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R E M E D I A L LAW

GENERAL PRINCIPLES
1. Classification of courts in the Philippines:
a. Courts of general jurisdiction:
Those competent
to decide t h e i r own jurisdiction and to take cognizance of
all kinds of cases, unless otherwise provided by the law
or Rules. Example: Regional Trial Courts.
Courts of special or limited jurisdiction:
Those
which have no power to decide t h e i r own jurisdiction and
can only t r y c a s e s p e r m i t t e d b y s t a t u t e . E x a m p l e :
Municipal Trial Courts.
T h e J u v e n i l e a n d Domestic Relations C o u r t s had
the r a n k of C o u r t s of F i r s t Instance b u t were courts of
special jurisdiction. U n d e r B.P. Big. 129, they have been
integrated into t h e Regional Trial Courts as branches
thereof.
b. Courts of original jurisdiction:
Those courts in
which, u n d e r t h e law, actions or proceedings may
originally be commenced.
Courts of appellate jurisdiction:
Courts which have
the power to review on a p p e a l t h e decisions or orders of
a lower court.
c. Superior courts: Courts which have the power of
review or supervision over a n o t h e r and lower court.
Inferior courts: Those which, in relation to another
court, a r e lower in r a n k and subject to review and supervision by t h e l a t t e r .
While, in a generic sense, a court is considered an
inferior court in relation to the powers of another tribunal
higher in rank, in its technical sense and unless otherwise
intended, it was formerly provided t h a t the phrase

REMEDIAL LAW COMPENDIUM

"inferior court" referred to t h e t h e n municipal or city


courts (former Sec. 1, Rule 5, in relation to R.A. 3820
and R.A. 3828), now called Metropolitan, Municipal, and
Municipal Circuit Trial Courts. Note, also, t h a t u n d e r
Sec. 2, Rule 5, t h e t e r m "municipal t r i a l court" as used in
t h e s e r e v i s e d R u l e s i n c l u d e s all o t h e r c o u r t s o f t h e
s a m e r a n k . In legal circles, they a r e also called "courts
of the first level." In some official issuances, the Supreme
Court refers to t h e m as "first level courts."
However, the "inferior courts" whose decisions a r e
subject t o t h e a p p e l l a t e j u r i s d i c t i o n o f t h e S u p r e m e
Court (Sec. 17, R.A. 296) refer to all t h e courts lower
t h a n t h e S u p r e m e Court. The t e r m "lower courts" is now
used for t h a t purpose in t h e 1987 Constitution (Sec. 512],
Art. VIII), in lieu of "inferior courts" used in t h e 1935
and 1973 Constitutions.
d. Courts of record: Those whose proceedings are
enrolled and which are bound to keep a w r i t t e n record
of all trials and proceedings handled by t h e m (see Luzano
vs. Romero, et al, L-33245, Sept. 30, 1971).
Courts not of record: C o u r t s which a r e not required
to k e e p a w r i t t e n record or t r a n s c r i p t of p r o c e e d i n g s
held t h e r e i n .
P r i o r to t h e effectivity of R.A. 6031 on A u g u s t 4,
1969, inferior courts were not of record; but if a municipal
court of t h e capital of a province or a city court tried a
criminal case w h e r e i n the imposable p e n a l t y is
i m p r i s o n m e n t of more t h a n 6 m o n t h s b u t not exceeding
6 y e a r s and/or a fine of more t h a n P200 b u t not exceeding
P6.000, its proceedings were required to be recorded as
its decisions were appealable to t h e Court of Appeals or
t h e S u p r e m e Court (R.A. 296, as a m e n d e d by R.A. 2613
a n d R.A. 3828, Sec. 87[c], last paragraph).
However,
u n d e r R.A. 2613, a m e n d i n g Sec. 45, R.A. 296, all inferior
c o u r t s a r e now r e q u i r e d to record t h e i r proceedings a n d
a r e accordingly courts of record.
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GENERAL PRINCIPLES

e. Constitutional courts:
Those which owe t h e i r
creation and existence to the Constitution and, therefore,
cannot be legislated out of existence or deprived by law
of the jurisdiction and powers unqualifiedly vested in
them by the Constitution. The Supreme Court and the
Sandiganbayan are t h e only courts specifically provided
for in the Constitution. With regard to the latter, the
b e t t e r v i e w i s t h a t t h e S a n d i g a n b a y a n i s only a
c o n s t i t u t i o n a l l y - m a n d a t e d c o u r t since, a l t h o u g h its
existence is provided for in the Constitution, its creation
was by s t a t u t o r y e n a c t m e n t .
Statutory courts:
Those c r e a t e d , organized and
with j u r i s d i c t i o n exclusively d e t e r m i n e d by law.
Accordingly, all o t h e r c o u r t s i n t h e P h i l i p p i n e s a r e
statutory courts.
2. The Court of Tax Appeals created by R.A. 1125
has been held to be a p a r t of the judicial system vested
with special jurisdiction to act only on protests of private
p e r s o n s a d v e r s e l y affected b y t h e t a x , c u s t o m s o r
assessment laws (Ursal vs. CTA, et al., 101 Phil. 209).
On March 30, 2004, said law was amended by R.A.
9282 e x p a n d i n g t h e j u r i s d i c t i o n of t h e Court of Tax
Appeals (CTA) and elevating its rank to the level of a
collegiate court with special jurisdiction, of the same level
as t h e Court of Appeals, and consisting of a Presiding
Justice and 5 Associate Justices who shall sit en banc or
in 2 divisions of 3 justices each. The court shall, inter
alia, h a v e e x c l u s i v e a p p e l l a t e j u r i s d i c t i o n to review
decisions of t h e Commissioner of I n t e r n a l Revenue in
disputes arising from the tax law administered by the
Bureau of I n t e r n a l Revenue, the Regional Trial Courts in
local tax cases, the Commissioner of Customs in matters
administered by the Bureau of Customs, the Central Board
of Assessment Appeals in assessments of real property,
t h e S e c r e t a r y of F i n a n c e and t h e Secretary of Trade
and I n d u s t r y in m a t t e r s specified therein. The decision
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REMEDIAL LAW COMPENDIUM

of said court en banc may be reviewed by t h e Supreme


Court on certiorari p u r s u a n t to Rule 45 of the Rules of
Court (see Appendix CC).
3. The distinction obtaining in o t h e r j u r i s d i c t i o n s
between courts of law and courts of equity, and among
civil, criminal and probate courts, does not apply in t h e
Philippines wherein all courts are courts both of law and
equity (Rustia vs. Franco, 41 Phil. 280; Roa, et al. vs.
CA, et al., L 27294, June 28, 1983; Galman, et al. vs.
Sandiganbayan, et al., G.R. No. 72670, Sept. 12, 1986);
and Regional Trial Courts and, to a limited e x t e n t , t h e
lower courts, exercise jurisdiction, according to t h e case
involved, as civil, criminal or probate courts or courts of
land registration. Before B.P. Big. 129 became operative,
t h e r e w e r e special c o u r t s , s u c h a s t h e J u v e n i l e a n d
Domestic Relations Courts, t h e Circuit C r i m i n a l Courts
and t h e Courts of A g r a r i a n Relations, which w e r e courts
exercising only limited and special jurisdiction.
4. U n d e r our p r e s e n t s t a t u t o r y and j u r i s p r u d e n t i a l
taxonomy, jurisdiction is classified, based on its n a t u r e ,
as follows:
a. General jurisdiction, or t h e power to adjudicate
all controversies except those expressly withheld from the
p l e n a r y p o w e r s of t h e c o u r t ; a n d special or limited
jurisdiction, which r e s t r i c t s t h e court's jurisdiction only
to p a r t i c u l a r cases a n d subject to such limitations as may
be provided by t h e governing law.
b. Original jurisdiction, or t h e power of t h e court to
t a k e judicial cognizance of a case i n s t i t u t e d for judicial
action for the first time u n d e r conditions provided by law;
a n d appellate jurisdiction, or t h e a u t h o r i t y of a court
higher in r a n k to r e e x a m i n e t h e final order or j u d g m e n t
of a lower court which tried t h e case now elevated for
judicial review.
c. Exclusive jurisdiction, or t h e power to adjudicate
a case or proceeding to t h e exclusion of all o t h e r courts
4

GENERAL PRINCIPLES

at t h a t s t a g e ; and concurrent jurisdiction, sometimes


referred to as confluent or coordinate jurisdiction, which
is the power conferred upon different courts, whether of
the same or different r a n k s , to take cognizance at the
same stage of t h e s a m e case in the same or different
judicial territories.
Concurrent original jurisdiction between trial courts
of different r a n k s has in the main been eliminated by
B.P. Big. 129. For instance, there is no more concurrent
j u r i s d i c t i o n in adoption or g u a r d i a n s h i p proceedings
between inferior courts and the present Regional Trial
Courts as was provided by the Judiciary Act with respect
to the former Courts of First Instance, which Act also
provided for concurrence in criminal cases and special
civil actions. However, as among courts of the same rank,
it appears t h a t a p h a s e of concurrent original jurisdiction
still obtains in some instances as, for example, in civil
and criminal cases for libel or the settlement of the estate
of a n o n r e s i d e n t w i t h p r o p e r t i e s in different judicial
regions. Withal, in point of strict law, these situations
are m a t t e r s of venue except in^criminal cases for libel,
s i n c e i n c r i m i n a l p r o c e d u r e , v e n u e is, a s a r u l e ,
jurisdictional. For a discussion of other criminal cases
covered by t h e s a m e r u l e , see t h e P r e l i m i n a r y
Considerations in Criminal Procedure in Volume Two of
this work. Where such concurrence exists, the court first
taking cognizance of the case does so to the exclusion of
the o t h e r courts, although the Supreme Court may order
a t r a n s f e r of venue or place of trial to another court of
competent jurisdiction.
At any r a t e , B.P. Big. 129 provides for concurrent
original j u r i s d i c t i o n between the S u p r e m e Court and
either t h e Court of Appeals or the Regional Trial Courts,
or among all t h r e e courts in certain cases. To illustrate,
the S u p r e m e Court has concurrent original jurisdiction
with t h e Court of Appeals in petitions for the issuance of
writs of certiorari, prohibition and m a n d a m u s against
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REMEDIAL LAW COMPENDIUM

the Regional Trial Courts; with the Court of Appeals and


the Regional Trial Courts over the same petitions against
the inferior courts; and with the Regional Trial Courts
in actions affecting ambassadors, other public m i n i s t e r s
and consuls.
5. Also, u n d e r B.P. Big. 129, delegated jurisdiction
is provided for, i.e., t h e g r a n t of a u t h o r i t y to inferior
courts to hear and determine cadastral and land
registration cases u n d e r certain conditions (see Sec. 34,
infra); and special jurisdiction, which is t h e power of
inferior courts to h e a r and decide petitions for a writ of
habeas corpus or applications for bail in t h e absence of
all the Regional Trial J u d g e s in t h e province or city (see
Sec. 35, infra). T h i s l a t t e r t y p e of j u r i s d i c t i o n w a s
formerly included, with variations, in w h a t was known
as the interlocutory jurisdiction of inferior courts u n d e r
t h e Judiciary Act.
6. M e n t i o n m u s t also be m a d e of t h e territorial
jurisdiction of a court, which refers to t h e geographical
area within which its powers can be exercised. As
already stated, this a s s u m e s importance in criminal cases
wherein considerations of t h e territory vis-a-vis t h e locus
of t h e crime d e t e r m i n e not only t h e venue of t h e case
b u t t h e jurisdiction of t h e court; and, in civil cases, t h e
venue of real or mixed actions. In all cases, t h e S u p r e m e
Court and the Court of Appeals have national jurisdiction;
t h e Regional Trial C o u r t s have regional jurisdiction; a n d
t h e inferior courts have such t e r r i t o r i a l jurisdiction as
may be defined by t h e S u p r e m e Court p u r s u a n t to Sees,
25, 28 and 3 1 , B.P. Big. 129.
Other classifications of original jurisdiction are based
on t h e s u b j e c t - m a t t e r or t h e n a t u r e of t h e action being
t r i e d b y t h e c o u r t , s u c h a s civil, c r i m i n a l , p r o b a t e ,
a d m i r a l t y a n d maritime, juvenile and domestic relations,
a g r a r i a n , a n d land r e g i s t r a t i o n . Most of t h e s e different
a r e a s of jurisdiction a r e exercised by t h e r e g u l a r t r i a l
6

GENERAL PRINCIPLES

courts, since t h e special c o u r t s like t h e circuit c r i m i n a l


courts a n d t h e juvenile a n d domestic relations courts have
been abolished. With respect to t h e latter, domestic cases
are now generally h a n d l e d by t h e newly created Family
Courts, hereinafter discussed.
Other subjects of
controversies r e q u i r i n g special t r a i n i n g a n d knowledge,
such as t a x a t i o n , labor a n d s e c u r i t i e s , a r e h a n d l e d by
quasi-judicial agencies, subject to t h e power of judicial
review by t h e a p p e l l a t e c o u r t s .
7. Jurisdiction and venue are distinguished as
follows:
a. Jurisdiction is the authority to hear and
d e t e r m i n e a case; v e n u e is t h e place w h e r e t h e case is to
be h e a r d or t r i e d .
b. J u r i s d i c t i o n is a m a t t e r of s u b s t a n t i v e law; v e n u e ,
of p r o c e d u r a l law.
c. J u r i s d i c t i o n e s t a b l i s h e s a r e l a t i o n b e t w e e n t h e
court a n d t h e s u b j e c t - m a t t e r ; v e n u e , a r e l a t i o n b e t w e e n
plaintiff a n d d e f e n d a n t , o r p e t i t i o n e r and r e s p o n d e n t .
d. J u r i s d i c t i o n is fixed by law a n d c a n n o t be
conferred by t h e p a r t i e s ; v e n u e may be conferred by t h e
act or a g r e e m e n t of t h e p a r t i e s (Manila Railroad Co. vs.
Attorney-General, 20 Phil.
523).
In c r i m i n a l cases, t h e v e n u e of t h e crime goes into
the t e r r i t o r i a l j u r i s d i c t i o n of t h e court (Lopez vs. Paras,
L-25795, Oct. 29, 1966), hence w h e r e the c r i m i n a l action
is i n s t i t u t e d not in t h e place specified by t h e Rules a n d
declared by t h e s u b s t a n t i v e law as w i t h i n t h e t e r r i t o r i a l
jurisdiction of t h e t r i a l court, t h e motion to q u a s h should
be g r o u n d e d on lack of j u r i s d i c t i o n , a n d not i m p r o p e r
venue.
8. T h e a u t h o r i t y to decide a case and not t h e decision
r e n d e r e d t h e r e i n i s w h a t m a k e s u p jurisdiction. W h e r e
t h e r e is j u r i s d i c t i o n , t h e decision of all q u e s t i o n s a r i s i n g
in t h e case is b u t an exercise of jurisdiction (De la Cruz
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REMEDIAL LAW COMPENDIUM

vs. Moir,
Ramolete,
court may
same time

36 Phil. 213; Associated Labor Union vs.


L-23527, Mar. 31, 1965). Consequently, a
have jurisdiction over t h e case b u t at t h e
act in excess of such jurisdiction.

9. The e r r o r s which a c o u r t may c o m m i t in t h e


exercise of jurisdiction differ from e r r o r s of j u d g m e n t .
T h e f o r m e r is r e v i e w a b l e in an o r i g i n a l a c t i o n for
c e r t i o r a r i , while t h e l a t t e r i s c o r r e c t i b l e b y a p p e a l
(Henderson, et al. vs. Tan, etc., et al., 87 Phil. 466;
Maritime Co. of the Phil. vs. Paredes, L-24811, Mar. 3,
1967; Bulan vs. Masakayan, L-24428, June 26, 1968;
Palma vs. Q & S, Inc., L-20366, May 19, 1986). E r r o r s
of j u r i s d i c t i o n r e n d e r a j u d g m e n t void or, at l e a s t
voidable (see Sec. lfa] and fb], Rule 16; Rule 65), while
e r r o r s of j u d g m e n t are grounds for reversal only if it is
shown t h a t prejudice has been caused thereby (Banco
Espahol-Filipino vs. Palanca, 37 Phil. 821; Bimeda vs.
Perez, et al., 93 Phil. 636).
10. Requisites for t h e exercise of jurisdiction and
how the court acquires such jurisdiction:
a. Jurisdiction over the plaintiff or petitioner:
This
is acquired by t h e filing of t h e complaint, p e t i t i o n or
initiatory pleading before t h e court by t h e plaintiff or
petitioner.
b. Jurisdiction over the defendant or respondent:
This is acquired by the voluntary a p p e a r a n c e or
submission by the defendant or r e s p o n d e n t to the
c o u r t or by coercive p r o c e s s i s s u e d by t h e c o u r t to
him, generally by the service of s u m m o n s
(Sharuff vs.
Bubla, L-17029, Sept. 30,
1964; Aban vs. Enage,
L-30666, Feb. 25, 1983).
c. Jurisdiction over the subject-matter:
This is conferred by law and, unlike jurisdiction over t h e p a r t i e s ,
cannot be conferred on t h e court by t h e v o l u n t a r y act or
a g r e e m e n t of t h e p a r t i e s .

GENERAL PRINCIPLES

d. Jurisdiction over the issues of the case:


This is
d e t e r m i n e d a n d conferred by t h e p l e a d i n g s filed in t h e
case by t h e p a r t i e s , or by t h e i r a g r e e m e n t in a p r e - t r i a l
order or stipulation, or, at t i m e s , by t h e i r implied consent
as by t h e failure of a p a r t y to object to evidence on an
issue not covered by t h e p l e a d i n g s , as provided in Sec. 5,
Rule 10 (see Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
e. Jurisdiction over the res (or t h e p r o p e r t y or t h i n g
which is t h e subject of t h e litigation): This is acquired
by the a c t u a l or c o n s t r u c t i v e s e i z u r e by t h e court of t h e
thing in q u e s t i o n , t h u s placing it in custodia legis, as in
a t t a c h m e n t or g a r n i s h m e n t ; or by provision of law
which recognizes in t h e c o u r t t h e power to deal w i t h t h e
p r o p e r t y o r s u b j e c t - m a t t e r w i t h i n its t e r r i t o r i a l j u r i s diction, a s i n l a n d r e g i s t r a t i o n p r o c e e d i n g s o r s u i t s
involving civil s t a t u s or r e a l p r o p e r t y in t h e P h i l i p p i n e s
of a n o n r e s i d e n t d e f e n d a n t .
In two i n s t a n c e s , t h e c o u r t a c q u i r e s jurisdiction to
try t h e case, even if it h a s not a c q u i r e d jurisdiction over
the p e r s o n of a n o n r e s i d e n t d e f e n d a n t , as long as it h a s
jurisdiction over t h e res, as w h e n t h e action involves t h e
p e r s o n a l s t a t u s of t h e plaintiff or p r o p e r t y in t h e Philippines in w h i c h t h e d e f e n d a n t claims an i n t e r e s t (see
Sec. 15, Rule 14). In s u c h cases, t h e service of s u m m o n s
by p u b l i c a t i o n a n d notice to t h e d e f e n d a n t is m e r e l y
t o c o m p l y w i t h d u e p r o c e s s r e q u i r e m e n t s (Banco
Espanol-Filipino vs. Palanca, 37 Phil. 921; De Midgely
vs. Ferandos, et al., L-34314, May 13, 1975).
Under
Sec. 133 of t h e C o r p o r a t i o n C o d e , w h i l e a f o r e i g n
corporation doing b u s i n e s s in t h e P h i l i p p i n e s w i t h o u t a
license c a n n o t sue or i n t e r v e n e in any action here, it may
be sued or p r o c e e d e d a g a i n s t before our c o u r t s or
administrative tribunals.
11. As a g e n e r a l proposition, t h e jurisdiction of t h e
court is d e t e r m i n e d by t h e s t a t u t e in force at t h e t i m e of
t h e c o m m e n c e m e n t of t h e action (People vs. Paderna,
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REMEDIAL LAW COMPENDIUM

L-28518, Jan. 29, 1968; People vs. Mariano, et al.,


L-40527, June 30, 1976; Lee, et al. vs. Presiding Judge,
etc., et al, G.R. No. 68789, Nov. 10, 1986), unless such
s t a t u t e provides for its retroactive application, as w h e r e
it is a c u r a t i v e legislation (Atlas Fertilizer Corp. vs.
Navarro, etc., et al., G.R. No. 72074, April 30, 1987).
12. The settled rule is t h a t the jurisdiction of t h e
court over t h e subject-matter is d e t e r m i n e d by t h e alleg a t i o n s of t h e c o m p l a i n t (Edward J. Nell & Co. vs.
Cubacub, L-20843, June 23, 1965; Time, Inc. vs. Reyes,
et al., L-28882, May 31, 1971; Ganadin vs. Ramos, et
al., L-23547, Sept. 11, 1980), b u t t h i s rule is not w i t h o u t
exceptions. T h u s , it was held t h a t while t h e allegations
in the complaint make out a case for forcible e n t r y , w h e r e
tenancy is averred by way of defense and is proved to be
the real issue, t h e case should be dismissed for lack of
jurisdiction as t h e case should properly be filed w i t h t h e
t h e n C o u r t of A g r a r i a n R e l a t i o n s (Ignacio vs. CFI of
Bulacan, L-27897, Oct. 29, 1971).
However, w i t h t h e
integration of the courts of a g r a r i a n relations as b r a n c h e s
of t h e Regional Trial C o u r t s u n d e r B.P. Big. 129, t h e
case w a s r e q u i r e d to be filed w i t h t h e c o r r e s p o n d i n g
Regional T r i a l Court if it w a s w i t h i n t h e j u r i s d i c t i o n
thereof, for a s s i g n m e n t to t h e a p p r o p r i a t e b r a n c h . Also,
although the allegations in t h e complaint make out a case
cognizable by a Regional Trial Court, w h e r e , however,
the acts complained of are shown at the trial to be
interwoven with an unfair labor practice case, t h e action
should be dismissed since jurisdiction is vested in t h e
National Labor Relations Commission. This is so since
t h e Rules now p e r m i t a motion to dismiss based upon
facts not alleged in the complaint (Mindanao Rapid Co.,
Inc. vs. Omandam, et al., L-23058, Nov. 27, 1971, jointly
d e c i d i n g t h e r e i n L-23473, 23871, 24232, 24718 a n d
24956).
13. Where t h e complaint is for a c t u a l d a m a g e s of
P978, b u t t h e o t h e r claims for d a m a g e s a n d a t t o r n e y ' s
10

GENERAL PRINCIPLES

fees bring t h e t o t a l relief s o u g h t to more t h a n P 10,000


(which was t h e n t h e j u r i s d i c t i o n a l limit for civil cases in
the inferior courts), t h e t o t a l i t y of said claims p u t s t h e
case w i t h i n t h e j u r i s d i c t i o n of t h e t h e n C o u r t of F i r s t
Instance and the trial court erred in dismissing the
complaint upon its m e r e impression t h a t t h e o t h e r claims
were "bloated" for t h e p u r p o s e of invoking its jurisdiction,
w i t h o u t h e a r i n g a n d p r o o f of s u c h fact (Enerio vs.
Alampay, L-40010, May 26, 1975; Ratila vs. Tapucar,
L-45018, Jan. 24, 1977).
T h i s doctrine is still applicable
subject t o t h e i n c r e a s e d j u r i s d i c t i o n a l a m o u n t u n d e r
B.P. Big. 129 a n d s u b s e q u e n t legislation.
14. The j u r i s d i c t i o n of a court, w h e t h e r in c r i m i n a l
or civil c a s e s , once it a t t a c h e s c a n n o t be o u s t e d by
s u b s e q u e n t h a p p e n i n g s or e v e n t s a l t h o u g h of a charact e r w h i c h w o u l d h a v e p r e v e n t e d j u r i s d i c t i o n from
a t t a c h i n g in t h e first i n s t a n c e (Ramos, et al. vs. Central
Bank, L-29352, Oct. 4, 1971, a n d c a s e s t h e r e i n cited;
Dioquino vs. Cruz, et al., L-38579, Sept. 9, 1982) a n d it
r e t a i n s j u r i s d i c t i o n u n t i l it finally disposes of t h e case
(Republic vs. Pielago, et al., G.R. No. 72218, July 21,
1986).
15. The c o n s t i t u t i o n a l i t y of a s t a t u t e m u s t be questioned a t t h e e a r l i e s t o p p o r t u n i t y , except i n c r i m i n a l
cases w h e r e t h e q u e s t i o n may be r a i s e d at any s t a g e and,
in civil c a s e s , if t h e d e t e r m i n a t i o n of t h e q u e s t i o n is
necessary for t h e decision of t h e case, even if r a i s e d for
the first t i m e on a p p e a l . A c o n s t i t u t i o n a l question will
also be considered by t h e a p p e l l a t e court at any t i m e if it
involves t h e j u r i s d i c t i o n of t h e court a quo. The s a m e
rule applies to o r d i n a n c e s (San Miguel Brewery, Inc. vs.
Magno, L 21879, Sept. 9, 1967).
16. Basic in t h e law on procedure is t h e doctrine t h a t
the jurisdiction of a c o u r t over t h e s u b j e c t - m a t t e r of an
action is conferred only by t h e C o n s t i t u t i o n or t h e law
and t h a t t h e Rules of C o u r t yield to s u b s t a n t i v e law, in
11

REMEDIAL LAW COMPENDIUM

this case, the Judiciary Act and B.P. Big. 129, both as
a m e n d e d , a n d of w h i c h j u r i s d i c t i o n is only a p a r t .
J u r i s d i c t i o n c a n n o t be fixed by t h e a g r e e m e n t of t h e
parties; it cannot be acquired t h r o u g h , or waived, enl a r g e d or d i m i n i s h e d by, any act or omission of t h e
p a r t i e s ; neither can it be conferred by the acquiescence
of t h e court (De Jesus, et al. vs. Garcia, et al., L-26816,
Feb. 28, 1967; Calimlim, et al. vs. Ramirez, et al.,
L-34363, Nov. 19, 1982). Jurisdiction m u s t exist as a
m a t t e r of law (People vs. Casiano, L-15309, Feb. 16,
1961). Consequently, questions of jurisdiction may be
raised for t h e first time on a p p e a l even if such issue
w a s not r a i s e d in t h e l o w e r c o u r t (Government vs.
American Surety Co., 11 Phil. 203; Vda. de Roxas vs.
Rafferty, 37 Phil. 957; People vs. Que Po Lay, 94 Phil.
640). A court can motu proprio dismiss a case which is
outside its jurisdiction (Sec. 1, Rule 9).
17. N e v e r t h e l e s s , in some c a s e s , t h e p r i n c i p l e of
estoppel by laches h a s been availed of by our a p p e l l a t e
courts to bar a t t a c k s on jurisdiction a n d t h i s principle
h a s been applied to both civil a n d criminal cases, t h u s :
a.
In t h e early case of Santiago, et al. vs. Valenzuela
(78 Phil. 397), it was held t h a t if a motion to dismiss t h e
appeal, on t h e ground t h a t said a p p e a l was perfected out
of time, is filed for t h e first time w i t h t h e appellate court
after t h e a p p e l l a n t had paid t h e docket fee and t h e cost
of p r i n t i n g t h e record on appeal, and after the filing of
a p p e l l a n t ' s brief, t h e a p p e l l a t e court should deny t h e
motion as t h e appellee may be considered in estoppel by
his failure to object on time.
This doctrine was subsequently abandoned in
Miranda vs. Guanzon (92 Phil. 168) since t h e "requirem e n t r e g a r d i n g t h e perfection of an a p p e a l w i t h i n t h e
r e g l e m e n t a r y period is not only m a n d a t o r y b u t j u r i s dictional," a ruling subsequently r e i t e r a t e d in Garganta
vs. CA (105 Phil. 412), Valdez vs. Ocumen (106 Phil.
12

GENERAL PRINCIPLES

929), Galima vs. CA (L-21046, J a n . 3 1 , 1966), Antique


Sawmills, Inc. vs. Zayco (L-20051, May 30, 1966), Roque
vs. Vdo. de Del Rosario (L-24873, Sept. 23, 1966) and
Arellano, et al. vs. CA, et al. (L-31856, Nov. 24, 1972).
b. In t h e l a t e r case, however, of Tijam vs. Sibonghanoy, et al. (L-21450, April 15, 1968), t h e co-defendant
surety c o m p a n y n e v e r r a i s e d t h e issue of j u r i s d i c t i o n in
the Court of F i r s t I n s t a n c e d e s p i t e s e v e r a l o p p o r t u n i t i e s
to do so a n d , a l t h o u g h t h e claim being for only 1*1,908,
the case w a s w i t h i n t h e exclusive original jurisdiction
of the m u n i c i p a l court. It w a s only after t h e court of
Appeals h a d affirmed t h e decision of t h e t r i a l court in
favor o f t h e p l a i n t i f f b u t b e f o r e t h e f i n a l i t y o f t h i s
decision of t h e C o u r t of A p p e a l s t h a t t h e co-defendant
surety c o m p a n y filed its motion to d i s m i s s on t h e ground
of lack of o r i g i n a l j u r i s d i c t i o n of t h e t r i a l court. Denying
said m o t i o n , t h e S u p r e m e C o u r t s t a t e d : "Were w e t o
sanction s u c h c o n d u c t on its p a r t , we would in effect be
declaring as useless all t h e proceedings had in t h e p r e s e n t
case since it w a s commenced on J u l y 19, 1948 a n d compel
the j u d g m e n t c r e d i t o r s to go up t h e i r Calvary once more.
The inequity a n d u n f a i r n e s s of t h i s is not only p a t e n t
but revolting." I t f u r t h e r s t a t e d t h a t "after v o l u n t a r i l y
s u b m i t t i n g a c a u s e a n d e n c o u n t e r i n g an a d v e r s e decision
on t h e m e r i t s , it is too l a t e for t h e loser to q u e s t i o n t h e
jurisdiction or p o w e r of t h e court . . . it is not r i g h t for
a p a r t y who h a s affirmed a n d invoked t h e jurisdiction
of a court in a p a r t i c u l a r m a t t e r to s e c u r e an affirmative
relief, t o a f t e r w a r d s d e n y t h a t s a m e j u r i s d i c t i o n t o
escape a p e n a l t y , " citing Pindangan, etc. vs. Dans, et al.
(L-14591, S e p t . 26, 1962), Young Men's Labor Union,
etc. vs. CIR, et al. (L-20307, Feb. 26, 1965) a n d Mejia
vs. Lucas (100 Phil. 277). See also Capilitan vs. De la
Cruz, (L-29536-37, F e b . 28, 1974), Summit Guaranty vs.
CA, et al. (G.R. No. 51139, Dec. 14, 1981), Tajonera, et
al. vs. Lumaroza, et al. (L-48907 & L-49035, Dec. 19,
1981),
Nieva vs. Manila Banking Corp.
(L-30811,
13

REMEDIAL LAW COMPENDIUM

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


No. 6 0 5 4 4 , May 19, 1984), a n d Medijia vs. Patcho
(L-30310, Oct. 23, 1984).
c. In Rodriguez vs. CA (L-29264, Aug. 29, 1969), the
action involved property worth more t h a n P200.000, at
t h a t time within the exclusive appellate jurisdiction of the
Supreme Court. Despite several opportunities to raise t h a t
issue in the Court of Appeals where the appeal was taken,
defendant did not challenge t h e appellate jurisdiction of
t h e court and did so only after decision w a s r e n d e r e d
therein against him. He raised the issue of jurisdiction,
for the nullification of the decision of the Court of Appeals,
when t h e case was on appeal in the Supreme Court. The
S u p r e m e C o u r t denied his plea u n d e r t h e doctrine of
estoppel by laches.
d. The same ruling was applied in Crisostomo vs.
CA, et al. (L-27166, Mar. 25, 1970) and Libudan vs. Gil
(L-21163, May 17, 1972) u n d e r t h e j u s t i f i c a t i o n t h a t
"the principle of estoppel is in t h e i n t e r e s t of a sound
administration of t h e laws," citing the Tijam case. The
S u p r e m e Court pointed out t h a t the doctrine of laches is
"based upon grounds of public policy which requires, for
the peace of society, the discouragement of stale claims"
and "is principally a question of t h e inequity or unfairn e s s of p e r m i t t i n g a r i g h t or claim to be enforced or
asserted."
e. In Sarmiento vs. Salud (L-25211, Aug. 18, 1972),
t h e S u p r e m e Court, in resolving t h e motion for reconsideration filed t h e r e i n , held t h a t while it is t r u e t h a t
a record on a p p e a l m u s t show on its face t h a t it was
perfected on time and such r e q u i r e m e n t is jurisdictional
in n a t u r e , nevertheless if t h e record on appeal does not
comply with this r e q u i r e m e n t but the motion to dismiss
the appeal is filed more t h a n 6 months after t h e appellee
filed his brief, t h e motion should be denied.
The same ruling was applied in Dequito vs. Lopez
(L-27757, Mar. 28, 1968) involving virtually t h e same set
14

GENERAL PRINCIPLES

of facts. These r u l i n g s would still apply in cases w h e r e i n


a record on a p p e a l is r e q u i r e d , as w h e r e multiple a p p e a l s
are allowed or in special p r o c e e d i n g s .
f. In Vera vs. People (L-31218, F e b . 18, 1970), it
was held t h a t while a j u d g m e n t is null a n d void w h e r e it
was p r o m u l g a t e d w h e n t h e p r e s i d i n g j u d g e h a d a l r e a d y
ceased to hold office, since t h e accused failed to raise t h a t
issue in t h e t r i a l court a n d only did so after t h e C o u r t of
Appeals h a d r e n d e r e d a j u d g m e n t a d v e r s e to h i m , it
would be an injustice if all t h e proceedings h a d in t h e
case would be s e t aside since, after all, t h e court t h a t
r e n d e r e d s e n t e n c e w a s one o f c o m p e t e n t j u r i s d i c t i o n .
The case of Carillo vs. Allied Workers' Association of the
Philippines (L-23689, J u l y 3 1 , 1968) w a s cited in s u p p o r t
of this ruling.
g. In People vs. Casuga (L-37642, Oct. 22, 1973),
the accused was convicted of grave slander, which
offense w a s w i t h i n t h e c o n c u r r e n t j u r i s d i c t i o n of t h e
then C o u r t s o f F i r s t I n s t a n c e a n d t h e m u n i c i p a l c o u r t s
of c a p i t a l s of p r o v i n c e s or t h e City C o u r t s . I n s t e a d of
appealing to t h e t h e n C o u r t of A p p e a l s or t h e S u p r e m e
Court, as would h a v e b e e n p r o p e r , he a p p e a l e d to t h e
Court of F i r s t I n s t a n c e w h i c h affirmed said conviction.
On his s u b s e q u e n t challenge to t h e a p p e l l a t e jurisdiction
exercised by t h e C o u r t of F i r s t I n s t a n c e , t h e S u p r e m e
Court held t h a t t h e a c c u s e d , h a v i n g t a k e n his a p p e a l
to the C o u r t of F i r s t I n s t a n c e , is in estoppel to challenge
the a p p e l l a t e j u r i s d i c t i o n of t h e said court.
h. In People vs. Tamani ( L - 2 2 1 6 0 - 6 1 , J a n . 2 1 ,
1974), a l t h o u g h t h e a p p e a l of t h e accused w a s demonstrably filed out of t i m e , t h e S u p r e m e C o u r t n e v e r t h e l e s s
reviewed t h e case a n d r e n d e r e d a j u d g m e n t on t h e m e r i t s
thereof, while declaring in t h e same decision t h e dismissal
of the appeal, in view of t h e fact t h a t t h e filing of t h e
appeal out of t i m e w a s due to t h e fault of t h e defense
counsel a n d t h e f u r t h e r c o n s i d e r a t i o n t h a t t h e briefs for
the p a r t i e s h a d a l r e a d y b e e n filed.
16

REMEDIAL LAW COMPENDIUM

i.
The d o c t r i n e laid down in Tijam vs. Sibonghanoy, supra, has been r e i t e r a t e d in many succeeding
cases and is still good case law. The rule up to now is
t h a t a p a r t y ' s active participation in all s t a g e s of a case
before the trial court, which includes invoking t h e court's
a u t h o r i t y to g r a n t affirmative relief, effectively estops
such p a r t y from l a t e r c h a l l e n g i n g t h e j u r i s d i c t i o n of
t h e s a i d c o u r t (Gonzaga, et al. vs. CA, et al., G.R.
No. 144025, Dec. 27, 2002).
j.
See, moreover, the summary in Figueroa vs. People
of the Philippines (G.R. No. 147406, J u l y 14, 2008) which
apparently presents the prevailing position of the Supreme
Court on the issue of when a litigant is estopped by laches
from assailing t h e jurisdiction of a court, in light of its
other and subsequent holdings on the m a t t e r .
18. J u r i s d i c t i o n over a person may also be acquired
even if he was never impleaded nor s u m m o n e d in t h e
action as a d e f e n d a n t if he t h e r e a f t e r v o l u n t a r i l y
s u b m i t t e d himself to t h e jurisdiction of t h e court. T h u s ,
w h e r e t h e spouses v o l u n t a r i l y signed t h e compromise
agreement to guarantee the payment by the original
impleaded defendants, and t h a t compromise a g r e e m e n t
was approved and made the basis of the j u d g m e n t
r e n d e r e d by t h e court, said spouses a r e bound by t h e
j u d g m e n t as they are in estoppel to deny t h e very a u t h o rity which they invoked. By v o l u n t a r i l y e n t e r i n g into
t h e compromise a g r e e m e n t , they effectively s u b m i t t e d
t h e m s e l v e s to t h e jurisdiction of t h e court (Rodriguez,
et al. vs. Alikpala, et al., L 38314, June 25, 1974).
19. S i n c e a C o u r t o f F i r s t I n s t a n c e ( n o w , t h e
R e g i o n a l T r i a l C o u r t ) is a c o u r t of g e n e r a l o r i g i n a l
jurisdiction, w h e t h e r a p a r t i c u l a r m a t t e r should be
resolved by it in t h e exercise of its g e n e r a l jurisdiction,
or in its limited j u r i s d i c t i o n as a p r o b a t e or land
r e g i s t r a t i o n court, is not a j u r i s d i c t i o n a l q u e s t i o n b u t
a p r o c e d u r a l q u e s t i o n i n v o l v i n g a m o d e of p r a c t i c e
16

GENERAL PRINCIPLES

which, therefore, m a y be waived (Manalo vs. Mariano,


et al., L-33850, Jan. 22, 1976; Santos vs. Banayo,
L-31854, Sept. 9, 1982). P a r e n t h e t i c a l l y , S e c . 2 of
P.D. 1529 h a s e l i m i n a t e d t h e d i s t i n c t i o n b e t w e e n t h e
general jurisdiction of a Regional T r i a l C o u r t a n d t h e
limited jurisdiction conferred upon it by t h e former law
when acting as a c a d a s t r a l c o u r t (Ligon vs. CA, et al.,
G.R. No. 107751, June 1, 1995). However, t h e holding
t h a t such s i t u a t i o n s p r e s e n t only p r o c e d u r a l , a n d not
jurisdictional, q u e s t i o n s still a p p l i e s .
20. Q u e s t i o n s involving o w n e r s h i p of or title to real
property should be l i t i g a t e d in an o r d i n a r y civil action
or in t h e proceeding w h e r e t h e i n c i d e n t properly belongs,
before a court of g e n e r a l j u r i s d i c t i o n a n d not before a
land r e g i s t r a t i o n c o u r t (Santos vs. Aquino, L-32949,
Nov. 28, 1980).
2 1 . Statutes regulating the procedure of the courts
will be c o n s t r u e d as applicable to actions p e n d i n g a n d
u n d e t e r m i n e d at t h e t i m e of t h e i r p a s s a g e , b u t not to
actions which h a v e a l r e a d y become final a n d executory
(Borre, et al. vs. CA, et al., G.R. No. 57204, Mar. 14,
1988). P r o c e d u r a l laws a r e r e t r o s p e c t i v e in t h a t sense
and to t h a t e x t e n t (People vs. Sumilang, 77 Phil. 764;
Liam Law vs. Olympic Sawmill Co., et al., L-30771,
May 26, 1984; Yakult Philippines, et al. vs. CA, et al.,
G.R. No. 91856, Oct. 5, 1990). T h u s , t h e provision of
B.P. Big. 129 which e l i m i n a t e d t h e need for a record on
appeal was given retroactive effect to authorize the giving
o f due c o u r s e t o a n a p p e a l , w h i c h s h o u l d h a v e b e e n
perfected in 1982 w i t h t h e r e q u i r e d record on appeal, by
relieving t h e a p p e l l a n t of t h e need therefor in line w i t h
the change of p r o c e d u r e u n d e r B.P. Big. 129 (Alday vs.
Camilon, G.R. No. 60316, Jan. 31, 1983; Ouano vs. CA,
et al., L-44823, June 27, 1985; De Guzman, et al. vs.
CA, et al, G.R. No. 52733, July 23, 1985; Lagunzad vs.
CA, et al, G.R. No. 52007, Sept. 24, 1987; Mun. Gov't of

17

REMEDIAL LAW COMPENDIUM

Coron vs. Carino, et al., G.R. No. 65896, Sept. 24, 1987;
Sarmiento vs. Gatmaitan, et al., L-38173, Nov. 12, 1987).
However, new court rules apply to p e n d i n g cases
only with reference to proceedings t h e r e i n which t a k e
place after t h e d a t e of t h e i r effectivity. They do not
apply to the extent t h a t in t h e opinion of t h e court t h e i r
application would not be feasible or would work injustice,
in which event the former procedure shall apply. T h u s ,
where t h e application of the Rule on S u m m a r y Procedure
will m e a n t h e dismissal of the appeal of t h e p a r t y , t h e
s a m e should not apply since, after all, t h e p r o c e d u r e
t h e y a v a i l e d of w a s also allowed u n d e r t h e R u l e s of
Court
(Laguio, et al. vs. Garnet, et al., G.R. No. 74903,
Mar. 21, 1980).
22. S u b s t a n t i v e law is t h a t p a r t of t h e law which
c r e a t e s r i g h t s concerning life, liberty or property, or t h e
p o w e r s of i n s t r u m e n t a l i t i e s for t h e a d m i n i s t r a t i o n of
p u b l i c affairs (Primicias vs. Ocampo, 81 Phil. 650).
Procedural law refers to the adjective laws which prescribe
rules a n d forms of procedure in order t h a t courts may be
able to a d m i n i s t e r justice (Lopez vs. Gloria, 40 Phil. 33).
S u b s t a n t i v e law c r e a t e s , defines a n d r e g u l a t e s r i g h t s ,
as opposed to "adjective or remedial law" which prescribes
t h e method of enforcing t h e r i g h t s or obtaining r e d r e s s
for t h e i r i n v a s i o n (Black's Law Dictionary, 6th Ed.,
p. 1429; citations omitted).
Procedure is t h e mode of proceeding by which a legal
r i g h t is enforced, as d i s t i n g u i s h e d from t h e law which
gives or defines t h e right, a n d which, by m e a n s of t h e
proceeding, t h e court is to a d m i n i s t e r . This t e r m is commonly opposed to t h e s u m of legal principles c o n s t i t u t i n g
t h e s u b s t a n c e of t h e law, and denotes t h e body of rules,
w h e t h e r of practice or pleading, whereby rights are
effectuated t h r o u g h t h e successful a p p l i c a t i o n of t h e
proper remedies (op. cit., pp. 1367-1368; id.).

GENERAL PRINCIPLES

In d e t e r m i n i n g w h e t h e r a r u l e p r e s c r i b e d by t h e
S u p r e m e C o u r t abridges, e n l a r g e s or modifies any
substantive right, the test is whether the rule really
r e g u l a t e s p r o c e d u r e , t h a t is, t h e judicial process for
enforcing rights and duties recognized by the substantive
law a n d for j u s t l y a d m i n i s t e r i n g r e m e d y a n d r e d r e s s for
a d i s r e g a r d or infraction of t h e m . If t h e r u l e t a k e s a w a y
a vested r i g h t , it is not p r o c e d u r a l . If t h e r u l e c r e a t e s a
right, s u c h as t h e r i g h t to a p p e a l , it may be classified as
a s u b s t a n t i v e m a t t e r ; b u t if it operates as a means of
implementing an existing right,
then the rule deals
merely with procedure (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
It is, t h e r e f o r e , t h e n a t u r e a n d t h e p u r p o s e of t h e
law w h i c h d e t e r m i n e s w h e t h e r i t i s s u b s t a n t i v e o r
procedural, a n d not its place in t h e s t a t u t e or its inclusion
in a code. T h u s , for i n s t a n c e , A r t s . 539 and 1674 of t h e
Civil Code a n d Sec. 85, R.A. 296 provided injunctive r u l e s
i n e j e c t m e n t cases i n t h e t r i a l a n d a p p e l l a t e s t a g e s , b u t
these have b e e n properly incorporated with modifications
as Sees. 8 a n d 9, r e s p e c t i v e l y , of Rule 70 of t h e 1964
Rules of C o u r t (now, Sec. 15 of revised Rule 70). T h e s e
s u b s e q u e n t a m e n d a t o r y provisions on injunctions were
proper since t h e m e r e fact t h a t those provisions on injunctions w e r e formerly included in a s u b s t a n t i v e s t a t u t e
or code does not c o n v e r t t h e m into or d e t r a c t from t h e
fact t h a t t h e y a r e p r o c e d u r a l laws, c o n t r a r y t o common
m i s i m p r e s s i o n . I n fact, t h e r e a r e m a n y such p r o c e d u r a l
rules found in t h e Civil Code or, for t h a t m a t t e r , in o t h e r
codes o r b a s i c a l l y s u b s t a n t i v e l a w s b u t t h e y d o n o t
t h e r e b y lose t h e i r c h a r a c t e r a s p r o c e d u r a l laws.
T h i s m a t t e r is being clarified a n d e m p h a s i z e d h e r e
in view of t h e C o n s t i t u t i o n a l provision t h a t t h e r u l e s
which t h e S u p r e m e C o u r t is a u t h o r i z e d to p r o m u l g a t e
shall not d i m i n i s h , i n c r e a s e or modify s u b s t a n t i v e r i g h t s
(Sec. 5 [5], Art. VIII, 1987 Constitution). The improbable
position t h a t a clearly p r o c e d u r a l provision becomes a
19

REMEDIAL LAW COMPENDIUM

s u b s t a n t i v e law by the mere fact t h a t it is included in a


c o m p i l a t i o n , codification o r s t a t u t o r y e n a c t m e n t o f
s u b s t a n t i v e r i g h t s , a l t h o u g h only to i n d i c a t e t h e
r e m e d i a l c o m p l e m e n t for t h e e n f o r c e m e n t t h e re o f ,
would effectively s u b v e r t the Constitutional i n t e n t and
d i m i n i s h t h e scope and e x t e n t of t h e r u l e - m a k i n g
power of t h e S u p r e m e Court.

20

I.

CIVIL P R O C E D U R E

A. PRELIMINARY CONSIDERATIONS
1. The s t u d y of civil p r o c e d u r e includes o r d i n a r y
civil a c t i o n s , s p e c i a l c i v i l a c t i o n s a n d p r o v i s i o n a l
r e m e d i e s . Special civil actions a r e governed by specific
and individual rules supplemented by the general
provisions on civil a c t i o n s .
2. Definition of t e r m s :
a. Cause of action: The delict or wrongful act or
omission c o m m i t t e d by t h e d e f e n d a n t in v i o l a t i o n of
the p r i m a r y r i g h t s of t h e plaintiff (Racoma vs. Fortich,
et al, L-29380, June 10, 1971).
b. Right of action: T h e r e m e d i a l r i g h t or r i g h t to
relief g r a n t e d by law to a p a r t y to i n s t i t u t e an action
a g a i n s t a p e r s o n who h a s c o m m i t t e d a delict or w r o n g
against him.
T h e c a u s e of a c t i o n is t h e delict or w r o n g , while
the r i g h t of action is t h e r i g h t to sue as a consequence
of t h a t delict. T h e q u e s t i o n as to w h e t h e r t h e plaintiff
has a c a u s e of action is d e t e r m i n e d by t h e a v e r m e n t s
in the pleading regarding the acts committed by the
defendant; w h e t h e r s u c h acts give him a r i g h t of action
is d e t e r m i n e d by t h e s u b s t a n t i v e law. T h e r e can be no
r i g h t of a c t i o n w i t h o u t a c a u s e of a c t i o n b e i n g first
e s t a b l i s h e d (see Espanol vs. The Chairman, etc. of the
PVA, L-44616, June 29, 1985).
A r i g h t of action is t h e r i g h t to p r e s e n t l y enforce a
c a u s e of a c t i o n a r e m e d i a l r i g h t affording r e d r e s s
for t h e i n f r i n g e m e n t of a legal r i g h t belonging to some
definite person; a c a u s e of action consists of t h e operative
facts which give rise to s u c h r i g h t of action. The r i g h t
of a c t i o n does n o t a r i s e u n t i l t h e p e r f o r m a n c e of all
conditions p r e c e d e n t to t h e action, a n d may be t a k e n
away by the r u n n i n g of the s t a t u t e of limitations,
21

REMEDIAL LAW COMPENDIUM

t h r o u g h an estoppel, or by other circumstances which do


not affect t h e cause of action.
There may be several
rights of action and one cause of action, a n d r i g h t s may
accrue at different times from the same cause (1 Am JUT 2d,
Sec. 2, p. 541).
c. Relief: The redress, protection, a w a r d or coercive
m e a s u r e which t h e plaintiff p r a y s t h e court to r e n d e r in
his favor as a consequence of t h e delict committed by t h e
defendant.
d. Remedy: The procedure or type of action which
may be availed of by t h e plaintiff as t h e m e a n s to obtain
t h e relief desired.
e. Subject-matter:
The t h i n g , wrongful act, cont r a c t or property which is directly involved in t h e action,
c o n c e r n i n g which t h e w r o n g h a s b e e n done a n d w i t h
respect to which t h e controversy h a s a r i s e n (Yusingco,
et al. vs. Ong Ring Lian, L-26523, Dec. 24, 1971).
T h u s , in a case for breach of contract, t h e contract
violated is t h e subject-matter; t h e breach by t h e obligor
is t h e cause of action; the right of action is t h e consequent
s u b s t a n t i v e r i g h t on t h e p a r t jof t h e obligee to sue for
r e d r e s s ; t h e relief is t h e d a m a g e s or rescission or t h e act
which the plaintiff asks the court to order; and t h e remedy
is t h e t y p e of action which m a y be a v a i l e d of by t h e
plaintiff, which may be an action e i t h e r for d a m a g e s ,
for rescission or for specific performance.
The s u b j e c t - m a t t e r of a given case is d e t e r m i n e d not
by t h e n a t u r e of t h e action t h a t a p a r t y is e n t i t l e d to
bring b u t by t h e n a t u r e a n d c h a r a c t e r of t h e p l e a d i n g s
a n d issues s u b m i t t e d by t h e p a r t i e s (Viray vs. CA, et al.,
G.R. No. 92481, Nov. 9, 1990).
3.

Classification of actions:

a. Real action: One b r o u g h t for t h e protection of


r e a l r i g h t s , land, t e n e m e n t s or h e r e d i t a m e n t s or one
founded on privity of e s t a t e only (Paper Industries Corp.
22

PRELIMINARY CONSIDERATIONS

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


Example: Accion
reivindicatoria.
Personal action: O n e which is not founded upon t h e
privity of real r i g h t s or r e a l p r o p e r t y . Example: Action
for a s u m of money.
Mixed action: O n e b r o u g h t for protection or recovery
of r e a l p r o p e r t y a n d a l s o for an a w a r d for d a m a g e s
sustained.
Example: Accion publiciana w i t h a claim for
damages.
For p u r p o s e s of v e n u e , a mixed action is governed
by t h e r u l e s of v e n u e in r e a l actions.
b. Action in rem: O n e which is not directed only
a g a i n s t p a r t i c u l a r p e r s o n s b u t a g a i n s t t h e t h i n g itself
and t h e object of which is to b a r indifferently all who
might b e m i n d e d t o m a k e a n y objection a g a i n s t t h e r i g h t
sought t o b e enforced, h e n c e t h e j u d g m e n t t h e r e i n i s
binding theoretically upon t h e whole world. Example:
Expropriation.
Action in personam: O n e which is directed a g a i n s t
p a r t i c u l a r p e r s o n s on t h e b a s i s of t h e i r p e r s o n a l liability
to establish a claim against t h e m and the j u d g m e n t
wherein is b i n d i n g only upon t h e p a r t i e s impleaded or
their successors in i n t e r e s t . Example: Action for b r e a c h
of contract.
Action quasi in rem: O n e directed a g a i n s t p a r t i c u l a r
persons b u t t h e p u r p o s e of which is to b a r a n d bind not
only said p e r s o n s b u t a n y o t h e r p e r s o n who claims any
interest in the property or right subject of the suit.
Example: J u d i c i a l foreclosure of a m o r t g a g e
(Ocampo
vs. Domalanta, L-21011, Aug. 30, 1967).
A proceeding for a t t a c h m e n t of p r o p e r t y is in rem if
t h e d e f e n d a n t does n o t a p p e a r in court, a n d in personam
if he a p p e a r s (Banco EspaAol-Filipino vs. Palanca,
supra).

23

REMEDIAL LAW COMPENDIUM

c.
Transitory action: One t h e v e n u e of which is
dependent generally upon t h e residence of t h e p a r t i e s
regardless of w h e r e t h e cause of action arose. Example:
Personal action.
Local action: One which is required by t h e Rules to
be i n s t i t u t e d in a p a r t i c u l a r place in t h e absence of an
a g r e e m e n t to t h e contrary. Example: Real action.
The classification of actions into real, personal
or mixed is based on t h e subject-matter thereof. With
respect to t h e binding effect of t h e relief s o u g h t or t h e
j u d g m e n t t h e r e i n , actions a r e classified into actions in
rem, quasi in rem or in personam. Hence, a real action
may be in personam, or a personal action may be in rem
(see Hernandez, et al. vs. Rural Bank of Lucena, Inc.,
L-29791, Jan. 10, 1978). T r a n s i t o r y or local actions a r e
so d e n o m i n a t e d on t h e basis of t h e permissible v e n u e s
thereof.
4. In Yu vs. Pacleb, etc. (G.R. No. 172172, Feb. 24,
2009), the Supreme Court cited this extended discussion
on classification of civil action: The settled rule is t h a t the
a i m a n d object of an action d e t e r m i n e its c h a r a c t e r .
W h e t h e r a proceeding is rem, or in personam, or quasi in
rem is determined by its nature^ind purpose, and by these
only. A proceeding in personam is a proceeding
enforce
personal rights and obligations brought against the person
and is based on t h e jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose
of it in accordance with the m a n d a t e of t h e court. The
purpose of a proceeding in personam is to impose, t h r o u g h
the j u d g m e n t of a court, some responsibility or liability to
compel a defendant to specifically perform some act or
actions to fasten a pecuniary liability on him. An action
in personam is said to be one which has for its object a
j u d g m e n t a g a i n s t t h e person, as d i s t i n g u i s h e d from a
j u d g m e n t against the property to d e t e r m i n e its s t a t e . It
24

PRELIMINARY CONSIDERATIONS

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


to enforce p e r s o n a l r i g h t s or obligations, such action is
brought a g a i n s t t h e person.
X

On t h e o t h e r h a n d , a proceeding quasi in rem is one


brought a g a i n s t p e r s o n s seeking to subject t h e property
of such persons to t h e discharge of t h e claims assailed. In
an a c t i o n quasi in rem, an i n d i v i d u a l is n a m e d as
defendant and t h e p u r p o s e of t h e proceeding is to subject
his i n t e r e s t s t h e r e i n to t h e obligations or loans b u r d e n i n g
the property. Actions quasi in rem deal with t h e s t a t u s ,
ownership or liability of a p a r t i c u l a r p r o p e r t y b u t which
are intended to operate on t h e s e questions only as between
particular p a r t i e s to t h e proceedings a n d not to a s c e r t a i n
or cut off t h e r i g h t s or i n t e r e s t s of all possible c l a i m a n t s .
The j u d g m e n t s t h e r e i n a r e binding only upon t h e p a r t i e s
who joined in t h e action.

25

B. J U R I S D I C T I O N OF THE S U P R E M E COURT
U N D E R THE 1987 C O N S T I T U T I O N
Article VI (Legislative D e p a r t m e n t )
"Sec. 30. No law s h a l l be p a s s e d i n c r e a s i n g t h e
appellate jurisdiction of the Supreme Court as
provided i n t h i s C o n s t i t u t i o n w i t h o u t i t s advice a n d
concurrence."
Article VII (Executive D e p a r t m e n t )
"Sec. 4. (last par.) The S u p r e m e Court, s i t t i n g en
banc, shall be t h e sole judge of all contests r e l a t i n g to
t h e election, r e t u r n s a n d qualifications of t h e P r e s i d e n t
or V i c e - P r e s i d e n t , a n d may p r o m u l g a t e r u l e s for t h e
purpose."
X

"Sec. 18. ( t h i r d p a r . ) T h e S u p r e m e C o u r t m a y
review, in an a p p r o p r i a t e proceeding filed by any citizen,
t h e sufficiency of t h e factual basis of t h e p r o c l a m a t i o n of
m a r t i a l law or t h e suspension of t h e privilege of t h e w r i t
or the extension thereof, and must promulgate its decision
t h e r e o n w i t h i n t h i r t y days from its filing."
Article VIII (Judicial D e p a r t m e n t )
"Sec. 2. The Congress shall have t h e power to define,
prescribe, a n d apportion t h e jurisdiction of t h e v a r i o u s
c o u r t s b u t may not deprive t h e S u p r e m e C o u r t of its
jurisdiction over cases e n u m e r a t e d in Section 5 hereof.
No law shall be p a s s e d reorganizing t h e J u d i c i a r y
when it u n d e r m i n e s the security of t e n u r e of its
Members."
X

"Sec. 5. The S u p r e m e Court shall have t h e following


powers:

26

JURISDICTION OF THE SUPREME COURT


UNDER THE 1987 CONSTITUTION

(1) Exercise o r i g i n a l j u r i s d i c t i o n over c a s e s affecting


ambassadors, o t h e r public m i n i s t e r s a n d consuls, a n d
over petitions for certiorari, prohibition, mandamus,
quo warranto, a n d habeas corpus.
(2) Review, revise, r e v e r s e , modify, or affirm on a p p e a l
or certiorari, as t h e law or t h e Rules of C o u r t may
provide, final j u d g m e n t s a n d o r d e r s of lower c o u r t s
in:
(a) All c a s e s i n w h i c h t h e c o n s t i t u t i o n a l i t y o r
validity of a n y t r e a t y , i n t e r n a t i o n a l or executive a g r e e m e n t , law, p r e s i d e n t i a l decree,
p r o c l a m a t i o n , o r d e r , i n s t r u c t i o n , o r d i n a n c e , or
r e g u l a t i o n is in q u e s t i o n .
(b) All cases involving t h e legality of any tax, impost,
a s s e s s m e n t , or toll, or a n y p e n a l t y imposed in
relation thereto.
(c) All cases in which t h e j u r i s d i c t i o n of any lower
court is in i s s u e .
(d) All c r i m i n a l cases in which t h e p e n a l t y imposed
is reclusion perpetua or h i g h e r .
(e) All cases in which only an e r r o r or question of
law is involved.
(3) Assign t e m p o r a r i l y j u d g e s of lower courts to o t h e r
stations as public interest may require. Such
t e m p o r a r y a s s i g n m e n t s h a l l not exceed six m o n t h s
w i t h o u t t h e c o n s e n t of t h e j u d g e concerned.
(4) O r d e r a c h a n g e of v e n u e or place of t r i a l to avoid a
m i s c a r r i a g e of j u s t i c e .
(5) P r o m u l g a t e r u l e s c o n c e r n i n g t h e p r o t e c t i o n a n d
enforcement of constitutional rights, pleading,
practice, a n d p r o c e d u r e in all courts, t h e admission
to t h e practice of law, t h e I n t e g r a t e d Bar, a n d legal
a s s i s t a n c e to t h e u n d e r p r i v i l e g e d . Such r u l e s shall
provide a simplified a n d inexpensive procedure for

27

REMEDIAL LAW COMPENDIUM

t h e speedy disposition of cases, shall be uniform for


all courts of t h e same grade, and shall not diminish,
i n c r e a s e , or modify s u b s t a n t i v e r i g h t s . R u l e s of
procedure of special courts and quasi-judicial bodies
s h a l l r e m a i n effective u n l e s s d i s a p p r o v e d by t h e
S u p r e m e Court.
(6) Appoint all officials and employees of t h e J u d i c i a r y
in accordance with the Civil Service Law."
Article IX (Constitutional Commissions)
A. Common Provisions
"Sec. 7. Each Commission shall decide by a majority
vote of all its M e m b e r s any case or m a t t e r b r o u g h t before
it w i t h i n sixty days from t h e d a t e of its submission for
decision or r e s o l u t i o n . A c a s e or m a t t e r is d e e m e d
s u b m i t t e d for decision or resolution upon t h e filing of
t h e last pleading, brief, or m e m o r a n d u m r e q u i r e d by
the rules of t h e Commission or by t h e Commission itself.
Unless otherwise provided by this Constitution or by law,
any decision, order or ruling of each Commission may be
b r o u g h t to t h e S u p r e m e C o u r t on certiorari by t h e
a g g r i e v e d p a r t y w i t h i n t h i r t y d a y s from r e c e i p t of a
copy thereof."
NOTES
1. See, in t h i s connection, t h e notes u n d e r Sec. 7,
Rule 56.
2. Considering t h e provisions of B.P. Big. 129, t h e
fact t h a t a p p e a l s from t h e S e c u r i t i e s a n d E x c h a n g e
Commission and in n a t u r a l i z a t i o n a n d d e n a t u r a l i z a t i o n
cases should now be t a k e n to t h e Court of Appeals, and
all d e c i s i o n s o f t h e c o n s t i t u t i o n a l c o m m i s s i o n s a r e
reviewable on original actions of certiorari, all a p p e a l s
in civil cases to t h e S u p r e m e Court can now be b r o u g h t
only on p e t i t i o n for review on c e r t i o r a r i (cf. Sec. 17,
28

JURISDICTION OF THE SUPREME COURT


UNDER THE 1987 CONSTITUTION

R.A. 296, as a m e n d e d by R.A. 5440; Santos, et al. vs.


CA, et al., G.R. No. 56614, July 28, 1987). Moreover, as
hereafter explained, Sec. 9 of B.P. Big. 129 w a s a m e n d e d
by R.A. 7902 to f u r t h e r v e s t a p p e l l a t e jurisdiction in t h e
Court of Appeals over j u d g m e n t s , final o r d e r s , a w a r d s or
r e s o l u t i o n s o f t h e Civil S e r v i c e C o m m i s s i o n a n d t h e
C e n t r a l Board of A s s e s s m e n t A p p e a l s .

29

C. THE J U D I C I A R Y REORGANIZATION ACT


OF 1 9 8 0
ORGANIZATION
1. The Judiciary Reorganization Act of 1980 (Batas
Pambansa Big. 129) took effect upon its a p p r o v a l on
August 14, 1981 (Sec. 48). However, the t r a n s i t o r y prov i s i o n (Sec. 44) d e c l a r e d t h a t i t s p r o v i s i o n s " s h a l l
immediately be carried out in accordance with an
Executive Order to be issued by the President. The
Court of Appeals, the Courts of First I n s t a n c e , the
Circuit Criminal Courts, the Juvenile and Domestic
Relations Courts, t h e C o u r t s of A g r a r i a n Relations, t h e
City C o u r t s , t h e Municipal C o u r t s a n d t h e M u n i c i p a l
Circuit C o u r t s shall continue to function as p r e s e n t l y
c o n s t i t u t e d a n d organized u n t i l t h e completion of t h e
reorganization provided in t h i s Act as declared by t h e
P r e s i d e n t . Upon such declaration, t h e said courts shall
be deemed automatically abolished a n d t h e i n c u m b e n t s
thereof shall cease to hold office. The cases p e n d i n g in
the old C o u r t s shall be t r a n s f e r r e d to t h e a p p r o p r i a t e
C o u r t s c o n s t i t u t e d p u r s u a n t to t h i s Act, t o g e t h e r w i t h
t h e p e r t i n e n t functions, records, e q u i p m e n t , p r o p e r t y
and t h e necessary personnel." The constitutionality of
t h i s Act w a s u p h e l d by t h e S u p r e m e C o u r t en banc,
w i t h one dissent, in De la Liana, et al. vs. Alba, et al.
(G.R. No. 57883, M a r . 12, 1982).
2. The Court of Appeals was replaced by the
I n t e r m e d i a t e Appellate Court consisting of a P r e s i d i n g
J u s t i c e a n d 49 Associate Appellate J u s t i c e s , which shall
sit in 10 divisions each composed of 5 m e m b e r s , except
o n l y for t h e p u r p o s e o f e x e r c i s i n g a d m i n i s t r a t i v e ,
ceremonial or o t h e r non-adjudicatory functions in which
i n s t a n c e s it may sit en banc (Sees. 3 a n d 4).

30

JUDICIARY REORGANIZATION ACT OF 1980

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


a m e n d i n g B . P . B i g . 129, t h e C o u r t o f A p p e a l s w a s
r e - c r e a t e d , c o n s i s t i n g of a P r e s i d i n g J u s t i c e a n d 50
Associate J u s t i c e s , which shall exercise its powers,
functions and duties t h r o u g h 17 divisions, each composed
of 3 m e m b e r s . It m a y s i t en banc for t h e p u r p o s e of
e x e r c i s i n g a d m i n i s t r a t i v e , c e r e m o n i a l o r o t h e r nonadjudicatory functions (Sees. 3 a n d 4, as a m e n d e d ) .
A majority of t h e a c t u a l m e m b e r s of t h e C o u r t s h a l l
constitute a q u o r u m for its sessions en banc. T h r e e (3)
m e m b e r s s h a l l c o n s t i t u t e a q u o r u m for t h e sessions of a
division. The u n a n i m o u s vote of t h e t h r e e m e m b e r s of a
division s h a l l be n e c e s s a r y for t h e p r o n o u n c e m e n t of a
decision or final resolution, which s h a l l be r e a c h e d in
c o n s u l t a t i o n before t h e w r i t i n g of t h e opinion by a n y
m e m b e r o f t h e division. I n t h e e v e n t t h a t t h e t h r e e
m e m b e r s do not r e a c h a u n a n i m o u s vote, t h e P r e s i d i n g
Justice s h a l l r e q u e s t t h e Raffle C o m m i t t e e of t h e Court
for t h e d e s i g n a t i o n of t w o a d d i t i o n a l J u s t i c e s to s i t
temporarily w i t h t h e m , forming a special division of five
m e m b e r s a n d t h e c o n c u r r e n c e of a m a j o r i t y of s u c h
division shall be n e c e s s a r y for t h e p r o n o u n c e m e n t of a
decision or final r e s o l u t i o n . T h e d e s i g n a t i o n of s u c h
a d d i t i o n a l J u s t i c e s s h a l l b e m a d e s t r i c t l y b y raffle
(Sec. 11, as a m e n d e d ) .
E x e c u t i v e O r d e r N o . 33 r e p e a l e d Sec. 8 of B . P .
Big. 129 which h a d provided for grouping of divisions
to h a n d l e specific classes of cases (Sec. 4). It f u r t h e r
provided t h a t t h e t e r m " I n t e r m e d i a t e Appellate Court,
Presiding Appellate Justice and Associate Appellate
Justice(s)" used in B.P. Big. 129 or in any o t h e r law or
executive order s h a l l h e r e a f t e r m e a n Court of Appeals,
Presiding J u s t i c e a n d Associate Justice(s), respectively
(Sec. 8).
Additionally, effective F e b r u a r y 2, 1997, B.P. Big. 129
w a s f u r t h e r a m e n d e d by R.A. 8 2 4 6 (Appendix G),
p u r s u a n t to which t h e C o u r t of Appeals shall consist of
31

REMEDIAL LAW COMPENDIUM

a Presiding J u s t i c e and 68 Associate J u s t i c e s , and shall


be composed of 23 divisions of 3 members each, with the
first 17 divisions stationed in Manila, the 18th to 20th
divisions in Cebu City, and the 21st to 23rd divisions in
Cagayan de Oro City.
3. The Courts of First Instance, the Circuit Criminal
Courts, the Juvenile and Domestic Relations Courts and
the Courts of Agrarian Relations have been i n t e g r a t e d
into the Regional Trial Courts for each of the 13 Judicial
Regions which replaced the former 16 Judicial Districts,
each Regional Trial Court to consist of t h e n u m b e r of
branches provided in Section 14 of t h e Act.
4. The city courts and municipal courts in the
National Capital Judicial Region have been merged into
a Metropolitan Trial Court of M e t r o M a n i l a a n d were
converted into branches thereof (Sec. 27). The S u p r e m e
Court shall constitute other Metropolitan Trial Courts
in such other metropolitan a r e a s as may be established
by law a n d whose t e r r i t o r i a l j u r i s d i c t i o n s h a l l be coextensive with t h e cities a n d municipalities comprising
such metropolitan a r e a (Sec. 28).
5. The city courts in other cities which do not now
or hereafter form p a r t of a m e t r o p o l i t a n a r e a shall be
known as Municipal Trial Courts, with t h e corresponding
n u m b e r of b r a n c h e s (Sec. 29), and t h e municipal courts,
w h e t h e r of an ordinary municipality or of a capital of a
province or s u b - p r o v i n c e b u t not c o m p r i s e d w i t h i n a
metropolitan area and a municipal circuit, shall likewise
be known as Municipal Trial Courts with the corresponding n u m b e r of b r a n c h e s (Sec. 30). The municipal
circuit courts shall be known as Municipal Circuit Trial
Courts and t h e S u p r e m e Court may further reorganize
the same (Sec. 31).
6. Excepted from t h e coverage of t h e Act a r e t h e
Supreme Court and the Sandiganbayan, but these
32

JUDICIARY REORGANIZATION ACT OF 1980

courts have been affected by t h e jurisdictional c h a n g e s


introduced t h e r e i n . The provisions of t h e J u d i c i a r y Act
of 1948 (R.A. 296, as amended), R.A. 5179, as a m e n d e d ,
the Rules of Court and all other s t a t u t e s , letters of
instructions and g e n e r a l o r d e r s or p a r t s thereof,
inconsistent with t h e provisions of this Act a r e repealed
or modified accordingly.
7. No mention is m a d e of t h e Court of Tax Appeals
since t h e Act is basically on t h e m a t t e r of jurisdictional
changes. However, a p p e a l s from its j u d g m e n t s or final
orders, which used to be governed by R.A. 1125, were l a t e r
required to be t a k e n to t h e Court of Appeals p u r s u a n t to
Revised A d m i n i s t r a t i v e Circular No. 1-95 of t h e S u p r e m e
Court, which t h e r e a f t e r w a s adopted as Rule 43 of these
revised Rules. See, however, t h e more recent changes in
R.A. 9282 (Appendix CC).
JURISDICTION
I.

I n t e r m e d i a t e Appellate C o u r t (now, t h e Court of


Appeals):

"Sec. 9. Jurisdiction. The I n t e r m e d i a t e Appellate


Court shall exercise:
(1) Original j u r i s d i c t i o n to issue w r i t s of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary w r i t s or processes, w h e t h e r
or not in aid of its appellate jurisdiction;
(2) Exclusive o r i g i n a l j u r i s d i c t i o n over actions
for a n n u l m e n t of j u d g m e n t s of Regional Trial Courts;
and
(3) Exclusive appellate jurisdiction over all final
j u d g m e n t s , decisions, resolutions, orders or a w a r d s
of Regional T r i a l Courts a n d quasi-judicial agencies,
i n s t r u m e n t a l i t i e s , b o a r d s , or commissions, except
those falling w i t h i n t h e appellate jurisdiction of t h e
S u p r e m e Court in accordance with t h e Constitution,
33

REMEDIAL LAW COMPENDIUM

the provisions of this Act, and of s u b p a r a g r a p h (1) of


t h e t h i r d p a r a g r a p h and s u b p a r a g r a p h (4) of t h e
fourth p a r a g r a p h of Section 17 of t h e Judiciary Act
of 1948.
The I n t e r m e d i a t e Appellate Court shall have the
power to try cases a n d conduct h e a r i n g s , receive
evidence and perform any and all acts necessary to
resolve factual issues raised in cases falling within
its original and appellate jurisdiction, including the
power to g r a n t and conduct new trials and further
proceedings.
These provisions shall not apply to decisions and
interlocutory o r d e r s issued u n d e r t h e Labor Code
of t h e P h i l i p p i n e s a n d by t h e C e n t r a l B o a r d of
Assessment Appeals."
The second p a r a g r a p h of Sec. 9 above set forth was
s u b s e q u e n t l y a m e n d e d by Sec. 5 of E x e c u t i v e O r d e r
No. 33 to read as follows:
"The Court of Appeals shall have t h e power to
receive evidence and perform any and all acts
necessary to resolve factual issues raised in (a) cases
falling within its original jurisdiction, such as actions
for a n n u l m e n t of j u d g m e n t s of regional t r i a l courts,
as provided in p a r a g r a p h (2) hereof; a n d in (b) cases
falling w i t h i n its a p p e l l a t e j u r i s d i c t i o n w h e r e i n a
motion for new t r i a l based only on t h e g r o u n d of
newly discovered evidence is g r a n t e d by it."
However, effective March 18, 1995, Sec. 9 was further
amended by R.A. 7902 (Appendix F) and now provides:
"SEC. 9. Jurisdiction. The Court of Appeals
shall exercise:
"(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, w h e t h e r
or not in aid of its appellate jurisdiction;
34

JUDICIARY REORGANIZATION ACT OF 1980

"(2) Exclusive original jurisdiction over actions


for a n n u l m e n t of j u d g m e n t s of Regional Trial Courts;
and
"(3) Exclusive appellate jurisdiction over all final
j u d g m e n t s , decisions, resolutions, orders or a w a r d s
of Regional Trial C o u r t s a n d quasi-judicial agencies,
i n s t r u m e n t a l i t i e s , b o a r d s or commissions, including
t h e Securities a n d Exchange Commission, t h e Social
Security Commission, t h e Employees Compensation
Commission a n d t h e Civil Service Commission, except
those falling w i t h i n t h e appellate jurisdiction of t h e
S u p r e m e Court in accordance with t h e Constitution,
t h e Labor Code of t h e Philippines u n d e r P r e s i d e n t i a l
Decree No. 442, as a m e n d e d , t h e provisions of this
Act, a n d of s u b p a r a g r a p h (1) of t h e t h i r d p a r a g r a p h
a n d s u b p a r a g r a p h (4) of t h e f o u r t h p a r a g r a p h of
Section 17 of t h e J u d i c i a r y Act of 1948.
"The C o u r t of A p p e a l s shall have t h e power to
try cases a n d conduct h e a r i n g s , receive evidence and
perform any a n d all acts necessary to resolve factual
issues raised in cases falling w i t h i n its original a n d
a p p e l l a t e jurisdiction, including t h e power to g r a n t
a n d conduct new t r i a l s or further proceedings. Trials
or h e a r i n g s in t h e C o u r t of A p p e a l s m u s t be cont i n u o u s a n d m u s t b e c o m p l e t e d w i t h i n t h r e e (3)
m o n t h s unless extended by t h e Chief Justice."
NOTES
1. Unlike t h e provisions of Sec. 30 of t h e J u d i c i a r y
Act, B . P . Big. 129 v e s t e d t h e I n t e r m e d i a t e A p p e l l a t e
Court w i t h original jurisdiction to issue w r i t s of m a n damus, prohibition, certiorari, habeas corpus, a n d all other
auxiliary w r i t s a n d processes w h e t h e r or not in aid of its
appellate jurisdiction a n d added t h e special civil action of
quo w a r r a n t o to such original jurisdiction. F u r t h e r m o r e ,
the I n t e r m e d i a t e Appellate Court had exclusive original
35

REMEDIAL LAW COMPENDIUM

jurisdiction over actions for the a n n u l m e n t of j u d g m e n t s


of the Regional Trial Courts. The latter, however, r e t a i n
t h e i r j u r i s d i c t i o n over a c t i o n s for t h e a n n u l m e n t of
j u d g m e n t s of t h e i n f e r i o r c o u r t s (Sec. 19), i.e., t h e
Metropolitan, Municipal and Municipal Circuit Trial
Courts (Sec. 25).
2. Amendatory of previous legislation, t h e appellate
jurisdiction of the t h e n Intermediate Appellate Court over
quasi-judicial agencies, or t h e so-called a d m i n i s t r a t i v e
t r i b u n a l s , was extended to and included t h e Securities
and Exchange Commission and the different boards
w h i c h took t h e place of t h e q u o n d a m P u b l i c S e r v i c e
Commission, i.e., the Boards of T r a n s p o r t a t i o n , Communications, and Power and Waterworks, whose decisions
were theretofore appealable to the S u p r e m e Court. Cases
involving petitions for naturalization and denaturalization
are now exclusively appealable to t h e Court of Appeals.
3. However, by specific provisions of Sec. 9 of this
Act, t h e S u p r e m e C o u r t r e t a i n e d exclusive a p p e l l a t e
jurisdiction over t h e decisions of the two constitutional
commissions, i.e., Commission on E l e c t i o n s a n d Commission on Audit (see 1973 Constitution, Art. XII-C and
D). U n d e r the 1987 Constitution, this exclusive appellate
j u r i s d i c t i o n w a s m a d e t o i n c l u d e t h e Civil S e r v i c e
Commission (Sec. 7, Art. IX-A). Also, likewise specifically
excluded from t h e appellate jurisdiction of t h e I n t e r m e diate Appellate Court were decisions a n d interlocutory
orders u n d e r t h e Labor Code, such as those p r o m u l g a t e d
by the Secretary of Labor and Employment and the
National Labor Relations Commission, those of the Central
Board of Assessment Appeals, and t h e 5 types of cases
which fall within t h e exclusive appellate jurisdiction of
the Supreme Court under the 1973 Constitution (Sec. 5[2],
Art. X ) a n d r e p r o d u c e d i n t h e 1987 C o n s t i t u t i o n
(Sec. 5[2J, Art. VIII), as amplified in t h e provisions of t h e
Judiciary Act specified by said Sec. 9.

36

JUDICIARY REORGANIZATION ACT OF 1980

F u r t h e r m o r e , in view of t h e exclusionary provision


in said Sec. 9, t h e I n t e r m e d i a t e Appellate Court a p p e a r e d
to have no a p p e l l a t e jurisdiction over t h e cases in t h e
specified p a r a g r a p h s of Sec. 17 of t h e J u d i c i a r y Act, i.e.,
those involving constitutional, tax or jurisdictional
questions even if t h e s a m e also involve questions of fact
or mixed questions of fact a n d law which were appealable
to t h e C o u r t of Appeals u n d e r Sec. 17 of t h e J u d i c i a r y
Act, as a m e n d e d . It is believed t h a t despite t h e p r e s e n t
formulation of said Sec. 9(3) of B.P. Big. 129, t h e former
rule, vesting t h e Court of Appeals with appellate jurisdiction in t h e aforestated cases w h e n e v e r a factual issue
is involved, should still apply.
As indicated earlier, with t h e a m e n d m e n t s introduced
by R.A. 7902, t h e dispositions of t h e Civil Service Commission a n d t h e C e n t r a l Board of A s s e s s m e n t Appeals
are now w i t h i n t h e exclusive appellate jurisdiction of the
Court of Appeals.
4. While the I n t e r m e d i a t e Appellate Court was
authorized to receive evidence on factual issues on appeal,
this evidentiary h e a r i n g c o n t e m p l a t e s "incidental facts"
which were not touched upon or fully h e a r d by t h e trial
court, a n d not a n o r i g i n a l a n d full t r i a l o f t h e m a i n
factual issue which properly p e r t a i n s to t h e t r i a l court
(Lingner & Fisher GMBH vs. IAC, et al., G.R. No. 63557,
Oct. 28, 1983). T h i s p o w e r to c o n d u c t n e w t r i a l s or
f u r t h e r p r o c e e d i n g s is not obligatory on t h e a p p e l l a t e
court and it may r e m a n d the case to the trial court
for t h a t p u r p o s e (De la Cruz, etc. vs. IAC, et al., G.R.
No. 72981, Jan. 29, 1988).
5. The exclusive appellate jurisdiction of t h e Court
of Appeals provided for in Sec. 9(3) of B.P. Big. 129 over
final orders or rulings of quasi-judicial i n s t r u m e n t a l i t i e s ,
boards or commissions refers to those which resulted from
proceedings w h e r e i n t h e a d m i n i s t r a t i v e body involved
exercised quasi-judicial functions. S u c h quasi-judicial
37

REMEDIAL LAW COMPENDIUM

action or discretion involves the investigation of facts,


holding of hearings, drawing conclusions therefrom as a
basis for official action, and exercising discretion of a
judicial n a t u r e . Quasi-judicial adjudication r e q u i r e s a
determination of rights, privileges and duties resulting
in a decision or order which applies to a specific situation.
Rules and regulations of general applicability issued by
the administrative body to implement its purely administrative policies and functions, or those which a r e merely
incidents of its i n h e r e n t a d m i n i s t r a t i v e functions, a r e
not included in t h e appealable orders c o n t e m p l a t e d in
said provision, unless otherwise specifically provided by
other laws governing the m a t t e r . Controversies arising
from s u c h o r d e r s a r e w i t h i n t h e c o g n i z a n c e o f t h e
Regional Trial Courts (Lupangco, et al. vs. CA, et al.,
G.R. No. 77372, April 29, 1988).
6. It was formerly held t h a t t h e 30-day period to
a p p e a l t o t h e I n t e r m e d i a t e A p p e l l a t e C o u r t from a
decision or final o r d e r of t h e S e c u r i t i e s a n d E x c h a n g e
Commission, p u r s u a n t t o i t s r u l e s i s s u e d c o n s e q u e n t
to Sec. 6, P . D . 902-A, h a d n o t b e e n affected by B . P .
Big. 129 w h i c h p r o v i d e s for a 15-day a p p e a l p e r i o d
from decisions of courts of justice. The Securities a n d
Exchange Commission is not a court; it is an administrative agency. Repeals by implication a r e not favored
(Gimenez Stockbrokerage & Co., Inc. vs. SEC, et al.,
G.R. No. 68568, Dec. 26, 1984).
7. The aforesaid doctrine was t a k e n into account by
the S u p r e m e Court in an appeal from a decision of t h e
Insurance Commission to the t h e n I n t e r m e d i a t e Appellate
Court since Sec. 416(7) of t h e I n s u r a n c e Code (P.D. 612,
as amended) provides for a 30-day period for a p p e a l from
notice of a final order, ruling, or decision of t h e Commission. The S u p r e m e Court noted t h a t if t h e provisions
of R.A. 5434 were to be applied, p u r s u a n t to P a r . 22(c) of
t h e I n t e r i m Rules which g o v e r n s a p p e a l s from q u a s i -

38

JUDICIARY REORGANIZATION ACT OF 1980

judicial bodies, Sec. 2 thereof provides t h a t t h e a p p e a l


should be filed w i t h i n 15 days from notice of t h e ruling,
award, order, decision, or j u d g m e n t or from t h e d a t e of
its last publication if required by law, or in case a motion
for reconsideration is filed w i t h i n t h e period for appeal,
t h e n w i t h i n 10 days from notice or such publication of
the resolution d e n y i n g t h e motion for r e c o n s i d e r a t i o n .
Nevertheless, in line w i t h t h e ruling in Gimenez, since
the I n s u r a n c e Commission is likewise an a d m i n i s t r a t i v e
body, a p p e a l s from its final orders, decisions, resolutions,
or a w a r d s m a y not necessarily be deemed modified by
Sec. 3 9 o f B . P . Big. 129 w h i c h l i m i t s t h e p e r i o d t o
a p p e a l to 15 d a y s (Midland Ins. Corp. vs. IAC, et al.,
G.R. No. 71905, Aug. 13, 1986; see also Zenith Ins. Corp.
vs. IAC, et al, G.R. No. 73336, Sept. 24, 1986; Malayan
Ins. Co., Inc. vs. Arnaldo, et al., G.R. No. 67835, Oct. 12,
1987).
8. T h e foregoing doctrines, however, a r e no longer
controlling in view of C i r c u l a r No. 1-91 i s s u e d by t h e
S u p r e m e C o u r t o n F e b r u a r y 27, 1991 w h i c h provided
t h a t a p p e a l s from quasi-judicial agencies s h a l l be t a k e n
to t h e C o u r t of A p p e a l s w i t h i n 15 days from notice or last
p u b l i c a t i o n o f t h e j u d g m e n t o r final o r d e r . T h i s w a s
more r e c e n t l y f u r t h e r amplified by Revised A d m i n i s t r a t i v e C i r c u l a r No. 1-95 which took effect on J u n e 1,
1995, a n d h a s now been formulated as Rule 43 of these
revised Rules.
9. It will also be recalled t h a t appeals from the
decisions, o r d e r s or r u l i n g s of t h e t h r e e c o n s t i t u t i o n a l
commissions, i.e., Civil Service Commission, Commission
on Elections a n d Commission on Audit, may be brought to
t h e S u p r e m e C o u r t on c e r t i o r a r i w i t h i n 30 days from
receipt thereof unless otherwise provided by the Constit u t i o n or by law (Sec. 7, Art. IX-A, 1987 Constitution).
However, as earlier stated, Sec. 9 of B.P. Big. 129 which
originally c o n t a i n e d t h e s a m e j u r i s d i c t i o n a l r u l e w a s
subsequently a m e n d e d by R.A. 7902, effective March 18,
39

REMEDIAL LAW COMPENDIUM

1995, to provide t h a t a p p e a l s from t h e Civil Service


Commission should be t a k e n to the Court of Appeals.
10. In the l a n d m a r k decision in St. Martin Funeral
Home vs. NLRC, et al. (G.R. No. 130866, Sept. 16, 1998),
the Supreme Court clarified t h a t ever since appeals from
t h e NLRC to the S u p r e m e Court were eliminated, t h e
legislative i n t e n d m e n t is t h a t the special civil action of
certiorari was and still is t h e proper vehicle for judicial
review of decisions of the NLRC. All references in t h e
amended Sec. 9 of B.P. Big. 129 to supposed appeals from
t h e NLRC t o t h e S u p r e m e C o u r t a r e i n t e r p r e t e d a n d
declared to mean and refer to petitions u n d e r Rule 65.
Consequently, all such petitions should be initially filed
in the Court of Appeals in strict observance of t h e rule on
hierarchy of courts. The concurrent original jurisdiction
of t h e S u p r e m e C o u r t c a n be a v a i l e d of only u n d e r
compelling and exceptional circumstances.
11. On a different r a t i o n a l e , t h e S u p r e m e C o u r t
ruled in Fabian vs. Desierto, etc., et al. (G.R. No. 129742,
S e p t . 16, 1998) t h a t a p p e a l s from t h e Office of t h e
O m b u d s m a n in administrative disciplinary cases should
be t a k e n to the Court of Appeals via a verified petition for
review u n d e r Rule 43. Striking down as unconstitutional
Sec. 27, R.A. 6770 ( O m b u d s m a n Act of 1989) w h i c h
a u t h o r i z e d s u c h a p p e a l t o t h e S u p r e m e C o u r t "in
accordance with Rule 45," it was pointed out t h a t
appeals u n d e r Rule 45 apply only to j u d g m e n t s or final
orders of the courts e n u m e r a t e d u n d e r Sec. 1 thereof, a n d
not to those of quasi-judicial agencies. F u r t h e r m o r e , t h a t
provision of R.A. 6770 violates the proscription in Sec. 30,
A r t . VI of t h e 1987 C o n s t i t u t i o n a g a i n s t a law which
increases the appellate jurisdiction of t h e S u p r e m e Court
without its advice and consent.
II.

Regional Trial Courts:


"SEC. 19. Jurisdiction in civil cases. R e g i o n a l
40

JUDICIARY REORGANIZATION ACT OF 1980

Trial C o u r t s s h a l l exercise exclusive original jurisdiction:


(1) In all civil actions in which t h e subject of t h e
litigation is incapable of pecuniary estimation;
(2) In all civil actions which involve t h e t i t l e
to, or possession of, r e a l p r o p e r t y , or any i n t e r e s t
t h e r e i n , w h e r e t h e a s s e s s e d value o f t h e p r o p e r t y
involved exceeds Twenty t h o u s a n d pesos (P20.000.00)
or, for civil actions in M e t r o Manila, where such value
exceeds Fifty t h o u s a n d p e s o s (P50.000.00) except
actions for forcible e n t r y into a n d unlawful d e t a i n e r
of l a n d s or buildings, original jurisdiction over which
is conferred upon the Metropolitan Trial Courts,
Municipal Trial C o u r t s a n d Municipal Circuit Trial
Courts;
(3) In all a c t i o n s in a d m i r a l t y a n d m a r i t i m e
jurisdiction w h e r e t h e d e m a n d or claim exceeds One
h u n d r e d t h o u s a n d pesos (F100.000.00) or, in Metro
M a n i l a , w h e r e s u c h d e m a n d or claim exceeds Two
h u n d r e d t h o u s a n d pesos (P200.000.00);
(4) In all m a t t e r s of probate, both t e s t a t e and
intestate, where the gross value of the estate
exceeds One h u n d r e d t h o u s a n d pesos (P 100,000.00)
or, in p r o b a t e m a t t e r s in M e t r o Manila, w h e r e such
gross value exceeds Two h u n d r e d t h o u s a n d pesos
(P200,000.00);
(5) I n a l l a c t i o n s i n v o l v i n g t h e c o n t r a c t o f
m a r r i a g e a n d m a r i t a l relations;
(6) In all cases not w i t h i n t h e exclusive jurisd i c t i o n o f a n y c o u r t , t r i b u n a l , p e r s o n o r body
exercising [jurisdiction of any court, t r i b u n a l , person
or body exercising] judicial or quasi-judicial
functions;*
(7) In a l l civil a c t i o n s s p e c i a l p r o c e e d i n g s *
'The bracketed portion in Par. (6) appears to be a typographical
error by repetition, while the indicated portion in Par. (7) should have a
conjunction between "civil actions" and "special proceedings."

41

REMEDIAL LAW COMPENDIUM

falling within t h e exclusive original jurisdiction of a


Juvenile and Domestic Relations Court a n d of t h e
Court of Agrarian Relations as now provided by law;
and
(8) In all o t h e r c a s e s in w h i c h t h e d e m a n d ,
exclusive of i n t e r e s t , d a m a g e s of w h a t e v e r k i n d ,
attorney's fees, litigation expenses and costs or the
value of t h e p r o p e r t y in controversy exceeds One
h u n d r e d t h o u s a n d pesos (PlOO.OOO.OO) or, in such
o t h e r cases i n M e t r o M a n i l a , w h e r e t h e d e m a n d ,
exclusive of t h e abovementioned items exceeds Two
h u n d r e d t h o u s a n d pesos (P200.000.00)." (As amended by R.A. 7691)
X

"Sec. 2 1 . Original jurisdiction in other cases.


Regional Trial Courts shall exercise original jurisdiction:
(1) In t h e issuance of w r i t s of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and
injunction which may be enforced in any p a r t of t h e i r
respective regions; and
(2) In actions affecting a m b a s s a d o r s a n d o t h e r
public ministers and consuls."
"Sec. 2 2 . Appellate jurisdiction. R e g i o n a l T r i a l
Courts shall exercise appellate jurisdiction over all cases
decided by M e t r o p o l i t a n Trial C o u r t s , M u n i c i p a l T r i a l
Courts, and Municipal Circuit Trial Courts in t h e i r respective t e r r i t o r i a l j u r i s d i c t i o n s . S u c h cases s h a l l be
decided on t h e b a s i s of t h e e n t i r e m e m o r a n d a a n d / o r
briefs as may be s u b m i t t e d by t h e p a r t i e s or required by
the Regional Trial Courts. The decisions of t h e Regional
Trial Courts in such cases shall be appealable by petition
for review to t h e I n t e r m e d i a t e Appellate C o u r t which
may give it due course only w h e n t h e p e t i t i o n s h o w s
prima facie t h a t the lower court h a s committed an error of
fact or law t h a t will w a r r a n t a reversal or modification of
42

JUDICIARY REORGANIZATION ACT OF 1980

the decision or j u d g m e n t s o u g h t to be reviewed."


