Rule 9 (Connect with Rule 18.

Rule 18 Correlate to Rule 14) NOTES AND CASES:

Effect of Failure to Plead Compulsory Counterclaim
SECTION 1 1. Any claim for money or other relief
2. By which the defending party may have against the opposing party
General Rule: Defenses and Objections not pleaded either in a motion to dismiss or in the answer are
3. Arises at the time of suit
deemed waived
4. Necessarily connected with the same transaction or occurrence that is the subject matter of
Exceptions: the plaintiff’s complaint

1. The Court has no Jurisdiction over the subject matter IT IS COMPULSORY

2. There is another action pending between the same parties for the same cause
1. It is within the Jurisdiction of the Court
3. The action is barred by a prior judgement or by statute of limitations
2. Does not require the presence of third parties over whom the court cannot acquire jurisdiction
THE COURT SHALL DISMISS THE CLAIM for its adjudication
3. Will be barred if not set-up in the answer to the complaint in the same case.
NOTES AND CASES 4. Any other claim is permissive
Section 1, Rule 9- Instances wherein the court may dismiss the claim Counterclaim is any claim by which the defending party may have against an opposing party.
a. Lack of jurisdiction over the Subject Matter Compulsory Counterclaim
b. Litis Pendentia
c. Res Judicata 1. Cognizable before the regular Courts of Justice
d. Prescription of Action 2. Arises out of or is connected with the transaction or occurrence constituting the subject matter
of the opposing party’s claim
Distinctions between Section 1, Rule 9 and Rule 16 of the 1997 Rules of Civil Procedure 3. Does not require the presence of third parties over whom the court cannot acquire jurisdiction
Rule 16, 1997 Rules of Civil Procedure Section 1, Rule 9 for its adjudication.
Grounds for a motion to dismiss the complaint. Deals with the dismissal of the complaint by the 4. Must be within the Jurisdiction of the Court (as to the amount and nature)
Court. Exception: The Court has no Jurisdiction to entertain the claim
It requires for adjudication the presence of third persons over whom the Court
Acquires Jurisdiction.
*If the defendant fails to raise the defense not specifically excepted in Section 1, Rule 9, such defense
shall be deemed waived and the defendant is already estopped from relying upon the same in further Compulsory v. Permissive Claims
proceedings. Compulsory Claims Permissive Claims
Defense of Lack of Jurisdiction may be raised at any stage of the proceedings even for the first time on Barred if not set-up in the same action Does not arise out of or is not necessarily
appeal connected with the Subject Matter of the
Opposing Party’s Claim.
Can be separately filed in another case.
SECTION 2 Does not Require Payment of Docket Fees Requires Payment of Docket Fees

A Compulsory Counterclaim or a cross-claim, not set-up shall be barred. Determination of the Nature of the Counterclaim
It is relevant for purposes of compliance to the requirements of initiatory pleadings. The Dismissal of the Original Bill carries with it a purely defensive cross-bill but not one
seeking affirmative relief.
1. The issues of fact and Law are largely the same
2. In the Absences of the Compulsory Rule, Res Judicata Bar a Subsequent suit on the
Rule 9 Section 3, 1997 Rules of Civil Procedure
Defendant’s Claim
OLD PROVISION v. NEW PROVISION
3. Same Evidence to support or refute the claim and counterclaim
1. The first paragraph is the same, except for the amendment to address gender sensitivity.
4. Logical Relation between the claim and counterclaim
2. Paragraph (a) only involves only the inclusion of the word “shall” to emphasize that the
THE ABOVE ENUMERATED INSTANCES WOULD INDICATE A COMPULSORY COUNTERCLAIM defaulting party will not take part in the trial.
3. Paragraph (a) only involves only the inclusion of the word “shall” to emphasize that the
Villanueva-Ong v. Juan Ponce Enrile defaulting party will not take part in the trial.
“A Counterclaim purely for damages and attorney’s fees by reason of the unfounded suit filed by the 4. Paragraph (c) is the same.
respondent, has long been settled as falling under the classification of compulsory counterclaim and it 5. Paragraph (d) only includes a grammatical amendment of inserting the word “neither”.
must be pleased in the same action, otherwise, it is barred.” 6. Paragraph (e) as amended, specifies that the prosecuting attorney is the Solicitor General
or his or her deputized public prosecutor.
Lafarge Cement Phil. Inc. v. Continental Cement Corp.
NOTES AND CASES:
“Counterclaims seeking moral, actual and exemplary damages and attorney’s fees against the
respondent on account of their malicious and unfounded complaint was compulsory.” When the defendant can be declared in default v. Failure of the Defendant to Attend Pre-Trial

