G.R. No.

L-37750 May 19, 1978

SWEET LINES, INC., petitioner,
vs.
HON. BERNARDO TEVES, Presiding Judge, CFI of Misamis Oriental Branch VII, LEOVIGILDO
TANDOG, JR., and ROGELIO TIRO, respondents.
Filiberto Leonardo, Abelardo C. Almario & Samuel B. Abadiano for petitioner.
Leovigildo Vallar for private respondents.

SANTOS, J.:
This is an original action for Prohibition with Pre Injunction filed October 3, 1973 to restrain
respondent Judge from proceeding further with Civil Case No. 4091, entitled Leovigildo D. Tandog,
Jr. and Rogelio Tiro v. Sweet Lines, Inc." after he denied petitioner's Motion to Dismiss the
complaint, and the Motion for Reconsideration of said order. 1
Briefly, the facts of record follow. Private respondents Atty. Leovigildo Tandog and Rogelio Tiro, a
contractor by professions, bought tickets Nos. 0011736 and 011737 for Voyage 90 on December 31,
1971 at the branch office of petitioner, a shipping company transporting inter-island passengers and
cargoes, at Cagayan de Oro City. Respondents were to board petitioner's vessel, M/S "Sweet Hope"
bound for Tagbilaran City via the port of Cebu. Upon learning that the vessel was not proceeding to
Bohol, since many passengers were bound for Surigao, private respondents per advice, went to the
branch office for proper relocation to M/S "Sweet Town". Because the said vessel was already filled
to capacity, they were forced to agree "to hide at the cargo section to avoid inspection of the officers
of the Philippine Coastguard." Private respondents alleged that they were, during the trip," "exposed
to the scorching heat of the sun and the dust coming from the ship's cargo of corn grits," and that the
tickets they bought at Cagayan de Oro City for Tagbilaran were not honored and they were
constrained to pay for other tickets. In view thereof, private respondents sued petitioner for damages
and for breach of contract of carriage in the alleged sum of P10,000.00 before respondents Court of
First Instance of Misamis Oriental. 2
Petitioner moved to dismiss the complaint on the ground of improper venue. This motion was
premised on the condition printed at the back of the tickets, i.e., Condition No. 14, which reads:

14. It is hereby agreed and understood that any and all actions arising out of the
conditions and provisions of this ticket, irrespective of where it is issued, shall be filed
in the competent courts in the City of Cebu. 3
The motion was denied by the trial court. 4 Petitioner moved to reconnsider the order of denial, but no
avail. 5 Hence, this instant petition for prohibition for preliminary injunction, 'alleging that the respondent
judge has departed from the accepted and usual course of judicial preoceeding" and "had acted without
or in excess or in error of his jurisdicton or in gross abuse of discretion.

In Our resolution of November 20, 1973, We restrained respondent Judge from proceeding further
with the case and required respondent to comment. 7 On January 18, 1974, We gave due course to the
petition and required respondent to answer. 8 Thereafter, the parties submitted their respesctive
memoranda in support of their respective contentions.

Presented thus for Our resolution is a question is aquestion which, to all appearances, is one of first
impression, to wit Is Condition No. 14 printed at the back of the petitioner's passage tickets
purchased by private respondents, which limits the venue of actions arising from the contract of
carriage to theCourt of First Instance of Cebu, valid and enforceable? Otherwise stated, may a
common carrier engaged in inter-island shipping stipulate thru condition printed at the back of
passage tickets to its vessels that any and all actions arising out of the ocntract of carriage should be
filed only in a particular province or city, in this case the City of Cebu, to the exclusion of all others?
Petitioner contends thaty Condition No. 14 is valid and enforceable, since private respndents
acceded to tit when they purchased passage tickets at its Cagayan de Oro branch office and took its
vessel M/S "Sweet Town" for passage to Tagbilaran, Bohol that the condition of the venue of
actions in the City of Cebu is proper since venue may be validly waived, citing cases;

10

that is an

effective waiver of venue, valid and binding as such, since it is printed in bold and capital letters and not in
fine print and merely assigns the place where the action sing from the contract is institution likewise citing
cases; 11 and that condition No. 14 is unequivocal and mandatory, the words and phrases "any and all",
"irrespective of where it is issued," and "shag" leave no doubt that the intention of Condition No. 14 is to
fix the venue in the City of Cebu, to the exclusion of other places; that the orders of the respondent Judge
are an unwarranted departure from established jurisprudence governing the case; and that he acted
without or in excess of his jurisdiction in is the orders complained of.

12

On the other hand, private respondents claim that Condition No. 14 is not valid, that the same is not
an essential element of the contract of carriage, being in itself a different agreement which requires
the mutual consent of the parties to it; that they had no say in its preparation, the existence of which
they could not refuse, hence, they had no choice but to pay for the tickets and to avail of petitioner's
shipping facilities out of necessity; that the carrier "has been exacting too much from the public by
inserting impositions in the passage tickets too burdensome to bear," that the condition which was

printed in fine letters is an imposition on the riding public and does not bind respondents, citing
cases; 13 that while venue 6f actions may be transferred from one province to another, such arrangement
requires the "written agreement of the parties", not to be imposed unilaterally; and that assuming that the
condition is valid, it is not exclusive and does not, therefore, exclude the filing of the action in Misamis
Oriental, 14

There is no question that there was a valid contract of carriage entered into by petitioner and private
respondents and that the passage tickets, upon which the latter based their complaint, are the best
evidence thereof. All the essential elements of a valid contract, i.e., consent, cause or consideration
and object, are present. As held inPeralta de Guerrero, et al. v. Madrigal Shipping Co., Inc.,

15

It is a matter of common knowledge that whenever a passenger boards a ship for

transportation from one place to another he is issued a ticket by the shipper which
has all the elements of a written contract, Namely: (1) the consent of the contracting
parties manifested by the fact that the passenger boards the ship and the shipper
consents or accepts him in the ship for transportation; (2) cause or consideration
which is the fare paid by the passenger as stated in the ticket; (3) object, which is the
transportation of the passenger from the place of departure to the place of
destination which are stated in the ticket.
It should be borne in mind, however, that with respect to the fourteen (14) conditions one of which
is "Condition No. 14" which is in issue in this case printed at the back of the passage tickets,
these are commonly known as "contracts of adhesion," the validity and/or enforceability of which will
have to be determined by the peculiar circumstances obtaining in each case and the nature of the
conditions or terms sought to be enforced. For, "(W)hile generally, stipulations in a contract come
about after deliberate drafting by the parties thereto, ... there are certain contracts almost all the
provisions of which have been drafted only by one party, usually a corporation. Such contracts are
called contracts of adhesion, because the only participation of the party is the signing of his
signature or his 'adhesion' thereto. Insurance contracts, bills of lading, contracts of make of lots on
the installment plan fall into this category"

16

By the peculiar circumstances under which contracts of adhesion are entered into namely, that it
is drafted only by one party, usually the corporation, and is sought to be accepted or adhered to by
the other party, in this instance the passengers, private respondents, who cannot change the same
and who are thus made to adhere thereto on the "take it or leave it" basis certain guidelines in the
determination of their validity and/or enforceability have been formulated in order to that justice and
fan play characterize the relationship of the contracting parties. Thus, this Court speaking through
Justice J.B.L. Reyes in Qua Chee Gan v. Law Union and Rock Insurance Co.,
Justice Fernando in Fieldman Insurance v. Vargas,

18

held

17

and later through

The courts cannot ignore that nowadays, monopolies, cartels and concentration of
capital endowed with overwhelm economic power, manage to impose upon parties d
with them y prepared 'agreements' that the weaker party may not change one whit
his participation in the 'agreement' being reduced to the alternative 'to take it or leave
it,' labelled since Raymond Saleilles 'contracts by adherence' (contracts d' adhesion)
in contrast to those entered into by parties bargaining on an equal footing. Such
contracts (of which policies of insurance and international bill of lading are prime
examples) obviously cap for greater strictness and vigilance on the part of the courts
of justice with a view to protecting the weaker party from abuses and imposition, and
prevent their becoming traps for the unwary.
To the same effect and import, and, in recognition of the character of contracts of this kind, the
protection of the disadvantaged is expressly enjoined by the New Civil Code
In all contractual property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance indigence, mental
weakness, tender age and other handicap, the courts must be vigilant for his
protection. 19
Considered in the light Of the foregoing norms and in the context Of circumstances Prevailing in the
inter-island ship. ping industry in the country today, We find and hold that Condition No. 14 printed at
the back of the passage tickets should be held as void and unenforceable for the following reasons
first, under circumstances obligation in the inter-island ship. ping industry, it is not just and fair to bind
passengers to the terms of the conditions printed at the back of the passage tickets, on which
Condition No. 14 is Printed in fine letters, and second, Condition No. 14 subverts the public policy on
transfer of venue of proceedings of this nature, since the same will prejudice rights and interests of
innumerable passengers in different s of the country who, under Condition No. 14, will have to file
suits against petitioner only in the City of Cebu.
1. It is a matter of public knowledge, of which We can take judicial notice, that there is a dearth of
and acute shortage in inter- island vessels plying between the country's several islands, and the
facilities they offer leave much to be desired. Thus, even under ordinary circumstances, the piers are
congested with passengers and their cargo waiting to be transported. The conditions are even worse
at peak and/or the rainy seasons, when Passengers literally scramble to whatever accommodations
may be availed of, even through circuitous routes, and/or at the risk of their safety their immediate
concern, for the moment, being to be able to board vessels with the hope of reaching their
destinations. The schedules are as often as not if not more so delayed or altered. This was
precisely the experience of private respondents when they were relocated to M/S "Sweet Town" from

M/S "Sweet Hope" and then any to the scorching heat of the sun and the dust coming from the ship's
cargo of corn grits, " because even the latter was filed to capacity.
Under these circumstances, it is hardly just and proper to expect the passengers to examine their
tickets received from crowded/congested counters, more often than not during rush hours, for
conditions that may be printed much charge them with having consented to the conditions, so
printed, especially if there are a number of such conditions m fine print, as in this case.

