
part i n t rod u ced , an d an y party ma y i n t rod u c e any
oth e r parts. (4a, R24)

NOT E S

1. . Wher e t he wit ne ss is ava ila ble to t est ify


and t he sit uat ion is not one of t hose excepted under Sec.
4 of t his Rule, his deposit ion t heretofore t aken is
inadmissible in evidence and he should in lieu t her eo f
be made to testify (Vda. de Sy-Quia vs. CA, et al.,
G.R. No. 62283, Nov. 25, 1983).

2. A depo s it io n may be used for i mp e a c h i n g or


cont radict ing any wit ness, but it can be used as evidence
by a p a r t y ("for an y p u r p o s e " ) U N D E R the specific
condit ions set out in Sec. 4. If the deposition is t hat of a
part y or of an employee of a corporat ion which is a part y,
it can be used by the adverse part y for impeachment of
the deponent or as direct evidence of his case, whet her
t he depo nen t i s ava ilable or not; but said deposit io n
cannot be used by the depo nent -part y as evidence of his
case, unless he or the corporate employee cannot testify
for any reason st at ed in Par. (c). If the deponent is only
a wit ness and is available at the trial, his deposit ion cannot
be used as evidence but may be used only to impeach him.

348
RUL E 23 DEPOSITION S P E N D I N G AC TIO N SE C . 5

If the deponent -wit ness is not available under any of the


cir cumst ances in Par. (c), t hen his deposit ion can be used
as direct evidence.

3. . UNDE R the for mer Sec. 4(c)(2), the


d ist a nc e provided was more t ha n 50 kilomet ers from the
residence of the deponent to the place of trial or
hear ing. It has now been increased to more t han 100
kilo met ers, as in the ame nd me nt to the rule on
subpoenas and for the same reason (see Sec. 10, Rule 21).

4. Depo s it io ns ar e chiefly a mode of discover y.


They are int ended as a means to compel disclosure of facts
rest ing in t he knowledge of a part y or other persons which
are relevant in a suit or proceeding in court. Deposit ions
and the ot her modes of discovery are meant to enable a
part y to learn all the mat er ia l and relevant facts, not only
known to him and his wit nesses but also those known to
the adverse part y and the lat t er' s own wit nesses.
Deposit ions are not generally meant to be a subst it ut e
for the actual test imony in open court of a part y or wit ness.
The depo nen t must , as a rule, be pr e s e nt e d for oral
e xa m i nat io n in open court a t the t r ial. I ndeed, any
deposit ion offered to prove the facts t here in at the t rial of
the case, in lieu of the act ual test imony of the deponent in
court, may be opposed and excluded for being hearsay,
except in those specific inst ances aut horized by the Rules
UNDE R p a r t i c u l a r co nd it io ns and for cer t ai n limit ed
purposes (Dasmarinas Garments, Inc. vs. Reyes, etc., et
al., G.R. No. 108229, Aug. 24, 1993).

Sec. 5. Effect of substitution of parties. — Su b st i •


t u t i o n of p art i e s doe s not affect the ri ght to us e
d ep o s i t i o n s p revi ou s l y t aken; and, whe n an act ion
has bee n d i s m i s s e d and an ot h e r act ion i n vo lv i n g
the same su b j ect i s aft erward b rought b et wee n the
same p art i es or th ei r rep re s en t at i ve s or su cc es s o r s
in i nt erest , all d ep os i t i o n s lawfu lly t ake n and duly

349
RUL E 23 R E M E D I A L LA W C O M P E N D I U M S E C S . 6- 9

filed in the former act i on may be use d in the latter


as i f ori gi n al ly t ake n t herefor. (6, R24)

Sec. 6. Objections to admissibility. — S u b j ect to


the p ro vi si on s of sect i o n 29 of thi s Rule, ob j ect i on
ma y be mad e at the trial or h ea ri n g to re c e i v i n g in
e v i d e n c e an y d e p o s i t i o n o r part t h e re o f for an y
r e a s o n w h i c h w o u l d r e q u i r e the e x c l u s i o n o f
the e vi d e n c e i f the wi t n es s wer e the n p re se n t and
t est i fyi n g. (6, R24)

Sec. 7. Effect of taking depositions. — A p art y


sh al l no t b e d e e m e d t o mak e a p e r s o n hi s ow n
w i t n e s s for an y p u rp os e by t aki n g his d ep osi t i on .
(7, R24)

Sec. 8. Effect of using depositions. — The int ro•


d u c t i o n i n e v i d e n c e o f the d e p o s i t i o n o r an y
par t t h e r e o f for an y p u rp o s e ot h e r t h a n th at o f
c o n t ra d i c t i n g o r i m p e a c h i n g the d e p o n e n t make s
the d ep o n en t the wi t n e s s o f the p arty i n t ro d u ci n g
the d e p o s i t i on , but thi s shall no t app ly t o the us e
by an ad ve rs e p art y of a d ep o s i t i o n as d esc ri b e d in
p a ra g ra p h (b) of sect i o n 4 of thi s Rule. (8, R24)

Sec. 9. Rebutting deposition. — At the t ri al or h eari n g


, an y p arty ma y reb u t an y relev an t evi d en c e
c o n t a i n e d in a d e p o s i t i o n w h e t h e r i n t ro d u c e d by
hi m or by an y ot he r party. (9, R24)

NOTE

1. The int roduct io n of the deposit ion binds the part y


who int roduces it, since he t hereby makes the deponent
his wit ness, except (a) if it is int roduced to impeach or
contradict the wit ness, or (b) if it is the deposit ion of an
opposing part y.

350
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 0 -1 1 , 1 2

Sec. 10. Persons before whom deposition may be


taken within the Philippines. —- Wi t h i n the Ph i l i p • p i n e s
, d e p o s i t i o n s ma y b e t a k e n b e f o r e an y ju dge,
n ot ary pub li c, or the p erso n referred to in sect i o n 14
hereof. (10a, R24)

Sec. 11. Persons before whom depositions may


be taken in foreign countries. — In a forei gn st at e or
cou n t ry , d e p o s i t i o n s ma y b e t ake n (a) o n n ot i c e
befor e a S e c re t a ry o f e mb a s s y o r le g ati on ,
c o n s u l g e n e ra l , c on s u l , v i c e- c o n s u l , o r c o n s u l a r
agen t of the Rep ub li c of the Ph i li p p i n es; (b) before
su c h p e rs o n o r of fi ce r a s ma y b e a p p o i n t e d b y
c o m m i s s i o n or UND ER let t e r s rogat ory; or (c) the
p erso n referred to in sect i o n 14 hereof. (11a, R24)

NOTE

1. These two sections have been amended to include,


among the persons before whom depositions may be t aken,
any person aut horized to administ er oat hs and chosen or
st ipulat ed upon in writ ing by the part ies.

Sec. 12. Commission or letters rogatory. — A


c o m m i s s i o n or let t ers rogatory shall be i ssu e d only
wh e n n e c e s s a r y o r c on v en i en t , o n ap p li cat i on and
n ot i ce, and on suc h t erm s and wit h such d i rect i on
a s ar e j u s t an d a p p r o p r i a t e . O f fi ce r s ma y b e
d e s i g n a t e d i n n o t i c e s o r c o m m i s s i o n s ei t h e r b y
name or d e s c ri p t i v e title and let t ers rogat ory may
be ad d re s s e d to the ap p rop ri at e j u dici al aut h ori t y
in the forei gn cou n t ry. (12a, R24)

NOTES

1. A commission is addressed to any aut horit y in


a foreign co unt r y a u t ho r iz e d t her e i n to tak e down
deposit ions and the t aking of such deposit ion is subject to

351
RUL E 2 3 R E M E D I A L LAW C O M P E N D I U M S E C S . 1 3 -1 4

the rules laid down by the court issuing the commission.


Let t ers rogatory are addressed to a judicial aut hor it y in
the foreign count r y and the t aking of such deposit ion
is subject to the rules laid down by such foreign judicial
aut horit y (see The Signe, D.C. La., 37F. Supp. 819, 820).
Let t ers rogatory are generally resorted to when t here is
difficulty or impossibilit y of obtaining t he deposit ion by
commission (18 C.J. 653).

2. A commission may be defined as an ins t rument


issued by a court of just ice, or other compet ent tribunal,
to aut horize a person to take deposit ions or do any other
act by a u t ho r it y of suc h Co urt or t r i bu na l . L e t t er s
rogatory, on the other hand, are defined as inst r ument s
sent in the name and by aut hor it y of a judge or court to
anot her, request ing the lat t er to cause to be examined,
upon int errogat or ies filed in a cause pending before the
former, a wit ness who is wit hin the jurisdict ion of the judge
or court to whom such let t ers are addressed. Under our
Rules, a commission is addressed to officers designat ed
eit her by name or descript ive t it le, while let t ers rogatory
are addressed to some appropriat e judicial aut hor it y in
the foreign st at e. Lett ers rogatory may be applied for and
is sue d only aft e r a co m m is s io n ha s bee n r e t u r n e d
unexecut ed (Dasmarinas Garments, Inc. vs. Reyes, etc.,
et al., supra).

Sec. 13. Disqualification by interest. — No


d e p o s i t i o n shall be t ak e n before a p e rso n wh o is a
re lat i v e wi t h i n the si xt h d egre e o f c o n s a n g u i n i t y
or affi ni ty, or e m p l o y e e or c o u n s e l of an y of the
p art i es; or wh o i s a re lat i ve wi t h i n the sam e d eg ree ,
or e m p l o y e e of suc h cou n se l , or wh o i s fi n an ci al ly
i n t e re st e d in the act i on . (13a, R24)

Sec. 14. Stipulations regarding taking of deposi•


tions. — I f the p a r t i e s so s t i p u l a t e in w r i t i n g ,
d e p o s i t i o n s ma y b e t ake n before an y p erso n aut h o -

352
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 5 -1 6

ri zed to ad mi n i st e r oat h s , at an y time or p lace, in


ac co rd a n c e wit h t h es e Ru le s , and wh e n s o t ake n
may be use d like oth e r d ep o si t i on s . (14a, R24)

NOTE

1. As earlier explained, the part ies may st ipulat e in


writ ing for the t aking of deposit ions before any person
aut horized to administ er oat hs, whet her the deposit ion is
to be t aken in the Philippines or in a foreign country. While
an equivalent of Sec. 14 was also provided in the former
Rules, it was stat ed t herein t hat the deposition before such
per so n may be t ake n "upon any not ice, and in any
manner." As a pr udent course of action, t hat phrase has
been r eplaced by an a me nd m e n t r eq uir ing t hat said
deposit ions be t aken in accordance wit h these Rules.

Sec. 16. Deposition upon oral examination; notice;


time and place. — A party d esi ri n g to take the d ep o •
si ti on of an y p erso n upo n oral e xa m i n a t i o n shall
give r e a s o n a b l e n ot i c e i n w ri t i n g t o ever y ot h e r
party to the act i on . The n ot ice shall state the time
and p lace for t aki n g the d ep o si t i o n and the nam e
an d a d d r e s s o f eac h p e r s o n t o b e e x a m i n e d , i f
kn own , an d i f the nam e i s not kn own , a gen e ra l
d esc ri p t i on suffici ent to identify hi m or the p arti cu •
lar class or grou p to wh i c h he belongs. On mot i o n
of any party upo n wh o m the n oti ce i s served, the
cou rt may for cau s e sh ow n en large or sh ort e n the
time. (15, R24).

