BAR REVIEW MATERIALS

REVISED RULES ON CIVIL PROCEDURE

BOOK 1
Fundamental Principles

The Basic Structure

The different principles in civil procedure will fit into one or a
combination of certain basic stages and it is essential that students of
procedural law should be familiar of these various phases. These basic
stages are the:
1. Complaint – is the first pleading in an ordinary civil action that is
filed with the court. The function of a complaint is to give the
opposing party notice of the nature and basis for the claim.

a. A civil action starts with the institution of an action or a suit. An

action has been always considered as the means by which one
prosecutes another for the enforcement or protection of a
right, or the prevention or redress of a wrong.

Cause of action – The existence of a cause of action is imperative before

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

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(b) That the defendant has a legal obligation to respect the right of the
plaintiff;
(c) That the defendant violated the legal right of the plaintiff; and
(d) That the violation caused damage or injury to the plaintiff.
b. Parties – Only natural or juridical persons or entities authorized
by law may be parties to a civil action. If the plaintiff has no
legal capacity to sue, the action may be dismissed based on
such ground. Even if he has the legal capacity to sue, he must
also determine if he has the legal personality to sue by
determining whether or not he is the real party in interest. A
real party in interest is the person who stands to be benefited
or injured by the judgment.

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

matter of law. It is conferred by law. The different laws which
confer jurisdiction are the following:

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

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

3. RA No. 10951 – An Act adjusting the Amount or the Value of

Property and Damage on Which a Penalty is Based and the
Fines imposed under the Revised Penal Code, Amending for
the purpose Act No. 3815, otherwise known as The Revised
Penal Code. (Applicable only in criminal cases)

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

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

(1) Privity of contract,

(2) Recovery of personal property or

(3) Recovery of damages, has to be filed either in the place of

residences of the plaintiff or of the defendant at the option of
the plaintiff.

A personal action is considered a transitory action because its

venue is dependent on the residences of the parties.

Real action is a kind of action founded upon the privity of real

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

e. Certification against forum shopping – The plaintiff or principal

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

2. Summons – Upon the filing of the complaint and the payment of

the docket fees, it is now the turn of the clerk of court to make his

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 move. Under the Rules, the Clerk of Court shall issue the
corresponding summons.

Commencemnt of the application of the Rules of Civil Procedure

(a)From the point of view of the plaintiff, the filing of the

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

(b) To the defendant however, his encounter with procedural

laws begins when he validly receives the summons ordering
him to answer, to appear and defend a lawsuit.

The filing of the complaint enables the court to acquire

jurisdiction over the person of the plaintiff. But it should be
remembered that this jurisdiction does not extend to the person
of the defendant. For the court’s proceedings to have all the
indicia of validity, the court must also have jurisdiction over the
person of the defendant. No court will proceed with the
determination of the case until it believes that it has acquired
jurisdiction over all the parties to the litigation.
3. Motion for Bill of Particulars – The defendant may have the
allegations clarified by filing a motion for bill of particulars.
Through this motion he asks the court to order the adverse party

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 for a definite statement of any matter not averred with sufficient
definiteness or particularity.

4. Motion to Dismiss – If there are other available objections to the

complaint, the defendant may instead file a motion to dismiss the
complaint. Although under the present amendments, the Rule on
Motion to Dismiss has been deleted or interposed, but still it does
not prohibit the defendant from filing a motion to dismiss on
some well defined grounds.

5. DEFAULT
A smart lawyer will almost never advise his client, the
defendant, to ignore the summons served upon him. But if by
choice the defendant does ignore the summons and fails to
answer the complaint as directed within the time granted him,
the plaintiff may move to declare him in default. If he is declared
in default, he loses his right to participate in the trial and the
court may thereupon render judgment granting the plaintiff such
relief as his complaint may warrant, unless in his discretion he
requires the plaintiff to submit his evidence without the
participation of the defendant declared in default. If the evidence
favors the plaintiff, a judgment by default shall be rendered
against the defendant. The judgment in this case shall not
however, exceed the amount or be different in kind from that
prayed for by the plaintiff. (Dean Riano)
6. Answer – If there is no ground for a Motion to Dismiss or if the
motion to dismiss was rightfully denied, or the Motion for Bill
Particulars has been denied or granted, the defendant has to file

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 his answer. The answer gives notice to the plaintiff as to which
allegations in the complaint he decides to contest.

The answer contains two kinds of defenses, the negative and

affirmative defenses.

Negative defenses refer to the specific denials of the material

facts alleged in the complaint essential to the claiming party’s
cause or causes of action.

The affirmative defenses on the other hand, are the allegations of

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

7. Counterclaim – A counterclaim may either be compulsory or

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

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

(b) Reply – Upon receipt of the answer of the defendant, the

plaintiff may decide to respond to the answer. This response is
in the form of a reply. The purpose of a reply is to deny or
allege facts in denial or avoidance of new matters alleged in the
answer. In other words, a reply is the plaintiff’s answer to the
defendant answer. The filing of a reply, asa rule, not mandatory
because if the plaintiff does not file a reply, all the new matters
in the answer are nevertheless deemed controverted.
Remember that the present amendement now declares that
“all new matters alleged in the answer are deemed
controverted.” The only instance wherein the plaintiff may file
a reply if the defending party attached an actionable document
to his or her answer.” (Rule 6, Section 10)

(c)Rejoinder – The current amendments allow the filing of a

Rejoinder. Thus: “In the event of an actionable document
attached to the reply, the defendant may file a rejoinder if the
same is based solely on an actionable document.” Sec. 10, last
paragraph)

Normally, the Reply is the last responsive pleading, wherein the

Branch Clerk of Court, within five (5) calendar days from the
filing, shall issue a notice of pre-trial. It appears, however, that

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 if the Reply is based on an actionable document, the last
responsive pleading would be a Rejoinder. In this case, the
Branch Clerk of Court shall issue a notice of pre-trial within five
(5) calendar days from the filing of the Rejoinder.
8. Pre-trial – Under the old rules, after the last pleading has been
served and filed, the plaintiff has the duty to move ex parte that
the case be set for pre-trial. A pre-trial is mandatory. In a pre-trial,
the parties shall, among others, consider the possibility of an
amicable settlement or of submission of the case to alternative
modes of dispute resolution.

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

9. Trial – During the trial, the parties present their evidence in

accordance with the rules of relevance and competence. The
plaintiff first presents is evidence. At the conclusion of his
presentation, he orally and formally offers his documentary
evidence. He then rests his case. It is now the turn of the
defendant to present his evidence. However, if the defendant
believes that upon the facts and the law the plaintiff is not
entitled to relief, he may, instead of presenting his own evidence,
move for a demurrer to evidence praying that the action be
dismissed. A demurrer to evidence actually is a specie of a motion
to dismiss. If the demurrer is denied, the defendant presents his
own evidence the same manner the plaintiff did at an earlier
stage.

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

11. Remedies against a judgment – The losing party may make

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

If the judgment has already become final, he may file (1) a

petition for relief from judgment. If this is no longer possible, he may
file (2) an action to annul the judgment based on lack of jurisdiction or
extrinsic fraud. He may also (3) attack the judgment collaterally if there
be a ground for doing so or (4) he may avail of a petition for certiorari.
12. Execution – is the remedy afforded by law for the
enforcement of a judgment. It is the fruit and end of the suit.

Concept of Remedial Law:

Remedial law is the traditional term given to the rules which
prescribes the procedure for the protection and enforcement of all
claims arising from the right and duties created by law.
What are the mechanics of due process as part of Remedial Law?
Remedial Law provides for the mechanics of due process which
are:
a. A court or tribunal clothed with judicial power to hear and
determine the matter before it;

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 b. Jurisdiction must be lawfully acquired over the person of the
defendant or over the property which is the subject of the
proceeding.

c. The defendant must be given an opportunity to be heard; and

d. Judgment must be rendered upon a lawful hearing. (Consolidated

Bank and Trust Corp. vs. Court of Appeals, 193 SCRA 158)

Substantive law distinguished from Remedial law (Bar 2006)

Substantive law creates, defines, and regulates rights and duties
concerning life, liberty or property the violation of which gives rise to
a cause of action. Example of substantive law is The New Civil Code of
the Philippines. The governing law concerning contracts, agreements
and conveyances like sale or lease, is the New Civil Code the Philippines
but for the purpose of enforcing said contracts, agreements and
conveyances, reference is with the Rules of Court.
Remedial law like The Rules of Civil Procedure prescribes the
methods of enforcing those rights and obligations, created by
substantive law by proving a procedural system for obtaining redress
for the invasion of rights and violations of duties and by laying out rules
as to how suits are filed, tried and decided upon by the courts.
The procedural rules under the Rules of Court are not laws
The Rules of Court as a whole has reference to the body of rules
governing pleading, practices and procedure promulgated by the
Supreme Court pursuant to its rule-making powers under the
Constitution. As they do not originate from the Legislature, they cannot

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be called laws in the strict sense of the word. However, since they are
promulgated by authority of law, they have the force and effect of law
if not in conflict with positive law. The Rules are subordinate to statute,
and in case of conflict, the statute will prevail.
Prospective effect of Rules of Court (Bar 2011)
The rules embodied in the Rules of Court are not penal laws and
are not to be given retroactive effect and are to govern cases brought
after they take effect, and also all further proceedings in cases then
pending, except to the extent that in the opinion of the court, their
application would not be feasible or would work injustice, in which
event the former procedure shall apply.

Applicability to pending actions; retroactivity (Bar 2011)

1. Rules of procedure however, may be made applicable to actions
pending and undetermined at the time of their passage, and are
deemed retroactive in that sense and to that extent. As a general
rule, the retroactive application of procedural laws cannot be
considered violative of any personal rights because no vested
rights may attach to nor arise therefrom.

2. For instance, the Court also applied to pending actions, a rule

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

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“Fresh-Period Rule” a procedural law; Retroactive application
The “fresh period rule” is a procedural law as it prescribes a fresh
period of 15 days within which an appeal may be made in the event
that the motion for reconsideration is denied by the lower court.
Following the rule on retroactivity of procedural law, the “fresh period
rule” should be applied to pending actions.
When procedural rules do not apply to pending actions
While a procedural rule may be made applicable to actions
pending and undetermined at the time of their passage and is
retroactive in that sense, the rule does not apply:
(a) Where the statute itself or by necessary implication provides
that pending actions are excepted from its operation;

(b) If applying the rule to pending proceedings would impair

vested rights;

(c)When to do so would not be feasible or would work injustice ;

or

(d) If doing so would involve intricate problems of due process

or impair the independence of the courts.

Applicable actions or proceedings

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

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Inapplicable actions or proceedings
1. Sec. 4, Rule 1 of the Rules of Court clearly provides that the Rules
shall not apply to the following cases:
1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings
6. Labor cases

2. The Rules may, however, apply to the above cases by (a) analogy or
(b) in a suppletory character and whenever practicable and
convenience.
What is the meaning of “suppletory character” application of the Rules
of Court?
It means that the provision in the Rules of Court will be made to
apply where there is an insufficiency in the applicable rule. (GSIS vs.
Dinnah Villaviza, G.R. No. 180291, July 27, 2010)
Application of the Rules of Court in Impeachment Trial
The Rules of Evidence and procedure shall be applied liberally and
whenever they are practicable in Impeachment Trial Cases (Art. VI of
the Rules of Impeachment Trial in the Senate)
Administrative proceedings are not strictly bound by formal rules
of evidence. In administrative proceedings, technical rules of procedure
are not strictly applied. It is well-settled that the rules of evidence are
not strictly applied in proceedings before administrative bodies such as
the Board of Medicine.

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 Jurisprudence discloses that the rules in the Rules of Court do not
also apply to non judicial proceedings, like NLRC, SSS, and COMELEC,
because these agencies have their own rules of procedure.

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 RULE 1
GENERAL PROVISIONS
Section 1. Title of the Rules. – These Rules shall be known and cited as
the Rules of Court.
Section. 2. In what courts applicable. – These Rules shall apply in all
the courts, except as otherwise provided by the Supreme Court.
Section. 3. Cases governed. – These Rules shall govern the procedure
to be observed in actions, civil or criminal, and special proceedings.
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.

A civil action may either be ordinary or special. Both are governed by

the rules for ordinary civil actions, subject to the specific rules
prescribed for a special civil action.

A civil action may be ordinary or special. Ordinary civil actions are

governed by the ordinary rules of procedure while special civil actions
are governed by specific rules prescribed for such actions. The ordinary
rules of procedure apply to special civil action only suppletorily. This
means that where no specific rule is prescribed for a particular special
civil action, the rule used for an ordinary civil action shall apply.
The different kinds of Special Civil Action are provided for under Rules
62 to 71 of the Rules of Court.
(1) Rule 62 -- Interpleader
(2) Rule 63 – Declaratory Re.lief and Similar Remedies
(3) Rule 64 – Review of Judgments and Final Orders or
Resolutions of the COMELEC and COA
(4) Rule 65 – Certiorari, Prohibition and Mandamus
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 (5) Rule 66 – Quo Warranto
(6) Rule 67 – Expropriations
(7) Rule 68 – Foreclosure of Real Estate Mortgage
(8) Rule 69 – Partition
(9) Rule 70 – forcible Entry and Unlawful Detainer
(10) Rule 71 -- Contempt

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

A criminal action is one by which the State prosecutes a person

for an act or omission punishable by law.

CIVIL ACTIONS AND CRIMINAL ACTIONS, Distinguised

The purpose for which the action is instituted is significant in the
distinction between a civil and a criminal action. The former is brought
to enforce, redress or protect private rights. The latter is brought to
punish an infraction of the criminal laws of the State. A civil action
affects private rights while a criminal action affects public interest.
Action defined

Action means the legal and formal demand of one’s right from
another person made and insisted upon in a court of justice.
Compare Civil Actions and Criminal Actions
1. A civil action “is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress
of a wrong.”

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

3. It has been ruled that “… proceedings are to be regarded as

criminal when the purpose is primarily punishment, and civil
when the purpose is primarily compensatory or remedial…”

4. In criminal actions, there is always this presumption of innocence

in favour of the accused. There is no such presumption in civil
actions;

5. In civil actions, the burden of proof is Preponderance of Evidence,

while in criminal actions, the burden of proof is Proof of Guilt
Beyond Reasonable Doubt.

(c) A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact.

A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact.

Kinds of Special Proceedings

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

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

Real and personal actions (BAR 2004; 2014)

1. An action is “real” when it affects title to or possession of real
property, or an interest therein. All other actions are personal
actions (BAR 1994)

Examples: Action for unlawful detainer, forcible entry, accion

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

3. To be a ‘real’ action, it is not enough that the action must deal

with real property. It is important that the matter in litigation
must also involve any of the following issues: (a) TITLE TO,
OWNERSHIP, POSSESSION, PARTITION, FORECLOSURE OF
MORTGAGE, OR ANY INTEREST IN REAL PROPERTY.

Examples of Personal Actions

a. An action for declaration of nullity of marriage;
b. An action for specific performance with damages

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Significance of the distinction between a personal and real action.
1. For the purpose of determining the venue of the action.

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

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

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

A personal action is ‘transitory’ i.e., its venue depends upon the

residence of the plaintiff or the defendant.
a. An action for sum of money
b. An action for damages

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

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

Examples: An action for a sum of money.

An action for damages.

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

3. A judgment in rem is binding upon the whole world, such as a

judgment in a land registration case or probate of a will, while a
judgment in personam is binding upon the parties and their
successor in interest but not upon strangers.

4. An in personam or an in rem action is a classification of actions

according to the object of the action. A personal and real action is
a classification according to foundation.

Examples of real action and action in personam:

(1) An action to recover title to or possession of real property is a
real action, but it is an action in personam;
(2) An action to recover a parcel of land;
(3) An action for ejectment.
(4) An action for damages
Examples of personal action and in rem: (1) An action for declaration
of nullity of marriage.
An action in rem
Is one where the judgment of the court binds the entire world and
where the object of which is to bar indifferently all who may object to
the right sought to be established. It is an action or proceeding against

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a “thing” or property, instead of a person. It does not seek to impose
responsibility or liability upon a person directly but operates against the
particular thing called the “res.”
Examples:
1. Probate proceeding.
2. Cadastral proceeding.
3. Action affecting the personal status of the plaintiff.
4. Insolvency proceeding.
5. Judicial settlement of a decedent’s estate.
6. Land registration proceeding.

Quasi in rem actions

An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property.
A proceeding quasi in rem is one brought against persons seeking
to subject the property of such persons to the discharge of the claims
assailed.
Examples: (a) Action for partition; (b) Action for accounting, (c)
attachment, and (d) foreclosure proceeding.
These actions are essentially for the purpose of affecting the
defendant’s interest in the property and not to render a judgment
against him.
Significance of distinction between actions in rem, in personam and
quasi in rem

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1. The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be employed.

2. Jurisdiction over the person of the defendant is necessary for the

court to validly try and decide a case against said defendant
where the action is one in personam but not where the action is
in rem or quasi in rem.

3. Against a resident defendant in an action in personam, this

jurisdiction is acquired by service in person on the defendant or in
case he cannot be served in person within a reasonable time, by
substituted service of summons.

4. In an action in personam, jurisdiction over the person of the

defendant is necessary for the court to validly try and decide the
case. In proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction
on the court provided that the court acquires jurisdiction over the
res.

Jurisdiction over the res is acquired either

(1) By the seizure of the property under legal process, whereby it

is brought into actual custody of the law; or

(2) As a result of the institution of legal proceedings, in which the

power of the court is recognized and made effective.

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

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

Section. 4. In what cases not applicable. – These Rules shall not apply
to election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and whenever
practicable and convenient.
INAPPLICABLE ACTIONS OR PROCEEDINGS:
1. The Rules of Court shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings,
and other cases except by (a) analogy or in a (b) suppletory
character and whenever practicable and convenient.
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 2. The Rules shall not apply to pleading, practice and procedure in
courts-martial. This is because courts-martial are not courts within
the Philippine judicial system and are merely instrumentalities of
the executive departments.

3. It is well-settled that the rules of evidence are not strictly applied

in proceedings before administrative bodies such as the Board of
Medicine (Atienza v. Board of medicine, 642 SCRA 523).

4. Jurisprudence discloses that the rules in the Rules of Court do not

also apply to non-judicial proceedings.

5. The rules of evidence are not strictly observed in proceedings

before administrative bodies like the NLRC where decisions may
be reached on the basis of position papers only. Rules that prevail
in judicial proceedings are not controlling befoe the labor arbiter
and the NLRC (Bantolino vs. Coca-Cola Bottlers, Phil., Inc., 403
SCRA 699) In the same manner, the Rules of Evidence finds no
application to election cases, and Impeachment proceedings.

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

the filing of the original complaint in court. If an additional defendant
is impleaded in a later pleading, the action is commenced with regard
to him on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the
court.
How civil action may be commenced?
Based on the above provision, a civil action is commenced by the
filing of the original complaint in court.
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What is the rule when additional defendant is impleaded later?
If an additional defendant is impleaded in a later pleading, the
action is commenced with regard to him on the date of the filing of
such later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.
Section. 6. These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.
Purpose of the Rules of Court:
1. The objective of the Rules of Court is to secure “a just, speedy and
inexpensive determination of every action and proceeding.”

2. The fundamental purpose of procedural rules is to afford each

litigant an opportunity to present evidence in their behalf in order
that substantial justice is achieved.

3. The Rules of Court are to be liberally construed in order to

promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding. This objective of
securing a just and speedy justice through a policy of liberal
construction is one of the means of giving meaning to the
constitutional injunction that “all persons shall have the right to a
speedy disposition of cases before all judicial, quasi-judicial or
administrative bodies.”

25
 CIVIL ACTIONS
ORDINARY CIVIL ACTIONS
RULE 2
CAUSE OF ACTION
Section 1. Ordinary civil actions, basis of. – Every ordinary civil action
must be based on a cause of action.
Section. 2. Cause of action, defined. -- A cause of action is the act or
omission by which a party violates the rights of another.
A cause of action defined
A cause of action is the act or omission by which a party violates
the rights of another (Sec. 2, Rule 2, Rules of Court). It has also been
referred to as “the fact or combination of facts which affords a party a
right to judicial interference in his behalf.”
When cause of action is required:
Sec. 1, Rule 2 of the Rules of Court requires that every ordinary
civil action must be based on a cause of action. It has no reference to a
special civil action.
Elements of a cause of action
The elements of a cause of action are as follows:
1. A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or
not to violate such right; and
3. Act or omission on the part of such defendant in violation of the
right of the plaintiff or constituting a breach of the obligation of

26
 the defendant to the plaintiff for which the latter may maintain an
action for recovery of damages or other appropriate relief.

For example:
(a)Cause of action based on breach of contracts merely requires
the following elements: (a) the existence of a contract, and (b)
the breach of the contract.

(b) Cause of action for a sum of money based on a promissory

note. Where the cause of action rests on a promissory note,
filing the action before the due date of the obligation would be
premature because the obligation cause of action for a sum of
money based on a promissory note requires an allegation that
a debt exists.
© Cause of action for unlawful detainer case, the cause of action
does not accrue unless there is a demand to vacate and is not complied
with. If however, the suit is based on expiration of the lease, notice and
demand are not required (Labastida v CA, 287 SCRA 662)
If the unlawful detainer case is based on the alleged violation of
the terms and conditions of the lease agreement or failure to pay the
rentals, the demand should not be “to pay or vacate” but should be to
PAY and VACATE (Sec. 2, Rule 70, Rules of Court).
(d) Cause of action for forcible entry. In forcible entry, the
possession of the defendant is illegal from the very beginning having
deprived the actual possessor of his possession by force, intimidation,
threat, strategy or stealth (Sec. 1, Rule 70). It is the nature of
defendant’s entry into the land which determines the cause of action,
whether it is forcible entry or unlawful detainer. If the entry is illegal,

27
then the action which may be filed against the intruder is forcible entry.
If, however, the entry is legal but the possession thereafter becomes
illegal, the case is unlawful detainer.
Section 3. One suit for a single cause of action. – A party may not
institute more than one suit for a single cause of action.
Splitting a cause of action is not allowed by the Rules of Court. “A
party may not institute more than one suit for a single cause of action.”
(Sec. 3, Rule 2, Rules of Court). This rule against splitting a single cause
of action is intended to prevent repeated litigation between the same
parties in regard to the same subject of controversy; to protect the
defendant from unnecessary vexation, and to avoid the costs and
expenses incident to numerous suits. It comes from that old maxim
nemo debet bis vexare pro una et eadem causa (no man shall be twice
vexed for one and the same cause).
The rule protects not only the original defendant in the suit. It
likewise protects the plaintiff who may be a defendant in a
counterclaim. Thus, the rule applies not only to complaint but also to
counterclaim and cross-claims. The term “defendant” refers to the
original defending party, the defendant in a counterclaim, the cross-
defendant, or the third party defendant.
Section. 4. Splitting a single cause of action; effect of. – If two or more
suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others.
Splitting a single cause of action (BAR 1996, 1999, 2005)
Splitting a single cause of action is the act of instituting two or
more suits for the same cause of action (Sec. 4, Rule 2, Rules of Court).
In splitting a cause of action, the pleader divides a single cause of

28
action, claim or demand into two or more parts and brings a suit for
one such parts with the intent to reserve the rest for another separate
action.
Prohibition against splitting a single cause of action
Splitting a single cause of action is not allowed by the Rules of
Court. “A party may not institute more than one suit for a single cause
of action.” (Sec. 3, Rule 2, Rules of Court)
The practice of splitting a single cause of action is discouraged
because it breeds multiplicity of suits, clogs the court dockets, leads to
vexatious litigation, operates as an instrument of harassment, and
generates unnecessary expenses to the parties.
The rule against splitting a single cause of action applies not only
to complaints but also to counterclaims and cross claims.
Examples:
1. The act of a defendant in taking possession of the plaintiff’s land
by means of force and intimidation constitutes a single act of
dispossession but gives rise to two reliefs: (a) recovery of
possession and (b) damages arising from loss of possession.

2. An action for forcible entry should include not only the plea for
restoration of possession but also claims for damages arising out
of forcible entry.

3. As applied to Ejectment Case:

Two remedies, namely: (1) recovery of possession; and (2) recovery of

damages.

29
 To sue for ejectment and to subsequently sue for damages arising
from the same act of the defendant that gave rise to the ejectment
would be to split a single cause of action.
4. As applied to Action for Recovery of Property:

If the suit is brought for recovery of possession only without

claiming damages in the same action, a subsequent action for the
recovery of damages cannot be maintained without offending the rule
against splitting a single cause of action.
5. As applied to Action for Payment of a debt secured by a
mortgage:

For failure to pay a debt secured by a mortgage, the creditor has

but one cause of action against the debtor. The creditor cannot split up
this cause of action by filing a complaint for payment of the debt and
thereafter, filing another complaint for foreclosure of mortgage. The
creditor may file an ordinary action for collection or foreclosure of the
mortgage. An election of one operates as a waiver of the other.

BAR 2016
Elise obtained a loan of P3 Million from Merchant Bank. Aside
from executing a promissory note in favor of Merchant Bank, she
executed a deed of real estate mortgage over her house and lot as
security for her obligation. The loan fell due but remained unpaid;
hence, Merchant Bank filed an action against Elise to foreclose the real
estate mortgage. A month after, and while the foreclosure suit was
pending, Merchant Bank also filed an action to recover the principal
sum of P3 Million against Elise based on the same promissory note
previously executed by the latter.
30
             In opposing the motion of Elise to dismiss the second action on
the ground of splitting of a single cause of action, Merchant Bank
argued that the ground relied upon by Elise was devoid of any legal
basis considering that the two actions were based on separate
contracts, namely, the contract of loan evidenced by the promissory
note, and the deed of real estate mortgage.
             Is there a splitting of a single cause of action? Explain your
answer.
 SUGGESTED ANSWER:
             Yes, there is a splitting of a single cause of action.
             Under the Rules of Civil Procedure, there is a splitting of a single
cause of action if two or more suits are instituted on the basis of the
same cause of action. A cause of action is the act or omission by which
a party violates a right of another.
             Here, both suits, the foreclosure and the collection suit, arose
from the same cause of action, that is, the non-payment by Elise of her
P3 million loan from Merchant Bank.  The fact that the two actions
were based on separate contracts is irrelevant, what matters is that
both actions arose from the same cause of action. 
Effect of splitting a single cause of action (BAR 1998; 1999)
If two or more suits are instituted for a single cause of action, “the
filing of one or a judgment upon the merits in any one is available as a
ground for dismissal of the others” (Sec. 4, Rule 2, Rules of Court). The
remedy then of the defendant is to file a motion to dismiss.
(a)Hence, if the first action is pending when the second action is
filed, the latter or the second action may be dismissed based
on litis pendencia, there is another action pending between the
parties for the same cause.

31
 (b) If a final judgment had been rendered in the first action
when the second action is filed, the latter or the second action
may be dismissed based on res judicata, that the cause of
action is barred by a prior judgment.

Example 1: The plaintiff files an action against the defendant. Then the
plaintiff despite the pendency of the first action files another action
against the same defendant based on the same cause of action. The
defendant may file a motion to dismiss the second suit based on litis
pendencia or lis pendens, i.e., that there is another action pending
between the same parties for the same cause (Sec. 1[e], Rule 16, Rules
of Court.
Example 2: The plaintiff files an action against the defendant. After a
judgment is rendered on the first action filed by the plaintiff, the same
plaintiff files another suit against the same defendant based on the
cause of action subject of the earlier judgment. The defendant in this
case may file a motion to dismiss the second suit based on res judicata,
i.e., that the cause of action is barred by a prior judgment (Sec1[f], Rile
16, Rules of Court).
Section. 5. Joinder of causes of action. – A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following
conditions:
(a)The party joining the causes of action shall comply with the rules
on joinder of parties;
(b) The joinder shall not include special civil actions or actions
governed by special rules;
(c)Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be

32
 allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue
lies therein; and
(d) Where the claims in all the causes of action are principally
for recovery of money, the aggregate amount claimed shall be
the test of jurisdiction.

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

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

Joinder of causes of action has the object of avoiding multiplicity

of suits and obviating piecemeal litigation by including in one action all
claims by one party against another.

By joinder of causes of action is meant the process of uniting of

two or more demands or rights of action in one action. It is the joining
of several distinct, demands, controversies or rights of action in one
declaration, complaint or petition.
Example: If the defendant has two obligations in favor of the plaintiff,
one for P200, 000. 00 due on a certain date and another for P300, 000.
00, due on another date, the plaintiff has two causes of action against
the same defendant. Because of the rule permitting joinder of causes of
action, the plaintiff may file only one complaint for the recovery of both
debts. He is not however, obligated to file only one complaint because
the joinder of causes of action is merely permissive, not compulsory. He
may instead file two separate complaints. If he files an action to recover
the first debt, he may later file another complaint to recover the other
33
debt. The filing of the first is not a bar to the filing of the subsequent
complaint.
Requisites for joinder of cause of action
There are several limitations to the joinder of cause of action.
Thus, the rule provides that the joinder is subject to the following
conditions:
1. The party joining the causes of action must comply with the rules
on joinder of parties;

2. The joinder shall not include special civil actions, or actions

governed by special rules;

3. Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
therein; and

4. Where the claims in the causes of action are principally for the
recovery of money, the aggregate amount claimed shall be the
test of jurisdiction.

Two mayor types of joinders:

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

Where the causes of action to be joined are between the same

plaintiff and the same defendant, there is a joinder of causes of action

34
without a joinder of parties. In this type of joinder, the cause of action
joined does not have to arise out of the same transaction or series of
transactions. A common question of law or fact between or among
such causes of action is likewise not required.
Example:
Plaintiff, a resident of Manila has the following causes of actions
against Defendant, a resident of Quezon City: (1) collection of P150,
000. 00 under a promissory note executed in Quezon City in 1997 and
already due; (2) collection of p150, 000. 00 under a promissory note
executed in 1998 in Makati City and already due; (3) collection of P250,
000. 00 representing the value of a ring owned by Plaintiff bought by
Defendant and already due but still unpaid.
Observe that the enumerated causes of action arose from totally
unrelated transactions and are not bound by a common issue of fact or
law. They can nevertheless, be joined in one complaint pursuant to Sec.
5 of Rule 2 of the Rules of Court. In joining these causes of action which
are all for the recovery of money, jurisdiction shall be determined by
taking into account the aggregate amount of the claims.
(b) A joinder of causes of action which at the same time
involves a joinder of parties. (different plaintiff/s and/or different
defendant/s)

Where the joinder involves a joinder of parties because the causes

of action are not only between the same parties but involve other
persons as well, as when there are different defendants or different
plaintiffs, the rule requires compliance with the rules on joinder of
parties.
The following are the requisites for a joinder of parties:

35
 1. A right of relief in respect to or arising out of the same
transaction or series of transactions; and
2. A common question of law or fact. (Sec. 6, Rule 3, Rules of
Court)

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

36
BAR 1996
The complaint filed before the Regional Trial Court of Manila
states two (2) causes of action, one for Rescission of Contract and the
other for the Recovery of One Hundred Thousand Pesos, both arouse
out of the same transaction. Is joinder of the two causes of action
proper?
Suggested answer
If the causes of action are between the same parties, the causes
of actions may be joined in one complaint. While an action for
Rescission of Contract is cognizable by the RTC because it is an action
incapable of pecuniary estimation and the other is within the
jurisdiction of MTC, they may be joined because neither action is a
special civil action and there is no need for complying with the rules on
joinder of parties since there is only one plaintiff and one defendant.
The action was correctly filed in the RTC because one of the actions fall
within the jurisdiction of said court.
BAR 2015

Lender extended to Borrower a P100,000.00 loan covered by a

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

37
 a.) Did Lender correctly apply the totality rule and the rule on
joinder of causes of action?

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

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

b.) Should the court dismiss the case?  

 
Suggested answers
 
            a)  Yes Lender correctly applied the totality rule and the rule on
joinder of causes of action.
            Under the rule on joinder of causes of action, a party may in one
pleading assert as many causes of action as he may have against an
opposing party.  Under the totality rule, where the claims in all the
causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
           
Here the causes of action by Lender are all against borrower and
all the claims are principally for recovery of money.
           
Hence the aggregate amount claimed, which is P500,000 shall be
the test of jurisdiction and thus it is the RTC of Manila which has
jurisdiction.
           

38
 Although the rules on joinder of causes of action state that the
joinder shall not include special civil actions, the remedy resorted to
with respect to the third loan was not foreclosure but collection.  Hence
joinder of causes of action would still be proper. 
 
            b)  No, the court should not dismiss the case.

            The Supreme Court has held that subject-matter jurisdiction is

determined by the amount of the claim alleged in the complaint and
not the amount substantiated during the trial. (Dionisio v Sioson
Puerto, 31 October 1974).
           
Here the amount claimed was P500,000.  Even if the claim
substantiated during the trial was only P300,000 that is not
determinative of subject-matter jurisdiction.
           
Hence the argument that lack of subject-matter jurisdiction can
be raised at any time is misplaced since in the first place the RTC has
jurisdiction.
 
 Section. 6. Misjoinder of causes of action. – Misjoinder of causes of
action is not a ground for dismissal of an action. A misjoined cause of
action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately.
Effect of mis-joinder and non-joinder of parties
Sec. 11, Rule 3, Rules of Court: “Neither misjoinder nor non-
joinder of parties is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of any party or on its
own initiative at any stage of the action and on such terms as are just.
Any claim against a misjoined party may be severed and proceeded
with separately.”

39
 It is not the misjoinder or non-joinder of parties itself which would
cause the dismissal of an action but the failure to comply with the order
of the court to add or a failure to comply with the order of the court
without justifiable cause is one of the grounds for the dismissal of a
complaint.
Remedy in case of mis-joinder of actions
When there is a misjoinder of causes of action, the erroneously
joined cause of action can be severed and proceeded with separately
upon motion by a party or upon the court’s own initiative. Misjoinder is
not a ground for the dismissal of an action (Sec. 6, Rule 2, Rules of
Court). For example, if an action for forcible entry is joined in one
complaint with the causes of actions based on several promissory
notes, the complaint should not be dismissed based on the misjoinder
of the forcible entry case. Instead the cause of action predicated on
forcible entry may be severed from the complaint upon motion of a
party or by the court motu proprio and proceeded with separately in
another action.
Does a party still have a single cause of action if he seeks for a variery of
remedies? Explain.
YES. A cause of action may be single although the plaintiff seeks a
variety of remedies. The mere fact that the plaintiff prays for multiple
reliefs does not indicate that he stated more than one cause of action.
The prayer may be an aid in interpreting the petition and in
determining whether or not more than one cause of action is pleaded.
If the allegations of the complaint show one primary right and one
wrong, only one cause of action is alleged even though other matters
are incidentally involved, and although different acts, methods,
elements of injury, items of claims or theories of recovery are set forth.
Where two or more primary rights and wrongs appear, there is a
40
joinder of causes of action. (SPS. Decena vs. SPS. Piquero, G.R. No.
155736, Match 31, 2006.)
MAY A PLAINTIFF FILE A SUIT AGAINST A DEFENDANT AND JOIN IN ONE
SUIT SEVERAL CAUSES OF ACTION? WHAT WILL BE THE JURISDICTIONAL
TEST? EXPLAIN.
YES. The jurisdictional test is determined by the total demand of
all the causes of action irrespective of whether or not the causes of
action arose out of the same or different transactions. Hence, if the
total demand is within the jurisdiction of the Regional Trial Court, file it
there; if it is within the MTC, then file there. (Flores vs. Hon. Heilia S.
Mallare-Philipps, 144 SCRA 377.)
WHEN IS THE TOTALITY RULE APPLICABLE AND UNDER WHAT
CONDITION?
The Totality Rule is applicable in the following cases:
(a) In actions where the jurisdiction of the court is dependent on
the amount involved, the test of jurisdiction shall be the aggregate sum
of all the money demands, exclusive of interest and costs, irrespective
of whether or not the separate claims are owned by or due to different
parties. If any demand is for damages in a civil action, the amount
thereof must be alleged. (Iniego vs. Purganan, G.R. No. 166876, March
24, 2006, 485 SCRA 74.)
(b) Cases where there are two or more plaintiffs having separate
causes of action against two or more defendants joined in a complaint.
The Totality Rule applies under the condition that the causes of
action in favor of two or more plaintiffs or against two or more
defendants should arise out of the same transactions and there should

41
be a common question of law or fact. (Flores vs. Mallare-Philipps, 144
SCRA 377.)
IF THERE IS A COMPLAINT FOR SUM OF MONEY WITH DAMAGES WILL
THE AMOUNT OF DAMAGES BE ADDED TO THE SUM OF MONEY TO
DETERMINE THE COURT THAT HAS JURISDICTION? EXPLAIN.
NO. If the main action is for the recovery of sum of money and the
damages being claimed are merely the consequences of the main cause
of action, the same are not included in determining the jurisdictional
amount.
However, in cases where the claim for damages is the main cause
of action, or one of the causes of action, the amount of such claim shall
be considered in determining the jurisdiction of the court. (Soliven vs.
Fastforms Phil., Inc., G.R. No. 139031, October 18, 2004.)
GIVE EXAMPLES OF CASES WHERE THE ACTIONS ARE CONSIDERED AS
INCAPABLE OF PECUNIARY ESTIMATION.
Examples of actions that are incapable of pecuniary estimation
are those for (1) specific performance, (2) support, foreclosure of
mortgage, annulment of judgment (Amorganda vs. CA, 166 SCRA 203),
action questioning the validity of a mortgage (Bunayog vs. Tunos, 106
Phil. 715), action annulling a deed of sale or conveyance and to recover
the price paid (Phil. Farming Corp. Ltd., vs. Llanos 14 SCRA 949); action
for rescission which is a counterpart of specific performance (Lapitan
vs. Scandia, 24 SCRA 479).

42
 RULE 3
PARTIES TO CIVIL ACTIONS
Section 1. Who may be parties; plaintiff and defendant. – Only natural
or juridical persons, or entities authorized by law may be parties in a
civil action. The term “plaintiff” may refer to the claiming party, the
counter-claimant, the cross-claimant, or to the third (fourth, etc)-
party plaintiff. The term “defendant” may refer to the original
defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc)- party defendant.
Parties to a civil action
There are two main categories of parties to a civil action namely,
the plaintiff and the defendant (Sec. 1, Rule 3, Rules of Court)
The plaintiff is the claiming party or more appropriately, the
original claiming party and is the one who files the complaint.
The defendant does not only refer to the original defending party.
Who may be parties?
Only the following may be parties to a civil action:
1. Natural persons
2. Juridical persons,

Examples: (a) State and its political subdivisions; (b) Other

corporations, institutions and entities for public interest or purpose,
created by law (c) Corporations, partnerships and association for
private interest or purpose
3. Entities authorized by law.

43
 Examples: (a) corporation (b) partnership (c) estate of a deceased
person (d) legitimate labor organization (e) The Roman Catholic Church
Effect when a party impleaded is not authorized to be a party
1. Where the plaintiff is not a natural or a juridical person or an
entity authorized by law, a motion to dismiss may be filed on the
ground that “the plaintiff has no legal capacity to sue.”

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

person or an entity authorized by law, the complaint may be
dismissed on the ground that the “pleading asserting the claim
states no cause of action” or “failure to state a cause of action”
because a complaint cannot possibly state a cause of action
against one who cannot be a party to a civil action.

Section. 2. Parties in interest. – A real party in interest is the party

who stands to be benefited or injured by the judgment in the suit, or
to the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Real party in interest (BAR 1988; 1989)
“A real party in interest is the party who stands to be benefitted
or injured by the judgment in the suit, or the party entitled to the avails
of the suit.’ (Sec. 2, Rule 3, Rules of Court)
The determination of who the real party in interest requites the
going back to the elements of a cause of action and answering some
fundamental questions relative to its elements, thus: Who owns the
right violated and who suffered the injury as a consequence of the
violation? Obviously, the owner of the right violated and the one who
suffered the injury is the real party in interest as plaintiff. Who caused
44
the violation of the plaintiff’s right resulting to his injury? Undoubtedly,
the person who injured the plaintiff because of the infringement of the
latter’s right is the real party in interest as defendant.
Examples:
1. An action to recover corporate property. A stockholder is not
the real party interest in an action to recover corporate
property. The real party in interest being the corporation itself.

2. If A is the owner of the house and lot leased to Y. Through

fraud Z, succeeded in having the land registered in his name.
Between A and Y, A is the real party in interest in a suit
assailing the validity of the registration because what was
involved was the issue of ownership.

If Z by means of strategy or stealth, deprived Y of possession of

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

3. The manager of a partnership is not the real party in interest as

defendant in a suit involving the property registered in the
name of the partnership. It is the partnership which is the real
party in interest as defendant because the partnership has a
juridical personality separate and distinct from that of each of
the partners.

4. In an action for annulment of her marriage, the woman is the

real party in interest and not her father.
Section. 3. Representatives as parties. – Where the action is allowed
to be prosecuted or defended by a representative or someone acting

45
a fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
Who is a representative party?
Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case and shall be
deemed to be the real party in interest.
A representative may be the following:
a) A trustee of an express trust,
b) A guardian,
c) An executor or administrator, or
d) A party authorized by law or these Rules,
e) An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to
the principal.
This is a mandatory requirement because the beneficiary is
considered by the Rules of Court as the real party in interest. The
present requirement reinforces the rule that every action must be
prosecuted and defended in the name of the real party in interest.

46
Example:
A guardian may file a case for and in behalf of his ward or minor,
for the recovery of the latter’s property. Although it is the guardian who
filed the case, but the real party in interest is the ward, and for that
reason that the ward or minor must be included in the title of the case
and shall be deemed to be the real party interest. The caption of the
case reads: “Juan dela Cruz as guardian of minor Pedro Reyes,
petitioner versus Agapito Santos.”
Section. 4. Spouses as parties. – Husband and wife shall sue or be
sued jointly, except as provided by law.
What is the rule in case of spouses as party in an action?
Action may be prosecuted jointly by or against:
(a)Jointly by husband and wife;
(b) Except as provided by law.
The exceptions as may be provided by law are as follows, to wit:
1) Action involving the exclusive property of the spouse which are as
follows, to wit:

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

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

title;

(c)That which is acquired by right of redemption, by barter or

exchange with property belonging to only one of the spouse;
and

47
 (d) That which is purchased with exclusive money of the wife or
of the husband. (Art. 109 of the New Civil code)

(e) Spouses are judicially separated.

(f) When they have in fact been for more than a year.

(g) When there is a separation of property agreed upon in the

marriage settlement.

(h) If the administration of all property in the marriage has been

transferred to her or him.

(i) When the litigation is between the husband and the wife.

(j) If the suit concerns her paraphernal property or husband

capital.

(k) When the action is upon the civil liability arising from a
criminal offense.

(l) If the litigation is incidental to the profession, occupation or

business in which she or he is engaged.

(m) In an action upon a quasi-delict.

IS THERE A NEED FOR THE MAN TO BE JOINED AS A PARTY IN A SUIT

FILED BY THE WIFE IF THEY ARE LIVING SEPARATELY? WHY?

48
 No. The rule that the married woman may not sue or be sued
alone without joining her husband except when she is living separately
from her husband for a just cause is applicable where the husband has
abandoned or deserted his wife and children. From the very nature of
the situation, the wife must necessarily sue alone to protect her natural
right and manage the property during her husband’s absence. The
husband cannot be expected to be made party when it is precisely from
his inability to act or from the existence of the case that the wife
derives her cause of action. (Peyer vs. Martines, 88 Phil. 72.)
Section. 5. Minor or incompetent persons. – A minor or a person
alleged to be incompetent, may sue or be sued, with the assistance of
his father, other or guardian, or if he has none, a guardian ad litem.

What is the rule in case a party is a minor or incompetent?

A minor or a person alleged to be incompetent, may sue or be
sued, with the assistance of the following:
1. His father,
2. His mother,
3. guardian, or
4. If he has none, a guardian ad litem.
Section. 6. Permissive joinder of parties. – All persons in whom or
against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the actions; but the
court may make such orders as may be just to prevent any plaintiff or

49
defendant from being embarrassed or put to expense in connection
with any proceedings in which he may have no interest.
When is permissive joinder of parties allowed? Requirement.
All persons in whom or against whom any right to relief in respect
to or arising out of the same transaction or series of transactions is
alleged to exist, whether jointly , severally, or in the alternative, may,
except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, subject to the following
requirements:
(a)Where any question of law or fact common to all such plaintiffs
or to all such defendants may arise in the actions;

(b) The court may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may
have no interest.
When any of the two requirements for permissive joiner of parties
is not satisfied, then there is a case of misjoinder of parties. This may
well happen where there is no question of law common to the parties,
or where the claims by or against the parties do not arise from the
same transaction or series of transactions.
Although normally, a joinder of parties is permissive, the
permissive nature of a joinder does not apply when an indispensable
party is involved. An indispensable party shall be joined either a plaintiff
or defendant because without him the action cannot be finally
determined. The rules, therefore, makes the joinder compulsory.
Distinction between Joinder of Plaintiff (Sec. 6, Rule 3) and Joinder of
Causes of Action (Sec 5, Rule 2).

50
 The term “joinder of parties must be distinguished from the term
“joinder of causes of action.” The term “joinder of parties” properly
applies when two or more persons have a joint right in one claim, or
are jointly liable on one claim. There is actually “joinder of causes of
action” and not “joinder of parties” when two or more persons, each
having a cause of action against another person, join their causes of
action in one complaint or where a plaintiff having several causes of
action, eacvh against several persons, join these causes of action in one
complaint.
Example of Joinder of Parties:
(a) Several landowners may join together as plaintiffs in suing a
factory as party defendant for environmental and ecological
destruction on their property. In asmuch as joinder of parties is
permissive, then anyone of the several landowners may by
himself file a case against the factory owner/s.

(b) A property owner may file a case for forcible entry against
several persons as defendants, for unlawfully encroaching or
occupaying into his property. In a similar way, the property
owner may file a case against anyone of the several persons
who encroached or occupied his property.

(c)Where several passengers sustained physical injuries due to

the negligence of the driver, they may join together as plaintiff
in filing a civil case for damages against said driver. On the
theory that joinder of parties is permissive, then anyone of the
passengers may file a separate civil action against the driver.

51
 (d) In the same case above, anyone of the passengers may file a
civil for damages by himself, against the driver and the owner
or operator of the passenger jeep as defendants.
Section. 7. Compulsory joinder of indispensable parties. – Parties in
interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants.
Indispensable parties (BAR 1996)
An indispensable party is a real party-in-interest without whom no
final determination can be had of an action (Sec. 7, Rule 3, Rules of
Court)

To determine whether a person is an indispensable party, the

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

An outright dismissal is not the immediate remedy authorized by

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

The case of Pamplona Plantation Co. vs. Tinghil, 450 SCRA 421 is
the authority to support the view that an immediate dismissal of the

52
action when indispensable parties are not impleaded is not the
immediate procedural remedy.

WHAT SHOULD THE COURT DO IF AN INDISPENSABLE PARTY IS NOT

IMPLEADED IN A SUIT? WHY?
Suggested answer
If an indispensable party has not been joined or impleaded, it is
the duty of the court to stop the trial and order the inclusion of such
party. (Cortez vs. Avila, 101 Phil. 205). The presence of the same is a
condition sine qua non for the exercise of judicial power. (Borlasa vs.
Polistico, 47 Phil. 345). If not joined, the remedy is dismissal of the
action, if despite the order to amend and implead such party, the
plaintiff fails to amend. The dismissal is based on the failure to comply
with the order of the court and not due to non-joinder of party.
REASON. Absence of indispensable party renders all subsequent
acts of the court void for want of authority to act; the rule applies to
parties joined and to parties not joined. Alabang Development Corp. vs.
Valenzuela, 116 SCRA 261.)
For reason of equity and convenience, it is often best for the court
not to proceed if an indispensable party is absent and cannot be joined.
In some circumstances, however, a court may still hear a matter if an
indispensable is absent, but its judgment can affect only the interest of
the parties before it.
Example:
THE SPOUSES RAUL AND CRISTINA ACAMPADO OBTAINED A LOAN
FROM METROBANK SECURED BY A MORTGAGE OVER A PROPERTY
COVERED BY A TCT. A CERTAIN SY TAN SO FILED A COMPLAINT FOR
DECLARATION OF NULLITY OF THE TITLE BUT WITHOUT IMPLEADING
53
THE BANK ALTHOUGH THE MORTGAGE WAS REGISTERED. FOR FAILURE
TO PAY, THE BANK FORECLOSED THE MORTGAGE; CONSOLIDATED ITS
OWNERSHIP LATER WHEN THER WAS FAILURE TO REDEEM.
IS THE BANK AN INDISPENSABLE PARTY SUCH THAT WITHOUT IT BEING
IMPLEADED THE COURT HAS NOT ACQUIRED JURISDICTION OVER IT?
EXPLAIN.
The bank is an indispensable party because the nullification of the
title would necessarily adversely affect its property rights considering
that a real mortgage is a real right and a real property by itself.
An indispensable party is a party who has such an interest in the
controversy or subject matter that a final adjudication cannot be made,
in his absence, without injuring or affecting that interest; a party who
has not only an interest of such nature that a final decree cannot be
made without affecting his interest or leaving the controversy in such a
condition that its final determination may be wholly inconsistent with
equity and good conscience. It has also been considered that an
indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court which is
effective, complete, or equitable. Further, an indispensable party is one
who must be included in an action before it may properly go forward.
(Metrobank vs. Hon. Floro Alejo, G.R. No. 141970, September 10,
2001.)
WHAT IS THE NATURE OF THE DEFECT OF THE PLEADING IF AN
INDISPENSABLE PARTY IS NOT IMPLEADED? EXPLAIN.
Suggested answer
It is only a procedural defect, not fatal defect. It can be cured at
any stage of the proceedings even after judgment. Amendment to
implead them should be fully allowed, even on appeal, in fact even

54
after rendition of judgment where it appears that the complaint
otherwise indicates their identity and character as such indispensable
parties, since their presence is essential to the life of an action, for
without them, no judgment may be rendered. (Republic vs. SB, 240 SCA
376.)
MWSS FILED A SUIT TO RECOVER A PARCEL OF LAND WHICH HAS BEEN
CONVERTED INTO A SUBDIVISION WHERE LOTS WERE PARCELED OUT
TO OWNERS. THE SUIT HOWEVER DID NOT IMPLEAD ALL THE LOT
OWNERS, HENCE, A MOTION TO DISMISS ON THE GROUND THAT
INDISPENSABLE PARTIES WERE NOT IMPLEADED. IF YOU WERE THE
JUDGE, HOW WOULD YOU RULE ON THE MOTION? EXPLAIN.
Suggested answer
If I were the judge, I would issue an order for the inclusion of the
indispensable party and if my order is not followed then, I would
dismiss the action. Well-settled is the rule that owners of property over
which reconveyance is asserted are indispensable parties without
whom no relief is available and without whom the court can render no
valid judgment. (Acting Registrar of Land Title and Deeds of Pasay City
vs. RTC, Branch 51, Makati, 184 SCRA 622). Being indispensable parties,
the absence of these lot owners the suit renders all subsequent action
of the trial court null and void for want of authority to act, not only as
to the absent parties but even as to those present. (Lim Tanhu vs.
Ramolete, 66 SCRA 425). Thus, when indispensable parties are not
before the court, the action should be dismissed. (Note: The dismissal
shall be predicated on the failure of the party to comply with the
court’s order to include or implead an indispensable party.)(MWSS vs.
CA, 99 SCAD 591)

55
Additional examples of Indispensable Party:
1. In an action for rescission of a sale alleged to be fraudulent, the
vendor is an indispensable party;

2. In an action for reconveyance of property, the owners of the

property against whom reconveyance is asserted are
indispensable parties;

3. The person whose right to an office is challenged is an

indispensable party because he is the one who would be
directly affected by the decision therein.

4. An action for partition where all the co-owners are deemed

indispensable parties.

5. In patent law, a patent owner is an indispensable party to a

patent infringement suit brought by an exlusive licensee
against an alleged infringer. The patent’s owner rights would
be directly affected by a finding of invalidity or unenforceablity
of the patent claim.

Section. 8. Necessary parties. – A necessary party is one who is no

indispensable but who ought to be joined as a party if complete relief
is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action.
A necessary party is one who is not indispensable but who ought
to be joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the
claim subject of the action (Sec. 8, Rule 3, Rules of Court)

56
Examples:
1. A joint debtor is only a necessary party in a suit against his co-
debtor but indispensable in a suit against himself;

2. Sellers of land subsequently sold by the new owner to another

under an instrument which is the subject of an action for
reformation, is a necessary party;

3. In an action for ejectment filed by one co-owner, the other co-

owners although not indispensable parties under Art. 487 of the
Civil Code of the Philippines are nevertheless, necessary parties.

BAR 2019

Ms. A filed a complaint for damages against Ms. B, alleging that

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

Thereafter, Ms. A filed a motion for judgment on the pleadings,

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

57
 (a) Is Ms. A's motion for judgment on the pleadings proper?
Explain.

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

Explain.

(c) Assuming that XYZ Construction Co. is an indispensable party,

is its non-joinder a ground for the dismissal of the case? Explain.

Section. 9. Non-joinder of necessary parties to be pleaded. –

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

58
 2. A final decree can be had in a case even without a necessary party
because his interests are separable from the interest litigated in
the case.

Section. 10. Unwilling co-plaintiff. – If the consent of any party who

should be joined as plaintiff cannot be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.
Unwilling co-plaintiff
There are situations where a person who is supposed to be one of
the plaintiffs in the action in unwilling to join the suit. Sec. 10, Rule 3
supplies a remedy to such situation: “If the consent of any party who
should be joined as plaintiff cannot be obtained, he may be made a
defendant and the reason therefore shall be stated in the complaint.”
Before making said person a defendant, he should first be
requested to join as plaintiff unless the request would be futile. It is
also a condition to such joinder that the complaint alleges the reason
for not joining such party as plaintiff.
Examples:
1. C1 and C2 are the creditors of B for P100, 000. 00. C1 wants to
sue B after the latter refused to pay on maturity. C2, a
necessary party should be joined if complete relief is to be had
in the action. If for reasons of his own, C2 refuses to join in the
action after being asked to join as plaintiff, he may be
impleaded by C1 as a defendant but the reason for making C2 a
defendant must be stated in the complaint.

59
 2. In an action for partition where all the co-owners are deemed
indispensable parties, Sec. 1 of Rule 69 requires that all persons
interested in the property should be joined as defendants
Section. 11. Misjoinder and non-joinder of parties. – Neither
misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the action
and on such terms as are just. Any claim against a misjoined party
may be severed and proceeded with separately.
What are the effects in case of misjoinder or non-joinder of parties?
The effects in case of misjoinder or non-joinder of parties are:
(1)It is not a ground for dismissal of an action;

(2)Parties may be dropped or added by order of the court on

motion of any party or on its own initiative at any stage of the
action and on such terms as are just;

(3)Any claim against a misjoined party may be severed and

proceeded with separately.
BAR 2016
Hanna, a resident of Manila, filed a complaint for the partition of
a large tract of land located in Oriental Mindoro. She impleaded her
two brothers John and Adrian as defendants but did not implead Leica
and Agatha, her two sisters who were permanent residents of Australia.
            Arguing that there could be no final determination of the case
without impleading all indispensable parties, John and Adrian moved to
dismiss the complaint.

60
 Does the trial court have a reason to deny the motion? Explain
your answer.
Suggested answer
Yes, the trial court has a reason to deny the motion to dismiss.
Under the Rules of Civil Procedure, non-joinder of parties, even
indispensable ones, is not a ground of a motion to dismiss. [S11 R3;
Vesagas v. CA, 371 SCRA 508 (2001)]

BAR 2015

 Strauss filed a complaint against Wagner for cancellation of title.

Wagner moved to dismiss the complaint because Grieg, to whom he
mortgaged the property as duly annotated in the TCT, was not
impleaded as defendant.

a.)Should the complaint be dismissed?

b.) If the case should proceed to trial without Grieg being

impleaded as a party to the case, what is his remedy to protect his
interest?
 
Suggested answers
 
a) No, the complaint should not be dismissed.

            The Supreme Court has held that non-joinder of an indispensable

party is not a ground of a motion to dismiss. (Vesagas v. CA, 371 SCRA
508).
           

61
 Here although Grieg, the registered mortgagee, is an
indispensable party (Metrobank v. Alejo, 364 SCRA 813 [2001]), his non-
joinder does not warrant the dismissal of the complaint. 
 
            b)  The remedy of Grieg is to file a motion for leave to intervene.
           
Under Rule 19, a person who has a legal interest in the matter in
litigation may intervene in the action.
           
Here Grieg is a mortgagee and such fact was annotated in the
title.  Hence he has a legal interest in the title subject-matter of the
litigation and may thus intervene in the case.
 
 Section. 12. Class suit. – When the subject matter of the controversy
is one of common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of them which
the court finds to be sufficiently numerous and representative as to
fully protect the interest of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest.

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

62
 1. The subject matter of the controversy must be of common or
general interest to many persons (The subject matter must
refer to the physical facts, property or money, etc; it does not
refer to the crime or act of the defendant)

2. The persons are so numerous that it is impracticable to join all

as parties;

3. The parties actually before the court are sufficiently numerous

and representative as to fully protect the interests of all
concerned; and

4. The representatives sue or defend for the benefit of all (Sec.

12, Rule 13).

The rule requires that a class suit must have a commonality or

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

63
involved were similarly situated and the resolution of the issue could
not in any event be different as to any of them.

Additional examples:
(1)A large group of stockholders filing suit against a corporation for
an illegal act can qualify as a class suit (Pascual vs. Orozco, 64 Phil.
697)

(2)A suit filed on behalf of plantation labourers against sugar

planters and sugar central to enforce laborer’s rights under RA
No. 809 (The Sugar Act of 1952)

(3)Plaintiffs-minors duly represented and joined by their parents

instituted this tax-payers’ class suit versus the Secretary of DENR
to order the latter to cancel the timber license agreement (TLA)
and to cease and desist from renewing and granting new TLAs.
The suit was filed for themselves and others who are equslly
concerned about the preservation of natural resources but are so
numerous that it is impracticable to bring them all before the
court. The minors also asserverate that they represent their
generation as well as the generations yet unborn.
The case is a class suit: the subject matterof the complaint is of
common and general interrst not just several but to all citizens of the
Philippines. Parties are so numerous that it is impracticable, if not
totally impossible to bring them all before the court. Plaintiffs are so
numerous and representative enough to insure full protection of all
concerned interest. (Oposa vs. Factoran, G.R. No. 101083, July 30,
1993).

64
 This is a landmark decision of the Supreme Court of the
Philippines which recognizes the doctrine of Intergenerational
Responsibility on the environment in the Philippines legal system. The
case is a contributor to the development of international
environmental law.
Class Suit vs. Derivative Suit vs. Citizen Suit
Class suit, derivative suit, and citizen suit are all representative suits,
but distinctions lies with the following:
1. A class suit is filed regarding a controversy of common or
general interest in behalf of many persons so numerous that it
is impracticable to join all as parties, a number which the court
finds sufficiently representative who may sue or defend for the
benefit of al (Sec. 12, Rule 3).

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

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

3. A citizen suit is an action filed by any Filipino citizen in

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

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

PROPERTY? WHY?
In Sulo ng Bayan vs. Araneta, Inc., August 17, 1976, it was held
that there can be no class suit in actions to recover real property

65
against several persons occupying different portions. The reason is that
each person represents individual or separate interest, not common to
everyone.
BAR 1994
Four hundred residents of Barrio Ramos initiated as class action
suit through Albert, a former mayor of the town, to recover damages
sustained due to the exposure to toxic wastes and fumes emitted by
the cooking gas plant of Top Fuel Gas Corporation located in the town.
Is the class suit proper?
Suggested answer
The class suit is not proper. An essential element of a class suit,
among others, is that the subject matter of the controversy must be of
common or general interest to many persons. This requirement is not
met by the facts under considerations. Each of the plaintiffs has a
separate and distinct injury not shared by other members of the class
and as a consequences each supposed plaintiff has to prove his own
injury he suffered (Ortigas & Company Limited Partnership v. Ruiz, 148
SCRA 326)
BAR 1991
An airplane carrying 200 passengers crashed somewhere in the
jungles of Agusan. All the passengers and crew perished. Twenty (20)
relatives of the fatalities filed for themselves and in behalf of the
relatives of all those who perished in the mishap a class suit for
damages totalling P5million against the airline. The propriety of the
class suit is questioned by the defendant. Resolve the issue.
Suggested answer

66
 The class suit is not proper. An essential element of a class suit,
among others, is that the subject matter of the controversy must be of
common or general interest to many persons. This requirement is not
met by the facts under consideraiton. Each of the plaintiffs has a
separate and distinct injury not shared by other members of the class
and as a consequence each supposed plaintiff has to prove his own
injury he suffered.

BAR 1978
C, a non-stock corporation, filed an action in behalf of its
individual members numbering fifteen, for the recovery of ownership
and possession of certain parcels of land which belong to said members
in their individual capacities. X, the defendant, moved to dismiss the
case for lack of a cause of action.
1) Should the motion be granted or not? Reason.
2) Under the facts aforestated, can C validly contend that its
complaint is in the nature of a class suit? Reason.
Suggested answer
1. The motion should be granted. The corporation is not a real party
in interest in the action. Under Sec. 1 of the Corporation Code, a
corporation is an artificial being and thus, has a personality of its
own separate and distinct from the personalities of its members
or stockholders. A corporation, being an entity separate and
distinct from its members has no interest in the individual
property of its members.

2. The complaint is not in the nature of a class suit. For a class suit to
exist, the subject matter of the controversy must be of common

67
 or general interest to many persons. A class suit does not lie in
actions for the recovery of property where several persons claim
ownership of their respective portions of property, as each one
could allege and prove his respective right in a different way for
each portion of the land, so that they cannot all be held to have
identical title (Sulo ng Bayan, Inc. v. Araneta, Inc., 72 SCRA 347).
Sec. 12 of Rule 3 does not specify the number of persons to be
represented in a class suit. The persion however, must be “so
numerous that it is impracticable to join all as parties.” It is also
required by the same provision that the parties before the court must
be “sufficiently numerous and representative as to fully protect the
interest of all concerned
Note: In the United States, law firms make money filing class suits on
behalf of victims of toxic waste, or drugs that cause injury to foetuses
or cars that have faulty or bad sterring columns. Several cases were also
filed cigarette companies for because of scientific findings that smoking
causes cancer and other illnesses.
Section. 13. Alternative defendants. – Where the plaintiff is uncertain
against who of several persons he is entitled to relief, he may join any
or all of them as defendants in the alternative, although a right of
relief against one may be inconsistent with a right of relief against the
other.
Sec. 13 of Rule 3 permits a plaintiff to sue two or more defendants
in the alternative whenever he is not sure who among them is
responsible for the loss suffered by him. The said Section says: “Where
the plaintiff is uncertain against who of several persons he is entitled
to relief, he may join any or all of them as defendants in the
alternative, although a right of relief against one may be inconsistent
with a right of relief against the other.”
68
 This joinder in the alternative is designed to prevent multiplicity of
suits and should be liberally construed as a device of convenience.
Example 1
Mr P, a passenger in a jeepney who broke his ribs when the jeepney
collided with a bus, may join the drivers of both vehicles as alternatives
defendants if he is not certain who between the two drivers was
responsible for his injuries.
Example 2
Leon, in Manila, sold a quantity of rice for P200, 000. 00 to Luis in
Baguio, and shipped the rice through Rita transportation. Luis refused
to pay Leon, claiming that the rice was never delivered to him. Rita
Transportation, on the other hand, claimed that it had delivered the
rice to Luis. Whom should Leon sue?
Leon should sue both Luis and Rita Transportation under one complaint
as alternative defendants. Under the Rules of Court, where the plaintiff
is uncertain against who of several persons he is entitled to relief, he
may join any or all of them as defendants in the alternative, although a
right of relief against one may be inconsistent with a right to relief
against the other.
Section. 14. Unknown identity or name of defendant. – Whenever the
identity or name of a defendant is unknown, he may be sued as the
unknown owner, heir, devisee, or by such other designation as the
case may be require; when his identity or true name is discovered, the
pleading must be amended accordingly.
What is the rule in case the identity or name of the defendant is
unknown in an action?

69
 Whenever the identity or name of a defendant is unknown, he
may be sued as:
a. The unknown owner,
b. Unknown heir,
c. Unknown devisee, or
d. By such other designation as the case may be require;

When his identity or true name is discovered, the pleading must

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

70
and once his name would discovered, an amendment of the complaint
would be made later on.
Section. 15. Entity without juridical personality as defendant. – When
two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of
the person composing said entity must all be revealed.
What is the rule in case a party in an action is an entity without
juridical personality?
When two or more persons not organized as an entity with
juridical personality enter into a transaction, it has the following effects:
1. They may be sued under the name by which they are generally
or commonly known.

However, an entity without juridical personality cannot sue or

file a case against another for the simple reason that not being
registered or organized pursuant to the laws of the Philippines,
it has no legal personality to do so.

2. In the answer of such defendant, the names and addresses of

the persons composing said entity must all be revealed.
Example 1:
In the case of Anti-Chinese League vs. Felix, 77 Phil. 1012, the
Supreme Court ruled that although an entity without juridical
personality cannot sue under the name by which it is commonly known,
such entity may be sued under certain circumstances.