20

Again, it should be noted that Condition No. 14 was prepared solely at the ms of the petitioner,
respondents had no say in its preparation. Neither did the latter have the opportunity to take the into
account prior to the purpose chase of their tickets. For, unlike the small print provisions of contracts
the common example of contracts of adherence which are entered into by the insured in his
awareness of said conditions, since the insured is afforded the op to and co the same, passengers
of inter-island v do not have the same chance, since their alleged adhesion is presumed only from
the fact that they purpose chased the tickets.
It should also be stressed that slapping companies are franchise holders of certificates of public
convenience and therefore, posses a virtual monopoly over the business of transporting passengers
between the ports covered by their franchise. This being so, shipping companies, like petitioner,
engaged in inter-island shipping, have a virtual monopoly of the business of transporting passengers
and may thus dictate their terms of passage, leaving passengers with no choice but to buy their
tickets and avail of their vessels and facilities. Finally, judicial notice may be taken of the fact that the
bulk of those who board these inter-island vested come from the low-income groups and are less
literate, and who have little or no choice but to avail of petitioner's vessels.
2. Condition No. 14 is subversive of public policy on transfers of venue of actions. For, although
venue may be changed or transferred from one province to another by agreement of the parties in
writing t to Rule 4, Section 3, of the Rules of Court, such an agreement will not be held valid where it
practically negates the action of the claimants, such as the private respondents herein. The
philosophy underlying the provisions on transfer of venue of actions is the convenience of the
plaintiffs as well as his witnesses and to promote 21 the ends of justice. Considering the expense and
trouble a passenger residing outside of Cebu City would incur to prosecute a claim in the City of Cebu, he
would most probably decide not to file the action at all. The condition will thus defeat, instead of enhance,
the ends of justice. Upon the other hand, petitioner has branches or offices in the respective ports of call
of its vessels and can afford to litigate in any of these places. Hence, the filing of the suit in the CFI of
Misamis Oriental, as was done in the instant case, will not cause inconvenience to, much less prejudice,
petitioner.

Public policy is ". . . that principle of the law which holds that no subject or citizen can lawfully do that
which has a tendency to be injurious to the public or against the public good ...

22

Under this

principle" ... freedom of contract or private dealing is restricted by law for the good of the public.

23

Clearly,

Condition No. 14, if enforced, will be subversive of the public good or interest, since it will frustrate in
meritorious cases, actions of passenger cants outside of Cebu City, thus placing petitioner company at a
decided advantage over said persons, who may have perfectly legitimate claims against it. The said
condition should, therefore, be declared void and unenforceable, as contrary to public policy to make
the courts accessible to all who may have need of their services.

WHEREFORE, the petition for prohibition is DISMISS. ED. The restraining order issued on
November 20, 1973, is hereby LIFTED and SET ASIDE. Costs against petitioner.
Fernando (Chairman), Aquino, Concepcion, Jr., JJ., concur.
Antonio, J., reserves his vote.

Separate Opinions

BARREDO, J., concurring:

I concur in the dismissal of the instant petition.
Only a few days ago, in Hoechst Philippines, Inc. vs. Francisco Torres, et al., G. R. No. L-44351,
promulgated May 18, 1978, We made it clear that although generally, agreements regarding change
of venue are enforceable, there may be instances where for equitable considerations and in the
better interest of justice, a court may justify the laying of, the venue in the place fixed by the rules
instead of following written stipulation of the parties.
In the particular case at bar, there is actually no written agreement as to venue between the parties
in the sense contemplated in Section 3 of Rule 4, which governs the matter. I take it that the
importance that a stipulation regarding change of the venue fixed by law entails is such that nothing
less than mutually conscious agreement as to it must be what the rule means. In the instant case, as
well pointed out in the main opinion, the ticket issued to private respondents by petitioner constitutes
at best a "contract of adhesion". In other words, it is not that kind of a contract where the parties sit
down to deliberate, discuss and agree specifically on all its terms, but rather, one which respondents
took no part at all in preparing, since it was just imposed upon them when they paid for the fare for

the freight they wanted to ship. It is common knowledge that individuals who avail of common
carriers hardly read the fine prints on such tickets to note anything more than the price thereof and
the destination designated therein.
Under these circumstances, it would seem that, since this case is already in respondent court and
there is no showing that, with its more or less known resources as owner of several inter-island
vessels plying between the different ports of the Philippines for sometime already, petitioner would
be greatly inconvenienced by submitting to the jurisdiction of said respondent court, it is best to allow
the proceedings therein to continue. I cannot conceive of any juridical injury such a step can cause
to anyone concerned. I vote to dismiss the petition.

Separate Opinions
BARREDO, J., concurring:
I concur in the dismissal of the instant petition.
Only a few days ago, in Hoechst Philippines, Inc. vs. Francisco Torres, et al., G. R. No. L-44351,
promulgated May 18, 1978, We made it clear that although generally, agreements regarding change
of venue are enforceable, there may be instances where for equitable considerations and in the
better interest of justice, a court may justify the laying of, the venue in the place fixed by the rules
instead of following written stipulation of the parties.
In the particular case at bar, there is actually no written agreement as to venue between the parties
in the sense contemplated in Section 3 of Rule 4, which governs the matter. I take it that the
importance that a stipulation regarding change of the venue fixed by law entails is such that nothing
less than mutually conscious agreement as to it must be what the rule means. In the instant case, as
well pointed out in the main opinion, the ticket issued to private respondents by petitioner constitutes
at best a "contract of adhesion". In other words, it is not that kind of a contract where the parties sit
down to deliberate, discuss and agree specifically on all its terms, but rather, one which respondents
took no part at all in preparing, since it was just imposed upon them when they paid for the fare for
the freight they wanted to ship. It is common knowledge that individuals who avail of common
carriers hardly read the fine prints on such tickets to note anything more than the price thereof and
the destination designated therein.

Under these circumstances, it would seem that, since this case is already in respondent court and
there is no showing that, with its more or less known resources as owner of several inter-island
vessels plying between the different ports of the Philippines for sometime already, petitioner would
be greatly inconvenienced by submitting to the jurisdiction of said respondent court, it is best to allow
the proceedings therein to continue. I cannot conceive of any juridical injury such a step can cause
to anyone concerned. I vote to dismiss the petition.
SECOND DIVISION
[G.R. No. 32945 : December 3, 1990.]
191 SCRA 783-795
MARIANO T. NASSER, Petitioner, vs. THE COURT OF APPEALS, HON. MALCOLM
SARMIENTO, in his capacity as Presiding Judge, Court of First Instance of
Pampanga, Branch I, AURORA RIVERA CANLAS, PATERNO R. CANLAS, and TOMAS
CENTILLAS, Respondents.
[G.R. No. 32946. December 3, 1990.]
191 SCRA 783-795
MARIANO T. NASSER, Petitioner, vs. THE COURT OF APPEALS, PATERNO R.
CANLAS, AURORA RIVERA-CANLAS, TOMAS CENTILLAS and THE CHIEF OF POLICE
OF SAN ISIDRO, DAVAO ORIENTAL, Respondents.

DECISION
PARAS, J.:
These are petitions for certiorari and/or prohibition filed by petitioner Mariano T. Nasser, in
G.R. No. L-32945 entitled "Mariano T. Nasser v. Court of Appeals, Hon. Malcolm Sarmiento
etc., Aurora Rivera Canlas, Paterno R. Canlas and Tomas Centillas" seeking: (1) to annul and
set aside: (a) the decision * of the Court of Appeals dated October 7, 1970 in CA No.
45317-R between the same parties, dismissing the petition for lack of merit and dissolving
the writ of preliminary injunction issued on June 17, 1970 and (b) the resolution dated
December 4, 1970 denying the motion for reconsideration and (2) to restrain or enjoin the
Chief of Police of Governor General, Davao Oriental from implementing the Order of
Attachment issued by the Court of First Instance of Pampanga in Civil Case No. 3641 and in
G.R. No. L-32946 entitled "Mariano T. Nasser, et. al. v. The Court of Appeals, Paterno R.
Canlas, Aurora Rivera-Canlas, Tomas Centillas and the Chief of Police of San Isidro, Davao
Oriental seeking: (1 ) to annul and set aside the decision of the Court of Appeals dated
October 10, 1970 in CA-G.R. No. 44856-R entitled "Aurora Rivera-Canlas et al. v. Hon.
Judge Vicente P. Bullecer, et al." which declared permanent the Amended Writ of Preliminary
Injunction it issued on June 16, 1970 directing the CFI of Davao Oriental to refrain from
enforcing the writs of preliminary injunctions it issued in Civil Case No. 3641 of the Court of
First Instance of Pampanga and (2) to restrain or prohibit: (a) the Court of Appeals from
enforcing the amended writ of preliminary injunction it issued on June 16, 1970 and (b)
Tomas Centillas, Chief of Police of Governor Generoso and the Chief of Police of San Isidro,

both of Davao Oriental from further executing or implementing the Order of Attachment
dated January 20, 1970, issued also in Civil Case No. 3641, CFI of Pampanga.
:-cralaw

