PROCEDURE IN THE REGIONAL TRIAL COURTS

Rule 6
KINDS OF PLEADINGS

SECTION 1. Pleadings Defined. Pleadings are the

written statements of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment. (1a)
1. Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
judgment. (Section 1) Under the Rules, pleadings cannot be oral because
they are clearly described as written statements.
2. Necessity and purpose of pleadings1. Pleadings are necessary to invoke the jurisdiction of the court (71
C.J.S. Pleadings).
2. Pleadings are intended to secure a method by which the issues may
be properly laid before the court. (Santiago v. de los Santos 61 SCRA
146).
3. Pleadings are designed to present, define and narrow the issues,
to limit the proof to be submitted in the trial, to advise the court
and the adverse party of the issues and what are relied upon as the
causes of action or defense. (71 CJS)
The counterpart of pleadings in criminal procedure is information, or the
criminal complaint where a prosecutor will tell what crime you are being
accused what you did, time, the victim, etc.
3. Construction of pleadings-

In this jurisdiction, all pleadings shall be liberally construed so as to do

substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA 88).
While it is the rule that pleadings should be liberally construed, it has also
been ruled that a party is strictly bound by the allegations,
statements or admissions made in his pleading and cannot be
permitted to take a contradictory position. (Santiago v. de los Santos
61 SCRA 146)
Construction of ambiguous allegations in pleadings
In case there are ambiguities in the pleadings, the same must be
construed most strongly against the pleader and that no presumptions in his
favor are to be indulged in. (61 Am Jur, Pleading)

Sec. 2 Pleadings allowed The claims of a party

are asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.) party complaint, or complaintin-intervention.
The defenses of a party are alleged in the answer to
the pleading asserting a claim against him.
An answer may be responded to by a reply. (n)
In a civil case, there are actually two (2) contending parties: (1) the
person suing or filing a claim; and (2) the person being sued or defending.
Q: If you are the claimant or the plaintiff, in what pleading do you assert
your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourthparty complaint, etc.
On the other hand, if you are the party sued, you also have to file your
pleading or your defense. It is known as the ANSWER. The defenses of a
party are alleged in the answer to the pleading asserting a claim against
him.
In the last paragraph, an answer may be responded by a REPLY.

COMPLAINT

ANSWER

REPLY

Q: Summarizing all of them, what are the known pleadings recognized by

the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1 Complaint;
2 Answer;
3 Counterclaim;
4 Cross-claim;
5 Reply
6 Third (Fourth, Fifth, etc.) Party Complaint;
7 Complaint-in-Intervention.
Pleadings allowed under the Rules on Summary Procedure
Note however, that when a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are:
1 Complaint;
2 Compulsory Counterclaim;
3 Cross-claim pleaded in the Answer; and
4 Answers thereto (Sec. 3 [A]II, Rules on Summary Procedure)
Permissive Counterclaims, third-party complaints, reply and pleadings-inintervention are prohibited. (Sec. 9, IV)
Pleadings in small claims casesInstead of a complaint it is commenced by filing an accomplished and
verified Statement of Claim (Form 1-SCC).
Instead of an answer, the defendant is to file an accomplished and verified
Response (Form 3-SCC). The defendant may also file a counterclaim
(permissive or compulsory).
Aside from the prohibited motions, the following are not allowed:
a Petition for Relief from Judgment;
b Petition for Certiorari, mandamus, or
interlocutory order issued by the court;
c Reply;
d Third-Party complaints; and
e Interventions.
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prohibition

against

any

Pleadings in Environmental CasesPleadings allowed are:

a complaint;
b answer which may include a compulsory counterclaim;
c Pleading in intervention may be filed as in a citizen suit.
Reply, rejoinder and a third-party-complaint are prohibited.
Pleading and motion distinguished1. the purpose of a pleading is to submit a claim or defense for
appropriate judgment while the purpose of a motion is to apply for an order
not included in the judgment;
2. a pleading may be initiatory like a complaint while a motion can never
be such as it is filed in a case that is already pending in court;
3. A pleading is always filed before judgment while a motion may be filed
after judgment;
4. There are only 7 kinds of pleadings while any application for a relief
other a judgment can be made in a motion' however, there are only three
motions which actually seek judgment namely: a.) a motion for judgment on
the pleadings (R 34); b.) a motion for summary judgment (R 35); c.)
Demurrer to Evidence
5. a pleading must be written while a motion may be oral when made in
open court or in the course of a hearing or trial.
How to determine the nature of a pleadingNot by its title but by its allegations or averments (Bank of Commerce v.
Perlas-Bernabe, 634 SCRA 107, 118).
DISCUSSION ON THE KINDS OF PLEADINGS-

COMPLAINT
Sec. 3. Complaint The complaint is the pleading
alleging the plaintiffs cause or causes of action. The
names and residences of the plaintiff and defendant
must be stated in the complaint.
Q: Define complaint.
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A: COMPLAINT is the pleading where the plaintiff will allege his cause or
causes of action. A complaint is also called the INITIATORY PLEADING
because it is actually the first pleading filed in court. It is the pleading that
initiates the civil action.
Test of sufficiency of the facts alleged in the complaintDetermine whether upon the averment of facts, a valid judgment may be
properly rendered.
What to allegeRule 8 requires that it should contain a concise statement of the ultimate
facts constituting the plaintiff's cause of action not evidentiary facts
or legal conclusions.
Ultimate facts refer to the essential facts constituting the plaintiff's
cause of action.
The fact is essential if it cannot be stricken out without leaving
the statement of the cause of action insufficient.
What are not ultimate facts:
1. evidentiary or immaterial facts;
2. legal conclusions, conclusions or inferences of facts from facts not
stated, or incorrect inferences or conclusions from facts stated;
3. the details of probative matter or particulars of evidence, statements of
law, inferences and arguments;
4. an allegation that a contract is valid or void is a mere conclusion of law.
Mr. P wants to sue Mr. R to collect an unpaid loan. Mr. R borrowed money
from Mr. P and refused to pay. Normally, it starts with an introduction:
Plaintiff, through counsel, respectfully alleges that Then it is followed by
paragraphs which are numbered. For instance:
Illustration:
1 Plaintiff Mr. P, of legal age, is a resident of 79 P. del Rosario St., Cebu
City; whereas defendant Mr. R also of legal age, is a resident of 29
Pelaez St. Cebu City where summons and other processes of this
court may be served;
2 On Nov. 7, 2008, defendant secured a loan from plaintiff in the sum
of P30,000.00 payable within one (1) year form said date with legal
interest;
3 The account is already due and despite repeated demands,
defendant failed and refused to pay;
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PRAYER
WHEREFORE, it is respectfully prayed that judgment be
rendered against the defendant ordering him to pay the loan
of P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just
and equitable under the premises.
Your allegations must contain the four (4) elements of a Cause of Action
the Right, the Obligation, the Delict or Wrong or Violation of Your Right, and
the Damage.
Filing of the complaint and its significanceTo file a complaint or an initiatory pleading means presenting the
same to the clerk of court (Sec. 2, Rule 13).
It signals the commencement of the civil action (Sec. 5, Rule 1) and
the submission by the plaintiff to the jurisdiction of the court over
his person.
It likewise interrupts the running of the prescriptive period of the
action (Art. 1155 of NCC).
How jurisdiction over the subject matter is acquiredHowever, for the court to acquire jurisdiction over the subject matter or the
action, filing is not sufficient, there must also be payment of the required
docket fee (Proton Pilipinas Corporation v. Banque Nacional de Paris, 460
SCRA 260, 276).
Payment of docket fee for supplemental complaintIn Do-All Metals Industries, Inc., v. Security Bank Corporation, 639 SCRA 39,
45, the Court ruled that the trial court acquired jurisdiction over the plaintiffs
action from the moment they filed their original complaint accompanied by
the payment of the filing fees due on the same. The plaintiffs nonpayment of the additional filing fees due on their additional claims
did not divest the RTC of the jurisdiction it already had over the
case.

ANSWER

Sec. 4 Answer An answer is a pleading in which a

defending party sets forth his defenses. (4a)
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your defenses.
That is why an ANSWER is called a Responsive Pleading.
Q: Why is it called Responsive Pleading?
A: Because it is the pleading which is filed in response to the complaint or
a pleading containing a claim. It is where you respond to the cause of action.
That is where you state your defenses.
So you can file an answer to the complaint; answer to the counterclaim,
answer to the cross-claim, etc.
It is not found in Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When you plead
guilty, and the offense is not punishable by reclusion perpetua to death it is
the end.
There is no writing of defenses, no written answer in criminal cases. It
(pleadings) only applies to civil cases where you allege your defenses.
Q: What are the defenses under the Rules?
A: That is Section 5.
Sec. 5 Defenses Defenses may either be negative
or affirmative.
A NEGATIVE DEFENSE is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An AFFIRMATIVE DEFENSE is an allegation of a new
matter, which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.
Defenses may either be negative or affirmative.
NEGATIVE DEFENSE/S;
Q: Define a NEGATIVE defense.

A: Paragraph [a]: Briefly, it is a defense of specific denial where you

deny the statement in the complaint and you state the facts and the
reason/s on which your denial is based. In a negative defense, the
defendant specifically denies a material fact or facts alleged in the pleading
of the claimant essential to his cause of action.

3 Kinds of Specific Denial1

Absolute denial-the defendant specifies each material

allegation of fact the truth of which he does not admit and
whenever practicable, sets forth
the substance of the
matters upon which he relies to support his denial. (Sec. 10,
Rule 8)
EXAMPLE: The complaint says in paragraph 2, On November 6,
2008, defendant secured a loan from plaintiff in the amount of
P30,000.00 payable one (1) year from November 6, 2008.
The defendant will say in his answer:
Defendant specifically denies the allegation in Paragraph 2 of
the complaint. The truth of the matter being that he never
secured any loan from plaintiff because he does not even know
the plaintiff and he did not see his face before.

Partial denial- the defendant does not make a total denial of the
material allegations in a specific paragraph. In this type, he denies
only a part of the averment. He specifies the part the truth of which
he admits and denies only the remainder.
In the above Example he can say:
Defendant admits the part of the allegation in paragraph 2
which states that he secured a loan from the plaintiff but specifically
denies the remaining part for the truth of the matter being that the
amount is only P10,000.00 payable two (2) years from November 6,
2008.

3.Denial by disavowal of knowledge- where the defendant alleges

that he is without knowledge or information sufficient to form a belief
as to the truth of a material averment made in the complaint. This
must be made honestly and in good faith.
Example:
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The defendant is without knowledge or information sufficient to

form a belief as to the truth of the material allegation made in
paragraph 2 in the complaint.
When a specific denial needs to be under oath:
1 a denial of an actionable document (Sec. 8, Rule 8)
2 a denial of allegations of usury in a complaint (not answer) to
recover usurious interest (Sec. 11, Rule 8)
Insufficient denial or denial amounting to admissions:
1. General denial or failure to conform to the required form of specific denial;
and
2. denial in the form of negative pregnant
Negative pregnant is a denial in such form as to imply or express an
admission of the substantial fact, which though appearing denied. It is a form
of denial, which really admits the important facts contained in the allegations
to which it relates.
While it is a denial in form, its substance actually has the effect of an
admission because of a too literal denial of the allegations sought to be
denied. This arises when the pleader merely repeats the allegations in a
negative form or denies only a qualification or an incidental aspect of the
allegation but not the main allegation itself..
In the example above, when the answer states:
"The defendant did not secure a loan from the plaintiff on Nov. 6, 2008 in
the amount of P30,000.00 payable within one year" or Defendant denies
that he secured a loan from the plaintiff on November 6, 2008 in the amount
of P10,000.00 payable one (1) year from November 6, 2008.
AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession and
avoidance because, while the defendant may admit the material allegation in
the complaint, however, he will plead a new matter which will prevent a
recovery by the plaintiff. I admit what you are saying in the complaint but
still you are not entitled to recover from me.
EXAMPLE
Defendant may say: Defendant admits the allegation in par. 2 of the
Complaint, but alleges that the action has prescribed.
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He confesses to having borrowed money but avoids liability by asserting

prescription.
Examples of affirmative defenses are:
1 fraud,
2 statute of limitations,
3 release, payment,
4 illegality,
5 statute of frauds,
6 estoppel,
7 former recovery,
8 discharge in bankruptcy, and
9 any other matter by way of confession and avoidance.
Suppose, you sue me for damages arising from breach of contract. I
admit I entered into a contract but I have no obligation to comply because
the contract is null and void. Or, the contract is illegal. Or, the stipulation is
contrary to public policy, therefore, I am not bound. I admit what you say
but I am not liable because of the illegality of the subject matter of the
contract.
Or, you sue me because according to you, I entered into a contract and I
refused to comply. So, you file a case against me for specific performance or
for damages. Then I say: Its true that I entered into a contract with you.
Its true I did not comply. But there is nothing you can do because the
contract is oral and the contract is covered by the statute of frauds. In order
to be enforceable, we should have reduced it into writing. Since we never
reduced it into writing, I am not bound to comply.
COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim
which a defending party may have against an opposing
party. (6a)
EXAMPLE: You file a case against me for damage to your car.
you in your complaint, while you were driving your car along
carefully, I came along driving recklessly and bumped your
damages amounting to P50,000.00 for repair. Your allegation
negligence on my part.

According to
the highway
car causing
is based on

My answer is denial: That is not true! I deny that! I was the one driving
carefully and you were driving carelessly and negligently. Therefore, if you
are

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the proximate cause of the accident, Im not liable for the damage of your
car. Thats my answer Im not liable because you are negligent. Because
you were the one negligent, my car was also damaged. I am not liable for the
damage on your car. As a matter of fact, you are the one that should be held
liable to pay for the damage of my car. I am now claiming for the damage of
P50,000.00. That is called COUNTERCLAIM.
Nature of a counterclaim
A counterclaim is in the nature of a cross-complaint. Although it
may be alleged in the answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the original complaint. For
this reason it is to be answered within ten (10) days from service.
Q: If your complaint against me is to recover a sum of money, should my
counterclaim also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in
nature. (De Borja vs. De Borja, 101 Phil. 911) It is possible for you to file case
for recovery of a piece of land and my counterclaim is recovery of damages
arising from a vehicular accident.
Q: Suppose your claim against me is One (1) Million, is it possible that my
counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount
you are claiming. A counterclaim need not diminish or defeat the recovery
sought by the opposing party, but may claim relief exceeding in amount or
different in kind from that sought by the opposing party. (De Borja vs. De
Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan.
My
counterclaim is, rescission of partnership contract. Is the counterclaim
proper?
A: Yes although there is no connection between what you are asking and
what my answer is. But what is important is that we are the same
parties. If you will not allow me to file my counterclaim against you, that will
be another case in the future. So to avoid multiplying suits, clogging the
dockets of the court and making the proceedings more expensive, violating
the purpose of the rules, the parties are allowed to include all their claims
against each other in one case.
Same capacity rule
The SC said that the plaintiff should be sued in a counterclaim in the
SAME CAPACITY that he is suing the defendant. Thats a principle to
remember.
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DE BORJA vs. DE BORJA

101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X
was appointed as administrator or legal representative. W owes a
sum of money to the estate of A and X filed a case against W to
collect the unpaid loan. X is called the REPRESENTATIVE PARTY
under Rule 3, Section 3. W filed an answer and stated that W has a
claim against X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not
suing in his own personal capacity. He is acting as administrator of
the estate of A. The real plaintiff is the estate of A. X is just the legal
representative. Therefore, you cannot file a counterclaim against X
in the latters personal capacity when X is suing W in a
representative capacity.

PERMISSIVE & COMPULSORY COUNTERCLAIMS

Sec. 7 Compulsory counterclaim A compulsory
counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is
connected
with
the
transaction
or
occurrence
constituting the subject matter of the opposing partys
claim and does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction. Such a counterclaim must be
within the jurisdiction of the court both as to the
amount and the nature thereof, except that in the
original action before the Regional Trial Court, the
counterclaim may be considered compulsory.
Under the Rules, there are two types of counterclaim. 1) COMPULSORY
COUNTERCLAIM and, 2) PERMISSIVE COUNTERCLAIM.
The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7,
namely:
1 It is cognizable by the regular courts of justice;
2 It arises out of or it is connected with a transaction or occurrence
constituting a subject matter of the opposing partys claim;

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3 It does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction;
4 It must be within the jurisdiction of the court, both as to the amount
and the nature thereof, except that in an original action before the RTC,
the counterclaim may be considered compulsory regardless of the
amount; and
5 The defending party has a counterclaim at the time he files his answer.
The fifth requisite is not found in Section 7 but in Rule 11, Section 8:
Rule
claim.
that a
answer

11, Sec. 8. Existing counterclaim or cross- A compulsory counterclaim or a cross-claim

defending party has at the time he files his
shall be contained therein. (8a, R6)

Another way of saying it is, the counterclaim has already matured at the
time he files his answer. That is the fifth requisite.
If one of the five requisites is missing, the counterclaim is
permissive in nature.
Discussion of the elements
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE
COGNIZABLE BY THE REGULAR COURTS.
In other words, if you file a complaint against me and I have a counterclaim
against you under the Labor Code, then it cannot be classified as a
compulsory claim because how can I invoke against you a claim which is
cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED
WITH A TRANSACTION OR OCCURRENCE CONSTITUTING A
SUBJECT MATTER OF THE OPPOSING PARTYS CLAIM
The second requisite is the most important. A counterclaim, to be
compulsory, must arise out of or connected with the transaction or
occurrence constituting a subject matter of the opposing party concerned. It
must arise out of or is connected with a transaction or occurrence
constituting a subject matter of the opposing partys claim. It must be
logically related to the subject matter of the main action.
Logical Relationship Test

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The logical relationship test between the claim and the counterclaim has
been called: The one compelling test of compulsoriness. Under this test,
any claim a party has against an opposing party that is logically related
to the claim being asserted by the opposing party, and that it is not
within the exception to the rule is a compulsory counterclaim. Its
outstanding quality is flexibility. (Tan v. Kaakbay Finance Corporation
404 SCRA 518)
MELITON vs. COURT OF APPEALS
216 SCRA 485
HELD: It has been postulated that while a number of criteria
have been advanced for the determination of whether the
counterclaim is compulsory or permissive, the one compelling
test of compulsoriness is the logical relationship between
the claim alleged in the complaint and that in the
counterclaim, that is, where conducting separate trials of the
respective claims of the parties would entail a substantial
duplication of effort and time, as where they involve many
of the same factual and/or legal issues.
PROBLEM: Emily filed a case against Regina for damages arising from a
vehicle collision. According to Emily, the case of the accident is the
negligence of the defendant in driving her car. Her car bumped the car of
Emily and was damaged. So, Emily is holding Regina liable for the damage
on her car. Regina denied that she was negligent. According to Regina, No, I
am not negligent. As a matter of fact, you (Emily) were the one negligent,
and because of that negligence, my car was also damaged. So you should be
the one to pay damages.
Q: Is the counterclaim of Regina arising out of or is connected with the
transaction or occurrence constituting the subject matter of the opposing
party?
A: YES because we are talking of the same bumping. You bumped my car,
you say I bumped your car. So we are talking of the same event or
transaction.
PROBLEM: T files a case against me for recovery of a piece of land.
According to her, she is the owner of the land which Im occupying. Now, I
file my answer, and then I said, T, I spent a lot of money for necessary
expenses to preserve the land. You are also liable to reimburse me for the
expenses for the necessary improvements I introduced on the land. Under
the law on Property, a defendant or possessor is entitled to reimbursement
for necessary improvements and expenses. So she is trying to recover the
piece of land, I am now asking her to reimburse me for all necessary
expenses that I spent on the land.
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Q: Is my counterclaim arising out of or connected with the subject matter

of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the counterclaim
is compulsory.
If the counterclaim, then, did not arise out of or is not connected with the
transaction or occurrence constituting the subject matter of the opposing
partys concern, the counterclaim must be permissive in nature.
PROBLEM: T files a case against me for recovery of a piece of land. My
counterclaim against her is damages arising from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.
Importance of determining whether the claim is compulsory or
permissive
If the counterclaim is compulsory, the defendant is obliged under
the law to raise it as a counterclaim in the action where he is being
sued. If he fails to invoke it, it is barred forever (Rule 9 Section 2).
If the counterclaim is permissive, the defendant has a choice of
raising it as a counterclaim in the case filed against him or he may
decide to file another action against the plaintiff, raising it as his
cause of action. It is permitted but not obliged.
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim,
not set up barred. - A compulsory counter-claim or a crossclaim, not set up shall be barred. (4a)
Let us try to apply that principle to the case cited.
PROBLEM: V files a case against me for damages arising from vehicular
collision. Her car is damaged, my car is damaged. In my answer, I denied
negligence but I did not claim from her the damage to my vehicle. After the
trial, court found the plaintiff at fault. So, the complaint of V. This time I will
file a case against her to recover damages for the damage to my car since I
was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action
as a counterclaim as it is compulsory.

