Provisional Remedies Herrera

RULE 57
PROVISIONAL REMEDIES
1. N a t u r e of P r o v i s i o n a l R e m e d i e s
Provisional remedies are:
a. Those to which parties litigant m a y resort for the preser-

vation or protection of their rights or interest, and for no other
purpose during the pendency of the action.
b. T h e y are applied to a pending litigation, for the purpose

of securing the judgment or preserving the status quo, and in some
cases after judgment, for the purpose of preserving or disposing of
1
the subject matter.
2. T h e P r o v i s i o n a l R e m e d i e s u n d e r the p r e s e n t R u l e s
are:
a) Attachment (Rule 57)

b) Preliminary Injunction (Rule 58)
c) Receivers (Rule 59)
d) Replevin or delivery of private property (Rule 60)
e) Alimony Pendente Lite (Rule 61)
3. Equity Jurisdiction to O r d e r Deposit D u r i n g
Pendency of Action
To prevent unjust enrichment and to ensure restitution in the
event of rescission the trial court in the exercise of its equity juris-
diction may validly order the deposit of the 10 million down-pay-
ment during the pendency of the action despite the fact that deposit
2
is not among the provisional remedies provided for in the Rules.
1
Calo v. Roldan, 76 Phil. 445.
2
Reye8 v. Lim, G.R. N o . 1324241, August 11, 2003.
I
Sec. 1 REMEDIAL LAW Rule 57
V O L . III
The principle that no person may unjustly enrich himself at

the expense of another is embodied in Article 22 of the Civil Code.
This principle applies not only to substantive but also procedural
remedies. One condition for invoking this principle is that the ag-
grieved party has no other action based on contract, quasi-contract,
crime, quasi-delict or any other provision of law. T h e Court can
extend this condition to the hiatus in the Rules of Court where the
aggrieved party during the pendency of the case has no other re-
3
course based on the provisional remedies of the Rules of Court.
A court may not permit a seller to retain, pendente lite, money

paid by a buyer if the seller seeks himself the rescission of the sale
4
because he has subsequently sold the property to another buyer.
PRELIMINARY ATTACHMENT
S E C T I O N 1. Grounds upon which attachment may issue.

At the c o m m e n c e m e n t of the action or at a n y time b e f o r e
entry o f j u d g m e n t , a plaintiff o r a n y p r o p e r p a r t y m a y h a v e
the p r o p e r t y o f the a d v e r s e p a r t y a t t a c h e d a s s e c u r i t y f o r
the satisfaction o f a n y j u d g m e n t that m a y b e r e c o v e r e d i n
the f o l l o w i n g cases:
( a ) I n a n action f o r the r e c o v e r y o f a specified a m o u n t

of money or damages, other than m o r a l a n d exemplary, on a
cause o f action a r i s i n g f r o m l a w , contract, q u a s i - c o n t r a c t ,
delict o r quasi-delict a g a i n s t a p a r t y w h o i s a b o u t t o d e p a r t
f r o m the P h i l i p p i n e s w i t h intent t o d e f r a u d his c r e d i t o r s ;
( b ) I n a n action f o r m o n e y o r p r o p e r t y e m b e z z l e d o r
f r a u d u l e n t l y m i s a p p l i e d o r c o n v e r t e d t o his o w n u s e b y a
p u b l i c officer, or an officer of a c o r p o r a t i o n , or an attorney,
factor, b r o k e r , agent, o r clerk, i n the c o u r s e o f his e m p l o y -
ment a s such, o r b y a n y o t h e r p e r s o n i n a f i d u c i a r y capacity,
or for a w i l l f u l v i o l a t i o n of duty;
( c ) I n a n action t o r e c o v e r the p o s s e s s i o n o f p r o p e r t y
unjustly o r f r a u d u l e n t l y t a k e n , d e t a i n e d o r c o n v e r t e d , w h e n
the property, o r a n y p a r t thereof, h a s b e e n c o n c e a l e d , r e -
3
Reyes v. Lim, G.R. N o . 1324241, supra.
4
Reyes v. Lim, supra.
2
Rule 57 PROVISIONAL REMEDIES Sec. 1
m o v e d , o r d i s p o s e d o f t o p r e v e n t its b e i n g f o u n d o r t a k e n b y
the a p p l i c a n t o r a n a u t h o r i z e d p e r s o n ;
( d ) I n a n action a g a i n s t a p a r t y w h o h a s b e e n guilty o f
a fraud in c o n t r a c t i n g the d e b t or i n c u r r i n g the obligation
u p o n w h i c h the action i s b r o u g h t , o r i n the p e r f o r m a n c e
thereof;
( e ) I n a n action a g a i n s t a p a r t y w h o h a s r e m o v e d o r
d i s p o s e d of his p r o p e r t y , or is a b o u t to do so, w i t h intent to
d e f r a u d his creditors; o r
(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

a n d i s not f o u n d i n the P h i l i p p i n e s , o r o n w h o m s u m m o n s
may b e served b y publication, ( l a )
COMMENT:
1. S o u r c e of R u l e
The present Rule on attachment was taken from Section 1 of the

former Rule.
2. T h e c h a n g e s consist i n
a. changing the time when the filing of an application for a

w r i t of preliminary attachment may be filed at the commencement
of the action or at any time "thereafter" to "or before entry of judg-
ment";
b. clarifying the ground in subsection ( a ) to an action for the
recovery of a "specified amount" of money or damages, "other than
moral or exemplary" and expanding the scope by not confining the
cause of action to those arising only from contract, express or im-
plied but also those arising from "law, contract, delict, or quasi-
delict." This rule confirms decisions of the Supreme Court that a
writ of preliminary attachment may not issue in an action for dam-
1
ages where the claims are unliquidated;
c. Clarifying and consolidating in subsection (c) the grounds
mentioned in former subsections (c) and the second ground in sub-
1
Salas v. Adil, 90 S C R A 121; Peregrino v. Panis, 133 S C R A 72; Mialhe v. de
Lenquesaing, 142 S C R A 694.
3
Sec. 1 REMEDIALLAW Rule 57
V O L . III
sections ( d ) to "an action to recover the possession of property un-

justly or fraudulently taken, detained or converted, when the prop-
erty, or any part thereof, has been concealed, removed, or disposed of
to prevent its being found or taken by the applicant or an authorized
person"; and deleting the limitation "personal" thereby including
therein an action to recover "real" property.
d. lb fraud in contracting the debt or incurring the obliga-
tion, the present rule added fraud in the performance of the obliga-
tion.
e. Preliminary attachment may be granted against a de-
fendant who does not reside and is not found in the Philippines
under Sec. 15 of Rule 14. It may also be granted against a defendant
whose identity or whereabouts are unknown and cannot be ascer-
tained by diligent inquiry on w h o m summons m a y be served by
publication under Sec. 14, Rule 14. T h e attachment converts an
action in personam into an action quasi in rem and validates sum-
2
mons by publication.
M e r e non-residence is not enough, the rule added "and is not

found in the Philippines."
The rule does not include foreign corporations duly licensed to

3
do business in the Philippines but refers only to natural persons.
In other words a foreign corporation licitly doing business in

the Philippines which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Phil-
ippines. Otherwise stated, a preliminary attachment may not be
applied for and granted solely on the asserted fact that the defend-
ant is a foreign corporation authorized to do business in the Philip-
pines and is consequently and necessarily a party who resides out
4
of the Philippines. Such corporations are thus considered as resid-
5
ing in the Country.
2
Citizens Surety and Ins. Co. v. Melencio-Herrera, 38 S C R A 369; Consolidated
Plywood Industries, Inc. v. Breve, 163 S C R A 589.
3
Claude Neon Lights v. Philippine Advertising Corp., 57 Phil. 607.
4
State Investment House, Inc. v. Citibank N . A . , 203 S C R A 9, cited in Northwest
Airlines v. Court of Appeals, 241 S C R A 192 (1995).
5
Vide Northwest Airlines v. Court of Appeals, supra.
4
3. Notes and Cases

a. Definition
A w r i t of preliminary attachment is a provisional remedy is-

sued upon order of the court where an action is pending to be levied
upon the property or properties of the defendant therein, the same
to be held thereafter by the Sheriff as security for the satisfaction of
whatever judgment might be secured in said action by the attaching
6
creditor against the defendant.
7
In Davao Light and Power Co. v. Court of Appeals, Justice
N a r v a s a paraphrasing Section 1, Rule 57 of the Rules of Court de-
fined a preliminary attachment as the provisional remedy in virtue
of which a plaintiff or other proper party may, at the commencement
of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the
satisfaction of the judgment that m a y be recovered. It is a remedy
which is purely statutory in respect of which the law requires a
strict construction of the provisions granting it.
Another definition given in 4 Words and Phrases 727 (1940), is

that it is a provisional remedy, auxiliary or incidental to the main
action whereby the debtor's property capable of being taken under
levy and execution is placed under custody of the law pending deter-
mination of the cause to secure the payment of any judgment that
8
may be recovered therein.
b. Concept: P U R P O S E
"Attachment is a juridical institution which has for its purpose
to secure the outcome of the trial, that is, the satisfaction of the
pecuniary obligation really contracted by a person or believed to
have been contracted by him, either by virtue of a civil obligation
emanating from contract or from law, or by virtue of some crime or
misdemeanor that he might have committed, and the writ issued,
granted it, is executed by attaching and safely keeping all the mov-
6
Eleazar v. A d l a w a n v. Hon. Judge Valeriano P. Tomol, G.R. No. 63225, April 3,
1990; Reiterate M. Cuartero v. Court of Appeals, 212 SCRA200 (1992), cited in Chemphil
C E I C v. C A , Dec. 12,1995, G.R. Nos. 112438-39.
7
204 S C R A 343(1991).
*Supra.
5
V O L . III
able property of the defendant, or so much thereof as may be suffi-

9
cient to satisfy the plaintiff's demands x x x."
The chief purpose of the remedy of attachment is to secure a
contingent lien on defendant's property until plaintiff can, by appro-
priate proceedings, obtain a judgment and have such property ap-
plied to its satisfaction, or to make some provision for unsecured
debts in cases where the means of satisfaction thereof are liable to
be removed beyond the jurisdiction, or improperly disposed of or
10
concealed, or otherwise placed beyond the reach of creditors.
c. W h e r e Indebtedness A l r e a d y Secured
The grounds upon which attachment m a y issue are set forth in
Section 1, Rule 57 of the Rules of Court. But quite apart from the
grounds stated therein, it is further provided in Section 3 of Rule 57
that "an order of attachment shall be granted only when it is made
to appear by the affidavit of the applicant or some other person who
personally knows the facts, that x x x there is no other sufficient
security for the claim sought to be enforced by the action."
The reason for the rule prohibiting attachment where indebt-

edness was already secured is to prevent the secured creditors from
attaching additional property and thus tying up more of the debtor's
property than was necessary to secure the indebtedness. Thus, to
sustain an order of attachment, "it is incumbent, upon plaintiff to
establish either of these two facts, to wit: ( a ) that the obligation had
not been secured originally, or ( b ) that, if secured at its beginning,
11
the security later became valueless."
d. N a t u r e a n d Scope: A t t a c h m e n t P u r e l y S t a t u t o r y
Attachment is not a distinct proceeding in the nature of an

action in rem but is a proceeding to an action of law, designed to
secure the payment of any judgment the plaintiff m a y obtain.
Attachment as a provisional remedy is purely a statutory one.

It does not exist unless expressly granted by the statute. It is there-
G u z m a n v. Catolica, et al., Phil. 257; Gruenberg v. Court of Appeals, 138 S C R A

471, cited in C E I C v. C A , supra.
10
I d . , citing Salgado v. C A , 128 S C R A 395 (Italics ours); Chemphil Export &
Import Corp. v. C A , 251 S C R A 289.
u
S a l g a d o v. Court of Appeals, supra.
6
fore not available except in those cases where the statute expressly
12
permits. For this purpose, the party seeking an attachment must
show that a sufficient cause of action exists and that the amount due
him is as much as the sum for which the order of attachment is
13
sought.
e. Strict C o m p l i a n c e w i t h R u l e
T h e rule on the issuance of a w r i t of attachment must be con-

strued strictly in favor of the defendant. If all the requisites for the
issuance of the w r i t are not present, the court which issues it acts in
14
excess of jurisdiction. It should be issued only on concrete and
15
specific grounds.
f. Writ m a y be Q u a s h e d on Certiorari If Not Based on

Statutory G r o u n d s
If a w r i t is issued for which there is no statutory authority, the

court is acting irregularly and in excess of jurisdiction, hence the
16
w r i t may be quashed by certiorari.
g. P a r t y Entitled to R e m e d y
1. Plaintiff or "any proper party" includes defendant in a

counterclaim.
2. Plaintiff cannot attach property claimed as his and in his

17
actual possession.
3. T h e w r i t m a y not issue in an action instituted by an
administratrix of an estate to protect her personal interest as credi-
18
tor of the estate.
h. G r o u n d s for Issuance
( a ) In an action f o r the r e c o v e r y of a specified a m o u n t
of m o n e y or d a m a g e s , o t h e r t h a n m o r a l a n d exemplary, on a
1 2
U . S . v. Namit, 38 Phil. 926.
"General v. De Venecia, 78 Phil. 780.
14
Gruenberg v. C A , supra.
16
D y v. Enage, 70 S C R A 96.
16
L e u n g v. O'Brien, 38 Phil. 182; Salas v. Adil, 90 S C R A 121; Jardine Manila
Finance, Inc. v. Court of Appeals, 171 S C R A 636.
17
Calo, et al. v. Roldan, et al., 76 Phil. 445.
18
Gruenberg v. C A , supra.
7
V O L . III
cause of action a r i s i n g from l a w , contract, quasi-contract,

delict or quasi-delict a g a i n s t a p a r t y w h o is a b o u t to d e p a r t
from the P h i l i p p i n e s w i t h intent to d e f r a u d his creditors;
1. It must be shown that the defendant is about to
depart from the Phils, with intent to defraud his creditor or
that he is a non-resident alien in order that attachment of his
19
property is justified.
2. Attachment may not issue if the allegation in the
20
affidavit is insufficient.
3. Attachment is not available where demand is not
21
due and payable.
4. Attachment may not issue for moral and exemplary
damages or for an unspecified amount of damages. (See Note 2
[b])
( b ) I n a n action f o r m o n e y o r p r o p e r t y e m b e z z l e d o r
f r a u d u l e n t l y m i s a p p l i e d o r c o n v e r t e d t o his o w n u s e b y a
p u b l i c officer, or an officer of a c o r p o r a t i o n , or an attorney,
factor, b r o k e r , agent, or clerk, in the c o u r s e of his employ-
ment as such, or by a n y o t h e r p e r s o n in a fiduciary capacity,
or f o r a w i l l f u l violation of duty;
If one of two persons who owned a sweepstakes ticket, that won

a prize appropriated the entire prize to himself, a w r i t of prelimi-
nary attachment is proper in an action against him to recover the
22
share of the co-owner.
The act of a corporate officer in taking money from the corpora-

tion in his capacity as President, Treasurer and General M a n a g e r
for personal use without being duly authorized constitutes an ir-
regularity that, while it does not amount to a criminal fraud, is
undoubtedly a fraud of a civil character an abuse of confidence to
23
the damage of the corporation and its stockholders.
1 9
K . O . Glass Const. Co. v. Valenzuela, 116 S C R A 563.
20
Ibid.
21
General v. De Venecia, supra.
22
T a n v. Zandueta, 61 Phil. 526.
"Walter E. Olsen and Co. v. Olsen, 48 Phil. 238.
8
( c ) I n a n action t o r e c o v e r the possession o f p r o p e r t y

unjustly o r f r a u d u l e n t l y t a k e n , d e t a i n e d o r converted, w h e n
the p r o p e r t y , o r a n y p a r t thereof, h a s b e e n concealed, re-
m o v e d , o r d i s p o s e d o f t o p r e v e n t its b e i n g f o u n d o r t a k e n b y
the a p p l i c a n t o r a n a u t h o r i z e d p e r s o n ;
As distinguished from replevin the personal property in this

case belongs to the defendant and the plaintiff seeks to attach it to
secure the satisfaction of any judgment that he may recover from
24
the defendant.
In replevin, the property being recovered belongs to the plain-

tiff, or plaintiff is entitled thereto, by virtue of a chattel mortgage in
his favor.
In an action to recover possession of personal property a writ of

replevin m a y issue under Rule 60. If the property has been con-
cealed, removed or disposed of to prevent its being found, a writ of
preliminary attachment under the present Rule may be issued. A t -
tachment is issued as security for the satisfaction of a judgment
under Section 9, Rule 60, where the court is called upon to deter-
mine who has the right of possession to and the value of the property
and shall render judgment in the alternative for the delivery thereof
to the party entitled to the same, or for its value in case delivery
cannot be made, and also for such damages as either party may
prove, with costs.
Concealment there should be a physical hiding or secreting
25
of property so that it cannot be seized to satisfy creditor's claims.
Removal is actual physical removal by the debtor.
( d ) I n a n action a g a i n s t a p a r t y w h o h a s b e e n guilty o f
a fraud in c o n t r a c t i n g the d e b t or i n c u r r i n g the obligation
u p o n w h i c h the action i s b r o u g h t , o r i n the p e r f o r m a n c e
thereof;
26
3. Insolvency is not a ground. Formerly neither is fraud in
27
the performance of an obligation. It is now a ground for the issu-
ance of the writ.
24
Santos v. Bernabe, 54 Phil. 19; Calo v. Roldan, supra.
25
3 MORAN, 1980 ed., p. 7.
26
Aboitiz v. Cotabato Bus Co., 105 S C R A 88.
27
State Investment House, Inc. v. Court of Appeals, 163 S C R A 799.
9
V O L . III
Failure to disclose non-delivery of vehicle to financing com-

28
pany who funded sale constitutes fraud.
(e) I n a n action a g a i n s t a p a r t y w h o h a s r e m o v e d o r
disposed of his property, or is a b o u t to do so, w i t h intent to
d e f r a u d his creditors; or
Actual transfer is not necessary as mere design to dispose of

29
property and intent to carry it out is sufficient.
1. The acts of a bus company in having buses repaired and

substitution by the same number of buses does not constitute re-
30
moval.
2. Intent to defraud may be and usually is inferred from the

facts and circumstances of the case. It can rarely be proven by direct
evidence. It may be gleaned from the statements and conduct of the
debtor. The principle may be applied that every person is presumed
31
to intend the natural consequences of his act.
3. M e r e removal or disposal of property, by itself, is not a

ground for the issuance of attachment, notwithstanding the absence
of any security for the satisfaction of any judgment against defend-
ant.
4. It is the removal or disposal with intent to defraud de-

fendant's creditors that justifies the issuance of a w r i t of prelimi-
32
nary attachment.
Thus, to justify the issuance of a w r i t of preliminary attach-

ment based on removal, concealment and disposition of defendant's
property with intent to defraud his creditors, the factual basis on
defendant's intent to defraud must be clearly alleged in the affidavit
in support of the prayer for the w r i t of attachment if not so specifi-
33
cally alleged in the verified complaint.
^Filinvest v. Relova, 117 S C R A 420, 432.

29
3 MORAN, p. 9, 1963 Ed.
30
Aboitiz v. Cotabato Bus Co., supra.
31
People's Bank and Trust Company v. Syvel's Incorporated, 164 S C R A 247.
32
Carpio v. Macadaeg, 9 S C R A 552.
33
A d l a w a n v. Torres, 233 S C R A 645 (1994).
10
A bare allegation that an encumbrance of a property is in fraud

of the creditor does not suffice. Factual bases for such conclusion
34
must be clearly a v e r r e d .
T h e execution of a mortgage in favor of another creditor is not

conceived by the Rules as one of the means of fraudulently disposing
of one's property. By mortgaging a piece of property, a debtor merely
35
subjects it to a lien but ownership thereto is not parted w i t h .
T h e inability to pay one's obligation is not synonymous with

36
fraudulent intent not to honor the obligations.
(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

a n d i s not f o u n d i n the P h i l i p p i n e s , o r o n w h o m s u m m o n s
may be served by publication, ( l a )
Non-resident defendant or on whom summons may be served by

publication This is applicable only where plaintiff's claim is liqui-
37
dated but not to unliquidated damages.
T h e rule does not include foreign corporations duly licensed to

38
do business in the Philippines but refers only to natural persons.
In other words a foreign corporation licitly doing business in

the Philippines which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Phil-
ippines. Otherwise stated, a preliminary attachment may not be
applied for and granted solely on the asserted fact that the defend-
ant is a foreign corporation authorized to do business in the Philip-
pines and is consequently and necessarily a party who resides out
39
of the Philippines. Such corporations are thus considered as resid-
40
ing in the Country.
^Supra.
36
Supra.
^Supra.
37
Mialhe v. De Lencquesaing, 142 S C R A 694.
38
C l a u d e Neon Lights v. Philippine Advertising Corp., 57 Phil. 607.
39
State Investment House, Inc. v. Citibank, N . A . , 203 S C R A 9, cited in North-
west Airlines v. Court of Appeals, Feb. 9, 1995, 241 S C R A 192.
"Northwest Airlines v. C A , 241 S C R A 192.
11
V O L . III
4. Attachment to A c q u i r e Jurisdiction O v e r the Res

Attachment is intended to confer jurisdiction by the court over
the res. When real property of a non-resident defendant located in
the Philippines is attached, to answer for the claim of plaintiff, the
Court acquires jurisdiction over the res and in that event, the juris-
41
diction over the person of said defendant is not essential.
S E C . 2. Issuance and contents of order. An o r d e r of

attachment m a y be i s s u e d either ex parte or u p o n motion
w i t h notice a n d h e a r i n g b y the c o u r t i n w h i c h the action i s
pending, o r b y the C o u r t o f A p p e a l s o r the S u p r e m e C o u r t ,
a n d must r e q u i r e the sheriff of the c o u r t to attach so m u c h of
the p r o p e r t y i n the P h i l i p p i n e s o f the p a r t y a g a i n s t w h o m i t
is issued, not e x e m p t f r o m execution, as m a y be sufficient to
satisfy the applicant's d e m a n d , u n l e s s s u c h p a r t y m a k e s de-
posit o r gives a b o n d a s h e r e i n a f t e r p r o v i d e d i n a n a m o u n t
e q u a l t o that fixed i n the o r d e r , w h i c h m a y b e the a m o u n t
sufficient to satisfy the applicant's d e m a n d or the v a l u e of
the p r o p e r t y t o b e a t t a c h e d a s stated b y the a p p l i c a n t , exclu-
sive o f costs. S e v e r a l w r i t s m a y b e i s s u e d a t the s a m e time t o
the sheriffs of the courts of different j u d i c i a l r e g i o n s . ( 2 a )
COMMENT:
Taken from the former Section 2.
2. C h a n g e s in the R u l e
a. The Rule on P r i o r or Contemporaneous Jurisdic-

tion
The present Rule clarifies the conflicting opinions on whether

or not an order for the issuance of a w r i t of preliminary attachment
may be issued ex parte or only after hearing, by granting the court
discretion to issue the order either ex parte or upon motion with
notice and hearing.
The conflict came about when the Supreme Court held that the
writ may be issued only after the court has acquired jurisdiction
41
M a b a n a g v. Gallemore, 81 Phil. 254.
12
over the subject matter or over the person of the defendant in the
1
principal action.
T h e Supreme Court, however, in Davao Light and Power Co.,

2
Inc. v. Court of Appeals, after reiterating and reaffirming the propo-
sition that writs of attachment m a y properly issue ex parte although
it may, in its discretion, require prior hearing on the application
w i t h notice to the defendant stressed that levy on property pursuant
to the w r i t thus issued m a y not be validly effected unless preceded,
or contemporaneously accompanied by service on the defendant of
summons, a copy of the complaint (and of the appointment of guard-
ian ad litem, if a n y ) , the application for attachment ( i f not incorpo-
rated in but submitted separately from the complaint), the order of
attachment bond, (at page 357)
T h e foregoing doctrine was reiterated in Cuartero v. Court of

3
Appeals, and again stressed that "It is clear from our pronounce-
ments that a w r i t of preliminary attachment may issue even before
summons is served upon the defendant. H o w e v e r the writ cannot
bind and affect the defendant until jurisdiction over his person is
eventually obtained. Therefore, it is required that when the proper
officer commences implementation of the writ of attachment, service
of the w r i t of attachment, service of the summons should be simulta-
neously made."
b. T h r e e Stages in Issuance of Writ
T h e Supreme Court emphasized that the grant of the provi-

sional remedy of attachment practically involves three stages: first,
the court issues the order granting the application; second, the writ
of attachment issues pursuant to the order granting the writ; and
third, the writ is implemented. For the initial two stages, it is not
necessary that jurisdiction over the person of the defendant should
first be obtained. However, once the implementation commences, it
is required that the court must have acquired jurisdiction over the
defendant for without such jurisdiction, the court has no power and
authority to act in any manner against the defendant. A n y order
issuing from the court will not bind the defendant, (p. 226)
êivert v. C A , 168 S C R A 692 (1988).

2
204 S C R A 343 (1991).
3
212 S C R A 260(1992).
13
V O L . III
However, should the Court decide to hold a hearing with notice

to the adverse party, summons should first be served on the latter.
The sheriff is required to attach only so much of the property of
the party against whom the order is issued as may be sufficient to
satisfy the applicant's demand, the amount of which is stated in the
order, unless a deposit is made or a counter-bond is given equal to
said amount. However, if the value of the property to be attached is
less than the amount of the demand, the amount of the applicant's
bond may be equal to the value of said property, and the amount of
the adverse party's deposit or counter-bond may be equal to the
applicant's bond. The writ of preliminary attachment is issued upon
the approval of the requisite bond. (Feria)4
c. Thus, the settled rule is that attachment may be issued ex

parte* Nothing in the Rules of Court make notice and hearing
indispensable and mandatory requisites for the issuance of a w r i t of
6
attachment.
3. When Hearing Necessary
Considering the gravity of the allegation that petitioners have

removed or disposed of their properties or about to do so with
intent to defraud their creditors, and further considering that the
affidavit in support of the preliminary attachment merely states
such ground in general terms without specific allegations of cir-
cumstances to show the reason w h y plaintiffs believe that defend-
ants are disposing of their properties in fraud of creditors, it was
incumbent upon respondent judge to g i v e notice to petitioners and
to allow them to present their position at a hearing when evidence
7
is to be received.
S E C 3. Affidavit and bond required. An o r d e r of at-

tachment shall b e g r a n t e d o n l y w h e n i t a p p e a r s b y the affi-
davit o f the a p p l i c a n t , o r o f s o m e o t h e r p e r s o n w h o p e r s o n -
i n s u l a r Savings Bank v. Court of Appeals, G.R. N o . 123638, June 15, 2005.

5
Filinvest v. Relova, 117 S C R A 420 (1982).
6
See also Belisle Investment and Finance Co., Inc. v. State Investment House,
151 S C R A 630; Mindanao Savings and Loan Association v. Court of Appeals, 172 S C R A
480; Toledo v. Burgos, 168 S C R A 513.
7
Salas v. Adil, 90 S C R A 121; See also Ting v. Villarin, 176 S C R A 532.
14
ally k n o w s the facts, that a sufficient c a u s e of action exists,

that the case is o n e of those m e n t i o n e d in Section 1 hereof,
that t h e r e is no o t h e r sufficient security f o r the claim sought
t o b e e n f o r c e d b y the action, a n d that the a m o u n t d u e t o the
applicant, or the v a l u e of the p r o p e r t y the possession of w h i c h
he is entitled to r e c o v e r , is as m u c h as the s u m f o r w h i c h the
o r d e r i s g r a n t e d a b o v e all l e g a l c o u n t e r c l a i m s . T h e affidavit,
a n d the b o n d r e q u i r e d b y the n e x t s u c c e e d i n g section, must
b e d u l y filed w i t h the c o u r t b e f o r e the o r d e r issues. (3a)
COMMENT:
1. S o u r c e of the R u l e
No change except style by deleting the words "the clerk or

judge or from the last sentence.
2. Notes a n d Cases
a. Requisites for Issuance of Writ M a y Be Issued Ex

Parte
T h e only requisites for the issuance of a w r i t of preliminary

attachment under Section 3, Rule 57 of the Rules of Court are the
affidavit and bond of the applicant.
A preliminary attachment however, is a rigorous remedy which

exposes the debtor to humiliation and annoyance, such that it should
not be abused to cause unnecessary prejudice. It is, therefore, the
duty of the court, before issuing the writ, to ensure that all the
requisites of the law have been complied with; otherwise, the judge
acts in excess of its jurisdiction and the writ so issued shall be null
1
and void.
The affidavit must establish that:

(a) a sufficient cause of action exists;
(b) the case is one of those mentioned in Sec. 1, Rule 57;
1
Salas v. Adil, 90 S C R A 121; Salgado v. Court of Appeals, 128 S C R A 396.
15
V O L . III
(c) there is no sufficient security for the claim sought to be

enforced by the action;
(d) the amount due to the applicant is as much as the sum for
which the order is granted above all legal counter claims.
Failure of the affidavit to show that there is no other sufficient
security for the claim sought to be enforced by the action, that the
said amount due to the plaintiff above all legal set-offs or counter-
claim is as much as the sum for which the order is sought renders
2
that application fatally defective.
Whether or not the affidavit sufficiently established facts therein
stated is a question to be determined by the court in the exercise of
sound discretion. The mere filing of an affidavit reciting the facts
required by the above provision is not sufficient to compel the judge
to grant the writ. It all depends upon the amount of credit given it by
the judge who may accept or reject it in the exercise of his discre-
3
tion.
The stringent conditions for the issuance of the w r i t have been

echoed in all subsequent cases, even as late as K.O. Glass Construc-
tion Co., Inc. i). Valenzuela, wherein the w r i t of preliminary attach-
ment issued was annulled and set aside on the finding that while
the plaintiff "may have stated in his affidavit that a sufficient cause
of action exists against the defendant Kenneth O. Glass, he did not
state therein that the case is one of those mentioned in Section 1
hereof; that there is no other sufficient security for the claim sought
to be enforced by the action; and that the amount due to the appli-
cant is as much as the sum for which the order is granted above all
4
legal counterclaims."
More specifically, it has been held that the failure to allege in

the affidavit the requisites prescribed for the issuance of the w r i t of
preliminary attachment, renders the writ of preliminary attachment
issued against the property of the defendant fatally defective, and
2
Guzman v. Catolico, 65 Phil. 257; K . O . Glass Construction Co., Inc. v. Valenzuela,
116 S C R A 563; Jardine Manila Finance, Inc. v. Court of Appeals, G.R. N o . 55272, April
10,1989,171 S C R A 636.
3
L a Granja, Inc. v. Samson, 58 Phil. 378.
4
K . O . Glass Construction Co., Inc. v. Valenzuela, 116 S C R A 563.
16
the judge issuing it is deemed to have acted in excess of his jurisdic-

5
tion. In fact, in such cases the defect cannot even be cured by amend-
6
ment.
Since the attachment is a harsh and rigorous remedy which

exposes the debtor to humiliation and annoyance, the rule authoriz-
ing its issuance must be strictly construed in favor of defendant. It is
the duty of the court before issuing the w r i t to ensure that all the
7
requisites of the l a w have been complied w i t h . Otherwise, a judge
acquires no jurisdiction to issue the writ.
T h e general rule is that the affidavit is the foundation of the

writ, and it none be filed or one be filed which wholly fails to set out
some facts required by l a w to be stated therein, there is no jurisdic-
tion and the proceedings are null and void. Thus, while not unmindful
of the fact that the property seized under the writ and brought into
the court is w h a t the court finally exercises jurisdiction over, the
court cannot subscribe to the proposition that the steps pointed out
by statutes to obtain such w r i t are inconsequential, and in no sense
8
jurisdictional.
W h e r e petitioner's application for the subject writ of prelimi-

nary attachment did not fully comply with the requisites prescribed
by law, the w r i t w a s declared null and void and of no effect whatso-
9
ever.
S E C 4. Condition of applicants bond. T h e p a r t y a p -

p l y i n g f o r the o r d e r m u s t t h e r e a f t e r g i v e a b o n d executed to
the a d v e r s e p a r t y i n the a m o u n t f i x e d b y the court i n its
o r d e r g r a n t i n g the i s s u a n c e of the w r i t , c o n d i t i o n e d that the
latter w i l l p a y all the costs w h i c h m a y b e a d j u d g e d t o the
a d v e r s e p a r t y a n d all d a m a g e s w h i c h h e m a y sustain b y rea-
son of the attachment, if the c o u r t shall finally a d j u d g e that
the a p p l i c a n t w a s not entitled thereto. (4a)
b
Ibid.; Guzman v. Catolico, 65 Phil. 261, 262.
6
C u Unjieng and Cu Unjieng v. Goddard, 58 Phil. 482.
7
Salgado v. C A , 128 S C R A 395, citing Giani v. Ramirez, 54 Pacific Reporter (2d
91-92).
8
Duxerry v. Dahle, 81 NW 198-199 (1899).
9 Jardine Manila Finance, Inc. v. Court of Appeals, 171 S C R A 636.
17
REMEDIAL LAW Rule 57
Sec. 5
V O L . III
COMMENT:
1. Source of the R u l e
2. C h a n g e in the R u l e
The only change is instead of the amount of the bond to be fixed
by judge, not exceeding the applicant's claim, the present rule leaves
the amount to be fixed by the court in its order without any limita-
tion.
3. Defects a n d I r r e g u l a r i t i e s o f the B o n d m u s t b e
Promptly Raised
1
It is not waived by the filing of counterbond. Attachment is-
2
sued without bond is void.
S E C 5. Manner of attaching property. T h e sheriff en-

forcing the w r i t shall w i t h o u t d e l a y a n d w i t h all r e a s o n a b l e
diligence attach, t o a w a i t j u d g m e n t a n d e x e c u t i o n i n the ac-
tion, only so m u c h of the p r o p e r t y in the P h i l i p p i n e s of the
p a r t y a g a i n s t w h o m the w r i t i s issued, not e x e m p t f r o m ex-
ecution, as m a y be sufficient to satisfy the applicant's de-
m a n d , unless the f o r m e r m a k e s a d e p o s i t w i t h the c o u r t f r o m
w h i c h the w r i t is issued, or g i v e s a c o u n t e r - b o n d e x e c u t e d to
the a p p l i c a n t , i n a n a m o u n t e q u a l t o the b o n d f i x e d b y the
court i n the o r d e r o f a t t a c h m e n t o r t o the v a l u e o f the p r o p -
erty t o b e attached, e x c l u s i v e o f costs. N o l e v y o n a t t a c h m e n t
p u r s u a n t t o the w r i t i s s u e d u n d e r Section 2 h e r e o f shall b e
enforced unless it is p r e c e d e d , or c o n t e m p o r a n e o u s l y accom-
p a n i e d , b y service o f s u m m o n s , t o g e t h e r w i t h copies o f the
complaint, the a p p l i c a t i o n f o r a t t a c h m e n t , the applicant's
affidavit a n d b o n d , a n d the o r d e r a n d w r i t o f attachment, o n
the d e f e n d a n t w i t h i n the P h i l i p p i n e s .
The requirement of p r i o r or contemporaneous service

o f s u m m o n s shall not a p p l y w h e r e the s u m m o n s c o u l d not b e
^ a l d e r o n v. I A C , 155 S C R A 531 (1987).