71
Example 2:
A, B and C organized and trasacted business through ABC Trading
Corporation, a corporation which has not been duly registered with the
government agency concerned, and entered into commercial
transactions under the name ABC Trading Corporation. The ABC Trading
Corporation is classified as an Entity without Juridical Personality and as
such it can be sued as party defendant but it cannot sue as party
plaintiff. As defendants, in their Answer, they are required to reveal the
names and addresses of the persons composing ABC Trading
Corporation.
Section. 16. Death of party; duty of counsel. – Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address
of his legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the
deceased party within the specified period, or if one so named shall
fail to appear within the specified period, the court may order the
opposing party, within a specified time, to procure the appointment
of an executor or administrator for the estate of the deceased and the

72
latter shall immediately appear for and on behalf of the deceased. The
court charges in procuring such appointment, if deprayed by the
opposing party, may be recovered as costs.
To whom applicable
The above provision applies when in the course of the trial, death
occurs either of the plaintiff or the defendant, and the obligation to
inform the court about the death of the party revolves around their
counsel of record.
Effect of the death of a party on the attorney-client relationship
The death of the client extinguishes the attorney-client
relationship and divests a counsel of his authority to represent the
client. Accordingly, a dead client has no personality and cannot be
represented by an attorney. Neither does he become the counsel of the
heirs unless his services are engaged by said heirs.
Duty of counsel upon the death of his client
Whenever a party to a pending action dies, it is the duty of the
counsel of the deceased party to inform the court of such fact within
thirty (30) days after such death. The counsel has also the obligation to
give the name and the address of the legal representative of the
deceased. This duty is mandatory and failure to comply with this duty is
a ground for disciplinary action.
Action of court upon notice of death; effect of death on the case (BAR
2009)
Upon receipt of the notice of death, the court shall determine
whether or not the claim is extinguished by such death. If the claim
survives, the court shall order the legal representative or
representatives of the deceased to appear and be substituted for the

73
deceased within thirty (30) days from notice. The substitution of the
deceased would not be ordered by the court in cases where the death
of the party would extinguish the action because substitution is proper
only when the action survives.
No requirement for service of summons
Service of summons is not required to effect a substitution.
Nothing in Sec. 16 of Rule 3 mandates service of summons. Instead of
service of summons the court shall, under the authority of the same
provision, order the legal representative of the deceased to appear and
be substituted for the said deceased within thirty (30) days from notice
(BAR 1999).
Purpose and importance of substitution of the deceased.
The purpose behind the rule on substitution of parties is the
protection of the right of every party to due process. It is to ensure that
the deceased would continue to be properly represented in the suit
through the duly appointed legal representative.
Non-compliance with the rules on substitution of a deceased
party renders the proceedings of the trial court infirm because the
court acquired no jurisdiction over the person of the legal
representative of heirs of the deceased, because no man should be
affected by a proceeding to which he is a stranger.
Examples of actions which survive the death of a party (BAR 2011)
Certain actions survive the death of a party such as:
1. Actions to recover real and personal property from the estate;
2. Action to enforce a lien thereon; and
3. Action to recover damages for an injury to person or property;
4. Action to recover damages arising from delicts;

74
 5. Action based on the tortious conduct of the defendant;
6. Action for quieting of title with damages
7. Action for ejectment;
8. Action for the recovery of money, arising from a contract express
or implied

DURING THE PENDENCY OF AN ACTION FOR RECOVERY OF POSSESSION

OF A REAL PROPERTY, THE PLAINTIFF DIED SURVIVED BY SEVERAL
HEIRS. THERE WAS A NOTICE OF DEATH FILED WITH THE COURT BUT
THE LATTER DID NOT ISSUE AN ORDER REQUIRING THE APPEARANCE
OF THE REPRESENTATIVES. IT MERELY ISSUED AN ORDER ADMITTING
THE MOTION FOR SUBSTITUTION. TRIAL WAS CONDCUTED AND A
JUDGMENT WAS RENDERED. SOME OF THE HEIRS CONTENDED THAT
THE JUDGMENT IS NOT BINDING UPON THEM AS THEY WERE NOT
NOTIFIED OF THE PURPORTED SUBSTITUTION, HENCE, THE ENTIRE
PROCEEDINGS ARE VOID FOR LACK OF JURISDICTION OVER THEIR
PERSONS. IS THE CONTENTION CORRECT? WHY?
Suggested answer
YES. Under the Rules, in case of the death of a party and due
notice is given to the trial court, it is the duty of the court to order the
deceased’s legal representative or heir to appear for the deceased.
Otherwise, the trial held by the court without appearance of the
deceased’s legal representative or substitution of heirs and the
judgment rendered after trial, are null and void.
Non-compliance with the rule on substitution of a deceased party
renders the proceedings and judgment of the trial court infirm because
the court acquired no jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial and the judgment
would be binding. In other words, a party’s right to due process is at

75
stake. In Vda. De Salazar vs. CA, 250 SCRA 305, it was said that the court
should not lose sight of the principle underlying the general rule that
formal substitution of heirs must be effectuated for them to be bound
by a subsequent judgment. Such had been the general rule established
not because the rule on substitution of heirs and that on appointment
of a legal representative are jurisdictional per se but because non-
compliance therewith results in the undeniable violation of the right to
due process of those who, though not duly notified of the proceedings,
are substantially affected by the decision rendered therein. (Brioso vs.
Rili-Mariano, G.R. No. 132765, January 31, 2003.)
IT IS A REQUIREMENT THAT IF THERE IS A SUIT BETWEEN MEMBERS OF
THE SAME FAMILY, THERE MUST BE AN ALLEGATION OF SERIOUS
EFFORTS TOWARDS SETTLEMENT. IS THE RULE APPLICABLE IF ONE
PARTY IS NOT A MEMBER OF THE SAME FAMILY? EXPLAIN.
Suggested answer
NO. Where one of the parties to a civil litigation is not a member
of the family, some of whose members are adverse parties to the said
suit, lack of earnest efforts to reach a compromise should not be
considered a prerequisite to the maintenance of an action. It is neither
practical nor fair that the termination of the rights of a stranger to the
family who just happened to have innocently acquired some kind of
interest in any right or property disputed among its members should be
made to depend on the way the latter would settle their differences
among themselves. (Guerrero vs. RTC, province of Ilocos Norte, G.R.
No. 109068, January 10, 1994.)
Section. 17. Death or separation of a party who is a public officer. –
When a public officer is a party in an action in his official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office,
the action may be continued and maintained by or against his
76
successor if, within thirty (30) days after the successor takes office or
such time as may be granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial need for continuing
or maintaining it and that the successor adopts or continues or
threatens to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless
expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard.
What are the effects in case of death or separation of a party who is a
public officer?
When a public officer is a party in an action in his official capacity
and during its pendency dies, resigns, or otherwise ceases to hold
office, the action may be:
1. Continued and maintained by or against his successor if, within
thirty (30) days after the successor takes office or such time as
may be granted by the court, it is satisfactorily shown to the
court by any party that there is a substantial need for
continuing or maintaining it and that the successor adopts or
continues or threatens to adopt or continue the action of his
predecessor.

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

affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an
opportunity to be heard.
Examples:
(1)The Secretary of the Department of Health is a party plaintiff in a
civil case for damages for beach of contract against a supplier of

77
 office supplies, and during the pendency of the trial, dies or
resigns, in this event the case may be continued and maintained
by his successor upon proper substitution.
(2)If the Secretary of Department Works and Highways is a party
defendant in a civil case for recission of contract with damages
files by a contractor, and while the case in pending trial, dies or
resigns, the case may be continued and maintained against his
successor. However, the Rules require that he should be given
reasonable notice of the application for substitution and accorded
procedural due process.
Section. 18. Incompetency or incapacity. – If a party becomes
incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the incompetent
or incapacitated person assisted by his legal guardian or guardian ad
litem.
What is the effect in case a party to the action becomes incompetent or
incapacitated?
If a party becomes incompetent or incapacitated, the court, upon
motion with notice, may allow the action to be continued by or against
the incompetent or incapacitated person assisted by his legal guardian
or guardian ad litem.
Examples:
(1) Pending trial for the civil case of collection of sum of money, the
plaintiff, due to old age, becomes incompetent. In this case, upon
proper motion for substitution, the incompetent plaintiff may be
substituted by his legal guardian or guardian as litem.

78
 (2)In a civil case for unlawful detainer, and while the case is on trial,
the defendant becomes incapacitated because of vehicular
accident, upon appropriate motion, he may be assisted by his
legal guardian or guardian ad litem.
Section. 19. Transfer of interest. – In case of any transfer of interest,
the action may be continued by or against the original party, unless
the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original
party.
Basically, a transfer of interest is when title to property or assets
change from one person to another. This is usually accomplished
trhough sale, though, it csn also happen by means or a gift.
What is the effect in case of transfer of interest by the party?
In case of any transfer of interest by the party, the court may
allow:
1. The action may be continued by or against the original party,
2. Unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined with the
original party.
Examples
(1) Plaintiff filed a case for Recovery of Possession and Ownership
against defendant of a certain parcel of land. Pending trial of
the case, defendant transferred his title over said disputed land
to another person. Under the above Section, the action for
Recovery of Possesison and Ownership may be continued
against the original defendant or upon motion, the court may
direct the person to whom the interest was transferred to be

79
 substituted in the action or joined as party-defendant with the
original defendant.

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

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

80
What is the effect in case of death of a party in action based on a
contractual money claims.
When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of final
judgment in the court in which the action was pending at the time of
such death, the case shall:
1. It will not be dismissed but shall instead be allowed to continue
until entry of final judgment; and

2. In case of a favorable judgment obtained by the plaintiff therein

shall be enforced in the manner especially provided by these
Rules for prosecuting claims against the estate of a deceased.
For example, during the pendency of a civil case for sum of money,
the defendant dies before final judgment, the case shall not be
dismissed but instead it shall be allowed to continue upon proper
substitution. In the event that the judgment will be favourable to the
plaintiff, said judgment shall be enforced by filing a money claim
against the estate of the deceased defendant.
For ready reference, Sec. 1 of Rule 87 of the Rules of Court
provides for the rules in action which may not be brought against the
executor or administrator.
RULE 87
ACTIONS BY AND AGAINST THE EXECUTORS AND AMINISTRATORS
Sec. 1. Actions which may and which may not be brought against
executor or administrator. – No action upon a claim for the recovery of
money or debt or interest thereon shall be commenced against the
executor or administrator; but to recover real or personal property or

81
an interest therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or
personal, may be commenced against him.

Action which may not be brought against the executor or administrator

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

The aforementioned instances are deemed actions that survive the

death of the decedent.

Section 21.Indigent party. — A party may be authorized to litigate his

action, claim or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one who
has no money or property sufficient and available for food, shelter
and basic necessities for himself and his family.

82
Such authority shall include an exemption from payment of docket
and other lawful fees, and of transcripts of stenographic notes which
the court may order to be furnished him. The amount of the docket
and other lawful fees which the indigent was exempted from paying
shall be a lien on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.

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

83
If a party is declared by the court as an indigent party the authority
shall include:

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

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

BAR 2017

Spouses Marlon and Edith have three (3) children ages 15, 12 and
7, who are studying at public schools. They have a combined gross
monthly income of P30,000.00 and they stay in an apartment in Manila
with a monthly rent of P5,000.00. The monthly minimum wage per
employee in Metro Manila does not exceed P13,000.00. They do not
own any real property. The spouses want to collect a loan of
P25,000.00 from Jojo but do not have the money to pay the filing fees.

[a] Would the spouses qualify as indigent litigants under Section 19,
Rule 141 on Legal Fees?

[b] If the spouses do not qualify under Rule 141, what other remedy
can they avail of under the rules to exempt them from paying the filing
fees?

Suggested answer: 

(a)No, the spouses would not qualify as indigent litigants under

Section 19, Rule 141 since their combined gross monthly income
of P30,000 exceeds P26,000, the amount double the monthly
minimum wage.
84
 

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

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

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

Sample Form

MOTION TO PROSECUTE AS PAUPER LITIGANT

COMES NOW, the plaintiff, through the undersigned counsel and

unto this Honorable Court, most respectfully moves:

1. That at present plaintiff is jobless and has no means of

livelihood and cannot afford to pay the required docket fees;
2. That plaintiff through counsel most respectfully moves that he
be allowed to prosecute as pauper litigant and be exmpted
from the payment of the required docket fee and other lawful
fees;

WHEREFORE, plaintiff prays that he be allowed to prosecute as

pauper litigant and be exempted from the payment of the required
dicket fee and other lawful fees based on the above reasons.
85
 Such other relief as may be deemed just and equitable under the
premises are likewise prayed for.

Section. 22. Notice to the Solicitor General. – In any action involving

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

(2) In a Petition for Quo Warranto questioning the legality of the

appointment of a public officer, the Petition shall be initiated by
the Office of the Solicitor General.
86
 RULE 4
VENUE OF ACTIONS
Section 1. Venue of real actions. – Actions affecting title to or
possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in
the municipal trial court of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
Define venue
Venue is the place, or geographical area in which a court with
jurisdiction may hear and determine a case or the place where a case is
to be tried.
Venue is the place where an action must be instituted and tried. It
relates to the place of trial or geographical location in which an action
or proceeding should be brought and not to the jurisdiction of the
court. (Phil. Banking Corp. vs. Tensuan, 48 SCAD 598).
Venue is not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is
not a matter of jurisdiction.
Venue of real actions (BAR 2009)
1. Actions affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court which
has jurisdiction over the area wherein the real property involved,
or a portion thereof, is situated

87
 Example:
(a)Actions to recover ownership over real property are real
actions and must be filed in the place where the real property
is located.

(b) Actions for unlawful detainer, forcible entry and accion

publiciana are real actions and must be likewise filed in the
place where the subject property is situated.

BAR 2009
Angelina sued Armando before the Regional Trial Court (RTC) of
Manila to recover ownership and possession of two parcels of land; one
situated in Pampanga, and the other in Bulacan. May the action
prosper?
Suggested answer
No, the action may not prosper, because under R.A. no. 7691,
exclusive original jurisdiction in civil actions involve title to, or
possession of real property or any interest therein is determined on the
basis of the assessed value of the land involved, whether it should be
P20, 000. 00 in the rest of the Philippines, outside Metro Manila with
courts of the first level or with the Regional Trial court. The assessed
value of the parcel of land in Pampanga is different from the assessed
value of the land in Bulacan. What is involved is not merely a matter of
venue, which is waivable, but of a matter of jurisdiction. However, the
action may prosper if jurisdiction is not in issue, because venue can be
waived.
Section. 2. Venue of personal actions. – All other actions may be
commenced and tried where the plaintiff or any of the principal

88
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where
he may be found, at the election of the plaintiff.
Venue of personal actions (BAR 2011)
1. The venue in personal actions is where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the
principal defendants reside, at the election of the plaintiff.

2. If the defendant is a non resident, the venue is where the plaintiff

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

Example:
Actions for damages and actions to collect a sum of money are
personal actions, hence must be filed in either the residence of the
plaintiff or the residence of the defendant at the election of the
plaintiff.
Section. 3. Venue of actions against non-residents. – If any of the
defendants does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff, or any property
of said defendant located in the Philippines, the action may be
commenced and tried in the court of the place where the plaintiff
resides, or where the property or any portion thereof is situated or
found.
Venue of actions against non-residents affecting the personal status of
the plaintiff; actions affecting property of the non-resident in the
Philippines.

89
 1. The rule on venue under Sec. 3 of Rule 4 of the Rules of Court
applies when the following concur:

(a)Any of the defendants is a non-resident and at the same time is

not found in the Philippines;

(b) The action affects the personal status of the plaintiff; or

(c)The action affects any property of the non-resident defendant

located in the Philippines.

The action in the above situations may be commenced and tried

in the court of the place where the plaintiff resides, or where the
property or any portion thereof is situated or found (Sec. 3, Rule 4,
Rules of Court).
Examples:
(1)An action for Declaration of Nullity of Marriage is an action which
affects the personal status of the plaintiff, and if at the time of the
filing of the actions, the defendant, who is a citizen of Korea, is a
non-resident and at the same time is not found in the Philippines,
the said action may be commenced and tried in the place where
the plaintiff resides.

(2)An action to Impugn the Legitimacy of a Person is an action which

affects the personal status of the plaintiff, against a non-resident
defendant and not found in the Philippines, venue is the place
where the plaintiff resides.

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 (3)An action for Recovery of Possession or for Recovery of
Ownership involving real property located in the Philippines,
against a non-resident defendant, may be commenced and tried
in the place where the property or any portion thereof is located.

(4)An action for the Nullity of Title is an action which affects the
property of the non –resident defendant and who is not found in
the Philippines, venue is the place where the property is situated.
Section. 4. When Rule not applicable. – This Rule shall not apply –
(a)In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof.

WHEN THE RULES ON VENUE DO NOT APPLY

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

Example:

In a Petitioon for Quo Warranto initiated by the Office of the

Solicitor General, the action may be brought in a Regional Trial Court in
the City of Manila, in the Court of Appeals, or in the Supreme Court.

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

STIPULATIONS ON VENUE (BAR 1997; 2001)

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

DISMISSAL BASED ON IMPROPER VENUE

1. A motu proprio dismissal based on improper venue is plain error.

2. It was similarly ruled that a court may not dismiss an action motu
proprio on the ground of improper venue as it is not one of the

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 grounds wherein the court may dismiss an action motu proprio on
the basis of the pleadings.

WHEN COURT MAY MAKE A MOTU PROPRIO DISMISSAL BASED ON

IMPROPER VENUE
1. Rules on Summary Procedure
2. Small Claims Cases

DENIAL OF A MOTION TO DISMISS BASED ON IMPROPER VENUE; NO

APPEAL
If a motion to dismiss based on improper venue is denied, may
the defendant appeal? He cannot. An order denying a motion to
dismiss is merely interlocutory. It is not final.
VENUE DISTINGUISHED FROM JURISDICTION (BAR 2006)
1. Jurisdiction is the authority to hear and determine a case; venue is
the place where the case is to be heard or tried;

2. Jurisdiction is a matter of substantive law; venue, of procedural

law;

3. Jurisdiction establishes a relation between the court and the

subject matter; venue, a relation between plaintiff and defendant,
or petitioner and respondent;

4. Jurisdiction is fixed by law and cannot be conferred by the parties;

venue may be conferred by the act or agreement of the parties;

5. Venue is procedural, not jurisdictional;

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 6. The court may dismiss an action motu proprio in case of lack of
jurisdiction over the subject matter but not for improper venue;

7. Jurisdiction over the subject matter may be raised at any stage of

the proceedings since it is conferred by law, although a party may
be barred from raising it in the ground of estoppels.

Where should action affecting title to or possession of real property or

interest be commenced?
Actions affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved, or a
portion thereof, is situated. (Sec. 1)
Example 1:
Etik is the owner of a parcel of land. Berto forged Etik’s signature
and transferred the land under his name. If Etik should file an action for
reconveyance, where should he file the action?
It should be filed in the proper court which has jurisdiction over
the area wherein the real property involved or a portion thereof, is
situated. (Sec.1, Rule 4). This is so because the action affects the tile
over the land.
Example 2:
Alberto is the owner of a parcel of land situated in Jaro, Iloilo City.
Braulio is in possession of the same and Alberto would like to recover
possession. In what court should such an action to recover possession
be filed? Why?

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 It should be filed in the proper court where the property or any
part thereof is situated. The reason for the law is that the action
involves or affects the possession over the land.
Example 3:
Andrew is the owner of a parcel of land which he mortgaged with
Brandon to secure the payment of an obligation. In case Andrew does
not pay his obligation, in what court should the judicial foreclosure of
the mortgage be filed? Why?
It should be filed in the proper court of the place where the
property is situated. The reason for the rule is that the action for
foreclosure affects the interest on the land.
In what court should a forcible entry or unlawful detainer case be filed?
Forcible entry and detainer actions shall be commenced and tried
in the municipal trial court of the municipality or city wherein the real
property involved or a portion thereof, is situated. (Hoechst Phil. Inc.
vs. Torres, 83 SCRA 297).
ANNA, a resident of Passi City, Iloilo, borrowed money from
Barbie, a resident of Dumangas, Iloilo. In case Anna fails to pay, where
should Barbie commence the action? Explain.
Barbie may commence the action against Anna either in the
proper court of Passi City or Dumangas. This is so because the venue of
personal actions may be commenced and tried where the plaintiff or
the defendant resides at the election of the plaintiff. (Sec.2). While the
choice is given to the plaintiff, it should not be capricious. (487 SCRA
462).

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

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

Example:
Ambrosio is the owner of a house and lot located in Pavia, Iloilo,
being leased to Brenda. In the lease contract, they agreed that any
action to enforce the contract shall be filed exclusively in the proper
court of Dumangas, Iloilo. May the lessor file such suit in Dumangas,
Iloilo even if the Rules provide that the venue of unlawful detainer
cases is in the court where the property is situated? Why?
Yes, it can be filed in Dumangas, Iloilo because the parties have
agreed in writing before the filing of the action on the exclusive venue
of such action. The basis of the rule is that venue can be agreed upon.
In the problem above, suppose the lessor filed the action in Pavia,
Iloilo, and you were the counsel for Brenda, what course of action
would you do? Why?
I would contend that there is improper venue since the
agreement as to venue is exclusive. In Polytrade Corp. vs. Blanco, 30
SCRA 187, it was said that if the parties agree in writing before the
filing of the action that the same shall be filed exclusively in a certain

96
place, it cannot be filed in another place even if that place is the
residence of the parties or the location of the real property involved.
Example:
The parties in a contract stipulated that “all suits arising out of this
Agreement shall be filed within the proper courts of Quezon City.” Is
this stipulation exclusive? Why?
No. If the parties intend in their contract that the place specified
as the venue of all suits is exclusive, they must employ a categorical and
suitable limiting language, that they wish the venue of all actions
between them to be laid only and exclusively at a definite place,
otherwise it is permissive. The fact that in their agreement the parties
specify only one of the venues mentioned in Rule 4 or fix a place for
their actions different from those specified in said rule, does not
without more, suffice to characterize the agreement as a restrictive
one. There must be accompanying language clearly and categorically
expressing their purpose and design that actions between them be
litigated only at the place named by them. Any doubt or uncertainty as
to the parties’ intentions must be resolved against giving their
agreement a restrictive or mandatory aspect. (Unimasters
Conglomeration, Inc. vs. CA, 79 SCAD 241.)
The rule is that, if an action is filed at a wrong venue, a motion to
dismiss must be filed on the ground of improper venue, otherwise, it is
deemed waived. Is the waiver applicable if the action is a real action?
Yes. If wrong venue is not properly raised in a motion to dismiss,
the same is considered waived and the court would proceed in
perfectly regular fashion if it then tried and decided the action. This is
also true of real actions. Even if a case affecting title to, or for recovery
of possession, or for partition or condemnation of, or foreclosure of

97
mortgage on real property were commenced in a place other than
where the real property or any part thereof is located, if no objection is
seasonably made in a motion to dismiss, the objection is deemed
waived, and the court would be acting entirely within its competence
and authority in proceeding to try and decide the suit.
BAR 2016 
        After working for 25 years in the Middle East, Evan returned to the
Philippines to retire in Manila, the place of his birth and childhood. Ten
years before his retirement, he bought for cash in his name a house and
lot in Malate, Manila. Six months after his return, he learned that his
house and lot were the subject of foreclosure proceedings commenced
by ABC Bank on the basis of a promissory note and a deed of real estate
mortgage he had allegedly executed in favor of ABC Bank five years
earlier.
            Knowing that he was not in the country at the time the
promissory note and deed of mortgage were supposedly executed,
Evan forthwith initiated a complaint in the RTC of Manila praying that
the subject documents be declared null and void.
             ABC Bank filed.a motion to dismiss Evan's complaint on the
ground of improper venue on the basis of a stipulation in both
documents designating Quezon City as the exclusive venue in the event
of litigation between the parties arising out of the loan and mortgage.
             Should the motion to dismiss of ABC Bank be granted? Explain
your answer.
SUGGESTED ANSWER:
            No, the motion to dismiss of ABC Bank should not be granted.
            In a case involving similar facts, the Supreme Court held that a
party is not bound by a venue stipulation where he directly assails on
the ground of forgery the validity of the contracts containing the venue
stipulation. The reason is that such a party cannot be expected to

98
comply with the venue stipulation since his compliance therewith
would mean an implicit recognition of the validity of the contracts he
assails. [Briones v. Cash Asia Credit Corp., 14 January 2015, Perlas-
Bernabe, J.]
 
May the trial court motu proprio dismiss a complaint on the ground of
improper venue?
NO. Unless and until the defendant objects to the venue in a
motion to dismiss, the venue cannot be truly said to have been
improperly laid, as for all practical intents and purposes, the venue,
though technically wrong, may be acceptable to the parties for whose
convenience the rules on venue had been devised. The trial court
cannot preempt the defendant’s prerogative to object to the improper
laying of the venue by motu proprio dismissing the case. Indeed, it was
grossly erroneous for the trial court to have taken a procedural shortcut
by dismissing motu proprio the complaint on the ground of improper
venue without first allowing the procedure outlined in the Rules of
Court to take its proper course. Although we are for the speedy and
expeditious resolution of cases, justice and fairness take primary
importance. The ends of justice require that respondent trial court
faithfully adhere to the rules of procedure to afford not only the
defendant, but the plaintiff as well, the right to be heard on his cause.
(Dacoycoy vs. IAC, 195 SCRA 641).
Example:
Xerxes is bound for Samar. He boarded a vessel. The venue of
action stated in the ticket of Xerxes is in the City of Manila, but Xerxes is
a resident of Samar. Rule on the validity of the stipulation.
The stipulation is not valid.

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 Where the stipulation as to venue in a passenger ticket of a vessel
would be contrary to public policy making courts inaccessible to all who
may have need of their services, the stipulation is void and
unenforceable. (Sweet Lines, Inc. vs. Teves, 83 SCRA 361).
In Hoechst Phils. Vs. Torres, 83 SCRA 297, it was ruled that
agreements as to venue are oppressive when the stipulations work
injustice or deny the parties concerned access to court by reason of
poverty.
Example:
The Articles of Incorporation of ABC Corporation states that its
principal office is in Cebu. If it enters into a contract without specifying
where a suit should be filed, where should such action be filed? Explain.
In the absence of any stipulation to the contrary, a suit against
ABC Corporation is supposed to be filed in Cebu.
A corporation has no residence in the same sense in which this
term is applied to a natural person. But for practical purposes, a
corporation is in a metaphysical sense a resident of the place where its
principal office is located as stated in the Articles of Incorporation.
(Cohen vs. Benguet commercial Company, Ltd., 34 Phil. 526; Clavecilla
Radio System vs. antillo, 19 SCRA 379). The Corporation Code precisely
requires each corporation to specify in its Articles of Incorporation the
“place where the principal office of the corporation is to be located
which must be within the Philippines.” (Sec. 14 (3). The purpose of this
requirement is to fix the residence of a corporation in a definite place,
instead of allowing it to be ambulatory. (Davao Light and Power
Company, Inc. vs. CA, G.R. No. 111685, August 20, 2001; Young Auto
Supply Co. vs. CA. G.R. 104175, June 25, 1993, 42 SCAD 673).

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May an action be filed against a corporation in places where it
maintains its branches? Explain.
No. An action cannot be filed against a corporation in any place
where the corporation maintains its branches offices. To allow an
action to be instituted in any place where the corporation has branch
offices, would create confusion and work untold inconvenience to said
entity. By the same token, a corporation cannot be allowed to file
personal actions in a place other than its principal place of business
unless such a place is also the residence of a co-plaintiff or a defendant.
When should venue be raised in an action? Why?
It is well-settled that the question on venue must not be belatedly
raised, otherwise, it is deemed waived. Improper venue should be
objected to as follows:
The foregoing answers have been modified by Section 5, Rule 6 of the
2019 Rules of Civil Procedure.
(a) In a motion to dismiss filed within the time but before the filing of
the answer (Sec. 1, rule 16); or
(c)In the answer as an affirmative defense over which, in the
discretion of the court, a preliminary hearing may be held as if a
motion to dismiss had been filed. (Sec. 6, Rule 16). Otherwise, it is
deemed waived. (Khe Hong Cheng vs. CA, G.R. No. 144169, March
28, 2001). Note: Under the present rule, Section 12, Rule 15,
motion to hear affirmative defences is a prohibited motion.

Under the present Rules, improper venue is no longer allowed as

a ground for a motion to dismiss. The least that the defendant could do
to question that venue is improperly laid is by incorporating the same in
the answer by way of affirmative defense.

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

Example:

Maria, complainant, is a resident of Barangay San Isidro, Jaro,

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

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

Example:

Rodrigo, a resident of Barangay Tabuc Suba, Jaro, Iloilo City, is the

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

(d) Those arising at the work place where the contending

parties are employed or at the institution where such parties
are enrolled for study shall be brought in the barangay where
such workplace or institution is located.

Example:
Gloria, complainant, is residing at Brgy. Baluarte, Molo, Iloilo City,
while respondent, Corazon, is a resident of Barangay. Bo. Obrero,
Lapaz, Iloilo City, but they both work as teachers at CPU situated at
Barangay San Isidro, Jaro, Iloilo City. The dispute between them should
be first resolved before the Lupon where the school or workplace is
located, and in this it is at Barangay San Isidro, Jaro, Iloilo City.
JURISDICTION AND VENUE
Jurisdiction defined
Jurisdiction is the power and authority of the court to hear, try
and decide a case. It has also been referred to as the power or capacity

103
given by the law to a court or tribunal to entertain, hear, and determine
certain controversies.
Jurisdiction and venue distinguished
1. Jurisdiction connotes the power to decide a case on the merits
while venue connotes locality, the place where the suit should be
heard;

2. Jurisdiction is substantive because it is conferred by law while

venue is procedural rather than substantive;

3. Jurisdiction cannot be waived, enlarged or diminished by

stipulation while venue may be waived by the parties and may be
stipulated upon;

4. Jurisdiction establishes a relationship between the court and the

subject matter of the action while venue establishes a relationship
between the plaintiff and the defendant.

5. The court may motu proprio dismiss a case for lack of jurisdiction.
The court cannot motu proprio dismiss a case on the ground of
improper venue.

Duty of a court to determine its jurisdiction

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

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

3. Even if the parties do not challenge the jurisdiction of a court or

tribunal, this does not prevent the court from addressing the issue
especially where the lack of jurisdiction is apparent on the face of
the complaint or petition.

Effect of lack of jurisdiction

The general rule is that proceedings conducted or decisions made
by a court are legally void where there is an absence of jurisdiction over
the subject matter.
A decision rendered by a court devoid of jurisdiction may be the
subject of a collateral attack, if that jurisdictional defect appears on the
face of the record. And where the lack of jurisdiction over the subject
matter appears on the face of the record, an appellate court may, on its
own initiative, dismiss the action.
Aspect of Jurisdiction
In discussing the concept of jurisdiction, several aspects of
jurisdiction need to be considered, namely:
a. Jurisdiction over the subject matter;
b. Jurisdiction over the parties;
c. Jurisdiction over the issues of the case; and
d. Jurisdiction over the res or thing involved in the litigation.

What are the classifications of jurisdiction?

105
 a. General
b. Special or limited
c. Original
d. Exclusive
e. Exclusive Original
f. Appellate
g. Concurrent
h. Delegated; and
i. Territorial

What are the courts of special jurisdiction?

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

What are the courts which has original jurisdiction?

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

JURISDICTON OVER THE SUBJECT MATTER

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Meaning of jurisdiction over the subject matter:
Jurisdiction over the subject matter is referred to as the power of
a particular court to hear the type of case that is then before it. The
term also refers to the jurisdiction of the court over the class of cases to
which a particular case belongs.
It is the power or authority to hear and determine cases of the
general class to which the proceeding in question belongs. Following
this definition ‘real action’ ‘personal action’ or action “incapable of
pecuniary estimation” are to be considered as subject matter.
Effect of lack of jurisdiction over the subject matter
Jurisdiction over the subject matter has been held essential,
fundamental, necessary, an indispensable and an absolute
requirement, an elementary prerequisite to the exercise of judicial
power and the most critical aspect of the court’s authority to act, so
that a court must have subject matter jurisdiction in order to take
action in the proceeding before it. Where judicial tribunals have no
jurisdiction of the subject matter, the proceedings are void.
Error of jurisdiction versus error of judgment (Bar 1989)
1. An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of jurisdiction. Errors of
jurisdiction occur when the court exercises a jurisdiction not
conferred by law. It may also occur when the court or tribunal
although with jurisdiction, acts in excess of its jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction.

2. In the simplest terms, an error of judgment presupposes that the

court is vested with jurisdiction over the subject matter of the
action but in the process of exercising that jurisdiction it

107
 committed mistakes in the appreciation of the facts and the
evidence leading to an erroneous judgment.
3. It is settled rule that errors of judgment are correctible by appeal
while errors of jurisdiction are correctible only by the
extraordinary writ of certiorari.

Lack of jurisdiction and excess of jurisdiction

There is lack of jurisdiction when the court or tribunal is not
vested by law with authority or power to take cognizance of a case. On
the other hand, excess of jurisdiction presupposes the existence of an
authority for the court to assume jurisdiction over a case but in the
process of the exercise of that authority, it acts beyond the power
conferred upon it.
HOW JURISDICTION OVER THE SUBJECT MATTER IS CONFERRED
1. Jurisdiction over the subject matter is conferred by law which
may be either the Constitution or a statute. (BP 129 and RA
7691 and RA no. 10951 – it has adjusted the amount involved,
value of the property or damage on which the penalty is based
and the fine under the Revised Penal Code by multiplying them
by 200).

2. It is the law that confers jurisdiction and not the rules.

Jurisdiction over the subject matter is a matter of substantive
law because it is conferred by law.

3. This law that confers jurisdiction refers to substantive law, not

procedural law. It likewise does not refer to an administrative
order or circular

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

The nature of an action, as well as which court or body has

jurisdiction over it, is determined based on the allegations contained in
the complaint of the plaintiff, irrespective of whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted
therein.

The cause of action in a complaint is not what the designation of

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

The rule also applies in the determination of the jurisdiction of a

quasi-judicial office or a governmental agency.

109
 Jurisdiction over the subject matter is not affected by the pleas or
theories set up by the defendant in an answer or a motion to dismiss.

The settled rule is that jurisdiction is based on the allegations in

the initiatory pleading and the defenses in the answer are deemed
irrelevant and immaterial in its determination.

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

Defenses in the Answer do not determine jurisdiction

The jurisdiction of a court, as well as the concomitant nature of
the action, is determined by the averments in the complaint and not by
the defenses contained in the answer.
Well-settled is the principle that the courts shall not be divested
of jurisdiction over a case merely by what is raised in the answer. What
determines jurisdiction over it are the allegations set up by the plaintiff.
In a case, the defendant raised the issue of tenancy. The Supreme
Court ruled that raising the issue of tenancy did not automatically
divest the court of jurisdiction. The court had to continue exercising
authority to hear the evidence for the purpose of determining whether
or not it had jurisdiction over the case. This is because once jurisdiction
is vested, the same is retained up to the end of the litigation. If during
the hearing it is shown that tenancy is the real issue, then the court

110
should dismiss the case for lack of jurisdiction (Bernarte v. CA, 263 SCRA
323).
Amount proven in the trial does not determine jurisdiction
Jurisdiction does not depend on the amount ultimately
substantiated in the course of the trial or proceedings. Where the
allegations of the complaint show that the RTC has jurisdiction, the
mere fact that the court rendered judgment involving a lesser sum than
that alleged, did not divest the court of jurisdiction.
On the other hand, if a complaint is filed involving an amount
within the jurisdiction of a lower court, but the trial disclose that the
plaintiff is entitled to an amount which if claimed in an original action is
within the exclusive jurisdiction of a superior court, the lower court, it is
opined, should refrain from rendering judgment for an amount beyond
its jurisdiction.
Doctrine of primary jurisdiction (primary administrative jurisdiction)
Under the doctrine of primary jurisdiction, courts cannot and will
not resolve a controversy involving a question within the jurisdiction of
an administrative tribunal, especially when the question demands
sound exercise of administrative discretion requiring special
knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact.
Pursuant to this doctrine, cases within the jurisdiction of
administrative bodies like labor case, agrarian cases, election cases SSS
cases shall be referred first to these governmental agencies by way of
exhaustion of administrative remedies.
Doctrine of adherence of jurisdiction (continuity of jurisdiction)

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 The doctrine means that once jurisdiction has attached, it cannot
be ousted by subsequent happenings or events, although of a character
which would have prevented jurisdiction from attaching in the first
instance. The court, once jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case.
Even the finality of the judgment does not totally deprive the
court of jurisdiction over the case. What the court loses is the power to
amend, modify, or alter the judgment. Even after the judgment has
become final, the court retains jurisdiction to enforce and execute it.
Doctrine of Ancillary Jurisdiction
The inherent or implied powers of courts sometimes referred to
as “ancillary jurisdiction” involve the power to determine issues
incidental to the exercise of its primary jurisdiction. Under its ancillary
jurisdiction, a court may determine all questions relative to the matters
brought before it, regulate the manner in which a trial shall be
conducted, determine the hours at which the witnesses and lawyers
may be heard, direct the disposition of money deposited in court in the
course of the proceedings, appoint a receiver, and grant an injunction,
attachment or garnishment.
Example:
Under last par. Sec. 9, Rule 41, prior to the transmittal of the
original records or the record on appeal, the court may issue orders for
the protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution pending appeal in
accordance with Section 2 of Rule 39, and allow withdrawal of the
appeal. (See also Rule 42, par (a), Sec 8)
Law which governs jurisdiction

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 Jurisdiction being a matter of substantive law, the established
general rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the court
(Baritua vs. Mercader, 350 SCRA 86)
Objections to jurisdiction over the subject matter
The court may on its own initiative object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly recognized right to
determine its own jurisdiction in any proceeding.

Thus, the prevailing rule is that jurisdiction over the subject

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

When the court dismisses the complaint for lack of jurisdiction

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

Omnibus Motion Rule

Under the omnibus motion rule, a motion attacking a pleading,
order, judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed waived
(Sec. 8, (now Sec. 9) Rule 15, Rules of Court). A motion to dismiss which
seeks the dismissal of a claim is undoubtedly an omnibus motion and is
thus, covered by the rule enunciated in Sec. 8 (now Sec. 9) of Rule 15.

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 Thus, there are defenses mentioned in Sec. 1 of Rule 9, not
considered waived even if not raised in a motion to dismiss like lack of
jurisdiction over the subject matter. Hence, even if a motion to dismiss
was filed and the issue of jurisdiction was not raised therein, as party
may, when he files an answer, still raise the lack of jurisdiction as an
affirmative defense because this defense is not barred under the
omnibus motion rule.
Effect of estoppels on objections to jurisdiction
While it is true that jurisdiction over the subject matter may be
raised at any stage of the proceedings since it is conferred by law, it is
nevertheless settled that a party may be barred from raising it on the
ground of estoppel (La’o v. Republic, 479 SCRA 439).

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

The doctrine of estoppels by laches in relation to objections to

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

The rule also applies to administrative proceedings. The active

participation of an individual before the administrative proceedings and
the belated challenge to the jurisdiction of the said body bars him from
assailing such acts under the principle of estoppels (Office of the
Ombudsman vs. Delijero, Jr., 634 SCRA 135).
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 Tijam ruling, an exception rather than the rule. Where the factual
settings attendant in Tijam vs. Sibonghanoy are not present, the
application of estoppels by laches would not be justified.

JURISDICTION OVER THE PARTIES

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

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had sold to X. The summons was served on Z, the secretary of the chief
of the personnel of Y corporation. Y corporation did not answer the
complaint within the reglementary period and upon motion of X, with
due notice to Y, Y was declared in default. After X presented his
evidence ex parte, judgment by default was rendered against Y
corporation. As counsel for Y corporation, what action will you take and
why?
Suggested answer
I would appeal from the judgment or file a petition for certiorari
and pray for the setting aside of the judgment, raising the argument
that the trial court did not acquire jurisdiction over the defendant, Y
corporation because of an improper service of summons. When the
defendant is a corporation organized under the laws of the Philippines
with a juridical personality, service is to be made on the president,
managing partner, general manager, corporate secretary, treasurer, or
in house counsel. The Court declared that a strict compliance with the
mode of service is required to confer jurisdiction over a corporate
defendant. (Please take note of the provisions of Sec. 12, Rule 14)
Jurisdiction over non-resident defendants
When the defendant is a non-resident and, remaining beyond the
personal service of the court, refuses to come in voluntarily, the court
never acquires jurisdiction over the person at all (Banco Espanol-
Filipino vs. Palanca, 73 Phil. 921)
This rule applies to defendants who are non-residents and are at
the same time not found in the Philippines. When the defendant is a
non-resident, personal service of summons within the state is essential
to the acquisition of jurisdiction over the person. This cannot be done,
however, if the defendant is not physically present in the country, and

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thus, the court cannot acquire jurisdiction over his person and
therefore, cannot validly try and decide the case against him (Banco Do
Brasil vs. Court of Appeals, 333 SCRA 545)
Please not that in this case, the Rules provides that “service may,
by leave of court, be effected out of the Philippines by personal service
as under Section 6; or as provided for in international conventions to
which the Philippines is a party, or by publication in a newspaper of
general circulation in such places and for such time as the court may
order…” (Section 17, Rule 14, 2019 Rules of Civil Procedure.)
Voluntary appearance of the defendant
The court may acquire jurisdiction over the person of the
defendant without service of summons or despite a defective service of
summons.
Jurisdiction is acquired when the defendant voluntarily appears in
the action. “The defendant’s voluntary appearance in the action shall
be equivalent to service of summons.” (Sec. 20, Rule 14, Rules of Court)
To constitute voluntary appearance, it must be the kind that
amounts to a voluntary submission to the jurisdiction of the court.
Submission to the court’s jurisdiction takes the form of an appearance
that seeks affirmative relief except when the relief sought is for the
purpose of objecting to the jurisdiction of the court over the person of
the defendant.
Examples:
1. When the defendant files the corresponding pleading thereon;
2. When the defendant files a motion for reconsideration of the
judgment by default;
3. When the defendant files a petition to set aside the judgment
of default;

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 4. When the parties jointly submit a compromise agreement for
approval of the court.

When jurisdiction over the person of the defendant is required.

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

Example: (a) Petition for Adoption (b) Annulment of Marriage (c)

Correction of entries in the birth certificate.
3. An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property.

Example: (a) Forfeiture proceedings

In actions in rem and quasi in rem, jurisdiction over the person of
the defendant is not a prerequisite to conferring jurisdiction on the
court, provided that the court acquires jurisdiction over the res.
Nonetheless, summons must be served upon the defendant in order to
satisfy the requirements of due process. For this purpose, service may
be made by publication as such mode of service is allowed in actions in
rem and quasi in rem.
Objections to jurisdiction over the person of the defendant

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 An objection to the jurisdiction over the person of the defendant
may be raised as a ground for a motion to dismiss. If no motion to
dismiss has been filed, the objection may be pleaded as an affirmative
defense in the answer. (BAR 1990).

If the objection is not raised either in a motion to dismiss or in the

answer, the objection to the jurisdiction over the person of the
defendant is deemed waived by virtue of the provisions of Sec. 1, Rule 9
of the Rules of Court.

Also worthy to remember is the rule that if a motion to dismiss

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

The omnibus motion rule, in relation to Sec. 1 of Rule 9,

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

These defenses are:

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

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 The defense of lack of jurisdiction over the person of the
defendant is not one of those defenses which are not deemed waived
under Sec. 1 of Rule 9. Such defense must be invoked when a motion to
dismiss is filed to prevent a waiver of the defense.
Effect of pleading additional defenses aside from lack of jurisdiction
over the person of the defendant.
In La Naval Drug Corporation v. Court of Appeals (236 SCRA 78)
held that if a plaintiff may assert two or more causes of actions, a
defendant should also be allowed under the Rules of Court to put up his
own defenses alternatively or hypothetically.
As the rule now stands, the rule allows the raising of defenses in
addition to lack of jurisdiction over the person of the defendant
without creating an inference of a voluntary submission to the
jurisdiction of the court (Sec. 20, Rule 14, Rules of Court). Take note
that under the new rules, Rule 14, Section 23: “Voluntary appearance. –
The defendant’s voluntary appearance in the action shall be equivalent
to service of summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the
defendant SHALL BE DEEMED a voluntary appearance.”
Effect of an ex parte grant of preliminary attachment before service of
summons upon defendant
Preliminary attachment may be granted ex parte even before the
defendant is served with summons. The writ may be properly applied
for and granted even before the defendant is summoned or is heard
from. However, a levy on the property pursuant to the writ thus issued
may not be validly effected unless preceded, or contemporaneously
accompanied by service on the defendant of summons, a copy of the
complaint, and the application for attachment, the order of attachment
and the plaintiff’s attachment bond.

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

HOW IS JURISDICTION OVER THE SUBJECT MATTER DETERMINED?

Jurisdiction over the subject matter is determined upon the
allegations made in the complaint, irrespective of whether the plaintiff
is entitled or not, to recover upon the claim asserted therein, a matter
resolved only after and as a result of the trial. Neither can the
jurisdiction of the court be made to depend upon the defenses made by
the defendant in his answer or motion to dismiss. If such were the rule,
the question of jurisdiction would depend almost entirely upon the
defendant. (Perez vs. Cruz, G.R. No. 142503, June 30, 2003.)
MAY JURISDICTION OF THE COURT BE RAISED OR QUESTIONED AT ANY
TIME? IS THE RULE ABSOLUTE? EXPLAIN AND CITE EXAMPLES.
Jurisdiction can be raised even for the first time on appeal. But
there are instances where it cannot be raised anymore due to the
principle of estoppel to question jurisdiction. (Tijam vs. Sibonghanoy,
23 SCRA 3)
One cannot question the jurisdiction which he invoked, not
because of the reason that the decision is valid and conclusive as an

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adjudication, but because it cannot be tolerated by reason of public
policy. (Filipinas Shell Petroleum Corp. vs. Dumlao, February 7, 1992),
that there must be an end to every litigation.
In Tajonera vs. Lamaroza, L-48907 and 49035, January 19, 1982,
the Supreme Court said that a party cannot invoke the jurisdiction of
the court to secure affirmative relief against his opponents and after
failing to obtain such relief, repudiate or question the same. (Racaza vs.
Gozum, 490 SCRA 302.)
A complaint for sum of money in the amount of P195, 000.00 was
filed with the RTC. It prayed for other damages. The defendant filed an
answer, denying that he obtained any loan from the plaintiff. After trial,
judgment was rendered holding the defendant liable. She filed a
motion for reconsideration alleging that the RTC did not have
jurisdiction over the subject matter as the amount is within the
jurisdiction of the MTC. The motion was denied ruling that under the
principle of estoppel, the RTC has jurisdiction and invoking further the
totality principle. The CA reversed the decision and the resolution on
appeal saying that the RTC had no jurisdiction over the subject matter,
and hence, the jurisdiction of the court may be assailed at anytime. Is
CA’s ruling correct? Why?
NO. While it is true that jurisdiction may be raised at anytime, this
rule presupposes that estoppel has not supervened. (Sesbrano vs. CA,
310 Phil. 671). In the instant case, respondent actively participated in all
stages of the proceedings before the trial court and invoked its
authority by asking for an affirmative relief. Clearly, defendant is
estopped from challenging the trial court’s jurisdiction, especially when
an adverse judgment has been rendered. (Soliven vs. Fastforms Phils.
Inc. G.R. No. 139031, October 18, 2004.)

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STATE THE LIMITATION OF THE PRINCIPLE OF ESTOPPEL TO QUESTION
JURISDICTION.
The operation of the principle of estoppel on the question of
jurisdiction seemingly depends upon whether the lower court actually
had jurisdiction. If it had no jurisdiction, but the case was tried and
decided upon the theory that it had jurisdiction, the parties are not
barred on appeal from assailing such jurisdiction, for the same must
exist as a matter of law, and may not be conferred by consent of the
parties or by estoppel. (Aragon vs. CA, 81 SCAD, G.R. No. 12433, March
26, 1997.)
EXPLAIN HOW A COURT MAY ACQUIRE JURISDICTION OVER A CASE.
The courts acquire jurisdiction over the subject matter when the
cases are filed. Failure to pay the correct docket fees used to be fatal
when the court did not acquire jurisdiction. (Manchester Development
Corp. vs. CA, 149 SCRA 56.) This rule has however been relaxed when
the SC ruled that even if the correct filing fees were not paid, plaintiffs
were given time to pay the docket fees within the prescriptive period.
(Sun Insurance vs. Asuncion, 170 SCRA 275.)
WHAT IS MEANT BY THE PRESCRIPTIVE PERIOD REFERRED TO IN THE
JURISDICTION?
It means the period within which a specified action must be filed.
(CB vs. CA, G.R. No. 88353; Encarnacion vs. Producers Bank, G.R. No.
92943, May 8, 1992.)
WHEN IS THERE A NEED TO PAY DOCKET FEE IF THERE IS A
COUNTERCLAIM?
There is no need to pay docket fee for compulsory counterclaim
(UST vs. Suria, 294 SCRA 382), however, if there is a permissive

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counterclaim, a party is bound to pay the prescribed docket fees.
(Suson vs. CA, 278 SCRA 284). The reason is that, it is an initiatory
pleading where the rule requires the payment of docket fees.
“X” FILED A COMPLAINT AGAINST “Y” WHO FILED A COUNTERCLAIM
BUT DID NOT PAY THE DOCKET FEE ON TIME. IT WAS CONTENDED BY
“X” THAT THE BELATED FILING OF THE DOCKET FEE DID NOT HAVE THE
EFFECT OF VESTING THE TRIAL COURT WITH JURISDICTION OVER THE
COUNTERCLAIM. RULE ON “X”’s CONTENTION.
The contention is not correct. While the filing of the initiatory
pleading without payment of the correct docket fee may not normally
vest in the Court jurisdiction over the case, yet the Court may allow
payment of the fee within a reasonable time but in no case beyond the
applicable prescriptive period. The rule equally applies to permissive
counterclaim, third-party claims, and similar pleadings which shall not
be considered filed until and unless the filing fees prescribed therefore
is paid. (Metals Engineering Resources Corp. vs. CA, G.R. No. 95631,
October 28, 1991).
SUPPOSE A DEFENDANT IN A MUNICIPAL COURT IN AN EJCTMENT SUIT
INTERPOSES THE DEFENSE OF OWNERSHIP, WILL THE MTC STILL HAVE
JURISDICTION OVER THE SUBJECT MATTER? WHY?
YES. The mere fact that the defendant in an ejectment suit
interposes the right of preemption or ownership does not deprive the
MTC of its exclusive jurisdiction. (Heirs of Jacobo Balres vs. CA, 281
SCRA 798.)
Inferior courts may not be divested of jurisdiction over ejectment
cases simply because the action cannot be dependent on the defense
of the defendant. The only issue in forcible entry and detainer cases is
possession de facto (Manuel vs. CA, July 25, 1991.)

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 If there is a defense of ownership, the court can make findings or
decide on the issue of ownership only to determine the degree of
possession. It is not res judicata with respect to the issue of ownership
in another tribunal as it is only provisional.
MAY THE MUNICIPAL TRIAL COURT TRYING AN EJECTMENT SUIT BE
RESTRAINED BY THE RTC FROM TRYING THE CASE JUST BECAUSE OF
THE PENDENCY OF AN ANNULMENT CASE? WHY?
NO. The filing of an action for reconveyance of title over the same
property or for the annulment of the deed of sale over the land does
not divest the MTC of its jurisdiction to try the forcible entry or
unlawful detainer case before it. (De la Cruz vs. CA, 133 SCRA 520.) this
is because, while there may be identity of parties and subject matter in
the forcible entry case and the suit for annulment of title and/or
reconveyance, the rights asserted and the relief prayed for are not the
same. (Drilon vs. Gaurana, 149 SCRA 342). The respondents in
ejectment proceedings cannot defeat the summary nature of the action
against them by simply filing an action questioning the ownership of
the person who is trying to eject them from the premises. (Palomar vs.
Sison, G.R. No. 82761, June 29, 1989.)
JURISDICTION OVER THE ISSUE
Meaning of jurisdiction over the issue.
Jurisdiction over the issue is the power of the court to try and
decide issues raised in the pleadings of the parties.

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

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

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

Jurisdiction over the issues may also be determined and conferred

by stipulation of the parties as when in the pre-trial conference, the
parties enter into stipulations of facts and documents or enter into an
agreement simplifying the issues of the case.

Jurisdiction over the issues may also be conferred by waiver or

failure to object to the presentation of evidence on a matter not raised
in the pleadings.

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

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

Jurisdiction over the res refers to the court’s jurisdiction over the
thing or the property which is the subject of the action. This type of
jurisdiction is necessary when the action is an action in rem or quasi in
rem. When the action is one in personam, jurisdiction over the res is

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not sufficient to authorize the court to render a judgment against the
defendant.

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

A land registration cases is a proceeding in rem, and jurisdiction

over the res in this case cannot be acquired unless there is a
constructive seizure of the land through publication and service of
notice.
JURISDICTION OF THE SUPREME COURT
The Supreme Court is not a trier of facts
There are important principles worthy of note in relation to the
jurisdiction of the Supreme Court.
1. The Supreme Court is not a trier of facts which means that passing
upon a factual issue is not within the province of the Supreme
Court.

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

Exceptions:
1. When the findings are grounded entirely on speculation, surmises
or conjectures;

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

Appeal to the Supreme Court

Appeal to the Supreme Court may be taken only by a petition for

review on certiorari, under Rule 45, except in criminal cases where the
penalty imposed is death, reclusion perpetua, or life imprisonment.

The appeal is made by filing with the Supreme Court a verified

petition for review on certiorari and shall raise only questions of law.

JURISDICTION OF THE COURT OF APPEALS

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 JURISDICTION OF THE COURT OF TAX APPEALS
JURISDICTION OF THE MUNICIPAL TRIAL COURTS
1. Personal property, estate or amount of the demand.

(a)Does not exceed P300, 000 outside Metro Manila

(b) Not more than P400, 000 within Metro Manila

Note: If the value of the property exceeds the said amounts, the
Regional Trial Courts shall have jurisdiction.
The jurisdictional amount does not include the following:
1. Interest
2. Damages of whatever kind;
3. Attorney’s fees;
4. Litigation expenses; and
5. costs

Note: Although excluded in determining the jurisdiction of the court,

the above items however, shall be included in the determination of the
filing fees.
The Totality Rules
Under the totality rule, where there are several claims or causes
of actions between the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of the claims
in all the causes of action, irrespective of whether the causes of action
arose out of the same or different transactions.
The totality rule presupposes that the various claims of the same
or different parties are allowed to be embodied in the same complaint

130
or that the different causes of action which are joined accrue in favor of
the same plaintiff/s and against the same defendant/s and that no
misjoinder of parties is involved.
Example:
Defendant owes Plaintiff the following: P250, 000 representing
the balance on the purchase price of a car; P200, 000 based on a simple
loan; P270, 000 also based on another loan. All debts are due and a
demand to pay went unheeded, If an action is filed and the causes of
action are joined, the basis of jurisdiction would be the total amount
due. The RTC, in this case, has jurisdiction. If each is made the subject
of a separate complaint, the MTC, by reason of the amount, has
jurisdiction.
BAR 2010
On August 13, 2008, A, as shipper and consignee, loaded on the
M/V Atlantis in Legaspi City 100, 000 pieces of century eggs. The
shipment arrived in Manila totally damaged on August 14, 2008. A filed
before the Metropolitan Trial Court of Manila a complaint against B
Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of
damages amounting to P167, 899. He attached to the complaint the Bill
of Lading.
A. B Lines filed a Motion to Dismiss upon the ground that the
Regional Trial court has exclusive original jurisdiction over “all
actions in admiralty and maritime” claims. In his Reply, A
contended that while the action is indeed “admiralty and
maritime” in nature, it is the amount of the claim, not the
nature of the action, that governs jurisdiction. Pass on the
Motion to Dismiss.

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Suggested answer

The Motion to Dismiss is without merit and therefore should be

denied. Courts of the first level have jurisdiction over civil action where
the demand is for sum of money not exceeding P300, 000. 00 or in
Metro Manila, P400, 000. 00, exclusive of interest, damages, attorney”s
fees, litigation expenses and costs; this jurisdiction includes admiralty
and maritime cases. And where the main cause of action is the claim for
damages, the amount thereof shall be considered in determining the
jurisdiction of the court. (Adm. Circular No. 09-94, June 14, 1994).
2. Probate proceedings

(a)Where the gross value of the estate does not exceed P300, 000.
00 outside Metro Manila;

(b) Where the gross value of the estate does not exceed P400,
000. 00 within Metro Manila.

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

1. The MTC also exercises delegated jurisdiction in cadastral and

land registration cases covering lots where there is no controversy
or opposition, or contested lots the value of which does not
exceed P100, 000. 00, as may be delegated by the Supreme Court.

2. The value of the lot shall be ascertained by (a) the affidavit of the
claimant or by (b) agreement of the respective claimants if there

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 are more than one, or (c) from the corresponding tax declaration
of the real property.

3. The decision of these courts shall be appealable in the same

manner as the decisions of the Regional Trial Courts. Hence, the
MTC acting under its delegated jurisdiction may be deemed to be
acting as a Regional Trial Court. The decision of the MTC in
cadastral and land registration cases therefore, shall be
appealable to the Court of Appeals following the procedure in
Rule 41 (BAR 2009)

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

2. The special jurisdiction includes the authority to hear and decide

applications for bail in criminal cases in the province or city where
the absent Regional Trial Judges sit.

SUMMARY PROCEDURE; SMALL CLAIMS CASES

The MTC has exclusive jurisdiction over cases falling under the
1991 Rules on Summary Procedure and the Rules of Procedure for
Small Claims Cases (Sec. 2, A.M. No. 08-8-7-SC)
REAL ACTIONS OTHER THAN FORCIBLE ENTRY AND UNLAWFUL
DETAINER (BAR 2010)
(a)The MTC has exclusive original jurisdiction over civil actions
involving title to or possession of real property, or any interest

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 therein, where the assessed value of the property or interest
therein does not exceed:

1. Does not exceed P20, 000. 00 outside Metro Manila.

2. Does not exceed P50, 000. 00 within Metro Manila.

(b) The amount mentioned are exclusive of interest, damages of

whatever kind, attorney’s fees, litigation expenses, and costs.

© In cases of land not declared for taxation purposes, the value of

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

(f) The rule that accion publiciana lies with the RTC regardless of
the value of the property, no longer holds true. As things now
stand under RA 7691, a distinction must be made between
those properties the assessed value of which does not exceed
P20, 000. 00, if outside Metro Manila and P50, 000. 00, if
within Metro Manila (in which case an accion publiciana should
be filed in the MTC). Where the assessed value is greater than

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 the amounts mentioned, the RTC has jurisdiction. (Quinagoran
v. Court of Appeals, 531 SCRA 104, BAR 2010).

Meaning of Actions Involving Title to Real Property:

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

The RTC is a court of general jurisdiction

Unlike the MTC, which is a court of limited jurisdiction because it
can only take cognizance of cases expressly provided by law, the
Regional Trial Court is a court of general jurisdiction because all cases,
the jurisdiction of which is not specifically provided by law to be within
the jurisdiction of the Regional Trial Court.
Action incapable of pecuniary estimation (BAR 1997; 2003; 2009)
A simpler restatement of jurisprudence discloses that to
determine if an action is one incapable of pecuniary estimation, it is
necessary to ascertain the nature of the principal remedy sought. If it is
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primarily for the recovery of a sum of money, it is capable of pecuniary
estimation. Jurisdiction over the action would then depend upon the
amount of the claim. Where the basic issue is something other than the
right to recover a sum of money, or the money claim is merely
incidental to the principal relief, the action is incapable of pecuniary
estimation (Russel v. Vestil, 304 SCRA 739)
Examples:
1. Action for reformation of instrument;
2. Rescission of a contract;
3. Action for specific performance;
4. Complaint for Expropriation.

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

2. The decisions of the RTC in the exercise of its appellate

jurisdiction shall be appealable by petition for review to the Court
of Appeals

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

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            (a) An action filed on November 13, 2017 to recover the
possession of an apartment unit being occupied by the defendant by
mere tolerance of the plaintiff, after the former ignored the last
demand to vacate that was duly served upon and received by him on
July 6, 2016.
 
            (b) A complaint in which the principal relief sought is the
enforcement of a seller's contractual right to repurchase a lot with an
assessed value of P15, 000.00.
 
SUGGESTED ANSWER:

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

(b)    Exclusive original jurisdiction is vested in the MTC. The Supreme

Court has held that where the ultimate relief sought by an action is the
assertion of title to real property, the action is a real one and not one
incapable of pecuniary estimation. [Brgy. Piapi v. Talip, 7 Sep 2005].   
Here the ultimate relief sought by the complaint is the assertion of title
since the seller seeks to exercise his right to repurchase.  Hence the
action is a real one and jurisdiction is vested in the MTC since the
assessed value does not exceed P20,000.
 
Alternative Answer:
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(b)   Exclusive original jurisdiction is vested in the Regional Trial Court. 
The Supreme Court has held that an action to enforce the right of
redemption is one which is incapable of pecuniary estimation and thus
within the exclusive original jurisdiction of the RTC pursuant to B.P. Blg.
129.  [Heirs of Bautista v. Lindo, 10 March 2014]

BAR 2017
State at least five (5) civil cases that fall under the exclusive
original jurisdiction of the Regional Trial Courts (RTCs).
 
Suggested answer
 
The following civil cases fall under the exclusive original jurisdiction  of
the RTCs:
 
1. Actions where the demand or the value of the property in
controversy exceeds P300,000, or, in Metro Manila, P400,000,
exclusive of damages, attorney’s fees, litigation expenses,
interests, and costs.
  
2. Real actions where the assessed value of the real property
involved exceeds P20,000, or in Metro Manila, P50,000.

3. Actions whose subject matter is incapable of pecuniary

estimation.

4. Probate cases where the gross value of the estate exceeds

P300,000, or in Metro Manila, P400,000.

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       5. Actions not falling within the exclusive jurisdiction of any other
court, tribunal, body, or person, exercising judicial or quasi-judicial
functions.    

JURISDICTION OF THE FAMILY COURTS

Under R.A. No. 8369, the Family Courts shall have exclusive
original jurisdiction over the following civil cases:
1. Petitions for guardianship, custody of children and habeas corpus
involving children;

2. Petition for adoption for children and the revocation thereof;

3. Complaints for annulment of marriage, declaration of nullity of
marriage and those relating to status and property relations of
husband and wife or those living together under different status
and agreements, and petitions for dissolution of conjugal
partnership of gains;

4. Petition for support and/or acknowledgement.

5. Summary judicial proceedings brought under the provisions of

Executive Order No. 209 otherwise known as the “Family Code of
the Philippines.”

6. Petitions for declaration of status of children as abandoned,

dependent or neglected children, petitions for voluntary or
involuntary commitment of children, the suspension, termination
or restoration of parental authority and other cases cognizable
under PD 603.

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 7. Petitions for the constitution of the family home.

JURISDICTION OF SHARI’A COURTS

JURISDICTION OVER CIVIL CASES SUBJECT TO SUMMARY
PROCEDURE
The civil cases subject to summary procedure are:
(a)All cases of forcible entry and unlawful detainer irrespective of
the amount of damages or unpaid rentals sought to be
recovered (BAR 1995); and

(b) All other cases where the total amount of the plaintiff’s
claim does not exceed P100, 000. 00 (outside Metro Manila), or
does not exceed P200, 000. (Metro Manila), exclusive of
interests and costs. Probate proceedings are not covered by
the rule on summary procedure even if the gross value of the
estate does not exceed P100, 000. 00 or P200, 000. 000.

JURISDICTION OVER SMALL CLAIMS CASES

The Rule governs the procedure in actions before the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts for the payment of
money where the value of the claim does not exceed P400, 000. 00
exclusive of interests and costs. (OCA Circular – No. 45-2019 dated April
1, 2019)
APPLICABILITY
1. The Rule of Procedure for Small Claims Cases applies to the
following actions:

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 (a)All actions that are purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment /reimbursement
of a sum of money; and

(b) The civil aspect of criminal actions, either filed prior to the
institution of the criminal action, or reserved upon the filing of the
criminal action in court, pursuant to Rule 111 of the Revised Rules
of Criminal Procedure.

2. The claims or demands referred to may be for any of the

following:

(a)For money owed;

(b) For damages; or
(c)For enforcement of a barangay amicable settlement or an
arbitration award involving money claims covered by this Rule
(d) While there are various sources of the claims which can be
the subject of a small claims action, the claims must be solely
for money.

BAR 2018

Danica obtained a personal loan of PhP 180,000 from Dinggoy,

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

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Municipal Trial Court (MTC) a statement of claim, together with the
required documents.

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

BAR 2017

Pedro and Juan are residents of Barangay Ifurug, Municipality of

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

Under the Rules of Procedure for Small Claims Cases, a motion to

dismiss on whatever ground is a prohibited motion. 

Here the complaint falls under the coverage of the Rules of

Procedure for Small Claims Cases since the claim for sum of money did

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not exceed P100,000.  Hence the motion to dismiss filed by Pedro is a
prohibited motion and should thus be denied.    [Note:  Threshold
amount was subsequently increased to P200,000]
 
To have a complete overview on the principle of jurisdiction, it is
also important that students of law must the extent and limit of the
“Authority” (not jurisdiction) of the Barangay Lupon over barangay
conciliation proceedings.
AUTHORITY OVER BARANGAY CONCILIATION PROCEEDINGS
Sec. 408 of the Local Government Code of 1991 (RA 7160).
Subject matter for amicable settlement; Exception therein. – The lupon
of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable
settlement of all disputes except:
(a)Where one party is the government or any subdivision or
instrumentality thereof;
(b) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;

(c)Offenses punishable by imprisonment exceeding one (1) year a

fine exceeding Five Thousand pesos (P5, 000);

(d) Offenses where there is no private offended party;

(e)Where the dispute involves real properties located in different

cities or municipalities unless the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;

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(f) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;

(g)Such other classes of disputes which the President may determine

in the interest of justice upon the recommendation of the
Secretary of Justice.

(h) Labor cases.

(i) Agrarian cases.

RULE 5
UNIFORM PROCEDURE
IN TRIAL COURTS

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Section 1. Uniform procedure. – The procedure in the Municipal Trial
Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure.
Section. 2. Meaning of terms. – The term “Municipal Trial Courts” as
used in these Rules shall include Metropolitan Trial Court, Municipal
Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit
Trial Courts.
Are the rules of procedure in the Municipal Trial Courts and
Regional Trial Courts the same? Is the rule absolute?
Yes. The procedure in the Municipal Trial Courts shall be the same
as in the Regional Trial Courts, except: (a) where a particular provision
expressly or impliedly applies only to either of said courts, or (b) in civil
cases governed by the Rules on Summary Procedure.
Can you cite some exceptions referred to in Sec. 1 of Rule 5?
(a)Yes. (1) If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional
Trial Court may affirm or reverse it, as the case may be. In case
of affirmance and the ground of dismissal is lack of jurisdiction
over the subject matter, the Regional Trial court, if it has
jurisdiction thereover, shall try the case on the merits as if the
case was originally filed with it. In case of reversal, the case
shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without

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prejudice to the admission of amended pleadings and additional
evidence in the interest of justice. (Sec. 8, Rule 40)
(2)Forcible entry and unlawful detainer cases are governed by the
Rules on Summary Procedure.

(3) The Rules on appeals apply only the Regional Trial Courts and the
Sandiganbayan. It finds no application to the Municipal Trial
Courts, Metropolitan Trial Courts and the Municipal Circuit Trial
Courts, since they have no appellate jurisdiction.
What rule governs the disposition of cases for violation of BP 22?
The Rule on Summary Procedure now governs cases in violation of
BP 22. (A.M. No. 00-11-01-SC, which took effect on April 15, 2003).
X was sued by Y before the Metropolitan Trial Court. After a
determination that it falls under the Rules on Summary Procedure,
summons was served. X filed an answer on the 20 thday from service of
summons. Can the court render judgment on the basis of the
allegations in the complaint? Why?
Yes, the court may decide the case on the basis of the allegations
of the complaint since the answer was filed out of time. (Santiago and
Soriano vs. Hon. Teofilo Guadiz, Jr., 206 SCRA 590).
An ejectment suit was filed before the MTC, Iloilo City. The
defendant moved to hold in abeyance the preliminary conference until
the case for specific performance has been terminated. The MTC
granted the motion. Appeal was made to the RTC where a Motion to
Dismiss Appeal was filed on the ground that the order was
interlocutory. The RTC denied the motion, but the CA allowed the
appeal from the interlocutory order. Was the CA’s action proper?