Sec. 16. Orders for the protection of parties and


deponents. — After n ot i c e is se rv e d for t a k i n g a
d e p o s i t i o n b y ora l e x a m i n a t i o n , u p o n m o t i o n
season ab ly mad e by any party or by the p erso n to
be exa mi n e d and for good caus e sh own , the cou rt
i n w h i c h the a c t i o n i s p e n d i n g ma y ma k e a n
order that the d ep os i t i o n shall not be taken, or that

353
RUL E 23 R E M E D I A L LAW COMPENDIU M SE C . 17

i t ma y be t ake n only at some d e s i g n a t e d p lace oth er


tha n that st at e d in the n ot i ce , or that i t ma y be t a k e
n on l y o n w ri t t e n i n t e r r o g a t o r i e s , o r th at cert ai n
mat t er s shall not be i n q ui red into, or that the scop e
of the exa mi n at i o n shall be held wit h no on e
p re s e n t excep t the p art i e s t o the act i o n and th ei r
officers or coun sel , or that after b ein g sealed the
d e p o s i t i o n shall be op en e d only by ord er of the cou rt ,
o r that sec re t p ro c e s s e s , d e v e l o p m e n t s , o r re se a rc h
nee d not be d i sc lo s ed , or that the p art i es shal l
s i m u l t a n e o u s l y file sp eci f i e d d o c u m e n t s or
i n fo rma t io n en c lo se d i n seale d e nv e lo p e s t o b e
op en e d as d i rect e d by the court; or the Cou rt ma y mak
e an y ot h e r ord e r wh i c h j u s t i c e re q u i re s t o p r o t e c t
the p a rt y o r w i t n e s s fro m a n n o y a n c e ,
e m b a r ra s s m e n t , or op p re s si on . (16a, R24)

Sec. 17. Record of examination; oath; objections. —


The officer before wh o m the d ep osi t i on i s to be t ake n
shall pu t the w i t n e s s o n oat h an d shall p e rs o n a l l y ,
o r b y s o m e o n e act i n g UNDER hi s d i re c t i o n an d i n
his p re s e n c e , record the t e s t i m o n y o f the w i t n es s .
The t e s t i m o n y sh al l b e t a k e n s t e n o g r a p h i c a l l y
u n les s the p art i e s agre e o t h e rw i s e . All ob j ect i on s
m a d e a t the t i m e o f the e x a m i n a t i o n t o the
q u a li f i c at i on s o f the officer t aki n g the d ep o si t i o n , or
t o the m a n n e r o f t aki n g it, o r t o the e v i d en c e
p re s e n t e d , or to the con d u c t of an y party, and an y
oth e r ob j ect i on to the p ro c e e d i n g s , shall be n ot e d
b y the o f f i c e r u p o n the d e p o s i t i o n . E v i d e n c e
ob j ect e d to shall be t ake n su b j ect to the ob j ect i on s .
I n li e u o f p a r t i c i p a t i n g i n the oral e x a m i n a t i o n ,
p art i e s se rve d wit h n ot i c e of t aki n g a d ep o s i t i o n
ma y t r a n s m i t w r i t t e n i n t e r r o g a t o r i e s t o the
officers, wh o sh all p ro p ou n d t h e m t o the w i t n e s s
and record the a n s w e r s verbatim. (17, R24)

354
RUL E 23 D E P O S I T I O N S P E N D I N G ACT IO N S E C S . 1 8 -1 9

Sec. 18. Motion to terminate or limit examination.


— At an y tim e du ri n g the t aki n g of the d ep o si t i on ,
o n m o t i o n o r p e t i t i o n o f an y p art y o r o f th e
d e p o n en t an d up o n a s h o w i n g that the e xa m i n a • tio
n i s b ei n g c o n d u c t e d i n bad fait h o r i n su c h man n er
a s u n re a s o n a b l y t o an n oy , emb a rra s s , o r op p res s
the d ep on en t or party, the cou rt in whi c h the act i o n
i s p e n d i n g or the Regi on al Trial Court of the place
wh er e the d ep osi t i o n i s b ein g t ake n may ord e r the
offi cer c o n d u c t i n g the e x a m i n a t i o n t o ceas e
fo rt h wi t h from t aki n g the d ep os i t i on , or ma y li mi t
the scop e an d m an n e r o f the t ak i n g o f the d ep o si t i o n
, as p rovi d e d in sect i o n 16 of thi s Rule. I f the
ord er mad e t e r m i n a t e s the e xa m i n a t i o n , i t shall be
re su m e d t h erea ft e r on ly upo n the order of the cou rt
in wh i c h the act ion i s p end i n g . Upo n de• m an d o f the
o b j e c t i n g p art y o r d e p o n e n t , the t aki n g of the
d ep o s i t i o n shall be s u s p en d e d for the time n e c e s s a r y
to mak e a not i ce for an order. In g ra n t i n g o r re f u s i n g
su c h ord e r , the Cou rt ma y i mp os e upo n ei t h e r part y
or upo n the wi t n es s the req u i re m e n t to pay suc h
cost s or exp en s e s as the court ma y d ee m re a son ab l e
. (18a, R24)

Sec. 19. Submission to witness; changes; signing. —


Wh e n the t e s t i m o n y i s fu ll y t r a n s c r i b e d , the
d e p o s i t i o n sh al l b e s u b m i t t e d t o the w i t n e s s for
e xa m i n a t i o n and shall be read to or by him, u n les s
suc h e xa m i n at i o n and read i n g are wai ve d by the
wi t n e s s and by the part i es. Any ch an g e s in form
o r s u b s t a n c e wh i c h the w i t n e s s d e s i re s t o mak e
shall be ent ere d upo n the d ep o si t i o n by the officer
wi t h a s t a t e m e n t o f the r e a s o n s gi v e n b y the
w i t n e s s for m a k i n g th em . The d e p o s i t i o n sh al l
the n be si gn e d by the wi tn ess , u n les s the p art i es
b y s t i p u l a t i o n wai v e the s i gn i n g o r the w i t n e s s
is ill or can n o t be found or refu ses to sign. If the

355
RUL E 2 3 R E M E D I A L LAW C O M P E N D I U M S E C S . 2 0 -2 3

d ep o s i t i o n i s not si gn e d by the wi t n es s , the officer


shall sign i t an d state on the record the fact of the
wai ve r or of the i lln es s or ab sen c e of the wi t n e s s or
the fact o f the refu sa l t o sig n t o g e t h e r wit h the reaso
n gi ve n t h erefo r, i f an y, an d the d e p o s i t i o n ma y
t he n be use d as fully as t h ou g h si gn ed , un les s on a
mot i o n to su p p res s UNDER sect i o n 29 (f) of thi s Ru le
, the Cou rt h old s that the re a s o n s gi ve n for the
re fu sa l to sign req u i re rej e ct i on of the d ep osi • tion in
wh ol e or in part. (19a, R24)

Sec. 20. Certification and filing by officer. — The


offi c e r sh a l l c e rt i f y o n the d e p o s i t i o n t h at the
w i t n e s s wa s d u l y swo r n t o b y hi m an d th at the
d e p o s i t i o n i s a tru e record of the t es t i m o n y gi ve n
b y the w i t n e s s . H e sh al l t h e n s e c u re l y sea l the
d e p o s i t i o n in an en ve lop e i n d orse d wit h the title of
the act i o n and marke d " Dep osi t i on o f ( h ere in sert
the nam e of wi t n e s s) " an d shall p rom p t l y file i t wit h
the Cou rt in wh i c h the acti o n i s p e n d i n g or sen d i t
by reg i st e re d mail to the clerk t h ereo f for filing. (20,
R24)

Sec. 21 . Notice of filing. — The officer t aki n g the


d e p o s i t i o n shall give p romp t n ot i c e of its fi ling to
all the p art i es. (21 , R24)

Sec. 22. Furnishing copies. — Upo n p a y m e n t of


rea sonabl e c h a r g e s t h e r e f o r , the o f f i c e r sh a l l
fu rn i sh a cop y of the d e p o s i t i o n to an y part y or to
the d e p on e n t . (22 , R24)

Sec. 23. Failure to attend of party giving notice. —


If the part y gi vi n g the n oti ce of the t aki n g of a d epo •
si t i o n fails t o at t en d an d p roc e e d t h e re w i t h an d
an ot h e r at t e n d s in p erso n or by cou n s e l p u rsu an t
t o the not i ce , the cou rt ma y ord er the part y gi vi n g

356
RUL E 23 D E P O S I T I O N S P E N D I N G AC TIO N S E C S . 2 4 -2 6

the noti ce to pay suc h ot h er party the amou n t of


the rea s on a b l e e xp e n s e s i n cu rred by hi m and his
counse l i n s o attending , includin g rea sonab l e
att orn ey' s fees. (23a, R24)

Sec. 24. Failure of party giving notice to serve sub•


poena. — If the party gi vi n g the noti ce of the t aki n g
of a d ep o si t i o n of a w i t n es s fails to serve a su b p oen a
upo n hi m and the wi t n es s b ecau se of suc h failure
doe s not at t end , and i f an ot h e r party at t en d s in
p erso n or by cou n se l b ecau s e he exp ect s the d epo•
si ti on of that wi t n e s s to be t aken , the cou rt ma y
order the party gi vi n g the n ot ice to pay suc h ot her
p a rt y the a m o u n t o f the r e a s o n a b l e e x p e n s e s
i n cu rred by hi m and his cou n se l in so at t en d i n g ,
i n c l u d i n g re as on a b l e att orn ey' s fees. (24a, R24)

Sec. 25. Deposition upon written interrogatories;


service of notice and of interrogatories. — A p art y
d esi ri n g to tak e the d ep o si t i o n of any p erso n upo n
w ri t t e n i n t e r r o g a t o r i e s sh a l l s e rv e t h e m u p o n
every oth e r party wit h a n oti ce st at in g the nam e
and ad d res s of the p e rso n wh o i s to an swe r t h e m
and the nam e or d esc ri p t i ve tit le and add res s of the
officer before wh o m the d ep osi t i o n i s to be t aken.
Within te n (10) day s th ereaft er, a party so served
ma y serv e c r o s s - i n t e r r o g a t o r i e s u po n the p art y
p rop o si n g to take the d ep osi t i on. Within five (5)
d ay s t h e re a f t e r , the lat t e r ma y serv e r e - d i re c t
i n t e r r o g a t o r i e s u p o n a p art y wh o ha s s e rv e d c ro s s-
i n t e rro g at o ri e s. Within th ree (3) days after b e i n g
s e r v e d wi t h re - d i r e c t i n t e r r o g a t o r i e s , a party ma y
serve rec ro s s - i n t e rro gat o ri e s upo n the party
p rop o si n g to take the d ep osi t i on . (26, R24)

Sec. 26. Officers to take responses and prepare


record. — A cop y of the n oti c e an d cop i e s of all

357
RUL E 23 R E M E D I A L LAW COMPENDIU M S E C S . 2 7 -2 9

i n t e r r o g a t o r i e s se rve d shal l b e d e li v e re d b y
the p a rt y t a k i n g the d e p o s i t i o n t o the of fi ce r
d e s i g n a t e d i n the n o t i c e , wh o s h a l l p r o c e e d
p romp t ly, in the man n er p rovi d ed by sect i on s 17,
19 and 20 of thi s Rule, to take the t est i m on y of the
w i t n e s s in re sp on s e to the i n t erro g at o ri e s and to
p re p a re , certi fy, an d file or mai l the d e p o s i t i o n ,
a t t a ch i n g t h e re t o the cop y o f the not i c e an d the
i n t e rro g at o ri e s re cei ve d by him. (26, R24)

Sec. 27. Notice of filing and furnishing copies. —


Whe n a d ep os i t i o n upo n i n t e r rog at o r i e s i s filed, the
officer t aki n g i t shall p ro mp t ly give n ot ice th ereo f
to all the p art i es, and ma y fu rn i sh cop i e s to th e m
o r t o the d e p o n e n t u po n p a y m e n t o f re a s o n a b l e
ch arge s t h ere fo r. (27, R24)

Sec. 28. Orders for the protection of parties and


deponents. — After the se rvi ce of the i n t e rro ga t o ri e s an
d p ri o r t o the t a k i n g o f the t e s t i m o n y o f the d e p o n e n t
, the C o u rt i n w h i c h the a c t i o n i s p en d i n g , on
mot i o n p romp t l y mad e by a p art y or a d e p o n en t , and
for good cau s e sh own , ma y mak e an y ord e r s p e c i f i e
d in s e c t i o n s 15, 16 an d 18 of t hi s Rule wh i c h i s
ap p rop ri a t e an d jus t or an ord er that the d e p o s i t i o n
shall not be t ake n before the officer d es i g n a t e d in the
n ot i c e or that i t shall not be t ake n exc ep t upo n oral
e xa m i n a t i o n . (28a, R24)

Sec. 29. Effect of errors and irregularities in


depositions. —
(a) As to notice. — All errors and i rre gu la ri t i e s
in the n oti c e for t a k i n g a d e p o s i t i o n are wai v e d u n les
s w ri t t e n ob j ect i o n i s p romp t l y serve d upo n the
p art y gi vin g the n ot i ce.