OCA Circular No 96-2009 entitled “Docket Fees For Compulsory Counterclaims” Dated August 13, Defendant be declared in default
2009 Failure to file a responsive pleading within the
reglementary period
It Clarifies that the rule on imposition of filing of fees on compulsory counterclaims has been The Court can render Judgement granting the
suspended. Such suspension remains in force up to this day. claimant
Failure to Attend Pre-Trial (Section 5, Rule 18)
The Plaintiff being allowed to present evidence
es parte
Allows the Plaintiff to present evidence ex parte
for the Court to render Judgement

CROSS CLAIM
Section 8, Rule 6 of the 1997 Rules of Civil Procedure
Cross-Claim
1. is any claim by one party against a co-party
2. arising out of the transaction or occurrence that is the subject matter either of the original
action or of a counterclaim therein.
3. Such cross-claim may cover all or part of the Original Claim
Cannot Claim More Rights than the plaintiffs themselves
Cross-Bill
1. Brought by the Defendant in an equity suit against other defendants in the same suit.
2. Considered as an Auxiliary suit dependent upon the Original Bill
3. Can be sustained only on matters growing out of the Original Bill
The Defendant cannot be declared in default unless such declaration is preceded by a valid service of
summons
Excusable Negligence- is one which ordinary diligence and prudence could not have granted against.
Effect of Order of Default:
1. The Court may proceed to render judgement in case where the defendant fails to timely file his
or her answer.
2. The Court may decline to render judgement immediately and instead requires the plaintiff to
present evidence
Rule 9, Section 3(a), a party declared to be in default shall nevertheless be “entitled to notice of
subsequent proceedings,” although he or she may no longer take part in the trial.