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 Yes, because there was a procedural void in the summary
proceedings before the MTC. Clearly, there can be no appeal from the
order being interlocutory. But neither can a petition for certiorari be
filed because the ejectment suit is governed by the Rules on Summary
Procedure and such petition is a prohibited pleading. Hence, the party
was caught in a procedural void, thus under the extraordinary
circumstances, there must be a remedy consistent with the objective of
speedy disposition of cases.
Thus, in a situation wherein a summary proceeding is suspended
indefinitely, a petition for certiorari alleging grave abuse of discretion
may be allowed. Due to the extraordinary circumstances, a petition for
certiorari would give spirit and life to the Rules on Summary Procedure.
(Azucena Go, vs. CA, 99 SCAD 850).
The reason why the CA upheld the appeal from an interlocutory
order was to fill a procedural void. In fact, the appeal could be treated
as a petition for certiorari under Rule 65, for appeal ordinarily would
entail a long process which negates an expeditious resolution.
In an action for unlawful detainer, the defendant filed an answer
with affirmative defenses. A motion to hear the affirmative defenses
was filed but it was denied. Was the denial proper? Why?
Yes. Under the law, parties are not prohibited from filing an
answer with affirmative defenses in cases falling under the summary
procedure. However, the trial courts are enjoined from conducting a
preliminary hearing on such affirmative defenses to prevent
unnecessary delay in disposing the case on its merits. It has been ruled
that under the summary procedure “xxx adjudication of cases can be
done on the basis of affidavits or other evidence. The proceeding must
be as summary as possible in order not to defeat the need to dispose
ejectment cases in as fast a time as possible. The reason is because
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cases involving possession of properties usually pose a threat to the
peace of society.” (Del Rosario vs. CA, 59 SCAD 113, 241 SCRA 519).
Furthermore, it was held that the rules are supposed to be interpreted
strictly to attain the aims of speedy and inexpensive disposition of
cases. (Bayview Hotel, Inc., vs. CA, 83 SCAD 463.)
Explain the importance of the Order issued by the court in a case
governed by the Rules on Summary Procedure setting forth the issues
of the case after the preliminary conference.
After the preliminary conference, the MTC should issue an order
clearly and distinctly setting forth the issues of the case and other
matters taken up in the conference. The order is an important part of
the summary proceeding because it is the receipt to the parties that the
ten (10) days period wherein to submit the affidavits and other
evidence. Without such order, the ten (10) day period to submit
affidavits and position papers does not commence to run. Hence, any
judgment rendered by the court without such order is violative of due
process as it denies the parties’ opportunity to submit the affidavits and
position papers. (Bayubay vs. CA, 43 SCAD 378).
An ejectment suit was filed by Andres against Barbo. The MTC
issued an order dismissing the action for lack of jurisdiction. A motion
for reconsideration was filed by the plaintiff which was granted. The
RTC held otherwise, which was sustained by the CA stating that it is a
prohibited motion. Is the ruling proper? Why?
No, because the motion for reconsideration was not covered by
the prohibition under the Rules on Summary Procedure. The motion for
reconsideration that is prohibited is one which seeks reconsideration of
the judgment rendered by the court after trial on the merits of the
case. The decision dismissing the petitioner’s ejectment case for lack of

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jurisdiction was not an adjudication on the merits. (Joven vs. CA, G.R.
No. 80739, August 20, 1992.)

RULE 6
KINDS OF PLEADINGS

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Section 1. Pleadings defined. -- Pleadings are the written statements
of the respective claims and defenses of the parties submitted to the
court for appropriate judgment.
Necessity and Purpose of Pleadings
It is necessary, in order to confer jurisdiction on a court, that the
subject matter be presented for its consideration in a mode sanctioned
by law and this is done by the filing of a complaint or other pleadings.
Unless a complaint or other pleading is filed, the judgment of a court of
record is void and subject to collateral attack even though it may be a
court which has jurisdiction over the subject matter referred to in the
judgment.
Pleadings are designed to develop and present the precise points
in dispute between the parties. Their office is to inform the court and
the parties of the facts in issue. The object of the pleadings in a more
restricted and commonly accepted sense is to notify the opposite party
of the facts which the pleader expects to prove, so that he may not be
misled in the preparation of his case.
Construction of Pleadings
In this jurisdiction, all pleadings shall be liberally construed so as
to do substantial justice.
While it is the rule that pleadings should be liberally construed, it
is also a rule that a party is strictly bound by the allegations, statements
or admission made in his pleadings and cannot be permitted to take a
contradictory position.
Section. 2. Pleadings allowed. – The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth, etc.)-party
complaint, or complaint-in-intervention.

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The defenses of a party are alleged in the answer to the pleading
asserting a claim against him.
An answer may be responded to by a reply ONLY IF THE DEFENDING
PARTY ATTACHES AN ACTIONABLE DOCUMENT TO THE ANSWERS.
(A.M. No. 19-10-20-SC – May 1, 2020)
Note: This writer most respectfully believes that the proper and correct
phrase should be “only if the defending party based his defense or
claim on an actionable document which is attached to the answer.”
The following are the pleadings allowed by the Rules of Court: (a)
complaint; (b) answer; (c) counterclaim; (d) cross-claim; (e) third
(fourth, etc.)- party complaint; (f) complaint-in-intervention; and (g)
reply (Sec. 2, Rule 6, Rules of Court), and (h) rejoinder.
Under the Revised Rules, there is no need for the plaintiff to file a
reply except if the defending party attaches an actionable document to
the answers. Even under the old rules, jurisprudence held, there was no
obligation on the part of the plaintiff to file a reply unless the
defendant, in his answer, presented an actionable document. This is
now specifically required by the new rules.
For example in a case for collection of a sum of money, if the
defendant invoked the defense of payment and attached to his answer
several receipts to show payments, and receipts are deemed
considered as actionable document, then the plaintiff is required to file
his reply otherwise, the genuiness and due execution of the receipts are
deemed admitted. In a similar way, in action for recovery of ownership
when the defendant, in his answer, invoked the defense of ownership
as evidence by a Deed of Sale, which is an actionable document, the
plaintiff is directed to file his reply, and his failure to do so would be

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tantamount to an implied admission of the genuiness and due
execution of the deed of sale.
Pleadings allowed under the Rules on Summary Procedure
When a case falls under the Rules on Summary Procedure, the
only pleadings allowed to be filed are: (a) complaint; (b) compulsory
counterclaim pleaded in the answer; (c) cross-claim pleaded in the
answer, and (d) answer thereto (Sec 3 [A] II, Rules on Summary
Procedure).
What are the kinds of pleadings under the Rules?
The kinds of pleadings under the Rules are:
1. Initiatory pleadings; and
2. Responsive pleadings.
Distinctions between initiatory pleadings and Responsive pleading:
a. Initiatory pleading is a pleading which commences an action
containing plaintiff’s cause or causes of action, while responsive
pleading is a pleading which responds to the adverse party’s
pleading;

b. Initiatory pleading needs to be verified while a responsive

pleading need not be verified as a general rule, except those
required to be verified under the rules and law;

c. Initiatory pleading should contain certification of non forum

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

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

What are the responsive pleadings under the Rules?

1. Answer to the original complaint;
2. Answer to the permissive counter-claim;
3. Answer to the cross-claim;
4. Answer to the Third Party complaint;
5. Answer to the Fourth Party complaint;
6. Answer to the complaint-in-intervention;
7. Answer to the amended pleading;
8. Answer to the supplemental pleading;
9. Reply to all answers;
10. Compulsory counter-claim;
11. Response to a Small claims cases.
Variance between Caption and Allegations in the Pleadings
1. It is not the caption of the pleading but the allegations therein
which determine the nature of the action and the court shall
grant relief warranted by the allegations and proof even if no
such relief is prayed. Thus a complaint captioned as unlawful
detainer is actually an action for forcible entry where the

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 allegations show that the possessor of the land was deprived of
the same by force, intimidation, strategy, threat or stealth.

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

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

3. Because the allegations of the pleadings and not the title of the
pleading determine the cause of action, if the petitioner filed
before the Supreme Court a petition captioned “Petition for
Certiorari” based on Rule 65 but the allegations state that the
issues raised are pure questions of law, the cause of action is
not one based on Rule 65 which raises the issues of jurisdiction,
but on Rule 45 which raises pure questions of law (De Castro
vs. Fernandez, Jr., 515 SCRA 682)

Section. 3. Complaint. – The complaint is the pleading alleging the

plaintiff’s OR CLAIMING PARTY’S cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the
complaint.
Define Complaint
The complaint is the pleading alleging the plaintiff’s 0R CLAIMING
PARTY’S cause or causes of actions.
Filing of the complaint
The filing of the complaint is the act of presenting the said
complaint to the clerk of court. For the purpose of filing, the original

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

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

“The rule is that payment in full of the docket fees within the
prescribed period is mandatory. In Manchester v. Court of Appeals, 149
SCRA 562, it was held that a court acquires jurisdiction over any case
only upon the payment of the prescribed docket fee. The strict
application of this rule was, however, relaxed two (2) years after in the
case of Sun Insurance Office, Ltd. v. Asuncion, wherein the Court
decreed that where the initiatory pleading is not accompanied by the
payment of the docket fee, the court may allow payment of the fee
within a reasonable period of time, but in no case beyond the
applicable prescriptive or reglementary period.

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 Notwithstanding the mandatory nature of the requirement of
payment of appellate docket fees, the Court also recognizes that its
strict application is qualified by the following: first, failure to pay those
fees within the reglementary period allows only discretionary, not
automatic, dismissal; second, such power should be used by the court
in conjunction with its exercise of sound discretion in accordance with
the tenets of justice and fair play, as well as with a great deal of
circumspection in consideration of all attendant circumstances.”
Payment of docket fees for cases on appeal
The Rules of Civil Procedure, as amended, which took effect on
July 1, 1997, now requires that appellate docket and other lawful fees
must be paid with the same period for taking an appeal. This is clear
from the opening statement of Sec. 4, Rule 41 of the same rule that,
“Within the period for taking an appeal, the appellant shall pay to the
clerk of court which rendered the judgment or final order appealed
from, the full amount of the appellate court docket and other lawful
fees.”

The Supreme Court has consistently held that payment of the

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

Section. 4. ANSWER. – An answer is a pleading in which a defending

party seeks forth his defenses.
Nature of an Answer

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 The answer is a pleading in which a defending party sets forth his
defense (Sec. 4, Rule 6, Rules of Court). This pleading may be an answer
to the complaint, an answer to a counterclaim or an answer to a cross-
claim. There is no answer to a reply but there could be an answer to a
third-party complaint or complaint-in-intervention. The current Rules
allow the filing of an answer to the Reply and that is by way of a
Rejoinder.
Defenses in the answer:
An answer contains the defenses of the answering party. These
defenses may either be negative or affirmative.
Section. 5. Defenses. – Defenses may either be negative or
affirmative.
(a)A negative defense is the specific denial of the material fact or
facts alleged in the pleading of the claimant essential to his OR
HER cause of causes of action.

(b) An affirmative defense is an allegation of a new matter

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

AFFIRMATIVE DEFENSES MAY ALSO INCLUDE GROUNDS FOR THE

DISMISSAL OF A COMPLAINT, SPECIFICALLY, THAT THE COURT HAS
NO JURISDICTION OVER THE SUBJECT MATTER, THAT THERE IS
ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE

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 SAME CAUSE, OR THAT THE ACTION IS BARRED BY A PRIOR
JUDGMENT.
Defenses in the Answer
An answer contains the defenses of the answering party. These
defenses may either ne NEGATIVE or AFFIRMATIVE (Sec. 5, Rule 6,
Rules of Court).

A defense is NEGATIVE when the material averments alleged in

the pleading of the claimants are specifically denied.

Under the Rules a negative defense is the specific denial of the

material fact or facts alleged in the pleading of the claimant essential to
his cause of action or defense. (Sec. 5, Rule 6). A negative defense is
stated in the form of a specific denial and the kinds of specific denial
are described in Sec. 10, Rule 18 of the Rules of Court. If the denial is
not one of those described under said provision, the denial is deemed
to be general. A general denial is considered an admission.
Under Sec. 11 of Rule 18, material averments in the complaint
(other than those as to the amount of unliquidated damages, not
specifically denied shall be deemed admitted. If the allegations are
deemed admitted, there is no more triable issue between the parties
and if the admissions appear in the answer of the defendant, the
plaintiff may file a motion for Judgment on the Pleadings under Rule 34.
Purpose of a specific denial
The purpose of requiring the defendant to make a specific denial
is to make him disclose the matters alleged in the complaint which he
succinctly intends to disprove at the trial, together with the matter
which he relied upon to support the denial.

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KINDS OF SPECIFIC DENIAL (BAR 2011)
There are three (3) types of specific denials mentioned in Sec. 10
of Rule 8 of the Rules of Court, namely:
(a)The defendant specifies each material allegation of fact the truth
of which he does not admit and, whenever practicable, sets forth
the substance of the matters upon which he relies to support his
denial. This kind of denial is an ABSOLUTE DENIAL;

(b) Another type of a specific denial is where the defendant

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

(c)One type of a specific denial is where the defendant alleges that

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

In an action to foreclose a mortgage, a denial that the defendant

is without any knowledge of his having signed a deed of mortgage
when the facts and the actionable document forming the basis of the
claim incontrovertibly show that he so executed the document denied,
is a denial in bad faith. This denial amounts to an admission. (BAR 2004;
BAR 2005).

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NEGATIVE PREGNANT
A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
In a pleading, it is a negative implying also an affirmative and
which although is stated in a negative form really admits the allegations
to which it relates.
Example:
A complaint alleges: “Plaintiff extended a loan to Defendant in the
amount of Php500, 000. 00 on July 6, 2016 in Iloilo City.” Defendant in
his answer alleges: “Defendant specifically denies that Plaintiff
extended a loan to Defendant in the amount of Php500. 000. 00 on July
6, 2016 in Iloilo City.” The answer is a mere repetition of the allegations
made in the complaint. The answer is vague as to what it really denies.
Is it the existence of a loan that is denied? Is it the amount? The date?
The place? The effect of this kind of denial is an admission.
WHEN A SPECIFIC DENIAL MUST BE COUPLED WITH AN OATH (BAR
2010)
As a rule, a negative defense is sufficient if made in the form of a
specific denial of the material allegations alleged in the pleading of the
claimant. There are however, instances when a mere specific denial is
not sufficient for a negative defense. In certain cases, the specific denial
must be made under oath and in these instances a mere specific denial
is not enough to produce the kind of denial under the Rules. These are:
1. A denial of an actionable document (Sec. 8, Rule 8); and
2. A denial of allegations of usury in a complaint to recover usurious
interest (Sec. 11, Rule 8)

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

AFFIRMATIVE DEFENSES
A defense is affirmative when it alleges new matters which, while
hypothetically admitting the allegations of the pleading of the claimant,
would nevertheless, prevent or bar recovery by the claiming party. (Sec.
5, Rule 6)

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

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

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 An affirmative defense includes FRAUD, STATUTE OF
LIMITATIONS, RELEASE, PAYMENT, ILLEGALITY, STATUTE OF FRAUDS,
ESTOPPEL, FORMER RECOVERY, DISCHARGE IN BANKRUPTCY, and other
matter by way of confession and avoidance.

Sample of Affirmative Defense:

1. The Complaint fails to state a claim upon which relief can be

granted;
2. The plaintiff is barred from the relief sought in the Complaint
by the doctrine of waiver or estoppels;
3. The plaintiff is barred from the relief sought in the Complaint as
a result of its unclean hands.

In the resolution of these affirmative defences, Section 5 (b) of

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

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 Take note that the above-mentioned affirmative defences shall be
resolve motu proprio by the court within thirty (30) calendar days from
the filing of the answer. (Section 12, par. d, Rule 8, Rules of Court)

An answer may allege affirmative defenses which may strike down

the plaintiff’s cause of action. When the answer asserts affirmative
defenses, there is proper joinder of issues which must be ventilated in a
full blown trial on the merits and cannot be resolved by mere judgment
on the pleadings.

It is worth remembering that under Rule 8, Section 12 (b) “failure

to raise the affirmative defences at the earliest opportunity shall
constitute a waiver thereof.”

COUNTERCLAIM
Section. 6. Counterclaim.-- A counterclaim is any claim, which a
defending party may have against an opposing party.
Nature of a counterclaim (BAR 1999; BAR 2010)
It partakes of a complaint by the defendant against the plaintiff.
Reasons for allowing a counterclaim.
The rules on counterclaim are designed to enable the disposition
of a whole controversy of the conflicting claims of the parties at one
time and in one action, provided all parties be brought before the court
and the matter decided without prejudicing the rights of any party. The
object of a counterclaim is to prevent multiplicity of suits by allowing
the determination in one action of the entire controversy between the
parties, thus avoiding inconvenience, expense, waste of the court’s
time and injustice. It also enables the defendant to make his defense

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more complete and effectual than it would be if he stood on one
answer alone.
It is in itself a distinct and independent cause of action and when
filed, there are two simultaneous actions between the same parties.
A counterclaim is a pleading.
When the defendant files a counterclaim against the plaintiff, the
defendant becomes the plaintiff in the counterclaim while the original
plaintiff becomes the defendant. The filing of a counterclaim give rise to
two complaints, namely, the one filed by the plaintiff by way of an
original complaint and the one filed by the defendant by way of a
counterclaim.
A “Motion to Dismiss with a Counterclaim” is not an accepted way
of pleading a counterclaim. It is sanctioned neither by the Rules nor by
common usage (BAR 1992; BAR 2008)
Section. 7. Compulsory counterclaim. – A compulsory counterclaim is
one which, being cognizable by the regular courts of justice, arises out
of or in connected with the transaction or occurrence constituting the
subject matter of the opposing party’s claim and does not require for
its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature
thereof, except that in an original action before the Regional Trial
Court, the counterclaim may be considered compulsory regardless of
the amount. A COMPULSORY COUNTERCLAIM NOT RAISED IN THE
SAME ACTION IS BARRED, UNLESS OTHERWISE ALLOWED BY THESE
RULES.
Kinds of Counterclaim

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 1. Counterclaim may be either:
(a)Compulsory, or

(b) Permissive

2. A compulsory counterclaim has the following elements:

(a)It arises out of, or is necessarily connected with the transaction

or occurrence which is the subject matter of the opposing
party’s claim;
(b) It does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction; and

(c)The court has jurisdiction to entertain the claim both as to the

amount and the nature thereof.

It is explicit under the new rules that compulsory counterclaim

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

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

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

Section 10.Omitted counterclaim or cross-claim. — When a

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

How to Plead compulsory counter-claim in the answer

“Defendant reiterates and incorporates by reference each and
every allegation made in each every preceding paragraph and
subparagraph of this Answer.”
1. Plaintiff’s unfounded complaint constitutes harassment, malice
and evident bad faith and for which the defendant suffered
moral damages in the amount of P1, 000, 000. 00;
2. Plaintiff’s baseless and unfounded complaint has compelled
defendant to secure the legal services of a counsel and for
which he paid attroney’s fees in the sum of P50, 000. 00.
Example:
Globe Furniture engaged the service of JJ Trucker to deliver
furniture to the customer of Globe Furniture. For the non payment of
the trucking service, JJ Trucker sued Globe Furniture for sum of money
and damages. In Globe Furniture’s answer, they said that the furniture
was destroyed or damaged. Though that is a good defense, if Globe
Furniture wants the court to order JJ Trucker to pay for the damaged
furniture, Globe Furniture would have to file a counterclaim.
Compulsory counterclaim must be within the jurisdiction of the court
A compulsory counterclaim requires that the same be within the
jurisdiction of the court both as to its amount and nature. Hence, if a
counterclaim is interposed in the Metropolitan Trial Court, the
compulsory counterclaim cannot exceed Php400, 000. 00 even if the
counterclaim arises from the same transaction as the plaintiff’s claim.

166
 If the counterclaim exceeds the jurisdictional amounts of said
courts, the counterclaim should be considered permissive, not
compulsory. If the claims exceeds the jurisdictional amount of the said
inferior courts, the counterclaim may however, still be pleaded, not to
obtain affirmative relief but merely to weaken the plaintiff’s claim. If a
counterclaim in excess of the amount cognizable by the inferior court is
set up, the defendant cannot obtain a positive relief. If it is set up, this
is only for the defendant to prevent plaintiff from recovering (Maceda
vs. CA, 176 SCRA 440).
Thus, a counterclaim for Php500, 000. 00 in the Metropolitan Trial
Court of Manila cannot be considered a compulsory counterclaim since
the amount exceeds the court’s jurisdiction even if assuming, it is
intimately connected with the subject matter of the complaint.
The rule is different if the original action is one filed before the
Regional Trial court. Here, the counterclaim may be considered
compulsory regardless of the amount (Sec. 7, Rule 6). So if a
counterclaim for Php100, 000. 00 is interposed by the defendant in the
Regional Trial Court, the claim is still deemed a compulsory
counterclaim where the original action is filed before it even if the
amount is below its jurisdiction. This is because a Regional Trial Court is
a court of general jurisdiction.
The most common compulsory counterclaim filed by the
defendant in the absence of any other counterclaim is to claim in the
same suit his expenses in the suit for being forced to litigate in the face
of an allegedly unfounded and baseless complaint, as well as attorneys’
fees. Added to these expenses are the alleged damages he sustained as
a consequence of the unfounded complaint, like moral and actual
damages.

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BAR 2016
        
Abraham filed a complaint for damages in the amount of
P750,000.00 against Salvador in the RTC in Quezon City for the latter's
alleged breach of their contract of services. Salvador promptly filed his
answer, and included a counterclaim for P250,000.00 arising from the
allegedly baseless and malicious claims of Abraham that compelled him
to litigate and to engage the services of counsel, and thus caused him
to suffer mental anguish.
 
            Noting that the amount of the counterclaim was below the
exclusive original jurisdiction of the RTC, Abraham filed a motion to
dismiss vis-a-vis the counterclaim on that ground.
 
            Should the counterclaim of Salvador be dismissed? Explain your
answer.
 
 Suggested answer
 
            No, the counterclaim of Salvador should not be dismissed on the
ground of lack of jurisdiction.
 
            In an original action before the RTC, the RTC has jurisdiction over
a compulsory counterclaim regardless of its amount.
 
            Here Salvador’s counterclaim for damages arising from the
alleged malicious and baseless claims of Abraham is a compulsory
counterclaim as it arises from Abraham’s complaint. Hence the RTC has

168
jurisdiction over Salvador’s counterclaim even if it did not exceed the
jurisdictional amount of P400,000.
 BAR 2019

Mr. H filed a complaint against Mr. I to recover the amount of

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

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

(a) What is the nature of Mr. l's counterclaim? Is the payment of

filing fees required for such counterclaim to prosper? Explain.

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

Permissive Counterclaim (BAR 2011)

A permissive counterclaim does not arise out of the same
transaction or is not connected with the plaintiff’s cause of action. It
does not arise out of, nor is necessarily connected with the subject
matter of the opposing party’s claim. It is called permissive because it
can be the subject of a separate action. If it is not set up, it is not
barred.
Generally, a counterclaim is permissive if any of the elements of a
compulsory counterclaim discussed previously is absent. But the most

169
commonly treated feature of a permissive counterclaim is its absence
of a logical connection with the subject matter of the complaint, i.e., it
does not arise out of, or is not connected with the plaintiff’s cause of
action.
Distinction between a Compulsory Counterclaim and a Permissive
Counterclaim
The following are the most significant distinctions between the
two counterclaims:
1. A compulsory counterclaim which a party has at the time the
answer is filed shall be contained in the answer because a
compulsory counterclaim not set up shall be barred.

A permissive counterclaim is not subject to the above rule.

Hence, it may be set up as an independent action and will not
be barred if not contained in the answer to the complaint.
2. A compulsory counterclaim is not an initiatory pleading. A
permissive counterclaim is considered an initiatory pleading.

3. A permissive counterclaim should be accompanied by a

certification against forum shopping and whenever required by
law, also a certificate to file action issued by the Lupon
Tagapamayapa. A compulsory counterclaim which cannot be
independently set up, does not require the certificates
mentioned because it is not an initiatory in character. The
certificates mentioned are required to be attached in a
permissive counterclaim because it is an initiatory pleading.

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 4. A permissive counterclaim must be answered by the party
against whom it is interposed otherwise, he may be declared in
default as to the counterclaim. This is because it was ruled that
“any pleading asserting a claim must be answered and the
failure to do so by the party against whom the claim is asserted
rendered him to be declared in default in respect of such
claim.”

5. The docket and other lawful fees should be paid for a

permissive counterclaim. Such fees are not paid for a
compulsory counterclaim.

NOTE: Effective August 16, 2004, under Sec. 7 of Rule 141, as amended
by A.M. No. 04-2-04-SC, docket fees are now required to be paid in
compulsory counterclaim or cross-claim. (Note: This is no longer true)
BAR 1996
Plaintiff filed a complaint against defendant for recovery of
possession of real property with the Regional Trial Court of Manila.
Defendant filed an answer with affirmative defenses and interposed a
counterclaim for damages and attorney’s fees arising, from the filing of
the complaint. When the plaintiff failed to file an answer on the
counterclaim, defendant moved to declare him in default.
Notwithstanding the notice of the motion, plaintiff did not file an
opposition.
As judge, how would you resolve the motion to declare plaintiff in
default?

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Suggested answer
I would resolve the motion in favor of the plaintiff. The
counterclaim raised by the defendant is a compulsory counterclaim
because the issues involved therein are inseparably joined to those of
the complaint. A compulsory counterclaim need not be answered.
How to set up an omitted counterclaim
A counterclaim, which either matured or was acquired by a party
after serving his pleading, may, with leave of court (with the permission
of the court), be presented as a counterclaim by supplemental pleading
before judgment (Sec. 9, Rule 11, Rules of Court).
A counterclaim not initially set up because of the pleader’s
oversight, inadvertence, excusable neglect or when justice requires,
may be set up, by leave of court by amendment before judgment (Sec.
10, Rule 11). If not set up in the action, the compulsory counterclaim
shall be barred. A permissive counterclaim however will not be barred.
The bar of course refers to a compulsory counterclaim that a defending
party has at the time he files the answer, i.e., a counterclaim already
existing at the time the answer is filed.
Period to answer a counterclaim
If a counterclaim is to be answered, the same must be made
within ten (10) days from service (Sec. 4, Rule 11). This rule has more
relevance to a permissive counterclaim which has to be answered.
Under the present rules, Section 4, Rule 11: “A counter-claim or
cross-claim must be answered within twenty (20) calendar days from
service.”

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Effect of the dismissal of a complaint on the counterclaim already set
up (BAR 2010)
There are three significant situations involving the dismissal of a
complaint and the effect of such dismissal on the counterclaim already
pleaded by the defending party.
The First is the situation contemplated under the last paragraph
of Sec. 6 of Rule 16. Here, the defendant does not file a motion to
dismiss. Instead, he files an answer and utilizes certain grounds for a
motion to dismiss as affirmative defenses. Included in the answer is a
counterclaim. He then asks for a preliminary hearing on the affirmative
defenses set up, a request granted by the court. During the hearing on
the affirmative defenses, the court decides to dismiss the complaint. If
the complaint is dismissed, the counterclaim, compulsory or
permissive, is not dismissed. (Note: The current rules do not anymore
allow “motion for the preliminary hearing on affirmative defense)

The Second situation is covered by Sec. 2 of Rule 17. Under this

provision, the plaintiff himself files a motion to dismiss his complaint
after the defendant has pleaded his answer with a counterclaim. The
motion is granted by the court. The rule in this regard is unequivocal:

“[The dismissal shall be limited to the complaint. The dismissal

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

173
dismissal is “without prejudice to the rights of the defendant to
prosecute his counterclaim in the same or separate action.”

Effect of Dismissal of the Counterclaim.

The dismissal of a counterclaim is a final order because it would
require nothing else to be done by the court with respect to that
specific subject except only to await the possible filing of motion for
reconsideration or the taking of an appeal therefrom.(Santo Tomas
University Hospital vs. Surla, 294 SCRA 382.
BAR 1994
Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be
reimbursed the value of improvements she has introduced in the same
land and the payment of damages she has sustained. Should Lea file a
separate action against Aya for that purpose?
Suggested answer
The claim of Lea cannot be the subject of a separate action but
must be interposed in the very the same action. This is because Lea’s
claim is a compulsory counterclaim. Under existing procedural rules, a
compulsory counterclaim if not set up is barred. A counterclaim is
compulsory if it is connected with the transaction or occurrence subject
matter of the other party’s claim, if it does not require for its
adjudication the presence of third parties of whom the court cannot
acquire jurisdiction and it must be within the jurisdiction of the court.
Be it noted however, that Rule 141 on Legal Fees was revised
effective August 16, 2004, by A.M. No. 04-2-04-SC. The revision
included the payment of docket fees not only for permissive
counterclaims but also for compulsory counterclaims and cross- claims,

174
third party complaints, and complaints-in-intervention. (Note: No
longer true)
MAY THE REGIONAL TRIAL COURT ENTERTAIN A COUNTERCLAIM
BELOW ITS JURISDICTION?

ANSWER. Yes, provided it arises out of the same transaction or

occurrence constituting the subject matter of the opposing party’s
claim. (Maceda vs. CA, 176 SCRA 440).
WHAT IS THE EFFECT WHERE A COUNTERCLAIM IS FILED BEYOND THE
JURISDICTION OF THE MTC?

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

The rule of jurisdiction in an independent action applies to

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

MAY A PARTY FILE A MOTION TO DISMISS AND SET UP A COMPULSORY

COUNTERCLAIM AT THE SAME TIME? WHY?

175
ANSWER. No. The filing of a motion to dismiss and the setting up of a
compulsory counterclaim are incompatible remedies. In the event that
a defending party has a ground for dismissal and a compulsory
counterclaim at the same time, he must choose only one remedy. If he
decides to file a motion to dismiss, he loses his compulsory
counterclaim. But if he opts to set up his compulsory counterclaim, he
may still plead his ground for dismissal as an affirmative defense in his
answer. (Financial Building Corporation vs. Forbes Park Association,
Inc., G.R. No. 133119, August 17, 2000.)
Does the dismissal of the complaint for non-appearance of the plaintiff
at pre-trial conference upon motion of the defendant carry with it the
dismissal of compulsory counterclaim?
In the CAB, the plaintiff did not appear at pre-trial, the defendant
moved for the dismissal of the complaint. The same was granted. Now,
the defendant moved for an adjudication of his compulsory
counterclaim.
Ruling: YES. Compulsory counter-claim is also dismissed. There are
several requirements of a compulsory counterclaim:
(a) It arises out of, or is necessarily connected with the
transaction or occurrence which is the subject matter of the
opposing party’s claim;
(b) It does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction; and

(c)The court has jurisdiction to entertain the claim both as to the

amount and the nature thereof.

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In CAB, the compulsory counter-claim cannot remain pending for
independent adjudication. The compulsory counterclaim is auxiliary to
the proceeding in the original suit and merely derives its jurisdictional
support from the original case. If the court has no or loses jurisdiction
over the main case, it has no jurisdiction over the compulsory counter-
claim. In CAB, the court has lost jurisdiction over the main case by
virtue of its dismissal upon motion by the defendant (BA Finance vs. Co,
224 SCRA 163 ) (1993) (See: Rule 17)
Section. 8. CROSS – CLAIM. – A cross-claim is any claim by one party
against a co-party arising out of the transaction or occurrence that is
the subject matter either of the original action or of a counterclaim
therein. Such cross-claim may COVER ALL OR PART OF THE ORIGINAL
CLAIM.
Nature of a cross-claim
A cross-claim is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein.
While a counterclaim is asserted by a defending party against a
claimant, a cross-claim is asserted by a defending party against a co-
defending party so that the latter may be held liable for the claim which
the claimant seeks to recover from the cross-claimant.

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

177
Example:
If JJ Trucker hired some loaders to load the furniture, and they
were the ones that damaged the furniture, then JJ Trucker could file a
cross claim against the loaders for all or part of the damage to the
furniture.
A cross claim that a party has at the time the answer is filed shall
be contained in said answer (Sec. 8, Rule 11). Broadly, this means that
the cross-claim must be set up in the same action. If through oversight,
inadvertence, or excusable negligence, it is not asserted, it may still be
set up with leave of court, by amendment of the pleadings. It has to be
set up in the action because if not set up shall be barred. Note,
however, that the cross-claim that shall be barred if not asserted is the
cross-claim already existing at the time the answer is filed, not the
cross-claim that may mature or may be acquired after service of the
answer. As to the latter, Sec. 9 of Rule 11 declares that it may, by
permission of the court, be presented by supplemental pleading before
judgment.

What are the requirements for a cross-claim?

The following are the requirements for a cross-claim:
(a)It is a claim by one party against a co-party;

(b) The claim must arise out of the subject matter of the
complaint or of the counterclaim; and

(c)The cross-claimant is prejudiced by the claim against him by the

opposing party. (Sec. 8, Rule 6)

BAR 1997

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 B and C borrowed Php400, 000. 00 from A. The promissory note
was executed by B and C in a joint and several capacity. B, who received
the money from A, gave C Php200, 000. 00. C, in turn loaned Php100,
000. 00 out of the Php200, 000. 00 he received to D.
In an action filed by A against B and C with the Regional Trial
Court of Quezon City, can B file a cross claim against C for the amount
of Php200, 000. 00?
Suggested answer
B can file a cross-claim against C. A cross claim is proper when the
claim is filed against a co-party, such claim arises out of the transaction
or occurrence subject of the original action and the cross-claim is
prejudiced by the claim against him by the plaintiff. The facts of the
case squarely fit the elements of a cross-claim.
Distinction between a cross-claim and a counterclaim (BAR 1999)
1. A cross-claim is a claim against a co-party; a counterclaim is a
claim against an opposing party; and

2. A cross-claim must arise from the transaction or occurrence

that is the subject matter of the original complaint or
counterclaim. A counterclaim may or may not arise out of the
subject matter of the complaint. It may be compulsory or
permissive.

Period to answer a cross-claim

A cross-claim must be answered within twenty (20) calendar days
from service (Sec. 4, Rule 11)
Reason for allowing the Cross-Claim

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 The rule is designed to enable the disposition of the entire
controversy in one action and to discourage multiplicity of suits
(Republic v. Paredes, L-21548, May 20, 1960).

No cross-claim on appeal
While a defendant may have a definite cause of action against a
co-defendant, it cannot succeed in seeking judicial sanction against the
latter if the records disclose that no cross-claim was interposed, nor
was there a prayer that the co-defendant should be liable for all claims
that may be adjudged in favor of the plaintiff. Under the Rules, a cross-
claim not set up shall be barred. Thus, a cross-claim cannot be set up
for the first time on appeal (Loadmasters Customs Services, Inc., v.
Glodel Brokerage Corporation, G.R. No. 179446, January 10, 2011)
WHAT IS A CROSS CLAIM AND WHAT DOES IT INCLUDE?

ANSWER. A cross claim is any claim by one party against a co-

party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein. Such
cross-claim may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a
claim asserted in the action against eh cross-claimant.
IS THE FILING OF CROSS-CLAIM A MATTER OF RIGHT?

ANSWER. No, because there are limitations like:

(1) It must arise out of the subject matter of the complainant;
(2) It can be filed only against a co-party;

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 (3) It is proper only where cross-claimant stands to be prejudiced by
the filing of the action against him.

WHAT IS THE EFFECT OF THE DISMISSAL OF THE MAIN ACTION ON THE

CROSS-CLAIM? WHY?

ANSWER. If the complaint is dismissed, the cross-claim should also

be dismissed. (Rep. vs. Bisaya Trans. Co Inc., 81 SCRA 9). This is so
because there is no more leg for the cross-claim to stand on as it should
arise from the main action.
Please note: Under Section 4, Rule rule, “cross-claim must be answered
within twenty (20) calendar from service.”
SEC. 9. Counter-counterclaims and counter-cross claims. – A
counterclaim may be asserted against an original counter-claimant.
A cross-claim may also be filed against an original cross- claimant.
Section. 10. REPLY. – ALL NEW MATTERS ALLEGED IN THE ANSWER
ARE DEEMED CONTROVERTED. IF THE PLAINTIFF WISHES TO
INTERPOSE ANY CLAIM ARISING OUT OF THE NEW MATTERS SO
ALLEGED, SUCH CLAIMS SHALL BE SET FORTH IN AN AMENDED OR
SUPPLEMENTAL COMPLAINT. HOWEVER, THE PLAINTIFF MAY FILE A
REPLY ONLY IF THE DEPENDING PARTY ATTACHES AN ACTIONABLE
DOCUMENT TO HIS OR HER ANSWER.
A reply is a pleading, the office or function of which is to deny, or
allege facts in denial or avoidance of new matters alleged IN, OR
RELATING TO, SAID ACTIONABLE DOCUMENT.
IN THE EVENT AN ACTIONABLE DOCUMENT ATTACHED TO THE REPLY,
THE DEFENDANT MAY FILE A REJOINDER IF THE SAME IS BASED
SOLELY ON AN ACTIONABLE DOCUMENT.

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Nature of a Reply
A reply is a pleading, the function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by way of defense in
the answer and thereby joins or makes issue as to such new matters.
(Sec. 10, Rules 6)

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

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

Filing of reply, not mandatory

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

Under the new rules, “If the plaintiff wishes to interpose any
claims arisng out of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint. “

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 Contrast this with the rule that the failure to specifically deny the
material allegations of the Complaint shall mean the implied admission
of such material allegations (Sec. 11, Rule 8). Thus, the gist of the rule
is: The material allegations of a complaint must be specifically denied
but the allegations of new matters or material allegations of the Answer
need not be denied because they are deemed denied by the Rules for
the plaintiff.
BAR 1996
A sued B for damages. B in his answer alleged as a new matter the
issue of prescription. No reply thereto was filed by A. Can the action be
dismissed for failure of A to controvert the new matter set up by B?
Explain.
Suggested answer
The action cannot be dismissed. The failure of the plaintiff to file a
reply is not a ground for the dismissal of an action. Besides, if a party
does not file a reply, all the new matters alleged in the answer are
deemed controverted (Sec. 10, Rule 6). The allegation of prescription is
therefore, deemed denied even if A does not file a reply.
When filing of Reply is advisable
When the defense in the answer is based upon written instrument
or document, said instrument is considered an actionable document
(Sec. 7, Rule 8). Hence, the plaintiff has to file a reply under oath if he
desires to deny specifically the genuineness and due execution of the
actionable document and if he wants to avoid ad admission of such
matters under Sec. 8, Rule 8 of the Rules of Court.

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 In the same Section 10, Rule 6, “However, the plaintiff may file a
reply only if the defending party attaches an actionable document to
his or her answer.”
BAR 2000
X files a complaint in the RTC for the recovery of a sum of money
with damages against Y. Y files his answer denying liability under the
contract of sale and praying for the dismissal of the complaint on the
ground of lack of cause of action because the contract of sale was
superseded by a contract of lease executed and signed by X and Y two
weeks after the contract of sale was executed. The contract of lease
was attached to the answer. X does not file a reply. What is the effect of
the non-filing of the reply?
Suggested answer
By not filing a reply, X is deemed to have admitted the
genuineness and the due execution of the contract of lease. As a rule,
the new matters alleged in the answer are deemed controverted even if
a party does not file a reply. This rule, however, finds no application
where the defense is founded upon a written instrument. Under Sec. 8
of Rule 9 of the Rules of Court, when a defense is founded upon an
instrument, the genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, specifically denies them
under oath. X should have filed a reply specifically denying under oath
the genuineness and due execution of the contract of lease.
WHAT IS A REPLY?

ANSWER. A reply is a pleading, the office of function of which is to

deny, or allege facts, in denial or avoidance of new matter alleged by

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way of defense in the answer and thereby join or make issue as to such
new matters.

WHAT ARE SOME OF THE PURPOSES OF A REPLY?

ANSWER. They are;

(a)To set up affirmative defenses on the counterclaim (Rosario
vs. Martinez, 92 Phil. 1064).

(b)To prevent a document from being admitted as to the

genuineness and due execution in case the answer
interposes an actionable document. (Toribio vs. Bidin, 134
SCRA 162).

Filing of Rejoinder, not mandatory

The filing of a rejoinder to a reply is optional on the part of the
defendant, and it is possible only IN THE EVENT AN ACTIONABLE
DOCUMENT ATTACHED TO THE REPLY, THE DEFENDANT MAY FILE A
REJOINDER IF THE SAME IS BASED SOLELY ON AN ACTIONABLE
DOCUMENT.
The 3rd par of Section 10, Rule 6, is clear: “In the event of an
actionable document attached to the reply, the defendant may file a
rejoinder if the same is based solely on an actionable document.”
Remember: In Section 6, Rule Rule, it states: A reply, if allowed under
Section 10, Rule 6 hereof, may be filed within fifteen (15) calendar days
from service of the pleading responded to.
Section. 11. THIRD (FOURTH, ETC)- PARTY COMPLAINT. – A third
(fourth, etc.)- party complaint is a claim that a defending party may,

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with leave of court, file against a person NOT a party to the action,
called the third (fourth, etc)- party defendant, for CONTRIBUTION,
INDEMNITY, SUBROGATION or any other relief, in respect of his OR
HER opponent ‘s claim.
THE THIRD (FOURTH, ETC) – PARTY COMPLAINT SHALL BE DENIED
ADMISSION, AND THE COURT SHALL REQUIRE THE DEFENDANT TO
INSTITUTE A SEPARATE ACTION, WHERE: (A) THE THIRD (FOURTH,
ETC) – PARTY DEFENDANT CANNOT BE LOCATED WITHIN THIRTY (30)
CALENDAR DAYS FROM THE GRANT OF SUCH LEAVE; (B) MATTERS
EXTRANEOUS TO THE ISSUE IN THE PRINCIPAL CASE ARE RAISED; OR
(C) THE EFFECT WOULD BE TO INTRODUCE A NEW AND SEPARATE
CONTROVERSY INTOT THE ACTION.
Nature of a third-party complaint
The third party complaint is a procedural device whereby a ‘third
party’ who is neither a party nor a privy to the act or deed complained
of by the plaintiff, may be brought into the case with leave of court, by
the defendant, who acts as third-party plaintiff to enforce against such
third-party defendant a right for contribution, indemnity, subrogation
or any other relief, in respect to plaintiff’s claim.
This pleading is a claim which a defending party may, with leave
of court, file against a person who is not yet a party to the action for
CONTRIBUTION, INDEMNITY, SUBROGATION or any other relief, in
respect of his opponent’s claim (Sec. 11, Rule 6, Rules of Court).

A third-party complaint is actually a complaint independent of,

and separate and distinct from the plaintiff’s complaint.

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 The filing of a third-party complaint requires leave of court. The
admission of a third-party complaint is therefore, a matter of judicial
discretion.

Please note:
Answer to a third-party complaint
The time to answer a third-party complaint shall be governed by
the same rule as the answer to the complaint, hence, within 30
calendar days from service of summons (Sec. 1, Rule 11, Rules of Court)
Examples:
(a)If Mr. Plaintiff sues Mr. Defendant for collection of a sum of
money borrowed by Mr. Defendant from Mr. Plaintiff. Upon the
request of Mr. E, Mr. Defendant may, with leave of court, file a
third-party complaint against Mr. E for indemnity or contribution.

But if the third party defendant Mr E cannot be served with

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

In like manner, if the purpose of bringing in Mr E to the complaint

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

(b) If Mr. Seller sells a car to Mr. Buyer and the real owner, Mr.
Owner sues Mr. Buyer for the recovery of the car. Mr. Buyer may

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 file a third-party complaint against Mr. Seller to require the latter
to answer for breach of warranty against eviction.

(c)Messrs. A, B and C jointly and severally bind themselves to pay

Mr. D Php600, 000. 00. Mr. D sued Mr. A alone when the debt
was not paid on maturity. Mr. A may file a third-party complaint
against Messrs. B and C for contribution. While Mr. D can sue Mr.
A alone because the obligation is solidary, the other debtor may
be brought in by Mr. A as third-party defendants.

(d) Mr. P, a pedestrian sues Mr. O, operator of a taxicab for

damages based on a quasi-delict theory. Mr. O may file a third
party complaint against Mr. D, the driver of the taxicab on the
ground that it was his negligence that actually caused the injury.

BAR 1996
A assembles an owner-type jeep for B who in turn rents it to X.
due to faulty brakes, X figures in a vehicular accident causing him
severe injuries. X files an action for damages against A and B.
May B file a third-party complaint against A for indemnity?
Suggested answer
B cannot file a third-party complaint against A. This pleading is
filed only against a person who is not a party to the action. Since A is
already a party to the suit, he cannot be the object of a third party
claim. B however, may file a cross-claim against his co-defendant.
The present rules provide that:” THE THIRD (FOURTH, ETC) – PARTY
COMPLAINT SHALL BE DENIED ADMISSION, AND THE COURT SHALL
REQUIRE THE DEFENDANT TO INSTITUTE A SEPARATE ACTION, WHERE:

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 (A) THE THIRD (FOURTH, ETC) – PARTY DEFENDANT CANNOT BE
LOCATED WITHIN THIRTY (30) CALENDAR DAYS FROM THE GRANT OF
SUCH LEAVE;
(B) MATTERS EXTRANEOUS TO THE ISSUE IN THE PRINCIPAL CASE
ARE RAISED; OR
(C) THE EFFECT WOULD BE TO INTRODUCE A NEW AND SEPARATE
CONTROVERSY INTO THE ACTION.

Example form:
MOTION FOR LEAVE OF COURT TO FILE THIRD-PARTY COMPLAINT
COMES NOW, the defendant, through the undersigned counsel
and unto this Honorable Court, most respectfully avers:
1. That the defendant has been sued for collection of sum of money
in the total amount of Php500, 000. 00, exclusive of cost and
interest, and attorney’s fees;

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

3. That after the purchase of the said motor vehicle aforementioned,

third-party plaintiff immediately delivered the same to the third-
party defendant who promised to pay the full purchase price to
the plaintiff. Copy of the Third-Party Complaint is hereto attached
as Annex “A” hereof.

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 WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Court that the defendant be allowed to file
third-party complaint.
Other relief and remedies as may be deemed just and equitable
under the premises are likewise prayed for.
Section. 12. Bringing new parties. – When the presence of parties
other than those to the original action is required for granting of
complete relief in the determination of a counterclaim or cross-claim,
the court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.
What is the rule in case of bringing new parties?
When the presence of parties other than those to the original
action is required for granting of complete relief in the determination of
a counterclaim or cross-claim, the court shall order them to be brought
in as defendants, if jurisdiction over them can be obtained.
Section. 13. Answer to third (fourth, etc)- party complaint. – A third
(fourth, etc) – party defendant may allege in his OR HER answer his
OR HER defense, counterclaims or cross-claims, including such
defenses that the third (fourth, etc)- party plaintiff may have against
the original plaintiff’s claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in respect of the latter’s
claim against the third-party plaintiff.

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 RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1. Caption. – The caption sets forth the name of the court, the
title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the first
party on each side be stated with an appropriate indication when
there are other parties.
Their respective participation in the case shall be indicated.
1. Caption of the Pleading

2. Title of the Action

3. Body of the Pleading

4. Headings; designation of causes of action joined in one complaint

5. Allegations of ultimate facts

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

Juan Dela Cruz, Civil Case No. 20 - 12345

Plaintiff

-versus- For: Sum of Money

Pedro Reyes,
Defendant.

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

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

b. A signed pleading is one that is signed either by the party

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

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

(a) Paragraphs. — The allegations in the body of a pleading shall

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

(b) Headings. — When two or more causes of action are joined

the statement of the first shall be prefaced by the words "first
cause of action,'' of the second by "second cause of action", and
so on for the others.

When one or more paragraphs in the ANSWER are addressed to

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

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

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

The body of the pleading sets forth its designation, the allegations
of the party’s claims or defenses, the relief prayed for, and the date of
the pleading.
Allegations of ultimate facts:
Every pleading, including the complaint, is not supposed to allege
conclusions. A pleading must only aver facts because conclusions are
for the courts to make. (Please see Section 6, Rule 7)
Section. 3. Signature and address. – (a) Every pleading and other
written submission to the court must be signed by the party or
counsel representing him OR HER.
(b)The signature of counsel constitutes a certificate by him
OR HER that he OR SHE has read the pleading AND
DOCUMENT; that to the best of his OR HER knowledge,
information, and belief, FORMED AFTER AN INQUIRY
REASONABLE UNDER THE CIRCUMSTANCES:

(1) IT IS NOT BEING PRESENTED FOR ANY

IMPROPER PURPOSE, SUCH AS TO HARASS, CAUSE
UNNECESSARY DELAY, OR NEEDLESSLY INCREASE
THE COST OF LITIGATION;

(2) THE CLAIMS, DEFENSES AND OTHER LEGAL

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

(3) THE FACTUAL CONTENTIONS HAVE

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

(4) THE DENIALS OF FACTUAL CONTENTIONS ARE

WARRANTED ON THE EVIDENCE OR, IF SPECIFICALLY
SO IDENTIFIED ARE REASONABLY BASED ON BELIEF
OR A LACK OF INFORMATION.
© IF THE COURT DETERMINES, ON MOTION OR MOTU PROPRIO AND
AFTER NOTICE AND HEARING, THAT THIS RULE HAS BEEN VIOLATED,
IT MAY IMPOSE AN APPROPRIATE SANCTION OR REFER SUCH
VIOLATION TO THE PROPER OFFICE FOR DISCIPLINARY ACTION, ON
ANY ATTORNEY, LAW FIRM, or party that violated the rule, or is
responsible for the violation. Absent exceptional circumstances, a law
firm shall be held jointly and severally liable for a violation committed
by its partner, associate, or employee. The sanction may include, but
shall not be limited to, non-monetary directive or sanction; an order
to pay a penalty in court; or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant of
part or all of the reasonable attorney’s fees and other expenses
directly resulting from the violation, including attorney’s fees for the
filing of the motion for sanction. The lawyer or law firm cannot pass
on the monetary penalty to the client.

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Effect of an unsigned pleading
The signature in the pleading is important for it to have a legal
effect. Under the Rules of Court (Sec. 3, Rule 7), “an unsigned pleading
produces no legal effect.” The court however, is authorized to allow the
pleader to correct the deficiency if the pleader shows to the satisfaction
of the court, that the failure to sign the pleading was due to mere
inadvertence and not to delay the proceedings.
Significance of the signature of counsel (BAR 1996)
The signature of a counsel in a pleading is significant. His
signature constitutes a certificate by him that (a) he has read the
pleading; (b) that to the best of his knowledge, information and belief
there is good ground to it.
The new rules provide for additional importance of the signature
of counsel, and they are as follows:
(1) IT IS NOT BEING PRESENTED FOR ANY IMPROPER
PURPOSE, SUCH AS TO HARASS, CAUSE
UNNECESSARY DELAY, OR NEEDLESSLY INCREASE THE
COST OF LITIGATION;

(2)THE CLAIMS, DEFENSES AND OTHER LEGAL

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

(3)THE FACTUAL CONTENTIONS HAVE EVIDENTIARY

SUPPORT OR, IF SPECIFICALLY SO IDENTIFIED, WILL
LIKELY HAVE EVIDENTIARY SUPPORT AFTER

196
 AVAILMENT OF THE MODES OF DISCOVERY UNDER
THESE RULES; AND

(4)THE DENIALS OF FACTUAL CONTENTIONS ARE

WARRANTED ON THE EVIDENCE OR, IF SPECIFICALLY
SO IDENTIFIED ARE REASONABLY BASED ON BELIEF
OR A LACK OF INFORMATION.
Are there sanctions in the event of its violation?
IF THE COURT DETERMINES, ON MOTION OR MOTU PROPRIO
AND AFTER NOTICE AND HEARING, THAT THIS RULE HAS BEEN
VIOLATED, IT MAY IMPOSE AN APPROPRIATE SANCTION OR REFER
SUCH VIOLATION TO THE PROPER OFFICE FOR DISCIPLINARY ACTION,
ON ANY ATTORNEY, LAW FIRM, or party that violated the rule, or is
responsible for the violation. Absent exceptional circumstances, a law
firm shall be held jointly and severally liable for a violation committed
by its partner, associate, or employee.
What are included in the sanction?
The sanction may include, but shall not be limited to:
1. Non-monetary directive or sanction;

2. An order to pay a penalty in court; or

3. If imposed on motion and warranted for effective

deterrence, an order directing payment to the movant of
part or all of the reasonable attorney’s fees and other
expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction.
The lawyer or law firm cannot pass on the monetary
penalty to the client.

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Section. 4. Verification. – Except when otherwise specifically required
by law or rule, pleading need not be under oath, verified or
accompanied by affidavit.
A pleading is verified by an affidavit of an affiant duly authorized
to sign said verification. The authorization of the affiant to act on behalf
of a party, whether in the form of a secretary’s certificate or a special
power of attorney, should be attached to the pleading, and shall allege
the following attestations:

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

(b) The pleading is not filed to harass, cause unnecessary delay, or

needlessly increase the cost of litigation; and

(c) The factual allegations therein have evidentiary support or, if

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

The signature of the affiant shall further serve as a certification of the

truthfulness of the allegations in the pleading.

A pleading required to be THAT contains a verification based on

“information and belief” or upon “ knowledge, information and
belief,” or lacks a proper verification, shall be treated as an unsigned
pleading (As amended by A.M. No. 00-2-10, May 1, 2000)
Verification in a pleading
Pleadings need not be under oath, verified or accompanied by
affidavit, except when so required by law or rule (Sec. 4, Rule 7)

198
How a pleading is verified
A pleading is verified by an affidavit. This affidavit declares that (a)
that affiant has read the pleading, and (b) that the allegations therein
are true and correct of his personal knowledge or based on authentic
records (Sec. 4, Rule 7, Rules of Court as amended by A.M. No. 00-2-10,
May 1, 2000). Verification is intended to insure that the allegations
therein have been prepared in good faith or are true and correct, not
mere speculation (Robert Development corporation v. Quitain, 315
SCRA 150).
Effect of lack of verification (BAR 2011)
1. A pleading required to be verified but lacks the proper verification
shall be treated as an unsigned pleading. Hence, it produces no
legal effect. (Torres, 468 SCRA 358)

2. It has however, been held that the absence of a verification or the

non-compliance with the verification requirement does not
necessarily render the pleading defective. It is only a FORMAL and
not a jurisdictional requirement. The requirement is a condition
affecting only the form of the pleading.

Other requirements:
1. All pleadings, motions, and papers filed in court by counsel shall
bear, in addition to counsel’s current Professional Tax Receipts
Number (PTR), counsel’s current IBP Official Receipts Number
indicating its date of issue. Pleadings, motions, and papers which
do not comply with this requirement may not be acted upon by
the court, without prejudice to whatever disciplinary action the
court may take against the erring counsel who likewise be

199
 required to comply with the requirement within five (5) days from
notice.

2. To require all lawyers to indicate their Roll of Attorneys Number in

all papers and pleadings filed in judicial and quasi-judicial bodies.

3. All practicing members of the bar are required to indicate in all

pleadings filed, before the courts or quasi judicial bodies, the
number and date of issue of their MCLE Certificate of Compliance
or Certificate of Exemption. Failure to disclose the required
information would cause the dismissal of the case and the
expunction of the pleadings from the records.

BAR 2017

Tailors Toto, Nelson and Yenyen filed a special civil action for
certiorari under Rule 65 from an adverse decision of the National Labor
Relations Commission (NLRC) on the complaint for illegal dismissal
against Empire Textile Corporation. They were terminated on the
ground that they failed to meet the prescribed production quota at
least four (4) times. The NLRC decision was assailed in a special civil
action under Rule 65 before the Court of Appeals (CA). In the
verification and certification against forum shopping, only Toto signed
the verification and certification, while Atty. Arman signed for Nelson.
Empire filed a motion to dismiss on the ground of defective verification
and certification. Decide with reasons. (5%)

Suggested answer

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 The motion to dismiss on the ground of defective verification
should be denied.  The Supreme Court has held that a lawyer may verify
a pleading in behalf of the client.  Moreover a verification is merely a
formal and not a jurisdictional requirement.  The court should not
dismiss the case but merely require the party concerned to rectify the
defect. 
The motion to dismiss on the ground of defective certification against
forum-shopping should likewise be denied.  Under reasonable or
justifiable circumstances, as when all the plaintiffs or petitioners share
a common interest and invoke a common cause of action or defense,
the signature of only one of them in the certification against forum
shopping substantially complies with the Rule. (Jacinto v. Gumaru, 2
June 2014). Here the Petitioners have a common interest and invoke a
common cause of action, that is, their illegal dismissal by Empire Textile
Corporation for failure to meet production quotas.   

Section. 5. Certification against forum shopping. – The plaintiff or the

principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any action or filed any claim
involving the same issued in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other action or claim, a
complete statement of the present status thereof; (c) if he should
thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) CALENDAR days
therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed.
The authorization of the affiant to act on behalf of a party, whether
in the form of a secretary’s certificate or a special power of attorney,
should be attached to the pleading.
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Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and hearing. The
submission of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court,
without prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions.
Certification Against Forum Shopping (BAR 2000; 2009; 2010)
1. The certification against forum shopping is a sworn statement
in which the plaintiff or principal party certifies in a complaint
or initiatory pleading to the following matters:

(a)That he has not commenced any action or filed any claim

involving the same issues in any court, tribunal, or quasi-
judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein;

(b) That if there is such other pending action or claim, a

complete statement of the present status thereof; and

(c)That if he should therefore learn that the same or similar action

has been filed or is pending, he shall report that fact within five
(5) days therefrom to the court wherein his complaint or
initiatory pleading has been filed (Sec. 5, Rule 7, Rules of Court)

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

3. The Court held that the rule requiring a certification against

forum shopping applies as well to special civil actions since a
special civil action is governed by the rules for ordinary civil
actions, subject to the specific rules prescribed for a special
civil action.

4. The principle against forum shopping applies not only with

respect to suits filed in the courts but also in connection with
litigations commenced in the courts while an administrative
proceeding is pending in order to defeat administrative
processes and in anticipation of a unfavorable administrative
ruling (Multinational vs. Court of Appeals, G.R. No. 98023,
October 17, 1991)

5. As to certification against forum shopping, non-compliance

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

ELEMENTS OF FORUM SHOPPING

There is forum shopping where there exist:

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 1. Identity of parties or at least such parties as represent the
same interests in both actions;

2. Identity of rights asserted and relief prayed for, the relief

being founded on the same facts; and

3. The identity of the two preceding particulars is such that any

judgment rendered in the pending case, regardless of which
party is successful would amount to res judicate (Young vs.
Spouses Sy, 503 SCRA 151)

THREE WAYS OF COMMITITNG FORUM SHOPPING

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

(b) Filing multiple cases based on the same cause of acion

and the same prayer, the previous case having been finally
resolved (where the ground for dismissal is res judicata); and

(c)Filing multiple cases based on the same cause of action, but

with different prayers (splitting of causes of action, where
the ground for dismissal is also either litis pendencia or res
judicata.

REASONS FOR PROHIBITING FORUM SHOPPING

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

(b) The rationale against forum shopping is that a party should

not be allowed to pursue simultaneous remedies in two
different fora. Filing multiple petitions or complaints
constitutes abuse of court processes, which tends to degrade
the administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the heavily
burdened dockets of the courts.

Who executes the certification against forum shopping (BAR 2000);

exception:
1. It is the plaintiff or principal party who executes the certification
under oath. The certification must be executed by the party, not
the attorney. It is the petitioner and not the counsel who is in the
best position to know whether he or it actually filed or caused the
filing of a petition. A certification signed by counsel is a defective
certification and is a valid cause for dismissal.

2. While the rule is that certification against forum must be executed

by the party-pleader and not by his counsel, the rule is subject to
exceptions.

3. If, for reasonable or justifiable reasons, the party-pleader is

unable to sign, he must execute a Special Power of Attorney
designating his counsel or record to sign on his behalf.

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

2. The failure to submit a certification against forum shopping is a

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

NO APPEAL FROM AN ORDER OF DISMISSAL

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 If the complaint is dismissed for failure to comply with the
required certification against forum shopping, may the plaintiff appeal
from the order of dismissal where the dismissal is one without
prejudice?
He cannot appeal from the order. This is because an order
dismissing an action without prejudice is not appealable. The remedy
provided for under Sec. 1 of Rule 41 is to avail of the appropriate
special civil action under Rule 65.
SIGNING THE CERTIFICATION WHEN THE PLAINTIFF IS A JURIDICAL
ENTITY:
A juridical entity, unlike a natural person, can only perform
physical acts through properly designated individuals. The certification
against forum shopping where the plaintiff or a principal plaintiff is a
juridical entity like a corporation, may be exercised by properly
authorized persons. This person may be the lawyer of the corporation.
As long as he is duly authorized by the corporation and has personal
knowledge of the facts required to be disclosed in the certification
against forum shopping, the certification may be signed by the
authorized lawyer.
PLEADINGS REQUIRING A CERTIFICATION AGAINST FORUM SHOPPING:
The certification against forum shopping applies to the complaint
and other initiatory pleadings asserting a claim for relief. These
initiatory pleadings include not only the original complaint but also a
permissive counterclaim, cross-claim, third (fourth, etc.) party
complaint, complaint-in-intervention, petition or any application for
which a party asserts his claim for relief.
The rule does not require a certification against forum shopping
for a compulsory counterclaim because it cannot be the subject of a

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separate and independent adjudication as when the counterclaim is for
damages, moral, exemplary or attorney’s fees, by reason of the alleged
malicious and unfounded suit filed against the defendant. It is
therefore, not an initiatory pleadings. (Santo Tomas University v. Surla,
294 SCRA 382).
EFFECTS OF NON-COMPLIANCE WITH THE RULE ON CERTIFICATION
AGAINST FORUM SHOPPING (BAR 1996)
1. The failure to comply with the required certification is “not
curable by a mere amendment” and shall be a cause for the
dismissal of the action. The dismissal of the action for failure to
comply with the certification requirement is not to be done by the
court motu proprio. The rule requires that the dismissal be upon
motion and after hearing (Sec. 5, Rule 7, Rules of Court)

2. If the case is dismissed for failure to comply with the certification

requirement, the dismissal is, as a rule, “without prejudice,”
unless the order of dismissal otherwise provides. Hence, where
the dismissal is silent as to the character of the dismissal, the
dismissal is presumed to be without prejudice to the refilling of
the complaint.

3. The failure to submit a certification against forum shopping is a

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

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STATE THE EFFECT IF THERE IS FORUM SHOPPING.

If the forum shopping is not considered willful and deliberate, the

subsequent case shall be dismissed without prejudice. However, if the
forum shopping is willful and deliberate, both (or all, if there are more
than two) actions shall be dismissed with prejudice. (supra)
THE RULES REQUIRE THAT WHENEVER AN ACTION IS FILED, IT MUST BE
ACCOMPANIED BY A CERTIFICATE OF NON-FORUM SHOPPING. STATE
THE REASON FOR THE RULE. EXPLAIN.

The rationale of the rule is to curb the malpractice referred to as

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

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

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Certificate of non-forum shopping is not necessary:
(a) When what is filed is a mere motion for extension (Far Eastern
Shipping Co. vs. CA, G.R. No. 130068, October 1, 1998)

(b) In criminal cases and distinct causes of actions. (People vs.

Ferrer, 85 SCAD 835)

ANTHONY AND BARBARA FILED A COMPLAINT FOR DAMAGES AGAINST

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

It depends. A certificate of non-forum shopping is not necessary

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

It has no effect if the counterclaim is compulsory. Well- settled is

the rule that the requirement of certificate does not apply to
compulsory counterclaim pleaded in an answer. The rationale behind
the rule is that such a claim is not initiatory in character. It is otherwise,
if it is permissive, because a permissive counterclaim is an initiatory
pleading. The rules require that all initiatory pleadings must be
accompanied by a certificate of non-forum shopping. (UST Hospital vs.
Suria, 294 SCRA 382)
WHY CANNOT THE LAWYER, AS A RULE, SIGN THE CERTIFICATE OF
NON-FORUM SHOPPING? EXPLAIN.

The certificate of non-forum shopping must be signed by the

plaintiff or any of the principal party and not the attorney. In Digital
Microwave Corp. vs. CA, et.al., GR No. 128550, March 16, 2000, it was
said that even counsel may not be aware of said facts. The client knows
them, the counsel may be aware of the case, but not of other possible
actions. If it is a corporation, any of the directors may sign. (Escorpiso
vs. University of Baguio, 306 SCRA 503).

Sample form: Verification / Certification against non-forum shopping

VERIFICATION / CERTIFICATION AGAINST NON-FORUM SHOPPING
REPUBLIC OF THE PHILIPPINES)

212
 CITY OF ILOILO ) S.S.

I Juan Dela Cruz, of legal age, Filipino citizen, married, and a

resident of Barangay San Roque, Jaro, Iloilo City, Philippines, after
having been duly dworn to in accordance with law do hereby depose
and say:
1. That I am the plaintiff in the above-entitled case;
2. That I have caused the preparation of the foregoing Complaint an
dhave read the allegations contained therein;
3. That the allegations in the said Complaint are true and correct of
my own knowledge and authentic records;
4. I hereby certify that I have not commenced any other action or
proceeding involving the same issues in the Supreme Court, Court
of Appeals, or any other tribunal or agency;
5. That if I should thereafter learned that a similar action or
proceedings has been filed or is pending before the Supreme
Court, Court of Appeals, or any other tribunal or agency, I hereby
undertake to report the fact within five (5) days therefrom to the
court or agency wherein the original pleading and sworn
certification contemplated herein have been filed.
6. I execute this verification/certification to attest to the truth of the
foregoing facts and to comply with the provisions of Adm. Circular
No. 04-94 of the Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

____ day of February, 2012, in the City of Iloilo.
Section 6. Contents. — Every pleading stating a party’s claims or
defenses shall, in addition to those mandated by Section 2, Rule 7, state
the following:

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

(b) Summary of the witnesses’ intended testimonies, provided that the

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

(c) Documentary and object evidence in support of the allegations

contained in the pleading. (n)

What shall be stated in every pleading?

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

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

(a) Paragraphs. — The allegations in the body of a pleading shall

be divided into paragraphs so numbered to be readily identified,
each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A
paragraph may be referred to by its number in all succeeding
pleadings. (3a)

(b) Headings. — When two or more causes of action are joined

the statement of the first shall be prefaced by the words "first
cause of action,'' of the second by "second cause of action", and
so on for the others.