These two cases have their origin from an order of attachment issued in Civil Case No.
3641, entitled "Aurora Fe Rivera Canlas vs. Mariano T. Nasser" in the Court of First Instance
of Pampanga (now Regional Trial Court, RTC for short) Branch I, presided by respondent
Hon. Judge Malcolm G. Sarmiento, for collection of a sum of money. It is evident that both
petitions seek to enjoin or prohibit the implementation of the said order.
As gathered from the records, the facts of the case are as follows:
Petitioner Mariano T. Nasser was a lessee of haciendas La Union, Montserrat, Sigaboy,
Pundaguitan and Colatinan, in Davao Oriental owned by the Estate of Don Amadeo Matute
Olave (G.R. No. 32945, p. 109, vol. I, Rollo).
Matias S. Matute, co-administrator of the Olave Estate executed (a) an original Contract of
Lease dated February 10, 1965, to expire on August 10, 1970 and (b) a Supplemental
Contract of Lease dated June 12, 1965, for a period of five (5) years after the expiration of
the original Contract of Lease dated February 10, 1965, both of which are in favor of
NASSER as lessee (pp. 112-113, G.R. No. 32945).
On April 25, 1966, NASSER executed three (3) Promissory Notes in favor of Matias S.
Matute, with the following highlighted provisions, viz:
(1) P378,000.00
x x x
"Should my original contract of lease dated February 10, 1965 and supplemental
contract of lease dated January 7, 1966 over the haciendas of the Estate (Hacienda
La Union, Sigaboy, Montserrat, Colatinan and Pundaguitan) leased by the coadministrator Matias S. Matute is already terminated or cancelled before the
expiration of the period thereof by final court judgment or sale to us, any and all
future installments of this PROMISSORY NOTE as of said date of termination and
cancellation shall be deemed also extinguished, cancelled and become no longer
payable.
"Any action involving the enforcement of this contract shall be brought within the
City of Manila, Philippines . . ." (G.R. No. L-32945, Vol. I, p. 109).
(2) "ORIGINAL LEASE
231,000.00
x x x
(3) "SUPPLEMENTAL LEASE
P210,000.00
x x x
(G.R. No. L-32945, Vol. I, pp. 110)
On February 7, 1967, Matias S. Matute assigned, sold, transferred and set-over unto
respondent Aurora Rivera-Canlas, all the above described promissory notes with the express
conformity of petitioner Nasser (G.R. No. L-32945, Vol. I, p. 107).
In 1968, NASSER bought the hereditary shares of the heirs Luis Augustina, Elena, Amadeo,
all surnamed Matute and Anunciacion Candelario for the total amount of P660,000.00 (Rollo
of G.R. No. 32945, pp. 182-186-195, Vol. I).

Out of the total amount of P819,000.00 due on the three (3) promissory notes, petitioner
has paid only P121,983.45 leaving a total unpaid balance of P697,016.55.
:-cralaw

In G.R. No. L-32945

Respondent Aurora joined by her husband, Paterno R. Canlas, filed a complaint on January
6, 1970 for a sum of money with application for a Writ of Preliminary Attachment docketed
as Civil Case No. 3641 before the Court of First Instance of Pampanga (now Regional Trial
Court) dated December 27, 1969 (Rollo, G.R. No. L-32945, pp. 99-105; 106-108) which was
granted by Judge Sarmiento upon a bond of P20,000.00 put up by respondents (G.R. No. L32945, pp. 120-121). The Sheriff of Manila issued a notice of garnishment against NASSER
as transferee-pendente-lite of heirs Luis and Jose Matute and Amadeo Matute Candelario,
Jr., which was entered and made part and parcel of the case in Special Proceeding No.
25876 in Re: Testate Estate of Amadeo Matute Olave (G.R. No. L-32945, p. 122). Upon
motion of Canlas spouses, respondent judge issued an order deputizing the Chief of Police of
Governor Generoso, Davao Oriental, to serve, execute and fully implement the Order of
Attachment dated January 20, 1970, until the amount of P697,016.55 is realized.
By virtue of the writ, respondent Chief of Police attached the properties of petitioner, not
otherwise exempt from execution, among which were the latter's leasehold rights in
Hacienda Sigaboy, Montserrat, La Union, Colatinan and Pundaguitan, which are producing
copra and rendered his report of such action to the court on February 18, 1970. (emphasis
supplied)
Meanwhile, NASSER, as defendant, filed: (1) an Urgent Motion to Dismiss on the ground of
improper venue (G.R. No. L-32945, pp. 136-140) and (2) an Urgent Motion to Dissolve or
Discharge the Order of Attachment issued on January 20, 1970, on the ground that the
order of attachment was improperly and irregularly issued (G.R. No. L-32945, pp. 143-150).
Said motions were opposed by the respondent spouses on February 10, 1970 (G.R. No. L32945, pp. 152-159; 162-167) both of which were denied by respondent Judge. Instead of
filing an answer, NASSER filed an urgent Motion for Reconsideration.
:-cralaw

Hence, on March 19, 1970, respondent judge declared Nasser in default, allowed spouses
Canlas to present their evidence ex-parte (G.R. No. L-32945, p. 206), and on the following
day, March 20, 1970 rendered judgment in Civil Case No. 3641 in favor of said spouses and
ordered Nasser to pay them P684,015.55, with interest at 6% per annum from the filing of
the complaint until fully paid plus P20,000.00 as attorney's fees and another P5,000.00 for
expenses of litigation.
However, respondent judge motu propio set aside the order of default on March 23, 1970
(Rollo, Vol. I, pp. 206-208), it appearing that Nasser had filed an "Urgent Ex-Parte Motion to
Lift Order of Default dated March 19, 1970" (Rollo, p. 201-204).
Then on April 3, 1970, herein petitioner filed in the lower court another "Urgent Motion to
Set Aside or Revoke the order of January 24, 1970" deputizing the Chief of Police of
Governor Generoso, Davao Oriental as special sheriff with prayer for restraining order or
injunction (Rollo, pp. 208-223). This was opposed by the Canlas spouses on April 8, 1970
(Rollo, pp. 228-250) to which Nasser filed a "Reply".
On April 24, 1970, respondent judge issued two orders, namely: (1) holding in abeyance his
resolution on petitioner's motion to relieve the Chief of Police of Governor Generoso, in view
of the pendency of CA G.R. No. 44856-R before the Court of Appeals, where the same issue
was supposedly raised (Rollo, p. 267); and (2) denying Nasser's motion for a
reconsideration of the order dated February 23, 1970 denying his motion to dismiss.
From the orders dated April 24, 1970, petitioner filed a petition for certiorari and/or
prohibition with the Supreme Court, the same was docketed as G.R. No. L-31904. After

finding that the issues posed are closely connected and interdependent with those raised in
CA-G.R. No. 44856-R pending in the Court of Appeals, the Supreme Court remanded the
case to the Court of Appeals for appropriate action in its resolution dated May 8, 1970 and
was docketed as CA-G.R. No. 45317-R.
On June 17, 1970, the Court of Appeals gave due course to the petition and issued a writ of
preliminary injunction enjoining the respondent judge Malcolm G. Sarmiento from
continuing the hearing of Civil Case No. 3641 in whatever stage it may be found and to
enforce the Order of Attachment issued in Civil Case No. 3641, and enjoining also the Chief
of Police of Governor Generoso, Davao Oriental, from executing such Order of Attachment.
An answer to the petition was filed by the Canlas spouses on July 23, 1970.

:-cralaw

On October 7, 1970, the respondent Court of Appeals rendered its decision in CA-G.R. No.
45317-R, the dispositive portion of which reads:
"WHEREFORE, the present petition for writs of certiorari and or prohibition is hereby
denied for lack of merit and the writ of preliminary injunction issued by this Court on
June 16, 1970 in connection with this case is ordered dissolved. The costs of this
proceeding shall be borne by the petitioner.
SO ORDERED." (Rollo, Vol. II, p. 644)
Nasser's motion and supplemental motion for reconsideration were denied. Hence, this
petition in G.R. No. L-32945.
In G.R. No. L-32946
Meanwhile, Nasser on February 12, 1970 filed Civil Case No. 138 in a co-equal court CFIDavao Oriental, a complaint for injunction against respondent Chiefs of Police of Governor
Generoso and San Isidro praying that the latter be enjoined or restrained from attempting
to stop petitioner from removing or disposing the copra from the haciendas for lack of
authority.
Respondents Chiefs of Police filed an Urgent Opposition to the Issuance of a Writ of
Preliminary Injunction and Motion to Dismiss Civil Case No. 138 alleging that the CFI-Davao
Oriental lacks jurisdiction over the case and that the complaint states no cause of action.
On February 23, 1970, NASSER filed Civil Case No. 140 with the CFI-Davao Oriental against
respondents Canlas and Matias S. Matute for annulment of said Promissory Notes and Deed
of Assignment.
On even date NASSER filed in Civil Case No. 138, a Supplemental Complaint with Urgent
Motion for Grant of a Writ of Preliminary Injunction Ex-Parte and Urgent Motion for
Restraining Order dated February 28, 1970, which motions (G.R. No. L-32946, pp. 14-15,
Vol. I) were granted by Judge Vicente Bullecer, CFI-Davao Oriental in the Order of March 3,
1970, restraining the Chiefs of Police of Governor Generoso and San Isidro from further
attaching the copra of petitioner. (Emphasis supplied)
On March 7, 1970, Canlas and the respective Chiefs of Police of Governor Generoso and San
Isidro filed a petition for certiorari and prohibition with preliminary injunction before the
Court of Appeals docketed as CA-G.R. No. 44856-R against Judge Bullecer of CFI-Davao
Oriental and petitioner, praying that Judge Bullecer be restrained from continuing the
hearing of Civil Case No. 138 and from enforcing the restraining order he had issued.
On March 11, 1970, the Court of Appeals issued the writ of preliminary injunction prayed
for, enjoining petitioner or any of his agents, representatives or employees to refrain from
interfering and taking possession of the properties levied on the properties subject of
leasehold rights and levied on attachment by the special sheriff and from impeding and