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Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION

PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE
JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an
indispensable party who is, lets say, abroad, and therefore, the court cannot
acquire jurisdiction over him, if I dont allege it as counterclaim in my
answer, I will not be barred from filing a separate action.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
NATURE THEREOF. Xxx except that in an original action before the
RTC, the counterclaim may be considered compulsory regardless of
the amount.
Rules:
1. A counterclaim before the MTC must be within the jurisdiction of the
said court, both as to the amount and nature thereof.
2. In an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount.
3. However, the nature of the action is always material in the RTC
such that unlawful detainer cannot be set up as counterclaim
thereat.
4. If a counterclaim is filed in the MTC in excess of its jurisdictional
amount, the excess is considered waived (Agustin v. Bacalan GR No. 46000,
March 18, 1985)
Different from:
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy where a
counterclaim is beyond the jurisdiction of the MTC is to set off the claims and
file a separate action to collect the balance.
Q: I will file a case against you for forcible entry. I want to recover a piece
of land. Where is the jurisdiction of that case?
A: MTC.
Review: In the Law on Property, even if you are a possessor in bad faith,
you are entitled to reimbursement for necessary expenses. The theory there
is, even if he is a possessor in bad faith, the expenses redounded to the
benefit of the land owner. Anyway, you will spend them just the same as the
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land owner will have to spend for them. So it will not be fair if he is not
reimbursed. Thats our premise.
PROBLEM: The defendant would like to claim for reimbursement for the
necessary expenses that he spent in my lot. The case I filed against you is
forcible entry in the MTC. Your necessary expenses amount to P350,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry
case?
A: NO.
Q: Does it arise out of or connected with the transaction which is the
subject matter of the main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P350,000 amount for the
necessary expenses. This time, that is the missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He cannot use that
as a counterclaim for the forcible entry case because the MTC has no
jurisdiction on a counterclaim where the amount is over P300,000.00.
I will reverse the problem:
PROBLEM: The plaintiff filed against the defendant an action for accion
publiciana recovery for a piece of land where the value of the property is P1
million. So the case should be filed in the RTC. Now, the defendant is
claiming for the reimbursement of the improvements thereon (necessary
expenses) amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion
publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of the MTC.
This time, the amount for the counterclaim is below the jurisdiction of the
RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: except that in
an original action before the RTC, the counterclaim may be considered
compulsory regardless of the amount. This means that the main action is
accion publicianaRTC. The counterclaim is reimbursement for necessary
expenses with arose out of the same land. Normally, the RTC cannot try that
but the answer to this question is YES.
The RTC can award a claim for damages even though the claim is below
its jurisdiction. The principle is: Since the counterclaim is compulsory,
jurisdiction over the main action automatically carries with it jurisdiction over
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the compulsory counterclaim. The compulsory counterclaim is merely

incidental to the main action. Jurisdiction of the RTC over the main action
necessarily carries with it jurisdiction over the compulsory counterclaim
which is merely ancillary.
If the main action is with the MTC, it cannot try the counterclaim with the
RTC. It is beyond its jurisdiction. It is not covered by the exception. But if it is
the main action which is within the jurisdiction of the RTC, it can try a
counterclaim which
is below its jurisdiction provided it arose out or is connected with the
transaction.
That exception is not written in the prior rules but it is a recognized
exception laid down by the SC which is now written down in the law. In the
case of
MACEDA vs. COURT OF APPEALS
176 SCRA 440
HELD: The jurisdiction of the MTC in a civil action for sum of
money is limited to a demand that does not exceed P100,000 (now
P300,000) exclusive of interest and costs. A counterclaim beyond
its jurisdiction and limit may be pleaded only by way of
defense to weaken the plaintiffs claim, but not to obtain
affirmative relief.
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE
TIME HE FILES HIS ANSWER.
In other words, the claim has already matured either before or at the time
of the filing of the Answer.
Compulsory and Permissive Counterclaim compared:
1. A compulsory counterclaim arises out of or is necessarily connected
with the transaction or occurrence that is the subject matter of the other
party's claim, while a permissive counterclaim is not;
2. A compulsory counterclaim does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction while
a permissive counterclaim may require such;
3. A compulsory counterclaim is barred if not set up in the action, while a
permissive counterclaim is not;

18

4.A compulsory counterclaim need not be answered, no default, while a

permissive counterclaim must be answered otherwise the defendant can be
declared in default.
Effect of failure to answer a compulsory counterclaim
A plaintiff who fails or chooses not to answer a compulsory counterclaim
may not be declared in default, principally because the issues raised
in the counterclaim are deemed automatically joined by the
allegations of the complaint (Gojo v. Goyala, GR No. 26768, Oct. 30,
1970)
General rule:
A compulsory counterclaim not set up in the answer is deemed barred.
Exceptions:
1. if it is a counterclaim which either matured or was acquired by a party
after serving his answer it may be pleaded by filing a supplemental
answer or pleading before judgment (Sec. 9 R 11);
2. When a pleader fails to set-up a counterclaim through oversight,
inadvertence, excusable negligence, or when justice requires, he may, by
leave of court, set up the counterclaim by amendment of the
pleading before judgment (Sec. 10, R 11).
Motion to
remedies

dismiss

and

compulsory

counterclaim

incompatible

The filing of a motion to dismiss and the setting up of a compulsory

counterclaim are incompatible remedies. In the event that a defending party
has a ground for dismissal and a compulsory counterclaim, he must choose
only one remedy. If he decides to file a motion to dismiss, he cannot set up
his counterclaim. But if he opts to set up his counterclaim, he may
still plead his ground for dismissal as an affirmative defense in his
answer.
COUNTERCLAIMS IN CRIMINAL CASES PROHIBITED
last paragraph of Section 1, paragraph [a], Rule 111 of the 2000 Revised
Criminal Procedure:
No
counterclaim,
cross-claim
or
third-party
complaint may be filed by the accused in the criminal
case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil
action.
19

CROSS-CLAIM
Sec. 8. Cross-claim. A cross-claim is any claim by
one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the
party against whom it is asserted is or may be liable
to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.(7)
A cross claim is a claim by one party against a co-party. It may be a claim
by defendant against his co-defendant arising out of the subject matter of
the main action.
Limitations on Cross-Claim
1 Must arise out of the subject matter of the complaint or counterclaim;
2 Can be filed only against a co-party; and
3 Is proper only when the cross claimant stands to be prejudiced by the
filing of the action against him.
Purpose
To settle in a single proceeding all the claims of the different parties in the
case against each other in order to avoid multiplicity of suits (Republic vs.
Paredes, GR No. L-12548, May 20, 1960).
Examples:
In an action for damages against the judgment creditor and the Sheriff for
having sold real property of the plaintiff, the Sheriff may file a cross-claim
against the judgment creditor for whatever amount he may be adjudged to
pay the plaintiff.
In an action against a co-signer of a promissory note one of whom is
merely an accommodation party, the latter may file a cross-claim against the
party accommodated for whatever amount he may be adjudged to pay the
plaintiff.
J and P are solidary debtors for the sum of P100,000.00 because they signed
a promissory note in favor of D to collect the sum of P100,000.00. However,
although J signed the promissory note, he did not get a single centavo.
Everything went to P. Both of them are now sued. According to J, Actually
there is a possibility that I will pay the P100,000.00 to Dean when actually I
20

did not even get a single centavo out of it. Everything went to P! Therefore,
J will now file a case against P where he will allege that if J will be held liable
to D, P will reimburse him (J). So, J will also file a claim in the same action
against P.
Now, the claim filed by J against his co-defendant P is called a CROSSCLAIM where J is called defendant in the case filed by D and a cross-claimant
against P. P is also the defendant in the case filed by D and a cross-defendant
with respect to the cross-claim filed by J. So that is another case, which a
defendant is filing against another defendant.
Take note that the cross-claim of J against P is merely an off-shoot of the
case filed by D against J and P. Meaning, it arises out of the same transaction
or occurrence that is the subject matter of the case filed by D against them.
PROBLEM: Suppose D files a case against J and P to collect a promissory
note signed by J and P and J alleges in his cross claim, Well, since we are
already here, I also have a claim against P for damages arising from a
vehicular collision.
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the
complaint of D against J and P. A counter-claim must always arise out of a
transaction or occurrence that is the subject matter of the main action.
Distinctions between a COUNTERCLAIM and a CROSS-CLAIM.
A: The following are the distinctions:
1 A COUNTERCLAIM is a complaint by the defendant against the
plaintiff, whereas, A CROSS-CLAIM is a claim by a defendant
against a co-defendant;
2.) The life of the CROSS-CLAIM depends on the life of the main
action. A cross-claim is merely a consequence of the case filed by
the plaintiff against the defendants. No main action, no cross-claim
(RUIZ, JR. vs. CA, infraA cross-claim could not be the subject of
independent adjudication once it lost the nexus upon which its life
depended. The cross-claimants cannot claim more rights than the
plaintiffs themselves, on whose cause of action the cross-claim
depended. The dismissal of the complaint divested the crossclaimants of whatever appealable interest they might have had
before and also made the cross-claim itself no longer viable)
Whereas, In a COUNTERCLAIM, you can kill the main action, still the
counterclaim survives.
3.)A COUNTERCLAIM may be asserted whether or not it arises out of
the same transaction or occurrence that is the subject matter of the
21

action, whereas, A CROSS-CLAIM must always arise out of the same

transaction or occurrence that is the subject matter of the action.
Effect if cross-claim not set up; exception
If a cross-claim is not set up it is barred: exceptions or when cross-claim is permissive1. when it is outside the jurisdiction of the court;
2. if the court cannot acquire jurisdiction over third parties whose
presence is necessary for the adjudication of said cross-claim. In which case,
the cross-claim is considered permissive;
3. cross-claim that may mature or may be acquired after service of the
answer (Riano 2007, p. 285)
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
Sec. 9. Counter-counterclaims and counter-crossclaims. A counterclaim may be asserted against an
original counter-claimant.
A cross-claim may also be filed against an
original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim
and counter-cross-claim. The concept of counter-counter-claim is not new. As
a matter of fact, that was asked in the bar years ago.
EXAMPLE: C filed against you an action to collect a loan. You filed a
counterclaim against her to recover a piece of land. Of course, she has to
answer your counterclaim. But she will say, Actually you have been
molesting me with your claim when actually you have no right over my
land. So, she files an injunction to stop you from molesting her. In other
words, based on your counter-claim against her to recover my land, she will
file a counterclaim to stop you from molesting her. In effect, there is
counterclaim to a counterclaim.
COUNTER-CROSS-CLAIM.
REPLY
Sec. 10. Reply. A reply is a pleading, the office or
function of which is to deny, or allege facts in denial
or avoidance of new matters alleged by way of defense
in the answer and thereby join or make issue as to such
new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed
controverted.
22

If the plaintiff wishes to interpose any claim

arising out of the new matters so alleged, such claims
shall be set forth in an amended or supplemental
complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an
unpaid loan. D files his answer and raises a new matter, affirmative defense.
According to the defendant, the obligation is already paid. Plaintiff said that
you have paid the other loan. In other words, the plaintiff would like to deny
or dispute the defendants affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?
A: Yes, that pleading is called a REPLY.
Q: How do you classify a reply?
A: It is a responsive pleading because it is the response of the plaintiff to
the affirmative defense raised in the defendants answer.
An answer is a response to the complaint and the reply is a response to
the answer.
Q: Assuming that you would like to answer my reply, what pleading would
you file?
A: None. That is the last pleading. So, reply is considered as the last
pleading.
Effect of failure to file a reply
Q: Suppose I filed a complaint, you filed an answer invoking payment. I
failed to reply. What is the effect if the plaintiff fails to reply? Is he admitting
the correctness of the defense?
A: No. As a general rule, the failure to file a reply has no effect. Section 10
says that if a party does not file such reply, all the new matters alleged in the
answer are deemed controverted. Meaning, all the affirmative defenses
raised in the answers are automatically denied.
So, whether you file a reply or not, the defenses are deemed
automatically disputed. The filing of a reply is OPTIONAL.
Exceptions:
1. Where the answer is based on an actionable document (Sec. 8 R 8);
and
2. To set up affirmative defenses in the counterclaim (Rosario vs. Martinez,
GR No. L-4473, Sept. 30, 1952)
Note:
23

Only allegations of usury in a Complaint to recover usurious interest are

deemed admitted if not denied under oath. Hence, if the allegation of usury
is contained in an answer it is not necessary for the plaintiff to file a reply
thereto in order to deny that allegation under oath. (Regalado, p. 146)
A reply should not be confused with the answer to a counterclaim, which
is also filed by the plaintiff.
Distinctions between ANSWER TO COUNTER-CLAIM and REPLY:
A: The following:
1 A REPLY is a response to the defenses interposed by the
defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of
action by the defendant against the plaintiff;
2 The filing of a REPLY is generally optional, whereas
The filing of an ANSWER TO A COUNTERCLAIM is generally
mandatory under Rule 11 because if the plaintiff fails to file an
answer to the counterclaim, he will be declared in default on the
counterclaim.
OUTLINE OF FLOW OF PLEADINGS
PLAINTIFF
1.
2.

Complaint

3.

a.) Reply to answer

b.)
Answer
counterclaim

DEFENDANT
a.) Answer
b.) Counterclaim
to

4.

Reply
to
answer
counterclaim

to

F. THIRD (FOURTH, ETC.) PARTY COMPLAINT

Sec. 11. Third, (fourth, etc.) - party complaint. A
third (fourth, etc.) party complaint is a claim that a
defending party may, with leave of court, file against
a person not a party to the action, called the third
(fourth, etc.) party defendant, for contribution,
indemnity, subrogation or any other relief, in respect
of his opponent's claim. (12a)
24

THIRD PARTY COMPLAINT is the procedure for bringing into a case a third
person who is not a party to the case to enforce against such 3 rd party a
right for contribution, indemnity, subrogation or any other relief, in
respect of the plaintiff-s claim.
The third-party complaint is actually independent of and separate and
distinct from the plaintiffs complaint. Were it not for this provision of the
Rules, it would have to be filed independently and separately from the
original complaint by the defendant against the third party.
The purpose of a third-party complaint is to enable a defending
party to obtain contribution, indemnity, subrogation or other relief
from a person not a party to the action.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan
when there are two solidary debtors and one of them is compelled to pay
everything so that defendant will drag into the picture the co-debtor for
contribution or indemnity. If the two of them were sued as defendants, all
one has to do is to file a cross-claim against his co-defendant. BUT since
only one is sued, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right.
THERE MUST BE LEAVE OF COURT, unlike counterclaim or
cross-claim, where you do not need any motion or leave of court.
Similarity between a cross-claim and 3rd party complaint
There is a close relationship between a cross-claim and a third-party
complaint because a cross-claim must arise out of the subject matter of the
main action. A third-party complaint must be also related to the main action.
It cannot be a cause of action, which has no relation to the main action.
There is always a connection between the main complaint and the
third-party complaint because the condition is contribution,
indemnification, subrogation and any other relief in respect to your
opponents claim. There is always a relation between the third partycomplaint and the main complaint against you.
EXAMPLE: The plaintiff files a case against the surety and the principal
debtor, so both of them are defendants, and the surety seeks reimbursement
for whatever amount he may be compelled to pay the plaintiff. What kind of
pleading would he file against his co-defendant (the principal debtor)?
CROSS-CLAIM.
25

BUT if the plaintiff files a case ONLY against the surety, because anyway
the principal debtor is not an indispensable party and the surety would like to
seek reimbursement from the person who benefited from the loan, he cannot
file a cross-claim against anybody because he is the lone defendant. It is
possible for him to just file an answer. If he loses and pays the plaintiff, then
he will file another case against the principal debtor for reimbursement.
But if he wants everything to be resolved in the same case, what kind of
pleading will he file? He must resort a THIRD-PARTY COMPLAINT and implead
the principal debtor.

CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and
they shared the money 50-50. When the debt fell due, the creditor filed a
case against one of them. So, one of them is being made to pay the
P100,000. Not only his share but also his co-solidary debtor. So if I am the
one liable when actually my real liability is only 50,000. What will I do? I will
file a third party complaint against my co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the
injured party files an action for damages against Andrew only, Andrew may
file a third-party complaint against Carlo for contribution, their liability being
solidary (Article 2194, New Civil Code)

INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor.
But actually the entire amount went to you and none for me. When the note
fell due, I was the one sued. So I will file a third-party complaint against you
for indemnity. You have to return to me every centavo that I will pay the
creditor.

26

Example #2: A surety sued for recovery of debt by the creditor may file a
third-party complaint against the principal debtor for indemnity. (Article
2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your obligation is
transferred to me.
EXAMPLE: Where a house is leased by a lessee and he subleased the
property to a third person who is now occupying the property. In effect, the
sub-lessee stepped into the shoes of the original lessee. If the property is
damaged and the lessor sues the lessee for damages to his leased property,
the lessee or sub-lessor can file a third-party complaint and have the sublessee for subrogation because actually, you stepped into the shoes when
you occupied the leased property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here
comes Mr. Dee filing a case against me to claim ownership of the land. But I
bought it from Mr. Cruz who warranted that he is the real owner. So I will now
file third-party complaint against Mr. Cruz to enforce his warranty warranty
against eviction. (Article 1548, New Civil Code)
Why leave of court? Tests for the court to determine propriety of a
3rd-party complaint:
CAPAYAS vs. COURT OF FIRST INSTANCE
77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of
a third-party complaint. In order for it to be allowed, it must pass
one of them. That is the reason when you file it, you need the
permission of the court to determine whether it is proper or not and
the original plaintiff may object to the propriety of the third-party
complaint.
There are the FOUR TESTS (any one will do):
1 A third-party complaint is proper if it arises out of the same
transaction on which plaintiffs complaint is based, or although
arising out of another or different transaction, is connected with the
plaintiff's claim.

27

EXAMPLE: A creditor sued only one solidary debtor. So you can

file a third-party complaint for contribution. Anyway, there is only
one loan and our liability arises out of the same promissory note.
2. A third-party complaint is proper if the third-partys complaint,
although arising out of another transaction, is connected with the
plaintiffs claim.
EXAMPLE: The car owner is sued for culpa aquiliana for
damages arising from vehicular collision and he files a third-party
complaint against the insurance company for indemnity based
on the contract of insurance. So it is connected with plaintiffs
claim, and that is precisely the purpose of my insurance
coverage.
3.Whether the third party defendant would be liable to the original
plaintiff or to the defendant for all or part of the plaintiff's claim against
the original defendant. Although the third party defendant's liability
arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric
subleased it to Rudolph. If Roys property is damaged, Roy will
sue Eric. But Eric will also sue Rudolph. The sub-lessor has the
right to file a third-party complaint against the sub-lessee for the
damaged leased property, which is now occupied by the sublessee. The third-party defendant Rudolph would be liable to
plaintiffs (Roys) claim. Rudolph will be liable to Roy for Roys
claim against Eric although the liability of Rudolph arises out of
another transaction (Sub-lease contract)
4.Whether the third party defendant may assert any defense, which
the third party plaintiff has or may have against plaintiffs claim.
EXAMPLE: A is a registered owner of a car and then sold it to
C. C then is the actual owner. However, C did not register the
sale to the LTO. The registered owner is still A although he is no
longer the real owner. While C was driving that car it bumped
the car of B. B researched the owner of the car at LTO and it is A.
So B filed a case against A who had neither participation nor
knowledge of the collision but is liable under the law because he
is the registered owner. Of course, when A got the complaint, he
denied participation and knowledge and alleged that he is no
longer the owner of the car.
So obviously, A arrived at the conclusion that it is C who
figured in the collision. A filed a third-party complaint against C
28

because he is the real owner. When C got the third-party

complaint, and because he knows the story, in fact he was the
one driving, he directly contested the allegations of B and
answered the same. Meaning, instead of A fighting B, C fought B
directly. C answered that it was B who was at fault. So here is a
situation where B sues A, who, in turn sues C who fought B
instead, as if he is the real defendant, then the third party
complaint must be proper. It must be related.
Take note that there is a close similarity between a third-party
complaint and a cross-claim because as we have learned, a crossclaim must also be related to the same action.
SAMALA vs. VICTOR
170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding on a
passenger jeep owned by Tato, the jeep was bumped by the truck of
Lewee, injuring Philip. Philip filed a case for damages arising from breach
of contract against Tato. Tato filed a third-party complaint against Lewee.
After trial, the court found that Tato has not at fault. The fault is entirely
against Lewee . So the action against Tato was dismissed, but the court
held that Lewee be directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is
liable to Philip because Philip did not sue me (Lewee), Bakit ako ang maliable hindi naman ako ang dinemanda ni Philip? So procedurally, I am
liable to Tato, Tato is liable to Philip.
ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to
Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is
liable to Tato. But Lewee can be made liable to Philip, or Lewee can be
made liable to both Philip and Tato because that is covered by the phrase
OR ANY OTHER RELIEF so broad that it cover a direct liability of a third
party defendant to the original plaintiff.
ISSUE #2: How can the court award damages to Philip based on the
theory of culpa aquiliana when his complaint is based on culpa
contractual? Can Lewee be held liable for culpa-contractual?
HELD: YES. That is also possible because the primary purpose of this rule
is to avoid circuitry of action and to dispose of in one litigation, the entire
subject matter arising from a particular set of fact it is immaterial that the
third-party plaintiff asserts a cause of action against the third party
defendant on a theory different from that asserted by the plaintiff against
the defendant. It has likewise been held that a defendant in a contract
29

action may join as third-party defendants those liable to him in tort for the
plaintiffs claim against him or directly to the plaintiff.
Another interesting case, which is
abovementioned case, is the 1989 case of

to

be

compared

with

the

SHEAFER vs. JUDGE OF RTC OF OLONGAPO CITY

167 SCRA 386
NOTE: This case although it refers to third-party complaint is
related to criminal procedure. This is similar to the case of JAVIER
where the issue is, is there such a thing as a counterclaim in a
criminal case where the offended party did not make a reservation.
In SHAFER, is there such a thing as a third-party complaint in a
criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped
another car driven by T. T filed a criminal case against S for physical
injuries arising from reckless imprudence. T did not make any
reservation to file a separate civil action. So obviously, the claim for
civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party
complaint against the insurance company insofar as the civil liability
is concerned. The insurance company questioned the propriety of d
third-party complaint in a criminal case, because according to the
insurance company, the third-party complaint is entirely different
from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a
criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint in
a criminal case because an offense causes two classes of injuries
the SOCIAL and the PERSONAL injury. In this case, the civil aspect
of the criminal case is deemed impliedly instituted in the criminal
case. Shafer may raise all defenses available to him in so far as the
criminal and civil aspects are concerned.
Shafers claim of
indemnity against the insurance company are also the claim by the
victim in the criminal claim. Therefore Shafers claim against the
insurance company is related to the criminal case. So similar to
Javier that an accused may also file a compulsory counterclaim in a
criminal case when there is no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
30

The SHAFER ruling has to be set aside for the meantime because
there is no such thing as third-party complaint in criminal cases
now.
In other words, forget it in the meantime. Also, forget
counterclaims in criminal cases even if they arose out of the main
action.
This case refers to JAVIER on whether or not there is such a thing
as a compulsory counterclaim in criminal cases. SC said, Huwag
muna samok! If we will allow it in criminal cases it will only
complicate and confuse the case. The attention might be divested
to counterclaims or cross-claims or third-party complaints, etc.
HELD: The trial court should confine itself to the criminal aspect
and the possible civil liability of the accused arising out of the
crime. The counter-claim (and cross-claim or third party complaint,
if any) should be set aside or refused cognizance without prejudice
to their filing in separate proceedings at the proper time.
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.
25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting
to P350,000. So it was filed in RTC. Rina filed a third-party complaint
against ConCon Insurance Company for indemnity insurance but the
maximum insurance is only P50,000. The insurance company
moved to dismiss on the ground that the court has no jurisdiction
because third-party complaint is only for P50,000 which is supposed
to be within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party
complaint is only incidental. The third-party complaint need not be
within the jurisdiction of the RTC where the principal action is
pending because the third-party complaint is really a continuation
and an ancillary to the principal action. If the court acquires
jurisdiction over the main action, automatically, it acquires
jurisdiction over the third-party complain which is mainly a
continuation of the principal action.
Now, the same situation happened in another case. The case of

