CIVIL PROCEDURE:

A GUIDE FOR THE BENCH AND THE BAR

(Featuring 2019 AMENDMENTS TO THE 1997
RULES ON CIVIL PROCEDURE [A.M. No. 19-10-20])
(Revised 2020 E dition)
B ook I
(RULES 1-35)

DEAN FERDINAND A. TAN, L.l.M

-President and Managing Director o f Academicus Review Center Inc.
-Master o f Law s Degree (L.I.M) Meritisimus, San Sebastian College Graduate School o f Law
-M em ber, C o m m ittee on R e m e d ia l L a w B a r E xam ination , UP L a w C en te r Inc.,
-Professorial Lecturer in Remedial Law Review 1 & 2, Civil Procedure, Criminal Procedure,
Special Proceedings, Evidence, Labor Law Review, Labor Relations, Labor Standards,
Legal Forms, Statutory Construction, Legal Ethics, De La Salle University College o f Law
University o f Santo Tomas Faculty o f Civil Law, Lyceum o f the Philippines College o f Law,
Adamson University College o f Law, University o f Makati College o f Law
-Formerly San Sebastian College o f Law, and
Polytechnic University o f the Philippines College o f Law,

Lecturer Mandatory Continuing Legal Education University o f the East Law Center Inc., PLS
Law Center Inc., Center for Global and B est Practices Inc., IBP University o f Batangas
and Cagayan De Oro City Chapter

National Bar Reviewer, Academicus Review Center Inc,

UP Law Center Inc., Arellano University Foundation Inc,
University o f Cebu Bar review Center, Powerhouse Review Center,
Lex Patriae Review Center Inc,
Formerly Villasis Law Center In c, Recoletos Law Center, Jurist Review Center Inc.,
University o f Pangasinan, CRC Review Center Inc., Silliman University,
UNO- Recoletos, Bacolod, Knowledge Power Review Center Inc.

Former Commissioner, Commission on Integrity and Bar Discipline (CBID),

Former Asst. Treasurer, Philippine Association o f Law Schools (PALS),
Former Dean o f San Sebastian-Recoletos Manila, College o f Law
Former OIC-Dean San Sebastian College Graduate School o f Law
Former Associate Dean o f San Sebastian College o f Law,
Former Prefect o f Discipline and Academics San Sebastian College o f Law,
Former Director Sebastinian Office o f Legal Aid (SOLA)
-President and Managirw. '&rectoj' o f Academicus Review- Center Inc.
-Master o f Law s Degree (L.LM) Merppieais, San Sebastian College Graduate School o f Law
-Member, Committee on Remedial Law Bar Examination, UP Law Center Inc.,
-Professorial Lecturer in Remedial Law Review 1 & 2, Civil Procedure, Criminal Procedure,
Special Proceedings, Evidence, Labor Law Review, Labor Relations, Labor Standards,
Legal Forms, Statutory Construction, Legal Ethics, De La SaBe University College o f Law
University o f Santo Tomas Faculty o f Civil Law, Lyceum o f the Philippines College o f Law,
Adam son University College o f Law, University o f Makati College o f Law
 Philippine Copyright 2020
by

ISBN 978-621-04-1234-5
No portion of th is book m ay be copied or
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publisher except b rief passages in books, articles,
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Any copy of th is book w ithout the corresponding

num ber and th e authorized signature of th e author
on th is page eith er proceeds from an illegitim ate
source or is in possession of one who h as no authority
to dispose of the same.

ALL RIGHTS RESERVED

No.
2520
Reprinted: February 2021 ISBN 978-621-04-1234-5

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Printed by

rex pnlnTlnq compnmi, inc.

Typography ft Creative Lithography
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 Formerly San Sebastian College o f Law, and
Polytechnic University o f the Philippines College o f Law,

Lecturer Mandatory Continuing Legal Education University o f the East Law Center Inc.,
PLS Law Center Inc., Center fo r Global and Best Practices Inc.,
IBP University o f Batangas and Cagayan De Oro City Chapter

National Bar Reviewer, Academicus Review Center Inc.,

UP Law Center Inc., Arellano University Foundation Inc.,
University o f Cebu Bar review Center, Powerhouse Review Center,
Lex Patriae Review Center Inc.,
Formerly ViUasis Law Center Inc., Recoletos Law Center, Jurist Review Center Inc.,
University o f Pangasinan, CRC Review Center Inc., SiUiman University,
UNO- Recoletos, Bacolod, Knowledge Power Review Center Inc.

Former Commissioner, Commission on Integrity and Bar Discipline (CBID),

Former Asst. Treasurer, Philippine Association o f Law Schools (PALS),
Former Dean o f San Sebastian- Recoletos Manila, College o f Law
Former OIC-Dean San Sebastian College Graduate School o f Law
Former Associate Dean o f San Sebastian College o f Law,
Former Prefect o f Discipline and Academics San Sebastian College o f Law,
Former Director Sebastinian Office o f Legal Aid (SOLA)

Special Feature*
1) 2019 Amendments to the 1997 Rules on Civil Procedure
2) 1997 Rules of Civil Procedure
3) Latest jurisprudence up to 2020
4) Judicial Affidavit Rule (A.M. No. 12-8-8-SC; effective Jan. 13, 2013)
5) Efficient Use of Paper Rule (A.M. No. 11-9-4-SC; effective Nov. 13, 2012)
7) Rules of Procedure in Environmental Cases (A.M. No. 09-6-8-SC; April 29,
2010)
8) Rules of Procedure for Intellectual Property Rights Cases (A.M. No. 10-3-
10-SC)
9) Guidelines for Litigation in Quezon City Trial Courts (A.M. No. 11-6-10-SC)
10) Revised 2016 Rules of Procedure in Small Claims Cases (A.M. No. 08-8-7-
SC, as amended)
11) Muslim Code of the Philippines (P.D. 1083)
12) R.A. 1379 on Civil Forfeiture of illegally acquired properties of public officers
and employees
13) B.P. 129, Judiciary Reorganization Act of 1980
14) R.A. 7691, An Act Expanding the Jurisdiction of MTC/MCTC
15) R.A. 7160, Local Government Code of the Philippines
16) P.D. 1529 Property Registration Decree on Adverse Claim
17) Act No. 876 An Act to Authorize the Making of Arbitration and Submis­
sion Agreements, To Provide For The Appointment Of Arbitrators And The
Procedure For Arbitration In Civil Controversies, And For Other Purposes;
18) Republic Act No. 9285, An Act to Institutionalize the Use Of An Alternative
Dispute Resolution System in the Philippines And To Establish The Office
For Alternative Dispute Resolution, And For Other Purposes, April 2, 2004
19) A.M. No. 07-11-08-SC, Special Rules of Court on Alternative Dispute
Resolution (referred herein as Special ADR Rules)
20) DNA Evidence Rule (A.M. No. 06-11-5-SC, October 15, 2007)

iii
IV
 PREFACE
T h is 2 0 2 0 rev ise d e d itio n of Civil P ro c e d u re a G u id e for
th e B e n c h & th e B a r B ook w a s th e p r o d u c t o f th e a u t h o r ’s
in s p ira tio n b ro u g h t a b o u t b y h is e n h a n c e d c o m m u n ity q u a r ­
a n tin e d u r in g th e p e rio d o f M a rc h 15 to A pril 3 0 o f 2 0 2 0
c a u s e d b y th e d re a d e d C o ro n a V ir u s - 19. W ith all h u m ility , it
is h is w ay o f giving d u e rec o g n itio n to all th e d o c to rs , n u r s e s ,
m ed ic al sta ffs , v o lu n te e rs , so ld ie rs, p o lic e m e n a n d o th e r e s ­
s e n tia l w o rk e rs w ho b rav e ly c o n fro n te d th e d re a d e d d is e a s e
w ith o u t a n y re se rv a tio n o r fe a r of b e in g infected j u s t to p ro te c t
o u r p eo p le in c lu d in g m y fam ily, a n d a s s u c h I c o n s id e r th e m
a s th e m o d e rn d a y h e ro e s of o u r tim e.
T h is h u m b le b o o k f e a tu re s th e 2 0 1 9 A m e n d m e n ts to
th e 1997 R u le s o n Civil P ro c e d u re , la te s t ju r is p r u d e n c e u p
to 2 0 2 0 , v a rio u s a p p lic a b le law s a n d ru le s a n d re g u la tio n s
p ro m u lg a te d by th e S u p re m e C o u rt. It c o n s is ts of tw o (2)
m a jo r p a r ts , n a m e ly P a rt I w h ic h d e a ls w ith b a s ic p rin c ip le s
a n d d o c trin e s in civil a c tio n s , C o n s titu tio n a l p ro v isio n s in r e ­
la tio n to th e 1997 R u les o n Civil P ro c e d u re m o re p a rtic u la rly
R u le s 1-5 w h ic h re m a in s effective a n d a p p lic a b le a n d n o t
s u b je c te d to r e c e n t a m e n d m e n ts . P a rt II o f th e b o o k p rovide
for th e c o d a l p ro v isio n s from R u le s 6 -3 5 o f th e 2 0 1 9 A m e n d ­
m e n ts to th e 1 9 9 7 R u les o n Civil P ro c e d u re . Likew ise, it is
p re s e n te d a s a tex tb o o k a n d a s a review er m a te ria l, d is c u s s e d
in a sim plified a n d c o n c ise m a n n e r in a q u e s tio n a n d a n s w e r
fo rm a t, a n d h a s a s tu d e n t frie n d ly a p p ro a c h u s in g a la rg e r
fo n t for e a s y re a d in g . T h is will se rv e a s a tool a n d g u id e for
th e s tu d e n ts , r e fre s h e rs , a n d b a r review ees for th e p u rp o s e
o f th e ir s tu d ie s a n d review , a n d for p ra c tic in g law y ers, a n d
ev en ju d g e s for th e p ra c tic e of th e ir p ro fe ssio n .
To th is e n d , th e a u th o r h u m b ly believes t h a t th e p u r ­
p o se of th is h u m b le p iece o f w o rk w h ic h e m a n a te d from h is
d e s ire to be o f serv ice to h is beloved s tu d e n ts a n d th e w hole
legal c o m m u n ity by p ro v id in g c o m p le te , c o n c ise , a n d well-
p r e s e n te d r u le s o n civil p ro c e d u re in c o rre la tio n s w ith o th e r
a p p lic a b le r u le s a n d law , will be a tta in e d a n d s u b -s e rv e d .
T h a n k y o u v e iy m u c h , a n d G od b le s s u s all!

DEAN FERDINAND A. TAN, Ll.M.

v
VI
 DEDICATION
T h is h u m b le w o rk is w h o le h e arte d ly d e d ic a te d to m y ever
loving a n d s u p p o rtiv e wife, A m abelle R. T a n w h o is alw ay s
w ith m e ev en d u r in g th e m o s t try in g m o m e n ts o f m y life, m y
b e s t frie n d , loyal s u p p o rte r, c ritic a n d d e fe n d e r;
To m y c h ild re n a n d d a u g h te r-in -la w , J o s e p h A ldrich,
P a u lo G a b rie l, F e rd in a n d J r ., S a ra , a n d o u r little b u n d le of
jo y E lija h C a e lu m w h o a re a lw a y s th e s o u rc e o f m y s tr e n g th
a n d in s p ira tio n to w o rk h a rd e r a n d leave a lo n g -la stin g legacy
for th e fam ily;
To m y d e p a rte d p a r e n ts , C o n c h ita A. T a n , a n d A ntonio
A. T a n , Sr. w h o ra is e d m e to be a b e tte r, G od fe a rin g p e rs o n ,
a n d ta u g h t m e to be h u m b le a n d b e o f service to o th e r people
r e g a rd le s s of th e ir s ta t u s in life; th e y h a v e im p elled m e to
alw ay s le a n o n w h a t is t r u e a n d to u p h o ld w h a t is rig h t.
A nd m o s t e sp ec ially to G od A lm ighty w h o is m y savior,
a n d c o n s ta n t c o m p a n io n th r o u g h o u t m y jo u r n e y in th is
e a rth ly life.

DEAN FERDINAND A. TAN, U .M .

vii
viii
 ACKNOWLEDGMENT

T h e a u th o r e x te n d s h is d e e p e s t g r a titu d e to a ll th e p e r ­
s o n s w h o o n e w ay o r th e o th e r c o n trib u te d in th e p re p a ra tio n
a n d c o m p le tio n o f th is h u m b le w o rk re g a rd in g th e ir s u g g e s ­
tio n s , e n c o u ra g e m e n t a n d o p in io n s o n th e s u b je c t m a tte r. Mr.
J u s t i n S. B a y a n i, a n d M s. Z h a rm a in e T a m o n d o n g for th e ir
r e s e a r c h o n s o m e re la te d law s, r u le s of p ro c e d u re , a n d la t­
e s t a n d a p p lic a b le ju r is p r u d e n c e . M s. C larice M. A y to n a for
h e r te c h n ic a l a n d m a n p o w e r s u p p o r t in m a k in g th is b o o k a
reality .
A lso, m y d e e p e s t g r a titu d e is e x te n d e d to th e w h o le le ­
gal c o m m u n ity , to D e a n M a ria A n n a D. A bad, D e a n S o le d a d
D e re q u ito M aw is, D e a n Nilo D ivina, D e a n Virgilio R. D elos
R eyes, D e a n J o s e L ayug J r. w h o a re a lw a y s b eliev in g in th e
w isd o m a n d in te n tio n o f th e a u th o r . To all m y s tu d e n t s from
De La S alle U n iv e rsity College of Law, U n iv e rsity o f S a n to T o­
m a s F a c u lty o f Civil Law, L y c e u m U n iv e rsity C ollege o f Law,
A d a m so n U n iv e rsity C ollege o f Law, U n iv e rsity o f M a k ati C ol­
lege o f Law, a n d U n iv e rsity o f th e E a s t College o f Law. To all
o u r a d v a n c e a n d p r e - b a r rev iew ees fro m A c a d e m ic u s Review
C e n te r In c., a s w ell a s law p ro fe s s o rs , legal p ra c titio n e rs ,
a n d a ll b a r rev iew ees fro m a ll p a r t s of th e P h ilip p in e s w ho
a lw a y s se rv e a s th e m o tiv a tin g fa c to r for th e a u th o r to co m e
u p w ith th e id e a o f p r e p a r in g th is b o o k Civil P ro c e d u re A
G u id e for th e B e n c h a n d th e B a r 2 0 2 0 e d itio n in th e h o n e s t
b e lie f t h a t it will leave a good a n d lo n g la s tin g leg acy in th e
legal p ro fe s s io n a n d o u r beloved legal c o m m u n ity .
L a st b u t n o t th e le a s t, to th e c o u ra g e o u s m ed ic al a n d e s ­
s e n tia l fro n t lin e rs fig h tin g for th e d e a d ly C o ro n a v iru s-1 9 , a n d
th e ir fallen c o m ra d e s w h o a re th e so -c a lle d m o d e rn h e ro e s of
o u r g e n e ra tio n , THANK YOU VERY MUCH a n d SALUTE TO
ALL O F YOU!

DEAN FERDINAND A. TAN, Ll.M.

X
 CONTENTS
PARTI
CHAPTER I
PRELIMINARY CONSIDERATION

I. DEFINITION OF TERMS
1. W hat is Remedial Law? ...................................................
2. W hat is a Remedial S tatu te? ..........................................
3. W hat is Procedural Law? .................................................
4. W hat is Substantive L aw ?................................................
5. W hat is a court? ................................................................
6. W hat is a C onstitutional c o u r t? .....................................
7. W hat is a statu to ry c o u r t? ..............................................
8. Who is a judge? .................................................................
9. W hat is a court of la w ? .....................................................
10. W hat is a court of equity? ..............................................
11. W hat is a civil action? ......................................................
12. W hat is a crim inal action? .............................................
13. W hat is a special proceeding? .......................................
14. W hat is the expanded definition of judicial power? ..
15. W hat is jurisdiction? ........................................................
16. W hat is general jurisdiction? ..........................................
17. W hat is special or limited jurisdiction? .......................
18. W hat is original ju ris d ic tio n ? ..........................................
19. W hat is exclusive jurisdiction? ......................................
20. W hat is exclusive original jurisdiction? ......................
21. W hat is appellate jurisdiction? ......................................
22. W hat is territorial jurisdiction? .....................................
23. W hat is co n cu rren t/co n flu en t or coordinate
CTiCNO'CT>CT>o\cnuiuicncntncn-^-^-&-^

ju ris d ic tio n ? .................................................................

24. W hat is delegated ju ris d ic tio n ? ......................................
25. W hat is venue? ..................................................................
26. W hat is a question of law? .............................................
27. W hat is a question of fact? .............................................
28. W hat is an action? ............................................................
29. W hat is a cause of a c tio n ? ...............................................
30. W hat is a right of a c tio n ? .................................................
31. W hat is a real action? ......................................................
32. W hat is a personal action? .............................................
33. W hat is a mixed action? ..................................................
34. W hat is a local a c tio n ? ......................................................
35. W hat is a transitory a c tio n ? ............................................
36. W hat is an action in rem ?................................................
37. W hat is an action in person am ? .....................................
38. W hat is an action quasi in rem ?.....................................
39. W hat is a pleading?............................................................

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40. W hat is a n initiatory pleading?....................................... 6
41. W hat is a responsive p le a d in g ? ...................................... 7
42. W hat is a c o m p la in t? ........................................................ 7
43. W hat is a com pulsory counterclaim ?............................ 7
44. W hat is perm issive counterclaim ?................................. 7
45. W hat is a co u n ter-co u n terclaim ?.................................. 7
46. W hat is a cross-claim ?...................................................... 7
47. W hat is a counter cro ss-claim ?...................................... 7
48. W hat is a th ird /fo u rth party -co m p lain t?..................... 8
49. W hat is a com plaint-in-intervention?........................... 8
50. W hat is an answ er?............................................................ 8
51. W hat is a reply?.................................................................. 8
52. W hat is lach es?................................................................... 8
53. W hat is splitting a cau se of a c tio n ? ............................... 8
54. Who is a real party -in -in terest?...................................... 9
55. Who is a representative p a rty ? ....................................... 9
56. Who is an indispensable p a rty ? ...................................... 9
57. Who is a necessary p a rty ? ................................................ 9
58. W hat is a class s u it? ......................................................... 9
59. W hat is a derivative s u it? ................................................. 10
60. W hat is a citizen s u it? ....................................................... 10
61. Who is an indigent p a rty /litig a n t//o rm a pauperis?.... 10
62. W hat is a verification?....................................................... 10
63. W hat is forum sh o p p in g ?................................................. 10
64. W hat is Litis pendentia? ................................................... 11
65. W hat is a n actionable docum ent?.................................. 11
66. W hat is a m otion ex-parte?.............................................. 11
67. W hat is a motion of c o u rse ? ............................................ 11
68. W hat is a litigated m otion?............................................... 11
69. W hat is a non-litigated m otion?...................................... 12
70. W hat is a special m o tio n ? ................................................ 12
71. W hat is a n oral m o tio n ?................................................... 12
72. W hat is a w ritten m o tio n ?................................................ 12
73. W hat is a n om nibus m otion r u le ? ................................. 12
74. W hat is th e m eaning of filing of the p le a d in g ? ........... 12
75. W hat is th e m eaning of service?..................................... 12
76. W hat is a n order of d e fa u lt? ............................................ 12
77. W hat is a judgm ent by defau lt?...................................... 12
78. W hat is extrinsic fra u d ? ................................................... 13
79. W hat is accident?................................................................ 13
80. W hat is m is ta k e ? ................................................................ 13
81. W hat is excusable negligence?....................................... 13
82. W hat is a m e n d m en t? ........................................................ 14
83. W hat is bill of p a rtic u la rs? ............................................... 14
84. W hat is a motion for bill of p a rticu la rs?....................... 14
85. W hat is Us p en d en s? .......................................................... 14
86. W hat is a notice of lis p e n d e n s? ..................................... 14
87. W hat is a m otion to d ism iss ? .......................................... 14
88. W hat is a rb itra tio n ? ........................................................... 14
89. W hat is a Strategic Lawsuit Against Public
Participation (SLAPP)?................................................ 15
90. W hat is intervention?........................................................ 15

xii
91. W hat is a negative defense?.......................................... 15
92. W hat is a n affirmative defense?................................... 16
93. W hat is a deposition?..................................................... 16
94. W hat is a pre-trial conference?.................................... 16
95. W hat is a mode of discovery?....................................... 16
96. W hat is a letter com m ission?....................................... 16
97. W hat is a letter rogatory?.............................................. 16
98. W hat is an interrogatory?.............................................. 17
99. W hat is an adm ission?................................................... 17
100. W hat is tria l? ................................................................... 17
101. W hat is ju d g m en t?.......................................................... 17
102. W hat is judgm ent by confession?............................... 17
103. W hat is judgm ent upon the m e rits ? ........................... 17
104. W hat is clarificatory ju d g m en t?................................... 18
105. W hat is judgm ent nunc pro tunc (literally
“now for th en ”) ? ....................................................... 18
106. W hat is judgm ent sin perjuicio?................................... 18
107. W hat is judgm ent on the pleadings?........................... 18
108. W hat is sum m ary judgm ent or “accelerated
judgm ent”? ................................................................ 18
109. W hat is several judgm ents?.......................................... 19
110. W hat is separate ju d g m en t?......................................... 19
111. W hat is special ju d g m e n t? ........................................... 19
112. W hat is judgm ent for specific a c ts ? ............................ 19
113. W hat is judgm ent on dem urrer to evidence?............ 20
114. W hat is conditional ju d g m en t?.................................... 20
115. W hat is a final ju d g m e n t? ............................................. 20
116. W hat is a final and executory ju d g m en t?.................. 20
117. W hat is a void ju d g m en t?.............................................. 20
118. W hat is a n am ended and clarified ju d g m e n t? .......... 21
119. W hat is a supplem ental ju d g m e n t? ............................ 21
120. W hat is a n alternative ju d gm ent?............................... 21
121. W hat is a deficiency ju d g m e n t?................................... 21
122. W hat is a declaratory ju d g m en t?................................. 21
123. W hat is a null and void ju d g m e n t? ............................. 22
124. W hat is a final order?..................................................... 22
125. W hat is a n interlocutory order?................................... 22
126. W hat is a compromise agreem ent?............................. 22
127. W hat is the m eaning of findings of fac t?................... 22
128. W hat is a service of pleading or paper?...................... 23
129. W hat is a motion for new tr ia l? ................................... 23
130. W hat is a motion for reconsideration?....................... 23
131. W hat is a newly discovered evidence?........................ 23
132. W hat is an affidavit of m e rit? ....................................... 24
133. W hat is a proform a m otion?......................................... 24
134. W hat is a p p e a l? ............................................................... 24
135. W hat is a petition for review ?....................................... 24
136. W hat is a quasi-judicial b o d y ? .................................... 24
137. W hat is a quasi-judicial power?................................... 25
138. W hat is a petition for relief?......................................... 25
139. W hat is an action for annulm ent of ju d g m e n t? ....... 25
140. W hat is collateral a tta c k ? .............................................. 25

xiii
141. W hat is execution?........................................................... 26
142. W hat is revival of ju d g m e n t? ........................................ 26
143. W hat is levy?...................................................................... 26
144. W hat is g a rn ish m e n t? ..................................................... 26
145. W hat is terceria or third-party c la im ? ......................... 26
146. W hat is a writ of p o sse ssio n ? ....................................... 26
147. W hat is a provisional rem edy?...................................... 27
148. W hat is a prelim inary a tta c h m e n t? ............................ 27
149. W hat is a prelim inary in ju n c tio n ? ............................... 27
150. W hat is a prelim inary prohibitory in ju n c tio n ? ......... 27
151. W hat is a prelim inary m andatory injunction?.......... 27
152. W hat is a perm anent in ju n c tio n ? ................................ 28
153. W hat is a tem porary restraining o rd e r? ..................... 28
154. W hat is receivership?...................................................... 28
155. W hat is replevin?.............................................................. 28
156. W hat is support pendente lite?..................................... 28
157. W hat is seq u estratio n ?................................................... 29
158. W hat is a special civil action?....................................... 29
159. W hat is in terp lead er?...................................................... 29
160. W hat is declaratory relief?............................................. 29
161. W hat is reform ation of in stru m e n t? ............................ 30
162. W hat is quieting of title ? ................................................ 30
163. W hat is a writ of certiorari?............................................ 30
164. W hat is a petition for certiorari?.................................. 30
165. W hat is th e m eaning of “w ithout jurisdiction”? ....... 31
166. W hat is excess of ju risd ic tio n ? ..................................... 31
167. W hat is grave ab u se of d isc re tio n ? ............................. 31
168. W hat is p ro h ib itio n ? ....................................................... 31
169. W hat is m andam us?........................................................ 32
170. W hat is quo warranto?..................................................... 32
171. W hat is expropriation/em inent d o m a in ? ................... 32
172. W hat is foreclosure of m ortgage?................................. 33
173. W hat is p a rtitio n ? ............................................................ 33
174. W hat is ejectm ent?........................................................... 33
175. W hat is a n accion interdictaT?....................................... 33
176. W hat is a n accion publiciana?...................................... 33
177. W hat is an accion reinvindicatoria?............................. 33
178. W hat is forcible e n tr y ? ................................................... 34
179. W hat is unlaw ful d e ta in e r? ........................................... 34
180. W hat is c o n te m p t? ........................................................... 34
181. W hat is contem pt of c o u rt? ........................................... 34
182. W hat is a writ of Kalikasan?.......................................... 35
183. W hat is continuing m andam us?.................................. 35
184. W hat is adverse claim ?................................................... 35
185. Who is a n adverse c la im a n t? ......................................... 35
186. W hat is Alternative D ispute R esolution?.................... 36
187. W hat is DNA evidence?.................................................. 36
188. W hat is a n alternate trial?............................................. 36
189. W hat is a face-to-face tria l? ........................................... 36

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H. DOCTRINES, RULES AND PRINCIPLES IN
CIVIL PROCEDURE
1. W hat is the Doctrine of Operative F a c t? ...................... 36
2. W hat is the Doctrine of C om passionate J u s tic e ? ...... 37
3. W hat is “Residual Pow er/Jurisdiction”
of the C ourt?................................................................. 38
4. W hat is the “Doctrine of Non-Interference” or
“Doctrine of Judicial Stability”? ............................... 38
5. W hat is the Doctrine of Stale D em ands or Laches?... 38
6. W hat is the Doctrine of “Estoppel By Laches” or
“Equitable Estoppel”? ................................................. 38
7. W hat is the Doctrine of Agency by Estoppel or
Doctrine of Holding O u t?........................................... 39
8. W hat is the Doctrine of Prim ary J u ris d ic tio n ? ........... 39
9. W hat is th e Doctrine of H ierarchy of C ourts?.............. 39
10. W hat is th e Doctrine of T ranscendental
Im portance?.................................................................. 39
11. W hat is the Doctrine of Continuing Jurisdiction
or Adherence to Ju risd ictio n ?.................................. 39
12. W hat is the Doctrine of Judicial D eference?............... 40
13. W hat is the Doctrine of Ancillary Ju risd ic tio n ? .......... 40
14. W hat is Clean H ands or Dirty H ands D octrine?......... 40
15. W hat is Totality R ule?....................................................... 40
16. W hat is the Doctrine of E xhaustion of
Adm inistrative R em edies?......................................... 40
17. W hat is the Doctrine of A bstention?............................. 41
18. W hat is an O m nibus Motion R ule?................................ 41
19. W hat is Hypothetical Admission Rule or
“A ssum ption of T ru th Rule”? .................................... 41
20. W hat is Precautionary Principle?.................................... 41
21. W hat is the Doctrine of Election of R em edies?........... 41
22. W hat is the Doctrine of Exclusivity of V enue?............ 42
23. W hat is the “Doctrine of Party Autonomy”? ................. 42
24. W hat is the Principle of Com petence-Com petence?... 42
25. W hat is the Doctrine of Sep arab ility ?........................... 43
26. W hat is Deliberative Process Privilege
Inform ation R u le?....................................................... 43
27. W hat is “Sam e Evidence Test Rule”? ............................ 43
28. W hat is the Doctrine of Lis Pendens?............................ 44
29. W hat is Three-(3) Days Notice Rule?............................. 44
30. W hat is th e Doctrine of “Auter Action P endant”? ...... 44
31. W hat is Two-Dismissal R u le?.......................................... 45
32. W hat is th e Doctrine of *Non-Prosequitur*?................. 45
33. W hat is “Implied Admission Rule”? ................................ 45
34. W hat is th e Principle of N on-Suited?............................ 45
35. W hat is One Day One W itness Rule? ........................... 46
36. W hat is Most Im portant W itness Rule?......................... 46
37. W hat is th e Viatoiy Rights of the W itness R u le ? ....... 46

XV
 38. W hat is the Doctrine of Im m utability of J u d g m e n t... 46
39. W hat is the Doctrine of Res Judicata?.......................... 47
40. W hat is the Principle of Conclusiveness
of Ju d g m e n t? ................................................................ 47
41. W hat is th e Principle of Law of the C a s e ? .................... 47
42. W hat is the Doctrine of Stare Decisis or Adherence
to Judicial Precedents? ............................................ 47
43. W hat is the Doctrine of Preclusion of Claim or
B arred By Prior J u d g m e n t? ...................................... 48
44. W hat is the Doctrine of Preclusion of Issues
or Collateral E stoppel?............................................... 48
45. W hat is th e Doctrine of C onstant Ju risp ru d en ce? .... 48
46. W hat is “Second Motion for New Trial Rule”? .............. 48
47. W hat is Single Motion Rule?............................................ 49
48. W hat is “Berry” Rule?........................................................ 49
49. W hat is “Neypes Doctrine” or “Fresh Period Rule”? ... 49
50. W hat is the Doctrine of Vicarious A ppeal?................... 49
51. W hat is “Lord Coke’s Doctrine”? ..................................... 50
52. W hat is the Principle of Prior or Contem poraneous
Ju risd ictio n ?................................................................. 50
53. W hat is th e Doctrine of the “Strong Arm
of Equity”? .................................................................... 50
54. W hat is Vera D octrine?...................................................... 51
55. W hat is “M aterial D ates Rule”? ....................................... 51
56. W hat is th e “Principle of Jus Regalia”? ......................... 51
57. W hat is the Doctrine of C ontinuing Public U s e ? ....... 51
58. W hat is th e Principle of Judicial C o u rte sy ? ................ 52
59. W hat is Confidential Inform ation R ule?....................... 52
60. W hat is th e principle of standing beyond
n a tu ra l and juridical p e rs o n s ? ................................ 52
61. W hat is Slip Rule?.............................................................. 53
62. W hat is “H arm less E rror Rule” or
“English Exchequer Rule”? ....................................... 53
63. W hat is th e rule on presum ptive service of notice
of court settin g ?........................................................... 54
64. W hat is B ursting Bubble Theory
(Thygorean D octrine)?................................................ 54
65. W hat is th e Principle of Liberal In te rp re ta tio n s? ....... 54
66. W hat is the Principle of Stare D ecisis?......................... 54
67. W hat is the Doctrine of Law of the C ase?..................... 55
m. MOTU PROPRIO ORDERS OR ACTIONS OF THE COURT
A. Under th e R oles on Civil Procedure, as am ended
1) Sec. 6, Rule 2. M isjoinder of C auses of Action .... 55
2) Sec. 3(c), Rule 7. Signature and A d d re ss.............. 56
3) Sec. 11, Rule 11. M isjoinder and
Non-joinder of Parties.......................................... 57
4) Sec. 12, Rule 8. Striking O ut of Pleading or
M atter Contained T h e re in ................................. 57
5) Sec. 1, Rule 9. Motu Proprio D ism issa l................ 58
6) Sec. 4, Rule 10. Form al A m endm ents.................... 59

xvi
 7) Sec. 12(c), Rule 8. Affirmative D efenses................ 59
8) Sec. 3, Rule 17. Dismissed Due to the Fault
of the Plaintiff....................................................... 60
9) Sec. 2, Rule 32. Reference Ordered on M otion.... 61
10) Sec. 7, Rule 41. Approved of the
Record on A ppeal................................................ 61
11) Sec. 13, Rule 41. Dismissed of Appeed................... 62
12) Sec. 6, Rule 44. Dispensing with
Complete R ecord.................................................. 63
13) Sec. 5, Rule 45. Dismissal or Denialof Petition .. 63
14) Sec. 5, Rule 46. Action by th e C ourt...................... 64
15) Sec. 5, Rule 47. Action by the C ourt...................... 65
16) Sec. 1, Rule 49. Oral A rgum ent.............................. 65
17) Sec. 1, Rule 50. Ground for Dismissal
of Appeal................................................................ 66
18) Sec. 2, Rule 50. Dismissal of Im proper Appeal
to the Court of Appeals....................................... 67
19) Sec. 5, Rule 56. G rounds for Dismissal of
Appeal to the Suprem e C o u rt........................... 67
20) Sec. 8, Rule 59. Term ination of Receivership...... 68
21) Sec. 5, Rule 61. Enforcem ent Order in
Support Pendente Lite........................................ 69
22) Sec. 5, Rule 63. Court Action Discretionary
in Declaratory Relief............................................ 69
23) Sec. 6, Rule 64. O rder to Com m ent-Dism issal
of P e titio n .............................................................. 70
24) Sec. 8, Rule 65. Proceeding after
Comment is Filed................................................ 71
25) Sec. 7, Rule 70. Effect of Failure to A nsw er......... 71
26) Sec. 4, Rule 71. How Proceedings Com m enced... 72
B. Motu Proprio O rders/Action o f th e Court under Special
Rules:
1) Rules on Sum m aiy Procedure................................. 73
2) Rules of Procedure on Environm ental Cases
(A.M. No. 09-6-6-8-SC)....................................... 74
3) Rules on DNA Evidence......................... 77
4) Rules on Exam ination of Child W itness................ 78
5) Rules on Writ of Amparo (A.M. No. 07-0-12-SC).. 81
6) 2016 Rules on Small Claims C a s e s ....................... 84

CHAPTERn
CONSTITUTIONAL PROVI8ION8 RELATIVE TO
CIVIL PROCEDURE
A. C onstitutional Provisions
1. Right to Due Process of Law.......................................... 85
2. Right to Equal Protection before the L aw s.................. 87
3. Right to Em inent Dom ain................................................ 88
4. Right to Free Access to C ourts and
Legal A ssistance.......................................................... 90

xvii
 5. Right to Speedy Disposition of C a se s............................ 91
6. Limitation on the Power of the
Congress to E nact Laws............................................. 93
7. Suprem e C ourt sitting a s Presidential
Electoral T ribunal........................................................ 94
8. Review Proclam ation of M artial Law and
Suspension of the Privilege of H abeas Corpus. ... 94
9. Expanded Definition of Judicial Power
(2007 Bar Exam ination)............................................. 95
10. Power of th e Congress to Prescribe Ju risdiction
of Various C ourts......................................................... 97
11. Cases Decided by th e Suprem e Court En B anc.......... 98
12. Original Ju risdiction of the Suprem e C ourt................. 98
13. Review a n d Appellate Ju risd ictio n of the
Suprem e C ourt............................................................. 99
14. Rule M aking Power of the Suprem e C ourt................... 101
15. C onstitutional Requirem ent of a Decision or
Final O rd e r................................................................... 105
16. Review of the Decision or Final O rder of the
C onstitutional Com m ission....................................... 107
17. Transitory Provision: Power to Prom ulgate Rules
of Procedure S hared by th e Suprem e Court
an d th e C ongress......................................................... 108

CHAPTER HI
GENERAL PRINCIPLES IN REMEDIAL LAW

I. PROCEDURAL LAW8 AND JUDICIAL COURTS

A. Basic Concept
1. Procedural Law............................................................. 109
2. Power to Prom ulgate Procedural R ules.................. 112
3. Application of Procedural Laws................................ 113
4. Judicial Power a n d the C ourts Exercising It........ 114
5. T ribunals w hich are not Part
of Judicial System ................................................ 115
H. JURISDICTION IN GENERAL
A. Basic C oncept..................................................................... 117
B. C lassifications o f Ju risd iction
1. General ju risd ictio n .................................................... 119
2. Special or Limited........................................................ 120
3. Original jurisd ictio n .................................................... 121
4. Exclusive jurisd ictio n ................................................. 122
5. Exclusive original jurisd ictio n .................................. 122
6. Appellate jurisd ictio n .................................................. 124
7. Delegated ju risdiction................................................. 125
8. Territorial jurisd ictio n ................................................ 126
9. C oncurren t/co o rd in ate/co n flu en t jurisdiction.... 126

xviii
 C. D octrines and Principles on Ju risd iction
1. R esidual Power or Ju risd ictio n of th e C ourt......... 126
2. Doctrine of Prim ary Ju risd ictio n .............................. 127
3. Doctrine of Non-Interference or “Doctrine
of Judicial Stability”............................................. 129
4. Doctrine of Hierarchy of C ourts
(Bar Exam ination 2017)...................................... 130
5. Estoppel by Laches...................................................... 131
6. Doctrine of E xhaustion of Adm inistrative
Rem edies................................................................. 132
D. Paym ent o f Filing or D ocket F ees is
J u r isd ic tio n a l............................................................. 133
B. Manner o f Acquiring Ju risd iction by th e Court__ 136
1. Ju risd ictio n Over th e Subject M atter...................... 135
2. Ju risdiction Over th e P arties.................................... 146
3. Ju risd ictio n Over the Issue of the C ase................. 149
4. Ju risd ictio n Over the C ase........................................ 151
5. Ju risd ictio n Over the Res.......................................... 151
in . JURISDICTION OF VARIOUS COURTS
A. Original jurisdiction
1. Suprem e C ourt............................................................. 152
2. Court of Appeals.......................................................... 153
3. Regional Trial C ourt.................................................... 155
4. S h ari’a h District C ourt............................................... 156
B. E xclusive J u risd iction .................................................... 160
C. E xclusive Original Ju risd iction
1. Suprem e C ourt............................................................ 160
2. Court of Appeals.......................................................... 160
3. Sandiganbayan............................................................. 163
4. C ourt of Tax A ppeals.................................................. 166
5. Regional Trial C ourt (Bar E xam inations 2017,
2016 and 2010)..................................................... 167
6. M etropolitan Trial C ourt/M unicipal/C ircuit
Trial Court (Bar Exam inations 2017
an d 2010)............................................................... 184
7. S hari'ah Circuit C o u rt................................................ 194
D. Special J u risd iction ......................................................... 195
1. Regional Trial C ourt .................................................. 195
2. M etropolitan Trial Court, M unicipal/C ircuit
Trial C o u rt............................................................. 198
E. D elegated Ju risd iction (Bar Exam ination 2 0 1 4 ) ... 199
1. M etropolitan Trial Court, M unicipal/C ircuit
Trial Court ............................................................ 199
 F. Appellate J u risd iction ..................................................... 202
0 . Concurrent J u risd iction ................................................. 214
IV. BASIC CONCEPT ON VENUE............................................... 221

CHAPTER IV
STAGES OF CIVIL PROCEEDINGS AND REMEDIES

I. 8TAGES OF CIVIL PROCEEDINGS

1. Flow C hart in O rdinary Civil Action............................... 224
II. Flow C hart in Sum m ary Procedure................................ 225
III. Flow C h art in Small Claim s C ases................................. 226

H. SUMMARY OF REMEDIES PER STAGE IN CIVIL

PROCEEDINGS
1. Remedies or Proceedings before the Com m encem ent
of Civil Action................................................................ 227
2. Remedies Upon the C om m encem ent of the A ction.... 227
3. Remedies After Service of Sum m ons b u t Before
filing of Responsive Pleading..................................... 228
4. Remedies After Service of Sum m ons.............................. 238
5. Remedies After Service of the A nsw er........................... 229
6. Remedies After Service of the Reply or
Third-party C o m p lain t............................................... 230
7. Remedies D uring Pre-trial................................................ 230
8. Remedies Before Trial........................................................ 231
9. Remedies D uring Trial (Bar Exam ination 2013).......... 231
10. Remedies Before Finality of Ju d g m e n t/F in a l Order. . 232
11. Remedies After Finality of Ju d g m e n t............................. 232
12. Remedies D uring Execution............................................. 232

CHAPTER V
PROCEEDINGS OR REMEDIES BEFORE THE
COMMENCEMENT OF A CIVIL ACTION

I. BARANGAY LAW (R.A. 7160)

1. Prim ary Objective of B arangay L aw ............................... 234
2. General Rule on Referral of the Case to the Lupon
(Bar Exam ination 2 0 1 6 )............................................ 235
3. Exceptions to the Referral of the Case to the Lupon.. 239
4. Venue of B arangay Proceedings...................................... 243
5. Procedure for Amicable S ettlem ent................................ 246
6. Appearance of the Parties in P e rso n .............................. 251
7. Effect of Amicable Settlem ent and
A rbitration A w ard ....................................................... 251

xx
 8. Law on B arangay in Relation to th e Rules
on Small Claims C ases............................................... 255
9. Execution of Amicable Settlem ent or
Arbitration A w ard ....................................................... 256
10. Repudiation of Amicable S ettlem en t............................. 258
11. Law on B arangay Conciliation in relation to
Affirmative Defenses in the A nsw er....................... 261
12. D ism issal of the Case for Non-referral to the
B arangay for Conciliation in relation to the
Rules on Sum m ary P ro ced u re................................. 262
13. Motu Proprio Dismissal of the Case for Non-referral
to the B arangay for Conciliation in relation
to the Rules on Sum m ary P ro c ed u re..................... 264
S a m p le Form No. 1: B a ra n g a y C e rtific a te
To File A c tio n ................................................................... 265
II. ADVERSE CLAIM
A. Basic Concept:
1. Filing of Adverse Claim ............................................... 268
2. Requirem ents for the Registration and
Cancellation of Adverse C laim ................................. 271
S a m p le L egal Form No. 1: A ffid a v it o f A d verse C la im .... 276

m . VOLUNTARY ARBITRATION (R.A. No. 8 7 6 )/ALTERNATIVE

DISPUTE RESOLUTION (R.A. No. 9285)
1. Persons a n d M atters of A rbitration................................ 283
2. Form of Arbitration A greem ent....................................... 286
3. Prelim inary Procedure....................................................... 287
4. H earing by C o u rt................................................................ 290
5. Stay of Civil Action............................................................. 292
6. Referral to A rbitration....................................................... 293
7. Interpretation of the A ct................................................... 296
8. Place of A rb itratio n ............................................................ 299
9. Court to Dism iss the Case Involving
a C onstruction D isp u te ............................................. 300
10. Effect of D eath of the P a r ty ............................................. 302
IV. DEPOSITION BEFORE ACTION
1. Deposition Before A ction................................................. 304
2. C ontents of P e titio n ........................................................... 305
V. DNA EVIDENCE RULE/TESTING
1. Application of the Rules on Evidence............................ 306
2. Definition of T e rm s ............................................................ 307
3. Application for DNA T e stin g ............................................ 309

xxi
 CHAPTER VI
GENERAL PROVISIONS

A. Basic Concept:
1. Title of th e R ules................................................................. 312
2. Application of the R u le s ................................................... 313
3. Case Governed by the R ules............................................ 315
4. Case Not Directly Governed by th e R u le s .................... 321
5. Com m encem ent of Civil A ction....................................... 329
6. C onstruction of the R u le s ................................................ 332

CHAPTER VH
CAU8E OP ACTION (RULE 2)

1. Basis of Civil A ction........................................................... 340

2. C ause of Action D efined................................................... 340
3. One Suit for a Single C ause of A ction........................... 346
4. Splitting of C ause of Action ............................................ 346
5. Jo in d er of C auses of Action
(Bar Exam inations 2017, 2015 and 2 0 1 2 )........... 351
6. Misjoinder of C auses of A ction....................... 355

CHAPTER VH!
PARTIES IN GENERAL (RULE 3)

1. Parties in Civil of A ction................................................... 357

2. Real P a rtie s-in -In te rest..................................................... 360
3. Representatives as P arties................................................ 374
4. Spouse a s P arties................................................................ 376
5. Minor or Incom petent P e rs o n s ....................................... 377
6. Permissive Jo in d er of Parties
(Bar E xam inations 2017, 2016 an d 2 0 1 0 )........... 377
7. Com pulsory Jo in d er of Indispensable Parties
(Bar Exam ination 2 0 1 9 )............................................ 378
8. Necessary Party (Bar Exam ination 2019)..................... 384
9. Non-joinder of N ecessary Parties to be Pleaded.......... 384
10. Unwilling Co-Plaintiff........................................................ 385
11. M isjoinder and N on-Joinder of P arties.......................... 386
12. Class S u it............................................................................. 388
13. Alternative D efendants...................................................... 393
14. Unknown Identity or Name of D e fe n d an ts................... 393
15. Entity W ithout Ju ridical Personality a s D e fe n d a n t... 394
16. D eath of a Party an d Duty of the C ounsel.................... 395
17. D eath or Separation of a Party who is a
Public O fficer................................................................ 400
18. Incom petency or Incapacity of a P a rty .......................... 401
19. Transfer of In te re s t............................................................ 402
20. Action on C ontractual Money C la im s........................... 404

xxii
 21. Indigent Party (Bar Exam ination 2 0 1 6 )........................ 410
22. Notice to Solicitor G eneral................................................ 417

CHAPTER IX
VENUE IN GENERAL (RULE 4)

A. Basic C o n cep ts......................................................................... 419

B. Real A ctions and Real Properties under th e Law
1. Venue in Real Actions (Bar Exam inations 2017
and 2 0 1 2 )...................................................................... 421
C. Personal A ction and Personal Properties
1. Venue in Personal Actions (Bar Exam inations 2015
a n d 2 0 1 4 )...................................................................... 428
2. Venue of Actions Against Non-Resident ...................... 434
3. Non-Applicability of the Rules on V enue...................... 435
4. Rules on Venue u n d e r Special Rules of Procedure ... 443

CHAPTER X
UNIFORM PROCEDURE IN TRIAL COURTS
(RULE 5)

1. Uniform P ro c e d u re ............................................................ 450

2. M eaning of the Term s ...................................................... 450

PART II

CHAPTER I
I. PRELIMINARY CONSIDERATION
A. Basic C on cept................................................................... 452

CHAPTER n
PLEADINGS

I. RULE 6: KINDS OF PLEADINGS

1. Definition of P lead in g s..................................................... 454
2. Pleadings Allowed u n d e r the R ules................................ 455
3. Com plaint Defined ............................................................ 456
4. Answer Defined .................................................................. 457
5. Kinds of Defenses ............................................................. 458
6. C ounterclaim Defined (Bar Exam ination 2 0 1 0 ) ......... 460
7. Com pulsory Counterclaim D e fin e d ............................... 462
8. Cross-claim Defined ......................................................... 470
9. C ounter-C ounterclaim s a n d C ounter-C ross-C laim s 472
10. Reply .................................................................................. 473

xxiii
S a m p le Form No. L R e p l y .......................................................... 474
11. Third, (Fourth, etc.)-Party C o m p lain t........................... 476
S a m p le Form No. 2: M otion fo r Leave o f C ourt
to File T h ird -p a rty C o m p la in t (Sec. 11. R u le 6) .. 478
S a m p le Form No. 3: th ir d -p a r ty C o m p la in t......................... 480
12. Bringing of New Parties ................................................... 483
13. Answer to Third (Fourth, etc.)-Party Com plaint ........ 486
14. O ther Pleadings u n d e r th e Rules .................................. 487

CHAPTER III
RULE 7: PARTS AND CONTENTS OF A PLEADING

1. C a p tio n ................................................................................. 493

Sam ple Form No. 1; Caption of.the P le a d in g ..................... 494

2. The Body ............................................................................. 494

Sam ple Form No. 2: B ody o f th e C om plaint/Pleading .... 499
3. Signature and A d d re s s ..................................................... 500
S am ple Form No. 3; Sign atu re an d A d d r e s s ...................... 504
4. Verification (Bar Exam ination 2016 and 2013) .......... 504
Sam ple Form No. 4; Verification ............................................ 516
5. Certification Against Forum Shopping
(Bar Exam inations 2016 and 2013) ................ 517
S a m p le Form No. 5: C e rtific a tio n A g a in st
Forum S h oppin g ............................................................. 545
6. Additional C ontents of a P le a d in g ................................. 546
7. O ther Additional Requirem ents in the Pleading ........ 549

CHAPTER IV
RULE 8: MANNER OF MAKING ALLEGATIONS
IN THE PLEADINGS

1. M aking Allegation in General

(Bar Exam ination 2013) .......................................... 554
2. Alternative C auses of Action or D e fe n se s.................... 555
3. Conditions Precedent ....................................................... 556
4. Capacity .............................................................................. 556
5. Fraud, M istake, Condition of the Mind ........................ 557
6. Ju d g m en t ............................................................................ 558

xxiv
 7. Action or Defense Based on D ocum ent
(Bar Exam ination 2017) ........................................... 559
S a m p le Form No. 1: M anner o f M akin g A lle g a tio n s
B aaed on a .D o c u m e n t................................................... 561
8. How to C ontest a n Actionable D ocum ent..................... 565
9. Official Docum ent or Act ................................................. 567
10. Specific Denial ................................................................... 568
11. Allegations not Specifically Denied Deemed
Admitted ....................................................................... 569
12. Affirmative Defenses ........................................................ 570
13. Striking O ut of Pleading or M atter Contained
Therein ......................................................................... 590

CHAPTER V
RULE 9: EFFECT OF FAILURE TO PLEAD

1. Defenses an d Objections Not Pleaded ......................... 592

2. Com pulsory Counterclaim or Cross-claim
Not Set Up B a r r e d ...................................................... 598
3. O rder of Default and Ju d g m e n t by D e fa u lt................ 599
4. O rder of default in an action for Interpleader
(Rule 6 2 )........................................................................ 602
S a m p le Farm N o .. 1: M otionto^D eclare. D efen d a n t
in D efa u lt (See. 3, R u le 9 ) ............................................ 603
5. Remedy in case of a party in d e fa u lt............................ 605
S a m p le Farm No. 2; M otion to L ift O rder of D efau lt
(Sec. 3. R u le 9) ................................................................. 609
6. Rule on default u n d e r the Sum m ary Procedure ........ 614
7. Rule on default u n d e r the Rules on
Small Claims C ases .................................................. 615
8. Rule on default u n d e r the Environm ental C a s e s ........ 615
9. Possible rem edies in case of judgm ent by default .... 619
S a m p le Form No. 3: M otion to S e t A sid e J u d g m en t
B y D efa u lt (Sec. 3 . R u le 9 ) ........................................... 622

CHAPTER VI
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

1. A m endm ents in G e n e ra l.................................................. 627

2. A m endm ents as a M atter of Right ................................ 629
S a m p le Form No. 1: M otion to A m en d C om plain t
(Sec. 2 . R u le IQ) ............................................................... 632

XXV
 3. A m endm ents by Leave of Court ..................................... 634
S a m p le Form No. 2: M otion For Leave o f C ourt to
A m en d C o m p la in t (Sec. 3. R u le 1 0 ) .......................... 638
4. Formal A m e n d m e n ts........................................................ 640
5. No Am endm ent N ecessary to Conform to
or Authorize Presentation of Evidence
(Bar Exam ination 2 0 1 3 )............................................ 640
6. Supplem ental Pleadings .................................................. 641
7. Filing of Amended P le a d in g s........................................... 645
8. Effect of Amended Pleadings .......................................... 646

CHAPTER VO
RULE 11: WHEN TO PILE RE8PON8IVE PLEADINQ8

1. Answer to the C o m p la in t................................................ 648

S a m p le Form No. 1: A n aw er W ith C ou n terclaim
(Sec. 4. R u le 6 ) .................................................................. 655
2. Answer of a D efendant Foreign Private
Ju ridical E n tity ........................................................... 660
3. Answer to Amended Com plaint ..................................... 660
4. Answer to Counterclaim or Cross-claim ..................... 661
5. Answer to Third (Fourth, etc.(-Party Com plaint ........ 662
6. Filing of Reply ..................................................................... 662
7. Answer to Supplem ental Com plaint ............................ 663
8. Existing C ounterclaim or Cross-claim ......................... 663
9. C ounterclaim or Cross-claim Arising After Answer .. 664
10. Om itted Counterclaim or Cross-claim ......................... 665
11. Extension of Time to File Answer ................................. 665
S a m p le Form No. 2: M otion Far E xten sion o f
Tim e to F ile A naw er/R eeponaive P leadin g
(Sec. 11. R u le 1 1 )............................................................. 669

CHAPTER VIII
RULE 12: BILL OP PARTICULARS

1. W hen to Apply and Purpose ........................................... 672

2. Action by the C o u rt............................................................ 677
3. Com pliance with O rd e r..................................................... 678
4. Effect of Non-Compliance (Bar Exam ination 2018)... 678
5. Stay of Period to File Responsive P leading................... 679
6. Bill Part of a Pleading........................................................ 680
S a m p le Form No. 1: M otion For B ill o f P a rtic u la re
(Rule 12) ................................................ 680

xxvi
 CHAPTER IX
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

1. Coverage............................................................................... 683
2. Definition of Filing an d Service....................................... 683
3. M anner of Filing.................................................................. 686
4. Papers Required to be Filed and Served....................... 689
5. Modes of Service................................................................. 690
6. Personal Service.................................................................. 691
7. Service by Mail..................................................................... 693
8. S u b stitu ted Service............................................................ 695
9. Service by Electronic M eans a n d F acsim ile................ 695
10. Presum ptive Service .......................................................... 696
11. Change of Electronic Mail A ddress or
Facsimile N um ber....................................................... 697
12. Electronic Mail and Facsimile Subject and
Title of Pleadings, etc.................................................. 698
13. Service of Ju d g m en ts, Final O rders or Resolutions .. 699
14. Conventional Service or Filing of Orders, Pleadings
and O ther D o c u m e n ts ............................................... 701
15. C om pleteness of S e rv ic e .................................................. 702
16. Proof of F ilin g ...................................................................... 704
17. Proof of Service .................................................................. 709
18. Court Issued O rders an d O ther D ocum ents .............. 711
19. Notice of Lis Pendens ....................................................... 712
Sa m p le Form Ho. 1: Notice o f Lis P en den s
(Sec. 14. R ule 131............................................................. 720
20. Sam ple Legal Form ............................................................. 721
S a m p le Form No. 2: E x p la n a tio n o f S ervice o f
Pleading a n d O th er PapersJSec, I I . R u le 1 3 } ..... 722

S a m p le Form No. 3: A ffid a v it o f S ervice o f P lea d in g 722

CHAPTER X
RULE 14: SUMMONS

A. Basic Concept:
1. Clerk to Issue Sum m ons ................................................. 728
2. C ontents of S u m m o n s ...................................................... 728
S a m p le Form No. 1: S um m ons
(Secs. 1 a n d 2 . R u le 14) ................................................ 730
3. By Whom S e rv e d ................................................................ 731
4. Validity of Sum m ons a n d Issuance of
Alias Sum m ons ........................................................... 733

xxvii
 5. Service in Person the Defendant (Bar
Exam inations 2017, 2016, a n d 2013 on
Service of Sum m ons) ................................................. 734
6. S ub stitu ted Service ........................................................... 737
7. Service upon Entity W ithout Juridical
Personality ................................................................... 742
8. Service Upon Prisoners ................................................... 743
9. Service C onsistent w ith International
Conventions ................................................................. 743
10. Service Upon Minors an d Incom petents ..................... 744
11. Service to Spouses ............................................................ 745
12. Service u p o n Domestic Private Ju ridical Entity ....... 745
13. Duty of Counsel of R e c o rd ............................................... 747
14. Service upon Foreign Private E n tity ............................. 748
15. Service upon Public C o rp o ra tio n s................................. 751
16. Service upon Defendant whose Identity or
W hereabouts Unknown ............................................ 752
17. Extraterritorial Service ..................................................... 754
S a m p le Form No. 2: M otion f o r L eave to Serve Sum m on*
b y P u b lica tio n S ervice (Sec. 1 7. R u le 1 4 ) ............... 758
18. Residents Tem porarily O ut of the Philippines ........... 759
19. Leave of C o u r t..................................................................... 761
20. R eturn .................................................................................. 761
21. Proof Service ....................................................................... 764
22. Proof Service by Publication ........................................... 765
23. Voluntary A ppearance ...................................................... 766

CHAPTER XI
RULE 15: MOTIONS

1. Motion Defined (Bar Exam ination 2006)...................... 771

2. Motion M ust be in W ritin g ............................................... 772
3. C ontents of M otion............................................................ 773
4. Non-litigious M o tio n .......................................................... 774
5. Litigious Motions ............................................................... 775
6. Notice of Hearing on Litigious Motions —
D iscretionary .............................................................. 777
7. Proof of Service Necessary ............................................... 780
8. Motion Day ......................................................................... 782
9. O m nibus Motion (Bar Exam inations 2016
a n d 2010) ..................................................................... 783
10. Motion for Leave ................................................................ 785
11. Form ....................................................................................... 785
12. Prohibited M otions/M otion to Dism iss ........................ 786
f g r m No, 1; Ufotiow to Diwmiss
(Sec, 1, R u le -1 6 )................................................................ 794

xxviii
 CHAPTER XII
RULE 16: MOTION TO DISMISS AND DISMISSAL
OF ACTION BY THE PLAINTIFF

I. RULE 16: MOTION TO DISM ISS.......................................... 805

II. RULE 17: DISMISSAL OF ACTIONS.................................. 805
1. D ism issal upon Notice of th e P la in tiff.......................... 805
S a m p le Form No. 1; N otice o f Dism is s a l
(Sec. 1. R u le 1 7 }....................................................................... 806
2. D ism issal Upon Motion of the P lain tiff......................... 808
S a m n le Form No. 2 2 M otion to D ism iss
fSec. 2. R ule 1 7 }....................................................................... 809
3. D ism issal Due to the Fault of the Plaintiff................... 811
4. D ism issal of Counterclaim , Cross-claim or
Third-party C o m p lain t............................................... 815

CHAPTER XIII
RULE 18: PRE-TRIAL CONFERENCE

1. Pre-trial w hen C o n d u c te d ............................................... 817

2. N ature an d Purpose of Pre-trial...................................... 821
3. D eterm ination of Issues during Pre-trial...................... 824
4. Availability of Motion for Ju d g m e n t on
the Pleadings or Sum m ary J u d g m e n t.................... 826
5. Notice of P re-trial................................................................ 827
S a m p le Form JioJ.J3;Jli o tic e Q fJ yre iIria L
(Sec. 3. R u le I S f ....................................................................... 829
6. Appearance of Parties ...................................................... 831
S a m p le Form No. 2: S p e c ia l P ow er
o f A tto rn e y (Sec. 4 . R u le 18)................................................ 833

S a m p le Form No. 3: B o a rd R eso lu tio n a n d S e c r e ta r y ’s

C e r tific a te .................................................................................. 834

S a m p le Form No. 4: S e c r e ta r y ’s C e r tif ic a te ....................... 836

7. Effect of Failure to A p p e a r............................................... 837
8. Pre-trial B r ie f ...................................................................... 842
S a m p le Form No. S: P re-T rial B r ie f (Sec. 6. R u le 1 8 ) ...... 846
9. Pre-Trial O r d e r ................................................................... 847

xxix
S a m p le Form No. 6: Pre-T rial O rder (Sec. 7. Rule 18)...... 850
10. Court Annexed M ediation................................................. 853
11. Possibility of Amicable Settlem ent-Court-M ediation.. 853
12. Judicial D ispute Resolution (JDR)................................. 855
13. Ju d g m e n t after P re-trial.................................................... 856

CHAPTER XIV
RULE 19: INTERVENTION

1. Who May In te rv e n e ? .......................................................... 858

S a m p le Form No. 1: M otion f o r L eave o f C ourt
to F ile In terven tio n (Sec. 1. R u le 1 9 ) ............................... 864
2. Time to Intervene ............................................................... 866
3. Pleadings in In te rv en tio n ................................................. 869
4. Answer to the C om plaint-in-Intervention.................... 870
S a m p le Form No. 2: M otion fo r Leave o f C ourt
to F ile In terven tio n (Sec. 1. R u le 1 9 ) ............................... 873

CHAPTER XV
CALENDAR OP CASES, SUBPOENA AND
COMPUTATION OF TIMEI.*

I. RULE 20: CALENDAR OF CASES

1. C alendar of Cases ............................................................. 876
2. Assignm ent of Cases ........................................................ 877
H. RULE 21: SUBPOENA
1. Subpoena an d Subpoena Duces Tecum ..................... 877
2. By Whom Subpoena Is Issued ....................................... 878
3. Form s and C ontents of Subpoena ................................ 879
4. Q uashing of S u bpoena...................................................... 880
5. Subpoena for Deposition ................................................. 881
6. Service of S u b p o e n a .......................................................... 882
7. Personal Appearance in Court ....................................... 883
8. Compelling A ttendance .................................................... 883
9. C o n te m p t............................................................................. 884
10. Exceptions ........................................................................... 885
III. RULE 22: COMPUTATION OF TIME
1. How to Com pute T im e?.................................................... 886
2. Effect of Interruption ....................................................... 887

xxx
 CHAPTER XVI
MODES OF DISCOVERY AND SANCTIONS IN CASE
OF REFUSAL (RULE8 23-29)

A. Basic C o n c e p t......................................................................... 889

I. RULE 23: DEPOSITION PENDING ACTIONS
A. Basic Concept.
1. Deposition Pending Action. W hen May Be
Taken? (Bar Exam ination 2 0 1 0 )................ 893
S a m p le F orm No. 1. Ex-Parte M otion to T ake D eposition
(Sec. 1. R u le 231..................................................................... 896
2. Scope of E x a m in a tio n ........................................ 898
3. Exam ination an d C ro ss-ex am in atio n ............ 899
4. Use of Deposition (Bar Exam ination) ............ 900
5. Effect of Substitution of Parties ...................... 904
6. Objections to Admissibility ............................... 905
7. Effect of Taking D ep o sitio n ............................... 905
8. Effect of Using D eposition................................. 906
9. Rebutting D ep o sitio n .......................................... 906
10. Persons Before Whom Deposition May Be
Taken W ithin th e Philippines.................. 907
11. Persons Before Whom Deposition May Be
T aken in Foreign C o u n trie s..................... 908
12. Com m ission or Letters Rogatory...................... 908
S a m p le Form No. 2: P e titio n f o r Ieeu an ce o f L etter*
R o g a to ry (Sec. 1 2 . R u le 2 3 ) ................................................. 911
13. Disqualification by I n te r e s t............................... 913
14. Stipulations Regarding Taking
of D eposition................................................ 914
15. Deposition by Oral Exam ination, Notice,
Time a n d Place............................................ 914
S a m p le Form No. 3: N otice to T a k e D epoeltlan
Upon O ral E x a m in a tio n (See. I S . R u le 2 3 ).................... 915
16. O rders for the Protection of
Parties an d D e p o n e n ts.............................. 917
17. Record of Exam ination; O ath; O bjections..... 920
S a m p le Form No. 4: R eco rd o f D ep o sitio n ............................ 921
18. Motion to T erm inate or Limit Exam ination ... 923
S a m p le Form No. 5: M otion to T erm in a te T akin g o f
D ep o sitio n (S e c. L 8.JtuIe.23)............................................... 925
19. Subm ission to W itness; Changing; Signing... 927
20. Certification an d Filing by Officer.................... 928

xxxi
 21. Notice of Filing...................................................... 929
22. F urnishing Copies................................................ 930
23. Failure to Attend of Party Giving Notice......... 930
24. Failure of Party Giving Notice
to Serve S u b p o e n a ..................................... 931
25. Deposition by W ritten Interrogatories............ 932
S a m p le Form No. 6: N otice to T ake D eposition
Upon W ritten In te rro g a to rie s............................................. 933
26. Officers to Take Responses and
Prepare R ecords.......................................... 934
27. Notice of Filing and F urnishing of C o p ies..... 935
28. O rders for the Protection of Parties
and D eponents............................................ 936
29. Effect of Errors and Irregularities in
the D eposition............................................. 937
II. RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
1. Deposition Before Action; Petition.................................. 940
2. C ontents of Petition............................................................ 940
S a m p le Form No. 1; V erified P e titio n to P e rp e tu a te
T estim o n y B efore A ctio n (Sec. 2 . R u le 2 4 )..................... 942
3. Notice an d Service.............................................................. 945
4. O rder a n d E xam ination..................................................... 945
5. Reference to C ourt.............................................................. 946
6. Use of Deposition................................................................ 946
7. Deposition Pending Appeal............................................... 947
UI. RULE 25: INTERROGATORIES TO PARTIES
1. Interrogatories to Parties; Service................................... 949
2. Answer to Interrogatories.................................................. 951
3. Objections to Interrogatories............................................ 952
4. N um ber to Interrogatories................................................ 952
5. Scope and Use of Interrogatories.................................... 953
6. Effect of Failure to Serve W ritten Interrogatories
(Bar Exam ination 2 0 1 6 )............................................ 953
IV. RULE 26: ADMISSION BY ADVERSE PARTY
1. Request for Admission (Bar Exam ination 2016)......... 956
S a m p le Form No. 1: R e q u e st f o r A d m issio n o f
D ocu m en ts o r M a te ria l F a cts (Rule 261................. 957 2345
2. Implied Adm ission.............................................................. 959
3. Effect of Adm ission:............................................................ 963
4. W ithdraw al................................................................... - ...... 963
5. Effect of Failure to File and Serve Request
for A dm ission................................................................ 964

xxxii
V. RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS
AND THINGS
1. Motion for Production or Inspection O rder.................. 965
Fo rm No. I; Mo tio n f o r P ro d u c tio n cltlcL
Inspection (Rule 2 7 } ................................................................ 971

VI. RULE 28: PHYSICAL AND MENTAL EXAMINATION OF

PERSON
1. W hen Exam ination May Be O rdered?............................ 974
S a m p le Form No. 1: M otion f o r P h y sic a l a n d
M ental E x a m in a tio n (Rule 28)............................................ 974
2. O rder of E xam ination........................................................ 976
3. Report of Findings.............................................................. 977
4. Waiver of Privilege............................................................... 978
VH.RULE 29: REFUSAL TO COMPLY WITH THE MODES OF
DISCOVERY
A. Basic Concept
1. Refusal to Answer....................................................... 979
2. C ontem pt of C ourt....................................................... 981
3. O ther C onsequences................................................... 982
4. Expenses on Refusedto Admit................................... 985
5. Failure of Peirty to Attend or Serve A nsw ers.......... 986
6. Expenses Against the Republic of
the Philippines...................................................... 988

CHAPTER XVII
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL,
TRIAL BY COMMISSIONER
AND DEMURRER TO EVIDENCEI.

I. RULE 30: TRIAL

A. Basic Concept
1. Kinds of Tried................................................................ 992
2. Schedule of T ria l......................................................... 997
3. A djournm ents a n d Postponem ents......................... 1000
4. Requisites of Motion to Postpone Trial Due to
Illness of Party or C ounsel................................. 1002
5. H earing Days and C alendar Call............................. 1003
6. O rder of Trial................................................................ 1004
S a m p le Form No. 1: M em orandum (Sec. 5. R u le 30)......... 1006
7. Oral Offer of Exhibits.................................................. 1008

xxxiii
S a m p le Form No. 2: O rder o f AtJmlmrinn n f E vidence....... 1021
8. Rule on Tender of Excluded Evidence.................... 1022
9. Agreed Statem ent of F acts........................................ 1025
10. Suspension of Actions............................................... 1026
11. Judge to Receive Evidence; Delegation
to Clerk of C ourt................................................ 1027
n. RULE 31: CONSOLIDATION OR SEVERANCE
1. Consolidation...................................................................... 1030
S a m p le Form No. 1: M otion fo r C on solidation o f T rial
(Sec. I , Rule 31)....................................................................... 1032
2. Separate T rials................................................................... 1034
III. RULE 32: TRIAL BY COMMISSIONER
1. Reference by C onsent........................................................ 1036
2. Reference Ordered on Motion.......................................... 1036
3. O rder of Reference; Powers of Com m issioner............. 1038
4. O ath of Commissioner....................................................... 1039
5. Proceedings Before the Com m issioner.......................... 1040
6. Failure of Parties to Appear Before the
Commissioner.............................................................. 1040
7. Refusal of W itness.............................................................. 1041
8. Com m issioner Shall Avoid Delays.................................. 1042
9. Report of Com m issioner................................................... 1042
10. Notice to Parties of the Filing of Report........................ 1043
11. Hearing Upon Report......................................................... 1044
12. Stipulations as to Findings.............................................. 1045
13. Com pensation of Com m issioner..................................... 1045
Sam ple Form No. 1; U otion fo r Trial b y Commissioner
(See. 1. Rule 331....................................................................... 1046

IV. RULE 33: DEMURRER TO EVIDENCE

A. Basic C oncept.................................................................... 1048
1. D em urrer to Evidence (Bar Exam ination 2013)... 1049
2. Action on D em urrer to Evidence............................. 1053
S a m p le Form No. 1: M otion f o r D em urrer to
E vidence (Sec. 1. R ule 33).................................................... 1054

xxxiv
 CHAPTER XVIII
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

I. RULE 34: JUDGMENT ON THE PLEADINGS

1. Ju d g m en t on the Pleadings (Bar Exam inations
2018, 2016, 2015 a n d 2010):................................... 1056
2. Action on the Motion for Ju d g m en t
on the Pleadings........................................................... 1057
S a m p le Form No. l i M otion f o r J u d g m en t on th e
P leadin g (Sec. 1. R ule 34). ................................................... 1060

II. RULE 35: SUMMARY JUDGMENT

A. Basic C oncept.................................................................... 1062
1. Sum m ary Ju d g m en t for Claim ant
(Bar Exam inations 2016 and 2 0 1 5 )................ 1065
2. Sum m ary Ju d g m en t for Defending Party.............. 1066
3. Motion and Proceedings Thereon............................ 1070
4. Case Not Fully Adjudicated on Motion................... 1076
5. Form of Affidavits and Supporting P apers............ 1077
6. Affidavits in Bad F aith................................................ 1078
S a m p le Form No. l i M otion f o r S u m m a ry J u d g m en t
(Rule 3Sf. .................................................................................. 1079

RULE 144: EFFECTIVENESS

1. Effectiveness and Coverage of Application................... 1082

APPENDIX A — A.M. No. 19-10-20-SC

(2019 PROPOSED AMENDMENTS TO THE 1997
RULES OF CIVIL PROCEDURE).......................................... 1084

XXXV
XXXVI
 PARTI
CHAPTER I

I. DEFINITION OF TERMS

1. Q: W hat is R em edial Law?

A: R em edial Law is that branch of law which prescribes
the method of enforcing the rights or obtaining redress for
their invasions. (Bustos us. Lucero, 81 Phil. 640)
2. Q: W hat is a R em edial S ta tu te ?
A: R em edial s ta tu te s refers to the statutes relating to
remedies or modes of procedure, which do not create new or
take away vested rights, but only operate in furtherance of
the remedy or confirmation of rights already existing, do not
come within the legal conception of a retrospective law, or the
general rule against the retrospective operation of statutes.
(Castro us. Sagales, 94 Phil. 208)

3. Q: W hat is Procedural Law?

A: “Procedural la w refers to the adjective law which
prescribes rules and forms of procedure in order that courts
may be able to administer justice. Procedural laws do not
come within the legal conception of a retroactive law, or
the general rule against the retroactive operation of statues
they may be given retroactive effect on actions pending and
undetermined at the time of their passage and this will not
violate any right of a person who may feel that he is adversely
affected, insomuch as there are no vested rights in rules of
procedure.” (Priscilla A lm a J o se us. Ramon C. Jauellana, et
al., G.R. No. 158239, J a n u a ry 25, 201 2 )

1
2 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4. Q: W hat is S u b stan tiv e Law?

A: It is a law which creates and defines substantive rights.
5. Q: W hat is a c o u rt?
A: A co u rt is a tribunal clothed with the power and authority
to entertain and resolve legal disputes between the parties to
carry out the dispensation of justice in accordance with law.
6. Q: W hat is a C o n stitu tio n al co u rt?
A: It is a court which is established by the Constitution.
7. Q: W hat is a s ta tu to ry c o u rt?
A: It is a court which is established by law.
8. Q: Who is a ju d g e?
A: A judge is a public officer who exercises the power of the
court in the dispensation of justice.
9. Q: W hat is a co u rt o f law?
A: A c o u rt o f law decides a case according to what the
promulgated law is.
10. Q: W hat is a co u rt o f eq u ity ?
A: A c o u rt o f eq u ity adjudicates a controversy according
to the common precepts of what is right and ju st without
inquiring into the terms of the statutes.
11. Q: W hat is a civil a ctio n ?
A: A civil a ctio n is one by which a party sues another for
the enforcement or protection of a right, or the prevention or
redress of a wrong.
12. Q: W hat is a crim inal actio n ?
A: A crim in al actio n is one by which the State prosecutes
a person for an act or omission punishable by law.
13. Q: W hat is a special proceeding?
A: A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.
 CHAPTER I 3
I. DEFINITION OF TERMS

14. Q: W hat is th e expanded d efinition of ju d icial

pow er? (2007 Bar Exam ination)
A: Ju d ic ia l pow er includes the duty of the courts of justice
to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. (Sec. 1, Art. VIII o f the
1 9 8 7 Constitution)

15. Q: W hat is ju risd ic tio n ?

A: Ju risd ic tio n is defined as the power of the court to
hear and decide cases (Herrera vs. Barreto, 2 5 Phil. 33) and
to execute the judgment thereon. (Echegaray vs. Secretary o f
Justice, 301 SCRA 96)

16. Q: W hat is general ju risd ic tio n ?

A: The power of the court to adjudicate all controversies
except those expressly withheld from the plenary powers
of the court. It extends to all controversies which may be
brought before a court within the legal bounds of rights and
remedies.
17. Q: W hat is special o r lim ited ju risd ic tio n ?
A: One which restricts the court’s jurisdiction only to
particular cases and subject to such limitations as may be
provided by the governing law. It is confined to particular
causes, or which can be exercised only under the limitations
and circumstances prescribed by the statute.
18. Q: W hat is original ju risd ic tio n ?
A: The power of the court to take judicial cognizance of a
case instituted for judicial action for the first time under the
conditions provided by law.
19. Q: W hat is exclusive ju risd ic tio n ?
A: The power to adjudicate a case or proceeding to the
exclusion of all other courts at that stage.
4 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

20. Q: W hat Is exclusive original ju risd ic tio n ?

A: The power of the court to take judicial cognizance of a
case instituted for judicial action for the first time under the
conditions provided by law, and to the exclusion of all other
courts.
21. Q: W hat is appellate ju risd ic tio n ?
A: The power and authority conferred upon a superior
court to rehear and determine causes which have been tried
in lower courts, the cognizance which a superior court takes
of a case removed to it, by appeal or writ of error, from the
decision of a lower court, or the review by a superior court of
the final judgment or order of some lower courts.
22. Q: W hat is te rrito ria l ju risd ic tio n ?
A: It refers to the geographical area within which its powers
can be exercised. It is the power of the tribunal considered
with reference to the territory within which it is to be exercised.
23. Q: W hat is co n cu rren t/co n flu en t or co o rd in ate ju ­
risd ictio n ?
A: It is the power conferred upon different courts, whether
of the same or different ranks, to take cognizance at the
same stage of the same case in the same or different judicial
territories.
24. Q: W hat is delegated ju risd ic tio n ?
A: The grant of authority by the Supreme Court to inferior
courts to hear and determine cases under certain conditions.
25. Q: W hat is ven u e?
A: It is defined as the place where the case shall be
instituted, heard, and tried.
26. Q: W hat is a q u estio n o f law?
A: A q u estio n o f law exists when there is doubt or
controversy as to what law is on a certain state of facts.
 CHAPTER I 5
I. DEFINITION OF TERMS

27. Q: W hat is a q u estio n o f fact?

A: A q u estio n o f fact exists when the doubt or controversy
arises as to the truth or falsity of the alleged facts. (Arturo
C. Cabaron vs. People o f th e Philippines, G.R. No. 156981,
October 5, 2009)

28. Q: W hat is an a ctio n ?

A: It is a suit filed in court for the protection and enforcement
of a right and the prevention and redress of a wrong.
29. Q: W hat is a cause o f a c tio n ?
A: It is the delict or wrongful act or omission committed by
the defendant in violation of the primary rights of the plaintiff.
(Racoma vs. Fortich, et al., L-29380, June 10, 1971)

30. Q: W hat is a rig h t o f actio n ?

A: It is simply the remedial right or right to relief granted by
law to a party to institute an action against a person who has
committed a delict or wrong against him.
31. Q: W hat is a real a ctio n ?
A: A real action is an action “affecting title to or possession
of real property, or interest therein.” (Sec. 1, Rule 4)
32. Q: W hat is a perso n al actio n ?
A: It is an action which is not founded upon the privity of
real rights or real property. An action for specific performance
is a personal action. (Siosoco vs. Court o f A ppeals, 3 0 3 SCRA
186)
An action which seeks to recover personal property,
enforcement of a contract, or the recovery of damages.
33. Q: W hat is a m ixed a c tio n ?
A: It is an action wherein the plaintiff joins two or more
causes of actions based on the same act or occurrence, one
of which is a real action. (Emergency Loan Paw nshop, Inc. vs.
Court o f A ppeals, G.R. No. 129184, February 28, 2010)
6 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

34. Q: W hat ia a local a c tio n ?

A: It is an action which is required by the rules to be instituted
in a particular place in the absence of any agreement to the
contrary.
35. Q: W hat is a tra n sito ry actio n ?
A: It is an action the venue of which is dependent generally
upon the residence of the parties regardless of where the
cause of action arose.
36. Q: W hat is an a ctio n in re m ?
A: One which is not directed only against particular person,
but against the thing itself and the object of which is to bar
indifferently all who might be minded to make any objection
against the right sought to be enforced, hence, the judgment
therein is binding theoretically upon the whole world.
37. Q: W hat is an a c tio n in p e r s o n a m ?
A: It is an action which is directed against particular
persons on the basis of their personal liability to establish a
claim against them and the judgment therein is binding only
upon the parties impleaded or their successor in interest.
38. Q: W hat is an a ctio n quasi in re m ?
A: One which is directed against particular persons
but the purpose of which is to bar and bind not only said
persons but any other person who claims any interest in the
property or right subject of the suit. (As cited in Remedial Law
Compendium, Florenz D. Regalado, Sixth Ed., pp. 20-21)
39. Q: W hat is a pleading?
A: A pleading is the written statements of the respective
claims and defenses of the parties submitted to the court for
appropriate judgment.
40. Q: W hat is an in itia to ry pleading?
A: In itiato ry pleading is a pleading filed before the court
which commences an action.
 CHAPTER I 7
I. DEFINITION OF TERMS

41. Q: W hat is a responsive pleading?

A: A responsive pleading is a pleading which responds to
the pleadings of the adverse party.
42. Q: W hat is a co m p lain t?
A: A co m p lain t is the pleading alleging the plaintiffs cause
or causes of action.
43. Q: W hat is a com pulsory co u n terclaim ?
A: A com pulsory co u n terclaim is a pleading which, being
cognizable by the regular courts of justice, arises out of, or
is 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.
44. Q: W hat is perm issive co u n terclaim ?
A: A perm issive co u n terclaim is a pleading asserting
a claim which, being cognizable by the regular courts of
justice, which does not arise out of or is not connected with
the transaction or occurrence constituting the subject matter
of the opposing party’s claim and require for its adjudication
the presence of third parties of whom the court can acquire
jurisdiction.
45. Q: W hat is a co u n ter-co u n terclaim ?
A: A co u n ter-co u n terclaim is a claim by the defending
party against the counter-claimant.
46. Q: W hat is a cross-claim ?
A: 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.
47. Q: W hat is a c o u n te r cross-claim ?
A: A counter cross-claim is a claim by the defending party
against the original cross-claimant.
8 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

48. Q: W hat is a th ird /fo u rth p arty -com plaint?

A: A third (fourth, etc.) party-complaint is a claim that a
defending party may, 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 opponent’s claim.
49. Q: W hat is a co m p lain t-in -in terv en tio n ?
A: A co m p lain t-in -in terv en tio n is a pleading filed before
the court with leave of court by a person who has a legal
interest in the matter in litigation, or against either or all
of the original parties, 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.
50. Q: W hat is an answ er?
A: An answ er is a pleading in which a defending party sets
forth his defenses.
51. Q: W hat is a reply?
A: 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 by way of defense in the answer and thereby join or
make issue as to such new matters.
52. Q: W hat is lach es?
A: Laches has been defined as the “failure or neglect, for
an unreasonable and unexplained length of time, to do that
which, by exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a right
within a reasonable time, warranting the presumption that the
party entitled to assert it either has abandoned or declined to
assert it.” (Tijam vs. Sibonghanoy, G.R. No. L-21450, April 15,
1968; Republic o f the Philippines vs. Bantigue Point Development
Corporation, G.R. No. 162322, March 14, 2012)

53. Q: W hat is sp littin g a cause o f a ctio n ?

A: It is the act of dividing a single or indivisible cause of
action into several parts or claims and instituting two or more
 CHAPTER I 9
I. DEFINITION OF TERMS

actions upon them. A single cause of action or entire claim

or demand cannot be split up or divided in order to be made
the subject of two or more different actions. (Catalina Chu, et
al. vs. S pou ses H ernando C unanan & Trinidad Cunanan, G.R.
No. 156185, S eptem ber 12, 2011)

54. Q: Who is a real p arty -in -in te rest?

A: A real p arty -in -in te rest is the party who stands to be
benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit.
55. Q: Who is a rep resen tativ e p a rty ?
A: 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.
56. Q: Who is an indispensable p arty ?
A: An indispensable party is one who m ust be included in
an action before it may properly go forward. (Pimentel, Jr., et
al. vs. S en ate Comm ittee o f th e Whole, G.R. No. 187714, March
8 , 2011 )

57. Q: Who is a n ecessary p a rty ?

A: 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)

58. Q: W hat is a class su it?

A: A class s u it is a suit filed before the court 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
numerous and representative who may sue or defend for the
benefit of all. (Sec. 12, Rule 3)
10 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

59. Q: W hat is a d erivative s u it?

A: A derivative s u it is a suit in equity that is filed by a
minority shareholder in behalf of a corporation to redress
wrongs committed against it, for which the directors refuse
to sue, the real party-in-interest being the corporation itself.
(Lint vs. Lim-Yu, G.R. No. 138343, February 19, 2001)

60. Q: W hat is a citizen s u it?

A: A citizen s u it 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 o f A.M. No. 09-6-8-SC)
61. Q: Who is an in d ig en t p a rty /litig a n t /f o r m a
p a u p e r is ?
A: For purposes of a suit in form a pau peris, an indigent
litig a n t is not really a pauper, but is properly a person who
is an indigent although not a public charge, meaning that he
has no property or income sufficient for his support aside from
his labor, even if he is self-supporting when able to work and
in employment. The term “im m ediate fa m ily " includes those
members of the same household who are bound together by
ties of relationship but does not include those who are living
apart from the particular household of which the individual
is a member. (Tokyo Marine M alayan Insurance Co., Inc. vs.
Jorge Valdez, G.R. No. 150107, J an u ary 28, 2008)

62. Q: W hat Is a verificatio n ?

A: V erification is a statement under oath. It includes both
the actual swearing to the truth of the statements by the
subscriber and also the certification thereto by the notary
or other officer authorized to administer oath. (71 C.J.S.
P le a d in g s 3 4 3 [1931])

63. Q: W hat is forum sh opping?

A: Forum shopping has been defined as 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 a special civil action
 CHAPTER I 11
I. DEFINITION OF TERMS

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.
(Metropolitan B ank a n d Trust Com pany, S u bstitu ted B y
M eridian [SPV-AMCI] Corporation vs. International Exchange
Bank, G.R. No. 176008, A u gu st 10, 2011)

64. Q: W hat is L itis pendentia?

A: L itis p en d en tia is a Latin term, which literally means
“a pen din g su it” and is variously referred to in some decisions
as lis p e n d e n s and au ter action p en d a n t. 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. It is based on the policy against multiplicity of
suits. (Goodland Company, Inc. vs. Asia United Bank, Abraham
Co, Atty. Joel T. Pelicano and the Register o f D eeds o f Makati City,
G.R. No. 195561, March 14, 2012)

65. Q: W hat is an actionable d o cu m en t?

A: It is a document relied upon by either the plaintiff or
defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc., 5
Phil. 736)

66. Q: W hat is a m o tio n ex-parte?

A: It is a motion made without the presence or a notification
to the other party because the question generally presented is
not debatable.
67. Q: W hat is a m o tio n o f co u rse?
A: 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.
68. Q: W hat is a litig ated m o tio n ?
A: It is a motion which is made with notice to the adverse
party to give an opportunity to oppose involving an issue
which is debatable.
12 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

69. Q: What is a non-litigated m otion?

A: It is a motion where notice to the adverse party and
hearing is not required, and involves an issue which is
non-debatable.
70. Q: What is a special m otion?
A: It is a motion which is addressed to the sound discretion
of the court.
71. Q: What is an oral m otion?
A: It is a motion which is made in open court.
72. Q: W hat is a w ritten m otion?
A: It is a motion which is formally placed in writing.
73. Q: W hat is an om nibus m otion rule?
A: 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.
74. Q: What is th e m eaning o f filing of th e pleading?
A: Filing is the act of presenting the pleading or other paper
to the clerk of court.
75. Q: W hat is th e m eaning of service?
A: Service is the act of providing a party with a copy of the
pleading or paper concerned.
76. Q: What is an order of default?
A: A default order is issued by the court, on plaintiffs
motion and at the start of the proceedings, for failure of the
defendant to file his responsive pleading seasonably.
77. Q: What is a judgm ent by default?
A: A judgment by default — is a judgment rendered by the
court based on the presentation of the plaintiffs evidence ex-
parte after the defendant has been declared in default, and
the award shall not exceed the amount or be different from
 CHAPTER I 13
I. DEFINITION OF TERMS

the kind of prayer that the plaintiff complained as the facts

and evidence so warrant.
78. Q: W hat is ex trin sic fraud?
A: “E xtrinsic fr a u d refers to any fraudulent act of the
prevailing party in the litigation which is committed outside
of the trial of the case, whereby the unsuccessful party has
been prevented from exhibiting fully his case, by fraud or
deception practiced on him by his opponent.” (Philippine
Tourism Authority vs. Philippine Golf Development & Equipment,
Inc., G.R. No. 176628, March 19, 2012)

79. Q: W hat is a ccid en t?

A: An event that takes place without one’s foresight or
expectation — an event that proceeds from, an unknown
cause, or is unusual effect of a known cause, and, therefore,
not expected. (Dela Cruz vs. Capital Insurance & Surety Co.,
129 Phil. 141)

80. Q: W hat is m istak e?

A: M istake is an error in action or a blunder. (Coombs vs.
Santos, 2 4 Phil. 451)

81. Q: W hat is excusable negligence?

A: In practice, and particularly with reference to the setting
aside of a judgment taken against a party through his
“excusable neglect,” this means a failure to take the proper
steps at the proper time, not in consequence of the party’s
own carelessness, inattention, or willful disregard of the
process of the court, but in consequence of some unexpected
or unavoidable hindrance or accident, or reliance on the
care and vigilance of his counsel or on promises made by
the adverse party. As used in rule (e.g., Fed. R. Civil P. 6[b])
authorizing court to permit an act to be done after expiration
of the time within under the rules such act was the result of
“excusable neglect”, quotes phrase is ordinarily understood
to be the act of a reasonably prudent person under the same
circumstances. (Black’s L a w Dictionary, Fifth Ed., p p . 292-
293)
14 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

82. Q: W hat is am endm ent?

A: A m endm ent is an act of adding, changing, substituting,
or omitting something from a pleading, or instrument. (Cuenco
vs. Laya, L-31252, December 22, 1969, 3 0 SCRA 756)

83. Q: What is bill o f p articu lars?

A: Bill of particulars — is a more definite statement of fact
and material allegations in the pleadings.
84. Q: What is a m otion for bill o f p articulars?
A: It is an application before the court for a more definite
statement of the facts and material allegations in the pleading.
85. Q: W hat is Us pendens?
A: Lis pendens which literally means pending suit refers
to the jurisdiction, power or control which a court acquires
over the property involved in a suit, pending the continuance
of the action, and until final judgment. (J. Casim Construction
Supplies, Inc. vs. Registrar o f D eeds o f Las Pinas, Intestate
E state o f Bruneo F. Casim [Purported] Intervenor, G.R. No.
168655, July 2, 2010)

86. Q: W hat is a notice of lis pendens?

A: A notice of Us 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. (Isabelita
Cunanan vs. Jumping Jap Trading Corp., G.R. No. 173834,
April 24, 2009)

87. Q: W hat is a m otion to dism iss?

A: It is an application for the dismissal of the action based
on the grounds set forth under Sec. 1, Rule 16 to be filed
before the filing of a responsive pleading.
88. Q: W hat is arb itratio n ?
A: A rbitration is a mode of settling disputes between
parties. Like many alternative dispute resolution processes,
it is a product of the meeting of minds of parties submitting a
 CHAPTER I 15
I. DEFINITION OF TERMS

pre-defined set of disputes. They agree among themselves to a

process of dispute resolution that avoids extended litigation.
The state adopts a policy in favor of arbitration under Sec.
2 of Republic Act No. 9285. (B ases Conversion D evelopm ent
Authority vs. DMCI Project D evelopers, Inc., [G.R. No. 173170],
North Luzon R a ilw a ys Corporation vs. DMCI Project D evelopers,
Inc., G.R. No. 173137, Jan u ary 11, 2016)

89. Q: W hat is a S trateg ic Law suit A gainst Public Par­

tic ip a tio n (SLAPP)?
A: A legal action filed to harass, vex, exert undue pressure
or stifle any legal recourse that any person, institution or
the government has taken or may take in the enforcement
of environmental laws, protection of the environment or
assertion of environmental rights shall be treated as a SLAPP
and shall be governed by these Rules.
90. Q: W hat is in te rv e n tio n ?
A: In te rv en tio n — is defined as an act or proceeding by
which a third person is permitted to become a party to an
action or proceeding between other persons, and which
results merely in the addition of a new party or parties to an
original action, for the purpose of hearing and determining
at the same time all conflicting claims may be made to the
subject matter of litigation. In greater detail, it has been
defined as the admission by leave of the court, of a person
not an original to pending legal proceedings, by which
such person becomes a party thereto for the protection of
some right or interest alleged by him to be affected by such
proceedings, and as 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 claim of
plaintiff, or demanding something adversely to both of them.
(Jose Agaton Sibal, Philippine Legal Encyclopedia, 1986 Ed.,
p. 454)

91. Q: W hat is a negative defense?

A: A negative defense is the specific denial of the material
fact or facts alleged in the pleading of the claimant essential
to his cause or causes of action.
16 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

92. Q: W hat is an affirm ative defense?

A: 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.
93. Q: W hat is a d ep osition?
A: A deposition is the testimony of a witness, put or taken
in writing, under oath or affirmation, before a commissioner,
examiner of other judicial officer, in answer to interrogatory
or cross-interrogatory, and usually subscribed by the witness.
(Ayala Land, Inc. vs. Tagle, et al., G.R. No. 153667, A ugust 11,
2005)

94. Q: W hat is a p re-trial conference?

A: 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. Such conferences between
opposing attorneys may be called at the discretion of the
court. The actions taken at the conference are made the
subject of an order which controls the future course of action.
(Fed. R. Civil, p. 16)

95. Q: W hat is a m ode o f discovery?

A: It is a device to obtain information about relevant matters
on the case from the adverse party in preparation for trial.
96. Q: W hat is a le tte r com m ission?
A: 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.
97. Q: W hat is a le tte r rogatory?
A: 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 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
 CHAPTER I 17
I. DEFINITION OF TERMS

other, in a similar case. (Ballentine’s L aw Dictionary, 2 n d Ed.,

p . 744)

98. Q: W hat is an in terro g ato ry ?

A: Questions in writing exhibited, i.e., addressed, to a
party to an action by an adverse party, before trial of the
action, and answered in writing under oath. (Philippine Legal
Encyclopedia, Sibal J. A. R., p. 453, 1986 Ed.)

99. Q: W hat is an adm issio n ?

A: An adm ission 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.
(Lacbayan vs. Sam oy, G.R. No. 165427, March 21, 2011)

100. Q: W hat is tria l?

A: A tria l is a judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with his
closing arguments. (Acosta vs. People, 5 SCRA 774)
101. Q: W hat is ju d g m e n t?
A: A ju d g m en t is the final ruling by a court of competent
jurisdiction regarding the rights or other matters submitted
to it in an action or proceeding. (Macahilig vs. Heirs o f Gracia
M. Magalit, G.R. No. 141423, N ovem ber 15, 2000)

102. Q: W hat is ju d g m en t by confession?

A: “Ajudgment by confession is not a plea but an affirmative
and voluntary act of the defendant himself. Here, the court
exercises a certain amount of supervision over the entry
of judgment, as well as equitable jurisdiction over their
subsequent status.” (Republic vs. B isa ya Land Transportation
Co., Inc., 81 SCRA 9)

103. Q: W hat is ju d g m en t upon th e m erits?

A: A judgment is on the merits when it amounts to a legal
declaration of the respective rights and duties of the parties
based upon the disclosed facts.
18 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

104. Q: W hat is clarificatory ju d g m en t?

A: A judgment which is difficult to execute and comply
because of ambiguity in its terms, the party may file a motion
for clarificatory judgment in order for the court to remove the
ambiguity.
105. Q: W hat is ju d g m en t nunc p r o tu n c (literally Mnow
for th e n ”)?
A: Judgment nunc pro tunc is a judgment merely intended
to record some act of the court done at a former time which
was not then carried into the record, and the power of a court
to make such entries is restricted to placing upon the record
evidence of judicial action which has been actually taken.
106. Q: W hat is ju d g m en t s in p e r ju ic io ?
A: It is a judgment rendered by the court without prejudice
to the refiling of the case.
107. Q: W hat is ju d g m en t on th e pleadings?
A: “Judgment on the pleadings is, therefore, based
exclusively upon the allegations appearing in the pleadings
of the parties and the annexes, if any, without consideration
of any evidence aliunde. However, when it appears that not
all the material allegations of the complaint were admitted in
the answer for some of them were either denied or disputed,
and the defendant has set up certain special defenses
which, if proven, would have the effect of nullifying plaintiffs
main cause of action, judgment on the pleadings cannot be
rendered.” (Philippine National B ank vs. Merelo B. Aznar, G.R.
No. 171805, M ay 30, 2011)

108. Q: W hat is sum m ary ju d g m en t or “accelerated ju d g ­

m e n t”?
A: Summary judgment is a procedural device resorted
to in order to avoid long drawn out litigations and useless
delays. When the pleadings on file show that there are no
genuine issues of fact to be tried, the Rules allow a party to
obtain immediate relief by way of summary judgment, that
is, when the facts are not in dispute, the court is allowed
 CHAPTER I 19
I. DEFINITION OF TERMS

to decide the case summarily by applying the law to the

material facts. Conversely, where the pleadings tender a
genuine issue, summary judgment is not proper. (Manuel C.
Bungcayao, Sr., represen ted in this c a se b y his Attorney-in-fact
Romel R. B ungcayao vs. Fort Hocandia Property Holdings and
D evelopm ent Corporation, G.R. No. 170483, April 19, 2010)

109. Q: W hat la several ju d g m e n ts?

A: It is a judgment rendered by the court whenever proper
in an action against several defendants against one or more
of them, leaving the action to proceed against the others.
110. Q: W hat is sep arate ju d g m e n t?
A: It is a judgment rendered by the court when more than
one claim for relief is presented in an action at any stage,
upon a determination of the issues material to a particular
claim and all counterclaims arising out of the transaction
or occurrence which is the subject matter of the claim, may
render a separate judgment disposing of such claim. The
judgment shall terminate the action with respect to the claim
so disposed of and the action shall proceed as to the remaining
claims. In case a separate judgment is rendered, the court
by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such
conditions as may be necessary to secure the benefit thereof
to the party in whose favor the judgment is rendered.
111. Q: W hat is special ju d g m en t?
A: The special judgment in this section is one which requires
the performance of any act, other than the payment of money
or the sale or delivery of real or personal property, which a
party m ust personally do because his personal qualifications
and circumstances have been taken into consideration.
Refusal to comply is punishable by contempt. (See Chinese
Commercial Property Co. vs. Martinez, G.R. No. L-18565,
N ovem ber 30, 1962)

112. Q: W hat is ju d g m en t for specific a c ts ?

A: A judgment for specific acts under Sec. 10, on the other
hand, directs a party to execute conveyance of land, or to
20 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

deliver deeds or other documents, or to perform any other

specific acts in connection therewith but which acts can be
performed by persons other than said party. Hence, on refusal
to comply, the court can appoint some other person to perform
the act directed to be done at the expense of the disobedient
party and the act when so done shall have the same effect
as if performed by the party himself. The disobedient party
incurs no liability for contempt. (See Caluag vs. Pecson, et
al., 8 2 Phil. 8; Francisco, et al. vs. National Urban Planning
Commission, 100 Phil. 984 [Unrep.]; Sandico, et al. vs. Piguing,
et al., G.R. No. L-26115, N ovem ber 29, 1971)

113. Q: W hat is ju d g m en t on dem u rrer to evidence?

A: It is a judgment rendered by the court on the ground of
insufficiency of evidence after the plaintiff has rested its case.
114. Q: W hat is conditio n al ju d g m en t?
A: Where the judgment is indefinite, or requires the
performance of a condition, the court must first determine
whether or not the condition imposed therein had been
complied with before it could issue a writ of execution. (Cotton
vs. Alm eda-Lopez, 3 SCRA 51)

115. Q: W hat is a final ju d g m en t?

A: Once a judgment becomes final and executory, all the
issues between the parties are deemed resolved and laid to
rest. All that remains is the execution of the decision which is
a matter of right. The prevailing party is entitled to a writ of
execution, the issuance of which is the trial court’s ministerial
duty.
116. Q: W hat is a final an d executory ju d g m en t?
A: A final and executory ju d g m en t is one rendered by the
court when there is no motion for reconsideration or appeal
filed, or the same has already been denied with finality.
117. Q: W hat is a void ju d g m en t?
A: “A judgment is null and void when the court which
rendered it had no power to grant the relief or no jurisdiction
over the subject matter or over the parties or both. In other
 CHAPTER I 21
I. DEFINITION OF TERMS

words, a court, which does not have the power to decide a

case or that has no jurisdiction over the subject matter or
the parties, will issue a void judgment or a coram non ju d ic e ”
(Brigido B. Quiao vs. Rita C. Quiao, Kitchie C. Quiao, Lotis
C. Quiao, Petchie C. Quiao, represen ted b y their m other Rita
Quiao, G.R. No. 176556, July 4, 2012)

118. Q: W hat is an am ended an d clarified ju d g m en t?

A: An amended and clarified judgment is judgment in
which the lower court makes a thorough study of the original
judgment and renders the amended and clarified judgment
only after considering all the factual and legal issues. The
amended and clarified decision is an entirely new decision
which supersedes the original decision.
119. Q: W hat is a su p p lem en tal ju d g m en t?
A: It is a kind of judgment which serves to bolster or adds
something to the primary decision.
120. Q: W hat is an altern ativ e ju d g m e n t?
A: The rule is that when the dispositive part of a final
order or decision is definite, clear and unequivocal and can
be wholly given effect without the need of interpretation or
construction, the same is considered as the judgment of the
court, to the exclusion of anything said in the body thereof.
(Board o f Liquidators vs. Ricm a Trading Corporation, 2 9
SCRA 397)

121. Q: W hat is a deficiency ju d g m e n t?

A: A contingent claim and m ust be filed with probate court
where the settlement of the estate of the deceased mortgagor
is pending, within the period of time fixed for the filing of
claims. (First National C ity B ank o f N ew York vs. Cheng Tan,
4 SCRA 501)

122. Q: W hat is a d eclarato ry ju d g m e n t?

A: Where the petition for declaratory judgment is coupled
with a prayer for the issuance of injunction, the same is
equivalent to an action for prohibition against public officers.
(O’Racca Building Tenants Association, Inc. vs. Kintanar, 3
SCRA 621)
22 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

123. Q: W hat is a null an d ro id ju d g m en t?

A: Null and void judgment: A decision that is null and void
for want of jurisdiction is not a decision in contemplation
of law and, hence, can never become executory. (Planas vs.
Collector o f Internal Revenue, 3 SCRA 395)

124. Q: W hat is a final o rd er?

A: A final o rd er is an order issued by the court which
disposes of the subject matter in its entirety or terminates
a particular proceeding or action, leaving nothing more to
be done except to enforce by execution what the court has
determined, but the latter does not completely dispose of the
case but leaves something else to be decided upon. (Priscilla
Alma J o se vs. Ramon C. Javellana, et al., G.R. No. 158239,
Jan u ary 25, 2012)

125. Q: W hat is an in terlo cu to ry order?

A: An in terlo cu to ry o rd er is one that does not finally
dispose of the case and does not end the Court’s task of
adjudicating the parties’ contentions and determining their
rights and liabilities as regards each other, but obviously
indicates that other things remain to be done by the Court.
The word “interlocutory” refers to something intervening
between the commencement and the end of a suit which
decides some point or m atter but is not a final decision of
the whole controversy. Interlocutory orders merely rule on
an incidental issue and do not terminate or finally dispose of
the case as they leave something to be done before it is finally
decided on the merits. (Rufina I. C aliw an vs. Mario Ocampo,
G.R. No. 183270, February 13, 2009)
126. Q: W hat is a com prom ise ag reem en t?
A: A com prom ise ag reem en t is a contract whereby the
parties, by making reciprocal concessions avoid a litigation
or put an end to one already commenced. (Art. 2 0 2 8 o f the
N ew Civil Code)
127. Q: W hat is th e m eaning o f findings of fact?
A: “The term fin din gs o f fa c t that must be found in the body
of the decision refers to statements of fact, not to conclusions
 CHAPTER I 23
I. DEFINITION OF TERMS

of law. Unlike in pleadings where ultimate facts alone need

to be stated, the Constitution and the Rules of Court require
not only that a decision should state the ultimate facts but
also that it should specify the supporting evidentiaiy facts,
for they are what are called the findings of fact.” (University
o f the Philippines, J o se V. A bueva, Raul P. De Guzman, Ruben
P. A spiras, Emm anuel P. Bello, Wilfredo P. D avid, C asiano S.
Abrigo, an d Josefina R. Licuanan vs. Hon. Agustin S. Dizon, in
his capacity a s Presiding Ju dge o f the Regional Trial Court o f
Quezon City, Branch 80, S tem Builders, Inc., a n d Sennllano
Dela Cruz, G.R. No. 171182, A ugust 23, 2012)

128. Q: W hat is service o f pleading o r paper?

A: Service is the act of providing a party with a copy of the
pleading or paper concerned. If any party has appeared by
counsel, service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several parties,
he shall only be entitled to one copy of any paper served upon
him by the opposite side.
129. Q: W hat is a m otion for new tria l?
A: It is an application for a relief requesting that the judge
set aside the judgment and order a new trial on the basis that
the trial was improper or unfair due to specified prejudicial
errors that occurred.
130. Q: W hat is a m otion for reco n sid eratio n ?
A: It is an application filed by the aggrieved party asking
to set aside or reconsider a judgment, final order issued by
the court which Is not supported or contrary to law; or the
findings is not supported by evidence on record.
131. Q: W hat is a newly discovered evidence?
A: Evidence of a new and material fact, or new evidence in
relation to a fact in issue, discovered by a party case after
the rendition of a verdict or judgment therein. Testimony
discovered after trial, not discoverable before trial by
exercise of due diligence. Newly discovered evidence such as
will support motion for new trial or to reopen for amended
24 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

findings refers to evidence of facts existing at the time of trial

of which the aggrieved party was excusably ignorant. (Black’s
Law Dictionary, H enry Cam pbell Black, M.A., Merriam W ebster
Inc., 1 9 8 7 Ed., p . 543)
132. Q: W hat is an affidavit o f m e rit?
A: An affidavit o f merit is a sworn written statement which
states: (a) the nature or character of the fraud, accident,
mistake or excusable negligence on which the motion for new
trial is based; (b) the facts constituting the movant’s good
and substantial defense or valid causes of action (Ferrer vs.
Sepeng, G.R. No. L-39373, S eptem ber 30, 1974); and (c) the
evidence which he intends to present if his motion is granted.
(Miranda vs. Legaspi, et a l, 92 Phil. 920)
133. Q: W hat is a p r o f o r m a m o tio n ?
A: A pro form a motion — literally a motion in form only — is
one which is filed merely for delay and as a matter of form to
interrupt the period of appeal. (Cutler v. Sebastian , 02883-R,
M ay 8, 1974)
134. Q: W hat is appeal?
A: A civil law procedure whose office is to remove the entire
cause and subjects the transcript to a scrutiny of fact find
law and is in substance a new trial. (U.S. vs. Tamparong, 31
Phil. 327)
135. Q: W hat is a p e titio n for review ?
A: It is a mode of appeal, taken within the period for appeal,
from the decision rendered by the Regional Trial Court in the
exercise of its appellate jurisdiction in cases originating in the
municipal and metropolitan trial courts. (Garcia vs. Lazatin
Consolidated Corporation, SP-08871, M ay 20, 1986)
136. Q: W hat is a quasi-judicial body?
A: A term applied to the action, discretion, etc., of public
administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold
hearings, and draw conclusions from them, as a basis for
 CHAPTER I 25
I. DEFINITION OF TERMS

their official action, and to exercise discretion of a judicial

nature. (Black’s L aw Dictionary, Fifth Ed., p . 650, Henry
Cam pbell Black, M.A.)

137. Q: W hat Is a quasi-judicial pow er?

A: A term which applies to the action discretion, etc., of
public administrative officers or bodies, who are required
to investigate facts, or ascertain the existence of facts, hold
hearings, and draw conclusions from them, as a basis for their
official action and to exercise discretion of a judicial nature.
(Midland Insurance Corporation vs. Interm ediate A ppellate
Court, G.R. No. L-71905, A ugust 13, 1986, 143 SCRA 462)

138. Q: W hat is a p e titio n for relief?

A: It is a legal remedy whereby a party seeks to set aside a
judgment rendered against him by a court whenever he was
unjustly deprived of hearing or was prevented from taking
an appeal because of fraud, accident, mistake, or excusable
negligence. (Quelnan vs. VHF Philippines, G.R. No. 138500,
S eptem ber 16, 2005)

139. Q: W hat is an a ctio n for an n u lm e n t o f ju d g m e n t?

A: An action for annulment of judgment is a remedy in
law independent of the case where the judgment sought to
be annulled was rendered. The purpose of such action is
to have the final and executory judgment set aside so that
there will be renewal of litigation. It is resorted to in cases
where the ordinary remedies of new trial, appeal, petition for
relief, or other appropriate remedies axe no longer available
through no fault of the petitioner, and is based on only on two
grounds; extrinsic fraud and lack of jurisdiction or denial of
due process. (Alaban vs. Court o f A ppeals, 4 7 0 SCRA 697)
140. Q: W hat is co llateral a tta c k ?
A: An attempt to impeach the judgment by matters dehors
the record, before a court in an action other than the one
in which it was rendered. (Philippine L aw Dictionary, Assoc.
Ju stice Federico B. Moreno, 3 rd Ed., p . 165)
26 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

141. Q: W hat is ex ecution?

A: The remedy provided by law for the enforcement of a
judgment and the only portion of a decision that becomes
the subject of execution is that ordained or decreed in the
dispositive part. (Pelejo vs. Court o f A ppeals, G.R. No. L-60800,
August 31, 1982, 116 SCRA 410)

142. Q: W hat is revival o f ju d g m en t?

A: A remedy to enforce judgment by means of the institution
of a complaint in the regular form, not for the purpose of
reexamining and retrying issues already decided upon, but for
the purpose of reviving and enforcing the judgment originally
issued by the court. (Philippine National Bank v. Paguio, SP-
05947, November 8, 1985)

143. Q: W hat is levy?

A: Levy is the essential act by which a property is set apart
for the satisfaction of judgment and taken into the custody
of the law, and that after it has been taken from defendant
his interest is limited to its application to the judgment
irrespective of the time when it may be sold. (Balaquig vs.
Southern Motors Inc., 5049-R, M ay 19, 1976)

144. Q: W hat is g arn ish m en t?

A: G arnishm ent is a warning to a person in whose hands
the effects of another are attached, not to pay the money or
deliver the property of the defendants in his hands to him, but
to appear and answer the plaintiffs suit. (Reliance Procoma,
Inc. vs. Phil-Asia Tobacco Corporation, G.R. No. L-37656, May
31, 1974, 5 7 SCRA 374)

145. Q: W hat is te r c e r ia or th ird -p arty claim ?

A: The special ancillary remedy proceeding of a third-party
claim. (Mata vs. Macaraig, 7145-R, March 5, 1951)
146. Q: W hat is a w rit o f possession?
A: A w rit o f possession is generally understood to be an
order whereby a sheriff is commanded to place a person in
possession of a real or personal property, such as, when a
 CHAPTER I 27
I. DEFINITION OF TERMS

property is extrajudicially foreclosed. (Autocorp Group an d

Autographies, Inc. vs. Hon. Court o f A ppeals, et al., G.R. No.
157553, S eptem ber 8, 2 0 0 4 , citing C hailese Finance Corp. vs.
S pou ses Ma, 4 0 9 SCRA 2 5 0 [2003])

147. Q: W hat is a provisional rem edy?

A: Provisional rem edies are temporary, auxiliary, and
ancillary remedies resorted to by litigants to preserve or
protect their rights or interests while the main action is
pending, to secure the judgment, to preserve the sta tu s quo,
or to preserve the subject matter of the action.
148. Q: W hat is a prelim inary a tta c h m e n t?
A: P relim inary a tta c h m e n t is a provisional remedy issued
upon order of the court where the action is pending, to be levied
upon the property or properties of the defendant therein, the
same to be held thereafter by the sheriff as security for the
satisfaction of whatever judgment might be rendered in said
action in favor of the attaching creditor against the defendant.
(Virata vs. Aquino, G.R. No. L-35027, S eptem ber 10, 1973)

149. Q: W hat is a prelim inary in ju n ctio n ?

A: A p relim in ary in ju n ctio n is an order granted at any
stage of an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to
refrain from a particular act or acts. It may also require the
performance of a particular act or acts. (Sec. 1, Rule 57)
150. Q: W hat is a p relim inary proh ib itory in ju n ctio n ?
A: Prelim inary p ro h ib ito ry injunction is an order granted at
any stage of the action or proceeding prior to the judgment or
final order, requiring a party or court, agency or a person to
refrain from a particular act or acts. (Sec. 1, Rule 58)
151. Q: W hat is a p relim inary m an d ato ry in ju n ctio n ?
A: Prelim inary m andatory injunction, which commands
the performance of some positive act to correct a wrong in the
past. (Sps. Gonzalo T. Dela R osa vs. Heirs o f Juan Valdez, G.R.
No. 159101, Ju ly 27, 2011)
28 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

152. Q: W hat is a p erm an en t in ju n ctio n ?

A: Final/Permanent injunction is one issued in the
judgment in the case permanently restraining the defendant
or making the preliminary injunction permanent.
153. Q: W hat is a tem p o rary restrain in g order?
A: A Temporary Restraining Order is an interlocutory
order or writ issued by the court as a restraint on the
defendant until the propriety of granting an injunction can
be determined, thus going no further in its operation than
to preserve the sta tu s quo until that determination. (Subic
B ay Metropolitan Authority vs. Merlino E. Rodriguez an d WIRA
International Trading Corp., G.R. No. 160270, April 23, 2010)

154. Q: W hat is receivership?

A: R eceivership is an ancillary remedy in a proceeding
(i.e., insolvency) which is incidental to the main proceedings.
Consequently, it cannot be said that the grant of receivership
in one case will amount to res ju d ic a ta on the merits of the
other cases. The grant or denial of this provisional remedy
will still depend on the need for it in the particular action.
(Evelina G. C h avez a n d A ida C havez-D eles vs. Court o f
A pp eals a n d A tty . Fidela Y. Vargas, G.R. No. 174356, Jan u ary
20, 2010)

155. Q: W hat is replevin?

A: Replevin is a proceeding by which the owner or one
who has a general or special property in the thing taken or
detained seeks to recover possession in specie, the recovery
of damages being only incidental. (46 Am. Jur. 6, citing Three
S tates Lumber Co. vs. B landas, [CCA 6th[ 133 F. 6 9 LRA 238)

156. Q: W hat is su p p o rt pendente lite?

A: Support pendente lite is an amount adjudicated by
the trial court during the pendency of an action for support
upon application by the plaintiff at the commencement of
the proper action or at anytime afterwards. It is the remedy
recognized by the Revised Rules of Court and classified as
a provisional remedy rendered by the court as equity and
 CHAPTER I 29
I. DEFINITION OF TERMS

justice may require. (117 SCRA 929, F undam entals o f Support

Pendente Lite)

157. Q: W hat is se q u estratio n ?

A: Sequestration is the means to place or cause to be
placed under the PCGG’s possession or control properties,
building or office, including business enterprises and entities,
for the purpose of preventing the destruction, concealment
or dissipation of, and otherwise conserving and preserving
the same until it can be determined through appropriate
judicial proceedings, whether the property was in truth “ill-
gotten.” (Philippine O verseas Telecommunications Corporation
[POTC], Philippine Communications Satellite Corporation
[PHILCOMSATj vs. S an digan bayan [3rd Division], Republic
o f the Philippines represen ted b y Presidential Comm ission
on Good Governance [PCGG], G.R. No. 174462, February 10,
2016)

158. Q: W hat is a special civil a ctio n ?

A: It is kind of action which are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed
under Rules 62 to 71 and such as may be declared by the
Supreme Court.
159. Q: W hat is in terp lead er?
A: The special civil action of in terp lead er is a remedy
whereby a person who has property in his possession, or as
obligation to render wholly or partially, without claiming any
right in both, or claims an interest which in whole or in part
is not disputed by the conflicting claimants, comes to court
and asks that the persons who claim the said property or who
consider themselves entitled to demand compliance with the
obligation, be required to litigate among themselves, in order
to determine finally who is entitled to one or the other thing.
(Agaton Sibal, Philippine Legal Encyclopedia, p. 451 [1986])

160. Q: W hat is declarato ry relief?

A: D eclaratory R elief is a special civil action brought in
the Regional Trial Court by a person who is interested under
a deed, will, contract, or other written instrument, or whose
30 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

rights are affected by a statute, executive order or regulation,

ordinance, or any other government regulation, before breach
or violation thereof, asking the court to determine any question
of construction or validity arising, and for a declaration of his
rights or duties, thereunder. (Sec. 1, Rule 63)
161. Q: W hat is refo rm atio n of in stru m e n t?
A: A remedy in equity by means of which a written instrument
is made or construed so as to express or conform to the real
intention of the parties when some error or mistake has been
committed. (Zaragoza, Tuason & Co. v. Certified Clubs, Inc.,
52718-R, N ovem ber 24, 1975)

162. Q: W hat is quietin g o f title ?

A: The proceeding to quiet of title of or to remove the cloud
over one’s property is a special civil action, remedial in nature,
which has for its purpose an adjudication that a claim of title
or an interest in property, adverse to that of the complainant,
is invalid, so that the complainant and those claiming under
him may be forever afterward free from any danger of the
hostile claim. This action is for the protection of the true title
and possession and for the promotion of right and justice.
(Alm eyda vs. Racas, 64757-R, Jan u ary 21, 1982)

163. Q: W hat Is a w rit o f certiorari?

A: The w rit o f certiorari is an extraordinary remedy that
the Court issues only under closely defined grounds and
procedures that litigants and their lawyers must scrupulously
observe. They cannot seek refuge under the umbrella of this
remedy on the basis of an undemonstrated claim that they
raise issues of transcendental importance, while at the same
time flouting the basic ground rules for the remedy’s grant.
(Cham ber o f R eal E sta te a n d B u ild ers’ A ssociations, Inc. vs.
Energy Regulatory Commission, G.R. No. 174697, July 8,
2010 )
164. Q: W hat is a p e titio n for certiorari?
A: A petition for certiorari under Rule 65 of the Revised Rules
of Court is a special civil action that may be resorted to only
in the absence of appeal or any plain, speedy, and adequate
 CHAPTER I 31
I. DEFINITION OF TERMS

remedy in the ordinary course of law. It is adopted to correct

errors of jurisdiction committed by the lower court or quasi­
judicial agency, or when there is grave abuse of discretion
on the part of such court or agency amounting to lack or
excess of jurisdiction. An extraordinary remedy, a petition for
certiorari may be filed only if appeal is not available. If appeal
is available, an appeal m ust be taken even if the ground
relied upon is grave abuse of discretion. (Atty. Allan Hilbero
vs. Florencio Morales, Jr., G.R. No. 198760, Jan u ary 11, 2017)

165. Q: W hat is th e m eaning o f "w ith o u t ju risd ic tio n ’'?

A: "W ithout ju risd ic tio n ” means that the court acted with
absolute lack of authority. (Alafriz vs. Nable, 72 Phil. 278,
280, June 10, 1941. S ee a lso Land B ank o f the Philippines vs.
Court o f A ppeals, supra)

166. Q: W hat is excess o f ju risd ic tio n ?

A: There is “excess o f ju risd ic tio n ” when the court
transcends its power or acts without any statutory authority.
167. Q: W hat is grave abuse o f d iscretio n ?
A: “Grave a b u se o f discretion,” under Rule 65, has a specific
meaning. It is the arbitrary or despotic exercise of power due
to passion, prejudice or personal hostility; or the whimsical,
arbitrary, or capricious exercise of power that amounts to an
evasion or refusal to perform a positive duty enjoined by law
or to act at all in contemplation of law. For an act to be struck
down as having been done with grave abuse of discretion,
the abuse of discretion m ust be patent and gross. (Rudolfo I.
Beluso vs. COMELEC, G.R. No. 180711, June 22, 2010)

168. Q: W hat Is p ro h ib itio n ?

A: P rohibition is a special civil action against a tribunal,
corporation, officer, or person exercising judicial, quasi­
judicial, or ministerial function which is alleged in a verified
petition filed by an aggrieved party to be acting or about to
act without jurisdiction or in excess of its jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and
32 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

adequate remedy in the ordinary course of law, praying that

judgment be rendered commanding the respondent to desist
from further proceeding in the action or matter specified
therein, or otherwise granting such incidental reliefs as law
and justice may require. (Sec. 3, Rule 65)
169. Q: W hat is m andam us?
A: M andam us is a command issuing from a court of
competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or board,
or to some corporation or person requiring the performance
of a particular duty therein specified, which duty results from
the official station of the party to whom the writ is directed
or from operation of law. (Rodolfo Laygo an d Willie Laygo vs.
Municipal M ayor o f Solano, Nueva Vizcaya, G.R. No. 188448,
Jan u ary 11, 2017)

170. Q: W hat is quo warranto?

A: Quo w arranto is a special civil action brought by
means of a verified petition in the name of the Republic of
the Philippines against: (a) a person who usurps, intrudes
into, or unlawfully holds or exercises a public office, position,
or franchise; or (b) a public officer who does an act which
constitutes a ground for the forfeiture of his office; or (c) an
association which acts as a corporation within the Philippines
without being legally incorporated or without authority so to
act. (Sec. 1, Rule 66)
171. Q: W hat is e x p ro p ria tio n /e m in e n t dom ain?
A: E m in en t dom ain is the power of the State to take
private property for public use. It is an inherent power of
State as it is a power necessary for the State’s existence; it
is power the State cannot do without. As an inherent power,
it does not need at all to be embodied in the Constitution;
if it is mentioned at all, it is solely for purposes of limiting
what is otherwise an unlimited power. The limitation is found
in the Bill of Rights — that part of the Constitution whose
provisions all aim at the protection of individuals against the
excessive exercise of governmental powers. (Republic o f the
Philippines vs. Sps. Tan Song Boh, G.R. No. 191448, N ovem ber
16, 2011)
 CHAPTER I 33
I. DEFINITION OF TERMS

172. Q: W hat is foreclosure o f m ortgage?

A: F oreclosure of m ortgage is the termination of all
the rights of the mortgagor in the property covered by the
mortgage. (Development B ank o f th e Philippines vs. Zaragosa,
84 SCRA 668)
173. Q: W hat is p a rtitio n ?
A: P artitio n , in general, is the separation, division and
assignment of a thing held in common among those to whom
it may belong. The thing itself be divided or its value.
174. Q: W hat is eje c tm e n t?
A: E jec tm en t is a form of action by which possessory titles
to corporeal hereditaments may be tried and possession
obtained x x x (or) which lies to regain the possession of real
property, with damages for the illegal detention. (Bouvier’s
L aw Dictionary, cited in Sering vs. Plazo, 166 SCRA 84)
175. Q: W hat is an a c c io n in te r d ic ta t?
A: Accion in terd ictal, or an ejectment proceeding under
this Rule, which may be either that for forcible entry
(detentacion) or unlawful detainer (desahucio), which is a
summary action for the recovery of physical possession where
the dispossession has not lasted for more than one year, and
should be brought in the proper inferior court.
176. Q: W hat is an a c c io n p u b lic ia n a ?
A: Accion publiciana, or the plenary action for the recovery
of the real right of possession, which should be brought in
the proper Regional Trial Court when the dispossession has
lasted for more than one year.
177. Q: W hat is an a c c io n r e in v in d ic a to r ia ?
A: Accion reinvindicatoria, or accion de reinvindi-
cacion, which is an action for the recovery of ownership (and
which includes the recovery of possession) which m ust also
be brought in the proper Regional Trial Court. (Francisco
R ealty an d D evelopm ent Corporation vs. Court o f A ppeals, et
al., G.R. No. 125055, O ctober 30, 1998; Firmeza vs. D avid, 92
Phil. 733; Emilia vs. Bado, G.R. No. L-23685, April 25, 1968)
34 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

178. Q: W hat is forcible e n try ?

A: Forcible e n try — When one in physical possession of
a land or building is deprived of that possession by another
through force, intimidation threat, strategy, or stealth.
(Gumiran vs. Gumiran, 21 Phil. 174)

179. Q: W hat is unlaw ful d e tain er?

A: Unlawful d eta in e r is an action to recover possession of
real property from one who unlawfully withholds possession
after the expiration or termination of his right to hold
possession under any contract, express or implied. The
possession of the defendant in unlawful detainer is originally
legal but became illegal due to expiration or termination of
the right to possess. Under Sec. 1, Rule 70 of the Rules of
Court, the action must be filed “within one (1) year after the
unlawful deprivation or withholding of possession.” (Union
B ank o f the Philippines vs. M aunlad Homes, Inc. an d all other
p erso n s or en tities claiming rights un der it, G.R. No. 190071,
August 15, 2012)

180. Q: W hat is co n te m p t?
A: In its restricted and more usual sense, contempt
comprehends a despising of the authority, justice or dignity
of a court. (Barrios vs. Llam as, A.M. No. 1149-MJ, June 30,
1980, 98 SCRA 404)

181. Q: W hat is co n te m p t of c o u rt?

A: C o n tem p t o f co u rt is defined as a disobedience to the
Court by acting in opposition to its authority, justice and
dignity. It signifies not only a willful disregard or disobedience
of the court’s orders, but such conduct which tends to
bring the authority of the court and the administration of
law into disrepute or in some manner to impede the due
administration of justice. Contempt of court is a defiance of
the authority, justice or dignity of the court; such conduct
as tends to bring the authority and administration of the
law into disrespect or to interfere with or prejudice parties-
litigant or their witnesses during litigation. The asseverations
made by petitioners to justify their refusal to allow inspection
or audit were rejected by the trial court. (Rafael J. R oxas and
 CHAPTER I 35
I. DEFINITION OF TERMS

the Heirs o f Eugenia V. Roxas, Inc. vs. Hon. Artemio S. Tipon,

in his capacity a s Presiding Ju dge o f th e Regional Trial Court
o f Manila, Branch 46, F.U. Juan Corporation, an d Fernando U.
Juan, G.R. No. 160641, June 20, 2012)

182. Q: W hat Is a w rit o f K alikasan? (Bar E xam ination

2017)
A: W rit o f K a likasan is a remedy available to a natural
or juridical person, entity authorized by law, people’s
organization. Non-governmental organization, or any public
interest group accredited by or registered with any government
agency, on behalf of persons whose constitutional right to
a balanced and healthful ecology is violated, or threatened
with a violation by an unlawful act or omission of a public
official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or
provinces.
183. Q: W hat is co n tin u in g m andam us? (Bar E xam ination
2017)
A: C ontinuing m andam us is a remedy available to a
natural or juridical person, entity authorized by law, people’s
organization. (Sec. 1, Rule 8, Part III, A.M. No. 09-6-8, Rules o f
Procedure fo r Environmental C ases)

184. Q: W hat is adverse claim ?

A: A claim adverse to the title of the registered owner.
Therefore, purely personal claims — such as commissions
from the sale of land, fees for legal services rendered,
expenses advanced or money loaned — cannot be annotated
on a certificate of title as adverse claims. (Pascual v. Angeles,
SP-09753, D ecem ber 15, 1986)

185. Q: Who is an adverse claim an t?

A: One who claims any right or interest in registered
land adverse to the registered owner arising subsequent to
the original registration. That interest is registerable as an
adverse claim if no other provision is made in Act No. 496 for
its registration. (Arrasola vs. B em a s, 8 6 SCRA 279)
36 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

186. Q: W hat la A lternative D ispute R esolution?

A: “A lternative D ispute R esolution S ystem ” means any
process or procedure used to resolve a dispute or controversy,
other than by adjudication of a presiding judge of a court
or an officer of a government agency, as defined in this Act,
in which a neutral third party participates to assist in the
resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or any
combination thereof. (Sec. 3[a] o f Republic Act No. 9285)
187. Q: W hat is DNA ev idence?
A: “DNA evidence” constitutes the totality of the DNA
profiles, results and other genetic information directly
generated from DNA testing of biological samples.

188. Q: W hat is an a lte rn a te tria l?

A: An alternate tria l is one where parties take turns in
presenting their witnesses respecting the first factual issue
or related issues stated in the order of trial. The party who
bears the burden of proving the affirmative of the issue under
consideration shall be the first to present a witness.

189. Q: W hat is a face-to-face tria l?

A: A face-to-face trial is one wherein witnesses from the
contending sides appear together before the court, sit face-
to-face around a table in a non-adversarial environment,
and answer questions from the court as well as the parties’
counsels respecting the factual issue under consideration.1

II. DOCTRINES, RULES AND PRINCIPLES

IN CIVIL PROCEDURE

1. Q: W hat is th e D octrine o f O perative F act?

A: In the language of an American Supreme Court Decision:
“The actual existence of a statute, prior to such determination
(of constitutionality), is an operative fact and may have
 CHAPTER I 37
I. DEFINITION OF TERMS

consequences which cannot justly be ignored. The past

cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to the invalidity may have
to be considered in various aspects, with respect to particular
relations, individual and corporate, and particular conduct,
private, and official.
The d o ctrin e o f o p erativ e fact recognizes the existence
of the law or executive act prior to the determination of
its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional statute produces
no effect. But its use m ust be subjected to great scrutiny
and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only
as a matter of equity and fair play. It applies only to cases
where extraordinary circumstances exist, and only when
the extraordinary circumstances have met the stringent
conditions that will permit its application.” (Maria Carolina
P. Araullo, Chairperson, Bagong A lyan san g M akabayan;
J u d y M. Taguiwalo, Professor, University o f the Philippines
Diliman, Co-Chairperson, Pagbabago; Henri Kahn, Concerned
C itizens Movement; Rep. Luz Hagan, Gabriela W omen’s Party
R epresentative; Rep. Carlos Isagani Zarate, B a ya n Muna Party-
List R epresentative; R enato M. R eyes, Jr., Secretary General
o f B ayan; M anuel K. Dayrit, Chairman, Ang K apatiran Party;
Veneer Mari E. Crisostomo, Chairperson, A n akbayan; Victor
Villanueva, Convenor, Youth Act N ow vs. Benigno Simeon C.
Aquino III, President o f the Republic o f the Philippines; Paquito
N. Ochoa, Jr., Executive Secretary; an d Florencio B. A bad,
Secretary o f th e D epartm ent o f B udget a n d M anagem ent, G.R.
No. 2 0 9 2 8 7 , Ju ly 1, 2014, Bersam in, J.)

2. Q: W hat is th e D octrine o f C om passionate J u s tic e ?

A: It is a doctrine which provides that harsh provision of law
and the rigid rules of procedure may sometime be tempered
and dispensed with to give room for compassion.
38 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. Q: W hat is "R esidual P o w er/Ju risd ic tio n ” o f th e

C ourt?
A: Sec. 9, Rule 41 of the Rules explains that the court of origin
loses jurisdiction over the case only upon the perfection of the
appeal filed in due time by the appellant and the expiration
of the time to appeal of the other parties. Withal, prior to the
transm ittal o f th e original records o f the ca se to the CA, the
RTC m a y issu e orders fo r th e protection a n d p reservation o f
the rights o f the prevailing p a rty, a s in this case, the issu ance
o f the w rit o f execution b eca u se the resp o n d en t’s a p p ea l w a s
not perfected. (Agustus G onzales a n d S pou ses N estor Victor
an d Maria Lourdes Rodriguez vs. Quirico Pe, G.R. No. 167398,
A ugust 9, 2011)

4. Q: W hat is th e "D octrine o f N on-Interference” or

"D octrine o f Ju d ic ia l S tab ility ”?
A: No court can interfere by injunction with the judgment
or orders of another court of concurrent jurisdiction having
the power to grant the relief sought by injunction.
5. Q: W hat is th e D octrine o f S tale D em ands or Laches?
A: It is a time-honored rule anchored on public policy that
relief will be denied to a litigant whose claim or demand has
become “stale” or who has acquiesced for an unreasonable
length of time, or who has not been vigilant or who has
slept on his rights either by negligence, folly or inattention.
(Arradaza vs. Court o f A ppeals, 170 SCRA 12, 2 0 [1989]) 6

6 . Q: W hat is th e D octrine o f "E stoppel By L aches” or

"E quitable E stoppel”?
A: The rule is that the active participation of the
party against whom the action was brought, coupled
with his failure to object to the jurisdiction of the court
or administrative body where the action is pending, is
tantam ount to an invocation of that jurisdiction and a
willingness to abide by the resolution of the case and will
bar the said party from later on impugning the court or
the body’s jurisdiction. (M egar S u g a r Corporation vs. RTC o f
Iloilo, Br. 68, D um iglas, Iloilo, e t al., G.R. No. 1 7 0 3 5 2 , June
1, 2011)
 CHAPTER I 39
I. DEFINITION OF TERMS

7. Q: W hat is th e D octrine o f Agency by E stoppel or

D octrine o f H olding O ut?
A: It is a doctrine which states that the principal will be
estopped from denying the grant of authority if third (3rd)
parties have changed their positions to their detriment in
reliance on the representation made.
8. Q: W hat is th e D octrine o f Prim ary J u ris d ic tio n ?
A: Under the d o ctrin e o f prim ary ju risd ic tio n , courts
must refrain from determining a controversy involving a
question which is within the jurisdiction of the administrative
tribunal prior to its resolution by the latter, where the
question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical
and intricate matters of fact.
9. Q: W hat is th e D octrine o f H ierarchy o f C ourts?
A: The Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts
or where exceptional and compelling circumstances justify
availment of a remedy within and calling for the exercise of
primary jurisdiction.

10. Q: W hat is th e D octrine o f T ran scen d en tal Im por­

ta n c e ?
A: The rule on hierarchy of courts does not prevent the
Supreme Court from assuming jurisdiction where exceptional
and compelling reasons justify to such remedy in which case,
the Supreme Court exercises its primary jurisdiction.1

11. Q: W hat is th e D octrine o f C ontinuing Ju risd ic tio n

or A dherence to J u risd ic tio n ?
A: 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 averments
in the complaint and the character of the relief sought are
40 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the ones to be consulted. Once ve ste d b y th e allegations in

the complaint, jurisdiction also rem ains veste d irrespective o f
w h eth er or not the p lain tiff is entitled to recover upon all or
som e o f the claim s a sse rte d therein. (City o f D um aguete vs.
Philippine Ports Authority, G.R. No. 168973, A ugust 24, 2011)

12. Q: W hat is th e D octrine o f Ju d icial D eference?

A: It is a rule in which the condition of the court in yielding
or submitting its judgment to that of another legitimate party,
such as the executive branch in case of national defense.
13. Q: W hat is th e D octrine o f Ancillary J u risd ic tio n ?
A: It is the power of the court to settle issues which are
merely incidental to the main action.
14. Q: W hat is Clean H ands o r D irty H ands D octrine?
A: It is a legal doctrine in which the defendant argues
that the plaintiff is not entitled to obtain an equitable relief
because he is acting unethically of in bad faith with respect
to the subject matter of the complaint.
15. Q: W hat is T o tality Rule?
A: 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. (Sec. 5[d], Rule 2)
16. Q: W hat is th e D octrine of E xhaustion of
A dm inistrative R em edies?
A: The thrust of the rule on exhaustion of administrative
remedies is that courts must allow administrative agencies to
carry out their functions and discharge their responsibilities
within the specialized areas of their respective competence.
To this end, administrative agencies are afforded a chance
to correct any previous error committed in its forum.
Furthermore, reasons of law, comity, and convenience prevent
the courts from entertaining cases proper for determination
 CHAPTER I 41
I. DEFINITION OF TERMS

by administrative agencies. (Pio D elos R eye s [Deceased],

R ep resen ted B y Heirs Fidel D elos R eyes, et al. vs. Honorable
Waldo Q. Flores, G.R. No. 168726, March 5, 2010)

17. Q: W hat is th e D octrine o f A bstention?

A: A court of law may apply to refuse to hear a case if hear­
ing the same would potentially intrude upon the powers of
another court, when two cases involving the same issues are
brought before different courts at the same time.
18. Q: W hat is an O m nibus M otion Rule?
A: Under the Omnibus Motion Rule embodied in Sec. 8 of
Rule 15 of the Rules of Court, all available objections that
are not included in a party’s motion shall be deemed waived.
(HDMF vs. Sps. Fidel & Florinda R. See & Sheriff M anuel L.
A ram ado, G.R. No. 170292, June 22, 2011)

19. Q: W hat is H ypothetical A dm ission Rule or “As­

su m p tio n o f T ru th Rule”?
A: When a motion to dismiss is filed, the material allegations
of the complaint are deemed to be hypothetically admitted.
This hypothetical admission, extends not only from the
relevant and material facts well pleaded in the complaint,
but also to inferences that may be fairly deduced from them.
(The Municipality o f Hagonoy, Bulacan, et al. vs. Hon. Simeon
Dumdum, Jr., G.R. No. 168289, March 22, 2010)

20. Q: W hat is P recau tio n ary P rinciple? (Bar

E xam ination 2018)
A: Precautionary principle states that when human activities
may lead to threats of serious and irreversible damage to the
environment that is scientifically plausible but uncertain,
actions shall be taken to avoid or diminish that threat.
21. Q: W hat is th e D octrine o f E lection o f R em edies?
A: It is a doctrine intended to prevent plaintiff from double
recovery for a loss, making the person pursue only one remedy
in an action.
42 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

22. Q: W hat is th e D octrine o f Exclusivity of V enue?

A: Clearly, the words “exclusively” and “waiving for this
purpose any other venue” are restrictive and used advisedly
to meet the requirements. (Emphasis supplied.)
According to the Rules, real actions shall be commenced
and tried in the court that has jurisdiction over the area
where the property is situated. In this case, all the mortgaged
properties are located in the Province of Cebu. Thus, following
the general rule, PAGLAUM and HealthTech should have filed
their case in Cebu, and not in Makati. (Paglaum Management
& Development Corp. and Health Marketing Technologies, Inc.
vs. Union Bank o f the Philippines, Notary Public John Doe, and
Register o f D eeds o f Cebu City and Cebu Province, $J. King &
Sons Co., Inc., Intervenor, G.R. No. 179018, June 18, 2012)

23. Q: W hat is th e “D octrine o f P arty A utonom y”?

A: A pivotal feature of arbitration as an alternative mode of
dispute resolution is that it is, first and foremost, a product
o f p a rty autonom y or the freedom o f the p a rties to “m ake their
ow n arrangem ents to resolve their ow n d isp u tes.” Arbitration
agreements manifest not only the desire of the parties in
conflict for an expeditious resolution of their dispute. They
also represent, if not more so, the parties’ mutual aspiration
to achieve such resolution outside of judicial auspices, in a
more informal and less antagonistic environment under the
terms of their choosing. Needless to state, this critical feature
can never be satisfied in an ejectment case no matter how
summary it may be. (Koppel, Inc. [Formerly Known a s KPL
Aircon, Inc], vs. M akati R otary Club Foundation, Inc., G.R. No.
198075, S eptem ber 4, 2013)
24. Q: W hat is th e Principle of C om petence-
C om petence?
A: Principle of Competence-Competence means that the
arbitral tribunal may initially rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement, or any condition
precedent to the filing of a request for arbitration. (Republic
Act No. 9285, a s cited in L aw an d Jurisprudence on A lternative
Resolution, by Lara, Lara & Zuniga, 2 0 1 6 Ed., p. 10)
 CHAPTER I 43
I. DEFINITION OF TERMS

25. Q: W hat is th e D octrine o f S eparability?

A: D octrine o f Separability, an arbitration agreement is
considered as independent of the main contract. Being a
separate contract in itself, the arbitration agreement may
thus be invoked regardless of the possible nullity or invalidity
of the main contract.
26. Q: W hat is D eliberative P rocess Privilege Inform ation
Rule?
A: D eliberative process privilege is one kind of
privileged information, which is within the exceptions of the
constitutional right to information.
The deliberative process privilege can also be invoked in
arbitration proceedings under Republic Act No. 9285. Under
Republic Act No. 9285, orders of an arbitral tribunal are
appealable to the courts. This disclosure of privileged infor­
mation can inhibit a public official from expressing his or
her candid opinion. Accordingly, a proceeding in the arbitral
tribunal does not prevent the possibility of the purpose of the
privilege being defeated, if it is not allowed to be invoked. In the
same manner, the disclosure of an information covered by the
deliberative process privilege to a court arbitrator will defeat
the policy bases and purpose of the privilege. (Department
o f Foreign Affairs vs. BCA International Corporation G.R. No.
210858, June 29, 2016)
27. Q: W hat is "Sam e Evidence T est R ule”?
A: Several tests exist to ascertain whether two suits relate
to a single or common cause of action, such as whether the
same evidence would support and sustain both the first and
second causes of action (also known as the “same evidence”
test), or whether the defenses in one case may be used to
substantiate the complaint in the other. Also fundamental
is the test of determining w h eth er th e cause of actio n in
th e second case ex isted a t th e tim e of th e filing of th e
first com plaint. (George Leonard S. Umale vs. Canoga Park
Development Corporation, G.R. No. 167246, July 20, 2011)
44 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

28. Q: W hat is th e D octrine o f L is P e n d e n s?

A: A necessary incident of registering a notice of lis p en d en s
is that the property covered thereby is effectively placed, until
the litigation attains finality, under the power and control
of the court having jurisdiction over the case to which the
notice relates. In this sense, parties dealing with the given
property are charged with the knowledge of the existence of
the action and are deemed to take the property subject to the
outcome of the litigation. It is also in this sense that the power
possessed by a trial court to cancel the notice of lis p en d en s
is said to be inherent as the same is merely ancillary to the
main action. (J. Casim Construction Supplies, Inc., R egistrar
o f D eeds o f Las Pinas, In testate E sta te o f Bruneo F. Casim,
[Purported] Intervenor, G.R. No. 168655, July 2, 2010)

29. Q: W hat is Three-(3) Days Notice R ule?

A: Every written motion required to be heard and 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 days before
the date of hearing, unless the court for good cause sets the
hearing on shorter notice. (Sec. 4, Rule 15)
30. Q: W hat is th e D octrine of “A uter A ction P en d an t”?
A: As we held in Dotmatrix Trading us. Legaspi, u[l]itis
p en d en tia is a Latin term, which literally means ‘a pending
suit’ and is variously referred to in some decisions as lis
p e n d e n s and au ter action pen dan t. 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.”
We further emphasized in Guevara vs. BPI Securities
Corporation that “[t]here is litis p en d en tia or another action
p en d en te lite if the following requisites are present: (a)
identity of parties, or at least such parties as represent the
same interests in both actions; (b) identity of rights asserted
and relief prayed for, the relief being founded on the same
facts; and (c) the identity of the two preceding particulars
 CHAPTER I 45
I. DEFINITION OF TERMS

is such that any judgment rendered in the other action,

will, regardless of which party is successful, amount to res
ju dicata in the action under consideration. (Philippine National
Bank vs. G atew ay Property Holdings, Inc., G.R. No. 181485,
February 15, 2012)

31. Q: W hat is Two-Dismissal Rule?

A: When the 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. (Sec. 1, Rule 17)
32. Q: W hat is th e D octrine of “N on -P rosequ itu r”?
A: The fundamental test for non-prosequitur is whether, un­
der the circumstances, the plaintiff is chargeable with want
of due diligence in failing to proceed with reasonable prompti­
tude. There must be unwillingness on the part of the plaintiff
to prosecute. (Shimizu Philippines Contractors, Inc. vs. Mrs.
Leticia B. Magsalin, Doing B u sin ess Under The Trade Name
“K aren’s Trading,” FGU Insurance Corporation, Godofredo
Garcia, Concordia Garcia, an d Reynaldo Baetiong, G.R. No.
170026, June 20, 2012)
33. Q: W hat is “Im plied Adm ission Rule”?
A: Each matter must be denied specifically under oath
setting forth in detail the reason why he cannot truthfully
admit or deny. The silence o f defendant on the p la in tiffs
request fo r adm ission am ounts to an implied acceptance o f the
fa c ts s e t forth therein w ith the effect that p la in tiffs claim stood
undisputed. (Manzano vs. D espabiladeras, G.R. No. 148786,
Decem ber 16, 2004)

34. Q: W hat is th e Principle o f Non-Suited?

A: The failure of the plaintiff to appear shall be cause for the
dismissal of the action. This dismissal will be with prejudice
except when the court orders otherwise. (Mondenodo vs.
Court o f A ppeals, 2 5 2 SCRA 28) The former rule (Sec. 2, Rule
20) provides that the plain tiff who fa ils to a p pear in the p re ­
trial m ay be non-suited.
46 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

35. Q: What is One Day One W itness Rule? (Bar

Exam inations 2008 and 2016)
A: It is a rule that examination of the witness m ust be
terminated within one day, inclusive of direct, cross, redi­
rect, and re-cross examinations, unless the court will allow
otherwise.
36. Q: What is Most Im p o rtan t W itness Rule? (Bar
Exam ination 2016)
A: During pre-trial conference, the judge has the discretion
to determine who are the most important witnesses to
be presented in the trial in order to limit corroborative
testimonies.
37. Q: What is th e Viatory R ights of th e W itness Rule?
A: A witness who resides 100 kilometers away from the
trial court where is to travel in the ordinary course of travel,
or he is a detention prisoner and no permission is obtained
from the court in which the case is pending, he cannot be
compelled to comply with the subpoena or attend the trial.
38. Q: What is th e D octrine of Im m utability of
Ju d g m en t?
A: It is a fundamental legal principle that a decision has
acquired finality becomes immutable and unalterable,
and may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact
and law, and whether it be made by the court that rendered it
or by the highest court of the land. The only exceptions to the
general rule on finality of judgments are the so-called nunc
p r o tu n c en trie s which cause no prejudice to any party, void
judgments, and whenever circumstances transpire after the
finality of the decision which render its execution unjust and
inequitable, x x x Indeed, litigation must end and terminate
sometime and somewhere, even at the risk of occasional
errors. (Land Bank of the Philippines vs. Severino Listana,
G.R. No. 168105, July 27, 2011, Villarama, Jr., J.)
 CHAPTER I 47
I. DEFINITION OF TERMS

39. Q: What is th e D octrine of R e s J u d ic a ta ?

A: Under the doctrine of res ju dicata, therefore, 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 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. (Catalina B alais-M abanag vs. The R egister o f D eeds
o f Quezon City, G.R. No. 153142, March 29, 2010)

40. Q: What is th e Principle of C onclusiveness of

Ju d g m en t?
A: Where there is identity of parties in the first and second
cases, but no identity of causes of action, the first judgment
is conclusive only as to those matters actually and directly
controverted and determined and not as to matters merely
involved therein. This is the concept of res ju dicata known as
“conclusiveness of ju d g m en t.” (Social Security Commission
vs. Rizal Poultry and Livestock Association, Inc., G.R. No.
167050, June 1, 2011)

41. Q: What is th e Principle of Law of th e Case?

A: The principle means that questions of law that have
been previously raised and disposed of in the proceedings
shall be controlling in succeeding instances where the same
legal question is raised, provided that the facts on which the
legal issue was predicated continue to be the facts of the case
before the court. Guided by this definition, the law of the
case principle cannot provide petitioners any comfort. (Danilo
Ursua vs. Republic o f the Philippines, G.R. No. 178193 (2012))

42. Q: What is th e D octrine of S ta r e D e c isis or

A dherence to Ju d icial P reced en ts?
A: Stare decisis simply means that for the sake of certainty,
a conclusion reached in one case should be applied to those
48 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

that follow if the facts are substantially the same, even

though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus,
where the same questions relating to the same event have
been put forward by the parties similarly situated as in a
previous case litigated and decided by a competent court,
the rule of stare decisis is a bar to any attempt to relitigate
the same [issue]. (Nancy L. Ty vs. Banco Filipino Savings and
Mortgage Bank, G.R. No. 188302, June 27, 2012)
43. Q: What is th e D octrine of Preclusion of Claim or
Barred By Prior Ju d g m en t?
A: This provision comprehends two distinct concepts of res
judicata: (1) bar by former judgment and (2) conclusiveness of
judgment. The first aspect is the effect of a judgment as a bar
to the prosecution of a second action upon the same claim,
demand or cause of action. In traditional terminology, this
aspect is known as merger or bar; in modern terminology, U
is called claim preclusion.
44. Q: What is th e D octrine of Preclusion of Issues or
Collateral Estoppel?
A: The second aspect precludes the re-litigation of a
particular fact of issue in another action between the
same parties on a different claim or cause of action. This
is traditionally known as collateral estoppel; in modern
terminology, it is called issue preclusion. (Elisa Degayo vs.
Cecilia Magbanua-Dinglasan, et al., G.R. No. 173148, April 6,
2015)
45. Q: W hat is th e D octrine o f C onstant Ju risp ru d en ce?
A: It is a legal doctrine in which a long series of previous
decisions applying a particular legal principle or rule is highly
persuasive but not controlling in subsequent cases dealing
with similar or identical issues of law.
46. Q: What is “Second Motion for New Trial Rule”?
A: The above rule provides that a second motion for new
trial, based on a ground not existing, nor available when the
 CHAPTER I 49
I. DEFINITION OF TERMS

first motion was made, may be filed within the time herein
provided excluding the time during which the first motion
had been pending. (Sec. 5, Rule 37)

47. Q: W hat is Single M otion R ule?

A: The above rule provides that no party shall be allowed
a second motion for reconsideration of a judgment or final
order by the same party shall be allowed. (Sec. 5, Rule 37)
48. Q: W hat is “Berry” R ule?
A: Motion for New trial on the ground of newly discovered
evidence, which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented
would probably alter the result. (Sec. 1, Rule 37)

49. Q: W hat is “Neypes D octrine” or “F resh Period

Rule”?
A: The N eypes Doctrine” or what our current rules of
procedure refer to now as the “Fresh Period Rule* has
stemmed from the 2005 decision of the Supreme Court in
Domingo N eypes vs. Court o f A ppeals (G.R. No. 141 5 2 4 [2005]).
“To sta n d a rd ize the a p p ea l p erio d s p ro vid ed in the Rules and
to afford litigants fa ir opportunity to a p p ea l their c a se s,” the
Court has deemed it practical to allow a fresh period of 15
days within which to file the notice of appeal, to be counted
from receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or any
final order or resolution.

50. Q: W hat is th e D octrine of V icarious Appeal?

A: A party’s appeal from a judgment will not inure to the
benefit of a co-party who failed to appeal and as against the
latter the judgment will continue to run its course until it
becomes final and executory.
The exception is where both parties have a commonality
of interest the appeal of one is deemed to be a vicarious appeal
of the other. (Republic o f th e Philippines vs. Institute fo r Social
Concerns, G.R. No. 156306, Jan u ary 28, 2005)
50 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

51. Q: W hat is “Lord Coke’s D octrine”?

A: As stated in Sec. 48, Rule 39, the actionable issues are
generally restricted to a review of jurisdiction of the foreign
court, the service of personal notice, collusion, fraud, or
mistake of fact or law. The limitations on review [are] in
consonance with a strong and pervasive policy in all legal
systems to limit repetitive litigation on claims and issues.
Otherwise known as the policy of preclusion, it seeks to
protect party expectations resulting from previous litigation,
to safeguard against the harassment of defendants, to insure
that the task of courts not be increased by never-ending
litigation of the same disputes, and — in a larger sense — to
prom ote w h at Lord Coke in the Ferrer’s C ase o f 1599 sta te d to
be the goal o f all law: “rest and q u ietn ess.” If every ju dgm ent
o f a foreign court w ere review able on the merits, the plaintiff
w ould be forced back on h is/h e r original cau se o f action,
rendering im material the previou sly concluded litigation.
(Bank o f Philippine Islands Securities Corporation vs. Edgardo
Guevara, G.R. No. 167052, March 11, 2015)

52. Q: W hat is th e Principle of Prior or C ontem poraneous

Ju risd ic tio n ?
A: In enforcing a writ of attachment it must be preceded by
or simultaneously accompanied by service of summons, copy
of the complaint, application and affidavits, and the bond
upon the adverse party.
53. Q: W hat is th e D octrine o f th e “S trong Arm of
E quity”?
A: At times referred to as the “Strong Arm o f E qu ity,”
[the Court has] consistently ruled that there is no power
the exercise of which is more delicate and which calls for
greater circumspection than the issuance of an injunction. It
should only be extended in cases of great injury where courts
of law cannot afford an adequate or commensurate remedy
in damages; “in cases of extreme urgency; where the right
is very clear; where considerations of relative inconvenience
bear strongly in complainant’s favor; where there is a willful
and unlawful invasion of plaintiffs right against his protest
 CHAPTER I 51
I. DEFINITION OF TERMS

and remonstrance, the injury being a continuing one, and

where the effect of the mandatory injunction is rather to re­
establish and maintain a pre-existing continuing relation
between the parties, recently and arbitrarily interrupted by
the defendant, than to establish a new relation.” (Thunder
Security an d Investigation A gency vs. National Food Authority,
G.R. No. 182042, July 27, 2011)

54. Q: W hat is Vera D octrine?

A: A person who impugns the validity of statute m ust have
a personal and direct interest in the case such that he has
sustained or will sustain direct injury as a result.
55. Q: W hat is "M aterial D ates Rule”?
A: Under the material dates rule, a petition must alleged
three material dates which is necessary which are as follows:
1) The date when the judgment or final order or reso­
lution was received;
2) The date when the motion for reconsideration or
new trial was filed; and
3) The date when the notice of the denial thereof was
received. (Great Southern Maritime Services Corporation vs.
Acuna, 4 5 2 SCRA 422, February 28, 2005)

56. Q: W hat is th e "Principle o f J u s Regalia”?

A: Proceeding from the principle of ju s regalia, the
right to eminent domain has always been considered as a
fundamental state power that is inseparable from sovereignty.
It is described as the State’s inherent power that need not be
granted even by the Constitution, and as the government’s
right to appropriate, in the nature of compulsory sale to the
State, private property for public use or purpose. (Republic
o f the Philippines vs. Hon. R osa Sam son-Tatad an d S pou ses
William an d Rebecca To, G.R. No. 187677, April 17, 2013)

57. Q: W hat is th e D octrine o f C ontinuing Public Use?

A: When a private property is taken for public use, this
requirement of public use m ust exist during the entire
expropriation proceeding.
52 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

58. Q: W hat is th e P rinciple o f Ju d ic ia l C ourtesy?

A: Sec. 7, Rule 65 of the Rules of Court provides the general
rule that the mere pendency of a special civil action for
certiorari commenced in relation in relation to a case pending
before a lower court or court of origin does not stay the
proceedings therein in the absence of a writ of preliminary
injunction or temporary restraining order. It is true that there
are instances where, even if there is no writ of preliminary
injunction or temporary restraining order issued by a higher
court it would be proper for a lower court or court of origin to
suspend its proceedings on the precept of judicial courtesy.
The principle of judicial courtesy, however, remains to be the
exception rather than the rule. (De Leon vs. PEA, G.R. No.
181970, August 3, 2010)
59. Q: W hat is C onfidential Inform ation R ule?
A: “Confidential information” means any information,
relative to the subject of mediation or arbitration, expressly
intended by the source not to be disclosed, or obtained under
circumstances that would create a reasonable expectation
on behalf of the source that the information shall not be
disclosed. It shall include: (1) communication, oral or written,
made in a dispute resolution proceedings, including any
memoranda, notes or work product of the neutral party or
non-party participant, as defined in this Act; (2) an oral or
written statement made or which occurs during mediation
or for purposes of considering, conducting, participating,
initiating, continuing of reconvening mediation or retaining a
mediator; and (3) pleadings, motions manifestations, witness
statements, reports filed or submitted in an arbitration or
for expert evaluation. (Sec. 3(h], Chapter I o f Republic Act No.
9285)
60. Q: W hat is th e “principle o f S ta n d in g b e y o n d n a tu r a l
and ju rid ical p erso n s”?
A: A “standing” or a right to pursue a case which is extended
to a certain type of parties who has the right to file the action
or the right to challenge the policies of the State.
 CHAPTER I 53
I. DEFINITION OF TERMS

61. Q: W hat is Slip R ule?

A: A Slip rule refers to a rule permitting the correction of any
accidental slip or omission in judgments or orders. Correction
can be made only of typographical errors or matters that were
genuine slips or mistakes.
62. Q: W hat is “H arm less E rror Rule" or “English
Exchequer R ule”? (2017 Bar Exam ination)
A: “Sec. 6. H a rm less error. — No error in either the admission
or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the trial
court or by any of the parties is ground for granting a new
trial or for setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action appears
to the court inconsistent with substantial justice. The court
at every stage of the proceeding m ust disregard any error
or defect which does not affect the substantial rights of the
parties.”
***This stance is a specie of a mid-1800 rule known
as the “English Exchequer Rule” pursuant to which “a trial
court’s error as to the admission of evidence was presumed
to have caused prejudice and therefore, almost automatically
required a new trial.” The Exchequer rule has long been
laid to rest for even English appellate courts now disregard
an error in the admission of evidence “unless in its opinion,
some substantial wrong or miscarriage (of justice) has
been occasioned.” American courts adopted this approach
especially after the enactment of a 1915 federal statute which
required a federal appellate court to “give judgment after an
examination of the entire record before the court, without
regard to technical errors, defects, or exceptions which do
not affect the substantial rights of the parties.” We have
likewise followed the harmless error rule in our jurisdiction.
In dealing with evidence improperly admitted in trial, we
examine its dam aging quality a n d its im pact to the su b sta n tive
rights o f the litigant. If the impact is slight and insignificant,
we disregard the error as it will not overcome the weight of
the properly admitted evidence against the prejudiced party.
(People o f the Philippines vs. Claudio Teeharikee, Jr., G.R. Nos.
111206-08, October 6, 1995)
54 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

63. Q: W hat is th e rule on presum ptive service of notice

of co u rt settin g ?
A: 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. (Sec. 10, Rule 13 of the
2019 Amendments to the 1997 Rules on Civil Procedure)
64. Q: W hat is B ursting Bubble Theory (Thygorean
D octrine)?
A: This refers to a legal principle rebutting a presumption.
Under this theory, a presumption disappears when
the presumed facts have been contradicted by credible
evidence. Bursting-bubble theory requires the opponent of
the presumption to introduce only that evidence which is
sufficient to support a contrary to the presumption.
65. Q: W hat is th e Principle of Liberal In te rp re ta tio n s?
A: The cases should be determined on the merits in order
to give the parties full opportunity to ventilate their causes
and defenses, rather than on technicalities of procedural
imperfections. In that way, the ends of justice would be served
better. Rules of procedure are mere tools designed to expedite
the decision or resolution of cases and other matters pending
in court. A strict and rigid application of rules, resulting
in technicalities that tend to frustrate rather than promote
substantial justice, must be avoided. In fact, Sec. 6 of Rule
1 states that the Rules shall be liberally construed in order
to promote their objective of ensuring the just, speedy and
inexpensive disposition of every action and proceeding.
66. Q: W hat Is th e Principle o f S tare D ecisis?
A: This principle enjoins adherence to judicial precedents
and requires courts to follow the rule established in a decision
of the Supreme Court. That decision becomes a judicial
precedent to be followed in subsequent cases by all courts
in the land. It is based on the principle that once a question
of law has been examined and decided, it should be deemed
settled and closed to further argument.
 CHAPTER I 55
I. DEFINITION OF TERMS

67. Q: W hat is th e D octrine o f Law of th e Case?

A: According to this principle, whatever is once irrevocably
established as the controlling legal rule or decision between
the same parties in the case continues to be the law of the
case, whether correct on general principles or not, so long as
the facts on which such was predicated continue to be the
facts of the case before the court. This principle generally
finds application in cases where an appellate court passes
on a question and remands the case to the lower court for
further proceedings. The question there settled becomes the
law of the case upon subsequent appeal. Consequently, the
court reviewing the succeeding appeal will not re-litigate the
case but instead apply the ruling in the previous appeal. This
enables the appellate court to perform its duties satisfactorily
and efficiently which would be impossible if a question, one
considered and decided by it, were to be litigated anew in the
same case and upon any and subsequent appeal.

III. MOTU PROPRIO ORDERS OR ACTIONS

OF THE COURT

A. U nder th e Rules on Civil Procedure, as am ended

1) Sec. 6, Rule 2. M isjoinder o f C auses o f Action:

Q: May th e c o u rt u p o n its own in itiativ e ord er th e

severance o f a m isjoined cause o f actio n u n d er th e rules?
A: Yes, as expressly mandated by Sec. 2 of the Rule, a
misjoined cause of action may, on motion of a party or on
the initiative o f the court, be severed and proceeded with
separately.

P rocedural Basis:

Sec. 6, Rule 2 o f th e 1997 Rules on Civil Procedure

provides for the rule in case of misjoinder of causes of action.
56 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

It states that:
"Sec. 6. M isjoinder o f c a u se s o f action . —
Misjoinder o f causes o f action is not a ground for
dism issal o f an action. A m isjoined cause o f action
m ay, on m otion o f a party or on th e in itia tiv e o f th e
cou rt, be severed and proceeded with separately.”

2) Sec. 3(c), Rule 7. S ignature and Address:

Q: May th e co u rt m o tu p r o p r io im pose san ctio n for

violation of Sec. 3(c), Rule 7 o f th e 2019 am ended rules?
A: Yes, under Sec. 11 of the Rule 3, parties may be dropped
or added by order of the court on motion of any party or on its
own initiative at any stage the action and on such terms as
are just.

Procedural Basis:
Under Sec. 3, Rule 7, if the court determines, on motion
or motu propio and after notice and hearing, that this rule
has been violated, it may impose sanction.
Sec. 3, Rule 7 of th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20-SC) provides
for the rule on sanctions for violation of the provision of
signature or address. It states that:
“Sec. 3. S ig n a tu re a n d a d d re ss. — (a) Every
pleading and other w ritten subm issions to th e court
m ust be signed by th e party or counsel representing
him or her.
x x a x.
(c) If th e court determ ines, on m otion or m otu
p ro p rio and after n otice and hearing, that th is rule
has been violated, it may im pose an appropriate
sanction or refer such violation to th e proper office
for disciplinary action, on any attorney, law firm, or
party that violated th e rule, or is responsible for the
violation. Absent exceptional circum stances, a law firm
shall be held join tly and severally liable for a violation
com m itted by its partner, associate, or em ployee.
 CHAPTER I 57
I. DEFINITION OF TERMS

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.” (3a)

3) Sec. 11, Rule 11. M isjoinder and Non-joinder

o f Parties:

Q: May th e c o u rt on its own in itiativ e order th e dropping

or adding o f p a rtie s in case o f m isjoinder or non-joinder
u n d er th e 2 0 1 9 am ended ru les?
A: Yes, in case of violation of Sec. 11 of the Rules, parties
may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage the action and
on such terms as are just.
P rocedural Basis:

Sec. 11, Rule 3 o f th e 1997 Rules on Civil P rocedure

provides for the rule in case of misjoinder and non-joinder of
parties. It states that:
“Sec. 11. M isjoinder an d n on join der o f p a rtie s.
— Neither misjoinder nor non-joinder of parties is
ground for dismissal of an action. Parties m ap be
dropped or added by order of the court on motion of
any party or audits own in itia tive at any stage the
action and on such term s as are just. Any claim against
a misjoined party may be severed and proceeded with
separately.”

4) Sec. 12, Rule 8. S trik in g O ut of Pleading or M atter

C ontained Therein:
Q: May th e c o u rt on its own in itiativ e ord er th e strik in g
o u t o f a pleading or m a tte rs co n tain ed th e re in u n d er th e
2019 am ended ru les?
58 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Yes, 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.

Procedural Basis:

Sec. 12, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20-SC) provides
for the rule om striking out of pleadings or matter in pleading.
It states that:
“Sec. 12. S trik in g o u t o f p le a d in g o r m a tte r
c o n ta in e d th erein . — Upon m otion made by a party
before responding to a pleading or, if no responsive
pleading is perm itted by th e se Rules, upon m otion
m ade by a party w ithin tw enty (20) days after th e
service o f th e pleading upon him , or upon th e c o u rt’s
ow n in itia tiv e at any tim e, th e court m ay order any
pleading to be stricken ou t or that any sham or false,
redundant, im m aterial, im pertinent, or scandalous
m atter be stricken ou t therefrom .”

5) Sec. 1, Rule 9. M otu Proprio Dismissal:

Q: May th e co u rt m o tu p r o p r io order th e dism issal of

th e actio n u n d er th e 2019 am ended ru les?
A: Yes, the court shall dismiss the case based on the
grounds stated under Sec. 1 of Rule 9.

Procedural Basis:

Sec. 1, Rule 9 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20-SC) provides
for the rule on motu proprio dismissal of the action. It states
that:
‘S e c . 1. D efenses a n d o b jection s n o t p le a d e d .
— D efenses and objections n ot pleaded eith er in a
m otion to dism iss or in th e answer are deem ed waived.
However, w hen it appears from th e pleadings or the
evid en ce on record th a t th e court has no jurisdiction
 CHAPTER I 59
I. DEFINITION OF TERMS

over th e subject m atter, th at th ere la another action

pending betw een th e sam e parties for th e sam e cause,
or th a t th e action is barred by a prior judgm ent or
by statu te o f lim itation s, th e cou rt s h a ll d ism iss th e
claim . ”

6) Sec. 4, Rule 10. Form al A m endm ents:

Q: May th e co u rt a t its own in itiativ e order th e form al

am en d m en t in th e pleading?
A: Yes, the court at any stage of the action, a t its initiative
or on motion correct a defect in the designation of the parties
and other clearly clerical or typographical errors.

P rocedural Basis:

Sec. 4, Rule 10 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20-SC) provides
for the rule on motu proprio formal amendment. It states that:
“S ec. 4 . Formal am endm ents. — A d efect in th e
designation o f th e parties and other clearly clerical or
typographical errors m ay be sum m arily corrected by
th e court at any stage o f th e action , a t its in itia tive
or on m otion, provided n o prejudice is caused thereby
to th e adverse party.”

Sec. 12(c), Rule 8. A ffirm ative D efenses

3
Q: Can th e c o u rt m o tu p r o p r io resolve th e affirm ative
defenses in th e answ er?
A: Yes, the court shall motu proprio resolve the above
affirmative defenses within thirty (30) calendar days from the
filing of the answer.
:■ a— a3B
P rocedural Basis:

Sec. 12, Rule 8 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20-SC) provides
for the rule on motu proprio resolution of affirmative defenses.
It states that:
60 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 12. A ffirm ative 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:
a x a.
(c) The court sh a ll motu proprio resolve the
above affirmative defenses within thirty (30) calendar
days from the filing of the answer."

8) Sec. 3, Rule 17. D ism issal Due to th e F ault of th e

Plaintiff:

Q: Can th e co u rt upon its own m otion dism iss th e case

due to th e fault of th e plain tiff u n d er Rule 17?
A: Yes, 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 or her counterclaim
in the same or in a separate action.

Procedural Basis:

Sec. 3, Rule 17 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20-SC) provides
for the rule on motu proprio dismissal of the complaint upon
the fault of the plaintiff. It states that:
“Sec. 3. D ism issal due to fa u lt o f plaintiff.
— If, for no Justifiable cause, the plaintiff falls to
appear on the date of the presentation of his or her
evidence In chief on the complaint, or to prosecute
his or her 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 th e court's own motion,
without prejudice to 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.”
 CHAPTER I 61
I. DEFINITION OF TERMS

9) Sec. 2, Rule 32. R eference O rdered on M otion:

Q: May th e c o u rt upon Its own m o tion refer th e case to

a com m issioner?
A: Yes, when the parties do not consent, the court may,
upon the application of either or of its own motion, direct a
reference to a commissioner.

P rocedural Basis:

Sec. 2, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure provides for the rule on motu
proprio reference of the case to the commissioner. It states
that:
“S ec. 2. Reference ordered on motion. — When
th e parties do n ot c o n sen t, th e court m ay, upon th e
application o f either or o f its own m otion , direct a
reference to a com m issioner in th e following cases:
(a) When th e trial o f an issu e o f fact requires
th e exam ination o f a long account on eith er sid e,
in w hich case th e com m issioner m ay be directed to
hear and report upon th e w hole issu e or any sp ecific
q u estion involved therein;
(b) When th e taking o f an account is necessary
for th e inform ation o f th e court before judgm ent, or
for carrying a judgm ent or order into effect;
(c) When a q u estion o f fact, other than upon
th e pleadings, arises upon m otion or otherw ise, in
any stage o f a case, or for carrying a judgm ent or
order in to e ffect.”

10) Sec. 7, Rule 41. Approval o f th e R ecord on Appeal:*5

Q: May th e co u rt upon its own m otion approved th e

record on appeal?
A: Yes, if no objection is filed by the appellee within five
(5) days from receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion.
62 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 7, Rule 41 of th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio approval of the record on
appeal. It states that:
“Sec. 7. A pproval o f record on appeal. — Upon
th e filing o f th e record on appeal for approval and If
no objection is filed by th e appellee w ithin five (5)
days from receipt o f a copy thereof, th e trial court
m ay approve it as presented or upon its own m otion
or at th e in stan ce o f th e appellee, m ay direct its
am endm ent by th e in clu sion o f any om itted m atters
w hich are deem ed e sse n tia l to th e determ ination of
th e issu e o f law or fact involved in th e appeal. If th e
trial court orders th e am endm ent o f th e record, th e
appellant, w ithin th e tim e lim ited in th e order, or
such ex ten sio n th ereof as m ay be granted, or if no
tim e is fixed by th e order w ithin ten (10) days from
receipt thereof, shall redraft th e record by including
therein, in th eir proper chronological sequ en ce, such
additional m atters as th e court m ay have directed
him to incorporate, and shall thereupon subm it th e
redrafted record for approval, upon n o tice to th e
appellee, in lik e m anner as th e original draft.”

11) Sec. 13, Rule 41. D ism issal o f Appeal:

Q: May th e co u rt m o tu p r o p r io dism iss an appeal?

A: Yes, the trial court may motu proprio or on motion dismiss
the appeal for having been taken out of time.

P rocedural Basis:
Sec. 13, Rule 41 o f th e 1997 Rules on Civil P rocedure
provides for the rule on motu proprio dismissal of the appeal
prior to transmittal of the original record. It states that:
“Sec. 13. D ism issal o f a p p e a l — Prior to the
transm ittal o f th e original record or th e record on
appeal to th e appellate court, th e trial court m ay
 CHAPTER I 63
I. DEFINITION OF TERMS

m otu propio or on m otion dism iss th e appeal for

having been taken ou t o f tim e."

12) Sec. 6, Rule 44. D ispensing w ith C om plete Record:

Q: May th e c o u rt on its own m o tion ord er th a t th e

records, tra n sc rip t an d ex h ib its are su fficien t to decide
th e issu e on appeal?
A: Yes, the court, on its own motion or on motion of any of
the parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to
decide the issues raised in the appeal.

P rocedural Basis:

Sec. 6, Rule 44 o f th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio declaration of the
sufficiency of the issue on appeal. It states that:
“Sec. 6. D ispensing w ith com plete record. —
Where th e com p letion o f th e record could n ot be
accom plish ed w ithin a su fficien t period allotted for
said purpose due to insuperable or extrem ely difficult
cau ses, th e court, on its own m otion or on m otion
o f any o f th e parties, m ay declare th at th e record
and its accom panying transcripts and exhibits so far
available are su fficien t to decide th e issu e s raised in
th e appeal, and shall issu e an order explaining th e
reasons for su ch declaration.”

13) Sec. 5, Rule 45. D ism issal o r Denial o f P etition:

- - I
Q: May th e S uprem e C ourt on its own in itiativ e dism iss
th e p e titio n for review on c e rtio ra ri?
A: Yes, the Supreme Court may on its own initiative deny/
dismiss the petition on the ground that the appeal is without
merit, or is prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require
consideration and for failure to comply with the requirements.
64 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 5, Rule 45 of th e 1997 Rules on Civil Procedure

provides for the rule on motu proprio denial of the petition. It
states that:
"See. 5. D ism issal or d en ial o f p etitio n . — The
failure o f th e p etition er to com ply with any o f th e
foregoing requirem ents regarding th e paym ent o f th e
docket and other lawful fees, deposit for c o sts, proof
o f service o f th e p etition , and th e con ten ts o f and
th e docum ents which should accom pany th e petition
shall be sufficient ground for th e dism issal thereof.
The Suprem e Court m ay on its own in itiative deny
th e p etition on the ground th at th e appeal is w ithout
m erit, or is prosecuted m anifestly for delay, or that
th e q u estions raised therein are too unsubstantial to
require consideration.”

14) Sec. 5, Rule 46. A ction by th e Court:

Q: May th e co u rt dism iss th e p etitio n o u trig h t in cases

u n d er Rule 65 and 66?
A: Yes, the court may dismiss the petition outright with
specific reasons for such dismissal.

Procedural Basis:

Sec. 5, Rule 46 o f th e 1997 Rules on Civil Procedure

provides for the rule on motu proprio denial of the petition
under Rules 65 and 66. It states that:
“Sec. 5. Action by th e court. — Th«? g u i l t may
dism iss th e p etition outright w ith sp ecific reasons
for such dism issal or require th e respondent to file
a com m ent on th e sam e w ithin ten (10) days from
n otice. Only pleadings required by th e court shall be
allowed. All other pleadings and papers, m ay be filed
only w ith leave o f court.”
 CHAPTER I 65
I. DEFINITION OF TERMS

15) Sec. 5, Rule 47. A ction by th e Court:

Q: May th e co u rt o u trig h tly dism iss th e p e titio n for

a n n u lm en t of ju d g m en t?
A: Yes, if the court finds no substantial merit in the petition,
the same may be dismissed outright with specific reasons for
such dismissal.

P rocedural Basis:

Sec. 5, Rule 47 o f th e 1997 Rules on Civil Procedure

provides for the rule motu proprio deny the petition. It states
that:
"Sec. 5. Action by th e court. — Should th e court
find no substantial m erit in th e p etition , th e sam e
m ay be d ism issed outright w ith sp ecific reasons for
su ch d ism issal.”

16) Sec. 1, Rule 49. Oral A rgum ent:

Q: May th e c o u rt a t its own in stan ce h ear th e p a rtie s on

oral arg u m en t on th e m erits o f th e case?
A: Yes, at its own instance or upon motion of a party, the
court may hear the parties in oral argument on the merits of
a case, or on any material incident in connection therewith.

P rocedural Basis:

Sec. 1, Rule 49 o f th e 1997 Rules on Civil Procedure)

provides for the rule on motu proprio hearing of the parties for
oral arguments. It states that:
“Sec. 1. When allow ed. — At its own in stan ce
or upon m otion o f a party, th e court m ay hear th e
parties in oral argum ent on th e m erits o f a case, or on
any m aterial in cid en t in con n ection therew ith, (n)
The oral argum ent shall be lim ited to such
m atters as th e court m ay sp ecify in its order or
resolu tion .”
66 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

17) Sec. 1, Rule 50. G round for D ism issal of Appeal:

Q: May th e C ourt o f Appeals on its own m otion dism iss

th e appeal filed before it?
A: Yes, an appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the appellee.

Procedural Basis:

Sec. 1, Rule 50 o f th e 1997 Rules on Civil Procedure

provides for the rule on motu proprio dismissal of appeal by
the Court of Appeals based on the grounds stated therein. It
states that:
“Sec. 1. Grounds fo r d ism issa l o f appeal. —
An appeal m ay be dism issed by th e Court o f
Appeals, on its own m otion or on th a t o f th e appellee,
on th e following grounds:
(a) Failure o f th e record on appeal to show on
its face th at th e appeal was taken w ithin th e period
fixed by th e se Rules;
(b) Failure to file th e n otice o f appeal or the
record on appeal w ithin th e period prescribed by
th e se Rules;
(c) Failure o f th e appellant to pay th e docket
and other lawful fees as provided in se ctio n 5, Rule
4 0 and se ctio n 4 o f Rule 41; (Bar M atter No. 8 0 3 , 17
February 1998)
(d) Unauthorized alterations, om ission s or
additions in th e approved record on appeal as provided
in se ctio n 4 o f Rule 44;
(e) Failure o f th e appellant to serve and file th e
required number o f cop ies o f h is brief or m em orandum
w ithin th e tim e provided by th e se Rules;
(f) Absence o f sp ecific assignm ent o f errors
in th e appellant’s brief, or o f page references to th e
record as required in sectio n 13, paragraphs (a), (c),
(d) and (f) o f Rule 44;
(g) Failure o f th e appellant to take th e necessary
ste p s for th e correction or com p letion o f th e record
w ithin th e tim e lim ited by th e court in its order;
 CHAPTER I 67
I. DEFINITION OF TERMS

(h) Failure o f th e appellant to appear at th e

prelim inary conference under Rule 4 8 or to com ply
w ith orders, circulars, or directives o f th e court
w ithout justifiable cause; and
(i) The fact th at th e order or judgm ent appealed
from is n ot appealable.”

[18) toSec.th e2,CRule 50. D ism issal o f Im proper Appeal

ourt o f Appeals;_____________________

Q: May th e C ourt o f Appeals dism iss o u trig h t an

erroneous appeal?
A: Yes, an appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but shall be
dismissed outright.

I^P ro ced u r^B asis:

Sec. 2, Rule 50 o f th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio dismissal of erroneous
appeal to the Court of Appeals. It states that:
“S ec. 2 . D ism issal o f im proper a p p ea l to th e
Court o f A ppeals. — An appeal under Rule 41 taken
from th e Regional Trial Court to th e Court o f Appeals
raising only q u estion s o f law shall be d ism issed, issu e s
purely o f law n ot being reviewable by said court.
Sim ilarly, an appeal by n o tice o f appeal in stead o f by
p etitio n for review from th e appellate judgm ent o f a
Regional Trial Court shall be dism issed.
An appeal erroneously tak en to th e Court o f
Appeals shall not be transferred to th e appropriate
court hut ■hall be dism issed outright.”

19) Sec. 5, Rule 56. G rounds for D ism issal o f Appeal to

th e S uprem e Court;_____________________________

Q: May th e S uprem e C ourt m o tu p r o p r io dism iss an

appeal filed before it?
68 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Yes, the Supreme Court may dismiss the appeal motu

proprio or on motion of the respondent based on the ground
provided under Sec. 5, Rule 56.

jjjPProcedural
ro c e Basis:
Sec. 5, Rule 56 of th e 1997 Rules on Civil Procedure
provides for the rule on motu proprio dismissal of the petition
by the Supreme Court. It states that:
wSec. 5. Grounds fo r d ism issa l o f a p p e a l — The
appeal m ay be dism issed motu proprio or on m otion
o f th e respondent on th e following grounds:
(a) Failure to take th e appeal w ithin the regle-
m entary period;
(b) Lack of m erit in th e petition;
(c) Failure to pay th e requisite docket fee and
other lawful fees or to m ake a deposit for costs;
(d) Failure to com ply w ith th e requirem ents
regarding proof o f service and c o n ten ts o f and th e
docum ents w hich should accom pany th e petition;
(e) Failure to com ply w ith any circular,
directive or order of th e Supreme Court w ithout
justifiable cause;
(f) Error in th e ch oice or m ode o f appeal; and
(g) The fact th at th e case is not appealable to
th e Suprem e Court.”

20) Sec. 8, Rule 59. T erm ination o f R eceivership:

Q: Can th e co u rt m o tu p r o p r io te rm in a te receivership?
A: Yes, the court, motu proprio or on motion of either party,
shall determine the necessity for a receiver no longer exists.

Sec. 8, Rule 59 o f th e 1997 Rules on Civil Procedure

provides for the rule on motu proprio determination of
necessity of termination of receivership. It states that:
 CHAPTER I 69
I. DEFINITION OF TERMS

“Sec. 8. Term ination o f receivership; com pen­

sa tio n o f receiver. — W henever th e court, m otu
proprio or on m otion o f eith er party, shall determ ine
th a t th e n e c e ssity for a receiver no longer e x ists, it
shall, after due n otice to all in terested parties and
hearing, se ttle th e accou n ts o f th e receiver, direct
th e delivery o f th e funds and other property in his
p o ssessio n to th e person adjudged to be en titled to
receive th em and order th e discharge o f th e receiver
from further duty as such. The court shall allow
th e receiver such reasonable com p en sation as th e
circu m stan ces o f th e case warrant, to be taxed as
c o s ts against th e defeated party, or apportioned, as
ju stic e requires.”

21) Sec. 5, Rule 61. E n forcem ent O rder in Support

P e n d e n te L ite:

Q: Can th e c o u rt m o tu p r o p r io issu e w rit of execution in

case o f su p p o rt p e n d e n te lite ?
A: Yes, the court shall, motu proprio or upon motion issue
an order of execution against the defendant for failure to
comply with the order of support pendente lite.

P rocedural Basis:

Sec. 5, Rule 61 o f th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio issuance of writ of
execution to enforce order of support pendente lite. It states
that:
“S ec. 5. Enforcement o f order. — If th e adverse
party fails to com ply w ith an order granting support
pendente lite , th e court shall, m otu proprio or upon
m otion; issu e an order o f execu tion against him ,
w ith ou t prejudice to h is liability for co n tem p t.”

22) Sec. 5, Rule 63. C ourt A ction D iscretionary in

D eclaratory Relief:

Q: Can th e c o u rt m o tu p r o p r io refuse to exercise th e

pow er to c o n stru e rig h ts o r c o n stru e in stru m e n t?
70 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Yes, the court, motu proprio or upon motion, may refuse

to exercise the power to declare rights and to construe
instruments in case the decision will not terminate the
controversy or the construction is not necessary.

Sec. 5, Rule 63 o f th e 1997 Rules on Civil Procedure

provides for the on rule motu proprio refusal of the court to
declare rights and construe instruments. It states that:
"Sec. 5. Court action discretionary. — Except in
action s falling under th e second paragraph o f section
1 o f th is Rule, the court, motu proprio or upon m otion,
m ay refuse to exercise th e power to declare rights and
to construe instrum ents in any case where a decision
would not term inate th e uncertainty or controversy
w hich gave rise to th e action, or in any case where
th e declaration or construction is not necessary and
proper under the circum stances.”

23) Sec. 6, Rule 64. O rder to Com m ent-D ism issal

of P etition:

Q: Can th e Suprem e C ourt dism iss th e p etitio n for

certio rari u n d er Rule 64 o u trig h t if n o t sufficient in form
and su b stan ce?
A: Yes, the Court may dismiss the petition outright, if it
finds that the petition is not sufficient in form and substance
or if it was filed manifestly for delay or the questions raised
are too unsubstantial to warrant further proceedings.

Procedural Basis:

Sec. 6, Rule 64 o f th e 1997 Rules on Civil Procedure

provides for the rule on motu proprio dismissal of the petition.
It states that:
"Sec. 6. Order to comment. — If th e Supreme
Court finds th e petition sufficient in form and
 CHAPTER I 71
I. DEFINITION OF TERMS

su b stance, it shall order th e respondents to file their

com m en ts on th e p etitio n w ithin ten (10) days from
n o tice thereof; otherw ise, th e Court m a y d ism iss
th e p e titio n o u tr ig h t. The Court m ay also dism iss
th e p etitio n if it w as filed m anifestly for delay or th e
q u estion s raised are to o unsubstantial to warrant
further proceedings.”

24) Sec. 8, Rule 65. P roceeding after C om m ent is Filed:

Q: May th e co u rt m o tu p r o p r io im pose disciplinary

san ctio n s ag ain st errin g law yers u n d er Rule 65?
A: Yes, the Court may impose motu proprio other disciplinary
sanctions or measures on erring lawyers for patently dilatory
and unmeritorious petitions for certiorari.

P rocedural Basis:

Sec. 8, Rule 65 o f th e 1997 Rules on Civil P rocedure

provides for the rule motu proprio imposition of sanctions or
measures against erring lawyers. It states that:
"See. 8. P roceedin g a f te r com m en t is f ile d . —
x x x x a.
The court m ay im pose m otu p ro p rio , based on
re s ip s a loqu itu r, other disciplinary san ction s or
m easures on erring lawyers for paten tly dilatory and
unm eritorious p etitio n s for c e rtio ra ri.”

25) Sec. 7, Rule 70. Effect o f Failure to Answer:

Q: May th e co u rt m o tu p r o p r io ren d er ju d g m en t for

failure to file answ er u n d er Rule 7 0 ?
A: Yes, the Court motu proprio or on motion of the plaintiff,
shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for
therein.
72 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 7, Rule 70 o f th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio rendition of judgment. It
states that:
“Sec. 7. E ffect o f fa ilu re to answer. — Should
th e defendant fail to answer th e com plaint w ithin the
period above provided, th e court, motu proprio or on
m otion o f th e plaintiff, shall render judgm ent as m ay
be warranted by th e facts alleged in th e com plaint
and lim ited to w hat is prayed for therein. The court
m ay in its discretion reduce th e am ount o f dam ages
and attorney’s fees claim ed for being ex cessiv e or
otherw ise unconscionable, w ithout prejudice to th e
applicability o f sectio n 3 (c), Rule 9 if there are two or
m ore defendants.”

26) Sec. 4, Rule 71. How Proceedings Com m enced:

Q: May th e proceedings for in d irec t co n te m p t be

in itia te d m o tu p r o p r io ?
A: Yes, the proceedings for indirect contempt may be
initiated motu proprio by the court against the person who
committed the contemptuous act.

P rocedural Basis:

Sec. 4 , Rule 70 of th e 1997 Rules on Civil P rocedure

provides for the rule on motu proprio initiation of the court of
contempt. It states that:
“Sec. 4. How proceedings commenced. —
Proceedings for indirect con tem p t m ay be in itia te d
motu propio by th e court against w hich th e con tem p t
w as com m itted by an order or any other formal
charge requiring th e respondent to show cause why
he should n o t be punished for con tem p t.”
 CHAPTER I 73
I. DEFINITION OF TERMS

B. M otu Proprio O rders/A ctio n o f th e C ourt u n d er

Special Rules:___________________________________

1) Rules on Sum m ary Procedure:

a) Sec. 4. D uty o f th e Court:

Q: Can th e c o u rt dism iss th e case o u trig h t based on th e

grounds for th e dism issal of th e actio n u n d er th e Rules
on S um m ary P rocedure?
A: Yes, if from an examination of the allegations therein
and such evidence as may be attached thereto, dismiss the
case outright on any of the grounds apparent therefrom for
the dismissal.*I
P rocedural Basis:

Sec. 4 o f th e Rules o n Sum m ary Procedure provides

for the rule on motu proprio dismissal of the action. It states
that:
“Sec. 4. Duty o f court . — Alter the court determ ines
that the case falls under summary procedure, it may,
from an exam ination of th e allegations therein and such
evidence as may be attached thereto, dism iss the case
outright on any o f th e grounds apparent therefrom for
th e iti«ml«uuil of a civil action. If no ground for dismissal
is found it shall forthwith issu e sum m ons which shall
state that th e summary procedure under th is Rule shall
apply.”

I b) Sec^ 6 ^ 5 ffe ^ to Answer^

Q: May th e c o u rt m o tu p r o p r io ren d er ju d g m e n t u nder

th e Rules on S um m ary P rocedure?
A: Yes, if the defendant fails to answer the complaint
within the period above provided, the court, motu proprio, or
74 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

on motion of the plaintiff, shall render judgment as may be

warranted by the facts alleged in the complaint and limited to
what is prayed for therein.

Procedural Basis:

Sec. 6 of th e Rules on Sum m ary P rocedure provides

for the rule on motu proprio rendition of judgment by the
court. It states that:
u8ec. 6. E ffect o f fa ilu re to answer. — Should
th e defendant fail to answer th e com plaint w ithin th e
period above provided, th e court,, motu proprio. or on
m otion o f th e plaintiff, shall render judgm ent as may
be warranted by th e facts alleged in th e com plaint
and lim ited to what is prayed for therein: Provided,
however, th a t th e court m ay in its discretion reduce
th e am ount o f dam ages and attorney’s fees claim ed
for being excessive or otherw ise unconscionable. This
is w ithout prejudice to th e applicability o f Section 4,
Rule 15 o f th e Rules o f Court, if there are two or more
defendants.”

2) Rules of Procedure on E nvironm ental Cases (A.M.

No. 09-6-6-8-SC): __________________________

a) Sec. 4. M onitoring o f Com pliance w ith Ju d g m en t

and O rders of th e C ourt by a C om m issioner:______

Q: May th e co u rt m o tu p r o p r i o order th e enforcem ent of

th e ju d g m en t o r referral o f th e case to th e C om m issioner
u n d er th e Special Rules on E nvironm ental C ases?
A: Yes, the court m ay motu proprio order that the enforcement
of the judgment or order be referred to a commissioner to be
appointed by the court.

Procedural Basis:

Sec. 4, Rule 2 o f th e Rules of Procedure in

E nvironm ental Cases provides for the rule on motu proprio
 CHAPTER I 75
I. DEFINITION OF TERMS

order to enforce the judgment or referral to the commissioner.

It states that:
“S ec. 4 . M onitoring o f co m p lia n ce w ith ju d g m e n t
a n d orders o f th e co u rt b y a com m ission er. — The
court m a y m otu p ro p rio . or upon m otion o f th e
prevailing party, order th at th e enforcem ent o f th e
judgm ent or order be referred to a com m issioner to be
appointed by th e court. The com m issioner shall file
w ith th e court w ritten progress reports on a quarterly
b asis or m ore frequently w hen necessary.

b) Sec. 15. Rule 2. Effect of Failure to Answer. Default:

Q: May th e c o u rt m o tu p r o p r io declare th e d efendant in

default u n d er th e Special Rules on E nvironm ental C ases?
A: Yes, in case defendant fails to file his answer, the court
shall declare defendant in default and upon motion of the
plaintiff, shall receive evidence ex-parte.

P rocedural Basis:

Sec. 15, Rule 2 o f th e Rules of P rocedure in

E nvironm ental Cases provides for the rule on motu proprio
declaration of default by the court. It states that:
“S ec. 15. E ffect o f fa ilu r e to an sw er. — Should
th e defendant fail to answer th e com plaint w ithin th e
period provided, th e c o u rt s h a ll d e c la re d e fe n d a n t in
d e fa u lt and upon m otion o f th e plaintiff, shall receive
evid en ce ex-parte.”

c) Sec. 3. Rule 5. Ju d g m e n t an d E xecution:

Q: May th e co u rt by itse lf m o n ito r th e execution of

th e ju d g m en t u n d er th e Special Rules on E nvironm ental
C ases?
A: Yes, the court may, by itself or through the appropriate
government agency, monitor the execution of the judgment
in case of permanent protection order of writ of continuing
mandamus.
76 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

| Procedural Basis:

Sec. 3, Rule 5 of th e Rules of Procedure in

E nvironm ental Cases provides for the rule on motu proprio
monitoring of judgment of permanent protection order in writ
of continuing mandamus. It states that:
*Sec. 3. Perm anent EPO; w rit o f continuing
mandamus. — In th e judgm ent, th e court may
convert th e TEPO to a perm anent EPO or issu e a writ
o f continuing mandam us directing th e performance
o f acts w hich shall be effective until th e judgm ent is
fully satisfied.
The court may, bp its e lf or through th e appropriate
governm ent agency, m onitor th e execu tion o f th e
judgm ent and require th e party concerned to subm it
w ritten reports on a quarterly basis or sooner as may
be necessary, detailing th e progress o f th e execution
and satisfaction o f th e judgm ent. The other party may,
at its option, subm it its com m ents or observations on
th e execu tion o f the judgm ent.”

jj^dj^Sec. 7. Rule 8. Writ ofX ontinuing^ilandam us: J

Q: May th e co u rt by itse lf m o n ito r com pliance of th e
ju dg m en t on th e co n tinuing m andam us u nder th e Special
Rules on E nvironm ental Cases?
A: Yes, as expressly mandated by Sec. 7, Rule 8, the court
may, by itself or through a commissioner or the appropriate
government agency, evaluate and monitor compliance of the
judgment on the continuing mandamus.

|jP ro c e d u ra lB a si^

Sec. 7, Rule 8 of th e Rules of Procedure in

E nvironm ental Cases provides for the rule on motu proprio
order the monitoring of compliance on the judgment in
continuing mandamus. It states that:
‘S e c . 7. Judgment. — If warranted, th e court shall
grant th e privilege o f th e writ o f continuing mandam us
requiring respondent to perform an act or series of
 CHAPTER I 77
I. DEFINITION OF TERMS

a c ts u n til th e judgm ent is fully satisfied and to grant

such other reliefs as m ay be warranted resulting from
th e wrongful or illegal a c ts o f th e respondent. The
court shall require th e respondent to subm it periodic
reports detailin g th e progress and execu tion o f th e
judgm ent, and th e c o u rt m ay, b y i t s e l f OT through a
com m ission er or th e appropriate governm ent agency,
evaluate and m onitor com pliance. The p etition er
m ay subm it its com m en ts or observations on th e
execu tion o f th e judgm en t.”

3) R ules on DNA Evidence:

a) Sec. 4. A pplication for DNA te stin g Order:

Q: May th e co u rt m o tu p r o p r i o order DNA T esting a

perso n who h as a legal in te re s t in th e su b ject m a tte r of
th e case u n d er DNA Evidence R ule?
A: Yes, as expressly mandated by Sec. 4, the appropriate
court may, at any time, either motu proprio or on application of
any person who has a legal interest in the matter in litigation,
order a DNA testing.

P rocedural Basis:

Sec. 4 o f th e DNA Evidence Rule provides for the rule

on motu proprio order DNA testing. It states that:
M8 ec. 4. A p p lic a tio n f o r DNA T estin g Order. —
The appropriate court m ay, at any tim e, e ith e r m otu
p ro p rio or on application o f any person who has a
legal in terest in th e m atter in litigation , order a DNA
testin g . Such order sh all issu e after due hearing and
n otice to th e parties upon a show ing o f th e following:
A biological sam ple e x ists th a t is relevant to th e
case;
The biological sam ple: (i| w as n ot previously
subjected to th e type o f DNA testin g now requested;
or (ii) was previously subjected to DNA testin g , but the
resu lts m ay require confirm ation for good reasons;
78 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The DNA testin g u ses s scien tifically valid

technique;
The DNA testin g has the scien tific potential
to produce new inform ation that is relevant to the
proper resolution o f th e case; and
The existen ce o f other factors, if any, which
the court m ay consider as potentially affecting the
accuracy of integrity o f th e DNA testin g.
This Rule shall n ot preclude a DNA testin g,
w ithout need o f a prior court order, «t th e behest o f
any party, including law enforcem ent agencies, before
a su it or proceeding is com m enced.”

■i|
Rules on E xam ination of Child Witness:
*e* * i

C om petency Test: (2015 Bar Exam ination)

Q: May th e court m o tu p ro p rlo conduct com petency te st

on th e child w itness under th e Child Witness Examination
Rule?
A: Yes, as expressly mandated by Sec. 4 of the Rule, the
court shall conduct a competency examination of a child,
motu proprio or on motion of a party.

[ ProceduralBasisTI

Sec. 6 o f th e Rules on Exam ination of Child W itness

provides for the rule on motu proprio conduct a competency
examination on the child witness. It states that:
“Sec. 6. Competency. — Every child is presumed
qualified to be a w itn ess. However, th e court shall
conduct a com petency exam ination o f a child, m otu
proprio or on m otion o f a party, when it finds that
substantial doubt e x ists regarding th e ability of
th e child to perceive, remember, com m unicate,
distinguish truth from falsehood, or appreciate th e
duty to tell th e truth in court, xxx”
 CHAPTER I 79
I. DEFINITION OF TERMS

b) A ppointm ent o f In te rp re te r for th e Child:

Q: May th e c o u rt m o tu p r o p r lo ap p o in t an in te rp re te r
for th e child w itn ess u n d er th e Child W itness E xam ination
R ule?
A: Yes, as expressly mandated by Sec. 9 of the Rule, the
court, motu_proprio or upon motion, appoint an interpret for
the child.

P rocedural Basis:

Sec. 9 o f th e Rules on E xam ination of Child W itness

provides for the rule on motu proprio appointment of an
interpreter for the examination on the child witness. It states
that:
“Sec. 9 . In terpreter fo r child. —
(a) When a child d oes n ot understand th e English
or Filipino language or is unable to com m unicate
in said languages due to h is developm ental level,
fear, sh y n ess, disability, or other sim ilar reason, an
interpreter whom th e child can understand and who
understands th e child m ay be appointed by th e courtr
motu proprio or upon m otion, to interpret for th e
child, xxx”

c) Sec. 10. A ppointm ent of F acilitato r to Pose U

Que8tion_to_Chihk________________________ |

Q: May th e co u rt m o tu p r o p r io ap p o in t a facilitato r for

th e child w itn ess u n d er th e Child W itness E xam ination
Rule?
A: Yes, as expressly mandated by Sec. 10 of the Rule, the
court may, motu proprio or upon motion, appoint a facilitator
if it determines that the child is unable to understand or
respond to questions asked.
80 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 10 o f th e Rules on E xam ination of Child W itness

provides for the rule on motu proprio appointment of a
facilitator to assist the child witness during for examination.
It states that:
"See. 10. F acilitator to p o se questions to child.

(a) The court may, motu proprio or upon

m otion, appoint a facilitator if it determ in es th at th e
child is unable to understand or respond to q u estions
asked. The facilitator m ay be a child p sychologist,
p sychiatrist, social worker, guidance counselor,
teacher, religious leader, parent, or relative, xxx”

E Sec. 23. Exclusion of th e Public:

Q: May th e c o u rt m o tu p r o p r io exclude th e public from

th e c o u rt room during ex am in atio n of th e child w itness
u n d er th e Child W itness E x am ination R ule?
A: Yes, as expressly mandated by Sec. 23 of the Rule,
the court, may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during trial is of
such character as to be offensive to decency or public morals.

P rocedural Basis:
Sec. 23 o f th e Rules on E xam ination of Child W itness
provides for the rule on motu proprio exclusion of the public
during the examination of the child witness. It states that:
uSec. 23. Excluding th e public. — When a child
te stifie s, th e court m ay order th e exclusion from th e
courtroom o f all persons, including m em bers o f th e
press, who do not have a direct in terest in th e case.
Such an order m ay be m ade to protect th e right to
privacy o f th e child or if th e court determ in es on
th e record th a t requiring th e ch ild to te stify in open
court would cause psychological harm to him , hinder
th e ascertain m ent o f truth, or result in h is inability
to effectively com m unicate due to em barrassm ent,
 CHAPTER I 81
I. DEFINITION OF TERMS

fear, or timidity. In making its order, the court shall

consider the developmental level of the child, the
nature of the crime, the nature of his testimony
regarding the crime, his relationship to the accused
and to persons attending the trial, his desires, and
the interests of his parents or legal guardian. The
court may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during trial
is of such character as to be offensive to decency or
public morals. The court may also, on motion of the
accused, exclude the public from trial, except court
personnel and the counsel of the parties.”

e) Sec. 31(c). A dditional P rotective Orders:

Q: May th e c o u rt m o tu p r o p r io issue additional

p ro tectiv e o rd ers for th e child w itn ess u n d er th e Child
W itness E xam ination R ule?
A: Yes, as expressly mandated by Sec. 31(c) of the Rule,
the court, may, motu proprio, or on motion issued additional
protective orders to protect the privacy of the child.

P rocedural Basis:

Sec. 31(c) o f th e Rules on E xam ination o f Child

W itness provides for the rule on motu proprio issuance of a
protection order. It states that:
“(c) Additional protective orders. — The court
m ay, m otu proprio or on motion of any party, the
child, his parents, legal guardian, or the guardian ad
litem, issue additional orders to protect the privacy
of the child.”

5) Rules on Writ o f Amparo (A.M. No. 07-0-12-SC):

a) Sec. 14. In te rim Reliefs:

82 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a .l) Sec. 14(a) Tem porary P ro tectio n Order:

Q: May th e c o u rt m o tu p r o p r io issue a tem porary

p ro te ctio n o rder for a p arty or p erso n u n d er th e Rules on
Writ o f Am paro?
A: Yes, as expressly mandated by Sec. 14(a) of the Rule,
the court, justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved party and any
member of the immediate family be placed under temporary
protection order.

P rocedural Basis:

Sec. 14 (a) of th e Rules on W rit of Amparo provides

for the rule on motu proprio issuance of temporary protection
order. It states that:
MSec. 14. Interim Reliefs. — Upon filing o f th e
p etition or at any tim e before final judgm ent, the
court, ju stic e or judge m ay grant any o f th e following
reliefs:
(a) Temporary Protection Order. — The court,
ju stic e or judge, upon m otion or motu proprio . m ay
order th at th e p etition er or th e aggrieved party and
any m em ber o f th e im m ediate fam ily be protected in
a governm ent agency or by an accredited person or
private in stitu tio n capable o f keeping and securing
their safety. If th e p etition er is an organization,
association or in stitu tio n referred to in S ection 3(c)
o f th is Rule, the protection m ay be extend ed to the
officers involved, xxx”

a .2) Sec. 14(d) W itness P ro tectio n Order:

Q: May th e c o u rt m o tu p r o p r io issue a w itn ess p ro tectio n

order u n d er th e Rules on W rit o f Am paro?
A: Yes, as expressly mandated by Sec. 14(d) of the same
Rule, the court, justice or judge, upon motion or motu proprio,
 CHAPTER I 83
I. DEFINITION OF TERMS

may refer the witnesses to the Department of Justice for

admission to the Witness Protection, Security and Benefit
Program.

