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RE ME DIA L LAW

GE NE RA L P R I N C I P LE S
1.

Classification of courts in the

Philippines:

a. Courts
of general jurisdiction:
Those
competent to
decide their own jurisdiction and to take cognizance of all
kinds of cases, unless otherwise provided by the law or
Rules. Example: Regional Trial Courts.
Courts of special or limited jurisdiction:
Those
which have no power to decide their own jurisdiction and
can only tr y ca se s pe r m i t t e d by s t a t u t e . E xam pl e :
Municipal Trial Courts.
The J uve ni le and Domestic Relations Courts had
the rank of Courts of First Instance but were courts of
special jurisdiction. Under B.P. Blg. 129, they have been
integrated into the Regional Trial Courts as branches
thereof.
b. Courts of original jurisdiction: Those courts in which, un de
r th e law, ac ti ons or procee dings may originally be
commenced.
Courts of appellate jurisdiction: Courts which have
the power to review on appeal the decisions or orders of
a lower court.
c. Superior courts: Courts which have the power of review or
supervision over another and lower court.
Inferior courts: Those which, in relation to another
court, are lower in rank and subject to review and super
vision by the latter.
While, in a generic sense, a court is considered an
inferior court in relation to the powers of another tribunal
higher in rank, in its technical sense and unless otherwise
i nte nde d, i t was formerl y provided tha t the phra s e
1

R E M E D I A L LAW C O M P E N D I U M

"inferior court" referred to the then municipal or city


courts (former Sec. 1, Rule 5, in relation to R.A. 3820
and R.A. 3828), now called Metropolitan, Municipal, and
Municipal Circuit Trial Courts. Note, also, tha t under
Sec. 2, Rule 5, the term "municipal trial court" as used in
the se re vised Rules includes all othe r courts of the
same rank. In legal circles, they are also called "courts
of the first level." In some official issuances, the Supreme
Court refers to them as "first level courts."
However, the "inferior courts" whose decisions are
subject to the appell ate j uri sdicti on of th e Supre m e
Court (Sec. 17, R.A. 296) refer to all the courts lower
tha n the Supreme Court. The term "lower courts" is now
used for that purpose in the 1987 Constitution (Sec. 5[2],
Art. VIII), in lieu of "inferior courts" used in the 1935
and 1973 Constitutions.
d. Courts of record: Those whose proceedings are enrolled and
which are bound to keep a writ ten record of all trials
and proceedings handled by them (see Luzano vs. Romero,
et al, L-33245, Sept. 30, 1971).
Courts not of record: Courts which are not required
to keep a writ t e n record or t ra ns c ri p t of proceedings
held the rein.
Prior to the effectivity of R.A. 6031 on August 4,
1969, inferior courts were not of record; but if a municipal
court of the capital of a province or a city court tried a
c r i m i n a l cas e w h e r e i n th e i m p o s a bl e p e n a l t y i s
imprisonment of more tha n 6 months but not exceeding
6 years and/or a fine of more tha n P200 but not exceeding
P6.000, its proceedings were required to be recorded as
its decisions were appealable to the Court of Appeals or
the Supreme Court (R.A. 296, as amended by R.A. 2613
and R.A. 3828, Sec. 87[c], last paragraph). However,
under R.A. 2613, amending Sec. 45, R.A. 296, all inferior
courts are now required to record their proceedings and
are accordingly courts of record.
2

GENE RA L P RI NCIP LE S

e. Constitutional courts: Those which owe their creation and


existence to the Constitution and, therefore, cannot be
legislated out of existence or deprived by law of the
jurisdiction and powers unqualifiedly vested in them by
the Constitution. The Supreme Court and the
Sandi ganba yan are the only courts specifically provided
for in the Constitution. With regard to the latter, the
be t t e r view i s t h a t th e S a n d i g a n b a ya n i s only a
c on st i t ut i o na l l y- m a nd a t e d court since, alt hough its
existence is provided for in the Constitution, its creation
was by statutory enactment.
Statutory courts: Those created, organized
and
with j u r i s d i c t i o n e xc l us i ve l y d e t e r m i n e d by law.
Accordingly, all othe r courts in the Philippines are
statutory courts.
2. The Court of Tax Appeals created by R.A. 1125 has been
held to be a part of the judicial system vested with special
jurisdiction to act only on protests of private pe rson s
a d ve r s e l y affected by the tax, cust om s or assessment
laws (Ursal vs. CTA, et al., 101 Phil. 209).
On March 30, 2004, said law was amended by R.A.
9282 expa ndi ng the juri sdicti on of the Court of Tax
Appeals (CTA) and elevating its rank to the level of a
collegiate court with special jurisdiction, of the same level
as the Court of Appeals, and consisting of a Presiding
Justice and 5 Associate Justices who shall sit en banc or
in 2 divisions of 3 justices each. The court shall, inter
alia, have exclusive appell ate jurisdic tion to review
decisions of the Commissioner of Internal Revenue in
disputes arising from the tax law administered by the
Bureau of Int ernal Revenue, the Regional Trial Courts in
local tax cases, the Commissioner of Customs in matters
administered by the Bureau of Customs, the Central Board
of Assessment Appeals in assessments of real property,
the Secretar y of Fi nance and the Secretary of Trade
and Industry in matt ers specified therein. The decision

R E M E D I A L LAW C O M P E N D I U M

of said court en banc may be reviewed by the Supreme


Court on certiorari pursuant to Rule 45 of the Rules of
Court (see Appendix CC).
3. The distinction obtaining in other juri sdicti ons between
courts of law and courts of equity, and among civil,
criminal and probate courts, does not apply in the
Philippines wherein all courts are courts both of law and
equity (Rustia vs. Franco, 41 Phil. 280; Roa, et al. vs.
CA, et al., L 27294, June 28, 1983; Galman, et al. vs.
Sandiganbayan, et al., G.R. No. 72670, Sept. 12, 1986);
and Regional Trial Courts and, to a limited extent, the
lower courts, exercise jurisdiction, according to the case
involved, as civil, criminal or probate courts or courts of
land re gistration. Before B.P. Blg. 129 became operative,
the r e were special courts, such as the Ju ve ni l e and
Domestic Relations Courts, the Circuit Criminal Courts
and the Courts of Agrarian Relations, which were courts
exercising only limited and special jurisdiction.
4. . Under our pre se nt stat ut or y and j uri sprude nt i al
taxonomy, jurisdiction is classified, based on its na t ure ,
as follows:
a. General jurisdiction, or the power to adjudicate all
controversies except those expressly withheld from the
pl e na r y powers of the court; and special or limited
jurisdiction, which restricts the court' s jurisdiction only
to particular cases and subject to such limitations as may
be provided by the governing law.
b. Original jurisdiction, or the power of the court to take
judicial cognizance of a case inst itut ed for judicial action
for the first time under conditions provided by law; and
appellate jurisdiction, or the aut horit y of a court higher in
rank to reexamine the final order or judgme nt of a lower
court which tried the case now elevated for judicial review.
c. Exclusive jurisdiction, or the power to adjudicate a case
or proceeding to the exclusion of all other courts

GENE RA L PRI NCIPLE S

at that stage; and concurrent jurisdiction, sometimes


referred to as confluent or coordinate jurisdiction, which
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.
Concurrent original jurisdiction between trial courts
of different ra nks has in the main been eliminated by
B.P. Blg. 129. For instance, there is no more concurrent
juri sdicti on in adoption or guardia nshi p proceedings
between inferior courts and the present Regional Trial
Courts as was provided by the Judiciary Act with respect
to the former Courts of First Instance, which Act also
provided for concurrence in criminal cases and special
civil actions. However, as among courts of the same rank,
it appears that a phase of concurrent original jurisdiction
still obtains in some instances as, for example, in civil
and criminal cases for libel or the settlement of the estate
of a nonresident with properties in different judicial
regions. Withal, in point of strict law, these situations
are ma tt e rs of venue except in criminal cases for libel,
since in c r i m i n a l p r o c e d u r e , venu e is, as a rul e,
jurisdictional. For a discussion of other criminal cases
c ove re d b y th e sam e rul e , see th e P r e l i m i n a r y
Considerations in Criminal Procedure in Volume Two of
this work. Where such concurrence exists, the court first
taking cognizance of the case does so to the exclusion of
the other courts, although the Supreme Court may order
a transfer of venue or place of trial to another court of
competent jurisdiction.
At any rate, B.P. Blg. 129 provides for concurrent
original jurisdict ion between the Supreme Court and
either the Court of Appeals or the Regional Trial Courts,
or among all three courts in certain cases. To illustrate,
the Supreme Court has concurrent original jurisdiction

with the Court of Appeals in petitions for the issuance of


writs of certiorari, prohibition and mandamus against

R E M E D I A L LAW C O M P E N D I U M

the Regional Trial Courts; with the Court of Appeals and


the Regional Trial Courts over the same petitions against
the inferior courts; and with the Regional Trial Courts
in actions affecting ambassadors, other public ministers
and consuls.
5. Also, under B.P. Blg. 129, delegated jurisdiction is
provided for, i.e., the grant of authorit y to inferior c ourt
s t o he a r and d e t e r m i n e c a d a s t r a l an d land re gistration
cases under certain conditions (see Sec. 34, infra); and
special jurisdiction, which is the power of inferior courts to
hear and decide petitions for a writ of habeas corpus or
applications for bail in the absence of all the Regional
Trial Judges in the province or city (see Sec. 35, infra). This
l at t e r type of jurisdict ion was formerly included, with
variations, in what was known as the interlocutory
jurisdiction of inferior courts under the Judiciary Act.
6. Me nt i on mus t also be made of th e territorial jurisdiction of
a court, which refers to the geographical are a within
which its powers can be exerci se d. As already stated,
this assumes importance in criminal cases wherein
considerations of the territory vis-a-vis the locus of the
crime determine not only the venue of the case but the
jurisdiction of the court; and, in civil cases, the venue of
real or mixed actions. In all cases, the Supreme Court and
the Court of Appeals have national jurisdiction; the
Regional Trial Courts have regional jurisdiction; and the
inferior courts have such territorial jurisdiction as may
be defined by the Suprem e Court pursua n t to Secs, 25,
28 and 31 , B.P. Blg. 129.
Other classifications of original jurisdiction are based
on the subject -matt er or the nat ure of the action being
tried by the court, such as civil, c rim i nal , proba t e ,
admiralt y and maritime, juvenile and domestic relations,
a grarian, and land re gi st rat ion. Most of these different
areas of jurisdiction are exercised by the re gula r trial

GENERA L PRINCIPLE S

courts, since the special courts like the circuit criminal


courts and the juvenile and domestic relations courts have
been abolished. With respect to the latter, domestic cases
are now generally handled by the newly created Family
C o urt s , h e r e i n a f t e r d i s c u s s e d . O t h e r s u b j e c t s o f
controversies requi ring special t rai ni ng and knowledge,
such as ta xati on, labor and securities, are handled by
quasi-judicial agencies, subject to the power of judicial
review by the appellate courts.
7 . J u r i s d i c t i o n an d ve nu e ar e d i s t i n g u i s h e d a s
follows:
a . J u r i s d i c t i o n i s th e a u t h o r i t y t o he a r an d
determine a case; venue is the place where the case is to
be heard or tried.
b. Juri sdicti on is a ma tt e r of subst ant i ve law; venue, of
procedural law.
c. Juri sdic t i on e st a bl i she s a relation bet wee n the court and
the subje c t -ma tt e r; venue, a relation between plaintiff and
defendant, or pe titi one r and respondent.
d . J u r i s d i c t i o n i s fixed by law an d c a n n o t be conferred by
the pa rti e s; venue may be conferred by the act or
a gre e m e n t of the pa rti e s (Manila Railroad Co. vs. AttorneyGeneral,
20 Phil.
523).
In crimi nal cases, the venue of the crime goes into
the te rrit orial jurisdic tion of the court (Lopez vs. Paras, L25795, Oct. 29, 1966), hence where the criminal action is
instit ute d not in the place specified by the Rules and
declared by the subst a nt i ve law as within the territorial
jurisdiction of the trial court, the motion to quash should
be grounded on lack of jurisdict ion, and not improper
ve nue.
8. The authorit y to decide a case and not the decision re ndere d
t he re i n is wha t ma kes up jurisdiction. Where there is
juri sdicti on, the decision of all questions arising in the
case is bu t an exercise of jurisdiction (De la Cruz
7

R E M E D I A L LAW C O M P E N D I U M

vs. Moir, 36 Phil. 213; Associated Labor Union vs.


Ramolete, L-23527, Mar. 31, 1965). Consequently, a
court may have jurisdiction over the case but at the
same time act in excess of such jurisdiction.
9. The error s which a court may commit in the exercise of
jurisdiction differ from errors of judgment. The former is
re vi e wa bl e in an ori gi na l action for c e rt i o ra ri , while the
l at t e r is correct ible by a ppea l (Henderson, et al. vs. Tan,
etc., et al., 87 Phil. 466; Maritime Co. of the Phil. vs.
Paredes, L-24811, Mar. 3, 1967; Bulan vs. Masakayan, L24428, June 26, 1968; Palma vs. Q & S, Inc., L-20366,
May 19, 1986). Errors of j u ri sd i c t i o n re nde r a j u d gm e n
t void or, at least voidable (see Sec. l[a] and [b], Rule 16; Rule
65), while errors of judgm ent are grounds for reversal only
if it is shown that prejudice has been caused thereby
(Banco Espahol-Filipino vs. Palanca, 37 Phil. 821; Bimeda
vs. Perez, et al., 93 Phil. 636).
10.
Requisites for the exercise of jurisdiction
how the court acquires such jurisdiction:

and

a. Jurisdiction over
the plaintiff or petitioner:
This is
acquired by the filing of the complaint, petition or
initiatory pleading before the court by the plaintiff or
petitioner.
b. Jurisdiction over the defendant or respondent: Thi s i s
a c q ui r e d by th e v o l u n t a r y a p p e a r a n c e or su bm i s si o n
by th e d e f e n da n t or r e s p o n d e n t to th e court or by
coercive proc ess issued by the court to him, generally
by the service of summons (Sharuff vs. Bubla, L-17029,
Sept. 30, 1964; Aban vs. Enage, L-30666, Feb. 25,
1983).
c. Jurisdiction over the subject-matter: This is con ferred by law
and, unlike jurisdiction over the parties, cannot be
conferred on the court by the voluntary act or agre eme nt of
the parties.

GENERA L PRINCIPLE S

d. Jurisdiction over the issues of the case: This is determined and


conferred by the pleadings filed in the case by the
pa rti e s, or by thei r a gre e m e nt in a pre -t rial order or
stipulation, or, at times, by their implied consent as by the
failure of a pa rt y 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 & Insurance Co., Inc.,
L-27365, Jan. 30, 1970).
e. Jurisdiction over the res (or the propert y or thing which is
the subject of the liti gation): This is acquired by the
actual or constructi ve sei zure by the court of the thing in
question, thu s placing it in custodia legis, as in a t t a c h m e n t
or g a r n i s h m e n t ; or by pro vi si on of law which recognizes
in the court the power to deal with the propert y or s ub j e c t m a t t e r within its territorial juris diction, as in land
re gi s t r a t i o n proc ee di ngs or suit s involving civil st a t u s or
real propert y in the Philippines of a
nonre si de nt
defendant.
In two insta nces, the court acquires jurisdiction to
try the case, even if it has not acquired jurisdiction over
the person of a nonre si de nt defendant, as long as it has
jurisdiction over the res, as when the action involves the
personal st a t u s of the plaintiff or propert y in the Phil
ippines in which the defendant claims an inte rest (see
Sec. 15, Rule 14). In such cases, the service of summons
by publica tion and notice to the de fe nda nt is merel y
t o compl y wi t h du e p r oc e s s r e q u i r e m e n t s (Banco
Espanol-Filipino vs. Palanca, 37 Phil. 921; De Midgely
vs. Ferandos, et al., L-34314, May 13, 1975). Unde r
Sec. 133 of th e C o r p o r a t i o n Code, whi le a fore i gn
corporation doing busine ss in the Philippines without a
license cannot sue or intervene in any action here, it may
be sued or p r oc e e de d a ga i n s t before ou r court s or
a dmi ni st rat i ve t ri buna l s.
11.. As a general proposition, the jurisdiction of the court is
de t e rm i ne d by the st a t ut e in force at the time of the
comme nceme nt of the action (People vs. Paderna,

R E M E D I A L LAW C O M P E N D I U M

L-28518, Jan. 29, 1968; People vs. Mariano, et al., L40527, June 30, 1976; Lee, et al. vs. Presiding Judge, etc.,
et al, G.R. No. 68789, Nov. 10, 1986), unless such stat ute
provides for its retroactive application, as where it is a
curative legislation (Atlas Fertilizer Corp. vs. Navarro,
etc., et al., G.R. No. 72074, April 30, 1987).
12.
The settled rule is that the jurisdiction of the
court over the subject-matter is determined by the alle
gat ions of the com plai nt (Edward J. Nell & Co. vs.
Cubacub, L-20843, June 23, 1965; Time, Inc. vs. Reyes,
et al., L-28882, May 31, 1971; Ganadin vs. Ramos, et
al., L-23547, Sept. 11, 1980), but this rule is not without
exceptions. Thus, i t was held tha t while the alle gations
in the complaint make out a case for forcible entry, where
tenanc y is averred by way of defense and is proved to be
the real issue, the case should be dismissed for lack of
jurisdiction as the case should properly be filed with the
then Court of Agra ri a n Relations (Ignacio vs. CFI of
Bulacan, L-27897, Oct. 29, 1971). However, with
the
integration of the courts of agrarian relations as branches
of the Regional Trial Courts under B.P. Blg. 129, the
case was re quire d to be filed with the corre spondi n g
Regional Trial Court if i t was within the juri sdicti on
thereof, for a ssi gnme nt to the appropriate branch. Also,
although the allegations in the complaint make out a case
cognizable by a Regional Trial Court, where, however,
the acts com plai ned of are shown at the tria l to be
interwoven with an unfair labor practice case, the action
should be dismissed since jurisdiction is vested in the
National Labor Relations Commission. This is so since
the Rules now permit a motion to dismiss based upon
facts not alleged in the complaint (Mindanao Rapid Co.,
Inc. vs. Omandam, et al., L-23058, Nov. 27, 1971, jointly
de cidi ng t h e re i n L-23473, 23871, 24232, 24718 and
24956).
13.
Where the complaint is for actual da ma ge s of
P978, but the other claims for da ma ge s and att orne y' s
10

GENERA L PRINCIPLE S

fees bring the total relief sought to more tha n P 10,000


(which was then the juri sdicti onal limit for civil cases in
the inferior courts), the totalit y of said claims puts the
case within the juri sdicti on of the then Court of First
Insta nce and th e tria l court erre d in di sm i ssi n g the
complaint upon its mere impression tha t the other claims
were "bloated" for the purpose of invoking its jurisdiction,
wit hou t h e a r i n g an d proof of suc h fact (Enerio vs.
Alampay, L-40010, May 26, 1975; Ratila vs. Tapucar, L45018, Jan. 24, 1977). This doctrine is still applicable subject
to the inc rea se d j u ri sd i c t i ona l am oun t unde r
B.P. Blg. 129 and subse que nt legislation.
14.
The jurisdict ion of a court, whe t he r in criminal
or civil cases, once i t a t t a c h e s ca nno t be ousted by
subsequent ha ppe ni ngs or events although of a charac
ter whic h woul d hav e p r e ve n t e d j u r i s d i c t i o n from
attaching in the first inst ance (Ramos, et al. vs. Central
Bank, L-29352, Oct. 4, 1971, and cases t he re i n cited;
Dioquino vs. Cruz, et al., L-38579, Sept. 9, 1982) and it
retains juri sdicti on until i t finally disposes of the case
(Republic vs. Pielago, et al., G.R. No. 72218, July 21,
1986).
15.
The constit uti onal it y of a st a t ut e must be ques
tioned at the e a rl i e st opport uni t y, except in criminal
cases where the question may be raised at any stage and,
in civil cases, if the de t e rm i na t i o n of the que st ion is
necessary for the decision of the case, even if raised for
the first time on appeal. A const itut ional question will
also be considered by the appellate court at any time if it
involves the juri sdicti on of the court a quo. The same
rule applies to ordi na nces (San Miguel Brewery, Inc. vs.
Magno, L 21879, Sept. 9, 1967).
16.
Basic in the law on procedure is the doctrine that
the jurisdiction of a court over the subje ct -matte r of an
action is conferred only by the Constit ution or the law
and tha t the Rules of Court yield to subst ant i ve law, in

R E M E D I A L LAW C O M P E N D I U M

this case, the Judiciary Act and B.P. Blg. 129, both as
a me nde d, and of which j uri sdic t i on is only a pa rt .
Jurisdic tion cannot be fixed by the a gre em e nt of the
parties; it cannot be acquired through, or waived, en
larged or diminished by, any act or omission of the
parties; neither can it be conferred by the acquiescence
of the court (De Jesus, et al. vs. Garcia, et al., L-26816,
Feb. 28, 1967; Calimlim, et al. vs. Ramirez, et al., L34363, Nov. 19, 1982). Jurisdiction must exist as a ma tt e
r of law (People vs. Casiano, L-15309, Feb. 16, 1961).
Consequentl y, questions of jurisdiction may be raised for
the first time on appeal even if such issue was not
ra i se d in the lower court (Government vs. American Surety
Co., 11 Phil. 203; Vda. de Roxas vs. Rafferty, 37 Phil. 957;
People vs. Que Po Lay, 94 Phil. 640). A court can motu
proprio dismiss a case which is outside its jurisdiction
(Sec. 1, Rule 9).
17.
Ne ve rt hel e ss, in some cases, the principle of
estoppel by laches has been availed of by our appellate
courts to bar atta cks on jurisdiction and this principle
has been applied to both civil and criminal cases, thus :
a. In the early case of Santiago, et al. vs. Valenzuela (78 Phil.
397), it was held that if a motion to dismiss the appeal, on
the ground that said appeal was perfected out of time, is
filed for the first time with the appellate court after the
appellant had paid the docket fee and the cost of
printing the record on appeal, and after the filing of
appellant ' s brief, the appellate court should deny the
motion as the appellee may be considered in estoppel by
his failure to object on time.
Thi s doc t ri n e wa s s u b s e q u e n t l y a b a n d o n e d i n
Miranda vs. Guanzon (92 Phil. 168) since the "require
ment re garding the perfection of an appeal within the
re glem enta ry period is not only m a nda t or y but juris
dictional," a ruling subsequentl y reiterated in Garganta
vs. CA (105 Phil. 412), Valdez vs. Ocumen (106 Phil.

12

GENERA L PRINCIPLE S

929), Galima vs. CA (L-21046, Jan . 31 , 1966), Antique


Sawmills, Inc. vs. Zayco (L-20051, May 30, 1966), Roque
vs. Vdo. de Del Rosario (L-24873, Sept. 23, 1966) and
Arellano, et al. vs. CA, et al. (L-31856, Nov. 24, 1972).
b. In the later case, however, of Tijam vs. Sibong- hanoy, et al. (L21450, April 15, 1968), the co-defendant suret y company
ne ver raised the issue of juri sdicti on in the Court of Fi rst
Insta nce despite
se veral opportuniti es to do so and,
al t hough the claim being for only 1*1,908, the case was
within
the
exclusive
original
jurisdiction of the
municipal court. It was only after the court of Appeals had
affirmed the decision of the trial court in favor of th e
pl a i nt i ff bu t before th e finalit y of thi s decision of the
Court of Appeals tha t the co-defendant suret y company
filed its motion to dismiss on the ground of lack of original
jurisdict ion of the trial court. Denying said motion, th e
Su pr e m e C ourt st a te d : "Were we to sanction such conduct
on its part, we would in effect be declaring as useless all the
proceedings had in the pre se nt case since it was commenced
on Jul y 19, 1948 and compel the jud gm e nt creditors to go
up their Calvary once more. The inequit y and unfa irness of
this is not only pa tent but re volting." I t furt he r stat ed
tha t "after voluntaril y submitting a cause and
enc ountering an adverse decision on the me rits, it is too
late for the loser to question the jurisdiction or power of
the court . . . i t is not right for a part y who has
affirmed and invoked the jurisdiction of a court in a
pa rt ic ul a r m at t e r to secure an affirmative relief, to
a f t e r w a r d s deny t ha t sam e j u ri sd i c t i o n to escape a
penalt y," citing Pindangan, etc. vs. Dans, et al. (L-14591,
Sept. 26, 1962), Young Men's Labor Union, etc. vs. CIR,
et al. (L-20307, Feb. 26, 1965) and Mejia vs. Lucas (100
Phil. 277). See also Capilitan vs. De la Cruz, (L-29536-37,
Feb. 28, 1974), Summit Guaranty vs. CA, et al. (G.R. No.
51139, Dec. 14, 1981), Tajonera, et al. vs. Lumaroza, et al.
(L-48907 & L-49035, Dec. 19, 1981),
Nieva
vs.
Manila Banking Corp.
( L- 30811 ,

R E M E D I A L LAW C O M P E N D I U M

Sept. 2, 1983), Florendo, et al. vs. Coloma, et al. (G.R.


No. 60544 , May 19, 1984), and Medijia vs. Patcho
(L-30310, Oct. 23, 1984).
c. In Rodriguez vs. CA (L-29264, Aug. 29, 1969), the action
involved property worth more than P200.000, at that time
within the exclusive appellate jurisdiction of the Supreme
Court. Despite several opportunities to raise that issue in the
Court of Appeals where the appeal was taken, defendant
did not challenge the appellate jurisdiction of the court
and did so only after decision was rendered therein against
him. He raised the
issue
of jurisdiction,
for the
nullification of the decision of the Court of Appeals, when
the case was on appeal in the Supreme Court. The
Supreme Court denied his plea unde r the doctrine of
estoppel by laches.
d. The same ruling was applied in Crisostomo vs. CA, et al. (L27166, Mar. 25, 1970) and Libudan vs. Gil (L-21163, May 17,
1972) unde r the justi ficati on tha t "the principle of
estoppel is in the intere st of a sound administration of the
laws," citing the Tijam case. The Supreme Court pointed out
that the doctrine of laches is "based upon grounds of public
policy which
requires,
for the peace of society, the
discouragement of stale claims" and "is principally a
question of the inequity or unfair ness of pe rm it t i ng a
right or claim to be enforced or asserted."
e. In Sarmiento vs. Salud (L-25211, Aug. 18, 1972), the
Supreme Court, in resolving the motion for recon
sideration filed therein, held that while it is true that
a record on appeal must show on its face tha t it was
perfected on time and such requirement is jurisdictional
in nature, nevertheless if the record on appeal does not
comply with this requirement but the motion to dismiss
the appeal is filed more than 6 months after the appellee
filed his brief, the motion should be denied.
The same ruling was applied in Dequito vs. Lopez
(L-27757, Mar. 28, 1968) involving virtually the same set

14

GENERA L PRINCIPLE S

of facts. These rulings would still apply in cases whe rei n


a record on appeal is required, as where multiple appeals
are allowed or in special proc eedi ngs.
f. In Vera vs. People (L-31218, Feb. 18, 1970), it was held tha
t while a j udgm e n t is null and void where it was
prom ul gate d when the presiding judge had already ceased
to hold office, since the accused failed to raise tha t issue in
the trial court and only did so after the Court of Appeals
had re nde re d a j u d gm e n t ad ve rse to him, i t would be an
injustice if all the proceedings had in the case would be
set aside since, after all, the court tha t re ndere d se nt e nc e
wa s one of com pet e nt j uri sdic t i on. The case of Carillo vs.
Allied Workers' Association of the Philippines (L-23689, Jul y 31
, 1968) was cited in support of this ruling.
g. In People vs. Casuga (L-37642, Oct. 22, 1973), the ac c use d
wa s con vi ct e d of gra v e s l a n de r , whic h offense was
within the c on c u rre n t jurisdict ion of the then Courts of
Fi rst Inst a nce and the municipal courts of capitals of
provinces or the City Court s. Inste ad of appealing to the
the n Court of Appeals or the Supreme Court, as would
have been proper, he appealed to the Court of First
Instance which
affirmed
said
conviction. On his
subse quent challenge to the appellate jurisdiction
exercised by the Court of Fi rst Insta nce , the Suprem e
Court held tha t the accused, having ta ke n his appeal
to the Court of First Inst a nce , is in estoppel to challenge
the appellate juri sdicti on of the said court.
h. In People vs. Tamani ( L- 2 21 60 -6 1 , J a n . 21 , 1974), although
the appeal of the accused was demon strabl y filed out of
time, the Suprem e Court ne ve rt hele ss reviewed the case
and rende red a judgme nt on the merits thereof, while
declaring in the same decision the dismissal of the appeal,
in view of the fact tha t the filing of the appeal out of time
was due to the fault of the defense counsel and the furt he r
consi de rati on tha t the briefs for the pa rtie s had already
been filed.

R E M E D I A L LAW C O M P E N D I U M

i. The doctrine laid down in Tijam vs. Sibong- hanoy, supra, has
been reiterated in many succeeding cases and is still
good case law. The rule up to now is that a part y' s active
participation in all sta ges of a case before the trial court,
which includes invoking the court's authorit y to grant
affirmative relief, effectively estops such pa rt y from late r
challenging the jurisdict ion of the
said court
(Gonzaga, et al. vs. CA, et al., G.R. No. 144025, Dec.
27, 2002).
j. See, moreover, the summary in Figueroa vs. People of the
Philippines (G.R. No. 147406, July 14, 2008) which apparentl y
presents the prevailing position of the Supreme Court on
the issue of when a litigant is estopped by laches from
assailing the jurisdiction of a court, in light of its other
and subsequent holdings on the matter.
18.
Jurisdic tion over a person may also be acquired
even if he was never impleaded nor summ one d in the
action as a de f e n d a n t i f he t h e r e a f t e r v o l u n t a r i l y
submitted himself to the jurisdiction of the court. Thus,
where the spouses voluntaril y signed the compromise
a gre e m e n t to gu a r a nt e e the pa ym e n t by th e original
impleaded defendants, and tha t compromise a gre e m e nt
wa s appro ve d and mad e th e basi s of th e j u d g m e n t
rende red by the court, said spouses are bound by the
judgme nt as they are in estoppel to deny the very autho
rity which they invoked. By voluntaril y ent e ri n g into
the compromise agreement, they effectively submi tted
themsel ves to the jurisdiction of the court (Rodriguez,
et al. vs. Alikpala, et al., L 38314, June 25, 1974).
19.
Sinc e a Cour t of Fi r s t I n s t a n c e (now, th e
Re gional Trial Court) is a court of ge ne ra l ori gi na l
juri sdi ct i on, w h e t h e r a pa r t i c u l a r m a t t e r shoul d be
resolved by it in the exercise of its general jurisdiction,
or in its li mi t e d j u r i s d i c t i o n as a p r o ba t e or lan d
re gi st rat ion court, is not a juri sdicti onal question but
a p r o c e d u ra l que st i o n invol ving a mode of pra c ti c e

GENERA L PRINCIPLE S

which, therefore, may be waived (Manalo vs. Mariano,


et al., L-33850, Jan. 22, 1976; Santos vs. Banayo, L31854, Sept. 9, 1982). P a r e n t h e t i c a l l y , Sec. 2 of
P.D. 1529 has elimi nate d the distinction bet wee n the
general jurisdiction of a Regional Trial Court and the
limited jurisdiction conferred upon it by the former law
when acting as a c a da st ra l court (Ligon vs. CA, et al.,
G.R. No. 107751, June 1, 1995). However, the holding
that such sit uati ons pre se n t only proc edural , and not
jurisdictional, questions still applies.
20.. Questions involving ownership of or title to real
propert y should be litigated in an ordi na ry civil action or
in the proceeding where the incident properl y belongs,
before a court of general j uri sdicti on and not before a land
re gi st ra t i o n court (Santos vs. Aquino, L-32949, Nov. 28,
1980).
21 . Sta t ute s re gul at i n g the procedure of the courts
will be construed as applicable to actions pending and
unde term ine d at the time of thei r passage, but not to
actions which have al read y become final and executory
(Borre, et al. vs. CA, et al., G.R. No. 57204, Mar. 14,
1988). Procedural laws are re trospect i ve in tha t sense
and to tha t extent (People vs. Sumilang, 77 Phil. 764;
Liam Law vs. Olympic Sawmill Co., et al., L-30771,
May 26, 1984; Yakult Philippines, et al. vs. CA, et al.,
G.R. No. 91856, Oct. 5, 1990). Thus, the provision of
B.P. Blg. 129 which elim inat ed the need for a record on
appeal was given retroactive effect to authorize the giving
of due course to an appe al , which should have been
perfected in 1982 with the re quire d record on appeal, by
relieving the appella nt of the need therefor in line with
the change of procedure under B.P. Blg. 129 (Alday vs.
Camilon, G.R. No. 60316, Jan. 31, 1983; Ouano vs. CA,
et al., L-44823, June 27, 1985; De Guzman, et al. vs.
CA, et al, G.R. No. 52733, July 23, 1985; Lagunzad vs.
CA, et al, G.R. No. 52007, Sept. 24, 1987; Mun. Gov't of

17

R E M E D I A L LAW C O M P E N D I U M

Coron vs. Carino, et al., G.R. No. 65896, Sept. 24, 1987;
Sarmiento vs. Gatmaitan, et al., L-38173, Nov. 12, 1987).
However, new court rules apply to pending cases
only with reference to proceedings therein which take
place after the date of their effectivity. They do not
apply to the extent that in the opinion of the court their
application would not be feasible or would work injustice,
in which event the former procedure shall apply. Thus,
where the application of the Rule on Summar y Procedure
will mean the dismissal of the appeal of the part y, the
same should not apply since, after all, the procedure
they availed of was also allowed unde r th e Rules of
Court (Laguio, et al. vs. Garnet, et al., G.R. No. 74903,
Mar. 21, 1980).
22. Substanti ve law is that part of the law which
creates ri ghts concerning life, liberty or propert y, or the
powers of i n st ru m e nt a l i t i e s for the a dm i ni s t r a t i o n of
public affairs (Primicias vs. Ocampo, 81 Phil. 650).
Procedural law refers to the adjective laws which prescribe
rules and forms of procedure in order tha t courts may be
able to admini st er justice (Lopez vs. Gloria, 40 Phil. 33).
Substa nti ve law creates, defines and re gul ate s rights,
as opposed to "adjective or remedial law" which prescribes
the method of enforcing the ri ghts or obtaining redress
for thei r invasion (Black's Law Dictionary, 6th Ed.,
p. 1429; citations omitted).
Procedure is the mode of proceeding by which a legal
right is enforced, as di st ingui shed from the law which
gives or defines the right, and which, by means of the
proceeding, the court is to administer. This term is com
monly opposed to the sum of legal principles constit uti ng
the substance of the law, and denotes the body of rules,
wh e t h e r of practi ce or plea ding, whereb y ri ght s are
effectuated t hroug h the successful application of the
proper remedies (op. cit., pp. 1367-1368; id.).

GENERA L PRINCIPLE S

In de t e rm i ni n g wh e t h e r a rule prescribe d by th e
S u p r e m e C our t a b r i d ge s , e n l a r ge s o r modifies an y
substa nti ve ri ght, th e tes t i s w he t he r the rule reall y
re gul at e s pr oc e du re , tha t is, the judicial process for
enforcing rights and duties recognized by the substantive
law and for justl y a dmi ni st e ri n g remedy and re dress for
a disre gard or infraction of them. If the rule take s awa y
a vested right, it is not procedural. If the rule creat es a
right, such as the ri ght to appeal, i t may be classified as
a substa nti ve matt er ; but if it operates as a means of
implementing an existing right, then the rule deals
merely with procedure (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
I t is, therefore, the na t ur e and the purpose of the
law whic h d e t e r m i n e s w h e t h e r i t i s s u b s t a n t i v e or
procedural, and not its place in the sta t ute or its inclusion
in a code. T hus, for inst ance , Art s. 539 and 1674 of the
Civil Code and Sec. 85, R.A. 296 provided injunctive rules
in ejectment cases in the trial and appellate sta ges, but
these have been properl y incorporated with modifications
as Secs. 8 and 9, respe cti ve l y, of Rule 70 of the 1964
Rules of Court (now, Sec. 15 of revised Rule 70). These
subseque nt am e nda t or y provisions on injunctions were
proper since the mere fact tha t those provisions on in
junctions were formerly included in a substanti ve st a t ut e
or code does not convert the m into or det ract from the
fact tha t they are proce dural laws, contrary to common
misimpressi on. In fact, ther e are many such procedural
rules found in the Civil Code or, for tha t matter, in other
codes or ba si call y s u b s t a n t i v e laws bu t the y do not
thereby lose their c ha ra c te r as procedural laws.
This ma tt e r is being clarified and emphasized here
in view of the Co ns t i t ut i o na l provision tha t the rules
which the Suprem e Court is authorized to promul gat e
shall not diminish, increase or modify subst ant i ve ri ghts
(Sec. 5 [5], Art. VIII, 1987 Constitution). The
improbable
position tha t a clearly procedural provision becomes a
19

R E M E D I A L LAW C O M P E N D I U M

substantive law by the mere fact tha t it is included in a


com pilati on, codification or s t a t u t o r y e n a c t m e n t of
s u b s t a n t i v e r i gh t s , a l t h o u g h onl y t o i n di c a t e th e
re m e di a l c o m p l e m e n t for th e e nf or c e m e n t thereof,
would effectively subvert the Constitutional intent and
di m i ni s h th e scope and e xt e n t of th e r u l e - m a k i n g
power of the Supreme Court.

I.
A.

CIVIL P RO CE DUR E
P RE LI M I N A R Y C O N S I D E R ATI O N S

1. The study of civil procedure includes ordinary civil


a c t i o n s , sp e c i a l civil a c t i o n s an d p r o vi s i o n a l
remedies. Special civil actions are governed by specific
and i n d i v i d u a l rul e s s u p p l e m e n t e d b y th e ge n e r a l
provisions on civil actions.
2. Definition of term s:
a.Cause of action: The delict or wrongful act or omission
c o m m i t t e d by th e de fe nda n t in violation of the
pri ma r y ri ght s of the plaintiff (Racoma vs. Fortich, et
al, L-29380, June 10, 1971).
b.Right of action: The reme dial right or right to relief gra nt e d
by law to a part y to inst itut e an action agai nst a person
who has committed a delict or wrong a ga inst him.
The cause of action is th e delict or wrong, while
the ri ght of action is the right to sue as a consequence
of tha t delict. The question as to whe t he r the plaintiff
has a cause of action is de t e rm i ne d by the a ve rme nt s
in the pl e a di n g re ga r di n g th e acts committe d by the
defendant; whet he r such acts give him a right of action
is de term ine d by the substa nti ve law. There can be no
ri ght of action w i t h ou t a ca use of action being first
established (see Espanol vs. The Chairman, etc. of the
PVA, L-44616, June 29, 1985).
A right of action is the right to presentl y enforce a
cause of action a re m e di a l ri ght affording re dre ss
for the infri ngeme nt of a legal right belonging to some
definite person; a cause of action consists of the operative
facts which give rise to such right of action. The right
of action does not arise until the performa nce of all
conditions pre ce de nt to the action, and may be ta ke n
awa y by th e r u n n i n g of th e s t a t u t e of l i m i t a t i o n s ,
21

R E M E D I A L LAW C O M P E N D I U M

through an estoppel, or by other circumstances which do


not affect the cause of action. There may be several
rights of action and one cause of action, and rights may
accrue at different times from the same cause (1 Am JUT 2d,
Sec. 2, p. 541).
c. Relief: The redress, protection, award or coercive measure
which the plaintiff pra ys the court to render in his favor as
a consequence of the delict committed by the defendant.
d.Remedy: The procedure or type of action which may be
availed of by the plaintiff as the means to obtain
the
relief desired.
e. Subject-matter: The thing, wrongful act, con tract or
propert y which is directly involved in the action,
concerning which the wrong has been done and with
respect to which the controversy has arisen (Yusingco,
et al. vs. Ong Ring Lian, L-26523, Dec. 24, 1971).
Thus, in a case for breach of contract, the contract
violated is the subject-matter; the breach by the obligor
is the cause of action; the right of action is the consequent
substa nti ve right on the part jof the obligee to sue for
redress; the relief is the dama ges or rescission or the act
which the plaintiff asks the court to order; and the remedy
is the t ype of action which may be availed of by the
plaintiff, which may be an action either for dama ges,
for rescission or for specific performance.
The subject -matt er of a given case is dete rmi ned not
by the na t ur e of the action tha t a part y is entitled to
bring but by the na ture and cha racte r of the pleadings
and issues submitted by the pa rtie s (Viray vs. CA, et al.,
G.R. No. 92481, Nov. 9, 1990).
3. Classification of actions:
a. Real action: One brought for the protection of real ri ghts,
land, t e ne m e nt s or he r e di t a m e n t s or one founded on
privity of estate only (Paper Industries Corp.

22

P RE L I MI NA R Y C O N S I D E R AT I O N S

of the Phil. vs. Samson, et al., L-80175, Nov. 28, 1975).


Example:
Accion reivindicatoria.
Personal action: One which is not founded upon the
privity of real rights or real propert y. Example: Action
for a sum of mone y.
Mixed action: One brought for protection or recovery
of real p ro pe r t y an d also for an a wa r d for da m a ge s
sustained. Example: Accion publiciana with a claim for
dama ges.
For purposes of venue, a mixed action is governed
by the rules of venue in real actions.
b. Action in rem: One which is not directed only against
pa rt ic ul a r pe rsons but a ga i nst the thing itself and the
object of which is to bar indifferently all who might be
minded to mak e any objection agai nst the right sought to
be enforced, hence th e j u d gm e n t the rei n i s binding
theoreticall y
upon
the
whole
world.
Example:
Expropriation.
Action in personam: One which is directed agai nst
particular persons on the basis of their personal liability
to e st a bl i sh a claim a ga i n s t the m and th e j u d gm e n t
wherein is binding only upon the parties impleaded or
their successors in intere st . Example: Action for breach
of contract.
Action quasi in rem: One directed agai nst pa rtic ula r
persons but the purpose of which is to bar and bind not
only said persons but any other person who claims any
int e re s t in th e prope rt y or ri gh t subject of th e suit.
Example: Judicial foreclosure of a mortga ge (Ocampo
vs. Domalanta, L-21011, Aug. 30, 1967).
A proceeding for a t t a c hm e n t of propert y is in rem if
the defendant does not appear in court, and in personam
if he a p p e a r s (Banco EspaAol-Filipino vs. Palanca,
supra).

R E M E D I A L LAW C O M P E N D I U M

c.

Transitory action: One the venue of which is dependent


generally upon the residence of the parties regardless of
where the cause of action arose. Example: Personal
action.
Local action: One which is required by the Rules to
be instituted in a particular place in the absence of an
a greem ent to the contrary. Example: Real action.
The classi fic ation of acti ons into re al , pe rsona l
or mixed is based on the subject -matter thereof. With
respect to the binding effect of the relief sought or the
judgm ent therein, actions are classified into actions in
rem, quasi in rem or in personam. Hence, a real action
may be in personam, or a personal action may be in rem
(see Hernandez, et al. vs. Rural Bank of Lucena, Inc., L29791, Jan. 10, 1978). Transitory or local actions are so
denominated on the basis of the permissible venues
thereof.

4. In Yu vs. Pacleb, etc. (G.R. No. 172172, Feb. 24, 2009), the
Supreme
Court cited
this extended discussion on
classification of civil action: The settled rule is that the aim
and object of an action de te rm i ne its cha rac t e r. Whether a
proceeding is rem, or in personam, or quasi in rem is
determined by its nature^ind purpose, and by these only. A
proceeding in personam is a proceeding enforce personal
rights and obligations brought against the person and is
based on the jurisdiction of the person, although it may
involve his right to, or the exercise of ownership of, specific
property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court. The purpose of a
proceeding in personam is to impose, through the judgment
of a court, some responsibility or liability to compel a
defendant to specifically perform some act or actions to
fasten a pecuniary liability on him. An action in
personam is said to be one which has for its object a jud gm e nt
agai nst the person, as disti nguishe d from a judgment
against the property to determine its state. It

P RE L I MI NA R Y C O N S I D E R AT I O N S

has been held tha t an action in personam is a proceeding


to enforce personal ri ghts or obligations, such action is
brought against the person.
X

On the other hand, a proceeding quasi in rem is one


brought against persons seeking to subject the propert y
of such persons to the discharge of the claims assailed. In
an acti on quasi in rem, an i n d i vi d ua l is na me d as
defendant and the purpose of the proceeding is to subject
his interests the rein to the obligations or loans burdening
the propert y. Actions quasi in rem deal with the sta tus,
ownership or liability of a particular propert y but which
are intended to operate on these questions only as between
particular parties to the proceedings and not to ascertain
or cut off the rights or inte rests of all possible claimants.
The judgm ent s therei n are binding only upon the parties
who joined in the action.

B.

JURISDICTION OF THE SUP REM E COURT


UNDE R THE 1987 CONSTITUTIO N

Article VI (Legislative Department)


"Sec. 30. No law shall be pa sse d i nc re a si ng th e
a p p e l l a t e j u r i s d i c t i o n o f th e S u p r e m e C ou r t a s
provided in this Consti tuti on wi thout its advice and
concurrence."
Article VII (Executive Depa rtme nt )
"Sec. 4. (last par.) The Supreme Court, sitting en
banc, shall be the sole judge of all contests relating to
the election, re t urns and qualifications of the Pre si dent
or Vice -President , and may prom ul gat e rules for the
purpose."
X

"Sec. 18. (third par.) The Su pr e m e Cour t may


review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proc lamati on of
ma rtial law or the suspension of the privilege of the writ
or the extension thereof, and must promulgate its decision
thereon within thirt y days from its filing."
Article VIII (Judicial Depa rtme nt )
"Sec. 2. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various
courts but may not deprive the Suprem e Court of its
jurisdiction over cases e nume ra te d in Section 5 hereof.
No law shall be passed reorganizing the Judiciary
whe n i t u n d e r m i n e s th e s e c u r i t y of t e n u r e of it s
Members."
X

"Sec. 5. The Supreme Court shall have the following


powers:
26

J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R T H E 198 7 C O N S T I T U T I O N

(1) Exercise ori ginal juri sdicti on over cases affecting


ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final j ud gm e nt s and orders of lower courts
in:
(a) All c a se s i n whic h th e c o n s t i t u t i o n a l i t y or
va l i di t y of an y t r e a t y , i n t e r n a t i o n a l or exe
cuti ve a g r e e m e n t , law, p r e s i d e n t i a l de c ree ,
proclam ation, order, inst ruction, ordinance, or
re gulation is in question.
(b) All cases involving the legality of any tax, impost,
asse ssme nt, or toll, or any penalt y imposed in
relation t he re t o.
(c) All cases in which the jurisdict ion of any lower
court is in issue.
(d) All criminal cases in which the penalt y imposed
is reclusion perpetua or hi gher.
(e) All cases in which only an error or question of
law is involved.
(3) Assign temporaril y judges of lower courts to other
s t a t i o n s a s publ i c i n t e r e s t ma y re q u i r e . Suc h
tempora ry a ssi gnm e nt shall not exceed six months
without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a
miscarriage of justice.
(5 ) P ro m ul ga t e rul e s c once rni ng the prot ec t i on and
e n f o r c e m e n t of c o n s t i t u t i o n a l ri gh t s , pl e a di n g ,
practice, and procedure in all courts, the admission
to the practice of law, the Int e grat e d Bar, and legal
assistance to the underpri vil e ge d. Such rules shall
provide a simplified and inexpensi ve procedure for

R E M E D I A L LAW C O M P E N D I U M

the speedy disposition of cases, shall be uniform for


all courts of the same grade, and shall not diminish,
i nc re a se , or modify s ub st a nt i v e ri ght s . Rules of
procedure of special courts and quasi-judicial bodies
shall re main effective unless disapproved by the
Supreme Court.
(6) Appoint all officials and employees of the Judiciary
in accordance with the Civil Service Law."
Article IX (Constitutional Commissions)
A. Common Provisions
"Sec. 7. Each Commission shall decide by a majority
vote of all its Members any case or matte r brought before
it within sixty days from the date of its submission for
decision or resol uti on. A case or m a t t e r is deeme d
submitted for decision or resolution upon the filing of
the last pleading, brief, or me m ora ndum required by
the rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by law,
any decision, order or ruling of each Commission may be
brough t to th e S up re m e Cour t on certiorari by th e
aggrieved pa rt y within t hi rt y da ys from receipt of a
copy thereof."
NO TES
1. See, in this connection, the notes under Sec. 7, Rule 56.
2. Considering the provisions of B.P. Blg. 129, the fact tha t
a ppea l s from the Se c urit i e s and E xc ha n g e Commission
and in na t ural i za t i on and de nat ura li za t i on cases should
now be ta ken to the Court of Appeals, and all de cisions
of th e c o n s t i t u t i o na l c om m i ss i o n s ar e reviewable on
original actions of certiorari, all appeals in civil cases to
the Suprem e Court can now be brought only on petition
for review on ce rti ora ri (cf. Sec. 17,

28

J U R I S D I C T I O N O F TH E S U P R E M E C O U R T
U N D E R T H E 198 7 C O N S T I T U T I O N

R.A. 296, as a me nde d by R.A. 5440; Santos, et al. vs.


CA, et al., G.R. No. 56614, July 28, 1987). Moreover, as
hereafter explained, Sec. 9 of B.P. Blg. 129 was ame nde d
by R.A. 7902 to further vest appellate jurisdiction in the
Court of Appeals over jud gm e nt s, final orders, awa rds or
re solutions of th e Civil Service Commi ssion and the
Central Board of Asse ssment Appeals.

C.

THE JUDICIARY REORGANIZATION ACT OF


1980
ORGANIZATION

1. The Judiciary Reorganization Act of 1980 (Batas Pambansa


Blg. 129) took effect upon its approval on August 14,
1981 (Sec. 48). However, the transitory pro vision (Sec. 44)
de cl a re d tha t its pr o vi si on s "shall i m m e di a t e l y be
c a rri e d out in a c c or da n c e wit h an Execut i ve Order to be
issued by the P re si de n t . The Court of Appe a l s, the
C ourts of Fi rs t In s t a n c e , th e Circuit Cri mi na l Courts,
the J uve ni l e and Domestic Relations Courts, the Courts
of Agra ri an Relations, the City Courts, the Municipal
Courts and the Municipal Circuit Courts shall continue to
function as presentl y constituted and organized until the
completion of the reorganization provided in this Act as
declared by the President. Upon such declaration, the
said courts shall be deemed automaticall y abolished and
the incumbents thereof shall cease to hold office. The
cases pending in the old Courts shall be transferred to the
appropriat e Courts constituted pursua n t to this Act,
together
with the pe rt i ne nt functions, records,
equi pment, prope rt y and the necessary personnel." The
constitutionalit y of this Act was upheld by the Supre m
e Court en banc, with one dissent, in De la Liana, et al.
vs. Alba, et al. (G.R. No. 57883, Mar. 12, 1982).
2. . Th e C our t of Ap p e a l s wa s re pl a c e d by th e
Inte rmediate Appellate Court consisting of a Presiding
Justic e and 49 Associate Appellate Justice s, which shall
sit in 10 divisions each composed of 5 members, except
only for th e pu rp os e of e x e rc i si n g a d m i n i s t r a t i v e ,
ceremonial or other non-adjudicatory functions in which
instances it may sit en banc (Secs. 3 and 4).

30

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

However, under Executive Order No. 33 (July 28,1986),


a m e ndi n g B.P. Blg. 129, th e Cour t of Appe a l s wa s re c r e a t e d , consi st ing of a P re si di n g J usti c e an d 50
Associate J u s t i c e s , whic h shal l exe rcise its powers ,
functions and duties t hrough 17 divisions, each composed
of 3 me m be rs . It may sit en banc for the purpos e of
exerci si ng a d m i ni s t r a t i ve , c e re m o ni a l or ot he r nonadjudicatory functions (Secs. 3 and 4, as amended).
A majority of the actua l me m be rs of the Court shall
constitute a quorum for its sessions en banc. Three (3)
members shall const itut e a quorum for the sessions of a
division. The una nim ous vote of the three mem bers of a
division shall be necessary for the pronounc em e nt of a
decision or final resolution, which shall be reached in
consul tati on before the writ i n g of the opinion by any
member of the division. In the event tha t the thre e
members do not reach a una nim ous vote, the Presiding
Justice shall reque st the Raffle Committee of the Court
for the de s i gn a t i o n of two a d di t i on a l J u st i c e s to sit
temporaril y with them, forming a special division of five
m em be r s and th e c o nc ur re nc e of a majorit y of such
division shall be necessary for the pronounc em e nt of a
decision or final resol uti on. The de si gna tion of such
a d di t i on a l J u s t i c e s shal l be mad e st ri c tl y by raffle
(Sec. 11, as amended).
E xec ut i ve Orde r No. 33 re pe al e d Sec. 8 of B.P.
Blg. 129 which had provided for grouping of divisions
to handle specific classes of cases (Sec. 4). It further
provided tha t the ter m "Int e rm e dia t e Appellate Court,
Pre si di ng Ap pe ll a te J u st i c e and Associate Ap pel l at e
Justice(s)" used in B.P. Blg. 129 or in any other law or
executive order shall hereafter mean Court of Appeals,
Presiding Justic e and Associate Justice(s), respectivel y
(Sec. 8).
Additionally, effective Fe bruary 2, 1997, B.P. Blg. 129
was f u rt h e r a m e n d e d by R.A. 8246 (Appendix G),
pursua nt to which the Court of Appeals shall consist of

R E M E D I A L LAW C O M P E N D I U M

a Presiding Justice and 68 Associate Justices, and shall


be composed of 23 divisions of 3 members each, with the
first 17 divisions stationed in Manila, the 18th to 20th
divisions in Cebu City, and the 21st to 23rd divisions in
Cagayan de Oro City.
3. The Courts of First Instance, the Circuit Criminal Courts,
the Juvenile and Domestic Relations Courts and the
Courts of Agrarian Relations have been inte grated into
the Regional Trial Courts for each of the 13 Judicial Regions
which replaced the former 16 Judicial Districts, each
Regional Trial Court to consist of the number of branches
provided in Section 14 of the Act.
4. The city courts and municipal courts in the National
Capital Judicial Region have been merged into a
Metropolitan Trial Court of Metro Manila and were
converted into branches thereof (Sec. 27). The Supreme
Court shall constitute other Metropolitan Trial Courts
in such other metropolitan areas as may be established
by law and whose t e rri t oria l jurisdict ion shall be co
extensive with the cities and municipalities comprising
such metropolitan area (Sec. 28).
5. The city courts in other cities which do not now or
hereafter form par t of a metropolita n area shall be known
as Municipal Trial Courts, with the corresponding number
of branches (Sec. 29), and the municipal courts, whet he r of
an ordinary municipality or of a capital of a province or
sub-provinc e but not comprised wit hi n a metropolitan
area and a municipal circuit, shall likewise be known as
Munic ipal Trial Court s with th e corre sponding number
of branches (Sec. 30). The municipal circuit courts shall be
known as Municipal Circuit Trial Courts and the Supreme
Court may further reorganize the same (Sec. 31).
6. Excepted from the coverage of the Act are the S u p r e m e
C our t an d th e S a n d i g a n b a ya n , bu t the s e

32

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

courts have been affected by the jurisdictional changes


introduced therein. The provisions of the Judiciary Act
of 1948 (R.A. 296, as amended), R.A. 5179, as amended,
the Rules of Court an d all ot he r s t a t u t e s , l e t t e r s of
i n s t r u c t i o n s an d ge n e r a l o r d e r s o r p a r t s t he re of,
inconsistent with the provisions of this Act are repealed
or modified accordingly.
7. No mention is made of the Court of Tax Appeals since the
Act is basically on the matt er of jurisdictional changes.
However, appeals from its jud gm e nt s or final orders, which
used to be governed by R.A. 1125, were later required to be
ta ken to the Court of Appeals pursua n t to Revised
Admi ni st rati ve Circular No. 1-95 of the Supreme Court,
which thereafter was adopted as Rule 43 of these revised
Rules. See, however, the more recent changes in
R.A. 9282 (Appendix CC).
J URISD ICT IO N
I.

Inte rmediate Appellate Court (now, the Court of


Appeals):

"Sec. 9. Jurisdiction. The Int erme diat e Appellate


Court shall exercise:
(1) Original jurisdict ion to issue writs of man damus,
prohibition, certiorari, habeas corpus, and quo warranto,
and auxiliary writs or processes, whet he r or not in
aid of its appellate jurisdiction;
(2) Exclusive original juri sdicti on over
actions for
a nnulm e nt of judgme nts of Regional Trial Courts; an d
(3) Exclusive appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards
of Regional Trial Courts and quasi-judicial agencies,
i n st ru m e nt a l i t i e s, boa rds, or commissions, except
those falling within the appellate jurisdiction of the
Supreme Court in accordance with the Constitution,

R E M E D I A L LA W C O M P E N D I U M

the provisions of this Act, and of subpara gra ph (1) of


the third pa ra gra ph and s ub pa ra gr a p h (4) of the
fourth para graph of Section 17 of the Judiciary Act
of 1948.
The Inte rmediate Appellate Court shall have the
power to try cases and conduct he a ri n gs, receive
evidence and 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 and further
proceedings.
These provisions shall not apply to decisions and
interlocutory orders issued under the Labor Code
of th e Phil i ppi ne s and by th e Ce n t ra l Boa rd of
Assessment Appeals."
The second pa ra gra ph of Sec. 9 above set forth was
subse que nt l y a me nde d by Sec. 5 of Execut i ve Orde r
No. 33 to read as follows:
"The Court of Appeals shall have the power to
re cei ve e vi de nc e an d pe rform any an d all acts
necessary to resolve factual issues raised in (a) cases
falling within its original jurisdiction, such as actions
for annulment of judgments of regional trial courts,
as provided in pa ra gra ph (2) hereof; and in (b) cases
falling within its appellate juri sdicti on wherei n a
motion for new trial based only on the ground of
newly discovered evidence is granted by it."
However, effective March 18, 1995, Sec. 9 was further
amended by R.A. 7902 (Appendix F) and now provides:
"SEC. 9. Jurisdiction. The Court
shall exercise:

of

Appeals

"(1) Original jurisdiction to issue writs of man


damus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whether
or not in aid of its appellate jurisdiction;

J U D I C I A R Y R E O R G A N I Z AT I O N AC T O F 198 0

"(2) Exclusive original jurisdiction over actions


for annul me nt of judgm ent s of Regional Trial Courts;
and
"(3) Exclusive appellate jurisdiction over all final
judgm ent s, decisions, resolutions, orders or awards
of Regional Trial Courts and quasi-judicial agencies,
i nst rume nt al i ti e s, boards or commissions, including
the Securities and Exchange Commission, the Social
Securit y Commission, the Employees Compensation
Commission and the Civil Service Commission, except
those falling within the appellate jurisdiction of the
Suprem e Court in accordance with the Constitution,
the Labor Code of the Philippines under Pre si dential
Decree No. 442, as amended, the provisions of this
Act, and of subpa ra gra ph (1) of the third pa ra gra ph
and s u b p a r a gr a p h (4) of the fourth p a r a gr a p h of
Section 17 of the Judiciary Act of 1948.
"The Court of Appeals shall have the power to
try cases and conduct hearings, receive evidence and
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. Trials
or he a ri ngs in the Court of Appeals must be con
t i n uo u s an d mus t be com plete d wi t hi n thre e (3)
months unless extended by the Chief Justice."
NOTES
1. Unlike the provisions of Sec. 30 of the Judiciary Act, B.P.
Blg. 129 vested the Int e rm e di a t e Appel late Court with
original jurisdiction to issue writs of man damus,
prohibition, certiorari, habeas corpus, and all other auxiliary
writs and processes whet he r or not in aid of its appellate
jurisdiction and added the special civil action of quo
wa rra nt o to such original jurisdiction. Furt he rm ore , the
Inte rmediate Appellate Court had exclusive original

R E M E D I A L LAW C O M P E N D I U M

jurisdiction over actions for the annulment of judgments


of the Regional Trial Courts. The latter, however, retain
thei r jurisdict ion over actions for th e a n n u l m e n t of
j u d gm e nt s of th e inferior courts (Sec. 19), i.e., th e
Met ropol it a n, Municipal and Municipal Circuit Trial
Courts (Sec. 25).
2. Amendatory of previous legislation, the appellate jurisdiction
of the then Intermediate Appellate Court over quasijudicial agencies, or the so-called a dmi ni st rat i ve
tribunals, was extended to and included the Securities
and Exc ha nge Commission and th e different boa rds
which took the place of the quonda m Public Service
Commission, i.e., the Boards of Tra nsportat ion, Commu
nications, and Power and Waterworks, whose decisions
were theretofore appealable to the Supreme Court. Cases
involving petitions for naturalization and denaturalization
are now exclusively appealable to the Court of Appeals.
3. However, by specific provisions of Sec. 9 of this Act, the
Suprem e Court re t ai ne d exclusive appe ll a te jurisdiction
over the decisions of the two constitutional commissions,
i.e., Commission on Elections and Com mission on Audit
(see 1973 Constitution, Art. XII-C and D). Under the 1987
Constitution, this exclusive appellate j u r i s d i c t i o n wa s
mad e t o inc l ude th e Civil Se r vi ce Commission (Sec. 7, Art.
IX-A). Also, likewise specifically excluded from the appellate
jurisdiction of the Interme diate Appellate Court were
decisions and interlocutory orders under the Labor Code,
such as those promulgated by the Se c re t a r y of La bor and
E m pl o ym e n t and the National Labor Relations
Commission, those of the Central Board of Assessment
Appeals, and the 5 types of cases which fall within the
exclusive appellate jurisdiction of the Supreme Court
under the 1973 Constitution (Sec. 5[2], Art. X)
an d
r e p r o d u c e d in th e 1987 C o n s t i t u t i o n (Sec. 5[2J, Art.
VIII), as amplified in the provisions of the Judiciary Act
specified by said Sec. 9.

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

Furt he rm ore , in view of the exclusionary provision


in said Sec. 9, the Inte rmediate Appellate Court appeared
to have no appellate jurisdiction over the cases in the
specified pa ra gra phs of Sec. 17 of the Judiciary Act, i.e.,
those i nvol vi ng c o n s t i t u t i o na l , ta x or j u r i s d i c t i o na l
questions even if the same also involve questions of fact
or mixed questions of fact and law which were appealable
to the Court of Appeals under Sec. 17 of the Judiciary
Act, as amended. It is believed tha t despite the present
formulation of said Sec. 9(3) of B.P. Blg. 129, the former
rule, vesting the Court of Appeals with appellate juris
diction in the aforestated cases whene ver a factual issue
is involved, should still apply.
As indicated earlier, with the ame ndme nt s introduced
by R.A. 7902, the dispositions of the Civil Service Com
mission and the Ce nt ral Board of Asse ssme nt Appeals
are now within the exclusive appellate jurisdiction of the
Court of Appeals.
4. .

While th e
Intermediat e
Appe l la t e Court was
authorized to receive evidence on factual issues on appeal,
this evidentiary hearing contem plat es "incidental facts"
which were not touched upon or fully heard by the trial
court, and not an ori gi na l and full tria l of the main
factual issue which properly pe rta i ns to the trial court
(Lingner & Fisher GMBH vs. IAC, et al., G.R. No. 63557,
Oct. 28, 1983). This powe r to conduc t new tri al s or
further proceedings is not obligatory on the appellate
court and i t may re m a n d th e case to the tria l court
for tha t purpose (De la Cruz, etc. vs. IAC, et al., G.R.
No. 72981, Jan. 29, 1988).

5. The exclusive appellate jurisdiction of the Court of Appeals


provided for in Sec. 9(3) of B.P. Blg. 129 over final orders or
rulings of quasi-judicial instrume ntali ties, boards or
commissions refers to those which resulted from
proceedings where in the adm i ni st ra ti ve body involved
exercised quasi-judicial functions. Such quasi-judicial

37

R E M E D I A L LAW C O M P E N D I U M

action or discretion involves the investigation of facts,


holding of hearings, drawing conclusions therefrom as a
basis for official action, and exercising discretion of a
judicial nat ure . Quasi-judicial adjudication requi res a
determination of rights, privileges and duties resulting
in a decision or order which applies to a specific situation.
Rules and regulations of general applicability issued by
the administrati ve body to implement its purely adminis
trative policies and functions, or those which are merely
incidents of its inhe rent admi ni st rati ve functions, are
not included in the appealable orders contemplate d in
said provision, unless otherwise specifically provided by
other laws governing the matter. Controversies arising
from such orde r s are wit hi n th e c ogni za nce of th e
Regional Trial Courts (Lupangco, et al. vs. CA, et al.,
G.R. No. 77372, April 29, 1988).
6. It was formerly held tha t the 30-day period to a ppea l to the
I n t e r m e d i a t e Appe l la t e Cour t from a decision or final
order of the Securities and Exchange Commission,
p u r s u a n t to its rules issued conse que nt to Sec. 6 , P.D.
902-A, had not been affected by B.P. Blg. 129 which
pro vi de s for a 15-day a ppea l period from decisions of
courts of justice. The Securities and Exchange Commission
is not a court; it is an adminis trative agency. Repeals by
implication are not favored (Gimenez Stockbrokerage & Co.,
Inc. vs. SEC, et al., G.R. No. 68568, Dec. 26, 1984).
7. The aforesaid doctrine was take n into
account by the
Supreme Court in an appeal from a decision of the Insurance
Commission to the then Int erme diat e Appellate Court since
Sec. 416(7) of the Insurance Code (P.D. 612, as amended)
provides for a 30-day period for appeal from notice of a final
order, ruling, or decision of the Com mission.
The
Supreme Court noted that if the provisions of R.A. 5434
were to be applied, pursua n t to Par. 22(c) of the Int e rim
Rules which governs appeal s from quasi -

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

judicial bodies, Sec. 2 thereof provides tha t the appeal


should be filed within 15 days from notice of the ruling,
award, order, decision, or judgm ent or from the date of
its last publication if required by law, or in case a motion
for reconsideration is filed within the period for appeal,
then within 10 days from notice or such publication of
the resolution den ying the motion for re conside rati on.
Nevertheless, in line with the ruling in Gimenez, since
the Insurance Commission is likewise an admini st rati ve
body, appeals from its final orders, decisions, resolutions,
or a wards may not necessaril y be deemed modified by
Sec. 39 of B.P . Blg. 129 which limit s th e period to
appeal to 15 days (Midland Ins. Corp. vs. IAC, et al.,
G.R. No. 71905, Aug. 13, 1986; see also Zenith Ins. Corp.
vs. IAC, et al, G.R. No. 73336, Sept. 24, 1986; Malayan
Ins. Co., Inc. vs. Arnaldo, et al., G.R. No. 67835, Oct. 12,
1987).
8. The foregoing doctrines, however, are no longer controlling
in view of Ci rc ular No. 1-91 issued by the Supre m e Court
on Fe brua r y 27, 1991 which provided that appeals from
quasi-judicial agencies shall be take n to the Court of
Appeals within 15 days from notice or last publication of th
e j ud gm e n t or final order. This was more re cent l y
furt he r amplified by Revised Adminis trati ve Circular
No. 1-95 which took effect on Jun e 1, 1995, and has now
been formulated as Rule 43 of these revised Rules.
9. It will also be recalled that appeals from the decisions, orders
or rulings of the three constit uti onal commissions, i.e.,
Civil Service Commission, Commission on Elections and
Commission on Audit, may be brought to the Suprem e
Court on ce rtiora ri within 30 days from receipt thereof
unless otherwise provided by the Consti tution or by law
(Sec. 7, Art. IX-A, 1987 Constitution). However, as earlier
stated, Sec. 9 of B.P. Blg. 129 which originally contained
the same juri sdi ct i onal rule was subsequentl y amended by
R.A. 7902, effective March 18,

39

R E M E D I A L LAW C O M P E N D I U M

1995, to provide tha t appeal s from the Civil Service


Commission should be taken to the Court of Appeals.
10. In the landmark decision in St. Martin Funeral Home vs.
NLRC, et al. (G.R. No. 130866, Sept. 16, 1998), the
Supreme Court clarified that ever since appeals from the
NLRC to the Supreme Court were eliminated, the
legislative intendment is that the special civil action of
certiorari was and still is the proper vehicle for judicial
review of decisions of the NLRC. All references in the
amended Sec. 9 of B.P. Blg. 129 to supposed appeals from
the NLRC to the Suprem e Court are i nte rpre te d and
declared to mean and refer to petitions under Rule 65.
Consequently, all such petitions should be initially filed
in the Court of Appeals in strict observance of the rule on
hierarchy of courts. The concurrent original jurisdiction
of the Supre m e Court can be a va ile d of only unde r
compelling and exceptional circumstances.
11. . On a different ra tionale , the Supre m e Court ruled in
Fabian vs. Desierto, etc., et al. (G.R. No. 129742, Sept. 16,
1998) tha t a ppea l s from th e Office of th e Ombudsman
in administrative disciplinary cases should be taken to the
Court of Appeals via a verified petition for review under
Rule 43 . Striking down as unconstitutional Sec. 27, R.A.
6770 (O m b ud sm a n Act of 1989) which a u t h o r i z e d suc
h a pp e a l t o th e S u p r e m e Cour t "in a c c or da n c e
wit h Rule 45," i t wa s poi nte d out tha t appeals
under Rule 45 apply only to judgme nts or final orders
of the courts enumera ted under Sec. 1 thereof, and not to
those of quasi-judicial agencies. Furthermore, that
provision of R.A. 6770 violates the proscription in Sec. 30,
Art. VI of the 1987 Consti tuti on a ga i nst a law which
increases the appellate jurisdiction of the Supreme Court
without its advice and consent.
II.

Regional Trial Courts:


"SEC.

19. Jurisdiction

in

civil cases.

Re gional

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

Trial Courts shall exercise exclusive original jurisdiction:


(1) In all civil actions in which the subject of the litigation
is incapable of pecuniary estimation;
(2) In all civil actions which involve the title to, or
possession of, real propert y, or any inte rest the rei n,
where the assessed value of the prope rt y involved
exceeds Twent y thousand pesos (P20.000.00) or, for
civil actions in Metro Manila, where such value exceeds
Fifty t h ou sa n d pesos (P50.000.00) except actions for
forcible entry into and unlawful de tainer of lands or
buildings,
original jurisdiction over which i s
conferred upon th e Met ropol it a n Trial Court s,
Municipal Trial Courts and Municipal Circuit Trial
Courts;
(3) In all acti ons in a dm i ra l t y and ma rit i m e jurisdiction
where the demand or claim exceeds One hundre d
t housa nd pesos (F100.000.00) or, in Metro Manila,
where such de mand or claim exceeds Two hundred
thousa nd pesos (P200.000.00);
(4) In all m at t e rs of probate, both te stat e and i n t e s t a t e ,
w he r e th e gros s va l u e o f th e e s t a t e exceeds One
hundre d thousa nd pesos ( P 100,000.00) or, in probate
m at t e rs in Metro Manila, where such gross value
exceeds Two hundre d thousand pesos (P200,000.00);
(5) In all a c t i o n s i nvol vi ng th e c on t ra c t of ma rria ge
and ma rital relations;
(6) In all cases not within the exclusive juris di ct i o n of
an y c ourt , t r i b u n a l , pe rs o n or body exercising
[jurisdiction of any court, tribunal, person or body
e x e r c i s i n g ] j u d i c i a l or q u a s i - j u d i c i a l functions;*
(7) In all civil ac ti ons special p roc e e di n gs *
' T h e b r a c k e t e d p or ti o n in Par . (6 ) a p p e a r s to be a t y p o g r a p hi c a l
e r r o r by r e pe ti t i on , w hil e th e i ndi c a t e d por tio n in Par. (7) s houl d hav e a
c onj unc t i o n b e t w e e n "civil ac tions " an d "special pr oc e e d i ngs . "

41

R E M E D I A L LA W C O M P E N D I U M

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 ot he r cases in which th e de ma nd , exclusive of
inte rest, da m a ge s of wha t e ve r kind, attorne y' s fees,
litigation expenses and costs or the value of the
propert y in controversy exceeds One hundre d
thousand pesos (PlOO.OOO.OO) or, in such other cases
in Metro Manila, where the de ma nd, exclusive of the
abovementioned items exceeds Two hundred thousand
pesos (P200.000.00)." (As amen ded by R.A. 7691)
X

"Sec. 21 . Original jurisdiction in other cases.


Regional Trial Courts shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohi bition,
mandamus, quo warranto, habeas corpus, and injunction
which may be enforced in any par t of their respective
regions; and
(2) In actions affecting amba ssadors and other public
ministers and consuls."
"Sec. 22 . Appellate jurisdiction. Regional Trial
Courts shall exercise appellate jurisdiction over all cases
decided by Met ropolita n Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts in their re
spective te rrit ori al jurisdict ions. Such cases shall be
decided on the basis of the entire m e m ora nd a and/or
briefs as may be submitted by the parties or required by
the Regional Trial Courts. The decisions of the Regional
Trial Courts in such cases shall be appealable by petition
for review to the Int e rme di at e Appellate Court which
may give i t due course only when the petition shows
prima facie that the lower court has committed an error of
fact or law that will wa rra nt a reversal or modification of

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

the decision or j udgm e nt sought to be reviewed."


"Sec. 23 . Special jurisdiction to try special cases.
The Suprem e Court may desi gnate certain bra nc hes of
the Regional Trial Courts to handle exclusively criminal
cases, juvenile and domestic re lati ons cases, a gra ria n
cases, urban land reform cases which do not fall under
the juri sdicti on of qua si -j udic ial bodies and agencies,
and/or such ot he r special cases as the Supre m e Court
may dete rmi ne in the inte rest of a speedy and efficient
admini st rati on of justice."
NO TES
1. R.A. 7691 , which took effect on April 15, 1994 (see Appendix
N), e x p a n de d th e j u r i s d i c t i o n of th e m e t ro pol i t a n ,
m u n i c i p a l an d m u ni c i pa l circ uit tri a l courts in civil an d
c rim i nal cases, the am e nde d civil jurisdiction being set
out hereinafter. In Administrative Circular No. 09-94 (see
Appendix O), the Suprem e Court, by wa y of gu i d e l i n e s in
th e i m p l e m e n t a t i o n of said amendatory Act, made the
clarification that:
"2 . Th e e x c l u s i o n of th e t e r m ' d a m a g e s of
wh a t e ve r kind' i n d e t e r m i ni n g the j u ri sd i c t i ona l
am oun t unde r Section 19(8) and Section 33(1) of
B.P. Blg. 129, as ame nde d by R.A. No. 7691, applies
to cases where the da m a ge s are merely incidental
to or a conse quence of th e mai n cause of action.
However, in cases where the claim for dama ges is the
main cause of action, or one of the causes of action,
the a m ou n t of such claim shall be consi de red in
determining the jurisdiction of the court."
This j u r i s d i c t i o n a l rul e wa s a pp l i e d in Ouano vs.
PGTT International Investment Corp. (G.R. No. 134230,
July 17, 2002).
On the m at t e r of the jurisdictional amount in civil
cases, R.A. 7691 additionall y provides:

43

R E M E D I A L LAW C O M P E N D I U M

"Sec. 5. After five (5) years from the effectivity of


this Act, the jurisdictional am ount s mentioned in
Sec. 19(3), (4), and (8); and Sec. 33(1) of Ba t a s
Pambansa Blg. 129 as amended by this Act, shall
b e a dj us t e d t o Two h u n d r e d t h o u s a n d pe so s
(P200.000.00). Five (5) years thereafter, such juris
dictional amounts shall be adjusted further to Three
hundre d thousand pesos (P300,000.00): Provided,
howe ver, Tha t in the case of Metro Ma ni la , the
a b o ve m e n t i o ne d j uri sd i c t i ona l a m o u n t s shal l be
adjusted after five (5) ye ars from the effectivity
o f thi s Act t o Fou r h u n d r e d t h o u s a n d peso s
(P400.000.00)."
2. .

The juri sdicti on of the Regional Trial Courts differs


from that of the former Courts of First Instance in the
following respects:

a. While unde r the Judic i a r y Act, all actions in admi ralt y


and ma rit i me juri sdicti on were exclusi vel y cognizable by
the Court of First Instance re gardless of the value of th
e prope rt y involved or th e a m oun t of plai nti ffs claim (Sec.
44[d]), the y are now within the exclusive jurisdiction of the
Regional Trial Courts only if the value or claim exceeds P
100,000 or, in Metro Manila, P200,000, otherwise
jurisdiction is vested in the inferior courts (Sec. 33).
b. The J u di c i a r y Act vested th e Courts of Fi rs t Inst a nce
with exclusive jurisdict ion in all m a t t e r s of probate,
whe t he r te stat e or inte sta te (Sec. 44[e]). The Regional Trial
Courts now have such exclusive jurisdiction if the gross
value of the estate exceeds P 100,000 or, in Metro Manila,
P200.000, otherwise the proceedings are cognizable by the
inferior courts (Sec. 33).
c. Actions for annulme nt of marriage and all other special cases
and proceedings not otherwise provided for were exclusively
cognizable by the Courts of First Instance under
the
Judicia ry Act (Sec. 44[e]) or, unde r special

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

le gi sla tion, by th e J u ve ni l e an d Dome st i c Re l a t i o n s


Courts. The Juveni le and Domestic Relations Courts and
the Courts of Agra ri an Reform ha ving been inte gra ted
into the Re gional Trial Court s, th e l at t e r shall have
exc l usi ve ori gi n a l j u r i s d i c t i o n over sai d c a se s an d
proceedings but they shall continue to apply the special
rules of procedure unde r the pre se nt laws provided for
domestic relations cases and a gra ri a n cases, unless the
same are subse quent l y amended by such law or rules of
court as may be prom ul gate d (Sec. 24).
3. The writs of certiorari, prohibition, m a nda m us, quo
wa rra nt o, habeas corpus, and injunction issued by th e
R e gi o n a l Tri a l C o u r t s ar e e n f o r c e a b l e w i t h i n their
respective regions, while under the Judiciary Act (Sec.
44[hJ), the s e could be enforced only wit hi n the respective
provinces and districts unde r the jurisdiction of the
Courts of First Instance.
4. .

The concurre nt j uri sdicti on bet wee n the Courts of First


Instance and the inferior courts in cases provided for unde r
the Judicia ry Act has been elim inat ed. The Regional
Trial Courts shall exercise exclusive original jurisdiction
in gua rdia nshi p
and adoption cases which, under the
a m e ndm e nt s of the Judic iar y Act by R.A. 643 and R.A.
644, were within the confluent juri sdicti on of the inferior
courts. The conc urrent jurisdic tion be tween the Courts of
Fi rst Insta nce and the City Courts over the cases sta ted
in Sec. 3, R.A. 6967, i.e., petitions for change of name of
na turali ze d citizens, cancellation or correction of
t ypographical e rrors in the city re gistry, and ej ec t me nt
cases wher e the issue of owne rshi p is involved, ha s
li kewise been el im i nat e d.
Said law i s deemed
re pea l e d by B.P. Blg. 129 (Lee vs. Presiding Judge,
etc., et al., G.R. No. 8789, Nov. 10, 1986).

5.

. The concurrent jurisdiction between the Courts o f


Fi r s t I n s t a n c e an d infe ri o r c ou rt s h a vi n g bee n
abolished, the decisions of the inferior courts in all cases
45

R E M E D I A L LA W C O M P E N D I U M

are now appealable to the Regional Trial Courts, except


ca da st ra l and land re gi st rat ion cases decided by the
inferior courts in the exercise of delegated jurisdiction
(Sec. 34).
6.Admiralty jurisdiction regulates maritime matters and cases,
such as contracts relating to the tra de and busine ss of the
sea and essentiall y fully m a ri t im e in character, like
maritime services, tra nsacti ons or casual ties
(see
Macondray & Co. vs. Delgado Bros., Inc., 107 Phil. 781;
Delgado Bros., Inc. vs. Home Insurance Co., L16131, Mar. 27,
1961; Elite Shirt Factory, Inc. vs. Cornejo, L-26718, Oct.
31, 1961; Negre vs. Cabahug Shipping & Co., L-19609,
April 29, 1966).
7. Civil actions in which the subject of the litigation
is
incapa ble of pe c unia r y e st im a ti on have inva ria bl y been
within the exclusive original jurisdict ion of the courts of
general jurisdiction, i.e., the former Courts of First
Instance, now the Regional Trial Court s. Thus, actions for
support which will require the de te rm i na t i on of the civil
stat us or the right to support of the plaintiff, those for the
a nnulm e nt of decisions of lower courts, or those for the
rescission or reformation of contracts are incapable of
pecuniary estimation.
a. Where the action supposedly for a sum of money required the
dete rmi nati on of whether the plaintiff had complied with
the condition prece dent in the contrac t which, if complied
with, would entitle him to the award of the a m oun t
claimed, the action is one for specific pe rform ance and not
for a su m of mone y, hence th e relief sought was
incapable of pecuniary estimation and was within the
jurisdict ion of the then Court of Fi rst Inst a nce
(Ortigas
& Co. vp. Herrera, et al., L-36098, Jan. 21, 1983).
b.An action to compel the obligor to complete the construction
of a house is one for specific performance

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

and is incapable of pecuniary estimation, hence jurisdic


tion is vested in the Regional Trial Court. Where the
complaint in said case, however, contains an alternati ve
pra ye r for th e p a ym e n t to th e obligee of a su m not
exceeding the pre se nt jurisdictional amount of F100,000,
or in Metro Manila, P200.000, in lieu of the completion of
the construction, jurisdiction is in the inferior court as
such alternati ve pra yer make s the action one for a sum
of money (see Cruz vs. Tan, 87 Phil. 627).
c. An action for P1.250 and/or for the foreclosure of a chattel
mort gage of personalt y worth F15,340 (now, it should be
more tha n PIOO.OOO or, in Metr o Ma ni l a , P200.000 ) wa s
unde r th e jurisdict ion of th e Court of First Inst a nce
beca use of the l at t e r al te rna ti ve relief sought (Good
Development Corp. vs. Tutaan, et al., L-41641, Sept.
30,1976). Jurisdiction was likewise vested in the Court of
First Insta nce
where
none
of the
claims of the
pa rt ne rshi p ' s creditors exceeded P2.000 but the suit also
sought the nullification of a contract executed by and
between the former pa rt ne rs, as the latter cause of action
is not capable of pecuniary estimation (Singson, et al. vs.
Isabela Sawmill Co., et al., L-27343, Feb. 28, 1979).
d. Whe re the case hinges upon the correct inter pretation of
the renewal clause of a lease contract, the action is not for
unlawful detainer but one which is not capable of pecuniary
estimation and is, therefore, outside the jurisdiction of the
inferior court (Vda. de Murga vs. Chan, L-24680, Oct. 7,
1968). But where the ejectment case was decided against
the defendants because of non pa ym ent of re nt al s,
although the int e rpre t at i on of the renewal clause of the
lease contract was also involved therein, the same was
within the jurisdiction of the in ferior courts
(Nueva
Vizcaya Chamber of Commerce vs. CA, et al., L-49059,
May 29, 1980).

47

R E M E D I A L LA W C O M P E N D I U M

III. Family Courts:


1. On October 28, 1997, Congress enacted R.A. 8369
( Fa m il y C ourt s Act of 1997; see Appendix P) establishing
a Family Court in every province and city and, in case the
city is the provincial capital, the Family Court shall be
established in the municipality with the highest
population. Pending the est abli shme nt of such Family
Courts, the Supreme Court shall desi gnate the same from
among the bra nc he s of the Regional Trial Courts
enume rate d in the Act; and in area s where there are no
Famil y Court s, the cases which ar e wit hi n its exclusive
original jurisdiction shall be adjudicated by the Regional
Trial Court.
2. . Fu rt he r amendatory of the provisions of B.P. Blg. 129, as amen
exclusive original jurisdiction in the following civil cases
or proceedings:
a.
Petitions for gua rdi a nshi p, custody of children,
habeas corpus in relation to the latter;
b. . P e t i t i o n s for a d o p t i o n
revocation thereof;

of

childre n

an d th e

c. Complaints for annulment of marriage, declaration of


nullity of marria ge and those relating to ma rital sta tus and
propert y relations of husband and wife or those living
to ge t he r unde r different sta t u s and a gre e m e nt s , and
petitions for dissolution of conjugal pa rt nership of gains;
d. Petitions for support and/or acknowledgment;
e. Summar y judicial proceedings brought under the
provisions of Executive Order No. 209 (Family Code of
the Philippines);
f. Petitions for declaration of sta tus of children as abandoned,
dependent or neglected children, petitions for voluntary
or involuntary commitment of children; the s us pe ns i o n ,
t e r m i n a t i o n , or re s t o r a t i o n of p a r e n t a l authorit y under
P.D. 603, Executive Order No. 56 (Series

J U D I C I A R Y R E O R G A N I Z A TI O N AC T O F 198 0

of 1986), and other related laws;


and

g. Petitions for the constitution of the family home;

h. Cases of domestic violence agai nst women and


children, as defined therein, but which do not constitute
criminal offenses subject to crimi nal proceedings and
penalties.
3 . I m p l e m e n t i n g th e fore goi ng pr o vi si on s , th e
Supreme Court approved on March 4, 2003 the Rule on
D e c l a r a t i o n of Ab s ol ut e Null i t y of Void M a r r i a ge s
an d A n n u l m e n t o f Voi da bl e M a r r i a g e s i n A.M.
No. 02-11-10-SC (see Appendix AA) and th e Rule on Le ga
l S e p a r a t i o n i n A.M. No. 02 -11-11-S C (see Appendix
BB).
IV. Metropolit an Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts:
"SEC. 33 . Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts in Civil Cases. Me t ropoli t a n Trial Court s,
Muni c i pa l Tria l Court s an d Muni c i pa l Ci rc uit Trial
Courts shall exercise:
(1) Exc l usi ve ori gi na l j u ri sd i c t i o n over civil actions
and proba te proceedings, testate and inte state,
including the grant of provisional remedies in p ro pe r
ca se s , wh e r e th e va l u e o f th e pe r s o n a l propert y,
estate, or amount of the demand does not exceed One
hundre d thousa nd pesos (P 100,000.00) or, in Metro
Manila where such personal property, estate or amount
of the demand does not exceed Two hundre d thousa nd
pesos (P200.000.00), exclusive of interest, dama ges of
whate ver kind, attorney' s fees, litigation expenses,
and costs, the amount of which must be specifically
alleged: Provided, That interest, da ma ge s of what e ve r
kind, attorne y' s fees, litigation

R E M E D I A L LA W C O M P E N D I U M

e x p e n s e s , an d cost s sha l l b e i ncl ude d i n th e


de term inat ion of the filing fees: Provided further,
That where the re are se veral claims or causes of
action between the same or different pa rti e s em
bodied in the same complaint, the am ount of the
demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes
of ac ti o n a ros e ou t of th e sam e or di ffe re n t
transactions;
(2) Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, That when, in
such cases, the defendant raises the question
of
ownership in his pleadings and the question of
possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession; and
(3) Exclusive original juri sdicti on in all civil actions
which involve title to or possession of, real property, or
any interest therein where the assessed value of the
propert y or intere st t he re i n does not exceed Twenty
thousand pesos (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
i nte re st , dam a ge s of what e ve r kind, a t t o r n e y ' s fees,
l i t i ga t i o n e x p e n s e s an d c ost s : Provided, Tha t in
cases of land not de clared for taxation purposes the
value of such propert y shall be dete rmi ned by the
assessed value of the adjacent lots." (As amended by
R.A. 7691)
"SEC. 34. Delegated jurisdiction in cadastral and
land registration cases. Met ropolita n Trial Courts,
Munic ipal Trial Court s, and Munici pal Circ uit Trial
Courts may be assigned by the Supreme Court to hear
an d de t e rm i n e c a da s t r a l o r land re gi s t r a t i o n ca se s
covering lots where there is no controversy or opposition,
or contested lots where the value of which does not exceed

50

J U D I C I A R Y R E O R G A N I Z A T I O N AC T O F 198 0

One hundre d t housand pesos (PIOO.OOO.OO), such value


to be ascertained by the affidavit of the claimant or by
agreement of the respective claimants if there are more
than one, or from the corresponding tax declaration of
the real propert y. Their decisions in these cases shall be
appealable in the same ma nne r as decisions of the Re
gional Trial Courts." (As amended by R.A. 7691)
"Sec. 35. Special jurisdiction in certain cases. In
the absence of all the Regional Trial Judges in a province
or city, any Met ropolita n Trial Judge , Municipal Trial
Judge, Municipal Circuit Trial Judge may hear and decide
petitions for a writ of habeas corpus or applications for
bail in criminal cases in the province or city where the
absent Regional Trial Judge s sit."
NO TES
1. The jurisdictional amount within the exclusive ori ginal
j ur i s di c t i o n of th e infe rior court s ha s been increa se d to
PIOO.OOO, or in Met ro Manila, P200.000 exclusive of
inte rests, da ma ge s, attorne y' s fees, litigation expenses and
costs, but with the proviso that the amount thereof must be
specifically alleged.
2. Unlike the jurisdictional test in joinder of claims or cause s
of action in th e same com plai nt unde r the Judic i a r y Act
(Sec. 88), th e total it y of all the claims alle ged in all th e
ca use s of action shal l furnish th e j u ri sd i c t i ona l tes t
w h e t h e r th e sam e pe r t a i n s t o th e same or different
parties and irrespective of whet he r the ca uses of acti on
aros e ou t of th e sam e or di ffe rent tra nsacti ons, but
subject to the rule in Sec. 6, Rule 3 if permissive joinder of
parties is involved.
3. Under the Judiciary Act (Sec. 88), an inferior court could
issue th e writ s of pre l im i na r y a t t a c h m e n t and replevin
where the principal action was within its juris diction, an
d th e wri t of p r e l i m i n a r y pr ohi bi t or y or

R E M E D I A L LA W C O M P E N D I U M

ma ndat or y injunction but only in forcible entr y cases


(cf. Sec. 3, Rule 70; Art. 539, Civil Code). Under B.P. Blg. 129, provided
tha t juri sdi ct i on, in additi on to the foregoing provi si onal
remedies an inferior court can appoint a receiver and it
has jurisdiction to issue a writ of preliminary injunction
in either forcible entry or unlawful detainer cases.
4. The inferior courts now have probate jurisdic tion where
the gross value of the estate, whether test ate or intestate ,
does not exceed P 100,000, or if in Metro Manila, P200.000.
However, it has been held under the former provision where
the juri sdicti onal amount was only up to P20.000, that
where the property was the only one wherein the decedent
had any proprietary rights, is conjugal in nat ure , it is the
total value of such conjugal prope rt y, and not only the
value of the shar e of the decedent therein, which should
furnish the jurisdictional test. This is because the
se t tl e me nt proceedings will necessarily entail the
dissolution and settlement of the conjugal partnership and
the property thereof (Fernandez, etc., et al. vs. Maravilla, L18799,
Mar. 31,
1964).
Thus, under the present
jurisdictional rule, if the only property of the conjugal
pa rt nership located outside Metro Manila has a gross value
of P 150,000, while said decedent's share therein which
constitutes his estate is normally P75.000 in value, the
proceedings will have to be instituted in the Regional Trial
Court since the total value of said propert y exceeds the
probate jurisdiction of the inferior court.
5. . Th e r e g l e m e n t a r y pe r i o d s for a p p e a l s from
jud gm e nt s or final orders of the different trial courts
have been made uniform at 15 days from receipt thereof,
except in special procee dings, cases where in multiple
appeals are permitted, and habeas corpus cases. For a
detailed discussion on the bases, modes and periods for
appeal from and to different court s, see Lacsamana, et
al. vs. The Hon. Second Special Cases Division of the

J U D I C I A R Y R E O R G A N I Z A TI O N AC T O F 198 0

Intermediate Appellate Court, et al. (G.R. Nos. 73146-53,


Aug. 26, 1986), set out after Sec. 8, Rule 40 in this volume.
Note also the changes tha t have supervened since then
by re a so n of th e 1997 re vi si on of th e Rules of Civil
Procedure and relevant decisions of the Supreme Court,
as they are discussed in the corresponding pa rt s of this
work.
An amended outline of the present jurisdiction of our
courts in civil cases is pre se nte d in the succeeding pages.
6.A notable initiative is the supervening adoption by the
Suprem e Court of the "Rule of Procedure for small claims"
on Se ptem ber 9, 2008 to take effect on October 1, 2008 afte
r th e re q u i s i t e p u b l i c a t i o n . Thi s Rule i s reproduced in
full, together with the forms and papers involved in its
operation and processes (see Appendix EE) and are spelled
out in simple details as to abviate the need for clarifying
comment s for now. However, should the application and
future worki ngs of the Rule Produce s i t u a t i o n s w hi c h
woul d r e q u i r e a m e n d m e n t s o r explanation, the matter
will be duly brought to the reader' s attention, with a report
of the court's action thereon.

R E M E D I A L LA W C O M P E N D I U M

JURISDICTION IN CIVIL CASES


I.

SUP RE ME COURT
A. Original

1. Exclusive
a . Pet i ti on s for ce rti ora ri , prohi bi ti on or
mandamus against:
(1)
Court of Appeals;
(2) Court of Tax Appeals;
(3 ) Sa ndi ga n ba ya n ;
(4) Commission on Elections; and
(5) Commission on Audit. 2.
Concurrent
a. With the Court of Appeals
(1) Petitions for certiorari, prohibition or
m a nda m us against:
(a) Regional Trial Courts;
(b) Civil Service Commission;
( c ) C e n t r a l Boa r d of A s s e s s m e n t
Appeals;
(d) Nati onal Labor Relations Com
mission; and
(e) Other quasi-judicial agencies.
b. With the Court of Appeals and Regional
Trial Courts
(1) Petitions for certiorari, prohibition or
m a nda m us against courts of the first
level and other bodies; and
(2) Petitions for habeas corpus and quo
wa rra nt o.
c. With Regional Trial Courts
(1) Actions agai nst am ba ssa dors, other
public ministers and consuls.

J U R I S D I C T I O N I N CIVI L C A S E S

B. Appellate
1. Petitions for review on certiorari against:
a. Court of Appeals;
b. Court of Tax Appeals;
c. Sa ndi ga n ba ya n ; and
d. Regional Trial Courts in cases involving
(1) C o n s t i t u t i o n a l i t y or va l i di t y of a
t r e a t y , i n t e r n a t i o n a l o r exe c ut i ve
agreement, law, presidenti al decree,
p r o c l a m a t i o n , orde r , i n s t r u c t i o n ,
ordinance, or re gulation;
(2) Legality of a tax, impost, assessment,
toll or a penalt y in relation thereto;
(3) Jurisdic tion of a lower court; and
(4) Only errors or questions of law.
II.

COUR T OF APPE A L S
A. Original

1.

Exclusive
a.
2.

Actions for a nnulm e nt of judgm ent s of


Regional Trial Courts.

. Concurrent
a. With the Supreme Court (see Par. 2, subpar, a. on the original jurisdiction of the
Suprem e Court); and
b. With the Supreme Court and the Regional
Trial Courts (see Par. 2, sub-par, b., loc.
cit.).

B. Appellate
1.

Ordinary appeals from:


a. Re gional Tria l Courts , except in cases
exclusi vel y appe al a ble to the Supre m e
Court, supra; and
55

R E M E D I A L LAW C O M P E N D I U M

b. Family Courts.
2. Appeal by petition for review from:
a.
Civil Service Commission;
b. Central Board of Assessment Appeals; c.
Securities and Exchange Commission; d.
Land Registration Authority;
e. Social Security Commission;
f. Office of the President;
g. Civil Aeronautics Board;
h. Bureaus under the Intellectual Property
Office;
i. National Electrification Administration; j .
Energy Regulatory Board;
k. National Telecommunications Commission;
1. D e pa r t m e n t of Agra ri a n Reform unde r
R.A. 6657;
m. Government Service Insurance System;
n. Employees Compensation Commission;
o. Agricultural Inventions Board;
p. Insurance Commission;
q. Philippine Atomic Energy Commission;
r. Board of Inve st ment s;
s. Construction Industry Arbitration Commis
sion;
t. Office of the Ombudsman, in administra
tive disciplinary cases; and
u. Any other quasi-judicial agency, instru
m e nt a li t y, board or commission in th e
exercise of its qua si -j udic ial functions,
such as voluntary arbit rat ors.
3. Petitions for review from the Regional Trial
Courts in cases appeal ed the ret o from the
lower courts.

J U R I S D I C T I O N I N CIVI L C A S E S

III.