31

EASTERN ASSURANCE vs. CUI

105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of
Cebu City. Carol filed a case before the RTC of Davao City against
Cathy. Cathy files a third-party complaint against Joy, a resident of
Manila. Is the venue proper?
HELD: The venue is proper because the venue of the main action
is proper. So automatically third-party complaint is also proper. The
third-party has to yield to the jurisdiction and venue of the main
action.
Now of course, if theres such a thing as 3rd party complaint, there is also
a 4th, 5th, 6th or 7th complaint. That is possible but everything is with
respect to his opponents claim.
EXAMPLE:
A
A files a
complaint
against B

B
B files a 3rd
party
complaint
against C

C
C files a 4th
party
complaint
against D

D
E
D files a 5th party
complaint against E

As car was bumped by B. But B contented that the reason that he

bumped As car was because he was bumped by C and the same goes to C,
D, E. B then files a 3rd party complaint against C. C files a 4th party
complaint against D. D files a 5th party complaint against E. Meaning,
pasahan, ba. They will throw the liability to the one who did it. That is a
good hypothetical example of how a fourth, fifth, sixth party complaint can
come into play.
Rule on Venue and Jurisdiction Inapplicable
Jurisdiction over the third-party complaint is but a continuation of the
main action and is a procedural device to avoid multiplicity of suits. Because
of its nature, the proscription on jurisdiction and venue applicable to ordinary
suits may not apply. (Eastern Assurance vs. Cui, 105 SCRA 622 [1981])
Where the trial court has jurisdiction over the main case, it also
has jurisdiction over the third-party complaint, regardless of the
amount involved as a third-party complaint is merely auxiliary to an
is a continuation of the main action (Rep. vs. Central Surety and
Insurance Co. GR No. L 27802, Oct. 26, 1968)
32

Grounds for Denial of Third-Party Complaint

a When allowance would delay resolution of the original case or
when the third-party defendant could not be located; and
b When extraneous matters to issue of possession would unnecessarily
clutter a case of forcible entry.(del Rosario v. Jimenez 8 SCRA 549)
Summons on third, fourth, etc. party defendant must be served
for the court to acquire jurisdiction over his person, since he is not
an original party.
A third-party complaint is not proper in an action for declaratory
relief (Comm. of Customs vs. Cloribel, GR No. L - 21036, June 30, 1977)
Sec. 12. Bringing new parties. - When the presence
of parties other than those to the original action is
required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the
court shall order them to be brought in as defendants,
if jurisdiction over them can be obtained.
Distinguished from a Third-Party Complaint
A third party complaint is proper when not one of the third-party
defendants therein is a party to the main action. If one or more of the
defendants in a counterclaim or cross-claim is already a party to the action,
then the other necessary parties may be brought in under this section.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS
183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its
gasoline dealer. Sapugay filed an answer and interposed a
counterclaim for damages against Mobil and included Cardenas (the
manager of Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the
counterclaim is proper where he is not a plaintiff in the Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that
the defendant cannot by a counterclaim bring into the action any
claim against persons other than the plaintiff, admits of an
exception under this provision (Section 12) meaning, if it is
necessary to include a 3rd person in a counterclaim or cross-claim,
33

the court can order him to be brought in as defendants. In effect,

the bringing of Cardenas in the case is sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN
198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general)
represented the government for PCGG. The case arose out of PCGG
cases wherein Enrile was sued for accumulation of his ill-gotten
wealth. Enrile filed an answer to the complaint. Enrile contends that
the case is harassment suit whose mastermind was the Solicitor
General himself. Enrile files a counterclaim against Chavez. (Enriles
lawyer maybe well aware of the Sapugay case the one sued is the
lawyer.) Chavez questioned such counterclaim contending that he
was not a plaintiff. Sandiganbayan denied such contention.
HELD: The inclusion of plaintiffs lawyer is improper.
To allow a counterclaim against a lawyer who files a complaint
for his clients, who is merely their representative in court and not a
plaintiff or complainant in the case would lead to mischievous
consequences. A lawyer owes his client entire devotion to his
genuine interest, warm zeal in the maintenance and defense of his
rights and the exertion of his utmost learning and ability. A lawyer
cannot properly attend to his duties towards his client if, in the
same case, he is kept busy defending himself.
Q: Is the SC suggesting that a lawyer who sued in a harassment case can
get away with it? Does that mean to say that the lawyer is immune from
suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from
damage suits. However, when he acts in the name of the client, he should
not be sued in a counterclaim in the very same case where he has filed only
as a counsel and not as party. Only claims for alleged damages or other
causes of action should be filed in a separate case. Thus, if you feel that the
lawyer is acting maliciously, you file a complaint but in a separate case.
Thats why the case of Sapugay should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party
complaint. - A third (fourth, etc.)-party defendant may
allege in his answer his defenses, counterclaims or
cross-claims, including such defenses that the third
34

(fourth, etc.)-party plaintiff may have against the

original plaintiff in respect of the latter's claim
against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
B files a 3rd party complaint against C
C
A vs. B; B vs. C. Normally, B will defend himself against the complaint of A
and C will defend himself in the complaint of B. That is supposed to be the
pattern. Normally, C does not file a direct claim against A. But the law allows
C in defending himself, to answer the claim of A. The law allows him to file a
direct counterclaim against A.
If C has the right to frontally meet the action filed by A meaning, C will
fight A directly if C has the right to assert any defense which B has against
A and even for C to litigate against A, then it must be a proper third party
complaint. That has happened several times.
EXAMPLE: B owns a car, which was already sold to C. The trouble is that B
never registered the transaction. On the record, B is still the registered
owner. Then C, while driving the car, meets an accident and injures A. When
A looked at the record, the owner is B. So A files a case against B. So B will
file a third party complaint against the real owner (C). Now, C can frontally
meet the complaint filed by A. That is the best example where you have the
right against the original plaintiff or even assert a counterclaim against him.
As a matter of fact, that last test is now incorporated as a new provision
(Section 13).
In the case of:
SINGAPORE AIRLINES vs. COURT OF APPEALS
243 SCRA 143 [1995]
FACTS: A filed a case against B. B filed a third party complaint
against and C who wants to frontally meet the main complaint filed
by A

35

HELD: If that is your purpose, you have to file two (2) answers you
file an answer to the third party complaint and you file a second answer to
the main complaint filed by A.
A third-party complaint involves an action separate and distinct
from, although related to, the main complaint. A third-party
defendant who feels aggrieved by some allegations in the main
complaint should, aside from answering the third-party complaint,
also answer the main complaint.
Normally, C answers the 3rd party complaint of B and does not answer to
the complaint of A. But according to SINGAPORE case, if C feels aggrieved by
the allegations of A, he should also answer the main complaint of A.
Practically, he shall answer the 3rd party complaint and the main complaint.
Reviewer
1. Kinds of Pleadings (Rule 6)
What is a pleading?
Written statements of the respective CLAIMS and DEFENSES of the parties submitted to
the court for appropriate judgment.
Pleadings allowed under the Rules of Court
a. Complaint
b. Answer
c. Counterclaim
d. Cross-claim
e. Reply
f. Third party (fourth party, etc.) complaint (Rule 2, Sec. 6)
g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3)
a. Complaint
Rule 6, Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the complaint.
b. Answer
1. What is an answer?
An answer is a pleading in which a defending party sets forth his defenses (Rule 6, Sec. 4). It
may be an answer to the complaint, third party (fourth party, etc.) complaint, counterclaim, or
cross-claim.
Time to Plead
36

a. Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint fifteen (15) days
after service of summons, unless a different period is fixed by the court (Rule 11, Sec. 1)
However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file
his answer within the balance of he period provided by Rule 11 to which he was entitled at the
time of serving his motion, but not less than five (5) days in any event, computed from his
receipt of the notice of the denial. .
b. Answer of a defendant foreign private juridical entity
(1) when summons is served upon a resident agent fifteen (15) days after service of
summons;
(2) when summons is served on the government official designated to receive the same
thirty (30) days from receipt by the latter of the summons.
c. Answer to Amended Complaint, Amended Counterclaim, Amended
Cross-Claim and Amended Third-Party (Fourth-Party, etc.) Complaint:
(1) amended complaint was filed as a matter of right (Rule 10, Section 2) fifteen (15) days
after being served with a copy thereof; and
(2) amended complaint was filed with leave of court (Rule 10, Section 3) ten (10) days from
notice of order admitting the amended complaint.
Strict Observance of the Period
While the rules are liberally construed, the provisions on reglementary periods are
strictly applied for they are deemed indispensable to the prevention of needless delays and
necessary to the orderly and speedy discharge of judicial business.
Strict compliance with said periods is mandatory and imperative.
(1) Negative defenses
SPECIFIC DENIAL of the material fact or facts alleged in the pleading or the claimant
essential to his cause of action. (Rule 6, Section 5)
(2) Negative pregnant
A negative pregnant is a form of negative expression which carries with it in affirmation or at
least an implication of some kind favorable to the adverse party. It is a denial pregnant with an
admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying
or modifying language and the words of the allegation as so qualified or modified are literally
denied, it has been held that the qualifying circumstances alone are denied while the fact itself is
admitted. (Guevarra vs. Eala, A.C. No. 7136, August 1, 2007)
A negative pregnant (sometimes called a pregnant denial) refers to a denial which
implies its affirmative opposite by seeming to deny only a qualification of the allegation
and not the allegation itself. For example, "I have never consumed shabu while on duty"
might imply that the person making the statement had consumed shabu on other
occasions, and was only denying that he had done so while on duty.
(3) Affirmative Defenses
Allegation of a NEW MATTER which, while hypothetically admitting the material allegations in
37

the pleading of the claimant, would nevertheless PREVENT 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 matter by
way of confession and avoidance. (Rule 6, Sec. 5).
Note that some of these grounds are also grounds for motion to dismiss.
What are the two kinds of defenses that may be set forth in the answer?
1. Affirmative defenses allegation of a new matter which while hypothetically admitting the
material allegations in the pleading would nevertheless prevent or bar recovery by the claiming
party. It is in the nature of confession and avoidance
2. Negative defenses specific denial of the material facts or facts alleged in the pleading
essential to establish the plaintiffs cause of action (Rule 6, Sec. 5).
c. Counterclaims
A counterclaim is any claim which a DEFENDING PARTY may have against an opposing party.
(Rule 6, Sec. 6)
(1) Compulsory counterclaim
What is a compulsory counterclaim?
(1) One which, being cognizable by the regular courts of justice,
(2) ARISES OUT OF or is CONNECTED WITH the transaction or occurrence constituting the
subject matter of the opposing partys claim and
(3) does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction.
(4) Such a counterclaim must be within the jurisdiction of the court both as to the amount
and the nature thereof,
(5) except that in an original action before the Regional Trial Court, the counterclaim may be
considered compulsory regardless of the amount (Rule 6, Sec. 7), meaning its amount need not
be under RTC jurisdiction.
Examples: (1) damages claimed to have been suffered as a consequence of the action; (2)
a claim for attorneys fees; (3) in a possessory action, the defendants claim
of ownership
(2) Permissive counterclaim
What is a permissive counterclaim?
a. One which is not barred even if not set up and which has NO LOGICAL RELATION with
the transaction or occurrence that is the subject matter of the opposing
partys claim, or
b. even when there is such a connection, the court has no jurisdiction to entertain the claim or it
requires for its adjudication the presence of third persons of whom the court cannot acquire
jurisdiction (National Marketing Corp. vs. Federation of United Namarco
Distributors, Inc., 49 SCRA 248 [1973]).
What is the difference between permissive and compulsory counterclaims?
38

a. In a permissive counterclaim, the docket and other lawful fees should be paid and the
same should be accompanied by a certificate against forum shopping and certificate to
file action issued by the proper Lupon Tagapamayapa. It should also be answered by
the claiming party. It is NOT BARRED even if not set up in the action.
b. In a compulsory counterclaim, no docket fee is paid and the certificates mentioned
above are not required. If it is not raised in the answer, it shall be BARRED.(Rule 9,
Sec. 2)
Examples of compulsory and permissive counterclaims:
A filed a suit for collection of P350,000 against B in the RTC of Cebu City. Aside from alleging
payment as a defense, B in his answer, set up counterclaims for P120,000 as damages and
P25,000 as attorneys fees as a result of the baseless filing of the complainant, as well as
for P230,000 as the balance of the purchase price of the 28 units of refrigerators he sold to A.
The RTC has jurisdiction over the compulsory counterclaims in the total amount of
P145,000 because in an original action before the RTC, the counterclaim may be considered
COMPULSORY regardless of amount (Rule 6, Sec. 7, 2nd sentence). This means that even a
compulsory counterclaim not exceeding P300,000 or P400,000 may be filed in the RTC.
But the RTC has no jurisdiction over the permissive counterclaim of P230,000 because it
does not exceed P300,000.
In an action for recovery of land, the counterclaim for reimbursement of the value of the
improvements is in the nature of a compulsory counterclaim in . Thus, the failure by private
respondents to set it up bars their right to raise it in a subsequent litigation. The rule on
compulsory counterclaim is designed to achieve resolution of the whole controversy at one time
and in one action to avoid multiplicity of suits (Baclayon vs. Court of Appeals, G.R. No. 89132,
February 26, 1990)
N.B.: (1) A compulsory counterclaim that merely reiterates special defenses which
are deemed controverted even without a reply, or raises issues which are deemed
automatically joined by the allegations of the complaint need not be answered.
However, a compulsory counterclaim which raises issues not covered by the complaint
should be answered.
(2) If the defendant has a compulsory counterclaim, he should not file a motion to
dismiss but an answer with a counterclaim, with the ground for the motion to dismiss
being asserted as an affirmative defense pursuant to Rule 16, Sec. 6. The compulsory
counterclaim is deemed waived when defendant filed a motion to dismiss the
complaint instead of answering the same (Financial Building Corp. vs. Forbes Park
Association, Inc., G.R. No. 133119, August. 17, 2000).
(3) If the counterclaim is based on an ACTIONABLE DOCUMENT attached to or
copied in the counterclaim, the genuineness and due execution of the instrument shall
be DEEMED ADMITTED unless the adverse party through a reply specifically DENIES
UNDER OATH its genuineness and due execution (Rule 8, Sec. 8)

39

(3) In an action before the first level court (MTC, MeTC, MTCC, MCTC) the
amounts demanded in the counterclaim, cross-claim, third party complaint must fall
WITHIN THE JURISDICTION of said court, which should not exceed P300,000.00
(outside Metro Manila) and P400,000.00 (within Metro Manila),
(3) Effect on the Counterclaim when the complaint is dismissed
1. If no motion to dismiss has been filed, any of the grounds for dismissal under Rule
16 may be pleaded as an affirmative defense in the answer, and in the discretion of the
court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed
The dismissal is without prejudice to the right of the defendant to prosecute his
counterclaim in the same or separate action (Rule 16, Sec. 6). .
2. When the plaintiff himself files a motion to dismiss his complaint after the defendant
has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal
shall be limited to the complaint. It shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within 15 days from notice of the motion,
manifests his preference to have his counterclaim resolved in the same action (Rule 17, Sec. 2).
3. When the complaint is dismissed through the fault of the plaintiff and at a time when
a counterclaim has already been set up , the dismissal is without prejudice to the right of
the defendant to prosecute his counterclaim in the same or separate action (Rule 17,
Sec. 3)
d. Cross-claims (Rule 6, Sec. 8)
What is a cross-claim?
a. Any claim by any party against a co-party
b. arising out of the transaction or occurrence
c. that is the subject matter of either the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party against whom it is asserted is or
may be liable to the cross-claimant for all or part or a claim asserted in the action
against the cross-claimant (Rule 6, Sec. 8).
A cross-claim is allowed to be interposed by a party against a co-party to enable the
former to RECOVER from the latter whatever he might be made liable to pay the
plaintiff.
Ex. If ABC Bank sues X and Y to collect a loan, Y, who merely acted as an
accommodation party, may file a cross-claim against X by claiming that X is the actual
debtor and should be liable for the payment of the loan (Bar 1997 ).
The dismissal of the complaint carries with it the dismissal of the cross-claim which is
purely defensive, but NOT a cross-claim seeking affirmative relief (Torres vs. CA, 49
SCRA 67 [1973]).
A cross-claim that a party has at the time the answer is filed shall be contained in
said answer (Rule 11, Sec. 8). If not set up, it shall be barred (Rule 9, Sec. 2). Hence,
40

a cross-claim cannot be set up for the first time on appeal (Loadmasters Customs
Services, Inc. vs. Glodel Brokerage Corporation, 639 SCRA 69)
A cross-claim that shall be barred if not asserted is one already existing at the time
the answer is filed, but not a cross-claim that may mature or may be acquired after
service of the answer. Such cross-claim may, with permission of the court, be
presented by supplemental pleading before judgment (Rule 11, Sec. 9)
A cross-claim omitted through oversight, inadvertence or excusable neglect, or when
justice requires, may, by leave of court, be set up by amendment before judgment
(Rule 11, Sec. 10)
Distinguish a cross-claim from a counterclaim.
a. A cross-claim is a claim against a co-party while a counterclaim is a claim against an
opposing party.
b. A cross-claim requires that filing fee be paid and that there be certification against
forum shopping while only permissive counterclaim requires the same.
c. A cross-claim must be answered, otherwise there might be default while a
compulsory counterclaim need not be answered.
e. Third (fourth, etc.) party complaints
Rule 6, Sec. 11. Third, (fourth, etc.)-party complaint .
A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action, called the third (fourth, etc.)-party
defendant, for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.
Ex . If the passenger of a bus sues the operator for breach of contract of carriage because
of injuries sustained by him in an accident, the operator may file a third-party complainant
against the driver for reimbursement
M assembles an owner-type jeep for O, who in turn rents it to P. Due to faulty brakes, P
meets a vehicular accident, causing him injuries. P files an action for damages against O
and M. O cannot file a third-party complaint against M because both are already parties.
Instead, O should file a cross-claim against M (Bar 1996 )
Tests to determine whether the third-party complaint is in respect of
plaintiffs claim:
1. Whether it arises out of the same transaction on which the plaintiffs claim
is ba sed, or, although arising out of another or different transaction, is
connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable to the plaintiff or to the defendant
for all or part of the plaintiffs claim against the original defendant; and
41

3. Whether the third-party defendant may assert any defenses which the third-party
plaintiff has or may have to the plaintiffs claim. (Capayas vs. CFI of Albay, 77 Phil
181).
. Leave of court is necessary in filing a third (fourth, etc.) party complaint in order to
obviate delay in the resolution of the complaint, such as when the third-party
defendant cannot be located, or when unnecessary issues may be introduced, or
when a new and separate controversy is introduced. Leave of court is not required in
filing a counterclaim or cross-claim because the parties involved are already parties
to the case.
Where the trial court has jurisdiction over the main case, it also has jurisdiction over
the third party complaint, regardless of the amount involved as a third-party complaint
is merely auxiliary to and is a continuation of the main action. (Republic v. Central
Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968)
f. Complaint-in-intervention
INTERVENTION - a legal proceeding by which a person who is not a party to the action is
permitted by the court to become a party by intervening in a pending action after meeting the
conditions and requirements of the Rules of Court.
If the purpose of the motion for intervention is to assert a claim against either or all of the
original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of
the original parties, or an answer-in-intervention if he unites with the defending party in
resisting a claim against the latter. (Rule 19, Sec. 3)
. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is fixed by the court. (Rule 19,
Sec. 4)
g. Reply Rule 6, Sec. 10.
A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such reply, ALL the new matters alleged in
the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.
N.B . The filing of a reply is not necessary , because even if a party does not file a repy, all the
new matters that were alleged in the answer are deemed controverted. ( Rule 6, Sec. 10)
Exception :
1.. Where the defense in the answer is based on an actionable document , a reply under
42

oath must be made, otherwise, the genuineness and due execution of the document
shall be deemed admitted (Rule 8, Sec. 8) (Veluz vs. Court of Appeals , G.R. No.
139951, November 23, 2000)
2. Where the plaintiff files an action to recover a loan with interest and the defendant in his
answer alleges that the interest charged by the plaintiff in is usurious, there is no need
to file a reply to deny such allegation. It is necessary to deny allegations of usury only if
such allegations are made in a complaint to recover usurious interest. (Rule 8, Sec. 11)
2. Pleadings allowed in small claims cases and cases covered by the rule on
summary procedure
Small Claims
Pleadings allowed
1. Statement of Claims (complaint)
2. Response (answer) - Secs 5 and 11, Rule of Procedure for Small Claims Cases
3. Permissive counterclaim - The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same transaction or occurrence,
provided that the amount and nature thereof are within the coverage of this Rule
and the prescribed docket and other legal fees are paid. (Sec. 13, RPSCC)
b. Prohibited pleadings, motions and petitions
1. Motion to dismiss
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari , mandamus , or prohibition against any interlocutory order issued by the
court.
8. Motion to declare the defendant in default.
9. Dilatory motions for postponement.
10. Reply.
11. Third-party complaints.
12. Interventions ( Sec. 14, RPSCC).
Summary Procedure
a . Pleadings allowed.
1. Complaint
2. Compulsory counterclaim
3. Cross-claims pleaded in the answer
4. Answer to these pleadings ( Sec. 3, Rule on Summary Procedure)
b. Prohibited pleadings, motions and petitions
Same as in Small Claims Cases, except that motion to dismiss is allowed on the ground of
- lack of jurisdiction over the subject matter, or
- failure to comply with barangay conciliation (Sec. 19, RSP).
43

Rule 7
PARTS OF A PLEADING

Sec. 1 Caption. The caption sets forth the name of

the court. The title of the action, and docket number
if assigned.
The title of the action indicates the names of the
parties. They shall all be named in the original
complaint or petition; but in subsequent pleadings it
shall be sufficient if the name of the first party on
each side be started with an appropriate indication
when there are other parties.
Their respective participation in the case shall be
indicated.

ILLUSTRATION:
CAPTION

Republic of the Philippines

11th Judicial Region
Regional Trial Court of Davao
Branch 12

contains the following:

1. the name of the court;
2. the title of the action and
3. the docket number if assigned.