Sec. 14 (d) o f th e Rule* on W rit o f Amparo provides for

the rule on motu proprio issuance of witness protection order.
It states that:
“(d) W itness P rotection Order. — The court,
ju stic e or judge, upon m otion or m otu p ro p rio t m ay
refer th e w itn esses to th e Departm ent o f J u stic e for
adm ission to th e W itness P rotection, Security and
B enefit Program, pursuant to Republic Act No. 6 9 8 1 .”

| b) Sec. 20 on Archiving a n d R c v iv a lo f Cases:

Q: Can th e co u rt o rder th e revival o f th e case u n d er th e

Rules on W rit o f Am paro?
A: The amparo court shall motu proprio or upon motion
by any party, order their revival of the case when ready for
further proceedings.

Sec. 20 o f th e Rules on W rit o f Amparo provides for

the rule on motu proprio revival of the proceeding. It states
that:
“Sec. 2 0 . A rch ivin g a n d R evival o f C ases. — The
court shall n ot d ism iss th e p etition , but shall archive
it, if upon its determ ination it cannot proceed for
a valid cause such as th e failure o f p etition er or
w itn esses to appear due to th reats on th eir lives.
A periodic review o f th e archived c a ses shall be
m ade by th e a m p a ro c o u rt t h a t sh a ll, m otu p ro p rio
or upon m otion by any party, order their revival when
ready for further proceedings. The p etition shall be
dism issed w ith prejudice upon failure to prosecute
84 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e case after th e lapse o f two (2) years from n otice to

th e petitioner."

6) 2016 Rules on Sm all Claim s Cases:

a) Sec. 11. D ism issal o f Claims:

Q: May th e co u rt m o tu p r o p r io dism iss th e case u n d er

th e 2016 Revised Rules on Sm all Claim s C ases?
A: Yes, as expressly mandated by Sec. 11 of the Rule, after
the court determines that the case falls under this Rule, it
may, from an examination of the allegations of the Statement
of Claim/s and such evidence attached thereto, by itself,
dismiss the case outright on any of the grounds for the
dismissal of the case.

Procedural Basis:

Sec. 11 of th e 2016 Revised Rules on Small Claims

Case provides for the rule on motu proprio dismissal of the
case. It states that:
“Sec. 11. D ism issa l o f th e Claim . — After the
court determ ines th at th e case falls under th is Rule,
it m ay, from an exam ination o f th e allegations o f th e
S tatem ent o f C laim /s and su ch evidence attached
th ereto, b y its e lf, d is m is s th e c a se o u trig h t on a n v o f
th e grou n ds fo r th e d is m is s a l o f th e case.
 CHAPTER II

CONSTITUTIONAL PROVISIONS
RELATIVE TO CIVIL PROCEDURE

EE 3
C o n stitu tio n al Provisions

1. R ight to Due P rocess of Law:

Sec. 1, Art. Ill of th e 1987 C o n stitu tio n provides for

the right of every party litigant to due process of law. It states
that:
“No person shall be deprived o f life, liberty, or
property w ithout due process o f law x x x.”

COMMENTS
Q: W hat is th e E ssence o f Due P rocess?
A: Reasonable opportunity to be heard and submit one’s
evidence in support of his defense.

|j_^ase_Law^_

The essence of procedural due process is found in the

reasonable o p p o rtu n ity to be h eard and su b m it o n e's
evidence in su p p o rt o f h is defense. (PDIC vs. Philippine
Countryside Rural Bank, Inc., G.R. No. 1746438, January 24,
2011, 640 SCRA 322)

85
86 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Is a form al or tria l ty p e hearin g required to com ply

w ith due p ro cess?
A: No, formal or trial type hearing is not essential and what
is required is an opportunity to be heard and explain one’s
side would be enough.

The essen ce o f due pro cess is sim ply an o p p o rtu n ity

to be heard, a formal or trial-type hearing is not essential as
the due process requirement is satisfied where th e p artie s
are afforded fair and reasonable o p p o rtu n ity to explain
th e ir side. (Areno, Jr. vs. Skycable PCC, G.R. No. 180302,
February 5,2010,611 SCRA 721)

Q: W hat is th e purpose o f due p ro cess?

A: It is intended to protect ordinary citizens against arbitrary
government action.

The right to due process is meant to protect ordinary

citizens against arbitrary government action, but not from
acts committed by private individuals or entities. (Jose L.
Atienza, Jr., Mafias V. Defensor, Jr., Rodolfo G. Valencia,
Danilo E. Suarez, Solomon R. Chungalao. Salvation Zaldivar
Perez, Harlin Cast-Abayon, Melvin G. Macusi and Eleazar P.
Quinto vs. COMELEC, Manuel A. Roxas n, Franklin M. Drilon
and J.R. Nereus O. Acosta, G.R. No. 188920, February 16,
2010 )

Q: W hat does due pro cess p ro h ib its?

A: Due process prohibits absolute absence and lack of
opportunity to be heard.

The essence of due process is simply the opportunity to

be heard. What the law prohibits is not the absence of previous
 CHAPTER II 87
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

notice but its absolute absence and lack of opportunity to be

heard. Sufficient compliance with the requirements of due
process exists when a party is given a chance to be heard
through his motion for reconsideration. (Ray Shu vs. Jaime
Dee, Enriqueto Magpantay, Ramon Miranda, Larry Macillan,
and Edwin So, G.R. No. 182573, April 23, 2014, Brian, J.)

Ei 2. R ight to Equal P ro tec tio n before th e Laws:

Sec. 1, Art. Ill o f th e 1987 C o n stitu tio n provides for

the right of a person to equal protection before the laws. It
mandates that —
“x x x Nor any person be denied equal protection
before th e law s.”

COMMENTS
Q: W hat is th e purpose o f th e equal p ro te ctio n clause?
A: Equal protection simply provides that all persons or
things similarly situated should be treated in a similar
manner, both as to rights conferred and responsibilities
imposed.

Case Law:

Equal protection simply provides that all persons or

things similarly situated should be treated in a similar manner,
both as to rights conferred and responsibilities imposed. The
purpose of the equal protection clause is to secure every person
within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a
statute or by its improper execution through the state’s duly
constituted authorities. In other words, the concept of equal
justice under the law requires the state to govern impartially,
and it may not draw distinctions between individuals solely
on differences that are irrelevant to a legitimate government
objective. (Bureau o f Customs Employee Association vs. Teves,
G.R. No. 181704, December 6, 2011)
88 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e tru e essen ce o f equal p ro te ctio n clause?

A: The true essence of equal protection is equality of all
regardless of gender.

Case Law:

The unequal power relationship between women and men,

the fact that women are more likely than men to be victims
of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the
classification under the law. As Justice McIntyre succinctly
states. “[t]he accommodation of differences ... is the essence
of true equality.” (Jesus C. Garcia vs. The Honorable Ray
Alan T. Drilon, Presiding Judge, RTC-Branch 41, Bacolod City,
and Rosalie Jaype-Garcia, For Herself and In Behalf of Minor
Children, Namely: Joann, Joseph Eduardo, Jesse Anthone, All
Sumamed Garcia, Respondents, G.R. No. 179267, June 25,
2013, Perlas-Bemabe, J.)

||^ 3 ^ R ig h t to E m in en t Domain^

Sec. 9, Art. Ill o f th e 1987 C o n stitu tio n provides for

the right of the State to exercise its right to expropriate private
property upon payment of just compensation. It provides
that:
“No private property shall be taken for public use
w ithout paym ent o f ju st com p en sation.”

COMMENTS
Q: W hat is em in en t dom ain?
A: Eminent domain is the power of the State to take private
property for public use.

Case Law:
tmcsB ■
E m in en t dom ain is th e pow er o f th e 8 ta te to tak e
priv ate p ro p erty for public use. It is an in h e re n t power of
 CHAPTER II 89
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

S ta te as it is a pow er n ecessary for th e S ta te ’s existence; it

is pow er th e S ta te can n o t do w ithout. As an inherent power,
it does not need at all to be embodied in the Constitution; if it
is mentioned at all, it is solely for purposes of limiting what is
otherwise an unlimited power. The limitation is found in the
Bill of Rights — that part of the Constitution whose provisions
all aim at the protection of individuals against the excessive
exercise of governmental powers. (Republic o f the Philippines
vs. Sps. Tan Song Bok, G.R. No. 191448, November 16, 2011)

Q: W hat is th e m an d ato ry req u irem en t in case of expro­

p ria tio n proceeding?
A: The mandatory requirement of due process ought to be
strictly followed.

Case Law:

In expropriation, the private owner is deprived of property

against his will. Withal, the mandatory requirement of due
process ought to be strictly followed, such that the state
must show, at the minimum, a genuine need, an exacting
public purpose to take private property, the purpose to be
specifically alleged or least reasonably deductible from the
complaint. (Vda. de Ouano vs. Republic, G.R. No. 168770,
February 9, 2011, 642 SCRA 384)

Q: W hat is th e m eaning o f "com pensable ta k in g ”?

A: Compensable taking includes destruction, restriction,
diminution, or interruption of the rights of ownership or of the
common and necessary use and enjoyment of the property in
a lawful manner, lessening or destroying its value.

|_^Case_^w:

The taking of private property for public use, to be com­

pensable, need not be an actual physical taking or appropriate.
Com pensable tak in g in cludes d estru ctio n , restric tio n ,
d im in u tio n , o r in te rru p tio n o f th e rig h ts of ow nership
or o f th e com m on an d n ecessary use and enjoym ent of
90 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e property in a lawful m anner, lessening or destroying

its value. It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether the
property is removed from the possession of the owner, or in
any respect changes hands. (National Power Corporation vs.
Heirs of Macabangkit Sangkay, G.R. No. 165828, August 24,
2011 )

Q: W hat is th e m eaning o f public use?

A: Public use, as an eminent domain concept, include any
use that is of “usefulness, utility, or advantage, or what is
productive of general benefit of the public.

Case Law:

Public use, as an eminent domain concept, has now

acquired an expansive meaning to include any use that is
of “usefulness, utility, or advantage, or what is productive of
general benefit of the public.” If the genuine public necessity
— the very reason or condition as it were — allowing, at the
first instance, the expropriation of a private land ceases
or disappears, then there is no more cogent point for the
government’s retention of the expropriated land. The same
legal situation should hold if the government devotes the
property to another public use very much different from
the original or deviates from the declared purpose to benefit
another private person. It has been said that the direct use
by the state of its power to oblige landowners to renounce
their productive possession to another citizen, who will use it
predominantly for that citizen’s own private gain, is offensive
to our laws. (Vda. de Ouano vs. Republic, G.R. No. 168770,
February 9,2011, 642 SCRA 384)

4. Right to Free Access to C ourts and Legal A ssistance:

Sec. 11, Art. Ill of th e 1987 C onstitution provides

for the rights of the person to free access to courts and legal
assistance to the underprivileged. It provides that:
 CHAPTER II 91
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

“Sec. 11. Free a c c ess to cou rts and quasi-judicial

bodies and adequate legal a ssista n ce shall not be
denied by reason o f poverty."

COMMENTS
Q: Can a p erso n be denied free access to c o u rt an d legal
a ssistan c e?
A: No, the above-cited provision of the Constitution clearly
states that, free access to courts and quasi-judicial bodies
and adequate legal assistance shall not be denied by reason
of poverty.

l^ J h ^ R ig h t^ to ^ S p e e d y ^

Sec. 16, Art. Ill o f th e 1987 C o n stitu tio n provides for

the rule on the right of the party for the speedy disposition of
cases. It provides that:
“8ec. 16. All person shall have th e right to a
speedy disp osition o f th eir c a ses before all judicial,
quasi-judicial, or adm inistrative bodies."

COMMENTS
Q: W hat are th e facto rs to be d eterm in ed for violation
o f th e rig h t d isp o sitio n o f cases?
A: In determining whether petitioner was deprived of his
right to speedy disposition of cases, the factors to consider
and balance are the following:
(a) Duration of the delay;
(b) Reason therefor;
(c) Assertion of the right or failure to assert it; and
(d) Prejudice caused by such delay. (Mari vs. Gonzales,
G.R. No. 187728, September 12, 2011)
92 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e scope o f th e application of th e rig h t to

speedy disposition of cases?
A: The right to speedy disposition of cases applies to all
proceedings.

Case Law:

The constitutional right to a “speedy disposition of

cases” is not limited to the accused in criminal proceedings
but extends to all parties in all cases, including civil and
administrative cases, and in all proceedings, including
judicial and quasi-judicial hearings. (Roquero vs. Chancellor
ofUP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723)

Q: W hat Is th e m ain objective o f th e rig h t speedy

disposition of cases?
A: The adjudication of cases must not only be done in an
orderly manner that is in accord with the established rules of
procedure but must also be promptly decided to better serve
the ends of justice.

|_C a seJ*a w J

The Constitutional guarantee against unreasonable

delay in the disposition of cases was intended to stem the tide
of disenchantment among the people in the administration
of justice by our judicial and quasi-judicial tribunals. The
adjudication of cases must not only be done in an orderly
manner that is in accord with the established rules of
procedure but must also be promptly decided to better
serve the ends of justice. Excessive delay in the disposition
of cases renders the rights of the people guaranteed by the
Constitution and by various legislations inutile. (Roquero vs.
Chancellor o f UP-Manila, O.R. No. 181851, March 9, 2010, 614
SCRA 723)
 CHAPTER II 93
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

Q: D istin ctio n s Betw een R ight to Speedy D isposition of

Cases an d R ight to Speedy Trial.

Right to Speedy D isposition

o f Cases
a) It is a constitutional right.
b) It is applicable in all c a ­
ses w hether civil, crim inal,
special proceedings, or a d ­
m inistrative cases.
c) It covers the stage from
com m encem ent of th e case
u p to its final term ination.
Right to Speedy Trial
a) It is a statu to ry right.
b) It is a crim inal concept and
therefore it is applicable in
crim inal case.
c) It covers the stage of the
period of presentation of
evidence or trial.

[6. L im itatio n on th e Power o f th e Congress to E nact

Laws:I
I 1 1 1 — - i 11 : '■ " . - ■■■.

Sec. 30, Art. VI o f th e 1987 C o n stitu tio n provides for

the limitation on the power of the Congress to enact laws
thereby increasing the appellate jurisdiction of the Supreme
Court without its advice and concurrence. It states that:
“Sec. 3 0 . No law shall be passed increasing
th e appellate jurisdiction o f th e Suprem e Court as
provided in th is C on stitution w ithout its advice and
concurren ce.”

COMMENTS
Q: W hat is th e lim itatio n on th e power of th e Congress
to e n a c t law s?
A: As expressly mandated by the above provision of the
Constitution that, no law shall be passed increasing the
appellate jurisdiction of the Supreme Court as provided in
this Constitution without its advice and concurrence.
94 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Case Law:

The provision of Sec. 27 of Republic Act No. 6770 (The

Ombudsman Act of 1987) insofar as it allowed a direct appeal
to the Supreme Court was declared unconstitutional being
one which increased the appellate jurisdiction of the Supreme
Court, was enacted without the advice and concurrence of
the Court. (Fabian us. Desierto, 356 SCRA 787)

7. Suprem e C ourt sittin g as P resid ential E lectoral

Tribunal:

Sec. 4, Art. VII o f th e 1987 C o n stitu tio n provides for

the jurisdiction of the Supreme Court regarding all contest
relating to the elections, returns, and qualifications of the
President, and Vice-President. It provides that:
“Sec. 4 . (last par.) The Suprem e Court, sittin g en
banc, shall be th e so le judge o f all c o n te sts relating
to th e electio n , returns and qualifications o f th e
President or V ice-President, and m ay prom ulgate its
rules for th e purpose.”

COMMENTS
Q: W hat are th e pow ers o f th e S uprem e C ourt actin g as
P residential E lectoral T ribunal?
A: The Supreme Court, sitting en banc, acting as Presidential
Electoral Tribunal shall perform the following functions:
a) Act as the sole judge in all contests relating to the
election, returns and qualifications of the President or Vice-
President, and
b) Promulgate its rules for the purpose.

8. Review P roclam ation o f M artial Law and S uspension

o f th e Privilege o f Habeas Corpus:

Sec. 18, Art. VII o f th e 1987 C o n stitu tio n empowers

the Supreme Court to review in an appropriate proceeding the
sufficiency of the factual basis of the proclamation of martial
 CHAPTER II 95
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

law or the suspension of the privilege of the writ of habeas

corpus. It states that:
"See. 18. (third par.) The Suprem e Court m ay
review, in an appropriate proceeding filed by any
c itize n , th e su fficien cy o f th e factual basis o f th e
proclam ation o f m artial law or th e susp en sion o f th e
privilege o f th e writ or th e ex ten sio n thereof, and
m ust prom ulgate its d ecision thereon w ithin th irty
days from its filing.”

COMMENTS
Q: Can th e S uprem e C ourt review th e proclam ation of
m artial law an d su sp en sio n o f th e privilege of th e w rit of
habeas corpus?
A: Yes, the Supreme Court in the exercise of its power to
review shall perform the following:
a) Review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of the writ or
the extension thereof, and
b) Promulgate its decision thereon within 30 days from
its filing.

9. Expanded D efinition o f Ju d ic ia l Power (2007

Bar Exam ination):__________________________

Sec. 5, Art. VIII o f th e 1987 C o n stitu tio n vests judicial

power in one Supreme Court and such lower courts as may
be established by law. It states that:
"Judicial power shall be v ested in one Suprem e
Court and in such lower courts as m ay be establish ed
by law.
Judicial power in clu d es th e duty o f th e courts
o f ju stic e to se ttle actual controversies involving
rights w hich are legally dem andable and enforceable,
and to determ ine w hether or n o t there has been a
grave abuse o f discretion am ounting to lack or
e x c e ss o f ju risdiction on th e part o f any branch or
instru m en tality o f th e G overnm ent.”
96 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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COMMENTS
Q: To w hom ju d icial pow er is lodge?
A: Judicial power is exercised by the following courts:
Judicial power is lodged in the following courts:
1) Supreme Court;
2) Court of Appeals;
3) Sandiganbayan;
4) Court of Tax Appeals;
5) Shari’ah Appellate Courts;
6) Regional Trial Courts;
7) Family Court;
8) Shari’ah District Court;
9) Metropolitan Trial Court, Metropolitan Circuit Trial
Court, and Municipal Trial Courts;
10) Shari’ah Circuit Courts.
Q: W hat is th e expanded d efin itio n of ju d icial pow er?
A: Judicial power includes the power and duty of the court
to settle actual controversies involving rights which are legally
demandable and enforceable; and to determine whether or
not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
Q: W hat is th e req u irem en t in o rder for th e S uprem e
C ourt to exercise ju d icial pow er?
A: Actual controversy m ust exist in order for the Supreme
Court to exercise the power of review.

Case Law:

One of the requirements for this court to exercise its

power of review is the existence of an actual controversy. This
means that there must be “an existing case or controversy
that is appropriate or ripe for determination, not conjectural
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CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

or anticipatory, lest the decision of the court would amount to

an advisory. (In the Matter of Save the Supreme Court Judicial
Independence and Fiscal Autonomy Movement vs. Abolition
o f Judicial Development Fund (JDF] and Reduction of Fiscal
Autonomy, UDK-15143, January 21, 2015)

10. Power o f th e C ongress to Prescribe Ju risd ic tio n of

V arious Courts:

Sec. 2, Art. VIII o f th e 1987 C o n stitu tio n authorizes the

Congress to define, prescribe, and apportion the jurisdiction
of the various courts, but may not deprive the Supreme Court
of its jurisdiction over cases enumerated under Sec. 5 hereof.
It states that:
MSec. 2. The Congress shall have th e power to
define, prescribe, and apportion th e ju risdiction o f
th e various courts but m ay n ot deprive th e Suprem e
Court o f its ju risdiction over ca ses enum erated in
S ection 5 hereof.
No law shall be passed reorganising th e Judiciary
w hen it underm ines th e secu rity o f tenure o f its
M embers.”

COMMENTS
Q: Who h as th e power to prescribe ju risd ic tio n o f various
c o u rts?
A: Under the above provision of Constitution, the Congress
shall have the power to define, prescribe, and apportion the
jurisdiction of the various courts.
Q: W hat are th e lim ita tio n s?
A: The limitations on the power of the Congress to prescribe
the jurisdiction of court are:
a) Congress cannot deprive the Supreme Court of its
jurisdiction over cases enumerated in Sec. 5 of Art. VIII of the
Constitution;
b) No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of its Members.
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11. Cases D ecided by th e Suprem e C ourt E n B a n c :

Sec. 4(2), Art. VIII o f th e 1987 C o n stitu tio n provides

for the cases which shall be decided by the Supreme Court en
banc. It states that:
u2. All ca ses involving th e co n stitu tio n a lity o f a
treaty, international or execu tive agreem ent, or law,
w hich shall be heard by th e Suprem e Court en banc,
and all other ca ses w hich under th e Rules o f Court are
required to be heard en banc, including th o se involving
th e co n stitu tion ality, application, or operation
o f presidential decrees, proclam ations, orders,
in stru ction s, ordinances, and other regulations, shall
be decided w ith the concurrence o f a m ajority o f th e
Members who actually to o k part in th e deliberations
on th e issu es in th e case and voted th ereon .”

COMMENTS
Q: W hat are th e cases falling u n d er th e appellate
ju risd ic tio n or review th e S uprem e C ourt e n b a n c?
A: The cases which will be decided by the Supreme Court
en banc, are as follows:
(1) All cases involving the constitutionality of a treaty,
international or executive agreement, or law; and
(2) All other cases which under the Rules of Court are
required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations.

12. O riginal Ju risd ic tio n o f th e S uprem e Court:

Sec. 5, par. (1), Art. VIII o f th e 1987 C o n stitu tio n

enumerates the cases falling under the original jurisdiction
of the Supreme Court. It states that:
“Sec. 5. The Suprem e Court shall have th e
following powers:
 CHAPTER II 99
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(1) E xercise original ju risdiction over ca ses

affecting am bassadors, other public m in isters and
con su ls, and over p etitio n s for certiorari, prohibition,
m andam us, quo w arranto, and habeas corpus, x x x .”

COMMENTS
Q: W hat are th e Cases Falling u n d er th e O riginal J u ris ­
d ictio n o f th e S uprem e C ourt?
A: The Supreme Court shall have original jurisdiction over
the following cases:
a) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls;
b) Over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
Q: W hat are th e o th e r cases falling u n d er th e ju risd ictio n
of th e S uprem e C ourt?
A: The other cases falling under the jurisdiction of the
Supreme Court, are as follows:
a) Over petition for writs of Amparo, habeas data, writ
of Kalikasan, and writ of continuing mandamus.

E13. Review an d A ppellate Ju risd ic tio n o f th e Suprem e |

Court:

Sec. 5, par. (2), Art. VIII o f th e 1987 C o n stitu tio n

provides for the power of the Supreme Court to review cases
decided by the lower courts. It states that:
“(2) Review, revise, reverse, m odify, or affirm on
appeal or certiorari, as th e law or th e R ules o f Court
m ay provide, Anal judgm en ts and orders o f lower
cou rts in:
(a) All c a ses in w hich th e co n stitu tio n a lity
or validity o f any treaty, international or execu tive
agreem ent, law, presidential decree, proclam ation,
order, in stru ction , ordinance, or regulation is in
question.
100 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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(b) All c a ses Involving th e legality o f any tax,

im post, assessm en t, or to ll, or any penalty im posed
in relation th ereto.
(c) All ca ses in w hich th e jurisdiction o f any
lower court is in issu e.
(d) All crim inal c a ses in w hich th e penalty
im posed is reclusion p erp etu a or higher.
(e) All c a ses in w hich only an error or question
o f law is involved.”

COMMENTS
Q: W hat Cases Falls U nder th e Power of Appellate
Ju risd ic tio n or Review o f th e Suprem e C ourt?
A: The Supreme Court has the power to review, revise,
reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and orders
of lower courts in:
(a) All cases in which the constitutionality or validity
of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court
is in issue.
(d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
(e) All cases in which only an error or question of law is
involved.
Q: W hat is th e req u irem en t to assail th e c o n stitu tio n a lity
of a s ta tu te ?
A: Direct and personal interest of the party must exist in
order to question constitutionality of a statute.

II CMe Law ^jj

A party who assails the constitutionality of a statute
m ust have a direct and personal interest. It must show not
 CHAPTER II 101
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

only that the law or any governmental act is invalid, but also
that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement and not merely
that it suffers thereby in some indefinite way. It must show
that it has been or is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.
(Southern Hemisphere Engagement Network, Inc., on Behalf
o f the South-South Network [SSNj for Non-State Armed Croup
Engagement, and Atty. Soliman M. Santos, Jr. vs. Anti-
Terrorism Council, The Executive Secretary, The Secretary of
Justice, The Secretary o f The Interior and Local Government,
The Secretary o f Finance, The National Security Adviser, The
Chief o f Staff o f the Armed Forces of the Philippines, and the
Chief o f The Philippine National Police, Respondents, G.R. No.
178552, October 5, 2010)

14. Rule M aking Power o f th e S uprem e Court:

Sec. 5, Art. VIII, par. (5) o f th e 1987 C o n stitu tio n

provides for the rule making power of the Supreme Court. It
provides that:
“(5) Prom ulgate rules con cern in g th e p rotection
and enforcem ent o f con stitu tion al rights, pleadings,
practice, and procedure in all courts, th e adm ission
to th e practice o f law, th e Integrated Bar, and legal
a ssista n ce to th e underprivileged. Such rules shall
provide a sim plified and in exp en sive procedure for
th e speedy d isposition o f ca ses, shall be uniform for
all courts o f th e sam e grade, and shall n ot dim inish,
increase, or m odify substan tive rights. R ules o f
procedure o f special courts and quasi-judicial bodies
shall rem ain effective u n less disapproved by th e
Suprem e Court.”

COMMENTS
Q: W hat is th e Rule M aking Power of th e Suprem e
C ourt?
A: The Supreme Court in the exercise of its rule making
power shall promulgate rules concerning the following
powers:
102 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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a) The protection and enforcement of constitutional

rights, pleadings, practice, and procedure in all courts;
b) The admission to the practice of law;
c) The Integrated Bar; and
d) Legal assistance to the underprivileged.
Q: W hat is th e coverage o f th e application of th e Rule
M aking Power o f th e Suprem e C ourt?
A: The power of the Supreme Court to promulgate rules
carries with it the power to overturn judicial precedents, and
declaring the law as unconstitutional.

Case Law:

The rule making power of this Court was expanded. This

Court for the first time was given the power to promulgate
rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first
time the power to disapprove rules of procedure of special
courts and quasi- judicial bodies. But most importantly, the
1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading,
practice and procedure is no longer shared by this Court with
Congress, more so with the Executive.
Ju st recently, Carpio-Morales v. Court of Appeals (Sixth
Division) further elucidated:
While the power to define, prescribe, and apportion
the jurisdiction of the various courts is, by constitutional
design, vested unto Congress, the power to promulgate rules
concerning the protection and enforcement of constitutional
rights., pleading, practice and procedure in all courts belongs
exclusively to this Court. Section 5(5), Article VIII of the 1987
Constitution reads:
We deem it proper to declare as invalid the prohibition
against plea bargaining on drugs cases until and unless it is
made part of the rules of procedure through an administrative
circular duty issued for the purpose. (Salvador Estipona, Jr.
y Asuela vs. Hon Frank E. Lobrigo, Presiding Justice of the
 CHAPTER II 103
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

Regional Trial Court, Branch 3, Legazpi City, Albay and the

People o f the Philippines, G.R. No. 226679, August 15, 2017)
Q: W hat is th e effect o f th e ru les prom ulgated by th e
S uprem e C ourt on th e Rules o f Special C ourts and Quasi-
Ju d ic ia l Bodies?
A: Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the
Supreme Court.
Q: W hat is coverage o f th e app licatio n of th e rule m aking
pow er o f th e S uprem e C ourt?
A: The Supreme Court has the power to amend, repeal, or
establish new rules.

Case Law:

The Supreme Court has the power to amend, repeal, or

even establish new rules for a more simplified and inexpensive
process, and the speedy disposition of cases. (Neypes us.
Court o f Appeals, 469 SCRA 633)
Q: W hat is th e objective of th e app lication of th e Rule
M aking Power o f th e S uprem e C ourt?
A: Power of the Supreme Court to promulgate rules
are means for jurisdiction to be exercised as fixed by the
Constitution or law.

Case Law:
The Rules of Court does not define jurisdictional
boundaries of the courts. In promulgating the Rules of Court,
the Supreme Court is circumscribed by the zone properly
denominated as the promulgation of rules concerning
pleading, practice, and procedure in all courts; consequently,
th e R u le s o f C o u rt can only d eterm in e th e m eans, ways
or m an n er in w hich said ju risd ictio n , as fixed by th e
C o n stitu tio n an d a c ts o f Congress, shall be exercised.
(Minerva A. Gomez-Castillo vs. COMELEC, G.R. No. 187231,
June 22, 2011)
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Q: Who has th e pow er to prom ulgate rules of procedure?

A: The power to promulgate rules of procedure is lodged
solely with the Supreme Court.

Case Law:

The Supreme Court has the sole power to amend,

repeal or even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases.
(Neypes vs. CA, 469 SCRA 633)

Q: W hat is th e req u irem en t for th e exercise of th e Rule

M aking Power?
A: The power to promulgate rules of procedure must
conform to the Constitution.

Case Law:

While th e C o n stitu tio n g ran ts th e S uprem e C ourt th e

pow er to prom ulgate ru les concerning th e practice and
procedure in all co u rts (and allows th e C ourt to regulate
th e co n sid eratio n o f 2 n d m o tio n s for reconsideration,
including th e v o te th a t th e C ourt shall require), th e se
procedural rules m u st be c o n siste n t w ith th e stan d a rd s
s e t by th e C o n stitu tio n itself. Among these constitutional
standards is the above quoted Sec. 4 which applies to “all
other cases which under the Rules o f Court are required to
be heard en banc, ” and does n o t m ake any d istin c tio n as
to th e ty p e o f cases o r rulings it applies to, i.e., whether
these cases are originally filed with the Supreme Court, or
cases on appeal, or rulings on the merits of motions before
the Court. Thus, rulings on the merits by the Court en banc
on 2nd motions for reconsideration, if allowed by the Court to
be entertained under its Internal Rules, must be decided with
the concurrence of a majority of the Members who actually
took part in the deliberations. (Apo Fruits Corporation and
Hijo Plantation, Inc. vs. Land Bank of the Philippines, G.R. No.
164195, April 5, 2011)
 CHAPTER II 105
CONSTITUTIONAL PROVISIONS RELATIVE TO CIVIL PROCEDURE

Q: W hat are th e lim itatio n s on th e rule m aking power of

th e S uprem e C ourt?
A: The rules promulgated by the Supreme Court shall be
subject to the following limitations, to wit:
1) It shall provide for a simplified and inexpensive
procedure for the speedy disposition of cases;
2) It shall be uniform for all courts of the same grade;
and
3) It shall not diminish, increase, or modify substantive
rights.

15. C o n stitu tio n a l R equirem ent o f a Decision

o r Final Order:

Sec. 14, Art. VIII o f th e 1987 C o n stitu tio n provides for

the rule on the rendition of judgment by the court. It provides
that:
MNo court shall render a d ecision w ithout statin g
clearly and d istin ctly th e facts and th e law on w hich
it is based.
No p etitio n for review or m otion for
reconsideration o f a d ecision o f th e court shall be
refused due course or denied w ithout statin g th e legal
basis therefor.”

COMMENTS
Q: W hat is th e c o n stitu tio n a l req u irem en t of a valid
ju d g m e n t?
A: A decision must state clearly the facts and the law on
which it is based.

|_ C a s e L a w ^

Under Sec. 14, Art. VIII of the Constitution, no decision

shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is
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based. Sec. 1 of Rule 36 of the Rules of Court provides that

a judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him and filed with the clerk of the
court.
Faithful adherence to the requirements of Sec. 14, Art.
VIII of the Constitution is indisputably a paramount compo­
nent of due process and fair play. A decision that does not
clearly and distinctly state the facts and the law on which it is
based leaves the parties in the dark as to how it was reached
and is precisely prejudicial to the losing party, who is unable
to pinpoint the possible errors of the court for review by a
higher tribunal. More than that, the requirement is an assu r­
ance to the parties that, in arriving at a judgment, the judge
did so through the processes of legal reasoning. It is, thus,
a safeguard against the impetuosity of the judge, preventing
him from deciding ipse dixit.
The standard “expected of the judiciary” is that the
decision rendered makes clear why either party prevailed
under the applicable law to the facts as established. Nor is
there any rigid formula as to the language to be employed
to satisfy the requirement of clarity and distinctness. The
discretion of the particular judge in this respect, while not
unlimited, is necessarily broad. There is no sacramental form
of words which he must use upon pain of being considered
as having failed to abide by what the Constitution directs.
(Enrique G. De Leon vs. People o f the Philippines and SP03
Pedrito L. Leonardo, G.R. No. 212623, January 11, 2016, J.
Mendoza)
Q: W hat is th e R equirem ent in Case of Denial of a
P etitio n for Review or M otion for R eco nsideration?
A: No petition for review or motion for reconsideration of a
decision of the court shall be refused due course or denied
without stating the legal basis therefor.
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16. Review o f th e D ecision o r F inal O rder of th e I

[ C o n stitu tio n al Com m ission: ||

Sec. 7, Art. IX-A o f th e 1987 C o n stitu tio n provides

for the rule on the review on the decision, final order of the
Constitutional Commissions. It provides that:
"Unless, th e C on stitution or th e law otherw ise
provides, d ecision o f th e co n stitu tion al com m ission
shall be reviewed by th e Suprem e Court by way o f
p etitio n for certiorari w ithin th irty (30) days from
receipt th ereon .”

COMMENTS
Q: W hat are th e cases reviewable by th e Suprem e C ourt?
A: The Supreme shall review the decision of the
Constitutional Commissions, such as:
a) Commission on Elections; and
b) Commission on Audit.

Q: May an in terlo cu to ry o rd er issued by COMELEC

Division be su b ject o f p e titio n for certio rari u n d er Rule
64?
A: No, the remedy is to seek the review of the interlocutory
order during the appeal of the decision of the Division to the
Commission en banc.

Case Law:

A party aggrieved by an interlocutory order issued by a

Division of the Commission on Elections (COMELEC) in an
election protest may not directly assail the order in this Court
through a special civil action for certiorari. The remedy is to
seek the review of the interlocutory order during the appeal
of the decision of the Division in due course. (Douglas Cagas
vs. Commission on Elections and Claude Bautista, G.R. No.
194139, January 24, 2012, Bersamin, J.)
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17. T ran sito ry Provision: Power to Prom ulgate Rules

o f Procedure Shared by th e S uprem e C ourt an d th e
Congress._______________________________________

Sec. 10, Art. XVIII o f th e 1987 C o n stitu tio n provides

for the rules on the operative application of existing Rules of
Court, judiciary acts, procedural laws not inconsistent with
the Constitution. It states that:
MSec. 10. All courts ex istin g at th e tim e o f th e
ratification o f th e C on stitution shall con tin u e to
exercise th eir jurisdiction, u n til otherw ise provided
by law. The provisions o f th e existin g R ules o f Court,
judiciary a cts, and procedural laws n ot in co n sisten t
w ith th is C on stitution shall rem ain operative u n less
am ended or repealed by th e Suprem e Court or th e
C ongress.”

COMMENTS
Q: W hat is th e effect o f th e ratificatio n of th e C o n stitu tio n
on th e exercise o f ju risd ic tio n by th e c o u rts?
A: All courts existing at the time of the ratification of the
Constitution shall continue to exercise their jurisdiction,
until otherwise provided by law. The provisions of the existing
Rules of Court, judiciary acts, and procedural laws not
inconsistent with this Constitution shall remain operative
unless amended or repealed by the Supreme Court or the
Congress.
 CHAPTER III

GENERAL PRINCIPLES IN REMEDIAL LAW

I. PROCEDURAL LAWS AND JUDICIAL COURTS

A. Basic C oncept:

1. P rocedural Law:

Q: W hat is th e C oncept o f R em edial Law? (2006 Bar

Exam ination)
A: Remedial Law is that branch of law which prescribes the
method of enforcing the rights or obtaining redress for their
invasions. (Bustos vs. Lucero, 81 Phil. 640)
Q: W hat is R em edial S ta tu te ? Purpose.
A: Remedial statutes refer to the Statutes relating to
remedies or modes of procedure, which do not create new or
take away vested rights, but only operate in furtherance of
the remedy or confirmation of rights already existing, do not
come within the legal conception of a retrospective law, or the
general rule against the retrospective operation of statutes.
(Castro vs. Sagales, 94 Phil. 208)
Q: W hat is th e n a tu re o f rem edial law?
A: Remedial law is procedural in character, does not vest
or create substantive rights, and has the force and effect of a
law.
109
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Q: W hat are th e m ech an ics o f due process as p a rt of

rem edial law?
A: 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;
(b) Jurisdiction m ust be lawfully acquired over the
person of the defendant or over the property which is the
subject of the proceeding;
(c) The defendant m ust be given an opportunity to be
heard; and
(d) Judgment must be rendered upon a lawful hearing.
(Consolidated Bank and Trust Corp. vs. Court o f Appeals, 193
SCRA 158)

Q: W hat is th e m eaning o f procedural laws?

A: Procedural law refers to the adjective law which prescribes
rules and forms of procedure in order that courts may be able
to administer justice

J^C ase_ L aw J

According to De los Santos vs. Vda. de Mangubat:

“Procedural law refers to the adjective law which
prescribes rules and forms of procedure in order that
courts may be able to administer justice. Procedural laws
do not come within the legal conception of a retroactive
law, or the general rule against the retroactive operation
of statues they may be given retroactive effect on actions
pending and undetermined at the time of their passage
and this will not violate any right of a person who may
feel that he is adversely affected, insomuch as there are
no vested rights in rules of procedure.” (Priscilla Alma
Jose vs. Ramon C. JaveUana, et al., G.R. No. 158239,
January 25, 2012)
 CHAPTER III 111
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat is th e n a tu re an d purpose o f procedural ru les?

A: Procedural rules are not to be disdained as mere
technicalities. They may not be ignored to suit the
convenience of a party, and for the effective administration of
justice.

Case Law:

Procedural rules are not to be disdained as mere

technicalities. They may not be ignored to suit the convenience
of a party. Adjective law ensures the effective enforcement
of substantive rights through the orderly and speedy
administration of justice. Rules are not intended to hamper
litigants or complicate litigation. But they help provide for a
vital system of justice where suitors may be heard following
judicial procedure and in the correct forum. Public order
and our system of justice are well served by a conscientious
observance by the parties of the procedural rules. (Samahan
ng mga Manggagawa sa Hyatt [Samasah-Nuwhrain] vs. Hon.
Voluntary Arbitrator Buenaventura C. Magsalin and Hotel
Enterprises o f the Philippines, G.R. No. 172303, June 6, 2011)
Q: W hat are th e d istin c tio n s betw een su b stan tiv e law
and procedural law?
Substantive law Procedural law
a) Substantive law creates, a) Procedural law prescribes
defines, and regulates the rules and forms of pro­
rights. cedure in the administration
of justice.
b) It cannot be waived. b) It can be waived or subject to
agreement of the parties.
c) It is enacted by the Congress. c) It is promulgated by the
Supreme Court pursuant to
its Rule making power.
d) It may be given retroactive d) It shall be given prospective
application. application.
112 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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2. Power to Prom ulgate Procedural Rules:

Q: Who has th e power to prom ulgate rules of procedure?

A: The power to promulgate rules of procedure is solely
lodged with the Supreme Court.

C o n stitu tio n al Basis:

Sec. 5, par. 5, Art. VIII o f th e 1987 C o n stitu tio n

provides for the rule making power of the Supreme Court. It
provides that:
“(5) Promulgate rules concerning th e protection
and enforcem ent o f con stitu tion al rights, pleadings,
practice, and procedure in all courts, th e adm ission
to th e practice o f law, th e Integrated Bar, and legal
assistan ce to th e underprivileged. Such rules shall
provide a sim plified and inexpensive procedure for
th e speedy disposition o f cases, shall be uniform for
all courts o f th e sam e grade, and shall not dim inish,
increase, or m odify substantive rights. Rules of
procedure o f special courts and quasi-judicial bodies
shall remain effective u n less disapproved by th e
Suprem e Court.”

Jj^ C aseL aw ^

The Supreme Court has the sole power to amend,

repeal or even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases.
(Neypes vs. CA, 469 SCRA 633)
Unlike the 1935 and 1973 Constitutions, which
empowered Congress to repeal or supplement the rules of
the Supreme Court concerning pleading, practice, and
procedure, the 1987 Constitution removed this power from
the Congress. (Government Insurance Service System [GSIS)
vs. Heirs o f Fernando F. Caballero, G.R. No. 158090, October
4, 2010)
 CHAPTER III 113
GENERAL PRINCIPLES IN REMEDIAL LAW

3. A pplication o f P rocedural Laws:

Q: May procedural laws be given retro activ e app licatio n ?

A: Yes, procedural laws can be given retroactive application
as long as it does not violate of the rights of person affected
and it is not constitutionally objectionable.

I^ C a s e J L a w jJ

Statutes and rules regulating the procedure of courts

are considered applicable to actions pending and unresolved
at the time of their passage. Procedural laws and rules are
retroactive in that sense and to that extent. The effect of
procedural statutes and rules on the rights of a litigant may not
preclude their retroactive application to pending actions. This
retroactive application does not violate any right of a person
adversely affected. Neither is it constitutionally objectionable.
The reason is that, as a general rule, no vested right may attach
to or arise from procedural laws and rules. It has been held
that “a person has no vested right in any particular remedy,
and a litigant cannot insist on the application to the trial of his
case, whether civil or criminal, of any other than the existing
rules of procedure.” More so when, as in this case, petitioner
admits that it was not able to pay the docket fees on time.
Clearly, there were no substantive rights to speak of when the
RTC dismissed the Notice of Appeal. (Panay Railways, Inc. vs.
Heva Management and Development Corporation, Pamplona
Agro-Industrial Corporation, and Spouses Candelaria Dayot
and Edmundo Dayot, G.R. No. 154061, January 25, 2012)

Q: Can th e “Fresh-Period R ule” be given retro activ e

app licatio n ?
A: Yes, the rule on retroactivity of procedural laws, the
“fresh period rule” should be applied to pending actions, such
as the present case in order to avoid injustice to parties.
114 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The “freshperiod 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 laws, the “fresh period rule” should be applied
to pending actions, such as the present case.
Also, to deny herein petitioners the benefit of the “fresh
period rule” will amount to injustice, if not absurdity, since
the subject notice of judgment and final order were issued two
(2) years later or in the year 2000, as compared to the notice
of judgment and final order in Neypes which were issued in
1998. It will be incongruous and illogical that parties receiving
notices of judgment and final orders issued in the year 1998
will enjoy the benefit of the “fresh period rule” while those
later rulings of the lower courts such as in the instant case,
will not. (Priscilla Alma Jose vs. Ramon Javellana, et al, G.R.
No. 158239, January 25, 2012)

Ju d ic ia l Power an d th e C ourts Exercising It:

Q: To whom ju d icial pow er is v ested ?

A. Judicial power is lodged with the judicial courts.

C o n stitu tio n a l Basis:

Sec. 5, Art. VIII, par. 1 o f th e 1987 C o n stitu tio n vests

judicial power in one Supreme Court and such lower courts
as may be established by law. It states that:
“Judicial power shall be v e ste d in one Suprem e
Court and in su ch lower cou rts as m ay be establish ed
by law.”
 CHAPTER III 115
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat are th e d ifferen t c o u rts in th e P hilippines

exercising ju d icial pow er?
A: a) Constitutional court — court which is established
by the Constitution.
1) Supreme Court.
b) Statutory courts — courts which are established by
law.
1) Court of Appeals (as established by B.P. 129);
2) Sandiganbayan (as established by P.D. 1606 as
amended by R.A. 7975, 8249 and 10660);
3) Court of Tax Appeals (as established by R.A.
1125);
4) Shari’ah Appellate Court (as established by
P.D. 1083);
5) Regional Trial Court (as established B.P. 129);
6) Family Court (as established by R.A. 8369);
7) Shari’ah District Court (as established by P.D.
10831;
8) Metropolitan Trial Court, Metropolitan Circuit
Trial Court, Municipal Circuit Trial Court (as established
by B.P. 129);
9) Shari’ah Circuit Court (as established by P.D.
1083).

5. T ribunals w hich are n o t P art o f Ju d ic ia l System :

0
Q: Are trib al co u rts p a rt o f ju d icial sy stem ?
A: No. Tribal Courts are existing under the customs and
traditions of an indigenous cultural community and are not
part of the Philippine Judicial System, and they are merely
for conciliatory and advisory.
116 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

These are courts which are existing under the customs

and traditions of an indigenous cultural community and are
not part of the Philippine Judicial System. (Sec. 1, Art. VIII,
1987 Constitution) They do not possess judicial power. Like
the pangkat or conciliation panels created by P.D. 1508 in the
barangay, they are advisory and conciliatoiy bodies. Decisions
of a tribunal based on a compromise may be enforced or set
aside, in and through the regular courts only. (Sps. Badua vs.
Cordillera Bodong Administration, G.R. No. 92649, February
14, 1991)

Q: Are M ilitary C om m issions or trib u n al judicial co u rts?

A: No. Military commission or tribunal is not a court of law
and does not form part of the judicial system and process.

Case Law:

This is not a court of law and does not form part of the
judicial system and process. They are agencies of executive
character. Their decisions are not appealable to the courts
but would pass the reviewing and conferring authority, but
the Supreme Court may exercise its supervision or correcting
power over court-martial proceedings when jurisdictional
errors are involved or when there is grave abuse of discretion.
A military commission or tribunal cannot try and exercise
jurisdiction over civilians for offenses allegedly committed by
them as long as the civil courts are open and functioning.
(Olaguer vs. Military Commission, 150 SCRA 144) Any
judgment rendered by such body relating to a civilian is null
and void for lack of jurisdiction on the part of the military
tribunal concerned.

Q: Does th e word "inferior co u rts” u n d er th e C o nstitution

includes m ilitary co u rts?
A: No. The word “inferior courts” as provided for in Sec. 2,
Article VIII, of the Constitution, do not refer to Court-Martial
or Military Courts.
 CHAPTER III 117
GENERAL PRINCIPLES IN REMEDIAL LAW

Case Law:

In the case of Ramon Ruffy vs. Chief of Staff of the

Philippine Army (43 Off. Gaz., 855), the Court did not hold
that the word “court” in general used in our Constitution
does not include a Court-Martial; what the Court held is
that the words “inferior courts” used in connection with
the appellate jurisdiction of the Supreme Court to “review
on appeal certiorari or writ of error, as the law or rules of
court may provide, final judgments of inferior courts in all
criminal cases in which the penalty imposed is death or life
imprisonment,” as provided for in Section 2, Article VIII, of
the Constitution, do not refer to Court-Martial or Military
Courts. (Major General Carlos F. Garcia, AFP [Ret.] vs. The
Executive Secretary, Representing the Office of the President;
The Secretary o f National Defense Voltaire T. Gazmin; The
Chief o f Staff, Armed Forces of the Philippines, Gen. Eduardo
SL Oban, Jr., and Lt. Gen. Gaudencio S. Pangilinan, AFP [Ret.],
Director, Bureau of Corrections, G.R. No. 198554, July 30,
2012 )

| II. JURISDICTION IN GENERAL

Basic C oncept:

Q: W hat is th e origin o f th e te rm "ju risd ictio n ?

A: The term derives its origin from two Latin words — “ju s ”
meaning law and the other, “dicere”meaning to declare.

Case Law:

The term derives its origin from two Latin words — “ju s ”
meaning law and the other, “dicere” meaning to declare. (I
B ouvibr ’s L a w D ictionary, p. 1760 [3rd Revision]) The term has
also been variably explained to be “the power o f a court to
hear and determine a cause o f action presented to it, the power
o f a court to adjudicate the kind o f case before it, the power of
118 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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a court to adjudicate a case when the proper parties are before

it, and the power o f a court to make the particular decision it is
asked to render. ” (20 Am Jur 2d §55; Allen A. Macasaet, et al.
vs. People, G.R. No. 153747, February 23, 2005)

Q: W hat is th e m eaning o f ju risd ictio n ?

A: Jurisdiction is defined as the authority of the court to
hear and decide actual cases and to implement its decision.

Jurisdiction is defined as the power of the court to hear

and decide cases (Herrera vs. Barreto, 25 Phil. 33) and to
execute the judgment thereon. (Echegaray vs. Secretary of
Justice, 301 SCRA 96)

Q: To whom ju risd ictio n is lodged?

A: Jurisdiction is vested in court and not in the judge.

Cast

It is not the power of a judge but of the court. A court

may exist without a judge. There may be a judge without a
court. Jurisdiction is vested in the court and not in the judge.
(Bacalso vs. Ramolete, 21 SCRA 519)

Q: How to determ in e ju risd ictio n ?

A: Allegations in the complaint and the principal relief
sought determines jurisdiction.

Determinative of which regular court had jurisdiction

would be the allegations of the complaint (on the assessed
value of the property) and the principal relief thereby
sought. (Petronilo J. Barayuga vs. Adventist University of the
Philippines, G.R. No. 168008, August 17, 2011)
 CHAPTER III 119
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat are th e classificatio n s o f ju risd ic tio n ?

A: The classifications of jurisdiction are as follows, to wit:
1) General;
2) Special or limited;
3) Original;
4) Exclusive;
5) Exclusive original;
6) Appellate;
7) Concurrent;
8) Delegated; and
9) Territorial.

1. G eneral ju risd ic tio n

K.T- .... . . ;
Q: W hat is general ju risd ic tio n ?
A: General — The power of the court to adjudicate all
controversies except those expressly withheld from the
plenary powers of the court. It extends to all controversies
which may be brought before a court within the legal bounds
of rights and remedies.
Q: W hen can th e Regional T rial C ourt exercise general
ju risd ic tio n ?
A: 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 other tribunal.

Case Law:

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 any other
court falls within the jurisdiction of the Regional Trial Court.
(Durisol Philippines, Inc. vs. Court o f Appeals, 377 SCRA 353)
120 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Q: Can th e RTC designated as a Special Com m ercial

C ourt exercise general ju risd ictio n ?
A: Yes, even if the RTC is designated as a Special Commercial
Court still it has general jurisdiction and can entertain all
actions/issues not withheld from its plenary powers and its
designation is only a matter of procedure.

|_ ^ a s e ^ a w ^
The matter of whether the RTC resolves an issue in the
exercise of its general jurisdiction or of its limited jurisdiction
as a special court is only a matter of procedure and has
nothing to do with the question of jurisdiction. Moreover, it
should be noted that Special Commercial Courts (SCCs) are
still considered courts of general jurisdiction. Section 5.2 of
R.A. No. 8799, (Majestic Plus International, Inc. vs. Bullion
Investment and Development Corporation/Majestic Plus
International, Inc. vs. Bullion Investment and Development
Corporation, et al., G.R. No. 201017/G.R. No. 215289,
December 5, 2016, Peralta, J.)

| 2 . Special or Lim ited ^~||

Q: W hat is a special ju risd ictio n ?

A: One which restricts the court’s jurisdiction only to
particular cases and subject to such limitations as may be
provided by the governing law. It is confined to particular
causes, or which can be exercised only under the limitations
and circumstances prescribed by the statute.
Q: W hat is th e n atu re o f ju risd ictio n of th e Probate
C ourt?
A: A probate court is of limited jurisdiction.

[| Case L a w ^

A probate court is a tribunal of limited jurisdiction. It acts

on matters pertaining to the estate but never on the rights
 CHAPTER III 121
GENERAL PRINCIPLES IN REMEDIAL LAW

to property arising from the contract. It approves contracts

entered into for and on behalf of the estate or the heirs to it
but this is by fiat of the Rules of Court. Any agreement other
than the judicially approved compromise agreement between
the parties was outside the limited jurisdiction of the probate
court. (Anita Reyes-Mesugas us. Alejandro Aquino-Reyes, G.R.
No. 174835, March 22, 2010)

Q: W hat are th e co u rts o f special ju risd ictio n ?

A: The courts which can exercise special jurisdiction are as
follows, to wit:
(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.
Example: a) Regional Trial Court acting as a Family
Court can entertain cases over marriage or marital relations
cases.
b) Regional Tried Court acting as a Special Commercial
Courts can entertain cases over violation of the Intellectual
Property Code.

j| 3. Original ju risd ic tio n ||

Q: W hat is original ju risd ic tio n ?

A: The power of the court to take judicial cognizance of a
case instituted for judicial action for the first time under the
conditions provided by law.
122 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Q: W hat are th e co u rts w hich can exercise original ju ris ­

d ictio n ?
A: The courts which can exercise special jurisdiction are as
follows, to wit:
(1) Supreme Court;
(2) Court of Appeals;
(3) Sandiganbayan;
(4) Court of Tax Appeals;
(4) Regional Trial Court;
(5) Shari’ah District/Circuit Court;
(6) Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, and Municipal Circuit Trial
Court;
(7) Shari’ah Circuit Court.

4. Exclusive ju risd ic tio n

Q: W hat is exclusive ju risd ic tio n ?

A: It is the power or authority of the court to hear and
determine cases to the exclusion of all other courts.

5. Exclusive original ju risd ic tio n

3
Q: W hat is exclusive original ju risd ic tio n ?
A: The power of the court to take judicial cognizance of a
case instituted for judicial action for the first time under the
conditions provided by law, and to the exclusion of all other
courts.
Q: W hich c o u rt h as exclusive original ju risd ic tio n ?
A: The following courts have exclusive original jurisdiction:
a) Supreme Court;
b) Court of Appeals;
c) Sandiganbayan;
 CHAPTER III 123
GENERAL PRINCIPLES IN REMEDIAL LAW

d) Court of Tax Appeals;

e) Regional Trial Court;
f) Shari’ah District Court;
g) Metropolitan and Municipal Trial Court;
h) Shari’ah Circuit Court.
Q: Give a t le a st five (5) exam ples o f cases falling w ithin
th e exclusive original ju risd ic tio n o f th e R egional Trial
C ourt in civil cases? (3016 Bar Exam ination)
A: The Regional Trial Court has exclusive and original
jurisdiction over the following cases, to wit:
(1) In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation;
(2) In all civil action which involve the title to, or
possession of, real property or any interest therein, where
the assessed value of the property involved exceeds, Twenty
thousand pesos (P20,000.00) or for civil actions in Metro-
Manila, were such value exceeds Fifty thousand pesos
(P50,000.00); except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction
over which is conferred upon the Metropolitan Trial Court,
Municipal Trial Courts, and Municipal Circuit Trial Courts;
(3) In all actions in admiralty and maritime jurisdiction
where the demand or claim exceeds Three Hundred Thousand
Pesos (P300,000.t)0) or, in Metro-Manila, where such
demand or claim exceeds Four Hundred Thousand Pesos
(P400,000.00);
(4) In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds Three Hundred
thousand pesos (P300,000.00) or, in probate matters in
Metro- Manila, where such gross value exceeds Four hundred
thousand pesos (P400,000.00);
(5) In all actions involving the contract of marriage and
marital relations;
(6) In all cases, not within the exclusive jurisdiction of
any court, tribunal, person or body exercising jurisdiction
124 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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or any court, tribunal person or body exercising judicial or

quasi- judicial functions;
(7) In all civil actions and special proceedings falling
within the exclusive original jurisdiction of a Juvenile and
Domestic Relations Court and of the Court of Agrarian
Relations as now provided by law; and
(8) In all other cases in which the demand, exclusive of
interest, deunages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in controversy
exceeds Three Hundred Thousand Pesos (P300,000.00) or,
in such other cases in Metro Manila, where the demands
exclusive of the abovementioned items exceeds Four hundred
thousand pesos (P400.000.00). (Sec. 19 of Batas Pambansa
Big. 129, as amended by R.A. 7691)
Q: W hat are th e exam ples o f actio n subject m a tte r is
incapable o f p ecuniary estim atio n ?
A: Regional Trial Court has exclusive original jurisdiction
over the following cases subject matter is incapable of
pecuniary estimation pursuant to Sec. 19(a) of B.P. 129:
1) Action for specific performance;
2) Action for rescission of contract;
3) Action for injunction;
4) Action for declaratory relief;
5) Action for reformation of instrument;
6) Action for consolidation of ownership;
7) Action for expropriation;
8) Action for support;
9) Action for the revival of judgment.

Q: W hat is appellate ju risd ictio n ?

A: The power and authority conferred upon a superior
court to rehear and determine causes which have been tried
 CHAPTER III 125
GENERAL PRINCIPLES IN REMEDIAL LAW

in lower courts, the cognizance which a superior court takes

of a case removed to it, by appeal or writ of error, from the
decision of a lower court, or the review by a superior court of
the final judgment or order of some lower courts.
Q: W hat are th e ap pellate co u rts u n d er th e law?
A: The following courts have appellate jurisdiction, to
wit:
1) Supreme Court;
2) Court of Appeals;
3) Sandiganbayan;
4) Court of Tax Appeals;
5) Shari’ah Appellate Courts;
6) Regional Trial Court; and
7) Shari’ah District Court.
Q: W hat is th e n a tu re o f original and appellate
ju risd ic tio n ?
A: Original and appellate jurisdiction are exclusive of each
other which m ust be conferred by law.

Since the two jurisdictions (original and appellate) are

exclusive of each other, each m ust be expressly conferred by
law. One does not flow from, nor is inferred from, the other.
(Garcia vs. De Jesus, 205 SCRA 779)

D elegated ju risd ic tio n

3

Q: W hat is delegated ju risd ic tio n ?

A: The grant of authority to inferior courts to hear and
determine cadastral and land registration cases under certain
conditions.
126 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Q: W hat are th e co u rts exercising delegated ju risd ic tio n ?

A: The following courts shall exercise delegated jurisdiction
under B.P. 129, to wit:
1) Metropolitan Trial Courts;
2) Municipal Trial Courts;
3) Municipal Circuit Trial Courts.

8. T errito rial ju risd ictio n

Q: W hat is te rrito ria l ju risd ic tio n ?

A: It is the power and authority to exercise its power within
its territorial region.
Example: The Regional Trial Court exercises its power
within its judicial region.

|^ 9 ^ C o n c u rre n t/c o o rd in a te / co n flu en t ju risd ic tio n

Q: W hat is co n cu rren t, co n flu en t or coordinate

ju risd ictio n ?
A: It is the power conferred upon different courts, whether
of the same or different ranks, to take cognizance at the
same stage of the same case in the same or different judicial
territories.

D octrines an d P rinciples on Ju risd ictio n :

1. R esidual Power o r Ju risd ic tio n o f th e Court:

Q: W hat is th e "residual p o w er/ju risd ictio n ” of th e

c o u rt?
A: Prior to the transmittal of the original records of the case
to the CA, the RTC may issue orders for the protection and
preservation of the rights of the prevailing party.
 CHAPTER III 127
GENERAL PRINCIPLES IN REMEDIAL LAW

| Case Law:

Sec. 9, Rule 41 of the Rules explains that the court of origin

loses jurisdiction over the case only upon the perfection of the
appeal filed in due time by the appellant and the expiration
of the time to appeal of the other parties. Withal, prior to the
transmittal o f the original records of the case to the CA, the
RTC may issue orders for the protection and preservation of
the rights o f the prevailing party, as in this case, the issuance
of the writ o f execution because the respondent’s appeal was
not perfected. (Agustus Gonzales and Spouses Nestor Victor
and Maria Lourdes Rodriguez vs. Quirico Pe, G.R. No. 167398,
August 9, 2011)

|^ 2 ^ ^ c ^ t o c o f ^ r i m ^ y J u ^ d i c t i o n |J

Q: W hat is th e d o ctrin e o f prim ary ju risd ic tio n ?

A: Courts m ust refrain from determining a controversy
involving a question which is within the jurisdiction of
the administrative tribunal, where the question demands
the exercise of sound administrative discretion requiring
the special knowledge, experience and services of the
administrative tribunal on technical and intricate matters of
fact

Case Law:

Under the doctrine of primary jurisdiction, courts must

refrain from determining a controversy involving a question
which is within the jurisdiction of the administrative tribunal
prior to its resolution by the latter, where the question
demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and
intricate matters of fact — In recent years, it has been
the jurisprudential trend to apply [the doctrine of primary
jurisdiction] to cases involving matters that demand the special
128 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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competence of administrative agencies. [It may occur that

the Court has jurisdiction to take cognizance of a particular
case, which means that the matter involved is also judicial in
character. However, if the case is such that its determination
requires the expertise, specialized skills and knowledge of the
proper administrative bodies because technical matters or
intricate questions of facts are involved, then relief m ust first
be obtained in an administrative proceeding before a remedy
will be supplied by the courts even though the matter is
within the proper jurisdiction of a court. This is the doctrine
of primary jurisdiction. It applies “where a claim is originally
cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, have been placed within
the special competence of an administrative body, in such
case the judicial process is suspended pending referral of
such issues to the administrative body for its view.” (Rosito
Bagunu vs. Spouses Francisco Aggabao & Rosenda Acerit,
G.R. No. 186487, August 15, 2011)
Q: W hat is th e objective o f prim ary ju risd ic tio n ?
A: The objective is to guide a court in determining whether
it should refrain from exercising its jurisdiction until after an
administrative agency has determined some question or some
aspect of some question arising in the proceeding before the
court.

Case Law:

Strictly speaking, the objective of the doctrine of primary

jurisdiction is to guide a court in determining whether it
should refrain from exercising its jurisdiction until after an
administrative agency has determined some question or some
aspect of some question arising in the proceeding before the
court. The court cannot or will not determine a controversy
involving a question which is within the jurisdiction of the
administrative tribunal prior to resolving the same, where
the question demands the exercise of sound administrative
discretion requiring special knowledge, experience and
 CHAPTER III 129
GENERAL PRINCIPLES IN REMEDIAL LAW

services in determining technical and intricate matters of fact.

(Vincent E. Omictin vs. Hon. Court of Appeals [Special Twelfth
Division] and George I. Lagos, G.R. No. 148004, January 22,
2007)
Q: W hat Is th e effect in case o f violation of th e doctrin e
of th e prim ary ju risd ic tio n ?
A: Acts and decision of the court is null and void if it is in
violation of the doctrine of primary jurisdiction.

Case Law:

When an administrative body is clothed with original

and exclusive jurisdiction, courts are utterly without power
and authority to exercise concurrently such jurisdiction.
Accordingly, all the proceedings of the court in violation of
that doctrine and all orders and decisions reached are null
and void. (Manolito Agra, et al. vs. Commission on Audit, G.R.
No. 167807, December 6, 2011)

3. D octrine o f N on-Interference or “D octrine

o f Ju d ic ia l S tab ility ”:

Q: W hat is th e “D octrine o f N on-Interference” or

“D octrine o f Ju d ic ia l S tab ility ”?
A: No court can interfere by injunction with the judgment
or orders of another court of concurrent jurisdiction having
the power to grant the relief sought by injunction.

Case Law:

No court can interfere by injunction with the judgment or

orders of another court of concurrent jurisdiction having the
power to grant the relief sought by injunction. The rationale
for the rule is founded on the concept of jurisdiction over
its judgment, to the exclusion of all other coordinate courts,
for its execution and over all its incidents, and to control,
in furtherance of justice, the conduct of ministerial officers
130 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

acting in connection with the judgment. (Atty. Tomas Ong

Cabili vs. Judge Rasad G. Balindong, A.M. No. RTJ-10-2225,
September 6, 2011)

4. D octrine o f H ierarchy o f C ourts (Bar E xam ination

2017): _____________________

Q: W hat is th e rule on h ierarch y c o u rts?

A: A direct resort to a higher court will not be allowed,
unless the remedy is fist availed of at the lower court, except
in case of special and compelling reasons.

Case Law:

This Court’s original jurisdiction to issue writs of certiorari

is not exclusive. It is shared by this Court with Regional Trial
Courts and with the Court of Appeals. This concurrence
of jurisdiction is not, however, to be taken as according to
parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals,
and also serves as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming
regard for that judicial hierarchy most certainly indicates
that petitions for the issuance of extraordinary writs against
first level (“inferior”) courts should be filed with the Regional
Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court’s original
jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established
policy. It is a policy necessary to prevent inordinate demands
upon the Court’s time and attention which are better
devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court’s docket.
(United Claimants Association o f NEA [UNICAN] vs. National
Electrification Administration [NEA], G.R. No. 187107, January
31, 2012)
 CHAPTER III 131
GENERAL PRINCIPLES IN REMEDIAL LAW

E stoppel by Laches:

Q: W hat is lach es?

A: Laches has been defined as the “failure or neglect, for
an unreasonable and unexplained length of time, to do that
which, by exercising due diligence, could or should have
been done earlier; it is negligence or omission to assert a
rig h t w ith in a r e a s o n a b le tim e , w a r r a n tin g th e p r e s u m p tio n
that the party entitled to assert it either has abandoned or
declined to assert it.” (Tijam, supra; Republic of the Philippines
vs. Bantigue Point Development Corporation, G.R. No. 162322,
March 14, 2012)
Q: W hat is th e effect o f esto p p el by laches on th e
q u estio n o f lack o f ju risd ic tio n ?
A: Estoppel by laches had already precluded the party-
litigant from raising the question of lack of jurisdiction on
appeal after participating in the trial and receiving an adverse
decision, except in most exceptional cases.

jj Case

The ruling of the Court of Appeals that “a party may be

estopped from raising such [jurisdictional] question if he has
actively taken part in the very proceeding which he questions,
belatedly objecting to the court’s jurisdiction in the event
that the judgment or order subsequently rendered is adverse
to him” is based on the doctrine of estoppel by laches. We
are aware of that doctrine first enunciated by this Court in
Tijam vs. Sibonghanoy. In Tijam, the party-litigant actively
participated in the proceedings before the lower court and filed
pleadings therein. Only 15 years thereafter, and after receiving
an adverse Decision on the merits from the appellate court,
did the party-litigant question the lower court’s jurisdiction.
Considering the unique facts in that case, the Court held that
estoppel by laches had already precluded the party-litigant
from raising the question of lack of jurisdiction on appeal.
In Figueroa vs. People, the Court cautioned that Tijam must
be construed as an exception to the general rule and applied
only in the most exceptional cases whose factual milieu is
132 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

similar to that in the latter case. (Republic o f the Philippines

vs. Bantigue Point Development Corporation, G.R. No. 162322,
March 14, 2012)

Q: W hat is th e d o ctrin e of “E stoppel by Laches” or

“Equitable E stoppel”?
A: The active participation of the party against whom the
action was brought, coupled with his failure to object to the
jurisdiction of the court or administrative body where the
action is pending, is tantamount to an invocation of that
jurisdiction.

|| Case Law;

The rule is that the active participation of the party against

whom the action was brought, coupled with his failure to object
to the jurisdiction of the court or administrative body where
the action is pending, is tantamount to cm invocation of that
jurisdiction and a willingness to abide by the resolution of the
case and will bar the said party from later on impugning the
court or the body’s jurisdiction. (Megar Sugar Corporation vs.
RTC of Iloilo, Br. 68, Dumiglas, Iloilo, et al, G.R. No. 170352,
June 1, 2011)

|| 6. D octrine o f E xhaustion o f A dm inistrative Remedies^

Q: W hat is th e m ain th ru s t o f th e “D octrine of E xhaustion

of A dm inistrative R em edies”?
A: The thrust of the rule is that courts must allow
administrative agencies to cany out their functions and
discharge their responsibilities within the specialized areas
of their respective competence.

Case Law:

The doctrine of exhaustion of administrative remedies is

a cornerstone of our judicial system. The thrust of the rule is
that courts must allow administrative agencies to carry out
their functions and discharge their responsibilities within the
 CHAPTER III 133
GENERAL PRINCIPLES IN REMEDIAL LAW

specialized areas of their respective competence. The rationale

for this doctrine is obvious. It entails lesser expenses and
provides for the speedier resolution of controversies. Comity
and convenience also impel courts of justice to shy away from
a dispute until the system of administrative redress has been
completed. In view of this doctrine, jurisprudence instructs
that before a party is allowed to seek the intervention of
the courts, it is a pre-condition that he avail himself of all
administrative processes afforded him. Hence, if a remedy
within the administrative machinery can be resorted to by
giving the administrative officer every opportunity to decide
on a matter that comes within his jurisdiction, then such
remedy m ust be exhausted first before the court’s power of
judicial review can be sought. The premature resort to the
court is fatal to one’s cause of action. Accordingly, absent
any finding of waiver or estoppel, the case may be dismissed
for lack of cause of action. However, it must be clarified that
the aforementioned doctrine is not absolute as it is subject
to certain exceptions, one of which is when the question
involved is purely legal and will ultimately have to be decided
by the courts of justice. In Vigilar v. Aquino, the Court had the
opportunity to explain the rationale behind this exception, to
wit:
It does not involve an examination of the probative value
of the evidence presented by the parties. There is a question
of law when the doubt or difference arises as to what the
law is on a certain state of facts, and not as to the truth or
the falsehood of alleged facts. Said question at best could
be resolved tentatively by the administrative authorities. The
final decision on the matter rests not with them but with the
courts of justice. (Spouses Ramon and Ligaya Gonzales vs.
Marmaine Realty Corporation, G.R. No. 214241, January 13,
2016, J. Perlas-Bemabe)

D. P ay m en t o f Filing or D ocket Fees is Jurisdictional:

3
Q: W hat is th e m ain objective o f p ay m en t of filing/
do ck et fees?
A: The court acquires jurisdiction over the case only upon
the payment of the said fees.
134 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

It is not simply the filing of the complaint that vests the

court with jurisdiction over the action filed but also by the
payment of the prescribed docket fee. The Supreme Court, in
several cases, has held that a court acquires jurisdiction over
the case ONLY upon the payment of the said fees. (Manchester
Development Corporation vs. Court of Appeals, G.R. No. 75919,
May 7, 1987; Nestle Philippines, Inc. vs. FY Sons, Inc., G.R. No.
150789, May 5, 2006)
Q: How will th e rule o n p ay m en t o f do ck et fees be
co n stru ed ?
A: A liberal interpretation of the rule by allowing a late
payment of the docket fee as long as it should not be made
beyond the action’s prescriptive period

|^ 5 a s e J * a w jj

This ruling was relaxed in Sun Insurance vs. Court of

Appeals (149 SCRA 562), when the Court made a liberal
interpretation of the rule by allowing a late payment of the
docket fee as long as it should not be made beyond the action’s
prescriptive period. It also declared in the same case that any
unpaid fees should be considered a lien on the judgment. In
this case, there is no evidence that the plaintiff tried to evade
the payment of the docket fees.
It should be noted that the pronouncements of the Court
on the matter of docket fees have always been influenced by the
peculiar legal and equitable circumstances surrounding each
case. The rule is not as simple, as rigid or as uncomplicated
as the Manchester case makes it appear. There are other
circumstances equally important. While the timely payment
of docket fees is jurisdictional, considerations of equity also
come into the picture. (Yuchengco vs. Republic, 333 SCRA 368)

M anner o f A cquiring Ju risd ic tio n by th e Court:

Q: W hat are th e req u irem en ts for th e c o u rt to e n te rta in

civil cases an d ren d er a valid ju d g m en t?
 CHAPTER III 135
GENERAL PRINCIPLES IN REMEDIAL LAW

A: In order for a judgment to be valid, it m ust be rendered

by a court having jurisdiction over the following:
1) Over the subject matter of the action;
2) Over the parties;
3) Over the issues;
4) Over the case; and
5) Over the res or thing.

1. J u ris d ic tio n Over th e Subject M atter

Q: W hat is th e m eaning o f ju risd ic tio n over th e subject

m a tte r?
A: Jurisdiction over the subject matter is the power to hear
and determine the general class to which the proceedings in
question belong.

jj^^aseJL aw ^

The Court wrote in Allied Domecq Philippines, Inc. vs.

Villon:
“Jurisdiction over the subject matter is the power
to hear and determine the general class to which the
proceedings in question belong. Jurisdiction over the
subject matter is conferred by law and not by the consent
or acquiescence of any or all of the parties or by erroneous
belief of the court that it exists. Basic is the rule that
jurisdiction over the subject matter is determined by the
cause or causes of action as alleged in the complaint.”
(Danilo S. Ursua vs. Republic of the Philippines, G.R. No.
178193, January 24, 2012)

Q: How can th e c o u rt acquire ju risd ic tio n over th e

subject m a tte r o f th e case (Bar E xam ination 2015)?
A: Jurisdiction over such action are to be determined from
the material allegations of the complaint, the law in force at
the time the complaint is filed, and the character of the relief
sought.
136 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

It is axiomatic that the nature of an action and whether

the tribunal has jurisdiction over such action are to be
determined from the material allegations of the complaint,
the law in force at the time the complaint is filed, and the
character of the relief sought irrespective of whether the
plaintiff is entitled to all or some of the claims averred.
Jurisdiction is not affected by the pleas or the theories set
up by defendant in an answer to the complaint or a motion
to dismiss the same. (Republic of the Philippines, rep. by the
Regional Executive Director of the Department o f Environment
and Natural Resources, Regional Office No. 3 vs. Roman
Catholic Archbishop of Manila/Samahang Kabuhayan ng San
Lorenzo KKK, Inc., rep. by its Vice President Zenaida Turla vs.
Roman Catholic Archbishop of Manila, G.R. No. 192975/G.R.
No. 192994. November 12. 2012)
Q: Can th e defenses in th e answ er be considered to
determ in e ju risd ictio n o f th e co u rt over th e subject
m a tte r?
A: No, the jurisdiction of the court cannot be made to depend
upon the defenses set up in the answer or upon the motion to
dismiss, but on the matters alleged in the complaint and the
relief prayed for.

Case Law:
It is an elementary rule of procedural law that jurisdiction
over the subject matter of the case is conferred by law and is
determined by the allegations of the complaint irrespective of
whether the plaintiff is entitled to recover upon all or some of
the claims asserted therein. As a necessary consequence, the
jurisdiction of the court cannot be made to depend upon the
defenses set up in the answer or upon the motion to dismiss,
for otherwise, the question of jurisdiction would almost
entirely depend upon the defendant. What determines the
jurisdiction of the court is the nature of the action pleaded
as appearing from the allegations in the complaint. The
averments in the complaint and the character of the relief
sought are the matters to be consulted. (Fe V. Rapsing, Tita
 CHAPTER III 137
GENERAL PRINCIPLES IN REMEDIAL LAW

C. Villanueva and Annie F. Aparejado, represented by Edgar

Aparejado vs. Hon. Judge Maximino R. Abies, of RTC-Branch
47, Masbate City; SSGT. Edison Rural, et al, G.R. No. 171855.
October 15. 2012)
Q: W hat is th e te s t in d eterm in in g th e ju risd ic tio n of
th e co u rt over th e su b ject m a tte r?
A: Jurisdiction over the subject matter of a case is generally
conferred by law and can be determined from the allegations
in the complaint.

Case Law:

Jurisdiction over the subject matter of a case is generally

conferred by law and, unlike jurisdiction over the parties,
cannot be bestowed upon the court by the voluntary act or
agreement of such parties. But the determination of whether
or not a court may assume jurisdiction over a case for a
subject matter that by law is within its ambit is made by
simply looking at the “mere allegations of the complaint.”
(Deltaventures Resources, Inc. vs. Cabato, 327 SCRA 521)
Q: W hat is th e n a tu re o f ju risd ic tio n over th e subject
m a tte r o f th e case?
A: This kind of jurisdiction is not procedural but a matter
of substantive law.

Case Law:

This kind of jurisdiction is not procedural but a matter of

substantive law. This jurisdiction is conferred by law. Nothing
else can confer jurisdiction except the law. (De la Cruz vs.
Court o f Appeals, 510 SCRA 103; Guy vs. Court o f Appeals,
December 10, 2007)

Q: How to d eterm in e th e ju risd ic tio n of th e c o u rt over a

real a ctio n ?
A: The allegations on the assessed value stated in the
complaint and the relief determines jurisdiction in a real
action.
138 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Determinative of which regular court had jurisdiction

would be the allegations of the complaint (on the assessed
value of the property) and the principal relief thereby
sought. (Petronilo J. Barayuga vs. Adventist University o f the
Philippines, G.R. No. 168008, August 17, 2011)

Q: W hen to d eterm in e th e ju risd ic tio n of th e co u rt over

th e su b ject m a tte r of th e case?
A: The matter of jurisdiction over the subject matter of the
action can be resolved only after and as a result of trial.

Case Law:

Jurisdiction over the subject matter is determined by the

allegations of the complaint, irrespective of whether or not the
plaintiff is entitled to recover upon all or some of the claims
asserted therein - a matter that can be resolved only after and
as a result of the trial. Nor may the jurisdiction of the court
be made to depend upon the defenses set up in the answer
or upon the motion to dismiss, for, were we to be governed by
such rule, the question of jurisdiction could depend almost
entirely upon the defendant.” (Danilo S. Ursua vs. Republic of
the Philippines, G.R. No. 178193, January 24, 2012)
Q: For how long ju risd ic tio n o f th e co u rt over th e subject
m a tte r rem ain s?
A: Under the doctrine of continuing jurisdiction, once
vested by the allegations in the complaint, jurisdiction also
remains vested irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims asserted
therein.

|_ C a s e I * w ^

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
 CHAPTER III 139
GENERAL PRINCIPLES IN REMEDIAL LAW

of whether or not the plaintiff is entitled to recover upon

all or some of the claims asserted therein. The averments
in the complaint and the character of the relief sought are
the ones to be consulted. Once vested by the allegations in
the complaint, jurisdiction also remains vested irrespective
of whether or not the plaintiff is entitled to recover upon
all or some of the claims asserted therein. As a necessaxy
consequence, the jurisdiction of the court cannot be made to
depend upon the defenses set up in the answer or upon the
motion to dismiss; for otherwise, the question of jurisdiction
would almost entirely depend upon the defendant. What
determines the jurisdiction of the court is the nature of
the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the
relief sought are the ones to be consulted. (City ofDumaguete
vs. Philippine Ports Authority, G.R. No. 168973, August 24,
2011)

Q: Will th e c o u rt loose its ju risd ic tio n over an e jectm en t

case if th e d efen d an t raises th e defense o f ten an cy
relatio n sh ip ?
A: No. 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.

)| Case Law:

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. (Onquit vs. Binamira-Parcia,
297 SCRA 354 [1998]) But it is the duty of the court to receive
evidence to determine the allegations of tenancy. If, after
hearing, tenancy had, in fact, been shown to be the real issue,
the court should dismiss the case for lack of jurisdiction.
(Cervantes vs. Court of Appeals, supra, citing Isidro vs. Court
o f Appeals, 228 SCRA 503 [1993]; Amando G. Sumawang vs.
Engr. EricD. De Guzman, G.R. No. 150106, September 8, 2004)
140 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a) Lack o f ju risd ic tio n over th e su b ject m a tte r of th e

case n o t waivable as a rule

Q: Can th e issue o f lack o f ju risd ic tio n over th e subject

m a tte r be w aived?
A: As a general rule, lack of jurisdiction can be challenged
for the first time on appeal, except by estoppel by laches.

j^jC aseLaw :

As a general rule, lack of jurisdiction over the subject

matter may be raised at any time, or even for the first time on
appeal. An exception to this rule is the principle of estoppel
by laches.
Estoppel by laches may only be invoked to bar the defense
of lack of jurisdiction if the factual milieu is analogous to
Tijam v. Sibonghanoy. In that case, lack of jurisdiction was
raised for the first time after almost fifteen (15) years after the
questioned ruling had been rendered and after the movant
actively participated in several stages of the proceedings.
It was only invoked, too, after the CA rendered a decision
adverse to the movant.
In Figueroa v. People, we ruled that the failure to assail
jurisdiction during trial is not sufficient for estoppel by
laches to apply. When lack of jurisdiction is raised before the
appellate court, no considerable length of time had elapsed
for laches to apply. Laches refers to the “negligence or
omission to assert a right within a reasonable length of time,
warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it.”
The factual setting of this present case is not similar
to Tijam so as to trigger the application of the estoppel by
laches doctrine. As in Figueroa, the present petitioners
assailed the RTC’s jurisdiction in their appeal before the CA.
Asserting lack of jurisdiction on appeal before the CA does
not constitute laches. Furthermore, the filing of an answer
and the failure to attend the pre-trial do not constitute the
active participation in judicial proceedings contemplated in
 CHAPTER III 141
GENERAL PRINCIPLES IN REMEDIAL LAW

Tijam. Thus, the general rule should apply. The petitioners

timely questioned the RTC’s jurisdiction. (Spouses Herminio
and Editha Erorita vs. Spouses Antonio and Ligaya Dumlao,
G.R. No. 195477, January 25, 2016)

b) Lack of ju risd ictio n over th e subject m a tte r of

th e case a ground for a m otion to dism iss:______

Q: Is lack of ju risd ictio n over th e subject m a tte r of th e

case a ground for a m otion to dism iss u nder th e am ended
rules?
A: Yes, lack of jurisdiction over the subject matter is a
ground for a motion to dismiss an action as provided under
Sec. 12, Rule 15 of the new rules.

|^Procedural^asls^

Sec. 12, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on filing of a motion to dismiss and its grounds. It
states that:
MSec. 12. Prohibited motions. — The following
m otions shall not be allowed:
(a) Motion to dism iss except on th e following
grounds:
1) That th e court has no jurisdiction over
th e subject m atter o f th e claim;
2) That there is another action pending
between the sam e parties for the same cause; and
3) That the cause of action is barred by a
prior judgm ent or by the statu te of limitations; x x x”

c) Lack of ju risd ictio n over th e subject m a tte r of th e

case as an affirm ative defense in th e answer

Q: Can lack of ju risd ictio n over th e subject m a tte r of

th e case be raised as an affirm ative defense in th e answer
under th e new rules?
142 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Yes, lack of jurisdiction over the subject matter can be

raised as an affirmative defense in the answer as provided
under Sec. 5, Rule 6 of the amended rules.

[^Procedural BasiiuJ

Sec. 5 ,3 rd paragraph, Rule 6 o f th e 2019 A m endm ents

to th e 1997 R ules on Civil P rocedure (A.M. No. 19-10-20)
p ro v id e for th e k in d s of d e fe n s e s . It s ta t e s th a t:
"See. 5. Defenses. — D efenses m ay eith er be
negative or affirm ative.
Affirm ative d efen ses m ay also include grounds
for th e d ism issal o f a com p laint, sp ecifically, th at
th e court has no jurisdiction over th e subject m atter,
th at there is another action pending betw een th e
sam e parties for th e sam e cause, or th at th e action is
barred by a prior judgm ent. (5a)”
■■ i 11 ■ ■J ^

d) Lack o f ju risd ic tio n over th e su b ject m a tte r of th e

case a ground for a m o tio n to dism iss u n d er th e
Rules on Sum m ary Procedure:
Q: Is lack of ju risd ic tio n over th e su b ject m a tte r of th e
case a ground for a m otion to dism iss u n d er th e Rules on
Sum m ary P rocedure?
A: Yes, lack of jurisdiction over the subject matter can be a
ground for a motion to dismiss under the Rules on Summary
Procedure.

| P rocedural BasisT

Sec. 19(a) o f th e Rules on Sum m ary P rocedure

provides for the rule on the filing of a motion to dismiss on
the ground is lack of jurisdiction over the subject matter. It
states that:
“S ec. 19. Prohibited p lea d in g s a n d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n ot be allowed in th e c a ses covered by th is Rule:
a) M otion to d ism iss th e com plaint or to quash
th e com plaint or inform ation excep t on th e ground o f
 CHAPTER III 143
GENERAL PRINCIPLES IN REMEDIAL LAW

lack o f jurisdiction over the subject m atter, or failure

to com ply w ith th e preceding sectio n .”

e) Lack of ju risd ictio n over th e subject m a tte r of th e

case a ground for m o tu p r o p r io dism issal:

Q: Is lack of ju risd ictio n over th e subject m a tte r of th e

case a ground for a m o tu p r o p r io dism issal under th e new
rules?
A: Yes, lack of jurisdiction over the subject matter is a
ground for motu proprio dismissal of the action under the new
rules.

Procedural Basis:
Sec. 1, Rule 9, 2019 A m endm ents to th e 1997 Rules
on Civil Procedure (A.M. No. 19-10-20) provides for the motu
proprio dismissal of the case based on lack of jurisdiction over
the subject matter. It states that:
“Sec. 1. Defenses and objections not pleaded.
— D efenses and objections not pleaded either in a
m otion to dism iss or in th e answer are deem ed waived.
However, when it appears from th e pleadings or the
evidence on record that the court has no jurisdiction
over th e subject m atter, that there is another action
pending betw een the sam e parties for th e sam e cause,
or that th e action is barred by a prior judgm ent or
by statu te o f lim itations, the court shall dism iss the
claim .”

f) Lack o f ju risd ictio n over th e subject m a tte r of th e

case a ground for m o tu p r o p r io dism issal under
th e Rules on Sum m ary Procedure:

Q: May th e co u rt dism iss th e case m o tu p r o p r io on th e

ground of lack of ju risd ictio n over th e subject m a tte r in
case falling u n d er Sum m ary Procedure?
A: Yes, lack of jurisdiction over the subject matter is a
ground for motu proprio dismissal of the action under the
Rules on Summary Procedure.
144 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 4 o f th e Rules on S um m ary Procedure provides

for the motu proprio dismissal of the case. It states that:
“Sec. 4 . Duty o f court. — After th e court
determ in es th a t th e case falls under sum m ary
procedure, it m ay, from an exam ination o f th e
allegations therein and such evid en ce as m ay be
attach ed th ereto, d ism iss th e case outright on any o f
th e grounds apparent therefrom for th e d ism issal o f a
civil a ctio n .”

g) Appeal from th e O rder o f D ism issal of th e actio n

w ith o u t tria l based on lack o f ju risd ic tio n over th e
subject m a tte r o f th e case:______________________

Q: W hat are th e courses o f actio n o f th e appellate co u rt

on th e o rder dism issing th e case on th e ground of lack of
ju risd ic tio n over th e su b ject m a tte r?
A: On appeal in case of affirmance of the order the dismissal
on the ground of 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, otherwise it may remand the case.

P rocedural Basis:

Sec. 8, par. 1, Rule 41, Regional Trial Court may affirm

the dismissal of the case on the ground of lack of jurisdiction
over the subject matter and may assume jurisdiction. It states
that:
“Sec. 8. A ppeal fro m orders dism issin g th e ca se
w ith ou t t r ia l — If an appeal is taken from an order
o f th e lower court dism issin g th e case w ithout a trial
on th e m erits, th e Regional Trial Court m ay affirm or
reverse it, as th e case m ay be. In case o f affirm ance
and th e ground o f dism issal is lack o f jurisdiction
over th e subject m atter, th e Regional Trial Court,
if it has ju risd iction thereover, shall try th e case on
th e m erits as if th e case was originally filed w ith it.
 CHAPTER III 145
GENERAL PRINCIPLES IN REMEDIAL LAW

In case o f reversal, th e case shall be remanded for

further proceedings.”

h) Rem edy In case of dism issal o f th e actio n on th e

ground lack of ju risd ictio n over th e subject m a tte r
of th e case:

Q: W hat is th e n atu re o f th e dism issal of th e actio n on

th e ground of lack of ju risd ictio n over th e subject m atte r?
A: Dismissal of the action on the ground of lack of
jurisdiction over the subject matter is without prejudice to
the refiling of the action and therefore not appealable under
Sec. 1, Rule 41, and not one of the grounds that bars refiling.

Procedural Basis:

Sec. 13, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on dismissal of action or claim with prejudice its
refiling. It states that:
“Sec. 13. D ism issal w ith prejudice. — Subject
to the right o f appeal, an order granting a m otion to
dism iss or an affirmative defense that th e cause of
action is barred by a prior judgm ent or by th e statu te
o f lim itations; that th e claim or demand se t forth
in the p la in tiffs pleading has been paid, waived,
abandoned or otherw ise extinguished; or that the
claim on w hich th e action is founded is unenforceable
under the provisions o f the statu te o f frauds, shall bar
th e refiling o f th e sam e action or claim .” (5, R16)

i) P etitio n for an n u lm en t of Ju d g m en t on th e ground

lack of ju risd ictio n over th e subject m a tte r of th e
case:

Q: Is th e rem edy of p etitio n for an n u lm en t of judgm ent

available on th e ground of lack o f ju risd ictio n over th e
subject m a tte r?
A: Yes, the annulment of judgment may be based only on
the grounds of extrinsic fraud and lack of jurisdiction.
146 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 2, Rule 4 7 o f th e 1997 Rules o f Civil P rocedure

provides for the grounds for annulment of judgment. It states
that:
"Sec. 2 . Grounds fo r annulm ent. — The
annulm ent m ay be based only on th e grounds o f
extrin sic fraud and lack o f jurisdiction.
Extrinsic fraud shall n ot be a valid ground if it
was availed of, or could have been availed of, in a
m otion for new trial or p etition for relief."

2. Ju risd ic tio n Over th e P arties

Q: How can th e co u rt acquire ju risd ic tio n over th e

plain tiff or p e titio n e r?
A: This is acquired by the filing of the complaint, petition
or initiatory pleading before the court by the plaintiff or
petitioner and the payment of the docket and other lawful
fees.
Q: How can th e c o u rt acquire ju risd ic tio n over th e
d efen d an t o r resp o n d en t?
A: Jurisdiction over the person of the defendant or
respondent may be acquired in two ways:
1) By the voluntary appearance or submission by the
defendant or respondent to the court (Sec. 20, Rule 14); or
2) By a coercive process issued by the court to him,
generally by a valid service of summons. (Sharuff vs. Bubla,
L-17029, September 30, 1964; Aban vs. Enage, L-30666,
February 25, 1983; Ofelia Herrera-Felvc vs. CA, G.R. No.
143736, August 11, 2004)

| Case Laun

Preliminarily, jurisdiction over the defendant in a civil

case is acquired either by the coercive power of legal processes
 CHAPTER III 147
GENERAL PRINCIPLES IN REMEDIAL LAW

exerted over his person, or his voluntary appearance in court.

As a general proposition, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the court. It is
by reason of this rule that we have had occasion to declare that
the filing of motions to admit answer, for additional time to file
answer, for reconsideration of a default judgment, and to lift
order of default with motion for reconsideration, is considered
voluntary submission to the court’s jurisdiction. This, however,
is tempered by the concept of conditional appearance, such
that a party who makes a special appearance to challenge,
among others, the court’s jurisdiction over his person cannot
be considered to have submitted to its authority. (Rapid City
Realty and Development Corporation vs. Orlando Villa and
Lourdes Paez Villa, G.R. No. 184197, February 11, 2010)

Q: W hat c o n stitu te voluntary appearance?

A: An appearance in whatever form, without explicitly
objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over the person.

A voluntaiy appearance is a waiver of the necessity of

a formal notice. An appearance in whatever form, without
explicitly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court
over the person. While the formal method of entering an
appearance in a cause pending in the courts is to deliver
to the clerk a written direction ordering him to enter the
appearance of the person who subscribes it, an appearance
may be made by simply filing a formal motion, or plea or
answer. This formal method of appearance is not necessary.
He may appear without such formal appearance and thus
submit himself to the jurisdiction of the court. He may
appear by presenting a motion, for example, and unless by
such appearance he specifically objects to the jurisdiction of
the court, he thereby gives his assent to the jurisdiction of
the court over his person. When the appearance is by motion
objecting to the jurisdiction of the court over his person, it
must be for the sole and separate purpose of objecting to
148 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the jurisdiction of the court. If his motion is for any other

purpose than to object to the jurisdiction of the court over
his person, he thereby submits himself to the jurisdiction
of the court. (Ofelia Herrera-Felix vs. Court o f Appeals, et al,
G.R. No. 143736, August 11, 2004, citing Busuego vs. Court
o f Appeals, 151 SCRA 376 [1987], citing Flores vs. Zurbito, 37
Phil. 746 [1918])
Q: Is s p e c ia l a p p e a r a n c e t o c h a lle n g e ju r is d ic t io n o f t h e
c o u r t a v o lu n ta r y s u b m is s io n t o t h e j u r is d ic tio n o f t h e
c o u r t?
A: No, a party who makes a special appearance in court
challenging the jurisdiction of said court due to invalid
service of summons is not submission to the jurisdiction of
the court.

Case Law:

A party who makes a special appearance in court

challenging the jurisdiction of said court based on the
ground of invalid service of summons is not deemed to have
submitted himself to the jurisdiction of the court. (Allan C. Go
vs. Mortimer F. Cordero, G.R. No. 164703, May 4, 2010)
Q: Is acknow ledgm ent o f sum m ons by publication and
asking for an ad d itio n al tim e a v o lu n tary subm ission to
th e ju risd ic tio n o f th e c o u rt?
A: Defendant having acknowledged the summons by
publication and also having invoked the jurisdiction of the
court to secure affirmative relief in his motion for additional
time, he effectively submitted voluntarily to the trial court’s
jurisdiction

Case Law:

A party who makes a special appearance in court

challenging the jurisdiction of the said court based on the
ground of invalid service of summons is not deemed to have
submitted himself to the jurisdiction of the court. (United
Coconut Planters Bank vs. Ongpin, G.R. No. 146593, October
 CHAPTER III 149
GENERAL PRINCIPLES IN REMEDIAL LAW

26, 2001) In this case, however, although the Motion to

Dismiss filed specifically stated as one (1) of the grounds for
lack “personal” jurisdiction.” It must be noted that defendant
had earlier filed a Motion for Time to file an appropriate
responsive pleading even beyond the time provided in the
summons by publication. Such motion did not state that it was
a conditional appearance entered to question the regularity of
the service of summons, but an appearance submitting to the
jurisdiction of the court by acknowledging the summons by
publication issued by the court and praying for additional time
to file a responsive pleading. Consequently, defendant having
acknowledged the summons by publication and also having
invoked the jurisdiction of the court to secure affirmative relief
in his motion for additional time, he effectively submitted
voluntarily to the trial court’s jurisdiction. He is now stopped
from asserting otherwise even before this Court. (Allan C. Go
vs. Mortimer F. Cordero, G.R. No. 164703, May 4, 2010)

3. Ju risd ictio n Over th e Issue of th e Ca

Q: How can th e co u rt acquire ju risd ictio n over th e issue

of th e case?
A: This is determined and conferred by the pleadings filed
in the case by the parties, or by their agreement in a pre-trial
order or stipulation.

This is determined and conferred by the pleadings filed

in the case by the parties, or by their agreement in a pre-trial
order or stipulation, or, at times, by their implied consent
as by the failure of a party to object to evidence on an issue
not covered by the pleadings, as provided in Sec. 5, Rule 10.
(see Lazo, et al. vs. Republic Surety & Ins. Co., Inc., L-27365,
January 30, 1970)
Q: W hat is th e coverage o f th e exercise of ju risdiction of
th e co u rt over th e issue o f th e case?
A: This jurisdiction means that the court must only pass
upon issues raised by the pleadings of the parties
150 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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|_ C aseJ/au n

This jurisdiction means that the court m ust only pass

upon issues raised by the pleadings of the parties. Hence, if
the issue raised by the parties is possession, the court has
no jurisdiction to pass upon the issue of ownership because
it is not an issue in the case. Conversely, if the issue in the
case is ownership and no issue of possession is found in
the pleadings of the parties, the court has no authority to
adjudicate on the possession of the property. Thus, it is not
correct for the court to order the lessee to vacate the premises
where the lessor did not include in his pleadings a claim for
restoration of possession. (I3uce vs. Court of Appeals, 332
SCRA 151)

Q: Is am en d m en t required if th e issues are n o t raised in

th e pleading b u t trie d w ith th e express or im plied c o n sen t
o f th e p artie s?
A: No amendment of such pleading is necessary to cause
them to conform to the evidence.

|j P rocedural Basis:

Sec. 5, Rule 10 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on amendment of pleading to conform or authorize
presentation of evidence. It states that:
“Sec. 5. No am endm ent n ecessary to conform
to or au th orise p resen ta tio n o f evidence. — When
issu e s n ot raised by th e pleadings are tried w ith th e
express or im plied con sen t o f th e parties, th ey shall
be treated in all resp ects as if th e y had been raised
in th e pleadings. No am endm ent o f such pleadings
deem ed am ended is necessary to cause them to
conform to th e evidence.
 CHAPTER III 151
GENERAL PRINCIPLES IN REMEDIAL LAW

4. J u ris d ic tio n Over th e Case

Q: How can th e co u rt acquire ju risd ic tio n over th e case?

A: Jurisdiction over the case is acquired by the court by
the act of the plaintiff in filing the complaint before the said
court.
Q: W hat is th e d istin c tio n betw een ju risd ic tio n over th e
su b ject m a tte r vs. ju risd ic tio n over th e case?
A: Jurisdiction over the subject matter is conferred by
law while jurisdiction over the case is invested by the act
of plaintiff and attaches upon the filing of the complaint or
information.

Case Law:

The case of Villa vs. Ibanez, et al., 88 Phil. 402 (1951) is

authority for the principle that lack of authority on the part of
the filing officer prevents the court from acquiring jurisdiction
over the case. Jurisdiction over the subject matter is conferred
by law while jurisdiction over the case is invested by the act
of plaintiff and attaches upon the filing of the complaint or
information. (People o f the Philippines vs. Hon. Zeida Aurora
B. Garfin, G.R. No. 153176, March 29, 2004)

5. J u ris d ic tio n Over th e R e s

Q: How can th e co u rt acquire ju risd ic tio n over th e r e s ?

A: This is acquired by the actual or constructive seizure by
the court of the thing in question, thus placing it in custodia
legis, as in attachment or garnishment; or by provision of
law which recognizes in the court the power to deal with the
property or subject matter within its territorial jurisdiction,
as in land registration proceedings or suits involving civil
status or real property in the Philippines of a non-resident
defendant.
152 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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III. JURISDICTION OF VARIOUS COURTS

A. O riginal ju risd ic tio n

1. Suprem e C ourt

Q: W hat is th e su b stan tiv e basis o f th e exercise of

original ju risd ic tio n o f th e S uprem e C ourt?
A: Sec. 5(1) of the 1987 Constitution is the substantive law
that confers original jurisdiction to the Supreme Court.*1

S ub stantive Basis:

Sec. 5, par. 1, Art. VIII o f th e 1987 C o n stitu tio n

provides for the cases falling under the original jurisdiction of
the Supreme Court. It states that:
uSec. 5. The Suprem e Court shall have th e
follow ing powers:
1) Exercise original jurisdiction over c a ses af­
fectin g am bassadors, oth er public m in isters and con ­
suls, and over p etition for certiorari, prohibition,
m andam us, quo w arranto, and habeas corpus.”

COMMENTS
Q: W hat are th e cases falling u n d er th e original
ju risd ic tio n o f th e S uprem e C ourt?
A: The Supreme Court shall exercise original jurisdiction
over the following cases, to wit:
(a) Actions involving ambassadors, public ministers
and consuls;
(b) Over petition for certiorari, prohibition, mandamus,
quo warranto, habeas corpus;
(c) Petitions for Writ of Amparo (A.M. No. 07-9-12-SC');
 CHAPTER III 153
GENERAL PRINCIPLES IN REMEDIAL LAW

(d) Petition for Habeas Data (A.M. No. 08-1-16-SC);

(e) Petition writ of continuing mandamus (Sec. 2, Rule
8, Part III of Rules of Procedure in Environmental Cases, A.M.
No. 09-6-8-SC);
(f) Petition for writ of Kalikasan. (Sec. 12, Rule 7, Part
III of Rules of Procedure in Environmental Cases, A.M. No. 09-
6-8-SC)

2. Court o f Ap

Q: W hat is th e natu re o f th e Court of Appeals?

A: The Court of Appeals is primarily designed as an appellate
court that reviews the determination of facts and law made
by the trial courts.

Case Law:

The Court of Appeals is primarily designed as an appellate

court that reviews the determination of facts and law made by
the trial courts. It is collegiate in nature. This nature ensures
standpoints in the review of the actions of the trial court.
But the Court of Appeals also has original jurisdiction over
most special civil actions. Unlike the trial courts, its writs can
have a nationwide scope. It is competent to determine facts
and ideally, should act on constitutional issues that may
not necessarily be novel unless there are factual questions
to determine. (The Diocese of Bacolod, represented by the
most Rev. Bishop Vicente M. Navarra and the Bishop himself
in his personal capacity vs. Commission on Elections and the
Election Officer of Bacolod City, Atty. Mavil V. Majarucon, G.R.
No. 205728, January 21, 2015)

Q: W hat is th e substantive basis of th e exercise of

original ju risd ictio n of th e Court of Appeals?
A: Sec. 9 of B.P. 129, as amended is the substantive law
that confers original jurisdiction to the Court of Appeals.
154 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

S ub stan tiv e Basis:

Sec. 9 o f B.P. 129, otherwise known as the Ju d iciary

R eorganization A ct o f 1980 provides for the original juris­
diction of the Court of Appeals over the following cases. It
states that:
“Sec. 9. Ju risdiction. — The Court o f Appeals
shall exercise.
1) Original ju risdiction to issu e w rits o f man­
dam us, prohibition, certiorari, habeas corpus, and
quo w arranto, and auxiliary w rits or processes,
w hether or n o t in aid o f its appellate jurisdiction. ”

COMMENTS
Q: W hat are th e cases falling u n d er th e original
ju risd ic tio n o f th e C ourt o f A ppeals?
A: The Court of Appeals shall exercise original jurisdiction
over the following cases, to wit:
(a) Petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus;
Q: W hat are th e o th e r cases falling u n d er th e original
ju risd ic tio n of th e C ourt o f Appeals u n d er special ru les?
A: The other cases falling under the original jurisdiction of
the Court of Appeals under special rules are as follows, to wit:
a) Petition for Writ of Amparo (A.M. No. 07-9-12-SC');
b) Petition for Habeas Data (A.M. No. 08-1-16-SC);
c) Petition for Writ of Continuing Mandamus (Sec. 2,
Rule 8, Part III of Rules of Procedure in Environmental Cases,
A.M. No. 09-6-8-SC)-,
d) Petition for Writ of Kalikasan (Sec. 12, Rule 7, Part III
o f Rules o f Procedure in Environmental Cases, A.M. No. 09-6-8-
SC);
e) Petition for freeze order on any monetary instrument,
property, or proceeds relating to or involving any unlawful
 CHAPTER III 155
GENERAL PRINCIPLES IN REMEDIAL LAW

activity as defined under Sec. 3(j) of Republic Act No. 9160 as

amended by Republic Act No. 9194. (Sec. 44 o f A.M. No. 05-
11-04-SC, December 15, 2005)

|p 3 . Regional Tria^C o u rt]

Q: W hat is th e su b stan tiv e b asis of th e exercise of

original ju risd ic tio n o f th e R egional Trial C ourt?
A: Sec. 21 of B.P. 129, as amended is the substantive law
that confers original jurisdiction to the Regional Trial Court.*1

S u b stan tiv e Basis:

Sec. 21 o f B.P. 129 provides for the cases falling under

the original jurisdiction of the Regional Trial Court. It states
that:
“Sec. 2 1 . O riginal Ju risdiction in oth er cases.
— R egional Trial Courts shall exercise original
jurisdiction:
(1) In th e issu an ce o f w its o f certiorari, prohibi­
tio n , m andam us, quo w arranto, habeas corpus, and
inju nction w hich m ay be enforced in any part o f th e
resp ective regions; and
(2) In actio n s affecting am bassadors and other
public m in isters and co n su ls.”

COMMENTS
Q: W hat are th e cases falling u n d er th e original
ju risd ic tio n o f th e R egional Trial C ourt?
A: The Regional Trial Court shall exercise original
jurisdiction over the following cases, to w it
(a) Actions involving ambassadors, public ministers
and consuls;
(b) Over petition for certiorari, prohibition, mandamus,
quo warranto, habeas corpus.
156 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e o th e r cases falling u n d er th e original

jurisdiction of th e Regional Trial Court under special rules?
A: The other cases falling under the original jurisdiction of
the Regional Trial Court under special rules are as follows, to
wit:
a) Actions for annulment of judgment of the Municipal
Trial Court (Sec. 10, Rule 47);
b) Petitions for writ of Amparo (A.M. No. 07-9-12-SC);
c) Petition for habeas data (A.M. No. 08-1-16-SC);
d) Petition writ of continuing mandamus. (Sec. 2, Rule
8, Part III o f Rules o f Procedure in Environmental Cases, A.M.
No. 09-6-8-SC)
Q: Can th e Regional T rial C ourt pass upon th e validity
or reg u larity o r forfeiture proceedings co n d u cted by th e
B ureau o f C ustom s?
A: No. Regional Trial Court has no jurisdiction to review the
validity or regularity or forfeiture proceedings conducted by
the Bureau of Customs even through petitions for certiorari,
prohibition, or mandamus.

Regional trial courts are devoid of any competence to

pass upon the validity or regularity of seizure and forfeiture
proceedings conducted by the Bureau of Customs and to
enjoin or otherwise interfere with these proceedings. Regional
trial courts are precluded from assuming cognizance over
such matters even through petitions for certiorari, prohibition
or mandamus. (Subic Bay Metropolitan Authority vs. Merlino
E. Rodriguez, G.R. No. 160270, April 23, 2010)

Q: W hat is th e su b stan tiv e b asis of th e exercise of

original ju risd ic tio n o f th e S h a r i’a h D istrict C ourt?
 CHAPTER III 157
GENERAL PRINCIPLES IN REMEDIAL LAW

A: Sec. 413(2) of P.D. 1083 or the Code of Muslim Personal

Laws of the Philippines is the substantive law that confers
original jurisdiction to the Shari’ah District Court.

|[^ 8 u b g ta n tiv e ^ B ^ i^

Art. 413 o f P.D. 1083, or The Code of M uslim Personal

Laws o f th e P hilippines enumerates the original jurisdiction
of the Shari’ah District Court over the following cases, to wit:
“Art. 4 1 3 . O riginal ju risdiction . — The Shari’ah
D istrict Court shall have exclusive original jurisdiction
over:
a) All ca ses involving cu stod y, guardianship,
legitim acy, paternity and filiation arising under th is
Code;
b) All c a ses involving disp osition and
se ttle m e n t o f th e e sta te o f deceased M uslim s, probate
o f th e w ills, issuan ce o f letters adm inistration or
appointm ent o f adm inistrator or execu tors regardless
o f th e nature or th e aggregate value o f th e property;
c) P etition s for declaration o f absence and
death and for th e can cellation or correction o f entries
in th e Muslim R egistries m en tioned in T itle VI o f
Book Two o f th is Code;
d) All action s arising from custom ary con tracts
in w hich th e parties are M uslim s, if th e y have n ot
specified w hich law sh all govern th eir relations; and
e) All p etition s for m andam us , prohibition,
injunction, certiorari, habeas corpus, and other
auxiliary writs and p rocesses in aid o f its appellate
ju risd iction .”
Concurrently w ith ex istin g civil courts. The
[Shari’ah] D istrict Court shall have original jurisdiction
over:
a) P etition by th e M uslim s for th e co n stitu tio n
o f a fam ily hom e, change o f nam e, and com m itm ent
o f an in san e person to an asylum ;
b) All other personal or real action s n ot
m en tioned in paragraph 1(d) wherein th e parties are
M uslim s excep t th o se for forcible entry and unlawful
detainer, w hich shall fall under th e exclu sive original
ju risdiction o f th e M unicipal Trial Court; and
158 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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c) All special civil actions for interpleader or

declaratory relief wherein th e parties are Muslims or
the property involve belongs exclusively to M uslim s.”

COMMENTS
Q: What are th e cases falling under th e original
ju risd ictio n of th e S h a r i’a h D istrict C ourt?
A: The Shari’ah District Court shall have exclusive original
jurisdiction over:
a) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under this Code;
b) All cases involving disposition and settlement of the
estate of deceased Muslims, probate of the wills, issuance
of letters administration or appointment of administrator or
executors regardless of the nature or the aggregate value of
the property;

Case Law:
All cases involving disposition, distribution and settlement
of the estate of deceased Muslims, Probate of wills, issuance
of letters administration or appointment of administrators or
executors regardless of the nature or aggregate value of the
property shall be under the exclusive original jurisdiction of
the Shari’ah District Courts. (Montaner us. Shari’ah District
Court, G.R. No. 174975, January 20, 2009)
c) Petitions for declaration of absence and death and
for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI of Book Two of this Code;
d) All actions arising from customary contracts in
which the parties are Muslims, if they have not specified
which law shall govern their relations; and
e) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and other auxiliary writs and
processes in aid of its appellate jurisdiction;
f) Petition by the Muslims for the constitution of a
family home, change of name, and commitment of an insane
person to an asylum;
 CHAPTER III 159
GENERAL PRINCIPLES IN REMEDIAL LAW

g) All other personal or real actions not mentioned

in paragraph 1(d) wherein the parties are Muslims except
those for forcible entry and unlawful detainer, which shall
fall under the exclusive original jurisdiction of the Municipal
Trial Court; and
h) All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
Q: Can S h a r i’a h D istrict C ourt assum es ju risd ic tio n
over th e case if one o f th e p a rtie s is n o t a M uslim ?
A: No. The Shari’ah District Court had no jurisdiction under
the law to decide private respondents’ complaint because not
all of the parties involved in the action are Muslims.

Case Law:

The Shari’a District Court conceded that the Municipality

of Tangkal “is neither a Muslim nor a Christian.” Yet it still
proceeded to attribute the religious affiliation of the mayor
to the municipality. This is manifest error on the part of
the Shari’a District Court. It is an elementary principle
that a municipality has a personality that is separate and
distinct from its mayor, vice-mayor, sanggunian, and other
officers composing it. And under no circumstances can this
corporate veil be pierced on purely religious considerations-
as the Shari’ a District Court has done-without running
afoul the inviolability of the separation of Church and State
enshrined in the Constitution. The Shari’ a District Court had
no jurisdiction under the law to decide private respondents’
complaint because not all of the parties involved in the action
are Muslims. Since it was clear from the complaint that the
real party defendant was the Municipality of Tangkal, the
Shari’a District Court should have simply applied the basic
doctrine of separate juridical personality and motu proprio
dismissed the case. (Municipality o f Tangkal, Province of
Lanao del Norte vs. Hon. Rasad Balindong, in his capacity as
Presiding Judge, Shari’a District Court, 4th Judicial District,
Marawi City, and Heirs of Late Macalabo Alompo, G.R. No.
193340, January 11, 2017)
160 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Exclusive Ju risd ictio n

3
Q: W hat is exclusive ju risd ictio n ?
A: The power to adjudicate a case or proceeding to the
exclusion of all other courts at that stage.

|| C. Exclusive^O riginalj^ *1

1. Suprem e Court

Q: W hat are th e cases falling w ithin th e exclusive

original ju risd ictio n o f th e Suprem e o f C ourt?
A: Supreme Court has exclusive original jurisdiction over
petition for certiorari, prohibition, and mandamus against
judgment, final order, and resolutions of the following:
a) Court of Appeals;
b) Sandiganbayan;
c) Court of Tax Appeals;
d) Commission on Elections;
e) Commission on Audit;
f) Civil Service Commission;
g) Ombudsman in criminal cases. (Salvador vs. Mapa,
G.R. No. 135080, November 28, 2007; Golangco vs. Fung,
Office o f the Ombudsman, G.R. Nos. 147640-147762, October
11, 2006)

|^ 2 ^ C o u r to f ^ p e ^ ^ J J

Q: W hat is th e su b stan tiv e basis of th e exercise of

exclusive original ju risd ictio n of th e C ourt of Appeals?
A: Sec. 9(2) of B.P. 129, as amended is the substantive law
that confers exclusive original jurisdiction to the Court of
Appeals.
 CHAPTER III 161
GENERAL PRINCIPLES IN REMEDIAL LAW

S u b stan tiv e Basis:

Sec. 9 o f B.P. 129, otherwise known as the Ju d iciary

R eorganization Act o f 1980 provides for the original
jurisdiction of the Court of Appeals over the following cases.
It states that:
uSec. 9. Jurisdiction. — The Court o f Appeals
shall exercise.
X XX X

2) E xclusive original ju risd iction over action s

for annulm ent o f judgm en ts o f th e Regional Trial
Courts.”

COMMENTS
Q: Can th e C ourt o f Appeals e n te rta in p e titio n for
an n u lm en t o f ju d g m en t?
A: Yes, pursuant to the above provision of law, the Court
of Appeals shall exercise exclusive original jurisdiction over
actions for annulment of judgments of the Regional Trial
Courts.
Q: W hat are th e o th e r cases falling w ith in th e exclusive
original ju risd ic tio n o f th e C ourt o f A ppeals?
A: The Court of Appeals shall also exercise exclusive
original jurisdiction over petition for certiorari, prohibition, or
mandamus against:
a) Decisions, final orders and resolution of the Regional
Trial Court;
b) Decisions, final orders and resolutions of the
National Labor Relations Commission (A.M. No. 99-2-01-SC;
St. Martin Funeral Homes vs. NLRC, G.R. No. 13086, September
16, 1998)-,
c) Decision, final orders of the Secretary of Labor and
Employment in the exercise of its appellate jurisdiction over
decision, final orders of the following offices, to wit:
162 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

c.l) POEA Administrator in the exercise of its

adjudicatory function in case of violation of the provision of
the Labor Code, and POEA Rules and Regulations:
(a) For petitioner’s refusal to comply with his
deployment assignment, respondent manning agency filed
a complaint against him for breach of contract before the
Philippine Overseas Employment Administration (POEA).
The POEA penalized petitioner with one (1) year suspension
from overseas deployment. The suspension was reduced to
six months by the Secretary of Labor. Petitioner appealed
the latter’s decision with the Office of the President (OP). The
Supreme Court ruled that petitioner’s appeal was erroneous.
The proper remedy to question the decisions or orders of the
Secretary of Labor is via Petition for Certiorari under Rule 65.
Appeals to the OP in labor cases have been eliminated, except
those involving national interest over which the President
may assume jurisdiction. The present case does not affect
national interest. Hence, petitioner’s appeal to the OP did not
toll the running of the period and the assailed decision of
the Secretary of Labor is deemed to have attained finality.”
(Miguel Dela Pena Barairo vs. Office of the President and MST
Marine Services (Phils.), Inc., G.R. No. 189314)
2) Decision of the Secretary of Labor and Employment
over a decision of its duly authorized representatives brought
on appeal in case of violation of apprenticeship agreement
which is already final and executory. (Art. 66 of the Labor
Code)
3) Decision of the National Wage Productivity
Commission on appeal over Wage Order by the Regional
Tripartite Wage Productivity Board. (Art. 121 of the Labor
Code, as amended by R.A. No. 6727, June 9, 1989)
4) Decision over direct and indirect contempt cases
decided by the National Labor Relations Commission.
5) Decision of the Secretary of Labor and Employment
on appeal in case of denial of union registration by the
Regional Director or the Bureau of Labor Relations. (Art. 236
of the Labor Code)
 CHAPTER III 163
GENERAL PRINCIPLES IN REMEDIAL LAW

6) Decision of the Bureau of Labor Relations on appeal

over the order of cancellations of union registration. (Art. 238
o f the Labor Code)
7) Decisions of the Secretary of Labor and Employment
on appeal over the order of the Bureau of Labor Relations
over intra-labor dispute.

3 . S a n d ig a n b a y a n :

Q: W hat is th e n a tu re o f Sandiganbayan.
A: The Sandiganbayan is a special court of the same level
as the Court of Appeals.

Case Law:

The Sandiganbayan is a special court of the same level

as the Court of Appeals. (Edgar A. Payumo, et al. vs. Hon.
Sandiganbayan, et al., G.R. No. 151911, July 25, 2011)
Q: W hat is th e su b stan tiv e b asis of th e exercise of
exclusive original ju risd ic tio n o f S andiganbayan?
A: Sec. 4 of R.A. 10660 is the substantive law that confers
exclusive original jurisdiction to the Sandiganbayan.

|s ^ ^ ^ n ^ e ^ B u U ^

Under Sec. 4 of R.A. 10660 otherwise known as the An

Act Strengthening Further the Functional and Structural
Organization of the Sandiganbayan, Further Amending
Presidential Decree No. 1606, as Amended, and Appropriating
Funds Therefor enumerate the exclusive original jurisdiction
of Sandiganbayan in civil cases. It states that:
"Sec. 4 . Ju risdiction . — The Sandiganbayan
shall exercise exclu sive original jurisdiction in all
civ il c a ses involving:
a. V iolations o f Republic Act No. 3 0 1 9 , as
am ended, otherw ise known a s th e Anti-Graft and
164 CIVIL PROCEDURE: A GUIDE FOR THE B ENCH
AND THE BAR

Corrupt P ractices A ct, Republic Act No. 13 7 9 , and

Chapter II, S ection 2 , T itle VII, Book II o f t h e R evised
Penal Code, where one or more o f th e a ccu sed are
officials occupying th e following p o sitio n s in the
governm ent, w hether in a perm anent, a c tin g or
interim capacity, at th e tim e o f th e co m m issio n of
th e offense:
XXX
“c. Civil and criminal cases filed pursuant to
and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
The Sandiganbayan shall have exclusive original
jurisdiction over p etitio n s for th e issuan ce o f th e
writs o f m andam us, prohibition, certiorari, habeas
corpus, injunction and other ancillary w rits and
p rocesses in aid o f its appellate jurisdiction and over
p etition s o f sim ilar nature, including quo warranto,
arising or th at m ay arise in ca ses filed or w hich m ay
be filed under E xecutive Order Nos. 1 , 2 , 14 and 14-A,
issu ed in 1986: Provided, That th e jurisdiction over
th e se p etition s shall not be exclusive o f th e Supreme
Court, x x x "

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive original
ju risd ictio n o f th e Sandiganbayan in civil cases?
A: The Sandiganbayan shall exercise exclusive original
jurisdiction in civil cases involving:
1) Violations of Republic Act No. 1379;
2) Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
3) Over petitions for the issuance of the writs of
mandamus, prohibition, certiorari, habeas corpus, injunction
and other ancillary writs and processes in aid of its appellate
jurisdiction; and
4) Over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which
 CHAPTER III 165
GENERAL PRINCIPLES IN REMEDIAL LAW

may be filed under Executive Order Nos. 1, 2, 14 and 14-

A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.

Q: W hat is th e n atu re o f forfeiture proceeding u n d er

R.A. 1379?
A: Forfeiture proceedings under Republic Act No. 1379 are
civil in nature.

|| Case Law^

In Garcia v. Sandiganbayan, et al., this court re-affirmed

the doctrine that forfeiture proceedings under Republic Act
No. 1379 are civil in nature. Civil forfeiture proceedings were
also differentiated from plunder cases:
. . . a forfeiture case under RA 1379 arises out of
a cause of action separate and different from a plunder
case. In a prosecution for plunder, what is sought to
be established is the commission of the criminal acts
in furtherance of the acquisition of ill-gotten wealth. On
the other hand, all that the court needs to determine,
by preponderance of evidence, under RA 1379 is the
disproportion of respondent’s properties to his legitimate
income, it being unnecessary to prove how he acquired
said properties. As correctly formulated by the Solicitor
General, the forfeitable nature of the properties under
the provisions of RA 1379 does not proceed from a
determination of a specific overt act committed by the
respondent public officer leading to the acquisition of the
illegal wealth. To stress, the quantum of evidence required
for forfeiture proceedings under Republic Act No. 1379
is the same with other civil cases — preponderance of
evidence. When a criminal case based on demurrer to
evidence is dismissed, the dismissal is equivalent to an
acquittal. (Republic o f the Philippines vs. Fe Roa Gimenez
and Ignacio B. Gimenez, G.R. No. 174373, January 11,
2016, J. Leonen)
166 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Will p rescrip tio n lie in civil cases for th e recovery

of unlaw fully o r illegally acquired p ro p erties of public
officer o r em ployees?
A: No, the right of the State to recover properties unlawfully
acquired by public officials of employees not be barred by
prescription, laches or estoppels, applies only in civil actions
for recovery of ill-gotten wealth.

|| Case Law: ||

The provisions found in Sec. 15, Art. IX of the 1987

Constitution that “the right of the State to recover properties
unlawfully acquired by public officials of employees from them
or from their nominees or transferees shall not be barred by
prescription, laches or estoppels, applies only in civil actions
for recovery of ill-gotten wealth and not to criminal cases.
(Presidential Ad Hoc Fact-Finding Committee on Behest Loans
vs. Desierto, G.R. No. 135715, April 13, 2011, 648 SCRA 586)

Q: W hat is th e n a tu re o f th e C ourt o f Tax Appeals?

A: By virtueofR.A. 9282, an “Act Expanding the Jurisdiction
of the Court of Tax Appeals” as amended, the Court of Appeals
has been divested of its jurisdiction over decisions or orders
of the Court of Tax Appeals, and effectively made the same
as its co-equal court. The decisions of the Divisions of the
CTA are now reviewed “under a procedure analogous to that
provided for in Rule 43 of the 1997 Rules of Civil Procedure
with the CTA, which shall hear the case en banc” and the
latter by the Supreme Court on questions of law under Rule
45. (Sec. 9, R.A. 9282, as amended)
Q: W hat is th e su b stan tiv e b asis o f th e exercise of
exclusive original ju risd ic tio n o f th e C ourt o f Tax Appeals?
A: Sec. 7, paragraph (c) of R.A. 9282 is the substantive law
that confers exclusive original jurisdiction to the Court of Tax
Appeals.
 CHAPTER III 167
GENERAL PRINCIPLES IN REMEDIAL LAW

S u b stan tiv e Basis:

Sec. 7, paragraph (c) o f R.A. 9282, otherwise known

as An Act Expanding the Jurisdiction of the Court of Tax
Appeals (CTA), provides for its exclusive original jurisdiction
in civil cases. It states that:*
“(1) E xclusive original jurisdiction in tax
co llectio n ca ses involving final and execu tory
a ssessm en ts for taxes, fees, charges, and penalties:
Provided, how ever, th a t co llectio n ca ses where th e
principal am ount o f ta x es and fees, exclu sive of
charges and pen alties, claim ed is le ss than One m illion
p esos (P I,0 0 0 ,0 0 0 .0 0 ) shall be tried by th e proper
M unicipal Trial Court, M etropolitan Trial Court and
Regional Trial Court.

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive original
ju risd ic tio n o f th e C ourt o f Tax A ppeals?
A: Court of Tax Appeals shall have exclusive original
jurisdiction over:
“ 1. Exclusive original jurisdiction in tax collection cases
involving final and executory assessments for taxes, fees,
charges, and penalties: Provided, however, that collection
cases where the principal amount of taxes and fees, exclusive
of charges and penalties, claimed is less than One million
pesos (PI,000,000.00) shall be tried by the proper Municipal
Trial Court, Metropolitan Trial Court and Regional Trial
Court.”

5. R egional T rial C ourt (Bar E xam inations 2017, 2016

an d 2010)_______________________________________

Q: W hat is th e su b stan tiv e basis o f th e exercise of

exclusive original ju risd ic tio n o f th e R egional Trial C ourt?
Give a t least five (5) exam ples of exclusive original
ju risd ic tio n o f th e Regional Trial C ourt in Civil C ases?
(Bar E xam ination 2016)
168 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Sec. 19 of B.P. 129, as amended is the substantive law

that confers exclusive original jurisdiction to the Regional
Trial Court.*1

S ub stan tiv e Basis:

Sec. 19 of B.P. 129, as am ended by R.A. 7691,

enumerate the cases falling under the exclusive and original
jurisdiction of the Regional Trial Court. It states that:
“Sec. 19. Ju risdiction in Civil Cases. — Regional
Trial Courts shall exercise exclu sive original
jurisdictions:
(1) In all civil action s in w hich th e subject o f
the litigation is incapable of pecuniary estim ation;
(2) In all civil actio n s w hich involve th e title to,
or p o ssessio n of, real property, or any in terest therein,
where th e a ssessed value o f th e property involved
exceed s Tw enty Thousand P esos (P20,0 0 0 .0 0 ) or
for civil action s in Metro Manila, where su ch value
exceed s Fifty Thousand P esos (P50,000 .0 0 ) excep t
action s for forcible entry into and unlawful detainer
o f lands or buildings, original jurisdiction over w hich
is conferred upon th e M etropolitan Trial Courts,
M unicipal Trial Courts, and M unicipal Circuit Trial
Courts;
(3) In all action s in adm iralty and m aritim e
jurisdiction where th e dem and or claim exceed s
Three Hundred Thousand P esos (P300,0 0 0 .0 0 ) or, in
Metro Manila, where su ch dem and or claim exceed s
Four Hundred thousand pesos (P400,000.00);
(4) In all m atters o f probate, both te sta te and
in te sta te , where th e gross value o f th e e sta te exceed s
Three hundred thousand p esos (P300,0 0 0 .0 0 ) or,
in probate m atters in Metro Manila, w here such
gross value exceed s Four hundred thousand pesos
(P400,000.00);
(5) In all action s involving th e contract o f
marriage and m arital relations;
(6) In all ca ses n ot w ithin th e exclu sive juris­
d iction o f any court, tribunal, person or body exercis­
ing jurisdiction o f any court, tribunal, person or body
exercising judicial or quasi-judicial functions;
 CHAPTER III 169
GENERAL PRINCIPLES IN REMEDIAL LAW

(7) In all civ il actio n s and sp ecial proceedings

falling w ithin th e exclu sive original ju risd iction o f a
Ju ven ile and D om estic R elations Court and o f th e
Court o f Agrarian R elations as now provided by law;
and
(8) In all other c a ses in w hich th e dem and,
exclu sive o f in terest, dam ages o f w hatever kind,
attorney's fees, litigation exp en ses, and c o sts or th e
value o f th e property in controversy exceed s Three
hundred thousand pesos (P300,OOO.OO) or, in such
other c a ses in Metro Manila, where th e dem and,
exclu sive o f th e above-m entioned item s ex ceed s Four
hundred thousand p eso s (P4O0,0 0 0 .0 0 ).” (As am ended
by R.A. No. 7691)

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive and
original ju risd ic tio n o f th e Regional T rial C ourt?
A: The Regional Trial Court has exclusive and original
jurisdiction over the following cases, to wit:
(1) In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation;
(2) In all civil action which involve the title to, or
possession of, real property or any interest therein, where
the assessed value of the property involved exceeds, Twenty
thousand pesos (P20.000.00) or for civil actions in Metro
Manila, were such value exceeds Fifty thousand pesos
(P50,000.00); except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction
over which is conferred upon the Metropolitan Trial Court,
Municipal Trial Courts, and Municipal Circuit Trial Courts;
(3) In all actions in admiralty and maritime jurisdiction
where the demand or claim exceeds Three Hundred Thousand
Pesos (P300,000.00) or, in Metro Manila, where such
demand or claim exceeds Four Hundred Thousand Pesos
(P400,000.00);
(4) In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds Three Hundred
thousand pesos (P300.000.00) or, in probate matters in
170 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Metro-Manila, where such gross value exceeds Four hundred

thousand pesos (P400,000.00);
(5) In all actions involving the contract of marriage and
marital relations;
(6) In all cases, not within the exclusive jurisdiction of
any court, tribunal, person or body exercising jurisdiction
or any court, tribunal person or body exercising judicial or
quasi-judicial functions;
(7) In all civil actions and special proceedings falling
within the exclusive original jurisdiction of a Juvenile and
Domestic Relations Court and of the Court of Agrarian
Relations as now provided by law; and
(8) In all other cases in which the demand, exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in controversy
exceeds Three Hundred Thousand Pesos (P300,000.00) or,
in such other cases in Metro Manila, where the demands
exclusive of the abovementioned items exceeds Four hundred
thousand pesos (P400,000.00). (Sec. 19 of B.P. Big. 129, as
amended by R.A. 7691)

a) Civil actio n in w hich th e su b ject m a tte r is incapable

o f pecu n iary estim atio n :_________________________

Q: How to d eterm in e w h eth er th e su b ject m a tte r o f th e

actio n is incapable o f p ecu n iary e stim a tio n ?
A: In determining whether an action is one the subject
matter of which is not capable of pecuniary estimation is to
ascertain the nature of the principal action and the remedy
sought.

Case Law:

In determining whether an action is one the subject

matter of which is not capable of pecuniary estimation this
Court has adopted the criterion of first ascertaining the nature
of the principal action or remedy sought. If it is primarily
 CHAPTER III 171
GENERAL PRINCIPLES IN REMEDIAL LAW

for the recovery of a sum of money, the claim is considered

capable of pecuniary estimation, and whether jurisdiction
is in the municipal courts or in the courts of first instance
would depend on the amount of the claim. However, where
the basic issue is something other than the right to recover
a sum of money, where the money claim is purely incidental
to, or a consequence of, the principal relief sought, this Court
has considered such actions as cases where the subject of
the litigation may not be estimated in terms of money, and
are cognizable by courts of first instance (now Regional Trial
Courts). Well-entrenched is the rule that jurisdiction over the
subject matter of a case is conferred by law and is determined
by the allegations in the complaint and the character of the
relief sought, irrespective of whether the party is entitled to
all or some of the claims asserted. (Heirs of Juanita Padilla vs.
DominadorMagd.ua, G.R. No. 176858, September 15, 2010)
Q: W hat are th e classic exam ples o f actio n in w hich th e
sub ject m a tte r is incapable o f pecu n iary estim a tio n ?
A: The following actions are considered as one subject
matter is incapable of pecuniary estimation, to wit:
1) A ction for revival o f ju d g m en t.

Case Law:

In determining the jurisdiction of an action whose

subject is incapable of pecuniary estimation, the nature of the
principle action or remedy sought m ust first be ascertained.
If it is primarily for the recovery of a sum of money, the
claim is considered capable of pecuniary estimation and the
jurisdiction of the court depends on the amount of the claim.
But, where the primary issue is something other than the
right to recover a sum of money, where the money claims is
purely incidental to, or a consequence of, the principal relief
sought, such are actions whose subjects are incapable of
pecuniary estimation, hence cognizable by the RTCs.
As an action to revive judgment raises issues of whether
the petitioner has a right to have the final and executory
judgment revived and to have the judgment enforced and
172 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

does not involve recovery of a sum of money, we rule that

jurisdiction over a petition to revive judgment is properly with
the RTCs. Thus, the CA is correct in holding that it does not
have jurisdiction to hear and decide Anama’s action for revival
of judgment. (Douglas F. Anama vs. CITIBANK, N.A. [(formerly
First National City Bank)], G.R. No. 192048, December 2017)
2) An a ctio n for specific perform ance is incapable
of pecu n iary estim atio n .

Case Law:

At the time petitioner filed his suit in the trial court,

statutory law vests on Regional Trial Courts exclusive
original jurisdiction over civil actions incapable of pecuniary
estimation. An action for specific performance, such as
petitioner’s suit to enforce the Agreement on joint child
custody, belongs to this species of actions. Thus, jurisdiction-
wise, petitioner went to the right court. (Herald Black Dacasin
vs. Sharon del Mundo Dacasin, G.R. No. 168785, February 5,
2010 )

Q: W hich co u rt has ju risd ic tio n over a case of specific

perform ance or dam ages in th e a ltern ativ e ?
A: In an action for specific performance OR damages, being
one in the alternative, to determine jurisdiction one must
refer to the amount of damages sought for. If the amount of
damages claimed falls within the jurisdiction of the MTC, then
said court has jurisdiction, otherwise RTC has jurisdiction.

Case Law:
C J C S S I— J S S S I

An action for specific performance is one incapable of

pecuniary estimation which falls within the jurisdiction of the
RTC. But in an action for specific performance OR damages,
being one in the alternative, to determine jurisdiction one
must refer to the amount of damages sought for. If the
amount of damages claimed falls within the jurisdiction of
the MTC, then said court has jurisdiction. Otherwise, the
 CHAPTER III 173
GENERAL PRINCIPLES IN REMEDIAL LAW

RTC has jurisdiction. This is an instance where the damages

shall be considered. (Cruz vs. Tan, 87 Phil. 627) But an
action for specific performance alone or an action for specific
performance AND damages shall be filed with the RTC.
3) A ction for ju d icial p a rtitio n w ith a n n u lm en t of
title an d recovery o f possession.

Q: W hich c o u rt h as ju risd ic tio n over actio n for ju d icial

p a rtitio n w ith a n n u lm en t o f title and recovery of
possessio n ?
A: The action was not merely for partition and recovery of
ownership but also for annulment of title and documents,
the action is incapable of pecuniaiy estimation and thus
cognizable by the RTC.

Case Law:

In view of the foregoing, petitioner’s argument that the

trial court acted without jurisdiction in entertaining the
action of settlement of estate and annulment of title in a single
proceeding is clearly erroneous for the instant complaint is
precisely one for judicial partition with annulment of title and
recovery of possession, filed within the confines of applicable
law and jurisprudence.
Under Section 1 of Republic Act No. 7691 (RA 7691),
amending Batas Pambansa Big. 129, the RTC shall exercise
exclusive original jurisdiction over all civil actions in which the
subject of the litigation is incapable of pecuniary estimation.
Since the action herein was not merely for partition and
recovery of ownership but also for annulment of title and
documents, the action is incapable of pecuniaiy estimation
and thus cognizable by the RTC. Hence, considering that the
trial court clearly had jurisdiction in rendering its decision, the
instant petition for annulment of judgment m ust necessarily
fail. (Sps. Butiong vs. Plazo, G.R. No. 187524, August 5, 2015)
174 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4) C om plaint for n u llity o f co rp o ratio n ’s board

resolution.
Q: W hich c o u rt h as ju risd ic tio n over com plaint for
n u llity o f co rp o ratio n ’s board reso lu tio n ?
A: The Regional Trial has exclusive original jurisdiction
over complaint for nullity of corporation’s board resolution
since the subject matter is incapable of pecuniary estimation.

|| Case Lawj^J

A cursory perusal of Harvest All, et al.’s Complaint and

Amended Complaint reveals that its main purpose is to have
Alliance hold its 2015 ASM on the date set in the corporation’s
by laws, or at the time when Alliance’s SRO has yet to fully
materialize, so that their voting interest with the corporation
would somehow be preserved. Thus, Harvest All, et al.,
sought for the nullity of the Alliance Board Resolution
passed on May 29, 2015 which indefinitely postponed the
corporation’s 2015 ASM pending completion of subscription
to the SRO. Certainly, Harvest All, et al. prayer for nullity,
as well as the concomitant relief of holding the 2015 ASM as
scheduled in the by-laws, do not involve the recovery of sum
of money. The mere mention of Alliance’s impending SRO
valued at PI Billion cannot transform the nature of Harvest
All, et al., action to one capable of pecuniary estimation,
considering that: (a) Harvest All, et al. do not claim ownership
of, or much less entitlement to, the shares subject of the SRO;
and (b) such mention was merely narrative or descriptive
in order to emphasize the severe dilution that their voting
interest as minority shareholders would suffer if the 2015
ASM were to be held after the SRO was completed. If, in
the end, a sum of money or anything capable of pecuniary
estimation would be recovered by virtue of Harvest All, et al.,
complaint, then it would simply be the consequence of their
principal action. Clearly, therefore Harvest All, et al. action
was one incapable of pecuniary estimation. (Dee vs. Harvest
All Investment Limited, G.R. No. 224834, March 15, 2017)
 CHAPTER III 175
GENERAL PRINCIPLES IN REMEDIAL LAW

5) A ction for d eclarato ry relief is an action subject is

incapable of pecuniary estimation since the subject matter is
one incapable of pecuniary estimation which is to determine
any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder, and therefore
falls under the exclusive and original jurisdiction of the
Regional Trial Court (Sec. 1, Rule 63).

C ase Law:

Rule 63 of the Rules of Court governs actions for

declaratory relief. The court with jurisdiction over petitions
for declaratory relief is the Regional Trial Court, the subject
matter of litigation in an action for declaratory relief being
incapable of pecuniary estimation under Section 19 of the
Judiciary Reorganization Act of 1980. (City o f Lapu-Lapu
vs. Philippine Economic Zone Authority, G.R. No. 184203,
November 26, 2014)
6) A ction for refo rm atio n o f in stru m e n t since the
subject of the action is the right of the party to ask for the
changing, adding of the terms and condition in the written
instrument since their true intention is not reflected therein
(Rule 63);
7) P e titio n for co n so lid atio n o f ow nership in the
vendee by virtue of the failure of the vendor to comply with the
provisions of Art. 1616 shall not be recorded in the Registry
of Property without a judicial order, after the vendor has been
duly heard;
8) A ction for su p p o rt since the subject of the litigation
is the right of the applicant to ask for support under the
provision of the law;
9) The Regional Trial Court has exclusive original
jurisdiction over complaint for expropriation since the subject
matter of which is the right of the State to expropriate a
private property upon payment of ju st compensation, which
is incapable of pecuniary estimation. (Sec. 19 of B.P. 129,
otherwise known as the Judiciary Reorganization Act o f 1980)
176 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

b) Civil actio n s involving title to , possession

in te re s t over a real property:

Q: When can th e Regional Trial C ourt assum es

ju risd ic tio n over cases involving title to , possession, or
in te re s t over a real p ro p erty ?
A: In all civil action which involve the title to, or possession
of, real property or any interest therein, where the assessed
value of the property involved exceeds, Twenty thousand
pesos (P20.000.00) or for civil actions in Metro Manila, were
such value exceeds Fifty thousand pesos (P50,000.00); except
actions for forcible entry into and unlawful detainer of lands
or buildings, original jurisdiction over which is conferred
upon the Metropolitan Trial Court, Municipal Trial Courts,
and Municipal Circuit Trial Courts.
Q: W hat is th e effect if th e assessed value of th e pro p erty
is n o t alleged in th e co m p lain t?
A: If the assessed value is not alleged in the complaint, the
Court cannot take judicial notice of the same and therefore it
cannot determine which between the RTC or the Municipal
Trial Court had original and exclusive jurisdiction, and the
case shall be dismissed.

Case Law:

It is clear from their amended complaint that while

respondents claim that their amended complaint before the
RTC is denominated as one for the declaration of validity of
the Deed of Sale and for specific performance, the averments
in their amended complaint and the character of the reliefs
sought therein reveal that the action primarily involves title to
or possession of real property. An action involving title to real
property means that the plaintiffs 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.
The ultimate relief sought by respondents is for the
recovery of the property through the enforcement of its sale
 CHAPTER III 177
GENERAL PRINCIPLES IN REMEDIAL LAW

in their favor by the late spouses Ramiro. Their other causes

of action for the cancellation of the original title and the
issuance of a new one in their name, as well as for injunction
and damages, are merely incidental to the recovery of the
property.
Respondents neither alleged the assessed value of the
property. The Court cannot take judicial notice of the assessed
or market value of lands. Thus, absent any allegation in the
complaint of the assessed value of the property, it cannot
be determined which between the RTC or the Municipal
Trial Court had original and exclusive jurisdiction over
respondents’ action. Consequently, the complaint filed
before the RTC should be dismissed. Respondents also did
not allege its estimated value. As a result, the correct docket
fees could not have been computed and paid by respondents
and the RTC could not have acquired jurisdiction over the
subject matter of the case. All the proceedings before it are
consequently null and void. (Heirs of Late Sps. Ramiro vs. Sps
Bacaron, G.R. No. 196874, February 6, 2019)
Q: W hich c o u rt h as ju risd ic tio n over an a ctio n for
r e in v in d ic a to r ia filed by p a rtie s som e of whom are
m em ber o f indigenous cu ltu ra l co m m unity?
A: Claims and disputes arise between or among parties
who do not belong to the same ICC /IP group, the case shall
fall under the jurisdiction of the regular courts, instead of the
NCIP.

Case Law:

The bone of contention in the present case has already

been extensively discussed in our pronouncement in Unduran,
et al. v. Aberasturi, et al. There, the Court unequivocally
declared that pursuant to Section 66 of the IPRA, the NCIP
shall have jurisdiction over claims and disputes involving
rights of ICC/IP only when they arise between or among
parties belonging to the same ICC/IP group. When such
claims and disputes arise between or among parties who do
not belong to the same ICC/IP group, the case shall fall under
the jurisdiction of the regular courts, instead of the NCIP.
178 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Thus, even if the real issue involves a dispute over a land

which appears to be located within the ancestral domain of
the ICC/IP, it is not the NCIP, but the RTC, which has the
power to hear, try and decide the case. (Galang vs. Walis, G.R.
No. 223434, July 19, 2019)

c) Civil actio n w here th e dem and, exclusive o f co st

an d in te re st, dam ages o f w hatever kind, a tto rn e y ’s
fees, litig atio n expenses, an d c o st (Bar E xam ination
2015- “T o tality R ule”:

Q: When can th e Regional Trial C ourt assum e ju risd ic tio n

over m oney claim s?
A: In all other cases in which the demand, exclusive of
interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs or the value of the property in controversy
exceeds Three Hundred Thousand Pesos (P300,000.00) or,
in such other cases in Metro Manila, where the demands
exclusive of the abovementioned items exceeds Four hundred
thousand pesos (P400.000.00). (Sec. 19 of B.P. Big. 129, as
amended by R.A. 7691)
Q: W hat is th e m eaning o f th e exclusion o f th e te rm
“dam ages o f w hatever k in d ” u n d er Sec. 19(8) and Sec.
31(1) o f B.P. 129, as am ended in d eterm in in g ju risd ic tio n ?
A: The exclusion of the term “Damages of whatever kind”
in determining the jurisdictional amount under Sec. 19(8)
and Sec. 33(1) of B.P. 129, as amended by R.A. 7691, applies
to cases where the damages are merely incidental to or a
consequence of the main cause of action.

Case Law:

The exclusion of the term “Damages of whatever kind”

in determining the jurisdictional amount under Sec. 19(8)
and Sec. 33(1) of B.P. 129, as amended by R.A. 7691, applies
to cases where the damages are merely incidental to or a
consequence of the main cause of action. 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
 CHAPTER III 179
GENERAL PRINCIPLES IN REMEDIAL LAW

considered in determining the jurisdiction of the court. (Irene

Sante and Reybaldo Sante vs. Hon. Edilberto Claravall, G.R.
No. 173915, February 22, 2010)
Q: How to d eterm in e ju risd ic tio n in an actio n for
dam ages?
A: 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.

I Caw Law: |
In Mendoza vs. Soriano, it was held that 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. The
Court therein held that the total amount of monetary claims
including the claims for damages was the basis to determine
the jurisdictional amount. Also, in Iniego vs. Purganan, the
Court has held: “The amount of damages claimed is within
the jurisdiction of the RTC, since it is the claim for all kinds
of damages that is the basis of determining the jurisdiction of
courts, whether the claims for damages arise from the same
or from different causes of action. (Irene Sante and Reynaldo
Sante vs. Hon. Edilberto T. Claravall, in his capacity as
Presiding Judge of Branch 60, Regional Trial Court of Baguio
City and Vita N. Kalashian, G.R. No. 173915, February 22,
2010 )

d) O th er Cases falling u n d er th e Exclusive Original

[ =_ « J u ris < y c U o n o fth e _ R T C ^ _ _ _ _ _ _ _ _ _ _ _ _ ^ _ _ _ _ _

u n d er S ecu rities and R egulation Code:

Q: W hat are th e o th e r cases falling u n d er th e exclusive

and original ju risd ic tio n o f th e R egional T rial C ourt?
A: Over cases or controversies under the provisions of Sec.
5.2 o f th e Securities and Regulation Code (RA. 8799) such
as:
180 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(1) Cases involving devices and schemes employed by

or any acts, of the board of directors, business associations,
its officers or partnership, amounting to fraud or
misrepresentation which may be detrimental to the interest of
the public, and/or of the stockholders, partners, members of
associations, organizations registered with the Commission;
(2) Controversies arising out of intra-corporate or
partnership relations, between and among stockholders
members or associates, between any or all of them and the
corporation or partnership or associations of which they are
stockholders, members or associations, respectively; and
between such corporation, partnership or association and
the state insofar as it concerns their individual franchise or
right to exist as such entity.

Case Law:

At the outset, it must be emphasized that pursuant to

Section 5.2 of R.A. 8799, the SEC’s jurisdiction over intra­
corporate controversies has been transferred to the RTC
as of Special Commercial Courts (SCC) designated by the
Court pursuant to A.M. No. 00-11-03-SC promulgated on
21 November 2000. (GD Express Worldwide N.V. andAmihan
Management Services, Inc. vs. Court of Appeals, G.R. No.
136978, May 8, 2009)

Q: W hich c o u rt h as ju risd ic tio n over in tra-co rp o rate

d isp u te u n d er se q u estratio n by th e PCGG?
A: In intra-corporate dispute involving a corporation
under sequestration of the Presidential Commission on
Good Government (PCGG) falls under the jurisdiction of the
Regional Trial Court (RTC), not the Sandiganbayan.

Case Law:

In intra-corporate dispute involving a corporation

under sequestration of the Presidential Commission on
Good Government (PCGG) falls under the jurisdiction of the
Regional Trial Court (RTC), not the Sandiganbayan. (Philippine
 CHAPTER III 181
GENERAL PRINCIPLES IN REMEDIAL LAW

Overseas Telecommunications Corp. and Philcomsat vs. Victor

Africa, G.R. No. 184622, July 3, 2013, Bersamin, J.)
(3) Controversies in the elections and appointments of
directors, trustees, officers or managers of such corporations,
partnerships or associations;
(4) Petitions of corporations, partnership or associations
to be declared in the state of suspension of payments in
case where the corporation, partnership or associations,
possesses sufficient property to cover all debts but foresees
the impossibility of meeting them when they respectively
fall due or in case where the corporation, partnership or
associations has no sufficient assets to cover liabilities, but
is under the management of the Rehabilitation Receiver or a
Management Committee;
(5) Over petition for annulment of judgment over
decisions and final orders of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Circuit Trial Court; (Sec.
10, Rule 47 o f the 1997 Rules o f Civil Procedure)
(6) Petition for civil forfeiture of monetary instrument,
property, or proceeds representing, involving, or relating to
sin unlawful activity, or to money laundering offenses. (Sec.
3, Title II ofA.M. No. 05-11-04, Rules of Procedure in Cases of
Civil Forfeiture, Assets Preservation, and Freezing o f Monetary
Instrument, Property, or Proceeds representing, involving, or
relating to any Unlawful Activity or Money Laundering Offense
under Republic Act 9160, as amended, December 15, 2005)
Q: Can th e RTC d esignated as a Special Com m ercial
C ourt exercise general ju risd ic tio n (Bar E xam ination
2017)?
A:Yes, even if the RTC is designated as a Special Commercial
Court still it has general jurisdiction and can entertain all
actions/issues not withheld from its plenary powers and its
designation is only a matter of procedure.

Case Law:

The matter of whether the RTC resolves an issue in the

exercise of its general jurisdiction or of its limited jurisdiction
182 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

as a special court is only a matter of procedure and has

nothing to do with the question of jurisdiction. Moreover, it
should be noted that Special Commercial Courts (SCCs) are
still considered courts of general jurisdiction. Section 5.2 of
R.A. No. 8799, (Majestic Plus International, Inc. vs. Bullion
Investment and Development Corporation/Majestic Plus
International, Inc. vs. Bullion Investment and Development
Corporation, et al., G.R. No. 201017/G.R. No. 215289,
December 5, 2016, Peralta, J.)

II 2) Cases u n d er th e Special Rules on A lternative

|| D ispute R esolution (A.M. No. 07-1-08-3C):

Q: W hat are th e cases u n d er th e exclusive original

ju risd ic tio n o f th e Regional Trial C ourt u n d er th e Special
Rules on A lternative D ispute R esolution (A.M. No. 07-11-
08-SC)?
A: The Regional Trial Court shall exercise exclusive original
jurisdiction over the following:
a) Petition questioning the existence, validity, and
enforceability of an arbitration agreement. (Sec. 3.4, Rule
3, Part II o f A.M. No. 07-11-08, Special Rules on Alternative
Dispute Resolution, October 30, 2009)
b) Petition for judicial relief from the ruling of arbitral
tribunal on a preliminary question upholding or declining
jurisdiction. (Sec. 3.12, Rule 3, Part II)
c) Petition for Interim Measure of Protection. (Sec. 5.2,
Rule 3, Part II)
d) Petition for appointment of Arbitrator. (Sec. 6.3, Rule
3, Part II)
e) Petition challenging the appointment of arbitrator.
(Sec. 7.3, Rule 3, Part II)
f) Petition to terminate the mandate of an arbitrator.
(Sec. 8.3, Rule 3, Part II)
g) Petition for assistance in taking an evidence. (Sec.
9.3, Rule 3, Part II)
h) Petition for Protective Order. (Sec. 10.3, Rule 3, Part II)
 CHAPTER III 183
GENERAL PRINCIPLES IN REMEDIAL LAW

i) Petition for confirmation, correction/modification

or vacation of a domestic arbitral award. (Sec. 11.3, Rule 3,
Part U)
j) Petition to recognize and enforce, set aside an
arbitral award. (Sec. 12.3, Rule 3, Part II)
k) Petition to recognize and enforce a foreign arbitral
award.

3) Cases u n d er th e R egional T rial C ourt A cting

as Fam ily C ourt (Bar E xam ination 2015): *1

Q: W hat are th e cases falling u n d er th e exclusive original

ju risd ic tio n o f th e Regional T rial C ourt actin g as a Fam ily
C ourt?
A: The Regional Trial Court acting as Family Court has
exclusive original jurisdiction over:
1) Petitions for guardianship, custody of minor, habeas
corpus in relation to minor (Sec. 3 of A.M. No. 03-04-04-SC
effective May 15, 2003);
2) Petition for custody of minor, habeas corpus in
relation to the latter (Sec. 3 of A.M. No. 03-02-05, effective
April 15, 2003);
3) Petition for adoption of children and revocation of
adoption (A.M. No. 02-6-02, effective August 22, 2002);
4) Complaints for annulment of marriage and
declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those
living together under different status and agreements, and
dissolution of conjugal partnership of gains (Sec. 2, A.M. No.
02-11-10-S, effective March 12, 2009);
5) Petition for support and/or acknowledgment;
6) Summary Judicial Proceedings brought under the
provision of Executive Order No. 209, otherwise known as the
Family Code of the Philippines;
7) Petition for constitution of family home (Sec. 5, R.A.
8369);
184 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8) Petition for declaration of status of children as

abandoned, dependent, or neglected children;
9) Petition for involuntary commitment of a child, or
removal of custody against child placement, or child caring
agency or individual, or commitment of disabled child. (AM.
No. 02-1-19-SC, effective April 10, 2012)
'' ' - ■■ I=
4) D eterm in atio n o f J u s t C om pensation in Agrarian
Cases:

Q: W hich co u rt h as ju risd ic tio n over d e term in a tio n of

ju s t co m p en satio n in ag rarian ?
A: Regional Trial Court as Special Agrarian Court has
exclusive original jurisdiction over determination of just
compensation.

Case Law:

A branch of an RTC designated as a Special Agrarian

Court for a province has the original and exclusive jurisdiction
over all petitions for the determination of ju st compensation
in that province. In Republic vs. Court of Appeals, the Supreme
Court ruled that Special Agrarian Courts have original
and exclusive jurisdiction over two categories of cases: (1)
all petitions for the determination of just compensation to
landowners, and (2) the prosecution of all criminal offenses
under R.A. 6657. (Land Bank o f the Philippines vs. Corazon M.
Villegas, G.R. No. 180384, March 26, 2010)

6. M etropolitan Trial C o u rt/M u n icip al/C ircu it Trial

C ourt (Bar E xam inations 2 0 1 7 an d 2010):________

a) In O rdinary Civil A ction Cases:

Q: W hat is th e su b stan tiv e b asis of th e exercise of

exclusive original ju risd ic tio n o f th e M etropolitan Trial
C ourt/M unicipal C ircuit T rial C o u rts?
 CHAPTER III 185
GENERAL PRINCIPLES IN REMEDIAL LAW

A: Sec. 33 of B.P. 129, as amended is the substantive

law that which confers exclusive original jurisdiction to the
Metropolitan Trial Court/Municipal Circuit Trial Courts.*1

S u b stan tiv e Basis:

Sec. 33 o f B.P. 129, as am ended by R.A. 7691

enumerate the cases falling under the exclusive original
jurisdiction of the Metropolitan Trial Court, Municipal Trial
Court, and Municipal Circuit Trial Court. It states that:
“Sec. 33. Ju risdiction o f M etropolitan Trial
Courts, M unicipal Trial Courts a n d M unicipal Circuit
Trial Courts in Civil Case. — M etropolitan Trial
Courts, M unicipal Trial Courts, and M unicipal Circuit
Trial Courts shall exercise:
(1) E xclusive original ju risdiction over civil
actio n s and probate proceedings, te sta te and in testa te,
including th e grant o f provisional rem edies in proper
c a ses, where th e value o f th e personal property,
e sta te , or am ount o f th e dem and does n ot exceed
three hundred thousand p esos (P300,0 0 0 .0 0 ) or, in
Metro Manila where su ch personal property, e sta te , or
am ount o f th e dem and does n ot exceed four hundred
thousand pesos (P400,0 0 0 .0 0 ), exclu sive o f in terest,
dam ages o f whatever kind, attorney’s fees, litigation
exp en ses, and c o sts, th e am ount o f w hich m ust be
sp ecifically alleged: Provided, That in terest, dam ages
o f w hatever kind, attorney’s fees, litigation exp en ses
and c o sts shall be included in th e determ ination o f
th e filing fees: Provided, fu rth er. That w here th ere are
several claim s or ca u ses o f actio n s betw een th e sam e
or different parties, em bodied in th e sam e com plaint,
th e am ount o f th e dem and shall be th e to ta lity of
th e claim s in all th e ca u ses o f action , irrespective o f
w hether th e cau ses o f action arose out o f th e sam e or
different transactions;
(2) E xclusive original ju risdiction over c a ses o f
forcible entry and unlawful, detainer; Provided, That
w hen in su ch ca ses, th e defendant raises th e question
o f ownership in h is pleadings and th e q u estion o f
p o ssessio n cannot be resolved w ithout deciding the
186 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

issu e o f ownership in h is pleadings and th e question

o f p o ssessio n can n ot be resolved w ithout deciding th e
issu e o f ownership shall be resolved only to determ ine
th e issu e o f possession ; and
(3) E xclusive original ju risdiction in all civil
action s w hich involve title to, or p o ssessio n of, real
property, or any in terest therein where th e a ssessed
value o f th e property or in terest th erein does
n ot exceed Tw enty Thousand P esos (P20,000 .0 0 )
or, in civil action s in Metro Manila, where such
a ssessed value does n o t exceed Fifty thousand
pesos (P50,000 .0 0 ) exclu sive o f in terest, dam ages o f
w hatever kind, attorney's fees, litigation exp en ses
and costs: Provided , That in ca ses o f land n ot declared
for taxation purposes, th e value o f su ch property shall
be determ ined by th e assessed value o f th e adjacent
lo ts.”

COMMENTS

Q: W hat are th e cases falling u n d er th e exclusive original

ju risd ic tio n o f th e M etropolitan T rial C ourts, M unicipal
Trial C o u rts an d M unicipal C ircuit T rial C ourts?
A: Metropolitan Trial Court, Municipal Trial Court, and
Municipal Circuit Trial Court shall exercise exclusive and
original jurisdiction over ordinary civil actions, as follows, to
wit:
1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the grant
of provisional remedies in proper cases, where the value of
the personal property, estate, or amount of the demand does
not exceed Three hundred thousand pesos (P300,000.00)
or, in Metro Manila where such personal property, estate,
or amount of the demand does not exceed Four hundred
thousand pesos (P400,000.00), exclusive of interest, damages
of whatever kind, attorney’s fees, litigation expenses, and
costs, the amount of which m ust be specifically alleged;
2) Exclusive original jurisdiction in all civil actions
which involve title to, or possession of, real property, or any
interest therein where the assessed value of the property
or interest therein does not exceed Twenty Thousand Pesos
 CHAPTER III 187
GENERAL PRINCIPLES IN REMEDIAL LAW

(P20.000.00) or, in civil actions in Metro Manila, where

such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses and costs.
3) In all actions in admiralty and maritime jurisdiction
where the demand or claim does not exceed Three Hundred
Thousand Pesos (P300,000.00) or, in Metro Manila, where
such demand or claim does not exceed Four Hundred
Thousand Pesos (P400,000.00);
4) In all other cases in which the demand, exclusive
of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the property in
controversy does not exceed'Three Hundred Thousand Pesos
(P300,000.00) or, in such other cases in Metro Manila, where
the demands exclusive of the abovementioned items does not
exceed Four hundred thousand pesos (P400,000.00). (Sec. 19
ofB.P. Big. 129, as amended by R.A. 7691)
Q: W hat are th e real actio n s falling w ithin th e ju risd ic tio n
of MTC or MCTC?
A: The cases falling within the jurisdiction of the Metropolitan
Trial Court/Municipal Circuit Trial Courts involving title to,
possession, or interest over a real property, are as follows, to
wit:
1) Recovery o f ow nership o f land.

Case Law:

A complaint for the recovery of ownership of parcel of

land with a value of P5,240.00 is within the jurisdiction of the
Municipal Trial Court. (Duero vs. Court o f Appeals, G.R. No.
131282, January 4, 2002)
2) R econveyance o f real pro perty, rem oval o f cloud
in a title o f pro p erty , can cellatio n o f title o f real property.

Case Law:

Thus, an MTC can now have jurisdiction over cases

involving ownership of land. Under the former law, these
188 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

cases were under the jurisdiction of the RTC. H ence, an

actio n for reconveyance o f real p roperty, removal of a
cloud in a title of real property, cancellation of title to real
property and similar actions shall fall within the jurisdiction
of the MTC or the RTC depending upon the assessed value of
the land involved. Before the amendments introduced by R.A.
7691, they were within the jurisdiction of the RTC because of
express provision of the old law and also because they were
considered also as actions incapable of pecuniaiy estimation.
(Heirs of Valeriano Concha vs. Spouses Gregorio Lumocso,
G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala,
July 22, 2009)

3) A ctio n pub licia n a (Bar E xam ination 2010).

Case Law:

Jurisdiction over a case of a ctio n publiciana, also now

depends upon the assessed value of the property involved.
(Quinagoran vs. Court of Appeals, August 24, 2007; Atuel vs.
Valdez, 403 SCRA 517) However, even if the case of accion
publiciana is cognizable by the MTC because of its assessed
value, the case will not be covered by a summary proceeding
because it is no longer a case of unlawful detainer or forcible
entry.
4) Accion rtin vin d ica to ria .*5

Case Law:

Jurisdiction over an a ctio n rtin vin d ica to ria also

depends upon the assessed value of the land or property.
(Hilario vs. Salvador, 457 SCRA 815) This action, like accion
publiciana, is no longer the exclusive domain of the RTC.
5) A ction for In terp lead er in case th e subject m a tte r
of th e actio n is a real property.
a) If the assessed value of the real property exceeds
twenty thousand pesos (P20,000.00) outside of Metro Manila
or fifty thousand pesos (P50,000.00) within Metro Manila
jurisdiction lies with the Regional Trial Court;
 CHAPTER III 189
GENERAL PRINCIPLES IN REMEDIAL LAW

b) If the assessed value of the real property does not

exceed twenty thousand pesos (P20.000.00) outside of Metro
Manila or fifty thousand pesos (P50.000.00) within Metro
Manila jurisdiction lies with the Metropolitan Trial Court,
Municipal Trial Court, Municipal Circuit Trial Court.
6) A ction for q u ietin g o f title or rem oval of clouds.

C a se Law:

Thus, an MTC can now have jurisdiction over cases

involving ownership of land. Under the former law, these
cases were under the jurisdiction of the RTC. Hence, an
action for reconveyance of reeil property, removal of a cloud
in a title of real property, cancellation of title to real property
and similar actions shall fall within the jurisdiction of the
MTC or the RTC depending upon the assessed value of the
land involved. Before the amendments introduced by R.A.
7691, they were within the jurisdiction of the RTC because of
express provision of the old law and also because they were
considered also as actions incapable of pecuniaiy estimation.
(Heirs o f Valeriano Concha vs. Spouses Gregorio Lumocso,
G.R. No. 158121, December 12, 2008; San Pedro vs. Asdala,
July 22, 2009)

b) Cases u n d er th e Rules on Sum m ary Procedure:

Q: W hat is th e procedural b asis o f th e exercise of

exclusive original ju risd ic tio n o f th e M etropolitan Trial
C ourt/M unicipal C ircuit Trial C ourts over cases governed
by th e Rules on Sum m ary P rocedure?
A: Sec. 1 (A) of the Rules on Summary Procedure the basis
to the Metropolitan Trial Court/Municipal Circuit Trial
Courts in civil cases which are summary in nature.

|| P rocedural Basis:

Sec. 1, A (1) of th e 1991 Rules on Sum m ary P rocedure

enumerate the cases falling under summary proceedings. It
states that:
190 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 1. Scope. — This rule shall govern the

sum m ary procedure in th e M etropolitan Trial Courts,
th e Municipal Trial Courts in C ities, th e Municipal
Trial Courts, and th e M unicipal Circuit Trial Courts in
th e following ca ses falling w ithin their jurisdiction:
A. Civil Cases:
1) All c a ses o f forcible entry and unlawful
detainer, irrespective o f th e am ount o f dam ages
or unpaid rentals sought to be recovered. Where
attorney’s fees are awarded, th e sam e shall not
exceed Twenty thousand p esos (P20,0 00.00).
2) All other cases, excep t probate
proceeding, where th e total am ount o f plaintifTs
claim does not exceed one hundred thousand
p esos (P100,0 0 0 .0 0 ) or Two hundred thousand
pesos (P20 0 ,0 0 0 .0 0 ) in M etropolitan Manila,
exclusive o f in terest and c o s ts .” (As a m en d ed by
A M . No. 02-11-09-SC, d a te d N ovem ber 12, 2 0 0 2 ;
th is a m en d m en t to o k e ffe c t on N ovem ber 2 5 ,
2002)

COMMENTS
Q: W hat are th e cases falling u n d er th e Rules on
Sum m ary Procedure?
A: Cases falling under the Rules on Summary Procedure
under Metropolitan Trial Court, Municipal Trial Court, and
Municipal Circuit Trial Court shall be as follows, to wit:
1. Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer. (Sec. 33[2] o f B.P. 129, as
amended by R.A. 7691) (Bar E xam ination 2018)

Case Law:

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. (Onquit vs. Binamira-Parcia,
297 SCRA 354 [1998]) But it is the duty of the court to receive
evidence to determine the allegations of tenancy. If, after
 CHAPTER III 191
GENERAL PRINCIPLES IN REMEDIAL LAW

hearing, tenancy had, in fact, been shown to be the real issue,

the court should dismiss the case for lack of jurisdiction.
(Cervantes vs. Court of Appeals, citing Isidro vs. Court of
Appeals, 228 SCRA 503 [1993]; Amando G. Sumawang vs.
Engr. Eric D. De Guzman, G.R. No. 150106, September 8,
2004)
2. All other cases, except probate proceedings, where
the total amount of the plaintiffs claim does not exceed one
h u n d r e d t h o u s a n d p e s o s (P 1 0 0 ,0 0 0 .0 0 ) o r tw o h u n d r e d
thousand pesos (P200,000.00) in Metropolitan Manila,
exclusive of interest and costs. (Sec. 1[A], par. 2 of the 1991
Rules on Summary Procedure, as amended by A.M. No. 02-11-
09-SC, November 25, 2002)

c) Sm all Claim s Cases:

Q: W hat is th e procedural basis o f th e M etropolitan Trial

C ourt/M u n icip al C ircuit T rial C ourts to e n te rta in sm all
claim s cases?
A: Sec. 2 of the 2016 Revised Rules on Small Claims Cases,
as amended is the procedural basis for the Metropolitan
Trial Court/Municipal Circuit Trial Courts to entertain small
claims cases.

P rocedural Basis:

Sec. 2 o f th e R evised 2016 Rules of P rocedure on

Sm all Claim s Cases (A.M. No. 08-8-7, as am ended) provides
for the rule on small claims cases. It states that —
“Sec. 2 T hese R ules shall govern th e procedure in
actio n s before th e M etropolitan Trial Courts (MeTCs),
M unicipal Trial Courts in C ities (MTCCs), M unicipal
Trial Courts (MTCs) and M unicipal Circuit Trial Courts
(MCTCs) for paym ent o f m oney where th e value o f th e
claim d oes n o t exceed Two Hundred Thousand P esos
(WOO,0 0 0 .0 0 ) exclu sive o f in terest and c o s ts .”
192 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat case falls u n d er th e R ules on Sm all Claim s?
A: Payment of money where the value of the claim does not
exceed Two Hundred Thousand Pesos (P200,000.00 [now
P400,000.00]) exclusive of cost and interest. (Sec. 2, of the
Revised 2016 Rules of Procedure for Small Claims Cases, as
amended; A.M. No. 08-8-07, October 27, 2009)
Q: W hat is th e rem edy in case o f a decision in Sm all
Claim s Case (Bar E xam ination 2013)?
A: Pursuant to Sec. 24 of the 2016 Revised Rules on
Small Claims Cases, the decision is final, unappealable and
immediately executory, therefore, in absence of in the absence
of any plain, adequate and speedy remedy or appeal in the
ordinary course of law, the proper remedy is a petition for
certiorari under Sec. 1, Rule 65 with application for temporary
restraining order and/or writ of injunction in order to restrain
the execution of the decision.*1

A m endm ent to 2 0 1 6 Revised Rules on Sm all Claim s

11 Cases (Bar E xam ination 2018);

OCA CIRCULAR NO. 45-2019

To ALL JUDGES AND CLERKS OF COURT OF
THE FIRST LEVEL COURTS

SUBJECT AMENDMENTS TO SECTION8 2 AND 8 OF A M .

NO. 08-8-7-SC OR THE REVISED RULES OF PROCEDURE
FOR SMALL CLAIMS CASES
In accordance with the 26 February 2019 Resolution
in A.M. No. 08-8-7-SC or The Revised Rules of Procedure
for Small Claims Cases, the Court En Banc RESOLVED to
AMEND Sections 2 and 8 of the Revised Rules of Procedure
for Small Claims Cases, the full text of which is reproduced
as follows:
"See. 2 . Scope. — T hese R ules shall govern
procedure in actio n s before th e M etropolitan Trial
 CHAPTER III 193
GENERAL PRINCIPLES IN REMEDIAL LAW

Courts (MeTCs), M unicipal Trial Courts in C ities

(MTCCs), M unicipal Trial Courts (MTCs) and M unicipal
Circuit Trial Courts (MCTCs) for paym ent o f m oney
where th e value o f th e claim does n ot exceed th e
jurisdictional am ount o f th e se courts under Republic
Act No. (R.A.) 7691 (Four Hundred Thousand Pesos
[P400,000.00] for th e MeTCs and Three Hundred
Thousand P esos [P300,000.00] for th e MTCCs, MTCs,
and MCTCs), exclusive o f in terest and c o s ts .”
“S ection 8. Joinder o f Claims. — Plaintiff m ay
join in a sin gle sta tem en t o f claim one or m ore
separate sm all claim s against a defendant provided
th at th e to ta l am ount claim ed, exclu sive o f in terest
and c o sts, d oes not exceed th e jurisdictional am ount
o f th e concerned court under R.A. 7691 (Four Hundred
Thousand P esos [P400,000.00] for th e MeTCs and
Three Hundred Thousand P esos [P300,000 .0 0 ] for the
MTCCs, MTCs, and MCTCs).” (Am endm ents in bold)
The appropriate Sm all Claims Forms are likew ise
am ended to reflect th e increased threshold am ount of
P 400,0 0 0 .0 0 for th e MeTCs.
The am endm ents to S ectio n s 2 and 8 o f th e
R evised R ules o f Procedure for Sm all Claims Cases
were published in th e Philippine Daily Inquirer and
Manila B ulletin on 15 March 2 0 1 9 , and th e sam e will
take effect on 1 April 2 0 1 9 .
Strict com pliance is enjoined.
21 March 2 0 1 9 ”

Q: W hat is th e purpose o f Sm all Claim s Case?

A: It is designed to function quickly and informally since
there are no lawyers, no formal pleadings, and no strict legal
rules of evidence.

|_ C a s e J j iw ^

The small claims process is designed to function quickly

and informally. There are no lawyers, no formal pleadings,
and no strict legal rules of evidence, x x x Thus, the intention
of the law is clear when it provided a period of five (5) days
from receipt of the order of re-assignment to hear and decide
194 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

cases, if a motion for re-assignment of a case has been granted

by the Executive Judge. (Ernesto Z. Orbe vs. Judge Manolito
Gumarang, A.M. No. MTJ-11-1792, September 26, 2011)

|| 7. S h a r i’a h C ircuit C ourt

Q: W hat is th e su b stan tiv e basis w hich confers exclusive

and original ju risd ic tio n to S h a r i’a h C ircuit C ourts?
A: Art. 155 of P.D. 1083 or the Code of Muslim Personal
Laws of the Philippines confers exclusive original jurisdiction
to Shari’ah Circuit Courts.*23

S u b stan tiv e Basis:

Art. 155 o f P.D. 1083, otherwise known as The Code

of M uslim P ersonal Laws o f th e P hilippines, the Shari’ah
Circuit Court has exclusive original jurisdiction over the
following cases, to wit:
"Art. 155. Jurisdiction. — The S h arl’a h ’s Circuit
Court shall have exclu sive original ju risdiction over:
XXX
2) All civil actio n s and proceedings betw een
parties who are M uslim s or have been married in
accordance w ith Art. 13 involving disputes relating
to:
a) Marriage;
b) Divorce recognized under th is Code;
c) Betrothal or breach o f contract o f
marriage;
d) Custom ary dower (mahrf,
e) D isposition and distribution of
property upon divorce;
f) M aintenance and support, and
consolatory gifts (mut’af, and
g) R estitu tion of m arital gifts;
3) All c a ses involving disp u tes relative to com ­
m unal properties.”
 CHAPTER III 195
GENERAL PRINCIPLES IN REMEDIAL LAW

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive and
original ju risd ictio n o f th e S h a r i’a h C ircuit C ourt?
A: The Shari’ah’s Circuit Court shall have exclusive original
jurisdiction over:
1) All civil actions and proceedings between parties
who are Muslims or have been married in accordance with
Art. 13 involving disputes relating to:
a) Marriage;
b) Divorce recognized under this Code;
c) Betrothal or breach of contract of marriage;
d) Customary dower (mahr);
e) Disposition and distribution of property upon
divorce;
f) Maintenance and support, and consolatory
gifts (mut’a)-,
g) Restitution of marital gifts; and
h) All cases involving disputes relative to
communal properties.

3
1) All cases involving d isp u tes relative to com m unal
p roperties._____________________________

nr Special Ju risd ic tio n ||*1

Q: W hat co u rts are conferred w ith special ju risd ic tio n ?

A: The following courts shall exercise special jurisdiction, to
wit:
1) Regional Trial Court;
2) Metropolitan/Municipal Trial Courts.

jj^ T jR eg io n al Trja ^ C o u rt|

Q: W hat is th e su b stan tiv e basis w hich confers special

ju risd ictio n to th e Regional Trial C ourts?
196 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Sec. 23, B.P. 129, as amended confers special jurisdiction

to the Regional Tried Courts.

S ub stan tiv e Basis:

Sec. 23 o f B.P. 129, as amended, provides for the special

jurisdiction of the Regional Trial Court in the following cases:
"Sec. 2 3 . S pecial Ju risdiction to tr y sp ecia l
cases. — The Suprem e Court m ay designate certain
branches o f th e Regional Trial Courts to handle
exclu sively crim inal c a ses, ju ven ile and d om estic
relations ca ses, agrarian cases, urban land reform
c a ses w hich do n o t fall under th e ju risdiction o f
quasi-judicial bodies and agen cies, and or su ch other
sp ecial c a ses as th e Suprem e Court m ay determ ine in
th e in terest o f a speedy and efficien t adm inistration
o f ju s tic e .”

COMMENTS
Q: W hat are th e cases falling u n d er th e special
ju risd ic tio n of th e Regional Trial C ourts?
A: The Supreme Court may designate certain branches of
the Regional Trial Courts to handle exclusively the following
special cases, to wit:
a) Criminal cases;
b) Juvenile and domestic relations cases;
c) Agrarian cases;
d) Urban land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies; and
e) Such other special cases as the Supreme Court
may determine in the interest of a speedy and efficient
administration of justice.

a) R egional Trial C ourt actin g as Fam ily C ourt

(Bar E xam ination 2015):

Q: W hat are th e cases falling under th e special jurisdiction

of th e Regional Trial Court acting as a Family C ourt?
 CHAPTER III 197
GENERAL PRINCIPLES IN REMEDIAL LAW

A: The Regional Trial Court acting as Family Court has

exclusive original jurisdiction over:
1) Petitions for guardianship, custody of minor, habeas
corpus in relation to minor (Sec. 3 o f A.M. No. 03-04-04-SC
effective May 15, 2003);
2) Petition for custody of minor, habeas corpus in
relation to the latter (Sec. 3 of A.M. No. 03-02-05, effective
April 15, 2003);
3) Petition for adoption of children and revocation of
adoption (A.M. No. 02-6-02, effective August 22, 2002);
4) Complaints for annulment of marriage and
declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those
living together under different status and agreements, and
dissolution of conjugal partnership of gains (Sec. 2, A.M. No.
02-11-10-S, effective March 12, 2009);
5) Petition for support and/or acknowledgment;
6) Summary Judicial Proceedings brought under the
provision of Executive Order No. 209, otherwise known as the
Family Code of the Philippines;
7) Petition for constitution of family home (Sec. 5, R.A.
8369);
8) Petition for declaration of status of children as
abandoned, dependent, or neglected children;
9) Petition for involuntary commitment of a child, or
removal of custody against child placement, or child caring
agency or individual, or commitment.

b) R egional T rial C ourt A cting as Special C om m ercial |

Court: 3

Q: W hat are th e cases falling u n d er th e special

ju risd ic tio n o f th e R egional Trial C ourt actin g as Special
C om m ercial C ourt?
A: Regional Trial acting as Special Commercial Court shall
exercise jurisdiction over the following:
198 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a) All civil actions for violations of intellectual property

rights provided for in Republic Act 8293 or the Intellectual
Property Code, as amended;
b) Civil actions for infringement of Patent (Section 76),
Utility Model (Section 108) and Industrial Design (Section
119);
c) Trademark Infringement (Section 155 in relation to
Section 163);
d) Unfair Competition (Section 168 in relation to
Section 163);
e) Actions concerning trademark license contracts
(Section 150 in relation to Section 163);
f) Actions concerning imported merchandise or goods
bearing infringing marks or trade names (Section 166 in
relation to Section 163);
g) Actions for cancellation of the registration of a
collective mark (Section 167 in relation to Section 163), False
Designations of Origin; False Description or Representation
(Section 169 in relation to Section 163), Breach of Contract
(Section 194);
h) Civil actions for infringement of copyright, moral
rights, performers’rights, producers’rights, and broadcasting
rights (Sections 177, 193, 203, 208, 211, and 216); and
i) Other violations of intellectual property rights as
may be defined by law. (Sec. 2 of A.M. No. 10-3-10-SC, October
18, 2011, Rules o f Procedure for Intellectual Property Rights
Cases)

2. M etropolitan Trial C ourt, M u n icipal/C ircuit

T rial Court:

Q: W hat is th e su b stan tiv e basis w hich confers special

ju risd ic tio n to th e M etro p o litan /M u n icip al/C ircu it Trial
C ourts?
A: Sec. 35, B.P. 129, as amended confers special jurisdiction
to the Metropolitan/Municipal/Circuit Trial Courts.
 CHAPTER III 199
GENERAL PRINCIPLES IN REMEDIAL LAW

S ub stan tiv e Basis:

Sec. 35 of B.P. 129, as amended, provides for the special

jurisdiction of the Metropolitan Trial Court, Municipal Trial
Court, Municipal Circuit Trial Court in certain cases. It states
that:
“Sec. 3 5 . S pecial Jurisdiction in certain cases.
— In th e absence o f all th e Regional Trial Judges
in a province or c ity , any M etropolitan Trial Judge,
M unicipal Trial Judge, M unicipal Circuit Trial Judge
m ay hear and decide petition ers for a writ o f habeas
corpus or applications for bail in crim inal c a ses in
th e province or c ity where th e absent Regional Trial
Judges s it.”

COMMENTS
Q: W hat are th e cases falling u n d er th e special
ju risd ic tio n o f th e MTC/MCTC?
A: Cases falling under the special jurisdiction of the
Metropolitan/Municipal/Circuit Trial Courts, are as follows,
to wit:
a) Petition for habeas corpus; and
b) Application for bail in criminal cases in the province
or the city where the absent Regional Trial Judge sit.

E. D elegated Ju risd ic tio n (Bar E xam ination 201

1. M etropolitan Trial C ourt, M unicipal/C ircuit

Trial Court:
Q: W hat is th e su b stan tiv e basis w hich confers delegated
ju risd ic tio n to th e M etropolitan/M unicipal/M unicipal
C ircuit Trial C ou rts?
A: Sec. 34, B.P. 129, as amended confers delegated
jurisdiction to the Metropolitan/Municipal/Municipal Circuit
Trial Courts.
200 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

S u b stan tiv e Basis:

Sec. 34 o f B.P. 129, as am ended provides for the

delegated jurisdiction of the Metropolitan Trial Court over
cadastral and land registration cases. It states that:
"See. 3 4 . D elegated Ju risdiction in C a d a stra l
an d Land R egistration Cases. — M etropolitan Trial
Courts, M unicipal Trial Courts, and M unicipal Circuit
Trial Courts m ay be assigned by th e Suprem e Court
to hear and determ ine cadastral or land registration
c a ses covering lo ts where there is no controversy
or opposition, or c o n tested lo ts where th e value
o f w hich d oes not exceed One hundred thousand
p esos (PlOO,0 0 0 .0 0 ), su ch value to be ascertained
by th e affidavit o f th e claim ant or by agreem ent o f
th e resp ective claim ant if there are more than one,
or from th e corresponding tax declaration o f th e
real property. Their d ecision in th e se c a ses shall be
appealable in th e sam e m anner as d ecision s o f th e
R egional Trial Courts. (As am ended by R.A. No. 7 691)”

COMMENTS
Q: W hat are th e cases falling u n d er th e delegated
ju risd ic tio n of th e M etropolitan Trial C ourts, M unicipal
T rial C ourts, an d M unicipal C ircuit Trial C ourts?
A: The Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts can exercise delegated
jurisdiction as assigned by the Supreme Court over the
following cases:
1) U nco n tested lots:
To hear and determine cadastral or land registration
cases covering lots where there is no controversy or opposition.
2) C o n tested lots:
Contested lots where the value of which does not exceed
P I00,000.00. The value of the land shall be ascertained by
the affidavit of the claimant or by the claimants if there are
several, or from the tax declaration of the real property.
 CHAPTER III 201
GENERAL PRINCIPLES IN REMEDIAL LAW

Case Law:

[T]he MTC has delegated jurisdiction in cadastral and

land registration cases in two instances: first, where there is
no controversy or opposition; or, second, over contested lots,
the value of which does not exceed P100,000.00.
The case at bar does not fall under the first instance,
because petitioner opposed respondent Corporation’s
application for registration on 8 January 1998. (Republic of
the Philippines vs. Bantigue Point Development Corporation,
G.R. No. 162322, March 14, 2012)

Q: W hat is th e basis for d eterm in in g th e value o f th e

p ro p erty ?
A: The value of the property be ascertained in three ways:
a) by the affidavit of the claimant; b) by agreement of the
respective claimants, if there are more than one; or, c) from
the corresponding tax declaration of the real property.

| Case Law:

Contrary to petitioner’s contention, the value of the land

should not be determined with reference to its selling price.
Rather, Sec. 34 of the Judiciary Reorganization Act provides
that the value of the property sought to be registered may
be ascertained in three ways: first, by the affidavit of the
claimant; second, by agreement of the respective claimants,
if there are more than one; or, third, from the corresponding
tax declaration of the real properly.
In this case, the value of the property cannot be
determined using the first method, because the records are
bereft of any affidavit executed by respondent as to the value
of the property. Likewise, valuation cannot be done through
the second method, because this method finds application
only where there are multiple claimants who agree on and
make a joint submission as to the value of the property. Here,
only respondent Bantigue Point Development Corporation
claims the property.
202 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The value of the property m ust therefore be ascertained

with reference to the corresponding Tax Declarations
submitted by respondent Corporation together with its
application for registration. (Republic of the Philippines vs.
Bantigue Point Development Corporation, G.R. No. 162322,
March 14, 2012)
Q: W hat is th e rem edy in case o f adverse decision of th e
MTC/MCTC in cad astral an d land reg istratio n cases in
th e exercise o f its delegated ju risd ic tio n ?
A: Under Sec. 34 o f B.P. 129, as amended, the decisions
of the MTC/MCTC in cadastral and land registration cases
“shall be appealable in the same manner as decisions of the
regional trial courts* which is an implied reference to Rule 41
of the Rules on Civil Procedure on appeals from the decisions
of the Regional Trial Court in the exercise of its original
jurisdiction to the Court of Appeals by way of notice of appeal
within fifteen (15) days from notice of the judgment or the
order denying the motion for reconsideration or new trial.

jj^ R ^ ^ p e ^ ^ e J u ris ^ c tio ^ J

a) Suprem e C ourt

Q: W hat is th e su b stan tiv e b asis w hich confers

ju risd ic tio n to th e Suprem e C ourt to review decisions of
th e lower c o u rts?
A: Sec. 5(2), Art. VIII of the 1987 Constitution confers
power to the Supreme Court to review the decision of the
lower courts.

C o n stitu tio n a l Basis:

Sec. 5, Art. VIII, par. (2) o f th e 1987 C o n stitu tio n

provides for the power of the Supreme Court to review cases
decided by the lower courts. It states that:
“(2) Review, revise, reverse, m odify, or affirm on
appeal or certiorari , as th e law or th e R ules o f Court
 CHAPTER III 203
GENERAL PRINCIPLES IN REMEDIAL LAW

m ay provide, final judgm en ts and orders o f lower

courts in:
(a) All c a ses in w hich th e con stitu tio n a lity
or validity o f any treaty, international or
execu tive agreem ent, law, presidential decree,
proclam ation, order, in struction, ordinance, or
regulation is in question.
(b) All c a ses involving th e legality o f any
tax, im post, a ssessm en t, or toll, or any penalty
im posed in relation th ereto.
(c) All ca ses in w hich th e ju risd iction o f
any lower court is in issu e.
(d) All crim inal c a ses in w hich th e penalty
im posed is reclusion perpetrua or higher.
(e) All ca ses in w hich only an error or
question o f law is involved.”

COMMENTS
Q: W hat are th e cases falling u n d er th e appellate
ju risd ic tio n o f th e S uprem e C ourt?
A: The Supreme Court may review, revise, reverse, modify,
or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts
in:
(a) All cases in which the constitutionality or validity
of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court
is in issue.
(d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
(e) All cases in which only an error or question of law is
involved
204 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e Cases w hich sh all be decided by th e

S uprem e C ourt E n B a n c?
A: Sec. 4, paragraph (2), Art. VIII o f th e 1987 C o n stitu tio n
provides for the cases which shall be decided by the Supreme
Court en banc. It states that:
“2. All cases involving th e con stitu tio n a lity
o f a treaty, international or execu tive agreem ent,
or law, w hich shall be heard by th e Suprem e Court
en banc, and all other c a ses w hich under th e Rules
o f Court are required to be heard en banc, including
th o se involving th e con stitu tio n a lity , application,
or operation o f presidential d ecrees, proclam ations,
orders, in stru ction s, ordinances, and other
regulations, shall be decided w ith th e concurrence o f
a m ajority o f th e Members who actually took part in
th e deliberations on th e issu e s in th e case and voted
th ereon .”

COMMENTS
Q: W hat are th e cases w hich are decided by th e Suprem e
C ourt e n b a n c?
A: The following cases hall be decided by the Supreme
Court en banc, to wit:
(a) All cases involving the constitutionality of a treaty,
international or executive agreement, or law; and
(b) All other cases which under the Rules of Court are
required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations.
Q: W hat is th e procedural basis of th e power of th e
S uprem e C ourt to review decision o f th e decisions of th e
lower c o u rts?
A: Sec. 1, Rule 45 of the 1997 Rules on Civil Procedure
is the procedural basis of the Supreme Court to review the
decision of the lower courts.
 CHAPTER III 205
GENERAL PRINCIPLES IN REMEDIAL LAW

P rocedural Baals:

Sec. 1, Rule 45 o f th e 1997 Rules of Civil Procedure,

provides for the appellate jurisdiction of the Supreme Court
over decisions, final orders and resolutions of the lower
courts. It states that:
“S ec. 1. Filing o f th e Petition w ith Suprem e
Court. — A party desiring to appeal from a judgm ent,
final order o f resolution o f th e Court o f Appeals, th e
Sandiganbayan, th e Regional Trial Court or other
courts authorised by law, m ay file w ith th e Suprem e
Court a verified p etition for review on certiorari. The
p etition shall only raise question o f law.”
COMMENTS
Q: W hat are th e cases falling u n d er th e appellate
ju risd ictio n o f th e Suprem e C ourt?
A: Supreme Court has appellate jurisdiction over judgment,
final orders and resolutions of the following courts:
1) The Court of Appeals under Rule 45 (CA-SC):
2) Sandiganbayan under P.D. 1606 as amended by
R.A. 7975, R.A. 8249, and R.A. 10660 in relation to Rule 45
(SB-SC)
3) Court of Tax Appeals en banc pursuant to Sec. 11 of
R.A. 9282 in relation to Rule 45 (CTA-SC);
4) Regional Trial Court under Rule 45 on the ground of
purely questions of law (RTC-SC);
5) Court of Appeals, Sandiganbayan, and Regional
Trial Court in petition for writ of Amparo (Sec. 19 o f A. M. No.
07- 9-12-SC, effective October 24, 2007);
6) Court of Appeals, Sandiganbayan, and Regional
Trial Court in a petition for habeas data (Sec. 19 of A.M. No.
08- 1-16-SC, effective February 2, 2008);
7) Court of Appeals in case of petition for writ of
Kalikasan (A.M. No. 09-6-8-SC, April 13, 2010);
206 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8) Court of Appeals and Regional Trial Court in a

petition for continuing mandamus. [A.M. No. 09-6-8-SC, April
13, 2010)
Q: W hat is th e ground w hich can be raised w ith th e
8uprem e C ourt via Rule 4 5 ?
A: As a general, rule the decision, final order and resolution
of the above-mentioned courts are based on pure questions
of law under Rule 45 of the 1997 Rules of Civil Procedure by
way of Petition for Review on Certiorari.
Q: W hat is th e difference betw een q u estio n of law and
q u estio n o f facts?
A: A q u estio n o f law exists when there is doubt or
controversy as to what law is on a certain state of facts. On
the other hand, a q u estio n o f fact exists when the doubt
or controversy arises as to the truth or falsity of the alleged
facts. The resolution of a question of fact necessarily involves
a calibration of the evidence, the credibility of the witnesses,
the existence and the relevance of surrounding circumstances,
and the probability of specific situations. (Arturo C. Cabaron
vs. People o f the Philippines, G.R. No. 156981, October 5, 2009)

| b) C ourt o f Appeals^

Q: W hat is th e su b stan tiv e basis w hich confers appellate

ju risd ic tio n to th e C ourt o f A ppeals?
A: Sec. 9(3), B.P. 129, as amended confers power to the
Court of Appeals to review the decision of the lower courts or
tribunals.

|s ^ s t w ^ ^ B M i 8 |J

Sec. 9(3) o f B.P. 129, as am ended provides for the

exclusive and appellate power of the Court of Appeals to
review judgment, final orders, or even awards of the following
courts and quasi-judicial bodies. It states that:
“Sec. 9 . Jurisdiction. — The Court o f Appeals
shall exercise.
 CHAPTER III 207
GENERAL PRINCIPLES IN REMEDIAL LAW

3) E xclusive appellate ju risd iction over all final

judgm en ts, d ecision s, resolution s, orders or awards
o f Regional Trial Courts and quasi-judicial agen cies,
in stru m en talities, boards or com m ission s, including
th e S ecu rities and Exchange C om m ission, th e Social
Security C om m issions, th e E m ployees C om pensation
C om m ission and th e Civil Service Com m ission, excep t
th o se falling w ithin th e appellate ju risdiction o f th e
Suprem e Court in accordance w ith th e C onstitution,
th e Labor Code o f th e Philippines under Presidential
Decree No. 4 4 2 , as am ended, th e provisions o f th is
Act, and o f subparagraph (1) o f th e third paragraph
and subparagraph 4 o f th e fourth paragraph o f Section
17 o f th e Judiciary Act o f 1948.
The Court o f Appeals shall have th e power to
try ca ses and conduct hearings, receive evid en ce and
perform any and all a c ts n ecessary to resolve factual
issu e s raised in ca ses falling w ithin its original and
appellate jurisdiction, including th e power to grant
and conduct new trials or further proceedings.
Trials or hearings in th e Court o f Appeals m ust be
con tin u ou s and m ust be com pleted w ithin three (3)
m onths, u n less extended by th e C hief J u stic e .”

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive
app ellate ju risd ic tio n o f th e C ourt o f Appeals?
A: The Court of Appeals shall exercise exclusive appellate
jurisdiction over:
1) Decision and final orders of the Regional Trial Court
in the exercise of its original jurisdiction (Sec. 2[a], Rule 41 of
the 1997 Rules o f Civil Procedure);
2) Decision and final orders of the Regional Trial Court
in the exercise of its appellate jurisdiction (Sec. 1, Rule 42);
3) Decision and final orders of the Metropolitan Trial
Courts, Municipal Trial/Municipal Circuit Trial Courts in
delegated jurisdiction over land registration and cadastral
cases (Sec. 34, B.P. 129);
4) Decision of the Shari’ah District Courts in the
absence of the station of the Shari’ah Appellate Courts;
208 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

5) All decisions and final orders rendered by the

Regional Trial Court in case of violation of Intellectual Property
Code shall be appealable to the Court of Appeals through a
petition for review under Rule 43 of the Rules of Court. (Sec.
2, Rule 9 of the Rules o f Procedure for Intellectual Property
Rights Cases, A.M. No. 1U-3-1U-SC, October is , 2011)
6) Awards, judgment, final orders or resolution of
quasi-judicial bodies (Sec. 1, Rule 43) such as:
a) Civil Service Commission;
b) Securities and Exchange Commission;
c) Office of the President;
d) Land Registration Authority;
e) Social Security Commission;
f) Civil Aeronautics Board;
g) Bureau of Patents Trademarks and Technology
Transfer;
h) National Electrification Administration;
i) Energy Regulatory Board;
j) National Telecommunications Commission;
k) Department of Agrarian Reform;
l) Government Service Insurance System;
m) Employees Compensation Commission;
n) Agricultural Inventions Board;
o) Insurance Commission;
p) Philippine Atomic Energy Commission;
q) Board of Investments;
r) Construction Industry Arbitration Commission;
s) Voluntary Arbitration;
t) Decision of the Office of the Ombudsman in
administrative cases. (Office of the Ombudsman vs.
Romeo A. Liggayu, G.R. No. 174297, June 20, 2012;
Office o f the Ombudsman vs. Heirs of Margarita Vda. De
Ventura, G.R. No. 151800, November 5, 2009)
 CHAPTER III 209
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat are th e powers gran ted to th e Court of Appeals

In exercising its appellate ju risd ictio n ?
A: The Court of Appeals shall have the power to:
1) Try cases and conduct hearings;
2) Receive evidence; and
3) Perform any and all acts necessary to resolve factual
issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new
trials or further proceedings.
Q: W hat is th e n atu re o f trial and hearing in th e Court
of Appeals?
A: Trials or hearings in the Court of Appeals must be
continuous and must be completed within three (3) months,
unless extended by the Chief Justice.”

|j^c)^8andlganbayan

Q: W hat is th e su b stan tiv e basis w hich confers appellate

ju risd ictio n to th e Sandiganbayan?
A: Sec. 4 of R.A. 10660 confers power to the Sandiganbayan
to review the decision of the lower courts.

Substantive Basis:

Sec. 4 o f R.A. 10660 otherwise known as the An Act

Strengthening Further the Functional And Structural Or­
ganization of The Sandiganbayan, Further Amending Presi­
dential Decree No. 1606, As Amended, And Appropriating
Funds Therefor enumerate the cases falling under the exclu­
sive appellate jurisdiction of Sandiganbayan in civil cases. It
states that:
"The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgm ents,
resolutions or orders o f regional trial courts w hether
in th e exercise o f their own original jurisdiction or o f
their appellate jurisdiction as herein provided.”
210 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat are th e cases falling u n d er th e exclusive
appellate ju risd ic tio n o f th e S andiganbayan?
A: The Sandiganbayan shall exercise exclusive appellate
jurisdiction over:
1) Final judgments, resolutions or orders of regional
trial courts in the exercise of their own original jurisdiction;
or
2) Final judgments, resolutions or orders of regional
trial courts of their appellate jurisdiction as herein provided.

Case Law:

The Sandiganbayan shall exercise exclusive appellate

jurisdiction over final judgment, resolutions, or orders of
Regional Trial Courts whether in the exercise of their own
original jurisdiction or their appellate jurisdiction. (Filomena
L. Villanueva vs. People, G.R. No. 188630, February 23, 2011)

d) C ourt o f Tax Appeals

Q: W hat is th e su b stan tiv e basis w hich confers exclusive

appellate ju risd ic tio n to th e C ourt o f Tax Appeals?
A: Sec. 7 of R.A. 9282 confers power to the Court of Tax
Appeals Sandiganbayan to review the decision of the lower
courts.

S ub stan tiv e Basis:

Sec. 7 o f Republic A ct 9282, otherwise known as An

Act Expanding The Jurisdiction of the Court of Tax Appeals
(CTA), Elevating Its Rank to the Level of a Collegiate Court
With Special Jurisdiction and Enlarging Its Membership,
Amending for the Purpose Certain Sections or Republic
Act No. 1125, As Amended, Otherwise Known As The Law
Creating the Court of Tax Appeals, and For Other Purposes.
Enumerate the cases falling under the exclusive appellate
jurisdiction of the Court of Tax Appeals. It states that:
 CHAPTER III 211
GENERAL PRINCIPLES IN REMEDIAL LAW

“Sec. 7. The CTA shall exercise:

A. E xclusive appellate ju risd iction to review
by appeal, as herein provided:
1. D ecision o f th e Com m issioner o f
Internal R evenue in ca ses involving disputed
a ssessm en ts, refunds o f internal revenue taxes,
fees or other charges, pen alties in relation
th ereto, or other m atters arising under the
National Internal R evenue or other laws
adm inistered by th e Bureau o f Internal Revenue;
2. Inaction by th e Com m issioner o f
Internal R evenue in ca ses involving disputed
a ssessm en ts, refunds o f internal revenue taxes,
fees or other charges, pen alties in relation
th ereto, or other laws adm inistered by th e
Bureau o f Internal R evenue, where th e National
Internal R evenue Code provides sp ecific period
o f action , in w hich case th e inaction shall be
deem ed a denial;
3. D ecisions, order or resolution s o f th e
Regional Trial Courts in local tax c a ses originally
decided or resolved by them in th e exercise o f
their original or appellate jurisdiction;
4. D ecision o f th e Com m issioner o f
C ustom s in c a ses involving liability o f custom
du ties, fees or other m oney charges, seizure,
d eten tion or release o f property affected, fines,
forfeitures or other pen alties in relation th ereto,
or other m atters arising under th e C ustom s Law
or other laws adm inistered by th e Bureau o f
Custom s;
5. D ecision o f th e Central Board o f As­
sessm en t appeals in th e exercise o f its appellate
jurisdiction over c a ses involving th e assessm en t
and taxation o f real property originally decided
by th e provincial or c ity board o f a ssessm en t ap­
peals;
6. D ecision s o f th e Secretary o f Finance
on cu stom s c a ses elevated to him autom atically
for review from d ecision s o f th e C om m issioner o f
C ustom s w hich are adverse to th e G overnm ent
under Section 2 3 1 5 o f th e Tariff and Custom s
Code;
7. D ecisions o f th e Secretary o f Trade
and Industry, In the case o f non-agricultural
212 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

product, com m odity or article, and th e Secretary

o f Agriculture in th e case o f agricultural product,
com m odity or article, involving dum ping and
countervailing d u ties under S ection 301 and
3 0 2 , resp ectively, o f th e Tariff and Custom s
Code, and safeguard m easures under Republic
Act No. 8 8 0 0 . where either party m ay appeal th e
d ecision to im pose or n ot to im pose said d u ties.”

COMMENTS:
Q: W hat are th e cases falling u n d er th e exclusive and
appellate ju risd ic tio n o f th e C ourt o f Tax A ppeals?
A: The Court of Tax Appeals shall exercise exclusive
appellate jurisdiction over the following:
1. Decision of the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds of internal
revenue taxes, fees or other charges, penalties in relation
thereto, or other matters arising under the National Internal
Revenue or other laws administered by the Bureau of Internal
Revenue;
2. Inaction by the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds of internal
revenue taxes, fees or other charges, penalties in relation
thereto, or other laws administered by the Bureau of Internal
Revenue, where the National Internal Revenue Code provides
specific period of action, in which case the inaction shall be
deemed a denial;
3. Decisions, order or resolutions of the Regional Trial
Courts in local tax cases originally decided or resolved by
them in the exercise of their original or appellate jurisdiction;
4. Decision of the Commissioner of Customs in cases
involving liability of custom duties, fees or other money
charges, seizure, detention or release of property affected,
fines, forfeitures or other penalties in relation thereto, or
other matters arising under the Customs Law or other laws
administered by the Bureau of Customs;
5. Decision of the Central Board of Assessment appeals
in the exercise of its appellate jurisdiction over cases involving
 CHAPTER III 213
GENERAL PRINCIPLES IN REMEDIAL LAW

the assessment and taxation of real property originally decided

by the provincial or city board of assessment appeals;
6. Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review from decisions
of the Commissioner of Customs which are adverse to the
Government under Section 2315 of the Tariff and Customs
Code;
7. Decisions of the Secretary of Trade and Industry, In
the case of non-agricultural product, commodity or article, and
the Secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping and countervailing
duties under Section 301 and 302, respectively, of the Tariff
and Customs Code, and safeguard measures under Republic
Act No. 8800, where either party may appeal the decision to
impose or not to impose said duties.
■ ■' ' . . ■ . . . . ;
e) Regional Trial C ourt (Bar E xam inations 2017
an d 2014)___________ _______________________

Q: W hat is th e su b stan tiv e basis w hich confers appellate

ju risd ic tio n to th e Regional Trial C ourt?
A: Sec. 2 of B.P. 129, as amended confers appellate
jurisdiction to the Regional Trial to review the decision of the
first (1st) level courts.