RE GIO NAL TRIAL COURTS

A. Original
1. Exclusive
a. Actions the subject matters whereof are not
capable of pecuniary estimation;
b. Actions involving title to or possession of
real propert y or an interest therein, where
the assessed value of such property exceeds
P20.000 or, in Metr o Ma ni la , P50.000 ,
exc e p t forc ible e n t r y an d u n l a w f u l
detainer;
c. Actions in admiralt y and maritime juris
diction where the demand or claim exceeds
PIOO.OOO or, in Metro Manila, P200.000;
d. Mat t e rs of probate, te stat e or intestate,
where the gross value of the estate exceeds
P100,000 or, in Metro Manila, P200.000;
e. Cases not within the exclusive jurisdiction
of any court, tribunal, person or body exer
cising judicial or quasi-judicial functions;
f. Actions and special proceedings within the
exclusive original jurisdiction of the Court
of Agra ri an Relations as now provided by
law; and
g. Other cases where the demand, exclusive
of i n t e r e s t , da m a ge s , a t t o r n e y ' s fees,
litigation expenses and costs, or the value
of the propert y exceeds P 100,000 or, in
Metro Manila, P200,000.
2. Concurrent
a. With the Supreme Court:
(1) Actions affecting amba ssadors, other
public ministers and consuls.
b. With the Supreme Court and the Court of
Appeals:

R E M E D I A L LA W C O M P E N D I U M

(1) Petitions for certiorari, prohibition and


mandamus as stated in par. 2, sub-par.
b on the original jurisdiction of the
Supreme Court.
(2) Petitions for habeas corpus and quo
warranto.
B. Appellate
All cases decided by lower court s in thei r
respective territorial jurisdictions.
IV. FAMILY COURTS
A. Original
1. Exclusive
a . P e t i t i on s for gu a r d i a n s h i p , custody of
children, habeas corpus in relation to the
latter;
b. Petitions for adoption of children and the
revocation thereof;
c. Complaints for a n n u l m e n t of ma rria ge ,
declaration of nullity of marria ge and those
re la t i ng to m a ri t a l st a t u s and prope rt y
re la t i ons of husba n d and wife or those
living together under different stat us and
agreements, and petitions for dissolution
of conjugal pa rt nership of gains;
d . P e t i t i o n s for s up po r t and /o r ac knowl
edgment;
e. .
Summar y
judicial proc e e di n gs
brough t under
the
provisions
of
Executive Order No. 209 (Family Code of
the Philippines);
f . P e t i t i o n s for d e c l a r a t i o n of s t a t u s of
c h i l d re n a s a b a n d o n e d , d e p e n d e n t o r
neglected children, for the volunta ry or
involuntary commitment of children, and
for th e s u s p e n s i o n , t e r m i n a t i o n , o r

J U R I S D I C T I O N I N CI VI L C A S E S

re st orat i on of pa r e nt a l aut horit y unde r


P.D. 603 , Executive Order No. 56, s. 1986,
and other related laws;
g. Petitions for the constitution of the family
home; and
h. Cases of domestic violence against women
and children, as defined therein, but which
do not constitute criminal offenses subject
to criminal prosecution and penalties.
V . M E T R O P O L I T AN , M U N I C I PAL , AN D MU N I
C IPA L C IR C U I T TRIA L CO U RT S
A. Original
1. Exclusive
a. Actions involving personal property valued
at not more tha n P 100,000 or, in Metro
Manila, =P200,000;
b. Actions d e m a n d i n g sum s of mone y not
exceeding P 100,000 or, in Metro Manila,
P200.000, exclusive of interest, damages,
at t orne y' s fees, litigation expenses, and
costs;
c. Actions in admiralt y and maritime juris
diction where the demand or claim does not
exceed P100.000 or, in Met r o Ma ni l a ,
P200,000, exclusive of interest, dama ges,
attorne y' s fees, litigation expenses, and
costs;
d. Probate proceedings, te stat e or intestate,
where the gross value of the estate does
not exceed P 100,000 or, in Metro Manila,
P200.000 ;
e. .
Forc i bl e ent r y an d
unl a wful
d e t a i n e r cases;

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SE C . 1

f.

Actions involving title to or possession of


real prope rt y, or any i nte re s t the rei n ,
where the assessed value does not exceed
P20.000 or, in Metro Manila, P50.000, ex
clusive of intere st , da m a ge s, attorne y' s
fees, litigation expenses, and costs; and
g. Provisional remedies where the principal
action is within their jurisdiction.
2.

Delegated
a. .
C a d a s t r a l or lan d r e g i s t r a t i o n
c a se s covering lots where there is no
controversy or opposition, or contested
lots the value of which does not exceed P
100,000, as may be assigned by the
Supreme Court.

3.

Special
a. Petitions for habeas corpus in the absence of
all the Re gional Trial Jud ge s in the
province or city.

4. Summa ry Procedure
a. Forcible entry and unlawful detainer cases
irrespective of the amount of da ma ge s or
unpaid rentals sought to be recovered; and
b. All other court cases, except probate pro
ceedings, where the total claim does not
exceed P 10,000, exclusive of intere st and
costs.

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D. THE REVISED RULES OF COURT*


P u r s u a n t to th e p r o v i s i o n s of s e c t i o n 5(5 ) of
Article VIII of th e Consti t uti on, the Su pr e m e Court
hereby adopt s an d p r o m u l ga t e s th e following rule s
c o n c e r n i n g th e p r o t e c t i o n an d e n f o r c e m e n t o f
constitutional ri ghts, pleading, practice and procedure in
all court s , th e a dmi ssi on to th e pra c ti c e of law, th e
I n t e g r a t e d Bar , an d le gal a s s i s t a n c e t o th e unde r
privileged:
RULE 1
GENERAL P ROVISIO NS
S e c t i o n 1. Title of the Rules. The s e Rule s shall
be kn ow n an d cite d as th e Rule s of Court. (1)
NO TES
1. The Rules of Court have the force and effect of law (Shioji
vs. Harvey, etc., et al., 43 Phil. 333; Alvero vs. De la
Rosa, etc., et al., 76 Phil. 428; Conlu vs. CA, et al., 106
Phil. 940). They are not penal sta t ute s and cannot be
given retroacti ve effect (Rilloraza vs. Arciaga, L 23848,
Oct. 31, 1967; Bermejo vs. Barrios, L-23614, Feb. 27, 1970).
However, sta tute s regulating the proce dure of courts
may be made applicable to cases pending at the time of
their passage and are retroactive in that sense (see Alday
vs. Camilon, G.R. No. 60316, Jan. 31, 1983).
2. "When by law j u ri sd i c t i o n is confe rre d on a court or
judicial officer, all auxiliary writs, processes and
*T he a e r e v i s e d R ul e s o f C ivi l P r oc e d ur e w e r e a p p r ov e d b y th e
S up r e m e C our t i n it s R e s ol ut i o n i n Ba r M atte r No . 803 , date d April 8 ,
1997 , to tak e effec t on Jul y 1 , 1997 .

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other means necessary to carry it into effect may be


employed by such court or officer; and if the procedure to
be followed in the exercise of such jurisdict ion is not
specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted
which appears conformable to the spirit of said law or
rules" (Sec. 6, Rule 135).
It will be observed tha t this rele vant provision of
Rule 135 refers only to auxiliary writs, processes and
ot he r ne ce ssa r y m ea n s to ca rr y out th e juri sdi ct i on
specifically conferred by law on the court over the main
suit or proceeding. See the related discussion over this
ancillary jurisdiction of courts under Sec. 1, Rule 57.
3. The Code of Civil Procedure (Act No. 190) is one of the
majn sources of the old Rules of Court which took effect
or/Jul y 1, 1940 and, in turn, of the present revised Rules.
However, certain provisions of the Code of Civil Procedure
which were not incorporated in or repealed by the Rules
are still considered in force. These provisions are:
"7^ "Sec. 42 . Exceptions in Favor of Persons under
Disability. If a person entitled to bring the action
mentioned in the preceding sections of this chapter
(Sec. 40. Action for recovery of title to or possession
of real property or an interest therein) is, at the time
the cause of action accrues, within the age of minor
ity, of unsound mind or in prison, such person may,
after the expiration of ten years from the time the
cause of action accrues, bring such action within
three years after such disability is removed."
"Sec. 45 . Rights Saved to Certain Persons. If a
person entitle d to bring any action menti oned in
either of the two last preceding sections (Sec. 43.
Actions other than for recovery of real property;
Sec. 44. Any other action for relief) is, at the time the
cause of action accrues, within the age of minority,

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of unsound mind, or in prison, such person may bring


such action within two years after the disability is
removed unless the ri ght of action is one of those
named in subdivision four of section fort y-three, in
which case it may be brought within one year after
such disability is removed."
: "Sec. 47 . As to Absent Persons. If, whe n a
cause of action accrues against a person, he is out
of th e P h i l i p pi n e Is l a n d s , or ha s a bs c o nd e d or
conceale d himself, an d ha s no know n or visible
prope rt y within the Islands the period limited for
the commencement of the action shall not begin to
run until he comes into the Islands or while he is so
absconded or concealed, or until he has known or
visible propert y within the Islands; and if, after the
cause of action accrues, he de pa rts from the Philip
pine Isla nds, or absconds or conceals himself, the
time of his abse nce or c once a lm e nt shall not be
computed as any par t of the period within which
time the cause of action should be brought."
It should be noted tha t Art. 2270(3) of the Civil Code
repeals only the provisions of the Code of Civil Procedure
on prescription as far as the latter may be inconsistent
with the former, and Arts. 1106 to 1155 of the Civil Code
do not provide for the above situations. Art. 1108 of said
Code provides tha t extinctive prescription runs against
minors or incapacitated persons only if they have pa re nts,
guardians or legal repre se ntati ves.
4* Furt he rm ore , it has been held that not all the pro
visions in th e Code of Civil Procedure are remedial in
nat ure , such as those pertaining to prescription, the re
quisites for making a will, and the succession to the estate
of the adopted child (Primicias vs. Ocampo, etc., et al., 93
Phil. 446). Specifically with respect to the above-quoted
provisions on prescription, not being procedural in nature,
they cannot be deemed to have been impliedly repealed

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SE C . 4

just because they were not incorporated in the Rules of


Court. Being subst a nt i ve in na t ure , and not having
been eliminated by substantive law as above explained,
these provisions are consequently still in force.
4. In the interest of just and expeditious proceed ings, the
Supreme Court may suspend the application of the Rules of
Court and except a case from their operation because the
Rules were precisely adopted with the pri mary objective
of enhanci ng fair trial and expeditious justice (Republic
vs. CA, et al, L-3130304, May 31, 1978).
Sec. 2. In what courts applicable. Thes e Rul es
shall apply in all th e c our ts, e xce p t as o t h e r w i s e
pr ovi de d by the S u pr e m e Court, (n)
NOTES
1. The 1987 Constitution provides in Art. VIII thereof
that:

"Sec. 5 . The S u p r e m e Cour t shal l ha v e th e


following powers:
(5) Promul gate rules concerning the protection
and enforcement of constitutional ri ghts, pleading,
practice, and procedure in all courts, the admission
to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish,
i nc re a se , or modify s u b s t a nt i v e ri ght s . Rules of
procedure of special courts and quasi-judicial bodies
shall re m ai n effective unless disapprove d by the
Supreme Court."

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SE C . 6

2. P.D. 946 provided that the "Rules of Court shall not be


applicable to a grarian cases, even in a suppletory
character" and each Court of Agraria n Relations the n
had the aut horit y to adopt any appropriate procedure,
except tha t in cri mi na l and e xpropria t i on cases, the
Rules of Court shall apply (Sec. 16). Under B.P. Blg. 129,
said a gra ri a n courts were integrated into the Regional
Trial Courts as branche s thereof, and "the latter shall
have exclusive original jurisdiction over said cases and
proceedings but they shall continue to apply the special
rules of procedures under the pre se nt laws" (Sec. 24).
R.A. 6657 subsequentl y provided for the designation
of at least one branch of the Regional Trial Court within
each province to act as a Special Agrarian Court. The
Special Agrarian Courts shall have original and exclusive
jurisdiction over all petitions for the de t e rm i nat i on of
just compensation to landowners and the prosecution of
all criminal offenses unde r said Act (Secs. 56 and 57).
On the other hand, the Depa rtme nt of Agrarian Reform
is ve sted with pri m a r y juri sdicti on and quasi -judicial
powers to dete rmi ne and adjudicate all other a gra ri a n
reform m at t e rs. It shall not be bound by the technical
rules of proc e dure and e vi de nce bu t may employ all
reasonable mea ns to asc erta in the facts in accordance
with justice, equity and the merits of the case (Sec. 50).
Sec. 3 . Cases governed. T h e s e R u l e s s h a l l
g ove r n th e pr oc e d u r e t o b e obs e r ve d i n ac t i on s ,
civil or c ri mi nal , and spe ci al pr oc e e di ng s .
(a)A ci vil ac ti o n is on e by w hi c h a party sue s a n o t h e r for
th e e n f o r c e m e n t or p r o t e c t i o n of a right, or th e
p r e v e n t i o n or r e d r e s s of a w r on g , (la, R2)
A civil ac ti o n ma y ei the r be or di nar y or speci al .
Both are g ove r n e d by the rul es for or di nar y civil
ac ti on s, su bje c t to th e spe cific rul es pr esc r i be d for
a spe cial civil ac ti on, (n)

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(b)

A cri mi nal acti on is on e by w hi c h th e State


p r o s e c u t e s a p e r s o n for a n ac t o r o m i s s i o n
pu n i s ha bl e by law. (n)
(c)A spe cial pr oc e e di n g is a re me d y by w hic h a par t y s e e k
s to e s t a b l i s h a s t a t u s , a r i gh t , or a partic ul ar fact.
(2a, R2)
NOTES
1. In the Philippines, there is no difference between
a "suit" and an "action" as our courts are courts of law and
equity (see Lopez vs. Filipinos Cia. de Seguros, L-19613,
April 30, 1966). Likewise, in American law, the te rms
"action" an d "suit" ar e now ne a rl y , i f not e nt i re l y ,
synonymous (Elmos vs. James, Tex. Civ. App., 282 S.W.
835; Coleman vs. Los Angeles County, 180 Cal. 714, 182
P. 440), or if there be a distinction, it is tha t the term
"action" is generally confined to proceedings in a court
of law, while "suit" is equally applied to prosecutions at law
or in equity (Black's Law Dictionary, 6th Ed., p. 1434).
2 . The Supreme Court has inherent jurisdiction that
it can always exercise in settings atte nded by unusual
ci rcum st ance s to pre ve nt manifest injustice tha t could
result to bare technical adherence to the law and impre
cise juri sprude nce (Co vs. PNB, G.R. No. 51767, June 29,
1982).
3 . In an ordinary action, there must be real parties
in interest asserting adverse claims and presenting a ripe
issue (Tolentino vs. Board of Accountancy, 90 Phil. 88).
Sec . 4. In what cases not applicable. The s e Rule s
shall not apply to el ec ti o n case s , land re gi st r a ti on ,
c a d a s t r a l , n a t u r a l i z a t i o n an d i n s o l v e n c y pr o
c e e di n g s , and other case s not he rei n pr ovi de d for,
e xce p t by anal og y or in a su ppl e t or y c h ar a c te r and
w h e n e ve r pr ac ti c abl e and c o n v e n i e n t . (R143a)

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PROVISION S

SE C . 5

NOTE
1.

See Note 3 under Sec. 5, Rule 2.

C'

r'\

Sec . 5. Commencement of action. A civil ac ti o n


i s c o mme n c e d by th e filing of th e or i gi nal c ompl ai n t
in court. I f an a ddi ti on a l de f e n dan t i s i mpl e a de d in
a late r p l e a d i n g , th e ac ti o n i s c o m me n c e d wit h
regar d to hi m on th e dat e of th e filing of suc h later
pl e adi ng, i r r es pe c ti v e of w h e t h e r th e moti o n for its
a dmi ssi on^ i f n e c e ss ar y , i s de nie d by the court. (6a)
NOTES
1. This provision a ssume s significance especially where
prescripti on is raised as a defense a ga i nst the claim of the
plaintiff in the complaint. Thus, as long as the complaint
which commences the action is filed within the prescriptive
period, the claim alleged therein is not barred even if
summons was served on the defendant after the prescripti ve
period (Sotelo vs. Dizon, et al., 57 Phil. 573; Cabrera, et al.
vs. Tiano, L-17299, July 31, 1963).
2.Such action may be commenced by filing th e complaint by
registered mail. Hence, if the complaint was duly sent to
the
proper court by
registered
mail
within the
p re s c r i pt i v e pe ri od an d i n a cc orda nce wit h th e
re quirem ent s of Sec. 3, Rule 13, the fact that said com
plaint, as mailed, was actually received by the clerk of
said court after the lapse of the prescriptive period is
immaterial as the date of mailing is considered the date
of the filing of said complaint. However, if the requisite
docket fee was actually paid, either personall y or also by
mail, subse quent to the mailing of said complaint, the
date of such pay me nt or the mail ing of said am oun t
therefor shall be considered as the date of the filing of
the complaint (Ago Timber Corp. vs. Ruiz, et al., L-23887,
Dec. 26, 1967). Where there was an un de r a s se s sm e n t of

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SEC . 5

the docket fee to be paid due to an initi all y honest


difference of opinion as to the nature of the action, the
plaintiff was permitte d to subseque ntl y complete the
pa yment by paying the difference (Magaspi vs. Ramolete, L34840, July 20, 1982).
3. Ordinaril y, the rule was that a case is deemed filed only
upon the pa yment of the docket fee. The Court acquires
jurisdiction over the case only upon full pa yment of such
prescribed docket fee. All complaints, petitions, answers
and similar pleadings must specify the amount of
da ma ge s being pra yed for both in the body of the pleading
and in the pra yer therein, and said da ma ge s shall be
considered in the assessment of the filing fees; otherwise,
such pleading shall not be accepted for filing or shall be
expunged from the record. Any defect in the original
pleading resulting in unde rpa yme nt of the docket fee cannot
be cured by amendment, such as by the reduc tion of the
claim as, for all legal purposes, the re is no original
complaint over which the court has acquired jurisdiction
(Manchester Development Corporation, et al. vs. CA, et al.,
G.R. No. 75919, May 1, 1987).
Howe ve r, th e a f o r e s t a t e d rul i n g in Manchester
Development Corporation, et al. vs. CA, et al. has been
modified as follows: (1) when the filing of the initiatory
pleading is not accompanied by pa ym e nt of the docket
fee, the court may allow pa ym e n t of the fee within a
reasonable time but not beyond the applicable prescriptive
or re gl e m e nt a r y period; (2) the same rule applies to
permissive counterclaims, third-part y claims and similar
pleadings; and (3) when the trial court acquires jurisdic
tion over a clai m by th e filing of th e a p p r o p r i a t e
pleading and pa yme nt of the prescribed filing fee but,
subsequentl y, the judgme nt awards a claim not specified
in the pleadings, or if specified the same has been left
for dete rmi nati on by the court, the additional filing fee
therefor shall constitute a lien on the judgment which shall
be enforced and the additional fee assessed and collected
68

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PROVISION S

SE C . 5

by the clerk of court (Sun Insurance Office, Ltd., et al.


vs. Asuncion, et al., G.R. Nos. 79937-38, Feb. 13, 1989).
4. It is true tha t Manchester laid down the rule that all
complaints should specify the amount of the damages
prayed for not only in the body of the complaint but also
in the pra ye r. Tha t rule, however, has been relaxed.
Thus, while the body of the complaint in this case is silent
as to the exact amount of dama ges, the pra yer did specify
the amount . These a m ount s were definite enough and
enabled the clerk of court to compute the docket fees
payable. Fu rt he rm ore , the amount s claimed need not be
initially stated with mathem atical precision. Section 5(a),
Rule 141 allows an appraisal "more or less," that is, a final
dete rmi nati on is still to be made and the fees ultimatel y
found to be pa yable will either be additionally paid by or
refunded to the part y concerned, as the case may be. The
party is, therefore, allowed to make an initial pa ym ent of
the filing fees corresponding to the est imate d amount
of the claim subject to adjustment as to what may later
be proved (Ng Soon vs. Alday, et al., G.R. No. 85879,
Sept. 29, 1989).
5.. Where the action involves real propert y (such as an
accion publiciana) and related claims for dama ges, the
legal fees shal l be a sse sse d on both the value of th e
property and the total a m oun t of the da ma ge s sought.
Where the fees prescribed for an action involving real
property have been paid but the am ounts for the related
da ma ge s being dema nde d t he re i n are unspecified, the
acti on ma y not b e di s m i s s e d . The cour t a c q ui re d
jurisdiction over the action involving real propert y upon
the filing of th e c o m pl a i n t and th e pa ym e n t of th e
prescribed fee therefor. It is not divested of that authority
by the fact tha t it may not have acquired jurisdiction over
the accompanying claims for dama ges because of lack of
specification thereof. Said claims for damages as to which
no am ounts are stated may simply be expunged or the

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SE C . 6

court, on motion, may allow a reasonable time for the


ame ndme nt of the complaint so as to allege the precise
amount of the damages and accept pa yment of the fees
therefor, provided said claims for da ma ge s have not
become time-barred (Tacay, et al. vs. Regional Trial Court
ofTagum, etc., et al, G.R. Nos. 88075-77, Dec. 20, 1989).
6. The amount of docket fees to be paid should be computed on
the basis of the am ount of the da ma ge s stated in the
complaint. Where, subsequentl y, the judg ment awa rds a
claim not specified in the pleading or, if specified, the
same has been left for the de term inat ion of th e court, th e
a dd i t i o na l filing fee the re for shal l c o ns t i t ut e a lien on th
e j u d gm e nt . Such "a wa rd s of c la i m s not specified in th
e pl e a di n g " refer onl y to damages arising after the filing of
the complaint or similar pl e a di n g . Acc ordi ngl y, th e
a m o un t of any claim for dama ges arising on or before
the filing of the complaint or an y pl ea di n g should be
specified. Th e exc e pt i on contemplated as to claims not
specified or to claims which although specified are left to the
de t e rm i nat i on of the court is limited only to dama ges
tha t may arise after the filing of the complaint or similar
pleading since it will not be possible for the claimant to
specify or speculate on the a m oun t t he re of (Ayala
Corporation, et al vs. Madayag, et al, G.R. No. 88421,
Jan. 30, 1990).
7. It is well settled in our jurisdiction that, unless o t h e r w i s e
p ro vi d e d by law or r e q u i r e d by publ i c interest, as in quo
wa rra nt o actions (see Note 3 unde r Sec. 11, Rule 66),
before bringing an action in or resorting to the courts of
justice, all remedies of adm i ni st ra ti ve cha racte r affecting
or dete rmi nati ve of the controversy at that level should
first be exhausted by the aggrieved part y (Pestanas vs.
Dyogi, L-25786, Feb. 27, 1978; Miguel vs. Vda. de Reyes, 93
Phil. 542; Coloso vs. Board, L-5750, April 30, 1950). It is
likewise true, however, tha t the doctrine of exhaustion of
admini st rati ve remedies is not a hard and fast rule.

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SE C . 6

This Title does not apply and has been disregarded


when: (1) the issue is purel y a legal one, and nothing of
an admi nistrati ve nature is to be and can be done (Dauan
vs. Secretary of Agriculture and Natural Resources, et al., L19547, Jan. 31, 1967; Aguilar vs. Valencia, L-30396, July
30, 1971; Commissioner of Immigration vs. Vamenta, L-34030,
May 31, 1972; Del Mar vs. Phil. Veterans Adm., L-27299, June
27, 1973; Bagatsing vs. Ramirez, L-41631, Dec. 17, 1976); (2)
insistence on its observance would re s ul t i n n ul l i fi c a t i o
n of th e clai m be in g a s s e r t e d (Gravador vs. Mamigo, L24989, July 21, 1967); (3) the controve rte d act is pa te nt l y
illegal or was performed without jurisdiction or in excess of
jurisdiction (Industrial Power Sales, Inc. vs. Sinsuat, L29171, April 15, 1988);
(4) the respondent is a de pa rtm e nt secretary, whose acts
as an alte r ego of th e P r e s i de n t bea r the implied or
assumed approval of the latter, unless actually disapproved
by him (Demaisip vs. CA, et al, 106 Phil. 237); (5) there
are c i rc um st a nc e s indi ca t i ng th e urge nc y of judici al
intervention (Gonzales vs. Hechanova, L-21897, Oct. 22,
1963; Abaya vs. Villegas, L-25641, Dec. 17, 1966; Mitra
vs. Subido, L-21691, Sept. 15, 1967); (6) the rule does not
provide a plain, speedy and ade quat e remedy (Cipriano
vs. Marcelino, L-27793, Feb. 28, 1972); (7) the r e is a
violation of due process (Quisumbing vs. Gumban, G.R.
No. 85156, Feb. 5, 1991; Salinas vs. NLRC, et
al,
G.R. No. 114671, Nov. 24, 1999); (8) there is estoppel on
the part of the admi nistrati ve agency concerned (Vda. de
Tan vs. Veterans Backpay Commission, 105 Phil 377);
(9) there is irreparable injury (De Lara vs. Cloribel, 121 Phil.
1062); (10) to require exhaustion of admini st rati ve remedies
would be unre asonable (Cipriano vs. Marcelino, et al, 150
Phil. 336); (11) the subject matter is a private land in land
case proceedings (Soto vs. Jareno, L-38962, Sept.
15,
1986); an d (12 ) th e i ssu e of e x h a u s t i o n o f
a d m i n i s t r a t i v e p r o c e e d i n g s ha s bee n r e n d e r e d moot
(Carale, etc., et al. vs. Abarintos, etc., et al., G.R. No.
120704, Mar. 3, 1997).

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Sec. 6. Construction. T h e s e R u l e s shal l be


l i b e r a l l y c o n s t r u e d i n or de r t o p r o m o t e t h e i r
obje ctive of se c ur i n g a just, s pe e d y and i ne xpe n si v e
di s posi ti on of every action and pr oc e e di ng. (2a)
NOTES
1. This section is a recognition of the fact tha t the rules of
procedure are mere tools designed to facilitate the
atta inme nt of justice. Thus, the liberal construction of
these Rules has been allowed in the following cases:
(1) where a rigid applicati on will re sult in ma nife st
failure or miscarriage of justice; (2) where the interest of
substantial justice will be served; (3) where the resolution
of the motion is addressed solely to the sound and judicious
discretion of the court; and (4) where the injustice to the
adverse party is not comme nsurate with the degree of his
t hought l e ssne ss in not complying with the prescribed
procedure (Tan us. CA, et al., G.R. No. 130314, Sept. 22,
1998).
2. In fact, in line with the spirit and purpose of this section, even
the suspension of the rules may be justified in the
interest of fair play. As- early as the case of Vda. de
Ordonez us. Raymundo (63 Phil. 275), it was held tha t the
court ha s th e power to suspe n d th e rule s, or to except a
particular case from their operation, whene ver the ends
of justice so require.
Juri sprude nc e has laid down the range of re asons
which may provide justification for a court to restrict
adherence to procedure, enume rati ng grounds for giving
due course to an otherwi se objectionable appeal by a
suspension of the enforcement of procedural rules, viz.:
(1)
in m a t t e r s of life, l i be rt y , hono r or p r o p e r t y ;
(2)c o un se l ' s ne gl i ge n c e w i t h o u t an y p a r t i c i p a t o r y
negligence on the part of the client; (3) the existence of
special or compelling circumstances; (4) the evident merits
of the case; (5) a cause not entirely att ributa ble to the

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fault or negligence of the part y favored by the suspension


of the rules; () the lack of any showing that the review
sought is merely frivolous and di latory; and (7) th e
ot he r pa rt y will not be unj ust l y prej udic ed t he re b y
(Baylon vs. Fact-finding Intelligence Bureau, etc., et al.,
G.R. No. No. 150870, Dec. 11, 2002).
3..

While th e Rule s are li bera ll y c onst rue d, th e


provisions on reglementary periods are strictly applied as
they are "deemed indi spensable to the prevention of
needless delays and necessary to the orderly and speedy
discharge of judicial business" (Alvero vs. De la Rosa, et
al., 76 Phil. 428; Valdez vs. Ocumen, et al, 106 Phil 929;
Mangali, et al. vs. CA, et al, L-47296, Aug. 21, 1980; cf.
Legaspi-Santos vs. CA, et al, G.R. No. 60577, Oct. 11, 1983) and
strict compliance there wit h is mandatory and i m pe ra ti ve
(FJR Garments Industries vs. CA, et al, L-49320, June
29, 1984).
The same is true with respect to the rules
on the ma nne r and periods for perfecting appeals
(Gutierrez vs. CA, et al, L-25972, Nov. 26, 1968), and the
re quirem ent s as to what should appear on the face of
a
record
on appeal (Workmen's Insurance Co., Inc. vs.
Augusto, et al, L-31060, July 29, 1971), although these rules
have sometimes
been
relaxed
on
equitable
considerations (see Pimentel, et al. vs. CA, et al, L-39684, June
27, 1975; Bagalamon, et al. vs. CA, et al, L-43043, Mar.
31, 1977).
All t hi ng s considere d, th e Suprem e Court called
attention to the fact that "(v)ules of procedure exist for a
purpose, and to disregard such rules in the guise of liberal
construction would be to defeat such purpose. Procedural
rules are not to be disclaimed as mere technicalities. They
may not be ignored to suit the convenience of a part y.
Adjective law e n s u r e s th e effective e n fo rc e m e n t of
s u b s t a n t i v e rights t hr ou g h th e orde rl y and spee dy
a dm i ni s t r a t i o n of just ice. Rules are not inte nde d to
hamper litigants or complicate litigation. But they help
provide for a vital system of justice where suitors may be
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heard in the correct form and manner, at the prescribed


time in a peaceful though adversarial confrontation before
a judge whose authority litigants acknowledge. Public
order and our system of justice are well served by a
consc i e nt i ous obse rva nc e of th e rul es of pr oc e du re ,
p a r t i c u l a r l y by go ve r n m e n t officials an d a ge nc i e s "
(Kowloon House/Willy Ng vs. CA, et al., G.R. No. 140024,
June 18, 2003, quoted in United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R.
No. 141117, Mar. 24, 2004).

CIVIL ACTIO N S
ORDINARY CIVIL ACTIONS
RULE 2
CAUSE OF ACTION
S e c t i o n 1. Ordinary civil actions, basis of.
Eve ry o r d i n a r y civi l ac t i o n mus t be ba se d on a
cause of ac ti on, (n)
Sec. 2. Cause of action, defined. A c a u s e of
ac ti o n i s th e ac t o r o m i s s i o n b y w h i c h a par t y
vi ol ate s a righ t of an othe r , (n)
NOTES
1. See Note 2 of the Preliminary Considerations and Notes 2
and 5 under Sec. 47, Rule 39.
2. A cause of action is the delict or wrongful act or omission
committed by the defendant in violation of the primary
right of the plaintiff. A single act or omission can be
violative of various rights at the same time but where
there is only one delict or wrong, there is but a single
cause of action regardless of the number of rights violated
belonging to one person. Nevertheless, if only one injury
resulted from several wrongful acts, only one cause of
action arises. The singleness of a cause of action lies in the
singleness of the delict or wrong violating the rights of one
person (Joseph vs. Bautista, et al., L-41423, Feb. 23, 1989).
Sec. 3. One suit for a single cause of action. A
party ma y not i n st i t ut e more tha n on e suit for a
single c aus e of ac ti on. (3a)
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Sec. 4. Splitting a single cause of action; effect of.


If tw o or more sui ts are i nsti tute d on th e basis of th e
sam e c aus e of ac ti on , th e fi li n g of on e or a ju dg me n
t upo n the merits in any one i s avai lable as a
ground for the di s mi ssal of the ot her s. (4a)
NOTES
1. Splitting a cause of action is the act of dividing a
single cause of action, claim or demand into two or more
pa rt s , and bringing suit for one of such parts only,
intending to reserve the rest for anothe r separate action.
The purposes of the rule are to avoid ha ra ss m e n t and
vexation to the defendant and to obviate multiplicit y of
suits.
'. 2. Where a single cause of action has been split,
the remedy of the defendant is to move to dismiss under
Rule 16 on th e ground tha t the r e i s a n o t he r action
pending between the same pa rtie s for the same cause,
or litis pendentia (Sec. lfej); or, if the first action has
already been finally t e rm i nat e d, on the ground of res
judicata
(Sec. IffJ).
3.Thus, where the first,action was for recovery of land, anot her
action for the value of plaintiff s share in the produce of
said land is barred, as a single cause of action was split into
two suits (Jalandoni, et al. vs. Martir- Guanzon, et al., 102 Phil.
859; cf. Pascua vs. Sideco, 24 Phil. 26). The same doctrine
applies where, in the action to recover the land, the
plaintiff sought to recover the fruits alrea dy appropri at e d
by the de fe nda nt but not the future fruits which may be
realized thereon until the possession of the land, was
restored to him. He could have done so by supple ment al
complaint in said action, failing which he cannot institute
another action for that purpose in violation of the rule of
res judicata (Bayang vs. CA, et al., G.R. No. 53564, Feb.
27, 1987).

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4. Where a contract is to be performed periodically, as by


i nst al l me nt s, each failure to pay an inst allme nt constitutes
a cause of action and can be the subject of a separate suit as
the install ment falls due, or it can be included in the
pending suit by suppleme ntal pleading. However, if at the
time of the bringing of suit, several install ments are
already due, all must be included as integrating a single
cause of action, otherwise those not included will be
barred (Larena vs. Villanueva, 53 Phil. 923).
5. Withal, even if the cont ract is divisible in its performance
and the future periodic deliveries are not yet due, but the
obligor has already manifested his refusal to comply with
his future periodic obligations, "the con tract is entire and
the breach total," hence there can only be one action for
damages (Blossom & Co. vs. Manila Gas Corporation, 55 Phil.
226).
6. Non-pa yment of a mortgage loan cannot be split into two
actions, one for pa ym e nt of the debt and the other for
foreclosure of the mort gage, as there is only one cause
of action (Quiogue, et al. vs. Bautista, et al., L-13159, Feb. 28,
1962); but an action for collection of a mortgage loan does not
bar anothe r for rescission of the mortgage if such rescission
is based on the non-compliance by the mort ga gor with
ce rtai n other conditions of the mortga ge cont ract
(Enriquez, et al. vs. Ramos, et al., L-16797, Feb. 27, 1963).
7. Where the plaintiff filed the first action for forcible entry in the
belief and on the allegation that the fence constructed by
the de fe nda nt i ntrude d upon only one lot, but, after the
relocation survey, he discovered that the other portion of
the same
fence extended
to another lot and as a
consequence of which he filed another action for forcible
entry upon that latter lot, the Supreme Court, while
holding that technically there was a splitting of a

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single cause of action since the alleged forcible entry


constituted only one act, nevertheless sustaine d the
order of the lower court denying defendant's motion to
dismiss the complaint on the ground of litis pendentia, it
appearing that the first action had not yet been tried at
the time the second action was filed in the same court,
hence the two cases could be tried together as one, or the
second complaint could be treated as an amendment of
the first (Tarnate us. Garcia, et al., L-26266, Dec. 29,
1972).
Sec. 5. Joinder of causes of action.
i n on e p l e a d i n g a s s e r t , i n th e
ot he r w i se , a s man y cau se s o f ac ti o
e agai ns t an op po si n g party, subjec t
c on di ti on s :

A party ma y
alternativ e o r
n a s h e ma y hav
to th e f ol l ow i n g

(a) The party j oi ni n g the cau se s of ac ti o n shall c omply


wit h the rul es on j oi n de r of par ti e s;
(b) The joi n de r shall not i nc l u d e s pe c i al ci vil ac ti on s
g ove r n e d b y spe ci a l r ule s;
(c) Whe re the c ause s of ac ti o n are b e tw e e n the sam e
p a r t i e s but pe r t a i n t o d i f f e r e n t v e n u e s o r
j u r i s d i c t i o n s , th e j oi n de r ma y b e a l l ow e d i n th e
Re gi ona l Trial Court pr ovi de d on e of th e c a u se s of
ac ti o n falls w i thi n th e j u r i s di c t i o n o f sai d c our t
and th e ve n u e lies the rei n ; and - 1
( d ) W h e r e th e c l a i m s i n al l th e c a u s e s o f ac ti o n are
pr i n c i pal l y for re c ov e r y o f mo ne y th e
a g g r e g a t e ^ a m o u n t c l a i me d sh al l b e th e te s t o f
j ur i s di c ti on . (5a)
NOTES
1. The joinder of causes of action in one complaint promotes the
policy on avoiding multiplicity of suits. The rule in Sec.
5, however, is purely permissive and the

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plaintiff can alwa ys file se parate actions for each cause


of action (Baldovir vs. Sarte, 36 Phil. 550).
2.

Par. (a) of this section requires that the joinder of causes


of action shall comply with the rule on joinder of pa rt ie s.
Thus, in relation to Sec. 6 of Rule 3, it is necessary tha t the
ri ght of relief from said causes of action should arise out
of the same transaction or series of transact ions, and a
question of law and fact common to all the plaintiffs or
defendants may arise in the action.
3. Under Par. (b), only causes of action in ordinary civil
actions may be joined, obviously because they are subject
to the same rules. Necessarily, therefore, special civil
actions or actions governed by special rules should not be
joined with ordi na ry civil actions to avoid con fusion in
the conduct of the proceedings as well as in the
de term inat ion of the presence of the requisite elements
of each particular cause of action. In fact, in the special civil
action of declaratory relief (Rule 63), the concept of a
cause of action in ordinary civil actions does not apply.
Note should be taken, however, of Sec. 4 of Rule 1
which provides tha t these Rules shall not apply, inter
alia, to election cases in the regular courts (see Sec. 2[2],
Art. IXC, 1987 Constitution). Thus, unless the rules of
the electoral t ri buna l or body provide otherwi se , the
prohibition against joining in one action therein a cause
of action for quo wa rra nt o by reason of the ineligibility
of the de fe nda n t c a n di d a t e (which is a special civil
action) and one for an election protest due to electoral
irregularities, should not apply and both causes of action
may be adjudicated in a single case, especially in view of
the need for speedy de term inat ion of the title to a public
office.

4.

Pars, (c) and (d) determine which court will have


jurisdiction over the action wherein several causes of
action have been joined. Unlike the former Rule, the

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aggregate or totality rule applies only where the claims


are principally for sums of money, and not where they
are also of the same nature and character; and said claims
for money must arise out of the same t r a n sa c t i o n or
series of tra nsacti ons wherein a question of law or fact
common to the parties may arise in the action. Also, the
condition in the former Rule that permissive joinder of
causes of action shall be "(s)ubject to the rules regarding
jurisdiction (and) venue" has been modified and clarified
in the present formulation of par. (c).
5. .

In a c o m pl a i n t filed in th e S e c u r i t i e s an d
Exchange Commission by a stockholder of a corporation,
one of the causes of action therein sought the a nnulm e nt of
a dacion en pago agreement, whereby said corporation ceded
all its assets to the mortgagee bank in settlement of its
account, and to recover said propert y from the third- pa rt y
p u r c h a s e r t o whom th e m o r t ga ge e ba n k ha d
subsequentl y sold the property and who was impleaded as a
co-defendant. It was held that such cause of action could
not be joined in said complaint since jurisdiction
thereover lies in the re gular courts. While, ordinaril y, the
purc ha se r corporation should be included as a party
defendant since it has an interest in the subject matter,
i n thi s case said p u r c h a s e r ha s no i n t r a - c o r p o r a t e
relationship with the complainant, hence, the Commission
has no jurisdiction over it under P.D. 902-A. The rule on
permissive joinder of causes of action is subject to the
rules regarding jurisdiction, venue and joinder of parties
(Union Glass & Container Corp., et al. vs. SEC, et al.,
G.R. No. 64013, Nov. 28, 1983), as clarified in this revised
Rule.

6. This section presupposes that the different causes of action


which are joined accrue in favor of the same plaintiff/s and
against the same defendant/ s and that no misjoinder of
parties is involved. The jurisdictional issue, i.e., whether
the action shall be filed in the inferior court

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or in the Regional Trial Court, is determined by paragraphs


(c) and (d).
7. .

Formerly, the rule was that although the causes of


acti on ar e for sum s of mone y owing to differe nt
persons who are members of a labor union, but the same
are joined in a single complaint filed by said union as a
re pr e s e nt a t i v e pa rt y p u r s u a n t to Sec. 3 of Rule 3,
jurisdiction shall be determined by the aggregate amount of
the de mands (Liberty Mfg. Workers Union vs. CFI of
Bulacan, et al., L-35252, Nov. 29, 1972).
Cases of this
nature are now governed by the Labor Code.

8. Before the i m pl em e nta t i on of B.P. Blg. 129, it was held tha


t where the plaintiff is uncertain as against whom to proceed
for recovery on the loss of goods shipped to him and sues
on a joinder of causes of action against the shipper or
a rra st re operator as alternative defendants, the former on
an admiralt y action and the latter on an ordinary claim for a
sum of money, the joinder of causes of acti on i s prope r
since the y arose from th e sam e t r a n s a c t i o n . Ho w e ve r ,
sinc e one c a us e o f a ct i o n (admiralty) was within the
jurisdiction of the Court of First Instance, even if the
amount involved in the claim for a sum of money was
within the jurisdiction of the inferior court, the action must
be filed and tried in the Court of Fi r s t I n s t a n c e ,
p u r s u a n t to Rule 2 , Sec. 5 , second pa ra gra p h (Insurance
Company of North America vs. Warner, Barnes & Co., Ltd., et
al., L-24108, Oct. 31, 1967; Insurance Company of North America
vs. U.S. Lines Co., L-21839, April 30,
1968).
The
subsequent dismissal of th e a d m i r a l t y cas e a g a i n s t one
o f th e a l t e r n a t i v e defendants did not oust said court of
jurisdiction over the damage suit even i f the claim was less
tha n the the n juri sdi ct i onal a m oun t (Insurance Company
of North America vs. U.S. Lines Co., supra).
However, since under Sec. 19 of B.P. Blg. 129 the
inferior courts were granted jurisdiction over admiralty

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actions, as well as ordinary civil actions, where the claim


does not exceed P20,000, the situations in the foregoing
ca se s wer e e l i m i n a t e d be c a us e th e j u r i s d i c t i o n a l
am ount in both causes of action being the same, said
amount is determinative of whether that action should be
filed in the inferior courts or in the Regional Trial Court.
The ame ndme nt of Sec. 19, B.P. Blg. 129 by Sec. 1
of R.A. 7691 , as earlier indicated, does not affect this
rul e o n a d m i r a l t y an d m a r i t i m e c a se s sinc e t h a t
a m e n d m e n t m e re l y c o n s i s t e d o f i n c r e a s i n g th e
jurisdictional amount for said cases, and also for ordinary
civil actions for a su m of money, to claims exceeding
PIOO.OOO, or in Metr o Ma ni la , e xce e di ng P200.000 ,
exclusive of interest, damages of whatever kind, attorne y' s
fees, litigation expenses, and costs.
Sec. 6. Misjoinder of causes of action. Mi sjoin de r
of c a u se s of ac ti o n i s no t a gr ou n d for d i s mi s s a l of
a n ac t i on . A mi s j o i n e d c a u s e o f a c t i o n may , o n
moti o n of a party or on th e i ni ti ati ve of th e court,
be se ve re d and pr oc e e de d wit h se par ate l y, (n)
NOTES
1. In case of misjoinder of causes of action, the cause of action
erroneousl y joined need only be sepa rate d and dismissed,
without affecting the action with regard to the other cause
or causes o action. Misjoinder of causes of action, like
misjoinder of pa rt ie s, is not a ground for dismissal of an
action. The party misjoined shall only be dropped by order
of the court sua sponte or on motion, an d any claim
a ga i ns t a pa rt y may be se ve re d an d proceeded with
separatel y (Sec. 11, Rule 3).
2. Unlike the case of non-joinder of pa rtie s which is
specifically provided for and regulated by the Rules (Secs.
9 to 11, Rule 3), there is no provision on or sanction against
non-joinder of separate causes of action since a

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plaintiff needs only a single cause of action to maintain


an action (Sec. 1, Rule 2). Joinder of causes of action
which accrued in favor of a party is only a permissive
procedure, hence the party may i nsti tute as many
actions as he has causes of action, without prejudice to
the provisi ons of Sec. 1 of Rule 31 on joint trial or
consolidation of actions.

83

RULE 3
PARTIES TO CIVIL ACTIONS
Se c ti o n 1. Who may be parties; plaintiff and defen
dant. O nl y n a t u r a l or j u r i d i c a l p e r s o n s , or
e nti tie s author iz e d by law ma y be par ti e s in a civil
a c t i o n . Th e t e r m " p l a i n t i f f ma y re fe r t o th e
c l ai mi n g party, th e c o u n t e r - c l a i ma n t , th e c r os s c l ai mant, or the thir d (fourth, etc.)-party plaintiff.
Th e te r m " de f e n da n t " ma y refer t o th e or i gi na l
d e f e n di n g party, th e de fe n da n t in a c ou nt e r cl ai m ,
th e c r os s - d e f e n d a n t , o r th e thi r d (f ou r t h , e tc .) party de fe n dant, (a)
NOTES
1. As to who are juridical persons with capacity to sue, see
Art. 44, Civil Code. The entities authorized by law to be
parties to a suit include the estate of a deceased person
(Limjoco vs. Intestate Estate of Fragante, 8 Phil. 776;
Estate
of Mota
vs.
Concepcion,
56 Phil.
712), a
political pa rt y inc orporat e d unde r Act 1459 (now,
B.P. Blg. 68, Corporation Code) and a registered labor
uni on , u n d e r Sec. 24(d), R.A. 875 (now, Sec. 243,
P.D. 442, Labor Code), with respect to its propert y. The
Roman Catholic Church has a juridical per sonali ty
(Barlin vs. Ramirez, 7 Phil. 47).
2..

Although
the
action was brought
against the
"Broadway Thea tre " which is not a juridical person, but
the lessee thereof filed an answer and later entered into a
compromise agreement admitting liability and pursua nt to
which judgm ent was rendered, the procedural defect was
cured. The writ of execution cannot be enforced a ga i n s
t th e t h e a t r e bu t a ga i n s t th e
le sse e
(Oscar
Ventanilla Enterprises Corp. vs. Lazaro, G.R. No. 53856,
Aug. 21, 1980).

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3. Sec. 1 of this Rule provides that only na t ural or juridical


persons may be parties in a civil action and, in this case,
the educat ional instit uti on failed to comply with its
obligation to incorporate under the Corporation Law after
its recognition by the Government. However, having
contracted with its teacher for 32 years under the
repre se ntati on tha t it was possessed of juridical person
ality to do so, it is now e stopped from den ying such
personalit y to defeat her claim a ga inst it (Chiang Kai
Shek School us. CA, et al., G.R. No. 58028, April 18, 1989).
4. Under Sec. 15 of this Rule, an entity, which is not registered
as a juridical person and, therefore, without the requisite
personalit y required of parties to a suit, may at least be
sued as a defendant in the first instance so that the
m em be r s there of shall be disclosed by being required to be
individuall y named in the answer. This exception is
dictated by the need to identify its members since it is from
them tha t the plaintiff may seek relief on his claim.
5. Non-reside nt aliens living abroad may mai ntai n personal
actions against Philippine residents in Philippine courts,
even if a counterc laim is brought a ga i nst said plaintiffs
(Dilweg us. Philip, L-19596, Oct. 30, 1964).
Sec. 2. Parties in interest. A**e* L p a r t y in
i nte res t i * tk e par t y wh o stan d s t o b e be ne fi te d o r
i njured by - th e j u dg me n t i n th e suit, o r th e party
e nti tle d t o th e avai l s o f th e suit. Unl e s s ot h e r w i s e
a ut h or i z e d by law or the s e Rul es, eve ry ac ti o n mus t
be pr os e c u t e d or de f e n de d in the nam e of the real
party in i nte rest. (2a)
NOTES
1. A real part y in interest is the part y who stands to be benefited
or injured by the judgment in the suit, or the part y
entitled to the avails of the suit (Salonga vs.
-ire*

<

(85

c 1
* '

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Warner, Barnes & Co., Ltd., 88 Phil. 125). The term


"party" includes a surety who, although not initially a
party to the case, is sought to be held liable on its
performance bond, hence, as such party, it can appeal
from the order rendered thereon (PHHC vs. Jeremias,
et al., L-43252, Sept. 30, 1976).
2.

If the suit is not brought in the name of or against the real


part y in interest, a motion to dismiss may-be filed on the
ground that the complaint states no cause of action (Sec.
IfgJ, Rule 16).

3.

Where the action was brought by the attorney- in-fact of the


landowner in his own name, and not in the name of his
principal, the action was properly dismissed (Ferrer vs.
Villamor, L-33293, Sept. 30, 1974; Marcelo vs. De Leon,
105 Phil. 1175).
Sec. 3. Representatives as parties. W he r e th e
acti on is al l ow e d to be pr os e c ut e d or de f e n de d by a
r e p r e s e n t a t i v e or s o me o n e ac t i n g in a fi duc i a r y
ca pac i ty , th e be ne fi c i ar y shall be i nc l u de d in the
title of the cas e and shall be de e me d to be th e real
party in i nte rest. A r e p r e s e n t a t i v e ma y be a tr u ste e
o f a n e x p r e s s tr ust , a g u a r d i a n , a n e x e c u t o r o r
a d mi ni st r a t or, or a party a ut h or i z e d by law or the s e
Rule s. A n age n t ac t i n g i n hi s ow n na m e an d for
th e be ne fi t o f a n u n di s c l os e d pr i nc i pa l ma y su e o
r b e sue d w i th ou t j oi ni n g th e pr i n c i pa l e xc e p t w he
n th e c o n t r a c t i n v o l v e s t h i n g s b e l o n g i n g t o th e
pri nc i pal. (3a)
NOTES

1. The impleading of the beneficiary as a part y in the suit is


now a mandatory requi reme nt, and not a dis cretionary
procedure as it was in the former section of this Rule.
This amended section enum e ra t e s the same exceptions to
the rule tha t the action shall be brought in
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SE C . 3

the name of the real part y in interest. The phrase "party


a u t h o r i z e d b y law o r t he s e R ul e s, " i n c l u de s th e
re p re se nt a t i ve of the owner in ejectment proceedings
(Sec. 1, Rule 70), a receiver (Sec. 6, Rule 59) and the
assi gne e of a de bt or in insolvenc y procee dings. The
judgment creditor may sue the debtor of a judgment debtor
if the former denies the indebte dness (Sec. 43, Rule 39).
Other instances under the substantive law are found in
Arts. 487, 1311, 1497, 1664, 2103 and 2118 of the Civil
Code.
2. A labor union, as the duly recognized bargaining unit of its
membe rs, can file a re presenta ti ve suit in their behalf under
this section which authorizes a part y with whom or in whose
name a contract has been made for the benefit of
another, to sue or be sued without joining the pa rt y for
whose benefit the action is pre se nte d or defended (Liberty
Mfg. Workers Union vs. CFI of Bulacan, et al., supra; cf.
National Brewery, etc. Labor Union of the Phil. vs. San
Miguel Brewery,
Inc.,
L-19017,
Dec.
7, 1963). This
re p re se nt a t i ve capacity of labor unions is recognized under
the Labor Code (Sec. 243) but, generally, labor cases are not
originally cognizable by the regular courts.
3. . A*cor poration cannot mai ntai n an action to recover
property belonging to its stockholders as it has no
interest therein, it having a separate personality and the
properties not having been transferred to it (Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., L-31061, Aug.
17, 1976).
4..

Under the pre se nt Rules, parties


classified and defined as follows:

in interest may be

a.

Indispensable parties: Those without whom


de term inat ion can be had of an action (Sec. 7).

no final

b. Necessary parties: Those who are not indispen sable but


ought to be parties if complete relief is to be

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SE C . 3

accorded as to those already parties, or for a complete


determination or settlement of the claim subject of the
action (Sec. 8).
c.

Representative parties:
Rule.

Those referred to in Sec. 3 of this

d. Pro forma parties: Those who are required to be joined as coparties in suits by or against another party as may be
provided
by
the
applicable
substa nti ve
law or
procedural rule (Sec. 4).
e.

Quasi parties: Those in whose behalf a class or repre se ntati ve


suit is brought (Sec. 17).

5.

The 1940 Rules of Court provided for the term "necessary


pa rti e s " but this was cha nge d to "proper" parties in the
1964 Rules of Court. The pre se nt Rules re ve rte d to the
original nom e nc l at ure as being more terminologically
accurate.
In American law on the classification of parties, from
whic h we de ri ve d and p a t t e r n e d our c once pt s wit h
appropriate modifications, formal or proper parties are
those who have no interest in the controversy between
the immediate litigants but have an intere st in the sub
j ec t -ma t te r which may be convenientl y set t le d in the
suit, and thereby prevent further litigation; they may be
made parties or not, at the option of the com plai nant .
Necessary pa rti e s are those pa rti e s who have such an
i nte re s t in the s ub j e c t -m a t t e r of a suit in equit y, or
whose rights are so involved in the controversy, tha t no
complete and effective decree can be made, disposing of
the matte r in issue and dispensing complete justice, un
less the y are before the court in such a m a nne r as to
entitle them to be heard in vindication or protection of
their i nt e re s t s (see Black's Law Dictionary, 4th ed.,
pp. 1275-1276; citations omitted).
The classification the rei n also spea ks of nomi nal
parties as those who are joined as plaintiffs or defendants,
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not because they have any real inte rest in the subject
ma tt e r or because any relief is de ma nde d as a ga i nst
them, but merely because the technical rules of pleadings
require their presence on the record. This would roughly
corre spond to our conce pt of and rule on pro forma
parties wherein the joinder of spouses is required, or in
certi orari actions whe re i n th e court or agency whose
adjudication is challenged is im plea ded as the public
re sponde nt , with th e pre va il i n g part y as the pri va te
respondent.
6. In the pre se nt definition of a necessary part y, the additi on of
th e a l t e r n a t i v e clause "or for a complete de term inat ion or
settle ment of the claim subject of the action" is intended to
make
the
definition
of necessary
parties
more
comprehensive and complete. Thus, if the plaintiff creditor
sues only one of the two joint debtors, the j udgm e n t
t he re i n would accord complete relief as between him and
said defendant. However, the co-debtor who was not
impleaded is definitely a necessary party since a judgme nt
in tha t action with respect to his own joint liability is
necessary for a complete set tleme nt of the debt in favor
of the plaintiff. Without such alterna tive c l a us e , th e
u n i m p l e a d e d de bt o r woul d not b e considered as a
necessary part y and the procedure and sanctions in Sec. 9 of
this Rule could not be applied to him.
7. .

Partie s
who wer e
not ini ti a ll y and formall y
impleaded as original parties to the case, but later bound
themselves to comply with the te rms of a judgme nt on
compromise rendered therein may also be considered as
quasi parties in said case (Rodriguez, et al. vs. Alikpala,
L-38314, June 25, 1974).
Sec. 4. Spouses as parties. H us ba n d an d wife
shall su e o* be sue d joi ntl y, e xc e p t as pr ovi de d by
law. (4a)

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NOTE
1. The provision hereon in the 1964 Rules of Court
was merely a reproduction of Art. 113 of the Civil Code.
This is an ill ustra tion of joinder of pro forma pa rt ie s
required by the Rules. The propriety of suits by or against
the spouses should now take into account the pe rti nent
provisions of the Family Code.
Sec. 5. Minors or incompetent persons. A mi n o r
or a pe r s o n al le ge d to be i nc o mp e t e n t , ma y su e or
b e sue d wit h th e a ss i s ta n c e o f hi s father, mot he r ,
guar di an , or if he ha s none , a g ua r di a n ad litem.
(5a)
r
NOTES
-

r -

1. Under the 1964 Rules, a distinction was made be tween


une ma nc i pa t e d
and
e ma nc i pa t e d
minors.
An
unema nci pate d minor could sue or to be sued "through"
his pa r e n t or gua rdia n, tha t is, the action had to be
b r o u gh t i n th e nam e o f o r a ga i n s t suc h p a r e n t o r
gu a r di a n wit h th e de si gna t i on t ha t h e wa s bri ngi n g
the action or being sued in tha t capacity. In the case of
emancipated minors, they could sue or be sued "with the
assistance " of the pa re nt or guardian. The action was in
the name of or against the minor, with an indication that
he was being assisted therei n by his pa re nt or guardian.
Note tha t 18 years is now the age of majority (R.A. 6809)
and for contracting marriage (Art. 5, Family Code).
2. Also, under the former Rules, it was necessary that to sue
or be sued in the cases provided by law, the incompetent
must have been judicially declared as such, and he could
thus sue or be sued only through his parent or guardian.
Under the present revision, the suit can be brought by or
against him personall y but with the assis tance of his
pa re nt s or his guardian. It is sufficient that

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his i n c o m p e t e n c y be al le ge d i n th e c o r r e s p o n d i n g
pleadings and the trial court may pass upon the trut h and
effects thereof.
Sec . 6. Permissive joinder of parties.All pe r son s
i n w ho m o r a g a i n s t w h o m an y ri gh t t o reli e f i n
res pe c t t o o r a r i s i n g ou t o f th e sam e t r a n s a c t i o
n or ser i e s of t r a n s a c t i o n s i s al l e ge d to e xist w he t he
r jointly, severally, or in the alternative, may, except as
ot he r w i s e pr ovi de d in the s e Rule s, join as plaintiffs
or be joi ne d as d e f e n da n t s in on e c ompl ai nt , w he r e
any q u e s t i o n o f la w o r fact c o m m o n t o all suc h
plaintiffs or to all suc h d e f e n da n t s ma y ari se in the
acti on; but th e cour t ma y mak e suc h or de r s a s may
be jus t to pr ev e n t an y plainti ff or d e f e n da n t from
be i n g e mba r r a s s e d or put to e xpe n se in connecti on
wit h an y p r oc e e di n g s i n w h i c h h e ma y hav e n o
interest. (6)
NO TES
1. In the case of indispensable parties and necessary parties,
their joinder in the action is compulsory (Secs. 7 and 8).
This section enunciates the rule on permissive joinder of
parties, tha t is, they can either he joined in one single
complaint or may themselves maintain or be sued in
se pa ra t e suit s. This rule is also applicable to
counterclaims (Go, et al. vs. Go, et al., 95 Phil. 378).
2. Permissive joinder of parties requires that:
a. The right to relief arises out of the same trans action or
series of transact ions;
b. There is a question of law or fact common to all the
plaintiffs or defendants; and
c. Such joinder is not otherwise proscribed by the provisions
of the Rules on jurisdiction and venue.

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SEC . 7

"Series of transactions" means separate dealings with


the parties but all of which dealings are directly connected
with the same type of subject-matter of the suit. The
third requirement is contemplated by the proviso "except
as otherwise provided in these Rules" stated in this section.
Formerly, it was held that several employees, hired
under separate contracts, could join in a suit for minimum
wages and non-pa yment thereof against their employer,
their contracts being a "series of transact ions" and there
is a common question of fact and law applicable to all of
them (Abrasaldo, et al. vs. Cia. Maritima, 104 Phil. 1051
fUnrep.J). The same rule applied where several employees
were jointly dismissed and not paid by their employer
(International Colleges, Inc. vs. Argonza, 90 Phil. 470).
The foregoing situations are now governed by the Labor
Code, but the doctrines in said cases are still applicable to
ordinary claims not involving labor cases or employeremployee re l a t i o ns hi p s as long as the re q ui si t e s for
permissive joinder of parties are present.
3. Where a complaint contained two causes of action, each for a
sum of money less tha n P20,000 (which was the n th e
m a xi m u m of th e j u ri sd i c t i ona l a m o un t for cases
cognizable by the municipal trial courts) owed by the
plaintiff to a different defendant and arising from different
and independent transactions, a lt hou g h the total of both
claims exceeded P20,000, the Regional Trial Court had no
juri sdicti on the n since the totalit y rule involving different
parties, in Sec. 33(1) of B.P. Blg. 129 and Sec. 11 of th e
I n t e ri m Rul es, is subje ct to th e re qui re m e nt s in this
section, one of which is tha t the right to relief arises out
of the same transaction or series of
transaction s
(Flores vs. Mallare-Philipps, et al., G.R. No. 66620, Sept.
24, 1986).

Sec.

92

7.

Compulsory joinder of
indispensable parties.

P a r t i e s i n i n t e r e s t w i t h o u t w h o m n o fi na
l

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SE C S . 7- 8

de te r mi nati on can be had of an action shall be joi ne d


either as pl ai ntiffs or de fe n da nt s . (7)
Sec. 8. Necessary party. A n e c e s s a r y party is
one wh o i s not i n di s p e n s a bl e but wh o ough t to be
joined as a party i f c o mpl e t e relief i s to be ac c or de d
a s t o t h o s e a l r e a d y p a r t i e s , o r for a c o m p l e t e
de te r mi na ti o n or s e t t l e me n t of th e clai m su bje c t of
the ac ti on . (8a)
NOTES
1.In the case of indispensable parties, the action ca nnot proc ee
d unl e s s the y ar e joine d (Borlasa vs. Polistico, 47 Phil. 345;
Cortez vs. Avila, 101 Phil. 705), whereas the action can
proceed even in the absence of some necessary pa rtie s. If
an indispensable part y is not impleaded, any j udgm e nt
would have no effectiveness; where as, even if a nece ssar y
pa rt y is not included in the suit, the case may be finally
determined in court, but th e j u d g m e n t t h e r e i n will not
re sol v e th e whole controversy.
2.. Ind i s pe ns a b l e pa rt ie s are those with such an int e re st
in th e cont roversy tha t
a
final decree would
necessarily affect their rights, so that the court cannot
proceed without their presence.
Necessary parties are
those whose presence is necessary to adjudicate the whole
controversy but whose interests are so far separable that
a final decree can be mad e in their absence wit hout
affecting them (Wyoga Gas & Oil Corp. vs. Schrack,
1 Fed. Rules Service, 292, cited in 1 Moran 191, 1979 Ed.).
3. Where, in an action to annul the sale of land made by the
defendant bank to its co-defendant spouses, the action was
dismi ssed with re spect to said defendant spouses, the case
must also be dismissed as against the defendant bank. The
defendant spouses are indispensable

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SE C . 9

parties, hence having been discharged by the trial court,


said court is no longer in a position to grant the relief
sought by the plaintiff (Pillado us. Francisco, 105 Phil.
1254 fUnrep.J). On the other hand, where the action was
dismissed against the defendants who, before the filing
of said action, had sold their interests in the land subject
of th e suit to thei r co-de fendant, the said di sm i ssa l
against the former, who are only necessary parties to the
suit, will not bar the action from proceeding against the
l at t e r as the re m a i n i n g de fe nda nt . Said re m a i n i n g
defendant ha ving been vested with absolute title over
the subject propert y, the trial court is in a position to
grant the relief sought if proved by the plaintiffs (Seno,
et al. us. Mangubat, et al., L-44339, Dec. 2, 1987).
Sec. 9. Non-joinder of necessary parties to be pleaded.
W he n e v e r in an y pl e a di n g in w hic h a c l ai m is
asse r te d a n e c e ss ar y party i s not joi ne d , th e pl e ade r
shall set forth his na me , i f kn ow n , and shal l state
wh y he i s o mi tte d. Sh oul d th e cour t find th e reaso n
for th e o mi s s i o n u n me r i t or i o u s , i t ma y or de r th e
i n c l u s i o n o f th e o m i t t e d n e c e s s a r y p a r t y i f
j ur i s di c ti o n ove r hi s pe r so n ma y be o bt ai ne d .
Th e fai l ure t o c o mpl y w it h th e or de r for hi s
i nc l usi on, w ith ou t justi fi abl e cau se , shall be de e me d
a w ai ve r of th e cl ai m agai n s t suc h party.
The n on- i nc l us i o n of a n e c e s s a r y par ty doe s not
pr ev e n t th e cour t from p r oc e e d i n g i n th e ac ti on ,
and th e ju dg me n t ren de re d th e r ei n shall be w ith
ou t pr eju di c e to th e rights of suc h n e c e s s a r y party.
(8a, 9a)
NOTES
1. This re vised provision re i t e ra t e s the need for impleading all
necessary parties in order that the claims involved in the
action may be completely de te rm i ne d

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therein and thereby avoid multiplicity of suits. The noninclusion of the necessary part y may be excused only on
meritorious grounds, absent which the court shall order
him to be impleaded if jurisdiction over his person can
be obtained, subject to the sanction in the second para
graph of this section. If his inclusion cannot, however,
be effected for valid reasons, under the third pa ra gra ph
of this section the action may proceed but the judgme nt
therein shall not prejudice the rights of tha t necessary
part y. Logically considered, therefore, neither shall his
rights be prejudiced if his non-inclusion in the action in
the first place was due to a valid cause.
2. Under the circumstances contemplated in the first pa ra gra ph
, the court shall order the inclusion of the necessary part y,
tha t is, the plaintiff shall be ordered to file an am e nde d
com plai nt im ple a di ng the nece ssar y party the rein as a
co-defendant. Where the plaintiff un- justifiedly fails or
refuses to do so, the sanction in the second pa ra gra ph
comes into play and the plaintiff shall be deemed to have
waived his claim against said part y. The same rule applies
to any pleading asserting a claim against a necessary
part y.
3. It is true tha t under Sec. 3 of Rule 17, where the plaintiff fails
without justifiable cause to comply with an order of th e
court, his com pla i nt may be dismi ssed. However, such
dismissal shall not be ordered where the plaintiff fails to
comply with the order of the court for the joinder of the
necessary part y under this Rule, in line with Sec. 11 thereof
which provides tha t non-joinder of parties should not be a
ground for dismissal of an action. Thus, the rule merely
declaring the waiver
of plaintiffs claim against the
necessary part y whose non-inclusion was unjustified, as
provided in the second pa ra gra ph of this section, is in
effect an exception to the provision on penalties imposed
on a disobedient part y under Sec. 3 of Rule 17 which
would have entailed the dismissal of the complaint itself.

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Sec. 10. Unwilling co-plaintiff. If th e c on se n t


of an y party wh o shoul d be joine d as plainti ff can
not be obtai ne d, he ma y be mad e a d e f e n da n t and
the reas o n the ref or shall be state d in th e c ompl ai nt.
(10)
Sec. 11. Misjoinder and non-joinder of parties.
N e i t he r mi s j oi n de r nor n on- j oi n de r o f p a r t i e e i s
groun d for di s mi ss a l of an ac ti on. P ar ti e s ma y be
dr oppe d or adde d by or der of the court on moti o n of
an y party or on its ow n i ni ti ati ve at an y stag e of
the ac ti o n and on suc h te r m s as are just. Any cl ai m
a g a i n s t a mi s j o i n e d par t y ma y b e s e v e r e d an d
p r oc e e de d wit h se par ate ly. (11a)
NOTES
1. Objections to defects in the parties impleaded should be
made at the earliest opportunit y, the moment such defects
become appa rent , by a motion to strike the names of the
parties impleaded. If there is misjoinder, a s e pa ra t e action
should be brou gh t a ga i ns t the pa rt y misjoined. Objection
to misjoinder cannot be raised for the first time on
appeal (Garcia vs. Chua, [CA], 50 O.G. No. 2, 653).
2. Non-joinder does not warrant dismissal but the court
should order the inclusion of the necessary part y (see
Sanchez vs. CFI, 40 Phil. 155). But if the case is erroneously
dismissed on this ground without stating that it is without
prejudice, and plaintiff did not appeal, such dismissal bars
the filing of another action on the same cause (Rivera vs.
Luciano, L-20844, Aug. 14, 1965).
3. Although both misjoinder of parties and causes of action
are not grounds for dismissal, they stand on different
premises as there can be misjoinder of pa rtie s even if there
is only one cause of action common to them,

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and there can be misjoinder of causes of action even if


there is only one plaintiff.
4. In case of misjoinder of causes of action, the one which has
been misjoined need merely be severed and proceeded with
separatel y, as provided in Sec. 6, Rule 2. Along the same
rationale, Sec. 2 of Rule
31
allows
the court, in
furtherance of convenience or to avoid prejudice, to order
a se verance and se pa ra t e trial of any claim, cross-claim,
counterclaim, or third-part y complaint, or of any se pa ra t e
issue or of any num be r of claims, cross- claims,
counterclaims, third-part y complaints or issues.
5. See Note 2 under Sec. 2, Rule 17.
Sec. 12. Class suit. Whe n th e su bje ct matter
o f th e c o n t r ov e r s y i s on e o f c o m mo n o r ge n e r a l
i nte res t t o man y p e r s o n s s o n u me r ou s tha t i t i s
i mpr ac ti c a bl e to joi n all as par ti e s , a nu mbe r of
th e m w h i c h th e c o u r t fi n d s t o b e s u f f i c i e n t l y
nu me r ou s and r e p r e s e n t a t i v e as to fully pr ote c t the
i n te r es t s of all c on c e r n e d ma y su e or de fe n d for
the be nefi t of all. Any party in i nte res t shall hav e
th e ri gh t t o i n t e r v e n e t o pr ot e c t hi s i n d i v i d u a l
interest. (12a)
NOT E S
1.The requisites of a class suit (or re presenta ti ve suit) are:
--a. The subject -matter of the controversy is one of
common or general interest to many persons;
--b. The pa rtie s affected are so numerous that it is
impracticable to bring them all before the court; and
y c. The parties bringing the class suit are sufficiently
numerous or re pre se nta t i ve of the class and can fully
protect the interests of all concerned.

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2.. The complaint must specially state tha t the same is being
brou gh t in behalf of ot he r s with whom th e parties
share a common interest (Borlasa vs. Polistico,
47 Phil. 345; Claudio vs. Zandueta, 64 Phil. 819). If
there is a conflict of interest between those sought to be
re pre se nt e d and those who filed the action, th e class
suit will not prosper (Ibahez vs. Roman Catholic Church,
12 Phil. 227). The part y bringing the class suit must
have the legal capacity to do so (Chinese Flour Importers
Association vs. Price Stabilization Board, 9 Phil. 461; AntiChinese League vs. Felix, 77 Phil. 1012; Recreation &
Amusement Association vs. City of Manila, 100 Phil. 950).
However, wrongs suffered by some stockholders do not
ne ce ssa ri l y c o ns t i t ut e th e sam e wrongs to ot he r
stoc khol ders as would creat e tha t common or general
intere st in the subje ct -matte r (Mathay, et al. vs. Con
solidated Bank & Trust Co., et al., L-23136, Aug. 26,
1974). See also Newsweek, Inc. vs. IAC, et al. (G.R. No.
63559, May 30, 1986) regarding a supposed class suit for
libel against sugar pl ante rs in Negros which was denied
since each plaintiff has a se parate and distinct re putati on
in the communit y.
3. Formerly, when the courts had jurisdiction in labor cases, it
was held that a class suit to recover wages due to 23
labore rs is not proper as the pa rt ie s sought to be
r e p r e s e n t e d ar e no t s o n u m e r o u s a s t o ma k e i t
impracticable to include them individually in the com
plaint (Diaz vs. De la Rama, 73 Phil. 104). The principle
would apply to ot he r simila r si t uat i ons not involving
labor relations.
4. One plaintiff was held qualified to bring a class suit in behalf
of the members of the Methodist Episcopal re li gi ous
a ssoci ation, i t a p p e a r i n g tha t he had been chosen by said
association to look after their intere st s (De la Cruz vs.
Seminary of Manila, 18 Phil. 334).

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5. . The pa r t i e s who br ou gh t th e class suit ha ve control


over the case with the right to compromise or even
discontinue the same. But a class suit cannot be com
promised or dismissed without the approval of the court
(Sec. 2, Rule 17). A member of the class is bound by the
judgment in the class suit, hence this section gives
him the right to intervene if he desires to protect his
own individual interests. In the intere st of justice, the
absent members should be notified of the filing of the
class suit whenever practicable.
6. As amended, this section now regulates not only the right
and re quirem ent s for a group to sue but also to defend
in a class suit.
7. A taxpa yer' s suit (see Gonzales vs. Hechanova, L-21897, Oct.
22, 1963; Phil. Constitution Association, Inc. vs. Gimenez, L23326, Dec. 18, 1965) or a stockholder's derivative suit are in
the na t ur e of a class suit, although subject to th e o t h e r
r e q u i s i t e s of th e c orre spondi ng governing law (cf.
Financing Corp. of the Phil. vs. Teodoro,
93 Phil. 679), especially on the issue of locus standi.
8. Claimants of different portions embraced in a big tract of land
cannot be impleaded altogether in a class suit by or
a ga i n s t the m as eac h one of the m ha s a pa r t i c u l a r
i nt e re s t i n his own porti on, se pa r a t e and different from
th e others
(see Rallonza vs. Villanueva,
15 Phil. 531; Berses vs. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., supra).
However, if the righ t to relief arose out of the same
t r a n s a c t i o n or se ri e s of t r a n s a c t i o n s and t he r e is a
common question of law or fact, they may be joined in
one suit as plaintiffs or defendants in accordance with
Sec. 6 of this Rule on permissive joinder of parties.
9.

An action does not become a class suit merely be c a use i t i s


d e s i g n a t e d as such in th e p l e a d i n g s . Whether the suit
is or is not a class suit depends upon

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the attending facts, and the complaint or other pleading


initiating the class action should allege the existence of a
subject-matter of common interest, as well as the existence
of a class and the number of persons in the alleged class,
in order that the court may be able to determine whet he r
the members of the class are so numerous as to make it
impracticable to bring them all before the court, to contrast
the number appearing on the record with the number in
the class, to ascertain whether the claimants on record
adequatel y re pre se nt the class, and to verify tha t the
subject-matter is of general or common interest (Mathay,
et al. vs. Consolidated Bank & Trust Co., et al., supra; cf.
Ortigas & Co. vs. Ruiz, et al., L-33952, Mar. 9, 1987).
10. Under the former Rule, when a supposed class suit was
filed, it was the duty of the court to make sure tha t the
pa r t i e s a ct ua ll y before i t were sufficie ntl y num e rous and
re pre se nta t i ve of the class. Unde r the pre se nt
formulation, such fact is one of the requisites for instituting
and maintaining a class suit.
The significance of such
change is that the parties bringing the suit have the
burden of proving the sufficiency of the repre se ntati ve
character which they claim. Corollarily, the defendant
can assail tha t fact through a motion to dismiss on the
groun d t ha t th e pl ai nt i ffs hav e n o c a pa c it y t o sue
(Sec. lfdj, Rule 16), tha t is, tha t they do not have the
repre se ntati on that they claim (see Lunsod vs. Ortega,
46 Phil 664).
Sec . 13. Alternative defendants. W he r e th e
plainti ff i s u nc e r t ai n agai ns t wh o of se ve r al pe r son s
he i s e nti tle d to relief, he ma y join any or all of the m
as d e f e n da n t s in th e al te r nati ve , al th ou g h a ri ght
to rel ie f a g a i n s t on e ma y be i n c o n s i s t e n t wit h a
right of relief agai n s t th e other. (13a)

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S E C S . 14-1 5

NOTE
1. Thus, where the owner of the goods is not sure
whether the same was lost in transit or while it was on
deposit in the warehouse of the a rr a s t r e operator, he
may sue the shipper or the operator in the alte rnati ve ,
although the ri ght a ga i nst the former is on admira lt y
while that a ga i n s t the ope ra t o r i s on c on t ra c t (see
Insurance Company of North America vs. United States
Lines Co., L-21839, April 30, 1968).
Sec. 14. Unknown identity or name of defendant.
W he ne ve r th e i de n ti t y or nam e of a d e f e n da n t i s
u n kn ow n , h e ma y b e sue d a s th e u n kn ow n ow ne r ,
heir, de v i s e e , or by suc h othe r de s i g na ti o n as the
case ma y re qui re; w he n hi s i de nti ty o r true nam e
i s d i s c o v e r e d , th e p l e a d i n g mu s t b e a m e n d e d
ac c or di ngl y. (14)
NO TES
1. A related provision in Rule 14 reads as follows:
"Sec.

14.

Service

upon defendant

whose

identity
or whereabouts are unknown. In any
action,
whenever the defendant is designated as an unknown
owner, or the like or whenever his whereabouts are
u n k n o w n an d c a nno t be a sc e rt a i ne d by dili gent
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."
2. This presupposes that the plaintiff really does not know the
identity and/or address of the defendant or is not in a
position to ascertain such identity or whereabouts.

Sec . 15. Entity without juridical


defendant. W he n tw o o r mor e

personality
as
p e r s o n s no t

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or ga n i z e d a s a n e nti t y wit h jur i di c al pe r s on al i t y


enter into a tr an sac ti on, they ma y be sue d un de r
the nam e by w hi c h the y are ge ne r all y or c ommo nl y
kn ow n .
I n th e a n sw e r o f suc h de f e n d a n t , th e n a me s
an d a d d r e s s e s o f th e p e r s o n s c o m p o s i n g sai d
e nti ty mus t all be reve al e d. (15a)
NOT E S
1.

Rule 14 pertinentl y provides as follows:


"Sec. 8. Service upon entity without juridical
personality. When persons associated in an entit y
without juridical personalit y are sued under the name
by which the y are generall y 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 maint aine d
i n such na me . Bu t suc h se rvi ce shal l not bind
individually any person whose connection with the
entit y has, upon due notice, been severed before the
action was brought."

2. With respect to judgm ent s to be re ndere d in this situation,


Sec. 6 of Rule 36 provides tha t when jud gm e nt is rendered
agai nst two or more persons associated in an entit y without
juridical personality, the judgm ent shall set out their
individual or proper names, if known.
3. The predecessor of this section referred only to suits
a ga i n s t two or more pe rson s a ssoci a te d in any business
and who transact such business under a com mon name.
Accordingly, i t was understood that the suit c on t e m p l a t e d
t h e re i n could be b ro u gh t only a ga i n s t associations which
do not have an independent juridical personalit y but are
engaged in business, thu s excluding non-profit or
charitable associations. Tha t distinction has been
eliminated in this revision since non-profit or

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SE C . 16

charitable associations can also commit and be liable for


actionable wrongs.
Sec . 16. Death of party; duty of counsel. When
ever a par ty to a pe n d i n g ac ti o n di es, and th e cl ai m
i s not th e r e b y e xt i n g u i s h e d , i t shall be the dut y of his
c ou n se l to infor m th e court w i thi n thirty (30) days
after suc h de at h of th e fact thereof, and to give the
nam e an d a ddr e s s of his legal re pr e se nt at i v e or
r e pr e s e n t a t i v e s . Fai l ure of c ou nse l to c ompl y wit h
this dut y shall be a gr ou n d for di sci pl i nary acti on.
The hei r s of th e de c e a se d ma y be al l ow e d to be
s u bs t i t ut e d for th e de c e a s e d , w i th ou t r e qui r i n g the
a p p oi n t me n t of an e xe c ut o r or ad mi ni str ato r and
the cour t ma y a pp oi n t a guar di a n ad litem for the
minor hei rs.
Th e c o u r t s ha l l f o r t h w i t h or de r sai d le ga l
r e p r e s e n t a t i v e o r r e p r e s e n t a t i v e s t o appe a r and
be su bs ti tu te d w ithi n a per i od of thirty (30) days
from notic e .
I f n o l e ga l r e p r e s e n t a t i v e i s n a me d b y th e
c o u n s e l for th e d e c e a s e d par ty, o r i f th e on e s o
na me d shal l fail t o a p pe a r w i t hi n th e s p e c i f i e d
pe r i od, th e c our t ma y or de r th e o p p o s i n g party,
w ithi n a s pe c i fie d ti me, to pr oc ure the a pp oi n t me n t
of an e xe c ut o r or a d mi n i s tr at o r for th e e state of the
de c e as e d , an d th e latter shall i mme di a te l y appe ar
for and on be hal f of the de c e ase d. The court c har ge s
in pr oc ur i n g suc h a p poi nt me nt , i f defraye d by the
opposi n g party, ma y be rec ove red as costs. (16a, 17a)
NOTES
1.

This section is a consolidation of Secs. 16 and 17 of the


former Rule, with the following amendments:

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a. The duties of the counsel, as specified under the first


paragraph, are now limited to the matter of the death of
his client and not in case of the latter' s incapacity or
incompetency. The reason for the change is that the death
of the client will require his subst itution by his legal
re pre se nt a ti ve to be ordered by the court wherein the
case is pending, or even the appointment of an executor
or adm i ni st ra t or but, this time, by a court of proba te
jurisdiction. In the case of incapacity or incompetency of
the part y, this fact will merely entail the appointment of
a gua rdian ad litem by the court trying the case upon
being informed thereof by counsel of the pa rti e s, the
parties themselves, or other reliable sources.
b. The failure of the counsel to comply with his duties under
this section is now a ground for disciplinary action, as his
inaction will result in undue delay in the proceedings or may
prejudice the interests of his client's successors in interest.
c. In the absence of a legal re pre se nta t i ve of the deceased
part y, the opposing part y shall be re quire d, within a
specified time, to procure the appoi ntme nt of an
executor or admini st rat or for the estate of the deceased in
an appropriate special proceeding. Under the former
proc e dure , in such a contingenc y the opposing pa rt y
was authorized to directly procure the appointm ent of a
legal re pr e s e nt a t i v e for the deceased by himself and
a p pa re nt l y wit hou t pa rt ic i pat i on by the hei rs of the
deceased and, consequently, with limited judicial interven
tion in the choice and appointment of such re presenta ti ve .
2. These provisions apply where the claim survives and
re ga rdl e ss of wh e t h e r ei t he r the plaintiff or the
de fe nda nt dies or wh e t h e r the case is in the trial or
a ppel l at e c ourt s. No su m m o ns e s ar e re qui re d to be
served on the substitute defendants. Instead, the order
of substitution shall be served upon the parties substituted
in the action; otherwise, the court does not acquire juris-

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SE C . 16

diction over the substitute part y (Ferreria, et al. vs. Vda.


de Gonzales, et al., 104 Phil. 143). Proceedings conducted
by the trial court after the death of the defendant, and
without such substitution, are null and void (Lawas vs.
CA, et al., L-45809, Dec. 12, 1986).
3.Upon learning of the death of a part y, the trial court should
not order the am e ndm e nt of the complaint but the
appearance of the decedent's legal re presenta ti ve . An
order for the- ame ndme nt of th e compla int before
subst itution of the deceased part y is void (Casenas vs.
Rosales, L-18707, Feb. 28, 1967). Upon the death of the
party, the attorne y has no further authorit y to appear,
save to inform the court of his client's death and to take
steps to sa fe guard the dece dent ' s intere st , unless his
services are further re tained by the subst itute pa rtie s
(Vda. de Haberer vs. CA, et al., L-42709, May 26, 1981;
Lavina, et al. vs. CA, et al., G.R. Nos. 78295 and 79917,
April 10, 1989; Heirs of Maxima Regoso vs. CA, et al.,
G.R. No. 91879, July 6, 1992). The defendant ' s legal
heirs are his legal repre se ntati ves if there is no pending
proceeding for the settlement of his estate (Magdalera vs.
Benedicto, 103 Phil. 1102 [Unrep.J). The rule is that in
the substit uti on of the deceased, priority is given to his
legal repre se ntati ve, i.e., the executor or admini st rat or of
his est ate. The court may allow the substitution by the hei r
s i n st e a d i f the r e i s u n r e a s o n a bl e dela y in th e
appointment of an executor or admini st rat or or when the
estate was extrajudicially settled (Lawas vs. CA, et al.,
supra).
4. 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 of affects primaril y and principally property
and property righto, the injuries to the person being merely
incidental; while in the causes of action which do not
su r vh , the injury complained of is to the person, the

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SE C . 16

property and property rights affected being incidental.


Thus, for instance, the claim of the deceased plaintiff in
the present action to quiet title over the land in litigation
affects primarily and principally propert y and property
rights and, therefore, is one that survives even after her
death (Bonilla, et al., etc. vs. Barcena, et al., L-41715,
June 18, 1976).
5.

.
The actions that survive against
the decedent' s
r e p r e s e n t a t i v e s are : (a) ac ti ons to re cover rea l and
personal property against the estate; (b) actions to enforce
liens thereon; and (c) actions to recover for an injury to
person or property by reason of tort or delict committed by
the deceased (Board of Liquidators,
etc. vs. Heirs of
Maxima M. Kalaw, et al, L-18805, Aug. 14, 1967).
See
Rule 87 and notes the reunde r. See also Sec. 20 of this
Rule whic h ha s been a m e n d e d an d provi de s a new
procedure for contractual money claims.

6. Where during the pendenc y of actions filed by the


gua rdian in behalf of his ward, the latter died and the
former was t he re a fte r appoi nted a d m i ni st ra t o r of the
estate of the decedent, he may be subst ituted as a
representative party in the pending actions (Ypil vs. Solas,
et al., L-49311, May 27, 1979).
7. It has been held tha t when a part y dies and the action
survive s his death, but no order of subst itution was
issued or effected by the court, the trial held by said court
was null and void since it did not acquire jurisdic tion over
the legal re presenta ti ve or heirs of the decedent, hence the
judgm ent was not binding on them (Ferreria, et al. vs.
Vda. de Gonzales, et al., supra). In a later case, however, i t was
also held tha t where counsel failed to comply with his dut y
under then Sec. 16 to inform the court of the de ath of his
client, the defendant, and no substit uti on of such part y was
effected, the proceedings and j ud gm e n t t he re i n are valid
i f the action (in this case, ejectment) survi ves the
de at h of said pa rt y and
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SE C . 16

said decision is binding upon his successor in intere st


(Sec. 47lb]. Rule 39; Florendo, et al. vs. Coloma, et al
G.R. No. 60544, May 19, 1984).
In the Florendo case, however, the defendant died
while the case was pe nding on appeal in the Court of
Appeals and, consequentl y, involved only a review of the
evidence pre se nte d with the participation of the original
party litigants. Also, since the binding effect of a judg
ment in an ejectment case upon the successors in interest
of a deceased l it i ga nt are specifically provided for in
Rule 39 , th e p r o c e d u ra l lapse a p pe a r s to have been
disre garded in the interest of substantial justice.
8. . Wher e th e plaintiff fa the r brou gh t an action against
a common carrier for the death of his son, but because
of his failing health he assigned all his ri ghts the rein
to a third part y, the subse quent death of said original
plaintiff does not te rminate the action. The rights assigned
are transfera ble in character and this situation is not
covered by Sec. 17 (now included in Sec. 16, as
amended) of this Rule since the plaintiff died after he
had already assigned his rights in the action.
Where
a right is transferred before the institution of the action,
the suit should be brought in the name of the assignee;
where
the tra nsfe r is made pendente lite, the assignee
should be s u b s t i t u t e d for the original plaintiff. The
failure to effect such formal substitution, however, will
not prevent the court from rendering judgment in favor
of the assignee. If judgm ent was rendered in favor of the
a ssi gno r be ca us e th e s u b s t i t u t i o n was not dul y
effected, th e a ssi gnor shal l hold the proceeds of the
j u d gm e n t in t r us t for th e a ssi gne e (Del Castillo vs.
Jaymalin, et al., L 28256, Mar. 11, 1982).
9. Sec. 16 of this Rule requires that prompt notice of the
death of the plaintiff should be made so that sub stitution
by a legal re presenta ti ve of the part y may be effected.
Where the counsel of plaintiff filed such motion

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SE C S . 17-1 8

for substitution 5 days after a decision in the case had


been rendered by the court, although plaintiff had died
more tha n a year prior the reto, said jud gm e n t is not
binding. No valid subst itution having been made, the
court never acquired jurisdiction over the legal repre
sentative for the purpose of making him a part y in the
case. Furt he rm ore , the motion for substitution filed by
counsel for the deceased is null and void as counsel' s
authorit y to re pre se nt the client had ceased with the
latter' s death (Chittick vs. CA, et al., L-25350, Oct. 4, 1988;
cf. Saligumba, et al. vs. Palanog, G.R. No. 143365,
Dec. 4, 2008).
Sec . 17. Death or separation of a party who is a
public officer. W he n a p u b l i c offi cer is a p a r t y in
a n a c t i o n i n hi s offi ci a l c a p a c i t y an d d u r i n g it s
p e n d e n c y di e s , r e s i g n s , o r o t h e r w i s e c e a s e s t o hol d
office, th e a c t i o n ma y b e c o n t i n u e d an d m a i n t a i n e
d b y o r a g a i n s t hi s s u c c e s s o r if, w i t h i n t h i r t y (30) da y
s afte r th e s u c c e s s o r t a k e s office o r suc h ti m e a s
ma y b e g r a n t e d b y th e c o u r t , i t i s s a t i s f a c t o r i l y
s h o w n t o th e c o u r t b y an y p a r t y t h a t t h e r e i s a
s u b s t a n t i a l ne e d for c o n t i n u i n g o r m a i n t a i n i n g i t an d
t h a t th e s u c c e s s o r a d o p t s o r c o n t i n u e s o r t h r e a t e n s
t o a d o p t o r c o n t i n u e th e a c t i o n o f hi s p r e d e c e s s o r .
Be for e a s u b s t i t u t i o n i s m a d e , th e p a r t y o r offi ce r t o
b e a ffec t e d, u n l e s s e x p r e s s l y a s s e n t i n g t h e r e t o ,
sha l l b e gi v e n r e a s o n a b l e n o t i c e o f t h e a p p l i c a t i o
n t h e r e f o r an d a c c o r d e d a n o p p o r t u n i t y t o b e h e a r d .
(18a)
Sec . 18. Incompetency or incapacity. If a p a r t y
b e c o m e s i n c o m p e t e n t o r i n c a p a c i t a t e d , th e c o u r t ,
u po n m o t i o n wi t h n o t i c e , ma y allo w th e a c t i o n t o
b e c o n t i n u e d b y o r a g a i n s t th e i n c o m p e t e n t o r
i n c a p a c i t a t e d p e r s o n a s s i s t e d b y hi s le ga l g u a r d i a n
or g u a r d i a n ad litem. (19a)

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Sec . 19. Transfer of interest. In ca s e of an y t r a n s f e


r o f i n t e r e s t , th e a c t i o n ma y b e c o n t i n u e d b y o r
a ga i n s t th e o r i g i n a l p a r t y , u nl e s s th e c o u r t upo n
m o t i o n d i r e c t s th e p e r s o n t o wh o m th e i n t e r e s t i s
t r a n s f e r r e d t o b e s u b s t i t u t e d i n th e a c t i o n o r j oi ne d
wi t h th e o r i gi n a l p a r t y . (20)
NOT E S
1. These sections provide for the other instances wherein
subst itution of parties is proper, subject to the conditions
therei n and whenever the court, upon motion and notice,
finds justifiable reason therefor.
2. The "officer of the Philippines" contemplated in Sec. 17 does
not include a judge who is sued in connec tion with the
exercise of his judicial functions as any action impugning
it is not abated by his cessation from office (Republic vs.
CFI of Lanao del Norte, L 33949, Oct. 23, 1973, jointly
deciding therein L-33986 and L-34188).
3. Sec. 17 has been amended to make it clear that the action
contemplated therein is one brought against the public
officer in his official capacity. Also, this section is no longer
limited
to actions
involving
"an
officer of the
Philippines," as it was under the former Rule, since the re
are pe rm i ssi ble i nst a nc e s for ma i nt a i ni n g
civil suits
a ga i nst public officers of a foreign government, subject to
the na ture of the action and considerations of internati ona l
law and agreements. Furthermore, it is not required, as
clarified under this revision, that what the successor in
office is continuing or threate ns to adopt and continue is an
action of his predecessor "in enforcing a law alleged to be in
violation of the Constitution of the Philippines." The
challenged action of a public officer need not necessarily
involve a constitutional issue. It is believed that no such
delimitation was intended under the old
Rule which
authorized such substitution as long as

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it was satisfactorily shown to the court tha t there was a


substantial need for continuing the action (see Moore's
Federal Practice, Vol. II, p. 243).
4. Under Sec. 18, as amended, in case of supervening
incapacit y or incompetency of a part y, the action shall
continue to be prosecuted by or against him personally
and not t hrough his re p re se nt a t i ve s , in line with the
amendments in Secs. 3 and 5 of this Rule, since he con
tinues to be the real party in interest although assisted
by the corresponding guardian.
5. Sec. 19 of this Rule does not provide tha t the substit uti on
of pa rtie s contemplated the rein is manda tory, it being
permissible to continue the action by or against the original
part y in case of transfer of intere st pendente lite. As the
original part y is bound by the final outcome of the case, his
subst itution by the transferee is not necessary unless the
subst itution by or the joinder of the latter is required by
the court; otherwise, failure to do so does not w a r r a n t
the dismi ssal of th e case. A t r a n s f e r e e pendente lite is a
p r o p e r , an d no t an i nd i s pe ns a bl e , pa rt y in the case
(Heirs of Francisco Guballa, Sr., et al. vs. CA, et al, G.R. No.
78223, Dec. 19, 1988). However, where the transfer was
effected before th e c o m m e n c e m e n t of th e suit, th e
t r a n s f e re e mus t necessaril y be the defendant or the
plaintiff, but he may file a t h i r d - pa r t y com plai nt a ga i ns t
and im ple a d th e transferor in the action whene ver the
same is
necessary and proper for
a
complete
de term inat ion of all the rights of the parties.
Se c . 20 . Action on contractual money claims.
W he n th e a ct i o n i s for re c o ve r y o f mone y a r i s i n g
from c o n t r a c t , e x p r e s s o r i m p l i e d , an d th e
de fe nda nt dies before entr y of final j u d gm e n t in th e
cour t i n whic h th e acti on wa s pe n d i n g a t th e tim e
o f suc h d e a t h , i t sha l l no t b e d i s m i s s e d bu t
sha l l

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SE C . 2 0

i ns t e a d be a ll owe d to c o nt i nu e unt i l e nt r y of final


j u d g m e n t . A fa vo ra bl e j u d g m e n t o b t a i n e d by th e
pl a i nt i f f t h e r e i n shal l b e e nforce d i n th e m a n n e r
e spe c ia l l y pro vi de d i n t he s e Rule s for p r o s e c u t i n g
claims a ga i nst th e e st a t e of a deceased person. (21a)
NOTE S
1. This was the former Sec. 21 of the old Rule which has been
amended to provide a new procedure specially for the
disposition of cont ract ual money claims where the
defendant dies before the termination of the action thereon.
Two importa nt aspects thereof must inceptively be ta ke n
note of: (1) th e action mus t primaril y be for recovery of
mone y, debt or i nte re s t the re on, and not where the
subject m a t t e r is prima ril y for some other relief and the
collection of an amount of money sought therein is merely
incidental thereto, such as by way of damages; and (2) the
claim subject of the action arose from a contract, express
or implied, entered into by the decedent in his lifetime or
the liability for which had been assumed by or is
imputable to him.
2. Under the former procedure, the date of the death of the
defendant, in relation to the stage of the action at that time,
was de term inat i ve of the procedure that should be followed
thereafter. If he died "before final judgme nt in the Court
of Fi rs t In sta nc e ," the action should be dismissed without
prejudice to the plaintiff presenting his claim therein as a
money claim in the settlement of the estate of the
deceased defendant in accordance with and as required by
Sec. 5, Rule 86. The reason given for the adoption of such
procedure was that if the defendant dies and despite such
fact the case against him proceeds to j u d gm e nt , his e st a t
e will no ne t he l e s s have to be settled in a Regional Trial
Court (then, the Court of First Instance) whe re i n such
j u d gm e n t for money shall be presented as a claim.
Consequentl y, unless the action is
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dismissed upon his death, the subsequent proceedings may


result in a Regional Trial Court reviewing the decision of
another or even the same Regional Trial Court involving
the same money claim.
On the other hand, if the defendant died while the
case was on appeal from the judgm ent of the Regional
Trial Court, the appeal will continue with the deceased
being s ub st i t u t e d the rei n by his he irs or othe r legal
representative. When the judgment of the appellate court
the reon is the reafter re ndere d and shall have become
final and executory, tha t judgme nt shall be the basis of
the mone y claim to be filed in the proba t e court, as
likewise authorized by Sec. 5, Rule 86.
3. The present revised procedure is believed to be simpler and
more practi cal since, after all, the court whe re i n the
c ont ra c t ua l money claim was pe ndi n g a t the time of the
decedent' s deat h must have been fully acquainted with the
facts and issues therein, or may even have been in the
process of rendering judgme nt thereon. Accordingly, to
require the dismissal of said case and the transfer thereof to
the probate court will cause an un necessary and otherwise
avoidable burden on said court which will then be obliged
to try and adjudicate the case as a claim agai nst the estate
of the deceased defendant, with the possibility that it may
even entail a duplication
of efforts and proceedings in
whole or in part.
4. Under the present procedure, if the defendant dies before
entry of final judgme nt in the court where it was pending at
tha t time, the action shall not be dismissed but shall be
allowed to continue until entry of final judgm ent thereon.
Such entry of final judgm ent may take place in the
Regional Trial Court itself, where no appeal was taken from
its judgment, or it may be the entry of judgme nt of the
appellate court. In either case, the former objection against
the probate court having to review the judgm ent of
anot her court, which may possibly be of the same rank,

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is eliminated. Since the money claim that shall thereafter


be filed in the probate court is based upon a final and
executory judgm ent of a court of competent jurisdiction,
the former does not have to, because it cannot, review
that judgme nt which, for tha t matter, is even conclusive
upon the parties thereto and their privies.
5. . This section provides tha t the action shall be
allowed to continue until entry of final judgment, hence
it will be necessary to have a legal repre se ntati ve appear
and be substituted for the deceased defendant. For this
purpose, the provisions of Sec. 17 of this Rule shall also
apply since the same governs regardless of which of the
parties to the action dies or whet he r the case is in the
trial or appellate court.
6. .
This section spea k s of c ont ra c t s , "express or
implied," which is the same terminology used in Sec. 5,
Rule 86 with re gard to one of the bases for the money
claims to be filed thereunder, and, formerly, in Sec. 1(a),
Rule 57 on preliminary at ta c hme nt with respect to the
bases of causes of action contemplated therein. In Leung
Ben vs. O'Brien, et al. (38 Phil. 182), it was held tha t
the contracts, express or implied, referred to in Rule 57,
include all purel y pe rsona l obligations which are not
based on a delict or a tort, that is, a quasi-delict. According
ly, on th e sam e c on c e pt ua l ra t i ona l e , the "implied"
contracts mentioned in this section and in Sec. 5, Rule 86
may properly include what are referred to in civil law as
quasi-contracts, and this is the term now used in Sec. 1(a)
of Rule 57, as amended.
7. Where the action is for the revival of a judgment for a sum
of money which has become stale for non- execution after
the lapse of 5 years, and the defendant dies during the
pendency of said action, Sec. 20 of this Rule is not
involved since the action is merely to keep alive the
jud gm e n t so tha t the sums a wa rde d in the action for
revival thereof may be presented as claims
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against the estate of the decedent (Romualdez, et al. va.