TITLE

Juan dela Cruz,

P
l
a
i
n
t
i

Civil Case #12345

For: Annulment of Contract

44

COMPLAINT

BODY sets forth:

Plaintiff, through counsel respectfully alleges
1. its designation;
that:
xxxx
x x;
2. the allegation of the 1party's
claims
and defenses;
2
x
x
x
x
x
x;
3. the relief prayed for; and
3 xxxxxx
4. the date of the pleading
The rule is, it is only in the complaint where the name of all the parties are
required to be stated, but in subsequent pleadings, no need. But there is an
EXCEPTION to this rule. There are instances where the law does not require
the name of the parties to be stated even in the complaint.
Q: What are the instances where the law does not require the name of the
parties to be stated even in the complaint or pleading?
A: These are the following:
1 Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2 Class suit (Rule 3, Section 12);
3 When the identity or name of the defendant is unknown (Rule 3,
Section 14);
4 When you sue an entity without judicial personality (Rule 3, Section
15);
5 If a party is sued in his official capacity. Official designation is
sufficient. [e.g. Mr. Acelar vs. City Mayor of Davao.] (Unabia vs. City
Mayor, 99 Phil. 253)
Variance between caption and allegations in the pleading
It is not the caption of the pleading but the allegations therein which
determine the nature of the action and the court shall grant relief warranted
by the allegations and proof even if no such relief is prayed for (Solid Homes
Inc. vs. CA, 271 SCRA 157; Banco Filipino vs. CA, 332 SCRA 241; Lorbes vs.
CA 351 SCRA 716). Thus, a complaint captioned as unlawful detainer is
actually an action for forcible entry where the allegations show that the
possessor of the land was deprived of the same by force, intimidation,
strategy, threat or stealth. Likewise, a complaint for unlawful detainer is
actually an action for collection of a sum of money where the allegations of
the complaint do not disclose that the plaintiff demanded upon the
defendant to vacate the property but merely demanded to pay the rentals in
arrears.
In one case, while the complaint was denominated as one for specific
performance, the allegations of the complaint and the relief prayed for
45

actually and ultimately sought for the execution of a deed of conveyance to

effect a transfer of ownership of the property in question. The action
therefore, is a real action (Gochan vs. Gochan, 372 SCRA 256). Also although
the complaint was denominated as one for reformation of the instrument, the
allegations of the complaint did not preclude the court from passing upon the
real issue of whether or not the transfer between the parties was a sale or an
equitable mortgage as the said issue has been squarely raised in the
complaint and had been the subject of arguments and evidence of the
parties. (Lorbes vs. CA 351 SCRA 716).
If the petitioner filed before the SC a petition captioned Petition for
Certiorari based on Rule 65 but the allegations show that the issues raised
are pure questions of law, the cause of action is not one based on Rule 65
which raises issues of jurisdiction, but on Rule 45 which raises pure questions
of law. The allegations of the pleading determine the cause of action and not
the title of the pleading (De Castro vs. Fernandez, Jr. GR No. 155041, Feb. 14,
2007)
Sec. 2. The body. - The body of the pleading sets
forth its designation, the allegations of the party's
claims or defenses, the relief prayed for, and the date
of the pleading. (n)
a) Paragraphs - the allegations in the body of a
pleading shall be divided into paragraphs so numbered
as to be readily identified, each of which shall
contain a statement of a single set of circumstances so
far as that can be done with convenience. A paragraph
may be referred to by its number in all succeeding
pleadings. (3a)
(b)
Headings - When two or more causes of action
are joined, the statement of the first shall be
prefaced by the words "First cause of action", of the
second by "second cause of action," and so on for the
others.
(c)
Relief - The pleading shall specify the
relief sought, but it may add a general prayer for such
further or other relief as may be deemed just or
equitable. (3a, R6)
(d)
Date - Every pleading shall be dated. (n)
The bodyA pleading is divided into paragraphs so numbered as to be readily
identified. Normally, a complaint starts: Plaintiff, thru counsel, respectfully
alleges that x x x. Then first paragraph, second paragraph and so on. The
first paragraph is normally the statement of the parties and their addresses
which is required under Rule 6 where a complaint must state the names:
46

1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City

whereas defendant Pedro Bautista, is also of legal age and a resident
of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff
in the amount of so much payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the
subsequent pleadings. So in his Answer, the defendant will just refer to the
#, I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you
file one complaint embodying two or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid
promissory notes. So, there are three causes of action. The lawyer of Angelo
decided to file only one complaint collecting the three promissory notes.
Now, how should he prepare the complaint containing the three promissory
notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured
amounting to so much and it is not paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loan
became payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.
So, you indicate your different causes of action. That is how you prepare
your complaint. On the other hand, the defendant will answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you
present your exhibits, you might get confused because you combined all the
three causes of action in one paragraph. But with this one, the presentation
is clearer, the outline is clearer and it is more scientifically arranged than
joining them in one story.
Relief-

47

In the body, you state your allegations or defenses. Then at the end, you
state the relief which we call PRAYER what you are asking the court:
Wherefore, it is respectfully prayed that judgment be rendered ordering
defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from
this date until fully paid. Then, you end up with the date of the pleading:
Davao City, Philippines, December 10, 1997.
Under paragraph [c], the pleading must state the relief sought. But it may
add a general prayer for such further other relief as may be just and
equitable like, Plaintiff prays for such further or other relief which the court
may deem just or equitable.
The relief or prayer, although part of the complaint, does not constitute
a part of the statement of the cause of action. It does not also serve
to limit or narrow the issues presented (UBS vs. CA 332 SCRA 534)
It is the material allegations of the complaint, not the legal consequences
made therein or the prayer that determines the relief to which the plaintiff is
entitled. (Banco Filipino vs. CA 332 SCRA 241).
It is important to remember that the court may grant a relief not prayed
for as long as the relief is warranted by the allegations of the
complaint and the proof. (Lorbes vs. CA).
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate what is the
nature of the cause of action. Causes of action are mere allegations. Prayer is
not part of the cause action but it is important because it might enlighten us
on the nature of the cause of action. That is the purpose of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a contract of
sale. If you look at the caption, it is a personal action which should be
instituted in the place where the parties reside. But if you look at the prayer:
Wherefore, it is respectfully prayed that after trial, the deed of sale shall be
annulled on the ground of intimidation, and the ownership of the land sold to
the defendant in Digos be ordered returned. Actually, you are trying to
recover the ownership of the land. So in other words, it is not a personal
action but a real action.
Relief/s that a court can grantLeticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo
Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.; G.R.
No. 173559. January 7, 2013

48

Pleadings; relief. It is settled that courts cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the party. They cannot also
grant a relief without first ascertaining the evidence presented in court.
In Development Bank of the Philippines v. Tecson, this Court expounded that:
Due process considerations justify this requirement, it is improper to enter an order
which exceeds the scope of relief sought by the pleadings, absent notice, which affords
the opposing party an opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the complaint must provide
the measure of recovery is to prevent surprise to the defendant.
Notably, the Rules is even more strict in safeguarding the right to due process of a
defendant who was declared in default than of a defendant who participated in trial. For
instance, amendment to conform to the evidence presented during trial is allowed the
parties under the Rules. But the same is not feasible when the defendant is declared in
default because Section 3(d), Rule 9 of the Rules of Court comes into play and limits
the relief that may be granted by the courts to what has been prayed for in the
complaint. xxx The raison detre in limiting the extent of relief that may be granted is that
it cannot be presumed that the defendant would not file an Answer and allow himself to
be declared in default had he know that the plaintiff will be accorded a relief greater than
or different in kind from that sought in the Complaint. No doubt, the reason behind
Section 3(d), Rule 9 of the Rules of Court is to safeguard defendants right to due
process against unforeseen and arbitrarily issued judgment. This, to the mind of the
Court, is akin to the very essence of due process. It embodies the sporting idea of fair
play and forbids the grant of relief on matters where the defendant was not given the
opportunity to be heard thereon.
In Prince Transport, Inc. v. Garcia, 639 SCRA 312, 330, the Court ruled that a court
can grant the relief warranted by the allegations and the proof even if it is not
specifically sought by the injured party; the inclusion of a general prayer may justify the
grant of a remedy different from or together with the specific remedy sought, if the facts
alleged in the complaint and the evidence introduced so warrant.
Sec. 3. Signature and Address.- Every pleading must be
signed by the party or counsel representing him, stating in
either case his address which should not be a post office
box.
x x x x x
Signature and address every pleading must be signed by the party or
the counsel representing him.
A signed pleading is one that is signed either by the party himself or his
counsel. Section 3, Rule 7 is clear on this matter. It requires that a pleading
must be signed by the party or counsel representing him. Therefore, only the
signature of either the party himself or his counsel operates to validly
49

convert a pleading from one that is unsigned to one that is signed. (Republic
vs. Kenrick Development Corp. 351 SCRA 716)
Counsels authority to sign personal to him/herIt has been held that counsels authority and duty to sign a pleading are
personal to him. He may not delegate it to just any person because the
signature of counsel constitutes an assurance by him that:
1. he has read the pleading;
2. that to the best of his knowledge, information and belief, there is a
good ground to support it; and
3. that it is not interposed for delay.
Under the Rules of Court, it is counsel alone, by affixing his signature, who
can certify to these matters.
The preparation and signing of a pleading constitute legal work involving
practice of law which is reserved exclusively for the members of the legal
profession. Accordingly however, counsel may delegate the signing of a
pleading to another lawyer but cannot do so in favor of one who is not. In so
ruling the Court cites The Code of Professional Responsibility, the pertinent
provision on which provides:
Rule 9.01 A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a member
of the Bar in good standing.
A signature by agents of a lawyer amounts to signing by unqualified
persons, something the law strongly proscribes. Therefore, the blanket
authority entrusted to just anyone is void. Any act taken pursuant to that
authority is likewise void. Hence, there is no way it could be cured or ratified
by counsel. (Republic vs. Kenrick Development Corp.)
Not Post Office Address, why?
Take note of the prohibition now: You must state your address which
should not be a post office box because one difficulty is that the exact date
when you claim your mail cannot be determined if it is a P.O. box. But if it is
served to his office, the exact date of receipt can easily be
determined.
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:

50

The
signature
of
counsel
constitutes
a
certification by him that he has read the pleading;
that to the best to his knowledge, information, and
belief there is good ground to support it; and that it
is not interposed for delay.
BAR QUESTION: What is the meaning of the phrase Implied Certification
in a Pleading?
A: Implied Certification in a Pleading means that when a lawyer signs a
pleading he is certifying that he has read it, to the best of his knowledge,
information and belief there is a good ground to support it, and it is not
interposed for delay.
Effect of an unsigned pleadingSection 3, last paragraph:
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for
delay. Counsel who 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 change of
his
address,
shall
be
subject
to
appropriate
disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as if no
pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not intentional
maybe because he was hurrying to file the pleading, the lawyer had it filed
when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel
because the law says, however, the court, may in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere
inadvertence and not intended for delay.
However, if the lawyer files a pleading, which is UNSIGNED DELIBERATELY,
then, according to the rules, he shall be subject to appropriate disciplinary
action. That is practically unethical no? Not only that, he is also subject to
disciplinary action if he signs a pleading in violation of this Rule or alleges
scandalous or indecent matter therein, or fails to promptly report to the court
a change of his address..
51

Now, this ground fails to promptly report to the court a change

of his address has been inserted in 1997 Rules, this was not found in the
prior Rules perhaps to prevent delays.
Q: What do you mean by this?
A: A lawyer will file a pleading in court, he will say this is his address, and
then he moves his office without telling the court or the opposing counsel of
his new address. So, the court will be sending notices and orders to his old
address and it is returned to sender because the lawyer already moved to
another place. So, it causes delay.
So, in order to penalize the lawyer, subject to disciplinary action, it is his
obligation to inform the court and even the opposing counsel about his new
address so that all court orders, decisions and all pleadings will be served on
his address. I think what prompted the SC to insert this is the fact that it has
been the cause of delays in many cases.
Disciplinary action on counsel in the following cases:
1. deliberately filing an unsigned pleading;
2. deliberately signing a pleading in violation of the Rules;
3. alleging scandalous or indecent matter in the pleading; or
4. failing to promptly report a change of his/her address.
Signature of a misjoined partyThe Court rules that the absence of the signature of the person misjoined
as a party-plaintiff in either the verification page or certification against
forum shopping is not a ground for the dismissal of the action. There is no
judicial precedent affirming or rejecting such a view, but we are comfortable
with making such a pronouncement. A misjoined party plaintiff has no
business participating in the case as a plaintiff in the first place, and it would
make little sense to require the misjoined party in complying with all the
requirements expected of plaintiffs (Chua v. Torres GR No. 151900, Aug 30,
2005).
VERIFICATION
Sec.
4.
Verification.Except
when
otherwise
specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by
affidavit. (5)
A pleading is verified by an affidavit that the
affiant has read the pleading and that the allegations
therein are true and correct of his knowledge and
belief.

52

A pleading required to be verified which contains a

verification based on "information and belief," or upon
"knowledge, information and belief," or lacks a proper
verification, shall be treated as an unsigned pleading.
(6a)
How a Pleading is VerifiedA pleading is verified by an affidavit, which declares that:
(a) the affiant has read the pleading, and
(b) that the allegations therein are true and correct of his personal
knowledge or based on authentic records (Sec. 4 as amended by A.M. No. 002-10, May 1, 2000)
Example:
I, Juan de la Cruz of legal age, after being sworn
in accordance with law, hereby say that:
I am the plaintiff in the above entitled case.
I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
Affiant
Subscribed and sworn to before me on this 2nd day
of October 2001, in the City of Cebu, Philippines.
Panfilo Corpuz
Notary Public
Significance of a VerificationThe purpose of verification is to insure good faith in the averments of a
pleading or that they are true and correct, not merely speculative.
(Sarmiento vs. Zaratan GR No. 167471, February 5, 2007).
Effect if verification is falseQ: What do you think will happen if a pleading is verified by a party and it
turns out that the allegations are false? And that he deliberately made those
allegations false and under oath.
53

A: Well, you know your Criminal Law. That will be a ground for the
prosecution for the crime of perjury, because that is a false affidavit. But if
the pleading is not verified, even if they are false, there is no perjury,
because perjury requires a sworn statement by the accused.
Effect of lack of a verificationLack of verification in a pleading is a formal defect, not jurisdictional
defect, and can be cured by amendment. (Phil. Bank of Commerce vs.
Macadaeg, L-14174, Oct. 31, 1960)
The absence of a verification may be corrected by requiring an oath. The rule
is in keeping with the principle that rules of procedure are established to
secure substantial justice and that technical requirements may be dispensed
with in meritorious cases. (Pampanga Sugar Development Company, Inc. vs.
NLRC 272 SCRA 737) The court may order the correction of the pleading or
act on an unverified pleading if the attending circumstances are such that
strict compliance would not fully serve substantial justice, which after all, is
the basic aim for the rules of procedure. (Robert Development Corp. vs.
Quitain 315 SCRA 150; Joson vs. Torres 290 SCRA 279)
What pleading needs to be verifiedQ: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT
when otherwise specifically required by law or this rule. When the law or
rules require a pleading to be verified, then it must be verified, otherwise it is
formally detective. If the law is silent, verification is not necessary and the
pleading is filed properly.
Litigants not required to read the very same document to be filed in
courtGenerally, a pleading is not required to be verified unless required by law
or by the Rules of Court. Verification, when required, is intended to secure an
assurance that the allegations of a pleading are true and correct; are not
speculative or merely imagined; and have been made in good faith. To
achieve this purpose, the verification of a pleading is made through an
affidavit or sworn statement confirming that the affiant has read the pleading
whose allegations are true and correct of the affiant's personal knowledge or
based on authentic records.
However, the Rules do not require the litigants to read the very
same document that is to be filed before the courts; what the Rules
require is for a party to read the contents of a pleading without any
specific requirement on the form or manner in which the reading is
to be done. That a client may read the contents of a pleading without
seeing the same pleading to be actually filed with the court is, in these days
54

of e-mails and other technological advances in communication not an

explanation that is hard to believe. The variance between the dates of
the Petition and the Verification does not necessarily lead to the
conclusion that no verification was made, or that the verification
was false. (Sps. Valmonte v. Alcala, GR No. 168667, July 23, 2008)
BAR QUESTION: Name as many pleadings as you can which must be
verified.
A: The following:
1 Rule 8 when you deny the due execution of an actionable
document;
2 Summary Rules all pleadings under summary rules should be
verified;
3 Special Civil Actions petitions for certiorari, prohibition and
mandamus.
4 Statement of Claim for Small Claims cases as well as the response
thereto (Secs. 5 & 11, Procedure for Small Claims Cases)
5 Complaint for Injunction (Sec. 4 R 58)
6 Application for Appointment of Receiver (Sec. 1 R 59)
7 Application for Support Pendente Lite (Sec. 1 R 69)
8 Petition for Forcible Entry or Unlawful Detainer, the answers thereto,
and the answers to any compulsory counterclaim and cross-claim
pleaded in the answer (Sec. 4 R 70)
9 Petition for Indirect Contempt (Sec. 4 R 71)
10 Petition for Relief from Judgment or Order (Sec. 3 R 38)
11 Petition for Review from the RTC to the SC (Sec. 2(c) R 41)
12 Petition for Review from RTC to SC (Sec. 1 R 42)
13 Petition for Review from CTA and other quasi-judicial agencies to the
CA (Sec. 5 R 43)
14 Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R 45)
15 Petition for Appointment of a Guardian (Sec. 2 R 93)
16 Petition for Leave filed by Guardian to Sell or Encumber Property of
an Estate (Sec. 1 R 95)
17 Petition for Declaration of Competency of a Ward (Sec. 1 R 97)
18 Petition for Habeas Corpus (Sec. 3 R 102)
19 Petition for Change of Name (Sec. 2 R 103)
20 Petition for Voluntary Judicial Dissolution of a Corporation (Sec. 1 R
105)
21 Petition for Cancellation or Correction of Entries in the Civil Registru
(Sec. 1 R 108)
Q: Now, on the other hand, suppose a pleading does not require
verification but the lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required
to be verified. But I will verify it. Is there something wrong with it?
55

Technically, none. But if it is required to be verified and you omit the

verification, it is formally defective.

CERTIFICATION OF NON-FORUM SHOPPING

Sec. 5. Certification against forum shopping.-- The
plaintiff or the principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed
therewith:
a)that he has not theretofore commenced any action
or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the
best of his knowledge, no such other action or claim is
pending therein;
b)if there is such other pending action or claim, a
complete statement of the status thereof; and
c)if he should thereafter learn that the same or
similar action or claim has been filed or pending, he
shall report that fact within (5) days therefrom to the
court wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the complaint
or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing. The
submission of a false certification or non-compliance
with any of the undertakings therein, shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall
be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause
for administrative sanctions. (n)

The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional.

(Robert Development Corp. vs. Quitain)
This rule applies as well to special civil actions since a special civil action is
governed by the rules for ordinary civil actions, subject to the specific rules
56

prescribed for a special civil action. Such specific rule appears under Rule 46,
Sec. 3, which requires that every petition for certiorari to be accompanied by
a sworn certification of non-forum shopping. (Wacnang vs. Comelec, GR No.
178024 Oct. 17, 2008)
Failure to submit certification against forum shopping and forum
shopping are two separate grounds for dismissal-The failure to submit a certification against forum shopping is a ground for
dismissal, separate and distinct from forum shopping as a ground for
dismissal. A complaint may be dismissed for forum shopping even if there
is a certification attached and conversely, a complaint may be dismissed
for lack of the required certification even if the party has not committed
forum shopping. Compliance with the certification against forum shopping
is separate from, and independent of, the avoidance of forum shopping
itself. (Juaban vs. Espina 548 SCRA 588, March 14, 2008).
Benedicto v. Lacson, et al., G.R. No. 141508, May 5, 2010
There is no need to state that a case was filed and dismissed in the certificate of nonforum shopping if dismissal is without prejudice.
Foundation of the rule is res judicata.
Pleadings requiring a certificationThe certification against forum shopping is mandatory in filing a
complaint and other initiatory pleadings asserting a claim (Sec.5)
This initiatory pleadings include not only the 1. original complaint
but also 2.permissive counterclaim, 3. cross-claim, 4. third (fourth)party complaint, 5. complaint in intervention, 6. petition or any
application in which a party asserts a claim for relief. The rule does
not require a certification against forum shopping for a compulsory
counterclaim because it cannot be the subject of a separate and
independent adjudication. It is therefore, not an initiatory pleading (UST vs.
Surla, 294 SCRA 382)
It bears stressing that the Rule distinctly provides that the required
certification against forum shopping is intended to cover an initiatory
pleading, meaning an incipient application of a party asserting a claim for
relief. The answer with a counterclaim is a responsive pleading, filed merely
to counter petitioners complaint that initiates the civil action and is a claim
for relief that is derived only from, or is necessarily connected with, the main
action or complaint. It is not an initiatory pleading (Sps. Carpio vs. Rural Bank
of Sto. Tomas Batangas, supra)
57

SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA

294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies
only to permissive counterclaims because there is no
possibility of forum shopping in compulsory counterclaims.
The proviso in the second paragraph of Section 5, Rule 7, of the
1997 Rules of Civil Procedure, i.e., that the violation of the antiforum shopping rule shall not be curable by mere amendment . . .
but shall be cause for the dismissal of the case without prejudice,
being predicated on the applicability of the need for a certification
against forum shopping, obviously does not include a claim which
cannot be independently set up.
Forum Shopping; definition and nature.
1.There is forum shopping when, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion, other than by appeal or certiorari,
in another.
2.There can also be forum shopping when a party institutes two or more
suits in different courts, either simultaneously or successively, in order to ask
the courts to rule on the same or related causes and/or to grant the same or
substantially the same reliefs on the same supposition that one or the other
court would make a favorable disposition or increase a partys chances of
obtaining a favorable decision or action. (Huibonhoa vs. Concepcion GR
153785, August 3, 2006; Heirs of Cesar Marasigan vs. Marasigan, GR 156078
March 14, 2008)
It is an act of a party against whom an adverse judgment has been
rendered in one forum of seeking and possibly getting a favorable opinion in
another forum, other than by appeal or the special civil action of certiorari, or
the institution of two or more actions or proceedings grounded on the same
cause on the supposition that one or the other court would make a favorable
disposition. (Sps. Carpio vs. Rural Bank of Sto. Tomas Batangas GR 153171
May 4, 2006)
Estrella Aduan Orpiano v. Spouses Antonio C. Tomas and Myrna U. Tomas; G.R.
No. 178611. January 14, 2013
Forum shopping is defined as an act of a party, against whom an adverse judgment or
order has been rendered in one forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or special civil action for certiorari. It may
also be the institution of two or more actions or proceedings grounded on the same
58

cause on the supposition that one or the other court would make a favorable decision. x
x x It is expressly prohibited xxx because:
a it trifles with and abuses court processes,
b degrades the administration of justice, and
c congest our court dockets. A willful and deliberate violation of the rule against
forum shopping is a ground for summary dismissal of the case, and may also
constitute indirect contempt.
d
e How to determine existence of forum shopping
To determine whether a party violated the rule against forum shopping, the
most important question to ask is whether the elements of litis
pendentia are present or whether a final judgment in one case will
result to res judicata in another. Otherwise stated, to determine forum
shopping, the test is to see whether in the two or more cases pending, there
is (a) identity of parties, (b) identity of rights or causes of action,
and (c) identity of reliefs sought (Huibonhoa vs. Concepcion)
What is pivotal in determining whether forum shopping exists or not is the
vexation caused the courts and parties-litigants by a party who asks different
courts and/or administrative agencies to rule on the same or related causes
and/or grant the same or substantially the same reliefs, in the process
creating possibility of conflicting decisions being rendered by the different
courts and/or administrative agencies upon the same issues (Lim vs. Vianzon
GR 137187, August 3, 2006).
Forum-shopping exists when the elements of litis pendentia concur.
ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as represented
by DR.SOLEDAD CONSING,
G.R. No. 186720, February 8, 2012
On the third issue, there is forum shopping when the elements of litis pendentia are
present, i.e., between actions pending before courts, there exist:
(1) identity of parties, or at least such parties as represent the same interests in
both actions,
(2)
identity of rights asserted and relief prayed for, the relief being founded on
the same facts, and
(3) the identity of the two preceding particulars is such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration; said requisites
are also constitutive of the requisites for auter action pendant or lis
pendens
Applying the foregoing, there was clearly a violation of the rule against
forum shopping when Spouses Medado instituted Civil Case No. 797
59

C for injunction notwithstanding the pendency of Civil Case No. 00

11320 for rescission of contract and damages.
All elements of litis pendentia are present with the filing of the two cases. There
is no dispute that there is identity of parties representing the same interests in the two
actions, both involving the estate and heirs of the late Consing on one hand, and
Spouses Medado on the other. The rescission case names Soledad T. Consing, for
herself and as administratrix of the estate of Antonio Consing as plaintiff, with Spouses
Meritus Rey and Elsa Medado, [PNB] and the Register of Deeds of Cadiz City as
respondents. The injunction case, on the other hand, was instituted by Spouses
Medado, against (LBP) and the Heirs of the Late Antonio Consing, as represented by
Dra. Soledad Consing. The primary litigants in the two action, and their interests, are
the same.
The two other elements are likewise satisfied. There is an identity of rights
asserted and reliefs prayed for in the two cases, with the reliefs being founded on the
same set of facts. In both cases, the parties claim their supposed right as owners of the
subject properties. They all anchor their claim of ownership on the deeds of absolute
sale, which they had executed, and the law applicable thereto. They assert their
respective rights, with Spouses Medado as buyers and the heirs as sellers, based on
the same set of facts that involve the deeds of sale's contents and their validity. Both
actions necessarily involve a ruling on the validity of the same contract as
against the same parties. Thus, the identity of the two cases is such as would render
the decision in the rescission case res judicata in the injunction case, and vice versa.
It does not even matter that one action is for the enforcement of the parties'
agreements, while the other action is for the rescission thereof. In the similar case
of Victronics Computers, Inc. v. RTC, Branch 63, Makati,we discussed: Civil Case No.
91-2069 actually involves an action for specific performance; it thus upholds the
contract and assumes its validity. Civil Case No. 91-2192, on the other hand, is for the
nullification of the contract on the grounds of fraud and vitiated consent. While
ostensibly the cause of action in one is opposite to that in the other, in the final
analysis, what is being determined is the validity of the contract. x x x Thus, the
identity of rights asserted cannot be disputed. Howsoever viewed, it is beyond cavil that
regardless of the decision that would be promulgated in Civil Case No. 91-2069, the
same would constitute res judicata on Civil Case No. 91-2192 and vice versa.(emphasis
supplied)
This was further explained in Casil v. CA, where we ruled:
The Court of Appeals held that there can be no res adjudicata because there is no
identity of causes of action between the two cases. We do not agree. In the two cases,
both petitioner and private respondent brought to fore the validity of the agreement
dated May 4, 1994. Private respondent raised this point as an affirmative defense in
her answer in the First Case. She brought it up again in her complaint in the Second

60

Case. A single issue cannot be litigated in more than one forum. As held in Mendiola
vs. Court of Appeals:
The similarity between the two causes of action is only too glaring. The test of
identity of causes of action lies not in the form of an action but on whether the
same evidence would support and establish the former and the present
causes of action. The difference of actions in the aforesaid cases is of no
moment. In Civil Case No. 58713, the action is to enjoin PNB from foreclosing
petitioner's properties, while in Civil Case No. 60012, the action is one to annul
the auction sale over the foreclosed properties of petitioner based on the same
grounds. Notwithstanding a difference in the forms of the two actions, the
doctrine of res judicata still applies considering that the parties were litigating
for the same thing, i.e. lands covered by TCT No. 27307, and more
importantly, the same contentions and evidence as advanced by herein
petitioner in this case were in fact used to support the former cause of action.
The CA was then correct in ordering the dismissal of the complaint in Civil
Case No. 797-C for violation of the rule against forum shopping. The issue on
the validity of the subject deeds of absolute sale can best be addressed in the
action for rescission, as against the case for injunction filed by Spouses
Medado. In a line of cases, we have set the relevant factors that courts
must consider when they have to determine which case should be
dismissed, given the pendency of two actions, to wit:
(1) the date of filing, with preference generally given to the first action
filed to be retained;
(2)
to
the

whether the action sought to be dismissed was filed merely

preempt the latter action or to anticipate its filing and lay
basis for its dismissal; and

(3)
the

whether the action is the

issues between the parties.

appropriate

vehicle

for

litigating

We emphasize that the rules on forum shopping are meant to prevent such
eventualities as conflicting final decisions. This Court has consistently held that the
costly consequence of forum shopping should remind the parties to ever be mindful
against abusing court processes. In addition, the principle of res judicata requires that
stability be accorded to judgments. Controversies once decided on the merits shall
remain in repose for there should be an end to litigation which, without the doctrine,
would be endless.
Three ways of committing forum shopping-

61

1 filing multiple cases based on the same cause of action and with the
same prayer, the previous case not having been resolved yet (where
the ground is litis pendentia);
2 filing multiple cases based on the same cause of action and the same
prayer, the previous case having been finally resolved (where the
ground for dismissal is res judicata); and
3 filing multiple cases based on the same cause of action but with
different prayers (splitting of causes of action where the ground for
dismissal is also either litis pendentia or res judiciata) (Chua v.
MetroBank, 596 SCRA 524, 535-536)
Rationale against forum shoppingThe rationale against forum shopping is that a party should not be
allowed to pursue simultaneous remedies in two different fora. Filing multiple
petitions or complaints constitutes abuse of court processes, which tends to
degrade the administration of justice, wreaks havoc upon orderly judicial
procedure, and adds to the congestion of the heavily burdened dockets of
the court. Thus, the rule proscribing forum shopping seeks to promote
candor and transparency before the courts to promote the orderly
administration of justice, prevent undue inconvenience upon the other party,
and save the precious time of the courts. It also aims to prevent the
embarrassing situation of two or more courts or agencies rendering
conflicting resolutions or decisions upon the same issue (Huibonhoa vs.
Concepcion, supra).
Certification against forum shopping and Verification; requirements not
jurisdictional.
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-Mindanao
Station, et al.; G.R. No. 192615, January 30, 2013
In any case, it is settled that the requirements of verification and certification against
forum shopping are not jurisdictional. Verification is required to secure an assurance
that the allegations in the petition have been made in good faith or are true and
correct, and not merely speculative. Non-compliance with the verification
requirement does not necessarily render the pleading fatally defective, and is
substantially complied with when signed by one who has ample knowledge of the
truth of the allegations in the complaint or petition, and when matters alleged in
the petition have been made in good faith or are true and correct.
On the other hand, the certification against forum shopping is required based on
the principle that a party litigant should not be allowed to pursue simultaneous
remedies in different fora. While the certification requirement is obligatory, noncompliance or a defect in the certificate could be cured by its subsequent
62

correction or submission under special circumstances or compelling reasons or

on the ground of substantial compliance.
Effect of non-compliance
The failure to comply with the required certification is not curable by a
mere amendment and shall be a cause for the dismissal of the
action (Sec. 5).
The dismissal is not to be done by the court motu proprio as the
rule requires that it shall be done upon motion and after hearing
(Sec. 5)
The dismissal is, as a rule, without prejudice unless the order
provides otherwise (Sec. 5)
Certification against forum shopping; non-compliance is not curable by
subsequent submission unless there is substantial compliance or special
circumstance.
Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7, 2013
In this light, the Court finds that the CA correctly dismissed Andersons Petition for
Review on the ground that the certificate of non-forum shopping attached thereto was
signed by Atty. Oliva on her (Andersons) behalf sans any authority to do so. While the
Court notes that Anderson tried to correct this error by later submitting an SPA and by
explaining her failure to execute one prior to the filing of the petition, this does not
automatically denote substantial compliance. It must be remembered that a defective
certification is generally not curable by its subsequent correction, and while it is true that
in some cases the Court considered such a belated submission as substantial
compliance, it did so only on sufficient and justifiable grounds that compelled a liberal
approach while avoiding the effective negation of the intent of the rule on non-forum
shopping.
Certification against forum shopping; SPA designating counsel to sign must be
executed if party-pleader cannot sign.
Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7, 2013
The need to abide by the Rules of Court and the procedural requirements it imposes
has been constantly underscored by this Court. One of these procedural requirements
is the certificate of non-forum shopping which, time and again, has been declared as
basic, necessary and mandatory for procedural orderliness.

63

In Vda. De Formoso v. Philippine National Bank, the Court reiterated the guidelines
respecting non-compliance with or submission of a defective certificate of nonforum shopping, the relevant portions of which are as follows:
4) As to certification against forum shopping, non-compliance therewith
or a defect therein, xxx, is generally not curable by its subsequent
submission or correction thereof, unless there is a need to relax the
Rule on the ground of substantial compliance or presence of special
circumstances or compelling reasons.
xxxx
6) Finally, the certification against forum shopping must be executed by
the party pleader, not by his counsel. If, however, for reasonable or
justifiable reasons, the party-pleader is unable to sign, he must execute
a Special Power of Attorney designating his counsel of record to sign
on his behalf.
The requirement that it is the petitioner, not her counsel, who should sign the
certificate of non-forum shopping is due to the fact that a certification is a
peculiar personal representation on the part of the principal party, an assurance
given to the court or other tribunal that there are no pending cases involving
basically the same parties, issues and causes of action. Obviously, it is the
petitioner, and not always the counsel whose professional services have been
retained for a particular case, who is in the best position to know whether [she]
actually filed or caused the filing of a petition in that case. Per the above
guidelines, however, if a petitioner is unable to sign a certification for reasonable or
justifiable reasons, she must execute an SPA designating her counsel of record to sign
on her behalf. A certification which had been signed by counsel without the proper
authorization is defective and constitutes a valid cause for dismissal of the petition.
Who executes the certification?
It is the plaintiff or principal party who executes the certification under
oath. (Sec. 5). The certification must be executed by the party, not the
attorney (Damasco vs. NLRC 346 SCRA 714).
It is the petitioner and not the counsel who is in the best position to know
whether he or it actually filed or caused the filing of a petition. A Certification
signed by counsel is a defective certification and is a valid cause for
dismissal (Far Eastern Shipping Company vs. CA 297 SCRA 30). This is the
general and prevailing rule.

Certifiction of non-forum shopping, Verification

64

ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as

represented by DR.SOLEDAD CONSING,
G.R. No. 186720, February 8, 2012

Issues:
I.
Whether or not the CA correctly admitted the petition for
certiorari filed
before it, notwithstanding alleged deficiencies
in its verification and
certification against forum shopping;
II.
Whether or not the CA correctly admitted the petition for
certiorari filed
before it even if no motion for reconsideration
of the RTCs Order dated March
9, 2007 was filed with the
lower court; and
III. Whether or not the CA correctly held that the rule against forum shopping
was violated by the filing of the complaint for injunction during the pendency of
the action for rescission and
damages.
In their comment on the petition, the respondents also raise as an issue the
failure of the petitioner to join her husband as a party to the petition, considering that the
action affects conjugal property.
Ruling:
As we ratiocinated in Heirs of Olarte v. Office of the President:
The general rule is that the certificate of nonforum shopping must be signed by all the plaintiffs in a
case and the signature of only one of them is
insufficient. However, the Court has also stressed that the
rules on forum shopping were designed to promote and
facilitate the orderly administration of justice and thus should
not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to the
contents of the certification. This is because the requirement
of strict compliance with the provisions regarding the
certification of non-forum shopping merely underscores its
mandatory nature in that the certification cannot be
altogether dispensed with or its requirements completely
disregarded. Thus, under justifiable circumstances, the
65

Court has relaxed the rule requiring the submission of such

certification considering that although it is obligatory, it is not
jurisdictional.
In HLC Construction and Development Corporation
v. Emily Homes Subdivision Homeowners Association, it was
held that the signature of only one of the petitioners in the
certification against forum shopping substantially complied
with [the] rules because all the petitioners share a
common interest and invoke a common cause of action
or defense.
The same leniency was applied by the Court
in Cavile v. Heirs of Cavile, because the lone petitioner who
executed the certification of non-forum shopping was a
relative and co-owner of the other petitioners with whom he
shares a common interest. x x x
xxx
Here, all the petitioners are immediate relatives who share a
common interest in the land sought to be reconveyed and a common
cause of action raising the same arguments in support thereof. There was
sufficient basis, therefore, for Domingo Hernandez, Jr. to speak for and in
behalf of his co-petitioners when he certified that they had not filed any
action or claim in another court or tribunal involving the same
issues. Thus, the Verification/Certification that Hernandez, Jr. executed
constitutes substantial compliance under the Rules.[14] (citations omitted)
Furthermore, we have consistently held that verification of a pleading is a formal,
not a jurisdictional, requirement intended to secure the assurance that the matters
alleged in a pleading are true and correct. Thus, the court may simply order the
correction of unverified pleadings or act on them and waive strict compliance with the
rules. It is deemed substantially complied with when one who has ample knowledge to
swear to the truth of the allegations in the complaint or petition signs the verification;
and when matters alleged in the petition have been made in good faith or are true and
correct.[15] It was based on this principle that this Court had also allowed herein
petitioner, via our Resolution[16] dated April 22, 2009, a chance to submit a verification
that complied with Section 4, Rule 7 of the Rules of Court, as amended, instead of us
dismissing the petition outright.
Liberal interpretation of the ruleIt has also been held that the rules on forum shopping, which were
precisely designed to promote and facilitate the orderly administration of
justice, should not be interpreted with such absolute literalness as to subvert
66

its own ultimate and legitimate objective which is the goal of all rules of
procedure that is, to achieve substantial justice as expeditiously as possible
(Great Southern Maritime Services Corp. vs. Acuna 452 SCRA 422). Hence,
the rule is subject to the power of the SC to suspend procedural rules and to
lay down exceptions to the same.
Examples:
While a petition for certiorari is flawed where the certification of nonforum shopping was signed only by counsel and not by the party, this
procedural lapse was overlooked by the Court in the interest of justice (Sy
Chin vs. CA 345 SCRA 673). In another case, the fact that the parties were
abroad at a time when the petition was filed, was considered a
reasonable cause to exempt the parties from compliance with the
requirement that they personally execute the certification against forum
shopping (Hamilton vs. Levy 344 SCRA 821). In De Guia vs. De Guia 356
SCRA 287, the SC went to the extent of invoking its power to suspend
the Rules by disregarding the absence of the certification against
forum shopping in the interest of justice.
In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that where the
petitioners were sued jointly as Mr. and Mrs. over a property in
which they were alleged to have common interest, the signing of
the certification by one of the petitioners was held to be a
substantial compliance of the rule. In a subsequent ruling in the case of
Docena vs. Lapesura (355 SCRA 658), where only the husband signed the
certificate against forum shopping in a petition involving the conjugal
residence of the spouses, the SC considered the certification as having
substantially complied with the requirements.
In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a similar ruling was
made where the Court held that there was substantial compliance with the
Rules where only one petitioner signed the certification against forum
shopping in behalf of all the other petitioners being all relatives and coowners of the properties in dispute, and who shared a common interest in
them, had a common defense in the complaint for partition, filed the petition
collectively, and raised only one argument to defend their rights over the
properties in question.
In Bases Conversion Development Authority GR No. 144062, November 2,
2006, while only one petitioner signed the verification and certification, it
was held that such fact is not fatal to the petition. The Court ruled that
the signature of a principal party satisfies the requirement because
under the Rules it is clear that the certification may be signed by a
principal party.
67

In HLC Construction and Development Corp. vs. Emily Homes Subdivision

Homeowners Association 411 SCRA 504, the Court ruled that the signature of
only one petitioner substantially complied with the rules because all the
petitioners shared a common interest and invoked a common cause of
action or defense.
Lack of certification not cured by subsequent submissionIn appeal by certiorari to the Supreme Court, the lack of certification is
generally not curable by the submission thereof after the filing of the
petition. Sec. 5, Rule 45 of the 1997 Rules provides that failure of the
petitioner to submit the required documents that should accompany the
petition, including the certification, required in Sec. 4, Rule 45, shall be
sufficient ground for the dismissal thereof.
Exceptions
In certain exceptional circumstances, however, the Court has allowed the
belated filing of the certification. In all these cases, there were special
circumstances or compelling reasons that justified the relaxation of
the rule.
Lack of authority to sign certificationThe same liberal construction applies to certifications against forum
shopping signed by the person on behalf of a corporation which are
unaccompanied by proof that said signatory is authorized to file a petition on
behalf of the corporation. A liberal interpretation is given to the rule
more so where the petitioner did submit a certification against
forum shopping, but he failed only to show proof that the signatory
was authorized to do so. In several cases, (Shipside Incorporated vs. CA
404 SCRA 981; Ateneo de Naga University vs. Manalo 458 SCRA 325, etc) the
Court permitted the subsequent submission of proof of authority to sign the
certification against forum shopping.
Signing the Certification when the plaintiff is a juridical personA juridical entity, unlike a natural person, can only perform physical acts
through properly delegated individuals. The certification against forum
shopping where the plaintiff or a principal party is a juridical entity, like a
corporation, may be executed by properly authorized persons. This person
may be the lawyer of the corporation. As long as he is duly authorized
by the corporation and has personal knowledge of the facts required
to be disclosed in the certification against forum shopping, the
certification may be signed by the authorized lawyer (National Steel
Corporation vs. CA 388 SCRA 85).
Authority to sign Certification of Non Forum Shopping68

A board resolution purporting to authorize a person to sign documents on

behalf of the corporation must explicitly vest such authority. The
signing of verifications and certifications against forum shopping is
not integral to the act of filing; this may not be deemed as necessarily
included in an authorization merely to file cases. (MCWD vs. Margarita A.
Adala, GR No. 168914, July 4, 2007)
Certification against forum shopping and Verification; ratification by the Board of
Directors.
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-Mindanao
Station, et al.; G.R. No. 192615, January 30, 2013
A closer look into the SPA and the Corporate Secretarys Certificate submitted by
BPI reveals that, at the time the subject complaint was filed on January 26, 1999,
Ramos did not have the express authority to file and sign the verification and
certification against forum shopping attached to BPIs complaint. The SPA, which
appointed Ramos and/or Atty. Mateo G. Delegencia as BPIs attorneys-in-fact in the
case against the petitioners, was executed only on July 8, 2008. Even the Corporate
Secretarys Certificate that named the officers authorized by the BPIs Executive
Committee to grant and extend a SPA to other officers of the bank was executed only on
February 21, 2007. The Executive Committee is part of the banks permanent
organization and, in between meetings of BPIs Board of Directors, possesses and
exercises all the powers of the board in the management and direction of the banks
affairs.
BPIs subsequent execution of the SPA, however, constituted a ratification of
Ramos unauthorized representation in the collection case filed against the
petitioners. A corporation can act only through natural persons duly authorized
for the purpose or by a specific act of its board of directors, and can also ratify
the unauthorized acts of its corporate officers. The act of ratification is
confirmation of what its agent or delegate has done without or with insufficient
authority.
In PNCC Skyway Traffic Management and Security Division Workers Organization
(PSTMSDWO) v. PNCC Skyway Corporation, we considered the subsequent execution
of a board resolution authorizing the Union President to represent the union in a petition
filed against PNCC Skyway Corporation as an act of ratification by the union that cured
the defect in the petitions verification and certification against forum shopping. We held
that assuming that Mr. Soriano (PSTMSDWOs President) has no authority to file the
petition on February 27, 2006, the passing on June 30, 2006 of a Board Resolution
authorizing him to represent the union is deemed a ratification of his prior execution, on
February 27, 2006, of the verification and certificate of non-forum shopping, thus curing
any defects thereof.