S u b stan tiv e Basis:

Sec. 22, B.P. 129, as am ended provides for the appellate

jurisdiction to the Regional Trial Courts. It states that:
MSec. 22. A pp ella te Jurisdiction. - Regional Trial
Courts shall exercise appellate jurisdiction over all
ca ses decided by M etropolitan Trial Courts, M unicipal
Trial Courts, and M unicipal Circuit Trial Courts in
th eir resp ective territorial ju risdictions. Such cases
shall be decided on th e basis o f th e entire record o f
th e proceedings had in th e court o f origin and such
m em oranda a n d /or briefs as m ay be subm itted by th e
parties or required by th e Regional Trial Courts. The
214 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

d ecision o f th e Regional Trial Courts in su ch c a ses

shall be appealable by p etition for review to th e Court
o f Appeals w hich m ay give it due course only when
th e p etitio n show s p rim a fa c ie th a t th e lower court
has com m itted an error o f fact or law th at will warrant
a reversal or m odification o f th e d ecision or judgm ent
sought to be review ed.”

|^ ^ ^ ^ r t ^ h D i r t ^ t C o u r t |J

Q: W hat is th e su b stan tiv e basis w hich confers appellate

ju risd ic tio n to th e S h a r i’a h D istrict C ourt?
A: Article 144 of P.D. 1083, otherwise known as the Code
of Muslim Personal Laws of The Philippines confers appellate
jurisdiction to the Shari’ah District Court.

j^B ubstantiveB asis;

Article 144 of P.D. 1083, otherwise known as the Code

of Muslim Personal Laws of The Philippines confers appellate
jurisdiction to the Shari’ah District Court. It states that:
"Art. 144. A p pellate Jurisdiction.
(1) Shari’a D istrict Courts shall have appellate
jurisdiction over all c a ses tried in th e Shari’a Circuit
Courts w ithin their territorial jurisdiction.
(2) The Shari’a D istrict Court shall decide
every case appealed to it on th e basis o f th e evid en ce
and records tran sm itted as w ell as su ch m em oranda,
briefs or oral argum ents as th e parties m ay subm it.”

O. C o n cu rren t Ju risd ic tio n

Q: W hat is co n cu rre n t ju risd ic tio n ?

A: It is the power conferred upon different courts, whether
of the same or different ranks, to take cognizance at the
same stage of the same case in the same or different judicial
territories.
 CHAPTER III 215
GENERAL PRINCIPLES IN REMEDIAL LAW

1) S uprem e C ourt

Q: W hat are th e cases falling u n d er th e c o n cu rren t

ju risd ic tio n o f th e S uprem e C ourt?
A: Supreme Court shall exercise concurrent jurisdiction
over the following:
1) With the Regional Trial Court over actions involving
ambassadors, other public ministers and consuls;
2) With the Court of Appeals, Sandiganbayan, and
Regional Trial Courts over petitions for certiorari, prohibition
mandamus, habeas corpus, amparo and data.
3) With the Court of Appeals over petition for writ of
kalikasan;
4) With the Court of Appeals and Regional Trial Court
over petitions for writ of continuing mandamus.

I Law ^J
Although the Supreme Court, the Court of Appeals
and the Regional Trial Courts have concurrent jurisdiction
to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence
does not give the petitioner unrestricted freedom of choice
of court forum. The rationale for this rule is two-fold: (a) it
would be an imposition upon the precious time of this Court;
and (b) it would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of cases, which in
some instances had to be remanded or referred to the lower
court as the proper forum under the rules of procedure, or
as better equipped to resolve the issues because this Court is
not a trier of facts. (CREBA vs. Sec. o f Agrarian Reform, G.R.
No. 183409, June 18, 2010)
Q: W hat is th e ratio n ale for th e principle o f h ierarch y of
c o u rts?
A: This concurrence of jurisdiction is not, however to be
taken as according to parties seeking any of the writs an
216 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

absolute, unrestrained freedom of choice of the court to which

application therefor will be directed.

Law: |j

The rationale for the principle of hierarchy of courts

was discussed in Chamber of Real Estate and Builders
Associations, Inc. v. Secretary of Agrarian Reform. In the said
case, the Court, citing the Heirs of Bertuldo Hinog v. Hon.
Melicor, explained that:
x x x In Heirs of Bertuldo Hinog v. Melicor citing
People v. Cuaresma, this Court made the following
pronouncements:
This Court’s original jurisdiction to issue writs of certiorari
is not exclusive. It is shared by this Court with Regional
Courts and with the Court of Appeals. This concurrence
of jurisdiction is not, however to be taken as according to
parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals,
and also serves as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming
regard for that judicial hierarchy most certainly indicates
that petitions for the issuance of extraordinary writs against
first level (“inferior”) courts should be filed with the Regional
Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court’s original
jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefor, clearly and
specifically set out in the petition. This is an established policy.
It is a policy necessary to prevent inordinate demands upon
the Court’s time and attention which are better devoted to
those matters within its exclusive jurisdiction and to prevent
further over-crowding of the Court’s docket. (Dr. Fe Lasam vs.
Philippine National Bank and Hon. Presiding Judge of Regional
Trial Court, Branch 66, San Fernando City, La Union, G.R. No.
207433, December 5, 2018)
 CHAPTER III 217
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat are th e lim itatio n s on th e exercise of c o n cu rren t/

con flu en t/co o rd in ate ju risd ictio n ? Exception.
A: Party must observe the judicial hierarchy, and a direct
invocation of the original jurisdiction to issue those writs
should be allowed only when there are special and important
reasons therefore; clearly and specifically set out in the
petition.

Case Law:

(1) Although the Court, Court of Appeals and the

Regional Trial Courts have concurrent jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such concurrence does not give
the petitioner unrestricted freedom of choice of court forum;
A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs
against first level (“inferior”) courts should be filed with the
RTC and those against the latter with the Court of Appeals;
A direct invocation of the original jurisdiction to issue those
writs should be allowed only when there are special and
important reasons therefore; clearly and specifically set out in
the petition. (Constancio F. Mendoza and Sangguniang Brgy.
of Balatasan, Bulalacao, Oriental Mindoro, G.R. No. 187256,
February 23, 2011)
Q: W hat are th e exceptions to th e D octrine of H ierarchy
of C ourt?
A: Exceptional and compelling circumstances, such as
cases of national interest and with serious implications must
be advanced justify the availment of the extraordinary remedy
of writ of certiorari, prohibition, or mandamus calling for the
exercise of its primary jurisdiction.

Case Law:
In Vivas v. The Monetary Board o f the Bangko Sentral ng
Pilipinas, the Court had occasion to explain:
218 CIVIL PROCEDURE: A GUIDE FOR THEBENCH
AND THE BAR

Even in the absence of such provision, the petition

is also dismissible because it simply ignored the doctrine
of hierarchy of courts. True, the Court, the CA and
the RTC have original concurrent jurisdiction to issue
writs of certiorari, prohibition and mandamus. The
concurrence of jurisdiction, however, does not grant the
party seeking any of the extraordinary writs the absolute
freedom to file a petition in any court of his choice. The
petitioner has not advanced any special or important
reason which would allow a direct resort to this Court.
Under the Rules of Court, a party may directly appeal
to this Court only on pure questions of law. In the case
at bench, there are certainly factual issues as Vivas is
questioning the findings of the investigating team. Strict
observance of the policy of judicial hierarchy demands
that where the issuance of the extraordinary writs is also
within the competence of the CA or the RTC, the special
action for the obtainment of such writ m ust be presented
to either court. As a rule, the Court will not entertain
direct resort to it unless the redress desired cannot
be obtained in the appropriate lower courts; or where
exceptional and compelling circumstances, such as
cases of national interest and with serious implications,
justify the availment of the extraordinary remedy of
writ of certiorari, prohibition, or mandamus calling for
the exercise of its primary jurisdiction. The judicial
policy must be observed to prevent an imposition on the
precious time and attention of the Court.
However, as in the foregoing pronouncement, petitioners
here indirectly elevated the instant case before the Court
failing to advance any compelling reason for the Court to allow
the same. In fact, they even raised issues concerning public
respondent’s factual findings, contrary to the rule that parties
who appeal directly to this Court m ust only raise questions of
law. It is clear, therefore, that the Court has ample reason to
dismiss petitioners’recourse. (P/SInsp. Samson B. Belmonte,
et al. vs. Office o f the Deputy Ombudsman for the Military and
Other Law Enforcement Office, Office o f the Ombudsman, G.R.
No. 197665, January 13, 2016, J. Peralta)
 CHAPTER III 219
GENERAL PRINCIPLES IN REMEDIAL LAW

Q: W hat is th e two-fold ratio n a le for th e re stric tio n on

ju d icial h ierarch y ?
A: The rationale for this rule is two-fold: (a) it would be an
imposition upon the precious time of this Court; and (b) it
would cause an inevitable and resultant delay, intended or
otherwise, in the adjudication of cases.

_ jC a se _ L a s n jl

The rationale for this rule is two-fold: (a) it would be

an imposition upon the precious time of this Court; and (b)
it would cause an inevitable and resultant delay, intended
or otherwise, in the adjudication of cases, which in some
instances had to be remanded or referred to the lower court
as the proper forum under the rules of procedure, or as better
equipped to resolve the issue because this Court is not a
trier of facts. (Dr. Fe Lasam vs. Philippine National Bank and
Hon. Presiding Judge Of Regional Trial Court, Branch 66, San
Fernando City, La Union, G.R. No. 207433, December 5, 2018)

Q: How to com ply w ith th e ju d icial h ierarch y of c o u rts?

A: The petitions for the issuance of extraordinary writs
against the first level (“inferior”) courts should be filed with
the Regional Tried Court, and those against the latter, with
the Court of Appeals.

The petitions for the issuance of extraordinary writs

against the first level (“inferior”) courts should be filed with
the Regional Trial Court, and those against the latter, with
the Court of Appeals. A direct invocation of the Supreme
Court’s original jurisdiction to issue writs should be allowed
only when there is a special and important reasons therefor,
clearly and specifically set out in the petition. (Constancio F.
Mendoza and Sangguniang Barangay o f Batasan, Bulalacao
Oriental Mindoro vs. Mayor Enrillo Villas, et al., G.R. No.
187256, February 23, 2011)
220 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Does ju d icial h ierarch y o f co u rts d eterm in e venue of

appeals?
A: Yes, the hierarchy is determinative of the venue of
appeals, and also serves as a general determinant of the
appropriate forum for petitions for the extraordinary writs.

This Court’s original jurisdiction to issue writs of certiorari

is not exclusive. It is shared by this Court with Regional Trial
Courts and with the Court of Appeals. This concurrence
of jurisdiction is not, however, to be taken as according to
parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative o f the venue of appeals, and also
serves as a general determinant of the appropriate forum
for petitions for the extraordinary writs. A becoming regard
for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against
first level (“inferior”) courts should be filed with the Regional
Trial Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court’s original
jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established
policy. It is a policy necessary to prevent inordinate demands
upon the Court’s time and attention which are better
devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court’s docket.
(United Claimants Association o f NEA [UNICAN] vs. National
Electrification Administration [NEA], G.R. No. 187107, January
31, 2012)
 CHAPTER III 221
GENERAL PRINCIPLES IN REMEDIAL LAW

IV. BASIC CONCEPT ON VENUE

Q: W hat is v enue?
A: Venue — is defined as the place where the case is to be
instituted, heard and tried.
Q: W hat is th e n atu re o f venue in civil cases?
A: Venue is procedural in nature, waivable for failure
to make a timely objection in the answer as an affirmative
defense, and can be the subject of stipulation of the parties.
Q: W hat is th e rem edy of th e d efendant in case of
im proper ven u e?
A: Improper venue can be raised in the answer as an
affirmative defense under Sec. 12, Rule 8.*1

P rocedural Basis:

Sec. 12, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provide for
the rules on affirmative defenses that may be raised in the
answer. It states that:
MSec. 12. A ffirm ative 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. T hat the court has no jurisdiction over the
person of the defending party;
2. That venue is improperly laid;”
222 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: What are th e d istin ctio n s betw een ju risd ictio n and

venue?

Jurisdiction
a) Jurisdiction is the a u th o r­
ity of the court to hear and
determ ine a case;
b) It is a m atter of substantive
law;
c) It establishes a relation
between the court and the
subject m atter of the ac­
tion;
d) It is fixed by law and can­
not be conferred by the
agreem ent of the parties;
e) It cannot be waived since it
is conferred by law;
f) There can be motu pro-
pio dism issal of the action
based on lack of jurisdic­
tion over the subject m at­
ter of the case. (Sec. 1, Rule
9)
Venue
a) Venue is the place where
the case is to be heard or
tried;
b) It is a m atter of procedural
law;
c) It establishes the relation
between plaintiff and de­
fendant, or petitioner and
respondent;
d) It may be conferred by the
act or agreem ent of the
parties; and
e) It can be waived for failure
to raise the objection in the
answ er as an affirmative
defense. (Sec. 1, Rule 9)
f) As a rule, there can be
no motu propio dism iss­
al of the action based on
improper venue, except
under the Rules on Sum ­
mary Procedure (Sec. 4),
and Rules on Small Claims
Case. (Sec. 11)

Q: D ifferentiate venue in Civil Cases (Rule 4) vs. Crim inal

Cases (Sec. 15, Rule 110)?

Venue in Civil cases Venue in Criminal cases

a) In civil cases, venue is only a) Venue in criminal cases
procedural and for the is jurisdictional since it
purpose of convenience of is conferred by the penal
the parties. statute.
 CHAPTER III
GENERAL PRINCIPLES IN REMEDIAL LAW
b) In civil cases venue is
conferred by Rule 4 and
m ay be agreed upon by the
parties.
c) Im proper venue in civil
cases can be raised as an
affirmative defense in the
answ er u n d e r Sec. 12, Rule
8.
d) In case of denial of the
affirmative defenses in
the answ er, it shall not be
th e subject of a m otion for
reconsideration or petition
for certiorari, prohibition
or mandamus, b u t m ay
be am ong the m atters to
be raised on appeal after
a judgm ent on th e m erits
(Sec. 12, Rule 8 of the 2019
Amendments to the 1997
Rules on Civil Procedure
(A.M. No. 19-10-20)
e) In civil cases, issue of venue
can be waived for failure to
object and raise it a s an
affirmative defense in the
answer. (Sec. 1, Rule 9)
223
b) Venue in crim inal cases is
conferred by the provision
of law.
c) Im proper venue in crim inal
cases is a ground for
a m otion to q u a sh the
com plaint or inform ation
on the ground of lack of
jurisdiction over th e offense
charged.
d) In case of denial of the
motion to q u a sh on
the ground of lack of
jurisdiction over the
offense charged the remedy
is to proceed with the
arraignm ent.
e) Venue in crim inal cases
cannot be waived since it
is jurisdictional since and
conferred by the penal
statu te.
 CHAPTER IV
STAGES O F CIVIL PROCEEDINGS AND REM EDIES

I. STAGES OF CIVIL PROCEEDINGS

I. Flow C hart in O rdinary Civil Action

□
| Adverse Claim 11Arbitration/ADR ~j | Referral to tha B m n p y *| [ DNA Tw tlnf j

------- - y -------
Filing of Complaint/Statement of Claims/Petition I

Raffle of the Case

benance and Service of Sammons

T
|| a— | ffatom ioa of Tlin#||Bfll of Wrtlo»l«ri|| Motion PIm Um | I by W»ia^g]

Piling of the Answer/Verified Response

[lodgment on the PUedlngs | | Summary Jndgment [Amendment with Leave 11 SoppUmental Answer

2
Pre-trial Conference

=s _
Presentation of Plaintifrs Evidence

4
Demurrer To Evidence
~
2,
Defendant's Evidence in-chief/Third party Complaint

IT
Rebuttal Evidence

— r —
Sur-rebuttal Evidence

JL
Piling of Memorandam |

| Intervention 1

¥
| Judgment/Decision j

224
 CHAPTER IV 225
STAGES OF CIVIL PROCEEDINGS AND REMEDIES
226 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

III. Flow C hart in Sm all Claim s Cases.

 CHAPTER IV 227
STAGES OF CIVIL PROCEEDINGS AND REMEDIES

II. SUMMARY OF REMEDIES PER STAGE

IN CIVIL PROCEEDINGS

I 1. R em edies or Proceedings before th e C om m encem ent

|^ ^ o f^ C iv il^ A c tio n ^ ^ _________________________

Q: W hat are th e rem edies or proceedings available before

th e filing o f a co m p lain t in co u rt?
A: The following proceedings or remedies may take place
or availed of before the filing of a complaint in the court as
prescribed by law or the rules, to wit:
a) Referral of the case to the barangay for conciliation
and mediation (Republic Act No. 7160) and issuance of
Barangay Protection Order (Republic Act No. 9262);
b) Affidavit of Adverse Claim;
c) Voluntary Arbitration or Alternative Dispute
Resolution (ADR);
d) DNA Evidence/Testing.*1

R em edies Upon th e C om m encem ent of th e A ction

3

Q: W hat are th e rem edies upon th e co m m en cem en t of

th e a ctio n ?
A: The remedies upon the commencement of the action
under rules are, as follows, to wit:
1) Motion to be declared as indigent party (Sec. 21,
Rule 3)
2) Intervention (Rule 19);
3) Attachment (Rule 57);
4) Injunction (Rule 58)
5) Appointment of a receiver (Rule 59);
6) Replevin (Rule 60);
228 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

7) Support Pendente Lite (Rule 61).

8) Motu proprio dismissal of the case under Sec. 4 of
the Rules on Summary Proceedings; and
9) Motu proprio dismissed of the case Sec. 11 of the
2016 Revised Rules on Small Cledms Cases.

3. R em edies A fter Service o f S um m ons b u t Before

[ filing o f R esponsive Pleading:

Q: W hat are th e available rem edies to th e p a rtie s in a

civil actio n after th e service o f sum m ons b u t before th e
filing o f a responsive pleading?
A: After the service of summons under Rule 14, parties to
a civil action may avail of the following remedies under the
pertinent provisions of the Rules of Court, as follow:
1) Motion to join or add parties (Sec. 11, Rule 3)
2) Motion to Declare Defendant in Default, motion to
lift order of default, ex-parte motion to present evidence, and
judgment by default, motion to set aside judgment by default
(Rule 9);
3) Amendment of the pleadings as a matter of right
(Sec. 2, Rule 10);
4) Motion for extension of time to file pleading (Sec. 13,
Rule 11);
5) Motion for bill of particulars (Rule 12);
6) Notice of Lis pendens (Sec. 19, Rule 13);
7) Motion to dismiss (Sec. 12, Rule 15);
8) Dismissal by the plaintiff (Sec. 1, Rule 17);
9) Intervention (Sec. 1, Rule 19);
10) Modes of Discoveries (Rule 23-27)
11) Summary judgment (Rule 35).

Q: W hat are th e possible rem edies after th e service of

sum m ons?
 CHAPTER IV 229
STAGES OF CIVIL PROCEEDINGS AND REMEDIES

A: The remedies available to the defendant after service of

summons, are as follows, to wit::
1) Answer with counter-claim or cross-claim (Rule 11);
2) Motion for Leave to Intervene with Complaint-in­
intervention (Sec. 1, Rule 19);
3) Modes of Discoveries (Rule 23-28);
4) Summary Judgment by the defendant (Sec. 2, Rule
35);
5) Answer to the complaint-in-intervention (Rule 19);
6) Notice of Lis Pendens (Sec. 19, Rule 13);
7) Request for admission (Sec. 1, Rule 26)

5. R em edies A fter Service o f th e Answer:

Q: W hat are th e available rem edies to th e defendant

after th e service of th e answ er?
A: The available remedies after the filing of an answer are,
namely:
1) Reply (Sec. 10, Rule 6);
2) Third Party/Fourth Party Complaint (Sec. 11, Rule
6)
3) Amendment of the pleading with leave of court (Sec.
3, Rule 10);
4) Motion for Leave to file Supplemental pleading (Rule
10 ) ;
5) Motion to dismiss complaint by the plaintiff (Sec. 2,
Rule 17);
6) Judgment on the pleadings (Rule 34);
7) Summary judgment (Sec. 1, Rule 35);
8) DNA Testing (Sec. 4 of the DNA Emdence Rule, A.M.
No. 06-11-5-SC, October 15, 2007)
9) Modes of Discovery (Rules 23-28)
230 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6. R em edies A fter Service o f th e Reply or T hird-party I

[ _ _ C o m g lain t: |

Q: W hat are th e available rem edies to th e p artie s in a

civil actio n after th e service o f reply or th ird (fourth,
etc.(-party co m plain t?
A: The available remedies after the filing of an answer are,
namely;
1) Rejoinder (Sec. 10, Rule 6)\
2) Answer to third (fourth, etc.) party-complaint (Rule
nr,
3) Motion for Judgment on the Pleadings (Rule 34)
4) Motion for Summary Judgment (Rule 35)

R em edies D uring Pre-trial: *1

Q: W hat are th e available rem edies during pre-trial

conference?
A: The available remedies during pre-trial conference, are
as follows, to wit:
1) Motion for the dismissal of the action for failure
of the plaintiff to appear during the scheduled pre-trial
conference or to submit pre-trial conference (Sec. 5, Rule 18);
2) Motion to present evidence ex-parte by the plaintiff
for failure of the defendant to appear during the scheduled
pre-trial conference or file his pre-trial brief (Sec. 5, Rule 18);
3) Amendment or correction of Pre-trial Order (Sec. 7,
Rule 19);
4) Modes of Discovery (Rules 23-29);
5) Motion for Judgment on the Pleadings (Rule 34);
6) Motion for Summary Judgment (Rule 35).
 CHAPTER IV 231
STAGES OF CIVIL PROCEEDINGS AND REMEDIES

8. R em edies Before Trial:

Q: W hat are th e rem edies before tria l?

A: The available remedies before trial are as follows, to wit:
1) Motion to dismiss the action or claim for failure of
the plaintiff to appear during the presentation of the plaintiffs
evidence-in-chief (Sec. 3, Rule 17);
2) Motion to dismiss the action or claim for failure to
prosecute for an unreasonable length of time (Sec. 3, Rule 17);
3) Notice of dismissal of counterclaim, cross-claim or
third-party complaint (Sec. 4, Rule 17).
4) Taking of Deposition pending action. (Rule 23)

9 . R em edies D uring T rial (Bar E xam ination 2013 1

Q: W hat are th e available rem edies to th e p artie s in a

civil a ctio n during tria l?
A: The remedies available to the parties during trial are as
follows, to wit:
1) Motion for Substitution of Heirs (Sec. 16, Rule 3);
2) Dismissal of the action for failure of the plaintiff to
appear during the presentation of the plaintiffs evidence-in­
chief (Sec. 3, Rule 17);
3) Request for issuance of Subpoena which provides
for the process of subpoena available during trial to require
the attendance of a witness or to bring documents or books
etc. (Rule 21);
4) Motion for Consolidation or Severance of Cases
(Rule 31);
5) Motion to conduct Trial by Commissioner (Sec. 1,
Rule 32);
6) Motion for Demurrer to Evidence (Sec. 1, Rule 33).
232 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

10. R em edies Before F in ality o f Ju d g m e n t/F in a l

Order:

Q: W hat are th e available rem edies to th e p a rtie s in a

civil actio n before finality o f ju d g m en t or final order?
A: The remedies available to the parties before finality of
judgment or final order are as follows, to wit:
1) Motion for New Trial (Rules 37 and 53);
2) Motion for Reconsideration (Rules 37 and 52); and
3) Appeals (Rules 40, 41, 42, 43, and 45).
4) Motion to dismiss appeal (Rule 50);
5) Motion to Re-open the Case (Etjuity).
—
11. R em edies A fter F in ality o f Ju d g m e n t

Q: W hat are th e available rem edies to th e p a rtie s in a

civil actio n a fte r finality o f ju d g m en t or final order?
A: The remedies available to the parties after finality of
judgment or final order are as follows, to wit:
1) Petition for relief from judgment, orders or other
proceedings (Rule 38);
2) Petition for annulment of judgment (Rule 47);
3) Petition for certiorari (Rule 65);
4) Collateral attack; and
5) Motion for issuance of writ of execution (Sec. 6, Rule
39).

12. R em edies D uring Execution:

Q: W hat are th e available rem edies to th e p artie s in a

civil actio n a fte r fin ality o f ju d g m en t or final order?
A: The remedies available to the parties during execution of
the judgment or final order are as follows, to wit:
 CHAPTER IV 233
STAGES OF CIVIL PROCEEDINGS AND REMEDIES

1) Motion for issuance of writ of execution (Sec. 6, Rule

39)-,
2) Petition for mandamus in case of refusal to execute
as a matter of right (Sec. 3, Rule 65y,
3) Motion to Quash writ of Execution (Reburiano vs.
Court o f Appeals, 301 SCRA 342; Limpin vs. IAC, 147 SCRA
516)-,
4) Petition for revival of judgment (Sec. 6, Rule 39);
5) Motion for Execution pending appeal (Sec. 2, Rule
39);
6) Petition for certiorari in case of denial of execution
pending appeal (Sec. 1, Rule 65);
7) Posting of supersedeas bond in case of discretionary
execution (Sec. 3, Rule 39)-,
8) Motion to issue orders of restitution or reparation
of damages in case of reversal of executed judgment (Sec. 5,
Rule 39);
9) Levy on execution or garnishment (Sec. 9, Rule 39);
10) “Terceria* or Third-Party Claim (Sec. 16, Rule 39);
11) Redemption (Sec. 27, Rule 39);
12) Motion for issuance of writ of possession (Sec. 33,
Rule 39)
13) Motion for examination under oath of the defendant
(Sec. 36, Rule 39);
14) Motion for appointment of a receiver (Sec. 41, Rule
39);
15) Motion for clarificatory judgment;
16) Motion for issuance of writ of demolition;
17) Petition for certiorari and Prohibition on the Order of
Execution (Sec. 1, Rule 65);
18) Injunction to restrain execution. (Air Transportation
Office [ATO] vs. Court o f Appeals, et al, G.R. No. 173616, June
25, 2014)
 CHAPTER V

PROCEEDINGS OR REMEDIES BEFORE

THE COMMENCEMENT OF A CIVIL ACTION

Q: W hat are th e proceedings or rem edies available before

th e filing o f a co m p lain t to th e c o u rt?
A: The following proceedings or remedies may take place or
availed of before the filing of a complaint before the court as
prescribed by law or the rules, to wit:
1) Referral of the case to the barangay for conciliation
and mediation. (R.A. 7160) and issuance of Barangay
Protection Order (R.A. 9262);
2) Affidavit of Adverse Claim;
3) Voluntary Arbitration or Alternative Dispute Reso­
lution;
4) DNA Evidence/Testing

I. BARANGAY LAW (]

1. Prim ary O bjective o f B arangay Law:

Q: W hat is th e prim ary purpose o f K atarungang Pamba-

rangay Law?
A: The Katarungang Pambarangay Law, as provided
under the Local Government Code (Republic Act No. 7160),
establishes a system of amicably settling the disputes at the
barangay level.

234
 CHAPTER V 235
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
The procedures on Katarungang Pambarangay or
barangay conciliation are duly embodied under the pertinent
provisions Republic Act No. 7160 of the Local Government
Code 1991 more particularly Secs. 399-422.
Q: W hat is th e prim ordial objective of K atarungang
Pam barangay Law?
A: The primordial objective of Presidential Decree No. 1508
is to reduce the number of court litigations and prevent the
deterioration of the quality of justice which has been brought
by the indiscriminate filing of cases in the courts.

Case Law:

The primordial objective of Presidential Decree No. 1508

to reduce th e num ber o f co u rt litig atio n s and prevent
th e d eterio ratio n o f th e q u ality o f ju stic e w hich has been
brought about by th e in d iscrim in ate filing of cases in
courts. To ensure this objective, Sec. 6 of Presidential Decree
No. 1508 requires the parties to undergo a conciliation
process before the Lupon Chairman or the Pangkat ng
Tagapagkasundo as a precondition to filing a complaint in
court subject to certain exceptions which are inapplicable
to this case. The said section has been declared compulsory
in nature. (Librada M. Aqiono vs. Ernest S. Laure, G.R. No.
153567, February 18, 2008)

2 . G eneral Rule on R eferral of th e Case to th e

Lupon (Bar E xam ination 2016):_______________

Sec. 412(a) of Republic Act No. 7160 otherwise known

as the Local G overnm ent Code o f 1991, provides for the
mandatory rule on the referral of the case to the barangay. It
states that:

“Sec. 4 1 2 . (a) No com plaint, p etition , action, or

proceedings involving any m atter w ithin th e authority
o f th e Lupon shall be filed or in stitu ted directly or
indirectly in court or in any other governm ent office
for adjudication, u n less there has been a confrontation
betw een th e parties before th e Lupon chairm an or
236 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e p a n g k a t, and th a t no conoillation or settlem en t

has been reached as certified by th e Lupon S ecretary
a s a tte s te d to by th e Lupon or p a n g k a t chairm an
or u n less th e se ttle m e n t has been repudiated by th e
parties th e re to .”

COMMENTS
Q: W hat is th e rule regarding referral of th e case before
th e barangay lupon?
A: As a general rule, No complaint, petition, action, or
proceedings involving any matter within the authority of the
Lupon shall be filed or instituted directly or indirectly in court
or in any other government office for adjudication, unless
there has been a confrontation between the parties before
the Lupon chairman or the pangkat, and that no conciliation
or settlement has been reached as certified by the Lupon
Secretary as attested to by the Lupon or pangkat chairman
or unless the settlement has been repudiated by the parties
thereto.
Q: W hat is th e m an d ate o f th e K atarungang Pam barangay
Law?
A: A prior recourse thereto is a pre-condition before filing a
complaint in court or any government offices.

All disputes are subject to Barangay conciliation

pursuant to the Revised Katarungang Pambarangay Law
(formerly Presidential Decree No. 1508, repealed and now
replaced by Secs. 399-422, Chapter VII, Title I, Book III, and
Sec. 515, Title I, Book IV, Republic Act No. 7160, otherwise
known as the Local Government Code of 1991), and prior
recourse thereto is a pre-condition before filing a complaint
in court or any government offices.
Q: W hat is th e d u ty o f th e co u rt in co n n ectio n w ith th e
com pliance o f referral to th e lupon?
A: All complaints and/or informations filed or raffled to
your sala/ branch of the Regional Trial Court, Metropolitan
 CHAPTER V 237
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Trial Court or Municipal Trial Court shall be carefully read
and scrutinized to determine if there has been a compliance
with prior Barangay conciliation procedure under the Revised
Katarungang Pambarangay Law and its Implementing Rules
and Regulations, as a pre-condition to judicial action,
particularly whether the certification to file action attached
to the records of the case comply with the requirements
hereinabove enumerated in par. II. (par. 4 of Adm. Circ. No.
14-93)
Q: Is it required th a t a new co m plaint be filed against
th e h eirs o f th e original resp o n d en t w hen th e said original
p arty h as already died?
A: Yes, a new complaint should be filed before the barangay
against the heirs of the deceased since they were not impleaded
as parties in the Lupon.

The court thus rules that the petitioner’s complaint

against respondent Heirs of Carlos Palanca was premature. It
bears stressing that they were not impleaded by the petitioner
as parties-respondents before the Lupon. The petitioner filed
her complaint solely against respondent Josephine Pablo.
Moreover, the said respondent heirs were not privy to the said
agreement, and, such, were not bound by it. (Sec. 412 o f the
Local Government Code)
If the complainant/plaintiff fails to comply with
the requirements of the Local Government Code, such
complainant filed with the court may be dismissed for failure
to exhaust all administrative remedies. (Estela L. Berba vs.
Josephine Pablo and The Heirs o f Carlos Palanca, G.R. No.
160032, November 11, 2005)
Q: Would lack o f co n ciliatio n p rocess affects th e
ju ris d ic tio n o f th e co u rt over th e su b ject m a tte r and over
th e d efen d an t once acquired?
A: No, conciliation process is not a jurisdictional
requirement, so that non-compliance therewith cannot affect
the jurisdiction which the court has otherwise acquired over
the subject matter or over the person of the defendant.
238 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

It is true that the precise technical effect of failure

to comply with the requirement of Sec. 412 of the Local
Government Code on barangay conciliation (previously
contained in Sec. 5 of P.D. 1508) is much the same effect
produced by non-exhaustion of administrative remedies
— the complaint becomes afflicted with the vice of pre­
maturity; and the controversy there alleged is not ripe for
judicial determination. The complaint becomes vulnerable to
a motion to dismiss. Nevertheless, the conciliation process
is not a jurisdictional requirement, so that non-compliance
therewith cannot affect their jurisdiction which the court has
otherwise acquired over the subject matter or over the person
of the defendant. (Librada M. Aquino vs. Ernest S. Laure, G.R.
No. 153567, February 18, 2008)
Q: May th e c o u rt m o tu p r o p r io refer th e case to th e
L u pon for am icable se ttle m e n t?
A: Yes, the court in which non-criminal cases not falling
within the authority of the lupon under this Code are filed
may, at any time before trial, motu proprio refer the case to
the lupon concerned for amicable settlement.

l^ e g a lJ B a s is ^
“Sec. 4 0 8 . Subject M atter fo r Am icable
S ettlem en t; Exception Thereto. —
XX X X.

The court In w hich non-crim inal c a ses n ot falling

w ithin th e authority o f th e lupon under th is Code
are filed m ay, at any tim e before trial, m otu proprio
refer th e case to th e lupon concerned for am icable
se ttle m e n t.”
Q: Is actu al co n fro n tatio n w ith th e Lupon C hairm an for
am icable s e ttle m e n ts a su b sta n tia l com pliance w ith th e
law on barangay?
A: Yes, the confrontation before the Lupon Chairman or the
pangkat is sufficient compliance with the precondition for the
filing of the case in court.
 CHAPTER V 239
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

Here, the Lupon/Pangkat Chairman and Lupon/Pangkat

Secretary signed the Certificate to File Action stating that no
settlement was reached by the parties. While admittedly no
pangkat was constituted, it was not denied that the parties
met at the office of the Barangay Chairman for possible
settlement. It is noteworthy that under the afore-quoted
provision, the confrontation before the Lupon Chairman or the
pangkat is sufficient compliance with the precondition for the
filing of the case in court. This is the truth notwithstanding
the mandate of Sec. 410(b) of the same law that the Barangay
Chairman shall constitute a pangkat if he fails in his mediation
efforts. Sec. 410(b) should be construed together with Sec.
412, as well as the circumstances obtaining in and peculiar
to the case. On this score, it is significant that the Barangay
Chairman or Punong Barangay is herself the Chairman of
the Lupon under the Local Government Code. (Milagros G.
Lumbuan vs. Alfredo A. Ronquillo, G.R. No. 155713, May 5,
2006)

3. E xceptions to th e R eferral o f th e Case to th e Lupon:*1

Q: W hat are th e exceptions to referral to th e lupon for

conciliatio n ?
A: Sec. 408 o f Republic Act No. 7160 of the same Code
enumerates the exceptions to the application of the rule on
the referral to the barangay. It states that:
(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 or a fine exceeding Five Thousand pesos (P5,000.00);
(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
240 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

agree to submit their differences to amicable settlement by an

appropriate lupon;
(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 or upon the
recommendation of the Secretary of Justice.
Q: Is referral to th e barangay L u p o n required in case of
an e s ta te o f th e d eced en t? (1991 Bar Exam ination)
A: No, under the law only natural persons are allowed
during barangay proceedings, and juridical person like the
estate of the decedent is one of the exceptions to referral to
the barangay.1

Case Law:

The above-cited provision of law applies only to cases

involving natural persons, and not where any of the parties
is a juridical person such as corporation, partnership,
corporation sole, testate or intestate estate. Our Honorable
Court in the case of Vda. de Borromeo vs. Pogoy, 126 SCRA
217, has already ruled that: “Since the real party-in-interest
in this case is the intestate estate which is a juridical person,
the plaintiff administrator may file the complaint in court
without the same being coursed to the barangay lupon for
arbitration.” (Id.)
Further, Sec. 412(b) o f th e sam e Code provides:
W here p a rtie s m ay go d irectly to co u rt. — The parties
may go directly to court in the following instances:
1) Where the accused is under detention;
2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
3) Where actions are coupled with provisional reme­
dies such as preliminary injunction, attachment, delivery of
personal property, and support pendente lite; and
 CHAPTER V 241
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
4) Where the action may otherwise be barred by the
statute of limitations.
5) Conciliation Among Members of Indigenous Cultural
Communities. — The customs and traditions of indigenous
cultural communities shall be applied in settling disputes
between members of the cultural communities. (2016 Bar
Exam ination)

Q: Is referral to th e barangay required in h a b e a s c o r p u s

cases?
A: No. Sec. 412 of the LGC does not apply to habeas corpus
proceedings where a person is deprived of personal liberty.

| Case Law^

The barangay conciliation requirement in Sec. 412 of

the LGC does not apply to habeas corpus proceedings where
a person is “deprived of personal liberty.” In such a case,
Sec. 412 expressly authorizes the parties “to go directly to
court” without need of any conciliation proceedings. There
is deprivation of personal liberty warranting a petition for
habeas corpus where the “rightful custody of any person
entitled thereto.” Thus, the Court of Appeals did not err when
it dismissed Edwin’s contentions on the additional ground
that Sec. 412 exempts petitions for habeas corpus from the
barangay conciliation requirement. (Edwin N. Tribiana vs.
Lourdes M. Tribiana, G.R. No. 137359, September 13, 2004)
Q: Is referral to th e barangay required if th e com plaint
is coupled w ith prayer for th e issu an ce o f in ju n ctio n ?
A: No, a complaint which is coupled with a prayer for
the issuance of a preliminary injunction falls among the
exceptions to the rule requiring the referral to barangay
conciliation.

Case Law:

As for petitioner’s failure to resort to barangay conciliation,

Section 412 of the Local Government Code provides that
242 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

parties may go directly to court where the action is coupled

with provisional remedies.
While there is no dispute herein that the present case
was never referred to the Barangay Lupon for conciliation
before petitioner instituted the civil case, there is likewise no
quibbling that his Complaint was coupled with a prayer for
the issuance of a preliminary injunction. Hence, it falls among
the exceptions to the rule requiring the referral to baranggay
conciliation.
As good faith is always presumed, in the absence of proof
of improper motive on the part of the petitioner, the Court
cannot countenance the appellate court’s assumption that
petitioner was solely intent on evading the requirements of
the LGC in applying for a preliminary injunction. This Court
cannot sustain a dismissal of an action on account of an
unproven assertion of bad faith. (Rudy L. Racpan vs. Sharon
Barroga-Haigh, G.R. No. 234499, June 6, 2018)

Q: W hat are th e o th er in stan ce s w here th e p arty m ay

file th e case directly w ith th e co u rt p u rsu an t to Adm.
Circ. No. 14-93?
The other cases where a party may resort to the filing of
the case directly with the court without referring the same
with the barangay for conciliation are spelled out under Adm.
Circular No. 14-93, which are as follows, to wit:
a. Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one year or a fine over five
thousand pesos (P5,000.00);
b. Offenses where there is no private offended party;
c. Disputes where urgent legal action is necessary to
prevent injustice from being committed or further continued,
specifically the following:
c.l. Criminal cases where accused is under police
custody or detention (See Sec. 412[b][l], Revised Katarungang
Pambarangay Law);
c.2. Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a person
illegally deprived of his liberty or one acting in his behalf.
 CHAPTER V 243
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
d) Actions coupled with provisional remedies such
as preliminary injunction, attachment, delivery of personal
property and support during the pendency of the action; and
e) Actions which may be barred by the Statute of
Limitations.

I a) O ther E xceptions to th e R eferral of th e Case to th e I

\ LuP ° n: 1
Q: W hat are th e o th e r in sta n c e s w here referral to th e
barangay is n o t required?
A: The other instances where referral to the barangay is not
required are as follows, to wit:
1) Labor cases;
2) Disputes involving violation of Comprehensive
Agrarian Reform Act.

Q: W hat are th e rules on venue o f barangay conciliation

proceedings?
A: Sec. 409 o f Republic Act No. 7160 provides for the rules
on venue in the filing of the complaint before the barangay. It
states that:
“D isputes betw een or am ong persons actually
residing in the sam e barangay shall be brought
for am icable se ttle m e n t before th e Lupon o f said
barangay.
Those involving actual residents o f different
barangaya w ithin th e sam e c ity or m unicipality shall
be brought in th e baran gay where th e respondent
or any o f th e respondents actually resides, at th e
electio n o f th e com plainant.
However, all d isp u tes w hich involve real property
or any in terest therein shall be brought in th e
baran gay where th e real property or any part th ereof
is situated.
244 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Also, th o se arising at th e workplace where the

conten din g are em ployed or at th e in stitu tion where
such parties are enrolled for study, shall be brought
in th e barangay where su ch workplace or in stitu tion
is located .” (Emphasis supplied)

COMMENTS
Q: Where will be th e venue o f barangay conciliation?
A: The rules on venue as prescribed by the above provision
of law shall as follows, to wit:
1) Disputes between or among persons actually
residing in the same barangay shall be brought for amicable
settlement before the Lupon of said barangay.
2) 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.
3) All disputes which involve real property or any
interest therein shall be brought in the barangay where the
real property or any part thereof is situated.
4) Those arising at the workplace 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.

I
This is a complaint filed by petitioner Agbayani against
respondent Genabe for slander. The Department of Justice
found that the complaint fails to state a cause of action on
the ground of non-compliance with the provisions of the Local
Government Code of 1991, on the Katarungang Pambarangay
conciliation procedure. This finding was affirmed by the Court
ofAppeals and the Supreme Court. Undeniably, both petitioner
Agbayani and respondent Genabe are residents of Las Pinas
City and both work at the RTC, and the incident which is
the subject matter of the case happened in their workplace.
 CHAPTER V 245
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Agbayani’s complaint should have undergone the mandatory
barangay conciliation for possible amicable settlement with
respondent Genabe, pursuant to Secs. 408 and 409, R.A.
7160 or the Local Government Code of 1991. The compulsoiy
process of barangay conciliation is a pre-condition for the
filing of the complaint in court. Where the complaint (a) did
not state that it is one of the excepted cases, or (b) it did not
allege prior availment of said conciliation process, or (c) did
not have a certification that no conciliation had been reached
by the parties, the case should be dismissed. Here, petitioner
Agbayani failed to show that the instant case is not one of
the cases that is covered by the application of the rule on
mandatory barangay conciliation. (Leticia B. Agabayani vs.
Court o f Appeals, Department of Justice and Loida Marcelina
J. Genabe, G.R. No. 183623, June 25, 2012)
Q: W hat is th e req u irem en t in o rder for th e L u p o n to
acquire ju risd ic tio n ? (2018 Bar Exam ination)
A: Actual residency is necessary in order for the lupon to
acquire jurisdiction.

I c ,,e Uw! I
In fine, since the plaintiff-herein petitioner, the real
party-in-interest, is not an actual resident of the barangay
where the defendant-herein respondent resides, the local
lupon has no jurisdiction over their dispute, hence, prior
referral to it for conciliation is not a pre-condition to its filing
in court. (Dante M. Pascual represented by Reymel R. Sagario
vs. Marilou M. Pascual, G.R. No. 157830, November 17, 2005)
Q: Is referral to th e Lupon for con ciliation applicable to
a n o n -resid en t?
A: Barangay conciliation is not applicable in case the
respondent is a non-resident of the barangay.

In its decision dated 28 March 2000, the trial court held

that the case is not covered by the barangay conciliation
246 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

process since respondent is a resident of Hongkong. The trial

court noted that petitioner did not controvert respondent’s
allegation that petitioner ejected respondent’s lodgers
sometime in March 1996 even if the contract of lease would
expire only on 7 July 1996. The trial court found untenable
petitioner’s contention that subleasing the rented premises as
a dwelling or as lodging house. Thus, the trial court ordered
petitioner to pay respondent actual damages of P45,000.00
for respondent’s lost income from her lodgers for the months
of April, May, and June 1996, and attorney’s fees, P8.000.00.
In this case, it is undisputed that petitioner ejected
respondent’s lodgers three months before the expiration
of the lease contract on 7 July 1996. Petitioner maintains
that she had the right to terminate the contract prior to its
expiration because respondent allegedly violated the terms
of the lease contract by subleasing the rented premises.
Petitioner’s assertion is belied by the provision in the lease
contract which states that the lessee can “use the premises
as a dwelling or as lodging house.” Furthermore, the lease
contract clearly provides that petitioner leased to respondent
the ground floor of her residential house for a term of one
year commencing from 7 July 1995. Thus, the lease contract
would expire only on 7 July 1996. However, petitioner started
ejecting respondent’s lodgers resulted in respondent losing
income from her lodgers. Hence, it was proper for the trial
court and the appellate court to order petitioner to pay
respondent actual damages in the amount of P45,000.00.
(Doris U. Sunbanun vs. Aurora B. Go, G.R. No. 163280,
February 2, 2010)

Q: W hat Is th e procedure to be followed for th e am icable

s e ttle m e n t of th e case?
A: Under Sec. 4 10 o f th e Local G overnm ent Code,
referral of dispute to the Barangay Lupon is required where
the parties thereto are individuals. It states that:
“Sec. 4 1 0 . Procedure fo r Amicable S ettlem en t
— (a) Who m ay in itia te proceeding — Upon paym ent
 CHAPTER V
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
o f th e appropriate filing fee, any individual who has
a cause o f action against another individual involving
any m atter w ithin th e authority o f th e lupon m ay
com plain, orally or in writing, to th e lupon chairm an
o f th e barangay.
(b) M ediation by lupon chairm an — Upon
receipt o f th e com plaint, th e lupon chairm an
shall, w ithin th e next working day, sum m on the
respondent(s), w ith n otice to th e com plainant(s)
for them and their w itn esses to appear before him
for a m ediation o f their con flictin g in terests. If he
fails in h is m ediation effort w ithin fifteen (15) days
from th e first m eetin g o f th e parties before him , he
shall forthw ith s e t a date for th e con stitu tio n o f the
p a n g k a t in accordance w ith th e provisions o f th is
Chapter.
(c) Suspension o f p rescrip tive p erio d o f
offenses — While th e dispute is under m ediation,
con ciliation , or arbitration, th e prescriptive periods
for offen ses and cause of action under existin g laws
shall be interrupted upon filing o f th e com plaint
w ith th e punong barangay. The prescriptive periods
shall resum e upon receipt by th e com plainant o f th e
com plaint or th e certificate o f repudiation or o f th e
certification to file action issu ed by th e lupon or
p a n g k a t secretary: Provided, however, That such
interruption shall n ot exceed six ty (60) days from th e
filing o f th e com plaint w ith th e punong barangay.
(d) Issuance o f summons; Hearing; Grounds
fo r disqu alification — The p a n g k a t shall convene
n ot later than three (3) days from its co n stitu tio n ,
on th e day and hour se t by th e lupon chairm an, to
hear both parties and their w itn esses, sim plify issu es,
and explore all p ossib ilities for am icable settlem en t.
For th is purpose, th e p a n g k a t m ay issu e sum m ons
for th e personal appearance o f parties and w itn esses
before it. In th e ev en t th at a party m oves to disqualify
any m em ber o f th e p a n g k a t by reason o f relationship,
bias, in terest, or any other sim ilar grounds discovered
after th e c o n stitu tio n o f th e p a n g k a t, th e m atter shall
be resolved by th e affirm ative v o te o f th e m ajority o f
th e p a n g k a t w hose d ecision shall be final.
Should disqualification be decided upon, th e
resulting vacancy shall be filled as herein provided
for.
248 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(e) Period to arrive a t a settlem en t — The

p a n g k a t sh all arrive at a se ttle m e n t or resolution o f
th e dispute w ithin fifteen (15) days from th e day it
con ven es in accordance w ith th is S ection . This period
shall, at th e discretion o f th e p a n g k a t, be extendible
for another period w hich shall n ot exceed fifteen (15)
days, excep t in clearly m eritorious c a ses.”

COMMENTS
Q: Who m ay in itia te an actio n before th e barangay?
A: As prescribed by the above provision of law, upon
payment of the appropriate filing fee, any individual who
has a cause of action against another individual involving
any matter within the authority of the lupon may complain,
orally or in writing, to the lupon chairman of the barangay.

Q: W hat are th e d u ties o f th e lupon ch airm an upon

receip t o f th e co m p lain t?
A: As expressly provided by the above provision of law, upon
receipt of the complaint, the lupon chairman shall, within the
next working day shall:
a) Summon the respondent(s), with notice to the
complainant(s) for them and their witnesses to appear before
him for a mediation of their conflicting interests;
b) If he fails in his mediation effort within 15 days from
the first meeting of the parties before him, he shall forthwith
set a date for the constitution of the pangkat in accordance
with the provisions of this Chapter.
Q: W hat Is th e effect o f th e pendency of th e m ediation,
conciliatio n , or arb itra tio n ?
A: While the dispute is under mediation, conciliation, or
arbitration, th e p rescrip tiv e periods for offenses and cause
of actio n u n d er existing laws sh all be in te rru p te d upon
filing of the complaint with the punong barangay.
Q: W hen does th e prescrip tiv e period resu m e?
A: The prescriptive periods shall resume upon receipt by the
complainant of the complaint or the certificate of repudiation
or of the certification to file action issued by the lupon or
 CHAPTER V 249
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
pangkat secretary: Provided, however, That such interruption
shall not exceed 60 days from the filing of the complaint with
the punong barangay.
Q: W hat are th e d u ties o f th e p an g k at?
A: The pangkat shall have the following duties , as follows,
to wit:
1) Convene not later than three days from its
constitution, on the day and hour set by the lupon chairman;
2) Hear both parties and their witnesses;
3) Simplify issues; and
4) Explore all possibilities for amicable settlement.
Q: W hat are th e pow ers o f th e p an g k at?
A: The pangkat may exercise the following powers:
1) Issue summons for the personal appearance of
parties and witnesses before it.
2) In the event that a party moves to disqualify any
member of the pangkat by reason of relationship, bias,
interest, or any other similar grounds discovered after the
constitution of the pangkat, the matter shall be resolved by
the affirmative vote of the majority of the pangkat whose
decision shall be final.

Q: W hat is th e rule in case o f disqualification o f th e

m em ber o f th e p a n g k a t?
A: As mandated by the above-cited provision of law, should
disqualification be decided upon, the resulting vacancy shall
be filled as herein provided for.

Q: W hat is th e tim e fram e w ith in w hich th e pangkat

should arrive a t a s e ttle m e n t?
A: The pangkat shall arrive at a settlement or resolution
of the dispute within 15 days from the day it convenes in
accordance with this Section. This period shall, at the
discretion of the pangkat, be extendible for another period
250 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

which shall not exceed 15 days, except in clearly meritorious

cases.
Q: W hat are th e req u irem en ts for th e issuance of a
certificate to file actio n ?
A: Under the provisions of Republic Act No. 7160 on
Katarungang Pambarangay conciliation, as implemented
by the Katarungang Pambarangay Rules and Regulations
promulgated by the Secretaiy of Justice, the certification for
filing a complaint in court or any government office shall be
issued by Barangay authorities only upon compliance with
the following requirements:
1. Issued by the Lupon Secretary and attested
by the Lupon Chairman (Punong Barangay), certifying
that a confrontation of the parties has taken place and
that a conciliation or settlement has been reached, but
the same has been subsequently repudiated (Sec. 412,
Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III,
Katarungang Pambarangay Rules).
2. Issued by the Pangkat Secretary and attested by the
Pangkat Chairman, certifying that:
a) A confrontation of the parties took place but no
conciliation/settlement has been reached (Sec. 4[f], Rule III,
Katarungang Pambarangay Rules); or
b) That no personal confrontation took place before
the Pangkat through no fault of the complainant (Sec. 4[f],
Rule III, Katarungang Pambarangay Rules).
3. Issued by the Punong Barangay, as requested by the
proper party on the ground of failure of settlement where the
dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the
customs and traditions of that particular cultural community,
or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to
submit their dispute to the indigenous system of amicable
settlement, and there has been no settlement as certified by
the datu or tribal leader or elder to the Punong Barangay of the
place of settlement. (Secs. 1, 4, and 5, Rule IX, Katarungang
Pambarangay Rules)
 CHAPTER V 251
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

6. A ppearance of th e P arties in Person:

Q: W hat is th e procedure to be followed in case of

appearance in barangay proceedings?
A: Parties must personally appear without the assistance
of a counsel or representative, except for minors and
incompetents who shall be assisted by next-of-kin.

S u bstantive Basis:

Sec. 41 5 o f th e said Code provides for the rule on

appearances before the barangay. It states:
"See. 4 1 5 . A ppearance o f P arties in Person. —
In all katarungang patn baran gay proceedings, th e
parties m u st appear in person w ithout th e assistan ce
o f cou n sel or representative, excep t for m inors and
in com p eten ts who m ay be a ssisted by th eir next-of-
kin who are n ot law yers.”

COMMENTS
Q: W hat is th e procedure to be followed on th e appearance
during barangay proceedings?
A: In all katarungangpambarangay proceedings, the parties
must appear in person without the assistance of counsel or
representative, except for minors and incompetents who may
be assisted by their next-of-kin who are not lawyers.

7. Effect o f Amicable S e ttle m e n t and A rbitration H

[
Q: W hat is th e effect o f am icable s e ttle m e n t and
arb itratio n aw ard?
A: The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a court upon
the expiration of ten (10) days from the date thereof.
252 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Sec. 416 o f Republic Act No. 7160 provides for the

effects of amicable settlement and arbitration award. It states
that:
“Sec. 4 1 6 . E ffect o f Am icable Settlem en t and
A rbitration Award. — The am icable settlem en t and
arbitration award shall have th e force and effect o f a
final judgm ent o f a court upon th e expiration o f ten
(10) days from th e date thereof, u n less repudiation of
th e settlem en t has been m ade or a petition to nullify
th e award has been filed before th e proper city or
m unicipal court.
However, th is provision shall n ot apply to court
cases settled by the lupon under th e last paragraph
o f Section 4 0 8 o f th is Code, in w hich case the
com prom ise settlem en t agreed upon by th e parties
before th e lupon chairm an or th e p a n g k a t chairm an
shall be subm itted to th e court and upon approval
thereof, have th e force and effect o f a judgm ent o f
said court.”

COMMENTS:
Q: W hat is th e n atu re of th e am icable se ttle m e n t and
arb itratio n aw ard?
A: The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a court upon
the expiration of 10 days from the date thereof, unless
repudiation of the settlement has been made or a petition
to nullify the award has been filed before the proper city or
municipal court.

Case Law:
Cognizant of the beneficial effects of amicable settlements,
the Katarungang Pambarangay Law (P.D. 1508) and later
the Local Government Code provide for a mechanism for
conciliation where party-litigants can enter into an agreement
in the barangay level to reduce the deterioration of the quality
of justice due to indiscriminate filing of court cases. Thus,
 CHAPTER V 253
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
under Section 416 of the said Code, an amicable settlement
shall have the force and effect of a final judgment of the court
upon the expiration of 10 days from the date thereof, unless
repudiation of the settlement has been made or a petition
to nullify the award has been filed before the proper court.
(Proceso Quiros, et al. vs. Marcelo Arjona, et al, G.R. No.
158901, March 9, 2004)

Q: W hat are th e grounds for rep u d iation of am icable

se ttle m e n t?
A: The grounds for repudiation of amicable settlement are,
where the consent is vitiated by force, violence, or intimidation.

|| Case Law ^Jj

Under Section 416 of the LGC, the amicable settlement

executed by the parties before the Lupon on the arbitration
award has the force and effect of a final judgment of a court
upon the expiration of 10 days from the date thereof, unless
the settlement is repudiated within the period therefor, where
the consent is vitiated by force, violence or intimidation, or
a petition to nullify the award is filed before the proper city
or municipal court. The repudiation of the settlement shall
be sufficient basis for the issuance of a certification to file a
complaint. (Ma. Teresa Vidal, et al. vs. Ma. Teresa O. Escueta,
G.R. No. 156228, December 10, 2003)
Q: W hat is th e effect o f a barangay com prom ise
agreem en t if n o t ju dicially approved?
A: Amicable settlement has the force and effect of final
judgment/ res judicata even not judicially approved.

It is true that an amicable settlement reached at the

barangay conciliation proceedings, like the Kasunduang Pag-
aayos in this case, is binding between the contracting parties
and, upon its perfection, is immediately executory insofar as
it is not contrary to law, good morals, good customs, public
254 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

order and public policy. This is in accord with the broad

precept of Art. 2 0 3 7 o f th e Civil Code, viz.:
A com prom ise has u p o n th e p artie s th e effect and
a u th o rity of r e s J u d ic a ta ; b u t th e re shall be no execution
except in com pliance w ith a ju d icial com prom ise.
Being a by-product o f m u tu al concessions and good
faith of th e p arties, an am icable s e ttle m e n t h as th e force
and effect of r e s J u d ic a ta even if n o t judicially approved.
It transcends being a mere contract binding only upon the
parties thereto, and is akin to a judgment that is subject to
execution in accordance with the Rules. Thus, u n d er Sec. 417
of th e Local G overnm ent Code, such am icable s e ttle m e n t
or arb itratio n aw ard m ay be enforced by execution by
th e B a r a n g a y L u p o n w ith in six m o n th s from th e date
of se ttle m e n t, or by filing an actio n to enforce such
s e ttle m e n t in th e ap p ro p riate city o r m unicipal co u rt, if
beyond th e six-m onth period.
Under the first remedy, the proceedings are covered by
the Local Government Code and Katarungang Pambarangay
Implementing Rules and Regulations. The Punong Barangay
is called upon during the hearing to determine solely the fact
of non-compliance of the terms of the settlement and to give
the defaulting party another chance at voluntarily complying
with his obligation under the settlement. Under the second
remedy, the proceedings are governed by the Rules of Court,
as amended. The cause o f actio n is th e am icable se ttle m e n t
itself, w hich, by o p eratio n o f law, h as th e force and effect
of a final ju d g m en t. (Crisanta Alcaraz Miguel vs. Jerry D.
Montanez, G.R. No. 191336, January 25, 2012)

Q: Are m ere allegations o f barangay conciliation in th e

com p lain t and certificate issued in co n n ectio n th erew ith a
com pliance o f th e law on e a rn e st effort betw een m em bers
of th e fam ily to am icably se ttle ?
A: Yes, the allegation in the complaint, as well as the
certification to file action by the barangay chairman, is
sufficient compliance with Art. 151 of the Family Code.
 CHAPTER V 255
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

The petitioners were able to comply with the requirements

of Art. 151 of the Family Code because they alleged in their
complaint that they had initiated a proceeding against
the respondent for unlawful detainer in the Katarungang
Pambarangay, in compliance with P.D. 1508; and that,
after due proceedings, no amicable settlement was arrived
at, resulting in the barangay chairman’s issuance of a
certificate to file action. The Court rules that such allegation
in the complaint, as well as the certification to file action by
the barangay chairman, is sufficient compliance with Art.
151 of the Family Code. It bears stressing that under Sec.
412(a) of Republic Act No. 7160, no complaint involving any
matter within the authority of the Lupon shall be instituted
or filed directly in court for adjudication unless there has
been a confrontation between the parties and no settlement
was reached. (April Martinez, Fritz Daniel Martinez and Maria
Olivia Martinez vs. Rodolfo G. Martinez, G.R. No. 162084, June
28, 2005)

8. Law on B arangay in R elation to th e Rules on

Sm all Claim s Cases:

Sec. 4(c), o f th e R ules o n Sm all Claim s Cases (A.M.

No. 08-8-7-SC), provides for the rule on the filing of a small
claims action in case of enforcement of a barangay amicable
settlement or an arbitration award involving money not
exceeding P400,000.00. It states that:
“Sec. 4 . A pplicability. — c) The en forcem en t o f a
barangay am icable se ttle m e n t or an arbitration award
involving m oney claim covered by th is Rule pursuant
to Sec. 4 1 7 o f Republic Act 7 1 6 0 , otherw ise known as
th e Local G overnm ent Code o f 1 9 9 1 .”

COMMENTS
Q: W hat is th e rem edy in case o f en fo rcem en t o f barangay
am icable se ttle m e n t o r an arb itra tio n aw ard involving a
m oney claim ?
256 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: File a small claims case before the MTC/MCTC pursuant

to Sec. 4 of the Rules on Small Claims case in relation Sec.
17 of Republic Act No. 7160 if the amount does not exceed
P400,000.00.

x ecu tio n o f Amicable S e ttle m e n t or A rbitration

Award:

Q: W hen will an am icable s e ttle m e n t and arb itratio n

award be enforced?
A: The amicable settlement and arbitration award shall be
enforced by execution within six (6) months from the date of
the settlement, afterwards, it is by way of appropriate action.

S ub stan tiv e Basis:

Sec. 4 1 7 o f th e Code provides for the rule on the

enforcement of amicable settlement or arbitration. It states
that:
"Sec. 4 1 7 . Execution. — The am icable
se ttle m e n t or arbitration award m ay be enforced by
execu tion by th e lupon w ithin six (6) m on th s from
th e date o f th e settlem en t. After th e lapse o f su ch
tim e, th e se ttle m e n t m ay be enforced by action in th e
appropriate c ity or m unicipal court.”

COMMENTS
Q: When can an am icable s e ttle m e n t or arb itratio n
aw ard be enforced?
A: Amicable settlement entered into by the parties therein
or arbitration award may be enforced in the following manner:
1) Execution by the lupon within six months from the
date of settlement; and
2) After the lapse of such time, the settlement may be
enforced by action in the appropriate city or municipal court.
 CHAPTER V 257
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

Also well stated in the case of Chavez vs. Court of

Appeals, a party’s non-compliance with the amicable
settlement paved the way for the application of Art. 2041
under which the other party may either enforce the
compromise, following the procedure laid out in the Revised
Katarungang Pambarangay Law, or consider it as rescinded
and insist upon his original demand. To quote:
In the case at bar, the Revised Katarungang Pamba­
rangay law provides for a two-tiered mode of enforcement
of an amicable settlement, to wit: (a) by execution by the
Punong Barangay which is quasi-judicial and summary on
nature on mere motion of the party entitled thereto; and (b)
an action in regular form, which remedy is judicial. How­
ever, the mode of enforcement does not rule out the right of
rescission under Art. 2041 of the Ciinl Code. The availabil­
ity of the right of rescission is apparent from the wording of
Sec. 417 itself which provides that the amicable settlement
“may” be enforced by execution by the lupon within six (6)
m onths from its date or by action in the appropriate city
or municipal court, if beyond that period. The use of the
word “m ay” clearly makes the procedure provided in the
Revised Katarungang Pambarangay Law directory or mere­
ly optional in nature. (Crisanta Alcaraz Miguel vs. Jerry D.
Montanez, G.R. No. 191336, January 25, 2012)
Q: How to ex ecu te th e ag reem en t after th e six m o n th s
period u n d er Sec. 4 1 7 ?
A: By express provision of Sec. 417 of the LGC, an action
for the enforcement of the settlement should be instituted in
the proper municipal or city court, and the venue for such
actions is governed by Rule 4, Sec. 1 of the 1997 Rules of
Civil Procedure, as amended.

Case Law:

Parenthetically, the Katarungang Pambarangay Imple­

menting Rules and Regulations, Rule VII, Sec. 2 provides:
258 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

SEC. 2. Modes of Execution. — The amicable

settlement or arbitration award settlement or date of
receipt of the award or from the date the obligation
stipulated in the settlement or adjudged the arbitration
award becomes due and demandable. After the lapse
of such time, the settlement or award may be enforced
by the appropriate local trial court pursuant to the
applicable provisions of the Rules of Court. An amicable
settlement reached in a case referred by the Court having
jurisdiction over the case to the Lupon shall be enforced
by execution by the said court. (Underlining supplied).
By express provision of Sec. 417 of the LGC, an action
for the enforcement of the settlement should be instituted
in the proper municipal or city court. This is regardless of
the nature of the complaint before the Lupon, and the relief
prayed for therein. The venue for such actions is governed
by Rule 4, Sec. 1 of the 1997 Rules of Civil Procedure, as
amended. An action for the enforcement of a settlement is
not one of those covered by the Rules on Summary Procedure
in civil cases; hence, the rules on regular procedure shall
apply, as provided for in Sec. 1, Rule 5 of the Rules of Civil
Procedure, as amended. (Ma. Teresa Vidal, Lulu Marquez, and
Carlos Sobremonte vs. Ma. Teresa O. Escueta, represented by
Herman O. Escueta, G.R. No. 156228, December 10, 2003)

10. R epudiation o f Amicable i

S e c . 4 1 8 o f t h e s a m e C o d e provides for the rule on

repudiation of amicable settlement may be repudiated by any
of the parties. It provides that:
“S ec. 4 1 8 . R epudiation. — Any party to th e
dispute m ay, w ithin ten (10) days from th e date o f
th e settle m e n t, repudiate th e sam e by filing w ith th e
lupon chairm an a sta tem en t to th at effect sworn to
before him , where th e co n sen t is vitiated by fraud,
vio len ce, or intim idation. Such repudiation shall be
su fficien t basis for th e issu an ce o f th e certifica tio n
f o r filin g a com plain t a s hereinabove provided.”
 CHAPTER V 259
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

COMMENTS:
Q: How will rep u d iatio n be m ade ?
A: Any party to the dispute may repudiate the settlement
within 10 days from the date of the said settlement by:
a) Filing with the lupon chairman a statement to that
effect sworn to before him where the consent is vitiated by
fraud, violence, or intimidation.

Q: W hat is th e effect o f th e filing o f th e rep u d iatio n ?

A: The filing of the repudiation shall be a sufficient basis for
the issuance of the certification for filing of a complaint.

Any party to the dispute may repudiate the settlement

within 10 days from the date of the said settlement by:
a) Filing with the lupon chairman a statement to that
effect sworn to before him where the consent is vitiated by
fraud, violence, or intimidation.
b) Under Sec. 416 of the LGC, the amicable settlement
executed by the parties before the Lupon on the arbitration
award has the force and effect of a final judgment of a court
upon the expiration of 10 days from the date thereof, unless
the settlement is repudiated within the period therefor, where
the consent is vitiated by force, violence or intimidation, or a
petition to nullify the award is filed before the proper city or
municipal court. The repudiation of the settlement shall be
sufficient basis for the issuance of a certification to file a com­
plaint. (Ma. Teresa Vidal, et al. vs. Ma. Teresa O. Escueta, G.R.
No. 156228, December 10, 2003)

Q: W hat are th e rem edies in case o f failure to com ply or

abide by th e com prom ise ag reem en t?
A: If one of the parties fails or refuses to abide by the
compromise, the other party may either enforce the compromise
or regard it as rescinded and insist upon his original demand
even without judicial declaration or rescission.
260 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

It m ust be emphasized, however, that enforcement by

execution of the amicable settlement, either under the first
or the second remedy, is only applicable if the contracting
parties have not repudiated such settlement within 10 days
from the date thereof in accordance with Sec. 416 of the Local
Government Code. If the amicable settlement is repudiated
by one party, either expressly or impliedly, the other party
has two options, namely, to enforce the compromise in
accordance with the Local Government Code or Rules of Court
as the case may be, or to consider it rescinded and insist
upon his original demand. This is in accord with Art. 2041 of
th e Civil Code, which qualifies the broad application of Art.
2037, v iz.:
If one of the parties fails or refuses to abide by the
compromise, the other party may either enforce the
compromise or regard it as rescinded and insist upon his
original demand.
In the case of L eo n o r vs. S y c ip , the S uprem e C ourt
(SC) had the occasion to explain this provision of Law. It ruled
that Art. 2041 does not require an action for rescission, and
the aggrieved party, by the breach of compromise agreement,
may just consider it already rescinded, to wit:
It is worthy of notice, in this connection, that, unlike
Art. 2039 of the same Code, which speaks of “a cause of
annulment or rescission of the compromise” and provides that
“the compromise may be annulled or rescinded” for the cause
therein specified, thus suggesting an action for annulment or
rescission said Art. 2041 confers upon the party concerned, not
a “cause” for rescission, or the right to “demand” the rescission
of a compromise, but the authority, not only to “regard it as
rescinded,” but also to “insist” upon his original demand.
The language of this Art. 2041, particularly when contrasted
with that of Art. 2039, denotes that no action for rescission is
required in said Art. 2041, and that the party aggrieved by the
breach of a compromise agreement may, if he chooses, bring
 CHAPTER V 261
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
the suit contemplated or involved in his original demand, as
if there had never been any compromise agreement, without
bringing an action for rescission thereof. He need not seek
a judicial declaration of rescission, for he may "regard”
the compromise agreem ent already "rescinded.” (Crisanta
Alcaraz Miguel vs. Jerry D. Montanez, G.R. No. 191336, January
25, 2012)

11. Law on Barangay Conciliation in relation to

Affirmative Defenses in th e Answer:

Q: What is th e rem edy in case of non-compliance with

barangay conciliation?
A: Non-compliance with barangay conciliation should
be raised as an affirmative in the answer on the ground of
failure to comply with the condition precedent, otherwise it is
deemed waived.

Sec. 12, Rule 8 of th e 1997 Rules of Civil Procedure

provides for the rule on the dismissal of the action for failure
to comply with rules on barangay conciliation. It states that:
"Sec. 12. A ffirm ative 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 8ection 5(b), Rule 6, and the following
grounds:
a x x x.
5. That a condition precedent for filing the
claim has not been complied with."

Q: What is th e nature of th e dism issal?

A: The dismissal of the case for failure to comply with the
condition precedent of non-referral of the case to the barangay
for purpose of conciliation is without prejudice.
262 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e possible rem edies o f th e p lain tiff/

claim ing p arty ?
A: The possible remedies in case of dismissal of the action
based on the failure to comply with condition precedent of
referral to the barangay, are as follows, to wit:
1) After the order of dismissal becomes final and
executoiy, refile the case after compliance with the condition
precedent;
2) Before the finality of the order of dismissal, comply
with the requirements and file a motion to revive the case,
if it falls under the Rules on Summary Procedure (Sec. 18);
otherwise refile the case.

12. D ism issal o f th e Case for N on-referral to th e fl

B arangay for C onciliation in relatio n to th e Rules I
on Sum m ary Procedure: ||

Sec. 18 o f th e Rules on Sum m ary Procedure provides

for the dismissal of the case without prejudice for failure
to comply with barangay conciliation, and its revival after
compliance. It states that:
"See. 18. R eferral to Lupon. — Cases requiring
referral to th e Lupon for con ciliation under th e
provisions o f Presidential Decree No. 1508 where
th ere is no show ing o f com pliance w ith such
requirem ent, shall be d ism issed w ithout prejudice,
and m ay be revived only after such requirem ent
shall have been com plied w ith. This provision shall
n ot apply to crim inal c a ses where th e accused was
arrested w ithout a warrant .”

COMMENTS
Q: W hat is th e rem edy in case o f th e dism issal for non-
com pliance w ith barangay co n ciliatio n ?
A: The order of dismissal is without prejudice to the refiling
of the case or revival of the case by motion before finality of
dismissal after compliance with the requirement.
 CHAPTER V 263
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

Dismissal of the case for failure to refer to barangay is

“without prejudice,” and cannot be revived by motion after it
becomes final:
Equally erroneous is private respondents’contention that
the rules regarding finality of judgments under the Revised
Rules of Court do not apply to cases covered by the 1991
Revised Rule on Summary procedure. Private respondents
claim that Sec. 18 of the 1991 Revised Rule on Summary
Procedure allows the revival of cases which were dismissed
for failure to submit the same to conciliation at the barangay
level, as required under Sec. 412 in relation to Sec. 408 of the
Local Government Code. The said provision states:
Referral to Lupon. — C ases requiring referral to Lupon
for co n ciliatio n u n d er th e provisions of P.D. No. 1508
w here th e re is no show ing o f com pliance w ith such
req u irem en t, shall be dism issed w ith o u t prejudice, and
m ay be revived only after such req u irem en t shall have
been com plied w ith.
There is nothing in the aforecited provision which
supports private respondents’ view. Sec. 18 merely states
that when a case covered by the 1991 Revised Rule on
Summary Procedure is d ism issed w ith o u t prejudice for
non-referral o f th e issu es to th e Lupon, the same may be
revived only after the dispute subject of the dismissed case
is submitted to barangay conciliation as required under the
Local Government Code.
T here is no declaratio n to th e effect th a t said case
m ay be revived by m ere m otion even after th e 15-day
period w ith in w hich to appeal or to file a m otion for
reco n sid eratio n h as lapsed. (Fidel M. Bahares Li, et al. vs.
Elizabeth Balising, et al., G.R. No. 132624, March 13, 2000)
Q: Can th e c o u rt m otu proprio dism iss th e case for n o n ­
referral o f th e case for barangay co n ciliation?
A: After the court determines that the case falls under
summary procedure, it may, from an examination of the
264 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

allegations therein and such evidence as may be attached

thereto, dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.

13. M otu P ro p rio D ism issal o f th e Case for Non-referral

to th e B arangay for C onciliation in relatio n to th e
Rules on Sum m ary P rocedure

Sec. 4 o f th e Rules on Sum m ary P rocedure provides

for the outright dismissal of the case for failure to comply
with barangay conciliation. It states that:

“Sec. 4 . Duty o f c o u rt — After th e court

determ in es th at th e case falls under sum m ary
procedure, it m ay, from an exam ination o f th e
allegations therein and such evid en ce as m ay be
attach ed th ereto, d ism iss th e case outright on any o f
th e grounds apparent therefrom for th e d ism issal o f a
civil a ctio n .”

COMMENTS
Can th e C ourt dism iss th e Case O u tright for Failure to
Comply w ith B arangay C onciliation?
Yes, the above-cited provision of law clearly provides
that:
After the court determines that the case falls under
summary procedure, it may, from an examination of the
allegations therein and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.
 CHAPTER V 265
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
S ample F orm No. 1; Barahoay C ertificate T o F ile Actioh

Republic of the Philippines

City of Manila
B a ra n g ay _______

OFFICE OF THE BARANGAY CAPTAIN

Com plainant,
- versus - B arangay Case No.
F o r:_____________

Respondent,
x -------------------------------------x
CERTIFICATE TO FILE ACTION
This is to certify that:
C om plainant ______________________________________
(name) and re s p o n d e n t__________________ (name) failed to
or refuse to:
______ Obey sum m ons or to ap p ear for hearing
______ No settlem ent/conciliation was reached
______ Settlem ent h a s been repudiated
a) A notice of a claim adverse to the registered owner, not
otherwise registerable under any other provision of the Land
Registration Act (Gardner v. Natividad, 52729-R, April 24, 1980)
b) Notice to the whole world that the claimant has
a specified interest in the land described in the title, and it
forbids the registration of any instrum ent affecting the title,
unless such registration be expressly subject to the specified
claim of the adverse claimant as caveator. (W.M. Magno & Sons,
Appliances Inc. v. Isleta, 48937-R, March 31, 1977)
And therefore, th e corresponding com plaint between
the parties m ay now be filed in court/governm ent office
concerned.
T h is __ day o f ________________, 2012.

L upon/P angkat Secretary

ATTESTED BY:

L upon/P angkat C hairm an

266 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

U. ADVERSE CLAIM

A. Basic C oncept:

Q: W hat is Adverse Claim ?

A: A claim adverse to the title of the registered owner.
Therefore, purely personal claims — such as commissions
from the sale of land, fees for legal services rendered,
expenses advanced or money loaned — cannot be annotated
on a certificate of title as adverse claims. (Pascual vs. Angeles,
SP-09753, December 15, 1986)

Q: Who is an Adverse C laim ant?

A: One who claims any right or interest in registered
land adverse to the registered owner arising subsequent to
the original registration. That interest is registerable as an
adverse claim if no other provision is made in Act No. 496 for
its registration. (Arrasola vs. Bemas, 86 SCRA 279)

Q: W hat is th e m ain objective o f adverse claim ?

A: It serves as a notice to the whole world that the claimant
has a specified interest in the land described in the title, and
it forbids the registration of any instrument affecting the title.

Case

Q: W hat is th e purpose o f adverse claim ?

A: The annotation of an adverse claim is designed to protect
the interest of a person over a piece of real property, where
the registration of such interest or right is not provided for
by P.D. No. 1529 or the Property Registration Decree, and
serves a warning to third parties dealing with said property
that someone is claiming an interest on the same.
 CHAPTER V 267
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

The annotation of an adverse claim is a measure

designed to protect the interest of a person over a piece of
real property, where the registration of such interest or right
is not otherwise provided for by the Land Registration Act
or Act No. 496 (now Presidential Decree No. 1529 or the
Property Registration Decree), and serves a warning to third
parties dealing with said property that someone is claiming
an interest on the same or a better right than that of the
registered owner thereof.
We ruled in Sajonas that the inscription of the adverse
claim on the title of the subject property was still in effect
on February 12, 1985, when the sheriff annotated the
notice of levy on execution in favor of respondent therein;
that respondent therein was charged with knowledge that
the subject property sought to be levied upon on execution
was encumbered by an interest the same as or better than
that of the registered owner thereof. We then said that such
notice of levy could not prevail over the existing adverse claim
inscribed on the certificate of title in favor of the Sajonases.
(Flor Martinez, represented by Macario Martinez, Authorized
Representative and Attomey-in-Fact vs. Ernesto G. Garcia and
Edilberto M. Brua, G.R. No. 166536, February 4, 2010)
Q: W hat are th e c h a ra c te ristic s o f an adverse claim ?
A: It has the following characteristics, it is adverse to the
registered owner, it arises after the original registration, and
it cannot be registered under the law.

Case Law:

An adverse claim is said to be sufficient for purposes

of registration if it has the following characteristics: 1) that
it is adverse to the registered owner; 2) that it arises after
original registration; 3) that it cannot be registered under
any other provision of the Land Registration Act. In addition,
268 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the statement shall contain a reference to the volume and

page of the certificate of title and a description of the land in
which a right or interest is claimed. (Cabrillos vs. Registration
o f Deeds, 19 C.A.R [2S] 393)

| 1. Filing o f Adverae^Claiin:

Q: How to avail th e rem edy of adverse claim ?

A: Sec. 110 o f A ct No. 4 9 6 otherwise known as the P roperty
R egistratio n Act provides for the remedy of adverse claim. It
states that:
“Sec. 110. Whoever claims any right or interest
in registered land adverse to the registered owner,
arising subsequent to the date of the original
registration, may, if no other provision is made in
this Act for registering the same, make a statem ent
in writing setting forth fully his alleged right or
interest, and how or under whom acquired, and a
reference to the volume and page of the certificate
of title of the registered owner, and a description of
the land in which the right or interest is claimed.
The statem ent shall be signed and sworn to, and shall
state the adverse claimant’s residence and designate
a place at which all notices may be served upon him.
This statem ent shall be entitled to registration as an
adverse claim, and the court, upon a petition of any
party in interest, shall grant a speedy hearing upon
the question of the validity of such adverse claim and
shall enter such decree therein as justice and equity
may require. If the claim is adjudged to be invalid,
the registration shall be canceled. If in any case the
court after notice and hearing shall find that a claim
thus registered was frivolous or vexatious, it may
tax the adverse claimant double or treble costs in its
discretion.”
COMMENTS
Q: How to file an adverse claim ?
A: Under the above-cited provision of law an adverse claim
may be filed by:
 CHAPTER V 269
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
1) Whoever claims any right or interest in registered
land adverse to the registered owner;
2) It arises subsequent to the date of the original
registration;
3) It may, if no other provision is made in this Act for
registering the same, make a statement in writing setting
forth fully his alleged right or interest, and how or under
whom acquired, and a reference to the volume and page of the
certificate of title of the registered owner, and a description of
the land in which the right or interest is claimed.

Q: W hat are th e c o n te n ts of th e s ta te m e n t?
A: Under the above-cited provision of law, the statement
shall be:
1) Signed and sworn to; and
2) It shall state the adverse claimant’s residence and
designate a place at which all notices may be served upon
him;
3) The statement shall be entitled to registration as an
adverse claim.
Q: W hat are th e form al req u isites o f an adverse claim ?
A: Hence, for the purpose of registration and as required
by the above-quoted provision, as amended, the following are
the formal requisites of an adverse claim:
1. the adverse claimant m ust state the following in
writing:
a. his alleged right or interest;
b. how and under whom such alleged right or
interest is acquired;
c. the description of the land in which the right or
interest is claimed; and
d. the certificate of title number.
2. the statement m ust be signed and sworn to before a
notary public or other officer authorized to administer oath;
and
270 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. the claimant should state his residence or the place

to which all notices may be served upon him. (Dario N. Lozano,
in his Capacity as administrator o f the estate o f the deceased
Agusto N. Lozano, Patrocinio Del Prado and Antonio Lozano vs.
Ignacio Ballesteros, G.R. No. 49470, April 8, 1991)
Q: W hat is th e m ain objective o f adverse claim in case
of double sale?
A: Annotation of adverse claim is a notice to the subsequent
buyer in case of double sale.

j^ C a s e ^ L a u n J

It is well-settled that in a double sale of real property,

ownership thereof “shall belong to the person acquiring
it who in good faith first recorded it in the Registry of
Property” [2nd paragraph, Art. 1544, New Civil Code of the
Philippines]. Under this applicable provision of law, mere
registration of the sale of real or immovable property is not
enough. The good faith of the buyer registering the sale
m ust concur. In the case of defendant-appellee, she cannot
be considered in good faith, within legal contemplation, and
her profession of innocence or lack of knowledge of the prior
sale is incredible and unworthy of belief. To be sure, the
annotation of plaintiffs-appellants’ adverse claim on the
title of vendor Pablo Garbin made defendant-appellee fully
aware of such earlier sale. (Felipa Garbin vs. Hon. Court of
Appeals [Former Tenth Division] and Spouses Antonio Julian
and Casimira Garbin, G.R. No. 107653, February 5, 1996)
Q: W hich one shall prevail adverse claim or no tice of
levy on ex ecu tio n ?
A: The notice of levy cannot prevail over the subsisting
adverse claim annotated at the back of the title.

| Case Law:

Even if the writ of execution covered real property,

following Sajonas again, the notice of levy cannot prevail over
the subsisting adverse claim annotated at the back of the title
 CHAPTER V 271
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
at the instance of the private respondents. Be it noted that, as
recited in the affidavit of adverse claim, private respondents
paid earnest money to the Asis spouses for the purchase of
the property, with the balance of the purchase price to be paid
upon the execution of the deed of absolute sale. Eventually,
the Asis couple executed the deed of absolute sale in favor
of private respondents, as a consequence of which a new
title was issued in the name of the latter. (Equatorial Realty
Development, Inc. vs. Sps. Desiderio & Edarlina Frogozo, and
the Hon. Court o f Appeals, G.R. No. 128563, March 25, 2004)
Q: W hat is th e d u ty o f th e c o u rt in case of q u estio n as
to its valid ity ?
A: The court, upon a petition of any party in interest, shall:
1) Grant a speedy hearing upon the question of the
validity of such adverse claim and shall enter such decree
therein as justice and equity may require.
2) If the claim is adjudged to be invalid, the registration
shall be canceled.
3) If in any case the court after notice and hearing shall
find that a claim thus registered was frivolous or vexatious,
it may tax the adverse claimant double or treble costs in its
discretion.

2. R eq u irem en ts for th e R eg istratio n and

C ancellation o f A dverse Claim:

Q: W hat are th e req u irem en ts for th e reg istratio n and

can cellatio n o f adverse claim u n d er P.D. 1529?
A: Sec. 70 o f P resid en tial D ecree No. 1529 otherwise
known as the P ro p erty R e g istra tio n D ecree provides for
the requirements for the filing and cancellation of adverse
claim
“Sec. 7 0 . A dverse claim . — Whoever claim s any
part or in terest in registered land adverse to th e
registered owner, arising subsequent to th e date o f
th e original registration, m ay, if no other provision
is m ade in th is decree for registering th e sam e, m ake
a sta tem en t in writing se ttin g forth fully his alleged
272 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

right or in terest, and how or under whom acquired,

a reference to th e num ber o f certifica tes or title o f
th e registered owner, and a description o f th e land in
w h ich th e right or in terest is claim ed.
“The sta tem en t shall be signed and sworn to,
and shall sta te the adverse claim ant’s residence, and
a place at w hich all n o tic e s m ay be served upon him .
This sta tem en t shall be en titled to registration as an
adverse claim on th e certificate o f title . The adverse
claim shall be effective for a period o f th irty days
from th e date o f registration. After th e lapse o f th e
said period, th e annotation o f adverse claim m ay be
cancelled upon filing o f a verified p etition therefore
by th e party in interest: Provided, however, That
after cancellation, no secon d adverse claim based
on th e sam e ground shall be registered by th e sam e
claim ant.
"Before th e lapse o f thirty days aforesaid, any
party in in terest m ay file a p etition in th e Court
o f First Instan ce where th e land is situ ated for th e
can cellation o f th e adverse claim , and th e court
shall grant a speedy hearing upon th e q u estion o f
th e validity o f such adverse claim , and shall render
judgm ent as m ay be ju st and equitable. If th e adverse
claim is adjudged to be invalid, th e registration
th ereof shall be ordered cancelled. If, in any case,
th e court, after n otice and hearing shall find th at th e
adverse claim s th u s registered was frivolous, it m ay
fine th e claim ant in th e am ount n ot le s s than one
thousand p esos, nor m ore than five thousand pesos,
in its discretion. Before th e lapse o f th irty days, th e
claim ant m ay withdraw h is adverse claim by filing
w ith the R egister o f D eeds a sworn p etition to th at
e ffe c t.” (Em phasis ours[.])

COMMENTS
Q: Who m ay file an adverse claim ?
A: Under the above cited provision of law “Whoever
claims any part or interest in registered land adverse to
the registered owner, arising subsequent to the date of the
original registration, may, if no other provision is made in
this decree for registering the same:
 CHAPTER V 273
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
1) Make a statement in writing setting forth fully his
alleged right or interest;
2) State how or under whom acquired;
3) A reference to the number of certificates or title of
the registered owner; and
4) A description of the land in which the right or
interest is claimed.
Q: W hat are th e c o n te n ts o f adverse claim ?
A: The statement shall be signed and sworn to, and shall
state the adverse claimant’s residence, and a place at which
all notices may be served upon him. This statement shall be
entitled to registration as an adverse claim on the certificate
of title.
Q: W hat is th e period o f effectiv ity o f adverse claim ?
A: The adverse claim shall be effective for a period of
30 days from the date of registration. After the lapse of
the said period, the annotation of adverse claim may be
cancelled upon filing of a verified petition therefore by the
party in interest.
Q: Is th e filing o f a second adverse claim allow ed?
A: No, by express provision of the above-cited provision law
that, “Provided, however, that after cancellation, no second
adverse claim based on the same ground shall be registered
by the same claimant."
Q: W hat is th e rem edy before th e lapse of th e 30 days
period o f effectivity o f th e adverse claim ?
A: Under the above-cited provision of law, “Before the lapse
of thirty days aforesaid, any party in interest may file a petition
in the Court o f First Instance where the land is situated for
the cancellation of the adverse claim, and the court shall grant
a speedy hearing upon the question o f the validity o f such
adverse claim, and shall render judgment as may be just and
equitable.”
274 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Q: W hat are th e effects if adverse claim is declared

invalid?
A: If the adverse claim is adjudged to be invalid by the
court, it shall have the following effects:
1) The registration thereof shall be ordered cancelled;
2) If, in any case, the court, after notice and hearing
shall find that the adverse claims thus registered was
frivolous, it may fine the claimant in the amount not less
them P I,000.00, nor more them P5.000.00, in its discretion.
Q: W hat is th e classic exam ple o f frivolous adverse
claim ?
A: Contingent, expectant emd inchoate hereditary rights
axe example of frivolous adverse cleiim.

Case Law:

In this case, the tried court relied on the ruling of the

Court of Appeals that the contingent, expectant and inchoate
hereditary rights of the children of a living peLrent do not
constitute em adverse cleum during his lifetime which could
be annotated on the titles covering the parent’s land. (Diaz
vs. Santos Diaz, CA 54 O.G. 8082) That is an illustration of a
frivolous or vexatious adverse claim. (Teresita Rosal Arrazola,
vs. Pedro A. Bemas and Soledad Vernas Alivio, G.R. No.
L-29740, November 10, 1978)
Q: W hat is th e rem edy o f th e claim an t before th e lapse
of th e 30 days period?
A: Before the lapse of 30 days, the claimant may withdraw
his adverse claim by filing with the Register of Deeds a sworn
petition to that effect.
Q: Can th e Land R eg istratio n C ourt rule on th e
d eclaratio n o f n u llity o f deed o f sale in a p e titio n for
can cellatio n o f adverse claim ?
A: No, Land Registration Court cannot rule on the declaration
of nullity of deed of sale in a petition for cancellation of adverse
claim since it is beyond its jurisdiction.
 CHAPTER V 275
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

The issue of jurisdiction, raised in the last assignment

of error, is decisive of this case. The appellant contends that
the court below, acting as a land registration court, erred in
ruling on the nullity of the deed of sale in his favor and thereby
deciding the question of ownership of the lots subject thereof,
a question which was cognizable only by the Court of First
Instance in an ordinary civil action. On the other hand, the
appellees maintain that the said court acted in accordance
with the provision of Section 110 of Act 496.
It is to be noted that in their petition the appellees not
only asked the lower court to cancel the adverse claim of the
appellant but also asked that they be declared the lawful
purchasers of Lots Nos. 166-B, 167-A, and 1/7 of Lot No. 1691
by virtue of the deed of sale which was executed in their favor
on April 5, 1963 by the attorney-in-fact of the former owner,
and registered on June 7, 1963. In opposition, the appellant
claimed ownership of the same lots by virtue of the sale
effected in his favor on April 6, 1963 by another attorney-in-
fact of the former owner, which sale was registered as adverse
claim on April 16, 1963. It is, therefore, evident that the real
issue in this case is not only the validity of the adverse claim
for purpose of determining whether it should be cancelled
or allowed to remain as an annotation on the titles, but in
reality one of ownership, and involves other corollaiy issues,
namely, the validity of a sale under a supposed general power-
of-attorney with authority to sell, as well as the conflict of
rights between two different vendees of the same properties.
These issues are beyond the jurisdiction of a land registration
court acting on a petition filed under Section 110 of the Land
Registration Act. “Questions which involve the ownership of
the litigated lands are not within the province of a court of
land registration. These properly pertain to the court acting
under their ordinary civil jurisdiction.” The reason is obvious:
the proceedings provided in the Land Registration Act being
summary in nature, they Eire inadequate for the litigation of
issues properly pertaining to civil actions. (In Re: Petition For
Cancellation of Adverse Claims on Transfer Certificates o f Title
276 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Nos. 4631, 4630 and 3649 Over Lots Nos. 166-B, 167-A and
1691, Respectively, Ormoc Cadastre, Office of the Register of
Deeds, Ormoc City, Teotimo T. Tomada and Rosalia Tan vs.
Rodolfo T. Tomada, G.R. No. L-21887, July 30, 1969)

S ample Legal F orm No. 1; Affidavit or Adverse C laim.

— ■ ' .
' ' ............ ........................... .. " . . . .

REPUBLIC OF THE PHILIPPINES)

IN THE CITY OF MANILA ) S.S.

AFFIDAVIT OF ADVERSE CLAIM

WE, LEOPOLDO P. CORRAL, MARITESS CORRAL,

EVELYN CORRAL-ONDILLO, ALMA CORRAL-BORBE, all
of legal ages, Filipino citizens, single/m arried, with postal
address a t M inanga Isabela, Echague Isabela, Sta. Cruz St.,
Paracale, C am arines Norte, respectively, after having duly
sworn to in accordance with law do hereby depose and say:

1. That we are some of the surviving heirs of SOTERO

CORRAL m arried to CATALINA ABLES SANCHA-CORRAL,
and who were both deceased;

2. That said Sotero Corral and C atalina Abies Sancha

Corral were blessed with ten (10) children namely, Rosario
Corral-Bergonio, Ingracia Corral Rodriguez, Josefina
Corral-Clores, Dolores Corral, Jo se Corral, Ritzm an Corral,
Robinson Corral, Dom inador Corral, Salvador Corral and
Angel Corral;

3. T hat all of th e above-nam ed children of Sotero

C orral a n d C atalin a Abies S a n c h a C orral were already
deceased, an d were survived by th eir children as reflected
in o u r family tree/geneology w hich is hereto a tta c h e d for
y our ready reference;

4. That said SOTERO CORRAL left some properties

and one of which is Lot 2 8 4 7 , covered by CAD 7 6 9 located
a t Brgy. Panim ian Caram oan, C am arines S u r with a total
land area of 334,870 square m eters;

5. That ou r said grandfather, SOTERO CORRAL

had been in possession and the rightful owner of the
 CHAPTER V 277
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

said property above-m entioned, an d have it surveyed and

registered in his nam e a s appearing on the records of the
Com m unity Environm ent and N atural Resources Office of
the D epartm ent of Environm ent and N atural Resources
(DENR) of C am arines Sur;

6. T hat lately upon verification of with the B ureau of

Lands, Com m unity Environm ent and N atural Resources
Office of the D epartm ent of Environm ent and N atural
Resources (DENR) of C am arines S u r th a t a certain Victor
Abion is applying for a bid to g rant a Survey Authority to
subdivide the above-m entioned lot preparatory for land
titling in his nam e, even though he knew very fully well
th a t there are a lot of surviving heirs of deceased Sotero
Corral, and he is not in any way not related to ou r deceased
grandfather;
7. T hat we also obtained a Waiver of Rights from the
above-nam ed governm ent office executed by our cousins
nam ely Hilda C. Rodriguez-Racelis, Jo b Corral Rodriguez
Jr., and David Corral Rodriguez (all children of our deceased
au n tie Ingracia Corral-Rodriguez) waiving their alleged
rights in favor of the said Victor Abion over a su b stan tial
portion of the said Lot 2847, Cad. 769-D with a total land
a re a of 14, 182 sq. m., w ithout any consent from u s, neither
it is the subject of proper partition by us;
8. T hat as com pulsory heirs of deceased Sotero
Corral and being co-owners of Lot 2847, Cad. 769, we are
vehem ently registering ou r continuing objection on the said
attem pt of Victor Abion or any other person to register the
subject portion of the lot in his nam e, and to record our
adverse claim on the property being claimed by the said
p e rs o n /s before your good office;

9. That we respectfully pray before this Honorable

Office th a t any application for subdivision a n d titling of
Victor Abion be denied, an d our objection a n d adverse claim
be registered in your records based on the above reasons.

IM WITNESS WHEREOF, we have hereunto affixed our

signatures on t h i s _____ day of J u n e 2016, in the City of
Manila.
278 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

LEQPQLPO P..-CORRAL MARITE88 CORRAL

EVELYN CORRAL-ONDILLO ALMA CORRAL-BORBE

SUBSCRIBED AND SWORN to before me this

_______ day of J u n e 2015, in th e C ity of M anila,
affiant exhibited to me their SSS/D river’s License
I.D. No. __________________ , ,
____________________ , _____________________ _ issued at

on

NOTARY PUBLIC

DOC. N O .____ ;
PAGE N O .____ ;
BOOK N O .____ 5
SERIES OF 2 0 1 6

D III. VOLUNTARY ARBITRATION (R.A. No. 876)/

I ALTERNATIVE DISPUTE RESOLUTION (R.A. No. 9285) *2

Q: W hat is A rbitration?
A: A rbitration is a mode of settling disputes between
parties. Like many alternative dispute resolution processes,
it is a product of the meeting of minds of parties submitting a
pre-defined set of disputes. They agree among themselves to a
process of dispute resolution that avoids extended litigation.
The state adopts a policy in favor of arbitration under Sec.
2 of Republic Act No. 9285. (Bases Conversion Development
Authority vs. DMCI Project Developers, Inc., G.R. No. 173170;
North Luzon Railways Corporation vs. DMCI Project Developers,
Inc., G.R. No. 173137, January 11, 2016)
 CHAPTER V 279
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Q: W hat is A lternative D ispute R esolution?
A: "A lternative D ispute R esolution S ystem ” means any
process or procedure used to resolve a dispute or controversy,
other than by adjudication of a presiding judge of a court
or an officer of a government agency, as defined in this Act,
in which a neutral third party participates to assist in the
resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or any
combination thereof. (Sec. 3[a] of RA 9285)

Q: W hat Law s/Rule Shall Govern A rbitration

Proceedings?
A: Arbitration proceedings shall be governed by the following
laws and rules, to wit:
1) Act No. 876 otherwise known as “An Act to Authorize
the Making of Arbitration and Submission Agreements, to
Provide for the Appointment of Arbitrators and the Procedure
for Arbitration in Civil Controversies, and For Other Purposes”;
2) Republic Act No. 9285, otherwise known as “An
Act to Institutionalize the Use of an Alternative Dispute
Resolution System in the Philippines and to Establish the
Office for Alternative Dispute Resolution, and for Other
Purposes,” April 2, 2004;3
3) A.M. No. 07-11-08-SC otherwise known as the
“Special Rules of Court on Alternative Dispute Resolution
(referred herein as Special ADR Rules)”.

Q: W hat is th e n a tu re o f A rbitration P roceedings?

A: Arbitration is deemed a special proceeding and governed
by the special provisions of RA 9285, its IRR, and the Special
ADR Rules. (RA 9285)

l^^ase^L aw ^jj

Arbitration is deemed a special proceeding and governed

by the special provisions of Republic Act No. 9285, its IRR,
280 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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and the Special ADR Rules. Republic Act No. 9285 is the
general law applicable to all matters and controversies to
be resolved through alternative dispute resolution methods.
While enacted only in 2004, the court held that Republic Act
No. 9285 applies to pending arbitration proceedings since it
is a procedural law, which has retroactive effect. As a general
rule, the retroactive application of procedural laws does not
violate any personal rights because no vested right has yet
attached nor arisen from them. (Department of Foreign Affairs
vs. BCA International Corporation, G.R. No. 210858, June 29,
2016)
Q: W hat is th e special feature of arb itratio n ?
A: A pivotal feature of arbitration as an alternative mode of
dispute resolution is that it is, first and foremost, a product of
party autonomy or the freedom of the parties to “make their
own arrangements to resolve their own disputes.”

Case Law: fl

A pivotal feature of arbitration as an alternative mode of

dispute resolution is that it is, first and foremost, a product of
party autonomy or the freedom of the parties to “make their
own arrangements to resolve their own disputes.” Arbitration
agreements manifest not only the desire of the parties in
conflict for an expeditious resolution of their dispute. They
also represent, if not more so, the parties’ mutual aspiration
to achieve such resolution outside of judicial auspices, in a
more informal and less antagonistic environment under the
terms of their choosing. Needless to state, this critical feature
can never be satisfied in an ejectment case no matter how
summaiy it may be. (Koppel, Inc. [Formerly known as KPL
Aircon, Inc.] vs. Makati Rotary Club Foundation, Inc., G.R. No.
198075, September 4, 2013)

Q: W hat is deliberative process privilege?

A: The deliberative process privilege is closely related to
the presidential communications privilege and protects the
public disclosure of information that can compromise the
quality of agency decisions.
 CHAPTER V 281
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

Case Law:

Republic Act No. 9285, its IRR, and the Special ADR Rules
provide that any party to an arbitration, whether domestic
or foreign, may request the court to provide assistance
in taking evidence such as the issuance of subpoena ad
testificandum and subpoena duces tecum. The Special ADR
Rules specifically provide that they shall apply to assistance
in taking evidence, and the RTC order granting assistance
in taking evidence shall be immediately executory and not
subject to reconsideration or appeal. An appeal with the Court
of Appeals is only possible where the RTC denied a petition
for assistance in taking evidence. An appeal to the Supreme
Court from the Court of Appeals is allowed only under any
of the grounds specified in the Special ADR Rules. The court
ruled that the DFA failed to follow the procedure and the
hierarchy of courts provided in Republic Act No. 9285, its
IRR, and the Special ADR Rules, when DFA directly appealed
before this Court the RTC Resolution and Orders granting
assistance in taking evidence.
The 1976 UNCITRAL Arbitration Rules, agreed upon by
the parties to govern them, state that the “arbitral tribunal
shall apply the law designated by the parties as applicable
to the substance of the dispute. Failing such designation
by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers
applicable.” Established in this jurisdiction is the rule that
the law of the place where the contract is made governs, or
lex loci contractus. Since there is no law designated by the
parties as applicable and the Agreement was perfected in the
Philippines, “The Arbitration Law,” or Republic Act No. 876,
applies.
The Court ruled that the constitutional right to information
includes official information on ongoing negotiations before
a final contract. The information, however, m ust constitute
definite propositions by the government and should not cover
recognized exceptions like privileged information, military
and diplomatic secrets and similar matters affecting national
security and public order. D eliberative process privilege is
282 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

one kind of privileged inform ation, w hich is w ithin th e

exceptions o f th e c o n stitu tio n al rig h t to inform ation.
The deliberative process privilege can also be invoked
in arbitration proceedings under Republic Act No. 9285.
Under Republic Act No. 9285, orders of an arbitral tribunal
are appealable to the courts. This disclosure of privileged
information can inhibit a public official from expressing his
or her candid opinion. Accordingly, a proceeding in the arbitral
tribunal does not prevent the possibility of the purpose of the
privilege being defeated, if it is not allowed to be invoked. In
the same manner, the disclosure of an information covered
by the deliberative process privilege to a court arbitrator will
defeat the policy bases and purpose of the privilege.
DFA did not waive the privilege in arbitration proceedings
under the Agreement. The Agreement does not provide for
the waiver of the deliberative process privilege by DFA.
There is a public policy involved in a claim of deliberative
process privilege “the policy of open, frank discussion
between subordinate and chief concerning administrative
action.” Thus, the deliberative process privilege cannot be
waived. The deliberative process privilege is closely related to
the presidential communications privilege and protects the
public disclosure of information that can compromise the
quality of agency decisions. The case was remanded to RTC
to determine whether the documents and records sought
to be subpoenaed are protected by the deliberative process
privilege as explained in the Decision. (Department o f Foreign
Affairs vs. BCA International Corporation, G.R. No. 210858,
June 29, 2016)
Q: W hat is th e purpose o f th e Special Rules on A lternative
D ispute R esolution (ADR)?
A: It shall govern the procedure to be followed by the courts
whenever judicial intervention is sought in ADR proceedings
in the specific cases where it is allowed.

Republic Act No. 9285, otherwise known as the

“Alternative Dispute Resolution Act of2004,” institutionalized
 CHAPTER V 283
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
the use of an Alternative Dispute Resolution System (ADR
System) in the Philippines. The Act, however, was without
prejudice to the adoption by the Supreme Court of any ADR
system as a means of achieving speedy and efficient means of
resolving cases pending before ail courts in the Philippines.
Accordingly, A.M. No. 07-11-08-SC was created setting forth
the Special Rules of Court on Alternative Dispute Resolution
(referred herein as Special ADR Rules) that shall govern the
procedure to be followed by the courts whenever judicial
intervention is sought in ADR proceedings in the specific
cases where it is allowed. (Department o f Environment and
Natural Resources [DENR] vs. United Planners Consultants,
Inc. [UPCI], G.R. No. 212081, February 23, 2015)

1. Persons an d M atters o f A rbitration:

Q: Who m ay sub m it th e m a tte rs in issue to arb itratio n ?

A: Sec. 2 o f Act No. 87 6 otherwise known as An Act to
A uthorize th e M aking o f A rbitration and Subm ission
A greem ents, to Provide for th e A ppointm ent of A rbitrators
and th e P rocedure for A rbitration in Civil C ontroversies,
and for O ther Purposes provides for the rule on the persons
and matter can be submitted for arbitration. It states that:
“Sec. 2. Persona a n d m a tters subject to
arbitration . — Two or more persons or parties may
submit to the arbitration of one or more arbitrators
any controversy existing between them at the time
of the submission and which may be the subject of
an action, or the parties to any contract may in such
contract agree to settle by arbitration a controversy
thereafter arising between them. Such submission or
contract shall be valid, enforceable and irrevocable,
save upon such grounds as exist at law for the
revocation of any contract.
Such submission or contract may include
question arising out of valuations, appraisals or other
controversies which may be collateral, incidental,
precedent or subsequent to any issue between the
parties.
284 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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A controversy cannot be arbitrated where one

of the parties to the controversy is an infant, or a
person judicially declared to be incompetent, unless
the appropriate court having jurisdiction approve a
petition for permission to submit such controversy to
arbitration made by the general guardian or guardian
ad litem of the infant or of the incompetent.
But where a person capable of entering into a
submission or contract has knowingly entered into
the same with a person incapable of so doing, the
objection on the ground of incapacity can be taken
only in behalf of the person so incapacitated.”

COMMENTS
Q: May th e p arties subm it th e m a tters in controversy to
arbitratio n ?
A: Yes, the above provision of law specifically provides that,
“Two or more persons or parties may submit to the arbitration
of one or more arbitrators any controversy existing between
them at the time of the submission and which may be the
subject of an action, or the parties to any contract may in such
contract agree to settle by arbitration a controversy thereafter
arising between them. *

Q: May th e p arties stip u late in th e C ontract of Lease

th a t th e case be subject to arb itratio n ?
A: Yes, Lease Contract that stipulates that “any
disagreement” as to the “interpretation, application or
execution” is ought to be submitted to arbitration.

Case Law:

It is from petitioner’s apparent breach of the 2005 Lease

Contract that respondent filed the instant unlawful detainer
action. The arbitration clause of the 2005 Lease Contract
stipulates that “any disagreement” as to the “interpretation,
application or execution” of the 2005 Lease Contract ought
to be submitted to arbitration. To the mind of the Court,
such stipulation is clear and is comprehensive enough so as
 CHAPTER V 285
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
to include virtually any kind of conflict or dispute that may
arise from the 2005 Lease Contract including the one that
presently besets petitioner and respondent.
Petitioner may still invoke the arbitration clause of the
2005 Lease Contract notwithstanding the fact that it assails
the validity of such contract. This is due to the doctrine of
separability. Under the doctrine o f separability, an arbitration
agreement is considered as independent of the main contract.
Being a separate contract in itself, the arbitration agreement
may thus be invoked regardless of the possible nullity or
invalidity of the main contract. (Koppel, Inc. /Formerly known
as KPL Aircon, Inc.], vs. Makati Rotary Club Foundation, Inc.,
G.R. No. 198075, September 4, 2013)
Q: W hat is th e effect o f th e c o n tra c t or subm ission of
th e case to arb itra tio n ?
A: The above provision of law also provides that, “Such
submission or contract shall be valid, enforceable and
irrevocable, save upon such grounds as exist at law for the
revocation o f any contract. ”
Q: W hat are th e m a tte rs included in th e coverage of th e
c o n tra c t?
A: The above-cited provision of law states that such
submission or contract may include question arising out of:
1) Valuations;
2) Appraisals; or
3) Other controversies which may be collateral,
incidental, precedent or subsequent to any issue between
the parties.
Q: Who are disqualified to sub m it th e case to arb itra tio n ?
E xceptions?
A: A controversy cannot be arbitrated where one of the
parties to the controversy is:
1) An infant; or
2) A person judicially declared to be incompetent.
286 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Q: What is th e exception?
A: Unless the appropriate court having jurisdiction approve
a petition for permission to submit such controversy to arbi­
tration made by the general guardian or guardian ad litem of
the infant or of the incompetent.

Q: What is th e effect if th e contract is entered into by

an incapacitated person?
A: The above law provides that, “But where a person capable
of entering into a submission or contract has knowingly entered
into the same with a person incapable of so doing, the objection
on the ground of incapacity can be taken only in behalf of the
person so incapacitated. ”

2. Form of A rbitration Agreement:

Q: What is th e form of arbitration agreem ent?

A: Sec. 4 of Act No. 876 provides for the rule on the form
of an arbitration agreement. It states that:
“Sec. 4. Form o f arbitration agreement. — A
contract to arbitrate a controversy thereafter arising
between the parties, as well as a subm ission to
arbitrate an existing controversy shall be in writing
and subscribed by the party sought to be charged, or
by his lawful agent.
The making of a contract or subm ission for ar­
bitration described in section two hereof, providing
for arbitration o f any controversy, shall be deemed a
consent o f the parties to the jurisdiction o f the Court
of First Instance of the province or city where any of
the parties resides, to enforce such contract or sub­
m ission.”
COMMENTS
Q: What is th e form of an arbitration agreem ent?
A: A contract to arbitrate a controversy thereafter arising
between the parties, as well as a submission to arbitrate an
existing controversy shall be in writing and subscribed by the
party sought to be charged, or by his lawful agent.
 CHAPTER V 287
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Q: W hat is th e effect o f th e arb itra tio n ag reem en t to th e
p artie s?
A: The making of a contract or submission for arbitration
described in Section two hereof, providing for arbitration of
any controversy, shall be deemed a consent of the parties to
the jurisdiction o f the Court o f First Instance o f the province or
city where any of the parties resides, to enforce such contract
or submission.

3. P relim inary Procedure:

Q: W hat are th e p ro ced u res for th e in s titu tio n o f an

arb itra tio n proceedings?
A: Sec. 5 o f Act No. 87 6 provides for the rule on the
procedure for the institution of arbitration proceeding. It
states that:
“Sec. 5. Prelim inary procedure. — An arbitration
shall be in stitu ted by:
(a) In th e case o f a contract to arbitrate future
controversies by th e service by either party upon
th e other o f a dem and for arbitration in accordance
w ith th e contract. Such dem and shall be se t forth th e
nature o f th e controversy, th e am ount involved, if
any, and th e relief sought, togeth er w ith a true copy
o f th e contract providing for arbitration. The dem and
shall be served upon any party eith er in person or
by registered m ail. In th e even t th at th e contract
betw een th e parties provides for th e appointm ent o f
a sin gle arbitrator, th e dem and shall be s e t forth a
sp ecific tim e w ithin w hich th e parties shall agree upon
su ch arbitrator. If th e con tract betw een th e parties
provides for th e appointm ent o f three arbitrators, one
to be se le c te d by each party, th e dem and shall nam e
th e arbitrator appointed by th e party m aking the
demand; and shall require th a t th e party upon whom
th e dem and is m ade shall w ithin fifteen days after
receipt th ereo f advise in w riting th e party m aking
such dem and o f th e nam e o f th e person appointed
by th e secon d party; su ch n o tice shall require th at
th e two arbitrators so appointed m ust agree upon th e
third arbitrator w ithin ten days from th e date o f such
n otice.
288 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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(b) In th e event that one party defaults in

answering the demand, the aggrieved party may file
with the Clerk of the Court o f First Instance having
jurisdiction over th e parties, a copy o f the demand
for arbitration under the contract to arbitrate, with a
notice that the original demand was sent by registered
mail or delivered in person to the party against whom
the claim is asserted. Such demand shall set forth the
nature of the controversy, the am ount involved, if any,
and the relief sought, and shall be accompanied by a
true copy of the contract providing for arbitration.
(c) In the case o f the subm ission of an existing
controversy by the filing with the Clerk o f the
Court of First Instance having jurisdiction, of the
subm ission agreem ent, settin g forth the nature o f the
controversy, and th e am ount involved, if any. Such
subm ission may be filed by any party and shall be
duly executed by both parties.
(d) In the event that one party neglects, fails
or refuses to arbitrate under a subm ission agreem ent,
the aggrieved party shall follow the procedure pre­
scribed in subparagraphs (a) and (b) o f th is section .”

COMMENTS
Q: W hat are t h e p ro ced u res t o b e o b serv ed for th e
in s titu tio n o f an arb itra tio n ?
A: Under the above provision of law, an arbitration shall be
instituted in the following manner, to wit:

a) In c a s e o f c o n tr a c t t o arb itrate o f fu tu re
c o n tr o v e r s ie s u p o n d em an d b y a n y party: *1

(a) In the case of a contract to arbitrate future

controversies by the service by either party upon the other
of a demand for arbitration in accordance with the contract,
subject to the following procedures, to wit:
1) Such demand shall be set forth the nature of
the controversy, the amount involved, if any, and the
relief sought, together with a true copy of the contract
providing for arbitration;
 CHAPTER V 289
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
2) The demand shall be served upon any party
either in person or by registered mail;
3) In the event that the contract between the parties
provides for the appointment of a single arbitrator, the
demand shall be set forth a specific time within which
the parties shall agree upon such arbitrator;
4) If the contract between the parties provides for
the appointment of three arbitrators, one to be selected
by each party, the demand shall name the arbitrator
appointed by the party making the demand; and
5) It shall require that the party upon whom the
demand is made shall within fifteen days after receipt
thereof advise in writing the party making such demand
of the name of the person appointed by the second party;
such notice shall require that the two arbitrators so
appointed must agree upon the third arbitrator within
ten days from the date of such notice.

b) In case one p arty d efaulted in

(b) In the event that one party default in answering the

demand, the aggrieved party may:
1) File with the Clerk of the Court of First Instance
having jurisdiction over the parties, a copy of the demand
for arbitration under the contract to arbitrate, with a
notice that the original demand was sent by registered
mail or delivered in person to the party against whom
the claim is asserted.
2) Such demand shall set forth the nature of the
controversy, the amount involved, if any, and the relief
sought, and shall be accompanied by a true copy of the
contract providing for arbitration.

Court:
(c)
3
c) Filing o f th e subm ission ag reem ent to th e Clerk

In the case of the submission of an existing

controversy by:
290 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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1) The filing with the Clerk of the Court of

First Instance having jurisdiction, of the submission
agreement, setting forth the nature of the controversy,
and the amount involved, if any.
2) Such submission may be filed by any party and
shall be duly executed by both parties.

d) In case one party o f neglects, fails or refuses

t o arbitrate:

(d) In the event that one party neglects, fails or refuses

to arbitrate under a submission agreement, the aggrieved
party shall follow the procedure prescribed in subparagraphs
(a) and (b) of this section.

4. Hearing by Court:

Q: W hat is th e rem edy in case of failure, neglect, or

refusal of one party to arb itrate?
A: Sec. 6 of Act No. 876 provides for the remedy of the
person in case the other party refuses or neglect to arbitrate.
It states that:
“Sec. 6. Hearing by court. — A party aggrieved
by th e failure, n eglect or refusal o f another to
perform under an agreem ent in writing providing
for arbitration may p etition th e court for an order
directing th at such arbitration proceed in th e manner
provided for in such agreem ent. Five days n otice in
writing o f th e hearing o f such application shall be
served either personally or by registered m ail upon
th e party in default. The court shall hear th e parties,
and upon being satisfied th at th e m aking o f th e
agreem ent or such failure to com ply therew ith is not
in issu e, shall m ake an order directing th e parties to
proceed to arbitration in accordance with the term s
o f th e agreem ent. If th e m aking o f th e agreem ent
or default be in issu e th e court shall proceed to
sum m arily hear such issu e. If th e finding be that no
agreem ent in writing providing for arbitration was
m ade, or that there is no default in th e proceeding
 CHAPTER V 291
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
thereunder, the proceeding shall be dism issed. If th e
finding be th at a w ritten provision for arbitration was
m ade and there is a default in proceeding thereunder,
an order shall be made sum m arily directing th e
parties to proceed w ith the arbitration in accordance
w ith th e term s thereof.
The court shall decide all m otions, p etition s or
applications filed under th e provisions o f th is Act,
w ithin ten days after such m otions, p etition s, or
applications have been heard by it.”

COMMENTS
Q: W hat is th e rem edy of a p arty in case of failure or
refusal of th e o th er p arty to arb itrate?
A: A party aggrieved by the failure, neglect or refusal of
another to perform under an agreement in writing providing
for arbitration may petition the court for an order directing
that such arbitration proceed in the manner provided for in
such agreement.
Q: What is th e d uty o f th e aggrieved party?
A: Five days notice in writing of the hearing of such
application shall be served either personally or by registered
mail upon the party in default.
Q: W hat are th e courses of actio n of th e court?
A: The court shall perform the following:
1) Hear the parties;
2) Upon being satisfied that the making of the
agreement or such failure to comply therewith is not in
issue, shall make an order directing the parties to proceed to
arbitration in accordance with the terms of the agreement;34
3) If the making of the agreement or default be in issue
the court shall proceed to summarily hear such issue;
4) If the finding be that no agreement in writing
providing for arbitration was made, or that there is no
default in the proceeding thereunder, the proceeding shall be
dismissed; and
292 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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5) If the finding be that a written provision for

arbitration was made and there is a default in proceeding
thereunder, an order shall be made summarily directing the
parties to proceed with the arbitration in accordance with the
terms thereof.
Q: W hat ia th e scope o f au th o rity of th e co u rt in hearing
th e issu e?
A: The court’s authority only to pass the issue of whether
there is or there is no agreement in writing providing for
arbitration.

|| C ase Law j^

Republic Act No. 876 explicitly confines the court’s

authority only to pass the issue of whether there is or there
is no agreement in writing providing for arbitration. If there
is such agreement, the court shall issue an order summarily
directing the parties to proceed with the arbitration in
accordance with the terms thereof; otherwise, the proceeding
shall be dismissed. (Aboitiz Transport System Corp., et al. vs.
Gothong Lines, Inc., et al., G.R. No. 198228, July 18, 2014)

Q: W hat is th e period to decide?

A: The court shall decide all motions, petitions or
applications filed under the provisions of this Act, within 10
days after such motions, petitions, or applications have been
heard by it.

5. S tay o f Civil Action:

Q: W hat is th e effect o f an arb itratio n agreem ent to a

pending case?
A: It shall stay the action or proceeding until an arbitration
has been had in accordance with the terms of the agreement.
 CHAPTER V 293
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

P rocedural Basis:
3
Sec. 7 o f Act No. 876 provides for the effect of the
existence of an arbitration on a pending civil action. It states
that:
“Sec. 7. S ta y o f civil action. — If any su it or
proceeding be brought upon an issu e arising ou t o f an
agreem ent providing for th e arbitration thereof, the
court in w hich such su it or proceeding is pending,
upon being satisfied th at th e issu e involved in such
su it or proceeding is referable to arbitration, shall stay
th e action or proceeding u n til an arbitration has been
had in accordance w ith th e term s o f th e agreem ent:
Provided, That th e applicant, for th e sta y is n ot in
default in proceeding w ith su ch arbitration."

COMMENTS
Q: W hat is th e effect o f th e ex isten ce of an arb itratio n
agreem en t to a pending civil su it?
A: Under the above-cited provision of law, it provides that,
“If any suit or proceeding be brought upon an issue arising
out o f an agreement providing for the arbitration thereof the
court in which such suit or proceeding is pending, upon being
satisfied that the issue involved in such suit or proceeding is
referable to arbitration, sh a ll sta y th e action or proceeding
u n til an arbitration ha s been h ad in accordance w ith the
term s o f th e agreement: Proinded, That the applicant, for the
stay is not in default in proceeding with such arbitration. ”
Q: W hat is th e lim itatio n on th e above rule?
A: That the applicant, for the stay is not in default in
proceeding with such arbitration.”

6. R eferral to A rbitration:

Q: W hen m ay th e co u rt refer th e case for arb itra tio n ?

A: If at least one party so requests not later that the pre-trial
conference, or upon the request of both parties thereafter,
refer the parties to arbitration
294 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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P rocedural Basis:

Sec. 24 o f Republic A ct No. 9285, otherwise known

as An A ct to In stitu tio n aliz e th e Use of an A lternative
D ispute R esolution S ystem in th e P hilippines an d to
E stablish th e Office for A lternative D ispute R esolution,
and for O ther Purposes, April 2, 2 0 04, provides for the rule
on prior referral of the case to arbitration. It states that:
"Sec. 2 4 . R eferral to A rbitration. — A court b e­
fore w hich an action is brought in a m atter w hich is
th e subject m atter o f an arbitration agreem ent shall,
if at lea st one party so requests n ot later th at th e pre­
trial conference, or upon th e request o f both parties
thereafter, refer th e parties to arbitration u n less it
finds th at th e arbitration agreem ent is null and void,
inoperative or incapable o f being perform ed.”

COMMENTS
Q: W hat is th e d u ty o f th e co u rt in case th e re is an
arb itratio n ag reem en t?
A: A court before which an action is brought in a matter
which is the subject matter of an arbitration agreement shall,
if at least one party so requests not later than the pre-trial
conference, or upon the request of both parties thereafter,
refer the parties to arbitration unless it finds that the arbitration
agreement is null and void, inoperative, or incapable of being
performed.

Case Lai

Under Sec. 24, the RTC does not have jurisdiction

over disputes that are properly the subject of arbitration
pursuant to an arbitration clause, and mandates the referral
to arbitration in such cases, thus:
Sec. 24. Referral to Arbitration. — A court before which
an action is brought in a matter which is the subject matter
 CHAPTER V 295
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
of an arbitration agreement shall, if at least one party so
requests not later than the pre-trial conference, or upon
the request of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration agreement is
null and void, inoperative or incapable of being performed.
(Korea Technologies Co. Ltd. vs. Hon. Alberto A. Lerma, G.R.
No. 143581, January 7, 2008)

Q: W hat is th e n atu re o f th e a c t o f filing a req u est to

a rb itra te ?
A: The filing of a request to arbitrate is merely directory.

Case Law:

The operation of the arbitration clause in this case is

not at all defeated by the failure of the petitioner to file a
formal “request” or application therefor with the MeTC. The
court held that the filing of a “request” pursuant to Sec. 24
of Republic Act No. 9285 is not the sole means by which an
arbitration clause may be validly invoked in a pending suit.
In using th e word “m ay” to qualify th e a c t o f filin g a
“request,” th e Special ADR R ules clearly did not intend
to lim it th e invocation o f an arbitration agreem ent in
a pending s u it solely via such “r e q u e s t After all, non-
compliance with an arbitration agreement is a valid defense
to any offending suit and, as such, may even be raised in
an answer as provided in our ordinary rules of procedure.
(Koppel, Inc. [Formerly known as KPL Aircon, Inc.] vs. Makati
Rotary Club Foundation, Inc., G.R. No. 198075, September 4,
2013)

Q: Will th e co n d u ct o f Ju d ic ia l D ispute R esolution

ren d er arb itra tio n proceeding nugato ry?
A: No, the mere submission of a dispute to JDR proceedings
would not necessarily render the subsequent conduct of
arbitration a mere surplusage, and it be supplemented by
their resort to arbitration.
296 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Case Law:

The fact that the petitioner and respondent already

underwent through JDR proceedings before the RTC, will
not make the subsequent conduct of arbitration between
the parties unnecessary or circuitous. The JDR system is
substantially different from arbitration proceedings. The
JDR framework is based on the processes of mediation,
conciliation or early neutral evaluation which entails the
submission of a dispute before a “JDR judge” who shall merely
“facilitate settlement” between the parties in conflict or make
a “non-binding evaluation or assess-ment of the chances of
each party’s case.” Thus in JDR, the JDR judge lacks the
authority to render a resolution of the dispute that is binding
upon the parties in conflict. In arbitration, on the other hand,
the dispute is submitted to an arbitrator/s—a neutral third
person or a group of thereof—who shall have the authority to
render a resolution binding upon the parties.
Clearly, the mere submission of a dispute to JDR
proceedings would not necessarily render the subsequent
conduct of arbitration a mere surplusage. The failure of the
parties in conflict to reach an amicable settlement before
the JDR may, in fact, be supplemented by their resort to
arbitration where a binding resolution to the dispute could
finally be achieved. This situation precisely finds application
to the case at bench. (Koppel, Inc. (Formerly known as KPL
Aircon, Inc.] us. Makati Rotary Club Foundation, Inc., G.R. No.
198075, September 4, 2013)

||^ 7 ^ I n t e ^ r e t ^ t o n ^ o f t h e ^ c t |^

Q: How will th e provision of law be co n stru ed ?

A: It shall be construed in favor of arbitration.

P rocedural Basis:

Sec. 25 o f Republic Act No. 9 2 8 5 provides for the rule

on interpretation on the provision of the Act. It states that:
 CHAPTER V 297
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
“S ec. 2 5 . In terpretation o f th e Act. — In
interpreting th e Act, th e court shall have due regard
to th e p olicy o f th e law in favor o f arbitration. Where
action is com m enced by or against m ultiple parties,
on e or m ore o f whom are parties who are bound by
th e arbitration agreem ent although th e civ il action
m ay con tin u e as to th o se who are n ot bound by such
arbitration agreem ent.”

COMMENTS
Q: How will th e provision o f th e Act be co n stru ed ?
A: In interpreting the Act, the court shall have due regard
to the policy of the law in favor of arbitration.

Case Law:

There are authorities which favour “the more intelligent

view that arbitration, as an inexpensive, speedy and amicable
method of settling disputes, and as a means of avoiding
litigation, should receive every encouragement from the
courts which may be extended without contravening sound
public policy or settled law” (3 Am. Jur., p. 835). In view of
the court’s policy to adopt arbitration as a manner of settling
disputes, arbitration clauses are liberally construed to favour
arbitration. Consistent with the above-mentioned policy of
encouraging alternative dispute resolution methods, courts
should liberally construe arbitration clauses. Provided such
clause is susceptible of an interpretation that covers the
asserted dispute, an order to arbitrate should be granted. Any
doubt should be resolved in favour of arbitration in relation
to Secs. 2 and 25 of Republic Act No. 9285.
If there is an interpretation that would render effective
an arbitration clause for purposes of avoiding litigation and
expediting resolution of the dispute, that interpretation shall
be adopted. (Gerardo Lanuza, Jr. and Antonio O. Olbes vs.
BF Corporation, Shangri-La Properties, Inc., Alfredo C. Ramos,
Rufo B. Colayco, Maximo G. Licauco III, and Benjamin C.
Ramos, G.R. No. 174938, October 1, 2014)
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Q: W hat is th e rule in case th e re are m ultiple p artie s

involved?
A: Where action is commenced by or against multiple
parties, one or more of whom are parties who are bound
by the arbitration agreement although the civil action may
continue as to those who are not bound by such arbitration
agreement.
Q: W hat is th e scope o f th e ap p licatio n o f th e arb itratio n
clause?
A: Agreements are deemed part of or a continuation of the
Joint Venture Agreement. The arbitration clause should extend
to all the agreements and its parties since it is still consistent
with all the terms and conditions of the amendments and
supplements.

Case Law:

Consistent with the above-mentioned policy of

encouraging alternative dispute resolution methods,
courts should liberally construe arbitration clauses under
Sec. 25 of Republic Act No. 9285. Provided such clause is
susceptible of an interpretation that covers the asserted
dispute, an order to arbitrate should be granted. Any doubt
should be resolved in favor of arbitration.
There is no rule that a contract should be contained in a
single document. A whole contract may be contained in several
documents that are consistent with one other. Amendments or
supplements to the agreement may be executed by contracting
parties to address the circumstances or issues that arise
while a contract subsists. The old provisions shall be deemed
to have lost their force and effect, while the changes shall be
deemed to have taken effect. Provisions that are not affected
by the changes usually remain effective. When a contract is
supplemented, new provisions that are not inconsistent with
the old provisions are added. The nature, scope, and terms
and conditions are expanded. In that case, the old and the
new provisions form part of the contract.
A reading of all the documents of agreement shows that
they were executed by the same parties. Initially, the Joint
 CHAPTER V 299
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Venture Agreement was executed only by BCDA, PNR, and the
foreign corporations. D.M. Consunji, Inc. and/or its nominee
were deemed to have been also a party to the original Joint
Venture Agreement executed by BCDA, PNR, and the foreign
corporations. D.M. Consunji, Inc. and/or its nominee became
bound to the terms of both the Joint Venture Agreement and
its amendment. The Joint Venture Agreement, the amended
Joint Venture Agreement, and the Memorandum of Agreement
should be treated as one contract because they all form part
of a whole agreement.
Hence, the arbitration clause in the Joint Venture
Agreement should not be interpreted as applicable only to the
Joint Venture Agreement’s original parties. The succeeding
agreements are deemed part of or a continuation of the Joint
Venture Agreement. The arbitration clause should extend to
all the agreements and its parties since it is still consistent
with all the terms and conditions of the amendments and
supplements. (Bases Conversion Development Authority vs.
DMCI Project Developers, Inc., G.R. No. 173170; North Luzon
Railways Corporation vs. DMCI Project Developers, Inc., G.R.
No. 173137, January 11, 2016)

8. Place o f A rbitration:

Q: Where will th e arb itratio n proceedings co n d u cted ?

A: The place of arbitration shall be the place agreed upon by
the parties, or in the absence of agreement in Metro Manila,
unless the court direct otherwise.

P rocedural Basis:

Sec. 30 of Republic Act No. 9285, provides for the rule

on the place of Arbitration. It states that:
“Sec. 3 0 . Place o f A rbitration. — The parties
are free to agree on th e place o f arbitration. Failing
su ch agreem ent, th e place o f arbitration shall be in
Metro Manila, u n less th e arbitral tribunal, having
regard to th e circu m stan ces o f th e case, including th e
con ven ien ce o f th e parties shall decide on a different
place o f arbitration.
300 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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The arbitral tribunal m ay, u n less otherw ise

agreed by th e parties, m eet at any place it consid ers
appropriate for con su ltation am ong its m em bers,
for hearing w itn esses, experts, or th e parties, or for
in sp ection o f goods, other property or d ocu m en ts.”

COMMENTS
Q: W hat are th e rules on th e venue in an arb itratio n
proceedings?
A: The rules on venue of the arbitral proceedings shall be
as follows:
1) The parties are free to agree on the place of
arbitration;
2) Failing such agreement, the place of arbitration
shall be in Metro Manila, unless the arbitral tribunal, having
regard to the circumstances of the case, including the
convenience of the parties shall decide on a different place of
arbitration;
3) The arbitral tribunal may, unless otherwise agreed
by the parties, meet at any place it considers appropriate
for consultation among its members, for hearing witnesses,
experts, or the parties, or for inspection of goods, other
property or documents.

9. C ourt to D ism iss th e Case Involving a C o n struction

D ispute:________________________________________

Q: W hat is th e d u ty o f th e co u rt w hen th e re is a
c o n stru ctio n d isp u te?
A: The court shall refer the case to the Construction
Industry Arbitration Commission for arbitration not later
than pre-trial conference.

P rocedural Basis:

Sec. 39 o f Republic A ct No. 9285, provides for the rule

in case of arbitration in case of construction dispute. It states
that:
 CHAPTER V 301
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
“8 ec. 3 9 . Court to D ism iss Case Involving a
Construction Dispute. — A regional trial court w hich
a con stru ction dispute is filed shall, upon becom ing
aware, n o t later than th e pretrial conference, th at th e
parties had entered in to an arbitration to be conducted
by th e CIAC, u n less both parties, a ssisted by their
resp ective cou n sel, shall subm it to th e regional trial
court a w ritten agreem ent exclu sive for th e Court,
rather th an th e CIAC, to resolve th e d isp u te.”

COMMENTS
Q: W hat is th e rule in case o f co n stru ctio n d isp u te?
A: A Regional Trial Court which a construction dispute is
filed shall, upon becoming aware, not later than the pretrial
conference, that the parties had entered into an arbitration
to be conducted by the CIAC, unless both parties, assisted
by their respective counsel, shall submit to the regional trial
court a written agreement exclusive for the Court, rather than
the CIAC, to resolve the dispute.
Q: Are m otion for reco n sid eratio n or new tria l allowed
u n d er th e CIAC R ules?
A: Motion for reconsideration or new trial under the CIAC
Rules are prohibited.

Case Law:

In the case at bar, the Consultancy Agreement contained

an arbitration clause. Hence, respondent, after it filed
its complaint, moved for its referral to arbitration. By its
referral to arbitration, the case fell within the coverage of the
Special ADR Rules. However, with respect to the arbitration
proceedings itself, the parties had agreed to adopt the CIAC
Rules before the Arbitral Tribunal in accordance with Rule
2.3 of the Special ADR Rules.
Under Sec. 17.2, Rule 17 of the CIAC Rules, no motion
for reconsideration or new trial may be sought, but any of
the parties may file a motion for correction of the final award,
which shall interrupt the running of the period for appeal.
Moreover, the parties may appeal the final award to the Court
302 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

of Appeals through a petition for review under Rule 43 of the

Rules of Court. Records do not show that any of the foregoing
remedies were availed of by petitioner. Instead, it filed the
Motion for Reconsideration of the Arbitral Award, which was
a prohibited pleading under the Sec. 17.2, Rule 17 of the
CLAC Rules, thus rendering the same final and executory.
During the confirmation proceedings, petitioners did not
oppose the RTC’s confirmation by filing a petition to vacate
the Arbitral Award under Rule 11.2(D) of the Special ADR
Rules. Neither did it seek reconsideration of the confirmation
order in accordance with Rule 19.1(h) thereof. Instead,
petitioner filed only a special civil action for certiorari before
the Court of Appeals questioning the propriety of (a) the RTC
Order granting respondent’s motion for issuance of a writ of
execution, and (b) Order denying its motion to quash. Under
Rule 19.26 of the Special ADR Rules, “(w]hen the Regional
Trial Court, in making a ruling under the Special ADR Rules,
has acted without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law, a party may
file a special civil action for certiorari to annul or set aside a
ruling of the Regional Trial Court.” Thus, for failing to avail
of the foregoing remedies before resorting to certiorari, the CA
correctly dismissed its petition. (Department o f Environment
and Natural Resources [DENR] vs. United Planners Consultants,
Inc. [UPCI], G.R. No. 212081, February 23, 2015)

|| 10. Effect o f D eath o f th e PartyTj|

Q: W hat is th e effect o f d eath o f th e p arty to an

arb itra tio n ?
A: Where a party dies after making a submission or a
contract to arbitrate the proceedings may be begun or
continued upon the application of, or notice to, his executor
or administrator, or temporary administrator of his estate.
 CHAPTER V 303
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

P rocedural Baals:

Sec. 30 o f Republic Act No. 9285, provides for the rule

in case of death of a party in an arbitration agreement. It
states that:
"Sec. 30. Death o f p a rty. — Where a party dies
after m aking a subm ission or a contract to arbitrate
as prescribed in th is Act, th e proceedings m ay be
begun or continu ed upon th e application of, or n otice
to , h is execu tor or adm inistrator, or tem porary
adm inistrator o f h is esta te. In any su ch c a se, th e
court m ay issu e an order extend ing th e tim e w ithin
w hich n otice o f a m otion to confirm , vacate, m odify
or correct an award m ust be served. Upon confirm ing
an award, where a party has died sin ce it was filed or
delivered, th e court m ust enter judgm ent in th e nam e
o f th e original party; and th e proceedings thereupon
are th e sam e as where a party dies after a verd ict.”

COMMENTS:
Q: W hat is th e effect o f th e d eath o f a p arty in an
arb itra tio n ag reem en t?
A: Where a party dies after making a submission or a
contract to arbitrate as prescribed in this Act, the proceedings
may be begun or continued upon the application of, or notice
to, his executor or administrator, or temporary administrator
of his estate.

Q: W hat is th e d u ty o f th e co u rt?
A: In any such case, the court may issue an order extend­
ing the time within which notice of a motion to confirm, va­
cate, modify or correct an award m ust be served.

Q: W hat is th e effect o f th e confirm ation of th e aw ard?

A: Upon confirming an award, where a party has died since
it was filed or delivered, the court must enter judgment in the
304 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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name of the original party; and the proceedings thereupon

are the same as where a party dies after a verdict.

IV. DEPOSITION BEFORE ACTION

1. D eposition I

Q: How can dep o sitio n before a ctio n be availed of?

A: 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.

P rocedural Basis:

Sec. 1, Rule 24 of th e 1997 Rules of Civil Procedure

provides for manner of the taking of deposition before the
commencement of the action. It states that:
“S ec. 1. D epositions before action ; p etitio n . — A
person who desires to perpetuate h is own testim o n y
or th at o f another person regarding any m atter th at
m ay be cognizable in any court o f th e Philippines,
m ay file a verified p etition in th e court o f th e place o f
th e residence o f any exp ected adverse party.”

COMMENTS
Q: How can d ep o sitio n before actio n be com m enced?
A: A person who desires to perpetuate his own testimony or
that of another person may file a petition regarding:
1) Any matter that may be cognizable in any court of
the Philippines; and
2) In the court of the place of the residence of any
expected adverse party.
 CHAPTER V 305
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

||' 2. C o n ten ts o fP e titio n :

Q: W hat are th e c o n te n ts o f th e p e titio n to tak e

dep o sitio n before a c tio n ?
A: Sec. 2, Rule 24 o f th e 1997 Rules o f Civil P rocedure
provides for the rule on the contents of the petition for the
taking of deposition before the commencement of the action.
It states that:
“Sec. 2. Contents o f p etitio n . — The p etitio n shall
be en titled in th e nam e o f th e petition er and shall
show: (a) th at th e petition er exp ects to be a party to
an action in a court o f th e Philippines but is presently
unable to bring it or cause it to be brought; (b) the
subject m atter o f th e exp ected action and h is in terest
therein; (c) th e facts w hich he d esires to estab lish by
th e proposed testim o n y and h is reasons for desiring
to perpetuate it; (d) th e nam es or a description o f
th e persons he ex p ects w ill be adverse parties and
th eir addresses so far as known; and (e) th e nam es
and addresses o f th e persons to be exam ined and the
substance o f th e testim o n y w hich he ex p e c ts to e lic it
from each, and shall ask for an order authorizing th e
petition er to take th e d ep osition s o f th e persons to
be exam ined nam ed in th e p etitio n for th e purpose o f
perpetuating their testim o n y .”

COMMENTS
Q: W hat are th e c o n te n ts o f th e p e titio n for tak in g of
dep o sitio n before a ctio n ?
A: The petition for the 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 a court of the Philippines but is presently unable to bring
it or cause it to be brought;2
2) The subject matter of the expected action and his
interest therein;
306 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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3) The facts 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 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.

V. DNA EVIDENCE RULE/TESTING

1. A pplication o f th e R ules on Evidence:

Q: W hen will th e provision o f th e Rules on Evidence be

applicable?
A: Sec. 2 of th e DNA Evidence Rule (A.M. No. 06-11-5-
SC, October 15, 2007) provides for the application of the
rules on evidence. It states that:
“S ec. 2. A pplication o f oth er Rules on Evidence.
— In all m atters n ot sp ecifically covered by th is Rule,
th e Rules o f Court and other p ertinent provisions o f
law on evid en ce shall apply.”

COMMENTS
Q: W hat is th e rule on th e app licatio n of th e Rules on
Evidence on DNA E vidence?
A: The rule states that, in all matters not specifically
covered by this Rule, the Rules of Court and other pertinent
provisions of law on evidence shall apply.
 CHAPTER V 307
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION

|| 2. D efinition o f Term s!

Sec. 3 of th e DNA Evidence Rule (A.M. No. 06-11-5-

SC, O ctober 15, 2 0 0 7 ) provides for the definition of terms
under the rules. It states that:
“Sec. 3. Definition o f Terms. — For purposes
o f th is Rule, th e follow ing term s shall be defined as
follows:
(a) "Biological sam ple” m eans any organic
m aterial originating from a person’s body, even if
found in inanim ate objects, th at is su scep tible to DNA
testin g . T his includ es blood, saliva and other body
fluids, tissu e s, hairs and bones;
(b) "DNA” m eans deoxyribonucleic acid, w hich
is th e chain o f m olecu les found in every nucleated
cell o f th e body. The to ta lity o f an individual’s DNA is
unique for th e individual, excep t identical twins;
(c) "DNA evid en ce” c o n stitu te s th e to ta lity o f
th e DNA profiles, resu lts and other gen etic inform a­
tio n directly generated from DNA testin g o f biological
sam ples;
(d) "DNA profile” m eans gen etic inform ation
derived from DNA testin g o f a biological sam ple
obtained from a person, w hich biological sam ple is
clearly identifiable as originating from th a t person;
(e) "DNA te stin g ” m eans verified and credible
scien tific m ethods w hich include th e extraction
o f DNA from biological sam ples, th e generation o f
DNA profiles and th e com parison o f th e inform ation
obtained from th e DNA testin g o f biological sam ples
for th e purpose o f determ ining, w ith reasonable
certain ty, w hether or n ot th e DNA obtained from
tw o or m ore d istin ct biological sam ples originates
from th e sam e person (direct identification) or if th e
biological sam ples originate from related persons
(kinship analysis); and
(f) "Probability o f Parentage” m eans th e
num erical estim a te for th e likelihood o f parentage o f
308 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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a putative parent com pared w ith th e probability o f a

random m atch o f tw o unrelated individuals in a given
population.”

COMMENTS:
Q: W hat is a biological sam ple?
A: "Biological sam ple” means any organic m aterial
originating from a person’s body, even if found in inanimate
objects, that is susceptible to DNA testing. This includes
blood, saliva and other body fluids, tissues, hairs, and bones.

Q: W hat is DNA?
A: “DNA” means deoxyribonucleic acid, which is the chain
of molecules found in every nucleated cell of the body. The
totality of an individual’s DNA is unique for the individual,
except identical twins.

Case Law:

DNA is the fundamental building block of a person’s

entire genetic make-up. DNA is found in all human cells and
is the same in every cell of the same person. Genetic identity
is unique. Hence, a person’s DNA profile can determine
his identity. (Rosendo Herrera vs. Rosendo Alba, Minor,
Represented by his mother Armi A. Alba, and Hon. Nimfa
Cuesta-Vilches, Presiding Judge, Branch 48, Regional Trial
Court, Manila, G.R. No. 148220, June 15, 2005)

Q: W hat is DNA evidence?

A: “DNA evidence” constitutes the totality of the DNA
profiles, results and other genetic information directly
generated from DNA testing of biological samples.

Q: W hat is DNA profile?

A: “DNA profile” means genetic information derived from
DNA testing of a biological sample obtained from a person,
which biological sample is clearly identifiable as originating
from that person.
 CHAPTER V 309
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
Q: W hat is DNA te stin g ?
A: “DNA te stin g ” means verified and credible scientific
methods which include the extraction of DNA from biological
samples, the generation of DNA profiles and the comparison
of the information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or more
distinct biological samples originates from the same person
(direct identification) or if the biological samples originate
from related persons (kinship analysis).
Q: W hat is DNA A nalysis?
A: “DNA A nalysis” is a procedure in which DNA extracted
from a biological sample obtained from an individual is
examined. The DNA is processed to generate a pattern, or
a DNA profile, for the individual from whom the sample is
taken. This DNA profile is unique for each person, except for
identical twins. We quote relevant portions of the trial court’s
3 February 2000 order with approval. (Rosendo Herrera vs.
Rosendo Alba, Minor, represented by his mother Armi A. Alba,
and Hon. Nimfa Cuesta-Vilches, Presiding Judge, Branch 48,
Regional Trial Court, Manila, G.R. No. 148220, June 15, 2005)
Q: W hat is probability o f p aren tag e?
A: “Probability o f P aren tag e” means the numerical
estimate for the likelihood of parentage of a putative parent
compared with the probability of a random match of two
unrelated individuals in a given population.

3. A pplication for DNA Testing:

Sec. 4 o f th e DNA Evidence Rule (A.M. No. 06-11-5-SC,

October 15, 2007) provides for the rule on the application
for DNA Testing. It states that:
“Sec. 4. A pplication f o r DNA Testing Order. —
The appropriate court m ay, at any tim e, either motu
proprio or on application o f any person who has a
legal in terest in th e m atter in litigation , order a DNA
testin g . Such order shall issu e after due hearing and
n o tice to th e parties upon a show ing o f th e following:
310 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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(a) A biological sam ple e x ists th at is relevant to

th e case;
(b) The biological sample: (i) was n ot previously
subjected to th e type o f DNA te stin g now requested;
or (ii) was previously subjected to DNA testin g , but th e
resu lts m ay require confirm ation for good reasons;
(c) The DNA te stin g u ses a scien tifica lly valid
technique;
fd) The DNA testin g has th e scien tific p otential
to produce new inform ation th a t is relevant to th e
proper resolution o f th e case; and
(e) The ex isten ce o f other factors, if any, w hich
th e court m ay consider as poten tially affecting th e
accuracy or integrity o f th e DNA testin g . T his Rule
■ball not preclude a DNA te a r in g , w ithout need o f a
prior court.order,.at-thc-hehcst-pf any party, including
law enforcem en t agen cies, before a su it or proceeding
is com m en ced .”

COMMENTS
Q: How to apply for a DNA T estin g O rder?
A: The appropriate court may, at any time, either motu
proprio or on application of any person who has a legal interest
in the matter in litigation, order a DNA testing.

Q: W hat are th e req u irem en ts for DNA T esting O rder?

A: The order for DNA testing shall issue after due hearing
and notice to the parties upon a showing of the following:
1) A biological sample exists that is relevant to the
case;
2) The biological sample: (i) was not previously
subjected to the type of DNA testing now requested; or (ii)
was previously subjected to DNA testing, but the results may
require confirmation for good reasons;
3) The DNA testing uses a scientifically valid technique;
 CHAPTER V 311
PROCEEDINGS OR REMEDIES BEFORE
THE COMMENCEMENT OF A CIVIL ACTION
4) The DNA testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case; and
5) The existence of other factors, if any, which the
court may consider as potentially affecting the accuracy or
integrity of the DNA testing. This Rule shall not preclude a
DNA testing, without need of a prior court order, at the behest
of any party, including law enforcement agencies, before a
suit or proceeding is commenced.
Q: Can a DNA te stin g be done w ith o u t a co u rt order or
before th e filing of a case in c o u rt?
A: Yes, as expressly provided by the above-cited rule that,
this Rule shall not preclude a DNA testing, without need
of a prior court order, at the behest of any party, including
law enforcement agencies, before a suit or proceeding is
commenced.
 CHAPTER VI

GENERAL PROVISIONS

A. Basic C oncept:

Q: W hat is th e n a tu re o f th e Rules o f C ourt?

A: The rules embodied in the Rules of Court sire not laws
in the strict sense of the word since they did not emanate
from the legislature, but since they were promulgated under
authority of law, such rules have the force and effect o f laws.
(Alvero vs. De la Rosa, 76 Phil. 428)
Q: When is th e effectivity d ate o f th e Rules of Court?
A: January 1, 1964 (Rule 144.)
Q: When is th e effectivity date o f th e 1997 Rules on
Civil Procedure?
A: July 1, 1997 (Bar Matter No. 803, April 8, 1997).

I 1 TTiitle of th e Rules:
II
Sec. 1, Rule 1 of th e 1997 Rules of Civil Procedure
provides for the title of the Rules. It states that:
“S ection 1. Title o f th e Rules. — These Rule shall
be known and cited as th e Rules o f Court.” (1)

COMMENTS:
Q: W hat is th e title o f th e R ules?
A: These Rule shall be known and cited as the Rules of
Court.
312
 CHAPTER VI 313
GENERAL PROVISIONS

2. A pplication of th e Rules:

Sec. 2, Rule 1 o f th e 1997 Rules of Civil P rocedure

provides for the rule on the application of the Rules of Court.
It states that —
"Sec. 2 . C oses governed. — T hese R ules shall
apply in all courts, excep t as otherw ise provided by
th e Suprem e Court.”

COMMENTS:
Q: In w hat c o u rts will th e Rules will apply?
A: The Rules shall apply in all courts which shall be as
follows, to wit:
1) Supreme Court;
2) Court of Appeals;
3) Sandiganbayan;
4) Court of Tax Appeals;
5) Regional Trial Court;
6) Family Court;
7) Metropolitan Trial Court, Metropolitan Circuit Trial
Court, Municipal Circuit Trial Court.
Q: W hat is th e ex cep tio n ?
A: When the Supreme Court otherwise provides.
Q: D istin ctio n s betw een th e C ourt and th e Ju d g e ?

Court
a) A court is a tribunal clothed
with the power and authority
to entertain and resolve legal
disputes between the parties
to c a n y out the dispensation
of justice in accordance with
law.
Judge
a) A judge is a public
officer who exercises the
power of the court in the
dispensation of justice.
314 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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b) A court is more of a b) A judge is merely

perm anent sta tu s or tem porary.
existence.
c) A court is established by c) A judge is appointed
law or the C onstitution. by the President of the
Philippines upon the
recom m endation of the
Judicial an d B ar Council.

Q: W hat is th e d istin c tio n betw een co u rt of law and

co u rt o f eq u ity ?
A: A court of law decides a case according to what the
promulgated law is while a court of equity adjudicates a
controversy according to the common precepts of what is
right and just without inquiring into the terms of the statutes.
In the Philippines, every court, both original and appellate,
exercises both legal and equitable jurisdictions. (U.S. vs.
Tamparong, 31 Phil. 321)
Q: D istin ctio n s betw een A ction vs. Cause of A ction vs.
R ight o f A ction?

A ction Cause o f action R ight o f action

It is a su it filed in The delict or w rong­ The rem edial right
court for the pro­ ful act or om ission or right to relief
tection and e n ­ com m itted by the granted by law to
forcem ent of a right defendant in viola­ a party to institute
and the prevention tion of the prim ary an action against
and redress of a rights of the plain­ a person who h a s
wrong. tiff. (Racoma vs. com m itted a delict
Fortich, et al., or wrong against
L-29380, June 10, him. In civil actions,
1971) a right of action
is the necessary
consequence of a
cau se of action, for
the enforcem ent or
protection of a right
or th e prevention or
redress of a wrong;
a n d so they say.
 CHAPTER VI 315
GENERAL PROVISIONS

3. Case Governed by th e Rules:

Sec. 3, Rule 1 o f th e 1997 Rules of Civil Procedure

provides for the rule on the coverage of its application. It
states that:
“Sec. 3. Cases governed. — These Rules shall
govern the procedure to be observed in action, civil
or criminal or 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.
(b) A criminal action is one by which the State
prosecutes a person for an act or omission punishable
by law.
(c) A special proceeding is a remedy by which
a party seeks to establish a status, a right, or a
particular fact.”
COMMENTS
Q: In w hat cases th e Rules o f C ourt will apply?
A: The Rules of Court will apply in the following cases:
a) Civil cases;
b) Criminal cases; and
c) Special proceedings.
Q: W hat are th e k inds o f actio n s u n d er th e ru les?
A: The kinds of actions under the rules are as follows:
a) Civil action;
b) Criminal action;
c) Special Proceeding.
316 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is a civil actio n ?

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.
Q: W hat are th e k inds of civil actio n s?
A: 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.
Q: W hat is a crim in al a ctio n ?
A: A criminal action is one by which the State prosecutes a
person for an act or omission punishable by law.
Q: W hat is a special proceeding?
A: A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.
Q: W hat are th e D istin ctio n s betw een Civil A ction,
C rim inal A ction, an d Special Proceeding? (2006 Bar
Exam ination)

Civil Action Criminal Action Special

Proceeding
1. As to definition:
- One by which a p a r­ - One by w hich the - A rem edy by
ty sues another for State prosecutes a which a party
the enforcement or person for an act or seeks to establish
protection of a right, om ission p u n ish ­ a sta tu s, a right,
or the prevention or able by law. (Sec. or a particular
redress of a wrong. l[b] o f Rule 1) fact. (Sec. l/c],
(Sec. 3, Rule 1) Rule 1)
 CHAPTER VI 317
GENERAL PROVISIONS

2. As to governing
rules:
- Civil action is gov­ - It is governed by - It is governed
erned by Rules 1-71 Rules 110-127 of by Rules 72-109
the Revised Rules of of the Rules of
Crim inal Procedure, Court, and rules
an d rules on ordi­ on ordinary civil
nary civil actions actions only a p ­
only applies in sup- plies in supple-
pletory character. tory character.

3. As to basis:
- A civil action is - It is based on acts - It is based on
based on a cause of or om ission in viola­ p articular fact,
action. tion of penal laws. sta tu s, or a right
sought to be es­
tablished.
4. As to th e nature:
- The proceeding is - It is adversarial - As a rule, it is
adversarial since it and prosecutorial in n o n -a d v e rs a ri-
involves two (2) con­ n ature. al, except when
tending parties. there is a n op-
p o s ito r /r e s p o n -
dent.
5. As to parties:
- Parties in a civil ac­ - Parties in a crim ­ - Party in special
tion are th e plaintiff inal action are the proceeding is the
an d the defendant. State a n d the ac­ petitioner, except
In case of special civil cused, and in case w hen opposed,
action is com m enced of prelim inary inves­ the oppositor or
by petition, parties tigation, th e com­ respondent.
are the petitioner plainant and the
and the respondent. respondent.

Q: W hat are th e k in d s o f civil actio n u n d er existing

ru les?
A: The kinds of civil action under the existing rules
promulgated by the Supreme Court are as follows:
a) Ordinary civil action;
b) Special civil action;
318 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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c) Actions under the Rules on Summary Procedure; and

d) Action under the Revised 2016 Rules on Small
Claims Cases.
Q: W hat are th e Rules w hich govern civil actio n s or
proceedings?
A: Civil actions or proceedings are governed by the following
rules, to wit:
a) Ordinary rules on civil action which is governed by
Rules 1-56;
b) Provisional remedies which are governed by Rules
57-61;
c) Special civil actions which are governed by Rules
62-71; and
d) Actions covered by the Rules on Summary Procedure;
and
e) Revised 2016 Rules on Small Claims Cases.
Q: W hat are th e classificatio n s o f actio n s according to
its purpose?

a) As to its subject: d eterm in a tio n o f venue.

A distinction between real and personal actions is

necessary for the purpose of determining the venue of an
action in accordance with Rule 4 of the 1997 Rules of Civil
Procedure. (Nilo Padre vs. Fructosa Badillo, G.R. No. 165423,
January 19, 2011)
Q: W hat is a real actio n ?
A: Real action — One brought for the protection of real
rights, lands, tenements or hereditaments or one founded on
privity of estate only. (Paper Industries Corp. of the Phil. vs.
Samson, et al., L-30175, November 28, 1975)
Example: An action for recovery of possession of real
property, quieting of title or removal of clouds, action for
specific performance for the delivery of real property.
 CHAPTER VI 319
GENERAL PROVISIONS

Q: W hat is a p ersonal a c tio n ?

A: Personal action — One which is not founded upon the
privity of real rights or real property. An action for specific
performance is a personal action. (Siosoco vs. Court of
Appeals, 303 SCRA 186)
Exam ple: An action which seeks to recover personal
property, enforcement of a contract, or the recovery of
damages.

Q: W hat is a m ixed a ctio n ?

A: Mixed action — When the plaintiff joins two or more
causes of actions based on the same act or occurrence, one
of which is a real action; For instance, in an action to annul
a sale of a land and to recover the land; For the purpose of
venue determination, the action is a real action and m ust be
filed in the place where the property is situated regardless of
the residence of the parties. (Emergency Loan Pawnshop, Inc.
vs. Court o f Appeals, G.R. No. 129184, February 28, 2010)

Q: W hat is local a ctio n ?

A: Local action — is an action which is required by the
rules to be instituted in a particular place in the absence of
any agreement to the contrary.
Q: W hat is tra n sito ry a c tio n ?
A: Transitory action — is an action the venue of which
is dependent generally upon the residence of the parties
regardless of where the cause of action arose.

b) As to its purpose: service o f sum m ons, and

acq u isitio n of ju risd ictio n .

The kinds of actions discussed herein below are relevant

to the service of Summons under Rule 14 of the 1997 Rules of
Civil Procedure, for the purpose of acquisition of jurisdiction
by the court upon the person of the defendant or upon the
res.
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Q: W hat is an actio n in rem ?

A: Action in rem — One which is not directed only against
particular person, but against the thing itself and the object
of which is to bar indifferently all who might be minded to
make any objection against the right sought to be enforced,
hence, the judgment therein is binding theoretically upon the
whole world.
Example: Cadastral and land registration proceedings,
probate proceedings.
Q: W hat is th e n a tu re o f a p e titio n to establish
illegitim ate filiatio n ?
A: Petition to establish illegitimate filiation is an action in
rem: mere filing of the petition court acquires jurisdiction
over the case.

The herein petition to establish illegitimate filiation is an

action in rem. By the simple filing of the petition to establish
illegitimate filiation before the RTC, which undoubtedly had
jurisdiction over the subject matter of the petition, the latter
thereby acquired jurisdiction over the case. (Jesse U. Lucas
vs. Jesus S. Lucas, G.R No. 190710, June 6, 2010)
Q: W hat Is an actio n in p e r s o n a m ?
A: Action in personam — One which is directed against
particular persons on the basis of their personal liability to
establish a claim against them and the judgment wherein is
binding only upon the parties impleaded or their successor in
interest.
Exam ple: Recovery of damages, specific performance,
action for injunction, rescission of contracts.
Q: W hat is th e req u irem en t for th e co u rt to try and
decide th e case in an a c tio n in p e r s o n a m ?
A: Jurisdiction over the person of the defendant necessary
for the court to try and decide an action in personam.
 CHAPTER VI 321
GENERAL PROVISIONS

|| Case L a w ^ Jj

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 a 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 latter has jurisdiction over the res. Jurisdiction over the
res is acquired either: (a) by the seizure of the property under
legal process, whereby it is brought into actual custody of the
law, or (b) as a result of the institution of legal proceedings, in
which the power of the court is recognized and made effective.
(Jesse U. Lucas vs. Jesus S. Lucas, supra)

Q: W hat is an actio n quasi in re m ?

A: Action quasi in rem — One which is directed against
particular persons but the purpose of which is to bar and
bind not only said persons but any other person who claims
any interest in the property or right subject of the suit. (As
cited in R em ed ia l L a w Compendium, F lo r e n z D. R e g a la d o , Sixth
edition, pp. 20-21)
Exam ple: Foreclosure of mortgage (Rule 68); Partition
under Rule 69; attachment under Rule 57; or any other action
the purpose of which is to exclude the defendant’s interest
over the property.

4. Case Not D irectly G overned by th e Rules:

Sec. 4, Rule 1 o f th e 1997 Rules of Civil P rocedure

provides for the rule on the non-applicability of the provision
of the Rules of Court in some cases. It states that:
"See. 4. In w h a t c a s e s not applicable. —
T hese R ules shall n ot apply to electio n ca ses, land
registration, cadastral, naturalization and in solven cy
proceedings, and other c a ses n ot herein provided for,
excep t by analogy or in a suppletory character and
w henever practicable and co n v en ien t.”
322 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat are th e cases w hich are n o t d irectly governed
by th e Rules o f C ourt?
A: As a rule, the provisions of the Rules of Court shall not
directly apply in the following cases:
(a) Election cases;
(b) Land Registration cases;
(c) Cadastral proceedings;
(d) Naturalization proceedings;
(e) Insolvency proceedings.
Q: W hat are th e o th e r cases n o t d irectly governed by
th e Rules of C ourt?
A: The other cases not directly governed by the Rules of
Court, are as follows, to wit:
(a) Labor Cases;
(b) Impeachment cases;
(c) Small Claims Cases.
(d) Cases falling under Summary Proceedings.
Q: How will th e Rules o f C ourt be applied in th e above-
en u m erated cases?
A: The above-cited provision of the Rules of Court (Sec.
4) shall apply in the above enumerated cases only in the
following manner:
1) Suppletory in character; and
2) Whenever practicable and convenient.

Case Law:

The Rules of Court shall not apply to election cases,

land registration, cadastral, and insolvency proceedings,
and other cases not herein provided for except by analogy
or in a suppletoiy character and whenever practicable and
convenient. (Sec. 4, Rule 1 o f the Rules o f Court) x x x. The Rules
 CHAPTER VI 323
GENERAL PROVISIONS

nonetheless be applied in suppletory character. (Government

Service Insurance System [GSIS] vs. Dinnah Villaviza, G.R. No.
180291, July 27, 2010)
Q: W hat is th e m eaning o f "su p p leto ry c h a ra c te r” in th e
app licatio n o f th e Rules o f C ourt?
A: It means that the Rules of Court will apply if there is
insufficiency in the applicable rules.

Case Law:

It means that the provision in the Rules of Court will

be made to apply only where there is an insufficiency in the
applicable rule. (Government Service Insurance System [GSIS]
vs. Dinnah Villaviza, G.R. No. 180291, July 27, 2010)

A) S uppletory A pplication o f th e Rules on |

Civil Procedure:

1) A pplication o f th e Rules on Civil Procedure in |

Sm all Claim s Cases:

Q: How will th e Rules on Civil P rocedure be applied In

Sm all Claim s C ases?
A: The Rules of Civil Procedure shall apply suppletorily
insofar as they are not inconsistent with this Rule.

Sec. 27 o f A.M. No. 08-8-7-8C, as amended otherwise

known as the Revised 2 0 1 6 Rules on Sm all Claim s Cases
provides for the rule on the application of the Rules of Civil
Procedure in small claims cases. It states that:
"See. 2 7 . A p p lica b ility o f th e Rules o f Civil
Procedure. — The R ules o f Civil Procedure shall apply
suppletorily insofar as th e y are n ot in co n sisten t with
th is Rule.”
324 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) A pplication of th e Rules on Civil Procedure in

Im peachm ent Trial:

Q: How will th e Rules on Civil Procedure be applied in

Im peachm ent Trial?
A: The Rules of Civil Procedure shall be applied liberally
whenever practicable.

Procedural Basis:

Art. VI of th e Rules of Im peachm ent Trial in th e

Senate provides that:
"The R ules o f Evidence and procedure shall be
applied liberally and whenever th ey are practicable in
Im peachm ent Trial C ases.”

3) A pplication of th e Rules on Civil Procedure in C

F orfeiture Cases:
Q: How will th e Rules on Civil Procedure be applied in
Civil Forfeiture Cases?
A: The Revised Rules of Court shall apply suppletory when
not inconsistent with the provisions of this special rules.

Procedural Basis:

Sec. 1, T itle I of A.M. No. 05-11-04, provides for the

rule on the application of the Rules of Court in case of civil
forfeiture under Republic Act No. 9160, as amended. It states
that:
"Sec. 1. A pplicability. —

The Revised Rules o f Court shall apply suppletory

when not in co n sisten t with th e provisions o f th is
special rales.n
 CHAPTER VI 325
GENERAL PROVISIONS

■ 5 " ~ 1 ■

4) A pplication o f th e Rules on Civil P rocedure in

Labor Cases:
Q: How will th e Rules on Civil Procedure be applied in
Labor C ases?
A: The pertinent provisions of the Rules of Court of the
Philippines may, in the interest of expeditious dispensation
of labor justice and whenever practicable and convenient, be
applied by analogy or in a suppletory character and effect.

P rocedural Basis:

Sec. 3, Rule I o f th e 2011 NLRC Rules o f Procedure

provides for the suppletory application of the Rules of Court
in labor cases. It states that:
uSec. 3. Su ppletory A pplication o f th e Rules o f
Court. — In th e absence o f any applicable provision in
th e se R ules, and in order to effectu ate th e objectives
o f th e Labor Code, th e pertinent provisions o f th e
Rules o f Court o f th e Philippines may, in th e in terest
o f expeditious dispensation o f labor ju stic e and
w henever practicable and con ven ien t, be applied by
analogy or in a suppletory character and e ffe c t.”

5) A pplication of th e Rules on Civil Procedure in

Special Proceedings Cases (Bar E xam ination 2015):
Q: How will th e Rules on Civil P rocedure be applied in
Special Proceedings C ases?
A: In the absence of special provisions, the rules provided
for in ordinary actions shall be as far as practicable, applicable
in special proceedings.

|| ProceduralBasisT

Sec. 2, Rule 72 o f th e Rules o f C ourt states that:

wSec. 2. In th e absence o f sp ecial provisions, th e
rules provided for in ordinary action s shall be as far
as practicable, applicable in sp ecial proceedings.”
326 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6) A pplication o f th e Rules on Civil Procedure in

[
Q: W hat is th e rule on th e application of th e Rules of
Civil Procedure in C rim inal Proceedings?
A: Rules on ordinary civil action shall be applied suppletorily
in criminal proceedings.

B. A pplicability o f O th er Special Rules of Procedure

in Civil Actions:

1) A pplication of DNA Evidence Rule in Civil Actions:

Q: Is DNA Evidence Rule applicable in civil actio n s?

A: Yes. The Rule shall apply whenever DNA evidence, as
defined in Section 3 hereof, is offered, used, or proposed to be
offered or used as evidence in all civil actions.

Procedural Basis:

Sec. 1 o f th e DNA Evidence Rule (A.M. No. 06-11-5-

SC), provides for the scope of the application of the rules. It
states that:
“Sec. 1. Scope. — This Rule shall apply w henever
DNA evid en ce, as defined in Section 3 hereof, is
offered, used, or proposed to be offered or used as
evid en ce in all crim inal and civil action s as well as
special proceedings.”2

2) A pplication of Child W itness E xam ination Rule in

^ = = = = = = _________
Q: Is Child W itness E xam ination Rule applicable in civil
actio n s?
A: Yes, the Rule shall apply in all criminal proceedings and
non-criminal proceedings involving child witnesses.
 CHAPTER VI 327
GENERAL PROVISIONS

P rocedural Basis:

Sec. 1 o f th e Child W itness E xam ination Rule (A.M.

No. 004-07-SC), provides for the rule on the application of
the rule in civil actions. It states that:
"See. 1. A pp lica b ility o f th e Rule. — U nless
otherw ise provided, th is Rule shall govern th e
exam ination o f child w itn esses who are v ictim s o f
crim e, accused o f a crim e, and w itn esses to crim e.
It shall apply in all crim inal proceedings and non-
crim inal proceedings involving child w itn e sse s.”

3) A pplication o f E lectronic Evidence Rule in

Civil A ctions:

Q: Is E lectronic Evidence Rule applicable in civil

a c tio n s?
A: Yes, the Rules shall apply to all criminal and civil actions
and proceedings, as well as quasi-judicial and administrative
cases.

P rocedural Basis:

Sec. 2, Rules on th e E lectronic Evidence Rule, as

amended (A.M. 01-7-01-SC) provides for the cases covered
by the rules on electronic evidence. It states that:
MSec. 2. Cases covered. —T hese R ules shall apply
to all crim inal and civil actio n s and proceed ings, as
w ell as quasi-judicial and adm inistrative c a se s.”

4) A pplication o f Ju d ic ia l Affidavit Rule in Civil

A ctions:

Q: Is Ju d ic ia l Affidavit Rule applicable in civil actio n s?

A: Yes, the Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence.
328 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P r o c ed u r a l B a sis:

S e c . 1 o f t h e J u d ic ia l A ffid a v it R u le provides for the

scope of its application. It states that:
“Sec. 1. Scope. — (a) This Rule shall apply to
all action s, proceedings, and in cid en ts requiring the
reception o f evidence before:

5) A p p lic a tio n o f R u le s o f P r o c ed u r e for I n t e lle c t u a l

P ro p erty R ig h ts C a s e s in C iv il A c tio n s:

Q: Are R u le s o f P r o c ed u r e for I n t e lle c t u a l P r o p e r ty

R ig h ts C a s e s a p p lic a b le in c iv il a c tio n s ?
A: Yes, when the court determines that the civil or criminal
action involves complex issues, it shall issue a special order
that the regular procedure prescribed in the Rules of Court
shall apply, stating the reason therefor.

P r o c ed u r a l B a sis:

S e c . 1, R u le 1 0 o f t h e R u le s o f P r o c ed u r e for
I n t e lle c t u a l P r o p e r ty R ig h ts provides for the rule on its
application in civil actions. It states that:
“Sec. 3. A p p lica b ility o f th e regular rules. —
When th e court determ in es that th e civil or crim inal
action in volves com p lex issu es, it shall issu e a special
order th at th e regular procedure prescribed in th e
Rules o f Court shall apply, statin g th e reason therefor.
Where applicable, th e Rules o f Court shall apply
suppletorily to proceedings under th e se R ules.”

6) A p p lic a tio n o f R u le s o f P r o c ed u r e for E n v ir o n m e n ta l

C a se s in C iv il A c tio n s: _________

Q: A re R u le s o f P r o c ed u r e for E n v ir o n m e n ta l C a se s
a p p lic a b le in c iv il a c t io n s ?
 CHAPTER VI 329
GENERAL PROVISIONS

A: Yes, the Rules shall govern the procedure in civil, criminal

and special civil actions involving enforcement or violation of
environmental and other related laws, rules and regulations.

P rocedural Basis:

Sec. 2, Rule 1, P art I of th e Rules of Procedure for

E n vironm ental Cases (A.M. No. 09-6-8-SC, April 29, 2010)
provides for the rule on the application of its application in
criminal proceeding. It states that:
“S ec. 2. Scope. — T hese Rules shall govern th e
procedure in civil, crim inal and special civil action*
before th e Regional Trial Court, M etropolitan Trial
Courts, M unicipal Trial Courts in C ities, Municipal
Trial Courts and M unicipal Circuit Trial Courts
involving enforcem en t or violation o f environm ental
and other related laws, rules and regulations, z z z z ”

5. C om m encem ent of Civil Action:

Q: How to com m ence a civil actio n ?

A: A civil action is commenced by the filing of the original
complaint with the court (Sec. 5, Rule 1 of the 1997 Rules of
Civil Procedure) plus the payment of a corresponding docket
and other legal fees. (Rule 141, as amended)

|| Procedural Basis^

Sec. 5, Rule 1 o f th e 1997 Rules on Civil Procedure

provides for the rule on commencement of civil action. It
states that:
"Sec. 5. Commencement o f action . — A civil action
is com m enced by th e filing o f th e original com plaint
in court. If an additional defendant is im pleaded in a
later pleading, th e action is com m enced w ith regard
to him on th e date o f th e filing o f su ch pleading,
irrespective o f w hether a m otion for its adm ission, if
necessary, is denied by th e court.”
330 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENT:
Q: How will a civil actio n be com m enced?
A: Civil Action is commenced before the court by:
1) Filing of the original complaint in court.
2) 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 pleading, irrespective of whether a
motion for its admission, if necessary, is denied by the court.
Q: W hat are th e req u irem en ts for th e com m encem ent of
a civil actio n ?
A: A civil action is commenced by the filing of the original
complaint with the court (Sec. 5, Rule 1 of the 1997 Rules of
Civil Procedure) plus the payment of a corresponding docket
and other legal fees. (Rule 141, as amended)

C om m encem ent o f a Sm all Claim s Case

l8e: 1
Q: How to com m ence a Sm all Claim s Case?
A: Filing with the court an accomplished and verified
Settlement of Claim (Form 1-SCC) in duplicate plus the
payment docket fees.

Procedural Basis:

Sec. 5, Rules on Sm all Claim s (A.M. No. 08-8-7-SC)

provides for the rule on the commencement of a small claims
case. It states that:
K8ec. 5. Commencement o f S m all Claims Action.
— In ■mall claim s ca ses, it can be com m enced by
filing w ith th e court an accom plished and verified
S ettlem en t o f Claim (Form 1-SCC) in duplicate,
accom panied by a C ertificate o f Non-forum shopping
(Form 1-A SCC), and two duly certified photocop ies o f
th e actionable d o c u m e n t/s as w ell as th e affidavits o f
w itn esses and other evid en ce to support th e claim .
 CHAPTER VI 331
GENERAL PROVISIONS

No evid en ce shall be allow ed during th e hearing w hich

was not attached to or subm itted together w ith th e
Claim, u n less good cau se is show n for th e adm ission
o f additional evid en ce.”

COMMENTS:
Q: W hat are th e req u irem en ts for th e com m encem ent of
a sm all claim a ctio n ?
A: In small claims cases, it can be commenced by:
1) Filing with the court an accomplished and verified
Settlement of Claim (Form 1-SCC) in duplicate;
2) It must be accompanied by a Certificate of Non­
forum shopping (Form 1-A SCC), and two duly certified
photocopies of the actionable docum ent/s as well as the
affidavits of witnesses and other evidence to support the
claim (Sec. 5, Rules on Small Claims, A.M. No. 08-8-7-SC); and
3) Payment of the docket and other legal fees under
Rule 141 of the Revised Rules of Court, unless allowed to sue
as indigent. (Sec. 7)

b) Effect o f th e Filing o f th e C om plaint in Court:

Q: W hat is th e effect o f filing o f th e com plaint before

th e co u rt?
A: The prescription of actions is interrupted when they are
filed before the court, when there is a written extrajudicial
demand by the creditors, and when there is any written
acknowledgment of the debt by the debtor.

S u b stan tiv e Basis:

Art. 1155 o f th e New Civil Code provides for the rule

on the instances of prescription of actions. It states that:
“Art. 1155. The prescription o f action s is
interrupted w hen th e y are filed before th e court,
w hen there is a w ritten extrajudicial dem and
by th e creditors, and when there is any w ritten
acknow ledgm ent o f th e debt by th e debtor.”
332 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6. C onstruction of th e Rules:

Q: How will th e Rules be construed?

A: The provisions of the Rules of Court shall be construed
liberally.

Procedural Basis:

Sec. 6, Rule 1 o f th e 1997 Rules of Civil Procedure

provides for the rule on the liberal construction of the rules.
It states that:
“Sec. 6. Construction. — These Rules shall be
liberally construed in order to prom ote their objective
o f securing a ju st, speedy, and inexpensive disposition
o f every action and proceeding.”

COMMENTS
Q: How will th e Rules of Court be construed?
A: The Rules shall be liberally construed in order to promote
their objective of securing a just, speedy, and inexpensive
disposition of every action and proceeding.

|^ C a s e ^ ^ J

A liberal construction of the procedural rules is proper

where the lapse in the literal observance of a rule of procedure
has not prejudiced the adverse party and has not deprived the
court of its authority. Indeed, Sec. 6, Rule 1 of the Rules of
Court provides that the Rules should be liberally construed in
order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. Rules
of procedure are tools designed to facilitate the attainment of
justice, and courts must avoid their strict and rigid application
which would result in technicalities that tend to frustrate
rather than promote substantial justice. (Douglas F. Anama
vs. Philippine Satnngs Bank, G.R. No. 187021, January 25,
2012)
 CHAPTER VI 333
GENERAL PROVISIONS

Q: Who h as th e power to su sp en d procedural ru les?

A: It is within the inherent power of the Supreme Court to
suspend its own rules.

Case Law:

Inherent power of the Supreme Court to suspend its own

rules or to exempt a particular case from the operation of said
rules whenever demanded by justice. (Rep. o f the Phils, us.
Court o f Appeals, 107 SCRA 504 [1981])
Q: W hat is th e purpose o f th e app lication of procedural
laws?
A: It is to ensure the effective enforcement of substantive
rights by providing for a system that obviates arbitrariness,
caprice, despotism, or whimsicality in the settlement of
disputes.

Case Law:

The rule on liberal construction does not mean that

procedural rules are to be ignored or disdained at will to
suit the convenience of a party. Procedural law has its own
rationale in the orderly administration of justice, namely,
to ensure the effective enforcement of substantive rights by
providing for a system that obviates arbitrariness, caprice,
despotism, or whimsicality in the settlement of disputes.
(Abrenica vs. Law Firm of Abrenica, Tungol, and Tibayan,
G.R. No. 169420, September 22, 2006; Reyes us. Fil-Estate
Properties, Inc., G.R. No. 148967, February 9, 2007)
Q: W hat are th e req u isites for th e relaxation o f th e rules.
A: The requisites are justifiable cause and compelling
reason.

Case Law:
Recapitulating, the two pre-requisites for the relaxation
of the rules are:
334 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a) Justifiable cause or plausible reason for non-

compliance; and
b) Compelling reason to convince the court that
outright dismissal of the petition would seriously impair the
orderly administration of justice. (Tible & Title Co., Inc. vs.
Royal Savings and Loan Association, G.R. No. 155806, April 8,
2008)
Q: W hat is th e purpose o f th e liberal application of th e
rules?
A: It is an exception to the well-settled principle that rules
must be complied with for the orderly administration of
justice.

Case Law:

It should be emphasized that the resort to a liberal

application, or suspension of the application of procedural
rules, must remain as the exception to the well-settled
principle that rules must be complied with for the orderly
administration of justice. (Building Care Corporation/Leopard
Security & Investigation Agency and/or Ruperto Protacio vs.
Myma Macaraeg, G.R. No. 19835710, December 2012)
Q: When can th e co u rt suspend th e application of th e
rules?
A: Courts may suspend the application of the rules where
matters of life, liberty, honor, or property are at stake.

|_ C a se _ ^ w j_ J

This Court has, on occasion, suspended the application

of technical rules of procedure where matters of life, liberty,
honor or property, among other instances, are at stake. It has
allowed some meritorious cases to proceed despite inherent
procedural defects and lapses on the principle that rules of
procedure are mere tools designed to facilitate the attainment
of justice. The strict and rigid application of rules that tend
to frustrate rather than promote substantial justice must
 CHAPTER VI 335
GENERAL PROVISIONS

always be avoided. It is far better and more prudent for the

court to excuse a technical lapse and afford the parties a
review of the case to attain the ends of justice, rather than
dispose of the case on technicality and cause grave injustice
to the parties. (Francisco R. Llamas vs. Court of Appeals, G.R.
No. 149588, August 16, 2010)
Q: May th e ru les be relaxed in case of form al deficiency
or e rro r in a pleading?
A: Yes, liberal construction of the Rules may be invoked
in situations where there may be some excusable formal
deficiency or error in a pleading.

Case Law:

It is settled that liberal construction of the Rules may

be invoked in situations where there may be some excusable
formal deficiency or error in a pleading, provided that the
same does not subvert the essence of the proceeding and
connotes at least a reasonable attempt at compliance with
the Rules. After all, rules of procedure are not to be applied
in a very rigid, technical sense; they are used only to help
secure substantial justice. (Sps. Heber & Charlita Edillo vs.
Sps. Norberto & Desideria Dulpina, G.R. No. 188360, January
21 , 2010 )
Q: W hat are th e recognized ex cep tions to th e s tric t
observance o f th e ru les?
A: Procedural rules are not to be belittled or dismissed
simply because their non-observance may have prejudiced a
party’s substantive rights; like all rules, they are required to
be followed. However, there are recognized exceptions to their
strict observance, such as:
(1) Most persuasive and weighty reasons;
(2) To relieve a litigant from an injustice not
commensurate with his failure to comply with the prescribed
procedure;
(3) Good faith of the defaulting party by immediately
paying within a reasonable time from the time of the default;
336 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(4) The existence of special or compelling circumstances;

(5) The merits of the case;
(6) A cause not entirely attributable to the fault or
negligence of the party favored by the suspension of the rules;
(7) A lack of any showing that the review sought is
merely frivolous and dilatory;
(8) The other party will not be unjustly prejudiced
thereby;
(9) Fraud, accident, mistake or excusable negligence
without appellant’s fault;
(10) Peculiar legal and equitable circumstances
attendant to each case;
(11) In the name of substantial justice and fair play;
(12) Importance of the issues involved; and
(13) Exercise of sound discretion by the judge guided by
all the attendant circumstances.
Thus, there should be an effort on the part of the party
invoking liberality to advance a reasonable or meritorious
explanation for his/her failure to comply with the rules.
(Francisco A. Labao vs. Lolito N. Flores, etal., G.R. No. 187984,
November 15, 2010)
Q: W hat th e grounds for th e relaxation of th e rules in
case of im m utability of ju d g m en t?
A: These are the grounds which are intended to serve
substantial justice.

Case Law:

A final and executory judgment can no longer be attacked

by any of the parties or be modified, directly or indirectly,
even by the highest court of the land. However, this Court
has relaxed this rule in order to serve substantial justice
considering:
a) Matters of life, liberty, honor or property,
 CHAPTER VI 337
GENERAL PROVISIONS

b) The existence of special or compelling circumstances,

c) The merits of the case,
d) A cause not entirely attributable to the fault or
negligence of the party favored by the suspension of the rules,
e) A lack of any showing that the review sought is
merely frivolous and dilatory, and
f) The other party will not be unjustly prejudiced
thereby. (Cebu Bionic Builders Supply, Inc. and Lydia Sia vs.
Development Bank of the Philippines, et al., G.R. No. 154366,
November 17, 2010)
Q: W hen can th e co u rt relax th e app lication o f th e rules
on appeal?
A: The discretion m ust be a sound one, to be exercised in
accordance with the tenets of justice and fair play, having in
mind the circumstances obtaining in each case.

|| C ase Law Tj]

The court has the discretion to dismiss or not to dismiss

an appellant’s appeal. It is a power conferred on the court,
not a duty. The discretion m ust be a sound one, to be
exercised in accordance with the tenets of justice and fair
play, having in mind the circumstances obtaining in each
case. Technicalities, however, m ust be avoided. The law
abhors technicalities that impede the cause of justice. The
court’s primary duty is to render or dispense justice. (Voltaire
I. Rovira vs. Heirs o f Jose C. Deleste, namely Josefa Deleste,
Jose Ray L. Deleste, Raul Hector L. Deleste, and Ruben Alex L.
Deleste, G.R. No. 160825, March 26, 2010)
Q: W hat is th e ratio n ale of th e app lication o f th e fresh
period to ap p eal?
A: To standardize the appeal periods ad afford litigants fair
opportunity to appeal since there is no vested rights in the
rules of procedure.
338 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

To standardize the appeal periods ad afford litigants fair

opportunity to appeal, the Supreme Court rules in Neypes vs.
Court o f Appeals, the litigants must be given a fresh period
of 15 days within which to appeal, counted from receipt of
the order dismissing a motion for a new trial or motion for
reconsideration under Rules 40, 41, 42, 43, 45 of the Rules
of Court. This ruling, as the Supreme said in Fil-Estate
Properties, Inc. vs. Homena Valencia, retroactively applies
even to cases pending prior to the promulgation of the Neypes
on September 14, 2005, there being no vested rights in the
rules of procedure. (Elena Jane Duarte vs. Miguel Samuel A.E.
Duran, G.R. No. 173038, September 14, 2011)

Q: May th e rules be relaxed in case of unexplained

failure to com ply w ith th e ru les?
A: No, unexplained failure to comply with the requirements
of procedural rules not a ground for relaxation of the rules.

Case Law:
The Court is aware of the exceptional cases where
technicalities were liberally construed. However, in these
cases, outright dismissal is rendered unjust by the presence
of a satisfactory and persuasive explanation. The parties
therein who prayed for liberal interpretation were able to
hurdle that heavy burden of proving that they deserve an
exceptional treatment. It was never the Court’s intent “to
forge a bastion for erring litigants to violate the rules with
impunity.”
This Court will not condone a cavalier attitude towards
procedural rules. It is the duty of every member of the bar
to comply with these rules. They are not at liberty to seek
exceptions should they fail to observe these rules and
rationalize their omission by harking on liberal construction.
(Maria Consolacion Rivera-Pascual vs. Spouses Marilyn Lim
 CHAPTER VI 339
GENERAL PROVISIONS

and George Lim and the Registry of Deeds of Valenzuela City,

G.R. No. 191837, September 19, 2012)
Q: May th e ru les be relaxed in case of w anton disregard
o f th e rules o r delay?
A: No, liberality in the application of rules of procedure may
not be invoked if it will result in the wanton disregard of the
rules or cause needless delay in the administration of justice.

Case Law:

Contrarily, it has also been held in a number of cases

that such liberality in the application of rules of procedure
may not be invoked if it will result in the wanton disregard
of the rules or cause needless delay in the administration of
justice. It is equally settled that, save for the most persuasive of
reasons, strict compliance is enjoined to facilitate the orderly
administration of justice. (Asian Spirit Airline Employees
Cooperative vs. Spouses Benjamin and Anna Marie Bautista,
G.R. No. 164668, February 14, 2005, citing Ortiz vs. Court of
Appeals, 299 SCRA 708 (1998])

Q: May th e rules be relaxed in case It will prejudice

su b stan tiv e rig h ts?
A: No, relaxation of the rules is not available if it will
prejudice substantive rights.

Case Law:

Thus, procedural rules are not to be belittled or dismissed

simply because their non-observance may have resulted
in prejudice to a party’s substantive rights. Like all rules,
they are required to be followed except only for the most
persuasive of reasons when they may be relaxed to relieve
a litigant of an injustice not commensurate with the degree
of his thoughtlessness in not complying with the procedure
prescribed. (Asian Spirit Airlines Employees Cooperative vs.
Spouses Benjamin and Anna Marie Bautista, G.R. No. 164668,
February 14, 2005, citing Galang vs. Court of Appeals, 199
SCRA 683(1991])
 CHAPTER VII

CAUSE OF ACTION (RULE 2)

1. Basis of Civil Action:

Sec. 1, Rule 2 of th e 1997 Rules of Civil Procedure

provides for the basis of a civil action. It states that:
uSec. 1. Ordinary civil actions, basis of. — Every
ordinary civil action m ust be based on a cause of
action .”

COMMENTS
Q: W hat is th e basis of a civil actio n ?
A: The above provision of the rules provides that, “Every
ordinary action must be based on a cause of actions.”
Q: W hat is th e purpose of cause of action?
A: The rule purposely establishes the relevance of a cause
of action only as to ordinary civil actions in obtaining redress
for the violation of one’s right. This is especially true in special
proceedings where the party merely seeks to establish a right,
a status, or a particular fact, there is normally no violation
of a right to speak of, and hence, a cause of action is not a
condition sine qua non.

2. Cause of A ction Defined:

Sec. 2, Rule 2 o f th e 1997 Rules of Civil Procedure,

provides for the definition of a cause of action, to wit:

340
 CHAPTER VII 341
CAUSE OF ACTION (RULE 2)

“Sec. 2. Cause o f action, defined. — A cause of

action is the act or omission by which a party violates
the right of another.”

COMMENTS
Q: W hat is cause o f a ctio n ?
A: Cause of actio n is the act or omission by which a party
violates the right of another.

Case Law:

Cause of action is defined as the act or omission by which

a party violates a right of another. It is well-settled that the
existence of a cause of action is determined by the allegations
in the complaint. (Manuel Ubas, Sr. vs. Wilson Chan, G.R. No.
215910, February 6, 2017)

Q: W hat are th e elem en ts of a cause of actio n to ex ist?

A: Cause of action exists when there is a right in favor of
the plaintiff, an obligation for the defendant to respect such
right, and an act or omission violating such right.*3

Case Law:

One of the grounds for the dismissal of a complaint is

the failure of the pleading asserting the claim to state a cause
of action. The elements of a cause of action are: (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 the defendant to the plaintiff for which the latter
may maintain an action for recovery of damages or other
appropriate relief.
In resolving whether the complaint states a cause of
action or not, only the facts alleged in the complaint are
considered. The test is whether the court can render a valid
342 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

judgment on the complaint based on the facts alleged and the

prayer asked for. Only ultimate facts, not legal conclusions or
evidentiary facts, are considered for purposes of applying the
test. (Butuan Development Corporation vs. The 21st Division of
the Hon. Court o f Appeals, Max Arriola, Jr., De Oro Resources
Inc., and Louie A. Libarios, G.R. No. 197358, April 5, 2017)

Example:
1. A borrowed money from B in the amount of
PI,000,000.00 payable in six months with legal interest of
2% per month (This establishes the existence o f the plaintiffs
right);
2. A should comply with the agreement of paying the
amount loaned as agreed upon (This establishes the duty of
the defendant to respect said plaintiffs right);
3. If after six months, A failed to pay B as agreed upon
(This constitute omission in molation o f the plaintiffs right)
thereby establishing the existence of a cause of action of B
against A to collect the said amount;
4. If B decides to file an action against A for collection
of sum of money (that gives rise to a right o f action in favor of
A);
5. If B actually filed the case in court for collection of
sum of money (this is known as action).
Illustration No. 1:

Q: W hat is th e m o st Im p o rtan t elem en t of a cause of

actio n ?
A: An act or omission of the defendant in violation of the
right of another is the most important element of a cause of
action.
 CHAPTER VII 343
CAUSE OF ACTION (RULE 2)

Case Law:

Of the three, the most important is the last element, since

it is only upon the occurrence of the last element that a cause
of action arises, giving the plaintiff the right to maintain an
action in court for recovery of damages or other appropriate
relief. In determining whether an initiatory pleading states
a cause of action, “the test is as follows: admitting the truth
of the facts alleged, can the court render a valid judgment
in accordance with the prayer?” To be taken into account
are only the material allegations in the complaint; extraneous
facts and circumstances or other matters aliunde are not
considered. The court may however consider, in addition to
the complaint, the appended annexes or documents, other
pleadings of the plaintiff, or admissions in the records.
(Philippine Daily Inquirer vs. Hon. Elmo Alameda and Luz
Cortez Babam, G.R. No. 160604, March 28, 2008)

Q: W hat is th e te s t o f sufficiency o f cause of a ctio n ?

A: The test of sufficiency of facts alleged in the complaint
as constituting a cause of action is whether or not admitting
the facts alleged, the court could render a valid verdict in
accordance with the prayer of said complaint.

jj^ C a s e L a w J

The test of sufficiency of facts alleged in the complaint

as constituting a cause of action is whether or not admitting
the facts alleged, the court could render a valid verdict in
accordance with the prayer of said complaint. Stated differently,
if the allegations in the complaint furnish sufficient basis by
which the complaint can be maintained, the same should not
be dismissed regardless of the defense that may be asserted
by the defendant. (Juana Complex I Homeowners Association,
Inc., Andres C. Bautista, Brigido Dimaculangan, Dolores P.
Prado, Imelda De La Cruz, Editha C. Dy, Florencia M. Mercado,
Leovino C. Datario, Aida A. Abayon, Napoleon M. Dimaano,
Rosita G. Estigoy And Nelson A. Loyola vs. Fil-Estate Land,
Inc., Fit Estate Ecocentrum Corporation, La Paz Housing and
344 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Development Corporation, Warbird Security Agency, Enrique

Rivilla, Michael E. Jethmal and Michael Alunan, Respondents,
G.R. No. 152272, March 5, 2012)

Q: W hat is th e n atu re of a cause of action in relation to

th e com plaint?
A: In relation to a complaint, it is a formal statement of the
operative facts that give rise to a remedial right.

Case Law:
In relation to a complaint, it is a formed statement of
the operative facts that give rise to a remedial right. The
question of whether the complaint states a cause of action
is determined by its averments regetrding the acts committed
by the defendeint. Thus, it must conteun a concise statement
of the ultimate or essential facts constituting the plaintiffs
cause of action. As such, the failure to make a sufficient
allegation of a cause of action in the complaint warrants its
dismissal. (Philippine Daily Inquirer vs. Hon. Elmo Alameda
and Luz Cortez Babaran, G.R. No. 160604, March 28, 2008)
Q: How to determ in e w h eth er th e com plaint s ta te s a
cause o f actio n ?
A: The question whether complaint states a cause of action
is determined by its averments in the complaint regarding
the acts committed by the defendant.

Case Law:

The question of whether the complaint states a cause

of action is determined by its averments regarding the acts
committed by the defendant. Thus, it m ust contain a concise
statement of the ultimate or essential facts constituting
the plaintiffs cause of action. To be taken into account are
only the material allegations in the complaint; extraneous
facts and circumstances or other matters aliunde are not
considered. (Juana Complex I Homeowners Association, Inc.,
Andres C. Bautista, Brigido Dimaculangan, Dolores P. Prado,
 CHAPTER VII 345
CAUSE OF ACTION (RULE 2)

Imelda De La Cruz, Editha C. Dy, Florencia M. Mercado,

Leovino C. Datario, Aida A. Abayon, Napoleon M. Dimaano,
Rosita G. Estigoy And Nelson A. Loyola vs. Fil-Estate Land,
Inc., Fil Estate Ecocentrum Corporation, La Paz Housing and
Development Corporation, Warbird Security Agency, Enrique
Rivilla, Michael E. Jethmal and Michael Alunan, Respondents,
G.R. No. 152272, March 5, 2012)
Q: Are annexes p a rt o f th e co m p lain t?
A: Yes. It m ust be emphasized that annexes to a complaint
are deemed part of, and should be considered together with
the complaint.

Case Law:
The non-inclusion on the face of the complaint of the
amount of the property, however, is not fatal because
attached in the complaint is a tax declaration (Annex “N” in
the complaint) of the property in question showing that it has
an assessed value of P215,320.00. It must be emphasized
that annexes to a complaint are deemed part of, and should
be considered together with the complaint. In Fluor Daniel,
Inc.-Philippines v. E.B. Villarosa and Partners Co., Ltd., this
Court ruled that in determining the sufficiency of a cause of
action, the courts should also consider the attachments to
the complaint, thus:
We have ruled that a complaint should not be dismissed
for insufficiency of cause of action if it appears clearly from
the complaint and its attachments that the plaintiff is entitled
to relief. The converse is also true. The complaint may be
dismissed for lack of cause of action if it is obvious from the
complaint and its annexes that the plaintiff is not entitled to
any relief. (Bangko Sentral ng Pilipinas vs. Feliciano P. Legaspi,
G.R. No. 205966, March 2, 2016)

Q: W hat is th e rem edy o f th e d efen d an t if th e com plaint

s ta te s no cause of a ctio n ?
A: Defendant shall file his answer and raise the ground as
an affirmative defense.
346 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:
Sec. 12, Rule 8 of th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provide for
the rules on affirmative defenses that may be raised in the
answer. It states that:
“Sec. 12. A ffirm ative defenses. — (a) A defendant
shall raise h is or her affirm ative defen ses in h is or
her answer, w hich shall be lim ited to th e reasons se t
forth under S ection 5(b), Rule 6, and th e following
grounds:
X X X X.
4. That th e pleading assertin g the claim sta te s
no cause o f action; and”

3. One S uit for a Single Cause o f Action:

Sec. 3, Rule 2 o f th e 1997 Rules of Civil Procedure,

provides for the rule on one suit for one single cause of action.
It provides that:
“Sec. 3. One su it f o r a sin gle cau se o f action.
— A party m ay n ot in stitu te m ore than one su it for a
sin gle cause o f action."

COMMENTS
Q: W hat is th e rule on th e filing o f an actio n based on
one single cause o f actio n ?
A: A party may not institute more than one suit for a single
cause of action.

4. S p littin g o f Cause o f Action:

Sec. 4, Rule 2 provides for the prohibition on the

splitting of cause of action. It states that:
“Sec. 4 . S p littin g a single cau se o f action; effect
of. — If two or m ore su its are in stitu ted on th e basis
 CHAPTER VII 347
CAUSE OF ACTION (RULE 2)

o f th e sam e cause o f action , th e filing o f one or a

judgm ent upon th e m erits in any one is available as a
ground for th e dism issal o f th e oth ers.”

COMMENTS
Q: W hat is sp littin g a cause o f actio n ?
A: It is the act of dividing a single or indivisible cause of
action into several parts or claims and instituting two or more
actions upon them. A single cause of action or entire claim or
demand cannot be split up or divided in order to be made the
subject of two or more different actions. (Catalina Chu, et al.
vs. Spouses Hernando Cunanan and Trinidad Cunanan, G.R.
No. 156185, September 12, 2011)

Q: W hat is th e rule on th e sp littin g of cause of actio n ?

A: 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.

Case Law:

Claim for damages filed by the lessee of the property

before the Regional Trial Court and an action for forcible entry
in the Metropolitan Trial Court arising from a single cause
of action. (Progressive Development Corporation vs. Court of
Appeals, 301 SCRA 637(1999])

Q: W hat is th e effect o f sp littin g o f cause of a ctio n ?

A: If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment on the
merits in any one is ground for the dismissal of the others.

Generally, a suit may only be instituted for a single cause

of action. If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment on the
348 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

merits in any one is ground for the dismissal of the others.

(George Leonard S. Umale vs. Canoga Park Development
Corporation, G.R. No. 167246, July 20, 2011)

Q: W hat is th e n atu re o f sp littin g a cause of actio n ?

A: Splitting a cause of action is a mode of forum shopping
by filing multiple cases based on the same cause of action,
but with different prayers.

|_C 5 aaejL aw J

The underlying principle of litis pendentia is the theory

that a- party is not allowed to vex another more than once
regarding the same subject matter and for the same cause of
action. Consequently, a party will not be permitted to split up
a single cause of action and make it a basis for several suits
as the whole cause must be determined in one action. To be
sure, splitting a cause of action is a mode of forum shopping
by filing multiple cases based on the same cause of action,
but with different prayers, where the ground of dismissal is
litis pendentia (or res judicata, as the case may be). (Lajave
Agricultural Management and Development Enterprises, Inc.
vs. Spouses Agustin Javellana and Florence Apilis-Javellana,
G.R. No. 223785, November 7, 2018)
Q: W hat is "Sam e Evidence T est Rule” to determ ine
id en tity of cause of actio n ?
A: It must be ascertained whether the same evidence which
is necessary to sustain the second cause of action would have
been sufficient to authorize a recovery in the first.

Case Law:

Several tests exist to ascertain whether two suits relate to

a single or common cause of action, such as whether the same
evidence would support and sustain both the first and second
causes of action (also known as the “same evidence” test), or
whether the defenses in one case may be used to substantiate
the complaint in the other. Also fundamental is the test of
 CHAPTER VII 349
CAUSE OF ACTION (RULE 2)

determining whether the cause of action in the second case

existed at the time of the filing of the first complaint. (George
Leonard S. Umale vs. Canoga Park Development Corporation,
G.R. No. 167246, July 20, 2011)

Q: W hat is th e effect if th e p lain tiff filed a com plaint

for th e recovery o f loan an d foreclosure of m ortgage
sep arately ?
A: The creditor cannot split his single cause of action by
filing a complaint on the loan, and thereafter another separate
complaint for foreclosure of the mortgage.

Case Law:

In case of a loan secured by a mortgage, the creditor has

a single cause of action against the debtor - the recovery of
the credit with execution upon the security.
The creditor cannot split his single cause of action by
filing a complaint on the loan, and thereafter another separate
complaint for foreclosure of the mortgage.
By failing to seek a deficiency judgment after its case
for recovery of possession was resolved, petitioner is barred
from instituting another action for such deficiency. Pursuant
to Section 47, Rule 39 of the 1997 Rules of Civil Procedure,
on the effect of judgments or final orders cited in the PCI
Leasing case, the judgment in Civil Case No. CEB-22294
is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto,
conclusive between the petitioner and respondents. (Central
Visayas Finance Corporation vs. Sps. Adlawan, G.R. No.
212674, March 25, 2019)

Q: W hat is th e rem edy o f th e defendant in case of

sp littin g o f cause o f a ctio n ?
A: In case a single cause of action was split into two or
more cases it will result in the dismissal of the action on the
ground of litis pendentia or barred by prior judgment.
350 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 12, Rule 15 o f th e 2019 A m endm ent to th e 1997

Rules on Civil P rocedure provides for the grounds for a
motion to dismiss. It states that:
“Sec. 12. Prohibited motions. — The following
m otions shall not be allowed:
(a) Motion to dismiss except on the following
grounds:
xxx.

2) That there is another action pending

betw een th e sam e parties for th e sam e cause; and
3) That th e cause o f action is barred by a prior
judgm ent or by th e sta tu te o f lim itation s;”

Q: Can th e co u rt m o tu proprio dism iss th e actio n in

case o f sp littin g o f cause o f actio n ?
A: Yes, in case a single cause of action was split into two or
more cases it will result in litis pendentia or barred by prior
judgment which are grounds for motu proprio dismissal of the
action.

P rocedural Basis:

Sec. 1, Rule 9 provides for the motu proprio dismissal of

the case based on litis pendentia or barred by prior judgment.
It states that:
“Sec. 1. Defenses a n d objections not pleaded.
— D efenses and objections not pleaded either in a
m otion to dism iss or in th e answer are deem ed waived.
However, w hen it appears from th e pleadings or th e
evid en ce on record th at th e court has no jurisdiction
over th e subject m atter, th at there is another action
pending betw een th e sam e parties for th e sam e cause,
or th at th e action is barred by a prior judgm ent or
by statu te o f lim itation s, th e court shall dism iss th e
claim .”
 CHAPTER VII 351
CAUSE OF ACTION (RULE 2)

Q: W hat are th e co u rses o f a ctio n of th e co u rt w hen

th e re is a com m on q u estio n o f law or fact in pending
a c tio n s?
A: When actions involving a common question of law or fact
are pending before the court, it may —
1) Order a joint hearing or trial of any or all the matters
in issue in the actions;
2) Order all the actions consolidated; and
3) It may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.