Tiglao, et al, G.R. No. 51151, July 24, 1981). In fact, to
be more accurate, the subject of the action is the dormant
judgment sought to be revived, and not a claim for a
sum of money of contractual origin, since the same
may also be said even if the claim arises from a crime or a
tort.
Sec. 21 . Indigent party. A p a r t y ma y be
a ut h or i z e d to li tigate his ac ti on, cl ai m or de fe ns e
a s a n i n d i g e n t i f th e c o u r t , u p o n a n ex parte
a p pl i c at i o n an d he ar i ng , i s satisfie d tha t th e
party i s on e wh o ha s n o mone y o r pr ope r t y suffi ci e nt
and avai l a bl e for food, she l te r an d basic n e c e s s i t i e s
for hi mse l f an d his family.
S uc h a u t h o r i t y shal l i n c l u d e a n e x e m p t i o n
from pay me n t of doc ke t and othe r lawful fe es, and
o f t r a n s c r i p t s o f s t e n o g r a p h i c n ot e s w h i c h th e
c our t ma y or de r to be fu r n i s he d him . Th e a mou n t
o f th e d o c k e t an d o t h e r l aw fu l fee s w h i c h th e
i n di ge n t wa s e xe mpt e d from payi n g shall be a lien
on an y j u dg me n t ren de re d in th e cas e favor a bl e to
the i n di g e n t , un l e s s th e c our t ot h e r w i s e pr ov i de s
.
An y a d v e r s e par t y ma y c o n t e s t th e gr an t o f
suc h a u t h o r i t y a t an y ti m e be for e j u d g m e n t i s
r e n de r e d b y th e tr ial court. I f th e c our t sh oul d
d e t e r mi n e after he ar i n g tha t th e par ty de c l are d a s
a n i n d i g e n t i s i n fac t a p e r s o n w i t h s u f f i c i e n t
i nc om e o r pr ope r ty, th e pr ope r doc ke t an d ot he r
l aw f u l fee s s ha l l b e a s s e s s e d an d c o l l e c t e d b y
the cler k of court. I f pa y me n t i s not mad e w ithi n
the ti m e fixed by th e court, e xe c u t i o n shal l i ssu e
for th e p a y me n t thereof, w i th ou t prej udi ce to suc h
othe r s a n c t i o n s a s th e cour t ma y i mpose . (22a)

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N OT E S
1. . The ter m "indigent part y" has been substituted for
what used to be called a "pftoper litigant." For purposes of a
suit in forma pauperis,-* pa upe r litigant is not really a
pa upe r but a person who is indigent although not a public
c ha rge , i.e., that he has no prope rt y or incomesufficient for his support aside from his labor, even if he is
self-supporting when able to work and in employment
(see Black's Law Dictionary, 4th Ed., pp. 913, 1284, citing
People vs. Schoharie County, 121 N.Y., 345, 24N.E. 830).
This same concept was adopted for purposes of criminal
cases in applying the provisions of R.A. 6033, R.A. 6034
and R.A. 6035 .
2.. The pre se n t concept of an indi gent liti gant is believed
to be more realistic
in light of the contemporar y
situation. The proof of pa upe ri sm required under the
former Rule consisted merely of affidavits or certificates of
the corre spondi ng t r e a s u r e r s tha t the part y had no
re gistered propert y. I t was considered inaccurate and
misleading since a party may be financially sound although
he ha s no t a c qui re d or r e gi s t e r e d any p ro pe r t y for
reasons of his own, hence the pre se nt revision opted for
judicial i nte r ve nti on with sanc tions as set out in this
section.
3. Section 21 , Rule 3 of the present Rules has not been
affected by the incorporation of Rule 141 on Legal Fees
and the two am e ndm e nt s thereto, now constituting Section
19 thereof. It is to be noted that said Section 21 of Rule 3
could have been repealed when the present
Rule
141 was adopted, or also amended when the latter was
then amended. The fact is tha t the two provisions can be
harmonized and can stand together.
Thus, when an application to litigate as an indigent
litigant is filed and the court finds that it complies with
Section 19 of Rule 141, the authorit y to litigate as such is
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automaticall y granted. However, if both requi reme nts


therein have not been complied with, a hearing shall be
conducted and the application resolved on the evidence
of the parties. Also, the adverse part y may later still
c on t e s t th e gra n t before j u d gm e n t an d proc e e d i n
accordance with the present provisions of said Section 21
(Algura, et al. vs. City of Naga, et al., G.R. No. 150135,
Oct. 30, 2006).
Sec. 22. Notice to the Solicitor General. In an y
ac t i o n i n v o l v i n g th e v al i di t y o f an y tr ea ty , law ,
or di n a n c e , e x e c u t i v e or de r , p r e s i d e n t i a l d e c r e e ,
rul es or re gu l a ti on s , the court, in its di sc reti on, ma y
require the a p pe a r a nc e of the S ol i ci t or Ge ne r al wh o
ma y be hear d in pe r so n or t hr oug h a r e pr e s e n t a t i v e
duly d e s i g n a t e d by him. (23a)

RULE

VENU E OF ACTIONS
S e c t i o n 1. Venue of real actions. A c t i o n s
affe c ti ng title to or p o s s e s s i o n of real pr ope r ty, or
i nte res t th e r ei n , shal l b e c o m me n c e d an d trie d i
n th e p r op e r c our t w hi c h ha s j u r i s di c t i o n ove r th
e are a w h e r e i n th e rea l p r o p e r t y i n v o l v e d , o r a
por ti o n the reof, i s si tu at e d .
F o r c r b r e ^ n t r y an d d e t a i n e r a c t i on s shal l b e
c o mme n c e d an d trie d i n th e mu n i c i pa l trial cour
t o f th e m u n i c i p a l i t y o r c i t y w h e r e i n th e r ea l
pr ope r ty i n v ol v e d , or a por ti o n thereof, i s si tu at e d .
(l[a],2[a]a)
Sec . 2. Venue of personal actions. All o t h e r a c t i on
s ma y b e c o m m e n c e d an d tr ie d w he r e th e pl ai ntiff
or an y of th e pr i nc i pa l plainti ffs resi de s , o r w h e r
e th e d e f e n d a n t o r an y o f th e p r i n c i pa l d e f e n da n t s
resi de s , or in th e cas e of a n on r e s i d e n t d e f e n da n t
w he r e h e ma y b e found, a t th e e l e c t i o n of th e
plaintiff. (2[b]a)
NO TES
1. Rule 4 formerly provided different rules of venue in the socalled inferior courts and the Regional Trial Courts, both in
real and personal actions, although the lower courts have
long assumed the stat us of courts of record. Such varia nt
rules of venue sometimes resulted in conflicting views
requiring clarification. Furthermore, Par. 9 of the Int erim
or Transiti onal Rules and Guidelines provided, as early as
1981, tha t "(t)he procedure to be observed in metropolitan
trial courts, municipal trial courts and m u n i c i p a l ci rc ui t
t ria l court s , i n all cases an d proceedings, whet he r civil
or criminal, shall be the same
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as tha t to be observed in the regional trial courts." The


present revised Rule has adopted uniform rules of venue
for all tria l court s, th e ve nue for real acti ons being
determined by the place where the real property is situated
and, for personal actions, by the residence of the parties,
with special provisions for nonresident defendants.
2. The venue of the real actions contemplate d in the first
pa ra gra ph of Sec. 1 of this Rule shall be "in the proper court
which has jurisdiction over the area wherein th e rea l
pr ope rt y invol ved, or a port i o n thereof, is situated."
This is so because unde r the a m e n dm e n t s
i n t r od uc e d by R.A. 7691 to Secs. 19 an d 33 of B.P. Blg. 129, both the
Re courts now have jurisdiction over real actions, depending
on th e va lu e of th e p r o pe r t y in c o n t r o ve r s y . Thi s
pre suppose s, however, tha t such real action involves
the title to or the possession of the real propert y or any
interest therein.
3. Where the subject-matter of the action involves various
parcels of land situated in different provinces, the venue
is determined by the singularit y or pluralit y of the
tra nsacti ons involving said parcels of land. Thus, where
said parcels are the objects of one and the same tra nsacti on,
the venue was in the the n Court of Fi rst Instance of any of
the provinces wherein a parcel of land is situated (El
Hogar Filipino vs. Seva, 57 Phil. 873). If the parcels of
land are subject of se parate and distinct t ra nsac t i ons, ther
e i s no common venue and se pa rat e actions should be laid
in the Court of First Instance of th e province whe re i n
each parcel of land i s sit ua te d (Mijares, et al. vs. Piccio,
etc., et al., 101 Phil. 142).
4. Ac ti ons for th e a n n u l m e n t or re sc i ssi on of a sale and the
ret ur n of realty (Muhoz vs. Llamas, et al.,
87 Phil. 737; Gavieres vs. Sanchez, et al., 94 Phil. 760;
Punsalan vs. Vda. de Lacsamana, et al., G.R. No. 55729,
Mar. 28, 1983), to compel the vendor to accept pa yme nt
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1-2

of the purc ha s e price of the land (Lizares vs. Caluag,


et al., L-17699, Mar. 30, 1962), or to compel the vendor to
deliver the certificate of title to the land (Espineli, et al.
vs. Santiago, et al., 107 Phil. 830) are real actions and
the location of the land determines the venue of the action.
But actions only to recover the purc ha se price of the land
(Garcia vs. Velasco, 72 Phil. 248) or for recovery agai nst
the Assurance Fund (Hodges vs. Treasurer of the Phil.,
50 Phil. 16) are personal actions.
5. An action for the annul me nt of the cancellation of the
a ward of a lot in favor of the plaintiff, which he was
pre pa re d to pay for p ur su a n t to said award, does not
involve the issue of possession or title to the property, hence
it is a personal action (Hernandez vs. DBP, et al., L-31095,
June 15, 1976).
6. .

An action for the re view of an a d m i ni st ra t i v e


decision involving real propert y should he brought in the
Regional Trial Court of the place where the officer who
re ndere d the decision holds office, and not where the
land is sit uate d (Salud vs. Executive Secretary, L-25446, May
22, 1969), such as where the matt er in dispute is a
fishpond permit (Digon vs. Bayona, 98 Phil. 442; Sarabia
vs. Secretary, 104 Phil. 115) or the ri ght to a timbe r
concession
(Suarez vs. Reyes, L-19828, Feb. 28, 1963),
the location of the propert y being immaterial.

7. . An action to compel th e mort ga ge e to accept pa ym ent


and for the consequent cancellation of a real estate
mort gage is a personal action, if the mortga gee has not
foreclosed the mortgage and
the mortgagor
is
in
possession of the premi se s, since ne it he r the plaintiff
mortgagor' s title to nor possession of the propert y is in
que st ion
(Hernandez vs. Rural Bank of Lucena, Inc.,
L-29791, Jan. 10, 1978; cf. Chua vs. Total Office Products,
etc. Inc., G.R. No. 152808, Sept. 30, 2005), otherwise, it
is a real action.

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8. An^ action by the landowner against the subdivi sion


developer for the rescission and termination of their
contract and the re turn to the plaintiff of all documents
and titles, with da ma ge s by reason of the defendant ' s
contractual breach, is a real action as the relief sought
will necessaril y entail the recovery by the plaintiff of
possession of the land or such unsold portions thereof,
hence the venue of the action is determined by the location
of the real propert y (Tenorio vs. Paho, et al, L-48117,
Nov. 27, 1986).
9. An action filed by the husband for damages, based on the
wife's adulterous acts, and for his sha re in the fruits of the
conjugal pa rt nership, with a pra yer for pre li mi na r y
injuncti on to re s t r a i n her from sel ling real prope rt y
be longi ng to the conjugal p a r t n e r s h i p , is a personal action
as he does not thereby ask to be declared the owner
thereof, nor for possession or partition of the same, but
merely seeks to exercise his right as adminis trator of the
conjugal partne rshi p (De Guzman, et al. vs. Genato, et al.,
L-42260, April 10, 1979).
10. The venue in ejectment cases under Sec. 1 of this Rule ma y
be c h a n ge d by a g r e e m e n t of th e p a r t i e s p u r s u a n t to
Sec. 4 the reof (Villanueva vs. Mosqueda, et al, G.R. No.
58287, Aug. 19, 1982), but it must now be made in writing
and before the filing of the action.
11. . The rules of venue for pe rsonal actions in the inferior
courts an d in the Re gional Trial Court s ar e generally
made to depend on the residence of the pa rtie s. The
residence referred to is the place where the part y
actually resides at the time the action is instituted (De la
Rosa vs. De Borja, 53 Phil. 998), not his pe rma ne nt home or
domicile (Koh vs. CA, et al, L-40428, Dec. 17, 1975; cf.
Arevalo vs. Quilatan, G.R. No. 57892, Sept. 21, 1982,
regarding service of summons at defendant' s residence).

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12. The residence of the person is his personal, actual or


physical habitation or his actual residence or place of abode
(Fule, et al. vs. CA, et al., L-40502, Nov. 29, 1976), whether
pe rm a ne n t or tem porar y as long as he resides with
continuity and consistenc y therei n (Dangwa Trans. Co.,
Inc. vs. Sarmiento, et al., L-22795, Jan. 31, 1977; Ang
Kek Chen vs. Spouses Calasan, G.R. No. 161685, July
24, 2007).
Sec . 3. Venue of actions against nonresidents. If
an y o f th e d e f e n d a n t s doe s no t r e s i d e an d i s no t
foun d i n th e P h i l i p p i n e s , an d th e a c t i o n affec ts th e
p e r s o n a l s t a t u s o f th e pl aint iff, o r an y p r o p e r t y o f
said d e f e n d a n t l o c a t e d i n th e P h i l i p p i n e s , th e a c t i o n
ma y b e c o m m e n c e d an d t r i e d i n th e c o u r t o f th e
pl a c e w h e r e th e p l a i n t i f f r e s i d e s , o r w h e r e th e
p r o p e r t y o r an y p o r t i o n t h e r e o f i s s i t u a t e d o r found .
(2[cla)
N OT E S
1. Where a pe rsona l action is a ga i nst a resident defendant and
a nonresident defendant but who is in the Philippines, both
of whom are principal defendants, the venue may be laid
either where the resident defendant resides or whe r e th e
n o n re s i d e n t de f e n da n t may be found, as authorized by
Sec. 2 of this Rule, but with an additional alternati ve venue,
i.e., the residence
of any of the principal plaintiffs,
pursua n t to Secs. 2 and 3.
It will be observed tha t when there is more tha n one
defendant or plaintiff in the case, the residences of the
principal pa rt ie s should be the basis for de t e rm i ni n g
the proper venue. Otherwise, the purpose of the Rule
would be defeated where a nominal or formal part y is
impleaded in the action since the latter would not have
the degree of intere st in the subject of the action which
would wa rra nt and entail the desirably active participation
expected of litigants in a case.

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2. Sec. 4 of the former Rule provided that "(w)hen improper,


venue is not objected to in a motion it is deemed waived."
Correlatively, Sec. 5 of Rule 16 provided that "(a)ny of the
grounds for dismissal provided for in this rul e, except
i m prope r venue , may be pl ea de d as an affirmative
defense, and a preliminary he ari ng may be had thereon
as if a motion to dismiss had been filed."
The aforesaid Sec. 4 of the former Rule has been
deleted, and Sec. 5 of Rule 16 correspondingly modified,
in these revised Rules. There does not appear to be any
cogent reason to single out im prope r venue from the
various preliminary objections that may be raised against
a complaint, and require tha t it may be raised only in a
motion to dismi ss unde r pain of its being considered
waived for failure to do so. It is entirely possible that
such objection wa s not i m m e di a t e l y di sc e rni bl e bu t
became appa re nt only at the time the defendant prepare d
his answer or that, for any other reason, he was not then
in a position to file a motion to dismiss.
Under these revised Rules, therefore, the ground of
improper venue is placed on the same footing as the other
grounds for a motion to dismiss e nume ra te d in Sec. 1 of
Rule 16 and is entitled to the same considerations in that,
if it is not raised in a motion to dismiss, it may likewise be
alleged as an affirmati ve defense in the a nswe r for a
preliminary hea ring thereon. At all events, it is likewise
subject to the same sanction provided in Sec. 1, Rule 9
tha t if it is not pleaded as an objection either in a motion
to dismiss or in the answer, it is deemed waived.
3. .

W he r e th e pl a i nt i f f is a n o n r e s i d e n t of th e
Philippines but is permitted to sue here (as in the case
of a foreign corporation with the requisite license under
Sec. 123 of the Corporation Code), then the venue is the
place where the defendant resides, or, in real actions,
where the real propert y or par t thereof is situated. This
is proper since the alternative venue granted to plaintiffs

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is not available to said corporation (see Time, Inc. vs.


Reyes, L-28882, May 31, 1971, involving a suit a ga inst
a foreign corporation).
4. . Where, on the ot he r ha nd, i t is the de fe nda nt who is a
nonresident and is not found in the Philippines, civil
actions are proper only when the action affects the
p e r s o n a l s t a t u s o f th e pl a i nt i f f o r p r o p e r t y o f th e
defendant, in which case Sec. 2 dete rmi nes the venue. See
Sec. 15, Rule 14 re ga rdi n g service of summ on s in these
cases.
5. . An exception to th e ge ne ral rules on venue is found in
civil actions for dama ges in case of libel, whet he r a
criminal action therefor has been filed or not, as special
rules of venue are provided in Art. 360 of the Revised
Penal Code, as last amended by R.A. 4363. Said venue
provisions appl y to both r e s i d e nt s and n on re s i d e nt s ,
a s su m i n g t ha t j u ri sd i c t i o n over th e l a t t e r ha s been
acquired (Time, Inc. vs. Reyes, et al., supra).
Sec . 4. When Rule not applicable. Thi s Rul e
shall not appl y
(a)In th os e c ase s w he r e a s pe c i fic rule or law pr ovi de s
o t h e r w i s e ; or
(b) Whe r e th e par ti e s hav e val i dl y agree d in w r i t i n g
b e f o r e th e f i l i n g o f th e a c t i o n o n th e e xc l u s i v e
ve n u e thereof. (3a, 5a)
NO TES
1.

Sec. 4(b) enuncia tes a clarification of the rule regarding


stipulations of the parties on venue.
It requires a valid
writte n a greem ent executed by the parties before the filing
of the action. Accordingly, the provision in the former Sec.
3 of this Rule to the effect tha t "(b)y writ ten agreement of
the pa rtie s the venue of an action may be changed or
tra nsfe rre d from one province to anot her"

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has been eliminated.


To be binding, the parties must have agreed on the
exclusive nat ure of the venue of any prospective action
between them. This adopts the doctrines laid down by
the Supreme Court requiring that, to avoid the general
rules on venue, the agreement of the parties thereon must
be restrictive and not permissive. Those decisions are set
out he re under by way of illustrations, aside from other
decisional rules on venue.
2. It is fundamental in the law governing venue of acti ons tha t
th e situ s i s fixed to a t t a i n th e gre a te s t conve nie nce
possible to th e l i t i ga nt s by t a ki n g into consideration the
maximum accessibility to them of the courts of justice
(Koh vs. CA, et al, L-40428, Dec. 17, 1975). Ven u e in
p e r s o n a l a c t i o n s i s fixed for th e convenience of the
plaintiff and his wit ne sse s and to promote the ends of
justice.
Where the contract, subject
of the suit, was
executed at the time when both plaintiff and defendant had
their business addresses in the City of Manila and contained
a proviso tha t all actions on said c o n t r a c t "ma y be b r o u g h
t i n an d s u b m i t t e d t o th e jurisdiction of the proper courts
in the City of Manila," but at the time of suit thereon all
the pa rtie s had their respective offices or residences within
the jurisdiction of the Province of Rizal, the action thus
instit ute d in the Court of First Instance of Rizal should
not be dismissed o n th e gr o u n d o f i m p r o p e r ve nu e as ,
u n d e r suc h ci rcum st ance s, the ends of justice can not be
served or promoted by confining the situs of the action in
Manila (Nicolas vs. Reparations Commission, L-28649, May
21, 1975; see also Capati vs. Ocampo, L-22742, April 30,
1982).
3. . The court may declare agre eme nts on venue as c ont ra r
y to public policy i f such st i pula t i on unj ustl y denies a
part y a fair opportunit y to file suit in the place
de si gna t e d by th e Rul es. The court shal l tak e into

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consideration the economic conditions of the pa rtie s, the


practical need to avoid num e rous suits filed a ga inst the
defendant in various pa rt s of the country and the peculiar
circumstances of the case (Hoechst Philippines, Inc. vs.
Torres, et al, L-44351, May
18, 1978).
4 . Inr c o n t r a c t s o f a d h e s i o n , th e rul e i s t h a t
ambiguities t he re i n are to be construed against the part y
who caused it. If the stipulat ions are not obscure and
leave no doubt on the intention of the parties, the literal
meani ng of th e s t i p ul a t i o n s mus t be held controlling
(Lufthansa
German
Airlines,
et
al.
vs.
CA,
et
al.,
G.R. No. 91544, May 8, 1992; RCBC vs. CA, et al.,
G.R. 133107, Mar. 25, 1999). C ont ra c t s of adhe si on
are not p ro hi b i t e d , bu t th e fact ual c i rc um s t a nc e s of
each case mus t be carefully scruti nized to de t e rm i n e
the respective claims of the pa rt ie s as to their efficacy
(see National Dev. Co. vs. Madrigal Wan Hai Lines Corp.,
G.R. No. 148332, Sept. 30, 2003).
T hus , in c o n t r a c t s i nvol vi ng pa s s a g e t ic ke t s , a
condition pri nt e d a t th e back there of tha t all actions
arising out of tha t contract of carriage can be filed only in
a particular province or city, to the exclusion of all others,
was declared void and unenforceable due to the state of
the shipping industr y. The Court noted tha t the acute
shortage of inter-i sland vessels could not provide enough
a c c om m o da t i on s for plaintiffs to tra ve l to the ve nue
indicated, aside from the fact tha t the passengers did
not have th e o p p o r t u n i t y to e xam i n e th e fine pri n t
providing for such venue (Sweet Lines, Inc. vs. Teves,
etc., et al., L-37750, May 19, 1978).
In a s u b s e q u e n t cas e i nvol vi ng 6 s u b s c r i p t i o n
c on t ra c t s for c el l ula r t e l e p h o n e s each covered by a
mobiline service agre eme nt, the subscriber challenged
the provisions in said a gre e m e nt s providing tha t the
venue for all suit s ari si n g there from shall be in the
proper court of Makati, with the subscriber waiving any

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other venue. The Supreme Court sustained the validity


of that venue stipulation, considering tha t the subscriber
has sufficient opportunit y to go over such sti pulati on
during each time he signed those agreements, as well as
i n th e s u b s e q u e n t s u b s c r i pt i o n s h e a c q ui re d while
r e m a i n i n g as a s u b s c r i be r for some tim e (Pilipino
Telephone Corp. vs. Tecson, G.R. No. 156966, May 7,
2004; cf. DBP vs. National Merchandising Corp., L-22957
& L-23737, Aug. 31, 1971).
5. A stipulation as to the venue of a prospective action does not
preclude the filing of the suit in the residence of the
plaintiff or tha t of the defendant under Sec. 2 of this Rule,
in the absence of qualifying or restrictive words in the
a greem ent tha t would indicate tha t the venue can not be
any place other tha n tha t agreed upon by the parties
(Polytrade Corp. vs. Blanco, L 27033, Oct. 31, 1969),
especially where the venue stipulation was imposed by
the plaintiff for its own benefit and convenience (Eastern
Assurance & Surety Corp. vs. Cui, et al., infra).
6. The former Court of First Insta nce of Quezon City had
jurisdiction where the defendant electric cor poration has
its principal office in Quezon City, although the acts
complained of we r e commit ted by its electric pla n t in
Da gup a n City, since corporate decisions are made in
Quezon City and the employees in Da gupa n City merely
carry out said orders, hence the acts sought to b e
r e s t r a i n e d ar e bei n g c o m m i t t e d i n Que zo n Cit y
(Dagupan Electric Corp. vs. Paho,
et
al.,
L-49520,
Jan. 28, 1980; cf. Limjap vs. Animas, et al., G.R.
No. 53334, Jan. 17, 1985; Olongapo Electric Light &
Power Corp. vs. National Power Corp., et al, L-24912,
April 9, 1987).
7. . In
actions
involving
domestic corporati ons, for
p u r p o s e s of ve n u e , wh a t i s c o n t r o l l i n g i s th e
location of its principal place of busi ness stat ed in its
articles of incorporation, not the branch office or place of

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business thereof (Hyatt Elevators and Escalators Corp.


vs. Goldstar Elevators Phils., Inc., G.R. No. 161026
Oct. 24, 2005).
8. Where the chattel mortgage had been fully paid, but the
mort gagee still sent a telegram demanding pay ment from
the mortgagor, the venue for the latter' s action for dama ges
is not governed by the venue stipulation in the chattel
mort gage since the suit is not based on said contract but on
defendant ' s act of sending the telegram (Zoleta vs. Romillo,
G.R. No. 58080, Feb. 15, 1982).
9. Since a thi rd-pa rt y complaint is but ancillary to a main
action, the rules on jurisdiction and venue do not apply to
it. Thus, a thi rd-pa rt y complaint yields to the jurisdiction
and venue of the main action even if said third-part y
complaint is based on a separate a greem ent which specifies
a different venue for suits arising from said a gre e m e nt
(Eastern Assurance & Surety Corp. vs. Cui, et al., G.R.
No. 54452, July 20, 1981).
10. Where only one of the two defendants, both being
indispensable pa rtie s, filed a motion to dismiss for im
proper venue, while the other filed his answer without
raising such objection, the hea ring should not proceed
a ga i ns t th e l a t t e r unt i l th e objection ra i se d b y th e
former shall have been resolved (Punzalan vs. Vda. de
Lacsamana, G.R. No. 55729, Mar. 28, 1983).
11. . The stipulation in a contract of affreightment to the
effect tha t said agre eme nt "shall be governed by and
construed in accordance with Singapore Law, and all
dispute s ari si n g (t ) he re u nde r shall be subject to the
exclusive jurisdict ion of the High Court of Singapore"
refers to the forum of the actions contemplated therein.
It may not be declared invalid on the theory that such
agreement would divest Philippine courts of jurisdiction by
agre eme nt of the partieB, since what has been agreed upon
was merely the venue of the action which may legally
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SE C . 4

be done. However, since the defendant did not timely


raise that issue but filed two motions to lift the writ of
pre li m i na r y a t t a c hm e n t and a counterbond therefor,
before it eventuall y filed a motion to dismiss on the ground
of improper venue, such objection has been waived and
the trial court erred in granting the motion and dismissing
the case (Phil. International Trading Corp. vs. M.V.
Zileena, et al., G.R. No. 102904, Oct. 30, 1992).
12. The foregoing considerations not wi t hst a ndi n g, the
Supreme Court, to avoid a miscarria ge of justice, has the
power to order a change of venue or place of trial in civil
or criminal cases or other judicial proceeding (see Sec.
5[4J, Art. VIII, 1987 Constitution; Magsaysay vs. Magsaysay,
et al, L-49847, July 17, 1980).
13. . Because of the supe rve nti on of R.A. No. 7691
{Appendix N) which, inter alia, amended the jurisdiction
of the regular trial courts in real actions, pending final
action on the present revised Rules, the Suprem e Court
approved in advance and promul gated the pre se nt Rule 4
to tak e effect on Augus t 1, 1995, i ssui ng there for its
Admi ni st rati ve Circular No. 13-95 on Jun e 20, 1995.

RULE 5
UN IF O RM P RO CED URE IN TRIAL COURTS
Se c ti o n 1. Uniform procedure. The pr oc e du r e
in th e M un i c i pa l Trial Courts shall be the sam e as
in th e R e g i o n a l Tria l Cour t , e xc e p t (a) w h e r e a
par ti c u l ar-pr ov i si on e x pr e s s l y o r i mpl i e dl y appl ie s
onl y t o e i t h e r o f sai d c our ts , o r (b) i n civi l case s
g ov e r ne d b y th e Rul e o n S u m ma r y P r oc e du r e , (n)
Sec . 2. Meaning of terms. The ter m "M unici pal
Trial Cour ts" as use d in the s e Rule s shall i nc l ud e
Me tr opol i tan Trial Courts, M unic i pal Trial Courts
in Ci ti e s , M u n i c i pa l Trial C our ts , an d M u ni c i pa l
Circuit Trial Cour ts, (l a )
NOTES
1. The former Rule 6 of these Rules was expressly repealed by
the Int erim or Tra nsitional Rules and Guide lines
promul gated by the Supreme Court effective upon the
implementation of B.P. Blg. 129. Par. 9 of said interim rules
further provided that "(t)he procedure to be observed in
metropolita n trial courts, municipal trial courts and
municipal circuit trial courts, in all cases and proceedings,
whether civil or criminal, shall be the same as that to be
observed in the regional trial courts." This is now provided
in Sec. 1, with exceptions.
2. It has been held tha t interplea der (Rule 62) is available in
inferior courts although they are not bound to follow
strictly the procedure therefor as set out for the the n Court
s of Fi rs t I n s t a n c e (Makati Dev. Co. vs. Tanjuatco, L-26443,
Mar. 25, 1969). It is submitted that since the procedure in
the present Regional Trial Courts is now applicable to
the inferior courts, while the latter
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can try i nte rpl ea de r actions, the y mus t perforce now


observe the procedure as provided for the Regional Trial
Courts.
3. Under Sec. 22 of B.P. Blg. 129 and Par. 21(a) of the
Inte rim Rules and Guidelines, all cases decided by the
inferior courts may be appealed to the Regional Trial
Courts. I t has been held that such provisions are broad
e n ou g h t o cover j u d g m e n t s b y de f a ul t , s u m m a r y
j u d gm e nt s and j ud gm e nt s on the pl e a di n gs re nde re d
by inferior c ourt s. The cont ra r y doc t ri ne s in Luzon
Rubber & Manufacturing Co. vs. Estaris, et al. [L-31439,
Aug. 31 , 1973] and reiterated in Stratchan, et al. vs. CA,
et al. [L-23455, Jan . 27, 1985] are thereby deemed over
ruled (Guanson vs. Montesclaros, et al., G.R. No. 59330,
June 28, 1983). The cont roversy in the pas t on this
point (see Vda. de Hoyo-a, et al. vs. Virata, et al., G.R.
No. 71171, July 23, 1985), which has now been set at
rest, was due to the fact that , formerl y, only default
judgm ent s of the Courts of First Instance were appealable
under the then Sec. 2 of Rule 41 .
4. Where the lower court had no jurisdiction over th e case,
th e Re gi onal Tria l Cour t does not ac qui r e a ppel l at e
j uri sdic t i on. However, while the a pp e l l a n t may assail
such jurisdiction on appeal, the pa rtie s may submit to the
original jurisdiction of the Regional Trial Court and said
court can proceed to try the case (Alvir vs. Vera, L-39338,
July 16, 1984). For th e p r e s e n t procedural rule, see Sec.
8, Rule 40.
5. Formerl y, the decisions of the then Courts of First Instance,
in cases appealed to them from the decisions of the inferior
courts in the exercise of the latter' s original jurisdiction,
were appealable to the Supre m e Court by certiorari under
Rule 45 if the only issue was whe t he r the conclusion of
the then Court of First Insta nce was in consonance
with law and j ur i s pr ud e nc e ,
hence
the issue
is
consequentl y a purel y legal question. Where,
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SE C . 2

however, the issue was whe t he r the findings of fact of


said C our t of Fi r s t In st a nc e were s up po rt e d by sub
stantial evidence, or such question was raised together
with a purel y legal issue, a petition for review should be
brought to the Court of Appeals in the form prescribed in
its Resolution of August 12, 1971. It was opined the rein
that a lt hou gh Sec. 22 of B.P. Blg. 129 aba ndone d the
" s u b s t a nt i a l e vi de nc e " rule formerl y provi de d unde r
R.A. 6031 in dete rmi ning whet he r to give due course to
the petition, the question of where to file said petition,
as above stated, has not been affected by B.P. Blg. 129
(Torres, et al. vs. Yu, et al, L-42626, Dec. 18, 1982; cf.
Mania vs. Vda. de Segarra, et al, L-48257, Aug. 24, 1984).
Unde r these revised Rules, appeals from a decision
of the Regional Trial Court rendered in the exercise of its
appellate juri sdicti on shall be brought to the Court of
Appeals re gardless of the issues involved. Thus, Sec. 2
of Rule 42 requires tha t in such appeal the petition for
review to the Court of Appeals must set forth, inter alia,
"the specification of the errors of fact or law, or both,
allegedly committed by the Regional Trial Court."
6. With respect to the system of amicably settling disputes at
the barangay level and which, in proper cases, is a
pre re qui sit e for the institution of an action in court under
P.D. 1508, generall y referred to as the Kataru- ngang
Pambarangay dec ree, see notes unde r Sec. 1, Rule 123.
Sec. 2 of said P.D. 1508 provided for the cases within the
jurisdiction of the lupon, while Sec. 3 thereof d e t e r m i n e d
th e ve nu e of th e p r o c e e d i n g s , i.e., th e barangay whe r e th
e proc ee di ngs shal l be conducted (Agbayani vs. Belen, et al,
G.R. No. 65629, Nov. 24, 1986). See, however, the
corresponding provisions of the Local G o v e r n m e n t Code
of 1991 (R.A. 7160) r e p r o d u c e d there under.
7. Excepted from the uniform procedure as stated in this
Rule are the cases covered by the Rule on
Sum-

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SE C . 2

mary Procedure promulgated by the Supreme Court for


inferior courts effective August 1, 1983, and last revised
with effectivity on November 15, 1991, which with respect
to civil cases provides as follows:
"Pursua nt to Section 36 of the Judiciary Reorga
nization Act of 1980 ( B . P . Blg. 129) and to achieve
an expeditious and inexpensive dete rmi nati on of the
cases referred to herein, the Court Resolved to pro
m ul ga t e the following Revised Rule on S um m a r y
Procedure:
I.
Applicability
SECTION 1. Scope. This rule shall govern the
summa ry procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts
in the following cases falling within their jurisdiction:
A. Civil Cases:
(1) All ca se s of forcible e n t r y an d unl a w fu l de tainer
irrespecti ve of the am ount of da ma ge s or unpaid
rentals sought to be recovered. Where attor ney's fees
are awarded, the same shall not exceed twent y
thousand pesos (1*20,000.00).
(2) All other civil cases, except probate proceed ings,
where the total amount of the pl aint iffs claim does not
exceed ten t housa n d pesos (F10.000.00), exclusive of
intere st and costs.
X

II.
Civil Cases
SEC. 3. Pleadings.
A.

Pleadings allowed. The only pl e a di n g s allowed to be


filed are the complaints, compulsory
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SE C . 2

counterclaims and cross-claims pleaded in the answer,


and the answe rs thereto.
B.

Verification. All pleadings shall be verified.

SEC. 4. Duty of court. After the court deter


mines tha t the case falls under summar y procedure,
i t ma y, from an e x a m i n a t i o n of th e a l l e ga t i on s
therein and such evidence as may be attached thereto,
di sm i ss th e case out ri gh t on any of th e ground s
appa re n t therefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forth
wit h issu e s u m m o n s which shal l st a t e tha t th e
summ a r y procedure under this Rule shall apply.
SEC. 5. Answer. Within ten (10) days from
service of su m m o ns , the de fe nda nt shall file his
answer to the complaint and serve a copy thereof on
the plaintiff. Affirmative and negative defenses not
pleaded the rein shall be deemed waived, except for
lack of jurisdiction over the subject matte r. Crossclaims and compulsory counterclaims not asserted in
the answer shall be considered barred. The answer
to counte rclai ms or cross-claims shall be filed and
served within ten (10) days from service of the answer
in which they are pleaded.
SEC. 6. Effect of failure to answer. Should the
defendant fail to answer the complaint within the
period above provided, the court, motu proprio, or on
motion of the plaintiff, shall render judgment as may
be wa rra nte d by the facts alleged in the complaint
and limited to what is prayed for therein: Provided,
however, tha t the court may in its discretion reduce
the amount of dama ges and attorney' s fees claimed
for being excessive or otherwise unconscionable. This
is without prejudice to the applicability of Section 4,
Rule 18 of the Rules of Court, if there are two or more
defendants.

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SEC. 7. Preliminary conference; appearance of


parties. Not later than thirt y (30) days after the
last answer is filed, a preliminary conference shall be
held. The rules on pre-trial in ordinary cases shall
be applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the pre
liminary conference shall be a cause for the dismissal
of his complaint. The defendant who appea rs in the
absence of the plaintiff shall be entitled to judgm ent
on his counterc laim in accordance with Section 6
hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plain
tiff shall be entitled to judgme nt in accordance with
Section 6 hereof. This Rule shall not apply where
one of two or more defendants sued under a common
cause of action who had pleaded a common defense
shall appear at the preliminary conference.
SEC. 8. Record of preliminary conference.
Within five (5) days after the te rmination of the pre
liminary conference, the court shall issue an order
stati ng the ma tt e rs take n up therein, including but
not limited to:
(a) Whet he r the pa rtie s have arrived at an ami cable
settlement, and if so, the te rms thereof;
(b) The stipulations or admissions entere d
parties;

into by the

(c) Whether, on the basis of the pleadings and the


stipulat ions and admissions made by the parties,
j u d gm e n t ma y be r e n d e re d w i t h ou t th e need of
furt he r proce edi ngs, in which event the jud gm e n t
shal l be r e n d e r e d wi t hi n t h i rt y (30) da y s from
issuance of the order;
(d)

A clear specification of mate rial facts which remain


controverted; and

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(e) Such other ma tt e rs


disposition of the case.

intended

to

expedite

the

SEC. 9. Submission of affidavits and position


papers. Within ten (10) days from receipt of the
order mentioned in the next preceding section, the
pa rtie s shall submit the affidavits of their witnesses
and other evidence on the factual issues defined in
the order, toget her with their position papers setting
forth the law and the facts relied upon by them.
SEC. 10. Rendition of judgment. Wit hi n
thirt y (30) days after receipt of the last affidavits and
position papers, or the expiration of the period for
filing the same, the court shall render judgment.
However, should the court find it necessary to
clarify certain mate rial facts, it may, during the said
period, issue an order specifying the ma tt e rs to be
clarified, and require the parties to submit affidavits
or other evidence on the said matte rs within ten (10)
days from receipt of said order. Jud gme nt shall be
re ndere d within fifteen (15) days after the receipt of
the last clarificatory affidavits, or the expiration of
the period for filing the same.
The court shall not resort to clarificatory pro
cedure to gain time for the rendition of the judgment.
X

IV.
Common Provisions
SEC. 18. Referral to Lupon. Cases requiring
referral to the Lupon for conciliation under the pro
visions of Preside ntia l Decree No. 1508 where there
is no showing of compliance with such requirement,
shall be dismissed wit hout prejudice, and may be
re vi ved only after such r e q u i r e m e n t shall have
been complied with, x x x.

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SEC. 19. Prohibited pleadings and motions.


The following pleadings, motions, or petitions shall
not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint x x x except on the
ground of lack of jurisdiction over the subject matter,
or failure to comply with the preceding section;
(b) Motion for a bill of pa rtic ula rs;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits
or any other paper;
( 0 Memoranda;
(g) Petition for certiorari, m a n da m u s , or pro hibition
agai nst any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement; 0 )
Reply;
(k) Third-part y complaints;
(1) Inte rve nti ons.
SEC. 20 . Affidavits. The affidavits required
to be submitted under this Rule shall state only facts
of direct personal knowledge of the affiants which are
a d m i s s i b l e i n e vi d e nc e , an d shal l sho w t h e i r
competence to testify to the m at t e rs stated therein.
A violation of this requi reme nt may subject
part y or the counsel who submits the same to
ciplinary action, and shall be cause to expunge
inadmi ssi ble affidavit or portion thereof from
record.

the
dis
the
the

SEC. 21 . Appeal. The judgme nt or final order


shall be appealable to the appropriate regional trial
court which shall decide the same in accordance with
Section 22 of Batas Pa m ba nsa Blg. 129. The decision
of the regional trial court in civil cases governed by
thi s Rule, inc l udi n g forcible ent r y and unla wful

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de tainer, shall be immediatel y executory, wit hout


prej udic e to a furt he r appeal tha t may be t a ke n
therefrom. Section 10 of Rule 70 shall be deemed
repealed.
SEC. 22 . Applicability of the regular rules.
The re gula r proc edure prescribed in the Rules of
Court shall apply to the special cases herein provided
for in a suppletory capacity insofar as they are not
inconsistent herewith.
SEC. 23 . Effectivity. This revised Rule on
S um m a r y Proce dure shall be effective on Novem
ber 15, 1991."
8. New court rules apply to pending cases only with
reference to proceedings therei n which take place after
the date of their effectivity. They do not apply to the
extent tha t in the opinion of the court their applica tion
would not be feasible or would work injustice, in which
event the former proce dure shall appl y. T hus, where the
application of the Rule on Summa ry Procedure will mean
the dismissal of the appeal of the part y, the same should
not apply since, after all, the procedure they availed of was
also allowed unde r the Rules of Court (Laguio, et al. vs.
Garnet, et al., G.R. No. 74903, Mar. 21, 1989).
9. While Sec. 6 (now, Sec. 7) of the Rule on Sum mar y
P r o c e d u r e m a k e s a p r e l i m i n a r y c on fe re nc e
mandatory, it does not logically follow that the absence
thereof would necessarily render nugatory the proceedings
had in the court below. A preliminary conference under
this Rule is akin and similar to a pre-trial under Rule 20,
both provisions being essentiall y designed to promote
amicable set tleme nt or to simplify the trial. Proceedings
conducted without pre-trial or a legally defective pre-trial
have been voided because either of the parties thereto
suffered subst ant ial prejudice thereby or were denied due
process. Thus, unless there is a showing of substantial

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prejudice caused to a part y, the i na dve rt e nt failure to


c a l e n da r for an d conduct a p re -t r i a l or p re l i m i n a r y
conference cannot render the proceedings illegal or void
ab initio. A part y' s failure to object to the absence of a
preliminary conference, despite opportunit y to do so, is
deemed a waiver of the right thereto, especially where
the pa rt y had already submi tted to the juri sdicti on of
the trial court (Martinez, et al. vs. De la Merced, et al.,
G.R. No. 82039, June 20, 1989).
10. E xce p t in cases covere d by th e a g r i c u l t u r a l t e na n c y
laws o r whe n th e law ot h e r w i s e e xp re ss l y provi de s, all
acti ons for forcible ent r y an d unl a wful detainer,
irrespective of the amount of dama ges or unpaid rentals
sought to be recovered, are now governed by the summ a r y
procedure provided in revised Rule 70.

P RO CE DU RE IN REGIONAL TRIAL COURTS


RULE 6
K IND S OF P L EA D I N G S
Se c ti o n 1. Pleadings defined. P l e a di ng s are th e
w r i t t e n s t a t e me n t s o f th e r e s p e c t i v e c l ai m s an d
de fe n se s o f th e par ti e s s u b mi t t e d t o th e c our t for
a p pr opr i at e j u dg me n t , (la )
Sec . 2. Pleadings allowed. The cl ai ms of a party
ar e a s s e r te d in a c o mp l a i n t , c o u n t e r c l a i m , c ross clai m , thir d (fourth , e tc .)-par t y c o mpl a i n t o r
complaint-in-intervention .
The de fe n se s of a party are al lege d in the answ e r
to th e p l e a di n g a s s e r t i n g a cl ai m agai n s t hi m.
An a n s w e r ma y be r e s p on de d to by a reply,

(n)

NOTE
1. In a broad sense, the term "pleadings" includes
all papers filed, excluding evidentiary matte rs, from the
complaint down to the judgme nt. Documents attached to
the pleadings and made a par t thereof are considered
evidence and also par t of the pleadings (Asia Banking
Corporation vs. Olsen & Co., 48 Phil. 529). A bill of
p a r t i c u l a r s c o n s t i t u t e s pa r t of th e pl e a di n g t ha t i t
suppleme nts (Sec. 6, Rule 12). A covering letter for a
pleading is not par t of the latter (Clorox Co. vs. Director
of Patents, L-19531, Aug. 10, 1967).
Sec. 3 . Complaint. Th e c o m p l a i n t i s th e
pl e adi n g al l e gi n g th e p l a i n t i f f s c aus e o r c a u se s o f
ac ti on. The na me s an d r e s i de n c e s of the plaintiff
and de fe n dant mus t be stated in the c ompl ai nt. (3a)

139

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SE C S . 4- 5

NOTES
1. The provisions of this section with re gard to a complaint are
also true with and are applicable to other initiatory
pleadings, as well as to petitions filed in the trial or
appellate courts, except that, in the latter case, it is the
act of the lower court which is complained of that has to
be alleged, instead of a cause of action as technically
understood.
2. The jurisdiction of the court and the nat ure of the action are
determined by the a ve rme nt s in the complaint. The pra yer
for relief is not controlling on the court and is merely
advisory as to the nat ure of the action, as it is the
a ve rme nt s in the complaint which control. See notes under
Sec. 2, Rule 7.
Sec . 4. Answer. An a n s w e r is a p l e a di n g in
w hi c h a d e f e n di n g par t y set s for th hi s de f e n s e s .
(4a)
Sec. 5 . Defenses. D e f e n s e s ma y e i t h e r be
n e g ati v e or affir mati ve .
(a) A ne ga ti v e de f e n s e i s th e s pe c i fic de ni a l of th e
mate r i a l fact or facts al l e ge d in th e p l e a di n g of th e
c l a i ma n t e s s e n t i a l t o hi s c a u s e o r c a u s e s o f a c t i on .
(b) An affir mative de fe n s e is an al l e g ati o n of a ne w
matte r w hi c h , whil e h y p ot h e t i c a l l y a d mi t t i n g th e
m a t e r i a l a l l e g a t i o n s i n th e p l e a d i n g o f th e
c l a i m a n t , w o u l d n e v e r t h e l e s s p r e v e n t o r ba r
re c ov e r y by hi m. Th e affir mative de f e n s e s i nc l ud e
fr au d , s t a t u t e o f l i mi t a t i o n s , r e l e a s e , p a y m e n t ,
i l l e g a l i t y , s t a t u t e o f f r a u d s , e s t o p p e l , f or me r
re c ov e r y , d i s c h a r g e i n ba n kr u pt c y , and an y othe r
matte r by wa y of c on f e s s i o n an d a v oi da n c e . (5a)

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SE C S . 4- 5

NOTE S
1. Section 5(a) defines a "negative defense" as the specific
denial of the material allegations in the complaint. A denial
is not specific jus t because it is so qualified (Agton vs. CA,
et al., L-37309, Mar. 30, 1982), and this is especially true where
a bla nket denial is made of all the averments of the
complaint instead of dealing particularl y with each. Such a
ge ne ra l de nial will be deeme d an admission of the
a ve rme nt s in the complaint.
2. To be considered a specific denial, Rule 8 provides:
"Sec. 10. Specific denial. The defendant must
specify each m at e ria l allegation of fact the trut h of
which he does not admit and, whenever practicable,
shall set forth th e subst anc e of the m at t e r s upon
whic h he re lies to s up po r t his de nia l . Where a
defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material
an d sh a l l de n y onl y th e r e m a i n d e r . W he r e a
d e f e n da n t i s w i t h o u t knowle d ge or inform at i on
sufficient to form a belief as to the trut h of a material
a ve rme nt made in the complaint, he shall so state,
and this shall have the effect of a denial."
3. Sec. 5(b) defines and illustrates the so-called affirmative
defenses. The enume rati on is not exclusive. Thus, tea
judicata (Fernandez vs. De Castro, 48 Phil. 123), ultra Mroa
aoto of a oorporation, or lack of authorit y of a person
assuming to act for the corporation (Ramirez vs. Orientalist
Co., 38 Phil. 634), laches (Gov't of the P.I. vs. Wagner, et al., 49
Phil. 944), and
unc onst i t ut i onal i t y (Santiago vs. Far
Eastern Broadcasting Co., 73 Phil. 408) are affirmati ve
defenses
which
should
be
specifically
pleaded.
Fu rt he rm ore , if no motion to dismiss had been filed, any of
the ground s there for may be rai se d as affirmative
defenses in the answer (Sec. 6, Rule 16).

141

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S E C S . 6- 7

Sec . 6. Counterclaim. A c o u n t e r c l a i m is an y
cl ai m w hi c h a d e f e n di n g party ma y hav e ag ai n s t
an o pp os i n g party. (6a)
Sec . 7. Compulsory counterclaim.A c o mpu l s or y
c ou n t e r c l ai m i s on e w hic h , bei n g c og n i z a bl e by th e
r e g u l a r c o u r t s o f j u s t i c e , a r i s e s ^ o u t ofj o r i s
c o n n e c t e d w i t h th e t r a n s a c t i o n o r o c c u r r e n c e
c o n s t i t u t i n g th e su bje c t ma t te r o f th e o p p o s i n g
p a r t y ' s c l a i m an d d o e s no t r e q u i r e fo r it s
a dju di c a ti o n th e pr e s e n c e o f thir d par ti e s o f w ho m
th e c o u r t c a n n o t a c q u i r e j u r i s d i c t i o n . Su c h a
c ou n t e r c l ai m mus t b e w ithi n th e j ur i s di c ti o n o f th e
cour t both as to th e a moun t and th e natur e thereof,
e x c e p t t h a t i n a n o r i g i n a l a c t i o n b e f o r e th e
R e g i o n a l Tria l C our t , th e c o u n t e r c l a i m ma y b e
c on s i de re d c omp ul s or y regar dl e ss of th e amount , (n)
NOTES
1. In American law from which we have derived the concept of
a counterclaim, it is considered as in effect a new suit in
which the part y named as the defendant is the plaintiff
and th e plaintiff becomes th e de fe nda nt (Roberts Min. &
Mill Co. vs. Schroder, CCA. Nev., 95 F. 2d 522). It is but
anothe r name for a cross-petition (Clark vs. Duncanson, 79
Okl. 180, 192 P. 806, 16 A.L.R. 450) or is a subst itute for a
cross-bill in equit y (Vidal vs. South American Securities Co.,
CCA. N.Y., 276 F. 855). The term is broader in meaning
tha n set-off or recoupment, and includes them both
(Williams vs. Williams, 192 N.C. 405, 135 S.E. 39; Aetna
Life Insurance Co. vs. Griffin, 200 N.C 251, 156 S.E.
515).
2. . A cl a ri fi ca t i on ha s been i n c o rp ora t e d
in th e
definition of a compulsory count e rc l ai m by re ason of
di ve rge nt views in the pas t as to w he t he r or not the
amount involved in the counterclaim should be take n into

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S E C S . 6- 7

account when such a counterclaim is pleaded in the Re


gional Trial Court, in the same manne r as the rule on
j u ri sd i c t i ona l a m ou n t re qui re d for a com pla i nt filed
therein. The pre se n t formulation ma kes i t clear tha t
such a counterclaim may be entert aine d by the Regional
Trial Court regardless of the amount involved provided
that, in addition to the other re quirem ent s, it is cognizable
by the re gula r courts of justice. Thus, for instance, a
claim arising from a labor dispute, although within the
jurisdictional amount provided for Regional Trial Courts,
may not be raised as a counterclaim therei n as, under the
law presentl y in force, the same should be filed in the labor
tribunals or agencies. The same is true with respect to
other claims jurisdiction over which is vested exclusively
in the quasi-judicial agencies.
3. . As thu s clarified, counterclaims are classified and
distinguished as follows:
A compulsory counterc laim is one which arises out
of or is necessaril y connected with the tra nsa ct i on or
occurrence tha t is th e s ub j e c t -m a t t e r of the opposing
part y' s claim. If it is within the jurisdiction of a re gular
court of justice and it does not requi re for its adjudi
cation the presence of third pa rtie s 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 us. Glories 40 Phil, 26).
A permissive counterclaim does not arise out of nor
is it necessaril y connected with the subject -matter of the
opposing part y' 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).
4. Accordingly, even if the counterclaim arises out of the
subject -matt er of the opposing part y' s claim but it is
not within the jurisdiction of the regular courts of justice,
or it requires for its adjudication the presence of thi r d
p a r t i e s over who m th e cour t ca nno t a c q ui r e

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S E C S . 6- 7

jurisdiction, it is considered as only a permissive counter


claim and is not barred even if not set up in the action
(see also Sec. 2, Rule 9).
5.A counterclaim is, therefore, compulsory if (a) it arises out of,
or is necessarily connected with, the trans action or
occurrence which is the subje ct -matte r of the opposing
part y' s claim; (b) it does not re qui re for its adjudication the
presence of third pa rtie s of whom the court cannot
acquire jurisdiction; and (c) subject to the qualification on
the jurisdictional amount with regard to counte rclai ms
raised in the Regional Trial Courts,
the court has
jurisdict ion to ent e rt a i n the claim. While a number of
criteria have been advanced for the determi nati on of
wh e t h e r the count e rc l ai m is com pul sory or permissi ve,
the "one compelling test of compulsoriness" is the logical
relationship between the claim alleged in the complaint
and tha t in the counterclaim, i.e., where se pa rat e trials of
each of the respective claims would involve a s u b s t a nt i a l
duplica tion of effort or time by the parties and the
courts, as where the y involve many of the same factual
and/or legal issues (Quintanilla vs. CA, et al., G.R. No.
101747, Sept. 24, 1997).
In Alday vs. FGU Insurance Corp. (G.R. No. 138822,
Jan . 23 , 2001), the Supreme Court reite rate d the criteria
in de term ini ng whe t he r a counterclaim is compulsory or
permissive, tha t is, whet he r or not (I) the issues of fact
an d law ra i s e d b y th e clai m an d c o u n t e r c l a i m ar e
essentiall y the same, (2) res judicata would bar a sub
se que nt suit or defendant ' s claim absent the compulsory
counte rclai m rule, (3) subst a nt i al l y the same evidence
suppor t or refute th e claim and th e c ounte rc la i m , or
(4) there is a logical relation between the claim and the
counte rclai m (citing Valencia vs. CA, et al. [263 SCRA
275J). See also Tan vs. Kaakbay Finance Corp., et al.,
G.R. No. 146595, June 20, 2003, and cases discusse d
therein.

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6. An after-acquired counterclaim is not barred, even if the


same arises out of or is necessarily connected with the
claim alleged in the complaint in the previous case but
was not set up therein, since Sec. 8 of Rule 11 provides that a
compulsory counterclaim "that a defending party has at
the time he files his answer shall be contained therein" (Tiu
Po vs. Bautista, G.R. No. 55514, Mar. 17, 1981).
7. . Where the counterc laim , and the same is true with a
cross-claim, was already in existence at the time the
defendant filed his answer but was not set up therein
through oversight, ina d ve rt e nce , or excusable neglect, or
when justice so requires, the same may be set up by
filing an ame nde d answer (Sec. 10, Rule 11). Where said
counterclaim or cross-claim matured after the filing of the
answer, the defending part y can set it up by filing a
suppleme ntal ans we r or pleading (Sec. 9, Rule 11). In
either case, leave of court is required and such pleadings
must be filed before the rendition of the judgment.
8. . A c o u n t e r c l a i m or c r os s - c l a i m nee d not be
answered if it is based on and inseparable from the very
defense raised by the opposing part y as it will merely
result in said opposing pa rt y pl eadi ng the same facts
already raised in his former pleading (Navarro vs. Bello,
102 Phil. 1019) or where the counterclaim merely alleges
the opposite of the facts in the complaint (Ballecer vs.
Bernardo, L-21766,
Sept.
30, 1966). Thus, where the
counterclaims are only for damages and attorney' s fees
arising from the filing of the complaint, the same shall be
considered as special defenses and need not be answered
(see Worcester vs. Lorenzana, 104 Phil. 234).
9. A plaintiff who chooses not to answer
counterclaim cannot be declared in
counterclaim. Where the complaint is
because the period for redemption had

145

a compul sory
default on such
for consolidation
expired and the

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SE C S . 9-1 0

counterclaim is for reformation on the ground that the


d oc u m e n t wa s re all y a m o r t ga ge , th e i n c o n s i s t e n t
allegations in the complaint stand as an answer to the
counterclaim (Gojo vs. Goyola, L-26768, Oct. 30, 1970).
10. A counterclaim or cross-claim must be answered within 10
days from service (Sec. 4, Rule 11). Where the part y is in
default on said counterclaim or cross-claim, the court
may render judgm ent gra nti ng such relief as th e
pl eadi ng may w a r ra n t or re quire the cl ai m a nt to submit
evidence (Sec. 3, Rule 9).
11. . Although the Government is generally immune from
suit, if it files an action against a private part y, it
surre nde rs its privileged position and the defendant may
validly file a counterc laim a ga i nst it (Froilan vs. Pan
Oriental Shipping Co., 95 Phil. 905).
12. It is not proper to allow a counterclaim to be filed a ga inst a
lawyer who has filed a complaint for his client and is
merely his repre se ntati ve in court, not a plaintiff or
complainant in the case, since such a procedure would result
in mischievous consequences. A lawyer owes his client
entire devotion to his genuine interest, war m zeal in the
ma i nt e na nc e and defense of his ri ghts, and the exertion of
his utmost learning and ability. He cannot properl y attend
to his duties if, in the same case, he is kept busy defending
himself. Where the lawyer acts in the nam e of a client,
the court should not pe rm i t his being impleaded as an
additional part y defendant in the counte rclai m in the very
same case where he is acting only as a counsel. Any claim
for alleged da ma ge s or other causes of action a ga inst him
should be filed in an entirely s e p a r a t e an d di s t i n c t civil
ac ti o n (Chavez, etc. vs. Sandiganbayan,
et al., G.R. No.
91391, Jan. 24, 1991).
Sec . 8. Cross-claim. A c r os s- c l a i m is an y c l ai m
by on e par ty ag ai n s t a co-par ty ar i si n g ou t of th e

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tr an s ac ti o n or oc c u r r e n c e tha t i s the su bje ct matte r


e i the r of th e or i gi na l ac ti o n or of a c o u n t e r c l a i m
the rei n . Suc h c r os s- c l a i m ma y i nc l ud e a c l ai m tha t
the party a gai n s t w ho m i t i s asse r te d i s or ma y be
liable to th e c r os s- c l a i ma n t for all or part of a cl ai m
asse r te d i n th e ac ti o n agai n s t th e c r os s - c l ai man t.
(7)
NOTES
1. A cross-claim differs from a counterclaim in that the former
is filed against a co-party and a cross-claim always arises out
of the transaction or occurrence that is the subj e ct -m at t e r
either of the original action or of a counterclaim therein.
A cross-claim which is not set up in the action is ba rre d,
except when i t is outside the jurisdiction of the court or if
the court cannot acquire jurisdiction over third parties
whose presence is necessary for the adjudication of said
cross-claim (Sec. 8 of this Rule; Sec. 2, Rule 9). The latter
case is what some writers call a permissive cross-claim.
2. The dismissal of the complaint carries with it the dismissal
of a cross-claim which is purely defensive, but not a crossclaim seeking affirmative relief (Torres, et al. vs. CA, et
al., L-25889, Jan. 12, 1973).
Sec . 9. Counter-counterclaims and
counter-crossclaims. A c o u n t e r c l a i m ma y be asse r te d agai ns t
an or i gi na l c ou n t e r -c l a i ma n t .
A c r o s s - c l a i m ma y al s o b e fi le d a g a i n s t a n
ori gi nal c r os s- c l a i ma nt , (n)
Sec. 10. Reply. A reply is a p l ea d i n g, th e office
or funetien of which is to deny , or allege facts in
d en ia l or avoidance of new ma tt e r s alleg e d by wa y
of defense in the answer and t h e reb y jo in or ma k e
issue as te aueh new m at ters . If a party d oe s n ot

147

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SE C S . 9-1 0

file suc h reply, all the ne w matte r s al le ge d in the


an sw e r are d e e me d c ontr ove r te d, '-h ^p P
I f th e plainti ff w i sh e s to i n te r pos e an y clai ms
a r i s i n g ou t o f th e ne w ma t t e r s s o al l e ge d , suc h
c l a i m s s h a l l b e se t f or t h i n a n a m e n d e d o r
s u p pl e me n t a l c ompl ai nt. (11)
NOTES
1. The primary purpose of the reply is to join issues with new
m at t e rs raised in the answer and thereby au thorize the
pleader of the reply to introduce evidence on said new
issues.
2. .
The filing of the reply is opt ional as the new
m at t e rs raised in the answer are deemed controve rte d
even without a reply. Where the part y desires to file a
reply, he must ne verthe less do so within 10 days from
service of the pleading responded to (Sec. 6, Rule 11).
3. . As then formulated, it was believed tha t in the
following instances, the filing of a reply was compulsory
and must be filed within the said 10-day period:
(a) Where the answer alleges the defense of usury in which
case a reply under oath is required, otherwise the
alle gations of usury are deemed admitte d (Sec. 11,
Rule 8); and
(b) Whe re th e ans we r i s ba se d on an acti onable docume nt in
which case a verified reply is necessary, ot he rwi se th e
ge nu i n e ne s s and due execut ion of said ac ti ona ble
doc um e n t are ge ne ra l l y de emed a d m i t t e d (Sec. 8, Rule
8).
With respect to par. (a) on usury, the view tha t all
alle gati ons of usur y had to be denied specifically and
under oath was engendered by the fact tha t the former
Sec. 1 of Rule 9, in ma ki n g the re q ui re m e n t for such
sworn denial unde r pain of admission of the alle gations

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on usury, did not make any distinction as to the pleadings


involved. However, in Liam Law vs. Olympic Sawmill,
et al. (L-30771, May 26, 1984), it was held tha t pursua n t
to Sec. 9 of the Usury Law, the first abovecited instance
requiring denial of allegations of usury under oath does
not apply to a case where it is the defendant, not the
plaintiff, who is alleging usury.
Accordingly, Sec. 11 of Rule 8 now expresses tha t
specific re quirem ent and provides that "(a)llegations of
usury in a complaint to recover usuri ous int e re st are
deemed admitted if not denied under oath." Hence, if the
a l l e ga t i o n of usur y i s c o n t a i n e d in th e de f e n d a nt ' s
answer, for instance, by way of defense to a complaint
for a sum of money, it is not necessary for plaintiff to file
a reply t he re t o in order to deny tha t allegation unde r
oath.
It is believed, however, that if such allegation was
made by the defendant in a counterclaim in that action,
it would be necessary for plaintiff, in order to controvert
the same, to make a specific denial under oath in the
answer to such counterclaim since the latter, after all, is
in the na t ur e of a counter-complaint of the defendant.
In fact, under Sec. 1, Rule 3, the term "plaintiff may refer
to the claiming part y, the counter-claimant, the crossclaimant, or the third (fourth, etc.) party-plaintiff.
The distinction here proposed is due to the fact that
a count e rc l ai m involve s a cause of action and seeks
affirmative relief, while a defense merely defeats the
plaintiffs cause of action by a denial or confession and
avoidance, and does not admit of affirmative relief to the
defendant (Lovett vs. Lovett, 93 Fla. 611, 112 So. 768;
Secor vs. Silver, 165 Iowa 673, 146 N.W. 845).
4. Where the case is submitted on the pleadings, the failure of
the part y to make a reply does not mean that he is
deemed to have controverted the issues raised in the
answer, as this is an exception to the rule
(Falcasantos

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SE C . 11

vs. How Suy Ching, 91 Phil. 456).


5. A part y cannot, in his reply, amend his cause of
action (Calvo vs. Roldan, 76 Phil. 445) nor introduce
the rei n new or additional causes of action (Anaya vs.
Palaroan, L-27930, Nov. 26, 1970).
Sec. 11. Third, (fourth, etc.) - part y complaint.
A thir d (fourth, etc.) - party c o m pl a i n t is a cl ai m
tha t a d e f e n di n g party may, wit h le av e of c our t , file
agai ns t a pe r so n not a par ty to th e ac ti on , calle d
th e t h i r d ( f o u r t h , e tc . ) - par t y d e f e n d a n t , for
c ont r i bu ti on , i n de mni ty , s u br oga ti o n o r an y othe r
relief, in res pe c t of hi s o pp on e nt ' s cl ai m. (12a)
-

..

----

'

J.'.y

...

wj

NOTES
1.A third-part y complaint is similar to a cross-claim in tha t the
t hi rd-pa rt y plaintiff seeks to recover from a not he r person
some relief in re spect to the opposing part y' s claim, but it
differs therefrom in tha t in a cross- claim, the third part y is
already impleaded in the action while in a thi rd-pa rt y
complaint,
said third part y
is not yet impleaded.
Consequently,- in the filing of a third- part y complaint,
leave of court is required as thereafter, if granted,
summ ons will have to be served on the third- part y
defendant.
2.A third-part y complaint need not arise out of or be entirel y
de pe nde nt on the main action as i t suffices tha t the
former be only "in respect of the claim of the thi rd-pa rt y
pl aint iffs opponent. Consequentl y, the judg ment on a
third-part y complaint may become final and executory
without waiting for the final de te rm i na t i on of the main
case (Pascual vs. Bautista, L 21644, May 29, 1970).
3.A third-part y complaint is similar to a complaint
in
intervention (Rule 19) in tha t both result in bringing

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KIND S O F P LEADI NG S

SE C . 11

into the action a third person who was not originally a


party; but they differ in tha t the initiative in a third-part y
complaint is with the person already a part y to the action,
while in inte rve nti on the initiative is with a non-part y
who seek s to join th e action. The de f e n da n t i s not
compelled to bring third parties into the litigation as the
rule simply pe rmit s the inclusion of anyone who meets
the standard set forth therein, in order to avoid multiplicity
of suits (see Balbastro, et al. vs. CA, et al., L-33255
Nov. 29, 1972).
4..

The tests to determine whether the third-part y


complaint is in respect of plaintiff s claim are:
"a. Where it arises out of the same transaction on
which the pl aint iffs claim is based; or whether the thirdparty claim, although arising out of another or different
contract or transact ion, is connected with the plaintiffs
claim;

b. Whether the third-part y defendant would be liable to the


plaintiff or to the defendant for all or part of the plaintiff's
claim against the original defendant, although the thirdpart y defendant ' s liability arises out of anothe r
transaction; and
c. Whether the third-part y defendant may assert any defenses
which the third-part y plaintiff has or may have to the
pl aint iffs claim" (see Capayas vs. CFI of Albay, et al.
77 Phil 181).
Consequentl y, a de fe nda nt may file a thi rd-pa rt y
complaint in the same capacity in which he is being sued
in the original complaint. A plaintiff may also file a thirdparty complaint but also in the same capacity in which he
is sued under a counterclaim.
5. Where the trial court has jurisdiction over the main case,
it also has jurisdiction over the third-part y complaint
regardless of the amount involved as a third- party
complaint is merely auxiliary to and is a continua-

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SE C . 11

tion of the main action (Republic vs. Central Surety &


Insurance Co., et al., L-27802, Oct. 26, 1968; Eastern
Assurance & Surety Corp. vs. Cui, et al., G.R. No. 54452,
July 20, 1981). For the same re ason, wha t is deter
minative of venue are the operative facts in the main case,
and not those alleged in the third-part y complaint.
6. An order disallowing a third-part y complaint is appealable
(Dtr&ioo vei Malagat, L-2413, Aug. 10, 1967) since it would
finally dispose of de fe nda nt ' s ri ght to implead the third
part y.
7. Where a third-part y defendant appealed to the then Court
of First Instance but the third-part y plaintiff (defendant)
did not appeal from the j udgm e nt a ga inst him in favor of
the plaintiff, such judgme nt became exe cutory, without
prejudice to the third-part y defendant' s appeal being given
due course as it pe rtai ns only to the third-part y complaint
(Firestone Tire & Rubber Co. vs. Tempongko, L-24399, Mar. 28,
1969) and such judgm ent on the thi rd-pa rt y complaint is
sepa rate and severable from tha t in the main case.
8..

Where the trial court dismissed the complaint and the


defendants' third-part y complaint and only the plaintiff
appealed, the Court of Appeals, in reversing the judgm ent
dismissing plaintiffs complaint, cannot make a fi nding of
lia bilit y on th e pa r t of th e t h i r d - p a r t y defendants since
the defendants, as third-part y plaintiffs, did not appeal
from the dismissal of their t hi rd-pa rt y c o m pl a i n t an d th
e t h i r d - p a r t y d e f e n da n t s wer e not pa rt ie s in the case
on appeal (Go, et al. vs. CA, et al, L-25393, Oct. 30,
1980).

9. A t hi rd -pa rt y com plai nt ca nnot be filed in a special civil


action for declaratory relief as no material relief is sought
in this action (Comm. of Customs, et al. vs. Cloribel, et
al, L-21036, June 30, 1977).

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SE C S . 12 , 13

Sec . 12. Bringing new parties. W he n th e


pr e se nc e o f par ti e s othe r tha n thos e t o the or i gi nal
acti on i s re qui re d for the gr anti n g of c ompl e t e relief
in th e d e t e r mi n a t i o n of a c o u n t e r c l a i m or c ross clai m, th e cour t shall or de r the m to be br oug h t in
a s d e f e n d a n t s , i f j u r i s d i c t i o n ove r th e m ca n b e
obt a i n e d . (14)
NOT ES
1. For purposes of Sec.
a u t h o r i z e th e filing
to implead the other
complaint (Rubio vs.
1973).
2..

12 of this
of th e prope
pa rtie s not
Mariano, et

Rule, the court ma y


r t h i r d - p a r t y complaint
included in the original
al., L-30403, Jan.
31,

Even where the imple adi ng of the t hi rd-pa rt y


defendants does not fall squarely within the requisites of
Sec. 12, Rule 6 on third-part y complaints, their inclusion
in the action may be permitte d where there is a
question of law or fact common to the right in which
they are interested and anot her right sought to be
enforced in the action, hence their inclusion as proper (now,
necessary) pa rt ie s is justified unde r Sec. 6, Rule 3 of
the Rules (Balbastro, et al. vs. CA, et al., supra).
Sec. 13. Answer to third (fourth, etc.) - party
complaint. A thir d (fourth, etc.) - party de f e n dan t
ma y al l e g e i n hi s a n s w e r hi s d e f e n s e s , c o u n t e r
clai ms or c ross- cl ai ms, i nc l u di n g suc h de fe nse s that
the thir d (four th, etc.) - party plaintiff ma y hav e
ag ai n s t th e or i g i n a l p l a i n t i f f s clai m. I n pr ope r
case s , he ma y als o asse r t a c ou n t e r c l ai m agai ns t
the or i gi nal plainti ff in res pe c t of the latter' s clai m
agai n s t th e thir d- par ty plaintiff, (n)

RULE 7
PARTS OF A PLEADING
S e c t i o n 1. Caption. The ca pti o n set s forth th e
nam e o f th e court, th e title o f th e ac ti on , and th e
doc ke t n u mbe r i f as si gn e d .
Th e ti tle o f th e ac ti o n i n di c a t e s th e na me s o f
th e par ti e s . The y shall all be na me d in th e or i gi nal
c o m p l a i n t o r p e t i t i o n ; bu t i n al l s u b s e q u e n t
p l e a di n g s , i t shall be suffi cient i f th e nam e of th e
fi r s t p a r t y o n e a c h s i d e b e s t a t e d w i t h a n
a p p r o p r i a t e i n d i c a t i o n w h e n t h e r e ar e o t h e r
par ti e s.
Their r e s pe c t i v e par ti c i pat i o n i n th e cas e shall
be i n di c at e d , (l a , 2a)
NOTES
1. As revised, the caption of a pleading in civil cases is no
longer re qui re d to sta t e th e de si gna t i on of the pleading,
since the designation of the pleading
is prop erly
contained in the body thereof (Sec. 2) preceding the
allegations. In criminal cases, i t is required that, when
ever possible, the complaint or information should state
the desi gnation of the offense or the section or subsection
of the st a t ut e punishi ng it (see Sec. 8, Rule 110 and notes
t h e re un de r ) .
2..

I t i s not th e ca pti on of th e pl ea di n g bu t th e
allegations therein that determine the na ture of the action,
and the court shall gra n t the relief w a r ra n t e d by the
allegations and the proof even if no such relief is pra yed for
(Ras vs. Sua, L-23302, Sept. 25, 1968).

3. The abbre viation "et al." for et alii ("and others") or et


alius ("and another") is often affixed to the name of

154

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OF A P L E A D I N G S

SE C . 2

the person first mentioned, where there are more than


one party to the action on either side (see In re Mc-Govern's
Estate, 77 Mont. 182, 250 P. 812; Lyman vs. Milton, 44
Cal. 630).
Sec. 2. The body.The body of the pl e a di n g sets
forth its d e s i g n a t i on , th e al l e ga ti on s of th e party' s
clai ms or de fe n se s, th e relief praye d for, and th e date
of th e pl e a di n g , (n)
(a) Paragraphs. The al l e g ati on s in
th e body of a
p l e a di n g shall be di vi de d into pa r a gr a ph s so
n u mbe r e d as to be rea di ly i de nti fi e d, eac h of w hic h
s h a l l c o n t a i n a s t a t e m e n t o f a s i n g l e se t o f
c i r c u m s t a n c e s s o far a s tha t ca n b e don e w i t h
c o n v e n i e n c e . A par ag r a p h ma y be refer red to by a
nu mbe r in all s u c c e e di n g pl e a di ng s . (3a)
(b)Headings. Whe n tw o or mor e c a u s e s of ac ti on are
j oi ne d , th e s t a t e me n t of th e first shall be prefac e d by
th e w or d s "first c aus e of acti on," of th e sec on d by
"se c on d c aus e of acti on," and so on for the othe r s .
Whe n on e o r mor e pa r a g r a ph s i n th e a n s w e r
are a d dr e s s e d to on e of se ve r a l cau se s of ac ti o n in
the c o mpl a i n t , the y shall be prefac e d by th e w or d s
"answ er to th e first c aus e of ac ti on " or "answ e r to the
se c on d cau s e of ac ti on " and so on; and w he n one
or more par agr a ph s of the answ e r are addres se d to
se ve r al c au s e s of ac ti on, the y shali be prefac e d by
w or d s to tha t effect. (4)
(c)Relief. The pl e adi n g shall specify the relief sought, but
i t ma y add a ge ne r a l pr ayer for suc h fur ther or ot he r
rel ie f as ma y be de e me d jus t or e qui tabl e . (3a, R6).
(d) Date. Eve ry pl e a di n g shall be date d, (n)

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SE C . 3

NOT E S
1. The pra yer in a pleading does not constitute an e sse nt i al par
t of the allegations de te rm i na t i ve of the j u ri sd i c t i o n of a
court . The que st i o n of j u ri sd i c t i o n depends largely upon
the determination of the true nature of the action filed by a
part y which, in turn, involves the consideration of the
ultimate facts alleged as constituti ve of the cause of
action therei n (Bautista vs. Fernandez, L-24062, April 30,
1971). The pra yer for relief, although par t of the
complaint, cannot create a cause of action; hence, it cannot
be considered as a par t of the alle gations on the na ture of
the cause of action (Rosales vs. Reyes, 25 Phil. 495; Cabigao
vs. Lim, 50 Phil. 844).
2. The same rule obtains in a majority of the states in the
American jurisdiction which hold tha t the pra yer or
demand for relief is not part of the st a te m e nt of the cause
of action (Salmons vs. Sun & Bradstreet, 162 S.W. 2d 245;
Central Nebraska Public Power & Irrigation Dist. vs.
Watson, et al., 299 N.W. 609; Durham vs. Rasco, 227 P.
599). The pra yer for relief cannot be considered as adding
to the alle ga tions of the compla int or petit ion (Speizman vs.
Guill, 25 S.E. 2d 731; Coke, et al. vs. Sharks, et al., 291 S.W.
862). The pra yer does not enlarge the cause of action
stated nor does it change the legal effects of what is
alleged (Sandgren vs. West et ux., 115 P. 2d, 724; State vs.
Bonham, et al., 193 S.E. 340). A good pra yer does not
aid a defective pleading (Somers vs. Bank of America, et al.,
187 P. 2d 433; Villani vs. National City Bank of New York,
256 N.Y.S., 602).
Sec . 3. Signature and address. E ve r y p l e a d i n g
m u s t b e s i gn e d b y th e p a r t y o r c o u n s e l r e p r e s e n t i n g
hi m , s t a t i n g i n e i t h e r ca s e hi s a d d r e s s w h i c h s h o u l d
no t be a pos t office box.

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PART S OF A P L E A D I N G

SEC . 3

Th e s i g n a t u r e o f c o u n s e l c o n s t i t u t e s a
certificate by hi m tha t he ha s read th e pl eadi ng, that
to the be st of hi s kn ow l e dg e , i nf or mati on, and belief
the re i s goo d groun d to su ppor t it, and tha t i t i s not
i nte r pose d for del ay.
A n u n s i g n e d p l e a di n g pr od uc e s n o legal effect.
H ow eve r, th e cour t may, in its di sc reti on, allow such
de fi c ie nc y to be r e me di e d i f i t shall appea r tha t the
same wa s du e to me re i na dve r te nce and not inten de d
for d e l a y . C o u n s e l w h o d e l i b e r a t e l y fi l e s a n
un s i g ne d pl e a di n g , or si gn s a pl e a di n g in vi ol ati on
o f thi s R ul e , o r a l l e g e s s c a n d a l o u s o r i n d e c e n t
matte r t he re i n , o r fails t o pr ompt l y report t o th e
court a c h a n g e of hi s a ddr ess , shall be su bje c t to
a ppr opr i a t e d i s c i pl i n a r y ac ti on . (5a)
NOTES
1. The Suprem e Court has further resolved that, in addition to
the re quirem ent that counsel should indicate in all
pleadings, motions and papers submitted by him to judicial
or quasi-judicial bodies his current
Professional Tax
Receipt (PTR) and IBP official receipt or Lifetime Member
Number (Bar Matter No. 287, Sept. 26, 2000), he should further
indicate his Roll of Attorneys Number.
All pl e a di n gs, motions and pa pe rs filed in court,
whether personally or by mail, which do not bear counsel's
Roll of Attorne ys Number 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
5 da y s from not i ce . F a i l u r e to compl y wit h suc h
re quirem ent shall be a ground for further disciplinary
sanction and for contempt of court (Bar Matter No. 1132,
April 1, 2003).
2. It will be noted that this amended section further
specificall y re q u i r e s , unde r pai n of a d m i n i s t r a t i v
e

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COMPENDIU M

SE C . 4

di s c i p l i n a r y ac ti o n or eve n a c i t a t i o n for i nd i re c t
contempt, tha t counsel should promptl y report to the
court where he is appearing in a case any change of his
address. I t is elementary that the requirement to make
of record in the court his address or any change thereof is
to ensure his prompt receipt of judicial orders or processes;
yet, a number of lawyers fail to report such changes in
both the trial and appellate courts resulting in unnecessary
delay in judicial admi nistration. This situation is further
aggravated where even the address of the part y is not
sta t e d in th e pl e a di n gs or i t i s merel y a ve rre d t ha t
processes to said part y may be served on his counsel.
3 . No s u b s t i t u t i o n of a t t o r n e y s will be allowed
unless (a) there is a writ ten request for such substit uti on,
(b)
filed wit h th e wr i t t e n c onse nt of th e clie nt , and
(c) with the written consent of the attorney to be substituted, or
with proof of service of notice of said motion to the att orne y
to be substit ute d. Unless these are complied with, no
subst itution will be permitted and the attorne y who last
appeared in the case before such application will be
responsible for the conduct of the case (Bacarro vs. CA, et
al, L-28203, Jan. 22, 1971, citing U.S. vs. Borromeo,
20 Phil. 189; see Magpayo, et al. vs. CA, et al, L-35966,
Nov. 19, 1974; Sumadchat vs. CA, et al, G.R. No. 52197,
Jan. 30, 1982; Aban vs. Enage, L-30666, Feb. 26, 1983;
Yu, et al. vs. CA, et al, G.R. No. 56766, Feb. 28, 1985).
Sec . 4 . Verification. Exc e p t w he n o t h e r w i s e
s pe c i fic al ly pr ovi de d by law or r ule , p l e a di n g s nee d
no t b e u n de r oat h , v e r i f i e d o r a c c o m p a n i e d b y
affidavit.
A pl e a di n g i s ve ri fi e d by an affi davit tha t the
a f f i a n t ha s r e a d th e p l e a d i n g an d t h a t th e
a l l e g a t i o n s t h e r e i n ar e tr u e an d c o r r e c t o f hi s
pe r s on a l kn ow l e dg e o r base d o n a u t h e n t i c
rec or ds.

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SE C . 4

A plea din g require d t o b e verifie d whic h


c on t a i n s a ver if ic a tio n based on "inf orma tion and
belief," or upon " knowledg e, inf ormation and belief,"
or Jacks a proper verification, shall be t r e a t e d as
an unsigned-pleading. (4 a) (As amended in A.M.
No. 00-2-10SC, effective May 1, 2000)
NOTES
1. The second pa ra gra ph of this section has been further
amended so that the pleader' s affirmation of the truth and
correctness of the allegations in his pleading shall be
based not only on his "knowledge and belief but specifically
on his "pe r sona l knowledge or ba se d on authentic
records." In the 1964 Rules of Court, Sec. 6 of Rule 7
required personal knowledge of the facts averred, which
wa s c on si de re d too st ri c t since a pe rso n can reasonably
affirm a fact based on his belief in its trut h when there is or
has been no other fact or reason contrary thereto.
However, tha t liberalized version is better regulated
by the pre se nt amended provisions that facts should be
attested to on the basis of one's personal knowledge or,
especially with regard to old or vintage facts or events,
by the recitals thereof in aut hent ic records. Verification
is intended to forestall allegations which are perjured or
he arsa y, and this purpose is reasonabl y subserved by
the re quirem ent for authe ntic documents such as official
records which are exceptions to the he arsa y evidence
rule. For the same reason, a verification cannot be made
on facts obtained or arising in whole or in part from mere
information and belief.
2. . Verifi cati on ma y be mad e by th e pa rt y , his
re pr e s e nt a t i ve , lawyer or any person who personall y
knows the trut h of the facts alleged in the pleading. Where
the verification is made by the attorne y who also signed

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SE C . 4

the pleadings, the courts are inclined to be liberal and


accept substantial compliance with the verification rule
(Arambulo vs. Perez, 78Phil. 387;Matel vs. Rosal, 96Phil.
984 fUnrep.J; Cajefe vs. Fernandez, etc., et al, 109 Phil.
743). Thus, where a petition for ma ndam u s was verified
by the counsel to be true "to the best of (his) knowledge,
information and belief," it was held to be sufficient in
view of the sanctions respecting attorne ys in Sec. 5 (now,
Sec. 3) of this Rule (Guerra Enterprises, Co., Inc. vs. CFI
of Lanao del Sur, et al, L-28310, April 17, 1970).
On the ot he r ha nd , a ce rtificati on a ga i ns t forum
shoppi ng (Sec. 5 ) mus t be mad e by th e pa rt y himself
and not by his lawyer (Santos, et al. vs. CA, et al, G.R.
No. 141947, July 3, 2001).
3. As a rule, pleadings need not be verified unless so
requi red by the Rules and j ur i s pr ud e nc e , as in the
following instances:
a.

Petition for relief from jud gm e nt or order (Sec. 3, Rule

38);

b. Petition for review from the Regional Trial Courts to the


Court of Appeals (Sec. 1, Rule 42);
c.

Petition for review from the quasi-judicial agencies


Court of Appeals (Sec. 5, Rule 43);

to the

d. Appe a l by c e r t i o r a r i from th e Cour t of Tax Appe a l s to


th e S u p r e m e Cour t (Sec. 12, R.A. 9282 , ame ndi ng Sec. 19,
R.A. 1125);
e.

Appeal by certiorari from the Court of Appeals to the


Suprem e Court (Sec. 1, Rule 45);

f. Pe t it i o n for a n n u l m e n t of j u d gm e n t s or final orders


resolutions (Sec. 1, Rule 47);
g. Complaint for injunction

and

(Sec. 4, Rule 58);

h. Application for appoi ntme nt of receiver (Sec. 1, Rule

59);

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i.

PART S OF A P L E A D I N G

SE C . 4

Appli cati on for suppor t pendente lite (Sec. 1, Rule

69);

j . Pet i ti on for c e rt i ora ri a ga i ns t the j ud gm e nt s ,


final orders or resolutions of constitutional commissions
(Sec. 2, Rule 64);
k.

Petition for certiorari (Sec. 1, Rule 65);

1.

Petition for prohibition (Sec. 2, Rule 65);


m.

Petition for ma ndam us

(Sec.

3, Rule 65);

n.

Petition for quo wa rra nt o (Sec. 1, Rule 66);

o.

Complaint for expropriation (Sec. 1, Rule 67);

p. Complaint for forcible entry or unlawful detainer


(Sec. 4, Rule 70);
q.

Petition for indirect contempt (Sec. 4, Rule 71);

r. Petition for appoi ntme nt of a general gua rdian


(Sec. 2, Rule 93);
s. Petition for leave to sell or encumber property of the ward by
a gua rdian (Sec. 1, Rule 95);
t. Petition for the declaration of competenc y of a
ward (Sec. 1, Rule 97);
u.

Petition for habeas corpus (Sec. 3, Rule 102);


v.

Petition for change of name (Sec. 2, Rule 103);

w. Petiti on for volunta ry judicial dissolution of a corporation


(Sec. 1, Rule 104); and
x. Petition for cancellation or correction of entries in the civil
registry (Sec. 1, Rule 108).
4.While not required to be verified in the manner and form
prescribed by Sec. 4 of this Rule, the following must be
under oath:
a. Denial of the genuineness and due execution of an
actionable document (Sec. 8, Rule 8);
b. Denial of allegations of usury (Sec. 11, Rule 8);

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c.Motion to set aside a default order (Sec. 3[bJ, Rule 9).


d. Answer to written interrogatories (Sec. 2, Rule 25);
an d e. Answer to request for admission (Sec. 2, Rule 26).
5. Supporting affidavits
required in the following:

or

affidavits

of

merits are

a. Motion to po st po n e for a bs e n c e of e vi de nc e
(Sec. 3, Rule 30);
b. Motion to postpone for illness of a pa rt y or counsel
(Sec. 4, Rule 30);
c. Motion for s u m m a r y j u d gm e n t or opposit i on theret o (Secs.
1, 2, 3 and 5, Rule 35);
d. Motion for new tria l on th e groun d of fraud,
accident, mistake or excusable negligence or opposition
the reto (Sec. 2, Rule 37);
e. Petition for relief from jud gm e nt or order (Sec. 3, Rule
f.

38);

Third-part y claim (See. 16, Rule 39);

g. Proo f r e q u i r e d of a r e d e m p t i o n e r (Sec. 30, Rule

39);

h. Mot i o n for p r e l i m i n a r y a t t a c h m e n t (Sec. 3 , Rule


i. Motion for dissolution
(Sec. 6, Rule 58);
j.

57);

of preliminary injunction

Application for a writ of replevin (Sec. 2, Rule 60);

k. Claim a ga i nst the e state of a decedent (Sec. 9, Rule 86);


and
1. Motion for new trial on the ground of newly- discovered
evidence in criminal cases (Sec. 4, Rule 121).
6.Even where verification is required by the Rules, the court
may give due course to the pl eadi ng even if

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SE C . 5

such verification is lacking or is insufficient or defective


if the circumstances warrant the relaxation or dispensing
of the rule in the interest of justice (Oshita vs. Republic, L21180, Mar. 31, 1967; cf. Quimpo vs. Dela Victoria, L
31822, July 31, 1972; Valino vs. Munoz, et al., L-26151, Oct.
22, 1970; Villasanta, et al. vs. Bautista, et al., L-30874,
Nov. 26, 1970). Verification of a pleading is a formal, not a
jurisdictional, requisite (Buenaventura vs. Uy, et al., L28156, Mar. 31, 1987). It is simply intended to secure an
assurance that the allegations are true and correct and
that the pleading is filed in good faith (Bank of the Phil.
Islands vs. CA, et al., G.R. No. 146923, April 30, 2003).
Hence, in the interest of substantial justice, the Court
may simply order the correction of the unverified pleading
or act on it and waive strict compliance with the rules (Vda.
de Gabriel vs. CA, et al., G.R. No. 103883, Nov. 14, 1996;
Panaguiton, Jr. vs. Dept. of
Justice, et al., G.R. No. 167571, Nov. 25, 2008).
7. Pleadings filed in the inferior courts in cases covered by the
Rule on Summary Procedure are all re quired to be
verified (Sec. 2[BJ on Civil Cases).
Sec . 6. Certification against forum shopping. The
plaintiff or pr i nc i pa l party shall certify un de r oath
i n th e c o m p l a i n t o r o t h e r i n i t i a t o r y p l e a d i n g
a s s e r t i n g a c l a i m fo r r e l i e f , or in a s w o r n
c er ti fic ati on a n n e xe d th e r et o and si mul ta n e ous l y
filed t h e r e w i t h : (a) tha t h e ha s no t t h e r e t of o r e
c o m me n c e d an y ac ti o n or filed an y cl ai m i nv ol v i n g
th e sa m e i s s u e s i n an y c our t , tr i bu na l o r qua si ju di c i al age nc y and , to the best of his kn ow l e dg e ,
no suc h othe r ac ti o n or cl ai m i s pe n di n g
the rei n;
(b) i f the r e is suc h other pe n di n g acti on or clai m, a
c ompl e t e s t a t e me n t of th e pr ese n t status thereof;
and (c) i f he shoul d the reafte r learn that the same
o r s i mi l a r a c t i o n o r c l ai m ha s be e n fi le d o r i s
pe ndi ng, he shall report that fact within five (5) days

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t h e r e f r o m t o th e c o u r t w h e r e i n hi s a f o r e s a i d
c ompl ai n t or i nitiatory pl e a di n g ha s bee n filed.
F ail ure t o c ompl y wit h th e f oregoi ng requi re
me n t s shall not be cur abl e by mer e a me n d me n t of
the c ompl ai n t or ot he r i ni ti ator y pl e a di n g but shall
b e c a u s e for th e d i s m i s s a l o f th e c as e w i t h o u t
prej udi ce , unl e s s o t h e r w i s e pr ovi de d , upo n moti o n
an d afte r h e a r i n g . Th e s u b m i s s i o n o f a fal s e
c e r t i f i c a t i o n o r n o n - c o m p l i a n c e w i t h an y o f th e
u n d e r t a k i n g s t h e r e i n shal l c o n s t i t u t e i n d i r e c t
c o n t e m p t o f c o u r t , w i t h o u t p r e j u d i c e t o th e
c or r e s p o n di n g a d mi n i s tr ati v e and cr i mi nal ac ti ons .
I f th e ac t s o f th e par t y o r hi s c o u n s e l c l e a r l y
c o n s t i t u t e w ill ful an d de l i be r at e for u m s h o p p i n g ,
the same shall be groun d for su mmar y di s mi ssal wit h
pr e j u di c e an d shall c on s t i t u t e di rec t c on t e mp t , a s
wel l as a cau s e for a d mi n i s t r a t i v e s a n c t i on s , (n)
NO TES
1. . The Supre m e Court has explained tha t the re is forum
shopping when, as a result of an adverse decision in one
forum, or in anticipation thereof, a part y seeks a favorable
opinion in a not he r forum through mea ns other tha n
appeal or certiorari by raising identical causes of
action, subject -matt er and issues. 'Tor u m shopping exists
when two or more actions involve the same transact ions,
e sse nt ia l facts and c i rc um st a nc e s, and raise identical
causes of action, s ub j e c t -m a t t e r and i ssue s. Anot he r
indication is whe n the e le m e nt s of litis pendentia are
p r e s e n t or whe r e a final j u d g m e n t in one case will
a m oun t to res judicata in the other case. The test is
whe t he r in the two or more pending cases there is identit y
of parties, rights or causes of action and reliefs sought
(Ligon vs. CA, et al, G.R. No. 127683, Aug. 7, 1998; cf.
Melo, et al. vs. CA, et al, G.R. No. 123686, Nov. 16, 1999).

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Fo ru m s ho pp i n g i s c o n d e m ne d be c a u s e i t duly
burdens courts with heavy caseloads, undul y taxes the
manpower and financial resources of the judiciary, and
trifles with and mocks judicial processes. The primary evil
sought to be prescribed by the prohibition against forum
shopping, however, is the possibility of conflicting decisions
being rende red by the different courts upon the same
issues (Guy vs. CA, et al., G.R. No. 165849, Dec. 10, 2007,
and companion cases).
2. This
section,
with
modifications,
is ta ken
from
Administrati ve Circular No. 04-94 issued by the Supreme
Court on Fe brua r y 8, 1994 for the purpose explained
therein:
"Revised Circular No. 28-91, dated February 8,
1994 applies to and governs the filing of petitions in
the Supreme Court and the Court of Appeals and is
intended to pre vent the multiple filing of petitions or
c o m p l a i n t s i n vo l vi n g th e sam e i ssue s i n ot he r
tribunal s or agencies as a form of forum shopping.
"C omplementary thereto and for the same pur
pose, the following requi reme nts, in addition to those
in pe r t i ne n t provisions of the Rules of Court and
existing circulars, shall be strictly complied with in
the filing of complaints, petitions, applications or
other initiatory pleadings in all courts and agencies
ot he r tha n the Suprem e Court and the Court of
Appeals and shall be subject to the sanctions provided
hereunder."
The provisions of Revised Circular No. 28-91 have
been adopted and incorporated in Rules 42, 43, 45, 46,
47, 64 and 65.
3..

The Supreme Court has advanced the rule that


compulsory counterc laim s are not contemplate d in its
Administrative Circular No. 04-94 which refers to initiatory
and similar pleadings. A compulsory counterclaim set up
16B

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SE C . 5

in the answers should not be considered as an initiatory


or similar pleading since the defendant ha s to raise a
compulsory counterc laim wher e proper, ot he rwi se he
waives the same. The rationale is tha t the compulsory
counterclaim is only a reaction or response, ma ndat or y
under pain of waiver, to an initiatory pleading which is
the complaint (Cruz-Agana vs. Santiago-Logman, etc., et
al., G.R. No. 139018, April 11, 2005). There are American
doctrines, however, holding that any counterclaim is in the
nature of a counter-complaint or cross-petition; hence, under
that theory it is actually initiatory of a claim for relief discrete
from the adverse party's claim.
4. .

