1997 Rules on Civil Procedure Rule 13 – Filing and Service of Pleadings,

2001 Edition < DRAFT COPY; Please check for errors > Judgments and Other Papers

Rule 03
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS

Section 1. Coverage. This Rule shall govern the filing of all pleadings and
other papers, as well as the service thereof, except those for which a different
mode of service is prescribed. (n)

As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings
“except those for which a different mode of service is prescribed.” An example of the exception is the
service of complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except service of
complaint.

What is the difference between filing and service of pleadings? Section 2:

Sec. 2. Filing and service, defined. Filing is the act of presenting the
pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is
ordered by the court. Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the opposite side.
(2a)

When you say FILING, you present the pleading in the office of the clerk of court. When you say
SERVICE, you furnish a copy of the pleading to the party concerned, or if he is represented by a
lawyer, you must furnish a copy of the pleading to the lawyer.

The GENERAL RULE, when a party is represented by a lawyer, the service should be to the lawyer
and not to the party. Service to a party is not valid. What is valid is service to the counsel. Service to the
lawyer binds the party. But service to the party does not bind the lawyer, unless the court orders direct
service to the party.

Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may
raise to the effect that he knows nothing about court procedure and also to maintain a uniform
procedure calculated to place in competent hands the orderly prosecution of a party’s case. (Hernandez
vs. Clapis, 87 Phil. 437; Javier Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)

So, the purpose there is to avoid any complaint later that the party did not know what to do. Since
the lawyer is presumed to know the rules, at least it is on competent hands. But if you go to the party
himself, the problem is he might start complaining later, “My golly, kaya nga ako kumuha ng abogado
kasi hindi ako marunong.”

There was a even a case when the client volunteered to get the copy of the decision. But the party
failed to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because the rule is
service to lawyer binds the client and not the other way around.

So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE
UPON THE PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of

RETONI, JR. vs. COURT OF APPEALS

218 SCRA 468 [1993]

HELD: “Usually, service is ordered upon the party himself, instead of upon his attorney,
[1] when it is doubtful who the attorney for such party is, or [2] when he cannot be located
or [3] when the party is directed to do something personally, as when he is ordered to show
cause.”

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There are rare circumstances however where service to the lawyer does not bind the client. These
are cases of negligence; where the lawyer is in bad faith for gross negligence; where he deliberately
prejudiced his client. So it is unfair that the party may be bound by the service to the lawyer because of
those circumstances. One such instance happened in the case of

BAYOG vs. NATINO

258 SCRA 378 [1996]

HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible
cannot be considered as notice to his client. The application to the given case of the doctrine
that notice to counsel is notice to parties should be looked into and adopted, according to
the surrounding circumstances; otherwise, in the court’s desire to make a short cut of the
proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment
of justice. It would then be easy for one lawyer to sell one’s rights down the river, by just
alleging that he just forgot every process of the court affecting his clients, because he was so
busy.”

So, sasabihin lang niya, “Sorry ha, nakalimutan ko,” and then you are bound – Masyadong masakit
naman iyan.

Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the
lawyer entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, “Where one counsel
appears for several parties, he shall only be entitled to one copy of any paper served upon him by the
opposite side.” But if the 5 defendants are represented by different lawyers, that is another story. Every
lawyer has to be furnished a copy.

Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat
abogado ba may kopya?
A: NO, service on one is sufficient. Section 2 says, “…service shall be made upon his counsel or one
of them…” Service to one is service to all. You can do it if you want to but service on one will suffice.

A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Now, how do you file pleadings? Section 3:

Sec. 3. Manner of filing. The filing of pleadings, appearances, motions,

notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of
court or by sending them by registered mail. In the first case, the clerk of
court shall endorse on the pleading the date and hour of filing. In the second
case, the date of the mailing of motions, pleadings, or any other papers or
payments or deposits, as shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the record of the case. (1a)

Under Section 3, there are two (2) modes of filing – either

1.) Personally; or
2.) by registered mail

First Mode of Filing: PERSONAL FILING

This mode of filing is done personally to the clerk of court. You go to the court and the court will
mark it RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.