Spouses Delos Santos v. Carpio
Three Requirements for which the Court may declare the defending party in default:
1. The claiming Party must file a motion asking the court tom declare the defending party in
default;
2. The defending Party must be notified of the motion to declare him in default
3. The Claiming Part must prove that the defending party has failed to answer within the period
provided by the Rule.
Default, therefore, is not meant to punish the defendant, but to enforce the prompt filing of the
answer to the complaint.
The Question of whether or not a Party in default can file an Appellees Brief is a Question which
should not be decided by any order or Judgement by default of the Trial Court, But by the Appellate
Court.
Rule 9, Section 3(b)
“The Remedy against an order of default is a motion to set it aside on the ground of Fraud,
Accident, Mistake, or Excusable Negligence.’
Agravante v. Patriarca
The motion to lift order of default must “be appended an affidavit showing the invoked ground, and
another, denominated affidavit of merit, setting forth fact constituting the Party’s meritorious
defense or defenses.”
In relation to Rule 8, Section 5 of the 1997 Rules of Civil Procedure which requires that “in all
averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with
particularity.”
Requisites to warrant the setting aside of an order of default:
1. It must be made by motion under oath by one that has knowledge of the facts:
2. It must be shown that the failure to file answer was due to fraud, accident, mistake, or
excusable negligence; and
3. There must be a proper showing of the existence of a meritorious defense.
(Montinola, Jr. v. Republic Planters Bank)
Order of Default shall be Liberally Construed
If Judgement had already been rendered but has not yet become final and executory, an appeal
asserting that the judgement was contrary to the law or to the evidence, or a motion for new
trial under Rule 37, may be filed.
If Judgement has become final and executory, a defaulted defendant may file a petition for relief
from judgement under Rule 38.
If the defaulted defendant fail to file a petition for relief, a Petition for Annulment of Judgement on
the ground of lack of jurisdiction or extrinsic fraud remains available.
Effect of Partial Default:
The Defense of non-exhaustion of her administrative remedies raised by the non-defaulting
defendant inured to the benefit of the respondents who had been declared in default.
Declaration pf Default against Original Defendants shall not affect the Transferee Pendente-Lite
To proceed with the ex parte presentation of evidence against the named defendants after De
Vera;s answer had been admitted would not only be a violation of Rule 9, Section 3(c), but
would also be a gross disregard of De Vera’s right to due process.
Extent of Relief to be Awarded
The Court Cannot grant a relief not prayed for in the pleadings or in excess of what is being sought
by the party
They cannot grant a relief without first ascertaining the evidence presented in support thereof
Section 3(d), Rule 9 limits the limit that may be granted by the courts to what has been prayed for
in the Complaint
To Safeguard the Defendants Right to Due Process
REMEDIES AVAILABLE FOR THE DEFENDANT DECALRED IN DEFAULT UNDER RULE 9,
SECTION 3(b)
a. Motion for New Trial
The Defendant Discover s his or her default after judgement but prior to the judgement
becoming final and executory under Rule 37, Section 1(a)
b. Petition for Relief from Judgement
Discovers the Default after Judgement become final and executory pursuant to Rule 38,
Section 1
c. Appeal
Pursuant to Rule 41, Section 2. He or She may do so even if he or she did not file a petition to
set aside order of default
 d. Petition for Certiorari
If the Trial Court Declared the Defendant in Default with Grave Abuse of Discretion
NOTES AND CASES:
THE REMEDIES ARE MUTUALLY EXCLUSIVE, NOT ALTERNATIVE OR CUMULATIVE
Prevailing Rule in the amendment of Pleading
The defendant may avail of only one of the three remedies
1. The Option of a Party-Litigant to amend a pleasing is not without limitation.
a. The Purpose is to set-up a cause of action not existing at the time of the filing of the
complaint- amendment is not Allowed
WHERE NO DEFAULT IS ALLOWED
Section 2, Rule 10
SECTION 3(e), Rule 9
OLD PROVISION v. NEW PROVISION
No Default in case of failure to file an answer in
Amendment qualified the period of 10 days to 10 calendar days.
a. Action for annulment or declaration of nullity of marriage; or
b. For legal separation NOTES AND CASES:
Purpose of the Participation of the Public Prosecutor or the Office of the Solicitor General Prior to the Filing of an Answer, The Plaintiff has the absolute right to amend the complaint whether a
new cause of action or change in theory is introduced.
To ensure that the interest of the State is represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or Rationale:
suppression of evidence.
Section 3, Rule 10
PROVISION OF THE FAMILY CODE
Substantial Amendment of the Complaint is not allowed without leave of court after an answer has been
The Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to served, because any material change in the allegations contained in the complaint could prejudice the
take steps to prevent collusion between the parties and to take care that evidence is not fabricated or rights of the defendant who has already set up his defense in the answer
suppressed
WHEN A PARTY CAN AMEND HIS PLEADING AS A MATTER OF RIGHT

A Party may amend his pleading once as a matter of right at any time before a responsive
Rule 10 pleading is served. No motion to admit the same is required. As the amendment is allowed
Amended and Supplemental Pleadings as a matter of right, prior leave of court was unnecessary.