Aside from some a m e n d m e n t s


to th e ori gi nal
sanctions imposed in Admi ni st rati ve Circular No. 04-94,
this section re iterates as a re gular requi reme nt under the
Rules tha t the certification against forum shopping may be
incorporated in the complaint or contained in a sworn
certification a nne xe d the ret o and si m ult a ne ousl y filed
the re wit h. This enunciate s the policy of the Suprem e
Cour t e x p r e s s e d as ea rl y as Ci rc ul a r No. 1-88 tha t
su bs e q ue n t compliance with the re qu i re m e nt s for
the filing of petitions or motions is not a ground for
reconsi de rat i on of the dismi ssal of said pl eadi ngs,
except for compelling reasons. In light hereof, the view tha
t belated filing of the certification may be deemed a
subst a nt i al compliance should no longer be sust ained.
With re spe c t to th e c o nt e nt s of th e c e rt i fic a ti on
which the pleader may pre pa re, the rule of substa ntial
compliance may be availed of. While this section requires
tha t it be strictly complied with, it merely underscores
its m a n d a t o r y na t u r e in tha t i t c a nno t be a l t o ge t he r
dispensed with or its requi reme nts completely disregarded
but i t does not thereby pre vent subst ant ial compliance on
this aspect of its provisions under justifiable circumstances
(see Gabionza vs. CA, et al., G.R. No. 112547, July 18,
1994). Thi s c e r t i f i c a t i o n on n o n - f o r u m s h o p p i n g
wa s de s i gn e d t o p rom ot e an d fa c il i ta t e th e orde rl
y

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a dmi ni st rat i on of justice and, therefore, should


interpreted with absolute literalness (Loyola vs.
al., G.R. No. 117186, June 29, 1995; Maricalum
Corp. vs. NLRC, et al, G.R. No. 124711, Nou. 3,
RLC Construction and Deu. Corp., et al. us. Emily
etc., et al., G.R. No. 139360, Sept. 23, 2003).

SE C . 5

not be
CA, et
Mining
1998;
Homes,

More importantl y, this section specifically states that


the "(f)ailure to comply with the foregoing re quirem ent s
shall not be curable by mere ame ndme nt 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 hea ring." This will
obviate the former practice of some trial courts in allowing
amendment of the incomplete pleading for the incorpo
ration therein of the certificate against forum shopping.
Tha t was e r r o n e o u s since thi s u n d e r t a k i n g a ga i n s t
multiple filing of cases is not part of the operative facts
required to be alleged in an initiatory pleading, such as
allegations on the cause of action. It is a special require
ment for admission of the initiatory pleading for filing in
court, hence the absence thereof is not curable by mere
amendment.
Instead, the case shall be dismissed on motion but,
just like the practice under Revised Circular No. 28-91 in
the appellate court s, such dismissal shall be wit hout
prejudice. This more liberal rule is distinguishable from
the effects of dismissal of the case for non-compliance
with the Rules under the provisions of Sec. 3, Rule 17
which presupposes the pendenc y of the case, where as
what is contemplated in this section is the initiation of
the case. The case may consequently be refiled within
the balance of the re glem enta ry period but subject to
the provisions on prescription of actions.
5. In appl ying the forerunner of this section, the Su pr e m e
C ourt , in th e case of Fil-Estate Golf and Development, Inc.
vs. CA, et al. (G.R. No. 120958 , Dec. 16, 1996),
ruled as follows:

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"As clearly demonstrated above, the willful attempt


by pri va t e re s p o n d e n t s to obt ain a p re l i m i n a r y
injunction in another court after it failed to acquire
the same from the original court constitutes grave
abuse of the judicial process. Such disre spect is
penalized by the summar y dismissal of both actions
as mandate d by pa ra gra ph 17 of the Interim Rules
and Guidelines issued by this Court on 11 J anua r y
1983 and Supreme Court Circular No. 28-91. x x x.
X

The rul e a ga i n s t fo rum -s ho pp i n g i s f urt he r


s t r e n gt h e n e d by the i ssua nc e of S u p r e m e Court
Ci rc ular No. 04-94. Said circ ula r formally esta
blished the rule tha t the deliberate filing of multiple
c om pl a i nt s to obtain favorable action c o ns t i t ut e s
forum-shopping and shall be a ground for summ a r y
dismissal thereof."
6. As earlier stated, with respect to the contents of th e
c e rt i fic a ti on of non-forum shoppi ng, th e rule of
subst ant ial compliance may be invoked under justifiable
c i r c u m s t a n c e s . Ho we ve r , i t i s m a n d a t o r y tha t th e
certification be executed by the petitioner himself, and
not by counsel. Obviously, it is the petitioner, and not
the counsel retained for a particular case, who is in the
best position to personally know whet he r he or it had
actually filed or caused the filing of anot her or previous
petition involving the same case or substa ntial l y the same
i ssue s. Hence, a certification exec ute d by counsel is
defective and constitutes a valid cause for dismissal of
the petition (Far Eastern Shipping Co. us. CA, et a I., G.R.
No. 130068, and Manila Pilots Association vs. Phil. Ports
Authority, et al., G.R. No. 130150, jointl y decided on
Oct. 1, 1998; cf. Commissioner of Internal Revenue vs.
S.C. Johnson & Son, Inc., et al., G.R. No. 127105,
June 25, 1999; Mendigorin us. Cabantog, etc., G.R.
No. 136449, Aug. 22, 2002).

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SEC .

7. . On th e fore going p re m i se s , whe r e ther e are several


petit ioners, it is not sufficient that only one of them
executes the certification, absent a showing that he was
so authorized by the others. That certification requires
personal knowledge and it cannot be presumed that the
signatory knew that his co-petitioners had the same or
similar actions filed or pending (Loquias, et al. vs. Office of
the Ombudsman, et al., G.R. No. 139396, Aug. 15, 2000).
Where, however, the co-petitioners are husba n d and wife
with joint int e re s t in the subject matter of the case
which is their conjugal property, the husba nd alone as
a dm i ni s t r a t o r of said prope rt y
can execute
the
certification (Docena, et al. vs. Lapesura, etc., et al., G.R.
No. NO 153, Mar. 28, 2001).
Also, where all the
pe t it i one rs, being re l at i ve s and co-owners of the
properties in dispute, share a common interest therein
and a common defense in the action, one of them alone can
execute the certificate of non-forum shopping (Cavile,
et al. vs. Cavile, et al., G.R. No. 148635, April 1, 2003).
8. This re quirem ent is intended to apply to both natural and
juridical persons. Where the petitioner is a corporation,
the certification a ga i nst forum shopping should be signed
by its dul y a u t h ori ze d director or re pre se nt a ti ve . The
same is true with respect to any juri dic a l e nti t y since i t
has of necessit y the proper officer to re present it in its
other transact ions (Digital Microwave Corp. vs. CA, et al, G.R.
No. 128550, Mar. 16, 2000). In National Steel Corp. vs.
CA, et al. (G.R. No. 134468 , Aug. 29 , 2002), the rule
was li bera ll y applied pro hoc vice "in view of the peculiar
circumstances of the case and in the interest of
substantial justice."
However, in BA Savings Bank vs. Sia, et al. (G.R.
No. 131214 , Jul y 27 , 2000), i t was held tha t th e
certification of non-forum shopping may be signed, for and
on behalf of a corporation, by a specifically authorized
lawyer who has personal knowledge of the facts required
to be disclosed in such document. This does not mean,
169

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though, that any lawyer representing the corporation may


routinely sign tha t certification. That lawyer must be
specifically auOwrized in order to validly sign the same.
Further, while said counsel may be the counsel of record;
there must be a resolution of the board of directors that
specifically authorizes him to file the action and execute
the certification (BPI Leasing Corp. vs. CA, et al., G.R.
No. 127624, Nov. 18, 2003).
9. If a case is dismissed without prejudice because of the filing
by the plaintiff of a notice or dismissal before the service of
the answer or responsive pleading pursua n t to Sec. 1, Rule
17, the subsequent refiling of the case by the same part y
will not require a certification of non-forum shopping setting
forth such antecedent facts.
As already stated, forum shopping is resorted to by a
part y with a case in one forum in order to possibly secure
a favorable j udgm e nt in a not he r forum, other tha n by
appeal or certiorari, or the instit uti on of two or more
a c t i on s o r p r o c e e d i n g s o n th e sa m e c a us e , o n th e
supposition tha t one or the other court would make a
favorable dispositi on. Since a part y re sort s to forum
shopping to improve his chances of obtaining a favorable
decision, that prohibition could not apply to a situation
contem plat ed in Sec. 1, Rule 17. There is no adve rse
decision against the plaintiff and the order of dismissal
merely confirms the dismissal of the complaint without
prejudice. The apprehe nsion that the case was dismissed
in order to be transferred to the sala of anot he r judge
supposedl y more sympathetic to the plaintiff is baseless
and speculati ve (Roxas vs. CA, et al., G.R. No. 139337,
Aug. 15, 2001).
10. This section provides for the m at t e rs that should be
contained in the certification agai nst forum shopping in
the c o m pl a i n t or i nit i at or y pl e a di n g s filed in the
Regional Trial Court. Sec. 3 , Rule 46 pre sc ri be s the

requ ire men ts for a certification against forum shopping


in pe titions filed in the Court of Appeals, which

have

also

been adopted for petitions filed in the Supreme Court,


p u r s u a n t to Sec. 2, Rule 56.

11. . As a goneral^cule-, th e violation of the rule-on foru m


s h o p i H i g ohoul a ~be - ra i s e d a t -the ear*liest
opportunity^ e ue h-s *R - a-motion

to

dismiss

or a simila r

pleading. It should be noted that Sec. 1, Rule 9 provides that


defenses and objections not pleaded in a motion to dismiss
or in an answer are deemed waived. Also, Sec. 8, Rule 15
s t a t e s t ha t , subject to the provisions of said Sec.
1,
Rule 9, a motion a t t a c k i n g a pleadi ng, order, j udgment
or proceeding
shall include all objections then available,

and all objections not so included are deemed waived.


Thus, -belatedly raising- an-objection due to forum
shopping at the-appellate stage will not cause the dismissal
of the appeal, except whe r e the court has no jurisdiction

over the subject m a t t e r , or where litis pendentia, res


judicata or bar by sta tute of limitations are present (Young
vs. Seng, etc., G.R. No. 143464, Mar. 5, 2003).
12. The doctrine of forum non conveniens literally means "the
forum is inconvenient," and emerged in private
i nte rna ti ona l law to deter the practice of global forum
shopping,

tha t is, to pre vent nonr eside nt litigants

from

choosing the forum or place to bring their suit for malicious


reasons, to secure procedural adva nta ge s,

or

to

select

more friendly venue. The court, may, however, refuse


impositions on its jurisdiction where it is not the most
convenient forum and the part ies are not

precluded

from

seeking remedies elsewhere.


Whether a suit should be entertained or dismissed
under this doctrine depe nds largely on the facts of the

particular case and is addressed to the sound discretion of


the

tria l c ourt.

The S u p re me Court has

171

held

tha t a

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Philippine court may assume jurisdiction over a conflict


of laws case, if it chooses to do so, provided that it is one to
which the parties may conveniently resort, that it is in a
position to make an intelligent decision on the law and
the facts, and that it has or is likely to have the power to
enforce its decision. However, while it has the discretion
to abstain from assuming jurisdiction under the doctrine,
it should do so only after vital facts are established to
de t e rm i n e whet he r special c i rc um st a nc e s re qui re the
court's desistance.
Since this doctrine requires such a factual determi
nation, it is more properly considered a matt er of defense.
It should not be used as a ground for a motion to dismiss,
and, in fact, Rule 16 does not include said doctrine as a
ground. In any event, such a claim of global forum
s h o p p i n g shoul d r e q u i r e t h a t all e l e m e n t s of litis
pendentia are present and a final judgm ent in one case
will amount to res judicata in the other (Bank of America
NT & SA, et. al. vs. CA, et al., G.R. No. 120435,
Mar. 31, 2003). Apropos thereto, this equitable doctrine
presupposes at least two forums in which the defendant is
a me na bl e to process and furni shes crite ria for choice
be t wee n such forums (Wilson vs. Seas Shipping Co.,
D.C.Pa., 78 F. Supp. 464).

RU L E 8
MANNER OF MAKING ALLEGATIONS
IN P L EA D I N G S
S e c t i o n 1. In general. E ve r y pl e a di n g shal l
c ontai n in a me t h odi c a l and l ogic al form, a plain,
c onc i se and di r e ot- e te te tn e n t of the ul ti mat e facts
on wh i c h the party pl e a di n g re l ie s for hi s cl ai m or
de f e n se , a s the cas e may be, omi tti n g th e s ta te me n t
of me r e e vi de n ti ar y facts. (1)
h i a d e f e n s e r e l i e d o n i s ba se d o n law , th e
pe r ti ne n t pr ov i si on s t he re o f an d their a ppl i c abi l i ty
to hi m s ha l l be< cl e ar l y and c on c i s e l y state d, (n)
NOTES
1. . As al rea d y s t a t e d , a nn e xe s to..pleadings, -are
considered part of the pleadings, but the said pleadings
mus t c o n t a i n - a s u m m a r y s t a t e m e n t o f th e m a t t e r s
contained in the annex and cannot just refer to the same
(Rubios, et al. vs. Reolo, 96 Phil. 984fUnrep.J; La Mallorca
vs. CA, et al, 100 Phil. 1048; see Sec. 7 of this Rule).
2."Ultimate facte" are the important and substan tial facts
which ei t he r directly form the basis of the plaintiff's
primary right and duty or directly make up the
wrongful acts or omissions of the defendant (Alsua us.
Johnson, 21 Phil. 308). A fact is essential if it cannot be
st ric ken out wit hout leaving the st a t e m e n t of the cause
of action or defense insufficient (Toribio, et al. vs. Bid in,
etc., et al, G.R. No. 57821, Jan. 17, 1985). Hence, conclusions,
inferences, pre sum pti ons, and details of probative
matte rs should not be alleged.
. <t\-

3.

"Evidentiary facts" are those which are necessary to prove


the ultimate fact or which furnish evidence of the
existence of some other facts. They are not proper as

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SE C S . 2- 3

allegations in the pleadings as they may only result in


confusing the s t a t e m e n t of the cause of action or the
defense. They are not nece ssar y therefor, and thei r
exposition is actually pre ma t ure as such facts must be
found and drawn from testimonial and other evidence.
4. The second pa ra gra ph is a new provision and is in line
with the rule tha t a pa rt y mus t set out with clarity
right in his pleading the ma tt e rs upon which he intends to
rely for his defense. It has been a matte r of judicial
experience tha t often a defense is post ul at e d supposedly
upon certain provisions of law and,
with such bare
allegation, the pleader leaves i t to the court and the
opposing part y to divine for themselves how said legal
provisions or principles could possibly apply or relate to
the nat ure of the defense invoked, a strategy made more
irksome and undesirable where several defenses and legal
pro vi si ons ar e invoked. The ra t i o na l e for thi s new
re quirem ent where the defense is based on legal grounds
is the same as the re quirem ent for sta ting the ultimate
facts where the defense is based on factual grounds.
Sec . 2. Alternative causes of action or defenses.
A p a r t y ma y se t fort h tw o or m or e s t a t e m e n t s of a
clai m o r de fe ns e a l t e r n a t i ve l y o r h yp o t h e t i c a l l y ,
e i t h e r i n on e c a u s e o f a c t i o n o r d e f e n s e o r i n
s e p a r a t e c a u s e s o f a c t i o n o r d e f e n s e s . W he n tw o
o r m or e s t a t e m e n t s ar e m a d e i n th e a l t e r n a t i v e an d
on e o f t h e m i f m a d e i n d e p e n d e n t l y w o u l d b e
s uffi c i e nt , th e p l e a d i n g i s no t m a d e i n s u f fi c i e n t b
y th e i n s u ffi c i e nc y o f on e o r m o r e o f th e a l t e r n a t i v e
s t a t e m e n t s . (2)
Sec . 3. Conditions precedent. In an y p l e a d i n g
a g e n e r a l a v e r m e n t o f th e p e r f o r m a n c e o r o c c u r
re n c e o f all c o n d i t i o n s p r e c e d e n t shal l b e suffi ci e nt .
(3)

174

RULE 8

MANNER OF MAKING ALLEGATIONS SECS 4


5 IN PLEADINGS

Sec. 4. Capacity. Facts sh ow i n g the c apac i ty


of a party to su e or be sue d or the auth or i ty of a
party to sue or be sue d in a re pr e se nt at i v e c apac i ty
or the legal e xi s te nc e of an or ga niz e d assoc i ati on
of pe r s on s that is mad e a party, mus t be ave rred.
A party de s i r i n g to raise an issue as to the legal
e xi s te nc e of any party or the ca pac i ty of any party
to sue or be sue d in a re pr e se nt at i v e capaci ty, shall
do so by speci fic de ni al , whic h shall i nc l ude suc h
s u p por ti n g par ti c ul ar s as are pe culi arly w ithi n the
pleader' s kn ow l e dge . (4)
NOTE
1. Where the plaintiffs are foreign corporations,
the specific circumstance that they are duly licensed to do
business in the Philippines, or that the transaction sued
upon is singular and isolated, is an essential part of the
element of the plaintiff' s capacity to sue and must be
affirmatively pleaded as required by Sec. 4 of this Rule
(Atlantic Mutual Insurance Co. us.
Cebu Stevedoring
Co., Inc., L-18961, Aug. 31, 1966).
Sec. 5. Fraud, mistake, condition of the mind. In
all ave r me nt s of fraud-or mi sta ke, the ci rcu msta nc e s
c on s ti tu ti n g fraud or mi sta ke nauet be staged with
par ti c u l ar i ty. Malice , i nte nt, kn ow l e dg e or othe r
c on di ti on of the mind of a person may be ave r re d
gener ally. (5a)
NOTE
1. Fa ct s c on st i t ut i n g condition of the mind are
permitted to be averred generally as it would be difficult
to do so with particularit y. However, fraud and mistake
are required to be averred with particularit y in order to
enable the opposing party to controvert the particular
facta allegedly constituting the same. This requirement

RULE 8

REMEDIAL LAW COMPENDIUM

SECS. 6. 7-8

a s s u m e s s i gn i f i c a n c e in m o t i o n s for new t ria l or


petit ions for relief from j u d gm e n t or order based on
fraud or mistake.
Sec . 6. Judgment. In p l e a d i n g a j u d g m e n t or
d e c i s i o n of a d o m e s t i c or fore i g n c ou rt , j u d i c i a l or
q u a s i - j u d i c i a l t r i b u n a l , or of a boa r d or officer, i t i s
s uffi c i e n t t o a ve r th e j u d g m e n t o r d e c i s i o n w i t h o u t
s e t t i n g fort h m a t t e r s h o w i n g j u r i s d i c t i o n t o r e n d e r
it. (6)
NOTE
1. This provision is a necessary consequence of the
disputable presumption that a court, or judge acting as
such, w h e t h e r in th e P hi l i p pi ne s or e l s e w h e r e , wa s
acting in the lawful exercise of his jurisdiction (Sec. 3(n],
Rule 131). Such judicial record may be impeached by
evidence of want of jurisdiction in the court or judicial
officer (Sec. 29, Rule 132).
Sec . 7. Action or defense based on document.
W h e n e ve r a n actio n o r defens e i s base d upo n a
w r i t t e n i n s t r u m e n t o r d o c u m e n t , th e s u b s t a n c e o f
suc h i n s t r u m e n t o r d o c u m e n t sha l l b e se t fort h i n
th e p l e a d i n g , an d th e o ri gi n a l o r a cop y t h e r e o f shal
l b e a t t a c h e d t o th e p l e a d i n g a s a n e x h i b i t , w h i c h
shal l b e d e e m e d t o b e a pa r t o f th e p l e a d i n g , o r sai d
copy ma y wit h like effect b e se t forth i n th e p l e a d i n g .
(7)
Sec . 8. How to contest such documents. W h e r e
a n actio n o r defens e i s founde d upo n a wri t te n
i n s t r u m e n t , c o p i e d i n o r a t t a c h e d t o th e
c o r r e s p o n d i n g p l e a d i n g a s p r o v i d e d i n th e
p r e c e d i n g s e c t i o n , th e g e n u i n e n e s s an d du e
e x e c u t i o n o f th e i n s t r u m e n t shal l b e d e e m e d

176

RULE 8

MANNER OF MAKING ALLEGATIONS


8 IN PLEADINGS

SECS. 7-

a d mi t t e d n U M , t a ad^CTuu pai t y + - w d e r - ^ t h ,
s pe c i fi c al l y de-mee-tfcero, an d uviv furUi w4mt he
clai ms to Ofi-the ~faets;^but the r e qu i r e me n t of an
oath doe s not apply whe n the adver se party doe s
not a ppe a r to be a party to the i n st r u me n t or w he n
c o mpl i an c e wit h an or der for an i n s pe c ti o n of the
or iginal i n s t r u me n t i s refuse d. (8a)
NOT E S
1. These two sections constitute the rule on action able
d o c u m e n t s , as d i s t i n gu i s h e d from e vi d e nt i a r y
documents. There are two permissible ways of pleading
an actionable doc ume nt, i.e., (a) by set t i ng forth the
s u b s t a n c e of suc h d o c u m e n t i n th e p l e a d i n g an d
attaching the document the reto as an annex, or (b) by
setting forth said document verbatim in the pleading.
Unless alleged in any of these modes, the rule on implied
admission in Sec. 8 will not apply.
2. A variance in the substance of the document set forth in
pleading and the document annexed thereto does
w a r ra n t the dismissal of the action (Convets, Inc.
National Deuelopment Co., 103 Phil 46). However,
contents of the document annexed are controlling.

the
not
us.
the

3. . Whe r e th e a c t i on a bl e d oc u m e n t i s prope rl y
alleged, the failure to deny the same re sul t s in the
admission of the "genuineness and due execution" of said
document, except (a) when the adverse party was not a
party to the instrument, and (b) when an order for the
inspection of the document (see Rule 27) was not complied
with.
4. By "genuiwcncoo" is meant that the document is not
spurious, counterfeit, or of different import on its face
from the one execut ed hy the part y (Bough us. Cantiveros, 40
Phil. 208), or that the party whose sig nature it bears has
signed it and that at the time it was

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R E M E D I A L LAW

COMPENDIU M

S E C S . 7- 8

signed, it was in words and figures exactly as set out in


the pleadings (Hibberd vs. Rhode, 32 Phil. 476).
5. By "due-execution" is meant that the document was signed
voluntaril y and knowingly by the part y whose si gnat ure
appea rs thereon, that if signed by somebody else such
re presenta ti ve had the authorit y to do so, that i t was duly
de li ve re d, and tha t the forma litie s were complied with
(see Hibberd vs. Rhode, supra; Ramirez vs. Orientalist Co.,
et al., 38 Phil. 634).
6. By the admissi on of the ge nui ne ne ss and due execution of a
document, such defenses as that the sig na ture was a
forgery; or that it was unauthori ze d in the case of an
agent signing in behalf of a partne rshi p or of a
c orporat i on; or t hat , in the case of th e la tt e r , the
corporation was not authorized under its cha rter to sign
the i n st ru m e nt ; or tha t the pa rt y charge d si gned the
i nst rume nt in some other capacity tha n that alleged in
the pleading setting it out; or that it was never delivered,
are deemed cut off. But the failure to deny the genuine
ness and due execution of the document does not estop
a part y from controverting it by evidence of fraud, mistake,
compromise, pa yment, stat ute of limitations, estoppel, and
want of consideration (1 Martin 301, citing Hibberd vs.
Rhode, supra, and Bough vs. Cantiveros, supra).
7.. Even where the opposing pa rt y failed to deny unde r
oath the a u t he nt i c i t y
and due execut ion of an
actionable document properly alleged, he can still raise the
defense in his a nswe r and prove at the trial tha t there
is a mistake or imperfection in the writing, or tha t it does
not express the true agre eme nt of the parties, or that the
a greem ent is invalid or that there is an intrinsic
ambiguit y in the writing, as these exceptions to the parol
evidence rule (Sec. 9, Rule 130) are not cut off by, since
they are not inconsistent with, the implied admission of the
authe ntici t y and due execution of the inst rum e nt .

178

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M A N N E R OF MA KI N G A L L E G A TI O N S
9 I N PLEADING S

SE C

8. In an action for the recovery of a parcel of land claimed by


plaintiffs as thei r he re di t a r y sha re s , de fendants in their
answer atta che d, by way of defense, copies of th e de e d s
of sal e a l l e ge dl y e x e c ut e d by plaintiffs in favor of their
brother over their shares in said parcel of land, and a copy of
the deed of sale thereafter executed by said vendee in favor
of the defendants. Said original deeds of sale and the
subsequent deed of sale in favor of the defendants are
actionable documents as they constitute their defense to the
action. Pursua n t to Sees. 7 and 8 of Rule 8, the
authenticity and due execution of said deeds of sale ar e
impliedly admitted by plaintiffs for failure on their par t to
file a reply under oath specifically denying the same. This
implied admission, however, does not apply to the other
plaintiffs who are the heirs of one of the (deceased)
original vendors since they were not parties to
the
documents. Furthermore, i t appears that in their verified
complaint, the plaintiffs alleged that they never sold their
hereditary shares and, consequently, the defendants were
aware that they would be called upon to establish the
genuineness and due execution of said deeds of sale.
Accordingly, the Suprem e Court relieved the plaintiffs of
the effects of their implied admission in the interest of
justice (Toribio, et al. us. Bidin, etc., et al., G.R. No. 57821,
Jan. 17, 1985).
9. Where the case had been tried in disregard of the rule on
actionable documents and plaintiff presented oral evidence
to prove authe ntici t y and due execution, and failed to
object to defendant's evidence in refutation, the rule is
deemed waived (Yu Chuck us. Kong Li Po, 46 Phil. 608),
especially where both parties acted in disregard of or
overlooked the rule at the trial (Central Surety & Insurance
Co. us. Hodges, L-28633, Mar. 30, 1971).
Sec . 9. Official document or act. In p l e a d i n g an
official d o c u m e n t or official ac t i t i s suffi ci e nt to

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REMEDIA L

LAW C O M P E N D I U M

SE C . 10

aver tha t the d oc u me n t wa s i ssue d or the act don e


in c o mp l i a n c e wit h law. (9)
Sec. 10. Specific denial. A d e f e n d a n t mu s t
spe cify eac h mate r i a l al l e g ati o n of fact th e trut
h o f w hic h h e doe s not admi t and , w h e n e v e r prac
ti c abl e , shall set forth th e s u bs t a n c e of th e ma tte r s
upo n w hi c h he relies to suppor t his de ni al . Where
a d e f e n d a n t d e s i r e s to de n y onl y a par t of an
a ve r me n t , he shall spe cify so muc h of i t as i s true
and mate r i a l and shall de n y th e re mai n de r . Whe re
a de f e n d a n t i s w i t h ou t kn ow l e dg e or i n f or mat i o n
sufficient to form a belief as to the truth of a materi al
a v e r me n t mad e in th e c o mpl a i n t , he shall so state ,
and thi s shall hav e the effect of a de ni al . (10a)
NOTES
1. There are two ways of making a specific denial, i.e., (a) by
spec ific all y de n yi n g th e a v e r m e n t and , whe ne ve r
possible, set t i ng forth the subst a nc e of the m a t t e r s relie d
upo n for suc h de nia l ; an d (b) by an allegation of lack of
knowledge or information sufficient to form a belief as to
the trut h of the a ve rm e nt in the opposing part y' s pleading.
2. Where the a ve rme nt s in the opposing part y' s pleading are
based on documents which are in the pos session of the
defendant, or are presum ed to be known by him, or ar e
re a di l y a s c e rt a i na b l e by him, a ge ne ra l allegation of lack
of knowledge or information thereof on his part will not be
considered a specific denial but an admission (see Warner,
Barnes and Co., Ltd. vs. Reyes, et al., 103 Phil. 662; Capitol
Motors Corp. vs. Yabut, L-28140, Mar. 19, 1970; New Japan
Motors, Inc. vs. Perucho, L-44387, Nov. 5, 1976; Gutierrez,
et al. vs. CA, et al., L-31611, Nov. 29, 1976). The
defendant must aver or state positively how it is that he
is ignorant of the facts

180

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M A N N E R O F MA KI N G A L L E G ATI O N S
1 I N PLEADING S

SE C 1

alleged (Phil. Advertising Counselors, Inc. vs. Revilla,


et al, L-31869, Aug. 8, 1973). Where the answer alleges
lack of knowle dge of the "exact am oun t due" to the
plaintiff, th e sam e will pre c l ude a j ud gm e n t on the
p l e a d i n g s bu t not a motion for s u m m a r y j u d gm e n t
if s u p p o r t e d by a d e q u a t e proof (Phil. Bank of
Communications vs. Guitar Match Mfg. Co., Inc. 102
Phil.
1162 fUnrep.J).
3. Where the answer merely reproduces the recitals in the
complaint and denies such recitals without setting forth the
matte rs relied upon in support of such denials although it is
practicable to do so, such answer contains only general
denials and judgm ent on the pleadings is proper (Sy-Quia,
et al. vs. Marsman, ct al, L-23426, Mar. 1, 1968).
4. A "negative p r e gn a n t " is tha t form of denial which at the
same time involves an affirmative impli cation favorable
to the opposing part y. Such a "negative pre gna nt " is in
effect an admissi on of the a ve rme n t to which it is
directed (1 Martin 306). It is said to be a denial pre gna n t
with an admission of the subst a nt ia l facts in the pleading
responded to (Guevarra vs. Eala, A.C. No. 7136, Aug. 6,
2007).
Where a fact is alleged with some qualifying or
modifying l a ngua ge , and the denial is conjunctive, a
negative pre gna nt exists and only the qualification or
modification is denied, while the fact itself is admitted
(Ison vs. Ison, 115 SW 2d. 330, 272 Ky, 836). Thus,
where the complaint alleges that the defendant deprived
plaintiff of possession on a claim of having purchased
the property from a third person, and the answer denies
merely the "material averments" and asse rts that the
defendant never claimed possessory rights based on the
alleged purc ha s e from such third person, ther e is a
negative pre gnant as the defendant has in effect, denied
only the qualification but not the averment that he had

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R E M E D I A L LAW

COMPENDIU M

SE C . 11

deprived the plaintiff of actual possession of the land


(Galofa vs. Nee Bon Sin, L-22018, Jan. 17, 1968).
5. The same rule applies in appellate proceedings where the
appellant ' s assi gnment of error is to the effect that the
conclusion of the Court of Appeals "is not sup ported by
any direct testimonial evidence." This is a ne ga ti ve
p r e gn a n t as such conte nti on does not deny th e
e x i s t e nc e of indi rec t t e s t i m o n i a l e vi de nc e or of
doc ume nt a r y evidence (Taniayo us. Callejo, et al., L25563, July 28, 1972).
6. Where the suit is brought upon the contractual obligation
under the contract of carria ge contained in bills of lading,
such bills of lading can be categorized as actionable
doc um e nt s which unde r this Rule must be pleaded either
as causes of action or defenses, and the genuineness and
execution of which are deemed admitte d unl ess specificall y
denied unde r oath by the a dve rse part y.
Even a ssum i ng tha t the pa rt y a ga i nst whom said
provisions in the bills of lading are alleged made an
a ve rm e nt in its responsive pleading which am ount s to a
de nial , such denial i s none t hel e ss p r e gn a n t with the
a d m i s s i o n of th e s u b s t a n t i a l facts i n th e pl e a di n g
responded to which are not squarely denied. Thus, while
th e re s p o n d i n g pa rt y objected to the va li dit y of th e
a gr e e m e n t c onta i ne d in th e bills of la ding for being
contrary to public policy, the existence of the bills of lading
and the stipulat ions therein are impliedly admitted. The
denial made by the responding part y is what is known in
the law on pleadings as a negative pre gna n t and is in
effect an adm i ssi on of the a ve rm e n t i t is di rec t e d to
(Philippine American General Insurance Co., et al. vs.
Sweet Lines, Inc., et al, G.R. No. 87434, Aug. 5, 1992).
Sec . 11. Allegations not specifically denied deemed
admitted. IVLatexial-aver ment in th e c o m p l a i n t ,

182

RULE 8

MANNER OF MAKING ALLEGATIONS


11 IN PLEADINGS

SEC

other the** t h o s e a s t o t he -a mou n t o f un l i qu i dat e


d a m a g e s , sh al l b e d e e me d a d m i t t e d whe n- no
s p e c i f i c a l l y de nie d . A l l e g a ti on s o f usur y i n
c ompl ai n t to rec ove r usur i ou s i nte rest are de e me
a dmi tte d i f not de ni e d unde r oath, (la , R9)

d
t
a
d

NOTES
1. The following a ve rme nt s in the complaint are not
deemed a dmi t te d even if not specifically denied: (rj
allegations as to the amount of damages, (b) allegations
which are immaterial to the cause of action (Worcester
vs. Lorenzana, 104 Phil. 134), which includes conclusions
of fact and law, inferences, etc., and (c)'all allegations in
the complaint where no answer has been filed by the
defendant (Lopez vs. Mendezona, 11 Phil. 209; Worcester
vs. Lorenzana, supra).
2. The following a ve rme nt s in the complaint are deemed
admitted even if specifically denied: (a) allegations as to
usury, and (b) the authenticit y and due execution of
acti onable doc um e nt s properl y pleaded where the
opposing part y was a party thereto. Mere specific denial
is insufficient as the Rules require that such denial must
be under oath.
3. . Howe ver, i t has been held tha t the rule tha t
allegations of usury are deemed admitted if not denied
specifically and under oath is a procedural rule and the
lack of an oath in a pleading is a defect which is subject to
waiver just as a defective or imperfect verification may be
waived. Besides, the reglementary admission
of the
allegation of usury arising from failure to make a denial
under oath may, like any other admission in court, be
wi t hd ra w n with leave of court unde r Secs. 2 and 3, Rule
10 which permit substantial amendment of pleadings once
as a matter of right when the action has not been placed
on the trial calendar or, after the case is set for

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R E M E D I A L LAW

COMPENDIU M

SE C . 12

hearing, upon leave of court (Dionisio vs. Puerto, et al., L39452, Oct. 31, 1974).
See, in this connection, the case of Liam Law vs.
Olympic Sawmill, et al., supra, cited under Note 3 of
Sec. 10, Rule 6 and the discussion thereon.
4. Where the defendant relied solely on his defense
of res
judicata and submi tted the case for decision on that
issue, he is deemed to have admitted all the mate rial
a l l e g a t i o n s i n th e c o m p l a i n t and j u d g m e n t can b e
rendered accordingly (Dominguez vs. Filipinos Integrated
Services Corp., et al., G.R. No. 58820, Sept. 30, 1982).
Sec . 12. Striking out
of
pleading
or
matter
contained therein. Upo n m o t i o n m a d e by a p a r t y
be for e r e s p o n d i n g t o a p l e a d i n g or, i f no r e s p o n s i v e
p l e a d i n g i s p e r m i t t e d b y t h e s e Rul e s , up o n m o t i o n
m a d e b y a p a r t y w i t h i n t w e n t y (20) da y s aft e r th e
se r vi c e o f th e p l e a d i n g upo n him , o r upo n th e c o u r t ' s
ow n i n i t i a t i v e a t an y t im e , th e c o u r t ma y o r d e r an y
p l e a d i n g t o b e s t r i c k e n ou t o r t h a t an y s h a m o r
false , r e d u n d a n t , i m m a t e r i a l , i m p e r t i n e n t , o r
s c a n d a l o u s m a t t e r b e s t r i c k e n ou t t h e r e f r o m .
(5 , R9 )

184

RULE 9
EFFECT OF FAILURE TO PLEAD
S e c t i o n 1. Defenses and objections not pleaded.
D e f e n s e ^ 4 ^ d o b j e c t i o n s no Impleaded e i the r in a
mot i o n t o d i s m i s s - o r i n th e a n s w e r are d e e me d
w a i v e d . H o w e v e r , w h e n i t a p p e a r s fr o m th e
pl e a di ng s or th e e vi de n c e on recor d that the c our t
has n o j u r i s di c t i o n ove r th e subjec t ma tte r, tha t
the re i s a n oth e r ac ti o n pe n di n g be tw e e n the same
par ti e s for th e sam e c ause , or tha t the ac ti o n i s
b a r r e d b y a pr i o r j u d g m e n t o r b y s t a t u t e o f
l i mi tati ons, the cour t shall di s mi s s the clai m. (2a)
NOTES
1.. Unde r this a me nde d provision, the following defenses
are not waived even if not raised in a motion to dismiss or in
the answer: (a") lack of jurisdiction over the subject
matter; (b~) litis pendentia; (c) res judicata; and
(d) prescription of the action.
2. The omnibus motion rule in the former Sec. 2 of this Rule
also provided, as an exception thereto, "the failure to state
a cause of action which may be alleged in a later
pleading, if one is permitted, or by motion for judgment on
the pleadings, or at the trial on the merits; but in the last
instance, the motion shall be disposed of as provided in
Section 5, Rule 10 in the light of any evidence which may
have been received."
That ground and the alternati ve bases for consider
ing it, in the event it was not alleged in either a motion
to dismi ss or in the answer, has been deleted as an
exception to the omnibus motion rule. The alternative
ways for posing this ground for consi de rati on of the
court in other pleadings, that is, in a later pleading if

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R E M E D I A L LA W C O M P E N D I U M

SE C . 1

permitte d or by motion for judgm ent on the pleadings,


are contingent on future events and will only result in delay.
On the other hand, the failure to state a cause of action
should be challe nge d in e it he r a motion to dismiss or in
the answer so that the case will not proceed for
consideration, despite such omission, upon a defective and
insufficient complaint which could have been remedied in the
first instance by the plaintiff duly responding to the
objection on tha t ground. If that ground is correctly raised
in a motion to dismiss, or in the ans we r as an a ff i r m a t i v e
de f e n s e , th e c our t ca n a l w a y s allow a m e n dm e n t of the
complaint and the case will proceed to trial sans tha t defect.
If the complaint is dismissed on tha t ground, the
plaintiff can refile his com pla i nt as such dismissal does
not normally constitute an adjudication on the merits.
The foregoing obse rva t i ons refer to the si t ua t i o n
where the complaint or other initiatory pleading fails to
allege facts constit uti ve of a cause of action. Wha t is
contem plat ed, therefore, is a failure to state a eause of
action which is provided in Sec. 1(g) of Rule 16. This-is a
m at t e r of insufficiency of the pleading. Sec. 5 of Rule 10,
which wa s also incl ude d as the las t mode for -raising
the issue to the court, refers to th e situation where the
evidence does not prove a cause of action. T-hisis, therefore,
a m at t e r of insufficiency of the evidence. Failure to state
a cause of action is different from failure to prove a cause
of action. The-remedy in the first is to move for dismissal
of the pleading, while the remedy in the second is te-demur
to the evidence, hence reference to Sec. 5 of Rule-1-0 has
been elimi nate d in this section. The proc edure would
consequentl y be to require the pleading to state a cause
of action, by timely objection to its deficiency; or, at the
trial, to file a de m urre r to the evidence, if such motion is
wa rra nte d .

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 1

3. The objection on jurisdictional grounds which is not


waived even if not alleged in a motion to dismiss or the
answer is lack of jurisdiction over the subject-matter. Lack of
jurisdiction over the nature of the action has been eliminated
in Rule 16 of these revised Rules, although that objection
may
possibly
be
raised
in
other pleadings or
procee dings. Lack of jurisdiction over the subject- matter
can always be raised anytime, even for the first time on
appeal, since juri sdi ct i onal issues cannot be waived but
subject, however, to the principle of estoppel by laches.
4. The 'defense of litis pendentia has been included in the
exceptions to the general rule on waiver in this ame nde d
section by reason of the fact that, since the other case is
still pending, a resolution of the objection raised on this
ground should properly await the resolution of and the
developments in the other pending case. Upon the
oc curre nce of the re l e va n t contingencies in tha t other
case, this objection may then be raised, unless already
submitted to the court, which by then would be in a be tt e
r position to appre ci a t e the merit s of this objection.
5.Res judicata and prescription of the claim have also been
added as exceptions since they are grounds for
exti nguishm ent of the claim. It would appear to be unduly
technical, if not contrary to the rule on unjust enri c hm e nt ,
to have the defending part y respond all over again for the
same claim which has already been resolved or is no longer
recoverable under the law. It is worth mentioning in this
connection that, in Sec. 5 of Rule 16 as am e nde d, an
order gra nti n g a motion to dismiss on the grounds, inter
alia, of res judicata or prescription shall bar the refiling of the
same action or claim.

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6. . The p r e s e n c e of an y of t he s e four g r o u n d s
authorizes the court to motu proprio dismiss the claim,
that is, the claims asserted in a complaint, counter claim,
cros s-c la im , t hi r d (fourt h, e t c .) -pa rt y c o m pl a i n t or
complaint-in-intervention (see Sec. 2, Rule 6). In order tha t
it may do so, it is necessary that the constitutive facts of
such grounds, if not in the answer with evidence dul y
a dd uc e d t h e re fo r , shoul d a p p e a r i n th e ot he r
pleadings filed or in the evidence of record in the case.
7. Specifically with respect to the defense of pre scription, the
pre se n t provision is sim ilar to the rule adopte d in civil
cases, but dissimila r to the rule and rationale in criminal
cases. In civil cases, it has been held tha t the defense of
prescription
may be considered only if the same is
invoked
in the
answer,
except where the fact of
prescription appears in the alle gations in the compla int or
the evidence p re s e n t e d by the plaintiff, i n whi c h case
suc h de fe ns e i s not de e m e d wa i ve d (Ferrer vs. Ericta,
et al., L 41761, Aug. 23, 1978; Garcia vs. Mathis, et al.,
L-48577, Sept. 30, 1980). It would thu s a ppea r tha t the
non-wai ver i s de p e n de n t on the time line ss of invocation of
the defense, or where such defense is a m at t e r of record
or evidence.
8. In criminal cases, the same general rule on waiver of any
ground for a motion to quash also obtains where the
accused fails to a ssert the same either because he did
not file such motion before he pleaded or failed to allege
such ground the rei n. Except ed from this rule, howe ve r, is
th e groun d of p re s c r i pt i o n ei t he r of the offense or the
penalt y, that is, that the criminal action or liability has been
extingui shed (Sec. 9, Rule 117). This provision does not
require the qualifications of season abl e i n vo c a t i o n or
r e c o r de d fact of th e gr o u n d of prescription as discussed
above for civil actions. Instead, said provision is evidentl y
based on the rulings of the S u p r e m e
C ou r t t h a t
o bj e c t i o n o n th e g r o u n d o f

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pre sc ri pt i o n of th e crime is not waived even if not


raised before the plea, since prescription is a substanti ve
ri gh t whic h c a nno t be de fea t e d by pr o vi si on s of a
procedural law (People vs. Moran, 44 Phil. 387; People
vs. Castro, 95 Phil. 462). For that matter, such objection
may even be raised for the first time on appeal (People
vs. Balagtas, 105 Phil. 1362 fUnrep.J; Escano, et al. vs.
Geronimo, [CA], 60 O.G. 8497).
Sec. 2. Compulsory counterclaim, or cross-claim, not
set up barred. A c o m p u l s o r y c ou n t e r c l ai m , or a crosscl ai m, no t se t up shal l be barred. (4a)
NOT E S
1.

See notes under Secs. 7 and 8, Rule 6.

2. Where, in a first action agai nst him, the com pulsory


c ounte rc la i m of de fe nda nt was dismissed for non-pa yment
of docket fee, such dismissal is not a bar to his filing of
the same counterclaim in a subsequent action i n st i t ut e d
by the plaintiff involving the same s ub j e c t -m a t t e r . The
di sm i ssa l of said count e rc l ai m does not constit ute res
judicata because it was not a determination on the merits
of the
counterclaim. Also, the d i s m i s s a l of said
c o u n t e r c l a i m ha vi n g bee n u n q u a l i f i e d , he nc e w i t h o u
t p r e j u di c e , i t does not constitute an adjudication on the
merits since this rule in Sec. 2, Rule 17 applies not only
to a complaint but also to a counterclaim which partake s
of the nature of a complaint. This is aside from the
consideration that, since the dismissal of the counterclaim
was premised on the postulate that for non-pa yment of the
docket fee the court did not acquire jurisdiction thereover,
then with much more reason can there be no invocation of
res judicata, not to speak of the fact that it was error for
the tri a l c our t t o orde r suc h d i s m i s s a l si nce th e
pa yment of docket fees is required only for permissive,

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not compulsory, counterclaims (Meliton vs. CA, et al.,


G.R. No. 101883, Dec. 11, 1992).
Sec. 3. Default; declaration of. If the d e f e n di n g
par t y fai l s t o a n s w e r w i t h i n th e ti m e a l l ow e d
t h e r e f o r , th e c o u r t s h a l l , u p o n m o t i o n o f th e
c l ai mi n g par ty wit h notic e to the de f e n di n g party,
and pr oo f o f suc h fai l ure, de c l a r e th e d e f e n d i n g
party in defaul t. Th e r eu pon , the court shall pr oc e e d
t o r e n de r j u d g m e n t g r a n t i n g th e c l a i ma n t suc h
relief a s his pl e a di n g ma y w ar rant , u nl e s s the court
i n its d i s c r e t i o n r e qui re s th e c l ai ma n t t o su b mi t
e v i d e n c e . S u c h r e c e p t i o n o f e v i d e n c e ma y b e
de l e g a t e d to the cler k of court, (l a , R18)
(a)Effect of order of default. A par ty in de faul t shall be e nti tle
d to notice of s u bs e q u e n t pr oc e e di ng s but no t to tak e
part in th e trial. (2a, R18)
(b)Relief from order of default. A party de c l are d in de fa ul t
ma y at an y ti m e after n oti c e th e r e o f an d before
j u dg me n t file a moti on un de r oat h to set asi de th e
or de r o f de fa ul t upo n pr ope r s h ow i n g tha t his f a i l u r
e t o a n s w e r wa s du e t o f r a u d , a c c i d e n t , mi s ta k e or
e xc u s a bl e n e gl i g e n c e and tha t he ha s a m e r i t o r i o u s
d e f e n s e . I n suc h c ase , th e or de r o f d e f a u l t ma y b e
se t a s i d e o n s u c h t e r m s an d c o n di t i o n s a s th e judg
e ma y i mpos e i n the i nte res t of justi c e . (3a, R18)
(c) Effect of partial default. Whe n a pl e a di n g a s s e r t i n g a cl ai
m state s a c ommo n c aus e of ac ti o n a g ai n s t s e ve r a l
d e f e n d i n g par ti e s , som e o f w h o m a n sw e r and the
othe r s fail to do so, th e cour t shall try th e cas e
a gai n s t all upo n th e a n s w e r s thu s filed and ren de r
j u d g me n t upo n the e v i de n c e pr e s e n t e d . (4a, R18)

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Extent of relief to be awarded. A j u dg me n t ren de re d


agai ns t a party in defaul t shall not e xce e d the a mou n
t or be diffe rent in kind from that praye d for nor aw ar
d un l i qu i dat e d da ma ge s . (5a, R18)

(e) Where no defaults allowed. If the de f e n di n g party ir fan


ac ti on for a n n u l me n t or de c l ar ati on of nullity of
mar r i age or for legal se par ati on fails to a n s w e r , th e
c our t shal l or de r th e p r o s e c u t i n g att or ney to
i nve st i g at e w he th e r or not a c ol l usi on b e t w e e n th e
p a r t i e s e x i s t s , an d i f t h e r e i s n o c ol l usi on, to
i nte r ve n e for the State in or de r to see to i t tha t the
e v i de nc e s u b mi tt e d i s not fabricate d. (6a, R18)
' ' ^ N O T E S ' "
1. An order of default should be distinguished from a
judgment by default. An order of default is issued by the
court, on pl aint iffs motion and at the start of the
proc ee di ngs, for failure of the de f e n da n t to file his
responsive pleading seasonabl y. It is only thereafter,
when the evidence for the plaintiff has been received ex
parte, that the court renders a judgment by default on
the basis of such evidence.
2. This section provides for the extent of the relief that may
be awarded in the judgm ent by default, i.e., only so much
as has been alleged and proved. The court acts in excess of
juri sdicti on if it awa rds an am oun t beyond the claim made
in the complaint or beyond that proved by the evidence.
Furt he rm ore , as amended, no unliquidated damages can be
awarded and said judgment shall not exceed the amount or
be different in kind from that prayed for. If the claim is not
proved, the case should be dismissed (Pascua, et al. us.
Florendo, et al., L-38047, April 30, 1985).

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3. Failure to file a responsive pleading within the re gl e m e nt a r y


period, and not failure to appe a r at the hearing, is the sole
ground for an order of default (Rosario, et al. vs. Alonzo, et
al, L-17320, June 29, 1963), except the failure to appear at
a pre -trial conference wherein the effects of a default on the
par t of the de f e n da n t are followed, tha t is, the plaintiff
shall be allowed to present evidence ex parte and a judgme nt
based thereon may be rende red a ga inst the defendant
(Sec.
5, Rule 18).
Also, a default judgme nt may be
rendered, even if the defendant had filed his answer, under
the ci rcum st ance in Sec. 3(c), Rule 29.
4. The court cannot motu proprio declare a defen dant in
default (Viacrusis vs. Estenzo, L-18457, June 30, 1962;
Trajano, et al. vs. Cruz, et al, L-47070, Dec. 29, 1977). T her
e mus t be a motion to tha t effect by the plaintiff with
proof of failure by the de fe nda nt to file his responsive
pleading despite due notice (Soberano vs. MRR Co., L19407, Nov. 23, 1966; Sarmiento vs. Juan,
G.R. No. 56605, Jan. 28, 1983). Formerly, the defendant
did not have to be served with notice of the motion to
have him declared in default (Pielago vs. Generosa, 73
Phil. 634, based on Sec. 9, Rule 27 of the old Rules and
reproduced subst a nt ia l l y in Sec. 9, Rule 13; De Guzman
vs. Santos, et al, L-22636, June 11, 1970, citing Duran
vs. Arboleda, 20 Phil. 253; Inchausti & Co. vs. De Leon,
24 Phil. 224; Monteverde vs. Jaranilla, 49 Phil. 297;
Manila Motor Co. vs. Endencia, 72 Phil. 130; The Phil.
British Co., Inc., et al. vs. Delos Angeles, etc., et al, L-3372021, Mar. 10, 1975). An i m po rt a n t change
has been
effected by the pre se nt a m e ndm e nt s in the sense tha t an
order of default can be made only upon motion of the
claiming part y and with the corresponding notice to the
defending part y.
On th e ot he r ha nd , unde r the rule on s u m m a r y
procedure, no default order is rendered or required as a
motion to declare the defendant in default is prohibited;

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC.

and a default judgme nt may be rendered by the court


motu proprio or on motion of the party asserting the claim.
5. The defendant who files his answer in court in time but
failed to serve a copy thereof upon the adverse party may
validly be declared in default (Gonzales vs. Francisco, 49
Phil. 747; Banares vs. Flordeliza, et al., 51 Phil. 786).
6. . The fact tha t the de fe nda nt was de clared in default
is of no moment when the plaintiff would not have
been entitled to relief since his complaint did not state a
cause of action, hence the same should be dismissed (Reyes
vs. Tolentino, et al., L-29142, Nov. 29, 1971).
7. It is within the discretion of the trial court to set asi de an
orde r of de fa ul t and pe r m i t the filing of de f e n d a nt ' s
a n s we r even be yond the r e g l e m e n t a r y period, or to
refuse to set aside the default order where it finds no
justification for the delay in the filing of the a nswe r
(Malipod vs. Tan, L-27730, Jan.
21,
1974). However,
defendant' s answer should be admitted where it was filed
before he had been declared in default and no prejudice
could have been caused to plaintiff, as default j ud gm e nt
s are generall y disfavored (Trajano, et al. vs. Cruz, et al,
supra). Where the answer is filed beyond the re gl eme ntar y
period but before the defendant was declared in default, and
there is no showing that defendant intended to delay the
case, the answer should be admitted
(Cathay Pacific
Airways, Ltd. vs. Romillo, etc., et al, G.R. No. 64276, Mar.
4, 1986). Also, where the failure of defendant to
seasonably file her answer is excusable and the lifting
of the default order will not in any way prejudice
plaintiff's substantial rights, the court should apply the
Rules liberally and set aside the default order (Santos vs.
De la Fuente Samson, et al, L-46371, Dec. 14, 1981; cf.
Akut vs. CA, et al, L-45472,
Aug. 30, 1982; Azul, et al. vs. Castro, et al, G.R.
No. 52241, Nov. 19, 1984).

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8. A motion to lift an order of default should be under oath or


verified and accompanied by an affidavit of me rit s. The
re qu i re m e nt s of Sec. 3 of this Rule are practically identical
to those of Sec. 3, Rule 38 (The Phil. British Co., Inc. vs. De los
Angeles, etc., et al., supra; Claridad, et al. vs. Santos, et al., L29594, Jan. 27, 1983). However, if the motion to lift the order
of default is grounded on the very root of the proceedings,
i.e., invalid service of summons on the defendant, affidavits
of merits are not necessary (Ponio vs. IAC, et al., G.R. No.
66782, Dec. 20, 1984).
Also, if the motion to lift an order of default is under
oath and contains the reasons for the failure to answer,
as well as the prospective defenses, a sepa rate affidavit
of me rit s an d a verificati on ar e not ne c e ss a r y (Lim
Tanhu, et al. vs. Ramolete, et al, L-40098, Aug. 29, 1975;
Azul, et al. vs. Castro, et al., supra).
9. Where a motion to lift an order of default is denied and a
motion for the reconsideration of said denial order is filed
based on subst a nt i al l y the same grounds, said motion for
reconsideration is not pro forma as it is directed agai nst an
interlocutory, an d not a final, order and the reiteration of the
same grounds seeks a second look by the court on the merits
of said grounds (BA Finance Corp. vs. Pineda, et al., G.R. No.
61628, Dec. 29, 1982).
10. The motion to lift the order of default, aside from the
re qui re m e nt s in Sec. 3 of this Rule, must further show tha t
the de fe nda nt ha s a me rit ori ous defense or tha t s o m e t h i n
g would be ga i ne d by ha vi n g th e orde r of default set
aside (Carandang vs. Cabatuando, et al., L-25384, Oct. 26,
1973). Otherwise, and if the motion is not accompanied
by affidavits of merits, it may properly be denied (Ong
Peng vs. Custodio, L-14911, Oct. 26, 1961; The Phil. British
Co., Inc., et al. vs. De los Angeles, etc., et al., supra).

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11. . The former rule was tha t where a pa rt y had moved


to set aside the order of default, he was entitled to copies
of all p l e a d i n g s
and orde r s
filed and
issued
thereafter. If he had not done so, he was still entitled to
be served with copies of substantiall y amended or sup
plemental pleadings, as well as final orders or judgments.
The qualifications were rationalized as follows:
He mus t be served with a me nde d pl eadi ngs and
supple ment al pleadings as he may be entitled to plead
thereto. Thus, if the defendant was declared in default
upon an original complaint, the filing of the amended
complaint re sul te d in the wi t hd ra wa l of the ori ginal
complaint, hence the defendant was entitled to file an
answer to the amended complaint as to which he was not
in default. If the supple ment al pleading introduced new
claims, he was entitled to plead thereto as jurisdiction had
not been acquired over him in respect thereof.
He had to be served with a copy of the judgment by
default as he had the right to appeal therefrom and in
said appeal he may, aside from attacking the propriety
of the relief therein awarded, assign as error the order of
the court declaring him in default, or refusing to set
aside such order, or denying a motion for new trial as
the case may be.
This wa s be c a us e the n Sec. 2 of Rule 18 rea d:
"Except as provided in Section 9 of Rule 13, a pa rt y
declared in default shall not be entitle d to notice of
subsequent proceedings, nor to take part in the trial."
This rule wa s c onsi de re d too ha rsh , hence, as now
amended, par. (a) of this section simply provides that
while a part y in default cannot take part in the trial, he is
nonetheless entitled to notice of subsequent proceedings
without the qualifications under the former practice.
12. If the court sets aside the order of default, the defendant is
restored to his standing and rights in the action. However,
proceedings already taken are not to

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be disturbed (Jaime vs. Maniego, 101 Phil. 828), although


it is within the discretion of the court to re-open the
e vi de nc e s u b m i t t e d by th e pl aint iff an d e na bl e th e
defendant to challenge the same, as by cross-examination
of plaintiff' s wi t ne sse s or int roduci n g c o un t e r va i l i n g
evidence (see Denso [Phil.], Inc. vs. IAC, et al., G.R.
No. 75000, Feb. 27, 1987). The lifting of an order of default
does not re vert the case to its pre-trial stage, much less
render a second pre -trial mandatory (DBP vs. CA, et al., L49410, Jan. 26, 1989).
13. Under the former procedure, and the same would hold true
unde r the present ame nde d Rules, the alter na t i v e and
suc c e ssi ve re m e di e s of a pa rt y prope rl y declared in
default in the former Court of First Instance were: (1) He
may file a verified motion to set aside the order of default
at any time after discovery thereof and before j udgm e nt ; (2)
If he did not file one or the same was denied, he could
file a motion for new trial at any time after service of
judgm ent by default and within 30 days therefrom; (3) If
he failed to file said motion or the same was denied, he
could perfect his appeal from and on the merits of said
j udgm e nt by default within the balance of said 30-day
period; and (4) If he failed to take any of such steps, he
could file a petition for relief from judgm ent within 60 days
from notice of the jud gm e nt but within 6 months from entry
thereof (see Lina vs. CA, et al., G.R. No. 62397, April 9,
1985).
It should be noted, however, tha t under B.P. Blg. 129
and the Int erim Rules, the re glem enta ry period to appeal
has been uniformly set at 15 days, except in habeas corpus
cases for which the 48-hour period has been maintained,
and in special procee dings or cases whe re i n multi ple
appeals are permitted and in which cases the re gl eme ntar y
period is still 30 days. Considering the fact that the period
for filing a motion for new trial is coterminous with the
re glem enta ry period for appeal, the 30-day periods for the
second an d t hi r d re m e di e s above st a t e d would now

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apply only to special proceedings and cases susceptible of


multiple appeals, with the first and fourth remedies being
available as before. In all other civil actions, all the
abovestated remedies from a default judgment are still
available, it being understood, however, that the remedy
of new trial and appeal should now be availed of within
15 days from receipt of the judgment by default.
14. 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,
ele vate the ma tt e r by certiorari without waiting for the
default judgme nt (Viacrusis vs. Estenzo, L-18457, June 30,
1962; Pioneer Insurance & Surety Corp. vs. Hontanosas,
L-35951, Aug. 31, 1977). If a default judgm ent was
already rendered, he can also resort immediatel y to
certiorari as his challenge is on the nullity of both the
order and the judgment by default and not on the merits
or correctness of the judgment (Matute vs. CA, et al., L26751, Jan. 3, 1969), especially where a writ of execution
was already issued, hence appeal would not be a speedy
and a de qua t e remedy (Omico Mining & Industrial Corp. vs.
Vallejos, et al., L-38974, Mar. 25, 1975; Zenith Insurance
Corp. vs. Purisima, et al., G.R. No. 57535, May 24,
1982).
15. 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
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
had no opportunity to adduce evidence in the trial court;
hence, on appeal, only the self- serving evidence presented
by the plaintiff in the ex parte reception thereof would be
considered (Continental Leaf

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Tobacco [Phil.], Inc. vs. CA, et al., G.R. No.


Nov. 22, 1985).

69243,

16. A petition for relief from the order of default may be filed
at any time after discovery of the default order and
before judgm ent (Turqueza vs. Hernando, etc., et al., G.R.
No. 51626, April 30, 1980). Said order of default, however,
is not appeal able as the same is an int e rl oc ut or y order
(Vda. de Hoyo-a, et al. vs. Virata, et al., G.R. No. 71171,
July 23, 1985) and the same is true with an order denying
a motion for the re conside rati on of the default order.
17. I t ha s also been held, howe ve r, t ha t while a default order,
being interlocutory, is not appealable, an order denying a
petition for relief, seeking to set aside an orde r of
de fa ul t , i s not me rel y i n t e rl o c u t o r y bu t final and,
t he re fore , a ppe a la bl e (Rodriguez, et al. vs. IAC, et al,
G.R. No. 74816, Mar. 17, 1987).
18. It should not be overlooked tha t par. (c) of this section,
which e n un c i a t e s the rule on pa rt i a l default, does not
apply where the defending pa rti e s are jointly sued or
impleaded unde r se pa rat e causes of action. I t
c onte m pla t e s a claim or suit upon a common cause of
action a ga inst several defending pa rt ie s at least one of
whom files an answer while the others are in default.
19. If the ans we ri n g defendant succeeds in
plaintiff s claim, such result inures also to
the defaulting defendants (Velez vs. Ramos,
Bringas vs. Hernando, G.R. No. 51933, Sept.

defeating the
the benefit of
10 Phil. 788;
24, 1986).

20. . W he r e a c o -de fe n da n t who filed hi s a n s w e r died


and the case was dismissed as to him, the answe r he filed
does not inure to the benefit of the defendant who did not
file his own answe r. Neit her will the rule apply w h e r e th
e d e f e n s e s a l l e ge d b y th e d e f e n d a n t wh o

198

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answered are personal to him (Luzon Surety Co., Inc. us.


Magbonuo, et al., L-43851, July 30, 1976).
21 . The defendant who failed to answer shall be
declared in default and is deprived of the right to take
part in the trial and, in effect, he submits to whatever
decision may be rendered on the basis of the answer and
evidence adduced by the answe ring co-defendant (Lim
Tanhu us. Ramolete, etc., et al., L-40098, Aug. 29, 1975;
cf. Co us. Acosta, et al, G.R. No. 64591, Jan. 17, 1985).
22. There is no provision of the Rules disqualifying a party
declared in default from taking the witness stand for his
c o -d e fe nda nt s. The specific e n u m e ra t i o n of di squa lifi ed
w i t n e s se s excl ude s the ope rati on of the causes of
disability other tha n to those mentioned in Secs. 19, 20
and 21 , Rule 130. The provision of then Sec. 2, Rule 18
to the effect that "a part y declared in default shall not be
entitle d to notice of subse que n t proceedings nor to take
part in the trial" (now, par. [a] of this section, as
amended) means only the forfeiture of the defaulting
part y' s rights
as a party
litigant
and
not a
disqualification from merely testifying as a witness. The
incidental benefit of giving the party in default the
opportunit y to pre se nt evidence which may eventuall y
redound to his advantage, through his co-defendants, is
of minor consequence. There is no reason why the nond e f a u l t i n g d e f e n d a n t s shoul d be de pr i ve d of th e
testimony of the party in default and thereby also suffer
the conseque nces of the l at t e r' s proce dural omission
(Cauili, et al. us. Florendo, et al., G.R. No. 73039, Oct. 9,
1987, and cases jointly decided therein).
23. . Under par. (c) of this section, when a common cause
of action is alleged against several defendants, two of whom
seasonably filed their answers while the others were
declared in default, the answers of the former inure to
the benefit of the l at t e r and all the de f e n da nt s ,

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defaulted and not defaulted, share a common fate in the


action. It is not within the authority of the trial court to
divide the case before it by first dismissing the same, on
motion of the plaintiff, as a ga i ns t the non -de fa ul t e d
defendants and thereafter hearing it ex parte as against
th e d e f a ul t e d d e f e n d a n t s and r e n d e r i n g a de f a ul t
judgm ent against them. This is an unfair procedure and
de pri ve s the de fa ulte d de fe nda nt s of due proce ss as
they are thereby denied the benefit of the answer and the
evidence which could have been presented by their nondefaulted co-defendants, and which could be considered
in favor of all. Further, said order of dismissal divested
the trial court of the jurisdiction to proceed with the case
since all the defendants are obligors in solidum, hence
indispensable parties (Lim Tanhu, et al. us. Ramolete, etc.,
et al., supra).
24..

The p e r t i n e n t p ro vi s i o n s of th e Civil Code provided


as follows
"Art. 88 . No j udgm e nt annulling a marria ge shall
be pr om u l ga t e d upon a sti pul at i on of facts or by
confession of judgme nt.
In case of non-appea rance of the defendant the
p ro vi s i o n s of a rti c l e 101 , p a r a g r a p h 2 , shal l be
observed."
"Art. 101. No decree of legal separation shall be
p r o m u l g a t e d upo n a s t i p u l a t i o n of fact s or by
confession of judgm ent .
In case of non-appea rance of the defendant, the
court shall order the prosecuting att orne y to inquire
whe t he r or not a collusion between the parties exists.
If there is no collusion, the prosecuting att orne y shall
intervene for the State in order to take care tha t the
evidence for the plaintiff is not fabricated."
and, unde r the said Code, every collusion to obtain a
decree of legal se paration or of a n nu l m e n t of marria ge

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was void and of no effect (Art. 221).


The intervention of the prosecuting attorne y was,
therefore, proper and required where the defendant does
not answer or, even if he has answered, he does not appear
personally or by counsel at the trial.
The equivalent provisions of the Family Code are to
this effect:
"Art. 48. In all cases of annulme nt or declaration
of absolute nullity of marriage the court shall order
the prosecuting attorne y or fiscal assigned to it to
appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that
evidence is not fabricated or suppressed.
I n th e c a se s re f e r r e d t o i n th e p re c e di n g
p a r a g r a p h , no j u d gm e n t shal l be based upon a
stipulation of facts or confession of judgment."
"Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
judgme nt.
In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that
the evidence is not fabricated or suppressed."
25. . A default judgm ent rendered in an annulme nt case,
even if procedurall y erroneous, is ne verthe less a valid
judgme nt (De la Cruz vs. Ejercito, L-40895, Nov. 6, 1975).

RULE 10
AM E NDE D AN D SUP P LEM ENTA L P LE A DI N G S
Se c ti o n 1. Amendments in general. P l e a di n g s
ma y b e a me n d e d b y a d d i n g o r s t r i k i n g ou t a n
a l l e g a t i o n o r th e n a m e o f an y p a r t y , o r b y
c or r e c t i n g a mi s ta k e in th e nam e of a party or a
mi s t a ke n o r i n a de qu a t e al l e g ati o n o r d e s c r i pt i o n
in an y othe r res pe c t , so tha t th e ac tua l me r i t s of
th e c o n t r o v e r s y ma y s p e e d i l y b e d e t e r m i n e d ,
w i t h ou t regar d t o t e c h n i c al i t i e s , an d i n th e mos t
e x p e d i t i o u s and i n e x p e n s i v e ma n ne r . (1)
Sec. 7. Filing of amended pleadings. Whe n an y
p l e a d i n g i s a m e n d e d , a ne w c op y o f th e e n t i r e
p l e a di n g , i n c o r p o r a t i n g th e a m e n d m e n t s , w h i c h
shall be i n di c at e d by a p pr opr i at e mar ks , shal l be
filed. (7a)
NOTES
1. Am e ndm e nt s to a pleading should be indicated
in the
amended pleading, as by underscoring, enclosing them in
quotation marks, putti ng them in capital letters, and so
forth, as would make them readily evident.
2. .
The
amended pleading superse des the original
pl e a di n g which i s de e me d w i t h d r a w n and no longer
constitutes part of the record. However, the filing of the
am e nde d pleading does not re troact to the date of the
filing of the original, hence, the st a t ut e of limitations
runs until the filing of the am e ndm e n t (Ruymann, et al. vs.
Director of Lands, 34 Phil. 429). But an am e ndm e n t which
merely suppleme nts and amplifies facts originally alleged
in the complaint
relates
back to the date of the
com me nc em e nt of the action and is not ba rred by the
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stat ute of limitations which expired after the service of


the original complaint (Panay Electric Co. vs. CA, et al.,
G.R. No. 59647, Dec. 11, 1982). It is the actual filing in court
t ha t c ont rol s, and not the dat e of the formal admission of
the amended pleading (Republic vs. Marsman Dev. Co., L18956, April 27, 1972).
3. Where the original complaint states a cause of action bu t
does i t i m pe r fe c t l y , an d a f t e r w a r d s an ame nde d
complaint is filed correcting the defect, the plea of
prescription will relate to the time of the filing of the
original complaint (Pangasinan Trans. Co. vs. Phil. Farming
Co., Ltd., 81 Phil. 273). However, such rule would not
apply to the part y who was impleaded for the first time in
the amended complaint which was filed after the period of
prescription had already lapsed, hence the amended
complaint must be dismissed as to such party who was
thus belatedly included in the action (Aetna Insurance
Co.
vs. Luzon Stevedoring Corp., L-25266, Jan. 15, 1975; Seno,
et al. vs. Mangubat, et al., L-44339, Dec. 2, 1987).
4. The rule is that amendments should be liberally allowed
(Cese vs. GSIS, 109 Phil. 306). This liberality at the outset
of the action decreases as the case moves to its termination
(Salvador vs. Frio, L-25352, May 29, 1970). However,
a m e ndm e nt s to pleadings may be permitte d even for the
first time on appeal if, without changing the cause of action
or causing unfair prejudice to the other part y, the purpose is
to (a) correct a defect of part y plaintiff, as where it is merely
to include the husband of the plaintiff wife (Cuyugan
vs. Dizon, 79 Phil. 81); or
( b) su bs t i t ut e the name of the real part y in i nte re st (Palacio vs.
Fely Trans. Co., L-15121, Aug. 31, 1962; Chua Kiong vs.
Whitaker, 46 Phil. 578; Alonso vs.Villamor, 16 Phil. 320). Thus,
since a sole proprietorship is a business orga ni zati on
wit hout juridical pe rsonalit y to sue, an amendment to
substitute the owner thereof as plaintiff

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is only a formal a m e n dm e n t (Juasing Hardware vs.


Mendoza, et al., G.R. No. 55687, July 30, 1982). These
are aut horized as formal a m e ndm e nt s under Sec. 4 of
this Rule.
Sec . 2. Amendments as a
ma y a m e n d hi s p l e a d i n g
ri gh t a t an y ti m e be for e
g i s s e r v e d or, in th e cas e of
w ithi n te n (10) day s after i t

matter of right.A party


onc e a s a ma t te r o f
a res pon s iv e ple a di n
a repl y , at an y ti m e
i s ser ve d . (2a)

NOTES
1. Am e ndm e nt for the first time is a m at t e r of right before a
responsive pleading is filed or, in the case of a repl y, wit hi
n 10 da ys after i t was se rve d. Howe ve r, a m e n d m e n t for th
e second or subsequent tim e mus t always be with leave of
court even before a responsive pleading is filed or before the
case is set in the cale ndar of the court.
Where some but not all the defendants have filed their
answers, the plaintiff may amend his complaint, once as
a ma tt e r of right, in respect to the claims a ssert ed only
agai nst the non-answe ring defendants, but not as to the
claims a ssert ed a ga inst the other defendants who have
answe red (Siasoco, et al., vs. CA, et al., 362 Phil. 525,
Republic vs. Africa, et al, G.R. No. 172315, Aug 28, 2007).
2. Even after a motion to dismiss has been filed by de fe nda nt
(Paeste vs. Jaurigue, 94 Phil. 179) or such motion has been
submitte d for decision (Republic vs. Ilao, L-16667, Jan. 30, 1962),
the plaintiff can still ame nd his complaint as a ma tt e r of
right, since a motion to dismiss is not a responsive
pleading within this rule. An error of the court in
refusing such a m e n dm e n t is controllable by m a n da m u s
(Breslin, et al. vs. Luzon Stevedoring Co., et al, 84 Phil.
618; Ong Peng vs. Custodio, L-14911,
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SE C . 2

Mar. 25, 1961; cf. Dauden-Hernandez vs. De los Angeles L-27010,


April 30, 1969).
3. Ame ndm ent 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 amendment is to
submit the real matter in dispute without intent to delay
the action (Paman vs. Diaz et al., G.R. No. 59582, Aug.
26, 1982; cf. Sec. 3 of this Rule).
4. It has also been held that a complaint can still be amended as
a m at t e r of right before an answer thereto has been filed,
even if there was a pending proceeding in a higher court
for the dismissal of that complaint.
Under Sec. 3 of Rule 10, substantial ame ndme nt s of the
complaint are not allowed without leave of court after an
a nswe r has been served, and this is because any material
change in the allegations in the complaint could prejudice th
e de f e n da n t who ha s alrea dy set up his defenses in his
answe r. Conversel y, no rights of the de fe nda nt will be
violat ed by c ha nge s mad e in the complaint if he has yet to
file an answer thereto. The defendant has not pre se nt e d any
defense tha t can be altered or affected by an ame ndme nt
made in accordance with Sec. 2 of the Rule. In fact, he can
thereafter address the amended allegations by setting up the
defenses thereto in his projected
a nswe r (Remington
Industrial Sales Corp. vs. CA, et al, G.R. No. 133657, May
29, 2002).
5. The defense of prescription, which was not raised in a
motion to dismiss nor as an affirmative defense in the
original answer, may be validly set up for the first time in
an amended answer. This situation would not be violative of,
because it does not fall under, the general rule in then Sec.
2 (now, Sec. 1), Rule 9. The effect of the

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filing of the amended answer is the withdrawal of the


original answer and its substitution by the former. Since
in this case no responsive pleading, such as a reply,
had been filed by the plaintiff and the case had not
been c al e nda re d for he a ri n g, the de fe nda nt had the
right to amend his answer, pursuant to Sec. 2, Rule 10,
and in the process set up the defense of prescripti on
(Aznar III, et al. vs. Bemad, etc., et al., G.R. No. 81190,
May 9, 1988).
Sec . 3. Amendments by leave of court. E x c e p t
a s p r o v i d e d i n th e n e x t p r e c e d i n g s e c t i o n ,
s u b s t a n t i a l a m e n d m e n t s ma y b e m a d e onl y upo n
lea v e of c ou rt . Bu t suc h lea v e ma y be re f us e d i f
i t a p p e a r s t o th e c o u r t t h a t th e m ot i o n wa s ma d e
wit h i n t e n t t o de l a y . O r d e r s o f th e c o u r t upo n th e
m a t t e r s p r o v i d e d i n thi s se c t i o n shal l b e m a d e upo n
mot i o n filed i n c ou rt , an d after not ic e t o th e a d v e r s e
pa r t y , an d a n o p p o r t u n i t y t o b e h e a r d . (3a)
Sec . 4. Formal amendments. A de fe c t in th e
d e s i g n a t i o n o f th e p a r t i e s an d o t h e r c l e a r l y c l e ri c a
l o r t yp o g r a p h i c a l e r r o r s ma y b e s u m m a r i l y
c o r r e c t e d b y th e c o u r t a t an y s t a g e o f th e a c t i o n , a t
it s i n i t i a t i v e o r o n m o t i o n , p r o vi d e d n o p r e j u d i c e i s
c a u s e d t h e r e b y t o th e a d v e r s e pa rt y . (4a)
NOT E S
1. Sec. 3 of this Rule amended the former rule by elim inat ing the
phrase "or that the cause of action or defense is
subst a nt i al l y altered." The clear import of suc h
a m e n d m e n t i s t ha t unde r th e new Rule "the a me ndme nt
may (now) substa ntial l y alter the cause of action or
defense." This should only be true, however, when despite
a subst ant ial change or alteration in the cause of action or
defense, the ame ndme nt s sought to be made shall serve the
higher interests of substantial justice,
AMENDE D

AN D S U P P L E M E N T A L
PLEADING S

S E C S . 3- 4

pre vent delay and thu s equall y promote the laudable


objective of the Rules which is to secure a "just, speedy
and i n e x p e n s i v e d i s p o s i t i o n of e ve r y a ct i o n an d
p r o c e e d i n g " (see
Valenzuela, et al. vs. CA, et
al.,
G.R. No. 131175, Aug. 28, 2001). Philippine
Ports
Authority vs. William Gothong, etc., Inc., G.R. No. 158401,
Jan. 28, 2008).
2.

Amendments are not proper and should be denied:

a. Where the court has no jurisdict ion over the original


complaint and the purpose of the ame ndme nt is to
confer j u r i s d i c t i o n on th e cour t by e l i m i n a t i n g the
objectionable portion (Rosario, et al. vs. Carandang, et
al., 96 Phil. 845), or whe r e th e caus e of acti on ori ginall y
pl ea de d in the com plai nt was outside the jurisdiction of
the court (Versoza vs. Versoza, L-25609, Nov. 27, 1968;
Campos Rueda Corporation vs. Bautista, et al., L-18453,
Sept. 29, 1982), since the court must
first have
jurisdiction over the case before it can order such
ame ndme nt (Caspar vs. Dorado, L-17884, Nov. 29, 1965);
b. If it would result in delay (Lerma vs. Reyes, etal., 103 Phil.
1027; Sec. 3 of this Rule);
c.

If it would result in a change of the cause of action or


defense or change the theory of the case (Torres vs. Tomacruz,
49 Phil. 914; Sec. 3 of this Rule), or are i n c o n s i s t e n t wit h
th e a l l e g a t i o n s i n th e ori gi n a l complaint (Castillo, et
al. vs. CA, et al., G.R. No. 52008, Mar. 25, 1988), unless
justice and equity wa rra nt such a m e ndm e n t which would
negate defendant ' s liability (R&B Insurance Co., et al. vs.
Sauellano, et al., L-45234, May 8, 1985), or will not
result in subst a nt ia l injury to the
adverse part y
(Marini-Gonzales vs. Lood, et al.,
L-35098, Mar. 16, 1987); and

d. If the plaintiff had no cause of action at the filing of the


original complaint and the purpose of the amend-

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ment is to introduce a subseque ntl y-accrued cause of


action (Surigao Mine Exploration Co. vs. Harris, 68 Phil.
118).
3.

To determine whether a different cause of action is


introduced by amendments to the complaint, what is
ascertained is whether the defendant is being required to
ans we r for a liabilit y or legal obligation completel y
different from tha t st a te d in the ori gi nal c om pl a i nt
(Rubio vs. Mariano, et al, L-30404, Jan. 31, 1973). The
same test may be applied with respect to supple ment al
pleadings.

4.

As earlier stated, a plaintiff may move to amend his


complaint even if the same was dismissed on motion of the
defendant provided the dismissal order is not yet final. An
order denying such motion to amend the complaint is
appealable and the re gl eme ntar y period to perfect the
appeal runs from plaintiffs receipt of the order denying
his motion to amend the complaint (Constantino vs. Reyes,
supra).
Sec. 5. Amendment to conform to or authorize
presentation of evidence. W he n i ssue s not rai se d by
the pl e a di n g s are tried wit h the e xpr es s or i mpl i e d
c o n s e n t of the par ti e s, they shall be treate d in all
r es pe c t s as i f the y had bee n raised in the pl e a di ng s .
S u c h a m e n d m e n t o f th e p l e a d i n g s a s ma y b e
n e c e s s a r y to caus e the m to c onfor m to the e v i de nc e
and to raise thes e i ssue s may be mad e upo n moti on
of any party at any ti me, eve n after ju dg me nt ; but
failure to a me n d doe s not affect the resul t of the
trial of the s e i ssue s . If e v i de nc e is obje cte d to at
th e trial on th e gr ou n d tha t i t i s not w i t hi n th e
i ssue s mad e by the pl e a di n g s , the c our t may allow
the pl e a di ng s to be a me n de d and shall do so wit h
l i be r al i ty i f the p r e s e n t a t i o n of the me r i t s of the
ac ti o n and the end s of su bs tanti a l justi c e will be
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subserved thereby. The court may grant a continuance


to e nabl e the a me n d me n t to be made. (5a)
NOTES
1. This is an instance wherein the court acquires juri sdicti on
over the issues even i f the same are not alleged in the
original pleadings of the parties, i.e., where the trial of said
issues is with the express or implied consent of the parties.
Also, this rule is premised on the fact that evidence had
been introduced on an issue not raised by the pleadings
without any objection by the adverse part y. It, therefore,
does not apply when the case was decided on a
s t i p ul a t i o n of facts in which case the pleadings are not
deemed amended to conform to the evidenc e (MWSS us.
CA, et al., G.R. No. 54526, Aug. 25, 1986).
2. One line of cases holds that where the evidence s us t a i n s an
a wa r d in excess of tha t claimed in the complaint, but the
plaintiff failed to amend the pra yer of its complaint as
to the amount of damages to conform to the evidence, the
amount demanded in the complaint should be the measure
of damages [Malayan Insurance Co., Inc. vs. Ma ni l a Por
t Se r vi ce , e t al., L-23128 , Sept. 30, 1978; J.M. Tuason &
Co. vs. Santiago, 99 Phil. 615]. There have, however, also
been cases where the S u p r e m e Cour t ha s held tha t even
w i t h o u t suc h amendment to conform to the evidence, the
amount proved at the trial may be validly awarded
[Tuazon vs. Bolanos, 91 Phil. 106]. The rule on amendment
need not be applied rigidly, pa rtic ula rl y where no surprise
or prejudice is caused the objecting party [Co Tiamco vs.
Diaz, 75 Phil. 672] and where there is a variance in the
defendant ' s pleadings and the evidence adduced at the trial,
the court may treat the pleading as amended to conform to
the evidence [National Power Corp. vs. CA, et al., L-43814,
April 16, 1982].

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Consequently, the trial court should not be precluded


from awarding an amount higher than that claimed in
th e p l e a d i n g s n o t w i t h s t a n d i n g th e a bs e n c e of th e
required amendment, provided that the evidence of such
higher amount has been presented properly, with full
opportunit y on the part of the opposing parties to support
their respective contentions and to refute each other' s
evidence (Northern Cement Corp. us. IAC, et al., G.R.
No. 68636, Feb. 29, 1988).
3. Where the ejectment case was dismissed by the inferior
court and on appeal the plaintiff filed an amended com pla i nt
to include, as a dd i t i o na l cause of action, c o n t r a c t u a l
bre ach by the de f e n da n t which was not alleged in the
original complaint but on which issue the pa rt i e s had
p re s e n t e d thei r re spe ct i ve e vi de nce , a n amended
complaint may be admitted since the ame ndme nt is to make
the pleadings conform to the evidence (Dayao us. Shell
Co. of the Phil., Ltd., et al., L-32475, April 30, 1980).
Sec. 6. Supplemental pleadings. Upo n moti o n
of a party th e court may, upo n re as on a bl e notice and
upo n suc h te r ms as are just, per mit hi m to serve a
s u p p l e me n t a l pl e adi n g s e t ti n g forth tr a n sa c ti on s ,
oc c u r r e n c e s o r e ve nt s w hic h hav e ha p pe ne d si nce
the dat e of the pl e a di n g s oug h t to be s u p p l e me n t e d .
The adver s e party ma y plead the ret o w ithi n ten (10)
d a y s fr o m n o t i c e o f th e or de r a d m i t t i n g th e
s u p p l e me n t a l pl e adi ng. (6a)
NOTES
1. Distinctions between amended and suppleme ntal pleadings:
a. Amended pleadings refer to facts existing at the time of the
commencement of the action; supple ment al
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SE C . 8

pleadings refer to facts arising after the filing of the


original pleading.
b. An amended pleading results in the withdrawal of the
original pleading; a supplemental pleading is merely in
addition to, but does not result in the withdrawal of, the
original pleading.
c. An amended pleading can be made as of right, as when no
responsive pleading has yet been filed; supple mental
pleadings are always with leave of court.
2. Unlike the former provision wherein the court could r e q u i r
e th e a d ve r s e pa r t y t o pl ea d t o th e suppleme ntal
pleading if it deemed the same advisable, it is now up to
said part y to decide whether or not to plead thereto, provided
that if he desires to plead he must observe the re gl eme ntar y
period of 10 days therefor.
3. For correla tion, Sec. 7 of this Rule has been transposed to
follow Sec. 1 thereof.
Sec . 8. Effect, of amended pleading. An a m e n d e d
p l e a d i n g s u p e r s e d e s th e p l e a d i n g t ha t i t a m e n d s .
Ho w e ve r , a d m i s s i o n s i n s u p e r s e d e d p l e a d i n g s ma
y b e r e c e i v e d i n e v i d e n c e a g a i n s t th e p l e a d e r ; an d
c la i m s o r de f e n se s a ll e ge d t h e r e i n no t i n c o r p o r a t e
d i n th e a m e n d e d p l e a d i n g shal l b e d e e m e d wai ve d
, (n)
NOT E S
1. The first sentence of this section states, in general, the effect
on the original pleading by the subsequent filing of a
pleading amendatory thereof. See, however, Notes 2 and 3
under Sec. 1 of this Rule for the qualifications to and
ramifications of this general rule.
2. Although the supersedure of the original plead ing, upon
the admission of the amended pleading, amounts

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to the withdrawal of the former, it is nevertheless not


expunged from but re mains in the record of the case.
Reference can there by be readil y made the ret o with
re ga r d t o th e effects of th e a m e n d m e n t , t ha t is,
(a) admissions in the superseded pleading can still be received
in evidence against the pleader, and (b) claims or
defense s alleged t h e re i n but not i nc orpora t e d or
reiterated in the amended pleading are deemed waived.
The first effect, that is, the admissibility in evidence
of whate ver admission had been made by the pl eade r
therein is in line with the rulings on judicial admissions.
It will be noted that the admission made in that pleading
was, before it was superseded by amendment, in the nature
of a judicial adm i ssi on which does not even re qui re
proof and o rdi na ri l y ca nno t be c on t ra di c t e d by the
pleader. Despite its being superseded and withdrawn,
the admissions therein are still considered extrajudicial
a dm i ss i o n s and may be proved by the part y rel ying
the re o n by formal offer in evidence of such ori gi nal
pleading. See notes under Sec. 4 of Rule 129.

212

RULE 11
WHEN TO FILE RESPO NSIVE PLEADINGS
Sec ti o n 1. Answer to the complaint.
Th e
de f e n d a n t shall file his an sw e r to the c o m pl a i n t
w ithi n fifteen (15) day s after ser vice of s u mmo n s
unl e s s a diffe rent peri od is fixed by the court, (la )
Sec. 2. Answer of a defendant foreign private
juridical entity. Where the de fe n da n t is a foreign
pri vate juri di c al e nti ty and ser vice of s u mmo n s i s
made on the g ov e r n me n t official de si gnate d by law
to rec ei v e the same , the answ e r shall be filed w ithi n
thirty (30) days after rece i pt of su mmon s by suc h
entity. (2a)
NOTES
1. In the case of a nonresident defendant on whom
ext rate rrit orial service of summons is made, the period to
answer must be at least 60 days (Sec. 15, Rule 14).
2. The granting of additional time to the defendant wit hi n
which to file an a nswe r is a m a t t e r large l y addressed to
the sound discretion of the trial court (Naga Dev. Corp. vs.
CA, et al., L-28173, Sept. 30, 1971). Foreign authorities are to
the effect that while courts can extend the time for filing of
responsive pleadings, they can not shorten the time to do so
(1 Martin 344, citing Aaron vs. Anderson, 18 Ark. 268, 49 C.J.
200). This seems to be the inte ndm ent of our rules, as the
present Rule provides for discretion on the part of the
court to extend the time or allow pleadings filed after the
re glementary period, thus
"Sec. 11. Extension of time to plead. Upon
motion and on such terms as may be just, the court
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may extend the time to plead provided in these


Rules.
The court may also, upon like terms, allow an
answer or other pleading to be filed after the time
fixed by these Rules. (8a)"
It is believed, however, that the discretion of the court
to admit pleadings filed after the re glementary period has
expired does not extend to the steps necessary to perfect
an appeal which must all be done within the reglementary
period, unless prior to its expiration an extension has been
sought and granted on justifiable grounds.
3. A motion for extension of time to file an answer may be
heard and granted ex parte (Amante us. Sunga, L-40491, May
28, 1975).
4. An order allowing the filing of a late answer is i n t e r l o c u t o r
y an d not a p p e a l a b l e (De Ocampo us. Republic, L-19533,
Oct. 31, 1963).
Sec. 3. Answer to amended complaint. Whe r e
the pl ai ntiff files an a me n de d c o mpl a i n t as a matter
of right, the de fe n da n t shall answ e r the same w i thi n
fi fte e n (15) day s after be i n g s e r v e d w it h a cop y
thereof.
Whe r e its fi ling i s no t a ma tte r of right, th e
d e f e n d a n t shal l a n s w e r th e a me n d e d c o m p l a i n t
w i t h i n te n (10 ) day s fro m n o t i c e o f th e or de r
a d mi t t i n g the same . An answ e r earlie r filed may
serve as the an sw e r to the a me n de d c o mpl a i n t i f no
ne w a nsw e r i s filed.
T hi s Rul e shal l a p pl y t o th e a n s w e r t o a n
a me n de d c o u n t e r c l a i m , a me n de d c ross- cl ai m ,
a me n de d third (fourth, etc .)-par ty c ompl ai nt , and
a me n de d c ompl ai nt - i n -i nt e r ve nt i on. (3a)
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SE C . 3

NOTE
1. This amended section, while adopting the period
provided by the former Rule for the filing of an answer to
an amended complaint, now makes clear the date from which
such period shall be reckoned. Thus, if the filing of an
amended complaint is a matter of right, as where no
answer has yet been filed to the original complaint, no
motion for leave or court order granting such leave to
file an amended complaint being involved, the 15-day period
to answer is counted from service of the amended complaint.
If the filing of the amended complaint is not a matter of
right, then leave of court is required, hence the 10-day
period to answer runs from notice of the court order granting
the same. This simplified
procedure
has been made
possible by the new provisions in Rule 15, that is, Sec. 9
thereof which provides that a motion for leave to file such
pleading shall be accompanied by that pleading sought to be
admitted, hence the defendant has advance knowledge of
that proposed amended complaint. See notes under said
Sec. 9.
The alternative practice under the old Rule was for
the pleader to file a motion for leave to amend his com
plaint, attaching thereto the proposed amended pleading,
with copies of both furnished to the other party. In such
a case, the period to file an answer to tha t amended
complaint commences after receipt of the order of the
court allowing the filing of such a me nde d plea ding.
Where, however, a motion for leave to amend was first
filed and then, after the order granting the same, the
amended pleading was filed and served on the opposing
party, the reglementary period started to run from service
of such amended pleading. Thus, Sec. 3 was understood
to mean tha t the period shall "run from notice of the
order admitting the amended complaint" or the service of
the latter, whichever is later. That procedure has been

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simplified by the aforesaid amendments, and has been


extended in application to the answer to other amended
initiatory pleadings. See Sec. 7 of this Rule with respect
to a supplemental complaint.
Sec. 4. Answer to counterclaim or cross-claim. A
c o u n t e r c l a i m o r c r os s - c l a i m mus t b e a n s w e r e d
w ithi n ten (10) days from service. (4)
Sec. 6. Answer to third (fourth, etc.)-party com
plaint. The ti me to answ e r a thir d (fourth, etc.)party c ompl ai n t shall be g ove r ne d by the sam e rule
as the answ e r to the c ompl ai nt. (5a)
NOT E S
1 . J u s t as provi de d in Rule 6 , th e t h i r d - p a r t y
de fe nda n t shal l file his ans we r alle gi ng t he re i n his
defenses and his counterclaims and cross-claims against
the plaintiff, the third-part y plaintiff or any other party;
and he may a sse r t such defenses as the t h i r d -p a rt y
plaintiff may have against the plaintiffs claim.
2 . Th e t h i r d - p a r t y d e f e n d a n t i s se r ve
summ ons just like the original defendant, hence
has 15, 30 or 60 days from service of summons,
case may be, to file his answer just like the
defendant.

d wit h
he also
as the
original

Sec. 6. Reply. A reply may be filed w ithi n ten


(10) day s from se r vic e of the pl e a di n g r e s p o n de d to. (6)
NOT E S
1. This section uses the word "may" as it is ordinarily optional for
a part y to file a reply since, by his failure to do so, all
the new m a t t e r s alleged in the a n t e c e de n t
RULE 11

W HE N T O FIL E
RESPONSIV E PLEADING S

SE C . 6

pleading are deemed controverted. However, if he elects


to file a reply, he must observe the above period.
2.

Where the last day of the re glementary period falls on a


Sunda y or holiday, the pleading may be filed or th e
re qui re d act may be done on the succee ding business day.
Although pleadings may also be served and filed by mail
(Sec. 3, Rule 13), it has been held that even if the Bureau
of Posts and its branches are open on a holiday which is
the last day for filing a pleading, such pleading may still
be filed on the next day (Galang us. WCC, et al., L33928, Mar. 29, 1972).

3. In the computation of the reglementary period, especially if it


is interrupted by the filing of a pleading, the dat e when
th e pl e a di n g is filed and the date of recei pt of th e
j u d gm e n t or orde r t h e re o n are to be excluded.
Thus,
when the motion for reconsideration of a judgme nt is filed
on the 15th or last day within which to perfect the appeal,
that day should be excluded and the pa rt y still has one
day to perfect an appeal. The filing of said motion and
the pendency thereof suspends the r un ni n g of the
re gl e m e nt a r y period, unless said motion is pro forma.
Where, therea fter, an order is received denying said
motion for reconsideration, the date of such receipt is also
not considered in the com putation. Thus, excluding such
date of receipt and there being a balance of one day of the
reglementary period, the appeal can be perfected on the
working day following the day of re c ei pt of the de nial
order. This ruling clarifies and sets aside the doctrines
in Federal Films, Inc. us. Judge of First Instance of Manila
[78 Phil. 472] and Taroma us. Cruz, et al. [68 Phil. 281]
(Lloren us. De Veyra, L-13929, Mar. 28, 1962).
The aforesaid doctrine in Lloren was reiterated and
declared applicable whet he r the motion for reconsi
deration is filed days before or on the last day of the
reglementary period. Where such motion is filed, say,

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2 days before the end of the re gl em e nta r y period of


appeal, the date of filing shall be added to the remaining
days of the period. As already stated, the pendency of
suchmotion shall be deducted from, since it suspends, the
r e g l e m e n t a r y pe ri od unl e s s i t fails to sat isfy th e
r e q u i r e m e n t s of Rule 37 (Sec. 2). If th e motion is
thereafter denied, the 3 remaining days of the period shall
start to run again on the day after the receipt of the order
denying the motion (De las Alas, et al. vs. CA, et al., L38006, May 16, 1978; Mayor vs. IAC, et al., G.R. No.
74410, May 4, 1988).
Sec . 7. Answer to supplemental complaint. A
s u p p l e m e n t a l c o m p l a i n t ma y b e a n s w e r e d w i t h i n
te n (10) da y s from not i c e o f th e o r d e r a d m i t t i n g th e
sa m e , u nl e s s a di ffe re n t pe r i o d i s fixed by th e c ou rt .
Th e a n s w e r t o th e c o m p l a i n t s ha l l s e r v e a s th e
a n s w e r t o th e s u p p l e m e n t a l c o m p l a i n t i f n o ne w o r
s u p p l e m e n t a l a n s w e r i s filed, (n)
NOT E
1.This is a new provision which remedies the over sight in the
old Rule which did not provide for an answer to a
supple m e nt a l complaint al t hough the allegations t h e re i n
may very well n e c e s s i t a t e th e a p p r o p r i a t e response,
clarification or denial. Since the filing of a s u p p l e m e n t a l
com pla i nt re qui re s leave of court, the procedure for filing
an answer thereto is similar to the case of an amended
complaint the filing of which is not a m a t t e r of ri ght,
hence likewise re q ui ri n g leave of court therefor (see 2nd
par., Sec. 3 of the Rule). However, unlike the latter, the
court may fix a different period for answering the
suppleme ntal complaint in lieu of the re gl e m e nt a r y 10-day
period. The difference may be ascribed to the fact that in an
amended
complaint,
the facts
sought
to
be
inc orporate d t he re i n were al read y
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S E C S . 8-11

known to but were merely omitted by the pleader and, in


all probability, were likewise known to the defending
party. The supplemental complaint, on the other hand,
seeks the introduction of facts or events which occurred
or supervened after the filing of the original complaint,
hence, for lack of knowledge thereof, the defending
party may need a longer period of time to ascertain and
respond to the allegations thereof.
Sec. 8. Existing counterclaim or cross-claim. A
c o mp u l s o r y c o u n t e r c l a i m or a c r os s- c l a i m tha t a
de f e n di n g party has at the ti me he files his answ e r
shall be c ont ai ne d the rei n. (8a, R6)
Sec. 9. Counterclaim or cross-claim arising after
answer. A c o u n t e r c l a i m or a c r os s-c lai m w hic h ei the
r mat ure d or wa s ac qui re d by a party after ser vi ng his
pl e a di n g may, with the pe r mi s s i o n of the court, be
pr e se nt e d as a c ou nt e r cl ai m or a cross- clai m by
su ppl e me nt a l pl e a di n g before j u dg me n t . (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When
a pl e ade r fails to set up a c ou nt e r cl ai m or a c r os s - c l a i
m t h r ou g h o v e r s i g h t , i n a d v e r t e n c e , o r e xc usa bl e
negl ect, or whe n justi c e requires, he may, by leave of
court, set up the c ou nt e r cl ai m or cross- clai m by
a me n d me n t before judg me nt. (3a, R9)
Sec. 11. Extension of time to plead. U p o n
motion and on suc h te r ms as may be just, the court
may e xte n d th e ti m e to pl ead pr ovi de d in the s e
Rules.
The court may also, upon like ter ms, all ow an
answ e r or other pl e a di n g to be filed after the ti me
fixed by the s e Rules. (7)

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8-11

NOTES
1. Sec. 11 is c omm e nt e d on in the notes unde r Sec. 2 of
this Rule.
2. See the discussion in the notes under Secs. 6 and 7 of
Rule 6 which point out that an after-acquired counte rclai m
or cross-claim may be set up by filing a supple ment al
pleading, while an omitted counterclaim or c ross -cl ai m
may be ra ised in an a m e nde d pl ea di n g pursua n t to and
under the conditions in Secs. 9 and 10 of this Rule.
It is also noted therein that a counterclaim or crossclaim need not be a n s w e r e d if i t is ba se d on or is
inseparable from the defenses raised by the opposing party,
or merely allege the opposite of the facts in the complaint.
Also, where the counterclaim or cross-claim is only for
damages or attorne y' s fees arising from the filing of the
complaint, it need not be answered. These doctrines also
apply to after-acquired or omitted counterclaims and crossclaims subsequentl y allowed by the court to be filed in the
action.