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

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

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

In addition, it shall also state the following:

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

(b) Summary of the witnesses’ intended testimonies, provided that the

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

(c) Documentary and object evidence in support of the allegations

contained in the pleading. (n)

(D) If the cause of action or defense relied on is based on LAW, the

pertinent provisions thereof and their applicability to him or her shall
be clearly and concisely stated. (2nd par. Section 1, Rule 8)

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 RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Section 1. In general. – Every pleading shall contain a methodical and
logical form, a plain, concise and direct statement of the ultimate
facts, INCLUDING THE EVIDENCE on which the party pleading relies
for his claim or defense, as the case may be, omitting the statement of
mere evidentiary facts.

216
 If A CAUSE OF ACTION or defense relied on is based on law, the
pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated.
What does a pleading should contain?
Every pleading shall contain a methodical and logical form the
following:
1. A plain, concise and direct statement of the ultimate facts,
INCLUDING THE EVIDENCE on which the party pleading relies
for his claim or defense, as the case may be;
2. Omitting the statement of mere evidentiary facts. (No longer
true pursuant to the current rules)
3. If a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and
concisely stated.
Manner of making allegations
1. The pleading asserting the claim or the cause of action must
contain only the ultimate facts. These facts must be stated in
plain, concise, methodical and logical form. Evidentiary fact must
be omitted. (sec. 1, Rule 8) (No longer true per present rules)

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

Section. 2. Alternative causes of action or defenses. – A party may set

forth two or more statements of a claim or defense alternatively or
217
hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made
in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements.
What is the rule in case a party will plead two or more statement of
claim or defences?
A party may set forth in his pleading the following:
1. Two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in
separate causes of action or defense.

2. When two or more statements are made in the alternative and

one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or
more of the alternative statements.
PLEADING ALTERNATIVE CAUSES OF ACTIONS OR DEFENSES
Under Sec. 2 of Rule 8, a party may set forth two or more
statements of a claim or defense, alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or
defense.
“The relevant rule provides: “when two or more statements are
made in the alternatives and one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency
of one or more of the alternative statements.”
The subject provision recognizes that the liability of the defendant
may possibly be based on either one of two or more possible causes of

218
action. The plaintiff may, for example, believe that the liability of the
carrier may be based either on a breach of contract of carriage or on a
quasi-delict, but he may not be certain which of the causes of action
would squarely fit the set of facts alleged in the complaint.
The landmark case of La Mallorca v. Court of Appeals, 17 SCRA
739, illustrates this rule particularly well. Here, the plaintiffs were
allowed to sue based upon a quasi-delict theory and in the alternative,
upon a breach of contract, where the death of their child occurred
when they were no longer on board the bus of the common carrier but
at the time the father was in the process of retrieving the family’s
personal belongings from the bus.
The said rule authorizes not only alternative causes of action. The
rule likewise permits alternative defenses. Under the said rule, a party
may set forth two or more defenses alternatively or hypothetically.
Thus a defendant may assert the defense of payment of the debt or the
prescription of said debt or illegality of contract.
Examples:
1. For instance, the plaintiff insurance company, which paid for the
loss of the goods insured, may sue in the alternative the shipping
company that transported the goods and the warehouse company
that stored the goods if the plaintiff is uncertain which between
the defendants is responsible for the loss.

2. The Court allowed the alternative suit against the arrastre

operator and the owner and agents of the carrying vessels filed by
the insurance company which paid the consignee for the lost
merchandise.

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Section. 3. Conditions Precedent. – In any pleading, a general
averment of the performance or occurrence of all conditions
precedent shall be sufficient.
What is the rule in case of allegation of condition precedent in the
pleading?
In any pleading a general averment of the performance or
occurrence of all conditions precedent shall be sufficient.
Common usage refers to conditions precedent as matters which
must be complied with before a cause of action arises. When a claim is
subject to a condition precedent, the compliance of the same must be
alleged in the pleading.
Examples:
1. A tender of payment is required before making a consignation.

2. Exhaustion of administrative remedies is required in certain cases

before resorting to judicial action.

3. Prior resort to barangay conciliation proceedings is necessary in

certain cases.

4. Earnest efforts toward a compromise must be undertaken when

the suit is between members of the same family and if no efforts
were in fact made, the case must be dismissed.

5. Arbitration may be a condition precedent when the contract

between the parties provides for arbitration first before recourse
to judicial remedies.

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Effect of failure to comply with a condition precedent.
The failure to comply with a condition precedent is an
independent ground for a motion to dismiss: that a condition precedent
for filing the claim has not been complied with. (Modified by the
present rule)
Section. 4. Capacity. – Facts showing the capacity of a party to sue or
be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence of any party or
capacity of any party to sue or be sued in a representative capacity,
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader’s knowledge.
What is the rule in case of allegation of capacity of a party in a
pleading?
A party desiring to allege facts or raise as an issue the capacity of
the party to the action must:
1. Facts showing the capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a representative
capacity or the legal existence of an organized association of
persons that is made a party, must be averred.

2. A party desiring to raise an issue as to the legal existence of any

party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which
shall include such supporting particulars as are peculiarly
within the pleader’s knowledge.

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Section. 5. Fraud, mistake, condition of mind. – In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity. Malice, intent, knowledge or other
condition of the mind of a person may be averred generally.
What are the manners of alleging fraud, mistake, condition of mind in a
pleading?
In all averments of fraud or mistake, or condition of mind it must
be averred by:
1. Stating the circumstances constituting fraud or mistake must
be stated with particularity.

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

person may be averred generally.
This provision clearly suggests that it is not enough therefore, for
the complaint to allege that he was defrauded by the defendant. It is a
requirement that the complaint must state with particularity the
fraudulent acts of the adverse party. These particulars which would
necessarily include specific acts of fraud committed against the plaintiff
would help apprise the judge of the kind of fraud involved in the
complaint.

Example:
The misrepresentation of the defendant to the plaintiff that he
was the actual and true owner of a car subject of sale, and which the
plaintiff acted on such false representation, constitutes fraud which
must be stated with particularity in the complaint.
Additional Example:

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 1. The parties entered into a contract without the knowledge of the
law on contract like a minor is not competent to enter into
without the assistance of his parents or guardian, said mistake
must be averred in the complaint with particularity.

2. The party entered erroneously into an agreement without

knowing that the same must be reduced into writing, the said
mistake must be stated with particularity in the complaint.
However, with respect to MALICE, INTENT, KNOWLEDGE or
OTHER CONDITION OF THE MIND OF A PERSON, they may be averred
generally.
So it is enough the party may allege in the pleading that he or she
acted without Malice or Intent or Knowledge without stating them with
particularity. The assertion, therefore, that the defendant entered into
an agreement without Intent to defraud the plaintiff is a sufficient
allegation in the answer. In the same way, the declaration by the
plaintiff that in the execution of the contract, he was without
Knowledge that the defendant entered into said contract without legal
capacity, is sufficient allegation in the complaint.
Section. 6. Judgment. – In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it. AN
AUTHENTICATED COPY OF THE JUDGMENT OR DECISION SHALL BE
ATTACHED TO THE PLEADING.
What is the manner of making allegation of a judgment in the pleading?
In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer in the manner:

223
 1. By sufficiently averring the judgment or decision without
setting forth matter showing jurisdiction to render it, and

2. An authenticated copy of the judgment or decision shall be

attached to the pleading.

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

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

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 2. The original or a copy thereof shall be attached to the pleading
as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the
pleading.
PLEADING ACTIONABLE DOCUMENT (BAR 1991; 2004; 2005)
A substantial number of cases reaching the courts show that the
plaintiff’s cause of action or the defendant’s defense is based upon a
written instrument or document. The document used in such cases is
what is commonly termed as “actionable document” which in current
usage is referred to as the document relied upon by either the plaintiff
and the defendant as when the plaintiff sues on a written contract of
lease.

For example:
1. In an action for collection of a sum of money, the actionable
document would be the promissory note executed by the
defendant in favor of the plaintiff.

2. In an action for foreclosure of mortgage, the actionable document

would be the deed of mortgage.

3. On the other hand, if the defendant alleges that the debt has
been paid, the receipt of payment issued by the plaintiff would be
the actionable document.

Whenever an actionable document is the basis of a pleading, the

rule specifically directs the pleader to (a) set forth in the pleading the
substance of the instrument or the document, and attach the original
or the copy of the document to the pleading as an exhibit and which

225
shall form part of the pleading; or (b) with like effect, to set forth in the
pleading said copy of the instrument or document (Sec. 7, Rule 8, Rules
of Court).

HOW MAY AN ACTIONABLE DOCUMENT BE PLEADED AS A BASIS FOR

THE CAUSE OF ACTION OF THE PLAINTIFF OR DEFENSE?

Whenever an action or defense is based upon a written

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

A mere specific denial of the actionable document is insufficient.

The denial must be coupled with an oath. In current usage, this means
that the denial must be verified. The absence of an oath will result in
the implied admission of the due execution and genuineness of the
document.

When an oath is not required (BAR 1987)

The requirement of a specific denial under oath will not apply in
either of the following cases:
a. When the adverse party does not appear to be a party to the
instrument, or

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 b. When compliance with an order for an inspection of the original
document is refused.

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

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genuineness and due execution of the instrument and are not
therefore, barred.

It is submitted that prescription, release, waiver, statute of frauds,

estoppels, former recovery or discharge in bankruptcy are not likewise
barred, these defenses having no direct relationship to the concepts of
“genuineness and due execution.”

BAR 2016
        On the basis of an alleged promissory note executed by Harold in
favor of Ramon, the latter filed a complaint for P950,000.00 against the
former in the RTC of Davao City. In an unverified answer, Harold
specifically denied the genuineness of the promissory note.
 
            During the trial, Harold sought to offer the testimonies of the
following: (1) the testimony of an NBI handwriting expert to prove the
forgery of his signature; and (2) the testimony of a credible witness to
prove that if ever Harold had executed the note in favor of Ramon, the
same was not supported by a consideration.
 
            May Ramon validly object to the proposed testimonies? Give a
brief explanation of your answer.

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

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            Under Section 8, Rule 8 of the Rules of Court, the genuineness
and due execution of an actionable document is deemed admitted by
the adverse party if he fails to specifically deny such genuineness and
due execution.
 
            Here the genuineness and due execution of the promissory note,
which is an actionable document, was impliedly admitted by Harold
when he failed to deny the same under oath, his answer being
unverified.  Hence Harold is precluded from setting up the defense of
forgery and thus Ramon may object to the proposed testimony seeking
to prove forgery.
 
            2)  Ramon may not validly object to the proposed testimony
showing that the note was not supported by a consideration.
 
            The Supreme Court has held that an implied admission under
Section 8, Rule 8 does not preclude the adverse party from introducing
evidence that the actionable document was not supported by a
consideration.  The reason is that such evidence is not inconsistent with
the implied admission of genuineness and due execution. [Acabal v.
Acabal, 31 March 2005]
 
            The fact that the defense of lack of consideration is inconsistent
with Harold’s defense of forgery is also not objectionable.
 
            Under the Rules of Civil Procedure, a party may set forth two or
more statements of defense alternatively or hypothetically. [S2 R8]

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Section. 9. Official document or act. – In pleading an official document
or official act, it is sufficient to aver that the document was issued or
the act done in compliance with law.
How to make an averment of an official act or document in a pleading?
In pleading an official document or official act, it is sufficient to
aver:
1. That the document was issued or
2. The act done in compliance with law.
Example:
The mere assertion that the Marriage Certificate attached to the
complaint or answer was issued by the Local Civil Registrar is
considered sufficient averment. In like manner, in pleading that a copy
of the Resolution of the City Prosecutor attached to the complaint or
answer, was ssued by the said office is also sufficient averment.
Section. 10. Specific denial. – A defendant must specify each material
allegation of fact the truth of which he OR SHE does not admit and,
whenever practicable, shall set forth the substance of the matters
upon which he OR SHE relies to support his denial. Where a defendant
desires to deny only a part of an averment, she shall so specify so
much of it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information sufficient to
form a belief as to the truth of a material avernment made in the
complaint, he OR SHE shall so state, and this shall have the effect of a
denial.
KINDS OF SPECIFIC DENIAL (BAR 2011)
There are three (3) types of specific denials mentioned in Sec. 10
of Rule 8 of the Rules of Court, namely:

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

Example:

The defendant may assert in his Answer that he specifically denies

the allegation found in paragraph (b) of the plaintiff’s complaint and
assert the truth of the matter, is considered an Absolute Denial.

(b) Another type of a specific denial is where the defendant

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

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

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Example:

The statement of the defendant in his answer that he has no

knowledge or information sufficient to form a belief as to the thetruth
of the allegation found in paragraph (F) of the plaintiff’s complaint is in
the realm of Denial by Disavowal of knowledge.
Section. 11. Allegations not specifically denied deemed admitted. –
Material AVERMENTS IN A PLEADING ASSERTING A CLAIM OR CLAIMS,
other than those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied.
What is the effect of the allegation in the pleading was not specifically
denied?
Material averment in the complaint, other than those as to the
amount of unliquidated damages, if not specifically denied shall have
the effect of:
1. It shall be deemed admitted when not specifically denied.

Examples:
(a)Failure to specifically deny the existence of a purchase order
under oath, the existence of said purchase order shall be
deemed admitted.

(b) The failure of the defedangt to deny the non payment of his
financial obligation to the plaintiff shall be tantamount to an
admission.

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 2. Allegations of usury in a complaint to recover usurious interest
are deemed admitted if not denied under oath.

Section 12. Affirmative defenses. — (a) A defendant shall raise his or her
affirmative defenses in his or her answer, which shall be limited to the
reasons set forth under Section 5(b), Rule 6, and the following grounds:

1. That the court has no jurisdiction over the person of the

defending party;

2.That venue is improperly laid;

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

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

and

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

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

opportunity shall constitute a waiver thereof.

© The court shall motu proprio resolves the above affirmative

defences within thirty (30) calendar days from the filing of the
answer.

(d)As to the other affirmative defences under the first paragraph

of Section 5 (b), Rule 6, the court may conduct a summary
hearing within fifteen (15) calendar days from the filing of the
answer. Such affirmative defences shall be resolved by the court
within thirty (30) calendar days from the termination of the
summary hearing.
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 €. Affirmative defences, if denied, shall not be the subject of a
motion for reconsideration, or petition for certiorari, prohibition
or mandamus, but may be among the matters to be raised on
appeal after a judgment on the merits.

Under Section 12, Rule 15 (Motions), Motion to hear affirmative

defences is one of the prohibited motions. Accordingly, under the
present rules, affirmative defences raised by the defendant in his Answer
shall no longer be the subject of a “Motion to hear Affirmative
Defenses.”
Rather, as can be gleaned from the above- provision, the following
affirmative defences does NOT require a summary hearing, but must be
MOTU PROPRIO resolved by the court within thirty (30) calendar days
from the filing of the anwer, to wit:
1. That the court has no jurisdiction over the person of the
defending party;

2.That venue is improperly laid;

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

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

and

5. That a condition precedent for filing the claim has not been
complied with.
On the other hand, the following affirmative defences (by way of
new matters) which are raised by the defendant in his answer may be the
subject of a summary hearing within fifteen (15) calendar days from the
filing of the answer, and shall be resolved by the court within thirty (30)

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calendar days from the termination of the summary hearing, to wit (Sec
5 [b], Rule 6).
“An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery
by him OR HER.

The affirmative defenses include (1) FRAUD, (2) STATUTE OF

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

Section. 13. Striking out of pleading or matter contained therein. –

Upon motion made by a party before responding to a pleading or, if
no responsive pleading is permitted by these Rules, upon motion
made by a party within twenty (20) CALENDAR days after the service
of the pleading upon him OR HER, or upon the court’s own initiative
at any time, the court may order any pleading to be stricken out or
that any sham or false, redundant, immaterial, impertinent, or
scandalous matter be stricken out therefrom.
What is the rule in case of striking out of the pleading or matters
contained therein?
Upon motion made by a party before responding to a pleading or,
if no responsive pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the service of the
pleading upon him, or upon the court’s own initiative at any time, the
court:
1. May order any pleading to be stricken out or

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 2. That any sham or false, redundant, immaterial, impertinent, or
scandalous matter be stricken out therefrom.
When to file Motion to Strike?
1. Upon motion made by a party before responding to a pleading or,
2. If no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) CALENDAR days after
the service of the pleading upon him OR HER, or
3. Upon the court’s own initiative at any time, the court may order
any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be
stricken out therefrom.

RULE 9
EFFECT OR FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. – Defenses and
objections not pleaded either in a MOTION TO DISMISS or in the
ANSWER are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a

237
prior judgment or by statute of limitations, the court shall dismiss the
claim.
Consequences if defences or objections are not pleaded?
1. Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived.
Examples: Negative defences and Affirmative Defenses ( which are
grlunds for a motion to dismiss) must be pleaded either in a Motion to
Dismiss or as Negative or Affirmative Defenses in the Answer.
2. However, when it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall
dismiss the claim.
What are the defences and objections not deemed waived even if not
raised?
Jurisprudence says that the following grounds are not deemed
waived even if not alleged in answer or a motion to dismiss, to wit:
1. The court has no jurisdiction over the subject matter;

2. That there is another action pending between the same parties

for the cause cause; or

3. That the action is barred by prior judgment; or

4. That the action is barred by statute of limitations.

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 Under the present rule, the only grounds that may be raised in a
Motion to Dismiss are: (1) That the court has no jurisdiction over the
subject matter of the claim; (2) That there is another action pending
between the same parties for the same cause (lites pendencia); and (3)
That the cause of action is barred by a prior judgment or (4) By the
Statute of Limitations. (Rule 15, Section 12 of the Rules of Civil
Procedure)
On the other hand, the defendant may raise in his Answer both
Negative and Affirmative Defenses, which may include the afore-
mentioned grounds for Motion to Dismiss.
Please take note that the ground of “Lack of jurisdiction over the
subject matter” may be raised at anytime during the trial and even for
the first on appeal.
However, when it appears from the pleading or the evidence on
record that any of the above defences or objections exist, the court
shall dismiss the claim (Sec. 1, Rule). This is interpreted to mean that
the court shall motu proprio dismiss the case when any of the defences
or objections are evident on the pleading or the evidence on record.

Exception to the rule that defences and objections not pleaded deemed
waived

The averments that are not deemed admitted by the failure to

deny the same are the immaterial allegations and incorrect conclusions
drawn from the facts set out in the complaint. (GSIS vs. Dinnah
Villaviza, G.R. No. 180291, July 27, 2010)

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Section 2. Compulsory counterclaim, or cross-claim, not set-up barred.
– A compulsory counterclaim or a cross claim, not set up shall be
barred.
What is the effect if a compulsory counter-claim or cross-claim is not
set up it is barred?
A compulsory counterclaim or a cross claim, not set up shall be
barred.
Generally, compulsory counterclaim and cross-claims are set up in
the defending party’s answer. But this is subject to some well-defined
exceptions such as (1) counter-claim or cross-claim arising after the
filing of the answer which may be presented as a counterclaim or cross
claim by supplemental pleading before judgment; and (2) omitted
counter-claim or cross claim, which may be set up by way of
amendment before judgment. (See: Sections 9 and 10, Rule 11 of the
Rules of Court)
Section 3. Default, declaration of. – If the defending party fails to
answer within the time allowed therefor, the court shall, upon motion
of the claiming party with notice to the defending party, and proof of
such failure, declare the defending party in default. Thereupon, the
court shall proceed to render judgment granting the claimant such
relief as his OR HER pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
Ground for declaration of default
There is only one ground for the court to declare a defending
party in default and that is the non filing of answer within the
reglementary period. Without stating the obvious, the failure,
therefore, of the defendant to file his/ her pre-trial brief or his failure to

240
appear during the pre-trial conference is not a ground to declare him in
default.
Nature of default
Default is a procedural concept that occurs when the defending
party fails to file his answer within the reglementary period (BAR 1999).
The failure of the defendant to appear at the pre-trial while a cause for
the court to order the plaintiff to present his evidence ex parte and for
the court to render judgment on the basis thereof, is not a ground for a
default.

The defendant’s non-appearance in the hearing and the failure to

adduce evidence does not constitute default when an answer has been
filed within the reglementary period.

It is error to declare a defendant in default where an answer has

already been filed (Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451)

What is a default order?

A default order is issued by the court, on the plaintiff’s motion

and at the start of the proceedings, for failure of the defendant to file
his responsive pleading seasonably.

What is a judgment by default?

A judgment by default is a judgment rendered by the court on the
presentation of the plaintiff’s evidence ex-parte after the defendant has
been declared in default, and the award shall not exceed the amount or
be different from the kind of prayer that the plaintiff complained as the
facts and evidence so warrant.

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REQUISITES BEFORE A PARTY MAY BE DECLARED IN DEFAULT (BAR
1999) or When can the defendant be declared in default?
The following are the requisites before a party may be declared in
default:
a. There must be a motion to declare the defending party in
default filed by the claiming party;

b. Summons has been validly and previously served upon him;

c. The defending party must have failed to file his answer within
the reglementary period or within the period fixed by the
court;

d. There must be proof of the failure the answer;

e. The defending party must be notified of the motion to declare

him in default;

f. There must be a hearing set for the motion to declare the

defendant in default.

The present rule expressly requires that the motion of the

claiming party should be with notice to the defending party. The
purpose of a notice of a motion is to avoid surprises on the opposite
party and to give him time to study and meet the arguments. The
notice of a motion is required when the party has the right to resist the
relief sought by the motion and principles of natural justice demand
that his right be not affected without an opportunity to be heard.

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No motu proprio declaration of default
The court has no authority to motu proprio declare the defendant
in default. A motion to declare the defending party must be filed by the
claiming party before a declaration of default is made by the court.

(a)Effect of order of default. – A party in default shall be entitled to

notice of subsequent proceedings but SHALL not to take part in the
trial.

Effect of a declaration/order of default.

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

2. While the defendant can no longer take part in the trial, he is

nevertheless entitled to notices of subsequent proceedings. It is
submitted that he may participate in the trial, not as a party but
as a witness.

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

of the plaintiff’s claims.

(b)Relief from order of default. – a party declared in default may at

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

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Remedies of a defending party declared in default (BAR 1998)
(a)Remedy after notice of order and before judgment. – A party
declared in default may, at any time after notice thereof and
before judgment, file a motion under oath to set aside the order
of default and properly show that (a) the failure to answer was
due to fraud, accident, mistake, or excusable negligence (FAMEN),
and that (b) he has a meritorious defense, i.e., there must be an
affidavit of merit (Sec. 3[b], Rule 9)

(b) Remedy after judgment and before judgment becomes final

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

(c)Remedy after the judgment becomes final and executor. – The

defendant may file a Petition for Relief from Judgment under Rule
38.

(d) When the defendant has however, been wrongly or

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

©Effect of partial default. – When a pleading asserting a claim states a

common cause of action against several defending parties, some of
whom answer and the others fail to do so, the court shall try the case
against all upon the answers thus filed and render judgment upon the
evidence presented.

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Effect of partial default (BAR 2011)
When a pleading asserts a claim states a common cause of action
against several defending parties and some file and serve their answers
but the others do not, the court shall try the case against all the
defending parties based on the answers filed and render judgment
upon the evidence presented where the claim states a common cause
of action against them (Sec. 3 ©, Rule 9, Rules of Court). In other
words, the court cannot declare in default the non- answering
defendants but rather should try and hear the case against all the
defendants including the non-answering defendants based on the
answer filed by the answering defendant/s.
(d)Extent of relief to be awarded. – a judgment rendered against a
party in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages.

Extent of relief in a judgment by default.

If the complaint seeks to recover Php1 million but the evidence of
the plaintiff shows a right to recover Php1.5 million, the court has no
authority to grant the latter amount despite the evidence. This is
because under the Rules. “A judgment rendered against a party in
default shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages. (Sec. [d], Rule 9).
(e)Where no default allowed. – If the defending party in an action for
annulment or declaration of marriage nullity of marriage or for legal
separation fails to answer, the court shall order the SOLICITOR
GENERAL OR HIS OR HER DEPUTIZED PUBLIC PROSECUTOR,
investigate whether or not a collusion between the parties exists, and

245
if there is no collusion, to intervene for the State in order to see to it
that the evidence submitted is not fabricated.

Cases where a declaration/order of default cannot be made.

1. Default is not allowed in the following actions:

(a)Annulment of marriage;

(b) Declaration of nullity of marriage, and

(c)Legal separation.

2. If no answer is filed in any of the above actions, the court shall

order the prosecuting attorney to investigate whether or not
collusion exists between the parties. If there is no collusion, the
court shall order THE SOLICITOR GENERAL OR HIS OR HER
DEPUTIZED PUBLIC PROSECUTOR, to investigate whether or not a
collusion between the parties ecists, and if there is no collusion,
to intervene for the State in order to see to it that the evidence
submitted is not fabricated (Sec. 3 [e], Rule 9.)

Failure to file response under the Rule of Procedure for Small Claims
Cases
A motion to declare the defendant in default is a prohibited
motion under Sec. 14 (h) of the Rule of Procedure for Small Claims
Cases. Should the defendant fail to file his response within the required
period, and likewise fail to appear at the date set for hearing, the court
shall render judgment on the same day as warranted by the facts (Sec.
12)

246
 Should the defendant fail to file his response within the required
period but appears at the date set for hearing, the court shall ascertain
what defense he has to offer and proceed to hear, mediate or
adjudicate the case on the same day as if a response has been filed.
Failure to file an Answer under the 1991 Revised Rules on Summary
Procedure.
A motion to declare the defendant in default is a prohibited
motion under Sec. 19 (h) of the 1991 Revised Rules on Summary
Procedure. (BAR 1988). Under the Rule on Summary Procedure, the
defendant who fails to file an answer within the reglementary period is
not supposed to be declared in default. Instead, the court motu
proprio, or on motion of the plaintiff, shall render judgment (not to
declare the defendant in default) as may be warranted by the facts
alleged in the complaint and limited to what is prayed for. This
represents a principal distinction between default in regular civil
proceedings and the rule on summary procedure. (BAR 1988).
Action of the court after the declaration/order of default.
1. Under the rules, when a party is declared in default, the court
may do either of two things:

(a)To proceed to render judgment granting the claimant such

relief as his pleading may warrant; or

(b) To require the claimant to submit to his evidence ex parte.

In this case, the court may delegate the reception of evidence
before the Branch Clerk of Court.

What is the remedy in case of denial of Motion to Lift Order of Default?

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 It is settled rule that in case of denial of the Motion to Lift Order
of Default, the defendant-movant may file a Motion for
Reconsideration of the order of the denial of the motion to lift order of
default. In case of denial of the motion for reconsideration, then
Petition for Certiorari under Rule 65 is available on the ground of grave
abuse of discretion amounting to lack or in excess of jurisdiction since
the order is interlocutory in character.
Current judicial trend on defaults.
The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default. (BAR 1999; BAR
2000; BAR 1983).
Sample form:
MOTION TO DECLARE DEFENDANT IN DEFAULT
COMES NOW, the plaintiff, through the undersigned counsel and
unto this Honorable Court, most avers:
1. That the summons in the above – entitled case was dule served
on January 15, 2012 to the defendant;

2. That notwithstanding the lapse of more than fifteen (15) days,

defendant failed to file his answer or responsive pleadings.
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Court that the defendant be declared in de fault,
and the plaintiff be allowed to present his evidence ex-parte.
Other reliefs and remedies as may be deemed just and equitable
under the premises are likewise prayed for.

248
 MOTION TO LIFT ORDER OF DEFAULT
COMES NOW, the defendant, through the undersigned
counsel and unto this Honorable Court, most respectfully avers:
1. That the defendant received a copy of the Summons
relative to the above-entitled case;
2. That on February ____, 2012, plaintiff went to the house
of the defendant and informed him that he will no longer
continue with the prosecution of the case, and told him
to just ignore the complaint he received, and not to
attend any hearing of the said case;
3. That through the representation of the plaintiff,
defendant did not file any answer anymore, and just
ignore the notices he received, only to be surprised that
he wad declared in default upon receipt of the Order of
the court.
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Court that the Order of Default be
set aside/lifeted based on the above reasons.
Other reliefs and remedies as may be deemed just and
equitable under the premises are likewise prayed for.

MOTION TO SET ASIDE JUDGMENT BY DEFAULT

COMES NOW, the defendant, through the undersigned
counsel and unto this Honorable Court, most respectfully moves:
1. That defendant received a copy of the Judgment by
Default relative to the above-entitled case;

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 2. That the said judgment by default was obtained by the
plaintiff through FRAUD, since the true facts of the case
was that on February___, 2012, plaintiff went to the
house of the defendant and informed him that he will no
longer continue with the prosecution of the case, and just
ignore the complaint he received, and not to attend any
hearing of the said case;
3. That through the representation of the plaintiff,
defendant did not file any answer anymore, and just
ignored the notices he received, only to be surprised that
he was declared in default upon receipt of the Order of
the court, and subsequently received a Judgment by
Default.

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court that the Judgment by
Default be set aside and reconsidered, and to re open the
case, and to allow the defendant to present his evidence
based on the above reasons.

Other reliefs and remedies as may be deemed just and

equitable under the premises are likewise prayed for.

AFFIDAVIT OF MERIT
REPUBLIC OF THE PHILIPPINES )
IN THE CITY OF ILOILO ) S.S.

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 I, Mr Juan Dela Cruz, of legal age, Filipino, married, and a
resident of Barangay San Roque, Jaro, Iloilo City, Philippines, after
having duly sworn to in accordance with law do hereby depose and
say:
1. That I am the defendantin the above-entitled case;
2. That on February __, 2012, I received a copy of the
Summons relative to the above-entitled case;
3. That on February _____, 2012, plaintiff went to our house
and informed me that he will no longer continue with the
prosecution of the case, and just to ignore the complaint I
will receive, and not to attend any hearing of the said
case;
4. That through the representation of the plaintiff, I did not
file any answer anymore, and just ignored the notices I
received, only to be surprised that I was declared in
default upon receipt of the Order of the Court;
5. That said plaintiff is guilty of fraud and prevented me
from defeinding myself in thre above case, and to submit
the appropriate pleadings and evidence;
6. That I have a good and meritorious defense against the
plaintiff, and have already paid all my obligations to him;
7. That I am executing this affidavit to attest to the truth of
the foregoing statements, and for whatever legal purpose
it may serve.

In witness whereof, I have hereunto affixed my signature

this _____ day of February, 2012, in the City of Iloilo.

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 RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Section 1. – Amendments in general. – Pleadings may be amended by
adding or striking out an allegation or the name of any party, or by

252
correcting a mistake in the name of a party or a mistake or
inadequate allegation or description in any other respect, so that the
actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive
manner.
Amendment defined – is an act of adding, changing, substituting, or
omitting something from a pleading, or instrument.
Amendment is the correction of an error committed in any process,
pleading, or proceedings in law or in equity, and which is done either as
of course, or by the consent of parties, or upon motion to the court in
which the proceeding is pending.
Purpose of Rule allowing amendments
Amendments to pleading are generally allowed and favoured in
furtherance of justice in order that every case may be determined on its
real facts and in order to speed up the trial of cases or to prevent
circuitry of action and prevent unnecessary expenses (PNB v. Court of
Appeals, No.L – 45770, March 30, 1988). They are allowed to be able to
speedily determine the actual merits of the controversy and
inexpensive manner.
The court should be liberal in allowing amendments to pleadings
to avoid multiplicity of suits and in order that the real controversies
between the parties are presented, their rights determined and the
case decided on the merits without unnecessary delay (Refugia v. Alejo,
334 SCRA 230)
How is amendment being done?
Pleadings may be amended by:
(a) Adding an allegation of a party,

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 (b) Adding the name of a party;
(c) Striking out an allegation of a party,
(d) Striking out the name of a party,
(e) Correcting a mistake in the name of a party, or
(f) Correcting a mistaken or inadequate allegation or description
in any other respect.
Kinds of amendment:
1. Formal amendment
2. Substantial amendment
3. Amendment as a matter of right
4. Amendment as a matter of discretion
5. Amendment to confer jurisdiction; and
6. Amendment to conform to evidence.

Prescription of action tolled upon the submission of the amended

pleading.
The settled rule is that the filing of an amended pleading does not
retroact to the date of the filing of the original; hence, the statute of
limitation runs until the submission of the amendment. It is true that,
as an exception, this Court has held that an amendment which merely
supplements and amplifies facts originally alleged in the complaint
relates back to the date of the commencement of the action and is not
barred by the statue of limitations which expired after the service of
the original complaint. The exception, however, would not apply to the
party impleaded for the first time in the amended complaint. (Wallem,
Philippines Shipping Inc., vs. S.R. Farms Inc., G.R. No. 161849, July 9,
2010.)

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 An amended complaint that changes the plaintiff’s cause of action
is technically a new complaint, consequently, the action is deemed filed
on the date of the filing of the amended complaint not on the date of
the filing of the original version. Thus, the statute of limitation resumes
its run until it is arrested by the filing of the amended pleading.
(Spouses Vicente Dionisio and Anita Dionisio vs. Wilfredo Linsangan,
G.R. No. 178159, March 2, 2011).
It has been held that amendments in pleadings do not necessarily
expunge those previously filed; That amendments made, more so when
ordered by the court, relate back to the date of the original complaint,
and the claim asserted in the amended pleading arose out of the same
conduct, transaction or occurrence, and that amendment presupposes
the existence of something to be amended, and therefore, the tolling of
the period should relate back to the filing of the pleading sought to be
amended (Philippines Independent Church vs. Mateo, L – 14793, April
28, 1961)
In the case of Pangasinan Transportation Co. vs. Philippine
Farming Co, the Supreme Court held that where the original complaint
states a cause of action but does it imperfectly and afterwards an
amended complaint is filed correcting the defect, the plea of
priscription will relate to the time of the filing of the original complaint.
“It follows that when the amended complaint does not introduce
the new issues, causes of action, or demands, the suit is deemed to
have commenced on the date the original complaint was filed, not on
the date of the filing of the amended complaint. In other words, for
demands already included in the original complaint, the suit is deemed
to have commenced upon the filing of such original complaint. In short,
for purposes of determining the commencement of a suit, the original
complaint is deemed abandoned and superseded by the amended

255
complaint only if the amended complaint introduces a new or different
cause of action or demand” (Philip Morris Philippines Manufacturing,
Inc. vs. Hon. Winlove Dumayas, CA-G.R. SP No. 93353)
Section. 2. Amendments as a matter of right. – A party may amend his
pleading once as matter of right at any time before a responsive
pleading is served or, in the case of a reply at any time within ten (10)
CALENDAR days after it is served.
How can an amendment as a matter of right be made?
A party may amend his pleading once as matter of right at any
time
1. Before a responsive pleading is served or,

2. In the case of a reply at any time within ten (10) CALENDAR

days after it is served.
Amendment as a matter of right
Amendent is a matter of right when made at any time before a
responsive pleading is served or, in case of a reply, at any time within
ten (10) CALENDAR days after it is served. Formal and substantial
amendments to a pleading may be made at anytime before a
responsive pleading has been filed. Such amendment is a matter of
right. Thereafter, and during the trial, amendments may only be done
with the permission of the court (Ng v. Soco, G.R. No. 149132, May 9,
2002)
A plaintiff has the right to amend his complaint ONCE at any time
before a responsive pleading is served by the other party or in case of a
reply to which there is no responsive pleading, at any time within ten
(10) CALENDAR days after it is served. Thus, before an answer is served
on the plaintiff, the latter may amend his complaint as a matter of right.

256
The defendant may also amend his ANSWER, also as a matter of right,
before a reply is served upon him.
The right to amend a pleading as a matter of right may, according
to the Rules, be exercised only ONCE (Sec. 2, Rule 10). Hence, even if no
responsive pleading has yet been served, if the amendment is
subsequent to a previous amendment made as a matter of right, the
subsequent amendment must be with leave of court.
Before the service of a responsive pleading, a party has the
absolute right to amend his pleading, regardless of whether a new
cause of action or change in theory is introduced. Since a motion to
dismiss is not a responsive pleading, a plaintiff may file an amended
complaint even after the original complaint was ordered dismissed,
provided the order of dismissal is not yet final (Bautista v. Maya-Maya
Cottages, Inc., 476 SCRA 416).
Since a motion is not a pleading, the filing of a motion to dismiss
by the defending party will not prevent the claiming party from
exercising his right to amend his pleading before a responsive pleading
has been filed (Soledad v. Mamangun, 8 SCRA 110).
Where some but not all of the defendants have answered,
plaintiffs may amend their complaint once as a matter of right in
respect to claims asserted soley against the non-answering defendants
but not as to claims asserted against the other defendants (Siasoco v.
Court of Appeals, 303 SCRA 186).
BAR 1979
“F” sues his brother, “G” to recover ownership of a parcel of land
but the latter, within the period for pleading, moves to dismiss based
on two grounds, to wit: first, the suit being between members of the
same family, the complaint fails to aver that earnst efforts towards a

257
compromise have been made, and second, the action is barred by
extinctive prescription.
Pending resolution of the motion to dismiss, “F” serves notice to
take “G’s” deposition, which, the latter opposes, claiming that at this
stage of the proceedings no deposition can be obtained without leave
of court.
Meanwhile, obviously to meet “G,”s objections in the motion to
dismiss still unresolved, “F” files an amended complaint seeking this
time the partition of the land between him and his brother and alleging
that earnest efforts at amicable settlement have been exerted and have
failed.
If you were the trial judge, would you admit “F”s amended
complaint and deny “G”s motion to dismiss despite the latter’s
contention that the amendment would result in a radical change of the
cause of action or theory of the case? Reason.
Suggested answer
If I were the judge, I would admit the amended complaint. The
amendment is a matter of right. Under the Rules, a party may amend
his pleading once as a matter of right at any time before a responsive
pleading is served. Since motion is not a pleading, the filing of a motion
to dismiss by the defending party will not prevent the claiming party
from exercising his right to amend his pleading before a responsive
pleading has been filed.
What is the remedy in case of denial of the motion to amend as a
matter of right?
The proper remedy in case of denial of the motion to amend as a
matter of right is to file a petition for mandamus under Sec. 3, Rule 65,

258
since it is a ministerial duty on the part of the court to allow
amendment on the pleading before the filing of a responsive pleading.
Applicability of mandamus
The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. This error is correctible
by mandamus because the trial court’s duty to admit an amended
complaint made as a matter of right is purely ministerial (Alpine
Lending Investors v. Corpuz, (508 SCRA 45)
A motion to dismiss is not a responsive pleading (BAR 1979; BAR 2005)
1. If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the
motion to dismiss. Such a motion is not a responsive pleading
and its filing does not preclude the exercise of the plaintiff’s
right to amend his complaint.

2. Even if the motion to dismiss is granted by the court, the

plaintiff may still amend his complaint as a matter of right
before the dismissal becomes final as long as no answer has yet
been served. In the words of the Court, the plaintiff “may file
an amended complaint even after the original complaint was
ordered dismissed, provided that the order of dismissal is not
yet final.”

Sample form:
MOTION TO AMEND COMPLAINT
COMES NOW, the plaintiff, through the undersigned counsel and
unto this Honorable Court, most avers:

259
 1. That through inadvertence, plaintiff failed to include in his
Complaint the allegations of damages, attorney’s fees and interest
based on the agreement between him and the defendant;

2. That, to the end that the real matter in dispute and all matters in
the action in dispute between the parties may, as far as possible,
be completely determined in this proceeding, it is necessary and
expedient that plaintiff be allowed to amend his Complaint,
including therein the aforementioned allegations.

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Court that the amended Complaint attached
herewith as Annex “A” of this motion be admitted.
Other relief and remedies as may be deemed just and equitable
under the premises are likewise prayed for.
Section. 3. Amendments by leave of court. – Except as provided in the
next preceding Section, substantial amendments may be made only
upon leave of court. But such leave SHALL be refused if it appears to
the court the motion was made with intent to delay OR CONFER
JURISDICTION ON THE COURT, OR THE PLEADING STATED NO CAUSE
OF ACTION FROM THE BEGINNING WHICH COULD BE AMENDED.
Orders of the court upon the matters provided in this Section shall be
made upon motion filed in court, and after notice to the adverse
party, and an opportunity to be heard.
Amendment by Leave of Court (BAR 1994; BAR 1986)
Leave of Court is required for an amendment made after service
of a responsive pleading, like an answer. This rule assumes more force
and effect especially when the amendment is substantial, such as
amendment which changes the cause of action of the action.

260
 Leave of court is required before an amendment is to be made:
(a) if the amendment is substantial, and (b) a responsive pleading has
already been served. Leave of court is likewise required even if the
amendment is made before a responsive pleading has been served if it
is an amendment subsequent to that amendment made as a matter of
right. This is because the right to amend a pleading under Sec. 2 of Rule
10 may be exercised only “once.”
The plaintiff, for example, cannot, after defendant has filed his
answer, amend his complaint by changing his cause of action or adding
a new one without leave of court.
The general rule on substantial amendments is embodied in Sec.
3, Rule 10. The Rule provides that “substantial amendment may be
made only upon leave of court.” This general rule is however, by the
very tenor of Sec. 3 of Rule 10, subject to Sec. 2 of Rule 10 which in turn
governs an amendment as a matter of right.
The clear import of Sec. 3, Rule 10 is that under the old 1997
Rules, as amended by the 2019 Rules of Civil Procedure, is that an
amendment may now be allowed by the court even if it substantially
alters the cause of action or defense. Hence, it was ruled that this rule
should only be true when despite a substantial change or alteration in
the cause of action or defense, the amendments sought to be made
shall serve the higher interest of substantial justice, and prevent delay
and equally promote the laudable objective of the rules which is to
secure a “just, speedy and inexpensive disposition of every action and
proceeding.”
After a responsive pleading has been filed, an amendment may
result in a substantial alteration of the defense. Such an amendment
does not only prejudice the rights of the defendant but also delays the
action. If this happens, the amendment may be rejected, otherwise it
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may be allowed. On the other hand, where no responsive pleading has
yet been filed, there are no defences which can be altered by an
amendment (Siasoco v. Court of Appeals, 303 SCRA 186)
In determining whether a different cause of action is introduced
by amendments to the complaint, what must be ascertained is whether
the defendants shall be required to answer for a liability or legal
obligation wholly different from that stated in the original complaint.
An amendment will not be considered as stating a new cause of action
if the fact alleged in the amended complaint shows substantially the
same wrong with respect to the same matter but is more fully and
differently stated, or where averments which were implied are made
express, or the subject of the controversy or liability sought to be
enforced remains the same (Que v. Court of Appeals, 33 SCRA 505)
Under the present rules, substantial amendment shall be refused
leave of court, in the following cases:
1. If it appears to the court that the motion was made with intent to
delay the proceedings;

2. To confer jurisdiction on the court;

3. The pleading stated no cause of action from the beginning which

could be amended.
BAR 1994
Michelle sued Juliet for reinvindication for the recovery of land.
After the hearing but previous to the rendition of judgment, Michelle
amended her complaint making the principal action one for rescission
of contract. Juliet objected.
If you were the judge, would you allow the amendment?

262
Suggested answer
If I were the judge, I would not allow the amendment. Although
there is a similarity in purpose between the original action and the
action as amended, the grounds relied upon for such causes of action
are not the same. The reinvindicatory action is usually availed of when
the plaintiff has been dispossessed of the land and where there is also
at the same time the material issue of ownership over the property.
Rescisison, on the other hand, does not necessarily involve an illegal
dispossession but may be based on grounds provided either under Art.
1191 or Art 1380 of the Civil Code of the Philippines. Since the
defendant may be required to answer for a liability or legal obligation
wholly different from that stated in the original complaint, there could,
therefore, be a substantial change in the cause of action. It must
likewise be added that the amendments, if allowed, would have the
effect of delaying the proceedings because there appears no
justification for amending the complaint after and not before the
hearing. When it appears that the amendment would have the effect of
delaying the proceedings or is made with the intent to delay, the
amendment may be refused.

What is the remedy in case of denial of the motion for leave to amend?
The proper remedy in case of denial of the motion for leave to file
an amendment to a pleading is Petition for Certiorari under Rule 65 of
the Rules of Court, since the grant of the same is merely discretionary
and for being interlocutory which is not appealable under Section 1 b)
of rule 41, and it is tainted with grave abuse of discretion.
Section. 4. Formal amendments. – A defect in the designation of the
parties and other clearly clerical or typographical errors may be

263
summarily corrected by the court at any stage of the action, at its
initiative or on motion, provide no prejudice is caused thereby to the
adverse party.
What are the subjects of a formal amendment?
A formal amendment can be made in the pleading involving:
1. A defect in the designation of the parties and

2. Other clearly clerical or typographical errors

How will formal amendment be made?

Formal amendment may be summarily corrected by the court at
any stage of the action by
!. At its initiative or
3. On motion, provide no prejudice is caused thereby to the
adverse party.
In other words, formal amendment such as amendments to
correct a defect in the designation of the parties and clearly clerical or
typographical errors may be summarily corrected by the court at any
stage of the action, either on its own initiative or on motion by a party
provided prejudice is not caused to the adverse party.
Sample of Form: Motion for Leave of Court to Amend Complaint
MOTION FOR LEAVE OF COURT TO AMEND COMPLAINT
COMES NOW, the plaintiff, through the undersigned counsel
and into this Honorable Court, most respectfully avers:
1. That through inadvertence, plaintiff failed to include in his
Complaint the allegations of damages, attorney’s fees and

264
 interest based on the agreement between him and the
defendant;

2. That a copy of the complaint was already served to the

defendant, and the latter has already filed his answer;

3. That, to the end that the real matter in dispute and all matters
in the action in dispute between the parties may, as far as
possible, be completely determined in this proceeding, it is
necessary and expedient that plaintiff with proper leave from
this Court that he be allowed to amend his Complaint,
including therein the aforementioned allegations. Copy of the
Amended Complaint is hereto attached as Annex “A” hereof.

WHEREFORE, premises considered, with prior leave it is most

respectfully prayed of this Honorable Court that the amended
complaint attached herewith as Annex “A” of this motion be
admitted.
Other relief and remedies as may be deemed just and
equitable under the premises are likewise prayed for.

Section. 5. NO amendment to conform to or authorize presentation of

evidence.-- When the issues not raised by the pleadings are tried with
the express or implied consent of the parties, they shall be treated in
all respect as if they had been raised in the pleadings. NO
AMENDMENT OF SUCH PLEADINGS DEEMED AMENDED IS NECESSARY
TO CAUSE TO CONFORM TO THE EVIDENCE.
When is amendment to conform or authorize the presentation of
evidence available?

265
 When the issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respect as if they had been raised in the pleadings.
The present rules, however, provide that “when issues not raised
by the pleadings are tried with the express or implied consent of the
parties, they shall be treated as if they had been raised in the pleadings.
No amendment of such pleadings deemed amended is necessary to
cause them to conform to the eveidence. It simply means that “when
issues not raised by the pleadings are tried with the express or implied
consent of the parties, there is an IMPLIED AMENDMENT of the
pleadings with respect to those issues not raised in the pleadings but
not objected by the parties. Since the pleadings are deemed amended
in relation to those issues not raised but not objected to by the parties,
there is NO need to file a motion to amend the pleadings in order to
conform to evidence, as was the practice before the amendatory rules.
What is the course of action of the court if evidence is objected on the
ground that it is not within the issue in the pleading?
If evidence is objected to at the trial on the ground that it is not
with the issues made by the pleadings, the court may allow the
pleadings to be amended so with liberality if the presentation of the
merits of the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance to enable the
amendment to be made.
Amendment to conform to the evidence or to authorize presentation of
evidence.
Common reason dictates that a party cannot introduce evidence
on a matter not raised as an issue in the pleadings. The evidence will
certainly be objected to as irrelevant. Such objection will more likely be

266
sustained by the court. But when issues not raised in the pleadings are
tried with either the express or implied consent of the parties, such as
when no objection is made by either, such issues not raised in the
pleadings shall be treated in all respects as if they had been raised in
the pleadings.
“The general rule is allegata et probate – a judgment must
conform to the pleadings and the theory of the action under which the
case was tried.” But a court may also rule and render judgment on the
basis of the evidence before it, even though the relevant pleading has
not been previously amended, so long as no surprise or prejudice to the
adverse party is thereby caused (Vlason Enterprises Corporation v.
Court of Appeals, 310 SCRA 26)
Evidence not raised in the pleadings is objected to
In case an evidence is presented on a matter not in issue and said
evidence was objected to, the proponent of the evidence may move for
the amendment of the pleadings in order that said pleadings will
conform to the evidence. The motion may be made anytime, even after
judgment. The court may allow the amendment, the same being
addressed to its discretion to be exercised liberally. Allowing the
amendment is subject to the condition that the presentation of the
merits of the action and the ends of substantial justice will be served
thereby. The court may grant a continuance to enable the amendment
to be made.
Under Sec. 5 of Rule 10, “when issues not raised by the pleadings
are tried with the express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings.”
Sec. 5 of Rule 10 envisions TWO situations: The FIRST is when the
evidence is introduced on an issue not alleged in the pleadings and no

267
objection was interposed by the other party, in such case, there is an
implied amendment of the pleading with respect to such issue. The
SECOND is when evidence is offered on an issue not raised in the
pleadings but an OBJECTION was interjected. The rule in the SECOND
scenario is that the court may nevertheless admit the evidence where
the objecting party fails to show that the admission of the evidence
would prejudice him in his defense. The court must, however, must
give him a continuance to enable him to meet the new situation.
BAR 1992
A complaint was filed by the counsel for Superior Sales (an entity
without a juridical personality) against Mr. Garcia on a money claim for
goods delivered. Mr. Garcia did not file a motion to dismiss. Eventually,
trial was held and his liability was established through several invoices,
each of which uniformly showed on its face that Mr. Tan is the
Proprietor of Superior sales. After Superior Sales had rested its case,
Mr. Garcia filed a motion to dismiss on the ground that, since there is
actually no person properly suing as plaintiff, no relief can be granted
by the court. On the other hand, the counsel for Superior Sales filed a
motion to amend the complaint to make it conform to the evidence,
that the real party plaintiff is Mr. Tan. The court denied said motion on
the ground that it was filed too late and instead, dismissed the case.
Did the Court act correctly?
Suggested Answer
The court did not act correctly in denying the motion to amend
the complaint and in dismissing the case. Although there was a defect
in the designation of the plaintiff, Superior Sales because it had no
juridical personality to sue, this defect was cured by the failure of the
defendant to object the evidence that Mr. Tan is the proprietor of the
business. This matter of Mr. Tan being the proprietor was tried with the
268
consent of the parties and should be treated as if it had been already
raised in the pleadings. By implied consent of the parties, Mr. Tan is the
real party interest as the plaintiff in accordance with the evidence.
There is therefore, no legal basis for the contention of Mr. Garcia that
there is actually no person suing as plaintiff. An amendment to the
complaint to conform to the evidence is proper under the facts of the
case (Sec. 5, Rule 10, Rules of Court).

No amendment where no cause of action exists

May a complaint that lacks a cause of action at the time it was
filed be cured by the accrual of a cause of action during the pendency
of the case?
The curing effect under Section 5 is applicable only if a cause of
action in fact exists at the time the complaint is filed, but the complaint
is defective for failure to allege the essential facts… It thus follows that
a complaint whose cause of action has not yet accrued cannot be cured
or remedied by an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the cases is pending.
Such an action is prematurely brought and is, therefore, a groundless
suit, which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this rule is
that a person should not be summoned before the public tribunals to
answer for complaints which are immature.
The issue raised above has been clearly answered by the
amendment introduced in Section 3, Rule 10, which in substance
provides that “xxxx But such leave shall be refused if it appears to the
court that the motion was made xxx or the pleading stated no cause of
action from the beginning which could be amended.”

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Amendment to correct a jurisdictional defect before a responsive
pleading is served.
A fair reading of jurisprudence recognizes the right of a pleader to
amend his complaint before a responsive pleading is served even if its
effect is to correct a jurisdictional defect. The argument that the court
cannot allow such type of amendment since the court must first
possess jurisdiction over the subject matter of the complaint before it
can act on any amendment has no application upon an amendment
that is made as matter of right.
Amendment to correct a jurisdictional defect after a responsive
pleading is served.
An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served. The
amendment this time would require leave of court, a matter which
requires the exercise of sound judicial discretion. The exercise of this
discretion requires the performance of a positive act by the court. If it
grants the amendment, it would be acting on a complaint over which it
has no jurisdiction. Its action would be one performed without
jurisdiction. However, it is now explicit under the 2019 Rules of Civil
Procedure that leave of court shall be refused if it appears to the court
that the amendment is to “confer jurisdiction on the court.”
Example:
Assume that a complaint for php150, 000. 00, an amount
cognizable by a MTC, was instead filed should be denied. Since the RTC
had no jurisdiction over the complaint, it had no authority to act on the
same like allowing amendment to the complaint. A court must first
have jurisdiction over a case before it can validly act on the same. The

270
only authority which the court has under the circumstances, is to
dismiss the complaint.
Assume however, that the amendment was made before the
defendant has served his answer. Should the amendment be allowed
on the theory that the amendment to be made is one which is a matter
of right?
Cases: (a) Rosario v. Carandang, 96 Phil. 845 (1955) (b) Campos Rueda
Corporation vs. Bautista, 6 SCRA 240 (1962); (c) Gaspar vs. Dorado, 15
SCRA 331 (1965). “The Supreme Court ruled that the amendment to the
complaint could not be allowed so as to confer jurisdiction upon the
court, since the court must first acquire jurisdiction over the case in
order to act validly therein.”
Cases of Soledad vs. Mamangun, 8 SCRA 110 (1963) and Gumabay vs.
Baralin, 77 SCRA 258 (1977). “The court also ruled that there was no
need for the court to allow the admission of the amended complaint
since the plaintiff’s right to do so amend his pleading cannot be
denied.”

When summons not required after complaint is amended

Although the original pleading is deemed superseded by the
pleading that amend it, it does not ipso facto follow that service of new
summons is required. Where the defendants have already appeared
before the trial court by virtue of a summons in the original complaint,
the amended complaint may be served upon them without need of
another summons, even if new causes of action alleged. A court’s

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jurisdiction continues until the case is finally terminated once it is
acquired.
Conversely, when the defendants have not yet appeared in court,
new summons on the amended complaint must be served on them.
Section. 6. Supplemental pleading. – Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just, permit
him to serve a supplementary pleading setting forth TRANSACTION,
OCCURENCES or EVENTS which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead
thereto within ten (10) CALENDAR days from notice of the order
admitting the supplemental pleading.
A supplemental pleading is one which sets forth transactions,
occurrences, or events which have happened since the date of the
pleading sought to be supplemented.
The filing of a supplemental pleading always requires leave of
court which may allow the pleading only upon such terms as are just.
This leave is sought by filing of a motion and with notice to all parties.
When the cause of action stated in the supplementary complaint is
different from the cause of action mentioned in the original complaint,
the court should not admit the supplemental complaint (Asset
Privatization Trust v. Court of Appeals, G.R. No. 81024, February 3,
2000).
When can a supplemental pleading be filed?
Upon motion of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve a supplemental
pleading setting forth the following:
a) Transactions;

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 b) Occurrences; or
c) Events which have happened since the date of the pleading
sought to be supplemented.

Office of a supplemental pleading.

As a general rule, leave will be granted to a party who desires to
file a supplemental pleading that alleges any material fact which
happened or came within the party’s knowledge after the original
pleading was filed, such being the office of a supplemental pleading.
Cause of action in supplemental pleadings:
When the cause of action in the supplemental complaint is
different from the cause of action mentioned in the original complaint,
the court should not admit the supplemental complaint (Asset
Privatization Trust v. CA, 324 SCRA 533).
As its very name denotes, a supplemental pleading only serves to
bolster or add something to the primary pleading. A supplemental
pleading exists side by side with the original. It does not replace that
which it supplements. Moreover, a supplemental pleading assumes
that the original is to stand and that the issues joined with the original
pleading remained an issue to be tried in the action. It is but a
continuation of the complaint. Its usual office is to set up new facts
which justify, enlarge or change the kind of relief with respect to the
same subject matter as the controversy referred to in the original
complaint. (Chan v. Chan, 569 SCRA 106).
Period to file a responsive pleading to a supplemental pleading?
The adverse party may plead thereto within ten (10) CALENDAR
days from notice of the order admitting the supplemental pleading.

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BAR 1983
On 22 February 1982, Amado Cabo filed with the Regional Trial
Court of Albay a complaint against his contractor, Maximo Soriano, for
breach of contract and recovery of consequential damages. The
complaint, docketed as Civil Case No. 7916, alleged the sub-standard
workmanship employed by defendant in the construction of plaintiff’s
house in Albay as evidenced, among others, by the leaking roofs and
warping ceilings.
Defendant promptly filed his answer and the case proceeded to
trial on the merits. As of August 1983, the trial has progressed to the
stage where defendant Soriano was testifying on direct examination on
his defences. In the same month, Albay underwent a torrential rain, in
the midst of which the house of Cabo collapsed, causing physical
injuries to his wife and children. It was ascertained that the foundation
of the house was made only of gravel instead of reinforced concrete as
stipulated in the con struciton contract.
What pleading should the lawyer of Amado Cabo file so that the
Cabo family could recover from defendant all the damages they
sustained from the collapse of their house? Give the ground and
supporting reasons for your answer.
Suggested answer
The lawyer of Amado Cabo should file supplemental pleading
alleging that the injuries sustained by the family of his client was the
direct, natural and logical consequences of the breach by the defendant
of his contractual obligations. Under the Rules of Court, upon motion
by a party, the court may, upon reasonable notice and upon such terms
as are just, permit a party to serve a supplemental pleading setting

274
forth the transactions, occurrences or events which have happened
since the date of the pleadings sought to be supplemented.
Example:
Due to the reckless driving of the driver of a passenger bus,
Antonio sustained physical injuries, which requires hospitalization.
Antonio files an action for Breach of Contract of Carriage against the
driver and the operator of the passenger bus, asking for damages in the
tune of P500, 000. 00. During the course of the trial, Antonio incurred
additional medical expenses because of the injuries his sustained as a
result of the accident. The remedy of Antonio in this particular case is
to file a supplemental pleading setting forth the transaction,
occurrences or events which have transpired sine the date of the
pleading sought to be supplemented.
Section. 7. Filing of amended pleadings. – When any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be
filed.
What are the requirements in the filing of an amended pleading?
The above provision mandates that when any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments shall be filed. The amendments should be indicated by
appropriate marks. Simply put, in the filing of the Motion to Amend
Complaint, the Amended Complaint should be attached to the said
motion, wherein the amendments should be highlighted or be
indicated by appropriate marks.
Period to file a responsive pleading to a supplemental pleading?

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 “Rule 11, Sec.7. Answer to supplemental complaint. – A
supplemental complaint may be answered within twenty (20) calendar
days from notice of the order admitting the same, unless a different
period is fixed by the court. The answer to the complaint shall serve as
the answer to the supplemental complaint if no new or supplemental
answer is filed.
Distinction between amended pleading and supplemental pleading
The following are the distinction between amended pleading and
supplemental pleading, as follows, to wit:
1. The filing of an amended pleading may either be as a matter of
right or with leave of court; the filing of a supplemental pleading
is always with leave of court;

2. Amended pleading alleges facts that occurred before the filing of

the original pleading; supplemental pleading alleges facts
occurring after the filing of the original pleading;

3. Amended pleading supersedes the original pleading;

supplemental pleading does not supersede the original pleading
but assumes that the original pleading is to stand.

Section. 8. Effects of amended pleading. – An amended pleading

supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the
pleader; and claims or defenses alleged therein not incorporated in
the amended pleading shall be deemed waived.
What are the effects of an amended pleading?
1. It supersedes the pleading that it amends;

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 2. The admissions in the superseded pleadings may be received in
evidence against the pleader;

3. Claims or defenses alleged therein not incorporated in the

amended pleading shall be deemed waived;

4. The admissions made in the original pleading shall be treated as

an extra-judicial admission which shall be alleged and proved;

5. Any ancillary order/remedy issued in the original pleading shall be

deemed vacated or lifted;

6. It requires another certification of non-forum shopping if it is a

substantial amendment of the original complaint; and

7. In case the complaint is amended, it requires the service of

summons if the defendant has not yet appeared before the court
and submitted to its jurisdiction.

Effect of amended pleadings

An amended pleading supersedes the pleading that it amends.

However, admissions in superseded pleadings may be received in
evidence against the pleader, and claims or defences alleged therein
not incorporated in the amended pleading shall be deemed waived.

Pleadings superseded or amended disappear from the record,

lose their status as pleadings and cease to be judicial admissions, and to
be utilized as judicial admissions, they must, in order to have such

277
effect, be formally offered in evidence (Ching v. Court of Appeals, 331
SCRA 16)

It has been held that for purposes of determining the

commencement of the suit, the original complaint is deemed
abandoned and superseded by the amended complaint only if the
amended complaint introduces anew or different cause of action or
demand (Versoza v. Court of Appeals, 29 SCRA 100).

New summons required

An amended pleading supersedes the original one which is

deemed withdrawn and no longer considered part of the record. But it
does not follow ipso facto that the service of a new summons is
required. Where the defendants have already appeared before the trial
court by virtue of a summons in the original complaint, the amended
complaint may be served upon them without need of another
summons, even if new causes of actions are alleged. A court’s
jurisdiction continues until the case is finally terminated once it is
acquired. Conversely, when defendants have not yet appeared in court,
new summons on the amended complaint must be served on them. It is
not the change of of a cause of action that gives rise to the need to
serve another summons for the amended complaint rather the
acquisition of jurisdiction over the persons of the defendants. If the trial
court has not yet acquired jurisdiction over them, a new summons for
the amended complaint is required. Where the trial court had already
acquired jurisdiction over the persons of the defendants when they
were served with summons on the basis of the original complaint and
the defendants appeared and filed a motion to dismiss, the theory that
new summons need be issued for the amended complaint is untenable
(Gumabay v. Baralin, 77 SCRA 258)

BAR 1999

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 When an additional defendant is impleaded in the action, is it
necessary that summons be served upon him?

Suggested answer

Summons must be served upon the defendant. It is the means by

which the court acquires jurisdiction over the person of the defendant.
Without service of summons, any judgment against the defendant will
be void unless he voluntarily appears in the action (Arcenas v. Court of
Appeals, 299 SCRA 733)

BAR 1993

In an action for reconveyance of a parcel of land filed in the

Regional Trial Court, the defendant through his lawyer, filed an answer
admitting the averment in the complaint that the land was acquired by
the plaintiff through inheritance from his parents, the former owners
thereof.

Subsequently, the defendant changed his lawyer and, with leave

of court, amended the answer. In the amended answer, the
abovementioned admission no longer appears. Instead the alleged
onweship of the land by the plaintiff was denied coupled with the
allegation that the defendant is the owner of the land for the reason
that he bought the same from the plaintiff’s parents during their
lifetime.

After trial, the Regional Trial Court rendered a decision upholding

the defendant’s ownership of the land.

On appeal, the plaintiff contended that the defendant is bound by

the admission contained in his original answer.

In the contention of plaintiff correct?

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Suggested answer

The contention of the plaintiff is not correct. An amended

pleading supersedes the pleading that it amends. The amended
pleading is therefore, deemed withdrawn and no longer part of the
record and the admissions therein are no longer under the category of
judicial admissions. Admissions in superseded pleadings may however,
be received in evidence against the the pleader (Sec. 8, Rule 10), as
extrajudicial admissions. To be so admitted, they must first be formally
offered in evidence. This is because of the rule that the court shall
consider no evidence which has not been formally offered (Sec. 34, Rule
132, Rules of Court).

RULE 11

WHEN TO FILE RESPONSIVE PLEADINGS

280
Section 1.Answer to the complaint. — The defendant shall file his OR
HER answer to the complaint within THIRTY (30) CALENDAR days after
service of summons, unless a different period is fixed by the court.

Within what time shall the defendant file his or her answer to the
complaint?

The defendant shall file his answer to the complaint within THIRTY
(30) CALENDAR days after service of summons, unless a different period
is fixed by the court.

For instance, the defendant validly receives a copy of the

summons on October 1, 2019, generally the defendant has thirty (30)
calendar days to file his answer or on November 02, 2019, unless the
court fixed a different period.

Section 2. Answer of a defendant foreign private juridical entity. —

Where the defendant is a foreign private juridical entity and service of
summons is made on the government official designated by law to
receive the same, the answer shall be filed within SIXTY (60)
CALENDAR days after receipt of summons by such entity.

Within what time shall a defendant which is a foreign private judirical

entity to file its answer?

Where the defendant is a foreign private juridical entity and

service of summons is made on the government official designated by
law to receive the same, the answer shall be filed within SIXTY (60)
CALENDAR days after receipt of summons by such entity.

Section 3. Answer to amended complaint. — When the plaintiff files

an amended complaint as a matter of right, the defendant shall
answer the same within THIRTY (30) CALENDAR days after being
served with a copy thereof.

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Within what time shall the defendant file his or her when the plaintiff
files an amended complaint as a matter of right?

When the plaintiff files an amended complaint as a matter of

right, the defendant shall answer the same within THIRTY (30)
CALENDAR days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer
the amended complaint within FIFTEEN (15) CALENDAR days from
notice of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new answer is
filed.

When it is not a matter of right?

Where its filing is not a matter of right, the defendant shall

answer the amended complaint within FIFTEEN (15) CALENDAR days
from notice of the order admitting the same. An answer earlier filed
may serve as the answer to the amended complaint if no new answer is
filed.

This Rule shall apply to the answer to an amended counterclaim,

amended cross-claim, amended third (fourth, etc.)—party complaint,
and amended complaint-in-intervention.

Section 4. Answer to counterclaim or cross-claim. — A counterclaim or

cross-claim must be answered within TWENTY (20) CALENDAR days
from service.

Within what time shall a counter-claim or cross-claim be answered?

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 Section 4. Answer to counterclaim or cross-claim. — A
counterclaim or cross-claim must be answered within TWENTY (20)
CALENDAR days from service.

Section 5. Answer to third (fourth, etc.)-party complaint. — The time

to answer a third (fourth, etc.)—party complaint shall be governed by
the same rule as the answer to the complaint.

Within what time shall a third (fourth, etc) – party complaint shall be
answered?

The filing of the answer shall be governed by the same rule as the
answer to the complaint. Meaning the answer shall be filed within
Thirty (30) calendar days after service of summons, unless a different
period is fixed by the court.

Section 6. Reply. — A REPLY, IF ALLOWED UNDER SECTION 10, RULE 6

HEREOF, MAY BE FILED WITHIN FIFTEEN (15) CALENDAR days from
service of the pleading responded to.

Within what time shall a reply be filed?

A reply shall be filed within Fifteen (15) calendar days from service
of the pleading to be responded to.

For example, the plaintiff receives a copy of the defendant’s

answer and it is based on an actionable document, the plaintiff has
fifteen (15) calendar days to file his Reply counting from the time he
received said defendant’s answer.