Section 3 says, “…by presenting the original copies thereof, plainly indicated as such personally to
the clerk of court…” There was a lawyer before who referred to me. He said he filed a complaint. There
are many copies of it. The court will usually receive 2 or 3 copies – 1 for itself, 1 for the defendant to be
sued in summons, then any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw
nakalagay na “ORIGINAL.” Sabi ng lawyer, lahat naman ito original, kasi naka-computer. So,

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everything is original. Sabi na clerk of court, “Eh di, dapat sulatan mo ng ‘original’!” Where did the
clerk of court got that rule? Maski klaro na, sulatan pa rin ng original? Sabi ng clerk of court, “Nasa
1997 Rules and requirement na iyan.”

So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court,
“The filing of pleadings… shall be made by presenting the original copy thereor plainly indicated as
such.” Meaning, “original,” “duplicate,” “original,” “duplicate.” To my mind, huwagn amang
masyadong istrikto. Nasubrahan ng basa ba! When you read too much, you become very technical.
Why refuse to accept? Simply because walang word na ‘original’? Eh, di ikaw ang maglagay! So the
clerk of court, with that phrase “plainly indicated as such,” becomes too strict.

Second Mode of Filing: FILING BY REGISTERED MAIL

The other mode is by registered mail. It is not ordinary mail. It is registered mail.

Q: What is the importance of registered mail on filing of pleadings and motions in court?
A: The importance is the rule that in registered mails, the date of mailing is the date of filing. If you
send the pleading through the Post Office by registered mail, the date of filing is not the date on which
the letter reached the court but on the day that you mailed it. So the date on the envelope is officially
the date of filing.

Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service
like LBC or JRS Express delivery, or by ordinary mail? What is the rule if instead of the registered
service of the Post Office, you availed the private messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not deemed filed
until it is received by the court itself.

When it is by registered mail, the date of mailing as shown by the Post Office stamp is considered
as the date of filing. The envelope is attached. The post office is automatically a representative of the
court for the purpose of filing. In other words, the law treats the messengerial company only as your
process helper. That is why in the 1994 case of

INDUSTRIAL TIMBER CORP. vs. NLRC

233 SCRA 597 [1994]

HELD: “Where a pleading is filed by ordinary mail or by private messengerial service, it

is deemed filed on the day it is actually received by the court, not on the day it was mailed
or delivered to the messengerial service.”

What about filing by FAX machine? In the case of

GARVIDA vs. SALES, JR.

April 18, 1997

HELD: “Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of

Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining
on its face whether the facsimile pleading is genuine and authentic and was originally
signed by the party and his counsel. It may, in fact, be a sham pleading.”

Q: Now, how do you prove that the pleading was filed?

A: Section 12. This is a new rule on how to prove that a pleading is filed –

Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved
by its existence in the record of the case. If it is not in the record, but is

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claimed to have been filed personally, the filing shall be proved by the written
or stamped acknowledgment of its filing by the clerk of court on a copy of the
same; if filed by registered mail, by the registry receipt and by the affidavit
of the person who did the mailing, containing a full statement of the date and
place of depositing the mail in the post office in a sealed envelope addressed
to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not
delivered. (n)

Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I
filed it in court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is
not yours but with the clerk of court.

Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the
post office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing a full
statement of the date and place of depositing the mail in the post office in a sealed envelope addressed
to the court. It must be stressed that the affidavit is very important.

B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Sec. 4. Papers required to be filed and served. Every judgment, resolution,

order, pleading subsequent to the complaint, written motion, notice, appearance,
demand, offer of judgment or similar papers shall be filed with the court, and
served upon the parties affected. (2a)

Let us now go to service. Under the law, before you file, there must be service to the opposing
party’s counsel. And all documents, as a rule, shall be filed to the court and served to the parties
affected. Or, all pleadings SUBSEQUENT to the complaint…. bakit ba ‘subsequent’? Meaning, answer,
counterclaim, cross-claim.

Q: Do you mean to tell me the complaint does not have to be served to the defendant by the
plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not really
have to go to the defendant to serve the complaint. The complaint is brought to the court because the
summons will be issued.