220

RULE 12
BILL OF PARTICULARS
S e c t i o n 1. When applied for; purpose. Before
r e s p on di n g to a pl e adi ng, a party may move for a
more de fi ni te s t a t e me n t or for a bill of par ti cular s
of an y ma tte r w hic h i s not ave r red with sufficient
de f i n i t e n e s s or par ti c ul ar i ty to enabl e hi m properly
to pr e pare his r es pon s i v e pl e a di ng. I f the pl e adi n g
is a reply, th e moti o n mus t be filed within ten (10)
days from ser vi ce thereof. Suc h moti on shall point
ou t th e d e f e c t s c o m p l a i n e d of, th e p a r a g r a p h s
w he rei n the y are c on ta i n e d , and the detai ls de sired,
(la)
NOTES
1. Under this revised Rule, the purpose of a bill of particulars
is to enable the defending party to properly p re p a r e his
re sp on s i v e pl e a di n g . Unde r the former f o r m ul a t i o n , th
e ot he r pu rp os e wa s su pp os e d l y t o enable him "to
pre pa re for trial," but tha t s t a t e m e n t has been
eliminated for being inaccurate. Besides, there are other
and more proper remedies or modes of discovery whereby a
party may chart his course of action for the prospective trial.
2. . W ha t may be c o ns i d e re d as a ra t i o na l e for
requiring a bill of pa rtic ula rs in proper cases is that,
while plea dings should be liberally construed with a
view to substantial justice, courts should not be left to
conjecture in the determination of the issues submitted by
the l i t i ga n t s . Where the pl ea di ng is va gue and
uncertain, courts should not be led to the commission of
error or injustice by exploring in the midst of uncertainty
and di vi ni n g the i n t e nt i o n of the pa r t i e s from the

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ambiguities in the pleadings (Go Occo & Co. vs. De la


Costa, et al., 63 Phil. 445).
3. The granting of a motion for a bill of particulars lies within
the sound discretion of the court and its ruling will not
be reversed unless there was palpable abuse of discretion
or it was a clearly erroneous order. Thus, the Supreme
Court refused to disturb the order of the trial court
dismissing the complaint where plaintiff refused to submit a
bill of particulars despite the court's order therefor, it
appearing that the allegations on the cause of action were
in the na ture of legal conclusions which should have been
clarified by u l t i m a t e facts (Santos vs. Liwag, L-24238,
Nov. 28, 1980).
Sec. 2. Action by the court. Upo n th e filing of
th e m o t i o n , th e c l e r k o f c o u r t m u s t i m m e d i a t e l y
b r i n g i t t o th e a t t e n t i o n o f th e c o u r t w h i c h ma y
e i t h e r de n y o r g r a n t i t o u t r i g h t , o r all o w th e p a r t i e s
th e o p p o r t u n i t y t o b e h e a r d , (n)
Sec . 3. Compliance with order. If th e m o t i o n is
g r a n t e d , e i t h e r i n whol e o r i n pa rt , th e c o m p l i a n c e
t h e r e w i t h m us t b e effec ted w i t h i n te n (10) da y s from
not ic e of th e o r d e r , u nl e s s a d i ffe r e n t pe r i o d i s
fixed b y th e c o u r t . Th e bill o f p a r t i c u l a r s o r a m o r e
de fi ni t e s t a t e m e n t o r d e r e d b y th e c o u r t ma y b e filed
eithe r i n a se pa ra t e o r i n a n a me nde d pleading ,
s e r v i n g a cop y t h e r e o f o n th e a d v e r s e pa r t y , (n)
Sec . 4. Effect of non-compliance. If th e o r d e r is
no t o b e ye d , o r i n cas e o f i n s u ffi c i e n t c o m p l i a n c e
t h e r e w i t h , th e c o u r t ma y o r d e r th e s t r i k i n g ou t o
f th e p l e a d i n g o r th e p o r t i o n s t h e r e o f t o w hi c h th e
o r d e r wa s d i r e c t e d o r m a k e suc h o t h e r o r d e r a s i t
d e e m s just . (l [c ]a )

RULE 12

BILL OF PARTICULARS

SECS. 5-

6 NOTES
1.
These new or amended provisions spell out the
mechanics involved in the obtention of a bill of particulars
and the sanctions for non-compliance therewith. Judicial
experience shows tha t resort to a motion for a bill of
particulars is sometimes actually intended for delay or,
even if not so inte nde d, nonethe less result s in delay
since the re gl e m e nt a r y period for filing a responsi ve
pl eadi ng is suspe nded and the subse que nt exchanges
are likewise set back in the meantime.
2. Sec. 3 is a new provision which is intended to clarify how a
bill of pa rti c ula rs may be filed, tha t is, through either a
sepa rate or an amended pleading. Thus, the former
provision in Sec. 1(b) of the old Rule that a bill of
pa rt i c ul a r s "shall be governed by the rules of pleading and
the original shall be filed with the clerk of court" has been
eliminated in the reproduction of that former provision as
Sec. 6 of the present Rule.
Said Sec. 3 further makes it clear that the motion for
a bill of particulars may be granted in whole or in part
as not all the allegations questioned by the movant are
necessarily so ambiguous as to require clarification.
Sec. 5. Stay of period to file responsive pleading.
After s e r vi c e of th e bill of p a r t i c u l a r s or of a mor e
de f i ni t e p l e a d i n g , o r afte r not i c e o f d e n i a l o f hi s
m ot i on , th e m o vi n g p a r t y ma y file hi s r e s p o n s i v e
p l e a d i n g w i t h i n th e pe ri o d t o whi c h h e wa s e n t i t l e
d a t th e t im e o f filing hi s m ot i on , whic h shal l no t b
e less t ha n five (5) da y s in an y e ve nt . (l[b ]a)
Sec . 6. Bill a part of pleading. A bil l of
p a r t i c u l a r s be c om e s pa r t o f th e p l e a d i n g for whic
h i t i s i n t e n d e d . (l [a]a)

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NOTES
1. As understood under Sec. 1 of this Rule, a motion for a bill
of p a r t i c u l a r s mus t be filed w i t h i n th e r e gl e m e n t a r y
period for the filing of a r e s p o n s i v e plea ding to the
pl eadi ng sought to be clarified. This contemplates
pleadings which are required by the Rules to be a nswe re
d unde r pain of pr oc e du ra l sa nc t i on s , such as default or
implied admission of the facts not responded to. A special
provision regarding a vague reply is included in Sec. 1, that
is, that a motion for a bill of pa rtic ula rs directed to a reply
must be filed within 10 days, since a responsive pleading
is not required for a reply as, in fact, the filing of the
reply itself is optional or permissive (see Sec. 6, Rule 11
and notes thereon).
2. This specification of a reply took the place of the former
provision which merely provided for tha t 10-day period if
the pleading sought to be clarified is one to which "no
re sponsi ve plea di ng is pe r m i t t e d by these rules." That is
in itself correct but may be susceptible of mi sunde rst a ndi n g
since there are other pleadings evolved and sa nc t i one d by
practi ce as re spon si ve pl ea di n gs, which are of American
vintage but not expressly provided for in our Rules.
Thus, after the reply, there can be a rejoinder with
a sur-rejoinder and then a rebutte r with a sur-rebutte r.
If these subsequent pleadings are allowed by the court,
as responsive pleadings which are not required but at
least authorized, then it would be logical for it to fix a
period for the filing of a motion for a bill of particulars
whenever the same is necessary to make more definite
the allegations in said pleadings.
3. . Judicial experience, however, reveals that resort to the
filing of rejoinders and sur-rejoi nders
or
other
subsequent pleadings were often resorted to for dilatory
purposes, with the parties intentionally leaving incomplete

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S E C S . 5-6

their antecedent pleadings in order to justify the grant of


leave to file said subsequent pleadings.
Consequently, the Supreme Court resolved in A. M.
No. 99-2-04-SC to di sp e n s e wit h re j oi nde r s and to
substitute a different procedure to subserve the purpose
of affected parties on a more meaningful and productive
process designed to enhance and expedite judicial action
on the case (see Appendix R).
4. The filing of a motion for a bill of pa rt ic ul a rs interrupts the
time to plead, but only if it is sufficient in form and
s ub st a nc e . Fu r t h e r m o r e , the motion mus t comply with
Secs. 4 and 5, Rule 15 on the service and contents of the
notice of motions (Filipinos Fabricators & Sales, Inc. vs.
Magsino, et al., L-47574, Jan. 29, 1988), which provisions
have been substantiall y reproduced in the pre se nt
revised Rule 15.
5. If the motion is gra nte d, the movant can wait until the bill
of particulars is served on him by the opposing pa rt y an d
the n h e will hav e th e ba l a nc e o f th e re gl eme ntar y
period within which to file his responsive pleading. If his
motion is denied, he will still have such balance of the
re gl eme ntar y period to do so, counted from service of the
order denying his motion. In either case, he will have at
least 5 days to file his responsive pleading.
6. Regarding the availability and the role of a bill of
particulars in criminal cases, see Sec. 9, Rule 116 and the
notes thereon.

RULE 13
FILING AND SERVICE OF PLEA DIN GS,
JUD GM EN T S AND OTHER PAPERS
Sec ti o n 1. Coverage. This Rule shall g ove r n
the filing of all pl e a di n g s and other pa pe r s, as well
as th e s e r v i c e the reof, e xc e p t thos e for w hi c h a
di fferent mod e of se r vic e i s prescr i be d, (n)
Sec. 2. Filing and service, defined. Fili ng is the
act of pr e s e n t i n g the pl e a di n g or other pape r to the
cler k of court.
Ser vi c e is the act of pr ov i di n g a party wit h a
cop y of th e p l e a di n g or pape r c o n c e r n e d . I f an y
party ha s a ppe are d by c ounse l , se r vic e upo n hi m
shal l b e mad e upo n hi s c o u n s e l o r on e o f the m ,
unl e s s ser vi ce upo n the party hi mse l f i s or de re d by
the court. Where on e c ounse l a ppe ar s for se ve r al
par ti e s, he shall only be e nti tl e d to on e cop y of any
pape r ser ve d upo n hi m by the opposi t e side. (2a)
NOTES
1. It is the duty of counsel to adopt and strictl y maintain a
system that efficiently takes into account all court notices
sent to him. His failure to do so cannot excuse him from
the consequences of his non-receipt of court notices
(Babala vs. CA, et al., L-23065, Feb. 16, 1970; Republic vs.
Arro, et al., L-48241, June 11, 1987; Antonio, et al. vs. CA, et
al., G.R. No. 77656, Aug. 31, 1987). An attorne y of record
must notify the court of his change of address. The fact that
counsel used a different address in later pleadings does not
constitute the notice re qui re d for i ndic a ti n g his change of
a dd re s s (Phil. Suburban Dev. Corp. vs. CA, et al., L-33448,
Sept. 17, 1980).
See also Sec. 3, Rule 7 and the notes
the reunde r.
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FILING AND SERVICE OF PLEADINGS,


2 JUDGMENTS AND OTHER PAPERS

SECS 1-

2. Notice given to a part y who is duly represented by counsel


is a nullity (Inocando vs. Inocando, 110 Phil. 266; Elli vs.
Ditan, L-17444, June 30, 1962; Republic vs. Arro, et al.,
supra; Antonio, et al. vs. CA, et al., supra), unless service
thereof on the party himself was ordered by the court or
the technical defect was waived (National Lumber & Hardware
Co. vs. Manaois, 106 Phil. 1098; Jalover vs. Ytoriaga, L35989, Oct. 29, 1977; De Leon vs. CA, et al, G.R. No.
138884, June 6, 2002).
3. Where notice of the decision was served on the receiving
station at the ground floor of the defendant ' s company
building, and received much later at the office of its
legal counsel on the ninth floor of said building, which was
his address of record, service of said decision takes effect
from said later receipt at the aforesaid office of it s le gal
c ou ns e l (PLDT vs. NLRC, et al, G.R. No. 60050, Mar.
26, 1984). However, where counsel who had their office on
the third floor of the building had virtuall y acquiesced to
service of pl ea di ngs on the m through a corporation on the
ground floor of the building by not objecting to previous
service through the latter, subseque nt service in such
manne r is valid (PCIB vs. Ortiz, et al., L-49223, May 29,
1987).
4. Where a party is represented by more than one counsel of
record, service of notice on any of the latter is sufficient
(Damasco vs. Arrieta, L-18879, Jan. 31, 1963). Service on
counsel of record is notice to the party unless the
irresponsibilit y of such counsel denies the party of his
day in court (PHHC vs. Tiongco, et al, L-18891, Nov.
28, 1964).
5. In criminal cases, notice to the prosecution is made on the
fiscal and the private prosecutor is deemed constructively
notified thereof (Buro vs. Montesa, et al,
87 Phil 245). The court, of course, could also cause a
copy thereof to be served on said private prosecutor.

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Sec. 3. Manner of filing. The filing of ple ad


ings , a p p e a r a n c e s , mo t i o n s , n ot i c e s , or de rs ,
j u dg me n t s and all other pa per s shall be mad e by
p r e s e n t i n g th e o r i g i n a l c o pi e s the reof , p l a i n l y
i n di c ate d as such, pe r sonal ly to the cler k of court
or by se n di n g the m by regi ste re d mail. In the first
case, the clerk of court shall e n dor se on the pl e adi ng
the date and hou r of filing. In the sec on d case , the
date of the ma i l i n g of moti on s , pl e a di n g s , or any
other pa per s or pa y me nt s or de pos i t s , as sh ow n by
the post office stam p on the e nve l op e or the registry
rec ei pt , shal l b e c o n s i de r e d a s th e dat e o f thei r
filing, pay me nt , or de posi t in court. The e nve l op e
shall be attac he d to the rec ord of the case, (la )
NOTES
1. The clerk shall keep a general docket, each page of which
shall be numbered and prepared for receiving all the
entries in a single case and shall enter therein all cases,
numbered consecutively in the order in which they were
received and, under the heading of each case and a
complete title thereof, the date of each paper filed or issued,
of each order or judgm ent entered, and of each other step
ta ken in the case, so tha t by reference to a single page the
history of the case may be seen (Sec. 8, Rule 136).
2. .
Unde r thi s secti on, filing by mail should be
through the registry service which is made by deposit of
the pleading in the post office, and not through other
means of tra nsmissi on. Thus, the date of delivery of the
p l e a d i n g s to a p r i va t e l e t t e r -f o r w a r d i n g a ge nc y or
pri va t e ca rrie r, even i f licensed to act as such with
re spect to ot he r articles, is not a recognized mode of
filing pl e a di n gs which can only be done throu g h the
Philippine Government Post Office or its postal agencies. If
a pri vate carrier is availed of by the part y, the date of

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6 JUDGMENTS AND OTHER PAPERS

actual receipt by the court of such pleading, and not the


date of delivery to the carrier, is deemed to be the date of
the filing of that pleading (Benguet Electric Cooperative,
Inc. vs. NLRC, et al., G.R. No. 89070, May 18,
1992;
Industrial Timber Corp. vs. NLRC, et al., G.R. No. 111985
June 30, 1994).
Sec. 4. Papers required to be filed and served.
E v e r y j u d g m e n t , r e s o l u t i o n , or de r , p l e a d i n g
s u bs e qu e n t to the complaint, w ritte n moti on, notice,
a p pe a r a nc e , de ma n d , offer of ju dg me n t or si mi lar
pa pe r s shal l be filed wit h the c our t s and se r ve d
upon th e par ti e s affecte d. (2a)
Sec. 5. Modes of service. Ser vi ce of pl e a di ng s,
m o t i o n s , n o t i c e s , o r d e r s , j u d g m e n t s an d ot h e r
pape rs shall be mad e e i the r pe r sonal ly or by mail.
(3a)
NOTE
1. Aside from personal service or by mail, service of
pleadings may also be effected by substituted service
(Sec. 8) and judgments, final orders or resolutions may
be served by publication (Sec. 9), but the last mode is
proper only where the summons on the defendant had also
been served by publication.
Sec. 6. Personal service. Se r vic e of the pa per s
may be made by de l i ve r i n g pe r s on all y a copy to the
party or his c ounse l , or by l e avi ng i t in his office
wit h hi s c le r k o r w it h a pe r s o n h a v i n g c h ar g e
thereof. If no pe rson is found in his office, or his
office i s not kn ow n , or he has no office, the n by
l e a vi n g th e copy, b e t w e e n the h our s o f e i gh t i n
the mor ni n g and six in the e ve ni ng, at the party' s
or c ounse l ' s r es i de n c e , if kn ow n , with a per son of

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sufficie nt age and di sc reti on the n resi di n g the rei n.


(4a)
NOTE
1. This section has been ame nde d to include the
situation where counsel has no office, and not only where his
office is unknown or there is no person in charge thereof.
Under such circumstances, service may be made not only at
the residence of the party he represents but, now, also at
counsel's residence, it being assumed that his residence
is also used by him as his office. In any of said cases, this
section now requires that if not served o n e i t he r th e
pa rt y o r counse l pe r s o n a l l y t h e r e i n , service should be
made not only on a person of sufficient discretion but
likewise of sufficient age and who must further be actually
residing therein. The additional age requi reme nt is
intended to make it easier to ascertain whether the person
to whom the pleading was entrusted is one with sufficient
discretion. Also, the re quirem ent tha t he should be a
resident therei n is to obviate the possibility or the pretext
that service was made only on a visitor or any person who
happened to be in the residence
for a tra nsient or
temporary purpose.
Sec . 7. Service by mail. Ser vi c e by r eg i s te re d
mail shall be mad e by de p o s i t i n g the cop y in the
post office, in a se ale d e n v e l o pe , pl ai nly a d dr es s e d
to the party or his c ou nse l at his office, i f kn ow n ,
ot h e r w i s e at his re si de nc e , i f kn ow n , wit h postag e
full y p r e - p a i d , an d w i t h i n s t r u c t i o n s t o th e
p os t ma s t e r to return the mail to the se nde r after
ten (10) day s i f un de l i ve r e d . If no regi stry ser vi ce is
avai l a bl e in the locality of ei the r the se nde r or the
a d d r e s s e e , ser vi ce may be don e by or di nar y mail.
(5a) (As amended by Resolution of the Supreme Court,
dated Feb. 17, 1998)

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NOTE
1.

See Note 2 under Sec. 6, Rule 11.

Sec. 8. Substituted service. If s e r v i c e of


pl e a di n g s , moti on s , notic e s, re s ol u ti on s , or de rs and
o t h e r p a p e r s c a n n o t b e ma d e u n d e r th e tw o
pr e c e di n g se c ti on s , the office and place of r es i de n c e
of th e party or hi s c ounse l be in g un kn ow n , ser vi ce
may be mad e by de l i ve r i n g th e copy to the cler k of
court, wit h pr oof of fail ure of both pe r sona l se r vic e
and ser vi ce by mail. The ser vi ce i s c ompl e t e at the
ti me of suc h de l i ve ry. (6a)
NOTES
1. Where the counsel of record has not withdrawn as such,
service of the judgment on his wife at their residence is
valid personal service (Cubar vs. Mendoza, G.R. No.
55035, Feb. 23, 1983).
2. "Substituted service" as applied to pleadings in the above
section has a different meaning from "substi tuted service"
as applied to summons, Rule 14 providing as follows:
"Sec. 7. Substituted service. If, for justifiable
cau se s , the de f e n dan t cannot be serve d w ithi n a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's dwelling house or residence
with some person of suitable age and discretion then
resi di ng the rei n , or (b) by le avi ng the copies at
defendant's office or regular place of business with some
competent person in charge thereof. (8a)"
Sec. 9. Service of judgments, final orders or resolu
tions. J u d g me n t s , final or der s or r es ol ut i on s shall

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SE C . 9

be serve d ei the r pe r s on all y or by re gi st e r e d mail.


When a party s u mmo ne d by pu bl i c ati on ha s faile d
to appe a r in the ac ti on, j u dg me n t s , final or de rs or
re s ol u ti on s agai ns t hi m shall b e ser ve d upo n hi m
also by pu bl i c ati on at the e xpe n s e of th e pr ev ai l i n g
party. (7a)
NOTES
1. A judgment or final order served by ordinary mail does not
become executory since the service is fatally defective
(Vda. de Espiritu vs. CFI of Cavite, et al., L-30486, Oct. 31,
1972). Per sonal service of such judgment upon the
party, instead of his counsel of record, is not permitted.
Also, where a copy of the decision is served on a person who
was neither a clerk nor one in charge of the attorney's
office, such service is invalid and the decision did not
thereafter become executory (Tuazon, et al. vs. Molina, et
al., G.R. No. 55697, Feb. 26, 1981).
2. The mere notation in the rollo that a copy of the resolution
was sent to counsel, absent a showing of his receipt thereof,
does not constitute proof of service (Soria vs. CA, L-36378,
April 7, 1976).
3. For constructive service by registered mail, there must be
conclusive proof that a first notice by the post master to the
addressee was received. The presumption that official
duty has been
performed
does
not
apply
(ITT
Philippines, Inc. vs. CA, et al., L-30810, Oct. 29, 1975;
Barrameda vs. Castillo, L-27211, July 6, 1977; Elane vs.
CA, et al., G.R. No. 80638, April 26, 1989). If, however, the
postmaster certifies that such
notice
was sent, the
presumption arises and overrides the contrary claim of the
addressee (Ferraren vs. Santos, L-41323, April 27, 1980).
Where the delivery of the first notice was not made
because the "addressee was unlocated," there is no
substitute d service (Arines vs. Cuachin, L-30014, July 31,
1978).
But where a copy of the

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decision was sent to counsel at his address of record


but the same was not received because he moved to
another address without informing the court thereof,
such omission or neglect will not stay the finality of the
decision (Magno, et al. vs. CA, et al., G.R. No. 58781
July 31, 1987).
4.Judgments, final orders or final resolutions can be served
only under the three modes authorized in this section, that
is, personally, by registered mail or by publ ic ati on. They
cannot be served by su bs ti tute d service. With respect to
service by publication, the rule is that resort thereto is
proper only where summons was likewise served by
publication, and this can result in practical problems
especially in the appellate courts. If, for i nstanc e, it has
been ascertaine d that a party's counsel is dead or has
permanently left the country and withdrawn from the case
without a substitute counsel having entered his
appearance, and the whereabouts of the party represented
by him can neither be ascertained nor the fact thereof
obtained from the opposing party, and summon s in that
case had not been serve d by publication, then service of
the judgment by publication is not authorized and would
not be valid. As just stated, substituted service can not be
availed of. The logical solution would be to authorize the
trial court to effect service of the judgment by publication,
otherwise entry and execution of that judgment would be
void.
5. What is authorized or required to be served by publication
under the third mode in this section is the judgment, final
order or resolution. To avoid absurd or impractical results,
only the dispositive portion or the fallo should be
required to be published, and not the entire text of the
decision or resolution which may be volu mi nous and will
entail substanti al publication expenses. In other words,
the term "judgment" must be that contemplated in Rule
36. The prevailing party

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SE C . 10

may, for reasons of his own, cause the publication of


the whole decision since after all the same shall be at
his expense.
Sec. 10. Completeness of service. P e r s o n a l
se r vic e i s c ompl e t e upo n actual de l i ve ry. Ser vi ce
by or di nary mail i s c ompl e t e upo n th e e xpi r a ti o n
o f te n (10 ) day s after ma i l i n g , u n l e s s th e c our t
o t h e r w i s e pr ovi de s. Ser vi c e by re gi st e r e d mail i s
c ompl e t e upo n ac tua l rece i p t by th e a d d r e s s e e , or
after five (5) day s from th e dat e he r e c e i v e d th e
first notic e o f th e p o s t ma s t e r , w h i c h e v e r dat e i s
earlie r. (8a)
NO TES
1. This section, as amended, now provides for 10 days,
instead of the former 5 days, for completeness of service by
ordinary mail. For service by registered mail, the
completeness thereof is now reckoned from the date of
actual receipt of the first notice of the postmaster, unless
the registered mail was received prior thereto.
2. The rule on completeness of service by registered mail only
provides for a disputable
presumption
and may,
therefore, be rebutted (Cabuang vs. Bello, 105 Phil. 1135). For
the rule to apply, service must have been made on the
counsel de parte (Fojas vs. Navarro, L-26365, April 30, 1970)
and if it was sent to his address of record and he fails to
receive it for causes imputable to him, the service
becomes final and it is not necessary to effect further
service upon the party he represents (Magno, et al. vs.
CA, et al., supra).
3. Service of notice by registered mail cannot be avoided by
counsel's refusal to accept delivery after notificati on
thereof, and notice is dee me d complete regardless of
such refusal to accept (Isaac vs. Mendoza,

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11-1 2

89 Phil. 279).
4. When the post office certifies to the delivery of registered
mail, such certification should include data as to w he n ,
how and to whom del ivery wa s made (Hernandez, et al.
vs. Navarro, et al, L-28296, Nov 24 1972).
5. For failure of petitioners to claim a copy of the resolution
denying due course to their petition within
5 days from notice, service became effective after the fiveday period and the finality of said resolution is reckoned
therefrom, pursuant to Sec. 8 (now, Sec. 10), Rule 18
which is applicable to said resolution of the appellate
court (Aportadera, et al. vs. CA, et al, L-41358, Mar. 16,
1988).
Sec. 11. Priorities in modes of service and filing.
W h e n e v e r p r a c t i c a b l e , th e s e r v i c e an d fi l i n g o f
pl e a di ng s and othe r pa per s shall be done personally.
E xce pt wit h r es pe c t t o pa pe r s e ma n a t i n g from the
court, a resor t to othe r mode s mus t be ac c ompa ni e d
by a w r i tt e n e xp l a n a t i o n wh y the ser vi ce or filing wa
s not don e pe r sonal ly. A vi ol ati on of thi s rule may
be cau s e to c on si de r the pa per as not filed, (n)
Sec . 12. Proof of filing. The filing of a pl e adi n g
or pa pe r shal l be pr ov e d by its e xi s t e n c e in th e
recor d of th e case . If i t i s not in th e rec ord, but i s
c l ai me d t o hav e be e n filed pe r s on a l l y , th e fi l i n g
s h a l l b e p r o v e d b y th e w r i t t e n o r s t a m p e d
a c k n ow l e d g me n t of its filing by the clerk of court
on a cop y of th e same; i f filed by regi ste re d mail, by
th e r e g i s t r y r e c e i p t an d b y th e affi davi t o f th e
p e r s o n wh o di d th e m a i l i n g , c o n t a i n i n g a full
st at e me n t of th e date and place of de pos i t i n g the
mail in the post office in a seale d e nve l ope addresse d
to the court, wit h pos tage fully pre-pai d, and wit h

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i n st r u c ti on s to the p os t ma s t e r to retur n th e mail


to the se n de r after ten (10) day s i f not de l i ve re d, (n)
NOTES
1. Sec. 11, which is a new provision, fills a long standing need
to curb the practice of delaying the receipt of a pleading
by a part y through the simple expedient of se rvi ng the
same by mail. A simple and common e xam pl e would be
in th e m a t t e r of m oti on s wit h a requested date of hearing,
and a copy whereof is mailed with the intent to have the
same received by the adverse party after the hearing
thereof. Extreme situations even obtain in Metro Manila
wherein the copy of the motion is mailed in a post office in
some other component city or municipality of the
metropolitan area, although the law firms repre se nting the
pa rtie s are just across the street from each other in the
same city or, worse, are in the same building. This section
may be considered, not only as providing a procedural
sanction for such duplicity, but as also laying a basis for
admini st rati ve disciplinary
action
for professional
malpractice. See also related provisions, geared toward the
same objective, in Sec. 3, Rule 7 and Sec. 4, Rule 15.
2. When the service is not made personally, there mus t be a
w ri t t e n expl a na t i on therefor, even if such expl a na t i on is
by its na t ur e acceptable and manifest. This re quirem ent
is intended to emphasize tha t personal service is the rule,
while the other modes of service are th e exc e pt i ons
(Zulueta vs. Asia Brewery, Inc., G.R. No. 138137, Mar. 8,
2001). Where no e xpla na ti on is offered to justify the
service of pleadings by other modes, th e di sc ret i ona r y
power of the court to expung e the pleading becomes
mandatory (United Pulp and Paper Co., Inc. vs. United Pulp
and Paper Chapter, etc., G.R. No. 141117, Mar. 25, 2004).

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3. The fact that an affidavit of service accompanied the


pe ti t i o n i s not s u b s t a n t i a l com plia nce wit h th e
requirement in Sec. 11. An affidavit of service is required
merely as proof tha t service has been made to the other
pa rtie s in the case. It does not, however, explain why
alternative modes of service other than personal service
were resorted to (MC Engineering, Inc. vs. NLRC, et al.,
G.R. No. 142314, June 28, 2001).
4. . Thi s R ule , an d its pre de c e s so r , had a l wa y s
provided for proof of service of pleadings, but had not
made an e q ui va l e n t provision for proof of th e filing
thereof. Yet, similar controversies also arise re garding the
validit y, timeliness and sufficiency of the
filing of the
pleading just like the matte r of the service thereof, hence
these complementary provisions of Sec. 12.
Sec. 13. Proof of service. P r oo f of p e r s o n a l
se r vic e shall c on si s t of a w ri tte n a d mi s si o n of the
party ser ve d, or th e official return of the server, or
the affidavit of th e party ser vi ng, c on t a i n i n g a full
s t a t e me n t of th e date , place and ma nne r of ser vice .
If the ser vi ce i s by or di nar y mail, proof the reof shall
c onsi s t of an affidavit of the pe r so n mai l i n g of facts
s h ow i n g c o m pl i a n c e wit h sec ti o n 7 of thi s Rule. If
service i s mad e by regi ste red mail, proof shall be
mad e b y suc h affi davi t an d th e re gi st r y r ec e i p t
i ssue d by th e ma i l i n g office. The regi stry return
card shall be filed i mme di at e l y upo n its rec ei pt by
the se n de r , or in lieu the re o f the u nc l ai me d letter
t oge th e r w it h th e ce r ti fi e d o r sw or n cop y o f th e
notice gi ve n by th e p os t ma s t e r to the a d dr es s e e .
(10a)
NOTE
1. The provision of this section on proof of service
of pleadings by registered mail is also applicable to the
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matter of proving that a copy of the summons was sent


by re gi st ere d mail to a de fe nda nt whe re the same is
required as an integral complement in the service of such
summons by publication. See Secs. 7 and 15, Rule 14,
and the comments there under.
Sec. 14. Notice of lis pendens. In
an
ac t i o n
affec ti ng the title or the right of p o s s e s s i o n of real
p r ope r t y , th e pl a i n ti f f an d th e d e f e n d a n t , w he n
a ffi r mat i v e reli e f i s c l ai me d i n hi s a n s w e r , ma y
rec or d in the office of th e regi str y of de e d s of the
pr ovi nc e in w hi c h th e pr ope r ty i s si tuate d a notic e
o f th e p e n d e n c y o f th e ac ti on . Sai d n oti c e shal l
c ontai n th e na me s o f th e par ti e s and th e object o f
th e ac t i o n o r d e f e n s e , an d a d e s c r i p t i o n o f th e
pr ope r t y in tha t pr ovi nc e affecte d the reby . Only
from th e ti m e of filing suc h n oti c e for rec or d shall
a p u r c h a s e r , o r e n c u m b r a n c e r o f th e p r o p e r t y
affec te d the reby , b e de e me d t o hav e c o n s t r u c t i v e
notice of th e pe n d e n c y of th e ac ti on, and only of its
p e n d e n c y ag ai n s t th e par ti e s d e s i g n a t e d b y thei r
real na me s .
Th e n o t i c e of lis pendens
hereinabov e
me n t i o n e d ma y b e c an c e l l e d only upo n or de r o f th e
court, after prope r s h ow i n g tha t th e notic e i s for
th e p u r p o s e o f m o l e s t i n g th e a d v e r s e par ty , o r
tha t i t i s no t n e c e s s a r y t o p r ot e c t th e r i g h t s o
f th e par ty wh o cau se d i t to be re c or de d . (24a, R14)
NOTES
1. A notice of lis pendens, under the circumstances and the
conditions provided in this section, may be recorded at the
instance of the interested part y at any time during the
pende nc y of the action and not necessaril y at the time of
the filing of the complaint or the answer of the part y
concerned.

RUL E 1 3

F IL IN G A N D S E R V I C E O F P L E A D I N G S ,
4 J U D G M E N T S A N D OT HE R PAP E R S

SE C . 1

2. A notice of lis pendens is intended to protect the real rights of


the part y who caused the registration thereof (Natano vs.
Esteban, L-22034, Oct. 28, 1966). It serves as a wa rni n
g to prospecti ve e nc um bra nce rs or purc ha se r s tha t they
should keep their hands off the property unless the y wish
to gamble on the result of the litigation involving the
same (Bisaya Land Trans. Co., Inc. vs. Cuenco, L-18173,
April 22, 1968; Laroza, et al. vs. Guia, L-45252, Jan. 31,
1985; cf. Tanchoco, et al. vs. Aquino, et al., L-30670, Sept.
15, 1987). The part y who had the notice a n no t a t e d and
who won the litigation over the propert y has the be tter
right as a ga inst one who bought it with such a n no t a t i o n
(Heirs of Maria Marasigan vs. IAC, et al., G.R. No. 69303,
July 23, 1987).
3. Where the notice of lis pendens is limited to a one-half
undivided interest in the property in litigation, the owner
of th e othe r half ha s the ri ght to sell his u n di vi d e d pro
indiviso s ha r e (Mercado vs. Viardo, L-14127,
Aug.
21,
1962).
4. A notice of lis pendens cannot be ordered to be cancelled on an
ex parte motion. There should be notice to the part y who
caused such notice to be recorded so tha t he may be
he a r d to show to the court tha t the notice of lis pendens
is necessary to protect his rights and is not for th e
purpose of molesting the a dve rse part y (Punongbayan
vs. Pineda, et al., G.R. No. 58193, Aug. 30, 1984). A
notice of lis pendens c a nno t be ordered to be cancelled
upon the mere filing of a bond by the party on whose title
the notice is annotated, as this sec t i on pro vi de s for only
two i n s t a nc e s whe n such cancellation
may
be
authorized (Tan, et al. vs. Lantin, et al., L-28526, July
7, 1986).
5. However, under exceptional circumstances, the court can
order th e ca ncella tion of the notice of lis pendens
e s pe c i a l l y whe r e suc h c i r c u m s t a n c e s ar e imputable to
the party who caused the annotation of said

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SE C . 14

notice, as where the litigation was undul y prolonged to


th e p re j u d i c e of th e de f e n d a n t be c a u s e of s e ve r a l
continuances procured by the plaintiff (Mun. ofParahaque
vs. Rovira, 55 Phil. 1000). Also, where the case which is
the basis for the lis pendens notation was dismissed for nonprosequitur on the part of the plaintiff (Lazaro vs. Mariana,
59 Phil. 627), or judgm ent was rendered against th e pa rt
y who c a use d th e r e c o r di n g o f sai d notice (Capitol
Subdivision, Inc., et al. vs. Montelibano et al., 109 Phil.
546), said notice is deemed ipso facto cancelled.
6. Lis pendens is a Latin term which literally means a pending
suit or litigation, while a notice of lis pendens is an
announcem ent to the whole world tha t a pa rtic ula r real
propert y is in litigation, serving as a wa rni ng that one
who ac qui re s an int e re s t over th e said prope rt y does
so at his own risk. It is a rule founded upon reasons of
public policy and necessity.
As such, a notice of lis pendens cannot conceivably
be the lien or encumbrance contemplate d by law. A lien
is an existing burden or charge on the propert y, while
a notice of lis pendens is only a warning tha t a claim or
possible charge on the propert y is pending de te rm i na t i on
by the court. Not all claims against a propert y can be
c onsi de re d as liens wi t hi n th e c o nt e m pl a t i o n of law
(People vs. RTC of Manila, etc., et al., G.R. No. 81541,
Oct. 4, 1989).
7. A notice of lis pendens is proper only where there is an
action or proceeding in court which affects the title to or
possession of real prope rt y (Dino vs. CA, et al.,
G.R. No. 95921, Sept. 2, 1992). It is essential tha t the
property be directly affected, as where the relief sought in
the action includes the recovery of possession, or the
enforcement of a hen, or an adjudication between conflicting
claims of title, possession, or right of possession of specific
real property, or requiring its transfer or sale (Register
of Deeds vs. Mercado, 72 Phil. 353).

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4 J U D G M E N T S AN D OT HE R PAP E R S

SE C

8. In Alberto vs. CA, et al. (G.R. No. 119088 , June 30,


2000), it was further clarified that the rule of lis
pendens likewise applies to all suits or actions which directly
affect not only the title to real property, but also those which
are brought to establish an equitable estate, interest or
right in specific real propert y or to enforce any lien,
c ha rg e or e n c u m b ra n c e a ga i ns t i t a ri si n g during th e
pro gre ss of the suit. I t is also proper in proceedings to
declare an absolute deed of mortgage, or to redeem from
a foreclosure sale, or to establish a trust, or t o s u i t s for
th e s e t t l e m e n t an d a d j u s t m e n t of pa rt nership interests
in real propert y.
9. However, where the complaint merely asks for the pa ym ent
of construction services and materials, with damages, but
does not assert any encumbrance over the property on
which the unpaid constructions were made, the annotation
of a lis pendens on the land is not proper. It is only a
personal action for collection, without any averment of any
enforceable right, interest or lien upon the subject
propert y.
Even if the contractor' s lien under Art. 2242 of the
Civil Code had been alleged in favor of plaintiff, still the
desired annotation would be unjustified as a collection case
is not the proper mode for the enforcement of a contractor's
lien. Furthermore, said Art. 2242 finds application only
where there is a concurrence of credits and a showing
tha t de fe nda nt ' s prope rt y was insufficient to pay the
concurring debts, or tha t the claim was in connection
with insolvency or other actions where claims of preferred
credit ors have to be a sc e rt a i ne d (Atlantic Erectors,
Inc. vs. Herbal Cove Realty Corp., G.R. No. 148568,
Mar. 20, 2003).
10. For a further discussion of the other legal aspects and
effects of a notice of lis pendens, see Romero vs. CA, et al.
(G.R. No. 142406, May 16, 2005).

RULE 14
S UM M O N
S
Sec ti o n 1. Clerk to issue summons. Upo n th
fi li n g o f th e c o m p l a i n t an d th e p a y me n t o f th
r e q u i s i t e l e g a l f e e s , th e c l e r k o f c o u r t s h a l
f or thw ith i ssu e th e c or r e s p o n di n g s u m mo n s t o th
de fe n da nt s , (la )

e
e
l
e

Sec. 2 . Contents. Th e s u m m o n s s h a l l be
di re c t e d t o th e de f e n dan t , si gne d b y th e cler k o f
c our t un de r seal, an d c ontai n: (a) th e nam e of th e
c our t an d th e na me s of th e par ti e s to th e ac ti on; (b)
a di r ec ti o n tha t th e de fe n da n t a nsw e r w i thi n th e
ti me fixed by thes e Rules; and (c) a notic e that unl e s s
th e d e f e n d a n t s o a n s w e r s , p l a i n t i f f w i l l t a k e
j u dg me n t by de faul t an d ma y be gr ante d th e relief
a ppl i e d for.
A c o p y o f th e c o m p l a i n t an d o r d e r for
a p p o i n t me n t of gu ar di a n ad litem, if any, shall be
a t t a c h e d t o th e o r i g i n a l an d e a c h c op y o f th e
s u mm o n s . (3a)
NOTES
1. Jurisdic tion cannot be acquired over the defen dant wit hout
service of summons, even if he knows of the case
against him, unless he voluntaril y submits to the
jurisdiction of the court by appearing therei n as through
his counsel filing the corresponding pleading in the case
(Habana vs. Vamenta, et al., L-27091, June 30, 1970).
Even if jurisdiction over him was not originally acquired
due to defective service of summons, the court acquires
jurisdict ion over his person by his act of subseque ntl y
filing a motion for reconsideration (Soriano vs. Palacio, L17469, Nov. 28, 1964), or by joi ntl y s u b m i t t i n g a
242

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S E C S . 1-2

compromise a gre em e nt for approval of the trial court


(Algrabe vs. CA, et al., L-24458-64, July 31, 1969), or
where he signed the compromise agreement to guarantee
the pa yme nt of the obligation of the impleaded defendants
and said agreement was approved and was made the basis
of the j ud gm e n t on compromise (Rodriguez, et al. vs.
Alikpala, et al, L-38314, June 25, 1974). But where the
d e f e n da n t died before th e filing of th e a ct i o n an d
s um m on s wa s se rve d on his co-defe nda nt , th e court
never acquired jurisdiction over the former and judgme nt
as to him is a nullity. The deceased has no more civil
p e r s o n a l i t y an d eve n th e vo l u n t a r y a p p e a r a n c e o f
counsel for him will be ineffective (Dumlao vs. Quality
Plastic Products, Inc., L-27956, April 30,
1976).
2. The failure to attach a copy of the complaint to the
summ ons (Pagalaran vs. Ball at an, et al., 13 Phil.
135) or a copy of the order appointing a guardian ad litem
(Castaho vs. Castano, 96 Phil. 533) are
mere technical
defects and the service of summons vests jurisdiction in
th e c our t over th e d e f e n da n t who may t h e r e b y b e
declared in default for failure to file an answer.
3. .

Where the de fe nda nt has already been served with


s um m on s on th e ori gi nal complaint, no furt he r sum mon
s is re qui re d on the am e nde d complaint if i t does not
introduce new causes of action (Ong Peng vs. Custodio,
L-14911, Mar. 25, 1961); bu t whe r e th e de f e n d a n t wa
s de c l a r e d i n de fa ul t on th e ori gi na l complaint and the
plaintiff subsequently filed an amended complaint, new
summons must be served on the defendant on the amended
complaint
as
the
original complaint was deemed
withdrawn upon such ame ndme nt (Atkins, Kroll & Co.
vs. Domingo, 44 Phil. 680).

4. .

F u r t h e r m o r e , i f th e de f e n d a n t ha d not yet
appeared by filing adversary pleadings and an amended
complaint introducing new causes of action is filed, a

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S E C S . 3- 5

new summons must be served upon him as regards the


amended complaint; otherwise, the court has no power
to try the new causes of action. Simply sending a copy
of the amended complaint to him, under such circum
stances, is not equivalent to service of summons thereon.
Howe ver, i f th e de f e n da n t had a l re a d y a pp e a re d in
re spon se to th e first summ on s by filing a motion to
dismiss or an answer, he was, therefore, already in court
when the amended complaint was filed, in which case
mere service of th e am e nde d c om pl a i nt upon him i s
sufficient wi t ho u t th e need for new s u m m o n s to be
served (Ong Peng us. Custodio, supra).
Sec . 3. By whom served. The s u mm o n s ma y be
ser ve d by the sheriff, his de puty , or othe r pr ope r
c our t off i c e r s , o r for j u s t i f i a b l e r e a s o n s b y an y
sui tabl e pe r so n a ut h or i z e d by th e cour t i s s u i n g the
su mmon s . (5a)
Sec. 4 . Return. Whe n th e s e r v i c e ha s be e
c o m p l e t e d , th e se r ve r shall , w i t h i n five (5) day
th e r ef r om , ser ve a cop y of th e retur n pe r s on a l l
or b y r e g i s t e r e d mail, t o the p l a i n t i f f s c ou ns e l , an
shall retur n th e s u m m o n s t o th e cler k wh o i ssue
it, a c c o m p a n i e d by pr oof of se r vic e . (6a)

n
s
y
d
d

Sec. 5. Issuance of alias summons. If


a
s u mm o n s i s ret ur ne d w ith ou t bein g serve d o n
an y o r al l o f th e d e f e n d a n t s , th e s e r v e r s h a l l
als o ser v e a cop y of th e retur n on th e p l a i n t i f f s
c o u n s e l , s t a t i n g th e r e a s o n s for th e f a i l u r e o f
ser vi ce , w i thi n five (5) day s the refrom . In suc h a
case , o r i f th e s u m m o n s ha s bee n lost, th e cler k,
o n d e m a n d o f th e pl ai nt i f f , ma y i s s u e a n al i a s
s u mm o n s . (4a)

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14

SUMMON

S E C S . 6- 7

NOTES
1. The e nume ra ti on in Sec. 3 of the persons who may validly
serve summ ons is exclusive. Thus, where summons was
served, without authority granted by the court, by a police
sergeant (Sequito vs. Letrondo, 105 Phil. 1139), by a
postm aster (Olar vs. Cuna, L-47935, May 5, 1978), or by a
pat rolm an (Bello vs. Ubo, et al., L-30353, Sept. 30, 1982),
such service was invalid and the court did not acquire
jurisdiction over the defendant.
2. Proof of service is requi red to be given to the plaintiffs
counsel in order to enable him to move for a default order
should the defendant fail to answer on time or, in case of
non-service, so tha t alias summons may be sought. In
either case, under this amended section, the server mus t
serve a copy of the re t ur n on pl a i nt i ff s counsel within 5
days from completion or failure of the service, which
re qu i re m e n t was absent in the former Rules.
Sec . 6. Service in person on defendant. Whe n
eve r pr ac tic a bl e , the su mmon s shall be ser ve d by
ha n di n g a cop y the reo f to th e de fe n da n t in pe r son,
or, i f h e r e f u s e s t o r e c e i v e an d si g n for it, b y
te n de r i n g i t to hi m. (7a)
Sec. 7. Substituted service. If, for justi fi a bl e
c a u se s , th e d e f e n da n t c an n o t be se r ve d w i thi n a
r e a s o n a b l e ti m e a s p r o v i d e d i n th e p r e c e d i n g
secti on, ser vi ce may be effecte d (a) by le avi ng copi es
of the su mmon s at the de fe ndant' s re si de nc e wit h
som e pe r s o n o f sui tabl e age and d i s c r e t i o n the n
r e s i di n g t h e r e i n , or (b) by l e avi n g th e c opi e s at
de fe ndant' s office or regul ar place of busi ne s s wit h
some c o m pe t e n t pe r s o n in c har ge thereof. (8a)

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S E C S . 6- 7

NOT E S
1. T hese two sec tions provi de for two modes of service of
summons. The third mode is service of summons by
publication (Secs. 14, 15 and 16). The court may also provide
for any other manner as it may deem sufficient (Sec. 15).
2. .
S u m m o n s c a nno t be served by mail . Whe r e
service of summ ons is made by publication, "a copy of
the sum m on s and order of the court shall be sent by
registered mail to the last known address of the defen
dant " (Sec. 15).
That resort to re gistered mail is only
complementary to service of summons by publication, but i
t does not mean tha t service by re gistered mail alone
would suffice.
Thus, Sec. 22 of the former Rule
entitled "Proof of service by registered mail," which created
that m i si m pre ss i o n, a lt hou g h i t ac t ua l l y re fe rre d only to
the re gi st e re d mail as a c om pl em e nt in summ on s by
pu bl i c a t i o n , ha s been e l i m i n a t e d an d ha s not bee n
reproduced in this revised Rule. For tha t ma tt e r, the
purpose it intended to serve is attende d to by Sec. 13,
Rule 13.
3. In ejectment cases, being in personam, personal service of
summons on the defendant within the state of the forum is
esse ntial to acquire juri sdicti on over his person, hence
summons by publication is null and void (Ilaya Textile
Market, Inc. vs. Ocampo, et al, L-27823, Mar. 20, 1970).
4. Where the action is in personam and the defen dan t i s in
th e P hi l i p pi ne s , service mus t be mad e in accordance
with Sec. 7. Substit ute d service should be availed of only
where the defendant cannot be promptly se r ve d in pe rs o
n (Litonjua vs. CA, et al, L-46265, Oct. 28, 1977).

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SE C . 8

5. The impossibility of personal service should be explained


in the proof of service showing tha t efforts were exerted
therefor, hence the resort to subst ituted service (Keister
vs. Navarro, et al., L-29067, May 31, 1977) and such facts
must be reported in the proof of service, ot he rw i s e th e
su bs t i t ut e d service i s invalid (Busuego vs. CA, et al, L48955, June 30, 1971; Arevalo, et al. vs. Quilatan, et al., G.R.
No. 57892, Sept. 21, 1982; Ponio, et al. vs. IAC, et al., G.R. No.
66782, Dec. 20, 1984; Venturanza vs. CA, et al., G.R. No. 77760,
Dec. 11, 1987; Samartino vs. Raon, et al, G.R. No. 131482,
July 3, 2002).
Where, however, the substituted service of summons
unde r such ci rc um st a nce s was not objected to by the
defendant at the trial where he voluntaril y appeared by
counsel and this objection was raised only for the first
time on appeal, there was no question that said summons
was actually and timely received by the defendant. The
doctrine in the aforecited cases was not applied and such
s u b s t i t u t e d service of s um m on s was de clared valid.
Whate ver defect there was in such mode of service was
deemed waived and the court had acquired jurisdiction
over th e pe rs o n of th e d e f e n da n t by his vo l u n t a r y
submission theret o (Boticano vs. Chu, G.R. No. 58036,
Mar. 16, 1987; cf. Umandap vs. Sabio, Jr., et al, G.R.
No. 140244, Aug. 29, 2000).
6. Although the wife was not personally served with
summons, the service of such summons on her husband
was binding on her, where her husband apprised her of
tha t fact by tele gram and she was also served with a
copy of the writ of preliminary attac hment issued in the
case; hence, she was duly alerted to the filing and pen
dency of the action against her (De Leon vs. Hontanosas,
et al, L-40377, Oct. 29, 1975).
Sec. 8. Service
upon
entity
without
juridical
personality. Whe n pe r son s ass oc i ate d in an entity

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14

R E M E D I A L LA W C O M P E N D I U M

SE C . 8

w i t h ou t juri di c al pe r s on al i t y are sue d un de r the


nam e b y w hi c h the y are g e n e r al l y o r c o m mo n l y
k n o w n , s e r v i c e ma y b e e f f e c t e d u p o n al l th e
d e f e n d a n t s b y s e r v i n g upo n an y on e o f the m , o r
upo n th e pe r s o n in charge of the office or place of
b u s i n e s s m a i n t a i n e d i n su c h n a me . Bu t s uc h
service shall not bind indivi dually any pe rson w hos e
c o n n e c t i o n wit h th e e nti t y has , upo n du e n oti c e ,
bee n se ve re d before th e ac ti on wa s br ou ght. (9a)
NOT E S
1. As a general rule and as provided in Sec. 1 of
Rule 3, only na t ural or juridical persons may be parties
in a civil action, but "entities authorized by law" may
likewise be pa rtie s to a suit. Accordingly, Sec. 15 of said
Rule provides tha t an entity without juridical personalit y
may be sued under the circumstances prescribed therei n
in connection with a transaction it may have entere d into
and the pre se nt section provides the rule for summons
thereon.
I t mus t nonet hele ss be observed tha t such entit y
wi t hout juridic al persona lit y can be sued, but cannot
sue by initiating an original civil action. However, it is
s u b m i t t e d t h a t as a m a t t e r of fa i rne s s an d logical
procedure, once it is impleaded as a defendant to a suit,
i t may also file c ou nt e rc l a i m s , cross-claims or ot he r
initiatory pleadings for claims it may properly avail itself
of as, and since it is already, a part y to a suit.
Also, the previous provisions of Sec. 9 of this Rule
on this matter referred to "persons associated in business,"
thus giving rise to the impression tha t only associations
engaged in business are contemplated therei n and can be
sued as such defendants. This section has been revised to
refer to and include "persons a ssoci ated in an entit y
wi t hou t j uri di c al pe rsona li t y," since a ssoci ations not
engaged in business or commercial activity, such as civic
248

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SUMMON

SE C S . 9-1 0

associations or organizations, can also commit actionable


wrongs which can be a cause of action in a civil case.
2 . Whe r e th e ac ti o n wa s b r o u gh t a ga i n s t th e
"Cerisco Blackcat Tradi ng, " which de si gna tion was a
combination of the tra dem a rk and business name under
which th e owne r s of th e e s t a b l i s h m e n t were doing
business, the summons served upon the "president/owner/
manager" of said firm, although they were not impleaded
as defendants in the complaint, was valid and the court
acquire d j uri sdicti on over thei r pe rson s as the same
complied with the provisions of Sec. 9 (now, Sec. 8) of
this Rule on service upon associations (Ablaza vs. CIR,
et al, L-33906, Dec. 21, 1983).
Sec. 9. Service upon prisoners. W h e n th e
d e f e n d a n t i s a p r i s o n e r c o n f i n e d in a jai l or
i n st i t ut i on , se r vic e shall be effec te d upo n hi m by
the officer h av i n g th e m a n a g e me n t of suc h jail or
i n st i t ut i o n wh o i s de e me d d e pu t i z e d as a spe ci al
sheriff for said pu r pose . (12a)
Sec. 10. Service upon minors and incompetents.
When th e de f e n dan t i s a minor, i nsan e or ot he r w i s e
a n i n c o m pe t e n t , ser vi c e shall b e mad e upo n hi m
pe r sonal l y and on hi s legal guar di a n i f he ha s one,
or i f n o n e , u po n hi s g u a r d i a n ad litem w h o s e
a p p oi n t me n t shall be appl ie d for by the plaintiff.
In the cas e of a mi nor, ser vi ce ma y also be made
on his father or mothe r. (10a, 11a)
NOTES
1. The important change introduced in Sec. 9 of this
Rule is the deputization as a special sheriff of the head of
the penal institution for the service of summons upon a
prisoner confined t he re i n. Consequentl y, tha t officer
who has the ma na gem ent of the prison facility shall be

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14

R E M E D I A L LA W C O M P E N D I U M

SE C . 11

charged with the duty of complying with the provisions


of Secs. 4 and 5 of this Rule relative to the re turn on the
summons on the prisoner.
2. With regard to Sec. 10, the cha nge s consist of
the present requirement tha t summons should be served
upon the minor, regardless of his age, and upon his legal
guardian or also upon either of his pa re nt s. In the case
of an inc ompe tent , service must also be made on him
personall y or upon his legal gua rdia n, bu t not on his
p a r e n t s u nl e ss , obviousl y, whe n the y ar e his le gal
gua rdia ns. In any event, i f the minor or incompetent
ha s no legal gua rd i a n , th e plaintiff mus t obtai n th e
appointm ent of a guardia n ad litem for him.
Sec . 11. Service upon domestic private juridical
entity. W he n th e d e f e n d a n t is a c o r p o r a t i o n ,
p a r t n e r s h i p o r a s s o c i a t i o n or g a n i z e d u n de r th e
law s of th e P h i l i p pi n e s wit h a ju r i di c a l pe r s on a l i ty ,
se r vic e ma y b e mad e o n th e pr e s i de n t , m a n a g i n g
partner , genera l ma nager , cor porat e secretary ,
t re as u re r , or i n-h ou s e c ou nse l . (13a)
NOTES
1. Unde r the formulation in Sec. 13 of this Rule
from which this amended section was taken, i t was held
tha t service upon a person other tha n those mentioned
t he re i n i s invali d an d does not bind th e c orporat i on
(Delta Motors Corp. vs. Pamintuan, et al., L-41667,
April 30, 1976, citing Reader vs. District Court, 94 Pac.
2nd 8581, holding tha t service of summ ons on the wife of
the corporate secretary was not binding on the corporation;
cf. AM Trucking, Inc. vs. Buencamino, et al., G.R.
No. 62445, Aug. 31, 1983). But in Summit Trading &
Dev. Corp. vs. Avendano, et al. (G.R. No. 60038, Mar. 18,
1985), summons for the corporation served on the secretary
of the president thereof was held to be binding on said

250

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corporation as the secretary was considered an "agent"


of the corporation. The same is true where summons
was served on the a dm i ni s t r a t i ve Chief of Fi nance of
defendant corporation (Far Corp., et al. vs. Francisco,
etc., et al., G.R. No. 57218, Dec. 12, 1986).
2. Also, it was ruled that service of summons upon the
a ssi sta nt ge ne ral ma na ge r for operations of a cor poration,
holding office at a sub-station is valid as he is, in effect, a
"manager" or "agent" of the corporation (Villa Rey Transit,
Inc., et al. vs. Far East Motor Corp., et al., L-31339, Jan. 31,
1978) even if the papers were later left with the teller due
to the refusal of said assistant general ma na ge r to receive
the same upon the tender thereof to him. Whe re, howe ver,
summ on s in a case a ga i nst a corporati on, wit h hea d office
in Mani la but wit h an agenc y in Cebu, wa s served on its
supposed bra nc h ma na ge r in Cebu but he apparentl y
betrayed the trust of the de fe nda nt corporation by
allowing an order of default to be take n against it, it was
held
that summons was not validly served and no
jurisdiction was
acquired over
the
defendant
corporation (First Integrated Bonding & Insurance Co., Inc. vs.
Dizon, etc., et al., G.R. No. 61289, Oct. 27, 1983).
3. Along the same rationale, it was declared that a lawyer who
had made two special appearances in court in behalf of a
defendant corporation, to challenge the validity of service
of summ ons upon it, is an agent of said corporation
under Sec. 3 of this Rule and summons intended for said
corporation may validly be served on him (Filoil
Marketing Corp. vs. Marine Dev. Corp. of the Phil., L-29636,
Sept. 30, 1982; Lingner & Fisher GMBH vs. IAC, et al,
G.R. No. 63557, Oct. 28, 1983).
4. The foregoing doctrines were obviously dictated by the
consideration that the former Sec. 13 of this Rule allowed
service upon a defendant corporation to "be made on the
president, manager, secretary, cashier, agent

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SE C . 11

or any of its directors." The aforesaid term s were obvi


ously ambiguous and susceptible of broad and sometimes
illogical int e rpre t at i ons, especially the word "agent" of
the corporation. The Filoil case, involving the litigation
lawyer of th e corporati on who precisel y a p pe a re d to
challenge the validity of service of summons, but whose
very a ppea ra nce for tha t purpose was seized upon to
validate the defective service, is an illustration of the need
for this revised section with limited scope and specific
terminology. Thus, the absurd result in the Filoil case
necessitated the a me ndme nt permitting service only on
the in-house counsel of the corporation who is in effect
an employee of the corporation, as di st i n gui she d from
an independent practitioner.
5..

The aforestated considerations not wi thsta ndi ng, i t was


believed tha t the ul timate test on the validity and
sufficiency of service of summ ons is whe t he r the same and
the a tt a c hm e nt s thereto were ultimatel y received by the
corporation under such circ umsta nces tha t no undue
prejudice was sustained by it from the procedural lapse,
and tha t i t was afforded full opportunit y to pre se nt its
re spon si ve pl e a di n gs . This i s bu t in accord wit h th e
e n t r e nc h e d rule t ha t th e end s of s u b s t a n t i a l just i ce
should not be s ub or di na t e d to t e c h ni c a l i t i e s and, for
which purpose, each case must be examined within the
factual milieu peculiar to it.
T hus , i t wa s held t ha t a l t h o u g h s u m m o n s wa s
served on a secretary of the corporation (not the official
corporate secretary) and, therefore, such service was made
on a person not authorized to receive the same, where
said summons and the complaint were in fact seasonabl y
received by the corporation from its said clerk, the re was
s u b s t a n t i a l c om pl i a nc e wit h th e rul e on se rvi c e of
summons (G & G Trading Corporation vs. CA, et al., G.R.
No. 78299, Feb. 29, 1988).

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SE C . 11

6. However, the foregoing oscillating holdings were clarified


and/or overturned in E.B. Villarosa & Partner Co., Ltd. vs.
Benito (G.R. No. 136426, Aug. 6, 1999) which declared tha t
th e doc tri ne of su bs t a nt i a l compliance followed under the
1964 Rules is no longer applicable in view of the
a me ndme nt s introduced by the 1997 Rules of Civil
Procedure. It was pointed out tha t the new rule on this
point is restricted, limited and exclusive, as follows:
"The desi gnation of the persons or officers who
are authori ze d to accept summ ons for a domestic
corporation or partne rshi p is now limited and more
clearly specified in Sec. 11, Rule 14 of the 1997 Rules
of Civil Proce dure . The rule now state s 'ge ne ral
m a n a ge r ' i n s t e a d of onl y 'm a n a ge r ' ; 'c or po ra t e
s e c r e t a r y ' i n st e a d of 's e c re t a r y'; and ' t r e a s u r e r '
instead of 'cashier.' The phrase 'agent, or any of
its directors' is conspicuously deleted in the new rule."
This ruling was reiterated in Mason, et al. vs. CA,
et al. (G.R. No. 144662, Oct. 13, 2003), where service of
summons was declared invalid because it was served on a
filing cle rk of d e f e n da n t c or po ra t i o n a l t h o u g h th e
latter appeared to have eventually received the same.
7.A real part y in interest-plaintiff is one who has a legal
right, while a real party in interest-defendant is one
whose act or omission violates the legal rights of the
former. Wher e th e de fe nda nt still existed as a
corporation when the cause of action accrued, summons
may properly be served on it even if at the time of the
issuance and receipt of summons it had already been
dissolved. A defendant corporation is subject to suit
even if dissolved, as contemplate d in Sec. 122 of the
Corporation Code. It should, therefore, be amenable to
such coercive process which may be served through any
of the person s m e nt i one d in Sec. 13 (now, Sec. 11),
Rule 12 (Rebollido, et al. vs. CA, et al., G.R. No. 81123,
Feb. 28, 1989).

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SE C . 12

Sec.
12. Service upon foreign private juridical entity.
When th e de f e n dan t is a foreign pr i vate juri di c al
e n t i t y w h i c h ha s t r a n s a c t e d b u s i n e s s i n th e
P hi l i p p i n e s , se r vic e ma y be mad e on its r es i de n t
age n t de s i g n a t e d in ac c or da nc e wit h law for tha t
p u r p o s e , or, i f t h e r e b e n o suc h a g e n t , o n th e
g ov e r n me n t official de s i g na te d by law to that effect,
o r o n an y o f it s o f f i c e r s o r a g e n t s w i t h i n th e
P hi l i ppi ne s . (14a)
NOTES
1. This section has been amended to substitute the phrase
"foreign private juridical entit y which has tran sacted
business in the Philippines," being more embracing and
accurate, for the provision in the former Section 14 of
this Rule which referred to a "foreign corporation, or a
joint non-stock company or association, doing business in
the Philippines."
2. . Formerly, where the foreign private corporation had no
resident agent in the Philippines or officers or other agents
here, service of summ ons was made on the gove rnm e nt
officials desi gnate d by law, to wit: (a)
for banking,
savings and loan or trust corporations,
upon the
S u p e r i n t e n d e n t of Ba nk s (Sec. 17, R.A. 337); (b) for
insurance corporations, on the Insura nce Commissioner
(Sec. 177, Insurance Act, as amended by Act 3152); and
(c) in the case of other corporations, on the Secretary of
Commerce (Sec. 72, Act 1259, as amended by CA. 287,
R.A. 337 an d R.A. 1055). Howe ver, Sec. 123 of th e
C orpora t i on Code now provi de s t ha t whe n a foreign
pri vate corporation applies for a license to do business
in th e Phi l i ppi ne s, i t shal l be gra nte d subject to the
condition, inter alia, tha t if it ha s no re si de nt agent,
summons and processes intended for it shall be served
on the Securities and Exchange Commission.

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SE C . 13

3. Where the service of summons is made on the gove rnme nt


official de si gna ted by law, the de fe nda nt corporation has
30 days from its receipt of the summons within which to file
its a nswe r (Sec. 2, Rule 11). If served on its resident
agent, officers or other agents in the Philippines, the 15day re glementary
period
applies (see
Facilities
Management Corp. vs. DelaOsa, L-38649, Mar. 28, 1979).
4. The former Sec. 14 of this Rule required, as a condition sine
qua non, tha t the foreign corporation is doing business in
the Philippines. In the absence of proof thereof, bu t th e
claim of the plaintiff is based on a contract with said
foreign corporation which provides that all controversies
arising
from
said
contract
"shall fall under the
jurisdiction of Philippine Courts," the suit may be i n s t i t ut e
d in th e Ph i l i ppi ne s and service of summons may be made
by publication under a liberal applicati on of Sec. 17
(now, Sec. 15) of this Rule in relation to Rule 4 (Lingner
& Fisher GMBH vs. IAC, et al., supra).
It has, however, been held that a foreign corporation,
even if it is not doing business in the Philippines, may be
sued for acts done against persons in this country under
the rationale tha t even if it is not doing business here, it
is also not barred from seeking redress from Philippine
court s (Facilities Management Corp. vs. De la Osa,
supra; Wang Laboratories, Inc. vs. Mendoza, et al., G.R.
No. 72147, Dec. 1, 1987). Note that Sec. 12 now merely
re qui re s tha t the foreign corporation has transacted
business here.
Sec. 13. Service upon public corporations. When
the de f e n d a n t i s th e Re pu bl i c of the P hi l i ppi ne s ,
ser vice may be effe cte d on the Soli citor General; in
cas e of a p r ov i n c e , city or mu n i c i p a l i ty , or like
public c or por ati ons, service may be effected on its

265

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SE C S . 14-1 6

e xe c u t i v e head , or on suc h other officer or officers


as th e law or th e court ma y direc t. (15)
Sec. 14. Service upon defendant whose identity or
whereabouts are unknown. In any ac ti o n w he r e th e
d e f e n da n t i s de s i g n a t e d as an u n k n ow n ow ne r , or
the like, or w he n e v e r his w h e r e a b o u t s are u n kn ow n
an d c a n n o t b e a s c e r t a i n e d b y d i l i g e n t i n qu i r y ,
s e r v i c e may , b y l e av e o f c our t , b e effe c te d upo n
hi m b y p u b l i c a t i o n i n a n e w s p a p e r o f g e n e r a l
c i rc ul ati o n an d in suc h pl ac e s an d for suc h ti m e as
th e cour t ma y or der. (16a)
Sec. 16. Extraterritorial service. W h e n th e
de f e n d a n t doe s not resi d e an d i s not found in th e
P h i l i p p i n e s , an d th e ac t i o n affe c t s th e p e r s o n a l
statu s of th e pl ai nti ff or rel ate s to, or th e subjec t of
w hi c h is, pr ope r t y w ithi n th e P h i l i p pi n e s , i n w hi c
h th e de f e n d a n t ha s or c l ai m s a lien or i nte rest, ac tua
l o r c o n t i n g e n t , o r i n w h i c h th e r el i e f d e m a n d e d
c o n s i s t s , w h o l l y o r i n pa r t , i n e x c l u d i n g th e
de f e n dan t from an y i nte res t the rei n , or th e pr ope r ty
o f th e d e f e n d a n t ha s be e n a t t a c h e d w i t h i n th e
P h i l i p p i n e s , s e r v i c e may , b y l e a v e o f c ou r t , b e
effe c te d ou t of th e P h i l i p pi n e s by pe r s on a l se r vic e
as un de r sec ti o n 6 ; or by pu bl i c a ti o n in a n e w s p a pe r
of ge ne r a l c i r cu l a ti o n in suc h pl ac e s an d for suc h
ti m e as th e cour t ma y or der, in w hi c h cas e a cop y
of th e s u m m o n s and or de r of th e cour t shall be sen t
by r e g i s t e r e d mail to th e last kn ow n a d dr es s of th e
de f e n dan t , o r i n an y othe r ma n ne r th e cour t ma y
de e m s uf fi c i e n t . An y or de r g r a n t i n g suc h le av e
shal l speci fy a r e a s on a b l e ti me , w hic h shal l not be
les s tha n si xty (60) day s after n oti c e , w i thi n w hi c h
th e de f e n d a n t mus t an sw e r . (17a)

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S E C S . 14-1 5

NOTES
1. Sec. 15 provides for the four instances wherein
extrat erritorial service of summons is proper. In any of
such four instances, service of summons may, by leave
of court, be effected by personal service, by publication
with a copy of the summ ons and the court order sent
by re gistered mail, or in any other ma nne r which the
court may deem sufficient. Where summonses were sent
to defendants who were residing abroad, by registered
mail which they duly received and even filed a pleading
questioning such mode of service, the third mode of service
was substantiall y complied with and such service is valid,
especially where the court thereafter granted them 90 days
wi t hi n which to file t hei r a n s we r (De Midgely vs.
Ferandos, L-34313, May 13, 1975; Carioga, et al. vs.
Malaya, et al., L 48375, Aug. 13, 1986).
2. Where the husband is a nonresident, but his wife is a
resident and is his attorne y-in-fact who even com menced
an action in his behalf, in a complaint against said
nonre si de nt defendant, summ ons may validly be served on
his wife and the court has jurisdiction over said nonre si de n
t (Gemperle vs. Schenker, et al., L-18164, Jan. 23,
1967).
3. . Unde r Sec. 15 of thi s Rule, e x t r a t e r r i t o r i a l
service of summons is proper only in four instances, viz.:
(a) when the action affects the personal sta t u s of the
plaintiff; (b) when the action relates to, or the subject of
which is propert y within the Philippines in which the
de fe nda nt ha s or claims a lien or int e re st , act ual or
contingent; (c) when the relief demanded in such action
consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines;
and (d) whe n th e de f e n da n t no nre si de nt ' s prope rt y
has been at ta c he d in the Philippines (De Midgely vs.
Ferandos,
supra).

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R E M E D I A L LA W C O M P E N D I U M

S E C S . 14-1 5

4. An action for injunction to re st rai n defendants


from enforcing against plaintiff its contracts for delivery
of coconut oil to defendants, with a claim for dama ges,
is not among those enumera ted. It is a personal action
in personam and pe rsona l or su bs t i t ut e d service, not
extraterritorial service, is required in order that Philippine
courts may acquire jurisdiction over the defendant. This
is especiall y true with respect to the money jud gm e nt
sou gh t by pl aint iff which, to be s u s t a i n e d , re qu i re s
pe rs on a l service o n th e de fe nda n t wit hi n th e Sta t e
which re nde re d the jud gm e n t sought [Boudard, et al.
vs. Tait, 67 Phil. 170]. The e xt ra t e rri t or i a l service of
sum m on s effected on th e de fe nda nt s by DH L courier
service wa s null and void (The Dial Corp., et al. vs.
Soriano, et al., G.R. No. 82330, May 31, 1988).
5 . Since th e de fe nda nt is a n on re s i d e n t and the
suit also involves real propert y in the Philippines wherein
said defendant has an interest, service of summ ons on
him by publication in a local newspaper is authorized by
Sec. 17 (now, Sec. 15) of this Rule. While it may be true
tha t service of summ ons by publication does not involve
any absolute assura nce tha t said nonresident defendant
shal l t h e r e b y recei ve a ct ua l notice , suc h se rvi c e of
s u m m o n s i s re q ui re d not for p ur po se s of ph ysi c al l y
a c q u i r i n g j u r i s d i c t i o n over hi s p e r s o n bu t si m pl y
in p u r s u a nc e of th e r e q u i re m e nt s of fair pla y. I t is
necessary, however, tha t copies of the summ ons and the
c o m pl a i n t be dul y served a t de f e n da nt ' s las t know n
a d d r e s s by re gi s t e re d mail as a c o m p l e m e n t to th e
publication. The failure to strictly and correctly comply
wi t h th e r e q u i r e m e n t s o f th e rul e s r e g a r d i n g th e
mailing of said copies will constitute a fatal defect in the
aforesaid mode of service of summ ons (Sahagun vs. CA,
et al, G.R. No. 78328, June 3, 1991).
6 . W h e r e th e c o m p l a i n t doe s no t i n vo l v e th e
p e r s o n a l s t a t u s of pl a i nt i ff or an y p r o p e r t y i n th e

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14

SUMMON

SE C S . 14-15

P h i l i p p i ne s i n whic h d e f e n d a n t s have or clai m an


int e re s t or which th e plaintiff ha s a t t a c he d , i t is a
personal action in personam. Consequently, personal or
s u b s t i t u t e d se r vi ce of s u m m o n s on de fe nda nt s , not
ext rate rrit orial service, is necessary to confer jurisdiction
on the court. In a personal action for injunction, therefore,
ext rat e rrit ori al service of the summons and complaint
on the n on re s i d e n t de fe nda nt s cannot confer on the
court jurisdiction or power to compel them to obey its
orders (Kawasaki Port Service Corp., et al. vs. Amores,
etc., et al., G.R. No. 58340, July 16, 1991).
7.

In Asiavest Limited vs. CA, et al. (G.R. No. 128803, Sept. 25,
1998), an action was filed in Hongkong against a
Philippine re si de nt for a sum of money. Summ ons therein
was served directly through plaintiffs Philippine counsel
upon an occupant of defendant ' s residence in Quezon City.
Thereafter, the judgment of the Hongkong court was
re nde re d and sought to be executed in the Philippines, but
it was resisted for lack of jurisdiction over the person of the
defendant.
Matte rs of procedure, such as service of summons, are
governed by the lex loci, in this case, those of Hong
kong. There being no proof on this score, under the rule
on processual presumption the same are deemed to be
the same as Philippine law. In the present case, such
s u m m o n s se rve d on a n o n re s i d e n t de f e n da n t in an
action in personam is not valid since e xt ra t e rri t or i a l
service of summons on nonresidents is allowed only in
the instances provided under Sec. 17, Rule 14. Service of
s u m m o n s in thi s case being inva lid, th e Ho ngkon g
jud gm e nt cannot be given effect here, no jurisdict ion
having been acquired over the defendant.

8. A newspaper of general circulation for purposes of


summons by publication, is one which is published for the
dissemination of local news and general information, has a
bona fide subscription list of subscribers, is published
259

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SE C S . 16-17

at regular intervals and is not published for or devoted


to the interest of a particular group of persons (Basa vs.
Mercado, 61 Phil. 632). See also the provisions of R.A.
4883 , which re qui re d tha t the ne w s pa pe r mus t have
been re gularl y published for at least two years before
the date of the publication in question, and P.D. 1079
(Jan. 28, 1977) as discussed in Fortune Motors (Phil.),
Inc. vs. Metropolitan Bank, etc., et al. (G.R. No. 115068,
Nov. 28, 1996).
Sec . 16.
Residents
temporarily
out
of
the
Philippines. W he n an y a c t i o n i s c o m m e n c e d
agai n s t a de f e n d a n t wh o or di nar il y resi de s w i t h i n
th e P h i l i p pi n e s , but wh o i s te mp or a r i l y ou t of it,
ser vi ce may, by leav e of court, be also effe cte d ou t
o f th e P hi l i p p i n e s , a s un de r th e p r e c e di n g se c ti on .
(18a)
Sec . 17. Leave of court. Any a ppl i c a ti o n to the
c our t un de r thi s Rule for leave to effect ser vi c e in
an y ma n ne r for w hi c h le av e of c our t i s n e c e s s a r y
shall be mad e by moti o n in w riti ng , s u p p o r t e d by
a f f i d a v i t o f th e pl a i n t i f f o r so m e p e r s o n o n hi s
be hal f, s e t t i n g fort h th e g r ou n d s for th e a ppl i
c ati on . (19)
NO T E S
1. Under these provisions, service of sum m ons by publication is
authorized, with prior leave of court:
a. Where the identit y of the defendant is unknown;
b. Where the where about s of the defendant is un
known;
c. Where the defendant does not reside and is not found in the
Phil ippine s bu t the suit can prope rl y be mai ntai ned
a ga inst him here, being in rem or quasi in rem; and

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14

SUMMON

SE C S . 16-17

d. Whe r e th e d e f e n d a n t is a r e s i d e n t of th e Philippines
but is temporaril y out of the country.
2.

S u m m o n s in a sui t in personam a ga i n s t a resident of the


Philippines temporarily absent therefrom may be validl y
effected by subst it ut e d service unde r Sec. 7 of this Rule.
It is immaterial that the defendant does not in fact receive
actual notice, and the validity of such service is not
affected. While the present Sec. 15 provides for modes of
service which may also be availed of in the case of a
resident defendant temporarily absent, the normal mode of
service on such temporarily absent defendant is by such
subst ituted service under Sec. 7 because personal service
outside the country and service by publ ic a ti on ar e not
ordi na r y me a n s of s um m on s (Montalban, et al. vs. Maxima,
L-22997, Mar. 15, 1968). However, it has also been held that
in such cases, non compliance wit h th e modes of service
unde r Sec. 18 (now, Sec. 16) is a denial of due process
and re nde rs the proceedings null and void (Castillo vs. CFI
of Bulacan, G.R. No. 55869, Feb. 29, 1984).

3. .

Also, it has been ruled that where the defendant is a


resident and the action is in personam, summons by
publ i ca t i on i s invali d as being vi ol ati ve of th e due
process clause . Plaintiff' s re course , wher e pe rsona l
service fails, is to at ta c h properties of the defendant
under Sec. 1(f), Rule 57, thus converting the suit to one in
rem or quasi in rem and summ ons by publication will be
valid. Where plaintiff fails to or cannot do so, the court
should not dismiss the action but should order the case to
be held pe ndi n g in the archives, so tha t the action
will not prescribe, until such time as the plaintiff succeeds
in a sce rtai ning the defendant' s
where about s or
his
properties (Pantaleon vs. Asuncion 105 Phil. 761; Citizens
Surety & Insurance Co., Inc. vs. Melencio-Herrera, et al, L32170, Mar. 31, 1971; Magdalena Estate, Inc. vs. Nieto, et
al., G.R. No. 54242, Nov. 25, 1983; Filmerco

261

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SE C S . 18-2 0

Comm. Co., Inc. vs. IAC, et al., G.R. No. 70661, April 9,
1987).
Sec. 18. Proof of service. The proof of se r vic e
of a su mmon s shall be mad e in w riti n g by th e server
and shall set forth th e man ne r , place and date of
ser vice ; shall speci fy an y pa pe r s w hic h hav e bee n
ser ve d wit h th e pr oc e s s and the nam e o f th e pe r s o n
wh o rec ei ve d th e same ; and shall b e sw or n t o w he n
mad e by a pe r s o n othe r tha n a sheri ff or his de puty .
(20)
Sec. 19. Proof of service by publication. If th e
ser vi ce ha s bee n mad e b y pu bl i c a ti on , ser vi c e ma y
be pr ove d by the affidavit of th e pr inte r, hi s fore man
o r pr i n c i pa l c le r k , o r o f th e e di t or , b u s i n e s s o r
a d v e r t i s i n g ma nage r , to w hi c h affidavit a cop y of
the pu bl i c ati on shall be attac he d, and by an affidavit
s h ow i n g th e de p osi t of a cop y of th e s u m m o n s and
or de r for p u b l i c a t i o n i n th e pos t offic e , p o s t a g e
prepai d, di rec te d to th e de fe n dant by regi ste red mail
to hi s last kn ow n a ddr ess . (21)
Sec. 20. Voluntary appearance. Th e de f e n d a n t ' s
v o l u n t a r y a p p e a r a n c e i n th e a c t i o n s h a l l b e
e q u i v al e n t t o ser vi c e o f s u mm o n s . Th e i n c l u s i o n
in a moti o n to di s mi s s of othe r gr ou n d s asi d e from
lac k o f ju r i s di c t i o n ove r th e pe r s o n o f th e de f e n d a n
t shall no t be de e me d a v ol u n ta r y a p pe a r a n c e .
(23a)
NOTE
1 . Any form of a p p e a r a n c e in c ou rt , by th e
defendant, by his agent authorized to do so, or by attorney,
is equivalent to service except where such appea rance is
precisely to object to the jurisdiction of the court over the
person of the defendant (Carballo vs. Encarnacion, 92
Phil. 974). See Notes 4 and 5 under Sec. 1, Rule 16.

RULE 15
MO TIO N
S
S e c t i o n 1. Motion defined. A m o t i o n is an
a p pl i c at i o n for relie f othe r tha n by a pl eadi ng, (la )
NOTE
1. T hi s a m e n d e d de fi ni t i o n of a m oti o n is a
consequence of the provisions of Sec. 1, Rule 6 which limit
the meaning of a pleading to the written sta teme nt of the
respective claims and defenses submitted by the parties
for appropriate judgment, and Sec. 2 of the same Rule
which enum e ra t e s the pleadings allowed. However, as
explained in the notes thereunder, a motion may also be
considered in a broad sense as in the nature of a pleading
since it is among the papers filed in court. Hence, Sec. 10
of this Rule requires a qualified application to motions of
the rules applicable to pleadings.
Sec. 2. Motions must be in writing. All moti on s
shall be in w ri ti n g e xc e p t thos e mad e in ope n court
or in th e c our s e of a he ar i n g or trial. (2a)
Sec. 3. Contents. A m o t i o n shal l stat e th e
relief s oug h t to be obtai ne d and the gr ou n d s upo n
w hic h i t i s base d, and i f re qui re d by thes e Rul es or
n e c e ss ar y to pr ove facts al l e ge d the rei n , shall be
a c c o m p a n i e d b y s u p p o r t i n g affi davits and othe r
pa per s. (3a)
Sec. 4. Hearing of motion. Except for moti on s
w hic h th e court ma y act upo n w i thou t pr eju di c i ng
the rights of the a dve r se party, every written motion
shall be se t for h e ar i n g by the appl ic ant. Eve ry
w ri tte n moti o n requi re d to be he ar d and the notice

263

R E M E D I A L LA W C O M P E N D I U M

of th e h e a r i n g t h e r e o f shal l be ser ve d in suc h a


ma nne r as to e nsu r e its rec ei pt by th e othe r party
at le ast thre e (3) day s before th e date of he ar i ng ,
unl e s s the court for good caus e set s th e h e a r i n g on
sh or te r notic e . (4a)
NOT E S
1. The exceptions to the three -da y notice rule in
Sec. 4 are : (a) ex parte mot i ons, (b) ur ge n t m oti ons
(Bautista vs. Mun. Council of Mandaluyong, Rizal, 98
Phil. 409; Supreme Investment
Corp.
vs.
Engineering
Equipment, Inc., L-25755, April 11, 1972), (c) motions
agreed upon by the parties to be heard on shorter notice
(Tuazon & Co. vs. Magdangal, L-15047, Jan. 30, 1962)
or jointly submitted by the parties, and (d) motions for
sum ma r y judgme nt which must be served at least 10 days
before its he ari ng (Sec. 3, Rule 35).
2 . This amended section enunciates the general rule
that all writte n motions shall be set for hearing, even if,
as just stated, tha t hearing may be conducted on less tha n
3 days advance notice. Excepted from such requi reme nt
for he ari ng are the so-called non-litigable or non-litigated
motions, mea ning those which may be acted upon by the
court without prejudicing the ri ghts of the adverse part y.
While a motion may be allowed to be filed ex parte
and is an exception to the 3-day notice rule, it does not
necessaril y mean tha t the hearing thereof shall be dis
pensed with. The court may still hear the same ex parte,
tha t is, in the absence of the opposing part y, since the
court can very well see to i t tha t the latter' s inte rests will
be duly protected. An ex parte proceeding merely means
tha t i t is take n or granted at the instance and for the
benefit of one part y, and without notice to or conte sta tion
by an y pa rt y a d ve r s e l y affected (Janin vs. Logan,
209 Ky. 811, 273 S.W. 531; Stella vs. Mosele, 209 III.
App. 53, 19 N.E. 2d 433).

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SE C S . 5- 6

3. It is no longer sufficient to just mail a copy of the


motion at least 3 days before the scheduled hearing, as
this mode of service has often been abused to result in the
adverse part y' s receipt of such copy after the scheduled
hearing due to the delay in the mails. Service of that
copy, unde r this new section, should be made in such
manner as shall ensure receipt of that copy at least 3 days
before the he ari ng. This objective can very easily be
achieved by personal service whenever feasible. For this
re a son, Sec. 11 of Rule 13 pro vi de s t hat , wh e ne ve r
practicable, service of pleadings and other papers shall be
done personall y, subject to the exceptions and sanctions
specified therein.
Sec. 6. Notice of hearing. The notic e of h e ar i n g
shall be a ddr esse d to all par ti es c onc er ne d, and shall
specify th e ti m e an d date o f the he ar i n g w hic h mus t
not be later tha n te n (10) day s after the filing of the
moti on . (5a)
Sec. 6. Proof of service necessary. No w r i tt e n
moti on set for h e ar i n g shall be acted upo n by the
court w i th ou t proof of se r vic e thereof. (6a)
NOTES
1. In the Courts of First Instance (now, Regional Trial Courts)
and the lower courts, a motion which does not contain a
notice of time and place of hearing is a useless piece of paper
and of no legal effect, e.g., in the case of a motion for
reconsideration of a judgment or final order, it does not
interrupt the reglementary period (Manila Surety & Fidelity
Co., Inc. vs. Bath Construction & Co., LI6636, June 24,
1965; cf. Sebastian vs. Cabal, L-25699, April 30, 1970).
The same is true where the date for the hea ring of the
motion is uni ntel li gi ble , hence fatally defective (Republic
Planters Bank, et al. vs. IAC, et al., G.R. No. 63805, Aug.
31, 1984).

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S E C S . 5-6

2. Any motion tha t does not comply with Secs. 4, 5 and 6 of this
Rule is a mere scrap of paper, should not be accepted for
filing and, if filed, is not entitled to judicial cognizance and
does not affect any re glem enta ry period involved for the
filing of the requisite pleading. Thus, where the motion
is (a) directed to the clerk of court, not to the pa rti e s, and
(b) merel y sta tes tha t the same is submitted "for the
resolution of the court upon receipt thereof," said motion is
fatally defective (Cledera, et al. vs. Sarmiento, et al., L32450-51, June 10, 1971). This rul e ha s bee n a pp l i e d t o
m ot i on s for new t ri a l o r reconsideration where no date for
hea ring the motion is i n d i c a t e d (Manila Surety & Fidelity
Co. vs. Bath Construction & Co., supra; Fulton Insurance
Co. vs. Manila Railroad Co., L-24263, Nov. 18, 1967; Magno
vs. Ortiz, L-22670, Jan. 31, 1969; In the Matter of
Proceedings for Disciplinary Action Against Vicente Almacen,
L-27654, Feb. 18, 1970; Sebastian vs. Cabal, supra; Vda.
deAzarias vs. Maddela, et al., L-25932, Mar. 19, 1971; Phil.
Advertising Counselors, Inc. vs. Revilla, et al., L-31869,
Aug. 8, 1973; Sacdalan vs. Bautista, L-38014, Mar. 27,
1974; New Japan Motors, Inc. vs. Perucho, L-44387,
Nov. 5, 1976; Firme, et al. vs. Reyes, et al., L-35858,
Aug. 21, 1979).
Where the motion to dismiss, with such defective notice
of hearing, was grounded on lack of cause of action and
improper venue, which grounds are resolvable on the basis
of the compla int an d the anne xe s t he re t o , such erro r
al t houg h not wholly exc usable was gra nt e d a libe ral
consideration and given due course by the Supreme Court
(Azajor vs. CA, et al., L-40945, Nov. 10, 1986).
3. In Andrada, et al. vs. CA, et al. ( L- 3 1 7 9 1 , Oct. 30, 1974),
it was held tha t a "Ma ni fe st at i on and Motion" addre ssed to
the clerk of court asking him to submit the same to the court
"immediatel y upon receipt t h e r e o f did not comply with
the re qui rem e nt s of Sec. 5,

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MOTI ON

SE C S . 8, 9

Rule 15 and the subsequent action of the court thereon


did not cure the flaw, for a motion with a notice fatally
defective is a "useless piece of paper." But a motion (to
dismiss) is sufficient even if notice of the hearing thereof
is addressed to the opposing counsel as long as it states
the time and place of hea ring (OMICO Mining & Ind.
Corp., et al vs. Vallejos, et al, L-38974, Mar. 25, 1975).
The provisions of Sec. 4 requiring the notice to be addressed
to th e opposing pa rt y i s merel y directory. Wha t i s
mandatory is the service of the motion on the opposing
counsel indicating the time and place of hearing (Estipona
vs. Navarro, et al, L-41825, Jan. 30, 1976; Maturan vs.
Araula, G.R. No. 57392, Jan. 30, 1982). Even if the notice
in the motion is defective for failure to state the exact date
of he a ri n g , th e defect is cured by the court' s ta ki n g
cognizance thereof and the fact that the adverse part y
was otherwise notified of the existence of said pleading
(Sun Uy Giok vs. Matusa, 101 Phil. 727).
Sec.
r e qu i r i n
s c h e dul e
Fri day is
the ne x t

7. Motion day. E x c e p t for m o t i o n s


g i mme di a t e ac ti on , all moti on s shall be
d for he ar i n g on Fri day after noons, or i f
a n on - w or ki n g day, in the afte r noon of
w or ki n g day. (7a)
NOTE

1. This amended section was taken from B.P. Blg.


129 which provides:
"Sec. 16. Time and duration of sessions. The time
and duration of daily sessions of the Regional Trial Courts
shall be dete rmi ned by the Supreme Court: Provided,
however, T ha t all m oti ons , exce pt t hos e r e q u i ri n g
immediate action, shall be heard in the afternoon of every
Frida y, unless it falls on a holiday, in which case the
he a ri n g shal l be held on th e afternoon of th e next
succeeding busi ness day: Provided, further, Tha t the

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S E C S . 8- 9

Supre m e Court may, for good rea sons, fix a different


motion day in specified areas."
S e c . 8 . Omnibus motion. S u b j e c t to th
pr ov i si on s of se c ti o n 1 of Rule 9 , a moti o n a t t ac ki n
a p l e a di n g , or der, j u dg me n t , or p r oc e e d i n g shal
i n c l u d e al l o b j e c t i o n s t h e n a v a i l a b l e , an d al
obj e c ti on s not so i nc l ude d shall be de e me d w ai ve d
(8a)

e
g
l
l
.

NOTES
1. The omnibus motion rule in Sec. 8 yields to other specific
provisions. T hus, for inst ance , in a motion to dismiss, the
failure to object to the lack of jurisdiction over the case does
not const i t ut e waiver of this objection. See Sec. 1, Rule
9, as amended, and the discussion therein.
2. Regarding evidence on motions, see Sec. 7, Rule
133 and notes the re unde r.
Sec. 9. Motion for leave. A moti o n for le av e to
file a pl e a di n g or moti o n shal l be a c c o m p a n i e d by
th e p l e a di n g or moti o n s oug h t to be a d mi tt e d , (n)
NOTES
1. The evident purpose of this new provision is to provide the
court with the basis for determining the merits of the
motion for leave of court to file the desired pleading or
motion. Such pleading or motion sought to be admitted is
now required to be attac hed to the motion for leave of court,
otherwise the latter may be denied. Indeed, it is too
demanding, if not unfair to the court and the adverse part y,
to seek a ruling and the admission of a pleading sight
unsee n, so to speak, since the court will have to fathom the
content s of the projected pleading and the o pp os i n g pa r t
y c a n n o t i n t e l l i g e n t l y f o r m u l a t e his

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MOTI ON

SEC . 10

opposition to the admission thereof.


2. This particularly assumes significance in the filing
of amended and suppleme ntal pleadings both of which
require prior leave of court. If initiatory pleadings are
sought to be amended or supplemented, special care must
be taken in the admission of the same since responsive
pleadings and re gl em e nta r y periods may be involved.
Also, the present requirement minimizes the time element
when responsive pleadings would be required. Thus, when
an amended or suppleme ntal complaint is attached to the
motion for its admission and a copy thereof is necessarily
served on the defendant, his period to answer immediately
runs from his receipt of the court order admitting the same.
Otherwise, where only a motion is filed and the same is
granted, the plaintiff will be gra nte d time to file the
amended or supple ment al complaint, the defendant will
have to wait for service on him thereof, and consequently
he will have further time to answer.
Sec. 10. Form. Th e R u l e s a p p l i c a b l e to
pl e a di ng s shall apply to w ri tte n moti on s so far as
c onc er n s c apti on , de s i g na ti on , si gnature, and other
ma tte r s of form. (9a)

RULE 16
MOTION TO DISM I S
S
S e c t i o n 1. Grounds. Withi n th e ti m e for but b e f or
e f i l i n g th e a n s w e r t o th e c o m p l a i n t o r pl e a di n g
a s s e r ti n g a clai m, a moti o n to di s mi s s ma y be mad e
on an y of th e f ol l ow i n g groun ds :
(a) That th e cour t ha s n o j ur i s di c ti o n ove r th e pe r s o n
of th e d e f e n di n g party;
(b) That th e court ha s no j ur i s di c ti o n ove r th e su bje c t
matte r of th e clai m;
(c) That ve n u e i s i mpr ope r l y laid;
(d) That th e plainti ff ha s no legal c apac i t y to
sue;
(e) Tha t ther e i s a n o t h e r ac t i o n p e n d i n g
b e tw e e n th e sam e par ti e s for th e sam e c ause ;
(f) Tha t th e cau s e of ac ti o n is bar re d by a prior j u d g me n t
or by th e statut e of l i mi t at i on s ;
(g) Tha t th e pl e a di n g a s s e r t i n g th e cl ai m state s n o
cau s e o f ac ti on;
(h) Tha t th e cl ai m or de ma n d se t forth in th e p l a i n t i f f s
p l e a d i n g ha s be e n p a i d , w a i v e d , a b a n d o n e d , o r
o t h e r w i s e e xt i n g u i s h e d ;
( i ) T h a t th e c l a i m o n w h i c h th e a c t i o n i s f ou n de d i s
u n e n f or c e a bl e un de r th e p r ov i s i o n s o f th e statut e
of frauds; an d
(j) T ha t a c o n d i t i o n p r e c e d e n t for fi li n g th e c l ai m ha s
not bee n c ompl i e d w ith , (la)
NOTES
1.