Section 1: Section 3, Rule 10

1. Pleadings may be amended by Adding or Striking out an allegation
2. or the name of any party,
3. or by correcting a mistake in the name party
4. or a mistaken or inadequate allegation or description in any other respect
5. So that the actual merits of the controversy may speedily be determined without regard to
technicalities
6. And in the most expeditious and inexpensive manner
OLD PROVISION v. NEW PROVISION
The amendment makes it not merely directory but mandatory for the court to deny leave if
the motion was made with intent to delay, confer jurisdiction on the court, or the pleading
stated no cause of action from the beginning which could be amended.
Even prior to the amendment, it was settled that an amendment to confer jurisdiction on
the court will not be allowed (Ventura v. Militante, G.R. No. 63145, [October 5, 1999)
Likewise, it is settled, even before the amendment, 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 case 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. (Swagman Hotels & Travel Inc. v.
Court of Appeals, G.R. No. 161135, April 8, 2005)
The second paragraph is the same.
NOTES AND CASES:
RATIONALE
1. The Amendments sought to be made shall serve the higher interest of substantial
justice
2. Prevent Delay
3. Equally Promote the Laudable Objective of the Rules (to secure a just, speedy and
inexpensive disposition of every action and proceeding).
Section 4:
Formal Amendments
1. Defect in the designation of the Parties and other clearly clerical or typographical
errors
2. May be summarily corrected by the court at any stage of the action, as its initiative
or on motion
3. Provided no prejudice is caused thereby to the adverse party
NOTES AND CASES:
When Plaintiff can be allowed to amend his complaint for the Third Time
As long as it does not appear that the motion for leave was made with bad faith or with
intent to delay the proceedings, courts are justified to grant leave and allow the filing of an
amended pleading.
Section 5, Rule 10
OLD PROVISION v. NEW PROVISION
Under the old rules, when evidence not within the issues raised in the pleadings is
presented by the parties during the trial, the pleadings are subsequently amended on
motion of a party to conform to such evidence. Thus, a complaint which fails to state a
cause of action may be cured by evidence presented during the trial. (Swagman Hotels &
Travel Inc. v. Court of Appeals, G.R. No. 161135, April 8, 2005) The amended rules provide,
that the issues not raised in the pleadings but tried with the consent of the parties shall
already be treated as if they had been raised in the pleadings and as such, there no need to
amend the pleadings to conform to evidence, as they are deemed amended already. Thus,
the amendment, even by the title of the section, provides that No amendment is necessary
to conform to or authorize presentation of evidence.
Applicability of Section 5
a. When the evidence is introduced on an issue not alleged in the pleadings and no
objection interposed by the adverse party.
b. When evidence is offered on an issue not alleged in the pleadings but an objection is
raised against the offer
Section 5, Rule 10 was taken from rule 15(v) of the Federal Rules of Civil Procedure.
Section 6, Rule 10
OLD PROVISION v. NEW PROVISION
The amendment involves a grammatical change, to add a comma after the word “party”, to
address gender sensitivity and to qualify the 10-day period stated therein as 10 calendar
days.
Supplemental Pleading
Only serves to bolster or add something to the Primary Pleading.
Its function is to set-up new facts that Justify, Enlarge, pr change the kind of relief sought
with respect to the same subject matter of the Original Complaint
Supplemental Pleading States the Transactions, Occurrences or events which took place
since the time the pleading sought to be supplemented was filled.
Supplemental Pleading is meant to supply deficiencies in aid of the Original Pleading and not
to dispense with or substitute the Latter.
It does not supersede the Original, But assumes that the original pleading is to stand An Amended Pleading Supersedes the Pleading that it Amends.

WHEN SECOND AMENDED/SUPPLEMENTAL COMPLAINT IS INAPPROPRIATE

1. The Joinder of causes of action is indeed allowed under Section 5, Rule 2 of the 1997
Rules of Court.
2. If there are multiple Parties, The Joinder is made subject to the rules on Joinder of
parties under Section 6, Rule 3.

SECTION 7- Filing of Amendment Proceedings

1. When any pleading is amended, A new copy of the Entire Pleading

2. Incorporating the amendments
3. Which shall be indicated by appropriate marks, shall be filed.

Purpose of Section 7, Rule 10

The Convenience of the Court and the Parties.

It allows the Reader to be able to immediately see the modifications.

*Failure to use the appropriate markings for the deletions and intercalations will not affect
any substantive right.

*Its Absence cannot cause the denial of any substantive Right

SECTION 8

NEW PROVISION v. OLD PROVISION

The amended provision changes “received” to “offered” in evidence. This means that the
admissions in the superseded pleading may be offered, but not necessarily received in
evidence.

Purpose and effect of an amended Pleading

Pleadings are amended in order to allege facts which occurred prior to the filing of the
original pleading.