2
Arellano v. Floud, 238 S C R A 72 (1994).
18
s e r v e d p e r s o n a l l y o r b y substituted service despite diligent

efforts, or the d e f e n d a n t is a r e s i d e n t of the P h i l i p p i n e s tem-
p o r a r i l y a b s e n t t h e r e f r o m , or the d e f e n d a n t is a non-resi-
d e n t of the P h i l i p p i n e s , or the action is o n e in rem or quasi
in rem. ( 5 a )
COMMENT:
Taken from Section 5 of the former Rule.
T h e changes are:
a. T h e p h r a s e in the f o r m e r R u l e "The officer executing

the order shall without delay" was replaced with "The sheriff en-
f o r c i n g the w r i t shall w i t h o u t d e l a y a n d w i t h all r e a s o n a b l e
diligence."
b. T h e statement in the f o r m e r R u l e "deposit with the

clerk or judge of the court from which the order issued, or gives a
counterbond executed to the applicant, in an amount sufficient to
satisfy such demand besides costs, or in an amount equal to the
value of the property which is about to be attached, to secure pay-
ment to the applicant of any judgment which he may recover in the
action" was reworded as follows: "deposit w i t h the court from
w h i c h the w r i t is issued, or gives a c o u n t e r - b o n d executed to
the a p p l i c a n t , i n a n a m o u n t e q u a l t o the b o n d fixed b y the
c o u r t in the o r d e r of attachment or to the v a l u e of the p r o p -
erty to be attached, exclusive of costs."
c. T h e principle of prior or contemporaneous service of sum-
mons were incorporated in this section as follows:
N o levy o n attachment p u r s u a n t t o the w r i t issued un-

d e r Section 2 h e r e o f shall be e n f o r c e d unless it is p r e c e d e d ,
o r c o n t e m p o r a n e o u s l y a c c o m p a n i e d , b y service o f summons,
together w i t h copies of the complaint, the application for
attachment, the applicant's affidavit a n d b o n d , a n d the or-
d e r a n d w r i t of attachment, on the defendant w i t h i n the Phil-
ippines.
19
V O L . III
3. Notes a n d C a s e s
a. Jurisdiction O v e r P e r s o n at T i m e of Implementa-
tion of W r i t
1
In Onate v. Abrogar, the Second Division of the Supreme Court
held that an exception to the established rule on the enforcement of
the writ of attachment can be made where a previous attempt to
serve the summons and the writ of attachment failed due to factors
beyond the control of either the plaintiff or the process server, provided
that such service is effected within a reasonable period thereafter,
(at page 189)
b. However, the First Division held that the subsequent ac-
quisition of jurisdiction over the person of a defendant does not
2
render valid the previous attachment of the property.
The Court en banc adopted the rule by the First Division in

3
H.B. & Zachary v. Court of Appeals, that the attachment of proper-
ties before the service of summons on the defendant is invalid even
though the court later acquires jurisdiction over the defendant. At
the very least, then the writ of attachment must be served simulta-
neously with the service of summons before the w r i t may be en-
forced. As the properties were attached by the sheriff before he had
served the summons on them, the levies must be considered void.
The Decision of February 21, 1994 was therefore reconsidered and
4
set aside.
c. T h e p r e s e n t R u l e , h o w e v e r , a d o p t e d the R u l e i n
Onate v. Abrogar, supra. W h e n it p r o v i d e d that
"The requirement of prior or contemporaneous service of sum-

mons shall not apply where the summons could not be served per-
sonally or by substituted service despite diligent efforts, or the de-
fendant is a resident of the Philippines temporarily absent therefrom,
or the defendant is a non-resident of the Philippines, or the action is
one in rem or quasi in rem?
*230 S C R A 181(1994).
2
H . B . Zachary v. Court of Appeals, 232 S C R A 329 (1994).
3
Supra.
4
Onate v. Abrogar, 240 S C R A 659.
20
Justice Feria expressed the v i e w that: T h e service of summons

after the enforcement of the levy on attachment does not cure the
irregularities that attended such enforcement. The writ of attach-
5
ment should be reserved after the services of the summons.
d. It is, however, only when summons could be served per-

sonally or by substituted service by diligent efforts, but which was
not done that the v i e w of Justice Feria applies, otherwise: "The
requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served personally or by
substituted service despite diligent efforts."
e. Principle Applies only to K n o w n Resident Defend-

ants
As pointed out in the footnote of Seivert "we are here address-

ing the situation of known defendants only. W h e r e the defendant is
a non-resident, attachment of property m a y be sought in order to
bring a res within the jurisdiction of the court, in substitution, as it
6
were of the body of the defendant. Jurisdiction over the res and the
person of the defendant is, in such case, acquired by service of sum-
7
mons by publication though that jurisdiction m a y be made effective
8
only in respect of the res attached."
f. M o r e o v e r , the R u l e d o e s not a p p l y to actions in rem

or quasi in rem, b u t o n l y to actions in personam.
g. A c o u n t e r b o n d e q u a l to the v a l u e of the p r o p e r t y is
sufficient to p r e v e n t the levy, it m u s t h o w e v e r be m a d e prior
9
to the return o t h e r w i s e the sheriff losses authority.
h. Properties w h i c h cannot be attached

10
1. Those statutorily exempt from attachment.
11
2. Title is not in the name of defendant (unless it is shown
that he has beneficial interest in property);
b
See Onate v. Abrogar, 241 S C R A 659. Feria.
6
Section 1(f), Rule 57, Revised Rule6 of Court.
Sections 16, 17 and 18, Rule 14 (id).
8
Seivert v. Court of Appeals, supra.
9
3 MORAN, p. 22,1980 Ed.
10
E.g., Article 153 of the Family Code exempts the family home from attach-
ment.
"Gotauco v. Registry of Deeds, 59 Phil. 756.
21
Sees. 6-7 REMEDIAL LAW Rule 57
V O L . III
3. The laborer's wages shall not be subject to attachment

except for debts incurred for food, shelters, clothing and medical
12
attendance.
S E C . 6. Sheriffs return. A f t e r e n f o r c i n g the w r i t , the

sheriff must l i k e w i s e w i t h o u t d e l a y m a k e a r e t u r n t h e r e o n
to the court f r o m w h i c h the w r i t issued, w i t h a full statement
of his p r o c e e d i n g s u n d e r the w r i t a n d a complete i n v e n t o r y
of the p r o p e r t y attached, together w i t h a n y c o u n t e r - b o n d
given b y the p a r t y a g a i n s t w h o m attachment i s issued, a n d
serve copies thereof on the a p p l i c a n t . (6a)
COMMENT:
2. N o s u b s t a n t i a l c h a n g e s b u t mostly o f style
"Immediately after executing the order the officer must make a

return thereon to the clerk or judge of the court" in the former rule
was replaced with After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court.
The phrase "serve a copy of any such counterbond on the appli-

cant or his lawyer" was replaced with and serve copies thereof in-
cluding a complete inventory of the property attached on the appli-
cant.
A writ of attachment has no lifetime as distinguished from a

1
writ of execution. T h e new Rule fixes the lifetime of a w r i t of execu-
2
tion at five ( 5 ) years from the date of entry of judgment.
S E C . 7. Attachment of real and personal property; re-

cording thereof. R e a l a n d p e r s o n a l p r o p e r t y shall be at-
12
Article 1208, N . C . C .
'Roque v. C A , 93 S C R A 540.
2
Section 6, Rule 39.
22
t a c h e d b y the sheriff e x e c u t i n g the w r i t i n the f o l l o w i n g m a n -

ner:
( a ) R e a l p r o p e r t y , o r g r o w i n g c r o p s thereon, o r a n y
interest t h e r e i n , s t a n d i n g u p o n the r e c o r d of the r e g i s t r y of
d e e d s o f the p r o v i n c e i n the n a m e o f the p a r t y a g a i n s t w h o m
a t t a c h m e n t i s i s s u e d , o r n o t a p p e a r i n g a t all u p o n s u c h
r e c o r d s , o r b e l o n g i n g t o the p a r t y a g a i n s t w h o m attachment
i s i s s u e d a n d h e l d b y a n y o t h e r p e r s o n , o r s t a n d i n g o n the
r e c o r d s o f the r e g i s t r y o f d e e d s i n the n a m e o f a n y other
p e r s o n , by filing w i t h the r e g i s t r y of d e e d s a c o p y of the
o r d e r , t o g e t h e r w i t h a d e s c r i p t i o n of the p r o p e r t y a n d a no-
tice that i t i s a t t a c h e d , o r that s u c h r e a l p r o p e r t y a n d a n y
interest t h e r e i n h e l d b y o r s t a n d i n g i n the n a m e o f such
o t h e r p e r s o n a r e a t t a c h e d , a n d b y l e a v i n g a c o p y o f such
o r d e r , d e s c r i p t i o n , a n d notice w i t h the o c c u p a n t o f the p r o p -
erty, i f any, o r w i t h s u c h o t h e r p e r s o n o r his a g e n t i f f o u n d
w i t h i n the p r o v i n c e . W h e r e the p r o p e r t y h a s b e e n b r o u g h t
u n d e r the o p e r a t i o n o f e i t h e r the L a n d R e g i s t r a t i o n A c t o r
the P r o p e r t y R e g i s t r a t i o n D e c r e e , the notice shall contain a
r e f e r e n c e to the n u m b e r of the certificate of title, the v o l u m e
a n d p a g e i n the r e g i s t r a t i o n b o o k w h e r e the certificate i s
r e g i s t e r e d , a n d the r e g i s t e r e d o w n e r o r o w n e r s thereof.
T h e r e g i s t r a r o f d e e d s m u s t i n d e x attachments f i l e d un-
d e r this section in the n a m e s of the a p p l i c a n t , the a d v e r s e
party, o r the p e r s o n b y w h o m the p r o p e r t y i s h e l d o r i n w h o s e
n a m e it stands in the r e c o r d s . If the attachment is not claimed
o n the entire a r e a o f the l a n d c o v e r e d b y the certificate o f
title, a d e s c r i p t i o n sufficiently a c c u r a t e for the identifica-
tion o f the l a n d o r interest t o b e affected shall b e i n c l u d e d i n
the r e g i s t r a t i o n of s u c h attachment;
( b ) P e r s o n a l p r o p e r t y c a p a b l e o f m a n u a l delivery, b y
t a k i n g a n d safely k e e p i n g it in his custody, after issuing the
c o r r e s p o n d i n g r e c e i p t therefor;
(c) Stocks or s h a r e s , or an interest in stocks or shares,
o f a n y c o r p o r a t i o n o r company, b y l e a v i n g w i t h the presi-
dent or m a n a g i n g a g e n t thereof, a copy of the w r i t , a n d a
notice stating that the stock or interest of the p a r t y against
w h o m the attachment is issued is attached in p u r s u a n c e of
such w r i t ;
23
V O L . III
( d ) D e b t s a n d credits, i n c l u d i n g b a n k deposits, f i n a n -
cial interest, royalties, commissions a n d other p e r s o n a l p r o p -
erty not c a p a b l e of m a n u a l delivery* by l e a v i n g w i t h the per-
son o w i n g such debts, o r h a v i n g i n his possession o r u n d e r
his control, such credits or other p e r s o n a l property, or w i t h
his agent, a copy of the w r i t , a n d notice that the debts o w i n g
b y h i m t o the p a r t y a g a i n s t w h o m attachment i s issued, a n d
the credits a n d other p e r s o n a l p r o p e r t y i n his possession, o r
u n d e r his control, b e l o n g i n g t o s a i d party, a r e a t t a c h e d i n
p u r s u a n c e of such w r i t ;
( e ) T h e interest o f the p a r t y a g a i n s t w h o m a t t a c h m e n t
is issued in p r o p e r t y b e l o n g i n g to the estate of the decedent,
w h e t h e r a s heir, legatee, o r devisee, b y s e r v i n g the e x e c u t o r
o r a d m i n i s t r a t o r o r o t h e r p e r s o n a l r e p r e s e n t a t i v e o f the
decedent w i t h a c o p y of the w r i t a n d notice that s a i d interest
is attached. A c o p y of s a i d w r i t of a t t a c h m e n t a n d of s a i d
notice shall also be filed in the office of the c l e r k of the c o u r t
i n w h i c h s a i d estate i s b e i n g settled a n d s e r v e d u p o n the
heir, legatee o r d e v i s e e c o n c e r n e d .
If the p r o p e r t y s o u g h t to be a t t a c h e d is in custodia legis,

a copy o f the w r i t o f a t t a c h m e n t shall b e f i l e d w i t h the p r o p e r
c o u r t o r q u a s i - j u d i c i a l agency, a n d notice o f the a t t a c h m e n t
s e r v e d u p o n the c u s t o d i a n o f s u c h p r o p e r t y . ( 7 a )
COMMENT:
2. The changes are:
a. T h e word "properties" in the first sentence of the former

Rule was replaced with "Real and personal property."
b. After the phrase in subpar. ( a ) not appearing at all upon

such records, the present Rule added or belonging to the party against
whom attachment is issued and held by any other person, to include
the situation in subsection ( b ) of the former Rule and deleted totally
the said subsection from the present Rule.
c. T h e last t w o sentences of subsection ( a ) the former Rule

which reads "Where the property has been brought under the opera-
24
tion of the L a n d Registration A c t , the notice shall contain a refer-

ence to the number of the certificate of title and the volume and page
in the registration book where the certificate is registered. The reg-
istrar must index attachments filed under this paragraph in the
names both of the applicant and the adverse party" were reworded
as follows: W h e r e the property has been brought under the opera-
tion of either the L a n d Registration A c t or the Property Registration
Decree, the notice shall contain a reference to the number of the cer-
tificate of title, the volume and page in the registration book where
the certificate is registered, and the registered owner or owners
thereof.
d. Subsection ( d ) added "bank deposits, financial interest,

royalties, commissions" in the leviable properties.
e. Instead of a copy of the order to be furnished the repre-

sentative of the deceased as provided for in subsection ( f ) of the
former Rule, the present Rule in subsection (c) changed it to a copy
of the writ.
f. Similarly, the order of attachment was replaced with "a

copy of the writ of attachment" and included a "quasi-judicial agency"
among those to be furnished therewith where property in custodia
legis was attached.
g. Justice Feria points out that Paragraphs ( a ) and ( b ) of the

old rule regarding real property or growing crops thereon registered
in the name of the adverse party or in the name of any other persona
have been combined in a paragraph ( a ) of the new rule, with an
added provision on partial attachment of land or interest therein.
h. Bank deposits, financial interest, royalties and commis-

sions are added to debts and credits and other personal property not
capable of manual delivery. (Feria)
a. A t t a c h m e n t of R e a l P r o p e r t y
"Growing crops" such crops as are still growing on the land
1
and which form part thereof.
1
Article 415(2), Civil Code.
25
V O L . III
The requirement that the notice of levy should contain a refer-

ence to the number of the certificate of title and the volume and page
in the registration book where the certificate is registered is made in
order that the debtor as well as a third person may be properly
informed of the particular land or property that is under the custody
of the court. This can only be accompanied by making a reference to
the certificate of title covering the property. T h e situation differs if
the land is unregistered, in which case it is enough that the notice be
2
registered under A c t 3344.
A notice of levy as regards a registered land which contains no
reference to the number of its certificate of title and the volume and
page in the registry book where the title is registered is legally
ineffective and as such does not have the effect of binding the prop-
erty for purposes of execution. Consequently, a sale carried out by
3
virtue of said levy is invalid and of no legal effect.
A judgment debtor is entitled to notice of l e v y if he is the

occupant of the land. W h a t is required is that the judgment debtor
4
be notified of the auction sale before the actual date of the sale.
In the levy of real property, Section 7, Rule 57 of the Rules of

Court mandates that a notice of the l e v y must be made w i t h the
occupant of the property, if there be any; failure to do so, is fatal to
5
the levy. "It should be noted said the Supreme Court in Obaa v.
6
Court of Appeals, 'that Section 7 of Rule 57 requires that in attach-
ing real property a copy of the order, description, and notice must be
served on the occupant' x x x " (at page 824).
Preference of Preliminary Attachment to Lis Pendens
Preference is given to a duly-registered attachment over a sub-

sequent notice of lis pendens, even if the beneficiary of the notice
acquired the subject property before the registration of the attach-
ment. Under the torrens system, the auction sale of an attached
7
realty retroacts to the date the l e v y was registered.
2
Siari Valley Estates, Inc. v. Lucasan, et al., 109 Phil. 294.
3
Supra.
'Ravanera v. Imperial, 93 S C R A 589.
Philippine Surety and Insurance Co., Inc. v. Zabal, 21 S C R A 682 (1967).
6
172 S C R A 866 (1989).
Du v. Stronghold Insurance Co., Inc., 433 S C R A 43.
26
b. H o w levy o n personal property m a d e
lb constitute a valid l e v y the officer must take actual posses-

sion and actual custody of the property attached as far as practica-
ble under the circumstances. Such property must be in his substan-
tial presence and possession adverse to and exclusive of the at-
8
tachment debtor.
Thus, respondent's act of leaving the passenger j e e p in the

possession and control of the creditor did not satisfy the foregoing
requirements of the Rules; neither did it conform to the plainly
worded R T C order. T h e note in the receipt that imposed on Ignacio
the obligation to produce the same whenever required by the court
was no compliance either, because it did not establish that the prop-
erty w a s in respondent sheriff's substantial presence and posses-
sion. Respondent fell short of his obligation to take and safely keep
the attached property "in his capacity." He cannot feign ignorance of
this duty as he himself correctly cited an early decision of this Court
9
explaining a sheriff's duty in attachment, as follows:
"x x x A verbal declaration of seizure or service of a w r i t of

attachment is not sufficient. T h e r e must be an actual taking of
possession and placing of the attached property under the control of
10
the officer or someone representing h i m .
To constitute a v a l i d l e v y of an attachment, the officer levying

it must take actual possession of the property attached as far as x x
x practicable (under the circumstances). He must put himself in ( a )
position to, and must assert and, in fact, enforce a dominion over the
property adverse to and exclusive of the attachment debtor, and
11
such property must be in his substantial presence and possession.
Of course, this does not mean that the attaching officer may not,
under an arrangement satisfactory to himself put anyone in posses-
sion of the property for the purpose of guarding it, but he can not in
this w a y relieve himself from liability to the parties interested in
said attachment."
W a l k e r v. McMicking, 14 Phil. 668,673 (1909); See Villanueva-Fabella v. Judge

Ralphee, 419 S C R A 440 (2004).
W a l k e r v. McMicking, 14 Phil. 668, 673, December 23,1909, ibid.
10
Hollister v. Goodale, 8 Conn. 332, 21 A m . D e c , 674; Jones v. Howard, 99 Ga.,
451, 59 A m . St. Rep. 231.
"Corniff v. Cook, 95 G a . , 61, 51 A m . St. Rep. 55, 61.
27
V O L . III
Respondent Sheriff's claim that the regional trial court did not
have any storage facility to house said property is no justification.
12
He could have deposited it in a bonded warehouse.
Contrary to respondent sheriffs contention, compelling the at-
taching creditor to release the property in question was not in order,
because the proper remedy provided by the Rules of Court was for
the party whose property had been attached to apply for the dis-
13
charge of the attachment by filing a counterbond. T h e effect of this
remedy is the delivery of possession of the attached property to the
party giving the counterbond. T h e attaching creditor was not au-
thorized to have possession of the attached property, contrary to the
insistence of respondent sheriff.
L e a v i n g the attached property in the possession of the attach-

ing creditor makes a farce of the attachment. This is not compliance
with the issuing court's order. W h e n a w r i t is placed in the hands of
a sheriff, it is his duty, in the absence of any instructions to the
contrary, to proceed with reasonable celerity and promptness to ex-
14
ecute it according to its mandate. He is supposed to execute the
15
order of the court strictly to the letter. If he fails to comply, he is
16
liable to the person in whose favor the process or w r i t runs.
c. M e r e g u a r d i n g o f the p e r s o n a l p r o p e r t y i s a l l o w e d
b u t the sheriff is l i a b l e f o r the loss of the p r o p e r t y
Constructive possession should be held sufficient where actual

possession is not feasible, particularly w h e n it w a s followed up by
the actual seizure of the property as soon as that could possibly be
17
effected.
d. In case of a vessel, l e v y is c o n s t r u c t i v e l y m a d e by
1 8
the registration o f the s a m e w i t h the P h i l i p p i n e C o a s t G u a r d
12
Sebastian v. Valino, 224 S C R A 256, 259, July 5, 1993.
13
Section 12, Rule 57 of the Rules of Court.
14
Villareal v. Rarama, 247 S C R A 493,501, August 23,1995; Balantes v. Ocampo
III, 242 S C R A 327, 331, March 14, 1995.
15
Eduarte v. Ramos, 238 S C R A 36, 40, November 9, 1994, and Wenceslao v.
Madrazo, supra, p. 704.
16
Elipe v. Fabre, 241 S C R A 249,253, February 13,1995; N B I v. Tuliao, A . M . N o .
P-96-1184, March 24,1997.
17
Roque v. Court of Appeals, 93 S C R A 540.
18
Roque v. Court of Appeals, supra.
28
e. Attachment of debts and credits, including bank deposits,

financial interest, royalties, commissions and other personal prop-
erty not capable of manual delivery, by leaving with the person
owing such debts, or having in his possession or under his control,
such credits or other personal property, or with his agent, a copy of
the writ, and notice that the debts owing by him to the party against
w h o m attachment is issued, and the credits and other personal prop-
erty in his possession, or under his control, belonging to said party,
are attached in pursuance of such writ.
In a case, C E I C vigorously argues that the consortium's writ of

attachment over the disputed shares of Chemphil is null and void,
insisting as it does, that the notice of garnishment was not validly
served on the designated officers.
To support its contention, C E I C presented the sheriff's notice

of garnishment which showed on its face that said notice was re-
ceived by one T h e l l y Ruiz who w a s neither the president nor manag-
ing agent of Chemphil. It makes no difference, C E I C further avers,
that T h e l l y Ruiz was the secretary of the President of Chemphil, for
under the above-quoted provision she is not among the officers so
authorized or designated to be served with the notice of garnishment.
T h e Court refused to subscribe to such a narrow v i e w of the

rule on proper service of writs of attachment.
A secretary's major function is to assist his or her superior. H e /

she is in effect an extension of the latter. Obviously, as such, one of
her duties is to receive letters and notices for and in behalf of her
superior, as in the case at bench. T h e notice of garnishment was
addressed to and was actually received by Chemphil's president
through his secretary who formally received it for him. Thus, in one
19
case, we ruled that the secretary of the president may be consid-
ered an "agent" of the corporation and held that service of summons
on him is binding on the corporation.
Moreover, the service and receipt of the notice of garnishment
on 19 July 1985 was duly acknowledged and confirmed by the secre-
tary of Chemphil, Rolando N a v a r r o and his successor Avelino Cruz
19
Summit Trading & Dev. Corp. v. Avendano, 135 S C R A 397 (1985).
29
V O L . III
20
through their respective certifications dated 15 August 1989 and
21
21 August 1989.
The Court ruled that there was substantial compliance with
22
Sec. 7(d), Rule 57 of the Rules of Court.
S E C . 8. Effect of attachment of debts, credits and all other

similar personal property. A l l p e r s o n s h a v i n g in their pos-
session o r u n d e r their control a n y credits o r o t h e r s i m i l a r
personal p r o p e r t y b e l o n g i n g t o the p a r t y a g a i n s t w h o m at-
tachment is issued, or o w i n g a n y debts to h i m , at the time of
service u p o n them o f the c o p y o f the w r i t o f attachment a n d
notice a s p r o v i d e d i n the last p r e c e d i n g section, shall b e
liable to the a p p l i c a n t for the a m o u n t of s u c h credits, d e b t s
or other similar p e r s o n a l p r o p e r t y , until the a t t a c h m e n t is
d i s c h a r g e d , o r a n y j u d g m e n t r e c o v e r e d b y h i m i s satisfied,
unless such p r o p e r t y is d e l i v e r e d or t r a n s f e r r e d , or such debts
a r e p a i d , to the clerk, sheriff, or o t h e r p r o p e r officer of the
court issuing the attachment. (8a)
COMMENT:
2. N o c h a n g e except "copy o f the o r d e r o f attachment"

w a s c h a n g e d to "copy of the w r i t of attachment"
(a) Garnishment is a specie of attachment by means of which

plaintiff seeks to subject to his claim property of the defendant in
the hands of a stranger to the litigation or money owed by such
1
stranger to the defendant. Such stranger is called the garnishee.
Obligation of Garnishee By means of the citation the stranger

becomes a forced intervenor required to pay his debt not to his
20
A n n e x 8, Rollo of G.R. Nos. 112438-39, pp. 447-449.
21
A n n e x 9, Id. at 450.
22
Chemphil Export and Import Corp. v. C A , 251 S C R A 286.
Engineering Construction v. N P C , 163 S C R A 9; Rizal Banking Corporation v.

Judge Castro, 168 S C R A 49 (1988).
30
former creditor, but to the new creditor, who is creditor in the main
2 3
litigation. T h e garnishee has no choice but to obey the garnishment.
( b ) Concept Garnishment is a case of involuntary novation

4
by the substitution of one creditor for another.
Garnishment as a remedy is intended to secure the payment of

a judgment when a well-founded belief exist that the erring party
will abscond or deliberately render the execution of the judgment
nugatory. T h e rule on attachment also apply to garnishment pro-
5
ceedings.
(c) Garnishee's liability for debts and credits
A garnishee after having been judicially compelled to pay the

amount of the judgment represented by funds in its possession be-
longing to the judgment debtor should be released from all responsi-
6
bilities over such amount after delivery thereof to the sheriff. The
1
property attached is brought in custodia legis.
( d ) W h e n a person has funds in his possession belonging to a

debtor, and said funds are attached by a creditor of the latter, said
person is relieved from all responsibility to said creditor if he is
8
judicially compelled to deliver said funds to the aforesaid debtor.
( e ) W h e r e attached properties belonging to the principal

debtor are taken out of the hands of a person by legal process after
he had been notified of the order of attachment, said person cannot
be made to answer for the properties in a proceeding to carry out
9
said attachment.
(f) The remedy of a judgment creditor against the garnishee
is to either enforce his claim in the same case or in a separate
10
action.
^ a y a b a s Land Co. v. Sharruf, 41 Phil. 382.

3
Rizal Commercial Banking Corporation v. Castro, supra.
'Tayabas L a n d Co. v. Sharruf, supra.
^ h e Manila Remnant Co. v. Court of Appeals, 231 S C R A 281, March 16,1994.
Engineering Construction Incorporated v. National Power Corporation, G.R.
N o . 34589, June 29,1988,163 S C R A 9.
7
Rizal Banking Corp. v. Judge de Castro, supra.
8
National Bank v. Olutanga, 54 Phil. 346.
Ibid.
10
Tec. Bi and Co. v. Chartered Bank of India, 41 Phil. 596.
31
V O L . III
( g ) The rule is well-settled that when a writ of attachment

has been levied on real property or any interest therein belonging to
the judgment debtor, the levy thus effected creates a lien which
11
nothing can destroy but its dissolution.
( h ) Property levied and attached pursuant to a writ of attach-
ment annotated in the books of the Register of Deeds is in custodia
legis. Consequently a writ of possession issued by another court in
favor of a third party, such as a purchaser in foreclosure under A c t
3135 is null and void because it interferes with the jurisdiction of a
12
coordinate and co-equal court.
( i ) An attaching creditor acquires by operation of law the

13
right of redemption of foreclosed properties.
( j ) Continuity of Attachment
1. An attachment lien continues until the debt is paid, or
sale is had under execution issued on the judgment or until judg-
ment is satisfied, or the attachment discharged or vacated in the
same manner provided by law.
It has been held that the appointment of a rehabilitation re-

ceiver who took control and custody of BF has not necessarily se-
cured the claims of Roa and Mendoza. In the event that the receiver-
ship is terminated with such claims not having been satisfied, the
creditors may also find themselves without security therefor in the
civil action because of the dissolution of the attachment. This should
not be permitted. H a v i n g previously obtained the issuance of the
writ in good faith, they should not be deprived of its protection if the
14
rehabilitation plan does not succeed and the civil action is resumed.
2. Attachment is in the nature of a proceeding in rem. It is

against the particular property. T h e attaching creditor thereby ac-
quires specific lien upon the attached property which ripens into a
judgment against the res when the order of sale is made. Such a
n
C h u a P u a Hermanos v. Register of Deeds of Batangas, 50 Phil. 670; Govern-
ment, et al. v. Mercado, 67 Phil. 409; Consolidated B a n k and Trust Corporation v.
Intermediate Appellate Court, 150 S C R A 591, 598 (1987); Chemphil C E I C v. C A , G.R.
Nos. 112438-39, 251 S C R A 286, December 12, 1995.
"Consolidated Bank and Trust Corp. v. I A C , supra.
"Ibid.
U
B F Homes, Inc. v. Court of Appeals, 190 S C R A 262 (1990).
32
proceeding is in effect a finding that the property attached is an in-

debted thing and a virtual condemnation of it to pay the owner's
debt. T h e law does not provide the length of time an attachment lien
shall continue after the rendition of judgment, and it must therefore
necessarily continue until the debt is paid, or sale is had under ex-
ecution issued on the judgment or until judgment is satisfied, or the
15
attachment discharged or vacated in some manner provided by law.
3. The lien obtained by attachment stands upon as high eq-

uitable grounds as a mortgage lien
T h e lien or security obtained by an attachment even before

judgment, is a fixed and positive security, a specific lien, and, al-
though whether it w i l l ever be made available to the creditor de-
pends on contingencies, its existence is in no w a y contingent, condi-
tioned or inchoate. It is a vested interest, an actual and substantial
security, affording specific security for satisfaction of the debt put in
suit, which constitutes a cloud on the legal title, and is as specific as
if created by virtue of a voluntary act of the debtor and stands upon
16
as high equitable grounds as a m o r t g a g e .
4. Compromise Agreement Does Not Dissolve Writ of Prelimi-

nary Attachment
E v e n in cases where there is a compromise agreement, the rule

established in the aforequoted cases still applies, even more so since
the terms of the agreement have to be complied with in full by the
parties thereto. T h e parties to the compromise agreement should
not be deprived of the protection provided by an attachment lien
especially in an instance where one reneges on his obligations under
17
the agreement.
Moreover, wrote the court, a violation of the terms and condi-
tions of a compromise agreement entitles the aggrieved party to a
16
Government of the Philippine Islands v. Mercado, supra. See also Valdevieso
v. Damalerio, G.R. N o . 133303, February 17, 2005, 451 S C R A 664, 670, holding that
levy on attachment duly registered takes preference over a prior unregistered sale.
"CORPUS JURIS SECUNDUM, 433, and authorities therein cited. B F Homes, Inc. v.
C A , 190 S C R A 262 (1990).
17
Chemphil Import & Export Corporation v. Court of Appeals, 251 S C R A 257,
288, supra. See also Lavides v. Pre, G.R. N o . 127830, Oct. 21, 2001, citing Santos v.
Aquino, Jr., G.R. Nos. 86181-82, 205 S C R A 127, 133 (1992) holding then that levy on
attachment cannot be destroyed except the very dissolution of the attachment or levy
itself.
33
V O L . III
18
writ of execution. The non-fulfillment of the terms and conditions
of a compromise agreement approved by the Court justifies execu-
tion thereof and the issuance of the writ for said purpose is the
Court's ministerial duty enforceable by mandamus. In Abenojar &
19
Tana v. CA, et al. A judicial compromise may be enforced by a w r i t
of execution. If a party fails or refuses to abide by the compromise,
the other party may enforce the compromise or regard it as re-
20
scinded and insist upon his original demand.
The Court concluded if we were to rule otherwise, we would in
effect create a back door by which a debtor can easily escape his
creditors. Consequently, we would be faced w i t h an anomalous situ-
ation where a debtor, in order to buy time to dispose of his proper-
ties, would enter into a compromise agreement he has no intention
of honoring in the first place. T h e purpose of the provisional remedy
of attachment would thus be lost. It would become, in analogy, a
21
declared and toothless tiger.
Property under sequestration is under custodia legis and cannot
be attached.
22
Receivership a n d attachment defined.
Special adjective tools or devices w e r e provided by the Revolu-

a
tionary Government for the recovery of that ill-gotten wealth." These
took the form of provisional remedies akin to preliminary attach-
ment (Rule 57), w r i t of seizure of personality (Rule 60) and receiver-
ship (Rule 59). T h e y were: ( a ) sequestration and ( b ) freeze orders, as
regards "unearthed instance of 'ill-gotten wealth"'; and ( c ) provi-
sional takeover, as regards "business enterprises and properties taken
over by the government of the Marcos Administration or by entities
or persons close to former President Marcos."
Executive O r d e r s R e S e q u e s t r a t i o n , F r e e z i n g a n d T a k e o -
ver.
These special remedies w e r e prescribed and defined in Execu-

tive Orders Numbered 1 and 2, promulgated by President Corazon
18
Chemphil Export & Import Corporation v. Court of Appeals, supra.
19
G . R . N o . 104133,18 April 1995.
^Canonizado v. Benitez, 127 S C R A 610 (1984).
21
Chemphil Export & Import Corp. v. C A , supra.
^Republic of the Philippines v. Saludares, 327 S C R A 449, March 9, 2000.
34
C. A q u i n o in March, 1986. T h e i r validity and propriety were sus-

tained by the Court on M a y 27,1987, against claims that they were
unconstitutional as being bills of attainder, or as violative of the
right against self-incrimination and the guaranty against unreason-
able searches and seizures. In the same case, the Court also set the
parameters for and restrictions on the proper exercise of the rem-
edies.
23
In BASECO v. PCGG, sequestration is defined as the process,
which m a y be employed as a conservatory w r i t whenever the right of
the property is involved, to preserve, pending litigation, specific prop-
erty subject to conflicting claims of ownership or hens and privi-
leges.
T h e Court also noted the relationship between attachment and

receivership, on one hand, and sequestration, freeze order and pro-
visional takeover on the other. T h e latter are ancillary remedies in
prosecuting the ill-gotten wealth of the previous Marcos regime. The
Court observed that sequestration, freezing and provisional takeo-
v e r are akin to the provisional remedy of preliminary attachment or
receivership.
By an order of attachment, a sheriff seizes property of a de-

fendant in a civil suit so that it m a y stand as security for the satis-
faction of any judgment that m a y be obtained, and not disposed of,
or dissipated, or lost intentionally, or otherwise, pending the action.
W h e n a w r i t of attachment has been levied on real property or any
interest therein belonging to the judgment debtor, the levy creates a
lien which nothing can destroy but its dissolution. This well-settled
rule is likewise applicable to a w r i t of sequestration.
W h e r e the disputed properties w e r e already under custodia

legis by virtue of a valid w r i t of sequestration issued by the P C G G
when respondent Judge issued the assailed writ of attachment in
favor of private respondent, said writ of the P C G G could not be
interfered with by the R T C because the P C G G is a coordinate and
co-equal body. T h e P C G G had acquired by operation of law the right
of redemption over the property until after the final determination
24
of the case or until its dissolution.
M
150 S C R A 181,182 (1987).
'"Republic of the Philippines v. Saludares, March 9, 2000, 327 S C R A 449.
35
V O L . III
S E C 9. Effect of attachment of interest in property be-

longing to the estate of a decedent. T h e attachment of the
interest of an heir, legatee, or devisee in the p r o p e r t y belong-
ing to the estate of a decedent shall not i m p a i r the p o w e r s of
the executor, administrator, or other p e r s o n a l r e p r e s e n t a -
tive of the decedent o v e r such p r o p e r t y f o r the p u r p o s e of
administration. S u c h p e r s o n a l representative, h o w e v e r , shall
r e p o r t the attachment to the c o u r t w h e n a n y petition f o r
distribution i s f i l e d , a n d i n the o r d e r m a d e u p o n such peti-
tion, distribution m a y b e a w a r d e d t o such heir, legatee, o r
devisee, b u t the p r o p e r t y a t t a c h e d shall b e o r d e r e d deliv-
e r e d to the sheriff m a k i n g the levy, subject to the c l a i m of
such heir, legatee, o r devisee, o r a n y p e r s o n c l a i m i n g u n d e r
him. (9a)
COMMENT:
2. N o c h a n g e except the w o r d "officer" w a s c h a n g e d
to "sheriff."
S E C . 10. Examination of party whose property is attached

and persons indebted to him or controlling his property; de-
livery of property to sheriff. A n y p e r s o n o w i n g d e b t s to the
p a r t y w h o s e p r o p e r t y i s a t t a c h e d o r h a v i n g i n his possession
o r u n d e r his control a n y c r e d i t o r o t h e r p e r s o n a l p r o p e r t y
b e l o n g i n g t o such party, m a y b e r e q u i r e d t o a t t e n d b e f o r e
the court in w h i c h the action is p e n d i n g , or b e f o r e a commis-
sioner a p p o i n t e d b y the court, a n d b e e x a m i n e d o n o a t h r e -
specting the s a m e . T h e p a r t y w h o s e p r o p e r t y i s a t t a c h e d
m a y also b e r e q u i r e d t o a t t e n d f o r the p u r p o s e o f g i v i n g
information r e s p e c t i n g his p r o p e r t y , a n d m a y b e e x a m i n e d
o n oath. T h e c o u r t may, after s u c h e x a m i n a t i o n , o r d e r p e r -
sonal p r o p e r t y c a p a b l e o f m a n u a l d e l i v e r y b e l o n g i n g t o h i m ,
in the possession of the p e r s o n so r e q u i r e d to a t t e n d b e f o r e
the court, to be d e l i v e r e d to the c l e r k of the c o u r t or sheriff
o n such terms a s m a y b e j u s t , h a v i n g r e f e r e n c e t o a n y lien
thereon o r claim a g a i n s t the s a m e , t o a w a i t the j u d g m e n t i n
the action. (10a)
36
COMMENT:
T h e only change is to delete "other proper officer."
S E C . 11. When attached property may be sold after levy

on attachment and before entry of judgment. W h e n e v e r it
shall b e m a d e t o a p p e a r t o the c o u r t i n w h i c h the action i s
p e n d i n g , u p o n h e a r i n g w i t h notice t o b o t h parties, that the
p r o p e r t y a t t a c h e d is p e r i s h a b l e , or that the interests of all
the p a r t i e s t o the action w i l l b e s u b s e r v e d b y the sale thereof,
the c o u r t m a y o r d e r s u c h p r o p e r t y t o b e s o l d a t p u b l i c auc-
tion i n s u c h m a n n e r a s h e m a y direct, a n d the p r o c e e d s o f
s u c h sale t o b e d e p o s i t e d i n c o u r t t o a b i d e the j u d g m e n t i n
the action. (11a)
COMMENT:
2. C h a n g e i n the R u l e
T h e phrase "if practicable" was deleted and the word "judge"

was changed to "court."
T h e rule clarifies that perishable and other property which have
been attached may be ordered sold before entry of judgment and the
proceeds deposited. After entry of judgment, the proceeds shall be
1
paid to the judgment obligee or returned to the judgment obligor.
3. Notes and Cases

"Perishable" ordinarily means subject to a speedy and natural
decay (e.g., fruits, vegetables, dairy products, meat). But if the time
contemplated is necessarily long, the term may include material
2
depreciation in value.
êcs. 15 and 16. Infra. Feria.

SLACK'S LAW DICTIONARY, 5th Ed., p. 1025.
37
V O L . III
S E C . 12. Discharge of attachment upon giving counter-

bond. After a w r i t of attachment h a s b e e n enforced, the
party w h o s e p r o p e r t y has b e e n attached, o r the p e r s o n a p -
p e a r i n g on his behalf, m a y m o v e f o r the d i s c h a r g e of the
attachment w h o l l y o r i n p a r t o n the security given. T h e c o u r t
shall, after d u e notice a n d h e a r i n g , o r d e r the d i s c h a r g e of
the attachment if the m o v a n t m a k e s a cash deposit, or files a
counter-bond executed to the a t t a c h i n g p a r t y w i t h the clerk
of the court w h e r e the application is m a d e , in an a m o u n t e q u a l
to that fixed by the court in the o r d e r of attachment, exclusive
of costs. B u t if the attachment is s o u g h t to be d i s c h a r g e d w i t h
respect to a p a r t i c u l a r p r o p e r t y , the c o u n t e r - b o n d shall be
equal to the v a l u e of that p r o p e r t y as d e t e r m i n e d by the court.
I n either case, the c a s h d e p o s i t o r the c o u n t e r - b o n d shall
secure the p a y m e n t o f a n y j u d g m e n t that the a t t a c h i n g p a r t y
m a y r e c o v e r i n the a c t i o n . A n o t i c e o f t h e d e p o s i t s h a l l
forthwith be s e r v e d on the attaching party. U p o n the
discharge of an attachment in a c c o r d a n c e w i t h the p r o v i s i o n s
of this section, the p r o p e r t y a t t a c h e d , or the p r o c e e d s of a n y
sale thereof, shall be d e l i v e r e d to the p a r t y m a k i n g the deposit
o r g i v i n g the c o u n t e r - b o n d , o r t o the p e r s o n a p p e a r i n g o n his
behalf, the deposit or counter-bond a f o r e s a i d s t a n d i n g in place
of the p r o p e r t y so r e l e a s e d . S h o u l d s u c h c o u n t e r - b o n d f o r a n y
r e a s o n b e f o u n d t o b e , o r b e c o m e insufficient, a n d the p a r t y
f u r n i s h i n g the s a m e fail t o f i l e a n a d d i t i o n a l c o u n t e r - b o n d ,
the attaching p a r t y m a y a p p l y f o r a n e w o r d e r o f attachment.
(12a)
COMMENT:
2. The changes are:
a. U n d e r the f o r m e r R u l e : At any time after an order of

attachment has been granted, the party whose property has been
attached, or the person appearing on his behalf, may, upon reason-
able notice to the applicant, apply to the judge who granted the
order, or to the judge of the court in which the action is pending, was
replaced with "After a w r i t of a t t a c h m e n t h a s b e e n e n f o r c e d ,
38
the p a r t y w h o s e p r o p e r t y h a s b e e n attached, o r the p e r s o n

a p p e a r i n g o n his behalf, m a y m o v e f o r the d i s c h a r g e o f the
a t t a c h m e n t w h o l l y o r i n p a r t o n the security given."
b. T h e judge shall, after hearing, order the discharge of the

attachment if a cash deposit is made, or a counter-bond executed to
the attaching creditor is filed, on behalf of the adverse party, with
the clerk or judge of the court where the application is made, in an
amount equal to the value of the property attached as determined by
the judge, to secure the payment of any judgment that the attaching
creditor m a y recover in the action was replaced with T h e court
shall, after d u e notice a n d h e a r i n g , o r d e r the d i s c h a r g e o f
the a t t a c h m e n t if the m o v a n t m a k e s a c a s h deposit, or files a
c o u n t e r - b o n d e x e c u t e d t o the a t t a c h i n g p a r t y w i t h the clerk
o f the c o u r t w h e r e the a p p l i c a t i o n i s m a d e , i n a n a m o u n t
e q u a l t o that f i x e d b y the c o u r t i n the o r d e r o f attachment,
e x c l u s i v e of costs.
c. T h e R u l e on p a r t i a l d i s c h a r g e , under the original pro-

posal the amount of the counterbond should be equal to that fixed by
the court in the order of attachment, not to an amount equal to the
value of the property attached as provided for in the former rule.
T h e Committee recommended the removal of the proviso on the
counterbond equal to the value of the property attached on the ground
that where the value of the property is less than the amount of the
judgment sought to be recovered, it would be unfair to the attaching
creditor to discharge the attachment for a bond of lesser amount.
T h e Supreme Court, however restored the provision with the limita-
tion that, "if the attachment is sought to be d i s c h a r g e d w i t h re-
spect to a p a r t i c u l a r p r o p e r t y , the counterbond shall be equal to
the value of that property as determined by the court. In other
words, the discharge would not be of the writ in its entirety, but only
partially with respect to the particular property sought to be dis-
charged where the amount thereof would be less than the amount of
1
the judgment sought to be recovered in their action.
d. If a cash deposit is made, "A notice of the deposit shall

f o r t h w i t h b e s e r v e d o n the attaching party."
i n s u l a r Savings Bank v. Court of Appeals, G.R. N o . 123638, June 15, 2005,

holding that the counter bond should as much as possible correspond in value to or
approximately match the attaching creditor's principal claim (citing Asuncion v. Court
of Appeals, 166 S C R A 55 [1988]).
39
V O L . III
a. The deposit or counterbond stands in place of the prop-
erty so released regardless of how judgment was obtained, whether
on the merits or by compromise agreement.
b. There is a difference between the bond for issuance of
writ and bond for lifting of writs. The first is for damages by reason
of the issuance of the writ (Sec. 4) while the second is to secure the
payment of the judgment to be recovered (Sees. 5 and 12).
c. Only the defendant or the party whose property is at-
tached may move for its lifting. If the attachment is proper, the
2
discharge should be by counterbond under this section.
d. If a counterbond is f i l e d , the a t t a c h m e n t m u s t be
3
discharged. But a discharge is not automatic, there must be a hear-
4
ing and a court order.
e. A garnishment order m a y be lifted, if it is established:
( 1 ) that the party whose accounts has been garnished

has posted a counterbond or has made the requisite deposit;
( 2 ) the order was improperly or irregularly issued, as

there is no ground for garnishment or affidavit and or bond
5
filed therefor are defective or insufficient.
S E C . 13. Discharge of attachment on other grounds.