"Sec. 2 3 . Special jurisdiction to try special cases.
The S u p r e m e C o u r t m a y d e s i g n a t e c e r t a i n b r a n c h e s of
the Regional T r i a l C o u r t s to h a n d l e exclusively criminal
cases, j u v e n i l e a n d d o m e s t i c r e l a t i o n s cases, a g r a r i a n
cases, u r b a n land reform cases which do not fall u n d e r
t h e j u r i s d i c t i o n of q u a s i - j u d i c i a l bodies a n d a g e n c i e s ,
and/or s u c h o t h e r special cases a s t h e S u p r e m e C o u r t
may d e t e r m i n e in t h e i n t e r e s t of a speedy a n d efficient
a d m i n i s t r a t i o n of justice."
NOTES
1. R.A. 7 6 9 1 , w h i c h took effect on April 15, 1994
(see Appendix N), e x p a n d e d t h e j u r i s d i c t i o n of t h e
metropolitan, municipal and municipal circuit trial
c o u r t s i n civil a n d c r i m i n a l c a s e s , t h e a m e n d e d civil
jurisdiction being set out hereinafter. In Administrative
Circular No. 09-94 (see Appendix O), t h e S u p r e m e Court,
by w a y of g u i d e l i n e s in t h e i m p l e m e n t a t i o n of s a i d
a m e n d a t o r y Act, m a d e t h e clarification t h a t :
"2. T h e e x c l u s i o n o f t h e t e r m ' d a m a g e s o f
whatever kind' in determining the jurisdictional
a m o u n t u n d e r S e c t i o n 19(8) a n d Section 33(1) of
B.P. Big. 129, as a m e n d e d by R.A. No. 7691, applies
t o cases w h e r e t h e d a m a g e s a r e merely incidental
to or a c o n s e q u e n c e of t h e m a i n c a u s e of a c t i o n .
However, in cases w h e r e t h e claim for d a m a g e s is t h e
m a i n c a u s e of action, or one of t h e causes of action,
the a m o u n t of such claim shall be considered in
d e t e r m i n i n g t h e jurisdiction of t h e court."
T h i s j u r i s d i c t i o n a l r u l e w a s a p p l i e d i n Ouano vs.
PGTT International Investment Corp. (G.R. No. 134230,
July 17, 2002).
On t h e m a t t e r of t h e jurisdictional a m o u n t in civil
cases, R.A. 7691 additionally provides:
43

REMEDIAL LAW COMPENDIUM

"Sec. 5. After five (5) years from t h e effectivity of


t h i s Act, the jurisdictional a m o u n t s m e n t i o n e d in
Sec. 19(3), (4), a n d (8); a n d Sec. 33(1) of B a t a s
P a m b a n s a Big. 129 as a m e n d e d by t h i s Act, shall
b e a d j u s t e d t o Two h u n d r e d t h o u s a n d p e s o s
(P200.000.00). Five (5) years thereafter, such jurisdictional amounts shall be adjusted further to Three
h u n d r e d t h o u s a n d pesos (P300,000.00): Provided,
h o w e v e r , T h a t i n t h e case o f M e t r o M a n i l a , t h e
abovementioned jurisdictional amounts shall be
a d j u s t e d after five (5) y e a r s from t h e effectivity
of t h i s Act to F o u r h u n d r e d t h o u s a n d pesos
(P400.000.00)."
2. The j u r i s d i c t i o n of t h e R e g i o n a l T r i a l C o u r t s
differs from t h a t of the former Courts of F i r s t Instance
in t h e following respects:
a. While u n d e r t h e J u d i c i a r y Act, all a c t i o n s in
a d m i r a l t y a n d m a r i t i m e j u r i s d i c t i o n w e r e exclusively
cognizable by t h e Court of F i r s t I n s t a n c e r e g a r d l e s s of
t h e v a l u e of t h e p r o p e r t y involved or t h e a m o u n t of
p l a i n t i f f s claim (Sec. 44[d]), they a r e now w i t h i n t h e
exclusive jurisdiction of t h e Regional Trial Courts only if
t h e value or claim exceeds P 100,000 or, in M e t r o Manila,
P200,000, otherwise jurisdiction is vested in t h e inferior
courts (Sec. 33).
b . T h e J u d i c i a r y Act v e s t e d t h e C o u r t s o f F i r s t
I n s t a n c e w i t h exclusive j u r i s d i c t i o n in all m a t t e r s of
probate, w h e t h e r t e s t a t e or i n t e s t a t e (Sec. 44[e]). The
Regional Trial Courts now have such exclusive jurisdiction
if t h e gross value of t h e e s t a t e exceeds P 100,000 or, in
Metro Manila, P200.000, otherwise t h e proceedings a r e
cognizable by t h e inferior courts (Sec. 33).
c. Actions for a n n u l m e n t of m a r r i a g e a n d all o t h e r
special cases and proceedings not otherwise provided for
were exclusively cognizable by the Courts of First Instance
u n d e r t h e J u d i c i a r y Act (Sec. 44[e]) or, u n d e r special
44

JUDICIARY REORGANIZATION ACT OF 1980

legislation, by the Juvenile and Domestic Relations


Courts. The J u v e n i l e a n d Domestic Relations C o u r t s a n d
the C o u r t s of A g r a r i a n Reform h a v i n g been i n t e g r a t e d
into t h e R e g i o n a l T r i a l C o u r t s , t h e l a t t e r s h a l l h a v e
exclusive original jurisdiction over said cases and
proceedings b u t t h e y shall continue to apply t h e special
rules of procedure u n d e r t h e p r e s e n t laws provided for
domestic r e l a t i o n s cases a n d a g r a r i a n cases, u n l e s s t h e
same a r e s u b s e q u e n t l y a m e n d e d by such law or rules of
court as may be p r o m u l g a t e d (Sec. 24).
3. The w r i t s of certiorari, prohibition, m a n d a m u s ,
quo w a r r a n t o , habeas corpus, a n d injunction issued by
the Regional Trial Courts are enforceable within
their respective regions, while u n d e r t h e J u d i c i a r y Act
(Sec. 44[hJ), t h e s e could be enforced only w i t h i n t h e
respective provinces a n d districts u n d e r t h e jurisdiction
of the C o u r t s of F i r s t I n s t a n c e .
4. The concurrent jurisdiction between the Courts
of First I n s t a n c e a n d t h e inferior c o u r t s in cases provided
for u n d e r t h e J u d i c i a r y Act h a s b e e n e l i m i n a t e d . The
Regional T r i a l C o u r t s s h a l l exercise exclusive original
jurisdiction i n g u a r d i a n s h i p a n d adoption cases which,
u n d e r t h e a m e n d m e n t s of t h e J u d i c i a r y Act by R.A. 643
and R.A. 644, w e r e w i t h i n t h e confluent j u r i s d i c t i o n of
the inferior c o u r t s . T h e c o n c u r r e n t j u r i s d i c t i o n b e t w e e n
t h e C o u r t s of F i r s t I n s t a n c e a n d t h e City C o u r t s over
the cases s t a t e d in Sec. 3, R.A. 6967, i.e., p e t i t i o n s for
change of n a m e of n a t u r a l i z e d citizens, cancellation or
correction of t y p o g r a p h i c a l e r r o r s in t h e city r e g i s t r y ,
a n d e j e c t m e n t c a s e s w h e r e t h e i s s u e of o w n e r s h i p is
involved, h a s l i k e w i s e b e e n e l i m i n a t e d . S a i d law i s
d e e m e d r e p e a l e d by B . P . Big. 129 (Lee vs. Presiding
Judge, etc., et al., G.R. No. 8789, Nov. 10, 1986).
5. The c o n c u r r e n t jurisdiction b e t w e e n t h e Courts
of First Instance and inferior courts having been
abolished, t h e decisions of t h e inferior courts in all cases
45

REMEDIAL LAW COMPENDIUM

are now appealable to the Regional Trial Courts, except


c a d a s t r a l a n d land r e g i s t r a t i o n cases decided b y t h e
inferior courts in t h e exercise of delegated jurisdiction
(Sec. 34).
6. Admiralty jurisdiction regulates maritime m a t t e r s
and cases, such as contracts relating to t h e t r a d e a n d
b u s i n e s s of t h e sea a n d e s s e n t i a l l y fully m a r i t i m e in
character, like maritime services, t r a n s a c t i o n s or casualties (see Macondray & Co. vs. Delgado Bros., Inc., 107
Phil. 781; Delgado Bros., Inc. vs. Home Insurance Co.,
L16131, Mar. 27, 1961; Elite Shirt Factory, Inc. vs.
Cornejo, L-26718, Oct. 31, 1961; Negre vs. Cabahug
Shipping & Co., L-19609, April 29, 1966).
7. Civil actions in which the subject of t h e litigation
is i n c a p a b l e of p e c u n i a r y e s t i m a t i o n h a v e i n v a r i a b l y
been w i t h i n t h e exclusive o r i g i n a l j u r i s d i c t i o n of t h e
courts of general jurisdiction, i.e., t h e former C o u r t s of
F i r s t I n s t a n c e , now t h e Regional T r i a l C o u r t s . T h u s ,
actions for s u p p o r t which will require t h e d e t e r m i n a t i o n
of t h e civil s t a t u s or t h e r i g h t to s u p p o r t of t h e plaintiff,
those for t h e a n n u l m e n t of decisions of lower courts, or
those for t h e rescission or reformation of c o n t r a c t s a r e
incapable of pecuniary estimation.
a. Where t h e action supposedly for a s u m of money
required t h e d e t e r m i n a t i o n of w h e t h e r t h e plaintiff had
complied w i t h t h e condition p r e c e d e n t in t h e c o n t r a c t
which, if complied with, would entitle him to t h e a w a r d
of t h e a m o u n t c l a i m e d , t h e a c t i o n is one for specific
p e r f o r m a n c e a n d not for a s u m of m o n e y , h e n c e t h e
relief sought was incapable of pecuniary e s t i m a t i o n and
w a s w i t h i n t h e j u r i s d i c t i o n of t h e t h e n C o u r t of F i r s t
I n s t a n c e (Ortigas & Co. vp. Herrera, et al., L-36098,
Jan. 21, 1983).
b. An action to compel t h e obligor to complete t h e
construction of a house is one for specific performance

46

JUDICIARY REORGANIZATION ACT OF 1980

and is incapable of pecuniary estimation, hence jurisdiction is vested in t h e Regional Trial Court. Where t h e
complaint in said case, however, contains an a l t e r n a t i v e
p r a y e r for t h e p a y m e n t to t h e obligee of a s u m n o t
exceeding t h e p r e s e n t jurisdictional a m o u n t of F100,000,
or in M e t r o Manila, P200.000, in lieu of t h e completion of
the construction, jurisdiction is in t h e inferior court as
such a l t e r n a t i v e p r a y e r m a k e s t h e action one for a s u m
of money (see Cruz vs. Tan, 87 Phil. 627).
c. An action for P1.250 and/or for t h e foreclosure of
a c h a t t e l m o r t g a g e of p e r s o n a l t y w o r t h F15,340 (now, it
s h o u l d be m o r e t h a n PIOO.OOO or, in M e t r o M a n i l a ,
P200.000) w a s u n d e r t h e j u r i s d i c t i o n of t h e C o u r t of
F i r s t I n s t a n c e b e c a u s e o f t h e l a t t e r a l t e r n a t i v e relief
s o u g h t (Good Development Corp. vs. Tutaan, et al.,
L-41641, Sept. 30,1976). Jurisdiction was likewise vested
in t h e C o u r t of F i r s t I n s t a n c e w h e r e none of t h e claims
of t h e p a r t n e r s h i p ' s c r e d i t o r s exceeded P2.000 b u t t h e
suit also s o u g h t t h e nullification of a contract executed
by and b e t w e e n t h e former p a r t n e r s , as t h e l a t t e r cause
of action is not capable of pecuniary e s t i m a t i o n (Singson,
et al. vs. Isabela Sawmill Co., et al., L-27343, Feb. 28,
1979).
d. W h e r e t h e case h i n g e s u p o n t h e correct interp r e t a t i o n of t h e r e n e w a l clause of a lease contract, t h e
action is not for unlawful d e t a i n e r b u t one which is not
capable of p e c u n i a r y e s t i m a t i o n a n d is, therefore, outside
the jurisdiction of t h e inferior court (Vda. de Murga vs.
Chan, L-24680, Oct. 7, 1968). B u t w h e r e t h e ejectment
case w a s decided a g a i n s t t h e defendants because of nonp a y m e n t of r e n t a l s , a l t h o u g h t h e i n t e r p r e t a t i o n of t h e
renewal clause of t h e lease contract was also involved
therein, t h e s a m e was within t h e jurisdiction of t h e inferior courts (Nueva Vizcaya Chamber of Commerce vs.
CA, et al., L-49059, May 29, 1980).

47

REMEDIAL LAW COMPENDIUM

I I I . Family Courts:
1. On October 28, 1997, Congress enacted R.A.
8369 ( F a m i l y C o u r t s Act of 1997; s e e Appendix P)
establishing a Family Court in every province and city
and, in case the city is t h e provincial capital, t h e Family
Court shall be established in t h e municipality w i t h the
highest population. Pending t h e e s t a b l i s h m e n t of such
Family Courts, t h e S u p r e m e Court shall d e s i g n a t e t h e
s a m e from a m o n g t h e b r a n c h e s of t h e R e g i o n a l T r i a l
Courts e n u m e r a t e d in the Act; and in a r e a s w h e r e t h e r e
a r e n o F a m i l y C o u r t s , t h e c a s e s w h i c h a r e w i t h i n its
exclusive original jurisdiction shall be adjudicated by t h e
Regional Trial Court.
2. F u r t h e r a m e n d a t o r y of t h e provisions of B.P.
Big. 129, a s a m e n d e d , t h e F a m i l y C o u r t s s h a l l h a v e
exclusive original jurisdiction in t h e following civil cases
or proceedings:
a. P e t i t i o n s for g u a r d i a n s h i p , custody of children,
habeas corpus in relation to t h e latter;
b . P e t i t i o n s for a d o p t i o n o f c h i l d r e n a n d t h e
revocation thereof;
c. Complaints for a n n u l m e n t of marriage, declaration
of nullity of m a r r i a g e and those relating to m a r i t a l s t a t u s
and property relations of h u s b a n d and wife or those living
t o g e t h e r u n d e r different s t a t u s a n d a g r e e m e n t s , a n d
petitions for dissolution of conjugal p a r t n e r s h i p of gains;
d. Petitions for s u p p o r t and/or acknowledgment;
e. S u m m a r y judicial proceedings b r o u g h t u n d e r t h e
provisions of Executive O r d e r No. 209 (Family Code of
the Philippines);
f. Petitions for declaration of s t a t u s of children as
a b a n d o n e d , d e p e n d e n t or neglected children, p e t i t i o n s
for voluntary or involuntary commitment of children; t h e
suspension, termination, or restoration of p a r e n t a l
a u t h o r i t y u n d e r P.D. 603, Executive Order No. 56 (Series
48

JUDICIARY REORGANIZATION ACT OF 1980

of 1986), a n d o t h e r related laws;


g. Petitions for t h e constitution of t h e family home;
and
h. C a s e s of domestic violence a g a i n s t w o m e n a n d
children, as defined t h e r e i n , b u t which do not constitute
c r i m i n a l offenses subject to c r i m i n a l p r o c e e d i n g s a n d
penalties.
3. I m p l e m e n t i n g the foregoing provisions, the
S u p r e m e Court approved on M a r c h 4, 2003 t h e Rule on
D e c l a r a t i o n o f A b s o l u t e N u l l i t y o f Void M a r r i a g e s
and A n n u l m e n t of Voidable M a r r i a g e s in A.M.
No. 02-11-10-SC (see Appendix AA) a n d t h e Rule on
Legal S e p a r a t i o n in A.M. No. 02-11-11-SC (see
Appendix
BB).
IV. M e t r o p o l i t a n T r i a l C o u r t s , Municipal Trial C o u r t s
a n d Municipal Circuit Trial Courts:
"SEC. 33. Jurisdiction of Metropolitan Trial Courts,
Municipal
Trial Courts and Municipal
Circuit
Trial
Courts in Civil Cases. M e t r o p o l i t a n T r i a l C o u r t s ,
Municipal Trial Courts and Municipal Circuit Trial
Courts shall exercise:
(1) E x c l u s i v e o r i g i n a l j u r i s d i c t i o n over civil
actions a n d p r o b a t e proceedings, t e s t a t e a n d intes t a t e , including t h e g r a n t of provisional remedies in
proper cases, where the value of the personal
property, e s t a t e , or a m o u n t of t h e d e m a n d does not
exceed One h u n d r e d t h o u s a n d pesos (P 100,000.00)
or, in M e t r o Manila w h e r e such personal property,
e s t a t e or a m o u n t of t h e d e m a n d does not exceed Two
h u n d r e d t h o u s a n d pesos (P200.000.00), exclusive of
interest, d a m a g e s of w h a t e v e r kind, attorney's fees,
litigation expenses, and costs, the a m o u n t of which
m u s t be specifically alleged: Provided, T h a t interest,
d a m a g e s of w h a t e v e r kind, attorney's fees, litigation
49

REMEDIAL LAW COMPENDIUM

expenses, and costs shall be included in the


d e t e r m i n a t i o n of t h e filing fees: Provided further,
T h a t w h e r e t h e r e are s e v e r a l claims or c a u s e s of
action b e t w e e n t h e s a m e or different p a r t i e s embodied in t h e s a m e complaint, t h e a m o u n t of t h e
demand shall be the totality of t h e claims in all t h e
causes of action, irrespective of w h e t h e r t h e causes
of action arose out of the s a m e or different
transactions;
(2) Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer: Provided, T h a t
when, in such cases, the defendant raises t h e question
of o w n e r s h i p in his pleadings and t h e q u e s t i o n of
possession cannot be resolved without deciding t h e
issue of ownership, t h e issue of ownership shall be
resolved only to determine the issue of possession; and
(3) Exclusive o r i g i n a l j u r i s d i c t i o n in all civil
actions which involve title to or possession of, real
property, or any i n t e r e s t t h e r e i n w h e r e t h e assessed
value of t h e p r o p e r t y or i n t e r e s t t h e r e i n does not
exceed Twenty thousand pesos (P20.000.00) or, in civil
actions in Metro Manila, w h e r e such assessed value
does not exceed Fifty t h o u s a n d pesos (P50.000.00)
exclusive of i n t e r e s t , d a m a g e s of w h a t e v e r k i n d ,
a t t o r n e y ' s fees, l i t i g a t i o n e x p e n s e s a n d costs:
Provided, T h a t in c a s e s of l a n d n o t d e c l a r e d for
t a x a t i o n purposes t h e value of such property shall be
d e t e r m i n e d by t h e a s s e s s e d value of t h e adjacent
lots." (As amended by R.A. 7691)
"SEC. 34. Delegated jurisdiction in cadastral and
land registration cases. M e t r o p o l i t a n T r i a l C o u r t s ,
Municipal Trial Courts, and Municipal Circuit Trial
Courts may be assigned by t h e S u p r e m e Court to h e a r
and determine cadastral or land registration cases
covering lots w h e r e t h e r e is no controversy or opposition,
or contested lots where t h e value of which does not exceed

50

JUDICIARY REORGANIZATION ACT OF 1980

One h u n d r e d t h o u s a n d pesos (PIOO.OOO.OO), such value


to be a s c e r t a i n e d by t h e affidavit of t h e c l a i m a n t or by
a g r e e m e n t of t h e respective c l a i m a n t s if t h e r e a r e more
t h a n one, or from t h e corresponding tax declaration of
the r e a l p r o p e r t y . T h e i r decisions in t h e s e cases shall be
appealable in t h e s a m e m a n n e r as decisions of t h e Regional Trial Courts." (As amended by R.A. 7691)
"Sec. 35. Special jurisdiction in certain cases. In
the absence of all t h e Regional Trial J u d g e s in a province
or city, a n y M e t r o p o l i t a n T r i a l J u d g e , Municipal Trial
Judge, Municipal Circuit Trial J u d g e may h e a r and decide
petitions for a w r i t of habeas corpus or applications for
bail in c r i m i n a l cases in t h e province or city w h e r e t h e
absent Regional T r i a l J u d g e s sit."
NOTES
1. The jurisdictional a m o u n t within t h e exclusive
original jurisdiction of the inferior courts has been
i n c r e a s e d to PIOO.OOO, or in M e t r o M a n i l a , P 2 0 0 . 0 0 0
exclusive of i n t e r e s t s , d a m a g e s , a t t o r n e y ' s fees, litigation
expenses a n d costs, b u t w i t h t h e proviso t h a t t h e a m o u n t
thereof m u s t be specifically alleged.
2. Unlike t h e jurisdictional t e s t in joinder of claims
or causes of action in the same complaint under the
J u d i c i a r y Act (Sec. 88), t h e t o t a l i t y of all t h e c l a i m s
a l l e g e d i n all t h e c a u s e s o f a c t i o n s h a l l f u r n i s h t h e
jurisdictional test whether the same pertains to the
same or different p a r t i e s a n d irrespective of w h e t h e r t h e
causes of action arose out of the same or different
t r a n s a c t i o n s , b u t subject to the rule in Sec. 6, Rule 3 if
permissive joinder of p a r t i e s is involved.
3. U n d e r t h e Judiciary Act (Sec. 88), an inferior court
could i s s u e t h e w r i t s o f p r e l i m i n a r y a t t a c h m e n t a n d
replevin w h e r e t h e principal action was within its jurisdiction, and the w r i t of p r e l i m i n a r y prohibitory or
51

REMEDIAL LAW COMPENDIUM

m a n d a t o r y injunction b u t only in forcible e n t r y cases


(cf. Sec. 3, Rule 70; Art. 539, Civil Code). U n d e r B.P.
Big. 129, provided t h a t t h e m a i n action is w i t h i n its
j u r i s d i c t i o n , in a d d i t i o n to t h e foregoing p r o v i s i o n a l
remedies an inferior court can appoint a receiver and it
has jurisdiction to issue a writ of preliminary injunction
in either forcible e n t r y or unlawful d e t a i n e r cases.
4. The inferior courts now have probate jurisdiction where t h e gross value of t h e e s t a t e , w h e t h e r t e s t a t e
or i n t e s t a t e , does not exceed P 100,000, or if in M e t r o
Manila, P200.000. However, it has been held u n d e r the
former provision w h e r e t h e j u r i s d i c t i o n a l a m o u n t w a s
only up to P20.000, t h a t w h e r e the property was t h e only
one wherein the decedent had any p r o p r i e t a r y rights, is
conjugal in n a t u r e , it is t h e total value of such conjugal
p r o p e r t y , a n d not only t h e v a l u e of t h e s h a r e of t h e
decedent therein, which should furnish t h e jurisdictional
t e s t . This is because t h e s e t t l e m e n t proceedings will
necessarily entail t h e dissolution and s e t t l e m e n t of t h e
conjugal p a r t n e r s h i p and the property thereof (Fernandez,
etc., et al. vs. Maravilla, L-18799, Mar. 31, 1964). T h u s ,
u n d e r the p r e s e n t jurisdictional rule, if t h e only property
of the conjugal p a r t n e r s h i p located outside Metro Manila
has a gross value of P 150,000, while said decedent's s h a r e
t h e r e i n which constitutes his e s t a t e is normally P75.000
in value, t h e proceedings will have to be i n s t i t u t e d in t h e
Regional Trial Court since t h e total value of said property
exceeds t h e probate jurisdiction of t h e inferior court.
5 . T h e r e g l e m e n t a r y p e r i o d s for a p p e a l s from
j u d g m e n t s or final o r d e r s of t h e different t r i a l c o u r t s
have been made uniform at 15 days from receipt thereof,
except in special p r o c e e d i n g s , cases w h e r e i n m u l t i p l e
appeals are permitted, and habeas corpus cases. For a
detailed discussion on t h e bases, modes and periods for
a p p e a l from a n d to different c o u r t s , see Lacsamana,
et al. vs. The Hon. Second Special Cases Division of the
52

JUDICIARY REORGANIZATION ACT OF 1980

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


Aug. 26, 1986), set out after Sec. 8, Rule 40 in t h i s volume.
Note also t h e c h a n g e s t h a t have s u p e r v e n e d since t h e n
by r e a s o n of t h e 1997 r e v i s i o n of t h e R u l e s of Civil
Procedure a n d r e l e v a n t decisions of t h e S u p r e m e Court,
as they a r e discussed in t h e corresponding p a r t s of t h i s
work.
An a m e n d e d outline of t h e p r e s e n t jurisdiction of our
courts in civil cases is p r e s e n t e d in t h e succeeding pages.
6. A notable initiative is t h e s u p e r v e n i n g adoption
by t h e S u p r e m e Court of t h e "Rule of Procedure for small
claims" on S e p t e m b e r 9, 2008 to t a k e effect on October 1,
2008 after t h e r e q u i s i t e p u b l i c a t i o n . This Rule is
reproduced in full, t o g e t h e r w i t h t h e forms a n d p a p e r s
involved in its operation a n d processes (see Appendix EE)
and a r e spelled out in simple details as to abviate t h e need
for clarifying c o m m e n t s for now. However, should t h e
a p p l i c a t i o n a n d f u t u r e w o r k i n g s o f t h e Rule P r o d u c e
situations which would require a m e n d m e n t s or
explanation, t h e m a t t e r will be duly brought to t h e reader's
attention, w i t h a r e p o r t of t h e court's action t h e r e o n .

53

REMEDIAL LAW COMPENDIUM

J U R I S D I C T I O N I N CIVIL C A S E S
I.

S U P R E M E COURT
A. Original
1. Exclusive
a. P e t i t i o n s for c e r t i o r a r i , p r o h i b i t i o n or
m a n d a m u s against:
(1) Court of Appeals;
(2) Court of Tax Appeals;
(3) S a n d i g a n b a y a n ;
(4) Commission on Elections; and
(5) Commission on Audit.
2. Concurrent
a. With t h e Court of Appeals
(1) Petitions for certiorari, prohibition or
m a n d a m u s against:
(a) Regional Trial Courts;
(b) Civil Service Commission;
(c) C e n t r a l B o a r d o f A s s e s s m e n t
Appeals;
(d) N a t i o n a l Labor R e l a t i o n s Commission; a n d
(e) O t h e r quasi-judicial agencies.
b. With t h e Court of Appeals a n d Regional
Trial Courts
(1) Petitions for certiorari, prohibition or
m a n d a m u s a g a i n s t courts of t h e first
level a n d o t h e r bodies; a n d
(2) Petitions for habeas corpus a n d quo
warranto.
c.

With Regional Trial Courts


(1) Actions a g a i n s t a m b a s s a d o r s , o t h e r
public ministers a n d consuls.
54

JURISDICTION IN CIVIL CASES

B. Appellate
1.

II.

Petitions for review on certiorari against:


a. Court of Appeals;
b. Court of Tax Appeals;
c. S a n d i g a n b a y a n ; a n d
d. Regional Trial Courts in cases involving
(1) C o n s t i t u t i o n a l i t y or v a l i d i t y of a
treaty, international or executive
a g r e e m e n t , law, p r e s i d e n t i a l decree,
proclamation, order, instruction,
ordinance, or regulation;
(2) Legality of a tax, impost, a s s e s s m e n t ,
toll or a p e n a l t y in relation t h e r e t o ;
(3) J u r i s d i c t i o n of a lower court; a n d
(4) Only e r r o r s or questions of law.

COURT OF APPEALS
A. Original
1.

Exclusive
a.

2.

Actions for a n n u l m e n t
Regional Trial Courts.

of j u d g m e n t s

of

Concurrent
a. W i t h t h e S u p r e m e Court (see P a r . 2, subp a r , a. on t h e original jurisdiction of t h e
S u p r e m e Court); a n d
b. With t h e S u p r e m e Court and t h e Regional
Trial C o u r t s (see P a r . 2, sub-par, b., loc.
cit.).

B. Appellate
1.

O r d i n a r y a p p e a l s from:
a. Regional Trial Courts, except in cases
exclusively a p p e a l a b l e t o t h e S u p r e m e
Court, supra; and
55

REMEDIAL LAW COMPENDIUM

b. Family Courts.
2. Appeal by petition for review from:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
d. Land Registration Authority;
e. Social Security Commission;
f. Office of the President;
g. Civil Aeronautics Board;
h. B u r e a u s u n d e r the Intellectual Property
Office;
i. National Electrification Administration;
j . Energy Regulatory Board;
k. National Telecommunications Commission;
1. D e p a r t m e n t of A g r a r i a n Reform u n d e r
R.A. 6657;
m. Government Service I n s u r a n c e System;
n. Employees Compensation Commission;
o. Agricultural Inventions Board;
p. I n s u r a n c e Commission;
q. Philippine Atomic Energy Commission;
r. Board of I n v e s t m e n t s ;
s. Construction Industry Arbitration Commission;
t. Office of t h e O m b u d s m a n , in a d m i n i s t r a tive disciplinary cases; and
u. Any o t h e r quasi-judicial agency, i n s t r u mentality, board or commission in the
e x e r c i s e of i t s q u a s i - j u d i c i a l f u n c t i o n s ,
such as voluntary a r b i t r a t o r s .
3. Petitions for review from t h e Regional Trial
C o u r t s i n cases a p p e a l e d t h e r e t o from t h e
lower courts.
56

JURISDICTION IN CIVIL CASES

I I I . R E G I O N A L TRIAL C O U R T S
A. Original
1. Exclusive
a. Actions t h e subject m a t t e r s whereof are not
capable of pecuniary estimation;
b. Actions involving title to or possession of
r e a l p r o p e r t y or an i n t e r e s t t h e r e i n , w h e r e
the assessed value of such property exceeds
P 2 0 . 0 0 0 or, i n M e t r o M a n i l a , P 5 0 . 0 0 0 ,
except forcible e n t r y and u n l a w f u l
detainer;
c.

Actions in a d m i r a l t y and m a r i t i m e jurisdiction w h e r e t h e d e m a n d or claim exceeds


PIOO.OOO or, in M e t r o Manila, P200.000;
d. M a t t e r s of p r o b a t e , t e s t a t e or i n t e s t a t e ,
w h e r e t h e gross value of t h e e s t a t e exceeds
P100,000 or, in M e t r o Manila, P200.000;
e. Cases not within t h e exclusive jurisdiction
of any court, t r i b u n a l , person or body exercising judicial or quasi-judicial functions;
f. Actions a n d special proceedings within t h e
exclusive original jurisdiction of t h e Court
of A g r a r i a n Relations as now provided by
law; a n d
g. O t h e r cases w h e r e t h e demand, exclusive
o f i n t e r e s t , d a m a g e s , a t t o r n e y ' s fees,
litigation expenses and costs, or t h e value
of t h e p r o p e r t y exceeds P 100,000 or, in
Metro Manila, P200,000.
2.

Concurrent
a. With t h e S u p r e m e Court:
(1) Actions affecting a m b a s s a d o r s , other
public ministers and consuls.
b. With t h e S u p r e m e Court and the Court of
Appeals:
57

REMEDIAL LAW COMPENDIUM

(1) Petitions for certiorari, prohibition and


mandamus as stated in par. 2, sub-par.
b on t h e original jurisdiction of t h e
Supreme Court.
(2) Petitions for habeas corpus and quo
warranto.
B. Appellate
All c a s e s decided by lower c o u r t s in t h e i r
respective territorial jurisdictions.
IV. FAMILY C O U R T S
A. Original
1. Exclusive
a. P e t i t i o n s for g u a r d i a n s h i p , c u s t o d y of
children, habeas corpus in relation to t h e
latter;
b. Petitions for adoption of children a n d t h e
revocation thereof;
c. C o m p l a i n t s for a n n u l m e n t of m a r r i a g e ,
declaration of nullity of m a r r i a g e a n d those
relating to marital status and property
r e l a t i o n s of h u s b a n d a n d wife or t h o s e
living t o g e t h e r u n d e r different s t a t u s a n d
a g r e e m e n t s , a n d petitions for dissolution
of conjugal p a r t n e r s h i p of gains;
d . P e t i t i o n s for s u p p o r t a n d / o r a c k n o w l edgment;
e. Summary judicial proceedings brought
u n d e r t h e provisions of Executive O r d e r
No. 209 (Family Code of t h e Philippines);
f. P e t i t i o n s for d e c l a r a t i o n of s t a t u s of
children as abandoned, dependent or
neglected children, for t h e v o l u n t a r y or
involuntary c o m m i t m e n t of children, a n d
for t h e s u s p e n s i o n , t e r m i n a t i o n , o r
58

JURISDICTION IN CIVIL CASES

restoration of parental authority under


P.D. 603, Executive O r d e r No. 56, s. 1986,
a n d o t h e r r e l a t e d laws;
g. Petitions for t h e constitution of t h e family
home; a n d
h. Cases of domestic violence a g a i n s t women
a n d children, as defined t h e r e i n , b u t which
do not c o n s t i t u t e criminal offenses subject
to criminal prosecution a n d p e n a l t i e s .
V.

METROPOLITAN, MUNICIPAL, AND MUNICIPAL CIRCUIT TRIAL COURTS


A. Original
1.

Exclusive
a. Actions involving personal property valued
at not more t h a n P 100,000 or, in M e t r o
Manila, =P200,000;
b . A c t i o n s d e m a n d i n g s u m s o f m o n e y not
exceeding P 100,000 or, in Metro Manila,
P200.000, exclusive of interest, d a m a g e s ,
a t t o r n e y ' s fees, litigation e x p e n s e s , a n d
costs;
c. Actions in a d m i r a l t y a n d m a r i t i m e jurisdiction w h e r e t h e d e m a n d or claim does not
e x c e e d P 1 0 0 . 0 0 0 or, i n M e t r o M a n i l a ,
P200,000, exclusive of interest, d a m a g e s ,
a t t o r n e y ' s fees, litigation e x p e n s e s , a n d
costs;
d. P r o b a t e proceedings, t e s t a t e or i n t e s t a t e ,
w h e r e t h e gross value of t h e e s t a t e does
not exceed P 100,000 or, in Metro Manila,
P200.000 ;
e. Forcible entry and unlawful detainer
cases;

59

REMEDIAL LAW COMPENDIUM

RULE 1

SEC. 1

f.

Actions involving title to or possession of


real property, or any interest therein,
where t h e assessed value does not exceed
P20.000 or, in Metro Manila, P50.000, exclusive of i n t e r e s t , d a m a g e s , a t t o r n e y ' s
fees, litigation expenses, and costs; and
g. Provisional remedies where the principal
action is within t h e i r jurisdiction.
2.

Delegated
a. C a d a s t r a l or land registration cases
covering lots where t h e r e is no controversy
or opposition, or contested lots t h e value
of which does not exceed P 100,000, as may
be assigned by t h e S u p r e m e Court.

3.

Special
a. Petitions for habeas corpus in t h e absence
of all t h e R e g i o n a l T r i a l J u d g e s in t h e
province or city.

4. S u m m a r y Procedure
a. Forcible entry and unlawful d e t a i n e r cases
irrespective of t h e a m o u n t of d a m a g e s or
unpaid r e n t a l s sought to be recovered; and
b. All other court cases, except p r o b a t e proceedings, w h e r e t h e total claim does not
exceed P 10,000, exclusive of i n t e r e s t a n d
costs.

60

RULE 1

GENERAL PROVISIONS

SEC. 1

D. T H E R E V I S E D R U L E S OF COURT*
P u r s u a n t t o t h e p r o v i s i o n s o f s e c t i o n 5(5) o f
Article VIII o f t h e C o n s t i t u t i o n , t h e S u p r e m e C o u r t
h e r e b y a d o p t s a n d p r o m u l g a t e s t h e following r u l e s
concerning the protection and enforcement of
constitutional r i g h t s , pleading, practice and procedure in
all c o u r t s , t h e a d m i s s i o n t o t h e p r a c t i c e o f law, t h e
Integrated Bar, and legal assistance to the underprivileged:
RULE 1
GENERAL PROVISIONS
S e c t i o n 1. Title of the Rules. T h e s e R u l e s s h a l l
b e k n o w n a n d c i t e d a s t h e R u l e s o f C o u r t . (1)
NOTES
1. The Rules of Court have t h e force and effect of
law (Shioji vs. Harvey, etc., et al., 43 Phil. 333; Alvero
vs. De la Rosa, etc., et al., 76 Phil. 428; Conlu vs. CA,
et al., 106 Phil. 940). They a r e not p e n a l s t a t u t e s and
cannot be given retroactive effect (Rilloraza vs. Arciaga,
L 23848, Oct. 31, 1967; Bermejo vs. Barrios, L-23614,
Feb. 27, 1970). However, s t a t u t e s r e g u l a t i n g the procedure of courts may be made applicable to cases pending
at the time of t h e i r passage and are retroactive in t h a t
sense (see Alday vs. Camilon, G.R. No. 60316, Jan. 31,
1983).
2. " W h e n by l a w j u r i s d i c t i o n is c o n f e r r e d on a
court or judicial officer, all auxiliary writs, processes and
*Theae revised Rules of Civil Procedure were approved by the
Supreme Court in its Resolution in Bar Matter No. 803, dated April 8,
1997, to take effect on July 1, 1997.

61

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. 2

o t h e r m e a n s n e c e s s a r y to c a r r y it into effect may be


employed by such court or officer; and if the procedure to
be followed in t h e exercise of such j u r i s d i c t i o n is not
specifically pointed out by law or by t h e s e r u l e s , any
suitable process or mode of proceeding may be adopted
which a p p e a r s conformable to t h e spirit of said law or
rules" (Sec. 6, Rule 135).
It will be observed t h a t t h i s r e l e v a n t provision of
Rule 135 refers only to auxiliary w r i t s , processes a n d
other necessary means to carry out the jurisdiction
specifically conferred by law on the court over t h e main
suit or proceeding. See t h e related discussion over t h i s
ancillary jurisdiction of courts u n d e r Sec. 1, Rule 57.
3. The Code of Civil Procedure (Act No. 190) is one
of the majn sources of the old Rules of Court which took
effect o r / J u l y 1, 1940 and, in t u r n , of t h e p r e s e n t revised
Rules. However, certain provisions of t h e Code of Civil
Procedure which were not incorporated in or repealed
by the Rules are still considered in force. These provisions
are:
"7^
"Sec. 4 2 . Exceptions in Favor of Persons under
Disability. If a person entitled to bring t h e action
mentioned in t h e preceding sections of t h i s c h a p t e r
(Sec. 40. Action for recovery of title to or possession
of real property or an interest therein) is, at t h e time
t h e cause of action accrues, within t h e age of minority, of u n s o u n d mind or in prison, such person may,
after t h e expiration of t e n y e a r s from t h e time the
c a u s e of action a c c r u e s , b r i n g s u c h a c t i o n w i t h i n
t h r e e years after such disability is removed."
"Sec. 4 5 . Rights Saved to Certain Persons. If a
p e r s o n e n t i t l e d t o b r i n g a n y action m e n t i o n e d i n
e i t h e r of t h e two last p r e c e d i n g sections (Sec. 43.
Actions other than for recovery of real property;
Sec. 44. Any other action for relief) is, at t h e time t h e
cause of action accrues, within the age of minority,
62

RULE 1

GENERAL PROVISIONS

SEC. 3

of u n s o u n d mind, or in prison, such person may bring


such action within two y e a r s after t h e disability is
removed u n l e s s t h e r i g h t of action is one of those
n a m e d in subdivision four of section forty-three, in
which case it may be brought within one y e a r after
such disability is removed."
:

"Sec. 4 7 . As to Absent Persons. If, w h e n a


cause of action accrues a g a i n s t a person, he is out
of the Philippine Islands, or has absconded or
c o n c e a l e d himself, a n d h a s n o k n o w n o r visible
p r o p e r t y w i t h i n t h e I s l a n d s t h e period limited for
t h e commencement of t h e action shall not begin to
r u n u n t i l he comes into t h e Islands or while he is so
absconded or concealed, or u n t i l he h a s k n o w n or
visible p r o p e r t y w i t h i n t h e Islands; a n d if, after t h e
cause of action accrues, he d e p a r t s from t h e Philippine I s l a n d s , or absconds or conceals himself, t h e
t i m e of h i s a b s e n c e or c o n c e a l m e n t s h a l l not be
c o m p u t e d as a n y p a r t of t h e period w i t h i n which
time t h e cause of action should be brought."
It should be noted t h a t Art. 2270(3) of t h e Civil Code
repeals only t h e provisions of t h e Code of Civil Procedure
on prescription as far as t h e l a t t e r may be inconsistent
with t h e former, a n d A r t s . 1106 to 1155 of the Civil Code
do not provide for t h e above s i t u a t i o n s . Art. 1108 of said
Code provides t h a t extinctive prescription r u n s against
minors or incapacitated persons only if they have p a r e n t s ,
g u a r d i a n s or legal r e p r e s e n t a t i v e s .
4* F u r t h e r m o r e , it h a s been held t h a t not all t h e provisions in t h e Code of Civil P r o c e d u r e a r e r e m e d i a l in
n a t u r e , such as those p e r t a i n i n g to prescription, t h e requisites for m a k i n g a will, a n d t h e succession to t h e e s t a t e
of t h e adopted child (Primicias vs. Ocampo, etc., et al., 93
Phil. 446). Specifically w i t h respect to t h e above-quoted
provisions on prescription, not being procedural in n a t u r e ,
they cannot be deemed to have been impliedly repealed

63

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. 4

j u s t because they were not incorporated in t h e Rules of


C o u r t . Being s u b s t a n t i v e i n n a t u r e , a n d not h a v i n g
been eliminated by substantive law as above explained,
these provisions are consequently still in force.
4. In t h e i n t e r e s t of j u s t and expeditious proceedings, t h e S u p r e m e Court may suspend t h e application of
t h e Rules of Court and except a case from their operation
because the Rules were precisely adopted with t h e prim a r y objective of e n h a n c i n g fair t r i a l a n d expeditious
justice (Republic vs. CA, et al, L-3130304, May 31, 1978).
S e c . 2. In what courts applicable. T h e s e R u l e s
s h a l l a p p l y i n all t h e c o u r t s , e x c e p t a s o t h e r w i s e
p r o v i d e d b y t h e S u p r e m e Court, (n)
NOTES
1.

The 1987 Constitution provides in Art. VIII thereof

that:
"Sec. 5. The S u p r e m e Court s h a l l have the
following powers:
(5) P r o m u l g a t e r u l e s concerning t h e protection
and enforcement of constitutional r i g h t s , pleading,
practice, and procedure in all courts, t h e admission
to t h e practice of law, t h e I n t e g r a t e d Bar, a n d legal
assistance to t h e underprivileged. Such rules shall
provide a simplified a n d inexpensive procedure for
t h e speedy disposition of cases, shall be uniform for
all courts of t h e same grade, and shall not diminish,
i n c r e a s e , or modify s u b s t a n t i v e r i g h t s . R u l e s of
procedure of special courts and quasi-judicial bodies
s h a l l r e m a i n effective u n l e s s d i s a p p r o v e d b y t h e
S u p r e m e Court."

64

RULE 1

GENERAL PROVISIONS

SEC. 6

2. P.D. 946 provided that t h e "Rules of Court shall


not be applicable to a g r a r i a n cases, even in a suppletory
c h a r a c t e r " and e a c h C o u r t of A g r a r i a n R e l a t i o n s t h e n
had t h e a u t h o r i t y to adopt any a p p r o p r i a t e procedure,
except t h a t i n c r i m i n a l a n d e x p r o p r i a t i o n c a s e s , t h e
Rules of Court shall apply (Sec. 16). U n d e r B.P. Big. 129,
said a g r a r i a n c o u r t s were i n t e g r a t e d into t h e Regional
Trial C o u r t s as b r a n c h e s thereof, and "the l a t t e r shall
have exclusive original jurisdiction over said cases and
proceedings b u t they shall continue to apply t h e special
rules of procedures u n d e r t h e p r e s e n t laws" (Sec. 24).
R.A. 6657 subsequently provided for t h e designation
of at least one b r a n c h of t h e Regional Trial Court within
each province to act as a Special A g r a r i a n Court. The
Special A g r a r i a n Courts shall have original and exclusive
jurisdiction over all p e t i t i o n s for t h e d e t e r m i n a t i o n of
just compensation to l a n d o w n e r s and t h e prosecution of
all c r i m i n a l offenses u n d e r said Act (Sees. 56 and 57).
On t h e o t h e r h a n d , t h e D e p a r t m e n t of A g r a r i a n Reform
is v e s t e d w i t h p r i m a r y j u r i s d i c t i o n a n d quasi-judicial
powers to d e t e r m i n e a n d adjudicate all o t h e r a g r a r i a n
reform m a t t e r s . It shall not be bound by t h e technical
r u l e s o f p r o c e d u r e a n d e v i d e n c e b u t m a y employ all
reasonable m e a n s to a s c e r t a i n t h e facts in accordance
with justice, equity a n d t h e m e r i t s of t h e case (Sec. 50).
S e c . 3. Cases governed. T h e s e R u l e s s h a l l
govern the procedure to be observed in actions,
civil o r c r i m i n a l , a n d s p e c i a l p r o c e e d i n g s .
(a) A c i v i l a c t i o n is o n e by w h i c h a p a r t y s u e s
a n o t h e r for t h e e n f o r c e m e n t o r p r o t e c t i o n o f a
right, or the p r e v e n t i o n or redress of a wrong,
( l a , R2)
A civil action may either be ordinary or special.
B o t h a r e g o v e r n e d b y t h e r u l e s for o r d i n a r y c i v i l
a c t i o n s , s u b j e c t t o t h e s p e c i f i c r u l e s p r e s c r i b e d for
a s p e c i a l c i v i l a c t i o n , (n)
65

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. S

(b) A c r i m i n a l a c t i o n is o n e by w h i c h t h e S t a t e
p r o s e c u t e s a p e r s o n for an a c t or o m i s s i o n
p u n i s h a b l e by l a w . (n)
(c) A s p e c i a l p r o c e e d i n g is a r e m e d y by w h i c h a
p a r t y s e e k s to e s t a b l i s h a s t a t u s , a r i g h t , or a
p a r t i c u l a r fact. (2a, R2)
NOTES
1. In t h e Philippines, t h e r e is no difference between
a "suit" and an "action" as our courts are courts of law and
equity (see Lopez vs. Filipinos Cia. de Seguros, L-19613,
April 30, 1966). Likewise, in A m e r i c a n law, t h e t e r m s
" a c t i o n " a n d " s u i t " a r e now n e a r l y , i f n o t e n t i r e l y ,
synonymous (Elmos vs. James, Tex. Civ. App., 282 S.W.
835; Coleman vs. Los Angeles County, 180 Cal. 714, 182
P. 440), or if t h e r e be a distinction, it is t h a t t h e t e r m
"action" is generally confined to proceedings in a court
of law, while "suit" is equally applied to prosecutions at
law or in equity (Black's Law Dictionary, 6th Ed., p. 1434).
2. The S u p r e m e Court h a s i n h e r e n t jurisdiction t h a t
it can always exercise in s e t t i n g s a t t e n d e d by u n u s u a l
c i r c u m s t a n c e s to p r e v e n t manifest injustice t h a t could
result to b a r e technical adherence to t h e law a n d imprecise j u r i s p r u d e n c e (Co vs. PNB, G.R. No. 51767, June 29,
1982).
3. In an ordinary action, t h e r e m u s t be r e a l p a r t i e s
in i n t e r e s t a s s e r t i n g adverse claims and p r e s e n t i n g a ripe
issue (Tolentino vs. Board of Accountancy, 90 Phil. 88).
S e c . 4. In what cases not applicable. T h e s e R u l e s
shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proc e e d i n g s , a n d o t h e r c a s e s n o t h e r e i n p r o v i d e d for,
except by analogy or in a suppletory character and
w h e n e v e r p r a c t i c a b l e a n d c o n v e n i e n t . (R143a)
66

RULE 1

GENERAL PROVISIONS

SEC. 5

NOTE
1.

See Note 3 u n d e r Sec. 5, Rule 2.

C' r'\

S e c . 5. Commencement of action. A c i v i l a c t i o n
is commenced by the filing of the original complaint
in court. If an additional defendant is impleaded in
a later pleading, the action is c o m m e n c e d with
regard to h i m on the date of the filing of such later
p l e a d i n g , i r r e s p e c t i v e o f w h e t h e r t h e m o t i o n for i t s
a d m i s s i o n ^ i f n e c e s s a r y , i s d e n i e d b y t h e c o u r t . (6a)
NOTES
1. This provision a s s u m e s significance especially
w h e r e p r e s c r i p t i o n is r a i s e d as a defense a g a i n s t t h e
claim of t h e plaintiff in t h e complaint. T h u s , as long as
the complaint which commences t h e action is filed within
the prescriptive period, t h e claim alleged t h e r e i n is not
barred even if s u m m o n s was served on t h e defendant after
the prescriptive period (Sotelo vs. Dizon, et al., 57 Phil.
573; Cabrera, et al. vs. Tiano, L-17299, July 31, 1963).
2. S u c h action may be commenced by filing t h e
complaint by registered mail. Hence, if t h e complaint was
duly s e n t to t h e proper court by registered mail within
the prescriptive period and in accordance with the
r e q u i r e m e n t s of Sec. 3, Rule 13, t h e fact t h a t said complaint, as mailed, was actually received by the clerk of
said court after t h e lapse of t h e prescriptive period is
i m m a t e r i a l as t h e d a t e of mailing is considered t h e date
of the filing of said complaint. However, if t h e requisite
docket fee was actually paid, e i t h e r personally or also by
mail, s u b s e q u e n t to t h e mailing of said complaint, t h e
d a t e of s u c h p a y m e n t or the m a i l i n g of s a i d a m o u n t
therefor shall be considered as the d a t e of t h e filing of
the complaint (Ago Timber Corp. vs. Ruiz, et al., L-23887,
Dec. 26, 1967). Where t h e r e was an u n d e r a s s e s s m e n t of

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. 5

t h e d o c k e t fee to be paid due to an i n i t i a l l y h o n e s t


difference of opinion as to the n a t u r e of t h e action, the
plaintiff w a s p e r m i t t e d to s u b s e q u e n t l y complete t h e
p a y m e n t by paying the difference (Magaspi vs. Ramolete,
L-34840, July 20, 1982).
3. Ordinarily, t h e rule was t h a t a case is deemed
filed only upon t h e p a y m e n t of t h e docket fee. The Court
acquires jurisdiction over the case only upon full p a y m e n t
of such prescribed docket fee. All complaints, petitions,
a n s w e r s and similar pleadings m u s t specify the a m o u n t
of d a m a g e s being p r a y e d for b o t h in t h e body of t h e
pleading and in t h e p r a y e r t h e r e i n , and said d a m a g e s
shall be considered in the a s s e s s m e n t of the filing fees;
otherwise, such pleading shall not be accepted for filing
or shall be expunged from t h e record. Any defect in t h e
original pleading resulting in u n d e r p a y m e n t of t h e docket
fee cannot be cured by a m e n d m e n t , such as by t h e reduction of t h e claim as, for all legal purposes, t h e r e is no
original c o m p l a i n t over which t h e c o u r t h a s a c q u i r e d
jurisdiction (Manchester Development Corporation, et al.
vs. CA, et al., G.R. No. 75919, May 1, 1987).
H o w e v e r , t h e a f o r e s t a t e d r u l i n g i n Manchester
Development Corporation, et al. vs. CA, et al. h a s been
modified as follows: (1) when t h e filing of t h e initiatory
pleading is not accompanied by p a y m e n t of t h e docket
fee, t h e c o u r t may allow p a y m e n t of t h e fee w i t h i n a
reasonable time but not beyond the applicable prescriptive
or r e g l e m e n t a r y period; (2) t h e s a m e r u l e a p p l i e s to
permissive counterclaims, t h i r d - p a r t y claims a n d similar
pleadings; and (3) when t h e t r i a l court acquires jurisdiction over a claim by t h e filing of t h e a p p r o p r i a t e
pleading a n d p a y m e n t of t h e prescribed filing fee but,
subsequently, the j u d g m e n t a w a r d s a claim not specified
in t h e pleadings, or if specified t h e s a m e has been left
for d e t e r m i n a t i o n by the court, the additional filing fee
therefor shall constitute a lien on the judgment which shall
be enforced and t h e additional fee assessed a n d collected
68

RULE 1

GENERAL PROVISIONS

SEC. 5

by t h e clerk of court (Sun Insurance Office, Ltd., et al.


vs. Asuncion, et al., G.R. Nos. 79937-38, Feb. 13, 1989).
4. It is t r u e t h a t Manchester laid down the rule t h a t
all complaints should specify t h e a m o u n t of t h e d a m a g e s
prayed for not only in t h e body of t h e complaint b u t also
i n t h e p r a y e r . T h a t r u l e , however, h a s been relaxed.
Thus, while t h e body of t h e complaint in t h i s case is silent
as to t h e exact a m o u n t of d a m a g e s , t h e p r a y e r did specify
the a m o u n t . These a m o u n t s were definite enough and
enabled t h e clerk of c o u r t to c o m p u t e t h e docket fees
payable. F u r t h e r m o r e , t h e a m o u n t s claimed need not be
initially s t a t e d w i t h m a t h e m a t i c a l precision. Section 5(a),
Rule 141 allows an a p p r a i s a l "more or less," t h a t is, a final
d e t e r m i n a t i o n is still to be made and t h e fees ultimately
found to be payable will e i t h e r be additionally paid by or
refunded to t h e p a r t y concerned, as t h e case may be. The
party is, therefore, allowed to make an initial p a y m e n t of
the filing fees c o r r e s p o n d i n g to t h e e s t i m a t e d a m o u n t
of the claim subject to a d j u s t m e n t as to w h a t may later
be proved (Ng Soon vs. Alday, et al., G.R. No. 85879,
Sept. 29, 1989).
5. W h e r e t h e action involves r e a l property (such as
an accion publiciana) a n d r e l a t e d claims for d a m a g e s , t h e
legal fees s h a l l be a s s e s s e d on b o t h t h e v a l u e of t h e
property a n d t h e t o t a l a m o u n t o f t h e d a m a g e s sought.
Where t h e fees prescribed for an action involving r e a l
property have been paid but t h e a m o u n t s for t h e related
d a m a g e s being d e m a n d e d t h e r e i n a r e unspecified, t h e
action may not be dismissed. The court acquired
jurisdiction over t h e action involving real property upon
t h e filing o f t h e c o m p l a i n t a n d t h e p a y m e n t o f t h e
prescribed fee therefor. It is not divested of t h a t authority
by the fact t h a t it may not have acquired jurisdiction over
the accompanying claims for d a m a g e s because of lack of
specification thereof. Said claims for damages as to which
no a m o u n t s a r e s t a t e d may simply be expunged or t h e
69

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. 6

court, on motion, may allow a reasonable t i m e for t h e


a m e n d m e n t of the complaint so as to allege t h e precise
a m o u n t of the damages and accept p a y m e n t of t h e fees
t h e r e f o r , p r o v i d e d said claims for d a m a g e s h a v e not
become time-barred (Tacay, et al. vs. Regional Trial Court
ofTagum, etc., et al, G.R. Nos. 88075-77, Dec. 20, 1989).
6. The a m o u n t of docket fees to be paid should be
c o m p u t e d on t h e b a s i s of t h e a m o u n t of t h e d a m a g e s
stated in t h e complaint. Where, subsequently, t h e judgm e n t a w a r d s a claim not specified in t h e p l e a d i n g or,
if specified, t h e same has been left for t h e d e t e r m i n a t i o n
of t h e c o u r t , t h e a d d i t i o n a l filing fee t h e r e f o r s h a l l
c o n s t i t u t e a l i e n on t h e j u d g m e n t . S u c h " a w a r d s of
claims not specified in t h e p l e a d i n g " refer only to
damages arising after the filing of t h e complaint or similar
p l e a d i n g . A c c o r d i n g l y , t h e a m o u n t o f a n y c l a i m for
d a m a g e s arising on or before t h e filing of t h e complaint
or any pleading should be specified. The exception
contemplated as to claims not specified or to claims which
a l t h o u g h specified a r e left to t h e d e t e r m i n a t i o n of t h e
court is limited only to d a m a g e s t h a t m a y a r i s e after
t h e filing of t h e complaint or similar p l e a d i n g since it
will not be possible for t h e claimant to specify or speculate
on t h e a m o u n t t h e r e o f (Ayala Corporation, et al vs.
Madayag, et al, G.R. No. 88421, Jan. 30, 1990).
7. It is well settled in our jurisdiction t h a t , unless
o t h e r w i s e provided by law or r e q u i r e d by public
i n t e r e s t , as in quo w a r r a n t o actions (see Note 3 u n d e r
Sec. 11, Rule 66), before bringing an action in or r e s o r t i n g
to t h e c o u r t s of justice, all r e m e d i e s of a d m i n i s t r a t i v e
c h a r a c t e r affecting or d e t e r m i n a t i v e of t h e controversy
at t h a t level should first be e x h a u s t e d by t h e aggrieved
p a r t y (Pestanas vs. Dyogi, L-25786, Feb. 27, 1978; Miguel
vs. Vda. de Reyes, 93 Phil. 542; Coloso vs. Board, L-5750,
April 30, 1950). It is likewise t r u e , however, t h a t t h e
doctrine of e x h a u s t i o n of a d m i n i s t r a t i v e remedies is not a
h a r d and fast rule.
70

RULE 1

GENERAL PROVISIONS

SEC. 6

This Title does not apply and has been disregarded


when: (1) t h e issue is purely a legal one, and nothing of
an a d m i n i s t r a t i v e n a t u r e is to be a n d can be done (Dauan
vs. Secretary of Agriculture and Natural Resources, et al.,
L-19547, Jan. 31, 1967; Aguilar vs. Valencia, L-30396,
July 30, 1971; Commissioner of Immigration vs. Vamenta,
L-34030, May 31, 1972; Del Mar vs. Phil. Veterans Adm.,
L-27299, June 27, 1973; Bagatsing vs. Ramirez, L-41631,
Dec. 17, 1976); (2) insistence on its observance would
result in nullification of the claim being asserted
(Gravador vs. Mamigo, L-24989, July 21, 1967); (3) t h e
c o n t r o v e r t e d a c t is p a t e n t l y illegal or w a s p e r f o r m e d
without jurisdiction or in excess of jurisdiction (Industrial
Power Sales, Inc. vs. Sinsuat, L-29171, April 15, 1988);
(4) t h e r e s p o n d e n t is a d e p a r t m e n t secretary, whose acts
a s a n a l t e r ego o f t h e P r e s i d e n t b e a r t h e i m p l i e d o r
assumed approval of the latter, unless actually disapproved
by him (Demaisip vs. CA, et al, 106 Phil. 237); (5) t h e r e
are circumstances indicating the urgency of judicial
intervention (Gonzales vs. Hechanova, L-21897, Oct. 22,
1963; Abaya vs. Villegas, L-25641, Dec. 17, 1966; Mitra
vs. Subido, L-21691, Sept. 15, 1967); (6) t h e rule does not
provide a plain, speedy and a d e q u a t e remedy (Cipriano
vs. Marcelino, L-27793, Feb. 28, 1972); (7) t h e r e is a
violation of due process (Quisumbing vs. Gumban, G.R.
No. 85156, Feb. 5, 1991; Salinas vs. NLRC, et al,
G.R. No. 114671, Nov. 24, 1999); (8) t h e r e is estoppel on
the p a r t of t h e a d m i n i s t r a t i v e agency concerned (Vda. de
Tan vs. Veterans Backpay Commission, 105 Phil 377);
(9) t h e r e is i r r e p a r a b l e injury (De Lara vs. Cloribel, 121
Phil. 1062); (10) to require exhaustion of a d m i n i s t r a t i v e
remedies would be u n r e a s o n a b l e (Cipriano vs. Marcelino,
et al, 150 Phil. 336); (11) t h e subject m a t t e r is a private
land in land case proceedings (Soto vs. Jareno, L-38962,
Sept. 15, 1986); a n d (12) t h e i s s u e of e x h a u s t i o n
of administrative proceedings has been rendered
moot (Carale, etc., et al. vs. Abarintos, etc., et al.,
G.R. No. 120704, Mar. 3, 1997).
71

RULE 1

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SEC. 6

S e c . 6. Construction. T h e s e R u l e s s h a l l be
liberally construed in order to promote their
objective of securing a just, speedy and i n e x p e n s i v e
d i s p o s i t i o n o f e v e r y a c t i o n a n d p r o c e e d i n g . (2a)
NOTES
1. This section is a recognition of the fact t h a t the
rules of procedure are mere tools designed to facilitate the
a t t a i n m e n t of justice. Thus, the liberal construction of
t h e s e Rules h a s b e e n allowed in t h e following c a s e s :
(1) w h e r e a rigid a p p l i c a t i o n will r e s u l t in m a n i f e s t
failure or miscarriage of justice; (2) where t h e i n t e r e s t of
s u b s t a n t i a l justice will be served; (3) where t h e resolution
of the motion is addressed solely to the sound and judicious
discretion of the court; and (4) where t h e injustice to t h e
adverse p a r t y is not c o m m e n s u r a t e with t h e degree of his
t h o u g h t l e s s n e s s in not complying w i t h t h e p r e s c r i b e d
procedure (Tan us. CA, et al., G.R. No. 130314, Sept. 22,
1998).
2. In fact, in line with the spirit and purpose of this
section, even t h e suspension of t h e rules may be justified
in t h e i n t e r e s t of fair play. As- early as t h e case of Vda.
de Ordonez us. Raymundo (63 Phil. 275), it was held t h a t
the court has the power to suspend the rules, or to
except a p a r t i c u l a r case from t h e i r operation, w h e n e v e r
the ends of justice so require.
J u r i s p r u d e n c e h a s laid down t h e r a n g e of r e a s o n s
which m a y provide justification for a c o u r t to r e s t r i c t
adherence to procedure, e n u m e r a t i n g grounds for giving
d u e course to an o t h e r w i s e objectionable a p p e a l by a
suspension of t h e enforcement of procedural rules, viz.:
(1) i n m a t t e r s o f life, l i b e r t y , h o n o r o r p r o p e r t y ;
(2) c o u n s e l ' s n e g l i g e n c e w i t h o u t a n y p a r t i c i p a t o r y
negligence on the p a r t of t h e client; (3) t h e existence of
special or compelling circumstances; (4) the evident merits
of t h e case; (5) a cause not entirely a t t r i b u t a b l e to the
72

RULE 1

GENERAL PROVISIONS

SEC. 6

fault or negligence of the p a r t y favored by t h e suspension


of the rules; () the lack of any showing t h a t t h e review
s o u g h t is merely frivolous a n d d i l a t o r y ; a n d (7) t h e
o t h e r p a r t y will n o t b e u n j u s t l y p r e j u d i c e d t h e r e b y
(Baylon vs. Fact-finding Intelligence Bureau, etc., et al.,
G.R. No. No. 150870, Dec. 11, 2002).
3. While the Rules are liberally construed, the
provisions on reglementary periods are strictly applied as
they are "deemed indispensable to the prevention of
needless delays and necessary to the orderly and speedy
discharge of judicial business" (Alvero vs. De la Rosa, et
al., 76 Phil. 428; Valdez vs. Ocumen, et al, 106 Phil 929;
Mangali, et al. vs. CA, et al, L-47296, Aug. 21, 1980; cf.
Legaspi-Santos vs. CA, et al, G.R. No. 60577, Oct. 11,
1983) a n d strict compliance t h e r e w i t h is m a n d a t o r y and
i m p e r a t i v e (FJR Garments Industries vs. CA, et al,
L-49320, June 29, 1984). The same is t r u e with respect
to t h e r u l e s on t h e m a n n e r a n d periods for perfecting
appeals (Gutierrez vs. CA, et al, L-25972, Nov. 26, 1968),
and the r e q u i r e m e n t s as to w h a t should a p p e a r on the
face of a record on a p p e a l (Workmen's Insurance Co.,
Inc. vs. Augusto, et al, L-31060, July 29, 1971), although
these r u l e s have s o m e t i m e s been relaxed on equitable
considerations (see Pimentel, et al. vs. CA, et al, L-39684,
June 27, 1975; Bagalamon, et al. vs. CA, et al, L-43043,
Mar. 31, 1977).
All t h i n g s c o n s i d e r e d , t h e S u p r e m e C o u r t called
attention to t h e fact t h a t "(v)ules of procedure exist for a
purpose, and to disregard such rules in the guise of liberal
construction would be to defeat such purpose. Procedural
rules are not to be disclaimed as mere technicalities. They
may not be ignored to suit the convenience of a p a r t y .
Adjective l a w e n s u r e s t h e effective e n f o r c e m e n t o f
s u b s t a n t i v e rights t h r o u g h the orderly and speedy
a d m i n i s t r a t i o n of j u s t i c e . R u l e s a r e not i n t e n d e d to
hamper litigants or complicate litigation. But they help
provide for a vital system of justice where suitors may be
73

RULE 1

REMEDIAL LAW COMPENDIUM

SEC. 6

heard in the correct form and manner, at t h e prescribed


time in a peaceful though adversarial confrontation before
a judge whose authority litigants acknowledge. Public
o r d e r a n d o u r s y s t e m of j u s t i c e a r e well s e r v e d by a
c o n s c i e n t i o u s o b s e r v a n c e of t h e r u l e s of p r o c e d u r e ,
p a r t i c u l a r l y b y g o v e r n m e n t officials a n d a g e n c i e s "
(Kowloon House/Willy Ng vs. CA, et al., G.R. No. 140024,
June 18, 2003, quoted in United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R.
No. 141117, Mar. 24, 2004).

74

CIVIL A C T I O N S
ORDINARY CIVIL ACTIONS
RULE 2
C A U S E OF ACTION
S e c t i o n 1. Ordinary civil actions, basis of.
Every ordinary civil action must be based on a
c a u s e o f a c t i o n , (n)
S e c . 2. Cause of action, defined. A c a u s e of
action is the act or omission by w h i c h a party
v i o l a t e s a r i g h t of a n o t h e r , (n)
NOTES
1. See Note 2 of t h e Preliminary Considerations and
Notes 2 a n d 5 u n d e r Sec. 47, Rule 39.
2. A cause of action is the delict or wrongful act or
omission committed by t h e defendant in violation of the
primary right of t h e plaintiff. A single act or omission
can be violative of various rights at the same time but
where there is only one delict or wrong, there is b u t a
single cause of action regardless of the n u m b e r of rights
violated belonging to one person. Nevertheless, if only
one injury resulted from several wrongful acts, only one
cause of action arises. The singleness of a cause of action
lies in the singleness of the delict or wrong violating the
rights of one person (Joseph vs. Bautista, et al., L-41423,
Feb. 23, 1989).
S e c . 3. One suit for a single cause of action. A
p a r t y m a y n o t i n s t i t u t e m o r e t h a n o n e s u i t for a
s i n g l e c a u s e o f a c t i o n . (3a)
76

RULE 2

REMEDIAL LAW COMPENDIUM

SEC. 4

S e c . 4. Splitting a single cause of action; effect of.


If two or more suits are instituted on t h e basis of
t h e same cause of action, t h e filing of one or a
judgment upon the merits in any one is available
a s a g r o u n d for t h e d i s m i s s a l o f t h e o t h e r s . (4a)
NOTES
1. Splitting a cause of action is t h e act of dividing a
single cause of action, claim or d e m a n d into two or more
p a r t s , a n d b r i n g i n g s u i t for o n e o f s u c h p a r t s only,
intending to reserve t h e r e s t for a n o t h e r s e p a r a t e action.
The p u r p o s e s of t h e rule a r e to avoid h a r a s s m e n t a n d
vexation to t h e defendant a n d to obviate multiplicity of
suits.
'. 2. W h e r e a single c a u s e of action h a s been split,
the remedy of t h e defendant is to move to dismiss u n d e r
Rule 1 6 o n t h e g r o u n d t h a t t h e r e i s a n o t h e r a c t i o n
p e n d i n g between t h e s a m e p a r t i e s for t h e s a m e cause,
or litis pendentia (Sec. lfej); or, if t h e first action h a s
a l r e a d y been finally t e r m i n a t e d , on t h e g r o u n d of res
judicata
(Sec. IffJ).
3. T h u s , w h e r e t h e first,action was for recovery of
land, a n o t h e r action for the value of plaintiff s s h a r e in
the produce of said land is barred, as a single cause of
action was split into two suits (Jalandoni, et al. vs. MartirGuanzon, et al., 102 Phil. 859; cf. Pascua vs. Sideco, 24
Phil. 26). The s a m e doctrine applies w h e r e , in the action
to recover t h e land, t h e plaintiff sought to recover t h e
fruits a l r e a d y a p p r o p r i a t e d b y t h e d e f e n d a n t b u t not
the future fruits which may be realized thereon until the
possession of the land, was restored to him.
He could
have done so by s u p p l e m e n t a l complaint in said action,
failing which he cannot i n s t i t u t e a n o t h e r action for t h a t
purpose in violation of t h e rule of res judicata (Bayang
vs. CA, et al., G.R. No. 53564, Feb. 27, 1987).

76

RULE 2

CAUSE OF ACTION

SEC. 4

4. Where a contract is to be performed periodically,


as by i n s t a l l m e n t s , each failure to pay an i n s t a l l m e n t
constitutes a cause of action a n d can be t h e subject of a
s e p a r a t e suit as t h e i n s t a l l m e n t falls due, or it can be
included in the p e n d i n g s u i t by s u p p l e m e n t a l pleading.
However, if at the time of the bringing of suit, several
installments are already due, all must be included as
integrating a single cause of action, otherwise those not
included will be barred (Larena vs. Villanueva, 53 Phil.
923).
5. W i t h a l , e v e n if t h e c o n t r a c t is divisible in its
performance a n d t h e future periodic deliveries a r e not
yet due, b u t t h e obligor h a s already manifested his refusal
to comply w i t h his future periodic obligations, "the contract is entire and the breach total," hence t h e r e can only
be one action for damages (Blossom & Co. vs. Manila Gas
Corporation, 55 Phil. 226).
6. N o n - p a y m e n t of a mortgage loan cannot be split
into two actions, one for p a y m e n t of t h e debt a n d t h e
other for foreclosure of t h e m o r t g a g e , as t h e r e is only
one cause of action (Quiogue, et al. vs. Bautista, et al.,
L-13159, Feb. 28, 1962); b u t an action for collection of a
mortgage loan does not b a r a n o t h e r for rescission of the
mortgage if such rescission is based on the non-compliance
by t h e m o r t g a g o r w i t h c e r t a i n o t h e r conditions of t h e
m o r t g a g e c o n t r a c t (Enriquez, et al. vs. Ramos, et al.,
L-16797, Feb. 27, 1963).
7. Where the plaintiff filed the first action for forcible
entry in t h e belief and on t h e allegation t h a t the fence
c o n s t r u c t e d by t h e d e f e n d a n t i n t r u d e d upon only one
lot, but, after t h e relocation survey, he discovered t h a t
the other portion of t h e same fence extended to a n o t h e r
lot and as a consequence of which he filed a n o t h e r action
for forcible entry upon t h a t l a t t e r lot, the S u p r e m e Court,
while holding that technically t h e r e was a splitting of a

77

RULE 2

REMEDIAL LAW COMPENDIUM

SEC. 5

single cause of action since t h e alleged forcible e n t r y


c o n s t i t u t e d only one act, n e v e r t h e l e s s s u s t a i n e d t h e
order of t h e lower court denying defendant's motion to
dismiss t h e complaint on t h e ground of litis pendentia, it
a p p e a r i n g t h a t t h e first action had not yet been tried at
the time the second action was filed in t h e same court,
hence t h e two cases could be tried together as one, or the
second complaint could be t r e a t e d as an a m e n d m e n t of
t h e first (Tarnate us. Garcia, et al., L-26266, Dec. 29,
1972).
S e c . 5. Joinder of causes
in one pleading assert,
otherwise, as many causes
against an opposing party,
conditions:

of action. A p a r t y m a y
in the alternative or
of action as he may have
subject to the following

(a) T h e p a r t y j o i n i n g t h e c a u s e s o f a c t i o n s h a l l
comply with the rules on joinder of parties;
(b) T h e j o i n d e r s h a l l n o t i n c l u d e s p e c i a l c i v i l
actions governed by special rules;
(c) W h e r e t h e c a u s e s o f a c t i o n a r e b e t w e e n t h e
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
a c t i o n falls w i t h i n t h e j u r i s d i c t i o n o f s a i d c o u r t
a n d t h e v e n u e lies t h e r e i n ; a n d - 1
(d) W h e r e t h e c l a i m s i n a l l t h e c a u s e s o f
a c t i o n a r e p r i n c i p a l l y for r e c o v e r y o f m o n e y t h e
aggregate^amount claimed shall be the test of
j u r i s d i c t i o n . (5a)
NOTES
1. The joinder of causes of action in one complaint
p r o m o t e s t h e policy on avoiding m u l t i p l i c i t y of s u i t s .
The rule in Sec. 5, however, is purely permissive a n d the

78

RULE 2

CAUSE OF ACTION

SEC. 5

plaintiff can always file s e p a r a t e actions for each cause


of action (Baldovir vs. Sarte, 36 Phil. 550).
2. P a r . (a) of t h i s section requires t h a t t h e joinder
of causes of action shall comply with t h e rule on joinder
of p a r t i e s . T h u s , in r e l a t i o n to Sec. 6 of Rule 3, it is
n e c e s s a r y t h a t t h e r i g h t of relief from said c a u s e s of
action should arise out of t h e same t r a n s a c t i o n or series
of t r a n s a c t i o n s , and a question of law and fact common
to all t h e plaintiffs or defendants may arise in the action.
3. U n d e r P a r . (b), only causes of action in ordinary
civil actions may be joined, obviously because they a r e
subject to t h e s a m e rules. Necessarily, therefore, special
civil actions or actions governed by special rules should
not be joined w i t h o r d i n a r y civil actions to avoid confusion in t h e conduct of t h e proceedings as well as in the
d e t e r m i n a t i o n of t h e presence of t h e requisite elements
of each p a r t i c u l a r cause of action. In fact, in the special
civil action of declaratory relief (Rule 63), the concept of
a cause of action in ordinary civil actions does not apply.
Note should be t a k e n , however, of Sec. 4 of Rule 1
which provides t h a t t h e s e Rules shall not apply, inter
alia, to election cases in t h e r e g u l a r courts (see Sec. 2[2],
Art. IXC, 1987 Constitution). T h u s , unless the rules of
t h e e l e c t o r a l t r i b u n a l o r body provide o t h e r w i s e , t h e
prohibition a g a i n s t joining in one action t h e r e i n a cause
of action for quo w a r r a n t o by reason of the ineligibility
of t h e d e f e n d a n t c a n d i d a t e ( w h i c h is a s p e c i a l civil
action) a n d one for an election protest due to electoral
irregularities, should not apply and both causes of action
may be adjudicated in a single case, especially in view of
the need for speedy d e t e r m i n a t i o n of the title to a public
office.
4. P a r s , (c) and (d) determine which court will have
jurisdiction over t h e action w h e r e i n s e v e r a l causes of
action have been joined. Unlike t h e former Rule, t h e
79

RULE 2

REMEDIAL LAW COMPENDIUM

SEC. 5

aggregate or totality rule applies only where t h e claims


are principally for s u m s of money, and not w h e r e they
are also of the same n a t u r e and character; and said claims
for money m u s t a r i s e out of t h e s a m e t r a n s a c t i o n or
series of t r a n s a c t i o n s wherein a question of law or fact
common to the p a r t i e s may arise in the action. Also, the
condition in the former Rule t h a t permissive joinder of
causes of action shall be "(s)ubject to t h e rules regarding
jurisdiction (and) venue" has been modified and clarified
in the p r e s e n t formulation of par. (c).
5 . I n a c o m p l a i n t filed i n t h e S e c u r i t i e s a n d
Exchange Commission by a stockholder of a corporation,
one of t h e causes of action t h e r e i n sought t h e a n n u l m e n t
of a dacion en pago a g r e e m e n t , whereby said corporation
ceded all its a s s e t s to the mortgagee b a n k in s e t t l e m e n t
of its account, and to recover said property from t h e thirdparty purchaser to whom the mortgagee bank had
subsequently sold t h e property and who was impleaded
as a co-defendant. It was held t h a t such cause of action
could not be joined in said complaint since jurisdiction
thereover lies in t h e r e g u l a r courts. While, ordinarily,
the p u r c h a s e r corporation should be included as a p a r t y
defendant since it h a s an i n t e r e s t in t h e subject m a t t e r ,
in this case said p u r c h a s e r has no intra-corporate
relationship with t h e complainant, hence, t h e Commission
has no jurisdiction over it u n d e r P.D. 902-A. The rule on
permissive joinder of causes of action is subject to t h e
rules r e g a r d i n g jurisdiction, venue and joinder of p a r t i e s
(Union Glass & Container Corp., et al. vs. SEC, et al.,
G.R. No. 64013, Nov. 28, 1983), as clarified in this revised
Rule.
6. This section presupposes t h a t t h e different causes
of action which a r e joined accrue in favor of t h e s a m e
plaintiff/s and against t h e same defendant/s and t h a t no
misjoinder of p a r t i e s is involved. The jurisdictional issue,
i.e., w h e t h e r t h e action shall be filed in t h e inferior court
80

RULE 2

CAUSE OF ACTION

SEC. 5

or in the Regional Trial Court, is determined by p a r a g r a p h s


(c) and (d).
7. Formerly, t h e rule was t h a t although t h e causes
of a c t i o n a r e for s u m s of m o n e y o w i n g to d i f f e r e n t
persons who a r e m e m b e r s of a labor union, but t h e same
are joined in a single complaint filed by said union as
a r e p r e s e n t a t i v e p a r t y p u r s u a n t to Sec. 3 of Rule 3,
jurisdiction shall be d e t e r m i n e d by t h e aggregate a m o u n t
of the d e m a n d s (Liberty Mfg. Workers Union vs. CFI of
Bulacan, et al., L-35252, Nov. 29, 1972).
Cases of t h i s
n a t u r e a r e now governed by t h e Labor Code.
8. Before t h e i m p l e m e n t a t i o n of B.P. Big. 129, it
was held t h a t w h e r e t h e plaintiff is u n c e r t a i n as a g a i n s t
whom to proceed for recovery on t h e loss of goods shipped
to him a n d sues on a joinder of causes of action a g a i n s t
the shipper or a r r a s t r e operator as alternative defendants,
the former on an a d m i r a l t y action and t h e l a t t e r on an
ordinary claim for a s u m of money, t h e joinder of causes
o f a c t i o n i s p r o p e r s i n c e t h e y a r o s e from t h e s a m e
transaction.
However, since one cause of action
(admiralty) was within t h e jurisdiction of the Court of First
Instance, even if t h e a m o u n t involved in t h e claim for a
sum of money was within t h e jurisdiction of the inferior
court, t h e action m u s t be filed and tried in t h e Court of
F i r s t I n s t a n c e , p u r s u a n t t o R u l e 2 , S e c . 5, s e c o n d
paragraph
(Insurance Company of North America vs.
Warner, Barnes & Co., Ltd., et al., L-24108, Oct. 31, 1967;
Insurance Company of North America vs. U.S. Lines Co.,
L-21839, April 30, 1968). The s u b s e q u e n t dismissal of
the a d m i r a l t y case a g a i n s t one of t h e a l t e r n a t i v e
defendants did not oust said court of jurisdiction over the
d a m a g e s u i t even if t h e claim w a s less t h a n t h e t h e n
jurisdictional amount
(Insurance Company of North
America vs. U.S. Lines Co., supra).
However, since u n d e r Sec. 19 of B.P. Big. 129 t h e
inferior courts were g r a n t e d jurisdiction over admiralty
81

RULE 2

REMEDIAL LAW COMPENDIUM

SEC. 6

actions, as well as ordinary civil actions, where t h e claim


does not exceed P20,000, the situations in t h e foregoing
cases were eliminated because the jurisdictional
a m o u n t in both c a u s e s of action being t h e s a m e , said
a m o u n t is determinative of w h e t h e r t h a t action should be
filed in t h e inferior courts or in the Regional Trial Court.
The a m e n d m e n t of Sec. 19, B.P. Big. 129 by Sec. 1
of R.A. 7691, as e a r l i e r indicated, does not affect t h i s
rule on admiralty and maritime cases since t h a t
a m e n d m e n t merely consisted of increasing the
jurisdictional a m o u n t for said cases, and also for ordinary
civil actions for a s u m of money, to claims exceeding
PIOO.OOO, or in M e t r o M a n i l a , e x c e e d i n g P 2 0 0 . 0 0 0 ,
exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses, and costs.
S e c . 6. Misjoinder of causes of action. M i s j o i n d e r
o f c a u s e s o f a c t i o n i s n o t a g r o u n d for d i s m i s s a l o f
an action. A misjoined cause of action may, on
motion of a party or on the initiative of the court,
b e s e v e r e d a n d p r o c e e d e d w i t h s e p a r a t e l y , (n)
NOTES
1. In case of misjoinder of causes of action, t h e cause
of action erroneously joined need only be s e p a r a t e d a n d
dismissed, w i t h o u t affecting t h e action w i t h r e g a r d to t h e
other cause or c a u s e s o action. Misjoinder of causes of
action, like misjoinder of p a r t i e s , is not a g r o u n d for
dismissal of an action. The p a r t y misjoined shall only be
dropped by order of t h e court sua sponte or on motion,
and any claim against a p a r t y may be severed and
proceeded with s e p a r a t e l y (Sec. 11, Rule 3).
2. Unlike t h e case of non-joinder of p a r t i e s which
is specifically provided for a n d r e g u l a t e d by t h e Rules
(Sees. 9 to 11, Rule 3), t h e r e is no provision on or sanction
against non-joinder of s e p a r a t e causes of action since a
82

RULE 2

PARTIES TO CIVIL ACTIONS

SEC. 6

plaintiff n e e d s only a single cause of action to m a i n t a i n


an action (Sec. 1, Rule 2). J o i n d e r of causes of action
which accrued in favor of a p a r t y is only a permissive
procedure, hence the p a r t y may institute as many
actions as he h a s causes of action, w i t h o u t prejudice to
t h e p r o v i s i o n s of S e c . 1 of R u l e 31 on j o i n t t r i a l or
consolidation of actions.

83

RULE 3
P A R T I E S TO CIVIL A C T I O N S
S e c t i o n 1.
Who may be parties; plaintiff and defendant. O n l y n a t u r a l o r j u r i d i c a l p e r s o n s , o r
e n t i t i e s a u t h o r i z e d b y law m a y b e p a r t i e s i n a c i v i l
action. The term "plaintiff may refer to the
claiming party, the counter-claimant, the crossc l a i m a n t , o r t h e t h i r d ( f o u r t h , e t c . ) - p a r t y plaintiff.
The term "defendant" may refer to the original
d e f e n d i n g party, the defendant in a counterclaim,
the cross-defendant, or the third (fourth, etc.)p a r t y d e f e n d a n t , (a)
NOTES
1. As to who a r e juridical persons w i t h capacity to
sue, see Art. 44, Civil Code. The entities authorized by
law to be parties to a suit include the estate of a deceased
person (Limjoco vs. Intestate Estate of Fragante, 8 Phil.
776; Estate of Mota vs. Concepcion, 56 Phil.
712),
a p o l i t i c a l p a r t y i n c o r p o r a t e d u n d e r Act 1459 (now,
B.P. Big. 68, Corporation Code) and a r e g i s t e r e d labor
u n i o n , u n d e r S e c . 2 4 ( d ) , R.A. 8 7 5 ( n o w , Sec. 243,
P.D. 442, Labor Code), with respect to its property. The
Roman Catholic Church h a s a juridical p e r s o n a l i t y
(Barlin vs. Ramirez, 7 Phil. 47).
2. Although t h e action was b r o u g h t a g a i n s t t h e
"Broadway T h e a t r e " which is not a juridical person, b u t
the lessee thereof filed an a n s w e r a n d l a t e r e n t e r e d into
a compromise a g r e e m e n t a d m i t t i n g liability and p u r s u a n t
to which j u d g m e n t was rendered, t h e procedural defect
w a s c u r e d . The w r i t of execution c a n n o t be enforced
a g a i n s t t h e t h e a t r e b u t a g a i n s t t h e l e s s e e (Oscar
Ventanilla Enterprises Corp. vs. Lazaro, G.R. No. 53856,
Aug. 21, 1980).

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 2

3. Sec. 1 of t h i s Rule provides t h a t only n a t u r a l or


juridical persons may be p a r t i e s in a civil action and, in
this case, t h e e d u c a t i o n a l i n s t i t u t i o n failed to comply
with its obligation to incorporate u n d e r t h e Corporation
Law after its recognition by t h e Government. However,
having contracted with its t e a c h e r for 32 years u n d e r t h e
r e p r e s e n t a t i o n t h a t it was possessed of juridical personality to do so, it is now e s t o p p e d from d e n y i n g s u c h
p e r s o n a l i t y to defeat h e r claim a g a i n s t it (Chiang Kai
Shek School us. CA, et al., G.R. No. 58028, April 18, 1989).
4. U n d e r Sec. 15 of t h i s Rule, an entity, which is not
registered as a juridical person and, therefore, without
the requisite personality required of p a r t i e s to a suit, may
at least be sued as a defendant in t h e first instance so
t h a t t h e m e m b e r s t h e r e o f s h a l l be disclosed by being
required to be individually n a m e d in t h e a n s w e r . This
exception is dictated by t h e need to identify its m e m b e r s
since it is from t h e m t h a t t h e plaintiff may seek relief on
his claim.
5. N o n - r e s i d e n t aliens living abroad may m a i n t a i n
personal actions a g a i n s t Philippine residents in Philippine
courts, e v e n if a c o u n t e r c l a i m is b r o u g h t a g a i n s t said
plaintiffs (Dilweg us. Philip, L-19596, Oct. 30, 1964).
S e c . 2. Parties in interest. A**e*L p a r t y in
interest i * t k e party w h o stands to be benefited or
injured by-the j u d g m e n t in the suit, or the party
entitled t o t h e avails of t h e suit. Unless o t h e r w i s e
a u t h o r i z e d by law or t h e s e Rules, every action m u s t
be prosecuted or defended in the name of the real
p a r t y i n i n t e r e s t . (2a)
NOTES
1. A real p a r t y in i n t e r e s t is the p a r t y who s t a n d s to
be benefited or injured by t h e j u d g m e n t in t h e suit, or
the p a r t y entitled to t h e avails of the suit (Salonga vs.
c

-ire*

<

(85

* '

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 3

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


"party" includes a surety who, although not initially a
party to the case, is sought to be h e l d liable on i t s
performance bond, hence, as such party, it can a p p e a l
from the order rendered thereon (PHHC vs. Jeremias,
et al., L-43252, Sept. 30, 1976).
2. If the suit is not brought in t h e name of or against
t h e real p a r t y in interest, a motion to dismiss may-be
filed on t h e ground t h a t the complaint s t a t e s no cause of
action (Sec. IfgJ, Rule 16).
3. Where t h e action was brought by t h e attorneyin-fact of the landowner in his own n a m e , and not in t h e
name of his principal, the action was properly dismissed
(Ferrer vs. Villamor, L-33293, Sept. 30, 1974; Marcelo vs.
De Leon, 105 Phil. 1175).
S e c . 3. Representatives as parties. W h e r e t h e
a c t i o n is a l l o w e d to be p r o s e c u t e d or d e f e n d e d by a
representative or s o m e o n e a c t i n g in a fiduciary
capacity, the beneficiary shall be included in the
title of the case and shall be d e e m e d to be the real
p a r t y in i n t e r e s t . A r e p r e s e n t a t i v e m a y be a t r u s t e e
of an express trust, a guardian, an e x e c u t o r or
a d m i n i s t r a t o r , or a p a r t y a u t h o r i z e d by l a w or t h e s e
R u l e s . A n a g e n t a c t i n g i n h i s o w n n a m e a n d for
the benefit of an undisclosed principal may sue or
be sued without joining the principal except w h e n
the contract involves things belonging to the
p r i n c i p a l . (3a)
NOTES
1. The impleading of t h e beneficiary as a p a r t y in
t h e suit is now a m a n d a t o r y r e q u i r e m e n t , a n d not a discretionary procedure as it was in t h e former section of
this Rule. This a m e n d e d section e n u m e r a t e s t h e s a m e
exceptions to t h e rule t h a t t h e action shall be brought in
86

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 3

the n a m e of t h e r e a l p a r t y in i n t e r e s t . The p h r a s e "party


authorized by law or t h e s e Rules," includes the
r e p r e s e n t a t i v e of t h e o w n e r in e j e c t m e n t p r o c e e d i n g s
(Sec. 1, Rule 70), a receiver (Sec. 6, Rule 59) a n d t h e
a s s i g n e e of a d e b t o r in i n s o l v e n c y p r o c e e d i n g s . T h e
judgment creditor may sue t h e debtor of a j u d g m e n t debtor
if t h e former denies t h e i n d e b t e d n e s s (Sec. 43, Rule 39).
Other instances u n d e r t h e s u b s t a n t i v e law a r e found in
Arts. 487, 1311, 1497, 1664, 2103 and 2118 of t h e Civil
Code.
2. A labor union, as t h e duly recognized b a r g a i n i n g
unit of its m e m b e r s , can file a r e p r e s e n t a t i v e suit in t h e i r
behalf u n d e r t h i s section which a u t h o r i z e s a p a r t y with
whom or in whose n a m e a c o n t r a c t h a s been m a d e for
the benefit of a n o t h e r , to sue or be sued without joining
the p a r t y for whose benefit t h e action is p r e s e n t e d or
defended (Liberty Mfg. Workers Union vs. CFI of Bulacan,
et al., supra; cf. National Brewery, etc. Labor Union of
the Phil. vs. San Miguel Brewery, Inc., L-19017, Dec. 7,
1963). This r e p r e s e n t a t i v e capacity of labor unions is
recognized u n d e r t h e Labor Code (Sec. 243) but, generally,
labor cases a r e not originally cognizable by t h e r e g u l a r
courts.
3. A*corporation c a n n o t m a i n t a i n an a c t i o n to
recover property belonging to its stockholders as it has
no interest therein, it having a separate personality and
the properties not having been transferred to it (Sulo
ng Bayan, Inc. vs. Gregorio Araneta, Inc., et al., L-31061,
Aug. 17, 1976).
4. U n d e r t h e p r e s e n t Rules, p a r t i e s in i n t e r e s t may
be classified a n d defined as follows:
a. Indispensable parties:
Those without whom no
final d e t e r m i n a t i o n can be had of an action (Sec. 7).
b. Necessary parties: Those who a r e not indispensable but ought to be parties if complete relief is to be
87

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 3

accorded as to those already parties, or for a complete


determination or settlement of t h e claim subject of t h e
action (Sec. 8).
c. Representative parties:
3 of t h i s Rule.

Those referred to in Sec.

d. Pro forma parties: Those who are required to be


joined as co-parties in suits by or against a n o t h e r p a r t y
as may be provided by t h e applicable s u b s t a n t i v e law
or procedural rule (Sec. 4).
e. Quasi parties: Those in whose behalf a class or
r e p r e s e n t a t i v e suit is brought (Sec. 17).
5. The 1940 Rules of Court provided for t h e t e r m
" n e c e s s a r y p a r t i e s " b u t t h i s w a s c h a n g e d t o "proper"
p a r t i e s in t h e 1964 Rules of Court.
The p r e s e n t Rules
r e v e r t e d t o t h e o r i g i n a l n o m e n c l a t u r e a s b e i n g more
terminologically accurate.
In American law on the classification of p a r t i e s , from
which we derived and patterned our concepts with
a p p r o p r i a t e modifications, formal or proper p a r t i e s a r e
those who have no i n t e r e s t in t h e controversy between
the immediate litigants b u t have an i n t e r e s t in t h e subj e c t - m a t t e r which m a y b e c o n v e n i e n t l y s e t t l e d i n t h e
suit, a n d thereby p r e v e n t f u r t h e r litigation; they may be
made p a r t i e s or not, at t h e option of t h e c o m p l a i n a n t .
Necessary p a r t i e s a r e those p a r t i e s who have such an
i n t e r e s t in t h e s u b j e c t - m a t t e r of a s u i t in e q u i t y , or
whose rights a r e so involved in the controversy, t h a t no
complete and effective decree can be made, disposing of
t h e m a t t e r in issue and dispensing complete justice, unless they a r e before t h e court in such a m a n n e r as to
entitle t h e m to be h e a r d in vindication or protection of
their interests
(see Black's Law Dictionary, 4th ed.,
pp. 1275-1276; citations omitted).
The classification t h e r e i n also s p e a k s of n o m i n a l
p a r t i e s as those who a r e joined as plaintiffs or defendants,
88

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 4

not because they have any r e a l i n t e r e s t in t h e subject


m a t t e r o r b e c a u s e a n y relief i s d e m a n d e d a s a g a i n s t
them, but merely because t h e technical rules of pleadings
require t h e i r presence on t h e record. This would roughly
c o r r e s p o n d to o u r c o n c e p t of a n d r u l e on pro forma
p a r t i e s w h e r e i n t h e joinder of spouses is required, or in
c e r t i o r a r i a c t i o n s w h e r e i n t h e c o u r t o r agency whose
adjudication is c h a l l e n g e d is i m p l e a d e d as t h e public
respondent, with the prevailing party as the private
respondent.
6. In t h e p r e s e n t definition of a necessary p a r t y , t h e
a d d i t i o n of t h e a l t e r n a t i v e c l a u s e "or for a c o m p l e t e
d e t e r m i n a t i o n or s e t t l e m e n t of t h e claim subject of the
action" is i n t e n d e d to m a k e t h e definition of necessary
p a r t i e s more comprehensive a n d complete. T h u s , if the
plaintiff creditor s u e s only one of t h e two joint debtors,
the j u d g m e n t t h e r e i n would accord complete relief as
between him a n d said defendant. However, t h e co-debtor
who was not impleaded is definitely a necessary p a r t y
since a j u d g m e n t in t h a t action with respect to his own
joint liability is necessary for a complete s e t t l e m e n t of
the debt in favor of t h e plaintiff. Without such alternative clause, the u n i m p l e a d e d debtor would not be
considered as a necessary p a r t y and t h e procedure and
sanctions in Sec. 9 of t h i s Rule could not be applied to
him.
7. P a r t i e s who were not initially and formally
impleaded as original p a r t i e s to t h e case, but l a t e r bound
themselves to comply w i t h t h e t e r m s of a j u d g m e n t on
compromise r e n d e r e d t h e r e i n may also be considered as
quasi p a r t i e s in said case (Rodriguez, et al. vs. Alikpala,
L-38314, June 25, 1974).
S e c . 4. Spouses as parties. H u s b a n d a n d w i f e
shall s u e o* b e s u e d jointly, e x c e p t as provided by
law. (4a)
89

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 5

NOTE
1. The provision hereon in t h e 1964 Rules of Court
was merely a reproduction of Art. 113 of t h e Civil Code.
This is an i l l u s t r a t i o n of joinder of pro forma p a r t i e s
required by the Rules. The propriety of suits by or against
the spouses should now t a k e into account t h e p e r t i n e n t
provisions of t h e Family Code.
S e c . 5. Minors or incompetent persons. A m i n o r
or a person alleged to be incompetent, m a y sue or
be sued with the assistance of his father, mother,
g u a r d i a n , or if he h a s n o n e , a g u a r d i a n ad litem.
(5a)
r
NOTES
-

r -

1. U n d e r t h e 1964 Rules, a distinction w a s made


between unemancipated and emancipated minors. An
u n e m a n c i p a t e d minor could sue or to be sued "through"
h i s p a r e n t o r g u a r d i a n , t h a t is, t h e a c t i o n h a d t o b e
brought in the name of or against such p a r e n t or
guardian with the designation that he was bringing
the action or being sued in t h a t capacity. In t h e case of
e m a n c i p a t e d minors, they could sue or be sued "with t h e
assistance" of t h e p a r e n t or g u a r d i a n . The action was in
the n a m e of or a g a i n s t t h e minor, w i t h an indication t h a t
he was being assisted t h e r e i n by his p a r e n t or g u a r d i a n .
Note t h a t 18 y e a r s is now t h e age of majority (R.A. 6809)
and for contracting m a r r i a g e (Art. 5, Family Code).
2. Also, u n d e r t h e former Rules, it w a s necessary
t h a t to sue or be sued in t h e cases provided by law, t h e
incompetent m u s t have been judicially declared as such,
and he could t h u s sue or be sued only t h r o u g h his p a r e n t
or g u a r d i a n . U n d e r t h e p r e s e n t revision, t h e suit can be
brought by or a g a i n s t him personally b u t w i t h t h e assistance of his p a r e n t s or his g u a r d i a n . It is sufficient t h a t
90

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 6

his i n c o m p e t e n c y be alleged in t h e c o r r e s p o n d i n g
pleadings a n d t h e t r i a l court may p a s s upon t h e t r u t h a n d
effects thereof.
S e c . 6. Permissive joinder of parties.All p e r s o n s
in whom or against w h o m any right to relief in
respect to or arising out of the same transaction
or series of transactions is alleged to exist whether
jointly, severally, or in the alternative, may, except as
otherwise provided in t h e s e Rules, join as plaintiffs
or be joined as defendants in one complaint, where
any q u e s t i o n of law or fact c o m m o n to all s u c h
p l a i n t i f f s o r t o all s u c h d e f e n d a n t s m a y a r i s e i n t h e
action; but the court may make such orders as may
be j u s t to p r e v e n t any plaintiff or d e f e n d a n t from
b e i n g e m b a r r a s s e d or put to expense in connection
with any proceedings in which he may have no
i n t e r e s t . (6)
NOTES
1. In t h e case of indispensable p a r t i e s and necessary
parties, t h e i r joinder in t h e action is compulsory (Sees. 7
and 8). This section e n u n c i a t e s t h e rule on permissive
joinder of p a r t i e s , t h a t is, t h e y can e i t h e r he joined in
one single complaint or may themselves m a i n t a i n or be
sued in s e p a r a t e s u i t s . T h i s rule is also applicable to
counterclaims (Go, et al. vs. Go, et al., 95 Phil. 378).
2. Permissive joinder of p a r t i e s requires t h a t :
a. The r i g h t to relief arises out of t h e same t r a n s action or series of t r a n s a c t i o n s ;
b. T h e r e is a question of law or fact common to all
the plaintiffs or defendants; and
c. Such joinder is not otherwise proscribed by the
provisions of t h e Rules on jurisdiction and venue.

91

RULE 3

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SEC. 7

"Series of transactions" means separate dealings with


the parties but all of which dealings are directly connected
with the same type of subject-matter of the suit. The
third r e q u i r e m e n t is contemplated by the proviso "except
as otherwise provided in these Rules" stated in this section.
Formerly, it was held t h a t several employees, hired
u n d e r s e p a r a t e contracts, could join in a suit for m i n i m u m
wages and non-payment thereof against t h e i r employer,
their contracts being a "series of t r a n s a c t i o n s " and t h e r e
is a common question of fact and law applicable to all of
t h e m (Abrasaldo, et al. vs. Cia. Maritima, 104 Phil. 1051
fUnrep.J). The same rule applied where several employees
were jointly dismissed and not paid by t h e i r employer
(International Colleges, Inc. vs. Argonza, 90 Phil.
470).
The foregoing situations are now governed by t h e Labor
Code, but t h e doctrines in said cases a r e still applicable to
ordinary claims not involving labor cases or employere m p l o y e e r e l a t i o n s h i p s a s long a s t h e r e q u i s i t e s for
permissive joinder of p a r t i e s are p r e s e n t .
3. Where a complaint contained two causes of action,
each for a s u m of money less t h a n P20,000 (which was
t h e n t h e m a x i m u m o f t h e j u r i s d i c t i o n a l a m o u n t for
cases cognizable by t h e municipal t r i a l courts) owed by
t h e plaintiff to a different d e f e n d a n t a n d a r i s i n g from
different a n d independent transactions, a l t h o u g h t h e
total of both claims exceeded P20,000, t h e Regional Trial
C o u r t h a d n o j u r i s d i c t i o n t h e n since t h e t o t a l i t y r u l e
involving different p a r t i e s , in Sec. 33(1) of B.P. Big. 129
and Sec. 11 of the I n t e r i m Rules, is subject to t h e
r e q u i r e m e n t s in t h i s section, one of which is t h a t t h e
right to relief arises out of t h e s a m e t r a n s a c t i o n or series
of t r a n s a c t i o n s (Flores vs. Mallare-Philipps, et al.,
G.R. No. 66620, Sept. 24, 1986).
y

S e c . 7. Compulsory joinder of indispensable parties.