But if you are the defendant’s lawyer, you go directly to the plaintiff’s lawyer to serve the answer
because an answer is a pleading ‘subsequent’ to the complaint. Moreover, the manner of serving
complaint is not governed by 13 but by Rule 14.

Alright, every paper is required to be filed and served. Some people do not understand this –
“Every judgment, resolution, order… shall be filed with the court and served to the parties...” Well of
course, iyang mga pleadings, motions, etc., you file and serve because there must be proof of service to
the adverse party.

Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually,
the judge has to file his decision before the court. Read Rule 36, Section 1:

Rule 36, Section 1. Rendition of judgments and final orders. A judgment or

final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and filed with the clerk of the
court. (1a)

So, the judge has to file his own decision to make it official.

Sec. 5. Modes of service. Service of pleadings, motions, notices, orders,

judgments and other papers shall be made either personally or by mail. (3a)

Q: How do you SERVE a pleading to the opposite party?

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A: Either:
1.) personally or
2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or by registered
mail

PERSONAL SERVICE OF PLEADINGS

Sec. 6. Personal service. Service of the papers may be made by delivering

personally a copy to the party or his counsel, or by leaving it in his office
with his clerk or with a person having charge thereof. If no person is found in
his office, or his office is not known, or he has no office, then by leaving the
copy, between the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of sufficient age and
discretion then residing therein. (4a)

How are pleadings served personally? You deliver it personally to the party if he is not represented
by a counsel. And if he is represented, then to his counsel. You don’t have to look for his lawyer – you
may leave it to his office with the clerk or any person charged thereof and that is already personal
service. Most lawyers have a receiving clerk authorized to receive pleadings.

Now, let us go to some cases on personal service. The case of

PLDT vs. NLRC

128 SCRA 402 [1984]

FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So, siguro,
sira iyong elevator, gikapoy iyong process server, what he did was, he left the copy of the
judgment to the receiving station at the ground floor.

ISSUE: Was there a valid service?

HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on the 9th floor
and not at the ground floor with somebody who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of record in the absence of
due notice to the court of change of address. The service of decision at the ground floor of a
party’s building and not at the address of record of the party’s counsel on record at the 9th
floor of the building cannot be considered a valid service.”
“Service upon a lawyer must be effected at the exact given address of the lawyer and not
in the vicinity or at a general receiving section for an entire multi-storied building with
many offices.”

But the case of PLDT should not be confused with what happened in the case of

PCI BANK vs. ORTIZ

150 SCRA 680 [1987]

FACTS: This time, the office of the lawyer is located on the 5th floor. And again, the
habit of the process server is that instead of going to the 5th floor, he would just approach
the receiving station on the ground floor. Now, of course the receiving clerk, everytime the
lawyer passes by, gave it to the lawyer. And the lawyer here did not question the practice.
Now, when a decision against PCI Bank was served, the lawyer claimed they are not
bound because there was no proper service.

ISSUE: Was there proper service?

HELD: While is true that the service was improper, but the trouble is, it was going on for
some time and you are not complaining. So, the ground floor becomes your adopted
address. Naloko na!

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“They cannot now disown this adopted address [iyung ground floor] to relieve them
from the effects of their negligence, complacency or inattention. Service, therefore, of the
notice of judgment at the ground floor of the building, should be deemed as effective
service.”

So, the judgment became final. There was no appeal. Those are examples of personal service.

Q: So, when is personal service complete?

A: It is completed upon actual delivery. Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual
delivery. Service by ordinary mail is complete upon the expiration of ten (10)
days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date is
earlier. (8a)

SERVICE OF PLEADINGS BY MAIL

Sec. 7. Service by mail. Service by registered mail shall be made by

depositing the copy in the post office, in a sealed envelope, plainly addressed
to the party or his counsel at his office, if known, otherwise at his residence,
if known, with postage fully pre-paid, and with instructions to the postmaster
to return the mail to the sender after ten (l0) days if undelivered. If no
registry service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail. (5a; as amended by En Banc
Resolution, Feb. 17, 1998)

Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this time
although the law prefers service by registered mail, however, the last sentence of Section 7 says, “If no
registry service is available in the locality of either the sender or the addressee, service may be done by
ordinary mail.”

Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed for
purposes of service (Section 7), but for purposes of filing (Section 3), wala! For purposes of filing, the
law does not recognize the ordinary mail. If you do it, it will be treated as personal filing. In ordinary
mail, the date of receipt is considered the date of filing not the date of mailing.

Q: Now, when is service by mail deemed complete?

A: Section 10:

Sec. 10. Completeness of service. Personal service is complete upon actual

delivery. Service by ordinary mail is complete upon the expiration of ten (10)
days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date is
earlier. (8a)

So that is for the people who refuse to claim their mail even if they are already notified. He knows it
is an order he expects to be adverse so he will try to defeat the service by not claiming it. NO, you are at
a disadvantage because after the expiration of so many days, service is deemed completed. That is what
you call CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the process of the law by
simply not claiming his mail. You can be bound by a decision which you never read. That is
constructive service.

SUBSTITUTED SERVICE OF PLEADINGS

Sec. 8. Substituted service. If service of pleadings, motions, notices,

resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being
unknown, service may be made by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by mail. The service is
complete at the time of such delivery. (6a)

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Kung somehow there was an attempt of personal service or registered service at walang nangyari,
you can resort to by serving a copy to the clerk of court with proof of failure of personal and mailing
service. And by fiction of law, the adverse party has already been served.

SERVICE OF DECISIONS, ORDERS, ETC.

Sec. 9. Service of judgments, final orders or resolutions. Judgments, final

orders or resolutions shall be served either personally or by registered mail.
When a party summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. (7a)

There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication

So court orders or judgments orders have to be served also, either personally or by registered mail.
That’s why if you go to the court, there are employees there who are called process servers. Everyday,
they go around from law office to law office to serve court orders, notices and judgments. And that is
personal service. But if the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court
will apply registered mail.

Under Section 9, there is a third mode of service of court orders and judgments and that is service
by publication. That is if the parties were summoned by publication under Rule 14 and they did not
appear. The judgment is also served to them by publication at the expense of the prevailing party.

Sec. 11. Priorities in modes of service and filing. Whenever practicable,

the service and filing of pleadings and other papers shall be done personally.
Except with respect to papers emanating from the court, a resort to other modes
must be accompanied by a written explanation why the service or filing was not
done personally. A violation of this Rule may be cause to consider the paper as
not filed. (n)

That is a radical provision. In other words, there are two (2) ways of service: personal or by mail.
And the law says, personal service is preferred to mail. Meaning, personal service is prioritized.

Q: Suppose you served the opposing counsel by mail.

A: The law requires that you must give an explanation why you resorted to mail and not to
personal service.

Q: Suppose I will file it without any explanation.

A: The law says, “A violation of this rule may be cause to consider the paper as not filed.” And that
is a very radical rule..

For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the
pleading or motion and then, nakalagay doon sa pleading : “Explanation: I have to resort to registered
mail because it is expensive for me to resort to personal service. It is expensive if I will send my
messenger to Davao just to serve whereas if I send by registered mail, it will only cost me P5.00.” They
have to state that. Takot sila eh because without it, the pleading is not considered as filed. Of course
this rule should be interpreted based on common sense.

To my mind, the rule should be construed reasonably. If I am the judge, even if there is no
explanation, I will allow it. Common sense eh! Alangan papuntahin pa dito ang messenger at
pa-eroplanuhin mo pa!

Now, I think the purpose of this new provision has been provoked by some malpractices of the
lawyers. There were some instances before which have been confirmed especially in Metro Manila. The
opposing counsel is just across the street ang opisina. He will send a motion to be received today.
Instead of serving you, he will mail it. Mas malayo pa ang Post Office para hindi mo matangap. They
will deliberately do it because it could not reach you on time. I think if you do that, I will not consider
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your motion. Or, kunwari may motion ka. You will send me a copy by mail and you are along C.M.
Recto St. Bakit ka nag-mail eh mas malayo pa ang Post Office kaysa office ko? Unless you explain, I will
deny your motion.

Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para
maniguro, you explain na lang: “Explanation: Because of time constraint and distance, I had to resort to
registered mail.” That is now the standard explanation which appears in many pleadings or motions. It
is a radical provision.

Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The court
does not have to explain why it resorted to registered mail because Section 11 says, “Whenever
practicable, the service and filing of pleadings and other papers shall be done personally EXCEPT
WITH RESPECT TO PAPERSE EMANATING FROM THE COURT.”

So the court is not obliged to give any explanation, only the parties and their lawyers.

SOLAR TEAM ENTERTAINMENT vs. RICAFORTE

293 SCRA 661 [August 5, 1998] J. Davide

FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons and
copies of the complaint were forthwith served on Co. Co then filed his answer. A copy
thereof was furnished to counsel for Solar Team by registered mail; however, the pleading
did not contain any written explanation as to why service was not made personally upon
Solar Team, as required by Section 11 of Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default, alleging
therein that Co did not observe the mandate of Section 11. RTC issued an order stating that
under Section 11 of Rule 13, it is within the discretion of the RTC whether to consider the
pleading as filed or not, and denying, for lack of merit, Solar Team’s motion to expunge.

HELD: “Pursuant to Section 11 of Rule 13, service and filing of pleadings and other
papers MUST, whenever practicable, be done personally; and if made through other modes,
the party concerned must provide a written explanation as to why the service or filing was
not done personally. Note that Section 11 refers to BOTH service of pleadings and other
papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the
filing of pleadings and other papers in court.”
“Personal service will do away with the practice of some lawyers who, wanting to
appear clever, resort to the following less than ethical practices: serving or filing pleadings
by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to
prepare, for instance, responsive pleadings or an opposition; or, upon receiving notice from
the post office that the registered parcel containing the pleading of or other paper from the
adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse,
not claiming it at all, thereby causing undue delay in the disposition of such pleading or
other papers.”
“If only to underscore the mandatory nature of this innovation to our set of adjective
rules requiring personal service whenever practicable, Section 11 then gives the court the
discretion to consider a pleading or paper as not filed if the other modes of service or filing
were resorted to and no written explanation was made as to why personal service was not
done in the first place. The exercise of discretion must, necessarily, consider the
practicability of personal service, for Section 11 itself begins with the clause ‘whenever
practicable.’”
“We thus take this opportunity to clarify that under Section 11: Personal service and
filing is the GENERAL RULE, and resort to other modes of service and filing, the
EXCEPTION. Henceforth, whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when
personal service or filing is not practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why personal service or filing was not
practicable to begin with.”
“Of course, proximity would seem to make personal service most practicable, but
exceptions may nonetheless apply such as when: the adverse party or opposing counsel to
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be served with a pleading seldom reports to office and no employee is regularly present to
receive pleadings, or service is done on the last day of the reglementary period and the office
of the adverse party or opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of opposing counsel and the
absence of any attendant explanation as to why personal service of the answer was not
effected, indubitably, Co’s counsel violated Section 11 and the motion to expunge was prima
facie meritorious. However, the grant or denial of said motion nevertheless remained within
the sound exercise of the RTC's discretion.”
“To Our mind, if motions to expunge or strike out pleadings for violation of Section 11
were to be indiscriminately resolved under Section 6 of Rule 1, then Section 11 would
become meaningless and its sound purpose negated. Nevertheless, We sustain the
challenged ruling of the RTC, but for reasons other than those provided for in the
challenged order.”
“The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was
filed only on 8 Aug 1997, or on the 39th day following the effectivity of the 1997 Rules.
Hence, Co’s counsel may not have been fully aware of the requirements and ramifications of
Section 11. It has been several months since the 1997 Rules of Civil Procedure took effect. In
the interim, this Court has generally accommodated parties and counsel who failed to
comply with the requirement of a written explanation whenever personal service or filing
was not practicable, guided, in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the issues involved and the
prima facie merit of the challenged pleading.”
“However, as we have in the past, for the guidance of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 is mandated one month from promulgation of this
Decision.”
“WHEREFORE, the instant petition is DISMISSED considering that while the
justification for the denial of the motion to expunge the answer (with counterclaims) may
not necessarily be correct, yet, for the reasons above stated, the violation of Section 11 of
Rule 13 may be condoned.”