The party whose property has been o r d e r e d attached m a y
file a motion w i t h the c o u r t in w h i c h the action is p e n d i n g
b e f o r e o r after l e v y o r e v e n after the r e l e a s e o f the a t t a c h e d
property, f o r a n o r d e r t o set a s i d e o r d i s c h a r g e the attach-
ment o n the g r o u n d that the s a m e w a s i m p r o p e r l y o r i r r e g u -
l a r l y issued o r e n f o r c e d , o r that the b o n d i s insufficient. I f
the attachment is excessive, the d i s c h a r g e shall be l i m i t e d to
the excess. I f the m o t i o n b e m a d e o n affidavits o n the p a r t o f
the m o v a n t b u t not o t h e r w i s e , the a t t a c h i n g p a r t y m a y o p -
2
Jopillo, Jr. v. Court of Appeals, G.R. N o . 76026, 167 S C R A 247, November 9,
1988.
3
K . O . Glass v. Valenzuela, 116 S C R A 563.
4
Belisle Investment and Finance Co., Inc. v. State Investment House, Inc., 151
S C R A 630.
^ h e Manila Remnant Co., Inc. v. Court of Appeals, March 16, 1994.
40
p o s e the m o t i o n b y counter-affidavits o r o t h e r evidence i n

a d d i t i o n t o that o n w h i c h the a t t a c h m e n t w a s m a d e . A f t e r
d u e notice a n d h e a r i n g , the c o u r t shall o r d e r the setting
a s i d e or the c o r r e s p o n d i n g d i s c h a r g e of the attachment if it
a p p e a r s that i t w a s i m p r o p e r l y o r i r r e g u l a r l y i s s u e d o r en-
f o r c e d , or that the b o n d is insufficient, or that the attach-
m e n t is excessive, a n d the defect is not c u r e d f o r t h w i t h . (13a)
COMMENT:
2. T h e changes are:
a. U n d e r the f o r m e r R u l e : "The party whose property has

been attached m a y also, at any time either before or after the re-
lease if the attached property, or before any attachment shall have
been actually levied, upon reasonable notice to the attaching credi-
tor, apply to the judge who granted the order, or to the judge of the
court in which the action is pending, for an order to discharge the
attachment on the ground that the same was improperly or irregu-
larly issued, under the present Rule: T h e p a r t y w h o s e p r o p e r t y
h a s b e e n o r d e r e d a t t a c h e d m a y f i l e a motion w i t h the court
i n w h i c h the action i s p e n d i n g b e f o r e o r after levy o r even
after the r e l e a s e of the a t t a c h e d p r o p e r t y . W h i l e the f o r m e r
R u l e says the application m a y be filed with the judge who granted
the order, or to the judge of the court in which the action is pending,
the present Rule limits the filing to the c o u r t in w h i c h the action
is p e n d i n g .
b. T h e former Rule by referring to "the party whose property

has been attached" would seem to connote that there must already
be an attachment before the application for discharge may be filed
although this is qualified by the following statement "before any
attachment shall have been actually levied, the present Rule clari-
fies this by referring to "The p a r t y w h o s e p r o p e r t y has b e e n
o r d e r e d attached m a y file a motion, etc."
c. T h e former Rule limits the ground of discharge to the
improper or irregular issuance of the writ. The present rule adds as
grounds therefor where the writ was improperly or irregularly en-
41
Sec. 13 REMEDIAL LAW Role 57
V O L . III
forced, or that the bond is insufficient. If the attachment is exces-

sive, the discharge shall be limited to the excess.
d. The present Rule allows for the curing of the defects, and
directs the discharge if the defect is not cured forthwith.
e. It was held in Mindanao Savings Loan Asso., Inc. v. Court
1
of Appeals, that objections to the impropriety or irregularity of the
writ of attachment "may no longer be invoked once a counterbond is
filed,'' when the ground for the issuance of the w r i t forms the core of
the complaint.
Thus, after the defendant has obtained the discharge of the
writ of attachment by filing a counterbond under Section 12, Rule 57
of the Rules of Court, he may not file another motion under Section
13, Rule 57 to quash the w r i t for impropriety or irregularity in
issuing it.
Justice Narvasa, however, pointed out in Davao Light and Power

2
Co. v. Court of Appeals, that the lifting of an attachment on the
ground that it has been irregularly or improperly issued m a y be
resorted B E F O R E o r A F T E R P R O P E R T Y H A S B E E N R E L E A S E D
F R O M A L E V Y on A T T A C H M E N T as is made clear by Section 13 of
the Rule.
3
This is so because as pointed out in Calderon v. LAC, "The
attachment debtor cannot be deemed to have w a i v e d any defect in
the issuance of the attachment w r i t by simply availing himself of
9
one w a y of discharging the attachment w r i t instead of the other. *
Davao L i g h t reiterated other related principles dealt w i t h in

4
Mindanao Savings and Loans Association, Inc. v. C A . , to wit:
(a) When an attachment may not be dissolved by a showing of

its irregular or improper issuance:
u
x x x ( W ) h e n the preliminary attachment is issued upon
a ground which is at the same time the applicant's cause of
action; e.g., 'an action for money or property embezzled or
'172 S C R A 480 (1989).

2
204 S C R A 343 (1991).
8
155 S C R A 531(1987).
4
Supra.
42
Role 57 PROVISIONAL REMEDIES Sec. 13
fraudulently misapplied or converted to his own use by a public

officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a
5
willful violation of duty,' or 'an action against a party who has
been guilty of fraud in contracting the debt or incurring the
6
obligation upon which the action is brought,' the defendant is
not allowed to file a motion to dissolve the attachment under
Section 13 of Rule 57 by offering to show the falsity of the
factual averments in the plaintiffs application and affidavits
on which the w r i t was based and consequently that the writ
7
based thereon had been improperly or irregularly issued
the reason being that the hearing on such a motion for dissolu-
tion of the w r i t would be tantamount to a trial of the merits of
the action. In other words, the merits of the action would be
ventilated at a mere hearing of a motion, instead of at the
regular trial. Therefore, w h e n the w r i t of attachment is of this
8
nature, the only w a y it can be dissolved is by a counterbond."
(b) Effect of the dissolution of a preliminary attachment on

the plaintiffs attachment bond:
"x x x. T h e dissolution of the preliminary attachment upon

security given, or a showing of its irregular or improper issu-
ance, does not of course operate to discharge the sureties on
plaintiffs own attachment bond. T h e reason is simple. That
bond is 'executed to the adverse party, x x x conditioned that
the x x (applicant) w i l l pay all the costs which may be adjudged
to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that
9
the applicant was not entitled thereto.' Hence, until that de-
termination is made, as to the applicant's entitlement to the
attachment, his bond must stand and cannot be withdrawn."
W h e n the ground for the issuance of the writ is also the core of
the complaint, the question of whether the plaintiff was entitled to
6
Sec. K b ) , Rule 57.
Sec. 1(d), Rule 57.
"See Benitez v. I A C , 154 S C R A 41.
"G.B., Inc. v. Sanchez, 98 Phil. 886.
9
Sec. 4, Rule 57.
43
V O L . III
the writ can only be determined after, not before, a full blown trial
on the merits of the case. This accords with the ruling in G.B., Inc. v.
Sanchez, 98 Phil. 886 that: "The merits of a main action are not
triable in a motion to discharge an attachment, otherwise an appli-
cant for the dissolution could force a trial on the merits of the case on
10
this motion."
Citing Davao Light (Supra), the Supreme Court in Cuartero v.
11
Court of Appeals, held that an attachment may not be dissolved by
a showing of its irregular or improper issuance if it is upon a ground
which is at the same time the applicant's cause of action in the main
cause since an anomalous situation would result if the issues of the
cause would be ventilated and resolved in a mere hearing of the
motion.
12
Similarly, the Supreme Court in Onate v. Abrogar, held that
the alleged absence of fraud in contracting the obligation cannot be
considered a ground for lifting the w r i t since this delves into the
13
very complaint itself. Citing Cuartero v. Court of Appeals. W h e r e a
discharge on this ground was held to be a grave abuse of discretion
correctible by certiorari.
M a y the defendant, after procuring the dissolution of the at-

tachment by filing a counterbond, ask for the cancellation of the
counterbond on the ground that the order of attachment was im-
properly issued? T h a t question was answered in Uy Kimpang v.
14
Javier, that "the obligors in the bond are absolutely liable for the
amount of any judgment that the plaintiff m a y recover in the action
without reference to the question of whether the attachment was right-
fully or wrongly issued."
The liability of the surety on the counterbond subsists until the

Court shall have finally absolved the defendant from the plaintiff's
claims. Only then m a y the counterbond be released. T h e same rule
applies to the plaintiff's attachment bond. T h e liability of the surety
on the bond subsists because the final reckoning is when the Court
10
Mindanao Savings Loan Assn., Inc. v. C A , 172 S C R A 480.
n
212 S C R A 260 (1992).
12
230 S C R A 181 (1994).
l3
Supra. See also Liberty Insurance Corporation v. Court of Appeals, 222 S C R A
37(1993).
14
65 Phil. 170.
44
shall finally adjudge that the attaching creditor was not entitled to
15
the issuance of the attachment writ."
Failure to state a cause of action is a ground to discharge but

not when the answer or motion merely traverses the allegations of
the complaint.
T h e foregoing provision grants an aggrieved party relief from

baseless and unjustifiable attachments procured, among others, upon
false allegations, without having to file any cash deposit or counter-
16
bond. W h e n the facts or some of them, stated in the plaintiff's
affidavit, are shown by the defendant to be untrue, the writ of at-
17
tachment m a y be considered as improperly or irregularly issued.
2. B u r d e n of P r o o f
W h e r e , however, a petition to dissolve is applied for, the attach-

ing creditor must prove that the attachment was not irregularly
18
issued. He should prove his allegation of fraud. There must be
19
notice of motion to l i f t .
3. N e c e s s i t y of H e a r i n g of M o t i o n to D i s c h a r g e
W h e n the attachment is challenged for having been illegally or

improperly issued, there must be a hearing with the burden of proof
to sustain the w r i t being on the attaching creditor. That hearing
embraces not only the right to present evidence but also a reason-
able opportunity to know the claims of the opposing parties and
meet them. T h e right to submit arguments implies that opportunity,
otherwise the right would be a barren one. It means a fair and open
hearing. A n d , as provided by the aforecited Section 13 of Rule 57,
the attaching creditor should be allowed to oppose the application
20
for the discharge of the attachment.
Thus, it is true that petitioner's motion to discharge was set for
hearing with notice to B P I but it is likewise true that counsel for the
16
Calderon v. LAC, 155 S C R A 531; Mindanao Savings and Loan Association, Inc.
v. Hon. Court of Appeals, 172 S C R A 480, April 18, 1989.
16
Filinvest Credit Corporation v. Relova, 117 S C R A 420; Miranda v. Court of
Appeals, G.R. N o . 80030, Oct. 29, 1989.
17
Salgado v. Court of Appeals, 128 S C R A 395.
18
Benitez v. I A C , Sept. 15, 1987, 154 S C R A 41.
19
Asuncion v. C A , 166 S C R A 55 (1988).
^Peroside Phils. Corp. v. C A , 199 S C R A 882 (1991).
45
V O L . III
latter asked for an opportunity to file a written opposition and for a

hearing to which he asked that petitioner Edmund O. Mapua be
subpoenaed. Said counsel was allowed to file a written opposition
which he seasonably did, but Judge Pineda denied both the requested
subpoena and hearing and, instead, granted the discharge of the
attachment. These are the bases for BPI's complaint that it was
21
denied due process.
The order of Judge Acosta, suspending the writ of attachment
was in essence a lifting of said writ which order having likewise
been issued ex parte and without notice and hearing in disregard of
Section 13 of Rule 57, could not have resulted in the discharge of the
attachment. Said attachment continued unaffected by the so-called
order of suspension and could not have been deemed inefficacious
until and only by reason of its supposed restoration in the order of
December 16,1987 of Judge Gerona. Under the facts of this case, the
ex parte discharge or suspension of the attachment is a disservice to
the orderly administration of justice and nullifies the underlying
role and purpose of preliminary attachment in preserving the rights
22
of the parties pendente lite as an ancillary remedy.
It is grave abuse necessity of discretion to deny petitioner's

urgent motion to Discharge W r i t of Preliminary Attachment without
conducting a hearing and requiring the plaintiff to substantiate its
allegation of fraud. If wrongfully issued it should at once be cor-
rected (Supra). Illegality may be established by affidavits and op-
23
posed by counter-affidavits.
W h e n petitioners filed a Motion for Reconsideration of the or-

der directing the issuance of the w r i t of attachment, respondent
judge should have considered it as a motion for the discharge of the
attachment and should have conducted a hearing or required sub-
mission of counter-affidavits from the petitioners if only to gather
facts in support of the allegation of fraud. This is what Section 13 of
24
Rule 57 mandates.
This procedure should be followed because, as the Court has

time and again said, attachment is a harsh, extraordinary and sum-
21
Supra.
22
Supra.
23
Jopillo, Jr. v. Court of Appeals, 167 S C R A 247, 9 Nov. 1988.
24
A d l a w a n v. Torres, 233 S C R A 645 (1994).
46
mary remedy and the rules governing its issuance must be con-
strued strictly against the applicant. Verily, a writ of attachment
can only be granted on concrete and specific grounds and not on
25
general averments quoting perfunctorily the words of the Rules.
S E C . 14. Proceedings where property claimed by third

person. If the p r o p e r t y a t t a c h e d is c l a i m e d by a n y p e r s o n
o t h e r t h a n the p a r t y a g a i n s t w h o m attachment h a d b e e n
i s s u e d o r his a g e n t , a n d s u c h p e r s o n m a k e s a n affidavit o f
his title thereto, or r i g h t to the possession thereof, stating
the g r o u n d s o f s u c h r i g h t o r title, a n d serves s u c h affidavit
u p o n the sheriff w h i l e the latter h a s possession of the at-
t a c h e d p r o p e r t y , a n d a c o p y t h e r e o f u p o n the attaching party,
the sheriff s h a l l n o t b e b o u n d t o k e e p the p r o p e r t y u n d e r
attachment, u n l e s s the a t t a c h i n g p a r t y o r his agent, o n de-
m a n d of the sheriff, s h a l l file a b o n d a p p r o v e d by the c o u r t to
i n d e m n i f y the t h i r d - p a r t y c l a i m a n t in a s u m not less t h a n
the v a l u e o f the p r o p e r t y l e v i e d u p o n . I n case o f d i s a g r e e -
m e n t a s t o s u c h v a l u e , the s a m e shall b e d e c i d e d b y the court
i s s u i n g the w r i t o f a t t a c h m e n t . N o c l a i m f o r d a m a g e s f o r the
t a k i n g o r k e e p i n g o f the p r o p e r t y m a y b e e n f o r c e d a g a i n s t
the b o n d unless the action t h e r e f o r i s filed w i t h i n o n e h u n -
d r e d t w e n t y (120) d a y s f r o m the d a t e o f the f i l i n g o f the b o n d .
T h e sheriff shall not b e l i a b l e f o r d a m a g e s for the t a k i n g

o r k e e p i n g o f s u c h p r o p e r t y , t o a n y s u c h t h i r d - p a r t y claim-
ant, i f s u c h b o n d shall b e f i l e d . N o t h i n g h e r e i n contained
shall p r e v e n t s u c h c l a i m a n t o r a n y t h i r d p e r s o n f r o m vindi-
cating his c l a i m to the p r o p e r t y or p r e v e n t the attaching
p a r t y from c l a i m i n g d a m a g e s in the s a m e or a s e p a r a t e ac-
tion a g a i n s t a t h i r d - p a r t y c l a i m a n t w h o filed a frivolous or
p l a i n l y s p u r i o u s claim.
W h e n the w r i t of attachment is issued in f a v o r of the
R e p u b l i c o f the P h i l i p p i n e s , o r a n y officer d u l y r e p r e s e n t i n g
it, the filing of such b o n d shall not be r e q u i r e d , a n d in case
the sheriff is s u e d for d a m a g e s as a result of the attachment,
h e shall b e r e p r e s e n t e d b y the Solicitor G e n e r a l , a n d i f held
l i a b l e therefor, the actual d a m a g e s a d j u d g e d b y the court
^Supra, citing D.P. L u b . Oil Marketing Center, Inc. v. Nicolas, 191 S C R A 423.
47
V O L . III
shall be p a i d by the N a t i o n a l T r e a s u r e r out of the funds to be

a p p r o p r i a t e d for the p u r p o s e . (14a)
COMMENT:
2. F o l l o w i n g a r e the c h a n g e s in the R u l e
a. The reference to property "taken" in the opening state-
ment of the former Rule have been changed to "attached";
b. The use of the term "officer" has been changed to "sheriff."
c. Under the former Rule the officer shall not be bound to

keep the property under the attachment, unless the attaching credi-
tor or his agent, on demand of said officer, secures him against such
claim by a bond in a sum not greater than the value of the property
attached." Under the present Rule: the sheriff shall not be bound to
keep the property under attachment, unless the attaching party or
his agent, on demand of the sheriff, shall file a bond approved by the
court to indemnify the t h i r d - p a r t y c l a i m a n t in a s u m not less
than the v a l u e o f the p r o p e r t y l e v i e d u p o n .
d. Under the former Rule the officer shall not be liable for
damages, for the taking or keeping of such property, to any such
third-party claimant, unless such a claim is so made and the action
upon the bond brought within one hundred and twenty (120) days
from the date of the filing of said bond.
Under the present Rule " N o claim for damages for the taking
or keeping of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond."
And, even if such action is filed, "The sheriff shall not be liable
for damages for the taking or keeping of such property, to any such
third-party claimant, if such bond shall be filed."
e. Under the former Rule nothing herein contained shall

prevent such third person from vindicating his claim to the property
by proper action. The present R u l e is b r o a d e r in scope. N o t h i n g
h e r e i n c o n t a i n e d shall p r e v e n t s u c h c l a i m a n t o r a n y t h i r d
p e r s o n f r o m v i n d i c a t i n g his c l a i m t o the p r o p e r t y o r p r e v e n t
48
the a t t a c h i n g p a r t y from c l a i m i n g d a m a g e s in the same or a

separate action against a third-party claimant who filed a frivolous
or plainly spurious claim. T h e rule includes the claimant or any
third person and the attaching party against a third party claimant
who filed a frivolous or plainly spurious claim in vindicating their
claims either in the same or a separate action.
a . A u t h o r i t y o f A n o t h e r C o u r t t o I s s u e W r i t o f Attach-
ment O v e r Property Attached
1
In Esteban Uy v. Court of Appeals, the main issue in this case
is whether or not properties levied and seized by virtue of a writ of
attachment and later by a w r i t of execution, were under custodia
legis and therefore not subject to the jurisdiction of another co-equal
court where a third-party claimant claimed ownership of the same
properties.
Speaking thru Justice Paras, the Court declared that: The is-
sue has long been laid to rest in the case of Manila Herald Publish-
2
ing Co., Inc. v. Ramos, where the Court ruled that while it is true
that property in custody of the l a w m a y not be interfered with,
without the permission of the proper court, this rule is confined to
cases where the property belongs to the defendant or one in which
the defendant has proprietary interests. But when the Sheriff, act-
ing beyond the bounds of his office seizes a stranger's property, the
rules do not apply and interference with his custody is not interfer-
ence with another court's order of attachment.
Under the circumstances, this Court categorically stated:
"It has been seen that a separate action by the third party who
claims to be the owner of the property attached is appropriate. If
this is so, it must be admitted that the judge trying such action may
render judgment ordering the sheriff or whoever has in possession
the attached property to deliver it to the plaintiff claimant or desist
from seizing it. It follows further that the court may make an inter-
locutory order, upon the filing of such bond as may be necessary, to
release the property pending final adjudication of the title. Jurisdic-
*191 S C R A 275 (1990).

2
88 Phil. 94 (1951).
49
V O L . III
tion over an action includes jurisdiction on interlocutory matter inci-

dental to the cause and deemed necessary to preserve the subject
3
matter of the suit or protect the parties' interest. This is self-evident.
The foregoing ruling was reiterated in the later case of Traders
4
Royal Bank v. I A C and even more recently in the case of Escovilla v.
5
C A , where the Court stressed:
"The power of the court in the execution of judgments

extends only over properties unquestionably belonging to the
judgment debtor. T h e l e v y by the sheriff of a property by virtue
of a writ of attachment maybe considered as made under the
authority of the court only when the property levied upon be-
longs to the defendant. If he attaches properties other than
those of the defendant, he acts beyond the limits of this author-
ity. T h e court issuing a writ of execution is supposed to enforce
its authority only over properties of the judgment debtor. Should
a third party appear to claim the property levied upon by the
sheriff, the procedure laid down by the Rules is that such claim
should be the subject of a separate and independent action."
b. Sale a n d Attachment of Properties of T h i r d P e r s o n

Null and Void
T h e sale of the disputed properties at the public auction, in

satisfaction of a judgment of a co-equal court does not render the
case moot and academic. T h e undeviating ruling in such cases is
that attachment and sale of properties belonging to a third person is
void because such properties cannot be attached and sold at public
6
auction judgment against the judgment debtor.
7
c. I n t e r v e n t i o n is also p e r m i s s i b l e .
S E C . 15. Satisfaction of judgment out of property at-

tached; return of sheriff. If j u d g m e n t be r e c o v e r e d by t h e
attaching p a r t y a n d e x e c u t i o n issue t h e r e o n , the sheriff m a y
3
M a n i l a Herald Publishing Co., Inc. v. Ramos, supra.
4
133 S C R A 141 (1984).
5
179 S C R A 108, November 6,1989.
^ r o s c o v. Nepomuceno, 57 Phil. 1007 (1932-33); Uy, Jr. v. Court of Appeals, 191
S C R A 275 (1990).
7
M a n i l a Herald Publishing v. Ramos, supra.
50
c a u s e the j u d g m e n t t o b e satisfied out o f the p r o p e r t y at-

t a c h e d , if it be sufficient f o r that p u r p o s e in the f o l l o w i n g
manner:
( a ) B y p a y i n g t o the j u d g m e n t o b l i g e e the p r o c e e d s o f
all sales o f p e r i s h a b l e o r o t h e r p r o p e r t y sold i n p u r s u a n c e o f
the o r d e r o f the c o u r t , o r s o m u c h a s shall b e n e c e s s a r y t o
satisfy the j u d g m e n t ;
( b ) I f a n y b a l a n c e r e m a i n s d u e , b y selling s o m u c h o f
the p r o p e r t y , r e a l o r p e r s o n a l , a s m a y b e n e c e s s a r y t o satisfy
the b a l a n c e , i f e n o u g h f o r that p u r p o s e r e m a i n i n the sher-
iff's h a n d s , 6r in those of the c l e r k of the court;
( c ) B y collecting f r o m a l l p e r s o n s h a v i n g i n their pos-

session credits b e l o n g i n g t o the j u d g m e n t obligor, o r o w i n g
d e b t s to the latter at the time of the attachment of such
credits o r d e b t s , the a m o u n t o f s u c h credits a n d debts a s
d e t e r m i n e d b y the c o u r t i n the action, a n d stated i n the j u d g -
m e n t , a n d p a y i n g the p r o c e e d s o f s u c h collection o v e r t o the
judgment obligee.
T h e sheriff s h a l l f o r t h w i t h m a k e a r e t u r n i n w r i t i n g t o
the c o u r t o f his p r o c e e d i n g s u n d e r this section a n d f u r n i s h
the p a r t i e s w i t h copies thereof. (15a)
COMMENT:
2. T h e c h a n g e s a r e a s follows:
a. T h e terms "attaching creditor" have been changed to "at-
taching party" and the terms "judgment creditor" to "judgment obli-
gee", "officer" or "proper officer" to "sheriff."
b. T h e Sheriff is required to furnish the parties with copies
of his return of the proceedings under this section.
3. N o t e s a n d Cases:
a. H o w Judgment is satisfied. A Judgment is satisfied by:
(i) Payment of proceeds of sale of perishable property.
51
V O L . III
( i i ) Sale of property if there is a balance.

(iii) Collection of property of garnishee without need of
prior permission to file action, but may be enforced in same
1
action.
( i v ) Return must be made within ten (10) days from re-
2
ceipt of writ.
b. W h e r e Sheriff E m b e z z l e s P r o c e e d s
Personal property may have been levied upon under attach-
ment and left in the possession of the sheriff or other officer levying
the writ to secure the payment of such judgment as may be recov-
ered in the action. W h e r e execution issues, it is the duty of such
officer to apply towards its satisfaction the property so attached
which are left in his hands; but he may have embezzled or otherwise
misappropriated it, or allowed it to be lost by his negligence. In such
case, it must, as between the plaintiff and defendant, and persons
claiming under defendant, be treated as though it had been levied
upon under execution as well as under attachment, and therefore as
3
satisfying the judgment to the extent of its value.
4
c. See, however Philippine Airlines v. Court of Appeals,
where it was held that payment by check in the name of sheriff who
absconded did not operate as satisfaction of the judgment.
S E C . 16. Balance due collected upon an execution; excess

delivered to judgment obligor. If after r e a l i z i n g u p o n all
the p r o p e r t y attached, i n c l u d i n g the p r o c e e d s o f a n y d e b t s
or credits collected, a n d a p p l y i n g the p r o c e e d s to the satis-
faction of the j u d g m e n t , less the e x p e n s e s of p r o c e e d i n g s
u p o n the j u d g m e n t , a n y b a l a n c e shall r e m a i n d u e , the sheriff
must p r o c e e d t o collect s u c h b a l a n c e a s u p o n o r d i n a r y ex-
ecution. W h e n e v e r the j u d g m e n t shall h a v e b e e n p a i d , the
sheriff, u p o n r e a s o n a b l e d e m a n d , m u s t r e t u r n t o the j u d g -
ment o b l i g o r the a t t a c h e d p r o p e r t y r e m a i n i n g i n his h a n d s ,
x
Tayabas Land Transportation Co. v. Sharruf, 41 Phil. 382.
2
Bilag-Rivera v. Lora, July 6, 1995.
3
P N B v. Esteban I. Vasquez, 71 Phil. 433.
4
181 S C R A 557, January 30, 1990.
52
a n d a n y p r o c e e d s o f the sale o f the p r o p e r t y attached not

a p p l i e d to the j u d g m e n t . (16a)
COMMENT:
2. C h a n g e s in R u l e
9 9
The term "officer ' was changed to "sheriff and "judgment debtor"
to "judgment obligor"
S E C . 17. Recovery upon the counter-bond. W h e n the

j u d g m e n t h a s b e c o m e executory, the s u r e t y o r sureties o n
a n y c o u n t e r - b o n d g i v e n p u r s u a n t to the p r o v i s i o n s of this
R u l e t o s e c u r e the p a y m e n t o f the j u d g m e n t shall b e c o m e
c h a r g e d o n s u c h c o u n t e r - b o n d a n d b o u n d t o p a y the j u d g -
m e n t o b l i g e e u p o n d e m a n d the a m o u n t d u e u n d e r the j u d g -
ment, w h i c h a m o u n t m a y b e r e c o v e r e d f r o m such surety o r
sureties after notice a n d s u m m a r y h e a r i n g i n the s a m e ac-
tion. (17a)
COMMENT:
T h e present Rule no longer requires the return of the execution

unsatisfied to hold the surety or sureties on any counter-bond liable.
It is enough if the j u d g m e n t has become executory. T h e term
"judgment creditor" has been changed to "judgment obligee."
a. T h e counterbond contemplated in the rule is evidently an
ordinary guaranty where the sureties assume a subsidiary liability.
This is not the case where, the surety bound itself "jointly and sever-
ally" (in solidum) with the defendant; and it is prescribed in Article
53
V O L . III
2059, paragraph 2, of the Civil Code of the Philippines that excussion

(previous exhaustion of the properties of the debtor) shall not take
place "if he (the guarantor) has bound himself solidarity with the
debtor." The rule cannot be construed as requiring that an execution
against the debtor be first unsatisfied even if the bond were a solidary
one; for a procedural rule may not amend the substantive law ex-
pressed in the Civil Code, and further would nullify the express
stipulation of the parties that the surety's obligation should be
1
solidary with that of the defendant.
b. The counterbond answers for any judgment and this in-

2
cludes judgment pending appeal.
c. Requisites for recovery upon counter-bond: To recover upon

counter-bond, the following requisites must be present:
1. T h e creditor demands upon the surety for satisfac-

tion of the judgment.
2. The surety be g i v e n notice and a summary hearing

in the same action as to his liability for judgment under the
3
counterbond.
a. T h e Bondsmen are not liable on the bond when

the obligation assumed is premised upon the issuance of a
writ of attachment by a court which was not actually
4
issued.
b. T h e motion by the surety to quash the w r i t of

5
execution is sufficient notice.
c. After demand, the amount m a y be recovered

from the surety in the same action. T h e r e is no need for a
6
separate action.
d. T h e rule of exclusion cannot be invoked by a

bondsman of a counterbond against an attachment w r i t
'Luzon Steel v. Sia, 28 S C R A 58.

2
Phil. British Assurance Co. v. I A C , 150 S C R A 520.
T h e Imperial Insurance v. de los Angeles, 111 S C R A 25.
4
Vadil v. de Venecia, 9 S C R A 374.
5
Dizon v. Valdez, 23 S C R A 200.
T h e Imperial Insurance, Inc. v. de los Angeles, 111 S C R A 25.
54
Rule 57 PROVISIONAL REMEDIES Sees. 18-19
where there is already a final and executory judgment

7
sentencing the bondsman as solidarity liable pro indiviso.
e. T h e bond answers for the judgment even if not

expressly stipulated. T h e law under which this bond is
8
issued shall be considered as part of the bond.
S E C . 18. Disposition of money deposited. W h e r e the

p a r t y a g a i n s t w h o m a t t a c h m e n t h a d b e e n i s s u e d h a s depos-
ited m o n e y i n s t e a d o f g i v i n g c o u n t e r - b o n d , i t shall b e a p -
p l i e d u n d e r the d i r e c t i o n of the c o u r t to the satisfaction of
a n y j u d g m e n t r e n d e r e d i n f a v o r o f the a t t a c h i n g party, a n d
after satisfying the j u d g m e n t the b a l a n c e shall b e r e f u n d e d
to the d e p o s i t o r or his a s s i g n e e . If the j u d g m e n t is in f a v o r of
the p a r t y a g a i n s t w h o m a t t a c h m e n t w a s issued, the w h o l e
s u m d e p o s i t e d m u s t b e r e f u n d e d t o h i m o r his assignee. (18a)
COMMENT:
Taken from Section 18.
2. C h a n g e i n the R u l e
T h e term "attaching creditor" has been changed to "attaching

party."
S E C . 19. Disposition of attached property where judg-

ment is for party against whom attachment was issued. If
j u d g m e n t b e r e n d e r e d a g a i n s t the attaching party, all the
p r o c e e d s o f sales a n d m o n e y collected o r r e c e i v e d b y the
sheriff, u n d e r the o r d e r of attachment, a n d all p r o p e r t y at-
t a c h e d r e m a i n i n g in a n y such officer's h a n d s , shall be deliv-
e r e d t o the p a r t y a g a i n s t w h o m attachment w a s issued, a n d
the o r d e r of attachment d i s c h a r g e d . (19a)
7
Pioneer Ins. v. Camilon, 116 S C R A 190; The Imperial Insurance v. de los Ange-
les, supra.
Ibid.
55
V O L . III
COMMENT
2. C h a n g e in R u l e
The "clerk or other proper officer" was removed by the present
Rule.
S E C 20. Claim for damages on account of improper, ir-

regular or excessive attachment. An a p p l i c a t i o n f o r d a m -
ages on account of i m p r o p e r , i r r e g u l a r or excessive attach-
ment must b e filed b e f o r e the trial o r b e f o r e a p p e a l i s p e r -
fected o r b e f o r e the j u d g m e n t b e c o m e s executory, w i t h d u e
notice to the attaching p a r t y a n d his s u r e t y or sureties, set-
ting forth the facts s h o w i n g his r i g h t t o d a m a g e s a n d the
a m o u n t thereof. S u c h d a m a g e s m a y b e a w a r d e d o n l y after
p r o p e r h e a r i n g a n d shall b e i n c l u d e d i n the j u d g m e n t o n the
m a i n case.
I f the j u d g m e n t o f the a p p e l l a t e c o u r t b e f a v o r a b l e t o
the p a r t y a g a i n s t w h o m the a t t a c h m e n t w a s issued, h e m u s t
claim d a m a g e s s u s t a i n e d d u r i n g the p e n d e n c y o f the a p p e a l
b y f i l i n g a n a p p l i c a t i o n i n the a p p e l l a t e c o u r t , w i t h notice t o
the p a r t y i n w h o s e f a v o r the a t t a c h m e n t w a s i s s u e d o r his
surety o r sureties, b e f o r e the j u d g m e n t o f the a p p e l l a t e c o u r t
becomes executory. T h e a p p e l l a t e c o u r t m a y a l l o w the a p p l i -
cation t o b e h e a r d a n d d e c i d e d b y the t r i a l c o u r t .
N o t h i n g h e r e i n contained shall p r e v e n t the p a r t y a g a i n s t

w h o m the attachment w a s issued f r o m r e c o v e r i n g i n the s a m e
action the d a m a g e s a w a r d e d t o h i m f r o m a n y p r o p e r t y o f the
attaching p a r t y not e x e m p t f r o m e x e c u t i o n s h o u l d the b o n d
o r deposit g i v e n b y the latter b e insufficient o r fail t o fully
satisfy the a w a r d . (20a)
COMMENT:
56
a. T h e epigraph was changed from, "Disposition of attached

property where judgment is for party against whom attachment was
issued." to "Claim for damages on account of improper, irregular
or excessive attachment."
b. T h e first and third paragraphs incorporate decisions of

the Supreme Court which explained that it is not necessary for an
application for damages that the judgment be in favor of the party
against w h o m the attachment was issued, and broadens the scope of
damages from those resulting from the attachment, to include im-
proper, irregular or excessive attachment.
c. T h e last paragraph is new: "Nothing herein contained

shall prevent the party against whom the attachment was issued
from recovering in the same action the damages awarded to him
from any property of the attaching party not exempt from execution
should the bond or deposit given by the latter be insufficient or fail
to fully satisfy the award.
1
This modifies the doctrine in Pacis v. COMELEC, and subse-
quent pronouncements to the effect that recovery of damages is
2
limited to the amount of the bond. Under the present rule, the
party against whom the attachment was issued may recover in the
same action the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy the awed.
a. R e m e d y is E x c l u s i v e
T h e foregoing remedy has been said to be exclusive such that
no claim for recovery of damages may be filed after the judgment
3
has become final and executory.
b. Requisites
To Claim for damages upon the bond, the following requisites
must be present:
*29 S C R A 24.
2
Aquino v. Socorro, 35 S C R A 373, 376.
^ a c i s v. Commission on Elections, 29 S C R A 24, 27.
57
V O L . III
1. There must be an application before the trial court either

by motion or counterclaim with notice to surety who must be given
opportunity to present such defense as he may have with the princi-
pal and to cross-examine witnesses if he so desires.
2. A judgment for defendant is tantamount to a declaration
that plaintiff has no cause of action and, therefore not entitled to
attachment. The phrase "not entitled thereto" means no cause of
4
action, no fraud, or has other security.
3. Damages must be awarded before judgment becomes fi-
nal.
4. Claims for damages against the bond must be filed in the
5
same action which issued the writ of attachment. Otherwise, it is
6
barred.
c. E x c e p t i o n s to the r u l e that c l a i m m u s t be filed in
the s a m e case:
1. W h e r e the principal case was dismissed for lack of juris-
diction and no claim for damages could have been presented in the
7
said case.
2. A separate case for damages resulting from the attach-

8
ment may be consolidated if it is still pending. W h e r e the issuing
court rules that the questioned attachment was proper, res judicata
9
bars complaint. A separate action for damages based on malicious
prosecution may however be filed but this right depends upon the
10
law governing malicious prosecutions.
3. W h e r e a writ of attachment was declared illegal, the de-

fendant against whom it was issued m a y file his claim for damages
in the Court of Appeals before the latter decides the appeal on the
4
Calderon v. LAC, 155 S C R A 531 (1987).
6
Rejuso v. Estipona, 72 S C R A 509; Consolidated Bank and Trust Corp. v. I A C ,
153 S C R A 591; Pioneer Insurance and Surety Corp. v. Hontanosas, 78 S C R A 447,467.
6
Stronghold Insurance v. Court of Appeals, G . R . N o . 84979, Nov. 6,1989; Philip-
pine Charter Insurance Corp. v. Court of Appeals, G.R. N o . 88379, Nov. 15, 1989;
Maningo v. I A C , 183 S C R A 691, March 26, 1990.
7
Santos v. C A , 95 Phil. 360.
Consolidated Bank v. I A C , 150 S C R A 591.
9
Supra; See also The Consolidated Bank and Trust Corporation v. Capistrano,
Adm. Matter N o . R-66, March 18, 1988,159 S C R A 47.
10
Aquino v. Socorro, 35 S C R A 373.
58
merits. T h e Court of Appeals must hear the motion and not dismiss
the appeal for not filing appellants' brief whose deferment was re-
11
quested.
4. F i l i n g of C o u n t e r b o n d D o e s not R e l i e v e L i a b i l i t y
T h e filing of a counterbond does not relieve applicant's attach-
ment bond's liability for damages. Liability attaches if the plaintiff
is not entitled to the attachment because the requirements entitling
him to the w r i t are wanting, or if the plaintiff has no right to the
attachment because the facts stated in his affidavit, or some of them
12
are untrue.
T h e final reckoning is when "the court shall finally adjudge

that the attachment creditor was not entitled to the issuance of the
13
attachment w r i t in the first place."
An attachment m a y be said to be wrongful when, for instance,

the plaintiff has no cause of action, or that there is not true ground
therefor, or that the plaintiff has a sufficient security other than the
property attached, which is tantamount to saying that the plaintiff
is not entitled to attachment because the requirements entitling
14
him to the w r i t are w a n t i n g . W h e r e plaintiff, in securing the writ of
attachment did not act w i t h bad faith or malice, he shall be liable
15
only for actual damages and not moral or exemplary damages.
16
In Malayan Insurance v. Salas T h e Supreme Court laid
down the following requisites for application for damages:
a. That the defendant-claimant has secured a favorable judg-
ment in the main action (plaintiff has no cause of action);
b. T h a t the application for damages showing claimant's right
thereto and the amount thereof, be filed in the same action before
trial or before appeal is perfected or before the judgment becomes
executory;
c. That due notice be given to the other party and his surety
or sureties, notice to the principal not being sufficient; and
n
H a n i l Development Co. v. I A C , 144 S C R A 557; See also concurring opinion of
Justice Antonio in Malayan Insurance v. Salas, 90 S C R A 252.
12
Calderon v. I A C , 155 S C R A 531, Nov. 11, 1987.
l
*Ibid.
1 4
B A Finance Corp. v. Court of Appeals, 161 S C R A 608 (1988).
l5
Ibid.
16
90 S C R A 252.
59
V O L . III
d. That there should be a proper hearing and the award for

damages should be included in the final judgment.
e. Exception
Where defendant seasonably files his application for damages
in the Court of Appeals it was not his fault that the damages claimed
by him against the surety, were not included in the judgment of the
Court of Appeals affirming the trial court's award of damages pay-
17
able by the principal in the replevin bond.
6. F a v o r a b l e J u d g m e n t a g a i n s t w h o m a t t a c h m e n t is-
sued Not R e q u i r e d
It was clarified by Justice, later Chief Justice N a r v a s a in
18
Zaragoza v. Fidelino, that a party against w h o m an attachment
was issued may apply for damages under the rule, it is not necessary
that the judgment is favorable to him. Although a party is adjudged
liable to another if it be established that the attachment issued at
the latter's instance was wrongful and the farmer had suffered in-
jury thereby, recovery for damages m a y be had by the party thus
prejudiced by the wrongful attachment, even if the judgment be
adverse to him.
To hold a surety on a counterbond liable what is entailed is:
(1) the filing of an application therefor w i t h the Court having

jurisdiction of the action; ( 2 ) the presentation thereof before the
judgment becomes executory (or before the trial or before appeal is
perfected); ( 3 ) the statement in said application of the facts showing
the applicant's right to damages and the amount thereof; ( 4 ) the
giving of due notice of the application to the attaching creditor and
his surety or sureties; and ( 5 ) the holding of a proper hearing at
which the attaching creditor and the sureties m a y be heard on the
application. These requisites apply not only in cases of seizure or
delivery under Rule 60, but also in cases of preliminary injunctions
under Rule 58, receiverships under Rule 59 and attachment under
19
Rule 57.
ll
Ibid.
18
163 S C R A 443 (1988).
19
Philippine Charter Insurance Corp. v. Court of Appeals, 179 S C R A 468, No-
vember 15,1989.
60
It should be stressed, however, that enforcement of a surety's

liability on a counterbond given for the release of property seized
under a w r i t of preliminary attachment is governed, not by said
Section 20, but by another specifically and specially dealing with the
20
matter: Section 17 of Rule 5 7 .
7. R i g h t of S u r e t y to D u e P r o c e s s
T h e filing of the attachment bond by a surety undoubtedly

connotes and operates as a voluntary submission by it to the Court's
jurisdiction, and of course binds it to faithfully comply with its spe-
cific obligations under its bond.
T h e surety does not, to be sure, become liable on its bond sim-

ply because judgment is subsequently rendered against the party
who obtained the preliminary attachment. T h e surety becomes li-
able only w h e n and if "the court shall finally adjudge that the appli-
cant was not entitled to the attachment." This is so regardless of the
nature and character of the judgment on the merits of the principal
claims, counterclaims or cross-claims, etc. asserted by the parties
against each other. Indeed, since an applicant's cause of action may
be entirely different from the ground relied upon by him for a pre-
liminary attachment, it m a y w e l l be that although the evidence
warrants judgment in favor of said applicant, the proofs may never-
theless also establish that said applicant's proffered ground for at-
tachment was inexistent or specious and hence, the writ should not
have issued at all; i.e., he was not entitled thereto in the first place.
In that event, the final verdict should logically award to the appli-
cant the relief sought in his basic pleading, but at the same time
sentence him usually on the basis of a counterclaim to pay
damages caused to his adversary by the wrongful attachment.
W h e n the final judgment declares that the party at whose in-

stance an attachment had issued was not entitled thereto, there is
no question about the eminent propriety of condemning that party to
the payment of all the damages that the wrongful attachment had
caused to the party whose property had been seized under the at-
21
tachment w r i t .
">Ibid.
^Philippine Charter Insurance v. C A , supra.
61
V O L . III
But what of the surety's liability? The surety on an attachment

bond, as already pointed out, assures that the applicant "will pay all
the costs which may be adjudged to the adverse party and all dam-
ages which he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto" In
other words the surety, by submitting its attachment bond, binds
itself solidarily to make the same payments which its principal
the party at whose instance the attachment issues may be con-
demned to make, to compensate for the damages resulting from the
wrongful attachment, although unlike its principal, its liability is
limited to the amount stated in its bond.
The final adjudication "that the applicant was not entitled" to

the attachment standing alone, does not suffice to make the surety
liable. It is necessary, in addition, that the surety be accorded due
process, i.e., that it be given an opportunity to be heard on the
question of its solidary liability for damages arising from wrongful
attachment. This, by established rule and practice, is accorded to
the surety at a summary hearing, scheduled after judgment on pres-
entation of an application to hold it answerable on its bond. E v i -
dently, such a summary hearing is not rendered unnecessary or
superfluous by the fact that the matter of damages was among the
issues tried during the hearings on the merits, unless of course, the
surety had previously been impleaded as a party, or otherwise ear-
lier notified and given opportunity to be present and ventilate its
side on the matter during the trial. T h e procedure for the rendition
of a binding directive on the surety upon its solidary liability for
damages for wrongful attachment is indicated in Section 20, Rule 57
of the Rules of Court.
Certain principles are derived from this provision of the Rules.

