PROVISIONAL REMEDIES

AND SPECIAL CIVIL ACTIONS

Outline
Justice Magdangal M. de Leon
PROVISIONAL REMEDIES
PROVISIONAL REMEDIES UNDER THE RULES OF COURT:
a.     Attachment (Rule 57)
b.     Preliminary Injunction (Rule 58)
c.      Receivership (Rule 59)
d.     Replevin or delivery of private property (Rule 60)
e.     Support Pendente Lite (Rule 61)
f.       Criminal Cases (Rule 127 – in connection with the civil action deemed
instituted with the criminal action)
OTHER PROVISIONAL REMEDIES
a.     Temporary Protection Order [TPO] (RA 9262, Anti-Violence Against Women
and their Children; Rule on the Writ of Amparo)
b.     Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo)
c.      Inspection Order [IO] (AM 07-9-12, Rule on the Writ of Amparo)
d.     Production Order [PO] (AM 07-9-12, Rule on the Writ of Amparo)
e.     Administration of Common Property (AM 02-11-12,  Rule on Provisional
Orders)
f.       Inspection, Examination of Accounts and Freeze Order (RA 9372, Human
Security Act)
g.     Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money
Laundering Act)
h.     Seizure and Sequestration of Accounts and Assets (RA 9372, Human
Security Act)
i.       Restriction of Travel (RA 9372,  Human Security Act)
j.       Stay Order ( AM 00-8-10, Rules of Procedure on Corporate Rehabilitation)
k.      Hold Departure Order (Criminal cases under Circular 39-97 and Family
cases under AM 02-11-12)
l.       Temporary visitation rights  (AM 02-11-12, Rule on Provisional Orders )
m.    Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary Commitment
of Children)
n.     Temporary Custody of Child (AM 02-1-19 and AM 02-11-12)
o.     Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders)
COMMON REQUIREMENTS
 a. Affidavits are required to support the issuance of these remedies, except
injunction and receivership.
 b. A bond is also required to answer for damages by reason of the improvident
issuance of the writ. Exceptions:  temporary restraining order, support pendente
lite, inspection of accounts and freeze order (Human Security Act), inspection
and production orders (rule on the writ of amparo), seizure and sequestration of
accounts and assets (Human Security Act), restriction of travel (Human Security
Act) and hold departure order (Circular 39-97 and AM 02-11-12). Recovery of
damages from the bond is governed by Rule 57, Section 20.

PRELIMINARY ATTACHMENT -  Rule 57

DEFINITION AND NATURE

1. The provisional remedy of preliminary attachment is harsh and rigorous for it
exposes the debtor to humiliation and annoyance. The rules governing its
issuance are, therefore,strictly construed against the applicant (Wee
vs. Tankiansee, G.R. No.171124, February 13, 2008). If the requisites for its
grant are not shown to be all present, the court shall refrain from issuing it, for,
otherwise, the court which issues it acts in excess of its jurisdiction
(See Philippine Bank of Communications v. Court of Appeals, G.R. No.
115678,February 23, 2001, 352 SCRA 616). Likewise, the writ should not be
abused to cause unnecessary prejudice. If it is wrongfully issued on the basis of
false or insufficient allegations, it should at once be corrected (Wee vs.
Tankiansee, supra, citing Benitez v. Intermediate Appellate Court, No. L-71535,
September 15, 1987, 154 SCRA 41, 46).
2.  Attachment is a proceeding in rem. It is against the particular property,
enforceable against the whole world. The attaching creditor acquires a specific
lien on the attached property which ripens into a judgment against the res when
the order of sale is made. It in effect means that the property attached is an
indebted thing and a virtual condemnation of it to pay the owner's debt (Biñan
Steel Corporation vs. Court of Appeals, October 15, 2002,391 SCRA 90).
.
Sufficiency of grounds to sustain an attachment: fraudulent intent cannot
be inferred from a debtor’s inability to pay or comply with obligations
      We find an absence of factual allegations as to how the fraud alleged by
petitioner was committed.  As correctly held by respondent Court of Appeals,
such fraudulent intent not to honor the admitted obligation cannot be inferred
from the debtor’s inability to pay or to comply with the obligations  (PCL
Industries Manufacturing Corporation vs. CA, G.R. No. 147970, March 31,
2006, 486 SCRA 214, citing Philippine National Construction Corporation v.
Dy, G.R. No. 156887, October 3, 2005).
Property to be attached only so much as to satisfy demand
       The sheriff is required to attach only so much of the property of the party
against whom the order is issued as may be sufficient to satisfy the applicant’s
demand, the amount of which is stated in the order, unless a deposit is made or
a counter bond is given equal to said amount.  However, if the value of the
property to be attached is less than the amount of the demand, the amount of the
applicant’s bond may be equal to the value of said property, and the amount of
the adverse party’s deposit or counter bond may be equal to the applicant’s
bond.  The writ of preliminary attachment is issued upon the approval of the
requisite bond (Insular Savings Bank vs. Court of Appeals,  G.R. No. 123638,
June 15, 2005).

Cause of action must be specifically stated in the affidavit; sufficiency of

the averments in applicant’s affidavit
      The basis of petitioner’s application for the issuance of the writ of
preliminary attachment against the properties of respondent is Section 1(d) of
Rule 57.  For a writ of attachment to issue under this rule, the applicant must
sufficiently show the factual circumstances of the alleged fraud because
fraudulent intent cannot be inferred from the debtor’s mere non-payment of the
debt or failure to comply with his obligation (See Philippine NationalConstruction
Corporation vs. Dy, G.R. No. 156887, October 3, 2005, 472 SCRA 1, 9-12). The
applicant must then be able to demonstrate that the debtor has intended to
defraud the creditor (Spouses Godinez vs. Hon. Alano, A.M. RTJ-98-1409,
February 18, 1999, 362 Phil. 597).  The affidavit, being the foundation of the
writ, must contain such particulars as to how the fraud imputed to
respondent was committed for the court to decide whether or not to issue
the writ (Wee vs. Tankiansee, G.R. No.171124,February 13, 2008).
Improper  issuance and service of writ of attachment
     A distinction should be made between issuance and implementation of the
writ of attachment. This is necessary to determine when jurisdiction over the
defendant should be acquired to validly implement the writ.
    The grant of the provisional remedy of attachment involves three
stages: first, the court issues the order granting the application; second, the writ
of attachment issues pursuant  to the order granting the writ; and third, the writ is
implemented.  For the initial two stages, it is not necessary that jurisdiction
over the person of the defendant be first obtained, but once the
implementation of the writ commences, the court must have acquired
jurisdiction over the defendant  (Mangila vs. Court of Appeals, G.R. No.
125027, August 12, 2002, 387 SCRA 162).
Preference of levy on attachment duly registered over a prior unregistered
sale
   The settled rule is that levy on attachment, duly registered, takes preference
over a prior unregistered sale.  The preference created by the levy on attachment
is not diminished even by the subsequent registration of the prior sale.  This is so
because an attachment is a proceeding in rem.  It is against the particular
property, enforceable against the whole world.  The attaching creditor acquires
a specific lien on the attached property which nothing can subsequently
destroy except the very dissolution of the attachment or levy itself. The lien
continues until the debt is paid, or sale is had under execution issued on the
judgment, or until the judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law. Thus, in the registry, the attachment in
favor of respondents appeared in the nature of a real lien when petitioner had his
purchase recorded.  The effect of the notation of said lien was to subject and
subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs.
Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670).
Such a proceeding, in effect, means that the property attached is an
indebted thing and a virtual condemnation of it to pay the owner’s debt. The
lien continues until the debt is paid, or sale is had under execution issued on the
judgment, or until the judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law. Thus, in the registry, the attachment in
favor of respondents appeared in the nature of a real lien when petitioner had his
purchase recorded.  The effect of the notation of said lien was to subject and
subordinate the right of petitioner, as purchaser, to the lien  (Valdevieso vs.
Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670; See
also Lavides vs. Pre, G.R. No. 127830, October 21, 2001 and  Biñan Steel
Corporation vs. Court of Appeals, October 15, 2002, 391 SCRA 90).
   The principal claim of respondent, as plaintiff a quo, is in the amount of
P25,200,000.00, representing the three (3) unfunded checks drawn against, and
presented for clearing to, respondent bank.  Jurisprudence teaches that a writ of
attachment cannot be issued for  moral and exemplary damages, and other
unliquidated or contingent claim  (Insular Savings Bank vs. Court of
Appeals, G.R. No. 123638, June 15, 2005, 460 SCRA 122).
Merits of the action in which a writ of preliminary attachment has been
issued not triable on a motion for dissolution of the attachment. When the
preliminary attachment is issued upon a ground which is at the same time the
applicant’s cause of action, the defendant is not allowed to file a motion to
dissolve the attachment under Section 13 of Rule 57 by offering to show the
falsity of the factual averments in the plaintiff’s application and affidavits on which
the writ was based – and consequently that the writ based thereon had been
improperly or irregularly issued – the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a trial of the merits of
the action.  In other words, the merits of the action would be ventilated at a mere
hearing of a motion, instead of at the regular trial (Chuidian vs.
Sandiganbayan, G.R. No. 139941, January 19, 2001).
           There are only two ways of quashing a writ of attachment: (a) by filing a
counterbond immediately; or (b) by moving to quash on the ground of improper
and irregular issuance.  These grounds for the dissolution of an attachment are
fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an
attachment is circumscribed by the grounds specified therein. Petitioner’s
motion to lift attachment failed to demonstrate any infirmity or defect in the
issuance of the writ of attachment; neither did he file a counterbond  (Chuidian
vs. Sandiganbayan, G.R. No. 139941, January 19, 2001).
Without evidence of malice, attaching party not  liable for moral
damages. A wrongful attachment may give rise to liability for moral damages but
evidence must be adduced not only of the torment and humiliation brought upon
the defendant by the attaching party but also of the latter's bad faith or malice in
 causing the wrongful attachment, such as evidence that the latter deliberately
made false statements in its application for attachment.  Absent such evidence of
malice, the attaching party cannot be held liable for moral damages. (Spouses
Santiago vs. Allied Banking Corporation, G. R. No. 16450, November 25, 2008)
  Attachment bond under Sec. 3 is different from the bond under Sec. 14
(proceedings where property claimed by third person). Sec. 3 refers to the
attachment bond to assure the return of defendant’s property or the payment of
damages to the defendant if the plaintiff’s action to recover possession of the
same property fails, in order to protect the person’s right of possession of said
property, or to prevent the defendant from destroying the same during the
pendency of the suit. Under Sec. 14, the purpose of the bond is to indemnify the
sheriff against any claim by the intervenor to the property seized or for damages
arising from such seizure, which the sheriff was making and for which the sheriff
was directly responsible to the third party (Fort Bonifacio Development
Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008).   
No sale of property covered by writ of preliminary attachment before prior
judgment; exception
   A writ of attachment is  a provisional remedy and its issuance does not have
the effect of a  final judgment over the property attached. Thus, the property
cannot be sold before fiinal judgment. Exception: An attached property may be
sold after levy on attachment and before entry of judgment whenever it shall be
made to appear to the court In which the action is pending, upon hearing with
notice to both parties, that the attached property is perishable or that the
interests  of all the parties to the action will be subserved by the sale of the
attached property (Sec, 11, Rule 57; China Banking Corporation vs. Asian
Corporation and Development Corporation, G.R. No. 158271, April 8, 2008).
                                   PRELIMINARY INJUNCTION  - RULE 58
DEFINITION AND NATURE
 A preliminary injunction is an order granted at any stage of an action prior
to judgment of final order, requiring a party, court, agency, or person to refrain
from a particular act or acts.  It is a preservative remedy to ensure the protection
of a party’s substantive rights or interests pending the final judgment in the
principal action.  A plea for an injunctive writ lies upon the existence of a claimed
emergency or extraordinary situation which should be avoided for otherwise, the
outcome of a litigation would be useless as far as the party applying for the writ is
concerned (Phil. Ports Authority v. Cipres Stevedoring & Arrastre, Inc., G.R. No. 
145742,  July 14, 2005, 463 SCRA 358, 373-374).
 A preliminary injunction is a provisional remedy that a party may resort to in
order to preserve and protect certain rights and interests during the pendency of
an action. Its sole objective is to preserve the status quo until the merits of the
case can be heard fully.  Status quo is defined as the last actual, peaceful, and
uncontested status that precedes the actual controversy, that which is existing at
the time of the filing of the case. Indubitably, the trial court must not make use of
 its injunctive relief to alter such status. (Pineda vs.  Court of Appeals, G.R. No.
181643, November 17, 2010).
 The provisional remedy of preliminary injunction may only be resorted to
when there is a pressing necessity to avoid injurious consequences which cannot
be remedied under any standard of compensation.(G.G. Sportswear
Manufacturing Corp.  vs. Banco de Oro Unibank, Inc., G.R. No. 184434,
February 8, 2010)
 A writ of preliminary injunction, as an ancillary preventive remedy, may only
be resorted to by a litigant to protect or preserve his rights or interest and for no
other purpose during the pendency of the principal action  (Allied Domecq Phi.,
Inc. vs. Villon, G.R. No. 152264, September 30, 2004, 439 SCRA 667).
Distinguished from Prohibition
INJUNCTION PROHIBITION
Generally directed against a  Generally directed against a
party court, tribunal or personal
exercising judicial powers
Does not involve the May be on the ground that court
jurisdiction of the court is acting without or in excess of
jurisdiction
May be the main action or Always a main action
provisional remedy only
Injunction, Preliminary Injunction, and Temporary Restraining Order
Distinguished 
            Injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act.  It may be the main action or
merely a provisional remedy for and as an incident in the main action. The main
action for injunction is distinct from the provisional or ancillary remedy of
preliminary injunction which cannot exist except only as part or an incident of an
independent action or proceeding. As a matter of course, in an action for
injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or
mandatory, may issue (Bacolod City Water District vs. Labayan, G.R. No.
157494, December 10, 2004, 446 SCRA 110 citing Urbanes Jr. vs. Court of
Appeals, G.R. No. 117964, March 28, 2001, 355 SCRA 537).  
            A preliminary injunction is granted at any stage of an action or
proceeding prior to the judgment or final order. It persists until it is dissolved or
until the termination of the action without the court issuing a final
injunction. (Id, citing Miriam College Foundation Inc., vs. Court of Appeals, G.R.
No. 127930, December 15, 2000, 348 SCRA 265).
        A restraining order, on the other hand, is issued to preserve the status
quo until the hearing of the application for preliminary injunction which cannot be
issued ex parte xxx (Id,citing Miriam College Foundation Inc. vs. Court of
Appeals, G.R. No. 127930, December 15, 2000, 348 SCRA 265).
    Under the Rules of Court, probability is enough basis for injunction to
issue as a provisional remedy, which is different from injunction as a main action
 where one needs to establish absolute certainty as basis for a final and
permanent injunction.(Hernandez vs. NAPOCOR, G.R. No. 145328, March 23,
2006).
  For a writ of preliminary injunction to be issued, the Rules of Court do not
require that the act complained of be in clear violation of the rights of the
applicant. Indeed, what the Rules require is that the act complained of
be probably in violation of the rights of the applicant.Under the Rules, probability
is enough basis for injunction to issue as a provisional remedy.   (La Campana
Development Corporation vs. Court of Appeals, G.R. No. 154152, August 25,
2010, citing City of Naga v. Asuncion G.R. No. 174042, July 9, 2008, 557 SCRA
528)
PURPOSE
1.  The purpose of a preliminary injunction is to prevent threatened or
continuous irremediable injury to some of the parties before their claims can
be thoroughly studied and adjudicated (Medina vs.
Greenfield Development Corporation, G.R. No. 140228, November 19,
2004, 443 SCRA 150; Light Rail Transit Authority vs. Court of Appeals, G.R.
Nos. 139275-76 and 140949,  November 25, 2004, 444 SCRA 125; Sps. Estares
vs. Court of Appeals, G.R. No. 144755, June 8, 2005). 
2.   Its sole aim is to preserve the status quo until the merits of the case can be
heard fully (Cortez-Estrada vs. Samut,G.R. No. 154407, February
14, 2005). Thus, it will be issued only upon a showing of a clear and
unmistakable right that is violated. Moreover, an urgent and permanent necessity
for its issuance must be shown by the applicant (First Global Realty and
Development Corporation vs. San Agustin, G.R. No. 144499, February 19,
2002,  377 SCRA 341).
3.  Meaning of Status Quo
    The status quo is the last actual peaceable uncontested status which
preceded the controversy (Dolmar Real Estate Development Corporation, G.R.
No.  172990, February 27, 2008; Preysler Jr vs. Court of Appeals, G.R. No.
158141  July 11, 2006).
Issues on jurisdiction
1.  Pursuant to the policy of judicial stability, the judgment or order of a court of
competent jurisdiction may not be interfered with by any court of concurrent
jurisdiction (Javier vs. Court of Appeals, February 16, 2004, 423 SCRA 11; 
See also Chings vs. Court of Appeals, February 24, 2003, 398 SCRA 88).
2. Injunctions issued by the Regional Trial Courts are limited to acts committed or
to be committed within its territorial jurisdiction.  The doctrine is, however,
limited to prohibitory and injunctive writs.
            Section 21 of BP 129 reads: “Original jurisdiction in other cases –
Regional Trial Courts shall exercise original jurisdiction (1) in the issuance of
writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction which may be enforced in any party of their respective regions.”
3. Judge's authority to issue a writ of preliminary injunction only within
his/her territorial jurisdiction
            As the presiding judge of RTC, Marawi City, he should have known that
Makati City was way beyond the boundaries of his territorial jurisdiction insofar as
enforcing a writ of preliminary injunction is concerned. Section 21(1) of B.P. Blg.
129, as amended, provides that the RTC shall exercise original jurisdiction in the
issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of their respective
regions (Gomos vs. Adiong, A.M. No. RTJ-04-1863, October 22, 2004, 441
SCRA 162).
4.  The authority of a judge to issue a writ of injunction is limited only to and
operative only within his province or district and any such writ issued in
contravention of such limitation is void (Dela Paz vs. Adiong, November
23, 2004, 443 SCRA 480).
Original action for injunction outside the jurisdiction of the Court of
Appeals
    What petitioner filed with the appellate court was an original action for
preliminary injunction which is a provisional and extraordinary remedy calculated
to preserve or maintain the status quo of things and is availed of to prevent
actual or threatened acts, until the merits of the case can be heard.  An original
action for injunction is outside the jurisdiction of the Court of Appeals,
however.  Under B.P. 129, the appellate court’s jurisdiction to grant a writ of
preliminary injunction is limited to actions or proceedings pending before it
(Section 2 of Rule 58) or in a petition for certiorari, prohibition or
mandamus (Section 7 of Rule 65). In the case at bar, petitioner’s complaint-in-
intervention in Civil Case No. 00-196 was pending before Branch 256 of the
Muntinlupa RTC, not with the appellate court.  Petitioner’s petition before the
appellate court does not show that in issuing the writ of possession, the
Muntinlupa RTC acted without or in excess of its jurisdiction or with grave abuse
of discretion for it to be treated as either one for certiorari or
prohibition (Allgemeine-Bau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust
Co., Honorable N. C. Perello, G.R. No. 159296 , February 10, 2006).
Injunction to restrain extrajudicial foreclosure involving several parcels
located in different provinces
            Separate injunction suits may be filed for breach of mortgage contract
with injunction to restrain extrajudicial foreclosure proceedings of mortgaged
properties located in different provinces without violating the rule against forum
shopping since injunction is enforceable only within the territorial limits of the trial
court, thus the mortgagor is left without remedy as to the properties located
outside the jurisdiction of the issuing court unless an application for injunction is
made with another court which has jurisdiction over the latter court (Benguet vs.
Management Corporation vs. Court of Appeals, September 18, 2003, 411 SCRA
347).
Authority of any member of the court to issue a TRO
            While any member of the Court of Appeals may issue preliminary
injunction or TRO, this power is exercised only in case of extreme urgency and in
the tradition of the Supreme Court, the Court en banc or division ratifies or
confirms the act of the single justice at the very next session of the Court (Heirs
of the Late Justice Jose B.L. Reyes vs. Court of Appeals, August 2005, 338
SCRA 282)
Action by a Justice
            See: Rule VI, Section 5 of the Internal Rules of the Court of Appeals
Cases where preliminary injunction is prohibited or must be issued with
utmost caution and judiciousness
1.  Release of articles under seizure and forfeiture proceedings by the Bureau of
Customs (Commissioner of Customs vs. Court of Appeals, G.R. Nos. 111202-05,
January 31, 2006;Zuno vs. Cabredo, A.M. No. RTJ-03-1779, April 30, 2003;
Administrative Circular No. 7-99).
2.   Injunction orders in labor cases  (Art. 255, Labor Code, as amended by BP
227)
3.  Injunction to enjoin or restrain criminal prosecution (Borlongan vs. Pena, G.R.
No. 143591, November 23, 2007; Samson vs. Guingona, Jr., G.R. No. 123504,
December 14, 2000)
4  . Injunction to prevent the implementation of government infrastructure projects
(RA 8935)
5. Injunction to prevent the foreclosure of real estate mortgages by government
financing institutions (OCA Circular 93-2004 in relation to Sec. 1, Rule 141 of the
Rules of Court, Sec. 3, PD 385 and Administrative Circular No. 07-99)
6.  Injunction to prevent the Anti Money Laundering Council from issuing and /or
implementing freeze orders, with the exception of writs issued by the Court of
Appeals and the Supreme Court (RA 9160 as amended by RA 9194)
 7.  Injunction to restrain the Presidential Agrarian Reform Council   from
performing its tasks (Sec. 55, RA 6657)
 8.  Injunction against public administrative officers in the issuance of public
grants for the exploitation of natural resources (PD 605)