358
RUL E 23 DEPOSITION S P E N D I N G AC T I O N SE C . 2 9

(b) As to disqualification of officer. — O bject i on


to t aki n g a d ep o si t i o n b ecau s e of d i sq u a li f i c at i on
of the officer before wh o m i t i s to be t ake n i s wai ve d
u n le s s mad e before the t aki n g o f the d e p o s i t i o n
b egi n s or as soon t h erea ft e r as the d i sq u a li f i c at i on
b e co me s know n o r coul d b e d i s co v e re d wit h
re a son ab l e d i li gen c e.
(c) As to competency or relevancy of evidence. —
O b j ect i on s to the c o m p et e n c y of a wi t n e s s or the
co mp et en c y , re le va n c y , or mat eri a li t y of t est i mon y
are not wai ve d by failu re to mak e t h e m before or
d u ri n g the t a k i n g o f the d e p o s i t i o n , u n l e s s the
grou n d of the obj ect i on i s on e wh i c h migh t hav e
been ob vi at ed or remov e d i f p re se n t e d at that time.
(d) As to oral examination and other particulars. —
E r r o r s an d i r r e g u l a r i t i e s o c c u r r i n g a t the
ora l e x a m i n a t i o n i n the m a n n e r o f t a k i n g the
d ep o s i t i o n , in the form of the q u est i on s or an sw e rs ,
in the oat h or af fi rm at i on , or in the c o n d u c t of the
p art i es and errors of any kind wh i c h migh t be
ob vi at ed, removed , or cured i f p romp tly p rosecu t ed ,
are wai ve d u n le s s re as on ab l e ob ject ion t h eret o i s
made at the t aki n g of the d ep osi t i on .
(e) As to form of written interrogatories.— Objec•
t i o n s t o the fo r m o f w r i t t e n i n t e r r o g a t o r i e s
s u b m i t t e d UNDER sect i on s 26 and 26 of thi s Rule
are wai ve d u n les s served in wri t i n g upon the party
p r o p o u n d i n g t h e m w i t h i n the tim e a l l o w e d for
se rvi n g s u c c e e d i n g cross or ot her in t e rro gat o ri e s
and wi t h i n t h ree (3) day s after servi ce of the last
i n t e rro g at o ri e s au t h ori zed .
(f) As to manner of preparation. — Errors and
i rregu la ri t i es in the man n er in wh ic h the t e st i mo n y
i s t ran sc ri b ed or the d ep osi t i o n i s p rep ared, si gn ed ,
ce rt i fi ed , seal ed , i n d o rs ed , t ra n s m i t t e d , filed, or
ot h e rw i s e d ealt wit h by the officer u nd er sect i on s

359
RUL E 24 R E M E D I A L LA W C O M P E N D I U M SE C . 2 9

17, 19, 20 to 26 of thi s Rule are wai ve d u n les s a mo•


tion to su p p res s the d ep os i t i o n or som e part t h ereo f
i s mad e wit h re a s o n a b l e p r o m p t n e s s aft er su c h
defect is, or wit h du e d i li ge n c e mi gh t hav e b een , as•
ce rt ai n ed . (29a, R24)

360
RUL E 2 4

D E P O S I T I O N S BE F O R E ACT I O N
O R P E N D I N G AP P E AL

S e ct io n 1. Depositions before action; petition. — A


p e r so n wh o d e s ir e s t o p e r p e t u a t e hi s ow n t e st i mo n y
o r t hat o f a n o t h e r p e r s o n r e g a r d i n g an y m a t t e r t hat
ma y b e c o g n i z a b l e i n an y C o u r t o f t he P h i l i p p i n e s ,
ma y file a ver i f ie d p e t it io n in t he C o ur t of t he p lac e
o f t he r e s i d e n c e o f an y e x p e c t e d a d v e r s e p a r t y ,
( la , R134 )

Sec . 2. Contents of petition. — The p e t i t io n sha l l


b e e n t i t l e d i n t he n a m e o f t he p e t i t i o n e r an d shal
l s ho w : (a) t ha t t he p e t it i o n e r e xp e ct s t o b e a p ar t y t
o a n a ct io n i n a Co u r t o f t he P h i l i p p i n e s bu t i s
p r e s e n t l y u n a b l e t o br i n g i t o r c a u s e i t t o b e b r o u g h t
; (b) t he s u b j e c t m a t t e r o f t he e x p e c t e d act io n an d
hi s i nt e r e s t t he r e i n ; (c) t he fact s whi c h h e d e s i r e s t
o e st a b l i s h b y t he p r o p o s e d t e s t i m o n y an d hi s
r e a s o n s fo r d e s i r i n g t o p e r p e t u a t e it ;
(d) t he na m e s o r a d e s c r i p t i o n o f t he p e r s o n s h e
e xp e c t s will b e a d v e r s e p a r t ie s an d t he i r a d d r e s s e s
s o far a s k no w n ; an d (e) t he na me s an d a d d r e s s e s o f
t he p e r s o n s t o b e e x a m i n e d an d t he s u b s t a nc e o f
t he t e s t i m o n y w h i c h h e e x p e c t s t o e l i c i t fr o m
eac h , an d shal l as k for a n o r d e r a u t h o r i z i n g t he pe •
t it io ne r t o t ak e t he d e p o s it io n s o f t he p e r s o n s t o b e
e xa m i n e d n a m e d i n t he p et it io n for the p u r p o s e o f
p e r p e t u a t i n g t he i r t e s t i mo n y . (2, R134)

Sec. 3. Notice and service. — The p e t it io n e r sha l l s e r v


e a no t i c e u p o n eac h p e r s o n n a m e d i n t he pet it io n a
s a n expe ct e d a d ve r s e part y , t o g e t he r wit h a copy of
t he p et it io n , s t at i n g t hat the p e t i t i o n e r will app l y t o
t he co urt , a t a t im e an d plac e na me d

361
RUL E 24 R E M E D I A L LA W C O M P E N D I U M S E C S . 4-7

t h e re i n , for the ord e r d e s c ri b e d i n the p e t i t i o n .


A t leas t t w e n t y (20) day s b efore the dat e o f the
h e a ri n g , the Cou rt sh al l cau s e n ot i c e t h e re o f t o
be serve d on the p art i es and p ro sp ect i v e d e p o n e n t s
i n the m a n n e r p rovi d e d for se rvi c e o f s u m m o n s . (3a,
R134)

Sec. 4. Order and examination. — If the cou rt is


sati sfi ed that the p e rp et u at i o n of the t e s t i m o n y ma y
p re ve n t a fai lu re or d ela y of j u st i ce , i t sh all mak e
a n ord e r d e s i g n a t i n g o r d e s c r i b i n g the p e r s o n s
wh os e d e p o s i t i o n ma y b e t ake n an d sp e ci f yi n g the
su b j ect mat t e r o f the e xa m i n a t i o n , an d w h et h e r the
d e p o s i t i o n s shall b e t ake n upo n oral e xa m i n a t i o n
o r w ri t t e n i n t e rro g a t o ri e s . The d e p o s i t i o n s ma y
t he n be t ake n in a c c o rd a n c e wit h Rul e 23 before
the h eari n g . (4a, R134)

Sec. 5. Reference to court. — For the p u rp o s e of


a p p l y i n g Rul e 23 to d e p o s i t i o n s for p e rp e t u a t i n g
t e s t i m o n y , eac h re fe re n c e t h e rei n t o the Cou rt i n
w h i c h the act i o n i s p e n d i n g sh al l b e d e e m e d t o
refer t o the Cou rt i n wh i c h the p et i t i o n for su c h
d e p o s i t i o n wa s filed. (5a, R134)

Sec. 6. Use of deposition.— If a d ep o si t i o n to per•


p et u at e t e s t i m o n y i s t ake n UNDER thi s Ru le, or if,
a l t h o u g h no t so t aken , i t wou l d be a d m i s s i b l e in
e v i d e n c e , i t ma y b e u se d in an y acti o n i n vo l v i n g
the sam e su b j ec t mat t e r s u b s e q u e n t l y b rou gh t i n
a c c o rd a n c e wit h the p rovi s i on s of se ct i o n s 4 an d 5
of Ru le 23. (6a, R134)

Sec. 7. Depositions pending appeal. — If an


ap p eal ha s bee n t ake n from a j u d g m e n t of a court,
i n c l u d i n g the Court of Ap p eal s in p rop e r case s , or
b efo r e the t a k i n g o f d e p o s i t i o n s o f w i t n e s s e s t o

362
RUL E 2 4 D E P O S I T I O N S B E F O R E ACT IO N SECS . 1-7
O R P E N D I N G A P P E AL

p erp et u at e th ei r t est i m on y for use in the even t of


further p ro ce ed i n g s in the said court. In suc h case
the party wh o d esi re s to p erp et u at e the t est i m on y
may mak e a mot i o n in the said court for leave to
tak e the d e p o s i t i o n s , up o n the sam e n ot i c e an d
se rvi ce t h ereo f as i f the acti on wa s p en d i n g t h erei n .
The mot ion shall state (a) the name s and a d d re s se s
of the p erson s to be exa mi n e d and the su b st an c e
o f the t e st i m o n y wh i c h h e exp e ct s t o eli ci t from
each ; an d (b) the re a s o n for p e r p e t u a t i n g t h ei r
t est i mon y. I f the cou rt finds that the p e rp et u at i o n
of the t e s t i m o n y i s p rop e r to avoi d a fai lu r e or
d ela y o f j u st i c e , i t ma y mak e a n ord e r a l l o w i n g
the d e p o s i t i o n s t o b e t aken , an d t h e r e u p o n the
d e p o s i t i o n s ma y b e t a ke n an d use d i n the sam e
m a n n e r an d U N D E R the sam e c o n d i t i o n s a s ar e
p re sc ri b ed in th es e Ru les for d ep o si t i on s t ake n in
p en d i n g act i on s. (7a, R134)

NOTES

1. This was formerly Rule 134 and has been t rans•


posed here. As dist inguished from depositions de bene esse
which are governed by Rule 23, this Rule regulat es the
t aking of deposit ions in perpetuam rei memoriam, the pur•
pose of which is to perpet uat e the test imony of wit nesses
for probable use in a future case or in the event of furt her
proceedings in t he same case. For other ways of perpetu•
at ing test imony in criminal cases, see Secs. 12, 13 and 15
of Rule 119 and the notes t hereunder.
2. Sec. 1 is the procedure for perpet uat ing testimony
of wit nesses prior to the filing of the case and in ant icipa•
tion thereof. Sec. 7 is the procedure in per pet uat ing
test imony after judgment in the Regional Trial Court and
before it has become executory or during the pendency
of an appeal therefrom.

363
RUL E 24 R E M E D I A L LA W C O M P E N D I U M S E C S . 1-7

3. It is submit t ed t hat Sec. 1 may not be availed of


in criminal cases, but the procedure in Sec. 7 is available
in all actions, including cr iminal cases.
4. Alt hough t here is no local jur ispr udence on the
mat t er, it is also submit t ed t hat deposit ions in perpetuam
rei memoriam under this Rule, just like any other deposi•
tions, are t aken condit ionally and to be used at the trial
or proceeding only in case the deponent is not available.
This view appear s to be sust ained by the fact t hat under
Sec . 6 of t hi s Ru le , d e p o s i t io n s in perpetuam rei
memoriam may be used in the action in accordance with
the provisions of Secs. 4 and 5 of Rule 23 which provide,
inter alia, for sit uat io ns wher ein the deponent cannot
testify as a wit ness dur ing t he t rial.

5. Deposit ions t aken under this Rule do not prove


the exist ence of any r ig ht and the t est i mo ny t her e i n
perpet uat ed is not in itself conclusive proof, eit her of the
exist ence of any right nor even of the facts to which they
relat e, as i t can be cont rovert ed at the t r ial in the same
ma nner as t hough no per pet uat io n of t est imony was ever
had (Alonso, et al. vs. Lagdqmeo, 7 Phil. 75). However,
in the absence of any objection to the t aking t hereof and
even if the depo nent did not testify at the hear ing of the
case, the perpet uat ed test imony const it ut es prima facie
proof of the facts referred to in his deposit ion (Rey vs.
Morales, 35 Phil. 230).

364
RULE 25

INTERROGATO RIES TO PARTIES

S ect i o n 1. Interrogatories to parties; service thereof.


— Und er the same con d i t i on s sp eci fi ed in sect i o n 1
of Rule 23, an y party d esi ri n g to elici t mat e ri al and
re levan t fact s from an y ad vers e p art i es shall file
and serve upo n the latter w ri t t en i n t e rro gat o ri e s
to be an sw e re d by the party served or, i f the party
s e r v e d i s a p u b l i c or p ri v a t e c o r p o r a t i o n or a
p a rt n e rs h i p or as so ci at i o n , by any officer t h ereo f
c o m p e t e n t to t est i fy in its behalf, (la )

Sec. 2. Answer to interrogatories. — The i nt er •


rogat o ri e s shall be an sw e re d fully in wri t i n g and
shall be si gn e d an d swor n to by the person maki n g
t hem . The part y upo n wh o m the i nt e rro gat o ri e s
have bee n serve d shall file and serve a copy of the
an sw e r s on the party su b m i t t i n g the i n t errogat o •
ries wi t h i n fifteen (15) days after servi ce thereof,
u n le s s the cou rt , o n mot i o n an d for goo d cau s e
sh own , ext en d s or sh ort en s the time. (2a)

Sec. 3. Objections to interrogatories. — Objections


t o an y i n t e r ro g a t o ri e s ma y b e p r e s e n t e d t o the
court wi th i n ten (10) days after se rvi ce thereof, with
notice as in case of a mot ion; and an s we r s shall be
d eferred unt i l the ob j ect i on s are re s olved , wh i c h
shall be at as early a time as is p ract icab le. (3a)

Sec. 4. Number of interrogatories. — No p art y


may, wi t h ou t leave of court, serve more tha n one
set of i n t e rro gat o ri e s to be an swere d by the same
party. (4)

365
RUL E 25 R E M E D I A L LAW COMPENDIU M SE C . 5

Sec. 6. Scope and use of interrogatories. — Inter•


rog at o ri e s ma y relat e to an y mat t er s that ca n be
i n q u i re d int o UNDER sect i o n 2 of Rule 23, and the
a n s w e r s ma y be use d for the sam e p u rp o se s pro•
vid e d in sect i o n 4 of the sam e Rule. (5a)

NOTES

1. Jus t like deposit ions, a part y may serve wr it t en


int errogat or ies to the ot her part y wit hout leave of court
only after answer has been served. Before that , leave of
court must be obt ained. Under the same consider at ions,
int errogat or ies may embrace any relevant mat t er unless
the same is (a) privileged or (b) prohibit ed by court order.