A party against whom a writ of preliminary attachment is issued
may impugn the writ by alleging and proving inter alia that the
applicant was not entitled thereto, i.e., that the asserted ground for
attachment was inexistent, or the amount for which the w r i t was
sought was excessive, etc., this, by appropriate motion. He may also
claim damages on account of the wrongful attachment through an
appropriate pleading, such as a counterclaim, or other form of appli-
cation. W h a t is important is that the "application must be filed
before the trial or before appeal is perfected or before the judgment
becomes executory, with due notice to the attaching creditor and his
62
surety or sureties, setting forth the facts showing his right to dam-
22
ages and the amount thereof."
8 . A p p l i c a t i o n M a y b e M a d e i n the C o u r t o f A p p e a l s
W h e r e a w r i t of attachment was declared illegal, the defendant

against w h o m it was issued may file his claim for damages in the
Court of Appeals before the latter decides the appeal on the merits.
T h e Court of Appeals must hear the motion and not dismiss the
appeal for not filing appellants' brief whose deferment was re-
23
quested.
W h e r e the Trial Court's decision had gone against the defend-

ants, and no irregularity had been adjudged as regards the prelimi-
nary attachment, the latter obviously had no occasion to apply for
damages from wrongful attachment although they could have so
applied therefor because, as already pointed out, it is entirely possi-
ble under the l a w that an applicant for preliminary attachment be
adjudged entitled to relief on his basic claim and at the same time
pronounced as not entitled to the attachment.
As things turned out, the Trial Court's judgment was reversed

by the Court of Appeals; the latter dismissed the complaint, declared
the plaintiff not entitled to the attachment and sentenced it to pay
to the defendants damages on account thereof. A n d it was only at
this time that the defendants could have presented and did actually
present their petition to enforce the surety's liability on its bond.
T h e petition was correctly referred by the Court of Appeals to the
Trial Court with instructions "to hear and decide x x x" pursuant to
Section 20, Rule 57 of the Rules of Court. Under the circumstances,
and in the light of the explicit provisions of said Section 20, Rule 57,
there can be no debate about the seasonableness of the defendants'
application for damages and the correctness of the referral by the
Court of Appeals of the application for damages to the Trial Court
24
for hearing and determination.
22
T h e Philippine Charter Insurance Corp. v. Court of Appeals, supra.
23
H a n i l Development Co. v. I A C , 144 S C R 557; See also concurring opinion of
Justice Antonio in Malayan Insurance v. Salas, 90 S C R A 252.
^The Philippine Charter Insurance Corp. v. Court of Appeals, supra.
63
V O L . III
9. All Damages during Trial a n d Pendency of A p p e a l

M a y be Recovered
Under the circumstances, too, there can be no gainsaying the
surety's full awareness of its undertakings under its bond: that, as
the law puts it: "the plaintiff will pay all costs which may be ad-
judged to the defendant(s), and all damages which may be sustained
by reason of the attachment, if the same shall finally be adjudged to
have been wrongful and without cause," and that those damages
plainly comprehended not only those sustained during the trial of
the action but also those during the pendency of the appeal. This is
the law, and this is how the surety's liability may be enforced whether
the application for damages for wrongful attachment be submitted
in the original proceedings before the Trial Court, or on appeal, so
long as the judgment has not become executory. T h e surety's liabil-
ity is not and cannot be limited to the damages caused by the im-
proper attachment only during the pendency of the appeal. T h a t
would be absurd. The plain and patent intendment of the l a w is that
the surety shall answer for all damages that the party m a y suffer as
a result of the illicit attachment, for all the time that the attachment
was in force; from levy to dissolution. T h e fact that the attachment
was initially (and erroneously) deemed correct by the Trial Court,
and it was only on appeal that it was pronounced improper, cannot
restrict recovery on the bond only to such damages as might have
been sustained during the appeal. T h e declaration by the appellate
court that the applicant for attachment "was not entitled thereto,"
signifies that the attachment should not have issued in the first place,
that somehow the Trial Court had been misled into issuing the w r i t
although no proper ground existed therefor. T h e logical and inevita-
ble conclusion is that the applicant for attachment and the surety on
the attachment bond are solidarity liable for all the damages suf-
fered by the party against whom the w r i t is enforced, except only
that the surety's liability is limited to the amount set forth in its
25
bond.
The fact that the second paragraph of the rule speaks only of
"damages sustained during the pendency of the appeal" is of no
moment; it obviously proceeds from the assumption in the first para-
graph that the award for the damages suffered during the pendency
of the case in the trial court was in fact "included in the final judg-
25
Supra.
64
merit" (or applied for therein before the appeal was perfected or the
judgment became executory); hence, it states that the damages ad-
ditionally suffered thereafter, i.e., during the pendency of the ap-
peal, should be claimed before the judgment of the appellate tribu-
nal becomes executory. It however bears repeating that where, the
judgment of the Trial Court has expressly or impliedly sustained the
attachment and thus has given rise to no occasion to speak of, much
less, file an application for damages for wrongful attachment, and it
is only in the decision of the Court of Appeals that the attachment is
declared wrongful and that the applicant "was not entitled thereto,"
the rule is, as it should be, that it is entirely proper at this time for
the application for damages for such wrongful attachment to be filed
i.e., for all the damages sustained thereby, during all the time
that it was in force, not only during the pendency of the appeal. A n d
the application must be filed "with notice to the party in whose favor
the attachment was issued or his surety or sureties, before the judg-
ment of the appellate court may resolve the application itself or
26
allow it "to be heard and decided by the trial court."
10. M e a s u r e of D a m a g e s
a. It is not the value of property attached but the extent of
actual damages that is the measure of damages.
b. If the property levied upon remained in possession of de-
fendant, depreciation, deterioration or damage must be borne by
him and cannot be charged to the plaintiff.
d. Attorney's fees for service rendered in securing the re-
lease of the property cannot be allowed.
e. Surety is not answerable for all costs and damages ad-
judged against its principal in excess of that adjudged in the deci-
27
sion.
f. E v e n if in good faith liability for damages is there. If there
28
is bad faith moral damages may be awarded.
g. In order that moral damages may be recovered in connec-
tion with the writ of attachment under consideration, malice is an
^ h e Philippine Charter Insurance Corp. v. Court of Appeals, supra.

27
Zenith Insurance Corp. v. C A , 119 S C R A 485.
^Calderon v. I A C , 155 S C R A 531 (1987); BA Finance Corporation v. C A , G.R.
No. 61464, M a y 28, 1988,161 S C R A 608.
65
V O L . III
29
essential ingredient thereof. However, malice or lack of good faith
30
is not an element of recovery on the bond.
h. The damages against the bond includes exemplary dam-
31
ages and attorney's fees.
Note, however that under the last paragraph of the Rule "Noth-
ing herein contained shall prevent the party against whom the at-
tachment was issued from recovering in the same action the dam-
ages awarded to him from any property of the attaching party not
exempt from execution should the bond or deposit given by the latter
be insufficient or fail to satisfy the award" which indicates that
damages larger than the amount of the bond may be awarded.
W h e n Damages m a y be granted for issuance of w r i t of

p r e l i m i n a r y attachment
Lazatin v. Twano and Castro, 112 Phil. 733 (1961), reiterated
32
in MC Engineering v. Court of Appeals, held that actual or compen-
satory damages may be recovered for wrongful, though not mali-
cious, attachment. Lazatin also held that attorney's fees m a y be
recovered under Article 2208 of the Civil Code. However, inasmuch
as a preliminary attachment is an available ancillary remedy under
the rules, a penalty cannot be meted out for the enforcement of a
right. Proof of bad faith or malice in obtaining a w r i t of attachment
need be proved only in the claim for damages on account of the
issuance of the writ.
Where the plaintiff is entitled to a w r i t of preliminary attach-

ment as a provisional remedy by which the property of the defend-
ant is taken into custody of the l a w as a security for the satisfaction
of any judgment which the plaintiff m a y recover. T h e latter w i l l pay
all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, but the
court did adjudge that the applicant was not entitled thereto the
33
adverse party must bear its own damages as a result thereof.
^Lazatin v. Twano, 2 S C R A 842.

30
Aquino v. Socorro, 35 S C R A 374.
31
Stronghold Insurance v. Court of Appeals, M a y 5, 1992, 208 S C R A 336.
32
380 S C R A 116 (2002).
^ D . M . Wenceslao and Associates v. Readycon Trading and Construction Corp.,
G.R. N o . 1541106, 433 S C R A 251, June 29, 2004.
66
RULE 58
PRELIMINARY INJUNCTION
S E C T I O N 1. Preliminary injunction defined; classes. A

p r e l i m i n a r y i n j u n c t i o n i s a n o r d e r g r a n t e d a t a n y stage o f a n
action o r p r o c e e d i n g p r i o r t o the j u d g m e n t o r f i n a l order,
r e q u i r i n g a p a r t y or a c o u r t , a g e n c y or a p e r s o n to r e f r a i n
from a p a r t i c u l a r act or acts. It m a y a l s o r e q u i r e the per-
f o r m a n c e of a p a r t i c u l a r act or acts, in w h i c h case it shall be
k n o w n a s a p r e l i m i n a r y m a n d a t o r y injunction, ( l a )
COMMENT:
T h e present rule is broader in scope. Unlike the former rule

which limits its issuance in an action to a person, the present Rule
included "proceedings" and "a party or a court, agency." Preliminary
injunction is thus defined as an order granted at any stage of an
action or p r o c e e d i n g prior to the judgment or final order, requiring
a p a r t y or a court, a g e n c y or a person to refrain from a particular
act or acts. It may also require the performance of a particular act or
acts, in which case it shall be known as a preliminary mandatory
injunction.
2. Notes and Cases

a. K i n d s of P r e l i m i n a r y I n j u n c t i o n T h e r e a r e gen-
e r a l l y t w o k i n d s o f p r e l i m i n a r y injunction
1. Prohibitory commands a party to refrain from a
particular act.
2. Mandatory commands the performance of some
positive act to correct a wrong in the past.
67
Sec. 1
V O L . III
b. Distinguished f r o m P r o h i b i t i o n a n d M a n d a m u s
1. Injunction is directed only to the parties litigant, etc.
2. Prohibition is directed to a court, commanding it to
cease from exercising a jurisdiction to which it has no legal
claim.
3. Mandamus is a remedial writ to redress past griev-
1
ances.
c. Injunction, P r e l i m i n a r y I n j u n c t i o n , a n d T e m p o r a r y
Restraining O r d e r Distinguished
Injunction is a judicial writ, process or proceeding whereby a

party is ordered to do or refrain from doing a certain act. It m a y be
the main action or merely a provisional remedy for and as an inci-
dent in the main action.
The main action for injunction is distinct from the provisional

or ancillary remedy of preliminary injunction which cannot exist
except only as part or an incident of an independent action or pro-
ceeding. As a matter of course, in an action for injunction, the auxil-
iary remedy of preliminary injunction, whether prohibitory or man-
datory, may issue. Under the law, the main action for injunction
seeks a judgment embodying a final injunction which is distinct
from, and should not be confused with, the provisional remedy of
preliminary injunction, the sole object of which is to preserve the
status quo until the merits can be heard. A preliminary injunction is
granted at any stage of an action or proceeding prior to the judg-
ment or final order. It persists until it is dissolved or until the termi-
nation of the action without the court issuing a final injunction.
A restraining order, on the other hand, is issued to preserve the

status quo until the hearing of the application for preliminary in-
junction which cannot be issued ex parte. U n d e r Rule 58 of the Rules
of Court, a judge may issue a temporary restraining order with a
limited life of twenty (20) days from date of issue. If before the
expiration of the twenty (20)-day period the application for prelimi-
nary injunction is denied, the temporary restraining order would be
*3 MORAN, p. 55, 1963 Ed.
68
Rule 58 PRELIMINARY INJUNCTION Sec. 1
deemed automatically vacated. If no action is taken by the judge on

the application for preliminary injunction within the said twenty
(20) days, the temporary restraining order would automatically ex-
pire on the 20th day by the sheer force of law, no judicial declaration
2
to that effect being necessary.
d. Purpose
A preliminary injunction is a provisional remedy that a party

m a y resort to in order to preserve and protect certain rights and
interests during the pendency of an action. It is issued to preserve
the status quo ante the last actual, peaceful, and uncontested status
that preceded the actual controversy.
L i k e w i s e , in Paramount Insurance v. CA, the Court held that

"Conjunction is an extraordinary remedy calculated to preserve the
status quo of things and to prevent actual or threatened acts violative
of the rules of equity and good conscience as would consequently
afford an injured party a cause of action resulting from the failure of
the law to provide for an adequate or complete relief x x x. Its sole
purpose is not to correct a wrong of the past, in the sense of redress
for injury already sustained, but to prevent further injury."
T h e purpose of a preliminary injunction, then, is "to prevent

threatened or continuous irremediable injury to some of the parties
before their claims can be thoroughly studied and adjudicated. Its
sole aim to preserve the status quo until the merits of the case can
be heard fully." Thus, it will be issued only upon a showing of a clear
and unmistakable right that is violated. Moreover, an urgent and
permanent necessity for its issuance must be shown by the appli-
3
cant.
T h e purpose of injunction is to prevent future injury and main-

tain the status quo the last actual, peaceable, uncontested status
2
Bacolod City Water District v. Labayan, G.R. N o . 157494, December 10, 2004,
446 S C R A 110.
3
First Global Realty and Development Corporation v. Christopher San Agustin,
G.R. N o . 144499, February 19, 2002, 377 S C R A 341; See also Tayag v. Lacson, 426
S C R A 282, March 25, 2004; See also Mabayo Farms, Inc. v. Court of Appeals, 386
S C R A 110, August 1, 2002; Cortez-Estrada v. Samat, G.R. No. 154407, February 14,
2005; Estares v. Court of Appeals, G.R. N o . 144755, January 8, 2005.
69
V O L . III
4
which preceded the pending controversy, until the merits can be
5
heard.
6
Suspension of orders is equivalent to injunction.
A writ of preliminary injunction, as an ancillary or preventive

remedy may only be resorted to by a litigant to protect or preserve
his rights or interest and for no other purpose during the pendency
7
of the principal action.
The propriety of the issuance of a restraining order and the

writ of preliminary injunction is but a mere incident to the actual
controversy which is rooted in the assertion of the conflicting rights
8
of the parties.
It is not a cause of action in itself but merely a provisional

remedy, an adjunct to a main suit. Thus, a person who is not a party
in the main suit cannot be bound by an ancillary writ. He cannot be
9
affected by any proceeding to which he is a stranger.
d. M e a n i n g o f Status Q u o
The last actual, peaceable, uncontested status which preceded

the pending the last actual, peaceable, uncontested status which
10
preceded the pending controversy.
4
Rivera v. Florendo, 144 S C R A 643; Knecht v. Court of Appeals, 228 S C R A 1
(1993).
5
Phil. Virginia Tobacco Administration v. delos Angeles, 164 S C R A 543 (1988);
Sabalones v. C A , 230 S C R A 79, Feb. 14, 1994; Searth Commodities Corp. v. Court of
Appeals, 207 S C R A 622 (1992); See also Tayag v. Lacson, 426 S C R A 282, March 25,
2004; Rualo v. Pitargue, G.R. N o . 140224, January 21, 2005.
Philippine National Bank v. Adil, 118 S C R A 110.
7
Bengzon v. Court of Appeals, 161 S C R A 745, 31 M a y 1988.
8
Filstream v. Court of Appeals, 284 S C R A 716, 731 (1998), cited in Estate of
Heirs of the Late Justice Jose B . L . Reyes v. City of Manila, 422 S C R A 551, February
13, 2004; See also Estares v. Court of Appeals, G.R. N o . 144755, February 8, 2005.
9
Mabayo Farms, Inc. v. Hon. Court of Appeals, August 1, 2002, 386 S C R A 110,
citing Mataguina Integrated Wood Products, Inc. v. Court of Appeals, 263 S C R A 490,
505-506 (1996).
10
Note 3, Rivera v. Florendo, supra.
70
e. Distinction B e t w e e n Status Q u o i n P r o h i b i t o r y a n d
Mandatory Injunction
In a prohibitory injunction, the specific act sought to be en-

joined has not yet been performed, and is one alleged to be illegal, by
the pleader. It is enjoined because it would cause irreparable injury
if allowed to be committed to the prejudice of the party asking for
the issuance of the injunction. T h e situation before the issuance of
the prohibitory injunction is thus preserved in status quo. The sta-
tus quo to be restored in the case of a mandatory injunction is the
situation in which the pleader is before the act already committed
11
and complained of.
S E C . 2. Who may grant preliminary injunction. A p r e -

l i m i n a r y i n j u n c t i o n m a y b e g r a n t e d b y the c o u r t w h e r e the
action o r p r o c e e d i n g i s p e n d i n g . I f the action o r p r o c e e d i n g
i s p e n d i n g i n the C o u r t o f A p p e a l s o r i n the S u p r e m e C o u r t ,
i t m a y b e i s s u e d b y s a i d c o u r t o r a n y m e m b e r thereof. (2a)
COMMENT:
Taken from Section 2 of the former Rule which reads:
SEC. 2. Who may grant preliminary injunction. A prelimi-

nary injunction may be granted by the judge of any court in which
the action is pending, or by a Justice of the Court of Appeals or of the
Supreme Court. It may also be granted by the judge of a Court of
First Instance in any action pending in an inferior court within his
district.
T h e last sentence have been deleted.
Under the present Rule, "A preliminary injunction may be
granted O N L Y by the court where the action or proceeding is pend-
ing. This includes the M T C . If the action or proceeding is pending in
"Feranil v. Arcilla, 88 S C R A 770-772.
71
V O L . III
the Court of Appeals or in the Supreme Court, it may be issued by

said court or any member thereof."
a. Territorial Limitations in I s s u a n c e of Injunctions
Injunctions issued by the Regional Trial Courts are limited to

acts committed or to be committed within territorial jurisdiction.
Doctrine is, however, limited to prohibitory and injunctive writs.
Section 21 of BP 129 reads: "Original jurisdiction in other cases

Regional Trial Courts shall exercise original jurisdiction ( 1 ) in the
issuance of writs of certiorari, prohibition, mandamus, quo war-
ranto, habeas corpus and injunction which may be enforced in any
part of their respective regions."
b. Issuance a n d Enforceability Distinguished
1. N o n - J u r i s d i c t i o n to I s s u e W r i t B e y o n d Court's Ter-
ritorial J u r i s d i c t i o n
Section 21 of BP 129 has broadened the territorial enforceabil-

ity of the writ from district or province to region. This is because the
Reorganization A c t of 1980 abolished Judicial districts and created
in lieu thereof Judicial Regions. BP 129 is more categorical in ex-
pressing that the writs may be enforced in their respective regions.
The doctrine of non-jurisdiction is limited merely to injunctive or
1
prohibitory writs. Thus, in referring to the cases of, which uniformly
laid down the doctrine of non-jurisdiction of Courts to issue writs
outside of their jurisdiction, the Supreme Court in Macailing v.
2
Andrada, stressed that in the said cases injunctive or prohibitory
writs are involved.
T h e jurisdiction or authority of the regional trial courts to con-

trol or restrain acts by means of the w r i t of injunction is limited only
to acts which are being committed within the territorial boundaries
^ a s t a n o v. Lobingier, 7 Phil. 91; Samar Mining Co., Inc. v. Arnaldo, 2 S C R A

782; Hacbang v. Leyte Autobus Co., Inc., 8 S C R A 103; A l h a m b r a Cigar and Cigarette
Mfg. Co., Inc. v. National Administrator of Regional Office N o . 2, 14 S C R A 1019, and
People v. Mencias, 18 S C R A 807.
2
31 S C R A 126.
72
of their respective regions except where the sole issue is the legality
3
of the decision of the administrative officials.
2. W h e r e Sole I s s u e Is legality of A d m i n i s t r a t i v e Deci-

sion
Elsewise stated, the doctrine in support of the theory of non-

jurisdiction is inapplicable, in those cases which involved petition
for writs of injunction seeking to control the actions of courts or
officers outside the territorial jurisdiction of the respondent courts.
W h e r e the sole issue in court is the legality of the decision of ad-
ministrative officials, a different rule obtains. In such a case, the
power of judicial review should not be confined to the regional trial
court of the locality where the offices of respondents are maintained,
to the exclusion of the regional trial courts in those localities where
the plaintiffs reside, and where the questioned decisions are being
4
enforced.
3. P o w e r Exists E v e n if P e r s o n W h o Issued O r d e r
H o l d s Office O u t s i d e o f Court's J u r i s d i c t i o n
W h i l e the jurisdiction of the regional trial courts to restrain

acts by means of injunction is limited to acts committed or about to
be committed within the territorial boundaries of their respective
5
provinces or districts, the power exists even if the person or officer
who issued the order sought to be restrained holds office in a place
6
outside of its territorial boundaries. T h e following pronouncement
1
in Decano v. Edu, is instructive:
"In seeking reversal of the trial court's decision respondents

make capital of the fact that the petition for mandamus with injunc-
tion was filed in the Court of First Instance of Pangasinan while
respondent Edu holds office in Quezon City which, they claim, is
3
L i a n g a Bay Logging Co., Inc. v. Lopez Enaje, id., citing Director of Forestry v.
Ruiz, 38 S C R A 559, citing Palanan Lumber & Plywood Co., Inc., 22 S C R A 1186.
4
L i a n g a Bay Logging Co., Inc. v. Lopez Enaje, id., citing Director of Forestry v.
Ruiz, 38 S C R A 559, citing Palanan Lumber & Plywood Co., Inc., 22 S C R A 1186.
5
City of Davao v. De los Angeles, 77 S C R A 129; Olongapo Electric Light and
Power Corporation v. N P C , 149 S C R A 153, April 9,1987; Gomos v. Judge Adiong, A . M .
N o . RTJ-1863, October 22, 2004.
6
Director of Bureau of Telecom v. Aligaen, 33 S C R A 368; Decano v. Edu, 99
S C R A 410.
7
99 S C R A 410.
73
V O L . III
beyond the territorial jurisdiction of the said court. Respondents cite

8
the long line of cases from the 1960 case of Acosta v. Alvendia where
this Court, pursuant to Sec. 44(h) of the Judiciary Act, jointly or
alternatively with Sec. 4, Rule 65 of the Rules of Court and/or Sec-
tion 2 of Rule 58, ruled that a court of first instance has no jurisdic-
tion to require or control the execution of an act committed beyond
the limits of its territorial jurisdiction. These cases invariably in-
volved petitions for writs of injunction seeking to control the actions
of courts or officers outside the territorial jurisdiction of the re-
spondent courts of first instance where said petitions had been filed.
The Acosta ruling of non-jurisdiction does not apply, however, to the
facts and circumstances at bar."
"Here, petitioner seeks primarily the annulment of the dis-

missal order issued by Ci, and what is prayed to be enjoined, as in
fact the trial court did enjoin by preliminary injunction, is the imple-
mentation of the termination order against the petitioner. It is true
that the order of dismissal was issued by respondent Edu, but it was
to be implemented in Dagupan City. Insofar, therefore, as respond-
ent Edu is concerned, the order terminating the services of respond-
ent was accomplished and this he had done without authority, as
earlier discussed. The injunction in question, consequently, must be
taken only to restrain the implementation of respondent Edu's order
by his co-respondent whose official station at Dagupan City is within
the territorial boundaries of the trial court's jurisdictional district."
(pp. 416-417).
Further, quoted in Edu is the doctrine in Director of the Bureau

9
of Telecommunications v. Aligaen, et al., pertinent portion of which
reads:
"x x x In case of Gonzales v. Secretary of Public Works, et

10
al., wherein the only question raised was whether the Court
of First Instance of Davao had jurisdiction to entertain a case
the main purpose of which was to prevent the enforcement of a
decision of the Secretary of Public Works who was in Manila,
this Court held that, inasmuch as the acts sought to be
restrained were to be performed within the territorial
8
Citations omitted.
9
33 S C R A 368.
10
G . R . N o . L-21988, September 30, 1966, 18 S C R A 296.
74
boundaries of the province of Davao, the Court of First

Instance of Davao had jurisdiction to hear and decide
the case, and to issue the necessary injunction order. This
Gonzales case was an action for certiorari and prohibition with
preliminary injunction and/or preliminary mandatory injunc-
tion to prevent the demolition of Gonzales' dam in Davao in
compliance with the order of the Secretary of Public Works.
(Underscoring Supplied.)
"It follows, therefore, that since the acts to be restrained

w e r e being done in Roxas City, or within the territorial juris-
diction of respondent court, the latter had jurisdiction to re-
strain said acts even if the office of respondent Director of the
Bureau of Telecommunications is in Manila, and that of re-
11
spondent Regional Superintendent of Region IV in Iloilo City."
On the other hand, where the principal office of the corporation

is within the court's territorial jurisdiction, the writ may issue even
if the act sought to be restrained is to be carried outside of its
jurisdiction.
12
Thus, in Dagupan Electric Co. v. Pao and Carmelita Limjap
13
v. Animas, it was held that where the principal officials of the
corporation who have direct supervision and control of the acts sought
to be restrained have their principal office within the territorial
jurisdiction of the court issuing the injunction and that their official
orders, the acts sought to be restrained are deemed to be within the
issuing court's territory, which has jurisdiction to issue the writ of
preliminary injunction.
T h e Rule on Special Civil Actions

Under Section 4 of the 1997 Rules of Civil Procedure, the peti-
tion for the special civil actions of certiorari, prohibition and
mandamus shall be filed in the Supreme Court or, if it relates to the
acts of omissions of a lower court or of a corporation, board, officer of
person, in the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed
n
P . 418.
12
95 S C R A 693.
13
134 S C R A 87.
75
V O L . III
in the Court of Appeals whether or not the same is in aid of its

appellate jurisdiction, in the Sandiganbayan, if in aid of its appel-
late jurisdiction. If it involved the acts or omissions of a quasi-judi-
cial agency, unless otherwise provided by law or these rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
c. Injunctions to R e s t r a i n E x t r a j u d i c i a l F o r e c l o s u r e
Involving Several Parcel Located in Different Provinces
Separate injunction suits may be filed for breach of mortgage
contract with injunction to restrain extrajudicial foreclosure pro-
ceedings of mortgaged properties located in different provinces with-
out violating the rule against forum shopping since injunction is
enforceable only within the territorial limits of the trial court, thus,
the mortgagor is left without remedy as to the properties located
outside the jurisdiction of the issuing court unless an application for
injunction is made with another court which has jurisdiction over
14
the latter court.
d. A u t h o r i t y of A n y M e m b e r of the C o u r t to I s s u e a
TRO
While, any member of the Court of Appeals m a y issue prelimi-

nary injunction or temporary restraining order, this power is exer-
cised only in case of extreme urgency and in the tradition of the
Supreme Court, the Court en banc or division ratifies or confirm the
15
act of the single justice at the v e r y next session of the Court.
e. A c t i o n s by a Justice
Conformably therewith the Internal Rules of the Court of A p -

peals provides:
S E C . 2. Action by the Presiding Justice. When a petition

involves an urgent matter, such as an application for writ of habeas
corpus or temporary restraining order, and there is no way of convening
the Raffle Committee or calling any of its members, the Presiding
Justice or the Executive Justice, as the case may be or in their
absence, the most senior Justice present may conduct the raffle
14
B e n g u e t M a n a g e m e n t Corporation v. Court of A p p e a l s , 411 S C R A 347,
September 18, 2003.
15
Heirs of the Late Justice Jose B . L . Reyes v. Court of Appeals, 338 S C R A 282.
76
or act on the petition, subject to raffle on the next working day in

16
accordance with Rule III hereof (n)
S E C . 5. Action by a Justice. All members of the Division

shall act upon an application for a temporary restraining order and
writ of preliminary injunction. However, if the matter is of extreme
urgency, and a Justice is absent, the two other justices shall act upon
the application. If only the ponente is present, then he shall act alone
upon the application. The action of the two Justices or of the ponente
shall however be submitted on the next working day to the absent
member or members of the Division for ratification, modification or
17
recall.
S E C . 3. Grounds for issuance of preliminary injunction.

A p r e l i m i n a r y i n j u n c t i o n m a y be g r a n t e d w h e n it is estab-
lished:
( a ) T h a t the a p p l i c a n t is entitled to the relief d e m a n d e d ,

a n d the w h o l e o r p a r t o f s u c h r e l i e f consists i n r e s t r a i n i n g
the c o m m i s s i o n or c o n t i n u a n c e of the act or acts c o m p l a i n e d
of, or in r e q u i r i n g the p e r f o r m a n c e of an act or acts, either
f o r a l i m i t e d p e r i o d or p e r p e t u a l l y ;
( b ) T h a t the commission, c o n t i n u a n c e o r n o n - p e r f o r m -
a n c e of the act or acts c o m p l a i n e d of d u r i n g the litigation
w o u l d p r o b a b l y w o r k injustice t o the applicant; o r
( c ) T h a t a p a r t y , c o u r t , a g e n c y or a p e r s o n is doing,
t h r e a t e n i n g , or is a t t e m p t i n g to d o , or is p r o c u r i n g or suffer-
i n g to be d o n e , s o m e act or acts p r o b a b l y in violation of the
r i g h t s of the a p p l i c a n t r e s p e c t i n g the subject of the action or
p r o c e e d i n g , a n d t e n d i n g t o r e n d e r the j u d g m e n t ineffectual.
(3a)
COMMENT:
The phrase that preliminary injunction may be granted at any
time after the commencement of the action and before judgment,
16
Rule IV, I R C A as amended by A . M . N o . 02-6-13-CA.
17
Rule V I , I R C A .
77
V O L . III
was deleted as a surplusage. The opening statement in sub. par. (c)

that the "defendant" was changed to "a party, court, agency or a
person" threatens, or is about to do, replaced with "threatening, or is
attempting to do."
Non-performance of the act or acts complained of has been
added in paragraph (b) so that preliminary mandatory injunction
may apply. (Feria)
I. PROPRIETY OF ISSUANCE OF PRELIMINARY IN-

JUNCTION
A. THERE MUST BE PRINCIPAL A C T I O N

1. I n d e p e n d e n t A c t i o n M e r e l y to O b t a i n P r e l i m i n a r y
Injunction is not A l l o w e d
An independent action cannot be maintained merely to procure
preliminary injunction some substantive relief must be sought.
Preliminary Injunction is a mere provisional remedy and adjunct to
the main suit. The dismissal of the principal action thus results in
1
the denial of the prayer for the issuance of the w r i t .
A writ of preliminary injunction, as an ancillary preventive

remedy may only be resorted to by a litigant to protect or preserve
his rights or interest and for no other purpose during the pendency
2
of the principal action.
2. Reason for P o w e r of C o u r t to Issue P r e l i m i n a r y In-

junction
The controlling reason for the existence of the judicial power to

issue the writ is that the court may thereby prevent a threatened or
continuous irremediable injury to some of the parties before their
claims can be thoroughly investigated and advisedly adjudicated. It
is to be resorted only when there is a pressing necessity to avoid
Philippine National Bank v. Ritratto Group, Inc., 362 S C R A 2 1 6 , July 31,2001.