obstructing the Writ of Attachment issued in Civil Case No. 3641, CFI-Pampanga, until
further orders.
Afterwards other cases were filed against respondents allegedly by dummies of NASSER and
in which Judge Bullecer of CFI-Davao Oriental also issued writs of preliminary injunction as
follows:
Civil Case No. 174 entitled Renato Cruz, plaintiff versus Sisenando Rivera, Jr., Vicente
Castro, Tomas Centillas, Defendants.
Civil Case No. 175 entitled Felixberto Carios, plaintiff versus Sisenando Rivera, Jr., Rufino
Nasser, Tomas Centillas and Vicente Castro, defendants.
Civil Case No. 176 entitled Jose S. Matute, Rosario S. Matute, Trinidad Matute, Fortunata
Zambrano Matute, plaintiffs versus Sisenando Rivera, Jr., Rufino Nasser, Tomas Centillas,
Vicente Castro, Cesario Udtoman, and Rolando Centillas, defendants.
enjoining the defendants, their agents, and / or representatives and men working under
them to desist from interfering harassing and molesting and taking away the possession of
and management of the five (5) haciendas (which were subject matter of the Order of
Attachment issued in Civil Case No. 3641, CFI-Pampanga). (pp. 226-227, Vol. I, G.R. No. L32946; and pp. 622-633, Vol. II, Ibid. (Emphasis supplied)
In view thereof, upon motion of respondent Canlas, the Court of Appeals issued an
Amended Writ of Preliminary Injunction which likewise enjoined the hearing of Civil Cases
Nos. 140, 174, 175, 176 or any other case brought before the CFI-Davao Oriental by any
party for the purpose of rendering nugatory or ineffective, impeding or obstructing the writ
of preliminary attachment issued by the CFI-Pampanga in Civil Case No. 3641.
On October 10, 1970, the Court of Appeals rendered its decision in CA-G R. No. 44856-R
making permanent the Amended Writ of Preliminary Injunction dated June 16, 1970.
A motion to reconsider said decision was filed by NASSER but the same was denied by the
Court of Appeals on November 3, 1970.
Hence, this petition in G.R. No. L-32946.
G.R. Nos. L-32945 and L-32946 were consolidated in the resolution of January 12, 1971 and
a writ of preliminary injunction was issued in G.R. No. L-32945 enjoining the Court of
Appeals from enforcing its decision dated October 7, 1970 and respondent judge from
continuing the hearing of Civil Case No. 3641 and the Chief of Police of Governor Generoso
from executing the Order of Attachment.
:- nad

Respondents filed a Joint Memorandum in both cases (G.R. No. L-32946, p. 747, Vol. II)
while petitioner failed to file the required memorandum.
The center of the conflict is whether or not the writ of preliminary attachment in Civil Case
No. 3641 (G.R. No. L-32945) issued by the CFI of Pampanga in favor of Canlas may be
enjoined in Civil Case No. 138 (G.R. No. L-32946) by the CFI of Davao Oriental in favor of
Nasser.
The issues common to both G.R. No. L-32945 and L-32946 are: (1) that the venue was
improperly laid, subject Civil Case No. 3641 having been filed in Pampanga instead of in
Manila as stipulated; (2) that the appointment of the Chief of Police of Governor Generoso,
Davao Oriental as Special Sheriff to serve and implement the Order of Attachment was
erroneous; and (3) that the Order of Attachment was not validly issued.
Aside from the fact, that it has already been settled, that stipulations in a contract which
specify a definite place for the institution of an action arising in connection therewith, do
not, as a rule, supersede the general rule on the matter set out in Rule 4 of the Rules of

Court, so that it should be construed merely as an agreement on an additional forum, not as

limiting venue to the specified place (Western Minolco Corporation v. Court of Appeals, 167
SCRA 592 [1988]), Nasser has in effect waived his objection thereto, by: (a) his motion to
dismiss based on the court's lack of authority to issue the Order of Attachment but on the
non-observance of requirements of the Rules; (b) his motion to lift order of default; and (c)
his answer with counterclaim fled in the Court of First Instance of Pampanga. Consequently,
it is immaterial as to whether or not there is a novation of contract in this case.
chanrobles virtual law library

It is likewise evident that respondent judge did not err in deputizing the Chief of Police of
Governor Generoso, as special sheriff under Section 2, Rule 57 of the Revised Rules of Court
where the former is expressly authorized to require not only the sheriff but also other
officers of the province or the sheriffs or other proper officers of different provinces in this
case, the Chief of Police of Governor Generoso, to attach all the properties of the party
against whom it may be issued within the province not exempt from execution.
Finally, it is settled that a verified statement incorporated in the complaint without a
separate affidavit is sufficient and valid to obtain the attachment (Tolentino v. Carla, et al.,
66 Phil. 140-143). Thus, under the same ruling, the verified complaint in the case at bar
entitled "Application for a Writ of Preliminary Attachment" which specifically stated that to
avoid redundancy and repetition, the affidavit of the plaintiffs as required under Section 3,
Rule 57 of the Revised Rules of Court is dispensed with, as the matters to be treated and
contained therein are already incorporated and made part of the complaint, duly verified by
them, has undoubtedly substantially complied with the requirements of the Rules and the
court to which the application for the attachment was filed has jurisdiction to issue the writ
prayed for (Central Capiz v. Salas, 43 Phil., 30 [1922]).
Additional issues raised in G.R. No. L-32946, are: (1) the prematurity of the petition for
certiorari and prohibition and (2) lack of legal standing of Canlas to file this petition.
The certiorari and prohibition case instituted by respondents Chiefs of Police was not filed
prematurely in view of the injunction order issued by the CFI-Davao Oriental enjoining the
further enforcement of the Order of Attachment in Civil Case No. 3641, which injunction
order unduly interfered with the acts of another court of co-equal, coordinate and
concurrent jurisdiction.
:-cralaw

It is doctrinal that no court has the power to interfere by injunction with the judgment or
order of another court of concurrent or coordinate jurisdiction (Ngo Bun Tiong v. Sayo, 163
SCRA 237 [1988]; Investors Finance Corporation v. Ebarle, 163 SCRA 60 [1988];
Municipality of Malolos v. Libangang Malolos, Inc., 164 SCRA 290 [1988]).
Respondents Canlas are aggrieved parties within the meaning of Sections 1 and 2 of Rule
65, Revised Rules of Court even if not made parties nor intervenors in Civil Case No. 138
since they are the plaintiffs in the prior case (Civil Case No. 3641) in whose favor the Order
of Attachment was issued and which order was being enforced by respondents Chiefs of
Police. It is but natural that any interference with or obstruction to the implementation of
said Order of Attachment would work prejudice to them and make them aggrieved parties.
Otherwise stated, respondents Canlas as ruled in a recent case, are real parties in interest
who would be benefitted or injured by the judgment or entitled to the avails of the suit (Lee
v. Romillo, Jr., 161 SCRA 589 [1988]).
In the same manner, the Court of Appeals cannot be faulted by its issuance by mere motion
of respondents Canlas of an Amended Writ of Preliminary Injunction which included Civil
Cases Nos. 140, 174, 175, 176 or any other case brought before the Court of First Instance
of Davao Oriental by any party for the purpose of obstructing or rendering nugatory the
preliminary attachment issued by the Court of First Instance of Pampanga in Civil Case No.
3641. To require the parties to file a new petition or an independent suit for the purpose

would be preposterous, it being the very objection of the petition in CA-G.R. No. 44856-R
where the motion was filed, to enjoin the undue and improper interference of the CFI-Davao
Oriental to the Order of Attachment issued by the CFI-Pampanga.
:- nad

The issuance of an amended writ of preliminary injunction by the Court of Appeals is within
its inherent power to amend and control its processes and orders so as to make them
conformable to law and justice (Section 5(g), Rule 135, Revised Rules of Court).
Undoubtedly, the injunction is essential for the orderly administration of justice and was
sought to avoid multiplicity of suits.
In Government Service Insurance System vs. Hon. Alfredo C. Florendo, etc., et al., G.R. No.
L-48603, September 29, 1989, the High Tribunal ruled that:
". . . The very foundation of the jurisdiction to issue the writ of injunction rests in the
probability of irreparable injury, inadequacy of pecuniary compensation and the prevention
of multiplicity of suit . . ."
PREMISES CONSIDERED, both petitions in G.R. Nos. L-32945 and L-32946 are hereby
DISMISSED for lack of merit and the assailed decisions of the Court of Appeals are hereby
AFFIRMED and the temporary restraining order issued in G.R. No. L-32945 is hereby LIFTED.
SO ORDERED.

HEIRS OF THE LATE SPOUSES FLA VIANO MAGLASANG and SALUD ADAZA-MAGLASANG,
namely, OSCAR A. MAGLASANG, EDGAR A. MAGLASANG, CONCEPCION CHONA A.
MAGLASANG, GLENDA A. MAGLASANG-ARNAIZ, LERMA A. MAGLASANG, FELMA A.
MAGLASANG, FE DORIS A. MAGLASANG, LEOLINO A. MAGLASANG, MARGIE LEILA A.
MAGLASANG,MA. MILALIE A. MAGLASANG, SALUD A. MAGLASANG, and MA. FLASALIE A.
MAGLASANG, REPRESENTING THE ESTATES OF THEIR AFORE-NAMEDDECEASED
PARENTS, Petitioners,
vs.
MANILA BANKING CORPORATION, now substituted by FIRST SOVEREIGN ASSET
MANAGEMENT SPV-AMC, INC. FSAMI, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated July 20, 2005 and
Resolution3 dated January 4, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 50410 which
dismissed petitioners appeal and affirmed the Decision4 dated April 6, 1987 of the Regional Trial
Court of Ormoc City, Branch 12 (RTC) directing petitioners to jointly and severally pay respondent
Manila Banking Corporation the amount of P434,742.36, with applicable interests, representing the
deficiency of the formers total loan obligation to the latter after the extra-judicial foreclosure of the
real estate mortgage subject of this case, including attorneys fees and costs of suit.
The Facts