Section 10, Rule 6 provides:

“Section. 10. REPLY. – ALL NEW MATTERS ALLEGED IN THE ANSWER
ARE DEEMED CONTROVERTED. IF THE PLAINTIFF WISHES TO INTERPOSE
ANY CLAIM ARISING OUT OF THE NEW MATTERS SO ALLEGED, SUCH

283
CLAIMS SHALL BE SET FORTH IN AN AMENDED OR SUPPLEMENTAL
COMPLAINT. HOWEVER, THE PLAINTIFF MAY FILE A REPLY ONLY IF THE
DEPENDING PARTY ATTACHES AN ACTIONABLE DOCUMENT TO HIS OR
HER ANSWER.
A reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged IN, OR RELATING
TO, SAID ACTIONABLE DOCUMENT.
IN THE EVENT AN ACTIONABLE DOCUMENT ATTACHED TO THE REPLY,
THE DEFENDANT MAY FILE A REJOINDER IF THE SAME IS BASED SOLELY
ON AN ACTIONABLE DOCUMENT.”

Section 7. Answer to supplemental complain. — A supplemental

complaint may be answered within TWENTY (20) CALENDAR days
from notice of the order admitting the same, unless a different period
is fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental
answer is filed. (n)

Within what time shall an answer be filed to supplemental complain?

A supplemental complaint may be answered within TWENTY (20)

CALENDAR days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the complaint shall
serve as the answer to the supplemental complaint if no new or
supplemental answer is filed. (n)

Section 8. Existing counterclaim or cross-claim. — A compulsory

counterclaim or a cross-claim that a defending party has at the time
he files his answer shall be contained therein.

It is clear under the above provision, that the defending’s party

compulsory counterclaim or cross-claim existing at the time his files his

284
answer, shall be contained in his answers. Otherwise, they are deemed
barred forever, unless allowed by these Rules, as provided for under
Section 9 of this Rule with respect to counterclaim or cross-claim which
either matured or was acquired by a party after serving his pleading,
and this is done by way of a Supplemental pleading. Or relative to a
counterclaim or cross-claim which was not set-up through oversight,
inadvertence, or excusable neglect or when justice so requires and this
is done by way of Amended complaint.

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

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

Section 9 above provides for an exception to the rule that

compulsory counter-claim or cross-claim not raised in the answer is
barred forever. The exception refers to a situation wherein a
compulsory counter-claim or cross claim either matured or was
acquired by a party after serving his answer, and it may be presented in
court by SUPPLEMENTAL pleading before judgment after securing after
securing leave of court.

For example, after filing his Answer with Counterclaim, to the

plaintiff’s complaint, defendant sustained additional damages by way of
moral damages or attorney’s fees, he can set them up by way of
SUPPLEMENTAL pleading, by leave of court, before judgment.

Section 10. Omitted counterclaim or cross-claim. — When a pleader

fails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he OR
SHE may, by leave of court, set up the counterclaim or cross-claim by
AMENDMENT before judgment.

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 This is an additional exception to the rule that compulsory
counterclaim or cross-claim not set in the answer is barred forever.
When a pleader fails to present a compulsory counter-claim or cross-
claim through (1) oversight, (2) inadvertence, (3) excusable neglect, or
(4) when justice requires, the pleader may by leave of court, set up the
same by AMENDMENT before judgment.

For instance, the defendant, through excusable neglect, fails to

set up in his answer, among other things, the moral damages he
incurred and the legal fees he expended because of the plaintiff’s
complaint, he can set them up, with leave of court, by way of
AMENDMENT of his ANSWER before judgment.

Section 11. Extension of time to FILE AN ANSWER. — A DEFENDANT

MAY, FOR MERITORIOUS REASONS, BE GRANTED AN ADDITIONAL
PERIOD OF NOT MORE THAN THIRTY (30) CALENDAR DAYS TO FILE AN
ANSWER. A DEFENDANT IS ONLY ALLOWED TO FILE ONE (1) MOTION
FOR EXTENSION OF TIME TO FILE AN ANSWER.

A MOTION FOR EXTENSION TO FILE ANY PLEADING, OTHER THAN AN

ANSWER, IS PROHIBITED AND CONSIDERED A MERE SCRAP OF PAPER.
THE COURT, HOWEVER, MAY ALLOW ANY OTHER PLEADING TO BE
FILED AFTER THE TIME FIXED BY THESE RULES.

The amendatory provision provides that only a Motion for

Extension of Time to file Answer is allowed by the Rules. The caveat is
that this motion should only be exercised once. The filing for an
extension of time to file any other pleadings is a prohibited motion and
shall be outrightly denied by the court as a mere scrap of paper. For
example, the filing of a Motion for Extension to File a Reply or a Motion
for Extension of Time to file Motion to Dismiss, is considered as a mere
scrap of paper, hence should be denied outrightly by the court.
However, for meritorious cases and in the higher interest of justice, the

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court may allow the filing of any other pleadings after the time fixed for
their filing has lapsed.

What are the courses of action of the court in case of a motion for an
extension of time to file pleading is filed?

Upon motion and on such terms as may be just, the court may

1. Extend the time to plead provided in these Rules, but the

additional period shall not be more than Thirty (30) calendar
days.

2. The court may also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by these Rules.

3. The court shall allow the defendant only one (1) motion for
extension of time to file an answer.

Motion for extension of time to file pleading must be filed before the
expiration of the period sought to be extended.

A motion for extension to file a pleading must be filed before the

expiration of the period sought to be extended. The courts discretion to
grant a motion for extension is conditioned upon such motion’s
timeliness, the passing of which renders the court powerless to
entertain or grant it. Since the motion for extension was filed after the
lapse of the prescribed period, there was no more period to extend.
(Reynaldo Posiquit vs. People, G.R. No. 193943, January 12, 2012)

Filing of motion for extension of time is tantamount to the submission

to the jurisdiction of the court.

287
 The filing of a motion for time is considered a submission to the
jurisdiction of the court. (Allan C. Go vs. Mortimer F. Cordero, G.R. No.
164703, May 4, 2010).

Sample form:

MOTION FOR EXTENSION OF TIME TO FILE ANSWER/RESPONSIVE

PLEADING

COMES NOW, the defendant, through the undersigned counsel

and unto this Honorable Court, most respectfully moves:

1. That on February ____, 2019, defendant received a copy of the

Summons issued by this Honorable Court with attached
Complaint and annexes, requiring him to file his Answer to the
said complaint;

2. That defendant only secured the services of the undersigned

counsel only today February ___, 2019, and he needs time to
familiarize himself of the facts of the case, and needs additional
time of thirty (30) calendar days to file said answer/responsive
pleading.

WHEREFORE, defendant prays that he be granted an additional

time of thirty (30) calendar days from February ____, 2019 within which
to file his answer/responsive pleading based on the abovew reasons.

Such other relief and remedies as may be deemed just and

equitable in the premises are likewise prayed for.

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 RULE 12

BILL OF PARTICULARS

Section 1.When applied for; purpose. — Before responding to a

pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averted with sufficient
definiteness or particularity to enable him OR HER properly to prepare
his responsive pleading. If the pleading is a reply, the motion must be
filed within ten (10) CALENDAR days from service thereof. Such
motion shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.

What is a bill of particulars?

Bill of particulars is a more definite statement of fact and material

allegations in the pleading.

What is a motion for bill or particulars?

It is an application before the court for a more definite statement

of the facts and material allegations in the pleading.

What is the nature of a motion for bill of particulars?

A motion for bill of particulars is a formal and litigated motion

which must be in writing and requires notice to the adverse party and
hearing.

What is the purpose for filing of a motion for a bill of particulars?

In one case, the Supreme Court has ruled that “It is the office or
function, as well as the object or purpose, of a bill of particulars to
amplify or limit a pleading, specify more minutely and particularly a
calim of defense set up and pleadedin general terms, give information,

289
not contained in the pleading, to the opposite party and the court as to
the précised nature, character, scope, and extent of the cause of action
or defense relied on by the pleader, and apprise the opposite party of
the case which he has to meet, to the end that the proof at the trial
may be limited to the matter specified, and in order that surprise at,
and needless preparations for, the trial may be avoided, and that the
opposite party may be aided in framing his answering pleading and
preparing for trial. It has also been stated that it is the function or
purpose of a bill of particulars to define, clarify, particularize, and limit
or circumscribe the issues in the case, to expidite the trial, and assist
the court. A general function or purpose of a bill of particulars is to
prevent injustice or do justice in the case when that cannot be
accomplished without aide of such a bill (Republic vs. Sandiganbayan,
G.R. No. 115748, August 7, 1996)

The options open to the defendant upon his receipt of summons

The moment the defendant received a copy of the summons, he

has three (3) courses of action as provided for by the Rules. He could
either (1) File his Answer, or (2) File a Motion to Dismiss, or (3) File a
Motion for Bill of Particulars. Simply put, upon his receipt of the
summons, there is yet no urgency for him to immediately file his
Answer if there are other legal remedies open to him like filing a
Motion to Dismiss or Motion for Bill of Particulars.

For example, there are matters in the complaint which are vague
or ambiguous or not averred with sufficient definiteness, the defendant
need not file his answer to the complaint within the required period.
Instead, he may file a motion for bill of particulars, and pray for the
court to issue an order requiring the complainant to asset with clarity
and definiteness certain allegations in the plaintiff’s complaint which
are ambiguous or indefinite.

290
 A motion for bill of particulars is not directed only to a compliant.
It is a motion that applies to any pleading, like Answer, Counterclaim,
Cross-claims or Reply, which on the perception of the movant contains
ambiguous allegations. For instance, upon receipt of the defendant’s
answer, and before filing his Reply, the plaintiff may file a Motion for
Bill of Particulars to make certain or clear assertion in the defendant’s
answer which the plaintiff believes is ambiguous or indefinite.

When can a party apply for a bill of particulars?

Before responding to a pleading, a party may move for a definite

statement or for a bill of particulars of any matter which is not averted
with sufficient definiteness or particularity to enable him properly to
prepare his responsive pleading. If the pleading is a reply, the motion
must be filed within fifteen (15) calendar days from service thereof.
Such motion shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.

What will the motion for bill of particulars contain?

A motion for bill of particulars shall point out the following:

1. The defects complained of,

2. The paragraphs wherein they are contained, and
3. The details desired.

Remedies in case of denial of motion for Bill of Particulars

Appeal is not the proper remedy in the event a motion for bill of
particulars is denied, for the reason that an order denying a motion for
bill of particulars is an interlocutory order and as such it is not
appealable. The remedy, therefore, of the movant is:

1. To file his answer in case the subject of the Bill of Particulars is

the plaintiff’s complaint.
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 2. To file his reply in case the subject of the Bill of Particulars is
the defendant’s answer.

3. If the order is tainted with grave abuse of discretion, the

remedy is to file a Petition for Certiorari under Rule 65 of the
Rules of Court.

Distinctions between bill of particulars in civil cases (Rule 12) and bill of
particulars in criminal cases (Rule 116)

1. Bill of particulars under Rule 12 must be filed before the filing

of a responsive pleading or in case of a reply within ten (10)
days from receipt thereof; while Bill of particulars under Rule
116 must be filed before arraignment;

2. Bill of particulars under Rule 12 is directed against a pleading;

while bill of particulars under Rule 116 is directed against a
criminal complaint or information;

3. In case of denial of the motion for bill of particulars under Rule

12, the moving party may file his responsive pleading within
the period he is entitled to but in no case less than five (5)
days, unless the denial is tainted with grave abuse of
discretion, hence, petition for certiorari under Rule 65; while in
case of denial of the motion for bill of particulars under Rule
116, the accused may proceed with the arraignment and enter
his plea, unless the denial is tainted with grave abuse of
discretion, party may file a petition for certiorari.

Section 2. Action by the court. — Upon the filing of the motion, the
clerk of court must immediately bring it to the attention of the court
which may either deny or grant it outright, or allow the parties the
opportunity to be heard.

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What are the courses of action of the court on the motion for bill of
particulars?

Upon the filing of the motion, the clerk of court must immediately
bring it to the attention of the court which may:

1. Deny it outright; or
2. Grant it outright; or
3. Allow the parties the opportunity to be heard.

Example:

Within the period for filing a responsive pleading, the defendant

filed a motion for bill of particulars that he set for hearing on a certain
date. However, the defendant was surprised to find on the date set for
hearing that the trial court had already denied the motion on the day of
its filing, stating that the allegations of the complaint were sufficiently
made.

Did the judge gravely abuse his discretion in acting on the motion
without waiting for the hearing set for the motion? Explain.
Suggested answer
No, the judge did not gravely abuse his discretion when he denied
the motion for bill of particulars without waiting for the hearing set in
the motion. The Rules provide that once the Motion for Bill of
Particulars has been brought to the attention of the court, “it may
either deny or grant it outright...”

BAR 2018

The Republic of the Philippines (Republic) filed a complaint with the

Sandiganbayan in connection with the sequestered assets and

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properties of Demo Companies Inc. (Demo) and impleaded its officers
and directors. Since the complaint did not include Demo as defendant,
the Sandiganbayan issued a Resolution where it ordered Demo to be
impleaded. Thereafter, the Republic filed an amended complaint
naming Demo as additional defendant, which amendment was later
admitted.

Demo filed a motion for bill of particulars for the Republic to clarify
certain matters in its amended complaint. The Sandiganbayan
immediately granted the motion. Upon submission of the bill of
particulars by the Republic, Demo filed a motion to dismiss arguing that
the answers in the bill of particulars were indefinite and deficient
responses to the question of what the alleged illegally acquired funds
or properties of Demo were. The Sandiganbayan dismissed the case.

(a) Was the Sandiganbayan correct in dismissing the case?

(b) What can the defendant, in a civil case, do in the event that his
motion for bill of particulars is denied?

Section 3. Compliance with order. — If the motion is granted, either in

whole or in part, the compliance therewith must be effected within
ten (10) CALENDAR days from notice of the order, unless a different
period is fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a SEPARATE or
in an AMENDED pleading, serving a copy thereof on the adverse
party.

When to comply if the motion is granted?

If the motion is granted, either in whole or in part, the compliance

therewith must be effected within

1. Ten (10) days from notice of the order,

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 2 Unless a different period is fixed by the court.

How to file a bill of particulars?

The bill of particulars or a more definite statement ordered by the

court may be filed either:

1. In a separate pleading; or

In this particular case, the plaintiff may file a sort of

“manifestation” in complaince with the court order granting a
motion for bill of particulars.

2. In an amended pleading. Serving a copy thereof on the adverse

party.

On the other hand, the plaintiff may opt to file an Amended

Complaint, incorporating therein with appropriate markings his
compliance with the order of the court granting the motion for bill
of particulars.

Section 4. Effect of non-compliance. — If the order is not obeyed, or in

case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just.

What is the effect of non-compliance or partial compliance of the

order?

If the order is not obeyed, or in case of insufficient compliance

therewith, the court may:

1. Order the striking out of the pleading;

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 2. Order the striking of the portions thereof which the order was
directed; or

3. Make such other order as it deems just.

If the subject of the Motion for Bill of Particulars is a plaintiff’s

complaint, it is believed that the court may order the dismissal of the
complaint for failure to comply with the order of the court.

Section 5. Stay of period to file responsive pleading. — After service of

the bill of particulars or of a more definite pleading, or after notice of
denial of his OR HER motion, the moving party may file his OR HER
responsive pleading within the period to which he OR SHE was
entitled at the time of filing his motion, which shall not be less than
five (5) CALENDAR days in any event.

What is the effect of service of a more definite statements or the denial

of the motion?

After service of the bill of particulars or of a more definite

pleading, or after notice of denial of his motion, the moving party may:

File his responsive pleading within the period to which he was

entitled at the time of filing his motion, which shall not be less than five
(5) days in any event.

Meaning, if the movant has less than five (5) calendar days to file
his responsive pleading after service of the bill of particulars or after
notice of the denial of his motion, he nevertheless has five (5) calendar
days within which to file his responsive pleading.

For example, five (5) days after days he received a copy of the
summons, defendant through counsel, filed a Motion for Bill of

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Particulars, and if the Motion was eventually denied by the court, the
defendant has the remaining twenty five (25) calendar days (30 – 5 =
25) to file his responsive pleading but in no case it shall be less than five
(5) calendar days.

Example:

Bert received the summons on March 2, 2020. Bert filed a motion

for bill of particulars on March 9, 2020. Clearly, Bert has already
consumed seven (7) calendar days of the original thirty (30) calendar
days period to file his answer. Consequently, Bert still has Twenty three
(23) calendar days to file an anwer. On March 10, 2020, he received the
bill of particulars submitted by Anna or the order of the court denying
his motions. Therefore, his last day for filing an Answer would be on
April 02, 2020.

Example:

Barbara received the summons on March 2, 2020. Barbara filed a

motion for bill of particulars on March 28, 2020. She already consumed
26 days of the original 30 day period to file his answer. Consequently,
she still has 4 days to file his answer. On March 29, 2020, he received
the bill of particulars submitted by Amparo or the order of the court
denying his motion. Therefore, his last day for filing an Answer would
be on April 03, 2020. Why not on April 02, 2020? Because the rule says,
“shall not be less than 5 days in any event.”

Section 6.Bill a part of pleading. — A bill of particulars becomes part

of the pleading for which it is intended.

The rules are explicit that a Bill of Particulars becomes an integral

part of the pleading for which it is intended whether be it a complaint
or counter-claim or cross claim or reply as the case may be. Therefore,

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any admissions or stipulations contained therein shall be binding upon
the party who submitted the bill of particulars.

Sample form:

MOTION FOR BILL OF PARTICULARS

COMES now, the defendant, through the undersigned counsel and

unto this Honorable Court, most respectfully move for a bill of
particulars on the following grounds and avers:

1. That the plaintiff, in his complaint, seeks to recover damages

allegedly suffered by him, in the amount of P5, 000, 000. 00;

2. That plaintiff failed to allege the nature of said damages, the

manner in which he suffered the same, and what computation
he used to arrive at the alleged amount, which sufficient
definiteness, and/or particularly to enable defendant to
properly prepare his responsive pleading and/ or for trial.

WHEREFORE, defendant prays that plaintiff be ordered to

amend the complaint or to submit a Bill of particulars, stating
with definiteness the nature of said damages, the manner in
which he suffered the same, and what computation he used to
arrive at the alleged amount, with sufficient definiteness.

Such other relief and remedies as may be deemed just and

equitable in the premises are likewise prayed for.

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 RULE 13

FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Section 1. Coverage. — This Rule shall govern the filing of all

pleadings, MOTIONS, AND OTHER COURT SUBMISSIONS, as well as
the service thereof, except those for which a different mode of service
is prescribed. (n)

The present rules extend the coverage of the term FILING not only
to pleadings but also to motions, such as motion to dismiss, motion to
amend complaint or motion for bill of particulars, and other court
submissions, like manifestations, memorandum, explanations,
appearances, notice, and the like.

Section 2.Filing and service, defined. — Filing is the act of

SUBMITTING the pleading or other paper to the court.

Filing is defined as the act of submitting the pleading such as

complaint, answer, counterclaim or cross-claim to the court. Within the
definition of filing is the submission of other papers such as motion or
manifestation, to the court.

Service is the act of providing a party with a copy of the pleading OR

ANY OTHER COURT SUBMISSION. If any party has appeared by
counsel, service upon SUCH PARTY shall be made upon his OR HER
counsel, unless service upon the party AND THE PARTY’S COUNSEL is
ordered by the court. Where one counsel appears for several parties,
SUCH COUNSEL shall only be entitled to one copy of any paper served
upon him by the opposite side. (2a)

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 For example, if Atty. Ramos appeared as counsel in a civil case for
damages for defendants Vicente, Roel and Joenar, under the Rules,
Atty. Ramos shall only be entitled to one (1) copy of any pleadings or
court submission served upon him by the opposing counsel.

Where several counsels appear for one party, such party shall be entitled
to only one copy of any pleading or paper to be served upon the lead
counsel if one is designated, or upon any one of them if there is no
designation of a lead counsel. (2a)

For instance, Atty. Ramos, Atty. Go and Atty. Pueblo appeared as

counsels for plaintiff Roel, with Atty. Ramos as the lead counsel,
pursuant to the Rules, the plaintiff shall be entitled to only one (1) copy
of any pleading or papers to be served upon the lead counsel, Atty.
Ramos. If there is no lead counsel, then such pleading or papers shall be
served upon any one of the counsels, Atty. Go or Atty. Pueblo.

SERVICE is understood to mean the act of providing or furnishing

a party with a copy of the pleading or ANY OTHER COURT SUBMISSION.
Furnishing the other party with a copy of a complaint, answer,
counterclaim or cross-claim, is known as service of pleading. In like
manner, the act of providing the other party with a copy of motion,
appearance or manifestation is also service of pleading.

Section 3.Manner of FILING. — The filing of pleadings AND OTHER

COURT SUBMISSIONS, shall be made by:

(a) SUBMITTING PERSONALLY THE ORIGINAL THEREOF, PLAINLY

INDICATED AS SUCH, TO THE COURT;

(b) Sending them by registered mail;

(c) SENDING THEM BY ACCREDITED COURIER; OR

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 (d) TRANSMITTING THEM BY ELECTRONIC MAIL OR OTHER
ELECTRONIC MEANS AS MAY BE AUTHORIZED BY THE COURT IN
PLACES WHERE THE COURT IS ELECTRONICALLY EQUIPPED.

In the first case, the clerk of court shall endorse on the pleading the
date and hour of filing. IN THE SECOND AND THIRD CASES, the date of
the mailing of motions, pleadings, AND OTHER COURT SUBMISSIONS,
and payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of
their filing, payment, or deposit in court. The envelope shall be
attached to the record of the case. IN THE FOURTH CASE, THE DATE OF
THE ELECTRONIC TRANSMISSION SHALL BE CONSIDERED AS THE DATE
OF FILING.

What is the Manner of filing of pleadingand other court submission?

The filing of pleadings AND OTHER COURT SUBMISSIONS, shall be

made by the following:

(a) SUBMITTING PERSONALLY THE ORIGINAL THEREOF, PLAINLY

INDICATED AS SUCH, TO THE COURT;

(b) Sending them by registered mail;

(c) SENDING THEM BY ACCREDITED COURIER; OR

(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR OTHER

ELECTRONIC MEANS AS MAY BE AUTHORIZED BY THE COURT IN
PLACES WHERE THE COURT IS ELECTRONICALLY EQUPPED.

How endorsement shall be made on the pleading?

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 (1) When the filing is done personally, the clerk of court shall
endorse on the pleading the date and hour of filing.

(2) When the filing is done by sending them by registered mail or

sending them by accredited courier, the date of the mailing of
motions, pleadings, AND OTHER COURT SUBMISSIONS, and
payments or deposits, as shown by the post office stamp on
the envelope or the registry receipt, shall be considered as the
date of their filing, payment, or deposit in court. The envelope
shall be attached to the record of the case.

(3) When the filing is by transmitting them by ELECTRONIC

TRANSMISSION, the date of electronic transmission, SHALL BE
CONSIDERED AS THE DATE OF FILING.

Section 4. Papers required to be filed and served. — Every judgment,

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

Under the above provision, it is clear that every judgment,

resolution, order, pleading subsequent to the complaint, written
motion, notice, appearance, demand, offer of judgment or similar
papers shall be FILED with the court, and SERVED upon the parties
affected. This simply means that if for example, the plaintiff’s counsel
files with the court a motion or manifestation, he is mandated to serve
a copy of said motion or manifestation upon the defendant’s counsel,
and the failure of the plaintiff’s counsel to serve a copy of such motion
or manifestation, the court may consider it as a mere scrap of paper.

Section 5.Modes of SERVICE. — Service of pleadings motions, notices,

orders, judgments and other court submissions shall be served
personally or by registered mail, accredited courier, electronic mail,
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facsimile transmission, other electronic means as may be authorized by
the Court, or as provided for in international conventions to which the
Philippines is a party.

MANNER OF SERVICE
There are FIVE (5) modes of service, to wit:

(a) Shall be served PERSONALLY;

(b) Sending them by registered mail;

(c) SENDING THEM BY ACCREDITED COURIER; OR

(d) TRANSMITTING THEM BY ELECTRONIC MAIL OR FACSIMILE

TRANSMISSION, OTHER ELECTRONIC MEANS AS MAY BE
AUTHORIZED BY THE COURT, OR

(e) AS PROVIDED FOR IN INTERNATIONAL CONVENTIONS TO WHICH

THE Philippines is a party.

The last mode of service by “as provided for in international

conventions to which the Philippines is a party,” finds no application to
the manner of filing of pleading and other court submissions under
Section 3, Rule 13.

Section 6. Personal service. — COURT SUBMISSIONS MAY BE SERVED

BY PERSONAL DELIVERY OF a copy to the party or TO THE PARTY’S
counsel, or OR TO THEIR AUTHORIZED REPRESENTATIVE NAMED IN
THE APPROPRIATE PLEADING OR MOTION, or by leaving it in his OR
HER office with his OR HER clerk or with a person having charge
thereof. If no person is found in his OR HER office, or his OR HER office

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is not known, or he OR SHE has no office, then by leaving the copy,
between the hours of eight in the morning and six in the evening, at
the party's or counsel's residence, if known, with a person of sufficient
age and discretion then residing therein.

How personal service shall be made

1. If a party has not appeared by counsel, then service must be made
upon him.

2. If a party has appeared by counsel, then service upon said party

shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court.

3. To the parties’ authorized representative named in the

appropriate pleading or motion; or

4. By leaving it in his OR HER office with his OR HER clerk or with a

person having charge thereof.

5. If no person is found in his OR HER office, or his OR HER office is

not known, or he OR SHE has no office, then by leaving the copy,
between the hours of eight in the morning and six in the evening,
at the party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein.

It has been held that notice or service made upon a party who is
represented by counsel is a nullity. As a rule, notice to the client and
not to his counsel of record is not notice in law unless for instance
when the court or tribunal orders service upon the party or when the
technical defect in the manner of notice is waived.

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 Service upon the parties’s counsels of record is tantamount to
service upon the parties themselves, but service upon the parties
themselves is not considered service upon their lawyers.

Section 7.Service by mail. — Service by registered mail shall be made

by depositing the copy in the post office in a sealed envelope, plainly
addressed to the party or TO THE PARTY’S counsel at his OR HER
office, if known, otherwise at his OR HER residence, if known, with
postage fully prepaid, and with instructions to the postmaster to
return the mail to the sender after ten (10) days CALENDAR if
undelivered. If no registry service is available in the locality of either
the senders or the addressee, service may be done by ordinary mail.

How service by mail be made?

Service by registered mail shall be made:

By depositing the copy in the post office in a sealed envelope,

plainly addressed to the party or TO THE PARTY’S counsel at his OR HER
office, if known, otherwise at his OR HER residence, if known, with
postage fully prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) days CALENDAR if undelivered. If
no registry service is available in the locality of either the senders or the
addressee, service may be done by ordinary mail.

Section 8.Substituted service. — If service of pleadings, motions,

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

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MODES OF SERVICE
1. Personally

2. By registered mail

3. Substituted service – This mode is availed of only where there

is failure to effect service personally or by mail. This failure
occurs when the office and residence of the party or counsel
are unknown (Sec. 8, Rule 13)

Substituted service is effected by delivering the copy to the clerk

of court, with proof of failure of both personal service and service by
mail.
If another mode of service is used other than personal service, the
service must be accompanied by a written explanation why the service
or filing was not done personally.
Section 9. Service by electronic means and facsimile . — Service by
electronic means and facsimile shall be made if the party concerned
consents to such modes of service. Service by electronic means shall be
made by sending an e-mail to the party’s or counsel’s electronic mail
address, or through other electronic means of transmission as the parties
may agree on, or upon direction of the court. Service by facsimile shall
be made by sending a facsimile copy to the party’s or counsel’s given
facsimile number. (n)

What is the mechanics in service by electronic means and facsimile?

Service by electronic means and facsimile shall be made:

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 (a) If the party concerned consents to such modes of service.
(b) Service by electronic means shall be made by sending an e-mail
to the party’s or counsel’s electronic mail address, or

(c) Through other electronic means of transmission as the parties

may agree on, or upon direction of the court.

(d) Service by facsimile shall be made by sending a facsimile copy

to the party’s or counsel’s given facsimile number. (n)

Based on the foregoing provision, one thing is clear is that service

by electronic means is possible only if the party concerned, plaintiff or
defendant, consents or agrees to such mode of service.

Section 10. Presumptive service. — There shall be presumptive notice to

a party of a court setting if such notice appears on the records to have
been mailed at least twenty (20) calendar days prior to the scheduled
date of hearing and if the addressee is from within the same judicial
region of the court where the case is pending, or at least thirty (30)
calendar days if the addressee is from outside the judicial region. (n)

When there is presumptive service of notice to a party of a court setting?

Under the above provision, there shall be presumptive notice to a

party of a court setting:

1. If such notice appears on the records to have been mailed at

least twenty (20) calendar days prior to the scheduled date of
hearing.
2. And if the addressee is from within the same judicial region of
the court where the case is pending, or

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 3. At least thirty (30) calendar days if the addressee is from outside
the judicial region. (n)

Section 11. Change of electronic mail address or facsimile number. —

A party who changes his or her electronic mail address or facsimile
number while the action is pending must promptly file, within five (5)
calendar days from such change, a notice of change of e-mail address or
facsimile number with the court and serve the notice on all other parties.
Service through the electronic mail address or facsimile number of a
party shall be presumed valid unless such party notifies the court of any
change, as aforementioned. (n)

Section 12. Electronic mail and facsimile subject and title of pleadings
and other documents. — The subject of the electronic mail and facsimile
must follow the prescribed format: case number, case title and the
pleading, order or document title. The title of each electronically-filed or
served pleading or other document, and each submission served by
facsimile shall contain sufficient information to enable the court to
ascertain from the title:

(a) the party or parties filing or serving the paper,

(b) nature of the paper,

(c) the party or parties against whom relief, if any, is sought, and (d) the
nature of the relief sought. (n)

Section 13. Service of judgments, final orders, or resolutions. —

Judgments, final orders or resolutions shall be served either
personally or by registered mail. UPON EX PARTE MOTION OF ANY
PARTY IN THE CASE, A COPY OF THE JUDGMENT, FINAL ORDER, OR
RESOLUTION MAY BE DELIVERED BY ACCREDITED COURIER AT THE
EXPENSE OF SUCH PARTY. When a party summoned by publication
has failed to appear in the action, judgments, final orders or
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resolutions against him OR HER shall be served upon him OR HER also
by publication at the expense of the prevailing party.

How Service of judgments, final orders, or resolutions may be effected?

Judgments, final orders or resolutions shall be served either

1. Personally or

2. By registered mail.

3. UPON EX PARTE MOTION OF ANY PARTY IN THE CASE, A COPY

OF THE JUDGMENT, FINAL ORDER, OR RESOLUTION MAY BE
DELIVERED BY ACCREDITED COURIER AT THE EXPENSE OF SUCH
PARTY.

When a party summoned by publication has failed to appear in

the action, judgments, final orders or resolutions against him
OR HER shall be served upon him OR HER also by publication at
the expense of the prevailing party.

Section 14. Conventional service or filing of orders, pleadings and other

documents.– Notwithstanding the foregoing, the following orders,
pleadings, and other documents must be served or filed personally or by
registered mail when allowed, and shall not be served or filed
electronically, unless express permission is granted by the Court:

(a) Initiatory pleadings and initial responsive pleadings, such as an

answer;

(b) Subpoenae, protection orders, and writs;

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(c) Appendices and exhibits to motions, or other documents that are not
readily amenable to electronic scanning may, at the option of the party
filing such, befiled and served conventionally; and

(d) Sealed and confidential documents or records. (n)

What are the orders, pleadings, and other documents which must
be served or filed personally or by registered mail, unless express
permission is granted by the Court:

(a) Initiatory pleadings and initial responsive pleadings, such as an

answer;

(b) Subpoenae, protection orders, and writs;

(c) Appendices and exhibits to motions, or other documents that are not
readily amenable to electronic scanning may, at the option of the party
filing such, befiled and served conventionally; and

(d) Sealed and confidential documents or records. (n)

Section 15.Completeness of service. — Personal service is complete

upon actual delivery. Service by ordinary mail is complete upon the
expiration of ten (10) CALENDAR days after mailing, unless the court
otherwise provides. Service by registered mail is complete upon
actual receipt by the addressee, or after five (5) CALENDAR days from
the date he OR SHE received the first notice of the postmaster,
whichever date is earlier. Service by accredited courier is complete
upon actual receipt by the addressee, or after at least two (2) attempts to
deliver by the courierservice, or upon the expiration of five (5) calendar
days after the first attempt to deliver, whichever is earlier.

Electronic service is complete at the time of the electronic transmission

of the document, or when available, at the time that the electronic
notification of service ofthe document is sent. Electronic service is not
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effective or complete if the party serving the document learns that it did
not reach the addressee or person to be served.

Service by facsimile transmission is complete upon receipt by the other

party, as indicated in the facsimile transmission printout. (10a)

Section 16. Proof of filing. — The filing of a pleading or ANY OTHER

COURT SUBMISSION shall be proved by its existence in the record of
the case.

(a) If the PLEADING OR ANY OTHER COURT SUBMISSION is not in

the record, but is claimed to have been filed personally, the
filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of
the same;

(b) IF THE PLEADING OR ANY OTHER COURT SUBMISSION WAS

filed by registered mail, THE FILING SHALL BE PROVEN by the
registry receipt and by the affidavit of the person WHO MAILED
IT, containing a full statement of the date and place of DEPOSIT
OF the mail in the post office in a sealed envelope addressed to
the court, with postage fully prepaid, and with instructions to
the postmaster to return the mail to the sender after ten (10)
CALENDAR days if not delivered. (n)

(c) If the pleading or any other court submission was filed through
an accredited courier service, the filing shall be proven by an
affidavit of service of the person who brought the pleading or other
document to the service provider, together with the courier’s
official receipt and document tracking number.

(d) If the pleading or any other court submission was filed by

electronic mail, the same shall be proven by an affidavit of
electronic filing of the filing party accompanied by a paper copy of
the pleading or other document transmitted or a written or stamped
311
 acknowledgment of its filing by the clerk of court. If the paper
copy sent by electronic mail was filed by registered mail,
paragraph (b) of this Section applies.

(e) If the pleading or any other court submission was filed through
other authorized electronic means, the same shall be proven by an
affidavit of electronic filing of the filing party accompanied by a
copy of the electronic acknowledgment of its filing by the court.
(12a)

Section 17. Proof of Service. — Proof of personal service shall consist

of a written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full statement
of the date, place and manner of service. If the service is by

(a)Ordinary mail - Proof thereof shall consist of an affidavit of the

person mailing of facts showing compliance with section 7 of this
Rule.

(b) Registered mail - Proof shall be made by THE affidavit

MENTIONED ABOVE and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee.

(c) Accredited courier service. – Proof shall be made by an affidavit

of service executed by the person who brought the pleading or paper
to the service provider, together with the courier’s official receipt or
document tracking number.

(d) Electronic mail, facsimile, or other authorized electronic means of

transmission – Proof shall be made by an affidavit of service executed
by the person who sent the e-mail, facsimile, or other electronic
transmission, together with a printed proof of transmittal.

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Section 18. Court-issued orders and other documents. — The court may
electronically serve orders and other documents to all the parties in the
case which shall have the same effect and validity as provided herein. A
paper copy of the order or other document electronically served shall be
retained and attached to the record of the case. (n)

HOW TO PROVE SERVICE (BAR 2011)

1. Proof of personal service shall consist of the written admission of
the party served. It may also be proven by the official return of
the server, of the affidavit of the party serving, containing full
information of the date, place and manner of service (Sec. 13,
Rule 13)

2. If the service is by ordinary mail, proof thereof shall consist of the

affidavit of the person mailing of the facts showing compliance
with (Sec. 7)

3. Accredited courier service. – Proof shall be made by an affidavit of

service executed by the person who brought the pleading or paper
to the service provider, together with the courier’s official receipt
or document tracking number.

4. Electronic mail, facsimile, or other authorized electronic means of

transmission – Proof shall be made by an affidavit of service
executed by the person who sent the e-mail, facsimile, or other
electronic transmission, together with a printed proof of
transmittal.

Section 19. Notice of lis pendens. — In an action affecting the title or

the right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his OR HER answer,

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may record in the office of the registry of deeds of the province in
which the property is situated notice of the pendency of the action.
Said notice shall contain the names of the parties and the object of
the action or defense, and a description of the property in that
province affected thereby. Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the property affected
thereby, be deemed to have constructive notice of the pendency of
the action, and only of its pendency against the parties designated by
their real names.

The notice of lis pendens hereinabove mentioned may be cancelled

only upon order of the court, after proper showing that the notice is
for the purpose of molesting the adverse party, or that it is not
necessary to protect the rights of the rights of the party who caused it
to be recorded.

Notice of Lis Pendens, defined

A notice of lis pendens is an announcement to the whole world
that a particular real property is in litigation, serving as a warning that
one who acquires an interest over said property does so at his own risk,
or that he gambles on the result of the litigation over the said property.
The filing of a notice of lis pendens charges all strangers with a
notice of the particular litigation referred to therein and, therefore, any
right they may thereafter acquire on the property is subject to the
eventuality of the suit. Xxxx (Cunanan v. Jjumping Jap trading Corp.,
G.R. No. 173834, April 24, 2009).
When is notice of lis pendens available?
In an action affecting the title or the right of possession of real
property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer:

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 1. Record in the office of the registry of deeds of the province in
which the property is situated notice of the pendency of the
action.

2. Said notice shall contain the names of the parties and the
object of the action or defense, and a description of the
property in that province affected thereby.
What is the effect of annotation of the notice of lis pendens?

Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action, and
only of its pendency against the parties designated by their real names.

What are the grounds for the cancellation of the notice of lis pendens?

The notice of lis pendens hereinabove mentioned may be

CANCELLED only upon order of the court, after proper showing that the
notice is for:

1. The purpose of molesting the adverse party, or

2. That it is not necessary to protect the rights of the rights of the

party who caused it to be recorded.

Dual effect of lis Pendens

The filing of lis pendens has a dual effect:
1. To keep the property subject matter of the litigation within the
power of the court until the entry of the final judgment in
order to prevent the defeat of the final judgment by successive
alienations; and

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 2. To bind a purchaser, bona fide or otherwise, of the property
subject of the litigation to the judgmentthat the court will
subsequently promulgate. (Vashdeo Gagoomal vs. Spouses
Ramon and Natividad Villacorta, G.R. No. 192813, January 18,
2012)
What are the actions where lis pendens is proper?
Relative thereto, a notice of lis pendens is proper in the following
actions and their concomitant proceedings:
1. An action to recover possession of real estate;
2. An action to quiet title thereto;
3. An action to remove cloud thereon;
4. An action for partition; and
5. Any other proceedings of any kind in court directly affecting
title to the land or the use or occupation thereof or the
buildings thereon.

Thus, a notice of lis pendens is only valid and effective when it

affects title over or right of possession of a real property. (Gagoomal vs.
Villacorta)
When is lis pendens deemed cancelled?
A notice of lis pendens shall be deemed cancelled only upon the
registration of a certificate of the clerk of court in which the action or
proceeding was pending stating the manner of disposal thereof if there
was a final judgment in favour of the defendant or the action was
disposed of terminating finally all the rights of the plaintiff over the
property in litigation. (AFP mutual Benefits Asso. Inc v. CA, G.R. No.
104769, March 3, 2007, 327 SCRA 203).

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Remedy in case of denial of registration of lis pendens by the Register
of Deeds.
1. Appeal to the Land Registration Authority En Consulta within
five (5) days under Sec. 117 of PD No. 1529 otherwise known as
the Property Registration Decree.

2. Petition for Review with the Court of Appeals within fifteen

(15) days under Rule 43 of the Rules of Court;

3. Motion for Reconsideration within fifteen (15) days under Rule

52 of the Rules of Court.

4. Petition for Review on Certiorari to the Supreme Court within

fifteen (15) days under Rule 45 of the Rules of Court.
Lis pendens distinguished from litis pendencia
Lis pendens should not be confused with litis pendencia because
in some instances litis pendencia is sometime referred as lis pendens,
and they differ in the following manner, to wit:
1. Lis pendens is available as a remedy in case a real property is the
subject of an action affecting the title or the right of possession of
real property, wherein the plaintiff and the defendant, when
affirmative relief is claimed in his answer may record in the office
of the registry of deeds of the province in which the property is
situated a notice of the pendency of the action; while litis
pendencia is a Latin term, which literally means “a pending suit”
and is variously referred to in some decision as lis pendens and
auter action pendant. As a ground for the dismissal of a civil
action, it refers to the situation where two actionsd are pending
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 between the same parties for the same cause of action, so that
one of them becomes unnecessary and vexatious.” (PNB vs.
Gateway Property Holdings, Inc., G.R. No. 181485, February 15,
2012).

2. The purpose of lis pendens are as follows: (1) to keep the property
subject matter of the litigation within the power of the court until
the entry of the final judgment in order to prevent the defeat of
the final judgment by successive alienations; and (2) to bind a
purchaser, bona fide or otherwise, of the property subject of the
litigation to the judgment that the court will subsequently
promulgate; while the purpose of litis pendencia is a ground for
the dismissal of the action under Sec. 1, e of Rule 16;

3. Lis pendens is made through notice to be filed with the Register of

Deeds where the property is located; while litis pendencia is
availed of by way of a motion to dismiss and filed with the court
where the case is pending;

4. In case of denial of lis pendens by the Register of Deeds, the

remedy of the aggrieved party is to appeal within five (5) days to
the Land Registration Authority En Consulta under Sec. 11 of PD
1529; while if the motion to dismiss on the ground of litis
pendencia, the remedy is to file the answer within the remaining
period but in no case less than five (5) days under Sec. 4, Rule 16;

5. Notice of lis pendens can be filed after the filng of the action in
court, but before finality of judgment, while a motion to dismiss
based on litis pendencia should be filed before the filing of a
responsive pleading.

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 Sample form:

“NOTICE OF LIS PENDENS

To: The Register of Deeds
Iloilo City

Sir:

Please register a notice of lis pendens of Civil Case No. 12345 on

TCT No. 6789 of the Registry of Deeds for the City of Iloilo, covering a
parcel of land which is involved in the above-entitled case now pending
before the Regional Trial Court of Iloilo City. Copy of the Complaint is
hereto attached as part and parcel of this Notice of Lis Pendens.

The land involved in the above entitled case is covered by TCT No.
6789 is described in said title as follows:

(copy of the technical description of the land)

May we therefore request your Honorable Office to make the

proper annotation of the above notice of lis pendens at the back of the
said title.

Iloilo City, Philippines, June 27, 2019.”

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 RULE 14

SUMMONS

Section 1.Clerk to issue summons. — Unless the complaint is on its face

dismissible under Section 1, Rule 9, the court shall, within five (5)
calendar days from receipt of the initiatory pleading and proof of
payment of the requisite legal fees, direct the clerk of court to issue the
corresponding summons to the defendants.

When can the summons be issued?

The current Rules provide that unless the complaint is on its face
dismissible under Section 1, Rule 9, the court shall, within five (5)
calendar days from receipt of the initiatory pleading (complaint or third,
fourth party complaint) and proof of payment of the requisite legal fees,
direct the clerk of court to issue the corresponding summons to the
defendants.

Pursuant to the above provision, instead of issuing summons to

the defedant, the court may motu proprio dismiss the case, if it finds
that any of the grounds provided for under Section 1, Rule 9 of the
Rules of Court exists. For ready reference, Section 1, Rule 9, provides:
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 “Section 1. Defenses and objections not pleaded. – Defenses and
objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or
the evidence on record:
(1) That the court has no jurisdiction over the subject matter,
(2) That there is another action pending between the same parties
for the same cause, or
(3) That the action is barred by a prior judgment or
(4)By statute of limitations, the court shall dismiss the claim.”

Nature of Summons
Summons is the writ by which the defendant is notified of the
action brought against him. Fundamentally, it is a notice to the
defendant that a particular person named therein has commenced an
action against him in a particular court. An important part of that notice
is a direction to the defendant that he must answer the complaint
within a specified period, and that unless he so answers, plaintiff will
take judgment by default and may be granted the relief applied for.
(sec. 2, Rule 14, Rules of Court).
When shall summons be served?

The court shall:

1. Within five (5) calendar days from receipt of the initiatory

pleading and proof of payment of the requisite legal fees,

2. Direct the clerk of court to issue the corresponding summons to

the defendants.

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Issuance of summons; not discretionary:
The issuance of summons is not discretionary on the part of the
court or the clerk of court but is a mandatory requirement. The
provisions of Sec. 1 of Rule 14 direct that the clerk of court shall issue
the corresponding summons to the defendant upon (a) the filing of the
complaint, and (b) the payment of the requisite legal fees. The use of
the term “shall” leaves no doubt as to the mandatory character of the
issuance of summons.

Service of summons is the means by which the court acquires

jurisdiction over his person. This process is for the benefit of the
defendant, and is intended to afford the latter an opportunity to be
heard on the claim against him.
Kinds of summons
1. Original summons – is the writ issued by the clerk of court upon
receipt of the complaint and the payment of the requisite docket
and other lawful fees by which the defendant is notified of the
action brought against him and requiring him to file his responsive
pleading within the period prescribed by the rules.

2. Alias summons – is a writ issued by the clerk of court when the

original summons has been lost or not duly served without fault
on the part of the plaintiff.
Compare summons (Rule 14) and subpoena Rule (21)
1. Summons is a writ issued by the clerk of court which the
defendant is notified of the action brought against him; while
subpoena is a writ issued by the judge by which a person is

322
 required to appear and testify before the court or in an
investigation or to bring documents or books to the court;

2. There are two kinds of summons which are original and alias
summons; while there are two kinds of subpoena which are
subpoena duces tecum and ad testificandum;

3. The purpose of the summons is to acquire jurisdiction over the

person of the defendant or the res; while the purpose of
subpoena is to require a person to appear and testify before the
court or in an investigation or to bring documents or books to the
court;

4. Remedy in case of defective service of summons is to file an

Answer and raise as an affirmative defense that the court has no
jurisdiction over the person of the defending party; while in
subpoena, the remedy is to file a motion to quash subpoena;

5. Summons is issued upon receipt by the clerk of court of the

complaint and the corresponding payment of docket and other
lawful fees or when the original summons has not been seved or
was lost without the fault of the plaintiff, while in subpoena it is
issued during the trial.
Purpose of summons in actions in personam:
Since it is a writ by which the defendant is notified of the action
brought against him, the most basic purpose of summons, whatever be
the nature of the action involved, is to satisfy the requirements of
procedural due process. Take note, however, in an action in personam,

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the purpose of summons is not only to comply with due process but
also to acquire jurisdiction over the person of the defendant.
Purpose of summons in actions in rem and quasi in rem:
In actions in rem and quasi in rem, the court is not concerned with
the acquisition of jurisdiction over the person of the defendant. In
these actions, it is the acquisition by the court of jurisdiction over the
res which principally matters.

Voluntary appearance by the defendant:

It has been previously remarked that a basic rule to remember is
that the acquisition of jurisdiction over the person of the defendant is
required in an action in personam. But how is this jurisdiction acquired?
It has been consistently ruled that jurisdiction over the person of
the defendant is acquired through coercive process, generally by the
service of summons issued by the court, or through the defendant’s
voluntary appearance or submission to the court.
BAR QUESTION
Are the rules on summons under Rule 14 of the Rules of Court
applicable equally in actions before the Regional Trial Courts as well as
in the Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts?
Suggested answer
The rules on summons are equally applicable to the courts
mentioned. The Rules of Court provide that the procedure in the
Municipal Trial Courts shall be the same as in the Regional Trial Court,

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except: (a) where a particular provision expressly or impliedly applies
only to either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure (Sec. 1, Rule 5).

Section 2.Contents. — The summons shall be directed to the

defendant, signed by the clerk of court under seal and contain

(a) The name of the court and the names of the parties to the action;

(b) WHEN AUTHORIZED BY THE COURT UPON EX PARTE MOTION, AN

AUTHORIZATION FOR THE PLAINTIFF TO SERVE SUMMONS TO THE
DEFENDANT;

© A direction that the defendant answer within the time fixed by

these Rules;

(d) A notice that unless the defendant so answers plaintiff will take
judgment by default and may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad

litem if any, shall be attached to the original and each copy of the
summons. (3a)

What are the contents of summons?

The summons shall be directed to the defendant, signed by the

clerk of court under seal and contain the following:

(a) The name of the court and the names of the parties to the
action;

(b) WHEN AUTHORIZED BY THE COURT UPON EX PARTE MOTION,

AN AUTHORIZATION FOR THE PLAINTIFF TO SERVE SUMMONS TO THE
DEFENDANT;

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 (c) A direction that the defendant answer within the time fixed by
these Rules;

(d) A notice that unless the defendant so answers plaintiff will

take judgment by default and may be granted the relief applied for.

(d) A copy of the complaint and order for appointment of

guardian ad litem if any, shall be attached to the original and each copy
of the summons. (3a)

Sample form:
SUMMONS
TO: MR ROEL GO
GREETINGS:
You are hereby required within thirty (30) calendar days after the
service of this Summons upon you, to file with this Court and serve on
the plaintiff your answer to the complaint, copy of which is attached
together with annexes. You are reminded of the provision of the IBP-
COA Memorandum on Policy Guidelines dated March 12, 2002 to
observe restraint in filing a motion to dismiss and instead allege the
grounds thereof as defences in the Answer. If you fail to answer within
the time fixed, the plaintiff will take judgment by default and may be
granted the relief applied for in the complaint.
WITNESS my hand under the seal of the Court, this ____ day of
June, 2019.
Atty. Stephen James C. Justalero

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 Clerk of Court

Section 3.By whom served. — The summons may be served by the

sheriff, his deputy, or other proper court officer, or AND IN CASE OF
FAILURE OF SERVICE OF SUMMONS BY THEM, THE COURT MAY
AUTHORIZE THE PLAINTIFF – TO SERVE SUMMONS – TOGETHER WITH
THE SHERIFF.

In cases where summons is to be served outside the judicial region of the

court where the case is pending, the plaintiff shall be authorized to cause
the service of summons.

If the plaintiff is a juridical entity, it shall notify the court, in writing,

and name its authorized representative therein, attaching a board
resolution or secretary’s certificate thereto, as the case may be, stating
that such representative is duly authorized to serve the summons on
behalf of the plaintiff.

If the plaintiff misrepresents that the defendant was served summons,

and it is later proved that no summons was served, the case shall be
dismissed with prejudice, the proceedings shall be nullified, and the
plaintiff shall be meted appropriate sanctions.

If summons is returned without being served on any or all the

defendants, the court shall order the plaintiff to cause the service of
summons by other means available under the Rules.

Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice. (3a)

Purpose of service of summons

1. To acquire jurisdiction over the person of the defendant;

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 2. To notify the defendant that an action has been commenced so
that he may be given an opportunity to be heard in the claim
against him.

By whom summon is served

While it is the clerk of court who issues the summons, it is not the
clerk of court who serves the same. Under the Rules, the summons may
be served by the sheriff, his deputy, or other proper court officer, or for
justifiable reasons, by any suitable person authorized by the court
issuing the summons. The summons may be served by the sheriff, his
deputy, or other proper court officer, or AND IN CASE OF FAILURE OF
SERVICE OF SUMMONS BY THEM, THE COURT MAY AUTHORIZE THE
PLAINTIFF – TO SERVE SUMMONS – TOGETHER WITH THE SHERIFF. In
cases where summons is to be served outside the judicial region of the
court where the case is pending, the plaintiff shall be authorized to cause
the service of summons.

Cases when summons may be served by the plaintiff

1. In case of failure on the part of the sheriff, his deputy or other

proper court officer, the court may authorize the plaintiff to serve
the summons, together with the sheriff.

2. In cases when summons is to be served outside the judicial region

of the court, the plaintiff shall be authorized to cause the service of
summons.

3. In case summons is returned without being served on any or all the

defendants, the court shall order the plaintiff to cause the service of
summons by other means available under the Rules.

What is the rule if the plaintiff is a juridical entity?

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 If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein, attaching a board
resolution or secretary’s certificate thereto, as the case may be, stating
that such representative is duly authorized to serve the summons on
behalf of the plaintiff.

Is there sanction in case of plaintiff’s misrepresentation?

If the plaintiff misrepresents that the defendant was served

summons, and it is later proved that no summons was served, the case
shall be dismissed with prejudice, the proceedings shall be nullified, and
the plaintiff shall be meted appropriate sanctions.
Consequence of failure to comply with the court’s order

Failure to comply with the order, (on the part of the plaintiff to
serve summons by other means available under the Rules) without
justifiable reasons, shall cause the dismissal of the initiatory pleading
without prejudice. This is an additional ground for the dismissal of
initiatory pleading for failure to comply with the order of the court.

What does the Rule mean when it say “serve summons by other means
available under the Rules?

It simply means that the service of summons may be made by (1)

substituted service of summons, (2) by service of summons by
publication, (3) service consistent with international conventions, or (4)
extraterritorial service of summons)

Section 4. Validity of summons and issuance of alias summons —

Summons shall remain valid until duly served, unless it is recalled by the
court. In case of loss or destruction of summons, the court may, upon
motion, issue an alias summons.

There is failure of service after unsuccessful attempts to personally serve

the summons on the defendant in his or her address indicated in the

329
complaint. Substituted service should be in the manner provided under
Section 6 of this Rule.

Validity of Summons

Summons shall remain valid until it is duly served, or it is recalled

by the court which issued said summons.

When can the court issue an alias summons?

Summons shall remain valid until duly served, unless it is recalled

by the court. In case of LOSS or DESTRUCTION of summons, the
court may, upon motion, issue an alias summons.

Alias Summons

An alias summons is one issued when the original has not

produced its effect because of a DEFECT IN FORM or IN THE MANNER
OF SERVICE, and when issued supersedes the first writ. Under Sec. 5,
Rule 14, an alias summons is issued upon demand by the plaintiff when
the original summons is returned without being served on any or all of
the defendants or if the summons has been lost.

To sum up, the court may issue alias summons, based on the
Rules and jurisprudence, upon motion, on the following instances:

1. There is defect in form;

2. There is defect in the service;
3. In case of its loss;
4. In case of its destruction.

When there is failure of service

There is failure of service after unsuccessful attempts to personally

serve the summons on the defendant in his or her address indicated in

330
the complaint. Substituted service should be in the manner provided
under Section 6 of this Rule.

Section 5. Service in person on defendant. — Whenever practicable,

the summons shall be served by handling a copy thereof to the
defendant in person AND INFORMING THE DEFENDANT THAT HE OR
SHE IS BEING SERVED, OR, IF HE OR SHE refuses to receive and sign for
it, BY LEAVING THE SUMMONS WITHIN THE VIEW AND IN THE
PRESENCE OF THE DEFENDANT.

How service in person on defendant being done?

Whenever practicable, the summons shall be served upon the

person of the defendant:
1. By HANDING a copy thereof to the defendant in person and
informing him or her that he or she is being served with said
summons, or

2. If he refuses to receive and sign for it, by LEAVING THE

SUMMONS WITHIN THE VIEW AND IN THE PRESENCE OF THE
DEFENDANT.”

Purpose of personal service of summons: Preferred mode:

Perosnal service of summons most effectively ensures that the

notice desired under the constitutional requirement of due process is
accomplished – the essence of personal service is the handling or
tendering of a copy of the summons to the defendant himself,
wherever he may be found, that is, wherever he may be, provided he is
in the Philippines.

In an action in personam personal service is a preferred mode: how?

331
 In an action strictly in personam, personal service on the
defendant is the preferred mode of service, that is, by handling a copy
of the summons to the defendant in person and informing him or her
that he or she is being served, and if he refuses, for excusable reasons,
cannot be served with the summons within a reasonable period, then
substituted service can be resorted to.

The modes of service must be strictly followed in an action in personam

Service of summons is the means of acquiring jurisdiction over the

person of the defendant in action in personam and a means by which
the due process requirement of notice of the Constitution is complied
with. The rules require not just a mere service of summons. The modes
of service must be strictly followed in order that the court may acquire
jurisdiction over the person of the defendant. (Umandap vs. Sabia Jr.,
339 SCRA 243).

Section 6. Substituted service. — If, for justifiable causes, the

defendant cannot be served PERSONALLY AFTER AT LEAST THREE (3)
ATTEMPTS ON TWO (2) DIFFERENT DATES, service may be effected:

(a) By leaving copies of the summons at the defendant's residence TO

A PERSON AT LEAST EIGHTEEN (18) YEARS OF AGE AND OF SUFFICIENT
DISCRETION residing therein, or

(b) By leaving the copies OF THE SUMMONS at defendant's office or

regular place of business with some competent person in charge
thereof. A COMPETENT PERSON INCLUDES, BUT IS NOT LIMITED TO,
ONE WHO CUSTOMARILY RECEIVES CORRESPONDENCES FOR THE
DEFENDANT.

(c) By leaving copies of the summons, if refused entry upon making his
or her authority and purpose known, with any of the officers of the
homeowners’ association or condominium corporation, or its chief

332
security officer in charge of the community or the building where the
defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail

address, if allowed by the court. (7a)

How can substituted service of summons be effected?

Section 6, Rule 14, provides:

“Section 6. Substituted service. — If, for justifiable causes, the

defendant cannot be served PERSONALLY AFTER AT LEAST THREE (3)
ATTEMPTS ON TWO (2) DIFFERENT DATES, service may be effected:

(a) By leaving copies of the summons at the defendant's residence TO A

PERSON AT LEAST EIGHTEEN (18) YEARS OF AGE AND OF SUFFICIENT
DISCRETION residing therein, or

(b) By leaving the copies OF THE SUMMONS at defendant's office or

regular place of business with some competent person in charge
thereof. A COMPETENT PERSON INCLUDES, BUT IS NOT LIMITED TO,
ONE WHO CUSTOMARILY RECEIVES CORRESPONDENCES FOR THE
DEFENDANT.

(c) By leaving copies of the summons, if refused entry upon making his
or her authority and purpose known, with any of the officers of the
homeowners’ association or condominium corporation, or its chief
security officer in charge of the community or the building where the
defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail

address, if allowed by the court. “

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 Only if service in person cannot be made promptly can the
process server resort to substituted service.
In our jurisdiction, for substituted service of summons to be valid,
it is necessary to establish the following:

1. The impossibility of service of summons within a reasonable

time, PERSONALLY AFTER AT LEAST THREE (3) ATTEMPTS ON
TWO (2) DIFFERENT DATES, service may be effected:

2. The efforts exerted to locate the person to be served; and

3. (a) By leaving copies of the summons at the defendant's

residence TO A PERSON AT LEAST EIGHTEEN (18) YEARS OF AGE
AND OF SUFFICIENT DISCRETION residing therein, or

4. (b) By leaving the copies OF THE SUMMONS at defendant's

office or regular place of business with some competent person
in charge thereof. A COMPETENT PERSON INCLUDES, BUT IS
NOT LIMITED TO, ONE WHO CUSTOMARILY RECEIVES
CORRESPONDENCES FOR THE DEFENDANT.

5. (c) By leaving copies of the summons, if refused entry upon

making his or her authority and purpose known, with any of
the officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be found;
and

6. (d) By sending an electronic mail to the defendant’s electronic

mail address, if allowed by the court. “

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BAR 2016

Teddy filed against Buboy an action for rescission of a contract for

the sale of a commercial lot. After having been told by the wife of
Buboy that her husband was out of town and would not be back until
after a couple of days, the sheriff requested the wife to just receive the
summons in behalf of her husband. The wife acceded to the request,
received the summons and a copy of the complaint, and signed for the
same.
 
            (a) Was there a valid service of summons upon Buboy? Explain
your answer briefly.
 
            (b) If Buboy files a motion to dismiss the complaint based on the
twin grounds of lack of jurisdiction over his person and prescription of
the cause of action, may he be deemed to have voluntarily submitted
himself to the jurisdiction of the court? Explain your answer briefly.

Suggested answer

(a)  No, there was no valid service of summons upon Buboy.

 
    The Supreme Court has held that in order that there will be valid
substituted service of summons, the sheriff must have exerted diligent
efforts to effect personal service of summons within a reasonable time.
    Here there were no such diligent efforts on the part of the sheriff
since he effected substituted service on his very first try.  Hence there
was no valid service of summons upon Buboy.
 

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BAR 2017

Juan sued Roberto for specific performance. Roberto knew that

Juan was going to file the case so he went out of town and temporarily
stayed in another city to avoid service of summons. Juan engaged the
services of Sheriff Matinik to serve the summons but when the latter
went to the residence of Roberto, he was told by the caretaker thereof
that his employer no longer resides at the house. The caretaker is a
high school graduate and is the godson of Roberto. Believing the
caretaker's story to be true, Sheriff Matinik left a copy of the summons
and complaint with the caretaker. Was there a valid substituted service
of summons? Discuss the requirements for a valid service of summons.
(5%)

Suggested answer

Yes, there was a valid service of summons. In a case involving

similar facts, the Supreme Court held that there was a valid substituted
service of summons since the defendant was engaged in deception to
thwart the orderly administration of justice.   

Here the defendant was also engaged in deception since he

temporarily stayed in another city to avoid service of summons and his
caretaker falsely said he no longer resides in the house.  (Sagana v.
Francisco, 2 Oct 2009). 

The operative fact that triggers the application of substituted

service is when “for justifiable cause, the defendant cannot be served

336
within a reasonable time.” “Within a reasonable time contemplates a
period of time longer than that demarcated by the word “prompt” and
presupposes that a prior attempt at personal service, within a
justifiable time frame as would be necessary to bring the defendant
within the jurisdiction of the court, had failed. (Laus v. Court of Appeals,
219 SCRA 688).

Where the substituted service of summons has been validly

served, its validity is not affected by the defendant’s failure to actually
receive the summons from the person with whom the summons had
been left. It is immaterial that the defendant does not in fact receive
actual notice (Montalban v. Maximo, 22 SCRA 1070). The rules on
substituted service do not require that plaintiff or the server to verify
that the copy of the summons left with the proper person in the
defendant’s residence or office was delivered to the defendant by the
recipient.

Section 7.Service upon entity without juridical personality. — When

persons associated in an entity without juridical personality are sued
under the name by which they are generally or commonly known,
service may be effected upon all the defendants by serving upon any
one of them, or upon the person in charge of the office or place of
business maintained in such name. But such service shall not bind
individually any person whose connection with the entity has, upon
due notice, been severed before the action was FILED.

To whom the summons shall be served in case of an entity without

juridical personality?

When persons associated in an entity without juridical personality

are sued under the name by which they are generally or commonly
known, service may be effected upon:

1. All the defendants by serving upon ANY ONE of them, or

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 2. Upon the person in charge of the office or place of business
maintained in such name.

Example

ABC Corporation, not being duly registered with the appropriate

government agency concerned, is an entity without juridical
personality, and managed and operated by A, B and C. If said ABC
Corporation is being sued for Breach of Contract under the name ABC
Corporation, summons may be served upon any one of the defendant,
or upon the person in charge of the office or place of business maitaijed
by such ABC Corporation.

What is the effect of the service of summons to an entity without

juridical personality if a person is no longer connected with it before
the action is filed?

Such service shall not bind individually any person whose

connection with the entity has, upon due notice, been severed before
the action was brought.

Simply put, Section 7 specifies the person upon whom service

shall be made when persons associated in an entity without a juridical
personality are sued. This provision is a necessary consequence of Sec.
15, Rule 3. Under this provision, when persons not organized as
juridical entity enter into a transaction, they may be sued in connection
with such trasanction under the name by which they are generally or
commonly known. Sec. 15 however, does not include an authority to
the entity to sue under the common name.

Section 8.Service upon prisoners. — When the defendant is a prisoner

confined in a jail or institution, service shall be effected upon him OR
HER by the officer having the management of such jail or institution

338
who is deemed deputized as a special sheriff for said purpose. THE
JAIL WARDEN SHALL FILE A RETURN WITHIN FIVE (5) CALENDAR DAYS
FROM SERVICE OF SUMMONS TO THE DEFENDANT.

To whom the summons shall be served in case of a prisoner?

When the defendant is a prisoner confined in a jail or institution,

service shall be effected upon:

1. Upon him by the OFFICER having the management of such jail

or institution who is deemed deputized as a special sheriff for
said purpose.

The service of the summons is made upon the prisoner himself

but served by the officer having the management of the jail or
institution where the prisoner is confined. Said officer is deputized by
the Rules as a special sheriff for purposes of service of summons. Under
the former Rules, serving on the officer having the management of the
jail or institution may effect service upon the prisoner. This means that
service upon the officer will be deemed service upon the prisoner. This
is not so under the present Rules where the service must be made upon
the defendant prisoner himself and not the officer, the latter being now
deputized sheriff who shall serve the summons upon the prisoner.

2. The new Rules also provide that the Jail Warden sshall file a
return within five (5) calendar days from service of summons to
the defendant.

Example

Leila is a defendant in civil case for Annulment of Title, and she is

a detention prisoner at the BJMP. Service of summons may be effected
upon her through the jail warden or the officer having the management
of such BJMP, who is deemed deputized as special sheriff for such

339
purpose. The jail warden shall file a return within five (5) calendar days
from service of summons to the defendant.

Section 9. Service consistent with international conventions. — Service

may be made through methods which are consistent with established
international conventions to which the Philippines is a party. (n)

The Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, more
commonly known or called the Hague Service Convention, is a
multilateral treaty which was adopted in The Hague, The Netherlands,
on November 15, 1965 by member states of the Hague Conference on
Private International Law. It came into existence to give litigants a
reliable and efficient means of serving the documents on parties living,
operating or based in another country. The provisions of the convention
apply to service of process in civil and commercial matters but not
criminal matters. Also, Article 1 states that the Convention shall not
apply if the addres of the person to be served with the document is not
known.

Procedure

The Hague Service Convention established a more simplified

means for parties to effect service in other contracting states. Under the
Convention, each contracting state is required to designate a central
authority to accept incoming request for service. A judicial officer who
is competent to serve process in the state of origin is permitted to send
request for service directly to the central authority of the state where
service is to be made. Upon receiving the request, the central authority
in the receiving state arranges for servie in a matter permitted within the
receiving state, typically through a local court. Once service is effected,
the central authority sends a certificate of service to the judicial officer
who made the request. Parties are required to use three standardized
forms: a request for service, a summary of the proceedings (similar to
summons), and a certificate of service.

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 The Hague Convention does not prohibit a receiving state from
permitting international service by methods otherwise authorized by
domestic law. For example, a state could allow service directly by mail
or personal service. States which permit parties to use these alternative
means of service make a separate designation in the documents they file
upon ratifying or acceding to the Convention.
Guidelines on the Implementation of the Service Convention in the
Philippines (SC En Banc, Administrative Order No. 251 – 2020), which
took effect in October, 2020.

Section 2. Application of the Hague Service Convention. The

Hague Service Convention shall apply in the Philippines, provided the
following conditions are present:

1. A document is to be transmitted from one State Party for service to

another State Party;
2. The addres of the intended recipient in the receiving State Pary is
known;
3. The document to be served is a judicial document; and
4. The document to be served relates to a civil or commercial matter.