5. J o in d e r o f C auses o f A ction (Bar E xam inations

2017, 2015 an d 2012):

Sec. 5, Rule 2 o f 1997 R ules on Civil Procedure

provides for the rule on joinder of causes of action in a single
pleading against an opposing party. It states that:

MSec. 5. Join der o f cau ses o f action. — A party

m ay in one pleading assert, in th e alternative or
otherw ise, as m any ca u ses o f action as he m ay have
against an opposing party, subject to th e following
conditions:
a) The party join in g th e cau ses o f a ction shall
com ply w ith th e rules on joinder o f parties;
b) The joinder shall n ot include sp ecial civil
actio n s or action s governed by sp ecial rules;
c) Where th e cau ses o f action are betw een
th e sam e parties but pertain to different ven u es
or ju risd iction s, th e joinder m ay be allow ed in th e
Regional Trial Court provided one o f th e cau ses o f
a ction falls w ithin th e ju risd iction o f said court and
th e venue lie s therein; and
d) Where th e claim s in all th e cau ses o f action
are principally for recovery o f m oney, th e aggregate
am ount claim ed shall be th e t e s t o f jurisdiction. ”
352 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat are th e req u irem en ts for th e jo in d e r of causes
of a ctio n ?
A: 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:
1) The party joining the causes of action shall 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 all the causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (Totality Rule)

The rule on joinder of causes action under Sec. 5, Rule

2 of the 1997 Rules of Civil Procedure, as amended, requires
th a t th e jo in d e r sh all n o t include special civil actio n s
governed by special rules. Sec. 6, Rule 2 explicitly provides
that misjoinder of causes of action is not a ground for the
dismissal of the action. (Roman Catholic Archbishop of San
Fernando, Pampanga vs. Fernando Soriano, Jr., et al, G.R. No.
153829, August 17, 2011)
Q: Can an a c tio n for in ju n ctio n be jo in ed w ith a ctio n for
q uietin g o f title ?
A: No, since quieting of title or removal of clouds is a special
civil action which is not allowed under Sec. 5(b), Rule 2.
 CHAPTER VII 353
CAUSE OF ACTION (RULE 2)

Case Law:

Another noticeable area of stumble for the petitioners

related to their having joined two causes of action, i.e.,
inunction and quieting of title, despite the first being an
ordinary suit and the latter a special civil action under Rule
63. Section 5r Rule 2 of the Rules of Court disallowed such
joinder. The RTC should have severed the causes of action,
either upon motion or motu proprio, and tried them separately,
assuming it had jurisdiction over both under Section 6, Rule
2 of the Rules of Court. (Guillermo Salvador, et al. vs. Patricia,
Inc., G.R. No. 195834 November 9, 2016, Bersamin, J.)

Q: May an actio n for collectio n o f sum of m oney be

jo in ed w ith an actio n for eje c tm e n t?
A: No, since collection of money is an ordinary civil action
and ejectment case is a special civil action joinder is prohibited
under Sec. 5(b), Rule 2.

Case Law:

It must also be noted that, an action for collection of

sum of money may not be properly joined with the action for
ejectment. The former is an ordinary civil action requiring
a full-blown trial, while an action for unlawful detainer is a
special civil action which requires a summary procedure. The
joinder of the two actions is specifically enjoined by Section 5,
Rule 2 of the Rules of Court. (Lajave Agricultural Management
and Development Enterprises, Inc. vs. Spouses Agustin
Javellana and Florence Apilis-Javellana, G.R. No. 223785,
November 7, 2018)

Q: W hat are th e lim itatio n s on th e rule on jo in d e r of

cau ses o f a ctio n ?
A: Joinder of causes of actions is only allowed for ordinary
civil actions. The rule provides that a cause of action may not
be joined with:
354 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a) Special Civil Actions:

1) Interpleader (Rule 62);

2) Declaratory relief, reformation of instrument,
quieting of title, and consolidation of ownership (Rule 63);
3) Certiorari over the final judgment or orders of the
Commission on Elections or Audit (Rule 64);
4) Certiorari, prohibition and mandamus (Rule 65);
5) Petition for quo warranto (Rule 66);
6) Complaint for expropriation (Rule 67);
7) Complaint for foreclosure of real estate mortgage
(Rule 68);
8) Complaint for Partition (Rule 69);
9) Forcible Entry and Unlawful Detainer (Rule 70); and
10) Contempt (Rule 71);
11) Writ of Kalikasan;
12) Writ of continuing mandamus.

b ) S p e c ia lP ro c e c d in ^ =|

1) Probate of the will;

2) Intestate estate proceedings;
3) Escheat;
4) Trustees;
5) Guardianship of minors or incompetents and
custody of minors;
6) Adoption and Revocation of adoption;
7) Hospitalization of insane person;
8) Habeas corpus;
9) C h a n g e of N am e;
10) Declaration of absence and death;
 CHAPTER VII 355
CAUSE OF ACTION (RULE 2)

11) Correction of entries in the civil registry;

12) Insolvency proceedings;
13) Alternative dispute resolution;
14) Annulment of marriage;
15) Declaration of nullity of marriage;
16) Writs of Amparo and Habeas Data;
17) E n v iro n m e n ta l c a s e s ; a n d
18) Special Rules on Alternative Dispute Resolution.

c) J o in d e r o f Claim s in Sm all Claim s Cases:

Q: Is jo in d er o f claim s allowed u n d er th e 2016 Rules of

Procedure on Sm all Claim s C ases?
A: Yes, the plaintiff may join in a single statement of claim
one or more separate small claims against a defendant
provided it does not exceed the amount of P400.000.00
exclusive of cost and interest.

P rocedural Basis:

Sec. 8 o f th e Rules o f Procedure on Sm all Claim s (A.M.

08-8-7-SC, as amended), provides for the rule on the joinder
of one or more separate claims in one statement of claim. It
states that:
HSec. 8 . Join der o f Claims. — Plaintiff m ay join
in a sin gle sta tem en t o f claim one or m ore separate
sm all claim s against a defendant provided th a t th e
to ta l am ount claim ed, exclu sive o f in terest and
c o sts, d oes n o t exceed Two Hundred Thousand P esos
(P200,OOO.OO).”

|| 6. M isjoinder o f C au seso fA ctio n ^

Sec. 6 o f Rule 2 o f th e 1997 Rules of Civil Procedure

provides for the rule on misjoinder of causes of action. It
states that:
356 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MSec. 6 . M isjoinder o f causes o f action. —

M isjoinder o f cau ses o f action is n ot a ground for
dism issal o f an action. A m isjoined cause o f action
m ay, on m otion o f a party or on th e in itiative o f the
court, be severed and proceeded w ith separately.”

COMMENTS
Q: W hat are th e effects in case o f m isjoinder of causes
o f a c tio n ?
A: In case of misjoinder of causes of action, it has the
following effects, to wit:
a) It is not a ground for dismissal of an action;
b) It may on motion of a party or on the initiative of the
court, be severed and proceeded with separately.

Case Law:

The rule on joinder of causes action under Sec. 5,

Rule 2 of the 1997 Rules of Civil Procedure, as amended,
requires that the joinder shall not include special civil actions
governed by special rules. Sec. 6, Rule 2 explicitly provides
th a t m isjoinder of cau ses o f actio n is n o t a ground for th e
dism issal o f th e action. (Roman Catholic Archbishop of San
Fernando, Pampanga vs. Fernando Soriano, Jr., et al, G.R. No.
153829, August 17, 2011)
 CHAPTER VIII

PARTIES IN GENERAL (RULE 3)

1. P arties in Civil of Action: *1

Sec. 1, Rule 3 o f th e 1997 Rules o f Civil Procedure

provides for the rule on the parties in a civil action. The rules
provide that:
"Sec. 1. Who m ay be p a rties; p la in tiff and
defendant. — Only natural or juridical persona, or
e n titie s authorized by law m ay be parties in a civil
action. The term ‘plaintifT m ay refer to th e claim ing
party, th e counter-claim ant, th e cross-claim ant,
or th e third (fourth, etc.)-party plaintiff. The term
‘defendant’ m ay refer to th e original defending party,
th e defendant in a counterclaim , th e cross-defendant,
or th e third, (fourth, etc.j-party defendant.”

COMMENTS
Q: Who m ay be p artie s in a civil actio n ?
A: The following are the parties in a civil action:
1) Natural persons;
2) Juridical persons; or
3) Entities authorized by law may be parties in a civil
action.

Q: W hat are th e e n titie s au th o rized by law to be p arties

in civil actio n ?
A: The “entities authorized by law”who may be parties in a
civil action are:
357
358 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1) State or its political subdivision;

2) Labor organizations;
3) Partnerships by estoppel (Art. 1825, New Civil Code);
or
4) Corporation by estoppel (Sec. 21, Corporation Code)]
5) Foreign corporations, according to the Intellectual
Property Code, even though not engaged in business in the
Philippines may nevertheless bring a civil or administrative
action for opposition, cancellation, infringement, unfair
competition, or false designation of origin and false description,
whether or not it is licensed to do business in the Philippines
under existing laws. (Sec. 160, R.A. 8293)

Q: Do re sid e n t m arine m am m als possess legal stan d in g

to pu rsu e a civil actio n ?
A: No, the need to give the Resident Marine Mammals legal
standing has been eliminated in the Rules, which allow any
Filipino citizen, as a steward of nature, to bring a suit to
enforce our environmental laws.

As to standing, the Court declined to extend the principle

of standing beyond natural and juridical persons, even though
it recognized that the current trend in Philippine jurisprudence
“moves towards simplification of procedures and facilitating
court access in environmental cases.” Instead, the Court
explained, “the need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules, which allow
any Filipino citizen, as a steward of nature, to bring a suit to
enforce our environmental laws. (Resident Marine Mammals
o f the Protected Seascape Tanon Strait vs. Sec. Angelo Reyes,
G.R. No. 180771, April 21, 2015)

Q: W hat Is th e “principle o f stan d in g beyond n atu ral

an d juridical p erso n s”?
A: A “standing” or a right to pursue a case which is extended
to a certain type of parties who has the right to file the action
or the right to challenge the policies of the State.
 CHAPTER VIII 359
PARTIES IN GENERAL (RULE 3)

Q: Who are covered by th e te rm “p erso n ” u n d er th e

2016 Revised Rules on Sm all Claim s C ases?
A: Person is an individual, corporation, partnership, limited
liability partnership, association, or other juridical entity en­
dowed with personality by law. (Sec. 4[d], o f A.M. No. 08-8-7,
as amended, Revised 2016 Rules on Small Claims)

Q: Who are included u n d er th e term “plaintiff” u nder

th e R ules?
A: The term plaintiff may refer to the following:
a) Claiming party;
b) Counter-claimant;
c) Cross-claimant;
d) Third (fourth, etc.) party-plaintiff; or
e) It may also include plaintiff intervenor

Q: Who is th e p lain tiff u n d er th e Rules on Sm all Claims

C ases?
A: Plaintiff refers to the party who initiated a small claims
action. The term includes a defendant who has filed a
counterclaim against plaintiff.

P rocedural Basis:

Sec. 4 o f A.M. No. 08-8-7-SC, as amended otherwise

known as the Revised 2016 Rules o f Procedure for Small
Claim s Cases provides for the definition of a plaintiff. It states
that:
“Sec. 4. Definition o f Terms. — For purposes of
th is Rule:
(a) P la in tiff refers to th e party who in itiated a
sm all claim s action. The term includ es a defendant
who has filed a counterclaim against plaintiff; x x x ”
360 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Who are covered u n d er th e te rm “d efen d an t”?

A: The term “defendant” may refer to the following:
a) Original defending party;
b) Defendant in a counterclaim;
c) Cross-defendant; or
d) Third, (fourth, etc.) party-defendant.

Q: Who is a d efen d an t u n d er th e Rules on Sm all Claims

C ases?
A: Defendant is the party against whom the plaintiff has
filed a small claims action. The term includes a plaintiff
against whom a defendant has filed a claim, or a person who
replies to the claim. (Sec. 4[b] ofA.M. No. 08-8-7, as amended,
Revised 2016 Rules on Small Claims)

Q: W hat are th e classificatio n s o f p a rtie s in a civil

a ctio n ?
A: Parties in a civil action may be classified as follows, to
wit:
a) Real Parties in interest (Sec. 2, Rule 3);
b) Representative parties (Sec. 3, Rule 3);
c) Indispensable parties (Sec. 7, Rule 3);
d) Necessary parties. (Sec. 8, Rule 3)

||^ 2 ^ J R e a l^ a rtie s -in -In ^

Sec. 2, Rule 3 o f th e 1997 Rules on Civil Procedure

provides for the rule and definition of real parties-in-interest.
It states that:
“Sec. 2 . Parties-in-interest. — A real party in
in terest is th e party who stan ds to be b enefited or
injured by th e judgm ent in th e su it, or th e party
e n titled to th e avails o f th e su it. U nless otherw ise
authorized by law or th e se Rules, every action m ust
be prosecuted or defended in th e nam e o f th e real
party in in terest.”
 CHAPTER VIII 361
PARTIES IN GENERAL (RULE 3)

COMMENTS
Q: Who is a real p arty -in -in te rest?
A: A real p arty -in -in te rest is the party who stands to be
benefited or injured by the judgment in the suit, or 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.

Case Law:

As held in Carandang vs. Heirs o f De Guzman, the Court

clarified that:
A real party-in-interest is the party who stands to be
benefited or injured by the judgment of the suit, or the
party entitled to the avails of the suit. On the other hand,
an indispensable party is a party in interest without whom
no final determination can be had of an action, in contrast
to a necessary party, which 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. (Spouses Ceferino C. Laus and Monina P. Laus and
Spouses Antonio O. Koh and Elisa T. Koh vs. Optimum
Security Services, Inc., G.R. No. 208343, February 3, 2016)
Q: Who m ay p ro secu te o r defend a civil a ctio n ?
A: Every action must be prosecuted and defended in the
name of the real party-in-interest,

Case Law:
Every action must be prosecuted and defended in the
name o f the real party-in-interest, i.e., the party who stands
to be benefited or injured in the judgment in the suit, or the
party entitled to the avails of the suit. A case is dismissible for
lack of personality to sue upon proof that the plaintiff is not
the real-party-interest, hence grounded on failure to state a
cause of action. (Allan C. Go vs. Mortimer F. Cordero, G.R. No.
164703, May 4, 2010)
362 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e req u irem en ts for th e p arty to be a real

p arty -in -in te rest?
A: The party m ust be a real party-in-interest, and he must
prosecute the action under his name.

I^ C a s e ^ L a w J

T h e ru le o n re a l p a r tie s in in te r e s t h a s tw o r e q u ir e m e n ts ,
namely: (a) to institute an action, the plaintiff m ust be the
real party-in-interest; and (b) the action m ust be prosecuted
in the name of the real party-in-interest. Interest within the
meaning of the Rules of Court means material interest or an
interest in issue to be affected by the decree or judgment
of the case, as distinguished from mere curiosity about the
question involved. One having no material interest cannot
invoke the jurisdiction of the court as the plaintiff in an
action. When the plaintiff is not the real party in interest, the
case is dismissible on the ground of lack of cause of action. In
Sps. Oco vs. Limbaring, the Court expounded on the purpose
of this rule, to wit:
Necessarily, the purposes of this provision are: 1) to
prevent the prosecution of actions by persons without any
right, title or interest in the case; 2) to require that the actual
party entitled to legal relief be the one to prosecute the action;
3) to avoid multiplicity of suits; and 4) discourage litigation
and keep it within certain bounds, pursuant to public policy.
(Andy Ang vs. Severino Pacunio, et al., G.R. No. 208928, July
8, 2015)
Q: W hat is th e m eaning o f " in te re s t” m en tio n ed u n d er
Sec. 2 ?
A: “Interest,” within the meaning of the rule, means material
interest, an interest in the issue and to be affected by the
decree.
 CHAPTER VIII 363
PARTIES IN GENERAL (RULE 3)

Case Law:

Sec. 2, Rule 3 of the Rules of Court requires that every

action must be prosecuted and defended in the name of the
real party-in-interest. The real party-in-interest is the party
who stands to be benefited or injured by the judgment or the
party entitled to the avails of the suit.
“Interest, "within the meaning of the rule, means material
interest, an interest in the issue and to be affected by the
decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. Cases construing the
real party-in-interest provision can be more easily understood
if it is borne in mind that the true meaning of real party-in-
interest may be summarized as follows: An action shall be
prosecuted in the name of the party who, by the substantive
law, has the right sought to be enforced. To qualify a person
to be a real party-in-interest in whose name an action must
be prosecuted, he must appear to be the present real owner
of the right sought to be enforced. (Republic vs. Heirs of Diego
Lim, et al., G.R. No. 195611, April 18, 2016)
Q: Who is th e real p arty -in -in te rest in q u estioning th e
validity of a c o n tra c t en te re d in to by th e City M ayor?
A: The real party-in-interest which may file a case,
questioning the validity of a contract entered into by the city
mayor, who is alleged to have no authority to do so, is the city
itself.

Case Law:

The dismissal by the trial court of the complaint due

to petitioners’ lack of personality to file suit is erroneous.
Petitioners, as members of the City Council of Cagayan De
Oro, may file a case to question a contract entered into by the
city mayor allegedly without the City Council’s authority.
The real party in interest which may file a case,
questioning the validity of a contract entered into by the city
mayor, who is alleged to have no authority to do so, is the
364 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

city itself. It is the local government unit which stands to be

injured or benefited by any judgment that may be made in
this case. The city councilors merely represent the city in the
suit.
City councilors may file a suit for the declaration of nullity
of a contract on the basis that the city mayor had no authority
to do so because the city mayor’s authority to bind the city to
obligations must emanate from the City Council. Under Title
III, Chapter III, Article I, Section 455(b)(l)(vi) of Republic Act
No. 7160, otherwise known as the Local Government Code,
the city mayor may sign all bonds, contracts, and obligations
on behalf of a city only upon authority of the sangguniang
panlungsod or pursuant to law or ordinance.
As the City Council is the source of the mayor’s power to
execute contracts for the city, its members have the authority,
interest, and even duty to file cases in behalf of the city to
restrain the execution of contracts entered into in violation of
the Local (Government. Teodulfo E. Lao vs. LGU o f Cagayan De
Oro City, G.R. No. 187869, September 13, 2017)

Q: Is an a tto rn e y in fact ap p o in ted by th e p a rty to file

and p ro secu te th e case a real p arty -in -in te rest?
A: No, he is not a real party in interest since he does not
stand to be benefited or injured by any judgment therein, and
he was merely appointed as an attorney-in-fact for the limited
purpose of filing and prosecuting the complaint against the
respondents.

Case Law:
Interest within the meaning of the Rules of Court means
material interest or an interest in issue to be affected by the
decree or judgment of the case, as distinguished from mere
curiosity about the question involved. A real party-in-interest
is the party who, by the substantive law, has the right sought
to be enforced.
Applying the foregoing rule, it is clear that Atty. Aceron
is not a real party-in-interest in the case below as he does not
stand to be benefited or injured by any judgment therein. He
 CHAPTER VIII 365
PARTIES IN GENERAL (RULE 3)

was merely appointed by the petitioners as their attorney-

in-fact for the limited purpose of filing and prosecuting the
complaint against the respondents. Such appointment,
however, does not mean that he is subrogated into the rights
of petitioners and ought to be considered as a real party-in­
interest. (Theodore and Nancy Ang, represented by Eldrige
Marvin B. Ceron vs. Spouses Alan and Em Ang, G.R. No.
186993, August 22, 2012)
Q: W hat is th e req u irem en t for a person to be a real
party- in -in te re st in th e actio n ?
A: To be properly considered as such, the party must have
a real, actual, material, or substantial interest in the subject
matter of the action, not a mere expectancy or a future,
contingent, subordinate, or consequential interest.

Case Law:

Unless otherwise authorized by law or the Rules of

Court, every action m ust be prosecuted and defended
in the name of the real party-in-interest. The Rules of
Court defines a real p a rty -in -in te re s t as “the party who
stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit.” To be
properly considered as such, th e p a rty m u st have a real,
a ctu a l, m aterial, or su b sta n tia l in te re st in th e su b jec t
m a tte r o f th e actio n , NOT a mere expectancy or a future,
contingent, subordinate, or consequential interest.
Republic Act No. 6657 in relation with Sec. 3 of the
Rules of Court expressly allows farmers, farmworkers,
tillers, cultivators, etc., organizations and associations,
Through their leaders, to represent their members in
any proceedings before the DAR. It m ust be pointed out,
however, that the law should be harmonized with the
interest requirement in bringing actions and suits. In other
words, while organizations and associations may represent
their members before the DAR, these members m ust have
such real, actual; material, or substantial interest in the
subject matter of the action, NOT merely an expectancy, or
366 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a future contingent interest. (Samahan ng Magsasaka at

Mangingisda ng Sitio Naswe, Inc. vs. Tomas Tan, G.R. No.
196028, April 18, 2016)
Q: W hat is th e te s t to determ in e th e in te re st of a p arty ?
A: Whether a party has alleged such a personal stake in the
outcome of the controversy.

Case Law:

The gist of the question of standing is whether a party

has “alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional
questions.” (Baker v. Carr, 369 U.S. 186, 7 L.Ed. 2d 633 cited
in, among others, Agan, Jr. vs. PIATCO, G.R. Nos. 155001,
155547 and 155661, May 5, 2003 and Farinas vs. Executive
Secretary, G.R. Nos. 147387 and 152161, December 10, 2003)
Q: W hat in te re st is necessary to assail th e
co n stitu tio n ality of a law o r governm ent ac t?
A: The interest of a party assailing the constitutionality of
a statute must be direct and personal, and must show that
only the law or any government act is invalid but also, he will
sustain an imminent danger.

Case Law:

Accordingly, it has been held that the in te re st o f a party

assailing the constitutionality of a statute m u st be d irect and
personal. Such p arty m u st be able to show, n o t only th a t
th e law or any governm ent a c t is invalid, b u t also th a t
he has su stain ed or is in im m in en t danger of sustaining
som e d ire ct injury as a resu lt o f its enforcem ent, and n o t
m erely th a t h e suffers th ereb y in som e indefinite way. It
must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.
 CHAPTER VIII 367
PARTIES IN GENERAL (RULE 3)

(Agan, Jr. vs. PIATCO, supra; Province ofBatangas vs. Alberto

G. Romulo, G.R. No. 152774, May 27, 2004)
Q: Who is th e real p arty -in -in te rest in a p e titio n for
review on c ertio rari u n d er Rule 4 5 ?
A: The “party” referred to in [Rule 45] is the original party in
the main case aggrieved by the order or decision.

Case Law:

The Court has previously held that the “p arty ”

referred to in [Rule 45] is th e original p arty in th e m ain
case aggrieved by th e o rd er o r decision. Hence, only the
aggrieved original party in the main case is the only proper
party as petitioner. One who has not been an original party
in the main case has no personality to file a petition under
said rule. (City Government ofTuguegarao vs. Ting, G.R. Nos.
192435-36, September 14, 2011)

a) Real P arty -in -In terest in E n vironm ental Cases

Q: Who is th e real p a rtie s-in -in terest in environm ental

cases?
A: Any real party-in-interest, including the government
and juridical entities authorized by law, may file a civil action
involving the enforcement or violation of any environmental
law.

Procedural Basis:

Sec. 4, P art II o f A.M. No. 09-6-08 on the Rules of

P rocedure in E nv iro n m en tal Cases provides for the parties-
in -interest who may file an action for the enforcement or
violation of environmental law. It states that:
“Sec. 4. Who m ay f ile . —Any real party in in terest,
including th e governm ent and juridical e n titie s
authorized by law, m ay file a civil action involving
th e enforcem ent or violation o f any environm ental
law .”
368 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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b) Real P arty -in -In terest in C itizen’s S uit in

E nvironm ental Cases

Q: Who is th e real p arties-in -in terest in a c itizen ’s su it

in environm ental cases?
A: Any Filipino citizen in representation of others, including
minors or generations yet unborn, may file an action to
enforce rights or obligations under environmental laws.

Procedural Basis:

Sec. 5, P art II of A.M. No. 09-6-08 on the Rules of

Procedure in E nvironm ental Cases provides for the rule
on real parties in interest in citizen’s suit involving the
enforcement and violation of environmental law. It states
that:
“Sec. 5. Citizen suit. — Any Filipino citizen in
representation of others, including m inors or genera­
tio n s y e t unborn, m ay file an action to enforce rights
or obligations under environm ental laws. Upon th e
filing of a citizen su it, th e court shall issu e an order
w hich shall contain a brief description o f th e cause
o f action and th e reliefs prayed for, requiring all in­
terested parties to m anifest their in terest to inter­
ven e in th e case w ithin fifteen (15) days from n otice
thereof. The plaintiff m ay publish th e order once in a
newspaper o f a general circulation in th e Philippines
or furnish all affected barangays cop ies o f said order.
C itizen su its filed under R.A. No. 8 7 4 9 and
R.A. No. 9 0 0 3 shall be governed by their respective
provisions.”

c) Real P arty -in -In terest in Civil F orfeiture Proceedings:

Q: Who is th e real p arties-in -in terest in a civil forfeiture

proceeding?
A: The Republic of the Philippines, through the Anti-Money
Laundering Council, represented by the Office of the Solicitor
General, may institute actions for civil forfeiture.
 CHAPTER VIII 369
PARTIES IN GENERAL (RULE 3)

P rocedural Basis:

Sec. 2, Part II of A.M. No. 05-11-04 on the Rules of

Procedure in cases of civil forfeiture, assets preservation,
and freezing of monetary instrument, property, or proceeds
representing, involving, or relating to an unlawful activity or
money laundering offense under Republic Act No. 9160, as
amended, provides for the parties who may initiate an action
for forfeiture. It states that:

“Sec. 2. P arty to in stitu te proceedings. — The

Republic o f the Philippines, through th e Anti-M oney
Laundering Council, represented by th e Office o f
th e S olicitor General, m ay in stitu te actio n s for
civil forfeiture, a sse ts preservation, and freezing
o f m onetary instrum ent, property, or proceeds
representing, involving, or relating to an unlawful
a ctiv ity or m oney laundering offen se.”

d) Real P arty -in -In terest in a D erivative Suit:

Q: Who is th e real p a rtie s-in -in terest in a derivative

su it?
A: In a derivative suit, the corporation is the real party-in­
interest.

Case Law:

In a derivative suit, the corporation is the real party-in-

interest while the stockholder filing suit for the corporation’s
behalf is only a nominal party, the corporation should
therefore be included as a party in the suit. (Santiago Cua,
Jr., et al. vs. Miguel Ocampo Tan, et al., G.R. Nos. 181455-56,
December 4, 2009)
370 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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e) Rem edy if th e Case is In stitu te d by a Person n o t by

a Real Party-in-Interest:_________________________

Q: W hat is th e rem edy if th e case is in s titu te d by a

person n o t a real p arty -in -in terest?
A: The remedy of the defendant is to file an answer and
raise the ground of failure to state a cause of action as an
affirmative defense.

Procedural Basis:

Sec. 12, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provide for
the rules on affirmative defenses that may be raised in the
answer. It states that:
“Sec. 12. A ffirm ative defenses. — (a) A defendant
shall raise h is or her affirm ative d efen ses in h is or
her answer, w hich shall be lim ited to th e reasons se t
forth under Section 5(b), Rule 6 , and th e following
grounds:
X X X X.

4. That th e pleading asserting th e claim sta tes

no cause o f action; and”

Q: W hat is th e effect if th e actio n was prosecuted by a

person n o t a real p arty -in -in terest?
A: A case is dismissible for lack of personality to sue upon
proof that the plaintiff is not the real party-in-interest, hence
grounded on failure to state a cause of action.

Case Law:

Every action must be prosecuted and defended in the

name of the real party-in-interest, i.e., the party who stands
to be benefited or injured in the judgment in the suit, or the
party entitled to the avails of the suit. A case is dism issible
for lack o f perso n ality to sue upon proof th a t th e plaintiff
is n o t th e real p arty -in -in terest, hence grounded on
 CHAPTER VIII 371
PARTIES IN GENERAL (RULE 3)

failure to s ta te a cause o f action. (Allan C. Go vs. Mortimer

F. Cordero, G.R. No. 164703, May 4, 2010)

M otu P ro p rlo D ism issal for Failure to S ta te a Cause

o f A ction u n d er th e Rules on Sum m ary Procedure:

Q: May th e case be d ism issed m o tu p r o p r io if th e

co m p lain t fails to s ta te a cause o f a ctio n u n d er th e Rules
on Sum m ary P rocedure?
A: Yes, upon an examination of the allegations therein and
such evidence as may be attached thereto, the court may
dismiss the case outright on any of the grounds apparent
therefrom for the dismissal of a civil action.

P rocedural Basis:

S ec. 4 o f th e R ules o n S u m m ary P ro ced u re provides

for the motu proprio dism issal of the case based on any
grounds for the dism issal of the action under the rules. It
states that:
“Sec. 4. Duty o f court. — After th e court
determ in es that th e case falls under sum m ary
procedure, it m ay, from an exam ination o f th e
allegations therein and su ch evid en ce as m ay be
attach ed th ereto, d ism iss the case outright on any of
th e grounds apparent therefrom for th e dism issal o f a
civil actio n .”

g) M otu P ro p rio D ism issal for Failure to S ta te a

Cause o f A ction u n d er th e 2016 Revised Rules
on Sm all Claim Case:

Q: May th e c o u rt m o tu p r o p r io dism iss a sm all claim s

case b ased on failure to s ta te a cause of a ctio n ?
A: Yes, from an examination of the allegations of the
Statement of Claim/s and such evidence attached thereto, by
itself dismiss the case outright on any of the grounds for the
dismissal of the case.
372 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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Procedural Basis:

Sec. 11 o f th e Rules on Sm all Claims Cases (A.M.

No. 08-8-7-SC, as amended) provides for the motu proprio
dismissal of the case on any of the grounds for dismissal. It
states that:
“Sec. 11. D ism issal o f th e Claim. — After th e
court determ ines th at th e case falls under th e se Rules,
it may, from an exam ination of th e allegations o f the
Statem ent o f C laim /s and such evidence attached
thereto, by itself, dism iss the case outright on any of
th e grounds for th e dism issal o f th e case. The order of
dism issal shall state if it is with or w ithout prejudice,
x x x”

h) Rem edy of th e D efendant in case th e C om plaint

Fails to S tate a Cause of A ction u nder th e Rules on
Sum m ary Procedure:____________________________

Q: W hat is th e rem edy o f th e d efendant in case th e com ­

plain t fails to s ta te a cause of actio n under th e Rules on
Sum m ary Procedure?
A: Under the rules, defendant may within ten (10) days
from service of summons, file his answer to the complaint
and raising the ground as an affirmative defense.

Procedural Basis:

Sec. 5, Rule 16 of th e Rules on Sum m ary Procedure

provides for the remedy in case affirmative defenses available
to the defendant. It states that:
“Sec. 5. Answer. — Within ten (10) days from
service o f sum m ons, th e defendant shall file his
answer to th e com plaint and serve a copy thereof on
th e plaintiff. Affirmative and negative defen ses not
pleaded therein shall be deem ed waived, except for
lack o f jurisdiction over th e subject m atter.”
 CHAPTER VIII 373
PARTIES IN GENERAL (RULE 3)

i) Possible Rem edy o f th e P lain tiff in Case

C om plaint Fails to S ta te a Cause of Action:

Q: W hat is th e rem edy o f th e p lain tiff in case his

com p lain t fails to s ta te a cause o f actio n ?
A: A party may amend his pleading once as a matter of right
at any time before a responsive pleading is served.

P rocedural Basis:

Sec. 2, Rule 10 provides for rule on the amendment

of the complaint as a m atter of right before the filing of
a responsive pleading of by impleading the real party-in­
interest. It provides that:
“Sec. 2. A m endm ents a s a m a tter o f right. —
A party m ay am end hla pleading once as a m atter
o f right at any tim e before a responsive pleading is
served or, in th e case o f a reply, at any tim e w ithin
ten (10) days after it is served.”

j) Possible Rem edy o f th e P lain tiff in Case th e

C om plaint is dism issed for Failure to S ta te a Cause
o f Action:

Q: W hat is th e rem edy o f th e p lain tiff in case his

com p lain t is dism issed for failure to s ta te a cause of
a ctio n ?
A: The remedy of the of the plaintiff is to re-file the action
since the order of dismissal is without prejudice to the refiling
of the action and which is not appealable under Sec. 1, Rule
41.

P rocedural Basis:

Sec. 13, Rule 15 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on dismissal of action or claim with prejudice to its
refiling. It states that:
374 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

uSec. 13. D ism issal w ith prejudice. — Subject

to th e right o f appeal, an order granting a m otion to
dism iss or an affirm ative defense that th e cause o f
action is barred by a prior judgm ent or by th e statu te
o f lim itations; that the claim or demand s e t forth
in th e plaintiff’s pleading has been paid, waived,
abandoned or otherw ise extinguished; or that the
claim on w hich th e action is founded is unenforceable
under th e provisions o f th e statu te o f frauds, shall bar
th e refiling o f th e sam e action or claim .”

R epresentatives as Parties:

Sec. 3, Rule 3 of th e 1997 Rules on Civil Procedure

provides for the rule on representatives as parties. It states
that:
"See. 3. R epresentatives a s pa rties. — Where
th e action is allowed to be prosecuted or defended
by a representative or som eone acting in a fiduciary
capacity, th e beneficiary shall be included in the
title o f th e case and shall be deem ed to be the real
party-in-interest. A representative m ay be a trustee
o f an express trust, a guardian, an executor or
adm inistrator, or a party authorized by law or th ese
Rules. An agent acting in his own nam e and for th e
benefit o f an undisclosed principal m ay sue or be
sued w ithout joining th e principal excep t when th e
contract involves thin gs belonging to th e principal.”

COMMENTS
Q: Who is a rep resen tativ e p arty ?
A: 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.
Q: Who m ay a c t as a rep resen tativ e p arty ?
A: A representative may be the following:
1) A trustee of an express trust;
 CHAPTER VIII 375
PARTIES IN GENERAL (RULE 3)

2) Guardian;
3) Executor or administrator; or
4) A party authorized by law or these Rules;
5) 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.
Q: Is a rep resen tativ e o f th e principal a real party-in-
in te re s t?
A: No, the rule simply states that, in actions which are
allowed to be prosecuted or defended by a representative, the
beneficiaiy shall be deemed the real party-in-interest and,
hence, should be included in the title of the case.

Case Law:

Nowhere in the rule cited above is it stated or, at the very

least implied, that the representative is likewise deemed as
the real party-in-interest. The said rule simply states that,
in actions which are allowed to be prosecuted or defended
by a representative, the beneficiary shall be deemed the real
party-in-interest and, hence, should be included in the title
of the case.
Indeed, to construe the express requirement of residence
under the rules on venue as applicable to the attorney-in-
fact of the plaintiff would abrogate the meaning of a “real
party-in-interest,” as defined in Sec. 2 of Rule 3 of the 1997
Rules of Court ins-a-vis Section 3 of the same Rule. (Theodore
and Nancy Ang, represented by Eldrige Marvin B. Ceron vs.
Spouses Alan and Em Ang, respondents, G.R. No. 186993,
August 22, 2012)

|| a) R ep resen tativ e P arty^ina^Citizen SuitT

Q: Who m ay file a citizen su it?

A: Any Filipino citizen in representation of others, including
minors or generations yet unborn, may file an action to
enforce rights and obligations under environmental laws.
376 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:
Sec. 5, P art II of A.M. No. 09-6-08 on the Rules of
Procedure in E nvironm ental Cases provides for the parties
in interest who may file a citizen su it to enforce rights and
obligations under environmental laws. It states that:
"Sec. 5. Citizen suit. — Any Filipino citizen
in representation o f others, including m inors or
generations y e t unborn, m ay file an action to enforce
rights and obligations under environm ental laws, x x * 1

4. Spouse as Parties:

Sec. 4, Rule 3 of th e 1997 Rules on Civil Procedure

provides for the rule on spouses as parties to the action. It
states that:
"Sec. 4. Spouses a s p a rties. — Husband and wife
shall sue or be sued join tly, excep t as provided by
law” (otherwise known as th e pro-forma parties).”

COMMENTS
Q: W hat is th e rule in case of spouses as p artie s to th e
actio n ?
A: Action may be prosecuted jointly by or against:
1) Jointly by husband and wife;
2) Except as provided by law.

Q: When can a spouse sue or be sued independently as

an exception as provided by law?
A: A spouse can be sued independently of the other spouse
in the following instances as provided by law to wit:
1) Action involving the exclusive property of the
spouse, to wit:
 CHAPTER VIII 377
PARTIES IN GENERAL (RULE 3)

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 by exchange with property belonging to only one of
the spouses; and
d) That which is purchased with exclusive money of
the wife or of the husband. (Art. 109 o f the New Civil Code)1

5. M inor o r In co m p eten t Persons:

Sec. 5, Rule 3 o f th e 1997 Rules on Civil P rocedure

provides for the rule in case of minor or incompetent as
parties to the action. It states that:
“Sec. 5. Minor or incom petent persons. — A
m inor, or a person alleged to be in com p eten t, m ay sue
or be sued w ith th e a ssista n ce o f h is father, m other,
guardian, or if he has none, a guardian a d litem."

COMMENTS
Q: W hat is th e rule in case a p a rty is a m inor or incom ­
p e te n t?
A: A minor or a person alleged to be incompetent, may sue
or be sued with the assistance of the following representative:
1) His father;
2) Mother;
3) Guardian; or
4) If he has none, a guardian ad litem.

6. P erm issive Jo in d e r o f P arties (Bar E xam inations

2017, 2 0 1 6 and 2010):

Sec. 6, Rule 3 o f th e 1997 Rules on Civil Procedure

provides for the rule on permissive joinder of parties to the
action. It states that:
378 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 6. Perm issive Joinder o f p a rties. — All

persons in whom or against whom any right to relief
in respect to or arising out o f th e sam e transaction
or series o f transactions is alleged to e x ist w hether
join tly, severally, or in th e alternative, m ay, excep t as
otherw ise provided in th e se Rules, join as plaintiffs or
be joined as defendants in one com plaint, where any
question of law or fact com m on to all such plaintiffs or
to all such defendants m ay arise in th e action; but th e
court m ay m ake such orders as m ay be ju st to prevent
any plaintiff or defendant from being embarrassed or
put to expense in con n ection w ith any proceedings in
w hich he m ay have no in terest.”

COMMENTS
Q: W hat are th e req u irem en ts for th e perm issive jo in d er
of p artie s?
A: 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
action;
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.

7. Com pulsory Jo in d e r o f Indispensable P arties

(Bar E xam ination 2019):

Sec. 7, Rule 3 o f th e 1997 Rules on Civil Procedure

provides for the rule on joinder of indispensable parties to the
action. It states that:
 CHAPTER VIII 379
PARTIES IN GENERAL (RULE 3)

“Sec. 7. Compulsory jo in d e r o f indispen sable

p a rtie s. — Parties in in terest w ithout whom no final
determ ination can be had o f an action shall be joined
eith er as plaintiffs or d efen dants.”

COMMENTS
Q: Who is an indispensable p a rty ?
A: Indispensable parties are parties-in-interest without
whom no final determination can be had of an action.

Case Law:

By definition, an indispensable party is a party-in­

interest without whom no final determination can be had
of an action, and who shall be joined either as plaintiffs or
defendants. It is a party whose interest will be affected by
the court’s action in the litigation. (Rosario Enriquez Vda. De
Santiago vs. Antonio T. Vilar, G.R. No. 225309, March 6, 2018)
Q: W hat is th e n atu re o f jo in d er o f indispensable p arty ?
(Bar E xam ination 2019)
A: Settled is the rule that joinder of indispensable parties
is compulsory being a sine qua non for the exercise of judicial
power, otherwise all subsequent action of the court is null and
void and the case should be dismissed for want of authority.

Case Law:

The general rule with reference to the making of parties in

a civil action requires the joinder of all indispensable parties
under any and all conditions, their presence being a sine qua
non of the exercise of judicial power. (Borlasa vs. Polistico, 47
Phil. 345, 348) For this reason, our Supreme Court has held
that when it appears of record that there are other persons
interested in the subject matter of the litigation, who are
not made parties to the action, it is the duty of the court to
suspend the trial until such parties are made either plaintiffs
or defendants. (Pobre, et al. vs. Blanco, 17 Phil. 156). x x x
Where the petition failed to join as party defendant the person
380 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

interested in sustaining the proceeding in the court, the same

should be dismissed, x x x When an indispensable party is
not before the court, the action should be dismissed. (People,
et al. vs. Rodriguez, et al, G.R. Nos. L-14059-62, September
30, 1959) (sic) (Philip L. Go, Pacifico Q. Lim and Andrew Q. Lim
vs. Distinction Properties Development and Construction, Inc.,
G.R. No. 194024, April 25, 2012)
Q: W hat is th e purpose o f im pleading an indispensable
party ?
A: The presence of indispensable parties is necessary to
vest the court with jurisdiction, thus, without their presence
to a suit or proceeding, the judgment of a court cannot attain
real finality.

Case Law:

The nature of the solidary obligation under the

surety does not make one an indispensable party. An
indispensable party is a party-in-interest without whom no
final determination can be had of an action, and who shall
be joined mandatorily either as plaintiffs or defendants.
The presence of indispensable parties is necessary to vest
the court with jurisdiction, thus, without their presence to
a suit or proceeding, the judgment of a court cannot attain
real finality. The absence of an indispensable party renders
all subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even as
to those present. (Living @ Sense, Inc. vs. Malayan Insurance
Company, Inc., G.R. No. 193753, September 26, 2012)

Q: Will a p arty be considered as a real party-in-interest

if h is in te re st in th e controversy or subject m a tte r is
separable from th e in te re st o f o th er p arties?
A: No. A person is not an indispensable party, if his interest
in the controversy or subject matter is separable from the
interest of other parties where he will not be affected by a
decree.
 CHAPTER VIII 381
PARTIES IN GENERAL (RULE 3)

Case Law:

A person who is n o t an indispensable party, if his

in te re st in th e controversy or subject m a tte r is separable
from th e in te re st o f o th e r p arties, so th a t it will n o t
necessarily be directly o r injurious affected by a decree
w hich does com plete ju stic e betw een them . Also, a person
is not indispensable party if his presence would merely permit
a complete relief between him and those already parties to
the action. Or if he has no interest in the subject matter
of the action. It is not sufficient reason to declare a person
indispensable party that his presence will avoid multiple
litigation. (Aquilino Pimentel, Jr., et al. vs. Senate Committee
o f the Whole, G.R. No. 187714, March 8, 2010)
Q: Who h as th e burden o f proving th e presence of
indispensable party ?
A: The burden of procuring the presence of all indispensable
parties is on the plaintiff.

Case Law:

“Parties in interest without whom no final determination

can be had of an action shall be joined either as plaintiffs
or defendants. (Sec. 7, Rule 3, Rules of Court) The burden
of procuring the presence of all indispensable parties is on
the plaintiff. (39 Amjur [sic] 885) The evident purpose of the
rule is to prevent the multiplicity of suits by requiring the
person arresting a right against the defendant to include with
him, either as co-plaintiffs or as co-defendants, all persons
standing in the same position, so that the whole matter in
dispute may be determined once and for all in one litigation.
(Palarca vs. Baginsi, 38 Phil. 177, 178; Philip L. Go, Pacifico Q.
Lim and Andrew Q. Lim vs. Distinction Properties Development
and Construction, Inc., G.R. No. 194024, April 25, 2012)

Q: Will non-joinder o f indispensable p arty a ground for

o u trig h t dism issal o f th e actio n ?
A: No. Failure to implead any of the indispensable party will
not result to outright dismissal, remedy is to implead them
382 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

and in case of failure to comply with the order of the court

dismissal under Sec. 3, Rule 17 is allowed.

Case Law:

Nevertheless, it must be stressed that the failure to

implead any indispensable party to a suit does not necessarily
result in the outright dismissal of the complaint. In Heirs of
Mesina vs. Heirs o f Fian, Sr., the Court definitively explained
that in instances of non-joinder of indispensable parties, the
proper remedy is to implead them and not to dismiss the
case:
The non-joinder of indispensable parties is not a
ground for the dismissal of an action. At any stage of a
judicial proceeding an d /o r at such times as are just, parties
may be added on the motion of a party or on the initiative
of the tribunal concerned. If the plaintiff refuses to implead
an indispensable party despite the order of the court, that
court may dismiss the complaint for the plaintiffs failure
to comply with the order. The remedy is to implead the
non-party claimed to be indispensable. (Land Bank o f the
Philippines vs. Eduardo M. Cacayuran, Municipality o f Agoo,
La Union, G.R. No. 191667, April 22, 2015)
Q: When will th e actio n be dism issed in case of n o n ­
jo in d er o f indispensable p arty ?
A: If a party refuses to implead an indispensable party
despite the order of the court the latter may dismiss the
complaint/petition for the plaintiffs/petitioner’s failure to
comply therewith.

Case Law:

Meanwhile, in Plasabas vs. Court o f Appeals, it was

held that “the non-joinder of indispensable parties is not a
ground for the dismissal of an action. The remedy is to implead
the non-party claimed to be indispensable. Parties may be
added by order of the court on motion of the party or on its
own initiative at any stage of the action and/or at such times
 CHAPTER VIII 383
PARTIES IN GENERAL (RULE 3)

as are just. If petitioner refuses to implead an indispensable

party despite the order of the court, the latter may dismiss
the complaint/petition for the plaintiffs/petitioner’s failure
to comply therewith.” (Spouses Ceferino C. Laus and Monina
P. Laus and Spouses Antonio O. Koh and Elisa T. Koh vs.
Optimum Security Services, Inc., G.R. No. 208343, February 3,
2016)
Q: Is failure to im plead an indispensable p a rty to an
actio n a ground for an n u lm e n t o f ju d g m en t?
A: Yes, the joinder of all indispensable parties is a condition
sine qua non of the exercise of judicial power, and a petition
for annulment grounded on lack of jurisdiction, owing to the
failure to implead the indispensable parties, “is ample basis
for annulment of judgment.

Case Law:

Under Rule 47 of the Rules of Court, the remedy of

annulment of decision “is resorted to in cases where the
ordinary remedies of new trial, appeal, petition for relief
from judgment, or other appropriate remedies are no longer
available through no fault of the petitioner, and is based on
only two grounds: extrinsic fraud, and lack of jurisdiction
or denial of due process.” According to Section 3 of Rule 47,
if based on extrinsic fraud, the action m ust be filed within
four (4) years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel.
The Court held in Dr. Orbeta v. Sendiong, that a petition
for annulment grounded on lack of jurisdiction, owing to the
failure to implead the indispensable parties, “is ample basis
for annulment of judgment. We have long held that the joinder
of all indispensable parties is a condition sine qua non of the
exercise of judicial power. The absence of an indispensable
party renders all subsequent actions of the court null and
void for want of authority to act, not only as to the absent
parties but even as to those present.” (Margarita Fernando,
et al. vs. Rosalinda Ramos, et al., G.R. No. 237871, September
18, 2019)
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AND THE BAR

8. N ecessary P arty (Bar E x am ination 2019):

Sec. 8, Rule 3 o f th e 1997 R ules on Civil P rocedure

provides for the rule on necessary parties to the action. It
states that:
“Sec. 8. N ecessary p a rty . — A necessary party
is on e who is n ot indispensable but who ought to be
join ed as a party if com p lete relief is to be accorded
as to th o se already parties, or for a com p lete
determ ination or se ttle m e n t o f th e claim subject o f
th e actio n .”

COMMENTS
Q: Who is a necessary p arty ?
A: 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.

ssary Par ti e ^ t o b e Pleaded:

Sec. 9, Rule 3 o f th e 1997 Rules on Civil P rocedure

provides for the rule on the effect of non-joinder or misjoinder
of necessary parties. It states that:
“S ec. 9 . Non-Joinder o f n ecessary p a r tie s to be
p lea d ed . — W henever in any pleading in w hich a
claim is asserted a n ecessary party is n ot join ed , th e
pleader shall s e t forth h is nam e, if known, and shall
sta te w hy he is om itted. Should th e court find th e
reason for th e om ission unm eritorious, it m ay order
th e in clu sion o f th e om itted n ecessary party if juris­
diction over h is person m ay be obtained.
The failure to com ply w ith th e order for his
in clu sion , w ithout justifiable cau se, shall be deem ed
a waiver o f th e claim against su ch party.
The non-inclusion o f a necessary party does
n ot prevent th e court from proceeding in th e action,
and th e judgm ent rendered th erein shall be w ithout
prejudice to th e rights o f su ch n ecessary party.”
 CHAPTER VIII 385
PARTIES IN GENERAL (RULE 3)

COMMENTS
Q: W hat are th e effects in case of non-joinder or
m isjoinder of necessary p arty ?
A: The effects of non-joinder or misjoinder of necessary
party shall be as follows, to wit:
1) A necessary party may be omitted in a pleading, but
the pleader shall “set forth his name, if known, and shall
state why he is omitted”;
2) 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.”;
3) On the contrary, if the court finds the omission
justifiable, or even if not justifiable but jurisdiction over the
person of such party cannot be obtained by such court, then
such omission will be allowed, and the proceedings shall
continue despite such non-joinder.

|| 10. Unwilling^Co-PlaintifT

Sec. 10, Rule 3 of th e 1997 Rules on Civil Procedure

provides for the rule in case of an unwilling co-plaintiff. It
states that:
“Sec. 10. Unwilling co-plaintiff. — If th e con sen t
o f any party who should be join ed as p lain tiff cannot
be obtained, he m ay be m ade a defendant and th e
reason therefore shall be stated in th e com p laint.”

COMMENTS
Q: W hat is th e rule in case o f an unw illing co-plaintiff?
A: Under the above stated rule, 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.
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AND THE BAR

11. M isjoinder and N on-Joinder o f Parties:

Sec. 11, Rule 3 o f th e 1997 Rules on Civil P rocedure

provides for the rule in case of misjoinder and non-joinder of
parties. It states that:
“Sec. 11. M isjoinder an d non-joinder o f p a rtie s.
— N either m isjoinder nor non-joinder o f parties is not
a ground for dism issal o f an action . Parties m ay be
dropped or added by order o f th e court on m otion of
any party or on its own in itia tiv e at any stage o f th e
action and on su ch term s as are ju st. Any claim against
a m isjoined party m ay be severed and proceeded w ith
separately.”

COMMENTS
Q: W hat are th e effects in case m isjoinder or non-joinder
of p a rtie s?
A: The effects in case of misjoinder nor 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.

Case Law:

Under the Rules, 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. Indeed, it would have been just for the collection court
to have allowed Estrella to prosecute her annulment case by
dropping her as a party plaintiff in the collection case, not
only so that she could protect her conjugal share, but also to
prevent the interests of her co-plaintiffs from being adversely
affected by their conflicting actions in the same case. By
 CHAPTER VIII 387
PARTIES IN GENERAL (RULE 3)

seeking to be dropped from the collection case, Estrella was

foregoing collection of her share in the amount that may be
due and owing from the sale. It does not imply a waiver in any
manner that affects the rights of the other heirs.
While Estrella correctly made use of the remedies
available to her — amending the complaint and filing a
motion to drop her as a party — she committed a mistake
in proceeding to file the annulment case directly after these
remedies were denied to her by the collection court without
first questioning or addressing the propriety of these denials.
While she may have been frustrated by the collection court’s
repeated rejection of her motions and its apparent inability
to appreciate her plight, her proper recourse nevertheless
should have been to file a petition for certiorari or otherwise
question the trial courts denial of her motion to be dropped
as plaintiff, citing just reasons which call for a ruling to the
contrary. Issues arising from joinder or misjoinder of parties
are the proper subject of certiorari. (Estrella Aduan Orpiano
vs. Spouses Antonio C. Tomas and Myma U. Tomas, G.R. No.
178611, January 14, 2013)
Q: W hat is th e effect o f non-inclusion o f th e nam es of all
th e p a rtie s in th e title o f th e co m p laint?
A: The non-inclusion of one or some of the names of all the
complainants in the title of a complaint is not fatal to the case,
provided there is a statement in the body of the complaint
indicating that such complainant/s was/were made party to
such action.

The inclusion of the names of all the parties in the title

of a complaint is a formal requirement under Sec. 3, Rule 7
of the Rules of Court. However, the rules of pleadings require
courts to pierce the form and go into the substance. The non­
inclusion of one or some of the names of all the complainants
in the title of a complaint is not fatal to the case, provided
there is a statement in the body of the complaint indicating
that such complainant/s was/were made party to such
388 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

action. For clarity, the complaint should have been amended

to reflect in the title the individual complainants. There being
a “defect in the designation of the parties,” its correction
could be summarily made at any stage of the action provided
no prejudice is caused thereby to the adverse party. (Spouses
William Genato and Rebecca Genato vs. Rita Viola, G.R. No.
169706, February 5, 2010)*1

1 2 . C la ss S u it:

Sec. 12, Rule 3 ,1 9 9 7 Rules o f Civil P rocedure provides

for the elements that must be complied with for the class suit
to prosper. It provides that:
“Sec. 12. Class su it. — When th e subject m atter
o f th e controversy is one o f com m on or general
in terest to m any persons so num erous th a t it is
im practicable to jo in all as parties, a number o f them
w hich th e court finds to be su fficien tly num erous and
representative as to fully protect th e in te r e sts o f all
concerned m ay sue or defend for th e b en efit o f all.
Any party in in terest shall have th e right to intervene
to protect h is individual in terest.”

COMMENTS
Q: W hat are th e elem en ts o f a class su it?
A: The elements of a class suit are therefore, as follows:
1) The subject matter of the controversy is one of
common or general interest to many persons;
2) The number of persons is so numerous that it is
impracticable to join all as parties;
3) The parties actually before the court Eire sufficiently
numerous Eind representative as to fully protect the interests
of sdl concerned;
4) The representatives sue or defend for the benefit of
all.
 CHAPTER VIII 389
PARTIES IN GENERAL (RULE 3)

The necessary elements for the maintenance of a class

suit are:
1) The subject matter of controversy is one of common
or general interest to many persons;
2) The parties affected are so numerous that it is
impracticable to bring them all to the court; and
3) The parties bringing the class suit are sufficiently
numerous or representative of the class and can fully protect
the interest of all concerned. (Juana Complexi, et al. vs. Fil-
Estate Land, Inc., et al, G.R. No. 152272, March 5, 2012)

Q: W hat is th e effect o f lack o f com m on or general

in te re s t in th e su b ject m a tte r o f th e contro v ersy ?
A: When plaintiffs has a separate and distinct reputation
in the community, they do not have a common or general
interest in the subject matter of the controversy, hence, there
is no class suit.

] Case Law:

In the case of Newsweek vs. LAC, the Court had

opportunity to explain what a class suit is, thus:
“[W]here the defamation is alleged to have been directed
at a group or class, it is essential that the statement m ust be
so sweeping or all-embracing as to apply to every individual
in that group or class, or sufficiently specific so that each
individual in the class or group can prove that the defamatory
statement specifically pointed to him, so that he can bring
the action separately, if need be.
“The case at bar is not a class suit. It is not a case
where one or more may sue for the benefit of all (Mathay
vs. Consolidated Bank and Trust Company, 58 SCRA 559)
or where the representation of class interest affected by the
judgment or decree is indispensable to make each member of
the class an actual party (Borlaza vs. Polistico, 47 Phil. 348).
390 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

We have here a case where each of the plaintiffs has a separate

and distinct reputation in the community. They do n o t have
a com m on o r general in te re s t in th e subject m a tte r of
th e co n tro v ersy .” (Newsweek, Inc. vs. Intermediate Appellate
Court, G.R. No. L-63559, May 30, 1986)
Q: Is com m onality o r general in te re s t in th e question
involved in th e case qualifies for a class s u it?
A: No. A class suit does not require commonality or general
interest in the question involved in the suit, but a common or
general interest in the subject matter of the litigation.

Case ]

Whether the suit is or is not a class suit depends upon the

attendant facts. A class s u it does n o t require com m onality
or in te re st in th e q u estio n involved in th e su it. W hat is
required by th e rules is a com m on o r general in te re s t in
th e su b ject m a tte r of th e litigation. The subject matter of
the action means the physical, the things real or personal,
the money, lands, chattels, and the like, in relation to the suit
which is prosecuted and not the direct or wrong committed
by the defendant. It is not also a common question of law that
sustains a class suit but a common interest in the subject
matter of the controversy. (Mathay vs. Consolidated Ban and
Trust, 58 SCRA 559)
Q: Is closure of road due to excavation affecting m any
com m u ters an d m o to rist o f d ifferent barangays involves
subject m a tte r w hich is o f com m on or general in te re s t
qualify for a class su it?
A: Yes, the closure and excavation of the La Paz Road, is
initially shown to be of common or general interest to many
persons thereby prejudicing the rights if the said persons will
qualify for a class suit.
 CHAPTER VIII 391
PARTIES IN GENERAL (RULE 3)

Case Law:

In this case, the suit is clearly one that benefits all

commuters and motorists who use La Paz Road. As succinctly
stated by the Court of Appeals:
The subject matter of the instant case, i.e., the closure
and excavation of the La Paz Road, is initially shown to be
of common or general interest to many persons. The records
reveal that numerous individuals have filed manifestations
with the lower court, conveying their intention to join private
respondents in the suit and claiming that they are similarly
situated with private respondents for they were also prejudiced
by the acts of petitioners in closing and excavating the La
Paz Road. Moreover, the individuals sought to be represented
by private respondents in the suit are so numerous that it
is impracticable to join them all as parties and be named
individually as plaintiffs in the complaint. These individuals
claim to be residents of various barangays in Binan, Laguna
and other barangays in San Pedro, Laguna. (Juana Complex
I Homeowners Association, Inc., Andres C. Bautista, Brigido
Dimaculangan, Dolores P. Prado, Imelda De La Cruz, Editha C.
Dy, Florencia M. Mercado, Leovino C. Datario, Aida A. Abayon,
Napoleon M. Dimaano, Rosita G. Estigoy and Nelson A. Loyola vs.
Fil-Estate Land, Inc., Fil Estate Ecocentrum Corporation, La Paz
Housing and Development Corporation, Warbird Security Agency,
Enrique Rivilla, Michael E. Jethmal and Michael Alunan, G.R. No.
152272, March 5, 2012)

re m e n t for th e D ism issal of a Class S uit

C om prom ise

Q: W hat is th e req u irem en t for a class su it to be

dism issed or com prom ised?
A: A class suit shall not be dismissed or compromised
without the approval of the court.
392 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

P rocedural Basis:

Sec. 2, Rule 17 o f th e 2 0 1 9 A m endm ents to th e

1997 Rules on Civil P rocedure (A.M. No. 19-10-20) provide
for the rules on dismissal of complaint upon motion by the
plaintiff. It states that:
“Sec. 2. D ism issal upon motion o f p la in tiff. —
Except as provided in the preceding section, a com plaint
shall not be dism issed a t the plaintiffs instance save
upon approval of the court a n d upon such term s and
conditions a s the court deem s proper. If a counterclaim
h a s been pleaded by a defendant prior to the service upon
him or her of the plaintiffs motion for dism issal, the
dism issal shall be limited to the com plaint. The dism issal
shall be w ithout prejudice to the right of the defendant
to prosecute his or h er counterclaim in a separate action
unless w ithin fifteen (15) calendar days from notice of
the motion he or she m anifests his or h er preference to
have his or h er counterclaim resolved in the sam e action.
Unless otherwise specified in the order, a dism issal u n d e r
th is paragraph shall be w ithout prejudice. A class su it
shall n ot be dism issed or com prom ised w ith ou t th e
approval o f th e court.”

Q: D istinguish Class S u it vs. D erivative S u it vs. C itizen

S uit.
Class Suit D erivative Suit C itizen Suit
A cla ss su it is filed A derivative su it is A c itize n su it is
regarding a contro­ a su it in equity th a t an action filed by
versy of comm on or is filed by a m inority any Filipino citi­
general in terest in shareholder in be­ zen in rep resen ­
behalf of m any p er­ half of a corporation tation of others,
sons so num erous to redress wrongs including m inors
th a t it is im practica­ com m itted against or generations
ble to join all as p a r ­ it, for which the di­ not yet born, to
ties, a num ber which rectors refuse to sue, enforce rights and
the court finds suf­ the real party-in-in­ obligations u n d e r
ficiently rep resen ta­ terest being the cor­ environmental
tive who m ay sue or poration itself. (Lint laws. (Sec. 5, Rule
defend for the benefit vs. Lim-Yu, G.R. No. 2, Part II o f A.M.
of all. (Sec. 12, Rule 138343, February No. 09-6-8-SC)
3) 19, 2001)
 CHAPTER VIII 393
PARTIES IN GENERAL (RULE 3)

It is filed by sufficient It is filed by a m inor- It is filed by any

n u m b er of parties for ity stockholder for Filipino citizen,
the benefit of all. an d in behalf of the
corporation.

|| 13. A ltem ativ e D e fe n d an ts:

Sec. 13, Rule 3 o f th e 1997 Rules on Civil Procedure

provides for the rule in case of alternative defendants. It
states that:
“S ec. 13. A lternative defen dan ts. — Where th e
p lain tiff is uncertain against who o f several persons
he is en titled to relief, he m ay join any or all o f them
as defendants in th e alternative, although a right to
relief against one m ay be in c o n sisten t w ith a right o f
relief against th e o th er.”

COM M ENTS

Q: W hat is th e rule on alte rn a tiv e d efen d an ts?

A: 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 to relief
against one may be inconsistent with a right of relief against
the other.

14. Unknow n Id e n tity o r Name o f D efendants:

Sec. 14, Rule 3 o f th e 1997 Rules of Civil Procedure

provides for the rule in case of unknown identity or name of
the defendant in an action. It states that:

“Sec. 14. Unknown id e n tity or nam e o f defendant.

— W henever th e id en tity or nam e o f a defendant is
unknown, h e m ay be sued as th e unknown owner, heir,
d evisee, or by su ch other design ation as th e case m ay
require; w hen his id en tity or true nam e is discovered,
th e pleading m ust be am ended accordingly.”
394 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat is th e rule in case th e id e n tity or nam e of th e
defen d an t is unknow n in an a ctio n ?
A: Whenever the identity or name of a defendant is unknown,
he may be sued as:
1) The unknown owner;
2) Unknown heir;
3) Unknown devisee; or
4) By such other designation as the case may require.

Q: W hat is th e rem edy in case th e tru e nam e of id e n tity

was discovered?
A: Under the above-cited rule, “ When his identity or true name
is discovered, the pleading must be amended accordingly.”

15. E n tity W ithout Ju rid ic a l P erso n ality as D efendant:

Sec. 15, Rule 3 o f th e 1997 Rules of Civil P rocedure

provides for the rule in case a party is an entity without
juridical personality. It states that:
“Sec. 15. E n tity w ith ou t Juridical p erso n a lity a s
defen dan t . — When tw o or more persons n ot organized
as an e n tity w ithout juridical personality en ter in to
a tran saction , th e y m ay be su ed under th e nam e by
w hich th e y are generally or com m only known.
In th e answer o f su ch defendant, th e nam es and
addresses o f th e persons com p osing said e n tity m ust
all be revealed.”

COMMENTS
Q: W hat is th e rule in case a p arty in an actio n is an
e n tity w ith o u t ju rid ical p erso n ality ?
A: When two or more persons not organized as an entity
with juridical personality enter into a transaction, it has the
following effects:
 CHAPTER VIII 395
PARTIES IN GENERAL (RULE 3)

1) They may be sued under the name by which they

are generally or commonly known; and
2) In the answer of such defendant, the names and
addresses of the persons composing said entity must all be
revealed.

16. D eath of a P arty an d D uty of th e Counsel:

Sec. 16, Rule 3 ,1 9 9 7 Rules of Civil P rocedure provides

for the rules on the duty of the counsel in case of death of his
client. It provides that:
“Sec. 16. Death o f p a rty; d u ty o f counsel. —
W henever a party to a pending action dies, and th e
claim is not thereby extinguished, it shall be th e duty
o f his cou n sel to inform th e court w ithin th irty (30)
days after such death o f th e fact thereof, and to give
th e nam e and address o f h is legal representative or
representatives. Failure o f counsel to com ply with
th is duty shall be a ground for disciplinary action.
The heirs o f th e deceased m ay be allowed to be
su b stitu ted for th e deceased, w ithout requiring the
appointm ent o f an executor or adm inistrator and the
court m ay appoint a guardian a d litem for th e m inor
heirs.
The court shall forthw ith order said legal repre­
sen tative or representatives to appear and be substi­
tu ted w ithin a period o f thirty (30) days from notice.
If no legal representative is nam ed by th e counsel
for th e deceased party, or if th e one so nam ed shall
fail to appear w ithin th e specified period, th e court
m ay order th e opposing party, w ithin a specified
tim e, to procure th e appointm ent o f an executor or
adm inistrator for th e esta te o f th e deceased and the
latter shall im m ediately appear for and on behalf o f
th e deceased. The court charges in procuring such
appointm ent, if defrayed by th e opposing party, m ay
be recovered as c o sts.”
396 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS

Q: W hat are th e d u ties o f a counsel in case of d e a th of

p arty in an a ctio n th a t survives?
A: Whenever a party to a pending action dies, and the claim
is not thereby extinguished, it shall be the duty of his counsel
to:
1) Inform the court within thirty (30) days after such
death of the fact thereof;
2) To give the name and address of his legal
representative or representatives.

Case Law:

The duty of the counsel under the afore-cited provision

is to inform the court within 30 days after the death of his
client of the fact of death, and to give the name and address
of the deceased’s legal representative/s. Incidentally, this is
the only representation that counsel can undertake after the
death of a client as the fact of death terminates any further
lawyer-client relationship. (Judge Antonio C. Sumaliag vs.
Sps. Diosdidit and Menendez Literato, G.R. No. 149787, June
18, 2008)

Q: W hat is th e liability o f th e counsel to rep o rt th e fact

of d eath of th e p arty ?
A: Failure of counsel to comply with this duty shall be a
ground for disciplinary action.
Q: W hat is th e purpose o f th e ru le?
A: The rule is intended to protect every party’s right to due
process.

Case Law:

The rule is intended to protect every party’s right to due

process. The estate of the deceased party will continue to be
properly represented in the suit, through the duly appointed
 CHAPTER VIII 397
PARTIES IN GENERAL (RULE 3)

legal representative. Moreover, no adjudication can be made

against the successor of the deceased if the fundamental
right to a day in court is denied. (Jose Ramilo O. Regalado vs.
Chaucer B. Regalado, G.R. No. 196919, June 6, 2011)

Q: Is form al n o tice o f su b stitu tio n required if th e h eirs

already p artic ip a te d in th e case?
A: No. A formal substitution of the heirs in place of the
deceased is no longer necessary if the heirs continued to
appear and participated in the proceedings of the case.

Case Law:

The purpose behind the rule on substitution is the

protection of the right of every party to due process. It is
to ensure that the deceased party would continue to be
properly represented in the suit through the duly appointed
legal representative of his estate. Non-compliance with the
rule on substitution would render the proceedings and the
judgment of the trial court infirm because the court acquires
no jurisdiction over the persons of the legal representatives
or of the heirs on whom the trial and the judgment would be
binding.
In the case at bar, we find that no right to procedural due
process was violated when the counsel for the respondents
failed to notify the court of the fact of death of Simplicia P.
Aguilar and even if no formal substitution of parties was
effected after the such death. As can be gleaned above, the
rationale behind the rule on substitution is to apprise the heir
or the substitute that he is being brought to the jurisdiction
of the court in lieu of the deceased party by operation of law.
In Vda. de Salazar vs. Court of Appeals, we ruled that a
form al su b stitu tio n o f th e h eirs in place of th e deceased
is no longer necessary if th e h eirs co n tin u ed to appear
and p artic ip a te d in th e proceedings of th e case. (Joel
Cardenas, Heir of the Late Elinaida L. Alcantara, represented
by Antonio Ignacio, Jr. vs. Heirs o f the late Spouses Simplicia
P. Aguilar, et al, G.R. No. 191079, March 2, 2016)
398 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: When will th e su b stitu tin g h eirs appear before th e

co u rt?
A: It is the duty of the court to order the legal representative
or heir to appear arises only upon proper notice.

S e c . 1 7 , R u le 3 is explicit that the duty of the court to

order the legal representative or heir to appear arises only
“upon proper notice.” The notation “Party-Deceased” on the
unserved notices could not be the “proper notice”contemplated
by the rule. As the trial court could not be expected to know or
take judicial notice of the death of a party without the proper
manifestation from counsel, the trial court was well within its
jurisdiction to proceed as it did with the case. Moreover, there
is no showing that the court’s proceedings were tainted with
irregularities. (Generoso Saligumba vs. Monica Palanog, G.R.
No. 143365, December 4, 2008)
Q: W hat is th e effect o f failure of th e counsel to inform
th e co u rt o f th e fact o f d eath o f th e p arty and to file a
su b stitu tio n o f h eirs?
A: The failure of counsel to comply with his duty to inform
the court of the death of his client and the non-substitution
of such party will not invalidate the proceedings and the
judgment thereon if the action survives the death of such
party.

Case Law:

It is the duty of counsel for the deceased to inform the

court of the death of his client. The failure of counsel to
comply with his duty under Sec. 16 to inform the court of
the death of his client and the non-substitution of such party
will not invalidate the proceedings and the judgment thereon
if the action survives the death of such party. The decision
rendered shall bind the party’s successor-in-interest.
The rules operate on the presumption that the attorney
for the deceased party is in a better position than the attorney
 CHAPTER VIII 399
PARTIES IN GENERAL (RULE 3)

for the adverse party to know about the death of his client
and to inform the court of the name and address of his legal
representative. (Generoso Saligumba vs. Monica Palanog,
supra.)

Q: W hat is th e n a tu re o f th e rule on s u b stitu tio n of

h eirs?
A: The rule on substitution by heir is not a matter of juris­
diction, but a requirement of due process.

Case Law:

Mere failure to substitute a deceased party is not

sufficient ground to nullify a trial court’s decision. The party
alleging nullity must prove that there was an undeniable
violation of due process.
Strictly speaking, the rule on substitution by heir is not a
matter of jurisdiction, but a requirement of due process. The
rule on substitution was crafted to protect every party’s right
to due process. It was designed to ensure that the deceased
party would continue to be properly represented in the suit
through his heirs or duly appointed legal representative of his
estate. Moreover, non-compliance with the Rules result in the
denial of the right to due process for the heirs who, though
not duly notified of the proceedings, would be substantially
affected by the decision rendered therein. Thus, it is only
when there is a denial of due process, as when the deceased
is not represented by any legal representative or heir, that
the court nullifies the trial proceedings and the resulting
judgment therein. (Capitolina Vivero Napere vs. Amando
Barbarona, G.R. No. 160426, January 31, 2008)

Q: How to d eterm in e w h eth er th e a ctio n survives or

n o t?
A: The question as to whether an action survives or not
depends on the nature of the action and the damage sued for.
400 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Sec. 16, Rule 3 of the Rules of Court allows the

substitution of a party-litigant who dies during the pendency
of a case by his heirs, provided that the claim subject of said
case is not extinguished by his death. As early as in Bonilla v.
Barcena, the Court has settled that if the claim in an action
affects property and property rights, then the action survives
the death of a party-litigant, viz.:
The question as to whether an action survives or not
depends on the nature of the action and the damage sued for.
In the causes of action which survive the wrong complained
affects primarily and principally property and property rights,
the injuries to the person being merely incidental, while in the
causes of action which do not survive the injury complained
of is to the person, the property and rights of property affected
being incidental, x x x. (Pacific Rehouse Corporation vs. Joven
L. Ngo, as represented by Oscar J. Garcia, G.R. No. 214934,
April 12, 2016)
i ■ " i .—. - . . . —
17. D eath or S ep aratio n o f a P arty who Is a Public
L==2ffi£OTL=====:^^^^^^^=========_=
Sec. 17, Rule 3 o f th e 1997 Rules of Civil P rocedure
provides for the rule in case of death or separation of a party
who is a public officer. It states that:
“8 ec. 17. Death or sep a ra tio n o f a p a r ty who is
a pu blic officer. — When a public officer is a party
in an action in h is official capacity and during its
pendency dies, resigns, or otherw ise c e a se s to hold
office, th e action m ay be continu ed and m aintained
by or against his su ccessor if, w ithin th irty (30) days
after th e su ccessor take office or such tim e as m ay be
granted by th e court, it is satisfactorily show n to th e
court by any party th at there is a substantial need for
con tin u in g or m aintaining it and th at th e su ccessor
adopts or con tin u es or threaten s to adopt or continu e
th e action o f h is predecessor. Before a su b stitu tion
is m ade, th e party or officer to be affected, u n less
expressly a ssen tin g th ereto, shall be given reasonable
 CHAPTER VIII 401
PARTIES IN GENERAL (RULE 3)

n o tice o f th e application therefor and accorded an

opportunity to be heard.”

COMMENTS
Q: W hat are th e effects in case o f d e a th or sep aratio n of
a p arty who is a public officer?
A: 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 30 days after the successor takes office or
such time as may be granted by the court, if 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.

| 18. In co m p eten cy or In cap acity o f a Party:

Sec. 18, Rule 3 o f th e 1997 Rules of Civil P rocedure

provides for the rule in case a party becomes incompetent or
incapacitated. It provides that:
“Sec. 18. Incom petency or incapacity. — If a
party b ecom es in com p eten t or incapacitated, th e
court, upon m otion w ith n otice, m ay allow th e action
to be continu ed by or against th e in com p eten t or
in capacitated person a ssisted by h is legal guardian or
guardian a d litem."

COMMENTS
Q: W hat is th e effect if th e p a rty to th e a ctio n becom es
in co m p eten t o r in c ap acitated ?
A: If a party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the action to be
402 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

continued by or against the incompetent or incapacitated

person assisted by his legal guardian or guardian ad litem.

19. T ransfer o f In

Sec. 19, Rule 3 of th e 1997 Rules of Civil Procedure

provides for the rule in case transfer of interest by the party.
It provides that:

“Sec. 19. Transfer o f in terest. — In case o f any

transfer o f interest, th e action m ay be continu ed by
or against th e original party, u n less th e court upon
m otion directs th e person to whom th e in terest is
transferred to be su b stitu ted in th e action or joined
w ith th e original party."

COMMENTS
Q: W hat is th e effect in case o f tra n sfer of in te re st by
th e p arty ?
A: 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.

Case Law:

Under the law of agency, an agent is not personally

liable for the obligations of the principal unless he performs
acts outside the scope of his authority or he expressly binds
himself to be personally liable. Otherwise, the principal is
solely liable. Here, there was no showing that SRMO bound
itself personally for Gerardo’s obligations. SRMO also acted
within the bounds of the authority issued by Gerardo,
as the transferee pendente lite of the widow’s interest, to
receive the payment.
 CHAPTER VIII 403
PARTIES IN GENERAL (RULE 3)

It appears that the RTC’s primary justification for

ordering SRMO to return the money from its own pocket is
due to the latter’s failure to formally report the transfer of
interest from Remedios to Gerardo. While it certainly would
have been prudent for SRMO to notify the RTC, the Rules of
Court do not require counsels of parties to report any transfer
of interest. Rule 3, Sec. 19 of the Rules of Court provides:
Section 19. Transfer o f 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.
Otherwise stated, unless the court upon motion directs
the transferee pendente lite to be substituted, the action is
simply continued in the name of the original party. For all
intents and purposes, the Rules already consider Gerardo
joined or substituted in the proceeding a quo, commencing
at the exact moment when the transfer of interest was
perfected between original party-transferor, Remedios, and
the transferee pendente lite, Gerardo. Given the foregoing,
we find that the RTC was unjustified in ordering SRMO, in
its own capacity, to return the money to the Estate despite
the fact, as certified to by Gerardo’s heirs, that SRMO had
already accounted for all monies or funds it had received
on its client’s behalf to Gerardo. If the RTC was convinced
that the Estate had a right to reimbursement, it should
have ordered the party who ultimately benefited from
any unwarranted payment—not his lawyer—to return the
money. (Siguion Reyna Montecillo and Ongsiako Law Offices
vs. Hon. Norma Chionlo-Sia, G.R. No. 181186, February 3,
2016)

Q: W hat is th e n a tu re o f s u b stitu tio n of p artie s on

a cco u n t o f tra n sfe r o f in te re s t?
A: The rule on substitution of parties on account of transfer
of interest is not mandatory but rather discretionary.
404 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The substitution of parties on account of a transfer

interest is not mandatory.
Section 19, Rule 3 of the Rules of Court provides:
SEC. 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.
The word reflects the wide latitude and considerable
leeway given to the court in ascertaining the propriety of
substituting a party by another on account of a transfer of
interest. Whether or not a change or substitution of party can
take place is left to the sound discretion of the court.
Nevertheless, whether or not the transferee should be
substituted for, or should be joined with, the original party
is largely a matter of discretion. That discretion is exercised
in pursuance of the paramount consideration that must be
afforded for the protection of the parties interests and right to
due process.
However, it is equally true that the discretionary nature
of allowing the substitution or joinder by the transferee
demands that the court’s determination m ust be well-within
the sphere of law, guided by applicable statutory principles,
and supported by factual and legal bases. (Grandholding
Investments [SPV-AMC], Inc. vs. Court o f Appeals, TJR
Industrial Corporation, Peter C. Yu, Concepcion C. Yu, Antonio
Siao Inhok, and Thelma Siao Inhok, G.R. No. 221271, June 19,
2019)

20. A ction on C o n tractu al M oney Claims:

Sec. 20, Rule 3 of th e 1997 Rules of Civil Procedure

provides for the rules in case of death of the client in an action
based on a contractual money claims. It provides that:
 CHAPTER VIII 405
PARTIES IN GENERAL (RULE 3)

MSec. 2 0 . Action on con tractu al money claim s. —

When th e action is for recovery o f m oney arising from
contract, express or im plied, and th e defendant dies
before entry o f final judgm ent in th e court in w hich
th e action was pending at th e tim e o f su ch death, it
shall not be dism issed but shall in stead be allowed to
continu e u n til entry o f final judgm ent. A favorable
judgm ent obtained by th e p lain tiff th erein shall be
enforced in th e m anner esp ecially provided in th ese
R ules for prosecuting claim s against th e esta te o f a
deceased person.”

COMMENTS
Q: W hat is th e effect in case o f d eath of a p arty in an
a ctio n based on a c o n tra c tu a l m oney claim s?
A: 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:
a) It will not be dismissed but shall instead be allowed
to continue until entry of final judgment; and
b) In case of 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.

Case Law:

From the foregoing provisions (Sec. 20, Rule 3 in relation

to Sec. 5, Rule 86) of the Rules of Court, it is clear that in the
event that the respondent-debtor dies during the pendency
of the case, the same is not dismissed but is allowed to
continue. If, eventually, the court rules against the deceased
respondent, the same shall be enforced as a claim against
his estate, and not against the individual heirs. In Genato
vs. Bayhon, the Court wrote that the remedy of a creditor in
case of the death of the debtor is to enforce the former’s claim
against the latter’s estate, to wit:
406 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The loan in this case was contracted by respondent.

He died while the case was pending before the Court of
Appeals. While he may no longer be compelled to pay the
loan, the debt subsists against his estate. No property or
portion of the inheritance may be transm itted to his heirs
unless the debt has first been satisfied, x x x (Pasda, Inc.
vs. Reynaldo Dimayacyac Sr., substituted by the Heirs, G.R.
No. 220479, August 17, 2016)

Q: W hat are th e actio n s th a t survives th e d eath o f th e

p arty ?
A: Actions that survive the death of the party under the
rules are as follows, to wit:
1) Action for the recovery of money arising from
contract, express or implied (Sec. 20, Rule 3);
2) Actions to recover real property;
3) Recovery of personal property or an interest therein,
from the estate, or to enforce a lien thereon; and
4) Actions to recover damages for an injury to person
or property, real or personal, may be commenced against
him. (Sec. 1, Rule 87)
Q: W hat is th e n a tu re o f an a ctio n for q uieting o f title ?
A: An action for quieting of title with damages is an action
involving real property which is an action that survives.

Case Law:

An action for quieting of title with damages which is

an action involving real property, is an action that survives
pursuant to Sec. 1, Rule 8 7 as the claim is not extinguished
by the death of a party. And when a party dies in an action
that survives, Sec. 17 o f Rule 3 provides for the procedure.
(Generoso Saligumba vs. Monica Palanog, G.R. No. 143365,
December 4, 2008)
 CHAPTER VIII 407
PARTIES IN GENERAL (RULE 3)

Q: How will th e ju d g m en t be enforced in case o f d eath of

a p arty during th e pendency o f th e actio n ?
A: In case of death of the defendant the case will continue
and judgment shall be enforced against the estate.

Case Law:

From the foregoing provisions [Section 20, Rule 3 in

relation to Section 5, Rule 86] of the Rules of Court, it is
clear that in the event that the respondent-debtor dies during
the pendency of the case, the same is not dismissed but is
allowed to continue. If, eventually, the court rules against
the deceased respondent, the same shall be enforced as a
claim against his estate, and not against the individual heirs.
In Genato v. Bayhon, the Court wrote that the remedy of a
creditor in case of the death of the debtor is to enforce the
former’s claim against the latter’s estate, to wit:
The loan in this case was contracted by respondent. He
died while the case was pending before the Court of Appeals.
While he may no longer be compelled to pay the loan, the
debt subsists against his estate. No property or portion of
the inheritance may be transmitted to his heirs unless the
debt has first been satisfied, x x x (Pasda, Inc. vs. Reynaldo
Dimauacuac Sr., substituted by the Heirs, G.R. No. 220479,
August 17, 2016)
Q: When to file th e claim ag ain st th e e s ta te based on a
favorable ju d g m en t?
A: It shall be filed immediately after granting letters
testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court.

|| ProceduralB aaisri

Sec. 1, Rule 86 o f th e Rules of Court provides for the

rule in case of a claim against the estate based on a favorable
judgment. It states that:
408 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 1. Notice to C reditors to be issu ed b y court.

— Im m ediately after granting letters testam entary
or o f adm inistration, th e court shall issu e a n otice
requiring all persons having m oney claim s against th e
d ecedent to file them in th e office o f th e clerk o f said
court.”

COMMENTS
Q: W hat c la im s c a n b e c h a r g e d a g a in s t t h e e s t a t e o f t h e
d e c e d e n t?
Sec. 5, Rule 86 o f th e Rules o f C ourt provides for the
period within which to file the claims against the estate. It
states that:
MSec. 5. Claim s which m u st be file d un der th e
notice. I f not f ile d barred; exceptions. — All claim s for
m oney against the deced en t, arising from contract,
express or im plied, w hether th e sam e be due, not due,
or con tin gen t, all claim s for funeral exp en ses and
exp en ses for th e last sic k n ess o f th e decedent, and
judgm ent for m oney against th e decedent, m ust be
filed w ithin th e tim e lim ited in th e notice; otherw ise
th e y are barred forever, excep t th a t th e y m ay be se t
forth as counter-claim s in any action th at th e execu ­
tor or adm inistrator m ay bring against th e claim ants.
Where an executor or adm inistrator com m en ces an
action, or prosecu tes an action already com m enced
by th e deceased in h is lifetim e, th e debtor m ay se t
forth by answer th e claim s he has against th e d ece­
dent, in stead o f presenting them independently to
th e court, as herein provided, and m utual claim s m ay
be s e t off against each other in such action; and if
final judgm ent is rendered in favor o f th e defendant,
th e am ount so determ ined shall be considered th e
true balance against th e e sta te , as though th e claim
had been presented directly before th e court in th e
adm inistration proceedings, Claim s n ot y e t due, or
con tin gen t, m ay be approved at their present value.”
 CHAPTER VIII 409
PARTIES IN GENERAL (RULE 3)

COMMENTS
Q: W hat are th e claim s which can be charged against
th e e sta te ?
A: The following may be claimed against the estate of the
deceased:
1) All claims for money against the decedent, arising
from contract, express or implied, whether the same be due,
not due, or contingent;
2) All claims for funeral expenses;
3) Expenses for the last sickness of the decedent; and
4) Judgment for money against the decedent, must be
filed within the time limited in the notice.

Q: What is th e effect if th e claim is n o t filed w ithin th e

period prescribed?
A: Under the above-cited rule which states that “Claims
after notice issued by the court must be filed within the time
limited in the notice; otherwise they are barred forever x x x . ”
Q: What is th e rem edy of th e claim ant if he failed to file
his claim w ithin th e tim e prescribed?
A: Under the above-cited rule “claims not filed may be set
forth as counter-claims in any action that the executor or
administrator may bring against the claimants.”
Q: What are th e rem edies of th e debtor in case an action
is com m enced by th e deceased and prosecuted by th e
executor or ad m in istrato r?
A: Where an executor or administrator commences an
action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may:
a) Set forth by answer the claims he has against the
decedent, instead of presenting independently to the court,
as herein provided;
b) Mutual claims may be set off against each other in
such action;
410 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

c) If final judgment is rendered in favor of the

defendant, the am ount so determined shall be considered
the true balance against the estate, as though the claim
had been presented directly before the court in the
administration proceedings; and
d) Claims not yet due, or contingent, may be approved
at their present value.

||^ ^ £ ^ In d ig e n tJ P a rty J ^ r E xam ination 2016):

Sec. 21, Rule 3 o f th e 1997 Rules of Civil Procedure

provides for the rules in case of an indigent party and the
privileges he may enjoy. It provides that:
"Sec. 2 1 . Indigent p a rty. — A party m ay be
authorized to litigate h is action, claim or defen se as
an indigent if th e court, upon an ex p a r te application
and hearing, is satisfied th at th e party is one who
has no m oney or property su fficien t and available for
food, sh elter and basic n e c e ssitie s for h im self and his
fam ily.
Such authority shall include an exem ption
from paym ent o f docket and other lawful fees, and
o f transcripts o f stenographic n o tes w hich th e court
m ay order to be furnished him . The am ount o f th e
docket and other lawful fees w hich th e indigent was
exem pted from paying shall be a lien on any judgm ent
rendered in th e case favorable to th e indigent, u n less
th e court otherw ise provides.
Any adverse party m ay c o n test th e grant o f such
authority at any tim e before judgm ent is rendered by
th e trial court. If th e court should determ ine after
hearing th at th e party declared as an indigen t is in
fact a person w ith su fficien t in com e or property, th e
proper docket and other lawful fee s shall be assessed
and collected by th e clerk o f court. If paym ent is not
m ade w ithin th e tim e fixed by th e court, execu tion
shall issu e for th e paym ent thereof, w ithout prejudice
to such other san ction s as th e court m ay im p ose.”
 CHAPTER VIII 411
PARTIES IN GENERAL (RULE 3)

COMMENTS
Q: Who is an indigent party?
A: An indigent party is 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.
Q: What are th e requirem ents to be declared as indigent
party?
A: 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.
Q: What are th e effects of declaration of a party as
indigent?
A: 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.
Q: What are th e effects of declaration of indigency on
th e docket and other lawful fees?
A: 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.
Q: What is th e rem edy of th e adverse party in case of
declaration of indigency?
A: Any adverse party may contest the grant of such authority
at any time before judgment is rendered by the trial court.
412 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e effect if th e p arty h as sufficient incom e?

A: If the court should determine after hearing that the party
declared as an indigent is in fact a person with sufficient
income or property that court may:
1) Order that the proper docket and other lawful fees
shall be assessed and collected by the clerk of court;
2) If payment is not made within the time fixed by the
court, execution shall issue for the payment thereof, without
prejudice to such other sanctions as the court may impose.

a) A m endm ent on Rule 141 on th e P aym ent of D ocket

Fees (A.M. Wo. 00-2-01, M arch 1, 2000):__________

Sec. 18 o f A.M. No. 00-2-01 on th e A m endm ent to

Rule 141 on Legal Fees (March 1, 2000) provides for the
rule on the payment legal fees. It states that:
"See. 18. In digent-litigants exem pts from
p a ym en t o f legal fees. — Indigent litigan ts (a) w hose
gross in com e and th at o f their im m ediate fam ily do
n ot exceed four thousand (P4,0 0 0 .0 0 ) p esos a m onth
if residing in Metro Manila, and three thousand
(P3,000.00) pesos a m onth if residing outside Metro
Manila, and (b) who do n ot own real property w ith
an a ssessed value o f m ore than fifty thousand
(P50,000 .0 0 ) pesos shall be exem pt from th e paym ent
o f legal fees.
The legal fees shall be a lien on any judgm ent
rendered in th e case favorably to th e indigent litigan t,
u n less th e court otherw ise provides.
To be en titled to th e exem ption herein provided,
th e litigan t shall ex ecu te an affidavit th a t he and
h is im m ediate fam ily do n ot earn a gross incom e
abovem entioned, nor th e y own any real property with
th e a ssessed value aforem entioned, supported by an
affidavit o f a d isin terested person a ttestin g to th e
truth o f th e litigan t’s affidavit.
Any falsity in th e affidavit o f a litigan t or
disin terested person shall be su fficien t cause to strike
out th e pleading o f th a t party, w ithout prejudice to
 CHAPTER VIII 413
PARTIES IN GENERAL (RULE 3)

whatever criminal liability may have been incurred.”

(16a)

COMMENTS:
Q: What are th e requirem ents for a party to be declared
as indigent?
A: Indigent litigants shall have the following qualification to
be declared as such:
(1) Whose gross income and that of their immediate
family do not exceed four thousand (P4,000.00) pesos a month
if residing in Metro Manila, and three thousand (P3,000.00)
pesos a month if residing outside Metro Manila, and
(2) Who do not own real property with an assessed
value of more than fifty thousand (P50,000.00) pesos shall be
exempt from the payment of legal fees.
Q: What is th e effect of legal fees on th e judgm ent in
favor of th e plaintiff?
A: The legal fees shall be a lien on any judgment rendered
in the case favorably to the indigent litigant, unless the court
otherwise provides.
Q: What are th e other docum entary requirem ents for
th e litigant to comply?
A: To be entitled to the exemption herein provided, the
litigant shall execute an affidavit and shall state that:
1) He and his immediate family do not earn a gross
income abovementioned;
2) They do not own any real property with the assessed
value aforementioned;
3) It must be supported by an affidavit of a disinterested
person attesting to the truth of the litigant’s affidavit.

Q: What is th e effect in case th e litigant made a falsity

in his affidavit?
A: Any falsity in the affidavit of a litigant or disinterested
person shall be sufficient cause to strike out the pleading of
414 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

that party, without prejudice to whatever criminal liability

may have been incurred. (16a)

Q: Will th e re be a conflict betw een Sec. 19, Rule 141

and A.M. No. 00-2-01 on th e am en d m ent of th e Rule on
paym ent of d o ck et fees?
A: No. If the party complied with all the requirements under
Sec. 1, Rule 141, then the application shall be granted. If the
court finds that one or both of the requirements are not met
then the court will conduct a hearing to determine whether
they have money property.

Case Law:

In the light of the foregoing considerations, therefore, the

two (2) rules can stand together and are compatible with each
other. When an application to litigate as an indigent litigant is
filed, the court shall scrutinize the affidavits and supporting
documents submitted by the applicant to determine if the
applicant complies with the income and property standards
prescribed in the present Section 19 of Rule 141—that is,
the applicant’s gross income and that of the applicant’s
immediate family do not exceed an amount double the
monthly minimum wage of an employee; and the applicant
does not own real property with a fair market value of more
than Three Hundred Thousand Pesos (Php300,000.00). If
the trial court finds that the applicant meets the income and
property requirements, the authority to litigate as indigent
litigant is automatically granted and the grant is a matter of
right.
However, if the trial court finds that one or both
requirements have not been met, then it would set a hearing
to enable the applicant to prove that the applicant has “no
money or property sufficient and available for food, shelter and
basic necessities for himself and his family.” In that hearing,
the adverse party may adduce countervailing evidence to
disprove the evidence presented by the applicant; after which
the trial court will rule on the application depending on the
 CHAPTER VIII 415
PARTIES IN GENERAL (RULE 3)

evidence adduced. In addition, Section 21 of Rule 3 also

provides that the adverse party may later still contest the grant
of such authority at any time before judgment is rendered by
the trial court, possibly based on newly discovered evidence
not obtained at the time the application was heard. If the
court determines 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 of prescribed fees shall be made, without prejudice
to such other sanctions as the court may impose. (Felipe
Jhonny A. Frias, Jr. and Heirs of Rogelio B. Veneration vs. The
Honorable Edwin D. Sorongon, Assisting Judge, Branch 211,
RTC, Mandaluyong City, et al., G.R. No. 184827, February 11,
2015)

Q: Is an erroneous granting of a M otion to Declare as

pauper litig an t a jurisd ictio n al error?
A: No, if the non-payment is not entirely attributable to the
plaintiff, it becomes error in the exercise of jurisdiction on the
part of the judge.

Case Law:
It is true that the non-payment of the filing fees usually
prevents the trial court from acquiring jurisdiction over the
claim stated in the complaint. But for the CA to annul the
judgment rendered after trial based solely on such non­
payment was not right and just considering that the non­
payment of the filing fees had not been entirely attributable to
the plaintiff alone. The trial court was more, if not exclusively,
to blame for the omission. The exemption of the clients of the
PAO like him from the payment of the legal fees was expressly
declared by law for the first time in Republic Act No. 9406.
(Samsoden Pangcatan vs. Alexandra “Dodong”Maghuyop and
Belindo Bankiao/Alexandro *Dodong* Maghuyop and Belindo
Bankiao vs. Samsoden Pangcatan, G.R. No. 194412/G.R. No.
194566, November 16, 2016, Bersamin, J)
416 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

b) Rule on In digent P arty in Sm all Claim s Cases:

Sec. 10 o f A.M. No. 08-8-7-SC otherwise known as the

Revised 2016 Rules on Sm all Claim s Cases provides for
rule on indigent party. It states that:

“Sec. 10. Paym ent o f Filing Fees. — The plaintiff

shall pay th e docket and other legal fees prescribed
under Rule 141 o f th e R evised R ules o f Court, u n less
allow ed to litigate as an indigent. Exem ption from th e
paym ent o f filing fees shall be granted only by th e
Suprem e Court.
XXX"

COMMENTS
Q: W hat is th e rule on in d ig en t p arty u n d er th e Rules on
Sm all Claim s?
A: The plaintiff shall pay the docket and other legal fees
prescribed under Rule 141 of the Revised Rules of Court,
unless allowed to litigate as an indigent. Exemption from the
payment of filing fees shall be granted only by the Supreme
Court.

Q: How will th e p arty be declared as in digent p arty ?

A: A claim filed with a motion to sue as indigent (Form
6-SCC) shall be referred to the Executive Judge for immediate
action in case of multi-sala courts.

Q: W hat is th e effect if th e m otion is g ran ted ?

A: If the motion is granted by the Executive Judge, the case
shall be raffled off or assigned to the court designated to hear
small claims cases.

Q: W hat is th e effect if th e m o tio n is denied?

A: If the motion is denied, the plaintiff shall be given five
days within which to pay the docket fees, otherwise, the case
shall be dismissed without prejudice.
 CHAPTER VIII 417
PARTIES IN GENERAL (RULE 3)

Q: What fee which is n o t included in th e exem ption?

A: Under the above stated rule, “In no case shall a party,
even if declared an indigent, be exempt from the payment of
the PI,000.00fee for service of summons and processes. ”

c) C onstitutional Basis of th e Rule on Indigent Party:

Q: W hat is t h e C o n s titu tio n a l b a s is o f t h e ru le on

indigent party?
A: Sec. 11, Art. Ill of th e 1987 C onstitution provides
for the rights of the person to free access to courts and legal
assistance. It provides that:
"Sec. 11. Free a ccess to courts and quasi-judicial
bodies and adequate legal assistance shall not be
denied by reason o f poverty.”

22. Notice to Solicitor General:

Sec. 22, Rule 3 of th e 1997 Rules of Civil Procedure

provides for the rules in cases requiring notice to the Solicitor
General. It provides that:
"Sec. 22. Notice to the Solicitor General. — In
any action involving th e validity o f any treaty, law,
ordinance, execu tive order, presidential decree,
rules or regulations, th e court, in its discretion, may
require th e appearance o f th e Solicitor General who
may be heard in person or through a representative
duly designated by him .”

COMMENTS
Q: When Is notice to th e Solicitor General required?
A: 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 in any
action involving:
1) The validity of any treaty;
418 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) Law;
3) Ordinance;
4) Executive Order;
5) Presidential Decree; and
6) Rules or regulations.

Q: W ho h a s t h e p o w er t o r e p r e s e n t t h e S t a te ?
A: As a general rule, the mandate or authority to represent
the state lies only in the Office of the Solicitor General.

Case Law:

As a general rule, the mandate or authority to represent

the state lies only in the OSG. Thus -
It is patent that th e in te n t o f th e lawmaker was
to give th e designated official, th e Solicitor General,
in th is case, th e unequivocal m andate to appear for
th e governm ent in legal proceedings. Spread out in
th e laws creating th e office is th e discernible in ten t
w hich m ay be gathered from th e term “shall” x x x.
xxx
The Court is firm ly con vin ced th a t considering
th e spirit and th e letter o f th e law, th ere can be no other
logical interpretation o f Sec. 3 5 o f th e A dm inistrative
Code than th a t it is, indeed, m andatory upon th e OSG
to “represent th e G overnm ent o f th e Philippines, its
agen cies and instru m en talities and its officials and
agen ts in any litigation , proceeding, in vestigation or
m atter requiring th e services o f a lawyer.
For the above reason, actions essentially involving the
interest of the state, if not initiated by the Solicitor General,
are, as a rule, summarily dismissed. (Heirs of Sarah Marie
Palma Burgos vs. Court o f Appeals and Johnny Co y Yu, G.R.
No. 169711, February 8, 2010)
 CHAPTER IX

VENUE IN GENERAL (RULE 4)

A. Basic Concepts:

Q: W hat is venue?
A: Venue is simply the geographical location/place where
the case shall be instituted, heard, and tried.
Q: W hat is th e natu re and purpose of venue?
A: In civil actions, venue is merely a matter of procedural
law and not substantive law, as it was only meant for
convenience of the parties.
Q: W hat is th e natu re and purpose of venue in civil and
crim inal cases?
A: Venue in civil actio n s 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.
It is meant to provide convenience to th e parties, rather
than restrict their access to the courts as it relates to the
place of trial. Assuming that venue were improperly laid in
the court where the action was instituted, that would be
procedural, not a jurisdictional impediment. Improper venue
does not divest a court of its jurisdiction to take cognizance
of a case. In contrast, in crim inal actions, it is fundamental
th a t venue is ju risdictional it being an essential elem ent
of ju risd ictio n . (Nocum & Phil. Daily Inquirer vs. Lucio Tan,
G.R. No. 145022, Septem ber 23, 2005)

419
420 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Are rules on venue u n d er Rule 4 applicable in ex tra ­

ju d icial foreclosure of m ortgage?
A: No. The provisions of Rule 4 pertain to venue of action,
which an extrajudicial foreclosure is not.

Case Law

The exclusive venue of Makati City, as stipulated by

the parties and sanctioned by Sec. 4, Rule 4 of the Rules
of Court, cannot be made to apply to the petition for extra­
judicial foreclosure of mortgage filed by the respondent bank
because the provisions of Rule 4 pertain to venue of action,
which an extrajudicial foreclosure is not. (Spouses Hermes P.
Ochoa and Araceli D. Ochoa vs. China Banking Corporation,
G.R. No. 192877, March 23, 2011)

|| B. Rea lA c tio n s an d RealJPrope rtie s u n d c rth ^ L a w ^ Jj

Q: W hat is a real actio n ?

A: Real actio n s are a c tio n s involving title to , ow nership,
possession, or an y in te re s t in real property. If the real
property is merely incidental to the issue, such as if the action
is to recover damages to real property, the same is a personal
action.

Q: W hat are th e real p ro p erties u n d er th e New Civil Code

w hich can be th e su b ject o f a real a ctio n ?
A: Art. 415 o f th e New Civil Code enumerate the real/
immovable properties under the law. It states that:
“Art. 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all
kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of an immovable;
(3) Everything attached to an immovable in a fixed
manner, in such a way that it cannot be separated therefrom
without breaking the material or deterioration of the object;
 CHAPTER IX 421
VENUE IN GENERAL (RULE 4)

(4) Statues, reliefs, paintings or other objects for use

or ornamentation, placed in buildings or on lands, by the
owner of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;
(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of
land, and which tend directly to meet the needs of the said
industry or works;
(6) Animal houses pigeon-houses, beehives, fish ponds
or breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have them
permanently attached to the land, and forming a permanent
part of it; the animals in these places are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slug dumps, while the matter
thereof forms part of the bed, and waters either running or
stagnant;
(9) Docks and structures which, though floating, are
intended by their nature and object remain at a fixed place on
a river, lake or coast;
(10) Contracts for public works, and servitudes and
other real rights over immovable property.”

1. Venue In Real A ctions (Bar Exam inations 2017

and 2012)

Sec. 1, Rule 4 of th e 1997 Rules on Civil Procedure

provides for the rules on venue in real actions. It states that:
“Sec. 1. Venue o f real actions. — A ctions
affecting title to or p ossession o f real property, or
in terest therein, shall be com m enced and tried in
th e proper court, which has jurisdiction over the
area wherein th e real property involved, or a portion
thereof, is situated.
Forcible entry and detainer actions shall be
com m enced and tried in th e m unicipal trial court o f
422 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e m unicipality or c ity w herein th e real property

involved, or a portion thereof, is situ a ted .”

COMMENTS
Q: W hat are th e rules on venue in case of real a ctio n ?
A: The venue in real action are as follows, to wit:
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;
2) 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.

Q: How to d eterm in e w h eth er th e actio n is real or

perso n al?
A: Real actions is one real action is one that affects title to or
possession of real property, or an interest therein, and venue
lies where the property is located, while all other actions are
personal and venue lies on the residence of the parties.

Law:

The determinants of whether an action is of a real or

a personal nature have been fixed by the Rules of Court
and relevant jurisprudence. According to Sec. 1, Rule 4 of
the Rules of Court, a real action is one that affects title to
or possession of real property, or an interest therein. Such
action is to be commenced and tried in the proper court
having jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated, which explains why
the action is also referred to as a local action. In contrast, the
Rules of Court declares all other actions as personal actions.
Such actions may include those brought for the recovery of
personal property, or for the enforcement of some contract
or recovery of damages for its breach, or for the recovery of
damages for the commission of an injury to the person or
property.
 CHAPTER IX 423
VENUE IN GENERAL (RULE 4)

The venue of a personal action is the place where the

plaintiff or any of the principal 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, for which reason the action is
considered a transitory one. (Bank o f the Philippine Islands
vs. Hon. Judge Agapito L. Hontanosas, Jr., Regional Trial
Court, Branch 16, Cebu City, Silverio Borbon, Spouses Xerxes
a n d E rlinda Facultad, a n d XM F a cultad and Development
Corporation, G.R. No. 157163, June 25, 2014)

Q: How to determ ine venue?

A: It is a settled rule that what determines the venue of a
case is the primary objective for the filing of the case.

Case Law:

In Latorre v. Latorre, [The Court] ruled that:

Secs. 1 and 2, Rule 4 of the 1997 Rules of Civil
Procedure provide an answer to the issue of venue. Actions
affecting title to or possession of real property or an interest
therein (real actions) shall be commenced and tried in the
proper court that has territorial jurisdiction over the area
where the real property is situated. On the other hand, all
other actions (personal actions) shall be commenced and
tried in the proper courts where the plaintiff or any of the
principal plaintiffs resides or where the defendant or any of
the principal defendants resides, x x x.
In this jurisdiction, we adhere to the principle that the
nature of an action is determined by the allegations in the
Complaint itself, rather than by its title or heading. It is also
a settled rule that what determines the venue of a case is
the primary objective for the filing of the case, x x x While
the complaint of the petitioner was denominated as one
for “Recoveiy of Property or its Value,” all of his claims are
actually anchored on his claim of ownership over the one-
third (1/3) portion of the subject property. In his complaint,
petitioner sought the return of the portion of the subject
property or its value on the basis of his co-ownership thereof.
424 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Necessarily, his alternative claim for the value of the property

is still dependent on the determination of ownership, which
is an action affecting title to or possession of real property or
an interest therein. Clearly, petitioner’s claim is a real action
which should have been filed in the court where the property
lies, which in this case, is the RTC of Morong, Rizal. (Emiliano
S. Sam son vs. S p o u ses J o se a n d Ouillermina Gabor, Tanay
Rural Bank, Inc., a n d R egister o f D eed s o f Morong, Rizal, G.R.
No. 182970, July 23, 2014)

Q: W hat are th e classic exam ples o f a real a c tio n s?

A: The classic examples of a real actions, are as follows, to
wit:
1) A ction to an n u l Sale an d T itle is a real action.

Case Law:

An action to annul a real estate mortgage foreclosure

sale is no different from an action to annul a private sale of
real property. (Munoz vs. Llam as, 8 7 Phil. 7 3 7 [1950])
While it is true that petitioner does not directly seek the
recovery of title or possession of the property in question, his
action for annulment of sale and his claim for damages are
closely intertwined with the issue of ownership of the building
which, under the law, is considered immovable property,
the recovery of which is petitioner’s primary objective. The
prevalent doctrine is that an action for the annulment
or rescission of a sale of real property does not operate to
efface the fundamental and prime objective and nature of
the case, which is to recover said real property. It is a real
action. (Paglaum Management & Development Corp. and Health
Marketing Technologies, Inc. vs. Union Bank o f the Philippines,
Notary Public John Doe, and Register o f D eeds o f Cebu City and
Cebu Province, J. King & Sons Co., Inc., Intervenor, G.R. No.
179018, June 18, 2012)
2) A ction for a n n u lm en t or rescission of c o n tra c t
over a real p ro p erty is a real actio n .
 CHAPTER IX 425
VENUE IN GENERAL (RULE 4)

|| Case Law^Jj
The prevalent doctrine is that an action for the annulment
or rescission of a sale of real property does not operate to
efface the fundamental and prime objective and nature of
the case, which is to recover said real property. It is a real
action. (Paglaum Management & Development Corp. and Health
Marketing Technologies, Inc. vs. Union Bank o f the Philippines,
Notary Public John Doe, and Register o f Deeds o f Cebu City and
Cebu Province, J. King & Sons Co., Inc., Intervenor, G.R. No.
179018, June 18, 2012)

3) Action to annul a sale of a land and to recover

land. *4

Case Law:

When the plaintiff joins two or more causes of actions

based on the same act or occurrence, one of which is a real
action; For instance, in an action to annul a sale of a land and
to recover the land, For the purpose of venue determination,
the action is a real action and must be filed in the place where
the property is situated regardless of the residence of the
parties. (Emergency Loan Pawnshop, Inc. vs. Court o f Appeals,
G.R. No. 129184, February 28, 2010)
4) Action for revival of ju d g m ent — If the decision to
be revived involves real property then - venue is location of
the property of where any portion thereof is situated.

Q: Where will th e actio n for revival of judgm ent be filed?

A: If the action for revival of judgment affects title to or
possession of real property, or interest therein, then it is
a real action that must be filed with the court of the place
where the real property is located, and it is then a personal
action that may be filed with the court of the place where the
plaintiff or defendant resides.
426 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Section 6, Rule 39 of the 1997 Rules of Civil Procedure

provides that after the lapse of five (5) years from entry of
judgment and before it is barred by the statute of limitations,
a final and executory judgment or order may be enforced by
action. The Rule does not specify in which court the action for
revival of judgment should be filed.
In A ldeguer v. Gemelo, the Court held that:
x x x an action upon a judgment must be brought either
in the same court where said judgment was rendered or in the
place where the plaintiff or defendant resides, or in any other
place designated by the statutes which treat of the venue of
actions in general. (Em phasis supplied) but emphasized that
other provisions in the rules of procedure which fix the venue
of actions in general m ust be considered.
X X X X

Thus, the proper venue depends on the determination

of whether the present action for revival of judgment is a real
action or a personal action. Applying the afore-quoted rules
on venue, if the action for revival of judgment affects title to
or possession of real property, or interest therein, then it is
a real action that m ust be filed with the court of the place
where the real property is located. If such action does not
fall under the category of real actions, it is then a personal
action that may be filed with the court of the place where
the plaintiff or defendant resides. (Adelaida Infante, vs. Aran
Builders, Inc., G.R. No. 156596, A u gu st 24, 2007)
5) Action for specific performance for the delivery of
real property;
6) Action for interpleader over a real property (Rule
62 );
7) Action for quieting of title or removal of clouds (Rule
63);
8) Action for expropriation proceedings over a real
property (Rule 67);
9) Actions for foreclosure of real estate mortgage (Rule
68);
 CHAPTER IX 427
VENUE IN GENERAL (RULE 4)

10) Action for partition over a real property (Rule 69)\

11) Actions for forcible entry and unlawful detainer;
12) Action publiciancr,
13) Action reinmndicatoria.

C. Personal Action and Personal Properties:

Q: What is a personal action?

A: Personal action — One which is not founded upon the
privity of real rights or real property. An action for specific
performance is a personal action. (Siosoco vs. Court of
Appeals, 303 SCRA 186)
Q: What are th e personal properties under th e New Civil
Code which can be th e subject of a personal action?
A: The following properties are personal in nature under
Art. 416 of the New Civil Code. It states that:
“Art. 416. The following things are deem ed to be
personal property:
(1) Those movables susceptible of appropriation
which are not included in the preceding article;
(2) Real property which by any special provision
o f law is considered as personalty;
(3) Forces o f nature which are brought under
control by science; and
(4) In general, all things which can be
transported from place to place w ithout impairment
o f the real property to which th ey are fixed.”

Whereas under Art. 417 of th e New Civil Code, it also

enumerates other personal properties. It states that:
“Art. 417. The following are also considered as
personal property:
(1) Obligations and actions which have for their
object movables or demandable sums; and
428 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(2) Shares o f sto c k o f agricultural, com m ercial

and industrial e n titie s, although th ey m ay have real
estate."

Q: W hat are th e classic exam ples o f personal a ctio n ?

A: The classic examples of personal action are as follows, to
wit:
1) Action for the delivery of personal property or
replevin;
2) Action for Collection of Sum of Money;
3) Action for interpleader over personal property (Rule
62);
3) Action of partition over personal properties (Rule
69);
4) Action for damages;
5) Action for rescission of contract;
6) Action for specific performance for the delivery of
personal property;
7) Action for revival of judgment involving personal
properties;
8) Small Claims Cases;
9) Action for Injunction.

1. Venue in Personal A ctions (Bar E xam inations

2015 an d 2014):

Sec. 2, Rule 4 of th e 1997 R ules o f Civil Procedure,

provides for the rules on venue in personal actions. It states
that:
“Sec. 2 . Venue o f p erso n a l actions. — All other
action s m ay be com m enced and tried w here th e
plain tiff or any o f th e principal plaintiffs resides,
or where th e defendant or any o f th e principal
defendants resides, or in th e case o f a non-resident
defendant where he m ay be found, at th e e lectio n o f
th e plaintiff."
 CHAPTER IX 429
VENUE IN GENERAL (RULE 4)

COMMENTS
Q: W hat are th e rules on venue in personal actio n s?
A: Personal actions may be commenced, heard and tried in
the following geographical areas:
1) Where the plaintiff or any of the principal plaintiffs
resides; or
2) Where the defendant or any of the principal
defendants resides; or
3) In the case of a non-resident defendant where he
may be found, at the election of the plaintiff.

Case Law:

The venue in real actions shall be the proper court which

has territorial jurisdiction over the area wherein the real
property involved, or portion thereof, is situated. The venue
in personal actions is the court where the plaintiff or any of
the principal plaintiff resides, or where the defendant or any
of the principal defendants resides, or in the case of a non­
resident where he may be found, at the election of the plaintiff.
Sec. 2 of the Rules of Court indicates quiet clearly that when
there is more than one plaintiff in a personal action case,
the residences of the principal parties should be the basis in
determining the proper venue. (Irene Marcos-Araneta, et al.
vs. Court o f Appeals, et al., G.R. No. 154096, August 22, 2008)
Q: W hat is th e req u irem en t on venue of personal
actio n s?
A: The plaintiff or defendant must be resident of the place
where the action must be instituted.

Case Law:

It is a legal truism that the rules on the venue of personal

actions are fixed for the convenience of the plaintiffs and
their witnesses. Equally settled, however, is the principle
that choosing the venue of an action is not left to a plaintiffs
caprice; the matter is regulated by the Rules of Court.
430 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The petitioners’ complaint for collection of sum of

money against the respondents is a personal action as it
primarily seeks the enforcement of a contract. The Rules
give th e p lain tiff th e o p tio n o f choosing w here to file his
com plaint. He can file it in th e place (1) w here he him self
or any o f th e m resides, or (2) w here th e d efendant or any
of th e d efen d an ts resides o r m ay be found. The plaintiff or
the defendant must be residents of the place where the action
has been instituted at the time the action is commenced.
(Theodore and Nancy Ang, represented by Eldrige Marvin B.
Ceron vs. Spouses Alan and Em Ang, G.R. No. 186993, August
22 , 2012 )

Q: W here is th e venue o f a n actio n to recover deficiency

in case o f extrajudicial foreclosure o f m ortgage?
A: An action to recover the deficiency after the extrajudicial
foreclosure of the real property mortgage is a personal action,
hence, venue lies on the residence of the parties.

Case Law:

It is basic that the venue of an action depends on whether

it is a real or a personal action. The determinants of whether
an action is of a real or a personal nature have been fixed by
the Rules of Court and relevant jurisprudence. According to
Sec. 1, Rule 4 of the Rules of Court, a real action is one that
affects title to or possession of real property, or an interest
therein. Thus, an action for partition or condemnation of, or
foreclosure of mortgage on, real property is a real action. The
real action is to be commenced and tried in the proper court
having jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated, which explains why
the action is also referred to as a local action. In contrast, the
Rules of Court declares all other actions as personal actions.
Such actions may include those brought for the recovery of
personal property, or for the enforcement of some contract
or recovery of damages for its breach, or for the recovery of
damages for the commission of an injury to the person or
property. The venue of a personal action is the place where
 CHAPTER IX 431
VENUE IN GENERAL (RULE 4)

the plaintiff or any of the principal 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, for which reason the action is
considered a transitory one.
Based on the distinctions between real and personal
actions, an action to recover the deficiency after the
extrajudicial foreclosure of the real property mortgage is a
personal action, for it does not affect title to or possession
of real property, or any interest therein. (BPI Family Savings
Bank, Inc. vs. Spouses Benedicto and Teresita Yujuico, G.R.
No. 175796, July 22, 2015)

Q: W here will be th e venue o f th e actio n if th e plain tiff

is n o t a re sid e n t o f th e P hilippines?
A: There can be no election as to the venue of the filing
of a complaint when the plaintiff has no residence in the
Philippines, in such case, the complaint may only be filed in
the court of the place where the defendant resides.

Case Law:

However, if the plaintiff does not reside in the Philippines,

the complaint in such case may only be filed in the court of
the place where the defendant resides. In Cohen and Cohen
vs. Benguet Commercial Co., Ltd., th is C ourt held th a t
th e re can be no electio n as to th e venue of th e filing of
a co m plaint w hen th e p lain tiff h as no residence in th e
Philippines. In su ch case, th e com p lain t m ay only be filed
in th e co u rt o f th e place w here th e defendant resides.
Thus:
Sec. 377 provides that actions of this character “may
be brought in any province where the defendant or any
necessary party defendant may reside or be found, or in any
province where the plaintiff or one of the plaintiffs resides,
at the election of the plaintiff.” The plaintiff in this action
has no residence in the Philippine Islands. Only one of the
parties to the action resides here. There can be, therefore, no
election by plaintiff as to the place of trial. It must be in the
432 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

province where the defendant resides, x x x. (Emphasis ours)

(Theodore and Nancy Ang, represented by Eldrige Marvin B.
Cerron vs. Spouses Alan and Em Ang, G.R. No. 186993, August
22 , 2012 )

Q: W hat is th e n atu re o f a n actio n for N ullity of Deed of

Sale w ith R ight to R epurchase b u t w ith o u t allegation or
prayer for th e recovery o f p o ssession in th e com plaint?
A: The action the nature of an action is determined by the
allegations in the complaint, and since the complaint did not
allege or pray for the recovery or reconveyance of the real
property, then it is a personal action, venue lies with the
residence of the party.

Case Law:

By weight of jurisprudence, the nature of an action is

determined by the allegations in the complaint. In turn, the
nature of the action determines its proper venue. Rule 4 of
the Rules of Court provides the rules on the situs for bringing
real and personal actions.
What determines the venue of a case is the primary
objective for the filing of the case. On one hand, if the plaintiff
seeks the recovery of personal property, the enforcement of
a contract or the recovery of damages, his complaint is a
personal action that may be filed in the place of residence
of either party. On the other hand, if the plaintiff seeks the
recovery of real property, or if the action affects title to real
property or for the recovery of possession, or for partition or
condemnation of, or foreclosure of mortgage on, real property,
then the complaint is a real action that m ust be brought
before the court where the real property is located.
In the Complaint filed with the court a quo, petitioner
sought the nullification of the Deed of Sale with Right to
Repurchase on the strength of this claim: he did not sign the
same nor did he execute any special power of attorney in favor
of his late wife to do so in his behalf. But, as there was no
allegation that the possession and title to the property have
been transferred to respondent, nowhere in the Complaint
 CHAPTER IX 433
VENUE IN GENERAL (RULE 4)

did petitioner allege or pray for the recovery or reconveyance

of the real property.
Evidently, as the Complaint was not concerned with
the title to or recovery of the real property, it was a personal
action. Thus, Davao City, where both the petitioner and the
respondent reside is the proper venue for the complaint.
The appellate court therefore committed a reversible error in
affirming the trial court’s dismissal of the case for improper
venue. (Rudy L. R acpan vs. Sharon Barroga-Haigh, G.R. No.
2 34499, June 6, 2018)

Q: W here will be th e venue o f personal actio n involving

ju rid ical p erso n alities?
A: For personal actions involving juridical personalities
“r e s id e n f is to be construed as the place where the principal
place of business is found.

Taking into account that no exception can be applied

in this case, the venue, then, is where the plaintiff or any
of the principal plaintiffs resides, or where the defendant or
any of the principal defendants resides, . . . at the election of
the plaintiff. For a corporation, its residence is considered
the place where its principal office is located as stated in its
Articles of Incorporation. (Hygienic Packaging Corporation vs.
Nutri-Asia, Inc., Doing B u sin ess Under the, Name a n d S tyle o f
UFC Philippines [Formerly Nutri-Asia, Inc.], G.R. No. 2 0 1 3 0 2 ,
Jan u ary 23, 2019)

Q: Where will be th e venue o f an a ctio n to revive

ju d g m en t?
A: It may be filed in the residence of the of the plaintiff or
defendant in case personal action or location of the property
in case of real action based on the venue in the original action.
434 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

In action for revival of judgment may be filed either “in

the same court where said judgment was rendered or in the
place where the plaintiff or defendant resides, or in any other
place designated by the statutes which treat of the venue of
actions in general. In this case, respondent filed the Petition
for Revival of Judgment in the same court which rendered the
Decision dated August 30, 1999. (Heirs of Numeria.no Miranda,
Sr., Namely: Cirila [Deceased], Comelio, Umeriano, Jr., Erlinda,
Lolita, Rufina, Danilo, Alejandro, Felimon, Teresita, Elizabeth
and Analiza, All Sumamed Miranda vs. Pablo R. Miranda, G.R.
No. 179638, July 8, 2013)

2. Venue o f A ctions A gainst Non

Sec. 3, Rule 4 o f th e 1997 Rules of Civil Procedure

provides for the rules on venue in an action in case of non­
resident defendants, to wit:
"Sec. 3. Venue o f a ction s a g a in st non-residents.
— If any o f th e defendants does n ot reside and is not
found in th e Philippines, and th e action affects th e
personal sta tu s o f th e plaintiff, or any property o f
said defendant located in th e Philippines, th e action
m ay be com m enced and tried in th e court o f th e place
where th e plain tiff resides, or where th e property or
any portion th ereof is situated or found.”

COMMENTS
Q: W hat is th e rule on venue in case of n o n -resid en t
d efen d an ts?
A: If any of the defendants does not reside and is not found
in the Philippines, and the actio n affects th e personal
s ta tu s o f th e plaintiff, or any p roperty of said defendant
located in th e Philippines, the action may be commenced
and tried in the court of:
 CHAPTER IX 435
VENUE IN GENERAL (RULE 4)

a) The place where the plaintiff resides (quasi in

rem); or
b) Where the property or any portion thereof is situated
or found (in rem).

lj^ 3 ^ ^ n -A p p U c a 1 ^ th e R u le io n V e n u e : ||

Sec. 4, Rule 4 o f th e 1997 Rules of Civil P rocedure

enumerates the instances where the Rules on venue shall not
apply. It provides that:

“Sec. 4. When Rule not applicable. — This shall

not apply.
In those cases where a specific rule or law
provides otherwise; or
Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof.”

COMMENTS
Q: W hat are th e in sta n c e s w here th e rules on venue is
n o t applicable?
A: The Rules on venue shall not apply in the following
circumstances:
1) In those cases where a specific rule or law provides
otherwise; or
2) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue.

[| Case Law: 11

Rule 4 of the Rules of Civil Procedure provides the rules

on venue in filing an action. The general rules on venue admit
of exceptions in Section 4 thereof, i.e., where a specific rule or
law provides otherwise, or when the parties agreed in writing
before the filing of the action on the exclusive venue thereof.
436 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Stipulations on venue, however, may either be permissive

or restrictive, stipulations as to venue may be restrictive in
the sense that the suit may be filed only in the place agreed
upon, or merely permissive in that the parties may file their
suit not only in the place agreed upon but also in the places
fixed by law. As in any other agreement, what is essential is
the ascertainment of the intention of the parties respecting
the matter.
In the present case, Spouses Ramos had validly waived
their right to choose the venue for any suit or action arising
from the mortgages or promissory notes when they agreed
to the limit the same to Makati City only and nowhere else.
True enough, the stipulation on the venue was couched in a
language showing the intention of the parties to restrict the
filing of any suit or action to the designated place only. It is
crystal clear that the intention was not just to make the said
place an additional forum or venue but the only jurisdiction
where any suit or action pertaining to the mortgage contracts
may be filed.
There being no showing that such waiver was invalid
or that the stipulation on venue was against public policy,
the agreement of the parties should be upheld. (Planters
Development Bank vs. Victoriano and Melanie Ramos, G.R. No.
228617, September 20, 2017)
Q: W hat is th e req u irem en t in o rder th a t th e stip u latio n
as to venue will be exclusive?
A: As regards restrictive stipulations on venue, it must
be shown that such stipulation is exclusive by qualifying
or restrictive words, such as “exclusively,” “waiving for
this purpose any other venue,” “shall only” preceding the
designation of venue, “to the exclusion of the other courts,”
or words of similar import.

Case Law:

Based [from Rule 4], the general rule is that the venue of
real actions is the court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is
 CHAPTER IX 437
VENUE IN GENERAL (RULE 4)

situated; while the venue of personal actions is the court which

has jurisdiction where the plaintiff or the defendant resides,
at the election of the plaintiff. As an exception, jurisprudence
in Legaspi vs. Rep. o f the Phils, instructs that the parties,
through a written instrument, may either introduce another
venue where actions arising from such instrument may be
filed, or restrict the filing of said actions in a certain exclusive
venue, viz.:
The parties, however, are not precluded from agreeing in
writing on an exclusive venue, as qualified by Sec. 4 of the
same rule. Written stipulations as to venue may be restrictive
in the sense that the suit may be filed only in the place agreed
upon, or merely permissive in that the parties may file their
suit not only in the place agreed upon but also in the places
fixed by law. As in any other agreement, what is essential is
the ascertainment of the intention of the parties respecting
the matter.
As regards restrictive stipulations on venue, jurisprudence
instructs that it must be shown that such stipulation is
exclusive. In the absence of qualifying or restrictive words,
such as “exclusively,” “waiving for this purpose any other
venue,” “shall only” preceding the designation of venue, “to
the exclusion of the other courts,” or words of similar import,
the stipulation should be deemed as merely an agreement on
an additional forum, not as limiting venue to the specified
place. (Virgilio C. Briones vs. Court o f A ppeals, Special 8th
Division an d C ash A sia Credit Corporation, G.R. No. 2 0 4 444,
Jan u ary 14, 2015)

Q: Will exclusive stip u latio n on venue be enforced when

th e co m plaint assails th e validity o f th e agreem en t?
A: No, If the complaint directly assailing the validity of the
written instrument itself should not be bound by the exclusive
venue stipulation contained therein and should be filed in
accordance with the general rules on venue.

In this relation, case law likewise provides that in cases

where the complaint assails only the terms, conditions,
438 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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and/or coverage of a written instrument and not its validity,

the exclusive venue stipulation contained therein shall still
be binding on the parties, and thus, the complaint may
be properly dismissed on the ground of improper venue.
Conversely, therefore, a complaint directly assailing the
validity of the written instrument itself should not be bound by
the exclusive venue stipulation contained therein and should
be filed in accordance with the general rules on venue. To
be sure, it would be inherently consistent for a complaint of
this nature to recognize the exclusive venue stipulation when
it, in fact, precisely assails the validity of the instrument in
which such stipulation is contained.
In this case, the venue stipulation found in the subject
contracts is indeed restrictive in nature, considering that it
effectively limits the venue of the actions arising therefrom to
the courts of Makati City. However, it must be emphasized
that Briones’s complaint directly assails the validity of the
subject contracts, claiming forgery in their execution. Given
this circumstance, Briones cannot be expected to comply with
the aforesaid venue stipulation, as his compliance therewith
would mean an implicit recognition of their validity. Hence,
pursuant to the general rules on venue, Briones properly
filed his complaint before a court in the City of Manila
where the subject property is located. (Virgilio C. Briones vs.
Court o f Appeals, Special 8th Division and Cash Asia Credit
Corporation, G.R. No. 204444, January 14, 2015)

Q: May th e p artie s stip u la te in th e c o n tra c t th e venue

for e jectm en t case?
A: Yes, the Court upheld the validity of a stipulation in a
contract providing for a venue for ejectment actions other
than that stated in the Rules of Court.

|| Case Law ^Jj

While Sec. 1, Rule 4 o f th e Rules o f C ourt states that

ejectment actions shall be filed in “the municipal trial court of
the municipality or city wherein the real property involved x
x x is situated,” Sec. 4 o f th e sam e Rule provides th a t th e
rule shall n o t apply "w here th e p artie s have validly agreed
 CHAPTER IX 439
VENUE IN GENERAL (RULE 4)

in w riting before th e filing o f th e actio n on th e exclusive

venue th ereo f.” Precisely, in this case, the parties provided
for a different venue. In Villanueva vs. Judge Mosqueda,
etc., et al., the Court upheld the validity of a stipulation in
a contract providing for a venue for ejectment actions other
than that stated in the Rules of Court. Since the unlawful
detainer action is connected with the contract, Union Bank
rightfully filed the complaint with the MeTC of Makati City.
(Union Bank of the Philippines vs. Maunlad Homes, Inc. and
All Other Persons or Entities Claiming Rights Under It, G.R. No.
190071, August 15, 2012)

Q: When to agree and stip u late on th e venue of th e

actio n ?
A: The parties may agree and stipulate in writing on the
exclusive venue of any litigation between them before the
filing of an action.

Case Law:

Sec. 4, Rule 4 of th e Revised Rules of Civil Procedure

allows the parties to agree and stipulate in w riting, before th e
filing of an action, on the exclusive venue of any litigation
between them. Such an agreement would be valid and
binding provided that the stip u latio n on th e chosen venue
is exclusive in n atu re o r in in te n t, th a t it is expressed in
w riting by th e p artie s th e re to , and th a t it is en tered in to
before th e filing o f th e su it. (Pilipino Telephone Corporation
vs. Delfi.no Tecson, G.R. No. 156966, May 7, 2004)
Q: W hat is th e effect o f absence o f restrictiv e words in
th e agreem ent as regards venue?
A: In the absence of qualifying or restrictive words, the
stipulation should be deemed as merely an agreement on an
additional forum, not as limiting venue to the specified place.

In Sps. Lantin vs. Lantion, this Court explained that a

venue stipulation must contain words that show exclusivity
or restrictiveness, as follows:
440 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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At the outset, we m ust make clear that under Sec. 4(b)

of Rule 4 of the 1997 Rules of Civil Procedure, the general
rules on venue of actions shall not apply where the parties,
before the filing of the action, have validly agreed in writing
on an exclusive venue. The mere stipulation on the venue of
an action, however, is not enough to preclude parties from
bringing a case in other venues. The parties m ust be able
to show that such stipulation is exclusive. In the absence
of qualifying or restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not
as limiting venue to the specified place. (Paglaum M anagem ent
& D evelopm ent Corp. a n d H ealth Marketing Technologies, Inc.
vs. Union B ank o f the Philippines, N otary Public John Doe, a n d
R egister o f D eeds o f Cebu City a n d Cebu Province, J. King &
Sons Co., Inc., G.R. No. 179018, June 18, 2012)

Q: Can a sales invoice or p u rch ase ord er be a valid

ag reem en t as to th e v en u e o f th e a ctio n ?
A: No. The purpose of the Sales Invoices is merely to
acknowledge that the representative of the party received the
goods in good condition, and since there is no stipulation
then the venue lies with the principal office of the corporation.

Parties are allowed to constitute any stipulation on

the venue or mode of dispute resolution as part of their
freedom to contract under Article 1306 of the Civil Code
of the Philippines. Here, however, the records lack any
written contract of sale containing the specific terms and
conditions agreed upon by the parties. The parties failed to
provide evidence of any contract, which could have contained
stipulation on the venue of dispute resolution. Both petitioner
and respondent claim that the Sales Invoices and Purchase
Orders contained a stipulation on where to raise the issues
on any conflict regarding the sale of plastic containers. Each
party also insists that the other party accepted the venue
stipulation in the Sales Invoices or the Purchase Orders when
its representative signed them. Upon examination, this Court
cannot consider the documents as contracts that would bind
the parties as to the venue of dispute resolution.
 CHAPTER IX 441
VENUE IN GENERAL (RULE 4)

A closer look at the Sales Invoices issued by petitioner

reveals that above the signature of respondent’s representative
is the phrase, “Received the above goods in good order and
condition”. Clearly, the purpose of respondent’s representative
in signing the Sales Invoices is merely to acknowledge that he
or she has received the plastic containers in good condition.
He or she did not affix his or her signature in any other
capacity except as the recipient of the goods. To extend the
effect of the signature by including the venue stipulation
would be to stretch the intention of the signatory beyond his
or her objective. This Court, then, cannot bind respondent to
the other stipulations in the Sales Invoices.
A scrutiny of the Purchase Orders issued by respondent
also reveals that above the signature of petitioner’s
representative is the phrase Acknowledged By (Supplier). Since
the Purchase Orders indicated how many pieces of plastic
containers respondent wanted to order from petitioner, the
signatory merely affixed his or her signature to acknowledge
respondent’s order. Moreover, the Purchase Orders included
a note stating that the [Purchase Order] must be DULY
acknowledged to facilitate payment.
Since there is no contractual stipulation that can
be enforced on the venue of dispute resolution, the venue
of petitioner’s personal action will be governed by the
1997 Revised Rules of Civil Procedure. Rule 4. It has been
consistently held that an action for collection of sum of money
is a personal action. Taking into account that no exception
can be applied in this case, the venue, then, is where the
plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, . . . at
the election of the plaintiff. For a corporation, its residence
is considered the place where its principal office is located
as stated in its Articles of Incorporation. (Hygienic Packaging
Corporation vs. Nutri-Asia, Inc., Doing B u sin ess Under the,
Name an d Style o f UFC Philippines [Formerly Nutri-Asia, Inc.],
G.R. No. 201302, January 23, 2019)
Q: W hat Is th e n atu re o f th e ju d g m en t rendered by th e
co u rt in case o f denial o f th e application of th e stip u latio n
in th e c o n tra c t?
A: If at all, the error of the court was a mere error of
judgment which did not constitute grave abuse of discretion.
442 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

In essence, PPC was arguing that the stipulation on venue

in case of an action in the Contract did not apply because of
the inclusion of PGIC, which is a non-party hereto. Since RTC
applied the exclusive venue rule, PPC took the position that
RTC acted with grave abuse of discretion amounting to lack
and/or excess of jurisdiction.
Section 2, Rule 4 of the Rules sets forth the general rule
regarding the venue of personal actions:
SEC. 2. Venue of personal actions. — All other actions
may be commenced and tried where the plaintiff or any of
the principal 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. (2[b]a)
The exceptions are provided in Section 4, Rule 4, viz.:
SEC. 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.
Even on the assumption that the RTC erred in its
determination of the proper venue in this case, the Court is
not persuaded that the RTC manifestly disregarded the basic
rules and procedures or acted with obstinate disregard of
basic and established rule of law or procedure. If at all, the
error of the RTC, assuming there was any, was a mere error of
judgment which did not constitute grave abuse of discretion.
Given the stipulation on venue in the Contract, where
exclusivity is provided, the RTC had enough legal basis to
apply Section 4(b), Rule 4 and not Section 2, Rule 4. (Pillars
Property Corporation vs. C entury Comm unities Corporation,
G.R. No. 20 1 0 2 1 , March 4, 2019)
 CHAPTER IX 443
VENUE IN GENERAL (RULE 4)

4. Rules on Venue u n d er Special Rules of Procedure:

a) Venue in Sm all Claim s Case:

Sec. 7 o f Revised 2016 Rules on Small Claims Cases

(A.M. No. 08-8-7-SC) provide for rules on venue of the action.
It states that:
“Sec. 7. Venue. — The regular rules on venue
shall apply.
However, If the plaintiff is engaged in th e business
o f lending, banking and sim ilar a ctivities, and has
a branch w ithin th e m unicipality or c ity where the
defendant resides, th e Statem ent o f C laim /s shall be
filed where th at branch is located.”

COMMENTS
Q: W hat are th e rules on venue in sm all claim s cases?
A: The rules on venue in small claims cases shall be as
follows, to wit:
1) The regular rules on venue shall apply.
2) However, if the plaintiff is engaged in the business
of lending, banking and similar activities, and has a branch
within the municipality or city where the defendant resides,
the Statement of Claim/s shall be filed where that branch is
located.

b) Venue in Civil F orfeitu

Sec. 3, T itle II o f A.M. No. 05-01-04-SC (December

15, 2005) provides for the venue in civil forfeiture of property
relating to unlawful activity or to a money laundering offenses.
It states that:
“Sec. 3. Venue o f ca ses cogn izable by th e
R egional T rial Court. — A p e titio n for civ il forfeiture
sh all be filed in any R egional Trial Court o f th e ju d icial
444 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

region where th e m onetary instrum ent, property, or

proceeds representing, involving, or relating to an
unlawful activity, or to a money laundering offenses
are located; P rovided how ever, That, where all or
any portion of the m onetary instrum ent, property,
or proceeds is located outside the Philippines, the
petition may be filed in the regional trial court in
Manila of th e judicial region where any portion of
the monetary instrum ent, property, or proceeds is
located, at the option of the petitioner."

COMMENTS
Q: Where will be th e venue o f a civil forfeiture
proceedings?
(1) P roperty w ith in th e P h ilippines;
The petition for civil forfeiture shall be filed in:
1.a) Any Regional Trial Court of the judicial region where
the monetary instrument, property, or proceeds representing,
involving, or relating to an unlawful activity, or to a money
laundering offenses are located.
(2) O utside th e P hilippines:
The petition for civil forfeiture shall be filed in:
2.a) Where all or any portion of the monetary
instrum ent, property, or proceeds is located outside the
Philippines, the petition may be filed in the regional trial
court in Manila of the judicial region where any portion of
the monetary instrum ent, property, or proceeds is located,
at the option of the petitioner.

|| c) R e m e d y J n ^ c a s e ^ ^

Q: W hat is th e rem edy o f th e defen d ant In case venue is

im properly laid?
A: In case venue is improperly laid, it can be raised in the
answer as an affirmative defense under Sec. 12, Rule 8.
 CHAPTER IX 445
VENUE IN GENERAL (RULE 4)

P rocedural Basis:

Sec. 12, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10*20) provide for
the rules on affirmative defenses that may be raised in the
answer. It states that:
“Sec. 12. A ffirm ative defenses. — (a) A defendant
■hall 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 h as no jurisdiction over the
person of the defending party;
2. That venue is improperly laid;”

d) Rule on M otu Proprio D ism issal in Case Im proper

Venue:

Q: Can th e re be a m otu proprio dism issal of th e actio n

in case im proper v enue?
A: No. The court cannot motu proprio dismiss the case
based on improper venue since it is only for the convenience
of the parties and not jurisdictional, and it is not one of the
grounds mentioned under Sec. 1 of Rule 9.

Case Law:

Venue is procedural, not jurisdictional, and hence, may

be waived. Venue is the place of trial or geographical location
in which an action or proceeding should be brought. In civil
cases, venue is a matter of procedural law. A party’s objections
to venue must be brought at the earliest opportunity either
in a motion to dismiss or in the answer, otherwise, the
objection shall be deemed waived. When the venue of a civil
is improperly laid, the court cannot motu proprio dismiss the
case.
Furthermore, the rules on venue are intended to provide
convenience to the parties, rather than restrict their access to
446 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the courts. It simply arranges for the convenient and effective

transaction of business in the courts and do not relate to
their power, authority, or jurisdiction over the subject matter
of the action.
The Court notes that when petitioner filed her first
petition before the RTC Br. 17, she had already pleaded
exemption from complying with the rule on venue by filing
her petition in her place of domicile, she being a mere student
who had no means to engage a lawyer to file on her behalf.
Records show that the OSG registered no objection to such
venue. During the entire course of the proceedings thereat,
venue was never raised as an issue.
Therefore, it was erroneous for the RTC Br. 14 to motu
proprio dismiss the re-filed petition before it on the ground
of improper venue. Since convenience is the raison d ’etre of
the rules on venue, and as it was established that Davao
City is the residence of petitioner, and as further pointed out
by the OSG, OSA has a field office located at Ango Building,
Cabaguio Ave., Davao City, then Davao City it he most
convenient venue for the parties.
Moreover, it is well-settled that courts may not motu
proprio dismiss the case on the ground of improper venue.
Without any objection at the earliest opportunity, as in a MTD
or answer, it is deemed waived. (Cabrera vs. The Philippine
Statistic Authority, G.R. No. 241369, June 3, 2019)

e) Rule on M otu Proprio D ism issal in Case Im proper

Venue u n d er th e Rules on Sum m ary Procedure:

Q: Can th e c o u rt m otu proprio dism iss an actio n on th e

ground o f im proper ven u e u n d er th e Rules on Sum m ary
P rocedure?
A: Yes, after the court determines that the case falls under
summary procedure, it may, from an examination of the
allegations therein and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.
 CHAPTER IX 447
VENUE IN GENERAL (RULE 4)

P rocedural Basis:

Sec. 4 o f th e R ules on S u m m ary P ro ced u re provides

for the outright dismissal of the action on any of the
grounds for the dismissal of the action which includes
venue. It states that:
"Sec. 4. D uty o f court. — After the court
determines th at the case falls under summary
procedure, it may, from an examination of the
allegations therein and such evidence as may be
attached thereto, dismiss the case outright on any of
the grounds apparent therefrom for the dismissal of a
civil action.”

f) Rule on M otu Proprio D ism issal in Case Im proper

Venue u n d er th e 2016 Revised R ules on Sm all
Claim s Cases:

Q: Can th e c o u rt m otu proprio dism iss th e actio n on

th e ground o f im proper v en u e u n d er th e 2016 Revised
Rules on Sm all Claim s C ases?
A: Yes, After the court determines that the case falls under
these Rules, it may, from an examination of the allegations of
the Statement of Claim/s and such evidence attached thereto,
by itself, dismiss the case outright on any of the grounds for
the dismissal of the case.

P rocedural Basis:

Sec. 11 o f th e R u les o n S m all C laim s C ases (A.M.

No. 08-8-7-SC, as amended) provides for the motu proprio
dism issal of the case on any of the grounds for dismissal.
It states that:
"Sec. 11. D ism issal o f th e Claim. — After the
court determines th at the case falls under these Rules,
it may, from an examination of the allegations of the
Statem ent of Claim/s and such evidence attached
thereto, by itself, dismiss the case outright on any of
448 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the grounds for the dismissal of the case. The order of

dismissal shall state if it is with or without prejudice.
If, during the hearing, the court is able to
determine that there exists a ground for dismissal of
the Statem ent of Claim/s, the court may, by itself,
dismiss the case even if such ground is not pleaded in
the defendant’s Response, x x x”

g) N ature o f D ism issal o f th e A ction Based on Im proper

Venue:

Q: May an o rder o f dism issal on th e ground of im proper

venue be appealed?
A: No, by express provision of Sec. 1, Rule 41 that, no appeal
may be taken from an order of dismissal without prejudice.

|| Procedural B asisij

Sec. 1 o f Rule 41 o f th e 1997 Rules on Civil P rocedure

provides for the nature of dismissal without prejudice that:
“Sec. 1. Subject o f appeal. — An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular m atter therein
when declared by these Rules to be appealable.
No appeal may be taken from:
X X X

(g) An order dismissing an action without

prejudice.”

h) Rem edy in case o f D ism issal <

Im proper Venue:

Q: W hat is th e rem edy o f th e p lain tiff in case o f dism issal

of th e actio n based on im proper v en u e?
A: The remedy for the aggrieved party is to refile the case
since the dismissal is without prejudice, and which is not
appealable under Sec. 1, Rule 41(g).
 CHAPTER IX 449
VENUE IN GENERAL (RULE 4)

|| P rocedural BasU^J
Sec. 13, Rule 15 o f th e 2019 A m endm ents to th e
1997 R ules o f Civil P rocedure (A.M. No. 19-10-20) provides
for the effect of the dismissal of the action on the ground of
improper venue. It states that:
MSec. 5. E ffect o f dism issa l. — Subject to the
right of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of Section 1 hereof
shall bar the re-filing of the same action or claim.”
 CHAPTER X

UNIFORM PROCEDURE IN TRIAL COURTS

(RULE 5)

1. Uniform Procedure:

Sec. 1 of Rule 5 o f th e 1997 Rules on Civil P rocedure

provides for the rule on uniform procedure in the Municipal
Trial Court and Regional Trial Courts. It states that:
"Sec. 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.” (n)

COMMENTS:
Q: W hat is th e n a tu re o f th e app licatio n o f th e procedure
in th e M unicipal Trial C o u rt? Exceptions:
A: 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, (n)

[| 2. M eaning o f th e Term s:

Sec. 2 o f Rule 5 o f th e 1997 Rules on Civil P rocedure

provides for the meaning of Municipal Trial Courts. It states
that:

450
 CHAPTER X 451
UNIFORM PROCEDURE IN TRIAL COURTS
(RULE 5)
“Sec. 2. Meaning o f term s. —The term “Municipal
Trial Courts” as used in these Rules shall include
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts, and Municipal Circuit
Trial Courts.” (la)

COMMENTS:
Q: W hat is th e m eaning of th e te rm M unicipal Trial
C ourts?
A: The term “Municipal Trial Courts” as used in these
Rules shall include Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts.
 PART II
CHAPTER I

I. PRELIMINARY CONSIDERATION

A. Basic C oncept.

Q: W hat is th e title o f th e ru le?

A: The title of the rule is 2019 Amendments to the 1997
Rules on Civil Procedure.
Q: W hen will th e rules ta k e effect?
A: The 2019 Proposed Amendments to the 1997 Rules of
Civil Procedure shall take effect on May 1, 2020, following
its publication in the Official Gazette or in two newspapers of
national circulation.
Q: W hat is th e C o n stitu tio n al basis o f th e above am ended
rules?
A: Pursuant to Section 5(5), Article VIII of the 1987
Constitution, the Supreme Court is vested with the power
to promulgate rules concerning the pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the underprivileged.
Q: W hat is th e coverage o f th e app lication of th e rules?
A: The 2019 Proposed Amendments to the 1997 Rules of
Civil Procedure shall govern all cases filed after their effectivity
on May 1, 2020, and also all pending proceedings, except to

452
 CHAPTER I 453
I. PRELIMINARY CONSIDERATION

the extent that in the opinion of the court, their application

would not be feasible or would work injustice, in which case
the procedure under which the cases were filed shall govern.
Q: W hat are th e objectives o f th e ru les?
A: The policy of Chief Justice Lucas P. Bersamin is to
prioritize the reform of procedural laws in order to make
the disposition of every action and proceeding more just,
speedy and inexpensive, as well as to prevent delays and to
decongest the courts, the Sub-Committee for the Revision
of the 1997 Rules of Civil Procedure was created to review
possible amendments to the Rules per Memorandum Order
No. 04-2019 dated January 14, 2019.
 CHAPTER II
PLEADINGS

I. RULE 6: KINDS OF PLEADINGS

Ej D efinition o f Pleadings:

Sec. 1, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10*20) defines
pleading. It states that:
"Sec. 1. Pleadings defined. — Pleadings are
the written statem ents of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment.” (1)

COMMENTS

Q: W hat is a pleading?
A: Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court for
appropriate judgment.

Q: Is m em orandum a pleading?
A: No, the Supreme Court held in one case that, “A
memorandum is not a pleading as contemplated under the
Rules of Court.” (San Miguel Corporation vs. E. Razon Inc., CV-
6334, April 24, 1984)

Q: Is a m o tio n a pleading? (2006 Bar Exam ination)

A: No, motion is defined under Sec. 1, Rule 15 as an
application for a relief other than by a pleading.
454
 CHAPTER II 455
PLEADINGS

Q: W hat are th e K inds o f Pleadings u n d er th e R ules?

A: The kinds of pleadings under the Rules are:
a) Initiatory pleading; and
b) Responsive pleading.

Q: D istin ctio n s betw een In itiato ry Pleading and

R esponsive Pleading?

Initiatory Pleading Responsive Pleading

a) It is a pleading which com ­
m ences a n action con­
taining plaintiffs cause or
causes of action.
b) It is required to be verified.
c) It should contain a certifi­
cation of non-forum shop­
ping.
d) Paym ent of docket and
other lawful fees are
required. (Rule 141)
a) It is a pleading which re­
sponds to the adverse
p arty ’s pleading.
b) It is not required to be
verified as a general rule,
u n less the rules or law
otherwise requires.
c) It need not contain a c e r­
tification of non-forum
shopping, u n less it is ac­
com panied by c o u n te r­
claim or cross-claim .
d) Paym ent of docket and
other lawful fees are not
required.

2. Pleadings Allowed u n d er th e Rules:

Sec. 2, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) enumerates
the pleadings allowed under the said rules. It states that:
M8ec. 2. P leadings allow ed. — The claims of a
party are asserted in a complaint, counterclaim,
cross-claim, third (fourth, etc.)-party complaint, or
complaint-in -intervention.
456 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The defenses of a party are alleged in the answer

to the pleading asserting a claim against him or her.
An answer may be responded to by a reply only if
the defending party attaches an actionable document
to the answer. (2a)”

COMMENTS:
Q: W here will th e claim s o f th e p arty be a sse rte d ?
A: The claims of a party are asserted in the following, to wit:
1) Complaint;
2) Counterclaim;
3) Cross-claim; third (fourth, etc.)-party complaint; or
4) Complaint-in-intervention.

Q: W here will th e defense of a p arty be a sse rte d ?

A: The defenses of a party are alleged in the answer to the
pleading asserting a claim against him or her.

Q: How will th e answ er be responded to ?

A: An answer may be responded to by a reply only if the
defending party attaches an actionable document to the
answer.

3. C om plaint Defined:

Sec. 3, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) defines
complaint. It states that:
“Sec. 3. Complaint. — The complaint is the
pleading alleging the plaintiffs or claiming party’s
cause or causes of action. The names and residences
of the plaintiff and defendant m ust be stated in the
complaint.”
 CHAPTER II 457
PLEADINGS

COMMENTS
Q: W hat is a co m p lain t?
A: The complaint is the pleading alleging the plaintiffs or
claiming party’s cause or causes of action. The names and
residences of the plaintiff and defendant m ust be stated in
the complaint.

Example:
B borrowed from A the amount of P400,000.00 which
he promised to pay on or before December 25, 2016. B failed
to pay the said loaned amount on December 25, 2016, and
despite demand from A, he failed to pay the same. A filed a
complaint for sum of money before the Regional Trial Court
of Manila.

Illustration No. 1:
A------------------ -vs.--------------------B
(Creditor) (Original complaint) (Debtor)

4. Answer Defined:

Sec. 4 , Rule 6 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) defines
answer. It states that:
"Sec. 4. Answer. — An answer is a pleading in
which a defending party sets forth his or her defenses.
(4a)”

COMMENTS
Q: W hat is an answ er?
A: An answer is a pleading in which a defending party sets
forth his or her defenses.
458 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

5. K inds o f Defenses:

Sec. 5, Rule 6 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the kinds of defenses. It states that:
“Sec. 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 or causes of
action.
(b) An affirmative defense is an allegation of a
new m atter 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 m atter 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,
th at there is another action pending between the
same parties for the same cause, or th at the action is
barred by a prior judgment. (5a)”

COMMENTS:
Q: W hat are th e k in d s o f d efen ses?
A: As provided by the above-cited rule, defenses may either
be negative or affirmative.

Q: W hat is a negative defense?

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 or causes of action:
 CHAPTER II 459
PLEADINGS

Q: W hat is an affirm ative defense?

A: 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.

Q: W hat are th e affirm ative defenses u n d er th e ru les?

A: The affirmative defenses include the following, to wit:
1) Fraud;
2) Statute of limitations;
3) Release;
4) Payment;
5) Illegality;
6) Statute of frauds;
7) Estoppel;
8) Former recovery;
9) Discharge in bankruptcy; and
10) Any other matter by way of confession and
avoidance.
Q: W hat are th e o th e r affirm ative defenses w hich can be
grounds for th e dism issal o f th e co m p laint?
A: 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 (litis pendentia), or
3) That the action is barred by a prior judgment.
460 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6. C ounterclaim Defined (Bar E xam ination 2010)

Sec. 6, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) defines
counterclaim. It states that:
"See. 6. Counterclaim. — A counterclaim is any
claim which a defending party may have against an
opposing party.” (6)

COMMENTS:
Q: W hat is a co u n terclaim ?
A: A counterclaim is any claim which a defending party
may have against an opposing party.

Q: W hat is th e n a tu re o f co u n terclaim ?
A: A counterclaim is considered a new suit in which the
defendant is the plaintiff and the plaintiff in the complaint
becomes the defendant.

Case Law:
A counterclaim is considered a new suit in which the
defendant is the plaintiff and the plaintiff in the complaint
becomes the defendant. It stands on the same footing and is
to be tested by the same rules as if it were an independent
action. (Engr. Gabriel vs. Leyson, et al. vs. Naciansino
Bontuyan, et al., G.R. No. 156357, February 18, 2005, citing
Pro Line Sports Center, Inc. vs. Court of Appeals, 281 SCRA
162 [1997])

Q: W hat are th e kinds o f co u n terclaim ?

A: Counterclaim may be classified into a compulsory and
permissive:
a) Compulsory counterclaim or otherwise known as
the principle of recoupment — is one which arises out of or
is necessarily connected with the transaction or occurrence
 CHAPTER II 461
PLEADINGS

that is the subject matter of the opposing party’s claim. If it is

within the jurisdiction of a regular court of justice and it does
not require for its adjudication the presence of third parties
over whom the court cannot acquire jurisdiction, it is barred
if not set up in the action. (see Sec. 2, Rule 9) This is also
known as a “recoupment.” (Lopez vs. Gloria, 40 Phil. 26)
b) Permissive counterclaim or otherwise known as the
principle of set-off— is a claim does not arise out of nor is it
necessarily connected with the subject matter of the opposing
party’s claim. It is not barred even if not set up in the action.
This is also known as a “set-off.” (Lopez vs. Gloria, supra)

Q: How to d eterm in e n a tu re o f co u n terclaim ?

A: To determine whether a counterclaim is compulsory or
not, the Court has devised the following tests: (a) Are the issues
of fact and law raised by the claim and by the counterclaim
largely the same? (b) Would res judicata bar a subsequent suit
on defendant’s claims, absent the compulsory counterclaim
rule? (c) Will substantially the same evidence support or refute
plaintiffs claim as well as the defendant’s counterclaim? and
(d) Is there any logical relation between the claim and the
counterclaim? A positive answer to all four questions would
indicate that the counterclaim is compulsory. (Government
Service Insurance System [GSIS] vs. Heirs of Fernando P.
Caballero, et al., G.R. No. 158090, October 4, 2010)

Q: W hat is th e "Com pelling te s t o f com pulsoriness” in

determ in in g co u n terclaim ?
A: Where conducting separate trials of the respective claims
of the parties would entail a substantial duplication of effort
and time by the parties and the court.

Case Law:

Another test is the “compelling test of compulsoriness ”

which requires a logical relationship between the claim and
counterclaim, that is, where conducting separate trials of the
respective claims of the parties would entail a substantial
duplication of effort and time by the parties and the court.
462 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(Quintanilla vs. CA, G.R. No. 101747, September 24, 1997,

279 SCRA 397)

7. C om pulsory C ounterclaim Defined:

Sec. 7, Rule 6 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) defines
compulsory counterclaim. It states that:
"Sec. 7. Compulsory counterclaim . — A
compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out
of or is connected with the transaction or occurrence
constituting the subject m atter 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. (7a)n

COMMENTS:

a) Com pulsory C ounterclaim :

Q: W hat is a com pulsory co u n terclaim ?

A: Acompulsoiy counterclaim is one which .being cognizable
by the regular courts of justice, arises out of or is 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.

Case Law:
A counterclaim is any claim which a defending party may
have against an opposing party. A compulsory counterclaim
 CHAPTER II 463
PLEADINGS

is one which, being cognizable by the regular courts of justice,

arises out of or is 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 m ust 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, necessarily
connected with the subject matter of the opposing party’s
claim or even where there is such a connection, the Court
has no jurisdiction to entertain the claim or it requires for
adjudication the presence of third persons over whom the
court acquire jurisdiction. A compulsory counterclaim is
barred if not set up in the same action. (Arturo C. Alba, Jr.
vs. Raymund D. Malapajo, Ramil D. Malapajo and the Register
o f Deeds for the City ofRoxas, G.R. No. 198752, January 13,
2016, J. Peralta)
Q: W hat is th e req u irem en t in o rder th a t counterclaim
shall be allow ed? E xception?
A: Such a counterclaim m ust 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.
Example:
In illustration No. 1, if B has a claim against A which
arises out of the same transaction or series of transaction or
occurrence which is the subject matter of the claim of A, then
he may raise it in his Answer as a compulsory counterclaim.

Illustration No. 2:
Com pulsory C ounterclaim

A------------------- vs.------------------- B
(Creditor) (Original complaint) (Debtor) ^
464 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Will th e filing o f unfounded civil actio n a ground for

th e aw ard of m oral dam ages an d a tto rn e y ’s fees by way of
cou n terclaim ?
A: No, the filing an unfounded civil action should not be a
ground for an award of moral damages by way of counterclaim.

[[^CaseLaw: ||

Finally, we hold that the trial court correctly dismissed

petitioner’s counterclaim for moral damages and attorney’s
fees. The filing alone of a civil action should not be a ground
for an award of moral damages in the same way that a clearly
unfounded civil action is not among the grounds for moral
damages. (Filipino Lepanto-Taisho Insurance Corporation
now known as FLT Prime Insurance Corporation, Chevron
Philippines Inc. formerly known as Caltex [Philippines] Inc.,
G.R. No. 177839, January 18, 2012)

Q: Are p ay m en t o f d o ck et fees in com pulsory

coun terclaim an d cross-claim required?
A: Payment of docket fee in compulsory and cross-claim
are suspended as per resolution of the Supreme Court dated
September 21, 2004.

On July 17, 1998, at the time PGSMC filed its Answer

incorporating its counterclaims against KOGIES, it was not
liable to pay filing fees for said counterclaims being compulsory
in nature. We stress, however, that effective August 16, 2004
under Sec. 7, 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-claims. (Korea Technologies Co., Ltd.
vs. Hon Alberto Lerma, G.R. No. 143581, January 7, 2008)
[Suspended as per resolution of the Supreme Court dated
September 21, 2004]
Q: W hat is th e effect if th e com pulsory co u n terclaim is
n o t raised in th e a c tio n ? E xception?
 CHAPTER II 465
PLEADINGS

A: A compulsory counterclaim not raised in the same action

is barred, unless otherwise allowed by these Rules.

Case Law:

Under the Rules, a compulsory counterclaim, or 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. vs. Glodel Brokerage Corporation and R&B
Insurance Corporation, G.R. No. 179446, January 9, 2011)

b) P erm issive C ounterclaim :

Q: W hat is a perm issive co u n terclaim ?

A: A perm issive co u n terclaim is a pleading asserting
a claim which, being cognizable by the regular courts of
justice, which does not arise out of or is not connected with
the transaction or occurrence constituting the subject matter
of the opposing party’s claim and require for its adjudication
the presence of third parties of whom the court can acquire
jurisdiction.

Case Law:

A counterclaim is permissive if it does not arise out of

or is not necessarily connected with the subject matter of
the opposing party’s claim. It is essentially an independent
claim that may be filed separately in another case. (Arturo C.
Alba, Jr. vs. Raymund D. Malapajo, Ramil D. Malapajo and
The Register of Deeds for the City o f Roxas, G.R. No. 198752,
January 13, 2016, J. Peralta)

Example:
In illustration No. 1, if B has a claim against A which
does not arise out of the same transaction or series of
transaction or occurrence which is the subject matter of the
claim of A, then he may raise it in his Answer as a permissive
counterclaim.
466 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Illustration No. 3:
(Permissive Counterclaim)

A------------------v».------------------ B
(Creditor) (Original complaint) (Debtor)

Q: W hat are th e te s ts to determ ine w hether a

counterclaim is com pulsory or perm issive?
A: To determine whether a counterclaim is compulsory
or permissive, we have devised the following tests: (a) Are
the issues of fact and law raised by the claim and by the
counterclaim largely the same? (b) Would res judicata
bar a subsequent suit on defendants’ claims, absent the
compulsory counterclaim rule? (c) Will substantially the
same evidence support or refute plaintiffs’claim as well as the
defendants’counterclaim? and (d) Is there any logical relation
between the claim and the counterclaim? A positive answer
to all four questions would indicate that the counterclaim is
compulsory. (Arturo C. Alba, Jr. vs. Raymund D. Malapajo,
Ramil D. Malapajo and The Register of Deeds for the City of
Roxas, G.R. No. 198752, January 13, 2016, J. Peralta)
Q: Are docket fees required in perm issive counterclaim ?
(Bar Exam ination 2019)
A: The rule in permissive counterclaim is that for the trial
court to acquire jurisdiction, the counter-claimant is bound
to pay the prescribed docket fees.

Case Law:

The rule in permissive counterclaim is that for the trial

court to acquire jurisdiction, the counterclaimant is bound
to pay the prescribed docket fees. Any decision rendered
without jurisdiction is a total nullity and may be struck down
at any time, even on appeal before this Court. In this case,
respondent did not dispute the non-payment of docket fees.
Respondent only insisted that its claims were all compulsory
 CHAPTER II 467
PLEADINGS

c o u n te rc la im s . A s s u c h , th e ju d g m e n t by th e tria l c o u rt in
re la tio n to th e s e c o n d c o u n te rc la im is c o n s id e re d n u ll a n d
void w ith o u t p re ju d ic e to a s e p a r a te a c tio n w h ic h r e s p o n d e n t
m a y file a g a in s t p e titio n e r. (Manuel C. Bungcayao, Sr. vs. Fort
Hocandia Property Holdings and Development Corporation,
G.R. No. 170483, April 19, 2010)

Q: D istinguish C om pulsory C ounterclaim (Principle of

R ecoupm ent) an d Perm issive C ounterclaim (Principle of
S et off)?

Com pulsory Counterclaim Perm issive Counterclaim

a) A compulsory counterclaim a) A permissive counterclaim
arises out of or is connect­ does not arise out of and
ed with the transaction or is not connected with the
occurrence constituting the transaction or occurrence
subject matter of the op­ constituting the subject
posing party’s claim; matter of the opposing
party’s claim;
b) A compulsory counterclaim b) A permissive counterclaim
is barred if not set up in the is not barred even if not set
answer (or in the amended up in the answer;
answer)
c) Plaintiff need not answer a c) Plaintiff must answer a
compulsory counterclaim, permissive counterclaim;
except in summary
proceeding);
d) If plaintiff does not answer d) Plaintiffwho does not answer
a compulsory counterclaim, a permissive counterclaim
he cannot be declared in may be declared in default
default; in respect thereto;
e) A compulsory counterclaim e) A permissive counterclaim,
does not require a being an initiatory pleading,
certification on non-forum requires a certification on
shopping; non-forum shopping;
468 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

f) Compulsory counterclaim f) If it is a permissive counter­

is not an initiatory pleading, claim, the lack of a certifi­
and thus need not require cate of non-forum shopping
a certificate of non-forum is fatal. (Estherlita Cruz-
shopping. Agana vs. Hon. Santiago
Lagman, G.R. No. 139018,
April 11, 2005)

Q: W hat is th e rem edy in case of ju d g m en t on

counterclaim , cross-claim o f th ird -p arty com plaint while
th e m ain case is pending?
A: T he ju d g m e n t is n o t a p p e a la b le u n d e r Sec. 1, R u le 4 1 ,
a n d th e re fo re P e titio n for certiorari is a v a ilab le , u n le s s th e
c o u rt will allow a p p e a l.

Procedural Basis:

Sec. 1, Rule 41 o f th e 1997 Rules of Civil Procedure

p ro v id e s for th e ru le o n w h e n a n a p p e a l c a n b e ta k e n a n d th e
o rd e rs o r ju d g m e n ts w h ic h a re n o t a p p e a la b le . It s ta te s th a t:

“Sec. 1. Subject o f a p p e a l — An appeal may be

taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal m ay be taken from:
“6) A judgm ent or final order for or against
one or m ore o f several parties or in separate
claim s, counterclaim s, cross-claim s and third-party
com plaints, while th e m ain case is pending, u n less
th e court allow s an appeal therefrom; and
XXX.

In any o f th e foregoing circum stances, th e

aggrieved party m ay file an appropriate special civil
action as provided in Rule 6 5 .”
 CHAPTER II 469
PLEADINGS

Q: Are co u n terclaim , cross-claim and th ird -p arty com ­

p lain t available in an a ctio n for in terp lead er?
A: Yes, by express provision of Sec. 5, Rule 62, parties in
an interpleader action may file counterclaims, cross-claims,
third-party complaints and responsive pleadings thereto.

P rocedural Basis:

Sec. 5, Rule 62 o f th e Rules provides for the remedies

of counterclaim, cross-claims, and third-party complaint
which may be availed of in an action for interpleader. It states
that:
“Sec. 5. A nsw er a n d oth er p leadin gs. —
The parties in an interpleader action m ay file
counterclaim s, cross-claim s, third-party com plaints
and responsive pleadings th ereto, as provided by
th e se Rules."

Q: Is a co u n terclaim allowed in case of SLAPP?

A: Yes, by express provision of Sec. 3, Rule 6 of the Rules
of Procedure in Environmental Case that the court award by
way of counterclaim, damages, attorney’s fees and cost of
suit.

|| ProceduralB asis:

Sec. 2, Rule 6 o f Rules o f P rocedure on E nvironm ental

Cases (A.M. No. 09-6-8-SC) provides for the rule on SLAPP
as a defense. It states that:
“Sec. 2. SLAPP a s a defense; how alleged. —
In a SLAPP filed against a person involved in th e
enforcem en t o f environm ental laws, p rotection o f
th e environm ent, or assertion o f environm ental
rights, th e defendant m ay file an answer interposing
as a defense that th e case is a SLAPP and shall be
supported by docum ents, affidavits, papers, and
oth er evid en ce, and by w a y o f counterclaim , p r a y fo r
dam ages, a tto rn ey’s fe e s an d co st o f suit. ”
470 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Are counterclaim , cross-claim and third-party

com plaint allowed in an actio n for expropriation?
A: No, by express provision of Sec. 3, Rule 67 that, no
counterclaim, cross-claim or third-party complaint shall be
alleged or allowed in the answer or any subsequent pleading

Procedural Basis:
Sec. 3, Rule 67 of th e 1997 Rules of Civil Procedure
provides for the rule on the right of the plaintiff to enter the
property upon deposit of the value. It states that:
“Sec. 3. Defenses an d objections, x x x.
If a defendant has any objection to the filing o f
or th e allegations in th e com plaint, or any objection
or defense to the taking o f his property, he shall serve
his answer within the tim e stated in th e sum m ons.
The answer shall specifically designate or identify
th e property in which he claim s to have an interest,
state the nature and exten t o f th e interest claim ed,
and adduce all his objections and defenses to the
taking o f his property. No counterclaim , cross-claim
or third-party com plaint shall be alleged or allowed in
th e answer or any subsequent pleading.”

8. Cross-claim Defined:

Sec. 8, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) defines cross­
claim. It states that:
“Sec. 8. Cross-claim. — A cross-claim is any
claim by one party against a co-party arising out o f the
transaction or occurrence that is th e subject m atter
either o f th e original action or o f a counterclaim
therein. Such cross-claim may cover all or part o f the
original claim . (8a)”

COMMENTS:
Q: W hat is a cross-claim ?
A: A cross-claim is any claim by one party against a co­
party arising out of the transaction or occurrence that is the
 CHAPTER II 471
PLEADINGS

subject matter either of the original action or of a counterclaim

therein. Such cross-claim may cover all or part of the original
claim.

Example:
A filed a case against B & C before the Regional Trial of
Manila for Collection of Sum of Money for non-payment of the
loan they obtained from A. If B has a claim against C which
arises out of the same transaction or occurrence which is the
subject matter of the claim of A or of a counterclaim, then he
may raise the same in his Answer as a cross-claim against C.

Q: C ross-claim d istin g u ish ed from a cou n terclaim ?

A: A cross-claim may be distinguished from counterclaim
in the following:

Cross claim Counterclaim

a) A cross claim is a claim
against a co-defendant in
a suit.
b) A cross-claim arises out
of the tran sactio n or
occurrence th a t is the
subject m atter either of
the original action or the
counterclaim .
a) A counterclaim is a claim
against a n opposing party;
b) While a counterclaim
m ay or m ay not arise out
of the sam e transaction
or occurrence, as in the
case of a perm issive
counterclaim which is in
effect a separate pleading
in itself.
472 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Can a co u n terclaim be asse rte d ag ain st a c o u n te r­

claim an t?
A: Yes, as expressly provided by the rules that, a
counterclaim may be asserted against an original counter­
claimant.
Example:
In Illustration No. 2, if A also has a claim against B in
connection with the counterclaim of B which arises out of the
same transaction or series of transaction which is the subject
matter of the counterclaim of B, then A can raise the same as
a counter-counterclaim.
—

Illustration No. 4:
Com pulsory Counterclaim

A--------------------- vs.--------------------- B
(Creditor) (O riginal com plaint) (Debtor)

C o u n te r C o u n te rc la im

9. C ounter-C ounterclaim s an d Counter-Cross-Claim s:

Sec. 9, Rule 6 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on counter-counterclaims and counter-cross-claim.
It states that:
“Sec. 9. Counter-counterclaim s a n d counter-
cross-claim s. — A counterclaim m ay be asserted
against an original counter-claim ant.
A cross-claim m ay also be filed against an original
cross-claim an t.’* (9)

COMMENTS
Q: Can a co u n terclaim be asserted ag ain st a c o u n te r­
claim an t?
 CHAPTER II 473
PLEADINGS

A: Yes, as expressly provided by the rules that, a

counterclaim may be asserted against an original counter­
claimant.

Q: Can a cross-claim be a sse rte d ag ain st a cro ss­

claim an t?
A: Yes, as expressly mandated by the above- cited rule that,
a cross-claim may also be filed against an original cross­
c la im a n t.

Example:
In illustration No. 4, if C also has a claim against B in
connection with the latter’s cross-claim (B), then he can raise
it in his Answer to the cross-claim as a counter cross-claim.

10. Reply:

Sec. 10, Rule 6 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on filing of a reply. It states that:
HSec. 10. Reply. — All new m atters alleged in
th e answer are deem ed controverted. If th e plain tiff
w ish es to interpose any claim s arising ou t o f th e new
m atters so alleged, su ch claim s shall be s e t forth in
an am ended or supplem ental com plaint. However,
th e p lain tiff m ay file a reply only if th e defending
party a tta ch es an actionable docum ent to h is or her
answer.
A reply is a pleading, th e office or function o f
w hich is to deny, or allege facts in denial or avoidance
o f new m atters alleged in, or relating to , said
actionable docum ent.
474 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

In th e ev e n t o f an actionable docum ent attached

to th e reply, th e defendant m ay file a rejoinder if
th e sam e is based so lely on an actionable docum ent.
(10a)”

COMMENTS:
Q: W hat is th e ru le in case of allegation of new m a tte rs
in th e answ er?
A: Under the above-stated rules, all new matters alleged in
the answer are deemed controverted.
Q: How can th e p lain tiff in terp o se h is claim arising o u t
o f th e new m a tte rs ?
A: If the plaintiff wishes to interpose any claims arising out
of the new matters so alleged, such claims shall be set forth
in an amended or supplemental complaint.
Q: W hen can th e p lain tiff file a reply?
A: The plaintiff may file a reply only if the defending party
attaches an actionable document to his or her answer.
Q: W hat is a reply?
A: 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.
Q: W hen can a rejo in d er be filed?
A: 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.
S ample F orm No. 1. R eply:

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B r a n c h ______
 CHAPTER II 475
PLEADINGS

MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
D efendants,
--------------x
REPLY

COMES NOW, th e plaintiff, through th e undersigned

counsel an d u n to this Honorable Court, m ost avers:
1. That the plaintiff ADMITS the allegations in
paragraphs 1 and 3 of the Answer.
2. That plaintiff specifically deny the allegations in
p aragraphs 2, 4, 5, 6 of the Answer as the tru th of the m atter
is th a t there w as no paym ent m ade by the said defendant as
per adm ission in the letter he executed, and the prom issory
attached to the defendant’s Answer is a forgery since a t the
time it was allegedly executed he was in Singapore having a
b u sin ess m eetings with my clients.
WHEREFORE, plaintiff prays for judgm ent.
1. O rdering the defendant all his m onetary claim s as
stated in his com plaint;
2. Cost of suit.
O ther relief and rem edies a s m ay be deem ed ju s t and
equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, February 20, 2020.

TLLM LAW A ASSOCIATES

LAW OFFICE
Counsel for the Plaintiff
Room 1408 E rm ita Center Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
Erm ita, Manila

FERDINAND A. TAN
IBP Lifetime No. 0 1 4 510 /2-24-16
PTR NO. 8939861/2-26-20/M la.
Roll No. 38488
MCLE Exem ption No. VI 00214 2 /4 -8 -1 9
Tel. No. 247-1757
476 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

CC: YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OF SERVICE
Copy of the Reply w as served to the counsel for the
defendant by registered mail due to tim e constraints and
distance, and for lack of the undersigned’s staff who can
serve the sam e in person.
FERDINAND A. TAN

11. Third, (Fourth, etc.)-P arty Com plaint:

Sec. 11, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provide for
the rules on filing of a third, (fourth, etc.) party complaint. It
states that:
“Sec. 11. Third, (fourth, e tc .fp a r ty com plaint,
— A third (fourth, etc.)-party com plaint is a claim
th at a defending party m ay, w ith leave of court, file
against a person not a party to th e action, called th e
third (fourth, etc.)-party defendant for contribution,
indem nity, subrogation or any other relief, in resp ect
o f his or her opponent's claim .
The third (fourth, etc.)-party com plaint shall
be denied adm ission, and th e court shall require th e
defendant to in stitu te a separate action , where: (a) th e
third (fourth, etc.)-party defendant cannot be located
w ithin th irty (30) calendar days from th e grant o f
su ch leave; (b) m atters extraneous to th e issu e in th e
principal case are raised; or (c) th e effect would be to
introduce a new and separate controversy in to th e
action . (11a)”
 CHAPTER II 477
PLEADINGS

COMMENTS:
Q: W hat is a th ird (fourth, etc.)-party com plaint?
A: A third (fourth, etc.)-party complaint is a claim that a
defending party may, 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.
Example:
In illustration No. 1, if B has a claim against a third
person not a party to the original action in connection with the
claim of A, then he may with leave of court file a third-party
complaint against the said third person C for contribution,
indemnity, subrogation or any other relief, in respect of his
opponent’s claim.

Q: W hat is th e m ain c h a ra c te ristic /p u rp o se of third-

p arty co m p lain t?
A: The crucial characteristic of a claim under Sec. 12 of
Rule 6, is that the original defendant is attempting to transfer
to the third-party defendant the liability asserted against him
by the original plaintiff.

|| Case Law ^Jj

Apart from the requirement that the third-party

complainant should assert a derivative or secondary claim
478 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

for relief from the third-party defendant there are other

limitations on said party’s ability to implead. The rule requires
that the third-party defendant is “not a party to the action”
for otherwise the proper procedure for asserting a claim
against one who is already a party to the suit is by means of
counterclaim or cross-claim under Secs. 6 and 7 of Rule 6. In
addition to the afore-cited requirement, the claim against the
third-party defendant must be based upon plaintiffs claim
against the original defendant (third-party claimant). The
crucial characteristic of a claim under Sec. 12 of Rule 6, is
that the original “defendant is attempting to transfer to the
third-party defendant the liability asserted against him by the
original plaintiff.” (Philtranco Service Enterprises, Inc. vs. Felix
Paras and Inland Trailways, Inc., and Hon. Court of Appeals, G.R.
No. 161909, April 25, 2012)
Q: When can th e co u rt deny a th ird (fourth, etc.)-party?
A: The third (fourth, etc.)-party complaint shall be denied
admission, and the court shall require the defendant to
institute a separate action, where:
1) The third (fourth, etc.)-party defendant cannot be
located within thirty (30) calendar days from the grant of
such leave;
2) Matters extraneous to the issue in the principal
case are raised; or
3) The effect would be to introduce a new and separate
controversy into the action.

S ample F orm Wo . 2 : M otiow F or Leave O r C ourt T o F ile T hirp -

PARTT COMPLAflIT-tSfiC. 1 1 , RULE 6)

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money w ith Dam ages
 CHAPTER II 479
PLEADINGS

MR. Y,
Defendant,
x ------------------------ x

MOTION FOR LEAVE OF COURT TO FILE

THIRD-PARTY COMPLAINT

COMES NOW, th e defendant, through the undersigned

counsel a n d u n to this Honorable Court, m ost respectfully
avers:
1. That defendant h a s been sued for collection of su m of
m oney in the total am ount of P500,000.00, exclusive of cost
and interest, a n d attorney’s fees;
2. That the third party in the p u rch ase of the subject
vehicle from the plaintiff, paym ent for which is the subject
of the said com plaint, acted for a n d in behalf, an d as agent
of the third-party defendant;
3. T hat after the p u rch ase of the said m otor vehicle
aforem entioned, third-party plaintiff imm ediately delivered
the sam e to the third-party defendant who prom ised to pay
the full p u rch ase price to the plaintiff. Copy of the Third-
Party Com plaint is hereto attached a s Annex “A” hereof.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of th is Honorable Court th a t the
defendant be allowed to file third-party complaint.
O ther relief and rem edies as m ay be deem ed ju s t and
equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, February 20, 2020.
YULO AND ASSOCIATES
Counsel for the D efendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 61008 3 /2 -5 -2 0 /M la.
PTR NO. 2 6 4 8 9 2 /2 -2 -2 0 /Mia.
Roll No. 38988
MCLE NO. V 13854-2-2-18
Tel. No. 521-61-28
480 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on February 18, 2016,
a t 8:30 a.m.
HECTOR A. YULO
CC: TAN LIBRANDA ONEZA
AND CEPILLO LAW OFFICES
Room 1408 E rm ita Center Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
Erm ita, Manila

EXPLANATION OF SERVICE
Copy of the Motion for Leave of Court to file Third-Party
Com plaint w as served to Plaintiffs counsel by registered
mail due to tim e constraints and distance, and for lack of
the undersigned’s staff who can serve the sam e in person.
HECTOR A. YULO

S ample F orm No. 3: T hird-P arty Complaiwt

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
Pasig City
B ranch _____

MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant.
x •X
 CHAPTER II 481
PLEADINGS

MR. Y,
Third-Party Plaintiff,
- versus -
MR. S,
Third-Party Defendant.
x ------------------------------------------ x
THIRD-PARTY COMPLAINT
COMBS NOW, th e third-party plaintiff, through
counsel, an d u n to this Honorable Court, m ost respectfully
avers:
1. That third-party plaintiff is of legal age, Filipino
citizen, with postal ad d ress a t #1136-A A. M aceda Street,
Sam paloc, Manila;
2. That third-party defendant is also of legal age,
Filipino citizens, with postal address a t No. 1164 D apitan
Street, Sam paloc, Manila, w here he may be served with
sum m ons and other processes by th is Honorable Court;
3. T hat the third-party in th e pu rch ase of the subject
vehicle from the plaintiff, paym ent for which is the subject
of th e said com plaint, acted for and in behalf, and as agent
of the third-party defendant;
4. T hat after the p u rch ase of the said m otor vehicle
aforem entioned, third-party plaintiff im m ediately delivered
the sam e to the third-party defendant who prom ised to pay
the full p u rch ase price to the plaintiff.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed u n to th is Honorable Court th at, after
hearing, judgm ent be rendered as follows:
1. O rdering the th ird-party defendant to indemnify
the third-party plaintiff for w hatever is adjudged against the
latter in favor of the said original plaintiff.
Such other relief and rem edies as m ay be deem ed ju s t
and equitable u n d e r the prem ises are likewise prayed for.
Manila for Pasig City, February 20, 2020.
YULO AND ASSOCIATES
Counsel for the D efendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
482 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

By:
HECTOR A. YULO
IBP NO. 6 1 0 0 8 3 /2 -5 -2 0 /Mia.
PTR NO. 2 6 4 8 9 2 /2 -2 -2 0 /Mia.
Roll No. 39488
M CLEVNO. 13854-2-2-18
Tel. No. 521-61-28

VERIFICATION / CERTIFICATION OF NON-FORUM

SHOPPING

REPUBLIC OF THE PHILIPPINES)

CITY OF MANILA ) S.S.
I, MR. Y, of legal age, Filipino citizen, m arried, and
resident of #1136-A A. M aceda Street, Sam paloc, Manila,
after having been duly sw orn to in accordance w ith law do
hereby depose an d say:
1. T hat I am the third-party plaintiff in the above-
entitled case;
2. T hat I have caused the preparation of the foregoing
Third-Party Com plaint a n d have read the allegations
contained therein;
3. The allegations in th e said com plaint are tru e and
correct of my own knowledge and au thentic records;
4. The pleading is not filed to h a ra ss, cause u n necessary
delay, or needlessly increase the cost of litigation; and
5. The factual allegations therein have evidentiary
support or, specifically so identified, will likewise have
evidentiary su p p o rt after reasonable opportunity for
discovery.
6. I hereby certify th a t I have not com m enced any
other action or proceeding involving th e sam e issu es in the
Suprem e Court, Court of Appeals, or any other trib u n al or
agency;
7. That if I should thereafter learned th a t a sim ilar
action or proceedings h a s been filed or is pending before
the Suprem e Court, Court of Appeals, or any other tribunal
agency, I hereby un d ertak e to report th a t fact w ithin five (5)
days therefrom to the court or agency w herein the original
 CHAPTER II 483
PLEADINGS

pleading and sworn certification contem plated herein have

been filed;
8. I executed this verification/certification to atte st
to the tru th of the foregoing facts an d to comply with the
provisions of Adm. C ircular No. 04-94 of the Honorable
Suprem e Court.
IN WITNE8S WHEREOF, I have hereunto affixed my
signature this ___ day of February 2020, in the City of
Manila.

MR. Y
SUBSCRIBED AND SWORN to before me th is ____ day of
February 2020, in the City of Manila, affiant exhibiting to me
his SSS I.D. N o ._____________issued a t _________________
o n ______________ .

Doc. N o .____ ;
Page N o .____ ;
Book N o .____ ;
Series of 2020.

c 12. Bringing o f New P arties

3
Sec. 12, Rule 6 o f th e 2019 A m endm ents to th e 1997
Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on bringing of new parties. It states that:
“Sec. 12. Bringing new p a rtie s. — When th e
presence o f parties other th an th o se to th e original
action is required for th e granting o f com p lete relief
in th e determ ination o f a counterclaim or cross­
claim , th e court shall order th em to be brought in as
defendants, if jurisdiction over them can be obtained.
(12)”
COMMENTS:
Q: W hat is th e rule on bringing o f new p a rtie s?
A: When the presence of parties other than those to the
original action is required for the granting of complete relief
484 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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.
Example:
In case no complete relief can be had in the counter-claim
or cross-claim which requires the presence of a third person
over whom the court can acquire jurisdiction, then the court
may allow them to be brought to the case as defendants.

Q: W hat are th e pleadings w hich are n o t allowed in a

p e titio n for W rit o f Amparo and H abeas D ata?
A: The pleadings which are not allowed under the Rules on
the Writ of Amparo and Rules on Habeas Data are as follows,
to wit:
a) Counterclaim;
b) Cross-claim;
c) Third-party complaint;
d) Reply; and
e) Pleadings in intervention. (Sec. 11, The Rule on Writ
of Amparo [A. M. No. 07-9-12]
 CHAPTER II 485
PLEADINGS

Q: Is th ird -p arty co m p lain t allowed u n d er th e Rules on

Sum m ary P rocedure.
A: No, third-party complaint is one of the prohibited
pleadings under the Rules on Summary Procedure.

P rocedural Basis:

S e c . 19(k) o f t h e R u le s o n S u m m a r y P r o c ed u r e
enumerates the prohibited pleadings in cases falling under
summary procedure. It states that:
“Sec. 19. Prohibited p lea d in g s an d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n ot be allowed in th e c a ses covered by th is Rule:
X X X

k) Third-party com plaints;"

Q: Is th ird -p arty co m p lain t allowed u n d er th e 2016

Revised Rules on Sm all Claim s C ases?
A: No, third-party complaint is one of the prohibited
pleadings under the 2016 Revised Rules on Small Claims
Cases.

P rocedural Basis:

Sec. 14(k) o f th e Revised 2016 Rules on Sm all Claim s

cases prohibits the filing of a third-party complaint. It states
that:
“Sec. 14. Prohibited p lea d in g s an d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n ot be allow ed in th e c a ses covered by th is Rule:
k) Third-party com plaints;”

Q: Is th ird -p arty com p lain t allowed u n d er th e Rules on

E nvironm ental C ases?
A: No, third-party complaint is one of the prohibited
pleadings under the Rules on Environmental Cases.
486 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 2(f), Rule 2, P art II o f A.M. No. 09-6-08-SC otherwise

known as the Rules of P rocedure for E nvironm ental Cases
enumerates the prohibited pleadings in environmental cases.
It states that:
uSec. 2. Prohibited p lea d in g s an d motions. —
The following pleadings and m otions shall n o t be
allowed:

f) Third-party com p laint.”

13. Answer to T hird (F ourth, etc

Sec. 13, Rule 6 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the filing of answer to third, [fourth, etc.) party
complaint. It states that:
“Sec. 13. A nsw er to th ird [fourth, etc.j-party
com plaint. — A third (fourth, etc.)- party defendant
m ay allege in h is or her answer h is or her d efen ses,
counterclaim s or cross-claim s, including such
d efen ses th at th e third (fourth, etc.)-party plaint iff
m ay have against th e original plaintiff's claim . In
proper cases, he or sh e m ay also assert a counterclaim
against th e original plain tiff in resp ect o f th e latter’s
claim against th e third-party plaintiff. (13a)”

COMMENTS:
Q: W hat m ay be alleged by th e th ird - p arty d efendant?
A: A third (fourth, etc.)-party defendant may allege in his or
her answer, the following, to wit:
1) His or her defenses;
2) Counterclaims or cross-claims;
3) Including such defenses that the third (fourth, etc.)-
party plaintiff may have against the original plaintiff’s claim.
 CHAPTER II 487
PLEADINGS

4) In proper cases, he or she may also assert a

counterclaim against the original plaintiff in respect of the
latter’s claim against the third-party plaintiff.

14. O th er Pleadings u n d er th e Rules:

Q: W hat is a C om plaint-in-Intervention?
A: A co m p lain t-in -in terv en tio n is a pleading filed before
the court with leave of court by a person who has a legal
interest in the matter in litigation, or against either or all
of the original parties, 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.

Example:
In illustration No. 7, if C on the other hand is a third
person not a party to the original action has a legal interest
in the matter in litigation, or against either or all of the of the
original parties, 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 of
court intervene in the action.

Illustration No. 9:
*Legal interest over the:
- Subject m atter of the
litigation;
- Success of the plaintiff or
defendant or both; or
- Situated as to be adversely
affected by the distribution
or other disposition of
property in the custody of
the court or of a n officer.
V.
488 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

b) C om plaint for Interpleader:

Q: W hat is In terp lead er?

A: The actio n o f in terp lea d er is a remedy whereby a person
who has property whether personal or real, in his possession,
or an obligation to render wholly or partially, without claiming
any right in both, or claims an interest which in whole or
in part is not disputed by the conflicting claimants, comes
to court and asks that the persons who claim the property
or who consider themselves entitled to demand compliance
with the obligation, be required to litigate among themselves,
in order to determine finally who is entitled to the property
or payment of the obligation. The remedy is afforded not to
protect a person against a double liability but to protect him
against a double vexation in respect of one liability. (Alvarez
vs. Commonwealth o f the Philippines, et al., 65 Phil. 302, 311,
citing C.J., Section 21, p. 438; Beltran vs. PHHC, G.R. No.
L-25138, August 28, 1969, 29 SCRA 145, 151)

Example:
A who is a tenant of a certain residential apartment
paying a monthly rental of P10,000.00. B and C separately are
trying to claim the rental from A. A may file a claim against B
and C before the court for them to interplead and litigate their
claim over the rental of the residential apartment.

Q: W hat are th e pleadings allowed u n d er th e 2016

Revised Rules on Sm all Claim s?
A: The pleadings that may be filed under the Rules on Small
Claims (A.M. No. 08-8-7-SC, October 27, 2009, as amended)
are as follows:
 CHAPTER II 489
PLEADINGS

1) Statement of Claim (Form 1-SCC- Sec. 5);

2) Response (Sec. 11);
3) Permissive counterclaim (Sec. 13);
4) Compulsory counterclaim (Sec. 13).

Q: Are form al pleadings req u ired in Sm all Claim s C ases?

A: There are no lawyers, no formal pleadings, and no strict
legal rules of evidence.

Case Law: I

The small claims process is designed to function quickly

and informally. There are no lawyers, no formal pleadings,
and no strict legal rules of evidence, x x x Thus, the intention
of the law is clear when it provided a period of five (5) days
from receipt of the order of re-assignment to hear and decide
cases, if a motion for re-assignment of a case has been granted
by the Executive Judge. (Ernesto Z. Orbe vs. Judge Manolito
Gumarang, A.M. No. MTJ-11-1792, September 26, 2011)

Q: W hat are th e pleadings w hich are allowed u n d er th e

Rules o f Procedure for E n v iro n m en tal C ases.?
A: The pleadings and motion that may be filed are complaint,
answer which may include compulsory counterclaim.

P rocedural Basis:

Sec. 1, Rule 2, P art II o f A.M. No. 09-6-08-SC otherwise

known as the Rules o f P rocedure for E nvironm ental Cases
enumerates the pleadings and motions which can be filed in
environmental cases. It states that:
“Sec. 1. Pleadings a n d m otions allow ed. — The
pleadings and m otion th a t m ay be filed are com plaint,
answer w hich m ay include com pulsory counterclaim ,
m otion for in tervention, m otion for discovery and
m otion for reconsideration o f a judgm ent.
490 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

M otion for p ostponem ent, m otion for new trial

and p etitio n s for relief from judgm ent shall be allowed
in highly m eritorious c a ses to prevent a m anifest
m iscarriage o f ju stic e .”

c) Pleadings Allowed u n d er O th er Rules of Procedure:

Q: W hat are th e pleadings w hich are allowed u n d er th e

Rules on Sum m ary proceeding?
A: The pleadings which are allowed under the Rules
on Summary Procedure are complaints, compulsory
counterclaim, cross-claims pleaded In the answer and the
answers thereto.

P rocedural Basis:

Sec. 3 o f th e Rules on Sum m ary Procedure enumerates

the pleadings that may be filed before the court under the
rules. It states that:
“S ec. 3. Pleadings. —
A. Pleadings, allowed. — The only pleadings
allowed to be filed are th e com plaints, com pulsory
counterclaim s and cross-claim s pleaded in th e answer,
and th e answers th ereto .”

d) Prohibited pleadings u n d er o th e r Rules of

Procedure:

Q: W hat are th e pro h ib ited pleadings u n d er th e Rules on

Sum m ary P rocedure?
A: The pleadings which are allowed under the Rules
on Summary Procedure are complaints, compulsory
counterclaim, cross-claims pleaded in the answer and the
answers thereto.
 CHAPTER II 491
PLEADINGS

P rocedural Basis:

MSec. 13. Prohibited p lea d in g s an d motions. —

The following p etition s, m otion s, or pleadings shall
n ot be allowed:
xx ax
7. P etition for certiorari, m andam us, or
prohibition against any interlocu tory order issu ed by
th e court;
10. Reply;
11. Third-party com plaints;
12. In terven tion s.”

Q: W hat are th e pro h ib ited pleadings u n d er th e 2016

Revised Rules on Sm all Claim s C ases?
A: The pleadings which are prohibited under the 2016
Revised Rules on Small Claims Cases are petition for certiorari,
mandamus, or prohibition against any interlocutory order
issued by the court, Reply, third-party complaints; and
Interventions.

P rocedural Basis:

Sec. 14 o f th e R ules on Sm all Claim s Cases, as

am ended, enumerates the pleadings which are not allowed
to be filed in court. It states that:
“S ec. 14. Prohibited p lea d in g s an d motions. —
The following pleadings, m otion s, or p etitio n s shall
not be allow ed in th e c a ses covered by th is Rule:
XXX

g) P etition for certiorari, m andam us, or pro­

hibition against any interlocutory order issu ed by th e
court;
J) Reply;
k) Third-party com plaints; and
l) In terven tion s.”
492 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e p rohibited pleadings u n d er th e Rules on

W rit of Amparo an d Habeas D ata?
A: The pleadings which are not allowed under the Rules on
the Writ of Amparo and Rules on Habeas Data are as follows,
to wit:
1) Counterclaim;
2) Cross-claim;
3) Third-party complaint;
4) Reply; and
5) Pleadings in intervention.

Q: W hat are th e p rohibited pleadings u n d er th e Rules of

P rocedure for E nvironm ental C ases?
A: The pleadings which are prohibited under the Rules of
Procedure for Environmental Cases are reply, rejoinder and
third-party complaint.

P rocedural Basis:

Sec. 2, Rule 2, P art II o f A.M. No. 09-6-08-SC otherwise

known as the Rules o f Procedure for E nvironm ental
Cases enumerates the prohibited pleadings and motions in
environmental cases. It states that:
“Sec. 2. Prohibited p lea d in g s an d motions. —
The following pleadings and m otions shall n ot be
allowed:
xxx
e) Reply and rejoinder;
f) Third-party com p laint.”
 CHAPTER III

RULE 7: PARTS AND CONTENTS

OF A PLEADING

1. Caption:

Sec. 1, Rule 7 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) p ro v id es for
th e ru le on th e c o n te n ts of th e c a p tio n in th e plead in g . It
s ta te s th a t:
uSec. 1. Caption. — The caption seta forth the
nam e o f th e court, th e title o f th e action, and the
docket number if assigned.
The title o f the action indicates the nam es of
th e parties. They shall all be named in th e original
com plaint or petition; but in subsequent pleadings,
it shall be sufficient if th e nam e o f th e 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)”

COMMENTS
Q: W hat are th e co n ten ts of th e caption of th e pleading?
A: T he c a p tio n s e ts fo rth th e
1) N am e o f th e c o u rt;
2) T he title of th e a c tio n ; a n d
3) T he d o c k e t n u m b e r if a ssig n e d .

493
494 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e co n te n t of th e title o f th e pleading?

A: The title of the action indicates the names of the parties.

Q: How will th e p arties be nam ed in th e pleading?

A: As mandated by the above-cited rule, parties shall be
named in the pleading as follows, to wit:
1) They shall all be named in the original complaint or
petition;
2) 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.
3) Their respective participation in the case shall be
indicated.

S ample F orm No. 1: Caption Op T he P leading

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
METROPOLITAN TRIAL COURT
Pasig City
B ranch _

MR. X,
Plaintiff,

-versus- CIVIL CASE NO.

For: Ejectment
MR. Y,
Defendant,

2. The Body:

Sec. 2, Rule 7 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on the contents of the body of the pleading. It states
that:
 CHAPTER III 495
RULE 7: PARTS AND CONTENTS OF A PLEADING

“8ec. 2. The body. — The body o f the pleading

s e ts forth its designation, th e allegations o f the
party’s claim s or defenses, the relief prayed for, and
th e date o f th e pleading.
(a) Paragraphs.— The allegations in th e body o f a
pleading shall be divided into paragraphs so numbered
as to be readily identified, each o f which shall contain
a statem en t o f a single set o f circum stances 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 o f
action are joined, th e statem en t o f the first shall be
prefaced by th e words “first cause o f action ,” o f the
second by “second cause o f action ,” and so on for the
others.
When one or more paragraphs in th e answer
are addressed to one o f several causes o f action in
th e com plaint, th ey shall be prefaced by th e words
“answer to th e first cause o f action” or “answer to
th e second cause of action” and so on; and when one
or more paragraphs o f th e answer are addressed to
several cau ses of action, th ey shall be prefaced by
words to that effect.
(c) Relief. — The pleading shall specify the
relief sought, but it m ay add a general prayer for
such further or other relief as m ay be deem ed ju st or
equitable.
(d) Date. — Every pleading shall be dated. (4)”

COMMENTS
Q: W hat are th e m atters con tain ed in th e body of th e
pleading?
A: The body of the pleading sets forth the following:
1) Its designation;
2) The allegations of the party’s claims or defenses;
3) The relief prayed for; and
4) The date of the pleading.
496 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: How will th e allegations in th e body of th e pleading

be asserted ?
A: The allegations in the body of a pleading shall be made
in the following manner:
1) It shall be divided into paragraphs so numbered as
to be readily identified;
2) Each of which shall contain a statement of a
single set of circumstances so far as that can be done with
convenience;
3) A paragraph may be referred to by its number in all
succeeding pleadings.

Q: Can th e co u rt provide p u n ishm ent for failure to

num ber th e paragraphs in th e pleading?
A: No. Section 2, Rule 7 of the Rules of Court does not provide
for any punishment for failure to number the paragraphs in
a pleading since it is not provided by the rules.

Case

Section 2, Rule 7 of the Rules of Court does not provide

for any punishment for failure to number the paragraphs in
a pleading. In short, the perceived procedural irregularities
in the petition for review on certiorari do not justify its
outright dismissal. Procedural rules are in place to facilitate
the adjudication of cases and avoid delay in the resolution
of rival claims. In addition, courts must strive to resolve
cases on their merits, rather than summarily dismiss them
on technicalities. This is especially true when the alleged
procedural rules violated do not provide any sanction at all or
when the transgression thereof does not result in a dismissal
of the action. (Commissioner of Internal Revenue vs. La Flor
Dela Isabela, Inc., G.R. No. 211289, January 14, 2019)

Q: W hat d e te r m in e s n a tu r e o f t h e a c tio n ?
A: The allegations in the complaint not the caption
determines the nature of the case.
 CHAPTER III 497
RULE 7: PARTS AND CONTENTS OF A PLEADING

Case Law:

It is not the caption of the pleading but the allegations

therein that determine the nature of the action, and the
court should grant relief warranted by the allegations and
the proof even if no such relief is prayed for. Thus, the fact
that the complaint was categorized by the plaintiff to be one
for reformation of the instrument should not preclude the
court from passing upon the real issue of whether or not the
transaction as the said issue had been squarely raised in
the complaint and had been the subject of arguments and
evidence of the parties. (Lorbes vs. Court of Appeals, G.R. No.
139884, February 15, 2000)
Q: How will th e headings o f th e pleadings be m ade?
A: Headings in the pleadings shall be made as follows, to
wit:
1) 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.
2) 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
Q: How will th e relief in th e pleading be stated ?
A: 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.
Q: Can th e co u rt gran t relief n o t prayed for in th e
pleading?
A: No. Courts cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the party.
498 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

It is settled that courts cannot grant a relief not prayed

for in the pleadings or in excess of what is being sought by the
party. They cannot also grant a relief without first ascertaining
the evidence presented in court. In Development Bank of the
Philippines vs. Tecson, this Court expounded that:
D u e p ro c e s s c o n s id e ra tio n s ju s tify th is re q u ire m e n t, it is
improper to enter an order which exceeds the scope of relief
sought by the pleadings, absent notice, which affords the
opposing party an opportunity to be heard with respect to the
proposed relief. The fundamental purpose of the requirement
that allegations of the complaint must provide the measure
of recovery is to prevent surprise to the defendant. (Leticia
Diona, represented by her Attomey-in-Fact, Marcelina Diona
vs. Romeo Balangue, Sonny Balangue, Reynaldo Balangue,
and Esteban Balangue, Jr., G.R. No. 173559, January 7, 2013)
Q: When m ay a general prayer, "o th er reliefs ju a t and
equitable” be granted by th e co u rt?
A: A general prayer enables the court to award reliefs
supported by the complaint or other pleadings even if these
reliefs are not specifically prayed for in the complaint.

Case Law:

A general prayer for “other reliefs just and equitable”

appearing in a complaint or pleading normally enables
the court to award reliefs supported by the complaint or
other pleadings, by the facts admitted at the trial, and by
the evidence adduced by the parties, even if these reliefs
are not specifically prayed for in the complaint. (Philippine
Charter Insurance Corp. vs. Philippine National Construction
Corporation, G.R. No. 185066, October 2, 2009)

Q: Is it required th a t every pleading be d ated?