2
Bengzon v. Court of Appeals, 161 S C R A 745, M a y 31, 1988; Cootauco v. Court
of Appeals, S C R A 124, June 16,1988. See also Allied Domecq Phils., Inc. v. Villon, G.R.
No. 152264, September 30, 2004, 439 S C R A 667.
78
injurious consequences which cannot be remedied under any stand-

ard of compensation.
For instance, had no injunction been issued petitioner would

have rescinded the sale and sold the property to other parties, and
private respondents would have lost what they have paid to peti-
tioner and any right they m a y have acquired over the property even
without the benefit of a trial. T h e complaint of respondent spouses
would have been rendered moot and academic as the property would
be in possession of an innocent purchaser for value and private
respondents would be powerless to recover the same. Such situation
3
cannot be countenanced.
B. ESSENTIAL REQUISITES FOR ISSUANCE OF PRELIMI-

NARY INJUNCTION
1. U n d e r this rule, a clear and positive right especially call-

ing for judicial protection must be shown. Injunction is not a remedy
to protect or enforce contingent, abstract, or future rights.
T h e existence of a right violated is a prerequisite to the grant-

ing of an injunction, and a permanent one should not be awarded
except in a clear case of, and to prevent an irreparable injury.
" A n injunction w i l l not issue to protect a right not in esse and

which may never arise or to restrain an act which does not give rise
4
to a cause of action. There must exist an actual right.
2. There must be proof of violation of an actually existing

right otherwise it is merely damnum absque injuria. Before a writ of
preliminary injunction may be issued, there must be a clear showing
by the complaint of the following:
a There must be a right in esse or the existence of a
right to be protected.
development Bank of the Phils, v. C A , 344 S C R A 492, October 30, 2000; See
also Light Rail Transit Authority v. Court of Appeals, G.R. Nos. 139275-76, and 1409949,
November 25, 2004; See also Estares v. Court of Appeals, G.R. No. 144755, June 8,
2005.
4Republic of the Philippines v. Villarama, 278 S C R A 736, September 5, 1997;
See also Buayan v. Quintillan, 128 S C R A 276; Medina v. Greenfield Development Cor-
poration, G.R. N o . 140228, November 19, 2004.
79
V O L . III
b. The act against which the injunction is to be di-

5
rected is a violation of such right.
C. ISSUANCE OF I N J U N C T I O N S TO BE A V O I D E D TO DIS-
POSE OF MERITS
The prevailing rule is that courts should avoid issuing a w r i t of
preliminary injunction which would in effect dispose of the main
6
case without trial. Thus, if the lower court issued the desired writ
to enjoin the sale of the properties premised on the justification of
the petitioners, the issuance of the writ would be a virtual acceptance
7
of their claim that the foreclosure sale is null and void. There would
in effect be a prejudgment of the main case and a reversal of the rule
on the burden of proof since it would assume the proposition which
8
the petitioners are inceptively bound to prove.
Where a complaint for damages with injunction was filed against

persons who claim to be tenants, tillers or cultivators of the land and
the plaintiffs manifested that they are w i l l i n g to leave the tenants
undisturbed until their rights as such shall have been determined in
the proper forum, it was grave abuse of discretion of the trial court
to deny the defendant's prayer for the issuance of a w r i t of prelimi-
5
Buayan Cattle Co. v. Quintillian, 128 S C R A 276; Sales v. Securities and Ex-
change Commission, 169 S C R A 109,13 Jan. 1989; National Power Corporation v. Vera,
170 S C R A 721,27 Feb. 1989; Searth Commodities Corp. v. Court of Appeals, 207 S C R A
622 (1992); Saulog v. Court of Appeals, 262 S C R A 51, Sept. 18,1996; Arcega v. Court of
Appeals, 275 S C R A 176, July 7, 1997; Philippine Sinter Corporation and P H I V I D E C
Industrial Authority v. Cagayan Electric Power and Light Co., Inc., 381 S C R A 582,
April 25, 2002; Carino v. Capulong, 222 S C R A 593 (1993); See Viray v. Court of A p -
peals, 191 S C R A 308 (1990); National Power Corporation v. Vera, 170 S C R A 721;
Araneta v. Gatmaitan, 101 Phil. 328 (1957); and North Negros Sugar Company v.
Hidalgo, supra; China Banking Corporation v. Court of Appeals, 265 S C R A 327, Dec.
5, 1996.
6
Rivas v. Securities and Exchange Commission, 190 S C R A 295 (1990); Govern-
ment Service Insurance System v. Florendo, 178 S C R A 76 (1989); and Ortigas and Co.
Ltd. Partnership v. Court of Appeals, 162 S C R A 165 (1988); Searth Commodities Corp.
v. Court of Appeals, 207 S C R A 622 (1992); Medina v. Greenfield Development, G.R.
No. 140228, November 19, 2004; Light Rail Transit Authority v. Court of Appeals, 444
S C R A 125, G.R. Nos. 139275-76 and 1409&49, November 25, 2004 holding that no
court can compel a party to agree to a contract through a preliminary injunction. See
also Cortez-Estrada v. Samut, G.R. N o . 154407, February 4, 2005; Rualo v. Pitargue,
G.R. No. 140284, July 21, 2005.
^>ee Ortigas and Co., Ltd. Partnership v. Court of Appeals, supra.
80
nary injunction and instead ordered them not to cut plaintiffs' plants
in the lot, and to allow plaintiffs to harvest their seasonal crops. In
effect it disposed of the main case without the requisite hearing on
the evidence to be presented. T h e denial order is, for all intents and
purposes an adjudication on the merits of the case, in gross violation
of the constitutional mandate that a party shall have the right to be
9
heard and to present evidence.
T h e object of the w r i t is to preserve the status quo, which is the

last actual peaceable uncontested status that preceded the pending
10
controversy. T h e last actual peaceable uncontested status that pre-
ceded the controversy is that D B P is the owner of the properties in
dispute, the petitioners having failed to redeem them and D B P hav-
ing consolidated its title thereto. As owner of these properties, D B P
has every right to dispose of them. T h e issuance of the writ would no
1
doubt upset, not preserve, the status quo}
W h e r e the w r i t of preliminary mandatory injunction in effect

grants the main prayer in the complaint there is practically nothing
left for the trial court to try except the plaintiff's claim for dam-
12
ages.
D. INJUNCTIONS NOT ISSUED WHERE ACT SOUGHT TO

BE PREVENTED HAD BEEN COMMITTED/CONSUM-
MATED ACTS
An injunction suit becomes moot and academic after the act

13
sought to be enjoined had already been consummated. A prohibi-
tory injunction cannot be issued when the act sought to be enjoined
14
has already been committed.
T h e remedy of injunction could no longer be availed of where
the act to be prevented had long been consummated. Where a span of
9
Bataclan v. Court of Appeals, supra.
10
Rivas v. Securities and Exchange Commission, Supra; Bengzon v. Court of
Appeals, 161 S C R A 745 (1988); Rodulfa v. Alonso, 76 Phil. 225 (1946).
"Searth Commodities Corp. v. Court of Appeals, 207 S C R A 622 (1992).
12
Ortigas and Co. v. C A , 162 S C R A 165 (1988).
l 8
P C I B v. N A M A W U , 115 S C R A 837; Romulo v. Yniguez, 141 S C R A 263; Rivera
v. Florendo, 144 S C R A 658.
U
P N B v. Adil, 118 S C R A 110, 117; Ramos, Sr. v. Court of Appeals, 173 SCRA
550, M a y 24,1989.
81
V O L . III
seven years has intervened from the time the award of the lot has
already been accomplished to the time petitioners' complaint for
15
injunction was filed, injunction would just be an exercise in futility.
E. I N J U N C T I O N T O STAY F I N A L A N D E X E C U T O R Y D E -
CISION
An injunction to stay a final and executory decision is unavail-
ing except only after a showing that facts and circumstances exist
which would render execution unjust or inequitable, or that a change
in the situation of the parties occurred. To disturb the final and
executory decision of the E R B in an injunction suit is to brazenly
16
disregard the rule on finality of judgments.
Thus, where the civil case for forcible entry was pending on
appeal before the Regional Trial Court from the M T C C , a Special
Patent was issued which covered the lot subject of the dispute and
by virtue thereof, an Original Certificate of Title in the name of N H A
was issued, the N H A was entitled to the w r i t of injunction to re-
strain enforcement of the ejectment case. W h e n petitioner moved for
the issuance of a writ of execution before the M T C C a certificate of
title had already been issued to N H A . In v i e w of this intervening
development, N H A filed a complaint for quieting of title before the
Regional Trial Court of Cagayan de Oro City. Thus, it was only
proper of the Court of Appeals to direct the Regional Trial Court
where the Civil Case was pending, to grant the w r i t of preliminary
injunction to restrain the enforcement of the decision of the M T C C
as there was material change in the status of the parties with regard
to the said land. Clearly, the government, through the N H A will be
prejudiced by the impending enforcement of the decision in the Civil
Case which directs the said agency to restore the members of peti-
17
tioners to their respective possession on portions of L o t N o . 1982.
The writ of injunction should issue so as not to render moot and

academic any decision which the Regional Trial Court in Civil Case
15
Meliton Zabat and Marylou Zabat v. C A , 338 S C R A 551, August 23, 2000, J.
Quisumbing.
16
Camarines Norte Electric Cooperative, Inc. v. Torres, 286 SCRA666,681 (1998);
Philippine Sinter Corporation and P H I V I D E C Industrial Authority v. Cagayan Elec-
tric Power and Light Co., Inc., 381 S C R A 582, April 25, 2002, J. Sandoval-Gutierrez.
17
C a g a y a n de Oro City Landless Residents Asso., Inc. v. C A , 254 S C R A 229.
82
N o . 90-337 will render and in order to prevent any irreparable in-

j u r y which respondent may sustain by virtue of the enforcement of
1 8
the decision of the M T C C .
F. NO INJUNCTION BEYOND PRAYER IN COMPLAINT
A foreign corporation doing business in the Philippines without

19
a license is not entitled to injunctive relief.
Courts should not issue orders or injunctions beyond those

20
prayed for in the complaint.
3. Injunction N o t Designed to Protect Contingent or

Future Rights
Thus, injunction, whether preliminary or final, is not designed

to protect contingent or future rights. An injunction will not issue to
protect a right not in esse and which may never arise, or to restrain
an act which does not give rise to a cause of action. T h e possibility of
irreparable damage, without proof of violation of an actual existing
right, is no ground for an injunction being mere damnum absque
21
injuria.
EFFECT OF PENDENCY OF PROBATE PROCEEDINGS
T h e pendency before the probate court and the estate to deter-

mine the rights or interests over the estate or over the assailed
shareholdings in the name of private respondents are still future
and unsettled rights which cannot be protected by the writ of injunc-
tion. The court in charge of the intestate proceedings cannot adjudi-
cate or determine title to properties claimed to be a part of the estate
and which are equally claimed to belong to outside parties. There-
18
C a g a y a n de Oro City Landless Residents Asso., Inc. v. Court of Appeals, 254
S C R A 232.
19
Hutchinson Ports Philippines Limited v. S B M A , 339 S C R A 434, August 31,
2000.
20The Chief of Staff v. Guadiz, 101 S C R A 827.
21
U l a n g v . Court of Appeals, 225 S C R A 637; Arcega v. Court of Appeal, 275 SCRA
176, July 7, 1997; Heirs of Eugenia Roxas v. I A C , 173 S C R A 581 (1989); M a . Divina
Ortanez-Enderes v. C A , S E C , et al., 321 S C R A 178, December 17, 1999, J. Ynares-
Santiago; Carino v. Capulong, supra.
83
VOL. III
22
Heirs of Eugenia Roxas v. I A C , 173 S C R A 581 (1989); M a . Divina Ortanez-
Enderes v. C A , S E C , et al., 321 S C R A 178, December 17, 1999, J. Ynares-Santiago
23Wrong Siu Tong v. Aquino, 92 Phil. 545, 547-548.
"Carino v. Capulong, supra.
25
Supra.
84
26
the filing of a legal separation; or to prevent a wrongful interfer-
27
ence with contracts by strangers.
SUMMARY OF ESSENTIAL REQUISITES
Summing up: For an injunctive w r i t to be issued, the following

requisites must be proven:
First: T h a t the petitioner applicant must have a clear and un-

mistakable right;
Second: T h a t there is a material and substantial invasion of

such right;
Third: T h a t there is an urgent and permanent necessity for the

28
writ to prevent serious d a m a g e .
illustrative cases:
1. W h e r e the mortgagors admits that they were unable to

settle their obligations which w e r e secured by the mortgage, the
mortgagee have a clear right to foreclose the mortgage which should
29
not be enjoined by a preliminary injunction.
2. In another case, the court held: Respondent bank's right

to possess the property is clear and is based on its right of ownership
as a purchaser of the properties in the foreclosure sale to whom title
30
has been conveyed. U n d e r Section 7 of A c t N o . 3135 and Section 35
of Rule 39, the purchaser in a foreclosure sale is entitled to posses-
31
sion of the property. T h e bank has a better right to possess the
32
subject property because of its title over the same. The Court wrote:
26
Sabalones v. C A , Feb. 14,1994, 230 S C R A 79.
27
Y u v. Court of Appeals, 217 S C R A 328 (1993).
^Hutchinson Ports Philippines Limited v. S B M A , 339 S C R A 434, August 31,
2000; See also Tayag v. Lacson, 426 S C R A 282, March 25, 2004; Cortez-Estrada v.
Samut, G.R. N o . 154407, February 14, 2005.
^China Banking Corporation v. Court of Appeals, supra.
^Philippine National Bank v. C A , 118 S C R A 110, November 2, 1982.
31
Javelosa v. C A , 265 S C R A 493, December 10, 1996.
32
P e r s o n s with Torrens title over land are entitled to possession thereof.
Pangilinan v. Aguilar, 43 S C R A 136 (1972); Sps. Arcega v. C A , 275 S C R A 176, July 7,
1997; See also Auto Corp. Group and Autographies v. Court of Appeals, G.R. No. 157553,
437 S C R A 678, September 8, 2004. See, however, Sulit v. Court of Appeals, 268 S C R A
85
V O L . III
" x x x ( I ) t was highly irregular for the respondent court to issue

the questioned injunction writ based merely on the document of
sheriff's certificate of posting. No other evidence, oral or documen-
tary, was ever presented by the private respondents to fully substan-
tiate their prayer for the injunctive relief. It is well-settled that a
foreclosure proceeding enjo3's the presumption of regularity in its
conduct being an official business, and it is the defendants, herein
private respondents, who have the burden of showing by convincing
proof that the foreclosure proceeding is tainted with irregularity for
them to be entitled to the writ prayed for." A preliminary injunction
is proper only when the plaintiff appears to be entitled to the relief
demanded in his complaint. Injunction, like other equitable rem-
edies, will issue only at the instance of a suitor who has sufficient
interest or title in the right or property sought to be protected.
Hence, for the court to act, there must be an existing basis of facts
affording a present right which is directly threatened by an act
sought to be enjoined. A n d while a clear showing of the right claimed
is necessary, its existence need not be conclusively established. In
fact, the evidence to be submitted to justify preliminary injunction
at the hearing thereof need not be conclusive or complete but need
only be a "sampling intended merely to g i v e the court an idea of the
justification for the preliminary injunction pending the decision of
33
the case on the merits."
5. Not A l l o w e d W h e r e There is Substantial Challenge

to R i g h t
34
In Developer's Group of Companies, Inc. v. Court of Appeals,
despite the fact that plaintiff's claim to the protection of its service
mark S H A N G R I - L A is registered, the Supreme Court refused to
allow the injunction against the use of the name S H A N G R I - L A hold-
ing:
On the other hand, Shangri-La claims that it had instituted

Inter Partes Case N o . 3145 for Cancellation of Registration against
444, February 17, 1997, citing Roxas, et al. v. Buan, et al., 167 S C R A 43 (1988); See
also Capital Credit Dimension, Inc. v. Chua, 428 S C R A 259, April 28, 2004, and cases
cited therein. Holding that the writ of possession cannot be enforced against a third
person in actual possession of the property.
33
Saulog v. Court of Appeals, G.R. N o . 119769, September 18, 1996, 262 S C R A
51; Sps. Arcega v. C A , G.R. N o . 122206, July 7, 1997, 275 S C R A 176.
34
219 S C R A 715 (1993).
86
Developers, on the ground of fraud, and applied for registration of

the service mark and logo in its name in Inter Partes Case N o . 3529,
to protect its claimed rights to the said name and emblem. These
cases were already pending in 1988 before the Bureau of Patents
when the complaint for infringement was filed by Developers in the
Regional Trial Court of Quezon City three years later.
T h e conflicting claims of the parties to the subject service mark

and logo g i v e us the impression that the right claimed by plaintiffs
as its basis for asking for injunctive relief is far from clear. The
prima facie validity of its registration has been put into serious
question by the above-stated cases filed by Shangri-La in the Bu-
reau of Patents three years ahead of the complaint. W h i l e it is not
required that Developer's claimed right be conclusively established
at this stage, it is nevertheless necessary to show, at least tenta-
tively, that it exists and is not vitiated by any substantial challenge
or contradiction, such as has been made by the private respondent.
In our view, the petitioner has failed to comply with this require-
ment.
As for the alleged damages, we find that Developer has not

adduced any evidence of injury, either actual or imminent, resulting
from the acts complained of against Shangri-La. There was no find-
ing of the trial court affirming the claim for damages nor is there
any support for it in the record. In fact, the order dated July 2,1991,
did not state, much less explain, the reasons for the issuance of the
writ of preliminary injunction, simply saying that it appeared "after
hearing that plaintiff is entitled to the relief prayed for." That was
all. But that was not enough.
6. There Must Be Showing of Irreparable Injury

A writ of injunction should never issue when an action for
damages would adequately compensate the injuries caused. The very
foundation of the jurisdiction to issue the writ of injunction rests in
the possibility of irreparable injury, inadequacy of pecuniary com-
pensation and the prevention of the multiplicity of suits, and where
facts are not shown to bring the case within these conditions, the
35
relief of injunction should be refused.
36
Golding v. Balabat, et al., 36 Phil. 941.
87
V O L . III
7. M e a n i n g of I r r e p a r a b l e I n j u r y
Damages are irreparable within the meaning of the rule rela-
tive to the issuance of injunction where there is no standard by
36
which their amount can be measured with reasonable accuracy."
An irreparable injury which a court of equity will enjoin includes
that degree of wrong of a repeated and continuing kind which pro-
duce hurt, inconvenience, or damage that can be estimated only by
37
conjecture, and not by any accurate standard of measurement." An
irreparable injury to authorize an injunction consists of "a serious
charge of, or is destructive to the property it affects, either physi-
cally or in the character in which it has been held and enjoined, or
when the property has some peculiar quality or use, so that its
pecuniary value will not fairly recompense the owner of the loss
38
thereof."
Injury is considered irreparable if it is of such constant and

frequent recurrence that no fair or reasonable redress can be had
therefor in a court of law or/where, there is no standard by which
their amount can be measured with reasonable accuracy, that is, not
39
susceptible of mathematical computation. It is beyond possibility
of repair or beyond possible compensation in damages.
8. Examples
a. Art. 694(2), Civil Code Excessive smoke which may be

harmful to persons or property.
b. W h e r e there is no pecuniary standard by which damages

can be measured.
c. W h e r e defendant induced the owner of a cinematograph

film to break his contract of lease with the owner of a theater to
40
show it at other houses.
9. It has been held that an injury is irreparable where it is

continuous and repeated since from its constant and frequent recur-
36
Crouc v. Central Labor Council, 83 A L R 193.
37
Phipps v. Rogue River Valley Canal Co., 7 A L R 741.
38
D u n k e r v. Field and Tub Club, 92, P. 502; Social Security System v. Bayona, 5
S C R A 126, 130-131 (1962), cited in UP v. Catungal, 272 S C R A 221, M a y 5, 1997.
3 9
P V T A v. Delos Angeles, 164 S C R A 543, August 19, 1988.
40
Gilchrist v. Cuddy, 29 Phil. 542.
88
rence, no fair and reasonable redress can be had therefor by peti-

tioner insofar as his goodwill and business reputation as sole dis-
41
tributor are concerned.
10. N a t u r e of E v i d e n c e
W h i l e the evidence to be submitted at the hearing on the mo-

tion for preliminary injunction need not be conclusive and complete,
there must be a showing, at least tentatively of irreparable injury.
As a preliminary injunction is intended to prevent irreparable in-
jury to the plaintiff, that possibility should be clearly established, if
only provisionally, to justify the restraint of the act complained
against. W h e r e no such injury is shown the issuance of the prelimi-
nary injunction, being utterly without basis, was held to be tainted
42
with grave abuse of discretion that can be corrected on certiorari.
W h i l e merely a sampling of the evidence is required, such evi-

dence must, however, rest on solid grounds and not on mere hearsay
43
or unfounded fears.
11. REQUISITES F O R ISSUANCE OF M A N D A T O R Y IN-

JUNCTION
A mandatory injunction is granted only on a showing that:
1. T h e invasion of the right is material and substantial;
2. T h e right of a complainant is clear and unmistakable;
3. T h e r e is an urgent and permanent necessity for the writ

44
to prevent serious d a m a g e .
Since it commands the performance of an act, a mandatory
injunction does not preserve the status quo and is thus more cau-
45
tiously regarded than a mere prohibitive injunction.
41
Y u v. Court of Appeals, 217 S C R A 328 (1993).
42
Supra; Estares v. Court of Appeals, G.R. No. 144755, June 8, 2005.
43
Syndicated Media Access Corp. v. Court of Appeals, 219 S C R A 794 (1993). See
also Matutina v. P N B , G.R. N o . 165570, Feb. 23, 2006.
44
Pelejo v. C A , 117 S C R A 666; Rivera v. Florendo, supra.
45
Gateway Electronics Corporation v. Land Bank of the Philippines, 407 S C R A
454, July 30, 2003.
89
V O L . III
A mandatory injunction will not issue in favor of a party whose

46
rights are not clear and free of doubt or as yet undetermined.
In a case, the status quo was that existing before the filing of
the complaint. Where the status quo was that the school was al-
ready closed, the writ of preliminary mandatory injunction to resume
and reopen the holding of classes is issued in grave abuse of discre-
tion for it allowed the writ to be used by the plaintiffs to undo the
mischief that they themselves had initiated by refusing to teach,
47
and the students by refusing to attend classes.
II.a R e a s o n f o r Strict R e q u i s i t e s f o r M a n d a t o r y I n j u n c -
tion
A mandatory injunction which commands the performance of

some specific act is regarded as of a more serious nature than a mere
prohibitive injunction, the latter being intended generally to main-
tain the status quo only. W h i l e our courts, being both of l a w and
equity, have jurisdiction to issue a mandatory writ, it has always
been held that its issuance would be justified only in clear cases;
that it is generally improper to issue it before final hearing because
it tends to do more than maintain the status quo; that it should be
issued only where there is a willful and unlawful invasion of plain-
tiff's right and that the latter's case is one free from doubt and
48
dispute.
I I . b N o t To be i s s u e d ex parte; e x c e p t i o n s
A writ of preliminary mandatory injunction does more than to

maintain the status quo and should not issue without hearing E X -
C E P T : ( 1 ) in cases of extreme urgency; ( 2 ) where the right is clear;
(3) where considerations of relative inconvenience bear strongly in
complainant's favor; ( 4 ) where there is a willful and unlawful inva-
sion of plaintiff's right against his protest and remonstrance; ( 5 ) the
4 6 A M A R C O v. Cloribel, 22 S C R A 1038-1039, March 13,1968; Rivera v. Florendo,

144 S C R A 643.
47
Capitol Medical Center, Inc. v. Court of Appeals, 178 S C R A 493, Oct. 13,1989.
48
National Marketing v. Cloribel, 22 S C R A 1038, March 13, 1968; Rivera v.
Florendo, supra.
90
49
injury being a continuing one; ( 6 ) and the effect is to re-establish
and maintain a pre-existing relationship recently and arbitrarily
50
interrupted by defendant than to establish a new relation. Indeed,
the w r i t should not be denied the complainant when he makes out a
51
clear case, free from doubt and dispute. T h e exception should be
taken in the light of BP Big. 224 and the 1997 Rules of Civil Proce-
dure. W h a t m a y be issued ex-parte is a T R O by the Executive Judge
or presiding Judge of a single sala court in cases of extreme ur-
52
g e n c y or by any justice of the Court of Appeals and the Supreme
Court.
I I . c E x a m p l e s : P r e l i m i n a r y m a n d a t o r y injunction w e r e
i s s u e d to:
53
1. To restore electricity.
54
2. Restoration of possession of warehouse.
3. Immediate destruction of irrigation dams which were con-

55
structed without approval of proper officer.
56
4. A r t s . 539 and 1674 of Civil Code.
49
A l v a r o v. Zapata, 118 S C R A 722.
50Dela Cruz v. Febreo, 82 S C R A 379; Pelejo v. C A , 117 S C R A 666; Rivera v.
Florendo, 144 S C R A 658; Alvaro v. Zapata, 118 S C R A 722; Hernandez v. Magat, 137
S C R A 794; P V T A v. De los Angeles, 164 S C R A 543 (1988).
"Capitol Medical Center v. Court of Appeals, 178 S C R A 493, Oct. 13,1989.
S2
Vide Sec. 5, Infra.
^ M a n i l a Electric Co. v. Del Rosario, 22 Phil. 433.
M
E s c a r i o v. Regis, 31 Phil. 618.
Êusebio v. A g u a s , 47 Phil. 567.
Ârticle 539. Every possessor has a right to be respected in his possession; and
should he be distributed therein he shall be protected in or restored to said possession
by the means established by the law and the Rules of Court.
A possessor deprived of his possession through forcible entry may within ten
days from the filing of the complaint present a motion to secure from the competent
court, in the action for forcible entry, a writ of preliminary injunction to restore him in
his possession. The court shall decide the motion within thirty (30) days from the
filing thereof.
Article 1674. In ejectment cases where an appeal is taken the remedy granted
in Article 539, second paragraph, shall also apply, if the higher court is satisfied that
the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie
meritorious. The period often days referred to in said article shall be counted from the
time the appeal is perfected.
91
V O L . III
I I . d M a n d a t o r y Injunction W a s N o t G r a n t e d :
57
1. lb compel cohabitation.
58
2. Cancellation of attachment.
3. Release of imported goods pending hearing before Com-
59
missioner of Custom.
4. Injunctions are not available to take property out of the
possession or control of one party and place it into that of another
60
whose title has not clearly been established. T h e office of the writ
61 62
of injunction is to restrain the wrongdoer "not to protect him."
5. Not Allowed To Transfer Possession
A court should not by means of a preliminary injunction trans-

fer the property in litigation from the possession of one party to
another where the legal title is in dispute and the party having
63
possession asserts ownership thereto. T h e function of injunction is
64
to preserve the status quo ante.
The rule that a court should not, by any means of a preliminary

injunction, transfer property in litigation from the possession of one
party to another, is more particularly applicable where the legal
title is in dispute and the party having possession asserts ownership
65
in himself.
The rule is predicated on the proposition that the ownership as

well as the possession of the (properties) in dispute are the main
issue and that the relief was prayed for before the issue had been
decided on the merits. T h e philosophy of the rule seems to be that
before the issue is determined in the light of the evidence presented,
justice and equity demand that the parties be maintained in their
57
Arroyo v. Vasquez, 42 Phil. 54.
M
L e v y Hermanos v. Lacson, 71 Phil. 94.
59
Commissioner of Customs v. Cloribel, 19 S C R A 234.
"'Emilia v. Bado, 23 S C R A 183; Pio v. Marcos, 56 S C R A 726.
61
C a l o v. Roldan, 76 Phil. 445, 451-452.
62
B u a y a n Cattle v. Quintillian, 128 S C R A 287.
^Rodulfa v. Alfonso, 76 Phil. 225, Feb. 28,1946; Rivera v. Florendo, supra; P N B
v. Adil, 118 S C R A 110; Toyota Motors v. C A , 216 S C R A 236, Dec. 7, 1992.
"Knecht v. C A , 228 S C R A 1 (1993); See also Borbajo v. Hidden View Homeowners,
Inc., G.R. N o . 152440, January 31, 2005.
^Gordillo and Martinez v. Del Rosario, 39 Phil. 829.
92
status quo so that no advantage m a y be given to one to the prejudice

of the other, and so it was ruled that unless there is a clear pro-
nouncement regarding ownership and possession of the land, or un-
less the lands is covered by a torrens title pointing to one of the
parties as the undisputed owner, a w r i t of preliminary injunction
should not issue to take the (properties) out of possession of one
66
party to place it in the hand of another.
W h e n parties are ordered to maintain the status quo in a T R O ,

but the prevailing condition at the time of its issuance is already
that resulting from acts of usurpation by one of the parties, which
acts of usurpation are clearly established in the pleadings, that T R O
amounts to a perpetuation of the injurious effects of such acts of
usurpation; such a state of things cannot clearly be allowed, for the
office of the w r i t of injunction is to restrain the wrongdoer, not to
67
protect h i m .
Exceptions
T h e exception is provided in Section 15 of Rule 70, Rules of

Court, governing forcible entries in which the Court may issue pre-
liminary mandatory injunction and by Section 20 thereof involving
leases in which the court may, on appeal, grant similar mandatory
injunctive relief. T h e exception applies only to ejectment cases ex-
68
clusively cognizable by the municipal court.
A possessor deprived of his possession through forcible entry

may within ten days from the filing of the complaint present a motion
to secure from the competent court, in the action for forcible entry, a
w r i t of preliminary mandatory injunction to restore him in his
possession. T h e court shall decide the motion within thirty (30) days
69
from filing thereof.
66
The REVISED RULES OF COURT IN THE PHILIPPINES, Vol. IV-A, by VICENTE J. FRAN-
CISCO, 1971, p. 226, citing Villadores v. Encarnacion, 95 Phil. 913; Rodulfa v. Alfonso,
etc., et al., 76 Phil. 225, cited in Villanueva v. C A , 259 S C R A 14, July 15,1996; Medina
v. Greenfield Development Corporation, G.R. N o . 140228, November 19, 2004, 443
S C R A 150; See also Cortez-Estrada v. Samut, G.R. N o . 154407, February 14, 2005.
67
B u a y a n Cattle Co., Inc. v. Quintillan, supra; Villanueva v. CA, 259 SCRA 14,
July 15,1996.
"'Ramos v. Court of Appeals, 163 S C R A 583, July 26, 1988.
* A r t . 539 N e w Civil Code.
93
V O L . III
In ejectment cases where an appeal is taken the remedy granted

in Article 539, second paragraph, shall also apply, if the highest
court is satisfied that the lessee's appeal is frivolous or dilatory, or
that the lessor's appeal is prima facie meritorious. The period of ten
(10) days referred to in the article shall be counted from the time the
appeal is perfected. (Art. 1874)
A motion for preliminary mandatory injunction should be
69a
resolved with dispatch.
Section 33 of B.P. 129 allows the plaintiff in an unlawful detainer
action to apply for a writ of preliminary injunction. W i t h the advent
of B.P. 129, A r t . 539 of the N e w Civil Code, Sec. 88 of the Judiciary
Act of 1948, and Sec. 3, Rule 70 of the Rules of Court have been
substantially modified. B.P. 129 provides: "provided the main action
is within its jurisdiction, an inferior court can appoint a receiver and
it has jurisdiction to issue a writ of preliminary injunction in either
69b
forcible entry or unlawful detainer cases." "Under the present law,
an inferior court has jurisdiction to grant provisional remedies in
proper cases.
For the issuance of the w r i t of preliminary injunction to be

proper, it must be shown that the invasion of the right sought to be
protected is material and substantial, that the right of complainant
is clear and unmistakable and that there is an urgent and para-
70
mount necessity for the writ to prevent serious d a m a g e .
W h e n P r o p e r t y C o v e r e d b y T o r r e n s Title
Although as a general rule, a court should not, by means of a

preliminary injunction, transfer property in litigation from the pos-
session of one party to another, this rule admits of some exceptions.
For example, when there is a clear finding of ownership and posses-
sion of the land or unless the subject property is covered by a torrens
71
title pointing to one of the parties as the undisputed owner.
69a
Salvador v. Salamanca, 144 S C R A 276.
69b
Regalado L a w Compendium, Second Revised Edition, p. 33.
70
Development Bank of the Phils, v. C A , 344 S C R A 492, October 30, 2000, J.
Mendoza.
71
See Government Service Insurance System v. Florendo, 178 S C R A 77 (1989).
94
III. DISCRETION IN ISSUANCE OF P R E L I M I N A R Y IN-

JUNCTION
As a general rule, the grant or denial of an injunction rests on

the sound discretion of the lower court in the exercise of which the
72
Supreme Court w i l l not intervene except in a clear case of abuse.
T h e Supreme Court, however, enjoined Judges on the need for

the E X E R C I S E O F U T M O S T C A U T I O N P R U D E N C E A N D J U D I -
CIOUSNESS IN ISSUANCE OF TEMPORARY RESTRAINING
7 3
ORDERS A N D W R I T S OF P R E L I M I N A R Y INJUNCTION.
a. N e e d For Caution
T h e issuance of a w r i t of preliminary injunction is addressed to

the sound discretion of the court, conditioned on the existence of a
clear and positive right of the movant which should be protected. It
is an extraordinary peremptory remedy available only on the grounds
expressly provided by law, specifically Section 3, Rule 58 of the
74
Rules of Court. In the issuance thereof, the courts are given suffi-
cient discretion to determine the necessity for the grant of the relief
prayed for as it affects the respective rights of the parties with the
caveat that extreme caution be observed in the exercise of such
75
discretion. It is also a settled rule that the issuance of the writ of
preliminary injunction as an ancillary or preventive remedy to se-
cure the rights of a party in a pending case is entirely within the
discretion of the court taking cognizance of the case, the only limita-
tion being that this discretion should be exercised based upon the
grounds and in the manner provided by law. T h e exercise of sound
judicial discretion by the lower court in injunctive matters should
76
not be interfered with except in cases of manifest abuse.
72
See S and A Gaisano, Inc. v. Hidalgo, 192 S C R A 224 (1990); Genoblazo v. Court
of Appeals, 174 S C R A 124 (1989); Detective and Protective Bureau, Inc. v. Hidalgo, 63
Phil. 664 (1936).
73
Administrative Circular N o . 0-99, June 25, 1999.
74
Valley Trading Co., Inc. v. Court of First Instance of Isabela, et al., 171 S C R A
501 (1989).
76
Bataclan, et al. v. Court of Appeals, et al., 175 S C R A 764 (1989).
76
Detective and Protective Bureau, Inc. v. Cloribel, 26 S C R A 255, Nov. 29,1968;
Government Service Insurance System v. Florendo, 178 S C R A 76, Sept. 29,1989; Searth
Commodities Corp. v. Court of Appeals, 207 SCRA622 (1992); See also Rualo v. Pitargue,
G.R. No. 140284, January 21, 2005.
95
V O L . III
b. C o u r t must State Facts a n d L a w t o Justify G r a n t

The court must state its own findings of fact and cite the par-
ticular law to justify the grant of preliminary injunction. Utmost
care in this regard is demanded, and it has been truly said:
"There is no power the exercise of which is more delicate

which requires greater caution, deliberation, and sound discre-
tion, or (which is) more dangerous in a doubtful case than the
issuing of an injunction, it is the strong arm of equity that
never ought to be extended unless to case of great injury, where
court law cannot afford an adequate or commensurate remedy
in damages."
Since injunction is the strong arm of equity, he who must apply

for it must come with equity or with clean hands. This is because
among the maxims of equity are: ( 1 ) he who seeks equity must do
equity, and ( 2 ) he who comes into equity must come with clean
hands. The latter is a frequently stated maxim which is also ex-
pressed in the principle that he who has done inequity shall not
have equity. It signifies that a litigant may be denied relief by a
court of equity on the ground that his conduct has been inequitable,
unfair and dishonest, or fraudulent, or deceitful as to the contro-
77
versy in issue.
c. O b j e c t of P r e l i m i n a r y I n j u n c t i o n
The sole object of a preliminary injunction, whether prohibi-

tory or mandatory is to preserve the status quo until the merits of
the case can be heard. T h e status quo is the last actual peaceable
78
uncontested status which preceded the controversy. It m a y only be
resorted to by a litigant for the preservation or protection of his
rights or interests and for no other purpose during the pendency of
79
the principal action. It should only be granted if the party asking
80
for it is clearly entitled thereto.
77
University of the Philippines v. Judge Catungal, 272 S C R A 221, M a y 5,1997;
See also Manila International Airport Authority v. Court of Appeals, G.R. N o . 118249,
February 2003, 397 S C R A 348, cited in Rualo v. Pitargue, G.R. N o . 140284, January
21, 2005.
78
Rodulfa v. Alfonso, 76 Phil. 225.
79
C a l o v. Roldan, 76 Phil. 445.
80
Climaco v. Macadaeg, 4 S C R A 930; Subido v. Gopengco, 27 S C R A 455; Police
Commission v. Bello, 37 S C R A 230; Capitol Medical Center, Inc. v. Court of Appeals,
178 S C R A 493, Oct. 13,1989.
96
d. Strong A r m of Equity
At times referred to as the "strong arm of equity" the writ of

preliminary injunction, whether prohibitory or mandatory, is sought
for the protection of the rights of a party before the final determina-
tion of his rights vis-a-vis others in a pending case before the court. It
w i l l issue only upon a showing that there exists a clear and present
right to be protected and that the facts upon which the writ is to be
81
directed are violative of said right.
As an extraordinary remedy, injunction is calculated to pre-

serve or maintain the status quo of things and is generally availed of
to prevent actual or threatened acts, until the merits of the case can
82
be heard. As such, injunction is accepted as the "strong arm of
equity or a transcendent remedy" to be used cautiously, as it affects
the respective rights of the parties, and only upon full conviction on
83
the part of the court of its extreme necessity. Its issuance rests
entirely within the discretion of the court-taking cognizance of the
case and is generally not interfered with except in cases of manifest
84
abuse. Moreover, it m a y only be resorted to by a litigant for the
preservation or protection of his rights or interests and for no other
85
purpose during the pendency of the principal action.
Before an injunction can be issued, it is essential that the fol-
lowing requisites be present: ( 1 ) there must be a right in esse or the
existence of a right to be protected; and ( 2 ) the act against which the
86
injunction is to be directed is a violation of such right. Hence, it
should not be granted if the party asking for it is clearly entitled
87
thereto.
81
A n g e l a Estate, Inc., et al. v. C F I of Negros Occidental, et al., 24 S C R A 500,
July 31,1968; Locsin v. Climaco, 26 S C R A 816, January 31,1969; Buayan Cattle Co.,
Inc. v. Quintillan, 128 S C R A 276, March 19, 1984.
82
Philippine Virginia Tobacco Administration v. Delos Angeles, 164 S C R A 543
(1988); Rivera v. Florendo, 144 S C R A 643 (1986).
C l e v e l a n d v. Martin, 218 I I I , 73; 75 N E 722 cited in LAURETA, COMMENTARIES
AND JURISPRUDENCE ON INJUNCTIONS, p. 2 (1989 Ed.).
^Government Service Insurance System v. Florendo, 178 S C R A 76 (1989); De-
tective and Protective Bureau, Inc. v. Cloribel, 26 S C R A 255 (1968); Rodulfa v. Alfonso,
76 Phil. 225 (1946).
^Calo v. Roldan, 76 Phil. 445 (1946).
M
S a l e s v. Securities and Exchange Commission, 169 S C R A 109 (1989).
87
Capitol Medical Center, Inc. v. C A , 178 S C R A 493 (1989); Cagayan de Oro
Landless Residents Association v. Court of Appeals, 254 S C R A 221, 228 (1996); See
also European Resources and Technologies, Inc. v. Ingenieuburo Birkhahn, G.R. No.
159581, July 26, 2004.
97
V O L . III
e. M e r e Possibility of I r r e p a r a b l e I n j u r y Insufficient
It cannot be over-emphasized that the mere prayer for the
preservation of the status quo pending the appellate court's adjudi-
cation of the issues is not sufficient to warrant the issuance of this
writ. "The possibility of irreparable damage, without proof of viola-
tion of an actually existing right, is no ground for an injunction
88
being a mere damnum absque injuria"
f. M e r e A l l e g a t i o n , Insufficient
A mere allegation, in the absence of any support in the record,
does not meet the standard proof that would warrant the issuance of
89
the injunctive r e l i e f T h e complaint for injunctive relief must be
90
strictly construed against the pleader. Before a w r i t of preliminary
injunction may be issued, there must be a clear showing by the
complainant that there exists a right to be protected and that the
91
acts against which the writ is to be directed are violative of said right.
The duty of the court taking cognizance of a prayer for a w r i t of

preliminary injunction is to determine whether the requisites neces-
92
sary for the grant of an injunction are present in the case before it.
T h e N e e d t o Specify B a s i s
93
In a case, there were no findings of fact or l a w in the assailed
order indicating that any of the elements essential for the grant of a
preliminary injunction existed. T h e trial court alluded to hearings
during which the parties marked their respective exhibits and the
trial court heard the oral arguments of opposing counsels. H o w e v e r ,
it cannot be ascertained w h a t evidence was formally offered and
presented by the parties and given w e i g h t and credence by the trial
court. T h e Court held that the basis for the trial court's conclusion
^Bacolod-Murcia Milling Co., Inc., et al. v. Capitol Subdivision, Inc., et al., 17

S C R A 731, 737, July 26, 1966; Heirs of Eugenia Roxas, Inc. v. I A C , 173 S C R A 581,
M a y 29,1989; See also Sales v. Securities and Exchange Commission, 169 S C R A 307,
Jan. 13,1989; Valley Trading Co., Inc. v. Court of First Instance, 171 S C R A 501, March
31,1989.
89
Sales v. Securities and Exchange Commission, 169 S C R A 109 (1989).
>Ibid.
"National Power Corporation v. Vera, 170 S C R A 721 (1989).
^Manila International Airport Authority v. Court of Appeals, 397 S C R A 348,
February 14, 2003.
93
Supra.
98
that K Services was entitled to a w r i t of preliminary injunction is

unclear.
T h e trial court stated that it issued the injunction to prevent

irreparable loss that might be caused to K Services. T h e trial court
neglected to mention what right in esse of K Services, if any, was in
danger of being violated and required the protection of a prelimi-
nary injunction. T h e trial court stated merely that K Services was
servicing M I A A as a porterage contractor and that a notice of termi-
nation was sent to K Services. Absent a preliminary finding by the
trial court that K Services possessed the right to continue as M I A A s
concessionaire, M I A A ' s termination of K Services' was not sufficient
in itself to establish that there was an invasion of K Services' right.
Considering that far-reaching effects of a w r i t of preliminary

injunction, the trial court should have exercised more prudence and
judiciousness in its issuance of the injunction order. We remind trial
courts that while generally the grant of a w r i t of preliminary injunc-
tion rests on the sound discretion of the court taking cognizance of
the case, extreme caution must be observed in the exercise of such
discretion. T h e discretion of the court a quo to grant an injunctive
w r i t must be exercised based on the grounds and in the manner
94
provided by law. Thus, the Court declared in Garcia v. Burgos.
XXX
T h e Court has ruled that the possibility of irreparable damage

without proof of actual existing right is not a ground for an injunc-
tion. W h e r e the complainant's right is doubtful or disputed, injunc-
tion is not proper. Absent a clear legal right, the issuance of the
95
injunctive relief constitutes grave abuse of discretion.
6. CASES - W H E R E I N J U N C T I O N WAS HELD IM-

PROPER
A . Injunction A g a i n s t C o u r t s o r T r i b u n a l s o f C o - E q u a l R a n k
Prohibited
1. A court may not interfere by injunction with the judg-
ments or orders of another court of coordinate and concurrent juris-
96
diction.
"291 S C R A 546 (1998), citing Olalia v. Hizon, 196 S C R A 665 (1991).