ISSUANCE OF PRELIMINARY INJUNCTION

A.  Principal action necessary
1.  Independent action merely to obtain preliminary injunction not allowed
            An independent action cannot be maintained merely to procure
preliminary injunction – some substantive relief must be sought.  Preliminary
injunction is a mere provisional remedy and adjunct to the main suit.  The
dismissal of the principal action thus results in the denial of the prayer for the
issuance of the writ (PNB  vs. Ritratto Group, Inc.,July 31, 2001, 362
SCRA 216).
     The ancillary and provisional remedy of preliminary injunction cannot exist
except only as an incident of an independent action or proceeding.(BF Homes,
Inc. vs. Manila Electric Company, G.R. No. 171624, December 6, 2010)
2.  Reason for power of court to issue preliminary injunction
            The controlling reason for the existence of the judicial power to issue
the writ is that the court may thereby prevent a threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly
investigated and advisedly adjudicated.  It is to be resorted only when there is a
pressing necessity to avoid injurious consequences which cannot be remedied
under any standard of compensation (Development Bank of the Philippines vs.
Court of Appeals, October 30, 2000, 344 SCRA 492; See also LRTA vs. Court of
Appeals, G.R. Nos. 139275-76 and 1409949, November 25, 2004;  Estares vs.
Court of Appeals, G.R. No. 144755, June 8, 2005).
B.  Requisites for issuance of preliminary injunction
a. The right to be protected exists prima facie and
b. The acts sought to be enjoined are violative of that right (Los Baños Rural
Bank, Inc. vs. Africa, July 11, 2002, 384 SCRA 535; Zamboanga Barter Goods
Retailers Association, Inc. vs. Lobregat, July 7, 2004, 433 SCRA 624; European
Resources and Technologies, Inc. vs. Ingenieuburo Birkhahn + Nolte
Ingeniurgesellscahft mbh, July 26, 2004, 435 SCRA 246).
When a writ of preliminary injunction may issue
     A writ of preliminary injunction may only be issued upon a clear showing: (1)
that there exists a right to be protected, and (2) that the action sought to be
enjoined is violative of that right. In the case at bar, the RTC found that, in
accordance with the MCTC’s findings in Civil Case No. 1243-99 as affirmed by
the Court of Appeals, the Bueno sisters, and not petitioner, were the owners of
the structure sought to be demolished. Clearly, the trial court found that petitioner
had no actual right that needs to be protected by a writ of preliminary injunction
(Pasion vs. Melegrito, G.R. No. 16658, March 28, 2007).
Options of respondents in a petition for writ of preliminary injunction
The petitioner adduced his evidence to support his plea for a writ of preliminary
injunction. The respondents then had three options: (a) file a motion to
deny/dismiss the motion on the ground that the petitioner failed to discharge his
burden to prove the factual and legal basis for his plea for a writ of preliminary
injunction and, if the trial court denies his motion, for them to adduce evidence in
opposition to the petitioner’s plea; (b) forego their motion and adduce testimonial
and/or documentary evidence in opposition to the petitioner’s plea for a writ of
preliminary injunction; or, (c) waive their right to adduce evidence and submit the
incident for consideration on the basis of the pleadings of the parties and the
evidence of the petitioner (Tayag vs. Lacson, G.R. No. 134971 , March 25, 2004,
426 SCRA 282).  
C.  Issuance of injunctions to be avoided to dispose of merits
The prevailing rule is that courts should avoid issuing a writ of preliminary
injunction which would in effect dispose of the main case without trial (Medina vs.
Greenfield Development,G.R. No. 140228, November 19, 2004).
D.  Injunctions not issued where act sought to be prevented had been
committed / consummated acts (fait accompli)
1. The remedy of injunction could no longer be availed of where the act to be
prevented had long been consummated.  Where a span of seven years has
intervened from the time the award of the lot has already been accomplished to
the time petitioners’ complaint for injunction was filed,  injunction would just be an
exercise in futility (Zabat vs. CA, August 23, 2000, 338 SCRA 551).
2. A writ of preliminary injunction will not issue if the act sought to be enjoined is
a fait accompli or an accomplished or consummated act (Transfield Philippines,
Inc., vs. Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By
issuing a temporary restraining order and writ of preliminary injunction enjoining
the eviction of the respondents, the Court of Appeals allowed the respondents to
stay in the property despite the mandatory provision of Section 19, Rule 70 of the
Rules of Court.  The appellate court, in effect, granted the same injunctive relief
which the respondents failed to secure from the Regional Trial Court due to their
procedural lapse (David vs. Navarro, February 11, 2004, 422 SCRA 499).
E. Injunction to stay final and executory decision unavailable;  exception
    An injunction to stay a final and executory decision is unavailing except only
after a showing that facts and circumstances exist which would render execution
unjust or inequitable, or that a change in the situation of the parties occurred.  
Here, no such exception exists as shown by the facts earlier narrated.   To
disturb the final and executory decision of the ERB in an injunction suit is to
brazenly disregard the rule on finality of judgments (Philippine Sinter Corporation
and PHIVIDEC Industrial Authority vs. Cagayan Electric Power and Light Co.,
Inc., G.R. No. 127371, 381 SCRA 582, April 25, 2002).
F.  There must be showing of irreparable injury
1. A writ of injunction should never issue when an action for damages
would adequately compensate the injuries caused.  The very foundation of
the jurisdiction to issue the writ of injunction rests in the existence of a cause of
action and in the probability of irreparable injury, inadequacy of pecuniary
compensation and the prevention of multiplicity of suits (PNB vs. RJ Ventures
Realty & Development Corporation, September 27, 2006, 503 SCRA 639). 
2.  While the evidence to be submitted at the hearing on the motions for
preliminary injunction need not be conclusive and complete,  there must be
a showing, at least tentatively of irreparable injury.  As a preliminary
injunction is intended to prevent irreparable injury to the plaintiff,  that possibility
should be clearly established, if only provisionally, to justify the restraint of the act
complained against.  Where no such injury is shown, the issuance of the
preliminary injunction, being utterly without basis, was held to be tainted with
grave abuse of discretion that cannot be corrected by certiorari (Estares vs.
Court of Appeals, G.R. No. 144755, June 8, 2005)
3.    The Court cannot see how petitioner shall suffer grave and irreparable injury
if the monetary awards in favor of respondents in the Decision of the NLRC are
executed.  The monetary awards may be collected from PMPI and any of its
remaining assets.  It must be emphasized that the NLRC, in its decision, explicitly
states that petitioner is not solidarily liable with PMPI but is liable only in his
official capacity.  In the event that the monetary awards are actually executed on
petitioner’s properties, and his Petition for Certiorari in CA-G.R. SP No. 94005 is
eventually granted, the damage against petitioner shall not be irreparable for
respondents can simply be ordered to return to petitioner the amounts they
received, with interests, if appropriate. Given the foregoing, the Court of Appeals
correctly denied petitioner’s application since there is a marked absence of any
urgent necessity for the issuance of a TRO or writ of preliminary injunction.
(Brizuela vs. Dingle, G.R. No. 175371, April 20, 2008).
4.  While merely a sampling of the evidence is required, such evidence
must, however, rest on solid grounds and not on mere hearsay or
unfounded fears.  The evidence to be submitted to justify preliminary injunction
at the hearing thereon need not be conclusive or complete but need only be a
“sampling” intended merely to give the court an idea of the justification for the
preliminary injunction pending the decision of the case on the merits. Our
concern here involves only the propriety of the preliminary injunction and not the
merits of the case still pending with the trial court.  A perusal of the records of the
case at bar shows, however, that the trial court, in arriving at its belief that there
is need to at least temporarily restrain the defendants just parroted petitioner’s
allegations in his “STATEMENT OF FACTS”  in the complaint and in his
Affidavit.  The minutes of a purported session do not show that testimonial or
documentary evidence was presented during the session-alleged “summary
hearing.” (Matutina vs. PNB, G.R. No. 165570, February 23, 2006).
G. Transfer of Possession
1.  General rule:  not allowed
a.  The rule is predicated on the proposition that the ownership as well as the
possession of the (properties) in dispute are the main issues and that the relief
was prayed for before the issue had been decided on the merits.  Before the
issue is determined in the light of the evidence presented,  justice and equity
demand that the parties be maintained in theirstatus quo so that no advantage
may be given to one to the prejudice of the other. Unless there is a clear
pronouncement regarding ownership and possession of the land,  or unless the
land is covered by a torrens title pointing to one of the parties as the undisputed
owner,a writ of preliminary injunction should not issue to take (the
properties) out of the possession of one party to place it in the hand of
another (Medina vs. Greenfield Dev’tCorporation, G.R. No. 140228, November
19, 2004;  See also Cortez-Estrada vs. Samutm,G.R. No. 154407,  February 14,
2005).
b.  The respondent is the registered owner of the property; hence, he is entitled
to the possession thereof. As a rule, a writ of preliminary mandatory injunction is
not granted to take property out of the possession or control of one party to be
placed into that of another whose title has not been clearly established by
law. (Almeida vs. Court of Appeals, G.R. No. 159124,  January 17, 2005, 448
SCRA 681).
2.  Exception:
Article 539, Civil Code:  A possessor deprived of his possession through forcible
entry may within 10 days from the filing of the complaint present a motion to
secure from the competent court, in the action for forcible entry, a writ of
preliminary mandatory injunction to restore him in his possession.  The court
shall decide the motion within 30 days from filing thereof.
H. Discretion in issuance of preliminary injunction
1. Strong arm of equity
    A preliminary injunction is an extraordinary event calculated to preserve or
maintain the status quo of things ante litem and is generally availed of to prevent
actual or threatened acts, until the merits of the case can be heard.  Injunction is
accepted as the strong arm of equity or a transcendent remedy. While generally
the grant of a writ of preliminary injunction rests on the sound discretion of the
trial court taking cognizance of the case, extreme caution must be observed.  
Every court should remember that an injunction is a limitation upon the freedom
of action of the defendant and should not be granted lightly or precipitately.  It
should be granted only when the court is fully satisfied that the law permits it and
the emergency demands it (Tayag vs. Lacson, March 25, 2004 426 SCRA
282).  
2. Specifying basis of, necesssary
    The Court has ruled that the possibility of irreparable damage without proof of
actual existing right is not a ground for an injunction.  Where the complainant’s
right is doubtful or disputed,  injunction is not proper.  Absent a clear legal right, 
the issuance of the injunctive relief constitutes grave abuse of discretion (Manila
International Airport vs. Court of Appeals, February 14, 2003, 397 SCRA 348,; 
See also Tayag vs. Lacson,  March 25,2004).