A: Yes, as expressly mandated by the above rule that, every
pleading shall be dated.
 CHAPTER III 499
RULE 7: PARTS AND CONTENTS OF A PLEADING

Sample F orm Wo. 2; Body of the Complaint/ P leadihq

COMPLAINT

COMES NOW, the plaintiff, and unto this Honorable

Court, most respectfully avers:
1. That plaintiff is of legal age, Filipino citizen, with
postal address at #1136-A A. Maceda Street, Sampaloc,
Manila;
2. That defendant Y, of legal age, Filipino citizen, with
postal address at No. 205 Rafael Compound, Paseo de
Animales, Santolan, Pasig City, where they may be served
with sum m ons and other processes by this Honorable
Court;
3. That the subject lot/prem ises was originally owned
by A, B, C, and D as evidenced by their Transfer Certificate
o f Title Nos. PT-116888 and PT-116887 under their
nam es. Copy of Transfer Certificate o f Title Nos. PT-
116888 and 116887 are hereto attached as Annexes “A”
and “B" hereof;
4. That the defendant has been occupying the said
prem ises at No. 2 0 0 Rafael Compound Paseo De Animales,
Santolan, Pasig City for more th an ten (10) years by mere
tolerance of the original registered owners;
5. That on M arch_,2 0 1 1 , one of the registered owner,
D, sold his one-third (1/3) share over the said parcel of land
to the plaintiff, as evidenced by the Deed of Absolute Sale
which is hereto attached as Annex “C” hereof;
6. That as the new owner, plaintiff sent a dem and
letter to the defendants dem anding from the latter to vacate
the prem ises and to pay a reasonable com pensation for the
use of the said prem ises in the am ount of PIO.OOO.OO per
m onth. Copy of the dem and letter personally served to the
defendants is hereto attached as Annex “D” hereof;
7. That despite repeated dem ands orally and in writing,
defendants refused and continuously failing to vacate
the said prem ises and pay the am ount of PIO.OOO.OO as
com pensation for the reasonable use of the subject prem ises
to the damage and prejudice of herein plaintiff;
500 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8. That as a result of the unw arranted and unjustifiable

refusal of the defendants to vacate the aforesaid prem ises/
parcel of land and to pay reasonable com pensation for the
use of the same, plaintiff suffered sleepless nights, serious
anxiety in which he should be awarded the am ount of
PIOO.OOO.OO as moral dam ages, and to set an example to
the public plaintiff should be awarded exemplary damages
in the am ount of PIOO.OOO.OO.
WHEREFORE, prem ises considered, it is most
respectfully prayed unto this Honorable Court that, after
hearing, judgm ent be rendered as follows:
1. Ordering the defendants, and all persons claiming
right under them to vacate the subject prem ises/portion of
the lot;
2. Ordering the defendants to pay the am ount of
P I0,000.00 per m onth as com pensation for the reasonable
use of the subject portion of the lot/prem ises until they
finally vacate the said lot/prem ises;
3. Ordering the defendants to pay the plaintiff the
am ount of PIOO.OOO.OO as moral damages, and PIOO.OOO.OO
as exemplary damages;
4. Ordering the defendants to pay the cost of suit.
Such other relief as may be deemed ju st and equitable
under the prem ises are likewise prayed for
Manila for Pasig City, M arch__ , 2020.

3. Signature and Address:

Sec. 3, Rule 7 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on signature and address in the pleading. It states
that:
"Sec. 3. Signature and address. — Every pleading
m ust be signed by th e party or counsel representing
him , stating in either case his address which should
not be a post office box.
 CHAPTER III 501
RULE 7: PARTS AND CONTENTS OF A PLEADING

(a) The signature o f counsel co n stitu tes a

certificate by him or her that he or she has read the
pleading and docum ent; that to the best o f h is or her
knowledge, inform ation, and belief, formed after an
inquiry reasonable under the circum stances:
(1) It is not being presented for any
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the
co st of litigation;
(2) The claim s, defenses, and other legal
conten tions are warranted by existing law or
jurisprudence, or by a non-frivolous argument
for extending, m odifying, or reversing existing
jurisprudence;
(3) The factual con ten tions have
evidentiary support or, if specifically so
identified, will likely have evidentiary support
after availm ent o f the m odes o f discovery under
th ese rules; and 4
(4) The denials o f factual con ten tion s are
warranted on th e evidence or, if specifically so
identified, are reasonably based on b elief or a
lack of inform ation.
(b) If th e court determ ines, on m otion or motu
proprio and after n otice and hearing, that th is rule
has been violated, it m ay im pose an appropriate
sanction or refer such violation to the proper office
for disciplinary action, on any attorney, law firm, or
party that violated th e rule, or is responsible for the
violation. Absent exceptional circum stances, a law firm
shall be held jointly and severally liable for a violation
com m itted by its partner, associate, or em ployee.
The sanction may include, but shall not be lim ited
to, non-m onetary directive or sanction; an order to
pay a penalty in court; or, if im posed on m otion and
warranted for effective deterrence, an order directing
paym ent to th e m ovant o f part or all o f the reasonable
attorney’s fees and other expenses directly resulting
from th e violation, including attorney’s fees for the
filing o f th e m otion for sanction. The lawyer or law
firm cannot pass on th e m onetary penalty to the
clien t.” (3a)
502 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat is th e requirem ent in order th a t pleadings and
o th er w ritten subm ission be p resen ted to th e co u rt?
A: Every pleading and other written submissions to the
court must be signed by the party or counsel representing
him or her.
Q: What are th e effects of th e signature of th e counsel
in th e pleading?
A: The signature of counsel constitutes as:
1) Certificate by him or her that he or she has read the
pleading and document;
2) That to the best of his or her knowledge, information,
and belief, formed after an inquiry reasonable under the
circumstances:
3) It is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
4) The claims, defenses, and other legal contentions
are warranted by existing law or jurisprudence, or by a non-
frivolous argument for extending, modifying, or reversing
existing jurisprudence;
5) 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
6) 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.
Q: W hat are th e consequences of violation of th e rule?
A: If the court determines, on motion or motu proprio and
after notice and hearing, that this rule has been violated, it
may:
1) Impose an appropriate sanction; or
 CHAPTER III 503
RULE 7: PARTS AND CONTENTS OF A PLEADING

2) 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.

Q: W hat are th e san ctio n s th a t m ay be im posed against

th e law firm in case of violation o f th e rule?
A: Absent exceptional circumstances, a law firm shall be
held jointly and severally liable for a violation committed by
its partner, associate, or employee which may include the
following, to wit:
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.
Q: W hat is th e prohibition as regards th e above
liabilities?
A: The lawyer or law firm cannot pass on the monetary
penalty to the client.

Q: W hat is th e du ty o f th e counsel in case of change of

his address?
A: It is the duty of counsel to promptly inform the court of
a change of his address.

Case Law:

Clearly, it is the duty of counsel to promptly inform

the court of a change of his address. The contention of the
defendants-appellants’ counsel that his failure to inform the
Court of his change of address was due to the fault of his legal
secretary in not including the instant case in the inventory of
his cases is a lame excuse and deserves no consideration. It
has to be stressed that it devolves upon every counsel to take
504 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

full responsibility in supervising the work in his office with

respect to all the cases he handles and he should not delegate
the responsibility to his legal secretary. (Mariano Navarro vs.
Jarson Development Corp., G.R. No. 142627, January 28,
2008)

Sample F orm Wo. 3: Signature amp Address

TAN LIBRANDA ONEZA

AND CEPILLO LAW OFFICE
Counsel for the Plaintiff
4-D, 4th Floor O sm ena Bldg.,
1991 Mabini St., Malate Manila

By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 4 9 9 0 5 6 2 /1-14-16/M la.
Roll No. 38488
MCLE Exemption No. V 000678/8-25-15
Tel. No. 521-6137

4. V erification (Bar E xam inations 2016 and 2013):

Sec. 4, Rule 7 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on verification of pleadings. It states that:
“Sec. 4 . Verification. — Except when otherw ise
specifically required by law or rule, pleadings need
not be under oath or verified.
A pleading is verified by an affidavit o f an
affiant duly authorized to sign said verification. The
authorization o f th e affiant to act on behalf o f a party,
w hether in th e form o f a secretary’s certificate or a
special power o f attorney, should be attached to the
pleading, and shall allege th e following attestations:
(a) The allegations in th e pleading are true and
correct based on h is or her personal knowledge, or
based on authentic docum ents;
 CHAPTER III 505
RULE 7: PARTS AND CONTENTS OF A PLEADING

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

unnecessary delay, or needlessly increase the co st of
litigation; and
(c) The factual allegations therein have
evidentiary support or, if specifically so identified, will
likew ise have evidentiary support after a reasonable
opportunity for discovery.
The signature o f th e affiant shall further serve as
a certification o f th e truthfulness o f the allegations in
th e pleading.
A pleading required to be verified that contains
a verification based on “inform ation and belief,” or
upon “knowledge, inform ation and belief,” or lacks
a proper verification, shall be treated as an unsigned
pleading. (4a)

COMMENTS:
Q: W hat is verification?
A: V erification is a statement under oath. It includes both
the actual swearing to the truth of the statements by the
subscriber and also the certification thereto by the notary
or other officer authorized to administer oath. (71 C.J.S.
Pleadings 343 [1931])
Q: W hat is th e rule on verification of a pleadings under
th e am ended rules?
A: Except when otherwise specifically required by law or
rule, pleadings need not be under oath or verified.
Q: How will th e pleading be verified under th e new
rules?
A: A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification.

Q: W hat is th e n atu re o f verification in th e pleading?

A: Verification of a pleading is only a formal and not
jurisdictional requisite.
506 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Verification of a pleading is a formal, not jurisdictional,

requirement. The requirement is simply a condition affecting
the form of the pleading and non-compliance with the
requirement does not render the pleading fatally defective.
(Carbonilla, et al. vs. Board o f Airlines Representatives, G.R.
No. 193247, September 14, 2011)

Q: W hat is th e purpose and significance of verification?

A: The purpose of the verification is to secure an assurance
that the allegations in the petition have been made in good
faith, or are true and correct and not merely speculative.

Case Law:

The purpose of the verification is to secure an assurance

that the allegations in the petition have been made in good
faith, or are true and correct and not merely speculative.
The requirement is simply a condition affecting the form
of pleadings and non-compliance therewith is neither
jurisdictional nor does it render the pleading fatally defective.
(Alma B. Russel vs. Teofista Ebasan and Agapito Austria, G.R.
No. 184542, April 23, 2010)
Q: Who m ay sign th e verification o th er th a n th e pleader?
A: A party’s representative, lawyer or any person who
personally knows the truth of the facts alleged in the pleading
may sign the verification.

Case Law:
On the other hand, the requirement on verification of
a pleading is a formal and not a jurisdictional requisite.
(Buenaventura vs. Uy, G.R. No. L-28156, March 31, 1987, 149
SCRA 220) It is intended simply to secure an assurance that
what are alleged in the pleading are true and correct and not
the product of the imagination or a matter of speculation, and
that the pleading is filed in good faith. The party need not
 CHAPTER III 507
RULE 7: PARTS AND CONTENTS OF A PLEADING

sign the verification. A party’s representative, lawyer or any

person who personally knows the truth of the facts alleged in
the pleading may sign the verification. (Florenz D. Regalado,
Remedial Law Compendium, Vol. I, Sixth Rev. Ed., 143; Colito
T. Pajuyo vs. Court of Tax Appeals, G.R. No. 146364, June 3,
2004)

Q: What is th e effect if th e person who signed th e

verification has no au th o rity to do so?
A: The effect if the person who signed the verification has
no authority to do is dismissal of the complaint since the
court has no jurisdiction over the complaint and the plaintiff.

Case Law:

What then, is the effect of a complaint filed by one who

has not proven his authority to represent a plaintiff in filing
an action? In Tamondong vs. Court of Appeals, the Court
categorically stated that “[i]f a complaint is filed for and
in behalf of the plaintiff [by one] who is not authorized to
do so, the complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect. Hence, the court
should dismiss the complaint on the ground that it has no
jurisdiction over the complaint and the plaintiff.” This ruling
was reiterated in Cosco Philippines Shipping, Inc. vs. Kemper
Insurance Company, where the Court went on to say that “[i]
n order for the court to have authority to dispose of the case
on the merits, it must acquire jurisdiction over the subject
matter and the parties. Courts acquire jurisdiction over the
plaintiffs upon the filing of the complaint, and to be bound
by a decision, a party should first be subjected to the court’s
jurisdiction. Clearly, since no valid complaint was ever filed
with the [MeTC], the same did not acquire jurisdiction over
the person of respondent [plaintiff before the lower court].”
Pursuant to the foregoing rulings, therefore, the MeTC never
acquired jurisdiction over this case and all proceedings
before it were null and void. The courts could not have delved
into the veiy merits of the case, because legally, there was
no complaint to speak of. The court’s jurisdiction cannot be
deemed to have been invoked at all. (Atty. Fe Q. Palmiano-
508 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Salvador vs. Constantino Angeles, Substituted by Luz G.

Angeles, G.R. No. 171219, September 3, 2012)
Q: What is th e possible actio n of th e co u rt in case of
lack of verification (Bar Exam ination 2018)?
A: The court may order the correction of the pleading if
verification is lacking, or act on the pleading although it is
not verified.*1

Case Law:

Verification of a pleading is only a formal requirement.

It is not jurisdictional as it is only a condition affecting the
form of the pleadings, and non-compliance therewith does
not necessarily render the pleading fatally defective. The
court may order the correction of the pleading if verification
is lacking or act on the pleading although it is not verified, if
the attending circumstances are such that strict compliance
with the rules may be dispensed with in order that the ends
of justice may thereby be served. (Mediserv, Inc. vs. Court of
Appeals, et al., G.R. No. 161368, April 5, 2010)
Q: W hat are th e requirem ents on th e authorization of
th e affiant to sign a verification?
A: 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:
1) The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on authentic
documents;
2) The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
3) The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise have
evidentiary support after a reasonable opportunity for
discovery.
 CHAPTER III 509
RULE 7: PARTS AND CONTENTS OF A PLEADING

Q: W hat is th e effect of th e signature of th e affiant in

th e verification?
A: The signature of the affiant shall further serve as a
certification of the truthfulness of the allegations in the
pleading.

Q: W hat is th e effect of a defective verification?

A: A pleading required to be verified 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.

Q: Is it required to s ta te in th e verification th e phrase

"personal knowledge or a u th en tic records”?
A: Yes, use of personal knowledge and authentic records is
required to be stated in the verification.

Case Law:
While the rule gives the pleaders several ways of verifying
their pleading, the use of the phrase personal knowledge or
authentic records is not without any legal signification and
the pleaders are not at liberty to choose any of these phrases
fancifully. (Makilito B. Mahinay vs. Ireneo Lee Gako, Jr., G.R.
Nos. 165338 and 179375, November 28, 2011)
Q: Is it required th a t m otion for reconsideration be
verified?
A: No, motion for reconsideration need not be verified under
rules, and verification is merely a formal requirement and not
jurisdictional.

Case Law:

We do not agree with petitioner’s assertion that the

motion for reconsideration should not have been allowed
since the respondent failed to pose a reasonable explanation
on the absence of verification.
510 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Time and again, we have said that non-compliance with

verification or a defect therein does not necessarily render
the pleading fatally defective. Verification, like in most cases
required by the rules of procedure, is a formal requirement,
not jurisdictional. It is mainly intended to secure an assurance
that matters which are alleged are done in good faith or are
true and correct and not of mere speculation. Thus, when
circumstances so warrant, “the court may simply order the
correction of unverified pleadings or act on it and waive strict
compliance with the rules in order that the ends of justice
may thereby be served.” (Juana Vda. de Rojales, substituted
by her heirs, represented by Celerina Rojales-Sevilla vs.
Mareclino Dime, substituted by his heirs, represented by
Bonifacia Manibay, G.R. No. 194548, February 10, 2016)

Q: Will lack of notarial seal renders defective th e

verification and certification of non-forum shopping?
A: No. The lack of notarial seal in the notarial certificate is
a defect in a document that is required to be executed under
oath, but it does not necessarily render the pleading fatally
defective.

Case Law:

The lack of notarial seal in the notarial certificate is a

defect in a document that is required to be executed under
oath.
Nevertheless, a defect in the verification does not
necessarily render the pleading fatally defective. The court
may order its submission or correction, or act on the pleading
if the attending circumstances are such that strict compliance
with the Rule may be dispensed with in order that the ends of
justice may be served. (Regulus Development, Inc. vs. Antonio
Dela Cruz, G.R. No. 198172, January 25, 2016)
Q: W hat are th e pleadings th a t should be verified under
th e rules and law? (Bar Exam ination 1991)
A: The following pleadings should be verified under the law
or rules, to wit.
 CHAPTER III 511
RULE 7: PARTS AND CONTENTS OF A PLEADING

|| a) O rdinary Civil Actions: ||

1) Original Complaint;
2) Permissive counter-claim;
3) Third/fourth, etc., party complaint;
4) Complaint for Intervention (Rule 19);
5) Petition for Review from the RTC to the CA (Sec. 1,
Rule 42);
6) Petition for Review from quasi-judicial agencies to
the Court of Appeals (Sec. 5, Rule 43);
7) Petition for Review on certiorari from the RTC, CTA,
SB, or CA to the SC (Sec. 4, Rule 45);
8) Petition for Annulment of judgments or final orders
and resolutions (Sec. 4, Rule 47);
9) Complaint for injunction;
10) Statement of Claim for Small Claims Cases, as well
as the Response thereto. (Secs. 5 and 11, Rules of Procedure
for Small Claims Cases);

b) Special Civil Actions: 1

1) Complaint for Interpleader (Rule 62)

2) Petition for certiorari against the judgments, final
orders or resolution of the COA and COMELEC (Sec. 2, Rule
64);
3) Petition for certiorari (Sec. 1, Rule 65);
4) Petition for prohibition (Sec. 2, Rule 65);
5) Petition for mandamus (Sec. 3, Rule 65);
6) Petition for quo warranto (Sec. 1, Rule 66);
7) Complaint for expropriation (Sec. 1, Rule 67);
8) Complaint for forcible entry or unlawful detainer
(Sec. 4, Rule 70);
512 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

9) Petition for indirect contempt (Sec. 4, Rule 71);

10) Petition for Writ of Kalikasan (Sec. 1, Rule 7, Part III,
Special Rules on Environmental Cases);
11) Petition for writ of continuing mandamus. (Sec. 1,
Rule 8, Part III, Special Rules on Environmental Cases)

1) Petition for probate of the will or intestate estate

proceedings;
2) Petition for Guardianship (Rule 92);
3) Petition for Custody of Minors (Rule 92);
4) Petition for Trusteeship (Rule 98);
5) Petition for adoption and Revocation of Adoption
(Rules on Adoption, A.M. No. 02-6-02-SC);
6) Petition for Hospitalization of Insane Person (Rule
101 );
7) Petition for Habeas Corpus (Sec. 3, Rule 102);
8) Petition for Change of Name (Sec. 2, Rule 103);
9) Petition for voluntary judicial dissolution of a
corporation (Sec. 1, Rule 104); and
10) Petition for cancellation or correction of entries in
the civil registry (Sec. 1, Rule 108) or for correction of a clerical
or typographical error in an entry pursuant to Republic Act
No. 9048 (Sec. 3, RA 9048);
11) Complaint for legal separation (Sec. 2[b][3], Rule on
Legal Separation);
12) Petition for declaration of absolute nullity of void
marriages and annulment of voidable marriages (Sec. 5,
Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages);
13) Petitions in summary judicial proceedings in the
family law based on Arts. 41, 51, 69, 73, 96, 124, 127, 223,
 CHAPTER III 513
RULE 7: PARTS AND CONTENTS OF A PLEADING

225, 235, and 239 of the Family Code (Arts. 239, 249 and
253, Family Code);
14) A petition for the issuance of a Writ of Amparo
and the return thereof; and in connection with the Amparo
proceedings, motion for an inspection order or for a production
order (The Rule on the Writ of Amparo);
15) A petition for the issuance of a writ of Habeas Data
and the return thereof. (The Rule on the Writ of Habeas Data)

1) Complaints filed under the Interim Rules of

Procedure on Intra-Corporate Controversies, as well as the
Answer thereto (Sec. 3, Rule 2, Interim Rules o f Procedure on
Intra-Corporate Controversies);
2) All pleadings, motions, oppositions, defenses or
claims filed by any interested party in any proceeding governed
by the Rules of Procedure on Corporate Rehabilitation (2008).
(Sec. 1, Rule 3, Rules of Procedure on Corporate Rehabilitation)

e) Tax Cases: 123

1) Complaints filed with the Court of Tax Appeals

(Sec. 1, Rule 6, Revised Rules of Procedure of the Court of Tax
Appeals);
2) Petitions for Review filed with the CTA. (Sec. 2, Rule
6, Revised Rules of Procedure o f the Court o f Tax Appeals)
Q: W hat are th e responsive pleadings th a t should be
verified or u n d er o ath ?
A: The following responsive pleadings are required to be
verified or under oath, as follows, to w it
1) Answer denying the allegations on the genuineness
and due execution of an actionable document (Sec. 8, Rule 8y,
2) Answer denying of allegations of usury (Sec. 11,
Rule 8);
3) Answer to written interrogatories (Sec. 2, Rule 25);
and
514 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4) Answer to request for admission (Sec. 2, Rule 26);

5) Answer to the original complaint under the Rules
on Summary Proceedings (Sec. 3, Rule 2, Revised Rules on
Summary Procedure);
6) Compulsory counterclaim and answer thereto under
the Rules on Summary Proceedings (Sec. 3, Rule 2, Revised
Rules on Summary Procedure);
7) Answer to cross claim under the Rules on Summary
Proceedings (Sec. 3, Rule 2, Revised Rules on Summary
Procedure);
8) Verified response under the rules on Small Claims
cases (A.M. No. 08-8-7-SC, Revised 2016 Rules on Small
Claims Cases);
9) Answer to Complaint in Environmental Cases. (Sec.
1, Rule 3)

Q: W hat are th e m o tio n s/ap p licatio n s which should be

verified or under o ath ?
A: The following motions/applications should be made
under oath or verified, to wit:
1) Motion to set aside a default order (Sec. 3[b], Rule
9; The Phil. British Co., et al. vs. De Los Angeles, etc., et al.,
L-33720-21, March 10, 1975);
2) Motion to postpone hearing on the ground of
absence of evidence (Sec. 3, Rule 30);
3) Motion to postpone hearing due to illness (Sec. 4,
Rule 30);
4) Motion to set aside judgment by default (Rule 9);
5) Motion for New Trial on the grounds of fraud,
accident, mistake or excusable negligence (Rule 37);
6) Petition for relief from judgment or order (Sec. 3,
Rule 38);
7) Application for appointment of Receiver (Sec. l,Rule
59 );
 CHAPTER III 515
RULE 7: PARTS AND CONTENTS OF A PLEADING

8) Application for issuance of writ of attachment (Rule

57);
9) Application for issuance of writ of injunction (Sec. 4,
Rule 58);
10) Application for appointment of a receiver (Sec. 1,
Rule 59);
11) Application for writ of replevin (Rule 60);
12) Application for support pendente lite (Sec. 1, Rule
61);
13) Petition for appointment of a general guardian (Sec.
2, Rule 93); Petition for appointment of limited guardian
under Sec. 6 of Rule 93 need not be verified;
14) Petition for leave to sell or encumber property of an
estate by a guardian (Sec. 1, Rule 95);
15) Petition for the declaration of competency of a ward
(Sec. 1, Rule 97);
16) Application of an issuance for a writ of search and
seizure in civil actions for infringement of intellectual property
rights (Sec. 4, Rule on Search and Seizure in Citnl Actions for
Infringement o f IP Rights);
17) Motion for an inspection order or for a production
order. (The Rule on the Writ o f Amparo)

Q: W hat are th e pleadings or m o tio ns w hich should be

accom panied w ith an affidavit o f m e rit?
A: The following pleadings or motions must be accompanied
by an affidavit or affidavit of merit as prescribed by the rules,
to w it
1) Motion for postpone for of hearing due to illness of a
party or counsel (Sec. 4, Rule 30);
2) Motion for summary judgment or opposition thereto
(Secs. 1, 2, 3 and 5, Rule 35);
3) Motion for new trial on the ground of fraud, accident,
mistake or excusable negligence or opposition thereto (Sec. 2,
Rule 37);
516 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4) Petition for relief from judgment, order or proceedings

(Sec. 3, Rule 38);
5) Third-party claim (Sec. 16, Rule 39);
6) Proof required of a redemptioner (Sec. 30, Rule 39);
7) Motion for preliminary attachment (Sec. 3, Rule 57);
8) Motion for dissolution of preliminary injunction
(Sec. 6, Rule 58);
9) Application for writ of replevin (Sec. 2, Rule 60);
10) Claim against the estate of a decedent (Sec. 9, Rule
86 );
11) Motion for new trial on the ground of newly-
discovered evidence in criminal cases. (Sec. 4, Rule 121)

S ample F orm No. 4; Verification

VERIFICATION /CERTIFICATION OF NON-FORUM

SHOPPING
REPUBLIC OF THE PHILIPPINES)
CITY OF MANILA ) S. S.
I, GERARDO F. LARA, of legal age, Filipino citizen,
m arried, and resident of #1136-A A. M aceda Street,
Sompaioc, Manila, after having been duly sworn to in
accordance with law do hereby depose and say:
1. That I am th e plain tiff In th e above-entitled case;
2. That I have caused th e preparation o f the
foregoing Complaint and have read th e allegations
contained therein;
3. The allegations in th e said com plaint are true
and correct o f m y own knowledge and authentic records;
4. The pleading is n o t filed to harass, cause
unnecessary delay, or n eed lessly increase th e c o st of
litigation; and
5. The factual allegations therein have evidentiary
support or, specifically so identified, will likew ise have
evidentiary support after reasonable opportunity for
discovery.
 CHAPTER III 517
RULE 7: PARTS AND CONTENTS OF A PLEADING

IN WITNE8S WHEREOF, I have hereunto affixed my

signature t h i s ___ day of M arch 2020, in the City of Manila.

GERARDO F. LARA
Affiant
SUBSCRIBED AND SWORN to before me t h i s _____ day
of M arch 2020, in the City of Manila, affiant exhibiting to me
her SSS/D rivers L icense/Passport. N o.___________________
issued a t _____________ o n ______________ .

Doc. N o .____ ;
Page N o .____ ;
Book N o .____ ;
Series of 2020.

5. C ertification A gainst Forum Shopping (Bar

E xam inations 2016 and 2013):

Sec. 5, Rule 7 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on forum shopping and certification against forum
shopping. It states that:
“Sec. 5. C ertification a g a in st forum shopping.
— The p lain tiff or principal party shall certify under
oath in th e com plaint or other initiatory pleading
assertin g a claim for relief, or in a sworn certification
annexed thereto and sim ultan eou sly filed therewith:
(a) th at he or she has n ot theretofore com m enced any
action or filed any claim involving th e sam e issu es
in any court, tribunal or quasi-judicial agency and,
to th e b est o f his or her knowledge, no such other
action or claim is pending therein; (b) if there is such
other pending action or claim , a com p lete statem en t
o f th e present sta tu s thereof; and (c) if he or she
should thereafter learn th at th e sam e or sim ilar
action or claim has been filed or is pending, he or
sh e shall report th at fact w ithin five (6) calendar days
therefrom to th e court w herein h is or her aforesaid
com plaint or initiatory pleading has been filed.
518 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The authorization o f th e affiant to act on behalf

o f a party, w hether in th e form o f a secretary's
certificate or a special power o f attorney, should be
attached to th e pleading.
Failure to com ply w ith th e foregoing requirem ents
shall n ot be curable by m ere am endm ent o f th e
com plaint or other initiatory pleading but shall be
cause for th e dism issal o f th e case w ithout prejudice,
u n less otherw ise provided, upon m otion and after
hearing. The subm ission o f a false certification or
non-com pliance with any o f th e undertakings therein
shall co n stitu te indirect contem pt o f court, w ithout
prejudice to th e corresponding adm inistrative and
crim inal action s. If the a c ts of th e party or h is or her
cou n sel clearly c o n stitu te willful and deliberate forum
shopping, th e sam e shall be ground for sum mary
dism issal w ith prejudice and shall c o n stitu te direct
contem pt, as well as a cause for adm inistrative
sanctions." (5a)

COMMENTS:

Q: W hat is forum shopping?

A: Forum shopping is the act of a litigant who
repetitively availed of several judicial remedies in different
courts, simultaneously or successively, all substantially
founded on the same transactions and the same essential
facts and circumstances, and all raising substantially the
same issues, either pending in or already resolved by some
other court, to increase the chances of obtaining a favorable
decision if not in one court, then in another. (Ma. Victoria M.
Galang vs. Peakhold Finance Corporation and the Register of
Deeds o f Caloocan City, G.R. No. 233922, January 24, 2018)

Q: W hat are th e elem en ts o f forum shopping?

A: The elements of forum shopping are 1) identity of parties;
2) identity of cause of action; 3) Judgment in one would result
to barred by prior judgment or litis pendentia.
 CHAPTER III 519
RULE 7: PARTS AND CONTENTS OF A PLEADING

Case Law:
Thus, to determine whether a party violated the rule
against forum shopping, it is essential to ask whether a final
judgment in one case will amount to res judicata in another
or whether the following elements of litis pendentia are
present: (a) identity of parties, or at least such parties are
representing the same interests in both actions; (b) identity of
rights asserted and reliefs prayed for, the relief being founded
on the same facts; and (c) the identity of the two preceding
particulars, such that any judgment rendered in the other
action will, regardless of which party is successful, amount
to res judicata in the action under consideration. (Ma. Victoria
M. Galang vs. Peakhold Finance Corporation and the Register
o f Deeds o f Caloocan City, G.R. No. 233922, January 24, 2018)
Q: W hat are th e th re e (3) ways o f co m m ittin g forum
shopping?
A: Forum shopping can be committed in three (3) ways:
1) By 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 p en d en tia );
2) By filing multiple cases based on the same cause
of action and with the same prayer, the previous case having
been finally resolved (where the ground for dismissal is res
ju d ic a ta ); and
3) By filing multiple cases based on the same cause
of action but with different prayers sp littin g o f cau ses of
action, where the ground for dismissal is also either litis
pendentia or res judicata). (Spouses Nelson R. Villanueva and
Myra P. Villanueva vs. The Court o f Appeals, G.R. No. 163433,
August 22, 2011)
Q: W hat is th e essen ce o f forum shopping?
A: The essence of forum shopping is the filing of multiple
suits involving the same parties for the same cause of action,
either simultaneously or successively, for the purpose of
obtaining a favorable judgment.
520 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The essence of forum shopping is the filing of multiple

suits involving the same parties for the same cause of action,
either simultaneously or successively, for the purpose of
obtaining a favorable judgment. It exists where the elements
of litis pendentia are present or where a final judgment in
one case will amount to res judicata in another. On the other
hand, for litis pendentia to be a ground for the dismissal of
an action, the following requisites must concur: (a) identity
of parties, or at least such parties who represent the same
interests in both actions; (b) identity of rights asserted
and relief prayed for, the relief being founded on the same
facts; and (c) the identity with respect to the two preceding
particulars in the two cases is 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.
Res judicata, in turn, has the following requisites: “(1)
the former judgment must be final; (2) it must have been
rendered by a court having jurisdiction over the subject matter
and over the parties; (3) it must be a judgment on the merits;
and (4) there must be, between the first and second actions,
(a) identity of parties, (b) identity of subject matter, and (c)
identity of cause of action.” (Malayan Insurance Co., Inc. et
a t vs. Emma Concepcion L. Lin, G.R. No. 207277, January 16,
2017)

Q: Is forum shopping p resen t in case of an n u lm en t of

Real E state M ortgage and actio n for in ju n ctio n invoking
th e nullity of Real E state M ortgage?
A: Yes, there is identity of cause of action and the relief
prayed for in the two actions which is the nullification of the
Real Estate Mortgage, hence, forum shopping exists.

Case Law:

There can be no determination of the validity of the

extrajudicial foreclosure and the propriety of injunction in
 CHAPTER III 521
RULE 7: PARTS AND CONTENTS OF A PLEADING

the Injunction Case without necessarily ruling on the validity

of the REM, which is already the subject of the Annulment
Case. The identity of the causes of action in the two cases
entails that the validity of the mortgage will be ruled upon
in both, and creates a possibility that the two rulings will
conflict with each other. This is precisely what is sought to be
avoided by the rule against forum shopping. (FCD Pawnshop
and Merchandising Company, Fortunato C. Dionisio, Jr., and
Franklin C. Dionisio Vs. Union Bank Of The Philippines, Atty.
Norman R. Gabriel, Atty. Engracio M. Escasinas, Jr., And The
Registry Of Deeds For Makati City, January 18, 2017, G.R. No.
207914, Del Castillo, J.)
Q: Does forum shopping e x ist in case of a pending civ il/
crim in al case an d ad m in istrativ e case?
A: No, criminal and civil cases are altogether different from
administrative matters, such that the disposition in the first
two will not inevitably govern the third and vice versa.

Lssi.LawJ
“The settled rule is that criminal and civil cases are
altogether different from administrative matters, such that
the disposition in the first two will not inevitably govern
the third and vice versa. ” In the context of the case at bar,
matters handled by the IC are delineated as either regulatory
or adjudicatory, both of which have distinct characteristics.
(Malayan Insurance Co., Inc., Yvonne S. Yuchengco, Atty.
Emmanuel G. Villanueva, Sonny Rubin, Engr. Francisco
Mondelo, and Michael Requijo vs. Emma Concepcion L. Lin,
G.R. No. 207277, January 16, 2017, Del Castillo, J.)

Q: Does forum shopping ex ist if one a ctio n challenges

th e v alidity o f th e ju d g m en t an d th e o th e r challenges th e
in te rp re ta tio n o f th e ju d g m e n t o f th e co u rt in relatio n to
execu tio n ?
A: No, forum shopping if one action challenges the validity
of the judgment and the other challenges the interpretation of
the judgment of the court in relation to execution since there
is no similarity of cause of action and relief prayed for.
522 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The elements of forum shopping are: (i) identity of parties,

or at least such parties representing the same interest; (ii)
identity of rights asserted and relief prayed for, the latter
founded on the same facts; (iii) any judgment rendered in
one action will amount to res judicata in the other action.
After the denial of the petition for annulment of judgment, Ng
Beng Shen joined the other respondents in filing a petition for
prohibition. We are now called upon to ascertain whether the
recourse to the petition for prohibition amounted to forum
shopping.
The two cases filed collectively by the respondents are
similar only in that they involve the same parties. The cases,
however, involve different causes of actions. The petition for
review on certiorari was filed to review the merits of the RTC’s
judgment. On the other hand, the petition for prohibition
respects the finality of the RTC’s judgment on the merits but
interprets the dispositive portion in a way that would render
the execution unnecessary. Thus, the elements of forum
shopping are not present in the two cases. (Orix Metro Leasing
and Finance Corporation vs. Cardline, Inc., Mary C. Calubad,
Sony N. Calubad, and the Heirs of Ng Beng Sheng, Puring C.
Ng, et al., G.R. No. 201417, January 13, 2016, J. Brion)
Q: Does forum shopping ex ist w hen th e p arty files a
P etitio n for C ertiorari questioning th e ju risd ictio n of th e
CIAC and P etitio n for Review u n d er Rule 43 praying th a t
th e decision o f CIC be se t aside for w ant of ju risd ictio n ?
A: Yes, forum shopping is present as the elements are
present since the parties are the same, and there is similarity
in the relief being demanded which is to nullify the decision
of CIC for lack of jurisdiction.

| C ..e Law: ||

Thus, the test for determining the existence of forum

shopping is whether a final judgment in one case amounts
to res judicata in another or whether the following elements
 CHAPTER III 523
RULE 7: PARTS AND CONTENTS OF A PLEADING

of litis pendentia axe present: (a) identity of parties, or at

least such parties as representing the same interests in both
actions; (b) identity of rights asserted and reliefs prayed for,
the relief being founded on the same facts; and (c) identity
of the two preceding particulars, such that any judgment
rendered in the other action will, regardless of which party
is successful, amount to res judicata in the action under
consideration. Said requisites are also constitutive of the
requisites for auter action pendant or lis pendens.
After a careful scrutiny of the facts of the instant case, we
find that all of the foregoing elements are present. As borne
by the records, it is undisputed that Villamor, et al. filed two
(2) petitions before the CA: (1) a Petition for Certiorari under
Rule 65; and (2) a Petition for Review under Rule 43.
On this score, we sustain the findings of the appellate
court. On the one hand, Villamor, et al. argued in their
Petition for Certiorari that the CIAC’s denial of their Motion
to Dismiss and Motion for Reconsideration was tainted with
grave abuse of discretion amounting to lack or excess of
jurisdiction because the CIAC did not have jurisdiction over
the case. Thus, among others, they prayed that judgment
be rendered: (1) declaring null and void the orders of the
CIAC denying their motions; and (2) ordering the CIAC to
dismiss the complaint for lack of jurisdiction. On the other
hand, in their Petition for Review, Villamor, et al. argued
that the CIAC’s Final Award was erroneous for it did not
have jurisdiction over the case. Thus, among others, they
prayed that judgment be rendered: (1) setting aside the Final
Award of the CIAC; and (2) dismissing the case for lack of
jurisdiction. (Villamor and Victolero Construction Company vs.
Sogo Realty and Development Corporation, G.R. No. 2118771,
June 3, 2019)
Q: Is forum shopping p resen t if one of th e cases is a
labor case an d th e o th e r one is a civil case for breach of
c o n tra c t?
A: No forum shopping in case there is no identity of causes
of action and relief sought.
524 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

While there is identity of parties in the two cases, the

causes of action and the reliefs sought are different. The issue
raised in the present case is whether there was constructive
dismissal committed by respondent. On the other hand, the
issue in the civil case pending before the RTC is whether
petitioner was guilty of breach of contract. Hence, respondent
is not guilty of forum shopping. (Ma. Mercedes L. Barba vs.
Liceo De Cagayan University, G.R. No. 193857. November 28.
2012)

Q: Are appeals and p etitio n s for certio rari w ithin th e

scope o f forum shopping?
A: Appeals and petitions for certiorari are normally outside
the scope of forum shopping because of their nature and
purpose; they grant a litigant the remedy of elevating his case
to a superior court for review, except when availed of when
the issue is still pending before the trial court.

Case Law:

Appeals and petitions for certiorari are normally outside

the scope of forum shopping because of their nature and
purpose; they grant a litigant the remedy of elevating his case
to a superior court for review.
It is assumed, however, that the filing of the appeal
or petition for certiorari is properly or regularly invoked in
the usual course of judicial proceedings, and not when the
relief sought, through a petition for certiorari or appeal, is
still pending with or has yet to be decided by the respondent
court or court of origin, tribunal, or body exercising judicial
or quasi-judicial authority, e.g., a still pending motion for
reconsideration of the order assailed via a petition for certiorari
under Rule 65. (Alfredo L. Villamor, Jr. vs. Hon. Amelia C.
Manalastas, et al., G.R. No. 171247, July 22, 2015)
 CHAPTER III 525
RULE 7: PARTS AND CONTENTS OF A PLEADING

1) Act of Forum Shopping a Ground for a Motion

to Dismiss:

Q: Is forum shopping a ground for th e filing of m otion to

dism iss an action?
A: Yes, forum shopping can be a ground for the dismissal of
an action based on litis pendentia or barred by priorjudgment
under Sec. 12(a), Rule 15.*1

Procedural Basis:

Sec. 12(a), sub-paragraph (2) and (3) of Rule 15 of the

2019 A m endm ent to th e 1997 Rules on Civil Procedure
provides for the rule on motion to dismiss. It states that:
“Sec. 12. Prohibited motions. — The following
m otions shall not be allowed:
(a) Motion to dism iss except on the following
grounds:
1) That the court has no jurisdiction over
the subject m atter of the claim;
2) That there is another action pending
between the sam e parties for the sam e cause;
and
3) That the cause o f action is barred by a
prior judgm ent or by the statute o f lim itations.”

2) Remedy in Case of Failure to File a Motion to

Dismiss on th e Ground of Forum Shopping:

Q: What is th e rem edy of th e defendant if he failed

to raise th e ground of forum shopping in a m otion to
dism iss?
A: Defendant may raise it as an affirmative defense in the
answer since it is not barred if not raised in a motion to
dismiss.
526 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 1, Rule 9 provides for the rule raising the ground

of barred by priorjudgment or litis pendentia as an affirmative
defense in the answer. It states that:
“Sec. 1. Defenses an d objections not pleaded. —
Defenses and objections not pleaded either in a motion to
dism iss or in the answ er are deemed waived. However,
when it appears from th e pleadings or th e evidence
on record th a t the court has no jurisdiction over the
subject m atter, that there is another action pending
between th e sam e parties for th e sam e cause, or that
th e action is barred by a prior judgm ent or by statute
o f lim itations, th e court shall dism iss the claim . (1)”

3) M otu P ro p rio D ism issal o f th e Action on th e Ground

of Forum Shopping:_____________________________

Q: Can th e co u rt m o tu p r o p r io dism iss th e action on

th e ground a c t of forum shopping?
A: The court may motu proprio dismiss the case based on
act of forum shopping resulting to litis pendentia and barred
by prior judgment under Sec. 1, Rule 9.

Procedural Basis:

Sec. 1, Rule 9 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. NO. 19-10-20) provide for
the rule on defenses and objection not pleaded. It states that:
“Section 1. Defenses and objections not pleaded.
— Defenses and objections not pleaded either in a motion
to dism iss or in the answ er are deemed waived. However,
when it appears from th e pleadings or th e evidence
on record th a t the court has no jurisdiction over the
subject m atter, that there is another action pending
betw een th e sam e parties for the sam e cause, or that
th e action is barred by a prior Judgment or by statu te
of lim itations, the court shall dism iss the claim. (1)”
 CHAPTER III 527
RULE 7: PARTS AND CONTENTS OF A PLEADING

Q: W hat will be th e basis of th e m o tu p r o p io dism issal of

th e case based on forum shopping?
A: The ground for dismissal must be evident from the
pleadings or from the evidence on record before a court can
dismiss a case motu proprio.

L-ggg. LawTjJ
A violation of the [Section 5, Rule 7] — other than through
willful and deliberate forum shopping — does not authorize
the RTC to dismiss a case without motion and hearing. Even
the submission of a false certification of non-forum shopping
does not automatically warrant dismissal of the case, even
if it might constitute contempt of court. Significantly, the
petitioner did not move for the dismissal of the petition in
Civil Case No. 2257 or to cite the respondents for indirect
contempt. She also failed to show that the respondents
committed willful and deliberate forum shopping. Instead,
she raised the issue of forum shopping and non-compliance
with Rule 7, Section 5 only on appeal.
This Court is mindful of the rule that trial courts may
dismiss a case motu proprio on the ground of litis pendentia,
among other things. This rule is found in Rule 9, Section 1 of
the Rules of Court[.j
However, the ground for dismissal must be evident
from the pleadings or from the evidence on record before
a Court can dismiss a case motu proprio. (Rowena C. De
Leon As Substituted by Her Children John Kevin C. De Leon
and Eisenhower Callumba vs. Lolita Chu and Domingo Delos
Santos, G.R. No. 186522, September 2, 2015)

4) Nature of D ism issal o f th e Action on th e Ground

o f Forum Shopping:__________________________

Q: W hat is th e natu re o f dism issal on th e ground of act

of forum shopping resulting to li tis p e n d e n tia or barred
by prior ju d g m en t?
A: The dismissal of the case based on act of forum shopping
resulting to litis pendentia or barred by prior judgment is a
528 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

dismissal with prejudice and a final order that completely

disposes of the case which bars the re-filing of the case under
Sec. 13 of Rule 15, and therefore appealable under Sec. 1,
Rule 41.

Procedural Basis:

Sec. 13, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on dismissal with prejudice. It states that:
"Sec. 13. D ism issal w ith prejudice. — Subject
to th e right o f appeal, an order granting a m otion to
dism iss or an affirmative defense that th e cause of
action is barred bv a prior judgment or by th e statute
o f l i m i t a t i o n s ; that the claim or dem and set forth in the
plaintiffs pleading h as been paid, waived, abandoned or
otherwise extinguished; or th a t the claim on which the
action is founded is unenforceable under the provisions
of the statu te of frauds, shall bar th e refiling o f the
sam e action or claim .”

Whereas, Sec. 1, Rule 41 of th e 1997 Rules on Civil

Procedure provides for the rules on appeal. It states that:
"Sec. 1. Subject o f a p p e a l — An appeal may be
taken from a judgm ent or final order that com pletely
disposes of th e case, or of a particular m atter therein
when declared by th ese Rules to be appealable.

5) M otu P ro p rio Dismissal of th e Action on th e Ground

o f Forum Shopping under th e Rules on Sum m ary
Procedure:

Q: Can th e co u rt m otu proprio dism iss th e case based

on res ju d icata or litis pendentia in cases under th e Rules
on Sum m ary Procedure.
A: Yes, pursuant to Sec. 4, Rules on Summary Procedure
the court may dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.
 CHAPTER III 529
RULE 7: PARTS AND CONTENTS OF A PLEADING

Procedural Basis:

Sec. 4 of th e Rules on Sum m ary Procedure provides

for the rule on outright dismissal of the action which includes
certification of non-forum shopping. It states that:
“Sec. 4 . Duty o f court. — After the court
determ ines that th e case falls under summary
procedure, it may, from an exam ination o f the
allegations therein and such evidence as may be
attached thereto, dism iss the case outright on any of
the grounds apparent therefrom for th e dism issal o f a
civil action.”

6) M otu P ropio Dismissal of th e Action on th e Ground

of Forum Shopping u n d er th e 2016 Revised Rules
on Small Claims Cases:

Q: Can th e co u rt m otu proprio dism iss th e action based

on res ju d icata or litis pen d en tia in cases under th e
Revised 2016 Rules on Sm all Claims Cases?
A: Yes, pursuant to Sec. 11 of the 2016 Revised Rules on
Small Claims Cases, the court by itself dismiss the case
outright on any of the grounds apparent therefrom for the
dismissal of a civil action.

Procedural Basis:

Sec. 11 of th e Revised Rules on Small Claims Cases

(A.M. No. 08-8-7-SC, as amended) provides for the motu proprio
dismissal of the case on any of the grounds for dismissal. It
states that:
“Sec. 11. D ism issal o f the Claim. — After the
court determ ines that th e case falls under th ese
Rules, it may, from an exam ination of the allegations
o f th e Statem ent o f C laim /s and such evidence a t­
tached thereto, by itself, dism iss th e case outright on
any o f the grounds for th e dism issal o f the case. The
order o f dism issal shall state if it is with or without
prejudice.
530 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

If, during th e hearing, th e court is able to de­

term ine that there ex ists a ground for dism issal of
th e Statem ent o f C laim /s, th e court may, by itself,
dism iss th e case even if such ground is not pleaded in
th e defendant's Response."

b) C ertification of Non-Forum Shopping:

Q: W hat is th e rule on th e certification against forum

shopping?
A: The plaintiff or 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 or she has not theretofore 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
or her knowledge, no such other action or claim is pending
therein;
(b) if there is such other pending action or claim, a
complete statement of the present status thereof; and
(c) if he or she should thereafter learn that the same or
similar action or claim has been filed or is pending, he or she
shall report that fact within five (5) calendar days therefrom to
the court wherein his or her aforesaid complaint or initiatory
pleading has been filed.
Q: Who has th e duty to declare pending su its in th e
certificatio n o f non-forum shopping?
A: It is the duty of the plaintiff, not the defendant, to declare
pending suits it initiated between and among parties in its
verification and certificate of non-forum shopping and not the
other way around.

Case Law:

Anent dismissal on ground of forum shopping, the same

is likewise denied for lack of merit. It is well-settled that it is
 CHAPTER III 531
RULE 7: PARTS AND CONTENTS OF A PLEADING

the duty of the plaintiff, not the defendant, to declare pending

suits it initiated between and among parties in its verification
and certificate of non-forum shopping and not the other way
around. A plaintiff in a civil case therefore, is not mandated
under the Rules to declare that said plaintiff was a defendant
in a prior suit instituted against him and other defendants
by the defendant in a subsequent case of different nature.
(Jesse Yap vs. Court of Appeals Special Eleventh Division, and
Eliza Chua and Evelyn Te, G.R. No. 186730, June 13, 2012)

Q: Is it required th a t th e word "prom ptly inform ” on th e

filing of o th er cases be sta te d in th e certification against
forum shopping?
A: No, the rules do not make use of the phrase “promptly
inform” as it specifically provides that the party should notify
the court within five days from discovering a similar case
pending before another court.

Case Law:

Under Section 5, Rule 7 of the Rules of Court, the

following details must be stated in the certificate against
forum shopping:
a) The party has not commenced any action involving
the same issues in any court or tribunal, or that there is
no pending case involving the same issue to the best of his
knowledge;
b) A complete statement of the present status if there
is such other pending action; and
c) Notify the court wherein the complaint or initiatoiy
pleading is filed, withing five days should the party thereafter
learn that the same or similar action has been filed or is
pending.
Lozano’s certificate against forum shopping fully
contained the information required and was written in the very
words used by the Rules of Court. Contrary to Fernandez’s
position, the rules do not make use of the phrase “promptly
inform” as it specifically provides that the party should
532 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

notify the court within five days from discovering a similar

case pending before another court. (Ma. Antonette Lozano vs.
Jocelyn K. Fernandez, G.R. No. 212979, February 18, 2019)

Q: Is it required to s ta te in th e refiled com plaint of th e

fact of prior dism issal of th e case w ithout prejudice u nder
Sec. 1, Rule 17?
A: No. There is no need to state in the certification of non­
forum shopping is a subsequent re-filed complaint the fact of
the prior filing and dismissal of the former complaint.

Case Law:

When a complaint is dismissed without prejudice at the

instance of the plaintiff, pursuant to Sec. 1, Rule 17 of the
1997 Rules of Civil Procedure, there is no need to state in
the certification of non-forum shopping is a subsequent re-
filed complaint the fact of the prior filing and dismissal of
the former complaint. (Bendicto vs. Lacson, et al., G.R. No.
141508, May 5, 2010)

1) R equirem ent of au th o rizatio n to a c t for th e

party:

Q: W hat is th e requirem ent on th e au thorization of th e

affiant to a c t for and in behalf o f th e p arty u nder th e
am ended rules?
A: 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.

Case Law:

Under Section 5, Rule 7 of the Rules of Court, and as held

by a catena of cases decided by the Court, it is the plaintiff or
principal party who should execute the certification of non­
forum shopping under oath. However, this rule is not entirely
inflexible.
 CHAPTER III 533
RULE 7: PARTS AND CONTENTS OF A PLEADING

The Court has held that if, for reasonable or justifiable

reasons, the party-pleader is unable to sign the certification,
another person may be authorized to execute the certification
on his or her behalf through a Special Power of Attorney.
(Carmelita V. Dizon vs. Jose Luis K. Matti, Jr., G.R. No. 215614,
March 27, 2019)
Q: What is th e requirem ent in case th e p arty is a
corporation?
A: Board Resolution is required in signing the certificate of
non-forum shopping in case of a corporation.

J^ C a se ^ a w ^

The requirement that a petitioner or principal party

should sign the certificate of non-forum shopping applies even
to corporations, considering that the mandatory directives
of the Rules of Court make no distinction between natural
and juridical persons. A corporation, however, exercises
its powers through its board of directors and/or its duly
authorized officers and agents. Physical acts, like the signing
of documents, can be performed only by natural persons
duly authorized for the purpose by corporate by-laws or by a
specific act of the board of directors. (Mediserv, Inc. vs. Court
of Appeals, G.R. No. 161368, April 5, 2010)

n sign th e certification of non'

Q: Who shall sign th e certification of non-forum

shopping?
A: As a rule, the plaintiff or principal party shall sign the
certification against forum shopping since he has the personal
knowledge of the existence of cases filed before the court as
clearly mandated by Sec. 5, Rule 7 of the 1997 Rules on Civil
Procedure.
534 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Can th e atto rn ey -in -fact sign th e certificatio n against

forum shopping?
A: Yes, the attorney-in-fact, who has the authority to file,
and who actually filed the complaint is a party to the case.

Case Law:
The attorney in fact, who has the authority to file, and
who actually filed the complaint as the representative of the
plaintiff, is party to the ejectment suit. (Anita Monasterio, et
al. vs. Jose Juan Tong, G.R. No. 151369, March 23, 2011)

Q: Who shall sign th e certificatio n of non-forum

shopping in case o f a co rp o ratio n ?
A: In the case of the corporations, the physical act of signing
may be performed, on behalf of the corporate entity, only by
specifically authorized individuals for the simple reason that
corporations, as artificial persons, cannot personally do the
task themselves.

Case Law:

According to Section 5, Rule 7 of the Rules of Court, and as

held by a catena of cases decided by the Court, it is the plaintiff
or principal party who should execute the certification of non­
forum shopping under oath. In the case of the corporations,
the physical act of signing may be performed, on behalf of the
corporate entity, only by specifically authorized individuals
for the simple reason that corporations, as artificial persons,
cannot personally do the task themselves. (Filipinas Eslon
Manufacturing Corp. vs. Heirs ofBasilio Llanes, et al., G.R. No.
194114, March 27, 2019)

Q: Can a co rpo rate counsel be allowed to sign th e

certificatio n ag ain st forum shopping?
A: By way of exception based on the merits of the case and
compelling reason, corporate counsel can sign the certification
of non-forum shopping for and in behalf of the corporation.
 CHAPTER III 535
RULE 7: PARTS AND CONTENTS OF A PLEADING

Case Law:

“Indeed, while the requirement as to certificate of non­

forum shopping is mandatory, nonetheless the requirements
must not be interpreted too literally and thus defeat the
objective of preventing the undesirable practice of forum­
shopping.
Thus, the subsequent submission of the authority
granted to herein respondent’s counsel to sign the certification
is substantial compliance, especially in view of the merits of
the instant case.” (Elinel Cana vs. Evangelical Free Church of
the Philippines, G.R. No. 157573, February 11, 2008)
Q: Can th e counsel sign th e certification of non-forum
shopping?
A: As a general rule no since the attestation contained in
the certification of non-forum shopping requires personal
knowledge by the party who executed the same.

Case Law:

The issue of a counsel executing a certificate of non­

forum shopping has been settled in Suzuki vs De Guzman
where the Court affirmed the CA’s dismissal of a petition
for certiorari because the certificate was signed by counsel
and not by the petitioners themselves. The Court ruled: The
Court also cannot accept the signature of petitioners’ counsel
as substantial compliance with the Rules. The attestation
contained in the certification of non-forum shopping requires
personal knowledge by the party who executed the same. A
certification against forum shopping signed by counsel is a
defective verification and constitutes a valid cause for the
dismissal of the petition. (Radon vs. MST Marine Services
Philippines, Inc., G.R. No. 219291, July 4, 2018)
Q: When can th e counsel sign th e certification of non­
forum shopping?
A: If the party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of record to
sign on his behalf based on justifiable reasons.
536 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Finally, the certification against forum shopping must be

executed by the party-pleader, not by his counsel. If. However,
for reasonable or justifiable reasons, the party-pleader is
unable to sign, he must execute a Special Power of Attorney
designating his counsel of record to sign on his behalf. (Brgy.
Tongonan, Ormoc City vs. Hon. Apolinario M. Buaya, G.R. No.
204183, June 20, 2018)

Q: Can th e certificatio n against forum shopping be

notarized by a clerk o f c o u rt?
A: No, the notarization of verifications and certifications
on non-forum shopping is not part of a clerk of court’s daily
official functions since their work load is already heavy, and
such notarization of private documents can be done by a
commissioned notary public.

I^JD aseL aw j^

This Court cannot agree with petitioner’s argument that

the notarization of verifications and certifications on non­
forum shopping constitutes part of a clerk of court’s daily
official functions. We are not prepared to rule in petitioner’s
favor on this score; as it is, the workload of a clerk of court
is already heavy enough. We cannot add to this the function
of notarizing complaints, answers, petitions, or any other
pleadings on a daily or regular basis; such a responsibility
can very well be relegated to commissioned notaries public.
Besides, if the practice - specifically the notarization by
clerks of court of pleadings filed in cases pending before their
own salas or courts - is allowed, unpleasant consequences
might ensue; it could be subject to abuse, and it distracts the
clerks of court’s attention from the true and essential work
they perform. (Uwe Mathaeus vs. Spouses Eric and Genevieve
Medequiso, G.R. No. 196651, February 3, 2016)
 CHAPTER III 537
RULE 7: PARTS AND CONTENTS OF A PLEADING

3) In stan ces w here certificatio n o

shopping is n o t required:

Q: Is certificatio n o f non-forum shopping required in

case o f a p e titio n for issuance o f w rit of possession?
A: No. An ex parte petition for the issuance of writ of
possession is not a complaint or other initiatory pleading as
contemplated in Section 5, Rule 7 of the 1997 Rules of Civil
Procedure that requires certification against forum shopping.

Case Law:

The Honorable Supreme Court has already ruled that

a certificate against forum shopping is not a requirement in
an ex parte petition for the issuance of a writ of possession.
An ex parte petition for the issuance of writ of possession is
not a complaint or other initiatory pleading as contemplated
in Section 5, Rule 7 of the 1997 Rules of Civil Procedure.
(Angelina De Guzman, et al. vs. Gloria A. Chico G.R. No.
195445. December 7, 2016)

Q: Is certificatio n ag ain st forum shopping required in

an Answer w ith com pulsory co u n terclaim ?
A: No. Certification against forum shopping is not required
in an Answer with compulsory counterclaim since it is not an
initiatory pleading.

Case Law:

As to the failure to submit a certificate of forum shopping,

PGSMC’s Answer is not an initiatory pleading which requires
a certification against forum shopping under Sec. 5 of Rule
7, 1997 Revised Rules of Civil Procedure. It is a responsive
pleading hence the courts a quo did not commit reversible
error in denying KOGIES’ motion to dismiss PGSMC’s
compulsory counterclaims. (Korea Technologies Co., Ltd. vs.
Hon. Alberto A. Lerma, G.R. No. 143581, January 7, 2008)
538 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4) Rule on effects o f failure to com ply w ith th e

certificatio n on non-forum shopping:

Q: W hat are th e effects o f failure to com ply w ith above

rule?
A: Failure to comply with the foregoing requirements, shall
have the following effects:
1) It shall not be curable by mere amendment of the
complaint or other initiatory pleading;
2) It shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after
hearing.

5) Rule on am en d m en t o f th e pleading in case of non'

com pliance:____________________________________

Q: Can th e pleading be am ended in case th e re is failure

to com ply w ith certificatio n ag ain st forum shopping?
A: As a general rule, under Sec. 5, Rule 7 amendment
of the pleading is not allowed in case of failure to comply
with certification against forum shopping, except in case
of substantial compliance or the presence of special
circumstances or compelling reasons.

Case Law:

As a general rule, petitions that lack or have a defective

certificate of non-forum shopping cannot be cured by
its subsequent submission or correction, unless there
is a reasonable need to relax the rules on the ground of
substantial compliance or presence of special circumstances
or compelling reasons. The court has the discretion to dismiss
or not to dismiss an appellant’s appeal but said discretion
must be a sound one, to be exercised in accordance with the
tenets of justice and fair play, having in mind the unique
circumstances obtaining in each case. Technicalities, as much
as possible, must be avoided. When technicality abandons its
 CHAPTER III 539
RULE 7: PARTS AND CONTENTS OF A PLEADING

proper office as an aid to justice and instead becomes its great

hindrance and chief enemy, it deserves scant consideration
from courts. Litigations m ust be decided on their merits and
not on sheer technicality, for rules of procedure are used
to help secure, not override substantial justice. Every party
litigant must be afforded the amplest opportunity for the
proper and ju st determination of his cause. Thus, dismissal
of appeals purely on technical grounds is frowned upon since
the policy of the courts is to encourage hearings of appeals
on their merits and not to apply the rules of procedure in a
very rigid, technical sense. It would be more prudent for the
courts to forego a technical lapse and allow the review of the
parties’ case on appeal to attain the ends of justice rather
than to dispose of the case on technicality and cause grave
injustice to the parties, giving nothing but false impression
of speedy disposal of cases. (Jorge B. Navarra vs. People of
the Philippines, Hongkong and Shanghai Banking Corporation,
G.R. No. 203750, June 6, 2016)

Rule on dism issal o f th e actio n in case of

non-com pliance:__________________________

Q: Can th e c o u rt m o tu p r o p r io dism iss th e case for

failure to com ply w ith th e req u irem en t of certificatio n
ag ain st forum shopping?
A: No. There can be no motu proprio dismissal in case of
failure to comply with the certification against forum shopping
since it requires notice and hearing under Sec. 5, Rule 7, and
it is not one of the grounds mentioned under Sec. 1, Rule 9
on motu proprio dismissed.

Case Law:

A violation of the [Section 5, Rule 7] — other than through

willful and deliberate forum shopping — does not authorize
the RTC to dismiss a case without motion and hearing. Even
the submission of a false certification of non-forum shopping
does not automatically warrant dismissal of the case, even
if it might constitute contempt of court. Significantly, the
petitioner did not move for the dismissal of the petition in
540 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Civil Case No. 2257 or to cite the respondents for indirect

contempt. She also failed to show that the respondents
committed willful and deliberate forum shopping. Instead,
she raised the issue of forum shopping and non-compliance
with Rule 7, Section 5 only on appeal.
This Court is mindful of the rule that trial courts may
dismiss a case motu proprio on the ground of litis pendentia,
among other things. This rule is found in Rule 9, Section 1 of
the Rules of Court.
However, the ground for dismissal must be evident
from the pleadings or from the evidence on record before
a Court can dismiss a case motu proprio. (Rowena C. De
Leon as substituted by her children John Kevin C. De Leon
and Eisenhower Callumba vs. Lolita Chu and Domingo delos
Santos, G.R. No. 186522, September 2, 2015)
Q: W hat is th e natu re o f th e dism issal? W hat is th e
rem edy?
A: The nature of the dismissal is without prejudice to
the refilling of the action under Sec. 13, Rule 15, and the
Remedy is refilling of the action since the dismissal for lack
of certification against forum shopping does not fall under
paragraph (f) (h) and (i) of the said rules which can be the
subject of appeal.
Q: W hat is th e effect of failure to sign th e certification
against forum shopping?
A: Failure to sign the verification and certification against
forum shopping is a fatal defect which will result to dismissal
of the petition.

Case Law:

However, this very case does not involve a failure to attach

the Annexes. Rather, the procedural infirmity consists of
omission — the failure to sign a Verification and Certification
against forum shopping. Addressing this defect squarely, we
have already resolved that because of non-compliance with
the requirements governing the certification of non-forum
 CHAPTER III 541
RULE 7: PARTS AND CONTENTS OF A PLEADING

shopping, no error could be validly attributed to the CA

when it ordered the dismissal of the special civil action for
certiorari. The lack of certification against forum shopping is
not curable by mere amendment of a complaint, but shall
be a cause for the dismissal of the case without prejudice.
Indeed, the general rule is that subsequent compliance with
the requirements will not excuse a party’s failure to comply in
the first instance. Thus, on procedural aspects, the appellate
court correctly dismissed the case. (Vivian T. Ramirez, et at vs.
Mar Fishing Co., Inc., Miramar Fishing Co., Inc., Robert Buehs and
Jerome Spitz, G.R. No. 168208, June 13, 2012)

7) S ubstantial Compliance Rule applicable in

certification against forum shopping:

Q: Is su b stan tial com pliance rule applicable as to th e

co n ten ts o f th e certification of non-forum shopping?
A: Yes, substantial compliance rule is applicable as to the
contents ofthe certification based on justifiable circumstances.

|_ jC a s e J * w ^
As to respondents’certification on non-forum shopping, a
reading of respondents’Verification/Certification reveals that
they, in fact, certified therein that they have not commenced
any similar action before any other court or tribunal and to the
best of their knowledge no such other action is pending therein.
The only missing statement is respondents’ undertaking that
if they should thereafter learn that the same or similar action
has been filed or is pending, they shall report such fact to the
court. This, notwithstanding, the Court finds that there has
been substantial compliance on the part of respondents.
It is settled that with respect to the contents of the
certification against forum shopping, the rule of substantial
compliance may be availed of. This is because the requirement
of strict compliance with the provisions regarding the
certification of non-forum shopping merely underscores its
mandatory nature in that the certification cannot be altogether
dispensed with or its requirements completely disregarded.
542 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

It does not thereby interdict substantial compliance with its

provisions under justifiable circumstances, as the Court finds
in the instant case. (Georgia T. Estel us. Recaredo P. Diego,
Sr., and Recaredo R. Diego, Jr., G.R. No. 174082, January 16,
2012 )

Q: When is belated filing o f a certification against forum

shopping allowed?
A: Yes, belated filing of a certification against forum
shopping is substantial compliance if based on special and
compelling reasons.

Case Law:

Here, the verification and certification of non-forum

shopping was signed by petitioner’s counsel. Upon receipt of
the resolution of the Court of Appeals dismissing her petition
for non-compliance with the rules, petitioner submitted,
together with her motion for reconsideration, a verification
and certification signed by her in compliance with the said
rule. We deem this to be sufficient compliance especially in
view of the merits of the case, which may be considered as
a special circumstance or a compelling reason that would
justify tempering the hard consequence of the procedural
requirement on non-forum shopping. (Krizia Katrina Ty-
De Zuzuarregui vs. The Hon. Joselito C. Villarosa, G.R. No.
183788, April 5, 2010)

Rule on effect of subm ission of false or non-

com pliance w ith th e undertaking: 3
Q: What are th e effects of subm ission of false
certification or non-com pliance w ith th e undertakings
above-m entioned?
A: The submission of a false certification or non-compliance
with any of the undertakings therein shall:
 CHAPTER III 543
RULE 7: PARTS AND CONTENTS OF A PLEADING

1) It shall constitute indirect contempt of court;

2) It shall be without prejudice to the corresponding
administrative and criminal actions.

9) Rule on effects of deliberate and willful forum

shopping:

Q: W hat are th e effects of deliberate and willful forum

shopping?
A: If the acts of the party or his or her counsel clearly
constitute willful and deliberate forum shopping, the same
shall be:
1) A ground for summary dismissal with prejudice;
2) It shall constitute direct contempt; and
3) It shall also cause for administrative sanctions.

Case Law:

Forum shopping is defined as an act of a party, against

whom an adverse judgment or order has been rendered
in one forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special
civil action for certiorari. It may also be 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 decision, xxx It is expressly prohibited xxx
because it trifles with and abuses court processes, degrades
the administration of justice, and congest our court dockets.
A willful and deliberate violation of the rule against forum
shopping is a ground for summary dismissal of the case, and
may also constitute direct contempt. (Estrellla Aduan Orpiano
vs. Spouses Antonio C. Tomas and Myma U. Tomas, G.R. No.
17.8811 ^.January 14, 2013)
544 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: D istinction* betw een non-com pliance w ith th e re­

quirem ents on or subm ission of a defective Verification
and C ertification o f Non-Forum Shopping

Non-compliance o f the Non-compliance o f

requirement or Subm ission
o f defective verification
a) As to verification, non-
compliance therewith
or a defect therein does
not necessarily render
the pleading fatally
defective. The court may
order its subm ission or
correction or act on the
pleading if the attending
circum stances are such
th at strict compliance with
the Rule may be dispensed
with in order th at the ends
of justice may be served
thereby.
b) Verification is deemed
substantially complied
with when one who
has ample knowledge
to swear to the tru th of
the allegations in the
complaint or petition signs
the verification, and when
m atters alleged in the
petition have been made in
good faith or are true and
correct.
Certification on Non-forum
Shopping
a) As to certification against
forum shopping, non-
compliance therewith or
a defect therein, unlike in
verification, is generally not
curable by its subsequent
subm ission or correction
thereof, unless there is a
need to relax the Rule on
the ground of “substantial
compliance” or presence of
“special circum stances or
compelling reasons.”
b) The certification against
forum shopping m ust 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
circum stances, however,
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
complied with the Rule.
 CHAPTER III 545
RULE 7: PARTS AND CONTENTS OF A PLEADING

c) A pleading is verified by c) Finally, the certification

an affidavit of an affiant
duly authorized to sign
said verification. The
authorization of the affiant
to act on behalf of a party,
w hether in the form of a
secretary’s certificate or a
special power of attorney,
s h o u ld be a tta c h e d to th e
pleading (Sec. 4, Rule 7)
against forum shopping
m ust be executed by the
party-pleader, not by his
counsel. If. However, for
reasonable or justifiable
reasons, the party-pleader
is unable to sign, he m ust
execute a Special Power
of Attorney designating
his counsel of record to
sign on his behalf. (Brgy.
Tongonan, Ormoc City vs.
Hon. Apolinario M. Buaya,
G.R. No. 204183, June 20,
2018)

S ample F orm Wo. 5: Certification Against F orum S hopping

VERIFICATION/CERTIFICATION AGAINST
FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES)

CITY OF MANILA ) S.S.

I, JUAN DELA CRUZ, of legal age, Filipino citizen,

m arried, and resident of #1136-A A. Maceda Street,
Sampaloc, Manila, after having been duly sworn 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 and have read the allegations contained therein;
3. 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 com m enced any
other action or proceeding involving th e sam e issu es
in th e Supreme Court, Court o f Appeals, or any other
tribunal or agency;
5. That if I should thereafter learned that a sim ilar
action or proceedings has been filed or is pending before
546 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the Supreme Court, Court of Appeals, or any other

tribunal agency, I hereby undertake to report that fact
w ithin five (5) days therefrom to th e court or agency
wherein th e original pleading and sworn certification
contem plated herein have been filed;
6. I executed th is verification/certification to
a ttest to the truth o f the foregoing facts and to com ply
with th e provisions of Adm. Circular No. 04-94 o f the
Honorable Supreme Court.
IN WITNESS WHEREOF, I have hereunto affixed my
signature th is ___ day of March 2020, in the City of Manila.

JUAN DELA CRUZ

Affiant

SUBSCRIBED AND SWORN to before me t h is ____ day

of March 2020, in the City of Manila, affiant exhibiting to
me his S S S /Passport/D river’s License No. _____________
issued a t _____________o n ______________ .

Doc. N o.____ ;
Page N o.____ ;
Book N o.____ ;
Series of 2020.

6. A dditional C ontents of a Pleading:

Sec. 6, Rule 7 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on additional contents of pleadings. It states that:
“Sec. 6. Contents. — Every pleading stating a
party's claim s or defenses shall, in addition to those
m andated by Section 2, Rule 7, state the following:
(a) Names o f w itn esses who will be presented to
prove a party’s claim or defense;
(b) Summary o f th e w itn esses’ intended
testim onies, provided that the judicial affidavits of
said w itn esses shall be attached to th e pleading and
 CHAPTER III 547
RULE 7: PARTS AND CONTENTS OF A PLEADING

form an integral part thereof. Only w itn esses w hose

judicial affidavits are attached to th e pleading shall
be presented by th e parties during trial. Except if a
party p resen ts m eritorious reasons as basis for th e
adm ission o f additional w itn esses, no other w itn ess
or affidavit shall be heard or adm itted by th e court;
and
(c) Docum entary and object evid en ce in
support o f th e allegations contained in th e pleading.”
(n)

COMMENTS:
Q: W hat are th e ad d itio n al c o n te n ts of th e pleading?
A: Every pleading stating a party’s claims or defenses shall,
in addition to those mandated by Section 2, Rule 7, state the
following:
1) Names of witnesses who will be presented to prove a
party’s claim or defense;
2) 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
3) Documentary and object evidence in support of the
allegations contained in the pleading.
Q: Are d o cu m en tary o r object evidence required to be
a tta c h e d to th e ju d icial affidavit?
A: Yes, under the Judicial Affidavit Rule, the attachments
of documentary or object evidence to the affidavits is required
when there would be a pre-trial or preliminary conference or
the scheduled hearing.
548 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The Court deems it proper to discuss the relevance of

the Judicial Affidavit Rule or A.M. No. 12-8-8-SC, where
documentary or object evidence are required to be attached.
To begin with, the rule is not applicable because such
evidence are required to be attached to a judicial affidavit,
not to a complaint. Moreover, as the rule took effect only on
January 1,2013.
In the Judicial Affidavit Rule, the attachments of
documentaiy or object evidence to the affidavits is required
when there would be a pre-trial or preliminary conference or
the scheduled hearing. As stated earlier, where a defendant
fails to file an answer, the court shall render judgment, either
motu proprio or upon plaintiffs motion, based solely on the
facts alleged in the complaint and limited to what is prayed
for. Thus, where there is no answer, there is no need for a
pre-trial, preliminaiy conference or hearing. Section 2 of the
Judicial Affidavit Rule reads:
Section 2. Submission of Judicial Affidavits and Exhibits
in lieu of direct testimonies. —
a) The parties shall file with the court and serve on the
adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary conference
or the scheduled hearing with respect to motions and
incidents, the following:
1) The judicial affidavits of their witnesses, which
shall take the place of such witnesses’direct testimonies;
and
2) The parties’ documentary or object evidence,
if any, which shall be attached to the judicial affidavits
and marked as Exhibits A, B, C, and so on in the case of
the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.
Should a party or a witness desire to keep the original
document or object evidence in his possession, he may,
after the same has been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit that the copy
or reproduction attached to such affidavit is a faithful copy
 CHAPTER III 549
RULE 7: PARTS AND CONTENTS OF A PLEADING

or reproduction of that original. In addition, the party or

witness shall bring the original document or object evidence
for comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the
latter shall not be admitted. (Fairland Knitcraft Corporation
vs. Arturo Loo Po, G.R. No. 217694, January 27, 2016)

O th er A dditional R eq u irem en ts in th e Pleading:

Professional Tax R eceipt No. and IBP R eceipt No.:

Q: W hat is th e rule regarding Professional Tax R eceipt

Num ber (PTR) an d IBP Official R eceipt Num ber?
A: All pleadings, motions and papers filed in the court
by counsel should bear in addition to counsel’s current
Professional Tax Receipt Number (PTR), counsel’s current IBP
Official Receipt Number indicating its date of issue. (Circular
No. 10, July 24, 1985; Bar Matter No. 287, September 26,
2000)
All pleadings, motions and papers filed in the court
by counsel should bear in addition to counsel’s current
Professional Tax Receipt Number (PTR), counsel’s current IBP
Official Receipt Number indicating its date of issue. (Circular
No. 10, July 24, 1985; Bar Matter No. 287, September 26,
2000)

Q: W hat are th e effects of failure to com ply w ith th e

above req u irem en ts?
A: 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 shall likewise be required to
comply with the requirement within five days from the notice.
Failure to comply with such requirement shall be a ground
for further disciplinary sanction and for contempt of court.
(Circular No. 10, July 24, 1985; Bar Matter No. 287, September
26, 2000)
550 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

b) M andatory C ontinuing Legal Education C ertificate

o f Com pliance or Exem ption:

Q: W hat is th e rule as regards MCLE C ertificate of

Compliance or C ertification of Exem ption?
A: All practicing members of the bar are required to indicate
in all the pleadings filed before the courts or quasi-judicial
bodies, the number and date of issue of their MCLE Certificate
of their Compliance or Certificate of Exemption. (Bar Matter
No. 1922, En Banc Resolution, June 3, 2008)
Q: W hat are th e effects of failure to disclose th e
num ber and date of issue o f th e MCLE C ertificate of th e ir
Compliance or C ertificate o f Exem ption in th e pleading?
A: Under the amendatoiy OCA Circular No. 79-2014
pursuant to the Resolution En Banc of the Supreme Court
dated January 14, 2014, failure to disclose the required
information as to the MCLE Compliance/Exemption would
subject the counsel to:
1) Appropriate penalty and disciplinary action; and
2) The lawyer shall be imposed a fine of P2.000.00
for the first offense, P3.000.00 for the second offense and
P4.000.00 for the third offense;
3) In addition to the fine, counsel may be listed as
a delinquent member of the Bar pursuant to Sec. 2, Rule
13 of Bar Matter No. 850 and its implementing rules and
regulations; and
4) The non-compliant lawyer shall be discharged
from the case and the client/s shall be allowed to secure
the services of a new counsel with the concomitant right to
demand the return of fees already paid to the non-compliant
lawyer.

E lRoll Number of A ttorneys:

Q: What is th e rule on th e Rolls o f A ttorney?
A: On November 12, 2002, the Supreme Court granted
the request of the Board of Governors of the IBP and the
 CHAPTER III 551
RULE 7: PARTS AND CONTENTS OF A PLEADING

Sangguniang Panlalawigan of Ilocos Norte to require all

lawyers to indicate their Roll of Attorneys Number in all papers
and pleadings filed in judicial and quasi-judicial bodies in
addition to the previously required current Professional Tax
Receipt (PTR) and the IBP Official Receipt Number. (Bar Matter
No. 1132, April 1, 2003)

Q: W hat is th e purpose o f in d icatin g th e Roll of A ttorney

in th e pleading?
A: The requirement was meant to protect the public by
making it easier to detect impostors who represent themselves
as members of the bar. Non-compliance with this requirement
has the same effect as the failure to indicate counsel’s IBP
Receipt Number. This requirement is directed only to lawyers
and is not to be construed as precluding a party who is not a
lawyer from signing a pleading himself. (Bar Matter No. 1132,
April 1, 2003)

d) Evidence o f C om petent Id en tity (Bar E xam ination

2008):

Sec. 12 o f th e 2004 N otarial Rules provides for the

rule on the disclosure of the evidence of competent identity in
all pleadings containing a jurat. It states that:
"See. 12. Competent Evidence o f Identity. — The
phrase "com petent evid en ce o f id en tity” refers to th e
id en tification of an individual based on:
(a) at least one current id en tification docum ent
issu ed by an official agency bearing the photograph
and signature o f th e individual; or
(b) th e oath or affirm ation o f one credible
w itn ess n ot privy to th e instrum ent, docum ent or
tran saction who is personally known to th e notary
public who personally know s th e individual, or o f
tw o credible w itn esses neither o f whom is privy to
th e instrum ent, docum ent or transaction who each
personally knows th e individual and show s to the
notary public docum entary publication.’*
552 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: W hat is co m p eten t evidence of id en tity ?
A: Competent evidence of identity” refers to the identification
of an individual based on:
“Competent evidence of identity” refers to the
identification of an individual based on:
1) At least one current identification document issued
by an official agency bearing the photograph and signature of
the individual; or
2) the oath or affirmation of one credible witness not
privy to the instrument, document or transaction who is
personally known to the notary public who personally knows
the individual, or of two credible witnesses neither of whom
is privy to the instrument, document or transaction who each
personally knows the individual and shows to the notary
public documentary publication.

Q: Is th e rule on co m p eten t id en tity strictly followed?

A: The rule on competent evidence of identity may be
relaxed in the interest of justice and compelling reasons.

Case Law:

In Coca-Cola Bottlers vs. De la Cruz, where the verification

was marred only by a glitch in the evidence of the identity of
the affiant, the Court was of the considered view that, in the
interest of justice, the minor defect can be overlooked and
should not defeat the petition.
The reduction in the number of pending cases is laudable,
but if it would be attained by precipitate, if not preposterous,
application of technicalities, justice would not be served. The
law abhors technicalities that impede the cause of justice.
The court’s primary duty is to render or dispense justice, x x
x
What should guide judicial action is the principle that
a party-litigant should be given the fullest opportunity to
 CHAPTER III 553
RULE 7: PARTS AND CONTENTS OF A PLEADING

establish the merits of his complaint or defense rather than

for him to lose life, liberty, honor, or property on technicalities.
The rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict
and rigid application, which would result in technicalities
that tend to frustrate rather than promote substantial
justice, m ust always be eschewed. At this juncture, the Court
reminds all members of the bench and bar of the admonition
in the often-cited case of Alonso v. Villamor. Lawsuits, unlike
duels, Eire not to be won by a rapier’s thrust. Technically,
when it deserts its proper office as an aid to justice and
becomes its great hindrance and chief enemy, deserves scant
consideration from courts. There should be no vested rights
in technicalities.
“While we agree with the observation of respondent that in
the instant Petition, the Verification and Certification against
Forum Shopping attached thereto is defective because the
jurat thereto does not contain the required competent evidence
of identity of the EiffiEmt, petitioner herein, such omission may
be overlooked in the name of judicisd leniency, in order to give
this Court an avenue to dispose of the substEintive issues of
this case.” (Marilyn Victorio-Aquino vs. Pacific Plans, Inc. and
Mamerto A. Marcelo, Jr., G.R. No. 193108, December 10, 2014)
 CHAPTER IV

RULE 8: MANNER OF MAKING ALLEGATIONS

IN THE PLEADINGS

taking Allegation in General (Bar Exam ination

□ 013);

Sec. 1, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. NO. 19-10-20) provides for
the rule on the manner of making allegations in general. It
states that:
"See. 1. In general. — Every pleading shall
contain in a m ethodical and logical form, a plain,
con cise and direct statem en t o f th e ultim ate facts
including th e evidence on which th e party pleading
relies for h is claim or defense, as the case m ay be,
om itting th e statem en t o f mere evidentiary facts.
If a cause o f action or a defense relied on is based
on law, th e pertinent provisions thereof and their
applicability to him shall be clearly and concisely
stated .”
COMMENTS
Q: What is th e m anner of m aking allegation in general
in a pleading?
A: Every pleading shall contain the following:
1) A methodical and logical form, a plain, concise and
direct statement of the ultimate facts;
2) It shall include the evidence on which the party
pleading relies for his or her claim or defense, as the case
may be.
554
 CHAPTER IV 555
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Q: How to m ake an allegation in th e pleading based on

law?
A: If a 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.

2. A lternative C auses o f A ction o r Defenses: *1

Sec. 2, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on alternative causes of action or defenses. It states
that:
"Sec. 2. A lternative cau ses o f action or defenses.
— A party m ay s e t forth two or m ore sta tem en ts o f
a claim or defen se alternatively or hypothetically,
eith er in on e cause o f action or defense or in separate
cau ses o f action or defen ses. When two or more
sta tem en ts are m ade in th e alternative and one o f
th em if m ade independently would be su fficien t, th e
pleading is n o t m ade in su fficien t by th e in su fficiency
o f one or m ore o f th e alternative sta te m e n ts.”

COMMENTS
Q: W hat is th e rule on th e allegation of altern ativ e
causes o f actio n or defenses?
A: A party may set forth two or more statements of a claim
or defense alternatively or hypothetically, either:
1) In one cause of action or defense; or
2) In separate causes of action or defenses.

Q: W hat is th e rule in case one of th e sta te m e n ts is

sufficien t an d th e o th e r is in su fficien t?
A: 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.
556 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

|^ 3 ^ C o n d itio n s Precedent:

Sec. 3, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the manner of alleging condition precedent. It
states that:
“See. 3. Conditions precedent. — In any pleading,
a general averm ent o f th e performance or occurrence
o f all condition precedent shall be sufficient. (3)M

COMMENTS
Q: How to allege a condition preced en t in th e pleading?
A: In any pleading, a general averment of the performance
or occurrence of all conditions precedent shall be sufficient.

4. Capacity:

Sec. 4, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the manner of alleging capacity of a party to sue
or be sued. It states that:
MSec. 4. Capacity. — Facts showing the capacity
of a party to sue or be sued or th e authority o f a party
to sue or be sued in a representative capacity or the
legal existen ce o f an organized association o f persons
that is made a party, m ust be averred.
A party desiring to raise an issue as to th e legal
existen ce o f any party or the capacity o f 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. (4)”

COMMENTS
Q: How to allege capacity or au th o rity to sue or be sued
of a p arty ?
A: 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
 CHAPTER IV 557
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

capacity or the legal existence of an organized association of

persons that is made a party, must be averred.

Case Law:

The MTCC failed to consider the absence of any allegation

in the complaint regarding the authority of Remedios Chan
to institute Civil Case No. 1184 for the Heirs of Yabao. Sec.
4, Rule 8 of the Rules of Court provides that 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 must
be averred in the complaint. The party bringing suit has
the burden of proving the sufficiency of the representative
character that he claims. If a complaint is filed by one who
claims to represent a party as plaintiff but who, in fact, is not
authorized to do so, such complaint is not deemed filed and
the court does not acquire jurisdiction over the complaint.
It bears stressing that an unauthorized complaint does not
produce any legal effect. (Heirs of Paciano Yabao, represented
by Remedios Chan vs. Paz Lentejas Van Der Kolk, G.R. No.
207266, June 25, 2014)
Q: How to object on th e capacity or au th o rity to sue or
be sued of a party?
A: 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.

Sec. 5, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on the manner of alleging fraud, mistake condition
of mind. It states that:
“Sec. 5. Fraud, m istake, condition o f the
mind. — In all averm ents o f fraud or m istake, the
558 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

circu m stan ces c o n stitu tin g fraud or m istake m ust be

stated w ith particularity. M alice, in ten t, know ledge,
or other con d ition o f th e m ind o f a person m ay be
averred generally. (5)”

COMMENTS
Q: How to allege fraud o r m istak e in th e pleading?
A: In all averments of fraud or mistake, the circumstances
constituting fraud or mistake m ust be stated with particularity.

Q: How to allege m alice, in te n t, knowledge, or o th e r

conditio n o f m ind o f a perso n in th e pleading?
A: Malice, intent, knowledge, or other condition of the mind
of a person may be averred generally.

6. Ju d g m en t:

Sec. 6, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the manner of alleging judgment. It states that:
“Sec. 6. Judgm ent. — In pleading a judgm ent or
d ecision o f a dom estic or foreign court, judicial or
quasi-judicial tribunal, or o f a board or officer, it is
su fficien t to aver th e judgm ent or d ecision w ithout
se ttin g forth m atter show ing jurisdiction to render
it. An au th en ticated copy o f th e judgm ent or d ecision
shall be attach ed to th e pleading. (6a)”

COMMENTS
Q: How to allege ju d g m en t in th e pleading?
A: 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.
 CHAPTER IV 559
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Q: W hat is th e req u irem en t in alleging a ju d g m en t in a

pleading?
A: An authenticated copy of the judgment or decision shall
be attached to the pleading.

7. A ction o r Defense Based on D ocum ent (Bar

E xam ination 2017):

Sec. 7, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the manner of making an allegation in case an
action or defense is based on a document. It states that:
MSec. 7. Action or defense based on document.
— W henever an action or defen se is based upon a
w ritten instrum ent or docum ent, th e substance o f
such instrum ent or docum ent shall be s e t forth in the
pleading, and th e original or a copy th ereof shall be
attached to th e pleading as an exhibit, w hich shall be
deem ed to be a part o f the pleading. (7a)n

COMMENTS
Q: W hat is an actionable d ocum ent?
A: An “actionable document” is a written instrument or
document on which an action or defense is founded.

Q: How to m ake an allegation in th e pleading in case an

actio n or defense is based on actionable d ocum ent?
A: Whenever an action or defense is based upon a written
instrument or document, it is necessary to allege:
1) The substance of such instrument or document
shall be set forth in the pleading; and
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.
560 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

| Case L aw ^ J

An “actionable document” is a written instrument or

document on which an action or defense is founded. It may
be pleaded in either of two ways:
(1) by setting forth the substance of such document in
the pleading and attaching the document thereto as an annex,
or (2) by setting forth said document verbatim in the pleading.
(Metropolitan Bank and Trust Company vs. Ley Construction
and Development Corporation and Spouses Manuel Ley and
Janet Ley, G.R. No. 185590, December 3, 2014)
Q: Are th e te rm s and co n d itio n s on th e u se of cred it
card an actionable d o cu m en t?
A: No. The document containing the Terms and Conditions
governing the use of the credit card is not an actionable
document

t t - g g i L a w jJ
In this case, the complaint is an action for collection
of sum of money arising from Ledda’s default in her credit
card obligation with BPI. BPI’s cause of action is primarily
based on Ledda’s: (1) acceptance of the BPI credit card,
(2) usage of the BPI credit card to purchase goods, avail
services and secure cash advances, and (3) non-payment of
the amount due for such credit card transactions, despite
demands. In other words, BPI’s cause of action is not based
only on the document containing the Terms and Conditions
accompanying the issuance of the BPI credit card in favor of
Ledda. Therefore, the document containing the Terms and
Conditions governing the use of the BPI credit card is not an
actionable document contemplated in Sec. 7, Rule 8 of the
1997 Rules of Civil Procedure. As such, it is not required by
the Rules to be set forth in and attached to the complaint.
(Anita A. Ledda vs. Bank of the Philippine Islands, G.R. No.
200868, November 21, 2012)
Q: W hat Is th e effect o f failure to a tta c h th e d o cum ents
in th e pleading b u t th e p arty h ad th e o p p o rtu n ity to
 CHAPTER IV 561
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

exam ine th e said docu m en t and conducted a cross-

exam ination?
A: The failure of the party to attach in the Complaint the
document but had the opportunity to examine the said
documents and conducted a cross-examination is not fatal to
its cause.

Case Law:
The failure of Tokio Marine to attach in the Complaint the
contract of insurance between the insurer and the insured is
not fatal to its cause.
Unlike in the Malayan case, which was used as basis by
Keihin-Everett, Tokio Marine presented as evidence not only
the Honda Trading Insurance Policy, but also the Subrogation
Receipt evidencing that it paid Honda Trading. During the
trial, Keihin-Everett even had the opportunity to examine
the said documents and conducted a cross-examination of
the said Contract of Insurance. By presenting the insurance
policy constitutive of the insurance relationship of the parties,
Tokio Marine was able to confirm its legal right to recover
as subrogee of Honda Trading. (Keihin-Everett Forwarding
Co., Inc. vs. Tokio Marine Malayan Insurance Co., Inc. and
Sunfreight Forwarders and Customs Brokerage Inc., G.R. No.
212107, January 28, 2019)
S ample F orm No. 1; Manner of Makmq AuJQAHQHfi_BAaKP_QB_A
Document
REPUBLIC OF THE PHILIPPINES
National Capital Judicial Region
METROPOLITAN TRIAL COURT
City of Manila
Branch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO._______________
For: Collection of Sum of Money
MR. Y,
Defendant,
X x
562 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMPLAINT
COMES NOW, the plaintiff, and u n to this Honorable
Court, m ost respectfully avers:
1. That plaintiff is of legal age, Filipino citizen, with
postal address a t #1136-A A. M aceda Street, Sam paloc,
Manila;
2. T hat defendant Y, of legal age, Filipino citizen,
with postal address a t No. 20 Evangelista Street, Pasig
City, w here they m ay be served with sum m ons an d other
processes by th is Honorable Court;
3. T hat sometim e in J u n e 2011, defendant obtained a
loan from the plaintiff in the am ount of P100,000.00, with
the prom ise to pay it w ithin six (6) m onths from th e said
date, w ith an agreed in terest of five percent (5%) per m onth
as evidenced by a prom issory note w hich is hereto attached
a s Annex “A” hereof. Portion of the prom issory note is hereby
reproduced, to wit:
“J u n e 4, 2011
I prom ise to pay Mr. X the am ount of P I 00,000.00 plus
in terest of 5% per m onth w ithin six (6) m onths from the
execution of th is note.
Mr. Y”
4. T hat after the lapse of the period agreed upon,
defendant failed to pay th e am ount of the loan an d its
interest;
5. T hat plaintiff th rough his counsel sent a dem and
letter to the defendants dem anding for the paym ent of the
loaned am ount of P I 00,000.00 plus in terest of 5% for six (6)
m onths. Copy of the dem and letter personally served to the
defendants is hereto attach ed as Annex “B” hereof;
6. That despite repeated dem ands orally and in
writing, defendants refused a n d continuously failing to pay
the am ount of P I 00,000.00 and its in terest to th e dam age
and prejudice of herein plaintiff;
7. T hat as a result of the unw arranted and unjustifiable
refusal of the defendants to pay the plaintiff th e said am ount
and interest, he suffered sleepless nights, serious anxiety in
which he should be aw arded the am o u n t of P100,000.00 as
 CHAPTER IV 563
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

m oral dam ages, and to set a n example to the public plaintiff

should be awarded exemplary damages in the am ount of
P100,000.00.
WHEREFORE, prem ises considered, it is most
respectfully prayed unto this Honorable Court that, after
hearing, judgm ent be rendered as follows:
1. Ordering the defendants, to pay the plaintiff the
am ount of P100,000.00 representing the loaned am ount;
2. Ordering the defendants to pay the plaintiff an
interest of 5% of the total am ount of P100,000.00 for sue (6)
m onths as agreed upon;
3. Ordering the defendants to pay the plaintiff the
am ount of P100,000.00 as moral damages, and P100,000.00
as exemplary damages; 4. Ordering the defendants to pay
the cost of suit.
Manila for Pasig City, M arch__ 2020.

TLLM & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 89329816/2-26-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 521-6137

VERIFICATION/ CERTIFICATION OF FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES)
CITY OF MANILA ) 8.S.
I, MR. X, of legal age, Filipino citizen, m arried, and
resident of #1136-A A. Maceda Street, Sampaloc, Manila,
after having been duly sworn to in accordance with law do
hereby depose and say:
564 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1. That I am the plaintiff in th e above-entitled case;

2. That I have caused th e preparation of the foregoing
Com plaint and have read the allegations contained therein;
3. The allegations in th e said com plaint are tru e and
correct of my own knowledge and au thentic records;
4 The pleading is not filed to h a ra ss, cause unnecessary
delay, or needlessly increase the cost of litigation; and
5. The factual allegations therein have evidentiary
support or, specifically so identified, will likewise have
evidentiary support after reasonable opportunity for
discovery.
6. I hereby certify th a t I have not com m enced any
other action or proceeding involving the sam e issu es in the
Suprem e Court, Court of Appeals, or any other tribunal or
agency;
7. That if I should thereafter learned th a t a sim ilar
action or proceedings h a s been filed or is pending before
the Suprem e Court, C ourt of Appeals, or any other tribunal
agency, I hereby u n d ertake to report th a t fact w ithin five (5)
days therefrom to the court or agency w herein the original
pleading an d sw orn certification contem plated herein have
been filed;
8. I executed th is verification/certification to atte st
to the tru th of the foregoing facts and to comply with the
provisions of Adm. C ircular No. 04-94 of the Honorable
Suprem e Court.
IN WITNESS WHEREOF, I have hereunto affixed my
signature t h is ___ day of M arch 2020, in the City of Manila.
MR. X

SUBSCRIBED AND SWORN to before me t h i s ____ day

of M arch 2020, in the City of Manila, affiant exhibiting to me
his S S S /P assp o rt/D riv er’s License. N o.___________________
issued a t _____________ o n _______________.

Doc. N o .____ ;
Page No._____;
Book N o .____ ;
Series of 2020.
 CHAPTER IV 565
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

| 8. H
H ow to C ontest an A ctionable D ocum ent:

Sec. 8, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on how to contest an allegation based on a document.
It states that:
“Sec. 8. How to con test such documents.
— When an action or defense is founded upon a
w ritten instrum ent, copied in or attached to the
corresponding pleading as provided in th e preceding
Section, th e genuineness and due execu tion o f the
instrum ent shall be deem ed adm itted u n less the
adverse party, under oath, specifically denies them ,
and se ts forth what he or sh e claim s to be th e facts;
but th e requirem ent o f an oath does not apply when
th e adverse party does not appear to be a party to the
instrum ent or when com pliance with an order for an
inspection o f the original instrum ent is refused.”

COMMENTS
Q: How to object on th e allegation based on actionable
docum ent?
A: When an action or defense is founded upon a written
instrument, 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:
1) The adverse party, under oath specifically denies
them; and
2) Sets forth what he or she claims to be the fact.

In Permanent Savings & Loan Bank vs. Velarde

(Permanent Savings and Loan Bank), citing the earlier case of
Songco vs. Sellner, the Court expounded on how to deny the
genuineness and due execution of an actionable document,
viz.:
566 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

This means that the defendant m ust declare under oath

that he did not sign the document or that it is otherwise false
or fabricated. Neither does the statement of the answer to
the effect that the instrument was procured by fraudulent
representation raise any issue as to its genuineness or due
execution. On the contrary, such a plea is an admission both
of the genuineness and due execution thereof, since it seeks
to avoid the instrument upon a ground not affecting either.
To add, Sec. 8, Rule 8 of the Rules further requires that
the defendant “sets forth what he claims to be the facts,”
which requirement, likewise, remains absent from the Answer
in this case.
Thus, with said pleading failing to comply with the
“specific denial under oath” requirement under Sec. 8, Rule
8 of the Rules, the proper conclusion, as arrived at by the CA,
is that petitioners had impliedly admitted the due execution
and genuineness of the documents evidencing their loan
obligation to respondent. (Go Tong Electrical Supply Co.,
Inc. and George C. Go vs. BPI Family Savings Bank, Inc.
substituted by Philippine Investment One [SPV-AMC], Inc.,
G.R. No. 187487, June 29, 2015)
Q: W hen can th e gen u in en ess an d due execution of an
actionable d o cu m en t n o t deem ed ad m itted even if th e
pleading is n o t u n d e r o a th ?
A: The requirement of an oath in a pleading does not apply
when:
1) The adverse party does not appear to be a party to
the instrument; or
2) When compliance with an order for an inspection of
the original instrument is refused.

Q: W hat is th e effect o f failure o f th e adverse p arty to

deny u n d er o a th th e g en u in en ess an d due execution of
th e actionable d o cu m en t?
A: The adverse party is deemed to admit the genuineness
and due execution of the actionable document unless he
specifically denies them under oath, and sets forth what he
claims to be the facts
 CHAPTER IV 567
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

|_ J 2 a s e J ^ w ^
In the case of a written instrument or document upon
which an action or defense is based, which is also known as
the actionable document, the pleader of such document is
required either to set forth the substance of such instrument
or document in the pleading, and to attach the original or a
copy thereof to the pleading as an exhibit, which shall then
be deemed to be a part of the pleading, or to set forth a copy
in the pleading. The adverse party is deemed to admit the
genuineness and due execution of the actionable document
unless he specifically denies them under oath, and sets forth
what he 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.
(Fernando Medical Enterprises, Inc. vs. Wesleyan University
Philippines, Inc., G.R. No. 207970, January 20, 2016)
Q: W hat are th e exceptions to th e above rule?
A: The requirement of an oath does not apply when:
1) The adverse party does not appear to be a party to
the instrument; or
2) When compliance with an order for an inspection of
the original instrument is refused.

9. Official D ocum ent o r Act:

Sec. 9, Rule 8 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on how to allege official document or act in the
pleading. It states that:
"Sec. 9 . O fficial docum ent or act. — In pleading
an official docum ent or official act, it is sufficient
to aver th at th e docum ent was issued or th e act was
done in com pliance w ith law. (9)”
568 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS
Q: How to alleged official d o cu m en t or official a c t in a
pleading?
A: In pleading an official document or official act, it is
sufficient to aver that the document was issued or the act
was done in compliance with law.

10. Specific Denial:

Sec. 10, Rule 8 o f th e 2019 A m endm ent to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on specific denial of an allegation in the pleading. It
states that:
“Sec. 10. S pecific denial. — A defendant m ust
sp ecify each m aterial allegation o f fact th e truth
o f w hich he or she d oes not adm it and, w henever
practicable, shall se t forth th e substance o f th e
m atters upon w hich he or sh e relies to support h is or
her denial. Where a defendant d esires to deny only a
part o f an averm ent, he or sh e shall sp ecify so m uch
o f it as is true and m aterial and shall deny only th e
rem ainder. Where a defendant is w ithout know ledge
or inform ation su fficien t to form a b elief as to th e
truth o f a m aterial averm ent m ade to th e com plaint,
he or sh e shall so sta te , and th is shall have th e effect
o f a denial. (10a)n

COMMENTS
Q: How to m ake an absolute denial o f a m aterial
allegation in th e pleading?
A: 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 or her denial. (Absolute
denial)
 CHAPTER IV 569
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Q: How to m ake a p artial denial o f a m aterial allegation

in th e pleading?
A: Where a defendant desires to deny only a part of an
averment, he or she shall specify so much of it as is true and
material and shall deny only the remainder. (Partial denial)

Q: How to m ake a denial for w ant of knowledge of a

m aterial allegation in th e pleading u n d er th e new rules?
A: Where a defendant is without knowledge or information
sufficient to form a belief as to the truth of a material averment
made to the complaint, he or she shall so state, and this shall
have the effect of a denial. (Denial by disavowal o f knowledge)

Case Law:

Under Sec. 10, Rule 8 of the Rules of Court, a specific

denial of an allegation of the complaint may be made in any
of the three ways: (a) a defendant specifies each material
allegation of the 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; (b) a
defendant who desires to deny only a part of an averment
specifies so much of it as is true and material and denies only
the remainder; and (c) a defendant who is without knowledge
or information sufficient to form a belief as to the truth of
the material averments made in the complaint states so,
which has the effect of denial. (Republic of the Philippines vs.
Sandiganbayan, G.R. No. 166859, April 12, 2011)

11. A llegations n o t Specifically Denied Deemed

A dm itted:

Sec. 11, Rule 8 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on defective denial of allegation in the pleading. It
states that:
“S ec. 11. A llegation s not sp ecifica lly denied
deem ed ad m itted . — Material averm ents in a pleading
570 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

assertin g a claim or claim s, other than th o se as to

th e am ount o f unliquidated dam ages, shall be deem ed
adm itted w hen not sp ecifically denied. (11a)”

COMMENTS
Q: W hat is th e effect in case th e m aterial av erm en t in
th e pleading ii n o t specifically den ied ?
A: 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.*1

12. A ffirm ative Defenses:

Sec. 12, Rule 8 of th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on affirmative defenses that may be raised in the
answer. It states that:
wSec. 12. A ffirm ative defenses. — (a) A defendant
shall raise h is or her affirm ative d efen ses in h is or
her answer, w hich shall be lim ited to th e reasons se t
forth under S ection 5(b), Rule 6 , and th e following
grounds:
1) That th e court has no ju risdiction over
th e person o f th e defending party;
2) That ven u e is im properly laid;
3) That th e p lain tiff has no legal capacity
to sue;
4) That th e pleading assertin g th e claim
sta te s no cause o f action; and
5) That a con d ition precedent for filing
th e claim has n ot been com plied w ith.
(b) Failure to raise th e affirm ative d efen ses
at th e earliest opportunity shall co n stitu te a waiver
thereof.
(c) The court shall motu proprio resolve th e
above affirm ative d efen ses w ithin th irty (30) calendar
days from th e filing o f th e answer.
 CHAPTER IV 571
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

(d) As to th e other affirm ative d efen ses under

th e first paragraph o f Section 5 (b), Rule 6, th e court
m ay conduct a sum m ary hearing w ithin fifteen (15)
calendar days from th e filing o f th e answer. Such
affirm ative d efen ses shall be resolved by th e court
w ithin thirty (30) calendar days from th e term ination
o f th e sum m ary hearing.
(e) Affirmative defenses, if denied, shall not be
th e subject o f a m otion for reconsideration or petition
for certiorari, prohibition or m andamus, but may
be am ong th e m atters to be raised on appeal after a
judgm ent on the m erits. (n)”

COMMENTS:
Q: W hat are th e o th er affirm ative defenses w hich can be
raised in th e answ er?
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.

a) The co u rt has no ju risd ictio n o

o f th e defendant:

Q: How can th e co u rt acquire ju risd ictio n over th e

person o f th e defendant?
A: The court acquires jurisdiction over the person of the
defendant either through service of summons or through
voluntary appearance in court and submission to its authority.
572 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The fundamental rule is that jurisdiction over a

defendant in a civil case is acquired either through service
of summons or through voluntary appearance in court and
submission to its authority. If a defendant has not been
properly summoned, the court acquires no jurisdiction over
its person, and a judgment rendered against it is null and
void. (Planters Development Bank vs. Julie Chandumal, G.R.
No. 195619, September5, 2012)
Q: W hat are th e effects o f invalid service of sum m ons?
A: The effects of invalid service of summons is that the court
did not acquire jurisdiction over the person of the defendant
and the judgment is null and void.

Case Law:
As a rule, if defendants have not been validly summoned,
the court acquires no jurisdiction over their person, and the
judgment against them shall be null and void. (Sagana vs.
Francisco, G.R. No. 161952, October 2, 2009)
Q: Will lack o f ju risd ic tio n over th e d efen d an t th ro u g h
defective service of sum m ons a ground for a n n u lm en t of
ju d g m en t?
A: Yes, lack of jurisdiction being a valid ground for
annulment of judgments, circumstances that negate the
court’s acquisition of jurisdiction including defective service
of summons are causes for an action for annulment of
judgments.

Case Law:
An action for annulment of judgment may be based on
only two grounds: 1) extrinsic fraud; and 2) lack ofjurisdiction.
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for new
trial or petition for relief.
 CHAPTER IV 573
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Lack ofjurisdiction being a valid ground for annulment of

judgments, circumstances that negate the court’s acquisition
of jurisdiction including defective service of summons are
causes for an action for annulment of judgments.
However, this court had an occasion to say that an action
for annulment of judgment “may not be invoked (1) where the
party has availed himself of the remedy of new trial, appeal,
petition for relief, or other appropriate remedy and lost; or (2)
where he has failed to avail himself of those remedies through
his own fault or negligence.” Thus, an action for annulment
of judgment is not always readily available even if there
are causes for annulling a judgment. (Aurora N. De Pedro
vs. Romasan Development Corporation, G.R. No. 194751,
November 26, 2014)
Q: Where to raise th e objection to th e ju risd ictio n over
th e person th e d efendant?
A: Objection to the jurisdiction over the person of the
defendant may be raised as an affirmative defense in the
answer.

Case Law:
Objections to jurisdiction over the person of the defendant
may be made initially either in a motion to dismiss or in the
answer as an affirmative defense. (Calimlim vs. Ramirez, 118
SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430)

Q: W hat is th e effect if th e case was filed on a wrong

venue?
A: In case of improper venue the case may be dismissed
without prejudice.

I L g g i LaunJ
In this case, it is undisputed that petitioner’s action was
one for collection of sum of money in an amount .that falls
574 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

within the exclusive jurisdiction of the RTC. Since the lease

contract already provided that all actions or cases involving
the breach thereof should be filed with the RTC of Pasay City,
and that petitioner’s complaint purporting the said breach
fell within the RTC’s exclusive original jurisdiction, the latter
should have then followed the contractual stipulation and
filed its complaint before the RTC of Pasay City. However,
it is undeniable that petitioner filed its complaint with the
Valenzuela-RTC; hence, the same is clearly dismissible on
the ground of improper venue, without prejudice, however,
to its refiling in the proper court. (Ley Construction and
Development Corporation vs. Marvin Medel Sedano, G.R. No.
222711, August 23, 2017)

Q: Can th e co u rt dism iss th e case m otu proprio based

on im proper venue?
A: No. court cannot motu proprio dismiss the case based on
improper venue since it is not one of the grounds mentioned
in Sec. 1, Rule 9, and can be waived for failure to object.

|| Case L a w ^

A court cannot motu proprio dismiss a complaint on

the ground of improper venue since improper venue may be
waived for failure to object it. (Dacoycoy vs. IAC, 195 SCRA
641 [1991])
Q: W hat is th e effect if objection on im proper venue is
n o t raised in th e answ er?
A: Objection on improper venue deemed waived if not raised
in the answer.

Case Law:

We underscore that in civil proceedings, venue is

procedural, not jurisdictional, and may be waived by the
defendant if not seasonably raised either in a motion to
dismiss or in the answer. Section 1, Rule 9 of the Rules of
Court thus expressly stipulates that defenses and objections
 CHAPTER IV 575
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

not pleaded either in a motion to dismiss or in the answer

are deemed waived. As it relates to the place of trial, indeed,
venue is meant to provide convenience to the parties, rather
than to restrict their access to the courts. In other words,
unless the defendant seasonably objects, any action may be
tried by a court despite its being the improper venue. BPI
Family Savings Bank, Inc. vs. Spouses Benedicto & Teresita
Yujuico, G.R. No. 175796, July 22, 2015)

c) The p lain tiff h as no le *1

Q: Who are th e persons who have no legal cap acity to

sue
A: The following persons have no legal capacity to sue, to
wit:
1) When the plaintiff is not in full exercise of his civil
rights (i.e., those suffering from civil interdiction);
2) If the plaintiff does not have the character or
representation that he claims.
3) Foreign corporation doing business in the Philippines
without securing a license;
4) Minority;
5) Insanity;
6) Lack of juridical personality; and
7) Incompetence.

Q: W hat is th e effect if th e perso n who filed th e case has

no legal cap acity to su e?
A: A complaint filed by one who claims to represent a party
as plaintiff but who, in fact, is not authorized to do so, such
complaint is not deemed filed and the court does not acquire
jurisdiction over the complaint, and the action should be
dismissed.
576 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

|| Case Lawj^J

The MTCC failed to consider the absence of any allegation

in the complaint regarding the authority of Remedios Chan to
institute Civil Case No. 1184 for the Heirs of Yabao. Section
4, Rule 8 of the Rules of Court provides that 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 must
be averred in the complaint. The party bringing suit has
the burden of proving the sufficiency of the representative
character that he claims. If a complaint is filed by one who
claims to represent a party as plaintiff but who, in fact, is not
authorized to do so, such complaint is not deemed filed and
the court does not acquire jurisdiction over the complaint.
It bears stressing that an unauthorized complaint does not
produce any legal effect. (Heirs ofPaciano Yabao, Represented
by Remedios Chan vs. Paz Lentejas Van Der Kolk, G.R. No.
207266, June 25, 2014)

d) The pleadings assertin g a claim fails to sta te

a cause of action:

Q: W hat is th e effect if th e com plaint fails to s ta te a

cause of actio n ?
A: In case the pleading fails to state a cause of action, the
complaint shall be dismissed.*3

Case Law:

One of the grounds for the dismissal of a complaint is

the failure of the pleading asserting the claim to state a cause
of action. The elements of a cause of action are: (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 the defendant to the plaintiff for which the latter
may maintain an action for recovery of damages or other
 CHAPTER IV 577
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

appropriate relief. (Butuan Development Corporation vs. The

21st Division of the Hon. Court o f Appeals, Max Arriola, Jr., De
Oro Resources Inc., and Louie A. Libarios, G.R. No. 197358,
April 5, 2017)
Q: D istin ctio n s betw een failure to s ta te a cause o f actio n
(Sec. 12[8], Rule 8) an d lack o f cause of actio n (Sec. 1,
Rule 33)? (Bar E xam ination 2019)

Failure to sta te a cause o f Lack o f cause o f action

action
a) Failure to state a cause of a) A dem urrer is filed “after
action u n d e r the Sec. 12, the plaintiff h a s completed
Rule 8 is m ade “by raising the presentation of his
the ground a s a n affirmative evidence/rested its case.”
defense in the answ er.”
b) Failure to state a cause b) Lack or insufficiency
of action is determ ined of cause of action is
simply on the basis of the predom inantly based on the
allegations in the com plaint appreciation of evidence.
of the plaintiff.
c) Failure to state a cause of c) W hen issu es not raised
action m ay still be curable by the pleadings are tried
by an am endm ent of the w ith the express or implied
an sw er/ pleading by leave consent of the parties,
of court (Sec. 3, Rule 10). they shall be treated in all
respects as if they had been
raised in the pleadings.
No am endm ent of such
pleadings deemed am ended
is necessarv to cause them
to conform to the evidence.
(Sec. 5, Rule 10)
d) Affirmative defenses, if d) If a dem urrer is denied, the
denied, shall not be the defendant shall have the
subject of a motion for right to present evidence.
reconsideration or petition
for certiorari, prohibition
or m andam us, b u t may
be am ong the m atters to
be raised on appeal after
a judgm ent on the m erits.
(Sec. 12, Rule 8)
578 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

e) If the affirmative defense of e) If a dem urrer to evidence

failure to state a cause of
action has been granted,
the dism issal is without
prejudice to the refiling of
the action. (Sec. 13, Rule
15)
f) The ground of failure to f)
state a cause o f action may
be invoked in an answ er as
an affirmative defense in
the pleading. (Sec. 12, Rule
8)
is granted, the dism issal is
with prejudice, as the same
is considered a judgm ent on
the m erits of the case, hence,
the remedy of the plaintiff
is to appeal from such
judgm ent. Consequently,
on appeal, if the judgm ent
was reversed, the defendant
shall be deemed to have
waived his right to present
his evidence.
The ground of insufficiency
o f evidence may be invoked
in a motion for dem urrer
to evidence (Rule 33), in a
motion for reconsideration
(Rule 37) or in an appeal
m em orandum .

T hat a condition preced en t for th e filing of th e

C actio n has n o t been com plied with:_____________

to th e barangay:

Q: W hat is th e natu re of th e referral of th e case to th e

barangay for conciliation?
A: All disputes are subject to Barangay conciliation
pursuant to the Revised Katarungang Pambarangay Law
(formerly P.D. 1508, repealed and now replaced by Secs. 399-
422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book
IV, R.A. 7160, otherwise known as the Local Government
Code of 1991), and prior recourse thereto is a pre-condition
before filing a complaint in court or any government offices.
 CHAPTER IV 579
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Q: W hat is th e rem edy o f th e defending p a rty in case

th e re is failure to com ply w ith barangay conciliation?
A: Under the Sec. 12, Rule 8 of the 2019 amendments to the
1997 Rules on Civil Procedure, the defending party may file
his responsive pleading and raise the issue of lack of referral
of the case to the barangay as an affirmative defense on the
ground that there is failure to comply with the condition
precedent of barangay conciliation.

Q: W hat is th e effect o f th e g ran tin g of th e affirm ative

defense of lack o f barangay co n ciliation?
A: The case may be dismissed for failure to comply with the
condition precedent of lack of barangay conciliation without
prejudice to the refiling of the action since it is not one of
the grounds mentioned in Sec. 13, of Rule 15 that bars the
refiling of the action.

l^ j^ E x h a u s tio n ^ fa d m in is tra tiv e ^ e m e d ies: ||

Q: W hat is th e purpose o f ex h au stio n of ad m in istrativ e

rem edies.
A: The thrust of the rule on exhaustion of administrative
remedies is that courts m ust allow administrative agencies to
carry out their functions and discharge their responsibilities
within the specialized areas of their respective competence.
To this end, administrative agencies are afforded a chance
to correct any previous error committed in its forum.
Furthermore, reasons of law, comity, and convenience prevent
the courts from entertaining cases proper for determination
by administrative agencies. (Pio Delos Reyes [Deceased],
Represented by Heirs Fidel Delos Reyes, et al. vs. Honorable
Waldo Q. Flores, G.R. No. 168726, March 5, 2010)

Q: Can th e d o ctrin e o f ex h au stio n of adm in istrativ e

rem edies be w aived?
A: Yes. Failure to invoke doctrine of exhaustion of
administrative remedies party is estopped from invoking
these doctrines as grounds for dismissal.
580 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

However, failure to observe the doctrine of exhaustion

of administrative remedies does not affect the court’s
jurisdiction. Thus, the doctrine may be waived.
X X X X.

However, for reasons of equity, in cases where jurisdiction

is lacking, this Court has ruled that failure to raise the issue
of non-compliance with the doctrine of primary administrative
jurisdiction at an opportune time may bar a subsequent filing
of a motion to dismiss based on that ground by way of laches.
Where a party participated in the proceedings and the
issue of non-compliance was raised only as an afterthought at
the final stage of appeal, the party invoking it may be estopped
from doing so. Petitioner does not deny that the issue of non-
compliance with these two (2) doctrines was only raised in
this Court. Thus, in failing to invoke these contentions before
the Regional Trial Court, it is estopped from invoking these
doctrines as grounds for dismissal. (Republic of the Philippines
vs. Michelle Soriano Gallo, G.R. No. 207074, January 17, 2018)

3) E arnest efforts tow ards am icable settlem en t

betw een m em bers of th e sam e family:

Q: W hat is th e substantive basis of th e requirem ent of

earn est efforts tow ards a com prom ise agreem ent betw een
th e m em bers of th e sam e fam ily?
A: Art. 151 of the Family Code is the substantive basis on
the requirement of earnest efforts towards a compromise
between members of the same family.

Substantive Basis:

Art. 151 of th e Fam ily Code provides for the requirement

of earnest efforts towards a compromise between members of
the same family. It states that:
 CHAPTER IV 581
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

“Art. 151. No suit between the members of the

same family shall prosper unless it should appear
from the verified complaint or petition that earnest
efforts towards a compromise have been made, but
the same have failed. If its shown that no such efforts
were in fact made, the case must be dismissed.’*

Q: W hat is th e effect o f failure to allege e a rn e st efforts

to com prom ise betw een m em bers of th e fam ily in th e
com p lain t?
A: Failure to allege in the complaint that earnest efforts at
a compromise has been made but had failed is not one of the
exceptions. Upon such failure, the defense is deemed waived.

The time frame indicates that thereafter, the motion to

dismiss based on the absence of the condition precedent is
barred. It is so inferable from the opening sentence of Section
1 of Rule 9 stating that defense and objections not pleaded
either in a motion to dismiss or in the answer are deemed
waived. There are, as ju st noted, only four exceptions to this
Rule, namely, lack of jurisdiction over the subject matter; litis
pendentia; res judicata; and prescription of action. Failure to
allege in the complaint that earnest efforts at a compromise
has been made but had failed is not one of the exceptions.
Upon such failure, the defense is deemed waived. (Heirs of
Dr. Mariano Fains, Sr., Represented by Their Co-Heirs and
Attomeys-In-Fact Mercedes A. Fains and Nelly Favisvillafuerte
vs. Juana Gonzales, Her Son Mariano G. Favis, Ma. Theresa
Joana D. Favis, James Mark D. Favis, All Minors Represented
Herein by Their Parents, Sps. Mariano Favis and Larcelitad
Favis, G.R. No. 185922, January 15, 2014)

Q: W hat is th e effect o f referral o f th e case before th e

barangay as regards th e req u irem en t of com pliance w ith
u n d er Art. 151 o f th e Fam ily Code?
A: The allegation in the complaint, as well as the certification
to file action by the barangay chairman, is sufficient
compliance with Art. 151 of the Family Code.
582 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The petitioners were able to comply with the requirements

of Art. 151 of the Family Code because they alleged in their
complaint that they had initiated a proceeding against
the respondent for unlawful detainer in the Katarungang
Pambarangay, in compliance with P.D. 1508; and that, after
due proceedings, no amicable settlement was arrived at,
resulting in the barangay chairman’s issuance of a certificate
to file action. The Court rules th a t such allegation in th e
com plaint, as well as th e certificatio n to file actio n by
th e b a r a n g a y chairm an, is sufficient com pliance w ith
Art. 151 o f th e Fam ily Code. It bears stressing that under
Sec. 412(a) of R.A. No. 7160, no complaint involving any
matter within the authority of the Lupon shall be instituted
or filed directly in court for adjudication unless there has
been a confrontation between the parties and no settlement
was reached. (April Martinez, Fritz Daniel Martinez and Maria
Olivia Martinez vs. Rodolfo G. Martinez, G.R. No. 162084, June
28, 2005)
Q: W hat are th e in stan ces w here no com prom ise is
allowed?
A: Art. 2035 o f th e New Civil Code provides that “No
compromise upon the following questions shall be valid”:
1) The civil status of persons;
2) The validity of marriage or legal separation;
3) Any ground for legal separation;
4) Future support;
5) The jurisdiction of the court;
6) Future legitime;

4) C ertification of non-forum shopping:

Q: W hat is th e effect o f non-com pliance of condition

preced en t of certificatio n against forum shopping?
 CHAPTER IV 583
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

A: Non-compliance is a ground for the dismissal of the

action.

The Rules of Court provide that a petition for certiorari

must be verified and accompanied by a sworn certification of
non-forum shopping. Failure to comply with these mandatory
requirements shall be sufficient ground for the dismissal
of the petition. Considering that only 3 of the 228 named
petitioners signed the requirement, the CA dismissed the
case against them, as they did not execute a Verification and
Certification against Forum Shopping. (Vivian T. Ramirez, et
al. vs. Mar Fishing Co., Inc., Miramar Fishing Co., Inc., Robert
Buehs and Jerome Spitz, G.R. No. 168208, June 13, 2012)

Q: W hat is th e th ru s t o f p ay m en t o f docket fees?

A: Payment of docket fees vests the court with jurisdiction
over the subject matter or nature of the action.

Case Law:

It is a settled rule in this jurisdiction that when an action

is filed in court, the complaint m ust be accompanied by the
payment of the requisite docket and filing fees. 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. (Ceferina De Ungria vs. The Honorable Court of
Appeals, G.R. No. 165777, July 25, 2011)

6) T ender o f p ay m en t in case o f consignation:

Q: W hat is th e su b stan tiv e basis of th e condition

p reced en t o f te n d e r o f p ay m en t m u st be com plied w ith?
584 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: Art. 1 2 5 6 o f th e N ew C ivil C od e provides for the

requirement of tender of payment. It states that:
"Art. 1256. If the creditor to whom tender of
paym ent has been made refuses w ithout ju st cause
to accept it, the debtor shall be released from
responsibility by th e consignation o f th e thing or

7) Demand to vacate and paym ent of rentals

or reasonable com pensation for th e use and
occupation of th e prem ises:__________________

Q: What is th e substantive basis o f th e condition

preced en t of dem and to vacate and pay ren tal in case of
unlawful detain er?
A: Sec. 2, Rule 70 provides for the basis of demand to
vacate the premises and pay rental arrearages or reasonable
compensation for the use of the premises.

Procedural Basis:

Sec. 2, Rule 70 of th e 1997 Rules of Civil Procedure

provides for the rule on the requirement on the lessor of
giving demand to pay and vacate before proceeding against
the lessee. It provides that:
"Sec. 2. Lessor to proceed a g a in st lessee only
a fter dem and. — Unless otherw ise stipulated, such
action by th e lessor shall be com m enced only after
demand to pay or com ply with the conditions of
th e lease and to vacate is made upon th e lessee, or
by serving written n otice o f such demand upon the
person found on th e prem ises, or by posting such
n otice on the prem ises if no person be found thereon,
and th e lessee fails to com ply therew ith after fifteen
(15) days in th e case o f land or five (5) days in the
case o f buildings.n
 CHAPTER IV 585
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

8) A rbitration:

Q: W hat is a rb itra tio n ?

A: Arbitration is a mode of settling disputes between parties.
Like many alternative dispute resolution processes, it is a
product of the meeting of minds of parties submitting a pre­
defined set of disputes. They agree among themselves to a
process of dispute resolution that avoids extended litigation.
The state adopts a policy in favor of arbitration under Section
2 of Republic Act No. 9285. (Bases Conversion Development
Authority vs. DMCI Project Developers, Inc. [G.R. No. 173170]
North Luzon Railways Corporation vs. DMCI Project Developers,
Inc., G.R. No. 173137, January 11, 2016)

Q: W hat is th e effect in case o f failure to a rb itra te ?

A: If there is an such agreement, the court shall issue an
order summarily directing the parties to proceed with the
arbitration in accordance with the terms thereof; otherwise,
the proceeding shall be dismissed.

|^ C a se ^ L a w jJ

R.A. 876 explicitly the court’s authority only to pass the

issue of whether there is or there is no agreement in writing
providing for arbitration. If there Is such agreement, the
court shall issue an order summarily directing the parties
to proceed with the arbitration in accordance with the terms
thereof; otherwise, the proceeding shall be dismissed. (Aboitiz
Transport System Corp., et. al. vs. Gothong Lines, Inc., et al,
G.R. No. 198228, July 18, 2014)

9) P rior re so rt to an altern ativ e d isp u te

Q: W hat is th e su b stan tiv e b asis o f th e condition

p reced en t o f referral to a rb itra tio n ?
A: Sec. 24 o f Republic Act No. 9285, otherwise known
as An Act to In stitu tio n a liz e th e Use o f an A lternative
586 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

D ispute R esolution System in th e Philippines and to

E stablish th e Office for A lternative D ispute R esolution,
and for O ther Purposes (April 2, 2004), provides for the
rule on prior referral of the case to arbitration. It states that:
“Sec. 24. Referral to Arbitration. — A court
before which an action is brought in a m atter w hich ia
th e subject m atter o f an arbitration agreem ent shall,
if at least one party so requests n ot later th at the pre­
trial conference, or upon th e request o f both parties
thereafter, refer th e parties to arbitration u n less it
finds th at th e arbitration agreem ent is null and void,
inoperative or incapable o f being perform ed.”

Case Law:

Under Sec. 24, the RTC does not have jurisdiction

over disputes that are properly the subject of arbitration
pursuant to an arbitration clause, and mandates the referral
to arbitration in such cases, thus:
Sec. 24. Referral to Arbitration. — A court before which
an action is brought in a matter which is the subject matter
of an arbitration agreement shall, if at least one party so
requests not later than the pre-trial conference, or upon
the request of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration agreement is
null and void, inoperative or incapable of being performed.
(Korea Technologies Co. Ltd. vs. Hon. Alberto A. Lerma, G.R.
No. 143581, January 7, 2008)
Q: W hat are th e affirm ative defenses u n d er Sec. 5(b),
Rule 6 ?
A: The affirmative defenses under Sec. 5(b), Rule 6 include
the following, to wit:
1) Fraud;
2) Statute of limitations;
3) Release;
4) Payment;
 CHAPTER IV 587
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

5) Illegality;
6) Statute of frauds;
7) Estoppel;
8) Former recovery;
9) Discharge in bankruptcy; and
10) Any other matter by way of confession and avoidance.
Q: W hat is th e effect o f failure to raise th e affirm ative
defenses in th e answ er u n d er th e am ended ru les?
A: Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.

Q: Can th e co u rt m o tu proprio resolve th e affirm ative

defenses u n d er th e am ended ru les?
A: Yes, as mandated by the above provision of the rules,
the court shall motu proprio resolve the above affirmative
defenses within thirty (30) calendar days from the filing of the
answer.
Q: W hat are th e actio n s o f th e co u rt as regards
affirm ative defenses u n d er Sec. 5(h), Rule 6 u n d er th e
am ended ru les?
A: As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6, the court may perform the
following:
1) Conduct a summary hearing within fifteen (15)
calendar days from the filing of the answer;
2) Such affirmative defenses shall be resolved by the
court within thirty (30) calendar days from the termination of
the summary hearing.
Q: W hat is th e purpose o f sum m ary hearing on th e
affirm ative defense?
A: This procedure is designed to prevent a tedious, if not
traumatic, trial in case the complaint falls short of sufficiently
alleging a cause of action.
588 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

|_ C a s e _ ^ w ^

Hence, the trial court should have granted petitioners’

motion for a preliminary hearing on the affirmative defenses
raised in the answer based on failure to state a cause of
action. This procedure is designed to prevent a tedious, if not
traumatic, trial in case the complaint falls short of sufficiently
alleging a cause of action. (Philippine D aily Inquirer vs. Hon.
Elm o M. A lm e d a , G.R. No. 1 6 0 6 0 4 , M arch 2 8 , 2 0 0 8 )

Q: W hat is th e rem edy in case of denial of th e affirm ative

defenses u n d er th e am ended rules?
A: Affirmative defenses, if denied, shall not be the subject
of a motion for reconsideration or petition for certiorari,
prohibition or m a n d a m u s , but may be among the matters to
be. raised on appeal after a judgment on the merits.

f) O ther defense available to th e defendant

under existing Rules:

Q: W hat is a S trategic Lawsuit Against Public

P articipation?
A: A legal action filed to harass, vex, exert undue pressure
or stifle any legal recourse that any person, institution or
the government has taken or may take in the enforcement
of environmental laws, protection of the environment or
assertion of environmental rights shall be treated as a SLAPP
and shall be governed by these Rules. (Sec. 1, R ule 6, Part II
o f th e R u le s on E n viro n m en ta l C ases)

Q: How to allege S trategic Lawsuit Against Public

P articipation (SLAPP) as a defense?
A: Defendant may file an answer interposing as a defense
that the case is a SLAPP.
 CHAPTER IV 589
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

Procedural Basis:

Sec. 2, Rule 6, P art II of th e Rules on Environm ental

Cases provides for the rule on the manner of setting up the
defense of SLAPP. It states that:
‘Sec. 2. SLAPP a s a defense; how alleged. —
In a SLAPP filed against a person involved in the
enforcem ent o f environm ental laws, protection of
th e environm ent, or assertion of environm ental
rights, the defendant may file an answer interposing
as a defense that the case is a SLAPP and shall be
supported hy documents, affidavits, papers and other
evidence: and, by way o f counterclaim , pray for
dam ages, attorney’s fees and co sts o f su it.”

Q: What is th e quantum of evidence required in th e

SLAPP hearing?
A: The party seeking the dismissal of the case must prove
by substantial evidence that his act for the enforcement of
environmental law is a legitimate action, while the party filing
the action assailed as a SLAPP shall prove by preponderance
of evidence that the action is not a SLAPP and is a valid claim.

|[_Procedur^B asi^J
Sec. 3, Rule 6, P art II of th e Rules on Environm ental
Cases provides for the rule on the conduct of the hearing on
the SLAPP and the quantum of evidence. It states that:
“Sec. 3. Summary hearing. — The hearing on
the defense of a SLAPP shall be summary in nature.
The parties m ust subm it all available evidence in
support o f their respective positions. The party
seeking the dism issal o f the case m ust prove by
substantial evidence that his act for th e enforcem ent
o f environm ental law is a legitim ate action for the
protection, preservation and rehabilitation of the
environm ent. The party filing th e action assailed aa a
SLAPP shall prove by preponderance o f evidence that
th e action is not a SLAPP and is a valid claim .”
590 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e rule on th e reso lu tio n of th e defense of
SLAPP?
A: If the court dismisses the action it is with prejudice and
may award damages, attorney’s fees and costs of suit under
a counterclaim if such has been filed, otherwise the action
shall proceed and the evidence adduced shall be treated as
evidence on the merits.

P rocedural Basis:

Sec. 4 , Rule 6 P art II o f th e Rules on E nvironm ental

Cases provides for the rule on the conduct of the hearing on
the SLAPP. It states that:
“Sec. 4 . R esolu tion o f th e d e fe n se o f a SLAPP. —
The affirm ative defen se o f a SLAPP shall be resolved
w ithin th irty (30) days after th e sum m ary hearing. If
the court d ism isses th e action , th e court m ay award
dam ages, attorney’s fees and c o sts o f su it under a
counterclaim if such has been filed. The dism issal
shall be w ith prejudice.
If th e court rejects th e d efen se o f a SLAPP, the
evid en ce adduced during th e sum m ary hearing shall
be treated as evid en ce o f th e parties on th e m erits o f
the case. The action shall proceed in accordance with
th e R ules o f Court.”

13. S trik in g O ut o f Pleading or M atter C ontained

Therein:

Sec. 13, Rule 8 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on striking out of the pleading or matter contained
therein. It states that:
“Sec. 13. S trik in g o u t o f p le a d in g o r m a tte r
c o n ta in e d th erein . — Upon m otion m ade by a party
before responding to a pleading or, if no responsive
pleading is perm itted by th e se R ules, upon m otion
 CHAPTER IV 591
RULE 8: MANNER OF MAKING ALLEGATIONS IN THE PLEADINGS

made by a party w ithin tw enty (20) calendar days

after the service o f th e pleading upon him or her, or
upon th e court’s own initiative at any tim e, th e court
m ay order any pleading to be stricken out or that any
sham or false, redundant, im m aterial, im pertinent, or
scandalous m atter be stricken out therefrom . (12a)”

COMMENTS
Q: How to strik e o u t in th e pleading any sham or false,
redu n d an t, im m aterial, im p ertin en t, or scandalous or
m atte r?
A: 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 by:
1) 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, or2
2) Upon the court’s own initiative at any time.
 CH A PTER V

RULE 9: EFFECT OF FAILURE TO PLEAD

1. D efenses and O bjections Not Pleaded:

Sec. 1, Rule 9 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on defenses and objection not pleaded and motu
proprio dismissal of the claims. It states that:
uSec. 1. Defenses a n d objections not p lea d ed .
— D efenses and objections n ot pleaded eith er in a
m otion to dism iss or in th e answer are deem ed waived.
However, w hen it appears from th e pleadings or th e
evid en ce on record th a t th e court has no jurisdiction
over th e subject m atter, th a t there is another action
pending betw een th e sam e parties for th e sam e cause,
or th a t th e action is barred by a prior judgm ent or
by sta tu te o f lim itation s, th e court shall d ism iss th e
claim . (1)”

COMMENTS
Q: W hat is th e effect if th e objections or defenses are
n o t pleaded?
A Defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived.

Case Law:

Except for the defenses of: (a) lack of jurisdiction over the
subject matter of the case; (b) litis pendentia; (c) res judicata;
and/or (d) prescription, other defenses must be invoked when
592
 CHAPTER V 593
RULE 9: EFFECT OF FAILURE TO PLEAD

an answer or a motion to dismiss is filed in order to prevent a

waiver thereof. Otherwise stated, if a defendant fails to raise
a defense not specifically excepted in Section 1, Rule 9 of the
Rules of Court either in a motion to dismiss or in the answer,
such defense shall be deemed waived, and consequently,
defendant is already estopped from relying upon the same in
further proceedings. (Edron C onstruction Corporation vs. The
Provincial G overnm ent o f Surigao Del Sur, G.R. No. 2 2 0 2 1 1 ,
J u n e 5, 2 017)

Q: What are th e grounds for th e m otu proprio dism issal

of th e claim ?
A: Under the above-cited rule, when it appears from the
pleadings or the evidence on record the court shall m otu
proprio dismiss the claim based on the following grounds, 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 same cause;
3) That the action is barred by a prior judgment; or
4) By statute of limitations.

3
|| ») Lack of ju risd ictio n over th e subject m a tte r
Q: Can th e co u rt m otu proprio dism iss th e case if one
of th e parties to th e actio n is n o t a Muslim under P.D.
1083?
A: Yes, the Shari’a District Court had no jurisdiction under
the law to decide private respondents’ complaint because not
all of the parties involved in the action are Muslims.

|[_Case_Law: ||

In view of the foregoing, the Shari’a District Court had

no jurisdiction under the law to decide private respondents’
594 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

complaint because not all of the parties involved in the action

are Muslims. Since it was clear from the complaint that the
real party defendant was the Municipality of Tangkal, the
Shari’a District Court should have simply applied the basic
doctrine of separate juridical personality and motu proprio
dismissed the case. (Municipality o f Tangkal, Province of
Lanao del Norte vs. Balindong, G.R. No. 193340, January 11,
2017)

b) Litis P endentia:

Q: W hat are th e req u isites for litis p en d en tia to be a

ground for dism issal o f th e a ctio n ?
A: The requisites m ust concur, identity of parties, identity
of rights asserted and relief prayed for, and identity of the two
preceding particulars is such that any judgment rendered in
the pending case amount to res judicata in the other.

Case Law:
To lay down the basics, litis pendentia, as a ground for
the dismissal of a civil action, refers to that situation wherein
another action is pending, between the same parties for the
same cause of action, such that the second action becomes
unnecessary and vexatious. For the bar of litis pendentia to
be invoked, the following requisites m ust concur: (a) identity
of parties, or at least, such parties as represent the same
interests in both actions; (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts;
and (c) 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 judicata in
the other. (Lajave Agricultural Management and Development
Enterprises, Inc. vs. Spouses Agustin Javellana and Florence
Apilis^Javellana, G.R. No. 223785, November 7, 2018)

c) M otu proprio dism issal based on p rescription:

Q: Can th e c o u rt m o tu proprio dism iss th e case based

on p rescrip tio n if th e facts are ap p aren t in th e pleading
or evidence on reco rd ?
 CHAPTER V 595
RULE 9: EFFECT OF FAILURE TO PLEAD

A: Yes, prescription may be considered by the court motu

proprio if the ground is apparent from the pleading or evidence
on record.

There is no dispute that the respondents’cause of action

against the petitioners has prescribed under the Civil Code.
In fact, the same is evident on the complaint itself. The
respondents brought their claim before a Philippine court
only on March 6, 2001, more than 13 years after the collision
occurred. Article 1139 of the Civil Code states that actions
prescribe by the mere lapse of time fixed by law. Accordingly,
the RTC of Catbalogan cannot be faulted for the motu proprio
dismissal of the complaint filed before it. It is settled that
prescription may be considered by the courts motu proprio
if the facts supporting the ground are apparent from the
pleadings or the evidence on record. (Caltex, Inc., et al. vs. Ma.
Flora A. Singzon Aguirre, et al., G.R. Nos. 170746-47, March 9,
2016)
Q: Can th e co u rt m otu proprio dism iss th e action based
on prescription even if n o t raised as a defense?
A: Yes, the court is mandated to dismiss the claim even if
prescription is not raised as a defense.

If the pleadings or the evidence on record show that

the claim is barred by prescription, the court is mandated
to dismiss the claim even if prescription is not raised as a
defense. In Heirs of Valientes vs. Ramas, we ruled that the
Court of Appeals may motu proprio dismiss the case on the
ground of prescription despite failure to raise this ground on
appeal. The court is imbued with sufficient discretion to review
matters, not otherwise assigned as errors on appeal, if it finds
that their consideration is necessary in arriving at a complete
and just resolution of the case. More so, when the provisions
on prescription were enacted to benefit and protect taxpayers
from investigation after a reasonable period of time. (China
596 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Banking Corporation vs. Commissioner of Internal Revenue,

G.R. No. 172509, February 4, 2015)

Q: Can th e co u rt m o tu proprio dism iss th e a ctio n for

failure to com ply w ith th e co n d itio n p reced en t o f e a rn e st
efforts tow ards com prom ise betw een m em bers o f th e
fam ily?
A: No. motu proprio dismissal in case of failure to comply
with the condition precedent of earnest efforts towards
compromise between members of the family.

Case Law:

The error of the CA is evident even if the consideration

of the issue is kept within the confines of the language of
Sec. 1(j) of Rule 16 and Sec. 1 of Rule 9. That a condition
precedent for filing the claim has not been complied with, a
ground for a motion to dismiss emanating from the law that
no suit between members from the same family shall prosper
unless it should appear from the verified complaint that
earnest efforts toward a compromise have been made but
had failed, is, as the Rule so words, a ground for a motion to
dismiss. Significantly, the Rule requires that such a motion
should be filed “within the time for but before filing the
answer to the complaint or pleading asserting a claim.” The
time frame indicates that thereafter, the motion to dismiss
based on the absence of the condition precedent is barred.
It is so inferable from the opening sentence of Sec. 1 of Rule
9 stating that defense and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. There
are, as ju st noted, only four exceptions to this Rule, namely,
lack of jurisdiction over the subject matter; litis pendentia;
res judicata; and prescription of action. Failure to allege in
the complaint that earnest efforts at a compromise has been
made but had failed is not one of the exceptions. Upon such
failure, the defense is deemed waived. (Heirs o f Dr. Mariano
Favis, Sr., Represented By Their Co-Heirs and Attomeys-In-
Fact Mercedes A. Favis and Nelly Favismllafuerte vs. Juana
Gonzales, Her Son Mariano G. Favis, Ma. Theresa Joana D.
Favis, James Mark D. Favis, All Minors Represented Herein
 CHAPTER V 597
RULE 9: EFFECT OF FAILURE TO PLEAD

By Their Parents, Sps. Mariano Favis and Larcelitad Favis,

G.R. No. 185922, January 15, 2014)
Q: W hat are th e exceptions to "Om nibus M otion Rule”?
A: The exceptions to the omnibus motion rule are the 1)
The court has no jurisdiction over the subject matter; 2) That
there is another action pending between the same parties
for the same cause; 3) That the action is barred by a prior
judgment; or 4) By statute of limitations.

Sec. 8, Rule 15 of th e Rules of Court defines an

omnibus motion as a motion attacking a pleading, judgment
or proceeding. A motion to dismiss is an omnibus motion
because it attacks a pleading, that is, the complaint. For this
reason, a motion to dismiss, like any other omnibus motion,
must raise and include all objections available at the time of
the filing of the motion because under Sec. 8: “all objections
not so included shall be deemed waived.”
As inferred from the provision, only the following defenses
under 8ec. 1, Rule 9, are exempted from its application:
a) Lack of jurisdiction over the subject matter;
b) There is another action pending between the same
parties for the same cause (litis pendentia);
c) The action is barred by prior judgment (res judicataj,
and
d) The action is barred by the statute of limitations or
prescription. (League of Cities of the Philippines [LCP], et al.
vs. Commission on Elections, et al., G.R. No. 176951, April 12,
2011 )

Q: W hat is th e rule in case o f failure to allege defenses

and objection in Expropriation Proceedings?
A: A defendant waives all defenses and objections not so
alleged, but the court in the interest of justice, may permit
amendments to the answer to be made not later than ten (10)
days from the filing thereof.
598 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 3, Rule 67 o f th e 1997 Rules of Civil P rocedure

provides for the rule on the right of the plaintiff to enter the
property upon deposit of the value. It states that:
"See. 3. Defenses a n d objections. —
XXX.

A defendant w aives all defen ses and objections

n ot so alleged but th e court, in th e in terest o f ju stic e,
m ay perm it am endm ents to th e answer to be made
n ot later than ten (10) days from th e filing thereof.
However, at th e trial o f th e issu e o f ju st com p en sation,
w hether or n o t a defendant has previously appeared or
answered, he m ay p resen t evid en ce as to th e am ount
o f th e com p en sation to be paid for h is property, and
he m ay share In th e distribution o f th e award."

om pulsory C ounterclaim o r Cross-claim Noth

E et Up Barred: ||

Sec. 2, Rule 9 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the effect to plead a compulsory counterclaim or
set cross-claim. It states that:
“Sec. 2. Compulsory counterclaim or cross-claim
not s e t up barred. — A com pulsory counterclaim , or a
cross-claim , n ot se t up shall be barred.” (2)
COMMENTS
Q: W hat is th e effect if com pulsory co unterclaim or s e t
cross-claim is n o t pleaded in th e pleading?
A: A compulsory counterclaim, or a cross-claim, not set up
shall be barred.

Case Law:

Under the Rules, a compulsory counterclaim, or a cross­

claim, not set up shall be barred. Thus, a cross-claim cannot
 CHAPTER V 599
RULE 9: EFFECT OF FAILURE TO PLEAD

be set up for the first time on appeal. (Loadmasters Customs

Services, Inc. vs. Glodel Brokerage Corporation and R&B
Insurance Corporation, G.R. No. 179446, January 9, 2011)

3. O rder o f D efault an d Ju d g m e n t by Default:

Sec. 3, Rule 9 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on declaration of default. It states that:
“Sec. 3. Default; declaration of. — If the
defending party fails to answer w ithin th e tim e
allowed therefor, th e court shall, upon m otion o f the
claim ing party w ith n o tice to th e defending party,
and proof o f such failure, declare th e defending party
in default. Thereupon, th e court shall proceed to
render judgm ent granting th e claim ant such relief his
or her pleading m ay warrant, u n less th e court in its
discretion requires th e claim ant to subm it evidence.
Such reception o f evid en ce m ay be delegated to th e
clerk o f court.
(a) E ffect o f order o f default. — A party in
default shall be e n titled to n otice o f subsequent
proceedings but shall n o t take part in th e trial.
(b) R elief fro m order o f d e fa u lt — A party
declared in default m ay at any tim e after n otice
th ereof and before judgm ent file a m otion under oath
to s e t aside th e order o f default upon proper showing
th a t h is or her failure to answer was due to fraud,
accid en t, m istake or excusable negligence and that
he or sh e has a m eritorious defense. In such case, th e
order o f default m ay be se t aside on su ch term s and
con d ition s as th e judge m ay im pose in th e in terest o f
ju stice.
(c) E ffect o f p a r tia l defau lt. — When a pleading
assertin g a claim s ta te s a com m on cause o f action
against several defending parties, som e o f whom
answer and th e others fail to do so, th e court shall try
th e case against all upon th e answers th u s filed and
render judgm ent upon th e evid en ce presented.
(d) E xtent o f re lie f to be a w a rd ed . — A judgm ent
rendered against a party in default shall not exceed
600 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e am ount or be different in kind from th a t prayed

for nor award unliquidated dam ages.
(e) Where nodefau Its allow ed . — Ifthe defending
party in an action for annulm ent or declaration o f
n ullity o f marriage or for legal separation fails to
answer, th e court shall order th e Solicitor General or
h is or her deputized public prosecutor, to in vestigate
w hether or n o t a collu sion betw een th e parties ex ists,
and if there is no collu sion , to intervene for th e S tate
in order to se e to it th a t th e evid en ce subm itted is
not fabricated. (3a)”

COMMENTS
Q: W hat is th e effect if th e defending p arty fails to file
a n answ er?
A: 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.

Case Law:

Section 3, Rule 9 of the Rules of Court states when a

party may be properly declared in default and the remedy
available in such case.
Carson moved to dismiss the complaint instead of
submitting a responsive pleading within fifteen (15) days
from April 27, 2007 as prayed for in its Appearance and
Motion. Clearly, Carson failed to answer within the time
allowed for by the RTC. At this point, Carson could have
already been validly declared in default. However, believing
that it has yet to acquire jurisdiction over Carson, the RTC
issued the September 24, 2007 and September 9, 2008 alias
Summons. This culminated in the issuance of the assailed
June 29, 2009 Order declaring Carson in default on the basis
of the substituted service of the September 9, 2008 alias
Summons. While Carson filed its Urgent Motion to Lift Order
of Default, the CA found that the same failed to comply with
the requirement under Sec. 3(b) that the motion be under
oath.
 CHAPTER V 601
RULE 9: EFFECT OF FAILURE TO PLEAD

It bears noting that the propriety of the default order

stems from Carson’s failure to file its responsive pleading
despite its voluntaiy submission to the jurisdiction of the trial
court reckoned from its filing of the Appearance and Motion,
and not due to its failure to file its answer to the September
8, 2008 alias Summons. (Carson Realty and Management
Corporation vs. Red Robin Security Agency and Monina C.
Santos, G.R. No. 225035, February 8, 2017)*1

| O rder o f D efault (Bar E xam inations 2015 and 201

Q: W hat is an O rder o f D efault?

A: A default order is issued by the court, on plaintiffs
motion and at the start of the proceedings, for failure of the
defendant to file his responsive pleading seasonably.
Q: W hat are th e req u irem en ts for th e declaration of
default?
A: Three (3) requirements before the defendant may be
declared in default shall be: 1) motion in writing; 2) defendant
must be notified of the motion; 3) proof that defending party
failed to file answer within the prescribed period.

| Case L a w ^ J
Under Section 3, Rule 9 of the Rules of Court, the three
requirements to be complied with by the claiming party before
the defending party can be declared in default are:
(1) that the claiming party must file a motion praying
that the court declare the defending party in default;
(2) the defending party must be notified of the motion
to declare it in default;
(3) the claiming party must prove that the defending
party failed to answer the complaint within the period
provided by the rule. It is plain, therefore, that the default
of the defending party cannot be declared motu proprio.
(Momarco Import Company, Inc. vs. Felicidad Villamena, G.R.
No. 192477, July 27, 2016)
602 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Can th e c o u rt m o tu proprio declare a defen d an t in

default?
A: No. Sec. 3, Rule 9 states that a motion in writing is
required in order to declare the defendant in default.

Q: Is th e re an y ex cep tio n ?
A: In environmental cases, the court in itself may declare
defendant in default for failure to file his answer, and upon
motion allow the plaintiff to present evidence ex-parte. (Sec.
15, Rule II, Rules on Environmental Cases)

Q: W hat are th e effects o f o rd er o f d efault?

A: A party in default shall be entitled to notices of subsequent
proceedings but shall not to take part in the trial.

Case Law:

The petitioners’default by their failure to file their answer

led to certain consequences. Where defendants before a trial
court are declared in default, they thereby lose their right to
object to the reception of the plaintiffs evidence establishing
his cause of action. This is akin to a failure to, despite due
notice, attend in court hearings for the presentation of the
complainant’s evidence, which absence would amount to
the waiver of such defendant’s right to object to the evidence
presented during such hearing, and to cross-examine the
witnesses presented therein. (Magdiwang Realty Corporation,
Renato P. Dragon and Esperanza Tolentino vs. The Manila
Banking Corporation, Substituted By First Sovereign Asset
Management {SPV-AMC], Inc., G.R. No. 195592, September 5,
2012 )

4. O rder o f defau lt in an actio n for In terp lead er

(Rule 62):
Q: Can th e d efen d an t in an actio n for in terp lead er be
declared in d efau lt?
 CHAPTER V 603
RULE 9: EFFECT OF FAILURE TO PLEAD

A: Yes, defendant in an action for interpleader fails to file

an answer with fifteen (15) days from service of summons.

P rocedural Basis:

Sec. 5, Rule 62 o f th e Rules provides for the period

of filing an answer and other pleadings, and declaration of
default in interpleader. It states that:
“Sec. 5. A nsw er an d oth er pleadin gs. — Each
claim ant shall file h is answer settin g forth h is claim
w ithin fifteen (15) days from service o f th e sum m ons
upon him , serving a copy th ereo f upon each o f th e
other con flictin g claim ants w ho m ay file their reply
th ereto as provided by th e se Rules. If any claim ant
fails to plead w ithin th e tim e herein fixed, th e court
may, on m otion, declare him in default and thereaf­
ter render judgm ent barring him from any claim in
resp ect to th e subject m atter.”

S a m p le F o rm W o. 1 : Monow To D e c la r e D e f e n d a n t In D e f a u l t
(S e c , 3. R u le 9)

REPUBLIC O F T H E PH ILIPPINES
NATIONAL CAPITAL JU D IC IA L REGION
REGIONAL TRIAL CO U RT
P a sig C ity
B r a n c h ______
MR. X,
P lain tiff,
- versus - CIVIL C A SE N O .________________
For: S u m o f M oney w ith D a m a g e s
MR. Y,
D e fe n d a n t,
x ---------------------------- x

MOTION TO DECLARE DEFENDANT IN DEFAULT

COMES NOW, th e p la in tiff, th r o u g h th e u n d e rs ig n e d
c o u n s e l a n d u n t o th is H o n o ra b le C o u rt, m o s t av ers:
604 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1. T h a t th e s u m m o n s in th e a b o v e -e n title d c a s e w a s
d u ly se rv e d o n J a n u a r y 15, 2 0 1 2 to t h e d e fe n d a n t;
2. T h a t n o tw ith s ta n d in g th e la p s e o f m o re t h a n fifteen
(15) d a y s a fte r re c e ip t o f th e s u m m o n s , d e fe n d a n t failed
to file h is a n s w e r o r r e s p o n s iv e p le a d in g s a s e v id e n c e d by
th e S h e r if f s R e p o rt w h ic h is h e re to a tta c h e d a s A n n ex “A*
h ereo f.
WHEREFORE, p r e m is e s c o n s id e re d , it is m o s t
re s p e c tfu lly p ra y e d o f th is H o n o ra b le C o u rt t h a t th e
d e f e n d a n t b e d e c la re d in d e fa u lt, a n d th e p la in tiff b e allow ed
to p r e s e n t h is e v id e n c e ex-parte.
O th e r re lie f a n d re m e d ie s a s m a y b e d e e m e d j u s t a n d
e q u ita b le u n d e r t h e p r e m is e s a r e lik e w ise p ra y e d for.
M a n ila , fo r P a sig C ity, F e b r u a r y 13, 2 0 2 0 .

TLLM & ASSOCIATES

LAW OFFICE
C o u n s e l fo r th e p la in tiff
R oom 1 4 0 8 E r m ita C e n te r B ldg,,
1 3 5 0 R o x a s B lvd., cor, S ta M o n ica S t.
E rm ita , M a n ila
by:
FERDINAND A. TAN
IB P L ifetim e No. 0 1 4 5 1 0 /2 - 2 4 - 1 6
PTR NO. 8 9 3 2 9 8 1 6 /2 - 2 6 - 2 0 /M la .
Roll No. 3 8 4 8 8
MCLE E x em p tio n No. V 0 0 0 6 7 8 /8 -2 5 -1 5
Tel. No. 2 4 7 -2 7 -5 7

NOTICE OF HEARING
TO: MR. Y
D e fe n d a n t
GREETINGS:
P le a se s u b m it th e fo reg o in g m o tio n for th e c o n s id e ra tio n
a n d a p p ro v a l o f th e H o n o ra b le C o u rt o n ___________________,
2 0 2 0 a t 2 :0 0 p .m .

FERDINAND A. TAN
 CHAPTER V 605
RULE 9: EFFECT OF FAILURE TO PLEAD

CC: MR. Y
Defendant
No. 1136-A A. Maceda Street,
Sampaloc, Manila
EXPLANATION OF SERVICE
Copy of the Motion to Declare defendant in Default was
served to the defendant by registered mail due to time and
distance constraints, and for lack of the undersigned’s staff
who can serve the same in person.
FERDINAND A. TAN

5. Rem edy in case of a p arty in

Q: W hat is th e rem edy of a p arty declared in default

u n d er th e am ended ru les?
A: 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:
1) His or her failure to answer was due to fraud,
accident, mistake or excusable negligence; and
2) That he or she has a meritorious defense.

Q: W hat are th e req u irem en ts for th e lifting of th e order

of default?
A: A party declared in default may at any time after notice
thereof and before judgment may file:
1) A motion under oath to set aside the order of default;
2) Upon proper showing that his failure to answer was
due to fraud, accident, mistake or excusable negligence;
3) That he has a meritorious defense; and
4) 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.
606 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e grounds for th e lifting of th e order of

default under th e am ended rules?
A: 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 failure
to answer was due to:
1) Fraud;
2) Accident;
3) Mistake; or
4) Excusable negligence.

Q: What is extrinsic fraud?

A: Extrinsic fraud refers to any fraudulent act of the
prevailing party in the litigation which is committed outside of
the trial of the case, whereby the unsuccessful party has been
prevented from exhibiting fully his case, by fraud or deception
practiced on him by his opponent. (Philippine Tourism
Authority vs. Philippine Golf Development & Equipment, Inc.,
G.R. No. 176628, March 19, 2012)

Q: What is accident?
A: An event that takes place without one’s foresight or
expectation—an event that proceeds from, an unknown
cause, or is unusual effect of a known cause, and, therefore,
not expected. (Dela Cruz vs. Capital Insurance & Surety Co.,
129 Phil. 1414)
Q: What is m istake?
A: M istake is an error in action or a blunder. (Coombs vs.
Santos, 24 Phil. 451)

Q: W hat is excusable negligence?

A: In practice, and particularly with reference to the
setting aside of a judgment taken against a party through
his “excusable neglect,” this means a failure to take the
proper steps at the proper time, not in consequence of the
 CHAPTER V 607
RULE 9: EFFECT OF FAILURE TO PLEAD

party’s own carelessness, inattention, or willful disregard

of the process of the court, but in consequence of some
unexpected or unavoidable hindrance or accident, or reliance
on the care and vigilance of his counsel or on promises made
by the adverse party. As used in rule (e.g., Fed.R.Civil P. 6[b])
authorizing court to permit an act to be done after expiration
of the time within under the rules such act was the result of
“excusable neglect,” quotes phrase is ordinarily understood
to be the act of a reasonably prudent person under the same
circumstances. (Black’s Law Dictionary Fifth Edition, pp. 292-
293)

Q: W hat is th e rule on th e effect on th e clie n t as regards

th e a c ts o f h is counsel?
A: The rule is that a client is bound by the acts, even
mistakes, of his counsel in the realm of procedural technique,
and unless such acts involve gross negligence that the
claiming party can prove, the acts of a counsel bind the client
as if it had been the latter’s acts.

Case Law:

PTA cannot escape these legal technicalities by simply

invoking the negligence of its counsel. This practice, if
allowed, would defeat the purpose of the Rules on periods
since every party would merely lay the blame on its counsel
to avoid any liability. The rule is that “a client is bound by the
acts, even mistakes, of his counsel in the realm of procedural
technique, and unless such acts involve gross negligence that
the claiming party can prove, the acts of a counsel bind the
client as if it had been the latter’s acts.” (Philippine Tourism
Authority vs. Philippine Golf Development and Equipment, Inc.,
G.R. No. 176628, March 19, 2012)
Q: W hat is th e rem edy in case o f den ial of M otion to Lift
O rder o f D efault?
A: It is a settled rule that in case of denial of the motion to
lift order of default, the defendant-movant may file a m otion
for reco n sid eratio n of the order of the denial of the motion
to lift order of default. In case of denial of the motion for
608 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

reconsideration, then p etitio n for certiorari u nder Rule 65

is available since the orders are an interlocutory orders which
are not appealable under Sec. 1(b) of Rule 41, and the denial
is attendant with grave abuse of discretion amounting to lack
or in excess of jurisdiction.

Case Law:

1) Certiorari has been held as the proper remedy to

question default order and judgment. (Lina vs. Court of
Appeals, 153 SCRA 637)
2) Petition for certiorari is allowed when the default is
improperly declared, or when it is properly declared where
grave abuse of discretion attended such declaration. (Pacita
vs. Carriaga, Jr., 231 SCRA 321)
Q: Is declaration of default proper when th e period to
answer has n o t y et expire?
A: No, declaration of default is improper when the period to
answer has not yet expired, hence, certiorari will lie.

L a w jJ

Where however, the defendant was improperly declared

in default, as where the reglementary period to answer had
not yet expired, he can if such default order is not lifted,
elevate the matter by certiorari without waiting for the
default judgment. (Viacrusis vs. Estenzo, L-18457, June 30,
1962; Pioneer Ins. & Surety Corp. vs. Hontanosas, L-35951,
August 31, 1977)
Q: Can th e co u rt allow th e filing of th e answ er after th e
period to file has lapsed?
A: Yes, it is within the sound discretion of the trial court to
permit the defendant to file his answer and to be heard on
the merits after the reglementary period for filing the answer
expires.
 CHAPTER V 609
RULE 9: EFFECT OF FAILURE TO PLEAD

Case Law:

It is within the sound discretion of the trial court to

permit the defendant to file his answer and to be heard on
the merits after the reglementary period for filing the answer
expires. The Rules of Court provides for discretion on the
part of the trial court not only to extend the time for filing
an answer but also to allow an answer to be filed after the
reglementary period. It is not correct to say that a trial court
has no recourse but to declare a defending party in default
when he fails to file an answer within the required period. In
fact, the rule is that the answer should be admitted where it
is filed before a defending party is declared in default and no
prejudice is caused to the other party and that there is no
showing that the defendant intends to delay the case. (Sablas
vs. Sablas, G.R. No. 144568, July 3, 2007) The hornbook rule
is that default judgments are generally disfavored. (Paramount
Insurance Corp., G.R. No. 175109, August 6, 2008)
Q: W hat Is th e possible actio n o f th e co u rt u n d er th e
am ended ru les?
A: 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.
S ample F orm No. 2; Motion T o Lift O rder O r Default (Sec. 3.
R ule 9)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch ____
MR. X,
Plaintiff,
- versus - CIVILCASEN O .__________
For: Sum of Money with Damages
MR. Y,
Defendant,
x -------------------------- x
610 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MOTION TO LIFT ORDER OF DEFAULT

COMES NOW, the defendant, through the undersigned

counsel and unto this Honorable Court, m ost avers:
1. That defendant received a copy of the Sum m ons
relative to the above-entitled case;
2. That on February 15, 2012, plaintiff went to the
house of the defendant and informed him th a t he will no
longer continue with the prosecution of the case, and told
him to ju s t ignore the complaint he received, and not attend
any hearing of the said case;
3. That through the representation of the plaintiff,
defendant did not file any answ er anymore, and ju s t ignored
the notices he received, only to be surprised th a t he was
declared in default upon receipt of the Order of the court.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court th at the Order
of Default be set aside/lifted based on the above reasons.
Other relief and remedies as may be deemed ju s t and
equitable under the prem ises are likewise prayed for.
Manila, for Pasig City, March 13, 2020.

YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283/2-5-20/M la.
PTR NO. 3 6 4 7 9 8 2 /10-22-20/M la.
MCLE Compliance No. V 4487/1-8-19
Roll No. 38599
Tel. No. 927-9278

VERIFICATION

REPUBLIC OF THE PHILIPPINES)

CITY OF MANILA ) S.S.
 CHAPTER V 611
RULE 9: EFFECT OF FAILURE TO PLEAD

I, MR. Y, of legal age, Filipino citizen, married, and

resident of #1136-A A. Maceda Street, Sampaloc, Manila,
after having been duly sworn to in accordance with law do
hereby depose and say:
1. That I am the defendant in the above-entitled case;
2. That I have caused the preparation of the foregoing
Motion to Lift Order of Default and have read the allegations
contained therein;
3. The allegations in the said complaint are true and
correct of my own knowledge and authentic records.
IN WITNESS WHEREOF, I have hereunto affixed
my signature th is___day of March 2020, in the City of
Manila.
MR. Y

SUBSCRIBED AND SWORN to before me th is _____

day of March 2020, in the City of Manila, affiant exhibiting
to me his Passport. No. _______________ issued at

Doc. No.____;
Page No.____;
Book No.____;
Series of 2020.
NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETI NGS:
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on ____________,
2020, at 2:00 p.m.
HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
4-D, 4th Floor Osmena Bldg.,
1991 Mabini St., Malate Manila
612 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

EXPLANATION OF SERVICE
Copy of the Motion to Lift Order of Default was served
to the counsel for the plaintiff by registered mail due to time
and distance constraints, and for lack of the undersigned’s
staff who can serve the same in person.
HECTOR A. YULO

AFFIDAVIT OF MERIT
REPUBLIC OF THE PHILIPPINES)
IN THE CITY OF MANILA ) S.S.
I, MR. Y, of legal age, Filipino citizen, married, and
resident of #41 A. Maceda Street, Sampaloc, Manila, after
having duly sworn to in accordance with law do hereby
depose and say:
1. That I am the defendant in the above-entitled case;
2. That on February_, 2005, I received a copy of the
Summons relative to the above-entitled case;
3. That on February _, 2005, plaintiff went to our
house and informed me that he will no longer continue with
the prosecution of the case, and just ignore the complaint 1
will receive, and not 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 defending myself in the 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 it
may serve.
IN WITNESS WHEREOF, I have hereunto affixed
my signature this __ day of March 2020, in the City of
Manila.
 CHAPTER V 613
RULE 9: EFFECT OF FAILURE TO PLEAD

MR. Y
SUBSCRIBED AND SWORN to before me t h is _____ day
of M arch 2020, in the City of Manila, affiant exhibiting to me
his Passport N o ._____________ issued a t ______________ on

Doc. N o .____ ;
Page N o .____ ;
B ook N o ._____ ;
Series of 2020.

Q: W hat is th e effect o f p artia l default u n d er th e

am ended ru les?
A: 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:
1) Try the case against all upon the answers thus filed;
and
2) Render judgment upon the evidence presented.
Q: W hat are th e in stan ce s w here default is n o t allowed
u n d er th e am ended ru les?
A: If the defending party in an action for annulment or
declaration of nullity of marriage or for legal separation fails
to answer, the court shall order the Solicitor General or his
or her deputized public prosecutor, to investigate whether or
not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.

Q: W hat are th e o th e r in sta n c e s w hen default is

p roh ib ited ?
A: The other instances wherein default is not allowed?
1) Forcible entry and unlawful detainer;
2) Small Claims Cases;
3) Petition for Writ of Kalikasan;
614 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4) Petition for continuing mandamus;

5) Petition for Writ of Amparo;
6) Petition for Writ of Habeas Data;
7) Environmental cases.

6. Rule on default u n d er th e Sum m ary P rocedure:

Q: Can th e defen d an t in a n actio n u n d er th e Rules on

Sum m ary P rocedure be declared in default?
A: No, since motion to declare defendant in default is a
one of the prohibited motions under the Rules on Summary
Procedure.

Procedural Basis:
Basis I H

Sec. 19(h) o f th e Rules on Sum m ary Procedure

provides for the rule on the prohibition on the filing motion to
declare defendant in default. It states that:
"Sec. 19. Prohibited Pleadings an d motions. —
The following pleadings, m otions, or p etition s shall
not be allowed in th e c a ses covered by th is Rule:

(h) M otion to declare th e defendant in default;”

Q: W hat is th e effect if th e d efen d an t failed to file an

answ er u n d er th e Rules on Sum m ary procedure?
A: No. The court shall render judgment, either motu proprio
or upon plaintiffs motion, based solely on the facts alleged in
the complaint and limited to what is prayed for.

I c . ^ Law: |

Section 6 [of the Rules on Summary Procedure) is clear

that in case the defendant failed to file his answer, the court
shall render judgment, either motu proprio or upon plaintiffs
 CHAPTER V 615
RULE 9: EFFECT OF FAILURE TO PLEAD

motion, based solely on the facts alleged in the complaint

and limited to what is prayed for. The failure of the defendant
to timely file his answer and to controvert the claim against
him constitutes his acquiescence to every allegation stated in
the complaint. Logically, there is nothing to be done in this
situation except to render judgment as may be warranted
by the facts alleged in the complaint. (Fairland Knitcraft
Corporation vs. Arturo Loo Po, G.R. No. 217694, January 27,
2016)

7. Rule on defau lt u n d er th e Rules on Sm all Claims

Cases:

Q: Can th e d efen d an t in an actio n for Sm all Claim s be

declared in d efau lt?
A: No, motion to declare defendant in Default is a prohibited
motion under the Rules on Small Claims Cases.

jj^Procedural B asisjj)

Sec. 14(h) o f th e Revised 2 0 1 6 Rules on Sm all Claims

Cases (A.M. No. 08-8-7) enumerates the motions and
pleadings not allowed. It states that:
“Sec. 14. Prohibited p lea d in g s an d motions. —
The follow ing pleading*, m otion s, or p etition * shall
n ot be allow ed in th e c a ses covered by th is Rule:

h) M otion to declare defendant in default;”

8. Rule on default u n d er th e E n vironm ental Cases:

Q: Can th e d efen d an t in an actio n u n d er th e Rules on

E nvironm ental Cases be declared in default?
A: No, motion to declare defendant in default is one of the
prohibited motions in environmental cases.
616 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 2(h), Rule 2, P art II o f A.M. No. 09-6-08-

SC otherwise known as the Rules o f Procedure for
E nvironm ental Cases enumerate the prohibited pleadings
and motions in environmental cases. It states that:
“Sec. 2. Prohibited p lea d in g s an d motions. —
The following pleadings and m otions shall not be
allowed:
h) M otion to declare defendant in default.”

b) Ju d g m en t by Default:

Q: W hat will be th e actio n of th e co u rt after th e

declaration of default?
A: 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.
Q: W hat is a ju d g m en t by default?
A: A judgment by default — is a judgment rendered by the
court based on the presentation of the plaintiffs 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.
Q: W hat is th e n atu re of ju d g m en t by default?
A: Judgment by default is not looked upon with favor to
prevent a positive and considerable injustice to the defendant.

Case Law:

Judgment by default, not looked upon with favor, to

prevent a positive and considerable injustice to the defendant
and considering that petitioner’s answer appears to have a
 CHAPTER V 617
RULE 9: EFFECT OF FAILURE TO PLEAD

meritorious defense. (Continental Leaf Tobacco [Phil.], Inc. vs.

IAC, 140 SCRA 269)
Q: Can th e recep tio n o f evidence be delegated u n d er th e
am ended ru les?
A: Yes, as mandated by the above cited rule, such reception
of evidence may be delegated to the clerk of court.
Q: W hat is th e e x te n t o f th e relief th a t can be aw arded
u n d er th e am en d ed ru les?
A: A judgment rendered against a party in default shall
neither exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.
Q: W hat is th e reason for lim itin g th e e x te n t o f relief
th a t m ay be g ran ted in case o f ju d g m en t by default?
A: The reason behind Sec. 3(d), Rule 9 of the Rules of Court
is to safeguard defendant’s right to due process against
unforeseen and arbitrarily issued judgment.

Case Law:
The raison d ’etre in limiting the extent of relief that may
be granted is that it cannot be presumed that the defendant
would not file an Answer and allow himself to be declared
in default had he known that the plaintiff will be accorded
a relief greater than or different in kind from that sought in
the Complaint. No doubt, the reason behind Sec. 3(d), Rule 9
of the Rules of Court is to safeguard defendant’s right to due
process against unforeseen and arbitrarily issued judgment.
This, to the mind of this Court, is akin to the veiy essence of
due process. It embodies “the sporting idea of fair play” and
forbids the grant of relief on matters where the defendant
was not given the opportunity to be heard thereon. (Leticia
Diana, rep. by her Attomey-in-Fact, Marcelina Diona vs. Romeo
A. Balangue, Sonny A. Balangue, Reynaldo A. Balangue, and
Esteban A. Balangue, Jr., G.R. No. 173559, January 7, 2013)
618 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

I b) Ju d g m e n t by D efault in In terro g ato ries to Parties:

Q: W hat is th e effect in case o f failure to file an answ er

an In terro g ato ries?
A: If a party or an officer or managing agent fails to serve
answers to interrogatories submitted after proper service of
such interrogatories, the court on motion and notice, enter a
judgment by default against that party.

Procedural Basis:

Sec. 5, Rule 29 o f th e 1997 Rules o f Civil Procedure

provides for the rule on rendition of judgment in case of
failure to serve answer to interrogatories. It states that:
“S ec. 5. Failure o f p a r ty to a tte n d or serve
answ ers. — If a party or an officer or m anaging
agent of a party w illfully fails to appear before th e
officer who is to take h is deposition, after being
served w ith a proper n o tice, or fails to serve answers
to interrogatories subm itted under Rule 2 5 , after
proper service o f su ch interrogatories, th e court on
m otion and n o tice, m ay strike out all or any part o f
any pleading o f th at party, or dism iss th e action or
proceeding or any part thereof, or enter a judgm ent
by default against th a t party, and in its discretion,
order him to pay reasonable exp en ses incurred by th e
other, including attorney’s fee s.”

c) Ju d g m en t by D efault in DNA Testing:

Q: W hat are th e possible rem edies in case of refusal to

com ply for DNA te stin g ?
A: The court may either enter a judgment by default or trial
shall be conducted to allow disclosure of the fact of refusal.
 CHAPTER V 619
RULE 9: EFFECT OF FAILURE TO PLEAD

|_ C a s e _ L a w jJ

In a proceeding under this act before trial, the court,

upon application made by or on behalf of either party, or on
its own motion, shall order that the mother, child and alleged
father submit to blood or tissue typing determinations, which
may include, but are not limited to, determinations of red
cell antigens, red cell isoenzymes, human leukocyte antigens,
serum proteins, or DNA identification profiling, to determine
whether the alleged father is likely to be, or is not, the father
of the child. If the court orders a blood or tissue typing or DNA
identification profiling to be conducted and a party refuses
to submit to the typing or DNA identification profiling, in
addition to any other remedies available, the court may do
either of the following:
(a) Enter a default judgment at the request of the
appropriate party;
(b) If a trial is held, allow the disclosure of the fact of the
refusal unless good cause is shown for not disclosing the fact
of refusal (Sec. 6, Rules on DNA Evidence). (Amel L. Agustin,
petitioner vs. Hon. Court of Appeals and minor Martin Jose
Prollamante, represented by his mother/guardian Fe Angela
Prollamante, respondents., G.R. No. 162571, June 15, 2005)

9. Possible rem edies in case o f ju d g m en t by default:

Q: W hat are th e possible rem edies of th e defending

p arty in case o f ju d g m en t by d efau lt?
A: Before finality:
1) Motion to set aside judgment by default or Motion
for New Trial (Rule 37);
2) Motion for Reconsideration (Sec. 1, Rule 37);
A fter finality:
1) Petition for Relief from judgment (Rule 38);
2) Petition for annulment of judgment (Rule 47);
3) Petition for Certiorari (Rule 65);
4) Collateral attack.
620 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a) P etitio n for relief from judgm ent:

Q: W hen is p etitio n for relief from ju d g m en t available?

A: Sec. 1, Rule 38 o f th e 1997 Rules of Civil Procedure
provides for the remedy of a petition for relief from judgment,
order or other proceedings. It states that:
“8«c. 1. Petition fo r relieffro m Judgment, order,
or oth er proceedings. — When a judgm ent or final
order is entered, or any other proceeding is thereafter
taken against a party in any court through fraud,
accident, m istake, or excusable negligence, he may
file a p etition in such court and in th e sam e case
praying that th e judgm ent, order or proceeding be set
aside." *6

Under Rule 38, when a judgment or final order is entered,

or any other proceeding is thereafter taken against a party
in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the
same case praying that the judgment, order or proceeding be
set aside. The verified petition must be filed within sixty (60)
days after the petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not more than six
(6) months after such judgment or final order was entered.
(Genato Investments, Inc. vs. Hon. Judge Oscar P. Barrientos,
In His Capacity as the Presiding Judge Of The Regional Trial
Court, o f Caloocan City, Branch 123, Emily P. Dizon, In Her
Capacity as the Branch Clerk of Court of the Regional Trial
Court o f Caloocan City, Branch 123, Jimmy T. Soro, Court
Process Server o f the Regional Trial Court of Caloocan, Branch
123, Evelina M. Garma, City Treasurer o f Caloocan City, Phillip
L. Yam, OffLcer-In-Charge, Real Property Tax Division of the
Caloocan City Treasurer's Office, Anthony B. Pulmano, Officer-
In-Charge, City Assessor o f Caloocan City, and Laveme Realty
& Development Corporation, G.R. No. 207443, July 23, 2014)
 CHAPTER V 621
RULE 9: EFFECT OF FAILURE TO PLEAD

3
b) P etitio n for a n n u lm en t of ju d g m en t

Q: W hat is th e rem edy in case o f a final and executory

ju d g m en t by default?
A: Final and executory judgment can be annulled by
petition for relief or petition for annulment of judgment.

Case Law:

A final and executory decision can only be annulled

by a petition to annul the same on the ground of extrinsic
fraud and lack of jurisdiction, or by a petition for relief from a
final order or judgment under Rule 38 of the Rules of Court.
However, no petition to that effect was filed. Well-settled is
the rule that once a judgment becomes final and executory,
it can no longer be disturbed, altered, or modified in any
respect except to correct clerical errors or to make nunc pro
tunc entries. Nothing further can be done to a final judgment
except to execute it. (Milagros Salting vs. John Velez and
Clarissa R. Velez, G.R. No. 181930, January 10, 2011)

c) P etitio n for certiorari:

Q: Is certio rari available in case o f ju d g m en t by default?

A: Yes, certiorari is the more adequate speedy remedy in
case of judgment by default since the defending party has
no opportunity to present evidence, and therefore there is
nothing to review on the evidence on the part of defendant.

Case Law:

It has also been held that while, as a general rule,

certiorari may not be availed of where an appeal is available
and an appeal lies from a judgment by default, nevertheless
if there was grave abuse of discretion on the part of the trial
622 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

court, the special civil action of certiorari may be availed of

by the aggrieved party as this is an exception to said general
rule. Certiorari would provide a more speedy and adequate
remedy since the aggrieved party in a default judgment hud no
opportunity to adduce evidence in the courts, hence on appeal
only the self-serving evidence presented by the plaintiff in the
ex parte reception thereof would be considered.” (Continental
Leaf Tobacco [Phil.], Inc. vs. Court o f Appeals, et al., G.R. No.
69243, November 22, 1985)

d) C ollateral A ttack:

Q: How to m ake a co llateral a tta c k on th e ju d g m en t?

A: A collateral attack is made when, in another action to
obtain a different relief, an attack on the judgment is made
as an incident in said action.

Case Law:
A collateral attack is made when, in another action to
obtain a different relief, an attack on the judgment is made
as an incident in said action. This is proper only when
the judgment, on its face, is null and void, as where it is
patent that the court which rendered said judgment has no
jurisdiction. (Co vs. Court o f Appeals, 196 SCRA 705)
S ample F orm No. 3; Morion To S et Aside J udomeht By Default
(Sec. 3 r R ule 9)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h ___
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
 CHAPTER V 623
RULE 9: EFFECT OF FAILURE TO PLEAD

MR. Y,
Defendant,
x ------------------------- x

MOTION TO SET ASIDE JUDGMENT BY DEFAULT

COMES NOW, th e defendant, through the undersigned

counsel and u n to this Honorable Court, m ost avers:
1. That defendant received a copy of the Ju dgm ent by
Default relative to the above-entitled case;
2. That the said judgm ent by default was obtained by
the plaintiff through FRAUD, since the true facts of the case
was th a t on F e b ru a ry _, 2005, plaintiff went to the house
of the defendant and informed him th a t he will no longer
continue with the prosecution of the case, and ju s t ignore
the com plaint he received, and not attend any hearing of the
said case;
3. That through the representation of the plaintiff,
defendant did not file any answ er anymore, and ju s t ignored
the notices he received, only to be surprised th a t he was
declared in default upon receipt of the Order of the court,
and subsequently received a Judgm ent by Default.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court th a t the
Judgm ent 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.
O ther relief and rem edies as may be deemed ju s t and
equitable u n d er the prem ises are likewise prayed for.
Manila, for Pasig City, March 30, 2020.

YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 5 1 0 2 8 3 /2 -5 -2 0 /Mia.
PTR NO. 3 6 4 7 9 8 2 /1-22-20/M la.
624 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MCLE Compliance No. VI 4487/1-8-18

Roll No. 38599
Tel. No. 927-9278
VERIFICATION

REPUBLIC OF THE PHILIPPINES)

CITY OF MANILA ) S.S.
I, MR. Y, of legal age, Filipino citizen, married, and
resident of #1136-A A. Maceda Street, Sampaloc, Manila,
after having been duly sworn to in accordance with law do
hereby depose and say:
1. That I am the defendant in the above-entitled case;
2. That I have caused the preparation of the foregoing
Motion to Set Aside Judgment by Default and have read the
allegations contained therein;
3. The allegations in the said complaint are true and
correct of my own knowledge and authentic records.
IN WITNESS WHEREOF, I have hereunto affixed my
signature this_day of March 2020, in the City of Manila.
MR. Y

SUBSCRIBED AND SWORN to before me th is______

day of March 2020, in the City of Manila, affiant exhibiting
to me his Passport No. _______________ issued at
___________ on____________ .
Doc. No.____;
Page No.___ ;
Book No.___ ;
Series of 2020.
NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETI NGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court o n ____________ ,
2020, at 2:00 p.m.
 CHAPTER V 625
RULE 9: EFFECT OF FAILURE TO PLEAD

HECTOR A. YULO
CC: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
Room 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd cor. Sta. Monica St.,
Erm ita, Manila

EXPLANATION OF SERVICE
Copy of the Motion to Set Aside Ju dgm ent by Default
was served to the counsel for the plaintiff by registered mail
due to tim e an d distance constraints, and for lack of the
undersigned’s staff who can serve the sam e in person.
HECTOR A. YULO
AFFIDAVIT OF MERIT
REPUBLIC OF THE PHILIPPINES)
IN THE CITY OF MANILA ) S.S.
I, MR. Y, of legal age, Filipino citizen, m arried, and
resident of #41 A. M aceda Street, Sampaloc, Manila, after
having duly sworn to in accordance with law do hereby
depose and say:
1. That I am the defendant in the above-entitled case;
2. That on F e b ru a ry _, 2020, 1 received a copy of the
Sum m ons relative to the above-entitled case;
3. That on February _, 2020, plaintiff went to our
house and informed me th a t he will no longer continue with
the prosecution of the case, and ju s t ignore the com plaint I
will receive, and not atten d any hearing of the said case;
4. T hat through the representation of the plaintiff, I did
not file any answ er anym ore, and ju s t ignored the notices I
received, only to be surprised th a t I was declared in default
upon receipt of the O rder of the Court;
5. That said plaintiff is guilty of fraud and prevented
me from defending myself in the above case, and to subm it
the appropriate pleadings and evidence;
626 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 it
may serve.
IN WITNESS WHEREOF, I have hereunto affixed
my signature this 30th day of March 2020, in the City of
Manila.
MR. Y
SUBSCRIBED AND SWORN to before me this____ day
of March 2020, in the City of Manila, affiant exhibiting to me
his Passport No.___________ issued a t ____________ on

Doc. No.____;
Page No.____;
Book No.____;
Series of 2020.
 CHAPTER VI

RULE 10: AMENDED AND SUPPLEMENTAL

PLEADINGS

1. A m endm ents in General:

Sec. 1, Rule 10 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on amendments of pleadings in general. It states
that:
“Sec. 1. Am endm ents in g e n e ra l — Pleadings
m ay be am ended by adding or striking out an allegation
or th e nam e o f any party, or by correcting a m istake
in th e nam e o f a party or a m istaken or inadequate
allegations or description in any other resp ect, so that
th e actual m erits o f th e controversy m ay be speedily
be determ ined, w ithout regard to tech n ica lities, and
th e m ost expeditious and inexpensive m anner, (la )”

COMMENTS
Q: W hat is am en d m en t?
A: Amendment is an act of adding, changing, substituting,
or omitting something from a pleading, or instrument. (Cuenco
vs. Laya, L-31252, December 22, 1969, 30 SCRA 756)

Q: How will am en d m en t be m ade?

A: Pleadings may be amended in the following manner, to
wit:
1) Adding or striking out an allegation or the name of
any party; or

627
628 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) By correcting a mistake in the name of a party or

a mistaken 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,
in the most expeditious and inexpensive manner.

Case Law:

Under Sec. 1, Rule 10 of the Rules of Court, an amendment

is done by adding or striking out an allegation or the name of
any party, or by correcting a mistake in the name of a party
or a mistaken or inadequate allegation or description in any
other respect. (Air Ads Incorporated vs. Tagum Agricultural
Development Corporation [TADECO], G.R. No. 160736, March
23, 2011)
Q: Can am en d m en t be m ade to s e t up a cause of a ctio n
n o t ex isting a t th e tim e o f th e filing o f th e co m p lain t?
A: No. If 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. If no right existed at the time the action was
commenced.

Case Law:

Rule 10 of the 1997 Revised Rules of Court allows the

parties to amend their pleadings (a) by adding or striking
out an allegation or a party’s name; or (b) by correcting a
mistake in the name of a party or rectifying a mistaken or an
inadequate allegation or description in the pleadings for the
purpose of determining the actual merits of the controversy
in the most inexpensive and expeditious manner.
The prevailing rule on the amendment of pleadings is
one of liberality, with the end of obtaining substantial justice
for the parties. However, the option of a party-litigant to
amend a pleading is not without limitation. If 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. If no
right existed at the time the action was commenced, the suit
cannot be maintained, even if the right of action may have
accrued thereafter. (Central Bank Board o f Liquidators vs.
 CHAPTER VI 629
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Banco Filipino Savings and Mortgage Bank, G.R. No. 173399,

February 21, 2017)
Q: W hat are th e k inds of am en d m en t u n d er th e new
rules?
A: The kinds of amendment under the rules are as follows,
to wit:
a) Amendment as a matter of right;
b) Amendment by leave of court;
c) Substantial amendment;
d) Formal amendment.

2. A m endm ents as a M atter o f Right:

Sec. 2, Rule 10 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on amendment of pleading as a matter of right. It
states that:
“Sec. 2. Am endm ents a s a m a tter o f right. —
A party m ay am end h is pleading once as a m atter
o f right at any tim e before a responsive pleading is
served or, in th e case o f a reply, at any tim e w ithin
te n (10) calendar days after it is served. (2a)n

COMMENTS
Q: W hen is am en d m en t a m a tte r o f rig h t?
A: A party may amend his pleading once as a 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.

Q: Can th e pleading be am ended as a m a tte r of right

even if th e defen d an t files a m otion to dism iss?
A: Yes, the plaintiff may amend his complaint once as a
matter of right before any responsive pleading is filed and
serve and a motion to dismiss is not a responsive pleading.
630 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The plaintiff may amend his complaint once as a matter

of right before any responsive pleading is filed and served.
Responsive pleading are those which seeks affirmative relief
and/or set up defenses, like an answer. A motion to dismiss
is not a responsive pleading. A m o tio n to dism iss is n o t a
responsive pleading. Thus, the court did not err in admit­
ting petitioner’s amended complaint, respondents not hav­
ing answered yet the original complaints when the amended
complaint was filed. (Irene Marcos Araneta vs. Court o f Ap­
peals, et a l, G.R. No. 154096, August 22, 2008)

Q: Would am en d m en t still available if th e m otion to

dism iss is already su b m itted for reso lu tio n ?
A: Yes, amendment of the complaint still available even if
a motion to dismiss is filed or it is submitted for resolution
since a motion to dismiss is not a responsive pleading.

Case Law:

Even after a motion to dismiss has been filed by defendant

(Paeste vs. Jaurigue, 94 Phil. 179) or such motion has been
submitted for decision (Republic vs. Hao, L-16667, January
30, 1962), the plaintiff can still amend his complaint as a
matter of right, since a motion to dismiss is not a responsive
pleading within this rule. An error by mandamus. (Breslin, et
al. vs. Luzon Stevedoring Co., et al., 84 Phil. 618; Ong Peng vs.
Custodio, L-14911, March 25, 1961; cf, Dauden-Hemandez
vs. De los Angeles, L-27010, April 30, 1969)
Q: Would am en d m en t s till be available if th e order of
dism issal h as been issu ed ?
A: Amendment of the complaint is still available even if an
order of dismissal has been issued provided that the motion
to amend is filed before the finality of dismissal order.
 CHAPTER VI 631
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Case Law:

Amendment of the complaint may be allowed even if

an order for its dismissal has been issued as long as the
motion to amend is filed before the dismissal order became
final. (Constantino vs. Reyes, L-16853, June 29, 1963) An
amended answer may also be allowed even after the case
had been set for trial on the merits if the purpose of the
amendments is to submit the real matter in dispute without
intent to delay the action. (Paman vs. Diaz, et al., G.R. No.
59582, August 26, 1982; cf., Sec. 3 o f this Rule)

Q: W hat is th e rem edy in case o f denial of th e m otion to

am end as a m a tte r o f rig h t?
A: 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, 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.

Q: Is service of sum m ons required in case of am en d m en t

o f th e pleading?
A: Service of summons is required only in case of an
amendment when the court has not yet acquired jurisdiction
over the person of the defendant, nor filed his answer, neither
he voluntarily submitted to the jurisdiction of the court.

Case Law:

Although it is well-settled that an amended pleading

supersedes the original one, and is no longer considered part
of the record, it does not follow that new summons should be
served. Where the defendant has already appeared before the
court by virtue of the summons in the original complaint (as
when defendant had filed a motion to dismiss or an answer),
the amended complaint may be served upon him without the
need for another summons if new causes of action are alleged
in the amendment. Conversely, a defendant who has not yet
appeared must be served with summons. It is not therefore,
the change of the cause of action that gives rise to the need
632 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

to serve new summons. (Vlason Enterprises Corporation vs.

Court o f Appeals, 310 SCRA 26)
Q: Is certificatio n ag ain st forum shopping required in
case o f am en d m en t?
A: Certification of against forum shopping is required only
in case of substantial amendment.
S am ple F orm N o . 1 : M otion T o A im itn C o mplaint ( S e c . 2 . R ule
m
REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO.____________
For: Sum of Money with Damages
MR. Y,
Defendant.
x ------------------------x
MOTION TO AMEND COMPLAINT
COMES NOW, th e plaintiff, through the undersigned
counsel and unto this Honorable Court, most avers:
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
 CHAPTER VI 633
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

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.
Manila, for Pasig City, February 13, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the Plaintiff
Room 1408 Ermita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Ermita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 89329816/2-26-20/Mia.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 521-6137
CC: YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
NOTICE OF HEARING
TO: ATTY. HECTOR A. YULO
Counsel for Defendant
GREETI NGS:
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on ____________,
2020, at 2:00 p.m.
FERDINAND A. TAN
EXPLANATION OF SERVICE
Copy of the Motion to Amend Complaint was served to
the defendant by registered mail due to time and distance
constraints, and for lack of the undersigned’s staff who can
serve the same in person.
FERDINAND A. TAN
634 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. A m endm ents by Leave o f Court:

Sec. 3, Rule 10 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on amendment of pleading by leave of court. It states
that:
"Sec. 3. A m endm ents by leave o f court. — Except
as provided in th e next preceding S ection , substantial
am endm ents m ay be m ade only upon leave o f court.
But su ch leave shall be refused if it appears to th e
court th at th e m otion was m ade w ith in ten t to delay
or confer jurisdiction on th e court, or th e pleading
stated no cause o f a ction from th e beginning w hich
could be am ended. Orders o f th e court upon th e
m atters provided in th is S ection shall be m ade upon
m otion filed in court, and after n o tice to th e adverse
party, and an opportunity to be heard. (3a)”

COMMENTS
Q: W hen is am en d m en t w ith leave o f c o u rt available?
A: Under the above cited provision of the rules, “Except as
provided in the next preceding Section, substantial amendments
may be made only upon leave of court.”

Q: How will an am en d m en t by leave of c o u rt be m ade?

A: Except as provided in the next preceding Section,
substantial amendments may be made only upon leave of
court.

Q: W hat is su b stan tial am en d m en t?

A: It is a kind of amendment which changes the plaintiffs
cause of action is technically a new complaint or adding new
parties.
Q: W hat is th e rule on th e app licatio n of am en d m en t
w ith leave o f c o u rt?
A: Amendment with leave of court should be applied with
liberality by reason of public policy.
 CHAPTER VI 635
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Case Law:

As a matter of judicial policy, courts are impelled to treat

motions for leave to file amended pleadings with liberality.
This is especially true when a motion for leave is filed during
the early stages of proceedings or, at least, before trial. Our
case law had long taught that bona fide amendments to
pleadings should be allowed in the interest of justice so that
every case may, so far as possible, be determined on its real
facts and the multiplicity of suits thus be prevented. Hence,
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. Once a court grants leave to file an
amended pleading, the same becomes binding and will not
be disturbed on appeal unless it appears that the court had
abused its discretion. (Aderito Z. Yujuico vs. United Resources
Asset Management, Inc., et al., G.R. No. 211113, June 29,
2015)

Q: W hat are th e grounds for th e denial o f leave o f co u rt

by th e co u rt u n d er th e am en d ed ru les?
A: Such leave shall be refused by the court if it appears
that:
1) The motion was made with intent to delay;
2) It is intended to confer jurisdiction on the court; or
3) The pleading stated no cause of action from the
beginning which could be amended.
Q: W hat are th e req u irem en ts for th e issu an ce o f an
O rder to am end w ith leave o f c o u rt u n d er th e am ended
rules?
A: Orders of the court upon the matters provided in this
Section shall be made:
1) Upon motion filed in court;
2) After notice to the adverse party; and
3) An opportunity to be heard.
636 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e lim itatio n s on th e am en d m en t as

a m a tte r o f d iscretio n o r a fte r th e filing of th e answ er
w hen?
A: 1) It should not substantially change the cause of
action;
2) It shall not alter the theory of the case; or
3) It was made to delay the action.
Q: W hat are th e lim itatio n s on th e g ran t of am en d m en t
by leave of c o u rt?
A: The granting of leave to file amended pleading is subject
only to the limitations that the amendments should not
substantially change the cause of action or alter the theory of
the case; or it was made to delay the action.

Case Law:

The granting of leave to file amended pleading is a

m atter particularly addressed to the sound discretion of
the trial court; and that discretion is broad, su b je c t only
to th e lim ita tio n s t h a t th e a m e n d m e n ts sh o u ld n o t
s u b sta n tia lly ch an g e th e cau se o f a c tio n or a lte r th e
th e o ry o f th e case; o r i t w as m ade to delay th e actio n .
Nevertheless, as enunciated in Valenzuela vs. Court of
Appeals, 416 Phil. 289 (2001), even if the amendment
substantially alters the cause of action or defense, such
amendment could still be allowed when it is sought to serve
the higher interest of substantial justice; prevent delay; and
secure a ju st, speedy, and inexpensive disposition of action
and proceedings. (Henry Ching Tiu vs. Philippine Bank of
Communications, G.R. No. 151932, August 19, 2009)

Q: W hen is su b stan tial change or a lte ra tio n in th e cause

of actio n o r defense allow ed? (Bar E xam ination 2018)
A: Amendments sought to be made shall serve the higher
interests 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.
 CHAPTER VI 637
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Case Law:

The Court has emphasized the import of Sec. 3, Rule 10

of the 1997 Rules of Civil Procedure in Valenzuela vs. Court
o f Appeals, thus:
“Interestingly, Sec. 3, Rule 10 of the 1997 Rules of
Civil Procedure amended the former rule in such m anner
th at the phrase ‘or th at the cause of action or defense is
substantially altered’ was stricken-off and not retained
in the new rules. T he c le a r im p o rt o f su c h a m e n d m e n t
in S ec. 3, R ule 10 is t h a t u n d e r th e new ru le s, ‘th e
a m e n d m e n t m ay (now) s u b s ta n tia lly a lte r th e cau se
o f a c tio n o r d e fe n se .’ This should only be true, however,
when despite a substantial change or alteration in the
cause of action or defense, the am endm ents sought to be
made shall serve the higher interests of substantial justice,
and prevent delay and equally promote the laudable
objective of the rules which is to secure a ‘j u st, speedy and
inexpensive disposition of every action and proceeding.”’
(Philippine Ports Authority vs. William Gothong and Aboitiz
[WG&A], Inc., G.R. No. 158401, January 28, 2008)
Q: W hat is th e possible rem edy in case of denial of th e
m o tio n for leave to am en d ?
A: 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, since the order denying the motion
is merely discretionaiy and for being interlocutory which is
not appealable under Sec. 1(b) of Rule 41, and if the denial is
tainted with grave abuse of discretion amounting to lack or in
excess of jurisdiction.
638 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Sample F orm No. 2; Motion F or Leave Of C o u rt To Amkito

Complaint (Sec. 3. R ule 10)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant,
x -------------------------- x
MOTION FOR LEAVE OF COURT TO AMEND
COMPLAINT

COMES NOW, th e plaintiff, through the undersigned

counsel and unto this Honorable Court, m ost respectfully
avers:
1. That through inadvertence, plaintiff failed to include
in his Complaint the allegations of damages, attorney’s fees
and interest based on the agreem ent between him and the
defendant;
2. That copy of the com plaint was already served to the
defendant, and the latter has already filed his answer;
3. That, to the end th a t the real m atter in dispute and
all m atters in the action in dispute between the parties
may, as far as possible, be completely determ ined in this
proceeding, it is necessary and expedient th a t plaintiff
with proper leave from this Court th at he be allowed to
am end his Complaint, including therein the aforementioned
allegations. Copy o f th e Amended Complaint is hereto
attached as Annex “A” hereof.
WHEREFORE, prem ises considered, with prior leave it
is m ost respectfully prayed of this Honorable Court th at the
am ended Complaint attached herewith as Annex “A” of this
motion be adm itted.
 CHAPTER VI 639
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

O ther relief and rem edies as m ay be deem ed ju s t and

equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, February 13, 2020.

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the Plaintiff
Room 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 0 1 4 5 10/2-24-16
PTR NO. 8939861/2-26-20/M la.
Roll No. 38488
MCLE Exem ption No. VI 0 0 2 142/4-8-19
Tel. No. 247-1757

NOTICE OF HEARING
TO: MR. Y
Defendant
GREETINGS:
Please subm it the foregoing m otion for th e consideration
a n d approval of the Honorable C ourt on F e b ru a ry _2020,
a t 2:00 p.m.
FERDINAND A. TAN
CC: MR. Y
Defendant
#41 D apitan Street
Sam paloc, M anila
EXPLANATION OF SERVICE

Copy of the Motion for Leave of Court to Amend

Com plaint was served to th e defendant by registered mail
due to time a n d distance constraints, and for lack of the
undersigned’s staff who can serve the sam e in person.

FERDINAND A. TAN
640 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

4. Form al A m endm ents:

Sec. 4, Rule 10 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on formal amendment of pleading. It states that:
“Sec. 4. Form al am en dm en t. — A defect in th e
designation o f th e parties and other clearly clerical or
typographical errors m ay be sum marily corrected by
the court at any stage o f th e action, at its initiative or
on m otion, provided no prejudice is caused thereby to
th e adverse party. (4)"

COMMENTS
Q: W hat is th e rule on form al am endm ent of pleading?
A: A defect in the designation of the parties and other clearly
clerical or typographical errors may be summarily corrected
by the court at any stage of the action, at its initiative or
on motion, provided no prejudice is caused thereby to the
adverse party.

5. No A m endm ent N ecessary to Conform to or A uthorize I

[ P resen tatio n of Evidence (Bar E xam ination 2013): |

Sec. 5, Rule 10 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on amendment of pleading to conform or authorize
presentation of evidence. It states that:
"Sec. 5. No a m en dm en t n e c e ssa ry to conform
to o r a u th o rize p re se n ta tio n o f evidence. — When
Issues not raised by th e pleadings are tried with the
express or im plied con sen t o f th e parties, th ey shall
be treated in all respects as if th ey had been raised
in th e pleadings. No am endm ent o f such pleadings
deem ed am ended is necessary to cause them to
conform to th e evidence. (5a)”
 CHAPTER VI 641
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

COMMENTS
Q: Is am en d m en t o f th e pleading required to conform or
au th o rize p re se n ta tio n o f ev idence?
A: No. as expressly mandated by the above sited rule that,
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. No
amendment of such pleadings deemed amended is necessary
to cause them to conform to the evidence.

6. S upplem ental Pleadings:

Sec. 6, Rule 10 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on supplemental pleading. It states that:
HSec. 6. Supplem ental pleadin g. — Upon m otion
o f a party th e court m ay, upon reasonable n o tice and
upon such term s as are ju st, perm it him to serve a
supplem ental pleading settin g forth tran saction s, o c­
currences or ev en ts w hich have happened sin ce th e
date of th e pleading sought to be supplem ented. The
adverse party m ay plead thereto w ithin ten (10) cal­
endar days from n o tice o f th e order adm itting th e
supplem ental pleading.” (6a)

COMMENTS
Q: W hen can su p p lem en tal pleading be filed?
A: Upon motion of a party, the court may, upon reasonable
notice and upon such terms as are just, permit him or her
to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of
the pleading sought to be supplemented.

|| Case L a w ^

Under Section 1, Rule XV of the 2009 COA Rules of

Procedure, the Rules of Court applies suppletorily in the
642 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

absence of any applicable provision. In this regard, Section

6, Rule 10 of the Rules of Court provides the procedure to be
observed in filing supplemental pleadings, to wit:
SEC. 6. Supplemental Pleadings. — 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 transactions, occurrences or events
which have happened since the date of the pleading sought
to be supplemented. The adverse party may plead thereto
within ten (10) days from notice of the order admitting the
supplemental pleading. (Felix Gochan and Sons Realty
Corporation vs Commission on Audit and City Government of
Cebu, G.R. No. 223228, April 10, 2019)
Q: Can a su pplem ental pleading be filed to raise new
and different cau ses o f actio n ?
A: No. Filing of supplemental pleading raising new and
different causes of action that arose after the filing of the
original complaint which has no relation whatsoever to the
causes of action in the original complaint is not allowed.

|_ C a s ^ L a w J

Rule 10 of the 1997 Revised Rules of Court allows

the parties to supplement their pleadings by setting forth
transactions, occurrences, or events that happened since the
date of the pleading sought to be supplemented.
However, the option of a party-litigant to supplement a
pleading is not without limitation. A supplemental pleading
only serves to bolster or add something to the primary
pleading. Its usual function is to set up new facts that justify,
enlarge, or change the kind of relief sought with respect to the
same subject matter as that of the original complaint.
For these reasons, whether viewed as an amendment or a
supplement to the original Complaint, the Second Amended/
Supplemental Complaint should not have been admitted.
(Central Bank Board of Liquidators vs. Banco Filipino Savings
and Mortgage Bank, G.R. No. 173399, February 21, 2017)
 CHAPTER VI 643
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

Q: W hat is th e office o f a su p p lem en tal pleading?

A: 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.

Case Law:
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. (Penta Capital Investment
Corp. vs. Makilito B. Mahinay, G.R. No. 171736, July 5, 2010)

Q: W hat is th e n a tu re o f th e adm ission of supplem ental

pleading?
A: With the use of the word “may” in the rules, the admission
of supplemental pleading is discretionary upon the court.