Section 10. Service upon minors and incompetents. — When the

defendant is a minor, insane or otherwise an incompetent person, service
of summons shall be made upon him or her personally AND on his or
her legal guardian if he or she has one, or if none, upon his or her
guardian ad litem whose appointment shall be applied for by the
plaintiff. In the case of a minor, service shall be made on his or her
parent or guardian. (10a)

To whom the summons shall be served in case of a minor or

incompetent?

When the defendant is a minor, insane or otherwise an

incompetent, service shall be made:

341
 1. Upon him personally AND on his legal guardian if he has one, or

2. If none his guardian ad litem whose appointment shall be

applied for by the plaintiff.

3. In the case of a minor, service may also be made on his father

or mother or guardian.

To be considered insane or incompetent, a judicial declaration is

NOT required by the Rules. It is enough that the person be alleged to be
incompetent. The summons shall be served not only upon the minor,
insane or incompetent personally. Sec. 10 provides: “and on his legal
guardian if he has one.” If the minor or incompetent has no legal
guardian, the plaintiff must obtain the appointment of a guardian ad
litem for him. In the case of a minor, service may also be served on his
father or mother instead of on the legal guardian.

Section 11. Service upon spouses. — When spouses are sued jointly,
service of summons should be made to each spouse individually. (n)

What is the rule on service of summons upon the spouses?

The current Rules provide that when spouses are sued jointly,
service of summons should be made to each spouse individually. (n)

It follows, therefore, that if the spouses are sued individually or

separately, service of summons should only be made upon such spouse.

Section 12. Service upon domestic private juridical entity. — When the
Defendant is a corporation, partnership or association organized under
the laws of the Philippines with a juridical personality, service may be
made on the president, managing partner, general manager, corporate

342
secretary, treasurer, or in-house counsel of the corporation wherever
they may be found, or in their absence or unavailability, on their
secretaries.

If such service cannot be made upon any of the foregoing persons, it

shall be made upon the person who customarily receives the
correspondence for the defendant at its principal office.

In case the domestic juridical entity is under receivership or liquidation,

service of summons shall be made on the receiver or liquidator, as the
case may be.

Should there be a refusal on the part of the persons above-mentioned to

receive summons despite at least three (3) attempts on two (2) different
dates, service may be made electronically, if allowed by the court, as
provided under Section 6 of this Rule. (11a)

To whom summons shall be served in case of a domestic private

juridical entity?

When the defendant is a corporation, partnership or association

organized under the laws of the Philippines with a juridical personality,
service may be made on the:

1. President,
2. Managing partner,
3. General manager,
4. Corporate secretary,
5. Treasurer, or
6. In-house counsel.
7. In their absence or unavailability, on their secretaries.
8. If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily

343
 receives correspondence for the defendant at its principal
office.

It is submitted that the previous rulings of the Supreme Court on

the exclusivity of the persons who would receive summons still hold
true. Thus “As a general rule, service of summons must be served on
the person named in the Rules. Thus, it has been ruled that service on
persons other than those mentioned is invalid and does not bind the
corporation.” (Delta Motor Sales Corp. v. Mangosing, 70 SCRA 598)
As presently worded, Sec. 12 of Rule 14 is more specific. As earlier
discussed, service upon an agent of the corporation is no longer
permitted. The designation of persons authorized to accept service of
summons is limited to those enumerated in Sec. 12 of Rule 14. Hence,
service of summons upon the branch manager of the defendant did not
enable the court to acquired jurisdiction over the person of said
defendant (E.B. Villarosa & Partner Ltd. V. Benito, G.R. No. 136426
August 6, 1999).
This enumeration has been held to be limited to the persons
enumerated and summons cannot be served upon any other person.
The case of E.B. Villarosa &Partner Ltd. V. Benito, 312 SCRA 65 clearly
considers the enumeration as “restricted, limited and exclusive.”
What is the rule with respect to juridical entity under receivership or
liquidation?
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the RECEIVER or
LIQUIDATOR, as the case may be.

What is the rule in case the persons named above refused to receive
summons?

344
 Should there be a refusal on the part of the persons above-
mentioned to receive summons despite at least three (3) attempts on two
(2) different dates, service may be made electronically, if allowed by the
court, as provided under Section 6 of this Rule. (11a)

Bar question
“A” sued XX Corporation (XXC), a corporation organized under the
Philippine laws, for specific performance when the latter failed to
deliver T-shirts to the former as stipulated in the contract of sale.
Summons was served on the corporation’s cashier and director. Would
you consider service of summons on either officer sufficient?
Suggested answer:
The service of summons to the corporation’s cashier and director
is not sufficient. When the defendant is a corporation organized under
the laws of the Philippines with a juridical personality, service of
summons is to be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel (Sec. 11,
Rule 14). The cashier and the director do not belong to the enumerated
persons under Sec. 11, Rule 14 of the Rules of Court.
What is the remedy of the plaintiff in case service of summons cannot
be made to the officers of the corporation in an action in personam?

The remedy of the plaintiff in case of failure to serve the

summons to the officers of a domestic corporation in an action in
personam is to amend his complaint and asked for the issuance of a
writ of preliminary attachment thereby converting the action into an
action quasi in rem where service of summons by publication is allowed
in order to acquire jurisdiction over the res and the acquisition of
jurisdiction is merely for observance of due process.

345
Section 13. Duty of counsel of record. — Where the summons is
improperly served and a lawyer makes a special appearance on behalf of
the defendant to, among others, question the validity of service of
summons, the counsel shall be deputized by the court to serve summons
on his or her client. (n)

State the rule on the duty of counsel of record where summons is

improperly served

Where the summons is improperly served and a lawyer makes a

special appearance on behalf of the defendant to, among others, question
the validity of service of summons, the counsel shall be deputized by the
court to serve summons on his or her client. (n)

The above provision deals with a situation wherein summons was

improperly served upon the defendant, either because “personal service
to the defendant” was not in accordance with Section 5 hereof or the
substituted service of summons was not in compliance with Section 6,
hereof.

As a matter of course, the counsel for the defendant would not a

special appearance purposely to question the validity of the service of
summons. If the court believes that indeed there was improper service of
summons upon the defendant, instead of dismissing the case, the court
would be deputized the court the said counsel for the defendant to serve
the summons on his or her client.

Section 14. Service upon foreign private juridical entities. — When the
defendant is a foreign private juridical entity which has transacted or is
doing business in the Philippines, as defined by law, service may be
made on its resident agent designated in accordance with law for that
purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers, agents,
directors or trustees within the Philippines.

346
If the foreign private juridical entity is not registered in the Philippines,
or has no resident agent but has transacted or is doing business in it, as
defined by law, such service may, with leave of court, be effected
outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the

foreign country with the assistance of the department of foreign affairs;

(b) By publication once in a newspaper of general circulation in the

country where the defendant may be found and by serving a copy of the
summons and the court order by registered mail at the last known
address of the defendant;

(c) By facsimile; ( A method or device for transmitting documents,

drawings, photographs, or the like, by means of radio or telephone for
exact rerproduction elsewhere.)

(d) By electronic means with the prescribed proof of service; or

(e) By such other means as the court, in its discretion, may direct. (12a)

Service of summons upon a foreign private juridical entity which

has transacted business in the Philippines may be made on the
following:

(a) Its resident agent designated in accordance with law for that
purpose, or if there be no such agent,

(b) On the government official designated by law to that effect, or

(c) On any of its officers or agents within the Philippines.

(d) On its directors or trustee.

347
 If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is doing
business in it, as defined by law, such service may, with leave of court,
be effected outside of the Philippines through any of the following
means:

(a) By personal service coursed through the appropriate court in the

foreign country with the assistance of the department of foreign
affairs. This is in consonance with The Hague Service Convention
and made applicable to the Philippines through an SC En Banc
A.O. No. 251-2020, effective on October, 2020, pursuant to the
“Guidelines on the Implementation of the Service Convention in
the Philippines.”

(b) By publication once in a newspaper of general circulation in the

country where the defendant may be found and by serving a copy of
the summons and the court order by registered mail at the last known
address of the defendant;

(c) By facsimile. (Please take not that service of summons by Facsimile

is applicable only in case the defendant is a Foreign Private Juridical
Entities. Hence, it has no application when the defendant is a
Domestice Private Juridical Entity, wherein summons may be served,
among other things, by electronic means but not by facsimile.

(d) By electronic means with the prescribed proof of service; or

(e) By such other means as the court, in its discretion, may direct. (12a)

BAR 2015

348
 Circe filed with the RTC a complaint for the foreclosure of real
estate mortgage against siblings Scylla and Charybdis, co-owners of the
property and cosignatories to the mortgage deed. The siblings
permanently reside in Athens, Greece. Circe tipped off Sheriff Pluto that
Scylla is on a balikbayan trip and is billeted at the Century Plaza Hotel in
Pasay City. Sheriff Pluto went to the hotel and personally served Scylla
the summons, but the latter refused to receive summons for Charybdis
as she was not authorized to do so. Sheriff Pluto requested Scylla for
the email address and fax number of Charybdis which the latter readily
gave. Sheriff Pluto, in his return of the summons, stated that "Summons
for Scylla was served personally as shown by her signature on the
receiving copy of the summons. Summons on Charybdis was served
pursuant to the amendment of Rule 14 by facsimile transmittal of the
summons and complaint on defendant's fax number as evidenced by
transmission verification report automatically generated by the fax
machine indicating that it was received by the fax number to which it
was sent on the date and time indicated therein."

Circe, sixty (60) days after her receipt of Sheriff Pluto's return,
filed a Motion to Declare Charybdis in default as Charybdis did not file
any responsivepleading.

a.)  Should the court declare Charybdis in default?  

Scylla seasonably filed her answer setting forth therein as a defense

that Charybdis had paid the mortgage debt.

      b.) On the premise that Charybdis was properly declared in default,
what is the effect of Scylla's answer to the complaint?  
 

349
Suggested answers (Note: the suggested answer should be properly
modified in the light of the current amendments in the 2019 Rule of
Civil Procedure)
 
a) No, the court should not declare Charybdis in default.

Under the Rules of Court, the amendment of Rule 14 allowing

service of summons by facsimile transmittal refers only to service of
summons upon a foreign private juridical entity under Section 12 of
Rule 14, not to a non-resident defendant under Section 15 of Rule 14. 
Service of summons by facsimile cannot be effected under Section 15
unless leave of court was obtained specifically permitting service by
facsimile transmittal.

Here the defendant is not a foreign private juridical entity but a

non-resident defendant and no leave of court was obtained to serve
summons by facsimile.  

Hence there was no valid service of summons and thus the court

could not declare Charybdis in default. 
 
            b)  The effect of Scylla’s answer to the complaint is that the court
shall try the case against both Scylla and Charybdis upon the answer
filed by Scylla.
           
Under Section 3(c) of Rule 9, when a pleading asserting a claim
states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment
upon the evidence presented. 
           

350
 Here there was a common cause of action against Scylla and
Charybdis since both were co-signatories to the mortgage deed.  
           
Hence the court should not render judgment by default against
Charybdis but should proceed to try the case upon the answer filed and
the evidence presented by Scylla.     
 
  The term “foreign private juridical entity” used in the present
Rules is broad enough to include not only foreign corporations but
other foreign juridical entities as well. If they have transacted business
in the Philippines, they may be served with summons in accordance
with Sec. 12 of Rule 14. The present Rules no longer require a foreiegn
entity to be doing business in the Philippines. It is enough that it has
transacted business in the country. “Doing business” implies a
continuity of commercial dealings and arrangements and the
performance of acts or works or the exercise of some of the functions
normally incident to the purpose or object of its organization.

Foreign corporations are allowed under Sec. 123 of the

Corporation Code to transact business in the Philippines after it shall
have obtained a license to transact business in the country and a
certificate of authority from the appropriate government agency.
Among other requirements for the issuance of a license, the Securities
and Exchange Commission shall require a condition precedent that such
corporation file with the Commission a written power of attorney
designating some person who must be a resident of the Philippines on
whom any summons and other legal processes may be served in all
actions or other legal proceedings against such corporation, and
consenting that service upon such resident agent shall be admitted and
held as valid as if served upon the duly authorized officers of the
foreign corporation at its home office. (Sec. 128, Corporation Code). A
resident agent may be either an individual residing in the Philippines or

351
a domestic corporation lawfully transacting business in the Philippines
(Sec. 127 of the Corporation Code).

When a foreign corporation has duly designated a person

authorized to receive service of summons, service must be made upon
the person thus designated. That desingaiton is exclusive and service
upon any other person in inefficacious (H.B. Zachry Company
International v. Court of Appeals, 232 SCRA 329).

The issuance of a license and authority to a foreign corporation is

by the terms of Sec. 123 of the Corporation Code, a condition sine qua
non to its right to transact business in the Philippines. It is evident that
this license is not however, necessary if it does not transact business in
the Philippines.

If it transact business in the Philippines without the required

license, it shall not be permitted to maintain or intervene in any action,
suit or proceedings in any court or administrative agency in te
Philippines, but such corporation may be sued or proceeded against
before Philippine courts or administrative tribunals on any valid cause
of action recognized under Philippine Laws (Sec. 133, Corporation
Code). In other words, it can be sued but it cannot sue in the
Philippines.

Section 15. Service upon public corporations. — When the defendant is

the Republic of the Philippines, service may be effected on the Solicitor
General; in case of a province, city or municipality, or like public
corporations, service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct.

To whom summons shall be served in case of public corporations?

When the defendant is the Republic of the Philippines, service

may be effected on the following:
352
 1. If the defendant is the Republic of the Philippines, to the
Solicitor General;

2. In case of a province, to the Provincial Governor;

3. In case if a city, to the City Mayor; or

4. In case of a municipality, to the Municipal Mayor.

5. Like public corporations, service may be effected on its

executive head, or

6. On such other officer or officers as the law or the court may

direct. (15)

As a rule, the State may not be sued without its consent. Such
consent is granted either expressly or impliedly. Section 13 applies
when the Republic of the Philippines or any of its local political
subdivision is sued. If it is the Republic that is sued and such suit is
pursuant to a statutory consent, service of summons shall be made
upon the officer designated by the statute by which the Republic allows
itself to be sued. Where the statute does not designate the pfficer upon
whom summns shall be served, Sec. 13, Rule 14 shall apply.

When the defendant is the Republic of the Philippines, service is

made upon the Solicitor General. The Solicitor General is the “principal
law officer and legal defender of the Govenrment.” The office of the
Solicitor General represents the Government of the Philippines, its
agencies and intrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of
lawyers (Secs. 34-35, Chapter 12, Title III, Book IV, Administrative Code
of 1987)

353
 Where the defendant is a province, city or municipality, summons
may be served upon the executive head. With the respect to the
province, the term “executive head” obviously refers to a provincial
governor who is the chief executive of the province (Sec. 465, Local
Government Code of 1991); with respect to the city, the executive head
is the City Mayor described under Sec. 455 of the Local Gvoernment
Code of 1991 as the chief executive, and with respect to a municipality,
the executive head is the municipal mayor who is the chief executive of
the municipality under Sec. 444 of the Local Gvoernment Code of 1991.

Section 16. Service upon defendant whose identity or whereabouts are

unknown. — In any action where the defendant is designated as an
unknown owner, or the like, or whenever his or her whereabouts are
unknown and cannot be ascertained by diligent inquiry, within ninety
(90) calendar days from the commencement of the action, service may,
by leave of court, be effected upon him or her by publication in a
newspaper of general circulation and in such places and for such time as
the court may order.

Any order granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) calendar days after notice, within which
the defendant must answer.

How can the summons be served in case defendant’s identity or

whereabouts are unknown?

When the defendant is designated as an unknown owner or

whenever his whereabouts are unknown and cannot be ascertained by
diligent inquiry, within ninety (90) calendar days from the
commencement of the action, Sec. 16, Rule 14 allows service of
summons by publication in a newspaper of general circulation and in
such places and for such time as the court may order.

354
 Does this rule apply to both actions in personam and in rem or
quasi in rem? To put it in another way: Will summons by publication
enable the court to acquire jurisdiction over the person of the
defendant even in an action in personam?

Significantly, the phraseology of Sec. 16 makes no distinction

between an action in personam on the one hand and an action in rem
or quasi in rem on the other. Said section allows summons by
publication “in any action.” This phrase was not found in the provisions
of Sec. 16, Rule of the former Rules. Inevitably, the defendant described
in Sec. 14 of Rule 14 may be summoned by publication in either an
action in rem or in personam. The present provision however, seems
not to be in harmony with the conventional wisdom on the matter and
with previous rulings of the Supreme Court which held that summons
by publication is not sufficient for the court to acquire jurisdiction over
the person of the defendant in an action in personam i.e., jurisdiction
over the person cannot be acquired by summons by publication
(Pantaleon v. Asuncion, 105 Phil.761 [1959]; Citizen’s Surety &
Insurance Co. Inc. v. Melencio-Herrera, 38 SCRA 369)

Section 17. Extraterritorial service. — When the defendant does not

reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under Section 6; or as provided for in
international conventions to which the Philippines is a party; or by
publication in a newspaper of general circulation in such places and for
such time as the court may order, in which case a copy of the summons
and order of the court shall be sent by registered mail to the last known
address of the defendant, or IN ANY OTHER MANNER the court may

355
deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) calendar days
after notice, within which the defendant must answer.

Extra-territorial Service of Summons

Extra territorial service of summons in Sec. 15, (now Sec. 17) Rule
14 applies when the following requisites concur:
1. When the defendant is a non-resident

2. He is not found in the Philippines;

3. The action against him is either in rem or quasi in rem (Jose V.

Boyon, 414 SCRA 216)

Actions involved in extraterritorial service of summons

The specific actions, which are either in rem or quasi in rem that
will justify the application of extraterritorial service of summons in
actions involving a non-resident are:

1. Action that affect the personal status of the plaintiff;

2. Action which relates to, or the subject matter of which is

property within the Philippines, in which the defendant claims
a lien or interest, actual or contingent;

3. Actions in which the relief demanded consists, wholly or in

part, in excluding the defendant from an interest in property
located in the Philippines; and

356
 4. When property of the defendant has been attached within the
Philippines. Philippines.

The phraseology of the rule indicates that a fundamental concept

to be remembered in extraterritorial service of summons is that it does
not apply to a defendant who is a resident of the Philippines. It does
not also apply to an action in personam.

Thus, extraterritorial service of summons applies only where the

action is in rem, that is, an action against the thing itself instead of
against the person, or in an action quasi in rem, where an individual is
named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or loan burdening the property. The
rationale for this is that in rem and quasi in rem actions, jurisdiction
over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction
over the res.

Examples
a. A case for collection of a sum of money (action in personam)
b. A case for Foreclosure of Real Estate Mortgage (Quasi in rem)
c. An action for annulment of marriage (in rem)
d. Action for Partition and Accounting (quasi in rem) [Valmonte v.
court of Appeals, 252 SCRA 92)
How can extraterritorial service of summons be done?
Extra-territorial service of summons can be done in the following
manner, to wit:
(a)By personal service as under Section 6; or

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 (b) By publication in a newspaper of general circulation in such
places and for such time as the court may order, in which a
copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant;

(c)As provided for in International Conventions to which the

Philippine is a party; or

(d) In any other manner, the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) calendar days after notice,
within which the defendant must answer.

Point of clarification?

Does the phrase “in any other means” in the Extraterritorial Srrvice,
include service of summons by (1) Facsimile; and (2) By electronic
means with the prescribed proof of service?

Remedy of attachment against non-resident defendants not found in

the Philippines

Following established principles, jurisdiction over the person of

the defendant would no longer be required when there is a writ of
preliminary attachment of the defendant’s properties because the suit
has assumed the character of an action quasi in rem which merely
requires jurisdiction over the res. After availing of extraterritorial
service of summons, the suit can then proceed despite the absence of

358
the defendant because in this case, the property of the defendant
would now be the object of the judicial power.

BAR 2017

Tristan filed a suit with the RTC of Pasay against Arthur King
and/or Estate of Arthur King for reconveyance of a lot declared in the
name of Arthur King under TCT No. 1234. The complaint alleged that
"on account Arthur King's residence abroad up to the present and the
uncertainty of whether he is still alive or dead, he or his estate may be
served with summons by publication." Summons was published and
nobody filed any responsive pleading within sixty (60) days therefrom.
Upon motion, defendants were declared in default and judgment was
rendered declaring Tristan as legal owner and ordering defendants to
reconvey said lot to Tristan.

Jojo, the court-designated administrator of Arthur King's estate,

filed a petition for annulment of judgment before the CA praying that
the decision in favor of Tristan be declared null and void for lack of
jurisdiction. He claims that the action filed by Tristan is an action in
personam and that the court did not acquire jurisdiction over
defendants Arthur King and/or his estate. On the other hand, Tristan
claims that the suit is an action in rem or at least an action quasi in
rem. Is the RTC judge correct in ordering service of summons by
publication? Explain.

Suggested answer

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 Yes, the RTC judge is correct in ordering service of summons by
publication.

            Under S15 R14, extraterritorial service, which includes service by

publication, may be availed of in actions the subject of which is
property within the Philippines in which the defendant has or claims a
lien or interest or in which the relief demanded consists in excluding
the defendant from any interest therein.  

            Here the action for reconveyance has for its subject a real
property in the Philippines in the defendant’s name and in which the
relief sought is to annul the defendant’s title and vest it in the plaintiff.  

            While Jojo is correct is saying that the action for reconveyance
is in personam (Republic v. CA, 315 SCRA 600, 606), the test of whether
an action is covered by S15 R14 is not its technical characterization
as in rem or quasi in rem but whether it is among those mentioned in
S15 R14.  (See Baltazar v. Court of Appeals, 168 SCRA 354, 363). 

Section 18. Residents temporarily out of the Philippines. — When any

action is commenced against a defendant who ordinarily resides within
the Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding
Section.

Service upon a resident temporarily out of the country

Under Sec. 18, Rule 14, “When any action is commenced against a
defendant who ordinarily resides within the Philippines, but who is

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temporarily out of it, service may, by leave of court, be also effected
out of the Philippines, as under the preceding section.”

The ‘preceding section’ referred to in Sec. 18 is necessarily Sec. 17

on extraterritorial service of summons. Significantly, one of the modes
of service of summons under Sec. 17 is “by publication in a newspaper
of general circulation…” Summons by publication, therefore, applies to
a resident of the Philippines who is temporarily out of the country.

Specifically, service of summons upon a resident of the Philippines

who is temporarily out of the country, may, by leave of court be
effected out of the Philippines as under the rules on extraterritorial
service in Sec. 18 of Rule 14. This means that the service of summons
may possible be any of the following modes, unless rules otherwise:

1. By personal service as in Sec. 6 of Rule 14;

2. By publication in a newspaper of general circulation together

with a registered mailing of a copy of the summons and the
order of the court to the last known address of the defendant;
or

3. By any manner the court may deem sufficient (Sec. 17, Rule 14)

Like in the case of an unknown defendant or one whose

whereabouts are unknown, the rule affecting residents who are
temporarily out of the Philippines applies in ANY ACTION.

Let it be noticed that summons by publication may be effected

against the defendant because publication is one of the modes of
summons under Sec. 17 of Rule 14. But this rule authorizing summons
by publication appears superfluous and unnecessary. Without such
provision, a resident defendant temporarily out of the Philippines may
still be served through the substituted service under Sec. 17 of Rule 14.

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Section 19. Leave of court. — Any application to the court under this
Rule for leave to effect service in any manner for which leave of court is
necessary shall be made by motion in writing, supported by affidavit of
the plaintiff or some person on his behalf, setting forth the grounds for
the application.

When leave of court necessary?

Any application to the court under this Rule for leave to effect
service in any manner for which leave of court is necessary shall be
made by motion in writing, supported by affidavit of the plaintiff or
some person on his behalf, setting forth the grounds for the
application.

Section 20. Return. — Within thirty (30) calendar days from issuance of
summons by the clerk of court and receipt thereof, the sheriff or process
server, or person authorized by the court, shall complete its service.
Within five (5) calendar days from service of summons, the server shall
file with the court and serve a copy of the return to the plaintiff’s
counsel, personally, by registered mail, or by electronic means
authorized by the Rules. Should substituted service have been effected,
the return shall state the following:

(1) The impossibility of prompt personal service within a period of thirty

(30) calendar days from issue and receipt of summons;

(2) The date and time of the three (3) attempts on at least (2) two
different dates to cause personal service and the details of the inquiries
made to locate the defendant residing thereat; and

(3) The name of the person at least eighteen (18) years of age and of
sufficient discretion residing thereat, name of competent person in
charge of the defendant’s office or regular place of business, or name of

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the officer of the homeowners’ association or condominium corporation
or its chief security officer in charge of the community or building
where the defendant may befound. (4a)

What should be stated in the return should substituted service have

been effected?

(1) The impossibility of prompt personal service within a period of thirty

(30) calendar days from issue and receipt of summons;

(2) The date and time of the three (3) attempts on at least (2) two
different dates to cause personal service and the details of the inquiries
made to locate the defendant residing thereat; and

(3) The name of the person at least eighteen (18) years of age and of
sufficient discretion residing thereat, name of competent person in
charge of the defendant’s office or regular place of business, or name
of the officer of the homeowners’ association or condominium
corporation or its chief security officer in charge of the community or
building where the defendant may befound. (4a)

Section 21. Proof of service. — The proof of service of a summons shall

be made in writing by the server and shall set forth the manner, place,
and date of service; shall specify any papers which have been served
with the process and the name of the person who received the same; and
shall be sworn to when made by a person other than a sheriff or his or
her deputy.

If summons was served by electronic mail, a printout of said e-mail,

with a copy of the summons as served, and the affidavit of the person
mailing, shall constitute as proof of service.

PROOF OF SERVICE

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 When the service has been completed, it is the duty of the server
to serve a copy of the return, personally or by registered mail, to the
plaintiff’s counsel, and shall return the summons to the clerk of court
who issued it. The return, which shall be made within five (5) calendar
days from the completion of the service, shall be accompanied by proof
of service. The proof of service shall be in writing and made by the
server. It shall state therein the manner, place and date of service, shall
specify the papers, which have been served with the summons and the
name of the person who received the same. It need not be sworn to
unless made by a person other than the sheriff or his deputy.

If summons was served by electronic mail, a printout of said e-

mail, with a copy of the summons as served, and the affidavit of the
person mailing, shall constitute as proof of service.

Section 22. Proof of service by publication. — If the service has been

made by publication, service may be proved by the affidavit of the
publisher, editor, business or advertising manager, to which affidavit a
copy of the publication shall be attached and by an affidavit showing the
deposit of a copy of the summons and order for publication in the post
office, postage prepaid, directed to the defendant by registered mail to
his or her last known address.

How proof of service by publication effected?

If the service has been made by publication, service may be proved

by the affidavit of the publisher, editor, business or advertising manager,
to which affidavit a copy of the publication shall be attached and by an
affidavit showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the defendant
by registered mail to his or her last known address.

If the service has been made by publication, service may be

proved by the affidavit of the printer, his foreman or principal clerk, or
of the editor, business or advertising manager, to which affidavit a copy

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of the publication shall be attached. In addition there be an affidavit
showing the deposit of a copy of the summons and order for
publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.

Summons by publication

Summons by publication is authorized by the Rules under the

following instances:
1. In any action where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained with diligent inquiry (Sec. 16, Rule 14)

2. When any action is commenced against a defendant who

ordinarily resides in the Philippines, but who is temporarily out of
it (Sec. 18, Rule 14)

3. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property within
the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been
attached within the Philippines. (Sec. 18, Rule 14)

Strict compliance with the requirements in case of service by

publication: Effect of defective service of summons by mail and
publication.

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 The failure to strictly comply correctly with the requirements of
the rules regarding the e-mailing of copies of the summons and the
order for its publication is a fatal defect in the service of summons
(Rosalino P. Acance, et. al. vs. CA, G.R. 159699 March 16, 2005).

Section 23. Voluntary appearance. — The defendant's voluntary

appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall be deemed a voluntary
appearance. (20a)

It has been previously remarked that a basic rule to remember is

that acquisition of jurisdiction over the person of the defendant is
required in an action in personam

But how is this jurisdiction acquired?

It has been consistently ruled that jurisdiction over the person of

the defendant is acquired through coercive process, generally by the
service of summons issued by the court, or through the defendant’s
voluntary appearance or submission to the court (Republic of the
Philippines v. Domingo, G.R. No. 175299, September 14, 2011)

Stated otherwise, without a valid service of summons, the court

cannot acquire jurisdiction over the defendant, unless the defendant
voluntarily submits himself to the jurisdiction of the court. When the
defendant does not voluntarily submit to the court’s jurisdiciotn or
there is no valid service of summons, any judgment of the court over
the defendant will be null and void for lack of jurisdiction over the
defendant (Manotoc v. Court of Appeals, 499 SCRA 21)

Under the old rule, it was directed that “There is likewise a need
to emphasize that under existing rules, a defending party may file a
motion to dismiss a claim for lack of jurisdiction over his person and
366
add to such ground other grounds for dismissal. The defendant may for
example, include failure to state a cause of action, prescription,
improper venue and other authorized defences and objections under
the Rules, aside from lack of jurisdiction over the person of the
defendant. The addition of such grounds aside from lack of jurisdiction
over the person of the defendant shall not be considered a voluntary
appearance under Sec. 20 of Rule 14.”

The present rules, however, have modified previous rulings and

commentaries, as it provides that “The defendant's voluntary
appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall be deemed a voluntary
appearance.”

Observation
How can a defendant file a Motion to Dismiss on the ground of
“lack of jurisdiction over his person” when under Section 12, Rule 15 of
the 2019 Rules of Civil Procedure, motion to dismiss is a prohibited
motion unless the grounds are (1) That the court has no jurisdiction
over the subject matter; (2) That there is another action pending
between the same parties for the same cause; and (3) That the cause of
action is barred by a prior judgment or by the statute of limitations.
Obviously, “lack of jurisdiction over the person of the defendant” is not
among them, unless the Rules will consider this ground as an additional
ground for a motion to dismiss.
Sample form:
MOTION FOR LEAVE OF COURT TO SERVE SUMMONS BY
PUBLICATIONS

367
 COMES NOW, the plaintiff, through the undersigned counsel and
unto this Honorable Court, most respectfully avers:
1. That on February 8, 2016, copy of the summons was served by
the process server of this Honorable Court to the defendant on
his given address, but defendant is no longer residing on his
given address;
2. That considering that the whereabouts of the defendant is
unknown and this case affects the property of the defendant,
plaintiff most respectfully move with leave of court to serve
summons by publication.

WHEREFORE, plaintiff prays that the summons be served by

publication based on the above reasons.

Such other relief and remedies as may be deemed just and

equitable under the premises are likewise prayed for.

RULE 15

MOTIONS

Section 1.Motion defined. — A motion is an application for relief other

than by a pleading.

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Motion defined

A motion is an application for relief other than by a pleading.

Simply put, a motion, like a motion to dismiss, is not a pleading and it
should not be governed by the rules on pleading, like for instance that
it must be verified or under oath, it needs to comply with certification
against forum shopping.

Section 2.Motions must be in writings. — All motions shall be in

writing except those made in open court or in the course of a hearing
or trial. (2a)

A motion made in open court or in the course of a hearing or trial should

immediately be resolved in open court, after the adverse party is given
the opportunity to argue his or her opposition thereto.

When a motion is based on facts not appearing on record, the court may
hear the matter on affidavits or depositions presented by the respective
parties, but the court may direct the matter be heard wholly or partly on
oral testimony or depositions.

Form of motions

All motions must be in writing. Excepted from this written

requirement are those (a) motions made in open court, and (b) motions
made in the course of a hearing or trial.

The rules that apply to pleadings shall also apply to written

motions with respect to caption, designation, signature, and other
matters of form.

What is the rule regarding motions?

All motions shall be in writing except in the following instances:

1. Those made in open court or

369
 Like a motion for continuance which is usually made in open
court. In like manner, an oral motion that one’s case be called
after the second call, is also an example of a motion made in
open court.

2. In the course of a hearing or trial.

Like a motion to expunge the witness’ answer as being not

responsive to the question, or a motion to direct the witness to
answer a specific question. This is normally done during the
course of the trial.

Section 3.Contents. — A motion shall state the relief sought to be

obtained and the grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)

What are the requirements for a valid written motion?

Except for motion which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall
comply with the following requirements:
1. It must be set for hearing by the applicant;
2. It is required to be heard;
3. The notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least
three (3) days before the date of the hearing, unless the court
for good cause sets the hearing on shorter notice;
4. The notice of hearing shall be addressed to all parties
concerned;

370
 5. It shall specify the time and date of the hearing which must not
be later than ten (10) days after the filing of the motion; and
6. No written motion set for hearing shall be acted upon by the
court without proof of service thereof.
7. To set forth the relief sought to be obtained as well as the
ground to support it.
Section 4. Non-litigious motions. — Motions which the court may act
upon without prejudicing the rights of adverse parties are non-litigious
motions. These motions include:

a) Motion for the issuance of an alias summons;

b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute the
final certificate of sale; and
h) Other similar motions.

These motions shall not be set for hearing and shall be resolved by
the court within five (5) calendar days from receipt thereof. (n)

What are non – litigious motions?

Non-litigious motions are motions which the court may act upon
without prejudicing the rights of adverse parties. These motions
include:

a) Motion for the issuance of an alias summons;

b) Motion for extension to file answer;

371
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to execute
the final certificate of sale; and
h) Other similar motions.

Non Litigious Motion or Ex-parte Motion

An ex-parte motion, on the contrary, is one which does not

require that the parties be heard and which the court may act upon
without prejudicing the rights of the other party. This kind of motion is
not covered by the hearing requirement of the Rules (Sec. 4, Rule 15).
An example of an ex-parte motion is that one filed by the plaintiff
pursuant to Sec. 1 of Rule 18 in which he moves promptly that the case
be set for pre-trial. On the other hand, a motion to dismiss (Rule 16)
and a motion for summary judgment (Rule 35), are litigated motion.

Section 5. Litigious motions. — (a) Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;

372
13) Motion to declare defendant in default; and
14) Other similar motions.

(b) All motions shall be served by personal service, accredited private

courier or registered mail, or electronic means so as to ensure their
receipt by the other party.

(c) The opposing party shall file his or her opposition to a litigious
motion within five (5) calendar days from receipt thereof. No other
submissions shall be considered by the court in the resolution of the
motion.

The motion shall be resolved by the court within fifteen (15) calendar
days from its receipt of the opposition thereto, or upon expiration of the
period to file such opposition. (n)

What are litigious motions?

Litigious motions are motions which require notice to the adverse

party, and trial. Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
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14) Other similar motions.

Additional notes

Hearing of the motion; litigated and ex-parte motions

As a rule, every written motion shall set for hearing by the

applicant except for motion which the court may act upon without
prejudicing the rights of the adverse party. This provision therefore,
establishes the general rule that every written motion is deemed a
litigated motion i.e., one which requires the parties to be heard before
a ruling on the motion is made by the court.

Kinds of Motion

1. Motion ex-parte – is a motion made without the presence or a

notification to the other party because the question generally
presented is not debatable.

Example: Motion for postponement; Motion to set case for pre-

trial; Motion for extention of time to file pleading.

2. Motion of course – It is a motion where the movant is entitled to

the relief or remedy sought as a matter of discretion on the part
of the court.

3. Litigated Motion – It is a motion which is made with notice to the

adverse party given an opportunity to oppose.

Example: Motion to dismiss; Motion for leave to file Demurrer to

Evidence; Motion to quash; Motion for new trial; Motion for
reconsideration.

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Section. 6. Notice of hearing on litigious motions; discretionary . — The
court may, in the exercise of its discretion, and if deemed necessary for
its resolution, call a hearing on the motion. The notice of hearing shall
be addressed to all parties concerned, and shall specify the time and date
of the hearing.

It is not hard to see the reason why the setting of a hearing of a

litigated motion is really discretionary on the part of the court because
the court can already resolve the motion based on the “motion” filed by
the movant and the “comments or opposition” thereto filed by the
opposing party.

Section 7. Proof of service necessary. — No written motion shall be

acted upon by the court without proof of service thereof, pursuant to
Section 5(b) hereof.

Effect of failure to set the motion for hearing, to include a notice of

hearing and to serve the motion (Secs. 4, 5, and 6 of Rule 15)

The Court has consistently held that a motion which does not
meet the requirements of Secs. 6 and 7 of Rule 15 of the Rules of Court
on hearing and notice, is a worthless piece of paper which the clerk of
court has no right to receive and which the trial court has no authority
to act upon. Service of a copy of a motion containing a notice of the
time and the place of hearing of that motion is mandatory requirement,
and the failure of movants to comply with these requirements renders
their motions fatally defective (Vette Industrial Sales Co., Inc. v. Cheng,
50 SCRA 532).

The well-settled rule is that a motion which fails to comply with

the requirements under Secs. 6 and 7 of Rule 15 of the Rules of Court is
a mere scrap of paper (Neri v. De la Pena, 457 SCRA 538). It is pro forma
presenting no question which the court could decide. If filed, such
motion is not entitled to judicial cognizance and does not stop the

375
running of the period for the filing the requisite pleading. A motion
which does not comply with the rules on motion is considered pro
forma and thus, will be treated as one filed merely to delay the
proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87).

Summary of the effects of failure to comply with Secs. 6 and 7 of Rule

15:

1. It is considered as a mere worthless piece of paper;

2. The clerk has no right to receive it;
3. The court has no right to act upon;
4. It is considered as a mere pro-forma motion;
5. It is considered as not filed;
6. It produces no legal effect;
7. It is a ground for the denial of the motion;
8. It presents no question which the court could decide;
9. It will not toll the running of the prescriptive period to appeal
or file pleadings.
Sample forms

NOTICE OF HEARING

TO: BRANCH CLERK OF COURT

RTC BRANCH 32, ILOILO CITY

GREETINGS:

Please submit the foregoing motion for the consideration

and approval of the Honorable Court on February 8, 2019 art 8:30
in the morning.

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 ATTY ROEL VILLA-GO

CC: ATTY STEPHEN JAMES C. JUSTALERO

Counsel for the Plaintiff
Iloilo City

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to Plaintiff’s

counsel by registered mail due to time and distance constraints,
and for lack of the undersigned’s staff who can serve the same in
person.

Section 8. Motion day. — Except for motions requiring immediate

action, where the court decides to conduct hearing on a litigious motion,
the same shall be set on a Friday. (7a)

Section 9. Omnibus motion. — Subject to the provisions of Section 1 of

Rule 9, a motion attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not so
included shall be deemed waived.

The omnibus motion rule (BAR 2010, 2011)

The rule is a procedural principle which requires that every

motion that attacks a pleading, judgment, order or proceeding shall
include all grounds then available, and all objections not so included
shall be deemed waived. Since the rule is subject to the provisions of
Sec.1 of Rule 9, the objections mentioned therein are not deemed
waived even if not included in the motion. These objections are: (a)
that the court has no jurisdiction over the subject matter; (b) that there
is another action pending between the same parties for same cause
(litis pendencia); (c) that the action is barred by prior judgment (res

377
judicata); and (d) that the action is barred by the statute of limitation or
prescription (Sec 1, Rule 9, Rules, Rules of Court).

A motion to dismiss is a typical example of a motion subject to

the omnibus motion rule, since a motion to dismiss attacks a complaint
which is a pleading. Following the omnibus motion rule, if a motion to
dismiss is filed, then the motion must invoke all objections which are
available at the time of the filing of said motion. If the objection which
is available at the time is not included in the motion, that ground is
deemed waived. It can no longer be invoked as an affirmative defense
in the answer which the movant may file following the denial of his
motion to dismiss.

Section 10. Motion for leave. — A motion for leave to file a pleading or
motion shall be accompanied by the pleading or motion sought to be
admitted.

What are the requirements in filing a motion for leave?

A motion for leave to file a pleading or motion shall be

accompanied by:

1. The pleading or

2. The motion sought to be admitted. (n)

For example, if the defendant files a Motion for Leave for File
Demurrer to Evidence, he shall attach to said motion his Demurrer to
Evidence.

In a similar way, in the filing of a Motion to Amend Complaint,

the plaintiff must attach to his motion a copy of the said Amended
Complaint.

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Section 11. Form. — The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, designation, signature, and
other matters of form.

Section. 12. Prohibited motions. — The following motions shall not be

allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of

the claim;

2) That there is another action pending between the same

parties for the same cause; and

3) That the cause of action is barred by a prior judgment or

4) by the statute of limitations;

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court’s action on the affirmative

defenses;

(d) Motion to suspend proceedings without a temporary restraining order

or injunction issued by a higher court;

(e) Motion for extension of time to file pleadings, affidavits or any other
papers, except a motion for extension to file an answer as provided by
Section 11, Rule 11; and

(f) Motion for postponement intended for delay, except if it is based on

acts of God, force majeure or physical inability of the witness to appear
and testify. If the motion is granted based on such exceptions, the

379
moving party shall be warned that the presentation of its evidence must
still be terminated on the dates previously agreed upon.

A motion for postponement, whether written or oral, shall, at all times,

be accompanied by the original official receipt from the office of the
clerk of court evidencing payment of the postponement fee under
Section 21(b), Rule 141, to be submitted either at the time of the filing
of said motion or not later than the next hearing date. The clerk of court
shall not accept the motion unless accompanied by the original receipt.
(n)

What are the Prohibited motions?

The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of

the claim;
2) That there is another action pending between the same
parties for the same cause;

3) That the cause of action is barred by a prior judgment or

(4) By the statute of limitations;

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the court’s action on the affirmative

defenses;

380
(d) Motion to suspend proceedings without a temporary restraining
order or injunction issued by a higher court;

(e) Motion for extension of time to file pleadings, affidavits or any other
papers, except a motion for extension to file an answer as provided by
Section 11, Rule 11; and

(f) Motion for postponement intended for delay, except if it is based on

acts of God, force majeure or physical inability of the witness to appear
and testify. If the motion is granted based on such exceptions, the
moving party shall be warned that the presentation of its evidence
must still be terminated on the dates previously agreed upon.

A motion for postponement, whether written or oral, shall, at all times,

be accompanied by the original official receipt from the office of the
clerk of court evidencing payment of the postponement fee under
Section 21(b), Rule 141, to be submitted either at the time of the filing
of said motion or not later than the next hearing date. The clerk of
court shall not accept the motion unless accompanied by the original
receipt. (n)

Prohibited motions under the Revised Rules on Summary Procedure

The following motions shall NOT be allowed (Sec. 1, 1991 Revised

Rules on Summary Procedure:

1. Motion to dismiss the complaint;

2. Motion to quash a criminal complaint or information;

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 Exception: If the ground is lack of jurisidiction over the subject
matter or the failure to comply with the rule requiring referral
to the Lupon for conciliation;

3. Motion for a bill of particulars;

4. Motion for new trial;

5. Motion for reconsideration of a judgment;

6. Motion for reopening of trial;

7. Motion for extension of time to file pleading, affidavits or any

other paper;

8. Motion to declare the defendant in default; and

9. Dilatory motions for postponement

Prohibited motions in the Rules of Amparo and Habeas Data

The following motions are PROHIBITED:

1. Motion to dismiss;
2. Motion of extension of time to file opposition, affidavits,
position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Motion to declare defendant in default; and
6. Motion for reconsideration of interlocutory orders or interim
relief orders.

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Prohibited motions under the Rule of Procedure for Small Claims Cases
as amended

The following motions shall NOT be allowed in the cases covered

by the Rules of Procedure for Small Claims Cases:

1. Motion to dismiss the complaint;

2. Motion for a bill of particulars;
3. Motion for new trial;
4. Motion for reconsideration of a judgment;
5. Motion for reopening of trial;
6. Motion for extension of time to file pleadings, affidavits or any
other paper;
7. Motion to declare the defendant in default; and
8. Dilatory motions for postponements.

Prohibited motions under the Rule of Procedure for Environmental

Cases

1. Motion to dismiss the complaint;

2. Motion for a bill of particulars;
3. Motion for extension of time to file pleadings, except to fiel
answer, the extension not to excced 15 days;
4. Motion to declare the defendant in default.

Section. 13. Dismissal with prejudice. — Subject to the right of appeal,

an order granting a motion to dismiss or an affirmative defense that the
cause of action is barred by a prior judgment or by the statute of
limitations; that the claim or demand set forth in the plaintiff’s pleading
has been paid, waived, abandoned or otherwise extinguished; or that the
claim on which the action is founded is unenforceable under the
provisions of the statute of frauds, shall bar the refiling of the same
action or claim.

What is the rule in case of Dismissal with prejudice?

383
 Subject to the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the:

1. Cause of action is barred by a prior judgment or

2. By the statute of limitations;

3. That the claim or demand set forth in the plaintiff’s pleading

has been paid, waived, abandoned or otherwise extinguished;
or (Note: this is not one of the grounds for a motion to dismiss,
as enumerated under Section 12 hereof)

4. That the claim on which the action is founded is unenforceable

under the provisions of the statute of frauds or prescription.

If the dismissal is based on the foregoing grounds, it shall be a

BAR to the refiling of the same action or claim.

(RULE 16

MOTION TO DISMISS)

Note: Provisions either deleted or transposed

Section 1.Grounds. — Within the time for but before filing the answer
to the complaint or pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:

384
 (a) That the court has no jurisdiction over the subject matter of
the claim;

(b) That there is another action pending between the same

parties for the same cause;

© That the cause of action is barred by a prior judgment or

(e) by the statute of limitations;

It is humbly submitted that the 2019 Revised Rules on Civil

Procedure does not altogether delete Rule 16 on Motion to Dismiss.
Though Section 12 of Rule 15 on Motion provides as Prohibited Motion
a Motion to Dismiss but this is subject to the exception if the same is
based on the following grounds:

1) That the court has no jurisdiction over the subject matter of

the claim;

2) That there is another action pending between the same

parties for the same cause; and

3) That the cause of action is barred by a prior judgment or

4) By the statute of limitations;

In other words, the defendant can still file a Motion to Dismiss

based on the foregoing grounds before the filing of the answer to the
complaint. What is being prohibited is the filing of a Motion to Dismiss
not based on the abobe-mentioned grounds.

As an additional argument that the 2019 Rules of Civil Procedure

does not obliterate a Motion to Dismiss is the provision of Section 1,
Rule 9, which provides:

385
 “Section 1. Defenses and objections not pleaded. – Defenses and
objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction over the
subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim.”

Note: In the light of the deletion of Rule 16 hereof, the explanation

hereunder is only for academic discussion on the manner and nature of
a Motion to Dismiss.

What is a motion to dismiss?

It is an application for the dismissal of the action based on the

grounds set forth under Sec. 1 of rule 16 to be filed before the filing of a
responsive pleading.

A motion to dismiss is not a pleading

A motion to dismiss is not a pleading. It is merely a motion. Under

the Rules, a motion is an application for relief other than by a pleading
(Sec. 1, Rule 15).

Hypothetical admissions of a motion to dismiss (BAR 1989)

A motion to dismiss hypothetically admits the truth of the factual

allegation of the complaint. However, the hypothetical admission
extends only to such matters of fact that have been sufficiently pleaded
and not to mere epithets charging fraud, allegations of legal
conclusions or erroneous statements of law, inferences from facts not
stated, matter of evidence or irrelevant matters (De Dios v. Bristol
Laboratories, 55 SCRA 34). Only deemed hypothetically admitted are
material allegations, not conclusions. An allegation that a contract is an

386
“equitable mortgage” is a conclusion and not a material allegation.
Hence, it is not deemed admitted by the motion to dismiss.

A hypothetical admission could be illustrated thus: If the plaintiff

files an action for damages against the defendant who files a motion to
dismiss, the defendant in effect says that even assuming the facts to be
true as alleged by the plaintiff, the latter has failed to show that he has
a right to relief because his action has prescribed or because the court
where the action is filed has no jurisdiction over the subject matter of
the complaint. The filing of a motion to dismiss does not amount to an
actual admission of the material allegations of the complaint. The
admission is not the judicial admission contemplated in Sec. 4, Rule 129
of the Rules of Court. As the jurisprudence cited above puts it, the
admission is merely “hypothetical.”

Section 2.Hearing of motion. — At the hearing of the motion, the

parties shall submit their arguments on the questions of law and their
evidence on the questions of fact involved except those not available
at that time. Should the case go to trial, the evidence presented
during the hearing shall automatically be part of the evidence of the
party presenting the same.

What is the rule on the hearing on the motion to dismiss?

At the hearing of the motion, the parties shall:

1. Submit their arguments on the questions of law and

2. Submit their evidence on the questions of fact involved except
those not available at that time.
3. Should the case go to trial, the evidence presented during the
hearing shall automatically be part of the evidence of the party
presenting the same.

387
Hearing of the motion to dismiss

A motion to dismiss is a litigated motion and hence, is to be

heard. In the hearing, the parties shall submit their arguments on the
questions of law and they shall submit their evidence as to the
questions of fact involved if such evidence is available at the time of the
hearing. If the case goes to trial, the evidence presented during the
hearing of the motion to dismiss shall automatically be part of the
evidence of the party presenting the same.

Section 3.Resolution of Motion. — After the hearing, the court may

dismiss the action or claim, deny the motion, or order the amendment
of the pleading.

The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the
reasons therefor. (3a)

What are the courses of action of the court on the motion to dismiss?

After the hearing, the court may resolve the motion by:

1. Dismissing the action or claim,

2. Deny the motion, or
3. Order the amendment of the pleading.

What is the limitation in the resolution of the motion?

1. The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable.
2. In every case, the resolution shall state clearly and distinctly the
reasons therefor. (3a)

388
Section 4.Time to plead. — If the motion is denied, the movant shall
file his answer within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion, but not
less than five (5) days in any event, computed from his receipt of the
notice of the denial. If the pleading is ordered to be amended, he shall
file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer
period. (4a)

When to file an answer in case of denial of the motion?

If the motion is denied by the court, the movant shall:

1. File his answer within the balance of the period prescribed by

Rule 11 to which he was entitled at the time of serving his
motion,
2. But not less than five (5) days in any event, computed from his
receipt of the notice of the denial.

When to file answer in case amendment of the pleading is ordered?

If the pleading is ordered to be amended, he shall file his answer

within the period prescribed by Rule 11 counted from service of the
amended pleading, unless the court provides a longer period.

Remedy of the defendant if the motion is denied

If the motion to dismiss is denied, the movant shall file his answer
within the balance of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than five (5) days
in any event. This period shall be computed from the receipt of the
notice of denial.

As a rule, the filing of an answer and going through the usual trial
process, and later, the filing of a timely appeal from an adverse
389
judgment are the proper remedies against a denial of a motion to
dismiss.

The filing of an appeal from an order denying a motion to dismiss

is not the remedy prescribed by existing rules. The order of denial,
being interlocutory, is not appealable by express provision of Sec. 1 (b),
Rule 41.

Jurisprudence declares: “An order denying a motion to dismiss is

an interlocutory order which neither terminates nor finally disposes of
a case, as it leaves something to be done by the court before the case is
finally decided on the merits. As such, the general rule is that the denial
of a motion to dismiss cannot be questioned in a special civil action for
certiorari which is a remedy designed to correct errors of jurisdiction
and not errors of judgment. Neither can a denial of a motion to dismiss
be the subject of an appeal unless and until a final judgment or order is
rendered.

In order to justify the grant of the extraordinary remedy of

certiorari, the denial of the motion to dismiss must have been tainted
with grave abuse of discretion amounting to lack or excess of
jurisdiction (Douglas Lu Ym v. Gertrudes Nabua, 452 SCRA 298).

Remedies of the plaintiff if the motion to dismiss is granted

If the motion to dismiss is granted, the complaint is dismissed.

The plaintiff then has several options.

(a)Depending upon the ground for the dismissal of the action, the
plaintiff may simply REFILE the complaint. For instance, if the
ground for dismissal was anchored on improper venue, the
plaintiff may file the action in the proper venue.

390
 (b) He may APPEAL from the order of dismissal where the
ground relied upon is one which bars the refilling of the
complaint like res judicata, prescription, extinguishment of the
obligation or violation of the Statute of Frauds. Since the
complaint cannot be refilled, the dismissal is with prejudice.
Under Sec. 1 (g) of Rule 41, it is an order dismissing an action
without prejudice which cannot be appealed from. Conversely,
where the dismissal is with prejudice, an appeal from the order
of dismissal is not precluded.

1. Lack of jurisdiction over the subject matter (Note: Sec. 1

(g), Rule 41, Rules of Court in relation to Sec. 8, Rule 40)

©The plaintiff may avail of a petition for certiorari. This remedy is

available if the court gravely abuses its discretion in a manner
amounting to lack of jurisdicition and is the appropriate remedy in
those instances when the dismissal is without prejudice.

Section 5.Effect of dismissal. — Subject to the right of appeal, an order

granting a motion to dismiss based on paragraphs (1), (2) and (3) of
section 1 hereof shall bar the refiling of the same action or claim.

When complaint cannot be refilled (BAR 2011)

An order granting a motion to dismiss shall bar the refilling of the

same action if the dismissal is based on any of the following grounds:

1. That the cause of action is barred by a prior judgment or

2. The cause of action is barred by the statute of limitations;

3. That the claim or demand set forth in the plaintiff's pleading

has been paid, waived, abandoned, or otherwise extinguished;

391
 4 That the claim on which the action is founded is enforceable
under the provisions of the statute of frauds.

Where the defendant is barred from refilling the action, the

remedy under the circumstances is to file an appeal because by the
clear language of Sec. 5, Rule 16, the dismissal is subject to the right to
appeal.

Section 6.Pleading grounds as affirmative defenses. — If no motion to

dismiss has been filed, any of the grounds for dismissal provided for in
this Rule may be pleaded as an affirmative defense in the answer
xxxxx.

The dismissal of the complaint under this section shall be without

prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (n)

What is the remedy in case that there is no motion to dismiss filed?

If no motion to dismiss has been filed, any of the grounds for

dismissal provided for in this Rule may be:

1. Pleaded as an affirmative defense in the answer and,

2. In the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (5a)

What is the effect of the dismissal of the action?

The dismissal of the complaint under this section shall be without

prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (n)

May a ground previously invoked in a denied motion to dismiss be

invoked anew?

392
 The ground may still be invoked. “… the denial of a motion to
dismiss does not preclude any future reliance on the grounds relied
thereupon.” (Sps. Rasdas v. Sps. Villa, 477 SCRA 538).

Effect of dismissal of complaint on the counterclaim (BAR 2008; 2010)

The dismissal of a complaint shall not prevent the prosecution in

the same or a separate action of a counterclaim pleaded in the answer
of the defendant. Thus, where the defendant pleads a counterclaim in
his answer, and after the preliminary hearing on his affirmative
defences, the court dismisses the complaint, it would be error for the
court to dismiss the counterclaims.

What are the grounds for the dismissal of the action under Rule 16?

Within the time for but before filing the answer to the complaint
or pleading asserting a claim, a motion to dismiss may be made on any
of the following grounds:

(1) That the court has no jurisdiction over the subject matter of
the claim;

(2) That there is another action pending between the same

parties for the same cause;

(3) That the cause of action is barred by a prior judgment or by

the statute of limitations;

(1) THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT

MATTER OF THE CLAIM

Jurisdiction over the subject matter is conferred by law. While

jurisdiction over the subject matter is conferred by law this jurisdiction
is determined by the allegations or averments in the complaint.

393
 Jurisdiction over the subject matter is conferred only by the
Constitution or the law. It cannot be acquired throuogh a waiver or
enlarged by the omission of the parties or conferred by the acquisence
of the court. Consequently, question of jusrisdiction may be cognizable
even if raised for the first time on appeal (Republic vs. Bantigue Point
Development Corporation, G.R. No. 162322, March 14, 2012).

The jurisdiction of the court is not determined by the defences

contained in the answer. If it were otherwise, it would be too difficult
to have a case either thrown out of court or its proceedings unduly
delayed by simple stratagem.

Even if no motion to dismiss is filed, the court may dismiss the

case for want of jurisdiction over the subject matter. This is because the
court has a clearly recognized right to determine its own jurisdiction
(Fabian v. desierto, 295 SCRA 470)

WHEN TO RAISE OBJECTION

It is well-settled that lack of jurisdiction on the subject matter can

be raised at any time and is not lost by estoppels by laches.

Objection to lack of jurisdiction over the subject matter may, as a

rule, be made at any stage of the proceedings, even for the first time on
appeal as long as estoppels by laches does not set it (Calimlim v.
Ramirez, 118 SCRA 399). Being stopped to question jurisdiction is the
exception rather than the rule.

(2) THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE

SAME PARTIES FOR THE SAME CAUSE

This ground for motion to dismiss, also known as litis pendentia,

refers to that situation wherein another action is pending between the

394
same parties for the same cause of action and that the second action
becomes unnecessary and vexatious

Litis pendecia – is a Latin term, which literally means “a pending

suit” and is variuously referred to in some decisions as lis pendens and
auter action pendant.

As a ground for the dismissal of a civil action, it refers to the

situation where two actions are pending between the same parties for
the same cause of action, so that one of them becomes unnecessary
and vexatious (Feliciano v. Court of Appeals, 287 SCRA 61).

REQUISITES OF LITIS PENDENCIA

1. Identity of parties, or at least their representation of the same

interests in both action;
2. Identity of rights asserted and reliefs prayed for, the reliefs
being founded on the same facts;
3. Identity with respect to the two preceding particulars in the
two cases, such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would
amount to res judicata in the other case.

(3) THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR

JUDGMENT OR BY STATUTE OF LIMITATIONS

Res judicata or bar by a prior judgment is a doctrine which holds

that a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively
settled if it arises in any subsequent litigation between the same parties
and for the same cause.

Requisites of res judicata

395
 1. There must be a final judgment or order;
2. The court rendering it must have jurisdiction over the subject
matter and the parties;
3. It must be a judgment or order on the merits; and
4. There must be, between the two cases, identity of parties,
subject matter, and cause of action.

Basis of the principle of res judicata.

Under the doctrine of res judicata, a final judgment or decree on

the merits rendered by a court of competent jurisdiction is conclusive
of the rights of the parties or their privies in all later suits and on all
points and matters determined in the previous suit. The foundation
principle upon which the doctrine rests is that the parties ought not to
be permitted to litigate the same issue more than once; that when a
right or a fact has been judicially tried and determined by a court of
competent jurisdiction, so long as it remains unreversed, should be
conclusive upon the parties and those in privity with them in law or
estate.

COMPARE LITIS PENDENCIA AND RES JUDICATA

In litis pendencia, both cases have identical parties, subject matter

and cause of action which are still pending; whereas, in res judicata,
one of the case has already been decided with finality on the merits.

In res judicata, the first case which was decided bars the filing of a
second case and the motion to dismiss can be filed in the subsequent
case; while in litis pendencia, the motion to dismiss can be filed in
either of the two (2) suits pending.

BAR 1989

396
 Evelyn filed a complaint for sum of money against Joan but the
complaint was later dismissed for failure to prosecute “within a
reasonable length of time.” Thereafter, Evelyn filed another case based
on the same facts against Joan. Joan moved to dismiss the same on the
ground that the cause of action therein is barred by a prior judgment
(res judicata). Evelyn opposed the motion claiming that res judicata has
not set in since Joan was not served with summons and the complaint
in the first case was earlier dismissed, so that the trial court necer
acquired jurisdiction over her person and consequently, over the case.
How would you decide the motion of Joan?

Suggested answer

The motion to dismiss should be denied. The opposition to the

motion is impressed with merit. There essential conditions which must
concur in order that res judicata may effectively apply, to wit:

1. There must be a final judgment or order;

2. The court rendering it must have jurisdiction over the subject
matter and the parties;
3. It must be a judgment or order on the merits; and
4. There must be, between the two cases, identity of parties,
subject matter, and cause of action.

Under the facts of the case, the requirement that there must be
jurisdiction over both the parties was not complied with. Since Joan
was not served with summons, the court in the first case never
acquired jurisdiction over her person.

BAR 1987

“A” the surviving husband of “B” executed in favour of “C” a deed

entitled “Contract of Sale a Retro” over a certain parcel of land
registered under the Torrens System in which the owner is described as

397
“A,” married to “B.” Subsequently, “A” sued “C” for reformation of the
contract, alleging thast what was agreed upon was really a mortgage
and not a sale a retro. “A’s” complaint was dismissed for failure to
prosecute and the dismissal became final.

A year later, the children of “A” and “B” sued “C” for the
annulment of the contract of sale a retro, alleging that the subject
pieve of land was acquired by their parents during the marriage, hence,
their father had no right to include in the sale the children’s interest in
the property as heirs of their mother, such children not having
consented to the sale.

“C” moved to dismiss the complaint on the grlound of bar by a

former judgment.

Resolve the motion to dismiss.

Suggested answer

The motion to dismiss should be denied. Certain essential

condtions must concur in order that res judicata may effectively apply.
One of such condition is that there must be between the first and the
second actions identity of parties, identity of subject matter, and
identity of cause of action. This requirement is not present in the case
at bar. The cause of action against “C” in the first action (Reformation
of Contract) is different from the cause of action against him in the
second action (Annulment of the Contract of Sale a Retro).

(4) BARRED BY STATUTE OF LIMITATIONS

A statute of limitations, sometimes referred to as a “statute of

repose,” is one which prescribes limitations to the right of action on
certain described causes of action and declares that no suit shall be

398
maintained unless brought within a specified period of time after
theright accrued (Black’s)

A motion to dismiss on the ground of prescription will be given

due course only if the complaint shows on its face that the action has
already prescribed. (NIA vs. CA, 318 SCRA 255).

When a complaint is brought after the period set by law for the
filing of the same, the right of action is said to have prescribed. Under
Sec. 16, the defending party may file a motion to dismiss on this
ground.

Prescription is a legal defense accorded any person against whom

a judicial action is belatedly brought after the lapse of the time
specified by law. The period of prescription is reckoned from the date
the cause of action accrued (Lim Tay v. Court of Appeals, 293 SCRA
634).

Laches, in a general sense, is the failure or neglect, for an

unreasonable and an unexplained length of time, to do that which, by
exercising due diligence, could or should have done earlier.

Laches is not the same as prescription. The defense of laches

applies independently of prescription.

While prescription is concerned with the fact of delay, laches is

concerned with the effect of delay.

Prescription is a matter of time; laches is a question of inequity of

permitting a claim to be enforced.

Prescription is statutory, laches is not.

Prescription applies at law, laches applies in equity.

399
Actions prescribe by the mere lapse of time (Art. 1139, Civil Code of the
Philippines.

Example:

1. An action to recover movables property prescribes im eight (8)

years;
2. Real actions over immovables prescribe after thirty (30) years;
3. A mortgage action prescribes after ten (10) years;
4. Action upon a written contract, an obligation created by law
and actions upon a judgment, must be brought within ten (10)
years from the time the right of action accrues.

Requisites of a motion to dismiss based on prescription:

A motion to dismiss on the ground of prescription will be given

due course only of the complaint shows on its face that the action has
already prescribed.

WHEN IS PRESCRIPTION OF ACTIONS INTERRUPTED?

Prescription of actions is interrupted in the following instances:

1. When the action is filed in court.

2. When there is an extra-judicial demand.
3. When there is a written acknowledgement of the debt by the
debtor.

Motion to Dismiss under the Revised Rule on Summary Procedure

As a rule, a motion to dismiss is prohibited motion under the 1991

Revised Rules on Summary Procedure except when the ground relied
upon is: (a) lack of jurisdiction over the subject matter, or (b) failure to
comply with the barangay conciliation proceedings.

400
 Since a motion to dismiss is a prohibited motion, the remedy of
the defendant is to allege his grounds for dismissal as affirmative
defences in his answer. He must alleged all available grounds
otherwise, those not alleged shall be deemed waived.

MOTION TO DISMISS

COMES NOW, the defendant, through the undersigned counsel

and unto this Honorable Court, most respectfully moves for the
dismissal of the complaint on the following grounds, and moves:

a) That the court has no jurisdiction over the subject matter of

the claim;

(b) That there is another action pending between the same

parties for the same cause;

(C) That the cause of action is barred by a prior judgment or

(d) by the statute of limitations;

ARGUMENTS

WHEREFORE, defendant prays that the complaint be dismissed,

with costs against the plaintiff.

Such other relief and remedies as may be deemed just and

equitable under the premises are likewise prayesd for.

DISMISSAL OF ACTION BY THE PLAINTIFF

BASIC CONCEPTS

1. What is the test to determine the doctrine of “Non-Prosequitor”

as a ground for dismissal.

401
 The fundamental test for “Non-Prosequitor” is whether, under the
circumstances, the plaintiff is chargeable with want of due diligence in
failing to proceed with reasonable promptitude. There must be
unwillingness on the part of the plaintiff to prosecute. (Shimizu
Philippines Contractors Inc. vs. Mrs Letecia B. Magsalin, G.R. No.
170026, June 20, 2012).

2. What are the manners of dismissal of the action by the plaintiff?

Rule 17 of the Rules of Court provides for the dismissal of the action
upon the instance of the plaintiff in the following manner:

a. Dismissal upon notice of the plaintiff (Sec. 1, Rule 17)

b. Dismissal upon motion of the plaintiff (Sec. 2, Rule 17)
c. Dismsissal due to the fault of the plaintiff (Sec. 3, Rule 17)

RULE 17

DISMISSAL OF ACTIONS

Section 1.Dismissal upon notice by plaintiff. — A complaint may be

dismissed by the plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming

402
the dismissal. Unless otherwise stated in the notice, the dismissal is
without prejudice, except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the same claim.

How can the plaintiff cause for the dismissal of the action upon notice?

A complaint may be dismissed by the plaintiff by filing a notice of

dismissal at any time before service of the answer or of a motion for
summary judgment.

What is the action of the court on the notice filed?

Upon such notice being filed, the court shall issue an order
confirming the dismissal.

What is the nature of the dismissal?

Unless otherwise stated in the notice, the dismissal is without

prejudice.

What is the exception to the dismissal without prejudice?

Except that a notice operates as an adjudication upon the merits

when filed by a plaintiff who has once dismissed in a competent court
an action based on or including the same claim. This is known as the
two (2) dismissal Rule.

It is not the order confirming the dismissal which operates to

dismiss the complaint. As the name of the order implies, said order
merely confirms a dismissal already effected by the filing of the notice
of dismissal. Since the order issued by the court merely confirms the
dismissal, it follows that the court does not have to approve the
dismissal because it has no discretion on the matter. Before an answer
or a motion for summary judgment has been served upon the plaintiff,

403
the dismissal by the plaintiff by the filing of a notice is a matter of right.
It is submitted that the dismissal should occur as of the date the notice
is filed by the plaintiff and not as of the date the court issues the order
confirming the dismissal.