MANDATORY INJUNCTION
    Strict requisites for mandatory injunction. Since it commands the
performance of an act, a mandatory injunction does not preserve the status quo
and is thus more cautiously regarded than a mere prohibitive injunction (Gateway
Electronics Corporation vs. Land Bank of the Philippines, July 30, 2003, 407
SCRA 454,).
    Preliminary injunction granted only when complaint is verified
Rule 58, Section 4 (a) is clear with regard to the procedure to be followed in the
issuance of writs of preliminary injunction, i.e., a preliminary injunction or
temporary restraining order may be granted only when the application in the
action or proceeding is verified, and shows facts entitling the applicant to the
relief demanded. A preliminary injunction may be granted only when the
complaint is verified.  Absence of verification makes an application or petition for
preliminary injunction patently insufficient both in form and substance (Rivera vs.
Mirasol,A.M. No. RTJ-04-1885, July 15, 2004, 434 SCRA 315).
Forum Shopping      
Where a party filed complaints in another Regional Trial Court for injunctive relief
after another RTC had set aside the writ of preliminary injunction issued by it, he
is guilty of forum shopping (Philippine Commercial International Bank vs. Court of
Appeals, July 17, 2003, 406 SCRA 575).
CHANGE IN THE RULE
      The last paragraph which was added to Section 5 states that a higher court
(RTC, Court of Appeals, Sandiganbayan, Court of Tax Appeals) which issues a
writ of preliminary injunction against a lower court, board, officer or quasi-judicial
agency must “decide the main case or petition within six (6) months from the
issuance of the writ.” (AM 07-7-12, effective December 27, 2007).
        Purpose: in order not to unduly delay the main case lodged in the lower 
court.
Summary hearing required
      Whenever an application for a TRO is filed, the court may act on the
application only after all parties have been notified and heard in a summary
hearing. Summary hearing may not be dispensed with. Administrative Circular
No. 20-95 aims to restrict the ex parte issuance of a TRO only to cases of
extreme urgency in order to avoid grave injustice and irreparable injury (Dela
Cruz vs. Villalon-Pornillos, June 8, 2004,  431 SCRA 153).
    The order granting a writ of preliminary injunction is an interlocutory order.
As such, it cannot by itself be subject of an appeal or a petition for review on
certiorari (Landbank of the Philippines vs. Listana, Sr.,August 5, 2003,  408
SCRA 328).
     An injunction duly issued must be obeyed however erroneous the action of
the court may be until a higher court overrules such decision (Rosario Textile
Mills, Inc. vs. Court of Appeals, August 25, 2003, 409 SCRA 515).
Limited lifetime of TRO
    The TRO issued by the CA has long lapsed, its lifetime under Rule 58 of the
Rules of Court being only 60 days. Respondents themselves admit that the CA
allowed its TRO to lapse.  Because there is nothing that will now stop the Imus,
Cavite RTC from implementing its writ of preliminary injunction against
respondents, there is no need for us to issue any order enjoining respondents
from implementing petitioners’ suspension. This petition, as a result, has become
moot and academic. (Yu and Yuhico vs. The Orchard Golf and Country Club,
Inc., G.R. No. 150335, March 1, 2007).
Decision on the merits, effect on writ of preliminary injunction
   The propriety of the Order of dismissal of civil case before the RTC should
render moot and academic the petition for review of the Decision of the Court of
Appeals. It is well settled that the issue of propriety of obtaining a preliminary
injunction dies with the main case from which it logically sprang.   Such a
 provisional remedy, like any other interlocutory order, cannot survive the main
case of which it is but an incident. Indeed what more could this Court enjoin
when the complaint has already been dismissed?   (G & S Transport Corporation
vs. Court Of Appeals, G.R. No. 120287, May 28, 2002).

Actions upon a writ of injunction under court discretion

 The issuance or recall of a preliminary writ of injunction is an interlocutory
matter that remains at all times within the control of the court or quasi-judicial
body that issued it.  Thus, petitioners could not rightfully claim a vested right to
an injunctive writ (Yu and Yuhico vs. The Orchard Golf and Country Club,
Inc. et.al, G.R. No. 150335, March 1, 2007).  The matter of the issuance of a writ
of preliminary injunction is addressed to the sound discretion of the trial court
unless the court committed a grave abuse of discretion (Toyota Motors Phil.,
Corporation Workers Association (TMPCWA) vs. Court of Appeals,September
24, 2003, 412 SCRA 69; Landbank of the Philippines vs. Continental Watchman
Agency, Inc., January 22, 2004, 420 SCRA 624; Carlos A. Gothong Lines,
Inc.vs. Court of Appeals, July 1, 2004, 433 SCRA 348). However, while generally
the grant of a writ of preliminary injunction rests on the sound discretion of the
trial court taking cognizance of the case, extreme caution must be observed in
the exercise of such discretion (Tayag vs. Lacson,  March 25, 2004, 426 SCRA
282).
 The issuance of any provisional remedy, such as a TRO in the alleged
case, is addressed to the sound discretion of the court upon certain conditions as
provided by law that are amply shown by the applicant.  Consequently, undue
delay or inaction on an application of a provisional remedy, like a TRO, cannot be
imputed to the judge or court where there is no showing that the grant thereof is
proper and well nigh dictated by an indubitable right of a party-applicant that
needs protection. (Re: Letter-Complaint of Atty. Ariel Samson C. Cayetuna, et
al., All Employees of Associate Justice Michael P. Elbinias against Associate
Justice Michael P. Elbinias, CA – Mindanao Station, A.M. OCA IPI No. 08-127-
CA-J, January 11, 2011.)

                                          RECEIVERSHIP - RULE 59
Grant of receivership must be with sufficient justification
            As early as 1914, the Court already enunciated the doctrinal
pronouncement inVelasco & Co. v. Gochuico & Co. that courts must use utmost
circumspection in allowing receivership.
            Also, petitioner is willing to post a counterbond in the amount to be fixed
by the court based on Sec. 3, Rule 59 of the 1997 Rules of Civil Procedure.
Anchored on this rule, the trial court should have dispensed with the services of
the receiver, more so considering that the alleged fraud put forward to justify the
receivership was not at all established. Lastly, since a notice of lis pendens has
been annotated on the titles of the disputed properties, the rights of petitioners
are amply safeguarded and preserved.  Hence, there is no need for a receiver to
look after the disputed properties (Vivares and Ignaling vs. Reyes, G.R. No.
155408, February 13, 2008).
Acts prohibited during receivership and liquidation proceedings
While it is true that foreclosure falls within the broad definition of “doing
business,” that is:
…a continuity of commercial dealings and arrangements and contemplates to
that extent, the performance of acts or words or the exercise of some of the
functions normally incident to and in progressive prosecution of the purpose and
object of its organization.
it should not be considered included, however, in the acts prohibited whenever
banks are “prohibited from doing business” during receivership and liquidation
proceedings.
            This is consistent with the purpose of receivership proceedings, i.e., to
receive collectibles and preserve the assets of the bank in substitution of its
former management, and prevent the dissipation of its assets to the detriment of
the creditors of the bank. In both receivership and liquidation proceedings, the
bank retains its juridical personality notwithstanding the closure of its business
and may even be sued as its corporate existence is assumed by the receiver or
liquidator.  The receiver or liquidator meanwhile acts not only for the benefit of
the bank, but for its creditors as well (Sps. Larrobis vs. Philippine Veterans
Bank, G.R. No. 135706,  October 12, 2004). 
Bank bound by the acts, or failure to act of its receiver
Settled is the principle that a bank is bound by the acts, or failure to act of its
receiver.  As we held in Philippine Veterans Bank vs. NLRC (G.R. No. 130439,
October 26, 1999, 317 SCRA 510) a labor case which also involved respondent
bank,
… all the acts of the receiver and liquidator pertain to petitioner, both having
assumed petitioner’s corporate existence.  Petitioner cannot disclaim liability by
arguing that the non-payment of MOLINA’s just wages was committed by the
liquidators during the liquidation period.
However, the bank may go after the receiver who is liable to it for any culpable or
negligent failure to collect the assets of such bank and to safeguard its
assets (Sps. Larrobis vs. Philippine Veterans Bank, October 12, 2004, G.R. No.
135706 ).
Effect of receivership on loans
            In Banco Filipino Savings and Mortgage Bank v. Monetary Board (G.R.
No. 70054,  December 11, 1991, 204 SCRA 767, 789), the validity of the closure
and receivership of Banco Filipino was put in issue.  But the pendency of the
case did not diminish the authority of the designated liquidator to administer and
continue the bank’s transactions.  The Court allowed the bank’s liquidator to
continue receiving collectibles and receivables or paying off creditor’s claims and
other transactions pertaining to normal operations of a bank.  Among these
transactions were the prosecution of suits against debtors for collection and for
foreclosure of mortgages.  The bank was allowed to collect interests on its loans
while under liquidation, provided that the interests were legal (Banco Filipino
Savings and Mortgage Bank vs. Ybañez, G.R. No. 148163, December 6, 2004).