69

No appeal from an order of dismissal without prjudice; remedy is

Certiorari under R 65 or to refile
If a complaint is dismissed for failure to comply with required
certification, the plaintiff cannot appeal from such order. This is
because an order dismissing an action without prejudice is not
appealable. The remedy provided for under Sec. 1 of Rule 41 is to
avail of the appropriate special civil action under Rule 65 (Sec. 1[g],
Rule 41 as amended, Rules of Court.
Effect of willful and deliberate forum shopping
Pursuant to Sec. 5, it will result to a summary dismissal, that is,
without need of a motion to dismiss and hearing and the dismissal
is with prejudice. Appeal can be a roper remedy.
Effect of submission of a false certification
It shall constitute 1. indirect contempt 2. without prejudice to the
corresponding administrative and criminal sanctions (Sec.5)
Effect of non-compliance with the undertakingsIt has the same effect as the submission of a false certification (Sec.5),
hence shall constitute indirect contempt without prejudice to the
corresponding administrative and criminal sanctions (Sec. 5).
OTHER REQUIREMENTS
All pleadings, motions and papers filed in court by counsel shall bear in
addition to 1.) counsels current Professional Tax Receipt Number
(PTR), 2.) counsels current IBP official receipt number indicating its
date of issue. Pleadings motions and papers which do not comply with this
requirement may not be acted upon by the court, without prejudice
to whatever disciplinary action the court may take against the
erring counsel who shall likewise be required to comply with the
requirement within 5 days from notice. Failure to comply with such
requirement shall be a ground for further disciplinary sanction and for
contempt of court (Circular No. 10, July 24, 1985; Bar Matter No. 287,
September 26, 2000.
On November 12, 2002, the SC granted the request of the Board of
Governors of the IBP and the Sangguniang Panlalawigan of Ilocos Norte to
require all lawyers to indicate their 3.) Roll of Attorneys Number in all
papers and pleadings filed in judicial and quasi-judicial bodies in addition
to the previously required current PTR and IBP OR. The requirement is
70

meant to protect the public by making it easier to detect impostors who

represent themselves as members of the Bar. Non-compliance has the
same effect as failure to indicate counsels IBP Receipt Number. This
requirement is directed only to lawyers and is not to be construed as
precluding a party who is not a lawyer from signing a pleading himself
(Bar Matter No. 1132, April 1, 2003)
All practicing lawyers are required to indicate in all pleadings filed before
the courts or quasi-judicial bodies, 4.) the number and date of issue of
their MCLE Certificate of Compliance or Certificate of Exemption.
Failure to disclose the information would cause the dismissal of the case
and the expunction of the pleading from the records (Bar Matter No. 1922
En Banc Resolution, June 3, 2008). Per En Banc Resolution of the Supreme
Court dated September 2, 2008, the effectivity date of the
implementation was moved from August 25, 2008 to January 1, 2009.
Reviewer
Parts of a pleading (Rule 7)
a. Caption
The Caption contains the following:
1. Name of the court
2. Title of the action
3. Docket number, if assigned (Rule 7, Sec. 1)
The Body sets forth:
1. Designation
2. Allegations of the partys claims and defenses
3. Relief prayed for (may add a general prayer for such further or other relief as may
be deemed just and equitable)
4. Date of the pleading (Rule 7, Sec. 2)
b. Signature and address
Rule,7 Sec. 3. Signature and address .
Every pleading must be signed by the party or counsel representing him, stating in either
case his address which should not be a post office box.
The signature of counsel constitutes a CERTIFICATE by him that
(a) he has read the pleading;
(b) to the best of his knowledge, information, and belief there is good ground to support it ;
and
(c) it is not interposed for delay.
An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.
Counsel who
71

(a) deliberately files an unsigned pleading, or

(b) signs a pleading in violation of this Rule, or
(c) alleges scandalous or indecent matter therein, or
(d) fails to promptly report to the court a change of his address, shall be subject to appropriate
DISCIPLINARY
ACTION.
c. Verification and certification against forum shopping
(1) Requirements of a corporation executing the verification/certification of
non-forum shopping
Verification
How is verification made?
It is verified by an affidavit which declares that the:
1. Affiant has READ the pleading; and
2. Allegations therein are TRUE AND CORRECT of his PERSONAL KNOWLEDGE or
BASED ON AUTHENTIC RECORDS (Rule 7, Sec. 4)
A pleading required to be verified which contains a verification based on information an belief or
upon knowledge, information and belief, or lacks a proper verification shall be treated as an
UNSIGNED pleading (Rule 7, Sec. 4).
What is the significance of verification?
It is intended to secure an assurance that the allegations in a pleading are true and correct and not
the product of the imagination or a matter of speculation, and that the pleading is filed in good
faith. The absence of a proper verification is cause to treat the pleading as unsigned and
dismissible. (Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Is verification a jurisdictional requirement?
NO. The requirement regarding verification of a pleading is a FORMAL, nor jurisdictional. Such
requirement is simply a condition affecting the form of a pleading, non compliance with which
does not necessarily render the pleading fatally defective (Uy vs. Land Bank of the Phils., 336
SCRA 419 [2000]).
The absence of the signature of the person misjoined as a party-plaintiff in either the verification
page or certification against forum-shopping is not a ground for the dismissal of the action
(Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Forum Shopping
Certification against forum shopping is required in filing a complaint and other initiatory
pleadings asserting a claim or relief (Rule 7, Sec. 5). This rule applies as well to special civil
actions since the rules for ordinary civil action are suppletory.
When is there forum shopping?
There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari in another. There can also be forum
shopping when a party institutes two or more suits in different courts, either simultaneously or
72

successively, in order to ask the courts to rule on the same or related causes and/or to grant the
same or substantially the same reliefs on the supposition that one or the other court would make
a favorable disposition or increase a partys chances of obtaining a favorable
decision or action. (Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006)
Test to determine forum-shopping:
To determine whether a party violated the rule against forum shopping, the most important
question to ask is whether the elements of litis pendentia are present or whether a final judgment
in one case will result to res judicata in another.Thus, the test is
whether in the two or more cases pending, there is identity of:
1. Parties
2. Rights or causes of action
3. Reliefs sought (Huibonhoa v. Concepcion, supra)
Who executes certification against forum-shopping?
It is the plaintiff or principal party who executes the certification under oath ( Rule 7, Sec. 5).. It
must be signed by the party himself and cannot be signed by his counsels. The reason the
certification against forum shopping is required to be accomplished by petitioner himself is
because only the petitioner himself has actual knowledge of whether or not he has initiated
similar actions or proceedings in different courts or agencies. (Digital Microwave Corp. vs. CA,
G.R. No. 128550, March 16, 2000).
What are the undertakings of a party under the certification against forum shopping?
1. That the party has not commenced or filed any claim involving the same issues in any court,
tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim
is pending;
2. That if there is such other pending action or claim, a complete statement of the present status
thereof;
3. That if he should therefore learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed ( Rule 7, Sec. 5)
In what ways may forum shopping be committed?
1. Filing multiple cases based on the same cause of action and with the same prayer, the previous
case not having been resolved yet (litis pendentia)
2. Filing multiple cases based on the same cause of action and the same prayer, the previous case
having been finally resolved (res judicata )
3. Filing multiple cases based on the same cause of action but with different prayers (splitting
causes of action ) where the ground for dismissal is also either litis pendentia or res judicata).
Effect of forum shopping
1. If the forum shopping is NOT considered WILFUL and DELIBERATE, the subsequent cases
shall be DISMISSED WITHOUT PREJUDICE on one of the two grounds mentioned above
Non-compliance with the rule on certification against forum shopping is not curable by mere
amendment and shall be a cause for the dismissal of action without prejudice, unless otherwise
provided, upon motion and after hearing (Rule 7, Sec.5)
73

2. If the forum shopping is WILFUL and DELIBERATE, both (or all, if there are more than two
actions) shall be DISMISSED WITH PREJUDICE (Ao-As vs. CA, 491 SCRA 353 [2006])
Willfull and deliberate forum shopping of the party or his counsel shall be a ground for summary
dismissal . This dismissal is with prejudice and shall constitute DIRECT CONTEMPT as well as
cause for administrative sanctions on the part of counsel. (Rule 7, Sec. 5)
What are the requirements of forum shopping certificate for a corporation?
Only individuals vested with authority by a valid board resolution may sign the certificate of
non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of
said authority must be attached. Failure to provide a certificate of non-forum shopping is
sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a
certification was submitted unaccompanied by proof of the signatory's authority. (Philippine
Airlines, Inc. vs. Flight Attendants and Stewards Association of the Philippines (FASAP), G.R.
No. 143088. January 24, 2006)
*** Under Sections 4 and 5, Rule 7 of the 1997 Revised Rules on Civil Procedure, a pleading
must be accompanied by a verification as well as certification against forum shopping as signed
by the plaintiff or principal party. As a general rule, a person signing in behalf of a corporation
must be authorized by a board resolution. However, as exceptions, the following persons can
sign the verification and certification without a board resolution:
(1) the Chairperson of the Board of Directors,
(2) the President of a corporation,
(3) the General Manager or Acting General Manager,
(4) Personnel Officer, and
(5) an Employment Specialist in a labor case.
Nevertheless, the better procedure is still to append a board resolution to the complaint or
petition so as to not invite questions as to the authority of the signatory to sign the verification
and certification. (South Cotabato Communications Corporation vs. Sto. Tomas, G.R. No.
173326, December 15, 2010 [TDC]) - TDC
However, subsequent submission of Secretarys Certificate is
substantial compliance with
the requirement that a Board Resolution must authorize the officer executing the non-forum
certification on behalf of the corporation. (Vicar International Construction, Inc. vs. Feb
Leasing and Financing Corp., G.R. No. 157195, April 22, 2005)
d. Effect of the signature of counsel in a pleading
The signature of counsel constitutes a certificate by him that
1. he has read the pleading;
2. that to the best of his knowledge, information, and belief there is good ground to support it;
and
3. that it is not interposed for delay. (par. 2, Rule,7 Sec. 3.)

74

Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general Every pleading shall contain in
a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere evidentiary
facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their applicability to
him shall be clearly and concisely stated.
Ultimate not evidentiary facts must be allegedPleadings must only state the ultimate facts where one relies on for his/her
defense or claim. You must omit the statement of evidentiary facts.
Ultimate factsQ: What are ultimate facts?
A: Ultimate facts are those, which are essential to ones cause of action or
defense. Ultimate facts refer to those, which directly form the basis of the
right sought to be enforced or the defense relied upon. If the ultimate facts
are not alleged, the cause of action will be insufficient.
The ultimate facts refer to the essential facts of the claim. A fact is
essential if it cannot be stricken out without leaving the statement
of the cause of action insufficient (Ceroferr Realty Corporation vs. CA
376 SCRA 144).
The ultimate facts are the important and substantial facts which form the
basis of the primary right of the plaintiff and which make up the wrongful act
or omission of the defendant. The ultimate facts do not refer to the details of
probative matter or to the particulars of evidence by which the material
elements are to be established. They are the principal, determinate,
constitutive facts, upon the existence of which, the entire cause of action
rests. (Tantuico, Jr. vs. Republic, 204 SCRA 428)

75

Q: How do you determine whether a fact is essential to your cause of action

or defense?
A: The test to determine whether the fact is essential to your cause of action
is: if the statement in the pleading cannot be deleted because if you delete
it, the statement of your cause of action or defense become incomplete, a
certain element of cause of action disappears then it must be a statement of
ultimate fact.
Q: What are the essential elements of a cause of action?
A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.
Evidentiary Facts
Q: What are evidentiary facts?
A: Evidentiary facts are the facts, which will prove the ultimate facts. They
are proper during the trial but they have no place in your pleading.
Evidentiary facts refer to those which are necessary to prove the ultimate
fact or which furnish evidence of the existence of some other facts.
In the law on Evidence, ultimate facts are called factum probandum as
distinguished from factum probans (evidentiary facts).
EXAMPLE: In a land dispute, the question is: Who has been in
possession of the land for a long time?
Correct form:
Plaintiff has been in possession of this land continuously for the past 30
years up to the present.
That is a statement of ultimate fact because that shows your right
your right over the property that you cannot be driven out.
Wrong form:
Plaintiff has been in possession of the said property
continuously, openly for the past 30 years from 1967 to
1997 as may be borne out by the following:
He entered the property in 1967. He cleared the
property by cutting the grass. In 1968, he planted 20
coconut trees. In 1969, he planted 50 coconut trees. In
76

1970, he planted mango trees. In 1971, he planted guava.

He will recite everything from 1967 to 1997.
The form is wrong because you are stating evidentiary facts.
How do you present the facts?
In a methodical and logical form.
Q: Apart from evidentiary facts, what are the other matters that should
not be stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be
alleged.
FACTS WHICH ARE PRESUMED BY LAW
Example:
Negligence in culpa contractual
Q: In a case of breach of contract against an operator of the common carrier.
Do you think it is necessary for the plaintiff to allege that the driver acted
negligently? Is an allegation that the driver of the carrier acted with
negligence required?
A: NO. There must be negligence, otherwise, there would be no cause of
action. However there is no need to allege it in the complaint because under
the Civil Code, whenever there is a breach of contract of carriage, there is a
presumption of negligence on the part of carrier. It is not for the passenger to
prove that the common carrier is negligent. It is for the common carrier to
prove that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing
contract between the parties, the liability of the defendant hinges on
negligence. There must be allegation of negligence. The defendant must be
alleged to have acted negligently to hold him liable otherwise, there is no
cause of action. It becomes an ultimate fact which should be alleged in the
pleading.
CONCLUSIONS OF FACT OR LAW
For EXAMPLE, where plaintiff said that he is entitled to moral damages or
attorneys fees. That is not a statement of fact but your conclusion.
Statement of fact is to cite the factual basis like sleepless nights etc.
77

MATHAY vs. CONSOLIDATED BANK

58 SCRA 559
HELD: A bare allegation that one is entitled to something is an
allegation of a conclusion. Such allegation adds nothing to the
pleading, it being necessary to plead specifically the facts upon
which such conclusion is founded.
EXAMPLE:
The complaint alleges that the defendants are holding the plaintiffs
property in Trust for the plaintiff according to the SC in the case of MATHAY is
merely a conclusion of the plaintiff. It is a conclusion of law.
A conclusion or statement of law is also not allowed although there
is an exception under the second paragraph of Section 1 which says
that if a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely
stated.

ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR

DEFENSES
Sec. 2. Alternative causes of action or defenses. - A
party may set forth two or more statements of a claim
or defense alternatively or hypothetically, either in
one cause of action or defense or in separate causes of
action or defenses. When two or more statements are
made in the alternative and one of them if made
independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more
of the alternative statements. (2)
Pleading alternative causes of actionThe provision recognizes that the liability of the defendant may possibly
be based on either one of two possible causes of action. The plaintiff, may for
example, believe that the liability of the carrier may be based either on a
breach of contract of carriage or on a quasi-delict, but he may not be certain
which of the causes of action would squarely fit the set of facts alleged in the
complaint, although he is certain that he is entitled to relief. He may
therefore, state his causes of action in the alternative. This provision in
78

effect, also relieves a party from being compelled to choose only one cause
of action.
Q: What happens if one cause of action is insufficient? Will it cause the
dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is
stated. The insufficiency of one will not affect the entire pleading if the other
cause of action is insufficient.
EXAMPLE:
I read a case about a passenger who was about to board a bus. Of
course when you are a passenger and you get hurt, that is culpa
contractual. If you are not a passenger but you get hurt due to the
negligence of the driver, that is culpa aquiliana. So it depends
whether there is a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter
of fact, the left foot had already stepped on the bus. The bus
suddenly sped off. He fell.
He was injured. What is the basis
against the carrier? Is there a contract or none? There is because one
foot was already on it but others say there was no contract yet. You
dont really know whether your cause of action is culpa contractual or
culpa aquiliana. You want to claim damages but you are not sure
whether your case is based on culpa contractual or culpa aquiliana.
Its either one of the two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my
choice, I may allege 2 possible alternative causes of action. I will draft the
complaint in such a way that I will show to the court that my cause of action
is either culpa contractual or culpa aquilana. I will make sure that both
allegations are covered. You cannot be wrong because the law does not
require you to make a choice.
Pleading alternative causes of action normally leads to inconsistent
claims. For instance, the elements of a cause of action based on a
contractual theory are inconsistent with those of a cause of action based on
a quasi-delict. As previously discussed, a suit based on a breach of contract
of carriage for example, does not require an allegation and proof of
negligence because it is not an element of a breach of contract suit (Calalas
vs. CA 332 SCRA356; FGU Insurance Corp. vs. GP Sarmiento Trucking Corp.
386 SCRA 312). On the other hand, negligence as a rule, is an essential
element of a suit based on a quasi-delict (Art. 2176, Civil Code).
Under Sec. 2, this situation is permissible as long as the allegations
pleaded within a particular cause of action are consistent with the cause of
79

action relied upon as an alternative. Thus, if the alternative cause of action is

a breach of contract, the allegations therein must support the facts
constituting the breach of the contract.
Pleading Alternative DefensesQ: You are the defendant. You are confronted with the same problem.
There is a complaint against you and you have 3 possible defenses. Am I
obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses
alternatively.
No matter if your defenses are inconsistent Section 2, Rule 8 allows the
defendant to plead his defenses hypothetically or alternatively. They may be
inconsistent with each other but what is important is each defense is
consistent in itself. Meaning, each defense, when taken alone, is a good
defense. You look at them separately. Do not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid
loan. The basic allegation is that the defendant obtained a sum of
money by way of loan and never paid it. Here is defendants
answer:
a.) That is not true. I never borrowed any money from the plaintiff.
That is a defense of denial.
b.) Assuming that I received money from the plaintiff, that money was
not a loan but plaintiffs birthday gift to me. In other words, it was
a donation.
c.) Assuming that the money I received from the plaintiff was really a
loan. However, such amount was completely paid. Defense of
payment.
So, I have 3 defenses. How can you reconcile these 3
inconsistent with each other but it should not be
defendant. What is important is that each defense is
Look at them separately. That is also called a SHOTGUN

defenses? They are

taken against the
consistent in itself.
ANSWER.

Rule is consistent with the omnibus motion ruleThe rule allowing alternative defenses is consistent with the omnibus
motion rule which requires that all motions attacking a pleading shall include
all objections then available, and all objections not so included shall be
deemed waived (Sec. 8, Rule 15)
During trial only one can be proven80

However, during that trial, you have to choose among them, which you
think is true based on evidence. The problem is that you choose one but it
turned out that a different defense would be correct. You cannot use that
defense anymore. There is a prejudice because during the trial, I will choose
among them with the evidence I have. I can abandon the others. And that
is even better because you might confuse the plaintiff of what really is your
defense. Thus, a lawyer should not be afraid to hypothetically or alternatively
plead defenses, which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader
may show the best one rather than not stating it in the pleading and during
the trial you waive the best defense because according to the next rule, Rule
9, defenses or objections not pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related provisions
we have already taken up: For EXAMPLE:
1.) Rule 2, Section 5 where a party may, in one pleading state in the
alternative or otherwise, as many causes of action;
2.) Rule 3, Section 6 on permissive joinder of parties. When may 2
persons or more be joined as plaintiffs or defendants and how are
they joined? They are joined jointly, severally, or alternatively; and
3.) Rule 3, Section 13 on alternative defendants. When you are
uncertain who is the real defendant, you may join them
alternatively although the relief against one may be inconsistent
with the other.
HOW ALLEGATIONS IN A PLEADING ARE MADE
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?
A: The following:
1.) Rule 8, Section 3 Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence Conditions of the mind;
3.) Rule 8, Section 6 Judgment;
4.) Rule 8, Section 9 Official document or act
Q: What averments must be done with PARTICULARITY?
A: The following:
1.) Rule 8, Section 4, first sentence Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence Legal existence of any party to
sue or be sued;
3.) Rule 8, Section 5, first sentence Fraud or mistake
81

ALLEGATION OF A CONDITION PRECEDENT

Sec. 3. Conditions Precedent. - In any pleading, a
general averment of the performance or occurrence of
all conditions precedent shall be sufficient. (3)
Common usage refers to conditions precedent as matters, which must be
complied with before a cause of action arises. When a claim is subject to a
condition precedent, the compliance of the same must be alleged in the
pleading.
Remember, that one of the elements of a right of action is that before you
can go to court, you must comply with all the conditions precedent.
Examples of conditions precedent:
(a) A tender of payment is required before making a consignation (Art.
1256 Civil Code);
(b)Exhaustion of administrative remedies is required in certain cases
before resorting to judicial action (Lopez vs. City of Manila, 303 SCRA
448; Dy vs. CA 304 SCRA 331);
(c) Prior resort to barangay conciliation proceedings is necessary in certain
cases (Book III, Title I, Chapter 7, Local Government Code of 1991);
(d)Earnest efforts toward a compromise must be undertaken when the
suit is between members of the same family and if no efforts were in
fact made, the case must be dismissed (Art. 151 Family Code);
(e) Arbitration may be a condition precedent when the contract between
the parties provides for arbitration first before recourse to judicial
remedies.
The failure to comply with a condition precedent is an independent ground
for a motion to dismiss: that a condition precedent for filing the claim has not
been complied with (Sec. 1[j], Rule 16)
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a
party to sue or to be sued or the authority of a party
to sue or to be sued in a representative capacity or
the legal existence of an organized association of
persons that is made a party, must be averred. A party
82

desiring to raise an issue as to the legal existence of

any party or the capacity of any party to sue or be
sued in a representative capacity, shall do so by
specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's
knowledge. (4)

ALLEGATION OF FRAUD OR MISTAKE

Sec. 5. Fraud, mistake, condition of the mind.- In
all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge or other
condition of the mind of a person may be averred
generally. (5a)
Fraud and mistakeEXAMPLE: In annulment of a contract, fraud is one ground. Suppose the
consent was secured through fraud and plaintiff files a case that the
defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake must be
stated with particularity. The complaint must state how the fraud was
committed. It must be described in detail how the fraud took place.
Malice, Intent, knowledge or conditions of the mindQ: In the second sentence, why is it that malice, intent, etc. may be
averred generally?
A: A general averment of malice or intent suffices because one cannot
describe or particularize what is in the mind of a party. I cannot describe in
detail the malice or the knowledge in your mind. I can only say it in general
terms. This is borne out of human experience.
Fraud, on the other hand, is employed openly, by overt acts. How you are
deceived is not only in the mind. Those are manifested by external acts.
Therefore, one can describe how a fraud was committed by the other party.
Sec. 6. Judgment. In pleading a judgment or decision
of a domestic or foreign court, judicial or quasijudicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without
83

setting forth matter showing jurisdiction to render it.