On June 16, 1975, spouses Flaviano and Salud Maglasang (Sps.Maglasang) obtained a credit line
from respondent5 in the amount of P350,000.00 which was secured by a real estate
mortgage6 executed over seven of their properties7 located in Ormoc City and the Municipality of
Kananga, Province of Leyte.8 They availed of their credit line by securing loans in the amounts
of P209,790.50 and P139,805.83 on October 24, 1975and March 15, 1976, respectively,9 both of
which becoming due and demandable within a period of one year. Further, the parties agreed that
the said loans would earn interest at 12% per annum (p.a.) and an additional 4% penalty would be
charged upon default.10
After Flaviano Maglasang (Flaviano) died intestate on February 14,1977, his widow Salud
Maglasang (Salud) and their surviving children, herein petitioners Oscar (Oscar), Concepcion
Chona, Lerma, Felma, FeDoris, Leolino, Margie Leila, Ma. Milalie, Salud and Ma. Flasalie, all
surnamed Maglasang, and Glenda Maglasang-Arnaiz, appointed11 their brother petitioner Edgar
Maglasang (Edgar) as their attorney-in-fact.12 Thus, on March 30, 1977, Edgar filed a verified petition
for letters of administration of the intestate estate of Flaviano before the then Court of First Instance
of Leyte, Ormoc City, Branch 5 (probate court), docketed as Sp. Proc. No. 1604-0. 13 On August 9,
1977, the probate court issued an Order14 granting the petition, thereby appointing Edgar as the
administrator15 of Flavianos estate.
In view of the issuance of letters of administration, the probate court, on August 30, 1977, issued a
Notice to Creditors16 for the filing of money claims against Flavianos estate. Accordingly, as one of
the creditors of Flaviano, respondent notified17 the probate court of its claim in the amount
of P382,753.19 as of October 11, 1978, exclusive of interests and charges.
During the pendency of the intestate proceedings, Edgar and Oscar were able to obtain several
loans from respondent, secured by promissory notes18 which they signed.
In an Order19 dated December 14, 1978 (December 14, 1978 Order),the probate court terminated the
proceedings with the surviving heirs executing an extra-judicial partition of the properties of
Flavianos estate. The loan obligations owed by the estate to respondent, however, remained
unsatisfied due to respondents certification that Flavianos account was undergoing a restructuring.
Nonetheless, the probate court expressly recognized the rights of respondent under the mortgage
and promissory notes executed by the Sps. Maglasang, specifically, its "right to foreclose the same
within the statutory period."20
In this light, respondent proceeded to extra-judicially foreclose the mortgage covering the Sps.
Maglasangs properties and emerged as the highest bidder at the public auction for the amount
of P350,000.00.21 There, however, remained a deficiency on Sps. Maglasangs obligation to
respondent. Thus, on June 24, 1981, respondent filed a suit to recover the deficiency amount

of P250,601.05 as of May 31, 1981 against the estate of Flaviano, his widow Salud and petitioners,
docketed as Civil Case No. 1998-0.22
The RTC Ruling and Subsequent Proceedings
After trial on the merits, the RTC (formerly, the probate court)23 rendered a Decision24 on April 6, 1987
directing the petitioners to pay respondent, jointly and severally, the amount of P434,742.36 with
interest at the rate of 12% p.a., plus a 4% penalty charge, reckoned from September 5,1984 until
fully paid.25 The RTC found that it was shown, by a preponderance of evidence, that petitioners, after
the extra-judicial foreclosure of all the properties mortgaged, still have an outstanding obligation in
the amount and as of the date as above-stated. The RTC also found in order the payment of
interests and penalty charges as above-mentioned as well as attorneys fees equivalent to 10% of
the outstanding obligation.26
Dissatisfied, petitioners elevated the case to the CA on appeal, contending, 27 inter alia, that the
remedies available to respondent under Section 7, Rule 86 of the Rules of Court (Rules) are
alternative and exclusive, such that the election of one operates as a waiver or abandonment of the
others. Thus, when respondent filed its claim against the estate of Flaviano in the proceedings
before the probate court, it effectively abandoned its right to foreclose on the mortgage. Moreover,
even on the assumption that it has not so waived its right to foreclose, it is nonetheless barred from
filing any claim for any deficiency amount.
During the pendency of the appeal, Flavianos widow, Salud, passed away on July 25, 1997. 28
The CA Ruling
In a Decision29 dated July 20, 2005, the CA denied the petitioners appeal and affirmed the RTCs
Decision. At the outset, it pointed out that the probate court erred when it, through the December 14,
1978 Order, closed and terminated the proceedings in Sp. Proc. No. 1604-0 without first satisfying
the claims of the creditors of the estate in particular, respondent in violation of Section 1, Rule 90
of the Rules.30 As a consequence, respondent was not able to collect from the petitioners and
thereby was left with the option of foreclosing the real estate mortgage. 31 Further, the CA held that
Section 7, Rule 86 of the Rules does not apply to the present case since the same does not involve
a mortgage made by the administrator over any property belonging to the estate of the
decedent.32 According to the CA, what should apply is Act No. 313533 which entitles respondent to
claim the deficiency amount after the extra-judicial foreclosure of the real estate mortgage of Sps.
Maglasangs properties.34
Petitioners motion for reconsideration was subsequently denied in a Resolution 35 dated January 4,
2006. Hence, the present recourse.

The Issue Before the Court

The essential issue in this case is whether or not the CA erred in affirming the RTCs award of the
deficiency amount in favor of respondent.
Petitioners assert36 that it is not Act No. 3135 but Section 7, Rule 86of the Rules which applies in this
case. The latter provision provides alternative and exclusive remedies for the satisfaction of
respondents claim against the estate of Flaviano.37 Corollarily, having filed its claim against the
estate during the intestate proceedings, petitioners argue that respondent had effectively waived the
remedy of foreclosure and, even assuming that it still had the right to do so, it was precluded from
filing a suit for the recovery of the deficiency obligation. 38
Likewise, petitioners maintain that the extra-judicial foreclosure of the subject properties was null
and void, not having been conducted in the capital of the Province of Leyte in violation of the
stipulations in the real estate mortgage contract.39 They likewise deny any personal liability for the
loans taken by their deceased parents.40
The Courts Ruling
The petition is partly meritorious.
Claims against deceased persons should be filed during the settlement proceedings of their
estate.41 Such proceedings are primarily governed by special rules found under Rules 73 to 90 of the
Rules, although rules governing ordinary actions may, as far as practicable, apply
suppletorily.42 Among these special rules, Section 7, Rule 86 of the Rules (Section 7, Rule86)
provides the rule in dealing with secured claims against the estate:
SEC. 7. Mortgage debt due from estate. A creditor holding a claim against the deceased secured
by a mortgage or other collateral security, may abandon the security and prosecute his claim in the
manner provided in this rule, and share in the general distribution of the assets of the estate; or he
may foreclose his mortgage or realize upon his security, by action in court, making the executor or
administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the
mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon
the security, he may claim his deficiency judgment in the manner provided in the preceding section;
or he may rely upon his mortgage or other security alone, and foreclose the same at any time within
the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and
shall receive no share in the distribution of the other assets of the estate; but nothing herein
contained shall prohibit the executor or administrator from redeeming the property mortgaged or
pledged, by paying the debt for which it is held as security, under the direction of the court, if the

court shall adjudged it to be for the best interest of the estate that such redemption shall be made.
(Emphasis and underscoring supplied)
As the foregoing generally speaks of "a creditor holding a claim against the deceased secured by a
mortgage or other collateral security" as above-highlighted, it may be reasonably concluded that the
aforementioned section covers all secured claims, whether by mortgage or any other form of
collateral, which a creditor may enforce against the estate of the deceased debtor. On the contrary,
nowhere from its language can it be fairly deducible that the said section would as the CA
interpreted narrowly apply only to mortgages made by the administrator over any property
belonging to the estate of the decedent. To note, mortgages of estate property executed by the
administrator, are also governed by Rule 89 of the Rules, captioned as "Sales, Mortgages, and
Other Encumbrances of Property of Decedent."
In this accord, it bears to stress that the CAs reliance on Philippine National Bank v. CA 43 (PNB) was
misplaced as the said case did not, in any manner, limit the scope of Section 7, Rule 86. It only
stated that the aforesaid section equally applies to cases where the administrator mortgages the
property of the estate to secure the loan he obtained.44 Clearly, the pronouncement was a ruling of
inclusion and not one which created a distinction. It cannot, therefore, be doubted that it is Section 7,
Rule 86which remains applicable in dealing with a creditors claim against the mortgaged property of
the deceased debtor, as in this case, as well as mortgages made by the administrator, as that in the
PNB case.
Jurisprudence breaks down the rule under Section 7, Rule 86 and explains that the secured creditor
has three remedies/options that he may alternatively adopt for the satisfaction of his indebtedness.
In particular, he may choose to: (a) waive the mortgage and claim the entire debt from the estate of
the mortgagor as an ordinary claim; (b) foreclose the mortgage judicially and prove the deficiency as
an ordinary claim; and (c) rely on the mortgage exclusively, or other security and foreclose the same
before it is barred by prescription, without the right to file a claim for any deficiency.45 It must,
however, be emphasized that these remedies are distinct, independent and mutually exclusive from
each other; thus, the election of one effectively bars the exercise of the others. With respect to real
properties, the Court in Bank of America v. American Realty Corporation46 pronounced:
In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and not
cumulative. Notably, an election of one remedy operates as a waiver of the other. For this purpose, a
remedy is deemed chosen upon the filing of the suit for collection or upon the filing of the complaint
in an action for foreclosure of mortgage, pursuant to the provision of Rule 68 of the 1997 Rules of
Civil Procedure. As to extrajudicial foreclosure, such remedy is deemed elected by the mortgage
creditor upon filing of the petition not with any court of justice but with the Office of the Sheriff of the

province where the sale is to be made, in accordance with the provisions of Act No. 3135, as
amended by Act No.4118.47 (Emphasis supplied)
Anent the third remedy, it must be mentioned that the same includes the option of extra-judicially
foreclosing the mortgage under Act No. 3135,as availed of by respondent in this case. However, the
plain result of adopting the last mode of foreclosure is that the creditor waives his right to recover
any deficiency from the estate.48 These precepts were discussed in the PNB case, citing Perez v.
Philippine National Bank49 which overturned the earlier Pasno v. Ravina ruling:50
Case law now holds that this rule grants to the mortgagee three distinct, independent and mutually
exclusive remedies that can be alternatively pursued by the mortgage creditor for the satisfaction of
his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an
ordinary claim;
(2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and
(3) to rely on the mortgage exclusively, foreclosing the same at anytime before it is barred by
prescription without right to file a claim for any deficiency
In Perez v. Philippine National Bank, reversing Pasno vs. Ravina, we held:
The ruling in Pasno v. Ravina not having been reiterated in any other case, we have carefully
reexamined the same, and after mature deliberation have reached the conclusion that the dissenting
opinion is more in conformity with reason and law. Of the three alternative courses that section 7,
Rule 87 (now Rule 86), offers the mortgage creditor, to wit, (1) to waive the mortgage and claim the
entire debt from the estate of the mortgagor as an ordinary claim; (2) foreclose the mortgage
judicially and prove any deficiency as an ordinary claim; and (3) to rely on the mortgage exclusively,
foreclosing the same at any time before it is barred by prescription, without right to file a claim for
any deficiency, the majority opinion in Pasno v. Ravina, in requiring a judicial foreclosure, virtually
wipes out the third alternative conceded by the Rules to the mortgage creditor, and which would
precisely include extra-judicial foreclosures by contrast with the second alternative.
The plain result of adopting the last mode of foreclosure is that the creditor waives his right to
recover any deficiency from the estate. Following the Perez ruling that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial foreclosure is that the creditor waives any
further deficiency claim. x x x.51 (Emphases and underscoring supplied; italics in the original)