A motion to dismiss under this Rule differs from a


270

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T O DISMIS S

SE C . 1

motion to dismiss under Rule 33 on de murre r to evidence


in the following pa rtic ula rs :
a. The motion unde r thi s Rule i s grounde d on preliminary
objections while that under Rule 33
is
based on
insufficiency of evidence.
b. The motion here may be filed by any defending part y
a ga inst whom a claim is a ssert ed in the action, while a
de m urre r to evidence may be filed only by the defendant
against the complaint of the plaintiff.
c. The motion under this Rule should be filed within the time for
but prior to the filing of the answer of the defending party to
the pleading asserting the claim against him. The de m urre r
to evidence in Rule 33 may be filed for the dismissal of
the case only after the plaintiff has completed the
pre se ntat ion of his evidence.
d.The re ve rsal on appeal of a dismissal ordered under this
Rule produces different effects from the same reversal of a
dismissal obtained under Rule 33.
2. The former Sec. 2 of this Rule provided that a motion to
dismiss hereunde r may be filed by an original defendant, by
a third-part y defendant, by a plaintiff in a counterclaim, or
by a co-party in a cross-claim.
Although said former
provision has not been reproduced in this amended Rule,
the procedure is still the same as Sec. 1 hereof merely
simplified the rule by providing that such motion to dismiss
may be filed by a party "(w)ithin the time for but before
filing the answer to the complaint or pleading asserting a
claim."
3. A motion to dismiss hypothetically admits the trut h of the
facts alleged in the complaint. Such admis sion, however,
is limited only to all material and relevant facts which are
well pleaded in the complaint. It does not admit the trut h of
mere epit het s charging fraud, nor allegations of legal
conclusions, or erroneous statem ent s of law. The
hypothetical admission of the truth of material

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SE C . 1

and relevant facts well pleaded in a complaint does not


extend to inferences or conclusions drawn from such facts,
even if alleged in the complaint; nor mere inferences or
conclusions from facts not sta t e d; nor to m a t t e r s of,
evidence, surplusa ge or irrelevant m at t e rs (De Dios vs.
Bristol Laboratories fPhil.J, Inc., et al., L-25530, Jan. 29,
1974); nor does it cover allegations of fact the falsity of
which is subject to judicial notice, for, in resolving a motion
to dismiss, the court may consider other facts within the
range of judici al notice as well as re l e va n t laws and
jurisprudence which courts are bound to take into account
(Bahez Electric Light Co. vs. Abra Electric Cooperative,
Inc., et al., G.R. No. 59480, Dec. 8, 1982). Nei the r does
such h ypothetica l admission extend to facts which are
legally impossible, nor to facts inadmissible in evidence,
nor to facts which appear by record or document included
in the plea dings to be unfounded (Tan vs. Director of
Forestry, et al., L-24548, Oct. 27, 1983; Marcopper Mining
Corp. vs. Garcia, G.R. No. 55935, July 30, 1986).
Except in those cases where the court may dismiss a
case motu proprio, an action cannot be dismissed on
a
ground not alleged in the motion therefor even if said
ground, e.g., pre sc ri pt i on, is provided for in Rule 16
(Malig, et al. vs. Bush, L-22761, May 31, 1969), unless
such fact of prescripti on a ppea r s in the alle ga tions of
the complaint or in plaintiffs' evidence (Garcia vs. Mathis,
etc., et al, L-48557, Sept. 30, 1980). With much more
reason should an order of dismissal be nullified if it is based
on a ground not authorized by Rule 16, i.e., for supposedly
being moot and academic (Borje vs. CFI of Misamis Occ,
etc., et al, L-49315, Feb. 27, 1979).
4. The former doctrinal policy was tha t a pa rt y may challenge
the jurisdiction of the court over his person by making a
special appeara nce through a motion to dismiss ba se d on th
e ground, e.g., of in va li di t y of service of summons, and by
filing such motion, he will not thereby be deemed to have
submitted himself to the jurisdiction of
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T O DI SMI S S

SEC . 1

the court. However, if the same motion also raised other


g r o u n d s or in voke d some a ffi rm a t i v e relie f whi ch
necessarily involves the exercise of the jurisdiction of the
court, such special appearance will be of no avail and the
part y is thereby deemed to have submitted himself to the
jurisdiction of the court. Thus, where the defendant filed
a motion to dismiss on the ground that summons served
on him was invalid and, therefore, that the court did not
acquire jurisdiction over his person, but the same motion
sets forth a not he r ground under then Art. 222 of the
Civil Code (lack of showing tha t ea rne st efforts were
exerted to effect a compromise between members of the
same family) and prayed "for such other relief as may be
deemed "appropriate and proper," the reservation in said
motion that defendant was making a special appearance
to contest the court's jurisdiction over his person is nullified
and should be disre garde d (De Midgely vs. Ferandos, L34313, May 13, 1975). The same rule applied where the
defendant challenged the court's jurisdiction over its person
for invalidity of service of process but at the same time
raised the other ground of prescription in its motion to
dismiss (Republic vs. Ker & Co., Ltd., 124 Phil. 823).
5. However, in La Naval Drug Corp. vs. CA, et al. (G.R. No.
103200, Aug. 31 , 1994), the Suprem e Court decided to
reexamine and abandon the foregoing doctrine. It held that
while lack of jurisdiction
over the person of the
defendant may be duly and seasonably raised, his
voluntary appearance in court without qualification is a
waiver of such defense. Furthermore, even if he challenges
the jurisdiction of the court over his person, as by reason
of absence or defective service of summons, and he also
invokes other grounds for the dismissal of the action under
Rule 16, he is not deemed to be in estoppel or to have
waived his objection to jurisdiction over his person. In
support of this new doctrine, the observation may be added
that the defendant may after all invoke his objections
alternatively, hence he would not thereby be said to be

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SE C . 1

inconsistentl y challenging the jurisdiction of the court


and, at the same time, calling for the exercise of its
jurisdiction. The first questions the jurisdiction over his
person but the second, assuming the court has jurisdiction
over his person, impugns its jurisdiction over other aspects
of the case such as the fundamental requisite of jurisdiction
over the subject -matter which can only be conferred by
law. Be sides, the p re s e n t a t i o n of all objections the n
available subserve s the omnibus motion rule and the
concomitant policy against multiplicity of suits.
There were, however, some differences of opinion due
to certain ambiguous sta t em e nt s in the La Naval case.
Accordingly, Sec. 20 of Rule 14 now expressly provides
tha t the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdict ion over th e person of the
defendant shall not be deemed a voluntary appea rance
on his part.
6. . Whe re summ on s was not served on two of the
defendants and a lawyer filed, in their behalf but without
their authorit y, a motion for extension of time to answer, the
court does not acquire jurisdiction over said defendants.
Nei t he r was such j ur i s di c t i o na l defect cured by thei r
subseque nt filing of a motion for new trial as the same
was based precisely on such defect and to secure to said
defendants the opportunit y to be heard (Cavili, et al. vs.
Vamenta, Jr., etc., et al., G.R. No. 57771, May 31, 1982). For
obvious re a sons , th e c on si de ra t i on s di sc ussed in De
Midgely and La Naval have no application to this case
under the circ umsta nces obtaining the rein.
7. The controversy re gardi ng the ground of lack of jurisdiction
over the na ture of the action, separatel y from the subject
thereof, led to the elimination in this Rule of the former
which was supposedly an innovative ground in the 1964
Rules of Court. What may have been intended t he re i n were
cases a ssi gne d by law to qua si -j udi c ia l a ge n c i e s , suc h
a s i n t r a - c o r p o r a t e suit s whic h wer e

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M OT I O N T O D I S M I S S

SE C . 1

excl usi ve l y ve st e d i n th e Se c ur i t i e s an d E x c ha n g e
Commission, or to special courts such as tax suits which
were within the exclusive jurisdiction of the Court of Tax
Appeals. If so, this would properly constitute lack of
jurisdiction over the subject -matter if such cases are filed
in the regular trial courts. Within their respective levels,
the regular trial courts have uniform jurisdiction with
regard to the na ture of the actions they may entertain,
hence if the objection is as to the subject or object involved,
it would necessarily be on either subject-matter jurisdiction
or on venue considerations.
8. The jurisdictional grounds which may be invoked under the
present Rule are, therefore, confined to lack of jurisdiction
over the person of the defending part y and the subject matt er of the claim. The first has already been
discussed, but it must not be overlooked that the term now
used is not limited to the defendant but applies to all
defending pa rt i e s a ga i ns t whom claims are a sse rt e d
through other initiatory pleadings, such as counterclaims,
cross-claims and third-part y complaints. Jurisdiction is
obt ai ne d over th e ori gi na l de f e n d a n t by se rvi ce of
summons and over the other defending parties by service
of th e pl ea di n g cont ai ni n g the claim. Also, as now
amended, this Rule refers to the subject-matter of each
particular claim and not only to that of the suit, as it was
under the former Rule, which thereby applied only to the
complaint.
a. Jurisdiction over the subject-matter is determined by the
allegations in the complaint regardless of whether or not
the plaintiff is entitled to recover upon all or some of the
claims asserted therein. The defenses asserted in the
answer or motion to dismiss are not to be considered for
this purpose, otherwise the question would depend
e nti re l y upon th e de fe nda nt (Magay vs. Estandian, L28975, Feb. 27, 1976).

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b. Where a part y invokes the jurisdiction of a court to obtain


affirmative relief and fails, he cannot thereafter repudiate
such jurisdiction. While the issue of jurisdiction may be
ra i se d a t an y time , he i s e st o pp e d as i t i s t a nt a m o un t to
speculating on the fortunes of litigation (Crisostomo, et al
vs. CA, et al., L-27166, Mar. 26, 1970).
c. Where the jurisdiction of the court is challenged and the
court defers resolution of the motion or denies the same,
certiorari and/or prohibition will lie as it would be futile for
the court to go ahead if it has no jurisdiction over the
case. The same rule applies where the ground is improper
venue, as the trial court, i f the petition turn s out to be
well founded, is acting in excess of its jurisdiction (San
Beda College vs. CIR, 97 Phil. 787; University of Sto.
Tomas vs. Villanueva, etc., et al, 106 Phil 439; Time, Inc. vs.
Reyes, etc., et al, L-8882, May 31, 1971). This ruling is still
good but with the modification that, pursua nt to amended
Sec. 3 of this Rule, the court
can no longer defer
resolution of the motion.
d. I t has been held tha t even i f the claim in the complaint was
below the jurisdictional limit for the then Courts of Fi rs t
In st a nc e , if the de fe nda nt , i nste a d of moving to dismiss,
filed a counterclaim for P12,000 which was then within the
exclusive original jurisdiction of said Courts of First
Instance, such counterclaim cured the defect in the complaint
(Zulueta, et al. vs. Pan American World Airways, Inc., L-28589,
Resolution on Motion for Reconsideration, Jan. 8, 1973). It
is submitted, however, tha t said resolution, under the facts
therein, was more properl y sust ainable under the principle
of estoppel by laches on the par t of the defendant, as
discussed in the preliminary chapte r of this book, and which
principle was also relied on by the Su pr e m e Court in its
aforesaid resolution in tha t case.
e. Where the owner of a condominium corporation sold
unit thereof on install ment s with reservation of

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ownership until the price is fully paid, and the buyer


defaults, the courts, and not the Securities and Exchange
Commission, have jurisdiction over the nature of the action
because the owner remains as a stockholder for the unit
sold, hence no intra -corporate issue is involved (Sunset
View Condominium Corp. vs. Campos, Jr., etc., et al.,
G.R. No. 52361, April 27, 1981). Also, an action to compel
a corporation to issue shares of its capital stock in payment
of its contractual obligation and undertaking in favor of
the plaintiff will not be dismissed on the ground that the
court has no jurisdiction over the nature of the action since
such a situation does not involve an intra-corporate matter
c o n t e m p l a t e d in P.D . 902- A an d i s not wi t hi n th e
jurisdiction of the Securities and Exchange Commission
(DMRC Enterprises vs. Este del Sol Mountain Reserve, Inc.,
G.R. No. 57936, Sept. 28, 1984). Likewise, an action to
compel the corporation to re gister the shares of stock
allegedly sold to plaintiffs does not involve an intra-corpo
rate matte r as plaintiffs are not yet stockholders but are
only seeking to be registered as such (Rivera, et al. vs.
Florendo, et al, G.R. No. 57586, Oct. 6, 1986). However,
an action to compel the defendant corporation to render
an accounting and distribution of the shares of stock, with
the dividends due thereon, of plaintiffs' predecessor-ininterest is an intra -corporate conflict and is not within
the jurisdiction of the courts but of the Securities and
Exchange Commission
(Malayan Integrated Industries
Corp. vs. Mendoza, etc., et al, G.R. No. 75238, Sept. 30,
1987).
See, in this connection, the Interim Rules of Procedure
for Intra-Corporate Controversies (AM. No. 01-2-04-SC),
i m p l e m e nt i n g th e pr oc e du ra l c ha nge s in R.A. 8799
(Appendix W).
9.

Where a motion to dismiss for improper venue is


erroneousl y denied, the remedy is prohibition (Enriquez
vs. Macadaeg, 84 Phil. 674; Bautista vs. De Borja, et al, L20600, Oct. 28, 1966).

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10. Where the plaintiffs filed the action in a court of improper


venue and thereafter submitted to its jurisdiction, the issue
of venue was thereby waived and the y are in estoppel to
repudiate or question the proceedings in said court (Vda.
de Suan, et al. vs. Cusi, et al., L-35336, Oct. 27, 1983).
11. . Objection to venue is also impliedly waived where the
part y enters into trial, cross-examines the witnesses of th e
a d ve r s e
pa r t y
an d
a d d u c e s e vi de nc e (Paper
Industries Corp. of the Phil. vs. Samson, et al., L-30175,
Nov. 28, 1975).
12. Lack of legal capacity to sue means that the plain tiff is
either not in the exercise of his civil rights or does not have
the charac ter or re pre se nta t i on tha t he claims (Lunsod vs.
Ortega, 46 Phil. 664).
a.. Whe r e th e pl a i nt i ff i s no t th e rea l pa r t y in interest,
the ground for the motion to dismiss is lack of cause of
action (Casimiro vs. Roque, et al., 98 Phil. 880).
b.A forei gn c o r p o r a t i o n doing b u s i n e s s in th e Philippines
wit hout the requisite license to do so cannot m ai nt ai n any
suit in the Philippines (Sec. 69, Act 1459, now Sec. 133,
Corporation Code; Marshall-Wells Co. vs. Elser & Co., 48
Phil. 70; Atlantic Mutual Insurance Co., Inc. vs. Cebu
Stevedoring Co., Inc., L-18961, Aug.
31, 1966), but not
where the case involves a mere isolated tra nsacti on (Aetna
Casualty & Surety Co., Inc. vs. Pacific Star Line, L-26809,
Dec. 29, 1977; Hathibhai Bulakhidas vs. Navarro, et al, L49695, April 7, 1986). But if the said foreign corporation
is sued in our courts, it may, by wri t of prohi bit i on, seek
relief a ga i n s t th e wrongful a ssum ption of jurisdiction and
its petition therefor need not aver its legal capacit y to
instit ute said proceeding (Time, Inc. vs. Reyes, etc., et
al, supra).
c.

The issue of plaintiffs lack of legal capacity to sue cannot


be raised for the first time on appeal where the

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de f e n d a n t de al t wit h th e former as a pa rt y in th e
proceedings below (University of Pangasinan Faculty
Union vs. University of Pangasinan, et al., G.R. No. 63122
Feb. 21, 1984).
13. The pendency of another action, or litis pen dentia, as a
ground for a motion to dismiss, requires that the pa rti e s
to the action are the same; tha t ther e i s subst ant ial
identit y in the causes of action and reliefs s o u g h t ; an d t h a
t th e re s u l t o f th e first a ct i o n i s dete rmi nati ve of the
second in any event (Northcott & Co. vs. Villa- Abrille, 41
Phil. 462) and regardless of which part y is successful
(Arceo vs. Oliveros, et al., L-38251, Jan. 31, 1985). The motion
to dismiss may be filed in eithe r suit, not necessaril y in
the one instit ute d first (Teodoro vs. Mirasol, 99 Phil. 150;
Magsaysay vs. Magsaysay, et al., L-49847,
July
17,
1980).
The Supreme Court has repeatedl y held, however,
that when the elements of litis pendentia exist, the action
filed later should be abated, based on the maxim that qui
prior est tempore, potior est jure (he who is before in time
is the better in right). This is especially true where in the
action first filed, th e court ha s a l re a d y commenced
proceedings (Pacsports, Phils., Inc. vs. Niccolo Sports,
Inc., G.R. No. 141602, Nov. 22, 2001).
The pendency of an administrative case between the
parties does not generally constitute litis pendentia in
another civil or criminal case between them (Solandro
vs. Ramos, et al., L-20408, April 27, 1967). There can be
litis pendentia if the same cause of action is the subject of
a complaint in one case and of a counterclaim in another
as long as the other requisites are pre se nt (Arceo vs.
Oliveros, et al., supra). This ground is also referred to in
some decisions as lis pendens or outer action pendant
(see Buan, et al. vs. Lopez, G.R. No. 75349, Oct. 13, 1986).
14. Res judicata, as a
ground for dismissal, requires a
previous final judgment in a case prosecuted between
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the same parties involving the same subject -matter and


cause of action (Roman Catholic Archbishop vs. Director
of Lands, 35 Phil. 339). The trial court can take judicial
notice of the finality of a judgme nt previousl y decided by
it and the fact that the same case is now pending before
it, the defeated part y having refiled the same (Baguiao
vs. Jalagat, et al., L-28100, Nov. 29, 1971). The principle
of res judicata applie s to all cases and proc e e di n gs,
including land re gistrati on and ca da st ra l proceedings
(Republic vs. Estenzo, L-35376, Sept. 11, 1980). See
Secs. 47 and 48, Rule 39 and the notes the re unde r.
15. The defense of prescription is waived and cannot be
considered on appeal if not raised in the trial court (Ramos
vs. Osorio, L-27306, April 29, 1971; Director of Lands
vs. Dano, et al., L-31749, Feb. 21, 1980). Howe ve r, i f th e
a ll e ga t i ons of th e c om pl a i nt , or the evidence presented,
clearly indicate tha t the action has pre sc ri be d , or whe r e
t he r e i s no issue in fact as to prescription, the defense of
prescription is not deemed waived by defendant' s failure to
allege the same (Chua Lamko vs. Dioso, 97 Phil. 821; Garcia vs.
Mathis, supra). Generall y, estoppel and prescription cannot
be invoked a ga i n s t th e St a t e (Republic vs. CA, et al.,
L-45202, Sept. 11, 1980). En contra, note tha t the rule in
criminal cases is different, as discussed in Sec. 9, Rule
117.
16. A motion to dismiss on the ground of prescription will be
given due course only if the complaint shows on its face tha t
the action ha s alrea dy prescri be d (Sison vs. McQuaid, 94
Phil. 201; Francisco, et al. vs. Robles, et al,
94 Phil. 1035; Aznar III, et al. vs. Bemad, etc., et al,
G.R. No. 81190, May 9, 1988). If it does not so appear,
the determination of the motion to dismiss must be deferred
until trial (Cordova vs. Cordova, 102 Phil. 1182; Seno, et
al. vs. Mangubat, et al., L-44339,
Dec.
2,
1987).
See, however, Sec. 3 of this Rule which now prohibits
deferment of the resolution of the motion.

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17. Whe n th e groun d for di sm i s sa l i s tha t th e complaint


st a te s no cause of action, such fact can be determined only
from the facts alleged in the complaint (Mindanao Realty
Corp. vs. Kintanar, et al., L-17152, Nov. 30, 1962) and
from no other (Marabilles vs. Quito,
100 Phil. 64; Boncato vs. Siason, et al., L-29094, Sept. 5,
1985), and the court cannot consider other matters aliunde
(Salvador vs. Frio, L-25352, May 29, 1970). This implies
that the issue must be passed upon on the basis of the
allegations assuming them to be true and the court cannot
inquire into the trut h of the allegations and declare them
to be false; otherwise, it would be a procedural error and
a de nial of due proce ss to th e plaintiff (Ventura vs.
Bernabe, L-26769, April 30, 1971; Galeon vs. Galeon, et
al., L-30380, Feb. 28, 1973). The exception was provided
by the former Sec. 2, Rule 9, i.e., where the motion to
dismiss on this ground could be filed during the trial, in
which case the evidence presented was to be considered.
Also, i t has been held that under this ground the trial
court can consi de r all the pl ea di ngs filed, incl udi ng
annexes, motions and the evidence on record (Marcopper
Mining Corp. vs. Garcia, G.R. No. 55935, July 30, 1986),
including doc um e nt a r y evidence stipulat ed upon and
which is before the court (Santiago vs. Pioneer Savings
& Loan Bank, et al., G.R. No. 77502, Jan. 15, 1983).
However, it has likewise been held that even if the
complaint stated a valid cause of action, a motion to dismiss
for insufficiency of cause of action will be granted if
documentary evidence admitted by stipulations discloses
facts sufficient to defeat the claim and enables the court
to go beyond the disclosures in the complaint. In such
instances, the court can dismiss a complaint on this ground
even wit hou t a he a ri ng , by t a ki n g into acc ount the
discussions in said motion and the opposition theret o
(Tan vs. Director of Forestry, et al., L-24548, Oct. 27, 1983). This
controversy which appeared to have been due to confusion
over the sit ua ti ons where in the complaint

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does not allege a sufficient cause of action and tha t


wherein, at the trial, the evidence does not sust ain the
cause of action alleged, has been clarified by incorporating
said Sec. 2 in an amended form as the present Sec. 1 of
Rule 9 . Refer to sai d new p ro vi s i o n an d th e not e s
the re unde r.
a . C o u rt s sh ou l d e xe rc i s e u t m o s t ca r e an d
c i rc um s pe c t i o n i n p a s s i n g upo n mot i on s t o di sm i s s
based on this ground (Militante us. Antero, et al., L-27940,
June 10, 1971). Th e tes t is w h e t h e r , a s s u m i n g th e
alle ga tions of fact in the complaint, a valid j udgm e n t
could be rende red in accordance with the pra yer in the
complaint. Where the alle gations are sufficient but the
veracity of the facts are assailed, the motion to dismiss
should be denied (Suyom, et al. us. Collantes, et al., L40337, Feb. 27, 1976).
b. Where the facts alleged to make out the principal cause of
action and relief are insufficient, the case should be
dismissed and plaintiff cannot rely on ancillary m at t e rs in
the complaint to make out a cause of action. Thus, when
the action is for cancellation of the defendant ' s title but the
allegations therein are inadequate, plaintiff cannot lean on
his allegations of supposed im proveme nt s made on the
land as these are purel y ancillary to the principal relief
sought (Gabila us. Barriaga, L 28917, Sept. 30, 1971).
Nei the r can such defect be cured by the allegations in a
com pla i nt in i n t e r ve n t i o n filed by a thi r d part y (Nacar
us. Nistal, et al., L-33006, Dec. 8, 1982).
c. Where a complaint does not contain all the facts constit uti ng
the plai nti ffs cause of action, it is subject to a motion to
dismiss. However, if the defendant permits e vi de nc e to be
i nt ro duc e d , wi t ho u t objection, whic h s up pl i e s th e
ne c e s s a r y a l l e ga t i o n i n suc h defecti ve complaint, this
evidence cures the defects of such complaint which may no
longer be dismissed on tha t account and the court shall
awa rd such relief as is consistent with the

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case made out by the pleadings and the evidence (Pascua


us. CA, et al., G.R. No. 76851, Mar. 19, 1990).
18. Unlike a motion to dismiss on the ground that the
complaint states no cause of action, a motion invoking the
St a t ut e of Fra uds may be filed even if the absence of a
cause of action does not appe a r on the face of the
compla int . Such abse nce may be proved duri n g the
hearing of the motion to dismiss on said ground (Yuvienco,
et al. us. Dacuycuy, etc., et al., G.R. No. 55048, May 27,
1981). For the Stat ute of Fra uds, see Arts. 1403(2), 1405
and 1406, Civil Code.
19. The former Rule did not provide specific grounds for a
motion to dismiss where the action, was filed without the
plaintiff having exhausted all administrative remedies
before going to court, a basic rule of political law which is
accepted in adjective law. Similarly, it did not have any
such provision, because it was not then contemplated, for
th e s i t u a t i o n whe r e pri o r re f e r ra l for c onci l ia t i on
p r o c e e d i n g s wa s r e q u i r e d b y th e K a t a r u n g a n g
Pam ba ra nga y Law (P.D. 1508), and later by the Local
Government Code (R.A. 7160), before the case may be filed
in court and th e plaintiff did not comply with such
prerequisite. The remedy then was to authorize a motion
to dismiss such action for failure to state a cause of action
or even for p re m a t ur i t y , despite the dubiet y of such
grounds.
On the other hand, then Sec. l(j) of said Rule provided
as a ground for a motion to dismiss the fact that the suit
was between members of the same family and no earnest
efforts towards a compromise have been made, which
provision was actually taken from Art. 222 of the Civil
Code. T he s e t h re e s i t u a t i o n s , an d ot he r s i m i l a r
contingencies, are now embraced in and assailable under
the new ground for dismissal provided in the revised Rule,
that is, non-compliance with a condition precedent for the
filing of the claim.
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Save for the change in terminology, therefore, the


former rulings by the Supreme Court on said situations
are still applicable mutatis mutandis and are wort h
reproducing herein, but with the caveat on the grounds
then availed of, as provided in the former Rule.
a . W h e r e th e pl a i nt i f f ha s no t e x h a u s t e d all
admini st rati ve remedies, the complaint not having alleged
the fact of such exhaustion, the same may be dismissed
for lack of cause of action (Pineda vs. CFI of Davao, et al., L12602, April 25, 1961; Sarabia vs. Sec. of Agriculture and
Natural Resources, L-16002, May 23, 1961; Gone, et al. vs.
District Engineer, et al, L-22782, Aug. 29, 1975; Abe-Abe, et al.
vs. Manta, et al, L-4827, May 31, 1978), although it does not
affect the jurisdiction of the court over the subje ct matt er (Mun. of La Trinidad, et al. vs. CFI of BaguioBenguet, et al, L-33889, June 28, 1983). If this objection
is not raised at the proper time, it is waived and the court
can try the case (C.N. Hodges vs. Mun. Board, etc., et al,
L-18276, Jan. 12, 1967; Soto vs. Jareno, et al, L-38962, Sept.
15, 1986). For the instances where exhaustion of
admini st rati ve remedies is not required, see Note 7 under
Sec. 5, Rule 1.
b. I t was believed tha t the same doctrinal rules will apply where
the case was covered by the Ka t a r un ga n g Pa m ba ra n ga y
Law (P.D. 1508) and not excepted from the compulsory
process of arbit rati on required therei n as a precondition for
filing a complaint in court. Thus, where the complaint
does not state tha t it is one of the excepted ca se s , or i t does
not alle ge pri o r a v a i l m e n t of said conciliation process, or
it does not have a certification that no conciliation or
se t tl e me nt had been re ache d by the pa rt ie s, the case should
be dismissed on motion. This applies to cases cognizable by
both the inferior courts and the Regional Trial Courts
(Morata vs. Go, et al, G.R. No. 62339, Oct. 27, 1983).
Su bs e q ue nt l y , in Royales, et al. vs. Intermediate
Appellate Court, et al. (G.R. No. 65072, Jan . 3, 1984),

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where the defendant-appellant had participated in the trial


court w i t h o u t an y in voc at i on of P.D. 1508 and th e
j u d g m e n t t h e r e i n ha d become e xe c ut o r y , bu t said
defendant thereafter sought the annulment of the decision
for alleged lack of jurisdiction, the same was denied under
the doctrine of estoppel by laches as held in Tijam vs.
Sibonghanoy (L-21450, April 15, 1968). Non-compliance
with P.D. 1508 only results in lack of cause of action or
p r e m a t u r i t y (see Vda. de Borromeo vs. Pogoy, G.R.
No. 63277, Nov. 29, 1983; Peregrina, et al. vs. Panis, et
al, G.R. No. 56011, Oct. 31, 1984). The sit uati on is
analogous to non-exhaustion of administrati ve remedies
(Gone, et al. vs. District Engineer, et al, supra) or, as
formerly framed, the lack of earnest efforts to compromise
suits between family members (then Sec. lfjj, Rule 16;
Peregrina, et al. vs. Panis, et al, supra; cf Agbayani vs.
Belen, et al, G.R. No. 65629, Nov. 24, 1986).
This objection, not being jurisdictional in nature, is
deemed waived if not raised in a motion to dismiss (Ebol
vs. Amin, et al, G.R. No. 70237, Mar. 18, 1985; Gonzales
vs. CA, et al, G.R. Nos. 59495-97, June 26, 1987; cf.
Millare vs. Hernando, et al, G.R. No. 55480, June 30,
1987; Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29,
1988).
Th e c o m p l a i n t ma y b e d i s m i s s e d whe r e th e
complainant, after due notice, wilfully fails to appear on
the date set for mediation, conciliation or arbitra tion.
Upon a si m il a r failure of re sponde nt to appear, any
compulsory counterclaim he has made shall be dismissed
and may not be filed in court and complainant shall be
issued a certification for filing his action in the proper
court, g o v e r n m e n t agenc y or office (Alinsugay vs.
Sagampang, et al, G.R. No. 69334, July 28, 1986).
c.

The fact tha t the suit is exclusivel y be t we e n members of


the same family is a ground for dismissal if no earnest
efforts at compromise had been made (Art. 222, Civil
Code; Art. 151, Family Code).
This ground is,
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the re fore , not a va il a ble wher e a com promi se of th e


controversy is not permitted by law, as where it involves
civil stat us, validity of marriage or legal separation,
grounds for legal separation, future support, jurisdiction
and future legitime (Art. 2035, Civil Code). The same
rule applies even if the complaint asks for support in
a rrea rs, which is permitted to be compromised, but it also
seeks future support (Mendoza vs. CA, et al., L-23102,
April 24, 1967). As to who are considered membe rs of a
"family," Art . 217 , Civil Code, provi de d tha t family
relations shall include those (1) between husband and wife;
(2) between parent and child; (3) among other a sce nda nts
and their desce nda nts; and (4) among brothers and sisters
(Gayon vs. Gayon, L-28394, Nov. 26, 1970). Art. 150 of the
Famil y Code am e nde d th e foregoing e n um e ra t i o n
regarding siblings, to specify "whether of the full or halfblood."
Failure to allege in the complaint tha t ea rne st efforts
at compromise had been made by the plaintiff before filing
the action is not a ground for a motion to dismiss if one of
the parties is a st ra n ge r (Magbaleta vs. Gonong, L-44903,
April 25, 1977) or where the suit is between collateral
relatives who are not brot he rs or sisters and, therefore,
not me m be rs of the same family (Mendez vs. Bionson, L32159 Oct. 28, 1977).
20. . The doctrine of forum non conveniens is not a gr o u n d
for a m o t i o n t o
d i s m i s s u n d e r thi s Rul e .
Conceptuall y, this means tha t a court, usuall y in conflictsof-law cases, may refuse impositions on its jurisdiction
where it is not the most convenient or available forum and
the pa rtie s are not precluded from seeking
remedies
elsewhere (Bank of America, etc. vs. CA, et al., G.R.
No. 120135, Mar. 31, 2003). More ove r, th e pr op ri e t y of
di sm issi ng a case on this principle re qui re s a factual
de term inat ion, hence it is more properly considered as a
m at t e r of defense. The trial court, consequently, has
the discretion to abstai n from assuming jurisdiction over
the

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the case on this ground (Raytheon International, Inc. vs.


Rouzie, Jr., G.R. No. 162894, Feb. 26, 2008).
Thus, for instance, where the defendant 's petition for
review in the Court of Tax Appeals was dismissed nolle
prosequi and the Government instituted the tax collection
suit in the Regional Trial Court as a consequence thereof,
but during the pendency of said tax collection suit, the
de fe nda nt ' s pe ti t i o n for re view in th e Court of Tax
Appeals was reinstated, said defendant can then move for
dismissal of the tax collection suit in the Regional Trial
Court on the ground of litis pendentia even if he had
already filed his answer therein.
21 . Section 1 of this am e nde d Rule lays down a
branch of the so-called "omnibus motion rule" which
provides tha t defenses or objections not pleaded either in
a motion to dismiss or in the answer are deemed waived,
except the objections specified therein which are considered
not waivable.
a. Lack of jurisdiction over the subject matter may be invoked
as a defense at any stage of the action, even if no such
objection was raised in a motion to dismiss or in the
answer, and it may be so claimed even after the trial had
commenced (Ker & Co. vs. Court of Tax Appeals, et al,
L-12396, Jan. 31, 1962).
b. It will readily be observed that in said Section 1, thre e ot he r
exc e pt i ons ha ve been expre ssl y adde d, namely, that (1)
there is another action pending between the same parties
for the same cause (litis pendentia), (2) the proceeding is
barred by a prior judgment (res judicata), and (3) th e case wa
s e xti n gui se d by th e s t a t ut e of limitations (prescription).
These additional exceptions were not explicitly provided
for in the 1964 Rules of Court, particularly Section 2 of Rule
9 thereof. Notably, it is clearly stated that any of these
additional exceptions may appear in "the pleadings or
the evidence of record."

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SE C . 3

c. Where any of the four defenses are pre se nt in the case,


Section 1 directs tha t the court shall dismiss the claim. If,
despite such directive, the court shall fail to do so, the
logical and speedy remedy of the defendant is to move to
dismiss the claim re gardless of the stat us of the initiatory
of responsive stat us of the pleadings vis-a-vis each other.
Ma nda m u s to compel such dismissal may thereafter be
availed of as the successive remedy should th e cour t b e
r e c a l c i t r a n t de spi t e th e fact tha t such dismissal is its
ma ndat or y duty. This is aside from such a d m i ni st ra t i v e
sa nc ti ons as may be w a r ra n t e d by its nonfeasance in a
ministerial function.
d. In Matela vs. Chua Tay (L-16796, May 30, 1962), petitioner
challenged the propriet y of a motion to dismiss on the
ground of litis pendentia which was presented after the
movant ' s answer to the complaint had already been filed,
hence the dismissal of the case obtained the reb y should be
set aside. The Suprem e Court disregarded tha t contention
since both the answer (which was filed earlier) and the
motion to dismiss "contained the defense and/or groun d of
pe n de nc y of a n o t h e r a ct i on," an d all th e r e q u i s i t e s of
res judicata wer e p r e s e n t . Wit h th e aforementioned
am e ndm e nt of Section 1 of this Rule which now c onsi de rs
litis pendentia as an exce pti on to th e omnibus motion rule,
this controversy need no longer arise.
e. Quiaoit vs. Consolacion, et al. (L-41824, Sept. 30, 1976)
explained the dictum tha t a motion to dismiss may also be
allowed for some special reasons on grounds other tha n lack
of cause of action or lack of jurisdiction over the subjectmatter, even after trial of the case had al read y be gun but
evidence c onst it ut i ng a ground for dismissal of the case is
discovered during tha t trial. The reason given is tha t said
motion serves to suppleme nt the a ve rm e nt s of the
defendant ' s answer and to adjust the issues t o th e
pl a i nt i ff s t e st i m on y . This rul i n g wa s

288

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SE C . 1

reiterated in Ruiz, Jr. vs. CA, et al. (G.R. No. 101566,


Mar. 26, 1993).
f. Th e a m e n d m e n t of Sec t i o n 1 of thi s Rule providing that
the exceptions to the omnibus motion rule may be gle ane d
from the evidence on record (which includes the case
where trial has begun) forestalls any challenge on that
score. Also, the liberalization of other former holdings on
belated motions to dismiss thus affirm that procedural
rules, as essential tools for the obtention of justice,
should not be literally constricted by petrified logic in their
application. In any event, where the motion to dismiss
falls outside the general rule on allowable grounds and/or
time limits, but invokes judicial discretion due to special
reasons, as earlier noted, the better practice is to move for
leave of court therefor so that the situation may be
presented and the tribunal put on guard.
22. . An action cannot be dismissed on the ground that the
complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars or avail of the
proper mode of discovery (Galeon vs. Caleon, et al.,
L-30380, Feb. 28, 1973).
23. . Courts do not entertain moot questions or issues, t ha t is,
thos e whic h
cease
to p re s e n t a j u st i c i a bl e
controversy such that a resolution thereof would be of no
practical use or value and no legal relief is needed or called
for.
However, courts will still decide cases, otherwise moot
and academic, If (1) there is a grave violation of the
Constitution; (2) an exceptional character of the situation
and the pa ra m ount public interest is involved; (3) the
c o n s t i t ut i o n a l issue ra i se d re qui re s form ul a ti on of
controlling principles to guide the bench, the bar and the
public, and (4) the case is capable of repetition yet evading
review (Lu vs. Lu Ym Sr., et al. G.R. No. 153690, Aug. 26,
2008, which other cases jointly decided).

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SE C . 2

Sec. 2. Hearing of motion. At th e h e a r i n g of


th e moti on , the par ti e s shall su bmit the ir ar g u me n t s
o n th e q u e s t i on s o f law and thei r e vi de n c e o n th e
qu e s t i o n s of fact i nvol ve d e xc e p t th os e not avai l abl e
a t tha t t i me . S h o u l d th e c as e g o t o tr i al , th e
e v i d e n c e p r e s e n t e d d u r i n g th e h e a r i n g s h a l l
au t o ma ti c al l y be part of th e e v i de n c e of th e party
p r e s e n t i n g th e same , (n)
NO TES
1. This new provision of the Rule i nt roduc e s two im portant
changes, i.e., (1) at the he ari ng of the motion, the parties
shall submit all a rgum e nt s and evidence then a v a i l a b l e , an
d (2) th e e vi d e n c e p r e s e n t e d sh a l l automaticall y
constitute par t of the evidence at the trial of the pa rt y
who pre se nte d the sam e. I t will also be recalled that in
accordance with Rule 15, such motion shall be in writ ing
(Sec. 2) and tha t there must be a hea ring the reon (Sec. 4).
The obvi ous purpos e of t he s e a m e n d m e n t s i s to
avoid unnecessary delay in the trial court, and to have a
sufficient frame of refere nce shoul d th e tria l court ' s
disposition of the motion be questioned in a higher court.
2. . Unde r
the former Rule,
it
was held tha t the
absence of a formal he ari ng on a motion to dismiss which
was gra nte d does not constitute reversible error where the
motion is grounded on lack of cause of action and the
existence or lack of it is de term ina ble by reference to the
facts alleged in the challenged pleading. The issue raised in
the motion ha ving been fully discussed therei n and in the
opposition thereto, oral argume nts on the motion would be
an unnecessary ceremony. The i nte ndm e nt of the law in
re quiri ng a hea ring on the motion, tha t is, to avoid unfair
surprises and to enable the adverse part y to meet the
a rgum e nt s in the motion, have been sufficiently met under
the foregoing ci rcum st ance s (Castillo, et al. vs. CA,

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SE C . 3

et al., G.R. No. 52008, Mar. 25, 1988). It is believed that


such ruling may still be favorably considered under the
new Rules unde r the same c i rc um st a nc e s obt a i ni n g
therein.
Sec. 3. Resolution of motion. After th e h e a r i n g ,
th e c o u r t ma y d i s m i s s th e ac ti o n o r claim , de n y th e
m o t i o n o r o r d e r th e a m e n d m e n t o f th e p l e a d i n g .
Th e c o u r t shal l no t de fe r th e r e s o l u t i o n o f th e
m o t i o n for th e r e a s o n t ha t th e g r o u n d re l ie d upo n
i s no t i n d u b i t a b l e .
I n e ve r y ca se , th e r e s o l u t i o n shal l sta t e c l e a rl y
an d d i s t i n c t l y th e r e a s o n s t h e re f o r . (3a)
NOT E S
1. Amendatory of
Rule 16, there
the trial court
grant, to deny,

the previous provision on these aspects in


are now only three courses of action open to
when a motion to dismiss is presented, i.e, to
or to allow amendment of the pleading.

The former practice allowed a fourth option, which


was for the court to defer resolution of the motion if the
ground therefor did not appear to be indubitable. Not
only was that alternative productive of delay or abuse,
but it was often unnecessary and tended to afford a path
of least resistance. Furthermore, in view of the provisions
of the next preceding section requiring presentation of all
available arguments and evidence, there would be no need
for the trial court to defer action until the trial. The
evidence presented, and such additional evidence as it may
require, would enable it to rule upon the dubitability of
the ground alleged.
T hese c o ns i d e ra t i o n s resolve and set aside the
doubtful rule in Antam Consolidated, Inc., et al. vs. CA,
et al. (G.R. No. 61528, July 31, 1986) wherein the court

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SE C . 3

was allowed to defer resolution of a motion to dismiss since


the judge did not have the necessary facts to rule upon
the capacit y to sue of a foreign corporation; and they
reinforce the holding in Foster Parents Plan
Interna
tional/Bicol, et al. us. Demetriou, et al. (G.R. No. 74077,
Jul y 7, 1986) that it was gross error to defer resolution of
the motion where the grounds were lack of jurisdiction or
lack of cause of action since the allegations of the complaint
are deemed admitted and the issue can be resolved without
waiting for trial on the merits.
2. .

Wher e a he a ri n g wa s held an d d o c u m e n t a r y
evidence wa s pre se nt e d by the de fe nda nt, not on his
motion to dismiss but against the plaintiffs application
for a writ of pre limi nar y injunction, but said evidence wa s
a d m i t t e d by th e plaintiff, such e vi de nce can be
considered in resolving the motion to dismiss (Santiago
us. Pioneer Savings & Loan Bank, et al., G.R. No. 77502,
Jan. 15, 1988).

3. . Adopting previous doctrinal injunctions, such as tha t in


Continental Bank vs.
Tiangco (G.R. No. 50480, Dec. 14,
1979), it is now specifically required by this section tha t th e
re so l u t i o n o n th e motion shal l cl ea rl y an d distinctl y
state the reasons therefor. This proscribes the common
practice of perfunctoril y dismissing the motion "for lack of
merit." Such cavalier dispositions can often pose difficulty
and mi sunde rst a ndi n g on the par t of the aggrieved part y in
taking recourse therefrom and likewise on the hi ghe r
court called upon to resolve th e same , usuall y on
certiorari.
4. .

An or de r d e n yi n g a
m o t i o n to d i s m i s s i s
i nte rl oc ut or y
an d
not
a pp e a l a bl e
(Harrison
Foundry & Machinery, et al. vs. Harrison
Foundry
Workers Association, et al., L-18432, June 19, 1963), but an
order gr a n t i n g a motion to di sm i ss is final an d appe al a ble
(Monares vs. CNS Enterprises, 105 Phil. 1333 fUnrep.J).
However, if the order of dismissal is not an adjudication

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M OT I O N

T O DISMIS S

SEC . 3

on the merits, as where the venue is improperly laid, that


the plaintiff has no legal capacity to sue, litis pendentia,
that the complaint sta tes no cause of action or that a
condition p re c e de n t for filing the suit ha s not been
complied with, such dismissal is not a bar to another action
when the circumstances change and wa rra nt the refiling
and prosecution of the same.
5. While an order denying a motion to dismiss is interlocutory,
and non-appealable, if the denial was with grave abuse of
discretion or is without or in excess of jurisdiction,
prohibition will lie (see Moreno vs. Macadaeg, L-17908, April
23, 1968; Espiritu, et al. vs. Solidum, et al., L-27672,
July 25, 1973). Certiorari and prohibition are proper
remedies from such order of denial (Alban vs. Madarang, et al,
L-32963, Sept. 30, 1971; Van Dorn vs. Romillo, et al, G.R.
No. 68470, Oct. 8, 1985; Newsweek, Inc. vs. IAC, et al,
G.R. No. 63559, May 30, 1986; PNB
vs. Florendo, et al, G.R. No. 62082, Feb. 26, 1992).
6.

Where the defect is curable by am e ndm e nt as where the


complaint states no cause of action,
and
the court
u nc o nd i t i o na l l y re fuse s to allow a m e n dm e n t , the
same is reversible error (Macapinlac vs. Repide, 43 Phil.
770). However, the plaintiff must move for leave to amend
the complaint before the dismissal order becomes final
(Constantino vs. Reyes, L-16853, June 29, 1963). Also,
where the dismissal was merely for failure to allege earnest
efforts to compromise a suit between members of the same
family (Verzosa vs. Verzosa, L-25609, Nov. 27, 1968), now
subsumed under the ground of non-compliance with a
condition precedent, such refusal is improper as the
defect is curable by amendment. This presupposes, of
course, that there were really such earnest efforts as
alleged.

7.

A case should not necessarily be dismissed, on motion of


the defendant, because the
original
summons was
wrongfully served or there was failure of service.

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SE C . 4

The court can instead issue an alias summons for service


on the defendant (Far Corp. vs. Francisco, etc., et al.,
G.R. No. 57218, Dec. 12, 1986).
Sec. 4. Time to plead. If the moti o n is de n i e d ,
th e mova n t shall file hi s an sw e r w ithi n th e bal anc e
of th e pe r i o d p r e s c r i be d by Rul e 11 to w hi c h he
wa s e nti tl e d a t th e ti m e o f s e r v i n g hi s moti on , but
not less tha n five (5) day s in an y eve nt , c o m p u t e d
fro m hi s r e c e i p t o f th e n o t i c e o f th e d e n i a l . I f
th e pl e a di n g i s or de re d to be a me n de d , he shal l file
hi s a nsw e r w i thi n th e per i od pr e s c r i be d by Rule 11
c o u n t e d fro m s e r v i c e o f th e a me n d e d p l e a di n g ,
unl e s s th e c our t pr ovi de s a l onge r pe r i od. (4a)
NOTES
1. In the 1964 Rules of Court, Sec. 4 of this Rule
provided tha t where the motion to dismiss is denied or
re solution there of i s deferred, the de fe nda nt had the
entire re gl eme ntar y period all over again within which to
file his answer, reckoned from his receipt of the court's
order, unless otherwi se provided by said court. Prior
theret o, the rule was tha t the filing of a motion to dismiss
only suspe nded the runni ng of the re gl eme ntar y period
and, upon its denial, the defendant had only the balance
of the re gl eme ntar y period within which to file his answer.
This ame nde d section enuncia tes a change in policy and
revives in par t the old practice of gra nti ng the defendant
only the balance of the re glem enta ry period to which he
was entitled at the time he filed his motion to dismiss,
counted from his receipt of the denial order. The same
rule of granting only the balance of the period is followed
where the court, instead of denying the motion to dismiss,
orders the a m e n dm e n t of the pleading challenged by his
motion, in which case the balance of the period to answer
runs from his receipt of the amended pleading.

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T O DI SMI S S

SE C . 6

However, in order that the defendant may at least


not be unduly denied the opportunit y to file his responsive
pleading, in the first instance he shall be allowed not less
than 5 days to do so where the balance of the re glementary
period is less tha n that. In the second instance, the court
may provide a longer period under the same contingency.
2. When the period for filing the answer has been
suspended, as by defendant's filing of a motion for a bill
of particulars, a motion to dismiss may thereafter be filed
within the remaining period to file the answer since the
time to file the latter is coterminous with that for the former
(Dumanan, et al. vs. Butuan City Rural Bank, et al., L27675, Dec. 15, 1982).
Sec. 5. Effect of dismissal. Subjec t to the right
of a ppe al , an or de r gr anti n g a moti o n to di s mi s s
base d on p a r a g r a p h s (f) (h) and (i) of se c ti o n 1
hereof shall bar th e refili ng of the same ac ti on or
clai m, (n)
NOTES
1. The action cannot be refiled if it was dismissed on any
of these grounds: (a) res judicata, (b) prescription,
( c ) e x t i n g u i s h m e n t of th e claim or de m a n d , an d
(d) unenforceability under the Statute of Frauds.
2. On the matter of prescription, if what is referred to is tha t
the cause of action is barred by the sta t ute of
limitat ions, tha t is, tha t the action has prescribed (Arts.
1139 to 1155, Civil Code), the motion to dismiss shall be
grounded on par. (f) of Sec. 1. If what is involved is the fact
that the ownership or other real rights claimed have
prescribed, or a case of extinctive prescription is involved
(Arts. 1117 to 1138, Civil Code), then the ground for the
motion to dismiss should properly be based on par. (h) of
Sec. 1 since the plaintiffs claim or demand has been
extinguished.
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SE C . 6

Sec. 6.
Pleading grounds as affirmative defenses.
I f no moti o n to di s mi s s ha s bee n filed, an y of th e
g r ou n d s for di s mi s sa l pr ovi de d for in thi s Rule ma y
be pl e ade d as an affir mative de fe ns e in th e a nsw e r
and, in th e di s c r et i o n of th e court, a pr el i mi na r y
h e ar i n g ma y be had the re o n as i f a moti o n to di s mi s s
had bee n filed. (5a)
Th e d i s m i s s a l o f th e c o m p l a i n t u n de r th i s
s e c t i o n s h a l l b e w i t h o u t p r e j u d i c e t o th e
p r o s e c u t i o n in th e sa m e or s e p a r a t e ac t i o n of a
c ou n t e r c l ai m pl e a de d in th e an sw e r , (n)
NOTES
1. .

Unde r the
practi ce before
1964,
whe r e the
defendant filed a motion to dismiss and the same was
unconditionally denied, the grounds raised by him in said
motion could no longer be pleaded as affirmative defenses as
the resolution thereof had already been concluded by the
denial of his motion.
If he did not file a motion to
dismiss, then he could raise any of the grounds therefor as
a ffi rm a t i v e de f e n s e s i n hi s a n s w e r an d ha v e a
preliminary hea ring the reon as if a motion to dismiss had
been filed.
Despite the change of phraseology unde r the 1964
Rules, i t appe a rs tha t the same procedure applied, and
where the defendant did not move to dismiss he could
allege any of the grounds therefor, except improper venue,
as affirmative defenses in his answer. On the other hand,
where a motion to dismiss on the grounds of res judicata
and litis pendentia were unc ondit i onal l y denied,
said
grounds could no longer be raised as affirmative defenses
in the answer, as well as the other grounds to dismiss
available at the time the motion was filed, except those of
failure to state a cause of action and lack of jurisdiction
which were not deemed waived (Heirs of Juliana Clavano
vs. Genato, et al. L-45837, Oct. 28, 1977).

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SE C . 6

However, even if the defendant had moved to dismiss


but the ground relied upon by him was not definitely
resolved by the court, i.e., where resolution thereon was
deferred as the n allowed, such ground could still be
averred as an affirmative defense in the answer.
2. Under the present amended section, if no motion to dismiss
had been filed, any of the grounds for dismissal, including
improper venue, may be pleaded as affirmative defenses and
preliminaril y heard in the discretion of he court. The
provisions of Sec. 4, Rule 4 under the 1964 Rules of Court,
which requi red tha t im prope r venue should be raised in a
motion to dismiss otherwise it is deemed wai ved, has been
e li m i na t e d in the pre se n t revision.
Also, the ruling in the aforecited Clavano case should
be deemed modified by eliminating therefrom the reference
to the ground of failure to state a cause of action, since
tha t exception was based on the former provisions of
Sec. 2 of Rule 9 which, as earlier explained, has been
deleted and rephrased in Sec. 1 of the same Rule.
3. The second pa r a gr a p h of this section has now clarified the
effect
of the dismissal of the
complaint upon a
counterclaim duly pleaded in the action.
4. A motion to dismiss is not a responsive pleading, hence the
filing thereof does not preclude the plaintiff from doing what
he can lawfully do before the defendant files his answer,
i.e., amend his complaint (Rodriguez vs. Fernan, L-15143, Nov.
29, 1961; Soledad vs. Mamangun, L-17988, May 30, 1963) and
admission of such amended complaint may be compelled by
mandamus (Republic vs. Ilao, L-16667, Jan. 30, 1962).
5.An order granting a motion to dismiss, rendered after the
death of the plaintiff which was duly reported to the court
in a motion to substitute the deceased by his heirs but
before substitution was ordered, is invalid. The

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SE C . 6

right to the property involved was vested in the heirs upon


the death of their predecessor without the necessity for a
declaration of heirs, hence such order granting the motion
to dismiss denies them the right to be substituted as parties
in the case without their day in court (Bonilla vs. Barcena,
et al., L-41715, June 18, 1976).
6.Under this amended section, any of the
grounds for
dismissal provided for in this Rule, may be alleged as
affirmative defenses and a preliminary he ari ng may be
had there on if no motion to dismiss on any of said grounds
had been filed and resolved. Sec. 5(b) of Rule 6 enumera tes
some affirmative defenses such as fraud, illegality and
estoppel, and juri sprude nce has also provided ultra vires
acts and unconstit uti onal it y of the st a t ut e involved as
additional affirmative defenses. Since these defenses and
others by way of confession and avoidance are not among
the grounds for a motion to dismiss under Rule 16, while
the same may be alleged as affirmative defenses to be
proved as such during the trial, it would not be proper to
ha v e a p r e l i m i n a r y h e a r i n g t h e r e o n u n d e r th e
ci rcum st ance s and for the purpose contemplate d in this
section.
Th e f u r t h e r a m e n d m e n t e m p h a s i z e s t h a t th e
preliminary he ari ng authorized the rein is not mandatory,
since the grant thereof may be had in the discretion of
the court (246 Corporation, etc. vs. Daway, etc., et al.,
G.R. No. 157216, Nov. 20, 2003).

RULE 17
DISM ISSAL OF ACTIONS
Se c ti o n 1. Dismissal upon notice by plaintiff. A
c o mp l a i n t ma y be d i s mi s s e d by th e pl ai nt i f f by
fi l i n g a n o t i c e of d i s mi s s a l at an y ti m e be for e
ser vice of the answ e r or of a moti on for su mmar y
ju dg me nt . Upon suc h notic e bein g filed, the court
shal l i s s u e a n or de r c o n f i r m i n g th e d i s mi s s a l .
Unle ss ot h e rw i s e state d in the notice , the di s mi ssal
is w i t h ou t prejudi ce, e xce p t that a notice ope r ate s
as an adju di c ati on upo n the me r its whe n filed by a
pl ai nti ff wh o ha s onc e di s mi s se d in a c o m pe t e n t
cour t a n ac ti o n base d o n o r i nc l u di n g th e sam e
clai m, (la )
NOTES
1. The procedure under the former Sec. 1 of this Rule has
been maintained, but with the clarification that when the
notice of dismissal is filed by the plaintiff, the court shall
issue the corresponding order confirming the dismissal.
This set tles the former m i s un de rs t a n di n g regarding the
date when such dismissal became execu tory since there
was then no such provision for a court order which, being
final in na t ure , would require the corresponding entry.
2. Under this section, dismissal is effected not by motion but
by mere notice of dismissal which is a matter of right
before the defendant has answered or moved for a
sum ma r y j udgm e nt . Such dismissal is without prejudice,
except: (a) where the notice of dismissal so provides, (b)
where the plaintiff has previously dismissed the same case
in a court of competent jurisdiction, and
(c) even where the notice of dismissal does not provide
that it is with prejudice but it is premised on the fact of
299

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LA W C O M P E N D I U M

SE C . 2

pa ym e n t by the defendant of the claim involved (see


Serrano vs. Cabrera, 93 Phil. 774).
The two-dismissal rule requires, however, tha t both
dismissals are granted by a court of competent jurisdic
tion.
3. . To be more precise, however, wha t causes the loss by
a plaintiff of the right to effect dismissal of the action by
mere notice is not the filing of the defendant' s answer
with the court but the service on the plaintiff of said answer
or of a motion for summa ry judgment. Where the plaintiff
filed the notice of dismissal of his action in the court after
the filing of defendant ' s answer but before service thereof,
the plaintiff's notice to tha t effect ipso facto brought
about the dismissal of the pending action without need of
any order from the trial court (Go vs. Cruz, et al., G.R. No.
58986, April 17, 1989).
4. This section is also applicable to special proceed ings
(Ventura vs. Ventura, 106 Phil. 1165 [Unrep.]). The former
portion thereof re gardi ng dismissal or compromise of a
class suit has been transferred to Sec. 2 of this Rule since the
same are effected by motion, and not by mere notice, to the
court.
5. Where th e first compla int for foreclosure of a chatt el
mortga ge for non-pa yment of certain install ment s due
t h e r e u n d e r was dismi ssed with pre judice , a t the i ns t a nc e
of th e pl aint iff unde r thi s sec tion, a n o t he r complaint
later filed by him for non-pa yment of install me nt s
s u b s e q u e n t to those involved in th e first case should not
be dismissed on the ground of res judicata since said
second case involved different causes of action (Filinvest
Credit Corp. vs. Salas, et al, G.R. No. 63326, July 31,
1984).
Se c .
2.
Dismissal upon motion of plaintiff.
E x c e p t a s p r o v i d e d i n th e p r e c e d i n g s e c t i o n , a

300

RULE 17

DISMISSA L

O F ACTION S

SE C . 2

c ompl ai n t shall not be di s mi ss e d at the p l a i n t i f f s


i nstanc e save upo n appr oval of the court and upon
suc h te r m s an d c o n d i t i o n s a s th e c our t d e e m s
prope r. If a c o u n t e r c l a i m ha s been pl e a de d by a
d e f e n d a n t pr i o r t o th e se r vi c e upo n hi m o f th e
p l a i n t i f f s moti o n for di s mi ssal , the di s mi ssal shall
be li mi te d to the c ompl ai nt. The di s mi ssal shall be
w ith ou t prej udi ce to the right of the de f e n dan t to
pr os e c u t e hi s c o u n t e r c l a i m in a s e par at e ac ti o n
unl e s s w ithi n fifteen (16) days from notice of the
moti o n h e m a n i f e s t s hi s p r e f e r e n c e t o hav e hi s
c ou n te rc l ai m res ol ve d in the same ac ti on. Unle ss
ot h e r w i s e spe cifie d in the or der, a di s mi ssal under
this par ag r a p h shall be w ith ou t prejudice . A class
suit shall not be di s mi ss e d or c ompr omi se d w ithou t
the appr oval of the court. (2a)
NOTES
1. Prior to this amendatory Sec. 2, the rule was that the plaintiff
could not move for the dismissal of his com plaint if, before
the service of his motion therefor upon the defendant,
the latter had filed a counterclaim which could not remain
pending for independent adjudication by the trial court,
hence the defendant could object to the dismissal of the
action. Applying that provision, it was held that after the
defendant had answered, dismissal can be effected only by
order of the court on proper notice and he ari ng. Such
dismi ssal cannot be ordered over the defendant's objection
if the counterclaim of the defendant cannot remain pending
for independent adjudication, that is, a compulsory
counte rclai m (see Ynotorio vs. Lira, L-16677, Nov. 27,
1964; Lim Tanhu, et al. vs. Ramolete, et al, L-40098, Aug.
29, 1975). The dismissal under this rule was also without
prejudice, except (a) when other wise stated in the motion
to dismiss, or (b) when stated to be with prejudice in the
order of the court (see Vergara, et al. vs. Ocumen, et al.,
G.R. No. 53971, June 19, 1982).

RUL E

17

R E M E D I A L LA W C O M P E N D I U M

SE C . 2

A further qualifying doctrine was to the effect that


the rule tha t a complaint may not be dismissed if the
counterclaim cannot be independentl y adjudicated does
not apply to, and will not inure to the benefit of, a plaintiff
who deliberatel y pre ve nt s or delays the prosecution of his
own complaint. Especially is this true where the complaint
wa s di sm i s se d as a c onse que nc e of pl ai nt i ff' s bei ng nonsuited at the pre -t rial as he has the reb y virtuall y
abandoned his claims in his complaint (Sta. Maria vs.
CA, et al, L-30602, June 30, 1972).
Although the aforesaid doctrines must now yield to
the am e ndm e nt s in Sec. 2 , as he re unde r explained, the
ra ti ona le in th e Sta. Maria case tha t a plaintiff who
delays or pre vents the prosecution of his own complaint
s h o u l d no t be ne fi t t h e r e f r o m , a s b y r a i s i n g an y
objection to the appropri at e disposition of de fe nda nt ' s
counterclaim, is still a sound rule.
2. Under this revised section, where the plaintiff moves for th e
di sm i s sa l of his c o m pl a i n t to whic h a counterc laim has
been interposed, the dismissal shall be limited to the
complaint. Such dismissal shall be without prejudice to the
right of the defendant to either prosecute his counterc laim
in a se pa ra te action or to have the same resolved in the same
action. Should he opt for the first a lt e rnat i ve , the court
should rende r the corresponding order gra nti n g and
reserving his right to prosecute his claim in a se pa rat e
complaint. Should he choose to have his counterc laim
disposed of in the same action wherein th e com pla i nt had
been dismi ssed, he mus t mani fest such preference to the
trial court within 15 da ys from notice to him of pl a i nt i ff s
motion to dismiss. These alternati ve remedies of the
defendant are available to him regardless of whet he r his
counterclaim is compulsory or permissi ve. A similar
a lt e rnat i ve proce dure, with the same underl ying reason
therefor, is adopted in Sec. 6, Rule 16 an d Sec. 3 of thi s
Rule, whe re i n th e com pla i nt is

RUL E

17

D I S M I S S A L O F AC T I O N S

SE C . 3

dismissed on motion of the defendant or, in the latter


instance, also by the court motu proprio.
3.Secs. 1 and 2 of this Rule refer to the dismissal of the entire case
at the instance of the plaintiff, provided that, under Sec.
1, there has been no service of an answer of a motion for
summa ry judgment; and, under Sec. 2, the defendant has
not filed a counterclaim and the
court
deems the
dismissal proper. Absent such contingent considerations,
the plaintiff has the virtual freedom to desist from further
prosecuting any defendant by causing the dismissal of the
complaint.
This i s to be d i s t i n gu i s h e d from th e s i t u a t i o n
contemplated in Sec. 11, Rule 3 which allows parties to be
dropped or added by order of the court, on motion or motu
proprio at any stage of the action and on such terms as
are just. This refers to the maintenance of the case against
all parties, except that one or more defendants may be
excluded. It does not, however, comprehend whimsical
or irrational dropping of pa rtie s but contemplate s the
situation where there has been an erroneous inclusion
or misjoinder of parties. It presupposes that the original
inclusion of a defendant was made in the honest conviction
tha t i t wa s prope r bu t th e s u b s e q u e n t droppi n g i s
requested because it has turned out to be incorrect. It
does not mean that a plaintiff is free to join or implead
a n yb od y as a d e f e n da n t in a c o m pl a i n t only to
unceremoniously drop him later at the plaintiffs pleasure;
hence, the re quirem ent that the dropping be "on such
terms as are just" - just to all the other parties (Lim
Tanhu, et al. vs. Ramolete, et al, supra).
Sec . 3. Dismissal due to fault of plaintiff. If,
for no justifiable cause, the plaintiff fails to appear
on the date of the pr ese ntati on of his evi de nc e in
chief on the c ompl ai nt, or to pr os e c ute his action
for an un r ea s on a bl e length of ti me, or to c omply
wit h the s e Rul e s o r an y or de r o f th e c our t, th e
303

RUL E

17

REMEDIA L

LA W C O M P E N D I U M

SEC. 3

c o m pl a i n t ma y b e di s mi s s e d upo n mo t i o n o f th e
de f e n d a n t o r upo n th e court' s ow n moti on , w i t h ou t
pr eju di c e to th e right of the d e f e n da n t to pr os e c u t e
hi s c o u n t e r c l a i m i n th e sa m e o r i n a s e p a r a t e
ac ti on. This di s mi s sa l shall hav e th e effect of an
a d j u d i c a t i o n upo n th e me r i t s , u n l e s s o t h e r w i s e
de c l are d by th e court. (3a)
NO TES
1. Two im portant changes have been introduced by
this section. The dismissal of the case for failure of the
plaintiff to appear at the trial, to be valid, now requires
that (1) his non-appeara nce is without justifiable cause,
and (2) such prejudicious absence is limited to the date
or dates when the presentati on of his evidence in chief on
the complaint was scheduled or expected. The provision
in the former section referring to pl a i nt i ff s failure to
appear "at the time of the trial" could result in unfair if
not absurd results, considering the length of the period
of the trial and the different sta ges thereof whe rei n the
presence of the defendant and the other parties are not
even re qu i re d . Since th e p l a i n t i ff s pre se nc e i s now
required only during the presentati on of his evidence in
chief, his absence during the pre se ntat ion of the evidence
of the de fe nda nt or the ot he r pa rti e s , or even at the
re but ta l or subse quent sta ges of the trial, is not a ground
for dismissal.
2 . Th e sec on d s u b s t a n t i a l a m e n d m e n t t o thi s
section is with respect to the disposition of the defendant' s
counte rclai m in the e ve nt the pl a i nt i ff s compla int i s
dismissed. As already observed, he is here gra nte d the
choice to prosecute tha t counterclaim in either the same
or a se pa rat e action, just like the grant of tha t remedy in
Sec. 6 of Rule 16. It may be noted tha t in the pre se nt
i ns t a nc e , as well as unde r th e a fo re st a t e d Sec. 6 of
Rule 16, the defendant is not required to manifest his

RUL E

17

DI SMI SSA L O F ACTI ON S

SE C . 3

preference within a 15-day period, as in Sec. 2 of this Rule


The reason is that the motions to dismiss contemplated
in Sec. 6, Rule 16 and in this section are filed by the
defendant who perforce has already deliberated upon the
course of action he intends to take on his counterclaim
and which he may even manifest right in his motion to
dismiss the complaint. The dismissal in Sec. 2 of this Rule
is at the instance of the plaintiff, hence the defendant is
granted the time and also the duty to thus manifest his
preference within 15 days from notice, after an opportunity
to study the situation.
3. With the aforestated amendments in Secs. 2 and
3 l a yi n g down specific rul e s on th e di sp o si t i o n of
c ounte rc la i m s involved in the dismissed actions, the
cont roversia l doctrine in BA Finance Corporation vs.
Co, et al. (G.R. No. 105751, Jun e 30, 1993) has been
abandoned, together with the apparent confusion on the
proper application of said Secs. 2 and 3. Said sections
were distinguished and discussed in the author' s separate
opinion in that case, even before they were clarified by
the present amendments, as follows:
"Turning back to Rule 17, it is readily apparent
tha t Sections 2 and 3 thereof envisage different
factual and adjective situations. The dismissal of
the complaint under Section 2 is at the instance of
plaintiff, for whate ver reason he is minded to move
for such dismissal, and, as a matter of procedure, is
without prejudice unless otherwise stated in the order
of the court or, for that matter, in plaintiffs motion
to dismiss his own complaint. By reason thereof, to
curb any dubious or frivolous strategy of plaintiff for
his be ne fit or to obvi a te possi ble pre j udi c e to
defendant, the former may not dismiss his complaint
over the defendant ' s objection if the latter has a
compulsory counte rclai m since said counterc laim
would necessarily be divested of juridical basis and
defendant would be deprived of possible recovery

RUL E 1 7

R E M E D I A L LA W C O M P E N D I U M

SE C . 3

thereon in tha t same judicial proceeding.


"Section 3, on the other hand, contemplate s a
dismissal not procured by plaintiff, albeit justified by
causes imputable to him and which, in the present
case, was petitioner's failure to appear at the pre-trial.
This situation is also covered by Section 3, as extended
by j udic i a l i n t e r p r e t a t i o n , an d i s o rde re d upo n
motion of defendant or motu proprio by the
court.
Here, the issue of whe t he r defendant has a pending
count e rc l ai m , pe rmi ssi ve or compulsory, is not of
determinati ve significance. The dismissal of plaintiffs
complaint is evidently a confirmation of the failure of
evidence to prove his cause of action outlined therein,
hence th e dismi ssal is considered, as a matter of
evidence, an adjudication on the me rits. This does
not, however, mean tha t there is likewise such ab
sence of evidence to prove defendant' s counte rclai m
although the same arises out of the subject -matt er of
the complaint which was merel y te rmi na te d for lack
of proof. To hold ot he rw i s e would not only work
i n j u s t i c e to d e f e n d a n t bu t woul d be r e a d i n g a
fu rt h e r provi si on into Sec t i on 3 an d w r e s t i n g a
meani ng therefrom although ne ithe r exists even by
mere implication. Thus understood, the complaint
can accordingly be dismissed, but relief can never
theless be gra nte d as a ma tt e r of course to defendant
on his counterclaim as alleged and proved, with or
wit hout any reservation therefor on his part, unless
from his conduct, express or implied, he has virtually
consented to the concomitant dismissal of his coun
terclaim."
4 . I t ha s bee n held t ha t th e c i r c u m s t a n c e s set
out in this section are the only instances wherein the court
may dismiss a case on its own motion (Malig vs. Bush, L22761, May 31, 1969). Ne verthel ess, it should also be recalled
tha t if the court finds tha t i t has no jurisdiction

306

RUL E

17

DI SMI SS A L O F ACTION S

SE C . 3

over the subject -matter of the suit, that there is another


action pending between the same parties for the same
cause, or that the action is barred by a prior judgment or
by st a t ut e of limitations, the court shall dismiss the case
sua sponte (Sec. 1, Rule 9).
5. Unless otherwise provided in the order of the court, a
dismissal under this section is with prejudice. Thus, when
the dismissal does not contain any condition at all, it has
the effect of an adjudication on the merits as it is
understood to be with prejudice (Guanzon vs. Mapa, L-19249,
Feb. 28, 1963; cf. Insular Veneer, Inc. vs. Plan, L-40155, Sept.
10, 1976).
6. Failure to comply with a court order is ground for d i s m i s s a
l of th e cas e (Aranico-Robino vs. Aquino, L-46641, Oct. 28,
1977), such as where the plaintiff failed to ame nd his
pleading as ordered by the court (Dizon vs. Garcia, 110
Phil. 186), unless the order is null and void as where,
upon the de ath of the defendant, the court ordered the
plaintiff to amend his complaint contrary to Sec. 17 (now,
Sec. 16), Rule 3 which directs that in tha t case the heirs of
the defendant be merely subst i t ute d in lieu of the deceased
(Gojo vs. Golaya, L-26768, Oct. 30, 1970).
Also, the
dismissal of the case for failure of plaintiffs counsel to
manifest whether he was availing of or dispensing with
modes of discovery, as required by a clerk in the office of
the judge, is null and void as no such notice is authorized
by the Rules (Koh vs. IAC, et al., G.R. No. 71388, Sept.
23, 1986).
7. Unjustifiable inaction on the part of plaintiff to have the
case set for trial is ground for dismissal for fa ilure
to
p r o s e c u t e (Ventura vs. Bayan, L-12960, Jan. 31, 1962;
Insurance Company of North America vs. Republic, L-26794,
Nov. 15, 1967). The
"unreasonable length of time" in
failure to prosecute is addressed to the sound discretion of
the trial court (Olilang vs. Nocon, et al., L-31072, July
22, 1971).
These rule s apply to

RUL E

17

R E M E D I A L LA W C O M P E N D I U M

SE C . 3

p re -t r i a l s an d a p pe a l s t o th e former Cour t of Fi rs t
Instance (Racimo vs. Diho, L-27804, Feb. 27, 1976) and
th e case may be di sm i sse d for a pp e l l a nt ' s failure to
prosecute his appeal for an unre asonable length of time
(Republic vs. Guarin, et al, L-26367, Jan. 31, 1978).
In
a case appealed to the then Court of Fi rst Instance, the
appellant (whether plaintiff or defendant) sta nds in the
same position as the plaintiff in a case originally filed in
said court, hence the provisions of Sec. 3, Rule 17 also
apply to said appellant (Capitol Rural Bank of Quezon
City, Inc. vs. Meridian Assurance Corp., G.R. No. 54416,
Oct. 17, 1980).
8. . It is plai nti ffs failure
th e a b s e n c e o f hi
di sm i ssa l (Dayo, et al.
Marahay vs. Melicor, etc.,

to
s
vs.
et

appear at the trial, and no t


l a w ye r , whic h w a r r a n t s
Dayo, et al, 95 Phil. 703;
al, L-44980, Feb. 6, 1990).

9. A motion for the reconsideration of an order dismissing the


case for failure to prosecute need not be a cc om pa ni e d by
affidavits of me rit s (Gapoy vs. Adil, et al, L-46182,
Feb. 28, 1978).
1 0 . D i s m i s s a l u n d e r Secs. 1 , 2 an d 3 of thi s Rule, unless
otherwise ordered, is an adjudication on the merits except,
of course, dismissal for lack of jurisdiction which is alwa ys
without prejudice (Rivera vs. Luciano, L-20944, Aug. 14,
1965, and cases the rein cited).
11. . The principle tha t the dismissal of the complaint
carries with it the dismissal of the counterclaim applies to
instances where the court has no jurisdiction over the main
case
(Metals Engineering Resources Corp. vs. CA, et al,
G.R. No. 95631, Oct. 28, 1991). Othe rwise, a counter
claim may not be dismissed if defendant objects, unless it
can be inde pendentl y considered by the court. Where no
objection was made, the dismissal of the counterclaim was
valid. At any rate, if the dismissal of such counterc laim is
without prejudice, it may be refiled as a sepa rate action

RUL E

17

DI SMI SSA L O F ACT I ON S

SE C . 4

under Sec. 2, Rule 17 (Fletcher Challenge Petroleum Phil.,


Ltd., et al. vs. CA, et al., G.R. No. 123292, April 20, 1998).
12. Where counsel for the plaintiff had adduced e vi de nc e for
his c li e nt , his fa i l ure to a pp e a r at a subsequent hearing
cannot be considered as failure to prosecute but only a
waiver of the right to cross-examine the wit ne sse s for the
de fe nda nt and to object to the a dmi ssi bi l it y of evidence
for the l at t e r (Jalover vs. Ytoriaga,
L-35989,
Oct.
28,
1977).
13. The provisions of Sec. 3 of this Rule do not apply to
criminal cases (People vs. Bellosillo, L-18512, Dec. 27,
1963).
14. For a critique of the controversial antecedents of Secs. 2
and 3 of the Rule before their amendment in 1997 and the
current perceptions consequent to such amend ments, see
Tinga vs. Heirs of German Santiago, etc. (G.R. No. 170354,
June 30, 2006).
Sec. 4.
Dismissal
of counterclaim,
cross-claim,
or third-party complaint. Th e p r o v i s i o n s of thi s
Rul e sha l l a p pl y t o th e di s m i s s a l o f an y c o u n t e r
claim , c ro s s -c l a i m , o r t h i r d - p a r t y c o m pl a i nt . A
v o l u n t a r y d i s m i s s a l b y th e c l a i m a n t b y not ic e a s i n
sec t i o n 1 o f thi s Rul e , shal l b e ma d e befor e a
r e s p o n s i v e p l e a d i n g o r a m o t i o n for s u m m a r y
j u d g m e n t i s se r ve d or, i f t h e r e i s none , be fore th e
i n t r o d u c t i o n o f e vi d e nc e a t th e tri a l o r h e a ri n g .
(4a)

309

RULE 18
P RE-T RIAL
S e c t i o n 1. When conducted. Afte r th e las t
pl e a di n g ha s bee n ser ve d and file d, i t shall be th e
dut y of th e pl ai nti ff to pr omptl y mov e ex parte tha t
th e cas e be set for pre-trial. (5a, R20)
NO TES
1. . To obvi ate the conflicting views and decisions under
the former Rule, Sec. 1 now imposes upon the plain tiff the
duty to promptl y move ex parte tha t the case be set for pre trial, and this he must do upon the service and filing of
the last pleading required in the case by the Rules or, in
appropriat e circ umstances, by the court itself.
This
clarifies an d cha n ge s the proc e dure prescribe d in the
former Sec. 5 of Rule 20 which imposed tha t duty on the
clerk of court "upon the submission" of the last pleading.
The tra nsfe r of responsibilit y to the plaintiff himself, as
has been followed in other provisions of the revised Rules,
is based on the policy tha t whosoever is the proponent of
the pa rt ic ul a r stage of the proceeding should himself ini
tiate the corresponding steps to have judicial action take n
there on since he is presum ed to be the one inte reste d in
the speedy disposition thereof.
2. . Pre -trial under the former Rules was required only in
C ourt s of Fi r s t In st a nc e (now, th e Re gi ona l Tria l
Courts) and not in inferior courts, but the latter could
con duct pre-trial if they so desired. However, Par. 9
of the Int erim Rules required the inferior courts to
observe the same proce dure as tha t followed in the
Regional Trial Courts and Rule 5 now provides for tha t
uniform proce dure, albeit with qualifications.

RUL E

18

P RE - TRI A

SE C . 2

3. The pre-trial and trial on the merits of the case must be


held on separate dates (Heirs of Jose Fuentes, et al. vs.
Macandog, etc., et al, L-45445, June 16, 1978).
4. A pre -trial cannot validly be held until the last pleading has
been filed, which last pleading may be the plaintiffs reply
(Pioneer Insurance & Surety Corp., et al. vs. Hontanosas, et
al, L-35951, Aug. 31, 1977), except where the period to file
the last pleading has lapsed. The pre-trial may be properly
scheduled even if the plaintiff had not yet filed his answer
to the defendant's compul sory counterclaim since no
answer is required to be filed thereto (Sarmiento vs. Juan,
G.R. No. 56605, Jan. 28, 1983; see Koh vs. LAC, G.R.
No. 71388, Sept. 23, 1986).
Sec. 2. Nature and purpose. Th e pr e-tr i al
ma n dat or y. The court shall consi de r:

is

(a)The possi bi l i ty of an amic able s e t tl e me n t or of a


s u b mi s s i o n to alternative mode s of di spute reso
l uti on ;
(b) The si mpl i c ati on of the issues;
(c) The n e c e ss i t y or de sir abi li ty of a me n d me n t s to the
pl e adi ngs;
(d) The pos si bi l i ty of obt ai ni n g sti pulati ons or
a d mi ss i on s of facts and of d oc u me n t s to avoid un
ne c e s sa r y proof;
(e) The l i mi tati on of the numbe r of w itne sse s;
( 0 The advisabili ty of a prel i mi nary refe renc e
of i ssue s to a c ommi ssi one r ;
(g) The propri ety of ren de r i ng ju dg me nt on the
pl e adi ngs, or summar y judg me nt, or of di s mi ssi n g
the ac ti on shoul d a valid ground therefor be found to
e xist;
(h) The advisabili ty or nec e ssi ty of s u s pe n di n g the
pr oc e e di ng s; and
311

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18

R E M E D I A L LA W C O M P E N D I U M

SE C . 3

(i)Suc h othe r ma tte r s as ma y aid in th e promp t di s pos i t i o


n of th e ac ti on, (la , R20 )
NOTES
1. The purposes of a pre-trial under the old Rule have been
reproduced with two subst ant ial a me ndme nt s, viz.:
(a) the court shall consider submission to alternati ve modes
of dispute resolution including conciliation and mediation,
and not only arbitra tion; and (b) it shall also consider the
advi sa bil it y of j u d gm e n t on the pl ea di ngs, s u m m a r y
judgme nt or dismissal of the action on the bases of the
proceedings at the pre-trial conference.
2. . Wit h re ga r d to su bm i s si o n to a r b i t r a t i o n ,
see
R.A. 876 and Art s. 2028 to 2041 of the Civil Code on
com promises and a r bi t ra t i on s . For rece nt le gislation
provi di ng for a broa de r scope of a l t e r na t i v e modes of
dispute resolution, see R.A. 9285 which institutionalized
the use of an alte rnati ve dispute resolution system and
established the Office for Alternative Dispute Resolution
(Appendix
DD).
3. The findings of fact of a trial court consequent to a pre trial conference are findings which are based on evidence
and can accordingl y support a decision
or an order
(Libudan vs. Gil, L-21163, May 17, 1972).
Sec . 3. Notice of pre-trial. Th e n o t i c e of pretri al shal l b e ser ve d o n c ou n se l , o r o n th e par ty wh
o ha s n o c ou n se l . Th e c o u n s e l se r ve d w it h suc h n oti c
e i s c h a r g e d w i t h th e dut y o f n o t i fy i n g th e party
r e p r e s e n t e d by hi m. (n)
NOT E
1 . Under the former procedure, the Supreme Court
held tha t a notice of pre -trial must be served on the part y
affected separately from his counsel (Heirs of Jose Fuentes,

R UL E

18

P RE - TRI A

SE C . 4

et al. vs. Macandog, etc., et al. supra), and the same may
be served directly to him or through his counsel (Lim,
et al. vs. Animas, etc., et al., L-39094, April 18, 1975),
otherwise the proceedings will be null and void (Sagarino
vs. Pelayo, L-27927, June 20, 1977; Patalinjug vs. Peralta,
et al., L-43324, May 5, 1979). It was the duty of counsel
upon whom such notice is served to see to it that his client
receives such notice and attends the pre-trial, otherwise
he will be liable for grave admi nistrati ve disciplinary
action (Taroma, et al. vs. Sayo, et al., L-37296, Oct. 30,
1975).
The proc edure has been simplified in this revised
section in the sense that the notice of pre-trial shall be
served on counsel, and service shall be made on the party
only if he has no counsel. However, the duty of counsel
served with such notice to duly notify his client thereof
remains substantiall y the same.
Sec. 4. Appearance of parties. It shall be the
duty of th e par ti e s and their counse l to appear at
the pre-trial. The n on- a p pe a r a nc e of a party may
be e xc u se d only i f a valid caus e is show n the refor
or if a r e pre s e n ta ti v e shall appear in his behalf fully
a u t h o r i z e d i n w r i t i n g t o e nte r into a n a mi c a bl e
s e t t l e m e n t , t o s u b mi t t o a l t e r n a t i v e m o d e s o f
di s pu t e re s ol u ti on , and to e nte r into sti pul ati ons
or a d mi s s i o n s of facts and of doc u me nts, (n)
NOTES
1.

The specificity introduced by this new section


underscores the necessity for the personal appearance of
the pa rti e s at the pre -t rial conference in view of the
purposes thereof. This provision is based on the doctrines
of the Supreme Court which held that the purpose of the
revised Rules is to compel the parties to appear personally
before the court to reach, if possible, a compromise. Where

313

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18

REMEDIA L

LA W C O M P E N D I U M

SE C . 5

the counsel for the plaintiff asserted that he had been given
authorit y by his client to compromise but the court was
not satisfied tha t said a ut ho ri t y existed, the court i s
authorized to dismiss the case for non-appea rance of the
plaintiff (Home Insurance Co. vs. U.S. Lines Co., et al., L25593, Nov. 15, 1967). A spec ial a u t h o ri t y for an a t t o r n e
y t o c o m p rom i s e i s r e q u i re d u nde r Sec. 23 , Rule 138.
Under Art. 1878(c) of the Civil Code, a special power of
attorne y is required (see Servicewide Specialists, Inc. vs.
Sheriff of Manila, et al.,
G.R.
No.
74586, Oct. 17,
1986). However, it has also been held tha t the authorit y need
not be in writing and may be established by com pete nt
evidence or subseque ntl y
ratified
by
the
pa rt y
c o n c e r ne d (Lim Pin vs. Tan, et al., L-47740, July 20,
1982). If th e pa rt y is a c or po ra t i on , suc h authorit y must
be made with an appropriate resolution of its board of
directors (Republic vs. Plan, et al., G.R. No. 56962, Aug.
21, 1982).
2. .

I t must further be noted tha t the special authorit y


should confer on the part y' s re pre se nta t i ve not only the
power to ente r into a compromise, as i t was under the
former provision, but also to submit to alte rnati ve modes
of dispute set tleme nt, and to ente r into sti pulati ons or
a d m i s s i o n s of facts an d d o c u m e n t s . Also, th e mer e
pre se nta t i on of such writ ten authorit y is not sufficient,
but mus t be com pleme nted by a showing of valid cause for
the non-appe a ra nc e of the pa rt y himself.

3. . Where nobody appeare d at the pre-trial except the counsel


for the plaintiff but said counsel had no special authorit y
to re pre se nt the plaintiff therein, the plaintiff may properl y
be declared non-suited. The plaintiff may be so declared
non-suited and the case dismissed without motion by the
defendant (Sec. 3, Rule 17).
Sec . 5. Effect of failure to appear. Th e fa i l u r e of th
e pl a i nt i f f t o a p p e a r w h e n s o r e q u i r e d p u r s u a n t

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PRE-TRI A

SE C . 5

to the nex t pr e c e di n g sec ti on shall be cause for dis


missal of the ac ti on. The di smi ssal shall be with
prejudice , unl e s s ot he r w i s e or de red by the court.
A si mil ar failure on the part of the de fe n dant shall
b e c a u s e t o a l l o w th e p l a i n t i f f t o p r e s e n t hi s
e vi de nc e ex parte and the court to render judg me n t
on the basis thereof. (2a, R20)
NOTES
1. This is a substantial reproduction of Sec. 2 of the former
Rule 20 with the change that , inst ead of the defendant
being declared "as in default" by reason of his no n a pp e a ra nc e , this section now spells out tha t the procedure
will be to allow the ex parte presentati on of plaintiffs
evidence and the rendition of judgment on the basis thereof.
While actually the procedure remains the same, the
purpose is one of se m a nt i ca l propri et y or terminological
accuracy as there were criticisms on the use of the word
"default" in the former provision since that term is
identified with the failure to file a requi red answer, not
non-appearance in court.
2. The trial court has discretion to declare a party n o n -s u i t e d
(American Insurance
Co.
vs.
Republic, L 25478, Oct.
23, 1967) and, unless otherwise provided, such dismissal
has the effect of an adjudication on the m e ri t s (Geralde,
et al. vs. Sabido, et al., L-35450, Aug. 19, 1982). Such
exercise of discretion will not be interfered with by the
appellate courts, absent a showing of grave abuse thereof.
Where, as in one case, both counsel and plaintiff did not
appear at the pre-trial, an order of non-suit was proper
(Arcuino, et al. vs. Aparis, et al., L-23424, Jan. 31, 1968).
3. Where the defendant is declared in default for his failure to
appear at the pre-trial, his remedy is to file a motion for
reconsideration without need for affidavits of merits
regarding the fraud, accident, mistake or excusable

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SE C . 6

negligence (Lucero vs. Dacayo, L-23718, May 13,


1968),
obviously because the defenses of the defendant are set
out in his answer. If denied with grave abuse of discretion,
c e rt i o r a r i i s th e re m e d y as such orde r of de fa ul t i s
interlocutory. The remedy of the plaintiff who is non
suited, on the other hand, is to appeal from the order of
dismissal, the same being a final order. If has also been
held t h a t sai d mot i o n of th e pl a i nt i f f nee d not be
a c c o m p a ni e d by a ffi da vi t s of m e r i t s si nce th e suf
ficiency of the cause of action can be dete rmi ned from
the allegations in the complaint (Gapoy vs. Adil, et al., L46182, Feb. 28, 1978).
4. . Where the defendant was present at the pre-trial, the
court has no aut horit y to t he re a fte r call a second pretrial and declare defendant in default for his absence the rei
n
(Pioneer Insurance
&
Surety
Corp.,
et al.
vs.
Hontanosas, et al., supra; cf. Jaranilla, et al. vs. Adil,
et al., L-44884, Feb. 28, 1979). For tha t matt er, where a
pre -trial has already been held, the fact tha t an ame nde d
complaint was later filed, with leave of court, does not
necessitate another pre-trial (Insurance Company of North
America vs. Republic, et al., L-26794, Nov. 15, 1967).
5. . The dismi ssal of the case by the court due to no n a p pe a ra n c e of the plaintiff and his counsel at the pretrial, but without proper notice of said pre -trial served on
them, is violative of due process and the dismissal should be
set asi de (Loquias vs. Rodriguez, et al., L-38388, July 31,
1975). Where petitioner' s counsel was not served with a
se pa rat e notice
of pre -t rial ,
a lt hou gh his client
acknowledged receipt of a copy thereof in its behalf and of
said counsel, said service is insufficient and the order of
default and the ex parte proceedings before the commis
sioner are null and void (People's Realty Brokerage Corp. vs.
Lustre, et al., L-41495, Oct. 20, 1978). This doctrine would
still hold tru e as i t does not conflict wit h the ame nde d
Sec. 3 of this Rule.

RULE 18

P RE - TRI A

SECS. 6, 7

Sec. 6. Pre-trial brief. The parties shall file with


the court and serve on the adver se party, in such
man ne r as shall i nsure thei r recei pt the reof at least
three (3) days before the date of the pre-trial, their
r e s p e c t i v e pr e- tr i a l br i e f s w hi c h shal l c o n t a i n ,
a mon g ot her s:
(a)A s t a t e me n t of thei r w i l l i n g n e s s to e nte r into a mi c abl
e s e t t l e me n t or al ter nati ve mode s of di s pu t e
r e s o l u t i o n , i n di c a t i n g th e de si re d te r m s thereof;
(b) A su mma r y of ad mi tte d
sti pul ati on of facts;

facts

and

pr opose d

(c) The i ssue s to be tried or resol ve d;


(d) The d oc u me n t s or e xhi bi ts to be pre se nte d , stati ng
th e pur pos e thereof;
(e)A ma n i f e s ta ti o n of their havi n g avai le d or thei r
i n t e n t i o n t o avai l t h e m s e l v e s o f d i s c ov e r y
pr oc e du r e s or referral to c ommi s s i one r s ; and
(f) The nu mbe r and na me s of the w i t ne s s e s , and the
su bs ta nc e of their res pe c ti ve te sti moni e s.
Failure to file the pre-trial brief shall have the
same effect as failure to appe ar at the pre-trial, (n)
NOTE
1. This section makes it the mandatory duty of the
parties to seasonably file their pre-trial briefs under the
conditions and with the sanctions provided therein. The
case of Dimayacyac, et al. vs. CA, et al. (G.R. No. 50907,
Sept. 27, 1979) which excused the non-filing of the pre
trial brief on the ground that the former Rule did not then
require the same is accordingly abrogated.
Sec. 7. Record of pre-trial. The pr oc e e di ngs in
the pre-trial shall be rec or de d. Upon the te r mi na-

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SE C . 7

ti on thereof, th e cour t shall i ssu e a n or de r w hi c h


shall rec i t e i n de tai l th e ma tt e r s ta ke n u p i n th e
c o n f e r e n c e , th e ac ti o n ta ke n t he re on , th e a me n d
me n t s al l ow e d t o th e pl e a di n g s , an d th e a g r e e me n t
s or a d mi s s i o n s mad e by th e par ti e s as to an y of the
ma tt e r s c on si de r e d . Shoul d the ac ti o n pr oc e e d t o
trial, th e or de r shall e xpl i c i tl y de fi n e an d li mi t the
i ssue s to be trie d. The c on te nt s of th e or de r shall
c ontr o l th e s u b s e q u e n t c our s e o f th e ac ti on , unl e s s
modi fie d before trial to pr e ve n t ma ni fe s t i njusti c e .
(5a, R20)
NOTES
1. . Thi s p ro vi s i o n on th e p r o c e d u r e in p re -t r i a l
proceedings in civil cases is different from tha t obtaining in
criminal cases wherein, as provided in Sec. 2 of Rule
118, an a gre em e nt or admission of a pa rt y in the pre-trial
conference shall be admissible a ga inst him only if reduced
to writi ng and signed by him and his counsel. However, the
binding effect of the pre-trial order issued under this section
is subst a nt i al l y the same as a pre-trial order in criminal
cases, as provided in Sec. 4 of said Rule.
2. The a m e n dm e n t of a pre-trial order is addressed to th e
sound di sc re ti on of th e court (Gotico vs. Leyte Chinese
Chamber of Commerce, L-39379, April 30, 1985).
3. Where the am ount of back re nt al s to be paid by the
defendant is stated in the pre-trial order in the na ture of a
compromise a gre em e nt thereon, said pre-trial order in
tha t sense has the force of res judicata on tha t issue (M
& M Management Aids, Inc. vs. CA, et al., G.R. No.
53942, June 29, 1984).
4. A pre -tria l order is not mean t to be a detailed catalogue of
each and every issue tha t is to be or may be

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18

PRE -T RI A L

SE C . 7

ta ke n up during the trial. Issues tha t are impliedly


included therei n by necessary implication are as much
inte gral pa rt s of the pre -trial order as those tha t are
expressly stipulated (Velasco, et al. vs. Apostol, et al., L44588, May 9, 1989).
5. . In A.M. No. 03-1-09-SC, the Supre m e Court issued a
Rule on Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct of Pre-trial and Use of
Deposition-Discovery Mea sure s, effective August 16,
2004.

319

RULE 19
INTERVENTION
Se c ti o n 1. Who may intervene. A pe r so n wh o
ha s a legal i nte res t in the matte r in liti gati on, or in
the suc c e s s of e i the r of the par ti e s, or an i nte res t
a gai n s t both, or i s so si tuate d as to be a dve r se l y
affec te d by a di st r i bu ti o n or othe r d i s p os i t i o n of
pr ope r ty in th e c ust od y of th e c our t or of an officer
t h e r e o f may , wit h l e av e o f c our t , b e a l l ow e d t o
i nte r ve n e in th e ac ti on. The c our t shall c on si de r
w he t he r or not the i nte r ve nt i o n will un dul y del ay
o r p r e j u d i c e th e a d j u d i c a t i o n o f th e r i g h t s o f
the or i gi nal par ti e s, and w h e t h e r or not th e inter
ve ne r' s ri ghts ma y be fully pr ot e c te d in a se par at e
pr oc e e di ng . (2[2], [b]a, R12)
NOTES
1. This right to intervene is not an absolute right. The
procedure to secure the right to intervene is fixed by the
sta t ute or rule, and intervention can be secured only in
accordance with the terms of the applicable provision.
U n d e r ou r rul e o n i n t e r v e n t i o n , th e a l l o w a nc e o r
disallowance of a motion to intervene is addressed to the
sound discretion of the court (Big Country Ranch Corp.
vs. CA, et al., G.R. No. 102927, Oct. 12, 1993).
2. Int ervent ion is not intended to change the nat ure and
cha racte r of the action itself (Garcia, etc., et al. vs. David, et
al., 67 Phil. 279). In general, an independent controversy
cannot be injected into a suit by inte rve nti on (67A C.J.S.
805), hence such intervention will not be allowed where it
would enlarge the issues in the action and expa n d th e
scope of th e re me di e s (Big Country Ranch Corp. vs. CA,
et al., supra).

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19

INTERVENTIO

SE C . 1

3. Intervention is distinguished from interpleader


(Rule 62) as follows:
a. Intervention is an ancillary action, while inter pleader is
an original action;
b . I n t e r v e n t i o n i s pr ope r in an y of th e four sit uati ons
mentioned in this Rule, while inte rpl eade r pre suppo se s
tha t the plaintiff has no int e re st in the subject-matter of
the action or has an interest therein which, in whole or in
part, is not disputed by the other parties to the action; and
c.

In a complaint in intervention, the defendants are


already original parties to the pending suit, while in
interpleader the defendants are being sued precisely to
implead them.