Power to contract limited during receivership

            In all, respondent bank’s receiver was without any power to approve or
ratify the “exclusive option to purchase” granted by the late Vicente G. Puyat,
who, in the first place, was himself bereft of any authority, to bind the bank under
such exclusive option. Respondent Manila Bank may not thus be compelled to
sell the land and building in question to petitioner Abacus under the terms of the
latter’s “exclusive option to purchase”.(Abacus Real Estate Development Center,
Inc., vs. The Manila Banking Corporation, G.R. No. 162270 , 2005 April 6, 2005).
Obligation to pay interest subsists even under receivership
            When a bank is placed under receivership, it would only not be able to do
new business, that is, to grant new loans or to accept new deposits.  However,
the receiver of the bank is in fact obliged to collect debts owing to the bank,
which debts form part of the assets of the bank. Thus, petitioners’ obligation to
pay interest subsists even when respondent was placed under receivership.  The
respondent’s receivership is an extraneous circumstance and has no effect on
petitioners’ obligation (Sps Aguilar vs. The Manila Banking Corporation, G.R. No.
157911, September 19, 2006).
To institute action:  a general power of a receiver
            One of the general powers of a receiver under Rule 59, Section 6 of the
Rules of Court is the power to bring and defend suits in such capacity. Petitioner
also contends that an action filed by a successor-receiver against him as
predecessor-receiver is not allowed under Rule 59, Section 6 without leave of
court which appointed him; as Section 6 provides that “no action may be filed by
or against a receiver without leave of the court which appointed him.” This is
bereft of merit.  The rule talks of the current receiver of the company and not
the previous receiver like petitioner Orendain. The reason behind Rule 59,
Section 6, which requires leave of court for all suits by or against the present
receiver, is to forestall any undue interference with the receiver’s performance of
duties through improvident suits. Apparently, such situation cannot apply to
Orendain who is no longer BF Homes’ receiver (Orendain vs. BF Homes,
Inc., G.R. No. 146313, October 31, 2006).
Receivership is an auxiliary remedy
            Receivership is not an action.  It is but an auxiliary remedy, a mere
incident of the suit to help achieve its purpose.  Consequently, it cannot be said
that the grant of receivership in one case will amount to res judicata on the merits
of the other cases.  The grant or denial of this provisional remedy will still depend
on the need for it in the particular action (Chavez vs. Court of Appeals, G.R. No.
174356, January 20,  2010)
REPLEVIN  - RULE 60
     Replevin is an action whereby the owner or person entitled to repossession of
goods or chattels may recover those goods or chattels from one who has
wrongfully distrained or taken, or who wrongfully detains such goods or chattels. 
It is designed to permit one having right to possession to recover property in
specie from one who has wrongfully taken or detained the property. The term
may refer either to the action itself, for the recovery of personalty, or to
the provisional remedy traditionally associated with it, by which possession of
the property may be obtained by the plaintiff and retained during the pendency of
the action
Facts that must be alleged in the application for replevin
An application for replevin must show that the property is not --
1.  distrained,
2.  taken for a tax assessment or a fine pursuant to law,
3.  seized under a writ of execution or preliminary attachment, or
4.  placed under custodia legis
            (Vda. De Danao vs. Ginete, January 21, 2003, 395 SCRA 542).
Preliminary Attachment Replevin
Available even if recovery of Available only if principal relief
personal property is only incidental sought is recovery of personal
relief in the action property;  Relief for damages are
only incidental
Can be resorted to even if personal Can be sought only where
property is in the custody of a third defendant is in actual or
person constructive possession of the
personality involved
Extends to all kinds of property Extends only to personal property
capable of manual delivery
To recover possession of personal To recover personal property
property unjustly detained;  even if it is not being concealed,
Presupposes that it is being removed, or disposed of
concealed, removed, or disposed
to prevent its being found or taken
by the applicant
Can be resorted to even if property Cannot be availed of if property is
is in custodia legis under custodia legis
  The RTC had no jurisdiction to take cognizance of the petition for replevin
by respondents herein, issue the writ of replevin and order its
enforcement.  The Collector of Customs had already seized the vehicles and set
the sale thereof at public auction.  The RTC should have dismissed the petition
for replevin at the outset. By granting the plea of respondents (plaintiffs below)
for the seizure of the vehicles and the transfer of custody to the court, the RTC
acted without jurisdiction over the action and the vehicles subject matter
thereof.   The forfeiture of seized goods in the Bureau of Customs is a
proceeding against the goods and not against the owner. It is in the nature of a
proceeding in rem, i.e., directed against the res or imported articles and entails a
determination of the legality of their importation. In this proceeding, it is, in legal
contemplation, the property itself which commits the violation and is treated as
the offender, without reference whatsoever to the character or conduct of the
owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October 27,
2006).
Remedy of defendant in a replevin suit
   If a defendant in a replevin action wishes to have the property taken by the
sheriff restored to him, he should within five days from such taking, (1) post a
counter-bond in double the value of said property, and (2) serve plaintiff with a
copy thereof, both requirements — as well as compliance therewith within the
five-day period mentioned — being mandatory.  Conformably, a defendant in a
replevin suit may demand the return of possession of the property replevined by
filing a redelivery bond executed to the plaintiff in double the value of the property
as stated in the plaintiff’s affidavit within the period specified in Sections 5 and 6
(Spouses Bautista vs. Sula, A.M. No. P-04-1920, August 17, 2007).
        Action for recovery  of car a civil, not labor dispute
            In reversing the RTC ruling and consequently dismissing the replevin 
case for lack of jurisdiction, the CA held:  We find that the car plan privilege is a
benefit arising out of employer-employee relationship, Astorga being district sales
manager of SMART..  Thus, the claim for such falls squarely within the original
and exclusive jurisdiction of the labor arbiters and the NLRC.”
             We do not agree. The RTC rightfully assumed jurisdiction over the suit
and acted well within its discretion in denying Astorga’s motion to dismiss. 
SMART’s demand for payment of the market value of the car or, in the
alternative, the surrender of the car, is not a labor, but a civil, dispute.  It involves
the relationship of debtor and creditor rather than employee-employer relations.
As such, the dispute falls within the jurisdiction of the regular courts. (Smart
Communications, Inc. vs. Astorga, G.R. No. 148132, January 28, 2008).
SUPPORT PENDENTE LITE - RULE 61
Who are Obliged to Give Support
1. Under Article 199 of the Family Code, respondent Francisco, as the next
immediate relative of Rica and Rina, is tasked to give support to his
granddaughters in default of their parents.
2. The applicable provision is Article 204 of the Family Code. Thus,
Francisco may give the determined amount of support to the twins or he
may allow them to stay in the family dwelling (Philippines). The second
option cannot be availed of in case there are circumstances, legal or
moral, which should be considered.  With the filing of this case, and the
allegations hurled at one another by the parties, the relationships among
the parties had certainly been affected.
3. Finally, as to the amount of support pendente lite, the amount of support
to be proportionate to the resources or means of the giver and to the
necessities of the recipient. We hold respondent Francisco liable for half
of the amount of school expenses incurred by Rica and Rina as
support pendente lite. As established by petitioner, respondent Francisco
 has the financial resources to pay this amount. Considering, however,
that the twin sisters may have already been done with their education by
the time of the promulgation of this decision, we deem it proper to award
support pendente lite in arrears.   (Mangonon vs. Court of Appeals, G.R.
No. 125041, June 30, 2006).
Courts need not delve fully into the merits of the case before it can settle
an application for this relief
Under this provision, a court may temporarily grant support pendente lite prior to
the rendition of judgment or final order. All that a court is tasked to do is
determine the kind and amount of evidence which may suffice to enable it to
justly resolve the application. It is enough that the facts be established by
affidavits or other documentary evidence appearing in the record (Mangonon vs.
Court of Appeals, G.R. No. 125041, June 30, 2006).
In determining the amount of support to be awarded, such amount should
be in proportion to the resources or means of the giver and the necessities
of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code.
It is incumbent upon the trial court to base its award of support on the evidence
presented before it.  The evidence must prove the capacity or resources of both
parents who are jointly obliged to support their children as provided for under
Article 195 of the Family Code; and the monthly expenses incurred for the
sustenance, dwelling, clothing, medical attendance, education and transportation
of the child (Lam vs. Chua, G.R. No. 131286, March 18, 2004, 426 SCRA 29).
Amount of support  never  permanent
     There is no merit to the claim of Jose that the compromise agreement
between him and Adriana, as approved by the Makati RTC in the case for
voluntary dissolution of conjugal partnership of gains, is a bar to any further
award of support in favor of their child John Paul.  The provision for a common
fund for the benefit of their child John Paul, as embodied in the compromise
agreement between herein parties which had been approved by the Makati RTC,
cannot be considered final and res judicata since any judgment for support is
always subject to modification, depending upon the needs of the child and the
capabilities of the parents to give support (Lam vs. Chua, G.R. No. 131286, 
March 18, 2004). 
Judgments in actions for support immediately executory
Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by
the trial court, judgments in actions for support are immediately executory and
cannot be stayed by an appeal.  This is an exception to the general rule which
provides that the taking of an appeal stays the execution of the judgment and
that advance executions will only be allowed if there are urgent reasons therefor. 
The aforesaid provision peremptorily calls for immediate execution of all
judgments for support and makes no distinction between those which are the
subject of an appeal and those which are not. 
In all cases involving a child, his interest and welfare are always the paramount
concerns.  There may be instances where, in view of the poverty of the child, it
would be a travesty of justice to refuse him support until the decision of the trial
court attains finality while time continues to slip away.  (Gan vs. Reyes,  G.R.
No. 145527, May 28, 2002).
                            SPECIAL CIVIL ACTIONS
                                 PETITION FOR CERTIORARI – Rule 65
      How taken and time for filing (Secs. 1 & 4).
  Verified petition within 60 days from notice of judgment, order or   resolution, or
order denying motion for new trial or reconsideration.     Period now inextendible. 
– last paragraph of Section 4: “No extension of time to file the petition shall be
granted except for compelling reasons and in no case exceeding fifteen (15)
days” has been DELETED by A.M. No. 07-7-12-SC, effective December 27,
2007.
                      Hence, petitions for certiorari must be filed strictly within 60 days
from notice of judgment or from the order denying a motion for reconsideration.
         A. M. No. 07-7-12 has also amended the second paragraph of Sec.
4:                     
                          If the petition relates to an act or omission of a municipal
trial courtor of a corporation, board, officer or person, it shall be filed with the
Regional Trial Court exercising jurisdiction over the territorial area as defined by
the Supreme Court.  It may also be filed with the Court of Appeals whether or not
the same is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in
aid of its appellate jurisdiction.  If the petition involves an act or omission of a
quasi-judicial agency, unless otherwise provided by law or these rules, the
petition shall be filed with and be cognizable only by the Court of Appeals.
                                   In election cases involving an act or omission of a
municipal or regional trial court, the petition shall be filed exclusively with
the Commission on Elections, in aid of its appellate jurisdiction
       Following the hierarchy of courts, no certiorari against the RTC shall be filed
with the Supreme Court. This will help prevent the clogging of the Supreme
Court’s dockets as litigants will be discouraged from filing petitions directly with
the Supreme Court.
                       For election cases involving acts or omissions of a municipal or
regional trial court, the petition shall be filed exclusively with the Comelec as
ruled by the Supreme Court in Relampagos vs. Comelec (243 SCRA 690, April
27, 1995).
                  Section 7. Expediting proceedings; injunctive relief. -  The court
in which the petition is filed may issue orders expediting the proceedings, and it
may also grant a temporary restraining order or a writ of preliminary injunction for
the preservation of the rights of the parties pending such proceedings.  The
petition shall not interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been issued against the
public respondent from further proceeding in the case.
      The public respondent shall proceed with the principal case within ten
(10) days from the filing of a petition for certiorari with a higher court or
tribunal, absent a temporary restraining order or a preliminary injunction,
or upon its expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge
                     Unless there is a temporary restraining order or preliminary injunction
issued by a higher court, the main or principal case should proceed despite the
filing of a petition for certiorari questioning an act or omission of a court or
tribunal
                     Judicial courtesy, therefore, can no longer be used as an excuse by
courts or tribunals not to proceed with the principal case.
   Section 8.   Proceedings after comment is filed. -  x x x     However, the
court may dismiss the petition if it finds the same patently without merit or
prosecuted manifestly for delay, or if the questions raised therein are too
unsubstantial to require consideration. In such event, the court may award in
favor of the respondent treble costs solidarily against the petitioner and
counsel, in addition to subjecting counsel to administrative sanctions
under Rules 139 and 139-B of the Rules of Court.
                                The Court may impose motu proprio, based on rep ipsa
loquitur,other disciplinary sanctions or measures on erring lawyers for
patently dilatory and unmeritorious petitions for certiorari.
                The amendment seeks to discourage litigants and their counsel from
filing baseless petitions for certiorari.
       Three (3) essential dates that must be stated in a petition for  certiorari – (a)
the date when notice of the judgment, final order or resolution was received, (b)
when a motion for new trial or reconsideration was filed, and (c) when notice of
the denial thereof was received (Seastar Marine Services, Inc. vs. Bul-an, 444
SCRA 140 [2004]).
     Late filing of petition for certiorari – for being filed one day late, the Court       
of Appeals dismissed petition for certiorari of NLRC  decision. The Supreme
Court upheld the dismissal. Deviations from the rule cannot be tolerated. Its
observance cannot be left to the whims and caprices of the parties (LTS
Philippines Corp. vs. Maliwat, 448 SCRA 254 [2005]).
      Documents to accompany petition: (a) certified true copy of the judgment,   
order or resolution subject of the petition. (b) copies of all relevant pleadings and
documents and (c) sworn certification of non-forum shopping (Caingat vs.
NLRC, G.R. No. 154308, March 10, 2005).   The requirement for certified true
copies refers to the judgment, order or resolution (Air Philippines vs. Zamora,
G.R. No. 148247, August 7, 2006).  The use of mere photocopies of certified true
copies of judgments or orders subject matter of a petition renders that petition
deficient and subject to dismissal (Pinamakasarap Corporation vs. NLRC, G.R.
No. 155058, September 26, 2006).
     SC, CA and RTC have concurrent jurisdiction 
  Petition for certiorari to annul RTC orders filed with the SC should be
dismissed. It should have been filed with the CA, following the principle of
hierarchy of courts (De los Reyes vs. People, 480 SCRA 294 [ 2006]).
  If aggrieved, even a non-party may institute a petition for certiorari (Chua vs.
CA, 443 SCRA 259 [2004]).
      Petitions for certiorari, prohibition and mandamus are not available under
the Rule on Summary Procedure (Sec. 19), in a petition for a writ of amparo
(Sec. 19, Rule on the Writ of Amparo), and in a petition for a writ of habeas data
(Sec. 19, Rule on the Writ of Habeas Data), It is also not available in small claims
cases (Sec. 14 (g). A.M. No. 08-8-7-SC).
       If involving acts or omissions of a quasi-judicial agency, petition filed in
CA     (Sec. 4).
       Directed against a tribunal, board or officer exercising judicial or quasi-
judicial functions.
  Not available as a remedy for the correction of the acts performed by a sheriff
during the execution process, which acts are neither judicial nor quasi-judicial but
are purely ministerial functions. Prohibition is the proper remedy (Pamana, Inc.
vs. CA, 460 SCRA 133 [2005]).      
  Where the function is merely investigative and recommendatory with no power
to pronounce judgment on the controversy, it does not involve the exercise of