Case Law:

Under Sec. 6, Rule 10 of the 1997 Rules of Civil

Procedure, as amended, governing supplemental pleadings,
the court “may” admit supplemental pleadings, such as the
supplemental petition filed by respondent before the appellate
court, but the admission of these pleadings remains in the
sound discretion of the court. Nevertheless, we have already
found no credence in respondent’s claim that petitioner is a
corporate officer, consequently, the alleged lack of jurisdiction
asserted by respondent in the supplemental petition is
bereft of merit. (Ma. Mercedes L. Barba vs. Liceo De Cagayan
University, G.R. No. 193857, November 28, 2012)
Q: W hat is th e n a tu re an d purpose of su p p lem en tal
pleading?
A: A supplemental pleading only serves to bolster or add
something to the primary pleading. A supplement exists side
by side with the original. It does not replace that which it
supplements.
644 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

As its very name denotes, a supplemental pleading only

serves to bolster or add something to the primary pleading. A
supplement exists side by side with the original. It does not
replace that which it supplements. Moreover, a supplemental
pleading assumes that the original pleading 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.
The purpose of the supplemental pleading is to bring
into the records new facts which will enlarge or change the
kind of relief to which the plaintiff is entitled; hence, any
supplemental facts which further develop the original right
of action, or extend to vary the relief, are available by way
of supplemental complaint even though they themselves
constitute a right of action. (Felix Gochan and Sons Realty
Corporation vs Commission on Audit and City Government of
Cebu, G.R. No. 223228, April 10, 2019)

Q: W hat is th e rem edy o f th e adverse p arty ?

A: The adverse party may plead thereto within 10 days from
notice of the order admitting the supplemental pleading.
Q: D istinctions betw een am ended and supplem ental
pleading?

Amended Pleading Supplem ental Pleading

a) The filing of an am ended a) The filing of a supplem ental

pleading may either be as pleading is always with
a m atter of right or with leave of court.
leave of court.
 CHAPTER VI 645
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

b) Am ended pleading alleges b) Supplem ental pleading

facts th a t occurred before
the filing of the original
pleading.
c) Am ended pleading s u p e r­
sedes the original pleading,
it am ends.
alleges facts occurring after
the filing of the original
pleading.
c) Supplem ental pleading
does not supersedes the
original pleading b u t a s ­
sum es th a t the original
pleading is to stand. (Rule
10, Secs. 2, 3, and 6; Del-
bros Hotel Corp. vs. LAC, et
al., G.R. No. L-72566, April
12, 1988)

Sec. 7, Rule 10 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rule on the requirements for the filing of amended
pleading. It states that:
“Sec. 7. Filing o f am ended p leadin gs. — When
any pleading is am ended, a new copy o f th e entire
pleading, incorporating th e am en dm ents, w hich shall
be indicated by appropriate m arks, shall be filed. (7)”

COM M ENTS
Q: W hat are th e req u irem en ts in th e filing of an am ended
pleading?
A: When any pleading is amended and filed, it shall comply
with the following requirements:
1) A new copy of the entire pleading;
2) Incorporating the amendments; and
3) It shall be indicated by appropriate marks, shall be
filed.
646 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8. Effect o f A m ended Pleadings:

Sec. 8, Rule 10 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the effects of amended pleadings. It states that:
“Sec. 8. E ffects o f am ended pleadin g. — An
am ended pleading supersed es th e pleading th at it
am ends. However, ad m issions in superseded pleadings
m ay be offered in evid en ce against th e pleader, and
claim s or d efen ses alleged therein n o t incorporated in
th e am ended pleading shall be deem ed w aived.” (8a)

COMMENTS
Q: W hat are th e effects o f th e am en d m en t of a pleading?
A: An amendment of a pleading shall have the following
effects, to wit:
1) It supersedes the pleading that it amends;
2) Admissions in superseded pleadings may be offered
in evidence against the pleader; and
3) Claims or defenses alleged therein not incorporated
in the amended pleading shall be deemed waived.

Q: W hat are th e o th e r effects o f th e am en d m en t of th e

pleading?
A: An amended pleading shall also have the following
effects, to wit:
1) The admissions made in the original pleading shall
be treated as an extra-judicial admission which shall be
alleged and proved;
2) Any ancillary order/remedy issued in the original
pleading shall be deemed vacated or lifted;
3) It requires another certification of non-forum
shopping if it is a substantial amendment of the original
complaint; and
 CHAPTER VI 647
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS

4) 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.

Q: W hat is th e te s t to d eterm in e w h eth er service of

sum m ons is required in case of am en d m en t of a pleading?
A: Where the defendant has already appeared before the
court by virtue of the summons in the original complaint the
amended complaint may be served upon him without the
need for another summons if new causes of action are alleged
in the amendment. Conversely, a defendant who has not yet
appeared must be served with summons.

Case Law:

Although it is well-settled that an amended pleading

supersedes the original one, and is no longer considered part
of the record, it does not follow that new summons should
be served. W here th e defen d an t h as already appeared
before th e co u rt by v irtu e of th e sum m ons in th e original
com plaint (as w hen d efen d an t h ad filed a m otion to
dism iss or an answer), th e am ended com plaint m ay be
served upon him w ith o u t th e need for a n o th e r sum m ons
if new cau ses o f actio n are alleged in th e am endm ent.
Conversely, a defen d an t who h as n o t y e t appeared m u st
be served w ith sum m ons. It is not therefore, the change
of the cause of action that gives rise to the need to serve
new summons. (Vlason Enterprises Corporation vs. Court of
Appeals, 310 SCRA 26)
 CHAPTER VII

RULE 11: WHEN TO FILE RESPONSIVE

PLEADINGS

1. Answer to th e Com plaint:

Sec. 1, Rule 11 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the period of filing an answer to the complaint. It states that:
“Sec. 1. Answer to th e com plaint . —The defendant
shall file his or her answer to th e com plaint w ithin
th irty (30) calendar days after service o f sum m ons,
u n less a different period is fixed by th e court, (la )”

COMMENTS
Q: When to file d efen d an t’s answ er?
A: The defendant shall file his or her answer to the complaint
within th irty (30) calendar days after service of sum m ons,
unless a different period is fixed by the court.

Q: Is publication o f notice of hearing to file answ er

necessary?
A: No. There is nothing in the rules that authorizes
publication of a notice of hearing to file answer.

Case Law:

There is nothing in the rules that authorizes publication

of a notice of hearing to file answer. What is authorized to

648
 CHAPTER VII 649
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

be published axe: (1) summons, and (2) final orders and

judgments, x x x The above-quoted provision cannot be
used to justify the trial court’s action in authorizing service
by publication. Firstly, what was published was not a final
order or judgment but a simple order or notice to file answer.
Secondly, even granting that the notice to file answer can be
served by publication, it is explicit in the Rule that publication
is allowed only if the defendant-appellant was summoned by
publication. The record is clear that defendants-appellants
were not summoned by publication. (Rogelio Aberca, et al. vs.
Maj. Gen. Fabian Ver, et al., G.R. No. 166216, March 14, 2012)

a) Period to file answ er under O ther provisions of

th e Rules:

d file answ er in case of Interrogatories

u n d er Rule 25:
Q: When to file an answ er in case of Interrogatories
u nd er Rule 25?
A: 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.

Procedural Basis:

Sec. 2, Rule 25 of th e 1997 Rules of Civil Procedure

provides for the rule on the period of filing of answer to
interrogatories. It provides that:
"Sec. 2. Answer to interrogatories. — The
interrogatories shall be answered fully in writing and
shall be signed and sworn to by th e person making
them . The party upon whom th e interrogatories have
been served shall file and serve a copy o f th e answers
on th e party subm itting th e Interrogatories within
fifteen (15) days after service thereof, u n less the
court, on m otion and for good cause shown, extends
or shortens th e tim e.”
650 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) Period to file answ er in case of C om plaint for

In terp lead er u n d er Rule 62:

Q: When to file an answ er in a com plaint for In terpleader

u n d er Rule 6 2 ?
A: Each claimant shall file his answer setting forth his claim
within fifteen (15) days from service of the summons upon
him, serving a copy thereof upon each of the other conflicting
claimants.

[[^Procedural BasisT

Sec. 5, Rule 62 of th e Rules on Civil P rocedure provides

for the period of filing an answer and other pleadings, and
declaration of default. It states that:
“Sec. 5. Answer a n d oth er pleadin gs. — Each
claim ant shall file h is answer settin g forth h is claim
w ithin fifteen (15) days from service o f th e sum m ons
upon him , serving a copy th ereof upon each o f th e
other con flicting claim ants who m ay file their reply
thereto as provided by th e se Rules. If any claim ant
fails to plead w ithin th e tim e herein fixed, th e court
m ay, on m otion, declare him in default and thereafter
render judgm ent barring him from any claim in
respect to th e subject m atter.
The parties in an interpleader action m ay file
counterclaim s, cross-claim s, third-party com plaints
and responsive pleadings th ereto, as provided by
th e se R ules.”

3) Period to file answ er in case of C om plaint for

E xpropriation u n d er Rule 67:__________________

Q: When to file an answ er in a com plaint for expropriation

u n d er Rule 67?
A: If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense to
the taking of his property, he shall serve his omnibus answer
within the time stated in the summons.
 CHAPTER VII 651
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

Procedural Basis:

Sec. 3, Rule 67 o f th e 1997 Rules of Civil Procedure

provides for the rule on the period to file answer to the
complaint for expropriation. It states that:

“Sec. 3. Defenses and objections. — x x x

If a defendant has any objection to th e filing o f
or th e allegations in th e com plaint, or any objection
or defense to the taking o f h is property, he shall serve
his answer w ithin th e tim e stated in th e sum m ons.
The answer shall specifically designate or identify
th e property in w hich he claim s to have an in terest,
sta te the nature and exten t o f th e in terest claim ed,
and adduce all his objections and d efen ses to the
taking o f h is property. No counterclaim , cross-claim
or third-party com plaint shall be alleged or allowed In
th e answer or any subsequent pleading.

4) Period to file a verified response in Small Claims

Case:

Q: When to file a response u n d er th e 2016 Revised Rules

on Sm all Claim Cases?
A: The defendant shall file with the court and serve on the
plaintiff a duly accomplished and verified response within
a non-extendible period of ten (10) days from receipts of
summons.

Procedural Basis:

Sec. 11 o f th e Revised 2016 Rules of Procedure of

Small Claim s Cases (A.M. No. 08-8-7, effective O ctober
27, 2009) provides for the period of the filing of a response in
small claims cases. It states that:
“Sec. 11. Response. — The defendant shall
file with th e court and serve on th e plaintiff a duly
accom plished and verified R esponse w ithin a non­
extendible period o f ten (10) days from receipts o f
652 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

sum m ons. The response shall be accom panied by a

certified photocopies o f docum ents, as well as the
affidavits o f w itn esses and other evidence in support
thereof. No evid en ce shall be allowed during the
hearing w hich was not attached to or subm itted
together with th e R esponse, u n less for good cause
shown for th e additional evidence.
The grounds for dism issal o f th e claim , under
Rule 16 o f th e Rules o f Court should be pleaded.”

5) Period to file answ er in case o f Sum m ary Procedure:

Q: When to file an answ er u n d er th e Rules on Sum m ary

P rocedure?
A: Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff.

Procedural Basis:

Sec. 5 of th e Rules on Sum m ary Procedure provides

for the period of the filing of an answer to the complaint. It
states that:
“Sec. 5. Answer. — Within ten (10) days from
service o f sum m ons, the defendant shall file his
answer to th e com plaint and serve a copy thereof on
th e plaintiff. Affirmative and negative defen ses not
pleaded therein shall be deem ed waived, except for
lack o f jurisdiction over th e subject m atter. Cross­
claim s and com pulsory counterclaim s not asserted
in th e answer shall be considered barred. The answer
to counterclaim s or cross-claim s shall be filed and
served w ithin ten (10) days from service o f th e answer
in w hich th ey are pleaded.”

6) Period to file answ er in E nvironm ental Cases:

Q: When to file an answ er u n d er th e Rules on Environ­

m ental Cases?
 CHAPTER VII 653
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

A: Within fifteen (15) days from receipt of summons, the

defendant shall file a verified answer to the complaint and
serve a copy thereof to the plaintiff.

Procedural Basis:

Sec. 14 of th e Rules of Procedure for Environm ental

Cases (A.M. No. 09-6-8-SC, effective April 29, 2010)
provides for the period of the filing of an answer to the
complaint. It states that:
"Sec. 14. Verified answer. — Within fifteen (15)
days from receipt of sum m ons, the defendant shall file
a verified answer to th e complaint and serve a copy
thereof to th e plaintiff. The defendant shall attach
affidavits of w itnesses, reports, studies o f experts and
all evidence in support o f the defense.
Affirmative and special defenses not pleaded
shall be deem ed waived except lack o f jurisdiction.
Cross-claims and compulsory counter-claim s not
asserted shall be considered barred. The answer to
counter-claim s shall be filed and served within ten
(10) days from service o f the answer in which they are
pleaded.”

b) R equirem ent of specific denial of th e m aterial

allegations in th e Complaint:

Q: What is th e requirem ent in denying th e m aterial

allegation in th e com plaint?
A: 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 or her denial.

Procedural Basis:

Sec. 10, Rule 8 of th e 1997 Rules of Civil Procedure

provides for the rule in specifically denying a material
allegation in the pleading. It states that:
654 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“S ec. 10. S p ecific d en ia l. — A d efen dant

m u st sp e c ify each m aterial alleg a tio n o f fa ct th e
tru th o f w h ich he d o e s n o t a d m it and, w h en ever
practicab le, sh all s e t forth th e su b sta n ce o f th e
m a tters upon w h ich h e r e lies to support h is
d enial. Where a d efen d an t d esires to d en y o n ly a
part o f an averm en t, h e sh all sp e c ify so m uch o f
it as is tru e and m aterial and sh a ll d en y o n ly th e
rem ainder. Where a d efen d an t is w ith o u t know ledge
or in form ation su ffic ie n t to form a b e lie f as to th e
tru th o f a m aterial averm en t m ade in th e com p lain t,
he sh all so s ta te , and th is sh all have th e e ffe c t o f a
d en ia l.”

COMMENTS

Case Law:

In this jurisdiction, only a specific denial shall be

sufficient to place into contention an alleged fact. Under
Sec. 10, Rule 8 of the Rules of Court, a specific denial of an
allegation of the complaint may be made in any of three ways,
namely: (a) a 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; (b) a defendant who
desires to deny only a part of an averment specifies so much
of it as is true and material and denies only the remainder;
and (c) a defendant who is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made in the complaint states so, which has the
effect of a denial. (Republic o f the Philippines us. Cojuangco,
et a l, G.R. No. 180702, April 12, 2011)

c) R eq u irem en t of n o t pleading th e defenses or

| objections in th e answ er:____________________

Q: W hat is th e effect o f failure to allege th e defenses or

objections in th e answ er?
A: Defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived.
 CHAPTER VII 655
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

Procedural Basis:

Sec. 1, Rule 9 o f th e 1997 Rules o f Civil Procedure

provides for the rule on waiver of defenses and objection not
raised. It states that:
uSec. 1. D efenses and objections n ot pleaded
eith er in a m otion to dism iss or in th e answer are
deem ed waived. However, when it appears from th e
pleadings or th e evid en ce on record that th e court has
no jurisdiction over th e subject m atter, th at there
is another action pending betw een th e sam e parties
for th e sam e cause, or th a t the action is barred by a
prior judgm ent or by sta tu te o f lim itation s, th e court
shall dism iss th e claim .”

S a m p le F o r m W o. 1: A n s w e r W ith C o p h te rc la im (S e c . 4, R o le 6)

Republic of the Philippines

National Capital Judicial Region
METROPOLITAN TRIAL COURT
Quezon City
B ranch XXXVI
MR. X
Plaintiff,
- versus - CIVIL CASE NO. 40865
For: Unlawful Detainer
MR. Y.
Defendant.
x -------------------------------------- x
ANSWER WITH COUNTERCLAIM
COME8 NOW, defendant, through the undersigned
counsel, and to this Honorable Court, m ost respectfully
avers:
1. Defendant denies any knowledge as regards the
personal circum stances of the plaintiff for lack of knowledge
of his identity for the reason th at the one with whom he
entered a C ontract is a certain Mr. X, neither he personally
met the said plaintiff;
656 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. Answering defendant adm its the averm ents in

paragraph 2 of the com plaint as regards th e personal
circum stance of the defendant;
3. D efendant denies any personal knowledge as regards
the ow nership of the plaintiff over the subject prem ises,
again for lack of knowledge since the one with whom he
entered with a C ontract of Lease is a certain Mr. X;
4. T hat defendant adm its th e allegations in paragraph
4 of th e Com plaint as regards the existence of C ontract of
Lease;
5. That defendant specifically deny the allegations of
the plaintiff in paragraph 5 of his Com plaint as regards the
alleged increase of rentals to P18.500.00 for being a brazen
lie, a s the tru th of the m atter is th a t the agreed rental
increase is only P16,500.00 and not P18,500.00 as claimed
by th e plaintiff through his attorney-in-fact as evidenced
by the BPI Deposit Slips dated 2005 to 2006 evidencing
paym ent of th e rentals by the defendant in the am ount
of P16.500.00 u n d e r the account of Corazon De J e s u s
(plaintiffs daughter as per advise of their attorney-in-fact
which are hereto attached a s Annexes “1” — “1-_” hereof;
6. T hat defendant specifically deny the allegations of
the plaintiff in his com plaint more particularly paragraph
6 a s regards the alleged eight (8) m onths un p aid rentals
again for being a deviation from tru th , as the tru th of the
m atter is th a t defendant h a s no back rentals to the plaintiff
as a m atter of fact he is fully paid u ntil August 15, 2011 as
evidenced by the BPI Deposit Slips dated M arch 28, 2011
and Ju ly 13, 2011 which are hereto attached a s Annexes “2”
& “3” hereof;
Further, the undersigned counsel even sent a letter Reply
to the plaintiffs Attorney-in-fact Atty. Z inform ing him th at
all th e rentals by the defendant have been fully paid until
A ugust 15, 2011, and deposited u n d e r the account of Ms. U
as agreed upon (who is the daughter of the plaintiff). Copy
of the Letter Reply is hereto attached as Annex “4 ” hereof;
7. That defendant specifically denies the averm ents of
the plaintiff in p aragraphs 7, 8 & 9 of his Com plaint for
being a concoction of tru th , as the tru th of the m atter is
th a t again defendant paid his rental u p to A ugust 15, 2011
which were deposited by him u n d e r the account of Ms. U as
 CHAPTER VII 657
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

evidenced by the BPI Deposit Slips (Annexes “2” & “3” of the
Answer).

SPECIAL AND AFFIRMATIVE DEFENSES

Defendant herein hereby adopts, incorporates and re­
pleads the foregoing allegations, and made the same as
integral parts hereof.
8. The plaintiff has no cause of action against the
herein answering defendant;
9. That defendant entered into a Contract of Lease with
a certain;
10. Also, the Honorable Court should take judicial notice
th at one of the incorporators of the plaintiff corporation is
already dead, and the three other members of the Board of
Directors are still abroad, hence, it would be quite impossible
for them to execute the said Secretary’s Certificate/Board
of Resolution if there is any, not to mention th at the same
should be authenticated by the Philippine Em bassy abroad
which is a requirem ent under the law and the rules on
evidence;
11. Defendant had been occupying the said lot for so
m any years now in the concept of an owner which she
derived from the original owner (Mr. Francis Domingo) and
which is included in the sale between them. Moreover, the
lot defendant have been occupying are Lot 99 and 100,
while the lot mentioned in the in stant Complaint is Block
3, Lot 62 which is a totally different lots. Therefore, plaintiff
has no cause of action against the defendant and the case
should be dismissed;
12. Defendant did not receive any dem and letter from
the plaintiff, neither she personally know the person who
signed the alleged registry retu rn card appended to the
complaint. Even the contents of the said dem and letter is
defective since it failed to comply with Sec. 2 of Rule 70 of
the 1997 Rules of Civil Procedure since it merely gives the
defendant an alternative remedy to vacate or pay reasonable
fee for the use of premises;
13. Due to the institution of the present unfounded
and unw arranted complaint, defendant suffered sleepless
nights, serious anxiety in which she should be awarded the
am ount of P100,000.00 as moral damages;
658 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

14. D efendant was forced to litigate an d engage, a n d did

engage, the services of the undersigned counsel for which
she com m itted to pay the su m of P25.000.00, as a n d by way
of attorney’s fees, and P3,500.00 for every hearing of the
case.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court th at, after
hearing, judgm ent be rendered:
a) Dism issing the in sta n t Complaint;
b) Ordering the plaintiff to pay the herein defendant
th e following sum s:
1. P I 00,000.00 as m oral dam ages;
2. The su m of P25,000.00 as and by way of atto rn ey ’s
fees, a n d P2.000.00 a s appearance fee for every hearing of
the case;
3. Costs of suit.
Such other relief and rem edies which m ay be deem ed
ju s t an d equitable u n d er the prem ises are likewise prayed
for.
M anila, Metro M anila for Quezon City, J a n u a ry 18,
2020.

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the D efendant
Room 1408 E rm ita center Bldg,,
1350 Roxas Blvd., cor. Sta. Monica St.
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 0 1 4 5 1 0 /2 -2 4 -1 6
PTR NO. 8 9 3 2 9 8 16/3-26-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 247-17-57
 CHAPTER VII 659
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

VERIFICATION
REPUBLIC OF THE PHILIPPINES)
IN THE CITY OF MANILA ) S.S.
I, BMMAN IGWEBUKE OBIEGBU, of legal age, Filipino
citizen, after having been duly sworn, depose and say, that:
1. That I am the defendant in the above-entitled case;
2. That I have caused the preparation of the foregoing
Answer with Counterclaim;
3. That I have read and understood the allegations
therein, and they are true and correct according to our
knowledge and belief and authentic records.
IN WITNESS WHEREOF, I have hereunto affixed my
signature this ___ day of Ja n u ary 2020, in the City of
Manila.
MR. Y
Affiant
SUBSCRIBED AND SWORN to before me t h i s __ day
of J a n u a iy 2020, a t _______________ , Philippines, affiant
exhibited his Passport/D river’s License No. __________ ,
issued a t ________________ ,o n _________________ .
NOTARY PUBLIC
Doc. N o.____ ;
Page N o.____ ;
Book N o.____ ;
Series of 2020.
Copy furnished:
1) ATTY. RICO J. SAN JUAN
Counsel for Plaintiff
Suite 129, Pacific Irvine Bldg.,
2746 Zenaida St., Brgy. Poblacion
Makati City, Metro Manila
EXPLANATION OF 8BRVICE
The above Answer was not served personally to the
plaintiff’s counsel, and service by registered mail was
resorted to due to distance and time constraints, and for
lack of the undersigned’s office personnel thereby rendering
personal service thereof inconvenient and impracticable.
FERDINAND A. TAN
660 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. Answer o f a D efendant Foreign P rivate Ju rid ical

E ntity:

Sec. 2, Rule 11 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the period of filing an answer in case of foreign juridical
entity. It states that:
“Sec. 2. A n sw er o f a d e fe n d a n t fo re ig n p r iv a te
J u rid ic a l e n tity . — Where th e defendant is a foreign
private juridical e n tity and service o f sum m ons is
m ade on th e governm ent official designated by law
to receive th e sam e, th e answer shall be filed w ithin
six ty (60) calendar days after receipt o f sum m ons by
such en tity. (2a)”
COM M ENTS:

Q: When to file answ er in case of defendant foreign

private ju rid ical e n tity ?
A: 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.

3. Answer to Am ended Com plaint:

Sec. 3, Rule 11 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the period of filing an answer to amended complaint. It states
that:
"Sec. 3. A n sw er to a m e n d e d c o m p la in t — When
th e p lain tiff files an am ended com plaint as a m atter
o f right, th e defendant shall answer th e sam e w ithin
th irty (30) calendar days after being served w ith a
copy thereof.
Where its filing is not a m atter o f right, th e
defendant shall answer th e am ended com plaint
w ithin fifteen (15) calendar days from n o tic e o f th e
 CHAPTER VII 661
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

order adm itting the sam e. An answer earlier filed may

serve as th e answer to th e am ended com plaint if no
new answer is filed.
This Rule shall apply to th e answer to an am ended
counterclaim , am ended cross- claim , amended
third (fourth, etc.)-party com plaint, and amended
complaint-in- intervention. (3a)”

COMMENTS:
Q: When to file an answ er to th e am ended com plaint as
a m a tte r of rig h t?
A: 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.
Q: When to file an answ er to an am ended com plaint
when it is n o t a m a tte r o f right?
A: 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.
Q: W hat is th e coverage o f th e application of th e rule?
A: 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.

jj^ 4 ^ ^ n s w e i^ o ^ o u n te r c la to ^ r ^ r o s s - c la im r

Sec. 4, Rule 11 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the period to file answer to counterclaim or cross-claim. It
states that:
“Sec. 4. Answer to counterclaim or cross-claim.
— A counterclaim or cross-claim m ust be answered
w ithin tw enty (20) calendar days from service. (4a)”
662 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: When to file an answ er to co u n terclaim or cro ss­
claim ?
A: A counterclaim or cross-claim m ust be answered within
twenty (20) calendar days from service.

5. Answer to Third (F ourth, etc.)-P arty Com plaint:

Sec. 5, Rule 11 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the period to file answer to third (fourth, etc.)-party complaint.
It states that:
“Sec. 5. A nsw er to th ird (fourth, e tc .fp a rty
com plaint. — The tim e to answer a third (fourth,
etc.)-party com plaint shall be governed by th e sam e
rule as th e answer to th e com plaint. (5)”

COMMENTS:
Q: W hen to file an answ er to th ird (fourth, etc.)-party
co m p lain t?
A: The time to answer a third (fourth, etc.j-party complaint
shall be governed by the same rule as the answer to the
complaint.

Sec. 6, Rule 11 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the period to file a reply. It states that:
“See. 6. Reply. — A reply, if allow ed under S ection
10, Rule 6 hereof, m ay be filed w ithin fifteen (15)
calendar days from service o f th e pleading responded
to. (6a)”
 CHAPTER VII 663
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

COMMENTS:
Q: When to file a reply?
A: A reply, if allowed under Sec. 10, Rule 6 hereof, may
be filed within fifteen (15) calendar days from service of the
pleading responded to.

7. Answer to Supplem ental Com plaint:

Sec. 7, Rule 11 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the period to file an answer to supplemental complaint. It
states that:
"Sec. 7. Answer to supplem ental co m p la in t —
A supplem ental com plaint m ay be answered within
tw enty (20) calendar days from n otice of th e order
adm itting th e sam e, unless a different period is fixed
by the court. The answer to th e com plaint shall serve
as th e answer to th e supplem ental com plaint if no
new or supplem ental answer is filed. (7a)”

COMMENTS:
Q: When to file an answ er to a supplem ental com plaint?
A: 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.

Q: W hat is th e effect if no supplem ental answer is filed?

A: The answer to the complaint shall serve as the answer
to the supplemental complaint if no new or supplemental
answer is filed.

jj^B ^JB id stin g ^^

Sec. 8, Rule 11 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on existing counterclaim or cross-claim when answer
is filed. It states that:
664 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 8. E xisting counterclaim or cross-claim . —

A com pulsory counterclaim or a cross-claim th a t a
defending party has at th e tim e h e or sh e files h is or
her answer shall be contained th erein .” (8a)

COMMENTS:
Q: W hat is th e rule on ex istin g co u n terclaim or a cro ss­
claim a t th e tim e o f th e filing of answ er?
A: A compulsory counterclaim or a cross-claim that a
defending party has at the time he or she files his or her
answer shall be contained therein.

9. C ounterclaim or C ross-claim Arising After Answer:

Sec. 9, Rule 11 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on counterclaim or cross-claim after the answer. It
states that:
“8 ec. 9. Counterclaim or cross-claim arising
a fte r answer. — A counterclaim or a cross-claim
w hich either m atured or was acquired by a party after
serving h is or her pleading m ay, w ith th e perm ission
o f th e court, be presen ted as a counterclaim or a cross­
claim by supplem ental pleading before ju d gm en t.”
(9a)

COMMENTS:
Q: How to p re se n t co u n terclaim or cross-claim a fte r th e
filing o f th e answ er?
A: A counterclaim or a cross-claim which either matured
or was acquired by a party after serving his or her pleading
may, with the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading
before judgment.
 CHAPTER VII 665
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

O m itted Counterclaim or Cross-claim:

Sec. 10, Rule 11 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on omitted counterclaim or cross-claim. It states
that:
HSec. 10. O m itted counterclaim or cross-claim.
— When a pleader fails to se t up a counterclaim or
a cross-claim through oversight, inadvertence, or
excusable neglect, or when ju stice requires, he or she
may, by leave of court, set up th e counterclaim or
cross-claim by am endm ent before judgm ent.” (10a)

COMMENTS:
Q: How to p resen t an o m itted counterclaim or a cross­
claim ?
A: 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.

11. Extension of Time to File Answer:

Sec. 11, Rule 11 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on extension to file answer. It states that:
“Sec. 11. Extension o f tim e to file an answer. —
A defendant may, for m eritorious reasons, be granted
an additional period o f not more than thirty (30)
calendar days to file an answer. A defendant is only
allowed to file one (1) m otion for extension o f tim e to
file an answer.”
A m otion for extension to file any pleading, other
than an answer, is prohibited and considered a mere
scrap o f paper. The court, however, may allow any
other pleading to be filed after th e tim e fixed by th ese
Rules. (11a)
666 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: When is a m o tio n for ex ten sio n o f tim e to file answ er
allow ed?
A: A defendant may, for meritorious reasons, be granted an
additional period of not more than thirty (30) calendar days
to file an answer.
Q: W hen to file a m otion for ex ten sio n o f tim e ?
A: Motion for extension of time to file pleading m ust be filed
before the expiration of the period sought to be extended.

Case Law:

A motion for extension of time to file a pleading m ust 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 )

Q: W hat is th e effect o f m o tio n for ex ten sio n of tim e to

file pleading?
A: Filing of motion for extension of time is tantam ount to
the submission to the jurisdiction of the court.

Case Law:

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)

Q: W hat is th e lim itatio n on th e o f ex ten sio n o f tim e to

file answ er u n d e r th e am en d ed ru les?
A: A defendant is only allowed to file one (1) motion for
extension of time to file an answer.
 CHAPTER VII 667
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

Q: What is th e rule on th e filing of extension of tim e to

file any o th er pleading u n d er th e am ended rules?
A: A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper.

Q: W hat is th e lim itatio n to th e above rule?

A: The court, however, may allow any other pleading to be
filed after the time fixed by these Rules.

a) Rule on E xtension o f Time to File Pleadings under

th e Rules on Sum m ary Procedure:

Q: Is a m otion for extension of tim e allowed u nder th e

Rules on Sum m ary Procedure?
A: No, motion for extension of time to file pleading is one
of the prohibited motions under the Rules on Summary
Procedure.

Procedural Basis:

Sec. 19(e) of th e Rules on Sum m ary Procedure provides

for the prohibition on the filing of a motion for extension to
file pleadings, affidavits, or any other papers. It states that:
“Sec. 19. Prohibited p leadin gs and motions. —
The following pleadings, m otions, or p etition s shall
not be allowed in the cases covered by th is Rule:
XXX

e) Motion for exten sion o f tim e to file

pleadings, affidavits or any other paper."

Q: Is m otion to adm it pleadings allowed u nder th e Rules

on Sum m ary Procedure?
A: No, if the extension of time to file pleadings, affidavits
or any other paper cannot be allowed, it is illogical and
incongruous to admit a pleading that is already filed late.
668 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

If the extension of time to file pleadings, affidavits or any

other paper cannot be allowed, it is illogical and incongruous
to admit a pleading that is already filed late. To admit a late
answer is to put a premium on dilatory measures, the very
mischief that the rules seek to redress. (Terafia vs. De Sagun,
G.R. No. 152131, April 29, 2009 cited in Heirs of Antonio
Feraren, et al. vs. Court of Appeals and Cecilia Tadiar, G.R.
No. 159328, October 5, 2011, Peralta, J.)

b) Rule on E xtension o f Tim e to File Pleadings u nder

th e Rules on Sm all Claim s Cases:
' ■ = ........... — ......... ... - ■ -
------------

Q: Is a m otion for ex ten sio n o f tim e allowed u n d er th e

Rules on Sm all Claim s Case?
A: No, motion for extension of time to file pleading is one
of the prohibited motions under the Rules on Small Claims
Cases.

Procedural Basis:

Sec. 14 of th e Rules on Sm all Claims Cases (A.M.

No. 08-8-7, effective October 27, 2009) prohibits the filing of
extension of time to file pleadings. It states that:
“Sec. 14. Prohibited p lea d in g s and motions. —
The following pleadings, motions, or petitions shall
not be allowed in the cases covered by this Rule:
e) Motion for extension of time to file
pleadings, affidavits or any other paper.”

c) Rule on E xtension of Tim e to File Pleading u nder

th e Rules on E nvironm ental Cases:
Q: Is a m otion for ex ten sio n o f tim e to Ale pleadings
allowed u n d er th e Rules on E nvironm ental C ases?
A: No, motion for extension of time to file pleading is one
of the prohibited motions under the Rules on Environmental
Cases, except filing of the answer.
 CHAPTER VII 669
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

Procedural Basis:

Sec. 2(c), Rule 2, P art II o f A.M. No. 09-6-08-SC otherwise

known as the R ules o f Procedure for E n vironm ental Cases
enumerates the prohibited motions in environmental cases.
It states that:
“Sec. 2. Prohibited p lea d in g s and motions. —
The following pleadings and m otions shall n ot be
allowed:
c) M otion for exten sion o f tim e to file
pleadings, excep t to file answer, th e exten sion n ot to
exceed fifteen (15) days.”

S ample F orm No . 2; Mqtiom F or E xtension Of Time To F ile

Ahswer/ R esponsive P leadihq (Sec. 11, R ule 11)

REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant,
x --------------------x

MOTION FOR EXTENSION OF TIME

TO FILE ANSWER/RESPONSIVE PLEADING
COMES NOW, the defendant, through the undersigned
counsel and u n to this Honorable Court, m ost avers:
1. That the on F e b ru a ry __ , 2020, defendant received
a copy of the Sum m ons issued by this Honorable Court with
attached Com plaint and annexes, requiring him to file his
Answer to the said complaint;
670 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. That defendant only secured the services of the

undersigned counsel only today F ebruary__ 2020, and he
need time to familiarize himself of the facts of the case, and
needs additional time of fifteen (15) days to file said answ er/
responsive pleading.
WHEREFORE, defendant prays th at they be granted an
additional time of fifteen (15) days from F eb ru ary __ 2020
within which to file his answ er/responsive pleading based
on the above reasons.
Such other relief and remedies as may be deemed ju st
and equitable under the premises are likewise prayed for.
Manila, M arch__ , 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283 /2 -5 -2 0 /Mia.
PTR NO. 3 6 4 7 9 8 2 /1-22-20/Mla.
MCLE Compliance No vi. 4487/1-8-20
Roll No. 38599
Tel. No. 927-9278
NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for Plaintiff
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court immediately upon
receipt hereof.
HECTOR A. YULO
 CHAPTER VII 671
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 1408 E rm ita C enter Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
E rm ita M anila
EXPLANATION OF SERVICE
Copy of th e Motion for Extension of Time to file A nsw er/
Responsive Pleading w as served to Plaintiffs counsel by reg­
istered mail due to tim e a n d distance constraints, an d for
lack of the undersigned’s staff who can serve the sam e in
person.
HECTOR A. YULO
 CHAPTER VIII

RULE 12: BILL OF PARTICULARS

1. When to Apply and 1

Sec. 1, Rule 12 of th e 2019 Amendm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
th e ru le on th e filing of m otion for bill of p a rtic u la rs . It s ta te s
th a t:
u8ec. 1. When applied for, purpose. — Before
responding to a pleading, a party may m ove for
a definite statem ent or for a bill of particulars of
any matter, which is not averred with sufficient
definiteness or particularity, to enable him or her
properly to prepare his or her responsive pleading.
If the pleading ia a reply, the m otion m ust be filed
within ten (10) calendar days from service thereof.
8uch m otion shall point out the defects complained
of, the paragraphs wherein they are contained, and
the details desired, (la)”

COMMENTS
Q: What is a bill of particulars?
A: Bill of p a rtic u la rs — is a m ore definite s ta te m e n t of fact
a n d m ate ria l allegations in th e pleadings.

Q: What is a m otion for bill of particulars?

A: It is a n a p p licatio n before th e c o u rt for a m ore definite
s ta te m e n t of th e facts a n d m a te ria l alleg atio n s in th e pleading.

Q: When to file a m otion for bill of particulars under the

above-stated rule?

672
 CHAPTER VIII 673
RULE 12: BILL OF PARTICULARS

A: Before responding to a pleading, a party may move for

a more definite statement or for a bill of particulars of any
matter which is not averred with sufficient definiteness or
particularity to enable him to prepare his responsive pleading.
Q: W hen to file a bill o f p artic u la rs in case o f a reply?
A: 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.
Q: W hat is th e n atu re o f a m o tio n for bill of p artic u la rs?
A: A motion for bill of particulars is a formal and litigious
motion (Sec. 5, Rule 15) which must be in writing and requires
notice to the adverse party and hearing.
Q: W hat are th e in sta n c e s w here m o tio n for bill of
p articu lars is n o t allow ed?
A: Motion for bill of particulars is prohibited under the
following cases, to wit:
1) Intra-corporate Disputes;
2) Cases under the Rules on Summary Procedure;
3) Cases under the Rules on Small Claims Cases;
4) Cases under the Rules on Environmental Cases;
5) Case under the Rules on Writ of Amparo;
6) Cases under the Rules on Habeas Data.

a) Bill o f P articu lars u n d er th e Rules on In tn

co rp o rate D ispute:________________________

Q: Is a bill o f p artic u la rs allowed u n d er th e Rules on

In tra-co rp o rate D isputes?
A: No, in cases governed by the Interim Rules of Procedure
on Intra-Corporate Controversies a bill of particulars is a
prohibited motion.
674 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

E « E Law jfl
In ordinary cases, the failure to specifically allege the
fraudulent acts does not constitute a ground for dismissal
since such a defect can be cured by a bill of particulars. Thus:
Failure to allege fraud or mistake with as much
particularity as is desirable is not fatal if the general purport
of the claim or defense is clear, since all pleadings should be
so construed as to do substantial justice. Doubt as to the
meaning of the pleading may be resolved by seeking a bill
of particulars. A bill of particulars may be ordered as to a
defense of fraud or mistake if the circumstances constituting
fraud or mistake are not stated with the particularity required
by the rule.
The above-stated rule, however, does not apply to intra­
corporate controversies. In Reyes, we pronounced that “in
cases governed by the Interim Rules of Procedure on Intra-
Corporate Controversies a bill of particulars is a prohibited
pleading. It is essential, therefore, for the complaint to show
on its face what are claimed to be the fraudulent corporate
acts if the complainant wishes to invoke the court’s special
commercial jurisdiction.” This is because fraud in intra­
corporate controversies must be based on “devises and
schemes employed by, or any act of, the board of directors,
business associates, officers or partners, amounting to
fraud or misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders, partners,
or members of any corporation, partnership, or association,”
as stated under Rule 1, Sec. 1(a)(1) of the Interim Rules. The
act of fraud or misrepresentation complained of becomes a
criterion in determining whether the complaint on its face
has merits, or within the jurisdiction of special commercial
court, or merely a nuisance suit. (Simny G. Guy, Geraldine G.
Guy, Gladys G. Yao, and the Heirs of the Late Grace G. Cheu
us. Gilbert G. Guy, G.R. No. 189486, September 5, 2012)
 CHAPTER VIII 675
RULE 12: BILL OF PARTICULARS

b) M otion for Bill o f P articu lars u n d er th e Rules on

Sum m ary Procedure:

Q: Is a m o tio n for bill o f p articu lars allowed u n d er th e

Rules on Sum m ary P rocedure?
A: No, motion for bill of particulars is one of the prohibited
motions under the Rules on Summary Procedure.

[l^ProceduralB asis:

Sec. 19 o f th e Revised Rules on Sum m ary P rocedure

provides for the prohibition on the filing of motion for bill of
particular. It states that:
MSec. 19. Prohibited p lea d in g s a n d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n o t be allow ed in th e ca ses covered by th is Rule:
X X X

h) M otion for a bill o f particulars.”

c) M otion for Bill o f P articu lars u n d er th e 216 Revised

Rules on Small Claim s Cases:
K. I ' --------- ---- ------------ I ............................ ■-----------------------------------------------------------------------------------■■ ■ ■■

Q: Is a m o tio n for bill o f p articu lars allowed u n d er th e

201 6 Revised Rules on Sm all Claim s C ases?
A: No, motion for bill of particulars is one of the prohibited
motions under the Rules on Small Claims Cases.

l^ ^ o c e d u ra lB a sis:

Sec. 14(b) o f th e Revised 2016 Rules on Sm all Claims

provides for rule on the prohibition on the filing of a motion
for bill of particulars. It states that:
“Sec. 14. Prohibited p lea d in g s a n d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n ot be allow ed in th e c a ses covered by th is Rule:
X X X

b) M otion for bill o f particulars.”

676 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

d) Motion for Bill of P articulars under th e Rules

Environm ental Cases:
Q: Is a m otion for bill of particulars allowed under th e
Rules on Environm ental Cases?
A: No, motion for bill of particulars is one of the prohibited
motions under the Rules on Environmental Cases.

Procedural Basis:

Sec. 2, Rule 2, P art II of A.M. No. 09-6-08-SC otherwise

known as the Rules of Procedure for Environm ental Cases
prohibits the filing of the motion for bill of particulars in
environmental cases. It states that:
“Sec. 2. Prohibited pleadin gs and motions. —
The following pleadings and m otions shall not be
allowed:
b) Motion for bill o f particulars;”

Q: D istinctions Between M otion Bill of Particulars in

Civil Cases (Rule 12) and in Crim inal Cases (Rule 116)?

Motion for Bill o f Particulars Motion for Bill o f Particulars

a) Motion for Bill of particu­
lars under Rule 12 m ust
be filed before the filing of
a responsive pleading or in
case of a reply within 10
days from receipt thereof.
b) Motion for Bill of particu­
lars under Rule 12 is di­
rected against pleadings.
in Criminal Case
a) Motion for bill of particu­
lars under Rule 116 m ust
be filed before arraign­
ment.
b) Motion for bill of particu­
lars under Rule 116 is di­
rected against a criminal
Complaint or Information.
 CHAPTER VIII 677
RULE 12: BILL OF PARTICULARS

c) In case of denial of the c) While in case of denial

m otion for bill of particulars
under Rule 12, the
moving party may file his
responsive pleading within
the period he is entitled to
b u t in no case less th a n five
days, u n less the denial is
tainted with grave ab u se of
discretion, hence, petition
for certiorari.
of the m otion for bill
of p a rticu la rs under
Rule 116, the accused
m ay proceed w ith the
arraignm ent an d e n te r his
plea, u n less the denial is
tain ted with grave abuse of
discretion, party m ay file a
petition for certiorari.

|^ 2 ^ A c tio n by t hc^CourtT

Sec. 2, Rule 12 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the action of the court on the motion for bill of
particulars. It states that:
“Sec. 2. Action b y th e c o u r t — Upon th e filing
o f th e m otion, th e clerk o f court m ust im m ediately
bring it to th e a tten tio n o f th e court, w hich m ay
eith er deny or grant it outright, or allow th e parties
th e opportunity to be heard.”

COMMENTS:
Q: W hat are th e actio n s of th e co u rt on th e m otion for
bill o f p artic u la rs?
A: Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court, which may
either:
1) Deny or grant the motion outright; or
2) Allow the parties the opportunity to be heard.
678 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. Com pliance w ith Order:

Sec. 3, Rule 12 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the compliance of the order of the court. It states
that:
“Sec. 3. Compliance w ith order. — If th e m otion
is granted, either in w hole or in part, th e com pliance
therew ith m ust be effected w ithin ten (10) calendar
days from n otice o f th e order, u n less a different
period is fixed by th e court. The bill o f particulars or a
m ore definite statem en t ordered by the court m ay be
filed eith er in a separate or in an am ended pleading,
serving a copy th ereof on the adverse party. (3a)”

COMMENTS:
Q: W hat is th e d u ty o f th e p arty m ovant if th e m otion is
g ran ted ?
A: If the motion is granted, either in whole or in part,
the compliance therewith m ust be effected within ten (10)
calendar days from notice of the order, unless a different
period is fixed by the court.

Q: How to file th e bill o f p artic u la rs?

A: 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.

4. Effect o f Non-Compliance (Bar E xam ination 2018):

Sec. 4, Rule 12 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the effect of non-compliance of the order of the
court. It states that:
“Sec. 4. E ffect o f non-compliance. — If th e order
is n ot obeyed, or in case of insufficient com pliance
 CHAPTER VIII 679
RULE 12: BILL OF PARTICULARS

therew ith, th e court m ay order th e striking out o f th e

pleading or th e portions th ereof to w hich th e order
was directed, or m ake such other order as it deem s
ju st. (4)”

COMMENTS:
Q: W hat are th e effects o f non-com pliance of th e order
o f th e c o u rt?
A: If the order is not obeyed, or in case of insufficient
compliance therewith, the court may:
1) Order the striking out of the pleading or the portions
thereof to which the order was directed; or
2) Make such other order as it deems just.

5. S tay o f Period to File Responsiv<

=
Sec. 5, Rule 12 o f th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on filing of the responsive pleading. It states that:
“Sec. 5. S ta y o f p erio d to f ile responsive
pleadin g. — After service o f th e bill o f particulars or
o f a more definite pleading, or after n otice o f denial
o f h is or her m otion, th e m oving party m ay file h is or
her responsive pleading w ithin th e period to w hich
he or she was en titled at th e tim e o f filing h is or her
m otion, w hich shall n ot be less than five (5) calendar
days in any event. (5a)”

COMMENTS:
Q: W hat is th e rem edy in case o f denial of a m otion for
bill of p a rtic u la rs? (Bar E xam ination 2018)
A: 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 or her motion, which shall not be less than five (5)
calendar days in any event.
680 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6. Bill P art o f a Pleading:

Sec. 6, Rule 12 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on bill of particulars becoming a part of the pleading.
It states that:
“Sec. 6. B ill a p a r t o f pleading. — A bill o f
particulars becom es part of th e pleading for w hich it
is intended. (6)”

COMMENTS:
Q: Is a bill of p articu lars a p art o f th e pleading?
A: Yes, as prescribed by the above cited rule, a bill of
particulars becomes part of the pleading for which it is
intended.
S a m p le F o rm N o . 1; M o tio n F o r B i l l Of P a r t i c u l a r s ( R u le 12)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h __
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant,
x -------------------------- x

MOTION FOR BILL OF PARTICULARS

COMBS NOW, the defendant, through the undersigned
counsel and unto this Honorable Court, m ost respectfully
move for a bill of particular on the following grounds and
avers:
 CHAPTER VIII 681
RULE 12: BILL OF PARTICULARS

1. T hat the plaintiff, in his com plaint, seeks to recover

dam ages allegedly suffered by him , in th e am o u n t of
P I ,000,000.00;
2. T hat plaintiff failed to allege the n a tu re of said
dam ages, the m anner in which he suffered the sam e, and
w hat com putation he u sed to arrive a t the alleged am ount,
with sufficient definiteness, a n d /o r particularly to enable
defendant to properly prepare his responsive pleading a n d /
or for trial.
WHEREFORE, defendant prays th a t plaintiff be ordered
to am end th e com plaint or to subm it a Bill of Particular,
stating with definiteness the n a tu re of said dam ages,
the m an n er in which he suffered the sam e, and w hat
com putation he used to arrive a t the alleged am ount, with
sufficient definiteness.
Such o ther relief and rem edies as m ay be deem ed ju s t
and equitable u n d e r th e prem ises are likewise prayed for.
Manila, F e b ru a ry __ , 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283/2-5-20/M la.
PTR NO. 3 6 4 7 9 8 2 / 1-22-20/M la.
MCLE Com pliance No. VI 4 4 8 7 /1 -8 -1 9
Roll No. 38599
Tel. No. 927-9278

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS:
Please subm it the foregoing m otion for the consideration
and approval of the Honorable C ourt on ______________ ,
2020, a t 2:00 p.m.
HECTOR A. YULO
682 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
Room 1408 Ermita Center Bldg.,
1350 Roxas Blvd,, corner Sta. Monica St.,
Ermita, Manila
EXPLANATION OF SERVICE
Copy of the Motion for Bill of Particular was served
to Plaintiffs 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.

HECTOR A. YULO
 CHAPTER IX

RULE 13: FILING AND SERVICE OF PLEADINGS

JUDGMENTS AND OTHER PAPERS

1. Coverage:

Sec. 1, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the coverage of the filing and service. It states
that:
“Sec. 1. Coverage. — This Rule shall govern
th e filing o f all pleadings, m otion s, and other court
subm issions, as well as th eir service, excep t th o se for
w hich a different m ode o f service is prescribed. (la )”

COMMENTS:
Q: W hat is th e coverage o f th e app lication of th e above-
cited ru le?
A: This Rule shall govern the filing of all pleadings, motions,
and other court submissions, as well as their service, except
those for which a different mode of service is prescribed.

2. D efinition of Filing an d Service:

Sec. 2, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provide for
the rule on filing and service of pleading. It states that:
"Sec. 2. Filing a n d service defined. — Filing is
th e act o f subm itting th e pleading or other paper to
th e court.

683
684 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Service is the act o f providing a party with a

copy o f th e pleading or any other court subm ission.
If a party has appeared by counsel, service upon such
party shall be made upon his or her counsel, unless
service upon th e party and th e party’s counsel is
ordered by th e court. Where one counsel appears for
several parties, snch counsel shall only be en titled to
one copy o f any paper served by th e opposite side.
Where several cou n sels appear for one party,
such party shall be en titled to only one copy o f any
pleading or paper to be served upon th e lead counsel
if one is designated, or upon any one o f them if there
is no designation o f a lead counsel. (2a)”

COMMENTS:
Q: W hat is th e m eaning o f filing?
A: Filing is the act of submitting the pleading or other paper
to the court.
Q: W hat is th e m eaning o f service?
A: Service is the act of providing a party with a copy of the
pleading or any other court submission.
Q: How will service be m ade if a p arty is rep resen ted by
a counsel?
A: If a 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.

Case Law:

Section 2, Rule 13 of the Rules of Court provides that if

any party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service upon
the party himself is ordered by the court. Thus, even if a party
represented by counsel has been actually notified, said notice
is not considered notice in law. The reason is simple — the
parties, generally, have no formal education or knowledge
of the rules of procedure, specifically, the mechanics of an
 CHAPTER IX 685
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
appeal or availment of legal remedies; thus, they may also
be unaware of the rights and duties of a litigant relative to
the receipt of a decision. More importantly, it is best for the
courts to deal only with one person in the interest of orderly
procedure — either the lawyer retained by the party or the
party him/herself if he/she does not intend to hire a lawyer.
(Michael Adriano Calleon vs. HZSC Realty Corporation, et al,
G.R. No. 228572, January 27, 2020)
Q: Is service o f judgm ent to th e p arty upon th e death of
h er counsel valid?
A: Yes, service of judgment to the party upon death of her
counsel is valid it is the duty of the party to inform the court
of the fact of such death.

jj_^C£se^Lavn_

Thus, when the MeTC decision was sent to petitioner’s

counsel, such service of judgment was valid and binding
upon petitioner, notwithstanding the death of her counsel,
x x x It is likewise the duty of the party to inform the court
of the fact of her counsel’s death. Her failure to do so means
that she is negligent in the protection of her cause, and she
cannot pass the blame to the court which is not tasked to
monitor the changes in the circumstances of the parties and
their counsels. (Milagros Salting vs. John Velez and Clarissa
R. Velez, G.R. No. 181930, January 10,2011)
Q: Is notice to th e clien t considered as notice to th e
counsel?
A: As a rule, notice to the client is not notice to the counsel,
except, upon order of the court.

|_ C a s e ^ w j j
Notice to the client and not to his counsel of record is
not notice in law. (De Leon vs. Court of Appeals, 383 SCRA
216 [2002]) The rule admits of exceptions, as when the court
or tribunal orders service upon a party or when the tribunal
defendant is waived. (Philippine National Bank vs. Court of
Appeals, 246 SCRA 304 [1995])
686 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e req u irem en t for effective s u b stitu tio n of

counsel?
A: A substitution cannot be presumed from the mere
filing of a notice of appearance of a new lawyer and that the
representation of the first counsel of record continuous until
a formal notice to change counsel is filed with the court.

Case Law:
A propos herein is the Court’s teaching in Land Bank of
the Phils, vs. Pamintuan Development Co., to wit:
A substitution cannot be presumed from the mere
filing of a notice of appearance of a new lawyer and that the
representation of the first counsel of record continuous until
a formal notice to change counsel is filed with the court.
Thus, absent a formal notice of substitution, all lawyers who
appeared before the court or filed pleadings in behalf of the
client are considered counsels of the latter. All acts performed
by them are deemed to be with the clients’ consent. (Sps.
Luisito Pontigon and Leodegaria Sanchez-Pontigon vs. Heirs of
Meliton Sanchez, et al., G.R. No. 221513, December 5, 2016)
Q: How will service be m ade if one counsel appeared for
several p artie s u n d er th e am ended ru les?
A: Where one counsel appears for several parties, such
counsel shall only be entitled to one copy of any paper served
by the opposite side.
Q: How will service be m ade if several counsels appear
for one p arty u n d er th e am ended ru les?
A: 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.

3. M anner o f Filing:

Sec. 3, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
 CHAPTER IX 687
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
for the rule on manner of tiling of pleadings and other court
submissions. It states that:
“Sec. 3. Manner o f Filing. —
The filing o f pleadings and other court
subm issions shall be made by:
a) Subm itting personally th e original thereof,
plainly indicated as such, to th e court;
b) Sending them by registered mail;
c) Sending them by accredited courier; or
d) Transm itting them by electronic m ail or
other electronic m eans as m ay be authorized by th e
Court in places where th e court is electronically
equipped.
In th e first case, th e clerk o f court shall endorse
on th e pleading th e date and hour o f filing. In the
second and third cases, th e date of th e m ailing o f
m otions, pleadings, and other court subm issions, and
paym ents or deposits, as shown by th e post office
stam p on th e envelope or th e registry receipt, shall
be considered as th e date of their filing, paym ent, or
deposit in court. The envelope shall be attached to
th e record o f the case. In th e fourth case, th e date
o f electronic transm ission shall be considered as th e
date o f filing. (3a)”

COMMENTS:
Q: W hat is th e m anner o f filing of pleadings and o th er
co u rt subm issions?
A: The filing of pleadings and other court submissions shall
be made by:
1) Submitting personally the original thereof, plainly
indicated as such, to the court;
2) Sending them by registered mail;
3) Sending them by accredited courier; or
4) Transmitting them by electronic mail or other
electronic means as may be authorized by the Court in places
where the court is electronically equipped.
688 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e d u ty o f th e clerk of c o u rt upon th e

personal filing o f pleading o r o th e r c o u rt subm issions?
A: In the first case (personal filing), the clerk of court shall
endorse on the pleading the date and hour of filing.

Q: W hat is th e rule in case o f filing of pleading or o th e r

c o u rt subm issions by reg istered m ail o r p riv ate cou rier?
A: In the second (registered mail) and third cases (private
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.

Q: W hat is th e rule on th e d ate o f filing by registered

m ail?
A: If a pleading is filed by registered mail, then the date of
mailing shall be considered as the date of filing.

|| Case Lawj^

Sec. 3, Rule 13 of the Rules of Court provides that if a

pleading is filed by registered mail, then the date of mailing
shall be considered as the date of filing. It does not matter
when the court actually receives the mailed pleading. (Alma
B. Russel vs. Teofista Ebasan and Agapito Austria, G.R. No.
184542, April 23, 2010)
Q: W hat are th e two (2) sou rces o f period in determ in in g
th e d ate o f filing by reg istered m ail?
A: The date of filing can be determined from the post office
stamp on the envelope, or from the registry receipt.

|| Case Law^

Section 3, Rule 13 of the Rules of Court provides that

where pleadings are filed by registered mail, the date of
 CHAPTER IX 689
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
mailing as shown by the post office stamp on the envelope or
the registiy receipt shall be considered as the date of filing.
Based on this provision, the date of filing is determinable
from two sources:
(1) from the post office stamp on the envelope or
(2) from the registry receipt, either of which may suffice
to prove the timeliness of the filing of the pleadings.
The Court previously ruled that if the date stamped on
one is earlier than the other, the former may be accepted
as the date of filing. This presupposes, however, that the
envelope or registry receipt and the dates appearing thereon
are duly authenticated before the tribunal where they are
presented. When the photocopy of a registiy receipt bears an
earlier date but is not authenticated, the Court held that the
later date stamped on the envelope shall be considered as the
date of filing. (Isidro Q uebral, e t al. us. A n g b u s C onstruction,
Inc. a n d A ngelo B u s ta m a n te , G.R. No. 2 2 1 8 9 7 , N o vem b er 7,
2016)

Q: W hat is th e rule in case of filing of pleading or o th er

co u rt subm issions by electronic tran sm ission?
A: In the fourth case (electronic su b m issio n ), the date of
electronic transmission shall be considered as the date of
filing.

|| 4. Papers Required to Jje FUed and Served:

Sec. 4, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the filing and service of motion and other papers.
It states that:
“Sec. 4. Papers required to be file d and served.
— Every judgm ent, resolution, order, pleading
subsequent to th e com plaint, written m otion, notice,
appearance, demand, offer o f judgm ent or sim ilar
papers shall be filed with th e court, and served upon
th e parties affected.” (4)
690 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e rule on th e filing an d services of m o tions
and o th e r p ap ers?
A: 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.*1

5. Modes o f Service:

Sec. 5, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the modes of service of pleadings, motions etc. It
states that:
wSec. 5. Modes o f service. — Pleadings,
m otion s, n o tices, orders, judgm en ts, and other
court subm issions shall be served personally or by
registered m ail, accredited courier, electron ic m ail,
facsim ile tran sm ission, other electron ic m eans as
m ay be authorized by th e Court, or as provided for in
international con ven tion s to w hich th e P hilippines is
a party.” (5a)

COMMENTS:
Q: W hat are th e m odes o f service o f pleadings, m otions,
n o tices, orders, e tc .?
A: Pleadings, motions, notices, orders, judgments, and
other court submissions shall be served:
1) Personally; or
2) By registered mail;
3) By accredited courier;
4) Electronic mail;
5) Facsimile transmission, or
6) Other electronic means as may be authorized by
the Court, or as provided for in international conventions to
which the Philippines is a party.
 CHAPTER IX 691
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

6. Personal Service:

Sec. 6, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on personal service of court submissions. It states
that:
“Sec. 6. Personal service. — Court subm issions
m ay be served by personal delivery o f a copy to the
party or to th e party's counsel, or to their authorized
representative nam ed in th e appropriate pleading or
m otion, or by leaving it in his or her office with his
or her clerk, or w ith a person having charge thereof.
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,
th en by leaving th e copy, betw een the hours o f eight
in th e m orning and six in th e evening, at th e party’s
or counsel’s residence, if known, with a person of
sufficient age and discretion residing therein." (6a)

COMMENTS:
Q: How will personal service o f co u rt subm issions be
m ade?
A: Court submissions may be served personally by:
1) Personal delivery of a copy to the party or to the
party’s counsel, or to their authorized representative named
in the appropriate pleading or motion; or32
2) By leaving it in his or her office with his or her clerk,
or with a person having charge thereof;
3) 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 residing
therein.
692 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e preferred m ode o f service and filing, and

its purpose?
A: The preferred mode of service and filing is personal
service since it will expedite action or resolution on a pleading,
motion or other paper, and minimize, if not eliminate delays.

C a se Law:

Personal service and filing are preferred for obvious

reasons. Plainly, such should expedite action or resolution on
a pleading, motion or other paper; and conversely, minimize,
if not eliminate, delays likely to be incurred if service or filing
is done by mail, considering the inefficiency of postal service.
Likewise, personal service will do away with the practice of
some lawyers who, wanting to appear clever, resort to the
following less than ethical practices: (1) serving or filing
pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for instance,
responsive pleadings or an opposition; or (2) upon receiving
notice from the post office that the registered parcel containing
the pleading of or other paper from the adverse party may be
claimed, unduly procrastinating before claiming the parcel,
or, worse, not claiming it at all, thereby causing undue delay
in the disposition of such pleading or other papers. (Edgardo
M. Aguilar vs. Elvira J. Benlot and Samuel L. Cuico, G.R. No.
232806, January 21, 2019)

Q: W hat is th e rule on service o f orders and n o tices to

counsel?
A: Service of orders and notices m ust be made upon said
attorney and notice to the client and to any other lawyer,
not the counsel of record, is not notice in law, except when
ordered by the court.

Case Law:

As a general rule, when a party is represented by counsel

of record, service of orders and notices must be made upon
said attorney and notice to the client and to any other lawyer.
 CHAPTER IX 693
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
not the counsel of record, is not notice in law. The exception
to this rule is when service upon the party himself has been
ordered by the court. (Spouses Domingo Af. Belen, et al. vs.
Hon. Pablo R. Chavez, et al., G.R. No. 175334, March 26, 2008)

Q: W hat la th e effect o f failure to file notice of change of

address by th e counsel?
A: In case of failure to file notice of change of address,
service must be made at the last address of the counsel.

In the absence of a proper and adequate notice to the

court of a change of address, the service of the order or
resolution of a court upon the parties must be made at the last
address of their counsel on record. (Thermochem Incorporated
vs. Naval, 344 SCRA 76 [2002])
Q: W hat is th e d uty o f th e p arty in case he will change
his address?
A: It is the duty of party and counsel in case of change
of address to inform the court officially of a change in his
address.

It is the duty of the party and his counsel to device a

system for the receipt of mail intended for them, just as it is
the duty of the counsel to inform the court officially of a change
in his address. It is also the responsibility of a party to inform
the court of the change of his address so that in the event the
court orders that an order or resolution be served on the said
party to enable him to receive the said resolution or order.
(Rivera vs. Litam & Company, Inc., 4 SCRA 1072 [1962]; Peter
D. Garrucho vs. Court o f Appeals, G.R. No. 143791, January
14, 2005)
694 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

7. Service by Mail:

Sec. 7, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rule on service by registered mail of pleadings, court
submissions, etc. It states that:
"See. 7. Service by m a il — Service by registered
m ail shall be made by depositing th e copy in th e post
office, in a sealed envelope, plainly addressed to th e
party or to th e party’s cou n sel at h is or her office, if
known, otherw ise at h is or her residence, if known,
w ith postage folly pre-paid, and w ith instru ction s to
th e postm aster to return th e m ail to th e sender after
ten (10) calendar days if undelivered. If no registry
service is available in th e locality o f either th e sender
or th e addressee, service m ay be done by ordinary
m ail.” (7a)

COMMENTS:
Q: How will service by reg istered m ail of co u rt
subm issions be m ade?
A: Service by registered mail shall be made in the following
manner:
1) Depositing the copy in the post office, in a sealed
envelope;
2) 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;
3) With postage fully pre-paid; and
4) With instructions to the postmaster to return the
mail to the sender after ten (10) calendar days if undelivered.
Q: How will service be m ade, if th e re is no registry
service in th e locality?
A: If no registiy service is available in the locality of either
the sender or the addressee, service may be done by ordinary
mail.
 CHAPTER IX 695
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

| 8. Subgtjtuted^ServjceT

Sec. 8, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for the
rule on substituted service of pleadings, court submissions,
etc. It states that:
“See. 8. S u b stitu ted service. — If service of
pleadings, motions, notices, resolutions, orders and
other papers cannot be m ade under th e tw o preceding
sectio n s, th e office and place o f residence o f th e
party or h is or her cou n sel being unknown, service
m ay be m ade by delivering th e copy to th e clerk of
court, w ith proof o f failure o f both personal service
and service by m ail. The service is com p lete at th e
tim e o f su ch delivery.” (8a)

COMMENTS:
Q: How will su b stitu te d service of pleadings, m otion
etc., be m ade?
A: 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.
Q: When is su b stitu te d service deem ed com plete?
A: The service is complete at the time of such deliveiy.

9. Service by E lectronic M eans an d Facsim ile:

Sec. 9, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on service of pleadings, motion etc., by electronic
means and facsimile. It states that:
“Sec. 9 . Service by electronic m eans an d
fa csim ile. — Service by electron ic m eans and facsim ile
shall be m ade if th e party concerned c o n sen ts to such
m odes o f service.
696 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Service by electron ic m eans shall be m ade by

sending an e-m ail to th e party’s or cou n sel’s electron ic
m ail address, or through other electron ic m eans o f
tran sm ission as th e parties m ay agree on, or upon
direction o f th e court.
Service by facsim ile shall be m ade by sending
a facsim ile copy to th e party’s or cou n sel’s given
facsim ile num ber.” (n)

COMMENTS:
Q: When will service by electro n ic m eans and facsim ile
be m ade?
A: Service by electronic means and facsimile shall be made
if the party concerned consents to such modes of service.
Q: How will service by electro n ic m eans be m ade?
A: Service by electronic means shall be made by:
1) Sending an e-mail to the party’s or counsel’s
electronic mail address;
2) Through other electronic means of transmission as
the parties may agree on, or upon direction of the court.
Q: How will service by facsim ile be m ade?
A: Service by facsimile shall be made by sending a facsimile
copy to the party’s or counsel’s given facsimile number.

10. P resum ptive Service:

Sec. 10, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on presumptive notice of court setting. It states that:
“Sec. 10. Presum ptive service. — There shall
be presum ptive n otice to a party o f a court settin g
if such n o tice appears on th e records to have been
m ailed at lea st tw en ty (20) calendar days prior to th e
scheduled date o f hearing and if th e addressee is from
w ithin th e sam e judicial region o f th e court where th e
case is pending, or at lea st th irty (30) calendar days if
th e addressee is from outsid e th e judicial region.” (n)
 CHAPTER IX 697
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
COMMENTS:
Q: W hat is th e rule on presum ptive service of notice of
co u rt settin g ?
A: 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.

11. Change o f E lectronic Mail A ddress or Facsim ile

Number:

Sec. 11, Rule 13 o f th e 1997 Rules of Civil Procedure

provides for the rule on change of electronic mail address or
facsimile number:
“Sec. 11. Change o f electronic m ail a d d ress or
fa csim ile number. — A party who changes h is or her
electronic m ail address or facsim ile number while the
action is pending m ust prom ptly file, w ithin five (5)
calendar days from su ch change, a n otice o f change
o f e-m ail address or facsim ile number with th e court
and serve th e n otice on all other parties.
Service through th e electronic m ail address or
facsim ile number o f a party shall be presum ed valid
u n less such party n otifies th e court o f any change, as
aforem entioned." (n)

COMMENTS:
Q: W hat is th e d uty o f th e p arty in case of change of
electro n ic m ail address or facsim ile num ber?
A: 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.
698 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e p resu m p tio n in case o f service th ro u g h

electro n ic m ail ad d ress o r facsim ile num ber?
A: 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.

12. E lectronic Mail an d F acsim ile S ubject an d Title of

Pleadings, etc.:___________________________

Sec. 12, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on electronic mail and facsimile on subject and title
of pleadings and other documents. It states that:
“Sec. 12. E lectronic m ail a n d fa c sim ile subject
an d title o f p lea d in g s a n d oth er docum ents. — The
subject o f th e electron ic m ail and facsim ile m ust
follow th e prescribed format: case number, case title
and th e pleading, order or docum ent title . The title o f
each electronically-flled or served pleading or other
docum ent, and each subm ission served by facsim ile
shall contain su fficien t inform ation to enable th e
court to ascertain from th e title: (a) th e party or
parties filing or serving th e paper, (b) nature o f th e
paper, (c) th e party or parties against whom relief, if
any, is sought, and (d) the nature o f the relief sought.”
(n)
COMMENTS:
Q: W hat are th e req u irem en ts in case of subject in case
o f electro n ic m ail or facsim ile?
A: The subject of the electronic mail and facsimile must
follow the prescribed format: case number, case title and the
pleading, order or document title.
Q: W hat are th e c o n te n ts of th e title of electronically
filed or served pleading, e tc .?
A: 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:
1) The party or parties filing or serving the paper;
 CHAPTER IX 699
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
2) Nature of the paper;
3) The party or parties against whom relief, if any, is
sought; and
4) The nature of the relief sought.

13. Service of Ju d g m en ts, Final O rders or Resolutions:

Sec. 13, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on service of judgments, final orders or resolution.
It states that:
“Sec. 13. Service o f Judgm ents, Final Orders or
Resolutions. — Judgm ents, final orders, or resolutions
shall be served either personally or by registered
m ail. Upon ex p a rte m otion o f any party in th e case,
a copy of th e judgm ent, final order, or resolution may
be delivered by accredited courier at th e expense o f
such party. When a party sum m oned by publication
has failed to appear in the action, judgm ents, final
orders or resolutions against him or her shall be
served upon him or her also by m eans o f publication
at th e expense o f th e prevailing party.” (9a)

COMMENTS:
Q: How to serve jud g m en ts, final orders, or resolution?
A: Judgments, final orders, or resolutions shall be served
either personally or by registered mail.

Case Law:

As a rule, judgments axe sufficiently served when they

are delivered personally, or through registered mail to the
counsel of record, or by leaving them in his office with his
clerk or with a person having charge thereof. After service, a
judgment or order which is not appealed nor made subject
of a motion for reconsideration within the prescribed 15-day
period attains finality. (Spouses Ernesto and Vicenta Topacio
vs. Banco Filipino Savings and Mortgage Bank, G.R. No.
157644, November 17, 2010)
700 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hen is service of reso lu tio n o f th e co u rt by registered

m ail deem ed co m p lete?
A: Resolution of the court is deemed served upon actual
receipt of the addressee.

I^ C a s e ^ a w J

In the case at bar, a copy of the September 23, 2016

Resolution was sent to Atty. Santos at his registered address
in Meycauayan, Bulacan. On November 8, 2016, the CA sent
a tracer to the Postmaster of Meycauayan, Bulacan, directing
him to inform the court of the exact date when the said letter
was delivered to and received by the addressee. However, prior
to the receipt of the Postmaster’s reply, CA already issued its
assailed November 28, 2016 Resolution denying petitioner’s
MR for having been belatedly filed, apparently reckoning the
same from petitioner’s receipt of his personal notice of the
September 23, 2016 Resolution on October 5, 2016.
CA received the Postmaster’s reply on December 2, 2016
informing the court that Atty. Santos received the Resolution
on October 11, 2016. Consequently, petitioner had 15 days
from such receipt, or until October 26, 2016, within which to
file his MR. Thus, petitioner’s MR was timely filed. (Michael
Adriano Calleon vs HZSC Realty Corporation, et al., G.R. No.
228572, January 27, 2020)

Q: Is service o f ju d g m en ts, final orders, or reso lu tio n s

by priv ate co u rier allowed?
A: Yes, as prescribed by the above-cited rule, 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.

Q: How will th e ju d g m en ts, final orders or reso lu tio n be

served in case th e p arty w as sum m oned by publication?
A: 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
means of publication at the expense of the prevailing party.
 CHAPTER IX 701
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

l 4. C onventional Service or Filing o f O rders, Pleadings

E an d O th er D ocum ents:

Sec. 14, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on conventional service of final orders, pleadings
and other documents. It states that:
“Sec. 14. Conventional service orfiling of orders,
pleadings and other documents. - N otw ithstanding
th e foregoing, th e following orders, pleadings, and
other d ocum ents m ust be served or filed personally
or by registered m ail w hen allowed, and shall not
be served or filed electronically, u n less express
perm ission is granted by th e Court:
(a) Initiatory pleadings and initial responsive
pleadings, su ch as an answer;
(b) Subpoenas, p rotection orders, and writs;
(c) A ppendices and exh ib its to m otions, or other
docum ents th at are n ot readily am enable to electronic
scanning m ay, at th e option o f th e party filing such,
be filed and served conventionally; and
(d) Sealed and confidential docum ents or records.
In)”
COMMENTS:
Q: How is conven tio n al service o f orders, pleadings, and
o th e r d o cu m en ts m ade?
A: 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;
(c) Appendices and exhibits to motions, or other
documents that are not readily amenable to electronic
702 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

scanning may, at the option of the party filing such, be filed

and served conventionally; and
(d) Sealed and confidential documents or records.

15. C om pleteness of Service:

Sec. 15, Rule 13 of th e 2019 A m endm ents to th e

1997 Rules on Civil Procedure (A.M. No. 19-10-20) provide
for the rules on completeness of service. It states that:
“S ection 15. Completeness o f service. — Personal
service is com plete upon actual delivery. Service by
ordinary mail is com plete upon th e expiration o f ten
(10) calendar days after m ailing, unless th e court
otherw ise provides. Service by registered mail is
com plete upon actual receipt by th e addressee, or after
five (5) calendar days from th e date he or she received
the first n otice of th e postm aster, whichever date
is earlier. Service by accredited courier is com plete
upon actual receipt by th e addressee, or after at least
two (2) attem pts to deliver by th e courier service, or
upon th e expiration o f five (5) calendar days after th e
first attem pt to deliver, whichever is earlier.
Electronic service is com plete at th e tim e o f the
electronic transm ission o f th e docum ent, or when
available, at th e tim e that the electronic notification
o f service o f th e docum ent is sen t. Electronic service
is not effective or com plete if th e party serving the
docum ent learns that it did not reach th e addressee
or person to be served.
Service by facsim ile transm ission is com plete
upon receipt by the other party, as indicated in the
facsim ile transm ission printout.” (10a)

COMMENTS:
Q: When is personal service deem ed com plete?
A: Personal service is complete upon actual delivery.
Q: When is service by ordinary m ail deem ed com plete?
A: Service by ordinary mail is complete upon the expiration
of ten (10) calendar days after mailing, unless the court
otherwise provides.
 CHAPTER IX 703
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
Q: W hen is service by reg istered m ail deem ed com plete?
A: Service by registered mail is complete upon:
1) Actual receipt by the addressee; or
2) After five (5) calendar days from the date he or she
received the first notice of the postmaster, whichever date is
earlier (Constructive service rule).
Q: When is service by reg istered m ail deem ed com plete?
A: Service by registered mail is deemed complete upon
actual receipt by the addressee.

It is a rule generally accepted that when the service is to

be made by registered mail, the service is deemed complete
and effective upon actual receipt by the addressee as shown
by the registry return card. (Dela Cruz, et al. vs. Dela Cruz, et
al., G.R. No. L-48697, April 15, 1988, 160 SCRA 361)

Q: When is c o n stru ctiv e service deem ed com plete

( C o n s tr u c tiv e S e r v ic e R u le )?
A: The completeness of which is determined upon expiration
of five days from the date the addressee received the first
notice of the postmaster.

Case Law:
The rule on service by registered mail contemplates two
situations: (1) actual service the completeness of which is
determined upon receipt by the addressee of the registered
mail; and (2) constructive service, the completeness of which
is determined upon expiration of five days from the date the
addressee received the first notice of the postmaster. Insofar
as constructive service is concerned, there m ust be conclusive
proof that a first notice was duly sent by the postmaster to the
addressee. Not only is it required that notice of the registered
mail be issued but that it should also be delivered to and
received by the addressee. Notably, the presumption that
official duty has been regularly performed is not applicable
704 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

in this situation. It is incumbent upon a party who relies on

constructive service to prove that the notice was sent to, and
received by, the addressee. The best evidence to prove that
notice was sent would be a certification from the postmaster
who should certify not only that the notice was issued or sent
but also as to how, when and to whom the delivery and receipt
was made. The mailman may also testify that the notice was
actually delivered. (Jose Mel B e m a rte vs. Phil. B a sketb a ll
A ssociation [PBA], e t al., G.R. No. 192084, S ep tem b er 14, 2011)

Q: W hen is service by p riv ate co u rier deem ed com plete?

A: Service by accredited courier is complete upon actual
receipt by the addressee, or after at least two (2) attempts to
deliver by the courier service, or upon the expiration of five
(5) calendar days after the first attempt to deliver, whichever
is earlier.
Q: When is electro n ic service deem ed com plete?
A: 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 of the document is
sent.
Q: When is electro n ic service n o t deem ed com plete or
effective?
A: Electronic service is not effective or complete if the
party serving the document learns that it did not reach the
addressee or person to be served.
Q: W hen is service by facsim ile tran sm issio n deem ed
com plete?
A: Service by facsimile transmission is complete upon
receipt by the other party, as indicated in the facsimile
transmission printout.

16. Proof o f Filing:

Sec. 16, Rule 13 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19*10-20) provides for
the rules on proof of filing. It states that:
 CHAPTER IX 705
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
"Sec. 16. Proof o ffilin g . — The filing o f a pleading
or any other court subm ission shall be proved by its
ex iste n c e in th e record o f th e case:
(a) If th e pleading or any other court subm ission
is n ot in th e record, but is claim ed to have been filed
personally, th e filing shall be proven by th e w ritten or
stam ped acknow ledgm ent o f its filing by th e clerk o f
court on a copy o f th e pleading or court subm ission;
(b) If th e pleading or any other court subm ission
w as filed by registered m ail, th e filing shall be proven
by th e registry receipt and by th e affidavit o f th e
person who m ailed it, con taining a full sta tem en t o f
th e date and place o f d ep osit o f th e m ail in th e post
office in a sealed envelope addressed to th e court,
w ith postage fully prepaid, and w ith in stru ction s to
th e postm aster to return th e m ail to th e sender after
ten (10) calendar days if n ot delivered.
(c) If th e pleading or any other court subm ission
w as filed through an accredited courier service, th e
filin g shall be proven by an affidavit o f service o f th e
person who brought th e pleading or other docum ent
to th e service provider, togeth er w ith th e courier's
official receipt and docum ent tracking number.
(d) If th e pleading or any other court
subm ission was filed by electron ic m ail, th e sam e
shall be proven by an affidavit o f electron ic filing o f
th e filing party accom panied by a paper cop y o f th e
pleading or other docum ent tran sm itted or a w ritten
or stam ped acknow ledgm ent o f its filing by th e clerk
o f court. If th e paper copy se n t by electron ic m ail w as
filed by registered m ail, paragraph (b) o f th is Section
applies.
(e) If th e pleading or any other court subm ission
was filed through other authorized electron ic m eans,
th e sam e shall be proven by an affidavit o f electron ic
filing o f th e filing party accom panied by a cop y o f the
electron ic acknow ledgm ent o f its filing by th e court.”
(12a)

COMMENTS:
Q: How to prove filing o f pleading o r co u rt subm ission?
A: The filing of a pleading or any other court submission
shall be proved by its existence in the record of the case.
706 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: How to prove filing o f pleading o r co u rt subm ission

w hich is n o t on reco rd ?
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 proven by the written or stamped acknowledgment
of its filing by the clerk of court on a copy of the pleading or
court submission.

Q: How to prove filing o f pleading o r c o u rt subm ission

by reg istered m ail?
A: If the pleading or any other court submission was filed
by registered mail, the filing shall be proven by:
1) The registry receipt; and
2) 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.

Q: Is c u t p rin t-o u t copy o f th e reg istry re c e ip t appended

to th e pleading a com pliance w ith th e service o f pleading
by reg istered m ail?
A: No. The rule requires to be appended the registry
receipts, not their reproductions, hence, the cut print-outs
did not substantially comply with the rule.

Section 13 thus requires that if the service is done by

registered mail, proof of service shall consist of the affidavit
of the person effecting the mailing and the registry receipt,
both of which m ust be appended to the paper being served. A
compliance with the rule is mandatory, such that there is no
proof of service if either or both are not submitted.
Here, the petition for certiorari only carried the affidavit of
service executed by one Marcelino T. Pascua, J r., who declared
that he had served copies of the petition by registered mail
 CHAPTER IX 707
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
“under Registry Receipt Nos. 70449, 70453, 70458, 70498
and 70524 attached to the appropriate spaces found on
pages 64-65 of the petition.” The petition only bore, however,
the cut print-outs of what appeared to be the registry receipt
numbers of the registered matters, not the registry receipts
themselves. The rule requires to be appended the registry
receipts, not their reproductions. Hence, the cut print-outs
did not substantially comply with the rule. This was the reason
why the Court held in the resolution of August 19, 2014 that
the petitioner did not comply with the requirement of proof
of service. (Fortune Life In su ra n ce C om pany, Inc. vs. (COA)
Proper; COA Regional Office No. V l-W estem V isayas; A udit
Group LGS-B, Province o f Antique; a n d Provincial G overnm ent
o f A ntique, G.R. No. 2 1 3 5 2 5 , J a n u a ry 27, 2015)

Q: How to prove filing o f pleading or co u rt subm ission

th ro u g h accred ited co u rier?
A: If the pleading or any other court submission was filed
through an accredited courier service, the filing shall be
proven by:
1) An affidavit of service of the person who brought the
pleading or other document to the service provider;
2) Together with the courier’s official receipt and
document tracking number.
Q: W hat will be th e p roof o f m ailing if service is m ade
th ro u g h an accred ited p riv ate co u rier?
A: To prove service by a private courier or ordinary mail, a
party m ust attach an affidavit of the person who mailed the
motion or pleading.

|| Case LawT]
Nevertheless, although they pertain to different acts,
filing and service go hand-in-hand and must be considered
together when determining whether the pleading, motion, or
any other paper was filed within the applicable reglementary
period. Precisely, the Rules require every motion set for
hearing to be accompanied by proof of service thereof to the
708 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

other parties concerned; otherwise, the court shall not be

allowed to act on it, effectively making such motion as not
filed.
The kind of proof of service required would depend
on the mode of service used by the litigant, as stated in
Rule 13, Section 13 of the Rules of Court. In some decided
cases, the Court considered filing by private courier as
equivalent to filing by ordinary mail. The Court opines that
this pronouncement equally applies to service of pleadings
and motions. Hence, to prove service by a private courier or
ordinary mail, a party m ust attach an affidavit of the person
who mailed the motion or pleading. Further, such affidavit
m ust show compliance with Rule 13, Section 7 of the Rules
of Court. (Philippine Savings Bank vs. Josephine L. Papa, G.R.
No. 200469, January 15, 2018)
Q: How to prove filing o f pleading o r co u rt subm ission
by electro n ic m ail?
A: If the pleading or any other court submission was filed
by electronic mail, the same shall be proven by:
1) An affidavit of electronic filing of the filing party
accompanied by a paper copy of the pleading or other
document transmitted; or
2) A written or stamped acknowledgment of its filing
by the clerk of court.
3) If the paper copy sent by electronic mail was filed by
registered mail, paragraph (b) of this Section applies.

Q: How to prove filing o f pleading or co u rt subm ission

th ro u g h o th e r au th o rized electro n ic m eans?
A: If the pleading or any other court submission was filed
through other authorized electronic means, the same shall be
proven by:
1) An affidavit of electronic filing of the filing party;
2) It must be accompanied by a copy of the electronic
acknowledgment of its filing by the court.
 CHAPTER IX 709
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

|^ 1 7 ^ P r o o f o f Service;

Sec. 17, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on proof of service. It states that:
“Sec. 17. Proof o f s e r v ic e . Proof o f personal
service shall c o n sist o f a w ritten adm ission o f th e
party served, or th e official return o f th e server,
or th e affidavit o f th e party serving, containing a
statem en t o f th e date, place, and m anner o f service.
If th e service is m ade by:
(a) Ordinary m ail. - Proof shall c o n sist of
an affidavit o f th e person m ailing statin g th e facts
show ing com pliance w ith Section 7 o f th is Rule.
(b) R egistered m ail. - Proof shall be m ade by
th e affidavit m entioned above and th e registry receipt
issu ed by th e m ailing office. The registry return
card shall be filed im m ediately upon its receipt by
th e sender, or in lieu thereof, th e unclaim ed letter
togeth er w ith th e certified or sworn copy o f th e n otice
given by th e postm aster to th e addressee.
(c) A ccredited courier service. - Proof shall
be m ade by an affidavit o f service execu ted by th e
person who brought th e pleading or paper to th e
service provider, togeth er w ith th e courier’s official
receipt or docum ent tracking number.
(d) E lectronic m ail, facsim ile, or other
authorized electronic m eans o f transm ission. - Proof
shall be m ade by an affidavit o f service execu ted by
th e person who se n t th e e-m ail, facsim ile, or other
electron ic tran sm ission, together with a printed proof
o f tran sm ittal.” (13a)

COMMENTS:
Q: How to prove perso n al service of pleading or co u rt
subm ission?
A: 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
statement of the date, place, and manner of service.
710 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: How to prove service o f pleading or co u rt subm ission

by ordinary m ail?
A: In case of service by ordinary mail its proof shall consist
of an affidavit of the person mailing stating the facts showing
compliance with Section 7 of this Rule.

Q: How to prove service o f pleading or c o u rt subm ission

by reg istered m ail?
A: Proof shall be made by the affidavit mentioned above
and the registry receipt issued by the mailing office.

Q: W hat is th e effect o f failure to a tta c h th e affidavit of

service?
A: The failure to attach the required affidavit of service is
not fatal.

Case Law:

The failure to attach the required affidavit of service

is not fatal and the registry receipt attached to the petition
clearly shows service to the other party. (Phil. N ational B a n k
vs. C om m issioner o f Internal R evenue, G.R. No. 172458,
D ecem ber 14, 2011)

Q: In case of co nflict betw een th e registry re tu rn card

and w ritte n n o te o f th e p a rty w hich one shall prevail?
A: The registry return card is given weight which is
presumed to be accurate since it is considered as the official
record of the court.

|_ ^ a s e L a w J

Thus, between the registry return card and said written

note, the former commands more weight. Not only is the
former considered as the official record of the court, but
also as such, it is presumed to be accurate unless proven
otherwise, unlike a written note or record of a party, which
is often self-serving and easily fabricated. (Sps. E lizabeth
 CHAPTER IX 711
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
Dela Cruz a n d Alfredo Dela C ruz vs. Olga Ram iscal, G.R. No.
137882, February 4, 2005)

Q: W hat is th e d u ty o f th e sen d er?

A: 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.

Q: How to prove service o f pleading or co u rt subm ission

by accred ited co u rier service?
A: Proof of service of pleading or court submission by
accredited courier service shall be proven by:
1) An affidavit of service executed by the person who
brought the pleading or paper to the service provider;
2) It m ust be with the courier’s official receipt or
document tracking number.

Q: How to prove service o f pleading or co u rt subm ission

by electro n ic m ail, facsim ile, or o th e r au th o rized
electro n ic m ean s o f tra n sm issio n ?
A: 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.

18. C ourt Issued O rders and O ther

Sec. 18, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule electronic service of court-issued orders and other
documents. It states that:
“Sec. 18. Court-issued orders a n d oth er
docum ents. — The court m ay electronically serve
orders and other d ocum ents to all th e parties in th e
case w hich shall have th e sam e effect and validity as
provided herein. A paper copy o f th e order or other
docum ent electronically served shall be retained and
attached to th e record o f th e c a se.” (n)
712 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: Can th e co u rt electro n ically serve its orders and
o th e r d o cu m en ts to all th e p a rtie s?
A: Yes, as mandated by the above provision of the rules, 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.
Q: W hat is th e d u ty o f th e co u rt?
A: A paper copy of the order or other document electronically
served shall be retained and attached to the record of the
case.

19. Notice o f Lis Pendens:

Sec. 19, Rule 13 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on notice of lis pendens. It states that:
“Sec. 19. Notice o f lis pen den s. — In an action
affecting th e title or th e right o f p ossession o f real
property, th e plain tiff and th e defendant, w hen
affirm ative relief is claim ed in h is or her answer, m ay
record in th e office o f th e registry o f deeds o f th e
province in w hich th e property is situ ated a n o tice o f
th e pendency o f th e action . Said n otice shall contain
th e nam es o f th e parties and th e object o f th e action
or d efen se, and a description o f th e property in
th a t province affected thereby. Only from th e tim e
o f filing su ch n otice for record shall a purchaser, or
encum brancer o f th e property affected thereby, be
deem ed to have con stru ctive n o tice o f th e pendency
o f th e action , and only o f its pendency against the
parties designated by th eir real nam es.
The n o tic e o f Us p en d en s hereinabove m en tioned
m ay be cancelled only upon order o f th e court, after
proper show ing th at th e n o tice is for th e purpose of
m olestin g th e adverse party, or th at it is n ot necessary
to protect th e rights o f th e party who caused it to be
recorded.” (14a)
 CHAPTER IX 713
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
COMMENTS:
Q: W hat is lis p e n d e n s ?
A: Lis p e n d e n s which literally means pending suit refers to
the jurisdiction, power or control which a court acquires over
the property involved in a suit, pending the continuance of
the action, and until final judgment.

jj^ J a s e L a w :

Lis p e n d e n s which literally means pending suit refers to

the jurisdiction, power or control which a court acquires over
the property involved in a suit, pending the continuance of
the action, and until final judgment. Founded upon public
policy and necessity, lis p e n d e n s is intended to keep the
properties in litigation within the power of the court until
the litigation is terminated, and to prevent the defeat of the
judgment or decree by subsequent alienation. Its notice is an
announcement to the whole world that a particular property
is in litigation and serves 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 said property.
(J. C asim C onstruction Supplies, Inc., R egistrar o f D eed s o f
L a s Pinas, In testa te E sta te o f Bruneo F. Casim , [Purported[
Intervenor, G.R. No. 168655, J u ly 2, 2010)

Q: When can a n o tice o f lis p e n d e n s be availed of?

A: 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, 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.
Q: W hat are th e actio n s w here n o tice of L is p e n d e n s is
p rop er?
A: A notice of lis p e n d e n s is only valid and effective when it
affects title over or right of possession over a real property.
714 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Relative thereto, a notice of lis p e n d e n s is proper in the

following actions and their concomitant proceedings:
(a) an action to recover possession of real estate;
(b) an action to quiet title thereto;
(c) an action to remove clouds thereon;
(d) an action for partition; and
(e) any other proceedings of any kind in Court directly
affecting the title to the land or the use or occupation thereof
or the buildings thereon.
Thus, a notice of lis p e n d e n s is only valid and effective
when it affects title over or right o f p o s s e s s io n o f a real property.
(V ashdeo G agoom al vs. S p o u se s R am on a n d N atim dad
Villacorta, G.R. No. 192813, J a n u a ry 18, 2012)

Q: W hat are th e c o n te n ts o f a n o tice o f lis p e n d e n s ?

A: Said notice shall contain the following, to wit:
1) The names of the parties;
2) The object of the action or defense; and
3) The description of the property in that province
affected thereby.
Q: W hen does th e n o tice o f lis p e n d e n s deem ed a
c o n stru ctiv e n o tice to p u rch aser o r en cu m b ran cer?
A: 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.

Q: W hat is th e necessary in cid e n t o f registering a no tice

of lis p e n d e n s ?
A: A necessary incident of registering a notice of lis p e n d e n s
is that the property covered thereby is effectively placed, until
the litigation attains finality, under the power and control of
 CHAPTER IX 715
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
the court having jurisdiction over the case to which the notice
relates.

Case Law:
A necessary incident of registering a notice of lis p e n d e n s
is that the property covered thereby is effectively placed, until
the litigation attains finality, under the power and control
of the court having jurisdiction over the case to which the
notice relates. In this sense, parties dealing with the given
property are charged with the knowledge of the existence of
the action and are deemed to take the property subject to the
outcome of the litigation. It is also in this sense that the power
possessed by a trial court to cancel the notice of lis p e n d e n s
is said to be inherent as the same is merely ancillary to the
main action. (J. C asim Construction Supplies, Inc., Registrar
o f D eeds o f L as Pinas, In testa te E sta te o f Bruneo F. Casim,
[Purported] Intervenor, G.R. No. 168655, J u ly 2, 2010)

Q: What is th e dual effect of filing of notice L is p e n d e n s ?

A: The filing of notice of lis p e n d e n s is intended to keep the
property subject matter of the litigation within the power of
the court, and to bind a purchaser of the property.

Case Law:
The filing of a notice of lis p e n d e n s 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 (2) to bind a purchaser, bona fid e or otherwise,
of the property subject of the litigation to the judgment that
the court will subsequently promulgate. (V ashdeo Gagoomal
vs. S p o u ses R am on a n d N atiindad Villacorta, G.R. No. 192813,
J a n u a ry 18, 2012)

Q: What are th e grounds for the cancellation of notice

of lis p e n d e n s ?
A: The notice of lis p e n d e n s hereinabove mentioned may be
cancelled only upon order of the court, after proper showing
that:
716 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1) The notice is for the purpose of molesting the

adverse party; or
2) That it is not necessary to protect the rights of the
party who caused it to be recorded.

Q: W hat are th e o th e r recognized grounds for cancellation

of no tice o f lis p e n d e n s ?
A: The Other recognized grounds for cancellation for the
cancellation of notice of lis p e n d e n s are as follows:
(a) there are exceptional circumstances imputable to
the party who caused the annotation;
(b) the litigation was unduly prolonged to the prejudice
of the other party because of several continuances procured
by petitioner;
(c) the case which is the basis for the lis p e n d e n s
notation was dismissed for non-prosequitur on the part of
the plaintiff; or
(d) judgment was rendered against the party who
caused such a notation. (S pouses R a m o n a n d Ligaya G onzales
vs. M arm aine R ea lty Corporation, G.R. No. 2 1 4 2 4 1 , Ja n u a ry
13, 2016)

Q: When is a n o tice o f lis p e n d e n s deem ed cancelled?

A: A notice of lis p e n d e n s shall be deemed cancelled only
upon the registration of a certificate of the clerk of court in
which the action or proceeding stating the case was terminated
or decision is in favor of the defendant.

Case Law:

A notice of lis p e n d e n s 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 favor of the
defendant or the action was disposed of terminating finally
all rights of the plaintiff over the property in litigation. (AFP
M utual B enefit Association, Inc. vs. Court o f A ppeals, G.R. No.
104769, March 3, 2000, 3 2 7 SCRA 203, 214-215)
 CHAPTER IX 717
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
Q: Who m ay order th e cancellation of notice of lis
pen den s?
A: Only the court having jurisdiction over the main action or
proceeding involving the property may order the cancellation
of notice of lis p en d en s.

| Caae Law:
A necessary incident of registering a notice of lis p e n d e n s
is that the property covered thereby is effectively placed, until
the litigation attains finality, under the power and control of
the court having jurisdiction over the case to which the notice
relates. In this sense, parties dealing with the given property
are charged with the knowledge of the existence of the action
and are deemed to take the property subject to the outcome of
the litigation. It is also in this sense that the power possessed
by a trial court to cancel the notice of lis p e n d e n s is said to be
inherent as the same is merely ancillary to the main action.
(Republic o f the Philippines vs. The Heirs o f S p o u ses Florentino
a n d Pacencia Molinyawe, G.R. No. 217120, April 18, 2016)

Q: D istinctions betw een lis pendens and litis pendentia?

Lis Pendens Litis Pendentia

a) Lis pendens is available a) Litis pendentia is a Lat­
as a remedy in case a real in term, which literally
property is the subject of means ‘a pending suit’and
an action affecting the title is variously referred to
or the right of possession in som e d ecisions as lis
of real property, wherein pendens and outer ac­
the plaintiff and the defen­ tion pendant. As a ground
dant, when affirmative re­ for the dismissal of a civil
lief is claimed in his answer action, it refers to the situ­
may record in the office of ation where two actions
the registry of deeds of the are pending between the
province in which the prop­ same parties for the same
erty is situated a notice of cause of action, so that
the pendency of the action; one of them becomes un­
necessary and vexatious”
718 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(Philippine National Bank

vs. Gateway Property Hold­
ings, Inc., G.R. No. 181485,
February 15, 2012);
b) The purpose o f lis p e n ­ b) The purpose o f litis pen-
d e n s are as follow: 1) to d e n tia is for the dismissal
keep the property subject of the action under Sec.
matter of the litigation 12(2) of Rule 15 in order to
within the power of the avoid multiplicity of suits;
court until the entry of the
final judgment in order to
prevent the defeat of the
final judgment by succes­
sive alienations; and (2)
to bind a purchaser, bona
fide or otherwise, of the
property subject of the liti­
gation to the judgment that
the court will subsequent­
ly promulgate (Vashdeo
Gagoomal vs. Spouses
Ramon and Natividad Vil-
lacorta, G.R. No. 192813,
January 18, 2012);

c) Lis p e n d e n s is made c) L itis p e n d e n tia is availed

through notice to be of by way of a motion to dis­
filed with the Regis­ miss and filed with the court
ter of Deeds where the where the case is pending;
property is located;
d) In case of denial o f n otice d) If the motion to dismiss
o f lis p e n d e n s by the Reg­ on the ground of litis pen­
ister of Deeds, the remedy dentia, the remedy is to
of the aggrieved party is to file th e answer raising
appeal within five (5) days the ground as an affirma­
to the Land Registration tive defense within the re­
Authority En Consulta un­ maining period but in no
der Sec. 117 of P.D. 1529; case less than five (5) days;
e) N otice o f lis p e n d e n s can e) Am otion to dism iss based
be filed after the filing of on litis pendentia should
the action in court, but be­ be filed before the filing
fore finality of judgment. of a responsive pleading.
 CHAPTER IX 719
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS
Q: W hat is th e rem edy in case o f denial of th e Notice of
Lis pendens by th e R egister of Deeds?
A: Aggrieved party may appeal the Order to the Land
Registration Authority En Consulta within five (5) days as
provided by Sec. 117 o f P.D. 1529 Property Registration Decree.

Substantive Basis:

Sec. 117 o f P.D. 1529 otherw ise known as th e

Property R egistration Decree provides for the remedy of
appeal from the denial of the Register of Deeds to the Land
Registration Authority. It states that:
"See. 117. Procedure. — When th e Register o f
Deeds is in doubt w ith regard to th e proper step to
be taken or memorandum to be made in pursuance
o f any deed, m ortgage or other instrum ent presented
to him for registration, or where any party in in terest
does not agree with th e action taken by the Register
o f Deeds with reference to any such instrum ent, th e
question shall be subm itted to th e Com m issioner o f
Land Registration by th e Register o f Deeds, or by th e
party In in terest thru th e Register o f Deeds. Where
the instrument is denied registration, the Register
of Deeds shall notify the interested party in writing,
setting forth the defects of the instrument or legal
grounds relied upon, and advising him that if he
is not agreeable to such ruling, he may, without
withdrawing the documents from the Registry,
elevate the matter by consulta within five days from
receipt of notice of the denial of registration of the
Commissioner of Land Registration upon payment of
a consulta fee in such amount a s shall be prescribed
by the Commissioner o f Land Registration.
The Register o f Deeds shall m ake a memorandum
o f the pending consulta on th e certificate o f title
w hich shall be cancelled motu proprio by th e Register
o f Deeds after final resolution or decision thereof, or
before resolution, if withdrawn by petitioner.
The Com m issioner o f Land Registration, co n si­
dering th e consulta and th e records certified to him
after n otice to the parties and hearing, shall enter an
order prescribing th e step to be taken memorandum
to be made. His resolution or ruling in consultas
720 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

■hall be con clu sive and binding upon all R egisters

o f D eeds, provided, th a t th e party in in terest who
disagrees w ith th e final resolution , ruling or order o f
th e C om m issioner relative to con su ltas m ay appeal
to th e Court o f Appeals w ithin th e period and in th e
m anner provided in Republic Act No. 5 4 3 4 .”

S a m p le F o r m N o . 1; N o t i c e o f L is P e n d e n s ( S e c . 14. R u le 13)

REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region
REGIONAL TRIAL COURT
Branch___ , Manila
JUAN DELA CRUZ,
Plaintiff,
- versus - CIVIL CASE NO.__________
For: Action for recovery of land
with Damages
JOSE R. REYES,
Defendant.
x ------------------------ x
NOTICE OF LIS PENDENS

TO: The Register of Deeds

City of Manila
Sir:
Please register a notice of lis pendens of Civil Case
No.______ on TCT No.____ of the Registry of Deeds for
City Province o f______ , covering a parcel of land which
is involved in the above-entitled case now pending before
the Regional Trial Court of Manila. 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.____ is described in said title as follows:
 CHAPTER IX 721
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

(Copy technical descriptions of the land.)

May we therefore your Honorable Office to make the
proper annotation of the above notice of lis pendens at the
back of the said title.
Manila, January 5, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Ermita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Ermita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 4990562/1-14-16/Mla.
Roll No. 38488
MCLE Exemption No. V 000678/8-25-15
Tel. No. 521-6137
CC: ATTY. DONALD O. CHAN
Counsel for the defendant
128 Taft Avenue, Malate, Manila
EXPLANATION OF SERVICE
Copy of the Notice of Lis Pendens was served to the
defendant by registered mail due to time and distance
constraints, and for lack of the undersigned’s staff who can
serve the same in person.
FERDINAND A. TAN

| Sam ple Legal Form.

1) Written Explanation of Service of Pleading;

2) Affidavit of Service of Pleading.
722 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8 a m p le F o r m Wo. 2; E x p l a n a t i o n o f S e r v i c e or P le a d in g a n d
O t h e r P a p e r s ( S e c . 11. R u l e 13)

EXPLANATION OF SERVICE (SEC. 11, RULE 13)

Copy ofthe Motion to Discharge was served to the plaintiff

by registered mail due to time and distance constraints, and
for lack of the undersigned’s staff who can serve the same in
person.
HECTOR A. YULO

S a m p le F o r m N o . 3 ; A f f i d a v i t o f S e r v i c e o f P l e a d i n g

REPUBLIC OF THE PHILIPPINES)

IN THE CITY OF MANILA ) S.S.
AFFIDAVIT OF SERVICE

I, RICHARD S. SALINAS, of legal age, Filipino citizen,

and with office address at 506 Don Santiago Bldg., 1344
Taft Ave., Ermita, Manila, after having been duly sworn to
in accordance with law do hereby depose and say that:
I am the liaison officer of TAN LIBRANDA ONEZA AND
CEPILLO LAW OFFICE counsel for the petitioner, and I
have today served by registered mail with return card to:
1) HON. COURT OF APPEALS. REG. RECEIPT NO.__
T enth D ivision DATE:____________
Padre Faura Street, PLACE:___________
Ermita Manila
2) National Labor R elations REG. RECEIPT NO.
C om m ission DATE:____________
PPSTA Bldg, Banawe PLACE:___________
corner P. Florentino Street,
Quezon City
3) ATTY. JOSE P. REYES REG. RECEIPT NO.__
Counsel for the Respondent DATE:_______________
5 2 0 M.H. Del Pilar S t., PLACE:______________
Malanday, Valenzuela City
 CHAPTER IX 723
RULE 13: FILING AND SERVICE OF PLEADINGS
JUDGMENTS AND OTHER PAPERS

Copy of the Petition for Certiorari in the case of SAF

INTERNATIONAL MANPOWER SERVICES, and HAS8IM
AND JANET F. FAALAM versus NATIONAL LABOR
RELATIONS COMMISSION, JUAN DELA CRUZ, docketed
as S.C. G.R. NO. __________________ For: P etition for
Review on Certiorari (C.A. Q.R. SP No. 111469) as
evidenced by the Registry Receipt indicated opposite his
name copy of which is attached in the original copy of said
pleading.
I am executing this Affidavit of Service to attest to the
truth of the foregoing facts and for any legal purposes it may
serve.
IN WITNE88 WHEREOF, I have hereunto affixed any
signature this ___ day of January 2020, in the City of
Manila.
RICHARD S. SALINAS
-Affiant-
SUB8CRIBED AND SWORN to before me this___day
of January 2020, in the City of Manila, affiant exhibiting
to me his Comm. Tax Cert. No. _________ issued at
_________ issued on , and Driver’s License
No.__________ , a t__________ ,on_____________ .
Doc. No.___;
Page No.__ ;
Book No.___;
Series of 2020.
 CHAPTER X

RULE 14: SUMMONS

A. Basic C oncept:

Q: W hat is sum m ons?

A: Sum m ons is a writ by which the defendant is notified
of the action brought against him or her. In a civil action,
service of summons is the means by which the court acquires
jurisdiction over the person of the defendant. Any judgment
without such service, in the absence of a valid waiver, is null
and void. (Remelita M. Robinson vs. Celita B. Miralles, G.R. No.
163584, December 12, 2006)
Q: W hat are th e two (2) fold purpose of sum m ons?
A: The two (2) fold purpose is for the court to acquire
jurisdiction over the person of the defendant, and to notify
the defendant of the case filed against him.

Case Law:
Summons is a writ by which the defendant is notified of
the action brought against him or her. Its purpose is two-fold:
to acquire jurisdiction over the person of the defendant and
to notify the defendant that an action has been commenced
so that he may be given an opportunity to be heard on the
claim against him. “(C]ompliance with the rules regarding the
service of summons is as much an issue of due process as of
jurisdiction. The essence of due process is to be found in the
reasonable opportunity to be heard and submit any evidence
one may have in support of his defense. It is elementary that
before a person can be deprived of his property, he should

724
 CHAPTER X 725
RULE 14: SUMMONS

first be informed of the claim against him and the theory

on which such claim is premised.” (Nation Petroleum Gas, et
al. vs. R izal Commercial B a n kin g Corporation, su b stitu ted by
Philippine A s s e t G rowth One, Inc., G.R. No. 183370, A u g u st
1 7 ,2 0 1 5 )

Q: W hat are th e two (2) ways of acquiring ju risd ictio n

over th e person o f th e d efen d an t?
A: The two (2) ways of acquiring jurisdiction over the
person of the defendant are either by service of summons or
voluntary appearance.

In civil cases, jurisdiction over the person of the defendant

may be acquired either by service of summons or by the
defendant’s voluntary appearance in court and submission
to its authority. (Optima R ea lty Corporation vs. H ertz Phil.,
Exclusive, Inc., G.R. No. 183035, Ja n u a ry 9, 2013)

Q: W hat are th e kinds o f sum m ons?

A: There are two (2) kinds of summons:
1) Original summons; and
2) Alias summons.

Q: W hat is an original sum m ons?

A: 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.

Q: W hat is an alias sum m ons?

A: Alias summons is a writ issued by clerk of court when the
original summons has been lost or not duly served without
fault on the part of the plaintiff.
726 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e effects o f Invalid service of sum m ons?

A: In case of invalid service of summons the court acquires
no jurisdiction over the person of the defendant and the
judgment shall be null and void.

As a rule, if defendants have not been validly summoned,

the court acquires no jurisdiction over their person, and the
judgment against them shall be null and void. (Sagana vs.
Francisco, G.R. No. 161952, October 2, 2009)

Q: Will lack o f ju risd ictio n over th e defendant through

defective service o f sum m ons a ground for an n u lm en t of
ju d g m en t?
A: Yes, lack of jurisdiction being a valid ground for
annulment of judgments, circumstances that negate the
court’s acquisition of jurisdiction including defective service
of summons are causes for an action for annulment of
judgments.

Case Law:

An action for annulment of judgment may be based on

only two grounds: 1) extrinsic fraud; and 2) lack ofjurisdiction.
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for new
trial or petition for relief.
Lack ofjurisdiction being a valid ground for annulment of
judgments, circumstances that negate the court’s acquisition
of jurisdiction including defective service of summons are
causes for an action for annulment of judgments.
However, this court had an occasion to say that an action
for annulment of judgment “may not be invoked (1) where the
party has availed himself of the remedy of new trial, appeal,
 CHAPTER X 727
RULE 14: SUMMONS

petition for relief, or other appropriate remedy and lost; or (2)

where he has failed to avail himself of those remedies through
his own fault or negligence.” Thus, an action for annulment
of judgment is not always readily available even if there
are causes for annulling a judgment. (Aurora N. De Pedro
vs. R om asan D evelopm ent Corporation, G.R. No. 194751,
N ovem ber 26, 2014)
Q: D istinctions betw een Sum m ons (Rule 14) and
Subpoena (Rule 21)?

Sum m ons Subpoena

a) It is a writ issued by the a) It is a writ issued by the

clerk of court which the
defendant is notified of
the action brought against
him.
b) There are two kinds
of sum m ons which
are original and alias
summons.
c) The purpose o f sum m ons
is to acquire jurisdiction
over the person of the
defendant or the res, and
in compliance with due
process in an action in
rem or quasi-in rem.
d) Rem edy in case of
d efective service of
sum m ons is to file a
motion to dismiss for lack
of jurisdiction over the
person of the defending
party under Rule 16 or
ask for an alias summons.
judge by which a person
is required to appear and
testily before the court or
in an investigation or to
bring documents or books
to the court.
b) There are two kinds of
subpoena which are sub­
poena duces tecum and ad
testificandum.
c) The purpose of subpoena
to require a person
to appear and testify
before the court or in an
investigation or to bring
documents or books to the
court.
d) While in subpoena, the
remedy is a motion to
quash subpoena.
728 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

e) Summons is issued by the e) Subpoena is issued by the

clerk of court upon receipt judge during trial.
of the complaint and the
corresponding payment of
docket and other lawful
fees or when the original
summons has not been
served or was lost without
fault of the plaintiff.

1. Clerk to Issue Sum m ons:

Sec. 1, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on issuance of summons. It states that:
“Sec. 1. Clerk to issu e summons. — Unless the
com plaint is on its face dism issible under Section 1,
Rule 9 , th e court shall, w ithin five (5) calendar days
from receipt o f th e initiatory pleading and proof o f
paym ent o f th e requisite legal fees, direct th e clerk
o f court to issu e the corresponding sum m ons to the
defendants.” (la)
COMMENTS:
Q: When can th e co u rt issue sum m ons?
A: 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.

| ^ ^ ^ ^ c n t s ^ o f S u m m o n s |^

Sec. 2, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the contents of summons. It states that:
 CHAPTER X 729
RULE 14: SUMMONS

“Sec. 2 . Contents. — The sum m on* shall be

directed to th e defendant, signed by th e clerk o f court
under seal, and contain:
(a) The nam e o f th e court and th e nam es o f the
parties to th e action;
(b) When authorized by th e court upon ex p a rte
motion, an authorization for th e plaintiff to serve
sum m ons to th e defendant;
(c) A direction th at the defendant answer
w ithin th e tim e fixed by th e se Rules; and
(d) A n otice th at u n less th e defendant so
answers, plaintiff will take judgm ent by default and
may be granted th e relief applied for.
A copy o f the com plaint and order for appointm ent
o f guardian a d litem, if any, shall be attached to th e
original and each copy o f th e sum m ons.” (2a)

COMMENTS:
Q: W hat are th e co n te n ts o f sum m ons?
A: 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;
(c) A direction that the defendant answer within the
time fixed by these Rules; and
(d) A notice that unless the defendant so answers,
plaintiff will take judgment by default and may be granted
the relief applied for.

Q: W hat is th e accom panying a tta c h m e n t in th e

sum m ons?
A: 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.
730 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

S a m p l e F o r m Wo . 1 ; S p u m o u s ( S e c s . 1 A iro 2 . R u l e 1 4 )

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
MANILA, BRANCH____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO._______
For: Sum of Money with Damages
MR. Y,
Defendant
x ------------------------- x

SUMMONS
TO: MR. Y
GREETINGS:
You are hereby required within thirty (30) 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 the 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 defenses 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_______ , 2020.

Clerk of Court
 CHAPTER X 731
RULE 14: SUMMONS

3. By Whom Served:

Sec. 3, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on who shall serve the summons. It states that:
“See. 3. By whom served. — The sum m ons may
be served by the sheriff, his or her deputy, or other
proper court officer, and in case o f failure o f service
o f sum m ons by them , the court may authorize the
plaintiff — to serve the sum m ons — together with the
sheriff.
In cases where sum m ons is to be served outside
th e judicial region o f th e court where th e case is
pending, th e plaintiff shall be authorized to cause the
service o f sum m ons.
If the plaintiff is a juridical en tity, it shall notify
the court, in writing, and nam e of its authorized
representative therein, attaching a board resolution
or secretary’s certificate thereto, as th e case may be,
stating that such representative is duly authorized to
serve th e sum m ons on behalf o f th e plaintiff.
If th e plaintiff m isrepresents that th e defendant
was served sum m ons, and it is later proved that no
sum m ons was served, th e case shall be dism issed
with prejudice, th e proceedings shall be nullified, and
th e plaintiff shall be m eted appropriate sanctions.
If sum m ons is returned w ithout being served on
any or all the defendants, the court shall order the
plaintiff to cause th e service o f sum m ons by other
m eans available under th e Rules.
Failure to com ply with th e order shall cause
th e dism issal o f th e initiatory pleading w ithout
prejudice.” (3a)

COMMENTS:
Q: Who shall serve th e sum m ons?
A: The summons may be served by the following:
1) Sheriff;
732 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) His or her deputy; or

3) Other proper court officer; and
4) In case of failure of service of summons by them,
the court may authorize the plaintiff —to serve the summons
— together with the sheriff.

Q: Who shall serve th e sum m ons to be served outside of

th e jud icial region o f th e co u rt?
A: 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.

Q: W hat are th e req u irem en ts in case th e plain tiff is a

ju rid ical e n tity ?
A: If the plaintiff is a juridical entity, it shall notify the court,
in writing:
1) The name of its authorized representative therein,
2) Attaching a board resolution or secretary’s certificate
thereto, as the case may be;
3) It shall state that such representative is duly
authorized to serve the summons on behalf of the plaintiff.

Q: W hat are th e effects in case th e p lain tiff com m itted

m isrep resen tatio n in co n n ectio n w ith th e service of
sum m ons to th e plaintiff?
A: If the plaintiff misrepresents that the defendant was
served with summons, and it is later proved that no summons
was served, the case shall be:
1) Dismissed with prejudice;
2) The proceedings shall be nullified; and
3) The plaintiff shall be meted appropriate sanctions.

Q: W hat is th e rule in case sum m ons is retu rn ed w ithout

being served?
A: If summons is returned without being served on any or
all the defendants, the court shall order the plaintiff to cause
 CHAPTER X 733
RULE 14: SUMMONS

the service of summons by other means available under the

Rules.

Q: W hat ia th e san ctio n in case o f failure to com ply w ith

th e order o f th e co u rt?
A: Failure to comply with the order shall cause the dismissal
of the initiatory pleading without prejudice.

Q: Is service of sum m ons to th e resp o n d en t required in

case o f a p e titio n for hab eas corpus?
A: No. Under Rule 102 of the Rules of Court or A.M. No. 03-
04-04-SC, service of summons, to begin with, is not required
in a habeas corpus petition. As held in Saulo v. Cruz, 105 Phil.
315 (1959), a writ of habeas corpus plays a role somewhat
comparable to a summons, in ordinary civil actions, in that,
by service of said writ, the court acquires jurisdiction over the
person of the respondent. (Ma. Hazelina A. Tujan-Militante In
Behalf o f The Minor Criselda M. Cada vs. Raquel M. Cada-
Deapera, (G.R. No. 210636, July 28, 2014)

Q: Is service o f sum m ons to th e resp o n d en t required in

case o f a p e titio n for certio rari, p rohibition, m andam us,
and quo w arran to ?
A: No. it is expressly stated under Section 4 of Rule 46 that,
the court shall acquire jurisdiction over the person of the
respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary
submission to such jurisdiction.

|^ 4 ^ V a lid ity o f 8 um m on»a n d lM u an ce of Alias Sum m ons^

Sec. 4, Rule 14 of th e 2 0 1 9 A m en dm ents to th e 1997

R ules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on the validity of summons and issuance of alias
summons. It states that:
“See. 4 . V alidity o f sum m ons a n d issu ance o f
a lia s sum m ons — Sum m ons shall remain valid until
duly served, u n less it is recalled by th e court. In case
734 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

o f lo ss or destruction o f sum m ons, th e court may,

upon m otion, issu e an alias sum m ons.
There is failure o f service after u n su ccessful at­
tem p ts to personally serve th e sum m ons on th e de­
fendant in h is or her address indicated in th e com ­
plaint. Sub stituted service should be in th e manner
provided under Section 6 o f th is Rule." (5a)

COMMENTS:
Q: W hat is th e validity period o f sum m ons?
A: Summons shall remain valid until duly served, unless it
is recalled by the court.

Q: When can alias sum m ons be issued?

A: In case of loss or destruction of summons, the court
may, upon motion, issue an alias summons.

Q: When is service o f sum m ons considered a failure?

A: There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant in his or her
address indicated in the complaint.

Q: When is su b stitu te d service o f sum m ons be m ade?

A: Substituted service should be in the manner provided
under Section 6 of this Rule.

5. Service in Person on th e D efendant (Bar E xam inations

2017, 2016, and 2013 on Service of Summons):

Sec. 5, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rules on service of summons on the person of the
defendant. It states that:
"See. 5. Service in person on defendant. —
W henever practicable, th e sum m ons shall be served
by handing a copy th ereof to th e defendant in person
and inform ing th e defendant th at he or sh e is being
 CHAPTER X 735
RULE 14: SUMMONS

served, or, if he or sh e refuses to receive and sign for

it, by leaving th e sum m ons w ithin th e view and in th e
presence o f th e defendant.” (6a)

COMMENTS:
Q: How will service o f sum m ons on th e perso n of th e
defen d an t be m ade?
A: Whenever practicable, the summons shall be served by:
1) Handing a copy thereof to the defendant in person
and informing the defendant that he or she is being served;
or,
2) 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.
Q: W hat is th e d u ty o f th e sh eriff if d efen d an t refused to
receive sum m ons?
A: The summons must be tendered to the defendant within
his view and presence.

Case Law:

Service in person on the defendant is the preferred mode

of Service. (Sec. 6, Rule 14 Rules o f Court) If the defendant
refuses the service, the server should not resort to substituted
service. He m ust TENDER it to him. Tendering is a part of
service in person (formerly called *personal service’). If the
defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 of Rule
14 be availed of. (See rule on substituted service)
The sheriff or server m ust first exert all efforts to serve
the defendant in person. If this effort fails, then substituted
service can be made. This effort m ust be stated in the proof
of service. This is required because substituted service is in
derogation of the usual mode of service. (Laus vs. Court of
Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339 SCRA
243; Samartino vs. Raon, 383 SCRA 664, 670 [2002])
736 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: In actio n in personam w hat is th e preferred m ode of

service o f su m m o n s?
A: In an action in personam, the preferred mode of service of
summons and copy of the complaint m ust be made upon the
defendant in person, and only after the attempt at personal
service has become impossible within a reasonable time may
the officer resort to substituted service.

Case Law:

Where the action is in personam and the defendant is

in the Philippines, as in this case, the service of summons
may be done by personal or substituted service as laid out
in Sections 6 and 7 of Rule 14. Indeed, the preferred mode
of service of summons and copy of the complaint (or, as
in this case, the petition for annulment of judgment), the
serving officer m ust first attempt to effect the same upon
the defendant in person. Only after the attempt at personal
service has become impossible within a reasonable time may
the officer resort to substituted service. (Bobie Rose D.V. Frias
vs. Rolando F. Alcayde, G.R. No. 194262, February 28, 2018)

Q: W hat is th e n a tu re o f service o f sum m ons in an actio n

in p erso n am ?
A: The modes of service of summons in an action in personam
must be strictly followed in order that the court may acquire
jurisdiction over the person of the defendant.

|| Case Lawj^J

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
ju st a mere service of summons. The modes of service m ust
be strictly followed in order that the court may acquire
jurisdiction over the person of the defendant. (Umandap vs.
Sabio, Jr., 339 SCRA 243; Gan Hock vs. Court o f Appeals, 197
SCRA 223)
 CHAPTER X 737
RULE 14: SUMMONS

6. S u b stitu te d Service:

Sec. 6, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on substituted service of summons. It states that:
uSec. 6. S u b stitu ted service. — If, for justifiable
cau ses, th e defendant can n ot be served personally
after at lea st three (3) a ttem p ts on two (2) different
d ates, service m ay be effected:
(a) By leaving cop ies o f th e sum m ons at th e
defendant’s residence to a person at lea st eigh teen
(18) years o f age and o f su fficien t discretion residing
therein;
(b) By leaving cop ies o f th e sum m ons at
th e defendant’s office or regular place o f busin ess
w ith som e com p eten t person in charge thereof. A
com p eten t person in clud es, but is n ot lim ited to, one
who custom arily receives correspondences for th e
defendant;
(c) By leaving cop ies o f th e sum m ons, if refused
en try upon m aking h is or her authority and purpose
known, w ith any o f th e officers o f th e hom eow ners’
association or condom inium corporation, or its c h ief
secu rity officer in charge o f th e com m unity or th e
building w here th e defendant m ay be found; and
(d) By sending an electron ic m ail to th e
defendant’s electron ic m ail address, if allow ed by th e
cou rt.” (7a)
COMMENTS:
Q: How will su b stitu te d service o f sum m ons be m ade?
A: 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 by:12
1) 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;
2) By leaving copies of the summons at the defendant’s
office or regular place of business with some competent
738 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

person in charge thereof. A competent person includes, but is

not limited to, one who customarily receives correspondences
for the defendant;
3) 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
4) By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court.
Q: W hat is th e p resu m p tio n in case o f su b stitu te d
service o f sum m ons?
A: A relation of confidence exists between the person with
whom the copy is left and the defendant, and assumes that
he will deliver the process to the defendant.

|_ jC a s e ^ a w |J
The rule presupposes that such a relation of confidence
exists between the person with whom the copy is left and
the defendant and, therefore, assumes that such person will
deliver the process to defendant or in some way give him
notice thereof. (Leah Palma vs. Hon. DaniloP. Galvez, G.R. No.
165273, March 10, 2010)
Q: W hat is th e w eight o f th e certificate of service of th e
process serv er in case o f s u b stitu te d service of sum m ons?
A: The certificate of the process server is a prima facie
evidence of the fact of service, which is fortified by the
presumption of regularity in the performance of duty.

Case Law:
It is well to note that the certificate of service of the
process server is prima facie evidence of the facts as set out
therein. This is fortified by the presumption of the regularity of
performance of official duty. To overcome the presumption of
 CHAPTER X 739
RULE 14: SUMMONS

regularity of official functions in favor of such sheriffs return,

the evidence against it m ust be clear and convincing. Sans the
requisite quantum of proof to the contraiy, the presumption
stands deserving of faith and credit. (Petroleum Gas, et al.
vs. Rizal Commercial Banking Corporation, substituted by
Philippine Asset Growth One, Inc., G.R. No. 183370, August
17, 2015)
Q: W hat are th e req u irem en ts for a valid su b stitu te d
service o f sum m ons?
A: In substituted service of summons to be available, there
must be several attempts by the sheriff, which means at
least three tries, preferably on at least two different dates,
otherwise the service is defective.

[| Case Lawj^
At the outset, it must be stressed that the fact that service
of summons was defective in the instant case is undisputed.
The evidence on record, specifically the Sheriffs Report,
indubitably shows that the established jurisprudential
doctrine on the prerequisites for valid substituted service
was not observed, i.e., for substituted service of summons to
be available, there must be several attempts by the sheriff,
which means at least three tries, preferably on at least two
different dates.
It is crystal clear that there were no several attempts
made to effect personal service in the instant case; as correctly
found by the court a quo, there was only a single day’s effort
to personally serve summons upon the therein defendants.
(United Coconut Planters Bank vs. Sps. Alison Ang-Sy and
Guillermo Sy, Renato Ang, Nena Ang, Ricky Ang, and Derick
Chester Sy, G.R. No. 204753, March 27, 2019)

Q: W hat is th e effect o f failure to com ply w ith th e

req u irem en ts o f s u b stitu te d service?
A: Failure to faithfully comply with the requirements of
substituted service renders the service ineffective.
740 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Failure to faithfully comply with the requirements of

substituted service renders the service ineffective. (Miranda
vs. Court o f Appeals, 326 SCRA 278)

S u b stitu ted service a t th e d efen d an t’s residence:

Q: W hat is th e effect of refusal o f th e d efen d an t to reveal

h is w hereabouts in case o f service o f sum m ons?
A: There was a proper substituted service of summons when
the personal service of summons was made impossible by the
acts of the respondent in refusing to reveal his whereabouts.

There was a proper substituted service of summons when

the personal service of summons was made impossible by the
acts of the respondent in refusing to reveal his whereabouts,
and by the act of his brother in claiming that respondents
no longer lived at No. 36 Sampaguita Street, yet failing to
disclose his brother’s location. (Sagana vs. Francisco, G.R. No.
161952, October 2, 2009)
Q: Can sum m ons be served by s u b stitu te d service to a
defen d an t p erm an en tly residing abroad?
A: No, not being a resident of the address where the
summons was served, the substituted service of summons is
ineffective, hence, the court did not acquire jurisdiction over
the person of the defendant.

Case Law:

The general rule in this jurisdiction is that summons

m ust be served personally on the defendant in accordance
with Section 6, Rule 14 of the Rules of Court.
For justifiable reasons, however, other modes of serving
summons may be resorted to. When the defendant cannot
 CHAPTER X 741
RULE 14: SUMMONS

be served personally within a reasonable time after efforts to

locate him have failed, the rules allow summons to be served
by substituted service. Substituted service is effected by
leaving copies of the summons at the defendant’s residence
with some person of suitable age and discretion then residing
therein, or by leaving the copies at defendant’s office or
regular place of business with some competent person in
charge thereof.
When the defendant’s whereabouts are unknown,
the rules allow service of summons by publication. As an
exception to the preferred mode of service, service of summons
by publication may only be resorted to when the whereabouts
of the defendant are not only unknown, but cannot be
ascertained by diligent inquiry. The diligence requirement
means that there must be prior resort to personal service
under Section 7 and substituted service under Section 8,
and proof that these modes were ineffective before summons
by publication may be allowed. This mode also requires the
plaintiff to file a written motion for leave of court to effect
service of summons by publication, supported by affidavit of
the plaintiff or some person on his behalf, setting forth the
grounds for the application. (Express Padala [Italia] S.P.A.,
now BDO Remittance [Italia] S.P.A. vs. Helen Ocampo, G.R. No.
202505, September 6, 2017)

b) S u b stitu ted service a t th e d efen d an t’s place of ||

business:

Q: W hat Is th e req u irem en t in case sum m ons was

served in th e place o f b u sin ess o f th e d efendant in case
o f su b stitu te d service?
A: It is enough that the person appears to be in charge of
the place of business.

It is not necessary that the person in charge of the

defendant’s place of business be specifically authorized to
receive the summons. It is enough that he appears to be
742 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

in charge. (Gentle Supreme Philippines, Inc. vs. Ricardo F.

Consulta, G.R. No. 183182, September 1, 2010)

W ithout Ju rid ical Personality

Sec. 7, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on service of summons upon entity without juridical
personality. It states that:
wSec. 7. Service upon en tity w ith out Juridical
person ality. — When persons associated in an en tity
w ithout juridical personality are sued under th e nam e
by w hich th ey are generally or com m only known,
service m ay be effected upon all th e defendants by
serving upon any one o f them , or upon th e person in
charge o f th e office or place o f business m aintained
in such nam e. But such service shall not bind
individually any person w hose con n ection w ith th e
e n tity has, upon due n o tice, been severed before th e
action was filed.” (8a)

COMMENTS:
Q: To whom sum m ons shall be served in case of an
e n tity w ith o u t ju rid ical perso n ality ?
A: 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
2) Upon the person in charge of the office or place of
business maintained in such name.

Q: Will service o f sum m ons be binding upon th e person

who severed his relatio n sh ip w ith th e e n tity before th e
actio n ?
A: No, service shall not bind individually any person whose
connection with the entity has, upon due notice, been severed
before the action was filed.
 CHAPTER X 743
RULE 14: SUMMONS

8. Service Upon Prisoners:

Sec. 8, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on service of summons upon prisoners. It states that:
“Sec. 8. Service upon prisoners. — When th e
defendant is a prisoner confined in a jail or in stitu tio n ,
service shall be effected upon him or her by th e officer
having th e m anagem ent o f su ch jail or in stitu tio n who
is deem ed as a special sh eriff for said purpose. The
jail warden shall file a return w ithin five (5) calendar
days from service o f sum m ons to th e defendant.” (9a)

COMMENTS:
Q: To whom sum m ons shall be served in case of a
p riso n er?
A: 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 who
is deemed as a special sheriff for said purpose.

Q: W hat is th e d u ty o f th e ja il w arden?
A: The jail warden shall file a return within five (5) calendar
days from service of summons to the defendant.

9. Service C o n sisten t w ith In te rn atio n al C onventions:

Sec. 9, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on service of summons pursuant to international
convention. It states that:
“Sec. 9 . Service co n sisten t w ith in tern ation al
conventions. — Service m ay be m ade through m ethods
w hich are co n siste n t w ith established international
con ven tion s to which th e Philippines is a party.” (n)
744 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e rule on service o f sum m ons c o n siste n t
w ith in te rn a tio n a l co n v en tio n ?
A: Service may be made through methods which are
consistent with established international conventions to
which the Philippines is a party.*1

10. Service Upon M inors and In co m petents:

Sec. 10, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on service of summons upon minors of incompetent.
It states that:
“S ec. 10. Service upon minora an d incom petents.
— When th e defendant is a m inor, insane or otherw ise
an in com p eten t person, service o f sum m ons shall be
m ade upon him or her personally and on h is or her
legal guardian if he or sh e has on e, or if none, upon
h is or her guardian a d litem w h ose appointm ent
shall be applied for by th e plaintiff. In th e case o f a
m inor, service shall be m ade on h is or her parent or
guardian.” (10a)

COMMENTS:
Q: To whom service o f sum m ons shall be m ade in case
of m in o r or in co m p eten t?
A: When the defendant is a minor, insane or otherwise an
incompetent person, service of summons shall be made upon:
1) 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.
2) In the case of a minor, service shall be made on his
or her parent or guardian.
 CHAPTER X 745
RULE 14: SUMMONS

11. Service to Spouses:

Sec. 11, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on service of summons upon spouses. It states that:
“Sec. 11. Service upon spouses. — When sp ou ses
are sued join tly, service o f sum m ons should be m ade
to each sp ou se individually." (n)

COMMENTS:
Q: W hat is th e rule in case o f service o f sum m ons to
spo u ses?
A: When spouses are sued jointly, service of summons
should be made to each spouse individually.

Service upon D om estic P rivate Ju rid ic a l E ntity:

Sec. 11, Rule 14 o f th e 2019 A m endm ents to th e

1997 Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rule on service of summons upon domestic private
juridical entity. It states that:
“Sec. 12. Service upon dom estic p riv a te Juridical
en tity. — When th e defendant is a corporation,
partnership or a ssociation organized under th e laws
o f th e Philippines w ith a juridical personality, service
m ay be m ade on th e president, m anaging partner,
general m anager, corporate secretary, treasurer, or
in-house cou n sel o f th e corporation w herever th ey
m ay be found, or in th eir absence or unavailability,
on th eir secretaries.
If such service cannot be m ade upon any o f th e
foregoing persons, it shall be m ade upon th e person
who custom arily receiv es th e correspondence for th e
defendant at its principal office.
In case th e d om estic juridical e n tity is under
receivership or liquidation, service o f sum m ons shall
be m ade on th e receiver or liquidator, as th e case may
be.
746 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Should there be a refusal on th e part o f th e

persons above-m entioned to receive sum m ons despite
at lea st th ree (3) attem p ts on two (2) different dates,
service m ay be m ade electron ically, if allow ed by th e
court, as provided under S ection 6 o f th is R ule.” (11a)

Q: To whom sum m ons sh all be served in case of dom estic

ju rid ical e n tity ?
A: 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;
6) In-house counsel of the corporation wherever they
may be found; or
7) In their absence or unavailability, on their
secretaries.

In case of a domestic juridical entity, the service of

summons m ust be made upon the officer who is named in
the statute (i.e., the president, managing partner, general
manager, corporate secretary, treasurer, or in-house-
counsel), otherwise, the service is insufficient. (B.D. Longspan
Builders, Inc. vs. R.S. Ampeloquio Realty Development, Inc.,
G.R. No. 169919, September 11, 2009)
Q: In case o f d efault o f service o f sum m ons to th e above
persons, to whom it sh all be served?
A: 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.
 CHAPTER X 747
RULE 14: SUMMONS

Q: To whom sum m ons sh all be served in case of dom estic

ju rid ical e n tity u n d er receiv ersh ip o r liquidation?
A: 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.
Q: W hat is th e rule in case o f refusal on th e p a rt of th e
above-m entioned p erso n s?
A: 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.

13. D uty o f Counsel o f Record:

Sec. 13, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule service of summons by counsel. It states that:
“Sec. 13. D uty o f counsel o f record. — Where the
sum m ons is improperly served and a lawyer m akes
a special appearance on behalf o f th e defendant to,
am ong oth ers, question th e validity o f service of
sum m ons, th e cou n sel shall be deputized by th e court
to serve sum m ons on h is or her c lie n t.” (nj

COMMENTS:
Q: W hat is th e rule in case o f service of sum m ons by th e
law yer?
A: 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.
748 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

14. Service upon Foreign P rivate E n tity:

Sec. 14, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on service of summons upon foreign private juridical
entity. It states that:
“Sec. 14. Service upon foreign p riva te Juridical
en tities. — When th e defendant is a foreign private
juridical e n tity w hich has transacted or is doing
busin ess in th e Philippines, as defined by law, service
m ay be m ade on its resident agent designated in
accordance w ith law for th at purpose, or, if there be
no such agent, on th e governm ent official designated
by law to th at effect, or on any o f its officers, agents,
directors or tru stees w ithin th e Philippines.
If th e foreign private juridical e n tity is not
registered in th e Philippines, or has no resident
agent but has transacted or is doing busin ess in it, as
defined by law, such service m ay, w ith leave o f court,
be effected outside o f th e Philippines through any o f
th e following means:
(a) By personal service coursed through th e
appropriate court in th e foreign country w ith th e
assistan ce o f th e departm ent o f foreign affairs;
(b) By publication on ce in a newspaper o f general
circulation in th e country where th e defendant may
be found and by serving a copy o f th e sum m ons and
th e court order by registered m ail at th e last known
address o f th e defendant;
(c) By facsim ile;
(d) By electron ic m eans w ith th e prescribed
proof o f service; or
(e) By such other m eans as th e court, in its
discretion, m ay d irect.” (12a)
 CHAPTER X 749
RULE 14: SUMMONS

COMMENTS:
Q: To whom sum m on shall be served in case of foreign
jurid ical e n tity doing business in th e Philippines?
A: 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:
1) Its resident agent designated in accordance with
law for that purpose;
2) If there be no such agent, on the government official
designated by law to that effect; or
3) On any of its officers, agents, directors or trustees
within the Philippines.*1

Case Law:

With respect to foreign corporations, when a foreign

corporation has designated a person to receive summons in
its behalf pursuant to the Corporation Code, that designation
is exclusive and service of summons on any other person is
inefficacious. (H.B. Zachry Company International vs. Court of
Appeals, 232 SCRA 329)

Q: To whom sum m on shall be served in case of foreign

juridical e n tity n o t registered and no resident agent, but
doing business in th e Philippines?
A: 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:
1) By personal service coursed through the appropriate
court in the foreign country with the assistance of the
department of foreign affairs;
2) 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;
750 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3) By facsimile;
4) By electronic means with the prescribed proof of
service; or
5) By such other means as the court, in its discretion,
may direct.

“When the defendant is a foreign private juridical entity

which has transacted business in the Philippines, service
may be made on its resident agent designated in accordance
with law for that purpose; or if there is no such agent on
the government official designated bv law to that effect, or
on anv of its officers or agents within the Philippines, x x x
if the foreign private juridical entity is not registered in the
Philippines or has no resident agent, service may, by leave
of court be effected out of the Philippines through any of the
following means (1) By personal service coursed through the
appropriate court in the foreign country with the assistance
of the Department of Foreign Affairs; (2) 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; (3) by facsim ile or any
recognized electronic m eans that could generate proof of
service.
On this score, we find for the petitioners. Before it was
amended by A.M. No. 11-3-6-SC, Sec. 12 of Rule 14 of the
Rules of Court reads:
SEC. 12. Service upon foreign private Juridical entity. —
When foreign defendant is a foreign private juridical entity
which has transacted business in the Philippines, 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 or agents within the Philippines.
Elucidating on the above provision of the Rules of Court,
this Court declared in Pioneer International Ltd. vs. Ouadiz,
 CHAPTER X 751
RULE 14: SUMMONS

Jr., that when the defendant is a foreign juridical entity,

service of summons may be made upon:
1. Its resident agent designated in accordance with
law for that purpose;
2. The government official designated by law to receive
summons if the corporation does not have a resident agent;
or,
3. Any of the corporation’s officers or agents within
the Philippines. (Atiko Trans, Inc., and Cheng Lie Navigation
Co., Ltd. vs. Prudential Guarantee and Assurance, Inc., G.R.
No. 167545, August 17, 2011)
Q: W hat is th e effect o f failure to com ply correctly
w ith th e e-m ailing o f copies o f th e sum m ons and th e
publication?
A: The failure to strictly comply with the requirements of
e-mailing of copies of the summons and the order for its
publication is a fatal defect in the service of summons.

Case Law:

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. No. 159699, March 16, 2005)

15. Service upon Public Corporations:

Sec. 15, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule service of summons upon public corporations. It
states that:
“See. 15. Service upon pu blic corporations. —
When the defendant is th e Republic o f th e Philippines,
service m ay be effected on th e Solicitor General; in
case o f a province, c ity or m unicipality, or like public
corporations, service m ay be effected on its execu tive
head, or on su ch other officer or officers as th e law or
th e court m ay direct." (13a)
752 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: To whom sum m on shall be served in case of th e
Republic of th e Philippines?
A: When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General;

Case Law:

Where the defendant is the Republic of the Philippines,

service of summons must be made on the Solicitor General.
(Republic of the Philippines vs. Alfredo Domingo, G.R. No.
175299, September 14, 2011)

Q: To whom sum m on shall be served in case of th e

province, city or m unicipality or public corporations?
A: 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.*I

16. Service upon D efendant whose Id en tity or

I W hereabouts Unknown:___________________
Sec. 16, Rule 14 of th e 2019 A m endm ents to th e
1997 Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on service of summons upon defendant whose
identity or whereabouts are unknown. It states that:
MSec. 16. Service upon defendant whose id en tity
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, w ithin ninety (90) calendar days from the
com m encem ent o f th e action, service may, by leave
o f court, be effected upon him or her by publication in
a newspaper o f general circulation and in such places
and for such tim e as th e court m ay order.
Any order granting such leave shall specify a
reasonable tim e, which shall not be less than sixty
 CHAPTER X 753
RULE 14: SUMMONS

(60) calendar day* after n otice, w ithin which the

defendant m ust answer.” (14a)

COMMENTS:
Q: How will service o f sum m ons be effected in case of
unknow n defendant or h is w hereabout is unknow n?
A: 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.

Q: Is service of sum m ons by publication allowed in an

actio n in personam if th e defendant’s w hereabouts is
unknow n?
A: Yes, service of summons by publication in actions in
personam is allowed considering that the provision itself
allow this mode in “any action”.

Case Law:

Under Sec. 14, Rule 14 of the Rules of Court, service

of summons may be effected on a defendant by publication,
with leave of court, when his whereabouts are unknown and
cannot be ascertained by diligent inquiry. The Rules of Court
provides:
SEC. 14. 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 whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court,
be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court
may order.
754 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

In Santos, Jr. vs. PNOC Exploration Corporation, the Court

authorized resort to service of summons by publication even
in actions in personam, considering that the provision itself
allow this mode in any action, i.e., whether the action is in
personam, in rem, or quasi in rem. The ruling, notwithstanding,
there must be prior resort to service in person on the defendant
and substituted service, and proof that service by these
modes were ineffective before service by publication may be
allowed for defendants whose whereabouts are unknown,
considering that Sec. 14, Rule 14 of the Rules of Court
requires a diligent inquiry of the defendant’s whereabouts.
(Pablo Pua vs. Lourdes L. Deyto, Doing Business Under The
Name o f “JD Grains Center,” and Jennelita Deyto Ang A.K.A.
“Janet Ang, G.R. No. 173336, November 26, 2012)

Q: What is th e c o n ten t of th e O rder of th e court?

A: 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.

EE . E xtraterritorial^ Service: ^

Sec. 17, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on extraterritorial service of summons. It states
that:
“Sec. 17. E xtraterritorial service. — When the
defendant does not reside and is not found in the
Philippines, and the action affects the personal status
o f th e plaintiff or relates to, or th e subject o f which
is, property w ithin th e Philippines, in which the
defendant has or claim s a lien or in terest, actual or
contingent, or in which th e relief demanded con sists,
wholly or in part, in excluding th e defendant from any
interest therein, or th e property o f th e defendant has
been attached w ithin the Philippines, service may, by
leave o f court, be effected out o f th e Philippines by
personal service as under Section 6; or as provided for
in international conventions to which th e Philippines
 CHAPTER X 755
RULE 14: SUMMONS

Is a party; or by publication in a newspaper o f general

circulation in such places and for such tim e as th e
court may order, in w hich case a copy o f th e sum m ons
and order o f th e court shall be sen t by registered mail
to th e last known address o f th e defendant, or in any
other m anner th e court m ay deem sufficient. Any
order granting such leave shall specify a reasonable
tim e, w hich shall n ot be le s s than sixty (60) calendar
days after n otice, w ithin w hich th e defendant m ust
answer.” (15a)

COMMENTS:
Q: W hat are th e actio n s w hich can be subject of
ex traterrito rial service o f sum m ons in case of non­
resid en t d efen d an t?
A: When the defendant does not reside and is not found in
the Philippines, and
1) The action affects the personal status of the plaintiff
or relates to,
2) 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
3) The property of the defendant has been attached
within the Philippines,
Q: How will e x traterrito rial service o f sum m ons be m ade
in th e above cases?
A: Service may, by leave of court, be effected out of the
Philippines in the following manner, to wit:
1) Personal service as under Section 6;
2) As provided for in international conventions to
which the Philippines is a party; or3
3) By publication in a newspaper of general circulation
in such places and for such time as the court may order.
756 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: What is th e purpose of service o f sum m ons on a non­

resid en t defendant n o t found in th e Philippines?
A: It is a requirement of fair play that defendant be informed
of the pendency of the action against him and to defend
himself, and the possibility that the property belonging to
him or in which he has an interest may be subjected to a
judgment.

Case Law:

Service of summons on a non-resident defendant who

is not found in the country is required, not for purposes of
physically acquiring jurisdiction over his person but simply
in pursuance of the requirements of fair play, so that he may
be informed of the pendency of the action against him and
the possibility that the property in the Philippines belonging
to him or in which he has an interest may be subjected to a
judgment in favor of a resident, and that he may thereby be
accorded an opportunity to defend in the action, if he be so
minded. The only relief that may be granted in such an action
against such a non-resident defendant, who does not choose
to submit himself to the jurisdiction of the Philippine court,
is limited to the res. (Rosalino P. Acance, et al. vs. CA, G.R. No.
159699, March 16, 2005, citing Sahagun vs. Court of Appeals,
198 SCRA44 [1991])

Q: Can th e co u rt acquire ju risd ictio n in case of a non­

resid en t defendant and th e case is an action in p e r s o n a m ?
A: No. If the defendant does not reside and is not found
in the Philippines, the Philippine courts cannot try any case
against it because of the impossibility of acquiring jurisdiction
over its person.

|_ ^ a s e _ L a w jJ

Since the action involved in the case at bar is in

personam and since the defendant, petitioner Rothschild/
 CHAPTER X 757
RULE 14: SUMMONS

Investec, does not reside and is not found in the Philippines,

the Philippine courts cannot try any case against it because
of the impossibility of acquiring jurisdiction over its person
unless it voluntarily appears in court. (NM Rothschild and
Sons [Australia] Limited vs. Lepanto Consolidated Mining
Company, G.R. No. 175799, November 28, 2011)

Q: W hat is th e rule on com pliance w ith th e req u irem en ts

of service by p ub lication?
A: Strict compliance with the requirements of service by
publication, otherwise grave abuse may be committed.

It is the duty of the court to require the fullest compliance

with all the requirements of the statute permitting service
by publication. Where service is obtained by publication, the
entire proceeding should be closely scrutinized by the courts
and a strict compliance with every condition of law should be
exacted. Otherwise, great abuses may occur, and the rights of
persons and property may be made to depend upon the elastic
conscience of interested parties rather than the enlightened
judgment of the court or judge.” (Rosalino P. Acance, et al.
vs. CA, supra, citing Dulap vs. Court of Appeals, 42 SCRA 537
[1971])

Q: W hat is th e req u irem en t in case of ex traterrito rial

service o f sum m ons?
A: 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 deem
sufficient.
Q: W hat is th e c o n te n t o f th e O rder o f th e co u rt?
A: 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.
758 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Sample F orm No. 2; Motion for leave T o S erve Spumous By

publication S ervice (Sec. 17. R ule 14)

Republic of the Philippines

Regional Trial Court
National Capital Judicial Region
City of Manila,
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .________
For: Recovery of possession with Damages
MR. Y,
Defendant
x ----------------------------x

MOTION FOR LEAVE OF COURT TO SERVE

SUMMON8 BY PUBLICATION
COMES NOW, the plaintiff, through the undersigned
counsel and unto this Honorable Court, m ost respectfully
avers:
1. That on F e b ru a ry _, 2020, copy of the sum m ons
was served by the process server of this Honorable Court
to the defendant on his given address, b u t defendant is no
longer residing on his given address;
2. The considering th a t the w hereabouts of the
defendant is unknow n and this case affects the property of
the defendant, plaintiff m ost respectfully move with leave of
court to serve sum m ons by publication.
WHEREFORE, plaintiff prays th a t the sum m ons be
served by publication based on the above reasons.
Such other relief and rem edies as may be deemed ju s t
and equitable under the prem ises are likewise prayed for.
Manila, F e b ru ary __ , 2020.
 CHAPTER X 759
RULE 14: SUMMONS

TLLH LAW & ASSOCIATES

LAW OFFICE
Counsel for the Plaintiff
Roo, 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd. cor. Sta. Monica St.,
Erm ita, Manila

FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 8 9 3 2 9 8 1 6 /2-26-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142/4-18-19
Tel. No. 521-6137

NOTICE OF HEARING

TO: MR. Y
Defendant
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on February 12, 2020,
a t 2:00 p.m.

FERDINAND A. TAN
CC: MR. Y
#41 M aceda Street,
Sampaloc, Manila

EXPLANATION OF SERVICE

Copy of the Motion to Serve Sum m ons by Publication

was served to defendant by registered mail due to time and
distance constraints, and for lack of th e undersigned’s staff
who can serve the sam e in person.

18. R esidents T em porarily O ut o f th

Sec. 18, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
760 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the rules on service of summons to defendant temporarily out

of the Philippines. It states that:
“Sec. 18. R esidents tem porarily ou t o f the
Philippines. — When any action is com m enced
against a defendant who ordinarily resides w ithin th e
Philippines, but who is tem porarily out o f it, service
m ay, by leave o f court, be also effected out o f the
Philippines, as under th e preceding S ectio n .” (16a)

COMMENTS:
Q: How will th e sum m ons be served to a defendant
tem porarily o u t o f th e P hilippines?
A: 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.
Q: Can th e co u rt in an actio n in personam acquire
ju risd ictio n over th e perso n o f th e defendant who is
tem porarily o u t o f th e Philippines?
A: No, in an action in personam the defendant must be a
resident of the Philippines, otherwise it cannot be brought
because jurisdiction over his person is essential to make a
binding decision.

| Case Law:

If defendant cannot be served with summons because

he is temporarily abroad, but otherwise he is a Philippine
resident, service of summons may, by leave of court, be
effected out of the Philippines under Rule 14, Sec. 15. In
all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in personam
cannot be brought because jurisdiction over his person is
essential to make a binding decision. (Sps. Domingo M. Belen
and Dominga P. Belen, G.R. No. 175334, March 26, 2008)
 CHAPTER X 761
RULE 14: SUMMONS

19. Leave of Court:

Sec. 19, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on service by leave of court. It states that:
“Sec. 19. Leave o f co u rt — Any application to
th e court under th is Rule for leave to effect service in
any manner for which leave o f court is necessary shall
be made by m otion in writing, supported by affidavit
o f th e plaintiff or som e person on his behalf, settin g
forth th e grounds for th e application.” (17a)

COMMENTS:
Q: W hat are th e req u irem en ts in case of service w ith
leave o f co u rt?
A: 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:
1) Motion in writing;
2) Supported by affidavit of the plaintiff or some person
on his behalf; and
3) Setting forth the grounds for the application.

20. R eturn:

Sec. 20, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules in filing of return on the service of summons. It
states that:
“Sec. 2 0 . Return. — Within thirty (30) calendar
days from issuan ce o f sum m ons by th e clerk o f court
and receipt thereof, th e sheriff or process server, or
person authorized by th e court, shall com plete its
service. Within five (5) calendar days from service
o f sum m ons, th e server shall file w ith th e court and
serve a copy o f the return to th e p la in tiffs counsel,
762 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

personally, by registered m ail, or by electronic m eans

authorized by th e Rules.
Should substituted service have been effected,
th e return shall sta te th e following:
(1) The im possibility o f prompt personal service
w ithin a period o f thirty (30) calendar days from issue
and receipt o f sum m ons;
(2) The date and tim e o f th e three (3) attem pts
on at least (2) two different dates to cause personal
service and th e details o f th e inquiries m ade to locate
th e defendant residing thereat; and
(3) The nam e o f th e person at least eigh teen
(18) years o f age and o f sufficient discretion residing
thereat, nam e o f com p eten t person in charge of the
defendant’s office or regular place of b u sin ess, or
nam e o f th e officer o f th e hom eow ners’ association or
condom inium corporation or its c h ie f secu rity officer
in charge o f th e com m unity or building where the
defendant m ay be found.” (4a)

COMMENTS:
Q: W hat is th e du ty o f th e process server on service of
sum m ons?
A: 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.
Q: W hat is th e d u ty of th e process server after service of
sum m ons?
A: 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 plaintiffs counsel, personally, by registered
mail, or by electronic means authorized by the Rules.

Q: W hat are th e c o n te n ts o f th e re tu rn in case of

su b stitu te d service o f sum m ons?
A: Should substituted service have been effected, the return
shall state the following:
 CHAPTER X 763
RULE 14: SUMMONS

(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 be found.
Q: W hat are th e detailed req u isites for a valid su b stitu ted
service of sum m ons?
A: The detailed requisites for a valid substituted service of
summons, summed up as follows: 1) impossibility of prompt
personal service: 2) specific details in the return; 3) a person
of suitable age and discretion a competent person in charge,
who must have sufficient knowledge to understand the
obligation of the defendant in the summons.

Case Law:*1

In this case, the sheriff resorted to substituted service of

summons due to his failure to serve it personally. In Manotoc
vs. Court of Appeals, the Court detailed the requisites for a
valid substituted service of summons, summed up as follows:
(1) impossibility of prompt personal service — the party relying
on substituted service or the sheriff must show that the
defendant cannot be served promptly or there is impossibility
of prompt service; ( 2 ) specific details in the return — the
sheriff must describe in the Return of Summons the facts
and circumstances surrounding the attempted personal
service; (3) a person of suitable age and discretion — the
sheriff must determine if the person found in the alleged
dwelling or residence of defendant is of legal age, what the
recipient’s relationship with the defendant is, and whether
764 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

said person comprehends the significance of the receipt of

the summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said receipt of
summons, which matters must be clearly and specifically
described in the Return of Summons; and (4) a competent
person in charge, who must have sufficient knowledge to
understand the obligation of the defendant in the summons,
its importance, and the prejudicial effects arising from
inaction on the summons, x x x (Planters Development Bank
vs. Julie Chandumal, G.R. No. 195619, September 5, 2012)1

21. Proof Service:

Sec. 21, Rule 14 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on proof of service of summons. It states that:
“Sec. 21. Proof o f service. — The proof o f service
o f a sum m ons shall be made in writing by the server
and shall s e t forth the manner, place, and date o f
service; shall specify any papers which have been
served with th e process and th e name o f th e 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 sum m ons was served by electronic mail, a
printout of said e-m ail, with a copy o f th e sum m ons
as served, and the affidavit o f th e person mailing,
shall con stitu te as proof o f service.” (18a)

COMMENTS:
Q: W hat is th e rule on proof of service of sum m ons?
A: The proof of service of a summons shall be:
1) Made in writing by the server; and
2) It shall set forth the manner, place, and date of
service;
3) It shall specify any papers which have been served
with the process and the name of the person who received the
same; and
 CHAPTER X 765
RULE 14: SUMMONS

4) It shall be sworn to when made by a person other

than a sheriff or his or her deputy.
Q: W hat is th e proof of service of sum m ons by electronic
m ail?
A: If summons was served by electronic mail it can be
proved by:
1) A printout of said e-mail, with a copy of the summons
as served; and
2) The affidavit of the person mailing, shall constitute
as proof of service.

Sec. 22, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on proof of service of summons by publication. It
states that:
uSec. 22. Proof o f service by publication. — If
th e service has been made by publication, service
m ay be proved by th e affidavit o f th e publisher,
editor, business or advertising manager, to which
affidavit a copy o f th e publication shall he attached
and by an affidavit showing th e deposit o f a copy of
th e sum m ons and order for publication in th e post
office, postage prepaid, directed to th e defendant
by registered mail to h is or her last known address.”
(19a)

COMMENTS:
Q: How to prove service of sum m ons by publication?
A: If the service has been made by publication, service may
be proved by:
1) The affidavit of the publisher, editor, business
or advertising manager, to which affidavit a copy of the
publication shall be attached; and
766 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2) 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.*1

23. V oluntary A ppearance:

Sec. 23, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the defendant’s voluntary appearance. It states
that:
“Sec. 2 3 . Voluntary appearance. — The
defendant’s voluntary appearance in th e action shall
be equivalent to service o f sum m ons. The in clusion in
a m otion to dism iss o f other grounds aside from lack
o f jurisdiction over th e person o f th e defendant shall
be deem ed a voluntary appearance.” (20a)

COMMENTS:
Q: W hat is th e effect o f v o lu n tary appearance of th e
defendant:
A: The defendant’s voluntary appearance in the action shall
be:
1) Equivalent to service of summons;
2) 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.

a) In stan ces o f v o lu n tary appearance:

Q: Is v o lu ntary appearance w ith o u t objection a

subm ission to th e ju risd ic tio n o f th e co u rt?
A: An appearance in whatever form, without explicitly
objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over the person.
 CHAPTER X 767
RULE 14: SUMMONS

Case Law:

A voluntary appearance is a waiver of the necessity of

a formal notice. An appearance in whatever form, without
explicitly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court
over the person. While the formal method of entering an
appearance in a cause pending in the courts is to deliver
to the clerk a written direction ordering him to enter the
appearance of the person who subscribes it, an appearance
may be made by simply filing a formal motion, or plea or
answer. This formal method of appearance is not necessaiy.
He may appear without such formal appearance and thus
submit himself to the jurisdiction of the court. He may
appear by presenting a motion, for example, and unless by
such appearance he specifically objects to the jurisdiction of
the court, he thereby gives his assent to the jurisdiction of
the court over his person. When the appearance is by motion
objecting to the jurisdiction of the court over his person, it
m ust be for the sole and separate purpose of objecting to
the jurisdiction of the court. If his motion is for any other
purpose than to object to the jurisdiction of the court over
his person, he thereby submits himself to the jurisdiction
of the court. (Ofelia Herrera-Felix vs. Court o f Appeals, et al.,
G.R. No. 143736, August 11, 2004, citing Busuego vs. Court
o f Appeals, 151 SCRA 376 [1987], citing Flores vs. Zurbito, 37
Phil. 746 [1918])
Q: W hat is th e effect if d efen d an t file a M otion for
E xtension o f T im e?
A: Filing of a motion for additional time to file answer is
considered voluntary submission to the jurisdiction of the
court.

Case Law:

Courts acquire jurisdiction over the plaintiffs upon the

filing of the complaint. On the other hand, jurisdiction over
768 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the defendants in a civil case is acquired either through the

service of summons upon them or through their voluntary
appearance in court and their submission to its authority, as
provided in Section 20, Rule 14 of the Rules of Court.
We have, time and again, held that the filing of a motion
for additional time to file answer is considered voluntary
submission to the jurisdiction of the court. If the defendant
knowingly does an act inconsistent with the right to object
to the lack of personal jurisdiction as to him, like voluntarily
appearing in the action, he is deemed to have submitted
himself to the jurisdiction of the court. Seeking an affirmative
relief is inconsistent with the position that no voluntary
appearance had been made, and to ask for such relief, without
the proper objection, necessitates submission to the Court’s
jurisdiction. (Carson Realty and Management Corporation vs.
Red Robin Security Agency and Monina C. Santos, G.R. No.
225035, February 8, 2017)

Q: Will th e filing o f m o tio n to s e t aside order of default

and m o tio n to ad m it answ er ta n ta m o u n t to th e subm ission
to th e ju risd ic tio n of th e c o u rt?
A: Yes, parties asking an affirmative action or relief from
the court is voluntary considered as voluntary submission.

| Case Law ^Jj

Thus, it was ruled that the filing of motions to admit

answer, for additional time to file answer, for reconsideration
of a default judgment, and to lift order of default with motion
for reconsideration is considered voluntary submission to the
trial court’s jurisdiction. (Planters Development Bank vs. Julie
Chandumal, G.R. No. 19561905, September 2012)

b) In stan ces o f non-subm ission to th e ju risd ic tio n

o f th e court:
Q: Is special ap p earan ce to challenge ju risd ic tio n o f th e
c o u rt a v o lu n tary subm ission?
 CHAPTER X 769
RULE 14: SUMMONS

A: The defendant’s appearance to object to the jurisdiction

of the court over his person is not considered voluntary
submission.

Case Law:

When the defendant’s appearance is made precisely

to object to the jurisdiction of the court over his person, it
cannot be considered as appearance in court. (French Oil
Mill Machinery, Inc. vs. Court o f Appeals, G.R. No. 126477,
September 11, 1998 as cited in JAPRL Development Corp. vs.
Security Bank Corporation, G.R. No. 190107, June 6, 2011)

Q: Will th e appearance before th e co u rt challenging its

ju risd ic tio n due to invalid service of sum m ons a v o luntary
ap p earan ce?
A: No. Special appearance in court challenging the
jurisdiction of said court based on the ground of invalid
service of summons is not voluntary submission.

Case Law:

A party who makes a special appearance in court

challenging the jurisdiction of said court based on the
ground of invalid service of summons is not deemed to have
submitted himself to the jurisdiction of the court. (Allan C. Go
vs. Mortimer F. Cordero, G.R. No. 164703, May 4, 2010)

Q: Will service o f sum m ons coursed th ro u g h a co­

defen d an t ag en t a subm ission to th e ju risd ic tio n o f th e
c o u rt?
A: No, service of summons coursed through a co-defendant
agent not a submission to the jurisdiction of the court

Case Law:

Where service of summons upon the defendant principal

is coursed thru its co-defendant agent, and the latter
770 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

happens to be a domestic corporation, the rules on service

of summons upon a domestic private juridical entity m ust be
strictly complied with. Otherwise, the court cannot be said to
have acquired jurisdiction over the person of both defendants.
And insofar as the principal is concerned, such jurisdictional
flaw cannot be cured by the agent’s subsequent voluntary
appearance. (Atiko Trans, Inc. and Cheng Lie Navigation Co.,
Ltd. vs. Prudential Guarantee and Assurance, Inc., G.R. No.
167545, August 17, 2011)
 CH A PTER X I

RULE 15: MOTIONS

jj^ l^ M o tio n JP e fln e d ^ 2006):

Sec. 1, Rule 15 o f th e 2 0 1 9 A m endm ents to th e

1997 Rules on Civil Procedure (A.M. No. 19-10-20) defines
motion. It states that:
“Sec. 1. Motion defined. — A m otion is an
application for relief other than by a pleading.” (1)

COMMENTS:
Q: W hat is a m otio n ?
A: A motion is an application for relief other than by a
pleading.
Q: Is a m otion a pleading (Bar E xam ination 2006)?
A: No, by express definition of Sec. 1, Rule 15 that, a motion
is an application for relief other than by a pleading.
Q: Is a le tte r a m o tio n ?
A: Yes, under the provision of Sec. 3(e) of the Revised 2016
Rules on Small Claims Cases a motion is defined as — It is a
verbal or written request asking for an affirmative action from
the court, which includes informal request or letter.

o f M otion:

Q: W hat are th e k in d s o f m o tio n u n d er th e R ules?

A: The kinds of motion under the rules are as follows, to
wit:

771
772 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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.
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 to give an opportunity to oppose.
4) Non-litigated motion — It is a motion where notice
to the adverse party and hearing is not required.
5) Special motion — It is a motion which is addressed
to the sound discretion of the court.
6) Oral motion — It is a motion which is made in open
court.
7) Written motion — It is a motion which is formally
placed in writing.

2. M otion M ust be in Writing:

Sec. 2, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the requirements of motion. It states that:
“Sec. 2. Motions m u st be in writing. — All
m otions shall be in w riting excep t th ose made in open
court or in th e course o f a hearing or trial.
A m otion made in open court or in th e course
o f a hearing or trial should im m ediately be resolved
in open court, after th e adverse party is given th e
opportunity to argue h is or her opposition thereto.
When a m otion is based on facts not appearing on
record, th e court m ay hear th e m atter on affidavits or
d ep osition s presented by th e resp ective parties, but
th e court m ay direct th at th e m atter be heard wholly
or partly on oral testim on y or d ep osition s.” (2a)
 CHAPTER XI 773
RULE 15: MOTIONS

COMMENTS:
Q: W hat is th e req u irem en t o f a m o tion?
A: All motions shall be in writing except those made in open
court or in the course of a hearing or trial.

Q: W hat is th e rule in case o f an oral m otion?

A: 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.
Q: W hat is th e rule in case a m o tio n is based on facts
n o t appearing on record?
A: 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
that the matter be heard wholly or partly on oral testimony or
depositions.

3. C o n ten ts o f M otion:

Sec. 3, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the contents of a motion. It states that:
MSec. 3. Contents. — A m otion shall sta te th e
relief sought to be obtained and th e grounds upon
w hich it is based, and if required by th e se Rules or
n ecessary to prove facts alleged therein, shall be
accom panied by supporting affidavits and other
papers.” (3)

COMMENTS:
Q: W hat are th e c o n te n ts of a m o tio n ?
A: A motion shall state the following, to wit:
1) The relief sought to be obtained;
2) The grounds upon which it is based; and
774 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3) If required by these Rules or necessary to prove

facts alleged therein, shall be accompanied by supporting
affidavits and other papers.

4. Non-litigious Motion:

Sec. 4, Rule IS of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) p ro v id e s for
the rules on non-litigious motions. It states that:
"Sec. 4. Non-litigious motions. — M otions which
th e court may act upon w ithout prejudicing th e rights
o f adverse parties are non-litigious m otions. These
m otions include:
a) M otion for th e issuan ce o f an alias sum m ons;
b) M otion for exten sion to file answer;
c) M otion for postponem ent;
d) M otion for th e Issuance o f a writ of
execution;
e) M otion for th e issuan ce o f an alias writ o f
execution;
f) M otion for th e issuan ce o f a writ of
possession;
g) M otion for th e issuan ce o f an order directing
th e sheriff to execu te th e final certificate o f sale; and
h) Other sim ilar m otions.
These m otions shall not be se t for hearing and
shall be resolved by th e court w ithin five (5) calendar
days from receipt thereof." (n)

COMMENTS:
Q: W hat is a non-litigious m otion?
A: M otions w h ic h th e c o u rt m a y a c t u p o n w ith o u t p re ju d ic in g
th e rig h ts of a d v e rse p a rtie s a re n o n -litig io u s m o tio n s.
 CHAPTER XI 775
RULE 15: MOTIONS

Q: W hat are th e non-litigious m otions u n d er th e

am ended ru les?
A: The non-litigious motions under the amended rules shall
include:
1) Motion for the issuance of an alias summons;
2) Motion for extension to file answer;
3) Motion for postponement;
4) Motion for the issuance of a writ of execution;
5) Motion for the issuance of an alias writ of execution;
6) Motion for the issuance of a writ of possession;
7) Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
8) Other similar motions.

5. Litigious M otions: *1

Sec. 5, Rule 15 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on litigious motions. It states that:
"Sec. 5. Litigious m otions. — (a) Litigious
m otion s include:
1) M otion for bill o f particulars;
2) M otion to dism iss;
3) M otion for new trial;
4) M otion for reconsideration;
5) M otion for execu tion pending appeal;
6) M otion to am end after a responsive
pleading has been filed;
7) M otion to can cel statutory lien;
8) M otion for an order to break in or for a
writ o f dem olition;
776 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

9) M otion for intervention;

10) M otion for judgm ent on th e pleadings;
11) M otion for sum m ary judgm ent;
12) Demurrer to evidence;
13) M otion to declare defendant in default;
and
14) Other sim ilar m otions.
(b) All m otions shall be served by personal
service, accredited private courier or registered m ail,
or electron ic m eans so as to ensure their receipt by
th e other party.
(c) The opposing party shall file h is or her
op position to a litigiou s m otion w ithin five (5) calendar
days from receipt thereof. No other subm issions shall
be considered by th e court in th e resolution o f th e
m otion.
The m otion shall be resolved by th e court w ithin
fifteen (15) calendar days from its receipt o f th e
opposition th ereto, or upon expiration o f th e period
to file such op p osition .” (n)

COMMENTS:
Q: W hat are th e litigious m o tio n s u n d er th e am ended
ru les?
A: Litigious motions under the amended rules 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;
 CHAPTER XI 777
RULE 15: MOTIONS

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
14) Other similar motions.

Q: W hat is th e req u irem en t in filing litigious m o tio n s?

A: 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.

Q: W hat is th e rem edy o f th e opposing p arty ?

A: 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.

Q: When to resolve th e litigious m o tion?

A: The motion shall be resolved by the court:
1) Within fifteen (15) calendar days from its receipt of
the opposition thereto; or
2) Upon expiration of the period to file such opposition.

E N otice o f H earing on Litigious M otions

D iscretionary:

Sec. 6, Rule 15 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the notice of hearing on litigious motions. It states
that:
"Sec. 6. Notice o f hearing on litigiou s motions;
discretion ary. — The court m ay, in th e exercise o f its
d iscretion, and if deem ed n ecessary for its resolution,
call a hearing on th e m otion. The n otice o f hearing
shall be addressed to all parties concerned, and shall
sp ecify th e tim e and date o f th e hearing.” (5a)
778 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hen can a hearin g on th e m o tio n be co n d u cted ?
A: The court may, in the exercise of its discretion, and if
deemed necessary for its resolution, call a hearing on the
motion.

Q: To whom th e n o tice o f hearin g be addressed?

A: T h e n o tic e o f h e a rin g s h a ll b e a d d r e s s e d to a ll p a rtie s
c o n c e rn e d , a n d s h a ll specify th e tim e a n d d a te o f th e h e a rin g .

Case Law:

In Cabrera v. Ng, we held:

The general rule is that the three-day notice
requirement in motions under Sections 4 and 5 of the
Rules of Court is mandatory. It is an integral component
of procedural due process. “The purpose of the three-
day notice requirement, which was established not for
the benefit of the movant but rather for the adverse
party, is to avoid surprises upon the latter and to grant
it sufficient time to study the motion and to enable it to
meet the arguments interposed therein.”
X X X X.

Nevertheless, the three-day notice requirement is not a

hard and fast rule. When the adverse party had been afforded
the opportunity to be heard, and has been indeed heard
through the pleadings filed in opposition to the motion, the
purpose behind the three-day notice requirement is deemed
realized. In such case, the requirements of procedural due
process are substantially complied with. (People o f the
Philippines vs. Hon. Sandiganbayan {5th Division], Reynaldo
O. Parojinog, Sr., and Nova Princess E. Parojinog Echavez, G.R.
No. 233063, February 11, 2019)
 CHAPTER XI 779
RULE 15: MOTIONS

Q: W hat is th e effect if th e m o tio n does n o t c o n tain a

notice o f h earin g ?
A: It shall be denied if the motion is unaccompanied by a
notice of hearing and shall be considered as a piece of paper
unworthy of judicial cognizance.

Case Law:

In New Japan Motors, Inc. vs. Perucho, the Court dismissed

the motion for reconsideration that was unaccompanied by
a notice of hearing as a piece of paper unworthy of judicial
cognizance:
“Under Sections 4 and 5 of Rule 15 of the Rules of
Court, x x x a motion is required to be accompanied by a
notice of hearing which must be served by the applicant
on all parties concerned at least three (3) days before the
hearing thereof. Section 6 of the same rule commands
that ‘(n)o motion shall be acted upon by the Court,
without proof of service of the notice thereof x x x.’ It
is therefore patent that the motion for reconsideration
in question is fatally defective for it did not contain any
notice of hearing. We have already consistently held in
a number of cases that the requirements of Sections 4,
5 and 6 of Rule 15 of the Rules of Court are mandatory
and that failure to comply with the same is fatal to
movant’s cause.” (Ethel Acampado, et al. vs. Sps. Lourdes
R. Cosmilla, et al. G.R. No. 198531, September 28, 2015)

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on M a rc h _, 2020, at
2 :0 0 p .m .
HECTOR A. YULO
780 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
4-D, 4 th Floor O sm ena Bldg.,
1991 Mabini St., Malate Manila
Registry R eturn Card:

EXPLANATION OF SERVICE
Copy of the Motion to Dismiss was served to Plaintiffs
counsel by registered mail due to tim e and distance
constraints, and for lack of the undersigned’s staff who can
serve the sam e in person.
HECTOR A. YULO

7. Proof o f Service Necessary:

Sec. 7, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on proof of service of the motion. It states that:
“Sec. 7. Proof o f service necessary. — No w ritten
m otion shall be acted upon by th e court w ithout proof
o f service thereof, pursuant to S ection 5(b) hereof.”
(6a)

COMMENTS:
Q: W hat is th e req u irem en t in case of w ritte n m otion?
A: No written motion shall be acted upon by the court
without proof of service thereof, pursuant to Section 5(b)
hereof.
Q: W hat is th e n atu re o f th e req u irem en t of proof of
service in m o tio n ?
A: Proof of service in motion is a mandatory requirement.
 CHAPTER XI 781
RULE 15: MOTIONS

Case Law:

There is no question that petitioner herein was remiss

in complying with the foregoing Rule. In Cruz vs. Court of
Appeals, we ruled that with respect to motions, proof of
service is a mandatory requirement. We find no cogent reason
why this dictum should not apply and with more reason to a
petition for certiorari, in view of Sec. 3, Rule 46 which requires
that the petition shall be filed “together with proof of service
thereof.” We agree with the Court of Appeals that the lack of
proof of service is a fatal defect. The utter disregard of the
Rule cannot be justified by harking to substantial justice and
the policy of liberal construction of the Rules. Technical rules
of procedure are not meant to frustrate the ends of justice.
Rather, they serve to effect the proper and orderly disposition
of cases and thus effectively prevent the clogging of court
dockets. (Emphasis in the original)
Indeed, while an affidavit of service is required merely
as proof that service has been made on the other party, it
is nonetheless essential to due process and the orderly
administration of justice. (Salvador O. Mojar, Edgar B. Begonia,
Heirs of the Late Jose M. Cortez, Restituto Gaddi, VirgiUo
M. Monana, Freddie Ranees, and Edson D. Tomas vs. Agro
Commercial Security Service Agency, Inc., et al, G.R. No. 187188,
June 27, 2012)
Q: W hat are th e effects of failure to comply w ith Secs. 5
and 6 o f Rule 15?
A: Failure to comply with the requirements mandated by
Secs. 5 and 6 of Rule 15 has the following effects:
1) It is considered as a mere worthless piece of paper;
2) The clerk of court has no right to receive;
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;
782 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 prescriptive period to
appeal or file pleadings.

Case Law:
Elementary is the rule that every motion must contain
the mandatory requirements of notice and hearing and
that there must be proof of service thereof. The Court has
consistently held that a motion that fails to comply with the
above requirements is considered a worthless piece of paper
which should not be acted upon. The rule, however, is not
absolute. There are motions that can be acted upon by the
court ex parte if these would not cause prejudice to the other
party. They are not strictly covered by the rigid requirement
of the rules on notice and hearing of motions. (Douglas F.
Anama vs. Philippine Savings Bank, G.R. No. 187021, January
25, 2012)

Sec. 8, Rule 15 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on motion day. It states that:
“Sec. 8. Motion day. — Except for m otions
requiring im m ediate action, where th e court decides
to conduct hearing on a litigious m otion, th e sam e
shall be se t on a Friday.” (7a)

COMMENTS:
Q: When is a m otion day?
A: 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.
 CHAPTER XI 783
RULE 15: MOTIONS

Om nibus M otion (Bar Exam inations 2016 and

E 2010 ):

Sec. 23, Rule 14 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the defendant’s voluntary appearance. It states
that:
“Sec. 9. Omnibus motion. — Subject to th e
provisions o f S ection 1 o f Rule 9 , a m otion attacking a
pleading, order, judgm ent, or proceeding shall Include
all objections then available, and all objections not so
included shall be deem ed waived." (8a)
COMMENTS:
Q: W hat is an om nibus m o tio n ?
A: 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.

Q: W hat is th e purpose o f th e "om nibus m otion rule”?

A: The purpose of this rule is to obviate multiplicity of
motions and to discourage dilatory motions and pleadings.

Case Law:

Under the omnibus motion rule, a motion attacking

a pleading, order, judgment, or proceeding shall include
all objections then available. The purpose of this rule is to
obviate multiplicity of motions and to discourage dilatory
motions and pleadings. Party litigants should not be allowed
to reiterate identical motions, speculating on the possible
change of opinion of the courts or of the judges thereof.
(Tung Ho Steel Enterprises Corporation vs. Ting Guan Trading
Corporation, G.R. No. 182153, April 7, 2014)
784 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e exceptions to th e om nibus m otion rule.

A: Lack of jurisdiction, litis pendentia, barred by prior
judgment, and prescription. (Sec. 1, Rule 9)

Sec. 8, Rule 15 o f th e Rules of Court defines an

omnibus motion as a motion attacking a pleading, judgment
or proceeding. A motion to dismiss is an omnibus motion
because it attacks a pleading, that is, the complaint. For this
reason, a motion to dismiss, like any other omnibus motion,
must raise and include all objections available at the time of
the filing of the motion because under Sec. 8: “all objections
not so included shall be deemed waived.”
As inferred from the provision, only the following defenses
under Sec. 1, Rule 9, are exempted from its application:
a) Lack of jurisdiction over the subject matter;
b) There is another action pending between the same
parties for the same cause (litis pendentia);
c) The action is barred by prior judgment (res judicata);
and
d) The action is barred by the statute of limitations or
prescription. (League o f Cities of the Philippines [LCP], et al.
vs. Commission on Elections, et al, G.R. No. 176951, April 12,
2011)

Q: W hat are th e con crete exam ples of an om nibus

m otion?
A: An example of an omnibus motions under the rules are
as follows, to wit:
1) Motion to dismiss (Rule 16);
2) Motion for new trial (Rule 37);
3) Motion to quash complaint or information (Rule
117);
 CHAPTER XI 785
RULE 15: MOTIONS

4) Motion to quash warrant of arrest (Rule 113);

5) Motion to quash search warrant (Sec. 14, Rule
126)I

I 10. BJotio n ^o rL eav e:~

Sec. 10, Rule 15 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on motion for leave to file pleading or motion. It states
that:
wSec. 10. Motion fo r leave. — A m otion for leave
to file a pleading or m otion shall be accom panied by
th e pleading or m otion sought to be adm itted .” (9)

COMMENTS:
Q: W hat is th e req u irem en t in case o f a m otion for leave
to file pleading or m otion?
A: A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted.

| ll". Form: jj
Sec. 11, Rule 15 o f th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule applicability of the rules on pleadings in case of a
motion. It states that:
“Sec. 11. Form. — The Rules applicable to
pleadings shall apply to w ritten m otions so far as
concern s caption, designation, signature, and other
m atters o f form .” (10)

COMMENTS:
Q: Will th e rules on pleadings be applicable to m otion?
A: Yes, as mandated by the above-cited rule, the Rules
applicable to pleadings shall apply to written motions so
far as concerns caption, designation, signature, and other
matters of form.
786 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

12. Prohibited Motions/Motion to Dismiss:

Sec. 12, Rule 15 of the 2019 Amendments to the 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on prohibited motions. It states that:
HSec. 12. Prohibited motions. — The following
m otions shall not be allowed:
a) Motion to dism iss excep t on th e foUowing
grounds:
1) That th e court has no jurisdiction over
th e subject m atter o f the claim;
2) That there is another action pending
betw een the sam e parties for th e sam e cause;
and
3) That th e cause o f action is barred by a
prior judgm ent or by th e statu te o f lim itations;
b) M otion to hear affirmative defenses;
c) M otion for reconsideration o f th e court’s
action on th e affirmative defenses;
d) Motion to suspend proceedings w ithout a
temporary restraining order or injunction issued by a
higher court;
e) M otion for extension o f tim e to file
pleadings, affidavits or any other papers, except a
m otion for extension to file an answer as provided by
Section 11, Rule 11; and
f) M otion for postponem ent intended for
delay, except if it is based on acts o f God, force
majeure or physical inability o f th e w itness to appear
and testify. If the m otion is granted based on such
excep tions, th e m oving party shall be warned that the
presentation o f its evidence m ust still be term inated
on th e dates previously agreed upon.
A m otion for postponem ent, w hether written
or oral, shall, at all tim es, be accom panied by the
original official receipt from th e office o f the clerk o f
court evidencing paym ent o f th e postponem ent fee
under Section 21(b), Rule 141, to be subm itted either
 CHAPTER XI 787
RULE 15: MOTIONS

at th e tim e o f th e filing o f said m otion or not later

than th e n ext hearing date. The clerk o f court shall
n ot accep t the m otion u n less accom panied by th e
original receip t.” (n)

COMMENTS:
Q: What are th e prohibited m otions under th e amended
rules?
A: 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 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.

Q: What Is “H y p o th e tic a l Admission Rule” or

“Assumption of Truth Rule”
A: When a motion to dismiss is filed, the material allegations
of the complaint are deemed to be hypothetically admitted.
This hypothetical admission, extends not only from the
relevant and material facts well pleaded in the complaint,
788 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

but also to inferences that may be fairly deduced from them.

(The Municipality o f Hagonoy, Bulacan, et at vs. Hon. Simeon
Dumdum, Jr., G.R. No. 168289, March 22, 2010)

a) Motion to Dismiss on th e ground of lack of jurisdiction

over the subject m atter (Bar Examination 2015 and
2014):________________ ________________________

Q: What is jurisdiction over the subject m atter?

A: The Court wrote in A llie d D om ecq P h ilip p in e s , In c.
vs. Villon:
“Jurisdiction over the subject m atter is the power to
hear and determine the general class to which the proceedings
in question belong. Jurisdiction over the subject matter is
conferred by law and not by the consent or acquiescence of
any or all of the parties or by erroneous belief of the court
that it exists. Basic is the rule that jurisdiction over the
subject matter is determined by the cause or causes of action
as alleged in the complaint.” (Danilo S. Ursua vs. Republic of
the Philippines, G.R. No. 178193)

Q: How can jurisdiction over the subject m atter

determ ined?
A: Jurisdiction over the subject matter is determined by the
allegations in the complaint.*2

Case Law:

Jurisdiction over the subject matter is determined by

the allegations of the complaint. For the PARAD and DARAB
to acquire jurisdiction over the case, there must be a prima
facie showing that there is a tenurial arrangement or tenancy
relationship between the parties. The essential requisites of
a tenancy relationship are key jurisdictional allegations that
must appear on the face of the complaint. These essential
requisites are: (1) the parties are the landowner and the tenant;
(2) the subject is agricultural land; (3) there is consent; (4)
the purpose is agricultural production; (5) there is personal
cultivation; and (6) there is sharing of harvests.
 CHAPTER XI 789
RULE 15: MOTIONS

XXX.
The jurisdiction conferred to the DARAB is limited to
agrarian disputes, which is subject to the precondition that
there exist tenancy relations between the parties. Thus, in the
absence of a tenancy relationship between Union Bank and
private respondents, the PARAD/DARAB has no jurisdiction
over the petitions for cancellation of the CLOAs. Union Bank’s
postulate that there can be no shared jurisdiction is partially
correct; however, the jurisdiction in this case properly
pertains to the DAR, to the exclusion of the DARAB. (Union
Bank o f the Philippines vs. Regional Agrarian Reform Officer,
G.R. No. 200369, March 1, 2017)
Q: When to raise the issue of lack of jurisdiction over
th e subject m atter?
A: Lack of jurisdiction over the subject matter can be raised
at anytime even for the first time on appeal, except when it is
barred by laches.

Case Law:
While it is well-settled that lack of jurisdiction on the
subject matter can be raised at any time and is not lost
by estoppel by laches, the present case is an exception. To
compel petitioners to re-file and relitigate their claims before
the Nasugbu RTC when the parties had already been given
the opportunity to present their respective evidence in a full­
blown trial before the Balayan RTC which had, in fact, decided
petitioners’ complaint (about two years before the appellate
court rendered the assailed decision) would be an exercise in
futility and would unjustly burden petitioners. (Atty. Restituto
G. Cudiamat vs. Batangas Savings and Loan Bank, Inc., G.R.
No. 182403, March 9, 2010)
Q: Is lack of jurisdiction over th e subject m atter a ground
for a m otion to dismiss under th e Rules on Summary
Procedure?
A: Yes, by way of exception, under Sec. 19 of the Rules on
Summary Procedure a motion to dismiss on the ground of
lack of jurisdiction over the subject matter is allowed.
790 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Procedural Basis:

Sec. 19(a) of the Rules on Summary Procedure

provides for the prohibition on the filing of a motion to
dismiss. It states that:
“Sec. 19. Prohibited p lea d in g s and motions. —
The following pleadings, m otions, or p etition s shall
not be allowed in the cases covered by th is Rule:
a) M otion to dism iss th e com plaint or to quash
th e com plaint or inform ation except on th e ground of
lack o f jurisdiction over th e subject m atter, or failure
to com ply with the preceding sectio n .”

b) Motion to Dismiss on the ground of litis pendentia

Q: What is litis pendentia or MAuter action pendant”?

A: Litis pendentia is a Latin term, which literally means “a
pending suit” and is variously referred to in some decisions
as lis pendens and outer 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. It is based on the policy against multiplicity of
suits. (Goodland Company, Inc. vs. Asia United Bank, Abraham
Co, Atty. Joel T. Pelicano and The Register of Deeds of Makati
City, G.R. No. 195561, March 14, 2012)
Q: Is litis pendentia a ground for the dismissal of the
action?
A: Yes, litis pendentia is a ground for dismissal of the action
since judgment in one case results to res judicata to another.

As a ground for the dismissal of a civil action, litis

pendentia refers to a 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. Litis
 CHAPTER XI 791
RULE 15: MOTIONS

pendentia exists when the following requisites are present:

identity of the parties in the two actions; substantial identity
in the causes of action and in the reliefs sought by the parties;
and the identity between the two actions should be such that
any judgment that may be rendered in one case, regardless of
which party is successful, would amount to res judicata in the
other. (George Leonard S. Umale vs. Canoga Park Development
Corporation, G.R. No. 167246, July 20, 2011)

Q: What are th e requisites of litis pendentia?

A: The requisites for litis pendetia are: identity of parties
or representing the same interest, identity of rights asserted
and reliefs prayed for, and identity in the two cases such that
judgment in one would result to res judicata.*1

L a w T jj
Litis pendentia is Latin for “a pending suit.” It exists
when “another action is pending between the same parties
for the same cause of action x x x.” The subsequent action is
“unnecessary and vexatious” and is instituted to “harass the
respondent [in the subsequent action].”
The requisites of litis pendentia are:
(1) Identity of parties or at least such as represent the
same interest in both actions; (2) Identity of rights asserted
and reliefs prayed for, the reliefs being founded on the same
facts; and (3) The identity in the two cases should be such that
the judgment that may be rendered in one would, regardless
of which party is successful, amount to res judicata in the
other.
All of the requisites must be present. Absent one
requisite, there is no litis pendentia. (Lui Enterprises, Inc.
vs. Zuellig Pharma Corporation and the Philippine Bank of
Communications, G.R. No. 193494, March 7, 2014)

Q: Is litis pendentia applicable in intervention?

A: Yes, litis pendentia is applicable as long as it is sufficient
that there is identity of interests represented.
792 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

As to the presence of intervenors, litis pendencia does not

require a literal identity of parties. It is sufficient that there is
identity of interests represented. (St. Catherine Realty Corp.
vs. Ferdinand Y. Pineda, G.R. No. 171525, July 23, 2010)

c) Motion to Dismiss on the ground of barred by

prior judgment:____________________________
Q: What is th e basis of the doctrine of res judicata/
barred by prior judgm ent?
A: 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.

Case Law:
Under the doctrine of res judicata, therefore, 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 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. (Catalina Balais-Mabanag
vs. The Register of Deeds of Quezon City, G.R. No. 153142, March
29, 2010)

Q: What are the requisites of res ju dicata/ barred by

prior judgm ent ?
A: The requisites are: that there must be judgment rendered
by a court of competent jurisdiction which is based on the
merits, and identity of parties and cause of action between
the two cases.
 CHAPTER XI 793
RULE 15: MOTIONS

Case Law:

For res judicata to serve as an absolute bar to a

subsequent action, the following requisites must concur:
a) There must be a final judgment or order;
b) The court rendering it must have jurisdiction over
the subject matter and the parties;
c) It must be a judgment or order on the merits; and
d) There must be, between the two cases, identity of
parties, subject matter, and cause of action. (Joanie Surposa
Uy vs. Jose Ngo Chua, G.R. No. 183965, September 18, 2009;
Spouses Morris Carpo and Socorro Carpo vs. Ayala Land,
Incorporated, G.R. No. 166577, February 3, 2010)

Q: Distinctions between litis pendentia and res judicata?

Litis Pendentia
a) In litis pendentia, both
cases have identical
parties, subject m atter
and cause of action
which are still pending;
b) In litis pendentia, the
motion to dism iss can
be filed in either of the
two (2) suits pending.
Res Judicata
a) In res judicata, one of
the case has already
been decided with
finality on the m erits
b) In res judicata, the first
case which was decided
bars the filing of a second
case and the motion to
dism iss can be filed in
the subsequent case.

d) Motion to Dismiss on the ground of barred by th e I

C 8 tatu te of Limitation:

Q: What is th e effect if th e action is barred by

||

prescription?
A: When the action is barred by statute of limitations the
court shall dismiss the action/claim.
794 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Prescription of action is interrupted in the following

instances, to wit:
a) When the action is filed in court;
b) When there is an extra-judicial demand;
c) When there is a written acknowledgment of the debt
by the debtor.
When it appears from the pleadings or the evidence
on record that the action is already barred by the statute
of limitations, the court shall dismiss the claim. (Philippine
National Bank vs. Merelo Aznar, et al., G.R. No. 171805, Mau
30,2011)
Q: What is the effect of the filing of complaint in court
as regards prescription?
A: The filing of the complaint in court tolls the running of
period prescription of action.

Substantive Basis:
Art. 1155 of the New Civil Code provides for the
interruption of the period of action before the court. It states
that:
“Art. 1155. The prescription o f actions is
interrupted when th ey are filed before th e court,
when there is a written extrajudicial demand
by th e creditors, and when there is any written
acknowledgm ent o f th e debt by th e debtor.”

S ample F orm No. 1: Motion To Dismiss (Ssc. 1. R ule 16)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ___
 CHAPTER XI 795
RULE 15: MOTIONS

MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendants,
x --------------------------- x
MOTION TO DI8MI88
COMES NOW, the defendant, through the undersigned
counsel and unto this Honorable Court, m ost respectfully
move for the dism issal of the complaint on the following
grounds, and avers:
1. That the court has no jurisdiction over the subject
m atter of the action;
2. There is another action pending between the sam e
parties for the sam e cause of action, namely (state title of
the other case, its num ber, and the Court before which it is
pending); a n d /o r
3. The cause of action is barred by prior judgm ent, the
sam e cause of action having been finally decided between
the same parties in Civil Case N o .________________ of the
Regional Trial Court o f ______________ entitled (title of
case); a n d /o r
4. The cause of action is barred by statute of lim itations.

ARGUMENT
(State factual grounds and argum ents together with the
citation of authorities.)
WHEREFORE, defendant prays th a t the com plaint be
dism issed, with costs against plaintiff.
Such other relief and rem edies as may be deemed ju st
and equitable under the prem ises are likewise prayed for.
Manila, F e b ru ary __ , 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
796 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

By:
HECTOR A. YULO
IBP NO. Lifetime 510283/2-5-05/M la.
PTR NO. 3647982/ 1-22-20/M la.
MCLE Compliance No. VI 4487/1-8-18
Roll No. 38599
Tel. No. 927-9278

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on ______________,
2012, a t 2:00 p.m.
HECTOR A. YULO
CC: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., com er Sta. Monica St.,
Ermita, Manila

EXPLANATION OF 8ERVICE

Copy of the Motion to Dismiss was served to Plaintiffs

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.
HECTOR A. YULO

e) Rule on Motion to Dismiss in an action for

Interpleader (Rule 62):__________________
Q: Can a claim ant file a motion to dismiss a complaint
for Interpleader?
A: Yes, as prescribed under Sec. 4, Rule 62, that within the
time for filing an answer, each claimant may file a motion
 CHAPTER XI 797
RULE 15: MOTIONS

to dismiss on the ground of impropriety of the interpleader

action or on other appropriate grounds specified in Rule 16.

P rocedural Basis:

Sec. 4, Rule 62 of th e Rules o f th e Civil Procedures

provides for the remedy of motion to dismiss and the grounds
for the dismissal of the action. It states that:
“Sec. 4 . Motion to dism iss. — W ithin th e tim e
for filing an answer, each claim ant m ay file a m otion
to dism iss on th e ground o f im propriety o f th e
interpleader action or on other appropriate grounds
sp ecified in Rule 16. The period to file th e answer
shall be tolled and i f th e m otion is denied, th e m ovant
m ay file h is answer w ithin th e rem aining period, but
w hich shall n ot be less than five (5) days in any even t,
reckoned from n otice o f denial.”

Q: W hat is th e effect o f th e g ran tin g of th e m otion to

dism iss?
A: 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.

f) Rule on M otion to D ism iss u n d er th e Rules

on Sum m ary Procedure:___________________

Q: Is m otion to dism iss allowed in sum m ary proceedings

C ases?
A: As a general rule motion to dismiss is one of the prohibited
motions under Sec. 19(a) of the Rules on Summary Procedure,
except lack of jurisdiction over the subject matter, or failure
to comply with Sec. 18 on referral to the lupon.

P rocedural Basis:

Sec. 19(a) o f th e Rules on Sum m ary Procedure,

provides that no motion to dismiss can be filed before the
798 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

court except lack of jurisdiction and non-referral of the case

before the barangay. It states that:
“Sec. 19. Prohibited Pleadings an d motions. —
The following pleadings, m otion s, or p etition s shall
not be allowed in th e c a ses covered by th is Rule:
(a) M otion to dism iss th e com plaint or to
quash th e com plaint or inform ation excep t lack of
jurisdiction over th e subject m atter, or failure to
com ply with th e preceding se c tio n .”

g) M otion to D ism iss u n d er th e 2016 Rules on Sm all

Claim s Cases (A.M. No. 08-8-7-SC):

Q: Is m otion to dism iss allowed in sm all claim s

cases?
A: No, motion to dismiss is one of the prohibited motions
under the 2016 Revised Rules on Small Claims Cases.

P rocedural Basis:

Sec. 14(a) o f th e 2016 Revised Rules on Sm all Claim s

Cases (A.M. No. 08-8-7, effective October 27, 2009) prohibits
the filing of a motion to dismiss. It states that:
“Sec. 14. Prohibited p lea d in g s an d motions. —
The following pleadings, m otions, or p etition s shall
not be allow ed in th e c a ses covered by th is Rule:
a) M otion to dism iss;”

h) Rule on M otion to D ism iss u n d er th e Rules on

E n vironm ental Cases (A.M. 09-6-08-SC)

Q: Is m otion to dism iss allowed in environm ental

cases?
A: No, motion to dismiss is one of the prohibited motions
under the Rules on Environmental Cases.
 CHAPTER XI 799
RULE 15: MOTIONS

jjjP roceduralB asis:

Sec. 2(d), Rule 2, P art II ofA.M. No. 09-6-O8-SC otherwise

known as the Rules o f P rocedure for E nvironm ental Cases
prohibits the filing of a motions to dismiss. It states that:
“Sec. 2. Prohibited p le a d in g s an d m otions. —
The follow ing pleadings and m otion s shall n ot be
allowed:
a) M otion to d ism iss a com p laint.”

Q: D istin ctio n s betw een M otion to D ism iss (Rule 16)

and D em urrer to Evidence (Rule 33).

M otion to D ism iss Demurrer to Evidence

a) A motion to dismiss under a) A motion for demurrer to
Sec. 12, Rule 15, is an om­ evidence under Rule 33 is a
nibus and a litigious mo­ litigated motion;
tion;
b) A motion to dismiss has b) A motion for demurrer to
four (4) grounds mentioned evidence the ground is in­
under Sec. 12, Rule 15, sufficiency of evidence that
namely lack of jurisdiction upon the facts and the law
over the subject matter of the plaintiff has shown no
the action, litis pendentia, right of relief;
barred by prior judgment,
and prescription;
c) A motion to dismiss shall c) A motion for demurrer to
be filed before the filing of evidence shall be filed after
the responsive pleading; the plaintiff has rested its
case;
d) The remedy in case of deni­ d) The remedy in case of deni­
al of the motion to dismiss al of the motion for demur­
is to file an answer within rer to evidence, the remedy
the balance of the period for the defendant is to pro­
in which he is entitled but ceed with the trial, and in
in no case less than five (5) case of adverse decision ap­
days, raised the same as an peal the same;
affirmative defense in the
answer, proceed to trial,
and
800 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

in case of adverse decision

appeal the decision and
raised the denial as assign­
ment or error, unless the
denial is tainted with grave
abuse of discretion hence, 1

certiorari is a remedy;
e) In case of granting of the e) In case of granting of the
motion to dismiss, the or­ motion for demurrer to
der of dismissal is either evidence the order of dis­
with prejudice under Sec. missal is a final order since
13, Rule 15; it is an adjudication on the
merits;
f) The remedy of the plaintiff f) The remedy of the plaintiff
in case of granting of the in case of granting of de­
motion to dismiss is appeal murrer to evidence is ap­
if the dismissal is with prej­ peal the order being a final
udice (Sec. 13, (f) (h) and order and an adjudication
(m), Rule 15 in relation to upon the merits.
Sec. 1, Rule 41.

Q: W hat are th e req u irem en ts for th e filing o f a m otion

for p o stp o n em en t?
A: 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.

Q: W hat is th e d u ty o f th e clerk o f c o u rt?

A: The clerk of court shall not accept the motion unless
accompanied by the original receipt.

13. D ism issal w ith Prejudice:

Sec. 13, Rule 15 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on dismissal of action or claim with prejudice to its
refiling. It states that:
 CHAPTER XI 801
RULE 15: MOTIONS

“Sec. 13. D ism issal w ith prejudice. — Subject

to th e right o f appeal, an order granting a m otion to
dism iss or an affirmative defense that th e cause of
action is barred by a prior judgm ent or by th e statute
o f lim itations; that th e claim or demand set forth
in the plaintifFs pleading has been paid, waived,
abandoned or otherw ise extinguished; or that the
claim on which th e action is founded is unenforceable
under th e provisions o f th e statu te o f frauds, shall bar
th e refiling o f the sam e action or claim." (5, R16)

COMMENTS:
Q: W hat are th e grounds for th e dism issal of th e action
w ith prejudice?
A: Subject to the right of appeal, an order granting a motion
to dismiss or an affirmative defense based on the following
grounds shall bar the refiling of the same action or claim
based on the following grounds, to wit:
1) That the cause of action is barred by a prior
judgment or by the statute of limitations;
2) That the claim or demand set forth in the plaintiffs
pleading has been paid, waived, abandoned or otherwise
extinguished; or
3) That the claim on which the action is founded is
unenforceable under the provisions of the statute of frauds.

Q: W hat are th e grounds where th e dism issal of th e

actio n is w ithout prejudice?
A: The grounds for the dismissal of the action without
prejudice to the refiling of the action are as follows, to wit:
1) That the court has no jurisdiction over the person of
the defending party;
2) That the court has no jurisdiction over the subject
matter of the claim;
3) That venue is improperly laid;
4) That the plaintiff has no legal capacity to sue;
802 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

5) That the pleading asserting the claim states no

cause of action;
6) That a condition precedent for filing the claim has
not been complied with.

Q: W hat are th e possible rem ed ies in case o f denial of

th e m o tio n to d ism iss? (Bar E xam ination 2014)
A: The remedy is to file an answer raising the grounds as
affirmative defenses, go to trial, if the decision is adverse,
raised as an error on appeal, unless the denial is tainted with
grave abuse of discretion, hence, petition for certiorari under
Rule 65 is available.

Case Law:

The ordinaiy procedure, as a general rule, is that after

the denial of a Motion to Dismiss, the defendant should file an
Answer, go to trial and, if the decision is adverse, reiterate the
issues on appeal. The exception is when the court denying the
Motion to Dismiss acted without or in excess of jurisdiction or
with grave abuse of discretion in which case certiorari under
Rule 65 of the Rule of Court may be availed of. (Chang Ik Jin
and Korean Christian Businessmen Association, Inc. vs. Choi
Sung Bong, G.R. No. 166358, September 8, 2010)
Q: W hat is th e n a tu re o f th e o rd er denying th e m otion
to dism iss?
A: An order denying a motion to dismiss is interlocutory
which does not dispose of the action, and therefore not
appealable under Sec. 1(b), Rule 41, hence, subject to petition
for certiorari under Rule 65.

Case Law:

An order denying a motion to dismiss is an interlocutory

order which neither terminates the case nor finally disposes
of it, as it leaves something to be done by the court before the
 CHAPTER XI 803
RULE 15: MOTIONS

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. Therefore, an order denying a motion to dismiss
may only be reviewed in the ordinary course of law by an
appeal from the judgment after trial. The ordinary procedure
to be followed in such cases is to file an answer, go to trial,
and if the decision is adverse, reiterate the issue on appeal
from the final judgment. (Sps. Francisco, Jr. and Amparo De
Guzman vs. Ochoa and Ochoa, G.R. No. 169292, April 13,
2011 )
 CHAPTER XII

RULE 16: MOTION TO DISMISS AND

DISMISSAL OF ACTION BY THE PLAINTIFF

I. RULE 16: MOTION TO DISMISS

[Provisions either deleted or transposed]

Take Note:
1) The grounds for a motion to dismiss under Sec.
1, Rule 16 of the 1997 Rules on Civil Procedure has been
transposed to Sec. 12, Rule 15 limiting only to four (4)
grounds.
2) The other grounds for motion to dismiss previously
stated under Sec. 1, Rule 16 was transposed to Sec. 12,
Rule 8, which grounds should now be raised as affirmative
defenses in the answer.
3) Sec. 2, Rule 16 on the hearing on the motion, Sec.
3, on the resolution of the motion and Sec. 4 on the time to
plead have been deleted.
4) The rule on dismissal of action or claim with
prejudice as previously stated under Sec. 5, Rule 16 was
transposed to Sec. 12, Rule 15.
5) The rule on hearing on the affirmative defenses
under Sec. 6, Rule 16 was transposed to Sec. 12(d), Rule 8.