"Manila International Airport Authority v. C A , 397 S C R A 348, February 14,
2003; See also Tayag v. Lacson, March 25, 2004.
*Roldan v. Area, 65 S C R A 336; Abiera v. C A , 45 S C R A 314.
99
V O L . III
The principle applies regardless of whether it is an ordinary

action or a special civil action.
2. No writ may be issued by the R T C against Quasi-judicial
97
bodies of equal rank such as SSC, S E C , P S C , patent office or
9 8
C O M E L E C or W C C .
2.a Under the doctrine of separation of powers, courts
have no jurisdiction to restrain Congress from performing its
constitutionally vested function to conduct investigations in
aid of legislation and from requiring respondent to appear and
99
testify before i t .
3. A Caloocan Court can however enjoin the Sheriff from
selling properties he levied upon to satisfy the judgment of the C F I
of Manila where the property levied upon was within the jurisdic-
tion of the Caloocan Court and is being claimed by third-party who
100
was not a party to the case where the w r i t was issued.
4. Inferior Courts may issue writs of preliminary injunction

only in forcible entry and unlawful detainer cases. T h e exclusive
original jurisdiction of inferior court in civil cases now includes the
101
grant of provisional remedies in proper cases.
5. Under the doctrine of separation of powers, courts have

no jurisdiction to restrain Congress from performing its constitu-
tionally vested function to conduct investigations in aid of legisla-
102
tion and from requiring respondent to appear and testify before i t .
B. Injunction O r d e r s a r e P r o h i b i t e d i n the F o l l o w i n g Cases:
B.l LABOR DISPUTES
Under Batas Pambansa Big. 227 amending A r t . 255 (Labor

Code) no temporary or permanent injunction in cases g r o w i n g out of
97
Phil. Pacific v. Luna, 112 S C R A 604.
98
Nocnoc v. Vera, 88 S C R A 529; Philippine Sinter Corporation and P H I V I D E C
Industrial Authority v. Cagayan Electric Power and Light Co., Inc., G.R. N o . 127371,
April 25, 2002; See also Mison v. Natividad, 213 S C R A 734-742 (1992).
"The Senate Blue Ribbon Committee v. Majaducon, 407 S C R A 356, July 29,
2003.
100
Arabay, Inc. v. Salvador, 82 S C R A 138.
101
Sec. 33, BP 129; Vide see also Section 15, Rule 70, Rules of Court.
102
T h e Senate Blue Ribbon Committee v. Majaducon, 407 S C R A 356, July 29,
2003.
100
labor dispute shall be issued by a court or other entity except as

103
otherwise provided in Articles 281 and 264 of this C o d e .
Under PD 218 I t is the N L R C that issues an injunction in

labor disputes.
104
See also Kaisahan ng mga Manggagawa v. Sarmiento.
B.2 DISPOSITION OF N A T U R A L RESOURCES
PD 605 Prohibition of Injunction involving Concessions, li-

censes and other permits issued by public administrative office or
bodies for the exploitation of natural resources.
B.3 INFRASTRUCTURES A N D PUBLIC UTILITIES
PD 1818 Prohibition of injunction in cases involving infra-

105
structures and natural resources development and public utilities.
T h e prohibitions under P D . 605 and P D . 1818 pertain to the

issuance of injunction or restraining order by courts against admin-
istrative acts in controversies involving facts or the exercise of dis-
cretion in technical cases. However, on issues definitely outside of
their dimension and involving questions of law, like non-compliance
with the rules on bidding, courts should not be prevented by P D .
605 from exercising their power to restrain or prohibit administra-
tive acts. P D . 1818 was not intended to shield from judicial scrutiny
106
irregularities committed by administrative agencies.
Âssociated Labor Union v. Judge Borromeo, 166 S C R A 99,29 September 1988.

104
133 S C R A 220. The Hongkong Shanghai Banking Corporation Employees
Union v. National Labor Relations Commission, 370 S C R A 193, November 22, 2001,
upholding authority of N L R C to issue T R O or Preliminary injunction enjoining the
union from unlawfully barricading and/or obstructing the free ingress to and egress
from respondent bank's offices.
106
National Power Corporation v. Judge Vera, G.R. N o . 83558, 27 Feb. 1989,170
S C R A 721; See also Garcia v. Burgos, 291 S C R A 546,571-572 (1998); Philippine School
of Business Administration, Quezon City v. Tolentino, G.R. N o . 159277, December 21,
2004, 447 S C R A 442, L R T is an infrastructure project.
106
M a l a g a v. Peaflor, 213 S C R A 516 (1992); Vide Gevaro Reyes Construction v.
Court of Appeals, 234 S C R A 116 (1994); See also Zamora v. Caballero, January 14,
2004, 419 S C R A 384.
101
V O L . III
B.4 GOVERNMENT FINANCING INSTITUTIONS

PD 385 Prohibition to issue injunction against any govern-
ment financing institution in any action taken by such institution in
connection with the mandatory foreclosure where arrears amount to
at least 20% of the total outstanding obligations including interest
and other charges as appearing in the book of accounts and/or re-
107
lated records of the financial institutions concerned.
PD 385 cannot however, be applied where the extent of the loan
108
actually received by the borrower is still to be determined.
It is not also applicable to properties already foreclosed. T h e
prohibition found in P D . 385 against the issuance of injunctions by
lower courts, unless certain conditions are met, applies only to fore-
closure proceedings initiated by government financing institutions
1 0 9
like the D B P
B.5 AGRARIAN REFORM
Administrative Circular N o . 92 U r g i n g Careful Consideration

o f p r o p e r a p p l i c a t i o n o f the C o m p r e h e n s i v e A g r a r i a n R e f o r m
Law
No restraining order or preliminary injunction against PARC

(Presidential Agrarian Reform Council). No court in the Philip-
pines shall have jurisdiction to issue any restraining order or w r i t of
preliminary injunction against P A R C or any of its duly authorized
or designated agencies in any case, dispute or controversy arising
from, necessary to, or in connection with the application, implemen-
tation, enforcement, or interpretation of this A c t and other pertinent
110
laws on agrarian reform.
The foregoing provision has generated confusion and conflict of

jurisdiction between the D A R and trial courts prompting the Su-
preme Court to issue Administrative Circular N o . 92 dated October
12,1992. The Court reiterated to all trial court judges the need for a
careful consideration of the proper application of the Comprehensive
107
Filipinas Marble Corp. v. I A C , 142 S C R A 182.
108
Supra; See also Government Service Insurance System v. Court of Appeals,
169 S C R A 244, January 20,1989.
109
Searth Commodities Corp. v. Court of Appeals, 207 S C R A 622 (1992).
110
Sec. 55, Comprehensive Agrarian Reform Law.
102
Agrarian Reform Law (RA 6657) to avoid conflict of jurisdiction with

the Department of A g r a r i a n Reform Adjudication Boards. The trial
court judges were directed to take note of the rulings in Vda. de
Tangub v. Court of Appeals, 191 SCRA 885 and Quismundo v. Court
111
of Appeals, 201 SCRA 609.
SOME PARAMETERS TO AVOID CONFLICT

OF JURISDICTION
I. A G R A R I A N REFORM CASES N O W WITH DAR
A. A G R A R I A N R E F O R M CASES IS N O W WITH THE

D E P A R T M E N T O F A G R A R I A N R E F O R M (THE DAR, DE-
PARTMENT OF AGRARIAN REFORM IS NOW KNOWN AS
THE DLR-DEPARTMENT OF L A N D R E F O R M (EXECUTIVE
O R D E R N O . 364, S E P T E M B E R 27, 2004) A N D T H E D A R A B
(DEPARTMENT OF AGRARIAN REFORM ADJUDICATION
BOARD)
Section 12(a) and ( b ) of Presidential Decree N o . 946 invested

the then courts of agrarian relations with original and exclusive
jurisdiction over cases and questions involving rights granted and
obligations imposed by presidential issuances promulgated in rela-
tion to the agrarian reform program.
In 1980, upon the passage of Batas Pambansa Big. 129, other-

wise known as the Judiciary Reorganization Act, the courts of agrar-
ian relations w e r e integrated into the regional trial courts and the
112
jurisdiction of the former was vested in the latter courts.
However, with the enactment of Executive Order N o . 229, which

took effect on August 29, 1987, fifteen (15) days after its release for
publication in the Official Gazette, the regional trial courts were di-
vested of their general jurisdiction to try agrarian reform matters.
The said jurisdiction is now vested in the Department of Agrarian
113
Reform.
m
See also D A R v. Cuenca, G.R. No. 1514112, 439 S C R A 15 (2004); Rule XV,
D A R A B Rules.
112
Romero, et al. v. Court of Appeals, et al., 147 S C R A 183 (1987); Sec. 19(7), B.P.
Big. 129.
113
Quismundo v. Court of Appeals, 201 SCRA609, cited and reiterated in Tiongson
v. Court of Appeals, 214 S C R A 197, September 23, 1982.
103
V O L . III
Under R . A . N o . 6657 or popularly known as the Comprehen-

sive Agrarian Reform L a w ( C A R L ) of 1988. The D A R has original,
exclusive jurisdiction over agrarian disputes, except on the aspects
of: ( a ) just compensation; and ( b ) criminal jurisdiction over which
regular courts have jurisdiction. The matter since has been further
and definitively clarified by Republic A c t N o . 6657, which was signed
into law by President Aquino on June 10,1988 and became effective
immediately after its "publication in two ( 2 ) national newspapers of
general circulation" on June 15, 1988. T h e A c t makes references to
and explicitly recognizes the effectivity and applicability of Presi-
dential Decree N o . 229. M o r e particularly, the A c t echoes the provi-
sions of Section 17 of Presidential Decree N o . 229, supra, investing
the Department of Agrarian Reform with original jurisdiction, gen-
erally, over all cases involving agrarian laws, although, as shall
shortly be pointed out, it restores to the Regional Trial Court limited
jurisdiction over two groups of cases.
EXCLUSIVE JURISDICTION OF D A R
Section 50 of RA 6657 confers jurisdiction on the D A R A B over

agrarian reform cases or controversies as follows:
"Section 50. Quasi-Judicial Powers of the DAR. T h e

D A R is hereby vested with the primary jurisdiction to deter-
mine and adjudicate agrarian reform matters and shall have
exclusive original jurisdiction over all matters involving the
implementation of agrarian reform except those falling under
the exclusive jurisdiction of the Department of Agriculture ( D A )
and the Department of Environment and Natural Resources
(DENR).
***
Further exceptions to the D A R ' s exclusive jurisdiction are pro-

vided for in Sections 56 and 57 of the A c t which vest in the regional
trial courts (designated by the Supreme Court as Special A g r a r i a n
Courts) original and exclusive jurisdiction over all petitions for the
determination of just compensation to landowners and the prosecu-
tion of criminal offenses under the A c t .
To implement this particular provision of RA 6657 regarding

the adjudication of agrarian reform matters, the D A R adopted the
D A R A B N e w Rules of Procedure, issued on M a y 30, 1994. (Modify-
104
ing or repealing accordingly the DARAB Revised Rules of Procedure

[1989] and all DAR administrative provision that are inconsistent
therewith.) Under Section 1, Rule II of the said Rules of Procedure,
the D A R A B has exclusive original jurisdiction over the following cases:
" ( a ) T h e rights and obligations of persons, whether natu-
ral or juridical, engaged in the management, cultivation and
use of all agricultural lands covered by the C A R P and other
agrarian laws.
(b) T h e valuation of land, and the preliminary determi-

nation and payment of just compensation, fixing and collection
of lease rentals, disturbance, compensation, amortization pay-
ments, and similar disputes concerning the functions of the
L a n d Bank o f the Philippines ( L B P ) ;
xxx xxx
( f ) Those involving the issuance, correction and cancel-

lation of Certificates of L a n d Ownership Awards ( C L O A s ) and
Emancipation Patents (EPs) which are registered with the Land
Registration Authority;
( g ) Those cases previously falling under the original and

exclusive jurisdiction of the defunct Court of Agrarian Rela-
tions under Section 12 of Presidential Decree N o . 946, except
subparagraph ( Q ) thereof and Presidential Decree N o . 815;
xxx xxx
Matters involving strictly the administrative implemen-
tation of Republic A c t N o . 6657, otherwise known as the Com-
prehensive A g r a r i a n Reform L a w ( C A R L ) of 1988 and other
agrarian laws as enunciated by pertinent rules shall be the ex-
clusive prerogative of and cognizable by the Secretary of the
DAR;
( h ) A n d such other agrarian cases, disputes, matters or
concerns referred to it by the Secretary of the D A R . " (emphasis
ours)
Subparagraph () stated above provides that the D A R A B has
exclusive jurisdiction over cases involving the issuance, registered
with the Land Registration Authority (the Registry of Deeds). (The
Rule was modified or repealed by Administrative Order N o . 03, 2003
otherwise known as the 2003 R U L E S F O R A G R A R I A N LAW, CASES
105
V O L . III
WITHIN THE EXCLUSIVE JURISDICTION OF THE DARAB,

R A R A D A N D P A R A D may be found in Section 3, Rule 1 of the new
R u l e ) (Rules of Pleading NS Procedure of Various Judicial
Administrative Agencies, Volume 1, p. 189)
HEIRARCHY OF AGENCIES
Under the D A R A B Revised Rules (which the D A R is author-
ized to promulgate), the DAR's exclusive original jurisdiction is ex-
ercised through hierarchically arranged agencies, namely: the
D A R A B , R A R A D and P A R A D . The latter two exercise "delegated
authority" while the first exercises appellate jurisdiction over reso-
lutions, orders, decisions and other dispositions of the R A R A D and
P A R A D , and "functional supervision" over the R A R A D and P A R A D .
1. A l l actions pursued under the exclusive jurisdiction of the
D A R in accordance with Section 50 of RA 6657 must be commenced
in the P A R A D of the province where the property is located and that
D A R A B only has appellate jurisdiction to review the P A R A D ' s or-
ders, decisions and other dispositions, and is without jurisdiction to
take cognizance in the first instance of complaints filed under the
114
said l a w .
2. Appeal to the D A R A B from the P A R A D or R A R A D is an

administrative remedy. If not shown to be inadequate, it must first
have to be exhausted, otherwise, the jurisdiction of the regular courts
may not be invoked. Failure to exhaust administrative remedies is
fatal to a party's cause of action and a dismissal based on that
115
ground is tantamount to dismissal based on lack of cause of action.
3. Special Civil Action of Certiorari Against P A R A D A l l o w e d
A special civil action of certiorari, however, is an independent

action, raising the question of jurisdiction where the tribunal, board,
or officer exercising judicial or quasi-judicial functions has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction. Revised Rules of Court,
Section 1, Rule 65. As already discussed, the P A R A D has no power to
114
Department of Agrarian Reform and Adjudication Board ( D A R A B ) v. Court of
Appeals, 78 S C A D 125, 266 S C R A 404, January 21, 1997.
116
Department of Agrarian Reform and Adjudication Board ( D A R A B ) v. Court of
Appeals, supra.
106
act on the case as the subject matter of the action was beyond the
scope of its jurisdiction under the law. Petitioners would want re-
spondents to appeal the P A R A D ruling to the D A R A B as a logical
and proper remedy, rather than go on certiorari before the C A . A p -
peal in this case, however, would have been an inadequate remedy
as precisely respondents w e r e questioning the v e r y jurisdiction of
the P A R A B to take cognizance of the case.
4. T h e availability of the ordinary recourse of appeal does

not bar a party from making use of the extraordinary remedy of
certiorari where the ordinary appeal would not be a prompt and
116
adequate remedy, that i s , " [ a ] remedy which is equally beneficial,
speedy and sufficient, not merely a remedy which at some time in
the future will bring about a revival of the judgment of the lower
court complained of in the certiorari proceeding, but a remedy which
w i l l promptly relieve the petitioner from the injurious effects of that
117
judgment and the acts of the inferior court or tribunal.
SPECIAL JURISDICTION OF RTC O V E R A G R A R I A N CASES
Regional Trial Courts have not been completely divested of

jurisdiction over agrarian reform matters. Section 56 of R . A . N o .
,,
6657 confers "special jurisdiction on "Special Agrarian Courts," which
are Regional Trial Courts designated by the Supreme Court at
least one ( 1 ) branch within each province to act as such. These
Regional Trial Courts {qua Special A g r a r i a n Courts) have, according
to Section 57 of the same law, original and exclusive jurisdiction
over: 1) "all petitions for the determination of just compensation
118
under this x x x A c t . " Consequently, although the new rules speak
of directly appealing the decision of adjudicators to the R T C s sitting
as Special A g r a r i a n Courts, it is clear from Section 57 that the
original and exclusive jurisdiction to determine such cases is with
the R T C s . A n y effort to transfer such jurisdiction to the adjudicators
and to convert the original jurisdiction of the R T C s into appellate
jurisdiction would be contrary to Section 57 and, therefore, would be
void. W h a t adjudicators are empowered to do is to only determine in
116
S e e FERIA, CIVIL PROCEDURE ANNOTATED, pp. 465-466, citing Silvestre v. Torres,
57 Phil. 885, 893 (1933).
117
Romero v. Tan, 424 S C R A 108, Feb. 27, 2004.
118
V d a . de Tangub v. Court of Appeals, 191 S C R A 885.
107
V O L . III
a preliminary manner the reasonable compensation to be paid to

landowners, leaving to the courts the ultimate power to decide this
119
question.
LIMITATIONS OF DAKAR'S P O W E R
1. The D A R A B has no power to try, hear and adjudicate a
case involving a portion of school's site actually, directly and exclu-
sively used and found by the school to be necessary for its pur-
120
poses.
2. The P A R A D has no jurisdiction on dispute not involving
agricultural lands, like fishponds and P r a w n Farms.
3. The jurisdiction of the P A R A D is limited to agrarian dis-
putes or controversies and other matters or incidents involving the
implementation of the Comprehensive A g r a r i a n Reform P r o g r a m
( C A R P ) under Rep. A c t N o . 6657, Rep. A c t N o . 3844 and other agrar-
ian laws. Rule I I , Sec. 1 of the Rules of Procedure Governing Pro-
ceedings Before the D A R Adjudication Board and Different Regional
and Provincial Adjudicators.
An Agrarian dispute is defined as any controversy relating to

tenurial arrangements, whether leasehold, tenancy, stewardship or
otherwise, over lands devoted to agriculture, including disputes con-
cerning farm workers associations or representation of persons in
negotiating, fixing, maintaining, changing or seeking to arrange terms
121
or conditions of such tenurial arrangements.
4. Fishponds and Prawn Farms not Included in Definition of

Agricultural Land
There is no agrarian tenancy relationship to speak of where

certain requirements set by present l a w on the matter have not been
met. A m o n g these are: ( 1 ) the subject matter should be agricultural
land; ( 2 ) the purpose should be agricultural production; and ( 3 ) there
should be personal cultivation done by the tenants themselves. See
119
Republic v. Court of Appeals, 75 S C A D 741, 263 S C R A 759, Oct. 30,1996.
120
Central Mindanao University v. D A R A B , 215 S C R A 86 (1992).
121
Romero v. Tan, G.R. N o . 14750, Feb. 27, 2004, 424 S C R A 108, citing Section
3(d), Rep. Act N o . 6657, as amended.
108
Section 166(2), ( 3 ) , RA 3844; N o t e that Section 4 of RA 3844, as

amended, states that agricultural share tenancy throughout the coun-
try is declared contrary to public policy and shall be automatically
converted to agricultural leasehold upon the effectivity of the said
section.
5. Unless the requisite elements of agrarian tenancy concur

in order to create a tenancy relationship between the parties, the
matter is not within the purview of tenancy under C A R L . The ab-
sence of one element makes an occupant of a parcel of land, or a
cultivator thereof, or a planter thereon outside the scope of C A R L .
N o r can such occupant, cultivator or planter be classified as a de jure
agricultural tenant for purposes of agrarian reform law. A n d unless
a person has established his status as a de jure tenant, he is not
entitled to security of tenure nor is he covered by the Land Reform
122
P r o g r a m of the Government under existing agrarian reform l a w s .
6. T h e M T C has jurisdiction over the case for ejectment. It is

a basic tenet of l a w that courts acquire jurisdiction over the subject
matter based on the allegations of the complaint. T h e assertions in
the answer by the defendant cannot divest the court of said jurisdic-
tion. T h e original complaint filed by respondents clearly alleged that
it was a suit for ejectment, the jurisdiction of which is lodged with
1 2 3
the proper M T C .
7. W h e r e petitioner's action who purchased the lot in a tax

delinquency sale is to recover possession from respondents who claim
ownership on the basis of emancipation patents, and, there is no
juridical tie or tenurial relationship between them this does not in-
volve an agrarian dispute, but one for recovery of possession, juris-
124
diction is with the Regional Trial Courts.
B.6 ASSETS PRIVATIZATION TRUST
1 2 5
Prohibition to issue injunction against the A P T .
122
Caballes v. Department of Agrarian Reform, 168 S C R A 247, 254, 5 December
1988, citing Tiongson v. Court of Appeals, G.R. N o . L-62626, 18 July 1984, 130 S C R A
482, 488.
123
Romero v. Tan, 424 S C R A 108, Feb. 27, 2004.
l24
A r z a g a v. Copias, 400 S C R A 148, March 2003.
126
Asset Privatization Trust (Sec. 31-A, Proclamation No. 50-A); Mantruste Sys-
tem v. C A , G.R. Nos. 86540-41, November 6, 1989, 179 S C R A 136.
109
V O L . III
EXCEPTIONS:
a. A court should issue a writ of preliminary injunction only
when the petitioner assailing a statute or administrative order has
made out a case of unconstitutionality aside from showing a clear
126
legal right to the remedy sought.
b. Presidential Decree 605 which prohibits courts from exer-
cising jurisdiction to issue preliminary injunction in a case involving
the issuance or approval by administrative officials of public grants
in connection with the exploitation of natural resources, does not
apply in a case where the complaint does not put in issue the legiti-
macy of the defendant's claim of being holders of mining lease con-
127
tracts, but asserts that defendants had r i g h t s .
G. TO RESTRAIN C O L L E C T I O N OF TAXES
1. Injunction is not p r o p e r to r e s t r a i n B u r e a u of
I n t e r n a l R e v e n u e in the collection of taxes
Under the Internal Revenue Code: Injunction is not available

to restrain collection of tax. No court shall have the authority to
grant an injunction to restrain the collection of any national internal
128
revenue tax, fee, or charge imposed by this C o d e .
It has been the uniform holding of the court that no suit for
enjoining the collection of a tax, disputed or undisputed, can be
brought, the remedy being to pay the tax first, formerly under protest
and now without need of protest, file the claim w i t h the collector,
129
and if he denies it, bring an action for recovery against h i m .
In a complaint to seek the nullity of an ordinance imposing a

graduated tax on retailers, with prayer for a w r i t of preliminary
injunction to enjoin the collection of a tax, the damage that m a y be
caused to the taxpayer will not be irreparable. W h a t e v e r the taxpayer
shall have to pay is easily refundable. Besides, the damage to the
126
Tablarin v. Gutierrez, 152 S C R A 730 (1987).
1 2 7
D . C . Crystal, Inc. v. Laya, 170 S C R A 734, 28 Feb. 1989.
12S
Sec. 305 later Section 219 of the 1977 Internal Revenue Code.
129
D a v i d v. Ramos, G.R. N o . L-4300, October 13, 1951; Sarasola v. Trinidad, 40
Phil. 252.
110
taxpayer's property rights must take a back seat to the paramount

need of the State for funds to sustain governmental functions.
Compared to the damage to the State which may be caused by reduced
financial resources, the damage to the taxpayer is negligible. The
policy of the l a w is to discountenance any delay in the collection of
taxes because of the oft-repeated but unassailable consideration that
are the lifeblood of the government and their prompt and certain
availability is an imperious need.
Exception:
W h e r e there are special circumstances that bear the existence

130
of irreparable injury.
T h e Court of Tax Appeals has exclusive jurisdiction to issue in

proper cases, a w r i t of preliminary jurisdiction to restrain a distraint
131
and l e v y ordered by Internal Revenue to collect t a x e s .
a. W h e r e a party has been proclaimed a duly elected Mayor,

132
injunction m a y not issue to restrain him from assuming his office.
T h e pendency of an election protest is not sufficient basis to

enjoin the petitioner from assuming office as required by law. The
efficiency of public administration should not be impaired. Until and
unless, the election protest is decided against the petitioner, he has
133
the lawful right to assume office and perform his duties as mayor.
An injunction is not to protect contingent or future rights nor is

it a remedy to enforce an abstract right.
b. T h e C F I has no power to issue a writ of injunction against

the Register of Deeds if its effect is to render nugatory a writ of
1 3 4
execution issued by the N L R C .
c. A writ of injunction is not proper to stop the execution of
135
judgment where the judgment was already executed.
130
Churchill and Tait v. Rafferty, 32 Phil. 580.
131
C a s t r o v. Blaquera, 100 Phil. 981 (1957).
132
Cereno v. Dictado, 160 S C R A 759 (1988).
133
Ibid.
134
Ambrosio v. Salvador, 87 S C R A 217.
136
Meneses v. Dinglasan, 81 Phil. 470.
III
V O L . III
But where the lower court enforced its judgment before a party
against whom the execution was enforced could elevate her appeal
in an injunction suit, which was instituted to prevent said execu-
tion, an independent petition for injunction in the Court of Appeals
136
is justified.
H. TO RESTRAIN CRIMINAL PROSECUTION
11. Injunction w i l l not lie to e n j o i n the p r o s e c u t i o n of

137
criminal p r o c e e d i n g s .
The general rule is that criminal prosecution may not be re-

strained or stayed by injunction, preliminary or final. Public inter-
est requires that criminal acts be immediately investigated and pros-
138
ecuted for the protection of society. There are, however, exceptions,
among which are:
Exceptions:
a. To afford adequate protection to the constitutional rights

139
of the accused.
b. W h e n necessary for the orderly administration of justice

140
or to avoid oppression or multiplicity or actions;
141
c. W h e n there is a prejudicial question;
d. W h e n the acts of the officer are without or in excess of

142
authority;
e. W h e r e the prosecution is under an invalid law, ordinance

143
or regulation;
136
M a n i l a Surety and Fidelity v. Teodoro, 20 S C R A 463.
137
Asutilla v. P N B , 141 S C R A 40; Guingona v. City Fiscal, 137 S C R A 597, 577;
Justiniani v. Castillo, 162 S C R A 378 (1988); Romero v. Chief of Staff, 170 S C R A 408
(1989); Brocka v. Enrile, 192 S C R A 182.
138
Gorospe v. Peaflorida, 101 Phil. 886 (1957); Romero v. Chief of Staff, A F P ,
170 S C R A 408 (1989); Reyes v. Judge Camilon, 192 S C R A 445 (1990).
139
Hernandez v. Albano, et al., 19 S C R A 95, January 25, 1967.
140
Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra;
Fortun v. Labang, et al., G.R. N o . L-38383, M a y 27, 1981, 104 S C R A 607.
141
D e Leon v. Mabanag, 70 Phil. 202.
142
P l a n a s v. Gil, 67 Phil. 62.
143
Young v. Rafferty, 33 Phil. 556; Yu Cong E n g v. Trinidad, 47 Phil. 385, 389.
112
144
f. W h e n double jeopardy is clearly apparent;
145
g. W h e r e the court has no jurisdiction over the offense;
146
h. W h e r e it is a case of persecution rather than prosecution;
i. W h e r e the charges are manifestly false and motivated by

147
the lust for v e n g e a n c e ;
j. W h e n there is clearly no prima facie case against the

148
accused and a motion to quash on that ground has been denied;
and
k. Preliminary injunction has been issued by the Supreme

149
Court to prevent the threatened unlawful arrest of petitioners.
12. O t h e r C a s e s W h e r e C r i m i n a l P r o s e c u t i o n s W e r e
Enjoined
150
a. Yu Cong Eng v. Trinidad, where the constitutionality of
the Chinese Book K e e p i n g L a w was questioned.
151
b. Ang v. Castro, where the hearing of libel case was en-
joined by permanent injunction after the Supreme Court in a sepa-
rate case found the communication alleged to be libelous as privi-
152
leged and not libelous.
153
c. Primicias v. Municipality of Urdaneta, where a traffic
ordinance was found to be invalid.
144
S a n g a l a n g v. People and Avendia, 109 Phil. 1140.
146
L o p e z v. City Judge, 18 S C R A 616, October 29, 1966.
146
Rustia v. Ocampo, C A - G . R . N o . 4760, March 25, 1960.
147
Recto v. Castelo, 18 L.J. (1953), cited in Ranoa v. Alvendia, C A - G . R . No. 30720-
R, October 8,1962; Cf. Guingona, et al. v. City Fiscal, G.R. N o . L-60033, April 4,1984,
128 S C R A 577.
148
Salonga v. Pano, et al., 134 S C R A 438, February 18,1985, cited in Paderanga
v. Drilon, 196 S C R A 86, April 19, 1991.
149
Rodriguez v. Castelo, G.R. N o . L-6374, August 1, 1953, cited in REGALADO,
REMEDIAL LAW COMPENDIUM, p. 188,1988 Ed.; Lino Brocka, et al. v. Juan Ponce Enrile,
et al., 192 S C R A 183, Dec. 10,1990.
160
47 Phil. 385.
l61
136 S C R A 453 (1985).
l62
See also Justiniani v. Castillo, supra.
153
93 S C R A 462.
113
V O L . III
154
d. Guingona v. City Fiscal of Manila, where the fiscal was
restrained from further proceeding with criminal case found to be
155
civil in nature. But no injunction may issue to delay an investiga-
156
tion by the Ombudsman.
13. N o Injunction A g a i n s t O m b u d s m a n t o D e l a y Inves-

tigation
Under Section 14 of Republic A c t N o . 6770: No writ of injunc-
tion shall be issued by any court to delay an investigation being
conducted by the Ombudsman under this act, unless there is a prima
facie evidence that the subject matter of the investigation is outside
the jurisdiction of the office of the Ombudsman. Moreover, no court
shall hear any appeal or application for remedy against the decision
or findings of the Ombudsman except the Supreme Court, on pure
157
question of l a w .
14. T h e policy of n o n - i n t e r f e r e n c e w i t h O m b u d s m a n
The Court has consistently refrained from interfering with the

exercise: by the Ombudsman of his constitutionally mandated inves-
tigatory and prosecutory powers. Otherwise stated, it is beyond the
ambit of this Court to review the exercise of discretion of the O m -
budsman in prosecuting or dismissing a complaint filed before it.
Such initiative and independence are inherent in the Ombudsman
who, beholden to no one, acts as the champion of the people and
preserver of the integrity of the public service. Underlying policy of
non-interference was laid down in Ocampo I; Ombudsman and reit-
erated in the more recent case of Venus v. Desierto, to wit:
The rule is based not only upon respect for the investigatory
and prosecutory powers granted by the Constitution to the Office of
the Ombudsman but upon practicality as w e l l . Otherwise, the func-
tions of the courts will be grievously hampered by innumerable peti-
tions assailing the dismissal of investigatory proceedings conducted
by the Office of the Ombudsman with regard to complaints filed
before it, in much the same w a y that the courts would be extremely
154
128 S C R A 577.
1S5
Note: This was later on reconsidered (137 S C R A 597); Vide Lino Brocka v.
Enrile, supra.
166
Sec. 14, RA (6770).
167
H a g a d v. Hon. Gozo-Dadole, 66 S C A D 543, 251 S C R A 242, Dec. 12,1995.
114
swamped if he would be compelled to review the exercise of discre-

tion on the part of the fiscals or prosecuting attorneys each time
they file information in court or dismiss a complaint by private
158
complainant.
Nonetheless exceptions to the general rule have been recog-

159
nized.
I. TO RESTRAIN L A B O R CASES
15. I n j u n c t i o n s A g a i n s t the N L R C a n d L a b o r A r b i t e r
Article 254 of the Labor Code provides that no temporary or

permanent injunction or restraining order in any case involving or
growing out of labor disputes shall be issued by any court or other
entity except as otherwise provided in Articles 218 and 264 of the
Labor Code. U n d e r the first exception, Article 218(e) of the Labor
Code expressly confers upon the N L R C the power to "enjoin or re-
strain actual and threatened commission of any or all prohibited or
unlawful acts, or to require the performance of a particular act in
any labor dispute which, if not restrained or performed forthwith,
m a y cause grave or irreparable damage to any party or render inef-
fectual any decision in favor of such party x x x." T h e second excep-
tion, on the other hand, is when the labor organization or the em-
ployer engages in any of the "prohibited activities" enumerated in
Article 264.
Pursuant to Article 218(e), the coercive measure of injunction

may also be used to restrain an actual or threatened unlawful strike.
160
In the case of San Miguel Corporation v. NLRC, where the same
issue of N L R C ' s duty to enjoin an unlawful strike was raised, we
ruled that the N L R C committed grave abuse of discretion when it
denied the petition for injunction to restrain the union from declar-
ing a strike based on non-strikeable grounds. Further, in IBM v.
158
Velasco v. Casaclang, 294 S C R A 394 (1998); See also Alba v. Nitorreda, 254
S C R A 75.
169
T h e Court reiterated the 10 exceptions when criminal prosecution may be
enjoined, citing Posadas v. Ombudsman, 341 S C R A 388 (2000); Venus v. Desierto, 298
S C R A 196 (1998); Brocka v. Enrile, 192 S C R A 183 (1990), supra (1996); or when there
is grave abuse of discretion; See also Olairiz v. Sandiganbayan, 398 SCRA 732 (2003).
l60
304 S C R A 1 (1999).
115
V O L . III
161
NLRC, we held that it is the "legal duty and obligation" of the
N L R C to enjoin a partial strike staged in violation of the law. Fail-
ure promptly to issue an injunction by the public respondent was
likewise held therein to be an abuse of discretion.
A strike is considered as the most effective weapon in protect-
ing the rights of the employees to improve the terms and conditions
of their employment. However, to be valid, a strike must be pursued
within legal bounds. One of the procedural requisites that Article
263 of the Labor Code and its implementing Rules prescribe is the
filing of a valid notice of strike with the N C M B . Imposed for the
purpose of encouraging the voluntary settlement of disputes, this
requirement has been held to be mandatory, the lack of which shall
162
render strike i l l e g a l .
16. L i m i t a t i o n of A u t h o r i t y of L a b o r A r b i t e r to I s s u e
Writs o f P r e l i m i n a r y I n j u n c t i o n
The authority of Labor Arbiter to issue writs of preliminary

injunction is limited only to labor disputes and does not extend to
civil disputes such as the enforcement of loan agreement which in-
volves a debtor-creditor relationship founded on a contract of loan
and does not in any w a y concern employer-employee relationship.
This should be enforced through a separate civil action in regular
163
courts and not before the labor arbiter.
17. The Innocent Bystander rule
Petitioner asserts that its status as an "innocent bystander"

with respect to the labor dispute between Philtread and the Union
entitles it to a writ of injunction from the civil courts and that the
appellate court erred in not upholding its corporate personality as
independent of Philtread's.
In Philippine Association of Free Labor Unions (PAFLU) v.