BAR 2016
 
      Agatha filed a complaint against Yana in the RTC in Makati City to
collect P350,000.00, an amount representing the unpaid balance on the
price of the car Yana had bought from Agatha. Realizing a jurisdictional
error in filing the complaint in the RTC, Agatha filed a notice of
dismissal before she was served with the answer of Yana. The RTC
issued an order confirming the dismissal.
             Three months later, Agatha filed another complaint against Yana
based on the same cause of action this time in the MeTC of Makati City.
However, for reasons personal to her, Agatha decided to have the
complaint dismissed without prejudice by filing a notice of dismissal
prior to the service of the answer of Yana. Hence, the case was
dismissed by the MeTC.
             A month later, Agatha refiled the complaint against Yana in the
same MeTC.
             May Yana successfully invoke the Two-Dismissal Rule to bar
Agatha’s third complaint? Explain your answer.
Suggested answer
 
         No, Yana may not successfully invoke the Two-Dismissal Rule to
bar Agatha’s third complaint

            Under the Two-Dismissal Rule, the notice of dismissal operates

as an adjudication upon the merits provided it is filed by a plaintiff who

404
has once dismissed in a competent court an action based on or
including the same claim.   

            Here the first dismissal by the plaintiff was not in a competent

court as the RTC in Makati City did not have subject-matter jurisdiction
over an action seeking to recover P350,000. Hence Agatha’s third
complaint is not barred by the Two-Dismissal Rule. 

BAR 2018

Dick Dixson had sons with different women - (i) Dexter with longtime
partner Delia and (ii) Dongdong and Dingdong with his housemaid
Divina. When Dick fell ill in 2014, he entrusted all his property titles and
shares of stock in various companies to Delia who, in turn, handed
them to Dexter for safekeeping. After the death of Dick, Dexter induced
Dongdong and Dingdong to sign an agreement and waiver of their right
to Dick's estate in consideration of PhP 45 million. As Dexter reneged
on his promise to pay, Dongdong and Dingdong filed a complaint with
the RTC of Manila for annulment of the agreement and waiver. The
summons and complaint were received by Dalia, the housemaid of
Dexter, on the day it was first served. Dexter filed a motion to dismiss
on the ground of lack of jurisdiction over his person. RTC Manila
granted the motion to dismiss.

Dongdong and Dingdong thereafter filed a new complaint against

Dexter for annulment of the agreement and waiver. Before Dexter
could file his answer, Dongdong and Dingdong filed a motion to
withdraw their complaint praying that it be dismissed without
prejudice. An Order was issued granting the motion to withdraw
without prejudice on the basis that the summons had not yet been
served on Dexter. Dexter filed a motion for reconsideration of the order
of dismissal. He argued that the dismissal should have been with

405
prejudice under the "two-dismissal rule" of Rule 17, Section 1 of the
Rules of Court, in view of the previous dismissal of the first case.

Will the two-dismissal rule apply making the second dismissal with
prejudice?

Sample form

NOTICE OF DISMISSAL

To: The Branch Clerk of Court

RTC BRANCH 32, ILOILO CITY

Greetings:

Please take notice that the plaintiff is hereby moving for the
dismissal of the above-entitled case due to his health reason that he
cannot for the meantime prosecute the above.

WHEREFORE, plaintiff prays that the complaint be dismissed.

Such other relief and remedies as may be deemed just and

equitable under the premises are likewise prayed for.

Dismissal without prejudice

A dismissal made by the filing of a notice of dismissal is a dismissal

without prejudice i.e., the complaint can be refilled. This is the general
rule.

The dismissal will, however, be one with prejudice in any of the

following situations:

1. The notice of dismissal by the plaintiff provides that the

dismissal is with prejudice; or

406
 2. The plaintiff has previously dismissed the same case in a court
of competent jurisdiction based on or including the same claim.

If the plaintiff files a notice of dismissal providing therein a reason

that prevents the refilling of the complaint, the dismissal must be
deemed one with prejudice even if the notice does not state that the
dismissal is with prejudice. This happens when, for instance, the notice
provides that the plaintiff recognizes the fact of prescription or
extinguishment of the obligation of the defendant or for reasons stated
in Sec. 5 of Rule 16 as when the action is barred by res judicata, the
statute of limitations or that the claim or demand has been paid,
waived, abandoned or otherwise extinguished.

Two dismissal rule (BAR 1989)

The ‘two-dismissal’ rule applies when the plaintiff has (a) twice
dismissed the actions, (b) based on or including the same claim, (c) in a
court of competent jurisdiction.

The second notice of dismissal will bar the refiling of the action
because it will operate as an adjudication of the claim upon the merits.
In other words, the claim may only be filed twice the first being the
claim is embodied in the original complaint. Since as a rule, the
dismissal is without prejudice, the same claim may be refilled.
However, if the refiled claim or complaint is dismissed again through a
second notice of dismissal, that second notice triggers the application
of the two-dismissal rule and the dismissal is to be deemed one with
prejudice because it is considered as an adjudication upon the merits.

BAR 1989

Before any answer or motion for summary judgment could be

filed by defendant, the plaintiff filed a notice of dismissal of his

407
complaint. The trial court simply noted the dismissal. Is the case
considered dismissed?

Suggested answer

The case is considered dismissed. In order to dismiss a complaint

upon notice of the plaintiff, the rule merely requires the filing of a
notice of dismissal. The role of the court is merely to issue an order
confirming the dismissal. It is not the court order that effects the
dismissal but the filing by the plaintiff of his notice of dismissal. It is
submitted that whether or not this dismissal is confirmed does not
affect the fact of dismissal.

Section 2.Dismissal upon motion of plaintiff. — Except as provided in

the preceding section, a complaint shall not be dismissed at the
plaintiff's instance save upon approval of the court and upon such
terms and conditions as the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the service upon him of the
plaintiff’s motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right of the
defendant to prosecute his OR HER counterclaim in a separate action
unless within fifteen (15) CALENDAR days from notice of the motion
he OR SHE manifests his OR HER preference to have his OR HER
counterclaim resolved in the same action. Unless otherwise specified
in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without
the approval of the court.

What are the requirements of dismissal upon motion of the plaintiff?

Except as provided in the preceding section, a complaint shall not

be dismissed at the plaintiff's instance save:

1. Upon approval of the court and

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 2. Upon such terms and conditions as the court deems proper.

Dismissal by filing a motion to dismiss

Once either an answer or a motion for summary judgment has

been served on the plaintiff, the dismissal is no longer a matter of right
and will require the filing of a motion to dismiss, not a mere notice of
dismissal. The motion to dismiss will now be subject to the approval of
the court which will decide on the motion upon such terms and
conditions as are just. The dismissal under Sec. 2, Rule 17 is no longer a
matter of right on the part of the plaintiff but a matter of judicial
discretion.

What are the effects of the service of the motion for dismissal upon the
defendant?

If a counterclaim has been pleaded by a defendant prior to the

service upon him of the plaintiff’s motion for dismissal it has the
following effects:

1. The dismissal shall be limited to the complaint;

2. The dismissal shall be without prejudice to the right of the

defendant to prosecute his counterclaim in a separate action
unless within fifteen (15) calendar days from notice of the
motion he manifest his preference to have his counterclaim
resolved in the same action.

The dismissal authorized under Sec. 2 of Rule 17 is a dismissal

without prejudice except if the order of dismissal specifies that it is with
prejudice.

Effect of dismissal upon a counterclaim already pleaded (BAR 2008;

2010)

409
 If a counterclaim has already been pleaded by the defendant prior
to the service upon him of the plaintiff’s motion to dismiss, and the
court grants the said motion to dismiss, the dismissal “shall be limited
to the complaint.” The phraseology of the provision is clear: the
counterclaim is not dismissed, whether it is a compulsory or a
permissive counterclaim because the rule makes no distinction.

Sample form

MOTION TO DISMISS

Comes now, the plaintiff, through the undersigned counsel and

unto this Jonorable Court, most avers:

1. That on January 30, 2013, plaintiff filed this instant complaint

for Collection of Sum of Money with Damages against the
defendant;
2. That due to the continuous deterioration of the health
condition of the plaintiff he cannot for the meantime prosecute
the above-entitled case.

WHEREFORE, premises considered, plaintiff respectfully prays that

the complaint be dismissed without prejudice based on the above
reason.

Such other relief and remedies as may be deemed just and

equitable under the premises are likewise prayed for.

Section 3.Dismissal due to fault of plaintiff. — If, for no justifiable

cause, the plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint, or to prosecute his action for
an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of
the defendant or upon the court's own motion, without prejudice to

410
the right of the defendant to prosecute his OR HER counterclaim in
the same or in a separate action. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise declared by the
court.

What are the instances of dismissal due to the fault of the plaintiff?

If, for no justifiable cause, the complaint may be dismissed upon

motion of the defendant or upon the court’s own motion, without
prejudice to the right of the defendant to prosecute his counterclaim in
the same or in a separate action.

1. The plaintiff fails to appear on the date of the presentation

of his evidence in chief on the complaint, or

2. To prosecute his action for an unreasonable length of

time, or

3. To comply with these Rules or any order of the court,

What is the nature of the dismissal under the rules?

The dismissal shall have the effect of:

1. An adjudication upon the merits,

2. Unless otherwise declared by the court.

Dismissal due to the fault of the plaintiff.

A complaint may be dismissed even if the plaintiff has no desire to

have the same dismissed. The dismissal in this case will be through
reasons attributed to his fault. Sec. 3, Rule 17 provides for the following
ground:

411
 1. The plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint;

2. To prosecute his action for an unreasonable length of time;

3. To comply with these Rules or

4. To comply with any order of the court.

The dismissal due to the act of the plaintiff may be done by the
court on its own motion (motu proprio) or upon a motin filed by the
defendant.

The failure of a plaintiff to prosecute the action without any

justifiable cause within a reasonable period of time will give rise to the
presumption that he is no longer interested to obtain from the court
the relief prayed for in his complaint, hence the court is authorized to
order the dismissal of the complaint on its own motion or on motion of
the defendant. The presumption, is not, by any means, conclusive
because the plaintiff, on a motion for reconsideration of the order of
dismissal, may allege and establish a justifiable cause for such failure.
The burden to show that there are compelling reasons that would make
a dismissal of the case unjustified is on the petitioners. (Eloisa
Merchandizing vs. Banco de Oro, G.R. No. 192716, June 13, 2012).

Effect of dismissal on the counterclaim

The dismissal of the complaint under Sec. 3, Rule 17 i.e., because

of the fault of the plaintiff, is without prejudice to the right of the
defendant to prosecute his counterclaim in the same action or in a
separate action.

Dismissal with prejudice (Sec. 3, Rule 17)

412
 The dismissal under Sec. 3 of Rule 17 shall have the effect of an
adjudication on the merits, unless otherwise declared by the court.
Hence, as a rule, it is a dismissal with prejudice.

Dismissal of a class suit

A class suit shall not be dismissed or compromised without the

approval of the court (Sec.2, Rule 17)

Section 4.Dismissal of counterclaim, cross-claim, or third-party

complaint. — The provisions of this Rule shall apply to the dismissal of
any counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for summary
judgment is served or, if there is none, before the introduction of
evidence at the trial or hearing.

Is the dismissal under the rules applicable in case of counterclaim,

cross-claim, or third-party complaint?

The provisions of this Rule shall apply to the dismissal of any

counterclaim, cross-claim, or third-party complaint.

When to make a voluntary dismissal?

A voluntary dismissal by the claimant by notice as in section 1 of

this Rule, shall be made:

1. Before a responsive pleading or

2. Before a motion for summary judgment is served or,
3. If there is none, before the introduction of evidence at the trial
or hearing.

Dismissal of counterclaim, cros-claim or third-party complaint

413
 Rule 17 shall apply also to the dismissal of any counterclaim,
cross-claim, or third-party complaint. A voluntary dismissal by the
claimant by notice of dismissal as in Sec. 1, Rule 17 shall be made
before a responsive pleading or a motion for a summary judgment is
served, or if, there is none, before the introduction of evidence at the
trial or hearing.

414
 RULE 18

PRE-TRIAL

Section 1. When conducted. — After the last responsive pleading has

been served and filed, the branch clerk of court shall issue, within five
(5) calendar days from filing, a notice of pre-trial which shall be set not
later than sixty (60) calendar days from the filing of the last responsive
pleading.

Nature and Purpose of a Pre-Trial

A pre-trial is a procedural device that is indispensable in a
proceeding, civil or criminal and is designed to limit the issues to be
proved at the trial. With the limitation of the issues, there would be
fewer points of contention for the trial court to resolve.
When Pre-Trial shall be conducted?
After the last responsive pleading has been served and filed, the
branch clerk of court shall issue, within five (5) calendar days from
filing, a notice of pre-trial which shall be set not later than sixty (60)
calendar days from the filing of the last responsive pleading.

The meaning of ‘RESPONSIVE pleading’

The last RESPONSIVE pleading that a party could file might be the
Answer to the complainant’s claim, if the complainant does not want to
response to the Answer by way of a Reply. Or the last responsive
pleading could be a Reply, if the complainant wishes to response to the
defendant’s Answer, especially so when the defendant defense is based
on an actionable document. The claim could be the original complaint,
the counterclaim, the cross-claim or the third-party complaint. If an
answer is filed and served in response to these claims, the pleading in

415
response to these answers is the reply (Sarmineto v. Juan, 120 SCRA
403) which is to be filed within fifteen (15) calendar days from the
service of the pleading responded to.

It appears under the new Rules that “Rejoinder” to the plaintiff’s

Reply, could also be the last responsive pleading, especially so when
the plaintiff’s Reply is founded on an actionable document.

Where the last RESPONSIVE pleading has not yet been served and
filed, the case is not yet ready for pre-trial. However, the ‘last
RESPONSIVE’ need not be literally construed as one having been served
and filed. For purposes of the pre-trial, the expiration of the period for
filing the last RESPONSIVE without it having been served and filed is
sufficient.

Section 2.Nature and purpose. — The pre-trial is mandatory AND

SHOULD BE TERMINATED PROMPTLY. The court shall consider:

(a) The possibility of an amicable settlement or of a submission

to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The possibility of obtaining stipulations or admissions of facts

and of documents to avoid unnecessary proof;

(d The limitation of the number of witnesses AND

IDENTIFICATION of witnesses AND THE SETTING OF TRIAL DATES;

(e) The advisability of a preliminary reference of issues to a

commissioner;

(f) The propriety of rendering judgment on the pleadings, or

summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;

416
(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial

affidavits of their witnesses;

2. Examine and make comparisons of the adverse parties' evidence vis-

avis the copies to be marked;

3. Manifest for the record stipulations regarding the faithfulness of the

reproductions and the genuineness and due execution of the adverse
parties' evidence;

4. Reserve evidence not available at the pre-trial, but only in the

following manner:

i. For testimonial evidence, by giving the name or position and the

nature of the testimony of the proposed witness;

ii. For documentary evidence and other object evidence, by giving a

particular description of the evidence.

No reservation shall be allowed if not made in the manner described

above.

(h) Such other matters as may aid in the prompt disposition of the action.

The failure without just cause of a party and counsel to appear during
pre-trial, despite notice, shall result in a waiver of any objections to the
faithfulness of the reproductions marked, or their genuineness and due
execution.

The failure without just cause of a party and/or counsel to bring the
evidence required shall be deemed a waiver of the presentation of such
evidence.

417
The branch clerk of court shall prepare the minutes of the pre-trial,
which shall have the following format: (See prescribed form) (2a)

Concept, nature and purpose of a pre-trial (2009)

A pre-trial is a procedural device held prior to the trial for the

court to consider the following:

(a) The possibility of an amicable settlement or of a submission to

alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts

and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a

commissioner;

(g) The propriety of rendering judgment on the pleadings, or

summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;

(g) The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial

affidavits of their witnesses;

2. Examine and make comparisons of the adverse parties' evidence vis-

avis the copies to be marked;

418
3. Manifest for the record stipulations regarding the faithfulness of the
reproductions and the genuineness and due execution of the adverse
parties' evidence;

4. Reserve evidence not available at the pre-trial, but only in the

following manner:

i. For testimonial evidence, by giving the name or position and the

nature of the testimony of the proposed witness;

ii. For documentary evidence and other object evidence, by giving a

particular description of the evidence.

No reservation shall be allowed if not made in the manner described

above.

(h) Such other matters as may aid in the prompt disposition of the action.

Effect of failure to conduct a pre-trial

The failure of a judge to conduct a pre-trial conference in a civil

case is contrary to elementary rules of procedure. Rule 18 of the Rules
of Court imposes a duty upon the plaintiff to promptly move ex parte
that the case be set for pre-trial. “It is elementary and plain that the
holding of a pre-trial conference is mandatory and failure to do so is
inexcusable. When the law or procedure is so elementary, such as the
provisions of the Rules of Court, not to know it or to act as if one does
not know it constitutes gross ignorance of the law. Such ignorance of a
basic rule in court procedure, as failing to conduct pre-trial, sadly
amounts to gross ignorance and warrant a corresponding penalty.”
(National Power Corporation v. Adiong, A.M. No. RTJ -07-2060, July 27,
2011)

Referral to the Philippine Mediation Center

419
 At the start of the preliminary conference, the judge is mandated
to refer the parties and/or their counsels to the mediation unit of the
Philippine Mediation Center (PMC) for purposes of mediation. If
mediation fails, the judge will schedule the continuance of the
preliminary conference. This rule applies to Metro Manila, Cebu, Davao
City, and other places where Philippine Mediation Center Units may be
further organized and designated (Administrative Circular No. 20-2020,
March 24, 2002, A.M. No. 03-1-0-SC, July 13, 2004).

Section 3.Notice of pre-trial. — THE NOTICE OF PRE-TRIAL SHALL

INCLUDE THE DATES RESPECTIVELY SET FOR:

(a)Pre – trial;

(b) Court-Annexed Mediation; and

(c)Judicial Dispute Resolution, if necessary

The notice of pre-trial shall be served on counsel, or on the party

who has no counsel. The counsel served with such notice is charged
with the duty of notifying the party represented by him OR HER.

Non-appearance at any of the foregoing settings shall be deemed as

nonappearance at the pre-trial and shall merit the same sanctions under
Section 5 hereof.

Notice of pre-trial (BAR 1977)

The notice of pre-trial shall be served on the counsel of the party

if the latter is represented by counsel. Otherwise, the notice shall be
served on the party himself. The counsel is charged with the duty of
notifying his client of the date, time and place of the pre-trial.

420
 Notice is so important that it would be grave abuse of discretion
for the court for example, to allow the plaintiff to present his evidence
ex-parte for failure of the defendant to appear before the pre-trial who
did not receive through his counsel a notice of pre-trial. Accordingly,
there is no legal basis for a court to consider a party notified of the pre-
trial and to consider that there is no longer a need to send notice of
pre-trial merely because it was his counsel who suggested the date of
pre-trial (Agulto v. Tecson)

Section 4. Appearance of Parties. — It shall be the duty of the parties

and their counsel to appear at the pre-trial, court-annexed mediation, and
judicial dispute resolution, if necessary. The non-appearance of a party
and counsel may be excused only for acts of God, force majeure, or duly
substantiated physical inability.

A representative may appear on behalf of a party, but must be fully

authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and documents.

Appearance of parties and counsels in the pre-trial (BAR 1992)

It shall be the duty of both the parties and their counsels to

appear at the pre-trial.

Mediation is a part of pre-trial and failure of the plaintiff to

appear thereat merits sanction on the part of absent party.

How non-appearance is excused

The non-appearance of a party may be excused only if a valid

cause is shown for such non-appearance or a representative shall
appear in his behalf fully authorized in writing to enter into any of the

421
following matters: (a) an amicable settlement, (b) alternative dispute
resolution, and (c) stipulations and admissions.

The phraseology of the provision suggests that it is not sufficient

for the written authority to give to the representative the power to
enter into one of the matters mentioned in Sec. 4, Rule 18, as when the
only authority granted is to enter into an amicable settlement. The
authority must also confer upon the representative the power to enter
into alternative modes of dispute resolution and stipulations and
admissions of fact. An incomplete authority does not satisfy the
requirements of the Rules and should be deemed the equivalent of
having no authority at all.

Although Sec. 4 uses the disjunctive “or,” the logical meaning of

the rule disctates that the written authority given to the representative
be coupled with an explanation showing a valid cause for a paryt’s non-
appearance. Common reason suggests that having a written authority
but without a justification for a party’s absence or vice versa would not
be in accord with the spirit of the Rules.

The written authority must be in the form of a special power of

attorney. Entering into an amicable settlement for a client who is the
principal in the attorney-client relationship involves entering into a
compromise. Substantive law (Art. 1878 [3] of the Civil code of the
Philippines is explicit: “Special powers of attorney are necessary: To
compromise, to submit questions to arbitration xxx.”

Section 5.Effect of failure to appear. — WHEN DULY NOTIFIED, the

failure of the plaintiff AND COUNSEL to appear WITHOUT VALID
CAUSE when so required pursuant to the next preceding section shall
be cause for dismissal of the action. The dismissal shall be with
prejudice, unless other-wise ordered by the court. A similar failure on
the part of the defendant AND COUNSEL shall be cause to allow the
plaintiff to present his OR HER evidence ex parte WITHIN TEN (10)
422
CALENDAR DAYS FROM TERMINATION OF THE PRE-TRIAL, and the
court to render judgment on the basis OF THE EVIDENCE OFFERED.

Effect of failure to appear by the plaintiff (BAR 1989; 1981; 1980)

The failure of the plaintiff AND COUNSEL to appear shall be cause

for the dismissal of the action. This dismissal shall be with prejudice
except when the court orders otherwise.

Since the dismissal of the action shall be with prejudice, unless

otherwise provided, the same shall have the effect of an adjudication
on the merits, thus final. The remedy of the plaintiff is to appeal from
the order of dismissal. An order dismissing the action with prejudice is
appealable. Under the Rules, it is only when the order of dismissal is
without prejudice, that appeal cannot be availed of. Since appeal is
available certiorari is not the remdy because the application of a
petition for certiorari under Sec. 65 of the Rules of Court is conditioned
upon the absence of appeal or any plain, speedy and adequate remedy
in the ordinarty course of law (Sec. 1, Rule 65, Rules of Court).

Effect of failure to appear by the defendant (BAR 2011)

The failure of the defendant AND COUNSEL to appear shall be

cause to allow the plaintiff to present his evidence ex parte and for the
court to render judgment on the basis of the evidence presented by the
plaintiff.

The order of the court allowing the plaintiff to present his

evidence ex parte does not dispose of the case with finality. The order,
is therefore, merely interlocutory, hence, not appealable. Under Sec. 1
(b) of Rule 41, no appeal may be taken from an interlocutory order. The
defendant who feels aggrieved by the order may move for the
reconsideration of the order and if the denial is tainted with grave
abuse of discretion, he may file a petition for certiorari under Rule 65.

423
Section 6.Pre-trial brief. — The parties shall file with the court and
serve on the adverse party, in such manner as shall ensure their
receipt thereof at least three (3) CALENDAR days before the date of
the pre-trial, their respective pre-trial briefs which shall contain,
among others:

FILING OF PRE-TRIAL BRIEFS

The parties shall file with the court their respective pre-trial briefs
which should be received at least three (3) days before the date of pre-
trial. This pre-trial brief shall be served on the adverse (Sec. 6, rule 18).
Contents of Pre-trial Brief

(a) A concise statement of the case and the reliefs prayed for;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The main factual and legal issues to be tried or resolved;

(d) The propriety of referral of factual issues to commissioners;

(e) The documents or other object evidence to be marked, stating the

purpose thereof;

(f) The names of the witnesses, and the summary of their respective
testimonies; and

(g) A brief statement of points of law and citation of authorities.

Failure to file the pre-trial brief shall have the same effect as failure to
appear at the pre-trial.

Identification and marking of evidence

424
 It is vital to have documents and exhibits identified and marked
during the pre-trial. The current rule establishes the policy that no
evidence shall be allowed to be presented and offered during the trial
in support of a party’s evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial, except if allowed
by the court for good cause shown (A.M. No. 03-1-0-SC, July 13, 2004).

Legal effect of representations and statements in the pre-trial brief

The parties are bound by the representations and statements in

their respective pre-trial briefs. Such representations and statements
are in the nature of judicial admissions in relation to Sec, 4 of Rule 12 of
the Rules of Court.

Effect of failure to file a pre-trial brief

1. The failure to file pre-trial brief shall have the same effect as
failure to appear at the pre-trial. Hence, if it is the plaintiff who
fails to file a pre-trial brief, such failure shall be cause for
dismissal of the action. If it is the defendant who fails to do so,
such failure shall be cause to allow the plaintiff to present his
evidenced ex-parte.

2. The dismissal of a complaint for failure to file pre-trial brief is

discretionary on the part of the trial court (Ramos v. Spouses
Lavendia, 568 SCRA 239)

No termination of pre-trial for failure to settle

The judge should not allow the termination of pre-trial simply

because of the manifestation of the parties that they cannot settle the
425
case. Instead, he should expose the parties to the advantages of pre-
trial. He must also be mindful that there are important aspects of the
pre-trial that ought to be taken up to expidite then disposition of the
case (A.M. No. 03-1-09-SC, July 13, 2004)

If all efforts to settle fail, the trial judge shall endeavour to achieve
the other purposes of a pre-trial like, among others, obtaining
admissions or stipulations of facts. To obtain admissions, the judge shall
ask then parties to submit whatever depositions have been taken under
Rule 23, the answers to written interrogatories under Rule 25 and the
answers to request for admissions by the adverse party under Rule 26.
He may also require the production documents or things by a party
under Rule 27 and the results of the physical and mental examination
of persons under Rule 28.

Questions are to be asked by the Judge

During the pre-trial, the judge shall be the one to ask questions on
issues raised by the parties and all questions or comments by counsel
or parties must be directed to the judge to avoid hostilities between
the parties.

Section 7. Pre-Trial Order. — Upon termination of the pre-trial, the

court shall issue an order within ten (10) calendar days which shall recite
in detail the matters taken up. The order shall include:

(a) An enumeration of the admitted facts;

(b) The minutes of the pre-trial conference;

(c) The legal and factual issue/s to be tried;

(d) The applicable law, rules, and jurisprudence;

(e) The evidence marked;

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(f) The specific trial dates for continuous trial, which shall be within the
period provided by the Rules;

(c)The case flowchart to be determined by the court, which shall

contain the different stages of the proceedings up to the
promulgation of the decision and the use of time frames for each
stage in setting the trial dates;

(h) A statement that the one-day examination of witness rule and most
important witness rule under A.M. No. 03-1-09-SC (Guidelines for Pre-
Trial) shall be strictly followed; and

(i) A statement that the court shall render judgment on the pleadings or
summary judgment, as the case may be. The direct testimony of
witnesses for the plaintiff shall be in the form of judicial affidavits. After
the identification of such affidavits, cross-examination shall proceed
immediately.

Postponement of presentation of the parties’ witnesses at a scheduled

date is prohibited, except if it is based on acts of God, force majeure or
duly substantiated physical inability of the witness to appear and testify.
The party who caused the postponement is warned that the presentation
of its evidence must still be terminated within the remaining dates
previously agreed upon.

Should the opposing party fail to appear without valid cause stated in the
next preceding paragraph, the presentation of the scheduled witness will
proceed with the absent party being deemed to have waived the right to
interpose objection and conduct cross-examination.

The contents of the pre-trial order shall control the subsequent

proceedings, unless modified before trial to prevent manifest injustice.
(7a)

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What shall be included in the Pre-Trial Order?

(a) An enumeration of the admitted facts;

(b) The minutes of the pre-trial conference;

(c) The legal and factual issue/s to be tried;

(d) The applicable law, rules, and jurisprudence;

(e) The evidence marked;

(f) The specific trial dates for continuous trial, which shall be within the
period provided by the Rules;

(g)The case flowchart to be determined by the court, which shall

contain the different stages of the proceedings up to the promulgation
of the decision and the use of time frames for each stage in setting the
trial dates;

(h) A statement that the one-day examination of witness rule and most
important witness rule under A.M. No. 03-1-09-SC (Guidelines for Pre-
Trial) shall be strictly followed; and

(i) A statement that the court shall render judgment on the pleadings or
summary judgment, as the case may be.

One day examination of witness Rule (BAR 2009)

The court shall ask the parties to agree on the specific dates for
continuous trial, adhere to the case flow chart determined by the court
and use the time frame for each stage in setting the trial dates.
Adherence to the One Day Examination of Witness Rule shall be

428
required where the witness shall be fully examined in one (1) day only,
subject to the court’s discretion during the trial on whether or not to
extend the examination for justifiable reasons.

Most Important Witness Rule

Where no settlement has been effected, the court shall follow the
Most Important Witness Rule, where the court shall determine the
most important witnesses and limit the number of such witnesses and
require the parties and/or counsels to submit to the branch clerk of
court the names, addresses and contact number of the witnesses to be
summoned by subpoena. Note, however, that the court may also refer
the case to a trial by commissioner under Rule 32.

Pre-trial order

This order of the court is issued by the court upon the termination
of the pre-trial. Under A.M. No. 03-1-09-SC, July 13, 2004, the pre-trial
order shall be issued within ten (10) days after the termination of the
pre-trial. This order recites the following:

1. The matters taken up in the conference,

2. The action taken thereon,
3. The amendments allowed to the pleadings, and
4. The agreements or admissions made by the parties as to any
of the matters considered.

Should the action proceed to trial, the order shall, explicitly define
and limit the issues to be tried. The contents of the order shall control
the subsequent course of the action, unless modified before trial to
prevent manifest injustice.

What is a Pre-trial Conference?

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 It is a procedural device used prior to trial to narrow issues to be
tried, and to secure stipulations as to matters and evidence to be
heard, and to take all other steps necessary to and in the disposition of
the case.
What is the proper action of the court in case of a pending Motion to
Dismiss during the pre-trial conference?
The respondent judge disregarded the provisions of Sec. 1, Rule
18 of the 1997 Rules of Civil Procedure, which states that “After the last
pleading has been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial.” Considering
that the last pleading was Mrs. Macias’ Motion to Dismiss, the
respondent judge should have first resolved the motion and then
waited for Mrs. Macias’ Motion to set the case for pre-trial (Margie
Macias Corpus vs. Judge Wilfredo Ochotorena, A.M. No. RTJ – 04-1861,
July 30, 2004) (Please note that the answer to this query could have
been modified by the present Rules)
BAR 1992
At a pre-trial hearing in the Regional Trial Court of which the
plaintiff and the defendant, as well as their respective counsel of record
were duly notified, only plaintiff’s counsel appeared but without the
requisite power of attorney authorizing him to fully and effectively
represent plaintiff at the pre-trial hearing. Because of the absence of
the defendant and his counsel, plaintiff’s attorney moved in open court
to have the defendant declared as in default. Under the circumstances,
what should the court do?
Suggested answer
The motion to have the defendant be declared as in default
should be denied by the court. To grant the motion would be

430
inequitable. The plaintiff himself was absent although his attorney was
present, the latter did not appear with the requisite authority in writing
to fully represent the plaintiff in the pre-trial as required in Sec. 4, Rule
18 of the Rules of Court. The court should, in a judicious exercise of his
discretion, instead re-set the pre-trial hearing with the warning that a
repetition of the same would be dealt with strictly in accordance with
the Rules of Court.
PRE-TRIAL IN CRIMINAL CASES COMPARED TO PRE-TRIAL IN CIVIL
CASES.
1. The pre-trial in a criminal case and civil case is mandatory.

2. The pre-trial in a criminal case is ordered by the court and no

motion is required from either party to call a pre-trial. In a civil
case, it is the duty of the clerk of court to set the date for pre-
trial conference within five (5) calendar days from the filing of
the last responsive pleadings.

3. The pre-trial in a criminal case is ordered by the court after

arraignment and within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused. In a civil
case, the pre-trial is set within five calendar days after the last
pleading has filed;

4. The pre-trial in a criminal case does not consider the possibility

of a compromise. A compromise is not one of those
enumerated purposes under Sec. 1 of Rule 118. In a civil case,
the possibility of an amicable settlement is an important
objective;

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 5. In a criminal case, all agreements or admissions made or
entered during the pre-trial conference shall be reduced in
writing and signed by the accused and his counsel, otherwise,
they cannot be used against the accused. In a civil case, the
agreements and admissions made are not required to be
signed by the parties and their counsels. They are contained in
the pre-trial order.

Is pre-trial mandatory in all trial courts? (BAR 1989)

Suggested answer
Pre-trial is mandatory in all courts in civil cases. It is also
mandatory now in all criminal cases cognizable by the Sandiganbayan,
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court. Under the Revised Rules on Summary
Procedure, a preliminary conference is mandatory in both civil and
criminal cases.

Preliminary conference under the Revised Rules on Summary

Procedure

Under the Revised Rules on Summary Procedure, a preliminary

conference shall be held not later than thirty (30) days after the last
answer is filed. Here, the rules on pre-trial in ordinary cases shall apply
except when inconsistent with the rules on summary procedure (Sec. 7,
II, 1991 Revised Rules on Summary Procedure). The tenor of the rule
indicates the mandatory nature of preliminary conference in cases
subject to summary procedure.

The failure of the plaintiff to appear in the preliminary conference

shall be cause for dismissal of his complaint and the defendant who

432
appears in the absence of the plaintiff shall be entitled to judgment on
his counterclaim. All cross-claims shall be dismissed.

If a sole defendant fails to appear, the plaintiff shall be entitled to

judgment. This rule shall be inapplicable if one of several defendants
who are sued under a common cause of action and had pleaded a
common defense shall appear at the preliminary conference.

Within five (5) days from the termination of the preliminary

conference, the court shall issue an order stating the matters taken up
in the conference.

Section 8. Court-Annexed Mediation. — After pre-trial and, after issues

are joined, the court shall refer the parties for mandatory court-annexed
mediation.

The period for court-annexed mediation shall not exceed thirty (30)
calendar days without further extension. (n)

What shall the court do after the pre-trial and, after the issues are joined?

After pre-trial and, after issues are joined, the court shall refer the
parties for mandatory court-annexed mediation.

The period for court-annexed mediation shall not exceed thirty (30)
calendar days without further extension.

Section 9. Judicial Dispute Resolution. — Only if the judge of the court

to which the case was originally raffled is convinced that settlement is
still possible, the case may be referred to another court for judicial
dispute resolution. The judicial dispute resolution shall be conducted
within a non-extendible period of fifteen (15) calendar days from notice
of failure of the court-annexed mediation.

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If judicial dispute resolution fails, trial before the original court shall
proceed on the dates agreed upon.

All proceedings during the court-annexed mediation and the judicial

dispute resolution shall be confidential. (n)

When shall the court refer the case for judicial dispute resolution?

When shall the case be referred to Judicial Dispute Resolution?

Only if the judge of the court to which the case was originally
raffled is convinced that settlement is still possible, the case may be
referred to another court for judicial dispute resolution. The judicial
dispute resolution shall be conducted within a non-extendible period of
fifteen (15) calendar days from notice of failure of the court-annexed
mediation.

Section. 10. Judgment after pre-trial. — Should there be no more

controverted facts, or no more genuine issue as to any material fact, or
an absence of any issue, or should the answer fail to tender an issue, the
court shall, without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule 35, motu
proprio include in the pre-trial order that the case be submitted for
summary judgment or judgment on the pleadings, without need of
position papers or memoranda. In such cases, judgment shall be
rendered within ninety (90) calendar days from termination of the pre-
trial.

The order of the court to submit the case for judgment pursuant to this
Rule shall not be the subject to appeal or certiorari. (n)

What is the rule with respect to Judgment after Pre-trial?

434
 1. Should there be no more controverted facts, or
2. No more genuine issue as to any material fact, or
3. An absence of any issue, or
4. Should the answer fail to tender an issue,
5. The court shall, without prejudice to a party moving for
judgment on the pleadings under Rule 34 or summary
judgment under Rule 35, motu proprio include in the pre-trial
order that the case be submitted for summary judgment or
judgment on the pleadings, without need of position papers or
memoranda. In such cases, judgment shall be rendered within
ninety (90) calendar days from termination of the pre-trial.

It is clear from the foregoing provisions that should the court

determine that (1) there be no more controverted facts; or (2) no more
genuine issue as to any material facts; or (3) there is absence of any
issue; or (4) that the Answer fails to tender an issue, the court, may
motu proprio, include in the Pre-trial Order that the case be submitted
for summary judgment or judgment on the pleadings.

Is the order of the court to submit the case for judgment be the subject
of appeal or certiorari?

No. The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or certiorari. (n)

RULE 19

INTERVENTION

Section 1.Who may intervene. — A person who has a legal interest in

the matter in litigation, or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the
court or of an officer thereof may, with leave of court, be allowed to

435
intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not the intervenor's
rights may be fully protected in a separate proceeding.

Intervention, defined
Intervention is a proceeding in a suit or action by which a third
person is permitted by the court to make himself a party, either joining
plaintiff in claiming what is sought by the complaint, or uniting with
defendant in resisting the claims of plaintiff, or demanding something
adversely to both of them.
It is a remedy by which a third party, not originally impleaded in
the proceedings, becomes a litigant therein for a certain purpose: to
enable the third party to protect or preserve a right or interest that
may be affected by those proceedings.
Nature of intervention (BAR 2011)
1. Intervention is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein to
enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings.

2. Intervention is a legal proceeding by which a third person is

permitted by the court to become a party by intervening in a
pending action after meeting the conditions and requirements set
by the Rules of Court. The third person who intervenes is one not
originally impleaded in the action.

3. Intervention is not a matter of right but may be permitted by the

courts when the applicant shows fact which satisfies the
requirements of the law authorizing intervention.

436
Who may intervene?

A person may by leave of court intervene if he has a legal interest:

1. In the matter in litigation, or

2. In the success of either of the parties, or

3. An interest against both, or

4. Is so situated as to be adversely affected by a distribution or other

disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the
action.

What are the duties of the court in case of intervention?

The court shall consider the following matters in the

determination of intervention:

1. Whether or not the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties, and

2. Whether or not the intervenor's rights may be fully protected

in a separate proceeding.

Granting or denial of Intervention discretionary upon the court

It should be stressed that the allowance or disallowance of a
motion for intervention is addressed to the sound discretion of the
courts. The permissive tenor of the Rules of Court shows the intention
to give the courts the full measure of discretion in allowing or
disallowing the intervention. Once the courts have exercised this

437
discretion, it could not be reviewed by certiorari or controlled by
mandamus unless it could be shown that the discretion was exercised
in an arbitrary or capricious manner. (Carbonilla vs. Board of Airlines
Representatives, G.R. No. 193247, September 14, 2011)
Purpose of Intervetion
The purpose of intervention is to enable a stranger to an action to
become a party in order for him to protect his interest and for the court
to settle all conflicting claims. Intervention is allowed to avoid
multiplicity of suits more than on due process considerations. (Virra
Mall Tenants Asso., Inc. vs. Virra Mall Greenhills Asso, G.R. No. 182902,
October 5, 2011)
What are the requisites for an intervention by a non-party in an action
pending in court? (BAR 2000)
Intervention may be allowed when the person who desires to
intervene has a legal interest in the following:
(a)The matter of litigation;
(b) The success of either of the parties;
(c)Is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of
an officer thereof (Sec. 1, Rule 19)

Examples:
1. In action for foreclosure of mortgage initiated by a bank
against the mortgagor, the alleged owners of the land
sought to be foreclosed may intervene (Roxas v. Dinglasan,
28 SCRA 430).

438
 2. The assignee of a property who assumed payment of
whatever amount may be finally adjudged against the
assignor may intervene in a proceeding involving the
execution of the property pursuant to a judgment (Robles v.
Timario, 6 SCRA 380).

3. The purchaser of the subdivided portions of parcel of land,

which is the subject matter of partition among the several
heirs, may file a motion for intervention since he will be
adversely affected by the distribution of the parcel of land
among the heirs.

4. In a suit between Mr. P and Mr. D involving ownership of a

parcel of land. Mr.T, who believes, he is the rightful owner
of the land subject of the litigation, may be allowed by the
court to intervene in the action.

BAR 1991

Enforcing a writ of execution issued by the Pasig RTC in a civil

action, the sheriff attached several pieces of machinery and equipment
found in defendant’s place of business.

Antonio Sadalay filed with the sheriff an affidavit of third-party

claim stating that the attached properties belong to him, not to the
defendant. Can Sadalay intervene in the case and ask the Pasig RTC to
resolve his third-party claim?

Suggested answer

439
 Sadalay cannot intervene in the case. Under Sec. 2, Rule 19 of the
Rules of Court, intervention may be done only before rendition of the
judgment in the case and not after the judgment has become final and
executor.
NOTE:
A third person whose property was seized to answer for the
obligation of another may invoke the supervisory power of the court
which authorized the execution for the purpose of determining
whether the sheriff has acted correctly in the performance of bhis
duties in executing the judgment. If the sheriff has acted wrongly, it can
require the sheriff to restor the property to the claimant’s possession.
The court, however, in doing so, cannot pass on the question of title to
the property with finality. This remedy is without prejudice to the right
of the claimant to vindicate his claim to the property in a separate
action.
The allowance or disallowance of a motion for intervention rests
on the sound discretion of the court after consideratoion of the
appropriate cirucmstances. It is not an absolute right as it can be
secured only in accordance with the terms of the applicable statute or
rule. In claiming the right to intervene, the intervenor must comply with
the requirements laid down by Rule 19 of the Rules of Court (Office of
the Ombudsman v. Samaniego, 564 SCRA 567)

What are the differences between Intervention (Rule 19) and

Interpleader (Rule 62)?

Intervention and Interpleader should be distinguished in the

following manner as follows, to wit:

440
 1. Intervention is an ancillary action, while interpleader is an original
action;

2. Intervention is proper in any of of the four situations mentioned

in this Rule; while interpleader presupposes that the plaintiff ha
sno interest in the subject matter of the action or has an interest
therein, which in whole or in part, is not disputed by the other
parties to the action;

3. In a complaint for intervention, the defendants are already

original parties to the pending suit, while in interpleader, the
defendants afre being sued precisely to impleade them;

4. Intervention can be filed where the original action is pending,

while interpleader can be filed at the first instance with the
Regional Trial Court or Metropolitan Trial Court, Municipal Trial
Court depending on the nature of the property and its assessed
value; and

5. The remedy in case of denial of intervention is to appeal the

denial being a final order or to file a separate action, while the
remedy in interpleader is to appeal the judgment.

Section 2.Time to intervene. — The motion to intervene may be filed

at any time before rendition of judgment by the trial court. A copy of
the pleading-in-intervention shall be attached to the motion and
served on the original parties. (n)

When to file a motion to intervene?

The motion to intervene may be filed at any time BEFORE
rendition of judgment by the trial court. After trial and decision in a
case, intervention can no longer be permitted.

441
When to file a motion to intervene?

The motion to intervene may be filed at any time before rendition

of judgment by the trial court.

What must be attached to the motion to intervene?

A copy of the pleading-in-intervention shall be attached to the

motion and served on the original parties.

Section 3.Pleadings-in-intervention. — The intervenor shall file a

complaint-in-intervention if he OR SHE asserts a claim against either
or all of the original parties, or an answer-in-intervention if he OR SHE
unites with the defending party in resisting a claim against the latter.

What is the rule on the pleadings-in-intervention?

Parties in intervention shall comply with the necessary pleadings:
a. The intervenor shall file a COMPLAINT-IN-INTERVENTION if he
asserts a claim against either or all of the original parties; or

b. An ANSWER-IN-INTERVENTION if he unites with the defending

party in resisting a claim against the latter.

Section 4. Answer to complaint-in-intervention. — The answer to the

complaint-in-intervention shall be filed within fifteen (15) CALENDAR
days from notice of the order admitting the same, unless a different
period is fixed by the court.

When to file a responsive pleading?

442
 The answer to the complaint-in-intervention shall be filed within
fifteen (15) calendar days from notice of the order admitting the same,
unless a different period is fixed by the court.

Failure to file an answer-in-intervention; Default.

Lim points out that an answer-in-intervention cannot give rise to
default since the filing of such an answer is only permissive. But Sec. 4,
Rule 19 requires the original parties to file an answer to the complaint-
in-intervention within 15 days from notice of the order admitting the
same, unless a different period is fixed by the court. This changes the
procedure under the former rule where such an answer was regarded
as optional. Thus, Lim’s failure to file the required answer can give rise
to default. (Natividad Lim. vs. NPC, G.R. No. 178789, November 14,
2012).
Sample Form of Motion for Leave of Court to File Intervention
For: Sum of Money with Damages
MOTION FOR LEAVE OF COURT TO FILE INTERVENTION
COMES NOW, the Intervenor, through the undersigned counsel and
unto this Honorable Court, and with prior leave of court, most
respectfully avers:
1. That he has legal interest in the matter in litigation in the above-
entitled action for accounting between plaintiff and defendant;

2. That he has been, for the last seven (7) years, and still is, the
caretaker of the commercial apartment for which is being asked
accounting….

443
 3. That, for the last seven (7) years, the Intervenor had not been
given even a single centavo corresponding to his 10% share in the
said net proceeds.

WHEREFORE, premises considered, it is most respectfuly prayed

of this Honorable Court that the instant motion for intervention be
granted and the attached Complaint in Intervention be admitted.

Other relief and remedies as may be deemd just and equitable

under the premises are likewise prayed for.

Procedure for intervention

1. The intervenor shall file a motion for intervention. To this motion
shall be attached his pleading-in-intervnetion and serve upon the
original parties (Sec. 2, Rule 19, Rules of Court);

2. The pleading-in-intervention to be filed depends upon the

purpose of the intervention. If he wants to assert a claim against
either or all of the original parties, the pleading shall be called a
complaint-in-intervention. If the pleading seeks to unite with the
defending party in resisting a claim against the latter, he shall file
an answer-in-intervention (Sec.3, Rule 1, Rules of Court);

3. The answer to the complaint-in-intervention shall be filed within

fifteen (15) calendar days from notice of the order admitting the
same, unless a different period is fixed by the courts (Sec.4, Rule
19, Rules of Court).

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 RULE 20

CALENDAR OF CASES

Section 1.Calendar of cases. — The clerk of court, under the direct

supervision of the judge, shall keep a calendar of cases for pre-trial,
for trial, those whose trials were adjourned or postponed, and those
with motions to set for hearing. Preference shall be given to habeas
corpus cases, election cases, special civil actions, and those so
required by law.

Section 2.Assignment of cases. — The assignment of cases to the

different branches of a court shall be done exclusively by raffle. The
assignment shall be done in open session of which adequate notice
shall be given so as to afford interested parties the opportunity to be
present.

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 RULE 21

SUBPOENA

Section 1.Subpoena and subpoena duces tecum. — Subpoena is a

process directed to a person requiring him OR HER to attend and to
testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition.
It may also require him OR HER to bring with him OR HER any books,
documents, or other things under his OR HER control, in which case it
is called a subpoena duces tecum.

What is a subpoena and subpoena duces tecum?

Subpoena is a process directed to a person requiring him to

attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his
deposition.

It may also require him to bring with him any books, documents,
or other things under his control, in which case it is called a
subpoena duces tecum.

Section 2.By whom issued. — The subpoena may be issued by —

(a) The court before whom the witness is required to attend;

(b) The court of the place where the deposition is to be taken;

(c) The officer or body authorized by law to do so in connection

with investigations conducted by said officer or body; or

(d) Any Justice of the Supreme Court or THE Court of Appeals in

any case or investigation pending within the Philippines.

446
When application for a subpoena to a prisoner is made, the judge or
officer shall examine and study carefully such application to
determine whether the same is made for a valid purpose.

No prisoner sentenced to death, reclusion perpetua or life

imprisonment and who is confined in any penal institution shall be
brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court

Section 3.Form and contents. — A subpoena shall state the name of

the court and the title of the action or investigation, shall be directed
to the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable description
of the books, documents or things demanded which must appear to
the court prima facie relevant.

Section 4.Quashing a subpoena. — The court may quash a

subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or things does
not appear, or if the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that

the witness is not bound thereby. In either case, the subpoena may be
quashed on the ground that the witness fees and kilometrage allowed
by these Rules were not tendered when the subpoena was served.

Grounds for Quashing a Subpoena Duces Tecum

The court may quash a subpoena duces tecum upon motion

promptly made and, in any event, at or before the time specified
therein, based on the following grounds:

447
(1)Unreasonable and

(2) Oppressive, or

(3) The relevancy of the books, documents or things does not appear,
or

(4) If the person in whose behalf the subpoena is issued fails to advance
the reasonable cost of the production thereof.

Ground for Quashing A Subpoena Ad Testificandum

The court may quash a subpoena ad testificandum on the ground

that

(1)The witness is not bound thereby.

(2) In either case, the subpoena may be quashed on the ground that the
witness fees and kilometrage allowed by these Rules were not tendered
when the subpoena was served.

Section 5.Subpoena for depositions. — Proof of service of a notice to

take a deposition, as provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for
the persons named in said notice by the clerk of the court of the place
in which the deposition is to be taken. The clerk shall not, however,
issue a subpoena duces tecum to any such person without an order of
the court.

Section 6.Service. — Service of a subpoena shall be made in the same

manner as personal or substituted service of summons. The original
shall be exhibited and a copy thereof delivered to the person on
whom it is served, tendering to him the fees for one day's attendance
and the kilometrage allowed by these Rules, except that, when a
subpoena is issued by or on behalf of the Republic of the Philippines

448
or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena
is duces tecum, the reasonable cost of producing the books,
documents or things demanded shall also be tendered.

COSTS FOR COURT ATTENDANCE AND THE PRODUCTION OF

DOCUMENTS AND OTHER MATERIALS SUBJECT OF THE SUBPOENA
SHALL BE TENDERED OR CHARGED ACCORDINGLY.

Section 7.Personal appearance in court. — A person present in court

before a judicial officer may be required to testify as if he OR SHE
were in attendance upon a subpoena is sued by such court or officer.

Section 8.Compelling attendance. — In case of failure of a witness to

attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a warrant
to the sheriff of the province, or his OR HER deputy, to arrest the
witness and bring him before the court or officer where his OR HER
attendance is required, and the cost of such warrant and seizure of
such witness shall be paid by the witness if the court issuing it shall
determine that his OR HER failure to answer the subpoena was willful
and without just excuse.

Section 9.Contempt. — Failure by any person without adequate cause

to obey a subpoena served upon him OR HER shall be deemed a
contempt of the court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto shall be
punished in accordance with the applicable law or Rule.

Section 10. Exceptions. — The provisions of sections 8 and 9 of this

Rule shall not apply to a witness who resides more than one hundred
(100) kilometers from his OR HER residence to the place where he OR
SHE is to testify by the ordinary course of travel, or to a detention

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prisoner if no permission of the court in which his case is pending was
obtained.

RULE 22

Computation of Time

Section 1.How to compute time. — In computing any period of time

prescribed or allowed by these Rules, or by order of the court, or by
any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date
of performance included. If the last day of the period, as thus
computed, falls on a Saturday a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day.

How to Compute Time

In computing any period of time prescribed or allowed by these

Rules, or by order of the court, or by any applicable statute, the day of
the act or event from which the designated period of time begins to run
is to be excluded and the date of performance included. If the last day
of the period, as thus computed, falls on a Saturday a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the
next working day.

Example

B, defendant, was summoned on December 16, 1999. Under

Section 1, Rule 11, B has a period of 30 calendar days to file his answer
from service of summons on him.

Under the above provisions, “exclude the first and included the
last” rule, you compute this 30-day period from December 17, 1999. So,
B will have up to January 16, 2000, to file his answer. But assuming that
January 16, 2000, is a legal holiday, so the 30-day period will expire on
450
the following day or on January 17, 2000, assuming that it is not a
Saturday or a Sunday or a legal holiday in the place where the court
sits.

Section 2. Effect of interruption. — Should an act be done which

effectively interrupts the running of the period, the allowable period
after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.

The day of the act that caused the interruption shall be excluded in
the computation of the period.

Effect of Interruption

B, defendant, was summoned on January 2, 2020. Under Section

1, Rule 11 of the Rules of Court, in relation to Section 1, Rule 22, the
counting of the 30-day period shall commence on January 3, 2020, and
so B has until February 1, 2020, to file his answer. Let us assume that B,
filed on January 20, 2020, a motion to dismiss. The filing of said motion
to dismiss would effectively suspend the running of the period for filing
of the answer. Since B has already consumed 17 days of his 30-day
period, when he filed his motin to dismiss, B has, therefore, the
remaining 13 days to file his answer. This is the so-called “allowable
period” referred to in Sec.2, Rule 22.

Let us assume that the motion to dismiss was denied. What is the
effect of the denial of the motion to dismiss on the remaining period
within which to file the answer?

It will start to run. It will resume its running. Because it started but
when the motion to dismiss was filed, the running was interrupted but
when the motion to dismiss was denied, the running must resume.

The question is” When will this “allowable period” start to run?

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 Let us assume that B received the order of denial on February 20,
2020, this allowable period starts to run the day following the receipt
on February 20, 2020 or on February 21, 2020. Accordingly, B has the
remaining 13 days counting from February 21, 2020, or until March 4,
2020 within which to file his answer.

If a party files a motion for extension, and the same was granted, when
should the due date for the extension period be counted?

In case a motiOn for extension is granted, the due date for the
extended period shall be counted from the ORIGINAL DUE DATE, not
from the next working day on which the motion for extension was filed
(Montajes vs. People, G.R. No. 183449, March 12, 2012) For example,
the due date to file an answer is on February 1, 2020, and the motion
for extension of time to file as answer was granted for another 30 days,
the extended period shall be counted from February 1, 2020, which is
the original due date.

MODES OF DISCOVERY (Rules 23 to 28)

Nature of Modes of Discovery:

A discovery is the disclosure of facts resting in the knowledge of
the defendant, or is the production of deeds, writings or things in his
possession or power, in order to maintain the right or title of the party
asking it, in a suit or proceeding.
In general, a discovery is a device employed by a party to obtain
information about relevant matters on the case from the adverse party
in preparation for the trial. As contemplated by the Rules, the device
may be to be used in the trial.
Purposes of the modes of discovery
Modes of discovery are intended for the following purposes:

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 1. It is used as a device to narrow and clarify basic issues between
the parties;
2. It is used as a device for ascertaining facts relative to the issue
of the case;
3. To obtain full knowledge of the issues and facts of the case;
4. To avoid perjury and detection of false and fraudulent claims
and defences;
5. To expedite the proceedings; and
6. To simplify issues of the case.
The broad purpose of discovery procedure is to permit mutual
knowledge before trial of all relevant facts gathered by both parties so
that either party may compel the other to disgorge facts whatever he
has in his possession.
In the pratical sense, the modes of discovery are designed to
serve as an additional device aside from a pre-trial.
A pre-trial is designed to narrow and clarify the basic issues
between the parties, to ascertain the facts relative to the issues and to
enable the parties to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent the said trials to be carried
out in the dark. It is intended to make certain that all inssues necessary
to the disposition of the case are properly raised. Thus, obviate the
elements of surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact that they intend to raise at the
trial, except such as may involve privileged or impeaching matters
(Tinio v. Manzano, 307 SCRA 460).
Duty of the court in relation to the mode of discovery
The modes of discovery are considered by the Supreme Court as
vital components of case management in pre-trial courts. Hence, aside

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from preparing the summons within one (1) day from receipt of the
complaint, the court is required to issue and order requiring the parties
to avail of interrogatories to parties under Rule 25 and request for
admission by adverse party under Rule 26 or at their discretion make
use of depositions under Rule 23 or other measures under Rules 27 and
28 within five (5) days from the filing of the answer. A copy of this order
shall be served upon the defendant together with summons. A copy of
the order shall also be served upon the plaintiff (A.M. No. 03-1-0-SC,
July 13, 2004)
What is the nature of the Modes of Discovery
The application of the rules on modes of discovery rests upon the
sound discretion of the court. In the same vein, the determination of
the sanction to be imposed upon a party who fails to comply with the
modes of discovery rest on the same sound judicial discretion. It is the
duty of the courts to examine thoroughly the circumstances of each
case and to determine the applicability of the modes of discovery,
bearing always in mind the aim to attain an expeditious administration
of justice. (Limos v. Spouses Odones, G.R. No. 188979, August 11,
2011).
BAR Question
What are the different Modes of Discovery under the Rules of Court?
ANSWER:
a. Deposition pending action.
b. Deposition before action or pending appeal.
c. Interrogatories to parties.
d. Admission by adverse party.
e. Production or inspection of documents and things; and
f. Physical and mental examination of persons.

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MODES OF DISCOVERY UNDER THE RULES OF COURT (BAR 2000)
(a)Depositions pending action (Rule 23)
(b) Depositions before action or pending appeal (Rule 24)
(c)Interrogatories to parties (Rule 25)
(d) Admission by adverse by party (Rule 26)
(e)Production or inspection of documents and things (Rule 27); and
(f) Physical and mental examination of persons (Rule 28)

RULE 23

DEPOSITIONS PENDING ACTION

Section 1.Depositions pending action, when may be taken. — UPON

EX PARTE MOTION OF A PARTY, the testimony of any person, whether
a party or not, may be taken, at the instance of any party, by
deposition upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a subpoena
as provided in Rule 21. Depositions shall be taken only in accordance

455
with these Rules. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court prescribes.

DEPOSITION PENDING ACTION (RULE 23)

Deposition refers to the taking of the testimony of a witness taken
out of court pursuant to an authority from the rules of procedure,
reduced to writing, duly authenticated, and intended.
A deposition is the taking of the testimony of any person, whether
he be a party or not, but at the instance of a party to the action. This
testimony is taken out of court.
Two methods for taking deposition
As described by the Rules of Court (Sec. 1. Rule 23), it is the taking
of the testimony of any person, upon ORAL EXAMINATION or WRITTEN
INTERROGATORIES, whether a party or not, at the instance of any
party.
A deposition may be sought for use in a pending action (Rule 23),
a future action (Rule 24), or for use in a pending appeal (Rule 24)
If the deposition is for use during a pending action, it is commonly
called a deposition de benne esse and is governed by Rule 23. If it is to
perpetuate a testimony for use in future proceedings as when it is
sought before the existence of an action, or for cases on appeal, it is
called a deposition in perpetuam rei memoriam and is governed by
Rule 24.
HOW TAKEN
A deposition may be taken either with leave of court or without
leave. Leave of court is required after jurisdiction has been obtained
by the court over the defendant or over the property subject of the
action but before an answer has been served. Leave of court is NOT
456
required after an answer has been served. Leave of Court is always
required when the deposition to be taken is that of a person confined
in prison.
Distinctions between Deposition and Affidavit
1. In deposition taking of the testimony requires notice to the other
party; while in affidavit, it may be taken ex parte;

2. In deposition, it may be taken in the form of a question and

answer based on oral examination or written interrogatories
before authorized persons; while affidavit being ex parte need not
be in such form;

3. Deposition may be used as evidence in a pending case; while

affidavit may or may not be used in a proceeding.

Sample form:
MOTION FOR LEAVE TO TAKE DEPOSITION
PLAINTIFF, by counsel and to this Honorable Court, respectfully
alleges:
That this Honorable Court has already acquired jurisdiction over the
person of the defendant by valid service of summons upon him on
September 12, 2015;
1. That pursuant to Sec. 1 of Rule 23 of the Rules of Court,
deposition may be taken by leave of court after the trial court
shall have acquired over the person of the defendant but before
he files his answer.

457
 WHEREFORE, plaintiff respectfully prays that he be given leave of
court to take the deposition of Mr. Dela Cruz, with address at Brgy. San
Roque, Jaro, Iloilo City, at such time and place before a Notary Public,
to be taken after leave of court shall have been granted.
Such other relief and remedies as may be deemed just and
equitable under the premises are likewise prayed for.

Section 2.Scope of examination. — Unless otherwise ordered by the

court as provided by section 16 or 18 of this Rule, the deponent may
be examined regarding any matter, not privileged, which is relevant to
the subject of the pending action, whether relating to the claim or
defense of any other party, including the existence, description,
nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having
knowledge of relevant facts.

SCOPE OF EXAMINATION
As a rule, deponent may be examined as to any matter, not
privileged, which is relevant to the subject of the pending action,
whether relating to the claim or defense of any other party, including
the existence, description, nature, custody, condition and location of
any books, documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts.
Unless otherwise ordered by the court, the deponent may be
examined regarding any matter not privileged, which is relevant to the
pending action, whether relating to the claim or defense of any party,
including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the
indeityt and location of persons having knowledge of relevant facts.

458
Section 3.Examination and cross-examination. — Examination and
cross-examination of deponents may proceed as permitted at the trial
under sections 3 to 18 of Rule 132.

The deponent may be examined or cross examined following the

procedures for witnesses in a trial. He may be asked questions on
direct, cross, re-direct or re-cross. He has the same rights as a witness
and may be impeached like a court witness because Secs. 3 to 18 of
Rule 132 apply to a deponent.

Secs. 3 to 18 of Rule 132

SEC. 3. RIGHTS AND OBLIGATION OF A WITNESS. – A WITNESS MUST ANSWER

QUESTIONS, ALTHOUGH HIS ANSWER MAY TEND TO ESTABLISH A CLAIM AGAINST HIM.
HOWEVER, IT IS THE RIGHT OF A WITNESS:
(1) TO BE PROTECTED FROM IRRELEVANT, IMPROPER, OR INSULTING QUESTIONS,
AND FROM HARSH OR INSULTING DEMEANOR;
(2)NOT TO BE DETAINED LONGER THAN THE INTEREST OF JUSTICE REQUIRE;
(3)NOT TO BE EXAMINED EXCEPT ONLY AS TO MATTER PERTINENT TO THE ISSUE;
(4)NOT TO GIVE AN ANSWER WHICH WILL TEND TO SUBJECT HIM TO A PENALTY
FOR AN OFFENSE UNLESS OTHERWISE PROVIDED BY LAW; OR
(5)NOT TO GIVE AN ANSWER WHICH WILL TEND TO DEGRADE HIS REPUTATION,
UNLESS IT BE TO THE VERY FACT AT ISSUE OR TO A FACT FROM WHICH THE FACT
IN ISSUE WOULD BE PRESUMED. BUT A WITNESS MUST ANSWER TO THE FACT
OF HIS PREVIOUS FINAL CONVICTION FOR AN OFFENSE.
SEC. 4. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS. – THE ORDER IN
WHICH AN INDIVIDUAL WITNESS MAY BE EXAMINED IS AS FOLLOWS:
(A) DIRECT EXAMINATION BY THE PROPONENT;
(B) CROSS- EXAMINATION BY THE OPPONENT;
(C) RE-DIRECT EXAMINATION BY THE PROPONENT;
(D) RE-CROSS EXAMINATION BY THE OPPONENT.