Parties in interest w i t h o u t w h o m no final

92

RULE 3

PARTIES TO CIVIL ACTIONS

SECS. 7-8

determination can be had of an action shall be joined


e i t h e r a s p l a i n t i f f s o r d e f e n d a n t s . (7)
S e c . 8. Necessary party. A n e c e s s a r y p a r t y is
one w h o is not indispensable but who ought to be
joined as a party if c o m p l e t e relief is to be accorded
as to t h o s e a l r e a d y p a r t i e s , or for a c o m p l e t e
determination or settlement of the claim subject of
the action. (8a)
NOTES
1. In t h e case of indispensable p a r t i e s , t h e action
c a n n o t p r o c e e d u n l e s s t h e y a r e j o i n e d (Borlasa vs.
Polistico, 47 Phil. 345; Cortez vs. Avila, 101 Phil. 705),
w h e r e a s t h e action can proceed even in t h e absence of
some necessary p a r t i e s . If an indispensable p a r t y is not
impleaded, any j u d g m e n t would have no effectiveness;
w h e r e a s , e v e n if a n e c e s s a r y p a r t y is not included in
the suit, t h e case may be finally d e t e r m i n e d in court, but
the j u d g m e n t t h e r e i n will not resolve the whole
controversy.
2. Indispensable parties are those with such an
i n t e r e s t in t h e c o n t r o v e r s y t h a t a final decree would
necessarily affect t h e i r r i g h t s , so t h a t t h e court cannot
proceed w i t h o u t t h e i r presence. Necessary p a r t i e s a r e
those whose presence is necessary to adjudicate the whole
controversy b u t whose i n t e r e s t s are so far separable t h a t
a final decree c a n be m a d e in t h e i r a b s e n c e w i t h o u t
affecting them
(Wyoga Gas & Oil Corp. vs. Schrack,
1 Fed. Rules Service, 292, cited in 1 Moran 191, 1979 Ed.).
3. Where, in an action to a n n u l the sale of land made
by the defendant b a n k to its co-defendant spouses, the
action w a s d i s m i s s e d w i t h r e s p e c t t o s a i d d e f e n d a n t
spouses, t h e case m u s t also be dismissed as against the
defendant bank. The defendant spouses are indispensable

93

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 9

parties, hence having been discharged by t h e t r i a l court,


said court is no longer in a position to g r a n t t h e relief
sought by the plaintiff (Pillado us. Francisco, 105 Phil.
1254 fUnrep.J). On the other hand, where t h e action was
dismissed against t h e defendants who, before t h e filing
of said action, had sold t h e i r interests in t h e land subject
of the suit to their co-defendant, the said dismissal
against t h e former, who are only necessary p a r t i e s to t h e
suit, will not b a r the action from proceeding a g a i n s t t h e
latter as the remaining defendant. Said remaining
d e f e n d a n t h a v i n g been vested w i t h absolute title over
t h e subject property, t h e t r i a l court is in a position to
g r a n t t h e relief sought if proved by t h e plaintiffs (Seno,
et al. us. Mangubat, et al., L-44339, Dec. 2, 1987).
S e c . 9. Non-joinder of necessary parties to be pleaded.
W h e n e v e r in a n y p l e a d i n g in w h i c h a c l a i m is
asserted a necessary party is not joined, the pleader
shall set forth his name, if known, a n d shall state
w h y h e i s o m i t t e d . S h o u l d t h e c o u r t find t h e r e a s o n
for t h e o m i s s i o n u n m e r i t o r i o u s , i t m a y o r d e r t h e
inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
T h e f a i l u r e t o c o m p l y w i t h t h e o r d e r for h i s
inclusion, without justifiable cause, shall be deemed
a waiver of the claim against such party.
The non-inclusion of a necessary p a r t y does not
p r e v e n t t h e c o u r t from p r o c e e d i n g in t h e action,
and the judgment rendered therein shall be without prejudice to the rights of such necessary party.
(8a, 9 a )
NOTES
1. T h i s r e v i s e d provision r e i t e r a t e s t h e need for
impleading all necessary p a r t i e s in order t h a t t h e claims
involved in t h e action m a y be completely d e t e r m i n e d
94

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 9

t h e r e i n a n d t h e r e b y avoid multiplicity of s u i t s . The noninclusion of t h e necessary p a r t y may be excused only on


meritorious grounds, a b s e n t which t h e court shall order
him to be impleaded if jurisdiction over his person can
be obtained, subject to t h e sanction in t h e second p a r a graph of t h i s section. If his inclusion cannot, however,
be effected for valid reasons, u n d e r t h e t h i r d p a r a g r a p h
of t h i s section t h e action may proceed b u t t h e j u d g m e n t
t h e r e i n shall not prejudice t h e r i g h t s of t h a t necessary
party. Logically considered, therefore, n e i t h e r shall his
rights be prejudiced if his non-inclusion in t h e action in
the first place w a s due to a valid cause.
2. U n d e r t h e circumstances contemplated in the first
paragraph, the court shall order the inclusion of the
necessary p a r t y , t h a t is, t h e plaintiff shall be ordered to
file a n a m e n d e d c o m p l a i n t i m p l e a d i n g t h e n e c e s s a r y
party t h e r e i n as a co-defendant. Where t h e plaintiff unjustifiedly fails or refuses to do so, t h e sanction in t h e
second p a r a g r a p h comes into play a n d t h e plaintiff shall
be deemed to have waived his claim a g a i n s t said p a r t y .
The s a m e rule applies to any pleading a s s e r t i n g a claim
against a necessary p a r t y .
3. It is t r u e t h a t u n d e r Sec. 3 of Rule 17, w h e r e the
plaintiff fails w i t h o u t justifiable cause to comply with an
o r d e r of t h e c o u r t , h i s c o m p l a i n t m a y be d i s m i s s e d .
However, such dismissal shall not be ordered w h e r e t h e
plaintiff fails to comply w i t h t h e order of t h e court for
the joinder of t h e necessary p a r t y u n d e r this Rule, in line
with Sec. 11 thereof which provides t h a t non-joinder of
parties should not be a ground for dismissal of an action.
Thus, t h e rule merely declaring the waiver of plaintiffs
claim a g a i n s t t h e necessary p a r t y whose non-inclusion
was unjustified, as provided in t h e second p a r a g r a p h of
this section, is in effect an exception to t h e provision on
penalties imposed on a disobedient p a r t y u n d e r Sec. 3
of Rule 17 which would have entailed t h e dismissal of the
complaint itself.
95

RULE 3

REMEDIAL LAW COMPENDIUM

SECS. 10-11

S e c . 10. Unwilling co-plaintiff. If t h e c o n s e n t


of any party w h o should be joined as plaintiff can
not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint.
(10)
S e c . 1 1 . Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of partiee is
g r o u n d for d i s m i s s a l o f a n a c t i o n . P a r t i e s m a y b e
dropped or added by order of the court on motion of
a n y p a r t y o r o n its o w n i n i t i a t i v e a t a n y s t a g e o f
the action and on such terms as are just. Any claim
against a misjoined party may be severed and
p r o c e e d e d w i t h s e p a r a t e l y . (11a)
NOTES
1. Objections to defects in t h e p a r t i e s impleaded
should be made at t h e earliest opportunity, t h e moment
such defects become a p p a r e n t , by a motion to s t r i k e t h e
n a m e s of t h e p a r t i e s impleaded. If t h e r e is misjoinder, a
s e p a r a t e action should be brought against the party
misjoined. Objection to misjoinder cannot be raised for
the first time on appeal (Garcia vs. Chua, [CA], 50 O.G.
No. 2, 653).
2. Non-joinder does not warrant dismissal b u t the
court should order the inclusion of the necessary p a r t y
(see Sanchez vs. CFI, 40 Phil. 155). But if t h e case is
erroneously dismissed on this ground without stating that
it is without prejudice, and plaintiff did not appeal, such
dismissal bars the filing of another action on the same
cause (Rivera vs. Luciano, L-20844, Aug. 14, 1965).
3. Although both misjoinder of p a r t i e s a n d causes
of action a r e not g r o u n d s for dismissal, they s t a n d on
different p r e m i s e s as t h e r e can be misjoinder of p a r t i e s
even if t h e r e is only one cause of action common to them,

96

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 12

and t h e r e can be misjoinder of causes of action even if


there is only one plaintiff.
4. In case of misjoinder of causes of action, the one
which h a s been misjoined need merely be severed and
proceeded with separately, as provided in Sec. 6, Rule 2.
Along t h e s a m e r a t i o n a l e , Sec. 2 of Rule 31 allows t h e
court, in furtherance of convenience or to avoid prejudice,
to o r d e r a s e v e r a n c e a n d s e p a r a t e t r i a l of any claim,
cross-claim, counterclaim, or t h i r d - p a r t y complaint, or of
any s e p a r a t e i s s u e or of a n y n u m b e r of claims, crossclaims, counterclaims, t h i r d - p a r t y complaints or issues.
5. See Note 2 u n d e r Sec. 2, Rule 17.
S e c . 12. Class suit. W h e n t h e s u b j e c t m a t t e r
of the controversy is one of common or general
interest to many persons so numerous that it is
i m p r a c t i c a b l e to join all as p a r t i e s , a n u m b e r of
them which the court finds to be sufficiently
n u m e r o u s a n d r e p r e s e n t a t i v e a s t o fully p r o t e c t t h e
i n t e r e s t s o f a l l c o n c e r n e d m a y s u e o r d e f e n d for
the benefit of all. Any p a r t y in i n t e r e s t shall h a v e
the right to intervene to protect his individual
i n t e r e s t . (12a)
NOTES
1. The requisites of a class suit (or r e p r e s e n t a t i v e
suit) are:
--a. The subject-matter of t h e controversy is one of
common or general i n t e r e s t to many persons;
--b. The p a r t i e s affected a r e so n u m e r o u s t h a t it is
impracticable to bring t h e m all before the court; and
y c. The p a r t i e s bringing the class suit are sufficiently
n u m e r o u s or r e p r e s e n t a t i v e of t h e class and can fully
protect t h e i n t e r e s t s of all concerned.
97

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SEC. 12

2. The complaint must specially s t a t e t h a t t h e same


is b e i n g b r o u g h t in b e h a l f of o t h e r s w i t h w h o m t h e
p a r t i e s s h a r e a common interest (Borlasa vs. Polistico,
47 Phil. 345; Claudio vs. Zandueta, 64 Phil. 819).
If
t h e r e is a conflict of i n t e r e s t between those sought to be
r e p r e s e n t e d a n d t h o s e who filed t h e action, t h e class
suit will not prosper (Ibahez vs. Roman Catholic Church,
12 Phil. 227). The p a r t y bringing t h e class suit m u s t
have t h e legal capacity to do so (Chinese Flour Importers
Association vs. Price Stabilization Board, 9 Phil. 461;
Anti-Chinese League vs. Felix, 77 Phil. 1012; Recreation
& Amusement Association vs. City of Manila, 100 Phil.
950). However, wrongs suffered by some stockholders do
not necessarily constitute the same wrongs to other
s t o c k h o l d e r s a s would c r e a t e t h a t c o m m o n o r g e n e r a l
i n t e r e s t in t h e s u b j e c t - m a t t e r (Mathay, et al. vs. Consolidated Bank & Trust Co., et al., L-23136, Aug. 26,
1974). See also Newsweek, Inc. vs. IAC, et al. (G.R. No.
63559, May 30, 1986) r e g a r d i n g a supposed class suit for
libel a g a i n s t s u g a r p l a n t e r s in Negros which w a s denied
since each plaintiff h a s a s e p a r a t e a n d distinct r e p u t a t i o n
in t h e community.
3. Formerly, when the courts had jurisdiction in labor
cases, it w a s held t h a t a class suit to recover wages due to
23 l a b o r e r s is not p r o p e r as t h e p a r t i e s s o u g h t to be
represented are not so numerous as to make it
impracticable to include t h e m individually in t h e compla int (Diaz vs. De la Rama, 73 Phil. 104). The principle
would apply t o o t h e r s i m i l a r s i t u a t i o n s n ot involving
labor relations.
4. One plaintiff w a s held qualified to bring a class
suit in behalf of t h e m e m b e r s of t h e Methodist Episcopal
religious association, it appearing t h a t he had been
chosen by said association to look after t h e i r i n t e r e s t s
(De la Cruz vs. Seminary of Manila, 18 Phil. 334).

98

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SEC. 12

5. The p a r t i e s who brought the class suit have


control over t h e case w i t h t h e right to compromise or even
discontinue t h e s a m e . B u t a class suit cannot be compromised or dismissed w i t h o u t t h e approval of t h e court
(Sec. 2, Rule 17). A m e m b e r of t h e class is bound by t h e
j u d g m e n t in t h e class suit, hence t h i s section gives him
t h e r i g h t to i n t e r v e n e if he d e s i r e s to p r o t e c t his own
individual i n t e r e s t s . In t h e i n t e r e s t of justice, t h e a b s e n t
members should be notified of t h e filing of t h e class suit
whenever practicable.
6. As amended, t h i s section now regulates not only
the right and r e q u i r e m e n t s for a group to sue b u t also
to defend in a class suit.
7. A t a x p a y e r ' s s u i t (see Gonzales vs. Hechanova,
L-21897, Oct. 22, 1963; Phil. Constitution Association,
Inc. vs. Gimenez, L-23326, Dec. 18, 1965) or a stockholder's
derivative s u i t a r e in t h e n a t u r e of a class suit, although
subject to the o t h e r requisites of the corresponding
governing law (cf. Financing Corp. of the Phil. vs. Teodoro,
93 Phil. 679), especially on t h e issue of locus standi.
8. C l a i m a n t s of different portions embraced in a big
t r a c t of land cannot be impleaded altogether in a class
suit by or a g a i n s t t h e m as each one of t h e m has a
p a r t i c u l a r i n t e r e s t i n h i s own p o r t i o n , s e p a r a t e a n d
different from t h e o t h e r s
(see Rallonza vs. Villanueva,
15 Phil. 531; Berses vs. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., supra).
However, if t h e r i g h t to relief a r o s e out of t h e s a m e
t r a n s a c t i o n or s e r i e s of t r a n s a c t i o n s a n d t h e r e is a
common question of law or fact, they may be joined in
one suit as plaintiffs or defendants in accordance with
Sec. 6 of this Rule on permissive joinder of p a r t i e s .
9. An action does not become a class suit merely
because it is designated as such in the pleadings.
Whether t h e suit is or is not a class suit depends upon
99

RULE 3

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the a t t e n d i n g facts, and the complaint or other pleading


initiating the class action should allege t h e existence of a
subject-matter of common interest, as well as t h e existence
of a class and t h e n u m b e r of persons in the alleged class,
in order t h a t the court may be able to d e t e r m i n e w h e t h e r
t h e m e m b e r s of t h e class are so n u m e r o u s as to m a k e it
impracticable to bring t h e m all before the court, to contrast
t h e n u m b e r a p p e a r i n g on the record with t h e n u m b e r in
t h e class, to ascertain w h e t h e r t h e c l a i m a n t s on record
a d e q u a t e l y r e p r e s e n t t h e class, a n d t o verify t h a t t h e
subject-matter is of general or common i n t e r e s t (Mathay,
et al. vs. Consolidated Bank & Trust Co., et al., supra; cf.
Ortigas & Co. vs. Ruiz, et al, L-33952, Mar. 9, 1987).
10. U n d e r t h e former Rule, w h e n a supposed class
suit was filed, it was t h e duty of t h e court to m a k e sure
t h a t t h e p a r t i e s a c t u a l l y before i t w e r e s u f f i c i e n t l y
n u m e r o u s a n d r e p r e s e n t a t i v e o f t h e class. U n d e r t h e
p r e s e n t formulation, such fact is one of t h e requisites for
i n s t i t u t i n g and m a i n t a i n i n g a class suit. The significance
of such change is t h a t the p a r t i e s bringing t h e suit have
the b u r d e n of proving t h e sufficiency of t h e r e p r e s e n t a t i v e
c h a r a c t e r which they claim. Corollarily, t h e defendant
can assail t h a t fact t h r o u g h a motion to dismiss on t h e
ground t h a t the plaintiffs have no capacity to sue
(Sec. lfdj, Rule 16), t h a t is, t h a t they do not have t h e
r e p r e s e n t a t i o n t h a t they claim (see Lunsod vs. Ortega,
46 Phil 664).
S e c . 13. Alternative defendants. W h e r e t h e
plaintiff is uncertain against w h o of several persons
h e i s e n t i t l e d t o relief, h e m a y j o i n a n y o r all o f t h e m
as defendants in the alternative, although a right
to relief against one may be inconsistent with a
r i g h t o f r e l i e f a g a i n s t t h e o t h e r . (13a)

100

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PARTIES TO CIVIL ACTIONS

SECS. 14-15

NOTE
1. T h u s , w h e r e t h e owner of t h e goods is not sure
w h e t h e r t h e s a m e w a s lost in t r a n s i t or while it was on
deposit in t h e w a r e h o u s e of t h e a r r a s t r e o p e r a t o r , he
may sue t h e s h i p p e r or t h e operator in t h e a l t e r n a t i v e ,
although t h e r i g h t a g a i n s t t h e former is on a d m i r a l t y
while t h a t a g a i n s t t h e o p e r a t o r i s o n c o n t r a c t (see
Insurance Company of North America vs. United States
Lines Co., L-21839, April 30, 1968).
S e c . 14.
Unknown identity or name of defendant.
Whenever t h e identity or n a m e of a defendant is
unknown, he may be sued as the unknown owner,
heir, devisee, or by s u c h o t h e r designation as t h e
case m a y r e q u i r e ; w h e n his identity o r t r u e n a m e
is discovered, the pleading must be amended
a c c o r d i n g l y . (14)
NOTES
1. A r e l a t e d provision in Rule 14 reads as follows:
"Sec. 14. Service upon defendant whose identity
or whereabouts are unknown. In a n y a c t i o n ,
w h e n e v e r t h e defendant is designated as an unknown
owner, or t h e like or whenever his w h e r e a b o u t s are
unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected
upon h i m by publication in a newspaper of general
circulation a n d in such places and for such time as
t h e court may order."
2. This presupposes t h a t t h e plaintiff really does not
know t h e identity and/or address of t h e defendant or is
not in a position to ascertain such identity or whereabouts.
Sec.
defendant.

15.
Entity without
W h e n t w o or
101

juridical personality as
more persons not

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 15

organized as an entity with juridical personality


enter into a transaction, they may be sued under
the name by which they are generally or commonly
known.
In the answer of such defendant, the names
and addresses of the persons composing said
e n t i t y m u s t all b e r e v e a l e d . (15a)
NOTES
1. Rule 14 p e r t i n e n t l y provides as follows:
"Sec. 8. Service upon entity without juridical
personality. When persons associated in an entity
without juridical personality are sued u n d e r t h e name
by which t h e y a r e g e n e r a l l y or commonly k n o w n ,
service may be effected upon all t h e d e f e n d a n t s by
serving upon any one of t h e m , or upon t h e p e r s o n in
charge of t h e office or place of business m a i n t a i n e d
in such n a m e . But such service shall not bind
individually any person whose connection w i t h the
e n t i t y has, upon due notice, been severed before t h e
action was brought."
2. With respect to j u d g m e n t s to be r e n d e r e d in this
situation, Sec. 6 of Rule 36 provides t h a t w h e n j u d g m e n t
is r e n d e r e d a g a i n s t two or more p e r s o n s associated in an
entity w i t h o u t juridical personality, t h e j u d g m e n t shall
set out t h e i r individual or proper n a m e s , if known.
3. The predecessor of t h i s section referred only to
suits against two or more persons associated in any
business a n d who t r a n s a c t such b u s i n e s s u n d e r a common n a m e . Accordingly, it w a s understood t h a t t h e suit
c o n t e m p l a t e d t h e r e i n could b e b r o u g h t only a g a i n s t
associations which do not have an i n d e p e n d e n t juridical
personality b u t a r e engaged in business, t h u s excluding
non-profit or c h a r i t a b l e associations. T h a t d i s t i n c t i o n
h a s been eliminated in t h i s revision since non-profit or
102

RULE 3

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SEC. 16

charitable associations can also commit and be liable for


actionable wrongs.
S e c . 16. Death of party; duty of counsel. W h e n ever a party to a p e n d i n g action dies, and the claim
is not thereby extinguished, it shall be the duty of
h i s c o u n s e l t o i n f o r m t h e c o u r t w i t h i n t h i r t y (30)
d a y s a f t e r s u c h d e a t h o f t h e fact thereof, a n d t o g i v e
the name and address of his legal representative or
representatives. Failure of counsel to comply with
t h i s d u t y s h a l l be a g r o u n d for d i s c i p l i n a r y a c t i o n .
The heirs of the deceased may be allowed to be
s u b s t i t u t e d for t h e d e c e a s e d , w i t h o u t r e q u i r i n g t h e
appointment of an executor or administrator and
the c o u r t m a y a p p o i n t a g u a r d i a n ad litem for t h e
minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be s u b s t i t u t e d w i t h i n a p e r i o d of t h i r t y (30) d a y s
from n o t i c e .
If no legal representative is named by the
c o u n s e l for t h e d e c e a s e d p a r t y , o r i f t h e o n e s o
n a m e d s h a l l fail to a p p e a r w i t h i n the specified
period, t h e court may order the opposing party,
within a specified time, to procure the appointment
o f a n e x e c u t o r o r a d m i n i s t r a t o r for t h e e s t a t e o f t h e
deceased, and the latter shall immediately appear
for a n d o n b e h a l f o f t h e d e c e a s e d . T h e c o u r t c h a r g e s
in procuring such appointment, if defrayed by the
o p p o s i n g p a r t y , m a y b e r e c o v e r e d a s c o s t s . (16a, 17a)
NOTES
1. This section is a consolidation of Sees. 16 and 17
of the former Rule, with t h e following a m e n d m e n t s :

103

RULE 3

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SEC. 16

a. The duties of t h e counsel, as specified u n d e r t h e


first p a r a g r a p h , are now limited to the m a t t e r of the death
of his client and not in case of the latter's incapacity or
incompetency. The reason for the change is t h a t the death
of t h e client will r e q u i r e his s u b s t i t u t i o n by his legal
r e p r e s e n t a t i v e to be ordered by t h e court w h e r e i n t h e
case is pending, or even t h e a p p o i n t m e n t of an executor
or a d m i n i s t r a t o r but, t h i s time, by a court of p r o b a t e
jurisdiction. In the case of incapacity or incompetency of
the p a r t y , this fact will merely entail t h e a p p o i n t m e n t of
a g u a r d i a n ad litem by t h e court t r y i n g t h e case upon
being informed t h e r e o f by counsel of t h e p a r t i e s , t h e
p a r t i e s themselves, or other reliable sources.
b. T h e failure of t h e counsel to comply w i t h his
duties u n d e r t h i s section is now a ground for disciplinary
action, as his inaction will result in u n d u e delay in t h e
proceedings or may prejudice t h e i n t e r e s t s of his client's
successors in interest.
c. In t h e absence of a legal r e p r e s e n t a t i v e of t h e
deceased p a r t y , t h e opposing p a r t y s h a l l b e r e q u i r e d ,
w i t h i n a specified time, to procure t h e a p p o i n t m e n t of
an executor or a d m i n i s t r a t o r for t h e e s t a t e of t h e deceased
in an a p p r o p r i a t e special proceeding. U n d e r t h e former
p r o c e d u r e , in s u c h a c o n t i n g e n c y t h e o p p o s i n g p a r t y
was authorized to directly procure t h e a p p o i n t m e n t of a
legal r e p r e s e n t a t i v e for t h e d e c e a s e d by h i m s e l f a n d
apparently without participation by the heirs of the
deceased and, consequently, with limited judicial intervention in t h e choice and a p p o i n t m e n t of such r e p r e s e n t a t i v e .
2. These provisions apply w h e r e t h e claim survives
a n d r e g a r d l e s s o f w h e t h e r e i t h e r t h e plaintiff o r t h e
d e f e n d a n t dies or w h e t h e r t h e case is in t h e t r i a l or
appellate courts. No summonses are required to be
served on t h e s u b s t i t u t e defendants. I n s t e a d , t h e order
of substitution shall be served upon the p a r t i e s substituted
in t h e action; otherwise, t h e court does not acquire juris104

RULE 3

PARTIES TO CIVIL ACTIONS

SEC. 16

diction over the s u b s t i t u t e p a r t y (Ferreria, et al. vs. Vda.


de Gonzales, et al., 104 Phil. 143). Proceedings conducted
by the t r i a l court after t h e d e a t h of t h e defendant, and
without such substitution, a r e null and void (Lawas vs.
CA, et al., L-45809, Dec. 12, 1986).
3. Upon l e a r n i n g of the d e a t h of a p a r t y , t h e t r i a l
court should not order the a m e n d m e n t of t h e complaint
but t h e appearance of the decedent's legal r e p r e s e n t a t i v e .
An o r d e r for the- a m e n d m e n t of the c o m p l a i n t before
s u b s t i t u t i o n of the deceased p a r t y is void (Casenas vs.
Rosales, L-18707, Feb. 28, 1967). Upon t h e d e a t h of t h e
party, t h e a t t o r n e y h a s no further a u t h o r i t y to appear,
save to inform t h e court of his client's d e a t h and to t a k e
steps t o s a f e g u a r d t h e d e c e d e n t ' s i n t e r e s t , u n l e s s his
services a r e f u r t h e r r e t a i n e d by t h e s u b s t i t u t e p a r t i e s
(Vda. de Haberer vs. CA, et al., L-42709, May 26, 1981;
Lavina, et al. vs. CA, et al., G.R. Nos. 78295 and 79917,
April 10, 1989; Heirs of Maxima Regoso vs. CA, et al.,
G.R. No. 91879, July 6, 1992). The d e f e n d a n t ' s legal
heirs are his legal r e p r e s e n t a t i v e s if t h e r e is no pending
proceeding for t h e s e t t l e m e n t of his e s t a t e (Magdalera vs.
Benedicto, 103 Phil. 1102 [Unrep.J). The rule is t h a t in
the s u b s t i t u t i o n of t h e deceased, priority is given to his
legal r e p r e s e n t a t i v e , i.e., t h e executor or a d m i n i s t r a t o r of
his e s t a t e . The court may allow t h e substitution by the
heirs instead if t h e r e is unreasonable delay in the
a p p o i n t m e n t of an executor or a d m i n i s t r a t o r or when the
estate was extrajudicially settled (Lawas vs. CA, et al.,
supra).
4. The question as to w h e t h e r an action survives or
not depends on t h e n a t u r e of the action and the damage
sued for. In the causes of action which survive, t h e wrong
complained of affects p r i m a r i l y and principally property
and property rights, the injuries to the person being merely
incidental; w h i l e in the causes of action which do not
survive, the injury complained of is to the person, the
105

RULE 3

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SEC. 16

property and property rights affected being incidental.


Thus, for instance, the claim of t h e deceased plaintiff in
t h e p r e s e n t action to quiet title over t h e land in litigation
affects primarily and principally property and property
rights and, therefore, is one t h a t survives even after h e r
d e a t h (Bonilla, et al., etc. vs. Barcena, et al., L-41715,
June 18, 1976).
5. The actions t h a t survive a g a i n s t t h e decedent's
r e p r e s e n t a t i v e s a r e : (a) a c t i o n s t o r e c o v e r r e a l a n d
personal property against t h e e s t a t e ; (b) actions to enforce
liens thereon; and (c> actions to recover for an injury to
person or property by reason of tort or delict committed
by t h e deceased (Board of Liquidators, etc. vs. Heirs of
Maxima M. Kalaw, et al, L-18805, Aug. 14, 1967).
See
Rule 87 a n d notes t h e r e u n d e r . See also Sec. 20 of t h i s
Rule which h a s been a m e n d e d and provides a new
procedure for c o n t r a c t u a l money claims.
6. W h e r e d u r i n g t h e p e n d e n c y of actions filed by
t h e g u a r d i a n in behalf of his ward, t h e l a t t e r died and
t h e former w a s t h e r e a f t e r a p p o i n t e d a d m i n i s t r a t o r of
t h e e s t a t e of t h e decedent, he may be s u b s t i t u t e d as a
representative p a r t y in t h e pending actions (Ypil vs. Solas,
et al., L-49311, May 27, 1979).
7. It h a s been held t h a t w h e n a p a r t y dies a n d t h e
action s u r v i v e s his d e a t h , b u t no o r d e r of s u b s t i t u t i o n
was issued or effected by t h e court, t h e t r i a l held by said
court was null a n d void since it did not acquire jurisdiction over t h e legal r e p r e s e n t a t i v e or heirs of t h e decedent,
hence t h e j u d g m e n t was not binding on t h e m (Ferreria,
et al. vs. Vda. de Gonzales, et al., supra). In a l a t e r case,
however, it w a s also held t h a t w h e r e counsel failed to
comply w i t h his d u t y u n d e r t h e n Sec. 16 to inform the
court of t h e d e a t h of his client, t h e defendant, a n d no
s u b s t i t u t i o n of such p a r t y w a s effected, t h e proceedings
a n d j u d g m e n t t h e r e i n a r e valid i f t h e a c t i o n (in t h i s
case, e j e c t m e n t ) s u r v i v e s t h e d e a t h of said p a r t y a n d
106

RULE 3

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SEC. 16

said decision is b i n d i n g upon his successor in i n t e r e s t


(Sec. 47lb]. Rule 39; Florendo, et al. vs. Coloma, et al
G.R. No. 60544, May 19, 1984).
In t h e Florendo case, however, t h e defendant died
while t h e case w a s p e n d i n g on a p p e a l in t h e C o u r t of
Appeals and, consequently, involved only a review of t h e
evidence p r e s e n t e d with t h e participation of t h e original
party litigants. Also, since t h e binding effect of a judgment in an ejectment case upon t h e successors in i n t e r e s t
of a d e c e a s e d l i t i g a n t a r e specifically provided for in
Rule 39, t h e p r o c e d u r a l l a p s e a p p e a r s t o h a v e b e e n
disregarded in t h e i n t e r e s t of s u b s t a n t i a l justice.
8. Where the plaintiff father brought an action
against a common c a r r i e r for t h e d e a t h of his son, b u t
because of his failing h e a l t h he assigned all his r i g h t s
t h e r e i n to a t h i r d p a r t y , t h e s u b s e q u e n t d e a t h of said
original plaintiff does not t e r m i n a t e the action. The rights
assigned a r e t r a n s f e r a b l e in c h a r a c t e r a n d this situation
is not covered by Sec. 17 (now included in Sec. 16, as
amended) of t h i s Rule since t h e plaintiff died after he
had already assigned his r i g h t s in t h e action. Where a
right is t r a n s f e r r e d before t h e institution of t h e action,
the suit should be b r o u g h t in t h e n a m e of the assignee;
where t h e t r a n s f e r is m a d e pendente lite, t h e assignee
should be s u b s t i t u t e d for t h e o r i g i n a l plaintiff. T h e
failure to effect such formal substitution, however, will
not p r e v e n t t h e court from r e n d e r i n g j u d g m e n t in favor
of the assignee. If j u d g m e n t w a s r e n d e r e d in favor of
t h e a s s i g n o r b e c a u s e t h e s u b s t i t u t i o n w a s not d u l y
effected, t h e a s s i g n o r s h a l l hold t h e p r o c e e d s of t h e
j u d g m e n t in t r u s t for t h e a s s i g n e e (Del Castillo vs.
Jaymalin, et al., L 28256, Mar. 11, 1982).
9. Sec. 16 of t h i s Rule requires t h a t prompt notice
of the d e a t h of t h e plaintiff should be made so t h a t substitution by a legal r e p r e s e n t a t i v e of the p a r t y may be
effected. Where t h e counsel of plaintiff filed such motion
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for substitution 5 days after a decision in t h e case had


been rendered by the court, although plaintiff had died
more t h a n a y e a r p r i o r t h e r e t o , said j u d g m e n t is not
binding. No valid s u b s t i t u t i o n having been m a d e , t h e
court never acquired jurisdiction over t h e legal r e p r e sentative for t h e purpose of making him a p a r t y in t h e
case. F u r t h e r m o r e , the motion for substitution filed by
counsel for t h e deceased is null a n d void as counsel's
a u t h o r i t y t o r e p r e s e n t t h e client h a d ceased w i t h t h e
latter's d e a t h (Chittick vs. CA, et al., L-25350, Oct. 4, 1988;
cf. Saligumba, et al. vs. Palanog, G.R. No. 143365,
Dec. 4, 2008).
S e c . 17. Death or separation of a party who is a
public officer. W h e n a p u b l i c o f f i c e r is a p a r t y in
an action in his official capacity and d u r i n g its
pendency dies, resigns, or otherwise ceases to hold
office, t h e a c t i o n m a y b e c o n t i n u e d a n d m a i n t a i n e d
b y o r a g a i n s t h i s s u c c e s s o r if, w i t h i n t h i r t y (30) d a y s
a f t e r t h e s u c c e s s o r t a k e s office o r s u c h t i m e a s m a y
be granted by the court, it is satisfactorily shown
to the court by any party that there is a substantial
n e e d for c o n t i n u i n g o r m a i n t a i n i n g i t a n d t h a t t h e
successor adopts or continues or threatens to adopt
or c o n t i n u e the action of his predecessor. Before a
substitution is made, the party or officer to be
affected, unless expressly a s s e n t i n g thereto, shall
be given reasonable notice of the application
therefor and accorded an opportunity to be heard.
(18a)
S e c . 18. Incompetency or incapacity. If a p a r t y
becomes incompetent or incapacitated, the court,
upon motion with notice, may allow the action to
be continued by or against the incompetent or
incapacitated person assisted by his legal guardian
or g u a r d i a n ad litem. (19a)
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SECS. 17-19

S e c . 19. Transfer of interest. In c a s e of a n y


transfer of interest, the action may be continued
by or against the original party, unless the court
upon motion directs the person to whom the interest
is transferred to be substituted in the action or
j o i n e d w i t h t h e o r i g i n a l p a r t y . (20)
NOTES
1. These sections provide for t h e other instances
wherein s u b s t i t u t i o n of p a r t i e s is proper, subject to the
conditions t h e r e i n and w h e n e v e r the court, upon motion
and notice, finds justifiable reason therefor.
2. The "officer of t h e Philippines" contemplated in
Sec. 17 does not include a judge who is sued in connection w i t h t h e exercise of his judicial functions as any
action i m p u g n i n g it is not a b a t e d by his cessation from
office (Republic vs. CFI of Lanao del Norte, L 33949,
Oct. 23, 1973, jointly deciding t h e r e i n L-33986 and
L-34188).
3. Sec. 17 h a s been a m e n d e d to make it clear t h a t
the action contemplated t h e r e i n is one brought against
the public officer in his official capacity. Also, this section
is no longer limited to actions involving "an officer of
the Philippines," as it was u n d e r the former Rule, since
t h e r e a r e p e r m i s s i b l e i n s t a n c e s for m a i n t a i n i n g civil
s u i t s a g a i n s t public officers of a foreign g o v e r n m e n t ,
subject to t h e n a t u r e of t h e action and considerations of
i n t e r n a t i o n a l law and a g r e e m e n t s .
F u r t h e r m o r e , it is
not required, as clarified u n d e r this revision, t h a t w h a t
the successor in office is continuing or t h r e a t e n s to adopt
and continue is an action of his predecessor "in enforcing
a law alleged to be in violation of the Constitution of the
Philippines." The challenged action of a public officer
need not necessarily involve a constitutional issue. It is
believed t h a t no such delimitation was intended under the
old Rule which authorized such substitution as long as
109

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it was satisfactorily shown to t h e court t h a t t h e r e was a


s u b s t a n t i a l need for continuing t h e action (see Moore's
Federal Practice, Vol. II, p. 243).
4. U n d e r Sec. 18, as amended, in case of supervening
incapacity or incompetency of a p a r t y , t h e action shall
continue to be prosecuted by or against him personally
a n d n o t t h r o u g h h i s r e p r e s e n t a t i v e s , i n line w i t h t h e
a m e n d m e n t s in Sees. 3 and 5 of this Rule, since he cont i n u e s to be t h e real p a r t y in i n t e r e s t although assisted
by t h e corresponding g u a r d i a n .
5. Sec. 19 of t h i s Rule does not provide t h a t t h e
s u b s t i t u t i o n of p a r t i e s contemplated t h e r e i n is m a n d a tory, it being p e r m i s s i b l e to c o n t i n u e t h e action by or
a g a i n s t t h e original p a r t y in case of t r a n s f e r of i n t e r e s t
pendente lite. As t h e original p a r t y is bound by t h e final
outcome of t h e case, his s u b s t i t u t i o n by t h e t r a n s f e r e e is
not necessary u n l e s s t h e s u b s t i t u t i o n by or t h e joinder of
t h e l a t t e r is r e q u i r e d by t h e court; otherwise, failure to
do so does n o t w a r r a n t t h e d i s m i s s a l of t h e c a s e . A
t r a n s f e r e e pendente lite is a p r o p e r , a n d n o t an
i n d i s p e n s a b l e , p a r t y in t h e case
(Heirs of Francisco
Guballa, Sr., et al. vs. CA, et al, G.R. No. 78223, Dec. 19,
1988). However, w h e r e t h e t r a n s f e r w a s effected before
the commencement of the suit, the transferee must
necessarily be t h e defendant or t h e plaintiff, b u t he m a y
file a t h i r d - p a r t y c o m p l a i n t a g a i n s t a n d i m p l e a d t h e
t r a n s f e r o r in t h e action w h e n e v e r t h e s a m e is necessary
and p r o p e r for a complete d e t e r m i n a t i o n of all t h e rights
of t h e p a r t i e s .
S e c . 2 0 . Action on contractual money claims.
W h e n t h e a c t i o n i s for r e c o v e r y o f m o n e y a r i s i n g
from c o n t r a c t , e x p r e s s or implied, a n d t h e
d e f e n d a n t dies before e n t r y o f final j u d g m e n t i n t h e
court in which the action was pending at the time
of such death, it shall not be dismissed but shall
110

RULE 3

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SEC. 20

i n s t e a d be a l l o w e d to c o n t i n u e u n t i l e n t r y of final
j u d g m e n t . A favorable j u d g m e n t obtained by the
plaintiff therein shall be enforced in the manner
e s p e c i a l l y p r o v i d e d i n t h e s e R u l e s for p r o s e c u t i n g
claims against the e s t a t e of a deceased person. (21a)
NOTES
1. This w a s t h e former Sec. 21 of t h e old Rule which
has been a m e n d e d to provide a new procedure specially
for t h e disposition of c o n t r a c t u a l money claims w h e r e
the defendant dies before t h e t e r m i n a t i o n of t h e action
thereon. Two i m p o r t a n t aspects thereof m u s t inceptively
be t a k e n note of: (1) t h e action m u s t p r i m a r i l y be for
recovery of m o n e y , d e b t or i n t e r e s t t h e r e o n , a n d not
w h e r e t h e subject m a t t e r is p r i m a r i l y for some o t h e r
relief a n d t h e collection of an a m o u n t of money sought
therein is merely incidental t h e r e t o , such as by way of
d a m a g e s ; a n d (2) t h e claim subject of t h e action arose
from a contract, express or implied, e n t e r e d into by t h e
decedent in h i s lifetime or t h e liability for which h a d
been a s s u m e d by or is i m p u t a b l e to him.
2. U n d e r t h e former procedure, t h e d a t e of t h e d e a t h
of t h e defendant, in relation to t h e stage of t h e action at
t h a t time, was d e t e r m i n a t i v e of t h e procedure t h a t should
be followed thereafter. If he died "before final j u d g m e n t
in t h e C o u r t of F i r s t I n s t a n c e , " t h e action should be
dismissed w i t h o u t prejudice to t h e plaintiff p r e s e n t i n g
his claim t h e r e i n as a money claim in t h e s e t t l e m e n t of
the e s t a t e of t h e deceased defendant in accordance with
and as required by Sec. 5, Rule 86. The reason given for
the adoption of such procedure was t h a t if t h e defendant
dies a n d despite such fact t h e case against him proceeds
t o j u d g m e n t , h i s e s t a t e will n o n e t h e l e s s h a v e t o b e
settled in a Regional Trial Court (then, t h e Court of First
I n s t a n c e ) wherein s u c h j u d g m e n t for money s h a l l be
presented as a claim. Consequently, unless t h e action is
111

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SEC. 20

dismissed upon his death, the subsequent proceedings may


result in a Regional Trial Court reviewing t h e decision of
a n o t h e r or even the same Regional Trial Court involving
t h e s a m e money claim.
On t h e o t h e r hand, if t h e defendant died while t h e
case was on a p p e a l from t h e j u d g m e n t of t h e Regional
Trial Court, t h e appeal will continue with t h e deceased
b e i n g s u b s t i t u t e d t h e r e i n b y h i s h e i r s o r o t h e r legal
r e p r e s e n t a t i v e . When the j u d g m e n t of the appellate court
t h e r e o n i s t h e r e a f t e r r e n d e r e d a n d s h a l l h a v e become
final and executory, t h a t j u d g m e n t shall be t h e basis of
t h e m o n e y c l a i m to be filed in t h e p r o b a t e c o u r t , as
likewise authorized by Sec. 5, Rule 86.
3. The p r e s e n t revised procedure is believed to be
s i m p l e r a n d more p r a c t i c a l since, after all, t h e c o u r t
w h e r e i n t h e c o n t r a c t u a l money claim w a s p e n d i n g a t
t h e t i m e of t h e decedent's d e a t h m u s t have been fully
a c q u a i n t e d with t h e facts and issues t h e r e i n , or may even
have been in t h e process of r e n d e r i n g j u d g m e n t t h e r e o n .
Accordingly, to require t h e dismissal of said case a n d t h e
t r a n s f e r thereof to t h e p r o b a t e court will cause an unnecessary a n d otherwise avoidable b u r d e n on said court
which will t h e n be obliged to try a n d adjudicate t h e case
as a claim a g a i n s t t h e e s t a t e of t h e deceased defendant,
with t h e possibility t h a t it may even e n t a i l a duplication
of efforts and proceedings in whole or in p a r t .
4. U n d e r t h e p r e s e n t procedure, if t h e defendant dies
before e n t r y of final j u d g m e n t in t h e court w h e r e it was
pending at t h a t time, t h e action shall not be dismissed but
shall be allowed to continue until e n t r y of final j u d g m e n t
t h e r e o n . Such e n t r y of final j u d g m e n t may t a k e place in
the Regional Trial Court itself, w h e r e no appeal was t a k e n
from its j u d g m e n t , or it may be t h e e n t r y of j u d g m e n t of
t h e appellate court. In e i t h e r case, t h e former objection
a g a i n s t t h e probate court having to review t h e j u d g m e n t
of a n o t h e r court, which may possibly be of t h e s a m e r a n k ,
112

RULE 3

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SEC. 20

is eliminated. Since t h e money claim t h a t shall thereafter


be filed in t h e p r o b a t e court is based upon a final a n d
executory j u d g m e n t of a court of competent jurisdiction,
the former does not have to, because it cannot, review
t h a t j u d g m e n t which, for t h a t m a t t e r , is even conclusive
upon t h e p a r t i e s t h e r e t o and t h e i r privies.
5. T h i s section p r o v i d e s t h a t t h e action s h a l l be
allowed to continue until e n t r y of final judgment, hence
it will be necessary to have a legal r e p r e s e n t a t i v e a p p e a r
and be s u b s t i t u t e d for t h e deceased defendant. For this
purpose, t h e provisions of Sec. 17 of this Rule shall also
apply since t h e s a m e governs regardless of which of the
p a r t i e s to t h e action dies or w h e t h e r t h e case is in the
trial or appellate court.
6. T h i s s e c t i o n s p e a k s of c o n t r a c t s , " e x p r e s s or
implied," which is t h e s a m e terminology used in Sec. 5,
Rule 86 w i t h r e g a r d to one of t h e bases for t h e money
claims to be filed t h e r e u n d e r , and, formerly, in Sec. 1(a),
Rule 57 on p r e l i m i n a r y a t t a c h m e n t with respect to the
bases of causes of action contemplated therein. In Leung
Ben vs. O'Brien, et al. (38 Phil. 182), it was held t h a t
the contracts, express or implied, referred to in Rule 57,
include all p u r e l y p e r s o n a l obligations which a r e not
based on a delict or a tort, t h a t is, a quasi-delict. Accordingly, o n t h e s a m e c o n c e p t u a l r a t i o n a l e , t h e " i m p l i e d "
contracts mentioned in this section and in Sec. 5, Rule 86
may properly include w h a t are referred to in civil law as
quasi-contracts, a n d t h i s is t h e t e r m now used in Sec. 1(a)
of Rule 57, as a m e n d e d .
7. Where t h e action is for the revival of a j u d g m e n t
for a s u m of money which h a s become s t a l e for nonexecution after t h e lapse of 5 years, and the defendant
dies during t h e pendency of said action, Sec. 20 of this
Rule is not involved since t h e action is merely to keep
alive t h e j u d g m e n t s o t h a t t h e s u m s a w a r d e d i n t h e
action for revival thereof may be p r e s e n t e d as claims
113

RULE 3

REMEDIAL LAW COMPENDIUM

SEC. 21

against t h e e s t a t e of t h e decedent (Romualdez, et al. va.


Tiglao, et al, G.R. No. 51151, July 24, 1981). In fact, to
be more accurate, t h e subject of t h e action is t h e d o r m a n t
j u d g m e n t s o u g h t to be revived, a n d not a claim for a
s u m of m o n e y of c o n t r a c t u a l o r i g i n , s i n c e t h e s a m e
may also be said even if t h e claim arises from a crime or a
tort.
S e c . 2 1 . Indigent party. A p a r t y m a y be
authorized to litigate his action, claim or defense
a s a n i n d i g e n t i f t h e c o u r t , u p o n a n e x parte
application and hearing, is satisfied that the party
is one w h o has no money or property sufficient and
a v a i l a b l e for f o o d , s h e l t e r a n d b a s i c n e c e s s i t i e s for
himself and his family.
Such authority shall include an exemption
from p a y m e n t of docket and other lawful fees, and
of transcripts of stenographic notes which the
court may order to be furnished him. The amount
of the docket and other lawful fees which the
indigent w a s e x e m p t e d from p a y i n g shall be a lien
on any judgment rendered in the case favorable to
the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of
such authority at any time before judgment is
rendered by the trial court. If the court should
d e t e r m i n e after h e a r i n g that the party d e c l a r e d as
an i n d i g e n t is in fact a p e r s o n w i t h sufficient
income or property, the proper docket and other
lawful fees shall be assessed and collected by
the clerk of court. If payment is not made within
the time fixed by the court, e x e c u t i o n shall issue
for t h e p a y m e n t t h e r e o f , w i t h o u t p r e j u d i c e t o s u c h
other s a n c t i o n s as the court may impose. (22a)

114

RULE 3

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SEC. 22

NOTES
1. The t e r m "indigent p a r t y " h a s been s u b s t i t u t e d
for w h a t used to be called a "pauper litigant." For purposes
of a suit in forma pauperis,-* pauper litigant is not really
a pauper but a person who is indigent although not a
public charge, i.e., t h a t he has no property or income
sufficient for his support aside from his labor, even if he
is self-supporting when able to work and in employment
(see Black's Law Dictionary, 4th Ed., pp. 913, 1284, citing
People vs. Schoharie County, 121 N.Y., 345, 24N.E. 830).
This s a m e concept w a s adopted for p u r p o s e s of criminal
cases in applying t h e provisions of R.A. 6033, R.A. 6034
and R.A. 6035.
2. T h e p r e s e n t c o n c e p t of an i n d i g e n t l i t i g a n t is
believed to be more realistic in light of t h e contemporary
s i t u a t i o n . T h e proof of p a u p e r i s m r e q u i r e d u n d e r t h e
former Rule consisted merely of affidavits or certificates
of t h e c o r r e s p o n d i n g t r e a s u r e r s t h a t t h e p a r t y had no
r e g i s t e r e d p r o p e r t y . I t w a s considered i n a c c u r a t e and
misleading since a p a r t y may be financially sound although
h e h a s n o t a c q u i r e d o r r e g i s t e r e d a n y p r o p e r t y for
reasons of his own, hence t h e p r e s e n t revision opted for
judicial i n t e r v e n t i o n w i t h s a n c t i o n s a s set out i n t h i s
section.
3. Section 2 1 , Rule 3 of t h e p r e s e n t Rules h a s not
been affected by t h e incorporation of Rule 141 on Legal
Fees a n d t h e two a m e n d m e n t s t h e r e t o , now constituting
Section 19 thereof. It is to be noted t h a t said Section 21 of
Rule 3 could have been repealed w h e n t h e p r e s e n t Rule
141 was adopted, or also a m e n d e d when t h e l a t t e r was
then a m e n d e d . The fact is t h a t t h e two provisions can be
harmonized a n d can s t a n d together.
T h u s , when an application to litigate as an indigent
litigant is filed and t h e court finds t h a t it complies with
Section 19 of Rule 141, t h e a u t h o r i t y to litigate as such is
115

RULE 3

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SEC. 22

automatically g r a n t e d . However, if both r e q u i r e m e n t s


t h e r e i n have not been complied with, a h e a r i n g shall be
conducted and t h e application resolved on t h e evidence
of t h e p a r t i e s . Also, t h e adverse p a r t y m a y l a t e r still
c o n t e s t t h e g r a n t before j u d g m e n t a n d proceed in
accordance with t h e p r e s e n t provisions of said Section 21
(Algura, et al. vs. City of Naga, et al., G.R. No. 150135,
Oct. 30, 2006).
S e c . 22. Notice to the Solicitor General. In a n y
action involving the validity of any treaty, law,
ordinance, executive order, presidential decree,
r u l e s o r r e g u l a t i o n s , t h e c o u r t , i n its d i s c r e t i o n , m a y
require the appearance of the Solicitor General who
may be heard in person or through a representative
d u l y d e s i g n a t e d b y h i m . (23a)

116

RULE 4
VENUE OF ACTIONS
S e c t i o n 1. Venue of real actions. A c t i o n s
affecting title to or possession of real property, or
interest therein, shall be commenced and tried in
the proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof, is situated.
Forcrbre^ntry and detainer actions shall be
c o m m e n c e d and tried in the municipal trial court
of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
(l[a],2[a]a)
S e c . 2. Venue of personal actions. A l l o t h e r
actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides,
or where the defendant or any of the principal
defendants resides, or in the case of a nonresident
defendant where he may be found, at the election
of t h e plaintiff. (2[b]a)
NOTES
1. Rule 4 formerly provided different rules of venue
in t h e so-called inferior c o u r t s a n d t h e Regional Trial
Courts, both in r e a l and personal actions, although the
lower courts have long a s s u m e d t h e s t a t u s of courts of
record. Such v a r i a n t rules of venue sometimes resulted
in conflicting views r e q u i r i n g clarification. F u r t h e r m o r e ,
Par. 9 of t h e I n t e r i m or T r a n s i t i o n a l Rules and Guidelines
provided, as early as 1981, t h a t "(t)he procedure to be
observed in metropolitan trial courts, municipal trial courts
and municipal circuit t r i a l courts, in all cases and
proceedings, w h e t h e r civil or criminal, shall be t h e same
117

RULE 4

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SECS 1-2

as t h a t to be observed in t h e regional t r i a l courts." The


p r e s e n t revised Rule has adopted uniform rules of venue
for all t r i a l c o u r t s , t h e v e n u e for r e a l a c t i o n s b e i n g
determined by the place where the real property is situated
and, for personal actions, by t h e residence of t h e p a r t i e s ,
with special provisions for nonresident defendants.
2. The v e n u e of t h e r e a l actions c o n t e m p l a t e d in
t h e first p a r a g r a p h of Sec. 1 of t h i s Rule shall be "in t h e
proper court which h a s jurisdiction over t h e a r e a w h e r e i n
the r e a l p r o p e r t y involved, or a portion thereof, is
situated." This is so because under the a m e n d m e n t s
i n t r o d u c e d by R.A. 7 6 9 1 to S e e s . 19 a n d 33 of B . P .
Big. 129, both t h e Regional Trial C o u r t s a n d t h e lower
courts now have jurisdiction over real actions, d e p e n d i n g
on the value of the property in controversy. This
p r e s u p p o s e s , h o w e v e r , t h a t s u c h r e a l a c t i o n involves
the title to or t h e possession of t h e r e a l p r o p e r t y or any
interest therein.
3. Where t h e subject-matter of t h e action involves
various parcels of land s i t u a t e d in different provinces,
t h e venue is d e t e r m i n e d by t h e singularity or p l u r a l i t y
of t h e t r a n s a c t i o n s involving said parcels of land. T h u s ,
w h e r e said parcels a r e t h e objects of one a n d t h e s a m e
t r a n s a c t i o n , t h e v e n u e w a s in t h e t h e n C o u r t of F i r s t
I n s t a n c e of any of t h e provinces w h e r e i n a parcel of land
is s i t u a t e d (El Hogar Filipino vs. Seua, 57 Phil. 873). If
t h e parcels of land a r e subject of s e p a r a t e a n d distinct
t r a n s a c t i o n s , t h e r e i s n o common v e n u e a n d s e p a r a t e
actions should be laid in t h e Court of F i r s t I n s t a n c e of
the province wherein each parcel of land is situated
(Mijares, et al. us. Piccio, etc., et al., 101 Phil. 142).
4. A c t i o n s for t h e a n n u l m e n t or r e s c i s s i o n of a
sale a n d t h e r e t u r n of realty (Muhoz us. Llamas, et al.,
87 Phil. 737; Gauieres vs. Sanchez, et al., 94 Phil. 760;
Punsalan vs. Vda. de Lacsamana, et al., G.R. No. 55729,
Mar. 28, 1983), to compel t h e vendor to accept p a y m e n t
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SECS.

1-2

of t h e p u r c h a s e p r i c e of t h e l a n d (Lizares vs. Caluag,


et al., L-17699, Mar. 30, 1962), or to compel t h e v e n d o r to
deliver t h e certificate of title to t h e land (Espineli, et al.
vs. Santiago, et al., 107 Phil. 830) a r e r e a l actions a n d
the location of t h e land d e t e r m i n e s t h e venue of t h e action.
But actions only to recover t h e p u r c h a s e price of t h e land
(Garcia vs. Velasco, 72 Phil. 248) or for recovery a g a i n s t
t h e A s s u r a n c e F u n d (Hodges vs. Treasurer of the Phil.,
50 Phil. 16) a r e p e r s o n a l actions.
5. An action for t h e a n n u l m e n t of t h e cancellation
of t h e a w a r d of a lot in favor of t h e plaintiff, which he
was p r e p a r e d to p a y for p u r s u a n t to said a w a r d , does
not involve t h e issue of possession or title to t h e property,
hence it is a p e r s o n a l action (Hernandez vs. DBP, et al.,
L-31095, June 15, 1976).
6. An a c t i o n for t h e r e v i e w of an a d m i n i s t r a t i v e
decision involving r e a l p r o p e r t y should he brought in t h e
Regional T r i a l Court of t h e place w h e r e t h e officer who
r e n d e r e d t h e decision holds office, a n d not w h e r e t h e
land is s i t u a t e d (Salud vs. Executive Secretary, L-25446,
May 22, 1969), such as w h e r e t h e m a t t e r in dispute is a
fishpond p e r m i t (Digon vs. Bayona, 98 Phil. 442; Sarabia
vs. Secretary, 104 Phil. 115) or t h e r i g h t to a t i m b e r
concession
(Suarez vs. Reyes, L-19828, Feb. 28, 1963),
the location of t h e p r o p e r t y being i m m a t e r i a l .
7. An action to compel the mortgagee to accept
p a y m e n t a n d for t h e c o n s e q u e n t cancellation of a real
e s t a t e m o r t g a g e is a p e r s o n a l action, if t h e m o r t g a g e e
has not foreclosed t h e mortgage and t h e mortgagor is in
possession of t h e p r e m i s e s , since n e i t h e r t h e plaintiff
mortgagor's title to nor possession of t h e property is in
q u e s t i o n (Hernandez vs. Rural Bank of Lucena, Inc.,
L-29791, Jan. 10, 1978; cf. Chua vs. Total Office Products,
etc. Inc., G.R. No. 152808, Sept. 30, 2005), otherwise, it
is a real action.

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8. An^ action by the landowner against t h e subdivision developer for the rescission and t e r m i n a t i o n of their
contract and the r e t u r n to the plaintiff of all documents
a n d titles, w i t h d a m a g e s by r e a s o n of t h e d e f e n d a n t ' s
contractual breach, is a real action as t h e relief sought
will necessarily e n t a i l t h e recovery by t h e plaintiff of
possession of t h e land or such unsold portions thereof,
hence t h e venue of the action is determined by t h e location
of t h e real p r o p e r t y (Tenorio vs. Paho, et al, L-48117,
Nov. 27, 1986).
9. An action filed by the h u s b a n d for damages, based
on t h e wife's a d u l t e r o u s acts, and for his s h a r e in t h e
fruits of t h e conjugal p a r t n e r s h i p , with a p r a y e r for prel i m i n a r y i n j u n c t i o n t o r e s t r a i n h e r from s e l l i n g r e a l
p r o p e r t y b e l o n g i n g to t h e conjugal p a r t n e r s h i p , is a
personal action as he does not thereby a s k to be declared
t h e owner thereof, nor for possession or p a r t i t i o n of the
same, b u t merely seeks to exercise his right as administ r a t o r of t h e conjugal p a r t n e r s h i p (De Guzman, et al. vs.
Genato, et al., L-42260, April 10, 1979).
10. The v e n u e in ejectment cases u n d e r Sec. 1 of this
Rule may be changed by a g r e e m e n t of the p a r t i e s
p u r s u a n t to Sec. 4 t h e r e o f (Villanueva vs. Mosqueda,
et al., G.R. No. 58287, Aug. 19, 1982), b u t it m u s t now be
made in w r i t i n g a n d before t h e filing of t h e action.
1 1 . The r u l e s of v e n u e for p e r s o n a l actions in t h e
inferior courts and in the Regional Trial Courts are
generally made to depend on t h e residence of t h e p a r t i e s .
The residence referred to is t h e place w h e r e t h e p a r t y
actually resides at t h e time t h e action is i n s t i t u t e d (De la
Rosa vs. De Borja, 53 Phil. 998), not his p e r m a n e n t home
or domicile (Koh vs. CA, et al, L-40428, Dec. 17, 1975; cf.
Arevalo vs. Quilatan, G.R. No. 57892, Sept. 21, 1982,
r e g a r d i n g service of s u m m o n s at defendant's residence).

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12. The residence of t h e person is his personal, a c t u a l


or physical h a b i t a t i o n or his a c t u a l residence or place of
abode (Fule, et al. vs. CA, et al., L-40502, Nov. 29, 1976),
w h e t h e r p e r m a n e n t or t e m p o r a r y as long as he resides
with continuity a n d consistency t h e r e i n (Dangwa Trans.
Co., Inc. vs. Sarmiento, et al., L-22795, Jan. 31, 1977;
Ang Kek Chen vs. Spouses Calasan, G.R. No. 161685,
July 24, 2007).
S e c . 3. Venue of actions against nonresidents. If
any of the defendants does not reside and is not
found i n t h e P h i l i p p i n e s , a n d t h e a c t i o n affects t h e
p e r s o n a l s t a t u s o f t h e plaintiff, o r a n y p r o p e r t y o f
said d e f e n d a n t located in t h e P h i l i p p i n e s , t h e action
may be commenced and tried in the court of the
place w h e r e the plaintiff resides, or where the
property or any portion thereof is situated or found.
(2[c]a)
NOTES
1. W h e r e a p e r s o n a l action is a g a i n s t a r e s i d e n t
defendant a n d a n o n r e s i d e n t defendant b u t who is in t h e
Philippines, both of whom a r e principal defendants, t h e
venue may be laid e i t h e r w h e r e t h e r e s i d e n t defendant
resides or where the nonresident defendant may be
found, as a u t h o r i z e d by Sec. 2 of this Rule, but with an
additional a l t e r n a t i v e v e n u e , i.e., t h e residence of any of
the principal plaintiffs, p u r s u a n t to Sees. 2 and 3.
It will be observed t h a t w h e n t h e r e is more t h a n one
defendant or plaintiff in t h e case, t h e residences of t h e
p r i n c i p a l p a r t i e s s h o u l d b e t h e b a s i s for d e t e r m i n i n g
the p r o p e r v e n u e . O t h e r w i s e , t h e purpose of t h e Rule
would be defeated w h e r e a n o m i n a l or formal p a r t y is
impleaded in t h e action since t h e l a t t e r would not have
the degree of i n t e r e s t in t h e subject of the action which
would w a r r a n t and entail the desirably active participation
expected of litigants in a case.
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2. Sec. 4 of t h e former Rule provided t h a t "(w)hen


improper, venue is not objected to in a motion it is deemed
waived." Correlatively, Sec. 5 of Rule 16 provided t h a t
"(a)ny of t h e grounds for dismissal provided for in t h i s
rule, except improper venue, may be pleaded as an
affirmative defense, and a preliminary h e a r i n g may be
had t h e r e o n as if a motion to dismiss had been filed."
The aforesaid Sec. 4 of t h e former Rule h a s been
deleted, and Sec. 5 of Rule 16 correspondingly modified,
in these revised Rules. There does not a p p e a r to be any
cogent r e a s o n t o single o u t i m p r o p e r v e n u e from t h e
various preliminary objections t h a t may be raised a g a i n s t
a complaint, and require t h a t it may be raised only in a
motion to d i s m i s s u n d e r p a i n of i t s b e i n g c o n s i d e r e d
waived for failure to do so. It is entirely possible t h a t
such objection was not immediately discernible b u t
became a p p a r e n t only at t h e time t h e defendant p r e p a r e d
his a n s w e r or t h a t , for any other reason, he w a s not t h e n
in a position to file a motion to dismiss.
U n d e r t h e s e revised Rules, therefore, t h e ground of
improper venue is placed on t h e s a m e footing as t h e other
grounds for a motion to dismiss e n u m e r a t e d in Sec. 1 of
Rule 16 a n d is entitled to t h e s a m e considerations in t h a t ,
if it is not raised in a motion to dismiss, it may likewise be
alleged as an affirmative defense in t h e a n s w e r for a
p r e l i m i n a r y h e a r i n g t h e r e o n . At all e v e n t s , it is likewise
subject to t h e s a m e sanction provided in Sec. 1, Rule 9
t h a t if it is not pleaded as an objection e i t h e r in a motion
to dismiss or in t h e answer, it is deemed waived.
3. W h e r e t h e plaintiff is a n o n r e s i d e n t of t h e
Philippines b u t is p e r m i t t e d to sue h e r e (as in t h e case
of a foreign corporation with t h e requisite license u n d e r
Sec. 123 of t h e Corporation Code), t h e n t h e v e n u e is t h e
place w h e r e t h e d e f e n d a n t r e s i d e s , or, in r e a l actions,
w h e r e t h e real p r o p e r t y or p a r t thereof is s i t u a t e d . This
is proper since t h e a l t e r n a t i v e venue g r a n t e d to plaintiffs
122

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SEC. 4

is not available to said c o r p o r a t i o n (see Time, Inc. vs.


Reyes, L-28882, May 31, 1971, involving a s u i t a g a i n s t
a foreign corporation).
4. Where, on the other hand, it is the defendant
who is a n o n r e s i d e n t a n d is not found in t h e Philippines,
civil actions a r e p r o p e r only w h e n t h e action affects t h e
personal s t a t u s of the plaintiff or property of the
defendant, in which case Sec. 2 d e t e r m i n e s t h e v e n u e .
See Sec. 15, Rule 14 r e g a r d i n g service of s u m m o n s in
these cases.
5. An e x c e p t i o n to t h e g e n e r a l r u l e s on v e n u e is
found in civil actions for d a m a g e s in case of libel, w h e t h e r
a criminal action therefor h a s been filed or not, as special
rules of v e n u e a r e provided in A r t . 360 of t h e Revised
Penal Code, as l a s t a m e n d e d by R.A. 4363. Said venue
provisions apply to both residents and nonresidents,
assuming t h a t jurisdiction over the l a t t e r has been
acquired (Time, Inc. vs. Reyes, et al., supra).
S e c . 4. When Rule not applicable.
shall not apply

This

Rule

(a) I n t h o s e c a s e s w h e r e a s p e c i f i c r u l e o r l a w
provides otherwise; or
(b) W h e r e t h e p a r t i e s h a v e v a l i d l y a g r e e d i n
writing before the filing of the action on the
exclusive v e n u e thereof. (3a, 5a)
NOTES
1. Sec. 4(b) e n u n c i a t e s a clarification of t h e rule
regarding stipulations of t h e p a r t i e s on venue. It requires
a valid w r i t t e n a g r e e m e n t executed by t h e p a r t i e s before
the filing of t h e action. Accordingly, t h e provision in t h e
former Sec. 3 of this Rule to t h e effect t h a t "(b)y w r i t t e n
a g r e e m e n t of the parties t h e venue of an action may be
changed or transferred from one province to a n o t h e r "
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has been eliminated.


To be binding, t h e p a r t i e s m u s t have agreed on t h e
exclusive n a t u r e of t h e venue of any prospective action
between t h e m . This adopts t h e doctrines laid down by
t h e S u p r e m e Court requiring t h a t , to avoid t h e general
rules on venue, the a g r e e m e n t of the p a r t i e s thereon m u s t
be restrictive a n d not permissive. Those decisions are set
out h e r e u n d e r by way of illustrations, aside from other
decisional rules on venue.
2. It is f u n d a m e n t a l in t h e law governing venue of
a c t i o n s t h a t t h e s i t u s i s fixed t o a t t a i n t h e g r e a t e s t
convenience possible to the litigants by t a k i n g into
consideration t h e m a x i m u m accessibility to t h e m of t h e
courts of justice (Koh vs. CA, et al, L-40428, Dec. 17,
1975). V e n u e i n p e r s o n a l a c t i o n s i s fixed for t h e
convenience of t h e plaintiff a n d his w i t n e s s e s a n d to
promote t h e ends of justice. Where t h e contract, subject
of t h e suit, w a s executed at t h e time w h e n both plaintiff
and d e f e n d a n t had t h e i r business a d d r e s s e s in t h e City of
Manila and contained a proviso t h a t all actions on said
contract "may be brought in and submitted to the
jurisdiction of t h e proper courts in t h e City of Manila,"
b u t at t h e time of suit t h e r e o n all t h e p a r t i e s h a d t h e i r
respective offices or residences within t h e jurisdiction of
t h e Province of Rizal, t h e action t h u s i n s t i t u t e d in t h e
Court of F i r s t I n s t a n c e of Rizal should not be dismissed
on the ground of improper venue as, under such
c i r c u m s t a n c e s , t h e ends of justice can not be served or
promoted by confining t h e situs of t h e action in Manila
(Nicolas vs. Reparations Commission, L-28649, May 21,
1975; see also Capati vs. Ocampo, L-22742, April 30,
1982).
3. The court may declare a g r e e m e n t s on venue as
c o n t r a r y to p u b l i c policy if s u c h s t i p u l a t i o n u n j u s t l y
denies a p a r t y a fair opportunity to file suit in t h e place
designated by the Rules. The court shall take into
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RULE 4

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SEC. 4

consideration t h e economic conditions of t h e p a r t i e s , t h e


practical need to avoid n u m e r o u s suits filed a g a i n s t t h e
defendant in v a r i o u s p a r t s of t h e country a n d t h e peculiar
circumstances of t h e case (Hoechst Philippines, Inc. vs.
Torres, et al, L-44351, May
18, 1978).
4 . In- c o n t r a c t s o f a d h e s i o n , t h e r u l e i s t h a t
ambiguities t h e r e i n a r e t o b e c o n s t r u e d a g a i n s t t h e p a r t y
who c a u s e d it. If t h e s t i p u l a t i o n s a r e not obscure a n d
leave no d o u b t on t h e i n t e n t i o n of t h e p a r t i e s , t h e literal
meaning of t h e stipulations m u s t be held controlling
(Lufthansa German Airlines, et al.
vs. CA, et al.,
G.R. No. 91544, May 8, 1992; RCBC vs. CA, et al.,
G.R. 133107, Mar. 25, 1999).
C o n t r a c t s of a d h e s i o n
are n o t p r o h i b i t e d , b u t t h e f a c t u a l c i r c u m s t a n c e s o f
each c a s e m u s t b e carefully s c r u t i n i z e d t o d e t e r m i n e
the respective claims of t h e p a r t i e s as to their efficacy
(see National Dev. Co. vs. Madrigal Wan Hai Lines Corp.,
G.R. No. 148332, Sept. 30, 2003).
T h u s , in c o n t r a c t s involving passage tickets, a
condition p r i n t e d a t t h e b a c k t h e r e o f t h a t all a c t i o n s
arising out of t h a t c o n t r a c t of c a r r i a g e can be filed only in
a p a r t i c u l a r province or city, to t h e exclusion of all others,
was declared void a n d unenforceable due to t h e s t a t e of
the shipping i n d u s t r y . The Court noted t h a t t h e acute
shortage of i n t e r - i s l a n d vessels could not provide enough
a c c o m m o d a t i o n s for p l a i n t i f f s to t r a v e l to t h e v e n u e
indicated, a s i d e from t h e fact t h a t t h e p a s s e n g e r s did
not h a v e t h e o p p o r t u n i t y t o e x a m i n e t h e fine p r i n t
providing for s u c h v e n u e (Sweet Lines, Inc. vs. Teves,
etc., et al., L-37750, May 19, 1978).
In a s u b s e q u e n t c a s e i n v o l v i n g 6 s u b s c r i p t i o n
c o n t r a c t s for c e l l u l a r t e l e p h o n e s e a c h c o v e r e d by a
mobiline service a g r e e m e n t , t h e subscriber challenged
the provisions in said agreements providing t h a t the
v e n u e for all s u i t s a r i s i n g t h e r e f r o m s h a l l be in t h e
proper court of M a k a t i , with t h e subscriber waiving any
125

RULE 4

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SEC. 4

other venue. The Supreme Court s u s t a i n e d t h e validity


of t h a t venue stipulation, considering t h a t t h e subscriber
h a s sufficient o p p o r t u n i t y to go over s u c h s t i p u l a t i o n
during each time he signed those a g r e e m e n t s , as well as
in the subsequent subscriptions he acquired while
r e m a i n i n g as a s u b s c r i b e r for s o m e t i m e (Pilipino
Telephone Corp. vs. Tecson, G.R. No. 156966, May 7,
2004; cf. DBP vs. National Merchandising Corp., L-22957
& L-23737, Aug. 31, 1971).
5. A stipulation as to t h e venue of a prospective action
does not preclude t h e filing of t h e suit in t h e residence of
t h e plaintiff or t h a t of t h e defendant u n d e r Sec. 2 of t h i s
Rule, in t h e absence of qualifying or restrictive words in
t h e a g r e e m e n t t h a t would indicate t h a t t h e venue can not
be any place o t h e r t h a n t h a t agreed upon by t h e p a r t i e s
(Polytrade Corp. vs. Blanco, L 27033, Oct. 31, 1969),
especially w h e r e t h e venue stipulation w a s imposed by
t h e plaintiff for its own benefit and convenience (Eastern
Assurance & Surety Corp. vs. Cui, et al., infra).
6. The former C o u r t of F i r s t I n s t a n c e of Quezon
City h a d jurisdiction w h e r e t h e d e f e n d a n t electric corporation h a s its principal office in Quezon City, a l t h o u g h
t h e a c t s c o m p l a i n e d of werer c o m m i t t e d by its electric
p l a n t i n D a g u p a n City, since c o r p o r a t e d e c i s i o n s a r e
made in Quezon City a n d t h e employees in D a g u p a n City
merely c a r r y out said o r d e r s , hence t h e acts s o u g h t to
be r e s t r a i n e d are being committed in Quezon City
(Dagupan Electric Corp.
vs. Paho, et al., L-49520,
Jan. 28, 1980; cf. Limjap vs. Animas, et al., G.R.
No. 53334, Jan. 17, 1985; Olongapo Electric Light &
Power Corp. vs. National Power Corp., et al., L-24912,
April 9, 1987).
7. In actions involving domestic c o r p o r a t i o n s ,
for p u r p o s e s o f v e n u e , w h a t i s c o n t r o l l i n g i s t h e
location of its p r i n c i p a l place of b u s i n e s s s t a t e d in its
articles of incorporation, not t h e b r a n c h office or place of
126

RULE 4

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SEC. 4

business thereof (Hyatt Elevators and Escalators Corp.


vs. Goldstar Elevators Phils., Inc., G.R. No. 161026
Oct. 24, 2005).
8. W h e r e t h e c h a t t e l mortgage h a d been fully paid,
but t h e m o r t g a g e e still s e n t a telegram d e m a n d i n g payment from t h e mortgagor, t h e venue for t h e l a t t e r ' s action
for d a m a g e s is not governed by t h e venue stipulation in
the c h a t t e l m o r t g a g e since t h e suit is not based on said
contract b u t on d e f e n d a n t ' s act of s e n d i n g the telegram
(Zoleta vs. Romillo, G.R. No. 58080, Feb. 15, 1982).
9. Since a t h i r d - p a r t y complaint is b u t ancillary to a
main action, t h e r u l e s on jurisdiction and venue do not
apply to it. T h u s , a t h i r d - p a r t y complaint yields to t h e
jurisdiction a n d v e n u e of t h e m a i n action even if said
t h i r d - p a r t y complaint is based on a s e p a r a t e a g r e e m e n t
which specifies a different venue for s u i t s arising from
said a g r e e m e n t (Eastern Assurance & Surety Corp. vs.
Cui, et al., G.R. No. 54452, July 20, 1981).
10. Where only one of t h e two defendants, both being
indispensable p a r t i e s , filed a motion to dismiss for improper v e n u e , while t h e o t h e r filed his a n s w e r without
raising s u c h objection, t h e h e a r i n g should not proceed
against t h e l a t t e r u n t i l t h e objection raised by the
former s h a l l have been resolved (Punzalan vs. Vda. de
Lacsamana, G.R. No. 55729, Mar. 28, 1983).
1 1 . The stipulation in a contract of affreightment to
the effect t h a t said a g r e e m e n t "shall be governed by and
c o n s t r u e d in a c c o r d a n c e w i t h S i n g a p o r e Law, a n d all
d i s p u t e s a r i s i n g ( t ) h e r e u n d e r s h a l l b e subject t o t h e
exclusive j u r i s d i c t i o n of t h e High Court of Singapore"
refers to t h e forum of t h e actions contemplated therein.
It may not be declared invalid on t h e theory t h a t such
a g r e e m e n t would divest Philippine courts of jurisdiction
by a g r e e m e n t of t h e p a r t i e s , since w h a t has been agreed
upon was merely t h e venue of the action which may legally
127

RULE 4

REMEDIAL LAW COMPENDIUM

SEC. 4

be done. However, since t h e defendant did not timely


raise t h a t issue b u t filed two motions to lift t h e writ of
preliminary a t t a c h m e n t and a counterbond therefor,
before it eventually filed a motion to dismiss on the ground
of improper venue, such objection h a s been waived and
the trial court erred in granting the motion and dismissing
t h e case (Phil. International Trading Corp. vs. M.V.
Zileena, et al, G.R. No. 102904, Oct. 30, 1992).
12. The foregoing considerations n o t w i t h s t a n d i n g ,
the S u p r e m e Court, to avoid a miscarriage of justice, h a s
the power to order a change of venue or place of t r i a l in
civil or criminal cases or o t h e r judicial proceeding (see
Sec. 5[4J, Art. VIII, 1987 Constitution; Magsaysay vs.
Magsaysay, et al, L-49847, July 17, 1980).
13. Because of t h e s u p e r v e n t i o n of R.A. No. 7691
(Appendix N) which, inter alia, a m e n d e d t h e jurisdiction
of t h e r e g u l a r t r i a l courts in real actions, p e n d i n g final
action on t h e p r e s e n t revised Rules, t h e S u p r e m e Court
approved in advance and p r o m u l g a t e d t h e p r e s e n t Rule 4
to t a k e effect on A u g u s t 1, 1995, i s s u i n g t h e r e f o r its
A d m i n i s t r a t i v e Circular No. 13-95 on J u n e 20, 1995.

128

RULE 5
U N I F O R M P R O C E D U R E I N TRIAL C O U R T S
S e c t i o n 1. Uniform procedure. T h e p r o c e d u r e
in the Municipal Trial Courts shall be the same as
i n t h e R e g i o n a l T r i a l C o u r t , e x c e p t (a) w h e r e a
particular provieion expressly or impliedly applies
o n l y t o e i t h e r o f s a i d c o u r t s , o r (b) i n c i v i l c a s e s
g o v e r n e d b y t h e R u l e o n S u m m a r y P r o c e d u r e , (n)
S e c . 2. Meaning of terms. T h e t e r m " M u n i c i p a l
Trial C o u r t s " a s u s e d i n t h e s e R u l e s s h a l l i n c l u d e
M e t r o p o l i t a n T r i a l C o u r t s , M u n i c i p a l Trial C o u r t s
in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts, ( l a )
NOTES
1. The former Rule 6 of t h e s e Rules was expressly
repealed by t h e I n t e r i m or T r a n s i t i o n a l Rules and Guidelines p r o m u l g a t e d by t h e S u p r e m e Court effective upon
the implementation of B.P. Big. 129. Par. 9 of said interim
rules further provided t h a t "(t)he procedure to be observed
in m e t r o p o l i t a n t r i a l courts, municipal t r i a l courts and
municipal circuit t r i a l courts, in all cases and proceedings,
w h e t h e r civil or criminal, shall be t h e same as t h a t to be
observed in t h e regional trial courts." This is now provided
in Sec. 1, with exceptions.
2. It h a s b e e n held t h a t i n t e r p l e a d e r (Rule 62) is
available in inferior courts although they are not bound
to follow strictly t h e procedure therefor as set out for t h e
t h e n C o u r t s of F i r s t I n s t a n c e (Makati Dev. Co. vs.
Tanjuatco, L-26443, Mar. 25, 1969). It is submitted t h a t
since t h e procedure in t h e p r e s e n t Regional Trial Courts
is now applicable to t h e inferior courts, while t h e l a t t e r

129

RULE 5

REMEDIAL LAW COMPENDIUM

SEC. 2

can t r y i n t e r p l e a d e r a c t i o n s , t h e y m u s t perforce now


observe t h e procedure as provided for t h e Regional Trial
Courts.
3. U n d e r Sec. 22 of B.P. Big. 129 and P a r . 21(a) of
t h e I n t e r i m Rules and Guidelines, all cases decided by
t h e inferior courts may be appealed to t h e Regional Trial
Courts. It h a s been held t h a t such provisions a r e broad
enough to cover j u d g m e n t s by default, s u m m a r y
judgments and judgments on the pleadings rendered
by inferior c o u r t s . T h e c o n t r a r y d o c t r i n e s in Luzon
Rubber & Manufacturing Co. vs. Estaris, et al. [L-31439,
Aug. 31, 1973] a n d r e i t e r a t e d in Stratchan, et al. vs. CA,
et al. [L-23455, J a n . 27, 1985] a r e t h e r e b y d e e m e d overruled (Guanson vs. Montesclaros, et al., G.R. No. 59330,
June 28, 1983). T h e c o n t r o v e r s y in t h e p a s t on t h i s
point (see Vda. de Hoyo-a, et al. vs. Virata, et al., G.R.
No. 71171, July 23, 1985), which h a s now b e e n s e t at
r e s t , w a s d u e t o t h e fact t h a t , formerly, only d e f a u l t
j u d g m e n t s of t h e Courts of F i r s t I n s t a n c e were appealable
u n d e r t h e t h e n Sec. 2 of Rule 4 1 .
4. W h e r e t h e lower court h a d no jurisdiction over
the case, the Regional Trial Court does not acquire
appellate jurisdiction. However, while the appellant
may assail such jurisdiction on appeal, t h e p a r t i e s may
s u b m i t to t h e original jurisdiction of t h e Regional Trial
Court a n d said court can proceed to try t h e case (Alvir
vs. Vera, L-39338, July 16, 1984).
For the present
p r o c e d u r a l rule, see Sec. 8, Rule 40.
5. Formerly, t h e decisions of t h e t h e n C o u r t s of F i r s t
I n s t a n c e , in cases appealed to t h e m from t h e decisions of
t h e inferior courts in t h e exercise of t h e l a t t e r ' s original
jurisdiction, were a p p e a l a b l e to t h e S u p r e m e C o u r t by
c e r t i o r a r i u n d e r Rule 45 if t h e only issue w a s w h e t h e r
t h e conclusion of t h e t h e n C o u r t of F i r s t I n s t a n c e w a s
i n c o n s o n a n c e w i t h law a n d j u r i s p r u d e n c e , h e n c e t h e
issue is consequently a p u r e l y legal q u e s t i o n . W h e r e ,
130

RULE 5

UNIFORM PROCEDURE IN TRIAL COURTS

SEC. 2

however, t h e issue w a s w h e t h e r t h e findings of fact of


said C o u r t o f F i r s t I n s t a n c e w e r e s u p p o r t e d b y s u b s t a n t i a l evidence, or such question w a s raised t o g e t h e r
with a purely legal issue, a petition for review should be
brought to t h e Court of Appeals in t h e form prescribed in
its Resolution of A u g u s t 12, 1971. It w a s opined t h e r e i n
t h a t a l t h o u g h Sec. 22 of B.P. Big. 129 a b a n d o n e d t h e
"substantial evidence" rule formerly provided u n d e r
R.A. 6031 in d e t e r m i n i n g w h e t h e r to give due course to
the petition, t h e question of w h e r e to file said petition,
as above s t a t e d , h a s not been affected by B.P. Big. 129
(Torres, et al. vs. Yu, et al, L-42626, Dec. 18, 1982; cf.
Mania vs. Vda. de Segarra, et al, L-48257, Aug. 24, 1984).
U n d e r t h e s e revised Rules, a p p e a l s from a decision
of t h e Regional T r i a l Court r e n d e r e d in t h e exercise of its
a p p e l l a t e j u r i s d i c t i o n s h a l l be b r o u g h t to t h e C o u r t of
Appeals r e g a r d l e s s of t h e issues involved. T h u s , Sec. 2
of Rule 42 r e q u i r e s t h a t in such a p p e a l t h e petition for
review to t h e C o u r t of Appeals m u s t set forth, inter alia,
"the specification of t h e e r r o r s of fact or law, or both,
allegedly committed by t h e Regional Trial Court."
6. W i t h respect to t h e system of amicably settling
disputes at t h e barangay level and which, in proper cases,
is a p r e r e q u i s i t e for t h e i n s t i t u t i o n of an action in court
u n d e r P.D. 1508, g e n e r a l l y referred to as t h e Katarungang Pambarangay d e c r e e , see n o t e s u n d e r Sec. 1,
Rule 123. Sec. 2 of said P.D. 1508 provided for t h e cases
within t h e jurisdiction of t h e lupon, while Sec. 3 thereof
d e t e r m i n e d t h e v e n u e o f t h e p r o c e e d i n g s , i.e., t h e
barangay w h e r e t h e p r o c e e d i n g s s h a l l be c o n d u c t e d
(Agbayani vs. Belen, et al, G.R. No. 65629, Nov. 24, 1986).
See, however, t h e corresponding provisions of the Local
G o v e r n m e n t C o d e of 1 9 9 1 (R.A. 7160) r e p r o d u c e d
thereunder.
7. Excepted from t h e uniform procedure as s t a t e d
in this Rule a r e t h e cases covered by t h e Rule on Sum131

RULE 5

REMEDIAL LAW COMPENDIUM

SEC. 2

m a r y Procedure promulgated by t h e S u p r e m e Court for


inferior courts effective August 1, 1983, a n d last revised
with effectivity on November 15, 1991, which w i t h respect
to civil cases provides as follows:
" P u r s u a n t to Section 36 of t h e J u d i c i a r y Reorganization Act of 1980 (B.P. Big. 129) and to achieve
an expeditious and inexpensive d e t e r m i n a t i o n of t h e
cases referred to herein, t h e Court Resolved to prom u l g a t e t h e following Revised Rule o n S u m m a r y
Procedure:
I.
Applicability
S E C T I O N 1. Scope. This rule shall govern t h e
s u m m a r y procedure in the Metropolitan Trial Courts,
t h e Municipal Trial Courts in Cities, t h e Municipal
Trial Courts, a n d t h e Municipal Circuit Trial C o u r t s
in t h e following cases falling w i t h i n t h e i r jurisdiction:
A. Civil Cases:
(1) All c a s e s o f f o r c i b l e e n t r y a n d u n l a w f u l
d e t a i n e r irrespective of t h e a m o u n t of d a m a g e s or
u n p a i d r e n t a l s sought to be recovered. W h e r e attorney's fees a r e a w a r d e d , t h e s a m e s h a l l not exceed
t w e n t y t h o u s a n d pesos (P20,000.00).
(2) All o t h e r civil cases, except p r o b a t e proceedings, w h e r e t h e total a m o u n t of t h e p l a i n t i f f s claim
does not exceed t e n t h o u s a n d p e s o s (P10.000.00),
exclusive of i n t e r e s t a n d costs.
X

II.
Civil Cases
SEC. 3. Pleadings.
A. Pleadings allowed. T h e only p l e a d i n g s
allowed to be filed a r e t h e complaints, compulsory
132

RULE 5

UNIFORM PROCEDURE IN TRIAL COURTS

SEC. 2

counterclaims and cross-claims pleaded in t h e answer,


and the answers thereto.
B.

Verification. All pleadings shall be verified.

S E C . 4. Duty of court. After t h e court determ i n e s t h a t t h e case falls u n d e r s u m m a r y procedure,


i t m a y , from a n e x a m i n a t i o n o f t h e a l l e g a t i o n s
t h e r e i n a n d such evidence as may be attached thereto,
dismiss the case o u t r i g h t on any of the grounds
a p p a r e n t therefrom for t h e dismissal of a civil action.
If no ground for dismissal is found, it shall forthwith issue summons which shall state t h a t the
s u m m a r y procedure u n d e r this Rule shall apply.
S E C . 5. Answer. W i t h i n t e n (10) d a y s from
s e r v i c e of s u m m o n s , t h e d e f e n d a n t s h a l l file his
a n s w e r to t h e complaint a n d serve a copy thereof on
t h e plaintiff. Affirmative a n d negative defenses not
pleaded t h e r e i n shall be deemed waived, except for
lack of jurisdiction over t h e subject m a t t e r . Crossclaims a n d compulsory counterclaims not a s s e r t e d in
t h e a n s w e r shall be considered barred. The a n s w e r
to c o u n t e r c l a i m s or cross-claims shall be filed and
served within t e n (10) days from service of the answer
in which they a r e pleaded.
S E C . 6. Effect of failure to answer. Should t h e
d e f e n d a n t fail to a n s w e r t h e complaint w i t h i n t h e
period above provided, t h e court, motu proprio, or on
motion of t h e plaintiff, shall r e n d e r j u d g m e n t as may
be w a r r a n t e d by t h e facts alleged in the complaint
a n d limited to w h a t is prayed for therein: Provided,
however, t h a t t h e court may in its discretion reduce
t h e a m o u n t of d a m a g e s and attorney's fees claimed
for being excessive or otherwise unconscionable. This
is w i t h o u t prejudice to the applicability of Section 4,
Rule 18 of t h e Rules of Court, if t h e r e are two or more
defendants.

133

RULE 5

REMEDIAL LAW COMPENDIUM

SEC. 2

SEC. 7. Preliminary conference; appearance of


parties. Not later t h a n t h i r t y (30) days after the
last a n s w e r is filed, a preliminary conference shall be
held. The rules on pre-trial in ordinary cases shall
be applicable to t h e preliminary conference unless
inconsistent with the provisions of t h i s Rule.
The failure of t h e plaintiff to a p p e a r in t h e preliminary conference shall be a cause for t h e dismissal
of his complaint. The defendant who a p p e a r s in t h e
absence of t h e plaintiff shall be entitled to j u d g m e n t
on his c o u n t e r c l a i m in accordance w i t h Section 6
hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, t h e plaintiff shall be entitled to j u d g m e n t in accordance with
Section 6 hereof. This Rule shall not apply w h e r e
one of two or more defendants sued u n d e r a common
cause of action who had pleaded a common defense
shall a p p e a r at t h e p r e l i m i n a r y conference.
S E C . 8. Record of preliminary conference.
Within five (5) days after t h e t e r m i n a t i o n of t h e preliminary conference, t h e court shall issue an order
s t a t i n g t h e m a t t e r s t a k e n u p t h e r e i n , including b u t
not limited to:
(a) W h e t h e r t h e p a r t i e s have arrived a t a n amicable s e t t l e m e n t , a n d if so, t h e t e r m s thereof;
(b) The stipulations or admissions e n t e r e d into
by t h e p a r t i e s ;
(c) W h e t h e r , on t h e basis of t h e pleadings a n d
t h e s t i p u l a t i o n s a n d admissions m a d e by t h e p a r t i e s ,
j u d g m e n t may be rendered without the need of
f u r t h e r p r o c e e d i n g s , i n which e v e n t t h e j u d g m e n t
s h a l l b e r e n d e r e d w i t h i n t h i r t y (30) d a y s from
issuance of t h e order;
(d) A clear specification of m a t e r i a l facts which
r e m a i n controverted; a n d

134

RULE 5

UNIFORM PROCEDURE IN TRIAL COURTS

(e) S u c h o t h e r m a t t e r s i n t e n d e d to expedite t h e
disposition of t h e case.
SEC.
9.
Submission of affidavits and position
papers. W i t h i n t e n (10) days from receipt of t h e
o r d e r m e n t i o n e d in t h e next preceding section, t h e
p a r t i e s shall s u b m i t t h e affidavits of t h e i r witnesses
a n d o t h e r evidence on t h e factual issues defined in
t h e order, t o g e t h e r w i t h t h e i r position p a p e r s s e t t i n g
forth t h e law a n d t h e facts relied upon by t h e m .
S E C . 10.
Rendition of judgment. W i t h i n
t h i r t y (30) days after receipt of t h e last affidavits and
position p a p e r s , or t h e expiration of t h e period for
filing t h e s a m e , t h e court shall r e n d e r j u d g m e n t .
However, should t h e court find it necessary to
clarify c e r t a i n m a t e r i a l facts, it may, d u r i n g t h e said
period, issue an order specifying t h e m a t t e r s to be
clarified, a n d r e q u i r e t h e p a r t i e s to s u b m i t affidavits
or o t h e r evidence on t h e said m a t t e r s within t e n (10)
days from receipt of said order. J u d g m e n t shall be
r e n d e r e d w i t h i n fifteen (15) days after t h e receipt of
t h e l a s t clarificatory affidavits, or t h e expiration of
t h e period for filing t h e s a m e .
T h e c o u r t s h a l l not r e s o r t to clarificatory procedure to gain time for t h e rendition of t h e j u d g m e n t .
X

IV.
Common Provisions
SEC. 18. Referral to Lupon. Cases requiring
referral to t h e Lupon for conciliation u n d e r t h e provisions of P r e s i d e n t i a l Decree No. 1508 w h e r e t h e r e
is no showing of compliance with such requirement,
s h a l l be d i s m i s s e d w i t h o u t prejudice, a n d may be
r e v i v e d only a f t e r s u c h r e q u i r e m e n t s h a l l h a v e
been complied with, x x x.

135

RULE 6

REMEDIAL LAW COMPENDIUM

SEC. 2

SEC. 19.
Prohibited pleadings and motions.
The following pleadings, motions, or petitions shall
not be allowed in t h e cases covered by this Rule:
(a) Motion to dismiss the complaint x x x except
on t h e ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section;
(b) Motion for a bill of p a r t i c u l a r s ;
(c) Motion for new trial, or for reconsideration of
a j u d g m e n t , or for reopening of trial;
(d) Petition for relief from j u d g m e n t ;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(0 Memoranda;
(g) P e t i t i o n for c e r t i o r a r i , m a n d a m u s , or prohibition a g a i n s t any interlocutory o r d e r issued by
t h e court;
(h) Motion to declare t h e defendant in default;
(i) Dilatory motions for postponement;
0) Reply;
(k) T h i r d - p a r t y complaints;
(1) I n t e r v e n t i o n s .
S E C . 2 0 . Affidavits. The affidavits r e q u i r e d
to be s u b m i t t e d u n d e r t h i s R u l e shall s t a t e only facts
of direct p e r s o n a l knowledge of t h e affiants which a r e
admissible in evidence, and shall show their
competence to testify to t h e m a t t e r s s t a t e d t h e r e i n .
A violation of t h i s r e q u i r e m e n t may subject
p a r t y or t h e counsel who s u b m i t s t h e s a m e to
ciplinary action, a n d shall be cause to expunge
i n a d m i s s i b l e affidavit or p o r t i o n t h e r e o f from
record.

the
disthe
the

S E C . 2 1 . Appeal. The j u d g m e n t or final order


shall be appealable to t h e a p p r o p r i a t e regional t r i a l
court which shall decide t h e s a m e in accordance with
Section 22 of B a t a s P a m b a n s a Big. 129. The decision
of t h e regional t r i a l court in civil cases governed by
t h i s R u l e , i n c l u d i n g forcible e n t r y a n d u n l a w f u l
136

RULE 5

UNIFORM PROCEDURE IN TRIAL COURTS

SEC. 2

d e t a i n e r , s h a l l b e i m m e d i a t e l y executory, w i t h o u t
prejudice to a further appeal t h a t may be t a k e n
therefrom. Section 10 of Rule 70 shall be deemed
repealed.
SEC. 22.
Applicability of the regular rules.
T h e r e g u l a r p r o c e d u r e p r e s c r i b e d in t h e Rules of
C o u r t s h a l l apply to t h e special cases herein provided
for in a suppletory capacity insofar as they a r e not
inconsistent h e r e w i t h .
S E C . 2 3 . Effectivity. T h i s r e v i s e d Rule on
S u m m a r y P r o c e d u r e s h a l l be effective on November 15, 1991."
8. New court r u l e s apply to pending cases only
with reference to proceedings t h e r e i n which t a k e place
after t h e d a t e of t h e i r effectivity. They do not apply to
the e x t e n t t h a t in t h e opinion of t h e court t h e i r application would not be feasible or would work injustice, in
which e v e n t t h e former p r o c e d u r e s h a l l apply. T h u s ,
where t h e application of t h e Rule on S u m m a r y Procedure
will m e a n t h e dismissal of t h e appeal of t h e p a r t y , t h e
same should not apply since, after all, t h e procedure they
availed of w a s also allowed u n d e r t h e Rules of C o u r t
(Laguio, et al. vs. Garnet, et al, G.R. No. 74903, Mar. 21,
1989).
9. While Sec. 6 (now, Sec. 7) of t h e Rule on Summary Procedure makes a preliminary conference
m a n d a t o r y , it does not logically follow t h a t the absence
thereof would necessarily render nugatory the proceedings
had in t h e court below. A preliminary conference u n d e r
this Rule is akin a n d similar to a pre-trial u n d e r Rule 20,
both provisions being e s s e n t i a l l y designed to p r o m o t e
amicable s e t t l e m e n t or to simplify t h e trial. Proceedings
conducted w i t h o u t pre-trial or a legally defective pre-trial
have been voided because e i t h e r of t h e p a r t i e s t h e r e t o
suffered s u b s t a n t i a l prejudice thereby or were denied due
process. T h u s , unless t h e r e is a showing of s u b s t a n t i a l
137

RULE S

REMEDIAL LAW COMPENDIUM

prejudice caused to a p a r t y , t h e i n a d v e r t e n t failure to


c a l e n d a r for a n d c o n d u c t a p r e - t r i a l o r p r e l i m i n a r y
conference cannot r e n d e r t h e proceedings illegal or void
ab initio. A p a r t y ' s failure to object to t h e absence of a
p r e l i m i n a r y conference, despite opportunity to do so, is
deemed a waiver of t h e right t h e r e t o , especially w h e r e
t h e p a r t y h a d a l r e a d y s u b m i t t e d to t h e j u r i s d i c t i o n of
t h e t r i a l court (Martinez, et al. vs. De la Merced, et al.,
G.R. No. 82039, June 20, 1989).
10. E x c e p t i n c a s e s c o v e r e d b y t h e a g r i c u l t u r a l
t e n a n c y laws or w h e n the law o t h e r w i s e expressly
p r o v i d e s , all a c t i o n s for forcible e n t r y a n d u n l a w f u l
d e t a i n e r , irrespective of t h e a m o u n t of d a m a g e s or u n p a i d
r e n t a l s sought to be recovered, a r e now governed by t h e
s u m m a r y procedure provided in revised Rule 70.

138

P R O C E D U R E I N R E G I O N A L TRIAL C O U R T S
RULE 6
KINDS OF PLEADINGS
S e c t i o n 1. Pleadings defined. P l e a d i n g s a r e t h e
written statements of the respective claims and
d e f e n s e s o f t h e p a r t i e s s u b m i t t e d t o t h e c o u r t for
appropriate judgment, (la)
S e c . 2. Pleadings allowed. T h e c l a i m s of a p a r t y
are a s s e r t e d i n a c o m p l a i n t , c o u n t e r c l a i m , c r o s s claim, third (fourth, etc.)-party complaint or
complaint-in-intervention.
The d e f e n s e s of a party are alleged in the a n s w e r
to the pleading asserting a claim against him.
A n a n s w e r m a y b e r e s p o n d e d t o b y a r e p l y , (n)
NOTE
1. In a broad sense, the t e r m "pleadings" includes
all p a p e r s filed, excluding evidentiary m a t t e r s , from the
complaint down to the j u d g m e n t . Documents a t t a c h e d to
the p l e a d i n g s a n d m a d e a p a r t thereof a r e considered
evidence a n d also p a r t of t h e pleadings (Asia Banking
Corporation vs. Olsen & Co., 48 Phil. 529).
A bill of
particulars constitutes p a r t of the pleading that it
s u p p l e m e n t s (Sec. 6, Rule 12). A covering l e t t e r for a
pleading is not p a r t of t h e l a t t e r (Clorox Co. vs. Director
of Patents, L-19531, Aug. 10, 1967).
S e c . 3 . Complaint. T h e c o m p l a i n t i s t h e
pleading alleging the plaintiffs cause or causes of
action. The n a m e s and residences of the plaintiff
and d e f e n d a n t m u s t b e s t a t e d i n t h e c o m p l a i n t . (3a)

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NOTES
1. The provisions of t h i s section with r e g a r d to a
complaint are also t r u e with and are applicable to other
initiatory pleadings, as well as to petitions filed in the
t r i a l or appellate courts, except t h a t , in t h e l a t t e r case, it
is t h e act of t h e lower court which is complained of t h a t
has to be alleged, instead of a cause of action as technically
understood.
2. The jurisdiction of the court a n d t h e n a t u r e of t h e
action a r e d e t e r m i n e d by t h e a v e r m e n t s in t h e complaint.
The p r a y e r for relief is not controlling on t h e court and
is merely advisory as to t h e n a t u r e of t h e action, as it is
t h e a v e r m e n t s in t h e complaint which control. See notes
u n d e r Sec. 2, Rule 7.
S e c . 4. Answer. An a n s w e r is a p l e a d i n g in
w h i c h a defending party sets forth his defenses.
(4a)
S e c . 5 . Defenses. D e f e n s e s m a y e i t h e r b e
negative or affirmative.
(a) A n e g a t i v e d e f e n s e i s t h e s p e c i f i c d e n i a l o f
t h e material fact or facts alleged in t h e p l e a d i n g of
the claimant essential to his cause or causes of
action.
(b) An a f f i r m a t i v e d e f e n s e is an a l l e g a t i o n of a
new matter which, while hypothetically admitting
the material allegations in the pleading of the
c l a i m a n t , w o u l d n e v e r t h e l e s s p r e v e n t or bar
recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other
m a t t e r b y w a y o f c o n f e s s i o n a n d a v o i d a n c e . (5a)

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NOTES
1. Section 5(a) defines a "negative defense" as the
specific denial of t h e m a t e r i a l allegations in the complaint.
A d e n i a l is not specific j u s t b e c a u s e it is so qualified
(Agton vs. CA, et al., L-37309, Mar. 30, 1982), a n d t h i s is
especially t r u e w h e r e a b l a n k e t denial is made of all t h e
averments of t h e complaint i n s t e a d of dealing particularly
with e a c h . S u c h a g e n e r a l d e n i a l will be d e e m e d an
admission of t h e a v e r m e n t s in t h e complaint.
2. To be considered a specific denial, Rule 8 provides:
"Sec. 10. Specific denial. The defendant m u s t
specify e a c h m a t e r i a l allegation of fact t h e t r u t h of
which he does not a d m i t and, w h e n e v e r practicable,
s h a l l s e t forth t h e s u b s t a n c e o f t h e m a t t e r s upon
which he relies to s u p p o r t his denial. Where a
d e f e n d a n t d e s i r e s to deny only a p a r t of an a v e r m e n t ,
he shall specify so much of it as is t r u e and m a t e r i a l
and shall deny only the r e m a i n d e r . Where a
defendant is without knowledge or information
sufficient to form a belief as to t h e t r u t h of a m a t e r i a l
a v e r m e n t m a d e in t h e complaint, he shall so s t a t e ,
and t h i s s h a l l have t h e effect of a denial."
3. Sec. 5(b) defines a n d illustrates t h e so-called
affirmative defenses. The e n u m e r a t i o n is not exclusive.
Thus, res judicata (Fernandez vs. De Castro, 48 Phil. 123),
ultra Mrofl aoto of a oorporation, or lack of a u t h o r i t y of a
person assuming to a c t for the corporation (Ramirez vs.
Orientalist Co., 38 Phil. 634), laches (Gov't of the P.I. vs.
Wagner, et al., 49 Phil. 944), a n d u n c o n s t i t u t i o n a l i t y
(Santiago vs. Far Eastern Broadcasting Co., 73 Phil. 408)
are affirmative d e f e n s e s which should be specifically
pleaded. F u r t h e r m o r e , if no motion to dismiss had been
filed, a n y of t h e g r o u n d s t h e r e f o r m a y be r a i s e d as
affirmative defenses in t h e a n s w e r (Sec. 6, Rule 16).