judicial or quasi-judicial power. Hence, the acts may not be challenged in a
petition for certiorari (Doran vs. Luczon, G.R.No. 151344, September 26, 2006).
      A petition for certiorari must be based on jurisdictional grounds because as
long as the respondent acted with jurisdiction, any error commited by him or it in
the exercise thereof will amount to nothing than an error of judgment which may
be reviewed by or corrected by appeal (Estrera vs. CA, G.R. No. 154235, August
16, 2006).
      Since the issue is jurisdiction, an original action for certiorari may be
directed against an interlocutory order of the lower court prior to an appeal from
the judgment (New Frontier Sugar Corporation vs. RTC of Iloilo, G.R. No.
165001, January 31, 2007).
      Ground: grave abuse of discretion, etc.
  Denial of motion to dismiss or to quash, being interlocutory, cannot be
questioned by certiorari; it cannot be subject of appeal, until final order or
judgment is rendered. Exceptions (when recourse to certiorari or mandamus
appropriate): (a) when trial court issued the order without or excess of
jurisdiction; (b) when there is patent grave abuse of discretion by the trial court;
or (c) when appeal would not prove to be a speedy and adequate remedy as
when an appeal would not promptly relieve defendants from the injurious effects
of the patently mistaken order (DBP vs. La Campana Development Corp.,448
SCRA 384 [2005]).
   A mere denial of an application for an ex parte order for the seizure of
evidence is not indicative of grave abuse of discretion where petitioner failed to
point out specific instances where grave abuse of discretion was allegedly
commmitted and how the respondent court
                                           supposedly exercised its power in a despotic,
capricious or whimsical manner (Microsoft Corporation vs. Best Deal Computer
     Center Corporation, 389 SCRA 615 [2002]).
  A judge gravely abuses his discretion when he  extends by twenty  (20) days
the 72-hour restraining order he initially issued because In no case shall the total
period of effectivity of the temporary restraining order exceed 20 days (Beso vs.
Aballe, 326 SCRA 100 [2000]).
  There is grave abuse of discretion where the trial court fails to determine a
factual controversy before issuing a writ of demolition. Failure to do so is to
disregard basic principles of due process because before demolition could be
effected, the parties concerned must be heard ( Bermudez vs.Gonzales,
347 SCRA 611 [2000]).
      No appeal or any plain, speedy and adequate remedy.
   Under the 2000 National Prosecution Service Rules on Appeal, the resolution
of the Secretary of Justice affirming, modifying or reversing the resolution of the
Investigating Prosecutor is final. The remedy of the aggrieved party is to file a
petition for certiorari with the Court of Appeals since there is no more appeal or
other remedy available in the ordinary course of law. To file an appeal with the
Court of Appeals under Rule 43 is an improper remedy (Alcaraz. vs. Gonzales.
G.R. No. 164715, September 26, 2006).
  The CA is empowered under its certiorari jurisdiction to annul and declare void
the questioned resolutions of the Secretary of Justice, but only on two grounds –
lack of jurisdiction and grave abuse of discretion amounting to lack of jurisdiction.
The power to reverse and set aside partakes of an appellate jurisdiction which
the CA does not have over judgments of the Secretary of Justice exercising
quasi-judicial functions (Buan vs. Matugas, G.R. No. 161179, August 7, 2007).
   A judgment or final order of the Court of Appeals on the petition for certiorari
against the Secretary of Justice is reviewable by the Supreme Court by a petition
for review under Rule 45, not the original action for certiorari under Rule 65. It is
elementary that a writ of certiorari under Rule 65 where the remedy of appeal
(like Rule 45) is available precludes certiorari(Spouses Balanguan vs. CA, G. R.
No. 174350, August 13, 2008).
      Generally, if appeal is available, certiorari cannot be resorted to. Appeal and
certiorari mutually exclusive and  not alternative or successive.       
  Certiorari filed instead of appeal during period of appeal did not toll period or
prevent judgment from becoming final (Del Rosario vs. Galagot, 166 SCRA 429).
   Certiorari not substitute for lost appeal. Existence and availability of the right
to appeal prohibits the resort to certiorari even if the error ascribed to the court is
lack or excess of jurisdiction or grave abuse of discretion in the findings of fact or
law set out in the decision (Bugarin vs. Palisoc, G.R. No. 157985, December 2,
2005,476 SCRA 587).
  If remedy of appeal lost due to petitioner’s neglect or error in choice of
remedies, certiorari not substitute or tool to shield petitioner from adverse effects 
(Professional Regulations Commission vs. CA, 292 SCRA 155).
                                 Exceptions:
 When public welfare and advancement of public policy dictate.
 When broader interest of justice so requires.
 When writs issued are null and void.
 When questioned order amounts to an oppressive exercise of judicial
authority.
 Where appeal is not adequate, speedy and effective.
In any such instances, special civil action of certiorari may be availed of
- even during the pendency of the case or even after judgment, or
-  even when appeal has been availed of
 Availability of appeal does not foreclose recourse to certiorari where appeal
not adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292
SCRA 365).
 Rule may be relaxed when rigid application will result in manifest failure or
miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425).
 Where remedies not incompatible, filing of certiorari not abandonment of
appeal.  Appeal is from decision in main   case while certiorari is against          
order denying motion for  new trial (Lansang, Jr. vs. CA, 184 SCRA 230; St.
Peter Memorial Park vs. Campos, 63 SCRA 180).
 An appeal from a judgment does not bar a certiorari petition against the order
granting execution pending appeal and the issuance of the writ of execution
(Mañacop vs. Equitable PCIBank, 468 SCRA 256).
 However, a party is not allowed to question a decision on the merits and also
invoke certiorari. Filing of a petition for certiorari under Rule 65 and ordinary
appeal under Rule 41 cannot be allowed because one remedy             would
necessarily cancel each other (Id.).
 It is the danger of failure of justice without the writ, not the mere absence of all
legal remedies, that must determine the propriety of certiorari (Seven Brothers
Shipping Corp. vs. CA, 246 SCRA 33 [1995]).    
       In many instances, the Supreme Court has treated a petition for review
under Rule 45 as a petition for certiorari under Rule 65, where the subject of the
recourse was one of jurisdiction, or the act complained of was perpetrated by a
court with grave abuse or discretion amounting to lack or excess of jurisdiction
but when the petition denominated as a Rule 45 petition neither involves any
issue of jurisdiction nor a grave abuse of discretion on the part of the Court of
Appeals, it should be dismissed outright (China Banking Corporation vs. Asian
Construction and Development Corporation, G.R. No. 158271, April 8, 2008).
       Motion for reconsideration required before certiorari can be filed.. 
Exceptions (Miguel vs. JCT Group, Inc., 458 SCRA 529 [2005]; Tan, Jr. vs.
Sandiganbayan, 292 SCRA 452; Marawi Marantao General Hospital vs. CA, 349
SCRA 321).                        
       Although the RTC has the authority to annul final judgments, such authority
pertains only to final judgments rendered by inferior courts and quasi-
judicial bodies of equal ranking with such inferior courts. Given that DARAB
decisions are appealable to the CA, the inevitable conclusion is that the DARAB
is a co-equal body with the RTC and its decisions are beyond the RTC’s
control (Springfield Development Corp. vs. Presiding Judge of RTC of Misamis
Oriental, Branch 40, G.R. No. 142628, February 6, 2007).
  Rule 43 refers to appeals from judgments or orders of quasi-judicial agencies
in the exercise of their quasi-judicial functions. On the other hand, Rule 65 of the
Rules of Court specifically governs special civil actions for certiorari, Section 4 of
which provides that if the petition involves acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or the rules, the petition shall be
filed in and cognizable only by the CA. (Public Hearing Committee of the Laguna
Lake Development Authority  vs. SM Prime Holdings, Inc., G.R. No. 170599,
September  22,   2010)
                                                 PROHIBITION
  The writ of prohibition does not lie against the exercise of a quasi-
legislative function. Since in issuing the questioned IRR of R.A. No. 9207, the
National Government Administration
Committee was not exercising judicial, quasi-judicial or ministerial function, which
is the scope of a petition for prohibition under Section 2, Rule 65 of the 1997
Rules of Civil Procedure, the instant prohibition should be dismissed outright.
Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an
ordinary action for its nullification, an action which properly falls under the
jurisdiction of the Regional Trial Court. (Holy Spirit Homeowners Association vs.
Defensor, G.R. No. 163980, August 3, 2006).
    As a rule, the writ of prohibition will not lie to enjoin acts already done. 
However, as an exception to the rule on mootness, courts will decide a question
otherwise moot if it is capable of repetition yet evading review (Funa vs. Executive
Secretary Eduardo R. Erminta,   G.R. No. 184740, 2010 February 11, 2010).
                                                        MANDAMUS
 A writ of mandamus commanding the respondents to require PUVs to use CNG is
unavailing.  Mandamus is available only to compel the doing of an act
specifically enjoined by law as a duty. Here, there is no law that mandates the
respondents LTFRB and the DOTC to order owners of motor vehicles to use
CNG.  At most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii),
Section 4 “to grant preferential and exclusive Certificates of Public Convenience
(CPC) or franchises to operators of NGVs based on the results of the DOTC
surveys”  (Henares, Jr. vs. Land Transportation Franchising and Regulatory
Board, G.R. No. 158290, October 23, 2006
 Mandamus applies as a remedy only where petitioner’s right is founded
clearly in law and not when it is doubtful.The writ will not be granted where its
issuance would be unavailing, nugatory, or useless.  If the law imposes a duty
upon a public officer and gives him the right to decide how or when the duty shall
be performed, such duty is discretionary and not ministerial.
      There is no doubt that under E.O. No. 826, Administrative Order No. 003,
Series of 1981, and Administrative Order No. 002, Series of 1991, petitioner is
vested with discretion on whether or not to grant an application for the
establishment of a new plant, the expansion of capacity, the relocation or
upgrading of efficiencies of such desiccated coconut processing plant.  Relative
to the renewal of a certificate of registration, petitioner may refuse a registration
unless the applicant has complied with the procedural and substantive
requirements for renewal.  However, once the requirements are complied with,
the renewal of registration becomes a ministerial function of petitioner.(Philippine
Coconut Authority vs. Primex Coco Products, Inc., G.R. No. 163088, July 20,
2006 )
    For a writ of mandamus to issue, the applicant must have a well-defined,
clear, and certain legal right to the thing demanded.  The corresponding duty
of the respondent to perform the required act must be equally clear.  No such
clarity exists here; neither does petitioner’s right to demand a revision of her
examination results.  And despite petitioner’s assertions that she has not made
any demand for re-correction, the most cursory perusal of her Second Amended
Petition and her prayer that the respondents “make the appropriate revisions on
the results of her examination” belies this claim. (Antolin vs. Domondon, G.R. No.
165036, July 5, 2010)
    A writ of mandamus lies to compel a judge to issue a writ of execution when
the judgment had already become final and executory and the prevailing party is
entitled to the same as a matter of right  (FGU Insurance Corp. vs. Regional Trial
Court of Makati City, G.R. No. 161282, 2011 February 23, 2011).
    The duty being enjoined in mandamus must be one according to the terms
defined in the law itself. Thus, the recognized rule is that, in the performance of
an official duty or act involving discretion, the corresponding official can only be
directed by mandamus to act, but not to act one way or the other. This is the end
of any participation by the Court, if it is authorized to participate at all.
(Metropolitan Manila Development Authority vs. Concerned Residents Of Manila
Bay, G.R. Nos. 171947-48, 2011 February 15, 2011)
    Established is the procedural law precept that a writ of mandamus generally
lies to compel the performance of a ministerial duty, but not the performance of
an official act or duty which necessarily involves the exercise of judgment.  Thus,
when the act sought to be performed involves the exercise of discretion, the
respondent may only be directed by mandamus to act but not to act in one way
or the other. It is, nonetheless, also available to compel action, when refused, in
matters involving judgment and discretion, but not to direct the exercise of
judgment in a particular manner.  However, this rule admits of exceptions. 
Mandamus is the proper remedy in cases where there is gross abuse of
discretion, manifest injustice, or palpable excess of authority. (Froilan Dejuras vs.
Villa, G.R. No. 173428, November 22, 2010)
                                           INTERPLEADER  - Rule 62
     Are petitioners entitled to a writ of possession after being adjudged (in the
interpleader case) as the proper parties to buy the subject property, considering
that a “deed of sale” has already been executed in their favor? No. A writ of
possession shall issue only in the following instances: (1) land registration
proceedings; (2) extrajudicial foreclosure of mortgage of real property; (3) judicial
foreclosure of property provided that the mortgagor has possession and no third
party has intervened, and (4) execution sales. Here, petitioners seek the writ as a
consequence of the trial court’s decision ordering the execution of a contract of
sale/contract to sell in their favor. The writ does not lie in such a case. It was
clear that, at that point, petitioners were not yet the owners of the property. The
execution of the “deed of sale” in their favor was only preliminary to their eventual
acquisition of the property. (Maglente vs. Padilla,  G.R. No. 148182, March 7,
2007)
      Petitioners did not pay rentals because ostensibly they did not know to whom
payment should be made.  However, this did not justify their failure to pay,
because if such were the case, they were not without any remedy. They should
have availed of the provisions of the Civil Code of the Philippines on the
consignation of payment and of the Rules of Court on interpleader.    An action
for interpleader is proper when the lessee does not know to whom payment of
rentals should be made due to conflicting claims on the property (or on the right
to collect).  The remedy is afforded not to protect a person against double liability
but to protect him against double vexation in respect of one liability. Notably,
instead of availing of the above remedies, petitioners opted to refrain from
making payments. (Pasricha vs. Don Luis Dison Realty, Inc., G.R. No. 136409,
March 14, 2008)
DECLARATORY RELIEF  - Rule 63
  Rule 63 covers two types of actions:  (a) petition  for declaratory relief, and (b)
similar remedies.  The similar remedies are: (a) action for reformation of
instrument;  (b) action to quiet title; and (c) action to consolidate ownership under
Art; 1607 of the Civil Code.
Jurisdiction
   A petition for declaratory relief should be brought “in the appropriate regional
trial court.” The purpose of the petition is to ask the court to determine any
question of construction or validity arising from the sujbect matter thereof , and
for the declaration of rights and duties thereunder. Hence, the subject matter of
such petition raises issues which are not capable of pecuniary estimation and
must be filed in the RTC (Sec. 19 [1], BP 129; Sec. 1, Rule 63).    It would be
error to file the petition the petition with the Supreme Court which has no original
jurisdiction to entertain a petition for declaratory relief (Ortega vs. Quezon City
Government, G.R. No. 161400, September 2, 2005).
    However, where the action is for quieting of title which is a similar remedy
under the second paragraph of Sec. 1 of Rule 63, the jurisdiction will depend
upon the assessed value of the property.
    Petitioners' contention that this case is one that is incapable of pecuniary
estimation under the exclusive original jurisdiction of the RTC pursuant to Section
19(1) of B.P. 129 is erroneous. Actions for reconveyance of or for
cancellation of title to or to quiet title over real property are actions that fall
under the classification of cases that involve "title to, or possession of, real
property, or any interest therein."
  Section 19(2) of B.P. 129, as amended by R.A. No. 7691, is clear that the RTC
shall exercise jurisdiction "in all civil actions which involve the title to, or
possession of, real property, or any interest therein, where the assessed value of
the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil
actions in Metro Manila, where such value exceeds Fifty thousand pesos
(P50,000.00)." The law is emphatic that in determining which court has
jurisdiction, it is only the assessed value of the realty involved that should
be computed. In this case, there is no dispute that the assessed values of the
subject properties as shown by their tax declarations are less than P20,000.00. 
Clearly, jurisdiction over the instant cases belongs not to the RTC but to the
MTC. (Concha, Sr. vs.  Lumocso,  G.R. No. 158121, December 12, 2007).
    Under Section 1, Rule 63, a person must file a petition for declaratory
relief before breach or violation of a deed, will, contract, other written
instrument, statute, executive order, regulation, ordinance or any other
governmental regulation. Petitioners’ actual suspension of payments defeated
the purpose of the action to secure an authoritative declaration of their supposed
right to suspend payment, for their guidance. The purpose of the action is to
secure an authoritative statement of the rights and obligations of the parties
under a statute, deed, contract, etc., for their guidance in its enforcement or