164
Cloribel, the Court, through Justice J.B.L. Reyes, stated the "inno-
cent by-stander" rule as follows:
161
198 S C R A 586 (1991).
162
S a n Miguel Corporation v. National Labor Relations Commission, Second
Division; Haw at Buklod ng M a n g g a g a w a ( I B M ) , 403 S C R A 418, June 10, 2003, J.
Azcuna.
1 6 3
N D C Guthrie Plantations, Inc. v. N L R C , 362 S C R A 416, August 9, 2001.
164
27 S C R A 465(1969).
116
T h e right to picket as a means of communicating the facts of a

labor dispute is a phase of the freedom of speech guaranteed by the
constitution. If peacefully carried out, it cannot be curtailed even in
the absence of employer-employee relationship.
T h e right is, however, not an absolute one. W h i l e peaceful

p i c k e t i n g is entitled to p r o t e c t i o n as an e x e r c i s e of free
speech, w e b e l i e v e the c o u r t s a r e not w i t h o u t p o w e r t o con-
fine o r localize the s p h e r e o f c o m m u n i c a t i o n o r the demon-
stration to the p a r t i e s to the l a b o r dispute, i n c l u d i n g those
w i t h r e l a t e d interest, a n d t o i n s u l a t e establishments o r per-
sons w i t h n o i n d u s t r i a l c o n n e c t i o n o r h a v i n g interest totally
f o r e i g n t o the context o f the d i s p u t e . T h u s the r i g h t m a y b e
r e g u l a t e d a t the i n s t a n c e o f t h i r d p a r t i e s o r "innocent by-
standers" if it a p p e a r s that the i n e v i t a b l e result of its exer-
cise is to create an i m p r e s s i o n that a l a b o r dispute w i t h w h i c h
they h a v e n o c o n n e c t i o n o r interest exists b e t w e e n them a n d
the p i c k e t i n g u n i o n o r constitute a n i n v a s i o n o f their rights.
In one case decided by this Court, we upheld a trial court's injunc-
tion prohibiting the union from blocking the entrance to a feed mill
located within the compound of a flour mill with which the union
had a dispute. Although sustained on a different ground, no connec-
tion was found between the two mills owned by two different corpo-
rations other than their being situated in the same premises. It is to
be noted that in the instances cited, peaceful picketing has not been
totally banned but merely regulated. A n d in one American case, a
picket by a labor union in front of a motion picture theater with
which the union had a labor dispute was enjoined by the court from
being extended in front of the main entrance of the building housing
the theater wherein other stores operated by third persons were
located." (Emphasis added)
Thus, an "innocent by-stander," who seeks to enjoin a labor
strike, must satisfy the court that aside from the grounds specified
in Rule 58 of the Rules of Court, it is entirely different from, without
any connection whatsoever to, either party to the dispute and, there-
fore, its interests are totally foreign to the context thereof. For in-
165
stance, in PAFLU v. Cloribel, this Court held that Wellington and
l66
Supra.
117
V O L . III
Galang were entirely separate entities, different from, and without

any connection whatsoever to, the Metropolitan Bank and Trust
Company, against whom the strike was directed, other than the
incidental fact that they are the bank's landlord and co-lessee housed
in the same building, respectively. Similarly, in Liwayway Publica-
166
tions, Inc. v. Permanent Concrete Workers Union, the Court ruled
that Liwayway was an "innocent by-stander" and Liwayway's only
connection with the employer company was the fact that both were
situated in the same premises.
Although, the corporate fiction may be disregarded where it is

used to defeat public convenience, justify wrong, protect fraud, de-
fend crime, or where the corporation is sued as a mere alter-ego or
business conduit," it is not these standards but those of the "inno-
cent bystander" rule which govern whether or not Petitioner is
entitled to an injunctive writ. Since petitioner is not an "innocent
bystander," the trial court's order is a patent nullity, the trial court
167
having no jurisdiction to issue the w r i t of Injunction.
Authority of R e g u l a r Courts to Issue T R O or Prelimi-

n a r y Injunction A g a i n s t E n f o r c e m e n t o f L A B O R A r b i t e r o r
N L R C Decision
A r e regular courts authorized to issue T R O ' s or Writs of Pre-

liminary Injunction to restrain a levy on execution pursuant to a
final judgment of the labor court made on property claimed by a
stranger to the labor case?
168
1. National Mines & Allied Workers' Union v. Vera; and
169
2. Santos v. Bayhon;
166
108 S C R A 161 (1981).
1 6 7
M S F Tire and Rubber, Inc. v. Court of Appeals and Philtread Tire Workers'
Union, 311 S C R A 784, August 5, 1999, J. Mendoza.
168
133 S C R A 259, 268, November 19, 1984; Second Division, Justice Cuevas
(Ponente) with Makasiar (Chairman), Aquino, Concepcion, Jr., A b a d Santos and Escolin,
J J., concurring.
169
199 S C R A 521, July 23, 1991; First Division, Grino-Carolina, J. (Ponente)
with Narvasa (Chairman), Cruz, Gancayco and Medialdea, J J., concurring.
118
answered the question in the affirmative; while

170
1. Guimoc v. Rosales;
171
2. Delaventures Resources, Inc. v. Cabatu and
172
3. Nova v. Judge Sancho Dames.
answered the question in the negative under the principle of non-

interference.
No court has authority to interfere by injunction with the judg-

173
ment of another court of coordinate jurisdiction. T h e various
branches of the R T C of a province or city, having as they do the same
or equal authority and exercising as they do concurrent and coordi-
nate jurisdiction, should not, cannot, and are not permitted to inter-
fere with the other branches' cases, much less with their orders or
174
judgments by means of injunction.
T h e principle is applicable to regulatory commissions or quasi-

judicial bodies of equal rank w i t h the Regional Trial Court. Thus,
courts cannot interfere with the order of a regulatory commission
175
which is co-equal b o d y or to judgments or final orders of labor
courts. T h e C F I has no jurisdiction to restrain enforcement of judg-
ment rendered by a labor court. Otherwise, this will in effect curtail
176
the powers vested by l a w w i t h the industrial labor agency.
1 7 0
G . R . N o . 89982, Sept. 9,1991, 201 S C R A 468; First Division, Grino-Carolina,
J. (Ponente) with N a r v a s a (Chairman), Cruz, Gancayco and Medialdea, J J., concur-
ring.
171
327 S C R A 521 (2000), March 9,2000; Quisumbing, J. (Ponente) with Bellosillo
(Chairman), Mendoza, Buena and De Leon, Jr., JJ., concurring.
1 7 2
A . M . RTJ-00-1574, March 28, 2001, 355 S C R A 483, Pardo, J. (Ponente), with
Davide, Jr. (Chairman), Kapunan, and Ynares-Santiago, JJ., concurring.
1 7 3
N g o B u n Tiong v. Judge Sayo, 163 S C R A 237, June 30, 1988; Cojuangco v.
Villegas, 184 S C R A 374.
174
P a p e r Industries Corporation of the Phils, v. I A C , G.R. No. 71365, June 18,
1987, 151 S C R A 161; Republic v. Judge Reyes, 155 S C R A 313 (1987), 161 S C R A 545;
Almazar v. Cenzon, G.R. N o . 46188, M a y 28, 1988, 161 S C R A 545; Mercado v. Ubay,
G.R. N o . L-35830, July 24, 1990; See also Gutierrez v. Court of Appeals, 193 SCRA
437; Darwin v. Tokonaga, 197 S C R A 442 (1991); Prudential Bank v. Gapultos, G.R.
No. L-41835, Jan. 19, 1990, 181 S C R A 159; Phil. National Bank v. Pineda, 197 S C R A
1.
1 7 5
N E A v. Mendoza, 138 S C R A 632; Pineda v. Lantin, 6 S C R A 757 (1962); Phil-
ippine Pacific Fishing Co. v. Luna, 112 S C R A 604 (1982).
176
Kaisahan ng mga Magsasaka v. La Campana, et al. v. Sarmiento, 133 SCRA
220.
119
V O L . III
Limitation of P r i n c i p l e of N o n - i n t e r f e r e n c e
The principle is that the power of a court in the execution of its
judgment extends only over properties unquestionably belonging to
177
the judgment debtor. This limitation applies even to writs of ex-
ecution issued by labor arbiters pursuant to a judgment in a labor
case. The sheriff cannot levy upon and execute against property not
belonging to the judgment debtor in the labor case. Injunction in an
ordinary court is the proper remedy to stop NLRC sheriff. Ordinary
courts may issue injunction against sheriff trying to execute a deci-
sion of labor court against person not party in labor case where a
178
third-party claimant is involved.
Thus, the doctrine of non-interference or principle of judicial

179
stability does not apply where a third party claimant is i n v o l v e d .
The sheriff cannot levy upon and execute against property not be-
longing to the judgment debtor in a labor case. W h e n the sheriff
acting beyond the bounds of his authority seizes a stranger's prop-
erty, the writ of injunction, which is issued to stop the auction sale of
that property, is not an interference with the writ of execution issued
by another court because the writ of execution was improperly imple-
mented by the sheriff. Under that writ, he could attach the property
of the judgment debtor. He is not authorized to l e v y upon the prop-
180
erty of the third party claimant.
181
T h e Supreme Court in Pucan v. Bengzon held that the crite-
rion in determining whether or not the regular court m a y validly
exercise its jurisdiction is whether the acts complained of arose out
of, or are connected or interwoven with the cases which fall within
the exclusive jurisdiction of the labor arbiter or the National Labor
182
Relations Commission.
The rule appears to be well-settled that when the sheriff acting

beyond the bounds of his authority seizes a stranger's property, the
177
Special Services v. Centro La Paz, 121 S C R A 748.
178
National Mines and Allied Workers Union v. Vera, 133 S C R A 259.
179
Traders Royal Bank v. I A C , 133 S C R A 141 (1984).
180
National Mines & Allied Workers' Union v. Vera, 133 S C R A 259 (1984); Santos
v. Bayhon, G.R. N o . 88643, July 23, 1991,199 S C R A 521.
181
155 S C R A 692 (1987).
1 8 2
A t page 701; See also Kaisahan ng mga M a n g g a g a w a sa La C a m p a n a v.
Sarmiento, 133 S C R A 220, 233 (1984).
120
writ of injunction, which is issued to stop the auction sale of that

property is not an interference with the writ of execution issued by
another court because the writ of execution was improperly imple-
183
mented by the sheriff.
WITHOUT REFERRING TO THE FOREGOING RULINGS

T H R E E S U B S E Q U E N T D E C I S I O N S O F T H E FIRST A N D SEC-
OND DIVISION OF THE SUPREME COURT APPEAR TO
H A V E D E P A R T E D T H E R E F R O M , VIZ.:
184
1. Guimoc v. Rosales;
185
2. Delaventures Resources, Inc. v. Cabatu;
186
3. Nova v. Judge Sancho Dames;
In all these three ( 3 ) cases, the issue of whether or not a regu-

lar court m a y interfere by injunction to restrain the enforcement of a
w r i t of execution of a judgment of the labor court made on property
claimed by a third party, was answered in the negative.
T h e Supreme Court speaking thru the first and second divi-

sions cited Article 254 of the Labor Code (prohibiting the issuance of
an injunction in a labor case) and Section 2, Rule VI of the Manual of
1 8 7
Instruction for Sheriffs of the N L R C , and held that a civil court
may not interfere by injunction with the execution of a final and
executory judgment of the N L R C even if a third-party claim is in-
volved. "Whatever irregularities that attended the issuance of the
alias w r i t of execution should be referred to the same administrative
183
National Mines & Allied Workers' Union v. Vera, 133 S C R A 259 (1984).
1 8 4
G . R . N o . 89982, Sept. 9,1991, 201 S C R A 468.
185
327 S C R A 521 (2000), March 9, 2000.
1 8 6
A . M . RTJ-00-1574, March 28, 2001, 355 S C R A 483.
187a
Section 2. Proceedings. If property levied upon be claimed by any person
other than the losing party or his agent, such person shall make an affidavit of his
title thereto or right to the possession thereof, stating the grounds of such right or
title and shall file the same with the sheriff and copies thereof served upon the Labor
Arbiter or proper officer issuing the writ and upon the prevailing party. Upon receipt
of the third party claim, all proceedings with respect to the execution of the property
subject of the third party claim shall automatically be suspended and the Labor Arbi-
ter or proper officer issuing the writ shall conduct a hearing with due notice to all
parties concerned and resolve the validity of the claim within ten (10) working days
from receipt thereof and his decision is appealable to the Commission within ten (10)
working days from notice, and the Commission shall likewise resolve the appeal within
n
the same period. (Italics provided).
121
V O L . III
tribunal which rendered the decision. Despite finality of the decision

of the Minister of Labor, he not the regular courts, retained control
188
over its execution and implementation."
The court held that a third-party claim should be filed with the
labor arbiter and if its denied, the remedy is appeal to the N L R C not
to the R T C . By filing a claim with the Labor Arbiter the third-party
claimant submitted himself to the jurisdiction of the labor arbiter
against whose judgment a timely appeal should have been filed and
since no such appeal was filed the judgment of the labor arbiter
finding the third party claim to be without merit has become final
189
and executory.
190
4. In Deltaventures Resources, Inc. u. Cabatu, the court
held that the complaint was in effect a motion to quash the w r i t of
execution of a decision rendered on a case properly within the juris-
diction of the Labor Arbiter, to wit: Illegal Dismissal and Unfair
Labor Practice. Considering the factual setting, it is then logical to
conclude that the subject matter of the third party claim is but an
incident of the labor case, a matter beyond the jurisdiction of re-
gional trial courts. Petitioner failed to realize that by filing its third-
party claim with the deputy sheriff, it submitted itself to the juris-
diction of the Commission acting through the Labor Arbiter. It failed
to perceive the fact that what it is really controverting is the deci-
sion of the Labor Arbiter and not the act of the deputy sheriff in
executing said order issued as a consequence of said decision ren-
dered. T h e court further held that:
T h e broad powers granted to the Labor A r b i t e r and to the

National Labor Relations Commission by Articles 217, 218 and 224
of the Labor Code can only be interpreted as vesting in them juris-
diction over incidents arising from, in connection w i t h or relating to
labor disputes, as the controversy under consideration, to the exclu-
sion of the regular courts.
Moreover, it must be noted that the Labor Code in Article 254

explicitly prohibits issuance of a temporary or permanent injunction
or restraining order in any case involving or growing out of labor
188
P u c a n v. Bengzon, 155 S C R A 692, 693.
189
Guimoc v. Rosales, 201 S C R A 468, Sept. 9, 1991.
190
327 S C R A 521 (2000), March 9, 2000.
122
disputes by any court or other entity (except as otherwise provided

in A r t s . 218 and 264). As correctly observed by court a quo, the main
issue and the subject of the amended complaint for injunction
are questions interwoven with the execution of the Commission's
decision. No doubt the aforecited prohibition in Article 254 is appli-
cable.
191
5. In Nova v. Judge Sancho Dames, the court in holding
R T C Judge Dames guilty of gross ignorance of the l a w for issuing a
T R O restraining the N L R C Sheriff from conducting the scheduled
public auction of real property which allegedly is conjugal property
of the petitioners w h o are not judgment debtors in the labor case,
did not refer to the N L R C S h e r i f f s Manual but held that regular
courts have no jurisdiction to hear and decide questions which arise
and are incidental to the enforcement of decisions, orders or awards
rendered in labor cases by appropriate officers and tribunals of the
Department of Labor and Employment. Corollarily, any controversy
in the execution of the judgment shall be referred to the tribunal
which issued the w r i t of execution since it has the inherent power to
control its own processes in order to enforce its judgments and or-
ders."
OBSERVATIONS:
Did the foregoing decisions of the divisions of the Supreme

Court modify or abandon earlier rulings that the rule of non-inter-
ference does not apply when a third party claim is involved in con-
flicts between the Labor Arbiter and the regular courts as decided in
the earlier cases above adverted to?
A. Jurisdiction of L a b o r Arbiters
1. T H E L A B O R C O U R T IS A S P E C I A L C O U R T OF
L I M I T E D J U R I S D I C T I O N . H E N C E , ITS EXCLUSIVE
J U R I S D I C T I O N I N T H E E N F O R C E M E N T O F ITS DECISIONS
IS LIMITED TO CASES G R O W I N G OUT OF INCIDENTAL TO
A LABOR DISPUTE
T h e Labor Court is a special court of limited jurisdiction.
191
358 S C R A 483, March 28, 2001.
123
V O L . III
Even under the amendatory law ( R . A . N o . 6715) not every

claim of an employee against an employer is cognizable by the labor
arbiter. R . A . N o . 6715, which amended the jurisdiction of the labor
arbiter, did not overturn earlier decisions of the Court drawing a
line between cases that are within the jurisdiction of the labor arbi-
192
ter and those cognizable by the regular court.
193
The Supreme Court in Pucan v. Bengzon held that the crite-
rion to be used in determining whether or not the regular court may
validly exercise its jurisdiction is: whether the acts complained of
arose out of, or are connected or interwoven with the cases which fall
within the exclusive jurisdiction of the labor arbiter or the National
Labor Relations Commission.
B. Where There is no L a b o r Dispute Between Parties

194
Ordinary Court has Jurisdiction
2. THE PRINCIPLE THAT WHATEVER IRREGULARI-

TIES A T T E N D E D THE ISSUANCE OF A WRIT OF
EXECUTION SHOULD BE REFERRED TO THE SAME
T R I B U N A L W H I C H R E N D E R E D T H E D E C I S I O N (Citing
P u c a n vs. Bengzon, 155 S C R A 6 9 2 , 6 9 3 ) H A S N O A P P L I C A T I O N
W H E N A STRANGER TO THE CASE IS INVOLVED
Holding that whatever irregularities attended the issuance and

execution of the alias w r i t of execution should be referred to the
same administrative tribunal which rendered the decision, the
Guimoc, Deltaventures and Dames court cited the case of Pucan v.
195
Bengzon, the same case relied upon by the Deputy Court Adminis-
196
trator in Nova v. Judge Dames Pucan v. Bengzon is clearly inap-
posite but supports the principle that when there is no Labor Dis-
pute between the parties, it is the regular courts that has jurisdic-
tion. A reading of Pucan will disclose that the case does not involve a
third-party claim but the same parties involved in the labor dispute.
192
G e o r g Grotjahn G M B H & Co. v. Isnani, 235 S C R A 216, decided on August 10,
1994, after the effectivity of R.A. N o . 6715.
193
155 S C R A 692(1987).
194
Philippine Association of Free Labor Union v. Emilio Salas, G.R. N o . L-39084,
Feb. 23,1988,158 S C R A 53.
195
155 S C R A 692, 700 (1987).
196
Supra.
124
191
Pucan v. Bengzon in fact, decreed that in determining
whether or not the regular court may validly exercise its jurisdiction
it must be determined whether the acts complained of arose out of,
or are connected or interwoven with the cases which fall within the
exclusive jurisdiction of the labor arbiter or the National Labor Re-
lations Commission.
3. T H E L A B O R C O D E I N A R T I C L E 254 E X P L I C I T L Y
PROHIBITS ISSUANCE OF TEMPORARY OR PERMANENT
I N J U N C T I O N O R R E S T R A I N I N G O R D E R I N A N Y CASE IN-
VOLVING OR GROWING OUT OF LABOR DISPUTES BY ANY
COURT
4. A THIRD-PARTY C L A I M A N D AN INJUNCTION
AGAINST THE ENFORCEMENT OF THE LABOR COURTS
DECISION A R E N O T INCIDENTS OR QUESTIONS INTER-
WOVEN WITH LABOR DISPUTE
T h e Guimoc, Deltaventures and the Dames were not cases "in-

volving or growing out of a labor dispute. T h e labor dispute had
already been terminated. T h e principal relief sought had to be re-
solved not by the Labor Code or other labor relations statute nor by
a collective bargaining agreement but by civil law in general.
T h e settled rule is where the claim to the principal relief sought

is to be resolved by the general civil law, the jurisdiction over the
dispute belongs to the regular courts. In such situations, the resolu-
tion of the dispute requires expertise not in labor management rela-
tions nor in w a g e structures and other terms and conditions of em-
ployment, but rather in the application of the general civil law. Such
claims fall outside the area of competence or expertise ordinarily
ascribed to Labor Arbiters and the N L R C and the rationale for grant-
198
ing jurisdiction over such claims to these agencies disappears.
197
155 S C R A 692(1987).
198
S a n Miguel Corporation v. National Labor Relations Commission, G.R. No.
80774, M a y 31, 1988, 161 S C R A 719, citing Molave Motor Sales, Inc. v. Laron, 129
S C R A 485 (1984); Singapore Airlines v. Pano, 122 S C R A 671 (1983) and Medina v.
Castro-Bartolome, 116 S C R A 597 (1982); See also Basaya, Jr. v. Militante, 156 SCRA
299(1987).
125
V O L . III
5. THE R E M E D Y OF A T H I R D - P A R T Y C L A I M A N T
AGAINST THE ENFORCEMENT OF THE L A B O R C O U R T S
DECISION TO FILE A THIRD-PARTY C L A I M W I T H THE
LABOR COURT PURSUANT TO SECTION 2, RULE VI OF
THE M A N U A L OF INSTRUCTIONS FOR SHERIFFS OF THE
N L R C A D O P T E D B Y THE C O M M I S S I O N P U R S U A N T T O ITS
RULE-MAKING AUTHORITY IS LIMITED TO CASES GROW-
ING OUT OF OR INTERWOVEN WITH A LABOR DISPUTE
199
In Rodriguez v. Court of Appeals, the Court pointed out that
the remedy of a third party in lieu of filing a mere motion in the
same court which issued the writ for the annulment of the sale, is to
bring a reivindicatory action if he thinks he has a superior right
than the buyer. The Court pointed to the ruling in Bayer Philip-
200
pines, Inc. v. Agana, that the claim of ownership of a third party
over properties levied upon for execution of a judgment presents no
issue for determination by the court issuing the w r i t of execution.
When a property levied upon by the sheriff pursuant to a w r i t of
execution is claimed by third person in a sworn statement of owner-
ship thereof, as prescribed by the rules, an entirely different matter
for adjudication arises. A n d dealing as it does with the all important
question of title, it is reasonable to require the filing of proper plead-
ings and the holding of a trial on the matter in v i e w of the require-
ments of due process.
In other words, the rights of a third party claimant over certain

properties levied upon by the Sheriff to satisfy the judgment m a y
not be taken up in the case where such claims are presented but in a
201
separate and independent action instituted by the claimants.
6. THE REMEDY U N D E R THE N L R C SHERIFF'S

MANUAL DOES NOT BAR A N Y OTHER REMEDY A N D THE
DECISION OF THE LABOR ARBITER IS O N L Y A P P E A L A B L E
TO THE NLRC A N D DOES NOT CONSTITUTE RES JUDICATA
The Manual of Instructions for Sheriffs of the N L R C adopted

and promulgated pursuant to Article 218(a) of the Labor Code, as
199
261 S C R A 423(1996).
200
63 S C R A 355(1975).
201
Rodriguez v. Court of Appeals, 261 S C R A 423,428 (1996), citing Bayer Philip-
pines v. Agana, supra.
126
amended, is necessarily circumscribed by the special and limited

jurisdiction of the labor arbiters or N L R C to labor disputes or inci-
dent thereto. Its scope cannot extend to matters which are purely
civil in nature such as the resolution of disputes over ownership.
Jurisdiction is conferred by law. T h e Manual of Instructions of Sher-
iffs of the N L R C for enforcement of decisions of the N L R C does not
confer on the latter authority to resolve with finality disputes that
are not connected with or interwoven with a labor dispute. The
N L R C is only authorized to promulgate rules to carry out the pur-
poses of the act, viz., to exercise jurisdiction over cases involving or
growing out of labor disputes. It is not authorized to confer jurisdic-
tion on itself and thereby divest the regular courts of general juris-
diction on matters which the l a w has conferred on the regular courts.
T h e spring cannot rise higher than its source.
T h e filing of a third-party claim in the main case is permitted

by the rules and jurisprudence on the matter without necessarily
submitting the third-party claimant to the court's jurisdiction. In
doing so, the third-party claimant merely invokes the supervisory
power of the court which authorized the execution. T h e denial, how-
ever, of the third-party claim to property levied upon cannot operate
to bar a subsequent independent action of the claimant to establish
his right to the property even if it fails to appeal from the order
202
denying his original third-party c l a i m .
T h e third-party claimant may file a separate reivindicatory

action against the same execution creditor or the purchaser of the
property at the sale at public auction. He may also file a complaint
for damages to be charged against the bond filed by the judgment
creditor in favor of the sheriff. Such reinvindicatory action is re-
served to the third-party claimant by Section 16, Rule 39 of the
Rules of Court despite the disapproval of its claim by the court itself.
A p p e a l is not proper in the case, nor a w r i t of certiorari or
203
prohibition.
2
2 0 n g v. Tating, April 1987, 149 S C R A 265.
203
Bobis v. Provincial Sheriff of Camarines Norte, 121 S C R A 28.
127
V O L . III
C u m u l a t i v e R e m e d i e s of a T h i r d - P a r t y C l a i m a n t
204
Section 16, Rule 39 of the 1997 Rules of Civil Procedure, pro-
vides the remedies available to a third-party claimant. These were
206
lucidly restated in Sy and Tan v. Discaya, to wit:
a. A third person whose property was seized by a sheriff to
answer for the obligation of the judgment debtor may invoke the
supervisory power of the court which authorized such execution.
Upon due application by the third person and after summary hear-
ing, the court may command that the property be released from the
mistaken levy and restored to the rightful owner or possessor. W h a t
said court can do in these instances, however, is limited to a deter-
mination of whether the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of judgment, more specifi-
cally, if he has indeed taken hold of property not belonging to the
judgment debtor. T h e court does not and cannot pass upon the ques-
tion of title of the property, with any character of finality. It can treat
of the matter only insofar as m a y be necessary to decide if the sheriff
has acted correctly or not. It can require the sheriff to restore the
property to the claimant's possession if warranted by the evidence.
However, if the claimant's proofs do not persuade the court of

the validity of his title or right of possession thereto, the claim w i l l
be denied.
b. Independent of the above-stated recourse, a third-party

claimant may also avail himself of the remedy known as "terceria"
provided for in Section 17 (now Sec. 16), Rule 39, by serving on the
officer making the levy an affidavit of his title and a copy thereof
2 0 4
S E C . 16. Proceedings where property claimed by third person. If the prop-
erty levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same upon the officer making
the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee, on demand of the officer, files a bond
approved by the court to indemnify the third-party claimant in a sum not less than
the value of the property levied on. In case of disagreement as to such value, the same
shall be determined by the court issuing the writ of execution. No claim for damages
for the taking or keeping of the property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120) days from the date of the
filing of the bond.
206
181 S C R A 378, January 23,1990.
128
upon the judgment creditor. T h e officer shall not be bound to keep

the property, unless such judgment creditor or his agent, on demand
of the officer, indemnifies the officer against such claim by a bond in
a sum not greater than the value of the property levied on. An action
for damages m a y be brought against the sheriff within one hundred
twenty (120) days from the filing of the bond.
c. T h e aforesaid remedies are nevertheless without preju-

dice to "any proper action'' that a third-party claimant may deem
suitable to vindicate "his claim to the property." Such a "proper
action" is, obviously, entirely distinct from that explicitly prescribed
in Section 16 of Rule 39, which is an action for damages brought by a
third-party claimant against the officer within one hundred twenty
(120) days from the date of the filing of the bond for the taking or
keeping of the property subject of the terceria"
d. T h e remedies above-mentioned are cumulative and may

be resorted to by a third-party claimant independent of or sepa-
rately from and without need of availing of the others. If a third-
party claimant opted to file a proper action to vindicate his claim of
ownership, he must institute an action, distinct and separate from
that in which the judgment is being enforced, with the court of
competent jurisdiction even before or without need of filing a claim
in the court which issued the writ, the latter not being a condition
sine qua non for the former. In such proper action, the validity and
sufficiency of the title of the third-party claimant will be resolved
and a w r i t of preliminary injunction against the sheriff may be
206
issued.
7. THE ISSUANCE OF A TRO OR AN INJUNCTION

ISSUED BY THE R E G U L A R COURT AGAINST THE EN-
FORCEMENT OF A DECISION OF THE L A B O R COURT
AGAINST A S T R A N G E R TO THE CASE IS N O T AN INTER-
FERENCE W I T H THE L A B O R COURT'S DECISION
W h e n the N L R C sheriff acting beyond the bounds of his au-
thority seizes a stranger's property not belonging to the judgment
debtor in the labor case, the writ of injunction, which is issued to
stop the auction sale of that property is not an interference with the
206
Supra.
129
V O L . III
writ of execution issued by another court because the writ of execution

was improperly implemented by the sheriff. Under that writ, he could
attach the property of the judgment debtor. He is not authorized to
207
levy upon the property of the third-party claimant.
The proper action "referred to in Section 16, Rule 39 is and
should be an entirely separate and distinct action from that in which
execution has issued, if instituted by a stranger to the latter
99206
suit. and the court may issue a w r i t of preliminary injunction
against the sheriff enjoining him from proceeding with the execution
209
sale." Upon the other hand, if the claim of impropriety on the part
of the sheriff in the execution proceedings is made by a party to the
action, not a stranger thereto, any relief therefrom m a y be applied
for with, and obtained from, only in the executing court; and this is
210
true even if a new party has been impleaded in the suit."
Such an independent action filed w i t h the court other than the

one which issued the w r i t of execution cannot be considered as an
encroachment upon the jurisdiction of a co-equal court. W h i l e it is
true that property in custody of the l a w m a y not be interfered with,
without the permission of the proper court, this rule is confined to
cases where the property belongs to the defendant or one in which
the defendant has proprietary interests. But w h e n the Sheriff acting
beyond the bounds of his office seizes a stranger's property, the rule
does not apply and interference w i t h his custody is not interference
211
with another court's custody. Thus, a Caloocan court can enjoin
the sheriff from selling properties he levied upon to satisfy the judg-
212
ment of C F I of Manila, filed by a third-party claimant.
213
8. Finally, Yupangco Cotton Mills, Inc. u. Court of Appeals,
put the matter at rest, reiteratated Section 16 of Rule 39, and the
foregoing d o c t r i n e s thereunder upholding the authority of the regu-
lar courts to restrain enforcement of decisions of the labor arbiter or
2 0 7
N a t i o n a l Mines & Allied Workers' Union v. Vera, 133 S C R A 259 (1984).
208
Ong v. Tating, 149 S C R A 205, cited in Estonia v. Ataman, G.R. N o . 111547,
Jan. 27,1997, 266 S C R A 627.
209
Ong v. Tating, supra.
2 1 0
O n g v. Tating, supra, at p. 279, italics supplied, citing Rejuso v. Estipona.
211
Estonina v. Court of Appeals, G.R. N o . 111547, Jan. 27,1997, 266 S C R A 627.
212
A r a b a y v. Salvador, 82 S C R A 138.
213
373 S C R A 451 (January 16, 2002).
130
National Labor Relations Commission where the Sheriff of the N L R C

levied upon the properties of petitioner as a consequence of the
decision rendered by the said Commission in a labor case, despite
214
the fact that the petitioner was not a party in the labor case.
215
T h e Court reiterated Santos v. Bayhon upholding the issu-
ance of a temporary restraining order against Labor Arbiter Diosana
and the N L R C Sheriff from issuing a certificate of sale over the
levied property holding that:
. . T h e power of the N L R C to execute its judgments

extends only to properties unquestionably belonging to the judg-
216
ment debtor."
"The general rule that no court has the power to interfere by

injunction w i t h the judgments or decrees of another c o i n ! with con-
current or coordinate jurisdiction possessing equal power to grant
injunctive relief, applies only w h e n no third-party claimant is
217
involved. When a third-party, or a stranger to the action,
asserts a claim over the property levied upon, the claimant
may vindicate his claim by an independent action in the proper
civil court which may stop the execution of the judgment on
property not belonging to the judgment debtor." (Emphasis ours)
A separate civil action for recovery of ownership of the property

would not constitute interference w i t h the powers or processes of the
Arbiter and the N L R C which rendered the judgment to enforce and
execute upon the levied properties. T h e property levied upon being
that of a stranger is not subject to levy. Thus, a separate action for
recovery, upon a claim and prima facie showing of ownership by the
petitioner, cannot be considered as interference."
T h e Yupangco decision appears to have laid to rest the author-
ity of the regular courts to issue a writ of preliminary injunction to
restrain the enforcement of a decision of the Labor Arbiter or the
National Labor Relations Commission by giving an affirmative an-
swer to the question.
214
F i r s t Division of the Supreme Court speaking thru Justice Pardo with the
concurrence of Chief Justice Davide, Jr., Puno, Kapunan and Santiago, J J.
215
Supra.
216
Special Servicing Corp. v. Centro La Paz, 121 S C R A 748.
2l7
T r a d e r s Royal Bank v. Intermediate Appellate Court, 133 S C R A 141 (1984).
131
V O L . III
J. TO RESTRAIN PUBLIC PROJECTS/INFRASTRUC-

TURES
A. Injunctions against p u b l i c projects
For the guidance of trial courts and the Court of Appeals, the
Supreme Court stressed that courts to which a losing bidder in a
public bidding involving public projects may come, must refrain from
granting temporary restraining orders or preliminary injunctions
on an ex parte basis. Where a restraining order or preliminary in-
junction is granted after hearing, courts must see to it that the
plaintiff or petitioner is required to post a bond in an amount rea-
sonably sufficient to compensate both public and private parties for
damages suffered by reason of the delay imposed upon the project
involved should the plaintiff be held not entitled to the restraining
218
order or preliminary injunction.
Furthermore, courts in such a situation should refrain from

issuing a restraining order or preliminary injunction save where
administrative remedies have been resorted to and exhausted and
the plaintiff with sufficient standing to sue has made out a strong
case of entitlement to such restraining order or preliminary injunc-
tion by a clear and convincing showing of arbitrary and capricious
219
agency action in palpable violation of public duty or private rights.
It is incumbent upon a court in such situation to see to it that

its processes are not being abused by a losing or disgruntled bidder
shopping around for sympathetic forum and seeking to paralyze a
public project already bidded out in the hope, perhaps of compelling
a rebidding of the project, or of otherwise promoting its own private
220
interest.
Concession contracts involving a public utility (for the provi-

sion of a coupon taxi service at the international airport) enjoy the
protective mantle of the decree "The discretion to accept or reject a
bid and award contracts is vested in the Government agencies en-
218
Reyes, etc., et al. v. Caneba, etc., et al., G.R. N o . 82218, 17 March 1988, En
banc, Minute Resolution.
2l9
Ibid.
220
Reyes, etc., et al. v. Caneba, etc., et al., G.R. N o . 82218, March 17, 1988, En
Banc, Minute Resolution.
132
Rule 58 PRELIMINARYINJUNCTION Sec. 3
221
trusted with that function." Furthermore, Sec. 1 of PD 1818 dis-
a
tinctly provides that [ n ] o court in the Philippines shall have juris-
diction to issue any restraining order, preliminary injunction x x x in
any case, dispute, or controversy involving x x x any public utility
operated by the government, including among others public utilities
for the transport of the goods or commodities x x x to prohibit any
person o r persons x x x from proceeding with, o r continuing the
execution or implementation of any such project, or the operation of
such public utility, or pursuing any lawful activity necessary for
such execution, implementation or operation." T h e Court stressed
that the provision expressly deprives courts of jurisdiction to issue
injunctive writs against the implementation or execution of con-
222
tracts for the operation of a public utility.
B. Injunction Against Infrastructure
1. N o I n j u n c t i o n A g a i n s t G o v e r n m e n t Infrastructures;
c e r t i o r a r i a l l o w e d as a r e m e d y .
As a rule, direct recourse to the Supreme Court is not allowed

unless there are special or important grounds for the issuance of
223 224
extraordinary w r i t s . In the case of Garcia v. Burgos, where pure
questions of l a w w e r e raised, the Court, mindful of R D . N o . 1818,
entertained a direct invocation of its jurisdiction to issue extraordi-
nary writs, realizing the serious consequences of delay in essential
225 226
government projects. So also, in Republic v. Silverio, a similar
case involving government infrastructure projects, the Court took
cognizance of an original action for Certiorari against a Regional
Trial Court.
2. I n f r a s t r u c t u r e projects defined. The Court in Repub-
227
lic of the Phils, v. Salvador Silverio and Big Bertha Construction,
held that:
^ B u r e a u Veritas v. Office of the President, G.R. No. 101678, 3 February 1992,

205 S C R A 705.
222G & S Transport Corporation v. C A , 382 S C R A 262, May 28,2002, J. Bellosillo.
223Uy v. Contreras, 237 S C R A 167, 170.
a ^ l S C R A 546(1998).
^ / d . , p. 578.
s*272 S C R A 280 (1997).
227
272 S C R A 280.
133
V O L . III
"The term 'infrastructure projects' means 'construction, im-

provement and rehabilitation of roads, and bridges, railways, air-
ports, seaports, communication facilities, irrigation, flood control and
drainage, water supply and sewage systems, share protection, power
facilities, national buildings, school buildings, hospital buildings,
and other related construction projects that form part of the
228
government capital investment."
Applying the principle ejusdem generis, "(2) For the various
plants and installations of the National Housing Corporation, for its
229
future expansion and for its staff and pilot housing development"
and "(5) For housing, resettlement sites and other uses necessary
and related to an integrated social and economic development of the
230
entire estate and environs, x x x " are "infrastructure projects."
The various plants and installations, staff and pilot housing devel-
opment projects, and resettlement sites related to an integrated
social and economic development of the entire estate are construc-
tion projects forming part of the government capital investment,
undertaken in compliance with the mandate of the Constitution for
the state to embark upon a continuing program of urban land reform
and housing envisioned to provide at affordable cost decent housing
and basic services to the unprivileged and homeless in urban centers
231
and resettlement areas.
R . A . N o . 8975 - A N A C T T O E N S U R E T H E E X P E D I T I O U S
IMPLEMENTATION AND COMPLETION OF INFRASTRUC-
TURE PROJECTS BY PROHIBITING L O W E R COURTS
FROM ISSUING TEMPORARY RESTRAINING ORDERS PRE-
LIMINARY INJUNCTIONS OR PRELIMINARY MANDATORY
22
*Ibid., pp. 286-287, citing Letter of Instruction N o . 1186, promulgated on Janu-
ary 13, 1982, 83 V L D 79; Philippine Ports Authority v. C A , 253 S C R A 213 (1996).
^Presidential Proclamation N o . 843.
230
Ibid.
231
Section 9, Article X I I I , 1987 Constitution; National Housing Authority v.
Honorable Mauro T. Allarde, G.R. N o . 106593, November 16, 1999, 318 S C R A 22, J.
Purisima. See also Sec. 21, R.A. 7227 only the Supreme Court has jurisdiction to grant
injunctive relief to enjoin the implementation of the projects for the conversion into
alternative productive uses of the military reservation. Allied Domecq Phil., Inc. v.
Villon, G.R. No. 152264, September 30,2004,439 S C R A 667; See also Philippine School
of Business Administration v. Tolentino-Merilo, 447 S C R A 442 (2004) holding L R T an
infrastructure project.
134
INJUNCTIONS PROVIDING PENALTIES FOR VIOLATION

T H E R E O F A N D F O R O T H E R P U R P O S E S , provides:
" S E C . 3. Prohibition on the Issuance of Temporary Re-

straining Orders, Preliminary Injunctions and Preliminary
Mandatory Injunctions. No court, except the Supreme Court,
shall issue any temporary restraining order, preliminary injunction
or preliminary mandatory injunction against the government, or
any of its subdivisions, officials or any person or entity, whether
public or private acting under the government direction, to restrain,
prohibit or compel the following acts:
( a ) Acquisition, clearance and development of the right-

of-way and/or site or location of any national government project;
( b ) Bidding or awarding of contract/project of the na-

tional government as defined under Section 2 hereof;
( c ) Commencement prosecution, execution, implemen-

tation, operation of any such contract or project;
(d) Termination or rescission of any such contract/project;

and
( e ) T h e undertaking or authorization of any other law-

232
ful activity necessary for such contract/project.
This prohibition shall apply in all cases, disputes or controver-
sies instituted by a private party, including but not limited to cases
filed by bidders involving such contract/project. This prohibition shall
not apply when the matter is of extreme urgency involving a constitu-
tional issue, such that unless a temporary restraining order is issued,
grave injustice and irreparable injury will arise. The applicant shall
2 3 2
S E C . 2. Definition of Terms. - ( a ) "National government projects" shall refer
to all current and future national government Infra structure, engineering works and
service contracts, including projects undertaken by governmentr-owned and controlled
corporations, all projects covered by Republic Act No. 6957, as amended by Republic
Act N o . 7718, otherwise known as the Build-Operate-and-Transfer Law, and other
related and necessary activities such as site acquisition, supply and/or installation of
equipment and materials, implementation, construction, completion, operation, main-
tenance, improvement, repair and rehabilitation, regardless of the source of funding.
(b) "Service contracts" shall refer to Infra structure contracts entered into by
any department, office or agency of the national government with private entities and
non-government organizations for services related or incidental to the functions and
operations of the department, office or agency concerned.
135
V O L . III
file a bond, in an amount to be fixed by the court, which bond shall

accrue in favor of the government if the court should finally decide
that the applicant was not entitled to the relief sought.
If after due hearing the court finds that the award of the con-
tract is null and void, the court may, if appropriate under the cir-
cumstances, award the contract to the qualified and winning bidder
or order a rebidding of the same, without prejudice to any liability
that the guilty party may incur under existing laws.
S E C 4. Nullity of Writs and Orders. A n y temporary re-
straining order, preliminary injunction or preliminary mandatory
injunction issued in violation of Section 3 hereof is void and of no
force and effect.
S E C 5. Designation of Regional Trial Courts. T h e Su-
preme Court may designate trial courts to act as commissioners
with the sole function of receiving facts of the case involving acquisi-
tion clearance and development of right-of-way for government in-
frastructure projects. The designated regional trial court shall within
thirty (30) days from the date of receipt of the referral, forwards its
findings of facts to the Supreme Court for appropriate action.
S E C 9. Repealing Clause. A l l laws, decrees, including