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S e c . 6. Counterclaim. A c o u n t e r c l a i m is a n y
claim w h i c h a defending party may have against
a n o p p o s i n g p a r t y . (6a)
S e c . 7.
Compulsory counterclaim.A c o m p u l s o r y
counterclaim is one which, being cognizable by the
regular courts of justice, arises^ out ofjor is
connected with the transaction or occurrence
constituting the subject matter of the opposing
party's c l a i m and d o e s not r e q u i r e for its
adjudication the presence of third parties of w h o m
the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the
court both as to the a m o u n t and the nature thereof,
except that in an original action before the
Regional Trial Court, the c o u n t e r c l a i m may be
c o n s i d e r e d c o m p u l s o r y r e g a r d l e s s o f t h e a m o u n t , (n)
NOTES
1. In American law from which we have derived t h e
concept of a counterclaim, it is considered as in effect a
new s u i t in which t h e p a r t y n a m e d as t h e d e f e n d a n t is
t h e p l a i n t i f f a n d t h e plaintiff b e c o m e s t h e d e f e n d a n t
(Roberts Min. & Mill Co. vs. Schroder, CCA. Nev., 95 F.
2d 522). It is b u t a n o t h e r n a m e for a cross-petition (Clark
vs. Duncanson, 79 Okl. 180, 192 P. 806, 16 A.L.R. 450) or
is a s u b s t i t u t e for a cross-bill in equity (Vidal vs. South
American Securities Co., CCA. N.Y., 276 F. 855).
The
t e r m is b r o a d e r in m e a n i n g t h a n set-off or r e c o u p m e n t ,
and includes t h e m both (Williams vs. Williams, 192 N.C.
405, 135 S.E. 39; Aetna Life Insurance Co. vs. Griffin,
200 N.C. 251, 156 S.E. 515).
2. A c l a r i f i c a t i o n h a s b e e n i n c o r p o r a t e d in t h e
d e f i n i t i o n of a c o m p u l s o r y c o u n t e r c l a i m by r e a s o n of
d i v e r g e n t views i n t h e p a s t a s t o w h e t h e r o r not t h e
a m o u n t involved in t h e counterclaim should be t a k e n into
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account w h e n such a counterclaim is pleaded in t h e Regional Trial Court, in t h e s a m e m a n n e r as t h e rule on


j u r i s d i c t i o n a l a m o u n t r e q u i r e d for a c o m p l a i n t filed
therein. The present formulation makes it clear t h a t
such a counterclaim may be e n t e r t a i n e d by t h e Regional
Trial Court r e g a r d l e s s of t h e a m o u n t involved provided
that, in addition to t h e other r e q u i r e m e n t s , it is cognizable
by t h e r e g u l a r c o u r t s of j u s t i c e . T h u s , for i n s t a n c e , a
claim a r i s i n g from a labor dispute, a l t h o u g h w i t h i n t h e
jurisdictional a m o u n t provided for Regional Trial Courts,
may not be raised as a counterclaim t h e r e i n as, u n d e r t h e
law presently in force, t h e same should be filed in t h e labor
t r i b u n a l s or agencies. The s a m e is t r u e with respect to
other claims jurisdiction over which is vested exclusively
in the quasi-judicial agencies.
3. As t h u s clarified, counterclaims a r e classified a n d
distinguished as follows:
A compulsory counterclaim- is one which arises out
of or is n e c e s s a r i l y c o n n e c t e d w i t h t h e t r a n s a c t i o n or
occurrence t h a t is t h e s u b j e c t - m a t t e r of t h e opposing
party's claim. If it is w i t h i n t h e jurisdiction of a r e g u l a r
court of j u s t i c e a n d it does not r e q u i r e for its adjudication t h e presence of t h i r d p a r t i e s over whom t h e court
cannot acquire jurisdiction, it is b a r r e d if not set up in
the action (see Sec. 2, Rule 9). This is also known as a
"recoupment" (Lopez vs. Glories 40 Phil, 26).
A permissive counterclaim does not arise out of nor
is it necessarily connected w i t h the subject-matter of t h e
opposing p a r t y ' s claim. It is not b a r r e d even if not set up
in the action. This is also known as a "set-off (Lopez vs.
Gloria, supra).
4. Accordingly, even if t h e counterclaim arises out
of t h e s u b j e c t - m a t t e r of t h e opposing p a r t y ' s claim but
it is not w i t h i n t h e jurisdiction of the regular courts of
justice, or it r e q u i r e s for its adjudication the presence of
third p a r t i e s over whom the court cannot acquire
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SECS. 6-7

jurisdiction, it is considered as only a permissive counterclaim a n d is not b a r r e d even if not set up in t h e action
(see also Sec. 2, Rule 9).
5. A counterclaim is, therefore, compulsory if (a) it
arises out of, or is necessarily connected with, t h e t r a n s action or occurrence which is t h e s u b j e c t - m a t t e r of t h e
o p p o s i n g p a r t y ' s claim; (b) it does not r e q u i r e for its
adjudication t h e presence of t h i r d p a r t i e s of w h o m t h e
court c a n n o t acquire jurisdiction; a n d (c) subject to t h e
qualification on t h e jurisdictional a m o u n t w i t h r e g a r d to
c o u n t e r c l a i m s r a i s e d in t h e Regional T r i a l C o u r t s , t h e
court h a s j u r i s d i c t i o n to e n t e r t a i n t h e claim. While a
n u m b e r of criteria have been advanced for t h e d e t e r m i n a t i o n of w h e t h e r t h e c o u n t e r c l a i m is c o m p u l s o r y or
permissive, t h e "one compelling t e s t of compulsoriness"
is t h e logical relationship b e t w e e n t h e claim alleged in
t h e complaint a n d t h a t in t h e counterclaim, i.e., w h e r e
s e p a r a t e t r i a l s of e a c h of t h e r e s p e c t i v e c l a i m s would
involve a s u b s t a n t i a l d u p l i c a t i o n of effort or t i m e by
t h e p a r t i e s a n d t h e courts, a s w h e r e they involve m a n y
of t h e s a m e factual and/or legal issues (Quintanilla vs.
CA, et al., G.R. No. 101747, Sept. 24, 1997).
In Alday vs. FGU Insurance Corp. (G.R. No. 138822,
J a n . 23, 2001), t h e S u p r e m e Court r e i t e r a t e d t h e c r i t e r i a
in d e t e r m i n i n g w h e t h e r a counterclaim is compulsory or
permissive, t h a t is, w h e t h e r or not (I) t h e issues of fact
and law raised by the claim and c o u n t e r c l a i m are
essentially t h e s a m e , (2) res judicata would b a r a subs e q u e n t s u i t or defendant's claim a b s e n t t h e compulsory
c o u n t e r c l a i m r u l e , (3) s u b s t a n t i a l l y t h e s a m e evidence
s u p p o r t o r r e f u t e t h e claim a n d t h e c o u n t e r c l a i m , o r
(4) t h e r e is a logical relation b e t w e e n t h e claim a n d t h e
c o u n t e r c l a i m (citing Valencia vs. CA, et al. [263 SCRA
275J). See also Tan vs. Kaakbay Finance Corp., et al.,
G.R. No. 146595, June 20, 2003, a n d c a s e s d i s c u s s e d
therein.

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


if t h e s a m e a r i s e s out of or is necessarily connected with
the claim alleged in t h e complaint in t h e previous case
but was not set up t h e r e i n , since Sec. 8 of Rule 11 provides
t h a t a compulsory counterclaim " t h a t a defending p a r t y
has at the time he files his answer s h a l l be c o n t a i n e d
therein" (Tiu Po vs. Bautista, G.R. No. 55514, Mar. 17,
1981).
7. W h e r e t h e c o u n t e r c l a i m , a n d t h e s a m e is t r u e
with a cross-claim, w a s already in existence at t h e time
the d e f e n d a n t filed his a n s w e r b u t was not set up t h e r e i n
t h r o u g h o v e r s i g h t , i n a d v e r t e n c e , or excusable neglect,
or w h e n justice so r e q u i r e s , t h e s a m e may be set up by
filing an a m e n d e d a n s w e r (Sec. 10, Rule 11). Where said
counterclaim or cross-claim m a t u r e d after t h e filing of t h e
a n s w e r , t h e d e f e n d i n g p a r t y c a n s e t it up by filing a
s u p p l e m e n t a l a n s w e r or p l e a d i n g (Sec. 9, Rule 11). In
either case, leave of court is required and such pleadings
must be filed before t h e rendition of the j u d g m e n t .
8. A c o u n t e r c l a i m or c r o s s - c l a i m n e e d n o t be
answered if it is based on a n d inseparable from t h e very
defense r a i s e d by t h e opposing p a r t y as it will merely
r e s u l t in said opposing p a r t y p l e a d i n g t h e s a m e facts
already raised in his former pleading (Navarro vs. Bello,
102 Phil. 1019) or w h e r e t h e counterclaim merely alleges
the opposite of t h e facts in t h e complaint (Ballecer vs.
Bernardo, L-21766, Sept. 30, 1966).
Thus, where the
counterclaims a r e only for d a m a g e s and attorney's fees
arising from t h e filing of t h e complaint, the same shall be
considered as special defenses and need not be answered
(see Worcester vs. Lorenzana, 104 Phil. 234).
9. A plaintiff who chooses not to a n s w e r a compulsory counterclaim cannot be declared in default on such
counterclaim. Where t h e complaint is for consolidation
because t h e period for redemption had expired and the

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counterclaim is for reformation on t h e ground t h a t the


document was really a mortgage, the inconsistent
allegations in t h e complaint s t a n d as an a n s w e r to t h e
counterclaim (Gojo vs. Goyola, L-26768, Oct. 30, 1970).
10. A counterclaim or cross-claim m u s t be a n s w e r e d
w i t h i n 10 days from service (Sec. 4, Rule 11). W h e r e t h e
p a r t y is in default on said counterclaim or cross-claim,
t h e court may r e n d e r j u d g m e n t g r a n t i n g such relief as
the pleading may w a r r a n t or require the claimant to
s u b m i t evidence (Sec. 3, Rule 9).
1 1 . Although t h e G o v e r n m e n t is
from suit, if it files an action a g a i n s t
s u r r e n d e r s its privileged position and
validly file a c o u n t e r c l a i m a g a i n s t
Oriental Shipping Co., 95 Phil. 905).

generally i m m u n e
a p r i v a t e p a r t y , it
t h e d e f e n d a n t may
it (Froilan vs. Pan

12. It is not proper to allow a counterclaim to be filed


a g a i n s t a lawyer who h a s filed a complaint for his client
and is merely his r e p r e s e n t a t i v e in court, not a plaintiff
or c o m p l a i n a n t in t h e case, since such a procedure would
r e s u l t in mischievous consequences. A lawyer owes his
client e n t i r e devotion to his genuine i n t e r e s t , w a r m zeal
in t h e m a i n t e n a n c e a n d defense of his r i g h t s , a n d t h e
exertion of his u t m o s t l e a r n i n g a n d ability. He cannot
properly a t t e n d to his d u t i e s if, in t h e s a m e case, he is
k e p t busy defending himself. Where t h e lawyer acts in
t h e n a m e of a client, t h e c o u r t s h o u l d not p e r m i t his
being impleaded as an additional p a r t y d e f e n d a n t in t h e
c o u n t e r c l a i m in t h e very s a m e case w h e r e he is acting
only as a counsel. Any claim for alleged d a m a g e s or o t h e r
causes of action a g a i n s t h i m should be filed in an entirely
s e p a r a t e a n d d i s t i n c t civil a c t i o n (Chavez, etc. vs.
Sandiganbayan,
et al., G.R. No. 91391, Jan. 24, 1991).
S e c . 8. Cross-claim. A c r o s s - c l a i m is a n y c l a i m
by one party against a co-party arising out of the

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transaction or occurrence that is the subject matter


either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that
the party against w h o m it is asserted is or may be
l i a b l e t o t h e c r o s s - c l a i m a n t for all o r p a r t o f a c l a i m
asserted in the action against the cross-claimant.
(7)
NOTES
1. A cross-claim differs from a counterclaim in t h a t
the former is filed a g a i n s t a co-party a n d a cross-claim
always a r i s e s out of t h e t r a n s a c t i o n or occurrence t h a t is
t h e s u b j e c t - m a t t e r e i t h e r of t h e original action or of a
counterclaim t h e r e i n . A cross-claim which is not set up
in t h e a c t i o n is b a r r e d , e x c e p t w h e n it is o u t s i d e t h e
jurisdiction of t h e court or if t h e court c a n n o t acquire
jurisdiction over t h i r d p a r t i e s whose presence is necessary
for t h e adjudication of said cross-claim (Sec. 8 of this Rule;
Sec. 2, Rule 9). The l a t t e r case is w h a t some w r i t e r s call
a permissive cross-claim.
2. The dismissal of t h e complaint carries with it the
dismissal of a cross-claim which is purely defensive, but
not a cross-claim seeking affirmative relief (Torres, et al.
vs. CA, et al., L-25889, Jan. 12, 1973).
S e c . 9.
Counter-counterclaims and counter-crossclaims. A c o u n t e r c l a i m m a y be a s s e r t e d a g a i n s t
an original counter-claimant.
A c r o s s - c l a i m m a y also be filed a g a i n s t an
o r i g i n a l c r o s s - c l a i m a n t , (n)
S e c . 10. Reply. A r e p l y is a p l e a d i n g , t h e office
or function of w h i c h is to deny, or allege facts in
denial or avoidance of new matters alleged by way
of defense in the answer and thereby join or make
issue as to s u c h n e w matters. If a party does not
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SECS. 9-10

file s u c h r e p l y , all t h e n e w m a t t e r s a l l e g e d in t h e
a n s w e r a r e d e e m e d c o n t r o v e r t e d , '-h ^ p P
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such
claims shall be set forth in an a m e n d e d or
s u p p l e m e n t a l c o m p l a i n t . (11)
NOTES
1. The p r i m a r y purpose of t h e reply is to join issues
with new m a t t e r s raised in t h e a n s w e r and t h e r e b y authorize t h e p l e a d e r of t h e reply to introduce evidence on
said new issues.
2. T h e filing of t h e reply is o p t i o n a l as t h e new
matters raised in the answer are deemed controverted
even w i t h o u t a reply. Where t h e p a r t y desires to file a
reply, he m u s t n e v e r t h e l e s s do so w i t h i n 10 days from
service of t h e pleading responded to (Sec. 6, Rule 11).
3. As t h e n formulated, it was believed t h a t in t h e
following i n s t a n c e s , t h e filing of a reply w a s compulsory
a n d m u s t be filed w i t h i n t h e said 10-day period:
(a) W h e r e t h e a n s w e r alleges t h e defense of u s u r y
in which case a reply u n d e r o a t h is required, otherwise
t h e allegations of u s u r y a r e deemed a d m i t t e d (Sec. 11,
Rule 8); a n d
(b) W h e r e t h e a n s w e r i s b a s e d o n a n a c t i o n a b l e
d o c u m e n t in which case a verified reply is n e c e s s a r y ,
otherwise the genuineness and due execution of said
actionable document are generally deemed admitted
(Sec. 8, Rule 8).
With respect to p a r . (a) on usury, t h e view t h a t all
a l l e g a t i o n s of u s u r y h a d to be d e n i e d specifically a n d
u n d e r o a t h w a s e n g e n d e r e d by t h e fact t h a t t h e former
Sec. 1 of Rule 9, in m a k i n g t h e r e q u i r e m e n t for such
sworn denial u n d e r pain of admission of t h e allegations
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on usury, did not m a k e any distinction as to t h e pleadings


involved.
However, in Liam Law vs. Olympic Sawmill,
et al. (L-30771, May 26, 1984), it was held t h a t p u r s u a n t
to Sec. 9 of t h e U s u r y Law, t h e first abovecited instance
r e q u i r i n g denial of allegations of u s u r y u n d e r o a t h does
not apply to a case w h e r e it is t h e defendant, not t h e
plaintiff, who is alleging usury.
Accordingly, Sec. 11 of Rule 8 now e x p r e s s e s t h a t
specific r e q u i r e m e n t a n d provides t h a t "(a)llegations of
u s u r y in a c o m p l a i n t to recover u s u r i o u s i n t e r e s t a r e
deemed a d m i t t e d if not denied u n d e r oath." Hence, if t h e
allegation of u s u r y is contained in the defendant's
answer, for i n s t a n c e , by way of defense to a complaint
for a s u m of money, it is not necessary for plaintiff to file
a reply t h e r e t o in o r d e r to deny t h a t allegation u n d e r
oath.
It is believed, however, t h a t if such allegation was
made by t h e defendant in a counterclaim in t h a t action,
it would be necessary for plaintiff, in order to controvert
the s a m e , to m a k e a specific d e n i a l u n d e r o a t h in t h e
answer to such counterclaim since t h e latter, after all, is
in t h e n a t u r e of a counter-complaint of t h e defendant.
In fact, u n d e r Sec. 1, Rule 3, t h e t e r m "plaintiff may refer
to t h e claiming p a r t y , t h e counter-claimant, t h e crossclaimant, or t h e t h i r d (fourth, etc.) party-plaintiff.
The distinction here proposed is due to the fact t h a t
a c o u n t e r c l a i m i n v o l v e s a c a u s e of a c t i o n a n d s e e k s
affirmative relief, while a defense merely defeats t h e
p l a i n t i f f s cause of action by a denial or confession and
avoidance, and does not a d m i t of affirmative relief to t h e
d e f e n d a n t (Lovett vs. Lovett, 93 Fla. 611, 112 So. 768;
Secor vs. Silver, 165 Iowa 673, 146 N.W. 845).
4. Where t h e case is submitted on the pleadings, the
failure of the p a r t y to make a reply does not mean t h a t
he is deemed to have controverted t h e issues raised in
the answer, as this is an exception to the rule (Falcasantos
149

RULE 6

REMEDIAL LAW COMPENDIUM

SEC. 11

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


5. A p a r t y cannot, in his reply, a m e n d his cause of
action (Calvo vs. Roldan, 76 Phil. 445) nor i n t r o d u c e
t h e r e i n new or a d d i t i o n a l c a u s e s of action (Anaya vs.
Palaroan, L-27930, Nov. 26, 1970).
S e c . 1 1 . Third, (fourth, etc.) - p a r t y complaint.
A t h i r d ( f o u r t h , etc.) - p a r t y c o m p l a i n t is a c l a i m
t h a t a d e f e n d i n g p a r t y m a y , w i t h l e a v e o f c o u r t , file
a g a i n s t a p e r s o n n o t a p a r t y to t h e a c t i o n , c a l l e d
t h e t h i r d ( f o u r t h , etc.) - p a r t y d e f e n d a n t , for
contribution, indemnity, subrogation or any other
relief, i n r e s p e c t o f h i s o p p o n e n t ' s c l a i m . ( 1 2 a )
- ..

----

'

J.'.y

...

wj

NOTES
1. A t h i r d - p a r t y complaint is similar to a cross-claim
in t h a t t h e t h i r d - p a r t y plaintiff s e e k s to recover from
a n o t h e r p e r s o n some relief i n r e s p e c t t o t h e opposing
p a r t y ' s claim, b u t it differs therefrom in t h a t in a crossclaim, t h e t h i r d p a r t y is a l r e a d y impleaded in t h e action
while in a t h i r d - p a r t y complaint, said t h i r d p a r t y is not
y e t i m p l e a d e d . Consequently,- in t h e filing of a t h i r d p a r t y complaint, leave of court is r e q u i r e d as thereafter,
if g r a n t e d , s u m m o n s will have to be served on t h e thirdp a r t y defendant.
2. A t h i r d - p a r t y complaint need not arise out of or
be e n t i r e l y d e p e n d e n t on t h e m a i n action as it suffices
t h a t t h e former be only "in respect of t h e claim of t h e
t h i r d - p a r t y p l a i n t i f f s opponent. Consequently, t h e judgm e n t on a t h i r d - p a r t y complaint may become final a n d
executory w i t h o u t w a i t i n g for t h e final d e t e r m i n a t i o n of
t h e m a i n case (Pascual vs. Bautista, L 21644, May 29,
1970).
3. A t h i r d - p a r t y complaint is similar to a complaint
in i n t e r v e n t i o n (Rule 19) in t h a t both r e s u l t in b r i n g i n g
150

RULE 6

KINDS OF PLEADINGS

SEC. 11

into t h e action a t h i r d person who was not originally a


party; but they differ in t h a t t h e initiative in a t h i r d - p a r t y
complaint is w i t h t h e person already a p a r t y to t h e action,
while in intervention t h e initiative is with a non-party
who s e e k s t o j o i n t h e a c t i o n . T h e d e f e n d a n t i s n o t
compelled to bring t h i r d p a r t i e s into t h e litigation as t h e
rule simply p e r m i t s t h e inclusion of anyone who meets
the s t a n d a r d set forth therein, in order to avoid multiplicity
of s u i t s (see Balbastro, et al. vs. CA, et al., L-33255
Nov. 29, 1972).
4. The t e s t s to d e t e r m i n e w h e t h e r the t h i r d - p a r t y
complaint is in respect of plaintiff s claim a r e :
"a. W h e r e it a r i s e s out of t h e s a m e t r a n s a c t i o n on
which t h e p l a i n t i f f s claim is based; or w h e t h e r t h e thirdparty claim, a l t h o u g h arising out of a n o t h e r or different
contract or t r a n s a c t i o n , is connected with the p l a i n t i f f s
claim;
b. W h e t h e r t h e t h i r d - p a r t y defendant would be liable
to the plaintiff or to t h e defendant for all or p a r t of t h e
plaintiff's claim a g a i n s t t h e original defendant, although
the t h i r d - p a r t y defendant's liability arises out of a n o t h e r
transaction; a n d
c. W h e t h e r t h e t h i r d - p a r t y defendant may assert any
defenses which t h e t h i r d - p a r t y plaintiff h a s or may have
to t h e p l a i n t i f f s claim" (see Capayas vs. CFI of Albay,
et al. 77 Phil. 181).
C o n s e q u e n t l y , a d e f e n d a n t may file a t h i r d - p a r t y
complaint in t h e s a m e capacity in which he is being sued
in t h e original complaint. A plaintiff may also file a thirdparty complaint b u t also in t h e same capacity in which he
is sued u n d e r a counterclaim.
5. Where t h e t r i a l court has jurisdiction over the
main case, it also h a s jurisdiction over t h e t h i r d - p a r t y
complaint regardless of t h e a m o u n t involved as a thirdparty complaint is merely auxiliary to and is a continua151

RULE 6

REMEDIAL LAW COMPENDIUM

SEC. 11

tion of t h e main action (Republic vs. Central Surety &


Insurance Co., et al., L-27802, Oct. 26, 1968; Eastern
Assurance & Surety Corp. vs. Cui, et al., G.R. No. 54452,
July 20, 1981). For t h e s a m e r e a s o n , w h a t is d e t e r minative of venue a r e t h e operative facts in the main case,
and not those alleged in t h e t h i r d - p a r t y complaint.
6. An order disallowing a t h i r d - p a r t y complaint is
appealable (Dtr&ioo uai Malagat, L-2413, Aug. 10, 1967)
since it would finally dispose of d e f e n d a n t ' s r i g h t to
implead the t h i r d p a r t y .
7. Where a t h i r d - p a r t y defendant appealed to the
t h e n Court of F i r s t Instance but t h e t h i r d - p a r t y plaintiff
(defendant) did not a p p e a l from t h e j u d g m e n t a g a i n s t
him in favor of t h e plaintiff, such j u d g m e n t became executory, w i t h o u t prejudice to t h e t h i r d - p a r t y defendant's
appeal being given due course as it p e r t a i n s only to t h e
t h i r d - p a r t y complaint (Firestone Tire & Rubber Co. vs.
Tempongko, L-24399, Mar. 28, 1969) a n d such j u d g m e n t
on t h e t h i r d - p a r t y complaint is s e p a r a t e a n d severable
from t h a t in t h e m a i n case.
8. Where t h e t r i a l court dismissed t h e complaint
a n d t h e d e f e n d a n t s ' t h i r d - p a r t y complaint a n d only t h e
plaintiff appealed, t h e Court of Appeals, in r e v e r s i n g t h e
j u d g m e n t dismissing p l a i n t i f f s complaint, c a n n o t m a k e
a f i n d i n g of l i a b i l i t y on t h e p a r t of t h e t h i r d - p a r t y
defendants since t h e defendants, as t h i r d - p a r t y plaintiffs,
did not a p p e a l from t h e d i s m i s s a l of t h e i r t h i r d - p a r t y
complaint and the third-party defendants were not
p a r t i e s in t h e case on a p p e a l (Go, et al. vs. CA, et al,
L-25393, Oct. 30, 1980).
9. A t h i r d - p a r t y c o m p l a i n t c a n n o t be filed in a
special civil action for declaratory relief as no m a t e r i a l
relief is sought in t h i s action
(Comm. of Customs, et al.
vs. Cloribel, et al., L-21036, June 30, 1977).

152

RULE 6

KINDS OF PLEADINGS

SECS. 12, 13

S e c . 12. Bringing new parties. W h e n t h e


presence of parties other than those to the original
a c t i o n i s r e q u i r e d for t h e g r a n t i n g o f c o m p l e t e r e l i e f
in the d e t e r m i n a t i o n of a c o u n t e r c l a i m or crossclaim, the court shall order them to be brought in
as defendants, if jurisdiction over them can be
o b t a i n e d . (14)
NOTES
1. F o r p u r p o s e s of Sec. 12 of t h i s Rule, t h e court
m a y a u t h o r i z e t h e filing o f t h e p r o p e r t h i r d - p a r t y
complaint to implead t h e o t h e r p a r t i e s not included in
the original complaint (Rubio vs. Mariano, et al., L-30403,
Jan. 31, 1973).
2. E v e n w h e r e t h e i m p l e a d i n g of t h e t h i r d - p a r t y
defendants does not fall squarely within t h e requisites of
Sec. 12, Rule 6 on t h i r d - p a r t y complaints, their inclusion
in t h e action may be p e r m i t t e d where t h e r e is a question
of law or fact common to t h e r i g h t in which they a r e
i n t e r e s t e d a n d a n o t h e r right sought to be enforced in the
action, hence t h e i r inclusion as proper (now, necessary)
p a r t i e s is j u s t i f i e d u n d e r Sec. 6, Rule 3 of t h e Rules
(Balbastro, et al. vs. CA, et al., supra).
S e c . 13. Answer to third (fourth, etc.) - party
complaint. A t h i r d ( f o u r t h , etc.) - p a r t y d e f e n d a n t
may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that
t h e t h i r d ( f o u r t h , etc.) - p a r t y p l a i n t i f f m a y h a v e
against the original p l a i n t i f f s claim. In proper
cases, he may also assert a counterclaim against
t h e o r i g i n a l p l a i n t i f f i n r e s p e c t o f t h e latter's c l a i m
a g a i n s t t h e t h i r d - p a r t y plaintiff, (n)

153

RULE 7
PARTS OF A P L E A D I N G
S e c t i o n 1. Caption. T h e c a p t i o n s e t s f o r t h t h e
name of the court, the title of the action, and the
docket number if assigned.
The title of the action indicates the names of
t h e p a r t i e s . T h e y s h a l l all b e n a m e d i n t h e o r i g i n a l
c o m p l a i n t or petition; but in all s u b s e q u e n t
pleadings, it shall be sufficient if the name of the
first party on each side be stated with an
appropriate indication when there are other
parties.
Their respective participation in the case shall
b e i n d i c a t e d , ( l a , 2a)
NOTES
1. As revised, t h e caption of a p l e a d i n g in civil cases
is no l o n g e r r e q u i r e d to s t a t e t h e d e s i g n a t i o n of t h e
pleading, since t h e designation of t h e p l e a d i n g is properly contained in t h e body thereof (Sec. 2) p r e c e d i n g t h e
allegations. In criminal cases, it is r e q u i r e d t h a t , whenever possible, t h e complaint or information should s t a t e
t h e d e s i g n a t i o n of t h e offense or t h e section or subsection
of t h e s t a t u t e p u n i s h i n g it (see Sec. 8, Rule 110 a n d notes
thereunder).
2. It is not the caption of the pleading but the
allegations t h e r e i n t h a t determine t h e n a t u r e of t h e action,
a n d t h e c o u r t s h a l l g r a n t t h e relief w a r r a n t e d b y t h e
allegations a n d t h e proof even if no such relief is p r a y e d
for (Ras vs. Sua, L-23302, Sept. 25, 1968).
3. The abbreviation "et al." for et alii ("and others")
or et alius ("and another") is often affixed to t h e n a m e of

154

RULE 7

PARTS OF A PLEADINGS

SEC. 2

the person first mentioned, where there are more than


one party to the action on either side (see In re Mc-Govern's
Estate, 77 Mont. 182, 250 P. 812; Lyman vs. Milton, 44
Cal. 630).
S e c . 2. The body.The b o d y of t h e p l e a d i n g s e t s
forth i t s d e s i g n a t i o n , t h e a l l e g a t i o n s o f t h e p a r t y ' s
c l a i m s o r d e f e n s e s , t h e r e l i e f p r a y e d for, a n d t h e d a t e
o f t h e p l e a d i n g , (n)
(a) Paragraphs. T h e a l l e g a t i o n s in t h e b o d y
of a p l e a d i n g shall be divided into paragraphs so
numbered as to be readily identified, each of which
shall c o n t a i n a s t a t e m e n t of a s i n g l e set of
c i r c u m s t a n c e s s o far a s t h a t c a n b e d o n e w i t h
c o n v e n i e n c e . A p a r a g r a p h m a y be r e f e r r e d to by a
n u m b e r i n a l l s u c c e e d i n g p l e a d i n g s . (3a)
(b) Headings. W h e n t w o or m o r e c a u s e s of
a c t i o n a r e j o i n e d , t h e s t a t e m e n t o f t h e first s h a l l b e
p r e f a c e d b y t h e w o r d s "first c a u s e o f a c t i o n , " o f t h e
s e c o n d b y " s e c o n d c a u s e o f a c t i o n , " a n d s o o n for
the others.
When one or more paragraphs in the answer
are a d d r e s s e d t o o n e o f s e v e r a l c a u s e s o f a c t i o n i n
the complaint, they shall be prefaced by the words
" a n s w e r t o t h e first c a u s e o f a c t i o n " o r " a n s w e r t o
the s e c o n d c a u s e of action" and so on; and w h e n
one or more paragraphs of the answer are addressed
to several causes of action, they shali be prefaced
by w o r d s to t h a t effect. (4)
(c) Relief. T h e p l e a d i n g s h a l l s p e c i f y t h e r e l i e f
s o u g h t , b u t i t m a y a d d a g e n e r a l p r a y e r for s u c h
further or other relief as may be d e e m e d just or
e q u i t a b l e . (3a, R6).
(d) Date. E v e r y p l e a d i n g s h a l l be d a t e d , (n)

155

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 3

NOTES
1. The p r a y e r in a pleading does not constitute an
e s s e n t i a l p a r t of t h e a l l e g a t i o n s d e t e r m i n a t i v e of t h e
j u r i s d i c t i o n of a c o u r t . T h e q u e s t i o n of j u r i s d i c t i o n
depends largely upon the determination of the t r u e n a t u r e
of t h e action filed by a p a r t y which, in t u r n , involves t h e
consideration of t h e u l t i m a t e facts alleged as constitutive
of t h e cause of action t h e r e i n (Bautista vs. Fernandez,
L-24062, April 30, 1971). The p r a y e r for relief, a l t h o u g h
p a r t of t h e complaint, c a n n o t c r e a t e a cause of action;
hence, it c a n n o t be considered as a p a r t of the allegations
on t h e n a t u r e of the cause of action (Rosales vs. Reyes, 25
Phil. 495; Cabigao vs. Lim, 50 Phil. 844).
2. The s a m e rule obtains in a majority of t h e s t a t e s
in t h e American jurisdiction which hold t h a t t h e p r a y e r
or d e m a n d for relief is not p a r t of t h e s t a t e m e n t of t h e
cause of action (Salmons vs. Sun & Bradstreet, 162 S.W.
2d 245; Central Nebraska Public Power & Irrigation Dist.
vs. Watson, et al., 299 N.W. 609; Durham vs. Rasco, 227
P. 599). The p r a y e r for relief c a n n o t be considered as
a d d i n g to t h e a l l e g a t i o n s of t h e c o m p l a i n t or p e t i t i o n
(Speizman vs. Guill, 25 S.E. 2d 731; Coke, et al. vs. Sharks,
et al., 291 S.W. 862). The p r a y e r does not e n l a r g e t h e
cause of action s t a t e d nor does it change t h e legal effects
of w h a t is alleged (Sandgren vs. West et ux., 115 P. 2d,
724; State vs. Bonham, et al., 193 S.E. 340).
A good
p r a y e r does not aid a defective pleading (Somers vs. Bank
of America, et al., 187 P. 2d 433; Villani vs. National City
Bank of New York, 256 N.Y.S., 602).
S e c . 3. Signature and address. E v e r y p l e a d i n g
must be signed by the party or counsel representing
him, stating in either case his address which should
n o t be a p o s t o f f i c e box.

156

RULE 7

PARTS OF A PLEADING

SEC. 3

The s i g n a t u r e of counsel constitutes a


certificate by him that he has read the pleading, that
to the best of his knowledge, information, and belief
t h e r e i s g o o d g r o u n d t o s u p p o r t it, a n d t h a t i t i s n o t
i n t e r p o s e d for d e l a y .
A n u n s i g n e d p l e a d i n g p r o d u c e s n o l e g a l effect.
H o w e v e r , t h e c o u r t m a y , i n its d i s c r e t i o n , a l l o w s u c h
deficiency to be remedied if it shall appear that the
same w a s d u e t o m e r e i n a d v e r t e n c e a n d not i n t e n d e d
for d e l a y .
Counsel w h o deliberately files an
unsigned pleading, or signs a pleading in violation
of this Rule, or alleges scandalous or indecent
matter therein, or fails to promptly report to the
court a c h a n g e of his address, shall be subject to
a p p r o p r i a t e d i s c i p l i n a r y a c t i o n . (5a)
NOTES
1. The S u p r e m e Court has further resolved t h a t , in
addition to t h e r e q u i r e m e n t t h a t counsel should indicate
in all pleadings, motions a n d p a p e r s submitted by him to
judicial or quasi-judicial bodies his c u r r e n t Professional
Tax Receipt (PTR) a n d IBP official receipt or Lifetime
Member N u m b e r (Bar Matter No. 287, Sept. 26, 2000), he
should f u r t h e r indicate his Roll of Attorneys Number.
All p l e a d i n g s , m o t i o n s a n d p a p e r s filed in court,
w h e t h e r personally or by mail, which do not bear counsel's
Roll of A t t o r n e y s N u m b e r may not be acted upon by the
court, without prejudice to w h a t e v e r disciplinary action
the court may t a k e a g a i n s t t h e erring counsel who shall
likewise be required to comply with the requirement within
5 d a y s from notice. F a i l u r e to comply with such
r e q u i r e m e n t shall be a ground for further disciplinary
sanction and for contempt of court (Bar Matter No. 1132,
April 1, 2003).
2. It will be noted t h a t this amended section further
specifically r e q u i r e s , u n d e r p a i n o f a d m i n i s t r a t i v e
157

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 4

d i s c i p l i n a r y a c t i o n o r e v e n a c i t a t i o n for i n d i r e c t
c o n t e m p t , t h a t counsel should p r o m p t l y r e p o r t t o t h e
court w h e r e he is a p p e a r i n g in a case any change of his
a d d r e s s . It is e l e m e n t a r y t h a t the r e q u i r e m e n t to make
of record in the court his a d d r e s s or any change thereof is
to e n s u r e his prompt receipt of judicial orders or processes;
yet, a n u m b e r of lawyers fail to report such changes in
both the trial and appellate courts resulting in unnecessary
delay in judicial a d m i n i s t r a t i o n . This situation is further
a g g r a v a t e d w h e r e even t h e a d d r e s s of t h e p a r t y is not
stated in the pleadings or it is merely averred t h a t
processes to said p a r t y may be served on his counsel.
3. No s u b s t i t u t i o n of a t t o r n e y s will be a l l o w e d
unless (a) t h e r e is a w r i t t e n r e q u e s t for such s u b s t i t u t i o n ,
(b) filed w i t h t h e w r i t t e n c o n s e n t o f t h e c l i e n t , a n d
(c) with the written consent of the attorney to be substituted,
or with proof of service of notice of said motion to t h e
a t t o r n e y to be s u b s t i t u t e d . U n l e s s t h e s e a r e complied
with, no s u b s t i t u t i o n will be p e r m i t t e d a n d t h e a t t o r n e y
who last a p p e a r e d in t h e case before such application will
be responsible for t h e conduct of t h e case (Bacarro vs. CA,
et al, L-28203, Jan. 22, 1971, citing U.S. vs. Borromeo,
20 Phil. 189; see Magpayo, et al. vs. CA, et al., L-35966,
Nov. 19, 1974; Sumadchat vs. CA, et al, G.R. No. 52197,
Jan. 30, 1982; Aban vs. Enage, L-30666, Feb. 26, 1983;
Yu, et al. vs. CA, et al, G.R. No. 56766, Feb. 28, 1985).
S e c . 4.
Verification. E x c e p t w h e n o t h e r w i s e
specifically provided by law or rule, pleadings need
not be under oath, verified or accompanied by
affidavit.
A p l e a d i n g is verified by an affidavit that the
affiant has read the pleading and that the
allegations therein are true and correct of his
personal knowledge or based on authentic records.

158

RULE 7

PARTS OF A PLEADING

SEC. 4

A p l e a d i n g required to be verified w h i c h
contains a verification based on "information and
belief," or u p o n " k n o w l e d g e , i n f o r m a t i o n a n d belief,"
or l a c k s proper verification, s h a l l be treated as
an u n s i g n e d - p l e a d i n g . ( 4 a ) (As amended in A.M.
No. 00-2-10SC, effective May 1, 2000)
NOTES
1. The second p a r a g r a p h of this section h a s been
further a m e n d e d so t h a t t h e pleader's affirmation of the
t r u t h a n d correctness of t h e allegations in his pleading
shall be based not only on his "knowledge and b e l i e f but
specifically o n h i s " p e r s o n a l k n o w l e d g e o r b a s e d o n
a u t h e n t i c records." In t h e 1964 Rules of Court, Sec. 6 of
Rule 7 required p e r s o n a l knowledge of t h e facts averred,
w h i c h w a s c o n s i d e r e d too s t r i c t s i n c e a p e r s o n c a n
reasonably affirm a fact based on his belief in its t r u t h
when t h e r e is or h a s been no other fact or reason contrary
thereto.
However, t h a t liberalized version is b e t t e r regulated
by t h e p r e s e n t a m e n d e d provisions t h a t facts should be
attested to on t h e basis of one's personal knowledge or,
especially with r e g a r d to old or vintage facts or events,
by the recitals thereof in a u t h e n t i c records. Verification
is intended to forestall allegations which are perjured or
h e a r s a y , a n d t h i s p u r p o s e is r e a s o n a b l y s u b s e r v e d by
the r e q u i r e m e n t for a u t h e n t i c documents such as official
records which a r e exceptions to t h e h e a r s a y evidence
rule. For t h e s a m e reason, a verification cannot be made
on facts obtained or arising in whole or in p a r t from mere
information and belief.
2. Verification may be made by the p a r t y , his
r e p r e s e n t a t i v e , l a w y e r o r any p e r s o n who p e r s o n a l l y
knows the t r u t h of the facts alleged in the pleading. Where
the verification is made by the attorney who also signed

159

RULE 7

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SEC. 4

the pleadings, the courts a r e inclined to be liberal and


accept s u b s t a n t i a l compliance with t h e verification rule
(Arambulo vs. Perez, 78Phil. 387;Matel vs. Rosal, 96Phil.
984 fUnrep.J; Cajefe vs. Fernandez, etc., et al, 109 Phil
743). T h u s , w h e r e a petition for m a n d a m u s w a s verified
by the counsel to be t r u e "to t h e best of (his) knowledge,
information a n d belief," it w a s held to be sufficient in
view of t h e sanctions respecting a t t o r n e y s in Sec. 5 (now,
Sec. 3) of this Rule (Guerra Enterprises, Co., Inc. vs. CFI
of Lanao del Sur, et al, L-28310, April 17, 1970).
On t h e o t h e r h a n d , a c e r t i f i c a t i o n a g a i n s t forum
s h o p p i n g (Sec. 5) m u s t be m a d e by t h e p a r t y h i m s e l f
a n d not by his l a w y e r (Santos, et al. vs. CA, et al, G.R.
No. 141947, July 3, 2001).
3. As a rule, pleadings need not be verified u n l e s s
so r e q u i r e d by t h e R u l e s a n d j u r i s p r u d e n c e , as in t h e
following i n s t a n c e s :
a.
Rule

Petition for relief from j u d g m e n t or o r d e r (Sec. 3,


38);

b. Petition for review from t h e Regional Trial Courts


to t h e Court of Appeals (Sec. 1, Rule 42);
c. Petition for review from t h e quasi-judicial agencies
to t h e C o u r t of Appeals (Sec. 5, Rule 43);
d . A p p e a l b y c e r t i o r a r i from t h e C o u r t o f T a x
A p p e a l s to t h e S u p r e m e C o u r t (Sec. 12, R.A. 9 2 8 2 ,
a m e n d i n g Sec. 19, R.A. 1125);
e. Appeal by c e r t i o r a r i from t h e Court of Appeals to
t h e S u p r e m e Court (Sec. 1, Rule 45);
f. P e t i t i o n for a n n u l m e n t of j u d g m e n t s or final
o r d e r s a n d resolutions (Sec. 1, Rule 47);
g.

Complaint for injunction

(Sec. 4, Rule 58);

h. Application for a p p o i n t m e n t of receiver (Sec. 1,


Rule 59);

160

RULE 7

i.
Rule

PARTS OF A PLEADING

SEC. 4

A p p l i c a t i o n for s u p p o r t pendente lite (Sec.


69);

1,

j.
P e t i t i o n for c e r t i o r a r i a g a i n s t t h e j u d g m e n t s ,
final o r d e r s or resolutions of constitutional commissions
(Sec. 2, Rule 64);
k.

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

1.

P e t i t i o n for prohibition (Sec. 2, Rule 65);

m. Petition for m a n d a m u s (Sec.

3, Rule 65);

n.

Petition for quo w a r r a n t o (Sec. 1, Rule 66);

o.

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

p. Complaint for forcible e n t r y or unlawful d e t a i n e r


(Sec. 4, Rule 70);
q.

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

r. P e t i t i o n for a p p o i n t m e n t of a general g u a r d i a n
(Sec. 2, Rule 93);
s. Petition for leave to sell or e n c u m b e r property of
the w a r d by a g u a r d i a n (Sec. 1, Rule 95);
t. P e t i t i o n for t h e d e c l a r a t i o n of competency of a
ward (Sec. 1, Rule 97);
u.

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

v.

Petition for change of n a m e (Sec. 2, Rule 103);

w. P e t i t i o n for v o l u n t a r y judicial dissolution of a


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

161

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Rule

REMEDIAL LAW COMPENDIUM

SEC. 4

c. Motion to s e t aside a default o r d e r (Sec. 3[bJ,


9).
d. Answer to w r i t t e n interrogatories (Sec. 2, Rule 25);

and
e. Answer to r e q u e s t for admission (Sec. 2, Rule 26).
5. Supporting affidavits
required in t h e following:

or

affidavits

of merits

are

a . M o t i o n t o p o s t p o n e for a b s e n c e o f e v i d e n c e
(Sec. 3, Rule 30);
b. Motion to postpone for illness of a p a r t y or counsel
(Sec. 4, Rule 30);
c. M o t i o n for s u m m a r y j u d g m e n t o r o p p o s i t i o n
t h e r e t o (Sees. 1, 2, 3 a n d 5, Rule 35);
d. M o t i o n for n e w t r i a l on t h e g r o u n d of f r a u d ,
accident, m i s t a k e or excusable negligence or opposition
t h e r e t o (Sec. 2, Rule 37);
e.
Rule
f.

Petition for relief from j u d g m e n t or o r d e r (Sec. 3,


38);
T h i r d - p a r t y claim (See. 16, Rule 39);

g. P r o o f r e q u i r e d of a r e d e m p t i o n e r (Sec.
Rule 39);
Rule

h. M o t i o n for p r e l i m i n a r y a t t a c h m e n t (Sec.
57);

30,
3,

i. Motion for dissolution of p r e l i m i n a r y injunction


(Sec. 6, Rule 58);
j.

Application for a w r i t of replevin (Sec. 2, Rule 60);

k. Claim a g a i n s t t h e e s t a t e of a d e c e d e n t (Sec. 9,
Rule 86); a n d
1. Motion for new t r i a l on t h e ground of newlydiscovered evidence in criminal cases (Sec. 4, Rule 121).
6. E v e n w h e r e verification is r e q u i r e d by t h e Rules,
t h e court m a y give due course to t h e p l e a d i n g even if
162

RULE 7

PARTS OF A PLEADING

SEC. 5

such verification is lacking or is insufficient or defective


if the circumstances warrant the relaxation or dispensing
of the rule in the interest of justice (Oshita vs. Republic,
L-21180, Mar. 31, 1967; cf. Quimpo vs. Dela Victoria,
L 31822, July 31, 1972; Valino vs. Munoz, et al., L-26151,
Oct. 22, 1970; Villasanta, et al. vs. Bautista, et al.,
L-30874, Nov. 26, 1970). Verification of a pleading is a
formal, not a jurisdictional, requisite (Buenaventura vs.
Uy, et al., L-28156, Mar. 31, 1987). It is simply intended
to secure an assurance that the allegations are true and
correct and that the pleading is filed in good faith (Bank
of the Phil. Islands vs. CA, et al., G.R. No. 146923,
April 30, 2003). Hence, in the interest of substantial
justice, the Court may simply order the correction of the
unverified pleading or act on it and waive strict compliance
with the rules (Vda. de Gabriel vs. CA, et al., G.R. No.
103883, Nov. 14, 1996; Panaguiton, Jr. vs. Dept. of
Justice, et al., G.R. No. 167571, Nov. 25, 2008).
7. Pleadings filed in the inferior courts in cases
covered by the Rule on Summary Procedure are all required to be verified (Sec. 2[BJ on Civil Cases).
S e c . 6.
Certification against forum shopping. T h e
plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading
a s s e r t i n g a c l a i m for relief, or in a s w o r n
certification annexed thereto and simultaneously
f i l e d t h e r e w i t h : (a) t h a t h e h a s n o t t h e r e t o f o r e
c o m m e n c e d a n y a c t i o n o r filed a n y c l a i m i n v o l v i n g
the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge,
no such other action or claim is pending therein;
(b) if t h e r e is s u c h o t h e r p e n d i n g a c t i o n or c l a i m , a
c o m p l e t e s t a t e m e n t o f t h e p r e s e n t s t a t u s thereof;
a n d (c) i f h e s h o u l d t h e r e a f t e r l e a r n t h a t t h e s a m e
or similar action or claim has been filed or is
p e n d i n g , h e s h a l l r e p o r t t h a t fact w i t h i n five (5) d a y s
163

RULE 5

REMEDIAL LAW COMPENDIUM

SEC. 2

therefrom to the court wherein his aforesaid


c o m p l a i n t o r i n i t i a t o r y p l e a d i n g h a s b e e n filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall
b e c a u s e for t h e d i s m i s s a l o f t h e c a s e w i t h o u t
prejudice, unless otherwise provided, upon motion
and after hearing. The s u b m i s s i o n of a false
certification or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal actions.
If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping,
t h e s a m e s h a l l b e g r o u n d for s u m m a r y d i s m i s s a l w i t h
prejudice and shall constitute direct contempt, as
w e l l a s a c a u s e for a d m i n i s t r a t i v e s a n c t i o n s , (n)
NOTES
1. The S u p r e m e Court h a s explained t h a t t h e r e is
forum shopping when, as a r e s u l t of an a d v e r s e decision
in one forum, or in anticipation thereof, a p a r t y s e e k s a
favorable opinion in a n o t h e r forum t h r o u g h m e a n s o t h e r
t h a n a p p e a l or c e r t i o r a r i by r a i s i n g identical c a u s e s of
action, s u b j e c t - m a t t e r a n d issues. ' T o r u m shopping exists
w h e n two or more actions involve t h e s a m e t r a n s a c t i o n s ,
e s s e n t i a l facts a n d c i r c u m s t a n c e s , a n d r a i s e i d e n t i c a l
c a u s e s o f action, s u b j e c t - m a t t e r a n d i s s u e s . A n o t h e r
i n d i c a t i o n is w h e n t h e e l e m e n t s of litis pendentia a r e
p r e s e n t o r w h e r e a f i n a l j u d g m e n t i n o n e c a s e will
a m o u n t to res judicata in t h e o t h e r case. T h e t e s t is
w h e t h e r in t h e two or more p e n d i n g cases t h e r e is identity
of p a r t i e s , r i g h t s or c a u s e s of action a n d reliefs s o u g h t
(Ligon vs. CA, et al, G.R. No. 127683, Aug. 7, 1998; cf.
Melo, et al. vs. CA, et al, G.R. No. 123686, Nov. 16, 1999).

164

RULE 7

PARTS OF A PLEADING

SEC. 5

Forum shopping is condemned because it duly


b u r d e n s courts w i t h heavy caseloads, unduly taxes t h e
m a n p o w e r a n d financial resources of t h e judiciary, and
trifles with and mocks judicial processes. The primary evil
sought to be prescribed by t h e prohibition against forum
shopping, however, is the possibility of conflicting decisions
being r e n d e r e d by t h e different c o u r t s upon t h e s a m e
issues (Guy vs. CA, et al., G.R. No. 165849, Dec. 10, 2007,
and companion cases).
2. This section, w i t h modifications, is t a k e n from
Administrative Circular No. 04-94 issued by the S u p r e m e
C o u r t on F e b r u a r y 8, 1994 for t h e p u r p o s e e x p l a i n e d
therein:
"Revised Circular No. 28-91, dated F e b r u a r y 8,
1994 applies to a n d governs t h e filing of petitions in
t h e S u p r e m e Court and t h e Court of Appeals and is
intended to p r e v e n t t h e multiple filing of petitions or
complaints involving the same issues in other
t r i b u n a l s or agencies as a form of forum shopping.
"Complementary t h e r e t o and for t h e same purpose, t h e following r e q u i r e m e n t s , in addition to those
in p e r t i n e n t provisions of t h e Rules of C o u r t a n d
existing circulars, shall be strictly complied with in
t h e filing of c o m p l a i n t s , p e t i t i o n s , applications or
o t h e r initiatory pleadings in all courts and agencies
other t h a n the Supreme Court and the Court of
Appeals and shall be subject to the sanctions provided
hereunder."
The provisions of Revised Circular No. 28-91 have
been adopted and incorporated in Rules 42, 43, 45, 46,
47, 64 and 65.
3. The S u p r e m e Court has advanced the rule t h a t
compulsory c o u n t e r c l a i m s a r e not c o n t e m p l a t e d in its
Administrative Circular No. 04-94 which refers to initiatory
and similar pleadings. A compulsory counterclaim set up
16B

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 5

in t h e a n s w e r s should not be considered as an initiatory


or s i m i l a r p l e a d i n g since t h e d e f e n d a n t h a s to raise a
compulsory counterclaim where proper, otherwise he
waives t h e s a m e . The rationale is t h a t t h e compulsory
counterclaim is only a reaction or response, m a n d a t o r y
u n d e r p a i n of waiver, to an initiatory pleading which is
the complaint (Cruz-Agana vs. Santiago-Logman, etc., et
al., G.R. No. 139018, April 11, 2005). There are American
doctrines, however, holding t h a t any counterclaim is in the
n a t u r e of a counter-complaint or cross-petition; hence, under
t h a t theory it is actually initiatory of a claim for relief discrete
from the adverse party's claim.
4 . Aside from some a m e n d m e n t s t o t h e o r i g i n a l
sanctions imposed in A d m i n i s t r a t i v e Circular No. 04-94,
this section r e i t e r a t e s as a r e g u l a r r e q u i r e m e n t u n d e r t h e
Rules t h a t t h e certification a g a i n s t forum shopping may
be incorporated in t h e complaint or contained in a sworn
certification a n n e x e d t h e r e t o a n d s i m u l t a n e o u s l y filed
t h e r e w i t h . T h i s e n u n c i a t e s t h e policy of t h e S u p r e m e
C o u r t e x p r e s s e d a s e a r l y a s C i r c u l a r N o . 1-88 t h a t
s u b s e q u e n t c o m p l i a n c e w i t h t h e r e q u i r e m e n t s for t h e
filing of p e t i t i o n s or motions is not a ground for reconsid e r a t i o n of t h e d i s m i s s a l of said p l e a d i n g s , except for
compelling r e a s o n s . In light hereof, t h e view t h a t belated
filing of t h e certification m a y be d e e m e d a s u b s t a n t i a l
compliance should no longer be s u s t a i n e d .
With respect to the contents of the certification
which t h e p l e a d e r may p r e p a r e , t h e rule of s u b s t a n t i a l
compliance m a y be availed of. While t h i s section r e q u i r e s
t h a t it be strictly complied with, it merely u n d e r s c o r e s
its m a n d a t o r y n a t u r e in t h a t it cannot be altogether
dispensed with or its r e q u i r e m e n t s completely disregarded
b u t it does not t h e r e b y p r e v e n t s u b s t a n t i a l compliance on
this aspect of its provisions u n d e r justifiable circumstances
(see Gabionza vs. CA, et al, G.R. No. 112547, July 18,
1994).
This certification on non-forum s h o p p i n g
was designed to promote and facilitate the orderly
166

RULE 7

PARTS OF A PLEADING

SEC. 5

a d m i n i s t r a t i o n of justice and, therefore, should not be


i n t e r p r e t e d with absolute literalness (Loyola us. CA, et
al., G.R. No. 117186, June 29, 1995; Maricalum Mining
Corp. us. NLRC, et al., G.R. No. 124711, Nou. 3, 1998;
RLC Construction and Deu. Corp., et al. us. Emily Homes,
etc., et al., G.R. No. 139360, Sept. 23, 2003).
More importantly, this section specifically s t a t e s t h a t
the "(f)ailure to comply with the foregoing r e q u i r e m e n t s
shall not be curable by mere a m e n d m e n t of the complaint
or o t h e r i n i t i a t o r y p l e a d i n g but shall be cause for t h e
dismissal of t h e case without prejudice, unless otherwise
provided, upon motion a n d after h e a r i n g . " T h i s will
obviate the former practice of some trial courts in allowing
a m e n d m e n t of the incomplete pleading for the incorporation t h e r e i n of the certificate a g a i n s t forum shopping.
That was erroneous since this u n d e r t a k i n g against
multiple filing of cases is not p a r t of the operative facts
required to be alleged in an initiatory pleading, such as
allegations on the cause of action. It is a special requirement for admission of the initiatory pleading for filing in
court, hence the absence thereof is not curable by mere
amendment.
Instead, the case shall be dismissed on motion but,
just like the practice u n d e r Revised Circular No. 28-91 in
t h e a p p e l l a t e c o u r t s , such d i s m i s s a l shall be w i t h o u t
prejudice. This more liberal rule is distinguishable from
the effects of dismissal of t h e case for non-compliance
with the Rules u n d e r the provisions of Sec. 3, Rule 17
which p r e s u p p o s e s t h e pendency of t h e case, w h e r e a s
what is contemplated in this section is the initiation of
the case. The case may consequently be refiled within
the balance of t h e r e g l e m e n t a r y period but subject to
the provisions on prescription of actions.
5. In applying t h e forerunner of this section, the
S u p r e m e C o u r t , in t h e c a s e of Fil-Estate Golf and
Development, Inc. us. CA, et al. (G.R. No. 1 2 0 9 5 8 ,
Dec. 16, 1996), ruled as follows:
167

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 5

"As clearly demonstrated above, the willful a t t e m p t


by p r i v a t e r e s p o n d e n t s to o b t a i n a p r e l i m i n a r y
injunction in a n o t h e r court after it failed to acquire
the s a m e from the original court c o n s t i t u t e s grave
a b u s e of t h e j u d i c i a l p r o c e s s . S u c h d i s r e s p e c t is
penalized by the s u m m a r y dismissal of both actions
as m a n d a t e d by p a r a g r a p h 17 of the I n t e r i m Rules
and Guidelines issued by this Court on 11 J a n u a r y
1983 and S u p r e m e Court Circular No. 28-91. x x x.
X

The rule against forum-shopping is further


s t r e n g t h e n e d by the issuance of S u p r e m e Court
C i r c u l a r No. 04-94.
Said c i r c u l a r formally e s t a blished t h e rule t h a t t h e deliberate filing of multiple
c o m p l a i n t s t o o b t a i n favorable a c t i o n c o n s t i t u t e s
forum-shopping and shall be a ground for s u m m a r y
dismissal thereof."
6. As earlier stated, with respect to t h e c o n t e n t s of
t h e c e r t i f i c a t i o n of n o n - f o r u m s h o p p i n g , t h e r u l e of
s u b s t a n t i a l compliance may be invoked u n d e r justifiable
circumstances. However, it is mandatory that the
certification be executed by the petitioner himself, and
not by counsel. Obviously, it is the petitioner, and not
t h e counsel r e t a i n e d for a p a r t i c u l a r case, who is in the
best position to personally know w h e t h e r he or it had
actually filed or caused the filing of a n o t h e r or previous
petition involving the same case or s u b s t a n t i a l l y the s a m e
i s s u e s . H e n c e , a certification e x e c u t e d by c o u n s e l is
defective and c o n s t i t u t e s a valid cause for dismissal of
the petition (Far Eastern Shipping Co. us. CA, et a I., G.R.
No. 130068, and Manila Pilots Association vs. Phil. Ports
Authority, et al., G.R. No. 130150, j o i n t l y decided on
Oct. 1, 1998; cf. Commissioner of Internal Revenue vs.
S.C. Johnson & Son, Inc., et al., G.R. No. 127105,
June 25,
1999; Mendigorin vs. Cabantog, etc., G.R.
No. 136449, Aug. 22, 2002).

168

RULE 7

PARTS OF A PLEADING

SEC. 5

7. On the foregoing premises, where there are


several petitioners, it is not sufficient that only one of
them executes the certification, absent a showing that
he was so authorized by the others. That certification
requires personal knowledge and it cannot be presumed
that the signatory knew that his co-petitioners had the
same or similar actions filed or pending (Loquias, et al
vs. Office of the Ombudsman, et al., G.R. No. 139396,
Aug. 15, 2000). Where, however, the co-petitioners are
husband and wife with joint interest in the subject
matter of the case which is their conjugal property, the
husband alone as administrator of said property can
execute the certification (Docena, et al. vs. Lapesura, etc.,
et al., G.R. No. NO 153, Mar. 28, 2001). Also, where all
the petitioners, being relatives and co-owners of the
properties in dispute, share a common interest therein
and a common defense in the action, one of them alone can
execute the certificate of non-forum shopping (Cavile,
et al. vs. Cavile, et al., G.R. No. 148635, April 1, 2003).
8. This requirement is intended to apply to both
natural and juridical persons. Where the petitioner is a
corporation, the certification against forum shopping
should be signed by its duly authorized director or
representative. The same is true with respect to any
juridical entity since it has of necessity the proper
officer to represent it in its other transactions (Digital
Microwave Corp. vs. CA, et al, G.R. No. 128550, Mar. 16,
2000).
In National Steel Corp. vs. CA, et al. (G.R.
No. 134468, Aug. 29, 2002), the rule was liberally
applied pro hoc vice "in view of the peculiar circumstances
of the case and in the interest of substantial justice."
However, in BA Savings Bank vs. Sia, et al. (G.R.
No. 131214, July 27, 2000), it was held that the
certification of non-forum shopping may be signed, for and
on behalf of a corporation, by a specifically authorized
lawyer who has personal knowledge of the facts required
to be disclosed in such document. This does not mean,
169

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 5

though, t h a t any lawyer representing the corporation may


routinely sign t h a t certification. T h a t lawyer m u s t be
specifically auOwrized in order to validly sign t h e s a m e .
F u r t h e r , while said counsel may be t h e counsel of record;
t h e r e m u s t be a resolution of the board of directors t h a t
specifically a u t h o r i z e s him to file the action and execute
the certification (BPI Leasing Corp. vs. CA, et al., G.R.
No. 127624, Nov. 18, 2003).
9. If a case is dismissed without prejudice because
of the filing by t h e plaintiff of a notice or dismissal before
the service of t h e a n s w e r or responsive pleading p u r s u a n t
to Sec. 1, Rule 17, the s u b s e q u e n t refiling of the case by
the same p a r t y will not require a certification of non-forum
shopping s e t t i n g forth such a n t e c e d e n t facts.
As already stated, forum shopping is resorted to by a
p a r t y with a case in one forum in order to possibly secure
a favorable j u d g m e n t in a n o t h e r forum, o t h e r t h a n by
a p p e a l or c e r t i o r a r i , or t h e i n s t i t u t i o n of two or more
actions or proceedings on the same cause, on the
s u p p o s i t i o n t h a t one or t h e o t h e r c o u r t would m a k e a
favorable d i s p o s i t i o n . Since a p a r t y r e s o r t s to forum
shopping to improve his chances of obtaining a favorable
decision, t h a t prohibition could not apply to a s i t u a t i o n
c o n t e m p l a t e d in Sec. 1, Rule 17. T h e r e is no a d v e r s e
decision a g a i n s t the plaintiff and t h e order of dismissal
merely confirms t h e dismissal of t h e complaint w i t h o u t
prejudice. The a p p r e h e n s i o n t h a t t h e case was dismissed
in o r d e r to be t r a n s f e r r e d to t h e sala of a n o t h e r j u d g e
supposedly more s y m p a t h e t i c to t h e plaintiff is baseless
and speculative (Roxas vs. CA, et al., G.R. No. 139337,
Aug. 15, 2001).
10. This section provides for
be contained in t h e certification
in the complaint or initiatory
R e g i o n a l T r i a l C o u r t . Sec. 3,

170

t h e m a t t e r s t h a t should
a g a i n s t forum shopping
p l e a d i n g s filed i n t h e
Rule 46 p r e s c r i b e s t h e

r e q u i r e m e n t s for a certification against forum shopping


in petitions filed in the Court of Appeals, which have also
been adopted for petitions filed in the S u p r e m e Court,
p u r s u a n t to Sec. 2, Rule 56.
11. As a goneraLjttle-, t h e violation of t h e rule-on
f o r u m H6hofHHig ohoulabe- r a i s e d a t t h e e a * l i e s t
opportunity^ eueh- *a-a-motion to dismiss or a similar
pleading. It should be noted t h a t Sec. 1, Rule 9 provides
t h a t defenses and objections not pleaded in a motion to
dismiss or in an a n s w e r are deemed waived. Also, Sec. 8,
Rule 15 s t a t e s t h a t , subject to t h e provisions of said
Sec. 1, Rule 9, a motion a t t a c k i n g a p l e a d i n g , order,
j u d g m e n t or proceeding shall include all objections t h e n
available, and all objections not so included are deemed
waived.
T h u s , -belatedly raising, an.objection due to forum
shopping at the-appellate stage will not cause t h e dismissal
of t h e appeal, except w h e r e t h e court h a s no jurisdiction
over t h e s u b j e c t m a t t e r , or w h e r e litis pendentia, res
judicata or b a r by s t a t u t e of limitations are present (Young
vs. Seng, etc., G.R. No. 143464, Mar. 5, 2003).
12. The doctrine of forum non conveniens literally
means "the forum is inconvenient," and emerged in private
i n t e r n a t i o n a l law to d e t e r the practice of global forum
shopping, t h a t is, to p r e v e n t nonresident litigants from
choosing the forum or place to bring their suit for malicious
reasons, to secure procedural advantages, or to select a
more friendly venue. The court, may, however, refuse
impositions on its jurisdiction where it is not the most
convenient forum and the p a r t i e s are not precluded from
seeking remedies elsewhere.
W h e t h e r a suit should be e n t e r t a i n e d or dismissed
under this doctrine depends largely on the facts of the
particular case and is addressed to the sound discretion of
the t r i a l c o u r t . T h e S u p r e m e C o u r t h a s held t h a t a

171

RULE 7

REMEDIAL LAW COMPENDIUM

SEC. 5

Philippine court may assume jurisdiction over a conflict


of laws case, if it chooses to do so, provided t h a t it is one to
which the p a r t i e s may conveniently resort, t h a t it is in a
position to make an intelligent decision on the law and
the facts, and t h a t it has or is likely to have t h e power to
enforce its decision. However, while it h a s t h e discretion
to a b s t a i n from a s s u m i n g jurisdiction u n d e r t h e doctrine,
it should do so only after vital facts a r e established to
d e t e r m i n e w h e t h e r special c i r c u m s t a n c e s r e q u i r e t h e
court's desistance.
Since this doctrine requires such a factual determination, it is more properly considered a m a t t e r of defense.
It should not be used as a ground for a motion to dismiss,
and, in fact, Rule 16 does not include said doctrine as a
g r o u n d . In any e v e n t , s u c h a claim of global forum
s h o p p i n g s h o u l d r e q u i r e t h a t a l l e l e m e n t s o f litis
pendentia a r e p r e s e n t and a final j u d g m e n t in one case
will a m o u n t to res judicata in the other (Bank of America
NT & SA, et. al. vs. CA, et al., G.R. No. 120435,
Mar. 31, 2003). Apropos t h e r e t o , this equitable doctrine
p r e s u p p o s e s at least two forums in which t h e d e f e n d a n t is
a m e n a b l e to p r o c e s s a n d f u r n i s h e s c r i t e r i a for choice
b e t w e e n s u c h f o r u m s (Wilson vs. Seas Shipping Co.,
D.C.Pa., 78 F. Supp. 464).

172

RULE 8
M A N N E R OF MAKING ALLEGATIONS
IN PLEADINGS
S e c t i o n 1. In general. E v e r y p l e a d i n g s h a l l
c o n t a i n in a m e t h o d i c a l a n d l o g i c a l form, a p l a i n ,
c o n c i s e a n d d i r e o t ^ e t a t e m e n t o f t h e u l t i m a t e facts
o n w h i c h t h e p a r t y p l e a d i n g r e l i e s for h i s c l a i m o r
defense, as the case m a y be, o m i t t i n g t h e s t a t e m e n t
o f m e r e e v i d e n t i a r y f a c t s . (1)
hi a d e f e n s e r e l i e d o n i s b a s e d o n l a w , t h e
pertinent provisions thereof and their applicability
t o h i m s h a l l - b e c l e a r l y a n d c o n c i s e l y s t a t e d , (n)
NOTES
1. As already stated, an^nexes to--pleadings, -are
considered p a r t of t h e pleadings, but the said pleadings
m u s t c o n t a i n - a s u m m a r y s t a t e m e n t of t h e matters
contained in t h e a n n e x and c a n n o t j u s t refer to the same
(Rubios, et al. vs. Reolo, 96 Phil. 984fUnrep.J; La Mallorca
vs. CA, et al., 100 Phil. 1048; see Sec. 7 of this Rule).
2. "Ultimate facte" are the important and substantial facts which either directly form the basis of the
plaintiff's primary right and duty or directly make up
the wrongful acts or omissions of the defendant (Alsua
us. Johnson, 21 Phil. 308). A fact is essential if it cannot
be stricken out without leaving the statement of the
cause of action or defense insufficient (Toribio, et al. vs.
Bid in, etc., et al, G.R. No. 57821, Jan. 17, 1985). Hence,
conclusions, inferences, presumptions, and details of
probative matters should not be alleged.
. <t\-

3. "Evidentiary facts" are those which are necessary


to prove the ultimate fact or which furnish evidence of
the existence of some other facts. They are not proper as
173

RULE 8

REMEDIAL LAW COMPENDIUM

SECS. 2-3

allegations in the pleadings as they may only result in


confusing the statement of the cause of action or the
defense. They are not necessary therefor, and their
exposition is actually premature as such facts must be
found and drawn from testimonial and other evidence.
4. The second paragraph is a new provision and is
in line with the rule that a party must set out with
clarity right in his pleading the matters upon which he
intends to rely for his defense. It has been a matter of
judicial experience that often a defense is postulated
supposedly upon certain provisions of law and, with such
bare allegation, the pleader leaves it to the court and the
opposing party to divine for themselves how said legal
provisions or principles could possibly apply or relate to
the nature of the defense invoked, a strategy made more
irksome and undesirable where several defenses and legal
provisions are invoked. The rationale for this new
requirement where the defense is based on legal grounds
is the same as the requirement for stating the ultimate
facts where the defense is based on factual grounds.
S e c . 2.
Alternative causes of action or defenses.
A p a r t y m a y set forth t w o or m o r e s t a t e m e n t s of a
claim or defense alternatively or hypothetically,
either in one cause of action or defense or in
separate causes of action or defenses.
When two
or more statements are made in the alternative and
one of t h e m if made i n d e p e n d e n t l y would be
sufficient, t h e p l e a d i n g is not m a d e insufficient by
the insufficiency of one or m o r e of the alternative
s t a t e m e n t s . (2)
S e c . 3. Conditions precedent. In a n y p l e a d i n g
a general a v e r m e n t of the p e r f o r m a n c e or occurr e n c e of all c o n d i t i o n s p r e c e d e n t shall be sufficient.
(3)

174

RULE 8

MANNER OF MAKING ALLEGATIONS


IN PLEADINGS

SECS 4 5

S e c . 4. Capacity. F a c t s s h o w i n g t h e c a p a c i t y
of a p a r t y to s u e or be s u e d or t h e a u t h o r i t y of a
party to s u e or be s u e d in a r e p r e s e n t a t i v e c a p a c i t y
or the legal existence of an organized association
of p e r s o n s t h a t is m a d e a party, m u s t be a v e r r e d .
A party d e s i r i n g to raise an issue as to the legal
existence of any party or the capacity of any party
to s u e or be s u e d in a r e p r e s e n t a t i v e c a p a c i t y , s h a l l
do so by specific denial, which shall include such
s u p p o r t i n g p a r t i c u l a r s a s are p e c u l i a r l y w i t h i n t h e
p l e a d e r ' s k n o w l e d g e . (4)
NOTE
1. Where the plaintiffs are foreign corporations,
the specific circumstance t h a t they are duly licensed to do
business in the Philippines, or t h a t the transaction sued
upon is singular and isolated, is an essential p a r t of the
e l e m e n t of t h e plaintiff's capacity to sue and m u s t be
affirmatively pleaded as required by Sec. 4 of this Rule
(Atlantic Mutual Insurance Co.
us. Cebu Stevedoring
Co., Inc., L-18961, Aug. 31, 1966).
S e c . 5. Fraud, mistake, condition of the mind. In
all a v e r m e n t s of fraud-or m i s t a k e , the c i r c u m s t a n c e s
c o n s t i t u t i n g fraud o r m i s t a k e m u s t be staged w i t h
partieulanty. Malice, intent, knowledge or other
c o n d i t i o n of t h e m i n d of a p e r s o n m a y be a v e r r e d
g e n e r a l l y . (5a)
NOTE
1. F a c t s c o n s t i t u t i n g condition of t h e mind a r e
permitted to be averred generally as it would be difficult
to do so with particularity. However, fraud and mistake
are required to be averred with particularity in order to
enable the opposing party to controvert the p a r t i c u l a r
facta allegedly constituting the same. This requirement
175

RULE 8

REMEDIAL LAW COMPENDIUM

SECS. 6. 7-8

assumes significance in motions for new trial or


petitions for relief from judgment or order based on
fraud or mistake.
S e c . 6. Judgment. In p l e a d i n g a j u d g m e n t or
decision of a d o m e s t i c or foreign court, judicial or
q u a s i - j u d i c i a l t r i b u n a l , o r o f a b o a r d o r officer, i t i s
sufficient to aver the j u d g m e n t or decision w i t h o u t
setting forth m a t t e r showing jurisdiction to r e n d e r
it. (6)
NOTE
1. This provision is a necessary consequence of the
disputable presumption that a court, or judge acting as
such, whether in the Philippines or elsewhere, was
acting in the lawful exercise of his jurisdiction (Sec. 3(n],
Rule 131). Such judicial record may be impeached by
evidence of want of jurisdiction in the court or judicial
officer (Sec. 29, Rule 132).
S e c . 7. Action or defense based on document.
W h e n e v e r an action or defense is based upon a
written instrument or document, the substance of
such i n s t r u m e n t or d o c u m e n t shall be set forth in
the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit, which
shall be d e e m e d to be a p a r t of the pleading, or said
c o p y m a y w i t h l i k e effect b e s e t f o r t h i n t h e p l e a d i n g .
(7)
S e c . 8. How to contest such documents. W h e r e
an action or defense is founded u p o n a w r i t t e n
instrument, copied in or attached to the
corresponding pleading as provided in the
preceding section, the genuineness and due
execution of the instrument shall be deemed

176

RULE 8

MANNER OF MAKING ALLEGATIONS


IN PLEADINGS

SECS. 7-8

a d m i t t e d nwleag. t h e a d ^ w u e p a i i y - w ^ d e r - ^ a t h ,
s p e c i f i c a l l y de-mea t k m , a n d uviv furfch w h a t h e
c l a i m s to Ja-the ~aets;^but t h e r e q u i r e m e n t of an
oath does not apply w h e n the adverse party does
not a p p e a r to be a p a r t y to t h e i n s t r u m e n t or w h e n
c o m p l i a n c e w i t h a n o r d e r for a n i n s p e c t i o n o f t h e
o r i g i n a l i n s t r u m e n t i s r e f u s e d . (8a)
4

NOTES
1. These two sections constitute the rule on actionable documents, as distinguished from evidentiary
documents. There are two permissible ways of pleading
an actionable document, i.e., (a) by setting forth the
substance of such document in the pleading and
attaching the document thereto as an annex, or (b) by
setting forth said document verbatim in the pleading.
Unless alleged in any of these modes, the rule on implied
admission in Sec. 8 will not apply.
2. A variance in the substance of the document set
forth in the pleading and the document annexed thereto
does not warrant the dismissal of the action (Convets,
Inc. us. National Deuelopment Co., 103 Phil 46). However,
the contents of the document annexed are controlling.
3. Where the actionable document is properly
alleged, the failure to deny the same results in the
admission of the "genuineness and due execution" of said
document, except (a) when the adverse party was not a
party to the instrument, and (b) when an order for the
inspection of the document (see Rule 27) was not complied
with.
4. By "geHuiwencoc" is meant that the document is
not spurious, counterfeit, or of different import on its
face from the one executed hy the party (Bough vs.
Cantiveros, 40 Phil. 208), or that the party whose signature it bears has signed it and that at the time it was
177

RULE 8

REMEDIAL LAW COMPENDIUM

SECS. 7-8

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


the pleadings (Hibberd vs. Rhode, 32 Phil. 476).
5. By "due-execution" is m e a n t t h a t the document
was signed voluntarily and knowingly by t h e p a r t y whose
s i g n a t u r e a p p e a r s t h e r e o n , t h a t if signed by somebody
else such r e p r e s e n t a t i v e had the a u t h o r i t y to do so, t h a t
i t w a s duly d e l i v e r e d , a n d t h a t t h e f o r m a l i t i e s w e r e
complied with (see Hibberd vs. Rhode, supra; Ramirez
vs. Orientalist Co., et al., 38 Phil. 634).
6. By t h e a d m i s s i o n of t h e g e n u i n e n e s s a n d due
execution of a document, such defenses as t h a t the sign a t u r e was a forgery; or t h a t it was u n a u t h o r i z e d in t h e
case of an a g e n t signing in behalf of a p a r t n e r s h i p or of
a c o r p o r a t i o n ; or t h a t , in t h e c a s e of t h e l a t t e r , t h e
corporation was not authorized u n d e r its c h a r t e r to sign
t h e i n s t r u m e n t ; o r t h a t t h e p a r t y c h a r g e d signed t h e
i n s t r u m e n t in some o t h e r capacity t h a n t h a t alleged in
the pleading s e t t i n g it out; or t h a t it was never delivered,
are deemed cut off. But t h e failure to deny the genuineness a n d due execution of t h e d o c u m e n t does not estop
a p a r t y from controverting it by evidence of fraud, mistake,
compromise, p a y m e n t , s t a t u t e of limitations, estoppel, and
w a n t of consideration (1 Martin 301, citing Hibberd vs.
Rhode, supra, and Bough vs. Cantiveros, supra).
7. E v e n w h e r e t h e opposing p a r t y failed to deny
under oath the authenticity and due execution of an
actionable d o c u m e n t properly alleged, he can still raise
t h e defense i n his a n s w e r a n d prove a t t h e t r i a l t h a t
t h e r e is a m i s t a k e or imperfection in t h e writing, or t h a t
it does not e x p r e s s the t r u e a g r e e m e n t of t h e p a r t i e s , or
t h a t t h e a g r e e m e n t is invalid or t h a t t h e r e is an intrinsic
ambiguity in t h e writing, as these exceptions to the parol
evidence rule (Sec. 9, Rule 130) a r e not cut off by, since
they a r e not inconsistent with, the implied admission of
t h e a u t h e n t i c i t y and due execution of the i n s t r u m e n t .

178

RULE 8

MANNER OF MAKING ALLEGATIONS


IN PLEADINGS

SEC 9

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


claimed b y plaintiffs a s t h e i r h e r e d i t a r y s h a r e s , defendants in t h e i r a n s w e r a t t a c h e d , by way of defense,
copies of t h e d e e d s of sale allegedly e x e c u t e d by
plaintiffs in favor of their brother over their s h a r e s in said
parcel of land, and a copy of the deed of sale thereafter
executed by said vendee in favor of the defendants. Said
original deeds of sale and the s u b s e q u e n t deed of sale in
favor of t h e defendants a r e actionable documents as they
constitute t h e i r defense to the action. P u r s u a n t to Sees. 7
and 8 of Rule 8, the-ewjthenticity and due execution of
said d e e d s of sale a r e impliedly a d m i t t e d by plaintiffs for
failure on t h e i r p a r t to file a reply u n d e r oath specifically
denying t h e s a m e . This implied admission, however, does
not apply to t h e o t h e r plaintiffs who are the heirs of one
of t h e (deceased) original v e n d o r s since they were not
p a r t i e s to the documents. F u r t h e r m o r e , it a p p e a r s t h a t
in their verified complaint, the plaintiffs alleged t h a t they
never sold t h e i r h e r e d i t a r y s h a r e s and, consequently, the
defendants were a w a r e t h a t they would be called upon to
establish the genuineness and due execution of said deeds
of sale. Accordingly, t h e S u p r e m e Court relieved the
plaintiffs of t h e effects of t h e i r implied a d m i s s i o n in
the i n t e r e s t of justice (Toribio, et al. us. Bidin, etc., et al.,
G.R. No. 57821, Jan. 17, 1985).
9. Where t h e case had been tried in disregard of the
rule on actionable documents and plaintiff presented oral
evidence to prove a u t h e n t i c i t y and due execution, and
failed to object to defendant's evidence in refutation, the
rule is deemed waived (Yu Chuck us. Kong Li Po, 46 Phil.
608), especially where both p a r t i e s acted in disregard of
or overlooked t h e rule at t h e t r i a l (Central Surety &
Insurance Co. us. Hodges, L-28633, Mar. 30, 1971).
S e c . 9. Official document or act. In p l e a d i n g an
official d o c u m e n t o r official a c t i t i s s u f f i c i e n t t o

179

RULE 8

REMEDIAL LAW COMPENDIUM

SEC. 10

aver that the document was issued or the act done


in c o m p l i a n c e w i t h law. (9)
S e c . 10. Specific denial. A d e f e n d a n t m u s t
s p e c i f y e a c h m a t e r i a l a l l e g a t i o n o f fact t h e t r u t h
of which he does not admit and, w h e n e v e r pract i c a b l e , s h a l l s e t forth t h e s u b s t a n c e o f t h e m a t t e r s
upon which he relies to support his denial. Where
a d e f e n d a n t d e s i r e s to d e n y o n l y a part of an
averment, he shall specify so m u c h of it as is true
and material and shall deny the remainder. Where
a d e f e n d a n t is w i t h o u t k n o w l e d g e or information
s u f f i c i e n t to form a b e l i e f as to t h e t r u t h of a m a t e r i a l
averment made in the complaint, he shall so state,
a n d t h i s s h a l l h a v e t h e e f f e c t of a d e n i a l . (10a)
NOTES
1. There are two ways of making a specific denial,
i.e., (a) by specifically denying the averment and,
whenever possible, setting forth the substance of the
matters relied upon for such denial; and (b) by an
allegation of lack of knowledge or information sufficient
to form a belief as to the truth of the averment in the
opposing party's pleading.
2. Where the averments in the opposing party's
pleading are based on documents which are in the possession of the defendant, or are presumed to be known by
him, or are readily ascertainable by him, a general
allegation of lack of knowledge or information thereof on
his part will not be considered a specific denial but an
admission (see Warner, Barnes and Co., Ltd. vs. Reyes,
et al., 103 Phil. 662; Capitol Motors Corp. vs. Yabut,
L-28140, Mar. 19, 1970; New Japan Motors, Inc. vs.
Perucho, L-44387, Nov. 5, 1976; Gutierrez, et al. vs. CA,
et al., L-31611, Nov. 29, 1976). The defendant must aver
or state positively how it is that he is ignorant of the facts
180

RULE 8

MANNER OF MAKING ALLEGATIONS


IN PLEADINGS

SEC 11

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


et al, L-31869, Aug. 8, 1973). Where the answer alleges
lack of knowledge of the "exact amount due" to the
plaintiff, the same will preclude a judgment on the
pleadings but not a motion for summary judgment
if supported by adequate proof (Phil. Bank of
Communications vs. Guitar Match Mfg. Co., Inc.
102
Phil. 1162 fUnrep.J).
3. Where the answer merely reproduces the recitals
in the complaint and denies such recitals without setting
forth the matters relied upon in support of such denials
although it is practicable to do so, such answer contains
only general denials and judgment on the pleadings is
proper (Sy-Quia, et al. vs. Marsman, ct al, L-23426,
Mar. 1, 1968).
4. A "aeg*tiv pregnant" is that form of denial
which at the same time involves an affirmative implication favorable to the opposing party. Such a "negative
pregnant" is in effect an admission of the averment
to which it is directed (1 Martin 306). It is said to be a
denial pregnant with an admission of the substantial
facts in the pleading responded to (Guevarra vs. Eala, A.C.
No. 7136, Aug. 6, 2007).
Where a fact is alleged with some qualifying or
modifying language, and the denial is conjunctive, a
negative pregnant exists and only the qualification or
modification is denied, while the fact itself is admitted
(Ison vs. Ison, 115 SW 2d. 330, 272 Ky, 836). Thus,
where the complaint alleges that the defendant deprived
plaintiff of possession on a claim of having purchased
the property from a third person, and the answer denies
merely the "material averments" and asserts that the
defendant never claimed possessory rights based on the
alleged purchase from such third person, there is a
negative pregnant as the defendant has in effect, denied
only the qualification but not the averment that he had
181

RULE 8

REMEDIAL LAW COMPENDIUM

SEC. 11

deprived the plaintiff of actual possession of the land


(Galofa vs. Nee Bon Sin, L-22018, Jan. 17, 1968).
5. The same rule applies in appellate proceedings
where the appellant's assignment of error is to the effect
that the conclusion of the Court of Appeals "is not supported by any direct testimonial evidence." This is a
negative pregnant as such contention does not deny
the existence of indirect testimonial evidence or of
documentary evidence
(Taniayo us. Callejo, et al., L25563, July 28, 1972).
6. Where the suit is brought upon the contractual
obligation under the contract of carriage contained in
bills of lading, such bills of lading can be categorized as
actionable documents which under this Rule must be
pleaded either as causes of action or defenses, and the
genuineness and execution of which are deemed admitted
unless specifically denied under oath by the adverse
party.
Even assuming that the party against whom said
provisions in the bills of lading are alleged made an
averment in its responsive pleading which amounts to a
denial, such denial is nonetheless pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. Thus, while
the responding party objected to the validity of the
agreement contained in the bills of lading for being
contrary to public policy, the existence of the bills of lading
and the stipulations therein are impliedly admitted. The
denial made by the responding party is what is known in
the law on pleadings as a negative pregnant and is in
effect an admission of the averment it is directed to
(Philippine American General Insurance Co., et al. vs.
Sweet Lines, Inc., et al, G.R. No. 87434, Aug. 5, 1992).
Sec. 11.
Allegations not specifically denied deemed
admitted. M * t e x i a l ~ i v e r m e n t in t h e c o m p l a i n t ,
182

RULE 8

MANNER OF MAKING ALLEGATIONS


IN PLEADINGS

SEC 11

o t h e r thon- t h o s e e t o t h e - a m o u n t o f u n l i q u i d a t e d
damages, shall be d e e m e d admitted w h e n not
specifically d e n i e d . Allegations of usury in a
c o m p l a i n t t o r e c o v e r u s u r i o u s i n t e r e s t are d e e m e d
a d m i t t e d i f n o t d e n i e d u n d e r o a t h , ( l a , R9)
NOTES
1. The following averments in the complaint are
not deemed admitted even if not specifically denied:
(sf) allegations as to the amount of damages, (b) allegations
which are immaterial to the cause of action (Worcester
vs. Lorenzana, 104 Phil. 134), which includes conclusions
of fact and law, inferences, etc., and (c)'all allegations in
the complaint where no answer has been filed by the
defendant (Lopez vs. Mendezona, 11 Phil. 209; Worcester
vs. Lorenzana, supra).
2. The following averments in the complaint are
deemed admitted even if specifically denied: (a) allegations
as to usury, and (b) the authenticity and due execution
of actionable documents properly pleaded where the
opposing party was a party thereto. Mere specific denial
is insufficient as the Rules require that such denial must
be under oath.
3. However, it has been held that the rule that
allegations of usury are deemed admitted if not denied
specifically and under oath is a procedural rule and the
lack of an oath in a pleading is a defect which is subject
to waiver just as a defective or imperfect verification may
be waived. Besides, the reglementary admission of the
allegation of usury arising from failure to make a denial
under oath may, like any other admission in court, be
withdrawn with leave of court under Sees. 2 and 3,
Rule 10 which permit substantial amendment of pleadings
once as a matter of right when the action has not been
placed on the trial calendar or, after the case is set for

183

RULE 8

REMEDIAL LAW COMPENDIUM

SEC. 12

hearing, upon leave of court (Dionisio vs. Puerto, et al.,


L-39452, Oct. 31, 1974).
See, in t h i s connection, t h e case of Liam Law vs.
Olympic Sawmill, et al., supra, cited u n d e r Note 3 of
Sec. 10, Rule 6 and the discussion thereon.
4. Where the defendant relied solely on his defense
of res judicata and s u b m i t t e d t h e case for decision on
t h a t issue, he is deemed to have a d m i t t e d all t h e m a t e r i a l
allegations in the complaint and j u d g m e n t can be
r e n d e r e d accordingly (Dominguez vs. Filipinos Integrated
Services Corp., et al., G.R. No. 58820, Sept. 30, 1982).
S e c . 12. Striking
out
of pleading
or
matter
contained therein. U p o n m o t i o n m a d e by a p a r t y
b e f o r e r e s p o n d i n g t o a p l e a d i n g or, i f n o r e s p o n s i v e
pleading is permitted by these Rules, upon motion
m a d e b y a p a r t y w i t h i n t w e n t y (20) d a y s a f t e r t h e
service of the pleading upon him, or upon the court's
own initiative at any time, the court may order any
pleading to be stricken out or that any sham or
false, redundant, immaterial, impertinent, or
scandalous matter be stricken out therefrom.
(5, R9)

184

RULE 9
E F F E C T OF FAILURE TO PLEAD
S e c t i o n 1. Defenses and objections not pleaded.
D e f e n s e ^ - a ^ u l - o b j e c t i o n e - n o t - p l e a d e d e i t h e r in a
motion t o d i s m i s s - o r i n the a n s w e r are d e e m e d
waived. However, w h e n it appears from the
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that
there is another action pending between the same
p a r t i e s for t h e s a m e c a u s e , o r t h a t t h e a c t i o n i s
barred by a prior j u d g m e n t or by s t a t u t e of
l i m i t a t i o n s , t h e c o u r t s h a l l d i s m i s s t h e c l a i m . (2a)
NOTES
1. Under this amended provision, the following
defenses are not waived even if not raised in a motion to
dismiss or in the answer: (a") lack of jurisdiction over the
subject matter; (p~) litis pendentia; (c) res judicata; and
(d) prescription of the action.
2. The omnibus motion rule in the former Sec. 2 of
this Rule also provided, as an exception thereto, "the
failure to state a cause of action which may be alleged in
a later pleading, if one is permitted, or by motion for
judgment on the pleadings, or at the trial on the merits;
but in the last instance, the motion shall be disposed of
as provided in Section 5, Rule 10 in the light of any
evidence which may have been received."
That ground and the alternative bases for considering it, in the event it was not alleged in either a motion
to dismiss or in the answer, has been deleted as an
exception to the omnibus motion rule. The alternative
ways for posing this ground for consideration of the
court in other pleadings, that is, in a later pleading if

185

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 1

p e r m i t t e d or by motion for j u d g m e n t on t h e pleadings,


are contingent on future events and will only result in
delay. On t h e other h a n d , t h e failure to s t a t e a cause
of a c t i o n s h o u l d be c h a l l e n g e d in e i t h e r a m o t i o n to
dismiss or in the a n s w e r so t h a t t h e case will not proceed
for consideration, despite such omission, upon a defective
and insufficient complaint which could have been remedied
in the first instance by the plaintiff duly r e s p o n d i n g to
t h e objection on t h a t ground. If t h a t ground is correctly
r a i s e d in a motion to d i s m i s s , or in t h e a n s w e r as an
affirmative defense, the court can a l w a y s allow
a m e n d m e n t of t h e complaint a n d t h e case will proceed to
t r i a l sans t h a t defect. If t h e complaint is dismissed on
t h a t g r o u n d , t h e plaintiff c a n refile his c o m p l a i n t a s
such dismissal does not normally constitute an adjudication
on t h e m e r i t s .
T h e foregoing o b s e r v a t i o n s refer t o t h e s i t u a t i o n
w h e r e the complaint or o t h e r initiatory pleading fails to
allege facts c o n s t i t u t i v e of a c a u s e of action. W h a t is
c o n t e m p l a t e d , therefore, is a failure to state a e a u s e of
action which is provided in Sec. 1(g) of Rule 16. T-hie-is a
m a t t e r of insufficiency of t h e pleading. Sec. 5 of Rule 10,
w h i c h w a s also i n c l u d e d a s t h e l a s t m o d e for -raising
t h e issue to t h e court, refers to t h e s i t u a t i o n w h e r e t h e
evidence does not prove a cause of action. T h i s i s , therefore,
a m a t t e r of insufficiency of t h e evidence. F a i l u r e to s t a t e
a cause of action is different from failure to prove a cause
of action. The-remedy in t h e first is to move for dismissal
of t h e pleading, while t h e remedy in t h e second is t e d e m u r
to t h e evidence, hence reference to Sec. 5 of Rule-1-0 h a s
been e l i m i n a t e d in t h i s section. The p r o c e d u r e would
consequently be to r e q u i r e t h e pleading to s t a t e a cause
of action, by timely objection to its deficiency; or, at the
trial, to file a d e m u r r e r to t h e evidence, if such motion is
warranted.

186

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 1

3. The objection on jurisdictional grounds which is


not waived even if not alleged in a motion to dismiss or
the answer is lack of jurisdiction over the subject-matter.
Lack of jurisdiction over the nature of the action has been
eliminated in Rule 16 of these revised Rules, although
that objection may possibly be raised in other pleadings
or proceedings. Lack of jurisdiction over the subjectmatter can always be raised anytime, even for the first
time on appeal, since jurisdictional issues cannot be
waived but subject, however, to the principle of estoppel
by laches.
4. The'defense of litis pendentia has been included
in the exceptions to the general rule on waiver in this
amended section by reason of the fact that, since the
other case is still pending, a resolution of the objection
raised on this ground should properly await the resolution
of and the developments in the other pending case. Upon
the occurrence of the relevant contingencies in that
other case, this objection may then be raised, unless
already submitted to the court, which by then would be
in a better position to appreciate the merits of this
objection.
5. Res judicata and prescription of the claim have
also been added as exceptions since they are grounds
for extinguishment of the claim. It would appear to be
unduly technical, if not contrary to the rule on unjust
enrichment, to have the defending party respond all
over again for the same claim which has already been
resolved or is no longer recoverable under the law. It is
worth mentioning in this connection that, in Sec. 5 of
Rule 16 as amended, an order granting a motion to
dismiss on the grounds, inter alia, of res judicata or
prescription shall bar the refiling of the same action or
claim.

187

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 1

6 . T h e p r e s e n c e o f a n y o f t h e s e four g r o u n d s
authorizes the court to motu proprio dismiss the claim,
t h a t is, the claims a s s e r t e d in a complaint, counter claim,
cross-claim, third (fourth, etc.)-party complaint or
complaint-in-intervention (see Sec. 2, Rule 6). In order
t h a t it may do so, it is necessary t h a t t h e constitutive
facts of such grounds, if not in the a n s w e r with evidence
duly adduced therefor, should a p p e a r in the other
pleadings filed or in the evidence of record in t h e case.
7. Specifically with respect to t h e defense of pres c r i p t i o n , t h e p r e s e n t provision is s i m i l a r to t h e r u l e
a d o p t e d i n civil c a s e s , b u t d i s s i m i l a r t o t h e r u l e a n d
r a t i o n a l e in c r i m i n a l cases. In civil cases, it h a s been
held t h a t the defense of prescription may be considered
only if t h e s a m e is invoked in t h e a n s w e r , except w h e r e
t h e fact of prescription a p p e a r s in t h e allegations in the
c o m p l a i n t or t h e e v i d e n c e p r e s e n t e d by t h e plaintiff,
in which case such defense is not deemed waived
(Ferrer vs. Ericta, et al., L 41761, Aug. 23, 1978; Garcia
vs. Mathis, et al., L-48577, Sept. 30, 1980).
It would
thus appear t h a t the non-waiver is dependent on the
t i m e l i n e s s of invocation of t h e defense, or w h e r e such
defense is a m a t t e r of record or evidence.
8. In criminal cases, the s a m e general rule on waiver
of any ground for a motion to q u a s h also o b t a i n s w h e r e
t h e accused fails to a s s e r t t h e s a m e e i t h e r b e c a u s e he
did not file such motion before he p l e a d e d or failed to
allege s u c h g r o u n d t h e r e i n . E x c e p t e d from t h i s r u l e ,
h o w e v e r , is t h e g r o u n d of p r e s c r i p t i o n e i t h e r of t h e
offense or t h e penalty, t h a t is, t h a t t h e criminal action or
liability h a s been e x t i n g u i s h e d (Sec. 9, Rule 117). This
provision does not r e q u i r e the qualifications of seasonable i n v o c a t i o n or r e c o r d e d fact of t h e g r o u n d of
prescription as discussed above for civil actions. Instead,
said provision is evidently based on t h e r u l i n g s of t h e
S u p r e m e Court t h a t objection on the ground of

188

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 2

p r e s c r i p t i o n of t h e c r i m e is not w a i v e d e v e n if not
raised before t h e plea, since prescription is a substantive
r i g h t w h i c h c a n n o t be d e f e a t e d by p r o v i s i o n s of a
procedural law (People vs. Moran, 44 Phil. 387; People
vs. Castro, 95 Phil. 462). For t h a t m a t t e r , such objection
may even be raised for the first time on appeal (People
vs. Balagtas, 105 Phil. 1362 fUnrep.J; Escano, et al. vs.
Geronimo, [CA], 60 O.G. 8497).
S e c . 2. Compulsory counterclaim, or cross-claim, not
set up barred. A c o m p u l s o r y c o u n t e r c l a i m , or a
c r o s s - c l a i m , n o t s e t u p s h a l l b e b a r r e d . (4a)
NOTES
1. See notes u n d e r Sees. 7 and 8, Rule 6.
2. W h e r e , in a first action a g a i n s t him, t h e compulsory c o u n t e r c l a i m of d e f e n d a n t w a s d i s m i s s e d for
non-payment of docket fee, such dismissal is not a bar
to his filing of t h e s a m e counterclaim in a s u b s e q u e n t
action i n s t i t u t e d b y t h e plaintiff involving t h e s a m e
subject-matter. The dismissal of said counterclaim
does not c o n s t i t u t e res judicata because it w a s not a
determination on the merits of the counterclaim. Also,
the dismissal of said counterclaim having been
u n q u a l i f i e d , h e n c e w i t h o u t p r e j u d i c e , i t d o e s not
constitute an adjudication on the merits since this rule
in Sec. 2, Rule 17 applies not only to a complaint but
also to a counterclaim which p a r t a k e s of the n a t u r e of a
complaint. This is aside from t h e consideration t h a t ,
since the dismissal of the counterclaim was premised on
the postulate t h a t for non-payment of the docket fee the
court did not acquire jurisdiction thereover, t h e n with
much more r e a s o n can t h e r e be no invocation of res
judicata, not to speak of the fact t h a t it was error for
the trial court to order such dismissal since the
payment of docket fees is required only for permissive,
189

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 3

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


G.R. No. 101883, Dec. 11, 1992).
S e c . 3. Default; declaration of. If t h e d e f e n d i n g
party fails to a n s w e r within the time allowed
therefor, the court shall, upon motion of the
c l a i m i n g party with notice to the d e f e n d i n g party,
and proof of such failure, declare the defending
party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such
relief as his pleading may warrant, unless the court
in its d i s c r e t i o n r e q u i r e s the c l a i m a n t to s u b m i t
evidence. Such reception of evidence may be
d e l e g a t e d t o t h e c l e r k o f c o u r t , ( l a , R18)
(a) Effect of order of default. A p a r t y in d e f a u l t
shall be entitled to notice of s u b s e q u e n t proceedings
b u t n o t t o t a k e p a r t i n t h e t r i a l . (2a, R18)
(b) Relief from order of default. A p a r t y d e c l a r e d
in default may at any time after notice t h e r e o f and
b e f o r e j u d g m e n t file a m o t i o n u n d e r o a t h t o s e t a s i d e
the order of default upon proper showing that his
failure to a n s w e r was due to fraud, accident,
mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of
default may be set aside on such terms and
conditions as the judge may impose in the interest
o f j u s t i c e . (3a, R18)
(c) Effect of partial default. W h e n a p l e a d i n g
a s s e r t i n g a claim states a c o m m o n c a u s e of action
against several defending parties, some of whom
a n s w e r a n d t h e o t h e r s fail t o d o s o , t h e c o u r t s h a l l
t r y t h e c a s e a g a i n s t all u p o n t h e a n s w e r s t h u s filed
and render judgment upon the evidence presented.
(4a, R18)

190

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

(d) Extent of relief to be awarded. A j u d g m e n t


r e n d e r e d a g a i n s t a p a r t y in d e f a u l t s h a l l n o t e x c e e d
t h e a m o u n t o r b e d i f f e r e n t i n k i n d from t h a t p r a y e d
for n o r a w a r d u n l i q u i d a t e d d a m a g e s . (5a, R18)
(e) Where no defaults allowed. If t h e d e f e n d i n g
party i r f a n a c t i o n for a n n u l m e n t o r d e c l a r a t i o n o f
n u l l i t y of m a r r i a g e or for l e g a l s e p a r a t i o n fails to
answer, the court shall order the prosecuting
attorney to investigate w h e t h e r or not a collusion
between the parties exists, and if there is no
c o l l u s i o n , t o i n t e r v e n e for t h e S t a t e i n o r d e r t o s e e
to it that the e v i d e n c e submitted is not fabricated.
(6a, R18)
^ ^ O T E S ' ' " ' - "
1. An order of default should be distinguished from
a judgment by default. An order of default is issued by
the court, on plaintiffs motion and at the start of the
proceedings, for failure of the defendant to file his
responsive pleading seasonably. It is only thereafter,
when the evidence for the plaintiff has been received ex
parte, that the court renders a judgment by default on
the basis of such evidence.
2. This section provides for the extent of the relief
that may be awarded in the judgment by default, i.e.,
only so much as has been alleged and proved. The court
acts in excess of jurisdiction if it awards an amount
beyond the claim made in the complaint or beyond that
proved by the evidence. Furthermore, as amended, no
unliquidated damages can be awarded and said judgment
shall not exceed the amount or be different in kind from
that prayed for. If the claim is not proved, the case should
be dismissed (Pascua, et al. us. Florendo, et al., L-38047,
April 30, 1985).