compliance and not to settle issues arising from its alleged breach.    Where the
law or contract has already been contravened prior to the filing of an action
for declaratory relief, the court can no longer assume jurisdiction over the
action. Under such circumstances, inasmuch as a cause of action has already
accrued in favor of one or the other party, there is nothing more for the court to
explain or clarify, short of a judgment or final order (Martelino vs. National Home
Mortgage Finance Corporation,  G.R. No. 160208, June 30, 2008 )
     Gov. Garcia’s petition for declaratory relief should have been dismissed
because it was instituted after the COA had  already  found  her  in  violation  of 
Sec. 22(c) of R.A. No. 7160. One of the important requirements for a petition for
declaratory relief under Sec. 1, Rule 63 of the Rules of Court is that it be
filed before breach or violation of a deed, will, contract, other written
instrument, statute, executive order, regulation, ordinance or any other
governmental regulation. Thus, the trial court erred in assuming jurisdiction over
the action despite the fact that the subject thereof had already been breached by
Gov. Garcia prior to the filing of the action.  Nonetheless, the conversion of the
petition into an ordinary civil action is warranted under Sec. 6, Rule 63 of the
Rules of Court. (Quisumbing vs.  Garcia, G.R. No. 175527, December 8, 2008
En Banc)
    The requisites of an action for declaratory relief are:  1]  the subject matter of
the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance; 2]  the terms of said documents and
the validity thereof are doubtful and require judicial construction; 3]  there must
have been no breach of the documents in question; 4] there must be an actual
justiciable controversy or the “ripening seeds” of one between persons whose
interests are adverse; 5] the issue must be ripe for judicial determination; and 6]
adequate relief is not available through other means or other forms of action or
proceeding. (Ferrer  vs. Roco, G.R. No. 174129, July 5, 2010)
    There is a marked difference between the reliefs sought under an action for
declaratory relief and an action for injunction. While an action for declaratory
relief seeks a declaration of rights or duties, or the determination of any question
or validity arising under a statute, executive order or regulation, ordinance, or any
other governmental regulation, or under a deed, will, contract or other written
instrument, under which his rights are affected, and before breach or violation, an
action for injunction ultimately seeks to enjoin or to compel a party to perform
certain acts.  [Philippine Deposit Insurance Corporation (PDIC) vs. Philippine
Countryside Rural Bank, Inc., G.R. No. 176438, January 24, 2011)
    The concept of a cause of action in ordinary civil actions does not apply to
quieting of title.  In declaratory relief, the subject-matter is a deed, will, contract or
other written instrument, statute, executive order or regulation, or ordinance.  The
issue is the validity or construction of these documents.  The relief sought is the
declaration of the petitioner’s rights and duties thereunder. Being in the nature of
declaratory relief, this special civil action presupposes that there has yet been no
breach or violation of the instruments involved.(Republic of the Philippines vs.
Mangotara, G.R. No. 170375, July 7, 2010)
CERTIORARI AGAINST COMELEC AND COA  - Rule  64
    This provision (Art. IX, Sec. 7 of the Constitution) means final orders, rulings
and decisions of the COMELEC rendered in the exercise of its adjudicatory or
quasi-judicial powers. This decision must be a final decision or resolution of the
Comelec en banc, not of a division, certainly not an interlocutory order of a
division.  The Supreme Court has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections. The mode by which a decision, order or ruling of the
Comelec en banc may be elevated to the Supreme Court is by the special civil
action of certiorari under Rule 65, in relation to Rule 64 of the 1997 Rules of Civil
Procedure, which provides:  SEC. 2. Mode of review. – A judgment or final order
or resolution of the Commission on Elections and the Commission on Audit may
be brought by the aggrieved party to the Supreme Court on certiorari under Rule
65, except as hereinafter provided.” (Jumamil vs. Comelec, G.R. No. 167989-93,
March 6, 2007  En Banc)
.  While original jurisdiction of the Supreme Court over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus is shared with the
Court of Appeals and the RTCs, a direct invocation of the Supreme Court’s
jurisdiction is allowed only when there are special and important reasons
therefor, clearly and especially set out in the petition.  Among the cases we have
considered sufficiently special and important to be exceptions to the rule, are
petitions for certiorari, prohibition, mandamus and quo warranto against our
nation’s lawmakers when the validity of their enactments is assailed.  The
present petition is of this nature; its subject matter and the nature of the issues
raised – among them, whether legislative reapportionment involves a division of
Cagayan de Oro City as a local government unit – are reasons enough for
considering it an exception to the principle of hierarchy of courts.   Additionally,
the petition assails as well a resolution of the COMELEC en banc issued to
implement the legislative apportionment that R.A. No. 9371 decrees.  As an
action against a COMELEC en banc resolution, the case falls under Rule 64
of the Rules of Court that in turn requires a review by this Court via a Rule
65 petition for certiorari.  For these reasons, we do not see the principle of
hierarchy of courts to be a stumbling block in our consideration of the present
case. (Bagabuyo vs. Comelec,  G.R. No. 176970, December 8, 2008 En Banc).
QUO WARRANTO    -   Rule 66
    Actions of quo warranto against persons who usurp an office in a corporation,
which were formerly cognizable by the Securities and Exchange Commission
under PD 902-A, have been transferred to the courts of general jurisdiction.  But,
this does not change the fact that Rule 66 of the 1997 Rules of Civil Procedure
does not apply to quo warranto cases against persons who usurp an office
in a private corporation (Calleja vs. Panday, G.R. No. 168696. February 28,
2006).
     Quo warranto proceedings determine the right of a person to the use or
exercise of a franchise or an office and to oust the holder from its enjoyment, if
the latter’s claim is not well-founded, or if he has forfeited his right to enjoy the
privilege
     In the instance in which the petition for quo warranto is filed by an individual in
his own name, he must be able to prove that he is entitled to the controverted
public office, position, or
franchise; otherwise, the holder of the same has a right to the undisturbed
possession thereof.  In actions for quo warranto to determine title to a public
office, the complaint, to be sufficient in form, must show that the plaintiff is
entitled to the office. An action for quo warranto may be dismissed at any
stage when it becomes apparent that the plaintiff is not entitled to the
disputed public office, position or franchise.  Hence, the RTC is not
compelled to still proceed with the trial when it is already apparent on the face of
the petition for quo warranto that it is insufficient.  The RTC may already dismiss
said petition at this point. (Feliciano vs.  Villasin, G.R. No. 174929, June 27,
2008 En Banc).
EXPROPRIATION   -  Rule 67
    Rep. Act No. 8974 mandates immediate payment of the initial just
compensation prior to the issuance of the writ of possession in favor of the
government. RA 8974 requires that  the government make a direct payment to
the property owner before the writ may issue. Such payment is based on the
zonal valuation of the BIR in the case of land, the value of the improvements or
structures under the replacement cost method, or if no such valuation is available
and in cases of utmost urgency, the proffered value of the property to be seized.
It is the plain intent of RA 8974 to supersede the system of deposit under Rule 67
with the scheme of “immediate payment” in cases involving national government
infrastructure projects (Republic vs. Gingoyon, G.R. No. 166249, December 19,
2005).
    Motion to dismiss is not permitted in a complaint for expropriation.
Significantly, the Rule allowing a defendant in an expropriation case to file a
motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil
Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly
mandates that any objection or defense to the taking of the property of a
defendant must be set forth in an answer. (Masikip vs. City of Pasig, G.R. No.
136349.  January 23, 2006)
     Before a local government unit may enter into the possession of the property
sought to be expropriated, it must (1) file a complaint for expropriation sufficient
in form and substance in the proper court and (2) deposit with the said court at
least 15% of the property's fair market value based on its current tax
declaration. The law (RA 7160) does not make the determination of a public
purpose a condition precedent to the issuance of a writ of possession.
( Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24,
2008 ).
     A local government unit cannot authorize an expropriation of private
property through a mere resolution of the lawmaking body. Sec. 19 of RA
7160 expressly requires an ordinance for the purpose and a resolution that
merely expresses the sentiment of the municipal
council will not suffice (Beluso vs. the Municipality of Panay Capiz, G.R. No.
153974, August 7, 2006).
Just compensation, when determined
   Where the taking preceded the filing of the complainf for expropriation, just
compensation must be determined at the time the expropriating authority takes
possession thereof and not as of the institution of the proceedings (Republic of
the Philippines vs. Sarabia, G.R. No. 157847, August 25, 2005, 468 SCRA
142)..Where the filing of the complaint preceded the plaintiff’s entry into the
property, the just compensation is to be ascertained as of the time of said fiing
(National Power Corporation vs. De la Cruz, G.R. No. 156093, February 2,
2007).
The issue of ownership should be litigated in the expropriation court.  The
court hearing the expropriation case is empowered to entertain the conflicting
claims of ownership of the condemned property and adjudge the rightful owner
thereof, in the same expropriation case.  This is due to the intimate relationship
of the issue of ownership with the claim for the expropriation payment. 
Petitioners’ objection regarding respondents’ claim over the expropriation
payment should have been brought up in the expropriation court as opposition to
respondent’s motion.  While we do not know if such objection was already made,
the point is that the proper venue for such issue is the expropriation court, and
not here where a different cause of action (specific performance) is being
litigated. (Heirs of Mario Pacres vs. Heirs of Cecilia Ygoña, G.R. No. 174719,
May 5, 2010)
FORECLOSURE OF REAL ESTATE MORTGAGE  - Rule 68
 A writ of possession is “a writ of execution employed to enforce a
judgment to recover the possession of land. It commands the sheriff to enter
the land and give possession of it to the person entitled under the judgment.”
      A writ of possession may be issued under the following instances: (1) in land
registration proceedings under Section 17 of Act 496; (2) in a judicial foreclosure,
provided the debtor is in possession of the mortgaged realty and no third person,
not a party  to the foreclosure suit, had intervened;  (3) in an extrajudicial
foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as
amended by Act No. 4118; and (4) in execution sales (last paragraph of Section
33, Rule 39 of the Rules of Court).
  The present case falls under the third instance. Under Section 7 of Act No.
3135, as amended by Act No. 4118, a writ of possession may be issued either
(1) within the one-year redemption period, upon the filing of a bond, or (2) after
the lapse of the redemption period, without need of a bond.  (PNB vs. Sanao
Marketing Corporation, G.R. No. 153951, July 29, 2005)
An action to invalidate the mortgage or the foreclosure sale is not a valid
ground to oppose issuance of writ of possession.
    As a rule, any question regarding the validity of the mortgage or its foreclosure
cannot be a legal ground for refusing the issuance of a writ of possession.
Regardless of whether or not there is a pending suit for annulment of the
mortgage or the foreclosure itself, the purchaser is
entitled to a writ of possession, without prejudice of course to the eventual
outcome of said case. (Sps. Arquiza vs. Court of Appeals, G.R. No. 160479,
June 8, 2005)
   The venue of the action for the nullification of the foreclosure sale is
properly laid with the Malolos RTC although two of the properties together
with the Bulacan properties are situated in Nueva Ecija.  The venue of real
actions affecting properties found in different provinces is determined by the
SINGULARITY or PLURALITY of the transactions involving said parcels of land.
Where said parcels are the object of one and the same transaction, the venue is
in the court of any of the provinces wherein a parcel of land is situated (United
Overseas Bank Phils. (formerly Westmont Bank) vs. Rosemoor Mining &
Development Corp., G.R. Nos. 159669 & 163521, March 12, 2007).
               Rule 68 governs the judicial foreclosure of mortgages.  Extra-judicial
foreclosure of mortgages, which was what transpired in the case at bar, is
governed by Act No. 3135, as amended by Act No. 4118, Section 6 of Republic
Act No. 7353, Section 18 of Republic Act No. 7906, and Section 47 of Republic
Act No. 8791. A.M. No. 99-10-05-0, issued on  December 14, 1999, provides for
the procedure to be observed in the conduct of an extrajudicial foreclosure sale. 
. 
     Unlike Rule 68, which governs judicial foreclosure sales, neither Act No.
3135 as amended, nor A.M. No. 99-10-05-0 grants to junior encumbrancers
the right to receive the balance of the purchase price.  The only right given to
second mortgagees in said issuances is the right to redeem the foreclosed
property pursuant to Section 6 of Act No. 3135, as amended by Act No. 4118 
(Monzon  vs. Relova,  G.R. No. 171827, September 17, 2008).
            A mortgage-creditor may, in the recovery of a debt secured by a real
estate mortgage, institute against the mortgage-debtor either a personal
action for debt or a real action to foreclose the mortgage.  These remedies
available to the mortgage-creditor are deemed alternative and not
cumulative.  An election of one remedy operates as a waiver of the other.  
Hence, a remedy is deemed chosen upon the filing by the mortgage-creditor of
the suit for collection or upon his filing of the complaint in an action for
foreclosure of mortgage, pursuant to the provisions of Rule 68 of the Rules of
Court.
            ,The impliedly instituted civil action in Criminal Cases No. 612-90 to No.
615-90 for violation of Batas Pambansa Blg. 22 was, in effect, a collection suit or
suit for the recovery of the mortgage-debt since the dishonored checks involved
in the said criminal cases were issued by respondent Eulogio to petitioner for the
payment of the same loan secured by the Deed of Real Estate Mortgage.  This
precludes the petitioner from subsequently availing himself of the action to
foreclose the mortgaged property (Chieng vs. Spouses  Santos, G.R. No.
169647, August 31, 2007).
     Where the mortgage creditor chooses the remedy of foreclosure and the
proceeds of the foreclosure sale are insufficient to cover the debt, the
mortgagee is entitled to claim the deficiency from the debtor. The law gives
the mortgagee the right to claim for the deficiency resulting from the price
obtained in the sale of the property at public auction and the outstanding
obligation at the time of the foreclosure proceedings.  This rule is based on the
principle earlier mentioned that the mortgage is only a security and not a
satisfaction of the mortgagor’s entire obligation.  (Suico Rattan & Buri Interiors,
Inc. vs. Court of Appeals, G.R. No. 138145, June 15, 2006)
    A writ of preliminary injunction is issued to prevent an extrajudicial
foreclosure, only upon a clear showing of a violation of the mortgagor’s
unmistakable right. Unsubstantiated allegations of denial of due process and
prematurity of a loan are not sufficient to defeat the mortgagee’s unmistakable
right to an extrajudicial foreclosure.(Selegna Management and Development
Corporation vs. UCPB, G.R. No. 165662, May 31, 2006)
   Filing fee in extrajudicial foreclosure  
     The applicant in extrajudicial foreclosure covering properties located in
different provinces is required to pay only one filing fee regardless of the
number of properties to be foreclosed so long as the application covers only one
transaction or indebtedness. The venue however of the extrajudicial foreclosure
proceedings is the place where each of the mortgaged properties is located 
(Benguet Management Corp. vs. Court of Appeals, G.R. No. 153571, Sept. 16,
2003)
   When writ of possession not ministerial duty  Unlike a judicial foreclosure of
real estate mortgage under Rule 68 of the Rules of Court where an action for
foreclosure is filed before the RTC where the mortgaged property or any part
thereof is situated, any property brought within the ambit of Act 3135 is
foreclosed by the filing of a petition, not with any court of justice, but with the
office of the sheriff of the province where the sale is to be made. As such, a third
person in possession of an extrajudicially foreclosed property, who claims a
right superior to that of the original mortgagor, is given no opportunity to be heard
on his claim. It stands to reason, therefore, that such third person may not be
dispossessed on the strength of a mere ex parte possessory writ, since to
do so would be tantamount to his summary ejectment, in violation of the
basic tenets of due process.
   The Court cannot sanction a procedural shortcut. To enforce the writ against
petitioner, an unwitting third party possessor who took no part in the foreclosure
proceedings, would amount to the taking of real property without the benefit of
proper judicial intervention. Hence, it was not a ministerial duty of the trial court
under Act 3135 to issue a writ of possession for the ouster of petitioner from the
lot subject of this instant case, particularly in light of the latter’s opposition, claim
of ownership and rightful possession of the disputed properties. (Villanueva  vs.
Cherdan Lending Investors Corporation, G.R. No. 177881, October 13, 2010;
Dayot vs. Shell Chemical Company, (Phils.), Inc.,  G.R. No. 156542, June 26,
2007)