2. A judgment by default may be rendered against


a p a r t y wh o fails t o ser v e hi s a n s w e r t o w r i t t e n
int errogat or ies (Cason vs. San Pedro, L-18928, Dec. 28,
1962; see Sec. 3fcJ, Rule 29).

3. . After ser vice of the a nswer , leave of court


is not required for the service of writ t en int errogat or ies
upon a part y {Arellano vs. CFI of Sorsogon, et al., L-
34897, July 15, 1975).
4. The libert y of a part y to make discovery is well-
nig h u n r e s t r i c t e d i f the m a t t e r s inq u ir e d int o ar e
ot herwise relevant and not privileged, and the inquir y is
made in good fait h and wit hin the bounds of law. In light
of t he general philosophy of full discovery of relevant facts,
it is fairly rare t hat it will be ordered t hat a deposit ion should
not be t aken at all. It is only upon notice and good cause
shown t hat the court may order t hat a deposit ion sha ll not
be t aken . Good cause mean s a su bst a nt i a l reaso n — one
t hat affords a legal excuse. The mat t er of good cause is to
be det er mined by the court.
The fact t hat a part y had previously availed of a mode
of discovery, which is by wr it t en int errogat ories, cannot
be considered as good cause to pr event his resort to a

366
RULE 25 INTERROGATORIE S T O PARTIE S SE C . 6

deposit ion on oral examinat io n because: (a) the fact t hat


informat ion similar to t hat sought had been obtained by
answers to int errogat ories does not bar an examinat io n
before trial, and is not a valid objection to the t aking of a
deposit ion in good faith, t here being no duplicat ion; and
(b) knowledge by t he pet it ioner of the facts concerning
which the proposed deponent is to be examined does not
justify refusal of such examinat io n. The var ious modes
of discovery under the Rules are clearly int ended to be
cumulat ive, and not alt er nat ive or mut ually exclusive
(Fortune Corporation vs. CA, et al., G.R. No. 108119,
Jan. 19, 1994).

Sec. 6. Effect of failure to serve written interrogato•


ries. — U n l e s s t h e r e a f t e r a l l o w e d by the Cou rt
for good cau s e sh ow n and to p reven t a failu re of
j u st i ce, a party not served wit h wri tt en i nt erroga•
t ori es ma y not be comp el led by the ad verse party
t o gi v e t e s t i m o n y i n op e n c ou rt , o r t o gi v e a
d ep o s i t i o n p en d i n g app eal, (n)

NOT E

1. To under score the import ance and significant


benefit s of discovery procedures in t he adjudicat ion of
cases, this new provision encourages the use of writ t en
int errogatories by imposing prejudicial consequences on
the part y who fails or refuses to avail himself of wr it t en
int errogatories wit hout good cause. A similar provision
has been incor por at ed in t he succeeding Rule 26 for non-
availment of request s for admission by the opposing part y.
These two provisions are directed to the part y who fails
or refuses to resort to the discovery procedures t herein, and
should not be confused with the provisions of Rule 29
whic h pr o v id e s for s a nc t io n s or ot he r consequences
upon a part y who refuses or fails to comply with d isco ver y
p r o c e d u r e s duly a va i le d of by his opponent.

367
RUL E 25 R E M E D I A L LA W C O M P E N D I U M SE C . 6

Where a part y unjust ifiedly refuses to elicit facts


mat er ial and relevant to his case by addressing wr it t en
int errogatories to the adverse part y to elicit those facts,
the latt er may not t hereaft er be compelled to testify thereon
in court or give a deposit ion pending appeal. The just ifi•
cation for t his is t hat the part y in need of said facts hav•
ing foregone the opport unit y to inquire into the same from
the ot her part y t hrough means available to him, he should
not t hereaft er be per mit t ed to unduly burden the lat t er
wit h courtroom appear ances or ot her cumberso me pro•
cesses. The sanct ion adopt ed by the Rules is not one of
compulsion in t he sense t hat the part y is being directly
compelled to avail of the discovery mechanics, but one of
negat ion by depriving him of evident iar y sources which
would ot herwise have been accessible to him.

368
RUL E 26

AD M I S S I O N BY ADVE RS E PARTY

S e ct io n 1. Request for admission. — At an y t im e


aft e r is su e s hav e bee n jo i ne d , a p a r t y ma y file an d
ser v e upo n an y o t he r p ar t y a w r it t e n r e q u e s t for
t he a d m i s s io n b y t he lat t e r o f t he g e n u i n e n e s s o f an
y m a t e r i a l an d r e l e v a n t d o c u m e n t d e s c r ibe d i n an d
e x h i b it e d w it h t he r e q u e s t o r o f t he t r ut h o f an y
m a t e r i a l a n d r e l e v a n t m a t t e r o f fac t se t fo r t h i
n t he r e q u e s t . Co p ie s o f t he d o c u m e n t s sha l l b e
d e l i ve r e d wit h t he r e q u e s t u n le s s co pie s ha v e
a lr e a d y bee n fu r n i s he d , ( la )

Sec. 2. Implied admission. — E ac h of t he m a t t e r s


o f w hic h a n a d m i s s io n i s r e q u e s t e d shal l b e d e e me d
a d m it t e d u n le s s , w it h i n a p er io d d e s i g na t e d i n t he
r e q u e s t , w hic h s ha l l no t b e less t ha n fift een (15)
day s a ft e r ser v ic e t her eo f, o r w it hi n suc h fu r t he r
t im e a s t he Co u r t ma y a llo w o n mo t io n , t he p a r t y t o
who m t he r e q u e s t i s d ir e c t e d files an d ser ve s upo n
the p a r t y r e q u e s t i n g t he a d m is s io n a swor n st at e •
m e n t e i t h e r d e n y i n g s p e c i f i c a l l y t he m a t t e r s o f
whic h a n a d m i s s io n i s r e q u e s t e d o r s et t in g fo rt h i n
det ai l t he r e a s o n s wh y h e c a n no t t r ut hfu l l y e it he r
ad m i t o r den y t ho s e m a t t e r s .
O bje ct io n t o an y r e q u e s t for a d m i s s io n s ha l l b e
s u b m i t t e d t o t he C o u r t b y t he p a r t y r e q u e s t e d
w it h in t he per io d for an d pr io r t o t he filing o f hi s s wo r
n s t a t e m e n t a s c o nt e m p l a t e d i n the p r e c e d i n g
p a r a g r a p h an d hi s c o mp l i a n c e t h e r e w i t h shal l b e
de fe r r e d u nt i l suc h o bje ct io n s ar e r e so lve d , w hic h
r e s o l u t i o n sha l l b e ma d e a s ear l y a s p r a c t ic a b l e .
(2a)

369
RUL E 26 R E M E D I A L LAW COMPENDIU M S E C S . 1-3

Sec. 3. Effect of admission. — An y a d m i s s i o n


mad e by a party p u rsu an t to suc h req u es t is for the
p u rp os e of the p e n d i n g act i o n only and sh all not
c o n s t i t u t e a n a d m i s s i o n b y hi m for an y o t h e r
p u rp os e nor ma y the sam e be use d agai n s t hi m in
an y oth e r p roc ee d i n g . (3)

NOTES

1. Rule 26, as a mode of discovery, co nt emp lat es


int errogat or ies seeking clarification in order to det ermine
the t rut h of the a llegat io ns in a pleading. A request for
admissio n should not merely reproduce or reit er at e the
allegat io ns of the request ing part y' s pleading but should
set forth relevant evident iar y mat t er s of fact, or documents
descr ibed in and exhibit ed wit h the r equest , for t he
pur po se of est ablis h ing t he part y' s cause of act ion or
defense. On the ot her hand, the adver se part y should
not be co mp e l le d to ad mi t m a t t e r s of fact a lr e a d y
admit t ed in his pleading and concerning which t here is no
issue, nor should he be r equir ed to make a second denial of
those mat t er s already denied in his answer to the
complaint (Po vs. CA, et al., L-34341, Aug. 22, 1988; Briboneria
vs. CA, et al., G.R. No. 101682, Dec. 14, 1992).

2. . Sec. 1 of t hi s Rule, as a m e nd ed ,
specifically r equ ir e s t hat t he facts so ught to be
ad m it t e d by t he adver se part y must be both mat er ia l
and relevant to the issu e s in the case. The sam e
r e q u i r e m e nt s of bot h mat er ialit y and relevancy have
likewise been specified in t he preceding Rule 25 on
r equest s for admission. This must be so since the fact in
quest ion may be relevant if it has a logical t endency to
prove a factual mat t er in the case but it may be
immat er ial if t hat factual mat t er is no longer in issue,
and vice-versa.

3. Sec. 2 now co nt ains a second p ar a g r a p h wit h


detailed provisions on objections to request s for admission,
as well as the effects and disposit ion thereof.
370
RUL E 26 A D M I S S I O N B Y A D VE R S E P ART Y SE C . 4

4. Where t he plaint iff failed to answer a request for


admission filed under t his Rule, based on its allegat ions
in its original complaint, the legal effects of its implied
admission of the facts st at ed in the request cannot be set
aside by its subsequent filing of an amended complaint.
It should have filed a mot io n to be r elieved of the
consequences of said implied admission (Bay View Hotel,
Inc. vs. Ker & Co., Ltd., et al., L-28237, Aug. 31, 1982).

5. Where a copy of the request for admission was


served only upon the counsel of the party so request ed,
it was held t hat t here was insufficient compliance with
Rule 26. The general rule t hat notices shall be served on
the counsel of a part y cannot apply where the Rules
expressly provide t hat it should be served upon a definite
person. Sec. 1 of this Rule provides t hat the request for
admissio n should be served on the party to whom the
request is direct ed. Hence, the request for admission
was not validly served and t hat part y cannot be deemed
to have ad m it t e d the t r ut h of t he mat t er s of which
admissio ns were r equest ed (Duque vs. CA, et al. and
Valenzuela, etc., et al. vs. CA, et al, G.R. No. 125383,
July 2, 2002).

6. However, an answer to a request for admission


properly served, which was signed and sworn to by the
counsel of the part y so request ed, is sufficient compliance
with this Rule, especially in light of counsel's aut horit y
under Secs. 21 and 23, Rule 138 (Lahada vs. CA, et al,
G.R. No. 102390 and Nestle Philippines, Inc., et al. vs.
CA, et al, G.R. No. 102404, Feb. 1, 2002).

Sec. 4. Withdrawal. — The cou rt may allow the


p a rt y m a k i n g a n a d m i s s i o n U N D E R t h i s R u l e ,
wh et h e r exp res s or i mp li ed, to wit h draw or amen d
i t upo n suc h t erm s as may be just. (4)

371
RUL E 2 6 R E M E D I A L LA W C O M P E N D I U M SE C . 5

Sec. 6. Effect of failure to file and serve request for


admission. — Un les s o t h e rw i s e allowe d by the cou rt
for good cau s e sh ow n and to p reven t a failu re of
j u st i ce , a party wh o fails to file and serve a req u es t
for a d m i s s i o n o n the a d v e r s e p art y o f m at e ri a l
and re levan t fact s at issu e wh i c h are, or ou gh t to
be, w i t h i n the p e rs o n a l k n o w l e d g e o f the lat t e r, sh a l
l no t b e p e r m i t t e d t o p r e s e n t e v i d e n c e o n suc h
fact s, (n)

NOT E

1. See the similar provision on unjust ified failure of


a part y to avail of wr it t en int errogat or ies as a mode of
discovery and the sanct ion therefor under Sec. 6 of Rule
25. The reaso n for t hese new provisions is explained in
the note t her eund er . In Sec. 6 of Rule 25, the sanct ion
consist s in allowing t he adver se part y to refuse to give
t est imony or make a deposit ion on appeal respect ing the
facts involved. Under t his section of the Rule on request
for admission, the part y who fails or refuses to request
the admissio n of the facts in quest ion is himself prevent ed
from t her e a ft e r pr e se nt i n g evidence t her eo n . In bot h
cases, the court shall det er mine on a case to case basis
whet he r or not the no n- availme nt of the two modes of
discovery was just ified or the negat ive sanct io ns will
unjust ly prejudice the err ing part y.