191

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 3

3. F a i l u r e to file a responsive pleading within the


r e g l e m e n t a r y period, a n d not failure t o a p p e a r a t t h e
hearing, is the sole ground for an order of default (Rosario,
et al. vs. Alonzo, et al, L-17320, June 29, 1963), except
t h e failure to a p p e a r at a p r e - t r i a l conference w h e r e i n t h e
effects of a d e f a u l t on t h e p a r t of t h e d e f e n d a n t a r e
followed, t h a t is, t h e plaintiff shall be allowed to p r e s e n t
evidence ex parte and a j u d g m e n t based t h e r e o n may be
r e n d e r e d a g a i n s t t h e d e f e n d a n t (Sec. 5, Rule 18). Also,
a default j u d g m e n t may be rendered, even if t h e defendant
had filed his a n s w e r , u n d e r t h e c i r c u m s t a n c e in Sec. 3(c),
Rule 29.
4. The court c a n n o t motu proprio declare a defend a n t in default (Viacrusis vs. Estenzo, L-18457, June 30,
1962; Trajano, et al. vs. Cruz, et al, L-47070, Dec. 29,
1977). T h e r e m u s t be a m o t i o n to t h a t effect by t h e
plaintiff w i t h proof of failure by t h e d e f e n d a n t to file
his responsive p l e a d i n g despite due notice (Soberano vs.
MRR Co., L-19407, Nov. 23, 1966; Sarmiento vs. Juan,
G.R. No. 56605, Jan. 28, 1983). Formerly, t h e d e f e n d a n t
did not have to be served w i t h notice of t h e motion to
have h i m d e c l a r e d in default (Pielago vs. Generosa, 73
Phil. 634, based on Sec. 9, Rule 27 of t h e old Rules a n d
r e p r o d u c e d s u b s t a n t i a l l y in Sec. 9, Rule 13; De Guzman
vs. Santos, et al, L-22636, June 11, 1970, citing Duran
vs. Arboleda, 20 Phil. 253; Inchausti & Co. vs. De Leon,
24 Phil. 224; Monteverde vs. Jaranilla, 49 Phil. 297;
Manila Motor Co. vs. Endencia, 72 Phil. 130; The Phil.
British Co., Inc., et al vs. Delos Angeles, etc., et al,
L-33720-21, Mar. 10, 1975). An i m p o r t a n t c h a n g e h a s
been effected by t h e p r e s e n t a m e n d m e n t s in t h e sense
t h a t an order of default can be made only upon motion of
t h e claiming p a r t y and with t h e corresponding notice to
t h e defending p a r t y .
On the other hand, under the rule on summary
p r o c e d u r e , no default order is r e n d e r e d or required as a
motion to declare t h e d e f e n d a n t in default is prohibited;
192

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

and a default j u d g m e n t may be r e n d e r e d by the court


motu proprio or on motion of the party asserting the claim.
5. The defendant who files his a n s w e r in court in
time but failed to serve a copy thereof upon the adverse
p a r t y may validly be declared in default (Gonzales vs.
Francisco, 49 Phil. 747; Banares vs. Flordeliza, et al., 51
Phil. 786).
6. T h e fact t h a t t h e d e f e n d a n t w a s d e c l a r e d in
default is of no m o m e n t w h e n t h e plaintiff would not
have been entitled to relief since his complaint did not
state a cause of action, hence the same should be dismissed
(Reyes vs. Tolentino, et al., L-29142, Nov. 29, 1971).
7. It is within the discretion of the trial court to set
a s i d e a n o r d e r o f d e f a u l t a n d p e r m i t t h e filing o f
defendant's a n s w e r even beyond the r e g l e m e n t a r y
period, or to refuse to set aside the default order where it
finds no justification for t h e delay in the filing of the
a n s w e r (Malipod vs. Tan, L-27730, Jan. 21, 1974).
However, defendant's answer should be admitted where
it was filed before he had been declared in default and
no p r e j u d i c e could h a v e b e e n c a u s e d to plaintiff, as
default j u d g m e n t s a r e generally disfavored (Trajano,
et al. vs. Cruz, et al., supra). Where the answer is filed
beyond the r e g l e m e n t a r y period but before the defendant
was declared in default, and t h e r e is no showing t h a t
defendant intended to delay the case, the answer should
be a d m i t t e d (Cathay Pacific Airways, Ltd. vs. Romillo,
etc., et al, G.R. No. 64276, Mar. 4, 1986).
Also, where
the failure of d e f e n d a n t to seasonably file her a n s w e r
is excusable and the lifting of the default order will not
in any way prejudice plaintiff's s u b s t a n t i a l rights, the
court should apply the Rules liberally and set aside the
default order (Santos vs. De la Fuente Samson, et al,
L-46371, Dec. 14, 1981; cf. Akut vs. CA, et al, L-45472,
Aug. 30, 1982; Azul, et al. vs. Castro, et al, G.R.
No. 52241, Nov. 19, 1984).
193

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 3

8. A motion to lift an o r d e r of d e f a u l t should be


u n d e r oath or verified and accompanied by an affidavit of
m e r i t s . T h e r e q u i r e m e n t s of Sec. 3 of t h i s Rule a r e
practically identical to those of Sec. 3, Rule 38 (The Phil.
British Co., Inc. vs. De los Angeles, etc., et al., supra;
Claridad, et al. vs. Santos, et al., L-29594, Jan. 27, 1983).
H o w e v e r , if t h e motion to lift t h e o r d e r of d e f a u l t is
grounded on t h e very root of t h e proceedings, i.e., invalid
service of s u m m o n s on the defendant, affidavits of m e r i t s
a r e not necessary (Ponio vs. IAC, et al., G.R. No. 66782,
Dec. 20, 1984).
Also, if the motion to lift an order of default is u n d e r
oath a n d contains t h e r e a s o n s for the failure to a n s w e r ,
as well as t h e prospective defenses, a s e p a r a t e affidavit
of m e r i t s a n d a v e r i f i c a t i o n a r e not n e c e s s a r y (Lim
Tanhu, et al. vs. Ramolete, et al, L-40098, Aug. 29, 1975;
Azul, et al. vs. Castro, et al., supra).
9. Where a motion to lift an order of default is denied
and a motion for t h e reconsideration of said denial order
is filed based on s u b s t a n t i a l l y t h e s a m e g r o u n d s , said
motion for reconsideration is not pro forma as it is directed
a g a i n s t an interlocutory, a n d not a final, order a n d the
r e i t e r a t i o n of t h e s a m e g r o u n d s seeks a second look by the
court on t h e m e r i t s of said g r o u n d s (BA Finance Corp. vs.
Pineda, et al., G.R. No. 61628, Dec. 29, 1982).
10. The motion to lift t h e order of default, aside from
t h e r e q u i r e m e n t s in Sec. 3 of this Rule, m u s t f u r t h e r show
t h a t t h e d e f e n d a n t h a s a m e r i t o r i o u s defense o r t h a t
s o m e t h i n g would be gained by having the o r d e r of
d e f a u l t s e t a s i d e (Carandang vs. Cabatuando, et al.,
L-25384, Oct. 26, 1973). O t h e r w i s e , and if t h e motion is
not accompanied by affidavits of m e r i t s , it may properly
be denied (Ong Peng vs. Custodio, L-14911, Oct. 26, 1961;
The Phil. British Co., Inc., et al. vs. De los Angeles, etc.,
et al., supra).

194

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

11. T h e former r u l e w a s t h a t w h e r e a p a r t y had


moved to set aside the order of default, he was entitled to
copies o f all p l e a d i n g s a n d o r d e r s filed a n d i s s u e d
thereafter. If he had not done so, he was still entitled to
be served with copies of substantially amended or supp l e m e n t a l pleadings, as well as final orders or j u d g m e n t s .
The qualifications were rationalized as follows:
He must be served with amended pleadings and
s u p p l e m e n t a l pleadings as he may be entitled to plead
thereto. T h u s , if the defendant was declared in default
upon an original complaint, t h e filing of t h e a m e n d e d
c o m p l a i n t r e s u l t e d in t h e w i t h d r a w a l of t h e o r i g i n a l
complaint, hence t h e defendant was entitled to file an
answer to the amended complaint as to which he was not
in default. If t h e s u p p l e m e n t a l pleading introduced new
claims, he was entitled to plead thereto as jurisdiction had
not been acquired over him in respect thereof.
He had to be served with a copy of the j u d g m e n t by
default as he had t h e right to appeal therefrom and in
said appeal he may, aside from attacking the propriety
of the relief t h e r e i n awarded, assign as error the order of
t h e c o u r t d e c l a r i n g him in default, or refusing to set
aside such order, or denying a motion for new trial as
the case may be.
T h i s w a s b e c a u s e t h e n Sec. 2 of Rule 18 r e a d :
"Except as provided in Section 9 of Rule 13, a p a r t y
d e c l a r e d in d e f a u l t s h a l l not be e n t i t l e d to notice of
s u b s e q u e n t proceedings, nor to take p a r t in t h e trial."
T h i s r u l e w a s c o n s i d e r e d too h a r s h , h e n c e , a s now
amended, p a r . (a) of t h i s section simply provides t h a t
while a p a r t y in default cannot take p a r t in the trial, he is
nonetheless entitled to notice of subsequent proceedings
without the qualifications under the former practice.
12. If the court sets aside the order of default, the
defendant is restored to his standing and rights in the
action. However, proceedings already taken are not to
195

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 3

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


it is w i t h i n t h e discretion of t h e c o u r t to re-open t h e
evidence submitted by the plaintiff and enable the
defendant to challenge the s a m e , as by cross-examination
of p l a i n t i f f ' s w i t n e s s e s or i n t r o d u c i n g c o u n t e r v a i l i n g
e v i d e n c e (see Denso [Phil.], Inc. vs. IAC, et al., G.R.
No. 75000, Feb. 27, 1987). The lifting of an order of default
does not r e v e r t t h e case to its pre-trial stage, much less
r e n d e r a second p r e - t r i a l m a n d a t o r y (DBP vs. CA, et al.,
L-49410, Jan. 26, 1989).
13. U n d e r t h e former procedure, and t h e s a m e would
hold t r u e u n d e r t h e p r e s e n t a m e n d e d Rules, t h e alternative and successive r e m e d i e s of a p a r t y properly
declared in default in t h e former Court of F i r s t I n s t a n c e
were: (1) He may file a verified motion to set aside t h e
order of default at any time after discovery thereof and
before j u d g m e n t ; (2) If he did not file one or t h e s a m e
was denied, he could file a motion for new t r i a l at any
time after service of j u d g m e n t by default a n d w i t h i n 30
days therefrom; (3) If he failed to file said motion or t h e
s a m e w a s denied, he could perfect his a p p e a l from and on
t h e m e r i t s of said j u d g m e n t by default w i t h i n t h e balance
of said 30-day period; a n d (4) If he failed to t a k e any of
such s t e p s , he could file a petition for relief from j u d g m e n t
within 60 days from notice of t h e j u d g m e n t b u t w i t h i n 6
m o n t h s from e n t r y thereof (see Lina vs. CA, et al., G.R.
No. 62397, April 9, 1985).
It should be noted, however, t h a t u n d e r B.P. Big. 129
a n d t h e I n t e r i m Rules, t h e r e g l e m e n t a r y period to a p p e a l
h a s been uniformly set at 15 days, except in habeas corpus
cases for which t h e 48-hour period h a s been m a i n t a i n e d ,
and in special proceedings or cases wherein multiple
appeals are p e r m i t t e d and in which cases the r e g l e m e n t a r y
period is still 30 days. Considering the fact t h a t t h e period
for filing a motion for new t r i a l is c o t e r m i n o u s with the
r e g l e m e n t a r y period for appeal, the 30-day periods for the
s e c o n d a n d t h i r d r e m e d i e s a b o v e s t a t e d w o u l d now
196

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

apply only to special proceedings and cases susceptible of


multiple appeals, with the first and fourth remedies being
a v a i l a b l e as before. In all o t h e r civil a c t i o n s , all t h e
abovestated remedies from a default j u d g m e n t are still
available, it being understood, however, t h a t the remedy
of new t r i a l and appeal should now be availed of within
15 days from receipt of the j u d g m e n t by default.
14. Where however, the defendant was improperly
declared in default, as w h e r e the reglementary period to
a n s w e r had not yet expired, he can, if such default order
is not lifted, e l e v a t e t h e m a t t e r by c e r t i o r a r i w i t h o u t
waiting for t h e default j u d g m e n t (Viacrusis vs. Estenzo,
L-18457, June 30, 1962;
Pioneer Insurance & Surety
Corp. vs. Hontanosas, L-35951,
Aug. 31, 1977).
If a
default j u d g m e n t was already rendered, he can also resort
immediately to certiorari as his challenge is on the nullity
of both t h e order and the j u d g m e n t by default and not
on the m e r i t s or correctness of the j u d g m e n t (Matute vs.
CA, et al., L-26751, Jan. 3, 1969), especially where a writ
of execution was already issued, hence appeal would not
be a s p e e d y a n d a d e q u a t e r e m e d y (Omico Mining &
Industrial Corp. vs. Vallejos, et al., L-38974, Mar. 25,
1975; Zenith Insurance Corp. vs. Purisima, et al., G.R.
No. 57535, May 24, 1982).
15. It has also been held t h a t while, as a general
rule, certiorari may not be availed of where an appeal is
available a n d an appeal lies from a j u d g m e n t by default,
nevertheless if t h e r e was grave abuse of discretion on the
p a r t of t h e trial court, the special civil action of certiorari
may be availed of by the aggrieved party as this is an
exception to said general rule. Certiorari would provide a
more speedy and a d e q u a t e remedy since the aggrieved
party in a default j u d g m e n t had no opportunity to adduce
evidence in the trial court; hence, on appeal, only the selfserving evidence presented by the plaintiff in the ex parte
reception thereof would be considered (Continental Leaf
197

RULE 9

REMEDIAL LAW COMPENDIUM

Tobacco [Phil.], Inc.


Nov. 22, 1985).

vs.

CA,

et

al.,

G.R.

SEC. 3

No.

69243,

16. A p e t i t i o n for relief from t h e o r d e r of default


m a y be filed at any t i m e after discovery of t h e default
order a n d before j u d g m e n t (Turqueza vs. Hernando, etc.,
et al., G.R. No. 51626, April 30, 1980). Said o r d e r of
default, however, is not a p p e a l a b l e as t h e s a m e is an
i n t e r l o c u t o r y o r d e r (Vda. de Hoyo-a, et al. vs. Virata,
et al., G.R. No. 71171, July 23, 1985) a n d t h e s a m e is t r u e
w i t h an order d e n y i n g a motion for t h e r e c o n s i d e r a t i o n
of t h e default order.
17. It h a s also b e e n h e l d , h o w e v e r , t h a t w h i l e a
default order, being interlocutory, is not a p p e a l a b l e , an
order d e n y i n g a p e t i t i o n for relief, s e e k i n g to set aside
an order of default, is not merely interlocutory but
final a n d , t h e r e f o r e , a p p e a l a b l e (Rodriguez, et al. vs.
IAC, et al, G.R. No. 74816, Mar. 17, 1987).
18. It should not be overlooked t h a t p a r . (c) of t h i s
section, which enunciates the rule on p a r t i a l default,
does not apply w h e r e t h e defending p a r t i e s a r e jointly
s u e d or i m p l e a d e d u n d e r s e p a r a t e c a u s e s of action. It
c o n t e m p l a t e s a claim or s u i t u p o n a c o m m o n c a u s e of
action a g a i n s t s e v e r a l defending p a r t i e s at l e a s t one of
w h o m files an a n s w e r while t h e o t h e r s a r e in default.
19. If t h e a n s w e r i n g d e f e n d a n t succeeds in defeating
t h e p l a i n t i f f s claim, such r e s u l t i n u r e s also to t h e benefit
of t h e d e f a u l t i n g d e f e n d a n t s (Velez vs. Ramos, 10 Phil.
788;
Bringas vs. Hernando, G.R. No. 51933, Sept. 24,
1986).
2 0 . W h e r e a c o - d e f e n d a n t w h o filed h i s a n s w e r
died a n d t h e case w a s dismissed a s t o him, t h e a n s w e r h e
filed does not i n u r e to t h e benefit of t h e d e f e n d a n t who
did not file his own a n s w e r . N e i t h e r will t h e rule apply
where the defenses alleged by the defendant who

198

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

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


Magbonua, et al., L-43851, July 30, 1976).
2 1 . The d e f e n d a n t who failed to a n s w e r s h a l l be
declared in default and is deprived of the right to take
p a r t in the trial and, in effect, he submits to w h a t e v e r
decision may be rendered on the basis of the a n s w e r and
evidence adduced by t h e a n s w e r i n g co-defendant (Lim
Tanhu us. Ramolete, etc., et al., L-40098, Aug. 29, 1975;
cf. Co us. Acosta, et al, G.R. No. 64591, Jan. 17, 1985).
22. There is no provision of the Rules disqualifying
a p a r t y declared in default from taking the witness stand
for h i s c o - d e f e n d a n t s . T h e specific e n u m e r a t i o n of
d i s q u a l i f i e d w i t n e s s e s e x c l u d e s t h e o p e r a t i o n of t h e
causes of disability o t h e r t h a n to those m e n t i o n e d in
Sees. 19, 20 and 2 1 , Rule 130. The provision of t h e n
Sec. 2, Rule 18 to t h e effect t h a t "a p a r t y declared in
default s h a l l not be e n t i t l e d to notice of s u b s e q u e n t
proceedings nor to t a k e p a r t in the trial" (now, par. [a]
of this section, as amended) means only the forfeiture of
the defaulting party's rights as a party litigant and not
a disqualification from merely testifying as a witness.
The incidental benefit of giving the party in default the
opportunity to p r e s e n t evidence which may eventually
redound to his a d v a n t a g e , through his co-defendants, is
of minor consequence. There is no reason why the nondefaulting d e f e n d a n t s should be deprived of the
testimony of the party in default and thereby also suffer
the c o n s e q u e n c e s of t h e l a t t e r ' s p r o c e d u r a l omission
(Cavili, et al. us. Florendo, et al, G.R. No. 73039, Oct. 9,
1987, and cases jointly decided therein).
2 3 . U n d e r par. (c) of this section, when a common
cause of action is alleged against several defendants, two
of w h o m seasonably filed their answers while the others
were declared in default, the answers of the former inure
to t h e b e n e f i t of t h e l a t t e r a n d all t h e d e f e n d a n t s ,

199

RULE 9

REMEDIAL LAW COMPENDIUM

SEC. 3

defaulted and not defaulted, s h a r e a common fate in the


action. It is not within the authority of the trial court to
divide the case before it by first dismissing the same, on
m o t i o n of t h e plaintiff, as a g a i n s t t h e n o n - d e f a u l t e d
defendants and thereafter hearing it ex parte as a g a i n s t
the defaulted defendants and rendering a default
j u d g m e n t a g a i n s t t h e m . This is an unfair procedure and
deprives the defaulted defendants of due process as
they a r e thereby denied the benefit of t h e a n s w e r and the
evidence which could have been p r e s e n t e d by t h e i r nondefaulted co-defendants, and which could be considered
in favor of all. F u r t h e r , said order of dismissal divested
t h e t r i a l court of t h e jurisdiction to proceed with t h e case
since all t h e d e f e n d a n t s a r e obligors in solidum, hence
indispensable p a r t i e s (Lim Tanhu, et al. us. Ramolete, etc.,
et al., supra).
24. T h e p e r t i n e n t p r o v i s i o n s o f t h e Civil Code
provided as follows
"Art. 88. No j u d g m e n t a n n u l l i n g a m a r r i a g e shall
be p r o m u l g a t e d u p o n a s t i p u l a t i o n of facts or by
confession of j u d g m e n t .
In case of n o n - a p p e a r a n c e of t h e d e f e n d a n t t h e
provisions of article 101, p a r a g r a p h 2, shall be
observed."
"Art. 101. No decree of legal s e p a r a t i o n shall be
p r o m u l g a t e d u p o n a s t i p u l a t i o n of f a c t s or by
confession of j u d g m e n t .
In case of n o n - a p p e a r a n c e of t h e defendant, t h e
court shall o r d e r the p r o s e c u t i n g a t t o r n e y to inquire
w h e t h e r or not a collusion b e t w e e n t h e p a r t i e s exists.
If t h e r e is no collusion, the p r o s e c u t i n g a t t o r n e y shall
i n t e r v e n e for t h e S t a t e in order to t a k e care t h a t t h e
evidence for t h e plaintiff is not fabricated."
a n d , u n d e r t h e said Code, every collusion to o b t a i n a
decree of legal s e p a r a t i o n or of a n n u l m e n t of m a r r i a g e

200

RULE 9

EFFECT OF FAILURE TO PLEAD

SEC. 3

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


The i n t e r v e n t i o n of t h e prosecuting a t t o r n e y was,
therefore, proper and required where the defendant does
not a n s w e r or, even if he has answered, he does not a p p e a r
personally or by counsel at the trial.
The equivalent provisions of the Family Code are to
this effect:
"Art. 48. In all cases of a n n u l m e n t or declaration
of absolute nullity of m a r r i a g e the court shall order
t h e prosecuting a t t o r n e y or fiscal assigned to it to
a p p e a r on behalf of the S t a t e to take steps to prevent
collusion between t h e p a r t i e s and to take care t h a t
evidence is not fabricated or suppressed.
In the cases referred to in the preceding
p a r a g r a p h , no j u d g m e n t s h a l l be b a s e d u p o n a
stipulation of facts or confession of judgment."
"Art. 60. No decree of legal separation shall be
based upon a stipulation of facts or a confession of
judgment.
In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent
collusion between t h e parties and to take care t h a t
the evidence is not fabricated or suppressed."
2 5 . A default j u d g m e n t rendered in an a n n u l m e n t
case, even if procedurally erroneous, is nevertheless a
valid j u d g m e n t (De la Cruz vs. Ejercito, L-40895, Nov. 6,
1975).

201

R U L E 10
AMENDED AND SUPPLEMENTAL PLEADINGS
S e c t i o n 1.
Amendments in general. P l e a d i n g s
may be amended by adding or striking out an
allegation or the name of any party, or by
c o r r e c t i n g a m i s t a k e in t h e n a m e of a p a r t y or a
mistaken or inadequate allegation or description
in any other respect, so that the actual merits of
the controversy may speedily be determined,
without regard to technicalities, and in the most
e x p e d i t i o u s a n d i n e x p e n s i v e m a n n e r . (1)
S e c . 7. Filing of amended pleadings. W h e n a n y
p l e a d i n g is a m e n d e d , a new copy of the entire
pleading, incorporating the amendments, which
shall be indicated by appropriate marks, shall be
filed. (7a)
NOTES
1. A m e n d m e n t s to a pleading should be indicated in
the a m e n d e d pleading, as by underscoring, enclosing t h e m
in q u o t a t i o n m a r k s , p u t t i n g t h e m in capital l e t t e r s , a n d
so forth, as would m a k e t h e m readily evident.
2. The a m e n d e d p l e a d i n g s u p e r s e d e s t h e original
pleading which is deemed w i t h d r a w n and no longer
c o n s t i t u t e s p a r t of t h e record. However, t h e filing of t h e
a m e n d e d p l e a d i n g does not r e t r o a c t to t h e d a t e of t h e
filing of t h e original, h e n c e , t h e s t a t u t e of l i m i t a t i o n s
r u n s u n t i l t h e filing of t h e a m e n d m e n t (Ruymann, et al.
vs. Director of Lands, 34 Phil. 429). But an a m e n d m e n t
which merely s u p p l e m e n t s and amplifies facts originally
alleged in t h e complaint r e l a t e s back to t h e d a t e of the
c o m m e n c e m e n t of t h e action a n d is not b a r r e d by t h e

202

RULE 10

AMENDED AND
SUPPLEMENTAL PLEADINGS

SECS. 1, 7

s t a t u t e of limitations which expired after the service of


the original complaint (Panay Electric Co. vs. CA, et al.,
G.R. No. 59647, Dec. 11, 1982). It is the actual filing in
c o u r t t h a t c o n t r o l s , a n d not t h e d a t e o f t h e f o r m a l
admission of the amended pleading (Republic vs. Marsman
Dev. Co., L-18956, April 27, 1972).
3. Where t h e original complaint s t a t e s a cause of
action but does it imperfectly, and a f t e r w a r d s an
a m e n d e d c o m p l a i n t is filed c o r r e c t i n g t h e defect, t h e
plea of prescription will relate to the time of the filing of
the original complaint (Pangasinan Trans. Co. vs. Phil.
Farming Co., Ltd., 81 Phil. 273).
However, such rule
would not apply to t h e p a r t y who was impleaded for the
first time in the amended complaint which was filed after
the period of prescription had already lapsed, hence t h e
amended complaint m u s t be dismissed as to such p a r t y
who w a s t h u s belatedly included in the action (Aetna
Insurance Co.
vs. Luzon Stevedoring Corp., L-25266,
Jan. 15, 1975; Seno, et al. vs. Mangubat, et al., L-44339,
Dec. 2, 1987).
4. The rule is t h a t a m e n d m e n t s should be liberally
allowed (Cese vs. GSIS, 109 Phil. 306). This liberality at
the outset of the action decreases as the case moves to its
termination (Salvador vs. Frio, L-25352, May 29, 1970).
However, a m e n d m e n t s to pleadings may be p e r m i t t e d
even for the first time on appeal if, without changing the
cause of action or causing unfair prejudice to the other
p a r t y , t h e p u r p o s e is to (a) correct a defect of p a r t y
plaintiff, as where it is merely to include the husband of
the plaintiff wife (Cuyugan vs. Dizon, 79 Phil. 81); or
(b) s u b s t i t u t e t h e n a m e of t h e r e a l p a r t y in i n t e r e s t
(Palacio vs. Fely Trans. Co., L-15121, Aug. 31, 1962; Chua
Kiong vs. Whitaker, 46 Phil. 578; Alonso vs.Villamor, 16
Phil. 320). T h u s , since a sole proprietorship is a business
organization without juridical personality to sue, an
a m e n d m e n t to s u b s t i t u t e the owner thereof as plaintiff
203

RULE 10

REMEDIAL LAW COMPENDIUM

SEC. 2

is only a f o r m a l a m e n d m e n t (Juasing Hardware vs.


Mendoza, et al., G.R. No. 55687, July 30, 1982). These
a r e a u t h o r i z e d as formal a m e n d m e n t s u n d e r Sec. 4 of
this Rule.
S e c . 2. Amendments as a matter of right.A p a r t y
may amend his pleading once as a matter of
right at any time before a responsive p l e a d i n g
is s e r v e d or, in t h e c a s e of a reply, at a n y t i m e
w i t h i n t e n (10) d a y s a f t e r i t i s s e r v e d . (2a)
NOTES
1. A m e n d m e n t for t h e first time is a m a t t e r of r i g h t
before a responsive pleading is filed or, in t h e case of a
reply, within 10 days after it was served. However,
a m e n d m e n t for t h e second or subsequent t i m e m u s t
always be w i t h leave of court even before a responsive
p l e a d i n g is filed or before t h e case is s e t in t h e c a l e n d a r
of t h e court.
Where some but not all the defendants have filed t h e i r
a n s w e r s , t h e plaintiff may a m e n d his complaint, once as
a m a t t e r of right, in respect to t h e claims a s s e r t e d only
a g a i n s t t h e n o n - a n s w e r i n g d e f e n d a n t s , b u t not as to t h e
claims a s s e r t e d a g a i n s t t h e o t h e r d e f e n d a n t s who have
a n s w e r e d (Siasoco, et al., vs. CA, et al., 362 Phil. 525,
Republic vs. Africa, et al., G.R. No. 172315, Aug 28, 2007).
2. Even after a motion to dismiss h a s been filed by
d e f e n d a n t (Paeste vs. Jaurigue, 94 Phil. 179) or s u c h
motion h a s been s u b m i t t e d for decision (Republic vs. Ilao,
L-16667, Jan. 30, 1962), t h e plaintiff can still a m e n d h i s
c o m p l a i n t as a m a t t e r of right, since a motion to dismiss
is not a responsive p l e a d i n g within t h i s rule. An e r r o r
of t h e court in refusing such a m e n d m e n t is controllable
by m a n d a m u s (Breslin, et al. vs. Luzon Stevedoring Co.,
et al, 84 Phil. 618; Ong Peng vs. Custodio, L-14911,

204

RULE 10

AMENDED AND
SUPPLEMENTAL PLEADINGS

SEC. 2

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


L-27010, April 30, 1969).
3. A m e n d m e n t of the complaint may be allowed even
if an order for its dismissal has been issued as long as the
motion to a m e n d is filed before the dismissal order became
final (Constantino vs. Reyes, L-16853, June 29, 1963).
An
amended a n s w e r may also be allowed even after the case
had been set for trial on the merits if the purpose of the
a m e n d m e n t is to submit the real m a t t e r in dispute without
intent to delay t h e action (Paman vs. Diaz et al., G.R.
No. 59582, Aug. 26, 1982; cf. Sec. 3 of this Rule).
4. It h a s also been held t h a t a complaint can still be
amended as a m a t t e r of right before an a n s w e r t h e r e t o
has been filed, even if t h e r e was a pending proceeding in
a higher court for t h e dismissal of t h a t complaint.
U n d e r Sec. 3 of Rule 10, s u b s t a n t i a l a m e n d m e n t s of
the complaint a r e not allowed without leave of court after
an answer has been served, and this is because any
material change in t h e allegations in the complaint could
p r e j u d i c e t h e d e f e n d a n t who h a s a l r e a d y s e t u p his
defenses in h i s a n s w e r . Conversely, no r i g h t s of t h e
d e f e n d a n t will b e v i o l a t e d b y c h a n g e s m a d e i n t h e
complaint if he has yet to file an answer thereto. The
d e f e n d a n t h a s not p r e s e n t e d any defense t h a t can be
altered or affected by an a m e n d m e n t made in accordance
with Sec. 2 of the Rule. In fact, he can thereafter address
the amended allegations by setting up the defenses thereto
in his p r o j e c t e d a n s w e r (Remington Industrial Sales
Corp. vs. CA, et al, G.R. No. 133657, May 29, 2002).
5. The defense of prescription, which was not raised
in a motion to dismiss nor as an affirmative defense in
the original answer, may be validly set up for the first
time in an amended answer. This situation would not be
violative of, because it does not fall under, the general
rule in t h e n Sec. 2 (now, Sec. 1), Rule 9. The effect of the
205

RULE 10

REMEDIAL LAW COMPENDIUM

SECS. 3-4

filing of the amended answer is t h e w i t h d r a w a l of the


original answer and its substitution by the former. Since
in t h i s case no responsive p l e a d i n g , such as a reply,
h a d been filed by t h e plaintiff a n d t h e case had not
b e e n c a l e n d a r e d for h e a r i n g , t h e d e f e n d a n t h a d t h e
right to amend his answer, p u r s u a n t to Sec. 2, Rule 10,
and in t h e process set up t h e defense of p r e s c r i p t i o n
(Aznar III, et al. vs. Bemad, etc., et al., G.R. No. 81190,
May 9, 1988).
S e c . 3. Amendments by leave of court. E x c e p t
as provided in the next preceding section,
substantial a m e n d m e n t s may be made only upon
leave of court. But such leave may be refused if
it appears to the court that the motion was made
with intent to delay. Orders of the court upon the
matters provided in this section shall be made upon
m o t i o n filed i n c o u r t , a n d after n o t i c e t o t h e a d v e r s e
p a r t y , a n d a n o p p o r t u n i t y t o b e h e a r d . (3a)
S e c . 4. Formal amendments. A d e f e c t in t h e
designation of the parties and other clearly clerical
or typographical errors may be summarily corrected
by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is
c a u s e d t h e r e b y t o t h e a d v e r s e party. (4a)
NOTES
1. Sec. 3 of this Rule amended t h e former rule by
e l i m i n a t i n g t h e p h r a s e "or t h a t t h e cause of action or
defense is s u b s t a n t i a l l y altered." The clear import of
such a m e n d m e n t is t h a t u n d e r the new Rule "the
a m e n d m e n t may (now) s u b s t a n t i a l l y a l t e r t h e cause of
action or defense." This should only be t r u e , however,
when despite a s u b s t a n t i a l change or a l t e r a t i o n in the
cause of action or defense, the a m e n d m e n t s sought to be
made shall serve the higher interests of substantial justice,
206

RULE 10

AMENDED AND
SUPPLEMENTAL PLEADINGS

SECS. 3-4

p r e v e n t delay a n d t h u s equally promote t h e l a u d a b l e


objective of t h e Rules which is to secure a "just, speedy
and inexpensive disposition of every action and
p r o c e e d i n g " (see Valenzuela, et al. vs. CA, et al.,
G.R. No. 131175, Aug. 28, 2001). Philippine Ports
Authority vs. William Gothong, etc., Inc., G.R. No. 158401,
Jan. 28, 2008).
2.

A m e n d m e n t s are not proper and should be denied:

a. W h e r e t h e c o u r t h a s no j u r i s d i c t i o n over t h e
original complaint and the purpose of the a m e n d m e n t is
to confer j u r i s d i c t i o n on the court by e l i m i n a t i n g
the objectionable portion (Rosario, et al. vs. Carandang,
et al., 96 Phil. 845), or w h e r e t h e c a u s e of a c t i o n
originally pleaded in the complaint was outside the
jurisdiction of the court (Versoza vs. Versoza, L-25609,
Nov. 27, 1968; Campos Rueda Corporation vs. Bautista,
et al., L-18453, Sept. 29, 1982), since t h e court m u s t
first have jurisdiction over the case before it can order
such a m e n d m e n t (Caspar vs. Dorado, L-17884, Nov. 29,
1965);
b. If it would result in delay (Lerma vs. Reyes, etal.,
103 Phil. 1027; Sec. 3 of this Rule);
c. If it would result in a change of the cause of action
or defense or change t h e theory of the case (Torres vs.
Tomacruz, 49 Phil. 914; Sec. 3 of t h i s Rule), or a r e
inconsistent with the allegations in the original
complaint (Castillo, et al. vs. CA, et al., G.R. No. 52008,
Mar. 25, 1988), unless justice and equity w a r r a n t such
a m e n d m e n t which would n e g a t e d e f e n d a n t ' s liability
(R&B Insurance Co., et al. vs. Savellano, et al., L-45234,
May 8, 1985), or will not r e s u l t in s u b s t a n t i a l injury
to the adverse p a r t y (Marini-Gonzales vs. Lood, et al.,
L-35098, Mar. 16, 1987); and
d. If the plaintiff had no cause of action at the filing
of the original complaint and the purpose of the amend207

RULE 10

REMEDIAL LAW COMPENDIUM

SEC. 5

ment is to i n t r o d u c e a subsequently-accrued c a u s e of
action (Surigao Mine Exploration Co. vs. Harris, 68 Phil.
118).
3. To d e t e r m i n e w h e t h e r a different cause of action
is introduced by a m e n d m e n t s to the complaint, w h a t is
ascertained is w h e t h e r the defendant is being required to
a n s w e r for a liability or legal o b l i g a t i o n c o m p l e t e l y
different from t h a t s t a t e d i n t h e o r i g i n a l c o m p l a i n t
(Rubio vs. Mariano, et al, L-30404, Jan. 31, 1973). The
same t e s t may be applied with respect to s u p p l e m e n t a l
pleadings.
4. As earlier stated, a plaintiff may move to amend
his complaint even if the same was dismissed on motion of
the defendant provided the dismissal order is not yet final.
An order denying such motion to amend the complaint is
appealable a n d the r e g l e m e n t a r y period to perfect t h e
appeal r u n s from plaintiffs receipt of t h e order denying
his motion to amend the complaint (Constantino vs. Reyes,
supra).
S e c . 5.
Amendment to conform to or authorize
presentation of evidence. W h e n i s s u e s n o t r a i s e d by
the pleadings are tried with the express or implied
c o n s e n t o f t h e p a r t i e s , t h e y s h a l l b e t r e a t e d i n all
respects as if they had been raised in the pleadings.
Such a m e n d m e n t of the pleadings as may be
necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion
o f a n y p a r t y a t a n y t i m e , e v e n after j u d g m e n t ; but
f a i l u r e t o a m e n d d o e s n o t affect t h e r e s u l t o f t h e
trial o f t h e s e i s s u e s . I f e v i d e n c e i s o b j e c t e d t o a t
the trial on the ground that it is not within the
issues made by the pleadings, the court may allow
the pleadings to be a m e n d e d and shall do so with
liberality if the presentation of the merits of the
action and the e n d s of substantial justice will be

208

RULE 10

AMENDED AND
SUPPLEMENTAL PLEADINGS

SEC. 5

subserved thereby. The court may grant a c o n t i n u a n c e


t o e n a b l e t h e a m e n d m e n t t o b e m a d e . (5a)
NOTES
1. This is an instance wherein t h e court acquires
j u r i s d i c t i o n over t h e i s s u e s even if t h e s a m e a r e not
alleged in the original pleadings of the parties, i.e., where
t h e t r i a l of said issues is w i t h t h e e x p r e s s or implied
consent of the p a r t i e s . Also, this rule is premised on the
fact t h a t evidence had been introduced on an issue not
r a i s e d by t h e p l e a d i n g s w i t h o u t any objection by t h e
adverse p a r t y . It, therefore, does not apply when t h e
case w a s d e c i d e d on a s t i p u l a t i o n of facts in w h i c h
case t h e pleadings are not deemed amended to conform to
t h e e v i d e n c e (MWSS us. CA, et al., G.R. No. 54526,
Aug. 25, 1986).
2. One line of cases holds t h a t where the evidence
s u s t a i n s an a w a r d in excess of t h a t claimed in the
complaint, but the plaintiff failed to amend the prayer
of its complaint as to the a m o u n t of damages to conform
to the evidence, the a m o u n t demanded in the complaint
should be the m e a s u r e of damages [Malayan Insurance
Co., I n c . v s . M a n i l a P o r t S e r v i c e , e t a l . , L - 2 3 1 2 8 ,
Sept. 30, 1978; J.M. Tuason & Co. vs. Santiago, 99 Phil.
615]. There have, however, also been cases where the
S u p r e m e Court has held t h a t even w i t h o u t such
a m e n d m e n t to conform to the evidence, the amount proved
at the trial may be validly awarded [Tuazon vs. Bolanos,
91 Phil. 106]. The rule on a m e n d m e n t need not be applied
rigidly, p a r t i c u l a r l y w h e r e no s u r p r i s e or prejudice is
caused the objecting party [Co Tiamco vs. Diaz, 75 Phil.
672] and w h e r e t h e r e is a variance in the defendant's
pleadings and the evidence adduced at the trial, the court
may t r e a t t h e pleading as amended to conform to the
evidence [National Power Corp. vs. CA, et al., L-43814,
April 16, 1982].
209

RULE 10

REMEDIAL LAW COMPENDIUM

SEC. 6

Consequently, the trial court should not be precluded


from a w a r d i n g an a m o u n t higher t h a n t h a t claimed in
the pleadings notwithstanding the absence of the
required a m e n d m e n t , provided t h a t the evidence of such
h i g h e r a m o u n t has been p r e s e n t e d properly, with full
opportunity on the p a r t of the opposing p a r t i e s to support
t h e i r respective contentions and to refute each other's
evidence (Northern Cement Corp. us. IAC, et al., G.R.
No. 68636, Feb. 29, 1988).
3. Where the ejectment case was dismissed by the
inferior court and on appeal the plaintiff filed an amended
c o m p l a i n t to i n c l u d e , as a d d i t i o n a l c a u s e of a c t i o n ,
c o n t r a c t u a l b r e a c h b y t h e d e f e n d a n t w h i c h w a s not
alleged in the original complaint but on which issue the
parties had presented their respective evidence, an
amended complaint may be admitted since the a m e n d m e n t
is to make the pleadings conform to t h e evidence (Dayao
us. Shell Co. of the Phil., Ltd., et al., L-32475, April 30,
1980).
S e c . 6. Supplemental pleadings. U p o n m o t i o n
of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve
a s u p p l e m e n t a l p l e a d i n g s e t t i n g forth t r a n s a c t i o n s ,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
T h e a d v e r s e p a r t y m a y p l e a d t h e r e t o w i t h i n t e n (10)
days from notice of the order a d m i t t i n g the
s u p p l e m e n t a l p l e a d i n g . (6a)
NOTES
1. Distinctions between amended and s u p p l e m e n t a l
pleadings:
a. Amended pleadings refer to facts existing at the
time of the commencement of t h e action; s u p p l e m e n t a l

210

RULE 10

AMENDED AND
SUPPLEMENTAL PLEADINGS

SEC. 8

p l e a d i n g s refer to facts a r i s i n g after t h e filing of t h e


original pleading.
b. An amended pleading results in the w i t h d r a w a l
of the original pleading; a supplemental pleading is merely
in addition to, but does not result in the withdrawal of,
the original pleading.
c. An amended pleading can be made as of right, as
when no responsive pleading has yet been filed; supplemental pleadings are always with leave of court.
2. Unlike t h e former provision wherein the court
could r e q u i r e t h e a d v e r s e p a r t y t o p l e a d t o t h e
s u p p l e m e n t a l pleading if it deemed the same advisable,
it is now up to said p a r t y to decide w h e t h e r or not to plead
thereto, provided t h a t if he desires to plead he must observe
the r e g l e m e n t a r y period of 10 days therefor.
3. F o r c o r r e l a t i o n , Sec. 7 of t h i s Rule h a s b e e n
transposed to follow Sec. 1 thereof.
S e c . 8. Effect, of amended pleading. An a m e n d e d
pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may
be received in evidence against the pleader; and
claims or defenses alleged therein not incorporated
in the a m e n d e d pleading shall be deemed waived,
(n)
NOTES
1. The first sentence of this section states, in general,
the effect on the original pleading by the subsequent filing
of a pleading amendatory thereof. See, however, Notes 2
and 3 under Sec. 1 of this Rule for the qualifications to
and ramifications of this general rule.
2. Although the supersedure of the original pleading, upon the admission of the amended pleading, amounts
211

RULE 10

REMEDIAL LAW COMPENDIUM

SEC. 8

to the w i t h d r a w a l of the former, it is nevertheless not


expunged from b u t r e m a i n s in t h e record of t h e case.
Reference can t h e r e b y be readily m a d e t h e r e t o w i t h
r e g a r d t o t h e e f f e c t s o f t h e a m e n d m e n t , t h a t is,
(a) admissions in t h e s u p e r s e d e d pleading can still be
received in evidence against the pleader, and (b) claims
o r d e f e n s e s a l l e g e d t h e r e i n b u t not i n c o r p o r a t e d o r
r e i t e r a t e d in the amended pleading are deemed waived.
The first effect, t h a t is, the admissibility in evidence
of w h a t e v e r admission had been made by t h e p l e a d e r
t h e r e i n is in line with the rulings on judicial admissions.
It will be noted t h a t the admission made in t h a t pleading
was, before it was superseded by amendment, in the n a t u r e
of a j u d i c i a l a d m i s s i o n which does not e v e n r e q u i r e
proof a n d o r d i n a r i l y c a n n o t b e c o n t r a d i c t e d b y t h e
pleader. Despite its being superseded a n d w i t h d r a w n ,
the admissions t h e r e i n are still considered extrajudicial
admissions and may be proved by the party relying
t h e r e o n by formal offer in e v i d e n c e of s u c h o r i g i n a l
pleading. See notes u n d e r Sec. 4 of Rule 129.

212

RULE 11
W H E N TO FILE R E S P O N S I V E P L E A D I N G S
S e c t i o n 1. Answer to the complaint. T h e
d e f e n d a n t s h a l l file h i s a n s w e r t o t h e c o m p l a i n t
w i t h i n fifteen (15) d a y s after s e r v i c e o f s u m m o n s
u n l e s s a d i f f e r e n t p e r i o d is fixed by t h e c o u r t , ( l a )
S e c . 2.
Answer of a defendant foreign private
juridical entity. W h e r e t h e d e f e n d a n t is a f o r e i g n
private juridical entity and service of summons is
m a d e o n t h e g o v e r n m e n t official d e s i g n a t e d b y law
t o r e c e i v e t h e s a m e , t h e a n s w e r s h a l l b e filed w i t h i n
t h i r t y (30) d a y s after r e c e i p t o f s u m m o n s b y s u c h
e n t i t y . (2a)
NOTES
1. In the case of a nonresident defendant on whom
e x t r a t e r r i t o r i a l service of summons is made, the period to
answer m u s t be at least 60 days (Sec. 15, Rule 14).
2. The g r a n t i n g of additional time to the defendant
w i t h i n w h i c h to file an a n s w e r is a m a t t e r l a r g e l y
addressed to t h e sound discretion of the trial court (Naga
Dev. Corp. vs. CA, et al., L-28173, Sept. 30, 1971). Foreign
authorities are to the effect t h a t while courts can extend
the time for filing of responsive pleadings, they can not
shorten the time to do so (1 Martin 344, citing Aaron vs.
Anderson, 18 Ark. 268, 49 C.J. 200). This seems to be the
i n t e n d m e n t of our rules, as the p r e s e n t Rule provides
for discretion on the p a r t of the court to extend the time
or allow pleadings filed after the reglementary period,
thus
"Sec. 11. Extension of time to plead. Upon
motion and on such terms as may be just, the court
213

RULE 11

REMEDIAL LAW COMPENDIUM

SEC. 3

may e x t e n d t h e t i m e t o p l e a d p r o v i d e d i n t h e s e
Rules.
The court may also, upon like t e r m s , allow an
a n s w e r or other pleading to be filed after the time
fixed by these Rules. (8a)"
It is believed, however, t h a t the discretion of the court
to admit pleadings filed after the reglementary period has
expired does not extend to the steps necessary to perfect
an appeal which must all be done within the reglementary
period, unless prior to its expiration an extension has been
sought and granted on justifiable grounds.
3. A motion for extension of time to file an a n s w e r
may be heard and granted ex parte (Amante us. Sunga,
L-40491, May 28, 1975).
4. An order allowing the filing of a late a n s w e r is
i n t e r l o c u t o r y a n d n o t a p p e a l a b l e (De Ocampo us.
Republic, L-19533, Oct. 31, 1963).
S e c . 3.
Answer to amended complaint. W h e r e
t h e p l a i n t i f f files a n a m e n d e d c o m p l a i n t a s a m a t t e r
of right, the defendant shall a n s w e r the same within
f i f t e e n (15) d a y s a f t e r b e i n g s e r v e d w i t h a c o p y
thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
w i t h i n t e n (10) d a y s from n o t i c e o f t h e o r d e r
a d m i t t i n g t h e s a m e . A n a n s w e r e a r l i e r filed m a y
serve as the answer to the amended complaint if no
n e w a n s w e r i s filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
a m e n d e d third (fourth, etc.)-party complaint, and
a m e n d e d c o m p l a i n t - i n - i n t e r v e n t i o n . (3a)

214

RULE 11

WHEN TO FILE
RESPONSIVE PLEADINGS

SEC. 3

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

215

RULE 11

REMEDIAL LAW COMPENDIUM

SECS. 4-6, 6

simplified by the aforesaid a m e n d m e n t s , and h a s been


extended in application to the answer to other amended
initiatory pleadings. See Sec. 7 of this Rule with respect
to a supplemental complaint.
S e c . 4. Answer to counterclaim or cross-claim. A
counterclaim or cross-claim must be answered
w i t h i n t e n (10) d a y s from s e r v i c e . (4)
S e c . 6. Answer to third (fourth, etc.)-party complaint. T h e t i m e to a n s w e r a t h i r d ( f o u r t h , etc.)party complaint shall be governed by the same rule
a s t h e a n s w e r t o t h e c o m p l a i n t . (5a)
NOTES
1 . J u s t a s p r o v i d e d i n R u l e 6, t h e t h i r d - p a r t y
d e f e n d a n t s h a l l file his a n s w e r a l l e g i n g t h e r e i n h i s
defenses and his counterclaims and cross-claims against
the plaintiff, t h e third-party plaintiff or any other party;
and he may a s s e r t such defenses as the t h i r d - p a r t y
plaintiff may have a g a i n s t the p l a i n t i f f s claim.
2. The t h i r d - p a r t y defendant is served with
s u m m o n s j u s t like the original defendant, hence he also
h a s 15, 30 or 60 days from service of s u m m o n s , as the
case may be, to file his a n s w e r j u s t like t h e o r i g i n a l
defendant.
S e c . 6. Reply. A r e p l y m a y be filed w i t h i n t e n
(10) d a y s f r o m s e r v i c e o f t h e p l e a d i n g r e s p o n d e d
to. (6)
NOTES
1. This section uses the word "may" as it is ordinarily
optional for a p a r t y to file a reply since, by his failure to
do so, all t h e new m a t t e r s alleged in t h e a n t e c e d e n t
216

RULE 11

WHEN TO FILE
RESPONSIVE PLEADINGS

SEC. 6

pleading a r e deemed controverted. However, if he elects


to file a reply, he m u s t observe the above period.
2. Where the last day of the reglementary period
falls on a Sunday or holiday, the pleading may be filed
or t h e r e q u i r e d a c t may be d o n e on t h e s u c c e e d i n g
business day. Although pleadings may also be served
and filed by mail (Sec. 3, Rule 13), it has been held t h a t
even if the B u r e a u of Posts and its branches are open
on a holiday which is the last day for filing a pleading,
such pleading may still be filed on the next day (Galang
us. WCC, et al., L-33928, Mar. 29, 1972).
3. In the computation of the reglementary period,
especially if it is i n t e r r u p t e d by the filing of a pleading,
t h e d a t e w h e n t h e p l e a d i n g is filed a n d t h e d a t e of
receipt of the j u d g m e n t or order thereon are to be
excluded. Thus, when the motion for reconsideration of
a j u d g m e n t is filed on the 15th or last day within which
to perfect the appeal, t h a t day should be excluded and
t h e p a r t y still h a s one day to perfect an a p p e a l . The
filing of said motion and the pendency thereof suspends
t h e r u n n i n g of t h e r e g l e m e n t a r y period, u n l e s s said
motion is pro forma. W h e r e , t h e r e a f t e r , an o r d e r is
received d e n y i n g said motion for reconsideration, the
date of such receipt is also not considered in the computation. Thus, excluding such date of receipt and there
being a balance of one day of the reglementary period,
the appeal can be perfected on the working day following
t h e day of r e c e i p t of t h e d e n i a l o r d e r . T h i s r u l i n g
clarifies and sets aside the doctrines in Federal Films,
Inc. us. Judge of First Instance of Manila [78 Phil. 472]
and Taroma us. Cruz, et al. [68 Phil. 281] (Lloren us. De
Veyra, L-13929, Mar. 28, 1962).
The aforesaid doctrine in Lloren was reiterated and
d e c l a r e d a p p l i c a b l e w h e t h e r t h e motion for reconsideration is filed days before or on the last day of the
reglementary period. Where such motion is filed, say,
217

RULE 11

REMEDIAL LAW COMPENDIUM

SEC. 7

2 d a y s before t h e end of t h e r e g l e m e n t a r y period of


appeal, the date of filing shall be added to the remaining
days of the period. As already stated, the pendency of
s u c h m o t i o n shall be deducted from, since it suspends, the
r e g l e m e n t a r y p e r i o d u n l e s s i t fails t o s a t i s f y t h e
r e q u i r e m e n t s of Rule 37 (Sec. 2). If t h e m o t i o n is
thereafter denied, the 3 remaining days of the period shall
s t a r t to r u n again on the day after the receipt of the order
d e n y i n g t h e motion (De las Alas, et al. vs. CA, et al.,
L-38006, May 16, 1978; Mayor vs. IAC, et al., G.R.
No. 74410, May 4, 1988).
S e c . 7. Answer to supplemental complaint. A
supplemental complaint may be answered within
t e n (10) d a y s from n o t i c e o f t h e o r d e r a d m i t t i n g t h e
s a m e , u n l e s s a d i f f e r e n t p e r i o d is fixed by t h e c o u r t .
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
s u p p l e m e n t a l a n s w e r i s filed, (n)
NOTE
1. This is a new provision which remedies the oversight in the old Rule which did not provide for an a n s w e r
to a s u p p l e m e n t a l c o m p l a i n t a l t h o u g h t h e a l l e g a t i o n s
t h e r e i n may very well n e c e s s i t a t e the a p p r o p r i a t e
r e s p o n s e , clarification or denial. Since t h e filing of a
s u p p l e m e n t a l complaint requires leave of court, the
procedure for filing an a n s w e r t h e r e t o is similar to the
case of an a m e n d e d complaint the filing of which is not
a m a t t e r of r i g h t , h e n c e l i k e w i s e r e q u i r i n g l e a v e of
court therefor (see 2nd par., Sec. 3 of the Rule). However,
unlike t h e l a t t e r , t h e court may fix a different period
for a n s w e r i n g the s u p p l e m e n t a l complaint in lieu of t h e
r e g l e m e n t a r y 10-day p e r i o d . T h e difference m a y be
ascribed to t h e fact t h a t in an amended complaint, the
facts s o u g h t to be i n c o r p o r a t e d t h e r e i n w e r e a l r e a d y

218

RULE 11

WHEN TO FILE
RESPONSIVE PLEADINGS

SECS. 8-11

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


all probability, were likewise known to the defending
party. The supplemental complaint, on the other hand,
seeks the introduction of facts or events which occurred
or supervened after the filing of the original complaint,
h e n c e , for lack of k n o w l e d g e thereof, t h e d e f e n d i n g
party may need a longer period of time to ascertain and
respond to the allegations thereof.
S e c . 8. Existing counterclaim
c o m p u l s o r y c o u n t e r c l a i m or a
defending party has at the time
s h a l l be c o n t a i n e d t h e r e i n . (8a,

or cross-claim. A
cross-claim that a
h e files h i s a n s w e r
R6)

S e c . 9.
Counterclaim or cross-claim arising after
answer. A c o u n t e r c l a i m or a c r o s s - c l a i m w h i c h
either m a t u r e d or w a s acquired by a party after
serving his pleading may, with the permission of
t h e c o u r t , be p r e s e n t e d as a c o u n t e r c l a i m or a c r o s s c l a i m b y s u p p l e m e n t a l p l e a d i n g before j u d g m e n t .
(9, R6)
S e c . 10.
Omitted counterclaim or cross-claim.
When a p l e a d e r fails to s e t up a c o u n t e r c l a i m or a
cross-claim through oversight, inadvertence, or
e x c u s a b l e n e g l e c t , o r w h e n j u s t i c e r e q u i r e s , h e may,
by leave of court, set up the counterclaim or crossc l a i m by a m e n d m e n t before j u d g m e n t . (3a, R9)
S e c . 11. Extension of time to plead. U p o n
motion and on such terms as may be just, the court
may e x t e n d the time to plead provided in t h e s e
Rules.
The c o u r t m a y a l s o , u p o n like t e r m s , a l l o w a n
a n s w e r o r o t h e r p l e a d i n g t o b e filed after t h e t i m e
fixed by t h e s e R u l e s . (7)

219

RULE 11

REMEDIAL LAW COMPENDIUM

SECS. 8-11

NOTES
1. Sec. 11 is c o m m e n t e d on in t h e n o t e s u n d e r
Sec. 2 of this Rule.
2. See t h e discussion in t h e notes u n d e r Sees. 6
and 7 of Rule 6 which point out t h a t an after-acquired
c o u n t e r c l a i m or cross-claim may be set up by filing a
s u p p l e m e n t a l pleading, while an omitted counterclaim or
cross-claim may be raised in an amended pleading
p u r s u a n t to and u n d e r the conditions in Sees. 9 and 10 of
this Rule.
It is also noted t h e r e i n t h a t a counterclaim or crossc l a i m n e e d n o t be a n s w e r e d if it is b a s e d on or is
inseparable from the defenses raised by the opposing party,
or merely allege t h e opposite of the facts in t h e complaint.
Also, w h e r e the counterclaim or cross-claim is only for
d a m a g e s or a t t o r n e y ' s fees arising from the filing of the
complaint, it need not be answered. These doctrines also
apply to after-acquired or omitted counterclaims and crossclaims subsequently allowed by the court to be filed in the
action.

220

R U L E 12
BILL OF PARTICULARS
S e c t i o n 1. When applied for; purpose. B e f o r e
r e s p o n d i n g to a p l e a d i n g , a p a r t y m a y m o v e for a
m o r e d e f i n i t e s t a t e m e n t or for a bill of p a r t i c u l a r s
of any matter which is not averred with sufficient
definiteness or particularity to enable him properly
to prepare his responsive pleading. If the pleading
is a r e p l y , t h e m o t i o n m u s t be filed w i t h i n t e n (10)
d a y s f r o m s e r v i c e thereof. S u c h m o t i o n s h a l l p o i n t
o u t t h e d e f e c t s c o m p l a i n e d of, t h e p a r a g r a p h s
wherein they are contained, and the details desired,
(la)
NOTES
1. U n d e r this revised Rule, the purpose of a bill of
p a r t i c u l a r s is to enable the defending party to properly
p r e p a r e his responsive pleading. Under the former
formulation, the other purpose was supposedly to
e n a b l e h i m "to p r e p a r e for t r i a l , " b u t t h a t s t a t e m e n t
has been eliminated for being inaccurate. Besides, there
are other and more proper remedies or modes of discovery
whereby a party may c h a r t his course of action for the
prospective trial.
2. W h a t m a y be c o n s i d e r e d as a r a t i o n a l e for
r e q u i r i n g a bill of p a r t i c u l a r s in proper cases is t h a t ,
while p l e a d i n g s s h o u l d be liberally c o n s t r u e d with a
view to s u b s t a n t i a l justice, courts should not be left to
conjecture in the determination of the issues submitted
by the l i t i g a n t s . Where the pleading is vague and
uncertain, courts should not be led to the commission of
error or injustice by exploring in the midst of uncertainty
a n d d i v i n i n g t h e i n t e n t i o n o f t h e p a r t i e s from t h e

221

RULE 12

REMEDIAL LAW COMPENDIUM

SECS. 2-4

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


Costa, et al., 63 Phil. 445).
3. The g r a n t i n g of a motion for a bill of p a r t i c u l a r s
lies w i t h i n t h e s o u n d d i s c r e t i o n of t h e c o u r t a n d its
r u l i n g will not be reversed u n l e s s t h e r e w a s palpable
abuse of discretion or it was a clearly erroneous order.
Thus, the S u p r e m e Court refused to disturb the order of
the t r i a l court dismissing the complaint where plaintiff
refused to submit a bill of p a r t i c u l a r s despite the court's
order therefor, it a p p e a r i n g t h a t the allegations on the
cause of action were in t h e n a t u r e of legal conclusions
w h i c h s h o u l d h a v e b e e n c l a r i f i e d b y u l t i m a t e facts
(Santos vs. Liwag, L-24238, Nov. 28, 1980).
S e c . 2. Action by the court. U p o n t h e filing of
the motion, the clerk of court must immediately
bring it to the attention of the court which may
either deny or grant it outright, or allow the parties
t h e o p p o r t u n i t y t o b e h e a r d , (n)
S e c . 3. Compliance with order. If t h e m o t i o n is
g r a n t e d , e i t h e r i n w h o l e o r i n part, t h e c o m p l i a n c e
t h e r e w i t h m u s t b e e f f e c t e d w i t h i n t e n (10) d a y s from
n o t i c e of t h e o r d e r , u n l e s s a d i f f e r e n t p e r i o d is fixed
by t h e court. The bill of p a r t i c u l a r s or a more
d e f i n i t e s t a t e m e n t o r d e r e d b y t h e c o u r t m a y b e filed
e i t h e r in a separate or in an a m e n d e d pleading,
s e r v i n g a c o p y t h e r e o f o n t h e a d v e r s e p a r t y , (n)
S e c . 4. Effect of non-compliance. If t h e o r d e r is
not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of
the pleading or the portions thereof to which the
order was directed or make such other order as it
deems just. (l[c]a)

222

RULE 12

BILL OF PARTICULARS

SECS. 5-6

NOTES
1. These new or amended provisions spell out the
mechanics involved in the obtention of a bill of p a r t i c u l a r s
and t h e sanctions for non-compliance therewith. Judicial
experience shows t h a t r e s o r t to a motion for a bill of
p a r t i c u l a r s is sometimes actually intended for delay or,
even if not so i n t e n d e d , n o n e t h e l e s s r e s u l t s in delay
since t h e r e g l e m e n t a r y period for filing a r e s p o n s i v e
pleading is suspended and the subsequent exchanges
are likewise set back in the m e a n t i m e .
2. Sec. 3 is a new provision which is i n t e n d e d to
clarify how a bill of p a r t i c u l a r s may be filed, t h a t is,
through e i t h e r a s e p a r a t e or an amended pleading. Thus,
the former provision in Sec. 1(b) of the old Rule t h a t a
bill of p a r t i c u l a r s "shall be g o v e r n e d by t h e r u l e s of
pleading and the original shall be filed with the clerk of
court" h a s been eliminated in the reproduction of t h a t
former provision as Sec. 6 of the p r e s e n t Rule.
Said Sec. 3 further makes it clear t h a t the motion for
a bill of p a r t i c u l a r s may be granted in whole or in p a r t
as not all t h e allegations questioned by the movant are
necessarily so ambiguous as to require clarification.
S e c . 5. Stay of period to file responsive pleading.
After s e r v i c e of t h e bill of p a r t i c u l a r s or of a m o r e
definite pleading, or after notice of denial of his
m o t i o n , t h e m o v i n g p a r t y m a y file h i s r e s p o n s i v e
pleading within the period to which he was entitled
a t t h e t i m e o f f i l i n g h i s m o t i o n , w h i c h s h a l l not b e
l e s s t h a n five (5) d a y s i n a n y e v e n t . ( l [ b ] a )
S e c . 6. Bill a part of pleading. A b i l l of
p a r t i c u l a r s b e c o m e s part o f t h e p l e a d i n g for w h i c h
it is i n t e n d e d . ( l [ a ] a )

223

RULE 12

REMEDIAL LAW COMPENDIUM

SECS. 5-6

NOTES
1. As understood u n d e r Sec. 1 of this Rule, a motion
for a b i l l of p a r t i c u l a r s m u s t be filed w i t h i n t h e
r e g l e m e n t a r y p e r i o d for t h e filing of a r e s p o n s i v e
p l e a d i n g to t h e p l e a d i n g s o u g h t to be clarified. T h i s
contemplates pleadings which are required by the Rules
to be a n s w e r e d u n d e r pain of procedural sanctions,
s u c h as default or implied a d m i s s i o n of t h e facts not
responded to. A special provision regarding a vague reply
is included in Sec. 1, t h a t is, t h a t a motion for a bill of
p a r t i c u l a r s directed to a reply m u s t be filed within 10
days, since a responsive pleading is not required for a
reply as, in fact, the filing of the reply itself is optional
or permissive (see Sec. 6, Rule 11 and notes thereon).
2. This specification of a reply took t h e place of the
former provision which merely provided for t h a t 10-day
period if t h e p l e a d i n g s o u g h t to be clarified is one to
which "no r e s p o n s i v e p l e a d i n g is p e r m i t t e d by t h e s e
rules." T h a t is in itself correct but may be susceptible of
m i s u n d e r s t a n d i n g since t h e r e are other pleadings evolved
and sanctioned by practice as responsive pleadings,
which are of American vintage but not expressly provided
for in our Rules.
T h u s , after the reply, t h e r e can be a rejoinder with
a sur-rejoinder and t h e n a r e b u t t e r with a s u r - r e b u t t e r .
If t h e s e s u b s e q u e n t pleadings are allowed by the court,
as responsive pleadings which a r e not r e q u i r e d b u t at
least authorized, t h e n it would be logical for it to fix a
period for t h e filing of a motion for a bill of p a r t i c u l a r s
whenever the s a m e is necessary to make more definite
the allegations in said pleadings.
3. Judicial experience, however, reveals t h a t resort
to t h e filing of rejoinders a n d s u r - r e j o i n d e r s or o t h e r
s u b s e q u e n t pleadings were often resorted to for dilatory
purposes, with the parties intentionally leaving incomplete
224

RULE 12

BILL OF PARTICULARS

SECS. 5-6

their a n t e c e d e n t pleadings in order to justify the g r a n t of


leave to file said s u b s e q u e n t pleadings.
Consequently, the S u p r e m e Court resolved in A. M.
No. 99-2-04-SC to d i s p e n s e w i t h r e j o i n d e r s a n d to
s u b s t i t u t e a different procedure to subserve the purpose
of affected p a r t i e s on a more meaningful and productive
process designed to enhance and expedite judicial action
on t h e case (see Appendix R).
4. The filing of a motion for a bill of p a r t i c u l a r s
i n t e r r u p t s t h e time to plead, b u t only if it is sufficient in
form a n d s u b s t a n c e . F u r t h e r m o r e , t h e motion m u s t
comply with Sees. 4 and 5, Rule 15 on the service and
contents of t h e notice of motions (Filipinos Fabricators &
Sales, Inc. vs. Magsino, et al., L-47574, Jan. 29, 1988),
which provisions have been substantially reproduced in
the p r e s e n t revised Rule 15.
5. If t h e motion is g r a n t e d , t h e m o v a n t can w a i t
until the bill of particulars is served on him by the opposing
p a r t y a n d t h e n he will h a v e the b a l a n c e of the
r e g l e m e n t a r y period within which to file his responsive
pleading. If his motion is denied, he will still have such
balance of the r e g l e m e n t a r y period to do so, counted from
service of t h e order denying his motion. In either case, he
will have at least 5 days to file his responsive pleading.
6. Regarding the availability and the role of a bill
of p a r t i c u l a r s in criminal cases, see Sec. 9, Rule 116 and
the notes thereon.

225

RULE 13
FILING A N D SERVICE OF P L E A D I N G S ,
J U D G M E N T S A N D OTHER P A P E R S
S e c t i o n 1.
t h e f i l i n g o f all
as the service
different mode

Coverage. T h i s R u l e s h a l l g o v e r n
pleadings and other papers, as well
t h e r e o f , e x c e p t t h o s e for w h i c h a
o f s e r v i c e i s p r e s c r i b e d , (n)

S e c . 2. Filing and service, defined. F i l i n g is t h e


act of presenting the pleading or other paper to the
clerk of court.
S e r v i c e is t h e a c t of p r o v i d i n g a p a r t y w i t h a
copy of the pleading or paper concerned. If any
party has appeared by counsel, service upon h i m
shall be made upon his counsel or one of them,
unless service upon the party himself is ordered by
t h e c o u r t . W h e r e o n e c o u n s e l a p p e a r s for s e v e r a l
parties, he shall only be entitled to one copy of any
p a p e r s e r v e d u p o n h i m b y t h e o p p o s i t e s i d e . (2a)
NOTES
1. It is t h e d u t y of counsel to a d o p t a n d strictly
m a i n t a i n a system t h a t efficiently t a k e s into account all
court notices s e n t to him. His failure to do so c a n n o t
excuse him from the consequences of his non-receipt of
court notices (Babala vs. CA, et al., L-23065, Feb. 16,
1970; Republic vs. Arro, et al., L-48241, June 11, 1987;
Antonio, et al. vs. CA, et al., G.R. No. 77656, Aug. 31,
1987). An a t t o r n e y of record m u s t notify t h e court of his
change of a d d r e s s . The fact t h a t counsel used a different
a d d r e s s in later pleadings does not constitute the notice
r e q u i r e d for i n d i c a t i n g his c h a n g e of a d d r e s s (Phil.
Suburban Dev. Corp. vs. CA, et al., L-33448, Sept. 17,
1980). See also Sec. 3, Rule 7 and t h e notes t h e r e u n d e r .
226

RULE 13

FILING AND SERVICE OF PLEADINGS,


JUDGMENTS AND OTHER PAPERS

SECS 1-2

2. Notice given to a p a r t y who is duly r e p r e s e n t e d


by counsel is a nullity (Inocando vs. Inocando, 110 Phil.
266; Elli vs. Ditan, L-17444, June 30, 1962; Republic vs.
Arro, et al., supra; Antonio, et al. vs. CA, et al., supra),
unless service thereof on t h e party himself was ordered
by the court or t h e technical defect was waived (National
Lumber & Hardware Co. vs. Manaois, 106 Phil. 1098;
Jalover vs. Ytoriaga, L-35989, Oct. 29, 1977; De Leon vs.
CA, et al, G.R. No. 138884, June 6, 2002).
3. Where notice of t h e decision was served on the
receiving station at t h e ground floor of the defendant's
company building, and received much later at the office
of its legal counsel on t h e n i n t h floor of said building,
which was his a d d r e s s of record, service of said decision
takes effect from said later receipt at t h e aforesaid office
of i t s l e g a l c o u n s e l (PLDT vs. NLRC, et al, G.R.
No. 60050, Mar. 26, 1984). However, where counsel who
had t h e i r office on t h e t h i r d floor of t h e building had
v i r t u a l l y a c q u i e s c e d to service of p l e a d i n g s on t h e m
t h r o u g h a corporation on the ground floor of the building
by not objecting to previous service t h r o u g h the latter,
s u b s e q u e n t service in such m a n n e r is valid (PCIB vs.
Ortiz, et al., L-49223, May 29, 1987).
4. Where a p a r t y is represented by more t h a n one
counsel of record, service of notice on any of the l a t t e r is
sufficient (Damasco vs. Arrieta, L-18879, Jan. 31, 1963).
Service on counsel of record is notice to the party unless
the irresponsibility of such counsel denies the p a r t y of
his day in c o u r t (PHHC vs. Tiongco, et al., L-18891,
Nov. 28, 1964).
5. In c r i m i n a l cases, notice to t h e prosecution is
made on the fiscal and the private prosecutor is deemed
constructively notified thereof (Buro vs. Montesa, et al.,
87 Phil. 245). The court, of course, could also cause a
copy thereof to be served on said private prosecutor.

227

RULE 13

REMEDIAL LAW COMPENDIUM

SEC. 3

S e c . 3. Manner of filing. T h e f i l i n g of p l e a d ings, appearances, motions, notices, orders,


j u d g m e n t s a n d all o t h e r p a p e r s s h a l l b e m a d e b y
p r e s e n t i n g the original copies thereof, plainly
indicated as such, personally to the clerk of court
or by s e n d i n g t h e m by r e g i s t e r e d m a i l . In t h e first
c a s e , t h e c l e r k o f c o u r t shall e n d o r s e o n t h e p l e a d i n g
t h e d a t e a n d h o u r o f filing. I n t h e s e c o n d c a s e , t h e
date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as s h o w n by
t h e p o s t office s t a m p o n t h e e n v e l o p e o r t h e r e g i s t r y
receipt, shall be considered as the date of their
filing, p a y m e n t , o r d e p o s i t i n c o u r t . T h e e n v e l o p e
shall be attached to the record of the case, (la)
NOTES
1. The clerk shall keep a general docket, each page
of which shall be n u m b e r e d and p r e p a r e d for receiving
all t h e e n t r i e s in a single case and shall e n t e r t h e r e i n all
cases, n u m b e r e d consecutively in the order in which they
were received and, u n d e r t h e heading of each case and
a complete title thereof, t h e date of each p a p e r filed or
issued, of each order or j u d g m e n t e n t e r e d , and of each
o t h e r step t a k e n in t h e case, so t h a t by reference to a
single page the history of the case may be seen (Sec. 8,
Rule 136).
2. U n d e r t h i s s e c t i o n , filing by m a i l s h o u l d be
t h r o u g h the registry service which is made by deposit of
t h e p l e a d i n g in t h e post office, a n d not t h r o u g h o t h e r
m e a n s of t r a n s m i s s i o n . T h u s , the date of delivery of the
p l e a d i n g s to a p r i v a t e l e t t e r - f o r w a r d i n g agency or
p r i v a t e c a r r i e r , e v e n if l i c e n s e d to act as s u c h w i t h
r e s p e c t to o t h e r a r t i c l e s , is not a recognized mode of
filing p l e a d i n g s which can only be done t h r o u g h t h e
Philippine G o v e r n m e n t Post Office or its postal agencies.
If a p r i v a t e carrier is availed of by the party, the d a t e of
228

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JUDGMENTS AND OTHER PAPERS

SECS 4-5 6

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


date of delivery to the carrier, is deemed to be the date of
the filing of t h a t pleading (Benguet Electric Cooperative,
Inc. vs. NLRC, et al., G.R. No. 89070, May 18, 1992;
Industrial Timber Corp. vs. NLRC, et al., G.R. No. 111985
June 30, 1994).
S e c . 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading
subsequent to the complaint, written motion, notice,
a p p e a r a n c e , d e m a n d , offer o f j u d g m e n t o r s i m i l a r
p a p e r s s h a l l b e filed w i t h t h e c o u r t s a n d s e r v e d
u p o n t h e p a r t i e s a f f e c t e d . (2a)
S e c . 5. Modes of service. S e r v i c e of p l e a d i n g s ,
motions, notices, orders, judgments and other
p a p e r s s h a l l b e m a d e e i t h e r p e r s o n a l l y o r b y mail.
(3a)
NOTE
1. Aside from personal service or by mail, service of
p l e a d i n g s may also be effected by s u b s t i t u t e d service
(Sec. 8) and j u d g m e n t s , final orders or resolutions may
be served by publication (Sec. 9), but the last mode is
proper only w h e r e t h e s u m m o n s on the defendant had
also been served by publication.
S e c . 6. Personal service. S e r v i c e of t h e p a p e r s
m a y be m a d e by d e l i v e r i n g p e r s o n a l l y a c o p y to t h e
p a r t y or h i s c o u n s e l , or by l e a v i n g it in h i s office
with his clerk or with a person having charge
thereof. If no p e r s o n is f o u n d in h i s office, or h i s
office i s n o t k n o w n , o r h e h a s n o office, t h e n b y
leaving the copy, between the hours of eight in
t h e m o r n i n g a n d six i n t h e e v e n i n g , a t t h e party's
or c o u n s e l ' s r e s i d e n c e , if k n o w n , w i t h a p e r s o n of

229

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SEC 7

sufficient age and discretion then residing therein.


(4a)
NOTE
1. This section has been a m e n d e d to include the
situation where counsel has no office, and not only where
his office is u n k n o w n or t h e r e is no person in c h a r g e
thereof. U n d e r such circumstances, service may be made
not only at the residence of the party he r e p r e s e n t s but,
now, also at counsel's residence, it being a s s u m e d t h a t
his residence is also used by him as his office. In any of
said cases, this section now requires t h a t if not served
on either the party or counsel personally therein,
service should be made not only on a person of sufficient
discretion but likewise of sufficient age a n d who m u s t
further be actually residing therein. The additional age
r e q u i r e m e n t is intended to make it easier to a s c e r t a i n
w h e t h e r t h e person to whom the pleading was e n t r u s t e d
is one with sufficient discretion. Also, t h e r e q u i r e m e n t
t h a t he should be a r e s i d e n t t h e r e i n is to obviate t h e
possibility or t h e p r e t e x t t h a t service was made only on a
visitor or any person who happened to be in the residence
for a t r a n s i e n t or t e m p o r a r y purpose.
S e c . 7. Service by mail. S e r v i c e by r e g i s t e r e d
mail shall be made by depositing the copy in the
p o s t office, i n a s e a l e d e n v e l o p e , p l a i n l y a d d r e s s e d
t o t h e p a r t y o r h i s c o u n s e l a t h i s office, i f k n o w n ,
otherwise at his residence, if known, with postage
fully pre-paid, and with i n s t r u c t i o n s to the
p o s t m a s t e r t o r e t u r n t h e m a i l t o t h e s e n d e r after
t e n (10) d a y s i f u n d e l i v e r e d . I f n o r e g i s t r y s e r v i c e i s
available in the locality of either the sender or the
a d d r e s s e e , s e r v i c e m a y b e d o n e b y o r d i n a r y mail.
(5a) (As amended by Resolution of the Supreme Court,
dated Feb. 17, 1998)

230

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SECS 8-9

NOTE
1.

See Note 2 u n d e r Sec. 6, Rule 11.

S e c . 8. Substituted service. If s e r v i c e of
pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two
p r e c e d i n g s e c t i o n s , t h e office a n d p l a c e o f r e s i d e n c e
of the party or his counsel being unknown, service
may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service
and service by mail. The service is complete at the
t i m e o f s u c h d e l i v e r y . (6a)
NOTES
1. Where t h e counsel of record h a s not w i t h d r a w n
as s u c h , service of t h e j u d g m e n t on his wife at t h e i r
residence is valid personal service (Cubar vs. Mendoza,
G.R. No. 55035, Feb. 23, 1983).
2. "Substituted service" as applied to pleadings in
the above section h a s a different meaning from "substituted service" as applied to summons, Rule 14 providing
as follows:
"Sec. 7. Substituted service. If, for j u s t i f i a b l e
causes, the defendant cannot be served within a
r e a s o n a b l e t i m e as provided in t h e p r e c e d i n g section,
s e r v i c e m a y be effected (a) by l e a v i n g copies of t h e
s u m m o n s at t h e defendant's dwelling house or residence
w i t h some p e r s o n of s u i t a b l e age a n d discretion t h e n
r e s i d i n g t h e r e i n , o r (b) b y l e a v i n g t h e c o p i e s a t
defendant's office or regular place of business with some
competent person in charge thereof. (8a)"
S e c . 9. Service of judgments, final orders or resolutions. J u d g m e n t s , final o r d e r s or r e s o l u t i o n s s h a l l

231

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SEC. 9

be served either personally or by registered mail.


W h e n a p a r t y s u m m o n e d b y p u b l i c a t i o n h a s failed
t o a p p e a r i n t h e a c t i o n , j u d g m e n t s , final o r d e r s o r
resolutions against him shall be served upon h i m
also by publication at the expense of the prevailing
p a r t y . (7a)
NOTES
1. A judgment or final order served by ordinary mail
does not become executory since the service is fatally
defective (Vda. de Espiritu vs. CFI of Cavite, et al.,
L-30486, Oct. 31, 1972).
P e r s o n a l s e r v i c e of s u c h
judgment upon the party, instead of his counsel of record,
is not permitted. Also, where a copy of the decision is
served on a person who was neither a clerk nor one in
charge of the attorney's office, such service is invalid and
the decision did not thereafter become executory (Tuazon,
et al. vs. Molina, et al., G.R. No. 55697, Feb. 26, 1981).
2. The mere notation in the rollo that a copy of the
resolution was sent to counsel, absent a showing of his
receipt thereof, does not constitute proof of service (Soria
vs. CA, L-36378, April 7, 1976).
3. For constructive service by registered mail, there
must be conclusive proof that a first notice by the postmaster to the addressee was received. The presumption
that official duty has been performed does not apply
(ITT Philippines, Inc. vs. CA, et al., L-30810, Oct. 29,
1975; Barrameda vs. Castillo, L-27211, July 6, 1977;
Elane vs. CA, et al., G.R. No. 80638, April 26, 1989). If,
however, the postmaster certifies that such notice was
sent, the presumption arises and overrides the contrary
claim of the addressee (Ferraren vs. Santos, L-41323,
April 27, 1980). Where the delivery of the first notice
was not made because the "addressee was unlocated,"
there is no s u b s t i t u t e d service (Arines vs. Cuachin,
L-30014, July 31, 1978).
But w h e r e a copy of the
232

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FILING AND SERVICE OF PLEADINGS


JUDGMENTS AND OTHER PAPERS

decision w a s s e n t to counsel at his address of record


but the s a m e w a s not received because he moved to
another address without informing the court thereof,
such omission or neglect will not stay the finality of the
decision (Magno, et al. vs. CA, et al., G.R. No. 58781
July 31, 1987).
4. Judgments, final orders or final resolutions can
be served only under the three modes authorized in this
section, t h a t is, personally, by registered mail or by
p u b l i c a t i o n . T h e y c a n n o t be s e r v e d by s u b s t i t u t e d
service. With respect to service by publication, the rule
is that resort thereto is proper only where summons was
likewise served by publication, and this can result in
practical problems especially in the appellate courts. If,
for i n s t a n c e , it h a s b e e n a s c e r t a i n e d t h a t a party's
counsel is dead or has permanently left the country and
withdrawn from the case without a substitute counsel
having entered his appearance, and the whereabouts of
the party represented by him can neither be ascertained
nor the fact thereof obtained from the opposing party,
and s u m m o n s in t h a t case had not b e e n s e r v e d by
publication, then service of the judgment by publication
is not authorized and would not be valid. As just stated,
substituted service can not be availed of. The logical
solution would be to authorize the trial court to effect
service of the judgment by publication, otherwise entry
and execution of that judgment would be void.
5. What is authorized or required to be served by
publication under the third mode in this section is the
judgment, final order or resolution. To avoid absurd or
impractical results, only the dispositive portion or the
fallo should be required to be published, and not the
entire text of the decision or resolution which may be
v o l u m i n o u s and w i l l e n t a i l s u b s t a n t i a l publication
expenses. In other words, the term "judgment" must be
that contemplated in Rule 36. The prevailing party
233

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SEC. 10

may, for r e a s o n s of his own, c a u s e t h e p u b l i c a t i o n of


t h e whole decision since after all t h e s a m e shall be at
his expense.
S e c . 10. Completeness of service. P e r s o n a l
service is complete upon actual delivery. Service
by ordinary mail is complete upon the expiration
o f t e n (10) d a y s a f t e r m a i l i n g , u n l e s s t h e c o u r t
otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee, or
a f t e r five (5) d a y s f r o m t h e d a t e h e r e c e i v e d t h e
first n o t i c e of t h e p o s t m a s t e r , w h i c h e v e r date is
e a r l i e r . (8a)
NOTES
1. This section, as a m e n d e d , now provides for 10
days, i n s t e a d of t h e former 5 days, for completeness of
service by ordinary mail. For service by registered mail,
t h e completeness thereof is now reckoned from t h e d a t e
of a c t u a l r e c e i p t of t h e first notice of t h e p o s t m a s t e r ,
unless t h e r e g i s t e r e d mail w a s received prior t h e r e t o .
2. The rule on completeness of service by registered
m a i l only p r o v i d e s for a d i s p u t a b l e p r e s u m p t i o n a n d
may, therefore, be r e b u t t e d (Cabuang vs. Bello, 105 Phil.
1135). For t h e r u l e to apply, service m u s t h a v e b e e n
m a d e on t h e counsel de parte (Fojas vs. Navarro, L-26365,
April 30, 1970) a n d if it w a s s e n t to his a d d r e s s of record
a n d he fails to receive it for c a u s e s i m p u t a b l e to him,
t h e service becomes final a n d it is not necessary to effect
f u r t h e r service upon t h e p a r t y he r e p r e s e n t s (Magno,
et al. vs. CA, et al., supra).
3. Service of notice by r e g i s t e r e d m a i l c a n n o t be
avoided by counsel's refusal to accept delivery after
n o t i f i c a t i o n thereof, a n d n o t i c e i s d e e m e d c o m p l e t e
r e g a r d l e s s of such refusal to accept (Isaac vs. Mendoza,

234

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89 Phil.

FILING AND SERVICE OF PLEADINGS


JUDGMENTS AND OTHER PAPERS

SECS 11-12

279).

4. When the post office certifies to the delivery of


registered mail, such certification should include data as
t o w h e n , how and t o w h o m d e l i v e r y w a s m a d e
(Hernandez, et al. vs. Navarro, et al, L-28296, Nov 24
1972).
5. For failure of petitioners to claim a copy of the
resolution denying due course to their petition within
5 days from notice, service became effective after the
five-day period and the finality of said resolution is
reckoned therefrom, pursuant to Sec. 8 (now, Sec. 10),
Rule 18 which is applicable to said resolution of the
appellate court (Aportadera, et al. vs. CA, et al, L-41358,
Mar. 16, 1988).
Sec. 11. Priorities in modes of service and filing.
Whenever practicable, the service and filing of
pleadings and other papers shall be done personally.
Except with respect to papers emanating from the
court, a resort to other m o d e s must be accompanied
b y a w r i t t e n e x p l a n a t i o n w h y t h e s e r v i c e o r filing
was not done personally. A violation of this rule
m a y b e c a u s e t o c o n s i d e r t h e p a p e r a s n o t filed, (n)
S e c . 12. Proof of filing. T h e f i l i n g of a p l e a d i n g
or paper shall be proved by its e x i s t e n c e in the
record of t h e case. If it is not in the record, but is
c l a i m e d to h a v e b e e n filed personally, the filing
shall be proved by the written or stamped
a c k n o w l e d g m e n t of its filing by the clerk of court
on a c o p y of t h e s a m e ; if filed by r e g i s t e r e d m a i l , by
the registry receipt and by the affidavit of the
p e r s o n w h o d i d t h e m a i l i n g , c o n t a i n i n g a full
statement of the date and place of depositing the
mail in t h e p o s t office in a s e a l e d e n v e l o p e a d d r e s s e d
t o t h e c o u r t , w i t h p o s t a g e fully pre-paid, a n d w i t h
236

RULE 13

REMEDIAL LAW COMPENDIUM

SECS. 11-12

instructions to the postmaster to return the mail


t o t h e s e n d e r after t e n (10) d a y s i f n o t d e l i v e r e d , (n)
NOTES
1. Sec. 11, which is a new provision, fills a long
s t a n d i n g need to curb t h e practice of delaying the receipt
of a pleading by a p a r t y t h r o u g h t h e simple expedient
of s e r v i n g t h e s a m e by m a i l . A s i m p l e a n d common
e x a m p l e w o u l d be in t h e m a t t e r of m o t i o n s w i t h a
r e q u e s t e d date of hearing, and a copy whereof is mailed
with t h e i n t e n t to have t h e same received by t h e adverse
p a r t y after t h e h e a r i n g thereof. E x t r e m e s i t u a t i o n s even
obtain in Metro Manila wherein t h e copy of t h e motion is
mailed in a post office in some other component city or
municipality of t h e metropolitan area, although t h e law
firms r e p r e s e n t i n g t h e p a r t i e s a r e j u s t across t h e s t r e e t
from each o t h e r in t h e same city or, worse, a r e in t h e same
building. This section may be considered, not only as
providing a procedural sanction for such duplicity, b u t as
also laying a basis for a d m i n i s t r a t i v e disciplinary action
for professional malpractice. See also related provisions,
geared toward t h e s a m e objective, in Sec. 3, Rule 7 and
Sec. 4, Rule 15.
2. W h e n t h e service is not made personally, t h e r e
m u s t be a w r i t t e n e x p l a n a t i o n t h e r e f o r , e v e n if s u c h
e x p l a n a t i o n is by its n a t u r e a c c e p t a b l e a n d m a n i f e s t .
This r e q u i r e m e n t is intended to emphasize t h a t p e r s o n a l
service is t h e rule, while t h e o t h e r modes of service are
t h e e x c e p t i o n s (Zulueta vs. Asia Brewery, Inc., G.R.
No. 138137, Mar. 8, 2001). W h e r e no e x p l a n a t i o n is
offered to justify t h e service of pleadings by o t h e r modes,
the discretionary power of the court to expunge the
pleading becomes m a n d a t o r y (United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R. No.
141117, Mar. 25, 2004).

236

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FILING AND SERVICE OF PLEADINGS,


JUDGMENTS AND OTHER PAPERS

SEC. 13

3. The fact t h a t an affidavit of service accompanied


the petition is not s u b s t a n t i a l compliance with the
r e q u i r e m e n t in Sec. 11. An affidavit of service is required
merely as proof t h a t service h a s been made to t h e other
p a r t i e s in t h e case. It does not, however, explain why
a l t e r n a t i v e modes of service other t h a n personal service
were resorted to (MC Engineering, Inc. vs. NLRC, et al.,
G.R. No. 142314, June 28, 2001).
4. This Rule, and its predecessor, had always
provided for proof of service of pleadings, b u t had not
m a d e an e q u i v a l e n t p r o v i s i o n for proof of t h e filing
thereof. Yet, similar controversies also arise r e g a r d i n g
t h e validity, t i m e l i n e s s a n d sufficiency of t h e filing of
the pleading j u s t like t h e m a t t e r of the service thereof,
hence t h e s e complementary provisions of Sec. 12.
S e c . 1 3 . Proof of service. P r o o f of p e r s o n a l
service shall consist of a written admission of the
p a r t y s e r v e d , o r t h e official r e t u r n o f t h e s e r v e r , o r
t h e a f f i d a v i t of t h e p a r t y s e r v i n g , c o n t a i n i n g a full
statement of the date, place and manner of service.
If the service is by ordinary mail, proof thereof shall
consist of an affidavit of the person mailing of facts
s h o w i n g c o m p l i a n c e w i t h section 7 of this Rule. If
service is m a d e by registered mail, proof shall be
made by such affidavit and the registry receipt
i s s u e d b y t h e m a i l i n g office. T h e r e g i s t r y r e t u r n
card s h a l l b e filed i m m e d i a t e l y u p o n its r e c e i p t b y
the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
(10a)
NOTE
1. The provision of this section on proof of service
of pleadings by registered mail is also applicable to the
237

RULE 13

REMEDIAL LAW COMPENDIUM

SEC. 14

m a t t e r of proving t h a t a copy of t h e s u m m o n s was s e n t


by r e g i s t e r e d m a i l to a d e f e n d a n t w h e r e t h e s a m e is
required as an integral complement in t h e service of such
s u m m o n s by publication. See Sees. 7 a n d 15, Rule 14,
and the comments t h e r e u n d e r .
S e c . 14. Notice of lis pendens. In an a c t i o n
affecting the title or the right of p o s s e s s i o n of real
property, the plaintiff and the defendant, w h e n
affirmative relief is claimed in his answer, may
r e c o r d i n t h e office o f t h e r e g i s t r y o f d e e d s o f t h e
province in w h i c h the property is situated a notice
of the pendency of the action. Said notice shall
contain the names of the parties and the object of
the action or defense, and a description of the
property in that province affected thereby. Only
f r o m t h e t i m e o f f i l i n g s u c h n o t i c e for r e c o r d s h a l l
a purchaser, or e n c u m b r a n c e r of the property
affected thereby, be deemed to have constructive
n o t i c e o f t h e p e n d e n c y o f t h e a c t i o n , a n d o n l y o f its
pendency against the parties designated by their
real names.
The
notice
of
lis pendens
hereinabove
mentioned may be cancelled only upon order of the
c o u r t , a f t e r p r o p e r s h o w i n g t h a t t h e n o t i c e i s for
the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of
t h e p a r t y w h o c a u s e d i t t o b e r e c o r d e d . (24a, R14)
NOTES
1. A notice of lis pendens, u n d e r t h e circumstances
and the conditions provided in this section, may be recorded
at t h e instance of t h e i n t e r e s t e d p a r t y at any time d u r i n g
t h e p e n d e n c y of t h e action a n d not n e c e s s a r i l y at t h e
time of t h e filing of t h e complaint or t h e a n s w e r of the
p a r t y concerned.

238

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FILING AND SERVICE OF PLEADINGS,


JUDGMENTS AND OTHER PAPERS

SEC. 14

2. A notice of lis pendens is intended to protect t h e


real rights of t h e p a r t y who caused the registration thereof
(Natano vs. Esteban, L-22034, Oct. 28, 1966).
It
s e r v e s as a w a r n i n g to prospective e n c u m b r a n c e r s or
p u r c h a s e r s t h a t t h e y should keep t h e i r h a n d s off t h e
property unless they wish to gamble on the result of t h e
litigation involving t h e s a m e (Bisaya Land Trans. Co.,
Inc. vs. Cuenco, L-18173, April 22, 1968; Laroza, et al.
vs. Guia, L-45252, Jan. 31, 1985; cf. Tanchoco, et al. vs.
Aquino, et al., L-30670, Sept. 15, 1987). The p a r t y who
h a d t h e notice a n n o t a t e d a n d who won t h e l i t i g a t i o n
over t h e p r o p e r t y h a s t h e b e t t e r r i g h t a s a g a i n s t one
who b o u g h t it w i t h s u c h a n n o t a t i o n (Heirs of Maria
Marasigan vs. IAC, et al., G.R. No. 69303, July 23, 1987).
3. W h e r e t h e notice of lis pendens is limited to a
one-half undivided i n t e r e s t in the property in litigation,
t h e o w n e r o f t h e o t h e r half h a s t h e r i g h t t o sell his
u n d i v i d e d pro indiviso s h a r e (Mercado vs.
Viardo,
L-14127, Aug. 21, 1962).
4. A notice of lis pendens cannot be ordered to be
cancelled on an ex parte motion. There should be notice
to t h e p a r t y who caused such notice to be recorded so
t h a t h e m a y b e h e a r d t o show t o t h e c o u r t t h a t t h e
notice of lis pendens is necessary to protect his r i g h t s
a n d is not for t h e p u r p o s e of m o l e s t i n g t h e a d v e r s e
p a r t y (Punongbayan vs. Pineda, et al., G.R. No. 58193,
Aug. 30, 1984).
A n o t i c e of lis pendens c a n n o t be
ordered to be cancelled upon t h e mere filing of a bond by
the p a r t y on whose title t h e notice is annotated, as this
s e c t i o n p r o v i d e s for only t w o i n s t a n c e s w h e n s u c h
cancellation may be authorized (Tan, et al. vs. Lantin,
et al., L-28526, July 7, 1986).
5. However, u n d e r exceptional circumstances, the
c o u r t c a n o r d e r t h e c a n c e l l a t i o n of t h e notice of lis
pendens e s p e c i a l l y w h e r e s u c h c i r c u m s t a n c e s a r e
imputable to the party who caused the annotation of said
239

RULE 13

REMEDIAL LAW COMPENDIUM

SEC. 14

notice, as where t h e litigation was unduly prolonged to


the prejudice of the defendant because of several
continuances procured by the plaintiff (Mun. ofParanaque
vs. Rovira, 55 Phil. 1000). Also, w h e r e t h e case which is
t h e basis for t h e lis pendens notation w a s dismissed for
non-prosequitur on t h e p a r t of t h e plaintiff (Lazaro vs.
Mariana, 59 Phil. 627), or j u d g m e n t w a s r e n d e r e d a g a i n s t
the p a r t y who caused the recording of said notice
(Capitol Subdivision, Inc., et al. vs. Montelibano et al.,
109 Phil. 546), said notice is deemed ipso facto cancelled.
6. Lis pendens is a L a t i n t e r m which literally m e a n s
a p e n d i n g suit or litigation, while a notice of lis pendens
is an a n n o u n c e m e n t to t h e whole world t h a t a p a r t i c u l a r
real p r o p e r t y is in litigation, serving as a w a r n i n g t h a t
one w h o a c q u i r e s a n i n t e r e s t over t h e s a i d p r o p e r t y
does so at his own risk. It is a rule founded upon r e a s o n s
of public policy a n d necessity.
As such, a notice of lis pendens c a n n o t conceivably
be t h e lien or e n c u m b r a n c e c o n t e m p l a t e d by law. A lien
is an existing b u r d e n or charge on t h e p r o p e r t y , while
a notice of lis pendens is only a w a r n i n g t h a t a claim or
possible charge on t h e p r o p e r t y is p e n d i n g d e t e r m i n a t i o n
by t h e court. Not all claims a g a i n s t a p r o p e r t y can be
considered as liens within the contemplation of law
(People vs. RTC of Manila, etc., et al., G.R. No. 81541,
Oct. 4, 1989).
7. A notice of lis pendens is proper only w h e r e t h e r e
is an action or proceeding in court which affects t h e title
to or p o s s e s s i o n of r e a l p r o p e r t y (Dino vs. CA, et al.,
G.R. No. 95921, Sept. 2, 1992). It is e s s e n t i a l t h a t t h e
property be directly affected, as where the relief sought in
t h e action i n c l u d e s t h e recovery of p o s s e s s i o n , or t h e
enforcement of a lien, or an adjudication between conflicting
claims of title, possession, or right of possession of specific
real property, or requiring its
transfer or sale (Register
of Deeds vs. Mercado, 72 Phil. 353).
240

RULE 13

FILING AND SERVICE OF PLEADINGS,


JUDGMENTS AND OTHER PAPERS

SEC 14

8. In Alberto vs. CA, et al. (G.R. N o . 1 1 9 0 8 8 ,


J u n e 30, 2000), it was further clarified t h a t the rule of
lis pendens likewise applies to all suits or actions which
directly affect not only t h e title to real property, b u t also
those which a r e brought to establish an equitable e s t a t e ,
i n t e r e s t or r i g h t in specific real property or to enforce
any lien, charge or e n c u m b r a n c e a g a i n s t it arising
d u r i n g t h e p r o g r e s s of t h e s u i t . It is also p r o p e r in
proceedings to declare an absolute deed of mortgage, or
to redeem from a foreclosure sale, or to establish a t r u s t ,
o r t o s u i t s for t h e s e t t l e m e n t a n d a d j u s t m e n t o f
p a r t n e r s h i p i n t e r e s t s in real property.
9. However, w h e r e t h e complaint merely a s k s for
the p a y m e n t of construction services and materials, with
damages, but does not a s s e r t any encumbrance over the
property on which t h e unpaid constructions were made,
the a n n o t a t i o n of a lis pendens on the land is not proper.
It is only a p e r s o n a l action for collection, w i t h o u t any
a v e r m e n t of any enforceable right, i n t e r e s t or lien upon
the subject property.
Even if t h e contractor's lien u n d e r Art. 2242 of the
Civil Code h a d been alleged in favor of plaintiff, still the
desired annotation would be unjustified as a collection case
is not the proper mode for the enforcement of a contractor's
lien. F u r t h e r m o r e , said Art. 2242 finds application only
where t h e r e is a concurrence of credits and a showing
t h a t d e f e n d a n t ' s p r o p e r t y w a s insufficient t o pay t h e
concurring d e b t s , or t h a t t h e claim w a s in connection
with insolvency or other actions where claims of preferred
c r e d i t o r s h a v e to be a s c e r t a i n e d (Atlantic
Erectors,
Inc. vs. Herbal Cove Realty Corp., G.R. No. 148568,
Mar. 20, 2003).
10. For a further discussion of the other legal aspects
and effects of a notice of lis pendens, see Romero vs. CA,
et al. (G.R. No. 142406, May 16, 2005).