4. . An i n t e r e s t i n g que st i o n i s th e effect upo n a


c o m p l a i n t - i n -i n t e r ve n t i o n by the di sm issa l of the
principal action wherein such intervention was sought. The
confusion he rei n seems to have arisen from the
decisions of the Suprem e Court in Barangay Matictic, etc.
vs. Elbinias, etc., et al. (L-48769, Feb. 27, 1987) and
Metropolitan Bank and Trust Co.
vs. Presiding Judge,
etc., et al. (G.R. No. 89909, Sept. 21 , 1990). While in
Matictic it was held that the dismissal of the main case
barred further action on the intervention, in Metropoli
tan the c om pl a i nt -i n -i nt e r ve nt i on survived and was
allowed to proceed despite the dismissal of the main
action. The two cases actually rest on different facts and the
see mingl y opposing decisions the rei n are easily
reconcilable.
In Matictic, the main action, an expropriation case,
was filed by the Munici palit y of Norza gara y a gai nst
private respondents who were charging and collecting toll
fees on feeder roads in Barangay Matictic. Later, the
municipal ma yor evinced his desire to withdraw the
expropriation case, whereupon petitioner baranga y filed
a motion for intervention, contending that the result of
321

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19

RE ME DI A L

LAW

COMPENDIU M

SE C .

the expropriation case would affect its social and economic


development. Without taking action on the motion for
intervention, r e s p o n d e n t tri a l cour t di s m i ss e d th e
expropriati on case, without prejudice, on the singular
reason tha t the same was filed wit hout the requisite
prior Presidential approval. On certiorari, the Supreme
Court ruled that the baranga y, which is a part of but a
different political ent it y, ca nnot que st i on the orde r
dismissing the expropriation case. Since said order had
achieved finality, th e d i s m i s s a l of th e moti on for
intervention was unavoidable as the main action, having
ceased to exist, there was no pending proceeding wherein
the intervention may be based. Besides, its interests may
be protected in a separate case which it may prevail upon
the municipalit y to refile or, if the intervenor has the
requisite authorit y, it can file the action for expropriation
itself.
In Metropolitan, petitioner brought a replevin suit
for rec ove ry of a i rc o ndi t i o ni n g uni t s , i ns t a l l e d in a
building acquired by pri va te re sponde nts, which were
obtained from Raycor Air Control Syst em, Inc. on an
arra n gem e nt financed by loans obtained from petitioner.
Said airconditioning corporation was allowed by the trial
court to intervene and, after its complaint-in-intervention
was admitted and the answers thereto were filed, the case
was set for trial. Prior thereto, petitioner bank and the
building owners ente red into a compromise a greem ent
and, on their joint motion, the complaint was dismissed
with prejudice. However, on motion of intervenor, said
order was reconsidered and set aside. Thereafter, the trial
court allowed the filing of an a me nde d com plai nt -inintervention and petitioner went to the Court of Appeals
on certiorari to challenge the corresponding orders of the
lower court which, howe ve r, wer e s u s t a i n e d by th e
Court of Appeals.
The Supreme Court, on appeal, rejected petitioner' s
c om pl a i n t a ga i n s t allowi ng th e i n t e r ve n t i o n sui t t o

RUL E

19

INTERVENTIO

SEC . 1

proceed despite the dismissal of the main action. In truth,


there was no final dismissal of the main case and its
r e i n s t a t e m e n t was prope r. The joint motion of the
plaintiff and defendants therein to dismiss the case only
affected their respective claims inter se but cannot affect
the ri ghts of the intervenor. When an intervenor has
become a party to a suit, the trial court cannot dismiss the
intervention suit on the basis of an agreement between
the original parties to the action unless the intervenor is
a part y in such agreement.
Ha ving been pe rmi t te d to become a part y to the
action, the intervenor is entitled to have the issues raised
between him and the original parties tried and determined.
The plaintiff has no absolute right to put the intervenor
out of court by the dismissal of the action, nor do the
original parties to the suit have the power to waive or
otherwise annul the substantial rights of said intervenor.
When an intervening petition has been filed, a plaintiff
may not dismiss the action in any respect to the prejudice
of the intervenor.
Since the complaint-in-intervention was filed before
plaintiff's action had been expressly
dismissed,
the
intervener' s complaint was not subject to dismissal on the
ground that no action was pending, because dismissal of
plaintiffs action did not affect the rights of the intervenor
or effect the dismissal of intervener's complaint. Moreover,
to re qui re pri va t e re s po nd e n t to refile anot he r case
will re sul t in u n n e c e s s a r y dela y and expe nse s and
entail multiplicity of suits. This would, defeat the very
pu rp os e of i n t e r v e n t i o n whic h i s to de t e rm i n e all
conflicting claims on the matter in litigation and settle
in one acti on an d by a single j ud gm e n t the whole
controversy among the persons involved.
5. While, as a rule, intervention is optional (Cruz- cosa, et al.
vs. Concepcion, et al., 101 Phil. 146) and whether the
failure to intervene may be deemed as
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19

R E M E D I A L LAW

COMPENDIU M

SE C . 1

waiver or estoppel depends on each case (Liguez vs. CA,


et al., 102 Phil. 577), it is belie ved t ha t whe r e th e
i n t e r v e n e r ' s ri ght s ar e i n t e r w o ve n i n th e p e n d i n g
case and he had due notice of the proceedings, he will
therea fte r be estopped from questi oni ng the decision
rendered therein through another action.
6. An improper denial of a motion for intervention is
correctible by appeal (Ortiz vs. Trent, 13 Phil. 130; Hospicio
de San Jose, et al. vs. Piccio, et al., 99 Phil. 1039 fUnrep.J), bu t if
t he r e is grave abus e of di sc ret i on, m a nda m us will lie,
where there is no other plain, speedy an d a d e q u a t e
re me d y (Dizon vs.
Romero,
L-26252, Dec. 24, 1968;
Macias, et al. vs. Cruz, et al., L-28947, Jan. 17, 1973,
jointl y dec idi ng t he re i n L 29235 and L-30935). On the
other hand, an improper granting of a motion for
intervention may be controlled by certiorari and
prohibition. When the rights of the pa rt y seeking to
intervene will not be prejudiced by the judgme nt in the
mai n case an d can be fully p rot e c t e d in a s e pa r a t e
proceeding, the court may deny the intervention sought
(Pflieder vs. De Britanica, L-19077, Oct. 20, 1964).
7. For an enumeration of cases wherein intervention was held
to be proper, see Batama Farmer's Cooperative Marketing
Association, et al. vs. Rosal, et al. (L-30526, Nov. 29,
1971).
8. . To wa rra n t intervention, it must be shown that the
movant has legal interest in the m at t e r in litigation and
consideration must be given as to whe t he r or not the
adjudication of the rights of the original parties may be
delayed or prejudiced, while those of the intervenor may be
protected in a separate proceeding. Both re quirem ent s
must concur.
The interest which entitles a person to intervene in a
suit must be on the matte r in litigation and of such direct
and immediate character that the intervenor will either

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19

INTERVENTIO

SE C . 2

gain or lose by the direct legal operation and effect of the


judgment (6318 v. Nocom, G.R. No. 175989, Feb. 4, 2008).
The words "an interest in the subject" mean a direct inter
est in the cause of action as pleaded and which would put
the intervenor in a legal position to litigate a fact alleged
in the complaint, without the e st a bl i shm e nt of which
plaintiff could not recover (Magsay say-Labrador, et al. vs.
CA, et al., G.R. No. 58168, Dec. 19, 1989).
Sec. 2. Time to intervene. Th e m o t i o n to
i nte r ve ne may be filed at any ti me before ren di ti on
of j u d g m e n t by th e tr i a l c our t . A c op y of th e
p l e a di n g - i n - i n t e r ve n t i o n shall be attac he d to the
moti on and ser ve d on the ori gi nal par ti es, (n)
NOTES
1. The former rule as to when intervention may
be allowed was expressed in Sec. 2, Rule 12 as "before
or duri ng a trial," and this ambi guit y also gave rise
to indecisive doctrines. Thus, inceptively it was held
that a motion for leave to intervene may be filed "before
or during a trial" even on the day when the case is
being submitted for decision (Bool, et al. vs. Mendoza,
et al, 92 Phil. 892), as long as it will not unduly delay
the disposition of the case. The term "trial" was used in its
restricted sense, i.e., the period for the introduction of
evidenc e by both pa r t i e s . Hence, i f th e motion for
intervention was filed after the case had already been
submi tted for decision, the denial thereof was proper
(Vigan Electric Light Co., Inc. vs. Arciaga, L-29207
and L-29222, July 31, 1974). However, it was later
held tha t i n t e r ve n t i o n may be allowed at any time
before the rendition of final judgment (Lichauco vs. CA,
et al, L-23842, Mar. 13. 1975). Further, in the excep
tional case of Director of Lands vs. CA, et al. (L-45163,
Sept. 25, 1979), the Supreme Court permitted interven
tion in a case pending before it on appeal in order to avoid
325

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19

R E M E D I A L LA W C O M P E N D I U M

SECS . 3 4

injustice and in consideration of the number of parties


who may be affected by the dispute involving overlap
ping of numerous land titles.
2 . The u n c e r t a i n t y i n t he s e r u l i n g s ha s bee n
eliminated by the present Sec. 2 of this amended Rule
which permits the filing of the motion to intervene at any
time before the rendition of the judgment in the case, in
line with the doctrine in Lichauco above cited. The
justification advanced for this is that before judgme nt is
rendered, the court, for good cause shown, may still allow
the introduction of additional evidence and tha t is still
within a liberal i n t e r pre t a t i on of the period for trial.
Also, since no j ud gm e n t ha s yet been r e n d e re d , the
ma tt e r subject of the inte rve nti on may still be readily
resolved and integrated in the judgm ent disposing of all
claims in the case, and would not re qui re an overall
rea ssessment of said claims as would be the case if the
judgme nt had already been rendered (see also Looyuko,
et al. vs. CA, et al, G.R. No. 102696, July 12, 2001).
Sec. 3. Pleadings-in-intervention. Th e i nte r ve
no r shal l file a c o m p l a i n t - i n - i n t e r v e n t i o n i f he
as se r t s a clai m agai ns t ei the r or all of th e or i gi nal
par ti e s , or an a n s w e r -i n - i n t e r v e n t i o n i f he uni te s
wit h the d e f e n di n g party in re si st i n g a cl ai m agai n s t
th e latter. (2 [c]a, R12 )
Sec. 4.
Answer to
complaint-in-intervention.

Th e a n s w e r t o th e c o m p l a i n t - i n - i n t e r v e n t i o n
shall be filed w i thi n fifteen (15) day s from notice
of th e or de r a d mi t t i n g th e same , unl e s s a di fferent
peri od i s fixed by th e court. (2 [d]a, R12 )
NOTES
1. Where the intervenor unites with the defendant,
i nte r ve ne s by filing an a nswe r-i n-int e rve nt i on.
If

he

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19

INTERVENTIO

SE C S . 3- 4

he unites with the plaintiff, he may file a complaint-inintervention a ga inst the defendant. If he does not ally
hi mself wit h e i t he r pa rt y he may file a com plai nt - inintervention against both.
2. Sec. 4 of this Rule, as amended, now requires an answer to the
complaint-in-intervention within 15 days from notice of the
order admit ting the same, unless a different period is fixed
by the court. This changes the procedure under the former
Rule wherein it was optional to file an answer to the
complaint-in-intervention,
and also sets aside
the
doctrine in Luna vs. Abaya, et al. (86 Phil. 472) which
held that there would be no default since under the then
existing rule the filing of the answer was permissive. This
change of procedure does not, of course, affect th e rule
enuncia ted in Froilan vs. Pan Oriental Shipping Co. (95
Phil. 905) that if an answer is validl y filed to th e
c om pl a i nt -i n -i nt e r ve nt i on , the answering part y may
assert a counterclaim therein against the intervenor.

327

RULE 20
CALENDAR OF CASES
S e c t i o n 1. Calendar of cases. Th e c le r k of
court, un de r th e di rect s u pe r v i s i o n o f th e ju dge ,
shall kee p a cal e nda r of case s for pre-trial, thos e
w h os e tr i al s w er e a dj ou r n e d o r p o s t p o n e d , an d
thos e wit h moti on s to set for he ar i ng. P r efe re nc e
shall be gi ve n to habeas corpus case s, el ec ti o n cases,
spe ci al civil ac ti ons, and thos e so re qui re d by law.
(la , R22 )
NOTE
1. To ensure a more efficient monitoring of cases for
both supervision and reportorial purposes, the clerk of
court is now re qui re d to keep at least four se pa ra t e
calendars reflecting the cases for pre-trial, for trial, those
whose trials were adjourned and postponed, and those
requested to be set for hearing. The so-called preferen
tial cases must also be taken into account. This section
furt he r m a ke s i t th e dut y of th e p re s i d i n g judge to
exercise direct supervision over those ma tt e rs.
Sec . 2. Assignment of cases. Th e a s s i g n me n t
of case s to th e diffe rent br a nc he s of a c our t shall
b e don e e x c l u s i v e l y b y raffle . Th e a s s i g n m e n t
shal l b e don e i n ope n s e s s i o n o f w hi c h a de qu a t e
n oti c e shal l b e gi ve n s o a s t o affor d i n t e r e s t e d
par ti e s op por t u ni t y to be pr ese nt . (7a, R22 )
NOTE
1. The assi gnment of cases is required to be done
exclusively by raffle, and this sets aside the contra ry
rul i n g
in
Commissioner of Immigration
vs.
Reyes

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20

CALENDA R

O F C A SE S

SE C . 2

(L-23826, Dec. 28 , 1964). Also, this provision of the


Rule reiterates the requirement in some circulars of the
Supreme Court that the raffle of cases shall be done in
open session with prior adequate notice to the interested
parties.

329

RULE 21
SU BP O E N
A
Se c ti o n 1. Subpoena and subpoena duces tecum.
S u b poe n a i s a pr oc e s s di rec te d t o a per so n
r e q u i r i n g hi m t o a t t e n d an d t o t e s t i f y a t th e
h e ar i n g or the trial of an ac ti on, or at any i nve sti
gati on c on d u c t e d by c o mpe t e n t author i ty, or for the
ta ki n g of his de pos i t i on . I t ma y also requi re hi m
t o b r i n g w i t h hi m an y b o o k s , d o c u m e n t s , o r
other thi ng s un de r his c ontrol, in w hi c h cas e i t i s
called a s u b poe n a duces tecum,
(la , R23)
NOTE
1. The subpoena referred to in the first sentence
of this secti on is di st i nc t i ve l y called a subpoe n a ad
testificandum. This is the
technical
and descripti ve
term for the ordinary subpoena (Catty vs. Brobelbank,
124 N.J. Law 360, 12 A. 2d 128).
Sec. 2. By whom issued. The s u b poe n a ma y
be i ssue d by:
a ) Th e c o u r t b e f o r e w h o m th e w i t n e s s i s
requi re d to atten d ;
b) The c our t of the place w he r e th e de p o s i t i o n i s to
be take n;
c) The officer or body a ut h or i z e d by law to do so in
c on n e c t i o n wit h i nve st i g at i on s c o n du c t e d by said
officer or body; or
d ) An y J u s t i c e o f th e S u p r e m e Cour t o r o f
the Court of A ppe al s in an y cas e or i nve st i g at i o n
pe n d i n g w ithi n th e P hi l i p pi n e s .

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21

SUBPOEN

SE C . 3

When appl ic ati on for a su bpoe n a to a pr i sone r


i s made, the judge or officer shall e xa mi n e and study
carefully suc h appl icati on to de te r mi ne w he the r the
same is mad e for a vali d pur pose .
N o p r i s o n e r s e n t e n c e d t o d e a t h , reclusion
perpetua or life i mpr i s on me n t and wh o is c onfi ne d
in an y pe na l i ns ti tu ti o n shall be br ou ght ou tsi d e
th e sai d p e n a l i n s t i t u t i o n for a p p e a r a n c e o r
a t t e n da n c e in any court unl e s s author iz e d by the
Su pre m e Court. (2a, R23)
NOTES
1..

Th e e n u m e r a t i o n of th e pe r s o n s who ar e
authorized to issue subpoenas has been expanded by the
inclusion of the officer or body aut horized by law in
connection with investigations conducted by them. Also, a
municipal trial court may now issue a subpoena for the
atte ndance before it of a prisoner even if he is not
confined in a municipal jail, unless such prisoner has
been se nt e nc e d to
de a t h , reclusion perpetua or
life i m p r i s o n m e n t an d his de si re d a p p e a r a n c e ha s
not been authorized by the Supreme Court.

2..

The las t two p a r a g r a p h s of thi s secti on are


precautionary mea sure s evolved from judicial experience.
These were take n from Adm inistrat i ve Circular No. 6 of
the Supreme Court, dated December 5, 1977.
Sec. 3. Form and contents. A s u b poe n a shall
stat e th e nam e o f th e c our t an d th e title o f th e
ac ti o n or i n v e s t i g a t i on , shal l be di r ec te d to th e
pe r s o n w hos e a t te n d a n c e i s requi re d, and in th e
cas e of a s u b p o e n a duces tecum, i t sh al l al s o
c o n t a i n a r e a s o n a b l e d e s c r i p t i o n of th e boo ks ,
d oc u me n t s o r thi ng s de ma n de d w hic h mus t appear
to the court prima facie relevant. (3a, R23)

331

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R E M E D I A L LAW C O M P E N D I U M

SE C S . 4 , 5

Sec. 4. Quashing a subpoena. Th e c our t ma y


q u a s h a s u b p o e n a duces tecum u p o n m o t i o n
pr ompt ly mad e and, in an y e ve nt , at or before the
ti m e s pe c i f i e d t h e r e i n i f i t i s u n r e a s o n a b l e an d
o p p r e s s i v e , o r th e r e l e v a n c y o f th e b o o k s ,
d o c u m e n t s o r t h i n g s doe s no t a p pe a r , o r i f th e
p e r s o n i n w h o s e be h al f th e s u b p o e n a i s i s s u e d
f ai l s t o a d v a n c e th e r e a s o n a b l e c os t o f th e
pr od uc ti o n thereof.
The court ma y quas h a su bp oe n a ad testifican
dum on the groun d tha t the w i t ne s s i s not boun d
t h e r e by . I n e i t h e r c a s e , th e s u b p o e n a ma y b e
qu a s he d o n the groun d tha t th e w i t ne s s fees and
k i l o m e t r a g e a l l ow e d b y t h e s e R u l e s w e r e no t
te n de re d w he n the s u b poe n a wa s ser ve d. (4a, R23)
NOTE
1. A subpoena duces tecum may be qua shed upon
proof that (a) it is unre asonable and oppressive, (b) the
articles sought to be produced do not appear prima facie
to be rele vant to the issues, and (c) the person asking
for th e su bp oe n a does not a dva nc e th e cost for th e
production of the articles desired.
The second pa ra gra ph of Sec. 4 was added to make it
explicit tha t a subpoena ad testificandum may also be
quashed if the witness is not bound thereby (see Sec. 10).
Also, it was considered necessary to reite rate herein, by
m a ki n g n o n -c o m pl i a nc e a groun d for q u a s h a l of a
s u b p o e n a duces tecum, t h a t th e w i t n e s s fees an d
ki l om e t ra g e shoul d be t e nde re d upon service of the
s u b p o e n a (see Sec. 6), whic h r e q u i r e m e n t is often
deliberately or unknowingl y overlooked.
Se c . 6. Subpoena for depositions. P r oo f of
ser vi ce of a n oti c e to take a de p osi ti on , as pr ovi de d
in se c ti on s 15 and 25 of Rule 23 , shal l c o n s t i t u t e

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21

SUBPOEN

SE C S . 6- 8

s u f f i c i e n t a u t h o r i z a t i o n for th e i s s u a n c e o f
s u b p o e n a s for th e p e r s o n s na me d i n said notic e
by the cler k of the court of the place in w hic h the
d e p o s i t i o n i s t o b e t a ke n . Th e cle r k shal l not,
how e ve r , i ssu e a s u b poe n a duces tecum to any suc h
per son w i th ou t an or der of the court. (5a, R23)
Sec . 6 . Service. S e r v i c e of a s u b p o e n a
shall be mad e in th e same man ne r as pe r s on al or
s u b s t i t u t e d s e r v i c e o f s u m m o n s . Th e or i g i n a l
shal l be e x h i b i t e d an d a cop y t h e r e o f d e l i ve r e d
to th e pe r so n on w ho m i t i s ser ve d, t e n de r i n g to
hi m th e fee s for on e day ' s a t t e n d a n c e an d th e
ki l o me t r a g e al l ow e d b y the s e Rul es, e xc e p t that,
whe n a s u b p oe n a i s issue d b y o r o n behal f o f
the R e p u bl i c of th e P h i l i p p i n e s or an office r or
age nc y thereof, the te n de r nee d not be ma de. The
se r vic e mus t be mad e so as to all ow the w i t ne s s
a r e a s o n a b l e ti m e for p r e p a r a ti o n and tr ave l to the
pl ac e of a tte n da nc e . If the su bpoe n a is duces tecum,
the re as on a bl e cost of pr od uc i n g the books,
d o c u m e n t s o r t h i n g s d e m a n d e d s h a l l al s o b e
te n de re d. (6a, R23)
Sec. 7. Personal appearance in court. A per son
p r e s e n t i n c ou r t be f or e a j u d i c i a l off i c e r ma y
be requi re d to testi fy as i f he were in a tte n da nc e
u p o n a s u b p o e n a i s s u e d b y s uc h c o u r t o r
officer. (10, R23)
Sec. 8. Compelling attendance. In cas e of
failure of a w i t ne s s to atte n d, the court or judge
i s su i n g th e s u b p o e n a , upo n proof o f the ser vi c e
t h e r e o f an d o f th e fai l ur e o f th e w i t n e s s , ma y
i ssu e a w a r r a n t to th e she r i f f of th e p r ov i n c e ,
o r hi s d e p u t y , t o ar re s t th e w i t n e s s an d br i n g
him before the court or officer where his atte n danc e
333

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21

R E M E D I A L LAW

COMPENDIU M

S E C S . 9 , 10

i s r e q u i r e d , an d th e cos t o f suc h w a r r a n t an d
s e i z u r e o f s u c h w i t n e s s s h a l l b e pai d b y th e
w i t n e s s i f th e c our t i s s u i n g i t shal l d e t e r mi n e
th a t hi s f a i l u r e t o a n s w e r th e s u b p o e n a wa s
willful and w i t h ou t just e xc use . (11 , R23)
Sec. 9 . Contempt. F a i l u r e by an y p e r s o n
w i th ou t a de quat e caus e to obey a su bp oe n a serve d
upo n hi m shall be de e me d a c on te mp t of the court
from w hi c h the su bpoe n a i s i ssue d. I f the su bpoe n a
wa s not i ssue d by a court, the d i s o be di e n c e the ret o
shall be pu ni s h e d in ac c or dan c e wit h th e appl icable
law or Rule. (12a, R23)
NOTE
1. See Sec . 3, et seq., Rule 71 on i n d i r e c t or c o n s t r u c t i v e
c o n t e m p t . Whil e, unde r t h a t se c ti on, indirect contem pt
is to be punished only after writ ten charge and he a ri n g, i
t i s also provided tha t "nothing in this section shall be
so construed as to pre ve nt the court from issuing process
to bring the accused pa rt y into court , or from hol di ng
him in c ust od y pe ndi n g such proceedings."
Sec. 10. Exceptions. The pr ov i si on s of sec ti on s
8 and 9 of thi s Rule shall not apply to a w i t ne s s wh o
r e s i de s mor e tha n on e h u n d r e d (100) ki l o me t e r s
fro m hi s r e s i d e n c e t o th e pl ac e w h e r e h e i s t o
te s ti f y by th e or di n a r y c ou r s e of tr avel , or to a
de t e n t i o n pr i s one r i f no pe r mi s s i o n of th e court in
w hi c h hi s cas e i s p e n di n g wa s obt ai ne d .
(9a,
R23)
NOTES
1. The right not to be compelled to attend upon a
subpoena by reason of the distance from the residence of
the witness to the place where he is to testify is sometimes

RUL E

21

SUBPOEN A

SE C . 10

called the viatory right of a witness. The present provi


sion, unlike its predecessor, does not distinguish as to
whether or not the witness resides in the same province
as the place where he is required to go and testify or
produce documents. What is now determinative is that
th e di s t a nc e b e t w e e n bot h pl a ce s does not exceed
100 kilometers by the ordinary course of travel, generally
by o ve rla nd t r a n s p o r t a t i o n . The former di st a nce of
50 kilometers has been increased in view of the faster
and more available means of travel now obtaining in the
country.
2. In th e case of Petition for Contempt Against
Benjamin Ravanera (L-15902, Dec. 23, 1964), the Supreme
Court declined to pass on the issue as to whet he r this
viatory right is available in criminal cases. However, in the
later case of People vs. Montejo (L-24154, Oct. 31 , 1967), it
was held tha t this right is available only in civil cases.

RULE 22
COMPUTATION OF TIME
Sec ti o n 1. How to compute time. In c o mp u t i n g
any pe ri od of ti me pre scr i be d or al l ow e d by the s e
Rul es, or by or de r of th e court, or by an y a ppl i c abl e
statute , th e day of th e act or e ve n t from w hic h the
d e s i g n a t e d pe r i o d o f ti m e be gi n s t o ru n i s t o b e
e xc l u de d an d th e dat e o f p e r f or ma n c e i n c l u de d
. I f th e las t da y o f th e pe r i od , a s thu s c o m p u t e d ,
falls on a S at ur day , a Su n day , or a le gal h ol i da y
i n th e pl ac e w he r e th e c our t si ts , th e ti m e shal l
not run unti l th e ne x t w or ki n g day. (n)
NOTES
1. The pertine nt provisions of the Civil Code state:
"Art. 13. When the laws speak of years, months,
days or nights, i t shall be understood that years are
of thre e hundre d sixty-five days each; mont hs, of
thirt y days; days, of twenty-four hours; and nights
from sunset to sunrise.
If mont hs are desi gnate d by their na me, the y
shall be computed by the number of days which they
respectivel y have.
In c om put i ng a period, the first day shall be
excluded, and the last day included."
2. This Rule refers to the computation of a period of time and
not to a specific date fixed for the performance of an act.
It applies only when the period of time is prescribed by
these Rules, by order of the court or by any applicable
statute. It adopts the rule on pretermission of holida ys, tha
t is, the exclusion of such holida ys in the computati on
of the period, whe ne ve r the first two conditions stated in
this section are present.
336

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22

C O M P U T AT I O N O F T IM E

3. Thus, the method of computation under this Rule does not


generally apply to those provided in a contract (Art. 1159,
Civil Code), a specific date set for a court hearing or a
foreclosure sale (Rural Bank vs. CA, et al., L-32116, April
21,1981) or prescriptive (not reglementary) pe ri od s
spec ific all y provi de d by th e Re vised Pe na l Code for
felonies therein (Yapdiangco vs. Buencamino, L-28841, June
24, 1983).
4. Since this Rule is likewise based on the provisions of Art. 13
of the Civil Code, the meaning of the terms therein are also
applicable. Accordingly, a pleading filed on the last day of
the re gl e m e nt a r y period but after office hours is still
considered seasonabl y filed if duly mailed (Caltex [Phil.],
Inc. vs. Katipunan Labor
Union, 98 Phil. 340) or is
received by a person authorized to do so (see De Chavez
vs. Ocampo, et al., 66 Phil. 76), since a day consists of
24 hours.
5. As explained he rea fte r in Rule 39, the period of
redemption of real properties sold at execution sale is 12
months, hence following the provisions of this Rule in
relation to the aforequoted Art. 13 of the Civil Code, the
redemption period is actually 360 days. In computing when
such period begins to run or ends, the provisions of this
Rule govern.
6. In consi de ring the application of the rule on
pre t e rm i ssi on of holidays, the second sentence of this
section refers to the place where the court sits. This is
because certain non-working holidays, or special days
as they were sometimes termed, are applicable to and
observed only in some pa rtic ula r places or regions of
the country.
7. In Labad vs. The University of Southwestern Philippines, et al.
(G.R. No. 139665, Aug. 9, 2001), this section and the
subse quent ramifications arising there from
were
explai ne d by the Suprem e Court as
337

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22

R E M E D I A L LA W C O M P E N D I U M

SE C . 1

herein substa ntial l y indicated, thus: "Based on Sec. 1,


Rule 22 and as applied in several cases, where the last
day for doing any act required or permitted by law falls
on a Saturda y, a Sunda y, or a legal holiday in the place
where the court sits, the time shall not run until the next
worki n g day. In thi s case, pe ti t i one r still had until
December 28, 1998, a Monda y and the next busi ness
day, to move for a 15-day extension considering tha t
December 26, 1998, the last day for petitioner to file her
petition for review, fell on a Sat urda y. The motion for
extension filed on December 28, 1998 was filed on time
since it was filed before the expiration of the time sought
to be extended."
Th e nex t issu e t o resol v e wa s how th e 15-da y
extension should be reckoned, either from December 26,
1998 or December 28, 1998. As a rule, the extension
should be tacked to the original period and commence
i m m e d i a t e l y afte r th e e x p i r a t i o n o f suc h pe r i o d .
However, in Moskowsky vs. Court of Appeals, et al.
(G.R. No. 104222, Mar. 3, 1994) and Vda. de Capulong,
et al. vs. Workmen's Insurance Co., Inc., et al. (L-30960,
Oct. 5, 1989), the Supreme Court allowed the extended
period to commence from the specific time pra yed for
in th e motion for exte nsion. In thi s case, pe ti t i one r
specifically manifested tha t she be granted an extension
of 15 days from December 28, 1998, or until J a n ua r y 12,
1999, to file her pe t it i on for review. The period for
reckoning the commencement of the additional 15 days
should hence be from December 28, 1998. Accordingly,
he r p e t i t i o n filed wit h th e Co ur t o f A p p e a l s o n
J a n u a r y 12, 1999, exactly 15 da ys from December 28,
1998, was filed on time.
8. . On the c o m pl e m e nt a r y de cisional rule in the
computation of periods as applied to pleadings, see the
notes under Sec. 6, Rule 11.

RUL E

22

C O M P U TATI O N

O F TIM E

SE C . 2

9. The much later case of Commissioner of Internal Revenue, et


al. vs. Primetown Property Group, Inc. (G.R. No. 162155,
Aug. 28, 2007) calls for a revisiting of the foregoing
comments and holdings on the computation of periods of
time allowed or prescribed by the Rules, a court order or an
applicable sta tute . It shall be noted here that the period of
time in dispute involves Sec. 229 of the National Inte rnal
Revenue Code which provides for the two-year prescriptive
period for filing a judicial claim for tax refund or credit
reckoned from the pa yment of said tax or penalt y. There
was no question that the taxpa yer' s right to claim a refund
or credit arose on April 14, 1998 when it filed its final
adjusted ret urn. The controverted issue was whether the
two-year period was equivalent to 730 days, pursua n t to
Art. 13, Civil Code, as claimed by petitioner, hence the
respondent' s claim submitted 731 days after its aforesaid
re turn was one day beyond the prescriptive period; or, as
contended by the respondent, the 731st day was within
the prescriptive period since the year 2000 was a leap
year and accordingly consisted of
366 days.
The S u p r e m e Cour t re ca l le d t ha t in National
Marketing Corporation vs. Tecson (97 Phil. 70), it had
ruled tha t a year is equivalent to 365 days regardless of
whet he r it is a calendar year or a leap year, which was
not always consistentl y so. At any rate, it called attention
to the fact that in 1987, E.O. 297, or the Administrative
Code of 1987, was enacted, and Sec. 31 , Chapter VIII,
Book I thereof provides:
Sec. 31 . Legal Periods. - "Year" sha l l be
understood to be twelve calendar months; "month" of
thirty days unless it refers to a specific month in which
case it shall be computed according to the number of
days the specific month contains; "day" to a day of
twenty-four hours; and "night" from sunrise to sunset.

R UL E

22

RE ME DI A L

LAW

COMPENDIU M

SEC .

I t explai ne d tha t a c al e nda r mont h is " a month


designated in the calendar without regard to the number
of days it may contain. It is the period of time running
from the beginning of a certain numbered day up to, but
not including, the corresponding numbered day of the next
month, and if there is not a sufficient number of days in
the next month, then up to and including the last day of
tha t mont h. To il l ust ra t e , one c al e nda r mont h from
De c em be r 31 , 2007 will be from J a n u a r y 1 , 2008 to
Ja nua r y 31 , 2008; one calendar month from Ja nua r y 31 ,
2008 will be from Fe bruar y 1, 2008 until Fe bruary 29,
2008."
Since there obviously exists a manifest incompatibility
in the ma nne r of computing legal periods under the Civil
Code and the Adm i ni st rat i ve Code of 1987, the Court
declared that the aforecited provision of E.O. 292, being
the more recent law, governs the computation of legal
periods. Since the two-year prescriptive period under the
facts of this case consisted of 24 calendar months and
respondent' s claim was filed on the last day of the 24th
c al e nda r month, i t was conse quentl y filed within the
prescriptive period.
10. T hi s ta x cas e u n de r c o m m e n t a ffords th e opportunit y to
invite attention to some of the holdings of the Supreme
Court in National Marketing Corporation, vs. Tecson, et al.
(139 Phil. 584) on the antecedents of Art. 13 of the Civil
Code which limits the connotation of each "year" the rein to
365 days. Prior to the Civil Code of Spain, the Spanish
Supreme Court had held tha t when the law spoke of
months, it mea nt a month of 30 days, not the "natural,"
"solar," "calendar," (or "civil") months in the absense of
express provisions to the contrary. This concept was
modified in the Philippines by Sec. 13 of our Revised
Administrative Code, pursua n t to which a "month" shall
be understood to refer to a "calendar" month. With the
enactme nt of our Civil Code, we re verted to the rule in
340

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O F T IM E

SE C . 1

the Spa nish Civil Code, but with the addition of "years,"
which wa s orda i ne d to mea n 365 da ys. The pre se n t
provisions of E.O. 292 again adopts tha t concept of a
calendar month, with the modification of how many shall
compose a year.
11. . As earlier observed, the method of computation under
this Rule does not in general apply to prescriptive periods
provided therei n by the Revised Penal Code for fe l oni e s
suc h a s i n Ar t s . 9 0 an d 9 1 the re of. The Yapdiangco case,
supra, e xpa nds on this edict on the a u t h o ri t y of local
an d foreign doc t ri ne s. I t is ther e d e m o n s t r a t e d t ha t
a m i s t a k e i s s om e t i m e s mad e in applying st a t ut e s of
limitations in criminal cases and civil suits. The two classes
of sta tute s are essentially different.
I n civil su i t s , th e s t a t u t e i s i n t e r p o s e d b y th e
legislature as an impa rtial arbiter. In the construction of
the penal sta t ute , there is no intendme nt to be made in
favor of either part y. In criminal cases, the State is the
gra nt o r s u r r e n de r i n g by an act of grace the ri ght to
prosecute and declaring an offense to be no longer the
subject of prosecution, hence such sta tute s of limitations
are liberally construed in favor of the accused.
Also, the rule on pretermission of holidays in civil suits
provides tha t in construing its stat ute of limitations, the
first day is excluded and the last day included, unless that
last day is dies non in which case the act may be done on
the succeeding business day. In criminal cases, such a
si t ua t i o n cannot l e ngt he n the period fixed by law to
prosecute such offender. The waiver or loss of the right to
prosecute is automatic and by operation of law. Where
the last day to file an information falls on a Sunda y or
legal holiday, the period cannot be extended up to the
next working day since prescription has already set in.
The que st i on of the applic abil it y of this Rule in
computing periods provided by an "applicable statute," as

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SE C . 2

genericall y referred to, could yield the occasion for a


re l e va nt critique based on our own legal s ystem and
bibliography.
Sec. 2. Effect of interruption. Sh oul d an act
b e don e w hic h effec tive ly i nte r r u pt s th e r u n n i n g
o f th e p e r i o d , th e a l l ow a b l e pe r i o d afte r suc h
i n t e r r u p t i o n shal l star t t o ru n o n th e da y after
notice of th e c e s s a t i o n of th e caus e thereof.
The da y o f th e act tha t cau se d th e i n te r r u pti o n
shall be e xc l u de d in th e c o mp u t a t i o n of th e per i od,
(n)
NOTE
1. The original draft of this section referred to an
act or event which effectively interrupts the runni ng of
the period of time contemplated in the preceding section.
The e ve n t re fe rre d to would inc l ude force majeure,
fortuitous events or calamities. The question, of course,
is the de term inat ion of when the event occurred and was
te rminated, and how the part y affected would know or be
made aware of the period of such interrupti on. It was
believed tha t notice thereof can be given by the court to
the parties, on a case to case basis.
The word "event" was accordingly elim inat ed and
only the "act" done was retained as an express cause for
the interrupti on since that fact would obviously be made
known or notice thereof given to the pa rt y concerned.
P a re nt he t i c a l l y, the i n t e r ru pt i o n of the re gl e m e nt a r y
period as understood in this section does not have the
same concept as inte rrupt ion for purposes of the sta t ute
of limitations or prescripti ve periods in the Civil Code.

RULE 23
D E P O S I T I O N S P E N DI N G ACTION
Sectio n
1.
Depositions pending
action,
when
may be taken. By le av e of court after ju r i s di c t i o n
ha s be e n o b t a i n e d ove r an y d e f e n d a n t o r ove r
p r o p e r t y w h i c h i s th e s u bj e c t o f th e a c t i o n , o r
w i t h ou t suc h leav e after a n answ e r has bee n se r ve d,
the te s t i mo n y of an y pe r s on , w he t he r a party or not,
ma y b e t a ke n , a t th e i n s t a n c e o f an y par ty , b y
d e p o s i t i o n u p o n or a l e x a m i n a t i o n o r w r i t t e n
i n te r r og a t or i e s . Th e a t t e n da n c e o f w i t ne s s e s ma y
be c o mp e l l e d by th e us e of a su bp oe n a as pr ovi de d
i n Rul e 21 . D e p o s i t i o n s shal l b e t a ke n onl y i n
ac c or d a n c e wit h the s e Rul es. The de pos i t i o n of a
pe r s o n c o n f i n e d i n pr i s o n ma y b e ta ke n onl y b y
leave of c our t on suc h te r m s as th e c our t pr esc r i be s,
(la , R24)
NOTES
1. Rules 23 to 28 provide for the different modes of discovery tha
t may be resorted to by a part y to an action, viz.:
a. Depositions pending action (Rule 23);
b. De po si t i o n s before action or pe ndi n g appe a l
(Rule

24);

c. Inte rrogat ories to parties (Rule 25);


d. Admission by adverse party (Rule 26);
e. Production or inspection of documents or things
(Rule 27); and
f. Ph ysi c a l an d m e nt a l e x a m i n a t i o n of pe rson s
(Rule 28).

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SE C . 1

Rule 29 provides for the legal consequences for the


refusal of a party to comply with such modes of discovery
lawfully resorted to by the adverse part y.
2. In criminal cases, the taking of the deposition of witnesses
for the prosecution was formerly authorized by Sec. 7, Rule
119 for the purpose of p e r p e t u a t i n g the evidence to be
presented at the trial, without a similar provision for
defense witnesses. However, in the 1985 Rule s o n
C r i m i n a l P r o c e d u r e , only th e c o nd i t i o na l e x a m i n a t i o n
, an d no t a de po si t i o n , of p r o s e c u t i o n witnesses was
permitted (Sec. 7, Rule 119) and this was followed in the
latest revision (Sec. 15, Rule 119).
3. Depositions are classified into:
a. Depositions on oral examination and depositions upon
writ ten interrogat orie s; or
b. D e p os i t i on s de bene esse an d de po si t i o n s in perpetuam
rei memoriam.
Depositions de bene esse are those ta ken for purposes
of a pending action and are regulated by Rule 23, while
depositions in perpetuam rei memoriam are those taken
to pe rp e t ua t e evidence for purpose s of an antici pate d
action or further proceedings in a case on appeal and are
now re gulated by Rule 24.
4. . The court may determine whether the deposition shoul
d b e t a k e n upo n ora l e x a m i n a t i o n o r w r i t t e n
interrogat orie s to prevent abuse or ha ra ssm e nt (De los
Reyes vs. CA, et al., L-27263, Mar. 17, 1975).
5. . Trial j udge s should e nc oura ge the use of the
different modes of discovery since a knowledge of the
evidence of the adverse part y may facilitate an amicable
settle ment or expedite the trial of a case. However, since
resort the reto is not mandatory, if the pa rtie s choose not to
avail of discovery procedures, the pre-trial should be set
accordingl y (Koh vs. IAC, et al., G.R. No. 71388,

344

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DEPOSITION S

P E N DI N G ACTIO N

SE C . 1

Sept. 23, 1986). This impasse is sought to be partiall y


remedied by the revised Rules.
6. It is the duty of each contending part y to lay before th e
court all th e m a t e ri a l and re l e va n t facts known to him,
suppre ssing or concealing nothing, nor p r e v e n t i n g
a n o t h e r pa r t y , b y cle ver an d a d ro i t ma ni pul a ti on of the
technical rules of evidence, from also presenting all the
facts within his knowledge.
Initiall y, tha t dut y to lay the facts before the court is
accomplished by the pleadings filed by the parties but only
in a general way as only ultimate facts are set forth in the
pleadings. A bill of particulars may be ordered by the
court on motion of a pa rt y but the office of a bill of
particulars is limited to making more particular or definite
th e u l t i m a t e facts in a pl e a di n g, and not to suppl y
evidentiary ma tt e rs. These evidentiary matte rs may be
inquired into and learned by the parties before the trial
through the deposition-discovery mechanism in Rules 24
to 29.
U n f o r t u n a t e l y , i t a p p e a r s t h a t am on g far too
many lawyers (and not a few judges) there is, if not a
re grett able unfamilia rit y and even outright ignorance
abou t th e n a t u r e , p u r p o s e s an d o p e r a t i o n s o f th e
modes of discovery, at least a strong yet unreasoned and
unrea sona ble disinclination to resort to them - which is
a great pity for the intelligent and adequate use of the
deposition-discovery mechanism, coupled with pre-trial
p r o c e d u r e , could effectivel y s h o r t e n th e period of
l i t i ga t i o n an d spee d up a d j u di c a t i o n (Republic vs.
Sandiganbayan, et al., G.R. No. 90478, Nov. 21, 1991).
7. The other principal benefits desirable from the availability
and operation of a liberal discovery procedure are: (1) it is of
great assistance in ascertaining the trut h and preventing
perjury because the witness is examined while his memory
is still fresh, he is generally not coached, he cannot at a
later date contradict his deposition, and

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R E M E D I A L LAW

COMPENDIU M

SE C . 2

his deposition is preserved in case he becomes unavailable;


(2) it is an effective means of detecting and exposing
fake, fraudulent and sham claims and defenses; (3) it
m a ke s a va i l a bl e in a sim pl e , c o n ve ni e n t and often
inexpensive way facts which otherwise could not have
been proved later; (4) it educates the parties in advance
of trial on the real values of their claims and defenses,
t he re b y e n c o ura gi n g s e t t l e m e n t s out of court; (5) i t
expedites the disposal of litigations, saves the time of the
court and helps clear the dockets; (6) it safeguards against
surprise at the trial, prevents delays, simplifies the issues,
and thereby expedites the trial; and (7) it facilitates both
the preparat ion and trial of cases (Fortune Corporation
vs. CA, et al., G.R. No. 108119, Jan. 19, 1994).
8. Sec. 1 of this Rule provides tha t a deposition may be
resorted to after jurisdiction has been obtained over any
defendant, not all defendants. Leave of court is not
necessary to take a deposition after an answer to the
complaint has been filed, but such leave is required where
no answer has yet been filed (even if jurisdiction has been
obtained over any defendant), since before the filing of
th e ans we r , leave of court may be gr a n t e d bu t only
in e x c e p t i o na l or u n u s u a l s i t u a t i o n s (Republic vs.
Sandiganbayan, et al., G.R. No. 112710, May 30, 2001).
Sec. 2. Scope of examination. Unl e s s o t h e r w i s e
or de re d by th e c our t as pr ovi de d by se c ti o n 16 or
1 8 o f thi s Rul e , th e d e p o n e n t ma y b e e x a mi n e d
r e g a r d i n g an y ma t t e r , no t p r i v i l e g e d , w h i c h i s
r e l e v a n t t o th e s u b j e c t o f th e p e n d i n g a c t i o n ,
w h e t h e r r e l a t i n g t o th e cl ai m o r d e f e n s e o f an y
othe r party, i nc l u di n g th e e xi s t e n c e , d e s c r i pt i on ,
n a t u r e , c u s t o d y , c o n d i t i o n , an d l o c a t i o n o f an y
boo ks , d o c u m e n t s , o r ot he r t a n g i b l e t h i n g s an d
th e i d e n t i t y an d l o c a t i o n o f p e r s o n s h a v i n g
kn ow l e dg e of rel e van t facts. (2, R24)

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23

DEPOSITI ON S

P E N D I N G AC T I O N

SECS . 3 , 4

Sec. 3. Examination and cross-examination.

E xa mi n a t i o n an d c r os s - e xa mi n a t i o n o f d e p on e n t s
may pr oc e e d as pe r mi tte d at the trial unde r sec ti ons
3 to 18 of Rule 132. (3a, R24)
NOTE
1. The officer before whom the deposition is taken
does not have the power to rule upon objections to the
questions. He should merely have such objections noted
in the deposition (see Sec. 17).
Sec. 4. Use of depositions. At the trial or upo n
th e h e a r i n g o f a m o t i o n o r a n i n t e r l o c u t o r y
pr oc e e di n g , an y part or all of a de pos i t i on , so far
as a d mi s si bl e un de r the rul es of e vi de n c e , ma y be
u s e d a g a i n s t an y p a r t y wh o wa s p r e s e n t o r
re pr e se nt e d at th e ta ki n g of th e de p osi ti o n or wh o
had du e notic e thereof, in ac c or da nc e wit h an y on e
of th e f ol l ow i n g pr ovi si ons :
(a) Any de p o s i t i o n ma y be use d by an y party for the
pu r pos e of c on tr a di c t i n g or i mp e a c h i n g th e
te s t i mo n y of de p o n e n t as a w itne ss ;
(b) Th e de p osi ti o n of a party or of an y on e wh o at the
ti m e of ta ki n g th e de pos i t i o n wa s an officer, di rector,
or ma n a g i n g agen t of a publ ic or pri vate c or por at i on
, par t ne r s hi p , or as s oc i ati o n w hic h i s a party ma y
be use d by an adver s e party for an y pu r pose ;
(c) The de pos i t i o n of a w i tne ss , w he th e r or not a party,
ma y be use d by any party for any pur pos e i f the
c our t finds: (1) that the w itne s s i s dead; or
(2) that the w i t ne s s resi de s at a di stanc e more tha n
one h u n dr e d (100) ki l ome te r s from the place of trial
or he ar i ng , or i s ou t of th e P hi l i p pi n e s , unl e s s i t
appe ar s tha t his a bse nc e wa s pr oc ured by th e party
offe r i n g th e d e p o s i t i o n ; o r (3) tha t th e w i t n e s s ,

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SE C . 4

i s u n a b l e t o a t t e n d o r t e s t i f y b e c a u s e o f age ,
si c kne ss , infir mity, or i mpr i son me nt; or (4) that the
party offer i ng th e d e p os i t i o n ha s bee n una bl e t o
pr oc ure th e a t t e n da n c e of the w i t n e s s by su bpoe na ;
o r (5) u po n a p p l i c a t i o n an d n o t i c e , t ha t suc h
e x c e p t i o n a l c i r c u m s t a n c e s e xi s t a s t o ma k e i t
de s i r a bl e , in th e i nte res t o f justi c e an d wit h due
r e g a r d t o th e i m p o r t a n c e o f p r e s e n t i n g th e
t e s t i m o n y o f w i t n e s s e s or al l y i n o pe n c our t , t o
al l ow th e de p o s i t i o n to be use d; and
(d) If onl y par t of a d e p o s i t i o n is offe re d in e v i de n c e by
a party, th e a dve r s e party ma y requi re hi m to
i nt r odu c e all of i t w hi c h i s rel e van t to the part
i nt r odu c e d , an d an y party ma y i nt r odu c e any othe r
parts. (4a, R24)
NOT E S
1. . Where the wit ne ss is avail able to testify and the
situation is not one of those excepted under Sec. 4 of this
Rule, his deposition theretofore take n is inadmissible in
evidence and he should in lieu there of be made to
testify (Vda. de Sy-Quia vs. CA, et al., G.R. No. 62283,
Nov. 25, 1983).
2. A de posi ti on may be used for i m pe a c hi n g or contradicting
any witness, but it can be used as evidence by a pa r t y
("for an y p u r p o s e " ) u n d e r th e specific conditions set out
in Sec. 4. If the deposition is tha t of a part y or of an
employee of a corporation which is a party, it can be used
by the adverse part y for im peac hment of the deponent or
as direct evidence of his case, whet he r the de pone n t i s
avail able or not; but said deposition cannot be used by the
deponent -pa rt y as evidence of his case, unless he or the
corporate employee cannot testify for any reason stated in
Par. (c). If the deponent is only a witness and is available
at the trial, his deposition cannot be used as evidence but
may be used only to impeach him.
348

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DEPOSITION S

P E N D I N G A C TI O N

SE C . 5

If the deponent -witness is not available under any of the


circumstances in Par. (c), then his deposition can be used
as direct evidence.
3. . U nd e r th e former Sec. 4(c)(2), th e di st a nc e
provided was more tha n 50 kilometers from the residence of
the deponent to the place of trial or hearing. It has now
been increased to more than 100 kilometers, as in the
a me ndme nt to the rule on subpoenas and for the same
reason (see Sec. 10, Rule 21).
4. De posit i ons ar e chiefly a mode of discovery. They are
intended as a means to compel disclosure of facts resting in
the knowledge of a part y or other persons which are
relevant in a suit or proceeding in court. Depositions and
the other modes of discovery are meant to enable a part y to
learn all the material and relevant facts, not only known to
him and his witnesses but also those known to the
adverse part y and the latter' s own witnesses.
Depositions are not generally meant to be a substitute
for the actual testimony in open court of a party or witness.
The de pone n t must , as a rule, be p re s e n t e d for oral
e xa m i na t i o n in open court a t the trial. Indeed, any
deposition offered to prove the facts therein at the trial of
the case, in lieu of the actual testimony of the deponent in
court, may be opposed and excluded for being hearsay,
except in those specific instances authorized by the Rules
unde r p a r t i c u l a r c ondit i ons and for ce rta i n limi ted
purposes (Dasmarinas Garments, Inc. vs. Reyes, etc., et
al., G.R. No. 108229, Aug. 24, 1993).
Sec. 5. Effect of substitution of parties. Substi tuti o
n of par ti e s doe s not affect the right to us e de p osi ti on
s pr e vi ou s l y ta ke n; and, whe n an ac ti on has bee n
d i s mi s s e d and a n oth e r acti on i n v ol vi n g the same
subjec t i s afterw ar d brought be tw e e n the same
par ti e s or thei r re pr e se nt at i v e s or s uc c e s s or s in
i nte rest, all de p osi ti on s lawfully ta ke n and duly

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23

R E M E D I A L LA W C O M P E N D I U M

SE C S . 6- 9

filed in the for me r ac ti on may be use d in the latter


as i f or i gi nal ly ta ke n the refor. (6, R24)
Sec. 6. Objections to admissibility. Su bje c t to the
pr ovi s i on s of se c ti o n 29 of thi s Rule, obje c ti on ma y
be mad e at th e trial or h e ar i n g to r e c e i v i n g in
e v i de n c e an y d e p o s i t i o n o r part t h e r e o f for an y
r e a s o n w h i c h w o u l d r e q u i r e th e e x c l u s i o n o f
th e e v i de n c e i f th e w i tne s s wer e the n pr e se n t and
te sti fy i ng. (6, R24)
Sec. 7. Effect of taking depositions. A par t y
shal l no t b e d e e me d t o ma k e a p e r s o n hi s ow n
w i t ne s s for an y pu r p os e by ta ki n g his de p osi ti on .
(7, R24)
Sec. 8. Effect of using depositions. Th e i ntro
d u c t i o n i n e v i d e n c e o f th e d e p o s i t i o n o r an y
par t t h e r e o f for an y p u r p os e ot h e r tha n tha t o f
c o n t r a di c t i n g o r i m p e a c h i n g th e d e p o n e n t ma ke s
th e de p o n e n t th e w i t n e s s o f th e par ty i n t r od u c i n g
th e de p o s i t i o n , but thi s shall no t apply t o th e us e
by an a dv e r s e party of a de p o s i t i o n as de s c r i be d in
p a r a g r a p h (b) of se c ti o n 4 of thi s Rule. (8, R24)
Sec. 9. Rebutting deposition. At th e tri a l or
he ar i ng , an y par ty ma y rebu t an y rel e van t e v i de nc e
c o n t a i n e d in a de p o s i t i o n w h e t h e r i n t r od u c e d by
hi m or by an y othe r party. (9, R24)
NOTE
1. The introduction of the deposition binds the part y
who introduces it, since he thereby makes the deponent
his witness, except (a) if it is introduced to impeach or
contradict the witness, or (b) if it is the deposition of an
opposing part y.

350

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D E P O S I T I O N S P E N D I N G A CT I O N SE C S . 10- 11 , 1 2

Sec. 10. Persons before whom deposition may be


taken within the Philippines. - Withi n th e P hi l i p
p i n e s , d e p o s i t i o n s ma y b e t a ke n b e f o r e an y
judge, notary pu bli c, or the pe r s o n referred to in
sec ti o n 14 hereof. (10a, R24)
Sec. 11. Persons before whom depositions may
be taken in foreign countries. In a forei gn state or
c ou nt r y , d e p o s i t i o n s ma y b e ta ke n (a) o n n oti c e
befor e a s e c r et a r y o f e mb a s s y o r le g a t i o n ,
c o n s u l g e n e r al , c o n s u l , vi c e - c on s u l , o r c on s u l a r
agen t of th e Re pu bl i c of th e P hi l i ppi ne s; (b) before
suc h p e r s o n o r offi c e r a s ma y b e a p p o i n t e d b y
c o m mi s s i o n or un de r l e tte r s r ogat ory ; or (c) th e
pe r so n refer red to in se c ti o n 14 hereof. (11a, R24)
NOTE
1. These two sections have been amended to include,
among the persons before whom depositions may be taken,
any person authorized to administer oaths and chosen or
stipulated upon in writing by the parties.
Sec. 12. Commission or letters rogatory. A c o mmi s s i o
n or le tter s rogatory shall be i ssue d only w he n
n e c e s s a r y o r c on ve ni e n t , o n a ppl i c ati on and n oti c e ,
and on suc h ter m s and wit h such di rec ti on a s ar e
jus t an d a p p r o p r i a t e . O f fi c e r s ma y b e d e s i g n a t e d
i n n o t i c e s o r c o m m i s s i o n s e i th e r b y name or
de sc r i pt i v e title and le tter s rogatory may be
a ddr e s se d to th e appr opr i ate judici al auth or i ty in
the forei gn c ountr y. (12a, R24)
NOTES
1. A commission is addressed to any authorit y in a forei gn
count r y a u t h o ri z e d t he re i n to tak e down depositions
and the taking of such deposition is subject to

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S E C S . 13-14

the rules laid down by the court issuing the commission.


Le tters rogatory are addressed to a judicial authorit y in
the foreign country and the taking of such deposition
is subject to the rules laid down by such foreign judicial
authorit y (see The Signe, D.C. La., 37F. Supp. 819, 820).
Le tters rogatory are generally resorted to when there is
difficulty or impossibility of obtaining the deposition by
commission (18 C.J. 653).
2. A commission may be defined as an instrume nt issued by a
court of justice, or other competent tribunal, to authorize
a person to take depositions or do any other act by
a u t h o r i t y of suc h cour t or t r i b u n a l . Le t t e r s rogatory, on
the other hand, are defined as inst rument s sent in the
name and by authorit y of a judge or court to another,
requesting the latter to cause to be examined, upon
interrogat orie s filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. Under our Rules, a
commission is addressed to officers designated either by
name or descriptive title, while letters rogatory are
addressed to some appropriate judicial authorit y in the
foreign state. Letters rogatory may be applied for and i ssue
d only afte r a c om m i ss i o n ha s bee n r e t u r n e d unexecuted
(Dasmarinas Garments, Inc. vs. Reyes, etc., et al., supra).
Sec. 13.
Disqualification
by
interest.

No
d e p os i t i o n shall be ta ke n before a pe r s o n wh o is a
rel ati v e w i thi n th e si xt h de gre e o f c o n s a n g u i n i t y
or affinity, or e mp l oy e e or c o u n s e l of an y of th e
par ti e s; or wh o i s a rel ati ve w i thi n th e sam e de gree ,
or e mpl oy e e of suc h c ou nse l , or wh o i s fi na nci al ly
i nte re st e d in th e ac ti on . (13a, R24)
Sec. 14. Stipulations regarding taking of deposi
tions. I f th e p a r t i e s so s t i p u l a t e in w r i t i n g ,
d e p os i t i on s ma y b e ta ke n before an y pe r s o n autho
352

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D E P O S I T I O N S P E N D I N G A CT I O N

S E C S . 15-1 6

rized to a d mi ni st e r oaths , at an y ti me or place , in


ac c or dan c e wit h the s e Rul e s , and w he n s o ta ke n
may be use d like othe r de p osi ti on s . (14a, R24)
NOTE
1. As earlier explained, the parties may stipulate in
writing for the taking of depositions before any person
authorized to administer oaths, whether the deposition is
to be taken in the Philippines or in a foreign country. While
an equivalent of Sec. 14 was also provided in the former
Rules, it was stated therein that the deposition before such
pe rso n ma y be t a ke n "upon any notice, and in any
manner." As a prude nt course of action, that phrase has
been re plac ed by an a m e n dm e n t re qui ri n g tha t said
depositions be ta ken in accordance with these Rules.
Sec. 16. Deposition upon oral examination; notice;
time and place. A party de si r i n g to take the de po
siti on of an y pe r s o n upo n oral e xa mi n a t i o n shall
give r e a s o n a b l e n oti c e i n w r i t i n g t o eve r y ot he r
party to th e ac ti on. The notice shall state the ti me
and pl ac e for ta ki n g th e de pos i t i o n and the nam e
an d a d d r e s s o f e ac h p e r s o n t o b e e x a m i n e d , i f
kn ow n , an d i f th e nam e i s not kn ow n , a ge n e r a l
de sc r i pti on sufficient to identify hi m or the par ti cu
lar class or grou p to w hic h he be l ongs. On moti o n
of any party upo n w ho m the notice i s serve d, the
court may for caus e sh ow n e nl ar ge or sh or te n the
ti me. (15, R24).
Sec. 16. Orders for the protection of parties and
deponents. After n oti c e is s e r v e d for t a ki n g a
d e p o s i t i o n b y or a l e x a m i n a t i o n , u p o n m o t i o n
se as ona bl y mad e by any party or by the pe r so n to
be e xa mi n e d and for good caus e sh ow n , the court
i n w h i c h th e a c t i o n i s p e n d i n g ma y ma k e a n
order that the de p osi ti o n shall not be ta ke n, or that

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R E M E D I A L LAW

COMPENDIU M

SE C . 17

i t ma y be ta ke n only at some de s i g n a t e d pl ac e othe r


tha n tha t state d in th e notic e , or tha t i t ma y be
t a ke n onl y o n w r i t t e n i n t e r r o g a t o r i e s , o r tha t
c er tai n ma tte r s shall not be i n qui re d into, or that
the sc op e of the e xa mi n at i o n shall be held wit h no
on e pr e s e n t e xc e p t th e par ti e s t o th e ac ti o n and
thei r officers or c ounse l , or tha t after bei n g seal e d
th e de p o s i t i o n shall be ope ne d only by or de r of the
c our t, o r tha t sec re t pr oc e s s e s , d e v e l o p me n t s , o r
r es e a rc h nee d not be di s c l ose d , or that th e par ti e s
shal l s i m u l t a n e o u s l y file s pe c i fi e d d o c u me n t s or
i n f o r ma t i o n e n c l o s e d i n s e al e d e n v e l o p e s t o b e
ope ne d as di rec te d by th e court; or th e cour t ma y
ma k e an y ot he r or de r w hi c h j u s t i c e r e q u i r e s t o
p r ot e c t th e par t y o r w i t n e s s fro m a n n o y a n c e ,
e mba r r a s s me n t , or op pr e s si on . (16a, R24)
Sec. 17. Record of examination; oath; objections.
The officer before w ho m the de posi ti on i s to be take n
shall pu t th e w i t ne s s o n oat h an d shall pe r s on a l l y
, o r b y s o me o n e ac t i n g un de r hi s di r e c t i o n an d i n
his pr e s e n c e , rec or d th e t e s t i mon y o f th e w i t ne s s .
Th e t e s t i m o n y shal l b e t a ke n s t e n o g r a p h i c a l l y
unl e s s th e par ti e s agre e ot h e r w i se . All obj e c ti on s
ma d e a t th e ti m e o f th e e x a m i n a t i o n t o th e
qu al i fi c a ti on s o f th e officer ta ki n g th e de p osi ti on ,
or t o th e ma n n e r o f t a ki n g it, o r t o th e e v i de n c e
pr e s e n t e d , or to th e c on duc t of an y party, and an y
othe r obje c ti on to th e pr oc e e di n g s , shall be note d
b y th e of f i c e r u p o n th e d e p o s i t i o n . E v i d e n c e
obje c te d to shall be ta ke n su bje c t to the obje c ti on s .
I n lie u o f p a r t i c i p a t i n g i n th e oral e x a m i n a t i o n ,
par ti e s ser ve d wit h notic e of t a ki n g a d e p os i t i o n
ma y t r a n s m i t w r i t t e n i n t e r r o g a t o r i e s t o th e
officers, wh o shall pr opo u n d the m t o th e w i t n e s s
and rec or d th e a n sw e r s verbatim. (17, R24)

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23

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P E N D I N G A C TI O N

S E C S . 18-1 9

Sec. 18. Motion to terminate or limit examination.


At an y ti m e du r i n g th e ta ki n g of the de pos i t i on ,
o n m o t i o n o r p e t i t i o n o f an y p a r t y o r o f th e
d e p on e n t an d upo n a s h ow i n g tha t th e e xa mi na
tio n i s be i n g c o n d u c t e d i n bad fai t h o r i n suc h
ma nne r a s u n r e a s on a bl y t o ann oy , e mba r r as s , o r
oppr es s the de pon e n t or party, th e c our t in w hic h
the ac ti o n i s p e n di n g or th e Re gi onal Trial Court
of the place w he r e the de posi ti o n i s be ing ta ke n may
or de r th e office r c o n d u c t i n g th e e x a m i n a t i o n t o
ce as e for thw i th from ta ki n g the de pos i t i on , or ma y
li mi t th e sc op e an d ma n n e r o f th e t a ki n g o f th e
de pos i t i on , as pr ovi de d in sec ti o n 16 of thi s Rule.
I f th e or de r mad e t e r mi n a t e s th e e xa mi n a t i on , i t
shall be r es u me d the reafte r only upo n the or der of
the court in w hi c h th e acti on i s pe n di ng . Upo n de
ma n d o f th e o b j e c t i n g par t y o r d e p o n e n t , th e
ta ki n g of the de p osi ti o n shall be s u s pe n de d for the
ti me n e c e s s a r y to mak e a notic e for an or der. In
g r a n t i n g o r r e f u s i n g suc h or de r , th e c our t ma y
i mpos e upo n e i the r party or upo n the w i tne s s the
r e qui re me n t to pay suc h c osts or e xpe n s e s as the
court ma y de e m re as on a bl e . (18a, R24)
Sec. 19. Submission to witness; changes; signing.
W he n th e t e s t i m o n y i s full y t r a n s c r i b e d , th e
d e p o s i t i o n shal l b e s u b mi t t e d t o th e w i t n e s s for
e xa mi n a t i o n and shall be read to or by him, unl e s s
suc h e xa mi n a t i o n and readi n g are w aive d by the
w i tne s s and by the partie s. Any c ha ng e s in form
o r s u bs t a n c e w hi c h th e w i t n e s s de s i r e s t o ma k e
shall be e nte re d upo n the de pos i t i o n by the officer
w i t h a s t a t e m e n t o f th e r e a s o n s g i v e n b y th e
w i t n e s s for ma ki n g the m . Th e d e p o s i t i o n shal l
the n be si gne d by the w i tne ss , unl e s s the par ti e s
b y s t i p u l a t i o n w ai v e th e s i g n i n g o r th e w i t n e s
s is ill or c ann o t be found or refuses to sign. If the

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R E M E D I A L LAW C O M P E N D I U M

SE C S . 20- 2 3

de pos i t i o n i s not si gne d by th e w i t ne s s , th e officer


shall sign i t an d state on the rec or d th e fact of the
w aive r or of th e il l ne s s or a bse nc e of th e w i tne s s or
th e fact o f th e refu sa l t o sig n t og e t h e r w it h th e
reas o n gi ve n the ref or, i f any, an d th e de p o s i t i o n
ma y the n be use d as fully as th oug h si gne d , unl e s s
on a moti o n to su ppre s s un de r se c ti o n 29 (f) of thi s
Rul e , th e c our t h ol d s tha t th e r e a s o n s gi ve n for
th e refusal to sign re qui re rejec ti on of th e de posi
tion in w hol e or in part. (19a, R24)
Sec. 20. Certification and filing by officer. The offic e
r shal l c e r ti f y o n th e d e p o s i t i o n tha t th e w i t n e s s
wa s dul y sw or n t o b y hi m an d tha t th e de p o s i t i o n i s
a tru e rec or d of the t e s t i mon y give n b y th e w i t n e s s
. H e shal l the n s e c u r e l y sea l th e de p o s i t i o n in an
e nve l op e i n dor se d wit h th e title of th e ac ti o n and
mar ke d "De posi ti on o f (here i nser t th e nam e of
w i tne ss ) " an d shall pr ompt l y file i t wit h th e cour t in
w hic h th e ac ti o n i s pe n d i n g or sen d i t by r eg i s te re
d mail to th e cler k the re o f for filing. (20, R24)
Sec. 21 . Notice of filing. The officer ta ki n g the
de p o s i t i o n shall give pr omp t n oti c e of its filing to
all th e par ti e s. (21 , R24)
Sec. 22. Furnishing copies. Upo n pa y me n t of
r e a s o n a b l e c h a r g e s t h e r e f o r , th e of f i c e r s ha l l
fur ni sh a cop y of th e d e p os i t i o n to an y par ty or to
th e d e p on e n t . (22 , R24)
Sec. 23. Failure to attend of party giving notice.
If th e party gi vi n g th e notic e of th e ta ki n g of a de po
si ti o n fails t o at te n d an d pr oc e e d t h e r ew i t h an d
an ot he r at te n d s in pe r so n or by c ou ns e l pu r s u a n
t t o th e notic e , th e c our t ma y or de r th e par ty gi vi n
g
356

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23

D E P O S I T I O N S P E N D I N G A C TI O N

SE C S . 24- 2 6

the notic e to pay suc h other party the a moun t of


the re as on a bl e e xp e n s e s inc ur red by hi m and his
counse l i n s o atte ndi ng , inc ludi n g reasonabl e
attor ney' s fees. (23a, R24)
Sec. 24. Failure of party giving notice to serve sub
poena. If the party gi vi n g the notice of the ta ki n g
of a de pos i t i o n of a w i t ne s s fails to serve a su bpoe n a
upo n hi m and th e w i tne s s be c ause of suc h failure
doe s not atte n d , and i f a n oth e r party a tte n d s in
pe r so n or by c ou ns e l be c au s e he e xpe c t s th e de po
siti on of tha t w i t n e s s to be ta ke n , the c our t ma y
or de r th e party gi vi n g th e notic e to pay suc h other
pa r t y th e a m o u n t o f th e r e a s o n a b l e e x p e n s e s
i nc ur red by hi m and his c ounse l in so at te n di n g ,
i nc l u di n g re as on a bl e attorney' s fees. (24a, R24)
Sec. 25.
Deposition upon written interrogatories;
service of notice and of interrogatories. A par t y
de si r i n g to tak e th e de pos i t i o n of any pe r s o n upo n
w r i t t e n i n t e r r o g a t o r i e s shal l se r v e th e m upo n
every othe r party wit h a notice stati n g the nam e
and a ddr es s of th e pe r so n wh o i s to answ e r the m
and the nam e or de sc r i pti ve title and addres s of the
officer before w ho m the de p osi ti o n i s to be take n.
Within te n (10) day s thereafter, a party so served
ma y ser v e c r os s - i n t e r r og a t o r i e s upo n th e part y
pr op os i n g to take the de posi ti on. Within five (5)
day s t h e r e a f t e r , th e l atte r ma y ser v e r e - di r e c t
i n t e r r o g a t o r i e s u po n a par t y wh o ha s s e r v e d
c r os s- i nte r r oga t or i e s. Within three (3) days after
bein g serve d wit h re-di rec t i nte r r og at or i e s , a
party ma y ser ve r ec r os s- i nte r r og at or i e s upo n the
party pr op os i n g to take the de posi ti on. (26, R24)
Sec. 26. Officers to take responses and prepare
record. A cop y of th e n oti c e an d c o pi e s of all

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COMPENDIU M

SE C S . 27-2 9

i n t e r r o g a t o r i e s serve d shal l b e d e l i v e re d b y
th e par t y t a ki n g th e d e p o s i t i o n t o th e off i c e r
d e s i g n a t e d i n th e n o t i c e , wh o s h a l l p r o c e e d
pr omptly, in th e ma nne r pr ovi de d by sec ti on s 17,
19 and 20 of thi s Rule, to take th e te s ti mon y of the
w i t ne s s in r es pon s e to the i n te r r oga t or i e s and to
pr e par e , cer tify, an d file or mail th e d e p o s i t i o n ,
a t t a c h i n g t h e r e t o th e cop y o f th e n oti c e an d the
i nte r r og at or i e s rec ei ve d by him. (26, R24)
Sec. 27. Notice of filing and furnishing copies.
Whe n a de pos i t i o n upo n i n te r r oga t or i e s i s filed, the
officer ta ki n g i t shall pr omptl y give notice the reo f
to all th e par ti e s, and ma y fur ni sh c opi e s to the m
o r t o th e d e p o n e n t upo n p a y me n t o f r e a s o n a b l e
c har ge s the ref or. (27, R24)
Sec. 28. Orders for the protection of parties and
deponents. After th e se r vic e of th e i n te r r oga t or i e s
an d pr i o r t o th e t a ki n g o f th e t e s t i m o n y o f th e
d e p o n e n t , th e c o u r t i n w h i c h th e a c t i o n i s
pe n di ng , on moti o n pr omptl y mad e by a par ty or a
d e p on e n t , and for good cau s e sh ow n , ma y mak e an y
or de r s pe c i f i e d in s e c t i o n s 15, 16 an d 18 of thi s
Rule w hi c h i s a p pr opr i at e an d jus t or an or de r tha t
th e de p o s i t i o n shall not be ta ke n before th e officer
d e s i g n a t e d in th e n oti c e or tha t i t shall not be ta ke n
e xce p t upo n oral e xa mi n a t i o n . (28a, R24)
Sec. 29. Effect
depositions.

of

errors

and

irregularities

in

(a) As to notice. All error s and i r re gu l ar i ti e s in th e n oti c


e for t a ki n g a d e p o s i t i o n are w ai ve d unl e s s w r i tt e n
o bje c t i o n i s pr omptl y ser ve d upo n the par ty gi vi n g
th e notic e .

358

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SE C . 2 9

(b) As to disqualification of officer. O bje c ti on to ta ki n g a


de pos i t i o n be c au s e of di s qu al i fi c at i on of the officer
before w ho m i t i s to be ta ke n i s w aive d u nl e s s mad e
before th e t a ki n g o f th e d e p o s i t i o n begins or as soon
the reafte r as the di s qu al i fi c at i on b e c o m e s k n o w n o
r c o u l d b e d i s c o v e r e d w i t h r ea s on a bl e di l i ge nc e .
(c) As to competency or relevancy of evidence. O bje c ti ons to th e
c o mp e t e n c y of a w i tne s s or th e c ompe te nc y ,
re l e v an c y , or ma te ri al i ty of te s ti mon y are not w ai ve
d by failure to mak e the m before or d u r i n g th e t a ki n
g o f th e d e p o s i t i o n , u n l e s s th e groun d of th e
obje c ti on i s on e w hi c h mi gh t hav e been obvi ate d or
re move d i f pr e se nt e d at tha t ti me.
(d) As to oral examination and other particulars. E r r or s an d
irregularitie s
occurrin g
a t
th e ora l
e x a m i n a t i o n i n th e m a n n e r o f t a ki n g th e
de p osi ti on , in th e form of the qu e s ti on s or a nsw e r s ,
in th e oat h or af fi r ma ti on , or in th e c o n d u c t of
the par ti e s and errors of any kind w hic h mi gh t be
obviate d, re move d, or cured i f promptly pr ose c ute d,
are w ai ve d unl e s s re as on a bl e obje cti on the ret o i s
made at th e ta ki n g of the de posi ti on.
(e) As to form of written interrogatories. Objec t i o n s t o th e
f or m o f w r i t t e n i n t e r r o g a t o r i e s s u b mi t t e d un de r
s e c t i on s 26 and 26 of thi s Rule are w aive d unl e s s
serve d in w ri ti ng upon the party p r o p o u n d i n g t he m
w i t hi n th e ti m e a l l ow e d for ser vi ng s u c c e e di n g
c ross or other i n te r r oga t or i e s and w i thi n three (3)
day s after service of the last i n te r r oga t or i e s
auth or iz e d.
(f) As to manner of preparation. Er rors and i r regul ar i tie s in
the man ne r in whic h the te s ti mon y i s tr ansc r i be d
or the de posi ti o n i s prepare d, si gne d, ce r ti fi e d,
se al e d , i n dor se d , t r a n s mi t t e d , file d, or ot he r w i s e
dealt wit h by the officer under sec ti ons

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SE C . 2 9

17, 19, 20 to 26 of thi s Rule are w aive d unl e s s a mo


ti on to su ppre s s the de pos i t i o n or som e part the re o f
i s ma d e wit h r e a s o n a b l e p r o m p t n e s s after suc h
defect is, or wit h du e di l i ge nc e mi gh t hav e be en , as
ce r tai ne d. (29a, R24)

360

RU L E 2 4
D E P O S I T I O N S BE FO R E ACT IO N
O R P E N D I N G AP PE A L
S e c t i o n 1. Depositions before action; petition. A
p e r s o n wh o d e s i r e s t o p e r p e t u a t e hi s ow n t e s t i m o n
y o r t ha t o f a n o t h e r p e r s o n r e g a r d i n g an y m a t t e r t h a
t ma y b e c o g n i z a b l e i n an y c o u r t o f th e P h i l i p p i n e s
, ma y file a ve ri fi e d pe t i t i o n in th e c o u r t of th e pl a c
e o f th e r e s i d e n c e o f an y e x p e c t e d a d v e r s e p a r t y
, (la , R134 )
Sec . 2. Contents of petition. Th e p e t i t i o n shal l
b e e n t i t l e d i n th e n a m e o f th e p e t i t i o n e r an d
shal l show : (a) t h a t th e p e t i t i o n e r e x p e c t s t o b e a
pa r t y t o a n a c t i o n i n a c o u r t o f th e P h i l i p p i n e s
bu t i s p r e s e n t l y u n a b l e t o b r i n g i t o r c a u s e i t t o b e
b r o u g h t ; (b) th e s u b j e c t m a t t e r o f th e e x p e c t e d
ac ti o n an d hi s i n t e r e s t t h e r e i n ; (c) th e facts whi c h
h e d e s i r e s t o e st a b l i s h b y th e p r o p o s e d t e s t i m o n y
an d hi s r e a s o n s fo r d e s i r i n g t o p e r p e t u a t e it
;
(d) th e n a m e s o r a d e s c r i p t i o n o f th e p e r s o n s h e e x p e c t s
will b e a d ve r s e p a r t i e s an d t he i r a d d r e s s e s s o far a
s k n o w n ; an d (e) th e na m e s an d a d d r e s s e s o f th e
p e r s o n s t o b e e x a m i n e d an d th e s u b s t a n c e o f th e
t e s t i m o n y w h i c h h e e x p e c t s t o e l i c i t fro m e ac h ,
an d shal l as k for a n o r de r a u t h o r i z i n g th e pe t i t i o n e
r t o t a k e th e d e p o s i t i o n s o f th e p e r s o n s t o b e e x a m i n e
d n a m e d i n th e pe t i t i o n for th e p u r p o s e o f
p e r p e t u a t i n g t h e i r t e s t i m o n y . (2, R134)
Sec. 3. Notice and service. Th e p e t i t i o n e r shal l
s e r v e a n o t i c e u p o n e a c h p e r s o n n a m e d i n th e
pe t i t i o n a s a n e xp e c t e d a d ve r s e pa rt y , t o ge t h e r wit
h a copy of th e p e t i t i o n , s t a t i n g t ha t th e p e t i t i o n e r
will a ppl y t o th e c o ur t , a t a tim e an d plac e na m e
d

361

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24

R E M E D I A L LA W C O M P E N D I U M

SE C S . 4-7

t h e r e i n , for th e or de r d e s c r i be d i n th e pe t i t i on .
A t le as t tw e n t y (20) day s before th e dat e o f th e
h e a r i n g , th e c our t shal l c au s e n oti c e t h e r e o f t o
be ser ve d on th e par ti e s and pr os pe c ti v e d e p on e n t s
i n th e ma n n e r pr ov i de d for s e r v i c e o f s u m mo n s .
(3a, R134)
Sec. 4. Order and examination. If th e c our t is
sati sfie d tha t th e pe r pe t u at i o n of the t e s t i mon y ma y
pr ev e n t a fail ure or de la y of justi c e , i t shal l ma k e
a n or de r d e s i g n a t i n g o r d e s c r i b i n g th e p e r s o n s
w hos e d e p os i t i o n ma y b e ta ke n an d s pe c i fy i n g the
su bje c t ma tte r o f th e e xa mi n a t i on , an d w h e t h e r the
de p o s i t i o n s shall b e ta ke n upo n oral e xa mi n a t i o n
o r w r i t t e n i n te r r og a t or i e s . Th e d e p o s i t i o n s ma y
the n be ta ke n in ac c or d a n c e wit h Rul e 23 before
th e he ar i ng . (4a, R134)
Sec. 5. Reference to court. For th e pu r p os e of
a p p l y i n g Rul e 23 to d e p o s i t i o n s for p e r pe t u a t i n g
te s t i mo n y , eac h re fe re nc e th e r ei n t o th e c our t i n
w hi c h th e ac ti o n i s p e n d i n g shal l b e d e e m e d t o
refe r t o th e c our t i n w hi c h th e pe ti ti o n for suc h
de p o s i t i o n wa s filed. (5a, R134)
Sec. 6. Use of deposition. If a de p osi ti o n to per
pe t u at e t e s t i mon y i s ta ke n un de r thi s Rul e, or if,
al t h ou g h no t so ta ke n , i t w oul d be a d mi s s i bl e in
e v i de n c e , i t ma y b e use d in an y ac ti o n i n v ol v i n g
th e sam e su bje c t matte r s u b s e q u e n t l y br ou g h t i n
ac c or d a n c e wit h th e pr ovi s i on s of se c ti on s 4 an d 5
of Rule 23. (6a, R134)
Sec.
7. Depositions pending appeal. If
an
appe a l ha s bee n ta ke n from a j u dg me n t of a court,
i nc l u di n g th e Court of A ppe al s in prope r c ase s , or
be f or e th e t a ki n g o f d e p o s i t i o n s o f w i t n e s s e s t
o
362

RUL E 2 4

D E P O S I T I O N S B E F O R E A C TI O N
O R PEN DIN G APPEA L

SE C S .

1-7

pe r pe t uat e their te s ti mon y for use in the e ve n t of


further pr oc e e di n g s in the said court. In suc h case
the party wh o de si re s to pe r pe tuat e the te s ti mon y
may mak e a moti o n in the said court for leave to
tak e th e d e p o s i t i o n s , upo n th e sam e notic e an d
ser vi ce the reo f as i f the ac ti on wa s pe n di n g the rei n.
The moti on shall state (a) the na me s and a d dr es s e s
of the pe r s on s to be e xa mi n e d and the s u bs t an c e
o f the te s t i mo n y w hi c h h e e xpe c t s t o elici t from
eac h ; an d (b) th e r e a s o n for p e r p e t u a t i n g thei r
te sti mony. I f the c our t finds tha t the pe r pe t u at i o n
of th e t e s t i m o n y i s pr ope r to avoi d a fail ur e or
del a y o f j us ti c e , i t ma y ma k e a n or de r a l l ow i n g
th e d e p o s i t i o n s t o b e ta ke n , an d t h e r e u p o n th e
d e p o s i t i o n s ma y b e ta ke n an d use d i n th e sam e
m a n n e r an d u n de r th e sa m e c o n d i t i o n s a s ar e
pr esc r i be d in the s e Rule s for de p osi ti on s take n in
pe n di n g ac ti ons. (7a, R134)
NOTES
1. This was formerly Rule 134 and has been trans posed here.
As distinguished from depositions de bene esse which are
governed by Rule 23, this Rule regulates the taking of
depositions in perpetuam rei memoriam, the pur pose of
which is to perpetuate the testimony of witnesses for
probable use in a future case or in the event of further
proceedings in the same case. For other ways of perpetu
ating testimony in criminal cases, see Secs. 12, 13 and 15
of Rule 119 and the notes thereunder.
2. Sec. 1 is the procedure for perpetuating testimony of
witnesses prior to the filing of the case and in anticipa tion
thereof. Sec. 7 is the procedure in pe rpet ua ti n g testimony
after judgment in the Regional Trial Court and before it has
become executory or during the pendency of an appeal
therefrom.

RUL E

24

R E M E D I A L LA W C O M P E N D I U M

SE C S . 1-7

3. It is submitted that Sec. 1 may not be availed of in


criminal cases, but the procedure in Sec. 7 is available in
all actions, including criminal cases.
4. Although there is no local juri sprude nce on the matter, it is
also submitted that depositions in perpetuam rei memoriam
under this Rule, just like any other deposi tions, are taken
conditionally and to be used at the trial or proceeding
only in case the deponent is not available. This view
appea rs to be sustained by the fact that under Sec . 6 of
t hi s R ul e , d e p o s i t i o n s in perpetuam rei memoriam may be
used in the action in accordance with the provisions of
Secs. 4 and 5 of Rule 23 which provide, inter alia, for
situations where in the deponent cannot testify as a
witness during the trial.
5. Depositions ta ken under this Rule do not prove the
existenc e of any ri ght and the t e sti m on y t he re i n
pe rpetua ted is not in itself conclusive proof, either of the
existence of any right nor even of the facts to which they
relate, as i t can be controverted at the trial in the same
ma nne r as though no pe rpetua tion of testimony was ever
had (Alonso, et al. vs. Lagdqmeo, 7 Phil. 75). However,
in the absence of any objection to the taking thereof and
even if the deponent did not testify at the hearing of the
case, the pe rpetua ted testimony constitutes prima facie
proof of the facts referred to in his deposition (Rey vs.
Morales, 35 Phil. 230).

RULE 25
INTERROGATORIES TO PARTIES
Se c ti o n 1. Interrogatories to parties; service thereof.
Un de r the same c on di t i on s speci fie d in sec ti o n 1 of
Rule 23, an y party de si r i n g to elicit ma te ri al and
rele van t facts from an y adver s e par ti e s shall file
and serve upo n th e latter w ritte n i nte r r og at or i e s
to be an sw e r e d by th e party serve d or, i f th e party
s e r v e d i s a pu b l i c or p r i v a t e c o r p o r a t i o n or a
par t ne r s hi p or a ss oc i a ti on , by any officer the reo f
c o mp e t e n t to te stify in its behalf, (la )
Sec. 2. Answer to interrogatories. Th e i nte r
rogator i e s shall be an sw e r e d fully in w riti n g and
shall be si gne d an d sw or n to by the pe rson ma ki n g
the m . The party upo n w ho m th e i nte r r og at or i e s
have bee n ser ve d shall file and serve a copy of the
an sw e r s on th e party su b mi t ti n g the i nte r rogato
ries w ithi n fifteen (15) days after ser vice thereof,
un l e s s th e c our t , o n moti o n an d for goo d c aus e
show n , e xte n d s or shor te n s the time. (2a)
Sec. 3.
Objections to interrogatories. O bjecti ons
t o an y i n t e r r og a t or i e s ma y b e p r e s e n t e d t o th e
court w i thi n ten (10) days after ser vice thereof, with
notice as in case of a moti on; and a nsw e r s shall be
de fe rred unti l the obje c ti ons are resol ve d, w hic h
shall be at as early a ti me as is pr ac tic abl e. (3a)
Sec. 4. Number of interrogatories. No par t y
may, w ith ou t leave of court, serve more tha n one
set of i nte r r og at or i e s to be answ e re d by the same
party. (4)

365

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25

R E M E D I A L LAW

COMPENDIU M

SE C . 5

Sec. 6. Scope and use of interrogatories. Inter


r oga t or i e s ma y relate to an y matte r s tha t ca n be
i nqui re d int o un de r sec ti o n 2 of Rule 23, and the
a n sw e r s ma y be use d for th e sam e pu r p ose s pro
vi de d in se c ti o n 4 of the sam e Rule. (5a)
NOTES
1. Jus t like depositions, a part y may serve writ ten
interrogat orie s to the other part y without leave of court
only after answer has been served. Before that, leave of
court must be obtained. Under the same considerations,
inte rroga tories may embrace any relevant matt er unless
the same is (a) privileged or (b) prohibited by court order.
2. A judgme nt by default may be rendered against a p a r t y
wh o fails t o se r v e hi s a n s w e r t o w r i t t e n inte rroga tories
(Cason vs. San Pedro, L-18928, Dec. 28, 1962; see Sec. 3fcJ,
Rule 29).
3. . After service of th e ans we r, leave of court is not
required for the service of written interrogatories upon a
pa rt y {Arellano vs. CFI of Sorsogon, et al., L-34897, July
15, 1975).
4. The liberty of a part y to make discovery is well- ni g h
u n r e s t r i c t e d i f th e m a t t e r s i n q u i re d int o ar e otherwise
rele vant and not privileged, and the inquiry is made in good
faith and within the bounds of law. In light of the general
philosophy of full discovery of relevant facts, it is fairly rare
tha t it will be ordered tha t a deposition should not be ta ken
at all. It is only upon notice and good cause shown tha t the
court may order tha t a deposition shall not be t a ke n . Good
cause mean s a s ub st a nt i a l reason one tha t affords a
legal excuse. The matt er of good cause is to be
determined by the court.
The fact tha t a part y had previously availed of a mode
of discovery, which is by writte n interrogatories, cannot
be considered as good cause to pre vent his resort to a

RULE 25

I N T E R R O G AT OR I E S

T O PAR T I E S

SE C . 6

deposition on oral examination because: (a) the fact that


information similar to that sought had been obtained by
answers to interrogatories does not bar an examination
before trial, and is not a valid objection to the taking of a
deposition in good faith, there being no duplication; and
(b) knowledge by the petitioner of the facts concerning which
the proposed deponent is to be examined does not justify
refusal of such examination. The various modes of
discovery under the Rules are clearly intended to be
cumulative, and not alternati ve or mutuall y exclusive
(Fortune Corporation vs. CA, et al., G.R. No. 108119,
Jan. 19, 1994).
Sec. 6. Effect of failure to serve written interrogato
ries. U n l e s s t h e r e a f t e r a l l ow e d by th e c ou r t
for good caus e show n and to pr eve n t a failure of
justi ce , a party not ser ve d wit h w ritte n inter roga
tor ies ma y not be c ompe l le d by the a dve r se party
t o gi v e t e s t i m o n y i n o p e n c ou r t , o r t o gi v e a
de p osi ti o n pe n di n g appeal, (n)
NOT E
1. To unde rscore the importance and significant benefits of
discovery procedures in the adjudication of cases, this new
provision encourages the use of written interrogatories by
imposing prejudicial consequences on the party who fails
or refuses to avail himself of written interrogatories
without good cause.
A similar
provision has been
inc orporate d in the succeeding Rule 26 for non-availment
of requests for admission by the opposing part y. These two
provisions are directed to the part y who fails or refuses
to resort to the discovery procedures therein, and should
not be confused with the provisions of Rule 29 whic h
pr o vi de s for s a n c t i o n s or ot he r consequences upon a
party who refuses or fails to comply
with di sc ove r y
p r o c e d u r e s duly a va il e d of by his opponent.
367

R UL E

25

R E M E D I A L LA W C O M P E N D I U M

SE C . 6

Where a part y unjustifiedly refuses to elicit facts


material and rele vant to his case by addressing written
interrogatories to the adverse party to elicit those facts,
the latter may not thereafter be compelled to testify thereon
in court or give a deposition pending appeal. The justifi
cation for this is tha t the part y in need of said facts hav
ing foregone the opportunit y to inquire into the same from
the other part y through means available to him, he should
not thereafter be pe rmit ted to unduly burden the latter
with courtroom appea rances or other cumbersome pro
cesses. The sanction adopted by the Rules is not one of
compulsion in the sense tha t the part y is being directly
compelled to avail of the discovery mechanics, but one of
negation by depriving him of evidentiary sources which
would otherwise have been accessible to him.

368

RU L E 26
AD M IS S I O N BY ADVE R S E PARTY
S e c t i o n 1. Request for admission. At an y tim e
afte r i s su e s ha v e bee n j oi ne d , a pa r t y ma y file an d
se rv e upo n an y o t h e r pa r t y a w r i t t e n r e q u e s t for
th e a d m i s s i o n b y th e l a t t e r o f th e g e n u i n e n e s s o f
an y m a t e r i a l an d r e l e v a n t d o c u m e n t d e s c r i be d i n
an d e x h i b i t e d wi t h th e r e q u e s t o r o f th e t r u t h o f
an y m a t e r i a l a n d r e l e v a n t m a t t e r o f fa c t se t
fo rt h i n th e r e q u e s t . C o pi e s o f th e d o c u m e n t s
shal l b e de l i ve r e d wit h th e r e q u e s t u n l e s s copi e s
ha v e a l r e a d y bee n f u r ni s h e d , (la )
Sec. 2. Implied admission. E ac h of th e m a t t e r s
o f wh i c h a n a d m i s s i o n i s r e q u e s t e d shal l b e de e m e d
a d m i t t e d u nl e s s , w i t h i n a pe ri o d d e s i g n a t e d i n th e
r e q u e s t , w h i c h shal l no t b e less t h a n fifteen (15)
da y s afte r se r vi c e there of, o r wi t hi n suc h f u r t h e r
tim e a s th e c o u r t ma y allow o n m o t i o n , th e pa r t y t o
who m th e r e q u e s t i s di r e c t e d files an d se r ve s upo n
th e pa r t y r e q u e s t i n g th e a d m i s s i o n a swor n s t a t e
m e n t e i t h e r d e n y i n g s p e c i f i c a l l y th e m a t t e r s o f
whic h a n a d m i s s i o n i s r e q u e s t e d o r s e t t i n g fort h i n
de t ai l th e r e a s o n s wh y h e c a n n o t t r u t h f ul l y e i t he r
a dm i t o r de n y t hos e m a t t e r s .
Ob j e c t i o n t o an y r e q u e s t for a d m i s s i o n shal l b e
s u b m i t t e d t o th e c o u r t b y th e p a r t y r e q u e s t e d
wi t hi n th e pe r i o d for an d pri o r t o th e filing o f hi s
sw or n s t a t e m e n t a s c o n t e m p l a t e d i n th e p r e c e d i n g
p a r a g r a p h an d hi s c o m p l i a n c e t h e r e w i t h shal l b e
de f e r re d unt i l suc h obj e c t i on s ar e re so l ve d , whi c h
r e s o l u t i o n shal l b e m a d e a s ea rl y a s p r a c t i c a b l e .
(2a)

RUL E

26

R E M E D I A L LAW

COMPENDIU M

S E C S . 1-3

Sec. 3. Effect of admission. An y a d m i s s i o n


mad e by a party pur s uan t to suc h re que s t is for the
pur pos e of th e p e n di n g ac ti o n only and shall not
c o n s t i t u t e a n a d m i s s i o n b y hi m for an y o t h e r
pur pos e nor ma y th e sam e be use d agai n s t hi m in
an y othe r pr oc e e di ng . (3)
NOTES
1. Rule 26, as a mode of discovery, contemplate s
inte rroga tories seeking clarification in order to determine
the trut h of the alle gations in a pleading. A request for
admission should not merely reproduce or reite rate the
alle gations of the requesting part y' s pleading but should
set forth relevant evidentiary matt ers of fact, or documents
describe d in and exhibit ed wit h th e re que st , for the
purpose of e st a bli shi n g the part y' s cause of action or
defense. On the other hand, the adverse part y should
not be c o m pe l l e d to a d m i t m a t t e r s of fact a l re a d y
admitte d in his pleading and concerning which there is
no issue, nor should he be requi red to make a second denial
of those m at t e r s already denied in his answer to the
complaint (Po vs. CA, et al., L-34341, Aug. 22, 1988; Briboneria
vs. CA, et al., G.R. No. 101682, Dec. 14, 1992).
2. . Sec.
1 of thi s Rule, as a m e n de d , specificall y
re qui re s tha t the facts sought to be a dm i t t e d by the
adverse part y must be both material and rele vant to the
i ssue s in th e case. The sam e r e q u i r e m e n t s of both
materialit y and relevancy have likewise been specified in
the preceding Rule 25 on reque st s for admission. This
must be so since the fact in question may be relevant if it has
a logical tendenc y to prove a factual matte r in the case
but it may be immate rial if tha t factual matte r is no
longer in issue, and vice-versa.
3. Sec. 2 now c onta i ns a second pa r a gr a p h with detailed
provisions on objections to requests for admission, as well as
the effects and disposition thereof.
370

RUL E

26

ADMI SSIO N

B Y A D V E R S E PART Y

SE C . 4

4. Where the plaintiff failed to answer a request for admission


filed under this Rule, based on its allegations in its
original complaint, the legal effects of its implied admission
of the facts stated in the request cannot be set aside by its
subsequent filing of an amended complaint. It should
have filed a motion to be relie ved of th e consequences of
said implied admission (Bay View Hotel, Inc. vs. Ker &
Co., Ltd., et al., L-28237, Aug. 31, 1982).
5. Where a copy of the request for admission was served only
upon the counsel of the party so requested, it was held
that there was insufficient compliance with Rule 26. The
general rule that notices shall be served on the counsel of
a part y cannot apply where the Rules expressly provide
that it should be served upon a definite person. Sec. 1 of
this Rule provides that the request for admission should be
served on the part y to whom the request is directed.
Hence, the request for admission was not validly served
and that part y cannot be deemed to have a dm i t t e d th e
trut h of the m a t t e r s of which admissions were re que ste d
(Duque vs. CA, et al. and Valenzuela, etc., et al. vs. CA, et
al, G.R. No. 125383, July 2, 2002).
6. However, an answer to a request for admission properly
served, which was signed and sworn to by the counsel of the
part y so requested, is sufficient compliance with this Rule,
especially in light of counsel's authorit y under Secs. 21
and 23, Rule 138 (Lahada vs. CA, et al,
G.R. No. 102390 and Nestle Philippines, Inc., et al. vs.
CA, et al, G.R. No. 102404, Feb. 1, 2002).
Sec. 4. Withdrawal. The court may all ow the
pa r t y m a k i n g a n a d m i s s i o n u n de r th i s R u l e ,
w he the r e xpr es s or i mpl ie d, to w ith dr aw or ame n d
i t upo n suc h ter m s as may be just. (4)

RUL E 2 6

R E M E D I A L LA W C O M P E N D I U M

SE C . 5

Sec. 6. Effect of failure to file and serve request for


admission. Unl e s s ot h e r w i s e al l ow e d by the c our t
for good c aus e sh ow n and to preve n t a failure of
justi c e , a party wh o fails to file and serve a re que s t
for a d mi s s i o n o n th e a d v e r s e par t y o f ma t e r i a l
and rele van t facts at issu e w hic h are, or ou gh t to
be, w i t h i n th e p e r s o n a l k n o w l e d g e o f th e latte r,
s ha l l no t b e p e r m i t t e d t o p r e s e n t e v i d e n c e o n
suc h facts, (n)
NOT E
1. See the similar provision on unjustified failure of a pa rt y to
avail of writ ten inte rroga tories as a mode of discovery and
the sanction therefor under Sec. 6 of Rule
25. The reason for these new provisions is explained in the note
the re unde r. In Sec. 6 of Rule 25, the sanction consists in
allowing the adverse part y to refuse to give testimony or
make a deposition on appeal respecting the facts involved.
Unde r this section of the Rule on request for admission,
the part y who fails or refuses to request the admission of
the facts in question is himself prevented from t he re a f t e r
pre se nt i n g evidence t he re on . In both cases, the court shall
dete rmi ne on a case to case basis whe t he r or not the nonavail ment of the two modes of discovery was justified or
the ne ga ti ve sanct ions will unjustl y prejudice the erring
part y.

372

RULE 27
PRO DUCTIO N OR INSPECTION
OF DO CUM ENT S OR THINGS
S e c t i o n 1. Motion for production or inspection;
order. Upo n moti o n of an y party s h ow i n g good
c a u s e t h e r e f or , th e c our t i n w hi c h a n ac t i o n i s
p e n di n g ma y (a) or de r an y party to pr oduc e and
p e r mi t th e i n s p e c t i o n an d c o p y i n g o r p h o t o
g r a p h i n g , b y o r o n be h al f o f th e m o v i n g
par ty , o f an y d e s i g n a t e d d o c u m e n t s , p a p e r s ,
b o o k s , ac c ou n t s , le tter s, ph ot ogr a ph s , objec ts or
tangi bl e thi ngs, not pr i vi le ge d, w hi c h c onsti tut e or
c ontai n e v i de n c e ma t e r i a l t o an y ma tte r i nv ol ve d i
n th e ac ti o n an d w hi c h are i n hi s p o s s e s s i o n ,
c us t od y or control; or (b) or der an y party to per mit
e ntry u po n d e s i g n a t e d lan d o r ot he r p r ope r t y i n hi
s pos s e s si o n or c ontr ol for the pur pose of i nspe c ti ng ,
m e a s u r i n g , s u r v e y i n g , o r p h o t o g r a p h i n g th e
p r op e r t y o r an y d e s i g n a t e d r e l e v a n t o bje c t o r
o p e r a t i o n t h e r e o n . Th e or de r shal l s pe c i f y th e
ti me, pl ac e and man ne r of ma ki n g the i ns pe c ti o n
an d t a ki n g c o p i e s an d p h o t o g r a p h s , an d ma y
pre scr i b e suc h te r m s and c on di t i on s a s are just,
(la)
NOTES
1. .

The p r o d u c t i o n
of d oc u m e nt s
affords more
opportunit y for discovery than a subpoena duces tecum as,
in the latter, the documents are brought to the court for the
first time on the date of the scheduled trial wherein
such documents are required
to
be produced. The
inspection of land and other real propert y for the
purposes authorized by this Rule also avoids the need for
ocular inspection thereof by the court.

R UL E

2. .

27

R E M E D I A L LA W C O M P E N D I U M

SE C . 1

In c rim i na l
ca se s, m oti ons for produc t i on or
inspection of documents are governed by Sec. 10, Rule
116, and may be availed of only by the accused generally
during the pendenc y of the case for trial.

3. This mode of discovery does not aut horize the opposing part y
or the clerk or other functionaries of the court to distrain
the articles or deprive the person who produced the same of
their possession, even temporaril y (Tanda vs. Aldaya, 89
Phil. 497).
4. In motions for production of documents under this Rule, it has
been held tha t " a part y is ordinarily entitled to the
production of books, documents and papers which are
material and relevant to the e sta blishm ent of his cause of
action or defense" [General Electric Co. vs. Superior Court
in and for Almeda County, 45 C 2d 879, cited in Martin,
Rules of Court, 3rd edition, Vol. 2, p. 104]. "The test to be
applied by the trial judge in dete rmi ning the re l e va nc y of
d o c u m e n t s an d th e sufficienc y of t hei r description is one
of re asonable ne ss and practicability" [Line Corp. of the
Philippines vs. Moran, 59 Phil. 176, 180). "On the ground of
public policy, the rules providing for production and
inspection of books and papers do not a u t h o ri z e th e
p ro duc t i o n or i nspe ct i on of pri vi le ge d matt er, tha t is,
books and papers which because of their confidential and
privileged character could not be received in evidence" [27
CJS 224]. "In passing on a motion for discovery of document s,
the court should be liberal in de term ini ng whe t he r or not
documents are relevant to the subject matte r of the action"
[Hercules Powder Co. vs. Haas Co., U.S. Dist. Crt., Oct. 26,
1944; 9 Fed. Rules Service, 659, cited in Moran, Comments
on the Rules of Court, 1979 Ed., Vol. 2, p. 102). Likewise, "any
st a t ut e declaring in general term s tha t official records are
confidential should be liberally construed, to have an
implied exception for disclosure when needed in a court of
justice" [Wigmore on Evidence, Vol. VIII, p. 801, citing the
case oiMarbury vs.