Sec. 13. Proof of service. Proof of personal service shall consist of a

written admission of the party served, or the official return of the server, or
the affidavit of the party serving, containing a full statement of the date,
place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance
with section 7 of this Rule. If service is made by registered mail, proof shall
be made by such affidavit and the registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the addressee. (10a)

Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE?
A: It is through the written admission of the party served as admitted that he had been furnished
with a copy. The other alternative is that you file the affidavit of your employee, or messenger, that he
served the copy in the office of so and so. (containing full statement of facts). Or, the official return of
the server.

The procedure is that there is a pleading and in the last portion there is that part which states:

Copy received : January 16, 1998

By : (Signed) Atty. X
Counsel of Plaintiff

Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with Section 7.

Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the
registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its
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receipt by the sender. Or, in lieu thereof, of the unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster – that is a constructive service ‘no?

Now in practice among lawyers when we serve by registered mail, we only attach the original in
the registry receipt and there is a quotation there in the original pleading, “Copy sent by registered
mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel for the plaintiff per registry receipt
no. 123 hereto attached,” and nobody complains.

But in reality, the law does not allow that. There must be an affidavit of the person who mailed it.
The surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is
not reflected to whom that letter is addressed so how will the court know that the registry receipt really
corresponded to the pleading that you mailed? It might be another letter like a love letter for your
girlfriend or a letter to your creditor. The registry receipt will not indicate kung ano ang na-mailed to
his address. But we just allow it because it is too tedious – everytime you file, affidavit?!!

But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may nakalagay
na “Copy sent by registered mail” without the affidavit, outright dismissal yan for lack of proof of
service. The SC and the CA are very strict about this requirement.

Let’s go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and
therefore you want to avail of the rules on constructive service – it is deemed served upon the
expiration of so many days. What you will file in court is the unclaimed letter together with a certified
or sworn copy of the notice given by the postmaster to the addressee.

Let us see what happened in the case of

JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS

201 SCRA 768 [1991]

FACTS: The CA served to Johnson and Johnson Philippines a decision in an envelope

by registered mail. After a while, the same envelope was returned to the CA. On the face of
the envelope, it was written, “Return to Sender, Unclaimed.” On the back of the envelope,
there is an annotation “Return to CA”.
With that, the CA applied the rule on constructive service – considered the decision as
already served. Johnson and Johnson Philippines questioned it. It never received any notice
from the post office. But according to the CA, it is very obvious. It is there in the envelope
still sealed.

ISSUE: Is there proper application of the rules on constructive service?

HELD: There is NO constructive service because there is no certification by the

postmaster that is claimed. This is what the law requires not just a one sentence statement.
One cannot even ascertain who wrote the statement. Certification should include the details
of delivery and not just state that notice was issued.
“A certification from the postmaster would be the best evidence to prove that the notice
has been validly sent. The mailman may also testify that the notice was actually delivered.
The postmaster should certify not only that the notice was issued or sent but also as to how,
when and to whom the delivery thereof was made.”
“There is nothing in the records of the present case showing how, when and to whom
the delivery of the registry notices of the subject registered mail of petitioner was made and
whether said notices were received by the petitioner. The envelope containing the
unclaimed mail merely bore the notation “RETURN TO SENDER: UNCLAIMED” on the
face thereof and “Return to: Court of Appeals” at the back. The respondent court should not
have relied on these notations to support the presumption of constructive service.”

The case of JOHNSON was reiterated in

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SANTOS vs. COURT OF APPEALS

293 SCRA 147 [Sept. 3, 1998]

FACTS: Jesus Santos, was sued for damages by Omar Yapchiongco before the CFI. CFI
dismissed the complaint for lack of merit. CA reversed and declared Santos liable for
damages.
On 15 June 1995, the decision of the CA was sent by registered mail to Santos’ counsel,
Atty. Magno. On the same day, the corresponding notice of registered mail was sent to him.
The mail remained unclaimed and consequently returned to the sender. After 3 notices, the
decision was returned to the sender for the same reason.
On 27 September 1995, a notice of change of name and address of law firm was sent by
Atty. Magno to CA. On 28 March 1996, the same decision of CA was sent anew by
registered mail to Atty. Magno at his present address which he finally received on 3 April
1996. On 17 April 1996, Magno withdrew his appearance as counsel for Santos.
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, entered his appearance and
moved for reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the
motion on the ground that the period for its filing had already expired.