241

R U L E 14
SUMMONS
S e c t i o n 1. Clerk to issue summons. U p o n t h e
filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to the
defendants, (la)
S e c . 2 . Contents. T h e s u m m o n s s h a l l b e
directed to the defendant, signed by the clerk of
c o u r t u n d e r s e a l , a n d c o n t a i n : (a) t h e n a m e o f t h e
c o u r t a n d t h e n a m e s o f t h e p a r t i e s t o t h e a c t i o n ; (b)
a direction that the defendant answer within the
t i m e fixed by t h e s e R u l e s ; a n d (c) a n o t i c e t h a t u n l e s s
the defendant so answers, plaintiff will take
judgment by default and may be granted the relief
a p p l i e d for.
A c o p y of t h e c o m p l a i n t a n d o r d e r for
a p p o i n t m e n t of g u a r d i a n ad litem, if a n y , s h a l l be
attached to the original and each copy of the
s u m m o n s . (3a)
NOTES
1. J u r i s d i c t i o n c a n n o t be acquired over t h e defend a n t w i t h o u t service of s u m m o n s , e v e n if he knows of
t h e case a g a i n s t him, unless he voluntarily s u b m i t s to t h e
jurisdiction of t h e court by a p p e a r i n g t h e r e i n as t h r o u g h
his counsel filing t h e corresponding pleading in t h e case
(Habana vs. Vamenta, et al., L-27091, June 30, 1970).
Even if jurisdiction over him was not originally acquired
due to defective service of s u m m o n s , t h e court acquires
j u r i s d i c t i o n over his p e r s o n by his act of s u b s e q u e n t l y
filing a motion for reconsideration (Soriano vs. Palacio,
L-17469, Nov. 28, 1964), or by j o i n t l y s u b m i t t i n g a
242

RULE 14

SUMMONS

SECS. 1-2

compromise a g r e e m e n t for a p p r o v a l of t h e t r i a l court


(Algrabe vs. CA, et al., L-24458-64, July 31, 1969), or
where he signed t h e compromise a g r e e m e n t to g u a r a n t e e
the p a y m e n t of t h e obligation of the impleaded defendants
and said a g r e e m e n t was approved and was made t h e basis
of t h e j u d g m e n t on c o m p r o m i s e (Rodriguez, et al. vs.
Alikpala, et al, L-38314, June 25, 1974). But w h e r e t h e
d e f e n d a n t d i e d b e f o r e t h e filing o f t h e a c t i o n a n d
summons was served on his co-defendant, the court
never acquired jurisdiction over t h e former and j u d g m e n t
as to him is a nullity. The deceased has no more civil
personality and even the voluntary appearance of
counsel for him will be ineffective (Dumlao vs. Quality
Plastic Products, Inc., L-27956, April 30, 1976).
2. The failure to a t t a c h a copy of t h e complaint to
t h e s u m m o n s (Pagalaran vs. Ball at an, et al., 13 Phil.
135) or a copy of t h e order appointing a g u a r d i a n ad litem
(Castaho vs. Castano, 96 Phil. 533) a r e mere technical
defects a n d t h e service of s u m m o n s vests jurisdiction in
the court over the defendant who may thereby be
declared in default for failure to file an answer.
3 . W h e r e t h e d e f e n d a n t h a s a l r e a d y been served
with summons on the original complaint, no further
s u m m o n s is r e q u i r e d on t h e a m e n d e d c o m p l a i n t if it
does not introduce new causes of action (Ong Peng vs.
Custodio, L-14911, Mar. 25, 1961); b u t w h e r e t h e
defendant was declared in default on the original
complaint and t h e plaintiff subsequently filed an amended
complaint, new summons m u s t be served on the defendant
on t h e amended complaint as t h e original complaint was
deemed w i t h d r a w n upon such a m e n d m e n t (Atkins, Kroll
& Co. vs. Domingo, 44 Phil. 680).
4. F u r t h e r m o r e , if the defendant had not yet
appeared by filing adversary pleadings and an amended
complaint i n t r o d u c i n g new c a u s e s of action is filed, a

243

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 3-5

new s u m m o n s m u s t be served upon him as r e g a r d s t h e


a m e n d e d complaint; otherwise, t h e court h a s no power
to try t h e new causes of action. Simply sending a copy
of t h e a m e n d e d complaint to him, u n d e r such circumstances, is not equivalent to service of s u m m o n s thereon.
However, if the defendant had already appeared in
r e s p o n s e to t h e first s u m m o n s by filing a m o t i o n to
dismiss or an answer, he was, therefore, already in court
w h e n t h e a m e n d e d complaint was filed, in which case
mere service of the amended complaint upon him is
s u f f i c i e n t w i t h o u t t h e n e e d for new s u m m o n s t o b e
served (Ong Peng us. Custodio, supra).
S e c . 3. By whom served. T h e s u m m o n s m a y be
s e r v e d b y t h e sheriff, h i s d e p u t y , o r o t h e r p r o p e r
c o u r t o f f i c e r s , o r for j u s t i f i a b l e r e a s o n s b y a n y
suitable person authorized by the court issuing the
s u m m o n s . (5a)
S e c . 4 . Return. W h e n t h e s e r v i c e h a s b e e n
c o m p l e t e d , t h e s e r v e r s h a l l , w i t h i n f i v e (5) d a y s
therefrom, serve a copy of the return personally or
by registered mail, to the p l a i n t i f f s counsel, and
shall return the s u m m o n s to the clerk w h o issued
it, a c c o m p a n i e d b y p r o o f o f s e r v i c e . (6a)
S e c . 5. Issuance of alias
summons.

If a
summons is returned without being served on
a n y or all of t h e d e f e n d a n t s , the s e r v e r shall
also serve a copy of the return on the p l a i n t i f f s
c o u n s e l , s t a t i n g t h e r e a s o n s for t h e f a i l u r e o f
s e r v i c e , w i t h i n five (5) d a y s t h e r e f r o m .
In s u c h a
case, or if the s u m m o n s has been lost, the clerk,
on d e m a n d of the plaintiff, may issue an alias
s u m m o n s . (4a)

244

RULE 14

SUMMONS

SECS. 6-7

NOTES
1. T h e e n u m e r a t i o n in Sec. 3 of t h e p e r s o n s who
may validly serve s u m m o n s is exclusive. T h u s , w h e r e
s u m m o n s w a s served, without authority granted by t h e
court, by a police s e r g e a n t (Sequito vs. Letrondo, 105 Phil.
1139), by a p o s t m a s t e r (Olar vs. Cuna, L-47935, May 5,
1978), or by a p a t r o l m a n (Bello vs. Ubo, et al., L-30353,
Sept. 30, 1982), such service was invalid and t h e court
did not acquire jurisdiction over t h e defendant.
2. Proof of service is r e q u i r e d to be given to t h e
p l a i n t i f f s counsel in order to enable him to move for a
default order should t h e defendant fail to a n s w e r on time
or, in case of non-service, so t h a t alias s u m m o n s may be
sought. In e i t h e r case, u n d e r this amended section, t h e
s e r v e r m u s t s e r v e a copy of t h e r e t u r n on p l a i n t i f f s
counsel within 5 days from completion or failure of t h e
service, w h i c h r e q u i r e m e n t w a s a b s e n t i n t h e former
Rules.
S e c . 6. Service in person on defendant.
e v e r practicable, the s u m m o n s shall be
handing a copy thereof to the defendant
or, if he r e f u s e s to r e c e i v e and s i g n
t e n d e r i n g i t t o h i m . (7a)

Whenserved by
in person,
for i t , b y

S e c . 7. Substituted service. If, for j u s t i f i a b l e


causes, the defendant cannot be served within a
reasonable time as provided in the preceding
s e c t i o n , s e r v i c e m a y b e e f f e c t e d (a) b y l e a v i n g c o p i e s
of the summons at the defendant's residence with
some person of suitable age and discretion then
r e s i d i n g t h e r e i n , o r (b) b y l e a v i n g t h e c o p i e s a t
d e f e n d a n t ' s office o r r e g u l a r p l a c e o f b u s i n e s s w i t h
s o m e c o m p e t e n t p e r s o n i n c h a r g e thereof. (8a)

245

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 6-7

NOTES
1. T h e s e t w o s e c t i o n s p r o v i d e for t w o m o d e s of
service of summons. The third mode is service of summons
by publication (Sees. 14, 15 a n d 16). The court may also
provide for any other m a n n e r as it may deem sufficient
(Sec. 15).
2. S u m m o n s cannot be served by mail. Where
service of s u m m o n s is m a d e by publication, "a copy of
t h e s u m m o n s a n d o r d e r of t h e c o u r t s h a l l be s e n t by
registered mail to t h e last known a d d r e s s of t h e defend a n t " (Sec. 15). T h a t r e s o r t to r e g i s t e r e d mail is only
complementary to service of s u m m o n s by publication, b u t
it does not m e a n t h a t service by r e g i s t e r e d mail alone
would suffice. T h u s , Sec. 22 of t h e former Rule entitled
"Proof of service by registered mail," which c r e a t e d t h a t
m i s i m p r e s s i o n , a l t h o u g h i t a c t u a l l y r e f e r r e d only t o
t h e r e g i s t e r e d m a i l as a c o m p l e m e n t in s u m m o n s by
publication, h a s been eliminated and h a s not been
r e p r o d u c e d i n t h i s revised Rule. For t h a t m a t t e r , t h e
p u r p o s e it i n t e n d e d to serve is a t t e n d e d to by Sec. 13,
Rule 13.
3. In ejectment cases, being in personam, p e r s o n a l
service of s u m m o n s on t h e defendant w i t h i n t h e s t a t e of
t h e forum is e s s e n t i a l to a c q u i r e j u r i s d i c t i o n over his
person, hence s u m m o n s by publication is null and void
(Ilaya Textile Market, Inc. vs. Ocampo, et al, L-27823,
Mar. 20, 1970).
4. W h e r e t h e action is in personam a n d t h e defend a n t is in the Philippines, service must be made in
accordance w i t h Sec. 7. S u b s t i t u t e d service should be
availed of only w h e r e t h e defendant c a n n o t be promptly
s e r v e d in p e r s o n (Litonjua vs. CA, et al, L-46265,
Oct. 28, 1977).

246

RULE 14

SUMMONS

SEC. 8

5. The impossibility of personal service should be


explained in t h e proof of service showing t h a t efforts
were e x e r t e d therefor, hence t h e r e s o r t to s u b s t i t u t e d
service (Keister vs. Navarro, et al., L-29067, May 31,
1977) a n d such facts m u s t be r e p o r t e d in t h e proof of
s e r v i c e , o t h e r w i s e t h e s u b s t i t u t e d service i s i n v a l i d
(Busuego vs. CA, et al, L-48955, June 30, 1971; Arevalo,
et al. vs. Quilatan, et al., G.R. No. 57892, Sept. 21, 1982;
Ponio, et al. vs. IAC, et al., G.R. No. 66782, Dec. 20, 1984;
Venturanza vs. CA, et al., G.R. No. 77760, Dec. 11, 1987;
Samartino vs. Raon, et al., G.R. No. 131482, July 3, 2002).
Where, however, t h e s u b s t i t u t e d service of s u m m o n s
u n d e r s u c h c i r c u m s t a n c e s w a s not objected to by t h e
defendant at t h e t r i a l where he voluntarily appeared by
counsel a n d t h i s objection was raised only for t h e first
time on appeal, t h e r e was no question t h a t said s u m m o n s
was actually a n d timely received by t h e defendant. The
doctrine in t h e aforecited cases was not applied and such
s u b s t i t u t e d service of s u m m o n s was declared valid.
W h a t e v e r defect t h e r e was in such mode of service was
deemed waived and t h e court had acquired jurisdiction
over t h e p e r s o n of t h e d e f e n d a n t by his v o l u n t a r y
submission t h e r e t o (Boticano vs. Chu, G.R. No. 58036,
Mar. 16, 1987; cf. Umandap vs. Sabio, Jr., et al., G.R.
No. 140244, Aug. 29, 2000).
6. Although t h e wife was not personally served with
summons, t h e service of such summons on her husband
was binding on her, where h e r husband apprised her of
t h a t fact by t e l e g r a m a n d she was also served with a
copy of t h e writ of preliminary a t t a c h m e n t issued in the
case; hence, she was duly alerted to t h e filing and pendency of t h e action against her (De Leon vs. Hontanosas,
et al., L-40377, Oct. 29, 1975).
S e c . 8.
Service
upon
entity
without juridical
personality. W h e n p e r s o n s a s s o c i a t e d in an e n t i t y
247

RULE 14

REMEDIAL LAW COMPENDIUM

SEC. 8

without juridical personality are sued under the


name by which they are generally or commonly
k n o w n , s e r v i c e may be effected u p o n all the
defendants by serving upon any one of them, or
u p o n t h e p e r s o n i n c h a r g e o f t h e office o r p l a c e o f
business maintained in such name. But such
s e r v i c e s h a l l n o t bind i n d i v i d u a l l y a n y p e r s o n w h o s e
connection with the entity has, upon due notice,
b e e n s e v e r e d b e f o r e t h e a c t i o n w a s b r o u g h t . (9a)
NOTES
1. As a g e n e r a l rule a n d as provided in Sec. 1 of
Rule 3, only n a t u r a l or juridical persons may be p a r t i e s
in a civil action, b u t "entities a u t h o r i z e d by law" may
likewise be p a r t i e s to a suit. Accordingly, Sec. 15 of said
Rule provides t h a t an entity without juridical personality
may be sued u n d e r t h e circumstances prescribed t h e r e i n
in connection w i t h a t r a n s a c t i o n it may have e n t e r e d into
and t h e p r e s e n t section provides t h e rule for s u m m o n s
thereon.
I t m u s t n o n e t h e l e s s b e observed t h a t s u c h e n t i t y
without juridical personality can be sued, but cannot
sue by initiating an original civil action. However, it is
s u b m i t t e d t h a t as a m a t t e r of fairness a n d logical
procedure, once it is impleaded as a defendant to a suit,
it m a y also file c o u n t e r c l a i m s , c r o s s - c l a i m s or o t h e r
initiatory pleadings for claims it may properly avail itself
of as, and since it is already, a p a r t y to a suit.
Also, t h e previous provisions of Sec. 9 of this Rule
on this m a t t e r referred to "persons associated in business,"
t h u s giving rise to t h e impression t h a t only associations
engaged in b u s i n e s s a r e contemplated t h e r e i n and can be
sued as such defendants. This section h a s been revised to
refer t o a n d i n c l u d e " p e r s o n s a s s o c i a t e d i n a n e n t i t y
w i t h o u t j u r i d i c a l p e r s o n a l i t y , " since a s s o c i a t i o n s not
engaged in business or commercial activity, such as civic
248

RULE 14

SUMMONS

SECS. 9-10

associations or organizations, can also commit actionable


wrongs which can be a cause of action in a civil case.
2. Where the action was brought against the
"Cerisco B l a c k c a t T r a d i n g , " which d e s i g n a t i o n w a s a
combination of t h e t r a d e m a r k and business name u n d e r
which the owners of the e s t a b l i s h m e n t were doing
business, t h e s u m m o n s served upon t h e "president/owner/
manager" of said firm, although they were not impleaded
as defendants in t h e complaint, was valid and t h e court
a c q u i r e d j u r i s d i c t i o n over t h e i r p e r s o n s a s t h e s a m e
complied w i t h t h e provisions of Sec. 9 (now, Sec. 8) of
this Rule on service upon associations (Ablaza vs. CIR,
et al, L-33906, Dec. 21, 1983).
S e c . 9. Service upon prisoners. W h e n t h e
d e f e n d a n t is a p r i s o n e r c o n f i n e d in a jail or
institution, service shall be effected upon h i m by
t h e officer h a v i n g t h e m a n a g e m e n t o f s u c h j a i l o r
institution w h o is deemed deputized as a special
s h e r i f f for s a i d p u r p o s e . (12a)
S e c . 10. Service upon minors and incompetents.
When the defendant is a minor, insane or otherwise
an incompetent, service shall be made upon him
personally and on his legal guardian if he has one,
o r i f n o n e , u p o n h i s g u a r d i a n a d litem w h o s e
a p p o i n t m e n t s h a l l be a p p l i e d for by t h e plaintiff.
In the case of a minor, service may also be made
on h i s f a t h e r or m o t h e r . (10a, 11a)
NOTES
1. The i m p o r t a n t change introduced in Sec. 9 of this
Rule is the deputization as a special sheriff of the head of
the penal institution for t h e service of summons upon a
p r i s o n e r confined t h e r e i n . Consequently, t h a t officer
who h a s the m a n a g e m e n t of t h e prison facility shall be
249

RULE 14

REMEDIAL LAW COMPENDIUM

SEC. 11

charged with t h e duty of complying w i t h t h e provisions


of Sees. 4 and 5 of t h i s Rule relative to t h e r e t u r n on t h e
s u m m o n s on t h e prisoner.
2. W i t h r e g a r d to Sec. 10, t h e c h a n g e s consist of
t h e p r e s e n t r e q u i r e m e n t t h a t s u m m o n s should be served
upon t h e minor, regardless of his age, a n d upon his legal
g u a r d i a n or also upon e i t h e r of his p a r e n t s . In t h e case
of an i n c o m p e t e n t , service m u s t also be m a d e on h i m
p e r s o n a l l y or u p o n his legal g u a r d i a n , b u t n o t on his
p a r e n t s unless, obviously, when they are his legal
g u a r d i a n s . In any e v e n t , if t h e minor or i n c o m p e t e n t
has no legal guardian, the plaintiff m u s t obtain the
a p p o i n t m e n t of a g u a r d i a n ad litem for him.
S e c . 11.
Service upon domestic private juridical
entity. W h e n t h e d e f e n d a n t is a c o r p o r a t i o n ,
partnership or association organized under the
laws of the Philippines with a juridical personality,
service may be made on the president, managing
partner, general manager, corporate secretary,
t r e a s u r e r , o r i n - h o u s e c o u n s e l . (13a)
NOTES
1. U n d e r t h e f o r m u l a t i o n in Sec. 13 of t h i s Rule
from which t h i s a m e n d e d section w a s t a k e n , it w a s held
t h a t service upon a person o t h e r t h a n those mentioned
t h e r e i n i s i n v a l i d a n d does not b i n d t h e c o r p o r a t i o n
(Delta Motors Corp. vs. Pamintuan, et al., L-41667,
April 30, 1976, citing Reader vs. District Court, 94 Pac.
2nd 8581, holding t h a t service of s u m m o n s on t h e wife of
the corporate secretary was not binding on t h e corporation;
cf. AM Trucking, Inc. vs. Buencamino, et al., G.R.
No. 62445, Aug. 31, 1983).
B u t in Summit Trading &
Dev. Corp. vs. Avendano, et al. (G.R. No. 60038, M a r . 18,
1985), s u m m o n s for t h e corporation served on the secretary
of t h e p r e s i d e n t thereof was held to be binding on said
250

RULE 14

SUMMONS

SEC. 11

corporation as t h e secretary was considered an "agent"


of t h e corporation. The s a m e is t r u e w h e r e s u m m o n s
was s e r v e d on t h e a d m i n i s t r a t i v e Chief of F i n a n c e of
defendant corporation (Far Corp., et al. vs. Francisco,
etc., et al., G.R. No. 57218, Dec. 12, 1986).
2. Also, it w a s ruled t h a t service of s u m m o n s upon
t h e a s s i s t a n t g e n e r a l m a n a g e r for operations of a corporation, holding office at a sub-station is valid as he is,
in effect, a "manager" or "agent" of t h e corporation (Villa
Rey Transit, Inc., et al. vs. Far East Motor Corp., et al.,
L-31339, Jan. 31, 1978) even if t h e p a p e r s were l a t e r left
with t h e teller due to t h e refusal of said a s s i s t a n t general
m a n a g e r to receive t h e s a m e upon t h e t e n d e r thereof to
him. W h e r e , h o w e v e r , s u m m o n s in a case a g a i n s t a
c o r p o r a t i o n , w i t h h e a d office i n M a n i l a b u t w i t h a n
agency in Cebu, was served on its supposed branch
m a n a g e r in Cebu b u t he a p p a r e n t l y betrayed t h e t r u s t
of t h e d e f e n d a n t c o r p o r a t i o n by allowing an o r d e r of
default to be t a k e n a g a i n s t it, it was held t h a t s u m m o n s
was not validly served and no jurisdiction was acquired
over t h e defendant corporation (First Integrated Bonding
& Insurance Co., Inc. vs. Dizon, etc., et al, G.R. No. 61289,
Oct. 27, 1983).
3. Along t h e same rationale, it was declared t h a t a
lawyer who had made two special appearances in court
in behalf of a d e f e n d a n t corporation, to challenge t h e
validity of service of s u m m o n s upon it, is an a g e n t of
said corporation u n d e r Sec. 3 of this Rule and s u m m o n s
intended for said corporation may validly be served on
him (Filoil Marketing Corp. vs. Marine Dev. Corp. of the
Phil, L-29636, Sept. 30, 1982; Lingner & Fisher GMBH
vs. IAC, et al, G.R. No. 63557, Oct. 28, 1983).
4. The foregoing doctrines were obviously dictated
by the consideration t h a t the former Sec. 13 of this Rule
allowed service u p o n a d e f e n d a n t c o r p o r a t i o n to "be
made on t h e president, manager, secretary, cashier, agent
251

RULE 14

REMEDIAL LAW COMPENDIUM

SEC. 11

or any of its directors." The aforesaid t e r m s were obviously ambiguous and susceptible of broad a n d sometimes
illogical i n t e r p r e t a t i o n s , especially t h e word "agent" of
t h e corporation. The Filoil case, involving t h e litigation
lawyer of the corporation who precisely a p p e a r e d to
challenge t h e validity of service of s u m m o n s , b u t whose
very a p p e a r a n c e for t h a t p u r p o s e w a s seized u p o n t o
validate the defective service, is an illustration of t h e need
for t h i s revised section w i t h limited scope a n d specific
terminology. T h u s , t h e a b s u r d r e s u l t in t h e Filoil case
necessitated t h e a m e n d m e n t p e r m i t t i n g service only on
t h e in-house counsel of t h e corporation who is in effect
an employee of t h e corporation, as d i s t i n g u i s h e d from
a n i n d e p e n d e n t practitioner.
5. The aforestated considerations n o t w i t h s t a n d i n g ,
it was believed t h a t t h e u l t i m a t e t e s t on t h e validity a n d
sufficiency of service of s u m m o n s is w h e t h e r t h e s a m e
a n d t h e a t t a c h m e n t s t h e r e t o were u l t i m a t e l y received by
t h e corporation u n d e r such c i r c u m s t a n c e s t h a t n o u n d u e
prejudice w a s s u s t a i n e d by it from t h e p r o c e d u r a l lapse,
a n d t h a t it w a s afforded full o p p o r t u n i t y to p r e s e n t its
r e s p o n s i v e p l e a d i n g s . T h i s i s b u t i n accord w i t h t h e
entrenched rule that the ends of substantial justice
s h o u l d not be s u b o r d i n a t e d to t e c h n i c a l i t i e s a n d , for
which purpose, each case m u s t be e x a m i n e d w i t h i n t h e
factual milieu peculiar to it.
Thus, it was held t h a t although s u m m o n s was
served on a s e c r e t a r y of t h e corporation (not t h e official
corporate secretary) and, therefore, such service was made
on a p e r s o n not a u t h o r i z e d to receive t h e s a m e , w h e r e
said s u m m o n s a n d t h e complaint were in fact seasonably
received by t h e corporation from its said clerk, t h e r e was
s u b s t a n t i a l compliance with the rule on service of
s u m m o n s (G & G Trading Corporation vs. CA, et al., G.R.
No. 78299, Feb. 29, 1988).

252

RULE 14

SUMMONS

SEC. 11

6. However, t h e foregoing oscillating holdings were


clarified and/or o v e r t u r n e d in E.B. Villarosa & Partner
Co., Ltd. vs. Benito (G.R. No. 136426, Aug. 6, 1999) which
d e c l a r e d t h a t t h e d o c t r i n e o f s u b s t a n t i a l compliance
followed u n d e r t h e 1964 Rules is no longer applicable in
view of t h e a m e n d m e n t s introduced by t h e 1997 Rules of
Civil Procedure. It was pointed out t h a t t h e new rule on
this point is restricted, limited and exclusive, as follows:
"The designation of t h e persons or officers who
a r e a u t h o r i z e d to accept s u m m o n s for a domestic
corporation or p a r t n e r s h i p is now limited and more
clearly specified in Sec. 11, Rule 14 of the 1997 Rules
of Civil P r o c e d u r e . T h e r u l e now s t a t e s ' g e n e r a l
m a n a g e r ' i n s t e a d of only ' m a n a g e r ' ; 'corporate
secretary' instead of 'secretary'; and 'treasurer'
instead of 'cashier.' The p h r a s e 'agent, or any of
its directors' is conspicuously deleted in the new rule."
This ruling w a s r e i t e r a t e d in Mason, et al. vs. CA,
et al. (G.R. No. 144662, Oct. 13, 2003), where service of
s u m m o n s was declared invalid because it was served on a
filing c l e r k o f d e f e n d a n t c o r p o r a t i o n a l t h o u g h t h e
l a t t e r a p p e a r e d to have eventually received the same.
7. A real p a r t y in interest-plaintiff is one who has
a legal right, while a real p a r t y in interest-defendant
is one whose act or omission violates t h e legal rights of
the former. Where the defendant still existed as a
corporation w h e n t h e cause of action accrued, summons
may properly be served on it even if at the time of the
i s s u a n c e a n d receipt of s u m m o n s it had a l r e a d y been
dissolved. A d e f e n d a n t corporation is subject to s u i t
even if dissolved, as c o n t e m p l a t e d in Sec. 122 of t h e
Corporation Code. It should, therefore, be amenable to
such coercive process which may be served through any
of t h e p e r s o n s m e n t i o n e d in Sec. 13 (now, Sec. 11),
Rule 12 (Rebollido, et al. vs. CA, et al., G.R. No. 81123,
Feb. 28, 1989).
253

RULE 14

REMEDIAL LAW COMPENDIUM

SEC. 12

S e c . 12.
Service upon foreign private juridical entity.
W h e n t h e d e f e n d a n t is a f o r e i g n p r i v a t e j u r i d i c a l
entity which has transacted business in the
Philippines, service may be m a d e on its r e s i d e n t
a g e n t d e s i g n a t e d i n a c c o r d a n c e w i t h l a w for t h a t
p u r p o s e , or, if t h e r e be no s u c h a g e n t , on the
g o v e r n m e n t official d e s i g n a t e d b y l a w t o t h a t effect,
or on any of its officers or agents within the
P h i l i p p i n e s . (14a)
NOTES
1. This section h a s been a m e n d e d to s u b s t i t u t e t h e
p h r a s e "foreign p r i v a t e juridical entity which h a s t r a n sacted business in t h e Philippines," being more embracing
and accurate, for t h e provision in t h e former Section 14
of t h i s Rule which referred to a "foreign corporation, or
a joint non-stock company or association, doing business
in t h e Philippines."
2. Formerly, w h e r e t h e foreign p r i v a t e corporation
h a d no r e s i d e n t a g e n t in t h e P h i l i p p i n e s or officers or
o t h e r a g e n t s h e r e , service of s u m m o n s w a s made on t h e
g o v e r n m e n t officials d e s i g n a t e d by law, to wit: (a) for
b a n k i n g , savings a n d loan or t r u s t corporations, upon t h e
S u p e r i n t e n d e n t of B a n k s (Sec. 17, R.A. 337); (b) for
i n s u r a n c e corporations, on t h e I n s u r a n c e Commissioner
(Sec. 177, Insurance Act, as a m e n d e d by Act 3152); and
(c) in t h e case of o t h e r corporations, on t h e S e c r e t a r y of
Commerce (Sec. 72, Act 1259, as a m e n d e d by CA. 287,
R.A. 337 a n d R.A. 1055).
H o w e v e r , Sec. 123 of t h e
C o r p o r a t i o n Code now p r o v i d e s t h a t w h e n a foreign
p r i v a t e corporation applies for a license to do business
in the Philippines, it shall be granted subject to the
condition, inter alia, t h a t if it h a s no r e s i d e n t a g e n t ,
s u m m o n s a n d processes i n t e n d e d for it shall be served
on t h e Securities a n d Exchange Commission.

254

RULE 14

SUMMONS

SEC. 13

3. W h e r e t h e service of s u m m o n s is m a d e on t h e
g o v e r n m e n t official d e s i g n a t e d by law, t h e d e f e n d a n t
corporation h a s 30 days from its receipt of the s u m m o n s
w i t h i n w h i c h to file i t s a n s w e r (Sec. 2, Rule 11). If
served on its r e s i d e n t agent, officers or other a g e n t s in
the Philippines, t h e 15-day reglementary period applies
(see Facilities Management Corp. vs. DelaOsa,
L-38649,
Mar. 28, 1979).
4. The former Sec. 14 of t h i s Rule required, as a
condition sine qua non, t h a t t h e foreign corporation is
doing business in t h e Philippines. In t h e absence of proof
thereof, b u t t h e c l a i m of t h e p l a i n t i f f is b a s e d on a
c o n t r a c t w i t h said foreign corporation which provides
t h a t all controversies a r i s i n g from said contract "shall
fall u n d e r t h e jurisdiction of Philippine Courts," t h e suit
may b e i n s t i t u t e d i n t h e P h i l i p p i n e s a n d s e r v i c e o f
s u m m o n s m a y be m a d e by publication u n d e r a liberal
a p p l i c a t i o n of Sec. 17 (now, Sec. 15) of t h i s Rule in
r e l a t i o n to Rule 4 (Lingner & Fisher GMBH vs. IAC,
et al., supra).
It h a s , however, been held t h a t a foreign corporation,
even if it is not doing business in the Philippines, may be
sued for acts done against persons in this country u n d e r
the rationale t h a t even if it is not doing business here, it
is also not b a r r e d from seeking redress from Philippine
c o u r t s (Facilities Management Corp. vs. De la Osa,
supra; Wang Laboratories, Inc. vs. Mendoza, et al., G.R.
No. 72147, Dec. 1, 1987). Note t h a t Sec. 12 now merely
r e q u i r e s t h a t t h e foreign c o r p o r a t i o n has transacted
business here.
S e c . 13. Service upon public corporations. W h e n
the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in
case of a p r o v i n c e , city or m u n i c i p a l i t y , or like
p u b l i c c o r p o r a t i o n s , s e r v i c e m a y b e e f f e c t e d o n its
265

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 14-16

e x e c u t i v e h e a d , o r o n s u c h o t h e r officer o r o f f i c e r s
a s t h e l a w o r t h e c o u r t m a y d i r e c t . (15)
S e c . 14. Service upon defendant whose identity or
whereabouts are unknown. In a n y a c t i o n w h e r e t h e
defendant is designated as an unknown owner, or
the like, or w h e n e v e r his w h e r e a b o u t s are u n k n o w n
and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon
h i m by publication in a n e w s p a p e r of general
c i r c u l a t i o n a n d i n s u c h p l a c e s a n d for s u c h t i m e a s
t h e c o u r t m a y o r d e r . (16a)
S e c . 16. Extraterritorial service. W h e n t h e
defendant does not reside and is not found in the
Philippines, and the action affects the personal
status of the plaintiff or relates to, or the subject of
w h i c h is, property within the Philippines, in w h i c h
the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest therein, or the property
of the defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal service
as u n d e r s e c t i o n 6; or by p u b l i c a t i o n in a n e w s p a p e r
o f g e n e r a l c i r c u l a t i o n i n s u c h p l a c e s a n d for s u c h
time as the court may order, in which case a copy
of the s u m m o n s and order of the court shall be sent
by registered mail to the last k n o w n address of the
defendant, or in any other manner the court may
d e e m sufficient. Any order granting such leave
shall specify a reasonable time, w h i c h shall not be
l e s s t h a n s i x t y (60) d a y s a f t e r n o t i c e , w i t h i n w h i c h
t h e d e f e n d a n t m u s t a n s w e r . (17a)

256

RULE 14

SUMMONS

SECS. 14-15

NOTES
1. Sec. 15 provides for t h e four instances wherein
e x t r a t e r r i t o r i a l service of s u m m o n s is proper. In any of
such four instances, service of s u m m o n s may, by leave
of court, be effected by personal service, by publication
w i t h a copy of t h e s u m m o n s a n d t h e court o r d e r s e n t
by r e g i s t e r e d mail, or in any o t h e r m a n n e r which t h e
court may deem sufficient. Where summonses were s e n t
to d e f e n d a n t s who w e r e residing abroad, by registered
mail which they duly received and even filed a pleading
questioning such mode of service, the third mode of service
was substantially complied w i t h and such service is valid,
especially where t h e court thereafter granted t h e m 90 days
w i t h i n w h i c h to file t h e i r a n s w e r
(De Midgely vs.
Ferandos, L-34313, May 13, 1975; Carioga, et al. vs.
Malaya, et al., L 48375, Aug. 13, 1986).
2. Where t h e h u s b a n d is a nonresident, but his wife
is a r e s i d e n t a n d is his attorney-in-fact who even commenced an action in his behalf, in a complaint a g a i n s t
said n o n r e s i d e n t d e f e n d a n t , s u m m o n s may validly be
served on his wife a n d t h e court has jurisdiction over said
n o n r e s i d e n t (Gemperle vs. Schenker, et al., L-18164,
Jan. 23, 1967).
3. U n d e r Sec. 15 of t h i s Rule, e x t r a t e r r i t o r i a l
service of s u m m o n s is proper only in four instances, viz.:
(a) w h e n t h e action affects t h e p e r s o n a l s t a t u s of t h e
plaintiff; (b) w h e n the action relates to, or the subject of
which is p r o p e r t y w i t h i n t h e Philippines in which t h e
d e f e n d a n t h a s or c l a i m s a lien or i n t e r e s t , a c t u a l or
contingent; (c) w h e n t h e relief demanded in such action
consists, wholly or in p a r t , in excluding the defendant
from any i n t e r e s t in property located in the Philippines;
a n d (d) w h e n t h e d e f e n d a n t n o n r e s i d e n t ' s p r o p e r t y
has been a t t a c h e d in t h e P h i l i p p i n e s (De Midgely vs.
Ferandos,
supra).
267

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 14-15

4. An action for injunction to r e s t r a i n d e f e n d a n t s


from enforcing a g a i n s t plaintiff its contracts for delivery
of coconut oil to defendants, with a claim for d a m a g e s ,
is not among those e n u m e r a t e d . It is a p e r s o n a l action
in personam a n d p e r s o n a l or s u b s t i t u t e d service, not
extraterritorial service, is required in order t h a t Philippine
courts may acquire jurisdiction over t h e defendant. This
is especially t r u e w i t h respect to t h e money j u d g m e n t
sought by plaintiff which, to be sustained, requires
personal service on the defendant within the State
w h i c h r e n d e r e d t h e j u d g m e n t s o u g h t [ B o u d a r d , e t al.
vs. Tait, 67 Phil. 170]. T h e e x t r a t e r r i t o r i a l service of
s u m m o n s effected o n t h e d e f e n d a n t s b y D H L c o u r i e r
s e r v i c e w a s n u l l a n d void (The Dial Corp., et al. vs.
Soriano, et al., G.R. No. 82330, May 31, 1988).
5. Since t h e d e f e n d a n t is a n o n r e s i d e n t a n d t h e
suit also involves real p r o p e r t y in t h e Philippines w h e r e i n
said d e f e n d a n t h a s an i n t e r e s t , service of s u m m o n s on
him by publication in a local n e w s p a p e r is a u t h o r i z e d by
Sec. 17 (now, Sec. 15) of t h i s Rule. While it m a y be t r u e
t h a t service of s u m m o n s by publication does not involve
any absolute a s s u r a n c e t h a t said n o n r e s i d e n t d e f e n d a n t
shall thereby receive actual notice, such service of
s u m m o n s i s r e q u i r e d n o t for p u r p o s e s o f p h y s i c a l l y
acquiring jurisdiction over his person but simply
in p u r s u a n c e of t h e r e q u i r e m e n t s of fair p l a y . It is
necessary, however, t h a t copies of t h e s u m m o n s a n d t h e
complaint be duly served at defendant's last known
a d d r e s s by r e g i s t e r e d mail as a complement to the
publication. The failure to strictly a n d correctly comply
with the requirements of the rules regarding the
mailing of said copies will constitute a fatal defect in t h e
aforesaid mode of service of s u m m o n s (Sahagun vs. CA,
et al, G.R. No. 78328, June 3, 1991).
6. Where the complaint does not involve the
personal s t a t u s of plaintiff or any property in the
258

RULE 14

SUMMONS

SECS. 14-15

Philippines in which defendants have or claim an


i n t e r e s t or w h i c h t h e p l a i n t i f f h a s a t t a c h e d , it is a
personal action in personam. Consequently, personal or
s u b s t i t u t e d service of s u m m o n s on defendants, not
e x t r a t e r r i t o r i a l service, is necessary to confer jurisdiction
on t h e court. In a personal action for injunction, therefore,
e x t r a t e r r i t o r i a l service of t h e s u m m o n s and complaint
o n t h e n o n r e s i d e n t d e f e n d a n t s c a n n o t confer o n t h e
court jurisdiction or power to compel t h e m to obey its
orders (Kawasaki Port Service Corp., et al. vs. Amores,
etc., et al., G.R. No. 58340, July 16, 1991).
7. In Asiavest Limited vs. CA, et al. (G.R. No. 128803,
Sept. 25, 1998), an action was filed in Hongkong against
a P h i l i p p i n e r e s i d e n t for a s u m of money. S u m m o n s
t h e r e i n was served directly t h r o u g h plaintiffs Philippine
counsel u p o n an o c c u p a n t of d e f e n d a n t ' s residence in
Quezon City. Thereafter, t h e j u d g m e n t of the Hongkong
court w a s r e n d e r e d a n d s o u g h t to be executed in t h e
Philippines, b u t it was resisted for lack of jurisdiction over
the person of t h e defendant.
M a t t e r s of procedure, such as service of summons, are
governed by t h e lex loci, in t h i s case, those of Hongkong. T h e r e being no proof on this score, u n d e r t h e rule
on processual p r e s u m p t i o n t h e same are deemed to be
the s a m e as Philippine law. In the p r e s e n t case, such
s u m m o n s served on a n o n r e s i d e n t defendant in an
action in personam is not valid since e x t r a t e r r i t o r i a l
service of s u m m o n s on nonresidents is allowed only in
the instances provided u n d e r Sec. 17, Rule 14. Service of
s u m m o n s in this case being invalid, the Hongkong
j u d g m e n t c a n n o t be given effect h e r e , no j u r i s d i c t i o n
having been acquired over the defendant.
8. A n e w s p a p e r of general circulation for purposes
of s u m m o n s by publication, is one which is published for
the dissemination of local news and general information,
has a bona fide subscription list of subscribers, is published
269

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 16-17

at regular intervals and is not published for or devoted


to t h e i n t e r e s t of a p a r t i c u l a r group of persons (Basa vs.
Mercado, 61 Phil. 632). See also t h e provisions of R.A.
4883, w h i c h r e q u i r e d t h a t t h e n e w s p a p e r m u s t h a v e
been r e g u l a r l y published for at least two y e a r s before
t h e d a t e of t h e publication in question, a n d P.D. 1079
( J a n . 28, 1977) as discussed in Fortune Motors (Phil.),
Inc. vs. Metropolitan Bank, etc., et al. (G.R. No. 115068,
Nov. 28, 1996).
S e c . 16. Residents
temporarily
out
of
the
Philippines. W h e n a n y a c t i o n i s c o m m e n c e d
against a defendant who ordinarily resides w i t h i n
t h e P h i l i p p i n e s , b u t w h o i s t e m p o r a r i l y o u t o f it,
service may, by leave of court, be also effected out
of the Philippines, as under the preceding section.
(18a)
S e c . 17. Leave of court. A n y a p p l i c a t i o n to t h e
c o u r t u n d e r t h i s R u l e for l e a v e t o e f f e c t s e r v i c e i n
a n y m a n n e r for w h i c h l e a v e o f c o u r t i s n e c e s s a r y
shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his
behalf, s e t t i n g forth t h e g r o u n d s for t h e a p p l i c a t i o n . (19)
NOTES
1. U n d e r t h e s e provisions, service of s u m m o n s by
publication is a u t h o r i z e d , w i t h prior leave of court:
a. W h e r e t h e identity of t h e defendant is u n k n o w n ;
b. Where t h e w h e r e a b o u t s of t h e defendant is unknown;
c. W h e r e t h e d e f e n d a n t does not reside a n d is not
found i n t h e P h i l i p p i n e s b u t t h e s u i t c a n p r o p e r l y b e
m a i n t a i n e d a g a i n s t him here, being in rem or quasi in
rem; a n d
260

RULE 14

SUMMONS

SECS. 16-17

d. W h e r e t h e d e f e n d a n t is a r e s i d e n t of t h e
Philippines b u t is temporarily out of the country.
2. S u m m o n s in a s u i t in personam a g a i n s t a
resident of t h e Philippines temporarily absent therefrom
m a y be validly effected by s u b s t i t u t e d service u n d e r
Sec. 7 of t h i s Rule. It is i m m a t e r i a l t h a t the defendant
does not in fact receive actual notice, and the validity of
such service is not affected. While t h e p r e s e n t Sec. 15
provides for modes of service which may also be availed
of in t h e case of a resident defendant temporarily absent,
the n o r m a l mode of service on such temporarily absent
d e f e n d a n t is by such s u b s t i t u t e d service u n d e r Sec. 7
because personal service outside t h e country and service
by publication are not ordinary means of summons
(Montalban, et al. vs. Maxima, L-22997, Mar. 15, 1968).
However, it h a s also been held t h a t in such cases, nonc o m p l i a n c e w i t h t h e m o d e s of service u n d e r Sec. 18
(now, Sec. 16) is a d e n i a l of due process a n d r e n d e r s
the proceedings null and void (Castillo vs. CFI of Bulacan,
G.R. No. 55869, Feb. 29, 1984).
3. Also, it h a s been ruled t h a t where the defendant
is a r e s i d e n t a n d t h e action is in personam, summons by
publication is invalid as being violative of the due
process clause. Plaintiff's recourse, where personal
service fails, is to a t t a c h p r o p e r t i e s of t h e d e f e n d a n t
u n d e r Sec. 1(f), Rule 57, t h u s converting t h e suit to one
in rem or quasi in rem a n d s u m m o n s by p u b l i c a t i o n
will be valid. Where plaintiff fails to or cannot do so, t h e
court should not dismiss t h e action but should order the
case t o b e h e l d p e n d i n g i n t h e a r c h i v e s , s o t h a t t h e
action will not prescribe, until such time as the plaintiff
succeeds i n a s c e r t a i n i n g t h e defendant's w h e r e a b o u t s
or his properties (Pantaleon vs. Asuncion 105 Phil. 761;
Citizen's Surety & Insurance Co., Inc. vs. Melencio-Herrera,
et al, L-32170, Mar. 31, 1971; Magdalena Estate, Inc. vs.
Nieto, et al, G.R. No. 54242, Nov. 25, 1983; Filmerco

261

RULE 14

REMEDIAL LAW COMPENDIUM

SECS. 18-20

Comm. Co., Inc. vs. IAC, et al., G.R. No. 70661, April 9,
1987).
S e c . 18. Proof of service. T h e p r o o f of s e r v i c e
of a s u m m o n s shall be made in writing by the server
a n d s h a l l s e t forth t h e m a n n e r , p l a c e a n d d a t e o f
service; shall specify any papers w h i c h have been
served with the process and the name of the person
who received the same; and shall be sworn to when
m a d e by a p e r s o n o t h e r t h a n a s h e r i f f or h i s d e p u t y .
(20)
S e c . 19. Proof of service by publication. If t h e
service has been made by publication, service may
b e p r o v e d b y t h e affidavit o f t h e p r i n t e r , h i s f o r e m a n
or principal clerk, or of the editor, business or
advertising manager, to w h i c h affidavit a copy of
t h e p u b l i c a t i o n s h a l l b e a t t a c h e d , a n d b y a n affidavit
s h o w i n g the deposit of a copy of the s u m m o n s and
o r d e r for p u b l i c a t i o n i n t h e p o s t o f f i c e , p o s t a g e
prepaid, directed to the defendant by registered mail
t o h i s l a s t k n o w n a d d r e s s . (21)
S e c . 20. Voluntary appearance. T h e d e f e n d a n t ' s
voluntary appearance in the action shall be
equivalent to service of summons. The inclusion
in a m o t i o n to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant
s h a l l n o t b e d e e m e d a v o l u n t a r y a p p e a r a n c e . (23a)
NOTE
1. Any form of a p p e a r a n c e in c o u r t , by t h e
defendant, by his a g e n t authorized to do so, or by attorney,
is e q u i v a l e n t to service except w h e r e such a p p e a r a n c e is
precisely to object to t h e jurisdiction of t h e court over t h e
person of t h e d e f e n d a n t
(Carballo vs. Encarnacion, 92
Phil. 974). See Notes 4 a n d 5 u n d e r Sec. 1, Rule 16.
262

R U L E 15
MOTIONS
S e c t i o n 1. Motion defined. A m o t i o n is an
a p p l i c a t i o n for r e l i e f o t h e r t h a n b y a p l e a d i n g , ( l a )
NOTE
1. T h i s a m e n d e d d e f i n i t i o n of a m o t i o n is a
consequence of t h e provisions of Sec. 1, Rule 6 which limit
the m e a n i n g of a pleading to t h e w r i t t e n s t a t e m e n t of the
respective claims a n d defenses submitted by the p a r t i e s
for a p p r o p r i a t e j u d g m e n t , and Sec. 2 of t h e same Rule
which e n u m e r a t e s t h e pleadings allowed. However, as
explained in t h e notes t h e r e u n d e r , a motion may also be
considered in a broad sense as in t h e n a t u r e of a pleading
since it is among t h e p a p e r s filed in court. Hence, Sec. 10
of t h i s Rule r e q u i r e s a qualified application to motions of
the rules applicable to pleadings.
S e c . 2. Motions must be in writing. All m o t i o n s
shall be in writing except those made in open court
or in t h e c o u r s e of a h e a r i n g or trial. (2a)
S e c . 3. Contents. A m o t i o n s h a l l s t a t e t h e
relief sought to be obtained and the grounds upon
which it is based, and if required by these Rules or
necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other
p a p e r s . (3a)
S e c . 4. Hearing of motion. E x c e p t for m o t i o n s
which the court may act upon without prejudicing
t h e r i g h t s o f t h e a d v e r s e party, e v e r y w r i t t e n m o t i o n
s h a l l b e s e t for h e a r i n g b y t h e a p p l i c a n t . E v e r y
written motion required to be heard and the notice
263

REMEDIAL LAW COMPENDIUM

of the hearing thereof shall be served in such a


m a n n e r as to ensure its receipt by the other party
a t l e a s t t h r e e (3) d a y s b e f o r e t h e d a t e o f h e a r i n g ,
u n l e s s t h e c o u r t for g o o d c a u s e s e t s t h e h e a r i n g o n
s h o r t e r n o t i c e . (4a)
NOTES
1. T h e exceptions to t h e t h r e e - d a y notice r u l e in
Sec. 4 a r e : (a) ex parte m o t i o n s , (b) u r g e n t m o t i o n s
(Bautista vs. Mun. Council of Mandaluyong, Rizal, 98
Phil.
409; Supreme Investment Corp.
vs. Engineering
Equipment, Inc., L-25755, April 11, 1972), (c) motions
agreed upon by t h e p a r t i e s to be h e a r d on s h o r t e r notice
(Tuazon & Co. vs. Magdangal, L-15047, Jan. 30, 1962)
or jointly s u b m i t t e d by t h e p a r t i e s , a n d (d) motions for
s u m m a r y j u d g m e n t which m u s t be served at least 10 days
before its h e a r i n g (Sec. 3, Rule 35).
2. This a m e n d e d section e n u n c i a t e s t h e g e n e r a l rule
t h a t all w r i t t e n motions shall be set for h e a r i n g , even if,
as j u s t s t a t e d , t h a t h e a r i n g may be conducted on less t h a n
3 days advance notice. Excepted from such r e q u i r e m e n t
for h e a r i n g a r e t h e so-called non-litigable or non-litigated
motions, m e a n i n g those which may be acted upon by t h e
court w i t h o u t prejudicing t h e r i g h t s of t h e adverse p a r t y .
While a motion m a y be allowed to be filed ex parte
a n d is an exception to t h e 3-day notice rule, it does not
necessarily m e a n t h a t t h e h e a r i n g thereof shall be dispensed with. The court may still h e a r t h e s a m e ex parte,
t h a t is, in t h e absence of t h e opposing p a r t y , since t h e
court can very well see to it t h a t t h e l a t t e r ' s i n t e r e s t s will
be duly protected. An ex parte proceeding merely m e a n s
t h a t it is t a k e n or g r a n t e d at t h e i n s t a n c e a n d for t h e
benefit of one p a r t y , a n d w i t h o u t notice to or contestation
by a n y p a r t y a d v e r s e l y a f f e c t e d (Janin vs. Logan,
209 Ky. 811, 273 S.W. 531; Stella vs. Mosele, 209 III.
App. 53, 19 N.E. 2d 433).
264

RULE 15

MOTIONS

SECS. 5-6

3. It is no longer sufficient to j u s t mail a copy of t h e


motion at least 3 days before t h e scheduled hearing, as
this mode of service h a s often been abused to result in the
adverse p a r t y ' s receipt of such copy after t h e scheduled
h e a r i n g due to t h e delay in t h e mails. Service of t h a t
copy, u n d e r t h i s new section, should be m a d e in such
m a n n e r as shall e n s u r e receipt of t h a t copy at least 3 days
before t h e h e a r i n g . This objective can very easily be
achieved by p e r s o n a l service whenever feasible. For this
r e a s o n , S e c . 11 of R u l e 13 p r o v i d e s t h a t , w h e n e v e r
practicable, service of pleadings and other p a p e r s shall be
done personally, subject to t h e exceptions and sanctions
specified t h e r e i n .
S e c . 6. Notice of hearing. T h e n o t i c e of h e a r i n g
s h a l l b e a d d r e s s e d t o all p a r t i e s c o n c e r n e d , a n d s h a l l
specify the time and date of the hearing w h i c h must
n o t b e l a t e r t h a n t e n (10) d a y s after t h e f i l i n g o f t h e
m o t i o n . (5a)
S e c . 6. Proof of service necessary. No w r i t t e n
m o t i o n s e t for h e a r i n g s h a l l b e a c t e d u p o n b y t h e
c o u r t w i t h o u t p r o o f o f s e r v i c e thereof. (6a)
NOTES
1. In t h e C o u r t s of F i r s t I n s t a n c e (now, Regional
Trial Courts) and t h e lower courts, a motion which does
not contain a notice of time and place of hearing is a useless
piece of p a p e r and of no legal effect, e.g., in the case of a
motion for reconsideration of a j u d g m e n t or final order, it
does not interrupt the reglementary period (Manila Surety
& Fidelity Co., Inc. vs. Bath Construction & Co., LI6636,
June 24,
1965; cf. Sebastian vs.
Cabal, L-25699,
April 30, 1970). The same is t r u e where the date for the
h e a r i n g of t h e motion is u n i n t e l l i g i b l e , hence fatally
defective (Republic Planters Bank, et al. vs. IAC, et al.,
G.R. No. 63805, Aug. 31, 1984).
265

RULE 16

REMEDIAL LAW COMPENDIUM

SECS. 5-6

2. Any motion t h a t does not comply w i t h Sees. 4, 5


a n d 6 of t h i s Rule is a mere scrap of p a p e r , should not be
accepted for filing and, if filed, is not entitled to judicial
cognizance a n d does not affect any r e g l e m e n t a r y period
involved for t h e filing of t h e requisite pleading. T h u s ,
w h e r e t h e motion is (a) directed to t h e clerk of court, not
to t h e p a r t i e s , a n d (b) merely s t a t e s t h a t t h e s a m e is
s u b m i t t e d "for t h e resolution of t h e court upon receipt
thereof," said motion is fatally defective (Cledera, et al.
vs. Sarmiento, et al., L-32450-51, June 10, 1971). This
r u l e h a s b e e n a p p l i e d t o m o t i o n s for n e w t r i a l o r
reconsideration w h e r e no d a t e for h e a r i n g t h e motion is
i n d i c a t e d (Manila Surety & Fidelity Co.
vs. Bath
Construction & Co., supra; Fulton Insurance Co. vs.
Manila Railroad Co., L-24263, Nov. 18, 1967; Magno vs.
Ortiz, L-22670, Jan. 31, 1969; In the Matter of Proceedings
for Disciplinary Action Against Vicente Almacen, L-27654,
Feb. 18, 1970; Sebastian vs. Cabal, supra; Vda. deAzarias
vs. Maddela, et al., L-25932, Mar. 19, 1971; Phil.
Advertising Counselors, Inc. vs. Revilla, et al., L-31869,
Aug. 8, 1973; Sacdalan vs. Bautista, L-38014, Mar. 27,
1974; New Japan Motors, Inc.
vs. Perucho, L-44387,
Nov. 5, 1976; Firme, et al. vs. Reyes, et al., L-35858,
Aug. 21, 1979).
Where the motion to dismiss, with such defective notice
of h e a r i n g , w a s grounded on lack of cause of action a n d
improper venue, which grounds a r e resolvable on t h e basis
of the complaint and the annexes thereto, such error
a l t h o u g h n o t wholly e x c u s a b l e w a s g r a n t e d a l i b e r a l
consideration a n d given due course by t h e S u p r e m e Court
(Azajor vs. CA, et al, L-40945, Nov. 10, 1986).
3. In Andrada, et al. vs. CA, et al. ( L - 3 1 7 9 1 ,
Oct. 30, 1974), it w a s held t h a t a " M a n i f e s t a t i o n a n d
Motion" a d d r e s s e d to t h e clerk of court a s k i n g h i m to
s u b m i t t h e s a m e to t h e court "immediately upon receipt
t h e r e o f did not comply w i t h t h e r e q u i r e m e n t s of Sec. 5,
266

RULE 15

MOTIONS

SECS. 8, 9

Rule 15 a n d t h e s u b s e q u e n t action of t h e court thereon


did not cure t h e flaw, for a motion with a notice fatally
defective is a "useless piece of paper." B u t a motion (to
dismiss) is sufficient even if notice of t h e hearing thereof
is addressed to t h e opposing counsel as long as it s t a t e s
the time a n d place of h e a r i n g (OMICO Mining & Ind.
Corp., et al vs. Vallejos, et al, L-38974, Mar. 25, 1975).
The provisions of Sec. 4 requiring the notice to be addressed
to the opposing party is merely directory. What is
m a n d a t o r y is t h e service of t h e motion on the opposing
counsel indicating t h e time and place of hearing (Estipona
vs. Navarro, et al, L-41825, Jan. 30, 1976; Maturan vs.
Araula, G.R. No. 57392, Jan. 30, 1982). Even if t h e notice
in t h e motion is defective for failure to s t a t e the exact date
of h e a r i n g , t h e defect is c u r e d by t h e c o u r t ' s t a k i n g
cognizance thereof and t h e fact t h a t the adverse p a r t y
was otherwise notified of t h e existence of said pleading
(Sun Uy Giok vs. Matusa, 101 Phil. 727).
S e c . 7. Motion day. E x c e p t f o r m o t i o n s
r e q u i r i n g i m m e d i a t e a c t i o n , all m o t i o n s s h a l l b e
s c h e d u l e d for h e a r i n g o n F r i d a y a f t e r n o o n s , o r i f
Friday is a n o n - w o r k i n g day, in the afternoon of
t h e n e x t w o r k i n g d a y . (7a)
NOTE
1. This amended section was t a k e n from B.P. Big.
129 which provides:
"Sec. 16. Time and duration of sessions. The time
and d u r a t i o n of daily sessions of the Regional Trial Courts
shall be d e t e r m i n e d by t h e S u p r e m e Court: Provided,
however, T h a t a l l m o t i o n s , e x c e p t t h o s e r e q u i r i n g
immediate action, shall be heard in the afternoon of every
Friday, u n l e s s it falls on a holiday, in which case t h e
hearing shall be held on the afternoon of the next
succeeding b u s i n e s s day: Provided, further, T h a t t h e
267

RULE 15

REMEDIAL LAW COMPENDIUM

SECS. 8-9

S u p r e m e C o u r t may, for good r e a s o n s , fix a different


motion day in specified areas."
S e c . 8. Omnibus motion. S u b j e c t to t h e
p r o v i s i o n s of s e c t i o n 1 of R u l e 9, a m o t i o n a t t a c k i n g
a pleading, order, judgment, or p r o c e e d i n g shall
i n c l u d e all o b j e c t i o n s t h e n a v a i l a b l e , a n d all
objections not so included shall be deemed waived.
(8a)
NOTES
1. The omnibus motion rule in Sec. 8 yields to other
specific p r o v i s i o n s . T h u s , for i n s t a n c e , in a motion to
dismiss, t h e failure to object to t h e lack of jurisdiction over
t h e c a s e does not c o n s t i t u t e w a i v e r of t h i s objection.
See Sec. 1, Rule 9, as amended, and t h e discussion t h e r e i n .
2. R e g a r d i n g evidence on motions, see Sec. 7, Rule
133 and notes t h e r e u n d e r .
S e c . 9. Motion for leave. A m o t i o n for l e a v e to
file a p l e a d i n g o r m o t i o n s h a l l b e a c c o m p a n i e d b y
t h e p l e a d i n g o r m o t i o n s o u g h t t o b e a d m i t t e d , (n)
NOTES
1. The evident p u r p o s e of t h i s new provision is to
provide t h e court with t h e basis for determining the merits
of t h e motion for leave of court to file t h e desired pleading
or motion. Such pleading or motion sought to be a d m i t t e d
is now required to be a t t a c h e d to t h e motion for leave of
court, otherwise t h e l a t t e r m a y be denied. Indeed, it is
too d e m a n d i n g , if not unfair to t h e court a n d t h e adverse
party, to seek a ruling a n d t h e admission of a pleading
sight u n s e e n , so to s p e a k , since t h e court will have to
fathom t h e c o n t e n t s of t h e projected p l e a d i n g a n d t h e
opposing p a r t y cannot intelligently formulate his
268

RULE 15

MOTIONS

SEC. 10

opposition to t h e admission thereof.


2. This particularly assumes significance in the filing
of a m e n d e d a n d s u p p l e m e n t a l pleadings both of which
require prior leave of court. If initiatory pleadings are
sought to be a m e n d e d or supplemented, special care m u s t
be t a k e n in t h e admission of t h e same since responsive
p l e a d i n g s a n d r e g l e m e n t a r y periods may be involved.
Also, t h e p r e s e n t r e q u i r e m e n t minimizes the time element
when responsive pleadings would be required. Thus, when
an a m e n d e d or s u p p l e m e n t a l complaint is attached to the
motion for its admission a n d a copy thereof is necessarily
served on t h e defendant, his period to answer immediately
runs from his receipt of the court order admitting the same.
Otherwise, w h e r e only a motion is filed and the same is
g r a n t e d , t h e plaintiff will be g r a n t e d t i m e to file t h e
amended or s u p p l e m e n t a l complaint, the defendant will
have to wait for service on him thereof, and consequently
he will have further time to answer.
S e c . 10. Form. T h e R u l e s a p p l i c a b l e t o
p l e a d i n g s s h a l l a p p l y t o w r i t t e n m o t i o n s s o far a s
concerns caption, designation, signature, and other
m a t t e r s o f form. (9a)

269

R U L E 16
M O T I O N TO D I S M I S S
S e c t i o n 1. Grounds. W i t h i n t h e t i m e for b u t
before filing the answer to the complaint or
p l e a d i n g a s s e r t i n g a claim, a m o t i o n to d i s m i s s may
be made on any of the following grounds:
(a) T h a t t h e c o u r t h a s n o j u r i s d i c t i o n o v e r t h e
p e r s o n of the d e f e n d i n g party;
(b) T h a t t h e c o u r t h a s n o j u r i s d i c t i o n o v e r t h e
subject matter of the claim;
(c) T h a t v e n u e i s i m p r o p e r l y laid;
(d) T h a t t h e p l a i n t i f f h a s n o l e g a l c a p a c i t y t o
sue;
(e) T h a t t h e r e i s a n o t h e r a c t i o n p e n d i n g
b e t w e e n t h e s a m e p a r t i e s for t h e s a m e c a u s e ;
(f) T h a t t h e c a u s e of a c t i o n is b a r r e d by a p r i o r
judgment or by the statute of limitations;
(g) T h a t t h e p l e a d i n g a s s e r t i n g t h e c l a i m s t a t e s
no cause of action;
(h) T h a t t h e c l a i m o r d e m a n d s e t f o r t h i n t h e
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) T h a t t h e c l a i m o n w h i c h t h e a c t i o n i s
founded is unenforceable under the provisions of
the statute of frauds; and
(j) T h a t a c o n d i t i o n p r e c e d e n t for f i l i n g t h e
c l a i m h a s n o t b e e n c o m p l i e d w i t h , (la)
NOTES
1.

A motion to dismiss u n d e r t h i s Rule differs from a

270

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SEC. 1

motion to dismiss u n d e r Rule 33 on d e m u r r e r to evidence


in the following p a r t i c u l a r s :
a. The motion u n d e r this Rule is grounded on
preliminary objections while t h a t u n d e r Rule 33 is based
on insufficiency of evidence.
b. The motion here may be filed by any defending
p a r t y a g a i n s t w h o m a claim is a s s e r t e d in t h e action,
while a d e m u r r e r to evidence may be filed only by t h e
defendant against t h e complaint of the plaintiff.
c. The motion u n d e r this Rule should be filed within
the time for but prior to t h e filing of the answer of the
defending party to t h e pleading asserting the claim against
him. The d e m u r r e r to evidence in Rule 33 may be filed
for t h e dismissal of the case only after the plaintiff has
completed t h e p r e s e n t a t i o n of his evidence.
d. The r e v e r s a l on a p p e a l of a dismissal o r d e r e d
u n d e r this Rule produces different effects from t h e same
reversal of a dismissal obtained u n d e r Rule 33.
2. The former Sec. 2 of t h i s Rule provided t h a t a
motion to dismiss h e r e u n d e r may be filed by an original
defendant, by a t h i r d - p a r t y defendant, by a plaintiff in a
counterclaim, or by a co-party in a cross-claim. Although
said former provision h a s not been reproduced in t h i s
amended Rule, t h e procedure is still t h e same as Sec. 1
hereof merely simplified t h e rule by providing t h a t such
motion to dismiss may be filed by a p a r t y "(w)ithin the
time for but before filing t h e answer to the complaint or
pleading asserting a claim."
3. A motion to dismiss hypothetically admits the
t r u t h of t h e facts alleged in the complaint. Such admission, however, is limited only to all material and relevant
facts which are well pleaded in the complaint. It does not
a d m i t t h e t r u t h of m e r e e p i t h e t s c h a r g i n g fraud, nor
allegations of legal conclusions, or erroneous s t a t e m e n t s
of law. The hypothetical admission of the t r u t h of material
271

RULE 16

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SEC. 1

a n d r e l e v a n t facts well pleaded in a complaint does not


extend to inferences or conclusions d r a w n from such facts,
even if alleged in t h e complaint; nor m e r e inferences or
c o n c l u s i o n s from facts not s t a t e d ; n o r to m a t t e r s of,
evidence, s u r p l u s a g e or i r r e l e v a n t m a t t e r s (De Dios vs.
Bristol Laboratories fPhil.J, Inc., et al., L-25530, Jan. 29,
1974); nor does it cover allegations of fact t h e falsity of
which is subject to judicial notice, for, in resolving a motion
to dismiss, t h e court may consider o t h e r facts w i t h i n t h e
r a n g e o f j u d i c i a l notice a s well a s r e l e v a n t l a w s a n d
j u r i s p r u d e n c e which courts are bound to t a k e into account
(Bahez Electric Light Co. vs. Abra Electric Cooperative,
Inc., et al., G.R. No. 59480, Dec. 8, 1982). N e i t h e r does
s u c h h y p o t h e t i c a l admission e x t e n d to facts which a r e
legally impossible, nor to facts inadmissible in evidence,
nor to facts which a p p e a r by record or d o c u m e n t included
in t h e p l e a d i n g s to be u n f o u n d e d (Tan vs. Director of
Forestry, et al., L-24548, Oct. 27, 1983; Marcopper Mining
Corp. vs. Garcia, G.R. No. 55935, July 30, 1986).
Except in those cases w h e r e t h e court may dismiss a
case motu proprio, an action c a n n o t be d i s m i s s e d on a
g r o u n d not alleged in t h e motion therefor e v e n if said
g r o u n d , e.g., p r e s c r i p t i o n , is p r o v i d e d for in R u l e 16
(Malig, et al. vs. Bush, L-22761, May 31, 1969), u n l e s s
s u c h fact of p r e s c r i p t i o n a p p e a r s in t h e a l l e g a t i o n s of
t h e complaint or in plaintiffs' evidence (Garcia vs. Mathis,
etc., et al, L-48557, Sept. 30, 1980).
W i t h m u c h more
reason should an order of dismissal be nullified if it is based
on a ground not a u t h o r i z e d by Rule 16, i.e., for supposedly
being moot a n d academic (Borje vs. CFI of Misamis Occ,
etc., et al, L-49315, Feb. 27, 1979).
4. The former doctrinal policy w a s t h a t a p a r t y may
challenge t h e jurisdiction of t h e court over his p e r s o n by
m a k i n g a special a p p e a r a n c e t h r o u g h a motion to dismiss
b a s e d on t h e g r o u n d , e.g., of i n v a l i d i t y of s e r v i c e of
s u m m o n s , a n d by filing such motion, he will not t h e r e b y
be deemed to have s u b m i t t e d himself to t h e jurisdiction of
272

RULE 16

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SEC. 1

the court. However, if t h e same motion also raised other


grounds or invoked some affirmative relief which
necessarily involves t h e exercise of the jurisdiction of t h e
court, such special appearance will be of no avail and the
p a r t y is thereby deemed to have submitted himself to the
jurisdiction of t h e court. T h u s , where t h e defendant filed
a motion to dismiss on t h e ground t h a t summons served
on him was invalid and, therefore, t h a t the court did not
acquire jurisdiction over his person, but the same motion
s e t s forth a n o t h e r ground u n d e r t h e n Art. 222 of t h e
Civil Code (lack of s h o w i n g t h a t e a r n e s t efforts w e r e
exerted to effect a compromise between members of the
same family) and prayed "for such other r e l i e f as may be
deemed "appropriate and proper," t h e reservation in said
motion t h a t defendant was making a special appearance
to contest the court's jurisdiction over his person is nullified
and s h o u l d be d i s r e g a r d e d (De Midgely vs. Ferandos,
L-34313, May 13, 1975). The same rule applied where
the defendant challenged t h e court's jurisdiction over its
person for invalidity of service of process but at the same
time raised t h e other ground of prescription in its motion
to dismiss (Republic vs. Ker & Co., Ltd., 124 Phil. 823).
5. However, in La Naval Drug Corp. vs. CA, et al.
(G.R. No. 103200, Aug. 3 1 , 1994), t h e S u p r e m e Court
decided to reexamine and abandon the foregoing doctrine.
It held t h a t while lack of jurisdiction over the person of
the d e f e n d a n t may be duly and seasonably raised, his
voluntary appearance in court without qualification is a
waiver of such defense. Furthermore, even if he challenges
the jurisdiction of the court over his person, as by reason
of absence or defective service of summons, and he also
invokes other grounds for the dismissal of the action under
Rule 16, he is not deemed to be in estoppel or to have
waived his objection to jurisdiction over his person. In
support of this new doctrine, the observation may be added
t h a t t h e defendant may after all invoke his objections
alternatively, hence he would not thereby be said to be
273

RULE 16

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SEC. 1

inconsistently challenging t h e jurisdiction of t h e court


a n d , at t h e s a m e t i m e , calling for t h e e x e r c i s e of its
jurisdiction. The first questions t h e jurisdiction over his
person b u t t h e second, a s s u m i n g t h e court h a s jurisdiction
over his person, impugns its jurisdiction over other aspects
of t h e case such as the fundamental requisite of jurisdiction
over t h e subject-matter which can only be conferred by
law. B e s i d e s , t h e p r e s e n t a t i o n of all objections t h e n
a v a i l a b l e s u b s e r v e s t h e o m n i b u s motion r u l e a n d t h e
concomitant policy a g a i n s t multiplicity of s u i t s .
T h e r e were, however, some differences of opinion due
to c e r t a i n ambiguous s t a t e m e n t s in t h e La Naval case.
Accordingly, Sec. 20 of Rule 14 now expressly provides
t h a t t h e inclusion in a motion to dismiss of o t h e r g r o u n d s
a s i d e from lack of j u r i s d i c t i o n over t h e p e r s o n of t h e
d e f e n d a n t s h a l l not be deemed a v o l u n t a r y a p p e a r a n c e
on his p a r t .
6. W h e r e s u m m o n s w a s not s e r v e d on t w o of t h e
d e f e n d a n t s a n d a lawyer filed, in t h e i r behalf b u t w i t h o u t
t h e i r a u t h o r i t y , a motion for extension of t i m e to a n s w e r ,
the court does not acquire jurisdiction over said defendants.
N e i t h e r w a s s u c h j u r i s d i c t i o n a l defect c u r e d b y t h e i r
s u b s e q u e n t filing of a motion for new t r i a l as t h e s a m e
w a s based precisely on such defect a n d to secure to said
d e f e n d a n t s t h e o p p o r t u n i t y to be h e a r d (Cavili, et al. vs.
Vamenta, Jr., etc., et al., G.R. No. 57771, May 31, 1982).
For obvious reasons, the considerations discussed in
De Midgely a n d La Naval h a v e no a p p l i c a t i o n to t h i s
case u n d e r t h e c i r c u m s t a n c e s obtaining t h e r e i n .
7. The controversy r e g a r d i n g t h e ground of lack of
jurisdiction over t h e n a t u r e of t h e action, s e p a r a t e l y from
t h e subject thereof, led to t h e elimination in t h i s Rule of
t h e former which w a s supposedly an innovative ground
in t h e 1964 Rules of Court. W h a t may have been intended
t h e r e i n w e r e c a s e s a s s i g n e d b y law t o q u a s i - j u d i c i a l
agencies, such as intra-corporate suits which were
274

RULE 16

MOTION TO DISMISS

SEC. 1

exclusively vested in the Securities and Exchange


Commission, or to special courts such as tax suits which
were within t h e exclusive jurisdiction of the Court of Tax
Appeals. If so, t h i s would properly c o n s t i t u t e lack of
jurisdiction over t h e subject-matter if such cases are filed
in t h e r e g u l a r t r i a l courts. Within their respective levels,
the r e g u l a r t r i a l courts have uniform jurisdiction with
regard to t h e n a t u r e of t h e actions they may e n t e r t a i n ,
hence if t h e objection is as to the subject or object involved,
it would necessarily be on either subject-matter jurisdiction
or on venue considerations.
8. The jurisdictional grounds which may be invoked
under t h e p r e s e n t Rule are, therefore, confined to lack of
jurisdiction over t h e person of the defending p a r t y and
the s u b j e c t - m a t t e r of t h e claim. The first has already
been discussed, but it must not be overlooked t h a t the t e r m
now used is not limited to t h e defendant but applies to all
defending p a r t i e s against whom claims are asserted
through other initiatory pleadings, such as counterclaims,
cross-claims a n d third-party complaints. Jurisdiction is
obtained over t h e original defendant by service of
summons a n d over t h e other defending parties by service
of t h e p l e a d i n g c o n t a i n i n g t h e c l a i m . Also, as now
amended, t h i s Rule refers to the subject-matter of each
p a r t i c u l a r claim a n d not only to t h a t of t h e suit, as it was
under the former Rule, which thereby applied only to the
complaint.
a. Jurisdiction over the subject-matter is determined
by the allegations in t h e complaint regardless of w h e t h e r
or not t h e plaintiff is entitled to recover upon all or some
of the claims a s s e r t e d therein. The defenses asserted in
the a n s w e r or motion to dismiss are not to be considered
for t h i s purpose, otherwise t h e question would depend
e n t i r e l y u p o n t h e d e f e n d a n t (Magay vs. Estandian,
L-28975, Feb. 27, 1976).

275

RULE 16

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SEC. 1

b. Where a p a r t y invokes t h e jurisdiction of a court


to obtain affirmative relief a n d fails, he c a n n o t t h e r e a f t e r
repudiate such jurisdiction. While t h e issue of jurisdiction
may be raised at any time, he is estopped as it is
t a n t a m o u n t to speculating on t h e fortunes of litigation
(Crisostomo, et al. vs. CA, et al., L-27166, Mar. 26, 1970).
c. Where t h e jurisdiction of t h e court is challenged
a n d t h e court defers resolution of t h e motion or denies t h e
same, certiorari and/or prohibition will lie as it would be
futile for t h e court to go a h e a d if it h a s no jurisdiction
over t h e case. The s a m e rule applies w h e r e t h e ground is
improper venue, as t h e t r i a l court, if t h e petition t u r n s
out to be well founded, is acting in excess of its jurisdiction
(San Beda College vs. CIR, 97 Phil. 787; University of
Sto. Tomas vs. Villanueva, etc., et al, 106 Phil 439; Time,
Inc. vs. Reyes, etc., et al, L-8882, May 31, 1971). This
ruling is still good b u t with t h e modification t h a t , p u r s u a n t
to a m e n d e d Sec. 3 of t h i s Rule, t h e court can no longer
defer resolution of t h e motion.
d. It h a s b e e n held t h a t e v e n if t h e claim in t h e
complaint w a s below t h e jurisdictional limit for t h e t h e n
C o u r t s of F i r s t I n s t a n c e , if t h e d e f e n d a n t , i n s t e a d of
moving to dismiss, filed a counterclaim for P12,000 which
w a s t h e n w i t h i n t h e exclusive original jurisdiction of said
Courts of First Instance, such counterclaim cured t h e defect
in t h e complaint (Zulueta, et al. vs. Pan American World
Airways,
Inc.,
L-28589,
Resolution
on
Motion
for
Reconsideration, Jan. 8, 1973).
It is s u b m i t t e d , however,
t h a t said resolution, u n d e r t h e facts t h e r e i n , w a s more
properly s u s t a i n a b l e u n d e r t h e principle of estoppel by
laches on t h e p a r t of t h e defendant, as discussed in t h e
p r e l i m i n a r y c h a p t e r of t h i s book, a n d which principle was
also r e l i e d o n b y t h e S u p r e m e C o u r t i n i t s a f o r e s a i d
resolution in t h a t case.
e. W h e r e t h e owner of a condominium corporation
sold a u n i t thereof on i n s t a l l m e n t s with reservation of
276

RULE 16

MOTION TO DISMISS

SEC. 1

ownership u n t i l t h e price is fully paid, a n d t h e buyer


defaults, t h e courts, and not t h e Securities and Exchange
Commission, have jurisdiction over the n a t u r e of the action
because t h e owner r e m a i n s as a stockholder for t h e unit
sold, hence no intra-corporate issue is involved (Sunset
View Condominium Corp. vs. Campos, Jr., etc., et al.,
G.R. No. 52361, April 27, 1981). Also, an action to compel
a corporation to issue s h a r e s of its capital stock in payment
of its c o n t r a c t u a l obligation and u n d e r t a k i n g in favor of
t h e plaintiff will not be dismissed on t h e ground t h a t t h e
court has no jurisdiction over the n a t u r e of the action since
such a situation does not involve an intra-corporate m a t t e r
c o n t e m p l a t e d i n P . D . 902-A a n d i s n o t w i t h i n t h e
jurisdiction of t h e Securities and Exchange Commission
(DMRC Enterprises vs. Este del Sol Mountain Reserve, Inc.,
G.R. No. 57936, Sept. 28, 1984). Likewise, an action to
compel t h e corporation to r e g i s t e r t h e s h a r e s of stock
allegedly sold to plaintiffs does not involve an intra-corporate m a t t e r as plaintiffs a r e not yet stockholders b u t are
only seeking to be registered as such (Rivera, et al. vs.
Florendo, et al, G.R. No. 57586, Oct. 6, 1986). However,
an action to compel t h e defendant corporation to render
an accounting and distribution of the s h a r e s of stock, with
the dividends due thereon, of plaintiffs' predecessor-ini n t e r e s t is an intra-corporate conflict and is not within
the jurisdiction of t h e courts b u t of t h e Securities and
Exchange Commission (Malayan Integrated Industries
Corp. vs. Mendoza, etc., et al, G.R. No. 75238, Sept. 30,
1987).
See, in this connection, the Interim Rules of Procedure
for In tr a - Co rp o r at e Controversies (AM. No. 01-2-04-SC),
i m p l e m e n t i n g t h e p r o c e d u r a l c h a n g e s i n R.A. 8799
(Appendix W).
9. Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibition (Enriquez
vs. Macadaeg, 84 Phil. 674; Bautista vs. De Borja, et al,
L-20600, Oct. 28, 1966).
277

RULE 16

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SEC. 1

10. Where t h e plaintiffs filed t h e action in a court of


improper venue and thereafter submitted to its jurisdiction,
t h e issue of v e n u e w a s t h e r e b y waived a n d they are in
estoppel to r e p u d i a t e or question t h e proceedings in said
court
(Vda. de Suan, et al. vs. Cusi, et al., L-35336,
Oct. 27, 1983).
1 1 . Objection to venue is also impliedly waived where
t h e p a r t y e n t e r s into trial, cross-examines t h e w i t n e s s e s
o f t h e a d v e r s e p a r t y a n d a d d u c e s e v i d e n c e (Paper
Industries Corp. of the Phil. vs. Samson, et al., L-30175,
Nov. 28, 1975).
12. Lack of legal capacity to sue m e a n s t h a t t h e plaintiff is e i t h e r not in t h e exercise of his civil r i g h t s or does
not have t h e c h a r a c t e r or r e p r e s e n t a t i o n t h a t he claims
(Lunsod vs. Ortega, 46 Phil. 664).
a. Where the plaintiff is not the real party in
i n t e r e s t , t h e ground for t h e motion to dismiss is lack of
cause of action (Casimiro vs. Roque, et al., 98 Phil. 880).
b. A foreign corporation doing b u s i n e s s in t h e
P h i l i p p i n e s w i t h o u t t h e requisite license to do so c a n n o t
m a i n t a i n any suit in t h e Philippines (Sec. 69, Act 1459,
now Sec. 133, Corporation Code; Marshall-Wells Co. vs.
Elser & Co., 48 Phil. 70; Atlantic Mutual Insurance Co.,
Inc. vs. Cebu Stevedoring Co., Inc., L-18961, Aug. 31,
1966), b u t not w h e r e t h e case involves a m e r e isolated
t r a n s a c t i o n (Aetna Casualty & Surety Co., Inc. vs. Pacific
Star Line, L-26809, Dec. 29, 1977; Hathibhai Bulakhidas
vs. Navarro, et al., L-49695, April 7, 1986).
B u t if t h e
said foreign corporation is sued in our courts, it may, by
writ of prohibition, seek relief a g a i n s t the wrongful
a s s u m p t i o n of jurisdiction a n d its petition therefor need
not a v e r its legal capacity to i n s t i t u t e said proceeding
(Time, Inc. vs. Reyes, etc., et al., supra).
c. The issue of p l a i n t i f f s lack of legal capacity to sue
c a n n o t be raised for t h e first time on a p p e a l w h e r e t h e
278

RULE 16

MOTION TO DISMISS

SEC. 1

defendant dealt with the former as a p a r t y in the


proceedings below
(University of Pangasinan Faculty
Union vs. University of Pangasinan, et al., G.R. No. 63122
Feb. 21, 1984).
13. The pendency of a n o t h e r action, or litis pendentia, as a ground for a motion to dismiss, requires t h a t
t h e p a r t i e s t o t h e action a r e t h e s a m e ; t h a t t h e r e i s
s u b s t a n t i a l identity in t h e causes of action and reliefs
sought; and t h a t the r e s u l t of the first action is
d e t e r m i n a t i v e of t h e second in any event (Northcott &
Co. vs. Villa- Abrille, 41 Phil. 462) and regardless of which
p a r t y is successful (Arceo vs. Oliveros, et al., L-38251,
Jan. 31, 1985). The motion to dismiss may be filed in
e i t h e r s u i t , not necessarily in t h e one i n s t i t u t e d first
(Teodoro vs. Mirasol, 99 Phil.
150; Magsaysay vs.
Magsaysay, et al., L-49847, July 17, 1980).
The S u p r e m e Court has repeatedly held, however,
t h a t w h e n t h e e l e m e n t s of litis pendentia exist, t h e action
filed l a t e r should be abated, based on the maxim t h a t qui
prior est tempore, potior est jure (he who is before in time
is the b e t t e r in right). This is especially t r u e where in the
a c t i o n f i r s t filed, t h e c o u r t h a s a l r e a d y c o m m e n c e d
proceedings
(Pacsports, Phils., Inc. vs. Niccolo Sports,
Inc., G.R. No. 141602, Nov. 22, 2001).
The pendency of an administrative case between the
p a r t i e s does not generally constitute litis pendentia in
a n o t h e r civil or criminal case between t h e m (Solandro
vs. Ramos, et al., L-20408, April 27, 1967). There can be
litis pendentia if t h e same cause of action is the subject of
a complaint in one case and of a counterclaim in a n o t h e r
as long as t h e o t h e r r e q u i s i t e s a r e p r e s e n t (Arceo vs.
Oliveros, et al., supra). This ground is also referred to in
some decisions as lis pendens or outer action pendant
(see Buan, et al. vs. Lopez, G.R. No. 75349, Oct. 13, 1986).
14. Res judicata, as a ground for dismissal, requires
a previous final j u d g m e n t in a case prosecuted between
279

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 1

the same p a r t i e s involving t h e same subject-matter and


cause of action (Roman Catholic Archbishop vs. Director
of Lands, 35 Phil. 339). The t r i a l court can t a k e judicial
notice of the finality of a j u d g m e n t previously decided by
it and the fact t h a t the same case is now pending before
it, t h e defeated p a r t y having refiled t h e s a m e (Baguiao
vs. Jalagat, et al., L-28100, Nov. 29, 1971). The principle
of res judicata a p p l i e s to all c a s e s a n d p r o c e e d i n g s ,
including land registration and cadastral proceedings
(Republic vs. Estenzo, L-35376, Sept. 11, 1980).
See
Sees. 47 a n d 48, Rule 39 and t h e notes t h e r e u n d e r .
15. The defense of prescription is waived a n d cannot
be considered on a p p e a l if not raised in t h e t r i a l court
(Ramos vs. Osorio, L-27306, April 29, 1971; Director
of Lands vs. Dano, et al., L-31749, Feb. 21, 1980).
H o w e v e r , if t h e a l l e g a t i o n s of t h e c o m p l a i n t , or t h e
evidence p r e s e n t e d , clearly indicate t h a t t h e action h a s
p r e s c r i b e d , o r w h e r e t h e r e i s n o i s s u e i n fact a s t o
prescription, t h e defense of prescription is not d e e m e d
waived by defendant's failure to allege t h e s a m e (Chua
Lamko vs. Dioso, 97 Phil. 821; Garcia vs. Mathis, supra).
Generally, estoppel a n d prescription c a n n o t be invoked
a g a i n s t t h e S t a t e (Republic vs. CA, et al., L-45202,
Sept. 11, 1980). En contra, note t h a t t h e r u l e in criminal
cases is different, as discussed in Sec. 9, Rule 117.
16. A motion to dismiss on t h e ground of prescription
will be given due course only if t h e complaint shows on its
face t h a t t h e action h a s a l r e a d y p r e s c r i b e d (Sison vs.
McQuaid, 94 Phil. 201; Francisco, et al. vs. Robles, et al,
94 Phil. 1035; Aznar III, et al. vs. Bemad, etc., et al.,
G.R. No. 81190, May 9, 1988).
If it does not so a p p e a r ,
the determination of the motion to dismiss m u s t be deferred
u n t i l t r i a l (Cordova vs. Cordova, 102 Phil. 1182; Seno, et
al. vs. Mangubat, et al., L-44339, Dec. 2,
1987).
See, however, Sec. 3 of t h i s Rule which now prohibits
deferment of t h e resolution of t h e motion.

280

RULE 16

MOTION TO DISMISS

17. W h e n t h e g r o u n d for d i s m i s s a l i s t h a t t h e
c o m p l a i n t s t a t e s no c a u s e of action, such fact can be
determined only from t h e facts alleged in the complaint
(Mindanao Realty Corp. vs. Kintanar, et al., L-17152,
Nov. 30, 1962) and from no other (Marabilles vs. Quito,
100 Phil. 64; Boncato vs. Siason, et al., L-29094, Sept. 5,
1985), and the court cannot consider other m a t t e r s aliunde
(Salvador vs. Frio, L-25352, May 29, 1970).
This implies
t h a t t h e issue m u s t be passed upon on t h e basis of the
allegations a s s u m i n g t h e m to be t r u e and t h e court cannot
inquire into t h e t r u t h of t h e allegations and declare t h e m
to be false; otherwise, it would be a procedural e r r o r and
a d e n i a l of d u e p r o c e s s to t h e plaintiff (Ventura vs.
Bernabe, L-26769, April 30, 1971; Galeon vs. Galeon, et
al., L-30380, Feb. 28, 1973).
The exception was provided
by t h e former Sec. 2, Rule 9, i.e., w h e r e t h e motion to
dismiss on t h i s ground could be filed during the trial, in
which case t h e evidence presented was to be considered.
Also, it h a s been held t h a t u n d e r this ground the trial
c o u r t c a n c o n s i d e r all t h e p l e a d i n g s filed, i n c l u d i n g
annexes, motions and t h e evidence on record (Marcopper
Mining Corp. vs. Garcia, G.R. No. 55935, July 30, 1986),
i n c l u d i n g d o c u m e n t a r y evidence s t i p u l a t e d upon a n d
which is before the court (Santiago vs. Pioneer Savings
& Loan Bank, et al., G.R. No. 77502, Jan. 15, 1983).
However, it h a s likewise been held t h a t even if the
complaint stated a valid cause of action, a motion to dismiss
for insufficiency of c a u s e of action will be g r a n t e d if
documentary evidence admitted by stipulations discloses
facts sufficient to defeat t h e claim and enables the court
to go beyond t h e disclosures in the complaint. In such
instances, the court can dismiss a complaint on this ground
e v e n w i t h o u t a h e a r i n g , by t a k i n g i n t o a c c o u n t t h e
discussions in said motion a n d t h e opposition t h e r e t o
(Tan vs. Director of Forestry, et al., L-24548, Oct. 27, 1983).
This controversy which a p p e a r e d to have been due to
confusion over t h e s i t u a t i o n s w h e r e i n t h e c o m p l a i n t
281

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 1

does n o t allege a sufficient c a u s e of a c t i o n a n d t h a t


wherein, at t h e trial, t h e evidence does not s u s t a i n the
cause of action alleged, h a s been clarified by incorporating
said Sec. 2 in an a m e n d e d form as t h e p r e s e n t Sec. 1 of
Rule 9. Refer to said new provision a n d t h e notes
thereunder.
a. Courts should exercise utmost care and
circumspection in passing upon motions to dismiss
based on t h i s ground (Militante vs. Antero, et al., L-27940,
June 10, 1971). T h e t e s t is w h e t h e r , a s s u m i n g t h e
a l l e g a t i o n s of fact in t h e c o m p l a i n t , a valid j u d g m e n t
could be r e n d e r e d in accordance w i t h t h e p r a y e r in t h e
complaint. W h e r e t h e allegations a r e sufficient b u t t h e
veracity of t h e facts a r e assailed, t h e motion to dismiss
s h o u l d be d e n i e d (Suyom, et al. vs. Collantes, et al.,
L-40337, Feb. 27, 1976).
b. W h e r e t h e facts alleged to m a k e out t h e principal
cause of action a n d relief a r e insufficient, t h e case should
be dismissed a n d plaintiff cannot rely on ancillary m a t t e r s
in t h e c o m p l a i n t to m a k e out a c a u s e of action. T h u s ,
w h e n t h e action is for cancellation of t h e d e f e n d a n t ' s title
b u t t h e allegations t h e r e i n a r e i n a d e q u a t e , plaintiff cannot
lean on his allegations of supposed i m p r o v e m e n t s made
on t h e land as t h e s e a r e p u r e l y ancillary to t h e principal
relief s o u g h t (Gabila vs. Barriaga, L 28917, Sept. 30,
1971). N e i t h e r can such defect be cured by t h e allegations
in a c o m p l a i n t in i n t e r v e n t i o n filed by a t h i r d p a r t y
(Nacar vs. Nistal, et al., L-33006, Dec. 8, 1982).
c. W h e r e a complaint does not contain all t h e facts
c o n s t i t u t i n g t h e p l a i n t i f f s cause of action, it is subject to
a motion to dismiss. However, if t h e d e f e n d a n t p e r m i t s
evidence to be introduced, w i t h o u t objection, which
supplies the necessary allegation in such defective
complaint, this evidence cures t h e defects of such complaint
which m a y no longer be dismissed on t h a t account and
t h e court s h a l l a w a r d such relief as is c o n s i s t e n t w i t h the

282

RULE 16

MOTIONS TO DISMISS

SEC. 1

case m a d e out by t h e pleadings and the evidence (Pascua


vs. CA, et al., G.R. No. 76851, Mar. 19, 1990).
18. Unlike a motion to dismiss on t h e ground t h a t
the complaint s t a t e s no cause of action, a motion invoking
the S t a t u t e of F r a u d s may be filed even if t h e absence of
a c a u s e of a c t i o n does not a p p e a r on t h e face of t h e
complaint. Such absence may be proved during the
hearing of t h e motion to dismiss on said ground (Yuvienco,
et al. vs. Dacuycuy, etc., et al., G.R. No. 55048, May 27,
1981). For t h e S t a t u t e of F r a u d s , see Arts. 1403(2), 1405
and 1406, Civil Code.
19. The former Rule did not provide specific grounds
for a motion to dismiss where t h e action, was filed without
the plaintiff having exhausted all administrative remedies
before going to court, a basic rule of political law which is
accepted in adjective law. Similarly, it did not have any
such provision, because it was not t h e n contemplated, for
t h e s i t u a t i o n w h e r e p r i o r r e f e r r a l for c o n c i l i a t i o n
proceedings was required by the Katarungang
P a m b a r a n g a y Law (P.D. 1508), and l a t e r by t h e Local
Government Code (R.A. 7160), before the case may be filed
i n c o u r t a n d t h e p l a i n t i f f did not comply w i t h s u c h
prerequisite. The remedy t h e n was to authorize a motion
to dismiss such action for failure to state a cause of action
or even for p r e m a t u r i t y , d e s p i t e t h e d u b i e t y of s u c h
grounds.
On the other hand, t h e n Sec. l(j) of said Rule provided
as a ground for a motion to dismiss the fact t h a t the suit
was between m e m b e r s of t h e same family and no e a r n e s t
efforts t o w a r d s a compromise have been m a d e , which
provision was actually t a k e n from Art. 222 of the Civil
Code. These t h r e e s i t u a t i o n s , and other similar
contingencies, are now embraced in and assailable under
the new ground for dismissal provided in the revised Rule,
t h a t is, non-compliance with a condition precedent for the
filing of t h e claim.
283

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 1

Save for t h e change in terminology, therefore, t h e


former rulings by t h e S u p r e m e Court on said s i t u a t i o n s
a r e s t i l l a p p l i c a b l e mutatis mutandis a n d a r e w o r t h
reproducing herein, b u t w i t h t h e caveat on t h e grounds
t h e n availed of, as provided in t h e former Rule.
a. Where the plaintiff has not e x h a u s t e d all
a d m i n i s t r a t i v e remedies, t h e complaint not having alleged
t h e fact of such e x h a u s t i o n , t h e s a m e may be dismissed
for lack of cause of action (Pineda vs. CFI of Davao, et al.,
L-12602, April 25, 1961; Sarabia vs. Sec. of Agriculture
and Natural Resources, L-16002, May 23, 1961; Gone, et
al. vs. District Engineer, et al, L-22782, Aug. 29, 1975;
Abe-Abe, et al vs. Manta, et al, L-4827, May 31, 1978),
a l t h o u g h it does not affect t h e jurisdiction of t h e court
over t h e s u b j e c t - m a t t e r (Mun. of La Trinidad, et al. vs.
CFI of Baguio-Benguet, et al, L-33889, June 28, 1983).
If this objection is not raised at t h e proper time, it is waived
a n d t h e c o u r t can t r y t h e case (C.N. Hodges vs. Mun.
Board, etc., et al, L-18276, Jan. 12, 1967; Soto vs. Jareno,
et al, L-38962, Sept. 15, 1986). For t h e i n s t a n c e s w h e r e
e x h a u s t i o n of a d m i n i s t r a t i v e remedies is not required, see
Note 7 u n d e r Sec. 5, Rule 1.
b. It w a s believed t h a t t h e s a m e doctrinal r u l e s will
apply w h e r e t h e case w a s covered by t h e K a t a r u n g a n g
P a m b a r a n g a y Law (P.D. 1508) a n d not excepted from t h e
compulsory process of a r b i t r a t i o n r e q u i r e d t h e r e i n as a
precondition for filing a complaint in court. T h u s , w h e r e
t h e complaint does not s t a t e t h a t it is one of t h e excepted
cases, or it does not allege prior a v a i l m e n t of said
conciliation process, or it does not have a certification t h a t
no conciliation or s e t t l e m e n t h a d b e e n r e a c h e d by t h e
p a r t i e s , t h e case s h o u l d be d i s m i s s e d on motion. T h i s
applies to cases cognizable by both t h e inferior courts a n d
t h e Regional T r i a l C o u r t s (Morata vs. Go, et al, G.R.
No. 62339, Oct. 27, 1983).
S u b s e q u e n t l y , in Royales, et al. vs. Intermediate
Appellate Court, et al. (G.R. No. 65072, J a n . 3, 1984),
284

RULE 16

MOTION TO DISMISS

SEC. 1

where the defendant-appellant had participated in the trial


c o u r t w i t h o u t a n y i n v o c a t i o n o f P . D . 1508 a n d t h e
j u d g m e n t t h e r e i n had become executory, but said
defendant thereafter sought t h e a n n u l m e n t of the decision
for alleged lack of jurisdiction, the same was denied under
the doctrine of estoppel by laches as held in Tijam vs.
Sibonghanoy (L-21450, April 15, 1968). Non-compliance
with P.D. 1508 only r e s u l t s in lack of cause of action or
p r e m a t u r i t y (see Vda. de Borromeo vs. Pogoy, G.R.
No. 63277, Nov. 29, 1983; Peregrina, et al. vs. Panis, et
al, G.R. No. 56011, Oct. 31, 1984). The s i t u a t i o n is
analogous to non-exhaustion of administrative remedies
(Gone, et al vs. District Engineer, et al, supra) or, as
formerly framed, t h e lack of e a r n e s t efforts to compromise
suits between family m e m b e r s (then Sec. lfjj, Rule 16;
Peregrina, et al. vs. Panis, et al, supra; cf Agbayani vs.
Belen, et al, G.R. No. 65629, Nov. 24, 1986).
This objection, not being jurisdictional in n a t u r e , is
deemed waived if not raised in a motion to dismiss (Ebol
vs. Amin, et al, G.R. No. 70237, Mar. 18, 1985; Gonzales
vs. CA, et al, G.R. Nos. 59495-97, June 26, 1987; cf.
Millare vs. Hernando, et al, G.R. No. 55480, June 30,
1987; Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29,
1988).
The complaint may be dismissed where the
complainant, after due notice, wilfully fails to appear on
the d a t e s e t for mediation, conciliation or a r b i t r a t i o n .
Upon a s i m i l a r failure of r e s p o n d e n t to a p p e a r , any
compulsory counterclaim he has made shall be dismissed
and may not be filed in court and complainant shall be
issued a certification for filing his action in the proper
c o u r t , g o v e r n m e n t a g e n c y or office (Alinsugay vs.
Sagampang, et al, G.R. No. 69334, July 28, 1986).
c. T h e fact t h a t t h e s u i t is exclusively b e t w e e n
members of t h e same family is a ground for dismissal if no
e a r n e s t efforts at compromise had been made (Art. 222,
Civil Code; Art. 151, Family Code). This ground is,
285

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 1

t h e r e f o r e , n o t a v a i l a b l e w h e r e a c o m p r o m i s e of t h e
controversy is not p e r m i t t e d by law, as w h e r e it involves
civil s t a t u s , validity of m a r r i a g e or legal separation,
grounds for legal separation, future support, jurisdiction
and future legitime (Art. 2035, Civil Code). The same
r u l e a p p l i e s even if t h e complaint a s k s for s u p p o r t in
a r r e a r s , which is p e r m i t t e d to be compromised, b u t it also
seeks future s u p p o r t (Mendoza vs. CA, et al., L-23102,
April 24, 1967). As to who a r e considered m e m b e r s of a
"family," A r t . 2 1 7 , Civil Code, p r o v i d e d t h a t family
relations shall include those (1) between h u s b a n d and wife;
(2) b e t w e e n p a r e n t a n d child; (3) among o t h e r a s c e n d a n t s
a n d t h e i r d e s c e n d a n t s ; and (4) among b r o t h e r s a n d sisters
(Gayon vs. Gayon, L-28394, Nov. 26, 1970). Art. 150 of
t h e F a m i l y Code a m e n d e d t h e foregoing e n u m e r a t i o n
r e g a r d i n g siblings, to specify " w h e t h e r of t h e full or halfblood."
F a i l u r e to allege in t h e complaint t h a t e a r n e s t efforts
at compromise h a d been made by t h e plaintiff before filing
t h e action is not a ground for a motion to dismiss if one of
t h e p a r t i e s is a s t r a n g e r (Magbaleta vs. Gonong, L-44903,
April 25, 1977) or w h e r e t h e s u i t is b e t w e e n collateral
relatives who a r e not b r o t h e r s or s i s t e r s and, therefore,
not m e m b e r s of t h e s a m e family (Mendez vs. Bionson,
L-32159 Oct. 28, 1977).
2 0 . The doctrine of forum non conveniens is not a
g r o u n d for a m o t i o n t o d i s m i s s u n d e r t h i s R u l e .
Conceptually, t h i s m e a n s t h a t a court, usually in conflictsof-law cases, m a y refuse impositions on its jurisdiction
w h e r e it is not t h e most convenient or available forum
a n d t h e p a r t i e s a r e not precluded from seeking r e m e d i e s
elsewhere (Bank of America, etc. vs. CA, et al., G.R. No.
120135, Mar. 31, 2003).
M o r e o v e r , t h e p r o p r i e t y of
d i s m i s s i n g a case on t h i s p r i n c i p l e r e q u i r e s a f a c t u a l
d e t e r m i n a t i o n , hence it is more properly considered as a
m a t t e r of defense. The t r i a l court, consequently, h a s t h e
discretion to a b s t a i n from a s s u m i n g jurisdiction over the
286

RULE 16

MOTION TO DISMISS

SEC. 1

the case on t h i s ground (Raytheon International, Inc. vs.