804
 CHAPTER XII 805
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF

[ II. RULE 17: DISMISSAL OF ACTIONS

1. Dism issal upon Notice of th e Plaintiff:

Sec. 1, Rule 17 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on dismissal of the complaint upon notice by the
plaintiff. It states that:
“Sec. 1. D ism issal upon notice o f plaintiff- — A
com plaint m ay be dism issed by the plaintiff by filing
a notice of dism issal at any tim e before service o f the
answer or o f a m otion for summary judgm ent. Upon
such n otice being filed, th e court shall issue an order
confirm ing th e dism issal. Unless otherw ise stated
in th e n otice, th e dism issal is w ithout prejudice,
except that a notice operates as an adjudication upon
the m erits when filed by a plaintiff who has once
dism issed in a com p etent court an action based on or
including th e sam e claim .” (1)

COMMENTS:
Q: When can th e plain tiff file a notice of dism issal of th e
com plaint?
A: 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.
Q: Will dism issal by notice applicable in case th e re is
already a jud g m en t?
A: No, it is the rule on appeal, or other proceedings after
rendition of a judgment or final order — no longer those on
notice of dismissal — that come into play.

Case Law:

At this point, although no responsive pleading had been

filed by ATSC, it is the rules on appeal, or other proceedings
after rendition of a judgment or final order - no longer those
on notice of dismissal - that come into play. Verily, upon
806 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

the rendition of a judgment or final order, the period “before

service of the answer or of a motion for summary judgment,”
mentioned in Sec. 1 of Rule 17 of the Rules of Court when
a notice of dismissal may be filed by the plaintiff, no longer
applies. As a consequence, a notice of dismissal filed by
the plaintiff at such judgment stage should no longer be
entertained or confirmed.
In view of the foregoing, it was an error on the part
of the RTC to have confirmed the notice of dismissal and
to have dismissed the complaint without prejudice. (Aboitiz
Transport System Corporation and Aboitiz Shipping Corp. vs.
Carlos Gothong Lines, Inc., et al., G.R. No. 198226/G.R. No.
19822, July 18, 2014)
Q: W hat is th e d u ty o f th e co u rt upon n o tic e ?
A: Upon such notice being filed, the court shall issue an
order confirming the dismissal.
Q: W hat is th e n atu re o f th e d ism issal?
A: Unless otherwise stated in the notice, the dismissal is
without prejudice.
Q: W hat is th e ex cep tio n (Bar E xam ination 2018)?
A: 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. (Two Dismissal Rule)
8 ample Form No. 1: Notice Of D ib m im a i, I S k c . 1. R u le 171

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO.___________
For: Sum of Money with Damages
 CHAPTER XII 807
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF

MR. Y,
Defendant,
x -----------------------x
NOTICE OF DISMISSAL
TO: THE BRANCH CLERK OF COURT:
GRE E T I NGS :
Please take notice that the plaintiff is hereby m o v in g fo r
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, without prejudice.
Such other relief and remedies as may be deemed just
and equitable under the premises are likewise prayed for.
Manila, February__, 2020.
YULO AND ASSOCIATES
Counsel for the Plaintiff
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
Lifetime IBP NO. 510283/2-5-016/Mla.
PTR NO. 3647982/1-22-20/Mla.
MCLE Compliance No. VI 4487/1-8-20
Roll No. 38599
Tel. No. 927-9278
CC: MR. Y
1136- A A. Maceda Street,
Sampaloc, Manila
EXPLANATION OF SERVICE
Copy of the Notice of Dismissal was served to defendant’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.
HECTOR A. YULO
808 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. D ism issal Upon M otion o f th e Plaintiff:

Sec. 2, Rule 17 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rules on dismissal of complaint upon motion by the
plaintiff. It states that:
wSec. 2. D ism issal upon motion o f p la in tiff.
— Except as provided in th e preceding se ctio n , a
com plaint shall not be dism issed at th e plaintifTs
in sta n ce save upon approval o f th e court and upon
su ch term s and con d ition s as th e court deem s proper.
If a counterclaim has been pleaded by a defendant
prior to th e service upon him or her o f th e plaintifTs
m otion for dism issal, th e dism issal shall be lim ited
to th e com plaint. The dism issal shall be w ithout
prejudice to th e right o f th e defendant to prosecute
h is or her counterclaim in a separate action u n less
w ithin fifteen (15) calendar days from n o tice o f th e
m otion he or sh e m an ifests h is or her preference to
have h is or her counterclaim resolved in th e sam e
action . U nless otherw ise specified in th e order, a
dism issal under th is paragraph shall be w ithout
prejudice. A class su it shall n ot be d ism issed or
com prom ised w ithout th e approval o f th e court.” (2a)

COMMENTS:
Q: When can th e p lain tiff m ove for th e dism issal of th e
co m p lain t?
A: Except as provided in the preceding section, a complaint
shall not be dismissed at the plaintiffs instance save upon:
1) Approval of the court; and
2) Upon such terms and conditions as the court deems
proper.
Q: W hat is coverage o f th e dism issal of th e co m p lain t?
A: If a counterclaim has been pleaded by a defendant prior
to the service upon him or her of the plaintiffs motion for
dismissal, the dismissal shall be limited to the complaint.
 CHAPTER XII 809
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF
Q: W hat is th e effect o f dism issal on th e d efen d an t’s
cou n terclaim ?
A: 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.
Q: W hat i s t h e n a tu r e o f d is m is s a l?
A: Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice.
Q: W hat is th e rule on dism issal o f class su it?
A: A class suit shall not be dismissed or compromised
without the approval of the court.

S ample F orm Ho. 2; Motion To P ibmim (Sac. 2. R ule 17)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASEN O .______________
For: Sum of Money with Damages
MR. Y,
Defendants,
x ----------------------------x
MOTION TO DISMISS
COMES NOW, the plaintiff, through the undersigned
counsel and u n to this Honorable Court, m ost avers:
1) That on J a n u a ry 30, 2020, plaintiff filed this in stan t
com plaint or Collection of Sum of Money with Damages
against the defendant;
810 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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.
Manila, February__ , 2020.
YULO AND ASSOCIATES
Counsel for the plaintiff
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
Lifetime IBP NO. 510283/2-5-06/Mla.
PTR NO. 3647982/ 1-22-20/Mla.
MCLE Compliance No. VI 4487/1-8-18
Roll No. 38599
Tel. No. 927-9278
NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for Defendant
GREETI NGS:
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on ____________,
2020, at 2:00 p.m.
HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
4-D, 4th Floor Osmena Bldg.,
1991 Mabini St., Malate Manila
 CHAPTER XII 811
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF

EXPLANATION OF SERVICE

Copy of the Motion to Dismiss was served to defendant’s

counsel by registered mail due to time and distance
constraints, and for lack of the undersigned’s staff who can
serve the sam e in person.
HECTOR A. YULO

3. D ism issal Due to th e F ault of th e Plaintiff:

Sec. 3, Rule 17 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on dismissal of the complaint due to the fault of the
plaintiff. It states that:
MSec. 3. D ism issal due to th e fa u lt o f th e p la in tiff.
— If, for no justifiable cause, th e plaintiff fails to
appear on th e date o f th e presentation o f h is or her
evidence in c h ief on th e com plaint, or to prosecute
h is or her action for an unreasonable length o f tim e,
or to com ply with th e se Rules or any order o f th e
court, th e com plaint m ay be dism issed upon m otion
o f th e defendant or upon th e court’s own m otion,
w ithout prejudice to th e right o f th e defendant to
prosecute h is or her counterclaim in th e sam e or in a
separate action. This dism issal shall have th e effect
o f an adjudication upon th e m erits, u n less otherw ise
declared by th e court.” (3a)

COMMENTS:
Q: When can th e co u rt dism iss th e case due to th e fault
of th e plaintiff?
A: 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 or her
counterclaim in the same or in a separate action, based on
the following grounds:
812 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1) If, for no justifiable cause, the plaintiff fails to appear

on the date of the presentation of his or her evidence in chief
on the complaint; or
2) Plaintiff fails to prosecute his or her action for an
unreasonable length of time;
3) Failure to comply with these Rules or any order of
the court.

|_ C a s e L a w j _ J

Under Section 3, Rule 17 of the 1997 Rules of Civil

Procedure, as amended, the failure on the part of the
plaintiff, without any justifiable cause, to comply with any
order of the court or the Rules, or to prosecute his action for
an unreasonable length of time, may result in the dismissal
of the complaint either motu proprio or on motion by the
defendant.
There are three (3) instances when the trial court may
dismiss an action motu proprio, namely:
1) where the plaintiff fails to appear at the time of the
trial;
2) where he fails to prosecute his action for an
unreasonable length of time; and,
3) when he fails tiff, on a motion for reconsideration of
the order of dismissal, may allege and establish a justifiable
cause for such failure. (Allied Banking Corporation vs. Spouses
Rodolfo and Gloria Madriaga, G.R. No. 196670, October 12,
2016)
Q: W hat is th e te s t to d eterm in e th e d o ctrin e of "non-
p ro seq u itu r” as a ground for dism issal?
A: The fundamental test for non prosequitur is whether,
under the circumstances, the plaintiff is chargeable with
want of due diligence in failing to proceed with reasonable
promptitude.
 CHAPTER XII 813
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF

The fundamental test for non prosequitur is whether,

under the circumstances, the plaintiff is chargeable with
want of due diligence in failing to proceed with reasonable
promptitude. There m ust be unwillingness on the part of the
plaintiff to prosecute.
S e c tio n 3 , R ule 17 of th e 1 9 9 7 R u le s o f Civil P ro c e d u re
is explicit that the dismissal of the complaint due to failure
to prosecute “shall have the effect of an adjudication upon
the merits unless otherwise declared by the Court.” The Rule
says:
If, for no justifiable cause, the plaintiff 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 the right of the defendant to prosecute his counterclaim in
the same or in separate action. This dismissal shall have the
effect of an adjudication upon the merits unless otherwise
declared by the court. (Roasters Philippines, Inc., Etc. vs.
George Gaviola, et al., G.R. No. 191874, September 2, 2015)

Q: W hat is th e effect o f th e dism issal of th e m ain action

on th e co u n terclaim ?
A: In case of dismissal of the main action, the counterclaim
whether permissive or compulsory will not be dismissed and
shall be prosecuted in the same case or in a separate action.

_^ase_Lawj_J
A counterclaim arising from the unfounded suit may
proceed despite the dismissal of the complaint for lack of
jurisdiction over the person of defendant-counterclaimant.
Whatever the nature of the counterclaim, it bears the same
integral characteristics as a complaint; namely a cause (or
814 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

causes) of action constituting an act or omission by which a

party violates the right of another. The main difference lies in
that the cause of action in the counterclaim is maintained by
the defendant against the plaintiff, while the converse holds
true with the complaint. If the dismissal of the complaint
somehow eliminates the cause(s) of the counterclaim, then
the counterclaim cannot survive. Yet that hardly is the case,
especially as a general rule. The only apparent exception to
this circumstance is if it is alleged in the counterclaim that
the very act of the plaintiff in filing the complaint precisely
causes the violation of the defendant’s rights. Conversely, if
the counterclaim itself states sufficient cause of action then
it should stand independently of and survive the dismissal of
the complaint.
It bears to emphasize that petitioner’s counterclaim
against respondent is for damages and attorney’s fees arising
from the unfounded suit. While respondent’s Complaint
against petitioner is already dismissed, petitioner may have
very well already incurred damages and litigation expenses
such as attorney’s fees since it was forced to engage legal
representation in the Philippines to protect its rights and to
assert lack of jurisdiction of the courts over its person by
virtue of the improper service of summons upon it. Hence,
the cause of action of petitioner’s counterclaim is not
eliminated by the mere dismissal of respondent’s complaint.
(Aida Padilla us. Globe Asiatique Realty Holdings Corporation,
Filmal Realty Corporation, Delfin Lee and Dexter Lee, G.R. No.
207376, August 6, 2014)
Q: W hat is th e n atu re of dism issal?
A: This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.

Case Law:

In Young v. Spouses Sy, the Court is emphatic that:

The RTC orders dismissing the case for failure to
prosecute are final orders, because such orders of dismissal
operate as a judgment on the merits. This principle is now an
express provision in Section 3, Rule 17 of the Rules of Court,
to wit:
 CHAPTER XII 815
RULE 16: MOTION TO DISMISS & RULE 17: DISMISSAL
OF ACTION BY THE PLAINTIFF
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 the right of the defendant to prosecute his
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, x x x
It is firmly established, and with very few exceptions,
that the remedy against such final order is appeal and not
certiorari.
The general rule is that a writ of certiorari will not issue
where the remedy of appeal is available to the aggrieved
party, x x x. (Systems and Plan Integrator and Development
Corporation vs. Municipal Government o f Murcia, G.R. No.
217121, March 16, 2016)

4. D ism issal o f C ounterclaim , C ross-claim or Third-

p arty Com plaint:_______________________________

Sec. 4, Rule 17 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on dismissal of counterclaim, cross-claim or third-
party complaint. It states that:
wSec. 4 . D ism issal o f counterclaim , cross-claim ,
or th ird-pa rty com plaint. — The provisions o f th is
Rule shall apply to th e d ism issal o f any counterclaim ,
cross-claim , or third-party com plaint. A voluntary
d ism issal by th e claim ant by n o tice as in S ection 1 o f
th is Rule, shall be m ade before a responsive pleading
or a m otion for sum m ary judgm ent is served or, if
there is non e, before th e introdu ction o f evid en ce at
th e trial or hearing.” (4)
816 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: Will th e provision o f th e rule applicable to dism issal
of cou n terclaim , cross-claim , or th ird -p arty com plaint?
A: Yes, as expressly provided by the above-cited rule, the
provisions of this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint.
Q: When to file a vo lu n tary dism issal by n o tice?
A: A voluntary dismissal by the claimant by notice as in
Section 1 of this Rule, shall be made:
1) Before a responsive pleading or a motion for
summary judgment is served; or
2) If there is none, before the introduction of evidence
at the trial or hearing.
 CHAPTER X III

RULE 18: PRE-TRIAL CONFERENCE

1. P re-trial w hen C onducted:

Sec. 1, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on when to conduct pre-trial conference. It states
that:
“Sec. 1. When conducted. — After th e last
responsive pleading has been served and filed, th e
branch clerk o f court shall issu e, w ithin five (5)
calendar days from filing, a n o tic e o f pre-trial w hich
shall be s e t not later than six ty (60) calendar days
from th e filing o f th e la st responsive pleading.” (la)

COMMENTS:
Q: W hat is Pre-Trial C onference?
A: 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. Such conferences between
opposing attorneys may be called at the discretion of the court.
The actions taken at the conference are made the subject of
an order which controls the future course of action. (Fed. R.
Civil, p. 16)
Q: W hen to co n d u ct p re-trial conference u n d er th e
am en d ed ru les?
A: 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
817
818 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

set not later than sixty (60) calendar days from the filing of
the last responsive pleading.

Q: When will th e pre-trial conference be scheduled?

A: After the expiration of the period for filing of the last
responsive pleading has expired the case is ready for pre-trial.

I Lawj_J
Where the last pleading has not yet been served and
filed, the case is not ready for pre-trial. (Pioneer Insurance &
Surety Corp. vs. Hontanosas, 78 SCRA 439) However, the last
pleading need not be literally construed as one having been
served and filed. For purposes of pre-trial, the expiration of
the period for filing the last pleading without it having been
served and filed is sufficient. (Sarmiento vs. Juan, 120 SCRA
403)
Q: W hat is th e prim ary objective o f p re-trial conference?
A: It is essential in the simplification and speedy disposition
of cases to protect the substantive rights of the parties.

Case Law:
Because “pre-trial is essential in the simplification
and the speedy disposition of disputes” (Tiu vs. Middleton,
369 Phil. 829, 837, July 19, 1999, per Panganiban, J., citing
Development Bank of the Philippines vs. Court of Appeals, 169
SCRA 409, 411-413, January 26, 1989), non-observance of
its rules “may result in prejudice to a party’s substantive
rights.” (Saguid vs. Court o f Appeals, 403 SCRA 678, 684,
June 10, 2003, per Ynares-Santiago, J.) Such rules are “n o t
te c h n icalities w hich th e p arties m ay ignore or trifle w ith .”
(Tiu vs. Middleton, supra, p. 837, per Panganiban, J.) The
Rules o f C ourt c an n o t be “ignored a t will and a t random to
th e prejudice o f th e orderly p resen tatio n and assessm en t
of th e issu es an d th e ir ju s t reso lu tio n .” (Limpot vs. Court
o f Appeals, 170 SCRA 367, 377, February 20, 1989, per Cruz,
J.; Air Philippines Corp. vs. International Business Aviation
Services Phils., Inc., G.R. No. 151963, September 9, 2004)
 CHAPTER XIII 819
RULE 18: PRE-TRIAL CONFERENCE

Q: W hat la th e m eaning o f "la st responsive pleading” ?

A: The last permissible responsive pleading that a party can
file is the reply to the answer to the last pleading asserting a
claim.

T h e la s t p e rm is s ib le p le a d in g t h a t a p a rty c a n file is th e
reply to the answer to the last pleading asserting a claim.
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
response to these answers is the reply (Sarmiento vs. Juan,
120 SCRA 403) which is to be filed within 10 days from the
service of the pleading responded to. (Sec. 6, Rule 11, Rules of
Court)
Q: Can th e issue o f lack o f p re-trial conference be
w aived?
A: It is a rule that lack of pre-trial must be objected to
during pre-trial, otherwise it is deemed waived and cannot be
raised during the trial or for the first time on appeal, unless
substantial justice is present.

Case Law: ||

Without doubt, the petitioners-defendants having been

belatedly served summons and brought into the case, were
entitled to a pre-trial as ordained by Sec. 2, Rule 18 of the Rules
of Court. Unless substantial prejudice is shown, however, the
trial court’s failure to schedule a case for pre-trial does not
render the proceedings illegal or void ab initio. Where, as in
this case, the trial proceeded without any objection on the
part of petitioners-defendants by their failure to bring the
matter to the attention of the RTC, the petitioners-defendants
are deemed to have effectively forfeited a procedural right
granted them under the Rules. Issues raised for the first time
on appeal and not raised timely in the proceedings in the
lower court are barred by estoppel. Points of law, theories,
issues and arguments not brought to the attention of the
820 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

trial court ought not to be considered by a reviewing court,

as these cannot be raised for the first time on appeal. To
consider the alleged facts and arguments raised belatedly
would amount to trampling on the basic principles of fair
play, justice and due process. (Francisco Madrid and Edgardo
Bernardo vs. Sps. Bonifacio Mapoy and Felicidad Martinez,
G.R. No. 150887, August 14, 2009)

Q: D istinctions betw een pre-trial in civil actio n (Rule

18) and crim inal actio n (Rule 118)?

Pre-Trial in Civil Cases Pre-Trial in Criminal Cases

(Rule 18) (Rule 118)
a) After the last responsive a) Pre-trial in a criminal
pleading has been served case is ordered by the
and filed, the branch clerk court (Section 1, Rule 118
of court upon order of the of the Rules of Criminal
court shall issue, within Procedure).
five (5) calendar days from
filing, a notice of pre­
trial.” (Section 1, Rule 18
of the 1997 Rules of Civil
Procedure, as amended).
b) Pre-trial in a civil case shall b) In a criminal case, pre­
be conducted after the trial is ordered by the
last responsive pleading court after arraignment
has been served and filed, and within thirty (30) days
the branch clerk of court from the date the court
upon order of the court has acquired jurisdiction
shall issue, within five (5) over the person of the
calendar days from filing, accused (Section 1, Rule
a notice of pre-trial which 118 of the Rules of Criminal
shall be set not later them Procedure).
sixty (60) calendar days
from the filing of the last
responsive (Section 1, Rule
18 of the 1997Rules of Civil
Procedure, as amended).
 CHAPTER XIII 821
RULE 18: PRE-TRIAL CONFERENCE

c) Pre-trial in a civil case c) Pre-trial in a criminal case

considers the possibility
of an amicable settlement
as an important objective
(Section 2(a), Rule 18 o f the
1997 Rules o f Civil Proce­
dure, a s amended).
does not include the con­
sidering of the possibility
of amicable settlement of
criminal liability as one of
its purposes, except when
the law allows the case to
be compromised (Section
1, Rule 118 o f the Rules o f
Criminal Procedure).

d) In a civil case, the agree­ d) In a criminal case, all

ments and admissions
made in pre-trial are not
required to be signed by
the parties and their coun­
sels. They are contained in
the record of pre-trial and
the pre-trial order (Sec­
tion 7, Rule 18 o f the 1997
Rules o f Civil Procedure, as
am ended)
agreements or admissions
made or entered during
the pre-trial conference
shall be reduced in writ­
ing and signed by the ac­
cused and counsel; oth­
erwise, they cannot be
used against the accused
(Section 2, Rule 118 o f the
Rules o f Criminal Proce­
dure)

e) The sanctions for non- e) The sanctions in a criminal

appearance in a pre-trial case are imposed upon the
conference are imposed counsel for the accused
upon the plaintiff which or the prosecutor (Section
will result to the dismissal 3, Rule 118 o f the Rules o f
of the case with prejudice Criminal Procedure).
unless otherwise ordered
by the court to be without
prejudice or the defendant
in a civil case which would
result in the ex-parte pre­
sentation of evidence by
the plaintiff. (Section 5,
Rule 18).

E N ature an d Purpose o f Pre-trial:

rial: I

Sec. 2, Rule 18 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the nature and purpose of pre-trial conference. It
states that:
822 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 2. Nature an d Purpose. — The pre-trial is

m andatory and should be term inated prom ptly. The
court shall consider:
(a) The possib ility o f an am icable settlem en t
or o f a subm ission to alternative m odes o f dispute
resolution;
(b) The sim plification o f th e issues;
(c) The possib ility o f obtaining stip ulations
or adm issions o f facts and o f docum ents to avoid
unnecessary proof;
(d) The lim itation o f th e number and
id entification o f w itn esses and th e settin g o f trial
dates;
(e) The advisability o f a prelim inary reference
o f issu es to a com m issioner;
(f) The propriety o f rendering judgm ent on the
pleadings, or sum m ary judgm ent, or o f dism issing
th e action should a valid ground therefor be found to
exist;
(g) The requirem ent for th e parties to:
1. Mark their resp ective evid en ce if not
y e t m arked in th e judicial affidavits o f their
w itnesses;
2. Exam ine and m ake com parisons o f th e
adverse parties’ evid en ce vis-a-vis th e cop ies to
be marked;
3. M anifest for th e record stipulations
regarding th e faithfuln ess o f th e reproductions
and th e gen u in en ess and due execu tion o f th e
adverse parties’ evidence;
4. Reserve evid en ce n ot available at the
pre-trial, but only In th e following manner:
i. For testim on ial evid en ce, by giving th e
nam e or p osition and th e nature o f th e testim on y
o f th e proposed w itness;
ii. For docum entary evid en ce and other
object evid en ce, by giving a particular description
o f th e evid en ce.
No reservation shall be allowed if n ot m ade in
th e m anner described above.
 CHAPTER XIII 823
RULE 18: PRE-TRIAL CONFERENCE

(h) Such other m atters as m ay aid in th e prompt

d isp osition o f th e action .
The failure w ithout ju st cause o f a party and
cou n sel to appear during pre-trial, d esp ite n otice,
shall resu lt in a waiver o f any objections to th e
faithfuln ess o f th e reproductions marked, or their
gen u in en ess and due execu tion .
The failure w ithout ju st cause o f a party an d /
or cou n sel to bring th e evid en ce required shall be
deemed a waiver of the presentation of such evidence.
The branch clerk o f court shall prepare th e
m in u tes o f th e pre-trial, w hich shall have th e following
format: (See prescribed form)” (2a)

COMMENTS:
Q: W hat is th e n a tu re o f p re-trial conference?
A: Pre-trial is mandatory and should be terminated
promptly.
Q: W hat are th e m ain purposes o f p re-trial conference?
A: The court shall consider the following, to wit:
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 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;
(g) The requirement for the parties to:
1. Mark their respective evidence if not yet marked
in the judicial affidavits of their witnesses;
824 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. Examine and make comparisons of the adverse

parties’ evidence vis-a-tns 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.

3. D eterm in atio n of Issues during Pre-trial:

Q: W hat is th e effect o f a final and executory ju dgm ent

on th e issue o f app licatio n o f an d com pliance w ith Sec. 1,
Rule 18?
A: Issue on the application of Sec. 1, Rule 18 is rendered
moot and academic if there is already a final and executory
decision.

Case Law:

Clearly, this is a question of procedure, particularly

involving the application of and compliance with Sec. 1,
Rule 18 of the 1997 Rules of Civil Procedure. It is axiomatic
that where a decision on the merits of a case is rendered
and the same has become final and executory, the action on
procedural matters or issues becomes moot and academic.
(Albay Electric Cooperative, Inc. vs. Hon. Rafael Santelices,
G.R. No. 132540, April 16, 2009)
 CHAPTER XIII 825
RULE 18: PRE-TRIAL CONFERENCE

Q: W hat is th e effect o f d e term in a tio n of issues during

pre-trial co n feren ce?
A: The determination of issues during the pre-trial
conference bars the consideration of other questions.

Case Law:

The determination of issues during the pre-trial

conference bars the consideration of other questions,
whether during trial or on appeal. (Procopio Villanueva, et
al. vs. CA, G.R. No. 143286, April 14, 2004, citing Macaraeg
vs. CA, G.R. No. 48008, January 20, 1989, 169 SCRA 259)

Q: W hat is th e prim ary in te n tio n o f pre-trial conference

as regards th e issu es in th e case?
A: Pre-trial is primarily intended to insure, that the parties
properly raise all issues necessary to dispose of a case.

Case Law:

Pre-trial is primarily intended to insure that the parties

properly raise all issues necessary to dispose of a case.
(Permanent Concrete Products, Inc. vs. Teodoro, 135 Phil. 364
[1968]) The parties m ust disclose during pre-trial all issues
they intend to raise during the trial, except those involving
privileged or impeaching matters. (Caltex, Inc. vs. Court of
Appeals, G.R. No. 97753, August 10, 1992, 212 SCRA 448)
Although a pre-trial order is not meant to catalogue each
issue that the parties may take up during the trial, issues
not included in the pre-trial order may be considered only if
they are impliedly included in the issues raised or inferable
from the issues raised by necessary implication. (Velasco vs.
Apostol, G.R. No. 44588, May 9, 1989, 173 SCRA 228) The
basis of the rule is simple.

Q: W hat is th e binding effect o f d elim itatio n o f th e

issu es during p re-trial?
A: Delimitation of the issues are binding on the parties
since they agreed on the same.
826 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Petitioners are bound by the delimitation of the issues

during the pre-trial because they themselves agreed to the
same. (Munasque vs. Court o f Appeals, G.R. No. L-39780,
November 11,1985, 139 SCRA 533; Procopio Villanueva, et al.
vs. CA, G.R. No. 143286, April 14, 2004)

4. Availability o f M otion for Ju d g m en t on

th e Pleadings or Sum m ary Ju d g m en t:

Q: Is it co rrect to say th a t m otion for ju d g m en t on

th e pleadings an d sum m ary ju d g m en t are only available
during pre-trial?
A: No. Motion for judgment on the pleadings and summary
judgment is not only available during pre-trial, but even
before pre-trial.

Case Law:

We consider it erroneous on the part of the Court of

Appeals to declare that “it is only at the pre-trial that the
rules allow the courts to render judgment on the pleadings
and summary judgment, as provided by Section 2(g) of Rule
18 of the Rules of Court.” The filing of the motion for summary
judgment may be done prior to the pre-trial. Section 1, Rule 35
of the Rules of Court permits a party seeking to recover upon
a claim, counterclaim, or cross-claim or seeking declaratory
relief to file the motion for a summary judgment upon all or
any part thereof in his favor (and its supporting affidavits,
depositions or admissions) “at any time after the pleading in
answer thereto has been served”; while Section 2 of Rule 35
instructs that a party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is sought may
file the motion for summary judgment (and its supporting
affidavits, depositions or admissions) upon all or any part
thereof “at any time.” As such, the petitioners properly filed
their motion for summary judgment prior to the pre-trial
 CHAPTER XIII 827
RULE 18: PRE-TRIAL CONFERENCE

(assuming that they thereby complied with the requirement

of supporting affidavits, depositions or admissions). (Spouses
Sergio Pascual and Emma Pascual vs. First Consolidated Rural
Bank [Bohol], Inc., et al, G.R. No. 202597, February 8, 2017)

Q: W hat is th e effect o f failure o f th e p a rty o r counsel to

app ear during p re-trial?
A: 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.

Q: W hat is th e effect o f failure o f th e p arty or counsel to

bring th e evidence required?
A: The failure without ju st cause of a party and/or counsel
to bring the evidence required shall be deemed a waiver of the
presentation of such evidence.

Q: W hat is th e d u ty o f th e clerk o f co u rt?

A: The branch clerk of court shall prepare the minutes of
the pre-trial.

Q: W hat is a c o n sen t d ecree?

A: Consent decree—refers to ajudicially-approved settlement
between concerned parties based on public interest and
public policy to protect and preserve the environment. (Sec. 5
ofA.M. 09-6-08-SC on the Rules o f Procedure in Environmental
Cases)

5. Notice o f Pre-trial:

Sec. 3, Rule 18 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules o n Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on notice of pre-trial conference. It states that:
uSec. 3. Notice o f pre-trial. — The n o tice o f pre­
trial shall include th e dates resp ectively s e t for:
(a) Pre-trial; (b) Court-Annexed M ediation; and
(c) Judicial D ispute R esolution, if necessary.
828 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The n otice of pre-trial shall be served on counsel,

or on the party if he or sh e has no counsel. The
counsel served with such n otice is charged with th e
duty o f notifying th e party represented by him or her.
Non-appearance at any o f th e foregoing settin gs
shall be deem ed as non- appearance at th e pre-trial
and shall m erit th e sam e san ction s under Section 5
hereof.” (3a)
COMMENTS:
Q: W hat does th e notice o f pre-trial includes?
A: The notice of pre-trial shall include the dates respectively
set for:
1) Pre-triail;
2) Court-Annexed Mediation; and
3) Judiciad Dispute Resolution, if necessary.

Q: W hat is th e rule on service o f notice of pre-trial

conference?
A: The notice of pre-triad shadl be served on:
1) The counsel; or
2) On the peirty if he or she has no counsel;

Case Law:
Section 3, Rule 18 of the 1997 Rules of Civil Procedure
requires that notice of pre-trial conference be served on
counsel. The counsel served with notice is charged with the
duty of notifying the party he represents. However, when
a party has no counsel, as in this case, the notice of pre­
triad is required to be served personadly on him. In view of
the fact that petitioner was, amd still is, not represented by
counsel, and that as petitioner herself admitted, notice of
the pre-trial conference was served on her, the maindate of
the law was sufficiently complied with. Thus, the fact that
the trial court misteikenly referred to her counsel when no
such counsel exists is immateried. For as long as notice was
 CHAPTER XIII 829
RULE 18: PRE-TRIAL CONFERENCE

duly served on petitioner, in accordance with the rules, the

trial court’s order of dismissal cannot be invalidated due to
statements referring to her counsel, for the same have no
bearing on the validity of the notice of pre-trial. (Clodualda
D. Daaco vs. Valeriana Rosaldo Yu, G.R. No. 183398, June
22, 2015)
Q: W hat is th e duty of th e counsel served w ith notice of
pre-trial?
A: The counsel served with such notice is charged with the
duty of notifying the party represented by him or her.
Q: What is th e effect o f failure to appear on th e above
settin g s?
A: Non-appearance at any of the foregoing settings shall be
deemed as non- appearance at the pre-trial and shall merit
the same sanctions under Section 5 hereof.

S ample F orm No. 1; Notice Of P re-T rial (Sec. 3 f R ule 18)

NOTICE OF PRE-TRIAL

The parties are hereby required to appear personally

or through their duly authorized representative, and their
counsel in the Pre-Trial on a t _______________ o’clock A.M./
P.M., and in the following proceedings:
1. Court-Annexed Mediation: (To be scheduled a t pre-
Inal)
2. Judicial Dispute Resolution: (To be scheduled at
pre-trial if deemed necessary by the court.)
The parties and their counsels are required to be present
a t the pre-trial and to file with the court and serve on the
adverse party at least three (3) days before the date of the
pre-trial their respective pre-trial briefs which shall contain,
among others:
(a) A concise statem ent of the case and the reliefs
prayed for;
(b) A sum m ary of adm itted facts and proposed
stipulation of facts;
830 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(c) The m ain factual a n d legal issu es to be tried or

resolved;
(d) The propriety of referral of factual issu es to
com m issioners;
(e) The docum ents or other object evidence to be
m arked, stating the purpose thereof;
(f) The nam es of the w itnesses, and the sum m ary of
their respective testim onies; and
(g) Brief statem ent of points of law and citation of
authorities.
Failure to file the pre-trial brief shall have the sam e
effect as failure to appear a t the pre-trial.
N on-appearance a t the Pre-Triail or any of the foregoing
settings shall m erit the sanction of dismissed of the action,
for the plaintiff’s and his or her counsel’s non-appearance,
and adlowance of plauntiffs ex parte evidence presentation
and ex parte judgm ent, for defendant’s aind his or her
counsel’s non-appearance. The non-appeairance of a party
an d counsel m ay be excused only for acts of God, force
majeure, or duly substem tiated physiced inability.
A representative, th rough a special power of attorney,
m ay appear on behalf of a party, b u t shall be fully authorized
in writing to enter into an am icable settlem ent, to subm it to
alternative m odes of dispute resolution, and to enter into
stipulations or adm ission of facts an d docum ents.
The parties aind their counsel, who are required to
atten d the Pre-Trial shall be ready.
No reservation of evidence not available during the Pre-
Trial shall be allowed u n less done in the following m anner:
(a) For testim onial evidence, by giving the nam e or
position and the n a tu re of th e testim ony of the proposed
w itness;
(b) For docum entary evidence an d other object evidence,
and electronic evidence, by giving a particular description of
the evidence.
The failure w ithout ju s t cause of a party and counsel to
appear a t the Pre-Trial, despite notice, shall resu lt in a waiver
of any objections to the faithfulness of the reproductions
m arked, or their genuineness and due execution.
 CHAPTER XIII 831
RULE 18: PRE-TRIAL CONFERENCE

The failure without ju s t cause of a party and counsel to

bring the evidence required at the Pre-Trial shall be deemed
a waiver of the presentation of such evidence.
WITNESS, the HON. Court, this day o f ____ Presiding
Judge of this, 20___ , a t___

Branch Clerk of Court

| 6. A ppearance of Parties^

Sec. 4, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on appearance of the parties. It states that:
“Sec. 4 . A ppearance o f p a rties. — It shall be
th e duty o f th e parties and th eir counsel to appear at
th e pre-trial, court-annexed m ediation, and judicial
dispute resolution, if necessary. The non-appearance
o f a party and cou n sel m ay be excused only for acts
o f God, force majeure, or duly substantiated physical
inability.
A representative m ay appear on behalf o f a party,
but m ust be fully authorized in writing to enter into an
am icable settlem en t, to subm it to alternative m odes
o f dispute resolution, and to en ter in to stipulations
or adm issions o f facts and docum ents.”

COMMENTS:
Q: W hat is th e rule on appearance during pre-trial?
A: 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.

Q: W hat is th e n atu re o f th e rule on appearances of th e

p artie s and counsels?
A: Appearances of the parties and counsels at the pre-trial
conference is mandatory.
832 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Rule 18 of the Rules of Court leaves no room for

equivocation; appearance of parties and their counsel at the
pre-trial conference, along with the filing of a corresponding
pre-trial brief, is mandatory, nay, their duty. Their non-
appearance cannot be excused as Sec. 4, in relation to Sec.
6, allows only two exceptions: ( 1 ) a valid excuse; and (2 )
appearance of a representative on behalf of a party who is 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.
(Durban Apartments Corporation, doing business under the
name and style o f City Garden Hotel vs. Pioneer Insurance
and Surety Corporation, G.R. No. 179419, January 12, 2011)
Q: When is non-appearance during p re-trial excused?
A: The non-appearance of a party and counsel may
be excused only for acts of God, force majeure, or duly
substantiated physical inability.
Q: May a rep resen tativ e ap p ear on behalf of th e p arty
during p re-trial?
A: Yes, as expressly mandated by the above cited rule, a
representative may appear on behalf of a party, but m ust 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.
Q: W hat are th e req u irem en ts for ap p earance in case of
a ju rid ical e n tity ?
A: In case of a juridical entity, the person appearing for
and behalf of the party corporation must be duly authorized
by the Board of Directors through a Board Resolution, and
accompanied by a Secretaiy’s Certificate.

In case of a juridical entity, the person appearing for

and behalf of the party corporation must be duly authorized
 CHAPTER XIII 833
RULE 18: PRE-TRIAL CONFERENCE

by the Board of Directors through a Board Resolution, and

accompanied by a Secretary’s Certificate, to represent the
corporation in the proceedings, to appear for and in its behalf;
to sign and submit pleadings and documents; to attend pre­
trial conferences and subsequent hearings, to enter into
stipulation of facts, amicable settlement and approve the
same; to undergo mediation and other alternative dispute
resolution. (Kent vs. Micarez, et al, G.R. No. 185758, March 9,
2011)

S ample F orm No . 2; S pecial P ower O r Attorney (S ec. 4 , R u n

18)

SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:
THAT, I ________________ , of legal age, Filipino
citizen, with postal ad d ress a t _____________________ ,
respectively does hereby nam e, constitute an d appoint,
_______________________, of legal age, Filipino citizen, with
postal ad d ress a t _____________________ to be ou r tru e and
lawful attorney-in-fact, for u s and in our nam e, place and
stead, to do and perform the following special powers, to
wit:
1) To represent me in the pre-trial conference and
su b seq u en t hearings of the above-entitled case, with special
power to m ake adm issions a n d /o r to m ake and subm it
a s well as accept a n d approve com prom ise ag reem ents/
proposals upon such term s an d conditions and u n d e r such
covenants as he m ay deem fit, and to undergo m ediation,
a n d other alternative dispute resolution;
2) To sign, deliver, receive, accept any docum ents, and
m ake the necessary follow-ups which m ay be necessarily
relative to above case;
HEREBY GIVING AND GRANTING u n to my said
attorney-in-fact full power and authority to do and perform
any an d every act and thing w hatsoever requisite, necessary
or proper to be done in and about the prem ises a s fully to
all in ten ts a n d purposes a s I m ight or could do if personally ,
p resent and acting in person; and
HEREBY RATIFYING AND CONFIRMING all th a t my
said attorney-in-fact shall lawfully do and cause to be done
u n d e r and by virtue of these presents.
834 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

IN WITNES8 WHEREOF, we have hereunto set ou r h an d s

a t Manila, Philippines, on this ________________________
day o f _____________________.
MR. X

SIGNED IN THE PRESENCE OF:

1. _________________ 2 . __________________

ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
IN THE CITY OF MANILA ) S.S.
BEFORE ME, a Notary Public, personally appeared MR.
X with SSS I.D. N o s ._______________ ,a t ________________,
_____________________ on _____________ , know n to me
an d to me know n to be the sam e persons who executed the
foregoing in stru m e n ts an d acknowledged to me th a t the
sam e are their free and voluntarily act a n d deed.
WITNESS MY HAND AND SEAL t h is day of February
2020, a t Manila, Philippines.
NOTARY PUBLIC
Doc. N o .____ ;
Page N o .____ ;
Book N o .____ ;
Series of 2020.

S ample F orm No . 3: Board R esolution Amp S ecretary’s

C ertificate.

M inutes of The Special Meeting

of the Board of Directors of
PROFESSIONAL SKILLS AND TECHNOLOGY
DEVELOPMENT CORPORATION
Held a t its Principal Office a t
No. 7 Vice Roy Street, E ast Fairview,
Quezon City on M a rc h __ 2020
Present:
EMETERIO P. SIGNO EMELITA C. SIGNO
ENCARNITA C. VALDEZ LUCITA C. CANDELARIA
MICHELLE A. CATSAO
 CHAPTER XIII 835
RULE 18: PRE-TRIAL CONFERENCE

PROCEEDINGS OF THE MEETING

The acting C hairm an of the Board, EMETERIO P.
SIGNO, presided over the meeting, while the MICHELLE A.
CATSAO, Board Secretary recorded the m inutes thereof.
The Board Secretary certified the presence of a quorum .
The Board unanim ously approved and adopted Board
Resolution No. 01-16 SY 2016, as follows, to wit:
BOARD RESOLUTION NO. 01-1
SERIES OF 2 0 2 0
RESOLVED, as it is hereby RESOLVED th a t the BOARD
had adopted and unanim ously approved the decision of
the corporation appoint MR. EMETERIO P. SIGNO AND/
OR ATTY. FERDINAND A. TAN to represent the above
corporation during the pre-trial conference and subsequent
hearings of a civil case pending case before the Regional
Trial Court of Pasig City, entitled “PROFESSIONAL SKILLS
AND TECHNOLOGY DEVELOPMENT CORPORATION VS.
SPS. AVELINO AND ROSARIO REYES,” docketed as Civil
Case N o .______ , with the following powers and functions,
to wit:
1) To represent the above corporation in the pre-trial
conference and subsequent hearings of the above-entitled
case, with special power to m ake adm issions a n d /o r to
m ake and subm it as well as accept and approve comprom ise
agreem ents/proposals upon such term s and conditions and
u n d e r such covenants a s he may deem fit;
2) To sign, deliver, receive, accept any docum ents, and
m ake the necessary follow-ups which m ay be necessary
relative to above case.
ADJOURNMENT:
There being no further b usiness to tran sact, the m eeting
on motion duly m ade and seconded was adjourned.

ATTESTED AND APPROVED:

EMETERIO P. SIGNO
C hairm an of the Board

EMELITA C. 8IGNO ENCARNITA C. VALDEZ

Member Member
836 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

LUCITA C. CANDELARIA MICHELLE A. CATSAO

Member Member

CERTIFIED CORRECT:
MICHELLE A. CATSAO
Corporate Secretary

S ample F orm N o , 4 ; S ecretary ’s C ertificate .

REPUBLIC OF THE PHILIPPINES)

IN THE CITY OF MANILA ) S.S.
SECRETARY’S CERTIFICATE
I, MICHELLE A. CATSAO, of legal age, Filipino citizen,
with office ad d ress a t No. 7 Vice Roy Street, E ast Fairview,
Quezon City, after having duly sworn to in accordance with
law do hereby depose and say:
1) That I am the Corporate Secretary of Professional
Skills and Technology Development Corporation, a dom estic
corporation existing u n d e r an d by virtue of th e laws of the
Republic of th e Philippines;
2) T hat on M arch 7, 2020, th e Board of Directors of
the above-nam ed corporation held a special m eeting and
approved and unanim ously adopted Board Resolution No.
1, SY 2020, as follows, to wit:
“RESOLVED, as it is hereby RESOLVED th a t the BOARD
had adopted and unanim ously approved the decision of
the corporation appoint MR. EMETERIO P. SIGNO AND/
OR ATTY. FERDINAND A. TAN to represent the above
corporation during th e pre-trial conference and subsequent
hearings of a civil case pending case before the Regional Trial
Court of Pasig City, entitled ‘PROFESSIONAL SKILLS AND
TECHNOLOGY DEVELOPMENT CORPORATION VS. SPS.
AVELINO AND ROSARIO REYES’, docketed as Civil Case
N o .__________ , with the following powers and functions, to
wit:
1. To represent the above corporation in the pre-trial
conference a n d su b seq u en t hearings of the above-entitled
 CHAPTER XIII 837
RULE 18: PRE-TRIAL CONFERENCE

case, w ith special power to m ake adm issions a n d /o r to

m ake and subm it as well as accept an d approve comprom ise
agreem ents /p ro p o sals upon such term s and conditions and
u n d e r such covenants a s he m ay deem fit;
2. To sign, deliver, receive, accept any docum ents, and
m ake the necessary follow-ups which may be necessary
relative to above case;
3. T hat I am executing th is affidavit to a tte st to the
tru th of the foregoing statem ents, and for whatever legal
purpose it m ay serve.
IN WITNESS WHEREOF, I have hereunto affixed my
signature t h i s ___ day of M arch 2020, in the City of Manila.

MICHELLE A. CAT8AQ
Corporate Secretary
SUBSCRIBED AND SWORN TO before me this __
day of M arch 2020, in the City of Manila, affiant exhibited
to me her SSS I.D. No. __________________, issued a t
____________________, o n ____________________________.
NOTARY PUBLIC

DOC. N O .____ ;
PAGE N O .____ ;
BOOK N O .____ ;
SERIES OF 2020

|| 7.~Effect^ofFailure^toA ppear:

Sec. 5, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the effects of failure to appear during pre-trial. It
states that:
“Sec. 5. E ffect o f fa ilu re to appear. — When
duly notified, th e failure o f th e p lain tiff and counsel
to appear w ithout valid cause when so required,
pursuant to th e n ext preceding S ection , shall cause
th e dism issal o f th e action . The dism issal shall be
w ith prejudice, u n less otherw ise ordered by th e court.
838 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A sim ilar failure on th e part o f th e defendant and

counsel shall be cause to allow th e plain tiff to present
h is or her evid en ce ex-parte w ithin ten (10) calendar
days from term ination o f th e pre-trial, and th e court
to render judgm ent on th e basis o f th e evid en ce
offered.” (5a)

COMMENTS:

Q: W hat is th e effect o f failure o f th e p lain tiff to appear

during p re-trial conference?
A: 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 cause the dismissal of the
action. (Principle of non-suited)

Case Law:

Thus, the failure of a party to appear at the pre-trial

has adverse consequences. If the absent party is the plaintiff,
then he may be declared non-suited and his case dismissed.
If it is the defendant who fails to appear, then the plaintiff
may be allowed to present his evidence ex parte and the court
to render judgment on the basis thereof.
In certain instances, however, the non-appearance
of a party may be excused if a valid cause is shown. What
constitutes a valid ground to excuse litigants and their
counsels at the pre-trial is subject to the sound discretion
of a judge. Unless and until a clear and manifest abuse of
discretion is committed by the judge, his appreciation of a
party’s reasons for his non-appearance will not be disturbed.

Section 3, Rule 18 of the 1997 Rules of Civil Procedure

requires that notice of pre-trial conference be served on
counsel. The counsel served with notice is charged with the
duty of notifying the party he represents. However, when a
party has no counsel, as in this case, the notice of pre-trial
 CHAPTER XIII 839
RULE 18: PRE-TRIAL CONFERENCE

is required to be served personally on him. In view of the fact

that petitioner was, and still is, not represented by counsel,
and that as petitioner herself admitted, notice of the pre-trial
conference was served on her, the mandate of the law was
sufficiently complied with. Thus, the fact that the trial court
mistakenly referred to her counsel when no such counsel
exists is immaterial. For as long as notice was duly served
on petitioner, in accordance with the rules, the trial court’s
order of dismissal cannot be invalidated due to statements
referring to her counsel, for the same have no bearing on
the validity of the notice of pre-trial. (Clodualda D. Daaco vs.
Valeriana Rosaldo Yu, G.R. No. 183398, June 22, 2015)

Q: W hat Is th e n atu re o f d ism issal?

A: The dismissal shall be with prejudice, unless otherwise
ordered by the court.

Q: W hat are th e possible rem ed ies in case of order of

dism issal for failure o f th e p lain tiff to ap p ear during p re­
tria l co n feren ce?
A: 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 an action with prejudice is appealable under Sec.
1, Rule 41.
Under the Rules, if the order of dismissal is without
prejudice, then the remedy is to refile the case or since appeal
is not available under Sec. 1[h] Rule 41, Rules o f Court, petition
for certiorari is the remedy under the third paragraph of Sec.
1, Rule 41, and it is tainted with grave abuse of discretion
amounting to lack or in excess of jurisdiction. (Sec. 1, Rule
65, Rules o f Court)

Q: Effect o f failure to ap p ear on th e p a rt o f th e plain tiff

during p re-trial in en v iro n m en tal cases?
A: The court shall not dismiss the complaint, except upon
repeated and unjustified failure of the plaintiff to appear.
The dismissal shall be without prejudice, and the court may
840 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

proceed with the counterclaim. (Sec. 7, Rule 3, Special Rules

on Environmental Cases)

b) On th e P art o f th e D efendant:

Q: W hat is th e effect o f failure o f th e d efen d an t to appear

during p re-trial co n feren ce?
A: 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) calendar days from
termination of the pre-trial, and the court to render judgment
on the basis of the evidence offered.

Case Law:

We cannot fault the RTC for allowing the respondents

to present their evidence ex parte in view of the failure of
petitioners to attend the pre-trial conference as it merely
adhered to the Rules. Thus, Rule 18, Section 5 of the 1997
Rules of Court:
Section 5. Effect of failure to appear. — The failure
of the plaintiff to appear when so required pursuant to
the next preceding section shall be cause for dismissal of
the action. The dismissal shall be with prejudice, unless
otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff
to present his evidence ex parte and the court to render
judgment on the basis thereof.
The aforesaid rule explicitly provides that both parties
(and their counsel) are mandated to appear at a pre­
trial except for: (1) a valid excuse; and (2) appearance of a
representative on behalf of a party who is 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 circumstances.
In the present case, petitioners failed to attend the pre­
trial conference. They did not even give any excuse for their
non-appearance. It was only during the appeal in the RTC
 CHAPTER XIII 841
RULE 18: PRE-TRIAL CONFERENCE

that petitioners explained that their non-attendance was due

to the fact that their counsel lost his calendar. At any rate, this
still cannot be considered a justifiable excuse for their non-
attendance as it bespeaks of carelessness and indifference
to the importance of pre-trial to explore possible ways to
avoid a protracted trial. Thus, the RTC properly issued an
Order allowing respondents to present evidence e x p a rte .
(N icom edes A u g u sto , G om ercindo J im e n e z , M arcelio P aquibot
a n d R o b erta S ila w a n vs. A n to n io C arlota D y a n d M ario Dy,
G.R. No. 2 1 8 7 3 1 , F eb ru a ry 13, 2 0 1 9 )

Q: Who m ay receive th e evidence ex p a rte ?

A: In e x p a r te hearings, and in any case where the parties
agree in writing, the court may delegate the reception of
evidence to its clerk of court who is a member of the bar as
mandated by Sec. 9, Rule 30.

Besides, Sec. 9, Rule 30, 1997 Rules of Civil Procedure

is very specific that: “xxx in default or e x p a r te hearings, and
in any case where the parties agree in writing, th e court m a y
d e le g a te th e reception o f e v id e n c e to its clerk o f court w h o is a
m e m b e r o f th e bar. xxx” As a branch Clerk of Court who is a
non-lawyer, she ought to know under the said rule that it is
only a member of the bar who is authorized to receive evidence
e x p a r te . Records reveal that there is no order of the presiding
judge showing that she was authorized to act as such.
Respondent even committed further blunder when, aware of
the existing rules and even without prior authority from the
judge, she gave the appearance to the parties concerned that
she is legally collecting commissioner’s fee. (M aritoni M. N ieva
vs. S a tu m in a A lv a re z-E d a d , A.M . No. P -O l 1 1 4 5 9 , J a n u a r y 31,
2005)

Q: Can th e clerk o f c o u rt dem and p ay m en t of

com m issio n er’* fee for th e recep tio n o f evidence ex
p a rte ?
A: No. Clerks of Court are not authorized to collect
compensation for services rendered as commissioners in e x
842 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

proceedings pursuant to Circular No. 50-2001 dated

p a r te
August 17, 2001 issued by Office of the Court Administrator.

Here, respondent overstepped her powers and

responsibilities. The records convincingly show that she
demanded and received a commissioner’s fee from the litigant
in an e x p a r te proceeding. Such act violates Section B, Chapter
II of the M a n u a l f o r C lerks o f C ourt which provides: “No Branch
Clerk of Court shall demand and/or receive commissioner’s
fees for the reception of evidence e x p a rte . ”
This rule has been restated in Circular No. 50-2001
dated August 17, 2001 issued by the Office of the Court
Administrator, which partly states: “For the guidance and
information of all concerned, *xxx Clerks of Court are not
authorized to collect compensation for services rendered as
commissioners in e x p a r te proceedings.’” In C oncepcion vs.
H ubilla, we held that “branch clerks of court are not entitled
to demand or receive commissioner’s fees for the reception of
evidence e x p a r te .” (M aritoni M. N ieva vs. S a tu m in a A lv a re z-
E d a d , su p ra )

8. P re-trial Brief:

Sec. 6, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on the filing of pre-trial brief. It states that:
“8 ec. 6 . Pre-Trial brief. — The parties shall file
w ith th e court and serve on th e adverse party, in such
m anner as shall ensure their receipt th ereo f at lea st
three (3) calendar days before th e date o f th e pre-trial,
th eir resp ective pre-trial briefs w hich shall contain,
am ong others:
(a) A co n cise sta tem en t o f th e case and th e
reliefs prayed for;
(b) A sum m ary o f adm itted facts and proposed
stipulation o f facts;
 CHAPTER XIII 843
RULE 18: PRE-TRIAL CONFERENCE

(c) The m ain factual and legal issu e s to be tried

or resolved;
(d) The propriety o f referral o f factual issu e s to
com m issioners;
(e) The d ocum ents or other object evid en ce to
be m arked, statin g th e purpose thereof;
(f) The nam es o f th e w itn esses, and th e
sum m ary o f their resp ective testim on ies; and
(g) A brief sta tem en t o f p oin ts o f law and
cita tio n o f authorities.
Failure to file th e pre-trial brief shall have th e
sam e effect as failure to appear at th e pre-trial." (8)

COMMENTS:
Q: When to file p re-trial brief?
A: 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.
Q: Would Mheavy p ressu re of w ork” sufficient to excuse
th e p lain tiff in filing p re-trial brief?
A: Yes, by way of exception, if there is no manifest and
evident pattern or scheme to delay the disposition of the case
or a wanton failure to observe a mandatory requirement of
the Rules.

Case Law:

The counsel of BPI invokes “heavy pressures of work”

to explain his failure to file the Pre-Trial Brief with the RTC
and to serve a copy thereof to Dando at least three days prior
to the scheduled pre-trial conference. True, in Olave vs.
Mistas, we did not find “heavy pressures of work” as sufficient
justification for the failure of therein respondents’ counsel to
timely move for pre-trial. However, unlike the respondents in
Olave, the failure of BPI to file its pre-trial brief with the RTC
844 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

and provide Dando with a copy thereof within the prescribed

period under Sec. 1, Rule 18 of the Rules of Court, was the
first and, so far, only procedural lapse committed by the bank
in Civil Case No. 03-281. BPI did not manifest an evident
pattern or scheme to delay the disposition of the case or a
wanton failure to observe a mandatory requirement of the
Rules. In fact, BPI, for the most part, exhibited diligence
and reasonable dispatch in prosecuting its claim against
D a n d o by im m e d ia te ly m o v in g to s e t Civil C a se No. 0 3 -2 8 1
for pre-trial conference after its receipt of Dando’s Answer
to the complaint; and in instantaneously filing a Motion for
Reconsideration of the 10 October 2003 Order of the RTC
dismissing Civil Case No. 03-281. (Bank o f the Philippine
Islands vs. Domingo R. Dando, G.R. No. 177456, September 4,
2009)
Q: W hat is th e effect o f failure to file pre-trial brief or to
appear during pre-trial?
A: If the absent party is the plaintiff, then he may be declared
non-suited and his case dismissed; if it is the defendant who
fails to appear, then the plaintiff may be allowed to present
his evidence ex-parte and the court to render judgment on the
basis thereof.

! Case Leuk_
This Court takes the occasion to clarify that while it was
correct to allow respondent to present his evidence ex parte
for petitioner’s failure to file a pre-trial brief and to appear in
the pre-trial conference, it was not proper for petitioner, being
the defendant in the case a quo, to be declared non-suited
under the Rules of Court. The failure of a party to appear at
the pre-trial has adverse consequences. Section 5, Rule 18
of the Rules of Court provides that if the absent party is the
plaintiff, then he may be declared non-suited and his case
dismissed; if it is the defendant who fails to appear, then the
plaintiff may be allowed to present his evidence ex-parte and
the court to render judgment on the basis thereof.
At any rate, proceeding to our point, such declaration of
non-suit against petitioner was already upheld by this Court
 CHAPTER XIII 845
RULE 18: PRE-TRIAL CONFERENCE

with finality. Hence, due to its failure to file a pre-trial brief

and to appear in the pre-trial conference, petitioner lost its
right to present evidence to support its allegations.
It is, thus, bad enough for petitioner’s case that the
questions posed before us are purely factual matters that
this Court, generally, cannot review as explained above. The
fact that petitioner, for being declared non-suited, was not
able to present evidence to support its claims is surely fatal
to its case. The records Eire bereft of any evidence to support
petitioner’s clsum that it paid advanced rental and deposit
and that the same have not yet been refunded or utilized;
nor was there any record to definitely show that the subject
electric bills pertEun only to a month when petitioner was not
occupying the premises anymore. (Booklight, Inc. vs. Tiu, G.R.
No. 213650, June 17, 2019)
Q: W hat are th e c o n te n ts of a pre-trial brief?
A: PEirties respective pre-trial briefs which shall contain,
among others:
(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 referrEd 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, Emd the summary of
their respective testimonies; and
(g) A brief statement of points of law and citation of
authorities.

Q: W hat is th e effect o f failure to file pre-trial brief?

A: Failure to file the pre-tri£il brief shEdl have the same effect
as failure to appeeir at the pre-triEd.
846 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Sample Form Wo. 5; P re-T rial B rief (Sic . 6 . R ule 18)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant,
x ----------------------- x
p r e -t r ia l b r i e f

COMES NOW, th e PLAINTIFF, through the undersigned

counsel and unto this Honorable Court, m ost respectfully
subm its his Pre-Trial brief p u rsu a n t to the Order of the
Court, and avers:
a) A statem ent of their willingness to enter into
amicable settlem ent or indicating the desired term s or to
subm it the case to any of the alternative modes of dispute
resolution;
b) A sum m aiy of adm itted facts and proposed
stipulation of facts;
c) The issues to be tried or resolved;
d) The docum ents or exhibits to be presented, stating
the purpose thereof (No evidence shall be allowed to be
presented and offered during the trial in support of a party’s
evidence-in-chief other th an those th at had been earlier
identified and pre-m arked during the pre-trial, except if
allowed by the court for good cause shown.);
e) A m anifestation of their having availed or their
intention to avail themselves of discovery procedures or
referral to commissioners; and
f) The num ber and nam es of the witnesses, the
substance of their testim onies, and the approximate
num ber of hours th a t will be required by the parties for the
presentation of their respective witnesses.
 CHAPTER XIII 847
RULE 18: PRE-TRIAL CONFERENCE

Respectfully Subm itted.

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime NO. 014 5 1 0 / 2-2-16
PTR NO. 8 9 3 2 9 8 1 6 /2 -2 6 -2 0 /Mia.
Roll No. 38488
MCLE Exemption No. VI 00214/4-8-19
Tel. No. 247-1757

CC: YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OF SERVICE
Copy of th e Pre-trial Brief was served to D efendant’s
counsel by registered mail due to time and distance
constraints, and for lack of the undersigned’s staff who can
serve the sam e in person.
FERDINAND A. TAN

9. Pre-Trial Order:

Sec. 7, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rules on issuance of pre-trial order. It states that:
“Sec. 7. Pre-Trial Order. — Upon term ination
o f th e pre-trial, th e court shall issu e an order w ithin
ten (10) calendar days w hich shall recite in detail the
m atters taken up.
848 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The order shall include:

(a) An enum eration o f th e adm itted facts;
(b) The m inutes o f th e pre-trial conference;
(c) The legal and factual is s u e /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 w ithin th e period provided by the
Rules;
(g) The case flowchart to be determ ined by the
court, which shall contain the different stages o f the
proceedings up to th e prom ulgation of th e decision
and th e use o f tim e frames for each stage in settin g
th e trial dates;
(h) A statem en t that the one-day exam ination
of w itness rule and m ost im portant w itness rule under
A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be
strictly followed; and
(i) A statem en t that the court shall render
judgm ent on th e pleadings or summary judgm ent, as
th e case may be.
The direct testim on y o f w itn esses for th e plaintiff
shall be in th e form of judicial affidavits. After the
identification of such affidavits, cross-exam ination
shall proceed im m ediately.
Postponem ent o f presentation o f th e parties’
w itn esses at a scheduled date is prohibited, except
if it is based on acts o f God, force majeure or duly
substantiated physical inability o f the w itness
to appear and testify. The party who caused the
postponem ent is warned that th e presentation of
its evidence m ust still be term inated w ithin the
remaining dates previously agreed upon.
Should th e opposing party fail to appear w ithout
valid cause stated in th e next preceding paragraph,
th e presentation of th e scheduled w itness will proceed
with the absent party being deem ed to have waived
th e right to interpose objection and conduct cross-
exam ination.
 CHAPTER XIII 849
RULE 18: PRE-TRIAL CONFERENCE

The co n ten ts o f th e pre-trial order shall control

th e subsequent proceedings, u n less m odified before
trial to prevent m anifest inju stice. (7a)

COMMENTS:
Q: When to issue a pre-trial order?
A: 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.

Q: W hat are th e m a tte rs s ta te d in th e pre-trial order?

A: The pre-trial order shall include the following, to wit:
(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.
Q: W hat is th e rule on th e d ire ct testim o n y of th e
p la in tiffs w itnesses?
A: The direct testimony of witnesses for the plaintiff shall
be:
1) In the form of judicial affidavits; and
2) After the identification of such affidavits, cross-
examination shall proceed immediately.
850 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e rule on postp o n em en t of p resen tatio n of

p artie s’ w itnesses?
A: 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.
Q: W hat is th e consequence to th e p arty causing th e
postp o n em en t?
A: 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.
Q: What is th e effect of failure o f th e opposing party to
appear?
A: 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.
Q: W hat is th e binding effect of th e c o n ten ts of pre-trial
order?
A: The contents of the pre-trial order shall control the
subsequent proceedings, unless modified before trial to
prevent manifest injustice.
Sample Form Wo. 6: Pre-Trial Order (Sac. 7. Rule 18)

PRE-TRIAL ORDER
I. PLAINTIFF’S EVIDENCE:
A. Docum entary and other Object Evidence:
Exhibit “A” - Description;
Exhibit “B” - Description;
Exhibit “C” - Description;
B. Testimonial Evidence:
Judicial Affidavit of_________; Judicial Affidavit of
_______ Judicial Affidavit o f _______
C. Reserved Evidence Description;
 CHAPTER XIII 851
RULE 18: PRE-TRIAL CONFERENCE

II. DEFENDANT’S EVIDENCE:

A. Documentary and other Object Evidence:
Exhibit “A” - Description;
Exhibit “B” - Description;
Exhibit “C” - Description;
B. Testimonial Evidence:
Judicial Affidavit of ________: Judicial Affidavit of
_______ Judicial Affidavit of______
C. Reserved Evidence: Description;
Evidence not pre-marked and listed herein shall not be
allowed during trial.
III. ADMITTED FACTS AND STIPULATION OF FACTS:
IV. ISSUES TO BE TRIED OR RESOLVED
In case there are no more controverted facts or genuine
issues to be resolved, the court shall so declare in the pre-trial
order and shall motu proprio consider the case submitted,
without prejudice to a party moving, for judgment on the
pleadings or summary judgment, 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. However, if there are controverted facts or
genuine issues to be resolved, the court shall first refer the
case to the Philippine Mediation Center Unit for mediation
purposes.
V. MANIFESTATION OF PARTIES HAVING AVAILED
OR THEIR INTENTION TO AVAIL OF DISCOVERY
PROCEDURES OR REFERRAL TO COMMISSIONERS:
VI. NUMBER AND NAMES OF WITNESSES, THE
SUBSTANCE OF THEIR TESTIMONIES, AND
APPROXIMATE NUMBER OF HOURS THAT WILL BE
REQUIRED BYTHE PARTIES FOR THE PRESENTATION
OF THEIR RESPECTIVE WITNESSES:
VII. SCHEDULE OF CONTINUOUS TRIAL DATES FOR
BOTH PLAINTIFF AND DEFENDANT:
Trial shall proceed on , all at 8:30 A.M. and 2:00 P.M.,
for the plaintiff or claiming party to present and terminate
its evidence; and on, all at 8:30 A.M. and 2:00 P.M., for
the defendant or defending party to present and terminate
its evidence.*[7?u's will depend on the number of witnesses
listed. It is suggested that for every witness, at least two (2)
trial dates should be allotted. The trial dates may likewise be
one (1) day apart.]
852 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The trial dates are final and intransferrable, and no

motions for postponement that are dilatory in character
shall be entertained by the court. If such motions are
granted in exceptional cases, the postponement/s by either
party shall be deducted from such party’s allotted time to
present evidence.
The parties are hereby ordered to immediately proceed
and personally appear at the Philippine Mediation Center
located at (PMC Unit) today, (date today) with or without
their counsel/s, for mediation proceedings. The assigned
Mediator is ordered to submit a report to this court on the
results of the mediation based on the factual and legal issues
to be resolved within a non- extendible period of thirty (30)
calendar days from the date of the court’s referral of this
case to the PMC Unit.
Should mediation fail after the lapse of the said 30-day
period, the parties are ordered to appear before the court
so that the trial shall proceed on the trial dates indicated
above. Only if the judge of the court to which the case was
originally raffled is convinced that settlement is possible
that the case may be referred to another court for judicial
dispute resolution, which shall be conducted within a non­
extendible period of fifteen (15) calendar days from notice of
the court-annexed mediation. If judicial dispute resolution
fails, trial before the original court shall proceed on the
dates agreed upon.
Failure of the party or his or her counsel to comply with
the abovementioned schedule of hearings and deadlines
shall be a ground for imposition of fines and other sanctions
by the court.
The parties and their counsel are hereby notified hereof,
and the court shall no longer issue a subpoena to the parties
present today.
CONFORMITY
Plaintiff
Defendant
Plaintiff’s Counsel
Defendant’s Counsel
ATTESTED:
Branch Clerk of Court
NOTED BY:
Presiding Judge
 CHAPTER XIII 853
RULE 18: PRE-TRIAL CONFERENCE

10. C ourt Annexed M ediation:

Sec. 8, Rule 18 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on court-annexed mediation. It states that:
“Sec. 8. Court-Annexed M ediation. — After pre­
trial and, after issu es are joined, th e court shall refer
th e parties for m andatory court-annexed m ediation.
The period for court-annexed m ediation shall
n ot exceed thirty (30) calendar days w ithout further
ex ten sio n .” (n)

COMMENTS:
Q: W hat is th e d u ty o f th e co u rt after pre-trial and th e
issues have been jo in ed ?
A: After pre-trial and, after issues are joined, the court shall
refer the parties for mandatory court-annexed mediation.

11. Possibility of Amicable S ettlem ent-

Court-M ediation:
Q: W hat is th e n atu re o f co u rt annexed m ediation?
A: Court-annexed mediation is part of pre-trial and
mandatory which is intended to give parties to settle the case.

Case Law:
Right now, court-annexed mediation is part of the pre­
trial conference and is mandatory. A trained and accredited
mediator of the Philippine Mediation Center (PMC) unit
tackles the case for 30 days and if the mediation ends in a
settlement, either a compromise agreement, a joint motion
to dismiss the case by the parties, or a manifestation of the
plaintiff that the civil claim has been satisfied, is submitted
to the court for approval. A compromise agreement is the law
between the parties and since it is binding on them, they are
expected to abide by it in good faith. (Fiesta World Mall Corp.
vs. Lindbergh Philippines, Inc., G.R. No. 152471, August 18,
2006)
854 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: Are lawyers allowed to appear during m ediation

proceedings?
A: Yes, lawyers are allowed to attend mediation and their role
is that of an adviser, consultant, or free legal aid counsellor
for indigent litigants for the purpose of settlement.

Case Law:

Lawyers are allowed to attend mediation and their role

is that of an adviser, consultant, or free legal aid counsellor
for indigent litigants particularly in the drafting of the
compromise agreement or they can be mediators themselves.
(A.M. No. 04-3-05 and Bar Matter 2012) No doubt, mediation
is the “wave of the future” (Frabelle Fishing Corp. vs. PhilAm
Properties, et al, G.R. No. 158580, August 17, 2007) and the
gateway of Filipino lawyers into international/global legal
practice.
Q: W hat are th e cases which are m edia table?
A: To overcome the problem, the Supreme Court in 2001
authorized the use of court-annexed mediation (CAM) as a
form of alternative dispute resolution (ADR) for the following:
a) All civil cases;
b) Settlement of estate;
c) Cases cognizable by the Lupon Tagapamayapa;
d) Cases covered by the Rule on Summary Procedure;
e) Civil aspect of imprudence and negligence under
Title 14 of the Revised Penal Code; and
f) Family law issues, such as support, custody,
visitation, guardianship of minors, and property matters;
g) Criminal cases enumerated under par. 9, Title III
of the Revised Guidelines for Continuous Trial in Criminal
Cases (A.M. No. 10-06-20-SC), i.e., the civil aspect or claim
for damages for violation of B.P. 22 (bounced checks), simple
theft, libel, and estafa, violation of SSS and Pag-Ibig Law,
etc., can be mediated as well.
 CHAPTER XIII 855
RULE 18: PRE-TRIAL CONFERENCE

Q: W hat are th e cases w hich can n o t be th e subject of

com prom ise?
A: The prohibition on compromise extends to the following,
to wit:
a) Civil status of persons;
b) Validity of marriage;
c) Legal separation (counselling is more appropriate);
d) Ground for legal separation;
e) Future support;
f) Legitime; and
g) Jurisdiction.
Q: W hat is th e rule on th e period of m ediation u n d er th e
am ended ru les?
A: The period for court-annexed mediation shall not exceed
thirty (30) calendar days without further extension.

12. Ju d ic ia l D ispute R esolution (JDR):

Sec. 9, Rule 18 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on judicial dispute resolution. It states that:
“Sec. 9 . Ju dicial D ispute Resolution. — Only if
th e judge o f th e court to w hich th e case was originally
raffled is convinced th at settlem en t is still possible,
th e case m ay be referred to another court for judicial
dispute resolution. The judicial dispute resolution
shall be conducted w ithin a non-extendible period o f
fifteen (15) calendar days from n otice o f failure o f th e
court-annexed m ediation.
If judicial dispute resolution fails, trial before
th e original court shall proceed on th e dates agreed
upon.
All proceedings during th e court-annexed
m ediation and th e judicial dispute resolution shall be
confidential.” (n)
856 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e rule on th e co n d u ct of judicial dispute
resolution?
A: 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.
Q: When to conduct judicial dispute resolution?
A: 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.
Q: W hat is th e effect if th e jud icial dispute resolution
fails?
A: If judicial dispute resolution fails, trial before the original
court shall proceed on the dates agreed upon.
Q: What is th e n atu re of th e proceedings?
A: All proceedings during the court-annexed mediation and
the judicial dispute resolution shall be confidential.

|| 1 3 . J u d g m e n t a fte r P re-trial:

S e c . 1 0 , R u le 18 o f t h e 2 0 1 9 A m e n d m e n ts t o t h e 1 9 9 7
R u le s o n C iv il P ro ced u re (A.M. N o. 1 9 -1 0 -2 0 ) provides for
the rule on rendition of judgment after pre-trial. It states that:
uSec. 10. Judgm ent a fter p re -tria l — Should
there be no more controverted facts, or no more
genuine issu e as to any m aterial fact, or an absence
o f any issu e, or should th e answer fail to tender an
issu e, th e court shall, w ithout prejudice to a party
m oving for judgm ent on the pleadings under Rule 34
or sum mary judgm ent under Rule 3 5 , motu proprio
Include in th e pre-trial order that th e case be subm itted
for sum mary judgm ent or judgm ent on the pleadings,
w ithout need o f position papers or memoranda. In
such cases, judgm ent shall be rendered w ithin ninety
(90) calendar days from term ination o f th e pre-trial.
 CHAPTER XIII 857
RULE 18: PRE-TRIAL CONFERENCE

The order of th e court to subm it th e case for

judgm ent pursuant to th is Rule shall not be th e
subject to appeal or certiorari.” (n)

COMMENTS:
Q: When can th e co u rt subm it th e case for judgm ent
after p re-trial?
A: T he c o u rt sh a ll, w ith o u t p re ju d ic e to a p a rty m oving
for judgment on the pleadings under Rule 34 or summary
judgment under Rule 35 can 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 the following instances:
1) When there be no more controverted facts;
2) When there be no more genuine issue as to any
material fact;
3) An absence of any issue; or
4) Should the answer fail to tender an issue.
Q: When can th e co u rt ren d er ju d g m en t?
A: In such cases, judgment shall be rendered within ninety
(90) calendar days from termination of the pre-trial.

Q: Can th e order be subject to appeal or certio rari?

A: 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.
 CHAPTER XIV

RULE 19: INTERVENTION

1. Who May Intervene?

Sec. 1, Rule 19 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) for the rule
on the persons who may intervene. It states that:
“See. 1. Who m ay intervene. — A person who has
a legal in terest in th e m atter in litigation, or in th e
su ccess o f either o f th e parties, or an in terest against
both, or is so situated as to be adversely affected
by a distribution or other disposition o f property
in th e custody of th e court or o f an officer thereof
may, with leave o f court, be allowed to intervene in
th e action. The court shall consider w hether or not
th e intervention will unduly delay or prejudice the
adjudication o f th e rights o f th e original parties, and
w hether or not th e intervenor’s rights m ay be fully
protected in a separate proceeding.” (1)

COMMENTS:
Q: W hat is In tervention?
A: Intervention 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. (Republic vs. Sereno, G.R. No. 237428,
May 11, 2018)
Q: W hat is th e natu re o f in terv en tio n ?
A: The remedy of intervention is not a matter of right but
rests on the sound discretion of the Court upon compliance
858
 CHAPTER XIV 859
RULE 19: INTERVENTION

with the requirements under Section 1, Rule 19 of the Rules

of Court.

Case Law:

Nevertheless, the remedy of intervention is not a matter

of right but rests on the sound discretion of the Court upon
compliance with the first requirement on legal interest and
the second requirement that no delay and prejudice should
result as spelled out under Section 1, Rule 19 of the Rules of
Court.
According to jurisprudence, Intervention is not matter of
absolute right but may be permitted by the court when the
applicant shows facts which satisfy the requirements of the
statute authorizing intervention. Under our Rules of Court,
what qualifies person to intervene is his possession of legal
interest in the matter in litigation or in the success of either
of the parties, or an interest against both; or when he is so
situated as to be adversely affected by distribution or other
disposition of property in the custody of the court or an officer
thereof. As regards the legal interest as qualifying factor,
this Court has ruled that such interest must be of direct
and immediate character so that the intervenor will either
gain or lose by the direct legal operation of the judgment.
The interest m ust be actual and material, concern which is
more than mere curiosity, or academic or sentimental desire;
it must not be indirect and contingent, indirect and remote,
conjectural, consequential or collateral. (Republic vs. Sereno,
G.R. No. 237428, May 11, 2018)
Q: W hat is th e n atu re o f th e power of th e co u rt in
gran tin g or denying m otion for in terv e n tio n ?
A: It should be stressed that the allowance or disallowance
of a motion for intervention is addressed to the sound
discretion of the courts.

Case Law:

It should be stressed that the allowance or disallowance

of a motion for intervention is addressed to the sound
860 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 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, et al. vs. Board
of Airlines Representatives, G.R. No. 193247, September 14,
2011)

Q: What is th e purpose o f in terv en tio n?

A: 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.

|| Case Law;

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. (Metropolitan Bank and Trust
Company, Substituted by Meridian [SPV-AMCI] Corporation
vs. International Exchange Bank, G.R. No. 176008, August
10, 2011; Virra Mall Tenants Association, Inc. vs. Virra Mall
Greenhills Association, Inc., et al, G.R. No. 182902, October 5,
2011 )

Q: Who m ay intervene in th e action?

A: 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 intervene in the action.

J j^ C a s e L a w J

Intervention is a remedy by which a third party, who is

not originally impleaded in a proceeding, becomes a litigant
 CHAPTER XIV 861
RULE 19: INTERVENTION

for purposes of protecting his or her right or interest that may

be affected by the proceedings. Intervention is not an absolute
right but may be granted by the court when the movant
shows facts which satisfy the requirements of the statute
authorizing intervention. The allowance or disallowance of
a motion to intervene is within the sound discretion of the
court.
Section 1, Rule 19 of the Rules provides that a court may
allow in te rv e n tio n :
(a) if the movant has legal interest or is otherwise
qualified, and
(b) if the intervention will not unduly delay or prejudice
the adjudication of rights of the original parties and if the
intervenor’s rights may not be protected in a separate
proceeding. Both requirements must concur.
Section 2, Rule 19 of the Rules requires a movant to
file the motion for intervention before the RTC’s rendition
of judgment and to attach a pleading-in-intervention. The
court may allow intervention after rendition of judgment if
the movant is an indispensable party. (Neptune Metal Scrap
Recycling, Inc. us. Manila Electric Company and the People of
the Philippines, G.R. No. 204222, July 4, 2016)

Q: W hat are th e factors to be considered by th e co u rt in

case o f in terv en tio n ?
A: The court in case of intervention shall consider the
following, to wit:
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.

|| Case Law^

As a general guide in determining whether a party

may intervene, the court shall consider whether or not the
862 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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. (Sec. 2[b], Rule 12; Sec. 1, Rule 19; Virra Mall
Tenants Association, Inc. vs. Virra Mall Greenhills Association,
Inc., et al., G.R. No. 182902, October 5, 2011)

Q: W hat are th e essen tial req u isites to w arrant

in terv e n tio n ?
A: The essential requisites for intervention to be allowed
are, the movant has a legal interest, and it m ust not unduly
delay or prejudice the adjudication of the rights of the parties.

Case Law:

To warrant intervention under Rule 19 of the Rules of

Court, two (2) requisites m ust concur: (1) the movant has a
legal interest on the matter in litigation; and (2) intervention
must not unduly delay or prejudice the adjudication of the
rights of the parties, nor should the claim of the intervenor be
capable of being properly decided in a separate proceeding.
(Metropolitan Bank and Trust Company, Substituted by
Meridian [SPV-AMCI] Corporation vs. International Exchange
Bank, G.R. No. 176008, August 10, 2011)

Q: W hat is th e op tio n o f th e in terv en o r?

A: The intervenor can choose not to participate in the case.

The intervenor can choose not to participate in the case

and he will not be bound by the judgment. (Heirs of Francisca
Medrano vs. Estanislao de Vera, G.R. No. 165770, August 9,
2010 )

Q: W hat is th e n atu re o f th e in te re s t m en tio n ed u n d er

Sec. 1, Rule 19?
A: It must be actual, substantial, material, direct, and
immediate.
 CHAPTER XIV 863
RULE 19: INTERVENTION

11 c « - L a w jj
The interest contemplated by law must be actual,
substantial, material, direct and immediate, and not simply
contingent or expectant. It must be, if such direct and
immediate character that the intervenor will either gain or lose
by the direct legal operation and effect of the judgment. (Asia’s
Emerging Dragon Corp. vs. Department of Transportation and
Communication, G.R. No. 169914, March 24, 2008)

Q: W hat are th e possible rem edies in case of denial of

in terv en tio n ?
A: The order denying a motion for leave or interpleader is
a final order that finally disposes of the issue or the action
and therefore appealable under Sec. 1 of Rule 41, OR the
intervenor may file a separate action to enforce his claim.

Q: D ifferences betw een In terv en tion (Rule 19) and

Interpleader (Rule 62).
A: Intervention and Interpleader should be distinguished in
the following manner as follows, to wit:

Intervention Interpleader
a) Intervention is an a) Interpleader is an original
ancillary action. action.
b) Intervention is proper b) Interpleader presupposes
in any of the four th a t the plaintiff has no
situations m entioned in interest in the subject
the Rule who h as legal m atter of the action or has
interest therein. an interest therein which,
in whole or in part, is not
disputed by the other
parties to the action.
c) In a com plaint in inter­ c) In interpleader, the defen­
vention, the defendants d an ts are being sued pre­
are already original cisely to implead them.
parties to the pending
suit.
864 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

d) Intervention can be d) Interpleader can be filed

filed where the original
action is pending.
e) The remedy in case of
denial of intervention
is to appeal the denial
being a final order or file
a separate action.
a t the first instance with
the Regional Trial Court or
M etropolitan Trial Court,
Municipal Tried Court de­
pending on the n a tu re of
the property an d its value/
assessed.
e) The rem edy in interpleader
is to appeal the judgm ent.

S ample F orm Wo. 1; Motion F or Leave O r C ourt T o F ile

Ihtkrvkhtioh (Sec. I , R ole 19)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant.
x -------------------------- x
MOTION FOR LEAVE OF COURT TO
FILE INTERVENTION
COME8 NOW, th e Intervenor, through the undersigned
counsel and u n to this Honorable Court, and with prior leave
of court, m ost respectfully avers:
1. That he h as legal interest in the m atter in litigation
in the above-entitled action for accounting between plaintiff
and defendant;
 CHAPTER XIV 865
RULE 19: INTERVENTION

2. That he has been, for the last seven (7) years, and
still is, the caretaker of the commercial apartm ent for which
accounting is being asked, and it was the contract between
him, on the one hand and plaintiff and defendant, former
co-owners of said prem ises, on the other, th a t the movant
would receive a m onthly salary of P10,000.00, plus 10% of
the yearly net proceeds of the said commercial prem ises,
as his com pensation as caretaker thereof, which yearly net
proceeds am ounts to P100,000.00 more or less. Copy of the
Complaint in Intervention is hereto attached as Annex “1”
hereof;
3. That, for the last seven (7) years, the Intervenor had
not been given even a single centavo corresponding to his
10% share in said net proceeds.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court th a t the
in sta n t motion for intervention be granted and the attached
Complaint in Intervention be adm itted.
O ther relief and rem edies as may be deemed ju s t and
equitable under the prem ises are likewise prayed for.
Manila, for Pasig City, February 13, 2020.
ATTY. GERARDO L. LARA
Counsel for the Intervenor
No. 137 Palali Street,
Project 7, Quezon City
IBP NO. 710095/2-5-20
PTR NO. 2 4 6 8 9 0 /1 -2 2 -2 0 /Mia.
MCLE NO, V 28798-2-12-19
Roll No. 38479

NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
ATTY. HECTOR A. YULO
Counsel for Defendant
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on _____________ ,
2020, a t 2:00 p.m.
GERARDO L. LARA
866 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

CC: TLLM LAWW & ASSOCIATES

LAW OFFICE
Counsel for the Plaintiff
Room 1408 E rm ita Center Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
Erm ita, Manila
YULO AND ASSOCIATES
Counsel for the D efendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OF SERVICE
Copy of the Motion for Intervention was served to
D efendant’s counsel by registered mail due to time and
distance constraints, and for lack of the undersigned’s staff
who can serve the sam e in person.

GERARDO L. LARA

2. Tim e to Intervene:

Sec. 2, Rule 19 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the period to intervene. It states that:
uSec. 2. Time to intervene. — The m otion to
intervene m ay be filed at any tim e before rendition of
judgm ent by th e trial court. A copy o f th e pleading-
in- interven tion shall be attached to th e m otion and
served on th e original parties.” (2)

COMMENTS:
Q: When to in terv en e?
A: The motion to intervene may be filed at any time before
rendition of judgment by the trial court.
Q: Can in terv e n tio n be filed even beyond th e period
prescribed u n d er Sec. 1, Rule 19?
 CHAPTER XIV 867
RULE 19: INTERVENTION

A: Yes, interventions have been allowed even beyond the

period prescribed in the Rule, when demanded by the higher
interest of justice.

Interventions have been allowed even beyond the period

prescribed in the Rule, when demanded by the higher interest
o f ju s tic e . In te rv e n tio n s h a v e a ls o b e e n g r a n te d to afford
indispensable parties, who have not been impleaded, the
right to be heard even after a decision has been rendered by
the trial court, when the petition for review of the judgment
has already been submitted for decision before the Supreme
Court, and even where the assailed order has already
become final and executory. In Lim vs. Pacquing, the motion
for intervention filed by the Republic of the Philippines was
allowed by this Court to avoid grave injustice and injury and
to settle once and for all the substantive issues raised by
the parties. (Eleazar P. Quinto and Gerino A. Tolentino, Jr. vs.
COMELEC, G.R. No. 189698, February 22, 2010)

Q: Is in terv e n tio n allowed during th e pendency of

P etitio n for Review?
A: As a general rule, intervention cannot be made at the
appeal stage where it is necessary to protect some interest
which cannot otherwise be protected, but and may be allowed
for the purpose of preserving the intervenor’s right to appeal.

|^ C 5 a s e I * w J

As a general rule, intervention cannot be made at the

appeal stage. Section 2, Rule 19 of the Rules of Court, governing
interventions, provides that “the motion to intervene may be
filed at any time before rendition of judgment by the tried
court.” This rule notwithstanding, intervention may be allowed
after judgment where it is necessary to protect some interest
which cannot otherwise be protected, and may be allowed
for the purpose of preserving the intervenor’s right to appeal
868 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“The rule on intervention, like all other rules of procedure,

is intended to make the powers of the Court fully and
completely available for justice x x x and aimed to facilitate
a comprehensive adjudication of rival claims overriding
technicalities on the timeliness of the filing thereof.”
Thus, in exceptional cases, the Court may allow
intervention although the trial court has already rendered
judgment. In fact, the Court had allowed intervention in one
case even when the petition for review was already submitted
for decision before it. (Navy Officer’s Village Association,
Inc. [NOVAI] vs. Republic o f the Philippines, G.R. No. 177168,
August 3, 2015)

Q: W hat are th e facto rs w hich can be considered for th e

relax atio n o f th e period to in terv e n e?
A: Interventions have been allowed even beyond the period
prescribed in the Rule when demanded by the higher interest
ofjustice, to afford indispensable parties the right to be heard,
to avoid grave injustice and injury, and to settle once and for
all the substantive issues raised by the parties; or grave legal
issues raised.

LawJ
The rule requiring intervention before rendition of
judgment, however, is not inflexible. As jurisprudence has
shown, interventions have been allowed even beyond the
period prescribed in the Rule when demanded by the higher
interest of justice; to afford indispensable parties, who
have not been impleaded, the right to be heard; to avoid
grave injustice and injury and to settle once and for all the
substantive issues raised by the parties; or, because of the
grave legal issues raised, as will be shown below. Stated
otherwise, the rule may be relaxed and intervention may be
allowed subject to the court’s discretion after consideration of
the appropriate circumstances. After all, Rule 19 of the Rules
of Court is a rule of procedure whose object is to make the
powers of the court fully and completely available for justice;
its purpose is not to hinder or delay, but to facilitate and
promote the administration of justice.
 CHAPTER XIV 869
RULE 19: INTERVENTION

The status of the Ombudsman as a party adversely

affected by - and therefore with the legal standing to assail
- the CA Decision did not automatically warrant the grant of
its motion to intervene. Since the Court does not find any of
the excepting circumstances laid down in jurisprudence, the
general rule provided under Section 2 of Rule 19 squarely
applies. Hence, while the Ombudsman had legal interest to
intervene in the proceeding, the period for the filing of its
motion to intervene had already lapsed as it was filed after the
CA had promulgated its Decision. (Office o f the Ombudsman
vs. Efren Bongais, Housing and Homesite Regulation Officer
TV, City Housing and Settlements Office, Calamba City, G.R.
No. 226405, July 23, 2018)

3. Pleadings in In terv en tio n :

Sec. 3, Rule 19 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the filing of pleadings-in-intervention. It states
that:
wSec. 3. Pleadings-in-intervention. — The
intervenor shall file a com plaint-in- interven tion if
he or sh e asserts a claim against either or all o f th e
original parties, or an answ er-in-intervention if he
or sh e u n ites w ith th e defending party in resistin g a
claim against th e la tter.” (3a)

COMMENTS:

Q: W hat are th e p le a d in g s t o be file d in case of

in te r v e n t io n ?
A: The intervenor shall file:
1) A complaint-in-intervention if he or she asserts a
claim against either or all of the original parties; or
2) An answer-in-intervention if he or she unites with
the defending party in resisting a claim against the latter.
870 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

E
|[— 1.....1
2
Answer to th e C om plaint-in-Intervention:

Sec. 4, Rule 19 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rule on the filing of answer to the complaint-in­
intervention. It states that:
uSec. 4 . A nsw er to com plaint-in-intervention.
— The answer to th e com plaint-ln-interventlon shall
be filed w ithin fifteen (15) calendar days from n otice
o f th e order adm itting th e sam e, u n less a different
period Is fixed by th e court.” (4a)

COMMENTS:
Q: W hen to file an answ er to th e com plaint-in­
in terv e n tio n ?
A: The answer to the complaint-in-intervention shall be
filed within fifteen f151 calendar days from notice of the order
admitting the same, unless a different period is fixed by the
court.
Q: W hat is th e effect o f failure to file an answ er to th e
com p lain t-in -in terv en tio n ?
A: Failure to file the required answer can give rise to default.

Case Law:

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 of the 1997 Rules of Civil
Procedure 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. National Power Corporation, Sps.
Roberto LI. Arcinue and Arabela Arcinue, G.R. No. 178789,
November 14, 2012)
 CHAPTER XIV 871
RULE 19: INTERVENTION

Procedure:

Q: Is in terv e n tio n allowed in cases falling u n d er th e

Rules on S um m ary P rocedure?
A: No, intervention is one of the prohibited pleadings under
Sec. 19(1) of the Rules on Summary Procedure.

P rocedural Basis:

Sec. 19(1) of th e R ules on S um m ary P rocedure

prohibits the filing of an intervention. It states that:

"Sec. 19. Prohibited p lea d in g s an d motions. —

The follow ing pleadings, m otion s, or p etitio n s shall
n ot be allow ed in th e c a ses covered by th is Rule:
X X X

1) In terven tion s.”

b) In te rv en tio n u n d er th e 2 0 1 6 Revised Rules on

Sm all Claim s Cases:

Q: Is in terv e n tio n allowed in cases falling u n d er th e

2016 Revised Rules on Sm all Claim s C ases?
A: No, intervention is one of the prohibited pleadings under
Sec. 19(1) of the 2016 Revised Rules on Small Claims Cases.*1

P rocedural Basis:

Sec. 14(1) o f th e Revised 2 0 1 6 Rules on Sm all Claim s

Cases prohibits the filing of an intervention. It states that:
"Sec. 14. P rohibited p le a d in g s a n d motions. —
The follow ing pleadings, m otion s, or p etitio n s shall
n o t be allow ed in th e c a ses covered by th is Rule:
xxx
1) In terven tion s.”
872 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

c) In te rv e n tio n u n d er th e Rules on Writ of Amparo

an d H abeas Data:

Q: W hat are th e pleadings w hich are n o t allowed in a

p e titio n for W rit o f Amparo and H abeas D ata?
A: The pleadings which are not allowed under the Rules on
the Writ of Amparo and Rules on Habeas Data are as follows,
to wit:
a) Counterclaim;
b) Cross-claim;
c) Third-party complaint;
d) Reply; and
e) Pleadings in intervention.

d) M otion for In te rv e n tio n u n d er th e Rules

on E nv iro n m en tal Cases:

Q: Is m o tio n for in terv e n tio n allowed in cases falling

u n d er th e Rules on E nviro n m en tal C ases?
A: Yes, motion for intervention is one of the allowed motions
under Sec. 1, Rule 2, Part I of the Rules on Environmental
Cases.

P rocedural Basis:

Sec. 1, Rule 2, P art II o f A.M. No. 09-6-08-SC otherwise

known as the Rules of Procedure for E n vironm ental Cases
allows the filing of motion for intervention in environmental
cases. It states that:
“Sec. 1. Pleadings a n d m otions allow ed. — The
pleadings and m otion s th a t m ay be filed are com plaint,
answer w hich m ay include com pulsory counterclaim
and cross-claim , m otion for in terven tion , m otion
for discovery and m otion for reconsideration o f th e
judgm ent.
 CHAPTER XIV 873
RULE 19: INTERVENTION

M otion for p ostponem ent, m otion for new trial

and p etition for relief from judgm ent shall be allowed
in highly m eritorious c a ses or to prevent a m anifest
m iscarriage o f ju stic e .”

S ample F orm Wo. 2: Motiom F or Leave Of Court T o F ile

I mtervewtioh (Sec. 1. R ole 19)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
MR. Y,
Defendant,
x -------------------------- x
MOTION FOR LEAVE OF COURT TO
FILE INTERVENTION
COMES NOW, th e Intervenor, through the undersigned
counsel and u n to this Honorable Court, and with prior leave
of court, m ost respectfully avers:
1. T hat he h as legal interest in the m atter in litigation
in the above-entitled action for accounting between plaintiff
and defendant;
2. That he h as been, for the last seven (7) years, and
still is, the caretaker of the commercial ap artm en t for which
accounting is being asked, and it was the contract between
him, on the one hand and plaintiff and defendant, form er
co-owners of said prem ises, on the other, th a t the m ovant
would receive a m onthly salary of P10,000.00, plus 10% of
the yearly net proceeds of the said commercial prem ises,
a s his com pensation as caretaker thereof, which yearly net
proceeds am ounts to P100,000.00 more or less. Copy of the
Com plaint in Intervention is hereto attached as Annex “1”
hereof;
874 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. That, for the last seven (7) years, the Intervenor had
not been given even a single centavo corresponding to his
10% sh are in said net proceeds.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of th is Honorable C ourt th a t the
in sta n t motion for intervention be granted and the attached
Com plaint in Intervention be adm itted.
O ther relief and rem edies as m ay be deem ed ju s t and
equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, February 13, 2020.

ATTY. GERARDO L. LARA

Counsel for the Intervenor
No. 137 Palali Street,
Project 7, Quezon City
IBP NO. 71009 5 /2 -5 -2 0
PTR NO. 2 4 6 8 9 0 /1-22-20/M la.
MCLE NO, V 28798-2-12-19
Roll No. 38479

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for th e Plaintiff

ATTY. HECTOR A. YULO

Counsel for Defendant
GREETINGS:
Please subm it the foregoing m otion for th e consideration
and approval of the Honorable Court on _____________ ,
2020, a t 2:00 p.m.
GERARDO L. LARA

CC: TAN LIBRANDA ONEZA

& CEPILLO LAW OFFICE
Counsel for th e Plaintiff
Room 1408 E rm ita C enter Bldg.,
1350 Roxas Blvd., corner Sta. Monica St.,
Erm ita, M anila
 CHAPTER XIV 875
RULE 19: INTERVENTION

YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OP SERVICE

Copy of the Motion for Intervention w as served to

D efendant’s counsel by registered mail due to time and
distance constraints, and for lack of the undersigned’s staff
who can serve the sam e in person.

GERARDO L. LARA
 CHAPTER XV

CALENDAR OF CASES, SUBPOENA AND

COMPUTATION OF TIME

I. RULE 20: CALENDAR OF CASES

| 1. C alendar o fC ases:

Sec. 1, Rule 20 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on calendar of cases that:
"Sec. 1. C alendar o f cases. — The clerk o f court,
under th e direct supervision o f th e judge, shall keep
a calendar o f ca ses for pre-trial, for trial, th o se whose
trials were adjourned or postponed, and th o se w ith
m otion s to s e t for hearing. Preference shall be given
to habeas corpus ca ses, electio n , cases, special civil
action s, and th ose so required by law.” (1)

COMMENTS:

Q: W hat is th e rule on calendar of cases?

A: 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.

876
 CHAPTER XV 877
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

2. A ssignm ent of Cases:

Sec. 2, Rule 20 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on assignment of cases. It states that:
MSec. 2. A ssignm ent o f cases. — The assignm ent
o f c a ses to th e different branches o f a court shall
be done exclu sively by raffle. The assign m en t shall
be done in open se ssio n o f w hich adequate n otice
shall be given so as to afford in terested parties the
opportunity to be p resen t.” (2)

COMMENTS:
Q: How will th e assig n m en t o f cases be done?
A: 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.”

II. RULE 21: SUBPOENA

1. Subpoena and Subpoena Duces Tecum:

Sec. 1, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on subpoena. It states that:
“Sec. 1. Subpoena a n d subpoena du ces tecum. —
Subpoena is a process directed to a person requiring
him or her to attend and to te stify at th e hearing
or th e trial o f an action , or at any investigation
conducted by com p eten t authority, or for th e taking
o f his or her deposition. It m ay also require him or
her to bring w ith him or her any books, docum ents, or
other th in gs under h is or her control, in w hich case it
is called a subpoena du ces tecum .” (la)
878 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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COMMENTS:
Q: What is su b p o e n a a d te stifc a n d u m ?
A: 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 or her deposition.
Q: W hat is su b p o e n a d u c e s tecum"?
A: 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.

2. By Whom Subpoena Is Issued:

Sec. 2, Rule 21 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on who may issue subpoena. It states that:
MSec. 2. By whom issued. — The subpoena may
be issued by:
(a) The court before whom th e w itness is
required to attend;
(b) The court of th e place where th e 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 Ju stice o f th e Supreme Court or the
Court o f Appeals in any case or investigation pending
within th e Philippines.
When an application for a subpoena to a prisoner
is made, th e judge or officer shall exam ine and study
carefully such application to determ ine whether the
sam e is made for a valid purpose.
No prisoner sentenced to death, reclusion
perpetua or life im prisonm ent and who is confined
in any penal in stitu tion shall be brought outside the
penal in stitu tion for appearance or attendance in any
court unless authorized by th e Supreme Court.” (2a)
 CHAPTER XV 879
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

COMMENTS:
Q: Who m ay issue a subpoena?
A: 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 of the Court
of Appeals in any case or investigation pending within the
Philippines.

Q: W hat is th e rule in case a subpoena is issued to

p riso n er?
A: 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.
Q: W hat is th e lim ita tio n in th e issu an ce and
im p lem en tatio n o f subpoena?
A: 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.

3. F orm s an d C o n ten ts of Subpoena:

Sec. 3, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the forms and contents of subpoena. It states
that:
“S ec. 3. Form a n d contents. — A subpoena
shall sta te th e nam e o f th e court and th e title o f
880 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e action or investigation, shall be directed to the

person w hose attendance is required, and in th e case
o f a subpoena duces tecum , it shall also contain a
reasonable description o f th e books, docum ents or
thin gs dem anded which m ust appear to th e court
prima facie relevant.” (3)

COMMENTS:
Q: W hat is t h e form an d c o n t e n t s o f a s u b p o e n a ?
A: A subpoena shall state the following:
1) Name of the court and the title of the action or
investigation;
2) It shall be directed to the person whose attendance
is required; and
3) 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.

4. Q uashing o f Subpoena:

Sec. 4, Rule 21 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the quashal of subpoena. It states that:
“Sec. 4. Quashing o f subpoena. — The court may
quash a subpoena duces tecum upon m otion promptly
made and, in any event, at or before th e tim e specified
therein if it is unreasonable and oppressive, or the
relevancy o f th e books, docum ents or thin gs does not
appear, or if th e person in w hose behalf th e subpoena
is issued fails to advance the reasonable co st o f th e
production thereof.
The court may quash a subpoena a d testifican du m
on th e ground that th e w itn ess is not bound thereby.
In either case, th e subpoena m ay be quashed on th e
ground that th e w itness fees and kilom etrage allowed
by th e se Rules were not tendered when th e subpoena
was served.” (4)
 CHAPTER XV 881
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

COMMENTS:
Q: W hat are th e grounds for th e q uashal o f subpoena
duces tecu m ?
A: The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the
time specified therein, on the following grounds:
1) Unreasonable and oppressive; or
2) The relevancy of the books, documents or things
does not appear; or
3) If the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production thereof.
Q: W hat are th e grounds for th e quashal of subpoena ad
testifican d u m ?
A: The court may quash a subpoena ad testificandum upon
motion promptly made and, in any event, at or before the
time specified therein, on the following grounds:
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.

5. Subpoena for D eposition:

Sec. 5, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on issuance of subpoena for deposition. It states
that:
“Sec. 5. Subpoena fo r deposition. — Proof o f
service o f a n otice to take a d ep osition, as provided
in S ectio n s 15 and 25 o f Rule 2 3 , shall c o n stitu te
su fficien t authorisation for th e issu an ce o f subpoenas
for th e persons nam ed in said n otice by th e clerk o f
th e court o f th e place in w hich th e deposition is to be
taken. The clerk shall n ot, how ever, issu e a subpoena
d u ces tecu m to any su ch person w ithout an order o f
th e court.” (5)
882 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e rule issuance o f subpoena for th e taking
of deposition?
A: Proof of service of a notice to take a deposition, as
provided in Secs. 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.

Q: W hat is th e du ty of clerk o f co u rt?

A: The clerk shall not, however, issue a subpoena duces
tecum to any such person without an order of the court.

6. Service o f Subpoena:

Sec. 6, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on service of subpoena. It states that:
“Sec. 6. Service. — Service o f a subpoena shall be
made in th e sam e m anner as personal or substituted
service o f sum m ons. The original shall be exhibited
and a copy thereof delivered to th e person on whom it
is served. The service m ust be made so as to allow the
w itn ess a reasonable tim e for preparation and travel
to th e place o f attendance.
Costs for court attendance and th e production
o f docum ents, and other m aterials subject o f the
subpoena shall be tendered or charged accordingly.
(6a)

COMMENTS:
Q: How will subpoena be served?
A: Service of a subpoena shall be made in the following
manner, to wit:
1) In the same manner as personal or substituted
service of summons;
 CHAPTER XV 883
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

2) The original shall be exhibited and a copy thereof

delivered to the person on whom it is served;
3) The service m ust be made so as to allow the witness
a reasonable time for preparation and travel to the place of
attendance
Q: W hat is th e rule on th e co st for service of subpoena?
A: Costs for court attendance and the production of
documents and other materials subject of the subpoena shall
be tendered or charged accordingly.

7. Personal A ppearance in Court:

Sec. 7, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on personal appearance in court. It states that:
"Sec. 7. Personal appearan ce in c o u r t — A
person presen t in court before a judicial officer m ay be
required to testify as i f he or sh e were in attendance
upon a subpoena issu ed by su ch court or officer.” (7a)

COMMENTS:
Q: W hat is th e rule in case a person is p re se n t in c o u rt?
A: 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 issued by such court or officer.

8. Com pelling A ttendance:

Sec. 8, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on compelling the person under subpoena. It states
that:
“Sec. 8. Compelling attendance. — In case o f
failure o f a w itn ess to atten d , th e court or judge issuing
th e subpoena, upon proof o f th e service th ereof and o f
th e failure o f th e w itn ess, m ay issu e a warrant to the
sh eriff o f th e province, or h is or her deputy, to arrest
884 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

th e w itn ess and bring him or her before th e court or

officer where h is or her attendan ce is required, and
th e c o st o f su ch warrant and seizure o f such w itn ess
shall be paid by th e w itn ess if th e court issu in g it
shall determ ine th at h is or her failure to answer th e
subpoena was willful and w ithout ju st excu se.” (8a)

COMMENTS:
Q: W hat are th e consequences o f failure of th e w itness
to com ply w ith th e subpoena?
A: 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:
1) Issue a warrant to the sheriff of the province, or his
deputy, to arrest the witness and bring him before the court
or officer where his attendance is required; and
2) 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 failure to answer the subpoena was
willful and without just excuse.

|| 9. C ontem pt; ||

Sec. 9, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on contempt for failure to comply subpoena. It states
that:
“Sec. 9. Contempt. — Failure by any person
w ithout adequate cause to obey a subpoena served
upon him or her shall be deem ed a con tem p t o f
th e court from w hich th e subpoena is Issued. If th e
subpoena was not Issued by a court, th e disobedience
thereto shall be punished in accordance w ith th e
applicable law or Rule.” (9a)
 CHAPTER XV 885
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

COMMENTS:
Q: W hat is th e effect o f failure to obey subpoena?
A: 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.

|[_101^ x c c p tio n s :

Sec. 10, Rule 21 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the exceptions to sanctions for failure to obey
subpoena. It states that:
“Sec. 10. Exceptions. — The provisions o f
S ectio n s 8 and 9 o f th is Rule shall n ot apply to a
w itn ess who resides m ore th an one hundred (100)
kilom eters from h is or her residence to th e place
where he or sh e is to te s tily by th e ordinary course
o f travel, or to a d eten tion prisoner if no perm ission
o f th e court in w hich h is or her case is pending was
obtained.” (10a)
COMMENTS:
Q: W hat are th e ex cep tio n s to th e san ctio n s for failure
to com ply w ith subpoena (“V iatory R ights of th e W itness
Rule”)?
A: The provisions of Sections 8 and 9 of this Rule shall not
apply to the following:
1) A witness who resides more than one hundred (100)
kilometers from his or her residence to the place where he or
she is to testily by the ordinary course of travel (viatory rights
o f the witness rule)1,or
2) To a detention prisoner if no permission of the court
in which his or her case is pending was obtained.
886 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

III. RULE 22: COMPUTATION OF TIME

1. How to C om pute T im e? *12

Sec. 2, Rule 22 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the computation of the period of time. It states
that:
“Sec. 1. How to com pute tim e. — In com puting
any period o f tim e prescribed or allowed by th e se
Rides, or by order o f th e court, or by any applicable
sta tu te, th e day o f th e act or ev en t from w hich the
designated period o f tim e begins to run is to be
excluded and th e date o f perform ance included. If th e
last day o f th e period, as th u s com puted, falls on a
Saturday, a Sunday, or a legal holiday in th e place
where th e court s its, th e tim e shall not run u n til th e
n ext working day.” (1)

COMMENTS:
Q: W hat is th e rule in case of co m p u tatio n of tim e ?
A: In computing any period of time prescribed or allowed
by these Rules, or by order of the court, or by any applicable
statute, the following rule shall be observed:
1) 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.
2) 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.
Q: W hat are th e R egular H olidays and 3 Nationwide
Special holidays u n d er ex isting law?
A: S ection 26 (a) and (b), C hapter 7, Book I of Executive
O rder No. 292, otherw ise know n as “The A dm inistrative
 CHAPTER XV 887
CALENDAR OF CASES, SUBPOENA AND COMPUTATION OF TIME

Code o f 1987,” as amended by R epublic Act 9849 enumerate

the regular and special holidays to be observed in the country.
It states that:
Unless otherwise modified by law, order, or proclamation,
the following regular holidays and special days shall be
observed in the country:
“(a) Regular H olidays
New Year’s Day January 1
Maundy Thursday Movable Date
Good Friday Movable Date
Eidl Fitr Movable Date
Eidl Adha Movable Date
Araw ng Kagitingan Monday nearest April 9
Labor Day Monday nearest May 1
Independence Day Monday nearest June 12
National Heroes’ Day Last Monday of August
Christmas Day December 25
Bonifacio Day Monday nearest December 30
“(b) Nationw ide Special H olidays
Ninoy Aquino Day Monday nearest August 21
All Saints Day November 1
Last Day of the Year December 31
(Principles and Cases Labor Standards and Social
Legislation, First Edition 2015, pp. 395-396, by Atty. Voltaire
T. Duano)

|^ 2 ^jB ffec^

Sec. 2, Rule 22 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the effect of interruption of time. It states that:
uSec. 2. E ffect o f Interruption. — Should an act
be done w hich effectively interrupts th e running o f th e
888 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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.”
( 2)

COMMENTS:
Q: W hat is th e rule in case o f in te rru p tio n of th e period?
A: 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.

Q: Will th e day o f th e a c t th a t cau sed th e in te rru p tio n

be excluded?
A: Yes, as mandated by the above-cited rule, the day of
the act that caused the interruption shall be excluded in the
computation of the period.
 CHA PTER XVI

MODES OF DISCOVERY AND SANCTIONS

IN CASE OF REFUSAL (RULES 23-29)

A. Basic C oncept:

Q: W hat is a m ode o f discovery?

A: It is a device to obtain information about relevant matters
on the case from the adverse party in preparation for trial.
Q: W hat is th e purpose of m odes o f discovery?
A: Modes of discovery are intended for the following
purposes, to wit:
a) It is used as a device to narrow and clarify basic
issues between the parties;
b) It is used as a device for ascertaining facts relative
to the issue of the case;
c) To obtain full knowledge of the issues and facts of
the case;
d) To avoid perjury and detection of false and fraudulent
claims and defenses;
e) To expedite the proceedings; and
f) To simplify issues of the case.
Q: W hat is th e n a tu re o f th e ap p lication of th e rules on
m odes of discovery?
A: The application of the rules on modes of discovery as
well as the determination of the sanctions to be imposed rests
upon the sound discretion of the court.
889
890 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:
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. (Lanada vs. Court of Appeals, G.R. No. 102390,
February 1, 2002, 375 SCRA 543; Limos vs. Spouses Odones,
G.R. No. 188979, August 11, 2011)
Q: W hat is th e n atu re o f th e av ailm ent of th e rem edy?
A: It is cumulative which means that in case the party has
already resorted to a particular mode of discovery it will not
bar him from resorting to other modes available.
Q: W hat are th e m odes o f discovery u n d er th e ru les?
A: The modes of discovery are enumerated under Rules 23-
28 as follows, to wit:
a) Deposition pending action (Rule 23);
b) Deposition before action or Pending Appeal (Rule
24);
c) Interrogatories to parties (Rule 25);
d) Admission by adverse party (Rule 26);
e) Production or Inspection of documents or things
(Rule 27); and
f) Physical and Mental Examination of persons. (Rule
28 )
 CHAPTER XVI 891
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

I. RULE 23: DEPOSITION PENDING ACTIONS

A. Basic C oncept.

Q: W hat is d ep osition?
A: A deposition is the testimony of a witness, put or taken
in writing, under oath or affirmation, before a commissioner,
examiner of other judicial officer, in answer to interrogatory or
cross-interrogatory, and usually subscribed by the witness.
(Ayala Land, Inc. vs. Tagle, et al, G.R. No. 153667, August 11,
2005)
Q: W hat are th e kinds o f d ep o sitio n ?
A: The kinds of deposition are as follows, to wit:
a) As to th e n atu re.
1) Deposition de bene esse — testimony of a witness or
a party pending action;
2) Deposition in perpetuam rei memoriam — testimony
of a witness or a party before action;
3) Deposition of minor child witness by videotape. (Sec.
27, AM. No. 00-4-07, effective December 15, 2000)
b) As to th e m an n er o f taking.
1) Deposition by oral examination;
2) Deposition by written interrogatories;
3) Deposition of minor child witness by videotape. (Sec.
27, A.M. No. 00-4-07, effective December 15, 2000)
Q: W hat is th e purpose o f tak in g d eposition?
A: The purpose of taking deposition as explained in the case
of People vs. Webb (312 SCRA 573 [1993)) are the following:
a) Assist the parties in ascertaining the truth and in
checking and preventing perjury;
b) Provide an effective means of detecting and exposing
false, fraudulent claims and defenses;
892 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

c) Make available in a simple, convenient and

inexpensive way, facts which otherwise could not be proved
except with greater difficulty;
d) Educate the parties in advance of trial as to the
real value of their claims and defenses thereby encouraging
settlement;
e) Expedite litigation;
f) Prevent delay;
g) Simplify and narrow down issues;
h) Expedite and facilitate both preparation and trial.

Q: Will Rule 23 on tak in g of deposition be applicable

suppletory in ch aracter in crim inal proceedings?
A: No. Rule 23 on taking of deposition is not applicable
suppletoiy in character in criminal proceedings since
deposition of a witness is primarily governed by Sec. 15, Rule
119 of the Revised Rules of Criminal Procedure.

| C ase L aw ^Jj

Even in criminal proceedings, there is no doubt as to the

availability of conditional examination of witnesses—both
for the benefit of the defense, as well as the prosecution.
However, for purposes of taking the deposition in criminal
cases, more particularly of a prosecution witness who
would foreseeably be unavailable for trial, the testimonial
examination should be made before the court, or at least
before the judge, where the case is pending as required by
the clear mandate of Section 15, Rule 119 of the Revised
Rules of Criminal Procedure. The suggested suppletory
application of Rule 23 in the testimonial examination of an
unavailable prosecution witness has been categorically ruled
out by the Supreme Court in the case of Vda. de Manguerra in
saying that criminal proceedings are primarily governed by
the Revised Rules of Criminal Procedure. (Harry L. Go, Tonny
Ngo, Jerry Ngo and Jane Go vs. The People of the Philippines
and Highdone Company, Ltd., et al., G.R. No. 185527, July
18, 2012)
 CHAPTER XVI 893
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

1. D eposition Pending Action. When May Be

T aken? (Bar Exam ination 2010);_________

Sec. 1, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the taking of deposition pending action. It states
that:
“Sec. 1. Depositions pending action, when m ay
be taken. — Upon ex p a rte m otion o f a party, the
testim on y o f any person, w hether a party or not,
m ay be taken by deposition upon oral exam ination or
written interrogatories. The attendance of w itnesses
m ay be com pelled by the use o f a subpoena as
provided in Rule 21. D epositions shall be taken only
in accordance with th e se Rules. The deposition o f a
person confined in prison may be taken only by leave
o f court on such term s as th e court prescribes.” (la)

COMMENTS:
Q: How will th e deposition of a person be tak en pending
actio n ?
A: Upon ex parte motion of a party, the testimony of any
person, whether a party or not, may be taken by deposition
upon oral examination or written interrogatories.
Q: Is th e rem edy deposition available to a non-resident
foreign corporation?
A: Yes, Rule 23, Section 1 is clear that the testimony of any
person may be taken by deposition upon oral examination or
written interrogatories at the instance of any party.

Case Law:

Utmost freedom governs the taking of depositions to

allow the widest scope in the gathering of information by and
for all parties in relation to their pending case. As regarding
the taking of depositions, Rule 23, Section 1 is clear that the
testimony of any person may be taken by deposition upon oral
examination or written interrogatories at the instance of any
894 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

party. San Luis explained that this provision does not make
any distinction or restriction as to who can avail of deposition.
Thus, the Court found it immaterial that the plaintiff was a
non-resident foreign corporation and that all its witnesses
were Americans residing in the United States. (Ingrid Sala
Santamaria and Astrid Sala Boza vs. Thomas Cleary/Kathryn
Go-Perez vs. Thomas Cleary, G.R. No. 197122/G.R. No.
197161, June 15, 2016)
Q: W hat la th e effect if dep o sitio n does n o t conform to
th e req u irem en ts o f law?
A: When a deposition does not conform to the essential
requirements of law and may reasonably cause material
injury to the adverse party, its taking should not be allowed.

Case Law:

When a deposition does not conform to the essential

requirements of law and may reasonably cause material
injury to the adverse party, its taking should not be allowed.
This was the primary concern in Northwest Airlines vs. Cruz.
In that case, the ends of justice would be better served if the
witness was to be brought to the trial court to testify. The
locus of the oral deposition therein was not within the reach
of ordinary citizens, as there were time constraints; and the
trip required a travel visa, bookings, and a substantial travel
fare. In People vs. Webb (371 Phil. 491, August 17, 1999), the
taking of depositions was unnecessary, since the trial court
had already admitted the Exhibits on which the witnesses
would have testified. (Jonathan Landoil International Co.,
Inc. vs. Spouses Suharto Mangudadatu and Miriam Sangki
Mangudadatu, G.R. No. 155010, August 16, 2004; People
vs. Webb, supra; see also Separate Opinions of Chief Justice
Davide and Justice Puno)
Q: When can a dep o sitio n o f a person be ta k e n ?
A: Depositions may be taken at any time after the institution
of any action, whenever necessary or convenient.
 CHAPTER XVI 895
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

Case Law:

Thus, “[depositions may be taken at any time after the

institution of any action, whenever necessary or convenient.
There is no rule that limits deposition-taking only to the period
of pre-trial or before it; no prohibition against the taking of
depositions after pre-trial.” (Id., p. 634, per Narvasa, C.J.)
There can be no valid objection to allowing them during the
p ro c e s s of e x e c u tin g final a n d e x e c u to ry ju d g m e n ts , w h e n th e
material issues of fact have become numerous or complicated.
(Jonathan Landoil International Co., Inc. vs. Spouses Suharto
Mangudadatu and Miriam Sangki Mangudadatu, supra, citing
East Asiatic Co., Ltd. vs. CIR, 148-B Phil. 401, 425, August 31,
1971)
Q: Can d ep o sitio n be ta k e n even a fte r tria l has
com m enced?
A: Yes, it may be taken even after trial has commenced and
may be used without the deponent being actually called to
the witness stand.

Case Law:
The Rules of Court (See Rule 134) and jurisprudence,
however, do not restrict a deposition to the sole function
of being a mode of discovery before trial. Under certain
conditions an d for certain lim ited purposes, it m ay be
ta k e n even after tria l h as com m enced and m ay be used
w ith o u t th e d ep o n en t being actually called to th e w itness
stand. In Dasmarihas Garments vs. Reyes (225 SCRA 622,
August 24, 1993), the Supreme Court allowed the taking of
the witnesses’ testimonies through deposition, in lieu of then-
actual presence at the trial. (Jonathan Landoil International
Co., Inc. vs. Spouses Suharto Mangudadatu and Miriam Sangki
Mangudadatu, supra)
Q: How to com pel th e atten d an ce of th e w itnesses
during th e tak in g o f deposition?
896 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

A: 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 with these Rules.
Q: How to ta k e th e d ep o sitio n o f a person confined in
priso n ?
A: The deposition of a person confined in prison may be
taken only by leave of court on such terms as the court
prescribes.

Samplb Form Mo. 1. E x -p a rtb M onos To T a k e D e p o b itiq m (Sec.

l t R u le 2 3 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Recovery of possession w ith Dam ages
MR. Y,
Defendant.
x -------------------------------- x
EX-PARTB MOTION TO TAKE DEPOSITION

PLAINTIFF, by counsel and to this Honorable Court,

respectfully alleges:
1. This Honorable Court h a s already acquired
jurisdiction over person of the defendant by valid service of
sum m ons upon him on J a n u a ry 12, 2020;
2. T hat p u rsu a n t to Sec. 1 of Rule 23 of the 1997 Rules
of Civil Procedure, deposition m ay be upon ex-parte after the
trial court shall have acquired jurisdiction over the person
of the defendant b u t before he files his answer.
WHEREFORE, plaintiff respectfully prays th a t he be
given leave of court to take the deposition of Mr. J u a n Dela
Cruz, with ad d ress a t ______________ , a t su ch tim e and
 CHAPTER XVI 897
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

place before a notary public, to be taken after leave of court

shall have been granted.
Such other relief and rem edies as may ju s t and equitable
u n d er the prem ises are likewise prayed for.
M anila,February 10, 2020
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/ 2-4-16/M la.
PTR NO. 8 9 3 2 9 8 1 6 /2 -2 6 -2 0 /Mia.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 247-17-57

NOTICE OF HEARING

TO: MR. Y
Defendant
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on February 20, 2020,
a t 2:00 p.m.
FERDINAND A. TAN

CC: MR. Y
Defendant
#41 Dapitan Street
Sampaloc, Manila
EXPLANATION OF SERVICE

Copy of the Motion for Leave of Court to take deposition

was served to the defendant by registered mail due to time
and distance constraints, and for lack of the undersigned’s
staff who can serve the sam e in person.
FERDINAND A. TAN
898 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Scope o f E xam ination:

Sec. 2, Rule 23 of th e 2 0 1 9 A m endm ents to th e 1997

R ules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the scope of the examination during the taking of
deposition. It states that:
wSec. 2. Scope o f deposition. — U nless otherw ise
ordered by th e court as provided by S ection 16 or
18 o f th is Rule, th e deponent m ay be exam ined
regarding any m atter, not privileged, w hich is
relevant to th e subject o f th e pending action, w hether
relating to th e claim or d efen se o f any other party,
including th e e x iste n c e, description, nature, custod y,
con d ition , and location o f any books, docum ents, or
other tangible thin gs and th e id en tity and location o f
persons having know ledge o f relevant fa cts.” (2)

COMMENTS:
Q: W hat is th e scope o f th e ex am in atio n of th e d ep o n en t?
A: Unless otherwise ordered by the court as provided by
Section 16 or 18 of this Rule, the deponent may be examined
regarding:
1) Any matter which is not privileged:
2) Matter 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.

Q: W hat are th e lim itatio n s on th e tak in g of dep o sitio n ?

A: The limitations are, If the examination is conducted in
bad faith; or to annoy, embarrass, or oppress the person who
is the subject of the inquiry; or when the inquiry touches upon
the irrelevant or encroaches upon the recognized domains of
privilege.
 CHAPTER XVI 899
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

I^CM e^Law jJ

Limitations would arise, though, if the examination is

conducted in bad faith; or in such a manner as to annoy,
embarrass, or oppress the person who is the subject of the
inquiry; or when the inquiry touches upon the irrelevant
or encroaches upon the recognized domains of privilege.
(Jonathan Landoil International Co., Inc. vs. Spouses Suharto
Mangudadatu and Miriam Sangki Mangudadatu, supra, citing
East Asiatic Co., Ltd. vs. CIR, 148-B Phil. 401, 425, August 31,
1971)

Sec. 3, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on examination and cross-examination of the
deponent. It states that:
“Sec. 3. Exam ination a n d cross-exam ination.
— Exam ination and cross- exam ination o f deponents
m ay proceed as perm itted at the trial under S ection s
3 to 18 o f Rule 132.” (3)

COMMENTS:
Q: How will th e ex am ination o f th e d ep o n en t be m ade?
A: Examination and cross-examination of deponents may
proceed as permitted at the trial under Sections 3 to 18 of
Rule 132.
Q: W hat are th e m a tte rs covered by S ections 3-18 of
Rule 132 for purposes o f tak in g o f d ep osition?
A: Sections 3-18 of the Revised Rules on Evidence covers
the following, to wit:
a) Rights and obligations of a witness (Sec. 3);
b) Order of examination of an individual witness (Sec. 4);
c) Direct examination (Sec. 5);
900 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

d) Cross-examination (Sec. 6);

e) Re-direct examination (Sec. 7);
f) Re-cross examination (Sec. 8);
g) Recalling witness (Sec. 9);
h) Leading and misleading questions (Sec. 10);
i) Impeachment of adverse party’s witness (Sec. 11);
j) Party may not impeach his own witness (Sec. 12);
k) How witness was impeached by evidence of
inconsistent statements (Sec. 13);
l) Evidence of good character of a witness (Sec. 14);
m) Exclusions and separation of witnesses (Sec. 15);
n) When a witness may refer to memorandum (Sec. 16);
o) When part of transaction, writing or record given in
evidence, the remainder admissible (Sec. 17); and
p) Right to inspect writing shown to witness (Sec. 18).

4. Use o f D eposition (Bar Exam ination):

Sec. 4, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on use of deposition. It states that:
“Sec. 4 . Use o f deposition s. — At th e trial or
upon th e hearing o f a m otion or an interlocutory
proceeding, any part or all o f a deposition, so far as
adm issible under th e rules o f evid en ce, m ay be used
against any party who was present or represented at
th e taking o f th e deposition or who had due n otice
thereof, in accordance w ith any one o f th e following
provisions:
(a) Any deposition m ay be used by any party
for th e purpose o f contradicting or im peaching th e
testim o n y o f th e deponent as a w itness;
(b) The deposition o f a party or o f any one who
at th e tim e o f taking th e deposition was an officer.
 CHAPTER XVI 901
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
director, or m anaging agent o f a public or private
corporation, partnership, or association w hich is a
party m ay be used by an adverse party for any purpose;
(c) The dep osition o f a w itn ess, w hether or n o t a
party, m ay be used by any party for any purpose if th e
court finds: (1) th at th e w itn ess is dead; or (2) th at th e
w itn ess resides at a distan ce m ore than one hundred
(100) kilom eters from th e place o f trial or hearing, or
is ou t o f th e Philippines, u n less it appears th at h is
or her absence was procured by th e party offering
th e deposition; or (3) th at th e w itn ess is unable to
atten d or testify because o f age, sick n ess, infirm ity,
or im prisonm ent; or (4) th at th e party offering th e
d eposition has been unable to procure th e attendan ce
o f th e w itn ess by subpoena; or (5) upon application
and n o tice, th at such excep tional circum stances
e x ist as to m ake it desirable, in th e in terest o f ju stice
and w ith due regard to th e im portance o f presenting
th e testim o n y o f w itn esses orally in open court, to
allow th e deposition to be used; and
(d) If only part o f a deposition is offered in
evid en ce by a party, th e adverse party m ay require
him or her to Introduce all o f it w hich is relevant to
th e part introduced, and any party m ay introduce any
other parts.” (4a)

COMMENTS:
Q: W hat is th e use o f d ep o sitio n ?
A: 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
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;
902 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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;
(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 witness 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. (4a)

Q: May a d eposition be u sed even w ith o u t th e deponent

being placed on th e w itn ess sta n d ?
A: Depositions may be used without the deponent being
actually called to the witness stand by the proponent, under
certain conditions and for certain limited purposes.

Case Law:

On the use of depositions taken, the court referred

to Rule 23, Sec. 4 of the Rules of Court. The Court held
that “depositions may be used without the deponent being
actually called to the witness stand by the proponent, under
certain conditions and for certain limited purposes.” These
exceptional cases are enumerated in Rule 23, Sec. 4(c).
 CHAPTER XVI 903
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
The difference between the taking of depositions and
the use of depositions taken is apparent in Rule 23, which
provides separate sections to govern them. The utmost
freedom is allowed in taking depositions; restrictions are
imposed upon their use. As a result, there is accorded the
widest possible opportunity for knowledge by both parties
of all the facts before the trial. The deposition serves the
double function of a method of discovery—with use on trial
not necessarily contemplated— and a method of presenting
testimony. (Ingrid Sala Santamaria and Astrid Sala Boza vs.
Thomas Cleary/Kathryn Go-Perez vs. Thomas Cleary, G.R.
No. 197122/G.R. No. 197161, June 15, 2016)
Q: Can a dep o sitio n be a s u b stitu te for th e actu al
testim o n y o f th e w itn ess?
A: No. While deposition may be used as evidence in court
proceedings, they are generally not meant to be a substitute
for the actual testimony in open court of a party or witness.

Case Law:

While deposition may be used as evidence in court

proceedings, they are generally not meant to be a substitute
for the actual testimony in open court of a party or witness.
Stated differently, a deposition is not to be used when the
deponent is at hand. Indeed, any deposition offered during
trial to prove the facts stated therein set out, in lieu of actual
oral testimony of the deponent in court, may be opposed
and excluded on the ground of hearsay evidence. However,
depositions may be used without the deponent being called
to the witness stand by the proponent, provided the existence
of certain conditions is first satisfactorily established. Five
exceptions for the admissibility of a deposition are listed in
Sec. 4. (Sales vs. Sabino, G.R. No. 133154, December 9, 2005)
Q: May a d ep o sitio n o f a perso n deceased or unbale to
te stify be u sed as evidence w ith o u t violating hearsay
evidence ru le?
A: Yes, under Section 49, Rule 130 provides that, the
testimony or deposition of a witness deceased or unable to
testify, given in a former proceeding, judicial or administrative,
904 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

involving the same parties and subject matter, may be given in

evidence against the adverse party who had the opportunity
to cross-examine him.

P rocedural Basis:

Sec. 49, Rule 130 o f th e 2 0 1 9 A m endm ents to

th e Revised R ules on Evidence (A.M. No. 19-08-15-SC)
provides for the exception to the hearsay evidence rule in case
of testimony or deposition at a former proceeding. It states
that:
“Sec. 4 7 . Testim ony or deposition a t a fo rm er
proceeding. — The testim o n y or dep osition o f a
w itn ess d eceased or unable to testify , given in
a former proceeding, judicial or adm inistrative,
involving th e sam e parties and subject m atter, m ay
be given in evid en ce against th e adverse party who
had th e opportunity to cross-exam ine h im .”

5. Effect o f S u b stitu tio n of Parties:

Sec. 5, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the effect of substitution of parties on the use of
deposition . It states that:
“Sec. 5. E ffect o f su b stitu tio n o f p a rtie s. —
S u b stitu tion o f parties d oes n ot affect th e right to u se
d ep osition s previously taken; and, w hen an action
has been dism issed and another action involving
th e sam e subject is afterward brought betw een th e
sam e parties or their representatives or su ccessors in
in terest, all dep osition s lawfully taken and duly filed
in th e form er action m ay be used in th e latter as if
originally taken therefor.” (5)

COMMENTS:
Q: W hat is th e effect of s u b stitu tio n of p a rtie s on th e
d epositio n ta k e n ?
A: Substitution of parties does not affect the right to use
depositions previously taken.
 CHAPTER XVI 905
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
Q: Can a dep o sitio n be u sed in a n o th e r actio n ?
A: Yes, 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.

| 6. Objection8^o^A dm issibilityi~j|

Sec. 6, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on objection to admissibility of deposition as evidence.
It states that:
MSec. 6 . Objection to a d m issibility. — Subject to
th e provisions o f S ection 29 o f th is Rule, objections
m ay be m ade at th e trial or hearing to receiving in
evid en ce any deposition or part th ereo f for any reason
w hich would require th e exclu sion o f th e evid en ce if
th e w itn ess were th en present and testify in g .” (6)

COMMENTS:
Q: When to m ake objection on th e adm issibility of
deposition as evidence?
A: Subject to the provisions of Section 29 of this Rule,
objections 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.

D e p o s itio n J

Sec. 7, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the effect of taking deposition. It states that:
“Sec. 7. E ffect o f ta k in g deposition. — A party
shall n ot be deem ed to m ake a person h is or her
own w itn ess for any purpose by taking h is or her
dep osition .” (7a)
906 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e effect o f th e tak in g of d eposition o f a
perso n ?
A: A party shall not be deemed to make a person his or her
own witness for any purpose by taking his or her deposition.

8. Effect o f Using D eposition:

Sec. 8, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules o n Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the effect of using deposition. It states that:
“Sec. 8. E ffect o f using deposition. — The
introdu ction in evid en ce o f th e d eposition or any
part th ereo f for any purpose other than th a t o f
contrad icting or im peaching th e deponent m akes
th e deponent th e w itn ess o f th e party introducing
th e d ep osition, but th is sh all n o t apply to th e use
by an adverse party o f a dep osition as described in
paragraph (b) o f S ectio n 4 o f th is Rule.” (8)

COMMENTS:
Q: W hat is th e effect o f in tro d u cin g th e deposition as
evidence?
A: 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.

9. R eb u ttin g D eposition:

Sec. 9, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on rebutting deposition. It states that:
“Sec. 9 . R ebutting deposition. — At th e trial or
hearing, any party m ay rebut any relevant evid en ce
 CHAPTER XVI 907
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
contained in a deposition whether introduced by him
or her or by any other party.” (9a)

COMMENTS:
Q: Can a p arty reb u t th e evidence contained in th e
deposition?
A: Yes, as expressly mandated by the above-cited rule that,
at the trial or hearing, any party may rebut any relevant
evidence contained in a deposition whether introduced by
him or her or by any other party.

10. Persons Before Whom D eposition May Be Taken

W ithin th e Philippines:

Sec. 10, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on person who may take deposition. It states that:
“Sec. 10. Persons before whom depositions
m ay be taken w ithin th e Philippines. — Within the
Philippines, depositions m ay be taken before any
judge, notary public, or th e person referred to in
Section 14 hereof.” (10)

COMMENTS:
Q: Who m ay tak e th e deposition o f a person?
A: Within the Philippines, depositions may be taken before:
1) Any judge;
2) Notary public; or
3) The person referred to in Section 14 hereof.

Q: Who are th e o th e r person who can tak e deposition

u n d er Sec. 14?
A: If the parties so stipulate in writing, depositions may be
taken before any person authorized to administer oaths.
908 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

11. Persons Before Whom D eposition May Be Taken

in Foreign C ountries:

Sec. 11, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the persons who may take deposition abroad. It
states that:
“Sec. 11. P e r s o n s b e f o r e w h o m d e p o s i t i o n m a y
be taken in foreign countries. — In a foreign sta te or
country, d ep ositions m ay be taken (a) on n otice before
a secretary o f em bassy or legation, consul general,
consul, vice-con sul, or consular agent o f th e Republic
o f th e Philippines; (b) before su ch person or officer
as m ay be appointed by com m ission or under letters
rogatory; or (c) th e person referred to in S ection 14
hereof.” (11)

COMMENTS:
Q: Who m ay tak e d eposition of a person abroad?
A: In a foreign state or country, depositions may be taken
by:
(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.

12. Com m ission or L etters Rogatory:

Sec. 12, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on issuance of letters rogatory or commission. It
states that:
“Sec. 12. Commission or letters rogatory. — A
com m ission or letters rogatory shall be issu ed only
when necessary or con ven ien t, on application and
 CHAPTER XVI 909
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
n o tice, and on such term s and w ith such direction as
are ju st and appropriate. Officers m ay be d esignated in
n o tic e s or com m ission s eith er by nam e or descriptive
title and letters rogatory m ay be addressed to th e
appropriate judicial authority in th e foreign country.”
( 12)

COMMENTS:
Q: W hen will a le tte r rogatory o r com m ission be issued?
A: A commission or letters rogatory shall be issued only:
1) When necessary or convenient;
2) On application and notice; and
3) On such terms and with such direction as are just
and appropriate.
Q: W hat is a le tte r com m ission?
A: 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.
Q: W hat is a le tte r rogatory?
A: 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 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. (Ballentine’s Law Dictionary, 2nd ed.,
p. 744)
Q: D istin ctio n s betw een le tte r com m ission and le tte r
rogatory?

Letter C om m ission Letter Rogatory

a) Letter com m ission — is a) Letter rogatory — is an

an in stru m en t issued by
a court of justice, or other
com petent tribunal to a u ­
thorize a person to take de­
positions, or do any other
in stru m en t whereby a for­
eign court is inform ed of
the pendency of a case and
the nam e of the foreign
w itness, a n d is requested
910 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

act by authority of such to cause their depositions

court or tribunal. to be taken in due course
of law for the furtherance of
justice, with a n offer on the
p art of the court m aking the
request, to do the like for
the other, in a sim ilar case.
b) Letter com m ission is b) In letter rogatory, it is
addressed to a non-judicial addressed to a judicial officer
foreign officer who will take of a foreign country who
the deposition. will direct the taking of the
deposition.
c) In letter com m ission, the c) In letter rogatory, the
rules which are applicable procedure applicable will
are those of th e requesting th a t be of the foreign court.
court.
d) In letter com m ission, it is d) In letter rogatory, it is
allowed if the perm ission of allowed if comm ission was
the foreign country is given. disallowed by the foreign
country.
e) Lastly, in com m ission e) In letter rogatory, leave of
leave of court is not court is necessary.
necessary.

Q: W hat are th e d istin ctio n s betw een deposition and

affidavit?
A: Deposition and affidavit may be distinguished as follows,
to w it:

D eposition Affidavit
a) In deposition, taking of the a) In affidavit, it may be ta k ­
* testim ony requires notice en ex parte.
to the other party.
b) In deposition, it m ay be b) Affidavit being ex parte
taken in the form of a q u es­ need not be in such form.
tion and answ er based on
oral exam ination or w ritten
interrogatories before a u ­
thorized persons.
c) D eposition may be used as c) Affidavit may or m ay not
evidence in a pending case. be used in a proceeding.
 CHAPTER XVI 911
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

Q: How to d esig n ate th e officers in th e com m ission?

A: Officers may be designated in notices or commissions
either by name or descriptive title.

Q: To w hom le tte rs rogatory be ad d ressed?

A: Letters rogatory may be addressed to the appropriate
judicial authority in the foreign country.

S a m p le F o r m Wo . 2; P e t i t i o h F o r I m p a h c e Or L e t t e r s R o g a t o r y
(S e c. 1 2 , R u le 2 3 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASEN O .__________
For: Recovery of possession
with Damages
MR. Y,
Defendant,
x _________________ x

PETITION FOR ISSUANCE OF LETTER ROGATORY

COMES NOW, plaintiff, by counsel and to this Honorable
C ourt respectfully alleges:
1. That for the purpose of completing plaintiffs
evidence, so th a t a ju s t an d fair decision m ay be rendered
in the in sta n t case, it is proper and necessary th a t the
testim ony of J u a n Dela Cruz, who is a t p resent residing
in the United S tates a t New Jersey, U.S.A., be taken by
m eans of deposition upon w ritten interrogatories, attached
herew ith as Annex “A”, a t the Philippine C onsulate a t its
offices in 42nd Street, New York, U.S. before any Philippine
C onsular representative thereat, a t such date and time as
the latter m ay fix.
912 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

2. That if the adverse party desires, he may serve

cross-interrogatories to be filed in court, so th at the direct
interrogatories and cross-interrogatories may both be sent
to the Philippine Consulate a t the above-indicated address.
WHEREFORE plaintiff respectfully prays th a t an order
issue directing the adverse party, the defendant, to subm it
his written cross-interrogatories within ten (10) days from
notice, requiring the clerk of court to issue letters rogatory
directed to the Philippine consular r e p r e s e n ta t iv e in th e
Philippine C onsular Office a t _______ U.S.A. to take the
exam ination 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 testily therein; and thereafter,
to subm it the record of deposition to the Court which issued
this order, with notice to both parties.
Such other relief and remedies ju s t and equitable under
the prem ises are likewise prayed for.
Manila, Ja n u ary 20, 2020.

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Ermita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 892398167/2-36-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 217-17-57

NOTICE OF HEARING

TO: MR. Y
Defendant
 CHAPTER XVI 913
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on J a n u a r y _2020, at
2:00 p.m.
FERDINAND A. TAN
CC: MR. Y
Defendant
#41 Dapitan Street
Sampaloc, Manila

EXPLANATION OF SERVICE

Copy of the Petition for issuance of a letter rogatory was

served to the defendant by registered mail due to time and
distance constraints, and for lack of the undersigned’s staff
who can serve the sam e in person.

FERDINAND A. TAN

----- — a ,-T :■■■ ■ ■ 1 =

13. D isqualification by In te rest:

.....S ■""—
I i ! ...------------ —

Sec. 13, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on disqualified persons to take deposition. It states
that:
“Sec. 13. D isqualification by interest. — No
deposition shall be taken before a person who is a
relative w ithin th e sixth degree o f consanguinity
or affinity, or em ployee or cou n sel o f any o f th e
parties; or who is a relative w ithin th e sam e degree,
or em ployee o f such counsel; or who is financially
interested in th e actio n .” (13)

COMMENTS:
Q: Who are disqualified to tak e d ep osition?
A: No deposition shall be taken before a person who is:
914 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1) A relative within the sixth degree of consanguinity

or affinity;
2) Employee or counsel of any of the parties;
3) Person who is a relative within the same degree;
4) Employee of such counsel; or
5) Person who is financially interested in the action.

14. S tipulations Regarding Taking o f Deposition:

Sec. 14, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on stipulation regarding the taking of deposition. It
states that:
“Sec. 14. Stipu lation s regarding taking o f
depositions. — If th e parties so stipulate in writing,
depositions may be taken before any person
authorized to adm inister oaths, at any tim e or place,
in accordance with th e se Rules, and w hen so taken
m ay be used like other d ep ositions.” (14)

COMMENTS:
Q: Who m ay tak e deposition by stip u latio n ?
A: 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.

15. D eposition by Oral Exam ination, Notice,

Time and Place:

Sec. 15, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on deposition upon oral examination. It states that:
“Sec. 15. Deposition upon oral exam ination;
notice; tim e and place. — A party desiring to take the
 CHAPTER XVI 915
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
deposition o f any person upon oral exam ination shall
give reasonable n otice in writing to every other party
to th e action. The n o tice shall sta te th e tim e and place
for taking th e deposition and th e nam e and address
o f each person to be exam ined, if known, and if th e
nam e is n ot known, a general description su fficien t to
identify him or her or th e particular class or group to
w hich he or sh e belongs. On m otion o f any party upon
whom th e n otice is served, th e court m ay for cause
shown enlarge or shorten th e tim e .’* (15a)

COMMENTS:
Q: How to ta k e deposition o f a person upon oral exam i­
n atio n ?
A: A party desiring to take the deposition of any person
upon oral examination shall:
1) Give reasonable notice in writing to every other
party to the action.
2) 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.
Q: Can th e co u rt modify th e tim e o f tak in g of deposition?
A: Yes, as expressly provided by the above-cited rule that,
on motion of any party upon whom the notice is served, the
court may for cause shown enlarge or shorten the time.
S a m p le F o r m Wo. 1: N o t i c e To T a k e D e p o s i tio n U p o n O r a l
E sammauqh ( S e c . 1 5 . R u le 2 3 )

Atty. H ector A. Yulo

Counsel for defendant/plaintiff
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
Sir:
Please take notice th a t on J a n u a ry 20, 2020, the
undersigned counsel for Mr. X in Civil Case No. ______ ,
916 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

entitled Mr. X v». Mr. Y, RTC, Manila, will take the

deposition of Mr. J u a n Dela Cruz, with address a t 1136-
A A. Maceda St., Sampaloc, Manila, before Notary Public
Gerardo F. Lara a t the latter’s address a t 1080 Taft Avenue,
Malate Manila at 10:00 am, upon oral examination. The oral
examination will continue from day to day a t the sam e time
and place until the oral exam ination is completed.
Manila, Ja n u a ry 15, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Ermita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 892398167/2-36-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel. No. 217-17-57

YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
2) Mr. Juan Dela Crux
Defendant
#41 Dapitan Street
Sampaloc, Manila
3) ATTY. GERARDO F. LARA
No. 1080 Taft Avenue, Malate Manila

EXPLANATION OF SERVICE
Copy of the Notice to take deposition upon oral
examination was served to the defendant by registered mail
due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the sam e in person.

FERDINAND A. TAN
 CHAPTER XVI 917
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

U 16. O rders for th e P rotection of P arties and Deponents:

11
Sec. 16, Rule 23 of th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the issuance of orders for the protection of parties
and deponents. It states that:
uSec. 16. Orders fo r the protection o f p a rtie s
and deponents. — After notice is served for taking
a deposition by oral exam ination, upon m otion
seasonably made by any party or by th e person to
be exam ined and for good cause shown, th e court in
which th e action is pending m ay make th e following
orders:
(a) That the deposition shall not be taken;
(b) That the deposition m ay be taken only at
som e designated place other than that stated in the
notice;
(c) That the deposition may be taken only on
written interrogatories;
(d) That certain m atters shall not be inquired
into;
(e) That the scope of th e exam ination shall be
held with no one present excep t th e parties to the
action and their officers or counsel;
(f) That after being sealed th e deposition shall
be opened only by order of th e court;
(g) That secret processes, developm ents, or
research need not be disclosed; or
(h) That th e parties shall sim ultaneously file
specified docum ents or inform ation enclosed in sealed
envelopes to be opened as directed by th e court.
The court may make any other order which
ju stice requires to protect th e party or w itness from
annoyance, embarrassment, or oppression.” (16a)
918 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: What are th e orders which can be issued by th e court
for th e taking of deposition upon oral exam ination?
A: 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
orders:
(a) That the deposition shall not be taken;
(b) That the deposition may be taken only at some
designated place other than that stated in the notice;
(c) That the deposition 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; or
(h) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes to be
opened as directed by the court.
Q: What are th e requisites for th e issuance of a protection
order?
A: The requisites for the issuance of a protection order are,
there m ust be notice; and the order m ust be for good cause
shown.

Case Law:
Accordingly, no limitations other than relevancy and
privilege have been placed on the taking of depositions, while
 CHAPTER XVI 919
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
the use at the trial is subject to circumscriptions looking
toward the use of oral testimony wherever practicable.
Rule 23, Section 16 of the Rules of Court is on orders
for the protection of parties and deponents from annoyance,
embarrassment, or oppression. The provision includes a
full range of protective orders, from designating the place
of deposition, limiting those in attendance, to imposing that
it be taken through written interrogatories. At the extreme
end of this spectrum would be a court order that completely
denies the right to take deposition. This is what the trial court
issued in this case. While Section 16 grants the courts power
to issue protective orders, this grant involves discretion on the
part of the court, which “must be exercised, not arbitrarily,
capriciously or oppressively, but in a reasonable manner and
in consonance with the spirit of the law, to the end that its
purpose may be attained.” A plain reading of this provision
shows that there are two (2) requisites before a court may
issue a protective order: (1) there must be notice; and (2) the
order must be for good cause shown.
Jurisprudence has discussed how under the concept
adopted by the new Rules, the deposition serves the double
function of a method of discovery—with use on trial not
necessarily contemplated—and a method of presenting
testimony. The taking of depositions has been allowed as
a departure from open-court testimony. Rule 23, Section 1
of the Rules of Court gives utmost freedom in the taking of
depositions. Section 16 on protection orders, which include
an order that deposition not be taken, may only be issued
after notice and for good cause shown. However, petitioners’
arguments in support of the trial court’s Order denying the
taking of deposition fails to convince as good cause shown.
(Ingrid Sala Santamaria and Astrid Sala Boza vs. Thomas
Cleary/Kathryn Go-Perez vs. Thomas Cleary, G.R. No.
197122/G.R. No. 197161, June 15, 2016)

Q: What other order which the court may issue?

A: The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression.
920 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

17. Record of Examination; Oath; Objections:

Sec. 17, Rule 23 of the 2019 Am endments to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on manner of taking deposition. It states that:
"See. 17. Record o f exam ination; oath;
objections. — The officer before whom th e deposition
is to be taken shall put th e w itn ess on oath and
shall personally, or by som eon e acting under his
or her direction and in h is or her presence, record
th e testim o n y o f th e w itn ess. The testim o n y shall
be taken stenographically u n less th e parties agree
otherw ise. All objections m ade at th e tim e o f th e
exam ination to th e qualifications o f th e officer taking
th e deposition, or to th e m anner o f taking it, or to the
evid en ce presented, or to th e conduct o f any party,
and any other objection to th e proceedings, shall be
n oted by th e officer upon th e deposition. Evidence
objected to shall be tak en subject to th e objections.
In lieu o f participating in th e oral exam ination,
parties served w ith n o tice of taking a d eposition may
transm it w ritten interrogatories to th e officers, who
shall propound them to th e w itn ess and record th e
answers verbatim .” (17a)

COMMENTS:

Q: What are the procedures to be undertaken by

the officer during th e taking of deposition by oral
exam ination?
A: The officer before whom the deposition is to be taken
shall perform the following:
1) Put the witness on oath and shall personally, or by
someone acting under his or her direction and in his or her
presence;
2) Record the testimony of the witness;
3) The testimony shall be taken stenographically,
unless the parties agree otherwise.
 CHAPTER XVI 921
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
Q: What is th e rule on objections raised by the party
during the proceedings?
A: All objections made at the time of the examination shall
be noted by the officer upon the deposition as regards the
following matters, to wit:
1) As to the qualifications of the officer taking the
deposition; or
2) As to th e m a n n e r o f ta k in g it; or
3) As to the evidence presented; or to
4) As regards the conduct of any party; and
5) Any other objection to the proceedings.
Q: May the evidence objected to during the proceedings
be adm itted?
A: Yes, as mandated by the above rule, evidence objected to
shall be taken subject to the objections.
Q: What is th e option of the parties served with notice
but do not want to participate in th e oral exam ination?
A: 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.
Sample F orm Wo . 4: R ecord Of Dkpositiqh.

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
CIVIL CASE N O .______________
- versus -
For: Recovery of possession with Damages
922 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MR. Y,
Defendant,
x __________________ x

DEPOSITION OF JUAN DELA CRUZ

Records of the deposition upon oral examination (upon

written interrogatories, as the case m ay be). Taken before
Notary Public Atty. Gerardo F. Lara for and in the City of
Manila, Philippines, this 20th day of Ja n u a ry 2020 a t 10:00
a.m., p u rsu a n t to the attached notice to take deposition on
behalf of plaintiff (or defendant, as the case may be) in the
above-entitled action.
Appearances:
(Copy)
Testimonies:
J u a n Dela Cruz, after having been duly sworn, testified
orally (or based upon written interrogatories) as follows:
Direct examination:
(Copy)
Cross-examination.
(Copy)
Re-direct examination:
(Copy)
The above deposition was signed by _____ who gave
said deposition, and the sam e is hereby certified by the
undersigned notary public to be faithful reproduction
thereof.
NOTARY PUBLIC
CERTIFICATION
REPUBLIC OF THE PHILIPPINES)
CITY OF MANILA ) S.S.
The undersigned, notary public for and in th e City o f
Manila, Philippines, hereby certifies th a t w itn e ss____ was
duly sworn to by the undersigned before taking the above
deposition and th at the deposition and the record thereof of
w itn e ss___ , as above-stated, are true and correct.
 CHAPTER XVI 923
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

Manila, Ja n u a ry 20, 2020.

Notary Public
Until Dec. 31,
CC: 1) YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
2) Mr. Juan Dela Cruz
Defendant
#41 Dapitan Street
Sampaloc, Manila
3) ATTY. GERARDO F. LARA
NO. 1080 Taft Avenue, Malate, Manila

18. Motion to Term inate or Limit Examination:

Sec. 18, Rule 23 of th e 2019 Amendments to the

1997 Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on motion to terminate or limit the taking of
deposition. It states that:
“Sec. 18. Motion to term inate or lim it
exam ination. — At any tim e during th e taking of
th e deposition, on m otion or petition o f any party
or o f th e deponent and upon a showing that th e
exam ination is being conducted in bad faith or in
such m anner as unreasonably to annoy, embarrass,
or oppress th e deponent or party, the court in which
th e action is pending or th e Regional Trial Court of
th e place where the deposition is being taken may
order th e officer conducting th e exam ination to cease
forthwith from taking the deposition, or m ay lim it
th e scope and manner o f th e taking of th e deposition,
as provided in Section 16 o f th is Rule. If th e order
made term inates th e exam ination, it shall be resumed
thereafter only upon th e order o f th e court in which
th e action is pending. Upon demand o f th e objecting
party or deponent, th e taking o f th e deposition shall
924 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

be suspended for th e tim e necessary to m ake a n otice

for an order. In granting or refusing such order, th e
court may Impose upon either party or upon th e
w itn ess th e requirem ent to pay such co sts or expenses
as th e court m ay deem reasonable.” (18)

COMMENTS:
Q: When may th e court order to term inate or lim it the
ta k in g o f d e p o s itio n ?
A: At any time during the taking of the deposition, on
motion or petition of any party or of the deponent, 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 upon a showing that:
1) The examination is being conducted in bad faith; or
2) The examination is being conducted in such
manner as unreasonably to annoy, embarrass, or oppress
the deponent or party.

Q: When can th e taking of deposition be resum ed?

A: 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.
Q: Can the taking of deposition be suspended?
A: Yes, 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.

Q: What are th e sanctions th a t th e court may impose

upon th e party?
A: 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.
 CHAPTER XVI 925
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
S a m p le F o r m W o. 5 : M o ti o n T o T e r m i n a t e T a k i h q O f P b p o m tio h
(S ec , 1 8 , R m g _ 2 3 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _____
MR. X,
Plaintiff,
CIVIL CASE N O ._____________
- versus -
For: Recovery of possession with Damages
MR. Y,
Defendant,
x -----------------------------x

MOTION TO TERMINATE TAKING OF DEPOSITION

COMES NOW, plaintiff, by counsel and to this Honorable
Court, m ost respectfully alleges:
1. That the deposition of the J u a n Dela Cruz is now
being taken before a Notary Public Atty. Gemylito L. Festin
at #818 Remedios Street, Malate, Manila;
2. That during the taking of the deposition counsel
for the defendant profounded questions which are not only
imm aterial, baseless but tending to harass and merely to
disrepute said deponent which h as no relation to the facts
in issue to the case, and p u rsu a n t to Sec. 18 of Rule 23
of the 1997 Rules of Civil Procedure, deposition may be
ordered term inated by the Honorable Court.
WHEREFORE, plaintiff respectfully prays th at the
taking of the deposition of J u a n Dela Cruz be term inated
based on the above reasons.
Such other relief and remedies as may be ju s t and
equitable under the prem ises are likewise prayed for.
Manila, Ja n u ary 22, 2020
926 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 0 1 4 510/2-4-16
PTR NO. 8 9 2 3 9 8 167/2-36-20/M la.
Roll No. 38488
MCLE Exem ption No. VI 002142
NOTICE OF HEARING

TO: ATTY. HECTOR A. YULO

Defendant
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on J a n u a r y _2020, a t
2:00 p.m.

FERDINAND A. TAN

CC: 1) YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OF SERVICE

Copy of the Motion to term inate the taking of deposition

w as served to the defendant by registered mail due to time
and distance constraints, an d for lack of the undersigned’s
staff who can serve the sam e in person.
FERDINAND A. TAN
 CHAPTER XVI 927
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

19. Subm ission to W itness; Changing; Signing:

Sec. 19, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on submission to the witness, changes and signing
of deposition. It states that:
“Sec. 19. Subm ission to witness; changes;
signing. — When th e testim on y is fully transcribed,
th e deposition shall be subm itted to th e w itn ess for
exam ination and shall be read to or by him or her,
u n less such exam ination and reading are waived by
th e w itness and by th e parties. Any changes in form
or substance w hich th e w itn ess desires to m ake shall
be entered upon th e deposition by th e officer with
a statem en t o f th e reasons given by th e w itn ess for
m aking them . The deposition shall then be signed by
th e w itn ess, unless th e parties by stipulation waive
th e signing or th e w itn ess is ill or cannot be found
or refhses to sign. If th e deposition is not signed
by th e w itn ess, th e officer shall sign it and sta te on
th e record th e fact o f th e waiver or o f th e illn ess or
absence o f th e w itn ess or the fact o f th e refusal to sign
together with th e reason given therefor, if any, and
th e deposition m ay th en be used as fully as though
signed, u n less on a m otion to suppress under Section
29(f) o f th is Rule, th e court holds that th e reasons
given for the refusal to sign require rejection o f the
deposition in whole or in part.” (19a)
COMMENTS:
Q: W hat are th e d u ties o f th e officer after th e testim o n y
is fully tran scrib ed ?
A: When the testimony is fully transcribed, the deposition
shall be:
1) Submitted to the witness for examination; and
2) It shall be read to or by him or her, unless such
examination and reading are waived by the witness and by
the parties.
928 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: How will th e changes in form or su b stan ce in th e

te stim o n y be m ade?
A: 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.

Q: W hat is th e rule on th e signing o f d eposition?

A: 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.

Q: W hat is th e rule to be observed in case th e deposition

is n o t signed by th e w itn ess?
A: 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 given therefor, if any, and the
deposition may then be used as fully as though signed.
Q: Can th e unsigned d ep o sitio n be rejected by th e
co u rt?
A: 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.

20. C ertificatio n and Filing by Officer:

a
Sec. 20, Rule 23 o f th e 2019 A m endm ents to th e 1997
Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the certification and filing of the deposition. It
states that:
“Sec. 2 0 . C ertification a n d filin g by officer. —
The officer shall certify on th e deposition th at th e
w itn ess was duly sworn to by him or her and th at th e
 CHAPTER XVI 929
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
deposition is a true record o f th e testim on y given by
the w itness. He or she shall then securely seal the
deposition in an envelope indorsed with th e title o f
the action and marked “D eposition o f (here insert the
nam e o f w itness)” and shall promptly file it with the
court in w hich th e action is pending or send it by reg­
istered mail to the clerk thereof for filing.” (20a)

COMMENTS:
Q: W hat are th e duties of th e officer after th e taking of
deposition?
A: The officer after the completion of the taking of the
testimony of the witness, shall:
1) 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;
2) 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
3) He 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.

21. Notice o f Filing:

Sec. 21, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the notice of filing of deposition. It states that:
“Sec. 21. Notice o f filin g. — The officer taking
th e deposition shall give prompt n otice o f its filing to
all the parties.” (21)
COMMENTS:
Q: What is th e duty of th e officer after th e filing of th e
deposition?
A: The officer taking the deposition shall give prompt notice
of its filing to all the parties.
930 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

22. F urnishing Copies:

Sec. 22, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on furnishing of copy of deposition. It states that:
“Sec. 2 2 . Furnishing copies. — Upon paym ent
o f reasonable charges therefor, th e officer shall
furnish a copy o f th e deposition to any party or to th e
deponent.” (22)

COMMENTS:
Q: When to furnish copy o f th e deposition to th e p arty
or dep o n en t?
A: Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to the
deponent.

23. Failure to A ttend of P arty Giving Notice:

Sec. 23, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the failure of the party to attend in the taking of
deposition who give notice. It states that:
“Sec. 23. Failure to a tte n d o f p a r ty giving
notice. — If th e party giving th e n otice o f the taking
o f a deposition fails to attend and proceed therew ith
and another attends in person or by counsel pursuant
to th e n o tice, the court m ay order th e party giving
th e n otice to pay such other party th e am ount o f th e
reasonable exp en ses incurred by him or her and his
or her counsel in so attending, including reasonable
attorney’s fee s.” (23a)

COMMENTS:
Q: W hat are th e san ctio n s th a t m ay be im posed against
a p arty who was given n o tice b u t failed to appear?
 CHAPTER XVI 931
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
A: 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.

3
2 4 . F a ilu re o f P a rty G iv in g N o tic e t o S e r v e S u b p o en a :

Sec. 24, Rule 23 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on failure of the party who gives notice but fails to
serve subpoena. It states that:
uSec. 2 4 . Failure o f th e p a r ty giving notice to
serve subpoena. — If th e party giving th e n o tice o f
th e taking o f a dep osition o f a w itn ess fails to serve
a subpoena upon him or her and th e w itn ess because
o f su ch failure d oes n o t atten d , and if another party
atten d s In person or by cou n sel because h e or sh e
exp ects th e deposition o f th at w itn ess to be taken,
th e court m ay order th e party giving th e n o tice to
pay su ch other party th e am ount o f th e reasonable
ex p en ses incurred by him or her and h is or her cou n sel
in so attending, including reasonable attorney’s fee s.”
(24a)

COMMENTS:
Q: W hat are th e san ctio n s th a t m ay be im posed against
a p arty who gave n o tice b u t failed to serve subpoena?
A: If the party giving the notice of the taking of a deposition
of a witness fails to serve a subpoena upon him or her 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 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.
932 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

25. D eposition by W ritten Interrogatories:

Sec. 25, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provide for
the rules on taking of deposition upon written interrogatories.
It states that:
"Sec. 25. D epositionupon w ritten interrogatories;
service o f notice and o f interrogatories. — A party
desiring to take th e deposition o f any person upon
w ritten interrogatories shall serve them upon every
other party w ith a n otice stating the nam e and
address o f th e person who is to answer them and the
nam e or descriptive title and address o f th e officer
before whom th e deposition is to be taken.
Within ten (10) calendar days thereafter, a party
so served m ay serve cross- interrogatories upon the
party proposing to take th e deposition. W ithin five
(5) calendar days thereafter th e latter may serve re­
direct interrogatories upon a party who has served
cross-interrogatories. Within three (3) calendar days
after being served w ith re-direct interrogatories, a
party m ay serve recross-interrogatories upon th e
party proposing to take th e deposition.” (25a)

COMMENTS:
Q: How to tak e deposition of a person upon w ritten
in terro g ato ries?
A: A party desiring to take the deposition of any person
upon written interrogatories shall:
1) Serve them upon every other party with a notice;
2) It shall state the name and address of the person
who is to answer them; and
3) It shall state the name or descriptive title and
address of the officer before whom the deposition is to be
taken.
 CHAPTER XVI 933
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

Q: W hen to file cro ss-in terro g ato ries?

A: Within ten (10) calendar days thereafter, a party so served
may serve cross-interrogatories upon the party proposing to
take the deposition.

Q: W hen to file re-d irect in terro g ato ries?

A: Within five (5) calendar days thereafter the latter may
serve re-direct interrogatories upon a party who has served
cross-interrogatories.

Q: W hen to file recro ss-in terro g ato ries?

A: 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.

Sample Form Ho. 6; N otice To T am Deposition H e m W ritteh

Interrogatories

Atty. H ector A. Yulo

Counsel for defendant/plaintiff
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
Sir:
Please take notice th a t on J a n u a ry 25, 2020, the
undersigned counsel for Mr. X in Civil Case No. ______ ,
entitled “Mr. X vs. Mr. Y, RTC, Manila, will take the
deposition of Mr. J u a n Dela Cruz, with ad d ress a t 1136-
A A. M aceda St., Sam paloc, Manila, before Notary Public
G erardo F. Lara a t the latte r’s address a t 1018 Taft Evenue,
Malate, M anila a t 10:00 am , upon w ritten interrogatories.
The w ritten interrogatories will continue from day to day at
th e sam e tim e and place u n til the w ritten interrogatories are
completed.
Manila, J a n u a ry 20, 2020.
934 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica
Ermita, Manila

FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 892398167/2-36-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142
Tel No. 217-57-17

CC: 1) YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
2) Mr. J u a n Dela Cruz
Defendant
#41 Dapitan Street
Sampaloc, Manila
3) ATTY. GERARDO F. LARA
No. 1080 Taft Avenue, Malate Manila

EXPLANATION OF SERVICE
Copy of the Notice to take deposition upon written
interrogatories was served to the defendant by registered
mail due to time and distance constraints, and for lack of
the undersigned’s staff who can serve the same in person.
FERDINAND A. TAN

esponses and Prepare Records:

Sec. 26, Rule 23 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10*20) provides for
the rule on officers to take responses and prepare record. It
states that:
 CHAPTER XVI 935
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
“Sec. 2 6 . Officers to ta k e responses a n d p rep a re
record. — A copy o f th e n o tice and cop ies o f all
interrogatories served shall be delivered by th e party
taking th e dep osition to th e officer designated in th e
n o tic e , who shall proceed prom ptly, in th e m anner
provided by S ectio n s 17, 19 and 20 o f th is Rule, to
take th e testim o n y o f th e w itn ess in response to th e
interrogatories and to prepare, certify, and file or
m ail th e d ep osition, attach in g th ereto th e copy o f
th e n otice and th e interrogatories received by him or
her." (26a)

COMMENTS:
Q: W hat is th e d u ty o f th e officer a fte r delivery of th e
n o tice an d copies o f in terro g ato ries?
A: 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, the following:
1) To take the testimony of the witness in response to
the interrogatories; and
2) To prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the interrogatories
received by him or her.

27. Notice o f Filing an d F u rn ish in g of Copies:

— ... ... 1 ........ — ........
■■ 11 ........ —

Sec. 27, Rule 23 o f th e 2 0 1 9 A m endm ents to th e 1997

R ules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the notice of filing and furnishing of copies. It
states that:
wSec. 2 7 . Notice o f filin g a n d fu rn ish in g copies.
— When a dep osition upon interrogatories is filed, th e
officer taking it shall prom ptly give n o tic e th ereo f to
all th e parties and m ay furnish cop ies to them or to
th e deponent upon paym ent o f reasonable charges
therefor.” (27)
936 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat are th e d u ties o f th e officer after filing of
interro g ato ries?
A: When a deposition upon interrogatories is filed, the
officer taking it shall:
1) Promptly give notice thereof to all the parties; and
2) He may furnish copies to them or to the deponent
upon payment of reasonable charges therefor.

28. O rders for th e P rotection of P arties and D eponents:

Sec. 28, Rule 23 of th e 2019 A m endm ents to th e

1997 Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on the orders for the protection of parties and
deponents. It states that:
wSec. 28. Orders fo r th e protection o f p a rtie s and
deponents. — After th e service o f th e interrogatories
and prior to the taking o f th e testim on y o f the
deponent, th e court in which th e action is pending,
on m otion promptly made by a party or a deponent,
and for good cause shown, m ay make any order
specified in Section s 15, 16 and 18 o f th is Rule which
is appropriate and ju st or an order that th e deposition
shall not be taken before the officer designated in the
n otice or th at it shall not be taken except upon oral
exam ination.” (28)

COMMENTS:
Q: W hat are th e p ro tectio n orders th a t m ay be issued by
th e co u rt prior to th e tak in g of testim o ny?
A: 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, it may:
1) Make any order specified in Sections 15, 16 and 18
of this Rule which is appropriate and just;
 CHAPTER XVI 937
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
2) An order that the deposition shall not be taken
before the officer designated in the notice; or
3) That it shall not be taken except upon oral
examination.

29. Effect o f E rrors an d Irreg u larities in th e Deposition:

Sec. 29, Rule 23 o f th e 2019 A m endm ents to th e

1997 Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rules on the effect of errors and irregularities in the
deposition. It states that:
“Sec. 2 9 . E ffects o f errors a n d irregu larities in
deposition s.
(a) A s to notice. — All errors and irregularities
in th e n o tic e for taking a d eposition are waived u n less
w ritten objection is prom ptly served upon th e party
giving th e n otice.
(b) A s to d isqu alification o f officer. — O bjection
to taking a d eposition because o f disqualification o f
th e officer before whom it is to be taken is waived
u n less m ade before th e taking o f th e deposition begins
or as soon thereafter as th e disqualification b ecom es
known or could be discovered w ith reasonable
diligence.
(c) A s to com petency or relevancy o f evidence.
— O bjections to th e com p eten cy o f a w itn ess or th e
com p eten cy, relevancy, or m ateriality o f testim o n y
are not waived by failure to m ake them before or
during th e taking o f th e deposition, u n less th e
ground o f th e objection is one w hich m ight have been
obviated or rem oved if presen ted at th at tim e.
(d) A s to o ral exam ination an d oth er p a rtic u ­
lars. — Errors and irregularities occurring at th e oral
exam ination in th e m anner o f taking th e deposition,
in th e form o f th e qu estion s or answers, in th e oath
or affirm ation, or in th e conduct o f th e parties and
errors o f any kind w hich m ight be obviated, rem oved,
or cured if prom ptly prosecuted, are waived u n less
reasonable objection thereto is m ade at th e taking o f
th e deposition.
938 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(e) As to form o f w ritten interrogatories. —

Objections to th e form o f written interrogatories
subm itted under Sections 25 and 26 o f th is Rule
are waived unless served in writing upon th e party
propounding them w ithin th e tim e allowed for
serving succeeding cross or other interrogatories and
w ithin three (3) calendar days after service o f th e last
interrogatories authorised.
(f) As to manner o f preparation. — Errors and
irregularities in the manner in which th e testim on y
is transcribed or th e deposition is prepared, signed,
certified, sealed, indorsed, transm itted, filed, or
otherw ise dealt with by th e officer under Sections
17, 19, 20 and 26 o f th is Rules are waived unless
a m otion to suppress th e deposition or som e part
thereof is made with reasonable prom ptness after
such defect is, or with due diligence m ight have been,
ascertained.” (29a)

COMMENTS:
Q: When to m ake objection as to errors or irregularities
in th e notice for tak in g o f deposition?
A: 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.
Q: When to m ake objection as to th e disqualification of
th e officer who will tak e th e deposition?
A: 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.

Q: When to m ake objection as to th e com petency of

th e w itness, or com petency, relevancy or m ateriality of
testim o n y ?
 CHAPTER XVI 939
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
A: Objections to the competency of a 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.

Q: W hen to m ake objection as to erro rs and irregularities

in th e tak in g o f oral ex am in atio n and o th e r m a tte rs ?
A: 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.
Q: W hen to m ake objection as to th e form of w ritten
in terro g ato ries?
A: 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) calendar days after service
of the last interrogatories authorized.

Q: When to m ake objection as to th e erro rs and

irreg u larities in th e tra n sc rip tio n , p rep aratio n , signing
etc., o f th e d ep o sitio n ?
A: 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 Rules 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.
940 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

II. RULE 24: DEPOSITIONS BEFORE ACTION

OR PENDING APPEAL

1. D e p o s itio n B efore A ctio n ; P e titio n :

S e c . 1, R u le 2 4 o f t h e 2 0 1 9 A m e n d m e n ts t o th e 1 9 9 7
R u le s o n C ivil P roced u re (A.M. No. 1 9 -1 0 -2 0 ) provides for
the rule on deposition before action. It states that:
MSec. 1. Depositions before action; petition. —
A person who desires to perpetuate his or her own
testim ony or that of another person regarding any
m atter that may be cognizable in any court of the
Philippines, may file a verified petition in the court
o f the place o f the residence of any expected adverse
party.” (la)

COMMENTS:
Q: H ow to p e r p e tu a te t h e te s t im o n y o f a p e r so n b efore
t h e filin g o f an a c tio n ?
A: A person who desires to perpetuate his or her 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.

2 . C o n te n ts o f P e titio n :

S e c . 2 , R u le 2 4 o f t h e 2 0 1 9 A m e n d m e n ts t o t h e 1 9 9 7
R u les o n C ivil P roced u re (A.M. N o. 1 9 -1 0 -2 0 ) provides for
the rule on the contents of the petition. It states that:
u8ec. 2. Contents o f petition. — The petition
shall be entitled in the name o f the petitioner and
shall show: (a) that the petitioner expects to be a
party to an action in a court o f th e Philippines but is
 CHAPTER XVI 941
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
presen tly unable to bring it or cause it to be brought;
(b) th e subject m atter o f th e expected action and his
or her in terest therein; (c) th e facts w hich he or sh e
d esires to establish by th e proposed testim o n y and
h is or her reasons for desiring to perpetuate it; (d)
th e nam es or a description o f th e persons he or she
ex p ects will be adverse parties and their addresses
so far as known; and (e) th e nam es and addresses o f
th e persons to be exam ined and th e substance o f th e
testimony which he or she expects to elicit from each,
and shall ask for an order authorizing th e petition er
to take th e dep osition s o f th e persons to be exam ined
nam ed in th e p etition for th e purpose o f perpetuating
their testim on y.' (2a)

COMMENTS:
Q: W hat are th e c o n te n ts o f th e p e titio n to p erp etu ate
testim o n y ?
A: The petition to perpetuate his or other person’s testimony
shall be entitled in the name of the petitioner and shall show,
the following:
(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.
942 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

S a m pl e F o r m Wo . 1 : V e r if ie d P e t it io h T o P e r p e t u a t e T e stim o n y
B e f o r e A c t io n ( S e c . 2 r R d l e 2 4 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Manila
B ra n c h _____
MR. X,
Petitioner,
- versus - CIVIL CASE N O ._____________
For: Recovery of possession with Damages
x ------------------------------ x

PETITION TO PERPETUATE TESTIMONY

COMES NOW, petitioner, through the undersigned
counsel, and unto this Honorable Court, respectfully avers:
Petitioner is of legal age and residing a t _______ , 1136-
A A. Maceda Street, Sampaloc, Manila.
Petitioner expects to be a party to an action in court in
the Philippines b u t he is presently unable to bring it.
The subject m atter of the expected action is for a recovery
of possession of property and damages, which Mr. Y with
address a t 862 Remedios Street, Malate Manila 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.
The person who was present during the transaction was
J u a n Dela Cruz, with address a t C.M. Recto Manila, and
who knew surrounding facts thereof.
Petitioner is very sick, as he suffered a stroke, and his
physical mobility has greatly been affected.
The interest of justice would be served by perpetuating
the testim onies of herein-petitioner and of J u a n Dela Cruz,
as evidence in the expecteid action against Mr. Y recovery of
possession of property and damages.
 CHAPTER XVI 943
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

WHEREFORE, petitioner respectfully prays th a t the

co urt issue a n order authorizing him to take the deposition
of herein petitioner a n d th a t of J u a n Dela Cruz, before such
authorized person a n d a t su ch tim e and place, as the court
m ay require.
Manila, J a n u a ry 20, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita C enter Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 01451 0 /2 -4 -1 6
PTR NO. 8 9 2 3 9 8 167/2-36-20/M la.
Roll No. 38488
MCLE Exem ption No. VI 002142
Tel No. 217-57-17
VERIFICATION
REPUBLIC OF THE PHILIPPINES)
CITY OF MANILA ) S.S.
I, MR. X, of legal age, Filipino citizen, m arried, and
resident of #1136-A A. M aceda Street, Sam paloc, Manila,
after having been duly sworn to in accordance with law do
hereby depose and say:
1. T hat I am the petitioner in the above-entitled case;
2. T hat I have cau sed the preparation of the foregoing
Petition and have read th e allegations contained therein;
3. The allegations in the said com plaint are tru e and
correct of my own knowledge an d au th en tic records;
4. I hereby certify th a t I have not com m enced any
other action or proceeding involving the sam e issu es in the
Suprem e Court, Court of Appeals, or any other tribunal or
agency;
5. T hat if I should thereafter learned th a t a sim ilar
action or proceedings h a s been filed or is pending before
the Suprem e Court, C ourt of Appeals, or any other tribunal
agency, I hereby un d ertak e to report th a t fact w ithin five (5)
944 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

days therefrom to the court or agency wherein the original

pleading and sworn certification contem plated herein have
been filed;
6. I executed this verification/certification to attest
to the tru th of the foregoing facts and to comply with the
provisions of Adm. Circular No. 04-94 of the Honorable
Suprem e Court.
IN WITNESS WHEREOF, I have hereunto affixed my
signature this ____ day of J a n u a ry 2020, in the City of
Manila.
MR. X

SUBSCRIBED AND SWORN to before me t h i s ______

day of Ja n u a ry 2020, in the City of Manila, affiant exhibiting
to me his Passport. No. _________________ issued at
_____________ o n ______________ .
Doc. N o.____ ;
Page N o.____ ;
Book N o.____;
Series of 2020.
CC: 1) MR. Y
Defendant
862 Remedios Street, Malate Manila
2) Mr. Juan Dela Cruz
Defendant
#41 Dapitan Street
Sampaloc, Manila
Petitioner hereby states th at he will apply to the court,
at a time and place therein for an order described in the
attached petition, at least 20 days before the date of the
hearing.
FERDINAND A. TAN

EXPLANATION OF SERVICE
Copy of the Notice to take deposition upon written
interrogatories was served to the defendant by registered
mail due to time and distance constraints, and for lack of
the undersigned’s staff who can serve the sam e in person.
FERDINAND A. TAN
 CHAPTER XVI 945
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

3. Notice an d Service:

Sec. 3, Rule 24 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the notice and its service. It states that:
“See. 3. Notice a n d service. — The petition er
shall serve a n otice upon each person nam ed in the
p etitio n as an expected adverse party, togeth er with
a copy o f th e p etition , statin g th at th e petition er
will apply to th e court, at a tim e and place nam ed
th erein, for th e order described in th e p etition . At
lea st tw en ty (20) calendar days before th e date o f the
hearing, th e court shall cause n o tice th ereo f to be
served on th e parties and prospective d ep onents in
th e m anner provided for service o f sum m ons.” (3a)

COMMENTS:
Q: W hat are th e course a ctio n s o f th e co u rt before th e
d ate o f h earin g ?
A: At least twenty (20) calendar 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.

4. O rder and Exam ination:

Sec. 4, Rule 24 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the order of examination. It states that
“S ec. 4 . Order a n d exam ination. — If th e court
is satisfied th a t th e perpetuation o f th e testim o n y
m ay prevent a failure or delay o f ju stic e, it shall
m ake an order designating or describing th e persons
w hose dep osition m ay be taken and sp ecifyin g th e
subject m atter o f th e exam ination and w hether th e
dep osition s shall be taken upon oral exam ination or
w ritten interrogatories. The dep osition s m ay th e n be
tak en in accordance w ith Rule 23 before th e hearing.”
(4)
946 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: What may be th e actio n s of th e co u rt on th e p etitio n ?
A: If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall:
1) Make an order designating or describing the persons
whose deposition may be taken; and
2) It shall specify the subject matter of the examination;
and
3) It shall state whether the depositions shall be taken
upon oral examination or written interrogatories.
4) The depositions may then be taken in accordance
with Rule 23 before the hearing

Sec. 5, Rule 24 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the reference to the court. It states that:
"Sec. 5. Reference to court. — For th e purpose
o f applying Rule 23 to depositions for perpetuating
testim on y, each reference therein to th e court In
which th e action is pending shall be deem ed to refer
to th e court In which the petition for such deposition
was filed.” (5)

COMMENTS:
Q: W hat is th e rule in case of reference to th e co u rt?
A: For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court
in which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed.

Sec. 6, Rule 24 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the use of deposition. It states that:
 CHAPTER XVI 947
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
“Sec. 6. Use o f deposition. — If a deposition
to perpetuate testim o n y is tak en under th is Rule,
or if, although n ot so taken, it would be adm issible
in evid en ce, it m ay be used in any action involving
th e sam e subject m atter subsequently brought in
accordance w ith th e provisions o f S ectio n s 4 and 5 o f
Rule 2 3 .” (6)

COMMENTS:
Q: W hat is th e use o f th e d eposition ta k e n ?
A: If a deposition to perpetuate testimony is taken under
this Rule, or if, although not so taken, it would be:
1) Admissible in evidence; or
2) It may be used in any action involving the same
subject matter subsequently brought in accordance with the
provisions of Sections 4 and 5 of Rule 23.

7. D eposition Pending Appeal:

Sec. 7, Rule 24 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on taking of deposition pending appeal. It states that:
“Sec. 7. D eposition pen din g a p p e a l — If an
appeal has been taken from a judgm ent o f a court,
Including th e Court o f Appeals in proper cases, or
before th e taking o f an appeal if th e tim e therefor
has not expired, th e court in w hich th e judgm ent
was rendered m ay allow th e taking o f dep osition s o f
w itn esses to perpetuate their testim o n y for u se in
th e even t o f further proceedings in th e said court.
In such case th e party who desires to perpetuate th e
testim o n y m ay m ake a m otion in th e said court for
leave to take th e d ep ositions, upon th e sam e n o tice and
service th ereo f a s if th e action was pending therein.
The m otion shall sta te (a) th e nam es and addresses
o f th e persons to be exam ined and th e substance
o f th e testim o n y w hich he or sh e exp ects to elicit
from each; and (b) th e reason for perpetuating their
testim o n y . If th e court finds th at the perpetuation o f
th e testim o n y is proper to avoid a failure or delay o f
ju stic e, it m ay m ake an order allowing th e depositions
to be taken, and thereupon th e dep osition s m ay be
948 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

taken and used in the same manner and under the

same conditions as are prescribed in these Rules for
depositions taken in pending actions." (7a)
COMMENTS:
Q: W hat is th e rule on th e tak in g o f deposition pending
appeal?
A: 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 use in the event of further proceedings in the
said court.
Q: W hat are th e requirem ents to be com plied w ith?
A: 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.
Q: W hat are th e co n ten ts o f th e m otion?
A: The motion shall state the following:
1) The names and addresses of the persons to be
examined; and
2) The substance of the testimony which he or she
expects to elicit from each;
3) the reason for perpetuating their testimony.
Q: W hat are th e actions o f th e co u rt if perpetuation of
testim o n y is proper?
A: If the court finds that the perpetuation of the testimony
is proper to avoid a failure or delay of justice, it may:
1) Make an order allowing the depositions to be taken;
and
2) 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.
 CHAPTER XVI 949
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

III. RULE 25: INTERROGATORIES TO PARTIES

1. In terro g ato ries to P arties; Service:

Sec. 1, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) p ro v id e s for
th e r u le o n in te rro g a to rie s to p a rtie s . It s ta te s th a t:

“Sec. 1. Interrogatories to p a rties; service

thereof. — Upon ex parte m otion, any party desiring
to elicit m aterial and relevant facts from any adverse
parties shall file and serve upon th e latter w ritten
interrogatories to be answered by th e party served or,
if th e party served is a public or private corporation
or a partnership or association , by any officer th ereof
com p eten t to te stify in its behalf.” (la)

COMMENTS:
Q: How to avail th e m ode o f discovery o f in terro g ato ries
to p artie s?
A: Upon ex parte motion, any party desiring to elicit material
and relevant facts from any adverse parties shall:
1) File and serve upon the latter written interrogatories
to be answered by the party served; or,
2) 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.
Q: W hat is th e rem edy in case o f denial of w ritten
in terro g ato ries?
A: An order denying the written interrogatories is
interlocutory in nature, and petition for certiorari under Sec.
1, Rule 65 in case the order is patently erroneous.
950 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

The trial court’s o rd er denying th e w ritte n

in terro g ato ries is in terlo cu to ry in n atu re. And the
extraordinary remedy writ of certiorari is generally not an
available remedy to challenge an interlocutory order of a 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
the order disallowing petitioner’s written interrogatories are
patently erroneous, hence, the resort to certiorari is warranted.
(Ong vs. Mazo, G.R. No. 145542, June 4, 2004)
Q: D istinguish W ritten In terro g ato ries Under Rule 23
and W ritten In terro g ato ries U nder Rule 25?

W ritten Interrogatories W ritten Interrogatories

(Rule 25) (Rule 23)

a) In w ritten interrogatories a) In w ritten interrogatories

u n d e r Rule 25, it is u n d e r Rule 23, th e deponent
directly served to the is a third person not
adverse party; necessarily a party;

b) In w ritten interrogatories b) in w ritten interrogatories

u n d e r Rule 25, no officer u n d e r Rule 23, it is required
to take deposition is th a t it will be tak en by a
required. deposition officer.

Q: D istinguish w ritte n in terro g ato ries to p artie s (Rule

25) from bill o f p articu lars (Rule 12)?

W ritten Interrogatories Bill o f Particulars

(Rule 25) (Rule 12)

a) W ritten interrogatories a) Bill of particulars u n d e r

u n d e r Rule 25 seek to
disclose all m aterials and
relevant facts from a party;
Rule 12 is intended for
the purpose of clarifying
am biguities in a pleading
or to state with sufficient
definiteness the allegations
in th e pleading;
 CHAPTER XVI 951
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

b) W ritten interrogatories b) Bill of particu lars u n d er

u n d er Rule 25 is not Rule 12, is directed to the
directed to a pleading, pleadings with am biguous
b u t to the m aterial and allegations.
relevant facts w ithin the
knowledge of the adverse
party.

|| 2 . A n sw er^ to J n teiT O g a to ^

Sec. 2, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the filing of answer to interrogatories. It states
that:
“S ec. 2. A n sw er to interrogatories. — The
interrogatories shall be answered fully in writing and
shall be signed and sworn to by th e person m aking
them . The party upon whom th e interrogatories have
been served shall file and serve a copy o f th e answers
on th e party subm itting th e interrogatories w ithin
fifteen (15) calendar days after service thereof, u n less
th e court, on m otion and for good cause show n,
exten d s or sh orten s th e tim e .n (2a)

COMMENTS:
Q: W hat is th e rem edy o f th e p arty served w ith in te r­
rog ato ries?
A: The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person making them.

Q: W hen to file and serve answ er to in terro g ato ries?

A: 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.
952 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. O bjections to In terro g ato ries:

Sec. 3, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the objections to interrogatories. It states that:
uSec. 3. Objections to interrogatories. —
O bjections to any interrogatories m ay be presented
to th e court w ithin ten (10) calendar days after
service thereof, w ith n otice as in case o f a m otion;
and answers shall be deferred u n til th e objections
are resolved, w hich shall be at as early a tim e as is
practicable.” (3a)

COMMENTS:
Q: W hen to reg ister objections to in terro g ato ries?
A: 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.
Q: W hat is th e effect o f filing o f an o bjection?
A: Filing of answers shall be deferred until the objections
are resolved, which shall be at as early a time as is practicable.*4

4. Num ber to In terro g ato ries:

Sec. 4, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the number of interrogatories. It states that:
“Sec. 4. Number o f interrogatories. — No party
m ay, w ithout leave o f court, serve m ore than one se t
o f interrogatories to be answered by th e sam e party.”
(4)

COMMENTS:
Q: W hat is th e rule on th e service o f in terro g ato ries?
A: No party may, without leave of court, serve more than
one set of interrogatories to be answered by the same party.
 CHAPTER XVI 953
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

5. Scope an d Use o f In terro g ato ries:

Sec. 5, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the scope and use of interrogatories. It states that:
“Sec. 5. Scope a n d use o f interrogatories. —
Interrogatories m ay relate to any m atters th at can
be inquired in to under S ection 2 o f Rule 2 3 , and th e
answers m ay be u sed for th e sam e purposes provided
in S ection 4 o f th e sam e R ule.” (5)

COMMENTS:
Q: W hat is th e scope an d use o f in terro g ato ries?
A: Interrogatories may relate to any matters that can be
inquired into under Sec. 2 of Rule 23, and the answers may
be used for the same purposes provided in Sec. 4 of the same
Rule.
.... ■ .......... ..................... ............................... -

6. Effect o f Failure to Serve W ritten In terro g ato ries

(Bar E xam ination 2016):_______________________

Sec. 6, Rule 25 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on effect of failure to serve written interrogatories. It
states that:
“Sec. 6. E ffect o f fa ilu re to serve interrogatories.
— U nless thereafter allow ed by th e court for good
cause show n and to prevent a failure o f ju stic e , a
party n ot served w ith w ritten interrogatories m ay n ot
be com pelled by th e adverse party to give testim o n y
in open court, or to give a d eposition pending appeal.”
( 6)

COMMENTS:
Q: W hat is th e effect o f failure to serve w ritten in te r­
rogatories to a p arty ?
A: U n le s s th e r e a f te r allo w ed b y th e c o u r t for good c a u s e
s h o w n a n d to p re v e n t a fa ilu re o f ju s tic e , a p a rty n o t se rv e d
w ith w ritte n in te rro g a to rie s m a y n o t b e c o m p e lle d by th e
954 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

adverse party to give testimony in open court, or to give a

deposition pending appeal.

Case Law:

As a rule, in civil cases, the procedure of calling the

adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter under
Sec. 6, Rule 25 of the Rules. One of the purposes of the rule
is to prevent fishing expeditions and needless delays; it is
there to maintain order and facilitate the conduct of trial.
It will be presumed that a party who does not serve written
interrogatories on the adverse party beforehand will most
likely be unable to elicit facts useful to its case if it later opts
to call the adverse party to the witness stand as its witness.
Instead, the process could be treated as a fishing expedition
or an attempt at delaying the proceedings; it produces no
significant result that a prior written interrogatories might
bring. Besides, since the calling party is deemed bound by
the adverse party’s testimony, compelling the adverse party
to take the witness stand may result in the calling party
damaging its own case. Another reason for the rule is that
by requiring prior written interrogatories, the court may
limit the inquiry to what is relevant, and thus prevent the
calling party from straying or harassing the adverse party
when it takes the latter to the stand.
Thus, the rule not only protects the adverse party from
unwarranted surprises or harassment; it likewise prevents
the calling party from conducting a fishing expedition
or bungling its own case. Using its own judgment and
discretion, the court can hold its own in resolving a dispute,
and need not bear witness to the parties perpetrating unfair
court practices such as fishing for evidence, badgering,
or altogether ruining their own cases. Ultimately, such
unnecessary processes can only constitute a waste of the
court’s precious time, if not pointless entertainment. (Sps.
Vicente Afulugencia and Leticia Afulugencia vs. Metropolitan
Bank & TYust Company, et al., G.R. No. 185145, February 5,
2014)
 CHAPTER XVI 955
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
Q: Is it req u ired th a t before th e p arty m ay p re se n t an
adverse p a rty as a w itness, he m u st be served w ith w ritten
in terro g ato ries, and m u st su b m it h is ju d icial affidavit?
A: 1) As regards serving written interrogatories the
party presenting the adverse party must comply with the
requirements under Sec. 6, Rule 25.
2) As regards the second question, an adverse party is
exempt from submitting a judicial affidavit.

Case Law:

The JAR primarily affects the manner by which evidence

is presented in court. Section 2(a) of the JAR provides that
judicial affidavits are mandatorily filed by parties to a case
except in small claims cases. These judicial affidavits take
the place of direct testimony in court. Under Section 10,
parties are to be penalized if they do not conform to the
provisions of the JAR. Parties are however allowed to resort
to the application of a subpoena pursuant to Rule 21 of the
Rules of Court in Sec. 5 of the JAR in certain situations
such as to a requested witness who is n o t the (1) adverse
party’s witness nor (2) a hostile witness. Yap is a requested
witness who is the adverse party’s witness. He is included in
a group of individuals expressly exempt from the provision’s
application. The JAR being silent on this point, we turn to the
provisions governing the rules on evidence covering hostile
witnesses specially Sec. 12, Rule 132 of the Rules of Court.
Before a party may be qualified under Sec. 12, Rule 132 of
the Rules of Court, the party presenting the adverse party
witness m ust comply with Sec. 6, Rule 25 of the Rules of
Court. In Afulugenda vs. Metropolitan Bank & Trust Co., the
Court stated that “in civil cases, the procedure of calling the
adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.” (Ng
Meng Tam vs. China Banking Corporation, G.R. No. 214054,
August 5, 2015)
956 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

IV. RULE 26: ADMISSION BY

ADVERSE PARTY

R equest for Adm ission (Bar E xam ination 2016):

Sec. 1, Rule 26 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the request for admission. It states that:
“Sec. 1. R equest fo r adm ission. — At any tim e
after issu es have been joined, a party m ay file and
serve upon any other party a w ritten request for th e
adm ission by the latter o f th e genuineness o f any
m aterial and relevant docum ent described in and
exhibited with the request or o f th e truth o f any
m aterial and relevant m atter o f fact se t forth in th e
request. Copies o f th e docum ents shall be delivered
with th e request u n less copies have already been
furnished.” (1)

COMMENTS:
Q: When to file w ritten req u est for adm ission?
A: 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.
Q: W hat is th e a tta c h m e n t o f th e w ritten request?
A: Copies of the documents shall be delivered with the
request unless copies have already been furnished.

Q: W hat is th e rule on giving probative value to an

adm ission as evidence?
A: While the admission is admissible in evidence, its
probative value is to be determined from the whole statement
 CHAPTER XVI 957
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
and others intimately related or connected therewith as an
integrated unit.

C a se Law:

Every alleged admission is taken as an entirety of the

fact which makes for the one side with the qualifications
which limit, modify, or destroy its effect on the other side. The
reason for this is, where part of a statement of a party is used
against him as an admission, the court should weigh any
other portion connected with the statement, which tends to
neutralize or explain the portion which is against interest. In
other words, while the admission is admissible in evidence, its
probative value is to be determined from the whole statement
and others intimately related or connected therewith as
an integrated unit. Although acts or facts admitted do not
require proof and cannot be contradicted, however, evidence
aliunde can be presented to show that the admission was
made through palpable mistake. The rule is always in favor of
liberality in construction of pleadings so that the real matter
in dispute may be submitted to the judgment of the court.
(Republic of the Philippines vs. Cojuangco, et al, G.R. No.
180702, April 12, 2011)

S ample F orm Wo . 1; R equest F or Admission Of Documents O r

Material F acts (Rule 26)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch _____
MR. X,
Plaintiff,
0 - versus - CIVIL CASE N O .______________
For: Recovery of possession with Damages
MR. Y
Defendant,
x ---------------------------- x
958 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

RE: REQUEST FOR ADMISSION

Mr. Y
Defendant
914 Dapitan Street,
Sampaloc, Manila
P u rsu an t to Sections 1 and 2 of Rule 26 of the Rules of
Court, request is hereby m ade upon you, within fifteen (15)
days from your receipt hereof, to adm it the due execution
and genuineness of the docum ents, herein listed below, and
the tru th of the facts below enum erated, as follows:
The due execution and authenticity of the following
docum ents, namely:
— Transfer Certificate of Title No. 4568 issued by The
Register of Deeds of Manila;
— K asunduan sa Pagbebenta sa Lupa;
— Acknowledgment Receipt
Manila, J a n u a ry 20, 2020

TLLM LAW& ASSOCIATES

LAWOFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 8 9 2 3 9 8 1 6 7 /2 -3 6 -2 0 /Mia.
Roll No. 38488
MCLE Exemption No. VI 002142
Tel No. 217-57-17

CC: 1) ATTY. RONALD C. CHE

Branch Clerk of Court
RTC, B ra n c h __ , Manila
2) Mr. Y
Defendant
914 D apitan Street,
Sampaloc, Manila
 CHAPTER XVI 959
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

2. Im plied Adm ission:

Sec. 2, Rule 26 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on implied admission. It states that:
“Sec. 2. Im plied adm ission. — Each o f the
m atters o f w hich an adm ission is requested shall be
deem ed adm itted u n less, w ithin a period designated
in th e request, w hich shall n ot be le ss th an fifteen (15)
calendar days after service thereof, or w ithin such
further tim e as th e court m ay allow on m otion, th e
party to whom th e request is directed files and serves
upon th e party requesting th e adm ission a sworn
sta tem en t eith er denying sp ecifically th e m atters o f
w hich an adm ission is requested or se ttin g forth in
detail th e reasons w hy he or sh e cannot truthfully
eith er adm it or deny th o se m atters.
O bjections to any request for adm ission shall be
subm itted to th e court by th e party requested w ithin
th e period for and prior to th e filing o f h is or her
sworn sta tem en t as con tem plated in th e preceding
paragraph and h is or her com pliance therew ith shall
be deferred u n til su ch objections are resolved, w hich
resolution shall be m ade as early as practicable.” (2a)

COMMENTS:
Q: How to deny m a tte rs s ta te d in th e w ritte n req u est
for ad m issio n ?
A: 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 m atters.
Q: W hat is an adm issio n ?
A: An admission is any statement of fact made by a party
against his interest or unfavorable to the conclusion for which
960 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

he contends or is inconsistent with the facts alleged by him.

(Lacbayan vs. Samoy, G.R. No. 165427, March 21, 2011)

Q: W hat are th e requirem ents in order th a t adm ission

be adm issible?
A: To be admissible, an admission must:
1) Involve matters of fact, and not of law;
2) Be categorical and definite;
3) Be knowingly and voluntarily made; and
4) Be adversed to the admitter’s interests, otherwise it
would be self-serving and inadmissible. (Lacbayan vs. Samoy,
G.R. No. 165427, March 21,2011)

Q: W hat is th e effect o f th e d efen d ant's silence on th e

req u est for w ritten adm ission?
A: The silence of defendant on the plaintiffs request for
admission amounts to an implied acceptance of the facts set
forth therein with the effect that plaintiffs claim undisputed.

Case Law:

Each matter must be denied specifically under oath

setting forth in detail the reason why he cannot truthfully
admit or deny. The silence of defendant on th e plaintiff's
req u est for adm ission am ounts to an im plied acceptance
of th e facts se t forth th e re in w ith th e effect th a t p la in tiffs
claim stood undisputed. (Manzano vs. Despabiladeras, G.R.
No. 148786, December 16, 2004)
Q: W hat are th e im itatio n s on "Im plied Admission
Rule”?
A: The redundant and unnecessarily vexatious nature of
petitioner’s request for admission rendered it ineffectual,
futile, and irrelevant so as to proscribe the operation of the
implied admission rule in Sec. 2, Rule 26 of the Rules of
Court.
 CHAPTER XVI 961
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

Case Law:

In this case, the redundant and unnecessarily vexatious

nature of petitioner’s request for admission rendered it
ineffectual, futile, and irrelevant so as to proscribe the
operation of the implied admission rule in Sec. 2, Rule 26
of the Rules of Court. There being no implied admission
attributable to respondents’ failure to respond, the argument
that a preliminary hearing is imperative loses its point. (Limos
us. Spouses Odones, G.R. No. 186979, August 11, 2010)
Q: How to reg ister o bjections to any req u est for
adm issio n ?
A: Objections to any request for admission shall be
submitted to the court by the party requested within the
period for and prior to the 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.
Q: Will th e p arty served w ith a w ritte n req u est for
adm ission required to su b m it h is sw orn s ta te m e n t
objection w hen he previously co n tro v erted said m a tte r in
a previous pleading? (Bar E xam ination 2018)
A: No, when the party to whom such request for admission
is served had already controverted the matters subject of
such request in an earlier pleading.

I^Case^Law: ||

Clearly, once a party served a request for admission as

to the truth of any material and relevant matter of fact, the
party to whom such request is served has 15 days within
which to file a sworn statement answering it. In case of
failure to do so, each of the matters of which admission is
requested shall be deemed admitted. This rule, however,
admits of an exception, that is, when the party to whom such
request for admission is served had already controverted
the matters subject of such request in an earlier pleading.
Otherwise stated, if the matters in a request for admission
962 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

have already been admitted or denied in previous pleadings

by the requested party, the latter cannot be compelled to
admit or deny them anew. In turn, the requesting party
cannot reasonably expect a response to the request and,
thereafter, assume or even demand the application of the
implied admission rule in Section 2, Rule 26. The rationale is
that “admission by an adverse party as a mode of discovery
contemplates of interrogatories that would clarify and tend
to shed light on the truth or falsity of the allegations in a
pleading, and does not refer to a mere reiteration of what has
already been alleged in the pleadings; or else, it constitutes
an utter redundancy and will be a useless, pointless process
which petitioner should not be subjected to. (Duque and Heirs
of Mateo Duque vs. Spouses Yu and Delia Duque Capacio, G.R.
No. 226130, February 19, 2018)

Q: Will req u est for adm ission be available if th e m a tters

raised th erein were already alleged in th e am ended
com plaint?
A: No, a request for admission that merely reiterates the
allegations in an amended pleading is inappropriate under
Rule 26 of the Rules of Court.
|... ■* »" —
—U
| Case Law: ||

A careful examination of the said Request for Admission

shows that the matters of fact set forth therein are simply a
reiteration of respondent’s main allegation in its Amended
Complaint and that petitioners had already set up the
affirmative defense of partial payment with respect to the
above allegation in their previous pleadings.
This Court has ruled that if the factual allegations in the
complaint are the very same allegations set forth in the request
for admission and have already been specifically denied, the
required party cannot be compelled to deny them anew. A
request for admission that merely reiterates the allegations
in an earlier pleading is inappropriate under Rule 26 of the
Rules of Court, which as a mode of discovery, contemplates
of interrogatories that would clarify and tend to shed light
on the truth or falsity of the allegations in the pleading. Rule
 CHAPTER XVI 963
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
26 does not refer to a mere reiteration of what has already
been alleged in the pleadings. Nonetheless, consistent with
the abovementioned Rule, the party being requested should
file an objection to the effect that the request for admission is
improper and that there is no longer any need to deny anew the
allegations contained therein considering that these matters
have already been previously denied. (Spouses Ramon Villuga
and Mercedita Villuga, us. Kelly Hardware and Construction
Supply Inc., Represented by Ernesto V. Yu, Executive Vice-
President and General Manager, G.R. No. 176570, July 18,
2012 )

3. Effect o f Admission:

Sec. 3, Rule 26 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on effect of admission. It states that:
“Sec. 3. E ffect o f adm ission. — Any adm ission
m ade by a party pursuant to su ch request is for th e
purpose o f th e pending action only and shall not
co n stitu te an adm ission by him or her for any other
purpose nor m ay th e sam e be u sed against him or her
In any other proceeding.” (3a)

COMMENTS:
Q: W hat are th e lim itatio n s on th e adm ission?
A: 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 or her in any other
proceeding.