372
RULE 27

PRO DUCTIO N OR INS PECTION


OF DO CUM ENTS OR THINGS

S e c t i o n 1. Motion for production or inspection;


order. — Upo n mot i o n of an y party sh o w i n g good
cau s e t h e re f o r , the Cou rt i n wh i c h a n act i o n i s
p e n d i n g ma y (a) ord er an y party to p rod u c e and
p e r m i t the i n s p e c t i o n an d c o p y i n g o r p h o t o •
g ra p h i n g , b y o r o n b eh a l f o f the m o v i n g p art y ,
o f an y d e s i g n a t e d d o c u m e n t s , p a p e r s , b o o k s ,
ac cou n t s , let ters, p h ot og rap h s , ob ject s or t an gi b le
t h i n gs, not p ri vi leged , wh i c h con st i tut e or con t ai n
e v i d e n c e mat e ri a l t o an y mat t e r i n volve d i n the
act i o n an d wh i c h are i n hi s p o s s e s s i o n , cu st o d y
or control; or (b) order an y party to p ermit en t ry
u p o n d e s i g n a t e d land o r ot h e r p ro p e rt y i n hi s
p o ss e s si o n or con t ro l for the p u rp ose of in sp ect i n g ,
m e a s u r i n g , s u r v e y i n g , o r p h o t o g r a p h i n g the
p ro p e r t y o r an y d e s i g n a t e d r e l e v a n t ob j ec t o r
o p e ra t i o n t h e re o n . The ord e r sh al l sp eci f y the ti me,
p lace and man n er of maki n g the in sp e ct i o n an d
t a k i n g c o p i e s an d p h o t o g r a p h s , an d ma y p resc ri b e
suc h t erm s and c o n d i t i o n s a s are just, (la)

NOTES

1. . The p r o d u c t io n of do c u me nt s affords
more opport unit y for discovery t han a subpoena duces
tecum as, in the lat t er, the documents are brought to the
court for the first t ime on the dat e of the scheduled
t r ial wherein such document s are required to be
produced. The inspect ion of land and other real
propert y for the purposes aut horized by this Rule also
avoids the need for ocular inspection thereof by the court.

373
RUL E 27 R E M E D I A L LA W C O M P E N D I U M SE C . 1

2. . In cr imina l cases, mo t io ns for product io n


or inspect ion of document s are governed by Sec. 10,
Rule 116, and may be availed of only by t he accused
generally dur ing t he pendency of the case for trial.

3. This mode of discovery does not aut hor ize the


opposing part y or the clerk or ot her funct ionaries of the
court to dist rain the art icles or deprive the per son who
produced the same of t heir possession, even t emporar il y
(Tanda vs. Aldaya, 89 Phil. 497).

4. In motions for product ion of document s under this


Rule, it has been held t hat " a part y is ordinar ily ent it led
to the product ion of books, document s and papers which
are mat er ial and relevant to the est ablishme nt of his cause
of act ion or defense" [General Electric Co. vs. Superior
Court in and for Almeda County, 45 C 2d 879, cited in
Martin, Rules of Court, 3rd edition, Vol. 2, p. 104]. "The
t est to be applied by the t r ial judge in det er mining the
r e le va nc y of do c u me nt s an d the sufficiency of t he i r
descr ipt ion is one of r easo nableness and pract icabilit y"
[Line Corp. of the Philippines vs. Moran, 59 Phil. 176,
180). "On the ground of public policy, the rules providing
for product ion and inspect ion of books and paper s do not
a u t ho r iz e the pr o duct io n or inspect io n of pr ivi leg ed
mat t er, t hat is, books and papers which because of t heir
confident ial and privileged charact er could not be received
in evidence" [27 CJS 224]. "In passing on a motion for
discovery of do cument s, t he court should be liberal in
det er mining whet her or not document s are relevant to the
subject mat t er of the action" [Hercules Powder Co. vs. Haas
Co., U.S. Dist. Crt., Oct. 26, 1944; 9 Fed. Rules Service,
659, cited in Moran, Comments on the Rules of Court, 1979
Ed., Vol. 2, p. 102). Likewise, "any st at ut e declar ing in
general t er ms t hat official records are confident ial should
be liberally construed, to have an implied except ion for
disclosure when needed in a court of just ice" [Wigmore on
Evidence, Vol. VIII, p. 801, cit ing t he case oiMarbury vs.

374
RUL E 2 7 P R O D U C T I O N OR I N S P E C T I O N SE C . 1
OF DOCUM ENT S OR THING S

Madison, 1 Cr. 137, 143] (Banco Filipino vs. Monetary


Board, et al., G.R. No. 70054, July 8, 1986).
5. In an American case, it was held t hat the court
can compel the plaintiff, under this Rule, to consent to
the exhu mat io n of the body of the deceased in a case
involving the "accidental deat h" clause of an insurance
polic y (Zalatuka vs. Metropolitan Life Ins. Co.,
U.S.C.C.A., Dec. 22, 1939, 108 F. [2d] 405, 2 Fed. Rules
Service, p. 37).
It is believed t hat the aforest at ed ruling could be
applicable here in a civil case involving the same issue,
considering t hat Sec. 1 of t his Rule also speaks of "objects
or tangible t hings" which is broad enough to include a
cadaver. On the other hand, Rule 28 of the revised Rules
cannot be invoked for the same purpose as it cont emplat es
and is limited to physical and ment al examinat io n of a
living person. There would, however, be no problem if
the exhumat ion or postmortem examinat io n is involved in
and necessary for purposes of a criminal action.

6. Alt hough it is not among the modes of discovery,


but considering the similar it y of objectives sought to be
subserved, note should be t aken of the writ of search and
seizure aut horized for the protect ion of int ellect ual prop•
ert y. In a resolut ion in A.M. No. 02-1-06-SC, dated Janu•
ary 22, 2002, the Supreme Court approved the rule on
Search and Seizure in Civil Actions for Infr ingement of
Int ellect ual Propert y Rights (Appendix Z) which governs
this judicial process, effective February 15, 2002.

375
RULE 28

PHYSICAL AND MENTAL EXAMINATION


OF PERS O NS

S ect i o n 1. When examination may be ordered. — In


an act i o n in wh i c h the men t a l or p h ysi ca l c on d i t i o n
of a p art y i s in con t rov e rsy , the cou rt in wh i c h the
act i o n i s p e n d i n g ma y in its d i s c ret i o n ord er hi m to
su b mi t to a p h ysi ca l or men t a l e x a m i n a t i o n by a
p h y si ci a n . (1)

NO TES

1. The ment al condit ion of a part y is in controversy


in proceedings for guar dianship over an imbecile or insane
person, while the physical condit ion of a part y is generally
involved in physical injuries cases.

2. . A blood g r o u p i n g t es t ma y be o r d e r e d
an d conducted under t his Rule on a child subject of a
pat ernit y suit. While the Rule speaks of an examinat io n
of a part y, such child is considered a part y for purposes
thereof as the act ion is br ought for its benefit (Beach
vs. Beach, U.S.C.A., D.C., June 28, 1940, 3 Fed.
Rules Service,
p. 397).

3. . Since the result s of the examinat ion are


int ended to be mad e public, the sam e ar e not
covered by the phys ic ian- pat ient privilege.
Fur t her mo r e, such exami• nat ion is not necessary to
t reat or cure the pat ient but to assess the ext ent of injur y
or to evaluat e his physical or ment al condit ion.

Sec . 2. Order for examination. — The ord e r for


e xa m i n a t i o n ma y be mad e on ly on mot i o n for good
cau s e s h o w n an d u p o n n ot i c e t o the p art y t o b e
e xa m i n e d an d t o all ot he r p art i es, an d shall sp eci fy

376
RUL E 28 P H Y S I C A L AN D M E N T A L S E C S . 3- 4
E X AM I N A T I O N O F P E R S O N S

the time, place, man n er , con d it i on s and scop e of the


e xa m i n a t i o n and the p erson or p erson s by wh o m i t
is to be mad e. (2)

Sec. 3. Report of findings. — If req u e st e d by the


party exa mi n ed , the party cau si n g the exa m i n at i o n
to be mad e shall d eli ve r to hi m a copy of a d et ai led
wri t t en report of the e xa m i n i n g p h ys i ci a n set t i n g
ou t hi s f i n d i n g s an d c o n c l u s i o n s . Aft e r su c h
r e q u e s t an d d e l i v e r y , the p a rt y c a u s i n g the
e x a m i n a t i o n t o b e mad e sh al l b e e n t i t l e d up o n
req u e st to recei v e from the party exami n e d a like
report of any exa mi n at i on , p revi ou s ly or t h ereaft e r
made of the same men t a l or p h ysi cal con d i t i on . I f
the party exa mi n e d refu ses to d eli ver suc h report,
the cou rt on mot i o n and n ot i ce may make an order
req u i ri n g d eli ve ry on suc h t erms as are just, and i f
a p h ysi ci a n fails or re fu se s to make suc h a report
the cou rt may exclu d e his t est i mon y i f offered at
the trial. (3a)

Sec. 4. Waiver of privilege. — By re q u e s t i n g and


ob t ai n i n g a report of the exa mi n at i o n so ord ered
or by t aki n g the d ep o s i t i o n of the exa mi n e r , the
party exami n e d wai ve s any p ri vi lege he may have
i n t hat act i o n o r an y ot h e r i n v o l v i n g the sam e
c o n t r o v e r s y , r e g a r d i n g the t e s t i m o n y o f eve r y
oth er p erso n wh o ha s exami n e d or may t h ereaft er
e xa m i n e hi m i n re s p e c t o f the sam e m e n t a l o r
p h ysi cal e xa mi n at i o n . (4)

NOT E

1. Where the part y examined requests and obtains


a r epo r t on the r e s u lt s of the e x a m i n a t io n , the
consequences are t hat (a) he has to furnish the other part y
a copy of t he r epo r t of any pr evio us or su bs equ e n t

377
RUL E 28 R E M E D I A L LA W C O M P E N D I U M S E C S . 3- 4

examination of the same physical and mental condition,


and (b) he waives any privilege he may have in that action
or any other involving the same controversy regarding
the testimony of any other person who has so examined
him or may thereafter examine him. For the physician-
patient privilege, see Sec. 24(c), Rule 130 and Note 4
thereunder.

378
RULE 29

RE FUS A L TO COMP LY
WITH MODES OF DISCOVERY

S ect io n 1. Refusal to answer. — If a p ar t y or o t he r


d e p o n e n t r e fu se s t o a n s w e r an y q u e s t io n upo n or a l
e x a m i n a t i o n , t he e x a m i n a t i o n ma y b e co mp l e t e d o n
o t he r m a t t e r s o r a d j o u r n e d a s t he p r o p o n e n t o f t he
q u e s t i o n ma y p r e fe r . The p r o p o n e n t ma y t h e r e •
aft e r appl y t o t he p r o p e r Co ur t o f t he plac e w he r e
t he d e p o s i t i o n i s be i n g t a k e n for a n o r d e r t o co mpe l
a n a n s w e r . The sa m e p r o c e d u r e ma y b e ava i le d o f
whe n a p a r t y or a w it n e s s r e fus e s t o a n s w e r an y
i n t e r r o g a t o r y s u b m i t t e d U N D E R Rule s 2 3 o r 25.
I f t he a p p l i c a t i o n i s g r a n t e d , t he C o u r t sha l l
r e q u i r e t he r e fu s i n g p a r t y o r d e p o n e n t t o a n s w e r
t he q u e s t i o n o r i n t e r r o g a t o r y an d i f i t als o find s
t hat t he r efus a l t o a n s w e r wa s w it ho u t s u b s t a nt i a l
j u s t i f i c a t io n , i t ma y r e q u i r e t he r e fu s i n g p a r t y o r
d e p o n e n t o r t he c o u ns e l a d v i s i n g t he r e fu s a l , o r bot
h o f t he m , t o pa y t he p r o p o n e n t t he a m o u n t o f t he
r e a s o n a b l e e x p e n s e s i n c u r r e d i n o bt a i n i n g t he o r der ,
i n c l u d i n g a t t o r n e y' s fees.
I f t he a p p l i c a t io n i s de n ie d an d the Co ur t finds
t hat i t wa s filed w it ho u t s u b s t a n t i a l ju s t i f i c a t io n ,
the Co ur t ma y r e q u i r e t he p r o p o n e n t o r t he co u ns e l
a d v i s i n g t he filing o f t he a p p l i c a t i o n , o r bot h o f
t he m , t o pa y t o t he r e fu s i n g p ar t y o r d e p o n e n t t he
a m o u n t o f t he r e a s o n a b l e e x p e n s e s i n c u r r e d i n
o p p o s i n g t he a p p l i c a t i o n i n c l u d i n g a t t o r n e y ' s
fees, ( la )

Sec. 2. Contempt of court. — If a p ar t y or o t he r


w it ne s s r efuse s t o b e swo r n o r r efu s e s t o a n s w e r
an y q u e s t io n aft e r be in g d ir e c t e d t o d o s o b y t he

379
RUL E 29 REMEDIA L LA W C O M P E N D I U M SE C . 3

cou rt of the place in wh i c h the d e p o s i t i o n i s b ei n g


t aken , the refu sal ma y be con si d e re d a con t e mp t of
that court. (2a)