                                       PARTITION   -  Rule 69
     In an action for partition, all other persons interested in the property
shall be joined as defendants.  Not only the co-heirs but also all persons
claiming interests or rights in the property subject of partition are indispensable
parties. In the instant case, it is the responsibility of Panfilo as plaintiff in Civil
Case No. 15465 to implead all indispensable parties, that is, not only Faustino
and Danilo but also respondents in their capacity as vendees and donees of the
subject fishponds. Without their presence in the suit the judgment of the court
cannot attain real finality against them.  Being strangers to the first case, they are
not bound by the decision rendered therein; otherwise, they would be deprived of
their constitutional right to due process.
     In a complaint for partition, the plaintiff seeks, first, a declaration that he
is a co-owner of the subject properties; and second, the conveyance of his
lawful shares. An action for partition is at once an action for declaration of co-
ownership and for segregation and conveyance of a determinate portion of the
properties involved. (Abalos vs.  Bucal, G.R. No. 156224, February 19, 2008 ).
     Partition is the proper remedy for compulsory or legal heirs to get their
legitime or share of the inheritance from the decedent.  An action for partition
is at once an action for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the properties involved.  Being a
compulsory heir of Don Fabian, Tirso has the right to compel partition of the
properties comprising the intestate estate of Don Fabian as a measure to get his
hereditary share.  His right as an heir to a share of the inheritance covers all the
properties comprising the intestate estate of Don Fabian at the moment of his
death.  Before partition and eventual distribution of Don Fabian’s intestate estate,
a regime of co-ownership among the compulsory heirs existed over the undivided
estate of Don Fabian.  Being a co-owner of that intestate estate, Tirso’s right over
a share thereof is imprescriptible. Contrary to petitioners’ stance, reconveyance
is not the proper remedy available to Tirso. Tirso is not asserting total ownership
rights over the subject properties, but only insofar as his legitime  from the
intestate estate of his father, Don Fabian, is concerned.   (Monteroso vs. Court of
Appeals, G.R. No. 105608, April 30, 2008).
             An action for partition implies that the property is still owned in common.
Considering that the heirs had already executed a deed of extrajudicial
settlement and waived their shares in favor of respondent, the properties are no
longer under a state of co-ownership; there is nothing more to be partitioned, as
ownership had already been merged in one person. (Mangahas vs. Brobio, G.R.
No. 183852, October 20, 2010)
Right to Partition [Art. 494, CC]
Definition of Partition: Separation, division and assignment of a thing held in common
among those to whom it may belong. Partition may be inferred from circumstances
sufficiently strong to support the presumption. [Maestrado v. Court of Appeals, 327
SCRA 678 (2000)]
General Rule 1. No co-owner shall be obliged to remain in the co-ownership; and
2. Each co-owner may demand at any time the partition of the thing owned in common,
insofar as his share is concerned. [Art. 494 par.1, CC]
Note: An assignee of a co-owner may take part in the division of the thing owned in
common and object to its being effected without their concurrence. But they cannot
impugn any partition already executed unless there has been fraud or in case it was
made notwithstanding a formal opposition to prevent it. [Budlong v. Pondoc, 79 SCRA
24 (1977)]
Limitations • An agreement to keep the thing undivided for a certain period of time, not
exceeding 10 years, shall be valid. [Art. 494, CC]
• A donor or testator may prohibit partition for a period which shall not exceed 20
years. [Art. 494, CC]
• Neither shall there be any partition when it is prohibited by law. [Art. 494, CC]
• When physical partition would render the thing unserviceable for the use for which it
is intended. [Art. 495, CC]
Exception: 1.If it is indivisible (physical partition not possible), allot to one of the co-
owners who shall indemnify others, or have it sold and divide the process from the sale.
[Art. 498, CC]
2. When another co-owner has possessed the property as exclusive owner and for a period sufficient to acquire
it by prescription.
FORCIBLE ENTRY AND UNLAWFUL DETAINER   -  Rule 70
 Real and in personam actions 
  1. Forcible entry and unlawful detainer actions are actions affecting possession
of real property and hence are real actions. Venue is the place where the
property subject of the action is situated (Sec. 1, Rule 4).
  2. They are also actions in personam because the plaintiff seeks to enforce a
personal obligation on the defendant  to vacate the property subject of the action.
restore physical possession thereof to the plaintiff, and pay actual damages by
way of reasonable compensation for his use or occupation of the property
(Domagas vs. Jensen, G.R. No.  158407, January 17, 2005 ).
   In forcible entry or unlawful detainer cases, the only damage that can be
recovered is thefair rental value or the reasonable compensation for the use
and occupation of the leased property. The reason for this is that the only
issue raised in ejectment cases is that of rightful possession; hence, the
damages which could be recovered are those which the plaintiff could have
sustained as a mere possessor, or those caused by the loss of the use and
occupation of the property, and not the damages which he may have suffered but
which have no direct relation to his loss of material possession. (Dumo vs.
Espinas, G.R. No. 141962, January 25, 2006)
   The judgment rendered in an action for unlawful detainer shall be conclusive
with respect to the possession only and shall in no wise bind the title or affect
the ownership of the land or building.  Such judgment would not bar an action
between the same parties respecting title to the land or building.  Section 18,
Rule 70 of the Rules of Court provides that when the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. (Roberts vs. Papio, G.R. No.
166714, February 9, 2007)
  Unlawful detainer and forcible entry suits under Rule 70 of the Rules of Court
are designed to summarily restore physical possession of a piece of land or
building to one who has been illegally or forcibly deprived thereof, without
prejudice to the settlement of the parties’ opposing claims of juridical possession
in appropriate proceedings. (Salting vs. Velez, G.R. No. 181930, January 10,
2011)
The sole issue for resolution in an unlawful detainer case is physical or material
possession of the property involved, independent of any claim of ownership by
any of the parties. Where the issue of ownership is raised by any of the parties,
the courts may pass upon the same in order to determine who has the right to
possess the property. The adjudication is, however, merely provisional and would
not bar or prejudice an action between the same parties involving title to the
property. Since the issue of ownership was raised in the unlawful detainer case,
its resolution boils down to which of the parties' respective evidence deserves
more weight. (Esmaquel vs. Sordevilla, G.R. No. 152423, December 15, 2010)
    The avowed objective of actions for forcible entry and unlawful detainer, which
have purposely been made summary in nature, is to provide a peaceful, speedy
and expeditious means of preventing an alleged illegal possessor of property
from unjustly continuing his possession for a long time, thereby ensuring the
maintenance of peace and order in the community; otherwise, the party illegally
deprived of possession might feel the despair of long waiting and decide as a
measure of self-protection to take the law into his hands and seize the same by
force and violence. And since the law discourages continued wrangling over
possession of property for it involves perturbation of social order which must be
restored as promptly as possible, technicalities or details of procedure which may
cause unnecessary delays should accordingly and carefully be
avoided. (Sarmiento vs. Lindayag, A.M. No. MTJ-09-1743 [Formerly A.M. No.
OCA IPI No. 08-1954-MTJ], August 3, 2010)
What are the kinds of action to recover possession of real property?
  (a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria.
Accion interdictal comprises two distinct causes of action namely, forcible entry
(detentacion) and unlawful detainer (desahuico).  In forcible entry, one is
deprived of physical possession of real property by means of force, intimidation,
strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds
possession after the expiration or termination of his right to hold possession
under any contract, express or implied
    The jurisdiction of these two actions, which are summary in nature, lies in the
propermunicipal trial court or metropolitan trial court. Both actions must be
brought within one year from the date of actual entry on the land, in case of
forcible entry, and from the date of last demand, in case of unlawful
detainer.  The issue in said cases is the right to physical possession.
   Accion publiciana is the plenary action to recover the right of possession
which should be brought in the proper regional trial court when dispossession
has lasted for more than one year. It is an ordinary civil proceeding to determine
the better right of possession of realty independently of title.  In other words, if at
the time of the filing of the complaint more than one year had elapsed since
defendant had turned plaintiff out of possession or defendant’s possession had
become illegal, the action will be, not one of  forcible entry or illegal detainer,
but an accion publiciana.  On the other hand, accion reivindicatoria is an action
to recover ownership also brought in the proper regional trial in an ordinary civil
proceeding (Valdez, Jr. vs. Court of Appeals, G.R No. 132424, May 4, 2006)
   Accion publiciana is one for the recovery of possession of the right to
possess. It is also referred to as an ejectment suit filed after the expiration of one
year after the occurrence of the cause of action or from the unlawful withholding
of possession of the realty. (Hilario vs.Salvador G.R. No. 160384, April 29, 2005)
   In forcible entry cases, the prescriptive period is counted from the date
of defendant’s actual entry on the land; in unlawful detainer, from the date
of the last demand to vacate.  Hence, to determine whether the case was filed
on time, there was a necessity to ascertain whether the complaint was one for
forcible entry or unlawful detainer (Canlas vs. Tubil,  G.R. No. 184285,
September 25, 2009).
Does the RTC have jurisdiction over all cases of recovery of possession
regardless of the value of the property involved?
    NO. The doctrine that all cases of recovery of possession or accion publiciana
lies with the regional trial courts regardless of the value of the property — no
longer holds true. As things now stand, a distinction must be made between
those properties the assessed value of which is below P20,000.00, if outside
Metro Manila; and P50,000.00, if within (Quinagoran vs. Court of Appeals,    G.R.
No. 155179. August 24, 2007)
    . Specifically, the regional trial court exercises exclusive original jurisdiction "in
all civil actions which involve  possession of real property." However, if the
assessed value of the real property involved does not exceed P50,000.00 in
Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court
exercises jurisdiction over actions to recover possession of real property (Atuel
vs. Valdez, June 10, 2003, 403 SCRA 517, 528).
      All cases involving title to or possession of real property with an assessed
value of less than P20,000.00 if outside Metro Manila, fall under the original
jurisdiction of the municipal trial court.  (Aliabo v. Carampatan, G.R. No. 128922,
March 16, 2001, 354 SCRA 548, 552).
      A complaint must allege the assessed value of the real property subject of
the complaint or the interest thereon to determine which court has jurisdiction
over the action.  This is because the nature of the action and which court has
original and exclusive jurisdiction over the same is determined by the material
allegations of the complaint, the type of relief prayed for by the plaintiff and the
law in effect when the action is filed, irrespective of whether the plaintiffs are
entitled to some or all of the claims asserted therein. ( Laresma v. Abellana, G.R.
No. 140973, November 11, 2004, 442 SCRA 156; Hilario v. Salvador, G.R. No.
160384, April 29, 2005, 457 SCRA 815).
    A complaint for reconveyance of a parcel of land which involves title to
or interest in real property should allege the assessed value of the land. 
The complaint specified only the market value or estimated value which is
P15,000.00.  In the absence of an assessed value, or in lieu thereof, the