To obviate any confusion, the Court observes that the operation of Act No. 3135 does not entirely
discount the application of Section 7, Rule 86, or vice-versa. Rather, the two complement each other
within their respective spheres of operation. On the one hand, Section 7, Rule 86 lays down the
options for the secured creditor to claim against the estate and, according to jurisprudence, the
availment of the third option bars him from claiming any deficiency amount. On the other hand, after
the third option is chosen, the procedure governing the manner in which the extra-judicial foreclosure
should proceed would still be governed by the provisions of Act No. 3135.Simply put, Section 7, Rule
86 governs the parameters and the extent to which a claim may be advanced against the estate,
whereas Act No. 3135sets out the specific procedure to be followed when the creditor subsequently
chooses the third option specifically, that of extra-judicially foreclosing real property belonging to
the estate. The application of the procedure under Act No. 3135 must be concordant with Section 7,
Rule 86 as the latter is a special rule applicable to claims against the estate, and at the same time,
since Section 7, Rule 86 does not detail the procedure for extra-judicial foreclosures, the formalities
governing the manner of availing of the third option such as the place where the application for
extra-judicial foreclosure is filed, the requirements of publication and posting and the place of sale
must be governed by Act No. 3135.
In this case, respondent sought to extra-judicially foreclose the mortgage of the properties previously
belonging to Sps. Maglasang (and now, their estates) and, therefore, availed of the third option. Lest
it be misunderstood, it did not exercise the first option of directly filing a claim against the estate, as
petitioners assert, since it merely notified52 the probate court of the outstanding amount of its claim
against the estate of Flaviano and that it was currently restructuring the account. 53 Thus, having
unequivocally opted to exercise the third option of extra-judicial foreclosure under Section 7, Rule
86, respondent is now precluded from filing a suit to recover any deficiency amount as earlier
discussed.
As a final point, petitioners maintain that the extra-judicial foreclosure of the subject properties was
null and void since the same was conducted in violation of the stipulation in the real estate mortgage
contract stating that the auction sale should be held in the capital of the province where the
properties are located, i.e., the Province of Leyte.
The Court disagrees.
As may be gleaned from the records, the stipulation under the real estate mortgage 54 executed by
Sps. Maglasang which fixed the place of the foreclosure sale at Tacloban City lacks words of
exclusivity which would bar any other acceptable for a wherein the said sale may be conducted, to
wit:
It is hereby agreed that in case of foreclosure of this mortgage under Act 3135, the auction sale shall
be held at the capital of the province if the property is within the territorial jurisdiction of the province

concerned, or shall be held in the city if the property is within the territorial jurisdiction of the city
concerned; x x x.55
Case law states that absent such qualifying or restrictive words to indicate the exclusivity of the
agreed forum, the stipulated place should only be as an additional, not a limiting venue. 56 As a
consequence, the stipulated venue and that provided under Act No. 3135 can be applied
alternatively.
In particular, Section 2 of Act No. 3135 allows the foreclosure sale to be done within the province
where the property to be sold is situated, viz.:
SEC. 2. Said sale cannot be made legally outside of the province which the property sold is situated;
and in case the place within said province in which the sale is to be made is subject to stipulation,
such sale shall be made in said place or in the municipal building of the municipality in which the
property or part thereof is situated. (Italics supplied) ..
In this regard, since the auction sale was conducted in Ormoc City, which is within the territorial
jurisdiction of the Province of Leyte, then the Court finds sufficient compliance with the above-cited
requirement.
All told, finding that the extra-judicial foreclosure subject of this case was properly conducted in
accordance with the formalities of Act No. 3135,the Court upholds the same as a valid exercise of
respondent's third option under Section 7, Rule 86. To reiterate, respondent cannot, however, file
any suit to recover any deficiency amount since it effectively waived its right thereto when it chose to
avail of extra-judicial foreclosure as jurisprudence instructs.
WHEREFORE, the petition is PARTLY GRANTED. The complaint for the recovery of the deficiency
amount after extra-judicial foreclosure filed by respondent Manila Banking Corporation is hereby
DISMISSED. The extra-judicial foreclosure of the mortgaged properties, however, stands.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
NARCISO SALAS, Petitioners, v.ANNABELLE MATUSALEM, Respondent.
DECISION
VILLARAMA, JR., J.:

Before the Court is a petition for review on certiorari which seeks to reverse and set aside the
Decision1 dated July 18, 2006 and Resolution2 dated October 19, 2007 of the Court of Appeals (CA) in CAG.R. CV No. 64379.
The factual antecedents:
On May 26, 1995, Annabelle Matusalem (respondent) filed a complaint for Support/Damages against Narciso
Salas (petitioner) in the Regional Trial Court (RTC) ofCabanatuan City (Civil Case No. 2124-AF).
Respondent claimed that petitioner is. the father of her son Christian Paulo Salas who was born on
December 28, 1994. Petitioner, already 56 years old at the time, enticed her as she was then only 24 years
old, making her believe that he is a widower. Petitioner rented an apartment where respondent stayed and
shouldered all expenses in the delivery of their child, including the cost of caesarian operation and hospital
confinement. However, when respondent refused the offer of petitioners family to take the child from her,
petitioner abandoned respondent and her child and left them to the mercy of relatives and friends.
Respondent further alleged that she attempted suicide due to depression but still petitioner refused to
support her and their child.
Respondent thus prayed for support pendente lite and monthly support in the amount of P20,000.00, as well
as actual, moral and exemplary damages, and attorneys fees.
Petitioner filed his answer4 with special and affirmative defenses and counterclaims. He described
respondent as a woman of loose morals, having borne her first child also out of wedlock when she went to
work in Italy. Jobless upon her return to the country, respondent spent time riding on petitioners jeepney
which was then being utilized by a female real estate agent named Felicisima de Guzman. Respondent had
seduced a senior police officer in San Isidro and her charge of sexual abuse against said police officer was
later withdrawn in exchange for the quashing of drug charges against respondents brother-in-law who was
then detained at the municipal jail. It was at that time respondent introduced herself to petitioner whom she
pleaded for charity as she was pregnant with another child. Petitioner denied paternity of the child Christian
Paulo; he was motivated by no other reason except genuine altruism when he agreed to shoulder the
expenses for the delivery of said child, unaware of respondents chicanery and deceit designed to
scandalize him in exchange for financial favor.
At the trial, respondent and her witness Grace Murillo testified. Petitioner was declared to have waived his
right to present evidence and the case was considered submitted for decision based on respondents
evidence.
Respondent testified that she first met petitioner at the house of his kumadre Felicisima de Guzman at
Bgy. Malapit, San Isidro, Nueva Ecija. During their subsequent meeting, petitioner told her he is already a
widower and he has no more companion in life because his children are all grown-up. She also learned that
petitioner owns a rice mill, a construction business and a housing subdivision (petitioner offered her a job at
their family-owned Ma. Cristina Village). Petitioner at the time already knows that she is a single mother as
she had a child by her former boyfriend in Italy. He then brought her to a motel, promising that he will take
care of her and marry her. She believed him and yielded to his advances, with the thought that she and her
child will have a better life. Thereafter, they saw each other weekly and petitioner gave her money for her
child. When she became pregnant with petitioners child, it was only then she learned that he is in fact not a
widower. She wanted to abort the baby but petitioner opposed it because he wanted to have another child. 5
On the fourth month of her pregnancy, petitioner rented an apartment where she stayed with a housemaid;
he also provided for all their expenses. She gave birth to their child on December 28, 1994 at the Good
Samaritan Hospital in Cabanatuan City. Before delivery, petitioner even walked her at the hospital room and
massaged her stomach, saying he had not done this to his wife. She filled out the form for the childs birth
certificate and wrote all the information supplied by petitioner himself. It was also petitioner who paid the
hospital bills and drove her baby home. He was excited and happy to have a son at his advanced age who is
his look-alike, and this was witnessed by other boarders, visitors and Grace Murillo, the owner of the
apartment unit petitioner rented. However, on the 18th day after the babys birth, petitioner went to Baguio
City for a medical check-up. He confessed to her daughter and eventually his wife was also informed about
his having sired an illegitimate child. His family then decided to adopt the baby and just give respondent
money so she can go abroad. When she refused this offer, petitioner stopped seeing her and sending money
to her. She and her baby survived through the help of relatives and friends. Depressed, she tried to commit
suicide by drug overdose and was brought to the hospital by Murillo who paid the bill. Murillo sought the
help of the Cabanatuan City Police Station which set their meeting with petitioner. However, it was only

petitioners wife who showed up and she was very mad, uttering unsavory words against respondent. 6
Murillo corroborated respondents testimony as to the payment by petitioner of apartment rental, his weekly
visits to respondent and financial support to her, his presence during and after delivery of respondents baby,
respondents attempted suicide through sleeping pills overdose and hospitalization for which she paid the
bill, her complaint before the police authorities and meeting with petitioners wife at the headquarters. 7
On April 5, 1999, the trial court rendered its decision 8 in favor of respondent, the dispositive portion of which
reads:
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WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the
defendant as follows:
1.