Sec. 3. Other consequences. — If an y p art y or an


officer or m a n a gi n g agen t of a p arty re fu s e s to obey
a n o rd e r m a d e U N D E R s e c t i o n 1 o f t h i s Ru l e
re q u i ri n g hi m t o an sw e r d e s i g n a t e d q u e s t i o n s , o r
an ord er UNDER Rule 27 to p rod u c e an y d o c u m e n
t o r o t h e r t h i n g fo r i n s p e c t i o n , c o p y i n g , o r
p h o t o g r a p h i n g o r t o p erm i t i t t o b e d on e , o r t o
p ermi t ent r y up o n land o r oth e r p rop e rt y , o r a n
ord er mad e UNDER Ru le 2 6 re q u i ri n g hi m t o sub mit
to a p h ysi ca l or men t a l e xa m i n a t i on , the Cou rt may
mak e su c h ord e r s i n regar d t o the re fu sa l a s are
just, an d amon g ot h er s the followi n g :
(a) A n ord er that the mat t er s re g a rd i n g wh i c h
the q u e s t i o n s w e r e a s k e d , o r the c h a r a c t e r o r
d e s c ri p t i o n of the t h i n g or land, or the c o n t e n t s of
the p ap er, or the p h ysi ca l or me n t a l c o n d i t i o n of
the p art y, o r an y oth e r d e s i g n a t e d fact s shal l b e
t ake n to be e s t a b l i s h e d for the p u rp o s e of the act i o n i
n a c c o r d a n c e wit h the c lai m o f the p art y o b t a i n i n g
the ord er;
(b) An ord e r re f u si n g to allo w the d i s ob e d i e n t
p art y t o s u p p o r t o r o p p o s e d e s i g n a t e d clai m s o r
d e f e n s e s o r p ro h i b i t i n g hi m from i n t r o d u c i n g i n
e v i d e n c e d e s i g n a t e d d o c u m e n t s o r t h i n g s o r i t em s
o f t e s t i m o n y , o r fro m i n t r o d u c i n g e v i d e n c e o f
p h ysi ca l o r men t a l con d i t i on ;
(c) A n ord e r s t ri k i n g ou t p l e a d i n g s o r p art s
t h ereo f, o r s t a y i n g fu rt h e r p r o c e e d i n g s u nti l the
o r d e r i s o b e y e d , o r d i s m i s s i n g t he a c t i o n o r
p r o c e e d i n g o r an y par t t h ereo f , o r r e n d e r i n g a
j u d g m e n t b y d efau l t agai n s t the d i s ob e d i e n t party;
an d

380
RUL E 29 R E F U S A L T O COMPL Y S E C S . 4- 6
WIT H M O D E S O F D I S C O VE R Y

(d) In lieu of an y of the foregoin g orders or in


ad d i t i on t h eret o , an order d i rect i n g the arrest of
any part y or agen t of a party for d i s o b ey i n g any of
such ord er s e xcep t an order to su b mit to a p h ysi cal
or men t a l e xa mi n at i on . (3a)

Sec. 4. Expenses on refusal to admit. — If a party


after b ei n g served wit h a req u es t und er Rule 26 to
admit the g e n u i n e n e s s of any d ocu men t or the truth
of an y mat t e r of fact, serves a sworn denial t h ereo f
an d i f the p a rt y r e q u e s t i n g the a d m i s s i o n s
t h e r e a f t e r p r o v e s the g e n u i n e n e s s o f su c h
d ocu m en t or the t rut h of any suc h matt er of fact,
he ma y ap p ly to the cou rt for an order req u i ri n g
the ot h e r party to pay hi m the reason ab le e xp e n s e s
i n cu rred in maki n g suc h proof, i n clu di n g attorney' s
fees. Un l es s the cou rt finds that t here wer e good
rea son s for the d en i a l or that a d m i s s i o n s sou gh t were
of no su b st ant i a l i mp ort an ce, suc h order shall be
i ssu ed . (4a)

Sec. 5. Failure of party to attend or serve answers.


— If a p art y or an offi cer or m a n a g i n g agen t of
a party wi llfu lly fails to ap p ear before the officer
wh o i s to tak e hi s d ep o si t i on , after b ein g served
with a p rop er n ot ice, or fails to serve an swe r s to
i n t e r r o g a t o r i e s s u b m i t t e d UNDER Rul e 25, after
proper se rvi c e of suc h i nt errogat o ri es , the cou rt on
mot ion and n oti ce, may stri ke out all or any part of
any p lead i n g of that party, or d i smi ss the action or
p ro ce ed i n g or any part thereof, or en ter a j u d gmen t
by defau lt again s t the party, and in its d i scret ion,
order hi m to pay rea son ab l e exp en s e s i n cu rred by
the other, i n c l u d i n g attorney' s fees. (5)

Sec. 6. Expenses against the Republic of the


Philippines. — Exp en se s and attorney' s fees are not

381
RUL E 29 R E M E D I A L LAW COMPENDIU M S E C S . 4- 6

to be i mp ose d upo n the Rep u b li c of the Ph i li p p i n e s


UNDER thi s Rule. (6)

NOT E S

1. Where the plaint iff failed to answer the wr it t en


int errogat or ies for unexplained reasons, dismissal of the
complaint is war r ant ed under Sec. 5, Rule 29 and such
omission may also be considered as failure to prosecute
the act ion (Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).

2. The former t it le of t his Rule which read "Refusal


to Make Discovery" has been changed in t his revision in
the int er est of accuracy.

382
RULE 30

TRIAL

S ect i o n 1. Notice of trial. — Upon ent ry of a case


i n the t ri al c a l e n d a r , the cler k sh al l n oti fy the
p art i es of the date of its trial in suc h man n er as shall
en su r e his recei p t of that n ot ice at least five
(5) day s before suc h date. (2a, R22)

NOTES

1. The words "trial" and "hearing" have different


mea ning s and co nno t at io ns. Trial may refer to the
recept ion of evidence and other processes. It embraces
the period for the int roduct ion of evidence by both part ies.
Hearing, as known in law, is not confined to trial but
embraces the several st ages of lit igat ion, including t he
pre-t ria l st age. A hear ing does not necessarily mean
present at ion of evidence. It does not necessarily imply
the pr e se nt at io n of oral or do cume nt ar y evidence in
open court but t hat the parties are afforded the opportunit y
to be hear d (Republic vs. Sandiganbayan, et al.,
G.R. No. 152154, Nov. 18, 2003).
2. As a mat t er of procedural due process, it is now
required t hat the part ies should receive notice of the trial
at least 5 days before the scheduled date. This is int ended
to avoid the usual misunder st andings and failure of the
part ies to appear for trial as the previous rule did not spell
out these mechanics of service.

Sec. 2. Adjournments and postponements. — A


court may ad jou rn a trial from day to day, and to
any st at ed time, as the exp e d i t i ou s and con v en i en t
t ran sact i on of b u si n es s may requi re, but shall have
no powe r to adj ou rn a trial for a longer period tha n

383
RUL E 30 R E M E D I A L LA W C O M P E N D I U M S E C S . 3- 4

on e m o n t h fo r e a c h a d j o u r n m e n t , no r mo r e
tha n th re e mon t h s i n all, excep t whe n au t h o ri ze d
i n w ri t i n g b y the Cou rt A d m i n i s t ra t o r , S u p re m e
Court. (3a, R22)

Sec. 3. Requisites of motion to postpone trial


for absence of evidence. — A m o t i o n to p o s t p o n e a
t ri a l o n the g ro u n d o f a b s e n c e o f e v i d e n c e ca n
b e g r a n t e d on l y u p o n a f f i d a v i t s h o w i n g the
m a t e ri a l i t y an d re l e v a n c y o f su c h e v i d e n c e , and
that du e d i l i g e n c e ha s bee n use d t o p rocu r e it. But
i f the ad ve rs e p art y ad mi t s the facts to be gi ve n in
e v i d e n c e , eve n i f h e obj ect s o r re s e rv e s the ri gh t t o
obj ect to t h ei r ad mi s si b i li t y , the t ri al sh all no t be
p o s t p on e d . (4a, R22) (As corrected by Resolution of the
Supreme Court, dated July 21, 1998)

Sec . 4. Requisites of motion to postpone trial for


illness of party or counsel. — A mot i o n to p ost p on e a
trial on the grou n d of i lln es s of a p art y or cou n s e l
ma y be gran t e d i f i t ap p ear s upo n affi davit or swor m
c e r t i f i c a t i o n th at the p r e s e n c e o f su c h p art y o r
c o u n s e l a t the trial i s i n d i s p e n s a b l e an d that the
c h a ra c t e r o f hi s i l ln e s s i s suc h a s t o ren d e r hi s non-
a t t e n d a n c e e xc u s a b l e . (5a, R22)

NOTE S

1. . P o s t p o n e m e n t s ar e a d d r e s s e d to the
soun d discret ion of the court and, in the absence of grave
abuse of discret ion, cannot be controlled by ma nda mu s
(Olsen vs. Fressel & Co., 37 Phil. 121).

2. The pro vis io ns of Sec. 3 of t hi s Rule are not


applicable to criminal cases as the rule on po st po nement s
in cr imina l cases is governed by Sec. 2, Rule 119 (People
vs. Catolico, L-31261-65, April 20, 1971).

384
RUL E 30 TRIA L SE C . 5

3. A mere medical certificate is generally insufficient.


It must be under oat h or in the form of an affidavit.
However, i t has been held t hat even if the mot ion to
postpone on account of illness was not accompanied by a
medical cert ificate, since not every ailment is att ended to
by a physician and the required medical certificate under
oath could not be obtained wit hin a limited t ime, such
r equir eme nt may be dispensed wit h in the int er est of
just ice (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983).

Sec. 5. Order of trial. — S u b j e c t to the pro •


vi si on s of sect i o n 2 of Rule 31 , and unle s s the cou rt
for sp eci a l rea son s ot h e rwi s e di rect s, the trial shall
be li mit ed to the i ssu e s stat ed in the pre-trial order
and shall p roceed as follows:
(a) The p l a i n t i f f sh al l a d d u c e e v i d e n c e i n
su p p ort of his comp laint ;
(b) The d e f en d an t shall the n ad du c e eviden c e
in su p p ort of hi s d efen se, cou n t erclai m, cross- clai m
and t hi rd -p arty comp laint ;
(c) The t h i rd - p a rt y d e f e n d a n t , i f any, shal l
a d d u c e e v i d e n c e o f hi s d e f e n s e , c o u n t e r c l a i m ,
cross- clai m and fou rth- part y comp lain t;
(d) The fou rt h- part y, and so forth, if any, shall
ad d u c e evi d en c e of the mat eri al facts p lead ed by
them;
(e) The p a rt i e s a g a i n s t wh o m an y cou n t e r •
clai m or cross- clai m ha s been p lead ed, shall ad du c e
evi d en c e in su p p ort of their d efen se, in the order to
be p rescri b ed by the court;
(f) The p a rt i e s may the n resp ect i ve ly ad d u ce
r e b u t t i n g e v i d e n c e on ly , u n l e s s the cou rt , for
good re a s o n s an d i n the f u rt h e ra n c e o f j u st i c e ,
p e r m i t s t h e m t o a d d u c e e v i d e n c e u p o n t h ei r
original case; and

385
RUL E 30 R E M E D I A L LA W C O M P E N D I U M SE C . 5

(g) Upo n ad m i s s i o n of the e vi d e n c e , the case


shall be d ee m e d su b m i t t e d for d ec i si on , u n l e s s the
cou rt d i rect s the p art i es t o argu e o r t o su b mi t th ei r
re sp e ct i v e m e m o ra n d a o r an y fu rt her p le ad i n g s .
If severa l d efen d an t s or third-party d efen d an t s,
and so forth, h a vi n g sep a rat e d e f e n s e s ap p ea r by
d i f f e re n t co u n s e l , the Cou rt sh al l d e t e r m i n e the
re lat i ve ord er of p re s en t at i o n of t h ei r evi d en ce , (la ,
R30)

NOT E S

1. . U nd e r s c o r i n g the i m p o r t a nc e of a pr e -
t r ia l conference and the proceeding conducted t herein,
this a me nded sect ion addit io nally provides t hat , unless
the court specifically directs, the t rial shall be limit ed to
the issues st at ed in the pre-t r ial order.

2. Par. (g) declares, for purposes of fixing the date


of s u b m i s s io n of the case for decis io n vis - a- vis the
co nst it ut io nal period for deciding t he same, t hat i t shall
be upon the admiss io n of t he evidence of t he part ies.
Ho wever , i f t he t r ia l co urt allows oral a r g u m e n t or
s u b m i s s i o n o f m e m o r a n d a , t he per io d s ha l l b e
co rr espo nding ly ext ended after such proceedings have
been conduct ed or such me mo r a nd a subm it t ed. Since
t her e is a possibilit y t hat the me mo r a n d a may not be
received in the court s imu lt aneo usly, the court should
specify in advance or declare after act ual submission of
the me mo r and a or furt her pleadings the dat e when the
case is deemed submit t ed for decision.