459
SEC. 5. DIRECT EXAMINATION. – DIRECT EXAMINATION IS THE EXAMINATION-IN-
CHIEF OF A WITNESS BY THE PARTY PRESENTING HIM ON THE FACTS RELEVANT TO THE
ISSUE.
SEC. 6. CROSS-EXAMINATION; ITS PURPOSE AND EXTENT. – UPON THE TERMINATION
OF THE DIRECT EXAMINATION, THE WITNESS MAY BE CROSS-EXAMINED BY THE
ADVERSE PARTY AS TO ANY MATTERS STATED IN THE DIRECT EXAMINATION, OR
CONNECTED THEREWITH, WITH SUFFICIENT FULLNESS AND FREEDOM TO TEST HIS
ACCURACY AND TRUTHFULNESS AND FREEDOM FROM INTEREST OR BIAS, OR THE
REVERSE, AND TO ELICIT ALL IMPORTANT FACTS BEARING UPON THE ISSUE.
SEC. 7. RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT. – AFTER THE CROSS-
EXAMINATION OF THE WITNESS HAS BEEN CONCLUDED, HE MAY BE RE-EXAMINED BY
THE PARTY CALLING HIM, TO EXPLAIN OR SUPPLEMENT HIS ANSWERS GIVEN DURING
THE CROSS-EXAMINATION. ON RE-DIRECT EXAMINATION, QUESTIONS ON MATTERS
NOT DEALT WITH DURING THE CROSS-EXAMINATION, MAY BE ALLOWED BY THE
COURT IN ITS DISCRETION.
SEC. 8. – RE-CROSS EXAMINATION. – UPON THE CONCLUSION OF THE RE-DIRECT
EXAMINATION, THE ADVERSE PARTY MAY RE-CROSS-EXAMINE THE WITNESS ON
MATTERS STATE DIN HIS RE-DIRECT EXAMINATION, AND ALSO ON SUCH OTHER
MATTERS AS MAY BE ALLOWED BY THE COURT IN ITS DISCRETION.
SEC. 9. RECALLING WITNESS. – AFTER THE EXAMINATION OF A WITNESS BY BOTH
SIDES HAS BEEN CONCLUDED, THE WITNESS CANNOT BE RECALLED WITHOUT LEAVE OF
COURT. THE COURT WILL GRANT OR WITHHOLD LEAVE IN ITS DISCRETION, AS THE
INTEREST OF JUSTICE MAY REQUIRE.
SEC. 10. LEADING AND MISLEADING QUESTIONS. – A QUESTION WHICH SUGGESTS TO
THE WITNESS THE ANSWERS WHICH THE EXAMINING PARTY DESIRES IS A LEADING
QUESTION. IT IS NOT ALLOWED, EXCEPT:
1. ON CROSS-EXAMINATION;
2.ON PRELIMINARY MATTERS;

460
3.WHEN THERE IS DIFFICULTY IN GETTING DIRECT AND INTELLIGIBLE ANSWERS FROM A
WITNESS WHO IS IGNORANT, OR A CHILD OF TENDER YEARS, OR IS OF FEEBLE MIND,
OR A DEAF-MUTE;
4. OF AN UNWILLING OR HOSTILE WITNESS; OR
OF A WITNESS WHO IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING
AGENT OF A PUBLIC OR PRIVATE CORPORATION OR OF A PARTNERSHIP OR
ASSOCIATION WHICH IS AN ADVERSE PARTY.
A MISLEADING QUESTION IS ONE WHICH ASSUMES AS TRUE A FACT NOT YET
TESTIFIED TO BY THE WITNESS, OR CONTRARY TO THAT WHICH HE HAS PREVIOUSLY
STATED. IT IS NOT ALLOWED.
SEC. 11. IMPEACHMENT OF ADVERSE PARTY’S WITNESS. – A WITNESS MAY BE
IMPEACHED BY THE PARTY AGAINST WHOM HE WAS CALLED, BY CONTRADICTORY
EVIDENCE, BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY, OR
INTEGRITY IS BAD, OR BY EVIDENCE THAT HE HAS MADE AT OTHER TIMES STATEMENTS
INCONSISTENT WITH HIS PRESENT TESTIMONY, BUT NOT BY EVIDENCE OF PARTICULAR
WRONGFUL ACTS, EXCEPT THAT IT MAY BE SHOWN BY THE EXAMINATION OF THE
WITNESS, OR THE RECORD OF THE JUDGMENT, THAT HE HAS BEEN CONVICTED OF AN
OFFENSE.
SEC. 12. PARTY MAY NOT IMPEACH HIS OWN WITNESS. – EXCEPT WITH RESPECT TO
WITNESSES REFERRED TO IN PARAGRAPHS (D) AND (E) OF SECTION 10, THE PARTY
PRODUCING A WITNESS IS NOT ALLOWED TO IMPEACH HIS CREDIBILITY.
A WITNESS IS CONSIDERED AN UNWILLING OR HOSTILE ONLY IF SO DECLARED
BY THE COURT UPON ADEQUATE SHOWING OF HIS ADVERSE INTEREST, UNJUSTIFIED
RELUCTANCE TO TESTIFY, OR HIS HAVING MISLED THE PARTY INTO CALLING HIM TO
THE WITNESS STAND.
THE UNWILLING OR HOSTILE WITNESS SO DECLARED, OR THE WITNESS WHO IS
AN ADVERSE PARTY, MAY BE IMPEACHED BY THE PARTY PRESENTING HIM IN ALL
RESPECTS AS IF HE HAD BEEN CALLED BY THE ADVERSE PARTY, EXCEPT BY EVIDENCE OF
HIS BAD CHARACTER. HE MAY ALSO BE IMPEACHED AND CROSS- EXAMINED BY THE

461
ADVERSE PARTY, BUT SUCH CROSS-EXAMINATION MUST ONLY BE ON THE SUBJECT
MATTER OF HIS EXAMINATION-IN-CHIEF.
SEC. 13. HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENT. –
BEFORE A WITNESS CAN BE IMPEACHED BY EVIDENCE THAT HE HAS MADE AT OTHER
TIMES STATEMENTS INCONSISTENT WITH HIS PRESENT TESTIMONY, THE STATEMENTS
MUST BE RELATED TO HIM, WITH THE CIRCUMSTANCES OF THE TIMES AND PLACES
AND THE PERSONS PRESENT, AND HE MUST BE ASKED WHETHER HE MADE SUCH
STATEMENTS, AND IF SO, ALLOWED TO EXPLAIN THEM. IF THE STATEMENTS BE IN
WRITING THEY MUST BE SHOWN TO THE WITNESS BEFORE ANY QUESTION IS PUT TO
HIM CONCERNING THEM.
SEC. 14. EVIDENCE OF GOOD CHARACTER OF WITNESS. – EVIDENCE OF A GOOD
CHARACTER OF A WITNESS IS NOT ADMISSIBLE UNTIL SUCH CHARACTER HAS BEEN
IMPEACHED.
SEC. 15. EXCLUSION AND SEPARATION OF WITNESSES. – ON ANY TRIAL OR HEARING,
THE JUDGE MAY EXCLUDE FROM THE COURT ANY WITNESS NOT AT THE TIME UNDER
EXAMINATION, SO THAT HE MAY NOT HEAR THE TESTIMONY OF OTHER WITNESSES.
THE JUDGE MAY ALSO CAUSE WITNESSES TO BE KEPT SEPARATE AND TO BE PREVENTED
FROM CONVERSING WITH ONE ANOTHER UNTIL ALL SHALL HAVE BEEN EXAMINED.
SEC. 16. WHEN WITNESS MAY REFER TO MEMORANDUM. – A WITNESS MAY BE
ALLOWED TO REFRESH HIS MEMORY RESPECTING A FACT, BY ANYTHING WRITTEN OR
RECORDED BY HIMSELF OR UNDER HIS DIRECTION AT THE TIME WHEN THE FACT
OCCURRED, OR IMMEDIATELY THEREAFTER, OR AT ANY OTHER TIME WHEN THE FACT
WAS FRESH IN HIS MEMORY AND HE KNEW THAT THE SAME WAS CORRECTLY WRITTEN
OR RECORDED; BUT IN SUCH CASE THE WRITING OR RECORD MUST BE PRODUCED AND
MAY BE INSPECTED BY THE ADVERSE PARTY, WHO MAY, IF HE CHOOSES, CROSS-
EXAMINE THE WITNESS UPON IT, AND MAY READ IT IN EVIDENCE. SO, ALSO A WITNESS
MAY TESTIFY FROM SUCH A WRITING OR RECORD, THOUGH HE RETAIN NO
RECOLLECTION OF THE PARTICULAR FACTS, IF HE IS ABLE TO SWEAR THAT THE

462
WRITING OR RECORD CORRECTLY STATED THE TRANSACTION WHEN MADE; BUT SUCH
EVIDENCE MUST BE RECEIVED WITH CAUTION.
SEC. 17. WHEN PART OF TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE,
THE REMAINDER ADMISSIBLE. – WHEN PART OF AN ACT, DECLARATION,
CONVERSATION, WRITING OR RECORD IS GIVEN IN EVIDENCE BY ONE PARTY, THE
WHOLE OF THE SAME SUBJECT MAY BE INQUIRED INTO BY THE OTHER, AND A
DETACHED ACT, DECLARATION, CONVERSATION, WRITING OR RECORD IS GIVEN IN
EVIDENCE, ANY OTHER ACT, DECLARATION, CONVERSATION, WRITING OR RECORD
NECESSARY TO ITS UNDERSTANDING MAY ALSO BE GIVEN IN EVIDENCE.
SEC. 18. RIGHTS TO INSPECT WRITING SHOWN TO WITNESS. – WHENEVER A WRITING
IS SHOWN TO A WITNESS, IT MAY BE INSPECTED BY THE ADVERSE PARTY.

Section 4.Use of depositions. — At the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any one
of the following provisions;

(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of THE deponent as a
witness;

(b) The deposition of a party or of any one who at the time of

taking the deposition was an officer, director, or managing agent
of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds: (1) that the
witness is dead, or (2) that the witness resides at a distance

463
 more than one hundred (100) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition, or
(3) that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment, or (4) that the party
offering the deposition has been unable to procure the
attendance of the witness by subpoena; or (5) upon application
and notice, that such exceptional circumstances exist as to make
it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in
open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party,

the adverse party may require him OR HER to introduce all of it
which is relevant to the part introduced, and any party may
introduce any other parts.

USE OF DEPOSITIONS
Depositions may be used at the trial or upon the hearing of a
motion or an interlocutory proceeding, whether in whole or in part.
They are admissible against any party who was present or represented
at the taking of the deposition or who had due notice thereof.
Deposition may be used for the following purposes:
1. For the purpose of contradicting or impeaching the testimony of
the deponent as a witness;
2. For any purpose, if the deponent is the adverse party;
3. For any purpose, where the deposition is that of a witness,
whether or not a party and the court finds that: (1) the witness is
dead; (2) the witness resides at a distance more than one hundred
(100) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by
the party offering the deposition; or (3) the witness is unable to

464
 attend or testify because of age, sickness, infirmity, or
imprisonment; or (4) the party offering the deposition has been
able to procure the attendance of the witness by subpoena; or (5)
upon application and notice, that such exceptional circumstance
exist as to make it desirable, in the interest of justice (Sec. 4, Rule
23).

Section 5.Effect of substitution of parties. — Substitution of parties

does not affect the right to use depositions previously taken; and,
when an action has been dismissed and another action involving the
same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the former action may be used in the latter as if
originally taken therefor.

Effect of Substitution of Parties

The substitution of parties does not affect the right to use the
depositions previously taken. The same rule also provides that when an
action has been dismissed and another action involving the same
subject and between the same parties or their representatives or
successors in interest, is afterwards brought, all the depositions lawfully
taken and duly filed in the former action may be used in the latter as if
originally taken.

For example, upon the death of a party and proper substitution

was instituted, or when a party to a case transfer his interest over the
subject matter of the case, the deposition previously taken shall not be
affected by the substitution of the parties, he or she be the plaintiff or
defendant.

In like manner, when an action has been dismissed and another

action has been brought involving the same subject and involving the
same parties, all depositions previously taken and duly filed in the

465
former action may be used or utilized in the new action as if originally
taken.

Section 6.Objections to admissibility. — Subject to the provisions of

section 29 of this Rule, objection may be made at the trial or hearing,
to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying.

When to object on the admissibility of deposition?

Subject to the provisions of section 29 of this Rule, objection may

be made on the following occasions:

1. at the trial or
2. hearing, to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the
evidence if the witness were then present and testifying.

Section 29.Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for

taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a

deposition because of disqualification of the officer before whom
it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to

the competency of witness or the competency, relevancy, or
materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground,
466
 of the objection is one which might have been obviated or
removed if presented at that time.

(d) As to oral examination and other particulars. — Errors and

irregularities occurring at the oral examination in the manner of
taking the deposition in the form of the questions or answers, in
the oath or affirmation, or in the conduct of the parties and errors
of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the form

of written interrogatories submitted under sections 25 and 26 of
this Rule are waived unless served in writing upon the party
propounding them within the time allowed for serving succeeding
cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in the

manner in which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections 17, 19, 20 and
26 of this Rule are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have
been, ascertained.

Section 7.Effect of taking depositions. — A party shall not be deemed

to make a person his OR HER own witness for any purpose by taking
his deposition.

A person whose deposition is taken by a party does not, by reason

of such deposition, make such person the witness of said party. For
example, the plaintiff moved or requested for the taking of a deposition

467
of Mr Aquino, under the above rule, Mr. Aquino is not deemed to be a
witness of the plaintiff.

Section 8.Effect of using depositions. — The introduction in evidence

of the deposition or any part thereof for any purpose other than that
of contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule.

“Section 4, (b) The deposition of a party or of any one who at the

time of taking the deposition was an officer, director, or managing
agent of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose.”

While the taking of the deposition of a person does not make the
person a witness of the party taking his deposition, the introduction of
the deposition or any party thereof makes the deponent the witness of
the party introducing the deposition if used for a purpose other than
that of contradicting or impeaching the deponent. The same provision,
however, does not make this rule applicable to the use by an adverse
party of a deposition mentioned in paragraph (b) of Sec. 4 of Rule 23.

Section 9.Rebutting deposition. — At the trial or hearing any party

may rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party.

Section 10. Persons before whom depositions may be taken within the
Philippines. — Within the Philippines depositions may be taken before
any judge, notary public, or the person referred to in section 14
hereof.

Section 11. Persons before whom depositions may be taken in foreign

countries. — In a foreign state or country, depositions may be taken

468
(a) on notice before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the Republic of the
Philippines, (b) before such person or officer as may be appointed by
commission or under letters rogatory; or (c) the person referred to in
section 14 hereof.

Person who may take deposition.

Secs. 11 and 14, Rule 23 of the 1997 Rules on Civil Procedure,
provides for the rule on the persons who are authorized to take
deposition, as follows, to wit:
(a)If within the Philippines:

“Sec. 10. Person before whom deposition may be taken. – Within

the Philippines, depositions may be taken before any judge,
notary public, or the person referred to in Sec. 14 hereof.”
Sec. 14. Stipulations regarding taking of depositions. – If the
parties so stipulate in writing, depositions may be taken before
any person authorized to administer oaths, at any time or place,
in accordance with these Rules, and when so taken may be used
like other depositions.”
(b) If outside the Philippines:

“Sec. 11. Persons before whom deposition may be taken in

foreign countries. – In a foreign state or country, depositions may
be taken (a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines; (b) before such person or officer as
may be appointed by commission or under letters rogatory; or (c)
the person referred to in Section 14 hereof.”
469
Section 12.Commission or letters rogatory. — A commission or letters
rogatory shall be issued only when necessary or convenient, on
application and notice, and on such terms, and with such direction as
are just and appropriate. Officers may be designated in notices or
commissions either by name or descriptive title and letters rogatory
may be addressed to the appropriate judicial authority in the foreign
country.

Letters commission or rogatory.

Sec. 12, Rule 23, provides for the rule on when a letter
commission or letter rogatory can be issued. It states that:
“Sec. 12. Commission or letters rogatory. – A commission or letter
rogatory shall be issued only when necessary or convenient, on
application and notice, and on such terms and with such direction as
are just and appropriate. Officers may be designated in notice or
commissions either by name or descriptive title and letters rogatory
may be addressed to the appropriate judicial authority in the foreign
country.”
What is a letter commission?
It is an instrument issued by a court of justice, or other competent
tribunal to authorize a person to take depositions, or do any other act
by authority of such court or tribunal.
What is a letter rogatory?
It is an instrument whereby a foreign court is informed of the
pendency of a case and the name of the foreign witness, and is
requested to cause their depositions to be taken in the due course of
law for the furtherance of justice, with an offer on the part of the court
making the request, to do the like for the others, in a similar case.

470
When can a letters commission or rogatory be issued?
A commission or letter rogatory shall be issued only when:
1. Necessary or convenient, on application and notice, and:
2. On such terms and with such direction as are just and
appropriate.
3. Officers may be designated in notice or commissions either by
name or descriptive title and
4. Letters rogatory may be addressed to the appropriate judicial
authority in the foreign country.”
Sample form
PETITION FOR ISSUANCE OF LETTER ROGATORY
COMES NOW, plaintiff, by counsel and to this Honorable Court,
respectfully alleges:
1. That for the purpose of completing plaintiff’s evidence, so that
a just and fair decision may be rendered in the instant case, it is
proper and necessary that the testimony of Juan Dela Cruz,
who is at present residing in the United States at New Jersey,
U.S.A., be taken by means of deposition upon written
interrogatories, attached herewith as Annex “A”, at the
Philippine Consulate at its offices in 42 nd Street, New York,
U.S.A. before any Philippine consular representative thereat, at
such date and time as the latter may fix.
2. That if the adverse party desires, he may serve cross-
interrogatories to be filed in court, so that the direct
interrogatories and cross-interrogatories may both be sent to
the Philippine Consulate at the above-indicated address.

471
 WHEREFORE plaintiff respectfully prays that an order issue
directing the adverse party, the defendant, to submit his
written cross-interrogatories within ten (10) days from notice,
requiring the clerk of court to issue letters rogatory directed to
the Philippine Consular representative in the Philippine
Consular Office at ___________ U.S. A. to take the examination
upon interrogatories (both direct and cross) attached herewith,
at such date and time as the consular representative may
schedule, with notice to the witness___________ to appear
and testify therein; and thereafter, to submit the record of
deposition to the Court which issued this order, with notice to
both parties.
Such other relief and remedies just and equitable under the
premises are likewise prayed for.

Sample Form
Republic of the Philippines
MUNICIPAL TRIAL COURT
6TH Judicial Region
Branch 32
Iloilo City

Mr. A, Civil Case No.

20-123
Plaintiff For: Sum of
Money

Versus-
Mr. B,
Defendant

472
 LETTERS ROGATORY
The Municipal Trial Court of Iloilo City, Branch 32 to Judge or
Tribunal having jurisdiction of Civil Cases at Canada.
WHEREAS, a certain suit is pending in the Municipal Trial Court ,
Branch 32, Iloilo City, in which Mr A is the plaintiff and Mr. B is the
defendant, and it has been suggested to us that there are witness
residing within your jurisdiction without whose testimony justice
cannot completely be done between said parties.
WE, THEREFORE, request you that in furtherance of justice you
will by proper and usual process of your courts cause such witness as
shall be named or pointed out to you by said parties or rather of them,
to appear before you or some competent person by you for that
purpose to be appointed and authorized at a precise time and place by
to be fixed by you and there to answer on their oaths and affirmations
to the several interrogatories hereunto annexed; and that you will
cause their depositions to be committed to writing and returned to us
under cover duly closed and sealed up together with these presents.
And we shall be ready and willong to do the same for you in a similar
case when required.

(Sgd) Stephen James Justalero

Branch Clerk of Court
Municipal Trial Court
Iloilo City

Distinction between commission and letters rogatory.

1. Commission is an instrument issued by a court of justice, or other
competent tribunal to authorize a person to take deposition, or
do any other act by authority of such court or tribunal; while
473
 letters rogatory is an instrument whereby a foreign court is
informed of the pendency of a case and the name of the foreign
witness, and is requested to cause their depositions to be taken in
due course of law for the furtherance of justice, with an offer on
the part of the court making the request, to do the like for the
other, in a similar case;

2. Commission is addressed to a non-judicial foreign officer who will

take the deposition; while letters of rogatory, it is addressed to a
judicial officer of a foreign country who will direct the taking of
the deposition;

3. In Commission, the rules which are applicable are those of the

requesting court; while in letters rogatory the procedure
applicable will be that of the foreign court;

4. In Commission, it is allowed if the permission of the foreign

country is given; while in letters rogatory, it is allowed if
commission was disallowed by the foreign country;

5. Lastly, in commission leave of court is not necessary; while in

letters rogatory, leave of court is necessary.

Section 13.Disqualification by interest. — No deposition shall be taken

before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of any of the parties,
or who is a relative within the same degree, or employee of such
counsel; or who is financially interested in the action.

Who are the persons disqualified to take deposition?

No deposition shall be taken before:

474
 a. A person who is a relative within the sixth degree of consanguinity
or affinity; or
b. Employee or counsel of any of the parties; or
c. A relative within the same degree, or employee of such counsel;
or
d. Person who is financially interested in the action.

Section 14.Stipulations regarding taking of depositions. — If the

parties so stipulate in writing, depositions may be taken before any
person authorized to administer oaths, at any time or place, in
accordance with these Rules and when so taken may be used like
other depositions.

Before whom taken

Within the Philippines, a deposition need not be taken before a

judge, although it may be taken before one. It may also be taken before
a notary public (Sec. 10, Rule 23, Rules of Court) or before any person
authorized to administer oaths if the parties so stipulate in writing (Sec.
14, Rule 23).

Outside the Philippines, a deposition may be taken before (a) a

secretary of an embassy or legation, consul general, consul, vice-consul,
or consular agent of the Republic of the Philippines (Sec. 11, Rule 23);
(b) such person or officer as may be appointed by commission or letters
rogatory; or (c) a person authorized to administer oaths by written
stipulation of the parties (Sec. 1, Rule 23).

No deposition shall be taken before a person who is a relative

within the sixth degree of consanguinity or affinity, or employee or
counsel of ay of the parties; or who is a relative within the same
degree, or employee of such counsel; or who is financially interested in
the action (Sec. 13, Rule 23)

475
Section 15.Deposition upon oral examination; notice; time and place.
— A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing, to every other
party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general
description sufficient to identify him OR HER or the particular class or
group to which he OR SHE belongs. On motion of any party upon
whom the notice is served, the court may for cause shown enlarge or
shorten the time.

Examination of the deponent

A party desiring to take the depositon of any person upon oral
examination shall give reasonable notice in writing to every party to the
action stating the name and place for taking the deposition and the
name and address of each person to be examined (Sec. 15, Rule 23).
After the notice is served, the court may make any order for the
protection of the parties and the deponents (Sec. 16, Rule 23).
The attendance of witnesses may be compelled by the use of
subpoenas (Sec. 1, Rule 23).
Kinds of Depositions
There are two kinds of depositions under Rule 23.
They are:
(a) Depositions upon oral examination under Sec 15 of Rule 23 and
(b) Depositions upon written interrogatories under Sec, 25 of Rule 23.
Sample form
NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION (SEC. 15, Rule
23)

476
Atty. Vicente Villa-Go
Counsel for defendant/plaintiff
SIR:
Please take notice that on February 8, 2016, the undersigned
counsel for Mr. X in Civil Case No. ______, entitled “Mr X vs. Mr. Y” RTC,
Manila, will take the deposition of Mr. Juan Dela Cruz, with address at
___________, before Notary Public XYZ at the latter’s address at
____________, upon oral examination. The oral examination will
continue from day to day at the same time and place until the oral
examination is completed.

Section 16. Orders for the protection of parties and deponents. —

After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to be
examined and for good cause shown, the court in which the action is
pending may make THE FOLLOWING order:

(a)That the deposition shall not be taken,

(b) That it may be taken only at some designated place other
than that stated in the notice,
(c)That it may be taken only on written interrogatories,
(d) That certain matters shall not be inquired into,
(e) That the scope of the examination shall be held with no
one present except the parties to the action and their officers or
counsel,
(f) That after being sealed the deposition shall be opened only by
order of the court,
(g)That secret processes, developments, or research need not be
disclosed,
(h) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes to be
opened as directed by the court.

477
 The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment,
or oppression.

Orders for the protection of parties and deponents. —

After notice is served for taking a deposition by oral examination,

upon motion seasonably made by any party or by the person to be
examined and for good cause shown,

The court in which the action is pending may make an order

1. That the deposition shall not be taken, or

2. That it may be taken only at some designated place other than
that stated in the notice, or
3. That it may be taken only on written interrogatories, or
4. That certain matters shall not be inquired into, or
5. That the scope of the examination shall be held with no one
present except the parties to the action and their officers or
counsel, or
6. That after being sealed the deposition shall be opened only by
order of the court,
7. That secret processes, developments, or research need not be
disclosed, or
8. That the parties shall simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as
directed by the court or
9. The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment,
or oppression.

Section 17.Record of examination, oath; objections. — The officer

before whom the deposition is to be taken shall put the witness on
oath and shall personally, or by some one acting under his OR HER

478
direction and in his OR HER presence, record the testimony of the
witness. The testimony shall be taken stenographically unless the
parties agree otherwise. All objections made at the time of the
examination to the qualifications of the officer taking the deposition,
or to the manner of talking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the proceedings,
shall be noted by the officer upon the deposition. Evidence objected
to shall be taken subject to the objections. In lieu of participating in
the oral examination, parties served with notice of taking a deposition
may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.

The officer before whom the deposition is taken has no authority

to rule on the objections interposed during the course of the deposition
although any objections shall be noted by the officer upon the
deposition. Any evidence that is objected to shall be taken but subject
to the objection.

Certain guidelines for oral deposition provided for under Sec. 17

of Rule 23 must be observed. These are:

1. The officer before whom the depositon is taken shall put the
witness under oath;
2. The testimony of the witness or deponent must be recorded
and shall be taken stenographically unless the party agree
otherwise;
3. All objections at the time of the examination shall be noted;
4. Evidence objected to shall be taken but subject to the
objections.

In lieu of participating in the oral deposition, parties served with

notice of taking a deposition may transmit written interrogatories to
the officers, who shall propound them to the witness and record the
answers verbatim.
479
Section 18.Motion to terminate or limit examination. — At any time
during the taking of the deposition, on motion or petition of any party
or of the deponent, and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the
action is pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the deposition, as
provided in section 16 of this Rule. If the order made terminates the
examination, it shall be resumed thereafter only upon the order of the
court in which the action is pending. Upon demand of the objecting
party or deponent, the taking of the deposition shall be suspended for
the time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or upon
the witness the requirement to pay such costs or expenses as the
court may deem reasonable.

Motion to terminate or limit examination. —

At any time during the taking of the deposition, on motion or

petition of any party or of the deponent, and upon a showing that the
examination is

(1) being conducted in bad faith or

(2) in such manner as unreasonably to annoy,

(3) embarrass, or

(4)oppress the deponent or party, the court in which the action is

pending or the Regional Trial Court of the place where the deposition is
being taken may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and

480
manner of the taking of the deposition, as provided in section 16 of this
Rule. If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is
pending. Upon demand of the objecting party or deponent, the taking
of the deposition shall be suspended for the time necessary to make a
notice for an order. In granting or refusing such order, the court may
impose upon either party or upon the witness the requirement to pay
such costs or expenses as the court may deem reasonable.

Sample form
MOTION TO TERMINATE TAKING OF DEPOSITION
COMES NOW, plaintiff, by counsel and to this Honorable Court,
most respectfully alleges:
1. That the deposition of the Juan Dela Cruz is now being taken
before a Notary Public Atty. ____________ at
_________________;
2. That during the taking of the deposition counsel for the defendant
profounded questions which are not only immaterial, baseless but
tending to harass and merely to disrepute said deponent which
has no relation to the facts in issue to the case, and pursuant to
Sec. 18 of Rule 23, deposition may be ordered terminated by the
Honorable Court.

WHEREFORE, plaintiff respectfully prays that the taking of the

deposition of _________________ be terminated based on the
above reasons.

Section 19.Submission to witness; changes; signing. — When the

testimony is fully transcribed, the deposition shall be submitted to the
witness for examination and shall be read to or by him OR HER, unless
such examination and reading are waived by the witness and by the

481
parties. Any changes in form or substance which the witness desires
to make shall be entered upon the deposition by the officer with a
statement of the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or cannot be found or
refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver or of
the illness or absence of the witness or the fact of the refusal to sign
together with the reason be given therefor, if any, and the deposition
may then be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the
deposition in whole or in part.

When the testimony is fully transcribed, the deposition shall be

submitted to the witness for examination and shall be read to or by
him, unless such examination and reading are waived by the witness
and by the parties. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer
with a statement of the reasons given by the witness for making them.
The deposition shall then be signed by the witness, unless the parties
by stipulation waive the signing or the witness is ill or cannot be found
or refuses to sign.

If the deposition is not signed by the witness, the officer shall sign
it and state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign together with
the reason be given therefor, if any, and the deposition may then be
used as fully as though signed, unless on a motion to suppress under
section 29 (f) of this Rule, the court holds that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part.

482
Section 20.Certification, and filing by officer. — The officer shall certify
on the deposition that the witness was duly sworn to by him OR HER
and that the deposition is a true record of the testimony given by the
witness. He OR SHE shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked "Deposition
of (here insert the name of witness)" and shall promptly file it with
the court in which the action is pending or send it by registered mail
to the clerk thereof for filing.

The officer shall certify on the deposition that the witness was
duly sworn to by him and that the deposition is a true record of the
testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and
marked "Deposition of (here insert the name of witness)" and shall
promptly file it with the court in which the action is pending or send it
by registered mail to the clerk thereof for filing.

Section 21.Notice of filing. — The officer taking the deposition shall

give prompt notice of its filing to all the parties.

Section 22.Furnishing copies. — Upon payment of reasonable charges

therefor, the officer shall furnish a copy of the deposition to any party
or to the deponent.

Section 23.Failure to attend of party giving notice. — If the party

giving the notice of the taking of a deposition fails to attend and
proceed therewith and another attends in person or by counsel
pursuant to the notice, the court may order the party giving the notice
to pay such other party the amount of the reasonable expenses
incurred by him OR HER and his OR HER counsel in so attending,
including reasonable attorney's fees.

What is the effect if the party giving notice fails to attend the taking of
depositions?

483
 If the party giving the notice of the taking of a deposition fails to
attend and proceed therewith and another attends in person or by
counsel pursuant to the notice, the court may

1. Order the party giving the notice to pay such other party the
amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorney's fees.

Section 24.Failure of party giving notice to serve subpoena. — If the

party giving the notice of the taking of a deposition of a witness fails
to serve a subpoena upon him and the witness because of such failure
does not attend, and if another party attends in person or by counsel
because he OR SHE expects the deposition of that witness to be taken,
the court may order the party giving the notice to pay to such other
party the amount of the reasonable expenses incurred by him OR HER
and his OR HER counsel in so attending, including reasonable
attorney's fees.

Section 25.Deposition upon written interrogatories; service of notice

and of interrogatories. — A party desiring to take the deposition of
any person upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of the person
who is to answer them and the name or descriptive title and address
of the officer before whom the deposition is to be taken. Within ten
(10) CALENDAR days thereafter, a party so served may serve cross-
interrogatories upon the party proposing to take the deposition.
Within five (5) CALENDAR days thereafter, the latter may serve re-
direct interrogatories upon a party who has served cross-
interrogatories. Within three (3) CALENDAR days after being served
with re-direct interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the deposition.

Deposition upon written interrogatories

484
 A deposition need not be conducted through oral examination. It
may be conducted through written interrogatories under Sec. 1, Rule
23.

A party desiring to take the deposition of any person upon written

interrogatories shall serve them upon every other party with a notice
stating the name and address of the person who is to answer them and
the name or descriptive title and address of the officer before whom
the deposition is to be taken.

Within ten (10) days thereafter, a party so served may serve cross-
interrogatories upon the party proposing to take the deposition. Within
five (5) days thereafter, the latter may serve re-direct interrogatories
upon a party who has served cross-interrogatories. Within three (3)
days after being served with re-direct interrogatories, a party may serve
recross-interrogatories upon the party proposing to take the
deposition.

Sample form

NOTICE TO TAKE DEPOSITION UPON WRITTEN INTERROGATORIES

Atty. Annika Kim C. Justalero

Counsel for defendant/plaintiff
Iloilo City

Maam:

Please take notice that on February 8, 2019, the undersigned

counsel for Mr X in Civil Case No. 19-1234, entitled “Mr X vs. Mrs Y,
RTC, Iloilo City, will take the deposition of Mr. Juan Cruz, with address
at Jaro, Iloilo City, before Notary Public Atty Roel Pueblo at the latter’s
address at Molo, Iloilo City, at 10:00 in the morning, upon written
interrogatories. The written interrogatories will continue from day to

485
day at the same time and place until the written interrogatories are
completed.

Atty. Tony Ramos

Counsel for the Plaintiff/Defendant

Section 26.Officers to take responses and prepare record. — A copy of

the notice and copies of all interrogatories served shall be delivered
by the party taking the deposition to the officer designated in the
notice, who shall proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the testimony of the
witness in response to the interrogatories and to prepare, certify, and
file or mail the deposition, attaching thereto the copy of the notice
and the interrogatories received by him OR HER.

A copy of the notice and copies of all interrogatories served shall

be delivered by the party taking the deposition to the officer designated
in the notice, who shall proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the testimony of the witness
in response to the interrogatories and to prepare, certify, and file or
mail the deposition, attaching thereto the copy of the notice and the
interrogatories received by him.

Section 27.Notice of filing and furnishing copies. — When a deposition

upon interrogatories is filed, the officer taking it shall promptly give
notice thereof to all the parties, and may furnish copies to them or to
the deponent upon payment of reasonable charges therefor.

Section 28.Order for the protection of parties and deponents. — After

the service of the interrogatories and prior to the taking of the
testimony of the deponent, the court in which the action is pending,
on motion promptly made by a party or a deponent, and for good
cause shown, may make any order specified in sections 15, 16 and 18

486
of this Rule which is appropriate and just or an order that the
deposition shall not be taken before the officer designated in the
notice or that it shall not be taken except upon oral examination.

Section 29.Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice for

taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.

(b) As to disqualification of officer. — Objection to taking a

deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence.

(c) As to competency or relevancy of evidence. — Objections to

the competency of witness or the competency, relevancy, or
materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground,
of the objection is one which might have been obviated or
removed if presented at that time.

(d) As to oral examination and other particulars. — Errors and

irregularities occurring at the oral examination in the manner of
taking the deposition in the form of the questions or answers, in
the oath or affirmation, or in the conduct of the parties and
errors of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.

(e) As to form of written interrogatories. — Objections to the

form of written interrogatories submitted under sections 25 and

487
 26 of this Rule are waived unless served in writing upon the
party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within three (3)
days after service of the last interrogatories authorized.

(f) As to manner of preparation. — Errors and irregularities in

the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.

BAR 1997
In an admiralty case filed by A against Y Shipping Lines (whose
principal offices are in Manila) in the Regional Trial Court, Davao City,
the court issued a subpoena duces tecum directing Y, the president of
the shipping company, to appear and testify at the trial and to bring
with him several documents.
(a)On what valid ground can Y refuse to comply with the
subpoena duces tecum?
(b) How can A take the testimony of Y and present the
document as Exhibits other than through the subpoena from
the Regional Trial court?

Suggested answer
(a)Y may refuse to comply with the subpoena by invoking the
distance between his residence and the place where he is to
testify. A witness cannot be compelled or cited in contempt for
failure to obey a subpoena if he resides more than one hundred

488
 (100) kilometers from the place where he is to testify by the
ordinary course of travel (Sec. 10, Rule 21, Rules of Court).

(b) If Y validly refuses to comply with the subpoena, his

testimony may be taken by way of deposition through oral
examination or written interrogatories under Sec. 1 of Rule 23 of
the Rules of Court. As to the documents, A may file a motion for
the production and inspection of documents under Sec. 1 of Rule
27 of the Rules of Court.

BAR 1982
Pedro filed a civil case in the Regional Trial Court of Manila. How
can he procure the testimony of a witness: (a) Who lives in Davao City?;
(b) Who lives in New York? And (c) Who lives in Manila?

Suggested answer
Since the witness lives more than one hundred (100) kilometers
from Manila, the testimony of the witness may be procured by a
deposition under Sec. 1 of Rule 23. (b) The answer is the same as in
letter “a.” (c) The witness who lives in Manila may have his testimony
procured by a mere subpoena under Sec. 1 of Rule 21.

489
 RULE 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Section 1.Depositions before action; petition. — A person who desires

to perpetuate his own testimony or that of another person regarding
any matter that may be cognizable in any court of the Philippines may
file a verified petition in the court of the place of the residence of any
expected adverse party.

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24)

This type of deposition is availed of when a person desires to
perpetuate his own testimony or that of another person regarding any
matter that may be cognizable in any court of the Philippines.
The perpetuation of a testimony is done by filing a verified
petition in the place of the residence of any expected adverse party.
Concept

490
 1. A deposition before action and a deposition pending appeal are
referred to as “perpetuation of testimony” or perpetuam rei
memoriam because their objective is to perpetuate the testimony
of a witness for use in the future.

2. A deposition under rule 24 is also used for the same purposes as

to those embodied in Secs. 4 and 5 of Rule 23.

A petition may be filed by a person who wants to perpetuate his

own testimony. It may also be filed by a person who wants to
perpetuate the testimony of another person. The deposition may be on
any matter that may be cognizable in any court of the Philippines (Sec.
1, Rule 24, Rules of Court)

Section 2.Contents of petition. — The petition shall be entitled in the

name of the petitioner and shall show: (a) that the petitioner expects
to be a party to an action in a court of the Philippines but is presently
unable to bring it or cause it to be brought; (b) the subject matter of
the expected action and his OR HER interest therein; (c) the facts
which he OR SHE desires to establish by the proposed testimony and
his OR HER reasons for desiring to perpetuate it; (d) the names or a
description of the persons he OR SHE expects will be adverse parties
and their addresses so far as known; and (e) the names and addresses
of the persons to be examined and the substance of the testimony
which he OR SHE expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their
testimony.

Form of Petition

491
 The petition shall be verified and filed in the court of the place of
the residence of any expected adverse party. The petition shall contain
the matter set forth in Sec. 2 of Rule 24.
What are the contents of the Petition for Taking Deposition before
Action:
The petition for taking of a deposition before action shall be
entitled in the name of the petitioner and shall show the following:
1. That the petitioner expects to be a party to an action in court of
the Philippines but is presently unable to bring it or cause it to be
brought;
2. The subject matter of the expected action and his interest therein;
3. The fact which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it;
4. The names or a description of the persons he expects will be the
adverse parties and their addresses so far as known; and
5. The names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each,
and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition
for the purpose of perpetuating their testimony.

Sample form
VERIFIED PETITION TO PERPETUATE TESTIMONY BEFORE ACTION (Sec.
2, Rule 24)
PETITION TO PERPETUATE TESTIMONY
COMES NOW, petitioner, through the undersigned counsel, and
unto this Honorable Court, respectfully avers:

492
 1. Petitioner is of legal age and residing at Glen E, Savannah
Subdivision, Oton, Iloilo;
2. Petitioner expects to be a party to an action in court in the
Philippines but he is presently unable to bring it.
3. The subject matter of the expected action is for the recovery of
possession of property and damages, which Mr. Y with address at
Brgy. San Antonio, Molo, Iloilo City, entrusted TCT No. 4586,
issued by the Register of Deeds of Manila which petitioner
entrusted to Mr. Y which was not returned by the latter to the
petitioner and he is in possession of the said property. Mr Y is
expected to be the adverse party.
4. The person who was present during the transaction was Juan Dela
Cruz with address at Brgy. San Roque, Jaro, Iloilo City, and who
knew the surrounding facts thereof.
5. Petitioner is very sick, as he suffered a stroke, and his physical
mobility has greatly been affected.
6. The interest of justice would be served by perpetuating the
testimonies of herein petitioner and of Juan Dela Cruz, as
evidence in the expected action against Mr. Y for recovery of
possession and damages.

WHEREFORE, petitioner respectfully prays that the court issue an

order authorizing him to take the deposition of herein petitioner and
that of Juan Dela Cruz, before such authorized person and at such time
and place, as the court may require.

Section 3.Notice and service. — The petitioner shall serve a notice

upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named therein, for the
order described in the petition. At least twenty (20) CALENDAR days
before the date of the hearing, the court shall cause notice thereof to

493
be served on the parties and prospective deponents in the manner
provided for service of summons.

Notice and Service

1. The petitioner shall serve a notice upon each person named in
the petition as an expected adverse party. The notice shall
state that the petitioner will apply to the court for the order
described in the petition at a time and place named therein.

2. At least twenty (20) days before the date of the hearing, the
court shall cause notice thereof to be served on the parties and
prospective deponents in the manner provided for service of
summons.

Section 4.Order and examination. — If the court is satisfied that the

perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the persons
whose deposition may be taken and specifying the subject matter of
the examination and whether the depositions shall be taken upon
oral examination or written interrogatories. The depositions may be
taken in accordance with Rule 23 before the hearing.

Order and Examination

If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order designating
or describing the persons whose depositions may be taken and
specifying the subject matter of the examination and whether the
depositions shall be taken upon oral examination or written
interrogatories.

Section 5.Reference to court. — For the purpose of applying Rule 23 to

depositions for perpetuating testimony, each reference therein to the

494
court in which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed.

Section 6.Use of deposition. — If a deposition to perpetuate testimony

is taken under this Rule, or if, although not so taken, it would be
admissible in evidence, it may be used in any action involving the
same subject matter sub-sequently brought in accordance with the
provisions of sections 4 and 5 of Rule 23.

Section 7.Depositions pending appeal. — If an appeal has been taken

from a judgment of a court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their testimony for in
the event of further proceedings in the said court. In such case the
party who desires to perpetuate the testimony may make a motion in
the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion
shall state (a) the names and addresses of the persons to be examined
and the substance of the testimony which he OR SHE expects to elicit
from each, and (b) the reason for perpetuating their testimony. If the
court finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the
deposition to be taken, and thereupon the depositions may be taken
and used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending actions.

Depositions pending appeal

If an appeal has been taken from a judgment of a court, including

the Court of Appeals in proper cases, or before the taking of an appeal
if the time therefor has not expired, the court in which the judgment
was rendered may allow the taking of depositions of witnesses to

495
perpetuate their testimony for in the event of further proceedings in
the said court.

In such case the party who desires to perpetuate the testimony

may make a motion in the said court for leave to take the depositions,
upon the same notice and service thereof as if the action was pending
therein.

The motion shall state (a) the names and addresses of the persons
to be examined and the substance of the testimony which he expects to
elicit from each, and (b) the reason for perpetuating their testimony.

If the court finds that the perpetuation of the testimony is proper

to avoid a failure or delay of justice, it may make an order allowing the
deposition to be taken, and thereupon the depositions may be taken
and used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending actions.

RULE 25

INTERROGATORIES TO PARTIES

Section 1.Interrogatories to parties; service thereof. — UPON EX

PARTE MOTION, any party desiring to elicit material and relevant facts
from any adverse parties shall file and serve upon the latter written
interrogatories to be answered by the party served or, if the party
served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf.

INTERROGATORIES TO PARTIES (RULE 25)

Interrogatories, also known as requests for further information,
are a formal set of written questions propounded by one litigant and
required to be answered by an adversary in order to clarify matters of

496
fact and help to determine in advance what facts will be presented at
any trial in the case.
Written interrogatories are a useful discovery tool for plaintiffs in
all types of tort cases. Written responses from a defendant can help
narrow down the issues in a case. Unlike oral testimony at a deposition,
written statements are much harded to wiggle out of later
interrogatories can be very effective at locking a defendant into a
position on key points.
Concept and Purpose
This type of discovery is availed of by any party desiring to elicit
material and relevant facts from any adverse party (Sec. 1, Rule 25).
The scope of the interrogatories shall be the matters mentioned in Sec.
2 of Rule 23 and the answers may be used for the same purposes
provided in Sec. 4 of Rule 23.

“Section 2.Scope of examination. — Unless otherwise ordered by the

court as provided by section 16 or 18 of this Rule, the deponent may be
examined regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or defense
of any other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other
tangible things and the identity and location of persons having
knowledge of relevant facts.”

“Section 4.Use of depositions. — At the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any one
of the following provisions;

497
 (a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness;

(b) The deposition of a party or of any one who at the time of

taking the deposition was an officer, director, or managing agent
of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds: (1) that the
witness is dead, or (2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition, or (3)
that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment, or (4) that the party offering
the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that
such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to
allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party,

the adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any
other parts.

Existing rules consider this mode of discovery as important

because within one day from receipt of the complaint, the rule
mandates not only the preparation of the summons but also the
issuance of an order requiring the parties to avail of interrogatories to

498
parties under Rule 25 and request for admission by adverse party under
Rule 26. The parties however, may use at their discretion, depositions
under Rule 23 of other measures under Rule 27 and 28 within five (5)
days form the filing of the answer (A.M. No. 03-1-09-SC)”
Distinguished from bill of particulars
A bill of particulars is directed to a pleading and is designed to
seek for a more definite statement or for particulars of any matter not
averred with sufficient definitemess in a plesding. (Sec. 1, Rule 12, Rules
of Court). Interrogatories to parties are not directed against a particular
pleading. Instead, they seek the disclosure of all material and relevant
facts from a party.
Distinguish from written interrogatories in a deposition
Written interrogatories in a deposition are not served upon the
adverse party directly. They are instead delivered to the officer
designated in the notice (Sec. 26, Rule 23, Rules of Court). The service
of written interrogatories is a mode of deposition separate and distinct
from interrogatories to parties (Sec. 1, Rule 23). Interrogatories to
parties are served directly upon the adverse party.
How Taken
1. The party who wants to avail of this mode of discovery shall file
and serve upon any adverse party written interrogatories (Sec.
1, Rule 25). A party not served with written interrogatories may
not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal unless
allowed by the court for good cause shown and to prevent a
failure of justice Sec. 6, Rule 25).
2. The party served shall answer the written interrogatories. If the
party served is a public or a private corporation, or a

499
 partnership or an association, the one who shall answer shall
be any officer thereof competent to testify in its behalf.

3. The interrogatories shall be answered fully in writing and shall

be signed and sworn to by the person making them. The party
upon whom the interrogatories have been served shall file and
serve a copy of the answers on the party submitting the
interrogatories within fifteen (15) days after service thereof,
unless the court, on motion and for good cause shown, extends
or shortens the time. (Sec. 2, Rule 25)

4. Objections to interrogatories may be presented to the court

within ten (10) days after service thereof, with notice as in the
case of motion. Answer to the interrogatories shall be deferred
until the objections are resolved, which shall be at the earliest
practicable time.

Section 2.Answer to interrogatories. — The interrogatories shall be

answered fully in writing and shall be signed and sworn to by the
person making them. The party upon whom the interrogatories have
been served shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) CALENDAR days
after service thereof unless the court on motion and for good cause
shown, extends or shortens the time.

Answer to Interrogatories

The interrogatories shall be answered fully in writing and shall be

signed and sworn to by the person making them. The party upon whom
the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15)

500
days after service thereof unless the court on motion and for good
cause shown, extends or shortens the time.

Section 3.Objections to interrogatories. — Objections to any

interrogatories may be presented to the court within ten (10)
CALENDAR days after service thereof, with notice as in case of a
motion; and answers shall be deferred until the objections are
resolved, which shall be at as early a time as is practicable.

Objections to interrogatories

The party against whom it is directed may make objections to any

interrogatories may be presented to the court within ten (10) days after
service thereof, with notice as in case of a motion; and answers shall be
deferred until the objections are resolved, which shall be at as early a
time as is practicable.

Section 4.Number of interrogatories. — No party may, without leave

of court, serve more than one set of interrogatories to be answered
by the same party.

Number of Interrogatories

No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party.

Section 5.Scope and use of interrogatories. — Interrogatories may

relate to any matters that can be inquired into under section 2 of Rule
23, and the answers may be used for the same purposes provided in
section 4 of the same Rule.

Section 6.Effect of failure to serve written interrogatories. — Unless

thereafter allowed by the court for good cause shown and to prevent
a failure of justice, a party not served with written interrogatories

501
may not be compelled by the adverse party to give testimony in open
court, or to give a deposition pending appeal.

A party not served with written interrogatories may not be

compelled by the adverse party to give testimony in open court, or to
give a deposition pending appeal, unless allowed by the court or to
prevent a failure of justice.

Remedy in case of denial of written interrogatories

The Trial Court’s order denying the written interrogatories is

interlocutory in nature. And the extraordinary remedy of writ of
certiorari is generally not an available remedy to challenge an
interlocutory order of trial court, the proper remedy in such a case is
appeal from the adverse judgment where incorporated in said appeal
are the grounds for assailing the interlocutory order. Nonetheless, this
by no means is an absolute rule. This Court finds that order disallowing
petiitoner’s written interrogatories are patently erroneous, hence, the
resort to certorati is warranted (Ong v. Mazon, G.R. No. 145542, June 4,
2004).

Sample Form (Vehicular Accident)

1. If you contend that the personal injuries of plaintiff was not caused
by the collision with your vehicle, state with particularitythe facts upon
which you baseyour contention.

2. Please state the name and address of your employer, your position
and duties, and your wages at the time of the vehicular accident and at
the present time.

3. Please state in detail your itinerary on the date of the ccident,

inclusing each place at which you were resent, your length of stay at

502
each such place, and a detailed account of whom you saw and what
you did you at each such place.

4. Please identify all persons who investigated the cause and

circumstances of this personal injury auto incident for you.

5. Please give a concise statement of facts as to how you contend the

car accident took place.

6. Please identify all expert witnesses who will be called at the trial of
this case, the area of expertise of each, and a summary of the expected
testimony of each.

RULE 26

ADMISSION BY ADVERSE PARTY

Section 1.Request for admission. — At any time after issues have been
joined, a party may file and serve upon any other party a written
request for the admission by the latter of the genuineness of any
material and relevant document described in and exhibited with the
request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with
the request unless copy has already been furnished.

503
ADMISSION BY ADVERSE PARTY (RULE 26)
Purpose of admission by adverse party
The purpose of this mode of discovery is to allow party to request
the adverse party in writing to admit certain material and relevant
matters which most likely will not be disputed during the trial. To avoid
unnecessary inconvenience to the parties in going through to rigors of
proof, before the trial, a party may request the other to:
1. Admit the genuineness of any material and relevant document
described in and exhibited with the request; or

2. Admit the truth of any material and relevant matter of fact set
forth in the request.
Concept and when request is made
1. This mode of discovery is made at any time after the issues
have been joined and is availed of by filing and serving upon
any other party a written request for admission of the
genuineness of any material and relevant document described
in and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the request
(Sec. 1, Rule 26).

2. The party to whom the request is directed should, within

fifteen (15) days from service of the request, file and serve
upon the requesting party a sworn statement either denying
specifically the matters of which the admission is requested or
setting forth in detail the reasons why he cannot truthfully
either to admit or deny those matters. Failure to file and serve
the sworn statement shall mean an implied admission of each
of the matters of which an admission is requested. The party

504
 requested may however file with the court an objection to the
request within fifteen (15) days from service of the request.
Until the objections are resolved, compliance by the party
requested of the sworn statement required of him shall be
deferred (Sec. 2, Rule 26)

What is an admission?
An admission is any statement of fact made by a party against his
interest or unfavorable to the conclusion for which he contends or is
inconsistent with the facts alleged by him.
What are the requirements in order that admission be admissible?
To be admissible, an admission must:
a. Involve matters of fact, and not of law;
b. Be categorical and definite;
c. Be knowingly and voluntarily made; and
d. Be adverse to the admitter’s interest, otherwise it would be
self-serving and inadmissible.

Section 2.Implied admission. — Each of the matters of which an

admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than fifteen
(15) CALENDAR days after service thereof, or within such further time
as the court may allow on motion, the party to whom the request is
directed files and serves upon the party requesting the admission a
sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he
OR SHE cannot truthfully either admit or deny those matters.

Objections to any request for admission shall be submitted to the

court by the party requested within the period for and prior to the

505
filing of his OR HER sworn statement as contemplated in the
preceding paragraph and his OR HER compliance therewith shall be
deferred until such objections are resolved, which resolution shall be
made as early as practicable.

Effect of failure to file and serve a sworn statement of denial

It is advisable for the party to whom the written request is

directed to file and serve upon the party requesting the admission a
sworn statement either (a) denying specifically the matters of which an
admission is requested or (b) setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters.

Each of the matters of which an admission is requested shall be

deemed admitted unless, within a period designated in the request,
which shall not be less than fifteen (15) days after service thereof, or
within such further time as the court may allow on motion, the party to
whom the request is directed files and serves upon the party requesting
the admission a sworn statement.

Implied admission
Sec. 2, Rule 26 provides for the rule on the implied admission by
adverse party of the genuineness of any document.
What are the actions that can be made by the party a written request
for admission is served?
Each of the matter of which an admission is requested shall be
deemed admitted unless, within a period designated in the request, the
party served will:
1. File and serve upon the party requesting the admission a sworn
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why

506
 he cannot truthfully either admit or deny those matters which
shall not be less than fifteen (15) days after service thereof; or

2. Within such further time as the court may allow on motion.

“IMPLIED ADMISSION RULE”

Each matter must be denied specifically under oath setting forth
in detail the reason why he cannot truthfully admit or deny. The silence
of the defendant on the plaintiff’s request for admission amounts to an
implied acceptance of the facts set forth therein with the effect that
plaintiff’s claim stood undisputed. (Manzano vs. Despabiladeras, G.R.
No. 148786, December 16, 2004).
Remedy of the persons making an Implied Admission
A party making an implied admission can file the court a Motion
to be Relieved of Implied Admission.

Deferment of compliance

To avoid the implied admission, the party requested may have the
compliance of the filing and service of the sworn statement deferred.
This deferment may be effected by the filing with the court objections
to the request for admission. Compliance shall be deferred until such
objections are resolved by the court.

Section 3.Effect of admission. — Any admission made by a party

pursuant to such request is for the purpose of the pending action only
and shall not constitute an admission by him OR HER for any other
purpose nor may the same be used against him in any other
proceeding.

Effect of admission.

507
 Sec. 3, Rule 26 provides for the rule on the effect of admission by
adverse party.
What are the effects of the admission?
Any admission made by a party pursuant to such request shall
have the following effect:
a. It is only for the purpose of the pending action;
b. It shall not constitute an admission by him for any other purpose;
c. Nor said admission be used against him in any other proceedings.

Section 4.Withdrawal. — The court may allow the party making an

admission under the Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just.

Withdrawal of admission

Admissions made under this mode of discovery, whether express

or implied are not final and irrevocable. This court may allow the party
making the admission to withdraw or amend the admission upon such
terms as may be just. To effect the withdrawal, the admitting party
should file a motion to be relieved of the effects of his admission.

Section 5.Effect of failure to file and serve request for admission. —

Unless otherwise allowed by the court for good cause shown and to
prevent a failure of justice a party who fails to file and serve a request
for admission on the adverse party of material and relevant facts at
issue which are, or ought to be, within the personal knowledge of the
latter, shall not be permitted to present evidence on such facts.

Effect of failure to file and serve request for admission

Sec, 5, rule 26, provides for the effect of failure to file and serve
request for admission.

508
What are the effects in case of failure to file and serve request for
admission?
Unless otherwise allowed by the court for good cause shown and
to prevent a failure of justice, a party who fails to file and serve a
request for admission on the adverse party of material and relevant
facts at issue which are, or ought to be, within the personal knowledge
of the latter, shall not be permitted to present evidence on such facts.
Sample form
REQUEST FOR ADMISSION OF DOCUMENTS OR MATERIAL FACTS (RULE
26)
RE: REQUEST FOR ADMISSION
Mr. Y
Defendant
Brgy. San Roque, Jaro, Iloilo City

Pursuant to Sections 1 and 2 of Rule 26 of the Rules of Court,

request is hereby made upon you, within fifteen (15) days from your
receipt hereof, to admit the due execution and genuineness of the
documents, herein listed below, and the truth of the facts below
enumerated, as follows:
The due execution and authenticity of the following documents,
namely:
(a)Transfer Certificate of Title No. 4568 issued by The Register of
Deeds of Iloilo City;
(b) Deed of Sale
(c)Acknowledgement Receipt.

509
 RULE 27

PRODUCTION AND INSPECTION OF DOCUMENTS OR THINGS

Section 1.Motion for production or inspection; order. — Upon motion

of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the
action and which are in his OR HER possession, custody or control, or
(b) order any party to permit entry upon designated land or other
property in his OR HER possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. The order shall

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specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and
conditions as are just.

PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (RULE 27)

What are the two (2) motions available under Rule 27?
1. Motion for production and inspection of documents and things;
and
2. Motion to allow entry upon a designated place for purposes of
inspection, measuring, and surveying of property.
Purpose
The purpose of this mode of discovery is to allow a party to seek
an order from the court in which the action is pending to:

1. Order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control, or

2. Order any party to permit entry upon designated land or other

property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property
or any designated relevant object or operation thereon. The order
shall specify the time, place and manner of making the inspection
and taking copies and photographs, and may prescribe such terms
and conditions as are just.

Application and motion

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 1. A party may file a motion for the production or inspection of
documents and things. If the movant shows good cause for the
motion, the court in which the action is pending may, under such
terms as are just:

(a) Order any party to produce and permit the inspection and
copying or photographing, by or on behalf of the moving party, of
any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his OR HER possession, custody or
control, or

(b) Order any party to permit entry upon designated land or other
property in his OR HER possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property
or any designated relevant object or operation thereon. The order
shall specify the time, place and manner of making the inspection
and taking copies and photographs, and may prescribe such terms
and conditions as are just.

2. The provision applies only to a pending action and the documents

or things subject of the motion must be only those within the
possession, custody or control of a party. It is also required that
the subject matter of the motion is not privileged. If the motion is
granted, the order of the court shall be directed to a party to the
pending action. (Sec. 1, Rule 27)

Limitations on the Remedy of Production and Inspection of Documents

and Things.

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 A motion for production and inspection of documents should not
demand a roving inspection of a promiscuous mass of documents. The
inspection should be limited to those documents designated with
sufficient particularity in the motion, such that the adverse party can
easily identity the documents he is required to produce. Rule 27
permits “fishing for evidence.” The lament against fishing expedition no
longer precludes a party from prying into the facts underlying his
opponent’s case. Mutual knowledge of all relevant facts gathered by
both parties is essential to proper litigation. To that end, either party
may compel the other disclose whatever facts he has in his possession.
However, fishing for evidence is allowed under the rules is not without
limitations (SolidBank Corporation, now known as the Metropolitan
Bank and Trust Company vs. Gateway Electronics Corporation, et. al.,
G.R. No. 164806, April 30, 2008).
Documents, papers, objects, accounts, letters, photographs, objects
and other tangible things which are privileged in character and cannot
be the subject of Rule 27.
1. Privileged communication between husband and wife (Sec. 24 [a],
Rjule 130);
2. Privilieged communication between attorney and client (Sec. 24
[b], Rule 130);
3. Privileged communication between physician and patient (Sec. 24
[c], Rule 130);
4. Privileged communication between priest and penitent (Sec. 24
[d], Rule 130);
5. Privileged communication between public officers and public
interest (Sec. 24 [e], Rule 130);
6. Editors may not be compelled to disclose source of published
news;

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 7. Voters may not be compelled to disclose for whom they voted;
8. Trade secrets;
9. Information contained in tax census returns;
10. Bank deposits.
Distinctions between Production and Inspection of documents and
things under Rule 27 and SubpoenaDuces Tecum under Rule 21.
a. In production and inspection of documents and things under Rule
27, it is a mode of discovery; while subpoena duces tecum under
Rule 21 is a writ or process of compelling production of evidence;

b. In production and inspection of documents and things under Rule

27, it is directed to a party litigants; whereas subpoena duces
tecum under Rule 21, it is directed against any person which
includes litigants;

c. In production and inspection of documents and things under Rule

27, it can be availed of my motion; whereas in subpoena duces
tecum under Rule 21, it is by means of a request which is issued
ex-parte.

Sample form
MOTION FOR PRODUCTION AND INSPECTION
COMES NOW, plaintiff, by counsel and to this Honorable Court
respectfully alleges:
1. Plaintiff has filed an action for Recovery of Possession and
Damages against defendant;
2. Defendant has entrusted the Title to the subject lot and occupied
the said property and despite demand to turn over the possession
of the said lot he refused and continuously refusing the same

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 which is evidenced by the written agreement between them
which material to the cause of action of the plaintiff.
3. Plaintiff needs such documents to prove its claims, which are in
the custody and control of the defendant;
4. The records and documents mentioned are not privileged or
confidential.

WHEREFORE, plaintiff prays that an order be issued, authorizing

available to them all records pertaining the subject lots and allowing
them to photograph said documents deem material and relevant to the
issues in the pending action.

RULE 28

PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Section 1.When examination may be ordered. — In an action in which

the mental or physical condition of a party is in controversy, the court
in which the action is pending may in its discretion order him OR HER
to submit to a physical or mental examination by a physician.

PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 28)

Proceeding in which Available
This mode of discovery is available in an action in which the
mental or physical condition of a party is in controversy. Here the court
in its discretion, may order the party to submit to a physical or mental
examination by a physician. (Sec.1, Rule 28)
Example:
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 1. An action for annulment of a contract where the ground relied
upon is insanity;
2. A petition for guardianship of a person alleged to be insane;
3. An action to recover damages for personal injury where the
issue is the extent of the injuries of the plaintiff.

Section 2. Order for examination. — The order for examination may

be made only on motion for good cause shown and upon notice to the
party to be examined and to all other parties, and shall specify the
time, place, manner, conditions and scope of the examination and the
person or persons by whom it is to be made.

Procedure
1. Motion must be filed for the physical and mental examination of a
party. The motion must show good cause for the examination.
The other party must be notified of the motion aside from the
party sought to be examined. The motion shall specify the time,
place, manner, conditions and scope of the examination and the
person or persons by whom it is made. (Sec. 2, Rule 28)

2. The party examined and the party causing the examination are
entitled upon request, to be given a copy of a detained written
report of the findings of the examining physician. If the party
examined refuses to deliver the report, the court may make an
order requiring delivery on such terms as are just. If it is the
physician who fails or refuses to make a report, the court may
exclude his testimony if offered at the trial (Sec. 3, Rule 28)

Section 3.Report of findings. — If requested by the party examined,

the party causing the examination to be made shall deliver to him OR
HER a copy of a detailed written report of the examining physician
setting out his findings and conclusions. After such request and

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delivery, the party causing the examination to be made shall be
entitled upon request to receive from the party examined a like
report of any examination, previously or thereafter made, of the same
mental or physical condition. If the party examined refuses to deliver
such report, the court on motion and notice may make an order
requiring delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his OR HER
testimony if offered at the trial.

If requested by the party examined, the party causing the

examination to be made shall deliver to him a copy of a detailed written
report of the examining physician setting out his findings and
conclusions. After such request and delivery, the party causing the
examination to be made shall be entitled upon request to receive from
the party examined a like report of any examination, previously or
thereafter made, of the same mental or physical condition.

If the party examined refuses to deliver such report, the court on

motion and notice may make an order requiring delivery on such terms
as are just, and if a physician fails or refuses to make such a report the
court may exclude his testimony if offered at the trial.

Section 4.Waiver of privilege. — By requesting and obtaining a report

of the examination so ordered or by taking the deposition of the
examiner, the party examined waives any privilege he OR SHE may
have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or
may thereafter examine him OR HER in respect of the same mental or
physical examination.

Waiver of Privileged
By requesting a report of the examination, or by taking the
deposition of the examiner, the party examined waives any privilege he

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may have in the action or any other involving the same controversy,
regarding the testimony of every other person who has examined or
may thereafter examine him in respect of the same mental or physical
examination. (Sec. 4, Rule 28)
Sample form
MOTION FOR PHYSICAL AND MENTAL EXAMINATION (RULE 28)
PLAINTIFF, by counsel and to this Honorable Court, respectfully
alleges:
1. One of the issues raised by the defendant is this case is that he
did not voluntarily agree to, and execute, the deed of sale of a
parcel of land, subject matter of the pending case, because he
allegedly was insane at the time of the execution of said deed
of sale.
2. To determine defendant’s claim of insanity, it is necessary that
a physical and mental examination of defendant be conducted
by a government physician at the Philippine General Hospital,
specifying the time, place, manner, condition and scope of the
examination of said person and directing the examining
physician to render a written report thereon.

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 RULE 29

REFURAL TO COMPLY WITH MODES OF DISCOVERY

Section 1.Refusal to answer. — If a party or other deponent refuses to

answer any question upon oral examination, the examination may be
completed on other matters or adjourned as the proponent of the
question may prefer. The proponent may thereafter apply to the
proper court of the place where the deposition is being taken, for an
order to compel an answer. The same procedure may be availed of
when a party or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party
or deponent to answer the question or interrogatory and if it also
finds that the refusal to answer was without substantial justification,
it may require the refusing party or deponent or the counsel advising
the refusal, or both of them, to pay the proponent the amount of the

519
reasonable expenses incurred in obtaining the order, including
attorney's fees.

If the application is denied and the court finds that it was filed
without substantial justification, the court may require the proponent
or the counsel advising the filing of the application, or both of them,
to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including
attorney's fees.

Refusal to answer any question upon oral examination

1. If a party or other deponent refuses to answer any question

upon oral examination, the examination may be completed on
other matters or adjourned as the proponent of the question
may prefer. The proponent may thereafter apply to the proper
court of the place where the deposition is being taken, for an
order to compel an answer.

2. If a party or other witness refuses to be sworn or refuses to

answer any question after being directed to do so by the court
of the place in which the deposition is being taken, the refusal
may be considered as a contempt of that court.

3. If the application is granted, the court shall require the refusing

party or deponent to answer the question or interrogatory and
if it also finds that the refusal to answer was without
substantial justification, it may require the refusing party or
deponent or the counsel advising the refusal, or both of them,
to pay the proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorney's fees.

520
Section 2.Contempt of court. — If a party or other witness refuses to
be sworn or refuses to answer any question after being directed to do
so by the court of the place in which the deposition is being taken, the
refusal may be considered a contempt of that court.

Contempt of court

If a party or other witness refuses to be sworn or refuses to

answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be
considered a contempt of that court.

Section 3.Other consequences. — If any party or an officer or

managing agent of a party refuses to obey an order made under
section 1 of this Rule requiring him to answer designated questions,
or an order under Rule 27 to produce any document or other thing for
inspection, copying, or photographing or to permit it to be done, or to
permit entry upon land or other property or an order made under
Rule 28 requiring him to submit to a physical or mental examination,
the court may make such orders in regard to the refusal as are just,
and among others the following:

(a) An order that the matters regarding which the questions

were asked, or the character or description of the thing or land,
or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support

or oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items
of testimony, or from introducing evidence of physical or mental
condition;

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 (c) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto,

an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination.

A. Refusal to answer designated or particular questions or refusal to

produce documents or things or to submit to physical or mental
examination

1. The court may order that the matters regarding which the
questions were asked shall be taken as established for purposes
of the action in accordance with the claim of the party obtaining
the. (Sec. 3 [a], Rule 29).

2. The court may issue an order refusing to allow the disobedient

party to refuse or support designated clams or defenses or
prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing
evidence of physical or mental condition.

3. The court may issue an order striking out pleadings or parts

thereof, staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party.

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 4. The court may direct the arrest of any party or agent of a party for
disobeying any of the orders of the court, except an order to
submit to a physical or mental examination.

Section 4.Expenses on refusal to admit. — If a party after being served

with a request under Rule 26 to admit the genuineness of any
document or the truth of any matter of fact serves a sworn denial
thereof and if the party requesting the admissions thereafter proves
the genuineness of such document or the truth of any such matter of
fact, he OR SHE may apply to the court for an order requiring the
other party to pay him OR HER the reasonable expenses incurred in
making such proof, including attorney's fees. Unless the court finds
that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued.

Refusal to admit

If a party after being served with a request under Rule 26 to admit

the genuineness of any document or the truth of any matter of fact
serves a sworn denial thereof and if the party requesting the
admissions thereafter proves the genuineness of such document or the
truth of any such matter of fact, he may apply to the court for an order
requiring the other party to pay him the reasonable expenses incurred
in making such proof, including attorney's fees. Unless the court finds
that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued.

Refusal to admit

If a party refuses to admit the genuineness of any document or

the truth of any matter of fact and serves a sworn denial thereof and if
the other party later on proves the genuineness of the document or the
truth of such matter of fact, the court upon proper application, may

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order the former to pay the reasonable expenses in making such proof,
including attorney’s fees.

Section 5.Failure of party to attend or serve answers. — If a party or

an officer or managing agent of a party wilfully fails to appear before
the officer who is to take his deposition, after being served with a
proper notice, or fails to serve answers to interrogatories submitted
under Rule 25 after proper service of such interrogatories, the court
on motion and notice, may strike out all or any part of any pleading of
that party, or dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party, and in its discretion,
order him OR HER to pay reasonable expenses incurred by the other,
including attorney's fees.

Failure to attend depositions or to serve answers to interrogatories

(BAR 2010)

1. The court may

(a) strike out all or any part of the pleading of that party, or
(b) dismiss the action or proceeding or any part thereof, or
(c) enter a judgment by default against that party, and in its
discretion,
(d) order him to pay reasonable expenses incurred by the
other, including attorney’s fees.

2. The consequences under Sec. 5 of Rule 29 will apply if a party

refuses to answer the whole set of written interrogatories, and
not just a particular question. Where the party upon whom the
written interrogatories is served, refuses to answer a particular
question in the set of written interrogatories and despite an
order compelling him to answer the particular question, still
refuses to obey the order, Sec 3 [c] of Rule 29 will apply.
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 The matter of how, and when, the above sanctions should be
applied is one that primarily rests on the sound discretion of the court
where the case is pending, having always in mind the paramount and
overriding interest of justice.

Section 6.Expenses against the Republic of the Philippines. —

Expenses and attorney's fees are not to be imposed upon the Republic
of the Philippines under this Rule. (6)

Refusal to comply with MODES OF DISCOVERY (RULE 29)

The sanctions for refusal to comply with the modes of discovery
may be summarized as follows:
A. Refusal to answer any question upon oral examination:

1. The court may upon proper application, compel a deponent

who refuses to answer an oral examination. The same applies
to a witness who refuses to answer an interrogatory submitted
(Sec. 1, Rule 29). A refusal to answer after being directed by the
court may be considered as a contempt of court (Sec. 2, Rule
29).

The court may order the deponent, a party, or the counsel

advising the refusal or both of them, to pay the proponent the
amount of reasonable expenses incurred in obtaining the
order, including attorney’s fees.
2. If the application for an order to compel a deponent to answer
is denied because of the absence of a substantial justification,
the court may require the proponent or the counsel advising

525
 the application, or both of them, to pay to the refusing party or
deponent the amount of reasonable expenses incurred in
opposing the application, including attorney’s fees.

B. Refusal to be sworn

A refusal of a party to be sworn after being directed by the court

may be considered as contempt of court.

References:

1. Civil Procedure – A Guide for the Bench and the Bar—by

Ferdinand Tan
2. Civil Procedure – The Bar Lecture Series Vol. 1 – by Willard B.
Riano
3. Answer to Bar Examination Questions in Remedial Law
4. 2019 Revised Rules on Civil Procedure

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