Ordering the defendant to give as monthly support of TWO THOUSAND (P2,000.00)

PESOS for the child Christian Paulo through the mother;

2.

Directing the defendant to pay the plaintiff the sum of P20,000.00 by way of
litigation expenses; and

3.

To pay the costs of suit.

SO ORDERED.9
Petitioner appealed to the CA arguing that: (1) the trial court decided the case without affording him the
right to introduce evidence on his defense; and (2) the trial court erred in finding that petitioner is the
putative father of Christian Paulo and ordering him to give monthly support.
By Decision dated July 18, 2006, the CA dismissed petitioners appeal. The appellate court found no reason
to disturb the trial courts exercise of discretion in denying petitioners motion for postponement on April 17,
1998, the scheduled hearing for the initial presentation of defendants evidence, and the motion for
reconsideration of the said order denying the motion for postponement and submitting the case for decision.
On the paternity issue, the CA affirmed the trial courts ruling that respondent satisfactorily established the
illegitimate filiation of her son Christian Paulo, and consequently no error was committed by the trial court in
granting respondents prayer for support. The appellate court thus held:
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Christian Paulo, in instant case, does not enjoy the benefit of a record of birth in the civil registry which
bears acknowledgment signed by Narciso Salas. He cannot claim open and continuous possession of the
status of an illegitimate child.
It had been established by plaintiffs evidence, however, that during her pregnancy, Annabelle was provided
by Narciso Salas with an apartment at a rental of P1,500.00 which he paid for (TSN, October 6, 1995, p.
18). Narciso provided her with a household help with a salary of P1,500.00 a month (TSN, October 6, 1995,
ibid). He also provided her a monthly food allowance of P1,500.00 (Ibid, p. 18). Narciso was with Annabelle
at the hospital while the latter was in labor, walking her around and massaging her belly (Ibid, p. 11).
Narciso brought home Christian Paulo to the rented apartment after Annabelles discharge from the hospital.
People living in the same apartment units were witnesses to Narcisos delight to father a son at his age
which was his look alike. It was only after the 18th day when Annabelle refused to give him Christian Paulo
that Narciso withdrew his support to him and his mother.
Said testimony of Annabelle aside from having been corroborated by Grace Murillo, the owner of the
apartment which Narciso rented, was never rebutted on record. Narciso did not present any evidence, verbal
or documentary, to repudiate plaintiffs evidence.
In the cases of Lim vs. CA (270 SCRA 1) and Rodriguez vs. CA (245 SCRA 150), the Supreme Court made it
clear that Article 172 of the Family Code is an adaptation of Article 283 of the Civil Code. Said legal provision
provides that the father is obliged to recognize the child as his natural child x x 3) when the child has in his
favor any evidence or proof that the defendant is his father.
In fact, in Ilano vs. CA (230 SCRA 242, 258-259), it was held that

The last paragraph of Article 283 contains a blanket provision that practically covers all the other cases in
the preceding paragraphs. Any other evidence or proof that the defendant is the father is broad enough to
render unnecessary the other paragraphs of this article. When the evidence submitted in the action for
compulsory recognition is not sufficient to meet [the] requirements of the first three paragraphs, it may still
be enough under the last paragraph. This paragraph permits hearsay and reputation evidence, as provided
in the Rules of Court, with respect to illegitimate filiation.
As a necessary consequence of the finding that Christian Paulo is the son of defendant Narciso Salas, he is
entitled to support from the latter (Ilano vs. CA, supra).
It shall be demandable from the time the person who has the right to recover the same needs it for
maintenance x x. (Art. 203, Family Code of the Philippines).10
Petitioner filed a motion for reconsideration but it was denied by the CA.
Hence, this petition submitting the following arguments:

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1. THE VENUE OF THE CASE WAS IMPROPERLY LAID BEFORE THE REGIONAL TRIAL COURT OF CABANATUAN
CITY CONSIDERING THAT BOTH PETITIONER AND RESPONDENT ARE ACTUAL RESIDENTS OF BRGY.
MALAPIT, SAN ISIDRO, NUEVA ECIJA.
2. THE HONORABLE COURT OF APPEALS ERRED IN PRONOUNCING THAT PETITIONER WAS AFFORDED THE
FULL MEASURE OF HIS RIGHT TO DUE PROCESS OF LAW AND IN UPHOLDING THAT THE TRIAL COURT DID
NOT GRAVELY ABUSE ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DECIDED THE INSTANT CASE WITHOUT AFFORDING PETITIONER THE RIGHT TO INTRODUCE EVIDENCE IN
HIS DEFENSE.
3. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE FILIATION OF CHRISTIAN PAULO
WAS DULY ESTABLISHED PURSUANT TO ARTICLE 175 IN RELATION TO ARTICLE 172 OF THE FAMILY CODE
AND EXISTING JURISPRUDENCE AND THEREFORE ENTITLED TO SUPPORT FROM THE PETITIONER. 11
We grant the petition.
It is a legal truism that the rules on the venue of personal actions are fixed for the convenience of the
plaintiffs and their witnesses. Equally settled, however, is the principle that choosing the venue of an action
is not left to a plaintiffs caprice; the matter is regulated by the Rules of Court. 12
In personal actions such as the instant case, the Rules give the plaintiff the option of choosing where to file
his complaint. He can file it in the place (1) where he himself or any of them resides, or (2) where the
defendant or any of the defendants resides or may be found. 13 The plaintiff or the defendant must be
residents of the place where the action has been instituted at the time the action is commenced. 14
However, petitioner raised the issue of improper venue for the first time in the Answer itself and no prior
motion to dismiss based on such ground was filed. Under the Rules of Court before the 1997 amendments,
an objection to an improper venue must be made before a responsive pleading is filed. Otherwise, it will be
deemed waived.15 Not having been timely raised, petitioners objection on venue is therefore deemed
waived.
As to the denial of the motion for postponement filed by his counsel for the resetting of the initial
presentation of defense evidence on April 17, 1998, we find that it was not the first time petitioners motion
for postponement was denied by the trial court.
Records disclosed that after the termination of the testimony of respondents last witness on November 29,
1996, the trial court as prayed for by the parties, set the continuation of hearing for the reception of
evidence for the defendant (petitioner) on January 27, February 3, and February 10, 1997. In the Order
dated December 17, 1996, petitioner was advised to be ready with his evidence at those hearing dates
earlier scheduled. At the hearing on January 27, 1997, petitioners former counsel, Atty. Rolando S. Bala,
requested for the cancellation of the February 3 and 10, 1997 hearings in order to give him time to prepare
for his defense, which request was granted by the trial court which thus reset the hearing dates to March 3,
14 and 17, 1997. On March 3, 1997, upon oral manifestation by Atty. Bala and without objection from
respondents counsel, Atty. Feliciano Wycoco, the trial court again reset the hearing to March 14 and 17,
1997. With the non-appearance of both petitioner and Atty. Bala on March 14, 1997, the trial court upon oral
manifestation by Atty. Wycoco declared their absence as a waiver of their right to present evidence and

accordingly deemed the case submitted for decision.16

On July 4, 1997, Atty. Bala withdrew as counsel for petitioner and Atty. Rafael E. Villarosa filed his
appearance as his new counsel on July 21, 1997. On the same date he filed entry of appearance, Atty.
Villarosa filed a motion for reconsideration of the March 14, 1997 Order pleading for liberality and
magnanimity of the trial court, without offering any explanation for Atty. Balas failure to appear for the
initial presentation of their evidence. The trial court thereupon reconsidered its March 14, 1997 Order,
finding it better to give petitioner a chance to present his evidence. On August 26, 1997, Atty. Villarosa
received a notice of hearing for the presentation of their evidence scheduled on September 22, 1997. On
August 29, 1997, the trial court received his motion requesting that the said hearing be re-set to October
10, 1997 for the reason that he had requested the postponement of a hearing in another case which was
incidentally scheduled on September 22, 23 and 24, 1997. As prayed for, the trial court reset the hearing to
October 10, 1997. On said date, however, the hearing was again moved to December 15, 1997. On February
16, 1998, the trial court itself reset the hearing to April 17, 1998 since it was unclear whether Atty. Wycoco
received a copy of the motion.17
On April 17, 1998, petitioner and his counsel failed to appear but the trial court received on April 16, 1998
an urgent motion to cancel hearing filed by Atty. Villarosa. The reason given by the latter was the scheduled
hearing on the issuance of writ of preliminary injunction in another case under the April 8, 1998 Order
issued by the RTC of Gapan, Nueva Ecija, Branch 36 in Civil Case No. 1946. But as clearly stated in the said
order, it was the plaintiffs therein who requested the postponement of the hearing and it behoved Atty.
Villarosa to inform the RTC of Gapan that he had a previous commitment considering that the April 17, 1998
hearing was scheduled as early as February 16, 1998. Acting on the motion for postponement, the trial court
denied for the second time petitioners motion for postponement. Even at the hearing of their motion for
reconsideration of the April 17, 1998 Order on September 21, 1998, Atty. Villarosa failed to appear and
instead filed another motion for postponement. The trial court thus ordered that the case be submitted for
decision stressing that the case had long been pending and that petitioner and his counsel have been given
opportunities to present their evidence. It likewise denied a second motion for reconsideration filed by Atty.
Villarosa, who arrived late during the hearing thereof on December 4, 1998. 18
A motion for continuance or postponement is not a matter of right, but a request addressed to the sound
discretion of the court. Parties asking for postponement have absolutely no right to assume that their
motions would be granted. Thus, they must be prepared on the day of the hearing. 19Indeed, an order
declaring a party to have waived the right to present evidence for performing dilatory actions upholds the
trial courts duty to ensure that trial proceeds despite the deliberate delay and refusal to proceed on the part
of one party.20
Atty. Villarosas plea for liberality was correctly rejected by the trial court in view of his own negligence in
failing to ensure there will be no conflict in his trial schedules. As we held in Tiomico v. Court of
Appeals21:
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Motions for postponement are generally frowned upon by Courts if there is evidence of bad faith, malice or
inexcusable negligence on the part of the movant. The inadvertence of the defense counsel in failing to take
note of the trial dates and in belatedly informing the trial court of any conflict in his schedules of trial or
court appearances, constitutes inexcusable negligence. It should be borne in mind that a client is bound by
his counsels conduct, negligence and mistakes in handling the case. 22
With our finding that there was no abuse of discretion in the trial courts denial of the motion for
postponement filed by petitioners counsel, petitioners contention that he was deprived of his day in court
must likewise fail. The essence of due process is that a party is given a reasonable opportunity to be heard
and submit any evidence one may have in support of ones defense. Where a party was afforded an
opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due
process. If the opportunity is not availed of, it is deemed waived or forfeited without violating the
constitutional guarantee.23
We now proceed to the main issue of whether the trial and appellate courts erred in ruling that respondents
evidence sufficiently proved that her son Christian Paulo is the illegitimate child of petitioner.
Under Article 175 of the Family Code of the Philippines, illegitimate filiation may be established in the same
way and on the same evidence as legitimate children.
Article 172 of the Family Code of the Philippines states:

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The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws. (Underscoring supplied.)
Respondent presented the Certificate of Live Birth 24 (Exhibit A-1) of Christian Paulo Salas in which the
name of petitioner appears as his father but which is not signed by him. Admittedly, it was only respondent
who filled up the entries and signed the said document though she claims it was petitioner who supplied the
information she wrote therein.
We have held that a certificate of live birth purportedly identifying the putative father is not competent
evidence of paternity when there is no showing that the putative father had a hand in the preparation of the
certificate.25 Thus, if the father did not sign in the birth certificate, the placing of his name by the mother,
doctor, registrar, or other person is incompetent evidence of paternity.26Neither can such birth certificate be
taken as a recognition in a public instrument27 and it has no probative value to establish filiation to the
alleged father.28
As to the Baptismal Certificate29 (Exhibit B) of Christian Paulo Salas also indicating petitioner as the father,
we have ruled that while baptismal certificates may be considered public documents, they can only serve as
evidence of the administration of the sacraments on the dates so specified. They are not necessarily
competent evidence of the veracity of entries therein with respect to the childs paternity.30
The rest of respondents documentary evidence consists of handwritten notes and letters, hospital bill and
photographs taken of petitioner and respondent inside their rented apartment unit.
Pictures taken of the mother and her child together with the alleged father are inconclusive evidence to
prove paternity.31 Exhibits E and F32 showing petitioner and respondent inside the rented apartment unit
thus have scant evidentiary value. The Statement of Account 33 (Exhibit C) from the Good Samaritan
General Hospital where respondent herself was indicated as the payee is likewise incompetent to prove that
petitioner is the father of her child notwithstanding petitioners admission in his answer that he shouldered
the expenses in the delivery of respondents child as an act of charity.
As to the handwritten notes34 (Exhibits D to D-13) of petitioner and respondent showing their exchange
of affectionate words and romantic trysts, these, too, are not sufficient to establish Christian Paulos filiation
to petitioner as they were not signed by petitioner and contained no statement of admission by petitioner
that he is the father of said child. Thus, even if these notes were authentic, they do not qualify under Article
172 (2) vis-- vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation
an admission of filiation in a private handwritten instrument signed by the parent concerned. 35
Petitioners reliance on our ruling in Lim v. Court of Appeals36 is misplaced. In the said case, the handwritten
letters of petitioner contained a clear admission that he is the father of private respondents daughter and
were signed by him. The Court therein considered the totality of evidence which established beyond
reasonable doubt that petitioner was indeed the father of private respondents daughter. On the other hand,
in Ilano v. Court of Appeals,37 the Court sustained the appellate courts finding that private respondents
evidence to establish her filiation with and paternity of petitioner was overwhelming, particularly the latters
public acknowledgment of his amorous relationship with private respondents mother, and private
respondent as his own child through acts and words, her testimonial evidence to that effect was fully
supported by documentary evidence. The Court thus ruled that respondent had adduced sufficient proof of
continuous possession of status of a spurious child.
Here, while the CA held that Christian Paulo Salas could not claim open and continuous possession of status
of an illegitimate child, it nevertheless considered the testimonial evidence sufficient proof to establish his
filiation to petitioner.

An illegitimate child is now also allowed to establish his claimed filiation by any other means allowed by the
Rules of Court and special laws, like his baptismal certificate, a judicial admission, a family Bible in which
his name has been entered, common reputation respecting his pedigree, admission by silence, the
testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of
Court.38 Reviewing the records, we find the totality of respondents evidence insufficient to establish that
petitioner is the father of Christian Paulo.
The testimonies of respondent and Murillo as to the circumstances of the birth of Christian Paulo, petitioners
financial support while respondent lived in Murillos apartment and his regular visits to her at the said
apartment, though replete with details, do not approximate the overwhelming evidence, documentary and
testimonial presented in Ilano. In that case, we sustained the appellate courts ruling anchored on the
following factual findings by the appellate court which was quoted at length in the ponencia:
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It was Artemio who made arrangement for the delivery of Merceditas (sic) at the Manila Sanitarium and
Hospital. Prior to the delivery, Leoncia underwent prenatal examination accompanied by Artemio (TSN, p.
33, 5/17/74). After delivery, they went home to their residence at EDSA in a car owned and driven by
Artemio himself (id. p. 36).
Merceditas (sic) bore the surname of Ilano since birth without any objection on the part of Artemio, the
fact that since Merceditas (sic) had her discernment she had always known and called Artemio as her
Daddy (TSN, pp. 28-29, 10/18/74); the fact that each time Artemio was at home, he would play with
Merceditas (sic), take her for a ride or restaurants to eat, and sometimes sleeping with Merceditas (sic) (id.
p. 34) and does all what a father should do for his child bringing home goodies, candies, toys and
whatever he can bring her which a child enjoys which Artemio gives to Merceditas (sic) (TSN, pp. 38-39,
5/17/74) are positive evidence that Merceditas (sic) is the child of Artemio and recognized by Artemio as
such. Special attention is called to Exh. E-7 where Artemio was telling Leoncia the need for a frog test to
know the status of Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and Merceditas (sic) was sometimes in the form
of cash personally delivered to her by Artemio, thru Melencio, thru Elynia (Exhs. E-2 and E-3, and D-6),
or thru Merceditas (sic) herself (TSN, p. 40, 5/17/74) and sometimes in the form of a check as the Manila
Banking Corporation Check No. 81532 (Exh. G) and the signature appearing therein which was identified
by Leoncia as that of Artemio because Artemio often gives her checks and Artemio would write the check at
home and saw Artemio sign the check (TSN, p. 49, 7/18/73). Both Artemio and Nilda admitted that the
check and signature were those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were living as husband and wife, Artemio has shown concern as
the father of Merceditas (sic). When Merceditas (sic) was in Grade 1 at the St. Joseph Parochial School,
Artemio signed the Report Card of Merceditas (sic) (Exh. H) for the fourth and fifth grading period(s) (Exh.
H-1 and H-2) as the parent of Merceditas (sic). Those signatures of Artemio [were] both identified by
Leoncia and Merceditas (sic) because Artemio signed Exh. H-1 and H-2 at their residence in the presence
of Leoncia, Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28, 10/1/73). x x x.
xxx

xxx

xxx

When Artemio run as a candidate in the Provincial Board of Cavite[,] Artemio gave Leoncia his picture with
the following dedication: To Nene, with best regards, Temiong. (Exh. I). (pp. 19-20, Appellants Brief)
The mere denial by defendant of his signature is not sufficient to offset the totality of the evidence
indubitably showing that the signature thereon belongs to him. The entry in the Certificate of Live Birth that
Leoncia and Artemio was falsely stated therein as married does not mean that Leoncia is not appellees
daughter. This particular entry was caused to be made by Artemio himself in order to avoid
embarrassment.39
In sum, we hold that the testimonies of respondent and Murillo, by themselves are not competent proof of
paternity and the totality of respondents evidence failed to establish Christian Paulos filiation to petitioner.
Time and again, this Court has ruled that a high standard of proof is required to establish paternity and
filiation. An order for recognition and support may create an unwholesome situation or may be an irritant to
the family or the lives of the parties so that it must be issued only if paternity or filiation is established by
clear and convincing evidence.40

Finally, we note the Manifestation and Motion41 filed by petitioners counsel informing this Court that
petitioner had died on May 6, 2010.
The action for support having been filed in the trial court when petitioner was still alive, it is not barred
under Article 175 (2)42 of the Family Code. We have also held that the death of the putative father is not a
bar to the action commenced during his lifetime by one claiming to be his illegitimate child. 43 The rule on
substitution of parties provided in Section 16, Rule 3 of the 1997 Rules of Civil Procedure, thus applies.
SEC. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such
death of the fact thereof, and to give the name and address of his legal representative or representatives.
Failure of counsel to comply with his duty shall be a ground for disciplinary action.
The action must be brought within the same period specified in Article 173, except when the action is based
on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the
alleged parent.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted
within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to
appear within the specified period, the court may order the opposing party, within a specified time to
procure the appointment of an executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated July 18, 2006 and
Resolution dated October 19, 2007 of the Court of Appeals in CA-GR. CV No. 64379 are
herebyREVERSED and SET ASIDE. Civil Case No. 2124-AF of the Regional Trial Court of Cabanatuan City,
Branch 26 is DISMISSED.
No pronouncement as to costs.
SO ORDERED.

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