R UL E 2 7

P R O D U C T I O N OR I N S P E C T I O N
1 O F D O C U M E N T S O R T HI N G S

SE C .

Madison, 1 Cr. 137, 143] (Banco Filipino vs. Monetary


Board, et al., G.R. No. 70054, July 8, 1986).
5. In an American case, it was held that the court can compel
the plaintiff, under this Rule, to consent to the
exhumati on of the body of the deceased in a case involving
the "accidental death" clause of an insurance polic y
(Zalatuka vs. Metropolitan Life Ins. Co., U.S.C.C.A., Dec.
22, 1939, 108 F. [2d] 405, 2 Fed. Rules
Service, p. 37).
It is believed tha t the aforestated ruling could be
applicable here in a civil case involving the same issue,
considering that Sec. 1 of this Rule also speaks of "objects
or tangible things" which is broad enough to include a
cadaver. On the other hand, Rule 28 of the revised Rules
cannot be invoked for the same purpose as it contemplates
and is limited to physical and mental examination of a
living person. There would, however, be no problem if
the exhumation or postmortem examination is involved in
and necessary for purposes of a criminal action.
6. Although it is not among the modes of discovery, but
considering the similarity of objectives sought to be
subserved, note should be taken of the writ of search and
seizure authorized for the protection of intellectual prop
erty. In a resolution in A.M. No. 02-1-06-SC, dated Janu
ary 22, 2002, the Supreme Court approved the rule on
Search and Seizure in Civil Actions for Infringement of
Intellectual Propert y Rights (Appendix Z) which governs
this judicial process, effective February 15, 2002.

375

RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF P ERSO NS
Se c ti o n 1. When examination may be ordered. In
an ac ti o n in w hi c h the me n ta l or phy si c a l c on di ti o n
of a party i s in c on tr ove r sy , th e court in w hic h th e
ac ti o n i s pe n d i n g ma y in its di sc re ti o n or de r hi m to
su b mi t to a ph y s i c a l or me n ta l e xa mi n a t i o n by a
ph y s i c i an . (1)
NO TES
1. The mental condition of a part y is in controversy in
proceedings for guardia nshi p over an imbecile or insane
person, while the physical condition of a part y is generally
involved in physical injuries cases.
2. . A blood g r o u p i n g t e s t ma y be o r d e r e d an d
conducted under this Rule on a child subject of a paternit y
suit. While the Rule speaks of an examination of a part y,
such child is considered a part y for purposes thereof as the
action is brought for its benefit (Beach vs.
Beach,
U.S.C.A., D.C., June 28,
1940, 3 Fed. Rules Service,
p. 397).
3. . Since the results of the examination are intended to be
mad e publ ic, th e sam e ar e not covered by th e
physic ian-patie nt privilege. Furt he rm ore , such exami
nation is not necessary to treat or cure the patie nt but to
assess the extent of injury or to evaluate his physical or
mental condition.
Sec . 2. Order for examination. Th e or de r for
e x a mi n a t i o n ma y be mad e only on moti o n for good
c a u s e s h ow n an d u po n notic e t o th e par t y t o b e
e xa mi n e d an d t o all othe r par ti e s, an d shall speci fy
376

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28

P H Y S I C A L A N D M E N TA L
E X A M I N ATI O N O F P E R S O N S

SE C S . 3- 4

the ti me, place, manne r , c on di ti on s and sc ope of th e


e xa mi na ti o n and th e per son or pe rson s by w ho m i t
is to be made . (2)
Sec. 3. Report of findings. If r e que s te d by the
party e xa mi n e d , the party c au s i n g the e xa mi na ti o n
to be mad e shall de l i ve r to hi m a copy of a de tai l e d
w ri tte n report of th e e xa mi n i n g phy si c i a n se tti n g
ou t hi s f i n d i n g s an d c o n c l u s i o n s . Afte r suc h
r e q u e s t an d d e l i v e r y , th e p a r t y c a u s i n g th e
e x a m i n a t i o n t o b e ma d e shal l b e e n t i t l e d upo n
re que st to rec ei v e from the party e xa mi ne d a like
report of any e xa mi n at i on , previ ou sly or the reafte r
made of th e same me n ta l or phy si c al c on di ti on. I f
the party e xa mi ne d refu se s to de l i ve r suc h report,
the court on moti o n and notice may ma ke an or der
r e qui r i n g de l i ver y on suc h te r ms as are just, and i f
a phy si c i a n fails or refu se s to ma ke suc h a report
the court may e xcl u d e his te st i mon y i f offered at
the trial. (3a)
Sec. 4. Waiver of privilege. By re qu e st i n g and
obt a i n i n g a report of the e xa mi n at i o n so or de re d
or by ta ki n g th e de p o s i t i o n of the e xa mi n e r , th e
party e xa mi ne d w ai ve s any pr ivilege he may have
i n tha t ac t i o n o r an y othe r i n v ol v i n g th e sa m e
c o n t r o v e r s y , r e g a r d i n g th e t e s t i m o n y o f e v e r y
othe r pe r so n wh o ha s e xa mi ne d or may the reafter
e xa mi n e hi m i n r e s pe c t o f th e sam e me n t a l o r
phy si c al e xa mi n at i on . (4)
NOT E
1.
Where the part y examined requests and obtains
a re p or t on th e r e s u l t s of th e e x a m i n a t i o n , th e
consequences are that (a) he has to furnish the other party
a copy of the re por t of any pre vious or s ub se qu e n t
377

R UL E

28

R E M E D I A L LA W C O M P E N D I U M

S E C S . 3- 4

examination of the same physical and mental condition,


and (b) he waives any privilege he may have in that action
or any other involving the same controversy regarding
the testimony of any other person who has so examined
him or may thereafter examine him. For the physicianpatient privilege, see Sec. 24(c), Rule 130 and Note 4
thereunder.

RULE 29
RE FU S A L TO COMP LY
WIT H MODE S OF DISCOVERY
S e c t i o n 1. Refusal to answer. If a pa rt y or ot he r
d e p o n e n t re fu se s t o a n s w e r an y q u e s t i o n upo n ora l
e x a m i n a t i o n , th e e x a m i n a t i o n ma y b e c o m p l e t e d o n
o t h e r m a t t e r s o r a d j o u r n e d a s th e p r o p o n e n t o f th e
q u e s t i o n ma y p re f e r . Th e p r o p o n e n t ma y t h e r e
afte r appl y t o th e p r o p e r c o ur t o f th e pl ac e w h e r
e th e d e p o s i t i o n i s be i n g t a k e n for a n o r de r t o
c om pe l a n a n s w e r . Th e sa m e p r o c e d u r e ma y b e
a va i l e d o f whe n a p a r t y or a w i t n e s s re fuse s t o a n s w e
r an y i n t e r r o g a t o r y s u b m i t t e d u n d e r Rul e s 2 3 o r
25.
I f th e a p p l i c a t i o n i s g r a n t e d , th e c o u r t shal l
r e q u i r e th e r e f u s i n g pa r t y o r d e p o n e n t t o a n s w e r
th e q u e s t i o n o r i n t e r r o g a t o r y an d i f i t als o fi nd s
tha t th e re fusa l t o a n s w e r wa s w i t h o u t s u b s t a n t i a l
j u s t i f i c a t i o n , i t ma y r e q u i r e th e re f us i n g p a r t y o r
d e p o n e n t o r th e c o u n s e l a d v i s i n g th e re f us a l , o r
bot h o f t he m , t o pa y th e p r o p o n e n t th e a m o u n t o
f th e r e a s o n a b l e e x p e n s e s i n c u r r e d i n o b t a i n i n g th e
or de r , i n c l u d i n g a t t o r n e y ' s fees.
I f th e a p p l i c a t i o n i s de n i e d an d th e c o ur t finds
t h a t i t wa s filed w i t h o u t s u b s t a n t i a l j u s t i fi c a t i o n ,
th e c o ur t ma y r e q u i r e th e p r o p o n e n t o r th e c o u n s e l
a d v i s i n g th e fili ng o f th e a p p l i c a t i o n , o r bot h o f
t hem , t o pa y t o th e re f us i n g pa r t y o r d e p o n e n t th e
a m o u n t o f th e r e a s o n a b l e e x p e n s e s i n c u r r e d i n
o p p o s i n g th e a p p l i c a t i o n i n c l u d i n g a t t o r n e y ' s
fees, (la )
Sec. 2. Contempt of court. If a pa r t y or o t h e r
w i t n e s s re fuse s t o b e sw or n o r re fuse s t o a n s w e r
an y q u e s t i o n afte r be i n g d i r e c t e d t o d o s o b y th e
379

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29

REMEDIA L

LA W C O M P E N D I U M

SE C .

court of the place in w hic h th e d e p os i t i o n i s bei n g


ta ke n , the refusal ma y be c on si de r e d a c ont e mp t of
tha t court. (2a)
Sec. 3. Other consequences. If an y party or an
officer or ma n a g i n g age n t of a par ty refu se s to obey
a n or de r ma d e u n d e r s e c t i o n 1 o f t h i s Rul e
r e qu i r i n g hi m t o an sw e r de s i g n a t e d qu e s t i o n s , o r
an or de r un de r Rule 27 to pr oduc e an y d o c u me n t
o r o t h e r t h i n g fo r i n s p e c t i o n , c o p y i n g , o r
p h o t o g r a p h i n g o r t o pe r mi t i t t o b e don e , o r t o
pe r mi t e ntr y upo n lan d o r othe r pr ope r ty , o r a n
or de r mad e un de r Rule 2 6 r e q u i r i n g hi m t o su bmit
to a ph y s i c a l or me nta l e xa mi n a t i on , th e cour t may
ma k e suc h or de r s i n regar d t o th e refusa l a s are
just, an d a mon g ot he r s th e fol l ow i ng:
(a) A n or der tha t th e ma tte r s r e g a r di n g w hi c h th e
q u e s t i o n s w e r e a s ke d , o r th e c h a r a c t e r o r
d e s c r i pt i o n of th e thi n g or land, or th e c on t e n t s of
th e pape r, or th e ph y s i c a l or me n ta l c on di t i o n of
th e party, o r an y othe r d e s i g n a t e d facts shal l b e
ta ke n to be e s t a bl i s h e d for th e pu r pos e of th e ac ti o n
i n a c c o r d a n c e wit h th e c l ai m o f th e par ty o bt a i n i n
g th e or der;
(b) An or de r re fu s i n g to al l o w th e di s o b e d i e n t part y t o
s u p p or t o r o p p o s e d e s i g n a t e d c l ai m s o r d e f e n s e s o r
p r oh i b i t i n g hi m from i n t r o d u c i n g i n e v i de n c e
d e s i g n a t e d d o c u me n t s o r th i n g s o r ite m s o f
t e s t i m o n y , o r fro m i n t r o d u c i n g e v i d e n c e o f
phy si c a l o r me n ta l c on di ti on ;
(c)A n or de r s t r i ki n g ou t p l e a di n g s o r part s the reof, o r
s t a y i n g fur the r p r oc e e d i n g s unti l th e o r d e r i s
o b e y e d , o r d i s m i s s i n g th e a c t i o n o r p r o c e e d i n g o
r an y par t the reof , o r r e n d e r i n g a j u d g me n t b y
de faul t a gai n s t th e d i s o be di e n t party; an d

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29

R E F U S A L T O C OMP L Y
WIT H M O D E S O F D I S C O V E R
Y

SE C S . 4- 6

(d) In lieu of an y of the foregoing or ders or in a ddi ti on


the ret o , an or der di rec ti ng the arrest of any party
or age n t of a party for di s obe y i n g any of such or de r s
e xce p t an or der to submi t to a phy si c al or me nta l
e xa mi na ti on . (3a)
Sec. 4. Expenses on refusal to admit. If a party
after be i n g ser ve d wit h a re que s t unde r Rule 26 to
admit the g e n u i n e n e s s of any doc u me n t or the truth
of an y ma tte r of fact, ser ve s a sw orn denial the reof
an d i f th e p a r t y r e q u e s t i n g th e a d m i s s i o n s
t h e r e a f t e r p r o v e s th e g e n u i n e n e s s o f su c h
doc u me n t or th e tr ut h of any suc h matter of fact,
he ma y apply to the c our t for an or de r requi r i ng
the othe r party to pay hi m the reasona bl e e xpe n se s
inc ur red in ma ki n g suc h proof, i nc l udi ng attorney' s
fees. Unl e s s th e c our t finds that the re wer e good
reason s for th e de ni a l or tha t a d mi s s i o n s sough t
were of no su bstanti a l i mpor tanc e , suc h or de r shall
be issue d . (4a)
Sec. 5. Failure of party to attend or serve answers.
If a par t y or an offic er or ma n a g i n g age n t of a
party willfully fails to appe ar before the officer wh
o i s to tak e hi s de pos i t i on , after be in g ser ve d with a
pr ope r noti ce, or fails to serve answ e r s to
i n t e r r o g a t o r i e s s u b mi t t e d un de r Rul e 25, after
prope r se r vic e of suc h i nte r r ogat or i e s, the court on
moti on and notice , may stri ke out all or any part of
any pl e a di n g of that party, or di s mi ss the action or
pr oc e e di n g or any part thereof, or enter a judg me n t
by defaul t agains t the party, and in its di screti on,
order hi m to pay reas on abl e e xpe n se s i ncurred by
the other, i nc l u di n g attorney' s fees. (5)
Sec. 6. Expenses against the Republic of
the
Philippines. Expe nse s and attorney' s fees are not
381

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29

R E M E D I A L LAW

COMPENDIU M

S E C S . 4- 6

to be i mpose d upo n the Re pu bl i c of the P hi l i p pi n e s


un de r thi s Rule. (6)
NOT E S
1. Where the plaintiff failed to answer the written
inte rroga tories for unexplained reasons, dismissal of the
complaint is wa rra nt e d under Sec. 5, Rule 29 and such
omission may also be considered as failure to prosecute
the action (Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
2. The former title of this Rule which read "Refusal to Make
Discovery" has been changed in this revision in the
inte rest of accuracy.

RULE 30
TRIAL
Se c ti o n 1. Notice of trial. Upon entry of a case
i n th e tri a l c a l e n d a r , th e cler k shal l notify th e
par ti e s of th e date of its trial in suc h man ne r as
shall e nsur e his rec ei pt of that notice at least five
(5) day s before suc h date. (2a, R22)
NOTES
1. The words "trial" and "hearing" have different me a ni n gs
and c onnota t i ons. Trial may refer to th e reception of
evidence and other processes. It embraces the period for
the introduction of evidence by both parties. Hearing, as
known in law, is not confined to trial but embraces the
several stages of litigation, including the pre-trial sta ge. A
he ari ng does not necessaril y mean presentation of
evidence. It does not necessarily imply the p re s e n t a t i o n
of oral or doc um e nt a r y evidence in open court but that
the parties are afforded the opportunity to
be
he a r d
(Republic vs. Sandiganbayan, et al., G.R. No. 152154,
Nov. 18, 2003).
2. As a matter of procedural due process, it is now required
that the parties should receive notice of the trial at least 5
days before the scheduled date. This is intended to avoid
the usual misunderstandings and failure of the parties to
appear for trial as the previous rule did not spell out these
mechanics of service.
Sec. 2. Adjournments and postponements. A
court may adjourn a trial from day to day, and to
any state d ti me, as the e xpe di ti ou s and c onv e n i e n t
tr an sac ti on of bu si ne s s may require, but shall have
no pow e r to adjour n a trial for a longer period tha n

383

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30

R E M E D I A L LA W C O M P E N D I U M

SE C S . 3- 4

on e m o n t h fo r e a c h a d j o u r n m e n t , no r mor e
tha n thre e mo n th s i n all, e xc e p t w he n a ut h or i z e
d i n w r i t i n g b y th e Cour t A d mi n i s t r a t or , S u p r e m e
Court. (3a, R22)
Sec. 3. Requisites of motion to postpone trial
for absence of evidence. A mo t i o n to p o s t p o n e a
tr i a l o n th e g r ou n d o f a b s e n c e o f e v i d e n c e ca
n b e g r a n t e d on l y u p o n a f f i d a v i t s h o w i n g th e
m a t e r i a l i t y an d r e l e v a n c y o f suc h e v i de n c e , and
tha t du e di l i g e n c e ha s bee n use d t o pr oc ur e it. But
i f th e a dve r s e par ty a dmi t s th e facts to be gi ve n in
e v i de n c e , eve n i f h e obje c ts o r re se r ve s th e ri ght t o
obje ct to thei r a d mi ss i bi l i ty , th e tr ial shal l no t be
p o s t p o n e d . (4a, R22) (As corrected by Resolution of the
Supreme Court, dated July 21, 1998)
Sec . 4. Requisites of motion to postpone trial for
illness of party or counsel. A moti o n to pos t pon e a
trial on th e groun d of i ll ne s s of a party or c ou ns e l
ma y be gr ante d i f i t a ppe ar s upo n affi davit or sw or m
c e r t i f i c a t i o n tha t th e p r e s e n c e o f suc h par t y o r
c ou n s e l a t th e trial i s i n di s p e n s a bl e an d tha t the
c h ar a c t e r o f hi s il l ne s s i s suc h a s t o ren de r hi s nona t t e n d a n c e e xc u s a bl e . (5a, R22)
NOTE S
1. . P o s t p o n e m e n t s ar e a d d r e s s e d to th e soun d
discretion of the court and, in the absence of grave abuse of
discretion, cannot be controlled by ma ndam u s (Olsen vs.
Fressel & Co., 37 Phil. 121).
2. The provisions of Sec. 3 of thi s Rule are not applicable to
criminal cases as the rule on postpone ment s in criminal
cases is governed by Sec. 2, Rule 119 (People vs. Catolico,
L-31261-65, April 20, 1971).

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30

TRIA L

SE C . 5

3. A mere medical certificate is generally insufficient. It must


be under oath or in the form of an affidavit. However, i t has
been held tha t even if the motion to postpone on account of
illness was not accompanied by a medical certificate, since
not every ailment is attended to by a physician and the
required medical certificate under oath could not be
obtained within a limited time, such requi reme nt may be
dispensed with in the inte rest of justice (Sarmiento vs.
Juan, G.R. No. 56605, Jan. 28, 1983).
Sec. 5. Order of trial. S u b j e c t to th e pro
vi si on s of sec ti o n 2 of Rule 31 , and unl e s s the c our t
for spe ci al reason s ot he r w i s e direc ts, the trial shall
be li mi te d to th e i ssue s state d in the pre-trial or der
and shall pr oc e e d as foll ow s:
(a) Th e pl a i n t i f f shal l a d d u c e e v i d e n c e i n su ppor t of
his c ompl ai nt;
(b) The de f e n dan t shall the n adduc e e vi de nc e in
su ppor t of hi s de fe nse , c ou nte rcl ai m, c ross-clai m and
thir d-party complaint;
(c) Th e t hi r d- pa r t y d e f e n da n t , i f any, shal l a d d u c e
e v i d e n c e o f hi s d e f e n s e , c o u n t e r c l a i m , cross-clai m
and four th-par ty c ompl ai nt;
(d) The four th-par ty, and so forth, if any, shall a dduc e
e v i de nc e of the mate rial facts pl e ade d by the m;
(e) Th e pa r t i e
c ross-clai m
in su ppor t
prescri be d
(f)

s a g a i n s t w ho m an y c ou n te r clai m or
ha s been ple ade d, shall adduc e e vi de nc e
of their de fe nse ,
in the or de r to be
by the court;

The par ti e s may the n res pe c ti ve ly adduce r e b u t t i n g


e v i d e n c e only , u n l e s s th e c ou r t , for good r e a s on s
an d i n th e f u r t h e r a n c e o f ju st i c e , p e r m i t s t h e m t o
a d d u c e e v i d e n c e u p o n t h e i r original case; and

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SE C . 5

(g) Upo n a d mi s s i o n of th e e v i de n c e , th e case shall be


de e me d s u b mi tt e d for de c i si on , u nl e s s the c our t
di rec t s th e par ti e s t o ar gue o r t o su b mi t their
r es pe c t i v e me mo r a n d a o r an y further pl e a di n g s .
If se ve r al de fe n dant s or thir d-party de fe n dant s,
and so forth, ha vi n g se par at e de f e n s e s a ppe a r by
di f f e r e n t c ou n s e l , th e c our t shal l d e t e r mi n e th e
rel ati ve or de r of pr e s e n ta ti o n of thei r e v i de nc e , (la ,
R30)
NOT E S
1. . U n d e r s c o r i n g th e i m p o r t a n c e of a p r e - t ri a l
conference and the proceeding conducted therein, this
ame nde d section additionall y provides that , unless the
court specifically directs, the trial shall be limited to the
issues stated in the pre -trial order.
2. Par. (g) declares, for purposes of fixing the date of
s u b m i s s i o n of th e case for de c i si on vi s-a -vi s th e
const itut ional period for deciding the same, tha t i t shall
be upon th e admi ssion of the evidence of the pa rt ie s.
Ho we ve r, i f th e t ria l court allows oral a r g u m e n t or
s u b m i s s i o n o f m e m o r a n d a , th e pe ri o d sh a l l b e
corre spondi ngl y e xtende d after such proceedings have
been conducted or such m e m ora nd a submi t te d. Since
ther e is a possibilit y tha t the m e m ora nd a may not be
received in the court simultaneousl y, the court should
specify in advance or declare after actual submission of
the m em ora nda or further pleadings the date when the
case is deemed submi tted for decision.
3. The order of trial provided for in Sec. 5 applies to a
regularl y controverted claim. Hence, if the answer a dm i t s
th e d e f e n da n t ' s obl i ga t i on a s al le ge d i n th e c om pl a i nt
bu t special defense s are invoked, plaintiff does not have
to present evidence since judicial admissions do
not
require proof (Sec. 2, Rule 129), and it should be

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SEC . 6

the defendant who should forthwith present his evidence


in support of his special defenses (Yu vs. Mapayo, L-29742,
Mar. 29, 1972).
4. Additional evidence may be offered at the rebuttal stage if it
was newly discovered, or omitted throu gh mistake or
inadvertence, or where the purpose is to correct evidence
previously offered (Lopez vs. Liboro, 81 Phil. 429), subject
to the discretion of the court.
5. A relat ed rule in American j uri sprude nc e on evidence at
the rebuttal stage was adopted by the Supreme Court in a
criminal case (People vs. Mazo, G.R. No. 136869, Oct. 17,
2001) which could very well apply in all other cases. The
holding is tha t evidence offered
in rebuttal is not
automatically excluded just because it would have been
more properly admitted in the case in chief. W h e t h e r
e vi de nc e could hav e been more p ro pe r l y admitted in the
case in chief is not a test of admissibility of evidence in
rebuttal. Thus, the fact that testimony might have been
useful and usable in the case in chief does not
necessarily preclude its use in rebuttal.
Sec. 6. Agreed statement of facts. The partie s
to any ac ti on ma y agree, in writi ng, upon the facts
i nvol ve d in the liti gati on, and submit the case for
j u d g me n t o n th e fac ts agree d upon , w i t h ou t th e
i ntroduc ti on of e vi de n c e .
If th e partie s agree only on some of the facts
in i ssue , the trial shall be held as to the di s pu te d
facts in suc h or de r as th e c our t shall pre scr i be .
(2a, R30)
NOTES
1.

This is known as a stipulation of facts and is among the


purposes of a pre-trial in civil cases (Sec. 2[d], Rule 18).
The parties may also stipulate verbally in open

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SE C S . 7, 8

c ourt . Suc h s t i p u l a t i o n s ar e bi n di n g unl e s s relief


therefrom is permitted by the court on good cause shown,
such as error or fraud (Ortua vs. Rodriguez, 63 Phil. 809).
But counsel cannot stipulat e on wha t their respective
evidence consists of and ask that judgm ent be rendered
on the basis of such stipulation (Arzadon vs. Arzadon, 15
Phil. 77).
2. . S t i p u l a t i o n s of fact s ar e no t p e r m i t t e d in actions
for a nnulm e nt of marria ge
(Art. 88, Civil Code; now,
Art. 48 Family Code) an d for le gal s e p a r a t i o n (Art.
101, Civil Code; now, Art. 60, Family Code). Formerl y,
in criminal cases, stipulations of facts were not permitted
(U.S. vs. Donato, 9 Phil. 701; People vs. Ordonio, [CA], 67
O.G. 4224).
See, however, Rule 118 which now permits
such sti pulati ons at the pre -trial conference.
Sec. 7. Statement of judge. Du r i n g
or trial of a cas e an y s t a t e me n t mad e by
h r e f e r e n c e t o th e case , o r t o an y o
w i t n e s s e s o r c ou ns e l , shall b e mad e o f
s t e n o g r a p h i c note s . (3a, R30)

th e he ar i n g
th e judg e wit
f th e par ti e s,
rec or d in th e

NOT E
1. This provision differs some wha t from tha t of
Sec. 17, Rule 136, the last pa ra gra p h whereof reads as
follows:
"Whenever requested by a party, any statement made
by a judge of first instance, or by a commissioner, with
reference to a case being tried by him, or to any of the
pa rtie s thereto, or to any witness or attorne y, during the
he a ri n g of such case, shall be mad e of record in the
stenographic notes."
Sec. 8. Suspension of actions. Th e s u s pe n s i o n
of a c t i on s shal l be g ov e r n e d by th e pr ov i s i on s of
th e Civil Code, (n)

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NOTES
1. Rule 21 of the former Rules, providing for the suspension of
action, has been eliminated in these revised Rules and,
instead, these provisions of the Civil Code have been
adopted for that purpose:
"Art. 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
(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 part y
refused the offer.
The duration and terms of the suspension of the
civil action or proceeding and similar matt ers shall
be governed by such provisions of the rules of court
as the Supreme Court shall promul gate. Said rules
of court shall likewise provide for the appointment
and duties of amicable compounders."
Sec. 9. Judge to receive evidence; delegation to clerk
of court. The judg e of the court w her e the case is
pe n di n g shall pe r s on all y rec e i ve the e vi de nc e to be
a d duc e d by th e par ti es. H ow eve r , in de fa ul ts or
ex parte he ar i ng s , and in any case whe r e the partie s
a g r e e i n w r i t i n g , th e c ou r t ma y d e l e g a t e th e
rec e pti on of evi de nc e to its cler k of court wh o is a
me mbe r of the bar. The clerk of court shall have
no pow e r to rule on obje cti ons to any qu e sti o n or
to the a d mi s si o n of e xhi bits, w hic h objec ti ons shall
be res ol ve d by th e court upo n s u b mi s s i o n of his
report and the tr anscri pts within ten (10) days from
te r mi nati on of the hear ing, (n)

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NOT E S
1. Under the 1964 Rules, where the defendant is in default,
some courts referred the matte r of the reception of the
evidence for the plaintiff to a commissioner, usually the
clerk of court or his deput y. In Laluan, et al. vs. Malpaya, et
al. (L-21231, July 30, 1975), it was held that the clerk of
court may be authorized to receive evidence subject to the
condition tha t if such proceedings and the decision the reon
prejudice the substa ntial rights of the aggrieved part y, the
latter should be given an opportunit y to thresh out his case
in court. However, the Suprem e Court subse que nt l y ruled
such practice as wrong and without basis in any rule, and
has required that, where the defendant had been declared
in default, the trial judge himself should take down the
evidence (Lim Tanhu vs. Ramolete, et al., L-40098, Aug. 29, 1975).
However, in Continental Bank vs. Tiangco, et al. (G.R. No.
50480, Dec. 14, 1979), it was held tha t the jud gm e nt based
on e vi d e nc e re c e i ve d b y th e d e p u t y c le r k o f c our t a s
com mi ssi one r i s valid whe r e i t wa s not i m pa i re d by
extrinsic fraud or lack of due process and the judgme nt
de bt ors had made pa rti a l pa ym e n t to satisfy it. The
Laluan case was adverted to and the doctrine the rein was
re iterated in National Housing Authority vs. CA, et al. (L50877, April 28, 1983), wherein the pa rtie s had agreed to
the appointm ent of a commissioner, and in Gochangco, et
al. vs. CFIofNegros Occ, et al. (L-49396, Jan . 15, 1988).
2. The p re s e n t provision is int e nde d to effect a
ra pproc hem e nt between the conflicting practices, having
in mind the need to relieve the judge of some of his judicial
functions whene ver the same can be safely e nt ruste d to a
responsible officer and with the necessary safeguards for
the int e re st s of the pa rti e s. The basic rule, of course,
remai ns tha t the judge must himself personally receive
and resolve the evidence of the pa rtie s.

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However, the reception of such evidence may be


delegated under the following conditions, viz.: (a) The
de le ga tion may be made only in default or ex parte
he a ri n gs, or on a gre e m e n t in writi ng by the pa rt ie s;
(b) The reception of evidence shall be made only by the
clerk of that court who is a member of the bar; (c) Said
clerk shall have no power to rule on objections to any
question or to the admission of evidence or exhibits; and
(d) He shall submit his report and t ra nsc ri pt s of the
proceedings, together with the objections to be resolved
by the court, within 10 days from the termination of the
hearing.

391

RULE 31
CO NSO LI DATIO N OR SE VERA NCE
S e c t i o n 1 . Consolidation. W he n a c t i o n s
i n v o l v i n g a c o m m o n q u e s t i o n of law or fact are
p e n d i n g be f or e th e c ou r t , i t ma y or de r a j oi n t
h e a r i n g or trial of an y or all th e ma tt e r s in i ssu e in
th e a c t i o n s ; i t ma y or de r al l th e a c t i o n s c on
s ol i date d ; an d i t ma y mak e suc h or de r s c o n c e r n i n g
p r o c e e d i n g s t h e r e i n a s ma y t e n d t o a v oi d
u n n e c e s s a r y c ost s or del ay. (1)
NOTES
1. The objects of consolidation, or the rationale of a joi n t
h e a r i n g a u t h o r i z e d b y Rule 31 , ar e t o a void multiplicity
of suits, guard against oppression or abuse, pre ve nt delay,
clear congested dockets, simplify the work of the trial
court and save unnecessary costs and expenses.
Consolidation seeks to attain justice with the least expense
and vexation to the litigants. The pre se nt tendenc y is to
permit consolidation whe ne ve r possible and irrespective
of th e di ve r si t y of th e i ssue s invol ved (Palanca vs.
Querubin, et al., L-29510-31, Nov. 29, 1969; Raymundo,
et al. vs. Felipe, L-30887, Dec. 24, 1971).
2..

The rule on consol i dat i on of cases ge ne ral l y applies


only to cases pending before the same judge, not to cases
pending in different bra nc hes of the same court or in
different courts (PAL, et al. vs. Teodoro, et al., 97 Phil.
461), and also applie s to special procee dings (Salazar
vs.
CFI
of Laguna, infra); bu t w h e n e v e r appropriate ,
and in the intere st of justice, consolidation of cases in
different branches of the same court or in different courts
can be effected. Consolidation of cases on appeal and
assigned to different divisions of the Supreme Court or the
Court of Appeals is also authorized, and generally
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O R SEVERANC E

SE C . 1

the case which was appealed later and bearing the higher
docket number is consolidated with the case having the
lower docket number.
3. As a rule, the consolidation of se veral cases i n vol vi n g th
e sam e p a r t i e s an d s u b j e c t - m a t t e r i s discretionary with
the trial court. However, consolidation of these cases
becomes a matter of duty if two or more cases are tried
before the same judge, or, if filed with different branches of
the same Court of First Instance, one of such cases has
not been partially tried (Raymundo, et al. vs. Felipe,
supra). Subject to the qualification in the latter case, it
would seem that the former doctrine that there is no time
beyond which no consolidation of cases can be effected
is still valid (see Sideco vs. Paredes,
74 Phil. 6).
4. The three ways of consolidating cases are (a) by recasting
the cases already instituted, conducting only one h e a r i n g
an d r e n d e r i n g onl y one de c i si on, (b) by consolidating
the existing cases and holding only one he a ri n g and
re nd e ri n g only one decision, and (c) by he a ri n g only the
principa l case and suspe ndi n g the hearing on the others
until judgment has been rendered in the principal case
(Salazar vs. CFI of Laguna, et al., 64 Phil.785).
5. Cases can be consolidated for purposes of a single appeal
therefrom and a single decision can be rendered thereon
(Sideco vs. Paredes, supra).
6. On considerations of judicial economy and for the
convenience of the parties, the Supreme Court can also
order the consolidation of cases involving substantially the
same parties and issues but which have been filed in
different courts of equal jurisdiction. Thus, where as a
consequence of a vehicular collision, a bus company filed
an action for damages against the other bus company in
the proper court in Quezon and the heirs of the deceased

393

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SE C . 2

passenger of one of the buses filed an action for dama ges


a ga i ns t both com pani es in Cavite whe re i n said heirs
we r e r e s i d e n t s , th e S u p r e m e Cour t o r d e r e d th e
consolidation of both cases in the Cavite court, instead of
requiring said heirs to intervene in the case in Quezon
(Superlines Trans. Co. vs. Victor, et al., G.R. No. 64250,
Sept. 30, 1983).
Under the same consideration, the same procedure
was followed where , as a consequence of a vehic ula r
collision, the passengers of the bus brought an action in
the the n Court of Fi rst Instance of Agusan del Sur on
culpa contractual, and the owner of the other vehicle sued
the bus company in Misamis Oriental. The Supreme Court
ordered the consolidation of both cases in the court of
Agusan del Sur, upon the further consideration tha t the
case filed the rein had already been pending prior to the
other action (Vallacar Transit, Inc., et al. vs. Yap, et al.,
G.R. No. 61308, Dec. 29, 1983).
Sec. 2. Separate trials. Th e c o u r t , in
f u r t h e r a n c e o f c o n v e n i e n c e o r t o avoi d pr eju di c e ,
ma y or de r a se par at e trial of an y clai m, c r os s-c lai m,
c o u n t e r c l a i m , or t hi r d- pa r t y c o mpl a i n t , or of an y
s e par at e i ssu e o r o f an y nu mbe r o f cl ai ms , c ross c l ai ms , c o u n t e r c l a i m s , t hi r d- pa r t y c o m p l a i n t s o r
i ssue s . (2a)
NOTES
1. When sepa rate trial of claims is conducted by the
court under this section, i t may render separate judgm ent s
on each claim (see Sec. 5, Rule 36).
2 . T hi s p r o vi s i o n p e r m i t t i n g s e p a r a t e t r i a l s
p r e s u p p o s e s tha t th e claims involved ar e within the
jurisdiction of the court. When one of the claims is not
within its jurisdiction, the same should be dismissed, so
tha t it may be filed in the proper court.

RULE 32
TRIAL BY COM MISSIONER
S e c t i o n 1. Reference by consent. By w r i t t e n
c on se n t of both par ti e s, the court may or de r an y or
all of th e i s s u e s in a cas e to be r e f e r r e d to a
c o mmi s si on e r to be agree d upo n by the par ti e s or
to be a p p o i n t e d by th e court. As use d in the s e
Rules, th e word "c ommi ssi one r " i ncl u de s a refe ree ,
an au di t or and an e xa mi ne r, (la , R33)
Sec. 2. Reference ordered on motion. When the par ti e
s d o no t c on se nt , th e c our t may, upo n th e a ppl i c ati on
of e i the r or of its ow n moti on, direct a refe renc e to a
c o mmi s si on e r in the foll ow ing cases:
(a) When th e trial of an issue of fact re qui re s the
e xa mi n at i o n of a long acc oun t on ei ther side, in
w hi c h case th e c o mmi s si on e r may be di rec te d to hear
and report upon the whole issue or any specific
qu e sti o n i nvol ve d the rei n;
(b) When the ta ki n g of an ac c oun t i s ne c e s sa r y for the
i nfor mati on of the court before j u dg me n t , or for
c arr yi ng a ju dg me n t or order into effect;
(c) When a qu e sti o n of fact, other tha n upon the
pl e adi ngs , ari se s upon moti on or ot herw i se , in any
stage of a case , or for c arr yi ng a ju dg me n t or or der
into effect. (2a, R33)
Sec. 3. Order of reference; powers of the commissioner.
Whe n a r e f e r e n c e i s ma d e , th e c l e r k s h a l l
for thw ith furnish the c ommi s si one r with a copy of
the or de r of reference. The order may specify or
limit the pow ers of the commi ssi oner, and may direct
him to report only upo n particular i ssue s, or to do
or per for m par ti cular acts, or to receive and report
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e v i de nc e only, and ma y fix th e dat e for be g i n n i n g


and c l os i n g th e he ar i ng s and for th e filing of his
report. Su bje ct to th e s pe c i fic ati ons and l i mi tati ons
state d in th e or der, the c o m mi s s i on e r ha s an d shall
e xe rci s e th e pow e r t o regul ate th e pr oc e e di n g s i n
ever y h e ar i n g before hi m and t o d o all act s an d take
all me a s u r e s n e c e s s a r y or pr ope r for th e effi cient
pe r f or ma n c e of hi s duti e s un de r th e or der. He ma y
i ssu e s u b p oe n a s and s u b p o e n a s duces tecum, sw e a r
w i t n e s s e s , an d u n l e s s o t h e r w i s e p r ov i de d i n th e
o r d e r o f r e f e r e n c e , h e ma y r ul e u p o n th e
a d m i s s i b i l i t y o f e v i d e n c e . Th e tr i a l o r h e a r i n g
before hi m shall pr oc e e d in all re s pe c t s as i t w oul d
i f hel d before th e court. (3a, R33)
NOTES
1..

I n th e p r o c e e d i n g s u n de r thi s se c ti on , th e
commissioner may rule upon the admissibility of evidence,
unless otherwise provided in the order of reference.
In
re cept ion of evidence before th e clerk of court unde r
the provisions of Sec. 9, Rule 30, the clerk does not have
tha t power and he shall just receive the evidence subject
to the objections interposed the reto and such questions or
objections shall be resolved by the court after the clerk has
submitte d his report to it.

2. What Sec. 3 authorizes to be limited is the scope of th e


proc ee di ngs before th e com mi ssi one r, not the modality
thereof. The order of reference may direct the commissioner
to perform different acts in and for purposes
of the
proceedings but, what e ve r may be the case, the
re quirem ent for him to hold a hearing cannot be dispensed
with as this is the essence of due process (Aljem's Corp.,
etc. vs. CA, et al., G.R. No. 122216, Mar. 28, 2001).
Sec. 4. Oath of commissioner. Before e n te r i n g upo
n hi s du ti e s th e c o m mi s s i o n e r shal l b e sw or n

396

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SE C S . 5- 9

t o a f ai t h f u l an d h o n e s t p e r f o r m a n c e t he re of .
(14, R33)
Sec. 5. Proceedings before commissioner.
Upon
r e c e i p t o f th e or de r o f r e f e r e n c e an d u n l e s s
ot he r w i s e pr ovi de d the rei n , the c o mmi s si on e r shall
for thw ith set a ti me and place for the first me e ti n g
of the par ti e s or thei r c ounse l to be held w i thi n ten
(10) day s after the date of the or der of refe rence and shall
notify th e par ti e s or their c ou nse l . (5a, R33)
Sec.
6. Failure of parties to appear before
commissioner. If a party fails to appe ar at the ti me
and place appoi nte d, the c ommi ssi one r may pr oce e d
ex parte or , in hi s d i s c r e t i o n , a d j o u r n th e
pr oc e e di n g s to a future day, gi vi n g notice to th e
abse n t part y o r hi s c ou n s e l o f th e a dj ou r n me nt .
(6a, R33)
Sec. 7. Refusal of witness. Th e refusa l of a
w i t n e s s t o o be y a s u b p o e n a i s s u e d b y th e
c o mmi s si on e r or to give evi de nc e before hi m, shall
be de e me d a c onte mp t of the court whic h appoi nte d
the c o mmi s si on e r . (7a, R33)
Sec. 8. Commissioner shall avoid delays. It is
the duty of the c o mmi s si on e r to pr oc e e d with all
r ea s on a bl e di l i ge nc e . Eithe r party, on notic e to
the par ti e s and c o mmi s s i o n e r , ma y apply t o th e
court for an or der requi r i ng the c ommi s si one r to
e xpe di te the pr oc e e di n g s and to make his report.
(8a, R33)
Sec. 9. Report of commissioner. U po n th e
c o mpl e ti o n of the trial or he ar i n g or pr oc e e di n g
before the c ommi ssi one r, he shall file with the court
his report in w ri ti ng upo n the matte rs submi tte d to

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hi m by th e or der of refe renc e . Whe n hi s pow e r s


are not s pe c i fie d or l i mi te d, he shall set forth his
fi n di ngs of fact an d c on c l u s i on s of law in his report.
H e shal l a t t a c h t h e r e t o all e x h i b i t s , a f f i d a v i t s ,
d e p os i t i on s , pa pe r s and th e tr an scr i pt, i f any, of the
te sti moni al e vi de n c e pr ese nte d before him. (9a, R33)
Sec. 10. Notice to parties of the filing of report.
Upo n th e filing of th e repor t, th e par ti e s shall be
noti fi e d by th e cler k, an d the y shall be al l ow e d ten
(10 ) da y s w i t h i n w h i c h t o s i g n i f y g r o u n d s o f
obj e c ti o n to th e fi n di ng s of th e re por t, i f the y so
de sire. O bje cti ons to the report base d upo n ground s
w h i c h w er e a v a i l a b l e t o th e p a r t i e s d u r i n g th e
p r oc e e di n g s be fore th e c o m mi s s i o n e r , othe r tha n
obj e c ti on s t o th e fi n di ng s an d c o n c l u s i o n s th e r ei n
set forth, shall not be c o n s i de r e d by th e cour t unl e s s
the y wer e ma d e before th e c o mmi s s i o n e r . (10, R33)
Sec . 11. Hearing upon report. U p o n th e e x pi r a t i o
n o f th e pe r i o d o f t e n (10) day s refer re d t o in th e
p r e c e di n g se c ti on , th e repor t shal l be se t for he ar i ng
, after w hi c h th e c our t shal l i ssu e a n or der a d o p t i n g
, m o d i f y i n g , o r r e j e c t i n g th e r e p or t i n w h o l e o r i n
part , o r r e c o m m i t t i n g i t wit h i nstr uc ti ons , o r
r e q u i r i n g th e pa r t i e s t o p r e s e n t fur the r e v i d e n c e
be fore th e c o m mi s s i o n e r o r th e c our t. (11a, R33)
Sec. 12. Stipulations as to findings. Whe n the
par ti e s s t i p u l a t e tha t a c o m mi s s i on e r ' s fi n di ng s of
fac t sh al l b e fi nal , onl y q u e s t i o n s o f la w shal l
th e r ea ft e r be c o n s i de r e d . (12a, R33)
Sec . 13. Compensation of commissioner. Th e
C o u r t s h a l l a l l o w th e c o m m i s s i o n e r s u c h
r e a s on a b l e c o m p e n s a t i o n a s th e c i r c u ms t a n c e s o f

RUL E

32

TRIA L B Y C O M M I S S I O N E R

SE C . 13

the case w arrant, to be taxe d as costs agai ns t the


de fe ate d party, or appor ti one d, as justi ce requi res.
(13, R33)
NOT E S
1.When the commissioner did not hold a hearing in violation
of Sec. 3 of this Rule, it is error for the trial court to issue an
order approving said commissioner's report over the
objection of the aggrieved party (Jaca vs. Davao Lumber Co.,
et al, L-25771, Mar. 29, 1982).
2.. It should also be noted, in passing, tha t the former
Rule 32 which provided for trial with assessors has not been
reproduced in the present revision of the Rules.

399

RULE 33
DEMURRER TO EV IDEN CE
Sec. 1. Demurrer to evidence.After the plaintiff
ha s c o mp l e t e d th e p r e s e n t a t i o n o f hi s e v i de n c e , the
d e f e n da n t ma y mov e for di s mi ss a l o n th e groun d
tha t upo n th e fac ts an d th e law th e pl ai nti ff ha s
s h ow n no right to relief. I f hi s moti o n i s de nie d , he
shal l hav e th e r i gh t t o p r e s e n t e v i d e n c e . I f hi s
m o t i o n i s g r a n t e d bu t o n a p p e a l th e or de r o f
d i s mi s s a l i s r ev e r s e d h e shal l b e de e me d t o hav e
w ai ve d th e ri ght t o pr e s e n t e v i de n c e , (la , R35)
NO TES
1. A de m urre r to evidence is a motion to dismiss on the ground
of insufficiency of evidence and is presented after the
plaintiff rests his case. It thu s differs from a motion to
dismiss under Rule 16 which is grounded on preliminary
objections and is pre se nte d at the outset of the case, i.e.,
generall y, before a responsive pleading is filed by the
movant and within the period for the filing thereof.
See
Note 1 under Sec. 1, Rule 16.
2. . In th e l a n g u a g e of th e S u p r e m e C ou rt , a
de m u r r e r to evidence may be issued where , upon the
facts and the law, the plaintiff has shown no right to relief.
W he r e th e p l a i n t i f f s e vi d e nc e t o ge t h e r wit h suc h
inferences and conclusions as may reasonably be drawn
t h e r e f r o m doe s no t w a r r a n t r e c o ve r y a ga i n s t
th e defendant, a de m ur re r to evidence should be
sustained. A de m u rre r to evidence is likewise sust ai na bl
e when, admit ting every proven fact favorable to the
plaintiff and i n d u l g i n g i n hi s fa vo r al l c o n c l u s i o n s
fa i rl y an d re asonabl y inferable therefrom, the plaintiff
has failed to make out one or more of the ma te ri al
eleme nts of his case, or when there is no evidence to
support an allegation
400

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33

DE M URR E R T O E VI DE NC E

SE C . 1

necessary to his claim. It should be sustained where the


pl a i nt i ff s evidenc e is prima facie insufficient for a
recovery ( Heirs of Emilio Santioque vs. Heirs of Emilio
Calma, G.R. No. 160832, Oct. 27, 2006).
3. . De fe n da nt s who p r e s e n t a d e m u r re r to th e
plaintiffs evidence retain the right to present their own
evidence, if the trial court disagrees with them; if the trial
court agrees with them, but on appeal, the appellate court
disagrees with both of them and reverses the dismissal
order, the defendants lose the right to present their own
evidence. The appellate court shall, in addition, resolve
the case and render judgment on the merits, inasmuch as a
de murre r aims to discourage prolonged litigations. I t
c a nno t re m a n d th e case for furt he r p roc e e di n g s
(Radiowealth Finance Co. vs. Del Rosario, et al., G.R. No.
138739, July 6, 2000).
4. If an order of dismissal under this Rule is reversed on
appeal, the decision of the appellate court will be based only
on the evidence of the plaintiff as the defendant loses his
right to have the case remanded for reception of his
evidence (see Siayngco vs. Costibolo, L-22506, Feb. 28,
1969).
5. Where the defendant 's motion is sustained and the case is
dismissed under this Rule, such order would be an
adjudication on the merits, hence the requirement in Sec.
1, Rule 36 that said judgment should state clearly and
distinctly the facts and the law on which it is based, should
be complied with.
Where, however, the dem urrer is
denied, the denial order is interlocutory in nature, hence
Sec. 1, Rule 36 has no application (Nepomuceno, et al. vs.
Commission on Elections, et al., G.R. No. 60601, Dec. 29,
1983). Such denial order is not controllable by certiorari,
a bse n t an oppre ssi ve exercise of judicial a u t h o r i t y
(Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 23,
1985; David, et al. vs. Rivera, G.R. Nos. 139913 and
140159, Jan. 16, 2004).
401

RUL E 3 3

R E M E D I A L LA W C O M P E N D I U M

SE C . 1

6. . For the
c ounte rpa rt bu t contrary features in
cri mi na l cases, see Sec. 23 , Rule 119 and th e notes
the reunde r.

RULE 34
JUDGM E NT ON THE PLEADINGS
Sec ti o n 1. Judgment on the pleadings. Where
a n a n sw e r fails t o te n de r a n i ssue , o r ot h e r w i s e
a d mi t s th e m a t e r i a l a l l e g a t i o n s o f th e a d v e r s e
party' s pl e adi ng, the c our t may, on moti on of that
party, direct ju dg me n t on suc h ple adi ng. H ow eve r,
in ac ti ons for de c l ar ati on of nulli ty or a n n u l me n t
of mar r i ag e or for le gal s e par ati on , th e ma te ri al
fac t s a l l e g e d i n th e c o m p l a i n t shal l a l w a y s b e
prove d, (la , R19)
NOTES
1. A judgment on the pleadings presupposes that there is no
controverted issue whatsoever between the pa rti e s , hence
th e plaintiff i s also a ssume d to have a d m i t t e d all th e
r e l e v a n t a l l e g a t i o n s of fact of the defendant in his
answer (Evangelista vs. De la Rosa,
76 Phil. 115; Mercy's, Inc. vs. Verde, L-21571, Sept. 29,
1966). The judgment is, therefore, based exclusively upon
the allegations appearing in the pleadings of the parties
and the annexes thereto, if any, without consideration
of any evidence aliunde (see Rodriguez vs. Llorente,
49 Phil. 823).
2. The plaintiff, by moving for judgm ent on the pleadings, is
not deemed to have admit ted irrelevant allegations in the
defendant's answer (Araneta vs. Perez, L-20787-8, June 29,
1965); ne i t he r
is
the
defendant deemed to have
a dmi t te d alle gati ons of da m a ge s in the complaint
(Abubakar Tan vs. Tian Ho, L-18820, Dec. 29, 1962;
Delfin vs. CAR, L-23348, Mar. 14, 1967),
hence there can be no award of damages in said judgment
in the absence of proof (Lichauco vs. Guash, 76 Phil. 5).

403

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34

REMEDIA L

LA W C O M P E N D I U M

8EC. 1

3. Under this Rule, a judgme nt on the pleadings must be on


motion of the claimant. However, if at the pre-trial, the
court finds tha t a judgme nt on the pleadings is proper, it
may re nde r such jud gm e n t motu proprio (Sec. 2[g],
Rule 18).
4. The trial court may render a j udgm e nt on the pleadings if,
after the pre -trial, the facts w a r ra n t such a j u d g m e n t
(Taleon vs. Sec. of Public Works & Communications,
L-24281,
May 19, 1967).
5. . Distinctions between judgme nt on
sum ma r y j udgm e nt (Rule 35):

the pleadings and

a . J u d gm e n t on the pl eadi ngs is proper whe n i t appears that


there is no genuine issue between the parties; a summ a r y
jud gm e nt is proper even if there is an issue as to dama ges
recoverable.
b. J u d gm e n t on the pleadings is based exclusively upon the
pleadings without int roduct ion of evidence; a sum ma r y
j udgm e nt is based not only on the pleadings but also upon
the affidavits, depositions and admissions of the parties
showing that, except as to the am ount of dama ges, there is
no genuine issue.
c . J u d gm e n t on the pleadings is available in any action,
except for declaration of nullit y or a n nu l m e n t of marria ge
and legal separation; a sum ma r y judgm ent is proper only in
actions to recover a debt, or for a liquidated sum of money,
or for declaratory relief.
d. A motion for judgm ent on the pleadings is subject only to the
3-day notice rule (Sec. 4, Rule 15) and where all the
m at e ria l a ve rm e nt s of the complaint are admitted, such
motion may even be made ex parte (Cruz vs. Oppen, L-23861,
Feb. 17, 1968); a motion for summ a r y judgm ent require s prior
10-day notice (Sec. 3, Rule 35). See also Narra Integrated
Corp. vs. CA, et al. (G.R. No. 137915, Nov. 15, 2000).

RUL E

34

JUDGMEN T O N

TH E P L E A D I N G S

SE C . 1

6. .
J u d g m e n t s on th e pl e a di n g s and s u m m a r y
judgments are also to be distinguished from judgments by
default. It will be observed tha t in default judgm ent
(a) ge nui n e i ssue s of fact and/or law are norm a ll y
involved; (b) evidence must be introduced on the material
allegations, albeit ex parte, except in cases covered by the
rule on summary procedure; (c) all cases may be subject
to judgments by default, except those for annulment or
declaration of nullity of marriage or legal separation; and
(d) motions for default judgments may be filed ex parte,
except under the rule on summa ry procedure wherein
upon failure of defendant to answer, the court, motu
proprio or on p l a i n t i f f s mot i on, sha l l r e n d e r th e
corresponding judgment.
7. As provided in Sec. 1 of this Rule, a judgment on the
pleadings is not allowed in actions for declaration of nullity
or annulme nt of marriage or for legal separation. The same
prohibition applies to a summar y judgment (see Note 2
under Secs. 1 and 2, Rule 35). For that matter, an orde r of
de fa ul t an d a j u d gm e n t by de fa ult ar e proscribed in
actions for declaration of nullity of marriage or for legal
separation (Sec. 3[eJ, Rule 9). The foregoing prohibitions are
based on and expressive of the concern and p rot e c t i o n
e xte nde d by th e St a t e to the social institution of
marriage.
This protective policy on the marital vinculum is now
further enhanced by special procedural rules on actions
involving the validity of marriage or for legal separation
of th e s p o u s e s . On Ma rc h 4 , 2003 , an d effecti ve
Marc h 15, 2003 , th e Su pr e m e Court a pprove d and
p r o m u l ga t e d in A.M. No. 02-11-10-SC th e Rule on
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (Appendix AA) and, in
A.M. No. 02-11-11-SC, the Rule on Legal Sepa rati on
(Appendix BB).

405

RU L E 3 5
SU M M AR Y J U D G M E N T S
S e c t i o n 1. Summary judgment for claimant. A
part y se e k i n g t o rec o ve r upo n a claim ,
count e rc l ai m , o r cross-clai m o r t o obtai n a
d e c l a r a t o r y re l i e f ma y , a t an y ti m e a fte r th e
p l e a d i n g i n a n s w e r t h e r e t o ha s be e n s e r ve d , mov e
wit h s u p p o r t i n g a ffi da vi t s , d e p o s i t i o n s o r
a d m i s s i o n s for a s u m m a r y j u d g m e n t i n hi s fa vo r
up o n al l o r an y pa r t the re of , (l a , R34 )
Sec . 2. Summary judgment for defending party.
A pa rt y a ga i n s t who m a claim , c o u n t e r c l a i m , o r
c r o s s - c l a i m i s a s s e r t e d o r a d e c l a r a t o r y re l i e f i s
s o u g h t m a y , a t an y t i m e , m o v e w i t h s u p p o r t i n g
a ffi da vi t s , d e p o s i t i o n s o r a d m i s s i o n s for a s u m m a r y
j u d g m e n t i n hi s fa vo r a s t o al l o r an y p a r t t he re of .
(2a, R34 )
N OT E S
1. . For di s t i nc t i on s be t wee n a j u d gm e n t on the
pleadings and a sum ma r y judgme nt, see the notes under
Sec. 1, Rule 34.
2. While the Rule does not specifically so provide, a s um m a r y
j u d gm e n t is not proper in an action for the a n nu l m e n t or
declaration of nullity of a marria ge (and also in legal
sepa rati on), just as in the case of a judgme nt on th e
pl eadi ngs, as this Rule refers to an action "to recover upon
a claim," etc., tha t is, to recover a debt or a liquidated
de mand for money
(Roque vs. Encarnacion, et al., 95
Phil. 43). Summ a r y judgm ent s,
however, are made
specifically applicable to the special civil action for
declaratory relief (Rule 63).

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35

SUMMAR Y

JUDGMENT S

SEC . 3

3. The provisions of this Rule have been amended to allow


the parties to submit not only affidavits but also depositions
or admissions in support of their respective contentions.
Sec. 3. Motion and proceedings thereon. Th e
m o t i o n shal l b e se r ve d a t leas t te n (10) da y s
be fore th e t im e sp e c i fi e d for th e h e a r i n g . Th e
a d v e r s e pa r t y ma y se r v e o p p o s i n g a ffi da vi t s,
d e p o s i t i o n s , o r a d m i s s i o n s a t le a s t t h r e e (3) da y s
be for e th e h e a r i n g . After th e h e a r i n g , th e j u d g m e n t
s o u gh t s h a l l b e r e n d e r e d f o r t h w i t h i f th e
p l e a d i n g s , s u p p o r t i n g a ffi da vi t s, de p o s i t i o n s , an d
a d m i s s i o n s o n fi le, s ho w t h a t , e x c e p t a s t o th e
a m o u n t o f d a m a g e s , th e r e i s n o g e n u i n e issu e a s t
o an y m a t e r i a l fact an d t ha t th e m o vi n g pa r t y i s
e n t i t l e d to a j u d g m e n t as a m a t t e r of law. (3a, R34)
NOTE S
1. Summary judgment is proper only when there is clearly no
genuine issue as to any material fact in the action, and if
there is any question or controversy upon any question of
fact, there should be a trial on the merits (Agcanas vs.
Nagum, L-20707, Mar. 30, 1970; Solidbank Corp. vs. CA, et
al., G.R. No. 120010, Oct. 3, 2002).
2. In a motion for summary judgment, the crucial question is
whether the issues raised in the pleadings are either
genuine, sham or fictitious, as shown by affidavits,
depositions, or admissions accompanying the motion.
A genuine issue means an issue of fact which calls
for the presentation of evidence, as distinguished from
an i ssue which is fictitious or cont ri ve d so as not
to constitute a genuine issue for trial (Manufacturers
Hanover Trust Co., et al. vs. Guerrero, G.R. No. 136804,
Feb. 19, 2003).

RUL E

36

R E M E D I A L LA W C O M P E N D I U M

SE C . 4

3. . Su m m a r y j ud gm e n t i s not prope r wher e the


defendant pre se nt e d defenses te nde ri n g factual issues
which call for the presentati on of evidence (Villanueva vs.
NAMARCO, L-27441, June 30, 1969; Guevarra, et al. vs. CA,
et al., L-49017 and L-49024, Aug. 30, 1983; R&B
Surety & Insurance Co., et al. vs. Savellano, et al., L-45234,
May 8, 1985), as where the defendant specifically denied
th e m a t e r i a l al le ga ti ons in th e c o m pl a i n t (Tamo vs.
Gironella, et al., L-41714, Oct. 29, 1976). Fu rt he rm ore ,
the r e mus t be a motion for summ a r y jud gm e n t and a
he a ri n g of said motion, th e non -obse r va nce of which
procedural requi reme nts wa rra nt s the setting aside of the
summ a r y j udgm e nt (Cadirao, et al. vs. Estenzo, L-42408,
Sept. 21, 1984).
4. The test for the propriety of a motion for summary judgm ent
is whe t he r the pleadings, affidavits and exhibits in support
of the motion are sufficient to overcome the opposing papers
and to justify the finding that, as a matt er of law, there is no
defense to the action or the claim is clearl y m e r i t o r i o u s
(Estrada vs. Consolacion, et al., L-40948, June 29, 1976).
5. Where the motion for summ a r y judgm ent is duly verified
and is based on facts a dmi t te d by the adverse part y, eit her
expressl y or impliedl y, affidavits on such m at t e r s need not
be submitte d (Motor Service Co. vs. Yellow Taxicab Co.,
96 Phil. 688).
6. An accounting order in a sum ma r y j udgm e nt is of an
interlocutory nat ure and is not appealable (Talastas vs.
Abella, L-26398, Oct. 25, 1968).
7. Under Sec. 3 of this Rule, sum ma r y j udgm e nt may not be
re ndere d on the amount of dama ges, although such
j udgm e nt may be entere d on the issue of the right to
da ma ge s. Thereafter, the court may proceed to assess
the amount recoverable (Jugador vs. he Vera, 94 Phil.
704). Also, the court cannot impose attorne y' s fees in a

408

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35

SUMMAR Y

JUDGMENT S

SE C . 4

summ a r y j udgm e n t in the absence of proof as to the


amount thereof (Warner, Barnes & Co. vs. Luzon Surety
Co., 95 Phil. 924).
8. In case of doubt as to the propriety of a summary judgment,
the doubt shall be resolved against the moving part y. The
court should take that view of evidence most favorable to
the party against whom it is directed and give t ha t p a r t y
th e be ne fit of all fa vora ble i n fe re nc e s (Gatchalian vs.
Pavillin, et al, L-17619, Oct. 31, 1962).
9. Mere denials, unaccompanied by any fact which would be
admissible in evidence at a hearing, are not sufficient to
raise a genuine issue of fact sufficient to defeat a motion
for summa ry judgment [Plantadosi vs. Loew's Inc., 7 Fed.
Rules Service, 786, June 2, 1943] even though such issue
was formally raised by the pleadings [Fletcher vs. Krise, 4
Fed. Rules Service, 765, Mar. 3, 1941]. Where all the facts
are within the judicial knowledge of the court, summary
judgment may be granted as a matter of right [Fletcher vs.
Evening Newspaper Co., 3 Fed. Rules Service, 539,
June
28, 1940] (Miranda vs. Malate Garage &
Taxicab, Inc., 99 Phil. 670).
Sec. 4. Case not fully adjudicated on motion.
I f o n m ot i o n u n de r thi s Rul e , j u d g m e n t i s no t
ren de re d upo n the w hol e case or for all the reliefs
s oug h t and a trial i s n e c e ss ar y , the court at the
he ar i n g of the moti on, by e xa mi ni n g the pl e adi ngs
and th e e v i de n c e before i t and by i n te r r og a t i n g
c ounse l shall a sc e r t ai n wha t mate r i al facts e xist
w i t h o u t s u b s t a n t i a l c o n t r o v e r s y an d w ha t are
ac tual ly and in good faith c ontr ove r te d. It shall
t he re u p o n ma ke an or der spe cifyi ng the facts that
appear w ith ou t su bstanti al contr ove rsy, i nc l udi ng
th e e x t e n t t o w h i c h th e a m o u n t o f d a m a g e s
or other relief is not in c ontrover sy, and di rec ti ng
suc h f u r t h e r p r o c e e d i n g s i n th e ac t i o n a s
are

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35

R E M E D I A L LA W C O M P E N D I U M

SE C S . 5-6

j u s t . Th e f ac t s s o s p e c i f i e d s h a l l b e d e e m e d
e s t a bl i s h e d , an d th e trial shal l b e c on d u c t e d o n the
c o n t r ov e r t e d facts ac c or di ngl y. (4a, R34)
NOT E
1. While Sec. 4 of this Rule authorizes the rendition
of a p a r t i a l s u m m a r y j u d g m e n t , suc h j u d g m e n t i s
interlocutory in na ture and is not a final and appealable
jud gm e nt . The appeal from the pa rt ia l and appealable
jud gm e nt should be ta ken together with the judgm ent in
the entire case after the trial shall have been conducted
on the m at e ria l facts on which a subst ant ial controversy
exi st s (Guevarra, et al. vs. CA, et al., L-49017 and L49024, Aug. 30, 1983).
Sec . 5. Form of affidavits and supporting papers.
S u p p or t i n g an d o pp os i n g affi davi ts shall be mad e o n
pe r s on a l k n o w l e d g e , shall set forth suc h facts a s
w oul d b e a d mi s s i bl e i n e v i de n c e , an d shal l sho w
affi r mati ve ly tha t th e affiant i s c o m pe t e n t t o te stify
t o th e ma tt e r s state d th e r ei n . Certifie d tru e c opi e
s o f all pa p e r s o r par t s t h e r e o f re fe r re d t o i n th e
af fi dav i t shal l b e a t t a c h e d t h e re t o o r serve d
t h e r ew i t h . (5a, R34)
Sec . 6. Affidavits in bad faith. Sh oul d it appe a r
t o it s s a t i s f a c t i o n a t an y ti m e t h a t an y o f th e
a f f i d a v i t s p r e s e n t e d p u r s u a n t t o thi s Rul e ar e
pr e s e n t e d in bad faith, or sol e l y for th e pu r p os e of
de l ay , th e cour t shal l f or t hw i t h or der th e off e n di n g
par t y o r c o u n s e l t o pa y t o th e o t h e r par t y th e
a mou n t o f th e r e a s on a b l e e x p e n s e s w hi c h th e
filing o f th e a f fi da v i t s c a u s e d hi m t o i nc ur , i n c l u d i n
g a t t o r n e y ' s fe e s . I t may , afte r h e a r i n g , f u r t h e r
a dju dg e th e of f e n di n g part y o r c o u n s e l guil t y o f
c on t e mp t . (6a, R34 )

410

RUL E

35

S E C S . 5- 6

NOT E
1. The sanctions for violations of the provisions of
these sections shall be imposed not only on the offending
party but also upon his counsel. The contumacious conduct
contem plat ed herein are in the na t ur e of indirect or
constructive contempt, hence the same shall be punished
only after hearing, pursuant to Sec. 3 of Rule 71 .

RULE 36
J U D G M E N T S , FINAL ORDERS
AN D ENTRY TH EREO F
S e c t i o n 1. Rendition of judgments and final
orders. A j u d g m e n t or final or de r d e t e r mi n i n g
th e me r i t s of th e cas e shall be in w r i ti n g pe r s on al l y
an d di rec tl y pre pare d b y th e ju dge , st at i n g cle arly
an d d i s t i n c t l y th e fac ts an d th e law o n w hi c h i t
i s base d , si gn e d b y hi m , an d filed wit h th e cler k
of court, (la )
NOTES
1. The decision of the court is the entire document p r e p a r e d
an d p r o m u l g a t e d b y it, a d j u d i c a t i n g an d de t e rm i n i n g
th e ri ght s of th e pa rti e s to th e case. I t contains the
findings of fact and law, the rea sons and evidence to support
such findings, as well as the discussion of issues leading up
to its de te rm i na t i on. The dispositive or decretal portion
or the fallo is what actually constitutes the jud gm e nt or
resolution of the court and which can be the subject of
execution, although the other pa rt s of the decision may be
resorted to in order to de term ine the ratio decidendi for such
jud gm e nt or resolution.
2. Where the re is a conflict between the dispositive portion of
the decision and the body thereof, the dispositive portion
controls irrespective of what appe a rs in the body of the
decision. However, an exception is recognized where the
inevitable conclusion from the findings of fact in the
opinion is so indubitable and clear as to show that there was
a mistake in the dispositive portion (Aguirre, et al. vs.
Aguirre, et al., L-33080, Aug. 15, 1974), or where explicit
discussion and set tleme nt of the issue is found in the body
of the decision (Millare vs. Millare, 106 Phil.

412

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SEC .

293; Chung, et al. vs. China National Cereals, etc., Corp.,


et al., G.R. No. 131502, June 8, 2000).
But 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 (Contreras vs. Felix, 78 Phil. 570; Edward vs.
Arce, 98 Phil. 688; Olac, et al. vs. CA, et al., G.R.
No. 89256, Sept. 2, 1992).
3. The special forms of judgments under the Rules and
jurisprudence are:
a. Jud gme nt by default (Sec. 3, Rule 9);
b. Judgment on the pleadings (Rule 34);
c. Summary judgment (Rule 35);
d. Several judgment (Sec. 4, Rule 36);
e. Separate judgment (Sec. 5, Rule 36);
f.

Jud gme nt for specific acts (Sec. 10, Rule 39);

g. Special judgment (Sec. 11, Rule 39);


h. Jud gme nt upon confession;
i.

J udgm e n t upon compromise, or on consent or


agreement;

j.

"Clarificatory" judgment; and

k.

Judgme nt nunc pro tunc.

4. Judgme nt s upon confession or upon compromise stand on


the same footing in the sense that they cannot be
entered into by counsel without the knowledge and special
authorit y of the client (Manufacturers Bank & Trust Co.
vs. Woodworks, Inc., L-29453, Dec. 28, 1970). Both are
imme diate l y executory (Samonte, et al. vs. Samonte, et al.,
L-40683, June 27, 1975), unless otherwise

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provided in the judgment, as may be pra yed for or agreed


upon by the pa rti e s fsee Vda. de Corpus vs. PhodacaAmbrosio, L-30206, Mar. 30, 1970). See also Art. 2032,
Civil Code, re qui ri ng court approva l for compromises
e n t e re d into by p a r e nt s , gu a r d i a n s , r e p r e s e nt a t i ve s ,
a dmi ni st rat ors, and executors; and Art. 1878(3) of said
Code which provides tha t a third person ca nnot bind
a not he r to a compromise a gre em e nt unless such third
person has obtained a special power of attorne y for that
purpose from the part y to be bound.
However, a judgm ent on consent is not to be fully
equate d with a jud gm e nt by confession. The former is
one the provisions and te rm s of which are settled and
agreed upon by the pa rtie s to the action, and which is
entere d in the record by the consent of the court. There
must be unqualified a greem ent among the pa rtie s to be
bound by the jud gm e nt on consent before said judgm ent
may be so entere d and the court does not have the power
t o suppl y t e r m s , p ro vi s i o n s or e s s e n t i a l de t ai l s not
previousl y agreed to by the pa rtie s. On the other hand, a
j udgm e nt by confession is not a plea but an affirmative
and volunta ry act of the defendant himself and the court
exercises a certain am ount of supervision over the entry
of judgme nt, as well as equitable jurisdiction over their
subse quent st a t u s (Republic vs. Bisaya Land Trans. Co.,
Inc., et al., L 31490, Jan. 6, 1978).
5. As a rul e , a j u d g m e n t upo n c o m p r om i s e is im me di at e l y
exec utory (Pamintuan vs. Muhos, et al., L-26331, Mar. 15,
1968; Central Bank vs. CA, et al., L-38224, Dec. 10, 1974;
Pasay City Gov't, et al. vs. CFI of Manila, et al, L 32162,
Sept. 28, 1984) in the absence of a motion to set the same
aside on the ground of fraud, mistake, etc. (Cadano vs.
Cadano, L-34998, Jan. 11, 1973; Zagala, et al. vs. Jimenez, et
al, L 33050, July 23, 1987), and if such motion is made and
denied, appeal may be ta ken from tha t order of denial
(De los Reyes vs. Ugarte,
75 Phil. 505; Enriquez vs. Padilla, 77 Phil. 373).
In
414

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Mabale, et al. vs. Apalisok, et al. (L-46942, Feb. 6, 1979),


the Supreme Court held that to be entitled to appeal from
a judgment on compromise, a party must not only move to
set aside the judgment but must also move to set aside or
annu l the compromise agreement itself. A jud gm e n t
rende red pursua n t to a compromise is not appealable
(Montejo vs. Urotia, L-27187, July 22, 1971) and has the
effect of res judicata from the moment it is rende red
(Dormitorio vs. Fernandez, et al., L-25889, Aug. 21, 1976;
Arcenas, et al. vs. Cinco, L-29288, Nov. 29, 1976). Where
a compromise agreement of the litigants is not contrary to
law, judicial decisions, morals, good customs or public
policy, the court cannot impose a judgment different from
the terms of said agreement (PCIB vs. Echiverri, L-41795,
Aug. 20, 1980).
6. In a case, it was held that where a judgment based on a
compromise is sought to be enforced against a person who
was not a party thereto, he may file an original petition for
certiorari to quash the writ of execution. He could not move
to have the compromise set aside and then appeal from the
order denying his motion since he is not a party to the
compromise or the judgment therein. A petition for relief
would be an inadequate remedy as the execution was
already being carried out (Jacinto vs. Montesa, L-23098,
Feb. 28, 1967).
7. A compromise agreement, once approved by the court, has
the force of res judicata between the parties and should
not be disturbed except for vices of consent or forgery (see
Arts. 2037 and 2038, Civil Code). No decree of legal
separation can be granted if based exclusively on a
confession of jud gm e nt (Art. 101, Civil Code, now, Art.
60, Family Code; Ocampo vs. Florenciano, 107 Phil. 35).
The same rule applies to actions for annulment of marriage
(Art. 88, Civil Code; now, Art. 48, Family Code).
8. While a j u d gm e n t upon confession may be rendered
when the defendant appears in court or files a

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pleading expressly agreeing to the pl aint iffs demand, i t


has been held tha t there is no law in this jurisdiction which
recognizes a j udgm e nt note, tha t is, a promissory note
where in the make r authorizes in advance, on wa rra n t of
attorne y, a confession of j udgm e nt a ga i nst him in the
event of non-pa yment of the note on its mat uri t y. This is
considered void as being contrary to public policy, since
the promissor ba rgai ns away his day in court and this
mi ght be a source of abuse and oppression (PNB vs.
Manila Oil Refining, etc. & Co., 43 Phil. 444).
9. A j udgm e nt nunc pro tunc (literally, "now for then") is
re ndere d to ente r or record such judgme nt as had been
formerly re ndere d but has not been entere d as thu s
re ndere d. Its only function is to record some act of the
court which was done at a former time, but which was not
the n recorded, in order to make the record speak the truth,
without any changes in substance or in any material respect
(Lichauco vs. Tan Pho, 51 Phil. 862; Henderson vs. Tan,
87 Phil. 466).
10. The object of a jud gm e nt nunc pro tunc is not the
rendition of a new j udgm e nt and the a sc e rt a i nm e nt and
de t e rm i nat i on of new ri ght s, but is one placing in proper
form on the record the jud gm e nt tha t has been pre vi ousl y
re n de re d , to mak e i t spea k the t r ut h and there by show
wha t the judicial action really was. I t may not be availed
of to correct judicial errors, such as to render a j udgm e n t
which the court ought to have re ndere d in place of the one
it did erroneousl y render or to suppl y non action by the
court however erroneous the jud gm e nt may have been
(Manning International Corp., et al. vs. NLRC, et al., G.R.
No. 83018, Mar. 13, 1991).
11 . It is the filing of the signed decision with the
clerk of court, and not its pronounc em e nt in open court,
tha t constitutes rendition of j udgm e nt (Ago vs. CA, et al., L17898, Oct. 31, 1962; Balquidra vs. CFI of Capiz, L-40490,
Oct. 28, 1977; Castro vs. Malazo, A.M. No. 1237-

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CAR, Aug. 21, 1980). If the decision is sent by the judge


by registered mail, it is considered filed in court as of the
date of its receipt by the clerk, and not the date of its
posting or mailing (see Sec. 51, R.A. 296, as amended by
R.A. 1186 and R.A. 1404).
12. A judgment must conform to the pleadings and the theory
of the action under which the case was tried. A judgment
going outside the issues and purporting to adjudicate
something on which the parties were not heard is invalid
(Lazo, et al. vs. Republic Surety & Insurance Co., Inc., L27365, Jan. 30, 1970).
13. A decision of the Court of First Instance with absolutely
nothing to support it is a nullity and open to direct attack
(Air France vs. Carrascoso, et al., L-21488, Sept. 28, 1966).
14. A judgment contrary to the express provisions of law is
erroneous but it is not void. Once it becomes final and
executory, it is as binding and effective as any judgment and,
though erroneous, will be enforced as a valid j u d gm e n t in
a cc orda nce with its di spo sit i ons (Mercado, et al. vs. CA,
et al., L-44001, June 10, 1988).
15. The validity of a judgment or order of a court cannot be
collaterally attacked except on the ground of
(a) lack of jurisdiction, or (b) irre gula rit y of its entry
appare nt from the face of the record. If the supposed
nullity is based on the party' s alleged lack of consent to
the compromise agreement, the remedy is to move for its
reconsideration and to appeal from the the judgment if
the motion is denied; or if the judgment is already final
and executory, to file a petition for relief under Rule 38
(Cadano vs. Cadano, L-34998, Jan. 11, 1973).
16. Where the judgment is ambiguous and difficult to comply
with, the remedy is to file a motion for a so-called
"clarificatory" judgme nt (Almendras vs. Del Rosario, L20158, Oct. 14, 1968). The court may correct

417

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a clerical error or clarify an ambiguity in the judgment


even after its finality (Presbitero vs. CA, et al., L-34241,
May 28, 1984; Rebuldela, et al. vs. IAC, et al., G.R.
No. 70856, Nov. 11, 1987). For said purpose, the court
may resort to the pleadings filed by the parties, the findings
of fact and the conclusions of law expressed in the text or
body of the decision (Republic Surety & Insurance Co.,
Inc. vs. IAC, et al., G.R. Nos. 71131-32, July 27, 1987).
17. T he r e is a difference be t w e e n an a m e nde d j udgm e nt and
a suppleme ntal judgme nt. In an amended and clarified
judgme nt, the court makes a thorough study of the original
judgme nt and re nders the ame nde d and clarified j udgm e nt
only after considering all the factual and legal issues.
Such amended and clarified decision is an entirel y new
decision which supe rsede s the original decision.
A
suppleme ntal decision does not take the place
of or
extinguish the original; it only serves to bolster or add
somet hing to the prima ry decision (Esquivel, et al. vs.
Alegre, etc., et al., G.R. No. 79425, April 17, 1989).
18. Final orders should state the facts on which they ar e base d
(Yuson de Pua vs. San Agustin, L-27402, July 25, 1981).
While the Rules do not specifically require findings of fact
and the law on which an order of dismissal is based, for the
satisfaction of the losing part y and to assist the appellate
court in the resolution of an appeal therefrom, a trial court
should reason out its order instead of merel y incorporating,
by reference, the contents of the motion to dismiss
(Mascunana vs. Prov. Bd. of Neg. Occ, L-27013, Oct. 15, 1977).
Minute orders, or those merely sta t i n g tha t th e trial
court had resolved to gra n t the motion to dismiss, should
be avoided. Instead, the trial court should specify the
reasons io r the dismissal so tha t the appellate court can
readily de term ine whet he r there is prima facie j ust i fi c at i on
for the order of di sm issa l (Continental Bank vs. Tiangco, G.R.
No. 50480, Dec. 14, 1979).
In issuing a final and
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court should state clearly the reasons for its issuance, with
specific references to the facts and law relied upon,
necessary for the full underst anding thereof; otherwise,
th e a p p e l l a t e cour t would be at a loss or at lea s t
unnecessaril y inconvenienced in ascertaining the definite
basis of the order (Amunategue vs. CA, et at., L-30340,
June 30, 1979).
19. Every court having juri sdicti on to re nde r a particular
judgment has inherent power and authority to enforce it
and to exercise equitable control over such enforcement.
The court has authorit y to inquire whether its j u d g m e n t
ha s been e xe c ut e d , and will re m ov e obstructions to the
enforcement thereof. Such authorit y extends not only to
such orders and such writs as may be necessary to carry out
the judgment into effect and render
it binding and
operative, but also to such orders as may be necessary to
prevent an improper enforcement of the judgment. If a
judgment is sought to be perverted and made the medium
of consummating a wrong, the court on proper application
can prevent it [31 Am. JUT., Judgments, Sec. 882, pp. 363
364] (Cabrias vs. Adil, L-49648, Mar. 18, 1985).
20. The requirement in Sec. 1 of this Rule that a decision
should state the facts and law on which it is based (see Sec.
9, Art. X, 1973 Constitution) formerly applied only to
decisions of courts of record, and not those of inferior
courts, pursua nt to Sec. 12, Art. VII of the 1935
Constitution. Thus, formerly, decisions of an inferior court
were not required to contain findings of fact and law (then
Sec. 14, Rule 5), unless it sits as a court of record in a
criminal case appealable to the Court of Appeals or the
S u p r e m e C our t (Sec. 87, R.A. 296, as amended).
However, under R.A. 6031, inferior courts became courts
of record and the facts and law must appear in their
decisions. Also, Rule 5 has been expressly repealed and
the procedure in inferior courts is now the same as that in

419

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the Regional Trial Courts.


Ne vertheless, i t has repeatedl y been held tha t said
re quirem ent , set out in the foregoing constitutional and
stat utory provisions, refers only to decisions on the merits
and not to orders resolving incidental ma tt e rs (Mendoza
vs. CFI of Quezon, et al, L-35612 14, June 27, 1973, citing
Soncuya vs. National Investment Board, 69 Phil. 602
and Bacolod Murcia Milling Co., Inc. vs. Henares, 107
Phil. 560).
21 . The Supreme Court is not compelled to adopt a
definite and st ringent rule on how its judgm ent shall be
framed. It has the discretion to decide whet he r a "minute
resolution" should be used in lieu of a full-blown decision
in any pa rti c ula r case and tha t a minute resolution of
dismissal of a petition for review on certiorari constitutes
an adjudication on the merits of the controversy or subjectm at t e r of the petition. Since the grant of a petition for
review on certiorari is not a m at t e r of right but of sound
judicial discretion, the re is accordingly no need to fully
explain the Court ' s denial. Such a minute resolution can
only mean tha t the Suprem e Court agrees with or adopts
the findings and conclusions of the lower court, tha t is,
tha t the latter' s decision sought to be reviewed and set
aside is correct (Smith, Bell & Co. [Phil.], Inc., et al. vs,
CA, et al, G.R. No. 56294, May 20, 1991).
22. . Sec. 40, B.P. Blg. 129 has aut horized memo ra ndu m
decisions, a species of succinctly writ ten decisions by
a p p e l l a t e court s for e xpe di e nc y, pra c t i c a l i t y and
c onve ni e nce in c o ns i d e ra t i o n of th e docket s t a t u s of our
courts. I t has been held tha t such decisions comply with
the const i t ut i onal m a nda t e (Oil and Natural Gas
Commission vs. CA, et al, G.R. No. 114323, Sept. 28, 1999).
Howe ver, to be valid, such m e m o r a n d u m decision
should actuall y embody the factual findings and legal
conclusions in an annex attac hed to and made an integral
pa r t of th e decision. Also, such de cisions should be

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sparingly used and may be resorted to only in cases where


the facts are accepted in the main by the parties, are easily
determinable by the judge and do not involve doctrinal
complications requiring extended discussion. It may be
employed in simple cases where the appeal is obviously
groundless and deserves no more than the time to dismiss
it (Yao vs. CA, et al., G.R. No. 132428, Oct. 24, 2000 and
cases therein cited,).
23.. A judgm ent for support does not become final because
the allowance for the right of support is essentially
provisional (Advincula vs. Advincula, L-19065,
Jan. 31,
1964).
24.A judgment in a naturalization case becomes final only after
the issuance of
the
naturalization
certificate and
compliance by the applicant with R.A. 530 (Ao San vs.
Republic, L-21128, Aug. 19, 1967), but unlike other decisions,
it does not really become executory and a certificate of
naturalization may be cancelled on grounds subsequent to
the gra nti ng thereof (Republic vs. Guy, L 41399, July
20, 1982).
25.A judge permanently transferred to another court of equal
jurisdiction can render a decision on a case in his former court
which was totally heard by him and submitted for decision,
with the parties having argued the case (Valentin vs. Sta. Maria,
et al., L-30158, Jan. 17,1974). This decision aba ndons the
doctrine in People vs. Soria (L-25175, Mar. 1, 1968) and
reiterates the ruling in People vs. Donesa (L-24162, Jan. 31,
1973). The present doctrine applies to both civil and
criminal cases.
Sec. 2. Entry of judgments and final orders. If
no appeal or motion for new trial or rec on si de r ati on i
s filed within the time pr ovi de d in these Rules, the
judg me n t or final or der shall forthw ith be e nte re d
by the clerk in the book of e ntr ies of judgme nts. The
date of finality of the ju dg me n t or final order shall
421

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be de e me d to be th e dat e of its entry. Th e rec ord


shall c ontai n th e di s pos i t i v e part o f th e j u dg me n t
or final or de r an d shal l be si gne d by th e cler k, wit h
a c er ti fic ate tha t suc h j u dg me n t or final or de r ha s
be c om e final an d e xe c u t or y . (2a, 10, R51 )
NO TES
1. The am e ndm e nt s unde r this section, to the effect tha t the date
of finality of the j udgm e nt or final order shall be deemed
to be the date of its entry, changes the former rule and
aba ndons the j uri sprude nc e on what was then considered
the date of entry of j udgm e nt s and final orders.
The former doc t ri n e wa s tha t th e e nt r y i s not
synonymous or necessaril y simultaneous with the finality
of the jud gm e nt or final order. It was understood then
tha t the finality of a jud gm e nt or final order, for purposes
of appeal or execution, took place by operation of law by
the lapse of the re glem enta ry 15- or 30- day period, but
the ent ry thereof may take place therea fte r as i t is the
physical act of actuall y recording the dispositive portion
of the j udgm e nt or final order in the book of entrie s of
j ud gm e nt s .
Thus, i t was repeatedl y held tha t the finality of the
judgme nt was entirely distinct from its entry and the delay
in the latter does not affect the effectivity of the former
which is counted from the expiration of the period to appeal
(Munez, et al. us. CA, et al., L-46040, July 23, 1987, and
cases cited therein,).
This a m e n dm e n t in Sec. 2 makes finality and entry
s i m u l t a n e o u s by ope rat i on of law an d e l i m i na t e s the
confusion and guesswork whene ver the pa rtie s could not
have access, for one reason or anot her, to the book of
entrie s of jud gm e nt s. It also avoids the usual problem
where the physical act of writing out the entry is delayed
by neglect or sloth.
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2. Entry of the judgment or final order assumes im portance in


reckoning some re gl eme ntar y periods, such as the 5-year
period for execution by motion (Sec. 6, Rule 39) or the 6-month
period for a petition for relief (Sec. 3, Rule 38). For this reason
and to serve as official records, Rule 136 requires that the
clerk of court shall keep a judgment book containing a copy
of each judgment rendered by the court in the order of its
date, and a book of e n t r i e s of j u d g m e n t s c o n t a i n i n g at
le n gt h in chronological order entries of all final judgments or
orders of the court (Sec. 9).
Sec. 3. Judgment for or against one or more of several
parties. J u d g m e n t ma y be gi ve n for or a ga i n s t on e o
r m or e o f s e ve ra l pl aint iffs, an d for o r a g a i n s t on e o r
mor e o f se ve r a l d e f e n d a n t s . Whe n j u s t i c e s o d e m a n d s
, th e c o u r t ma y r e q u i r e th e pa r t i e s o n eac h side t o file
a d ve r s a r y pl e a di n g s a s be t w e e n t h e m s e l v e s an d
d e t e r m i n e t he i r u l t i m a t e ri gh t s an d o bl i ga t i o n s . (3)
Sec. 4. Several judgments. In an a c t i o n a ga i n s t
se ve r a l d e f e n d a n t s , th e cour t ma y , whe n a s e v e r a l
j u d g m e n t i s p r o p e r , r e n d e r j u d g m e n t a ga i n s t on e o r
mor e o f t hem , l e a vi n g th e a ct i o n t o p r oc e e d a ga i n s t
th e o t h e r s . (4)
Sec. 5. Separate judgments. Whe n mor e tha n on
e c la i m for relie f i s p r e s e n t e d i n an ac ti on , th e c o ur t , a t
an y st a ge , upo n a d e t e r m i n a t i o n o f th e i s s u e s m a t e r i a
l t o a p a r t i c u l a r c l a i m an d al l c o u n t e r c l a i m s a r i s i n g
ou t o f th e t r a n s a c t i o n o r o c c u r r e n c e whi c h i s th e
subjec t m a t t e r o f th e claim, ma y r e n d e r a s e p a r a t e
j u d g m e n t d i s p o s i n g of suc h c la i m . Th e j u d g m e n t shal
l t e r m i n a t e th e a c t i o n wit h r e s p e c t t o th e cl ai m s o
di sp o se d o f an d th e ac ti o n shal l pr oc e e d a s t o th e
r e m a i n i n g c la i m s. I n

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cas e a se par at e ju dg me n t i s re n de r e d , th e cour t by


or de r ma y stay its e nf orc e me n t until th e re n di t i o n
of a s u b s e q u e n t j u d g me n t or j u d g me n t s an d ma y
pre scr i b e suc h c on di t i on s a s ma y b e n e c e s s a r y t o
se c ur e th e be ne fi t t he re o f t o th e par ty i n w hos e
favor th e j u d g me n t i s r en de re d . (5a)
Sec. 6. Judgment against entity without juridical
personality. Whe n j u dg me n t is r en de re d agai n s t
tw o o r mor e p e r s o n s sue d a s a n e n t i t y w i t h o u t
j u r i di c a l p e r s o n a l i t y , th e j u d g me n t shal l se t ou t
thei r i n di v i d u a l or pr ope r na me s , i f kn ow n . (6a)
NOTES
1. Sec. 4 gives the meaning of a several judgm ent and Sec. 5,
a se pa rat e judgme nt. A se veral j udgm e nt is proper where
the liability of each party is clearly separable and distinct
from tha t of his co-parties such tha t the claims a ga i n s t
each of the m could have been th e subject of se parate
suits, and judgme nt for or a ga inst one of them will not
necessaril y affect the ot he rs. In actions against solidary
debtors, a se veral j udgm e nt is not proper. Thus, under Sec.
3(c), Rule 9, where there is a common cause of action agai nst
se veral defendants and some are in default, the case shall
be tried on the basis of the answer of the non-defaulting
defendants as a se veral j udgm e nt is not proper, there being
a common cause of action a ga inst all.
2. Regarding Sec. 6, see the provisions of Sec. 15, Rule 3 and
the notes the re unde r.
3. . A decision tha t ha s acquire d finality becomes
im m ut a ble and una l te ra ble . A final jud gm e n t may no
longer be modified in any respect, even if the modification is
mean t to correct erroneous conclusions of fact and law; and
whet he r i t be made by the court tha t re ndere d i t or by the
hi ghest court of the land (Collantes vs. CA, et al., G.R.
No. 169604, Mar. 6, 2007).
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J U D G M E N T S , FINA L
ORDE R S AN D ENTR Y
T HE R E O F

SE C . 6

The only exceptions to the rule that final judgm ent s


may no longer be modified in any respect are (1) the
correction of clerical errors, (2) the so-called nunc pro tunc
entries which cause no prejudice to any part y, (3) void
jud gm e nt s, and (4) whe ne ve r c i rc um st a nc e s t ra nspi re after
the finality of the decision making its execution unjust and
inequitable (Ramos vs. Ramos, G.R. No 144294, Mar. 11, 2003;
Sacdalan vs. CA, et al., 128967, May 20,
2004; Peha vs. GSIS, G.R. No. 159520, Sept. 19, 2006).

425

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RULE 37
NEW TRIAL OR RE CO N S ID E RATI O N
Se c ti on 1. Grounds of and period for filing motion for
new trial or reconsideration. W i t h i n th e p e r i o d
for t a k i n g a n a p p e a l , th e a g g r i e v e d par t y ma y
mov e th e trial c our t t o set asi d e th e j u dg me n t o r
final or de r an d gran t a ne w trial for on e or more
o f th e f o l l ow i n g c a u s e s m a t e r i a l l y a f fe c t i n g th e
s u b s t a n t i a l r i ght s of said party:
(a) F r a u d , a c c i d e n t , m i s t a k e o r e x c u s a b l e n e g l i g e n c e
w h i c h o r d i n a r y p r u d e n c e c ou l d no t hav e gu ar de d
a gai n s t an d b y reas o n o f w hi c h suc h a g gr i e ve d
party ha s pr oba bly bee n i mpai r e d i n his r i ghts; or
( b) New l y di s c ov e r e d e v i de n c e , w hic h h e coul d not, wit h
r e a s o n a bl e di l i g e n c e , hav e di s c ov e r e d and p r od u c e d
a t th e trial, an d w hi c h i f pr e s e n t e d w oul d pr oba bl y
alte r th e res ul t.
Withi n th e sa m e pe r i od , th e a g g r i e v e d part y
ma y a l s o m o v e fo r r e c o n s i d e r a t i o n u p o n th e
g r ou n d s tha t th e da ma g e s aw ar de d are e xc e s s i ve ,
tha t th e e v i d e n c e i s i n s u f f i c i e n t t o j u s t i f y th e
de c i s i o n or final or der, or tha t th e d e c i s i o n or final
or de r i s c on tr ar y t o law. (la )
NOTE S
1.

The word "perfecting" in the first clause of the former Sec. 1


has been correctl y changed to "taking." Unde r the pre se nt
procedure, an appeal is taken by filing a notice of appeal,
and the appeal is perfected upon the expirat ion of th e last
day to appeal by any part y. In cases where a record on
appeal is required, appeal is taken by filing the notice of
appeal and the record on appeal,

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and the appeal is perfected upon the approval of the record


on appeal (Destileria Lim Tuaco & Co., Inc. vs. CA, et al.,
G.R. No. 63053, July 22, 1986).
This section has been further reformulated with a
second pa r a gr a p h se pa ra te l y tre at i n g on motions for
reconsideration which are similarly but not completely
governed by the same rules on motions for new trial.
2. A motion for new trial should be filed within the period for
appeal, tha t is, within 15 or 30 days from notice of the
judgment. It suspends the runni ng of the period to appeal,
but does not extend the time within which an appeal, must
be perfected (taken), hence, if denied, the movant has only
the balance of the re gl eme ntar y period within which to
perfect (take) his appeal (Ramirez de la Cavada, et al. vs.
Butte, 100 Phil. 635).
3.However, if a motion for new trial does not satisfy the
re quirem ent s of this Rule, it is pro forma and does not
suspend the period to appeal (Sec. 2; Francisco vs. Caluag, L15365, Dec. 26, 1961). A motion for new tri a l is considered
pro forma where :
(a) It is based on the same ground as that raised in a preceding
motion for new trial or reconsideration which has already
been denied (Samudio, et al. vs. Mun. of Gainza, Camarines
Sur, 100 Phil. 1013);
(b) It contains the same argume nts and ma nne r of discussion
appearing in the prior opposition to the motion to dismiss
and which motion was granted (Cruz vs. Tuazon & Co.,
Inc., et al, L-23749, April 7, 1977);
(c) The new ground alleged in the second motion for new trial
already existed, was available and could have been alleged
in the first motion for new trial which was denied (Mallare, et
al. vs. Panahon, et al, 98 Phil. 154; Balquidra vs. CFI, et
al, L-40490, Oct. 28, 1977);
(d) It is based on the ground of insufficiency of evidence or
tha t the jud gm e nt is contrary to law but

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does not specify the supposed defects in the judgm ent


(Sec. 2; Villalon, et al. vs. Ysip, et al., 98 Phil. 851;
Crisostomo, et al. vs. CA, et al., L-27166, Mar. 25, 1970;
Villarica, et al. vs. CA, et al., L-28363, May 15, 1974; City
of Cebu vs. Mendoza,
et
al, L-26321, Feb. 25,
1975;
Nieto vs. De los Angeles, L-35514, Nov. 13, 1981); and
(e) It is ba se d on th e ground of fraud, accident, mistake or
excusable negligence but does not specify the facts
constituting these grounds and/or is not accompanied by an
affidavit of merits (Sec. 2 of this Rule). Note that fraud
and mi st a ke mus t be alleged with pa rti c ula ri t y (Sec. 5,
Rule 8).
F u r t h e r m o r e , said motion mus t comply wit h the
provisions of Rule 15, otherwise it will not be accepted for
filing a n d / o r will no t s u s p e n d th e r u n n i n g o f th e
re glem enta ry period. See notes and cases unde r Sec. 6 ,
Rule 15.
I t should also be observed tha t heretofore, unde r Sec.
4 of the Inte rim Rules, no pa rt y shall be allowed to file a
second motion for reconsideration of a final order or
j udgm e nt of the trial courts. However, a second motion
for new trial woul d st i l l be a v a i l a b l e u n d e r th e
ci rcum st ance s set out in Sec. 5 of this Rule. This section
has now expressly adopted the foregoing prohibition in
th e Int e ri m Rules wit h re spe ct to second moti ons for
reconsideration.
4..

It has been held, however, tha t even if the motion for


re c onsi de ra ti on is based on subst a nt ia l l y the same
grounds as movant ' s memorandum whe n the case was
submitte d for decision, it is not pr o forma if it specifically
points out the conclusions allegedly not su pp or t e d by the
evidence
(Maturan vs. Araula, et al, G.R. No. 57392, Jan.
30, 1982), aside
from
st a t i n g a d di t i on a l specific
re asons for said grounds (Vina vs. CA, et al, L-39498,
Dec. 23, 1983).

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Also, while a motion for new trial based on fraud and


so forth is pro forma if unaccompanied by an affidavit of
merits, where said motion also invokes the further ground
tha t its decision a wa r d s excessi ve da m a ge s , wit h a
certification of the court's findings and conclusions, said
motion is not pro forma as the latter ground does not
require affidavits of merits (PCIB vs. Ortiz, et al., L-49223,
May 29, 1987).
5. Furt he rm ore ,
the concept oipro forma motions for
re c o ns i de ra t i o n is prope rl y di re ct e d a ga i n s t a final
judgm ent or order, and not those against an interlocutory
order. In the former, a repetition of the ground already
disposed of may be categorized as merely for purposes of
delay, hence such motion is pro forma; but such rule
does not apply to motions directed against interlocutory
orde r s (BA Finance Corp. vs. Pineda, et al., G.R.
No. 61628, Dec. 29, 1982). See also Note 11 under Sec. 1,
Rule 65.
6. On the pro forma doctrine, it is worth recalling wha t th e
S u p r e m e Cour t re i t e r a t e d in Dacanay vs. Alvendia, et al. (L22633, Oct. 31 , 1969) that
where
a
motion for
reconsideration is but
a reiteration of reasons and
a rgu m e nt s pre viousl y set forth in the m ova nt