estimated value may be alleged.
     Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value
of the real property does not exceed P20,000.00 or P50,000.00 in Metro Manila)
grants the MTC exclusive jurisdiction over subject case.The nature of an action is
determined not by what is stated in the caption of the complaint but its allegations
and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain
title to real property, it should be filed in the proper court having jurisdiction over
the assessed value of the property subject thereof.(Barangay Piapi vs. Talip, 469
SCRA 409 [2005]).     
       The determining jurisdictional element for the accion reivindicatoria is, as RA
7691 discloses, the assessed value of the property in question. For properties in
the provinces, the RTC has jurisdiction if the assessed value exceeds P20,000,
and the MTC, if the value is P20,000 or below. An assessed value can have
reference only to the tax rolls in the municipality where the property is located,
and is contained in the tax declaration. It is the amount in the tax declaration
that should be consulted and no other kind of value, and as appearing in Exhibit
B, this is P5,950. The case, therefore, falls within the exclusive original
jurisdiction of the Municipal Trial Court of Romblon which has jurisdiction over
the territory where the property is located, and not the court a quo.  (Hilario vs.
Salvador,  G.R. No. 160384. April 29, 2005, 457 SCRA 815)
      The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP
129, as amended by RA 7691) are accion publiciana and reivindicatoria. To
determine which court has jurisdiction over the action, the complaint must
allege the assessed value of the real property subject of the complaint or the
interest thereon.    The complaint does not contain any allegation of the
assessed value of Lot 4-E covered by TCT No. 47171. There is, thus, no showing
on the face of the complaint that the RTC had exclusive jurisdiction over the
action of the respondent. Moreover, as gleaned from the receipt of realty tax
payments issued to the respondent, the assessed value of the property in 1993
was P8,300.00.  Patently then, the Municipal Trial Court of Aloguinsan, Cebu, and
not the Regional Trial Court of Toledo City, had exclusive jurisdiction over the
action of the respondent. Hence, all the proceedings in the RTC, including its
decision, are null and void  (Laresma vs. Abellana, G.R. No. 140973, November 11,
2004, 442 SCRA 156; Aliabo vs. Carampatan, G.R. No. 128922, March 16, 2001, 354
SCRA 548).; Ouano vs. PGTT Int'l. Investment Corporation, ,G.R. No. 134230, July 17,
2002, 384 SCRA 589 ).
  With the modifications introduced by RA No. 7691 in 1994, the jurisdiction of the
first level courts  has been expanded to include jurisdiction over other real
actions where the assessed value does not exceed P20,000, 000, and
P50,000.00 where the action is filed in Metro Manila. The first level courts thus
have exclusive original jurisdiction over accion publiciana and accion
reinvidicatoria where the assessed value of the property  does not exceed the
aforementioned amounts. Accordingly, the jurisdictional element is the
assessed value of the property (Vda. de Barrera vs. Heirs of Legaspi, G.R. No.
174346, September 12, 2008). 
   Accion publiciana is the plenary action to recover the right of possession which
should be brought in the proper regional trial court when dispossession has
lasted for more than one year (Canlas vs. Tubil,  G.R. No. 184285, September
25, 2009).
 Mandatory allegations for the municipal trial court to acquire jurisdiction over
forcible  entry
   First, the plaintiff must allege his prior physical possession of the property.
Second, he must also allege that he was deprived of his possession by force,
intimidation, threat, strategy or stealth. If the alleged dispossession did not
occur by any of these means, the proper recourse is to file not  an action for
forcible entry but a plenary action to recover possession with the Regional Trial
Court (Benguet Corporation vs. Cordillera Caraballo Mission, Inc., G.R. No.155343,
September 2, 2005)..
In order to constitute force that would justify a forcible entry case, the
trespasser does not have to institute a state of war. The act of going to the
property and excluding the lawful possessor therefrom necessarily implies the
exertion of force over the property which is all that is necessary and sufficient to
show that the action is based on the provisions of Section 1, Rule 70 of the Rules
of Court. The words ‘by force, intimidation, threat, strategy or stealth’ include
every situation or condition under which one person can wrongfully enter upon
real property and exclude another, who has had prior possession therefrom 
(Bunyi vs. Factor, G.R. No. 172547, June 30, 2009)
For one to be considered in possession, one need not have actual or
physical occupation of every square inch of the property at all times. 
Possession can be acquired not only by material occupation, but also by the fact
that a thing is subject to the action of one’s will or by the proper acts and legal
formalities established for acquiring such right.  Possession can be acquired by
juridical acts.  These are acts to which the law gives the force of acts of
possession.  Examples of these are donations, succession, execution and
registration of public instruments, and the inscription of possessory information
titles (Id.).
Demand in unlawful detainer
   Petitioner, as vendor, must comply with two requisites for the purpose of
bringing an ejectment suit: (a) there must be failure to pay the installment due or
comply with the conditions of the Contract to Sell; and (b) there must be demand
both to pay or to comply and vacate within the periods specified in Section 2 of
Rule 70, namely: 15 days in case of land and 5 days in case of buildings.  The
first requisite refers to the existence of the cause of action for unlawful detainer,
while the second refers to the jurisdictional requirement of demand in order that
said cause of action may be pursued.   Both demands – to pay installment due or
adhere to the terms of the Contract to Sell and to vacate are necessary to make
the vendee deforciant in order that an ejectment suit may be filed. It is the
vendor's demand for the vendee to vacate the premises and the vendee's
refusal to do so which makes unlawful the withholding of the possession.
Such refusal violates the vendor's right of possession giving rise to an
action for unlawful detainer  (Larano vs. Sps. Calendacion, G.R. No. 158231,
June 19, 2007).
Possession by tolerance becomes unlawful from the time of demand to
vacate.
     Petitioner’s cause of action for unlawful detainer springs from   respondents’
failure to vacate the questioned premises upon his demand sometime in 1996. 
Within one (1) year therefrom, or on November 6, 1996, petitioner filed the
instant complaint.
            Possession by tolerance is lawful, but such possession becomes unlawful
when the possessor by tolerance refuses to vacate upon demand made by the
owner. (Santos vs. Sps. Ayon, G.R. No. 137013, May 6, 2005)
Where the period of the lease has expired and several demands were sent
to the lessee to vacate, when should the one year period to file unlawful
detainer be reckoned? From the date of the original demand or from the
date of the last demand?
   From the date of the original demand if the subsequent demands are merely in
the nature of reminders or reiterations of the original demand.
   Demand or notice to vacate is not a jurisdictional requirement when the action
is based on the expiration of the lease.. The law requires notice to be served only
when the action is due to the lessee’s failure to pay or the failure to comply with
the conditions of the lease. The one-year period is thus counted from the date of
first dispossession. The allegation that the lease was on a month-to-month basis
is tantamount to saying that the lease expired every month. Since the lease
already expired mid-year in 1995, as communicated in petitioners’ letter dated
July 1, 1995, it was at that time that respondent’s occupancy became unlawful.
(Racaza vs. Gozum, June 8, 2006, 490 SCRA 313)
 As a general rule, an ejectment suit cannot be abated or suspended by the
mere filing before the regional trial court (RTC) of another action raising
ownership of the property as an issue. As an exception, however, unlawful
detainer actions may be suspended even on
appeal, on considerations of equity, such as when the demolition of petitioners'
housewould result from the enforcement of the municipal circuit trial court
(MCTC) judgment.(Amagan vs. Marayag, G.R. No. 138377, February 28, 2000)
Even if RTC judgments in unlawful detainer cases are immediately
executory (under Sec. 21 of Rule 70), preliminary injunction may still be
granted.  There need only be clear showing that there exists a right to be
protected and that the acts against which the writ is to be directed violate said
right.(Benedicto vs. CA, G.R. No. 157604, October 19, 2005)
CONTEMPT   -  Rule 71
     Contempt of court is “a defiance of the authority, justice or dignity of the court:
such conduct as tends to bring the authority and administration of the law into
disrespect or to interfere with or prejudice parties litigants or their witnesses
during litigation.” Succinctly, it is the despising of the authority, justice, or dignity
of the court.  Rule 71 provides for two forms of contumacious acts – direct and
indirect.
   A willful and deliberate violation of the rule against forum shopping is a ground
for summary dismissal of the case, and may also constitute direct
contempt.  (Philippine Deposit Insurance Corporation (PDIC) vs. Philippine
Countryside Rural Bank, Inc., G.R. No. 176438, January 24, 2011)
    An order of direct contempt is not immediately executory or enforceable. The
contemnor must be afforded a reasonable remedy to extricate or purge himself of
the contempt. Where the person adjudged in direct contempt by any court avails
of the remedy of certiorari or prohibition, the execution of the judgment shall be
suspended pending resolution of such petition provided the contemnor files a
bond fixed by the court which rendered the judgment and conditioned that he will
abide by and perform the judgment should the petition be decided against
him. (Rodriguez vs. Blancaflor, G.R. No. 190171, March 14, 2011)
     Respondent Judge’s blunder was compounded when she immediately cited
complainant in contempt of court and issued the bench warrant without requiring
the latter to explain the reason for his non-appearance and non-compliance with
a standing order. Under Rule 71 of the Rules of Court, complainant’s alleged
disobedience is an indirect contempt the punishment for which requires
that a respondent should be first asked to show cause why he should not
be punished for contempt.
              Respondent also abused her contempt powers. If at all, complainant
was guilty of indirect contempt and not direct contempt.  For not affording
complainant the opportunity to explain why he should  not  be  cited  in 
contempt,  she  blatantly disregarded Rule 71 of the Rules of Court  (Tabujara
vs. Judge Asdala, A.M. No. RTJ-08-2126 [Formerly OCA I.P.I. No. 08-2896-
RTJ], January 20, 2009 Jan 20, En Banc)
    Indirect contempt refers to contumacious acts perpetrated outside of the
sitting of the court and may include misbehavior of an officer of a court in the
performance of his official duties or in his official transactions, disobedience of or
resistance to a lawful writ, process, order, judgment, or command of a court, or
injunction granted by a court or a judge, any abuse or any unlawful
interference with the process or proceedings of a court not constituting direct
contempt, or any improper conduct tending directly or indirectly to impede,
obstruct or degrade the administration of justice.
            Before one may be convicted of indirect contempt, there must be
compliance with the following requisites: (a) a charge in writing to be filed;
(b) an opportunity for respondent to comment thereon within such period
as may be fixed by the court; and (c) an opportunity to be heard by himself
or by counsel. (Tokio  Marine  Malayan Insurance Company Inc. vs. 
Valdez,  G.R. No. 150107, January 28, 2008).
    A person may be charged with indirect contempt only by either of two
alternative ways, namely: (1) by a verified petition, if initiated by a party; or (2) by
an order or any other formal charge requiring the respondent to show cause why
he should not be punished for contempt, if made by a court against which the
contempt is committed. In short, a charge of indirect contempt must be initiated
through a verified petition, unless the charge is directly made by the court against
which the contemptuous act is committed (Mallari vs. Government Service
Insurance System, G.R. No. 157659, January 25, 2010)
    Use of falsified and forged documents constitutes indirect  contempt not
direct contempt ( Judge Dolores Espanol vs.  Atty. Benjamin Formoso, G.R.
No. 150949, June 21, 2007).