Rouzie, Jr., G.R. No. 162894, Feb. 26, 2008).
T h u s , for instance, where t h e defendant's petition for
review in t h e Court of Tax Appeals was dismissed nolle
prosequi a n d t h e Government instituted the tax collection
suit in t h e Regional Trial Court as a consequence thereof,
but d u r i n g t h e pendency of said tax collection suit, the
d e f e n d a n t ' s p e t i t i o n for r e v i e w in t h e C o u r t of Tax
Appeals was reinstated, said defendant can t h e n move for
dismissal of t h e t a x collection suit in the Regional Trial
Court on t h e ground of litis pendentia even if he had
already filed his answer t h e r e i n .
2 1 . S e c t i o n 1 of t h i s a m e n d e d Rule lays down a
b r a n c h of t h e so-called " o m n i b u s motion r u l e " which
provides t h a t defenses or objections not pleaded either in
a motion to dismiss or in t h e answer are deemed waived,
except the objections specified therein which are considered
not waivable.
a. Lack of jurisdiction over t h e subject m a t t e r may
be invoked as a defense at any stage of the action, even if
no such objection was raised in a motion to dismiss or in
the answer, a n d it may be so claimed even after the trial
had commenced (Ker & Co. vs. Court of Tax Appeals, et
al, L-12396, Jan. 31, 1962).
b. It will readily be observed t h a t in said Section 1,
three other exceptions have been expressly added,
namely, t h a t (1) t h e r e is a n o t h e r action pending between
the same p a r t i e s for the same cause (litis pendentia), (2)
the proceeding is barred by a prior judgment (res judicata),
a n d (3) t h e c a s e w a s e x t i n g u i s e d b y t h e s t a t u t e o f
limitations (prescription). These additional exceptions
were not explicitly provided for in the 1964 Rules of Court,
particularly Section 2 of Rule 9 thereof. Notably, it is
clearly stated t h a t any of these additional exceptions may
appear in "the pleadings or the evidence of record."
287

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 3

c. W h e r e any of t h e four defenses a r e p r e s e n t in


t h e case, Section 1 directs t h a t t h e court shall dismiss t h e
claim. If, despite such directive, t h e court shall fail to do
so, t h e logical a n d speedy remedy of t h e defendant is to
move to dismiss t h e claim r e g a r d l e s s of t h e s t a t u s of t h e
initiatory of responsive s t a t u s of t h e pleadings vis-a-vis
e a c h o t h e r . M a n d a m u s to compel such d i s m i s s a l may
t h e r e a f t e r be availed of as t h e successive remedy should
t h e c o u r t b e r e c a l c i t r a n t d e s p i t e t h e fact t h a t s u c h
dismissal is its m a n d a t o r y duty. This is aside from such
a d m i n i s t r a t i v e s a n c t i o n s a s m a y b e w a r r a n t e d b y its
nonfeasance in a m i n i s t e r i a l function.
d. In Matela vs. Chua Tay (L-16796, May 30, 1962),
p e t i t i o n e r challenged t h e propriety of a motion to dismiss
on t h e ground of litis pendentia which w a s p r e s e n t e d after
t h e m o v a n t ' s a n s w e r t o t h e complaint h a d a l r e a d y been
filed, hence t h e d i s m i s s a l of t h e case o b t a i n e d t h e r e b y
should be s e t aside. The S u p r e m e Court d i s r e g a r d e d t h a t
contention since both t h e a n s w e r (which w a s filed earlier)
a n d t h e motion to dismiss "contained t h e defense and/or
ground of p e n d e n c y of a n o t h e r action," a n d all t h e
r e q u i s i t e s of res judicata w e r e p r e s e n t .
With the
aforementioned a m e n d m e n t of Section 1 of this Rule which
now c o n s i d e r s litis pendentia as an e x c e p t i o n to t h e
o m n i b u s m o t i o n r u l e , t h i s c o n t r o v e r s y n e e d n o longer
arise.
e.
Quiaoit vs. Consolacion, et al.
(L-41824, Sept.
30, 1976) explained t h e d i c t u m t h a t a motion to dismiss
may also be allowed for some special reasons on g r o u n d s
o t h e r t h a n lack of cause of action or lack of jurisdiction
over t h e subject-matter, even after t r i a l of t h e case had
a l r e a d y b e g u n b u t evidence c o n s t i t u t i n g a g r o u n d for
dismissal of t h e case is discovered d u r i n g t h a t t r i a l . The
r e a s o n given is t h a t said motion serves to s u p p l e m e n t t h e
a v e r m e n t s of t h e defendant's a n s w e r a n d to adjust t h e
issues to the plaintiffs testimony. This ruling was

288

RULE 16

MOTION TO DISMISS

SEC. 1

reiterated in Ruiz, J r . vs. CA, et al.


Mar. 26, 1993).

(G.R. No. 101566,

f.
T h e a m e n d m e n t of S e c t i o n 1 of t h i s R u l e
providing t h a t t h e exceptions to the omnibus motion rule
m a y be g l e a n e d from t h e e v i d e n c e on record (which
includes t h e case where t r i a l h a s begun) forestalls any
challenge on t h a t score. Also, the liberalization of other
former holdings on belated motions to dismiss t h u s affirm
t h a t procedural rules, as essential tools for the obtention
of justice, should not be literally constricted by petrified
logic in t h e i r application. In any event, where the motion
to dismiss falls outside t h e g e n e r a l rule on allowable
grounds and/or time limits, b u t invokes judicial discretion
due to special reasons, as earlier noted, the better practice
is to move for leave of court therefor so t h a t the situation
may be presented and t h e t r i b u n a l p u t on guard.
22. An action cannot be dismissed on the ground t h a t
the complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars or avail of the
p r o p e r mode of discovery (Galeon vs. Caleon, et al.,
L-30380, Feb. 28, 1973).
2 3 . Courts do not e n t e r t a i n moot questions or issues,
t h a t is, t h o s e w h i c h c e a s e t o p r e s e n t a j u s t i c i a b l e
controversy such t h a t a resolution thereof would be of no
practical use or value and no legal relief is needed or called
for.
However, courts will still decide cases, otherwise moot
and academic, If (1) t h e r e is a grave violation of t h e
Constitution; (2) an exceptional character of the situation
and t h e p a r a m o u n t public i n t e r e s t is involved; (3) t h e
constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar and the
public, and (4) the case is capable of repetition yet evading
review (Lu vs. Lu Ym Sr., et al. G.R. No. 153690, Aug. 26,
2008, which other cases jointly decided).
289

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 2

S e c . 2. Hearing of motion. At t h e h e a r i n g of
the motion, the parties shall submit their arguments
on the questions of law and their evidence on the
q u e s t i o n s o f fact i n v o l v e d e x c e p t t h o s e n o t a v a i l a b l e
at that time. Should the case go to trial, the
evidence presented during the hearing shall
automatically be part of the evidence of the party
p r e s e n t i n g t h e s a m e , (n)
NOTES
1. T h i s new provision of t h e Rule i n t r o d u c e s two
i m p o r t a n t changes, i.e., (1) at t h e h e a r i n g of t h e motion,
t h e p a r t i e s shall s u b m i t all a r g u m e n t s a n d evidence t h e n
a v a i l a b l e , a n d (2) t h e e v i d e n c e p r e s e n t e d s h a l l
automatically c o n s t i t u t e p a r t of t h e evidence at t h e t r i a l
of t h e p a r t y w h o p r e s e n t e d t h e s a m e . It will also be
recalled t h a t in accordance with Rule 15, such motion shall
be in w r i t i n g (Sec. 2) a n d t h a t t h e r e m u s t be a h e a r i n g
t h e r e o n (Sec. 4).
The obvious purpose of t h e s e a m e n d m e n t s is to
avoid u n n e c e s s a r y delay in t h e t r i a l court, a n d to have a
sufficient f r a m e o f r e f e r e n c e s h o u l d t h e t r i a l c o u r t ' s
disposition of t h e motion be questioned in a h i g h e r court.
2. U n d e r t h e former Rule, it w a s held t h a t t h e
absence of a formal h e a r i n g on a motion to dismiss which
w a s g r a n t e d does not constitute reversible e r r o r w h e r e t h e
motion is g r o u n d e d on lack of c a u s e of action a n d t h e
existence or lack of it is d e t e r m i n a b l e by reference to t h e
facts alleged in t h e challenged pleading. The issue raised
in t h e motion h a v i n g been fully discussed t h e r e i n a n d in
t h e opposition thereto, oral a r g u m e n t s on t h e motion would
be an u n n e c e s s a r y ceremony. The i n t e n d m e n t of t h e law
in r e q u i r i n g a h e a r i n g on t h e motion, t h a t is, to avoid
unfair s u r p r i s e s a n d to enable t h e a d v e r s e p a r t y to meet
t h e a r g u m e n t s in t h e motion, have been sufficiently met
u n d e r t h e foregoing c i r c u m s t a n c e s (Castillo, et al. vs. CA,
290

RULE 16

MOTION TO DISMISS

SEC. 3

et al., G.R. No. 52008, Mar. 25, 1988). It is believed t h a t


such ruling may still be favorably considered u n d e r the
new R u l e s u n d e r t h e s a m e c i r c u m s t a n c e s o b t a i n i n g
therein.
S e c . 3.
Resolution of motion. After t h e h e a r i n g ,
the court may dismiss the action or claim, deny the
motion or order the amendment of the pleading.
The court shall not defer the resolution of the
m o t i o n for t h e r e a s o n t h a t t h e g r o u n d r e l i e d u p o n
is not indubitable.
In every case, the resolution shall state clearly
a n d d i s t i n c t l y t h e r e a s o n s t h e r e f o r . (3a)
NOTES
1. A m e n d a t o r y of t h e previous provision on these
aspects in Rule 16, t h e r e are now only t h r e e courses of
action open to the trial court when a motion to dismiss is
presented, i.e, to grant, to deny, or to allow a m e n d m e n t of
the pleading.
The former practice allowed a fourth option, which
was for the court to defer resolution of the motion if the
ground therefor did not a p p e a r to be indubitable. Not
only was t h a t alternative productive of delay or abuse,
but it was often unnecessary and tended to afford a p a t h
of least resistance. Furthermore, in view of the provisions
of the next preceding section requiring presentation of all
available a r g u m e n t s and evidence, there would be no need
for t h e t r i a l court to defer action until t h e trial. The
evidence presented, and such additional evidence as it may
require, would enable it to rule upon the dubitability of
the ground alleged.
T h e s e c o n s i d e r a t i o n s resolve a n d s e t a s i d e t h e
doubtful rule in Antam Consolidated, Inc., et al. vs. CA,
et al. (G.R. No. 61528, July 31, 1986) wherein the court
291

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 3

was allowed to defer resolution of a motion to dismiss since


t h e judge did not have t h e necessary facts to rule upon
t h e capacity to s u e of a foreign corporation; a n d t h e y
reinforce t h e holding in Foster Parents Plan International/Bicol, et al. us. Demetriou, et al. (G.R. No. 74077,
J u l y 7, 1986) t h a t it was gross e r r o r to defer resolution of
the motion w h e r e t h e grounds were lack of jurisdiction or
lack of cause of action since the allegations of t h e complaint
are deemed admitted and the issue can be resolved without
w a i t i n g for t r i a l on t h e m e r i t s .
2. Where a h e a r i n g was held and d o c u m e n t a r y
e v i d e n c e w a s p r e s e n t e d b y t h e d e f e n d a n t , not o n h i s
motion to dismiss b u t a g a i n s t t h e p l a i n t i f f s application
for a w r i t of p r e l i m i n a r y injunction, b u t said evidence
w a s a d m i t t e d b y t h e plaintiff, s u c h e v i d e n c e c a n b e
considered in resolving t h e motion to dismiss (Santiago
us. Pioneer Sauings & Loan Bank, et al., G.R. No. 77502,
Jan. 15, 1988).
3. Adopting previous doctrinal injunctions, such as
t h a t in Continental Bank us. Tiangco (G.R. No. 50480,
Dec. 14, 1979), it is now specifically required by this section
t h a t the resolution on the motion shall clearly and
distinctly s t a t e t h e r e a s o n s therefor. This proscribes t h e
common practice of perfunctorily dismissing t h e motion
"for lack of merit." Such cavalier dispositions can often
pose difficulty a n d m i s u n d e r s t a n d i n g on t h e p a r t of t h e
aggrieved p a r t y in t a k i n g recourse therefrom a n d likewise
o n t h e h i g h e r c o u r t called u p o n t o resolve t h e s a m e ,
usually on c e r t i o r a r i .
4. An o r d e r d e n y i n g a motion to d i s m i s s is
i n t e r l o c u t o r y a n d n o t a p p e a l a b l e (Harrison Foundry
& Machinery, et al.
us. Harrison Foundry
Workers
Association, et al., L-18432, June 19, 1963), b u t an order
g r a n t i n g a m o t i o n to d i s m i s s is final a n d a p p e a l a b l e
(Monares us. CNS Enterprises, 105 Phil. 1333 fUnrep.J).
However, if t h e o r d e r of dismissal is not an adjudication
292

RULE 16

MOTION TO DISMISS

SEC. 3

on t h e merits, as where t h e venue is improperly laid, t h a t


the plaintiff has no legal capacity to sue, litis pendentia,
t h a t t h e complaint s t a t e s no cause of action or t h a t a
c o n d i t i o n p r e c e d e n t for filing t h e s u i t h a s not b e e n
complied with, such dismissal is not a bar to another action
when t h e circumstances change and w a r r a n t the refiling
and prosecution of t h e same.
5. While an order denying a motion to dismiss is
interlocutory, and non-appealable, if the denial was with
grave abuse of discretion or is without or in excess of
jurisdiction, prohibition will lie (see Moreno vs. Macadaeg,
L-17908, April 23, 1968; Espiritu, et al. us. Solidum,
et al., L-27672, July 25, 1973). Certiorari and prohibition
are proper remedies from such order of denial (Alban us.
Madarang, et al, L-32963, Sept. 30, 1971; Van Dorn us.
Romillo, et al, G.R. No. 68470, Oct. 8, 1985; Newsweek,
Inc. us. IAC, et al, G.R. No. 63559, May 30, 1986; PNB
us. Florendo, et al, G.R. No. 62082, Feb. 26, 1992).
6. W h e r e t h e defect is curable by a m e n d m e n t as
where t h e complaint s t a t e s no cause of action, and the
c o u r t u n c o n d i t i o n a l l y r e f u s e s t o allow a m e n d m e n t ,
the same is reversible e r r o r (Macapinlac us. Repide, 43
Phil. 770). However, t h e plaintiff must move for leave to
amend t h e complaint before the dismissal order becomes
final (Constantino us. Reyes, L-16853, June 29, 1963).
Also, where t h e dismissal was merely for failure to allege
e a r n e s t efforts to compromise a suit between members of
the same family (Verzosa vs. Verzosa, L-25609, Nou. 27,
1968), now subsumed under the ground of non-compliance
with a condition precedent, such refusal is improper as
the defect is curable by a m e n d m e n t . This presupposes,
of course, t h a t t h e r e were really such e a r n e s t efforts as
alleged.
7. A case should not necessarily be dismissed, on
motion of the defendant, because the original summons
was wrongfully served or t h e r e was failure of service.
293

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REMEDIAL LAW COMPENDIUM

SEC. 4

The court can instead issue an alias summons for service


on the d e f e n d a n t (Far Corp. vs. Francisco, etc., et al.,
G.R. No. 57218, Dec. 12, 1986).
S e c . 4. Time to plead. If t h e m o t i o n is d e n i e d ,
t h e m o v a n t s h a l l file h i s a n s w e r w i t h i n t h e b a l a n c e
of the period prescribed by Rule 11 to which he
was entitled at the time of serving his motion, but
n o t l e s s t h a n five (5) d a y s i n a n y e v e n t , c o m p u t e d
from his receipt of the notice of the denial. If
t h e p l e a d i n g i s o r d e r e d t o b e a m e n d e d , h e s h a l l file
his answer within the period prescribed by Rule 11
counted from service of the a m e n d e d pleading,
u n l e s s t h e c o u r t p r o v i d e s a l o n g e r p e r i o d . (4a)
NOTES
1. In t h e 1964 Rules of Court, Sec. 4 of t h i s Rule
provided t h a t w h e r e t h e motion to dismiss is denied or
resolution thereof is deferred, the defendant had the
e n t i r e r e g l e m e n t a r y period all over a g a i n w i t h i n which to
file his a n s w e r , reckoned from his receipt of t h e court's
order, u n l e s s o t h e r w i s e provided by said c o u r t . P r i o r
t h e r e t o , t h e rule w a s t h a t t h e filing of a motion to dismiss
only s u s p e n d e d t h e r u n n i n g of t h e r e g l e m e n t a r y period
and, upon its denial, t h e d e f e n d a n t h a d only t h e balance
of t h e r e g l e m e n t a r y period within which to file his a n s w e r .
This a m e n d e d section e n u n c i a t e s a change in policy and
revives in p a r t t h e old practice of g r a n t i n g t h e d e f e n d a n t
only t h e balance of t h e r e g l e m e n t a r y period to which he
was e n t i t l e d at t h e time he filed his motion to dismiss,
counted from his receipt of t h e denial order. The s a m e
rule of g r a n t i n g only t h e balance of t h e period is followed
w h e r e t h e court, i n s t e a d of denying t h e motion to dismiss,
o r d e r s t h e a m e n d m e n t of t h e pleading challenged by his
motion, in which case t h e balance of t h e period to a n s w e r
r u n s from his receipt of t h e a m e n d e d pleading.

294

RULE 16

MOTION TO DISMISS

SEC. 6

However, in order t h a t t h e defendant may at least


not be unduly denied the opportunity to file his responsive
pleading, in t h e first instance he shall be allowed not less
t h a n 5 days to do so where the balance of the reglementary
period is less t h a n t h a t . In t h e second instance, the court
may provide a longer period u n d e r t h e same contingency.
2. When t h e period for filing t h e a n s w e r h a s been
suspended, as by defendant's filing of a motion for a bill
of p a r t i c u l a r s , a motion to dismiss may thereafter be filed
within t h e r e m a i n i n g period to file the answer since t h e
time to file the latter is coterminous with t h a t for the former
(Dumanan, et al. vs. Butuan City Rural Bank, et al.,
L-27675, Dec. 15, 1982).
S e c . 5. Effect of dismissal. S u b j e c t to t h e r i g h t
of appeal, an order granting a motion to dismiss
b a s e d on p a r a g r a p h s (f) (h) a n d (i) of s e c t i o n 1
h e r e o f s h a l l bar t h e r e f i l i n g o f t h e s a m e a c t i o n o r
c l a i m , (n)
NOTES
1. The action cannot be refiled if it was dismissed
on any of these grounds: (a) res judicata, (b) prescription,
(c) e x t i n g u i s h m e n t o f t h e c l a i m o r d e m a n d , a n d
(d) unenforceability under the S t a t u t e of F r a u d s .
2. On the m a t t e r of prescription, if w h a t is referred
to is t h a t t h e cause of action is b a r r e d by t h e s t a t u t e
of l i m i t a t i o n s , t h a t is, t h a t t h e action h a s prescribed
(Arts. 1139 to 1155, Civil Code), t h e motion to dismiss
shall be grounded on par. (f) of Sec. 1. If what is involved
is the fact t h a t the ownership or other real rights claimed
have prescribed, or a case of extinctive prescription is
involved (Arts. 1117 to 1138, Civil Code), then the ground
for the motion to dismiss should properly be based on
par. (h) of Sec. 1 since the plaintiffs claim or demand has
been extinguished.
295

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 6

S e c . 6.
Pleading grounds as affirmative defenses.
I f n o m o t i o n t o d i s m i s s h a s b e e n filed, a n y o f t h e
g r o u n d s for d i s m i s s a l p r o v i d e d for i n t h i s R u l e m a y
be pleaded as an affirmative defense in the a n s w e r
and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss
h a d b e e n filed. (5a)
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of a
c o u n t e r c l a i m p l e a d e d i n t h e a n s w e r , (n)
NOTES
1 . U n d e r t h e p r a c t i c e before 1964, w h e r e t h e
d e f e n d a n t filed a motion to dismiss a n d t h e s a m e w a s
unconditionally denied, t h e g r o u n d s raised by him in said
motion could no longer be pleaded as affirmative defenses
as t h e resolution thereof h a d already been concluded by
t h e d e n i a l of his motion. If he did not file a motion to
dismiss, t h e n he could raise any of t h e g r o u n d s therefor
as affirmative defenses in his a n s w e r and have a
p r e l i m i n a r y h e a r i n g t h e r e o n as if a motion to dismiss h a d
been filed.
D e s p i t e t h e c h a n g e of phraseology u n d e r t h e 1964
Rules, i t a p p e a r s t h a t t h e s a m e procedure applied, a n d
w h e r e t h e d e f e n d a n t did not move to d i s m i s s he could
allege any of t h e g r o u n d s therefor, except improper v e n u e ,
as affirmative defenses in his a n s w e r . On t h e o t h e r h a n d ,
w h e r e a motion to dismiss on t h e g r o u n d s of res judicata
a n d litis pendentia w e r e u n c o n d i t i o n a l l y d e n i e d , s a i d
g r o u n d s could no longer be raised as affirmative defenses
in t h e a n s w e r , as well as t h e o t h e r g r o u n d s to dismiss
available at t h e t i m e t h e motion was filed, except those of
failure to s t a t e a cause of action a n d lack of jurisdiction
which were not deemed waived (Heirs of Juliana Clavano
vs. Genato, et al. L-45837, Oct. 28, 1977).
296

RULE 16

MOTION TO DISMISS

SEC. 6

However, even if t h e defendant had moved to dismiss


but t h e ground relied upon by him was not definitely
resolved by t h e court, i.e., where resolution thereon was
deferred as t h e n allowed, s u c h g r o u n d could still be
averred as an affirmative defense in the answer.
2. U n d e r t h e p r e s e n t amended section, if no motion
to dismiss had been filed, any of the grounds for dismissal,
including improper venue, may be pleaded as affirmative
defenses and preliminarily heard in the discretion of he
court. The provisions of Sec. 4, Rule 4 under the 1964
Rules o f C o u r t , w h i c h r e q u i r e d t h a t i m p r o p e r v e n u e
should be raised in a motion to dismiss otherwise it is
deemed waived, has been eliminated in the present
revision.
Also, t h e ruling in the aforecited Clavano case should
be deemed modified by eliminating therefrom the reference
to t h e ground of failure to s t a t e a cause of action, since
t h a t exception w a s based on t h e former provisions of
Sec. 2 of Rule 9 which, as earlier explained, has been
deleted and r e p h r a s e d in Sec. 1 of the same Rule.
3. The second p a r a g r a p h of t h i s section has now
clarified the effect of t h e dismissal of the complaint upon
a counterclaim duly pleaded in the action.
4. A motion to dismiss is not a responsive pleading,
hence the filing thereof does not preclude the plaintiff from
doing w h a t he can lawfully do before the defendant
files his answer, i.e., amend his complaint (Rodriguez vs.
Fernan, L-15143, Nov. 29, 1961; Soledad vs. Mamangun,
L-17988, May 30, 1963) and admission of such amended
complaint may be compelled by m a n d a m u s (Republic vs.
Ilao, L-16667, Jan. 30, 1962).
5. An order granting a motion to dismiss, rendered
after the death of the plaintiff which was duly reported to
the court in a motion to substitute the deceased by his
heirs but before substitution was ordered, is invalid. The
297

RULE 16

REMEDIAL LAW COMPENDIUM

SEC. 6

right to t h e property involved was vested in t h e heirs upon


t h e d e a t h of t h e i r predecessor without t h e necessity for a
declaration of heirs, hence such order g r a n t i n g t h e motion
to dismiss denies t h e m the right to be substituted as parties
in t h e case without their day in court (Bonilla vs. Barcena,
et al., L-41715, June 18, 1976).
6. U n d e r t h i s a m e n d e d section, any of t h e grounds
for dismissal provided for in this Rule, may be alleged as
affirmative defenses and a p r e l i m i n a r y h e a r i n g may be
h a d t h e r e o n if no motion to dismiss on any of said g r o u n d s
had been filed and resolved. Sec. 5(b) of Rule 6 e n u m e r a t e s
some affirmative defenses such as fraud, illegality a n d
estoppel, a n d j u r i s p r u d e n c e h a s also provided ultra vires
acts a n d u n c o n s t i t u t i o n a l i t y of t h e s t a t u t e involved as
additional affirmative defenses. Since t h e s e defenses and
o t h e r s by way of confession and avoidance a r e not among
t h e g r o u n d s for a motion to dismiss u n d e r Rule 16, while
t h e s a m e may be alleged as affirmative defenses to be
proved as such d u r i n g t h e trial, it would not be proper to
have a preliminary hearing thereon under the
c i r c u m s t a n c e s a n d for t h e p u r p o s e c o n t e m p l a t e d in this
section.
The further a m e n d m e n t emphasizes t h a t the
p r e l i m i n a r y h e a r i n g a u t h o r i z e d t h e r e i n is not m a n d a t o r y ,
since t h e g r a n t thereof may be h a d in the discretion of
the court (246 Corporation, etc. vs. Daway, etc., et al.,
G.R. No. 157216, Nov. 20, 2003).

298

RULE 17
D I S M I S S A L OF A C T I O N S
S e c t i o n 1. Dismissal upon notice by plaintiff. A
complaint may be dismissed by the plaintiff by
filing a notice of d i s m i s s a l at any time before
s e r v i c e of t h e a n s w e r or of a m o t i o n for s u m m a r y
j u d g m e n t . U p o n s u c h n o t i c e b e i n g filed, t h e c o u r t
shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal
is w i t h o u t prejudice, except that a notice operates
a s a n a d j u d i c a t i o n u p o n t h e m e r i t s w h e n filed b y a
plaintiff w h o has once dismissed in a competent
court an action based on or including the same
claim, ( l a )
NOTES
1. The procedure u n d e r the former Sec. 1 of this
Rule has been maintained, but with the clarification t h a t
when the notice of dismissal is filed by the plaintiff, t h e
court shall issue t h e corresponding order confirming the
d i s m i s s a l . T h i s s e t t l e s t h e former m i s u n d e r s t a n d i n g
regarding t h e date when such dismissal became executory since t h e r e was t h e n no such provision for a court
order which, being final in n a t u r e , would r e q u i r e t h e
corresponding e n t r y .
2. U n d e r this section, dismissal is effected not by
motion but by mere notice of dismissal which is a m a t t e r
of r i g h t before t h e d e f e n d a n t has a n s w e r e d or moved
for a s u m m a r y j u d g m e n t . Such d i s m i s s a l is w i t h o u t
prejudice, except: (a) w h e r e the notice of dismissal so
provides, (b) where the plaintiff has previously dismissed
the same case in a court of competent jurisdiction, and
(c) even where t h e notice of dismissal does not provide
t h a t it is with prejudice but it is premised on the fact of
299

RULE 17

REMEDIAL LAW COMPENDIUM

SEC. 2

p a y m e n t by t h e d e f e n d a n t of t h e claim involved (see


Serrano vs. Cabrera, 93 Phil. 774).
The two-dismissal rule requires, however, t h a t both
dismissals a r e g r a n t e d by a court of competent jurisdiction.
3. To be more precise, however, w h a t c a u s e s t h e
loss by a plaintiff of t h e r i g h t to effect dismissal of t h e
action by m e r e notice is not t h e filing of t h e defendant's
a n s w e r w i t h t h e court b u t t h e service on t h e plaintiff of
said a n s w e r or of a motion for s u m m a r y j u d g m e n t . W h e r e
t h e plaintiff filed t h e notice of dismissal of his action in
t h e court after t h e filing of defendant's a n s w e r b u t before
service thereof, t h e plaintiff's notice to t h a t effect ipso
facto b r o u g h t about t h e dismissal of t h e p e n d i n g action
w i t h o u t need of any order from t h e t r i a l court (Go vs.
Cruz, et al., G.R. No. 58986, April 17, 1989).
4. This section is also applicable to special proceedings (Ventura vs. Ventura, 106 Phil. 1165 fUnrep.J). The
former portion thereof r e g a r d i n g dismissal or compromise
of a class suit h a s been t r a n s f e r r e d to Sec. 2 of t h i s Rule
since t h e s a m e a r e effected by motion, a n d not by mere
notice, to t h e court.
5. W h e r e t h e first c o m p l a i n t for foreclosure of a
c h a t t e l m o r t g a g e for n o n - p a y m e n t of c e r t a i n i n s t a l l m e n t s
due t h e r e u n d e r was dismissed with prejudice, at the
instance of the plaintiff u n d e r this section, a n o t h e r
complaint l a t e r filed by him for n o n - p a y m e n t of installm e n t s s u b s e q u e n t t o t h o s e involved i n t h e first case
should not be d i s m i s s e d on t h e g r o u n d of res judicata
since said second case involved different causes of action
(Filinvest Credit Corp. vs. Salas, et al, G.R. No. 63326,
July 31, 1984).
S e c . 2.
Dismissal upon motion of plaintiff.
Except as provided in the p r e c e d i n g section, a
300

RULE 17

DISMISSAL OF ACTIONS

SEC. 2

complaint shall not be dismissed at the p l a i n t i f f s


instance save upon approval of the court and upon
such terms and conditions as the court deems
p r o p e r . If a c o u n t e r c l a i m h a s b e e n p l e a d e d by a
defendant prior to the service upon him of the
p l a i n t i f f s m o t i o n for d i s m i s s a l , t h e d i s m i s s a l s h a l l
be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action
u n l e s s w i t h i n fifteen (16) d a y s from n o t i c e o f t h e
motion he manifests his preference to have his
counterclaim resolved in the same action. Unless
o t h e r w i s e specified in the order, a dismissal under
this paragraph shall be without prejudice. A class
suit shall not be dismissed or compromised without
t h e a p p r o v a l o f t h e c o u r t . (2a)
NOTES
1. Prior to this amendatory Sec. 2, the rule was t h a t
the plaintiff could not move for the dismissal of his complaint if, before the service of his motion therefor upon
the defendant, t h e l a t t e r had filed a counterclaim which
could not r e m a i n pending for independent adjudication
by the trial court, hence the defendant could object to the
dismissal of the action. Applying t h a t provision, it was
held t h a t after the defendant had answered, dismissal can
be effected only by order of the court on proper notice and
h e a r i n g . S u c h d i s m i s s a l c a n n o t be o r d e r e d over t h e
defendant's objection if the counterclaim of the defendant
cannot remain pending for independent adjudication, t h a t
is, a compulsory c o u n t e r c l a i m (see Ynotorio vs. Lira,
L-16677, Nov. 27, 1964; Lim Tanhu, et al. vs. Ramolete,
et al., L-40098, Aug. 29, 1975). The dismissal under this
rule was also without prejudice, except (a) when otherwise stated in the motion to dismiss, or (b) when stated to
be with prejudice in the order of the court (see Vergara,
et al. vs. Ocumen, et al., G.R. No. 53971, June 19, 1982).
301

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SEC. 2

A further qualifying doctrine w a s to t h e effect t h a t


t h e r u l e t h a t a complaint m a y not be dismissed if t h e
counterclaim c a n n o t be independently adjudicated does
not apply to, a n d will not i n u r e to t h e benefit of, a plaintiff
who deliberately p r e v e n t s or delays t h e prosecution of his
own complaint. Especially is this t r u e w h e r e t h e complaint
w a s d i s m i s s e d as a c o n s e q u e n c e of p l a i n t i f f ' s b e i n g
non-suited at the pre-trial as he has thereby virtually
a b a n d o n e d his claims in his complaint (Sta. Maria vs.
CA, et al., L-30602, June 30, 1972).
Although t h e aforesaid doctrines m u s t now yield to
t h e a m e n d m e n t s in Sec. 2, as h e r e u n d e r explained, t h e
r a t i o n a l e in t h e Sta. Maria case t h a t a p l a i n t i f f w h o
delays or p r e v e n t s t h e prosecution of his own complaint
should not benefit therefrom, as by raising any
objection to t h e a p p r o p r i a t e disposition of d e f e n d a n t ' s
counterclaim, is still a sound rule.
2. U n d e r t h i s revised section, w h e r e t h e plaintiff
m o v e s for t h e d i s m i s s a l of h i s c o m p l a i n t to w h i c h a
c o u n t e r c l a i m h a s b e e n interposed, t h e d i s m i s s a l s h a l l be
limited to t h e complaint. Such d i s m i s s a l shall be w i t h o u t
prejudice to t h e r i g h t of t h e d e f e n d a n t to e i t h e r prosecute
his c o u n t e r c l a i m in a s e p a r a t e action or to have t h e s a m e
resolved in t h e s a m e action. Should he opt for t h e first
a l t e r n a t i v e , t h e court should r e n d e r t h e c o r r e s p o n d i n g
o r d e r g r a n t i n g a n d r e s e r v i n g his r i g h t to p r o s e c u t e his
claim in a s e p a r a t e complaint. Should he choose to have
his c o u n t e r c l a i m disposed of in t h e s a m e action w h e r e i n
the complaint had been dismissed, he must manifest
such preference to t h e t r i a l c o u r t w i t h i n 15 d a y s from
notice to h i m of p l a i n t i f f s m o t i o n to d i s m i s s .
These
a l t e r n a t i v e r e m e d i e s of t h e defendant a r e available to him
r e g a r d l e s s of w h e t h e r his counterclaim is compulsory or
permissive. A similar alternative procedure, with the
s a m e u n d e r l y i n g reason therefor, is adopted in Sec. 6, Rule
16 a n d Sec. 3 of t h i s R u l e , w h e r e i n t h e c o m p l a i n t is

302

RULE 17

DISMISSAL OF ACTIONS

SEC. 3

dismissed on motion of t h e defendant or, in t h e l a t t e r


instance, also by the court motu proprio.
3. Sees. 1 and 2 of this Rule refer to the dismissal of
the entire case at the instance of the plaintiff, provided
that, u n d e r Sec. 1, t h e r e has been no service of an answer
of a motion for s u m m a r y judgment; and, under Sec. 2, the
d e f e n d a n t h a s not filed a counterclaim a n d t h e court
d e e m s t h e d i s m i s s a l p r o p e r . A b s e n t such c o n t i n g e n t
considerations, t h e plaintiff has t h e v i r t u a l freedom to
desist from further prosecuting any defendant by causing
the dismissal of the complaint.
T h i s i s t o b e d i s t i n g u i s h e d from t h e s i t u a t i o n
contemplated in Sec. 11, Rule 3 which allows parties to be
dropped or added by order of t h e court, on motion or motu
proprio at any stage of t h e action and on such t e r m s as
are just. This refers to the maintenance of the case against
all parties, except t h a t one or more defendants may be
excluded. It does not, however, comprehend whimsical
or i r r a t i o n a l dropping of p a r t i e s but c o n t e m p l a t e s t h e
situation w h e r e t h e r e h a s been an erroneous inclusion
or misjoinder of p a r t i e s . It presupposes t h a t the original
inclusion of a defendant was made in the honest conviction
that it was proper but the subsequent dropping is
requested because it has t u r n e d out to be incorrect. It
does not mean t h a t a plaintiff is free to join or implead
a n y b o d y as a d e f e n d a n t in a c o m p l a i n t o n l y to
unceremoniously drop him later at the plaintiffs pleasure;
hence, t h e r e q u i r e m e n t t h a t the dropping be "on such
t e r m s as are just" - j u s t to all the other parties (Lim
Tanhu, et al. vs. Ramolete, et al, supra).
S e c . 3. Dismissal due to fault of plaintiff. If,
for n o j u s t i f i a b l e c a u s e , t h e plaintiff fails t o a p p e a r
on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action
for a n u n r e a s o n a b l e l e n g t h o f t i m e , o r t o c o m p l y
with these Rules or any order of the court, the
303

RULE 17

REMEDIAL LAW COMPENDIUM

SEC. 3

complaint may be dismissed upon motion of the


defendant or upon the court's o w n motion, w i t h o u t
prejudice to the right of the defendant to prosecute
his c o u n t e r c l a i m in the same or in a separate
action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
d e c l a r e d b y t h e c o u r t . (3a)
NOTES
1. Two i m p o r t a n t c h a n g e s have been introduced by
t h i s section. The dismissal of t h e case for failure of t h e
plaintiff to a p p e a r at t h e trial, to be valid, now r e q u i r e s
t h a t (1) his n o n - a p p e a r a n c e is w i t h o u t justifiable cause,
a n d (2) such prejudicious absence is limited to t h e d a t e
or d a t e s w h e n t h e p r e s e n t a t i o n of his evidence in chief on
t h e complaint w a s scheduled or expected. The provision
in t h e former section r e f e r r i n g to p l a i n t i f f s failure to
a p p e a r "at t h e t i m e of t h e trial" could r e s u l t in unfair if
not a b s u r d r e s u l t s , considering t h e l e n g t h of t h e period
of t h e t r i a l a n d t h e different s t a g e s thereof w h e r e i n t h e
p r e s e n c e of t h e d e f e n d a n t a n d t h e o t h e r p a r t i e s a r e not
e v e n r e q u i r e d . S i n c e t h e p l a i n t i f f s p r e s e n c e i s now
r e q u i r e d only d u r i n g t h e p r e s e n t a t i o n of his evidence in
chief, his absence d u r i n g t h e p r e s e n t a t i o n of t h e evidence
of the defendant or the other parties, or even at the
r e b u t t a l or s u b s e q u e n t s t a g e s of t h e trial, is not a ground
for dismissal.
2. The second s u b s t a n t i a l a m e n d m e n t to this
section is w i t h respect to t h e disposition of t h e defendant's
counterclaim in the event the plaintiff's complaint is
dismissed. As a l r e a d y observed, he is h e r e g r a n t e d t h e
choice to p r o s e c u t e t h a t counterclaim in e i t h e r t h e s a m e
or a s e p a r a t e action, j u s t like t h e g r a n t of t h a t r e m e d y in
Sec. 6 of Rule 16. It may be noted t h a t in t h e p r e s e n t
i n s t a n c e , as well as u n d e r t h e a f o r e s t a t e d S e c . 6 of
Rule 16, t h e d e f e n d a n t is not r e q u i r e d to manifest his
304

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DISMISSAL OF ACTIONS

SEC. 3

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


The reason is t h a t the motions to dismiss contemplated
in Sec. 6, Rule 16 a n d in t h i s section a r e filed by t h e
defendant who perforce has already deliberated upon the
course of action he intends to take on his counterclaim
and which he may even manifest right in his motion to
dismiss the complaint. The dismissal in Sec. 2 of this Rule
is at the instance of the plaintiff, hence the defendant is
granted the time and also t h e duty to t h u s manifest his
preference within 15 days from notice, after an opportunity
to study the situation.
3. With t h e aforestated a m e n d m e n t s in Sees. 2 and
3 l a y i n g d o w n specific r u l e s on t h e d i s p o s i t i o n of
c o u n t e r c l a i m s involved in t h e d i s m i s s e d a c t i o n s , t h e
c o n t r o v e r s i a l doctrine in BA Finance Corporation vs.
Co, et al. (G.R. No. 105751, J u n e 30, 1993) h a s been
abandoned, together with t h e a p p a r e n t confusion on the
proper application of said Sees. 2 and 3. Said sections
were distinguished and discussed in the author's separate
opinion in t h a t case, even before they were clarified by
the p r e s e n t a m e n d m e n t s , as follows:
"Turning back to Rule 17, it is readily a p p a r e n t
t h a t Sections 2 a n d 3 t h e r e o f e n v i s a g e different
factual a n d adjective situations. The dismissal of
the complaint u n d e r Section 2 is at the instance of
plaintiff, for w h a t e v e r reason he is minded to move
for such dismissal, and, as a matter of procedure, is
without prejudice unless otherwise stated in the order
of the court or, for t h a t matter, in plaintiffs motion
to dismiss his own complaint. By reason thereof, to
curb any dubious or frivolous strategy of plaintiff for
his benefit or to obviate possible prejudice to
defendant, the former may not dismiss his complaint
over t h e d e f e n d a n t ' s objection if t h e l a t t e r h a s a
compulsory c o u n t e r c l a i m since said c o u n t e r c l a i m
would necessarily be divested of juridical basis and
d e f e n d a n t would be deprived of possible recovery
305

RULE 17

REMEDIAL LAW COMPENDIUM

SEC. 3

t h e r e o n in t h a t s a m e judicial proceeding.
"Section 3, on t h e o t h e r h a n d , c o n t e m p l a t e s a
dismissal not procured by plaintiff, albeit justified by
causes imputable to him a n d which, in t h e p r e s e n t
case, was petitioner's failure to a p p e a r at t h e pre-trial.
This situation is also covered by Section 3, as extended
by judicial interpretation, and is ordered upon
motion of d e f e n d a n t or motu proprio by t h e court.
H e r e , t h e issue of w h e t h e r d e f e n d a n t h a s a p e n d i n g
c o u n t e r c l a i m , p e r m i s s i v e or c o m p u l s o r y , is not of
determinative significance. The dismissal of plaintiffs
complaint is evidently a confirmation of t h e failure of
evidence to prove his cause of action outlined t h e r e i n ,
h e n c e t h e d i s m i s s a l is c o n s i d e r e d , as a matter of
evidence, an adjudication on t h e m e r i t s . This does
not, however, m e a n t h a t t h e r e is likewise such absence of evidence to prove defendant's c o u n t e r c l a i m
a l t h o u g h t h e s a m e a r i s e s out of t h e s u b j e c t - m a t t e r of
t h e complaint which w a s merely t e r m i n a t e d for lack
of proof. To hold o t h e r w i s e w o u l d n o t only w o r k
injustice to d e f e n d a n t but would be r e a d i n g a
further provision into Section 3 and wresting a
m e a n i n g therefrom a l t h o u g h n e i t h e r exists even by
m e r e implication. T h u s u n d e r s t o o d , t h e complaint
can accordingly be dismissed, b u t relief can nevert h e l e s s be g r a n t e d as a m a t t e r of course to d e f e n d a n t
on his counterclaim as alleged a n d proved, w i t h or
w i t h o u t any r e s e r v a t i o n therefor on his p a r t , u n l e s s
from his conduct, e x p r e s s or implied, he h a s virtually
c o n s e n t e d to t h e concomitant d i s m i s s a l of his counterclaim."
4. It has been held t h a t the circumstances set
out in t h i s section a r e t h e only instances w h e r e i n t h e court
m a y dismiss a case on its own motion (Malig vs. Bush,
L-22761, May 31, 1969). N e v e r t h e l e s s , it should also be
recalled t h a t if t h e court finds t h a t it h a s no jurisdiction

306

RULE 17

DISMISSAL OF ACTIONS

SEC. 3

over t h e subject-matter of t h e suit, t h a t t h e r e is a n o t h e r


action p e n d i n g between t h e same p a r t i e s for t h e same
cause, or t h a t t h e action is barred by a prior j u d g m e n t or
by s t a t u t e of limitations, t h e court shall dismiss t h e case
sua sponte (Sec. 1, Rule 9).
5. U n l e s s otherwise provided in t h e order of t h e
court, a dismissal u n d e r this section is with prejudice.
Thus, w h e n t h e dismissal does not contain any condition
at all, it h a s t h e effect of an adjudication on t h e merits as
it is understood to be with prejudice (Guanzon vs. Mapa,
L-19249, Feb. 28, 1963; cf. Insular Veneer, Inc. vs. Plan,
L-40155, Sept. 10, 1976).
6. Failure to comply with a court order is ground for
d i s m i s s a l of t h e c a s e (Aranico-Robino vs. Aquino,
L-46641, Oct. 28, 1977), s u c h as w h e r e t h e plaintiff
failed to a m e n d his p l e a d i n g as ordered by t h e court
(Dizon vs. Garcia, 110 Phil. 186), unless the order is null
and void as w h e r e , upon t h e d e a t h of t h e d e f e n d a n t ,
the court ordered t h e plaintiff to amend his complaint
contrary to Sec. 17 (now, Sec. 16), Rule 3 which directs
t h a t in t h a t case t h e heirs of the defendant be merely
s u b s t i t u t e d in lieu of t h e deceased (Gojo vs. Golaya,
L-26768, Oct. 30, 1970). Also, the dismissal of the case
for failure of plaintiffs counsel to manifest w h e t h e r he
was availing of or dispensing with modes of discovery, as
required by a clerk in the office of the judge, is null and
void as no such notice is authorized by the Rules (Koh vs.
IAC, et al., G.R. No. 71388, Sept. 23, 1986).
7. Unjustifiable inaction on the p a r t of plaintiff to
have t h e case s e t for t r i a l is ground for dismissal for
f a i l u r e to p r o s e c u t e (Ventura vs. Bayan, L-12960,
Jan. 31, 1962; Insurance Company of North America vs.
Republic, L-26794, Nov. 15, 1967). The "unreasonable
length of time" in failure to prosecute is addressed to the
sound discretion of the trial court (Olilang vs. Nocon, et
al., L-31072, July 22, 1971).
T h e s e r u l e s a p p l y to
307

RULE 17

REMEDIAL LAW COMPENDIUM

SEC. 3

pre-trials and appeals to the former Court of First


I n s t a n c e (Racimo vs. Diho, L-27804, Feb. 27, 1976) and
t h e c a s e m a y b e d i s m i s s e d for a p p e l l a n t ' s f a i l u r e t o
prosecute his a p p e a l for an u n r e a s o n a b l e length of time
(Republic vs. Guarin, et al, L-26367, Jan. 31, 1978). In
a case appealed to t h e t h e n Court of F i r s t I n s t a n c e , t h e
a p p e l l a n t ( w h e t h e r plaintiff or defendant) s t a n d s in t h e
s a m e position as t h e plaintiff in a case originally filed in
said court, hence t h e provisions of Sec. 3, Rule 17 also
apply to said a p p e l l a n t (Capitol Rural Bank of Quezon
City, Inc. vs. Meridian Assurance Corp., G.R. No. 54416,
Oct. 17, 1980).
8. It is p l a i n t i f f s failure to a p p e a r at t h e trial, and
not the absence of his lawyer, which w a r r a n t s
d i s m i s s a l (Dayo, et al. vs. Dayo, et al, 95 Phil. 703;
Marahay vs. Melicor, etc., et al, L-44980, Feb. 6, 1990).
9. A motion for t h e reconsideration of an order
dismissing t h e case for failure to p r o s e c u t e need not be
a c c o m p a n i e d by a f f i d a v i t s of m e r i t s (Gapoy vs. Adil,
et al, L-46182, Feb. 28, 1978).
10. D i s m i s s a l u n d e r S e e s . 1, 2 a n d 3 of t h i s
Rule, u n l e s s otherwise ordered, is an adjudication on t h e
m e r i t s except, of course, dismissal for lack of jurisdiction
which is always w i t h o u t prejudice (Rivera vs. Luciano,
L-20944, Aug. 14, 1965, a n d cases t h e r e i n cited).
1 1 . The principle t h a t t h e dismissal of t h e complaint
c a r r i e s w i t h it t h e dismissal of t h e counterclaim applies to
instances w h e r e t h e court has no jurisdiction over t h e main
case
(Metals Engineering Resources Corp. vs. CA, et al,
G.R. No. 95631, Oct. 28, 1991). O t h e r w i s e , a c o u n t e r claim may not be dismissed if d e f e n d a n t objects, unless it
can be i n d e p e n d e n t l y considered by t h e court. W h e r e no
objection was m a d e , t h e dismissal of t h e counterclaim was
valid. At any r a t e , if t h e dismissal of such c o u n t e r c l a i m is
w i t h o u t prejudice, it m a y be refiled as a s e p a r a t e action
308

RULE 17

DISMISSAL OF ACTIONS

SEC. 4

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


Ltd., et al. vs. CA, et al., G.R. No. 123292, April 20, 1998).
12. W h e r e c o u n s e l for t h e plaintiff h a d a d d u c e d
e v i d e n c e for h i s c l i e n t , h i s f a i l u r e t o a p p e a r a t a
s u b s e q u e n t h e a r i n g cannot be considered as failure to
prosecute but only a waiver of the right to cross-examine
t h e w i t n e s s e s for t h e d e f e n d a n t a n d to object to t h e
a d m i s s i b i l i t y of e v i d e n c e for t h e l a t t e r (Jalover vs.
Ytoriaga, L-35989, Oct. 28, 1977).
13. T h e p r o v i s i o n s of Sec. 3 of t h i s Rule do not
apply to criminal cases (People vs. Bellosillo, L-18512,
Dec. 27, 1963).
14. For a critique of t h e controversial antecedents of
Sees. 2 and 3 of the Rule before their a m e n d m e n t in 1997
and t h e c u r r e n t perceptions consequent to such amendments, see Tinga vs. Heirs of German Santiago, etc. (G.R.
No. 170354, J u n e 30, 2006).
S e c . 4.
Dismissal of counterclaim,
cross-claim,
or third-party complaint. T h e p r o v i s i o n s of t h i s
Rule shall apply to the dismissal of any counterclaim, cross-claim, or t h i r d - p a r t y complaint. A
voluntary dismissal by the claimant by notice as in
s e c t i o n 1 of t h i s R u l e , shall be m a d e before a
r e s p o n s i v e p l e a d i n g o r a m o t i o n for s u m m a r y
j u d g m e n t is served or, if t h e r e is none, before t h e
i n t r o d u c t i o n o f e v i d e n c e a t t h e t r i a l o r h e a r i n g . (4a)

309

RULE 18
PRE-TRIAL
S e c t i o n 1. When conducted. A f t e r t h e l a s t
p l e a d i n g h a s been served and filed, it shall be the
d u t y of t h e p l a i n t i f f to p r o m p t l y m o v e ex parte t h a t
t h e c a s e b e s e t for p r e - t r i a l . (5a, R20)
NOTES
1. To o b v i a t e t h e conflicting v i e w s a n d d e c i s i o n s
u n d e r t h e former Rule, Sec. 1 now imposes upon t h e plaintiff t h e d u t y to p r o m p t l y move ex parte t h a t t h e case be set
for pre-trial, a n d t h i s he m u s t do upon t h e service and
filing of t h e last p l e a d i n g required in t h e case by t h e Rules
or, in a p p r o p r i a t e c i r c u m s t a n c e s , by t h e court itself. This
clarifies a n d c h a n g e s t h e p r o c e d u r e p r e s c r i b e d i n t h e
former Sec. 5 of Rule 20 which imposed t h a t d u t y on t h e
clerk of court "upon t h e submission" of t h e last pleading.
The t r a n s f e r of responsibility to t h e plaintiff himself, as
h a s b e e n followed in o t h e r provisions of t h e revised Rules,
is b a s e d on t h e policy t h a t whosoever is t h e p r o p o n e n t of
t h e p a r t i c u l a r s t a g e of t h e proceeding should himself init i a t e t h e c o r r e s p o n d i n g s t e p s t o have judicial action t a k e n
t h e r e o n since he is p r e s u m e d to be t h e one i n t e r e s t e d in
t h e speedy disposition thereof.
2. P r e - t r i a l u n d e r t h e former Rules w a s r e q u i r e d only
i n C o u r t s o f F i r s t I n s t a n c e (now, t h e R e g i o n a l T r i a l
Courts) a n d not in inferior courts, b u t t h e l a t t e r could conduct p r e - t r i a l if they so desired. However, P a r . 9 of t h e
I n t e r i m Rules r e q u i r e d t h e inferior c o u r t s to observe t h e
s a m e p r o c e d u r e a s t h a t followed i n t h e R e g i o n a l T r i a l
C o u r t s a n d Rule 5 now provides for t h a t uniform proced u r e , albeit w i t h qualifications.

310

RULE 18

PRE-TRIAL

SEC. 2

3. The pre-trial and t r i a l on the merits of t h e case


must be held on s e p a r a t e dates (Heirs of Jose Fuentes,
et al. vs. Macandog, etc., et al, L-45445, June 16, 1978).
4. A p r e - t r i a l cannot validly be held u n t i l t h e last
pleading h a s been filed, which last pleading may be the
p l a i n t i f f s reply (Pioneer Insurance & Surety Corp., et al.
vs. Hontanosas, et al, L-35951, Aug. 31, 1977), except
where t h e period to file t h e last pleading has lapsed. The
pre-trial may be properly scheduled even if the plaintiff
had not yet filed his answer to the defendant's compulsory counterclaim since no answer is required to be filed
t h e r e t o (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983; see Koh vs. IAC, G.R. No. 71388, Sept. 23, 1986).
S e c . 2. Nature and purpose. T h e p r e - t r i a l is
mandatory. The court shall consider:
(a) T h e p o s s i b i l i t y o f a n a m i c a b l e s e t t l e m e n t o r
of a s u b m i s s i o n to a l t e r n a t i v e m o d e s of d i s p u t e r e s o lution;
(b) T h e s i m p l i c a t i o n o f t h e i s s u e s ;
(c) T h e n e c e s s i t y o r d e s i r a b i l i t y o f a m e n d m e n t s
to the pleadings;
(d) T h e p o s s i b i l i t y o f o b t a i n i n g s t i p u l a t i o n s o r
admissions of facts and of documents to avoid unn e c e s s a r y proof;
(e) T h e l i m i t a t i o n o f t h e n u m b e r o f w i t n e s s e s ;
(0 T h e a d v i s a b i l i t y of a p r e l i m i n a r y r e f e r e n c e
of i s s u e s to a c o m m i s s i o n e r ;
(g) T h e p r o p r i e t y o f r e n d e r i n g j u d g m e n t o n t h e
pleadings, or summary judgment, or of dismissing
t h e a c t i o n s h o u l d a v a l i d g r o u n d t h e r e f o r be f o u n d
to exist;
(h) T h e a d v i s a b i l i t y o r n e c e s s i t y o f s u s p e n d i n g
the proceedings; and
311

RULE 18

REMEDIAL LAW COMPENDIUM

SEC. 3

(i) S u c h o t h e r m a t t e r s a s m a y a i d i n t h e p r o m p t
d i s p o s i t i o n o f t h e a c t i o n , ( l a , R20)
NOTES
1. The purposes of a pre-trial u n d e r t h e old Rule have
been reproduced w i t h two s u b s t a n t i a l a m e n d m e n t s , viz.:
(a) t h e court shall consider submission to alternative modes
of dispute resolution including conciliation a n d mediation,
and not only a r b i t r a t i o n ; a n d (b) it shall also consider t h e
advisability of j u d g m e n t on the pleadings, s u m m a r y
j u d g m e n t or dismissal of t h e action on t h e b a s e s of t h e
proceedings at t h e p r e - t r i a l conference.
2 . W i t h r e g a r d t o s u b m i s s i o n t o a r b i t r a t i o n , see
R.A. 876 a n d A r t s . 2028 to 2041 of t h e Civil Code on
compromises and arbitrations. For recent legislation
p r o v i d i n g for a b r o a d e r scope of a l t e r n a t i v e m o d e s of
dispute resolution, see R.A. 9285 which institutionalized
t h e use of an a l t e r n a t i v e d i s p u t e resolution s y s t e m a n d
e s t a b l i s h e d t h e Office for A l t e r n a t i v e D i s p u t e Resolution
(Appendix
DD).
3. The findings of fact of a t r i a l court c o n s e q u e n t to
a p r e - t r i a l conference a r e findings which a r e b a s e d on
evidence a n d can accordingly s u p p o r t a decision or an
order (Libudan vs. Gil, L-21163, May 17, 1972).
S e c . 3.
Notice of pre-trial. T h e n o t i c e of
pre-trial shall be served on counsel, or on the party
who has no counsel. The counsel served with such
notice is charged with the duty of notifying the
p a r t y r e p r e s e n t e d b y h i m . (n)
NOTE
1. U n d e r t h e former procedure, t h e S u p r e m e Court
held t h a t a notice of p r e - t r i a l m u s t be served on t h e p a r t y
affected separately from his counsel (Heirs of Jose Fuentes,
312

RULE 18

PRE-TRIAL

SEC. 4

et al. vs. Macandog, etc., et al. supra), and the same may
be served directly to him or t h r o u g h his counsel (Lim,
et al. vs. Animas, etc., et al., L-39094, April 18, 1975),
otherwise t h e proceedings will be null and void (Sagarino
vs. Pelayo, L-27927, June 20, 1977; Patalinjug vs. Peralta,
et al., L-43324, May 5, 1979). It was the duty of counsel
upon whom such notice is served to see to it t h a t his client
receives such notice and a t t e n d s the pre-trial, otherwise
he will be liable for grave a d m i n i s t r a t i v e disciplinary
action (Taroma, et al. vs. Sayo, et al., L-37296, Oct. 30,
1975).
The p r o c e d u r e h a s been simplified in t h i s revised
section in t h e sense t h a t t h e notice of pre-trial shall be
served on counsel, and service shall be made on the party
only if he h a s no counsel. However, the duty of counsel
served with such notice to duly notify his client thereof
r e m a i n s substantially the same.
S e c . 4. Appearance of parties. It s h a l l be t h e
duty of the parties and their counsel to appear at
t h e p r e - t r i a l . T h e n o n - a p p e a r a n c e of a p a r t y m a y
be e x c u s e d o n l y if a v a l i d c a u s e is s h o w n t h e r e f o r
or if a r e p r e s e n t a t i v e s h a l l a p p e a r in h i s b e h a l f fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations
or a d m i s s i o n s of f a c t s a n d of d o c u m e n t s , (n)
NOTES
1. T h e specificity i n t r o d u c e d by t h i s new section
underscores the necessity for the personal appearance of
t h e p a r t i e s at t h e p r e - t r i a l conference in view of t h e
purposes thereof. This provision is based on the doctrines
of the Supreme Court which held t h a t the purpose of the
revised Rules is to compel the parties to appear personally
before the court to reach, if possible, a compromise. Where
313

RULE 18

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SEC. 5

the counsel for the plaintiff asserted that he had been given
a u t h o r i t y by his client to compromise but the court w a s
not satisfied t h a t s a i d a u t h o r i t y e x i s t e d , t h e c o u r t i s
a u t h o r i z e d to dismiss t h e case for n o n - a p p e a r a n c e of t h e
plaintiff (Home Insurance Co. vs. U.S. Lines Co., et al.,
L-25593, Nov. 15, 1967).
A s p e c i a l a u t h o r i t y for an
a t t o r n e y to compromise is required u n d e r Sec. 23,
Rule 138. U n d e r A r t . 1878(c) of t h e Civil Code, a special
power of a t t o r n e y is required (see Servicewide Specialists,
Inc. vs. Sheriff of Manila, et al., G.R. No.
74586,
Oct. 17, 1986). However, it h a s also b e e n held t h a t t h e
a u t h o r i t y need not be in w r i t i n g a n d m a y be e s t a b l i s h e d
by c o m p e t e n t evidence or s u b s e q u e n t l y ratified by t h e
p a r t y c o n c e r n e d (Lim Pin vs. Tan, et al., L-47740,
July 20, 1982).
If t h e p a r t y is a c o r p o r a t i o n , s u c h
a u t h o r i t y m u s t b e m a d e w i t h a n a p p r o p r i a t e resolution
of its board of directors (Republic vs. Plan, et al., G.R.
No. 56962, Aug. 21, 1982).
2. It m u s t f u r t h e r be noted t h a t t h e special a u t h o r i t y
should confer on t h e p a r t y ' s r e p r e s e n t a t i v e not only t h e
power to e n t e r into a compromise, as it w a s u n d e r t h e
former provision, b u t also to s u b m i t to a l t e r n a t i v e modes
of d i s p u t e s e t t l e m e n t , a n d to e n t e r into s t i p u l a t i o n s or
a d m i s s i o n s o f f a c t s a n d d o c u m e n t s . Also, t h e m e r e
p r e s e n t a t i o n of s u c h w r i t t e n a u t h o r i t y is not sufficient,
b u t m u s t be c o m p l e m e n t e d by a showing of valid c a u s e
for t h e n o n - a p p e a r a n c e of t h e p a r t y himself.
3 . W h e r e nobody a p p e a r e d a t t h e p r e - t r i a l except t h e
counsel for t h e plaintiff b u t said counsel h a d no special
a u t h o r i t y t o r e p r e s e n t t h e plaintiff t h e r e i n , t h e plaintiff
may properly be declared non-suited. T h e plaintiff may
be so declared non-suited a n d t h e case dismissed w i t h o u t
motion by t h e d e f e n d a n t (Sec. 3, Rule 17).
S e c . 5.
Effect of failure to appear. T h e f a i l u r e of
the plaintiff to appear w h e n so required pursuant
314

RULE 18

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SEC. 5

t o t h e n e x t p r e c e d i n g s e c t i o n s h a l l b e c a u s e for d i s missal of the action. The dismissal shall be with


prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall
be cause to allow the plaintiff to present his
e v i d e n c e ex parte a n d t h e c o u r t to r e n d e r j u d g m e n t
o n t h e b a s i s thereof. (2a, R20)
NOTES
1. This is a s u b s t a n t i a l reproduction of Sec. 2 of the
former Rule 20 w i t h t h e c h a n g e t h a t , i n s t e a d of t h e
defendant being declared "as in default" by reason of his
n o n - a p p e a r a n c e , t h i s section now spells out t h a t t h e
procedure will be to allow t h e ex parte p r e s e n t a t i o n of
plaintiffs evidence and t h e rendition of judgment on the
basis thereof. While actually the procedure r e m a i n s the
s a m e , t h e p u r p o s e is one of s e m a n t i c a l p r o p r i e t y or
terminological accuracy as there were criticisms on the use
of the word "default" in t h e former provision since t h a t
t e r m is identified w i t h t h e failure to file a r e q u i r e d
answer, not non-appearance in court.
2. The t r i a l court has discretion to declare a party
non-suited
(American Insurance
Co.
vs.
Republic,
L 25478, Oct. 23, 1967) and, unless otherwise provided,
such dismissal has t h e effect of an adjudication on the
m e r i t s (Geralde, et al. vs. Sabido, et al., L-35450,
Aug. 19, 1982). Such exercise of discretion will not be
interfered with by the appellate courts, absent a showing
of g r a v e a b u s e thereof. W h e r e , as in one case, both
counsel and plaintiff did not appear at the pre-trial, an
order of non-suit was proper (Arcuino, et al. vs. Aparis, et
al., L-23424, Jan. 31, 1968).
3. Where the defendant is declared in default for his
failure to a p p e a r at the pre-trial, his remedy is to file a
motion for reconsideration without need for affidavits of
merits regarding the fraud, accident, mistake or excusable
315

RULE 18

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SEC. 6

negligence (Lucero vs. Dacayo, L-23718, May 13, 1968),


obviously because t h e defenses of t h e defendant a r e set
out in his answer. If denied with grave abuse of discretion,
certiorari is the remedy as such order of default is
interlocutory. The r e m e d y of t h e plaintiff who is nonsuited, on t h e o t h e r h a n d , is to a p p e a l from t h e order of
dismissal, t h e s a m e being a final order. If h a s also been
held t h a t said motion of the plaintiff need not be
a c c o m p a n i e d b y a f f i d a v i t s o f m e r i t s s i n c e t h e sufficiency of t h e c a u s e of action can be d e t e r m i n e d from
t h e allegations in t h e complaint (Gapoy vs. Adil, et al.,
L-46182, Feb. 28, 1978).
4. Where t h e defendant was p r e s e n t at t h e pre-trial,
t h e c o u r t h a s no a u t h o r i t y to t h e r e a f t e r call a second
p r e - t r i a l a n d declare d e f e n d a n t in default for his absence
therein
(Pioneer Insurance & Surety Corp., et al. vs.
Hontanosas, et al., supra; cf. Jaranilla, et al. vs. Adil,
et al, L-44884, Feb. 28, 1979). For t h a t m a t t e r , w h e r e a
p r e - t r i a l h a s a l r e a d y been held, t h e fact t h a t a n a m e n d e d
complaint w a s l a t e r filed, w i t h leave of court, does not
necessitate a n o t h e r pre-trial (Insurance Company of North
America vs. Republic, et al, L-26794, Nov. 15, 1967).
5. T h e d i s m i s s a l of t h e case by t h e c o u r t d u e to
n o n - a p p e a r a n c e of t h e plaintiff a n d his c o u n s e l at t h e
pre-trial, b u t w i t h o u t p r o p e r notice of said p r e - t r i a l served
on them, is violative of due process and the dismissal should
be s e t a s i d e (Loquias vs. Rodriguez, et al, L-38388,
July 31, 1975). W h e r e p e t i t i o n e r ' s counsel w a s not served
w i t h a s e p a r a t e notice of p r e - t r i a l , a l t h o u g h his client
acknowledged receipt of a copy thereof in its behalf a n d of
said counsel, said service is insufficient a n d t h e o r d e r of
default a n d t h e ex parte proceedings before t h e commissioner a r e null a n d void (People's Realty Brokerage Corp.
vs. Lustre, et al, L-41495, Oct. 20, 1978). This doctrine
would s t i l l hold t r u e a s i t does not conflict w i t h t h e
a m e n d e d Sec. 3 of t h i s Rule.

316

RULE 18

PRE-TRIAL

SECS. 6, 7

S e c . 6. Pre-trial brief. T h e p a r t i e s shall file w i t h


t h e c o u r t a n d s e r v e o n t h e a d v e r s e party, i n s u c h
manner as shall insure their receipt thereof at least
t h r e e (3) d a y s b e f o r e t h e d a t e o f t h e pre-trial, t h e i r
respective pre-trial briefs which shall contain,
among others:
(a) A s t a t e m e n t o f t h e i r w i l l i n g n e s s t o e n t e r
into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms
thereof;
(b) A s u m m a r y of a d m i t t e d facts a n d p r o p o s e d
s t i p u l a t i o n o f facts;
(c) T h e i s s u e s t o b e t r i e d o r r e s o l v e d ;
(d) T h e d o c u m e n t s o r e x h i b i t s t o b e p r e s e n t e d ,
s t a t i n g t h e p u r p o s e thereof;
(e) A m a n i f e s t a t i o n of t h e i r h a v i n g a v a i l e d or
their intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) T h e n u m b e r a n d n a m e s o f t h e w i t n e s s e s ,
and the substance of their respective testimonies.
F a i l u r e t o file t h e pre-trial b r i e f s h a l l h a v e t h e
s a m e e f f e c t a s f a i l u r e t o a p p e a r a t t h e pre-trial, (n)
NOTE
1.
This section makes it the mandatory duty of the
parties to seasonably file their pre-trial briefs under the
conditions and with the sanctions provided therein. The
case of Dimayacyac, et al. vs. CA, et al. (G.R. No. 50907,
Sept. 27, 1979) which excused the non-filing of the pretrial brief on the ground t h a t the former Rule did not then
require the same is accordingly abrogated.
S e c . 7. Record of pre-trial. T h e p r o c e e d i n g s in
the pre-trial s h a l l b e r e c o r d e d . U p o n t h e t e r m i n a 317

RULE 18

REMEDIAL LAW COMPENDIUM

SEC. 7

tion thereof, the court shall issue an order w h i c h


shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements
or admissions made by the parties as to any of the
matters considered. Should the action proceed to
trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall
control the subsequent course of the action, unless
modified before trial to prevent manifest injustice.
(5a, R20)
NOTES
1. T h i s provision on the p r o c e d u r e in p r e - t r i a l
proceedings in civil cases is different from t h a t obtaining
in c r i m i n a l cases w h e r e i n , as provided in Sec. 2 of Rule
118, an a g r e e m e n t or admission of a p a r t y in t h e p r e - t r i a l
conference s h a l l be admissible a g a i n s t h i m only if reduced
to w r i t i n g a n d signed by h i m a n d his counsel. However,
t h e b i n d i n g effect of t h e p r e - t r i a l order issued u n d e r t h i s
section is s u b s t a n t i a l l y t h e s a m e as a p r e - t r i a l order in
c r i m i n a l cases, as provided in Sec. 4 of said Rule.
2. T h e a m e n d m e n t of a p r e - t r i a l order is a d d r e s s e d
to t h e s o u n d d i s c r e t i o n of t h e c o u r t (Gotico vs. Leyte
Chinese Chamber of Commerce, L-39379, April 30, 1985).
3. W h e r e t h e a m o u n t of back r e n t a l s to be paid by
t h e d e f e n d a n t is s t a t e d in t h e p r e - t r i a l o r d e r in t h e n a t u r e
of a compromise a g r e e m e n t t h e r e o n , said p r e - t r i a l order
in t h a t s e n s e h a s t h e force of res judicata on t h a t issue
(M & M Management Aids, Inc. vs. CA, et al., G.R.
No. 53942, June 29, 1984).
4. A p r e - t r i a l o r d e r is not m e a n t to be a detailed
catalogue of e a c h a n d every issue t h a t is to be or may be

318

RULE 18

PRE-TRIAL

SEC. 7

t a k e n u p d u r i n g t h e t r i a l . I s s u e s t h a t a r e impliedly
included t h e r e i n by necessary implication are as much
i n t e g r a l p a r t s of t h e p r e - t r i a l order as those t h a t a r e
expressly s t i p u l a t e d (Velasco, et al. vs. Apostol, et al.,
L-44588, May 9, 1989).
5.
In A.M. No. 03-1-09-SC, t h e S u p r e m e C o u r t
issued a Rule on Guidelines to be Observed by Trial Court
J u d g e s a n d Clerks of Court in t h e Conduct of Pre-trial
a n d U s e of Deposition-Discovery M e a s u r e s , effective
August 16, 2004.

319

RULE 19
INTERVENTION
S e c t i o n 1. Who may intervene. A p e r s o n w h o
h a s a l e g a l i n t e r e s t in t h e m a t t e r in l i t i g a t i o n , or in
the success of either of the parties, or an interest
against both, or is so situated as to be adversely
a f f e c t e d by a d i s t r i b u t i o n or o t h e r d i s p o s i t i o n of
p r o p e r t y i n t h e c u s t o d y o f t h e c o u r t o r o f a n officer
thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider
whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of
the original parties, and w h e t h e r or not the interv e n e r ' s r i g h t s m a y be fully p r o t e c t e d in a s e p a r a t e
p r o c e e d i n g . (2[2], [b]a, R12)
NOTES
1. This r i g h t to intervene is not an absolute right.
The procedure to secure t h e r i g h t to i n t e r v e n e is fixed by
t h e s t a t u t e or rule, a n d intervention can be secured only
in accordance w i t h t h e t e r m s of t h e applicable provision.
Under our rule on intervention, the allowance or
disallowance of a motion to intervene is a d d r e s s e d to the
sound discretion of t h e court (Big Country Ranch Corp.
vs. CA, et al., G.R. No. 102927, Oct. 12, 1993).
2. I n t e r v e n t i o n is not intended to change t h e n a t u r e
and c h a r a c t e r of t h e action itself (Garcia, etc., et al. vs.
David, et al., 67 Phil. 279). In general, an i n d e p e n d e n t
controversy cannot be injected into a suit by intervention
(67A C.J.S. 805), hence s u c h i n t e r v e n t i o n will not be
allowed w h e r e it would enlarge t h e issues in t h e action
a n d e x p a n d t h e scope of t h e r e m e d i e s (Big Country
Ranch Corp. vs. CA, et al., supra).

320

RULE 19

INTERVENTION

SEC. 1

3. Intervention is distinguished from interpleader


(Rule 62) as follows:
a. Intervention is an ancillary action, while interpleader is an original action;
b . I n t e r v e n t i o n i s p r o p e r i n a n y o f t h e four
s i t u a t i o n s m e n t i o n e d in t h i s Rule, while i n t e r p l e a d e r
p r e s u p p o s e s t h a t t h e plaintiff h a s n o i n t e r e s t i n t h e
subject-matter of the action or h a s an i n t e r e s t t h e r e i n
which, in whole or in part, is not disputed by the other
p a r t i e s to t h e action; and
c. In a complaint in intervention, the defendants
are already original p a r t i e s to the pending suit, while in
interpleader t h e defendants are being sued precisely to
implead t h e m .
4 . A n i n t e r e s t i n g q u e s t i o n i s t h e effect u p o n
a c o m p l a i n t - i n - i n t e r v e n t i o n by t h e d i s m i s s a l of t h e
principal action wherein such intervention was sought.
The confusion h e r e i n s e e m s to have a r i s e n from t h e
decisions of t h e S u p r e m e Court in Barangay Matictic,
etc. vs. Elbinias, etc., et al. (L-48769, Feb. 27, 1987) and
Metropolitan Bank and Trust Co. vs. Presiding Judge,
etc., et al. (G.R. No. 89909, Sept. 2 1 , 1990). While in
Matictic it was held t h a t the dismissal of the main case
barred further action on the intervention, in Metropolitan t h e c o m p l a i n t - i n - i n t e r v e n t i o n s u r v i v e d a n d w a s
allowed to proceed d e s p i t e t h e dismissal of t h e m a i n
action. The two cases actually rest on different facts and
t h e s e e m i n g l y o p p o s i n g decisions t h e r e i n a r e easily
reconcilable.
In Matictic, the main action, an expropriation case,
was filed by t h e M u n i c i p a l i t y of N o r z a g a r a y a g a i n s t
private respondents who were charging and collecting toll
fees on feeder roads in Barangay Matictic. Later, the
m u n i c i p a l m a y o r evinced his desire to w i t h d r a w t h e
expropriation case, whereupon petitioner barangay filed
a motion for intervention, contending t h a t the result of
321

RULE 19

REMEDIAL LAW COMPENDIUM

SEC. 1

the expropriation case would affect its social and economic


development.
Without taking action on the motion for
intervention, r e s p o n d e n t t r i a l c o u r t d i s m i s s e d t h e
e x p r o p r i a t i o n case, w i t h o u t prejudice, on t h e s i n g u l a r
r e a s o n t h a t t h e s a m e w a s filed w i t h o u t t h e r e q u i s i t e
prior Presidential approval. On certiorari, the Supreme
Court ruled t h a t t h e barangay, which is a p a r t of but a
different political entity, cannot question the order
dismissing the expropriation case. Since said order had
achieved
finality, t h e d i s m i s s a l of t h e m o t i o n for
intervention was unavoidable as t h e m a i n action, having
ceased to exist, t h e r e was no pending proceeding wherein
t h e intervention may be based. Besides, its i n t e r e s t s may
be protected in a separate case which it may prevail upon
t h e municipality to refile or, if t h e i n t e r v e n o r h a s t h e
requisite authority, it can file t h e action for expropriation
itself.
In Metropolitan, petitioner b r o u g h t a replevin suit
for r e c o v e r y of a i r c o n d i t i o n i n g u n i t s , i n s t a l l e d in a
building a c q u i r e d by p r i v a t e r e s p o n d e n t s , which w e r e
o b t a i n e d from Raycor Air Control S y s t e m , I n c . on an
a r r a n g e m e n t financed by loans obtained from petitioner.
Said airconditioning corporation was allowed by the trial
court to intervene and, after its complaint-in-intervention
was admitted and t h e a n s w e r s t h e r e t o were filed, t h e case
was set for trial. Prior t h e r e t o , petitioner b a n k and the
building o w n e r s e n t e r e d into a compromise a g r e e m e n t
and, on t h e i r joint motion, t h e complaint was dismissed
with prejudice. However, on motion of intervenor, said
order was reconsidered and set aside. Thereafter, the trial
c o u r t allowed t h e filing of an a m e n d e d c o m p l a i n t - i n intervention and petitioner w e n t to t h e Court of Appeals
on certiorari to challenge t h e corresponding orders of t h e
lower court which, however, were s u s t a i n e d by the
Court of Appeals.
The S u p r e m e Court, on appeal, rejected petitioner's
complaint against allowing the intervention suit to
322

RULE 19

INTERVENTION

SEC. 1

proceed despite the dismissal of the main action. In t r u t h ,


there was no final dismissal of the main case and its
r e i n s t a t e m e n t w a s p r o p e r . T h e j o i n t motion o f t h e
plaintiff and defendants t h e r e i n to dismiss the case only
affected t h e i r respective claims inter se but cannot affect
t h e r i g h t s of t h e intervenor. When an intervenor has
become a party to a suit, the trial court cannot dismiss the
intervention suit on t h e basis of an agreement between
the original p a r t i e s to t h e action unless the intervenor is
a p a r t y in such a g r e e m e n t .
H a v i n g b e e n p e r m i t t e d to become a p a r t y to t h e
action, the intervenor is entitled to have the issues raised
between him and the original parties tried and determined.
The plaintiff h a s no absolute right to p u t the intervenor
out of court by t h e dismissal of the action, nor do t h e
original p a r t i e s to t h e suit have the power to waive or
otherwise a n n u l the s u b s t a n t i a l rights of said intervenor.
When an intervening petition has been filed, a plaintiff
may not dismiss t h e action in any respect to the prejudice
of the intervenor.
Since the complaint-in-intervention was filed before
plaintiff's action had been expressly dismissed,
the
intervener's complaint was not subject to dismissal on the
ground t h a t no action was pending, because dismissal of
p l a i n t i f f s action did not affect the rights of the intervenor
or effect the dismissal of intervener's complaint. Moreover,
t o r e q u i r e p r i v a t e r e s p o n d e n t t o refile a n o t h e r case
will r e s u l t i n u n n e c e s s a r y d e l a y a n d e x p e n s e s a n d
entail multiplicity of suits. This would, defeat the very
p u r p o s e of i n t e r v e n t i o n which is to d e t e r m i n e all
conflicting claims on the m a t t e r in litigation and settle
in o n e a c t i o n a n d by a s i n g l e j u d g m e n t t h e w h o l e
controversy among t h e persons involved.
5. While, as a rule, intervention is optional (Cruzcosa, et al. vs. Concepcion, et al., 101 Phil. 146)
and w h e t h e r t h e failure to intervene may be deemed as
323

RULE 19

REMEDIAL LAW COMPENDIUM

SEC. 1

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


et al., 102 Phil. 577), it is b e l i e v e d t h a t w h e r e t h e
intervener's rights are interwoven in the pending
case and he had due notice of t h e proceedings, he will
t h e r e a f t e r be e s t o p p e d from q u e s t i o n i n g t h e decision
rendered t h e r e i n t h r o u g h a n o t h e r action.
6. An improper denial of a motion for intervention
is correctible by a p p e a l (Ortiz vs. Trent, 13 Phil. 130;
Hospicio de San Jose, et al. vs. Piccio, et al., 99 Phil. 1039
fUnrep.J), b u t if t h e r e is g r a v e a b u s e of d i s c r e t i o n ,
m a n d a m u s will lie, where t h e r e is no other plain, speedy
and adequate remedy
(Dizon vs. Romero, L-26252,
Dec. 24, 1968; Macias, et al. vs. Cruz, et al., L-28947,
Jan. 17, 1973, j o i n t l y d e c i d i n g t h e r e i n L 29235 a n d
L-30935). On t h e other hand, an improper g r a n t i n g of a
motion for intervention may be controlled by certiorari and
p r o h i b i t i o n . W h e n t h e r i g h t s of t h e p a r t y s e e k i n g to
intervene will not be prejudiced by t h e j u d g m e n t in t h e
m a i n c a s e a n d c a n be fully p r o t e c t e d in a s e p a r a t e
proceeding, the court may deny t h e intervention sought
(Pflieder vs. De Britanica, L-19077, Oct. 20, 1964).
7. For an e n u m e r a t i o n of cases wherein intervention
was held to be proper, see Batama Farmer's Cooperative
Marketing Association, et al. vs. Rosal, et al. (L-30526,
Nov. 29, 1971).
8. To w a r r a n t intervention, it m u s t be shown t h a t
t h e m o v a n t h a s legal i n t e r e s t in t h e m a t t e r in litigation
and consideration m u s t be given as to w h e t h e r or not t h e
adjudication of t h e rights of t h e original p a r t i e s may be
delayed or prejudiced, while those of t h e i n t e r v e n o r may
be protected in a s e p a r a t e proceeding. Both r e q u i r e m e n t s
m u s t concur.
The i n t e r e s t which entitles a person to intervene in a
suit m u s t be on t h e m a t t e r in litigation a n d of such direct
and immediate c h a r a c t e r t h a t t h e i n t e r v e n o r will e i t h e r

324

RULE 19

INTERVENTION

SEC. 2

gain or lose by t h e direct legal operation and effect of the


judgment (6318 v. Nocom, G.R. No. 175989, Feb. 4, 2008).
The words "an interest in t h e subject" mean a direct interest in the cause of action as pleaded and which would put
the intervenor in a legal position to litigate a fact alleged
in t h e complaint, w i t h o u t t h e e s t a b l i s h m e n t of which
plaintiff could not recover (Magsaysay-Labrador, et al. vs.
CA, et al., G.R. No. 58168, Dec. 19, 1989).
S e c . 2.
Time to intervene.
i n t e r v e n e m a y b e filed a t a n y t i m e
of j u d g m e n t by the trial court.
pleading-in-intervention shall be
motion and served on the original

T h e m o t i o n to
before r e n d i t i o n
A copy of the
attached to the
p a r t i e s , (n)

NOTES
1. The former r u l e as to w h e n i n t e r v e n t i o n may
be allowed was expressed in Sec. 2, Rule 12 as "before
or d u r i n g a t r i a l , " a n d t h i s a m b i g u i t y also gave rise
to indecisive doctrines. T h u s , inceptively it was held
t h a t a motion for leave to intervene may be filed "before
or d u r i n g a t r i a l " e v e n on t h e day w h e n t h e case is
being s u b m i t t e d for decision (Bool, et al. vs. Mendoza,
et al, 92 Phil. 892), as long as it will not unduly delay
the disposition of the case. The term "trial" was used in its
restricted sense, i.e., t h e period for the introduction of
e v i d e n c e by b o t h p a r t i e s . H e n c e , if t h e m o t i o n for
intervention was filed after the case had already been
s u b m i t t e d for decision, t h e denial thereof was p r o p e r
(Vigan Electric Light Co., Inc. vs. Arciaga, L-29207
and L-29222, July 31, 1974).
However, it w a s l a t e r
held t h a t i n t e r v e n t i o n may b e allowed a t any t i m e
before the rendition of final judgment (Lichauco vs. CA,
et al, L-23842, Mar. 13, 1975). F u r t h e r , in the exceptional case of Director of Lands vs. CA, et al. (L-45163,
Sept. 25, 1979), the Supreme Court permitted intervention in a case pending before it on appeal in order to avoid
325

RULE 19

REMEDIAL LAW COMPENDIUM

SECS. 3 4

injustice a n d in consideration of t h e n u m b e r of p a r t i e s
who may be affected by t h e dispute involving overlapping of n u m e r o u s land titles.
2. The uncertainty in these rulings has been
eliminated by t h e p r e s e n t Sec. 2 of t h i s a m e n d e d Rule
which p e r m i t s t h e filing of t h e motion to intervene at any
time before the rendition of t h e j u d g m e n t in t h e case, in
line w i t h t h e d o c t r i n e in Lichauco above cited. T h e
justification advanced for t h i s is t h a t before j u d g m e n t is
rendered, t h e court, for good cause shown, may still allow
t h e introduction of additional evidence and t h a t is still
w i t h i n a liberal i n t e r p r e t a t i o n of t h e period for t r i a l .
Also, s i n c e n o j u d g m e n t h a s y e t b e e n r e n d e r e d , t h e
m a t t e r subject of t h e i n t e r v e n t i o n may still be readily
resolved and i n t e g r a t e d in t h e j u d g m e n t disposing of all
c l a i m s i n t h e case, a n d would not r e q u i r e a n o v e r a l l
r e a s s e s s m e n t of said claims as would be t h e case if the
j u d g m e n t had already been r e n d e r e d (see also Looyuko,
et al. vs. CA, et al, G.R. No. 102696, July 12, 2001).
S e c . 3.
Pleadings-in-intervention. T h e i n t e r v e n o r s h a l l file a c o m p l a i n t - i n - i n t e r v e n t i o n if he
a s s e r t s a c l a i m a g a i n s t e i t h e r o r all o f t h e o r i g i n a l
parties, or an answer-in-intervention if he unites
with the defending party in resisting a claim against
t h e l a t t e r . (2[c]a, R12)
S e c . 4.
Answer to complaint-in-intervention.

The answer to the complaint-in-intervention


s h a l l b e filed w i t h i n f i f t e e n (15) d a y s f r o m n o t i c e
of the order admitting the same, unless a different
p e r i o d i s f i x e d b y t h e c o u r t . (2[d]a, R 1 2 )
NOTES
1. Where t h e intervenor unites with t h e defendant,
he i n t e r v e n e s by filing an a n s w e r - i n - i n t e r v e n t i o n . If
326

RULE 19

INTERVENTION

SECS. 3-4

he unites with t h e plaintiff, he may file a complaint-ini n t e r v e n t i o n a g a i n s t t h e defendant. If he does not ally
h i m s e l f w i t h e i t h e r p a r t y h e m a y file a c o m p l a i n t in-intervention a g a i n s t both.
2. Sec. 4 of t h i s Rule, as amended, now requires an
answer to t h e complaint-in-intervention within 15 days
from notice of t h e o r d e r a d m i t t i n g t h e same, unless a
different period is fixed by t h e court. This changes the
procedure u n d e r t h e former Rule wherein it was optional
to file an a n s w e r to t h e complaint-in-intervention, and
also s e t s a s i d e t h e doctrine in Luna vs. Abaya, et al.
(86 Phil. 472) which held t h a t t h e r e would be no default
since u n d e r t h e t h e n existing rule the filing of the answer
was permissive. This change of procedure does not, of
course, affect t h e r u l e e n u n c i a t e d in Froilan vs. Pan
Oriental Shipping Co. (95 Phil. 905) t h a t if an a n s w e r
is v a l i d l y filed to t h e c o m p l a i n t - i n - i n t e r v e n t i o n , t h e
answering p a r t y may assert a counterclaim therein against
the intervenor.

327

RULE 20
CALENDAR OF C A S E S
S e c t i o n 1. Calendar of cases. T h e c l e r k of
court, under the direct supervision of the judge,
s h a l l k e e p a c a l e n d a r of c a s e s for p r e - t r i a l , t h o s e
whose trials were adjourned or postponed, and
t h o s e w i t h m o t i o n s t o s e t for h e a r i n g . P r e f e r e n c e
s h a l l be g i v e n to habeas corpus c a s e s , e l e c t i o n c a s e s ,
special civil actions, and t h o s e so required by law.
( l a , R22)
NOTE
1. To e n s u r e a more efficient monitoring of cases for
both supervision a n d reportorial purposes, t h e clerk of
c o u r t i s now r e q u i r e d t o k e e p a t l e a s t four s e p a r a t e
c a l e n d a r s reflecting t h e cases for pre-trial, for trial, those
whose t r i a l s were adjourned a n d postponed, a n d those
requested to be set for h e a r i n g . The so-called preferential cases m u s t also be t a k e n into account. This section
further makes it the duty of the presiding judge to
exercise direct supervision over those m a t t e r s .
S e c . 2. Assignment of cases. T h e a s s i g n m e n t
of cases to the different branches of a court shall
be d o n e e x c l u s i v e l y by raffle. The a s s i g n m e n t
shall be done in open session of which adequate
notice shall be g i v e n so as to afford i n t e r e s t e d
p a r t i e s o p p o r t u n i t y t o b e p r e s e n t . ( 7 a , R22)
NOTE
1. The a s s i g n m e n t of cases is required to be done
exclusively by raffle, a n d t h i s s e t s aside t h e c o n t r a r y
ruling
in
Commissioner of Immigration
vs.
Reyes

328

RULE 20

CALENDAR OF CASES

SEC. 2

(L-23826, Dec. 28, 1964). Also, t h i s provision of t h e


Rule r e i t e r a t e s t h e r e q u i r e m e n t in some circulars of the
S u p r e m e Court t h a t t h e raffle of cases shall be done in
open session with prior a d e q u a t e notice to the interested
parties.

329

RULE 21
SUBPOENA
S e c t i o n 1. Subpoena and subpoena duces tecum.
S u b p o e n a is a p r o c e s s d i r e c t e d to a p e r s o n
requiring him to attend and to testify at the
h e a r i n g or the trial of an action, or at any investig a t i o n c o n d u c t e d b y c o m p e t e n t a u t h o r i t y , o r for t h e
taking of his deposition. It may also require him
to bring with him any books, documents, or
other things under his control, in which case it is
c a l l e d a s u b p o e n a duces tecum, ( l a , R23)
NOTE
1. The s u b p o e n a referred to in t h e first s e n t e n c e
of t h i s s e c t i o n is d i s t i n c t i v e l y c a l l e d a s u b p o e n a ad
testificandum.
T h i s is t h e t e c h n i c a l a n d d e s c r i p t i v e
t e r m for t h e o r d i n a r y s u b p o e n a (Catty vs. Brobelbank,
124 N.J. Law 360, 12 A. 2d 128).
S e c . 2. By whom issued.
be i s s u e d by:

The subpoena may

a) The court before w h o m the witness is


required to attend;
b) The court of the place where the deposition
is to be taken;
c ) T h e officer o r b o d y a u t h o r i z e d b y l a w t o d o
so in connection with investigations conducted by
s a i d officer or body; or
d) Any J u s t i c e of the S u p r e m e Court or of
the Court of Appeals in any case or investigation
pending within the Philippines.

330

RULE 21

SUBPOENA

SEC. 3

W h e n a p p l i c a t i o n for a s u b p o e n a to a p r i s o n e r
i s m a d e , t h e j u d g e o r officer s h a l l e x a m i n e a n d s t u d y
carefully such application to determine whether the
s a m e is m a d e for a v a l i d p u r p o s e .
N o p r i s o n e r s e n t e n c e d t o d e a t h , reclusion
perpetua or life i m p r i s o n m e n t a n d w h o is c o n f i n e d
in any penal institution shall be brought outside
t h e s a i d p e n a l i n s t i t u t i o n for a p p e a r a n c e o r
attendance in any court unless authorized by the
S u p r e m e Court. (2a, R23)
NOTES
1. The e n u m e r a t i o n of the p e r s o n s who are
authorized to issue subpoenas has been expanded by the
inclusion of t h e officer or body a u t h o r i z e d by law in
connection with investigations conducted by them. Also,
a municipal t r i a l court may now issue a subpoena for
the a t t e n d a n c e before it of a prisoner even if he is not
confined in a m u n i c i p a l jail, u n l e s s such p r i s o n e r h a s
b e e n s e n t e n c e d to d e a t h , reclusion perpetua or life
i m p r i s o n m e n t and his desired a p p e a r a n c e has not
been authorized by t h e S u p r e m e Court.
2. T h e l a s t t w o p a r a g r a p h s of t h i s s e c t i o n a r e
precautionary m e a s u r e s evolved from judicial experience.
These w e r e t a k e n from A d m i n i s t r a t i v e Circular No. 6
of the S u p r e m e Court, dated December 5, 1977.
S e c . 3. Form and contents. A s u b p o e n a s h a l l
state the name of the court and the title of the
action or investigation, shall be directed to the
person whose attendance is required, and in the
c a s e of a s u b p o e n a duces tecum, it s h a l l a l s o
contain a reasonable description of the books,
documents or things demanded which must appear
to t h e c o u r t prima facie r e l e v a n t . (3a, R23)

331

RULE 21

REMEDIAL LAW COMPENDIUM

SECS. 4, 5

S e c . 4. Quashing a subpoena. T h e c o u r t m a y
q u a s h a s u b p o e n a duces tecum u p o n m o t i o n
promptly made and, in any event, at or before the
time specified therein if it is unreasonable and
oppressive, or the relevancy of the books,
documents or things does not appear, or if the
person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the
production thereof.
T h e c o u r t m a y q u a s h a s u b p o e n a ad testificandum o n t h e g r o u n d t h a t t h e w i t n e s s i s n o t b o u n d
thereby. In either case, the subpoena may be
quashed on the ground that the w i t n e s s fees and
kilometrage allowed by these Rules were not
t e n d e r e d w h e n t h e s u b p o e n a w a s s e r v e d . (4a, R23)
NOTE
1. A subpoena duces tecum may be q u a s h e d upon
proof t h a t (a) it is u n r e a s o n a b l e and oppressive, (b) t h e
articles sought to be produced do not a p p e a r prima facie
to be r e l e v a n t to t h e issues, a n d (c) t h e person a s k i n g
for t h e s u b p o e n a d o e s n o t a d v a n c e t h e c o s t for t h e
production of t h e articles desired.
The second p a r a g r a p h of Sec. 4 was added to m a k e it
explicit t h a t a s u b p o e n a ad testificandum m a y also be
q u a s h e d if t h e witness is not bound thereby (see Sec. 10).
Also, it was considered necessary to r e i t e r a t e herein, by
m a k i n g n o n - c o m p l i a n c e a g r o u n d for q u a s h a l of a
s u b p o e n a duces tecum, t h a t t h e w i t n e s s fees a n d
kilometrage should be tendered upon service of the
s u b p o e n a (see Sec. 6), w h i c h r e q u i r e m e n t is often
deliberately or unknowingly overlooked.
S e c . 6. Subpoena for depositions. P r o o f of
s e r v i c e of a n o t i c e to t a k e a d e p o s i t i o n , as p r o v i d e d
i n s e c t i o n s 1 5 a n d 2 5 o f R u l e 23, s h a l l c o n s t i t u t e
332

RULE 21

SUBPOENA

SECS. 6-8

s u f f i c i e n t a u t h o r i z a t i o n for t h e i s s u a n c e o f
s u b p o e n a s for t h e p e r s o n s n a m e d i n s a i d n o t i c e
by the clerk of the court of the place in which the
d e p o s i t i o n is to be taken. The clerk shall not,
h o w e v e r , i s s u e a s u b p o e n a duces tecum to a n y s u c h
p e r s o n w i t h o u t a n o r d e r o f t h e c o u r t . (5a, R23)
S e c . 6. Service. S e r v i c e of a s u b p o e n a
shall be m a d e in the same manner as personal or
substituted service of summons. The original
shall be exhibited and a copy thereof delivered
to the person on w h o m it is served, tendering to
h i m t h e f e e s for o n e day's a t t e n d a n c e a n d t h e
kilometrage allowed by these Rules, except that,
w h e n a s u b p o e n a is i s s u e d by or on behalf of
the R e p u b l i c of t h e P h i l i p p i n e s or an officer or
agency thereof, the t e n d e r need not be made. The
service must be made so as to allow the witness
a r e a s o n a b l e t i m e for p r e p a r a t i o n a n d t r a v e l t o
t h e p l a c e of a t t e n d a n c e .
If t h e s u b p o e n a is duces
tecum, t h e r e a s o n a b l e c o s t o f p r o d u c i n g t h e b o o k s ,
documents or things demanded shall also be
t e n d e r e d . (6a, R23)
S e c . 7. Personal appearance in court. A p e r s o n
present in court before a judicial officer may
be required to testify as if he were in attendance
upon a s u b p o e n a i s s u e d by such court or
officer. (10, R23)
S e c . 8.
Compelling attendance. In c a s e of
f a i l u r e of a w i t n e s s to a t t e n d , t h e c o u r t or j u d g e
issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring
h i m before t h e c o u r t o r officer w h e r e h i s a t t e n d a n c e
333

RULE 21

REMEDIAL LAW COMPENDIUM

SECS. 9, 10

is required, and the cost of such warrant and


seizure of such witness shall be paid by the
witness if the court issuing it shall determine
that his failure to answer the subpoena was
w i l l f u l a n d w i t h o u t j u s t e x c u s e . (11, R23)
S e c . 9. Contempt. F a i l u r e by a n y p e r s o n
without adequate cause to obey a subpoena served
upon h i m shall be deemed a contempt of the court
from w h i c h the subpoena is issued. If the subpoena
was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable
l a w or R u l e . (12a, R23)
NOTE
1. S e e S e c . 3, et seq., R u l e 71 on i n d i r e c t or
constructive contempt. While, under t h a t section,
indirect c o n t e m p t is to be p u n i s h e d only after w r i t t e n
c h a r g e a n d h e a r i n g , i t i s also provided t h a t " n o t h i n g
in t h i s section s h a l l be so c o n s t r u e d as to p r e v e n t t h e
court from i s s u i n g process to b r i n g t h e accused p a r t y
i n t o c o u r t , o r from h o l d i n g h i m i n c u s t o d y p e n d i n g
such proceedings."
S e c . 10. Exceptions. T h e p r o v i s i o n s of s e c t i o n s
8 a n d 9 of t h i s R u l e s h a l l n o t a p p l y to a w i t n e s s w h o
r e s i d e s m o r e t h a n o n e h u n d r e d (100) k i l o m e t e r s
from his residence to the place where he is to
testify by the ordinary course of travel, or to a
detention prisoner if no permission of the court in
w h i c h h i s c a s e i s p e n d i n g w a s o b t a i n e d . (9a, R23)
NOTES
1. The r i g h t not to be compelled to a t t e n d upon a
subpoena by reason of t h e distance from t h e residence of
t h e witness to the place w h e r e he is to testify is sometimes
334

RULE 21

SUBPOENA

SEC. 10

called t h e viatory right of a witness. The p r e s e n t provision, unlike its predecessor, does not distinguish as to
w h e t h e r or not t h e witness resides in t h e same province
as t h e place w h e r e he is required to go a n d testify or
produce documents. W h a t is now determinative is t h a t
the distance b e t w e e n both places does not exceed
100 kilometers by t h e ordinary course of travel, generally
by o v e r l a n d t r a n s p o r t a t i o n . T h e former d i s t a n c e of
50 kilometers h a s been increased in view of t h e faster
and more available m e a n s of travel now obtaining in t h e
country.
2.
In t h e c a s e of Petition for Contempt Against
Benjamin Ravanera (L-15902, Dec. 23, 1964), the Supreme
Court declined to p a s s on t h e issue as to w h e t h e r t h i s
viatory right is available in criminal cases. However, in
the later case of People vs. Montejo (L-24154, Oct. 31, 1967),
it was held t h a t t h i s right is available only in civil cases.