3. The order of t rial provided for in Sec. 5 applies


to a regularly cont rovert ed claim. Hence, if the answer
ad m it s t he d e fe nd a nt ' s o bligat io n a s a lleged i n the
co mp la int bu t special de fenses are invoked, plaint iff
does not have to present evidence since judicial admissions
do not require proof (Sec. 2, Rule 129), and it should be

386
RUL E 30 TRIAL SEC . 6

the defendant who should forthwit h pr esent his evidence


in support of his special defenses (Yu vs. Mapayo, L-29742,
Mar. 29, 1972).

4. Addit ional evidence may be offered at the rebutt al


st age if it was newly discovered, or omit t ed t hr o ugh
mist ake or inadvert ence, or where the purpose is to correct
evidence previously offered (Lopez vs. Liboro, 81 Phil.
429), subject to the discret ion of the court.

5. A r elat ed rule in Amer ican jur is pr udence on


evidence at the rebutt al stage was adopted by the Supreme
Court in a cr imina l case (People vs. Mazo, G.R. No.
136869, Oct. 17, 2001) which could very well apply in all
ot her cases. The holding is t hat evidence offered in
rebutt al is not automat ically excluded just because it would
have been more properly admit t ed in the case in chief.
W h e t he r evid e nc e could hav e been more pr o p er l y
admit t ed in the case in chief is not a test of admissibilit y
of evidence in rebut t al. Thus, the fact that t est imony
might have been useful and usable in the case in chief
does not necessarily preclude its use in rebutt al.

Sec. 6. Agreed statement of facts. — The part ies


to any act ion ma y agree, in wri ti ng, upon the facts
i n volved in the li ti gat ion, and submi t the case for
j u d g m e n t o n the fact s agree d up on , wi t h ou t the
i n t rod u ct i on of evi d en c e .
If the part i es agree only on some of the facts
in i ssu e, the trial shall be held as to the d i sp u t ed
fact s in suc h ord er as the cou rt shall p resc ri b e.
(2a, R30)
NOTES

1. This is known as a st ipulat io n of facts and is


among the purposes of a pre-trial in civil cases (Sec. 2[d],
Rule 18). The part ies may also st ipulate verbally in open

387
RUL E 30 R E M E D I A L LA W C O M P E N D I U M S E C S . 7, 8

co urt . Suc h s t ip u l a t io n s ar e bind i n g unles s relie f


therefrom is per mit t ed by the court on good cause shown,
such as error or fraud (Ortua vs. Rodriguez, 63 Phil. 809).
But counsel cannot st ipulat e on wha t t heir respect ive
evidence consist s of and ask t hat judgme nt be rendered
on the basis of such st ipulat io n (Arzadon vs. Arzadon, 15
Phil. 77).
2. . S t i p u l a t i o n s of fact s ar e no t p e r m i t t e d
in act ions for annu l me nt of marr iage (Art. 88, Civil
Code; now, Art. 48 Family Code) an d for lega l
s e p a r at io n (Art. 101, Civil Code; now, Art. 60,
Family Code). Former ly, in cr iminal cases, st ipulat io ns of
facts were not per mit t ed (U.S. vs. Donato, 9 Phil. 701;
People vs. Ordonio, [CA], 67 O.G. 4224). See, however,
Rule 118 which now per mit s such st ipu la t io ns at the pre-
t rial conference.

Sec. 7. Statement of judge. — Du ri n g the h ea ri n g or


trial of a cas e an y s t a t e m e n t mad e by the j ud g e wit h
re f e re n c e t o the case , o r t o an y o f the p art i es, w i t n e s s e
s o r cou n s e l , shall b e mad e o f record in the
s t e n o g ra p h i c n ot es . (3a, R30)

NOT E

1. This provisio n differs so mew ha t from t hat of


Sec. 17, Rule 136, the last p ar agr ap h whereof reads as
follows:
"Whenever requested by a party, any statement made
by a judge of first instance, or by a commissioner, wit h
reference to a case being tried by him, or to any of the
part ies t heret o, or to any wit ness or attorne y, dur ing the
hear in g of such case, shall be mad e of record in t he
st eno gr aphic notes."

Sec. 8. Suspension of actions. — The s u s p e n s i o n of


a c t i o n s shal l be g o v e rn e d by the p ro v i s i o n s of the
Civil Code, (n)
388
RUL E 30 TRIAL SEC . 9

NOTES

1. Rule 21 of the former Rules, providing for the


suspension of action, has been eliminat ed in these revised
Rules and, instead, t hese provisions of the Civil Code have
been adopted for t hat purpose:
"Art. 2030. Every civil action or proceeding shall
be suspended:
(1) If willingness to discuss a possible compromise
is expressed by one or both part ies; or
(2) If it appears t hat one of the part ies, before
the commencement of the action or proceeding, offered
to discuss a possible compromise but the other part y
refused the offer.
The durat io n and t erms of the suspension of the
civil act ion or proceeding and similar mat t er s shall
be governed by such provisions of the rules of court
as the Supr eme Court shall pro mulgat e. Said rules
of court shall likewise provide for the appoint ment
and dut ies of amicable compounders."

Sec. 9. Judge to receive evidence; delegation to clerk


of court. — The j ud g e of the court wh er e the case is
p en d i n g shall p e rson a l ly recei ve the e vi d en c e to be
ad d u ce d by the part ies. H owever , in d efau lt s or
ex parte h ea ri n gs , and in any case wh er e the p art i es
a g re e i n w r i t i n g , the C ou rt ma y d e l e g a t e the
re cep t i on of evi d en c e to its clerk of cou rt wh o is a
me mb e r of the bar. The clerk of court shall have
no p owe r to rule on obj ecti on s to any q u est i o n or
to the ad mi s si o n of exh ibi t s, whi c h ob ject ion s shall
be resolve d by the cou rt upo n su b mi s si o n of his
report and the t ran scrip t s wit hi n ten (10) days from
t ermi n at i on of the h earin g, (n)

389
RUL E 30 R E M E D I A L LAW COMPENDIU M SE C . 0

NOT E S

1. Under the 1964 Rules, where the defendant is in


default, some court s referred the mat t er of the recept ion of
the evidence for the plaint iff to a commissioner, usually t he
clerk of court or his deput y. In Laluan, et al. vs. Malpaya, et
al. (L-21231, July 30, 1975), it was held that the clerk of
court may be aut horized to receive evidence subject to the
condit ion t hat if such proceedings and the decision t her eo n
prejudice the subst ant ia l r ight s of the aggrieved part y, the
lat t er should be given an opport unit y to t hresh out his case
in court. However, the S upr eme Court subs eque nt ly ruled
such pract ice as wrong and wit hout basis in any rule, and
has required t hat , where the defendant had been declared
in default, the trial judge himself should t ake down the
evidence (Lim Tanhu vs. Ramolete, et al., L-40098, Aug. 29, 1975).
However, in Continental Bank vs. Tiangco, et al. (G.R. No.
50480, Dec. 14, 1979), it was held t hat the ju dg me nt based
on e v id e nc e r ec e ive d b y t he d e p ut y c ler k o f Co urt a s
co mm is s io ner i s valid wher e i t wa s not impa ir e d by
ext rinsic fraud or lack of due process and the judgment
debt o r s had made par t ia l pa yme n t to satisfy it. The
Laluan case was advert ed to and the doctrine t herein was
r eit er at ed in National Housing Authority vs. CA, et al. (L-
50877, April 28, 1983), wherein the part ies had agreed to
the appo int ment of a commissioner, and in Gochangco, et
al. vs. CFIofNegros Occ, et al. (L-49396, Jan . 15, 1988).

2. The pr e se n t provisio n is int e nde d to effect a


r appr o che me nt bet ween the conflict ing pract ices, having
in mind the need to relieve the judge of some of his judicia l
funct ions whene ver the same can be safely e nt r ust ed to a
responsible officer and wit h the necessary safeguards for
the int er est s of the par t ies. The basic rule, of course,
r ema ins t hat the judge must himself personally receive
and resolve the evidence of t he part ies.

390
RUL E SO TRIA L SE C . 9

However, the recept ion of such evidence may be


delegat ed under the following condit ions, viz.: (a) The
delegat io n may be made only in default or ex parte
hear ings, or on agr e e me n t in wr it ing by the par t ies ;
(b) The recept ion of evidence shall be made only by t he
clerk of t hat court who is a member of the bar; (c) Said
clerk shall have no power to rule on object ions to any
quest ion or to the admission of evidence or exhibits; and
(d) He shall submit his report and t r anscr i pt s of the
proceedings, toget her with t he objections to be resolved
by the court, wit hin 10 days from the t erminat io n of the
hear ing.

391
RULE 31

CO NS O LIDAT IO N OR S EVERANCE

S e c t i o n 1 . Consolidation. — W h e n a c t i o n s
i n v o l v i n g a c o m m o n q u e s t i o n of law or fact are
p e n d i n g b ef o r e the c ou rt , i t ma y ord e r a j oi n t
h e a ri n g or trial of an y or all the mat t e r s in i ssu e in
the a c t i o n s ; i t ma y o rd e r al l the a c t i o n s con •
soli d at ed ; an d i t ma y mak e suc h ord er s c o n c e rn i n g
p r o c e e d i n g s t h e r e i n a s ma y t e n d t o a v o i d
u n n e c e s s a r y cost s or d elay. (1)

NO TES

1. The objects of consolidat ion, or the rat ionale of a


jo in t h e a r i n g a u t ho r i z e d b y Rule 31 , ar e t o avo id
mult iplicit y of suit s, guard against oppression or abuse,
pr event delay, clear congested dockets, simplify the work
of the t rial court and save unnecessar y costs and expenses.
Consolidat ion seeks to att ain justice wit h the least expense
and vexat ion to the lit igant s. The pr esent t endency is to
per mit consolidat ion whenever possible and irrespect ive
of the d ive r s it y of the is sue s invo lved (Palanca vs. Querubin,
et al., L-29510-31, Nov. 29, 1969; Raymundo, et al. vs.
Felipe, L-30887, Dec. 24, 1971).

2. . The rule on co nso lidat io n of cases


gener a l l y applies only to cases pending before the same
judge, not to cases pending in different br anches of the
same court or in different court s (PAL, et al. vs.
Teodoro, et al., 97 Phil. 461), and also applies to
special pro ceedings (Salazar vs. CFI of Laguna,
infra); bu t w h e n e v e r appropr iat e, and in the int er est of
just ice, consolidat ion of cases in different branches of the
same court or in different court s can be effected.
Consolidat ion of cases on appeal and assigned to
different divisions of the S upr eme Court or the Court of
Appeals is also aut horized, and generally

392
RUL E 31 C O N SO L I D AT IO N O R SEVERANC E SE C . 1

the case which was appealed later and bearing the higher
docket number is consolidated with the case having t he
lower docket number.

3. As a rule, the conso lidat ion of sever al cases


i nvo lv i n g the sa m e p a r t ie s an d s u b j e c t - m a t t e r i s
discret ionary wit h the trial court. However, consolidation
of t hese cases becomes a mat t er of dut y if two or more
cases are tried before the same judge, or, if filed wit h
different branches of the same Court of First Inst ance,
one of such cases has not been part ially tried (Raymundo,
et al. vs. Felipe, supra). Subject to the qualificat ion in
the latter case, it would seem t hat the former doctrine t hat
there is no time beyond which no consolidation of cases
can be effected is st ill valid (see Sideco vs. Paredes,
74 Phil. 6).

4. The t hree ways of consolidat ing cases are (a) by


recast ing the cases already inst it uted, conducting only one
h e a r i n g an d r e n d e r i n g only one d ec is io n, (b) by
conso lidat ing the exist ing cases and holding only one
hear ing and r e nder in g only one decision, and (c) by
hear in g only t he pr inc ipa l case and s uspe nd in g t he
hear ing on the ot hers unt il judgment has been rendered
in t he principal case (Salazar vs. CFI of Laguna, et al.,
64 Phil.785).
5. Cases can be consolidated for purposes of a single
appeal therefrom and a single decision can be rendered
t hereon (Sideco vs. Paredes, supra).
6. On considerat ions of judicial economy and for the
convenience of the part ies, the Supreme Court can also
order the consolidation of cases involving substant ially the
same part ies and issues but which have been filed in
different courts of equal jur isdict ion. Thus, where as a
consequence of a vehicular collision, a bus company filed
an action for damages against the other bus company in
the proper court in Quezon and the heirs of the deceased

393
RUL E 31 R E M E D I A L LAW COMPENDIU M SE C . 2

passenger of one of the buses filed an action for damages


aga ins t bot h co mpanies in Cavit e wher e in said heirs
wer e r e s i d e n t s , the S u p r e m e C o u r t o r d e r e d the
consolidat ion of both cases in t he Cavite court, inst ead of
requir ing said heirs to int ervene in the case in Quezon
(Superlines Trans. Co. vs. Victor, et al., G.R. No. 64250,
Sept. 30, 1983).

