. Certiorari Rule 45 vs.

Rule 65

Significant Provisions of the Rules:

Sections 4 and 5, Rule 65

Section 2, Rule 45

ANSWER:

The petition for certiorari as a mode of appeal is governed by Rule 45 and

is filed from a judgment or final order of the Regional Trial Court, the
Sandiganbayan or the Court of Appeals, within fifteen (15) days from
notice of the judgment appealed from or of the denial of the motion for new
trial or reconsideration filed in due time on questions of law only (Secs. 1
and 2);
A special civil action for certiorari is governed by Rule 65 and is filed to
annul or modify judgments, orders or resolutions rendered or issued
without or in excess of jurisdiction or with grave abuse of discretion
tantamount to lack or excess of jurisdiction, when there is no appeal nor
any plain, speedy and adequate remedy in the ordinary course of law, to
be filed within sixty (60) days from notice of the judgment, order or
resolution subject of the petition. (Secs. 1 and 4.)

ADDITIONAL ANSWER:

In appeal by certiorari under Rule 45, the petitioner and respondent are
the original parties to the action and the lower court is not impleaded. In
certiorari, under Rule 65, the lower court is impleaded

In appeal by certiorari, the filing of a motion for reconsideration is not

required, while in the special civil action of certiorari; such a motion is
generally required

EJECTMENT:
In an action for unlawful detainer in the Municipal Trial Court (MTC), defendant X

raised in his Answer the defense that plaintiff A is not the real owner of the house
subject of the suit. X filed a counterclaim against A for the collection of a debt of
P80,000 plus accrued interest of P15,000 and attorney's fees of P20,000
1.
2.

Is X's defense tenable?

Does the MTC have jurisdiction over the counterclaim?

SUGGESTED ANSWER:
1. No. X's defense is not tenable if the action is filed by a lessor against lessee.
However, if the right of possession of the plaintiff depends on his ownership then
the defense is tenable.

2. The counterclaim is within the jurisdiction of the Municipal Trial Court

which does not exceed P100,000, because the principal demand is
P80,000,exclusive of interest and attorney's fees. (Sec. 33, B.P. Big. 129, as
amended.) However. Inasmuch as all actions of forc
ible entry and unlawful detainer are subject
to summary procedure and since the counterclaim is only permissive, it cannot
be entertained by the Municipal Court. (Sees.1AU) and 3(A) of Revised Rule on
Summary Procedure.)

CONTEMPT:
In an action for injunction and damages, the plaintiff applied for a temporary
restraining order or (TRO) and preliminary injunction. Upon filing the complaint,
the court issued a TRO and set the application for preliminary injunction for
hearing. As the 20-day lifetime (January 3-23,1993) of the TRO was about to
expire, the court issued and order dated Jan 21,1993 extending the effectivity of
the TRO for another twenty days (January 24,1993 to February 13,1993).
On March 5,1993, the court, after hearing, denied the application for preliminary
injunction
Supposing that on January 28,1993, the defendant committed an act in violation

of the TRO, is he guilty of indirect contempt? Explain.

ANSWER:
No. because in order to constitute indirect contempt, the writ disobeyed must
be lawful. In this case, the court had no authority to extend the effectivity of the
TRO for another twenty days. Consequently, the defendant did not commit
indirect contempt by committing an act on January 28,1993 in violation of TRO.
The extension was null and void.

INTERPLEADER:
QUESTION:
A lost the cashier's check she purchased from XYZ Bank. Upon being notified of
the loss, XYZ Bank immediately issued a "STOP PAYMENT" order. Here comes
B trying to encash that same cashier's check but XYZ Bank refused payment.
As precautionary measure, what remedy may XYZ Bank avail of with respect to
the conflicting claims of A and b over the cashier's check? Explain.

ANSWER:
XYZ Bank may file a complaint for interpleader so that the court may resolve the
conflicting claims of A and B over the cashier's check.
(Interpleader, Rule 62 Sec.1.)