335

RULE 22
COMPUTATION OF TIME
S e c t i o n 1. How to compute time. In c o m p u t i n g
any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable
statute, the day of the act or event from which the
designated period of time begins to run is to be
excluded and the date of performance included.
If the last day of the period, as thus computed,
f a l l s on a S a t u r d a y , a S u n d a y , or a l e g a l h o l i d a y
in the place where the court sits, the time shall
n o t r u n u n t i l t h e n e x t w o r k i n g d a y . (n)
NOTES
1. The p e r t i n e n t provisions of t h e Civil Code s t a t e :
"Art. 13. W h e n t h e laws speak of y e a r s , m o n t h s ,
days or nights, it shall be understood t h a t y e a r s are
of t h r e e h u n d r e d sixty-five d a y s each; m o n t h s , of
t h i r t y days; days, of twenty-four h o u r s ; a n d nights
from s u n s e t to s u n r i s e .
If m o n t h s a r e d e s i g n a t e d by t h e i r n a m e , they
shall be computed by t h e n u m b e r of days which they
respectively have.
In c o m p u t i n g a p e r i o d , t h e first day s h a l l be
excluded, a n d t h e last day included."
2. This Rule refers to t h e computation of a period of
time a n d not to a specific date fixed for t h e performance
of an act. It a p p l i e s only w h e n t h e period of t i m e is
p r e s c r i b e d by t h e s e Rules, by order of t h e court or by
any applicable statute. It adopts the rule on pretermission
of h o l i d a y s , t h a t is, t h e exclusion of s u c h h o l i d a y s in
t h e c o m p u t a t i o n of t h e period, w h e n e v e r t h e first two
conditions s t a t e d in t h i s section are p r e s e n t .
336

RULE 22

COMPUTATION OF TIME

3. Thus, t h e method of computation u n d e r t h i s Rule


does not generally apply to those provided in a contract
(Art. 1159, Civil Code), a specific d a t e s e t for a court
hearing or a foreclosure sale (Rural Bank vs. CA, et al.,
L-32116, April 21,1981) or prescriptive (not reglementary)
periods specifically provided by the Revised P e n a l
Code for felonies t h e r e i n
(Yapdiangco vs. Buencamino,
L-28841, June 24, 1983).
4. Since this Rule is likewise based on the provisions
of Art. 13 of t h e Civil Code, t h e m e a n i n g of t h e t e r m s
t h e r e i n are also applicable. Accordingly, a pleading filed
on t h e l a s t day of t h e r e g l e m e n t a r y period b u t after
office h o u r s is still considered seasonably filed if duly
mailed (Caltex [Phil.], Inc. vs. Katipunan Labor Union,
98 Phil. 340) or is received by a person authorized to do
so (see De Chavez vs. Ocampo, et al., 66 Phil. 76), since
a day consists of 24 hours.
5. As e x p l a i n e d h e r e a f t e r in Rule 39, t h e period
of redemption of real properties sold at execution sale is
12 months, hence following t h e provisions of this Rule in
relation to t h e aforequoted Art. 13 of t h e Civil Code, the
redemption period is actually 360 days. In computing when
such period begins to r u n or ends, the provisions of this
Rule govern.
6. In c o n s i d e r i n g t h e a p p l i c a t i o n of t h e r u l e on
p r e t e r m i s s i o n of holidays, t h e second sentence of t h i s
section refers to t h e place where the court sits. This is
because c e r t a i n non-working holidays, or special days
as they were sometimes termed, are applicable to and
observed only in some p a r t i c u l a r places or regions of
the country.
7. In Labad vs. The University of Southwestern
Philippines, et al. (G.R. No. 139665, A u g . 9, 2001),
this section a n d t h e s u b s e q u e n t ramifications a r i s i n g
therefrom were explained by the Supreme Court as
337

RULE 22

REMEDIAL LAW COMPENDIUM

SEC. 1

h e r e i n s u b s t a n t i a l l y indicated, t h u s : "Based on Sec. 1,


Rule 22 and as applied in several cases, where t h e last
day for doing any act required or p e r m i t t e d by law falls
on a S a t u r d a y , a Sunday, or a legal holiday in t h e place
where t h e court sits, t h e time shall not r u n u n t i l t h e next
working day. In this case, petitioner still had until
D e c e m b e r 28, 1998, a M o n d a y a n d t h e n e x t b u s i n e s s
day, to move for a 15-day e x t e n s i o n c o n s i d e r i n g t h a t
December 26, 1998, t h e last day for petitioner to file her
petition for review, fell on a S a t u r d a y . The motion for
extension filed on December 28, 1998 w a s filed on time
since it w a s filed before t h e expiration of t h e time sought
to be extended."
The n e x t i s s u e to resolve w a s how t h e 15-day
extension should be reckoned, e i t h e r from December 26,
1998 or D e c e m b e r 28, 1998. As a r u l e , t h e e x t e n s i o n
should be t a c k e d to t h e original period a n d commence
immediately after the expiration of such period.
However, in Moskowsky vs. Court of Appeals, et al.
(G.R. No. 104222, M a r . 3, 1994) a n d Vda. de Capulong,
et al. vs. Workmen's Insurance Co., Inc., et al. (L-30960,
Oct. 5, 1989), t h e S u p r e m e Court allowed t h e extended
period to commence from t h e specific t i m e p r a y e d for
i n t h e m o t i o n for e x t e n s i o n . I n t h i s c a s e , p e t i t i o n e r
specifically manifested t h a t she be g r a n t e d an extension
of 15 days from December 28, 1998, or u n t i l J a n u a r y 12,
1999, to file h e r p e t i t i o n for r e v i e w . T h e p e r i o d for
reckoning t h e commencement of t h e additional 15 days
should hence be from December 28, 1998. Accordingly,
h e r p e t i t i o n filed w i t h t h e C o u r t o f A p p e a l s o n
J a n u a r y 12, 1999, exactly 15 d a y s from D e c e m b e r 28,
1998, was filed on time.
8. On the complementary decisional rule in the
computation of periods as applied to pleadings, see t h e
notes u n d e r Sec. 6, Rule 11.

338

RULE 22

COMPUTATION OF TIME

SEC. 2

9.
The much later case of Commissioner of Internal
Revenue, et al. vs. Primetown Property Group, Inc.
(G.R. No. 162155, Aug. 28, 2007) calls for a revisiting of
t h e foregoing comments and holdings on t h e computation
of periods of time allowed or prescribed by the Rules, a
court order or an applicable s t a t u t e . It shall be noted here
t h a t t h e period of time in dispute involves Sec. 229 of the
National I n t e r n a l Revenue Code which provides for t h e
two-year prescriptive period for filing a judicial claim for
tax refund or credit reckoned from the p a y m e n t of said
tax or penalty. T h e r e was no question t h a t t h e taxpayer's
right to claim a refund or credit arose on April 14, 1998
when it filed its final adjusted r e t u r n . The controverted
issue was w h e t h e r t h e two-year period was equivalent to
730 days, p u r s u a n t to Art. 13, Civil Code, as claimed by
petitioner, hence t h e respondent's claim s u b m i t t e d 731
days after its aforesaid r e t u r n was one day beyond t h e
prescriptive period; or, as contended by the respondent,
the 731st day was within t h e prescriptive period since the
year 2000 was a leap y e a r and accordingly consisted of
366 days.
T h e S u p r e m e C o u r t r e c a l l e d t h a t i n National
Marketing Corporation vs. Tecson (97 Phil. 70), it had
ruled t h a t a y e a r is equivalent to 365 days regardless of
w h e t h e r it is a calendar year or a leap year, which was
not always consistently so. At any rate, it called attention
to t h e fact t h a t in 1987, E.O. 297, or the Administrative
Code of 1987, was enacted, and Sec. 3 1 , C h a p t e r VIII,
Book I thereof provides:
S e c . 3 1 . Legal Periods. - " Y e a r " s h a l l be
understood to be twelve calendar months; "month" of
thirty days unless it refers to a specific month in which
case it shall be computed according to the n u m b e r of
days t h e specific month contains; "day" to a day of
twenty-four hours; and "night" from sunrise to sunset.

339

RULE 22

REMEDIAL LAW COMPENDIUM

SEC. 1

It e x p l a i n e d t h a t a c a l e n d a r m o n t h is "a m o n t h
designated in t h e calendar without regard to t h e n u m b e r
of days it may contain. It is the period of time r u n n i n g
from t h e beginning of a certain n u m b e r e d day up to, but
not including, the corresponding numbered day of the next
month, and if t h e r e is not a sufficient n u m b e r of days in
t h e next month, t h e n up to and including t h e last day of
t h a t m o n t h . T o i l l u s t r a t e , one c a l e n d a r m o n t h from
D e c e m b e r 3 1 , 2007 will be from J a n u a r y 1, 2 0 0 8 to
J a n u a r y 3 1 , 2008; one calendar month from J a n u a r y 31,
2008 will be from F e b r u a r y 1, 2008 u n t i l F e b r u a r y 29,
2008."
Since t h e r e obviously exists a manifest incompatibility
in t h e m a n n e r of computing legal periods u n d e r t h e Civil
Code a n d t h e A d m i n i s t r a t i v e Code of 1987, t h e Court
declared t h a t t h e aforecited provision of E.O. 292, being
t h e more r e c e n t law, governs t h e c o m p u t a t i o n of legal
periods. Since t h e two-year prescriptive period u n d e r t h e
facts of t h i s case consisted of 24 c a l e n d a r m o n t h s and
r e s p o n d e n t ' s claim was filed on t h e last day of t h e 24th
c a l e n d a r m o n t h , i t w a s c o n s e q u e n t l y filed w i t h i n t h e
prescriptive period.
10. T h i s t a x c a s e u n d e r c o m m e n t a f f o r d s t h e
opportunity to invite a t t e n t i o n to some of t h e holdings of
t h e S u p r e m e Court in National Marketing Corporation,
vs. Tecson, et al. (139 Phil. 584) on t h e a n t e c e d e n t s of
Art. 13 of t h e Civil Code which limits t h e connotation of
each "year" t h e r e i n to 365 days. Prior to t h e Civil Code of
Spain, t h e S p a n i s h S u p r e m e Court h a d held t h a t when
t h e law spoke of m o n t h s , it m e a n t a m o n t h of 30 days, not
t h e "natural," "solar," "calendar," (or "civil") m o n t h s in t h e
absense of express provisions to the contrary. This concept
was modified in t h e Philippines by Sec. 13 of our Revised
Administrative Code, p u r s u a n t to which a "month" shall
be understood to refer to a "calendar" m o n t h . With t h e
e n a c t m e n t of our Civil Code, we r e v e r t e d to t h e rule in
340

RULE 22

COMPUTATION OF TIME

SEC. 1

the S p a n i s h Civil Code, b u t with t h e addition of "years,"


which w a s o r d a i n e d t o m e a n 365 d a y s . T h e p r e s e n t
provisions of E . O . 292 a g a i n a d o p t s t h a t concept of a
calendar m o n t h , w i t h t h e modification of how many shall
compose a year.
1 1 . As e a r l i e r observed, t h e method of computation
u n d e r t h i s Rule does not in general apply to prescriptive
periods provided t h e r e i n by t h e Revised P e n a l Code for
felonies such as in A r t s . 90 and 91 thereof. The
Yapdiangco c a s e , supra, e x p a n d s on t h i s edict on t h e
a u t h o r i t y o f local a n d foreign d o c t r i n e s . I t i s t h e r e
d e m o n s t r a t e d t h a t a mistake is sometimes made in
applying s t a t u t e s of limitations in criminal cases and civil
suits. The two classes of s t a t u t e s are essentially different.
In civil s u i t s , t h e s t a t u t e is i n t e r p o s e d by t h e
legislature as an i m p a r t i a l a r b i t e r . In t h e construction of
the p e n a l s t a t u t e , t h e r e is no i n t e n d m e n t to be made in
favor of e i t h e r p a r t y . In criminal cases, t h e S t a t e is t h e
g r a n t o r s u r r e n d e r i n g by an a c t of grace t h e r i g h t to
prosecute a n d declaring an offense to be no longer t h e
subject of prosecution, hence such s t a t u t e s of limitations
are liberally construed in favor of t h e accused.
Also, t h e rule on pretermission of holidays in civil suits
provides t h a t in c o n s t r u i n g its s t a t u t e of limitations, the
first day is excluded a n d t h e last day included, unless t h a t
last day is dies non in which case t h e act may be done on
the succeeding business day. In criminal cases, such a
s i t u a t i o n c a n n o t l e n g t h e n t h e period fixed by law to
prosecute such offender. The waiver or loss of the right to
prosecute is a u t o m a t i c and by operation of law. Where
t h e last day to file an information falls on a Sunday or
legal holiday, t h e period cannot be extended up to t h e
next working day since prescription has already set in.
T h e q u e s t i o n of t h e a p p l i c a b i l i t y of t h i s Rule in
computing periods provided by an "applicable s t a t u t e , " as
341

RULE 22

REMEDIAL LAW COMPENDIUM

SEC. 2

generically referred to, could yield t h e occasion for a


r e l e v a n t c r i t i q u e b a s e d o n our own legal s y s t e m a n d
bibliography.
S e c . 2. Effect of interruption. S h o u l d an a c t
be done which effectively interrupts the running
of the period, the allowable period after such
i n t e r r u p t i o n shall start to run on t h e day after
notice of t h e c e s s a t i o n of the c a u s e thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the period,
(n)
NOTE
1. The original draft of this section referred to an
act or event which effectively i n t e r r u p t s t h e r u n n i n g of
t h e period of time contemplated in t h e preceding section.
T h e e v e n t r e f e r r e d to w o u l d i n c l u d e force majeure,
fortuitous e v e n t s or calamities. The question, of course,
is t h e d e t e r m i n a t i o n of w h e n t h e event occurred a n d was
t e r m i n a t e d , a n d how t h e p a r t y affected would know or be
made a w a r e of t h e period of such i n t e r r u p t i o n . It was
believed t h a t notice thereof can be given by t h e court to
t h e p a r t i e s , on a case to case basis.
T h e word "event" w a s accordingly e l i m i n a t e d a n d
only t h e "act" done was r e t a i n e d as an express cause for
t h e i n t e r r u p t i o n since t h a t fact would obviously be made
k n o w n or notice t h e r e o f given to t h e p a r t y concerned.
Parenthetically, the interruption of the reglementary
period as u n d e r s t o o d in t h i s section does not have t h e
s a m e concept as i n t e r r u p t i o n for p u r p o s e s of t h e s t a t u t e
of limitations or prescriptive periods in t h e Civil Code.

342

RULE 23
DEPOSITIONS PENDING ACTION
Section
1.
Depositions pending action,
when
may be taken. By l e a v e of c o u r t a f t e r j u r i s d i c t i o n
has been obtained over any defendant or over
property which is the subject of the action, or
without s u c h leave after an a n s w e r has been served,
the t e s t i m o n y of any person, w h e t h e r a party or not,
may be taken, at the instance of any party, by
deposition upon oral examination or written
interrogatories. The attendance of witnesses may
be compelled by the use of a subpoena as provided
in Rule 21. Depositions shall be taken only in
accordance with t h e s e Rules. The deposition of a
person confined in prison may be taken only by
leave of court on such terms as the court prescribes,
( l a , R24)
NOTES
1. Rules 23 to 28 provide for t h e different modes of
discovery t h a t m a y be resorted to by a p a r t y to an action,
viz.:
a.

Depositions pending action (Rule 23);

b. D e p o s i t i o n s before a c t i o n or p e n d i n g a p p e a l
(Rule 24);
c.

I n t e r r o g a t o r i e s to p a r t i e s (Rule 25);

d. Admission by adverse party (Rule 26);


e. Production or inspection of documents or things
(Rule 27); a n d
f. P h y s i c a l a n d m e n t a l e x a m i n a t i o n of p e r s o n s
(Rule 28).

343

RULE 23

REMEDIAL LAW COMPENDIUM

SEC. 1

Rule 29 provides for the legal consequences for t h e


refusal of a p a r t y to comply with such modes of discovery
lawfully resorted to by t h e adverse p a r t y .
2. In criminal cases, the t a k i n g of t h e deposition of
witnesses for t h e prosecution was formerly authorized by
Sec. 7, Rule 119 for t h e p u r p o s e of p e r p e t u a t i n g t h e
evidence to be p r e s e n t e d at t h e trial, without a similar
provision for defense w i t n e s s e s . However, in t h e 1985
R u l e s o n C r i m i n a l P r o c e d u r e , only t h e c o n d i t i o n a l
e x a m i n a t i o n , a n d not a deposition, of p r o s e c u t i o n
witnesses w a s p e r m i t t e d (Sec. 7, Rule 119) and t h i s was
followed in t h e l a t e s t revision (Sec. 15, Rule 119).
3. Depositions a r e classified into:
a. Depositions on oral e x a m i n a t i o n a n d depositions
upon w r i t t e n i n t e r r o g a t o r i e s ; or
b. D e p o s i t i o n s de bene esse a n d d e p o s i t i o n s in
perpetuam rei memoriam.
Depositions de bene esse a r e those t a k e n for purposes
of a p e n d i n g action and a r e r e g u l a t e d by Rule 23, while
depositions in perpetuam rei memoriam a r e those t a k e n
to p e r p e t u a t e evidence for p u r p o s e s of an a n t i c i p a t e d
action or further proceedings in a case on appeal a n d a r e
now r e g u l a t e d by Rule 24.
4. The court may d e t e r m i n e w h e t h e r t h e deposition
should be taken upon oral examination or written
i n t e r r o g a t o r i e s to p r e v e n t a b u s e or h a r a s s m e n t (De los
Reyes vs. CA, et al., L-27263, Mar. 17, 1975).
5. Trial judges should encourage the use of the
different modes of discovery since a knowledge of t h e
evidence of t h e adverse p a r t y may facilitate an amicable
s e t t l e m e n t or expedite t h e t r i a l of a case. However, since
resort t h e r e t o is not m a n d a t o r y , if t h e p a r t i e s choose not
to avail of discovery procedures, t h e p r e - t r i a l should be
s e t a c c o r d i n g l y (Koh vs. IAC, et al, G.R. No. 71388,
344

RULE 23

DEPOSITIONS PENDING ACTION

SEC. 1

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


remedied by t h e revised Rules.
6. It is t h e d u t y of each contending p a r t y to lay
before t h e c o u r t all t h e m a t e r i a l a n d r e l e v a n t facts
k n o w n to him, s u p p r e s s i n g or concealing nothing, nor
p r e v e n t i n g a n o t h e r party, by clever and adroit
m a n i p u l a t i o n of t h e t e c h n i c a l r u l e s of evidence, from
also p r e s e n t i n g all t h e facts within his knowledge.
Initially, t h a t d u t y to lay t h e facts before the court is
accomplished by t h e pleadings filed by the parties but only
in a g e n e r a l way as only u l t i m a t e facts are set forth in the
pleadings. A bill of p a r t i c u l a r s may be ordered by the
c o u r t on m o t i o n of a p a r t y b u t t h e office of a bill of
particulars is limited to making more particular or definite
the u l t i m a t e facts in a pleading, and not to supply
evidentiary m a t t e r s . These evidentiary m a t t e r s may be
inquired into a n d learned by t h e p a r t i e s before the trial
t h r o u g h t h e deposition-discovery mechanism in Rules 24
to 29.
U n f o r t u n a t e l y , i t a p p e a r s t h a t a m o n g far too
many lawyers (and not a few judges) t h e r e is, if not a
r e g r e t t a b l e u n f a m i l i a r i t y a n d even o u t r i g h t ignorance
about the nature, purposes and operations of the
modes of discovery, at least a strong yet unreasoned and
unreasonable disinclination to resort to t h e m - which is
a g r e a t pity for t h e intelligent and a d e q u a t e use of the
deposition-discovery mechanism, coupled with pre-trial
p r o c e d u r e , could effectively s h o r t e n t h e period of
l i t i g a t i o n a n d s p e e d up a d j u d i c a t i o n (Republic vs.
Sandiganbayan, et al, G.R. No. 90478, Nov. 21, 1991).
7. The o t h e r principal benefits desirable from t h e
availability a n d operation of a liberal discovery procedure
are: (1) it is of g r e a t assistance in ascertaining the t r u t h
and preventing perjury because the witness is examined
while his memory is still fresh, he is generally not coached,
he cannot at a l a t e r date contradict his deposition, and
345

RULE 23

REMEDIAL LAW COMPENDIUM

SEC. 2

his deposition is preserved in case he becomes unavailable;


(2) it is an effective m e a n s of d e t e c t i n g a n d exposing
fake, f r a u d u l e n t a n d s h a m claims a n d defenses; (3) it
m a k e s a v a i l a b l e i n a s i m p l e , c o n v e n i e n t a n d often
inexpensive way facts which otherwise could not have
been proved later; (4) it educates the p a r t i e s in advance
of t r i a l on t h e real values of their claims and defenses,
t h e r e b y e n c o u r a g i n g s e t t l e m e n t s o u t of c o u r t ; (5) it
expedites t h e disposal of litigations, saves t h e time of t h e
court and helps clear the dockets; (6) it safeguards against
surprise at t h e trial, prevents delays, simplifies the issues,
and thereby expedites t h e trial; and (7) it facilitates both
the p r e p a r a t i o n a n d t r i a l of cases (Fortune Corporation
vs. CA, et al., G.R. No. 108119, Jan. 19, 1994).
8. Sec. 1 of t h i s Rule p r o v i d e s t h a t a deposition
may be resorted to after jurisdiction h a s been obtained
over any defendant, not all defendants. Leave of court is
not necessary to t a k e a deposition after an a n s w e r to the
complaint h a s been filed, but such leave is required w h e r e
no a n s w e r h a s yet been filed (even if jurisdiction h a s been
obtained over any defendant), since before t h e filing of
t h e a n s w e r , l e a v e o f c o u r t m a y b e g r a n t e d b u t only
in e x c e p t i o n a l or u n u s u a l s i t u a t i o n s (Republic vs.
Sandiganbayan, et al., G.R. No. 112710, May 30, 2001).
S e c . 2.
Scope of examination. U n l e s s o t h e r w i s e
o r d e r e d b y t h e c o u r t a s p r o v i d e d b y s e c t i o n 16 o r
18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is
relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
k n o w l e d g e o f r e l e v a n t f a c t s . (2, R24)

346

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SECS. 3, 4

S e c . 3.
Examination and cross-examination.

Examination and cross-examination of deponents


m a y p r o c e e d a s p e r m i t t e d a t t h e trial u n d e r s e c t i o n s
3 to 18 of R u l e 132. (3a, R24)
NOTE
1. The officer before whom t h e deposition is t a k e n
does not have t h e power to rule upon objections to t h e
questions. He should merely have such objections noted
in the deposition (see Sec. 17).
S e c . 4. Use of depositions. At t h e t r i a l or u p o n
the h e a r i n g of a m o t i o n or an interlocutory
p r o c e e d i n g , a n y p a r t or all of a d e p o s i t i o n , so far
as admissible under the rules of evidence, may be
used against any party who was present or
represented at the taking of the deposition or who
had d u e notice thereof, in accordance with any one
of the following provisions:
(a) A n y d e p o s i t i o n m a y b e u s e d b y a n y p a r t y
for t h e p u r p o s e o f c o n t r a d i c t i n g o r i m p e a c h i n g t h e
testimony of d e p o n e n t as a witness;
(b) T h e d e p o s i t i o n of a p a r t y or of a n y o n e w h o
a t t h e t i m e o f t a k i n g t h e d e p o s i t i o n w a s a n officer,
director, or m a n a g i n g agent of a public or private
corporation, partnership, or association which is
a p a r t y m a y be u s e d by an a d v e r s e p a r t y for a n y
purpose;
(c) T h e d e p o s i t i o n of a w i t n e s s , w h e t h e r or n o t
a p a r t y , m a y be u s e d by a n y p a r t y for a n y p u r p o s e
i f t h e c o u r t finds: (1) t h a t t h e w i t n e s s i s d e a d ; o r
(2) t h a t t h e w i t n e s s r e s i d e s a t a d i s t a n c e m o r e t h a n
o n e h u n d r e d (100) k i l o m e t e r s from t h e p l a c e o f trial
or hearing, or is out of the Philippines, unless it
appears that his absence w a s procured by the party
o f f e r i n g t h e d e p o s i t i o n ; o r (3) t h a t t h e w i t n e s s ,
347

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SEC. 4

is unable to attend or testify because of age,


s i c k n e s s , i n f i r m i t y , o r i m p r i s o n m e n t ; o r (4) t h a t t h e
party offering the deposition has been unable to
procure the attendance of the witness by subpoena;
o r (5) u p o n a p p l i c a t i o n a n d n o t i c e , t h a t s u c h
exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the
testimony of witnesses orally in open court, to
allow the deposition to be used; and
(d) If o n l y p a r t of a d e p o s i t i o n is o f f e r e d in
e v i d e n c e by a party, the adverse party may require
h i m t o i n t r o d u c e all o f i t w h i c h i s r e l e v a n t t o t h e
part introduced, and any party may introduce any
o t h e r p a r t s . (4a, R24)
NOTES
1. W h e r e t h e w i t n e s s is a v a i l a b l e to testify a n d
t h e s i t u a t i o n is not one of those excepted u n d e r Sec. 4 of
t h i s Rule, his deposition theretofore t a k e n is inadmissible
in evidence a n d he s h o u l d in lieu t h e r e o f be m a d e to
testify (Vda. de Sy-Quia vs. CA, et al., G.R. No. 62283,
Nov. 25, 1983).
2. A d e p o s i t i o n m a y be u s e d for i m p e a c h i n g or
contradicting any witness, b u t it can be used as evidence
b y a p a r t y ("for a n y p u r p o s e " ) u n d e r t h e s p e c i f i c
conditions set out in Sec. 4. If t h e deposition is t h a t of a
p a r t y or of an employee of a corporation which is a party,
it can be used by t h e adverse p a r t y for i m p e a c h m e n t of
t h e d e p o n e n t or as direct evidence of his case, w h e t h e r
t h e d e p o n e n t i s a v a i l a b l e o r not; b u t s a i d d e p o s i t i o n
cannot be used by t h e d e p o n e n t - p a r t y as evidence of his
case, unless he or t h e corporate employee cannot testify
for any reason s t a t e d in P a r . (c). If t h e d e p o n e n t is only
a witness and is available at the trial, his deposition cannot
be used as evidence b u t may be used only to impeach him.
348

RULE 23

DEPOSITIONS PENDING ACTION

SEC. 5

If t h e deponent-witness is not available u n d e r any of t h e


circumstances in P a r . (c), t h e n his deposition can be used
as direct evidence.
3 . U n d e r t h e f o r m e r S e c . 4(c)(2), t h e d i s t a n c e
provided was more t h a n 50 kilometers from the residence
of t h e d e p o n e n t to t h e place of t r i a l or hearing. It h a s
now been increased to more t h a n 100 kilometers, as in
the a m e n d m e n t to t h e rule on subpoenas and for t h e same
reason (see Sec. 10, Rule 21).
4. D e p o s i t i o n s a r e chiefly a mode of d i s c o v e r y .
They a r e i n t e n d e d as a m e a n s to compel disclosure of facts
r e s t i n g in t h e knowledge of a p a r t y or other persons which
are r e l e v a n t in a suit or proceeding in court. Depositions
and t h e o t h e r modes of discovery are m e a n t to enable a
p a r t y to l e a r n all t h e m a t e r i a l and relevant facts, not only
known to him a n d his witnesses but also those known to
the a d v e r s e p a r t y a n d t h e l a t t e r ' s own witnesses.
Depositions a r e not generally m e a n t to be a substitute
for t h e actual testimony in open court of a party or witness.
The d e p o n e n t m u s t , as a r u l e , be p r e s e n t e d for o r a l
examination in open court at the trial. Indeed, any
deposition offered to prove t h e facts t h e r e i n at the t r i a l of
the case, in lieu of t h e a c t u a l testimony of the deponent in
court, may be opposed a n d excluded for being hearsay,
except in those specific instances authorized by the Rules
u n d e r p a r t i c u l a r c o n d i t i o n s a n d for c e r t a i n l i m i t e d
purposes (Dasmarinas Garments, Inc. vs. Reyes, etc., et
al., G.R. No. 108229, Aug. 24, 1993).
S e c . 5.
Effect of substitution of parties. S u b s t i tution of p a r t i e s d o e s not affect the right to use
depositions previously taken; and, w h e n an action
has been dismissed and another action involving
the same subject is afterward brought b e t w e e n the
same parties or their representatives or successors
i n i n t e r e s t , all d e p o s i t i o n s l a w f u l l y t a k e n a n d d u l y
349

RULE 23

REMEDIAL LAW COMPENDIUM

SECS. 6-9

filed i n t h e f o r m e r a c t i o n m a y b e u s e d i n t h e l a t t e r
a s i f o r i g i n a l l y t a k e n t h e r e f o r . (6, R24)
S e c . 6.
Objections to admissibility. S u b j e c t to
the provisions of section 29 of this Rule, objection
may be made at the trial or h e a r i n g to receiving in
e v i d e n c e a n y d e p o s i t i o n o r p a r t t h e r e o f for a n y
reason which would require the exclusion of
the e v i d e n c e if the witness were then present and
t e s t i f y i n g . (6, R24)
S e c . 7.
Effect of taking depositions. A p a r t y
shall not be d e e m e d to make a person his own
w i t n e s s for a n y p u r p o s e b y t a k i n g h i s d e p o s i t i o n .
(7, R24)
S e c . 8.
Effect of using depositions. T h e i n t r o duction in evidence of the deposition or any
p a r t t h e r e o f for a n y p u r p o s e o t h e r t h a n t h a t o f
contradicting or impeaching the deponent makes
the deponent the witness of the party introducing
the deposition, but this shall not apply to the use
by an adverse party of a deposition as described in
p a r a g r a p h (b) of s e c t i o n 4 of t h i s R u l e . (8, R24)
S e c . 9.
Rebutting deposition. At t h e t r i a l or
hearing, any party may rebut any relevant evidence
c o n t a i n e d in a deposition w h e t h e r introduced by
h i m o r b y a n y o t h e r p a r t y . (9, R24)
NOTE
1. The introduction of t h e deposition binds t h e p a r t y
who introduces it, since he thereby m a k e s t h e deponent
his witness, except (a) if it is introduced to impeach or
contradict t h e witness, or (b) if it is t h e deposition of an
opposing p a r t y .

350

RULE 23

DEPOSITIONS PENDING ACTION SECS. 10-11, 12

S e c . 10. Persons before whom deposition may be


taken within the Philippines. - W i t h i n t h e P h i l i p pines, depositions may be taken before any
judge, notary public, or the person referred to in
s e c t i o n 14 hereof. (10a, R24)
S e c . 11.
Persons before whom depositions may
be taken in foreign countries. In a f o r e i g n s t a t e or
c o u n t r y , d e p o s i t i o n s m a y b e t a k e n (a) o n n o t i c e
before a s e c r e t a r y of e m b a s s y or legation,
consul general, consul, vice-consul, or consular
a g e n t o f t h e R e p u b l i c o f t h e P h i l i p p i n e s ; (b) b e f o r e
such person or officer as may be appointed by
c o m m i s s i o n o r u n d e r l e t t e r s r o g a t o r y ; o r (c) t h e
p e r s o n r e f e r r e d to in s e c t i o n 14 hereof. (11a, R24)
NOTE
1. These two sections have been amended to include,
among t h e persons before whom depositions may be taken,
any person authorized to a d m i n i s t e r o a t h s and chosen or
stipulated upon in writing by t h e parties.
S e c . 12.
Commission or letters rogatory. A
commission or letters rogatory shall be issued only
w h e n necessary or convenient, on application and
notice, and on such terms and with such direction
as are just and appropriate. Officers may be
designated in notices or commissions either by
name or descriptive title and letters rogatory may
be addressed to the appropriate judicial authority
in t h e f o r e i g n c o u n t r y . (12a, R24)
NOTES
1. A commission is addressed to any a u t h o r i t y in
a f o r e i g n c o u n t r y a u t h o r i z e d t h e r e i n t o t a k e down
depositions and t h e t a k i n g of such deposition is subject to
351

RULE 23

REMEDIAL LAW COMPENDIUM

SECS. 13-14

the rules laid down by the court issuing t h e commission.


L e t t e r s rogatory are addressed to a judicial a u t h o r i t y in
t h e foreign c o u n t r y a n d t h e t a k i n g of such deposition
is subject to t h e rules laid down by such foreign judicial
authority (see The Signe, D.C. La., 37F. Supp. 819, 820).
L e t t e r s rogatory are generally resorted to when t h e r e is
difficulty or impossibility of obtaining t h e deposition by
commission (18 C.J. 653).
2. A commission may be defined as an i n s t r u m e n t
issued by a court of justice, or other competent tribunal,
to authorize a person to t a k e depositions or do any other
act by a u t h o r i t y of such court or t r i b u n a l . Letters
rogatory, on t h e other hand, are defined as i n s t r u m e n t s
s e n t in t h e n a m e and by a u t h o r i t y of a judge or court to
a n o t h e r , r e q u e s t i n g t h e l a t t e r to cause to be examined,
upon i n t e r r o g a t o r i e s filed in a cause pending before t h e
former, a witness who is within the jurisdiction of the judge
or court to whom such l e t t e r s a r e a d d r e s s e d . U n d e r our
Rules, a commission is a d d r e s s e d to officers designated
e i t h e r by n a m e or descriptive title, while l e t t e r s rogatory
a r e a d d r e s s e d to some a p p r o p r i a t e judicial a u t h o r i t y in
t h e foreign s t a t e . L e t t e r s rogatory may be applied for and
issued only after a commission h a s been r e t u r n e d
u n e x e c u t e d (Dasmarinas Garments, Inc. vs. Reyes, etc.,
et al., supra).
S e c . 13.
Disqualification
by
interest.

No
d e p o s i t i o n s h a l l be t a k e n b e f o r e a p e r s o n w h o is a
relative within the sixth degree of consanguinity
or affinity, or e m p l o y e e or counsel of any of the
parties; or w h o is a relative within the same degree,
or employee of such counsel, or w h o is financially
i n t e r e s t e d i n t h e a c t i o n . (13a, R24)
S e c . 14.
Stipulations regarding taking of depositions. I f t h e p a r t i e s s o s t i p u l a t e i n w r i t i n g ,
d e p o s i t i o n s may be t a k e n before any p e r s o n autho352

RULE 23

DEPOSITIONS PENDING ACTION

SECS. 15-16

rized to administer oaths, at any time or place, in


accordance with these Rules, and when so taken
m a y b e u s e d l i k e o t h e r d e p o s i t i o n s . (14a, R24)
NOTE
1. As earlier explained, t h e p a r t i e s may stipulate in
writing for t h e t a k i n g of depositions before any person
authorized to a d m i n i s t e r oaths, w h e t h e r the deposition is
to be t a k e n in the Philippines or in a foreign country. While
an equivalent of Sec. 14 was also provided in the former
Rules, it was stated therein t h a t the deposition before such
person may be t a k e n "upon any notice, and in any
manner." As a p r u d e n t course of action, t h a t p h r a s e has
been r e p l a c e d b y a n a m e n d m e n t r e q u i r i n g t h a t s a i d
depositions be t a k e n in accordance with these Rules.
S e c . 16. Deposition upon oral examination; notice;
time and place. A p a r t y d e s i r i n g to t a k e t h e d e p o sition of any person upon oral examination shall
give reasonable notice in writing to every other
party to the action. The notice shall state the time
a n d p l a c e for t a k i n g t h e d e p o s i t i o n a n d t h e n a m e
and address of each person to be examined, if
known, and if the name is not known, a general
description sufficient to identify him or the particular c l a s s o r g r o u p t o w h i c h h e b e l o n g s . O n m o t i o n
of any party upon w h o m the notice is served, the
c o u r t m a y for c a u s e s h o w n e n l a r g e o r s h o r t e n t h e
t i m e . (15, R24).
S e c . 16.
Orders for the protection of parties and
deponents. A f t e r n o t i c e is s e r v e d for t a k i n g a
deposition by oral examination, upon motion
seasonably made by any party or by the person to
b e e x a m i n e d a n d for g o o d c a u s e s h o w n , t h e c o u r t
in which the action is pending may make an
order that the deposition shall not be taken, or that
353

RULE 23

REMEDIAL LAW COMPENDIUM

SEC. 17

it may be taken only at some designated place other


than that stated in the notice, or that it may be
taken only on written interrogatories, or that
certain matters shall not be inquired into, or that
the scope of the examination shall be held with no
one present except the parties to the action and
their officers or counsel, or that after b e i n g sealed
the deposition shall be opened only by order of the
court, or that secret processes, developments, or
research need not be disclosed, or that the parties
s h a l l s i m u l t a n e o u s l y file s p e c i f i e d d o c u m e n t s o r
information enclosed in sealed envelopes to be
o p e n e d as directed by the court; or the court may
make any other order which justice requires to
protect the party or witness from annoyance,
e m b a r r a s s m e n t , o r o p p r e s s i o n . (16a, R24)
S e c . 17.
Record of examination; oath; objections.
T h e officer before w h o m t h e d e p o s i t i o n i s t o b e t a k e n
shall put the witness on oath and shall personally,
or by someone acting under his direction and in
his presence, record the testimony of the witness.
The testimony shall be taken stenographically
u n l e s s t h e p a r t i e s a g r e e o t h e r w i s e . All o b j e c t i o n s
made at the time of the examination to the
q u a l i f i c a t i o n s o f t h e officer t a k i n g t h e d e p o s i t i o n ,
o r t o t h e m a n n e r o f t a k i n g it, o r t o t h e e v i d e n c e
presented, or to the conduct of any party, and any
other objection to the proceedings, shall be noted
by the officer upon the deposition.
Evidence
objected to shall be taken subject to the objections.
In lieu of participating in the oral examination,
parties served with notice of taking a deposition
may transmit written interrogatories to the
officers, w h o shall propound t h e m to the w i t n e s s
a n d r e c o r d t h e a n s w e r s verbatim. (17, R24)

354

RULE 23

DEPOSITIONS PENDING ACTION

SECS. 18-19

S e c . 18.
Motion to terminate or limit examination.
At any time during the taking of the deposition,
on motion or petition of any party or of the
deponent and upon a showing that the examination is b e i n g c o n d u c t e d in bad faith or in s u c h
manner as unreasonably to annoy, embarrass, or
oppress the d e p o n e n t or party, the court in w h i c h
t h e a c t i o n i s p e n d i n g o r t h e R e g i o n a l Trial C o u r t
of the place where the deposition is being taken may
order the officer c o n d u c t i n g the e x a m i n a t i o n to
cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon demand of the objecting party or deponent, the
t a k i n g o f t h e d e p o s i t i o n s h a l l b e s u s p e n d e d for t h e
t i m e n e c e s s a r y to m a k e a n o t i c e for an o r d e r . In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
c o u r t m a y d e e m r e a s o n a b l e . (18a, R24)
S e c . 19.
Submission to witness; changes; signing.
When the t e s t i m o n y is fully transcribed, the
d e p o s i t i o n s h a l l b e s u b m i t t e d t o t h e w i t n e s s for
examination and shall be read to or by him, unless
such examination and reading are waived by the
witness and by the parties.
A n y c h a n g e s i n form
or substance which the witness desires to make
s h a l l b e e n t e r e d u p o n t h e d e p o s i t i o n b y t h e officer
with a s t a t e m e n t of the reasons given by the
w i t n e s s for m a k i n g t h e m . T h e d e p o s i t i o n s h a l l
then be signed by the witness, unless the parties
by stipulation waive the signing or the witness
is ill or c a n n o t be f o u n d or r e f u s e s to s i g n . If t h e

355

RULE 23

REMEDIAL LAW COMPENDIUM

SECS. 20-23

d e p o s i t i o n i s n o t s i g n e d b y t h e w i t n e s s , t h e officer
s h a l l s i g n i t a n d s t a t e o n t h e r e c o r d t h e fact o f t h e
waiver or of the illness or absence of the witness or
the fact of t h e refusal to sign t o g e t h e r w i t h the
reason given therefor, if any, and the deposition
m a y t h e n b e u s e d a s fully a s t h o u g h s i g n e d , u n l e s s
o n a m o t i o n t o s u p p r e s s u n d e r s e c t i o n 2 9 (f) o f t h i s
R u l e , t h e c o u r t h o l d s t h a t t h e r e a s o n s g i v e n for
the refusal to sign require rejection of the deposit i o n i n w h o l e o r i n part. (19a, R24)
S e c . 20. Certification and filing by officer. T h e
officer shall certify on the d e p o s i t i o n that the
witness was duly sworn to by him and that the
deposition is a true record of the t e s t i m o n y given
by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of
the action and marked "Deposition of (here insert
t h e n a m e o f w i t n e s s ) " a n d s h a l l p r o m p t l y file i t w i t h
the court in which the action is pending or send it
b y r e g i s t e r e d m a i l t o t h e c l e r k t h e r e o f for filing. (20,
R24)
S e c . 21. Notice of filing. T h e o f f i c e r t a k i n g t h e
d e p o s i t i o n shall give prompt notice of its filing to
all t h e p a r t i e s . (21, R24)
S e c . 22. Furnishing copies. U p o n p a y m e n t of
reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
t h e d e p o n e n t . (22, R24)
S e c . 23.
Failure to attend of party giving notice.
If the party giving the notice of the t a k i n g of a deposition fails to attend and proceed t h e r e w i t h and
another attends in person or by counsel pursuant
to the notice, the court may order the party giving
356

RULE 23

DEPOSITIONS PENDING ACTION

SECS. 24-26

the notice to pay such other party the amount of


the reasonable e x p e n s e s incurred by him and his
counsel in so attending, including reasonable
a t t o r n e y ' s f e e s . (23a, R24)
S e c . 24. Failure of party giving notice to serve subpoena. If t h e p a r t y g i v i n g t h e n o t i c e of t h e t a k i n g
of a d e p o s i t i o n of a w i t n e s s fails to s e r v e a s u b p o e n a
u p o n h i m a n d t h e w i t n e s s b e c a u s e o f s u c h failure
does not attend, and if another party attends in
person or by counsel because he expects the deposition of that witness to be taken, the court may
order the party giving the notice to pay such other
party the amount of the reasonable expenses
incurred by him and his counsel in so attending,
i n c l u d i n g r e a s o n a b l e a t t o r n e y ' s fees. (24a, R24)
S e c . 25.
Deposition upon written interrogatories;
service of notice and of interrogatories. A p a r t y
desiring to take the deposition of any person upon
written interrogatories shall serve them upon
every other party with a notice stating the name
and address of the person who is to answer t h e m
and the name or descriptive title and address of the
officer b e f o r e w h o m t h e d e p o s i t i o n i s t o b e t a k e n .
W i t h i n t e n (10) d a y s t h e r e a f t e r , a p a r t y so s e r v e d
may serve cross-interrogatories upon the party
p r o p o s i n g t o t a k e t h e d e p o s i t i o n . W i t h i n five (5)
days thereafter, the latter may serve re-direct
interrogatories upon a party who has served
cross-interrogatories.
W i t h i n t h r e e (3) d a y s after
being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the
party p r o p o s i n g t o t a k e t h e d e p o s i t i o n . (26, R24)
S e c . 26.
Officers to take responses and prepare
record. A c o p y of t h e n o t i c e a n d c o p i e s of a l l
357

RULE 23

REMEDIAL LAW COMPENDIUM

SECS. 27-29

interrogatories served shall be delivered by


the party taking the deposition to the officer
designated in the notice, who shall proceed
p r o m p t l y , i n t h e m a n n e r p r o v i d e d b y s e c t i o n s 17,
19 and 20 of this Rule, to take the testimony of the
witness in response to the interrogatories and to
p r e p a r e , c e r t i f y , a n d file o r m a i l t h e d e p o s i t i o n ,
attaching thereto the copy of the notice and the
i n t e r r o g a t o r i e s r e c e i v e d b y h i m . (26, R24)
S e c . 27.
Notice of filing and furnishing copies.
W h e n a d e p o s i t i o n u p o n i n t e r r o g a t o r i e s i s filed, t h e
officer t a k i n g i t s h a l l p r o m p t l y g i v e n o t i c e t h e r e o f
t o all t h e p a r t i e s , a n d m a y f u r n i s h c o p i e s t o t h e m
or to the deponent upon payment of reasonable
c h a r g e s t h e r e f o r . (27, R24)
S e c . 28.
Orders for the protection of parties and
deponents. After t h e s e r v i c e of t h e i n t e r r o g a t o r i e s
and prior to the taking of the testimony of the
deponent, the court in which the action is
p e n d i n g , on m o t i o n p r o m p t l y m a d e by a p a r t y or a
d e p o n e n t , a n d for g o o d c a u s e s h o w n , m a y m a k e a n y
o r d e r s p e c i f i e d i n s e c t i o n s 15, 1 6 a n d 1 8 o f t h i s
Rule w h i c h is appropriate and just or an order that
t h e d e p o s i t i o n s h a l l n o t b e t a k e n b e f o r e t h e officer
designated in the notice or that it shall not be taken
e x c e p t u p o n o r a l e x a m i n a t i o n . (28a, R24)
S e c . 29.
depositions.

Effect

of

errors

and

irregularities

in

(a) As to notice. All e r r o r s a n d i r r e g u l a r i t i e s


i n t h e n o t i c e for t a k i n g a d e p o s i t i o n a r e w a i v e d
unless written objection is promptly served upon
the party giving the notice.

358

RULE 23

DEPOSITIONS PENDING ACTION

SEC. 29

(b) As to disqualification of officer. O b j e c t i o n


to taking a deposition because of disqualification
o f t h e officer before w h o m i t i s t o b e t a k e n i s w a i v e d
unless made before the taking of the deposition
begins or as soon thereafter as the disqualification
becomes known or could be discovered with
reasonable diligence.
(c) As to competency or relevancy of evidence.
Objections to the competency of a w i t n e s s or the
competency, relevancy, or materiality of testimony
are n o t w a i v e d b y f a i l u r e t o m a k e t h e m before o r
during the taking of the deposition, unless the
ground of the objection is one which might have
been obviated or removed if presented at that time.
(d) As to oral examination and other particulars.
Errors and irregularities occurring at the
oral e x a m i n a t i o n in the manner of taking the
d e p o s i t i o n , i n t h e form o f t h e q u e s t i o n s o r a n s w e r s ,
in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be
obviated, removed, or cured if promptly prosecuted,
are w a i v e d u n l e s s r e a s o n a b l e o b j e c t i o n t h e r e t o i s
made at the taking of the deposition.
(e) As to form of written interrogatories.
Objections to the form of written interrogatories
submitted under sections 26 and 26 of this Rule
are w a i v e d u n l e s s s e r v e d i n w r i t i n g u p o n t h e p a r t y
p r o p o u n d i n g t h e m w i t h i n t h e t i m e a l l o w e d for
serving succeeding cross or other interrogatories
a n d w i t h i n t h r e e (3) d a y s after s e r v i c e o f t h e l a s t
interrogatories authorized.
(f) As to manner of preparation. E r r o r s a n d
irregularities in the manner in which the testimony
is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or
o t h e r w i s e d e a l t w i t h b y t h e officer u n d e r s e c t i o n s
359

RULE 24

REMEDIAL LAW COMPENDIUM

SEC. 29

17, 19, 20 to 26 of t h i s R u l e a r e w a i v e d u n l e s s a m o tion to suppress the deposition or some part thereof


is made with reasonable p r o m p t n e s s after such
defect is, or w i t h due diligence might have been, asc e r t a i n e d . (29a, R24)

360

RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
S e c t i o n 1. Depositions before action; petition. A
person who desires to perpetuate his own testimony
or that of another person regarding any matter that
may be cognizable in any court of the Philippines,
m a y file a v e r i f i e d p e t i t i o n i n t h e c o u r t o f t h e p l a c e
of the residence of any expected adverse party,
( l a , R134)
S e c . 2.
Contents of petition. T h e p e t i t i o n s h a l l
be entitled in the name of the petitioner and
s h a l l s h o w : (a) t h a t t h e p e t i t i o n e r e x p e c t s t o b e a
party to an action in a court of the Philippines but
is presently unable to bring it or cause it to be
b r o u g h t ; (b) t h e s u b j e c t m a t t e r o f t h e e x p e c t e d
a c t i o n a n d h i s i n t e r e s t t h e r e i n ; (c) t h e f a c t s w h i c h
he desires to establish by the proposed testimony
a n d h i s r e a s o n s for d e s i r i n g t o p e r p e t u a t e it;
(d) t h e n a m e s o r a d e s c r i p t i o n o f t h e p e r s o n s h e
e x p e c t s will b e a d v e r s e p a r t i e s a n d t h e i r a d d r e s s e s
s o f a r a s k n o w n ; a n d (e) t h e n a m e s a n d a d d r e s s e s o f
the persons to be examined and the substance of
the testimony which he expects to elicit from
e a c h , a n d s h a l l a s k for a n o r d e r a u t h o r i z i n g t h e p e titioner to take the depositions of the persons to be
e x a m i n e d n a m e d i n t h e p e t i t i o n for t h e p u r p o s e o f
p e r p e t u a t i n g t h e i r t e s t i m o n y . (2, R134)
S e c . 3. Notice and service. T h e p e t i t i o n e r s h a l l
serve a notice upon each person named in the
petition as an expected adverse party, together with
a copy of t h e petition, stating t h a t the petitioner
will a p p l y t o t h e c o u r t , a t a t i m e a n d p l a c e n a m e d
361

RULE 24

REMEDIAL LAW COMPENDIUM

SECS. 4-7

t h e r e i n , for t h e o r d e r d e s c r i b e d i n t h e p e t i t i o n .
A t l e a s t t w e n t y (20) d a y s b e f o r e t h e d a t e o f t h e
hearing, the court shall cause notice thereof to
be served on the parties and prospective deponents
i n t h e m a n n e r p r o v i d e d for s e r v i c e o f s u m m o n s .
(3a, R134)
S e c . 4.
Order and examination. If t h e c o u r t is
satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall m a k e
an order designating or describing the persons
whose deposition may be taken and specifying the
subject matter of the examination, and whether the
d e p o s i t i o n s shall be t a k e n u p o n oral e x a m i n a t i o n
or written interrogatories. The depositions may
then be taken in accordance with Rule 23 before
t h e h e a r i n g . (4a, R134)
S e c . 5. Reference to court. F o r t h e p u r p o s e of
a p p l y i n g R u l e 2 3 t o d e p o s i t i o n s for p e r p e t u a t i n g
testimony, each reference therein to the court in
which the action is pending shall be deemed to
r e f e r t o t h e c o u r t i n w h i c h t h e p e t i t i o n for s u c h
d e p o s i t i o n w a s filed. (5a, R134)
S e c . 6.
Use of deposition. If a d e p o s i t i o n to perp e t u a t e t e s t i m o n y i s t a k e n u n d e r t h i s R u l e , o r if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought in
a c c o r d a n c e w i t h the p r o v i s i o n s of s e c t i o n s 4 and 5
of R u l e 23. (6a, R134)
S e c . 7.
Depositions pending appeal. If an
a p p e a l h a s b e e n t a k e n f r o m a j u d g m e n t of a c o u r t ,
including the Court of Appeals in proper cases, or
before the taking of depositions of w i t n e s s e s to
362

RULE 24

DEPOSITIONS BEFORE ACTION


OR PENDING APPEAL

SECS. 1-7

p e r p e t u a t e t h e i r t e s t i m o n y for u s e i n t h e e v e n t o f
further p r o c e e d i n g s i n t h e said c o u r t . I n s u c h c a s e
the party who desires to perpetuate the testimony
m a y m a k e a m o t i o n in t h e s a i d c o u r t for l e a v e to
take the depositions, upon the same notice and
service thereof as if the action was pending therein.
The m o t i o n s h a l l s t a t e (a) t h e n a m e s a n d a d d r e s s e s
of the persons to be examined and the substance
of the t e s t i m o n y w h i c h he expects to elicit from
e a c h ; a n d (b) t h e r e a s o n for p e r p e t u a t i n g t h e i r
testimony. If the court finds that the perpetuation
of the t e s t i m o n y is proper to avoid a failure or
delay of justice, it may make an order allowing
the depositions to be taken, and thereupon the
depositions may be taken and used in the same
manner and under the same conditions as are
p r e s c r i b e d i n t h e s e R u l e s for d e p o s i t i o n s t a k e n i n
p e n d i n g a c t i o n s . (7a, R134)
NOTES
1. This was formerly Rule 134 and has been t r a n s posed here. As distinguished from depositions de bene esse
which are governed by Rule 23, this Rule regulates the
taking of depositions in perpetuam rei memoriam, the purpose of which is to p e r p e t u a t e the testimony of witnesses
for probable use in a future case or in the event of further
proceedings in t h e same case. For other ways of perpetuating testimony in criminal cases, see Sees. 12, 13 and 15
of Rule 119 and the notes t h e r e u n d e r .
2. Sec. 1 is t h e procedure for perpetuating testimony
of witnesses prior to the filing of the case and in anticipation thereof. Sec. 7 is t h e procedure in p e r p e t u a t i n g
testimony after j u d g m e n t in the Regional Trial Court and
before it has become executory or during t h e pendency
of an appeal therefrom.

363

RULE 24

REMEDIAL LAW COMPENDIUM

SECS. 1-7

3. It is submitted t h a t Sec. 1 may not be availed of


in criminal cases, but the procedure in Sec. 7 is available
in all actions, including criminal cases.
4. Although t h e r e is no local j u r i s p r u d e n c e on the
m a t t e r , it is also submitted t h a t depositions in perpetuam
rei memoriam u n d e r this Rule, j u s t like any other depositions, are t a k e n conditionally and to be used at the trial
or proceeding only in case t h e deponent is not available.
This view a p p e a r s to be s u s t a i n e d by t h e fact t h a t u n d e r
S e c . 6 of t h i s R u l e , d e p o s i t i o n s in perpetuam rei
memoriam may be used in t h e action in accordance with
t h e provisions of Sees. 4 and 5 of Rule 23 which provide,
inter alia, for s i t u a t i o n s w h e r e i n t h e d e p o n e n t c a n n o t
testify as a w i t n e s s d u r i n g t h e trial.
5. Depositions t a k e n u n d e r this Rule do not prove
the existence of any right and the testimony therein
p e r p e t u a t e d is not in itself conclusive proof, e i t h e r of t h e
existence of any r i g h t nor even of t h e facts to which they
relate, as it can be controverted at t h e t r i a l in t h e same
m a n n e r as t h o u g h no p e r p e t u a t i o n of testimony w a s ever
had (Alonso, et al. vs. Lagdqmeo, 7 Phil. 75). However,
in t h e absence of any objection to t h e t a k i n g thereof and
even if t h e d e p o n e n t did not testify at t h e h e a r i n g of t h e
case, t h e p e r p e t u a t e d testimony c o n s t i t u t e s prima facie
proof of t h e facts referred to in his deposition (Rey vs.
Morales, 35 Phil. 230).

364

RULE 25
INTERROGATORIES TO PARTIES
S e c t i o n 1. Interrogatories to parties; service thereof.
U n d e r t h e s a m e c o n d i t i o n s s p e c i f i e d in s e c t i o n 1
o f R u l e 23, a n y p a r t y d e s i r i n g t o e l i c i t m a t e r i a l a n d
r e l e v a n t f a c t s f r o m a n y a d v e r s e p a r t i e s s h a l l file
and serve upon the latter written interrogatories
t o b e a n s w e r e d b y t h e p a r t y s e r v e d or, i f t h e p a r t y
s e r v e d is a p u b l i c or p r i v a t e c o r p o r a t i o n or a
p a r t n e r s h i p o r a s s o c i a t i o n , b y a n y officer t h e r e o f
c o m p e t e n t t o t e s t i f y i n i t s behalf, ( l a )
S e c . 2.
Answer to interrogatories. T h e i n t e r r o g a t o r i e s s h a l l b e a n s w e r e d fully i n w r i t i n g a n d
shall be signed and sworn to by the person making
them. The party upon w h o m the interrogatories
h a v e b e e n s e r v e d s h a l l file a n d s e r v e a c o p y o f t h e
answers on the party submitting the interrogator i e s w i t h i n f i f t e e n (15) d a y s after s e r v i c e thereof,
u n l e s s t h e c o u r t , o n m o t i o n a n d for g o o d c a u s e
s h o w n , e x t e n d s o r s h o r t e n s t h e t i m e . (2a)
S e c . 3.
Objections to interrogatories. O b j e c t i o n s
to any interrogatories may be presented to the
c o u r t w i t h i n t e n (10) d a y s after s e r v i c e thereof, w i t h
n o t i c e as in c a s e of a m o t i o n ; a n d a n s w e r s s h a l l be
d e f e r r e d u n t i l t h e o b j e c t i o n s are r e s o l v e d , w h i c h
s h a l l be at as e a r l y a t i m e as is p r a c t i c a b l e . (3a)
S e c . 4.
Number of interrogatories. No p a r t y
may, w i t h o u t l e a v e o f c o u r t , s e r v e m o r e t h a n o n e
set of interrogatories to be answered by the same
party. (4)

365

RULE 25

REMEDIAL LAW COMPENDIUM

SEC. 5

S e c . 6.
Scope and use of interrogatories. I n t e r rogatories may relate to any matters that can be
i n q u i r e d i n t o u n d e r s e c t i o n 2 o f R u l e 23, a n d t h e
a n s w e r s m a y b e u s e d for t h e s a m e p u r p o s e s p r o v i d e d i n s e c t i o n 4 o f t h e s a m e R u l e . (5a)
NOTES
1. J u s t like depositions, a p a r t y may serve w r i t t e n
i n t e r r o g a t o r i e s to t h e o t h e r p a r t y w i t h o u t leave of court
only after a n s w e r h a s been served. Before t h a t , leave of
court m u s t be obtained. U n d e r t h e s a m e considerations,
i n t e r r o g a t o r i e s may embrace any r e l e v a n t m a t t e r unless
t h e s a m e is (a) privileged or (b) prohibited by court order.
2. A j u d g m e n t by default may be r e n d e r e d a g a i n s t
a p a r t y who fails to serve his a n s w e r to w r i t t e n
i n t e r r o g a t o r i e s (Cason vs. San Pedro, L-18928, Dec. 28,
1962; see Sec. 3[c], Rule 29).
3. After s e r v i c e of t h e a n s w e r , l e a v e of c o u r t is
not required for t h e service of w r i t t e n interrogatories upon
a party
(Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
4. The liberty of a p a r t y to m a k e discovery is wellnigh unrestricted if the m a t t e r s inquired into are
otherwise r e l e v a n t a n d not privileged, a n d t h e inquiry is
m a d e in good faith a n d within t h e bounds of law. In light
of t h e general philosophy of full discovery of relevant facts,
it is fairly r a r e t h a t it will be ordered t h a t a deposition
should not be t a k e n at all. It is only upon notice a n d good
cause shown t h a t t h e court may order t h a t a deposition
s h a l l n o t be t a k e n . Good c a u s e m e a n s a s u b s t a n t i a l
r e a s o n one t h a t affords a legal excuse. The m a t t e r of
good cause is to be d e t e r m i n e d by t h e court.
The fact t h a t a p a r t y had previously availed of a mode
of discovery, which is by w r i t t e n interrogatories, cannot
be considered as good cause to p r e v e n t his r e s o r t to a
366

RULE 25

INTERROGATORIES TO PARTIES

SEC. 6

deposition on oral examination because: (a) the fact t h a t


information similar to t h a t sought had been obtained by
a n s w e r s to interrogatories does not b a r an examination
before trial, and is not a valid objection to the t a k i n g of a
deposition in good faith, t h e r e being no duplication; and
(b) knowledge by t h e petitioner of the facts concerning
which t h e proposed deponent is to be examined does not
justify refusal of such examination. The various modes
of discovery u n d e r t h e Rules are clearly intended to be
c u m u l a t i v e , a n d not a l t e r n a t i v e or m u t u a l l y exclusive
(Fortune Corporation us. CA, et al., G.R. No. 108119,
Jan. 19, 1994).
S e c . 6.
Effect of failure to serue written interrogatories. U n l e s s t h e r e a f t e r a l l o w e d b y t h e c o u r t
for g o o d c a u s e s h o w n a n d t o p r e v e n t a f a i l u r e o f
justice, a party not served with written interrogatories may not be compelled by the adverse party
to give t e s t i m o n y in o p e n court, or to give a
d e p o s i t i o n p e n d i n g a p p e a l , (n)
NOTE
1. To u n d e r s c o r e t h e i m p o r t a n c e a n d significant
benefits of discovery procedures in t h e adjudication of
cases, this new provision encourages the use of w r i t t e n
interrogatories by imposing prejudicial consequences on
the p a r t y who fails or refuses to avail himself of w r i t t e n
interrogatories without good cause. A similar provision
h a s b e e n i n c o r p o r a t e d in t h e succeeding Rule 26 for
non-availment of requests for admission by the opposing
p a r t y . These two provisions are directed to t h e p a r t y
who fails or refuses to resort to the discovery procedures
therein, and should not be confused with the provisions
o f R u l e 2 9 w h i c h p r o v i d e s for s a n c t i o n s o r o t h e r
consequences upon a party who refuses or fails to comply
with d i s c o v e r y p r o c e d u r e s d u l y a v a i l e d of by h i s
opponent.
367

RULE 25

REMEDIAL LAW COMPENDIUM

SEC. 6

W h e r e a p a r t y unjustifiedly refuses to elicit facts


m a t e r i a l and r e l e v a n t to his case by addressing w r i t t e n
interrogatories to t h e adverse p a r t y to elicit those facts,
the latter may not thereafter be compelled to testify thereon
in court or give a deposition pending appeal. The justification for t h i s is t h a t t h e p a r t y in need of said facts having foregone t h e opportunity to inquire into t h e same from
t h e o t h e r p a r t y t h r o u g h m e a n s available to him, he should
not t h e r e a f t e r be p e r m i t t e d to unduly b u r d e n t h e l a t t e r
w i t h courtroom a p p e a r a n c e s or o t h e r c u m b e r s o m e processes. The sanction adopted by t h e Rules is not one of
compulsion in t h e sense t h a t t h e p a r t y is being directly
compelled to avail of t h e discovery mechanics, b u t one of
negation by depriving him of evidentiary sources which
would otherwise have been accessible to him.

368

RULE 26
ADMISSION BY ADVERSE PARTY
S e c t i o n 1. Request for admission. At a n y t i m e
a f t e r i s s u e s h a v e b e e n j o i n e d , a p a r t y m a y file a n d
s e r v e u p o n a n y o t h e r p a r t y a w r i t t e n r e q u e s t for
the admission by the latter of the genuineness of
any material and relevant document described in
and exhibited with the request or of the truth of
a n y m a t e r i a l a n d r e l e v a n t m a t t e r of fact set
forth in the request.
Copies of the documents
shall be delivered with the request unless copies
have already been furnished, (la)
S e c . 2.
Implied admission. E a c h of t h e m a t t e r s
of which an admission is requested shall be deemed
admitted unless, within a period designated in the
r e q u e s t , w h i c h s h a l l n o t b e l e s s t h a n f i f t e e n (15)
days after service thereof, or within such further
time as t h e c o u r t m a y allow on motion, the p a r t y to
w h o m t h e r e q u e s t i s d i r e c t e d files a n d s e r v e s u p o n
the party requesting the admission a sworn statem e n t either d e n y i n g specifically the m a t t e r s of
which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either
admit or deny those matters.
O b j e c t i o n t o a n y r e q u e s t for a d m i s s i o n s h a l l b e
submitted to the court by the party requested
w i t h i n t h e p e r i o d for a n d p r i o r t o t h e f i l i n g o f h i s
sworn statement as contemplated in the preceding
p a r a g r a p h and his compliance therewith shall be
deferred until such objections are resolved, which
resolution shall be made as early as practicable.
(2a)

369

RULE 26

REMEDIAL LAW COMPENDIUM

SECS. 1-3

S e c . 3.
Effect of admission. A n y a d m i s s i o n
m a d e b y a p a r t y p u r s u a n t t o s u c h r e q u e s t i s for t h e
purpose of the p e n d i n g action only and shall not
c o n s t i t u t e a n a d m i s s i o n b y h i m for a n y o t h e r
purpose nor may the same be used against him in
a n y o t h e r p r o c e e d i n g . (3)
NOTES
1. Rule 26, as a mode of discovery, c o n t e m p l a t e s
i n t e r r o g a t o r i e s seeking clarification in order to d e t e r m i n e
t h e t r u t h of t h e allegations in a pleading. A r e q u e s t for
admission should not merely reproduce or r e i t e r a t e the
allegations of t h e r e q u e s t i n g p a r t y ' s pleading b u t should
set forth relevant evidentiary m a t t e r s of fact, or documents
d e s c r i b e d i n a n d e x h i b i t e d w i t h t h e r e q u e s t , for t h e
p u r p o s e of e s t a b l i s h i n g t h e p a r t y ' s c a u s e of action or
defense. O n t h e o t h e r h a n d , t h e a d v e r s e p a r t y should
not be compelled to a d m i t m a t t e r s of fact a l r e a d y
a d m i t t e d in his pleading a n d concerning which t h e r e is
no issue, nor should he be r e q u i r e d to m a k e a second
denial of those m a t t e r s already denied in his a n s w e r to
t h e complaint (Po vs. CA, et al., L-34341, Aug. 22, 1988;
Briboneria vs. CA, et al., G.R. No. 101682, Dec. 14, 1992).
2. S e c . 1 of t h i s R u l e , as a m e n d e d , specifically
r e q u i r e s t h a t t h e facts s o u g h t t o b e a d m i t t e d b y t h e
a d v e r s e p a r t y m u s t be both m a t e r i a l a n d r e l e v a n t to the
issues in the case. The same r e q u i r e m e n t s of both
m a t e r i a l i t y a n d relevancy have likewise been specified in
t h e preceding Rule 25 on r e q u e s t s for admission. This
m u s t be so since t h e fact in question may be r e l e v a n t if it
h a s a logical t e n d e n c y to prove a factual m a t t e r in t h e
case b u t it may be i m m a t e r i a l if t h a t factual m a t t e r is no
longer in issue, a n d vice-versa.
3. Sec. 2 now c o n t a i n s a second p a r a g r a p h w i t h
detailed provisions on objections to requests for admission,
as well as t h e effects a n d disposition thereof.
370

RULE 26

ADMISSION BY ADVERSE PARTY

SEC. 4

4. Where t h e plaintiff failed to answer a request for


admission filed u n d e r this Rule, based on its allegations
in its original complaint, the legal effects of its implied
admission of t h e facts stated in the request cannot be set
aside by its subsequent filing of an amended complaint.
It s h o u l d h a v e filed a m o t i o n to be r e l i e v e d of t h e
consequences of said implied admission (Bay View Hotel,
Inc. vs. Ker & Co., Ltd., et al., L-28237, Aug. 31, 1982).
5. Where a copy of t h e request for admission was
served only upon the counsel of the p a r t y so requested,
it was held t h a t t h e r e was insufficient compliance with
Rule 26. The general rule t h a t notices shall be served on
t h e counsel of a p a r t y c a n n o t apply w h e r e t h e Rules
expressly provide t h a t it should be served upon a definite
person. Sec. 1 of this Rule provides t h a t t h e request for
admission should be served on t h e p a r t y to whom t h e
r e q u e s t is directed. Hence, t h e r e q u e s t for admission
was not validly served and t h a t p a r t y cannot be deemed
to have admitted t h e t r u t h of the m a t t e r s of which
a d m i s s i o n s w e r e r e q u e s t e d (Duque vs. CA, et al. a n d
Valenzuela, etc., et al. vs. CA, et al., G.R. No. 125383,
July 2, 2002).
6. However, an a n s w e r to a request for admission
properly served, which was signed and sworn to by the
counsel of the p a r t y so requested, is sufficient compliance
with this Rule, especially in light of counsel's authority
u n d e r Sees. 21 and 23, Rule 138 (Lanada vs. CA, et al.,
G.R. No. 102390 and Nestle Philippines, Inc., et al. vs.
CA, et al., G.R. No. 102404, Feb. 1, 2002).
S e c . 4.
Withdrawal. T h e c o u r t m a y a l l o w t h e
party making an admission under this Rule,
whether express or implied, to withdraw or amend
i t u p o n s u c h t e r m s a s m a y b e j u s t . (4)

371

RULE 26

REMEDIAL LAW COMPENDIUM

SEC. 5

S e c . 6.
Effect of failure to file and serve request for
admission. U n l e s s o t h e r w i s e a l l o w e d by t h e c o u r t
for g o o d c a u s e s h o w n a n d t o p r e v e n t a f a i l u r e o f
j u s t i c e , a p a r t y w h o f a i l s to file a n d s e r v e a r e q u e s t
for a d m i s s i o n o n t h e a d v e r s e p a r t y o f m a t e r i a l
and relevant facts at issue w h i c h are, or o u g h t to
be, w i t h i n t h e p e r s o n a l k n o w l e d g e of t h e latter,
shall not be permitted to present evidence on
s u c h f a c t s , (n)
NOTE
1. See t h e similar provision on unjustified failure of
a p a r t y to avail of w r i t t e n i n t e r r o g a t o r i e s as a mode of
discovery a n d t h e sanction therefor u n d e r Sec. 6 of Rule
25. The r e a s o n for t h e s e new provisions is explained in
t h e note t h e r e u n d e r . In Sec. 6 of Rule 25, t h e sanction
consists in allowing t h e a d v e r s e p a r t y to refuse to give
testimony or m a k e a deposition on a p p e a l respecting t h e
facts involved. U n d e r t h i s section of t h e Rule on r e q u e s t
for admission, t h e p a r t y who fails or refuses to r e q u e s t
t h e admission of t h e facts in question is himself p r e v e n t e d
from t h e r e a f t e r p r e s e n t i n g e v i d e n c e t h e r e o n . I n b o t h
cases, t h e court shall d e t e r m i n e on a case to case basis
w h e t h e r or not t h e n o n - a v a i l m e n t of t h e two modes of
discovery w a s justified or t h e n e g a t i v e s a n c t i o n s will
unjustly prejudice t h e e r r i n g p a r t y .

372

R U L E 27
P R O D U C T I O N OR I N S P E C T I O N
OF D O C U M E N T S OR T H I N G S
S e c t i o n 1.
Motion for production or inspection;
order. U p o n m o t i o n of a n y p a r t y s h o w i n g g o o d
cause therefor, the court in which an action is
p e n d i n g m a y (a) o r d e r a n y p a r t y t o p r o d u c e a n d
permit the inspection and copying or photographing, by or on behalf of the moving party,
of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain
evidence material to any matter involved in the
action and which are in his possession, custody
o r c o n t r o l ; o r (b) o r d e r a n y p a r t y t o p e r m i t e n t r y
upon designated land or other property in his
p o s s e s s i o n o r c o n t r o l for t h e p u r p o s e o f i n s p e c t i n g ,
measuring, surveying, or photographing the
property or any designated relevant object or
operation thereon. The order shall specify the
time, place and manner of making the inspection
and taking copies and photographs, and may
prescribe s u c h t e r m s and c o n d i t i o n s as are just,
(la)
NOTES
1. T h e p r o d u c t i o n of d o c u m e n t s a f f o r d s m o r e
opportunity for discovery t h a n a subpoena duces tecum
as, in the latter, the documents are brought to t h e court
for t h e first t i m e on t h e d a t e of t h e s c h e d u l e d t r i a l
w h e r e i n such d o c u m e n t s are required to be produced.
The inspection of land and other real property for t h e
purposes authorized by this Rule also avoids the need for
ocular inspection thereof by the court.
373

RULE 27

REMEDIAL LAW COMPENDIUM

SEC. 1

2 . I n c r i m i n a l c a s e s , m o t i o n s for p r o d u c t i o n o r
inspection of d o c u m e n t s a r e governed by Sec. 10, Rule
116, a n d may be availed of only by t h e accused generally
d u r i n g t h e pendency of t h e case for trial.
3. T h i s mode of discovery does not a u t h o r i z e t h e
opposing p a r t y or t h e clerk or o t h e r functionaries of t h e
court to d i s t r a i n t h e articles or deprive t h e p e r s o n who
produced t h e s a m e of t h e i r possession, even temporarily
(Tanda vs. Aldaya, 89 Phil. 497).
4. In motions for production of documents u n d e r this
Rule, it h a s been held t h a t "a p a r t y is ordinarily entitled
to t h e production of books, documents a n d p a p e r s which
a r e m a t e r i a l and relevant to t h e e s t a b l i s h m e n t of his cause
of action or defense" [General Electric Co. vs. Superior
Court in and for Almeda County, 45 C 2d 879, cited in
Martin, Rules of Court, 3rd edition, Vol. 2, p. 104\. "The
t e s t to be applied by t h e t r i a l judge in d e t e r m i n i n g t h e
r e l e v a n c y o f d o c u m e n t s a n d t h e sufficiency o f t h e i r
description is one of r e a s o n a b l e n e s s a n d practicability"
[Line Corp. of the Philippines vs. Moran, 59 Phil. 176,
180). "On t h e ground of public policy, t h e r u l e s providing
for production a n d inspection of books a n d p a p e r s do not
authorize the production or inspection of privileged
m a t t e r , t h a t is, books a n d p a p e r s which because of t h e i r
confidential a n d privileged c h a r a c t e r could not be received
in evidence" [27 CJS 224]. "In p a s s i n g on a motion for
discovery of d o c u m e n t s , t h e c o u r t s h o u l d be liberal in
d e t e r m i n i n g w h e t h e r or not d o c u m e n t s a r e r e l e v a n t to t h e
subject m a t t e r of the action" [Hercules Powder Co. vs. Haas
Co., U.S. Dist. Crt., Oct. 26, 1944; 9 Fed. Rules Service,
659, cited in Moran, Comments on the Rules of Court, 1979
Ed., Vol. 2, p. 102]. Likewise, "any s t a t u t e declaring in
g e n e r a l t e r m s t h a t official records a r e confidential should
be liberally construed, to have an implied exception for
disclosure w h e n needed in a court of justice" [Wigmore on
Evidence, Vol. VIII, p. 801, citing t h e case oiMarbury vs.

374

RULE 27

PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS

SEC. 1

Madison, 1 Cr. 137, 143] (Banco Filipino vs. Monetary


Board, et al., G.R. No. 70054, July 8, 1986).
5. In an American case, it was held t h a t the court
can compel the plaintiff, u n d e r this Rule, to consent to
t h e e x h u m a t i o n of t h e body of t h e deceased in a case
involving t h e "accidental death" clause of an insurance
policy
(Zalatuka vs. Metropolitan Life Ins.
Co.,
U.S.C.C.A., Dec. 22, 1939, 108 F. [2d] 405, 2 Fed. Rules
Service, p. 37).
It is believed t h a t t h e aforestated ruling could be
applicable here in a civil case involving the same issue,
considering t h a t Sec. 1 of t h i s Rule also speaks of "objects
or tangible things" which is broad enough to include a
cadaver. On t h e other hand, Rule 28 of the revised Rules
cannot be invoked for t h e same purpose as it contemplates
and is limited to physical and m e n t a l examination of a
living person. There would, however, be no problem if
the exhumation or postmortem examination is involved in
and necessary for purposes of a criminal action.
6. Although it is not among the modes of discovery,
but considering t h e similarity of objectives sought to be
subserved, note should be t a k e n of the writ of search and
seizure authorized for t h e protection of intellectual property. In a resolution in A.M. No. 02-1-06-SC, dated J a n u ary 22, 2002, t h e S u p r e m e Court approved the rule on
Search and Seizure in Civil Actions for Infringement of
Intellectual Property Rights (Appendix Z) which governs
this judicial process, effective February 15, 2002.

375

RULE 28
PHYSICAL A N D MENTAL EXAMINATION
OF P E R S O N S
S e c t i o n 1. When examination may be ordered. In
an action in which the mental or physical condition
of a party is in controversy, the court in w h i c h the
action is p e n d i n g m a y in its discretion order h i m to
s u b m i t to a p h y s i c a l or m e n t a l e x a m i n a t i o n by a
p h y s i c i a n . (1)
NOTES
1. The m e n t a l condition of a p a r t y is in controversy
in proceedings for g u a r d i a n s h i p over an imbecile or insane
person, while t h e physical condition of a p a r t y is generally
involved in physical injuries cases.
2. A blood g r o u p i n g t e s t may be o r d e r e d and
conducted u n d e r t h i s Rule on a child subject of a p a t e r n i t y
suit. While t h e Rule s p e a k s of an e x a m i n a t i o n of a p a r t y ,
such child is considered a p a r t y for p u r p o s e s thereof as
t h e action is b r o u g h t for i t s benefit (Beach vs. Beach,
U.S.C.A., D.C., June 28, 1940, 3 Fed. Rules Service,
p. 397).
3. Since t h e r e s u l t s of t h e e x a m i n a t i o n a r e i n t e n d e d
to be made public, the same are not covered by the
p h y s i c i a n - p a t i e n t privilege. F u r t h e r m o r e , such examination is not necessary to t r e a t or cure t h e p a t i e n t b u t to
assess t h e e x t e n t of injury or to e v a l u a t e his physical or
m e n t a l condition.
S e c . 2. Order for examination. T h e o r d e r for
e x a m i n a t i o n m a y b e m a d e o n l y o n m o t i o n for g o o d
cause shown and upon notice to the party to be
e x a m i n e d and to all other parties, and shall specify
376

RULE 28

PHYSICAL AND MENTAL


EXAMINATION OF PERSONS

SECS. 3-4

the time, place, manner, conditions and scope of the


examination and the person or persons by w h o m it
is to be m a d e . (2)
S e c . 3. Report of findings. If r e q u e s t e d by t h e
party examined, the party c a u s i n g the examination
to be m a d e s h a l l d e l i v e r to h i m a c o p y of a d e t a i l e d
written report of the examining physician setting
out his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled upon
r e q u e s t t o r e c e i v e from t h e p a r t y e x a m i n e d a l i k e
report of any examination, previously or thereafter
made of the same mental or physical condition. If
the party examined refuses to deliver such report,
the court on motion and notice may make an order
r e q u i r i n g d e l i v e r y o n s u c h t e r m s a s are j u s t , a n d i f
a p h y s i c i a n fails or r e f u s e s to m a k e s u c h a r e p o r t
t h e c o u r t m a y e x c l u d e h i s t e s t i m o n y i f offered a t
t h e trial. (3a)
S e c . 4. Waiver of privilege. By r e q u e s t i n g a n d
obtaining a report of the examination so ordered
or by taking the deposition of the examiner, the
party examined waives any privilege he may have
in that action or any other involving the same
controversy, regarding the testimony of every
other person who has examined or may thereafter
examine him in respect of the same mental or
p h y s i c a l e x a m i n a t i o n . (4)
NOTE
1. Where the p a r t y examined requests and obtains
a r e p o r t on the r e s u l t s of the e x a m i n a t i o n , the
consequences are t h a t (a) he has to furnish the other party
a copy of t h e r e p o r t of any p r e v i o u s or s u b s e q u e n t

377

RULE 28

REMEDIAL LAW COMPENDIUM

SECS. 3-4

examination of the same physical and mental condition,


and (b) he waives any privilege he may have in that action
or any other involving the same controversy regarding
the testimony of any other person who has so examined
him or may thereafter examine him. For the physicianpatient privilege, see Sec. 24(c), Rule 130 and Note 4
thereunder.

378

R U L E 29
REFUSAL TO COMPLY
WITH MODES OF DISCOVERY
S e c t i o n 1. Refusal to answer. If a p a r t y or o t h e r
deponent refuses to answer any question upon oral
examination, the examination may be completed on
other matters or adjourned as the proponent of the
question may prefer. The proponent may thereafter apply to the p r o p e r court of the place w h e r e
t h e d e p o s i t i o n i s b e i n g t a k e n for a n o r d e r t o c o m p e l
an answer. The same procedure may be availed of
w h e n a p a r t y or a witness refuses to a n s w e r any
i n t e r r o g a t o r y s u b m i t t e d u n d e r R u l e s 2 3 o r 25.
If the application is granted, the court shall
require the refusing party or deponent to answer
the question or interrogatory and if it also finds
that the refusal to answer was without substantial
justification, it may require the refusing party or
deponent or the counsel advising the refusal, or
both of them, to pay the proponent the amount of
the reasonable expenses incurred in obtaining the
o r d e r , i n c l u d i n g a t t o r n e y ' s fees.
If t h e application is denied a n d the c o u r t finds
t h a t i t w a s filed w i t h o u t s u b s t a n t i a l j u s t i f i c a t i o n ,
the court may require the proponent or the counsel
a d v i s i n g t h e filing of t h e application, or both of
them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in
opposing the application including attorney's
fees, ( l a )
S e c . 2. Contempt of court. If a p a r t y or o t h e r
witness refuses to be sworn or refuses to answer
any question after being directed to do so by the
379

RULE 29

REMEDIAL LAW COMPENDIUM

SEC. 3

court of the place in which the deposition is being


taken, the refusal may be considered a c o n t e m p t of
t h a t c o u r t . (2a)
S e c . 3.
Other consequences. If a n y p a r t y or an
officer o r m a n a g i n g a g e n t o f a p a r t y r e f u s e s t o o b e y
an order made under section 1 of this Rule
requiring him to answer designated questions, or
an order under Rule 27 to produce any document
o r o t h e r t h i n g for i n s p e c t i o n , c o p y i n g , o r
p h o t o g r a p h i n g or to permit it to be done, or to
permit entry upon land or other property, or an
order made under Rule 26 requiring h i m to submit
to a physical or mental examination, the court may
m a k e s u c h orders in regard to t h e refusal as are
just, and a m o n g others the following:
(a) A n o r d e r t h a t t h e m a t t e r s r e g a r d i n g w h i c h
the questions were asked, or the character or
description of the thing or land, or the contents of
the paper, or the physical or mental condition of
the party, or any other designated facts shall be
t a k e n t o b e e s t a b l i s h e d for t h e p u r p o s e o f t h e a c t i o n
in accordance with the claim of the party obtaining
the order;
(b) A n o r d e r r e f u s i n g t o a l l o w t h e d i s o b e d i e n t
party to support or oppose designated claims or
defenses or prohibiting him from introducing in
evidence designated documents or things or items
of testimony, or from introducing evidence of
physical or mental condition;
(c) A n o r d e r s t r i k i n g o u t p l e a d i n g s o r p a r t s
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
p r o c e e d i n g or any part thereof, or r e n d e r i n g a
j u d g m e n t b y d e f a u l t a g a i n s t t h e d i s o b e d i e n t party;
and

380

RULE 29

REFUSAL TO COMPLY
WITH MODES OF DISCOVERY

SECS. 4-6

(d) In l i e u of a n y of t h e f o r e g o i n g o r d e r s or in
addition thereto, an order directing the arrest of
a n y p a r t y or a g e n t of a p a r t y for d i s o b e y i n g a n y of
such orders except an order to submit to a physical
or m e n t a l e x a m i n a t i o n . (3a)
S e c . 4.
Expenses on refusal to admit. If a p a r t y
after b e i n g s e r v e d w i t h a r e q u e s t u n d e r R u l e 26 to
admit the genuineness of any document or the truth
o f a n y m a t t e r o f fact, s e r v e s a s w o r n d e n i a l t h e r e o f
and if the party r e q u e s t i n g the admissions
thereafter proves the genuineness of such
d o c u m e n t o r t h e t r u t h o f a n y s u c h m a t t e r o f fact,
h e m a y a p p l y t o t h e c o u r t for a n o r d e r r e q u i r i n g
the other party to pay h i m the reasonable e x p e n s e s
i n c u r r e d i n m a k i n g s u c h proof, i n c l u d i n g a t t o r n e y ' s
fees. U n l e s s t h e c o u r t f i n d s t h a t t h e r e w e r e g o o d
r e a s o n s for t h e d e n i a l o r t h a t a d m i s s i o n s s o u g h t
were of no substantial importance, such order shall
be i s s u e d . (4a)
S e c . 5.
Failure of party to attend or serve answers.
If a p a r t y or an o f f i c e r or m a n a g i n g a g e n t of
a p a r t y w i l l f u l l y fails to a p p e a r before t h e officer
w h o i s t o t a k e h i s d e p o s i t i o n , after b e i n g s e r v e d
w i t h a p r o p e r n o t i c e , or fails to s e r v e a n s w e r s to
i n t e r r o g a t o r i e s s u b m i t t e d u n d e r R u l e 25, a f t e r
proper service of such interrogatories, the court on
m o t i o n a n d n o t i c e , m a y s t r i k e o u t all o r a n y part o f
any p l e a d i n g o f t h a t party, o r d i s m i s s t h e a c t i o n o r
p r o c e e d i n g or a n y part thereof, or e n t e r a j u d g m e n t
b y d e f a u l t a g a i n s t t h e party, a n d i n its d i s c r e t i o n ,
order h i m to pay reasonable expenses incurred by
t h e o t h e r , i n c l u d i n g a t t o r n e y ' s fees. (5)
S e c . 6.
Expenses against the Republic of the
Philippines. E x p e n s e s a n d a t t o r n e y ' s fees are not
381

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SECS. 4-6

to be imposed upon the Republic of the Philippines


u n d e r t h i s R u l e . (6)
NOTES
1. Where t h e plaintiff failed to a n s w e r t h e w r i t t e n
i n t e r r o g a t o r i e s for unexplained reasons, dismissal of the
complaint is w a r r a n t e d u n d e r Sec. 5, Rule 29 a n d such
omission may also be considered as failure to prosecute
t h e action (Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
2. The former title of t h i s Rule which read "Refusal
to M a k e Discovery" h a s been changed in t h i s revision in
t h e i n t e r e s t of accuracy.

382

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S e c t i o n 1. Notice of trial. U p o n e n t r y of a c a s e
in the trial calendar, the clerk shall notify the
parties of the date of its trial in such m a n n e r as
s h a l l e n s u r e h i s r e c e i p t o f t h a t n o t i c e a t l e a s t five
(5) d a y s before s u c h d a t e . (2a, R22)
NOTES
1. The words "trial" a n d "hearing" have different
m e a n i n g s a n d c o n n o t a t i o n s . T r i a l m a y refer t o t h e
reception of evidence and other processes. It embraces
the period for t h e introduction of evidence by both parties.
Hearing, as known in law, is not confined to t r i a l b u t
embraces t h e several stages of litigation, including t h e
p r e - t r i a l s t a g e . A h e a r i n g does not necessarily m e a n
presentation of evidence. It does not necessarily imply
t h e p r e s e n t a t i o n of o r a l or d o c u m e n t a r y evidence in
open court but t h a t the parties are afforded the opportunity
to be h e a r d (Republic vs. Sandiganbayan, et al.,
G.R. No. 152154, Nov. 18, 2003).
2. As a m a t t e r of procedural due process, it is now
required t h a t t h e p a r t i e s should receive notice of the trial
at least 5 days before the scheduled date. This is intended
to avoid the u s u a l misunderstandings and failure of the
parties to appear for trial as the previous rule did not spell
out these mechanics of service.
S e c . 2. Adjournments and postponements. A
c o u r t m a y a d j o u r n a trial from d a y to day, a n d to
any stated time, as the expeditious and convenient
t r a n s a c t i o n o f b u s i n e s s m a y r e q u i r e , but s h a l l h a v e
no p o w e r to a d j o u r n a trial for a l o n g e r p e r i o d t h a n

383

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SECS. 3-4

o n e m o n t h for e a c h a d j o u r n m e n t , nor m o r e
t h a n t h r e e m o n t h s i n all, e x c e p t w h e n a u t h o r i z e d
in writing by the Court Administrator, Supreme
Court. (3a, R22)
S e c . 3.
Requisites of motion to postpone trial
for absence of evidence. A m o t i o n to p o s t p o n e a
trial on the ground of absence of evidence can
be granted only upon affidavit showing the
materiality and relevancy of such evidence, and
t h a t d u e d i l i g e n c e h a s b e e n u s e d t o p r o c u r e it. B u t
if the adverse party admits the facts to be given in
evidence, even if he objects or reserves the right to
object to their admissibility, the trial shall not be
p o s t p o n e d . (4a, R22) (As corrected by Resolution of the
Supreme Court, dated July 21, 1998)
S e c . 4. Requisites of motion to postpone trial for
illness of party or counsel. A m o t i o n to p o s t p o n e a
trial on the ground of illness of a party or counsel
may be granted if it appears u p o n affidavit or s w o r m
certification that the presence of such party or
counsel at the trial is indispensable and that the
character of his illness is such as to render his nona t t e n d a n c e e x c u s a b l e . (5a, R22)
NOTES
1. P o s t p o n e m e n t s are addressed to the sound
discretion of t h e court and, in t h e absence of grave abuse
of discretion, c a n n o t be controlled by m a n d a m u s (Olsen
vs. Fressel & Co., 37 Phil. 121).
2. T h e p r o v i s i o n s of Sec. 3 of t h i s R u l e a r e not
applicable to c r i m i n a l cases as t h e rule on p o s t p o n e m e n t s
in c r i m i n a l cases is governed by Sec. 2, Rule 119 (People
vs. Catolico, L-31261-65, April 20, 1971).

384

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SEC. 5

3. A mere medical certificate is generally insufficient.


It m u s t be u n d e r o a t h or in t h e form of an affidavit.
However, it h a s been held t h a t even if t h e motion to
postpone on account of illness was not accompanied by a
medical certificate, since not every ailment is a t t e n d e d to
by a physician and the required medical certificate u n d e r
oath could not be obtained within a limited time, such
r e q u i r e m e n t may be dispensed with in t h e i n t e r e s t of
justice
(Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983).
S e c . 5. Order of trial. S u b j e c t to t h e p r o v i s i o n s o f s e c t i o n 2 o f R u l e 31, a n d u n l e s s t h e c o u r t
for s p e c i a l r e a s o n s o t h e r w i s e d i r e c t s , t h e trial s h a l l
b e l i m i t e d t o t h e i s s u e s s t a t e d i n t h e pre-trial o r d e r
and shall proceed as follows:
(a) T h e p l a i n t i f f s h a l l a d d u c e e v i d e n c e i n
support of his complaint;
(b) T h e d e f e n d a n t s h a l l t h e n a d d u c e e v i d e n c e
in support of his defense, counterclaim, cross-claim
and third-party complaint;
(c) T h e t h i r d - p a r t y d e f e n d a n t , i f a n y , s h a l l
adduce evidence of his defense, counterclaim,
cross-claim and fourth-party complaint;
(d) T h e f o u r t h - p a r t y , a n d so forth, if a n y , s h a l l
a d d u c e e v i d e n c e o f t h e m a t e r i a l facts p l e a d e d b y
them;
(e) T h e p a r t i e s a g a i n s t w h o m a n y c o u n t e r claim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to
be p r e s c r i b e d by t h e court;
(f) T h e p a r t i e s m a y t h e n r e s p e c t i v e l y a d d u c e
r e b u t t i n g e v i d e n c e o n l y , u n l e s s t h e c o u r t , for
good reasons and in the furtherance of justice,
permits them to adduce evidence upon their
original case; and
385

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SEC. 5

(g) U p o n a d m i s s i o n o f t h e e v i d e n c e , t h e c a s e
s h a l l b e d e e m e d s u b m i t t e d for d e c i s i o n , u n l e s s t h e
court directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or third-party defendants,
and so forth, h a v i n g separate d e f e n s e s a p p e a r by
different counsel, the court shall determine the
relative order of presentation of their evidence, (la,
R30)
NOTES
1. U n d e r s c o r i n g t h e i m p o r t a n c e of a p r e - t r i a l
conference a n d t h e proceeding conducted t h e r e i n , this
a m e n d e d section additionally provides t h a t , u n l e s s t h e
court specifically directs, t h e t r i a l shall be limited to t h e
issues s t a t e d in t h e p r e - t r i a l order.
2. P a r . (g) declares, for p u r p o s e s of fixing t h e date
of s u b m i s s i o n of t h e c a s e for d e c i s i o n v i s - a - v i s t h e
c o n s t i t u t i o n a l period for deciding t h e s a m e , t h a t it shall
be u p o n t h e a d m i s s i o n of t h e e v i d e n c e of t h e p a r t i e s .
However, if the trial court allows oral a r g u m e n t or
submission of m e m o r a n d a , the period shall be
c o r r e s p o n d i n g l y e x t e n d e d after s u c h p r o c e e d i n g s h a v e
b e e n c o n d u c t e d o r such m e m o r a n d a s u b m i t t e d . Since
t h e r e is a possibility t h a t t h e m e m o r a n d a m a y not be
received in t h e court s i m u l t a n e o u s l y , t h e c o u r t should
specify in a d v a n c e or declare after a c t u a l submission of
t h e m e m o r a n d a o r f u r t h e r pleadings t h e d a t e w h e n t h e
case is d e e m e d s u b m i t t e d for decision.
3. The order of t r i a l provided for in Sec. 5 applies
to a regularly controverted claim. Hence, if t h e a n s w e r
admits the defendant's obligation as alleged in the
complaint but special defenses are invoked, plaintiff
does not have to p r e s e n t evidence since judicial admissions
do not r e q u i r e proof (Sec. 2, Rule 129), a n d it should be
386

RULE 30

TRIAL

SEC. 6

the defendant who should forthwith p r e s e n t his evidence


in support of his special defenses (Yu vs. Mapayo, L-29742,
Mar. 29, 1972).
4. Additional evidence may be offered at the rebuttal
s t a g e if it w a s newly discovered, or o m i t t e d t h r o u g h
mistake or inadvertence, or where the purpose is to correct
evidence previously offered (Lopez vs. Liboro, 81 Phil.
429), subject to the discretion of the court.
5. A r e l a t e d r u l e in A m e r i c a n j u r i s p r u d e n c e on
evidence at the rebuttal stage was adopted by the Supreme
C o u r t in a c r i m i n a l case (People vs. Mazo, G.R. No.
136869, Oct. 17, 2001) which could very well apply in all
o t h e r c a s e s . T h e holding is t h a t evidence offered in
rebuttal is not automatically excluded just because it would
have been more properly admitted in the case in chief.
W h e t h e r evidence could have been more properly
admitted in the case in chief is not a test of admissibility
of evidence in r e b u t t a l . T h u s , the fact t h a t testimony
might have been useful and usable in t h e case in chief
does not necessarily preclude its use in rebuttal.
S e c . 6. Agreed statement of facts. T h e p a r t i e s
t o a n y a c t i o n m a y a g r e e , i n w r i t i n g , u p o n t h e facts
i n v o l v e d i n t h e l i t i g a t i o n , a n d s u b m i t t h e c a s e for
judgment on the facts agreed upon, without the
introduction of evidence.
I f t h e p a r t i e s a g r e e o n l y o n s o m e o f t h e facts
in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe.
(2a, R30)
NOTES
1. This is known as a stipulation of facts and is
among t h e purposes of a pre-trial in civil cases (Sec. 2[d],
Rule 18). The parties may also stipulate verbally in open
387

RULE 30

REMEDIAL LAW COMPENDIUM

SECS. 7, 8

court. Such s t i p u l a t i o n s a r e b i n d i n g u n l e s s relief


therefrom is p e r m i t t e d by t h e court on good cause shown,
such as e r r o r or fraud (Ortua vs. Rodriguez, 63 Phil. 809).
B u t counsel c a n n o t s t i p u l a t e o n w h a t t h e i r respective
evidence consists of and ask t h a t j u d g m e n t be rendered
on t h e basis of such stipulation (Arzadon vs. Arzadon, 15
Phil. 77).
2. S t i p u l a t i o n s of facts are not p e r m i t t e d in
actions for a n n u l m e n t of m a r r i a g e (Art. 88, Civil Code;
now, Art. 48 Family Code) a n d for l e g a l s e p a r a t i o n
(Art. 101, Civil Code; n o w , Art. 60, Family Code).
Formerly, in criminal cases, stipulations of facts were not
p e r m i t t e d (U.S. vs. Donato, 9 Phil. 701; People vs. Ordonio,
[CA], 67 O.G. 4224). See, however, Rule 118 which now
p e r m i t s such s t i p u l a t i o n s a t t h e p r e - t r i a l conference.
S e c . 7. Statement of judge. D u r i n g t h e h e a r i n g
or trial of a case any statement made by the judge
with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the
s t e n o g r a p h i c n o t e s . (3a, R30)
NOTE
1. T h i s p r o v i s i o n differs s o m e w h a t from t h a t of
Sec. 17, Rule 136, t h e last p a r a g r a p h whereof r e a d s as
follows:
"Whenever requested by a party, any statement made
by a judge of first instance, or by a commissioner, w i t h
reference to a case being tried by him, or to any of t h e
p a r t i e s t h e r e t o , or to any w i t n e s s or a t t o r n e y , d u r i n g t h e
h e a r i n g of s u c h c a s e , s h a l l be m a d e of r e c o r d in t h e
s t e n o g r a p h i c notes."
S e c . 8. Suspension of actions. T h e s u s p e n s i o n
of actions shall be governed by the provisions of
t h e C i v i l C o d e , (n)
388

RULE 30

TRIAL

SEC. 9

NOTES
1. Rule 21 of t h e former Rules, providing for t h e
suspension of action, has been eliminated in these revised
Rules and, instead, these provisions of the Civil Code have
been adopted for t h a t purpose:
"Art. 2030. Every civil action or proceeding shall
be suspended:
(1) If willingness to discuss a possible compromise
is expressed by one or both parties; or
(2) If it a p p e a r s t h a t one of the parties, before
the commencement of the action or proceeding, offered
to discuss a possible compromise but t h e other p a r t y
refused t h e offer.
The d u r a t i o n and t e r m s of the suspension of the
civil action or proceeding and similar m a t t e r s shall
be governed by such provisions of the rules of court
as t h e S u p r e m e Court shall promulgate. Said rules
of court shall likewise provide for the appointment
and duties of amicable compounders."
S e c . 9. Judge to receive evidence; delegation to clerk
of court. T h e j u d g e of t h e c o u r t w h e r e t h e c a s e is
pending shall personally receive the evidence to be
adduced by the parties. However, in defaults or
ex parte h e a r i n g s , a n d in a n y c a s e w h e r e t h e p a r t i e s
agree in writing, the court may delegate the
r e c e p t i o n of e v i d e n c e to its c l e r k of c o u r t w h o is a
m e m b e r o f t h e bar. T h e c l e r k o f c o u r t s h a l l h a v e
no power to rule on objections to any question or
to the admissio