4. W ithdrawal:

Sec. 4, Rule 26 o f th e 2 0 1 9 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on withdrawal of admission. It states that:
964 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 4. W ithdrawal. — The court may allow the

party making an adm ission under th is Rule, whether
express or Implied, to withdraw or amend it upon
such term s as may be ju s t.” (4)

COMMENTS:
Q: W hat is th e rem edy of th e person m aking an
adm ission?
A: The court may allow the party making an admission
under this Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just.
"■ . ac=
5. Effect of Failure to File and Serve R equest for
Admission:

Sec. 5, Rule 26 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the effect of failure to file and serve request for
admission. It states that:
“Sec. 5. Effect offailu re to file and serve request
fo r admission. — Unless otherwise allowed by the
court for good cause shown and to prevent a failure
o f justice, a party who fails to file and serve a request
for adm ission on the adverse party o f material and rel­
evant facts at issue which are, or ought to be, within
the personal knowledge o f the latter, shall not be per­
m itted to present evidence on such facts.” (5)

COMMENTS:
Q: W hat is th e effect of failure to file and serve request
for adm ission to th e adverse party?
A: 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.
 CHAPTER XVI 965
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

V. RULE 27: PRODUCTION OR INSPECTION

OF DOCUMENTS AND THINGS

1. M otion for P roduction or In sp ectio n Order:

Sec. 1, Rule 27 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rule on the motion and order for production and
inspection. It states that:
“Sec. 1. Motion f o r produ ction or inspection;
order. — Upon m otion o f any party show ing good cause
therefor, th e court in w hich an action is pending m ay (a)
order any party to produce and perm it th e in sp ection
and copying or photographing, by or on behalf o f the
m oving party, o f any designated docum ents, papers,
books, accou n ts, letters, photographs, objects or
tangible th in gs, not privileged, w hich co n stitu te or
contain evid en ce m aterial to any m atter involved in
th e action and w hich are in h is or her p ossession ,
cu stod y or control; or (b) order any party to perm it
entry upon designated land or other property in
h is or her p ossession or control for th e purpose o f
insp ectin g, m easuring, surveying, or photographing
th e property or any designated relevant object or
operation thereon. The order shall specify th e tim e,
place and m anner o f m aking th e in sp ection and
taking cop ies and photographs, and m ay prescribe
su ch term s and con d ition s as are ju s t.” (la)

COMMENTS:
Q: W hat are th e orders w hich m ay be issued by th e co u rt
in case of m o tio n for p ro d u ctio n an d in sp ec tio n ?
A: Upon motion of any party showing good cause therefor,
the court in which an action is pending may issue the
following:
966 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

(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, n o t p r iv ile g e d , which constitute or contain evidence
material to any matter involved in the action and which are
in his possession, custody or control; or
(b) 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.
Q: W hat is covered by th e O rder of th e co u rt?
A: The order may include, produce and permit the inspection
and copying or photographing of any designated documents,
papers, books, accounts, letters, photographs, objects, or
tangible things, which are not privileged, and to permit entry
upon designated land or other property in his possession or
control.

Case Law:

The provision shows that the production or inspection

of documents or things as a mode of discovery sanctioned
by the Rules of Court may be availed of by any party upon
showing of a good cause therefor before the court in which
the action is pending. The court may order any party:
a) to produce and permit the inspection and copying or
photographing of any designated documents, papers, books,
accounts, letters, photographs, objects, or tangible things,
which are 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 b) 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. (Air Philippines Corporation vs.
Penswell, Inc., G.R. No. 172835, December 13, 2007)
 CHAPTER XVI 967
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
Q: W hat are th e d o cu m en ts w hich are privileged and
c a n n o t be th e su b ject o f p ro d u ctio n and in sp ec tio n of
d o cu m en ts?
A: Documents, papers, objects, accounts, letters,
photographs, objects and other tangible things which are
privileged in character and cannot be the subject of Rule 27,
as follows, to wit:
a) Privileged communication between husband and
wife (Sec. 24[a], Rule 130);
b) Privileged communication between attorney and
client (Sec. 24[b], Rule 130);
c) Privileged communication between physician and
patient (Sec. 24[c], Rule 130);
d) Privileged communication between priest and
penitent (Sec. 24(d), Rule 130);
e) Privileged communication of public officers and
public interest (Sec. 24(e), Rule 130);
f) Editors may not be compelled to disclose source of
published news;
g) Voters may not be compelled to disclose for whom
they voted;
h) Trade secrets;
i) Information contained in tax census returns; and
j) Bank deposits.
Q: Would h o sp ital records o f a p a tie n t be su b ject of
p ro d u ctio n an d in sp ec tio n of d o cu m en ts?
A: Disclosing them would be the equivalent of compelling
the physician to testify on privileged matters he gained while
dealing with the patient, without the latter’s prior consent
and violates Sec. 24(c), Rule 130.

Case Law:
It is possible to treat Josielene’s motion for the issuance
of a subpoena duces tecum covering the hospital records as
968 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a motion for production of documents, a discovery procedure

available to a litigant prior to trial. Section 1, Rule 27 of the
Rules of Civil Procedure has a limitation: the documents to be
disclosed are “not privileged.”
Josielene of course claims that the hospital records
subject of this case are not privileged since it is the “testimonial”
evidence of the physician that may be regarded as privileged.
Section 24(c) of Rule 130 states that the physician “cannot in
a civil case, without the consent of the patient, be examined”
regarding their professional conversation. The privilege, says
Josielene, does not cover the hospital records, but only the
examination of the physician at the trial.
To allow, however, the disclosure during discovery
procedure of the hospital records—the results of tests that
the physician ordered, the diagnosis of the patient’s illness,
and the advice or treatment he gave him— would be to allow
access to evidence that is inadmissible without the patient’s
consent. Physician memorializes all these information in the
patient’s records. Disclosing them would be the equivalent
of compelling the physician to testify on privileged matters
he gained while dealing with the patient, without the latter’s
prior consent. (Josielene Lara Chan vs. Johnny T. Chan, G.R.
No. 179786, July 24, 2013)
Q: W hat is th e natu re o f th e gran t of th e rem edy of
production and in spection o f docum ents?
A: The grant of a motion for production of document is
discretionary on the part of the trial court judge, nevertheless,
it cannot be arbitrarily or unreasonably denied because to do
so would bar access to relevant evidence and hence, impair
his right to due process.

Case Law:
The provision on production and inspection of
documents is one of the modes of discovery sanctioned by
the Rules of Court in order to enable not only the parties,
but also the court to discover all the relevant and material
facts in connection with the case pending before it. Generally,
the scope of discovery is to be liberally construed so as to
provide the litigants with information essential to the fair and
 CHAPTER XVI 969
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
amicable settlement or expeditious trial of the case. All the
parties are required to lay their cards on the table so that
justice can be rendered on the merits of the case. Although
the grant of a motion for production of document is admittedly
discretionary on the part of the trial court judge, nevertheless,
it cannot be arbitrarily or unreasonably denied because to do
so would bar access to relevant evidence that may be used
by a party-litigant and hence, impair his fundamental right
to due process. The test to be applied by the trial judge in
determining the relevancy of documents and the sufficiency of
their description is one of reasonableness and practicability.
(Eagleridge Development Corporation, Marcelo N. Naval and
Crispin I. Oben vs. Cameron Granville 3 Asset Management,
Inc., G.R. No. 204700, April 10, 2013)
Q: W hat is th e purpose o f th e rem edy of p ro d u ctio n and
in sp ectio n o f d o cu m en t?
A: The provision on production and inspection of documents
is to enable not only the parties but also the court to discover
all the relevant and material facts in connection with the case
pending before it.

On the other hand, the provision on production and

inspection of documents is to enable not only the parties but
also the court (in this case, the PHIC Arbitration Department)
to discover all the relevant and material facts in connection
with the case pending before it. It must be shown, therefore,
that the documents sought to be produced, inspected and/
or copied/photographed are material or contain evidence
relevant to an issue involved in the action. (Philippine Health
Insurance Corporation vs. Our Lady o f Lourdes Hospital, G.R.
No. 193158, November 11, 2015)
Q: W hat are th e lim itatio n s on th e rem edy of m o tio n for
prod u ctio n an d in sp ec tio n o f d o cu m en ts and th in g s?
A: The inspection should be limited to those documents
designated with sufficient particularity in the motion, such
that the adverse party can easily identify the documents he is
required to produce.
970 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

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
identify the documents he is required to produce. Rule 27
permits "Ashing for ev idence.” 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 Trust Company vs. Gateway Electronics
Corporation, et al., G.R. No. 164805, April 30, 2008)
Q: D istinctions betw een Production and Inspection
of D ocum ents and Things under Rule 27 and Subpoena
D u ces T ecum under Rule 21.

Production and Inspection

o f Docum ents and Things
(Rule 27)
a) In production and inspec­
tion of docum ents and
things u n d er Rule 27, it
is a mode of discovery.
b) In production and inspec­
tion of docum ents and
things u n d er Rule 27, it
is directed to a party liti­
gants.
c) In production and
inspection of docum ents
and things under Rule
27, it can be availed of by
motion.
Subpoena Duces Tecum
(Rule 21)
a) Subpoena duces tecum
under Rule 21 is a writ
or a process of compelling
production of evidence.
b) Subpoena duces tecum
under Rule 21, it is
directed against any
person which includes
litigants.
c) In subpoena duces tecum
under Rule 21, it is by
m eans of a request which
is issued ex-parte.
 CHAPTER XVI 971
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
Q: D istin ctio n s betw een P roduction and In sp ectio n of
D ocum ents an d Things u n d er Rule 27 and E xception to
th e O riginal D ocum ent Rule Sec. 3(b), Rule 130.

Production and Inspection E xception to th e B est

o f D ocum ents and Things
(Rule 27)
a) In Production and in ­
sp ection o f docum ents
and th in gs under Rule
2 7 , it is a mode of discov­
ery.
b) Under Rule 2 7 , it can be
availed of through motion.
c) U nder Rule 2 7 , the
m ovant h a s no prior
knowledge on the contents
of the docum ents to be
produced.
d) The purpose of Rule 2 7 is
to obtain full knowledge
a n d facts from the adverse
party relevant to the issue
to the case.
Evidence Rule
(Sec. 3[b], Rule 130)
a) When th e original is in
th e p ossession o f th e
adverse party under
Sec. 3(b), Rule 130, it is
an exception to the Best
Evidence Rule.
b) Under Sec. 3(b), Rule
130, it can be done by
notice.
c) Under Sec. 3(b), Rule
130, h a s knowledge of the
contents of the docum ents
to be produced.
d) The purpose of Sec. 3(b),
Rule 130, is to present
secondary evidence for
failure of the adverse party
to produce the original
despite notice.

Sample Form Wo. 1; Motion f o r Production ahp Inspection (Rule

21)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .__________
For: Recovery of possession
with Damages
972 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MR. Y,
Defendant,
x ----------------------------x

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 dem and
to tu rn over the possession of the said lot he refused and
continuously refusing the same which is evidenced by the
written agreement between them which m aterial to the
cause of action of the plaintiff;
3) Plaintiff needs such docum ents to prove its claims,
which are in the custody and control of the defendant;
4) The records and docum ents mentioned are not
privileged nor confidential.
WHEREFORE, plaintiff prays th at an order be
issued, authorizing plaintiffs accountants and lawyers
entry to defendant’s office, making available to them all
records pertaining the subject lots and allowing them to
photographing said docum ents deem m aterial and relevant
to the issues in the pending action.
Such other relief as may be deemed ju s t and equitable
under the prem ises are likewise prayed for.
Manila, Ja n u ary 20, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-24-16
PTR NO. 4990562/ 1-14-16/M la.
Roll No. 38488
MCLE Exemption No. VI 002142
Tel No. 217-57-47
 CHAPTER XVI 973
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

NOTICE OF HEARING

TO: ATTY. HECTOR A. YULO

Defendant
GREETI NGS:
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on January_2020, at
2:00 p.m.
FERDINAND A. TAN

CC: 1) YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
EXPLANATION OF SERVICE

Copy of the Motion for Production and Inspection of

Documents was served to the defendant by registered mail
due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the same in person.
FERDINAND A. TAN
974 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

VI. RULE 28: PHYSICAL AND MENTAL

EXAMINATION OF PERSON

1. When Exam ination May Be O rdered?

Sec. 1, Rule 28 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on order of examination of a party. It states that:
MSec. 1. When exam ination m ay be ordered. — In
an action in which th e m ental or physical condition
o f a party is in controversy, th e court in which the
action is pending may in its discretion order him or
her to subm it to a physical or m ental exam ination by
a physician.” (la)

COMMENTS:
Q: W hat is th e course of actio n of th e co u rt if th ere is an
issue on th e m ental and physical condition of a party?
A: 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.
Sample F orm No . 1 : Motion F or P hysical Amp Mental E xamination
(Rule 28)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Annulm ent of Contract with Damages
 CHAPTER XVI 975
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

MR. Y,
Defendant,
x ------------------------- x

MOTION FOR PHYSICAL AND MENTAL EXAMINATION

PLAINTIFF, by counsel and to this Honorable Court,

respectfully alleges:
1) One of the issues raised by the defendant in this
case is th a t he did not voluntarily agree to, and execute,
the deed of sale of a parcel of land, subject m atter of the
pending case, because he allegedly was insane at the time
of the execution of said deed of sale.
2) To determ ine defendant’s claim of insanity, it
is necessary th a t a physical and m ental exam ination of
defendant be conducted by a governm ent physician at the
Philippine General Hospital, specifying the time, place,
m anner, conditions and scope of the exam ination of said
person and directing the exam ining physician to render a
w ritten report thereon.
Manila, J a n u a ry 20, 2020.

TLLM LAW & ASSOCIATES

LAW OFFICE
Counsel for the plaintiff
Room 1408 Erm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 8 9 2 3 9 8 167/2-36-20/M la.
Roll No. 38488
MCLE Exemption No. VI 002142
Tel No. 217-57-47

NOTICE OF HEARING

TO: ATTY. HECTOR A. YULO

Defendant
976 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court on J a n u a r y _2020, at
2:00 p.m.
FERDINAND A. TAN
CC: 1) YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.

EXPLANATION OF SERVICE

Copy of the Motion for Production and Inspection of

Docum ents was served to the defendant by registered mail
due to time and distance constraints, and for lack of the
undersigned’s staff who can serve the sam e in person.
FERDINAND A. TAN

j 2. Order^ofExam ination:

Sec. 2, Rule 28 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on when to issue order of examination. It states that:
“Sec. 2. Order o f exam ination. — The order for
exam ination may be made only on m otion for good
cause shown and upon n otice to th e party to be
exam ined and to all other parties, and shall specify
th e tim e, place, manner, conditions and scope o f the
exam ination and the person or persons by whom it is
to be m ade.” (2)

COMMENTS:
Q: When can an order be issued for th e m ental and
physical exam ination of a party ?
A: 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.
 CHAPTER XVI 977
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
place, manner, conditions and scope of the examination and
the person or persons by whom it is to be made.

3. R eport o f Findings:

Sec. 3, Rule 28 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the report of findings of the examination. It states
that:
“Sec. 3. R eport o f fin d in g s. — If requested by the
party exam ined, th e party causing th e exam ination to
be m ade shall deliver to him or her a copy o f a detailed
w ritten report o f th e exam ining physician settin g out
h is or her findings and con clu sion s. After su ch request
and delivery, th e party causin g th e exam ination to be
m ade shall be en titled upon request to receive from
th e party exam ined a like report o f any exam ination,
previously or thereafter m ade, o f th e sam e m en tal or
physical con d ition . If th e party exam ined refuses to
deliver su ch report, th e court on m otion and n otice
m ay m ake an order requiring delivery on su ch term s
as are ju st, and if a physician fails or refuses to m ake
su ch a report, th e court m ay exclude h is or her
testim o n y if offered at th e trial.” (3a)

COMMENTS:
Q: W hat is th e obligation o f th e p arty causing th e
exam in atio n ?
A: 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 or her findings and conclusions.

Q: W hat is th e d u ty o f p a rty req u ested to be exam ined?

A: 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.
978 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is th e effect if th e p arty exam ined refuses to

deliver th e rep o rt?
A: If the party examined refuses to deliver such report, the
court on motion and notice may:
1) Make an order requiring delivery on such terms as
are just; and
2) If a physician fails or refuses to make such a report,
the court may exclude his or her testimony if offered at the
trial.

4. Waiver of Privilege:

Sec. 4, Rule 28 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on waiver of privilege. It states that:
“Sec. 4. Waiver o f p riv ile g e . ------ By requesting
and obtaining a report o f th e exam ination so ordered
or by taking the deposition o f th e exam iner, th e
party exam ined w aives any privilege he or she may
have in that action or any other involving th e sam e
controversy, regarding th e testim on y o f every other
person who has exam ined or m ay thereafter exam ine
him or her in respect o f th e sam e m ental or physical
exam ination.” (4a)

COMMENTS:
Q: What is th e rule on th e waiver o f privilege by th e
p arty exam ined?
A: 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.
 CHAPTER XVI 979
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)

VII. RULE 29: REFUSAL TO COMPLY

WITH THE MODES OF DISCOVERY

A. Basic C oncept:

Q: W hat is th e d u ty o f th e c o u rt in determ in in g th e
san ctio n s to be im posed upon a p arty ?
A: 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.

|_ C a s e I * w :

The application of the rules on modes of discovery rests

upon the sound discretion of the court. In th e sam e vein,
th e d eterm in a tio n o f th e san ctio n to be im posed upon
a p arty who fails to com ply w ith th e m odes of discovery
re s t on th e sam e sound ju d icial 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. (Lanada vs. Court of
Appeals, G.R. No. 102390, February 1, 2002, 375 SCRA 543;
Limos vs. Spouses Odones, G.R. No. 188979, August 11, 2011)

1. Refusal to Answer:

Sec. 1, Rule 29 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on refusal to answer. It states that:
“See. 1. R efusal to answ er. — If a party or other
deponent refuse to answer any q u estion upon oral
exam ination, th e exam ination m ay be com p leted on
980 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

other m atters or a d j o u r n e d as th e proponent o f th e

question m ay prefer. The proponent m ay thereafter
apply to th e proper court o f th e place where th e
deposition is being taken, for an order to com pel an
answer. The sam e procedure m ayb e availed o f when a
party or a w itness refuses to answer any interrogatory
subm itted under Rules 23 or 25.
If the application is granted, th e court »h»ll
require th e refusing party or deponent to answer th e
question or interrogatory and if it also finds that th e
refusal to answer was w ithout substantial ju stification,
it m ay require the refusing party or deponent or the
counsel advising th e refusal, or both o f them , to pay
the proponent th e am ount o f the reasonable expenses
incurred in obtaining th e order, including attorney's
fees.
If th e application is denied and th e court finds
that it was filed w ithout substantial ju stification,
th e court m ay require th e proponent or th e counsel
advising th e filing o f th e application, or both o f them ,
to pay to th e refusing party or deponent th e am ount
of th e reasonable expenses incurred in opposing th e
application, including attorney’s fees." (1)

COMMENTS:
Q: W hat is th e effect if a p arty or deponent refuse to
answ er a question upon oral exam ination?
A: If a party or other deponent refuse 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.
Q: W hat is th e rem edy of th e proponent?
A: 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.
Q: W hat is th e effect if th e application is granted?
A: If the application is granted, the court shall undertake
to:
 CHAPTER XVI 981
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
1) Require the refusing party or deponent to answer
the question or interrogatory; and
2) 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.
Q: W h at i s t h e e f f e c t i f t h e a p p lic a tio n i s d e n ie d ?
A: If the application is denied and the court finds that it
was filed without substantial justification, the court may:
1) 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.

2. C o n tem p t of Court:

Sec. 2, Rule 29 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on contempt of court. It states that:
“Sec. 2. C ontem pt o f court. — If a party or other
w itn ess refuses to be sworn or refuses to answer any
q u estion after being directed to do so by th e court o f
th e place in w hich th e dep osition is being taken, th e
refusal m ay be considered a con tem p t o f th a t cou rt.”
(2)

COMMENTS:
Q: W hen can a p arty or w itn ess be c ited for co n te m p t?
A: 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.
982 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

A person guilty of disobedience of or resistance to a

lawful order of a court or commits any improper conduct
tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice may be punished for indirect
contempt. In particular, Section 4, Rule 3 of the Interim Rules
states that, in addition to a possible treatment of a party as
non-suited or as in default, the sanctions prescribed in the
Rules for failure to avail of, or refusal to comply with, the
modes of discovery shall apply. Under Section 3, Rule 29 of
the Rules, if a party or an officer or managing agent of a party
refuses to obey an order to produce any document or other
things for inspection, copying, or photographing or to permit
it to be done, the court may make such orders as are just.
The enumeration of options given to the court under Section
3, Rule 29 of the Rules is not exclusive, as shown by the
phrase “among others.” Thus, in Republic v. Sandiganbayan,
We said:
To ensure that availment of the modes of discovery is
otherwise untrammeled and efficacious, the law imposes
serious sanctions on the party who refuses to make discovery,
such as dismissing the action or proceeding or part thereof,
or rendering judgment by default against the disobedient
party; contempt of court, or arrest of the party or agent of
the party; payment of the amount of reasonable expenses
incurred in obtaining a court order to compel discovery;
taking the matters inquired into as established in accordance
with the claim of the party seeking discovery; refusal to allow
the disobedient party support or oppose designated claims
or defenses; striking out pleadings or parts thereof; staying
further proceedings. (Capitol Hills Golf & Country Club, Inc.
and Pablo B. Roman, Jr. vs. Manuel O. Sanchez, G.R. No.
182738, February 24, 2014)

3. O ther Consequei

Sec. 3, Rule 29 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on other consequences. It states that:
 CHAPTER XVI 983
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
“Sec. 3. O th er con sequ en ces. — If any party or an
officer or m anaging agent o f a party refuses to obey
an order m ade under S ection 1 o f th is Rule requiring
him or her to answer design ated q u estion s, or an
order under Rule 2 7 to produce any docum ent or
other th in g for in sp ection , copying, or photographing
or to perm it it to be done, or to perm it entry upon
land or other property, or an order m ade under Rule
2 8 requiring him or her to subm it to a physical or
m en tal exam ination, th e court m ay m ake su ch orders
in regard to th e refusal as are ju st, and am ong others
th e following:
a) An order th a t th e m atters regarding
w hich th e q u estion s were asked, or th e character or
description o f th e th in g or land, or th e c o n ten ts o f
th e paper, or th e physical or m ental con d ition o f the
party, or any other design ated facts shall be taken
to be establish ed for th e purpose o f th e action in
accordance w ith th e claim o f th e party obtaining th e
order;
b) An order refusing to allow th e disobedient
party to support or oppose designated claim s or
d efen ses or prohibiting him from introducing in
evid en ce designated docu m en ts or th in gs or item s o f
testim o n y , or from introducing evid en ce o f physical
or m ental condition;
c) An order striking ou t pleading or parts
thereof, or stayin g further proceedings u n til th e order
is obeyed, or dism issin g th e action or proceeding or
any part thereof, or rendering a judgm ent by default
against th e disobedient party; and
d) In lieu o f any o f th e foregoing orders or in
addition th ereto, an order directing th e arrest o f any
party or agent o f a party for disobeying any o f such
orders ex cep t an order to subm it to a physical or
m en tal exam ination .” (3a)

COMMENTS:
Q: W hat are th e orders th a t m ay be issued by th e co u rt
if th e p a rty refuses to obey th e o rd er of th e c o u rt?
A: If any party or an officer or managing agent of a party
refuses to obey an order made under Sec. 1 of this Rule
984 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 purpose 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;
(c) An order striking out pleading 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.
Q: Are th e san ctio n s provided for u n d er Sec. 3, Rule 29
exclusive?
A: No, the enumeration of options given to the court under
Sec. 3, Rule 29 of the Rules is not exclusive, as shown by the
phrase “among others.”.

Case Law:
A person guilty of disobedience of or resistance to a law­
ful order of a court or commits any improper conduct tend­
ing, directly or indirectly, to impede, obstruct, or degrade the
 CHAPTER XVI 985
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
administration of justice may be punished for indirect con-
tempi. In particular, Sec. 4, Rule 3 of the Interim Rules states
that, in addition to a possible treatment of a party as non­
suited or as in default, the sanctions prescribed in the Rules
for failure to avail of, or refusal to comply with, the modes of
discovery shall apply. Under Sec. 3, Rule 29 of the Rules, if
a party or an officer or managing agent of a party refuses to
obey an order to produce any document or other things for
inspection, copying, or photographing or to permit it to be
done, the court may make such orders as are just. The enu­
meration of options given to the court under Sec. 3, Rule 29
of the Rules is not exclusive, as shown by the phrase “among
others.” Thus, in Republic vs. Sandiganbayan, We said:
To ensure that availment of the modes of discovery is
otherwise untrammeled and efficacious, the law imposes
serious sanctions on the party who refuses to make discovery,
such as dismissing the action or proceeding or part thereof, or
rendering judgment by default against the disobedient party;
contempt of court, or arrest of the party or agent of the party:
payment qf the amount of reasonable expenses incurred in
obtaining a court order to compel discovery: taking the matters
inquired into as established in accordance with the claim of the
party seeking discovery; refusal to allow the disobedient party
support or oppose designated claims or defenses; striking
out pleadings or parts thereof; staying further proceedings.
(Capitol Hills Golf 8s Country Club, Inc. and Pablo B. Roman,
Jr. vs. Manuel O. Sanchez, G.R. No. 182738, February 24,
2014)

4. Expenses on Refusal to Admit:

Sec. 4, Rule 29 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule in case of refusal of the party to admit. It states that:
“Sec. 4 . Expenses on refusal to adm it. — If a
party after being served w ith a request under Rule
2 6 to adm it th e genu in en ess o f any docum ent or th e
truth o f any m atter o f fact, serves a sworn denial
th ereof and if th e party requesting th e adm issions
thereafter proves th e genu in en ess o f su ch docum ent
986 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

or th e truth o f any such m atter o f fact, he or sh e may

apply to th e court for an order requiring th e other
party to pay him or her th e reasonable expenses
incurred in making such proof, including reasonable
attorney's fees. Unless th e court finds that there were
good reasons for th e denial or th at adm issions sought
were o f no substantial im portance, such order shall
be issued." (4a)

COMMENTS:
Q: W hat order m ay be issued in case of failure to com ply
w ith th e req u est for adm ission u n d er Rule 26?
A: 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 reasonable 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.

5. Failure o f P arty to A ttend or Serve Answers:

Sec. 5, Rule 29 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on failure of the party to attend or serve answers. It
states that:
“Sec. 5. Failure o f p a r ty to a tten d or serve
answ ers. — If a party or an officer or m anaging agent
o f a party willfully fails to appear before th e officer
who is to take h is or her deposition, after being
served w ith a proper n otice, or fails to serve answers
to interrogatories subm itted under Rule 25 after
proper service o f such interrogatories, th e court on
m otion and n otice, m ay strike out all or any part o f
any pleading o f that party, or dism iss th e action or
proceeding or any part thereof, or enter a judgm ent
 CHAPTER XVI 987
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
by default against th a t party, and in Its d iscretion,
order him or her to pay reasonable exp en ses incurred
by th e other, including attorney’s fee s.” (5a)

COMMENTS:
Q: W hat are th e e ffects in case failu re to a p p ear on
th e ta k in g o f d ep o sitio n o r serv e an sw er to in te rro g a to ­
rie s?
A: If a party or an officer or managing agent of a party
willfully fails to appear before the officer who is to take his
or her 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:
1) Strike out all or any part of any pleading of that
party;
2) Dismiss the action or proceeding or any part thereof;
3) Enter a judgment by default against that party; and
4) In its discretion, order him or her to pay reasonable
expenses incurred by the other, including attorney’s fees.

Case Law:

Thus, in Republic v. Sandiganbayan, the court said

that to ensure that availment of the modes of discovery is
otherwise untrammeled and efficacious, the law imposes
serious sanctions on the party who refuses to make discovery,
such as dismissing the action or proceeding or part thereof,
or rendering judgment by default against the disobedient
party; contempt of court, or arrest of the party or agent of
the party; payment of the amount of reasonable expenses
incurred in obtaining a court order to compel discovery;
taking the matters inquired into as established in accordance
with the claim of the party seeking discovery; refusal to allow
the disobedient party support or oppose designated claims
or defenses; striking out pleadings or parts thereof; staying
further proceedings.
988 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

If adjudged guilty of indirect contempt, the respondent

who committed it against a Regional Trial Court or a court of
equivalent or higher rank may be punished with a fine not
exceeding P30.000, or imprisonment not exceeding 6 months,
or both. In this case, the threatened sanction of possibly
ordering petitioners to solidarity pay a fine of P10,000.00 for
every day of delay in complying with the inspection Order is
well within the allowable range of penalty. (Capitol Hills Gold
& Country Club, Inc. and Pablo B. Roman, Jr. vs. Manuel O.
Sanchez, G.R. No. 182738, February 24, 2014)

Q: Can a ju d g m en t by default be rendered in case of

failure to com ply w ith th e mode of discovery?
A: A default judgment may be rendered for failure of the
defendant to file his answer under the circumstances in Sec.
5, Rule 29?

II Case Law: ||

The CA rightly held that the court a quo erred in

rendering judgment by default against the defendants for
refusal or failure to answer written interrogatories, without
first requiring an application by the proponent to compel an
answer. This is the requisite procedure under Section 1 of
Rule 29 of the 1997 Rules of Civil Procedure. (Jaravata vs.
Karolus, G.R. No. 154988, June 21, 2007)

nettjj
6. Expenses Against th e Republic of th e Philippines:

Sec. 6, Rule 29 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19*10-20) provides
for the rule on the expenses against the republic of the
Philippines. It states that:
u8ec. 6. Expenses a g a in st th e Republic o f the
Philippines. — Expenses and attorney's fe e s are not
to be im posed upon th e Republic o f th e Philippines
under th is Rule." (6)
 CHAPTER XVI 989
MODES OF DISCOVERY AND SANCTIONS
IN CASE OF REFUSAL (RULES 23-29)
COMMENTS:
Q: Can th e expenses an d a tto rn e y ’s fees be Im posed
again st th e R epublic?
A: No, as expressly provided by the above provision of the
rule that, expenses and attorney’s fees are not to be imposed
upon the Republic of the Philippines under this Rule.
 CHAPTER XVII
TRIAL, CONSOLIDATION AND SEVERANCE
OF TRIAL, TRIAL BY COMMISSIONER
AND DEMURRER TO EVIDENCE

I. RULE 30: TRIAL

A. Basic C oncept:

1) Q: W hat is trial?
A: A trial is a judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with his
closing arguments. (Acosta vs. People, 5 SCRA 774)

2) Q: W hat is th e n atu re of tria l?

A: Trial before the court is adversarial in character which
requires the presentation of evidence and examination of
witnesses on the witness stand.
3) Q: W hat is th e d istin ctio n betw een tria l and
hearing?

Trial Hearing

a) Triad is limited only to the a) Hearing is of more broader

presentation of evidence and in its scope as it includes pre­
w itnesses before the court. trial conference, hearing on
the motion, and trial.

990
 CHAPTER XVII 991
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
4) Q: Is tria l n ecessary in o rder to secu re a ju d g m en t?
A: Trial is necessary if there are legal and factual issues
involve in the case which requires presentation of evidence
and witnesses.

5) Q: W hat are th e ex cep tio n s?

A: Trial is no longer necessary in order for the adjudication
of the action in the following instances:*2

a) In civil cases:

1) When the case falls under the Rules on Summary

Procedure in civil cases;
2) When the parties enter into an amicable settlement
or compromise of their claims;
3) In case of dismissal of the action under Rule 16;
4) In case of dismissal of the action under Secs. 1 and
2 of Rule 17;
5) In case of dismissal of the action under Sec. 3 of
Rule 17;
6) In case of dismissal of the action for failure of the
plaintiff to appear during pre-trial conference under Rule 18;
7) In case of judgment on the pleadings under Rule 34;
8) In case of summary judgment under Rule 35;
9) In case of amicable settlement during mediation
before the Philippine Mediation Center;
10) In case of amicable settlement during Judicial
Dispute Resolution (JDR);
11) In case of amicable settlement by virtue of Alternative
Dispute Resolution;
12) When the parties to any action agree, in writing,
upon the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon, without the
introduction of evidence under Sec. 6, Rule 30.
992 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1. K inds c

Q: W hat are th e kinds o f tria l?

A: The kinds of trial under the rules are as follows, to wit:

Q: W hat i s tr ia l o n t h e m e r its ?
A: Trial on the merits - Trial of substantive issue in a case.
(Black’s Law Dictionary, Fifth edition, p. 782)

b) In v erted Trial:

Q: W hat is in v erted tria l?

A: Inverted trial — is a kind of trial in which the accused
admitted the crime but interposes an exculpatory defense,
and the burden of jurisdiction is now on him and he will be
the first to present evidence.

Case Law:

The present rule is a response to the early case of

Alejandro vs. Pepito in which the Court ruled that even
in situations where the plea of self-defense is raised, the
constitutional provision that no person shall be held to answer
for a criminal offense without due process still requires that
in the presentation of evidence the prosecution m ust go
forward and present all its proof in the first instance before
the accused is required to substantiate his defense because
the latter is presumed innocent until the contrary is proved.
The change found in the present rule is based on the theory
that by pleading self-defense, the accused admits the killing
and, therefore, the burden of jurisdiction is now on him. Sec.
13, Rule 119, however, does not require such a change in the
order of trial but only allows it in the discretion of the court.
This can be seen in the use of the permissive “may.” (People
vs. SPOl Romulo Gutierrez, Jr., G.R. No. 116281, February 8,
1999)
 CHAPTER XVII 993
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

c) Trial in absentia:

Q: What is tria l in absentia?

A: Trial in absentia — is a kind of trial conducted after the
accused has been arraigned and he was duly notified of the
trial and his failure to appear thereat is unjustified.

Case Law:

The trial court ignored the fact that Engracio jumped

bail after he had been arraigned, just before the retaking of
evidence commenced. Paragraph (2), Sec. 14, Article III of
the Constitution permits tria l in absentia after the accused
has been arraigned provided he has been duly notified of
the trial and his failure to appear thereat is unjustified. One
who jumps bail can never offer a justifiable reason for his
non-appearance during the trial. Accordingly, after the trial
in absentia, the court can render judgment in the case and
promulgation may be made by simply recording the judgment
in the criminal docket with a copy thereof served upon his
counsel, provided that the notice requiring him to be present
at the promulgation is served through his bondmen or
warden and counsel. (People of the Philippines vs. Engraciano
Valeriano, et al., 226 SCRA 694)
Q: W hat are th e in stan ces where th e presence of th e
accused is required?
A: Presence of the accused is required during arraignment,
during trial for purposes of identification and during
promulgation of judgment.

Case Law:

Trial in absentia allows the accused to be absent at the

trial but not at certain states of the proceeding, to wit: (a) at
arraignment and plea, whether of innocence or of guilt; (b)
during trial whenever necessary for identification purposed;
and (c) at the promulgation of sentence, unless it is for a
994 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

light offense, where the accused may appear by counsel or

representative. (Lauides vs. Court o f Appeals, 324 SCRA 321)

Q: W hat is new tria l or tria l de novo?

A: New Trial or Trial de Novo - It is an application for a relief
requesting that the judge set aside the judgment and order
a new trial on the basis that the trial was improper or unfair
due to specified prejudicial errors that occurred.

e) Public trial:

Q: W hat is public trial?

A: Public trial - A trial held in public, in the presence of the
public, or in a place accessible and open to the attendance of
the public at large, or of a person who may properly admitted.
(Black’s Law Dictionary, Fifth edition, p. 781)

f) Speedy trial:

Q: W hat is speedy tria l?

A: Speedy Trial - a trial conducted according to the law of
criminal procedure and the rules and regulations, free from
vexatious, capricious delays. (Kalaw vs. Apostol, 54 Phil. 857)

Q: W hat is jo in t or consolidated tria l?

A: Joint or consolidated trial — When actions involving a
common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions consolidated;
and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay. (Sec. 1, Rule
31 of the 1997 Rules o f Ciml Procedure)
 CHAPTER XVII 995
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

h) S eparate trial:

Q: W hat is sep arate tria l?

A: Separate trial — The court, in furtherance of convenience
or to avoid prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, or of
any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issue. (Sec. 2, Rule
31 o f the 1997 Rules o f Civil Procedure)

l^ ij^ T ria l^

Q: W hat is tria l by com m issioner?

A: Trial by commissioner - By written consent of both
parties, the court may order any or all of the issues in a case
to be referred to a commissioner to be agreed upon by the
parties or to be appointed by the court. As used in these
Rules, the word “commissioner” includes a referee, an auditor
and an examiner. (Sec. 1, Rule 32 o f the 1997 Rules o f Civil
Procedure)

j) Im p artial trial:

Q: W hat is im p artial tria l?

A: Impartial trial — is a trial conducted by an disinterested
judge without favouring any party.

Q: W hat is an a lte rn a te tria l?

A: An alternate trial is one where parties take turns in
presenting their witnesses respecting the first factual issue
or related issues stated in the order of trial. The party who
bears the burden of proving the affirmative of the issue under
consideration shall be the first to present a witness. (Sec. 24.1.
of A.M. No. 14-03-02-SC, March 8, 2014 on the draft Revised
Rules o f Civil Procedure)
996 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

1) Face-face Trial

Q: W hat is a face to face tria l?

A: A face-to-face trial is one wherein witnesses from the
contending sides appear together before the court, sit face-
to-face around a table in a non-adversarial environment,
and answer questions from the court as well as the parties’
counsels respecting the factual issue under consideration.
(Sec. 24.2. ofA.M. 14-03-02-SC, March 8, 2014 on the draft
Revised Rules of Civil Procedure)

Q: Who h as th e burden o f proof in civil cases?

A: It is a basic rule in civil cases that the party having the
burden of proof must establish his case by a preponderance
of evidence, which simply means evidence which is of greater
weight, or more convincing than that which is offered in
opposition to it,

Case Law:

It is a basic rule in civil cases that the party having the

burden of proof must establish his case by a preponderance
of evidence, which simply means evidence which is of greater
weight, or more convincing than that which is offered in
opposition to it. However, although the evidence adduced by
the plaintiff is stronger than that presented by the defendant,
a judgment cannot be entered in favor of the former, if his
evidence is not sufficient to sustain his cause of action. The
plaintiff must rely on the strength of his own evidence and not
upon the weakness of the defendant’s. (Heirs of the deceased
Carmen Cruz-Zamora vs. Multiwood International, Inc., G.R.
No. 146428, January 19, 2009)
Q: W hat is th e q uantum o f evidence in civil cases?
A: In civil cases, the party having burden of proof must
establish his case by a preponderance of evidence.
 CHAPTER XVII 997
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

^ ^ ro c e d u ra lB a s ^

Sec. 1, Rule 133 o f th e Rules on Evidence provides for

the rule on the quantum of evidence that will be presented in
civil cases. It states that:
“Sec. 1. Preponderance o f evidence, how
determ ined. — In civil cases, th e party having burden
o f proof m ust establish h is case by a preponderance o f
evid en ce. In determ ining where th e preponderance or
superior w eight o f evid en ce on th e issu es involved lies,
th e court m ay consider all th e facts and circum stances
o f th e case, th e w itn e sse s’ m anner o f testify in g , their
in telligen ce, their m eans and opportunity o f knowing
th e facts to w hich there are testifyin g, th e nature
o f th e facts to w hich th e y testify , th e probability or
im probability o f th eir testim on y, their in terest or
want o f in terest, and also their personal credibility so
far as th e sam e m ay legitim ately appear upon th e trial.
The court m ay also consider th e num ber o f w itn esses,
though th e preponderance is not n ecessarily w ith th e
greater num ber.”

|| 2. ' Schedule o f Trial:

Sec. 1, Rule 30 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the schedule of trial. It states that:
uSec. 1. Schedule o f trial. — The parties shall
strictly observe th e scheduled hearings as agreed
upon and s e t forth in th e pre-trial order.
(a) The schedule o f th e trial dates, for both
p lain tiff and defendant, shall be con tin u ou s and
w ithin th e following periods:
i. The in itial presen tation o f p la in tiffs
evid en ce shall be se t n ot later than thirty (30)
calendar days after th e term ination o f th e pre­
trial conference. Plaintiff shall be allowed to
present its evid en ce w ithin a period o f three
(3) m on th s or n in ety (90) calendar days w hich
998 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

shall include th e date o f th e judicial dispute

resolution, if necessary;
ii. The initial presentation o f defendant’s
evidence shall be s e t not later than thirty (30)
calendar days after th e court’s ruling on plaintiff’s
formal offer o f evidence. The defendant shall be
allowed to present its evidence w ithin a period o f
three (3) m onths or n in ety (90) calendar days;
ill. The period for th e presentation o f
evidence on th e third (fourth, etc.)-party claim ,
counterclaim or cross-claim shall be determ ined
by th e court, th e total of w hich shall in no case
exceed ninety (90) calendar days; and
iv. If deem ed necessary, th e court shall
s e t th e presentation o f th e parties’ respective
rebuttal evidence, which shall be com pleted
w ithin a period o f thirty (30) calendar days.
(b) The trial dates may be shortened depending
on th e number o f w itn esses to be presented, provided
that th e presentation o f evidence o f all parties shall
be term inated w ithin a period o f ten (10) m onths
or three hundred (300) calendar days. If there are
no third (fourth, etc.)-party claim , counterclaim or
cross-claim , th e presentation o f evidence shall be
term inated w ithin a period o f six (6) m onths or one
hundred eigh ty (180) calendar days.
(c) The court shall decide and serve cop ies o f its
decision to th e parties w ithin a period not exceeding
nin ety (90) calendar days from th e subm ission o f th e
case for resolution, with or w ithout m em oranda.” (n)

COMMENTS:
Q: W hat is th e rule on th e scheduled hearings?
A: The parties shall strictly observe the scheduled hearings
as agreed upon and set forth in the pre-trial order.

Q: W hat is th e schedule of tria l dates for th e plaintiff

and defendant?
A: The schedule of the trial dates, for both plaintiff and
defendant, shall be continuous and within the following
periods:
 CHAPTER XVII 999
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

a) Evidence for th e plaintiff:

i. The initial presentation of plaintiffs evidence

shall be set not later than thirty (30) calendar days after
the termination of the pre-trial conference. Plaintiff shall be
allowed to present its evidence within a period of three (3)
months or ninety (90) calendar days which shall include the
date of the judicial dispute resolution, if necessary;

b) Evidence for th e defendant:

ii. The initial presentation of defendant’s evidence shall

be set not later than thirty (30) calendar days after the court’s
ruling on plaintiffs formal offer of evidence. The defendant
shall be allowed to present its evidence within a period of
three (3) months or ninety (90) calendar days;

c) Evidence for th e th ird (fourth etc.)-party claim ,

counterclaim , cross-claim :

iii. The period for the presentation of evidence on the

third (fourth, etc.)-party claim, counterclaim or cross-claim
shall be determined by the court, the total of which shall in
no case exceed ninety (90) calendar days; and

d) R ebuttal Evidence:

iv. If deemed necessary, the court shall set the

presentation of the parties’ respective rebuttal evidence,
which shall be completed within a period of thirty (30)
calendar days.
Q: When to te rm in a te th e trial?
A: The trial dates may be shortened depending on the
number of witnesses to be presented, provided that the
presentation of evidence of all parties shall be terminated
within a period of ten (10) months or three hundred (300)
calendar days.
1000 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: When to te rm in a te th e tria l if th e re is no th ird

(fourth, etc.)-party claim , co u n terclaim or cross-claim ?
A: If there are no third (fourth, etc.)-party claim,
counterclaim or cross-claim, the presentation of evidence
shall be terminated within a period of six (6) months or one
hundred eighty (180) calendar days.
Q: When will th e co u rt decide th e case?
A: The court shall decide and serve copies of its decision to
the parties within a period not exceeding ninety (90) calendar
days from the submission of the case for resolution, with or
without memoranda.”

3. A djournm ents an d P ostponem ents:

Sec. 2, Rule 30 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on adjournment and postponement of trial. It states
that:
"Sec. 2. Adjournm ent an d postponem ent. — A
court m ay adjourn a trial from day to day, and to
any stated tim e, as th e expeditious and con ven ien t
transaction o f b u sin ess m ay require, but shall have no
power to adjourn a trial for a longer period than one
m onth for each adjournm ent, nor more than three
m onth s in all, excep t w hen authorized in writing by
th e Court Adm inistrator, Suprem e Court.
The party who caused th e postponem ent is
warned th at th e presen tation o f its evid en ce m ust
still be term inated on th e rem aining dates previously
agreed upon.” (2a)

COMMENTS:
Q: W hat is th e rule on ad jo u rn m en t of tria l?
A: A court may adjourn a trial:
1) From day to day; and
2) To any stated time, as the expeditious and convenient
transaction of business may require;
 CHAPTER XVII 1001
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
3) It shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor more than
three months in all, except when authorized in writing by the
Court Administrator, Supreme Court.

a) A djournm ent of Trial:

Q: W hat is th e period o f adjournm ent of tria l?

A: The court has no power to adjourn a trial for a period
longer than one month from each adjournment, nor more
than three months in all except when authorized in writing
by the Court Administration.

Case Law:

The court has no power to adjourn a trial for a period

longer than one month from each adjournment, nor more
than three months in all except when authorized in writing
by the Court Administration. A Motion for Postponement
should not be filed on the last (day) especially when there
is no reason why it could not have been presented earlier.
(Republic vs. Sandiganbayan, 301 SCRA 237)

Q: W hat is th e consequence o f th e p arty calling for

p o stp o n em en t?
A: The party who caused the postponement is warned that
the presentation of its evidence must still be terminated on
the remaining dates previously agreed upon.
Take note: [Section 3. Requisites of motion to postpone
trial for absence o f evidence. — Deleted]
Q: W hat is th e n atu re o f postp o n em en t of tria l/h e a rin g ?
A: Postponement of trial is merely discretionary.
A postponement is not a matter of right. It is addressed
to the sound discretion of the court. (Garces vs. Valenzuela,
170 SCRA 745)
1002 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: When to move for p o stp o n em en t of hearing?

A: It is the basic duty of the litigant to move for the
postponement before the day of the hearing, so that the court
could order its resetting and timely inform the adverse party
of the new date.

It is the basic duty of the litigant to move for the

postponement before the day of the hearing, so that the court
could order its resetting and timely inform the adverse party
of the new date. This was not the case at bar, for the subject
motion was presented only on the day of the trial without
any justification. We thus hold that the trial court did not
abuse its discretion in denying the motion for postponement.
(Ma. Lourdes C. De Castro vs. Office of the City Prosecutor for
Manila, G.R. No. 172198, June 16, 2009)

4. R equisites o f M otion to Postpone Trial Due to

Illness o f P arty or Counsel: ||
Sec. 3, Rule 30 o f th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the requirement for motion to postpone trial due
to illness of party or counsel. It states that:
"Sec. 3. R equisites o f motion to postpon e tria l
fo r absence o f evidence. — A m otion to postpone a
trial on th e ground o f illn ess o f a party or counsel
m ay be granted if it appears upon affidavit or sworn
certification that th e presence o f such party or
counsel at th e trial is indispensable and that the
character o f h is or her illn ess is such as to render his
or her non-attendance excusable.” (4a)

COMMENTS:
Q: W hat are th e req u irem en ts for th e p ostponem ent of
tria l due to illness of p arty or counsel?
A: A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if the following requirements
are met:
 CHAPTER XVII 1003
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
1) It appears upon affidavit or sworn certification
that the presence of such party or counsel at the trial is
indispensable; and
2) That the character of his or her illness is such as to
render his or her non-attendance excusable.

5. H earing Days and C alendar Call:

Sec. 4, Rule 30 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rules on hearings days and calendar call. It states that:
uSec. 4. Hearing d a y s a n d calen dar c a lt — Trial
shall be held from Monday to Thursday, and courts
shall call th e ca ses at exactly 8:30 a.m . and 2:00 p.m .,
pursuant to Adm inistrative Circular No. 3-99. Hearing
on m otions shall be held on Fridays, pursuant to
Section 8, Rule 15.
All courts shall ensure th e posting o f their court
calendars outside their courtroom s at lea st one (1)
day before th e scheduled hearings, pursuant to OCA
Circular No. 2 5 0 -2 0 1 5 .” (n)

COMMENTS:
Q: W hat days shall tria l be co n d u cted?
A: Trial shall be held from Monday to Thursday, and courts
shall call the cases at exactly 8:30 a.m. and 2:00 p.m.,
pursuant to Administrative Circular No. 3-99.
Q: W hat day will m otio n s be h eard ?
A: Hearing on motions shall be held on Fridays, pursuant
to Sec. 8, Rule 15.
Q: W hat is th e rule on po stin g o f co u rt calendars?
A: All courts shall ensure the posting of their court
calendars outside their courtrooms at least one (1) day before
the scheduled hearings, pursuant to OCA Circular No. 250-
2015.
1004 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

6. O rder o f Trial:

Sec. 5, Rule 30 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the order of trial. It states that:
“Sec. 5. Order o f tr ia l — Subject to the
provisions o f Section 2 of Rule 3 1 , and u n less the
court for special reasons otherw ise directs, th e trial
shall be lim ited to th e issu es stated in th e pre-trial
order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in
support of his com plaint;
(b) The defendant shall then adduce evidence
in support o f his defense, counterclaim , cross-claim
and third-party complaint;
(c) The third-party defendant, if any, shall
adduce evidence of his or her defense, counterclaim ,
cross-claim and fourth-party com plaint;
(d) The fourth-party, and so forth, if any, shall
adduce evidence o f th e m aterial facts pleaded by
them;
(e) The parties against whom any counterclaim
or cross-claim has been pleaded, shall adduce evi­
dence in support o f their defense, in th e order to be
prescribed by the court;
(f) The parties m ay then respectively adduce
rebutting evidence only, unless th e court, for good
reasons and in th e furtherance of ju stice, perm its
them to adduce evidence upon their original case;
and
(g) Upon adm ission o f th e evidence, th e case
shall be deem ed subm itted for decision, unless the
court directs the parties to argue or to subm it their
respective memoranda or any further pleadings.
If several defendants or third-party defendants,
and so forth, having separate defenses appear by
different counsel, th e court shall determ ine the
relative order o f presentation o f their evid en ce.” (5a)
 CHAPTER XVII 1005
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
COMMENTS:
Q: W hat is th e order o f tria l in civil cases?
A: Subject to the provisions of Section 2 of Rule 31, and
unless the court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his
complaint;
(b) The defendant shall then adduce evidence in
support of his defense, counterclaim, cross-claim and third-
party complaint;
(c) The third-party defendant, if any, shall adduce
evidence of his defense, counterclaim, cross-claim and fourth-
party complaint;
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross­
claim has been pleaded, shall adduce evidence in support of
their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon
their original case; and
(g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court directs the
parties to argue or to submit their respective memoranda or
any further pleadings.

Q: W hat is reb u tta l evidence?

A: Rebuttal evidence — Any component evidence to explain,
repel, counteract, or disprove adversary’s proof. It is receivable
only where new matters have been developed by the evidence
of one of the parties and is generally limited to a reply to new
matters. (Ago Timber Corporation vs. Abaya, 07296-SP, July
31, 1978)
1006 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat is su r-reb u ttal evidence?

A: Sur-rebuttal evidence — Evidence in reply to or to rebut
new matter introduced in rebuttal. (Sandakan vs. Sero,
29947-R, January 22, 1964)

Q: W hat is a m em orandum ?
A: Memorandum — is a formal or written summary of
arguments of counsel on issues involved in a litigation.
(National Waterworks & Sewerage System Authority vs.
Montejo, 118 Phil. 212)

Q: Is m em orandum a pleading?
A: No, the Supreme Court held in one case that, “A
memorandum is not a pleading as contemplated under the
Rules of Court.” (San Miguel Corporation vs. E. Razon Inc., CV-
6334, April 24, 1984)

Q: W hat is o rd er o f p re se n ta tio n o f evidence if th e re are

several d efen d an ts or th ird -p arty d efen d an ts?
A: If several defendants or third-party defendants, and so
forth, having separate defenses appear by different counsel,
the court shall determine the relative order of presentation of
their evidence.

Sample F orm No. 1: Memorakpum (Sec. 5. R ule 30)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch _____

MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
 CHAPTER XVII 1007
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COMMISSIONER AND DEMURRER TO EVIDENCE

MR. Y,
Defendant,
x ----------------------- x

MEMORANDUM FOR THE PLAINTIFF

COMES NOW, th e plaintiff, through the undersigned
counsel and u n to this Honorable Court, m ost respectfully
subm its his M em orandum , and avers:
PRELIMINARY STATEMENTS
STATEMENT OF FACTS
ISSUES
DI8CUS8ION
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court th a t the prayer
stated in the Com plaint be granted.
O ther relief and rem edies a s m ay be deem ed ju s t and
equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, April 2, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 E rm ita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Erm ita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 892398167/2-36-20/M la.
Roll No. 38488
MCLE Exem ption No. VI 002142/4-8-19
Tel No. 217-57-47

CC: YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
1008 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

EXPLANATION OF SERVICE
Copy of the Memorandum was served to Defendant’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.
FERDINAND A. TAN

I 7 ~ ° r<u Offer^of^Exhibits^: ||

Sec. 6, Rule 30 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on oral offer of exhibits. It states that:
“Sec. 6. Oral offer o f exh ibits . — The offer o f
evid en ce, th e com m ent or objection th ereto, and th e
court ruling shall be m ade orally in accordance with
S ection s 3 4 to 4 0 o f Rule 132.” (n)

COMMENTS:
Q: How to m ake an offer o f evidence?
A: The offer of evidence, the comment or objection thereto,
and the court ruling shall be made orally in accordance with
Secs. 34 to 40 of Rule 132.
Q: W hat is offer o f evidence?
A: The “offer of evidence” as used in Sec. 35 of the Rules
of Court must be understood to mean presentation or
introduction of evidence. Hence, a document or article is not
evidence when it is simply marked for identification, it must
be formally offered as evidence. (People vs. Whipkey, 12590-
CR, February 6, 1973)

Q: W hat is an objection?
A: It is an argument or reasons presented against an act of
the adverse party or his counsel, or against the determination
by the court in the course of the trial. (Philippine Legal
Encyclopedia, Jose Agaton Sibal, 1998 Ed., p. 635)
 CHAPTER XVII 1009
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G a) Offer o f Evidence (Bar E xam ination 2003)

Sec. 34, Rule 132 o f th e Rules o f C ourt provides for

the rule on offer of evidence. It states that:
“Sec. 3 4 . Offer o f evidence. — The court shall
consider no evid en ce w hich has not been form ally
offered. The purpose for which th e evid en ce is offered
must be specified.M

COMMENTS:
Q: W hat is th e rule on offer o f evidence?
A: The co u rt shall co n sid er no evidence which has not
been formally offered. The purpose for which the evidence is
offered must be specified.

Case Law:

The rules of procedure and jurisprudence do not sanction

the grant of evidentiary value to evidence which was not
formally offered. “It is well to remember that good intentions
do not win cases, evidence does.” (Jose R. Catacutan vs.
People o f the Philippines, G.R. No. 175991, August 31, 2011)

Q: W hat is th e exception to th e rule th a t evidence n o t

form ally offered m ay be considered by th e c o u rt?
A: Evidence has been identified by testimony duly recorded
and that it has been incorporated.

Case Law:

An exception to the rule that courts cannot consider

evidence which has not been formally offered is that where
the evidence has been identified by testimony duly recorded
and that it has been incorporated. (Star Two [SPV-AMC], Inc.
vs. Howard Ko, G.R. No. 1855454, March 23, 2011)
1010 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e req u irem en ts in order th a t th e evidence

shall be considered and given w eight?
A: Evidence must be formally offered specifying the purpose
for which it is being offered.

_ C a se J* aw |J
Pursuant to Section 34, Rule 132 of the Rules of Court,
the RTC as the trial court could consider only the evidence
that had been formally offered; towards that end, the offering
party must specify the purpose for which the evidence was
being offered. The rule would ensure the right of the adverse
party to due process of law, for, otherwise, the adverse
party would not be put in the position to timely object to
the evidence, as well as to properly counter the impact of
evidence not formally offered. As stated in Candido v. Court
of Appeals:
It is settled that courts will only consider as evidence
that which has been formally offered, x x x
A document, or any article for that matter, is not evidence
when it is simply marked for identification; it must be formally
offered, and the opposing counsel given an opportunity to
object to it or cross-examine the witness called upon to prove
or identify it. A formal offer is necessary since judges are
required to base their findings of fact and judgment only—
and strictly—upon the evidence offered by the parties at the
trial. To allow a party to attach any document to his pleading
and then expect the court to consider it as evidence may
draw unwarranted consequences. The opposing party will be
deprived of his chance to examine the document and object
to its admissibility. The appellate court will have difficulty
reviewing documents not previously scrutinized by the court
below. The pertinent provisions of the Revised Rules of Court
on the inclusion on appeal of documentary evidence or
exhibits in the records cannot be stretched as to include such
pleadings or documents not offered at the hearing of the case.
(Emeritu Barut vs. People o f the Philippines, G.R. No. 167454,
September 24, 2014, Bersamin, J.)
 CHAPTER XVII 1011
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Q: W hat are th e ex cep tio n s to form al offer rule?
A: The above rule finds no application when the evidence
was duly identified by testimony duly recorded, or the
evidence was incorporated in the records of the case where
the court takes judicial notice of adjudicative facts pursuant
to Sec. 2, Rule 129 of the Rules of Court, or when there is
judicial admission, or giving credibility on the demeanor of
the witness.

|j^ JC aseJ* w ^

Section 34 of Rule 132 of our Rules on Evidence provides

that the court cannot consider any evidence that has not
been formally offered. Formal offer means that the offering
party shall inform the court of the purpose of introducing
its exhibits into evidence, to assist the court in ruling on
their admissibility in case the adverse party objects. Without
a formal offer of evidence, courts cannot take notice of
this evidence even if this has been previously marked and
identified.
This rule, however, admits of an exception. The Court, in
the appropriate cases, has relaxed the formal-offer rule and
allowed evidence not formally offered to be admitted.
The cases of People v. Napat-a, People v. Mate, and the
Heirs o f Romana Saves, et al. v. The Heirs of Escolastico
Saves, et al., to cite a few, enumerated the requirements
so that evidence, not previously offered, can be admitted,
namely: first, the evidence must have been duly identified by
testimony duly recorded and, second, the evidence m ust have
been incorporated in the records of the case.
In the present case, we find that the requisites for
the relaxation of the formal-offer rule are present. As the
lower courts correctly observed, Godofredo identified the
Certification to File an Action during his cross-examination.
(Federico Sabay vs. People o f the Philippines, G.R. No. 192150,
October 1, 2014, Brion, J.)
1012 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: May th e evidence form ally offered be used in one

case being trie d jo in tly w ith an o th e r case be ad m itted by
th e c o u rt?
A: Yes, a liberal interpretation of the Rules should be
applied since a formally offered evidence in one case which
being jointly tried with another case need not be offered in
the latter case since it will be superfluous.

| Case Law:

This is not the first time that this court relaxed the rule
on formal offer of evidence.
Tan v. Lim arose from two civil Complaints: one for
injunction and another for legal redemption, which were
heard jointly before the trial court. The defendant did not
file a Formal Offer of Evidence in the injunction case and
merely adopted the evidence offered in the legal redemption
case. The trial court held that the defendant’s failure to file
his Formal Offer of Evidence in the injunction case rendered
the plaintiffs evidence therein as uncontroverted. The Court
of Appeals reversed the Decision and was affirmed by this
court. This court ruled that while the trial court’s reasoning
in its Decision was technically sound, a liberal interpretation
was more appropriate and in line with substantial justice:
It may be true that Section 34, Rule 132 of the rules
directs the court to consider no evidence which has not been
formally offered and that under Section 35, documentary
evidence is offered after presentation of testimonial evidence.
However, a liberal interpretation of these Rules would have
convinced the trial court that a separate formal offer of
evidence in Civil Case No. 6518 was superfluous because not
only was an offer of evidence made in Civil Case No. 6521
that was being jointly heard by the trial court, counsel for
Jose Renato Lim had already declared he was adopting these
evidences for Civil Case No. 6518. The trial court itself stated
that it would freely utilize in one case evidence adduced in
the other only to later abandon this posture. Jose Renato
Lim testified in Civil Case No. 6518. The trial court should
have at least considered his testimony since at the time it
 CHAPTER XVII 1013
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was made, the rules provided that testimonial evidence is
deemed offered at the time the witness is called to testify.
Rules of procedure should not be applied in a very rigid,
technical case as they are devised chiefly to secure and not
defeat substantial justice. (Republic of the Philippines vs. Fe
Roa Oimenez and Ignacio Gimenez, G.R. No. 174673, January
11, 2016)
Q: W hat is th e effect if th e evidence is n o t form ally
offered?
A: The court may not consider evidence which is not
formally offered.

| Case Law^J|

Thus, in Dizon vs. Court of Tax Appeals (G.R. No. 140944,

April 30, 2008), it was ruled that no evidentiary value can be
given the pieces of evidence submitted by BIR, since they were
not formally offered. This is the rule under Sec. 34 of Rule
130 of the Rules of Court. While the Court of Tax Appeals is
not strictly governed by the technical rules of evidence, the
presentation of the BIR evidence is not a mere procedural
technicality which may be disregarded considering that it
is the only means by which the Court of Tax Appeals may
ascertain and verify the truth of the claims of the BIR.

Q: Is m ere m arking o f ex hibit sufficient for th e evidence

to be co n sid ered ?
A: No, the mere fact that a particular document is identified
and marked as an exhibit does not mean that it has already
been offered as part of the evidence of a party, except when it
has been identified by testimony duly recorded and must be
incorporated in the record of the case.

| Case Law:

Although in a long line of cases, we have relaxed the

foregoing rule and allowed evidence not formally offered to
be admitted and considered by the trial court, we exercised
1014 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

extreme caution in applying the exceptions to the rule, as

pronounced in Vda. de Onate v. Court of Appeals, thus:
From the foregoing provision, it is clear that for evidence
to be considered, the same must be formally offered.
Corollarily, the mere fact that a particular document is
identified and marked as an exhibit does not mean that it
has already been offered as part of the evidence of a party.
In Interpacific Transit, Inc. v. Aviles [186 SCRA 385, 388-389
(1990)], we had the occasion to make a distinction between
identification of documentary evidence and its formal offer as
an exhibit. We said that the first is done in the course of the
trial and is accompanied by the marking of the evidence as an
exhibit while the second is done only when the party rests its
case and not before. A party, therefore, may opt to formally
offer his evidence if he believes that it will advance his cause
or not to do so at all. In the event he chooses to do the latter,
the trial court is not authorized by the Rules to consider the
same.
However, in People v. Napat-a [179 SCRA 403 (1989)]
citing People v. Mate [103 SCRA 484 (1980)], we relaxed the
foregoing rule and allowed evidence not formally offered to
be admitted and considered by the trial court provided the
following requirements are present, viz.: first, the same
must have been duly identified by testimony duly recorded
and, second, the same m ust have been incorporated in the
records of the case. The evidence may, therefore, be admitted
provided the following requirements are present: (1) the same
must have been duly identified by testimony duly recorded;
and (2) the same must have been incorporated in the records
of the case. Being an exception, the same may only be applied
when there is strict compliance with the requisites mentioned
above; otherwise, the general rule in Section 34 of Rule 132
of the Rules of Court should prevail. (Commissioner Internal
Revenue vs. United Salvage and Towage [Phils.], Inc., G.R. No.
197515, July 2, 2014)

Q: W hen can ap p reciatio n o f evidence be m ade?

A: Appreciation of evidence can be done after formal offer of
evidence.
 CHAPTER XVII 1015
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j[ C ase Law:

While it is true that the appreciation of whether the

signatures of Marquez are genuine or not is subject to the
discretion of the graft court, this discretion, by the very nature
of things, may rightly be exercised only after the evidence
is submitted to the court at the hearing. Evidence cannot
properly be weighed if not exhibited or produced before
the court. Only after evidence is offered and admitted that
the court can appreciate and evaluate it. The prosecution
had already offered its evidence on the matter. The court
should not deny the same right to the defense. (Marquez vs.
Sandiganbayan, G.R. No. 187912-14, January 31, 2011)

Q: Can th e evidence a ttach ed to th e M otion for

R econsideration filed before th e C ourt o f Appeals be
ad m itte d ?
A: Documents only attached to the motion for reconsideration
on the decision of the Court of Appeals for the first time not
admissible.

Case Law:

In Spouses Tan vs. Republic (G.R. No. 177797, December

4, 2008), the Court sustained the Court of Appeals which
refused to consider a document submitted for the first time
by the petitioners when the same was attached to their
motion for their reconsideration of the decision of the Court
of Appeals. In sustaining the appellate court, the Supreme
Court reiterated the rule in Sec. 34 of Rule 132 that “the
court shall consider no evidence which has been formally
offered.” The document should have been offered during the
trial in the Regional Trial Court.

E W h en to Make an Offer o f E v ld en c e|

Sec. 35, Rule 132 o f th e R ules o f C ourt provides for

the rule on offer on when to make an offer. It states that:
1016 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MSec. 3 5 . When to m ake offer. — As regards the

testim on y o f a w itn ess, th e offer m ust be m ade at the
tim e th e w itn ess is called to testify.
Docum entary and object evidence shall be
offered after th e presentation o f a party’s testim on ial
evid en ce. Such offer shall be done orally unless
allowed by th e court to be done in w riting.”

COMMENTS:
Q: W hen to m ake an offer o f evidence?
A: Offer of evidence shall be made as follows, to wit:
1) As regards the testim o n y of a w itn ess, the offer
must be made at the time the witness is called to testify.
2) D ocum entary an d object evidence shall be offered
after the presentation of a party’s testimonial evidence.

Q: How to m ake an offer o f evidence?

A: Such offer shall be done orally unless allowed by the
court to be done in writing.

Q: W hat is th e req u irem en t in case of form al offer of

evidence?
A: In case of formal offer of evidence the purpose of the
evidence must be specified.

Case Law:

The purpose for which the evidence is offered m ust be

specified because such evidence may be admissible for several
purposes under the doctrine of multiple admissibility, or may
be admissible for one purpose and not for another, otherwise
the adverse party cannot interpose the proper objection.
Evidence submitted for one purpose may not be considered
for any other purpose. (People vs. Diano, [CA], 66 O.G. 6405)
 CHAPTER XVII 1017
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c) Rules on O bjection

Sec. 36, Rule 132 o f th e Rules o f C ourt provides for

the rule on objections to the evidence. It states that:
"Sec. 36. Objection. — O bjection to evid en ce
offered orally m ust be m ade Im m ediately after th e
offer Is m ade.
O bjection to a qu estion propounded in th e course
o f th e oral exam ination o f a w itn ess shall be m ade as
soon as th e grounds therefor shall becom e reasonably
apparent.
An offer o f evid en ce In w riting shall be objected
to w ithin three (3) days after n o tice o f th e offer u n less
a different period is allow ed by th e court.
In any case, th e grounds for th e objections m ust
be sp ecified .”
COMMENTS:
Q: How to m ake an objection?
A: Objection under the above rules shall be made as follows,
to wit:
1) Objection to evidence offered orally m ust be made
immediately after the offer is made.
2) Objection to a q u estio n propounded in the course
of the oral examination of a witness shall be made as soon as
the grounds therefor shall become reasonably apparent.
3) An offer of evidence in writing shall be objected to
within three (3) days after notice of the offer unless a different
period is allowed by the court.
4) In any case, the grounds for the objections must be
specified.

Q: How to m ake a n objection on th e adm issibility of

evidence?
A: Party desiring the court to reject the evidence offered, he
must so state in the form of objection.
1018 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Objections to the admissibility of evidence cannot be

raised for the first time on appeal; when a party desires the
court to reject the evidence offered, he must so state in the
form of objection. Without such objection, he cannot raise the
question for the first on appeal. What is of utmost importance
is the preservation of the integrity and evidentiary value
of the seized drugs as the same would be utilized in the
determination of the guilt or innocence of herein appellant.
(People o f the Philippines vs. Baida Salak, G.R. No. 181249,
March 14, 2011)
Q: W hat is th e effect o f failure to m ake a tim ely
objection?
A: Evidence not objected to is deemed waived and
admissible.

Case Law:
1) The rule is that evidence not objected to is deemed
admitted and may be validly considered by the court in
arriving at its judgment. (People o f the Philippines vs. Roberto
Lopez, G.R. No. 188902, February 16, 2011)
2) It is a rule of evidence that any objection against
the admission of any piece of evidence must be made at the
proper time and that if not so made it will be understood
to have been waived. (People of the Philippines vs. Alvin Del
Rosario, G.R. No. 189580, February 9, 2011)
Q: When to m ake an objection on th e adm issibility of
evidence?
A: Objection to the admissibility of evidence must be made
in the trial court, since it cannot be raised for the first time
on appeal.

|| Case Law:
1) Objection to evidence cannot be raised for the first
time on appeal; when a party desires the court to reject the
 CHAPTER XVII 1019
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evidence offered, he m ust so state in the form of an objection.
Without such objection, he cannot raise the question for the
first time on appeal. (People o f the Philippines vs. Gerry Octavio
y Florendo and. Reynaldo Cariho y Martir, G.R. No. 199219,
April 3, 2013)
2) Settled is the rule that objections to the admissibility
of evidence cannot be raised for the first time on appeal.
(People o f the Philippines vs. Salak, G.R. No. 18149, March 14,
2011)

Q: W hen to m ake o b jectio n on th e ad m issib ility of

evidence on th e b asis o f S ta tu te o f F raud?
A: Objection on the admissibility of evidence on the basis
of Statute of Fraud m ust be raised at the earliest possible
opportunity.

^ C a se _ L a w j_ J

The objection on the admissibility of evidence on the

basis of the Statute of Frauds may be waived if not timely
raised. Records tend to support the conclusion that MCLAA
did not, as the Ouanos and the Inocians posit, object to the
introduction of parol evidence to prove its commitment to
allow the former landowners to repurchase their respective
properties upon the occurrence of certain events. (Vda. De
Ouano vs. Republic, G.R. No. 168770, February 9, 2011)

Sec. 38, Rule 132 o f th e Rules o f C ourt provides for

the rule on the ruling of the court on the on the objection. It
provides that:
“Sec. 3 8 . Ruling. — The ruling o f th e court m ust
be given Im m ediately after th e objection Is m ade,
u n less th e court d esires to take a reasonable tim e
to inform its e lf on th e question presented; but th e
ruling shall always be m ade during th e trial and at
su ch as will give th e party against whom it is m ade an
opportunity to m eet th e situ a tio n presented by the
ruling.
1020 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

The reason for su stain in g or overruling an

objection need n ot be stated . However, if th e objection
is based on tw o or m ore grounds, a ruling sustaining
th e objection on one or som e o f them m u st specify
th e ground or grounds relied upon.”

COMMENTS:
Q: W hen can th e c o u rt m ake a ruling on th e objection?
A: The ruling of the court on the objection m ust be given
subject to the following rules:
1) Immediately after the objection is made;
2) Unless the court desires to take a reasonable time
to inform itself on the question presented; but the ruling shall
always be made during the trial and at such time as will give
the party against whom it is made an opportunity to meet the
situation presented by the ruling.
Q: W hat will th e co u rt do in m aking a ruling on th e
objection?
A: The court in making a ruling on the objection may state:
1) The reason for sustaining or overruling an objection
need not be stated.
2) However, if the objection is based on two or more
grounds, a ruling sustaining the objection on one or some of
them m ust specify the ground or grounds relied upon.

Q: W hat is th e effect if no ruling is m ade by th e co u rt

during tria l?
A: If no ruling is made during the course of the trial, counsel
would have no means of knowing whether or not he would be
compelled to meet any evidence at all.

|| Case Law ^J

If no ruling is made during the course of the trial, counsel

would have no means of knowing whether or not he would
be compelled to meet any evidence at all, hence it would
 CHAPTER XVII 1021
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prejudice the substantial rights of his client. (Lopez, etc. vs.
Valdez, 32 Phil. 644)
Q: W hat is th e d u ty o f th e p arty w hen no ruling was
m ade?
A: Party should call the attention of the court to make the
ruling.
[i — ■■ ..........................................

| Case Law:
The failure of the court to make such ruling should be
brought to its attention, failing in which the case cannot be
reopened for a new trial on that ground. (People vs. Singh, et
al., 45 Phil. 676)
Q: W hat is th e effect o f reserv atio n of a ruling w ith o u t
excluding th e evidence?
A: It is tantamount to denial of the objection.

Case Law:

The reservation of a ruling made by the court on

an objection to the admissibility of evidence, without
subsequently excluding the same, amounts to denial of said
objection. (People vs. Tavera, et al., 47 Phil. 645) At any rate,
the courts should consider the evidence only for the purpose
for which it was offered. (People vs. Abalos, etc., et al. [CA], 58
O.G. 5446)
S ample FoRM_Mp._2;_QRg£R_Qf_AgMi8aiPH or E yipbhcb ;

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Sum of Money with Damages
1022 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

MR. Y,
Defendant,
x ------------------------x
ORDER
Acting on the oral formal offer of evidence by the plaintiff
and the com m ents objections thereto by the defendant,
Exhibits “A” and “B” inclusive of sub-m arkings are all
adm itted.
With the adm ission of the foregoing exhibits and the
testim onies of w itnesses, the plaintiff is deem ed to have
formally rested its case.
SO ORDERED.
Pasig City, April 5, 2018.
JUAN DELA CRUZ
Judge

j^ 8 ^ R u le jm ^ T e n ^ EvjdenceT|

Sec. 4 0 , Rule 132 o f th e Rules o f C ourt provides for

the rule on tender of excluded evidence. It states that:
H8 ec. 4 0 . Tender o f exclu ded evidence. — If
d ocum ents or th in gs offered in evid en ce are excluded
by th e court, th e offeror m ay have th e sam e attached
to or m ade part o f th e record. If th e evid en ce excluded
is oral, th e offeror m ay sta te for th e record th e nam e
and other personal circu m stan ces o f th e w itn ess and
th e substance o f th e proposed testim o n y .’*

COMMENTS:
Q: How to m ake a te n d e r o f excluded evidence?
A: Tender of excluded evidence shall be made as follows, to
wit:
1) If docum ents or thlny« offered in evidence are
excluded by the court, the offeror may have the same attached
to or made part of the record.
 CHAPTER XVII 1023
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2) If the evidence excluded is oral, the offeror may state
for the record the name and other personal circumstances of
the witness and the substance of the proposed testimony.

| Case Law:

If documents or things offered in evidence are excluded

by the court, the offeror may have the same attached to or
made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other
personal circumstances of the witness and the substance of
the proposed testimony. (Jose R. Catacutan us. People of the
Philippines, G.R. No. 175991, August 31, 2011)

Q: Can a photocopy o f evidence excluded by th e tria l

co u rt be ad m itted th o u g h te n d ered ?
>

A: No, the original document should have been produced in

the trial court.

Case Law:

While the RTC cannot consider the excluded evidence

to resolve the issues, such evidence may still be admitted
on appeal provided there has been tender of the excluded
evidence under Section 40 of Rule 132 of the Rules of Court.
The PNB cannot simply substitute the mere photocopies of
the subject documents for the original copies without showing
the court that any of the exceptions under Section 3 of Rule
130 of the Rules of Court applies. The PNB’s failure to give a
justifiable reason for the absence of the original documents
and to maintain a record of Anna Marie’s transactions only
shows the PNB’s dismal failure to fulfill its fiduciary duty to
Anna Marie. The Court expects the PNB to “treat the accounts
of its depositors with meticulous care, always having in mind
the fiduciary nature of their relationship.”
Consequently, the CA should not have admitted the
subject documents even if the PNB tendered the excluded
evidence. (Anna Marie Gumabon vs. Philippine National Bank,
G.R. No. 202514, July 25, 2016)
1024 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: W hat are th e req u irem en ts in o rder th a t th e rule on

excluded evidence m ay be relaxed?
A: It m ust be shown that reasonable cause justifying its
non-compliance with the rules and must convince the Court
that the outright dismissal of the petition would defeat the
administration of substantive justice.

Case Law:
tm ----------------------- -=

Section 40, Rule 132 of the Rules of Court provides:

Sec. 40. Tender of excluded evidence. - If documents
or things offered in evidence are excluded by the court,
the offeror may have the same attached to or made part
of the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony.
The rule is that evidence formally offered by a party
may be admitted or excluded by the court. If a party’s offered
documentary or object evidence is excluded, he may move
or request that it be attached to form part of the records of
the case. If the excluded evidence is oral, he may state for
the record the name and other personal circumstances of the
witness and the substance of the proposed testimony. These
procedures are known as offer of proof or tender of excluded
evidence and are made for purposes of appeal. If an adverse
judgment is eventually rendered against the offeror, he may
in his appeal assign as error the rejection of the excluded
evidence.
To be sure, the relaxation of procedural rules cannot be
made without any valid reasons proffered for or underpinning
it. To merit liberality, petitioner must show reasonable
cause justifying its non-compliance with the rules and must
convince the Court that the outright dismissal of the petition
would defeat the administration of substantive justice, x x
x. The desired leniency cannot be accorded absent valid and
compelling reasons for such a procedural lapse, xxx.
 CHAPTER XVII 1025
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
We must stress that the bare invocation of “the interest
of substantial justice” line is not some magic wand that will
automatically compel this Court to suspend procedural rules.
Procedural rules are not to be belittled, let alone dismissed
simply because their non-observance may have resulted in
prejudice to a party’s substantial rights. Utter disregard of
the rules cannot be justly rationalized by harping on the
policy of liberal construction. In this case, as explained
above, petitioner utterly failed to not only comply with the
basic procedural requirement of presenting only the original
copies of its documentary evidence, but also to adhere to
the requirement to properly make its offer of proof or tender
of excluded evidence for the proper consideration of the
appellate tribunal.
Indeed, to apply technical rules strictly against the CIR
because it simply relied on the validity of RR 17-99 but not
be strict with respect to petitioner’s shortcomings, would be
unfair. For this would go against the principle that taxation is
the rule, exemption/refund, the exception. (Fortune Tobacco
Corporation vs. Commissioner of Internal Revenue, G.R. No.
192024, July 1, 2015)

|[ 9. Agreed S ta te m e n to f F a c ts :=

Sec. 7, Rule 30 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the agreed statement of facts. It states that:
“S ec. 7. S ta tem en t o f Judge. — “Sec. 7. Agreed
sta tem en t o f facts. — The parties to any action
m ay agree, in w riting, upon th e facts involved in
th e litigation , and subm it th e case for judgm ent on
th e facts agreed upon, w ithout th e introdu ction o f
evid en ce.
If th e parties agree only on som e o f th e facts in
issu e, th e trial shall be held as to th e disputed facts
in such order as th e court shall prescribe.” (6)
1026 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is rule on agreed s ta te m e n t of facts?
A: The parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the introduction
of evidence.
Q: W hat is th e rule if th e p a rtie s agree only on som e of
th e facts in issu e?
A: If the parties agree only on some of the facts in issue, the
trial shall be held as to the disputed facts in such order as the
court shall prescribe.
Take Note: [Section 7. Statement of judge. — Deleted]

10. S uspension of A ctions

Sec. 8, Rule 30 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on suspension of action. It states that:
“Sec. 8. Suspension o f actions. — The suspension
o f action s shall be governed by th e provisions o f th e
Civil Code and other law s.” (8a)

COMMENTS:
Q: W hat is th e rule in case of su spension of actio n ?
A: The suspension of actions shall be governed by the
provisions of the Civil Code and other laws.

Q: W hat are th e grounds for th e suspension o f th e actio n

u n d er th e Civil Code?
A: Article 2030. Every civil action or proceeding shall be
suspended:
1. If willingness to discuss a possible compromise is
expressed by one or both parties; or
 CHAPTER XVII 1027
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
2. If it appears that one of the parties, before the
commencement of the action or proceeding, offered to discuss
a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil
action or proceeding and similar matters shall be governed
by such provisions of the rules of court as the Supreme Court
shall promulgate. Said rules of court shall likewise provide
for the appointment and duties of amicable compounders.
Q: W hat is th e ground for th e susp en sion of th e actio n ?
A: Section 8, Rule 30 of the Rules of Court], an action
may be suspended only on the ground of a possibility of a
compromise.

Cas

Finally, the Court of Appeals correctly held that:

Under Section 1, Rule 21 of the Revised Rules of Court,
[now Sec. 8, Rule 30 of the Rules of Court], an action may be
suspended only on the ground of a possibility of a compromise,
x x x (Aniceto G. Saludo, Jr. vs. Court of Appeals, et al., G.R.
No. 121404, May 3, 2006)

11. Ju d g e to Receive Evidence; D elegation to

Clerk o f Court:

Sec. 9, Rule 30 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. NO. 19-10-20) provides for
the rule on the reception of evidence. It states that:
"Sec. 9. Judge to receive evidence; delegation
to clerk o f court. — The judge o f th e court where the
case is pending shall personally receive th e evid en ce
to be adduced by th e parties. However, in default or
ex p a r te hearings, and in any case where th e parties
agree in w riting, th e court m ay delegate th e reception
o f evid en ce to its clerk o f court who is a m em ber o f
th e bar. The clerk o f court shall have no power to
rule on objections to any q u estion or to th e adm ission
1028 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

o f exhibits, w hich objections shall be resolved by

th e court upon subm ission o f h is or her report and
th e transcripts w ithin ten (10) calendar days from
term ination o f the hearing.” (9a)

COMMENTS:
Q: Who shall receive th e evidence?
A: The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
Q: Can th e clerk of co u rt receive evidence?
A: Yes, as expressly mandated by the above-cited rule,
however, in default or ex parte hearings, and in any case
where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of
the bar.
Q: To whom th e judge m ay delegate ex-parte reception
of evidence?
A: Delegation of reception of evidence in case of ex parte
hearings should be made to the Clerk of Court who must be
a member of the Bar.

Besides, Sec. 9, Rule 30, 1997 Rules of Civil Procedure is

very specific that: “x x x in default or ex parte hearings, and
in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is
a member of the bar. x x x” As a branch Clerk of Court who
is a non-lawyer, she ought to know under the said rule that
it is only a member of the bar who is authorized to receive
evidence ex parte. Records reveal that there is no order of
the presiding judge showing that she was authorized to act
as such. Respondent even committed further blunder when,
aware of the existing rules and even without prior authority
from the judge, she gave the appearance to the parties
concerned that she is legally collecting commissioner’s fee.
(Maritoni M. Nieva vs. Satumina Alvarez-Edad, A.M. No. P-01-
1459, January 31, 2005)
 CHAPTER XVII 1029
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
Q: Can th e clerk o f c o u rt rule on th e objection m ade by
th e p arty ?
A: The clerk of court shall have no power to rule on objections
to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of
his or her report and the transcripts within ten (10) calendar
days from termination of the hearing.
 II. RULE 31: CONSOLIDATION
OR SEVERANCE

|^ ^ C o n » o U d ^ i o n :

Sec. 1, Rule 31 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on joint hearing or trial. It states that:
"See. 1. Consolidation. — When action s involving
a com m on question o f law or fact are pending before
th e court, it may order a join t hearing or trial o f any
or all th e m atters in issu e in th e actions; it m ay order
all th e action s consolidated; and it m ay m ake such
orders concerning proceedings therein as may tend to
avoid unnecessary co sts or delay." (1)

COMMENTS:
Q: When to consolidate cases or conduct jo in t tria l or
hearing?
A: When actions involving a common question of law or fact
are pending before the court, it may order:
1) A joint hearing or trial of any or all the matters in
issue in the actions;
2) It may order all the actions consolidated; and
3) It may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.

Q: W hat is consolidation?
A; Consolidation is “a procedural device granted to the
court as an aid in deciding how cases in its docket are to be
1030
 CHAPTER XVII 1031
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
tried so that the business of the court may be dispatched
expeditiously and with economy while providing justice to
the parties.” Though there is no hard and fast rule requiring
the consolidation of related cases, Section 1, Rule 31 of the
Rules of Court allows the courts to order the consolidation
of cases involving a common question of law or fact that
are pending before it in order to avoid unnecessary costs or
delay. (Goodland Company Inc. vs. Banco De Oro-Unibank,
Inc. and Goodgold Realty and Development Corporation, G.R.
No. 208543, February 11, 2019)
Q: W hat are th e p rim ary objectives of consolidation of
cases?
A: Consolidation of case, when proper results in the
simplification of proceedings, which saves time, the resources
of parties and the courts, and a possible major abbreviation
of trial.

In the instant case, it would therefore be more keeping

with the demands of law and equity if Civil Case No. 502-M-
2002 will be consolidated with Civil Case No. 438-M-2002
in order that all the issues raised by the parties in both
cases will be properly resolved, and so that the evidence
already presented in the former case will no longer have to
be presented in the latter. Consolidation of case, when proper
results in the simplification of proceedings, which saves
time, the resources of parties and the courts, and a possible
major abbreviation of trial. It is a desirable end to be achieved
within the context of the present state of affairs where court
dockets are full and individual and state finances are limited.
It contributes to the swift dispensation of justice, and is in
accord with the aim of affording the parties a just, speedy and
inexpensive determination of their cases before the courts.
Another compelling argument that weighs heavily in favour of
consolidation is the avoidance of the possibility of conflicting
decisions being rendered by the courts in two or more cases
which would otherwise require a single judgment. (Villarica
Pawnshop Inc. vs. Sps. Roger and Corazon Gemale, G.R. No.
163344, March 20, 2009) '
1032 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Q: When is consolidation proper?

A: As a rule, consolidation applies only to cases pending
before the same judge and not to cases pending in different
branches of the same court or in different courts, except in
the interest of justice, cases pending in different branches of
the court or in different courts may be consolidated.

C ase Law:

Generally, consolidation applies only to cases pending

before the same judge and not to cases pending in different
branches of the same court or in different courts. Yet in
appropriate instances and in the interest of justice, cases
pending in different branches of the court or in different
courts may be consolidated, consistent with the rule in our
jurisdiction that leans toward permitting consolidation of
cases whenever possible and irrespective of the diversity of
the issues for resolution. (Bank of Commerce vs. Hon. Estela
Perlas-Bemabe, etc., et al., G.R. No. 172393, October 20, 2010)

S a m p l e F o r m Wo . 1 : M o t io n F o r C oh so lid a tio m O f T r ia l ( S e c .
l r R ule 3 1 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ra n c h _____

MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Recovery of Possession with Damages
MR. Y,
Defendant.
x
 CHAPTER XVII 1033
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

MOTION FOR CONSOLIDATION OF CASES

AND JOINT TRIAL
COMES NOW, th e defendant, through the undersigned
counsel and u n to this Honorable Court, m ost avers:
1. That the issues Involved In th e above-entitled case
is sim ilar or related to the case pending before RTC, B ranch
N o ._________ which Involves comm on question of law and
of facts;
2. T hat the judgm ent In the above case m ay cause
different resu lt with the case pending before an o th er court
which arises based on com m on question of law and fact;
3. That defendant through counsel m ost respectfully
move for the consolidation of the above case with the case
pending before another sala of the court a n d jo int trial be
conducted based on the above reasons.
WHEREFORE, prem ises considered, it is m ost
respectfully prayed of this Honorable Court order the
consolidation of the above case with the case pending before
an o th er sala of an o th er court a n d joint trial be conducted
based on the above reasons.
O ther relief and rem edies as m ay be deem ed ju s t and
equitable u n d e r the prem ises are likewise prayed for.
Manila, for Pasig City, 2 April 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A, YULO
IBP NO. 510283/2-5-20/M la.
PTR NO. 3 6 4 7 9 8 2 /1-22-120/M la.
MCLE NO. VI -2587-2 -2 0 /1 9
Roll No. 38599

NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
1034 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court o n ______________ ,
2020 a t 8:30 a.m.

HECTOR A. YULO
CC: ATTY. FERDINAND A. TAN
C o u n s e l fo r t h e P la in tif f
4-D, 4th Floor O sm ena Bldg.,
1 Mabini St., Malate Manila

EXPLANATION OF SERVICE
Copy of the Motion Consolidation of Cases and Jo in t
Trial to plaintiffs counsel by registered mail due to time and
distance constraints, and for lack of the undersigned’s staff
who can serve the sam e in person.
HECTOR A. YULO

Q: Will failure to consolidate cases resu lts to dism issal?

A: No. Failure to consolidate a case with a related case does
not necessarily result in the dismissal of the case, unless
there is litis pendentia or res judicata. (Goodland Company
Inc. vs Banco De Oro-Unibank, Inc. and Goodgold Realty and
Development Corporation, G.R. No. 208543, February 11,
2019)

2. S eparate Trials:

Sec. 2, Rule 31 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on separate trials. It states that:
“Sec. 2. S eparate trials. — The court, in
furtherance o f con ven ien ce or to avoid prejudice,
m ay order a separate trial o f any claim , cross-claim ,
counterclaim , or third-party com plaint, or of any
separate issu e or o f any number o f claim s, crossclaim s,
counterclaim s, third-party com plaints or issu e s.” (2)
 CHAPTER XVII 1035
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
COMMENTS:
Q: When can th e co u rt order sep arate tria l?
A: The court, in furtherance of convenience or to avoid
prejudice, may order: lj a separate trial of any claim, cross­
claim, counterclaim, or third-party complaint; or 2) of any
separate issue or of any number of claims, crossclaims,
counterclaims, third-party complaints or issues.
 III. RULE 32: TRIAL BY COMMISSIONER

1. R eference by Consent:

Sec. 1, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) p ro v id es for
th e ru le on refe re n c e to a c o m m is s io n e r by c o n s e n t. It s ta te s
th a t:

“Sec. 1. Reference by c o n se n t — By written

consent o f both parties, the court may order any
or all o f th e Issues in a case to be referred to a
com m issioner to be agreed upon by the parties or to
be appointed by the court. As used in th ese Rules, the
word “com m issioner” includes a referee, an auditor
and an exam iner.” (1)

COMMENTS:

Q: W hat is th e rule on referral of th e case to a

com m issioner by consent of th e p arties?
A: By w ritte n c o n s e n t of b o th p a rtie s , th e c o u rt m ay o rd e r
a n y or all of th e is s u e s in a c a s e to b e refe rre d to a c o m m issio n e r
to be a g re e d u p o n by th e p a rtie s o r to be a p p o in te d by th e
c o u rt.

Q: Who are included under th e word “com m issioner”?

A: As u s e d in th e s e R u les, th e w o rd “co m m issio n e r” in c lu d e s
a referee, a n a u d ito r a n d a n ex am in er.

2. Reference Ordered on Motion:

Sec. 2, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) p ro v id e s for

1036
 CHAPTER XVII 1037
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
the rule on reference to a commissioner by motion. It states
that:
"Sec. 2. Reference ordered on motion. — When
th e parties do n ot con sen t, th e court m ay, upon the
application o f either or o f its own m otion, direct a
reference to a com m issioner in th e following cases:
(a) When th e trial o f an issu e o f fact requires
th e exam ination o f a long account on either side,
in which case th e com m issioner m ay be directed to
hear and report upon th e whole issue or any specific
question involved therein;
(b) When th e taking o f an account is necessary
for th e inform ation o f the court before judgm ent, or
for carrying a judgm ent or order into effect; and
(c) When a question o f fact, other than upon
th e pleadings, arises upon m otion or otherw ise, in
any stage o f a case, or for carrying a judgm ent or
order into effect." (2)

COMMENTS:
Q: When can th e tria l be referred to a com m issioner in
th e absence of co n sen t o f th e p arties?
A: When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a reference to
a commissioner in the following cases:
(a) When the trial of an issue of fact requires the
examination of a long account on either side, in which case
the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the
information of the court before judgment, or for carrying a
judgment or order into effect; and
(c) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any stage of a
case, or for canying a judgment or order into effect.
1038 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

3. O rder of Reference; Powers of Commissioner:

Sec. 3, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides
for the rules on the order of reference and the power of the
commissioner. It states that:
“Sec. 3. Order o f reference; pow ers o f the
commissioner. — When a reference ia made, th e clerk
shall forthwith furnish th e com m issioner with a copy
o f th e order o f reference. The order may specify or
lim it th e powers of th e com m issioner, and m ay direct
him or her to report only upon particular issu es, or to
do or perform particular acts, or to receive and report
evidence only, and m ay fix th e date for beginning and
closing th e hearings and for th e filing o f his or her
report. Subject to th e specifications and lim itations
stated in th e order, th e com m issioner has and shall
exercise th e power to regulate th e proceedings in
every hearing before him or her and to do all acts
and take all m easures necessary or proper for the
efficient performance o f his or her duties under the
order. He or she may issu e subpoenas and subpoenas
duces tecum , swear w itn esses, and unless otherwise
provided in th e order o f reference, he or she may
rule upon th e adm issibility of evidence. The trial or
hearing before him or her shall proceed in all respects
as it would if held before the court." (3a)

COMMENTS:
Q: W hat m ay th e order of th e co urt include after
reference is m ade?
A: When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of reference.
The order may include the following, to wit:
1) Specify or limit the powers of the commissioner;
and
2) May direct him or her to report only upon particular
issues; or
 CHAPTER XVII 1039
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
3) To do or perform particular acts; or
4) To receive and report evidence only; and
5) May fix the date for beginning and closing the
hearings; and
6) For the filing of his or her report.
Q: W hat are th e powers o f th e com m issioner?
A: Subject to the specifications and limitations stated in the
order, the commissioner has and shall exercise the following
powers:
1) To regulate the proceedings in every hearing before
him or her; and
2) To do all acts and take all measures necessary or
proper for the efficient performance of his or her duties under
the order;
3) He or she may issue subpoenas and subpoenas
duces tecum;
4) He may swear witnesses; and
5) Unless otherwise provided in the order of reference,
he or she may rule upon the admissibility of evidence.

Q: W hat is th e rule on hearing before th e com m issioner?

A: The trial or hearing before him or her shall proceed in all
respects as it would if held before the court.

|^4^Q ath^of^C om m issioner:

Sec. 4, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on oath of the commissioner. It states that:
w8ec. 4. Oath o f commissioner. — Before entering
upon his or her duties th e com m issioner shall be
sworn to a faithful and h onest performance thereof.”
(4a)
1040 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: What is th e requirem ent before th e com m issioner
assum e his du ties?
A: Before entering upon his or her duties, the commissioner
shall be sworn to a faithful and honest performance thereof.

5. Proceedings Before th e Com m issioner:

Sec. 5, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the proceedings before a commissioner. It states
that:
“Sec. 5. Proceedings before commissioner.
— Upon receipt of the order o f reference unless
otherw ise provided therein, th e com m issioner shall
forthwith se t a tim e and place for th e first m eeting of
th e parties or their counsel to be held w ithin ten (10)
calendar days after th e date o f the order o f reference
and shall notify the parties or their counsel.” (5a)

COMMENTS:
Q: W hat are th e d uties of a com m issioner upon receipt
of th e order of reference?
A: Upon receipt of the order of reference unless otherwise
provided therein, the commissioner shall forthwith:
1) Set a time and place for the first meeting of the
parties or their counsel to be held within ten (10) calendar
days after the date of the order of reference; and
2) He shall notify the parties or their counsel.

6. Failure o f P arties to Appear Before th e Commissioner:

Sec. 6, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the failure to appear before the commissioner. It
states that:
 CHAPTER XVII 1041
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
“Sec. 6. Failure o f p a rtie s to a ppear before
commissioner. — If a party falls to appear at th e tim e
and place appointed, th e com m issioner m ay proceed
ex parte or, in h is or her discretion, adjourn the
proceedings to a future day, giving n otice to th e absent
party or h is or her counsel o f th e adjournm ent.” (6a)

COMMENTS:
Q: W hat are t h e e f f e c t s i f a p a r ty fa ils t o ap p ear b efo re
t h e c o m m is s io n e r ?
A: If a party fails to appear at the time and place appointed,
the commissioner may:
1) Proceed ex parte hearing or trial; or
2) In his or her discretion, adjourn the proceedings to
a future day, giving notice to the absent party or his or her
counsel of the adjournment.

7. Refusal o f W itness:

Sec. 7, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on refusal of the witness to obey subpoena. It states
that:
“Sec. 7. Refusal o f witness. — The refusal
of a w itn ess to obey a subpoena issued by the
com m issioner or to give evidence before him or
her, shall be deem ed a contem pt o f th e court which
appointed th e com m issioner.” (7a)

COMMENTS:
Q: W hat is th e consequence of refusal of a w itness to
obey a subpoena?
A: The refusal of a witness to obey a subpoena issued by
the commissioner or to give evidence before him or her, shall
be deemed a contempt of the court which appointed the
commissioner.
1042 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

8. Com m issioner Shall Avoid Delays:

Sec. 8, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on delays. It states that:
"Sec. 8. Commissioner sh a ll avoid delays. — It
is th e duty o f the com m issioner to proceed with all
reasonable diligence. Either party, on n otice to the
parties and com m issioner, m ay apply to th e court for
an order requiring th e com m issioner to expedite the
proceedings and to m ake his or her report.” (8a)

COMMENTS:
Q: W hat is th e du ty o f th e com m issioner during trial?
A: It is the duty of the commissioner to proceed with all
reasonable diligence.

Q: W hat is th e rem edy of th e p arty if th e re is delay on

th e p a rt of th e com m issioner?
A: Either party, on notice to the parties and commissioner,
may apply to the court for an order:
1) Requiring the commissioner to expedite the
proceedings; and
2) To make his or her report.

9. R eport of Com m issioner:

Sec. 9, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the report of the commissioner. It states that:
“Sec. 9. R eport o f commissioner. — Upon the
com pletion of th e trial or hearing or proceeding
before th e com m issioner, he or sh e shall file w ith the
court h is or her report in writing upon th e m atters
subm itted to him or her by th e order o f reference.
When his or her powers are not specified or lim ited,
 CHAPTER XVII 1043
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
he or she shall se t forth h is or her findings o f fact and
con clu sions o f law In h is or her report. He or sh e shall
attach thereto all exhibits, affidavits, depositions,
papers and th e transcript, if any, o f th e testim onial
evidence presented before him or her.” (9a)

COMMENTS:
Q: W hat are th e d u ties and responsibilities of th e
com m issioner upon com pletion o f tria l?
A: Upon the completion of the trial or hearing or proceeding
before the commissioner, he or she shall:
1) File with the court his or her report in writing upon
the matters submitted to him or her by the order of reference;
2) When his or her powers are not specified or limited,
he or she shall set forth his or her findings of fact and
conclusions of law in his or her report;
3) He or she shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
testimonial evidence presented before him or her.

|| 10. Notice to P arties o f theJFiling of R eport;

Sec. 10, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on notice to parties of the filing of the report. It states
that:
“Sec. 10. Notice to p a rtie s o f th e filin g o f report.
— Upon th e filing o f th e report, th e parties shall be
notified by th e clerk, and th ey shall be allowed ten
(10) calendar days w ithin w hich to signify grounds
o f objections to the findings o f th e report, if th ey
so desire. O bjections to th e report based upon
grounds which were available to th e parties during
th e proceedings before th e com m issioner, other than
objections to th e findings and con clu sions therein
s e t forth, shall not be considered by th e court u n less
th e y were m ade before th e com m issioner.” (10a)
1044 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: When to file objections on th e rep o rt of th e
com m issioner?
A: Upon the filing of the report, the parties shall be notified
by the clerk, and they shall be allowed ten (10) calendar days
within which to signify grounds of objections to the findings
of the report, if they so desire.
Q: Can th e p arty object on th e ground w hich were
available during th e proceedings?
A: No, as expressly mandated by the above-cited rule,
objections to the report based upon grounds which were
available to the parties during the proceedings before the
commissioner, other than objections to the findings and
conclusions therein set forth, shall not be considered by the
court unless they were made before the commissioner.

11. H earing Upon Report:

Sec. 11, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10*20) provides for
the rule on the hearing on the report. It states that:
“Sec. 11. Hearing upon re p o rt — Upon the
expiration o f th e period o f ten (10) calendar days
referred to in th e preceding sectio n , th e report shall
be se t for hearing, after w hich th e court shall issu e an
order adopting, m odifying, or rejecting th e report in
whole or in part, or recom m itting it with instructions,
or requiring th e parties to present further evidence
before th e com m issioner or th e court." (11a)

COMMENTS:
Q: W hat are th e courses of actio n of th e co u rt on th e
rep o rt o f th e com m issioner?
A: Upon the expiration of the period of ten (10) calendar
days referred to in the preceding section, the report shall be
set for hearing, after which the court shall issue an order, as
follows, to wit:
 CHAPTER XVII 1045
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
1) Adopting, modifying, or rejecting the report in whole
or in part; or
2) Recommitting it with instructions; or
3) Requiring the parties to present further evidence
before the commissioner or the court.

12. S tip u latio n s as to Findings:

Sec. 12, Rule 32 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on stipulation as to the findings. It states that:
wSec. 12. S tip u la tio n s a s to fin din gs. — When
th e parties stipulate th a t a com m issioner’s findings
o f fact shall be final, only q uestions o f law shall
thereafter be consid ered.” (12)

COM MENTS:
Q: W hat is th e rule on stip u latio n o f th e p artie s on th e
com m issio n er's findings?
A: When the parties stipulate that a commissioner’s findings
of fact shall be final, only questions of law shall thereafter be
considered.

Sec. 13, Rule 32 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the compensation of the commissioner. It states
that:
“Sec. 13. Com pensation o f Commissioner. — The
court shall allow th e com m issioner su ch reasonable
com p en sation as th e circu m stan ces o f th e case
warrant, to be taxed as c o sts against th e defeated
party, or apportioned, as ju stic e requires.” (13)
1046 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: W hat is th e e n title m e n t of th e com m issioner?
A: The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party, or apportioned,
as justice requires.

S a m p le F o r m N o . 1 : M o n o s F o r T r i a l by C om m is s i o n e r ( S e c . l f
R u le 3 3 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
B ranch _____
MR. X,
Plaintiff,
- versus - CIVIL CASE N O .______________
For: Recovery of Possession with Damages
MR. Y,
Defendant,
x -------------------------x
MOTION FOR TRIAL BY COMMISSIONER
COMES NOW, th e defendant, through the undersigned
counsel and u n to this Honorable Court, m ost avers:
1. That there are issues to be resolved in the case
th at requires exam ination of volum inous docum ents and
requires highly technical expertise which are necessary and
m aterial to the issue a t b a r th a t will consum e a great time
of the Honorable Office;
2. That in order to save the precious tim e of the court,
an appointm ent of a com m issioner to hear a n d receive the
evidence of the parties is b u t proper and imperative and in
order to aid the Honorable Court in resolving the issues at
hand;
3. That defendant through counsel m ost respectfully
move for the appointm ent of a com m issioner to conduct
hearings and receive evidence, and all necessary powers as
the court may deem it proper.
 CHAPTER XVII 1047
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

WHEREFORE, prem ises considered, it is m ost

respectfully prayed of this Honorable Court th a t the for the
appointm ent of a com m issioner to conduct hearings and
receive evidence, and all necessary powers a s the court may
deem it proper.
O ther relief and rem edies as m ay be deem ed ju s t and
equitable u n d er the prem ises are likewise prayed for.
Manila, for Pasig City, 2 April 2020.

YULO AND ASSOCIATES

Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283/2-5-20/M la.
PTR NO. 3 6 4 7 9 8 2 /1 -2 2 -120/M la.
MCLE NO. VI -2587-2-20/19
Roll No. 38599
NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
GREETINGS:
Please subm it the foregoing motion for the consideration
and approval of the Honorable Court o n ______________ ,
2020 a t 8:30 a.m .
HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for th e Plaintiff
4-D, 4 th Floor O sm ena Bldg.,
1 Mabini St., Malate Manila

EXPLANATION OF SERVICE
Copy of the Motion Appointm ent of a Com m issioner was
served to plaintiffs counsel by registered mail due to time
and distance constraints, and for lack of the undersigned’s
staff who can serve the sam e in person.
HECTOR A. YULO
 IV. RULE 33: DEMURRER TO EVIDENCE

A. B a s ic C o n cep t:

Q: W hat is dem urrer to evidence?

A: A demurrer to evidence is a motion to dismiss on the
ground of insufficiency of evidence. It is a remedy available
to the defendant, to the effect that the evidence produced by
the plaintiff is insufficient in point of law, whether true or
not, to make out a case or sustain an issue. The question
in a demurrer to evidence is whether the plaintiff, by his
evidence in chief, had been able to establish a prima facie
case. (Republic o f the Philippines vs. Alfredo R. De Borja, G.R.
No. 187448, January 9, 2017)
Q: W hat is th e n atu re o f dem urrer to evidence?
A: Demurrer to Evidence authorizes a judgment on the
merits of the case without the defendant having to submit
evidence on his part, as he would ordinarily have to do, if
plaintiffs evidence shows that he is not entitled to the relief
sought.

Case Law:

Demurrer to Evidence authorizes a judgment on the

merits of the case without the defendant having to submit
evidence on his part, as he would ordinarily have to do,
if plaintiffs evidence shows that he is not entitled to the
relief sought. Demurrer, therefore, is an aid or instrum ent
for the expeditious termination of an action, similar to a
motion to dismiss, which the court or tribunal may either
1048
 CHAPTER XVII 1049
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
grant or deny. (Joanie Surposa Uy vs. Jose Ngo Chua, G.R.
No. 183965, September 18, 2009)

Q: Who m ay resolve dem u rrer to evidence?

A: Resolution of demurrer to evidence is within the power of
the trial courts.

Case Law:

In passing upon the sufficiency of the evidence raised

in a demurrer, the court is merely required to ascertain
whether there is competent or sufficient proof to sustain the
judgment. Being considered a motion to dismiss, thus, a
demurrer to evidence must clearly be filed before the court
renders its judgment.
Accordingly, the CA committed reversible error in granting
the demurrer and dismissing the Amended Complaint a quo
for insufficiency of evidence. The demurrer to evidence was
clearly no longer an available remedy to respondents and
should not have been granted, as the RTC had correctly done.
(Nenita Gonzales, et al. vs. Mariano Bugaay and Lucy Bugaay,
G.R. No. 173008, February 22, 2012)

1. D em urrer to Evidence (Bar E xam ination 2013):

Sec. 1, Rule 33 of th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on demurrer to evidence. It states that:
“Sec. 1. Demurrer to evidence. — After the
plaintiff has com pleted th e presentation o f h is or
her evidence, th e defendant m ay m ove for dism issal
on th e ground that upon th e facts and th e law the
plaintiff has shown no right to relief. If h is or her
m otion is denied, he or she shall have th e right to
present evidence. If th e m otion is granted but on
appeal th e order o f dism issal is reversed, he or she
shall be deem ed to have waived th e right to present
evid en ce.” (la)
1050 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

COMMENTS:
Q: When to file dem urrer to evidence?
A: After the plaintiff has completed the presentation of his
or her evidence, the defendant may move for dismissal on
the ground that upon the facts and the law, the plaintiff has
shown no right to relief.

Q: What la th e rem edy of th e defendant w hen his m otion

is denied?
A: If his or her motion is denied, he or she shall have the
right to present evidence.

Q: What is th e effect of granting of th e m otion b u t was

reversed on appeal?
A: If the motion is granted but on appeal the order of
dismissal is reversed, he or she shall be deemed to have
waived the right to present evidence.

Q: Can th e order granting a dem urrer to evidence be

subject o f Rule 45 ?
A: As a rule, an order granting a demurrer to evidence
cannot be the subject of Rule 45 since it cannot entertain
question of facts involving examination of the evidence etc.,
except in the interest of higher justice.

Case Law:

In Felipe vs. MGM Motor Trading Corp., wherein the

propriety of the trial court’s granting of a demurrer to
evidence was the crux of the controversy, we held that a
review of the dismissal of the complaint naturally entailed a
calibration of the evidence on record to properly determine
whether the material allegations of the complaint were amply
supported by evidence. This being so, where the resolution
of a question requires an examination of the evidence, the
credibility of the witnesses, the existence and the relevance
of surrounding circumstances, and the probability of specific
situations, the same involves a question of fact.
 CHAPTER XVII 1051
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE
In this regard, the Court emphasizes that factual
questions are not the proper subject of a petition for review
under Rule 45, the same being limited only to questions of
law. Not being a trier of facts, the Court is not duty bound
to analyze and weigh again the evidence already considered
in the proceedings below. For such reasons, the Court has
consistently deferred to the factual findings of the trial court,
in light of the unique opportunity afforded them to observe
the demeanor and spontaneity of the witness in assessing
the credibility of their testimony.
Furthermore, the failure of petitioner Republic to strictly
comply with Sec. 5(d), Rule 56 of the Rules of Court already
renders its Petition dismissible. Nevertheless, considering
that rules of procedure are subservient to substantive rights,
and in order to finally write finis to this prolonged litigation,
the Court hereby dispenses with the foregoing lapses in the
broader interest of justice. The Court has repeatedly favored
the resolution of disputes on the merits, rather than on
procedural defects. (Republic of the Philippines vs. Alfredo De
Borja, G.R. No. 187448, January 9, 2017)
Q: What are th e distinctions between Demurrer to
evidence in civil cases (Rule 33) and criminal cases (Sec.
23, Rule 119)?

Demurrer in Civil Cases Demurrer in Criminal Cases

(Rule 33) (Sec. 2 3 , Rule 119)

a) In civil cases, such grant a) In criminal_cases, the

is an adjudication on the
merits of the case, which
is definitely subject to
appeal. (Sec. 1, Rule 33)
grant of a demurrer is
tantamount to an acquittal
and the dismissal order
may not be appealed
because this would place
the accused in double
jeopardy. Although the
dismissal order is not
subject to appeal, it is
still reviewable but only
through certiorari under
Rule 65 of the Rules
1052 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR
b) In civil cases, the court
may dismiss the case upon
motion of the defendant.
cl In civil c a s e s , le a v e o f c o u r t
is not required.
d) In a demurrer to evidence
on civil cases, the motion
for demurrer may simply be
filed without leave of court,
but the denial thereof will
still allow the defendant
to present his evidence to
rebut the plaintiffs claim.
of Court. (People vs.
Sandiganbayan, G.R. No.
174504, March 21, 2011)
b) In criminal_cases, the
court may motu proprio
or upon motion of the
accused dismiss the case.
c) In criminal actions, the
motion for demurrer to
evidence may be filed with
or without leave of court.
A motion for leave of court
is filed, in the event that
the court does not find an
insufficiency of evidence
to motu proprio dismiss
the case, within a non-
extendable period of five (5)
days after the prosecution
rests its case. The motion
for leave of court may or
may not be granted, and in
case not, the accused may
still adduce evidence in his
defense, for such denial is
not reviewable by appeal
or even by certiorari.
d) In any event, if the accused
strongly believes that
the prosecution does not
have sufficient evidence
to prove his guilt, he may
nonetheless file a Motion
for Demurrer to evidence
without leave of court, but
takes the risk that, in case
of denial thereof, he is
deemed to have waived his
right to present evidence,
and submits the case for
judgment on the basis
of the evidence for the
prosecution.
 CHAPTER XVII 1053
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

2. A ction on D em urrer to Evidence:

Sec. 2, Rule 33 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the action on the demurrer. It states that:
"Section 2. Action on dem urrer to evidence.
— A demurrer to evid en ce shall be subject to th e
provisions o f Rule 15.
The order denying th e demurrer to evid en ce shall
n o t be subject o f an appeal or p etition for certiorari,
prohibition or m andam us before judgm en t.” (n)

COMMENTS:
Q: W hat are th e req u irem en ts for th e filing of dem urrer
to evidence?
A: A demurrer to evidence shall be subject to the provisions
of Rule 15.
Q: W hat is th e p rohibition on th e order denying th e
dem u rrer to evidence?
A: The order denying the demurrer to evidence shall not be
subject of an appeal or petition for certiorari, prohibition or
mandamus before judgment.

Q: Who m ay resolve th e m otion for d em u rrer to

evidence?
A: Motion to demurrer to Evidence can only be resolved
by the trial court since it is not within the province of the
appellate court to grant or deny the same.

Case Law:

In passing upon the sufficiency of the evidence raised in

a demurrer, the court is merely required to ascertain whether
there is competent or sufficient proof to sustain the judgment.
Being considered a motion to dismiss, thus, a demurrer to
evidence must clearly be filed before the court renders its
judgment.
1054 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Accordingly, the CA committed reversible error in granting

the demurrer and dismissing the Amended Complaint a quo
for insufficiency of evidence. The demurrer to evidence was
clearly no longer an available remedy to respondents and
should not have been granted, as the RTC had correctly done.
(Nenita Gonzales, et at vs. Mariano Bugaay and Lucy Bugaay,
G.R. No. 173008, February 22, 2012)

S a m pl e F o r m N o . 1 ; M o t io n F o r D e m u r r e r T o E v id e n c e ( S e c .
l f R ule 3 3 )

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch ____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO.____________
For: Sum of Money with Damages
MR. Y,
Defendant,
x ---------------------x
MOTION FOR DEMURRER TO EVIDENCE
COMES NOW, the defendant, through the undersigned
counsel and unto this Honorable Court, most avers:
1. That the plaintiff has already formally rested his
case;
2. That the evidence presented by the plaintiff during
the trial of the case are insufficient to establish his cause
of action as alleged in the Complaint since he merely
presented a document denominated as Receipt even without
the signature of the defendant, neither he presented the
original of the alleged promissory note allegedly executed by
the plaintiff and the defendant which will prove the alleged
indebtedness;
3. That defendant through counsel most respectfully
move for leave to file demurrer to evidence, and the attached
demurrer to evidence be admitted.
 CHAPTER XVII 1055
TRIAL, CONSOLIDATION AND SEVERANCE OF TRIAL, TRIAL BY
COMMISSIONER AND DEMURRER TO EVIDENCE

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that the
demurrer to evidence filed by the defendant be granted
ordering the dismissal of the case based on insufficiency of
evidence.
Other relief and remedies as may be deemed just and
equitable under the premises are likewise prayed for.
Manila, for Pasig City, February 20, 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283/2-5-20/Mla.
PTR NO. 3647982/1-22-20/Mla.
MCLE NO. V -2587-2-12/18
Roll No. 38599
NOTICE OF HEARING
TO: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
GREETI NGS:
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on ___ , 2020 at 8:30
a.m.
HECTOR A. YULO

CC: ATTY. FERDINAND A. TAN

Counsel for the Plaintiff
4-D, 4th Floor Osmena Bldg.,
1 Mabini St., Malate Manila
EXPLANATION OF SERVICE
Copy of the Motion for Leave for Demurrer to Evidence
was served to Defendant’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.
HECTOR A. YULO
 CHAPTER XVIII
JUDGMENT ON THE PLEADINGS AND
SUMMARY JUDGMENT

I. RULE 3 4 : JUDGM ENT ON TH E PLEADINGS

1. Ju d g m e n t on th e Pleadings (Bar E xam inations

1 2018, 2016, 2015 an d 2010):

Sec. 1, Rule 3 4 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on judgment on the pleadings. It states that:
“S ec. 1. Judgm ent on th e p leadin gs. — Where
an answer fails to tender an issu e, or otherw ise
adm its th e m aterial allegations o f th e adverse party’s
pleading, th e court m ay, on m otion o f th a t party,
direct judgm ent on su ch pleading. However, in action s
for declaration o f n u llity or annulm ent o f marriage or
for legal separation, th e m aterial facts alleged in th e
com plaint shall always be proved.” (1)

COMMENTS:
Q: When to avail th e rem edy o f m otion for ju d g m en t on
th e pleadings?
A: Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse party’s pleading,
the court may, on motion of that party, direct judgment on
such pleading.
Q: W hat is th e e ssen tial q u estio n in determ in in g for
ju d g m en t on th e pleading?
A: The essential question is whether there are issues
generated by the pleadings.
1056
 CHAPTER XVIII 1057
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Case Law:

Further, in First Leverage and Services Group, Inc. v. Solid

Builders, Inc., this Court held that where a motion for judgment
on the pleadings is filed, the essential question is whether
there are issues generated by the pleadings. In a proper case
for judgment on the pleadings, there is no ostensible issue
at all because of the failure of the defending party’s answer
to raise an issue. The answer would fail to tender an issue,
of course, if it does not deny the material allegations in the
complaint or admits said material allegations of the adverse
party’s pleadings by confessing the truthfulness thereof and/
or omitting to deal with them at all. (Asian Construction and
Development Corporation vs. Sannaedle Co., Ltd., G.R. No.
181676, June 11, 2014)

Q: W hat is th e req u irem en t in cases of a ctio n s for

declaratio n o f n u llity or an n u lm e n t of m arriage?
A: In actions for declaration of nullity or annulment of
marriage or for legal separation, the material facts alleged in
the complaint shall always be proved.

2. A ction on th e M otion for Ju d g m e n t on

th e Pleadings:________________________

Sec. 2, Rule 34 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the action of the court on the motion for judgment
on the pleadings. It states that:
uSec. 2 . Action on m otion f o r Judgm ent on th e
pleadin gs. — The court m ay motu pro p rio or on
m otion render judgm ent on th e pleadings if it is
apparent th a t th e answer fails to ten der an issu e,
or otherw ise adm its th e m aterial allegations o f th e
adverse party’s pleadings. O therwise, th e m otion
shall be subject to th e provisions o f Rule 15 o f th e se
Rules.
1058 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Any action o f th e court on a m otion for judgm ent

on th e pleadings shall n o t be subject o f an appeal or
p etitio n for certiorari, prohibition or m andam us.” (n)

COMMENTS:
Q: W hat a ctio n th e co u rt m ay u n d ertak e if th e answ er
fails to te n d e r an issu e?
A: The court may motu proprio or on motion render judgment
on the pleadings if it is apparent that the answer fails to
tender an issue, or otherwise admits the material allegations
of the adverse party’s pleadings. Otherwise, the motion shall
be subject to the provisions of Rule 15 of these Rules.

Q: W hat is th e effect if th e answ er fails to properly deny

th e m aterial allegations in th e co m p laint in accordance
w ith Sec. 10, Rule 8?
A: The answer fails to tender and issue and can be the
subject to motion for judgment on the pleading.

Case Law:

The essential query in resolving a motion for judgment

on the pleadings is whether or not there are issues of fact
generated by the pleadings. Whether issues of fact exist in
a case or not depends on how the defending party’s answer
has dealt with the ultimate facts alleged in the complaint.
The defending party’s answer either admits or denies the
allegations of ultimate facts in the complaint or other initiatory
pleading. The allegations of ultimate facts the answer admit,
being undisputed, will not require evidence to establish the
truth of such facts, but the allegations of ultimate facts the
answer properly denies, being disputed, will require evidence.
The answer admits the material allegations of ultimate
facts of the adverse party’s pleadings not only when it
expressly confesses the truth of such allegations but also
when it omits to deal with them at all. The controversion of
the ultimate facts must only be by specific denial. Section 10,
Rule 8 of the Rules o f Court recognizes only three modes by
which the denial in the answer raises an issue of fact. The first
 CHAPTER XVIII 1059
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

is by the defending party specifying each material allegation

of fact the truth of which he does not admit and, whenever
practicable, setting forth the substance of the matters upon
which he relies to support his denial. The second applies
to the defending party who desires to deny only a part of
an averment, and the denial is done by the defending party
specifying so much of the material allegation of ultimate facts
as is true and material and denying only the remainder. The
third is done by the defending party who is without knowledge
or information sufficient to form a belief as to the truth of a
material averment made in the complaint by stating so in
the answer. Any material averment in the complaint not so
specifically denied are deemed admitted except an averment
of the amount of unliquidated damages. (Fernando Medical
Enterprises, Inc. vs. Wesleyan University Philippines, Inc.,
G.R. No. 207970, January 20, 2016)

Q: W hat is th e p ro h ib itio n on th e actio n o f th e c o u rt on

th e m o tio n for ju d g m en t on th e pleadings?
A: Any action of the court on a motion for judgment on the
pleadings shall not be subject of an appeal or petition for
certiorari, prohibition, or mandamus.

Q: W hat are th e d istin c tio n s betw een ju d g m en t on th e

pleadings an d sum m ary ju d g m e n t?

Judgm ent on th e Pleadings Sum m ary Judgm ent

(Rule 34)
a) Judgment on the pleadings
is proper when it appears
that there is no genuine
issue between the parties;
(Rule 35)
a) Summary judgment is
proper even if there is
an issue as to damages
recoverable.

b) Judgment on the pleadings b) Summary judgment is

is based exclusively upon
the pleadings without
introduction of evidence;
based not only on the
pleadings but also upon the
affidavits, depositions and
admissions of the parties
showing that, except as to
the amount of damages,
there is no genuine issue.
1060 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

c) Judgment on the pleadings c) Summary judgment is

is available in any action, proper only in actions to
except for annulment of recover a debt, or for a
marriage or legal separation; liquidated sum of money, or
for declaratory relief.
d) A motion for judgment on d) A motion for summary
the pleadings is subject judgment requires prior 10-
only to the 3- day notice day notice. (Sec. 3, Rule 35)
rule (Sec. 4, Rule 15) and
where all the material
averments of the complaint
are admitted, such motion
may even be made ex parte.
(Cruz vs. Oppen, L-23861,
February 17, 1968)

S a m p le F o r m W o. 1 ; M o t i o n F o r J u d g m e n t O h T h e P l e a d m q
(S ec . 1 vR u l e 3 4 )

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
Pasig City
Branch ____
MR. X,
Plaintiff,
- versus - CIVIL CASE NO.___________
For: Sum of Money with Damages
MR. Y,
Defendant,
x --------------------- x
MOTION FOR JUDGMENT ON THE PLEADING
COMES NOW, the plaintiff, through the undersigned
counsel and unto this Honorable Court, most avers:
1. That upon the answer of the defendant, he admits
the material allegation in the complaint that he was indebted
to the plaintiff.
2. That plaintiff is entitled to a judgment as a matter of
law. This is but consonance with Section 1, Rule 34 of the
1997 Rules of Civil Procedure.
 CHAPTER XVIII 1061
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that the
judgment on the pleadings be rendered in the present case.
Other relief and remedies as may be deemed just and
equitable under the premises are likewise prayed for.
Manila, for Pasig City, February 13, 2020.
TLLM LAW & ASSOCIATES
LAW OFFICE
Counsel for the plaintiff
Room 1408 Ermita Center Bldg.,
1350 Roxas Blvd., cor. Sta. Monica St.,
Ermita, Manila
By:
FERDINAND A. TAN
IBP Lifetime No. 014510/2-4-16
PTR NO. 892398167/2-36-20/Mia.
Roll No. 38488
MCLE Exemption No. VI 002142/4-8-19
Tel No. 217-57-47
NOTICE OF HEARING
TO: ATTY. HECTOR A. YULO
Counsel for Defendant
GR E E T I N G S :
Please submit the foregoing motion for the consideration
and approval of the Honorable Court on February 17, 2020,
at 8:30 a.m.
FERDINAND A. TAN
CC: YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
EXPLANATION OF 8ERVICE

Copy of the Motion for Judgment on the Pleadings was

served to Defendant’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.
FERDINAND A. TAN
 II. RULE 35: SUMMARY JUDGMENT

A. Basic C oncept:

Q: W hat is sum m ary ju d g m en t?

A: Summary judgment is a procedural device resorted
to in order to avoid long drawn out litigations and useless
delays. Such judgment is generally based on the facts proven
summarily by affidavits, depositions, pleadings, or admissions
of the parties. (Spouses Ramon Villuga and Mercedita Villuga
vs. Kelly Hardware and Construction Supply, Inc., Represented
by Ernesto vs. Yu, Executive Vice-President and General
Manager, G.R. No. 176570, July 18, 2012)

Q: W hen is sum m ary ju d g m en t proper?

A: Summary judgments are proper when, upon motion of
the plaintiff or the defendant, the court finds that the answer
filed by the defendant does not tender a genuine issue as to
any material fact and that one party is entitled to a judgment
as a matter of law.

Case Law:

Summary judgment is a procedural device resorted to in

order to avoid long drawn out litigations and useless delays.
Relief by summary judgment is intended to expedite or
promptly dispose of cases where the facts appear undisputed
and certain from the pleadings, depositions, admissions and
affidavits. Summary judgments are proper when, upon motion
of the plaintiff or the defendant, the court finds that the answer
filed by the defendant does not tender a genuine issue as to

1062
 CHAPTER XVIII 1063
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

any material fact and that one party is entitled to a judgment

as a matter of law. But if there be a doubt as to such facts
and there be an issue or issues of fact joined by the parties,
neither one of them can pray for a summary judgment. Where
the facts pleaded by the parties are disputed or contested,
proceedings for a summary judgment cannot take the place of
a trial. (Majestic Plus International, Inc. vs. Bullion Investment
and Development Corporation/Majestic Plus International, Inc.
vs. Bullion Investment and Development Corporation, et al.,
G.R. No. 201017/G.R. No. 215289, December 5, 2016)

Q: W hat is th e b asis o f d eterm in in g th e p ro p riety of

m o tio n for sum m ary ju d g m e n t?
A: When the pleadings on file show that there are no genuine
issues of facts to be tried, the Rules of Court allows a party to
obtain immediate relief by way of summary judgment.

Case Law:

Summary judgment is a procedural device resorted to in

order to avoid long drawn out litigations and useless delays.
When the pleadings on file show that there are no genuine
issues of facts to be tried, the Rules of Court allows a party to
obtain immediate relief by way of summary judgment. That
is, when the facts are not in dispute, the court is allowed to
decide the case summarily by applying the law to the material
facts. Conversely, where the pleadings tender a genuine issue,
summary judgment is not proper. A genuine issue is such fact
which requires the presentation of evidence as distinguished
from a sham, fictitious, contrived or false claim. (Atty. Pedro
M. Ferrer vs. Spouses Alfredo Diaz and Imelda Diaz, Reina
Comandante and Spouses Bienvenido Pangan and Elizabeth
Pangan, G.R. No. 165300, April 23, 2010)

Q: W hat is th e te s t in d eterm in in g sum m ary ju d g m e n t?

A: The proper inquiry in this regard would be whether the
affirmative defenses offered by petitioners constitute genuine
issues of fact requiring a full-blown trial.
1064 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

Case Law:

Summary judgment is a procedure aimed at weeding out

sham claims or defenses at an early stage of the litigation. The
proper inquiry in this regard would be whether the affirmative
defenses offered by petitioners constitute genuine issues of
fact requiring a full-blown trial. In a summary judgment, the
crucial question is: are the issues raised by petitioners not
genuine so as to justify a summary judgment? A “genuine
issue” means an issue of fact which calls for the presentation
of evidence, as distinguished from an issue which is fictitious
or contrived, an issue that does not constitute a genuine
issue for trial.
- Furthermore, in Puyat v. Zabarte, we laid down the
requisites for the proper rendition of summary judgment:
For summary judgment to be valid, Rule 34, Section
3 of the Rules of Court, requires (a) that there m ust be no
genuine issue as to any material fact, except for the amount
of damages; and (b) that the party presenting the motion
for summary judgment m ust be entitled to a judgment as a
matter of law. (Dennis Mortel vs. Michael Brundige, G.R. No.
190236, June 15, 2015)
Q: W hat are th e req u isites for sum m ary ju d g m e n t to be
▼alid?
A: The requisites for motion for summary judgment are:
there m ust be no genuine issue as to any material fact, except
for the amount of damages; and he is entitled to judgment as
a matter of law.

Case Law:

In this respect, the Court’s ruling in Nocom vs. Camerino,

is instructive, to wit:
x x x When the pleadings on file show that there are
no genuine issues of fact to be tried, the Rules of Court
allow a party to obtain immediate relief by way of summary
judgment, that is, when the facts are not in dispute, the court
 CHAPTER XVIII 1065
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

is allowed to decide the case summarily by applying the law

to the material facts. Conversely, where the pleadings tender
a genuine issue, summary judgment is not proper. A “genuine
issue" is such issue of fact which requires the presentation of
evidence as distinguished from a sham, fictitious, contrived or
false claim. Sec. 3 of [Rule 35 of the Rules of Court] provides
two requisites for summary judgment to be proper: (1) th e re
m u st be no genuine issue as to an y m aterial fact, except
for th e am o u n t o f dam ages; and (2) th e p a rty p resen tin g
th e m o tio n for sum m ary ju d g m en t m u st be e n title d to
a ju d g m en t as a m a tte r o f law. A summary judgment is
permitted only if there is no genuine issue as to any material
fact and a moving party is entitled to a judgment as a matter
of law. A summary judgment is proper if, while the pleadings
on their face appear to raise issues, the affidavits, depositions,
and admissions presented by the moving party show that
such issues are not genuine. (Spouses Ramon Villuga and
Mercedita Villuga vs. Kelly Hardware and Construction Supply,
Inc., represented by Ernesto vs. Yu, Executive Vice-President
and General Manager, G.R. No. 176570, July 18, 2012)

1. Sum m ary Ju d g m e n t for C laim ant (Bar E xam inations

2016 an d 2015):
Sec. 1, Rule 35 o f th e 2019 A m endm ents to th e 1997
Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on summary judgment for claimant. It states that:
“Sec. 1. Sum m ary Judgm ent f o r claim an t. — A
party seek in g to recover upon a claim , counterclaim ,
or cross-claim or to obtain a declaratory relief m ay,
at any tim e after th e pleading in answer th ereto has
been served, m ove w ith supporting affidavits, deposi­
tio n s or ad m issions for a sum m ary judgm ent in h is or
her favor upon all or any part thereof." (la)

COMMENTS:
Q: When can th e p lain tiff move for sum m ary ju d g m e n t?
A: A party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions
1066 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

for a summary judgment in his or her favor upon all or any

part thereof.
Q: Is m o tio n for sum m ary ju d g m en t available only
during p re-trial conference?
A: No, the filing of the motion for summary judgment may
be filed even prior to pre-trial.

Case Law:

We consider it erroneous on the part of the CA to

declare that “it is only at the pre-trial that the rules allow the
courts to render judgment on the pleadings and summary
judgment, as provided by Section 2(g) of Rule 18 of the Rules
of Court.” The filing of the motion for summary judgment may
be done prior to the pre-trial. Section 1, Rule 35 of the Rules
of Court permits a party seeking to recover upon a claim,
counterclaim, or cross-claim or seeking declaratory relief to
file the motion for a summary judgment upon all or any part
thereof in his favor (and its supporting affidavits, depositions
or admissions) “at any time after the pleading in answer
thereto has been served;” while Section 2 of Rule 35 instructs
that a party against whom a claim, counterclaim, or cross­
claim is asserted or a declaratory relief is sought may file the
motion for summary judgment (and its supporting affidavits,
depositions or admissions) upon all or any part thereof “at
any time.” As such, the petitioners properly filed their motion
for summary judgment prior to the pre-trial (assuming that
they thereby complied with the requirement of supporting
affidavits, depositions or admissions). (Spouses Sergio Pascual
and Emma Pascual vs. First Consolidated Rural Bank [Bohol],
Inc., et al, G.R. No. 202597, February 8, 2017, Bersamin, J.)

2. Sum m ary Ju d g m e n t for D efending Party:

Sec. 2, Rule 35 o f th e 2019 A m endm ents to th e 1997

R ules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on summary judgment for the defending party. It
states that:
 CHAPTER XVIII 1067
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

“Sec. 2. Sum m ary Judgm ent fo r defending p a rty.

— A party against whom a claim , counterclaim , or
cross-claim is asserted or a declaratory relief is sought
m ay, at any tim e, m ove w ith supporting affidavits,
dep osition s or ad m issions for a sum m ary judgm ent in
h is or her favor as to all or any part thereof." (2a)

COMMENTS:
Q: W hen can a d efen d an t move for sum m ary ju d g m en t?
A: A party against whom a claim, counterclaim, or cross­
claim is asserted or a declaratory relief is sought may, at
any time, move with supporting affidavits, depositors or
admissions for a summary judgment in his favor as to all or
any part thereof.
Q: W hat are th e bases o f sum m ary ju d g m en t?
A: A trial court may dispense with trial and proceed to
decide a case if from the pleadings, affidavits, depositions,
and other papers on file, there is no genuine issue as to any
material fact.

Case Law:
There are instances, however, when trial may be
dispensed with. Under Rule 35 of the 1997 Rules of Civil
Procedure, a trial court may dispense with trial and proceed
to decide a case if from the pleadings, affidavits, depositions,
and other papers on file, there is no genuine issue as to any
material fact. In such a case, the judgment issued is called a
summary judgment.
A motion for summary judgment is filed either by the
claimant or the defending party. The trial court then hears
the motion for summary judgment. If indeed there are no
genuine issues of material fact, the trial court shall issue
summary judgment.
An issue of material fact exists if the answer or responsive
pleading filed specifically denies the material allegations of
fact set forth in the complaint or pleading. If the issue of fact
“requires the presentation of evidence, it is a genuine issue
of fact.” However, if the issue “could be resolved judiciously
by plain resort” to the pleadings, affidavits, depositions, and
1068 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

other papers on file, the issue of fact raised is sham, and

the trial court may resolve the action through summary
judgment. (Olivarez Realty Corporation and Dr. Pablo R.
Olivarez vs. Benjamin Castillo, G.R. No. 196251, July 9, 2014)

Q: W hat is th e m eaning o f “genuine issue of fact”?

A: A “genuine issue of fact” is an issue “which requires
the presentation of evidence as distinguished from a sham,
fictitious, contrived, or false claim.

Case Law:
A “genuine issue of fact” is an issue “which requires
the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the facts
as pleaded appear uncontested or undisputed, then there
is no real or genuine issue or question as to the facts, and
summary judgment is called for. The party who moves for
summary judgment has the burden of demonstrating clearly
the absence of any genuine issue of fact, or that the issue
posed in the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial, x x x When the facts as
pleaded by the parties are disputed or contested, proceedings
for summary judgment cannot take the place of trial.” (YKR
Corporation, Ma. Teresa J. Yulo-Gomez, Jose Enrique J. Yulo,
Ma. Antonia J. Yulo-Loyzaga, Jose Manuel J. Yulo, Ma. Carmen
J. Yulo And Jose Maria J. Yulo, Vs. Philippine Agri-Business
Center Corporation, Respondent. [G.R. No. 191863J Republic of
the Philippines, Petitioner vs. Philippine Agri-Business Center
Corporation, G.R. No. 191838, October 20, 2014)
Q: Who h as th e burden o f proving absence of genuine
issu e?
A: The party moving for the summary judgment has the
burden of clearly demonstrating the absence of any genuine
issue of fact.

We remind that the summary judgment is a procedural

technique that is proper under Section 3, Rule 35 of the
 CHAPTER XVIII 1069
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Rules of Court only if there is no genuine issue as to the

existence of a material fact, and that the moving party is
entitled to a judgment as a matter of law. It is a method
intended to expedite or promptly dispose of cases where the
facts appear undisputed and certain from the pleadings,
depositions, admissions, and affidavits on record. The term
genuine issue is defined as an issue of fact that calls for the
presentation of evidence as distinguished from an issue that
is sham, fictitious, contrived, set up in bad faith and patently
unsubstantial so as not to constitute a genuine issue for trial.
The court can determine this on the basis of the pleadings,
admissions, documents, affidavits, and/or counter-affidavits
submitted by the parties to the court. Where the facts pleaded
by the parties are disputed or contested, proceedings for a
summary judgment cannot take the place of a trial. The party
moving for the summary judgment has the burden of clearly
demonstrating the absence of any genuine issue of fact. Upon
the plaintiff rests the burden to prove the cause of action, and
to show that the defense is interposed solely for the purpose
of delay. After the plaintiffs burden has been discharged, the
defendant has the burden to show facts sufficient to entitle
him to defend. (Spouses Sergio Pascual and Emma Pascual
vs. First Consolidated Rural Bank (Bohol/, Inc. et al. G.R. No.
202597, February 8, 2017)

Q: W hat is th e difference betw een genuine issue of fact

from sham , fictitio u s, o r false issu e?
A: A genuine issue of fact is that which requires the
presentation of evidence, as distinguished from a sham,
fictitious, contrived or false issue.

Case Law:

Summary judgment is a procedural device resorted to in

order to avoid long drawn out litigations and useless delays
where the pleadings on file show that there are no genuine
issues of fact to be tried. A “genuine issue” is such issue of fact
which require the presentation of evidence as distinguished
from a sham, fictitious, contrived or false claim. There can be
no summary judgment where questions of fact are in issue
1070 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

or where material allegations of the pleadings are in dispute.

A party who moves for summary judgment has the burden
of demonstrating clearly the absence of any genuine issue of
fact, or that the issue posed in the complaint is so patently
unsubstantial as not to constitute a genuine issue for trial,
and any doubt as to the existence of such an issue is resolved
against the movant. (Maritime Industry Authority [Marina) vs.
Marc Properties Corporation, G.R. No. 173128, February 15,
2012 )

3. M otion an d Proceedings Thereon:

Sec. 3, Rule 35 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides
for the rules on the motion for summary judgment and the
proceedings. It states that:
“Sec. 3. Motion a n d proceedings thereon. —
The m otion shall c ite th e supporting affidavits,
d ep osition s or adm issions, and th e sp ecific law relied
upon. The adverse party m ay file a com m ent and
serve opposing affidavits, dep osition s, or adm issions
w ithin a non-extendible period o f five (5) calendar
days from receipt o f th e m otion. Unless th e court
orders th e conduct o f a hearing, judgm ent sought shall
be rendered forthw ith if th e pleadings, supporting
affidavits, d ep osition s and adm issions on file, show
th at, excep t as to th e am ount o f dam ages, there is
no genuine issu e as to any m aterial fact and th at th e
m oving party is en titled to judgm ent as a m atter o f
law.
Any action o f th e court on a m otion for sum m ary
judgm ent shall not be subject o f an appeal or p etition
for certiorari, prohibition or m andam us.” (3a)

COMMENTS:
Q: W hat are th e req u irem en ts for th e filing of m otion
for sum m ary ju d g m en t?
A: The motion shall cite the supporting affidavits,
depositions or admissions, and the specific law relied upon.
 CHAPTER XVIII 1071
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Q: W hat is th e rem edy o f th e adverse p a rty served w ith

m o tio n for sum m ary ju d g m e n t?
A: The adverse party may file a comment and serve opposing
affidavits, depositions, or admissions within a non-extendible
period of five (5) calendar days from receipt of the motion.

Q: When can th e c o u rt ren d er ju d g m en t on th e

pleadings?
A: Unless the court orders the conduct of a hearing,
judgment sought shall be rendered forthwith if the pleadings,
supporting affidavits, depositions and admissions on file,
show that, except as to the amount of damages, there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.

Summary judgment is a device for weeding out sham

claims or defenses at an early stage of the litigation, thereby
avoiding the expense and loss of time involved in a trial.
According to Section 1, Rule 35 of the Rules of Court,
a party seeking to recover upon a claim may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his/her favor.
According to Section 3 of the same Rule, the judgment
sought shall be rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
The term has been defined as an issue of fact which calls
for the presentation of evidence as distinguished from an
issue which is sham, fictitious, contrived, set up in bad faith
and patently unsubstantial so as not to constitute a genuine
issue for trial. The court can determine this on the basis
of the pleadings, admissions, documents, affidavits and/or
counter-affidavits submitted by the parties before the court.
(Trade and Investment Development Corp. of the Philippines,
1072 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

a.k.a. Philippine Export-Import Credit Agency vs. Philippine

Veterans Bank, G.R. No. 233850, July 1, 2019)

Q: Would tria l be necessary in resolving th e m otion for

sum m ary ju d g m en t?
A: Yes, the court in rendering summary judgment should
consider whether there are genuine issues of fact which
necessitates presentation of evidence.

Case Law:

In the present case, it is true that both parties moved for

the rendition of a summary judgment. However, it is apparent
that the RTC did not comply with the procedural guidelines
when it ordered that the case be submitted for summary
judgment without first conducting a hearing to determine
if there are indeed no genuine issues of fact that would
necessitate trial. The trial court merely required the parties
to submit their respective memoranda, together with their
affidavits and exhibits and, although the parties presented
opposing claims, the RTC hastily rendered a summary
judgment. Undoubtedly, the case at bar may not, even by
the most liberal or strained interpretation, be considered as
one not involving genuine issues of fact which necessitates
presentation of evidence to determine which of the two
conflicting assertions is correct. (Majestic Plus International,
Inc. vs. Bullion Investment and Development Corporation/
Majestic Plus International, Inc. vs. Bullion Investment and
Development Corporation, et al., G.R. No. 201017/G.R. No.
215289, December 5, 2016)
Q: W hat is th e sole fu n ctio n o f th e c o u rt in case of a
m otion for sum m ary ju d g m en t?
A: Upon a motion for summary judgment the court’s sole
function is to determine whether there is an issue of fact to
be tried, and all doubts as to the existence of an issue of fact
must be resolved against the moving party.
Q: W hat is th e purpose o f sum m ary ju d g m e n t? Who has
th e b u rd en o f proof?
 CHAPTER XVIII 1073
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

A: To avoid long drawn out litigations and useless delays,

and the party who move for summary judgment has the
burden of proof.

Case Law:

A summary judgment is allowed only if, after hearing,

the court finds that except as to the amount of damages, the
pleadings, affidavits, depositions and admissions show no
genuine issue as to any material fact and that the movant
is entitled to a judgment as a matter of law. The purpose of
a summary judgment is to avoid drawn out litigations and
useless delays because the facts appear undisputed to the
mind of the court. Such judgment is generally based on the
facts proven summarily by affidavits, depositions, pleadings,
or admissions of the parties. For a full-blown trial to be
dispensed with, the party who moves for summary judgment
has the burden of demonstrating clearly the absence of
genuine issues of fact, or that the issue posed is patently
insubstantial as to constitute a genuine issue. “Genuine
issue” means an issue of fact which calls for the presentation
of evidence as distinguished from an issue which is fictitious
or contrived. As certain facts pleaded were being contested
by the opposing parties, such would not warrant a rendition
of summary judgment. (Atty. Mangontawar M. Gubat vs.
National Power Corporation, G.R. No. 167415, February 26,
2010)

Case Law:

A summary judgment under Rule 35 of the Rules of Court

is a procedural technique that is proper only when there is
no genuine issue as to the existence of a material fact and
the moving party is entitled to a judgment as a matter of
law. It is a method intended to expedite or promptly dispose
of cases where the facts appear undisputed and certain from
the pleadings, depositions, admissions, and affidavits on
record. Upon a motion for summary judgment the court’s
sole function is to determine whether there is an issue of
fact to be tried, and all doubts as to the existence of an issue
of fact must be resolved against the moving party. In other
words, a party who moves for summary judgment has the
1074 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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burden of demonstrating clearly the absence of any genuine

issue of fact, and any doubt as to the existence of such an
issue is resolved against the movant. Thus, in ruling on a
motion for summary judgment, the court should take that
view of the evidence most favorable to the party against whom
it is directed, giving that party the benefit of all favorable
inferences. (Republic of the Philippines vs. Cojuangco, et al,
G.R. No. 180702, April 12, 2011)
Q: Will sum m ary ju d g m en t be available if th e pleading
raised an issue b u t th e affidavits show s th a t th e re is no
genuine issue in th e a c tio n ?
A: Even if on their face the pleadings appear to raise issues,
when the affidavits, depositions and admissions show that
such issues are not genuine, then summary judgment as
prescribed by the Rules m ust ensue as a matter of law.

Case Law:

Under the Rules of Court, a summary judgment may be

rendered where, on motion of a party and after hearing, the
pleadings, supporting affidavits, depositions and admissions
on file show that, “except as to the amount of damages,
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” The
Court explained the concept of summary judgment in Asian
Construction and Development Corporation vs. Philippine
Commercial International Bank:
“Summary or accelerated judgment is a procedural
technique aimed at weeding out sham claims or defenses at
an early stage of litigation thereby avoiding the expense and
loss of time involved in a trial. Under the Rules, summary
judgment is appropriate when there are no genuine issues of
fact which call for the presentation of evidence in a full-blown
trial. Even if on th e ir face th e pleadings appear to raise
issues, w hen th e affidavits, d epositions and adm issions
show th a t su ch issues are n o t genuine, th e n sum m ary
ju d g m en t as prescribed by th e Rules m u st ensue as a
m a tte r o f law. The determinative factor, therefore, in a motion
 CHAPTER XVIII 1075
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

for summary judgment, is the presence or absence of a genuine

issue as to any material fact. [Emphasis supplied.f' (The Heirs
of Nicolas S. Cabigas vs. Melba L. Limbaco, G.R. No. 175291,
July 27, 2011)

Q: W hen will sum m ary ju d g m en t be proper and who h as

th e burden o f proof?
A: A summary judgment is permitted only if there is no
genuine issue as to any material fact and a moving party is
entitled to a judgment as a matter of law, and the movant has
the burden of proving the absence of genuine issue.

A summary judgment is permitted only if there is no

genuine issue as to any material fact and a moving party
is entitled to a judgment as a matter of law. In relation to
this, a genuine issue means an issue of fact which calls
for the presentation of evidence, as distinguished from an
issue which is fictitious or contrived, an issue that does not
constitute a genuine issue for trial. The court can determine
this on the basis of the pleadings, admissions, documents,
affidavits, and/or counter-affidavits submitted by the parties
to the court. Where the facts pleaded by the parties are
disputed or contested, proceedings for a summary judgment
cannot take the place of a trial.
For summary judgment to proceed in lieu of a full-blown
trial, the party who moves for summary judgment has the
burden of demonstrating clearly the absence of genuine issues
of fact, or that the issue posed is patently insubstantial as to
constitute a genuine issue. (Globe Asiatique Realty vs. Union
Bank, G.R. No. 229339, July 29, 2019)

Q: W hat is th e pro h ib itio n on th e actio n of th e c o u rt on

th e m otion for sum m ary ju d g m en t u n d er th e am ended
rules?
A: Any action of the court on a motion for summary
judgment shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus.
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4. Case Not Fully A djudicated on M otion:

Sec. 4, Rule 35 of th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the cases not fully adjudicated on motion. It states
that:
“Sec. 4 . Case not f u lly a d ju d ica ted on motion.
— If on m otion under tills Rule, judgm ent is not
rendered upon th e w hole case or for all th e reliefs
sought and a trial is n ecessary, th e court m ay, by
exam ining th e pleadings and th e evid en ce before it
and by interrogating cou n sel, ascertain w hat m aterial
facts e x ist w ithout substantial controversy, including
th e e x ten t to w hich th e am ount o f dam ages or other
relief is n ot in controversy, and direct such further
proceedings in th e action as are ju st. The facts so
ascertained shall be deem ed established, and th e
trial shall be conducted on th e controverted facts
accordingly.” (4a)

COMMENTS:
Q: W hat is th e rule to be observed in case ju d g m en t is
n o t ren d ered in th e whole case?
A: If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial
is necessary, the court may, by examining the pleadings and
the evidence before it and by interrogating counsel, ascertain
what material facts exist without substantial controversy,
including the extent to which the amount of damages or
other relief is not in controversy, and direct such further
proceedings in the action as are just.

Q: W hat is th e rule if th e case is n o t fully adjudicated on

m otio n ?
A: The court shall render separate judgments if necessary
when some facts existed without controversy, while others
were controverted.
 CHAPTER XVIII 1077
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

Case Law:

Rule 35 on summary judgments, admits of a situation

in which a case is not fully adjudicated on motion, and
judgment is not rendered upon all of the reliefs sought. In
Philippine Business Bank vs. Chua, we had occasion to rule
that a careful reading of its Section 4 reveals that a partial
summary judgment was never intended to be considered a
“final judgment,” as it does not “[put] an end to an action at
law by declaring that the plaintiff either has or has not entitled
himself to recover the remedy he sues for.” In this case, there
was never any final or complete adjudication of Civil Case No.
0141, as the Sandiganbayan’s partial summary judgment in
the Swiss Deposits Decision made no mention of the Arelma
account.
Sec. 4 of Rule 35 pertains to a situation in which
separate judgments were necessary because some facts
existed without controversy, while others were controverted.
However, there is nothing in this provision or in the Rules
that prohibits a subsequent separate judgment after a partial
summary judgment on an entirely different subject matter had
earlier been rendered. There is no legal basis for petitioners’
contention that a judgment over the Swiss accounts bars
a motion for summary judgment over the Arelma account.
(Imelda Romualdez-Marcos vs. Republic o f the Philippines,
G.R. No. 189505, April 25, 2012)

Q: W hat will be th e actio n o f th e c o u rt?

A: The facts so ascertained shall be deemed established,
and the trial shall be conducted on the controverted facts
accordingly.

5. Form o f Affidavits an d S upporting Papers:

Sec. 5, Rule 35 o f th e 2019 A m endm ents to th e 1997

Rules on Civil Procedure (A.M. No. 19-10-20) provides for
the rule on the form of affidavits and supporting papers. It
states that:
1078 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

“Sec. 5. Form o f a ffid a vits an d supporting

papers. — Supporting and opposing affidavits shall be
m ade on personal know ledge, shall se t forth su ch facts
as would be adm issible in evid en ce, and shall show
affirm atively that th e affiant is com p eten t to testify
to th e m atters stated therein. Certified true cop ies of
all papers or parts th ereo f referred to in th e affidavit
shall be attached thereto or served therew ith.” (5)

COMMENTS:
Q: W hat is th e rule on th e affidavits to be filed by th e
m ovant?
A: Supporting and opposing affidavits shall be:
1) Made on personal knowledge;
2) It shall set forth such facts as would be admissible
in evidence; and
3) It shall show affirmatively that the affiant is
competent to testify to the matters stated therein.

Q: W hat is th e a tta c h m e n t in th e affidavit?

A: Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or served
therewith.

|^ ^ A ffid a v its^ in JB a d ^ F a ith :

Sec. 6, Rule 35 o f th e 2019 A m endm ents to th e 1997

Rules on Civil P rocedure (A.M. No. 19-10-20) provides for
the rule on the affidavits in bad faith. It states that:
“Sec. 6. A ffidavits in b a d fa ith . — Should it
appear to its satisfaction a t any tim e th at any o f
th e affidavits presented pursuant to th is Rule are
presented in bad faith, or so lely for th e purpose o f
delay, th e court shall forthw ith order th e offending
party or counsel to pay to th e other party th e
am ount o f th e reasonable exp en ses w hich th e filing
o f th e affidavits caused him or her to incur, including
attorney’s fees, it m ay, after hearing further adjudge
 CHAPTER XVIII 1079
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

th e offending party or cou n sel guilty o f con tem p t.”

(6a)

COMMENTS:
Q: W hat will be th e actio n s o f th e co u rt if th e affidavit
p resen ted is p resen ted in bad faith ?
A: Should it appear to its satisfaction at any time that any of
the affidavits presented pursuant to this Rule are presented
in bad faith, or solely for the purpose of delay, the court shall
forthwith order:
1) Order the offending party or counsel to pay to the
other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including
attorney’s fees;
2) It may, after hearing, further adjudge the offending
party or counsel guilty of contempt.

S a m p le F o r m N o . 1: M onos F o r S u m m ary J u d g m e n t ( R u le 35)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Pasig City
Branch __
MR. X,
Plaintiff,
- versus - CIVIL CASE NO.___________
For: Sum of Money with Damages
MR. Y,
Defendant,
x ---------------------- x
MOTION FOR SUMMARY JUDGMENT

COME8 NOW, the defendant, through the undersigned

counsel and unto this Honorable Court, avers:
1080 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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1. That upon the complaint, answer, Partial Compromise

Agreement by defendants and plaintiff assisted by their
respective counsel, recognizing among others that plaintiff
is entitled to the one-third (1/3) portion of the subject lot as
part of his legitime over the estate of their deceased mother,
Trinidad A. Reyes and as indicated in the location Sketch
prepared by the defendants and submitted before this
Honorable Court, there is no more genuine issue as to any
material fact of the case;
2. That with respect to the rentals collected by the
defendants, it was also agreed by the parties during the
Pre-Trial Conference of the case, that the computation shall
be made from May 26, 1998 up to December 31, 2001 in
order to simplify the computation and the proceedings,
and in which case being the compulsory heir of Trinidad A.
Reyes, plaintiff is entitled to the one-third (1/3) portion of
the collected rentals of the defendants;
3. That plaintiff entitled to a judgment as a matter of
law. This is but consonance with Sections 1 and 3, Rule
35 of the 1997 Rules of Civil Procedure, and the following
rulings of the Honorable Supreme Court, to wit:
(Cite the rulings of the Supreme Court)
WHEREFORE, premises considered, it is most
respectfully prayed of this Honorable Court that a summary
judgment be rendered in the present case.
Other relief and remedies as may be deemed just and
equitable under the premises are likewise prayed for.
Manila, for Pasig City, February 13, 2020.
YULO AND ASSOCIATES
Counsel for the Defendant
Suite 305 Puzon Bldg.,
E. Rodriguez Avenue, Q.C.
By:
HECTOR A. YULO
IBP NO. 510283/2-5-16/Mia.
PTR NO. 3647982/ 1-22-20/Mla.
MCLE NO. V 123578/8-12-15
Roll No. 38599
Tel. No. 521-6137
 CHAPTER XVIII 1081
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

NOTICE OF HEARING

TO: ATTY. FERDINAND A. TAN

Counsel for Plaintiff
GR E E T I N G S :
Please submit the foregoing motion for the consideration
and approval ofthe Honorable Court on_______________ ,
2020, at 2:00 p.m.
HECTOR A. YULO
CC: ATTY. FERDINAND A. TAN
Counsel for the Plaintiff
4-D, 4th Floor Osmena Bldg.,
1991 Mabini St., Malate, Manila
EXPLANATION OF SERVICE

Copy of the Motion for Summary Judgment was served

to Plaintiffs 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.
HECTOR A. YULO
 RULE 144: EFFECTIVENESS

1. E ffectiveness and Coverage o f A pplication:

Rule 144 o f th e 2019 A m endm ents to th e 1997 Rules

on Civil Procedure (A.M. No. 19-10-20) provides for the rule
on the effectivity of the rules. It states that:
“T hese rules shall take effect on January 1,
1964. They shall govern all c a ses brought after th ey
take effect, and also all farther proceedings In ca ses
th en pending, excep t to th e ex ten t th at in th e opinion
o f th e court, their application would n ot be feasible
or would work in ju stice, in w hich even th e former
procedure shall apply.
The 2 0 1 9 Proposed A m endm ents to th e 1997
R ules o f Civil Procedure shall govern all c a ses filed
after th eir effectiv ity on May 1, 2 0 2 0 , and also all
pending proceedings, excep t to th e e x ten t th a t in th e
opinion o f th e court, th eir application would n ot be
feasible or would work in ju stice, in w hich case th e
procedure under w hich th e c a ses were filed shall
govern, (n)
The application and adherence to th e said
am en dm ents shall be subject to periodic m onitoring
by th e Sub-C om m ittee, through th e Office o f th e Court
Adm inistrator (OCA). For th is purpose, all courts
covered by th e said am en dm ents shall accom plish
and subm it a periodic report o f data in a form to be
generated and distributed by th e OCA. (n)
All rules, resolution s, regulations or circulars
o f th e Suprem e Court or parts th ereo f th a t are
in co n sisten t w ith any provision o f th e said
am endm ents are hereby deem ed repealed or m odified
accordingly.” (n)

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 CHAPTER XVIII 1083
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT

COMMENTS:
Q: When is th e effectivity d ate o f th e Rules of C ourt?
A: These rules shall take effect on January 1, 1964.

Q: W hat is th e coverage o f th e app lication of th e Rules

of C ourt?
A: They shall govern all 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 even
the former procedure shall apply.

Q: W hat is th e coverage o f th e application of th e

2019 Proposed A m endm ents to th e 1997 Rules of Civil
P rocedure?
A: The 2019 Proposed Amendments to the 1997 Rules of
Civil Procedure shall govern all cases filed after their effectivity
on May 1, 2020, and also all pending proceedings, except to
the extent that in the opinion of the court, their application
would not be feasible or would work injustice, in which case
the procedure under which the cases were filed shall govern.
(n)
Q: W hat is rule on th e m on ito rin g and adh eren ce to th e
am en d m en ts?
A: The application and adherence to the said amendments
shall be subject to periodic monitoring by the Sub-Committee,
through the Office of the Court Administrator (OCA). For this
purpose, all courts covered by the said amendments shall
accomplish and submit a periodic report of data in a form to
be generated and distributed by the OCA. (n)
 APPENDIX WA”

Republic o f th e Philippines
Suprem e C ourt
M anila

A.M. No. 19-10-20-SC

2 0 1 9 PROPOSED AMENDMENTS TO THE 1997
RULES OF CIVIL PROCEDURE
RESOLUTION
WHEREAS, pursuant to Section 5(5), Article VIII of
the 1987 Constitution, the Supreme Court is vested with
the power to promulgate rules concerning the pleading,
practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the
underprivileged;
WHEREAS, considering the policy of Chief Justice Lucas
P. Bersamin to prioritize the reform of procedural laws in order
to make the disposition of every action and proceeding more
just, speedy and inexpensive, as well as to prevent delays and
to decongest the courts, the Sub-Committee for the Revision
of the 1997 Rules of Civil Procedure was created to review
possible amendments to the Rules per Memorandum Order
No. 04-2019 dated January 14, 2019;
WHEREAS, after several meetings, the reorganized
Committee on the Revision of the Rules of Court has
finally finished amending and updating the 2019 Proposed
Amendments to the 1997 Rules of Civil Procedure, in order to
incorporate the technological advances and developments in
law, jurisprudence and international conventions;
NOW, THEREFORE, acting on the recommendation
of the Chairperson of the Committee on the Revision of the

1084
 APPENDIX “A” 1085
A.M. No. 19-10-20-SC
2019 PROPOSED AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE
Rules of Court, the Court resolves to APPROVE the “2 0 1 9
Proposed A m endm ents to th e 1 9 9 7 Rules o f Civil Procedure. ”
The 2019 Proposed Amendments to the 1997 Rules of Civil
Procedure shall take effect on May 1, 2020, following its
publication in the Official Gazette or in two newspapers of
national circulation
October 15, 2019, Manila, Philippines.
RULE 6 KINDS OF PLEADINGS
S ection 1. Pleadings defined. — Pleadings are the
written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment.
(1)

S ectio n 2. Pleadings allow ed. — The claims of a party

are asserted in a complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him or her.
An answer may be responded to by a reply only if the
defending party attaches an actionable document to the
answer. (2a)
S ection 3. Complaint. — The complaint is the pleading
alleging the plaintiffs or claiming party’s cause or causes
of action. The names and residences of the plaintiff and
defendant must be stated in the complaint. (3a)
S ectio n 4. Answer. — An answer is a pleading in which
a defending party sets forth his or her defenses. (4a)
S ection 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 or 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
1086 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 same cause,
or that the action is barred by a prior judgment. (5a)
S ection 6. Counterclaim. — A counterclaim is any
claim which a defending party may have against an opposing
party. (6)
S ection 7. Compulsory counterclaim. — A compulsoiy
counterclaim is one which, being cognizable by the regular
courts of justice, arises out of or is 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. (7a)
S ectio n 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. (8a)
S ectio n 9. Counter-counterclaims and counter-cross-
claim s. — A counterclaim may be asserted against an original
counter -claimant.
A cross-claim may also be filed against an original cross­
claimant. (9)
S ection 10. Reply. — All new matters alleged in the
answer are deemed controverted. If the plaintiff wishes to
interpose any claims arising out of the new matters so alleged,
such claims shall be set forth in an amended or supplemental
 APPENDIX “A' 1087
A.M. No. 19-10-20-SC
2019 PROPOSED AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE
complaint. However, the plaintiff may file a reply only if the
defending 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 of an actionable document attached to the
reply, the defendant may file a rejoinder if the same is based
solely on an actionable document. (10a)
S ectio n 11. Third, (fourth, e tc .fp a rty complaint. — A
third (fourth, etc.)-party complaint is a claim that a defending
party may, 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 into
the action. (11a)
S ection 12. Bringing new parties. — When the presence
of parties other than those to the original action is required
for the 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. (12)
S ectio n 13. A nsw er to th ird (fourth, e tc .fp a rty
c o m p la in t — A third (fourth, etc.)- party defendant may
allege in his or her answer his or her defenses, counterclaims
or cross-claims, including such defenses that the third
(fourth, etc.)-party plaintiff may have against the original
plaintiffs claim. In proper cases, he or she may also assert
a counterclaim against the original plaintiff in respect of the
latter’s claim against the third-party plaintiff. (13a)
1088 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
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RULE 7 PARTS AND CONTENTS OF A PLEADING

S ection 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)
S ectio n 2. The body. — 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.
(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) H eadings. — 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.
(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. (4)
Section 3. Signature and address. — (a) Every pleading
and other written submissions to the court m ust be signed by
the party or counsel representing him or her.
 APPENDIX “A” 1089
A.M. No. 19-10-20-SC
2019 PROPOSED AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE
(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 tiny 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
a 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 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.
(c) 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. (3a)
S ectio n 4. Verification. — Except when otherwise
specifically required by law or rule, pleadings need not be
under oath or verified.
A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification.
1090 CIVIL PROCEDURE: A GUIDE FOR THE BENCH
AND THE BAR

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 so identified, 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.
A pleading required to be verified 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. (4a)
S ectio n 5. Certification against fo ru m shopping.
— The plaintiff or 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 or she has not
theretofore 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 or her knowledge, no such other action
or claim is pending therein; (b) if there is such other pending
action or claim, a complete statement of the present status
thereof; and (c) if he or she should thereafter learn that the
same or similar action or claim has been filed or is pending,
he or she shall report that fact within five (5) calendar days
therefrom to the court wherein his or her 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 after 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 or her 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. (5a)
S ectio n 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:
(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)
RULE 8 MANNER OF MAKING ALLEGATIONS
IN PLEADINGS
S ectio n 1. In g en era l — Every pleading shall contain
in 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 or her claim or defense,
as the case may be.
If a 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, (la)
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Section 2. Alternative ca u ses o f action or defenses. —

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 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. (2)
S ection 3. Conditions precedent. — In any pleading,
a general averment of the performance or occurrence of all
conditions precedent shall be sufficient. (3)
S ection 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 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
sire peculiarly within the pleader’s knowledge. (4)
Section 5. Fraud, m istake, condition o f the 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. (5)
S ection 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.
(6a)
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.
(7a)
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S ection 8. How to contest such documents. — When
an action or defense is founded upon a written instrument,
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. (8a)
Section 9. Official docum ent or act. — In pleading an
official document or official act, it is sufficient to aver that the
document was issued or the act was done in compliance with
law. (9)
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 or her denial. Where a defendant desires
to deny only a part of an averment, he or she shall 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 averment made to the complaint, he or she shall so
state, and this shall have the effect of a denial. (10a)
Section 11. Allegations not specifically denied
deemed adm itted. — 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. (11a)
S ection 12. Affirm ative 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;
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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 defenses at the
earliest opportunity shall constitute a waiver thereof.
(c) The court shall motu proprio resolve the above
affirmative defenses within thirty (30) calendar days from the
filing of the answer.
(d) As to the other affirmative defenses 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 defenses shall be
resolved by the court within thirty (30) calendar days from
the termination of the summary hearing.
(e) Affirmative defenses, 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, (n)
Section 13. Striking out o f pleading or m atter
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. (12a)

RULE 9 EFFECT OF 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
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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. (1)
S ection 2. Compulsory counterclaim, or cross-claim,
not se t up barred. — A compulsory counterclaim, or a cross­
claim, not set up shall be barred. (2)
S ection 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.
(a) Effect o f order o f default. — A party in default shall
be entitled to notices of subsequent proceedings but shall not
take part in the trial.
(b) R elief from order o f 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.
(c) Effect o f 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.
(d) Extent o f relief to be aw arded. — A judgment
rendered against a party in default shall neither exceed the
amount or be different in kind from that prayed for nor award
unliquidated damages.
(e) Where no defaults allowed. — If the defending
party in an action for annulment or declaration of nullity
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of marriage or for legal separation fails to answer, the court

shall order the Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a collusion between
the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is
not fabricated. (3a)

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Section 1. Am endm ents in general. — Pleadings may
be amended by adding or striking out an allegation or the
name of any party, or by correcting a mistake in the name of a
party or a mistaken 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,
in the most expeditious and inexpensive manner, (la)
Section 2. Am endm ents as a m atter o f right. — A
party may amend his pleading once as a 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. (2a)
Section 3. Am endm ents by leave o f 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 that 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. (3a)
Section 4. Formal amendments. — A defect in the
designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the
court at any stage of the action, at its initiative or on motion,
provided no prejudice is caused thereby to the adverse party.
(4)
Section 5. No am endm ent necessary to conform to
or authorize presentation o f evidence. — 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
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if they had been raised in the pleadings. No amendment of
such pleadings deemed amended is necessary to cause them
to conform to the evidence. (5a)
S ection 6. Supplem ental pleadings. — Upon motion of
a party, the court may, upon reasonable notice and upon such
terms as are just, permit him or her to serve a supplemental
pleading setting forth transactions, occurrences 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. (6a)
Section 7. Filing o f am ended 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. (7)
S ection 8. Effect o f amended pleadings. — An
amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be offered
in evidence against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading shall be
deemed waived. (8a)

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

Section 1. Answer to the com plaint — 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, (la)
S ection 2. Answer o f 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. (2a)
S ection 3. Answer to am ended com plaint — 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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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. (3a)
Section 4. Answer to counterclaim or cross-claim.
— A counterclaim or cross-claim must be answered within
twenty (20) calendar days from service. (4a)
Section 5. Answer to third (fourth, etc.f-party
com plaint — The time to answer a third (fourth, etc.)-party
complaint shall be governed by the same rule as the answer
to the complaint. (5)
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. (6a)
Section 7. Answer to supplem ental com plaint — 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. (7a)
Section 8. Existing counterclaim or cross-claim. — A
compulsory counterclaim or a cross-claim that a defending
party has at the time he or she files his or her answer shall
be contained therein. (8a)
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 or her
pleading may, with the permission of the court, be presented
as a counterclaim or a cross-claim by supplemental pleading
before judgment. (9a)
Section 10. Omitted counterclaim or cross-claim —
When a pleader fails to set up a counterclaim or a cross-
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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. (10a)
Section 11. Extension o f tim e 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. (11a)
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
averred with sufficient definiteness or particularity, to enable
him or her properly to prepare his or her 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, (la)
S ection 2. Action by the co u rt — 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. (2)
Section 3. Compliance w ith 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. (3a)
Section 4. E ffect o f 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
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portions thereof to which the order was directed, or make

such other order as it deems just. (4)
Section 5. S ta y o f period to file responsive pleading.
— After service of the bill of particulars or of a more definite
pleading, or after notice of denied 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 or her motion, which shall not be less than five (5)
calendar days in any event. (5a)
Section 6. B ill a p a rt o f pleading. — A bill of particulars
becomes peirt of the pleading for which it is intended. (6) RULB
13

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 their service, except those for which a different mode
of service is prescribed, (la)
Section 2. Filing and Service, defined. — Filing is the
act of submitting the pleading or other paper to the court.
Service is the act of providing a party with a copy of
the pleading or any other court submission. If a 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 by the opposite
side.
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)
Section. 3. Manner o f 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;
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(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 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 electronic transmission shall
be considered as the date of filing. (3a)
Section 4. Papers required to be file d 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. (4)
Section 5. Modes o f Service. — Pleadings, motions,
notices, orders, judgments, and other court submissions shall
be served personally or by registered mail, accredited courier,
electronic mail, 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. (5a)
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 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 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 residing
therein. (6a)
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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 pre-paid,
and with instructions to the postmaster to return the mail to
the sender after ten (10) calendar days if undelivered. If no
registry service is available in the locality of either the sender
or the addressee, service may be done by ordinary mail. (7a)
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. (8a)
Section 9. Service by electronic m eans and facsim ile.
— 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)
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)
Section 11. Change o f electronic m ail address
or fa csim ile 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
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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)
S ection 12. Electronic m ail and fa csim ile suttfmpt
and title o f 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 o f Judgm ents, 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 resolutions against him or her shall be served
upon him or her also by means of publication at the expense
of the prevailing party. (9a)
Section 14. Conventional service or filin g o f 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;
(c) Appendices and exhibits to motions, or other
documents that are not readily amenable to electronic
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scanning may, at the option of the party filing such, be filed

and served conventionally; and
(d) Sealed and confidential documents or records, (n)
Section 15. Completeness o f service. — Personal
service is complete upon actual delivery. Service by ordinary
mail is complete upon the expiration of ten (10) calendar days
aftdr 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 courier service, 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 of the document is
sent.
Electronic service is not 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 offilin g . — 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 proven by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of
the pleading or court submission;
(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
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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.
(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 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)
S ection 17. Proof o f 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 statement of the date, place,
and manner of service. If the service is made by:
(a) Ordinary mail. - Proof shall consist of an affidavit of
the person mailing stating the 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
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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. (13a)
Section 18. Court-Issued orders and other document*.
— 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)
Section 19. Notice o f 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, may record in the office of the
registry of deeds of the province in which the property is
situated a notice of the pendency of the action. Said notice
shall contain the names of the parties and the object of the
action or defense, and a description of the property in that
province affected thereby. Only from the time of filing such
notice for record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have constructive
notice of the pendency of the action, and only of its pendency
against the parties designated by their real names.
The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the
party who caused it to be recorded. (14a)

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, (la)
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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;
(c) A direction that the defendant answer within the
time fixed by these Rules; and
(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. (2a)
Section 3. By whom served. — The summons may be
served by the sheriff, his or her deputy, or other proper court
officer, and in case of failure of service of summons by them,
the court may authorize the plaintiff — to serve the 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
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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)
Section 4. Validity o f sum mons and issuance o f
alias sum m ons — 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 complaint. Substituted service
should be in the manner provided under Section 6 of this
Rule. (5a)
Section 5. Service in person on defendant. —Whenever
practicable, the summons shall be served by handing 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. (6a)
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;
(b) By leaving copies of the summons at the 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
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(d) By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court. (7a)
S ection 7. Service upon e n tity w ithout 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. (8a)
S ectio n 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 who is deemed 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. (9a)
S ectio n 9. Service consistent w ith international
conventions. — Service may be made through methods which
are consistent with established international conventions to
which the Philippines is a party, (n)
S ectio n 10. Service upon m inors and incom petents.
— 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)
S ection 11. Service upon spouses. — When spouses
are sued jointly, service of summons should be made to each
spouse individually, (n)
S ectio n 12. Service upon dom estic 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,
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managing partner, general manager, corporate 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. (1 la)
S ection 13. Duty o f counsel o f 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)
S ection 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.
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;
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(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;
(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)
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. (13a)
S ection 16. Service upon defendant whose id en tity
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. (14a)
Section 17. E xtraterritorial 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
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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 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. (15a)
S ection 18. R esidents tem porarily out o f 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. (16a)
Section 19. Leave o f co u rt — 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. (17a)
S ection 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 plaintiffs 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
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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 be found. (4a)
Section 21. Proof o f sendee. — 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. (18a)
S ection 22. Proof o f 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. (19a)
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)
RULE 15 MOTIONS
Section 1. Motion defined. — A motion is an application
for relief other than by a pleading. (1)
S ection 2. Motions m u st be in writing. — All motions
shall be in writing except those made in open court or in the
course of a hearing or trial.
A motion made in open court or in the course of a hearing
or trial should immediately be resolved in open court, after
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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
that the matter be heard wholly or partly on oral testimony or
depositions. (2a)
S ection 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. (3)
(Section 4. Hearing of motion. — Deleted]
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)
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
statutoiy 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 14) Other similar motions.
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(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)
S ection 6. Notice o f 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.
(5a)
Section 7. Proof o f service necessary. — No written
motion shall be acted upon by the court without proof of
service thereof, pursuant to Section 5(b) hereof. (6a)
S ection 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)
S ection 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. (8a)
S ection 10. Motion fo r leave. — A motion for leave to
file a pleading or motion shall be accompanied by the pleading
or motion sought to be admitted. (9)
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. (10)
Section. 12. Prohibited motions. — The following
motions shall not be allowed:
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(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 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 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)
Section. 13. Dismissal w ith 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 plaintiffs 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. (5, R16)
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RULE 16 MOTION TO DISMISS
[Provisions either deleted or transposed]
RULE 17 DISMISSAL OF ACTIONS
S ectio n 1. Dism issal upon notice by p la in tiff. — 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 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. (1)
S ectio n 2. D ism issal upon m otion o f p la in tiff. —
Except as provided in the preceding section, a complaint
shall not be dismissed at the plaintiffs 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 or her
of the plaintiffs 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. (2a)
S ection 3. D ism issal due to fa u lt o f p la in tiff. —
If, for no justifiable cause, the plaintiff fails to appear on
the date of the presentation of his or her evidence in chief
on the complaint, or to prosecute his or her 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 the right of the defendant to prosecute
his or her counterclaim in the same or in a separate action.
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This dismissal shall have the effect of an adjudication upon

the merits, unless otherwise declared by the court. (3a)
S ection 4. D ism issal o f 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. (4)

RULE 14 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, (la)
S ection 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 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;
(g) The requirement for the parties to:
1. Mark their respective evidence if not yet marked
in the judicial affidavits of their witnesses;
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2. Examine and make comparisons of the adverse
parties’ evidence vis-a- vis 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 ju st 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 ju st cause of a party and/or counsel
to bring the evidence required shall be deemed a waiver of the
presentation of such evidence.
The branch clerk of court shall prepare the minutes
of the pre-trial, which shall have the following format: (See
prescribed form) (2a)
S ection. 3. Notice o f p re-tria l — 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 if he or she has no counsel.
The counsel served with such notice is charged with the
duty of notifying the party represented by him or her.
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Non-appearance at any of the foregoing settings shall be

deemed as non-appearance at the pre-trial and shall merit
the same sanctions under Section 5 hereof. (3a)
8 ectio n 4. Appearance o f 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.
S ection 5. E ffect o f fa ilu re 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 cause the dismissal of the action. The
dismissal shall be with prejudice, unless otherwise 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) calendar days from
termination of the pre-trial, and the court to render judgment
on the basis of the evidence offered. (5a)
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:
(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;
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(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
a s fa ilu re to a p p e a r a t th e p re -tria l. (8)
S ectio n 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;
(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.
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
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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)
S ection 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)
S ection 9. Ju dicial 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.
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)
S ectio n 10. Judgm ent a fter p re-tria l — 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.
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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
S ection 1. Who m ay 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 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. (1)
S ectio n 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. (2)
S ectio n 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. (3a)
S ection 4. A nsw er 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. (4a)

RULE 20 CALENDAR OF CASES

S ectio n 1. Calendar o f 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. (1)
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S ection 2. A ssignm ent o f 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. (2)

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 or her 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, (la)
S ection 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.
When an 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, reclusionperpetua or life
imprisonment and who is confined in any penal institution
shall be brought outside the penal institution for appearance
or attendance in any court unless authorized by the Supreme
Court. (2a)
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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. (3)
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. (4)
S ection 5. Subpoena fo r 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. (5)
S ection 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. The
service must be made so as to allow the witness a reasonable
time for preparation and travel to the place of attendance.
Costs for court attendance and the production of
documents and other materials subject of the subpoena shall
be tendered or charged accordingly. (6a)
S ection 7. Personal appearance in c o u rt — A person
present in court before a judicial officer may be required to
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testify as if he or she were in attendance upon a subpoena

issued by such court or officer. (7a)
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 or
her 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. (8a)
S ection 9. C ontem pt — 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. (9a)
S ection 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 prisoner if no
permission of the court in which his or her case is pending
was obtained. (10a)

RULE 22 COMPUTATION OF TIME

S ection 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. (1)
S ection 2. E ffect o f Interruption. — Should an act be
done which effectively interrupts the running of the period,
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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. (2)

RULE 23 DEPOSITIONS PENDING ACTION8

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 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 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, (la)
Section 2. Scope o f exam ination. — 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. (2)
Section 3. E xam ination and cross-examination.
— Examination and cross-examination of deponents may
proceed as permitted at the trial under Sections 3 to 18 of
Rule 132. (3)
Section 4. Use o f 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;
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(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 or her 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. (4a)
Section 5. E ffect o f substitution o f 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. (5)
S ection 6. Objections to adm issibility. — Subject
to the provisions of Section 29 of this Rule, objections 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. (6)
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Section 7. E ffect o f talcing depositions. — A party
shall not be deemed to make a person his or her own witness
for any purpose by taking his or her deposition. (7a)
Section 8. Effect o f 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. (8)
S ection 9. Rebutting deposition. — At the trial or
hearing, any party may rebut any relevant evidence contained
in a deposition whether introduced by him or her or by any
other party. (9a)
Section 10. Persons before whom depositions mag
be ta ken w ithin the Philippines. — Within the Philippines,
depositions may be taken before any judge, notary public, or
the person referred to in Section 14 hereof. (10)
Section 11. Persons before whom depositions mag 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. (11)
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. (12)
Section 13. Disqualification bg 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
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within the same degree, or employee of such counsel; or who

is financially interested in the action. (13)
Section 14. Stipulations regarding ta kin g o f deposi­
tions. — 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. (14)
Section 15. Deposition upon oral examination;
notice; tim e a n d 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. (15a)
Section 16. Orders fo r the protection o f p a rties 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 orders:
(a) That the deposition shall not be taken; (b) That
the deposition may be taken only at some designated place
other than that stated in the notice; (c) That the deposition
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; or (h) That the parties
shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the
court.
The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression. (16a)
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Section 17. Record o f examination; oath; objections.
— The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone
acting under his or her 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 taking 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. (17a)
Section 18. Motion to term inate or lim it 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. (18)
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
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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 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.
(19a)
Section 20. Certification and filin g 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. (20a)
Section 21. Notice o f filing. — The officer taking the
deposition shall give prompt notice of its filing to all the
parties. (21)
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. (22)
Section 23. Failure to attend o f p a rty 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. (23a)
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S ection 24. Failure o f p a rty 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 or
her 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 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. (24a)
Section 25. Deposition upon written interrogatories;
service o f notice and o f 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. (25a)
S ection 26. Officers to ta k e 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. (26a)
S ection 27. Notice o f filin g and fu rn ish in g 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. (27)
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Section 28. Orders fo r the protection o f 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 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.
(28)
Section 29. E ffect o f erro rs 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 a 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 26 of this Rule are waived unless served in writing
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upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within
three (3) calendar 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 Rules are
waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness sifter such
defect is, or with due diligence might have been, ascertained.
(29a)

RULE 24 DEPOSITIONS BEFORE ACTION

OR PENDING APPEAL
Section 1. Depositions before action; petition. — A
person who desires to perpetuate his or her 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, (la)
Section 2. Contents o f 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. (2a)
S ection 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
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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 be served
on the parties and prospective deponents in the manner
provided for service of summons. (3a)
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 then be taken in
accordance with Rule 23 before the hearing. (4)
Section 5. Reference to co u rt — For the purpose of
applying Rule 23 to depositions for perpetuating testimony,
each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the
petition for such deposition was filed. (5)
Section 6. Use o f 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
subsequently brought in accordance with the provisions of
Sections 4 and 5 of Rule 23. (6)
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
use 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
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order allowing the depositions 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. (7a)
RULE 25 INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service thereof.
— Upon ex parte motion, any party desiring to elicit material
a n d re le v a n t fa c ts fro m a n y a d v e rs e p a rtie s s h a ll file a n d
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, (la)
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. (2a)
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. (3a)
Section 4. Number o f interrogatories. — No party
may, without leave of court, serve more than one set of
interrogatories to be answered by the same party. (4)
S ection 5. Scope a n d use o f 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. (5)
Section 6. E ffect o f fa ilu re to serve w ritten
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 may not be compelled
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by the adverse party to give testimony in open court, or to

give a deposition pending appeal. (6)

RULE 26 ADMISSION BY ADVERSE PARTY

Section 1. Request fo r 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 copies have already been furnished. (1)
S ection 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 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. (2a)
S ection 3. Effect o f 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 or her in any other proceeding. (3a)
S ection 4. W ithdraw al — The court may allow the
party making an admission under this Rule, whether express
or implied, to withdraw or amend it upon such terms as may
be just. (4)
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Section 5. E ffect o f fa ilu re to file and serve request
fo r adm ission. — 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. (5)
RULE 27 PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS
S ection 1. Motion fo r 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 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, (la)

RULE 28 PHYSICAL AND MENTAL

EXAMINATION OF PERSONS
Section 1. When exam ination m ay 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, (la)
S ection 2. Order fo r exam ination. — 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
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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. (2)
Section 3. Report o f 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 or her 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 or her testimony if offered at the trial.
(3a)
Section 4. Waiver o f 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. (4a)

RULE 29 REFUSAL 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
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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.
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. (1)
S ectio n 2. Contempt o f c o u rt — 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 (2).
S ection 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 or her 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 or her to submit to a physical or mental
examination, the court may make such orders in regard to
the refused as are just, eind 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
shedl 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 or her 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 judgement 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
s u b m it to a p h y sic a l o r m e n ta l e x a m in a tio n . (3a)
Section 4. Expenses on refusal to adm it. — 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 reasonable 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. (4a)
Section 5. Failure o f p a rty to a tten d 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 or her 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. (5a)
S ection 6. Expenses against the Republic o f the
Philippines. —Expenses and attorney’s fees are not to be
imposed upon the Republic of the Philippines under this
Rule. (6)
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RULE 30 TRIAL
S ection 1. Schedule o f tr ia l —The parties shall strictly
observe the scheduled hearings as agreed upon and set forth
in the pre-trial order.
(a) The schedule of the trial dates, for both plaintiff
and defendant, shall be continuous and within the following
periods:
i. The initial presentation of plaintiffs evidence
shall be set not later than thirty (30) calendar days after
the termination of the pre-trial conference. Plaintiff
shall be allowed to present its evidence within a period
of three (3) months or ninety (90) calendar days which
shall include the date of the judicial dispute resolution,
if necessary;
ii. The initial presentation of defendant’s evidence
shall be set not later than thirty (30) calendar days after
the court’s ruling on plaintiffs formal offer of evidence.
The defendant shall be allowed to present its evidence
within a period of three (3) months or ninety (90) calendar
days;
iii. The period for the presentation of evidence
on the third (fourth, etc.) -party claim, counterclaim or
cross-claim shall be determined by the court, the total of
which shall in no case exceed ninety (90) calendar days;
and
iv. If deemed necessary, the court shall set the
presentation of the parties’ respective rebuttal evidence,
which shall be completed within a period of thirty (30)
calendar days.
(b) The trial dates may be shortened depending on
the number of witnesses to be presented, provided that the
presentation of evidence of all parties shall be terminated
within a period of ten (10) months or three hundred (300)
calendar days. If there are no third (fourth, etc.)-party claim,
counterclaim or cross-claim, the presentation of evidence
shall be terminated within a period of six (6) months or one
hundred eighty (180) calendar days.
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(c) The court shall decide and serve copies of its decision
to the parties within a period not exceeding ninety (90)
calendar days from the submission of the case for resolution,
with or without memoranda, (n)
S ection 2. Adjournm ents and postponem ents. — A
court may adjourn a trial from day to day, and to any stated
time, as the expeditious and convenient transaction of
business may require, but shall have no power to adjourn a
trial for a longer period than one month for each adjournment,
nor more than three months in all, except when authorized
in writing by the Court Administrator, Supreme Court. The
party who caused the postponement is warned that the
presentation of its evidence must still be terminated on the
remaining dates previously agreed upon. (2a)
[Section 3. Requisites o f motion to postpone trial fo r
absence o f evidence. — Deleted]
S ection 3. R equisites o f motion to postpone trial fo r
illness o f p a rty or counsel — A motion to postpone a trial
on the ground of illness of a party or counsel may be granted
if it appears upon affidavit or sworn certification that the
presence of such party or counsel at the trial is indispensable
and that the character of his or her illness is such as to render
his or her non-attendance excusable. (4a)
S ection 4. Hearing days and calendar c a ll Trial
shall be held from Monday to Thursday, and courts shall call
the cases at exactly 8:30 a.m. and 2:00 p.m., pursuant to
Administrative Circular No. 3-99. Hearing on motions shall
be held on Fridays, pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their court
calendars outside their courtrooms at least one (1) day before
the scheduled hearings, pursuant to OCA Circular No. 250-
2015. (n)
Section 5. Order o f tr ia l — Subject to the provisions of
Section 2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
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(a) The plaintiff shall adduce evidence in support of his
or her complaint;
(b) The defendant shall then adduce evidence in
support of his or her defense, counterclaim, cross-claim and
third-party complaint;
(c) The third-party defendant, if any, shall adduce
evidence of his or her defense, counterclaim, cross-claim and
fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross­
claim has been pleaded, shall adduce evidence in support of
their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon
their original case; and
(g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court directs the
parties to argue or to submit their respective memoranda or
any further pleadings.
If several defendants or third-party defendants, and so
forth, having separate defenses appear by different counsel,
the court shall determine the relative order of presentation of
their evidence. (5a)
S ectio n 6. O ral o ffer o f exhibits. — The offer of
evidence, the comment or objection thereto, and the court
ruling shall be made orally in accordance with Sections 34 to
40 of Rule 132. (n)
S ectio n 7. Agreed sta tem en t o f fa c ts. — The parties
to any action may agree, in writing, upon the facts involved in
the litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the
trial shall be held as to the disputed facts in such order as the
court shall prescribe. (6)
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[Section 7. Statem ent o f Judge. — Deleted]

Section 8. Suspension o f actions. — The suspension
of actions shall be governed by the provisions of the Civil
Code and other laws. (8a)
S ection 9. Judge to receive evidence; delegation to
clerk o f co u rt — The judge of the court where the case is
pending shall personally receive the evidence to be adduced
by the parties. However, in default or ex parte hearings, and
in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is
a member of the bar. The clerk of court shall have no power
to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon
submission of his or her report and the transcripts within ten
(10) calendar days from termination of the hearing. (9a)

RULE 31 CONSOLIDATION OR SEVERANCE

S ection 1. Consolidation. — When actions involving a
common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions consolidated;
and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay. (1)
Section 2. Separate trials. — The court, in furtherance
of convenience or to avoid prejudice, may order a separate
trial of any claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue or of any number of
claims, crossclaims, counterclaims, third-party complaints
or issues. (2)

RULE 32 TRIAL BY COMMISSIONER

Section 1. Reference by consent. — By written consent
of both parties, the court may order any or all of the issues
in a case to be referred to a commissioner to be agreed upon
by the parties or to be appointed by the court. As used in
these Rules, the word “commissioner” includes a referee, an
auditor and an examiner. (1)
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S ectio n 2. Reference ordered on motion. — When the
parties do not consent, the court may, upon the application of
either or of its own motion, direct a reference to a commissioner
in the following cases:
(a) When the trial of an issue of fact requires the
examination of a long account on either side, in which case
the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the
information of the court before judgment, or for carrying a
judgment or order into effect;
(c) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any stage of a
case, or for carrying a judgment or order into effect. (2)
S ection 3. Order o f reference; pow ers o f the
commissioner. — When a reference is made, the clerk shall
forthwith furnish the commissioner with a copy of the order
of reference. The order may specify or limit the powers of the
commissioner, and may direct him or her to report only upon
particular issues, or to do or perform particular acts, or to
receive and report evidence only, and may fix the date for
beginning and closing the hearings and for the filing of his
or her report. Subject to the specifications and limitations
stated in the order, the commissioner has and shall exercise
the power to regulate the proceedings in every hearing
before him or her and to do all acts and take all measures
necessary or proper for the efficient performance of his or
her duties under the order. He or she may issue subpoenas
and subpoenas duces tecum, swear witnesses, and unless
otherwise provided in the order of reference, he or she may
rule upon the admissibility of evidence. The trial or hearing
before him or her shall proceed in all respects as it would if
held before the court. (3a)
S ectio n 4. Oath o f commissioner. — Before entering
upon his or her duties the commissioner shall be sworn to a
faithful and honest performance thereof. (4a)
S ectio n S. Proceedings before commissioner. — Upon
receipt of the order of reference unless otherwise provided
therein, the commissioner shall forthwith set a time and
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place for the first meeting of the parties or their counsel to be

held within ten (10) calendar days after the date of the order
of reference and shall notify the parties or their counsel. (5a)
Section 6. Failure o f parties to appear before
commissioner. — If a party fails to appear at the time and
place appointed, the commissioner may proceed ex parte or,
in his or her discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his or her counsel of
the adjournment. (6a)
Section 7. Refusal o f witness. — The refusal of a
witness to obey a subpoena issued by the commissioner or to
give evidence before him or her, shall be deemed a contempt
of the court which appointed the commissioner. (7a)
Section 8. Commissioner shall avoid delays. — It is
the duty of the commissioner to proceed with all reasonable
diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring
the commissioner to expedite the proceedings and to make
his or her report. (8a)
Section 9. Report o f commissioner. — Upon the
completion of the trial or hearing or proceeding before the
commissioner, he or she shall file with the court his or her
report in writing upon the matters submitted to him or
her by the order of reference. When his or her powers are
not specified or limited, he or she shall set forth his or her
findings of fact and conclusions of law in his or her report. He
or she shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial evidence
presented before him or her. (9a)
Section 10. Notice to parties o f the filin g o f report.
— Upon the filing of the report, the parties shall be notified
by the clerk, and they shall be allowed ten (10) calendar days
within which to signify grounds of objections to the findings
of the report, if they so desire. Objections to the report based
upon grounds which were available to the parties during the
proceedings before the commissioner, other than objections
to the findings and conclusions therein set forth, shall not
be considered by the court unless they were made before the
commissioner. (10a)
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S ectio n 11. Hearing upon report. — Upon the
expiration of the period of ten (10) calendar days referred to in
the preceding section, the report shall be set for hearing, after
which the court shall issue an order adopting, modifying, or
rejecting the report in whole or in part, or recommitting it
with instructions, or requiring the parties to present further
evidence before the commissioner or the court. (11a)
S ectio n 12. Stipulations as to fin d in g s. — When the
parties stipulate that a commissioner’s findings of fact shall
be final, only questions of law shall thereafter be considered.
( 12 )
S ection 13. Compensation o f commissioner. —
The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party, or apportioned,
as justice requires. (13)
RULE 33 DEMURRER TO EVIDENCE
S ectio n 1. Demurrer to evidence. — After the plaintiff
has completed the presentation of his or her evidence, the
defendant may move for dismissal on the ground that upon
the facts and the law the plaintiff has shown no right to relief.
If his or her motion is denied, he or she shall have the right to
present evidence. If the motion is granted but on appeal the
order of dismissal is reversed, he or she shall be deemed to
have waived the right to present evidence, (la)
S ection 2. Action on dem urrer to evidence. — A
demurrer to evidence shall be subject to the provisions of
Rule 15.
The order denying the demurrer to evidence shall not be
subject of an appeal or petition for certiorari, prohibition or
mandamus before judgment, (n)
RULE 34 JUDGMENT ON THE PLEADINGS
S ectio n 1. Judgm ent on the pleadings. — Where
an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleading, the
court may, on motion of that party, direct judgment on such
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pleading. However, in actions for declaration of nullity or

annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved. (1)
S ection 2. Action on m otion fo r Judgm ent on the
pleadings. — The court may motu proprio or on motion render
judgment on the pleadings if it is apparent that the answer
fails to tender an issue, or otherwise admits the material
allegations of the adverse party’s pleadings. Otherwise, the
motion shall be subject to the provisions of Rule 15 of these
Rules.
Any action of the court on a motion for judgment on the
pleadings shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus, (n)
RULE 35 SUMMARY JUDGMENTS
S ectio n 1. Sum m ary Judgm ent fo r claim ant. —
A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his or her favor upon all or any part
thereof, (la)
S ection 2. Sum m ary Judgm ent fo r defending party.
— A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions
for a summary judgment in his or her favor as to all or any
part thereof. (2a)
S ection 3. Motion and proceedings thereon. — The
motion shall cite the supporting affidavits, depositions or
admissions, and the specific law relied upon. The adverse
party may file a comment and serve opposing affidavits,
depositions, or admissions within a non-extendible period of
five (5) calendar days from receipt of the motion. Unless the
court orders the conduct of a hearing, judgment sought shall
be rendered forthwith if the pleadings, supporting affidavits,
depositions and admissions on file, show that, except as to
the amount of damages, there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.
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Any action of the court on a motion for summary
judgment shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus. (3a)
S ectio n 4 . Case not fu lly adjudicated on motion.
— If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial
is necessary, the court may, by examining the pleadings and
the evidence before it and by interrogating counsel, ascertain
what material facts exist without substantial controversy,
including the extent to which the amount of damages or
other relief is not in controversy, and direct such further
proceedings in the action as are just. The facts so ascertained
shall be deemed established, and the trial shall be conducted
on the controverted facts accordingly. (4a)
S ectio n 5. Form o f a ffid a v its a n d supporting papers.
— Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
Certified true copies of all papers or parts thereof referred to
in the affidavit shall be attached thereto or served therewith.
(5)
S ectio n 6. A ffid a vits in bad fa ith . — Should it appear
to its satisfaction at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith,
or solely for the purpose of delay, the court shall forthwith
order the offending party or counsel to pay to the other party
the amount of the reasonable expenses which the filing of
the affidavits caused him or her to incur, including attorney’s
fees, it may, after hearing further adjudge the offending party
or counsel guilty of contempt. (6a)
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RULE 144 EFFECTIVENESS

These rules shall take effect on January 1, 1964. They
shall govern all 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 even
the former procedure shall apply.
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The 2019 Proposed Amendments to the 1997 Rules of

Civil Procedure shall govern all cases filed after their effectivity
on May 1, 2020, and also all pending proceedings, except to
the extent that in the opinion of the court, their application
would not be feasible or would work injustice, in which case
the procedure under which the cases were filed shall govern.
(n )

The application and adherence to the said amendments

shall be subject to periodic monitoring by the Sub-Committee,
through the Office of the Court Administrator (OCA). For this
purpose, all courts covered by the said amendments shall
accomplish and submit a periodic report of data in a form to
be generated and distributed by the OCA. (n)
All rules, resolutions, regulations or circulars of the
Supreme Court or parts thereof that are inconsistent with
any provision of the said amendments are hereby deemed
repealed or modified accordingly, (n)

PRESCRIBED FORM NO. 1

NOTICE OF PRE-TRIAL
The parties are hereby required to appear personally
or through their duly authorized representative, and their
counsel in the Pre-Trial on a t _____ o’clock A.M./P.M., and in
the following proceedings:
1. COURT-ANNEXED MEDIATION: (To be scheduled
at pre-trial}
2. JUDICIAL DISPUTE RESOLUTION: (To be scheduled
at pre-trial if deemed necessary by the court.)
The parties and their counsels are required to be present
at the pre-trial and to file with the court and serve on the
adverse party at least three (3) days before the date of the
pre-trial their respective pre-trial briefs which shall contain,
among others:
(a) A concise statement of the case and the reliefs
prayed for;
(b) A summary of admitted facts and proposed
stipulation of facts;
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(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) 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.
Non-appearance at the Pre-Trial or any of the foregoing
settings shall merit the sanction of dismissal of the action, for
the plaintiffs and his or her counsel’s non-appearance, and
allowance of plaintiffs ex parte evidence presentation and
ex parte judgment, for defendant’s and his or her counsel’s
non-appearance. 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, through a special power of attorney,
may appear on behalf of a party, but shall 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 admission of facts and documents.
The parties and their counsel, who are required to attend
the Pre-Trial shall be ready
No reservation of evidence not available during the Pre-
Trial shall be allowed unless done in the following manner:
(a) For testimonial evidence, by giving the name or
position and the nature of the testimony of the proposed
witness;
(b) For documentary evidence and other object evidence,
and electronic evidence, by giving a particular description of
the evidence.
The failure without ju st cause of a party and counsel to
appear at the Pre Trial, despite notice, shall result in a waiver
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of any objections to the faithfulness of the reproductions

marked, or their genuineness and due execution.
The failure without ju st cause of a party and counsel to
bring the evidence required at the Pre-Trial shall be deemed
a waiver of the presentation of such evidence.
WITNESS, the HON. Court, this day of Presiding Judge
of th is _______, 20____ at_____
Branch Clerk o f Court

PRESCRIBED FORM NO. 2

PRE-TRIAL ORDER
I. PLAINTIFF’S EVIDENCE:
A. Documentary and other Object Evidence:
Exhibit “A” - Description; Exhibit “B” - Description;
Exhibit “C” - Description;
B. Testimonial Evidence:
Judicial Affidavit of Judicial Affidavit of Judicial
Affidavit of
C. Reserved Evidence:
Description;
II. DEFENDANT’S EVIDENCE
A. Documentary and other Object Evidence:
Exhibit “A” - Description; Exhibit “B” - Description;
Exhibit “C” - Description;
B. Testimonial Evidence:
Judicial Affidavit of Judicial Affidavit of Judicial
Affidavit of
C. Reserved Evidence:
Description;
Evidence not pre-marked and listed herein shall not
be allowed during trial.
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III. ADMITTED FACTS AND STIPULATION OF FACTS
IV. ISSUES TO BE TRIED OR RESOLVED
In case there are no more controverted facts or genuine
issues to be resolved, the court shall so declare in the pre­
trial order and shall motuproprio consider the case submitted,
without prejudice to a party moving, for judgment on the
pleadings or summary judgment, without need of position
papers or memoranda. In such cases, judgment shall be
re n d e r e d w ith in n in e ty (90) c a le n d a r d a y s fro m te rm in a tio n
of the pre-trial. However, if there are controverted facts or
genuine issues to be resolved, the court shall first refer the
case to the Philippine Mediation Center Unit for mediation
purposes.

V. MANIFESTATION OF PARTIES HAVING AVAILED

OR THEIR INTENTION TO AVAIL OF DISCOVERY
PROCEDURES OR REFERRAL TO COMMISSIONERS
VI. NUMBER AND NAMES OF WITNESSES, THE
SUBSTANCE OF THEIR TESTIMONIES, AND
APPROXIMATE NUMBER OF HOURS THAT WILL BE
REQUIRED BY THE PARTIES FOR THE PRESENTATION
OF THEIR RESPECTIVE WITNESSES
VII. SCHEDULE OF CONTINUOUS TRIAL DATES
FOR BOTH PLAINTIFF AND DEFENDANT
Trial shall proceed o n ______________, all at 8:30 A.M.
and 2:00 P.M., for the plaintiff or claiming party to present
and terminate its evidence; and on _____________ , all at
8:30 A.M. and 2:00 P.M., for the defendant or defending party
to present and terminate its evidence.*!This will depend on
the number o f witnesses listed. It is suggested that for every
witness, at least two (2) trial dates should be allotted. The trial
dates may likewise be one (1) day apart.]
The trial dates are final and intransferrable, and no
motions for postponement that are dilatory in character shall
be entertained by the court. If such motions are granted
in exceptional cases, the postponement/s by either party
shall be deducted from such party’s allotted time to present
evidence.
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The parties are hereby ordered to immediately proceed

and personally appear at the Philippine Mediation Center
located a t _____________ (PMC Unit) today, (date today) with
or without their counsel/s, for mediation proceedings. The
assigned Mediator is ordered to submit a report to this court
on the results of the mediation based on the factual and legal
issues to be resolved within a non- extendible period of thirty
(30) calendar days from the date of the court’s referral of this
case to the PMC Unit.
Should mediation fail after the lapse of the said 30-day
period, the parties are ordered to appear before the court
so that the trial shall proceed on the trial dates indicated
above. Only if the judge of the court to which the case was
originally raffled is convinced that settlement is possible that
the case may be referred to another court for judicial dispute
resolution, which shall be conducted within a non-extendible
period of fifteen (15) calendar days from notice of the court-
annexed mediation. If judicial dispute resolution fails, trial
before the original court shall proceed on the dates agreed
upon.
Failure of the party or his or her counsel to comply with
the abovementioned schedule of hearings and deadlines shall
be a ground for imposition of fines and other sanctions by the
court.
The parties and their counsel are hereby notified hereof,
and the court shall no longer issue a subpoena to the parties
present today.
CONFORMITY
Plaintiff
Defendant
Plaintiffs Counsel
Defendant’s Counsel
ATTESTED:
Branch Clerk o f Court
NOTED BY:
Presiding Judge