Under the same considerat ion, the same procedure


was followed wher e, as a consequence of a vehicu lar
collision, the passenger s of the bus brought an action in
the t he n Court of Fir st Inst ance of Agusan del Sur on
culpa contractual, and t he owner of the other vehicle sued
the bus company in Misamis Orient al. The Supreme Court
ordered the consolidat ion of both cases in the court of
Agusan del Sur, upon the furt her considerat ion t hat the
case filed t her ein had already been pending prior to the
ot her action (Vallacar Transit, Inc., et al. vs. Yap, et al.,
G.R. No. 61308, Dec. 29, 1983).

Sec. 2. Separate trials. — The c o u r t , in


f u rt h e ra n c e o f c o n v e n i e n c e o r t o avoi d p rej u d i ce,
ma y ord e r a sep arat e trial of an y claim, cross- c lai m,
c o u n t e rc l a i m , or t h i rd - p a rt y co mp l a i n t , or of an y
se p a rat e i ssu e o r o f an y n u mb e r o f clai ms , c ros s -
c l a i m s , c o u n t e r c l a i m s , t h i rd - p a rt y c o m p l a i n t s o r
i ssu es . (2a)

NO TES

1. When separ at e trial of claims is conducted by the


court under this sect ion, i t may render separat e judgment s
on each claim (see Sec. 5, Rule 36).
2 . T hi s p r o vis io n p e r m i t t i n g s e p a r a t e t r ia l s
p r e s u p po s e s t hat the c laims involved ar e wit hin t he
jur isdict io n of the court. When one of the claims is not
wit hin its jur isdict io n, the same should be dismissed, so
t hat it may be filed in the proper court.

394
RULE 32

TRIAL BY COMMISS IONER

S e c t i o n 1. Reference by consent. — By w ri t t e n
con sen t of both p art i es, the cou rt may order an y or
all of the i s s u e s in a cas e to be r e f e r r e d to a
co m mi s s i on e r to be agreed upo n by the p a rt i es or
to be ap p o i n t e d by the cou rt. As use d in t h es e
Rules, the word " com mi ssi on e r" i n c lu d es a refe ree,
an aud i t or and an exami n e r, (la , R33)

Sec. 2. Reference ordered on motion. — When the


p art i e s d o no t con s en t , the cou rt may, upo n the
ap p li cat i on of ei t h e r or of its ow n moti on, direct a
re fe ren ce to a com mi s s i on e r in the followi ng cases:
(a) When the trial of an issue of fact req u i re s
the e xa mi n at i o n of a long accoun t on eit h er side,
in wh i c h case the com m i s si o n e r may be di rect ed to
hear and report upon the whole i ssue or any speci fic
q u est i o n in volved t h erei n ;
(b) When the t akin g of an accoun t i s n ec es sa r y
for the i n formati on of the court before j u d g m en t ,
or for carryi n g a j u d gmen t or order into effect;
(c) When a q u est i o n of fact, other tha n upon
the p l ead i n gs , ari ses upon mot ion or ot h erwi se, in
any stage of a case, or for carryi n g a j ud gmen t or
order into effect. (2a, R33)

Sec. 3. Order of reference; powers of the commissioner.


— Wh e n a r e f e r e n c e i s m a d e , the cl e r k s h a l l
fort h wi th fu rni sh the commi s si on e r with a copy of
the order of referen ce. The order may specify or
limit the powers of the commi ssi oner, and may direct
him to report only upo n particu lar i s su es, or to do
or perform p art icu lar acts, or to recei ve and report

395
RUL E 32 R E M E D I A L LAW COMPENDIU M SE C . 4

evi d en c e on ly, and ma y fix the dat e for b e g i n n i n g


and clo si n g the h ea ri n g s and for the filin g of his
report. Sub ject to the sp eci fi cat i on s and li mi t at i on s
st at ed in the order, the c o m m i s s i o n e r ha s an d shall
exe rci s e the p owe r t o regu lat e the p ro c e e d i n g s i n
ever y h e a ri n g before hi m and t o d o all act s an d take
all m e a s u re s n e c e s s a r y or p rop e r for the effi ci en t
p e rf o rm an c e of hi s d u ti e s UNDER the order. He ma y
i ssu e s u b p o en a s and s u b p o en a s duces tecum, swea r
w i t n e s s e s , an d u n l e s s o t h e r w i s e p r o v i d e d i n the
o r d e r o f r e f e r e n c e , h e ma y ru l e u p o n the
a d m i s s i b i l i t y o f e v i d e n c e . The t ri a l o r h e a ri n g
before hi m shall p rocee d in all re sp ec t s as i t wou l d
i f hel d before the cou rt. (3a, R33)

NO TES

1. . I n the p r o c e e d i n g s U N D E R t hi s sect io n
, the commissioner may rule upon the admissibilit y of
evidence, unless ot herwise provided in the order of
reference. In r ecept io n of evidence before the clerk of
court UNDE R the provisions of Sec. 9, Rule 30, the
clerk does not have t hat power and he shall just receive
the evidence subject to the object ions int erposed t her eto
and such quest ions or object ions shall be resolved by t he
court after the clerk has submit t ed his report to it.
2. What Sec. 3 aut horizes to be limited is the scope
of the pro ceeding s before the co mm is s io ner , not t he
modalit y thereof. The order of reference may direct the
commissioner to perform different acts in and for purposes
of the proceed ings but, what ever may be the case, the
r equir eme nt for him to hold a hear ing cannot be dispensed
wit h as t his is the essence of due process (Aljem's Corp.,
etc. vs. CA, et al., G.R. No. 122216, Mar. 28, 2001).

Sec. 4. Oath of commissioner. — B efore en t e ri n g


u po n hi s d u t i e s the c o m m i s s i o n e r sh al l b e swor n

396
RUL E 32 TRI AL BY COM M ISSIONE R S E C S . 5- 9

t o a f a i t h f u l an d h o n e s t p e r f o r m a n c e t h e re o f .
(14, R33)

Sec. 5. Proceedings before commissioner. — Upon


r e c e i p t o f the o rd e r o f r e f e r e n c e an d u n l e s s
ot h e rw i s e p rovi d ed t h erei n , the co m mi s si on e r shall
fort h wi th set a time and place for the first m eet i n g
of the p art i es or t hei r cou n se l to be held wi t h i n ten
(10) day s after the date of the order of referen ce and
shall notify the p art i es or th ei r cou n sel. (5a, R33)

Sec. 6. Failure of parties to appear before


commissioner. — If a party fails to ap p ear at the time
and place ap p oi n t ed , the com mi s si on e r may p roceed
ex parte or , in hi s d i s c r e t i o n , a d j o u r n the
p ro c e e d i n g s to a future day, gi vin g n ot i ce to the
ab sen t p art y o r hi s c o u n s e l o f the ad j ou rn m en t .
(6a, R33)

Sec. 7. Refusal of witness. — The refu s a l of a


w i t n e s s t o ob e y a s u b p o e n a i s s u e d b y the
co m mi s s i on e r or to give evi d en c e before him, shall
be d eeme d a con t emp t of the court wh i c h ap p oi nt ed
the c o m mi s si o n e r . (7a, R33)

Sec. 8. Commissioner shall avoid delays. — It is


the duty of the com m i ss i on e r to p roceed with all
re a son ab l e d i l i g en ce . Ei th er party, on noti ce to
the p a rt i e s and c o m m i s s i o n e r , ma y app ly t o the
cou rt for an order req u i ri n g the co mmi ssi on e r to
exp ed i t e the p ro c ee d i n g s and to make his report.
(8a, R33)

Sec. 9. Report of commissioner. — Up o n the


co mp l et i o n of the trial or h eari n g or p roc e ed i n g
before the co mmi ssi on e r, he shall file with the court
his report in wri t i n g upo n the matt ers su b mitt ed to

397
RUL E 32 R E M E D I A L LA W COMPENDIU M S E C S . 1 0 -1 3

hi m by the ord er of refe ren ce. Whe n hi s p ower s


are not sp eci fi ed or li mi t ed , he shall set forth his
fi n d i n gs of fact an d c o n c l u s i o n s of law in his report.
H e sh al l a t t a c h t h e r e t o all e x h i b i t s , a ff i d a v i t s ,
d e p o s i t i o n s , p ap er s and the t ran sc ri p t , i f any, of the
t est i mon i al e vi d en c e p res en t ed before him. (9a, R33)

Sec. 10. Notice to parties of the filing of report. —


Upo n the fi ling of the rep ort, the p art i e s shall be
n ot i fi ed by the clerk, an d the y shall be al lo w e d ten
(10 ) d a y s w i t h i n w h i c h t o s i g n i f y g r o u n d s o f
ob j e ct i o n to the fi n d i n g s of the rep o rt , i f th e y so
d esi re. Ob ject ion s to the report based upo n grou nd s
w h i c h we r e a v a i l a b l e t o the p a rt i e s d u r i n g the
p ro c e e d i n g s b efore the c o m m i s s i o n e r , ot h e r tha n
ob j e ct i on s t o the fi n d i n g s an d c o n c l u s i o n s t h e re i n
set forth, shall not be c o n s i d e re d by the Cou rt un les s
the y wer e mad e before the c o m m i s s i o n e r . (10, R33)

Sec . 11. Hearing upon report. — U p o n the e xp i ra t i o


n o f the p eri o d o f t e n (10) day s ref erred t o in the
p re c e d i n g sect i on , the rep o r t sh all be se t for h ea ri n g ,
after w h i c h the Cou rt shal l i ssu e a n ord er a d o p t i n g ,
m o d i f y i n g , o r r e j e c t i n g the re p o r t i n w h o l e o r i n
p a rt , o r r e c o m m i t t i n g i t w i t h i n s t r u c t i o n s , o r
r e q u i r i n g the p a rt i e s t o p re s e n t fu rt h e r e v i d e n c e
b efore the c o m m i s s i o n e r o r the cou rt. (11a, R33)

Sec. 12. Stipulations as to findings. — Whe n the


p art i e s s t i p u l a t e that a co m m i s s i o n e r' s fi n d i n g s of
fac t sh a l l b e fi n al , on l y q u e s t i o n s o f la w sh a l l
t h e re a ft e r be c o n s i d e re d . (12a, R33)

Sec . 13. Compensation of commissioner. — The


C o u rt s h a l l a l l o w the c o m m i s s i o n e r s u c h
re a s o n a b l e c o m p e n s a t i o n a s the c i r c u m s t a n c e s o f

398
RUL E 32 TRIAL B Y COM M I SSI ONE R SEC . 13

the case warran t, to be t axed as costs agai n s t the


d efeat ed party, or ap p ort i on ed , as j u st i ce req ui res.
(13, R33)

NOTE S

1. When the commissioner did not hold a hearing


in violat ion of Sec. 3 of this Rule, it is error for the trial
court to issue an order approving said commissioner's report
over the objection of the aggrieved part y (Jaca vs. Davao
Lumber Co., et al, L-25771, Mar. 29, 1982).

2. . It should also be noted, in passing, t hat


the former Rule 32 which provided for trial with assessors
has not been reproduced in the present revision of the
Rules.

399
RULE 33

DEM URRER TO EVIDENCE

Sec. 1. Demurrer to evidence.—After the plaintiff


ha s c o m p l e t e d the p re s e n t a t i o n o f hi s e v i d e n c e , the
d e f e n d a n t ma y mov e for d i s mi s s a l o n the grou n d
that u p o n the fact s an d the law the p la i n t i ff ha s s h o w
n no ri ght to relief. I f hi s mot i o n i s den i ed , he sh al l
h av e the ri gh t t o p re s e n t e v i d e n c e . I f hi s m o t i o n i s
g r a n t e d bu t o n a p p e a l the o rd e r o f d i s m i s s a l i s
re ve rs e d h e shal l b e d e e m e d t o hav e wa i v e d the
ri ght t o p re se n t ev i d en c e , ( la , R35)

NO TES

1. A de mur r e r to evidence is a mot ion to dismiss on


the ground of insufficiency of evidence and is present ed
after the plaint iff r est s his case. It t hu s differs from a
mot ion to dismiss under Rule 16 which is grounded on
preliminar y object ions and is pr esent ed at the out set of
the case, i.e., generally, before a responsive pleading is
filed by t he mo vant and wit hin the per iod for the filing
thereof. See Note 1 under Sec. 1, Rule 16.

2. . In t he l a n g u a g e of t he S u p r e m e Co ur t , a
d e mu r r e r to evidence may be issued wher e, upon the
facts and the law, the plaint iff has shown no right to relief.
Whe r e t he p l a i n t i f f s e vid e nc e t o g e t h e r wit h suc h
inferences and conclusions as may reasonably be drawn
t h e r e f