(6)
Sometimes a party invokes a judgment or cites a previous case like res
adjudicata to dismiss a case. How should it be alleged?
Q: Suppose you will ask the court to dismiss the case because there was
already judgment rendered by the court years ago and you simply say,
There was a previous judgment. Is this sufficient?
A: YES because the law presumes that the judgment is valid. And the
presumption is that the court had jurisdiction. You do not have to say that
the court had jurisdiction over the subject matter, issues, etc. when it tried
the case years ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an
official document or official act, it is sufficient to
aver that the document was issued or the act done in
compliance with law. (9)
One can just plead the existence of a document made by the government.
EXAMPLE: official letter of the President, or official communication by a
government agency. It is sufficient to aver that the document was issued or
an act done.
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon a written
instrument
or
document,
the
substance
of
such
instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading. (7)
Q: What is an actionable document?
A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation
of the cause of action or defense and not merely an evidence of the cause of
action or defense. (Araneta, Inc. vs. Lyric Film Exchange, 58 Phil. 736)
So a promissory note to collect an unpaid loan is not only an evidence of
your cause of action but is it is the very cause of action or foundation of your
cause of action. On the other hand, when I have a receipt, the receipt is not
only evidence of your defense but is the very foundation of your defense. If I
84

would like to sue you to annul a written contract, the contract to be

rescinded or annulled is the very cause of your action.
But in a collection case, if aside from the promissory note I wrote you
several letters of demand to pay, such letters, while they are relevant to the
collection case, do not serve as the foundation of your cause of action,
although they are also important.
Q: What is the purpose of the distinction between actionable and
non-actionable document?
A: If the document is not actionable, there is no need to follow Section 7.
If it is actionable, it must be pleaded in the manner mentioned in Section 7.
Also in Section 8, it is needed to know how to contest the genuineness of the
document.
Q: And how do you plead an actionable document under Section
7?
A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in
the pleading and the original or a copy thereof shall be attached as
an exhibit; or
2.) The copy of the document may with like effect be quoted in the
pleading, in which case, there is no need to attach the copy.
Q: Suppose in the first way, the promissory note was not
attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to
dismiss the complaint for violation of the rules, if such document could not
be secured.
If an actionable document is properly pleaded in your pleading in the
manner mentioned in Section 7, the adverse party is now obliged to follow
Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an
action or defense is founded upon a written 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
admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims
to be the facts; but the requirement of an oath does
not apply when the adverse party does not appear to be
a party to the instrument or when compliance with an

85

order for an inspection of the original instrument is

refused. (8a)
Q: Does every pleading have to be under oath?
A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8
or in order to contest an actionable document.
To contest:
(a) You must specifically deny the genuineness and due execution of the
document under oath; and
(b)You set forth what you claim to be the facts.
If the denial is not verified and under oath, the genuineness and due
execution of the promissory note is deemed admitted.
EXAMPLE: If the plaintiff sues you based on a promissory note which is
properly pleaded under Section 7 and you would like to contest the
genuineness and due execution of the note like when the figure was altered
to P20,000 instead of P1,000 only, so there is falsification, then you must
deny the genuineness and due execution in your answer specifically and
most importantly your answer must be VERIFIED AND UNDER OATH.
Q: When you say you have admitted the genuineness and due
execution of the document, what are the specific facts that you
have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE (32
Phil. 476):
1.) The party whose signature it bears signed it;
2.) If signed by another, it was signed for him and with his authority;
3.) At the time it was signed, it was in words and figures exactly as set out
in the pleading of the party relying upon it;
4.) The document was delivered; and
5.) The formal requisites of law, such as seal, acknowledgement
(notarization) or revenue stamp which it lacks, are waived by it.

86

Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
document?
A: The following:
1.) The signature appearing in the document is a forgery;
2.) In case it was signed by an agent in behalf of the corporation or
partnership, or a principal, the signature was unauthorized;
3.) The corporation was not authorized under its charter to sign the
instrument;
4.) The party charged signed it in some other capacity than that
alleged in the pleading; and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
6.) The document was not in words and figures as set out in the
pleadings (Imperial Textile Mills vs. CA 183 SCRA 584)
Q: What defenses may be interposed notwithstanding admission
of genuineness and due execution of an actionable document as
aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
11.) usury
12.) statute of frauds
13.) prescription
14.) release
15.) waiver
16.) former discharge in bankruptcy
Q: May the benefit of the admission of genuineness and due execution of an
actionable document be waived? If so, in what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuineness and
due execution and the adversary proved, without objection, the
contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608);
87

2.) Where the pleader fails to object to evidence controverting the due
execution. (Legarda Koh vs. Ongsiaco, 36 Phil. 185)
When mere specific denial though not under oath still validQ: When may a simple denial suffice? Meaning, what are the instances
where the denial of the genuineness of the document, though not under
oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to the
instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based
on a contract entered by them. But before Ms. Guadalope filed the
case, Ms. Castillo died. So Ms. Guadalope filed against the heirs. The
heirs realized that the signature of Ms. Castillo in contract as forged.
Even if the answer of the heirs is not under oath, they can still prove
forgery because they are not party to the instrument.
2.) When compliance with an order for an inspection of the original
instrument is refused;
3.) When the document to be denied is not classified as an actionable
document but merely an evidentiary matter. This is because when
the document if not actionable, there is no need to follow Section 7.
REPLY;
General rule: Reply is optional; Exception- Section 8
Normally, the person who is presenting the actionable document is the
plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable
document for his defense. He claims to have paid the loan and have
attached a copy of the RECEIPT to his answer. The plaintiff looks at the
document and realizes that his signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the
receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny under oath
the genuineness and due execution of the receipt?
88

A: Plaintiff should file a REPLY and it must be under oath. If he will not file
a reply, the receipt is impliedly admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a
reply is optional. How do we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because
the former is a specific provision that applies only to actionable document. It
has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable document
and plaintiff will deny the genuineness and due execution of such document.
SPECIFIC DENIAL
Section 10 of Rule 8 relates with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be negative or
affirmative.
a.
A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
x x x
In an answer, according to Sec. 5 of Rule 6, defenses may either be
negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the
statement in the complaint by stating the facts and the reason/s on which his
denial is based.
Q: How is a specific denial done?
A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each
material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a part of an
averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to
form a belief as to the truth of a material averment made in
89

the complaint, he shall so state, and this shall have the

effect of a denial. (10a)
Purpose of specific denialThe purpose is to make the defendant disclose the matters
alleged in the complaint, which he succinctly intends to
disprove at the trial, together with the matter, which he
relied upon to support the denial. The parties are compelled
to lay their cards on the table (Aquintey vs. Tibong, GR No.
166704, December 20, 2006)
Also, issues are conferred.
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material
allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the
substance of the matters upon which he relies to
support his denial
Q: What happens if a denial violates this first mode? Meaning, the pleader
did not set forth the substance of the matters relied upon to support his
denial.
A: That is known as GENERAL DENIAL and it will have the effect of
automatically admitting the allegations in the complaint.
Q: Suppose the pleader will say, Defendant specifically denies the
allegations in paragraph 2,4,7 without any further support for the denial.
Is the denial specific?
A: NO. A denial does not become specific simply because he used the
word specific. (Cortes vs. Co Bun Kim, 90 Phil. 167) What makes a denial
specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only
a part of an averment, he shall specify so much of it
as is true and material and shall deny only the
remainder.

90

Sometimes an allegation may consist of 2 or more parts. Therefore the

answer may admit part 1 but part 2 is denied. Or, the substance of the
allegation is actually admitted by the qualification there is denied.
EXAMPLE: Plaintiff alleges that the Defendant is in possession of the
property under litigation in bad faith. Now, the defendant may admit that
the property is in his possession but he denies the qualification in bad faith
possession is not in bad faith. Based on that, the defendant should say,
Defendant admits that portion of paragraph no. 2 that he is in possession of
the property in question; but denies that he is a possessor in bad faith or
something to that effect.

THIRD MODE: Where a defendant is without knowledge

or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he
shall so state, and this shall have the effect of a
denial
Meaning, I am not in a position to admit or to deny because I have no
knowledge. How can I admit or deny something which I do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant
destroyed his reputation. Defendant does not know that Plaintiff had
sleepless nights, wounded feelings, serious anxiety, etc. Here, Defendant
cannot admit or deny those.
However, the SC warned that he third mode of denial should be done in
good faith. If the fact alleged is such that it is within your knowledge, it is
impossible that it is not within your knowledge, you cannot avail of the third
mode of denial. Otherwise, if you will avail of the third mode in bad faith,
your denial will be treated as an admission. That is what happened in
CAPITOL MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, Defendant
borrowed money from plaintiff in the sum of P10,000 payable one year from
said date. And then you say, I have no knowledge or information There
is something wrong there. What you are trying to say there is I do not know
whether I borrowed money from you or not.
Equitable Cardnetwork, Inc. v. Capistrano, G.R. No. 180157, February 8, 2012
- Answer with allegations of no knowledge is as a rule, not acceptable as specific
denial.
EXCEPTION: unless done in good faith.
91

however, if it is coupled with assertion that the defendant was denying the
allegations regarding those actionable documents, stating that she never applied
for membership with the card company, these reasons cannot be ignored and
they form part of the answer.

Negative Pregnant
A negative pregnant does not qualify as a specific denial. It is conceded to
be actually an admission.
In a pleading, it is a negative implying also an affirmative and which
although is stated in a negative form really admits the allegations to which it
relates.
Example:
A complaint alleges:
Plaintiff extended a loan to Defendant in the amount of P500,000.00 on
July 27, 2006 in Cebu City.
The defendant in his Answer states:
Defendant specifically denies that Plaintiff extended a loan to Defendant
in the amount of P500,000.00 on July 27, 2006 in Cebu City.
The answer is a mere repetition of the allegations made in the complaint.
The answer is vague as to what it really denies. Is it the existence of the loan
that is denied? Is it the amount? The date? The place?
The effect of this kind of denial is an admission.
When a specific denial must be coupled with an oath:
(a) A denial of an actionable document (Sec. 8); and
(b)A denial of allegations of usury in a complaint to recover usurious
interest (Sec. 11)
The allegations of usury which requires a specific denial under oath are:
(a) Allegations of usury in a complaint (not allegations of usury in the
answer), and
(b)The complaint is filed to recover usurious interests (Sec. 11, R 8)

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Sec. 11. Allegations not specifically denied deemed

admitted. Material averment in the complaint, other than
those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath. (1a, R9)
GENERAL RULE: Material averment in a complaint shall be deemed
admitted when not specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed
admitted even when not specifically denied:
1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932,
Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver
ultimate facts; (Agaton vs. Perez, L-19548, Dec. 22, 1966)
4.) Conclusions of facts or law.
Lets discuss the first exception AMOUNT OF UNLIQUIDATED DAMAGES is
not deemed admitted even if not specifically denied. So if the damages are
liquidated, they are deemed admitted. Examples of unliquidated damages
are moral and exemplary damages. Or expenses which I incurred in the
hospital. Those are unliquidated damages. They are always subject to
evidence. You have to prove how much amount you are entitled to. That is
why they are not deemed admitted even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or
besmirched reputation, and I did not specifically denied such claim, it does
not mean that you are automatically entitled to P1 million. Hindi yan
puwede. You have to present evidence that you are really entitled to P1
million. Yaan!
On the other hand, an example of liquidated damages is an obligation
with a penal clause. For example in our contract, it is stipulated that in case
you cannot comply with your obligation, you will pay me P1 million. So if you
failed to specifically deny it, then you are deemed to have admitted that I am
entitled to P1 million. There is no need for computation because the amount
is already in the contract beforehand. The contract itself would show how
much I am entitled.
Section 11 also says, Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under oath. Usury
means you charge interest above the legal interest provided by the usury
law. If you want to deny my charge of usury, your answer must be under
oath. So, this is the second instance where a denial should be verified.
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NOW, I wonder why this provision is here when as early as 1983 in the
case of LIAM LAW vs. OLYMPIC SAW MILL (129 SCRA 439), that usury is no
longer existing and the SC stated in that case that the provision of the Rules
of Court in usury are deemed erased or superseded. Obviously, the SC forgot
what it said in the 1983.
Sec. 12. Striking out of pleading or matter
contained therein. Upon motion made by a party before
responding to a pleading or, if no responsive pleading
is permitted by these Rules, upon motion made by a
party within twenty (20) days after the 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)
When to file a Motion to Strike Out a Pleading or Part of a PleadingBefore answering, the defendant can file a motion to strike out a pleading or
a portion of a pleading.
RULE 7, Sec. 3. Signature and address. x x x x
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for
delay. Counsel who 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 change of
his
address,
shall
be
subject
to
appropriate
disciplinary action.
So, if your pleading contains scandalous or indecent matters, the lawyer
who files it may be subjected to appropriate disciplinary actions.
Q: What if it is the reply is the one which contains scandalous matter?
A: A motion to strike may still be filed by the defendant within 20 days
after the reply.
Reviewer
Allegations in a pleading (Rule 8)
a. Manner of making allegations
Rule 8, Sec. 1. In general . Every pleading shall contain in a methodical and logical form, a
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plain, concise and direct statement of the ULTIMATE FACTS on which the party pleading relies
for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
(1) Condition precedent
In any pleading a general averment of the performance or occurrence of all conditions precedent
shall be sufficient. (Rule 8, Sec. 3.)
(2) Fraud, mistake, malice, intent, knowledge and other condition of the mind,
judgments, official documents or acts
Rule 8, Sec. 5. Fraud, mistake, condition of the mind.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be
stated with PARTICULARITY. Malice, intent, knowledge or other condition of the mind of a
person may be averred GENERALLY.
b. Pleading an actionable document
Rule, 8, Sec. 7. Action or defense based on document .
Whenever an action or defense is based upon a written instrument or document, the actionable
document shall be pleaded by setting forth:
1. The substance of such document in the pleading and attaching the original or copy thereof as
an exhibit
2. Said document verbatim in the pleading (Sec. 7, Rule 8).
c. Specific denials
Rule 8, Sec. 10. Specific denial.
A defendant must specify each material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial. Where a defendant desires to deny only a part of an averment, he shall specify
so much of it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information sufficient to form a belief as to the truth
of a material averment made in the complaint, he shall so state, and this shall have the effect of a
denial.
(1) Effect of failure to make specific denials
Rule 8, Sec. 11. Allegations not specifically denied deemed admitted.
Material averments in the complaint, other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath.
N.B. If the allegations are deemed admitted, there is no more triable issue between the parties
and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34
(2) When a specific denial requires an oath
Rule 8, Sec. 8. How to contest such documents .
When an action or defense is founded upon a written instrument (like a promissory note which is
the basis of a complaint for collection of sum of money), copied in or attached to the
corresponding pleading as provided in the preceding section, the GENUINENESS AND DUE
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EXECUTION of the instrument shall be deemed admitted unless the adverse party, under
oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement
of an oath does not apply (a) when the adverse party does not appear to be a party to the
instrument or (b) when compliance with an order for an inspection of the original instrument is
refused.

Rule 9
EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not pleaded.

Defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the
subject matter, that there is another action pending
between the same parties for the same cause, or that
the action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or
on answer are deemed waived. The court will acquire no jurisdiction over the
issues.
The policy is for the parties to lay all their cards on the table.
So, there is no such thing as a surprise defense because the defense must be
pleaded.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court
despite the fact that they are not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending between the same parties for
the same cause (litis pendentia);
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).
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Take note that the exceptions can be raised at any time during or after the
trial, or even for the first time on appeal. In other words, the court shall
dismiss the claim if any of the foregoing grounds appears from the
pleadings or the evidence on record.
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: The rule on waiver of defenses by failure to plead in the
answer or in a motion to dismiss does not apply when the plaintiffs
own allegations in the complaint show clearly that the action has
prescribed in such a case the court may motu propio dismiss the
case on the ground of prescription.
Under the 1964 Rules, one of the grounds that you can raise at any stage of
the proceeding before judgment is failure to state a cause of action, but it
disappeared under the new rules. Does it mean to say that you cannot raise
it anymore?
NO. It can still be raised because it can be taken care of by another rule
Rule 33 on Demurrer.(This is doubtful because in a demurrer to evidence the
ground is insufficiency of evidence or lack of cause of action not failure to
state a cause of action).
Sec. 2. Compulsory counterclaim, or cross-claim, not
set up barred. A compulsory counterclaim, or a crossclaim, not set up shall be barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and crossclaims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending
party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with
notice to the defending party, and proof of such
failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of

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evidence may be delegated to the clerk of court. (1a,

R18)
x x x x x x
Default is a procedure, which results from the failure of the defendant to file
an answer to the complaint within the period prescribed by the rules.
Thus, defending party is declared in DEFAULT if he fails to answer the
complaint within the time allowed therefor.
In Vlason Enterprise Corp. v. CA, GR Nos. 121662-64, July 6, 1999, the Court
sais that a declaration of default is issued as a punishment for unnecessary
delay in joining the issues.
Ground for defaultIt is the failure of the defendant to answer within the proper period,
not his failure to appear nor failure to present evidence, which, is the basis of
a declaration of default.
Effect of failure of defendant to attend the presentation of evidence
for the plaintiffThe failure of the defendant to attend the hearings for the presentation of
the evidence of the adverse party amounts not to a default, but to a waiver
of the defendants right to object to the evidence presented during
the hearing and to cross-examine the witnesses presented. However,
it would not amount to a waiver of the defendants right to present
evidence during the trial dates scheduled for the reception of
evidence for the defense. It is error for the court to issue an order not
denominated as an order of default but provides for the application of the
effects of default as when the defendant who has filed an answer is not
allowed to present evidence because of her absence during the presentation
of evidence by the plaintiff (Monzon Spouses Relova vs. Addio Properties, Inc.
GR 1712827, September 17, 2008)
Effect of failure of defendant to appear during the pre-trialIt is not a ground to declare the default in default although the court can
order the plaintiff to present evidence ex-parte and to render judgment on
the basis thereof. This is because, while the consequence may be similar,
such effect is not a form of punishment imposed upon a defendant for his/her
failure to join the issues. Thus, the old rule which authorized the court to
declare a defendant who fails to appear during the pre-trial as as in default
is no longer found in the present rules.
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Requisites before a party may be declared in default:

1. The Court must have acquired jurisdiction over the person of the
defendant thru a valid service of summons or voluntary appearance;
2. The defending party must have failed to file his answer within the
reglementary period or within the period fixed by the court;
3. there must be a motion to declare the defendant in default;
4. The defending party must be notified of the motion to declare him in
default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the defendant in
default; and
6. There must be proof of such failure to answer.
The required hearing is mandated by Sec. 4 of Rule 15, which states:
Sec. 4. Hearing of motion Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.
Take note that the word defending party applies not only to the original
defendant but even to the cross-defendant or defendant in a counterclaim.
Steps when the defendant fails to file an answer within the time
allowed:
1.) Plaintiff must file Motion to declare defendant in default;
2.) Declaration or Order of default; and
3.) Rendition of Judgment by Default or judgment based on the
complaint of the plaintiff UNLESS the court requires the claimant
to submit evidence (ex-parte presentation of plaintiffs evidence)
The court cannot motu proprio declare a defendant in default.
The court also has the discretion to extend the time for filing an
Answer or admit an Answer though filed out of timeThe trial court has the discretion not only to extend the time for filing an
answer but also to allow an answer to be filed after the reglementary period.
Where there is no declaration of default yet, answer should be admitted even
if filed out of time and no prejudice is caused to the plaintiff. Where answer
has been filed, there can be no declaration of default anymore. (Guillerma S.
Sablas vs. Esterlita S. Sablas and Rodulfo Sablas, GR No. 144568, July 3,
2007)
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When a defendant who filed an answer on time can still be declared

in defaultQ: If a defendant files an answer but did not furnish a copy of the answer to
the plaintiff, can the plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It
was not in accordance with the Rules of Court. (Gonzales vs. Francisco, 49
Phil. 47) So the defendant must furnish the plaintiff a copy of the answer
because in the case of
RAMIREZ vs. COURT OF APPEALS
187 SCRA 153
HELD: The failure to furnish a copy of the answer to the adverse
party in itself is sufficient or valid basis for defendants default.
Action of the court after the declaration/order of default
It can do either of the following:
1. To proceed to render judgment, or
2. To require the plaintiff to present his evidence ex parte.
Under Section 3, it is discretionary upon the court to require the claimant to
submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the
court. And such reception of evidence may be delegated to the clerk of court.
This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence;
delegation to clerk of court. The judge of the court
where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where the
parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a
member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the
admission of exhibits, which objections shall be
resolved by the court upon submission of his report and
the transcripts within ten (10) days from termination
of the hearing. (n)
The reception of evidence maybe delegated to the clerk of court but the
clerk of court must be a lawyer. That is the condition. So if he is not a
member of the bar, he is not authorized to conduct or hear an ex-parte
reception of evidence.
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Default judgment disfavoredIn Paramount Insurance Corp., v. A.C. Ordonez Corp., 561 SCRA 327, 334) the
Court held that the hornbook rule is that default judgments are generally
disfavored.
Effect of pendency of a Motion to Dismiss or for Bill of Particulars on
period to file an AnswerQ: May a defendant be declared in default while a motion to dismiss (Rule
16) or a motion for bill of particulars (Rule 12) remains pending and
undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of
particulars interrupts the running of the period to answer. It will run again
from the moment he receives the order denying his motion to dismiss or for
bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
But said motions must follow the requirements otherwise they will be
treated as mere scraps of paper and will not toll the running of the period to
answer.
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but
his motion to dismiss did not contain notice of time and place of
hearing and the motion was denied. Can he file an answer after
filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless
piece of paper with no legal effect.
Any motion that does not comply with Rule 16 should not be
accepted for filing and if filed, is not entitled to judicial cognizance
and does not affect any reglementary period. Not having complied
with the rules, the motion to dismiss filed by the defendant did not
stay the running of the reglementary period to file an answer.
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.
214 SCRA 295 [1992]
FACTS: Because the filing of the motion to dismiss is 15 days, the
defendant filed a motion to dismiss on the 8th day. It was denied. So
there is still 7 days to file an answer. On the 15th day, instead of
filing an answer, he filed a motion for reconsideration but such
motion was also denied. Can he still file an answer?
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HELD: NO MORE. The filing of the motion to dismiss interrupted

the period to file an answer. When you receive an order, you still
have the balance to file your answer. And you did not file an answer
instead, you file a motion for reconsideration. You took the risk. So
defendants motion for reconsideration, which merely reiterated his
ground in the motion to dismiss did not stay the running of the
period to file an answer.
Effect of failure to file a response and appear on the date set for
hearing under the Rule of Procedure for Small Claims CasesA motion to declare in default is a prohibited motion but the court can
render a judgment on the same day, as may be warranted by the facts.
(Sec. 12)
The same Section 12 further provides that if the defendant failed to file a
Response within the reglementary period but appears at the date set for
hearing, the court shall ascertain what defense he has to offer and
proceed to hear, mediate or adjudicate the case on the same day as if a
Response had been filed.
Effect of failure to file an Answer under the Rule on Summary
ProcedureThe defendant will not be declared in default, instead the court, motu
proprio, or on motion of plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is
prayed for (Sec. 6, II) A motion to declare defendant in default is likewise
prohibited under Sec. 19(h).
(a)