HELD: “The rule on service by registered mail contemplates 2 situations: (1.) Actual
service - the completeness of which is determined upon receipt by the addressee of the
registered mail; (2.) Constructive service - the completeness of which is determined upon the
expiration of 5 days from the date of first notice of the postmaster without the addressee
having claimed the registered mail.”
“For completeness of constructive service, there must be conclusive proof that Santos’s
former counsel or somebody acting on his behalf was duly notified or had actually received
the notice, referring to the postmaster's certification to that effect.”
“Here, Santos failed to present such proof before CA but only did so in the present
proceedings. Clearly then, proof should always be available to the post office not only of
whether or not the notices of registered mail have been reported delivered by the letter
carrier but also of how or to whom and when such delivery has been made.”
“Consequently, it cannot be too much to expect that when the post office makes a
certification regarding delivery of registered mail, such certification should include the data
not only as to whether or not the corresponding notices were issued or sent but also as to
how, when and to whom the delivery thereof was made. Accordingly, the certification in
the case at bar that the first and second notices addressed to Atty. Magno had been "issued"
can hardly suffice the requirements of equity and justice. It was incumbent upon the post
office to further certify that said notices were reportedly received.”

This last section, Section 14, has something to do with real actions, land titles – notice of lis pendens.

Sec. 14. Notice of lis pendens. In an action affecting the title or the
right of possession of real property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may record in the office of the
registry of deeds of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the names of the parties
and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action, and only of
its pendency against the parties designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon
order of the court, after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded. (24a, R14)

This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do not know why
notice of lis pendens which refers to lands, titles and deeds appears under the rules on Summons. It
was misplaced so they place it under Rule 13 which is also misplaced.

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NOTICE OF LIS PENDENS – notice of pending action or litigation.

This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against
the whole world against sale or mortgage of the property under litigation. And whoever deals with it is
accepting the risk. Anybody who buys it is gambling an the outcome of the case. He cannot claim he is
the mortgagee or buyer in good faith because there is a notice.

I will file a case for recovery of a piece of land and the title is in your name. There is a danger that
you will sell the land to others who know nothing about the case. So if I win the case and try to recover
it to the buyer, the buyer will say he bought the land in good faith, “I did not know that there is a
pending action concerning this land.” And under the law, he is protected because he is a buyer in good
faith and for value. This is if there is no notice of lis pendens. The other risk is that the owner of the
land will mortgage his property.

A person buying a property with a notice of lis pendens is buying it subject to the outcome of the
case. So you are gambling.

Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception:

Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that “The plaintiff and the defendant may register when affirmative relief is
claimed in this answer.” In such case, a defendant may register and normally it is done when there is a
counterclaim. The defendant is also interposing a defense with the same property.

Take note that the action in this case affects the right of possession over real property.

Q: How is a notice of lis pendens cancelled?

A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the
order from the court and generally the court cannot issue the order until the case is finished or until the
final issue of the case is determined.

EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis
pendens even when the case is not yet terminated. One of which is contemplated under Section 14:
“After proper showing that the notice is: [a] For the purpose of molesting the adverse party; or [b] It is
not necessary to protect the rights of the party who caused it to be recorded.” In the case of

ROXAS vs. DY
233 SCRA 643 [1993]

FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered
in the name and possessed by the defendant. The case has been going on for more than 1
year, the plaintiff has been presenting evidence although he has not yet shown that he has
right over the land.

HELD: So there is no more basis of notice of lis pendens because your purpose is to
harass the defendant for over a year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is
pending and unresolved, the proper court has the authority to determine whether to cancel
it under peculiar circumstances, e.g., where the evidence so far presented by the plaintiff
does not bear out the main allegations in the complaint.”


published by

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LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion •
Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison •
Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •
Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •
Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila Ilao
• Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin •

Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin •
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco •
Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos •Joshua Tan •
Thaddeus Tuburan • John Vera Cruz • Mortmort

Property of LAKAS ATENISTA 196