Effect of order of default. - A party in

default shall be entitled to notice of
subsequent proceedings but not to take part
in the trial. (2a, R18)

Effect of a declaration/order of default

1. The party declared in default loses his standing in court. The loss of
such standing prevents him from taking part in the trial (Sec. 3[a], Rule
9);
2. While the defendant can no longer take part in the trial, he is
nevertheless entitled to notices of subsequent proceedings (Sec. 3[a],
Rule 9)/. It is submitted that he may participate in the trial, not as a
party but as a witness (Cavile vs. Florendo GR No. 73039, Oct. 9, 1987)
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3. A declaration of default is not an admission of the truth or the validity

of the plaintiffs claims (Monarch Insurance vs. CA 333 SCRA 7 [2000];
Vlason Enterprises Corp. vs. CA 310 SCRA 26).
So if you are declared in default, you cannot take part in the trial. You lose
your standing in court, you cannot cross-examine the witness of the plaintiff
assuming there is a reception of evidence. You cannot object to his evidence.
You cannot even present your own evidence when you are in default.
Right of a party in default
He is entitled to notice of:
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
Note: A defendant declared in default cannot take part in the trial, but he
cannot be disqualified from testifying as a witness in favor of non-defaulting
defendants (Cavile vs. Florendo GR No. 73039, Oct. 9, 1987)
Default is not an admission of the allegations in the complaint.
There was an action for reconveyance alleging that with the use of fraud, there
was acquisition of title over a property. The defendants did not file an answer hence; an
order of default was issued. But the plaintiffs failed to prove the fraudulent act. It was
contented that the failure to answer is equivalent to an implied admission of the
allegations in the complaint. Is the contention correct? Why?
Being in default, does not imply a waiver of rights, except that of being
heard and of presenting evidence in his favor. It does not imply admission by the
defendant of the facts and causes of action of the plaintiff, because the codal
section requires the latter to adduce his evidence in support of his allegations as
an indispensable condition before final judgment could be given in his favor. Nor
could it be interpreted as an admission by the defendant that the plaintiffs
causes of action finds support in the law, or that the latter is entitled to the relief
prayed for. (Heirs of Pedro de Guzman v. Angelina Perona, et al., G.R. No. 152266,
July 2,2010, citing Luxuria Homes, Inc. v. CA, G.R. No. 125986, January 28, 1999,
302 SCRA 315; Delos Santos v. Dela Cruz, 37 SCRA 55 (1971)).
Plaintiff is not automatically entitled to the relief prayed for, once the
defendants are declared in default. Favorable relief can be granted only after the
court has ascertained that the relief is warranted by the evidence offered and the
facts proven by the presenting party. Otherwise, it would be meaningless to
require presentation of evidence if every time the other party is declared in
default, a decision would automatically be rendered in favor of the non-defaulting
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party and exactly according to the tenor of his prayer. This is not contemplated
by the Rules nor is it sanctioned by the due process clause. (Heirs of Pedro de
Guzman v. Angelina Perona, et al., G.R. No. 152266, July 2, 2010, citing Pascua v.
Florendo, 220 Phil. 588; Gajudo v. Traders Royal Bank, 485 SCRA 108 (2005)).
Effect of filing of an amended complaint upon defaulted defendant
If the defendant was declared in default upon an original complaint, the filing
of the amended complaint results in the withdrawal of the original complaint,
hence, the defendant is entitled to file an answer to the amended complaint
as to which he was not in default.
Judicial discretion to admit answer filed out of time
It is within the sound discretion of the trial court to permit the defendant
to file his answer and to be heard on the merits after the reglementary
period for filing the answer expires. The Rules of Court provides for discretion
on the part of the trial court not only to extend the time for filing an answer
but also to allow an answer to be filed after the reglementary period. It is not
correct to say that a trial court has no recourse but to declare a defending
party in default when he fails to file an answer within the required period. In
fact, the rule is that the answer should be admitted where it is filed
before a defending party is declared in default and no prejudice is
caused to the other party and that there is no showing that the
defendant intends to delay the case (Sablas vs. Sablas GR 144568, July
3, 2007) The hornbook rule is that default judgments are generally
disfavored (Paramount Insurance Corp., vs. A.C. Ordonez Corporation, GR No.
175109, August 6, 2008).
Current Judicial Trend on Default
The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default. (Ampeloquio
vs. CA 333 SCRA 465
The issuance of orders of default should be the exception rather than the
rule and to be allowed only in clear cases of obstinate refusal by the
defendant to comply with the orders of the trial court (Lorbes vs. CA
GR 139884 February 15, 2001) because suits should as much as
possible, be decided on the merits and not on technicalities
(Samartino vs. Raon GR 131482 July 3, 2002). Thus, in practice, an answer
under oath containing the defenses of the defendant, may under the rules on
liberal interpretation, be deemed as equivalent of an affidavit of merit.
The policy of the law is to have every litigants case tried on the merits as
much as possible. Hence, judgments by default are frowned upon. A case is
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best decided when all contending parties are able to ventilate their
respective claims, present their arguments and adduce evidence in support
thereof. (Sablas vs. Sablas GR 144568 July 3, 2007).
HOW TO LIFT ORDER OF DEFAULT
(b)

Relief from order of default. - A party

declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that his failure
to answer 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 of justice. (3a, R18)

Summary of Remedies of a defending party declared in default:

(a) Remedy after notice of order and before judgment The
defendant must file a motion under oath to set aside the order of
default and show that (a) the failure to answer was due to fraud,
accident, mistake or excusable negligence (FAMEN) and that (b) the
defendant has a meritorious defense, i.e., there must be an affidavit
of merit (Sec. 3[b], Rule 9); Villareal vs. CA 295 SCRA 511; Republic
vs. Sandiganbayan GR No. 148154, December 17, 2007; Republic vs.
Sandiganbayan, 540 SCRA 431)
Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion
must be verified and under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such terms and
conditions as the judge may impose in the interest of justice (Sec. 3b)
Meaning, even if you are a victim of FAME, if you have no meritorious
defense, the court will not lift the order of default.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any time after
notice thereof and before judgment.
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(b)Remedy after judgment and before judgment becomes final

and executor The defendant may file a motion for new trial
under Rule 37. He may also appeal from the judgment as being
contrary to the evidence or the law (Talsan Enterprises, Inc. vs. Baliwag
Transit, Inc. 310 SCRA 156; Lina vs. CA 135 SCRA 637)
(c) Remedy after the judgment becomes final and executory The
defendant may file a petition for relief from judgment under Rule
38 (Balangcad vs. Justices of the CA GR No. 83888, February 12, 1992;
Republic vs. Sandiganbayan [supra])
(d)Where the defendant has however, been wrongly or improvidently
declared in default, the court can be considered to have acted
with grave abuse of discretion amounting to lack of jurisdiction and
when the lack of jurisdiction is patent in the face of the judgment or
from the judicial records, he may avail of the special civil action of
certiorari under Rule 65 (Balangcad vs. Justices, supra)
Flow Chart of Remedies from Judgment by Default
Judgment by default
Motion for New Trial or Reconsideration at any time after service of judgment
by default and within 15 (30) days therefrom
Failure to file Motion for New Trial/Reconsideration or Denial of said
Motion
Perfect Appeal from said judgment by default within the balance of said 15
(30) day period
Failure to Appeal without defendant's fault
Petition for Relief from Judgment within 60 days from notice of judgment but
within 6 months from entry thereof
Annulment of Judgment under R 47
Implied Lifting of the Order of Default
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While it is true that there was no positive act on the part of the court to lift
the default order because there was no motion nor order to that effect, the
anti-graft courts act of granting respondent the opportunity to file a
responsive pleading meant the lifting of the default order on terms the
court deemed proper in the interest of justice. It was the operative act
lifting the default order and thereby reinstating the position of the
original defendant whom respondent is representing, founded on the courts
discretionary power to set aside orders of default.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading
asserting a claim states a common cause of action
against several defending parties, some of whom answer
and the others fail to do so, the court shall try the
case against all upon the answers thus filed and render
judgment upon the evidence presented. (4a, R18)
The principle here is that, the answer filed by the answering defendant
will automatically benefit the non-answering defendant.
Effect of partial defaultIn all instances where a common cause of action is alleged against
several defendants, some of whom answer and the others do not, the
latter or those in default acquire a vested right not only to own the
defenses interposed in the answer of their co-defendant or codefendants not in default but also to expect a result of the litigation
totally common with them in kind and in amount whether favorable
or unfavorable (Remigia Grageda, et al., vs. Hon. Nimfa Gomez and
Haudiny Grageda, GR No. 169536, Sept. 21, 2007).
The best example would be a promissory note signed by both B and C
and they bound themselves solidarily. Both of them were sued. B answered
while C did not, hence he is in default. Can there be a default judgment
against C? NO, there will still be a trial based on the answer of B. In effect, B
will defend not only himself but also C.
Q: Suppose during the trial, B proved that the obligation has been
extinguished, which is also applicable to C, and the complaint is dismissed,
what is the effect?
A: Both will win the case. So C will be benefited by the answer of his codefendant B. Hence, there is still a possibility that a defaulted defendant can
win based on our example.
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On the other hand it is absurd if the answer of B will not benefit the
defaulting defendant. EXAMPLE: Gary filed a case against B and C based on a
promissory note on a loan secured by both, and C defaulted. B answered
alleging payment. Suppose, B proved such defense, the effect is both B are
absolved. If you say that C should lose because the answer of B will not
benefit C, there will be two conflicting decisions: C is in default and thus,
should pay the loan; and there is no more loan as far as B is concerned. Do
you mean a loan is paid and at the same time unpaid? Thats absurd!
But take NOTE that to apply the principle, there must be a common
cause of action. If there is no common cause of action, while there may be
a trial, the answer of B is only for him. After the trial, B might be absolved
from liability but the defaulting defendant C will be held liable because Bs
answer does not cover C. That is when there is no common cause of action.
In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])
reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: B and C were (solidary debtors) sued by Gary for a loan
evidenced by a promissory note. B filed an answer but C defaulted.
The case was tried based on Bs answer. Gary moved to drop B from
the case but retained C, the defaulted defendant so that Gary can
secure an immediate judgment.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more
defendants, if you drop the case against one, you drop the case
against all. Selection is not allowed. To drop B means that the cause
of action against him is weak. Why should one drop somebody if a
case against such person is meritorious? If such is the fact,
necessarily the cause of action against the other is also weak the
fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]
239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped
by a Hino Truck causing injury to Imson and totally wreaking his car.
So he filed an action for damages against several defendants. He
impleaded all of them the driver, the bus company owner and the
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insurance company. The insurance company filed an answer but the

owner and the driver did not. So both the owner and the driver were
declared in default.
Subsequently, lmson and the insurance company entered into a
compromise agreement wherein the latter paid him P70,000 which
was its total liability under the insurance contract but constituted
only a part of the total claim.
So when the case (between Imson and the insurance company)
was eventually dismissed because of the compromise agreement,
the bus company owner also moved to dismiss the case against him
and the driver, arguing that since they are all indispensable parties
under a common cause of action, the dismissal of the case against
the insurance company should likewise result to the dismissal of the
case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of
them?
HELD: The owner is wrong. There is NO common cause of action.
The cause of action against the driver is based on quasi-delict under
Article 2178 of the Civil Code. The liability against the owner is also
based on quasi-delict but on another provision of the Civil Code
Article 2180 (the liability of the employer for the delict or wrong of
the employee) So, the liability of the owner and the driver is based
on quasi -delict but under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not
based on quasi-delict but based on contract because he seeks to
recover liability from the insurance company based on the
third-party liability clause of the insurance contract with the
company.
So, there is no common cause of action among them.
ISSUE #2: Is the insurance company an indispensable party?
Because if it is so and he is removed from the case, the case cannot
proceed without him.
HELD: NO. The insurance company is not an indispensable party.
It is true that all of Imsons claims in the civil case is premised
on the wrong committed by defendant truck driver. Concededly, the
truck driver is an indispensable party to the suit. The other
defendants, however, cannot be categorized as indispensable
parties. They are merely necessary parties to the case. It is easy to
see that if any of them had been impleaded as defendant (meaning,
the insurance company or the owner was impleaded), the case
would still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue the insurance company, the
omission would not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not lose
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its competency to act completely and validly on the damage suit.

The insurer, clearly, is not an indispensable party. It is a necessary
party.
(d) Extent of relief to be awarded. - A judgment
rendered against a party in default shall not exceed
the amount or be different in kind from that prayed for
nor award unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount prayed for in
the complaint;
2.) The default judgment should not be different in kind from that
prayed for in the complaint;
3.) The default judgment should not award unliquidated damages.
Leticia Diona, represented by her Attorney-in-fact, Marcelina Diona v. Romeo
Balangue, Sonny Balangue, Reynaldo Balangue, and Esteban Balangue, Jr.; G.R.
No. 173559. January 7, 2013
Pleadings; relief. It is settled that courts cannot grant a relief not prayed for in the
pleadings or in excess of what is being sought by the party. They cannot also grant a
relief without first ascertaining the evidence presented in court. In Development Bank of
the Philippines v. Tecson, this Court expounded that:
Due process considerations justify this requirement, it is improper to enter an order
which exceeds the scope of relief sought by the pleadings, absent notice, which affords
the opposing party an opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the complaint must provide
the measure of recovery is to prevent surprise to the defendant.
Notably, the Rules is even more strict in safeguarding the right to due process
of a defendant who was declared in default than of a defendant who participated in
trial. For instance, amendment to conform to the evidence presented during trial is
allowed the parties under the Rules. But the same is not feasible when the
defendant is declared in default because Section 3(d), Rule 9 of the Rules of
Court comes into play and limits the relief that may be granted by the courts to
what has been prayed for in the complaint. xxx The raison detre in limiting the extent
of relief that may be granted is that it cannot be presumed that the defendant would not
file an Answer and allow himself to be declared in default had he known that the plaintiff
will be accorded a relief greater than or different in kind from that sought in the
Complaint. No doubt, the reason behind Section 3(d), Rule 9 of the Rules of Court is to
safeguard defendants right to due process against unforeseen and arbitrarily issued
judgment. This, to the mind of the Court, is akin to the very essence of due process. It
embodies the sporting idea of fair play and forbids the grant of relief on matters where
the defendant was not given the opportunity to be heard thereon.
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MANGELIN vs. COURT OF APPEALS

215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of
evidence by virtue of default judgment AND ex-parte presentation
of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER,
paragraph [d] applies the judgment cannot exceed the amount or
be different in kind from that prayed for in the complaint.
BUT if theres an ex-parte reception of evidence against a
defendant who filed an answer but FAILED TO APPEAR during the
trial, the limitations in paragraph [d] does not apply. Therefore in
this case, a greater amount than that prayed for in the complaint, or
a different nature of relief may be awarded so long as the same are
proved.
It may be pointed out that there is a difference between a
judgment against a defendant based on evidence presented exparte pursuant to a default order and one based on evidence
presented ex-parte and against a defendant who had filed an
answer but who failed to appear at the hearing. In the former,
Section 3 [d] of Rule 9 provides that the judgment against the
defendant should not exceed the amount or be different in kind
from that prayed for. In the latter, however, the award may exceed
the amount or be different in kind from that prayed for.
This is because when there is an ex parte presentation of evidence due to
failure to appear in trial, ones standing in court is not lost. HE can still
present evidence later to refute the plaintiffs evidence. He simply waived
the rights attached on particular hearing but not to all subsequent trials. In
judgment by default, he actually loses his standing in court.
Q: What is the difference between UNLIQUIDATED damages and
LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to evidence
before it can properly be awarded such as the presentation of receipts in
terms of actual damages, or taking of testimonies to determine mental
anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or
evidence to establish the same are not required. An example is an obligation
with a penal clause like an agreement to construct a house and upon failure
to finish the same within a stipulated period, the contractor is liable for
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P10,000 for every day of delay. The amount is already fixed based on the
contract price and the penalty provided and such other circumstances as
stipulated.
So, in an action for unliquidated damages, let the defendant be declared in
default anyway the court can never award those damages. Because if I will
answer, damages can be awarded. In other words, I will win the case simply
because there is no way for the court to award the damages. And most
damages are usually those unliquidated damages.
(e)
Where no defaults allowed. - If the defending
party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney
to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated. (6a, R18)
Where no defaults are allowed:
1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special Civil Actions of certiorari, prohibition and mandamus where
comment instead of an answer is required to be filed; and
5. Summary Procedure.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or
declaration of absolute nullity of marriage, the court
shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care
that the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph,
no judgment shall be based upon a stipulation of facts
or confession of judgment.
Family Code, 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
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prevent collusion between the parties and to take care

that the evidence is not fabricated or suppressed.
Judgment by default for refusal to comply with the modes of
discovery
The rule is that a default order and consequently a
default judgment is triggered by the failure of the
defending party to file the required answer (Sec. 3
Rule 9).
By way of exception, a judgment by default may be
rendered in the following cases despite an answer
having been filed:
(a)
(b)

If a party refuses to obey an order requiring

him to comply with the various modes of
discovery (Sec. 3[c] Rule 29; or
If a party or officer or managing agent of a
party willfully fails to appear before the
officer who is to take deposition or a party
fails to serve answers to interrogatories.
(Sec. 5 Rule 29)

Reviewer
Effect of failure to plead (Rule 9)
1. Failure to plead defenses and objections (implied admissions)
Defenses not pleaded in a motion to dismiss or in the answer are deemed WAIVED.
Exceptions:
These defenses may be raised at any stage of the proceedings even for the first time on appeal::
1. Lack of jurisdiction over the subject matter (Note: This may, however, be barred by
laches - Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968)
2. Litis pendentia
3. Res judicata
4. Prescription (LLRP) (Rule 9, Sec. 1) Relate to omnibus motion rule (Rule 15, Sec. 8)
***Laches need not be specifically pleaded and may be considered by the court on its own
initiative in determining the rights of the parties. (Heirs of Valientes v. Ramas, G.R. No. 157852;
December 15, 2010) TDC
2. Failure to plead a compulsory counterclaim and cross-claim
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred.
6. Default (Rule 9, Sec. 3)
a. When a declaration of default is proper
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What are the grounds for the declaration of default?

a) Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This includes
failure to answer a complaint, permissive counterclaim, cross-claim, third-party complaint, etc.
b) Wilful failure to appear before an officer to make a deposition, after being served with a
proper notice, or failure to serve answers after proper service of interrogatories (Rule 29, Sec. 3)
c) Failure to appear at pre-trial (Rule 18, Sec. 5)
NOTE:
1. A declaration of default cannot be made by the court motu proprio; there must be a motion to
that effect (The Philippine British Co., Inc. vs. De Los Angeles, 63 SCRA 50 [1975]).
2. If no motion to declare defendant in default is filed, the complaint should be dismissed for
failure to prosecute.
3. A defendants answer should be admitted where it had been filed before it
was declared in default, and no prejudice is caused to plaintiff (Indiana Aerospace University
vs. CHED. 356 SCRA 367 [2001])
b. Effect of an order of default
a. A party in default LOSES HIS STANDING in court. He cannot appear therein, adduce
evidence and be heard nor take part in trial. He cannot file a motion to dismiss without first filing
a motion to set aside the order of default. He loses his right to present evidence, control the
proceedings and examine the witnesses or object to plaintiffs evidence.
b. A motion to declare the defending party in default should be served upon him. A party in
default, however, shall be entitled to NOTICE of subsequent proceedings but not to take part in
the trial.
c. Being declared in default does not constitute a waiver of all rights. What is waived is only the
RIGHT TO BE HEARD and to PRESENT EVIDENCE during trial while default prevails.
A party in default is still entitled to notice of final judgments and orders and proceedings taken
subsequent thereto. He may be cited and testify as a witness.
d. A party VALIDLY declared in default irreparably loses the right to participate in the trial. A
defendant IMPROVIDENTLY declared in default may retain and exercise such right to
participate in the trial after the order of default and the subsequent judgment by default are
annulled and the case remanded to the court of origin. The former can only appeal. The latter
may file a petition for certiorari (Indiana Aerospace University vs. CHED, supra).
c. Relief from an order of default
Summary of the Remedies in Default
a. From notice of the order of default but BEFORE JUDGMENT
(1) motion to set aside order of default under Rule 9, Sec. 3(b)
(2) in a proper case, petition for certiorari under Rule 65.

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b. AFTER JUDGMENT BUT BEFORE FINALITY

(1) motion for reconsideration under Rule 37, Section 1
(2) motion for new trial under Rule 37, Section 1
(3) appeal under Rule 41, Section 1
c. AFTER FINALITY OF JUDGMENT
(1) petition for certiorari under Rule 65
(2) petition for relief from judgment under Rule 38
(3) petition for annulment of judgment under Rule 47.
d. Effect of a partial default
Rule 9, Section 3(c). Effect of partial default . When a pleading asserting a claim states a
common cause of action against several defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon the answers thus filed and render
judgment upon the evidence presented.
e. Extent of relief
Two (2) kinds of Proceedings after Declaration of Default and the Extent of Relief that may be
Granted
(a) Without hearing
The Court may immediately render judgment granting the claimant such relief as his pleading
may warrant. Such relief however shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages. (Rule 9, Sec. 3)
(b) With Hearing
The Court may, in its discretion, allow or require the claimant to submit evidence. Such reception
of evidence may be delegated to the Clerk of Court. After the reception of claimants
evidence, the court may render judgment granting the reliefs prayed for as established by the
evidence. It may also award unliquidated damages without exceeding the
amounts prayed for. (Rule 9, Sec. 3)
f. Actions where default is not allowed
a. Action for
declaration of nullity of marriage;
action for annulment of marriage;
action for
legal separation (Rule 9, Sec. 3 (e))
NOTE: If the defending party fails to answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion exists between the parties, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not fabricated.
b. Actions governed by the Rule on Summary Procedure and Rule of Procedure for Small Claims
Cases, where a motion to declare defendant in default is not allowed.
c. Special civil actions of certiorari , prohibition and mandamus where comment instead of an
answer is required to be filed.
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