Presidential Decree N o s . 605, 1818 and Republic A c t N o . 7160, as
amended, orders, rules and regulations or parts thereof inconsistent
with this A c t are hereby repealed or amended accordingly.
K. TO RESTRAIN ELECTRIC UTILITY
Injunctions A g a i n s t E l e c t r i c U t i l i t y
42.b No Injunction against any private electric utility or rural

electric cooperative exercising the right an authority to disconnect
electric service unless there is prima facie evidence that the discon-
nection was made with evident bad faith or g r a v e abuse of authority,
in which case, the injunction or T R O shall be effective only upon the
filing of a cash bond or cashier's check equivalent to differential
billing; penalties and other charges or to the total value of the sub-
ject matter of the action. Such injunction or restraining order shall
automatically be refused or, if granted shall be dissolved upon filing
by the public utility of a counter bond similar in form and amount as
that above required.
136
W h e n e v e r such injunction is granted the court issuing it shall,

within ten (10) days from issuing it submit a report to the Supreme
233
Court setting forth in detail the grounds or reasons for its order.
S E C . 4. Verified application and bond for preliminary

injunction or temporary restraining order. A p r e l i m i n a r y
injunction or t e m p o r a r y restraining o r d e r m a y be granted
only w h e n :
( a ) T h e a p p l i c a t i o n i n the action o r p r o c e e d i n g i s veri-

fied, a n d s h o w s facts entitling the a p p l i c a n t to the relief de-
manded; and
( b ) U n l e s s e x e m p t e d b y the c o u r t , the a p p l i c a n t f i l e s
w i t h the c o u r t w h e r e the action or p r o c e e d i n g is p e n d i n g , a
b o n d e x e c u t e d t o the p a r t y o r p e r s o n e n j o i n e d , i n a n a m o u n t
to be fixed by the c o u r t , to the effect that the a p p l i c a n t w i l l
p a y t o s u c h p a r t y o r p e r s o n all d a m a g e s w h i c h h e m a y sus-
tain b y r e a s o n o f the i n j u n c t i o n o r t e m p o r a r y r e s t r a i n i n g
o r d e r i f the c o u r t s h o u l d f i n a l l y d e c i d e that the a p p l i c a n t
w a s not entitled thereto. U p o n a p p r o v a l o f the requisite b o n d ,
a w r i t of p r e l i m i n a r y i n j u n c t i o n shall be issued. (4a)
( c ) W h e n a n a p p l i c a t i o n f o r a w r i t o f p r e l i m i n a r y in-
j u n c t i o n or a t e m p o r a r y r e s t r a i n i n g o r d e r is i n c l u d e d in a
c o m p l a i n t or a n y i n i t i a t o r y p l e a d i n g , the case, if filed in a
multiple-sala c o u r t , shall b e r a f f l e d only after notice t o a n d
i n t h e p r e s e n c e o f t h e a d v e r s e p a r t y o r the p e r s o n t o b e
enjoined. In a n y event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons,
together w i t h a c o p y of the c o m p l a i n t or initiatory p l e a d i n g
a n d the applicant's affidavit a n d b o n d , u p o n the a d v e r s e party
in the P h i l i p p i n e s .
H o w e v e r , w h e r e the s u m m o n s c o u l d not b e s e r v e d per-
sonally or by substituted service despite diligent efforts, or
the a d v e r s e p a r t y is a r e s i d e n t of the P h i l i p p i n e s temporar-
ily a b s e n t t h e r e f r o m or is a n o n r e s i d e n t thereof, the r e q u i r e -
^ S e c . 9, R.A. 7832; Calleja v. Judge Santelices, A . M . No. RTJ-99-1443, March

14, 2000, 328 S C R A 61. See, however, REGALADO, REMEDIAL LAW COMPENDIUM, Vol. 1,
Sixth Revised Edition, pp. 650-651; Universal Motors Corporation Represented by
Gerardo M. Gelle v. Judge Francisco Rojas, Sr., A . M . N o . RTJ-03-2814, May 26, 2005.
137
V O L . III
ment of p r i o r or c o n t e m p o r a n e o u s service of s u m m o n s shall

not apply.
( d ) T h e application for a t e m p o r a r y r e s t r a i n i n g o r d e r
shall thereafter b e acted u p o n only after all p a r t i e s a r e h e a r d
in a summary hearing w h i c h shall be conducted within
twenty-four (24) h o u r s after the sheriff's r e t u r n of service
and/or the r e c o r d s a r e r e c e i v e d b y the b r a n c h selected b y
raffle a n d to w h i c h the r e c o r d s shall be t r a n s m i t t e d
immediately.
COMMENT:
Under the present Rule a preliminary injunction or temporary
restraining order may be granted only when:
( a ) T h e application in the action or proceeding is verified, and

shows facts entitling the applicant to the relief demanded; and
( b ) Unless exempted by the court, the applicant (instead of

plaintiff) files with the court where the action or proceeding is pend-
ing, a bond executed to the party or person enjoined, in an amount to
be fixed by the court, to the effect that the applicant w i l l pay to such
party or person all damages which he m a y sustain by reason of the
injunction threatening, or is attempting to do, if the court should fi-
nally decide that the applicant was not entitled thereto. Upon ap-
proval of the requisite bond, a writ of preliminary injunction shall be
issued.
Unless exempted by the court, a bond is now required even for

the issuance of a temporary restraining order. T h e r e must, therefore
be approval of the bond before the issuance of the w r i t of preliminary
injunction.
Explaining the need of a bond under the n e w rule even for the
issuance of a temporary restraining order, the Court stated:
"It is worthy to note that prior to the effectivity of the

1997 Rules of Civil Procedure, no bond was required for the
availment of a temporary restraining order. H o w e v e r , the
present Rules now regulate the issuance of temporary res-
training orders, not only by requiring a hearing, but also by
138
imposing a bond on the applicant to prevent the abuse of this

relief by litigants. As explained by Remedial L a w expert Justice
Florenz D . Regalado:
Under this amended section, a temporary restraining order

has been elevated to the same level as a preliminary injunction
in the procedure, grounds and requirements for its obtention.
Specifically on the matter of the requisite bond, the present
requirement therefor not only for a preliminary injunction but
also for a restraining order, unless exempted therefrom by the
court, puts to rest a controversial policy which w a s either
w i t t i n g l y or u n w i t t i n g l y abused. H e r e t o f o r e , no bond was
required for the issuance of a temporary restraining order, except
in labor cases brought to the Supreme Court on certiorari from
a decision of the National Labor Relations Commission where a
monetary award was granted, in which case the policy of the
Supreme Court was to require a bond equivalent to the monetary
award or benefits granted as a condition for the issuance of a
temporary restraining order. T h e exemption from bond in other
cases, plus the fact that no h e a r i n g w a s required, made a
t e m p o r a r y restraining order a much sought r e l i e f for peti-
tioners;
(c) W h e n an application for a w r i t of preliminary injunction

or a temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of the adverse party or
the person to be enjoined. In any event, such notice shall be preceded,
or contemporaneously accompanied, by service of summons, together
with a copy of the complaint or initiatory pleading and the appli-
cants affidavit and bond, upon the adverse party in the Philippines.
This is the principle of prior or contemporaneous jurisdiction,

similar to that provided for in the implementation of a writ of pre-
liminary attachment. But unlike a writ of preliminary attachment
were the principle applies only in the implementation of the writ, in
applications for the issuance of a writ of preliminary injunction or
temporary restraining order, the principle of prior and contempora-
neous jurisdiction applies before the raffle and issuance of the writ of
preliminary injunction or temporary restraining order.
139
V O L . III
However, where the summons could not be served personally

or by substituted service despite diligent efforts, or the adverse party
is a resident of the Philippines temporarily absent therefrom or is a
non-resident thereof, the requirement of prior or contemporaneous
service of summons shall not apply;
(d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a sum-
mary hearing which shall be conducted within twenty-four (24) hours
after the sheriff's return of service and/or the records are received by
the branch selected by raffle and to which the records shall be trans-
1
mitted immediately.
2. Notes and Cases
a. B O N D M A N D A T O R Y U N L E S S E X E M P T E D - The
filing of the necessary bond is an essential requisite or a mandatory
2
requirement for the issuance of injunctions. An order, however, for
the issuance of a corresponding w r i t of preliminary injunction is
immediately effective even before the filing of the injunction bond
3
within the period fixed by the court;
b. T h e bond must be signed by plaintiff otherwise plaintiff

4
may not be held responsible on the bond;
c. Petitioners must be included as principal;
Subsections (c) and (d) were taken partly from Administrative Circular N o . 20-
95 issued on September 12, 1995, RE: S P E C I A L R U L E S F O R T E M P O R A R Y R E -
STRAINING ORDERS A N D P R E L I M I N A R Y I N J U N C T I O N S .
2
Siva v. Reyes, 83 Phil. 416; P A F L U v. Cloribel, 27 S C R A 465, 475.
3
Active Wood Products, Inc. v. I A C , G.R. N o . 70144, M a r c h 26,1990,183 S C R A
671. "The Supreme Court explained that: "The ruling in San Miguel v. Elbinias, 127
S C R A 312, that posting of a bond is a condition (sine qua non) to the issuance of a writ
of preliminary injunction, what was disputed therein was the reasonableness of the
exercise of discretion by the trial court in fixing the amount of the injunction bond at
an alleged exorbitant price. A n d that the Court merely emphasized the significance of
the bond, the amount of which can be fixed by the judge." The Court did not in any
manner suggest that the injunction may be disregarded since it becomes effective only
after the bond ordered to be filed is actually filed. There w a s no reference whatsoever
to Siva v. Reyes and PAFLU v. Cloribel, supra.
4
Molina v. Somes, 24 Phil. 49.
140
d. It must be accompanied by proper affidavits proving the

5
sufficiency of sureties, otherwise the bond is insufficient. The court
may require the debtor to post an injunctive bond equal to the amount
6
of his loan; and
e. T h e complaint must be verified. Absence of verification

makes an application or petition for preliminary injunction patently
7
insufficient both in form and substance.
T h e requirement of a bond and the authority of the court to

grant exemptions from said requirement refer to both preliminary
injunction and temporary restraining order. This is based on Section
4(b), mandating the posting of a bond "Unless exempted by the
court." However, while Section 4(b) of Rule 58 gives the presiding
judge the discretion to require a bond before granting a temporary
restraining order, the Rules did not intend to give the judge the
license to exercise such discretion arbitrarily to the prejudice of the
defendant. Unless it appears that the enjoined party will not suffer
any damage, the presiding judge must require the applicant to post
a bond, otherwise the courts could become instruments of oppression
8
and harassment.
S E C . 5. Preliminary injunction not granted without no-

tice; exception. No p r e l i m i n a r y i n j u n c t i o n shall be g r a n t e d
w i t h o u t h e a r i n g a n d p r i o r notice t o the p a r t y o r person sought
t o b e e n j o i n e d . I f i t s h a l l a p p e a r f r o m facts s h o w n b y affida-
vits o r b y the v e r i f i e d a p p l i c a t i o n that g r e a t o r i r r e p a r a b l e
i n j u r y w o u l d r e s u l t t o the a p p l i c a n t b e f o r e the matter can b e
h e a r d o n notice, the c o u r t t o w h i c h the application for p r e -
l i m i n a r y i n j u n c t i o n w a s m a d e , m a y issue a t e m p o r a r y re-
s t r a i n i n g o r d e r to be effective only for a p e r i o d of twenty
(20) d a y s from s e r v i c e on the p a r t y or p e r s o n sought to be
e n j o i n e d , except as h e r e i n p r o v i d e d . W i t h i n the said twenty-
d a y p e r i o d , the c o u r t m u s t o r d e r s a i d p a r t y o r p e r s o n t o
s h o w cause, at a specified time a n d place, w h y the injunction
s h o u l d not b e g r a n t e d , d e t e r m i n e w i t h i n the same p e r i o d
6
Salva v. Palacios, et al., G.R. No. L-4247, Minutes of Feb. 20, 1951, 3 MORAN,
1980 Ed., 86.
Commodity Financing Co., Inc. v. Jimenez, 91 S C R A 57.
'Republic of the Philippines v. Villarama, 278 S C R A 736, September 5, 1997.
See Universal Motors Corp. v. Rojas Jr., A M . No. RTJ-03-1814, May 26, 2005.
141
V O L . III
w h e t h e r o r not the p r e l i m i n a r y injunction shall b e g r a n t e d ,

a n d a c c o r d i n g l y issue the c o r r e s p o n d i n g o r d e r .
H o w e v e r , a n d subject to the p r o v i s i o n s of the p r e c e d i n g
sections, if the matter is of e x t r e m e u r g e n c y a n d the a p p l i -
cant w i l l suffer g r a v e injustice a n d i r r e p a r a b l e injury, the
executive j u d g e of a multiple-sala court or the p r e s i d i n g j u d g e
of a single-sala court m a y issue ex parte a t e m p o r a r y r e -
straining o r d e r effective for only seventy-two (72) h o u r s from
issuance b u t h e shall i m m e d i a t e l y c o m p l y w i t h the p r o v i -
sions of the next p r e c e d i n g section as to service of s u m m o n s
a n d the documents t o b e s e r v e d t h e r e w i t h . Thereafter, w i t h i n
the a f o r e s a i d seventy-two (72) h o u r s , the j u d g e b e f o r e w h o m
the case is p e n d i n g shall c o n d u c t a s u m m a r y h e a r i n g to de-
termine w h e t h e r the t e m p o r a r y r e s t r a i n i n g o r d e r shall b e
extended until the a p p l i c a t i o n f o r p r e l i m i n a r y injunction c a n
be h e a r d . In no case shall the total p e r i o d of effectivity of the
t e m p o r a r y r e s t r a i n i n g o r d e r e x c e e d t w e n t y (20) d a y s , includ-
i n g the o r i g i n a l seventy-two h o u r s p r o v i d e d h e r e i n .
I n the event that the a p p l i c a t i o n f o r p r e l i m i n a r y i n j u n c -

tion i s d e n i e d o r not r e s o l v e d w i t h i n the s a i d p e r i o d , the
t e m p o r a r y r e s t r a i n i n g o r d e r is d e e m e d automatically vacated.
T h e effectivity of a t e m p o r a r y r e s t r a i n i n g o r d e r is not ex-
tendible w i t h o u t n e e d of a n y j u d i c i a l d e c l a r a t i o n to that ef-
fect a n d n o c o u r t shall h a v e a u t h o r i t y t o e x t e n d o r r e n e w the
same o n the s a m e g r o u n d f o r w h i c h i t w a s issued.
H o w e v e r , i f i s s u e d b y the C o u r t o f A p p e a l s , o r a m e m b e r
thereof, the t e m p o r a r y r e s t r a i n i n g o r d e r s h a l l b e effective
for sixty (60) d a y s f r o m s e r v i c e o n the p a r t y o r p e r s o n s o u g h t
t o b e enjoined. A r e s t r a i n i n g o r d e r i s s u e d b y the S u p r e m e
C o u r t o r a m e m b e r t h e r e o f s h a l l b e effective until f u r t h e r
o r d e r s . (5a)
COMMENT:
1. P r e l i m i n a r y Injunction not G r a n t e d W i t h o u t Notice;

Issuance o f R e s t r a i n i n g O r d e r
No preliminary injunction shall be granted without notice to

the defendant. If it shall appear from the facts shown by affidavits
142
or by the verified complaint that great or irreparable injury would
result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made,
may issue a restraining order to be effective only for a period of
twenty days from date of its issuance. Within the said twenty-day
period, the court must cause an order to be served on the defendant,
requiring him to show cause, at a specified time and place, why the
injunction should not be granted, and determine within the same
period whether or not the preliminary injunction shall be granted
and shall accordingly issue the corresponding order. In the event
that the application for preliminary injunction is denied, the re-
straining order is deemed automatically vacated.
N o t h i n g herein contained shall be construed to impair, affect or

modify in any w a y any rights granted by, or rules pertaining to in-
1
junctions contained in, existing agrarian, labor or social legislation.
T h e original provision under Section 5 of Rule 58 where the

term "ex-parte" described the nature of judge's issuance of the twenty-
day temporary restraining order had been deleted pursuant to an
amendment made by the court en banc in its resolution in Bar Mat-
2
ter N o . 803 of 17 February 1998.
The provisions of the Interim Rule and Circular No. 20-95 were
incorporated in the present Rule.
Procedural guidelines in issuance of TRO and preliminary in-
junction by multiple sala court.
General Principles:
A. No preliminary injunction shall be granted without hear-
ing and prior notice to the party or person sought to be enjoined.
B. If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would result to
the applicant before the matter can be heard on notice, the court to
*Rule 8, IRG; BP 224; Bernardo v. Court of Appeals, 168 S C R A 439, Dec. 14,
1988.
2
Mendoza v. Judge Ubiadas, 417 S C R A 183, December 8, 2003.
143
V O L . III
which the application for preliminary injunction was made, may

issue a temporary restraining order to be effective only for a period
of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided.
C. Procedure: When an application for a writ of preliminary
injunction or a temporary restraining order is included in a com-
plaint or any initiatory pleading, the case, if filed in a multiple-sala
court, shall proceed as follows:
1. Verified applicant and bond for preliminary injunction or
temporary restraining order.
2. Determination from facts shown by affidavits or by the
verified application that great or irreparable injury would result to
the applicant before the matter can be heard on notice.
3. If the matter is of extreme urgency and the applicant will

suffer grave injustice and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single-sala court may
issue ex parte a temporary restraining order effective for only sev-
enty-two (72) hours from issuance.
4. In either case, even if no T R O had been issued because

there is no extreme urgency, the case shall be raffled only after
notice to and in the presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or contempo-
raneously accompanied, by service of summons, together with a copy
of the complaint or initiatory pleading and the applicant's affidavit
and bond, upon the adverse party in the Philippines.
However, ( 1 ) where the summons could not be served person-

ally or by substituted service despite diligent efforts, or ( 2 ) the ad-
verse party is a resident of the Philippines temporarily absent
therefrom or is a non-resident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
5. If no TRO has been issued because there is no extreme

urgency
The application for a temporary restraining order shall there-

after be acted upon only after all parties are heard in a summary
hearing which shall be conducted within twenty-four (24) hours af-
ter the sheriff's return of service and/or the records are received by
144
the branch selected by raffle and to which the records shall be trans-
mitted immediately.
6. Within the aforesaid seventy-two (72) hours, the judge

before whom the case is pending shall conduct a summary hearing
to determine whether the temporary restraining order shall be ex-
tended until the application for preliminary injunction can be heard.
In no case shall the total period of effectivity of the temporary re-
straining order exceed twenty (20) days, including the original sev-
enty-two hours provided herein.
7. Determination w i t h i n t w e n t y d a y s f r o m service of
the T R O o n the p a r t y s o u g h t t o b e e n j o i n e d whether a prelimi-
nary injunction shall issue or not.
8. T h e effectivity of a temporary restraining order is not

extendible without need of any judicial declaration to that effect and
no court shall have authority to extend or renew the same on the
s a m e g r o u n d f o r w h i c h i t w a s i s s u e d . Another restraining order
may, therefore, be issued provided it is not based on the same ground.
However, in the Court of Appeals, the T R O shall be effective for

sixty days (60) from service on the person sought to be enjoined,
while a T R O from the Supreme Court shall be effective until further
orders. (Section 5, infra.)
D I F F E R E N C E S I N T H E R E Q U I S I T E S F O R T H E ISSU-
A N C E OF A TRO A N D IN THE LIFE OF A TRO W H E N IT IS
I S S U E D B Y A N E X E C U T I V E J U D G E A N D W H E N I T I S IS-
SUED BY A PRESIDING JUDGE.
T h e rule holds that before a temporary restraining order may

be issued, all parties must be heard in a summary hearing first,
after the records are transmitted to the branch selected by raffle.
T h e only instance when a T R O may be issued ex parte is when the
matter is of extreme urgency that grave injustice and irreparable
injury will arise unless it is issued immediately. Under such circum-
stances, the Executive Judge shall issue the T R O effective for 72
hours only. T h e Executive Judge shall then summon the parties to a
conference and raffle the case in their presence. Before the lapse of
the 72 hours, the Presiding Judge to whom the case was raffled shall
then conduct a summary hearing to determine whether the T R O can
be extended for another period until the application for preliminary
145
V O L . III
injunction can be heard, which period shall in no case exceed 20

3
days including the original 72 hours.
T h u s , it is only the E x e c u t i v e J u d g e or the P r e s i d i n g

J u d g e w h o m a y issue ex-parte a T R O effective f o r 72 h o u r s
only i n cases o f e x t r e m e u r g e n c y a n d g r a v e injustice a n d
i r r e p a r a b l e injury.
The unexplained failure of the judge after the ex-parte issuance
of a temporary restraining order to thereafter conduct a hearing on
the issuance of a writ of preliminary injunction within the time
prescribed (before the lapse of 72 hours) therefore constitutes grave
4
abuse of judicial authority and misconduct.
I N T H E C O U R T O F A P P E A L S EX-PARTE T R O A L L O W E D
IN CASES OF EXTREME U R G E N C Y .
S E C . 2. Action by the Presiding Justice. W h e n a petition

involves an urgent matter, such as an application for w r i t of habeas
corpus or temporary restraining order, and there is no w a y of con-
vening the Raffle Committee or calling any of its members, the
Presiding Justice or the Executive Justice, as the case may be, or in
their absence, the most senior justice m a y conduct the raffle or act on
the petition, subject to raffle on the next working day in accordance
5
with Rule I I I hereof. ( n )
***
S E C . 5. Action by a Justice. A l l members of the Division

shall act upon an application for a temporary restraining order and
writ of preliminary injunction. However, if the matter is of extreme
urgency, and a Justice is absent, the t w o other justices shall act
3
Borja v. Judge Salcedo, 412 S C R A 110, September 26, 2003; see also Adao v.
Lorenzo, 316 S C R A 570 (1999); Abundo v. Judge Manio, Jr., 312 S C R A 19, August 6,
1999; Vda. de Sayson v. Zerna, 362 S C R A 409, 414 (2001).
4
Mendoza v. Judge Ubiadas, December 8, 2003, 417 S C R A 183. Holding C F I
should refrain from issuing injunction to prevent enforcement of judgment in a clearly
labor dispute. See also Sayson v. Judge Zerna, A . M . N o . RTJ-99-150, 362 S C R A 409,
August 9,2001, holding Executive Judge may issue ex parte T R O effective only for 72
hours from its issuance.
5
Sec. 2, Rule IV, Internal Rules of the Court of Appeals ( I R C A ) as amended by
A . M . No. 02-6-13-CA.
146
upon the application. If only the ponente is present, then he shall act
alone upon the application. T h e action of the two Justices or of the
ponente shall however be submitted on the next working day to the
absent member or members of the Division for ratification, modifica-
6
tion or recall.
3. Trial Type Hearing Not Required
Under Section 5 of Rule 58 of the 1997 Rules of Civil Proce-

a
dure, [ n ] o preliminary injunction shall be granted without hearing
and prior notice to the party or party sought to be enjoined..." This
does not mean, however, that all petitions for preliminary injunction
must undergo a trial-type hearing, it being hornbook doctrine that
a
a formal or trial-type hearing is not at all times and in all instances
7
essential to due process: Due process means giving every contend-
ing party the opportunity to be heard and the court to consider every
8
piece of evidence presented in their favor. In the instant case, there
is no dispute that complainant w a s given opportunity to be heard,
having submitted his counter-affidavit and memorandum in sup-
port of his position. Complainant cannot, thus, claim that he was
9
denied due process by respondent.
U n d e r the Internal Rules of the Court of Appeals:
Sec. 4. Hearing on Preliminary Injunction. T h e requirement

of a hearing on an application for preliminary injunction is satisfied
with the issuance by the Court of a resolution served upon the party
sought to be enjoined requiring him to comment on said application
within a period of not more than ten (10) days from notice. Said
party m a y attach to his comment documents which may show why
the application for preliminary injunction should be denied. The
Court m a y require the party seeking the injunctive relief to file his
reply to the comment within five ( 5 ) days from receipt of the latter.
If the party sought to be enjoined fails to file his comment as

provided for in the preceding paragraph, the Court may resolve the
application on the basis of the petition and its annexes.
6Sec. 5, Rule V I , I R C A .
7NFL v. N L R C , 283 S C R A 275 (1997).
8Ginete v. C A , 296 S C R A 38 (1998).
9Jaime L. Co v. Judge Demetrio D. Calimag, Jr., 334 S C R A 20, June 20,2000, J.
Melo.
147
V O L . III
The preceding paragraphs, notwithstanding, the Court may, in

its sound discretion, set the application for a preliminary injunction
for hearing during which the parties may present their respective
positions or submit evidence in support thereof (Rule VI, IRC A), ( n )
4. Temporary Restraining Orders
a. Purpose
A temporary restraining order is generally granted without
notice to the opposite party, and is intended only as a restraint on
him until the propriety of granting a temporary injunction can be
determined, and it goes no further than to preserve the status quo
10
until that determination. Its purpose is merely to suspend proceed-
ings until there may be an opportunity to inquire whether any in-
junction should be granted, and is not intended to operate as an
injunction pendente lite, and should not in effect determine the is-
sues involved before the parties can have their day in court, or g i v e
an advantage to either party by proceeding in the acquisition or
alteration of property the right to which is disputed while the hands
11
of the other party are tied.
Restraining order is generally regarded as an order to main-

tain the subject of controversy in status quo until the hearing of an
application for a temporary injunction. T h e twenty-day period is
12
non-extendible.
b. T R O is I m p r o p e r to Transfer Possession
W h e n parties are ordered to maintain the status quo in a T R O ,

but the prevailing condition at the time of its issuance is already
that resulting from acts of usurpation by one of the parties, which
acts of usurpation are clearly established in the pleadings, that T R O
amounts to a perpetuation of the injurious effects of such acts of
usurpation; such a state of things cannot clearly be allowed, for the
10
T h e Revised Rules of Court in the Philippines, Vol. I V - A by Vicente J. Fran-
cisco, 1972, pp. 184-185.
n
4 3 C.J.S. 415; Government Service Insurance System v. Florendo, G.R. N o . L-
48603, Sept. 29, 1989, 178 S C R A 76; Vide Aquino v. Luntok, 184 S C R A 177 (1990). In
the Court of Appeals, the period is now sixty days from service on the party sought to
be enjoined (Sec. 5, Rule 58, 1997 Rules of Civil Procedure).
12
Associate Labor Union v. Judge Borromeo, 166 S C R A 99, Sept. 29, 1988.
148
office of the w r i t of injunction is to restrain the wrongdoer, not to

13
protect h i m .
c. Lifespan of T R O
Upon the passage of Batas Pambansa Big. 224, a restraining

order now loses its efficacy and binding force upon the expiration of
twenty (20) days from its issuance without necessity of any judicial
order. Inevitably, therefore, a hearing must be held and action on
the application for the w r i t must be made within the period specified
14
by the said l a w .
Moreover under Section 4 unless exempted by the court, the

applicant for a preliminary injunction or temporary restraining or-
der must file w i t h the court where the action or proceeding is pend-
ing, a bond executed to the party or person enjoined, in an amount to
be fixed by the court, to the effect that the applicant will pay to such
party or person all damages which he may sustain by reason of the
injunction or temporary restraining order if the court should finally
decide that the applicant was not entitled thereto. Upon approval of
the requisite bond, a w r i t of preliminary injunction shall be issued.
5. B . P . B i g . 224 is A p p l i c a b l e to A l l C o u r t s E x c e p t Su-
preme Court
In Delbros Hotel Corporation v. The Intermediate Appellate

15
Court, et al., Justice Fernan speaking for the maturity laid down
the scope of BP 224, in a ten to four decision with one abstention,
held:
16
"The applicability of the above-quoted provisions to the
then Intermediate Appellate Court, now the Court of Appeals,
13
B u a y a n Cattle Co., Inc. v. Quintillan, supra; Villanueva v. C A , G.R. No. 117661,
July 15,1996, 259 S C R A 14.
14
Phil. Virginia Tobacco v. De Los Angeles, 164 S C R A 543 (1988); Ubarra v. Tecson,
134 S C R A 10.
Section 8 of the Interim Rules has been changed by the 1997 Rules on Civil
Procedure by reckoning the said period "from service on the party sought to be en-
joined. * * *" (Sec. 5, Rule 58) In the Court of Appeals, the period is now sixty days
from service on the party sought to be enjoined (Sec. 5, Rule 58, 1997 Rules of Civil
Procedure).
16
G . R . N o . 72566, April 12, 1988,159 S C R A 533.
l6
Sec. 5, BP Big. 224.
149
V O L . III
can hardly be doubted. The Interim Rules and Guidelines were

promulgated to implement the Judiciary Reorganization A c t of
17
1980 which include the Intermediate Appellate Court among
the courts organized thereunder. This is emphasized in the
preamble of the Interim Rules which states that the same shall
apply to all inferior courts according to the Constitution. The
term 'inferior courts' as used therein refers to all courts except
the Supreme Court, the Sandiganbayan and the Court of Tax
Appeals. Thus, paragraphs 14 and 15 of the Interim Rules
expressly provide for 'Procedure in the Intermediate Appellate
Court."
"Indeed, if paragraph 8 of the Interim Rules w e r e not
intended to apply to temporary restraining orders issued by
the respondent court, there would have been absolutely no rea-
son for the inclusion of said paragraph in the Interim Rules.
The limited life span of temporary restraining orders issued by
the Regional Trial Courts and Municipal Trial Courts is al-
ready provided for in BP Big. 224. It was precisely to include
the Intermediate Appellate Court within the same limitation
as to the effectivity of its temporary restraining orders that BP
Big. 224 was incorporated in the Interim Rules, with the sig-
nificant change of the word 'judge' to 'court', so as to make it
clear and unequivocal that the temporary restraining orders
contemplated therein are those issued not only by trial judges
18
but also by justices of the appellate court."
Scope o f T R O
Where the temporary restraining order merely restrained re-

spondent S T A . C L A R A and all its agents and representatives from
withdrawing and disposing of the plywood inventory in S T A . C L A R A ' s
plant or warehouse until further orders from this Court. It does not
carry with it the right to seize property belonging to S T A . C L A R A or
to keep the property seized in their possession. T h e petitioners, by
what they did, took the law into their own hands without specific
order from this Court; hence, the seizure made by them was void and
1 7
B P Big. 129.
18
Delbros Hotel Corporation v. Intermediate Appellate Court, 159 S C R A 553;
Atty. Celso D. Lavina v. Hon. Court of Appeals, 171 S C R A 691, April 10, 1989.
150
illegal even if the intention of petitioners was to prevent the alleged

19
violation of the temporary restraining order.
Lifetime of P r e l i m i n a r y Injunction
A preliminary injunction issued in an action to enforce a con-

tract, which prohibits an employee from working in a competing en-
terprise within two years from resignation, has the same lifetime as
the prohibition t w o years also. Therefore, upon the expiration of
the said period, a suit questioning the validity of the issuance of the
w r i t becomes functus oficio and therefore moot. Courts are called
upon to resolve actual cases and controversies, not to render advi-
sory opinions. T h e y cannot take cognizance of moot and academic
questions, subject to notable exceptions involving constitutional is-
20
sues.
6. Automatic Termination of T R O
Explaining the life span of a T R O , the Supreme Court in Asso-

ciated Labor Unions, et al. v. Judge Borromeo, et al., stated:
"It is a serious abuse of discretion on the part of a trial

judge to extend a temporary restraining order. Under the Rules
21
of Court as amended a T R O has a non-extendible lifetime of
twenty days (that is, assuming that the T R O itself was valid)
upon the expiration of which, it dies a natural death, x x x if a
writ of preliminary injunction is granted, the writ then takes
its place but it cannot substitute for the writ ( i f one was not
granted within the twenty-day period) by the simple expedient
of extending its life. T h e issuance of 'perpetual' T R O s was the
motivating factor behind the amendment of the rules, x x x The
amendatory provisions of Batas Pambansa 224 was adopted as
a reaction against the indiscriminate issuance of ex parte pre-
liminary injunctions which, not infrequently, conferred the writ
from an instrument in furtherance of justice to a shield for
19
Velasco, et al. v. Court of Appeals, G.R. N o . 121517,31 March 2000, 329 S C R A
392.
20Paul Hendrik P. Ticzon, et al. v. Video Post Manila, Inc., 333 S C R A 472, June
15, 2000, J. Panganiban.
"Rule 58, Sec. 5, as amended by Batas Pambansa Big. 224.
151
V O L . III
injustice. Thereunder, in no case may a preliminary injunction

be issued without notice. The rule is absolute x x x . Neverthe-
less, if it appears that great or irreparable injury would result
to the applicant before his application for preliminary injunc-
tion could be heard on notice, the judge could issue a restrain-
ing order with a limited life of 20-day period, the application
for preliminary injunction is denied, the temporary restraining
order would thereby b e deemed automatically vacated, x x x
But if the judge takes no action on the application or prelimi-
nary injunction within the said 20 days, the temporary re-
straining order would automatically expire on the 20th day by
the sheer force of law, no judicial declaration to that effect
being necessary, thus, by the terms of Batas Pambansa Big.
224, a temporary restraining order can no longer exist indefi-
22
nitely; it has become truly temporary." This does not apply to
23
the Supreme Court.
7. W r i t of P r e l i m i n a r y I n j u n c t i o n A f t e r T w e n t y (20)
Days may be Issued
A second T R O by the Court of Appeals after the expiration of

24
the twenty-day period is a patent nullity.
By the terms of Section 5, Rule 58 of the Rules of Court as

amended by BP Big. 224, a temporary restraining order cannot exist
indefinitely, it has a lifetime of a nonextendible period of twenty
days and automatically expires on the twentieth day. No judicial
25
declaration that it has expired is necessary. T h i s applies to the
22Associated Labor Unions, et al. v. Judge Borromeo, et al., 166 S C R A 99 (1988);

Dionisio v. Court of First Instance, 124 S C R A 222; Asset Privatization Trust v. C A , 214
S C R A 400, Oct. 1,1992; Aquino v. Lontok, 184 S C R A 177.
^Pacific Banking Corporation v. Court of Appeals, October 13,1995, 249 S C R A
293. In the Court of Appeals, the period is now sixty days from service on the party
sought to be enjoined (Sec. 5, Rule 58,1997Rules of Civil Procedure). See also Bacolod
City Water District v. Labayen, G.R. N o . 157494, December 10, 2004, holding that the
order did not state the period of restraint does not convert the T R O into a preliminary
injunction. The 20-day period should be deemed incorporated in the Order where there
is an omission to do so.
24Carbungco v. Court of Appeals, G.R. N o . 78265, January 20,1990,181 S C R A
313.
^Paras v. Judge Roura, June 29,1988,163 S C R A 177.
152
26
Court of A p p e a l s . But the period in the Court of Appeals have been
extended to sixty days from date of service to the party sought to be
enjoined. T h e w r i t of preliminary injunction may, however, be issued
even after twenty (20) or (60) days from service of the T R O to the
27
party sought to be enjoined.
S E C . 6. Grounds for objection to, or for motion of dissolu-

tion of, injunction or restraining order. T h e a p p l i c a t i o n
for injunction or restraining o r d e r m a y be denied, upon a
s h o w i n g o f its insufficiency. T h e i n j u n c t i o n o r r e s t r a i n i n g
o r d e r m a y a l s o b e d e n i e d , or, i f g r a n t e d , m a y b e dissolved o n
other g r o u n d s u p o n affidavits o f the p a r t y o r p e r s o n enjoined,
w h i c h m a y b e o p p o s e d b y the a p p l i c a n t also b y affidavits. I t
m a y f u r t h e r b e d e n i e d , or, i f g r a n t e d , m a y b e dissolved, i f i t
a p p e a r s after h e a r i n g that a l t h o u g h the a p p l i c a n t i s entitled
t o the i n j u n c t i o n o r r e s t r a i n i n g o r d e r , the i s s u a n c e o r con-
t i n u a n c e thereof, a s the case m a y b e , w o u l d c a u s e i r r e p a r a -
b l e d a m a g e t o the p a r t y o r p e r s o n e n j o i n e d w h i l e the appli-
cant c a n b e fully c o m p e n s a t e d f o r s u c h d a m a g e s a s h e m a y
suffer, a n d the f o r m e r f i l e s a b o n d i n a n a m o u n t f i x e d b y the
c o u r t c o n d i t i o n e d that h e w i l l p a y all d a m a g e s w h i c h the
a p p l i c a n t m a y suffer b y the d e n i a l o r the dissolution o f the
i n j u n c t i o n or r e s t r a i n i n g o r d e r . If it a p p e a r s that the extent
o f the p r e l i m i n a r y i n j u n c t i o n o r r e s t r a i n i n g o r d e r g r a n t e d i s
too g r e a t , i t m a y b e m o d i f i e d . ( 6 a )
COMMENT:
Under the present Rule, the court may take any of the follow-
ing actions on an application for a preliminary injunction:
a) the application for injunction or restraining order may be
denied, upon a showing of its insufficiency.
b) T h e injunction or restraining order may also be denied, or
if granted, may be dissolved on other grounds upon affidavits of the
"Aquino v. Lontok, G.R. N o . 84324, April 15, 1990, 184 S C R A 177.

27
Aquino v. Lontok, 184 S C R A 177, April 15, 1990. In the Court of Appeals, the
period is now sixty days from service on the party sought to be enjoined. (Sec. 5, Rule
58, 1997 Rules of Civil Procedure).
153
V O L . III
party or person enjoined, which may be opposed by the applicant

also by affidavits.
c) It may further be denied, or, if granted, may be dissolved,
if it appears after hearing that although the applicant is entitled to
the injunction or restraining order, the issuance or continuance
thereof, as the case may be, would cause irreparable damage to the
party or person enjoined while the applicant can be fully compen-
sated for such damages as he may suffer, and the former files a bond
in an amount fixed by the court conditioned that he w i l l pay all
damages which the applicant may suffer by the denial or the disso-
lution of the injunction or restraining order.
d) If it appears that the extent of the preliminary injunction

or restraining order granted is too great, it m a y (not "must") be
modified.
NOTES:
Is hearing on the merits necessary before a motion for a w r i t of

preliminary injunction m a y be denied?
1. Summary Denial Without Adequate H e a r i n g Im-

proper
W h i l e in the issuance of preliminary injunction, the courts are

given sufficient discretion to determine the necessity for the grant of
the relief prayed for as it affects the respective rights of the parties,
with the caveat that extreme caution be observed in the exercise of
such discretion, it is with an equal degree of care and caution that
courts ought to proceed in the denial of the w r i t . It should not just
summarily issue an order of denial without an adequate hearing and
judicious evaluation of the merits of the application. A perfunctory
and improvident action in this regard would be a denial of procedural
1
due process and could result in irreparable prejudice to a party.
2. When Summary DenialAllowed
If the ground is the insufficiency of the complaint, the same is

apparent from the complaint itself. Preliminary injunction in such a
^ a t a c l a n v. Court of Appeals, 175 S C R A 764 (1989).
154
Rule 58 PRELIMINARYINJUNCTION Sec. 6
circumstance m a y be refused outright, with or without notice to the

adverse party. In fact, under Section 6 of Rule 58, the court may also
refuse an injunction on other grounds on the basis of affidavits which
m a y have been submitted by the parties in connection with such
application.
Section 7 of Rule 58 merely specifies the actions that the court

m a y take on the application for the w r i t if there is a hearing on the
merits. It does not declare that such hearing is mandatory or prereq-
uisite thereof. Otherwise, the courts w i l l be forced to conduct a hear-
ing even if from a consideration of the pleadings alone it can readily
be ascertained that the movant is not entitled to the writ.
It would be different if there is a prima facie showing on the

face of the motion or pleadings that the grant of preliminary injunc-
tion m a y be proper, in which case notice to the opposing party would
be necessary since the grant of such w r i t on an ex parte proceeding is
now proscribed.
3. N e c e s s i t y of H e a r i n g
If there is a prima facie showing that preliminary injunction is

proper, a hearing should be conducted, since under such circumstance,
only in cases of extreme urgency will the writ issue prior to a final
hearing. Such requirement for prior notice and hearing underscores
the necessity that a w r i t of preliminary injunction is to be dispensed
w i t h circumspection and both sides should be heard w h e n e v e r
possible. But it does not follow that such a hearing is indispensable
where right at the outset the court is reasonably convinced that the
writ will not lie. W h a t was then discouraged and is now specifically
2
prohibited is the issuance of the writ without notice and hearing.
NOTE:
Supreme Court Administrative Circular N o . 1 dated Jan. 28,

1988 prohibits the issuance of temporary restraining orders to
prevent the enforcement of a final judgment without notice and
hearing.
'Valley Trading Co. v. C F I , 171 S C R A 501.
155
V O L . III
T h e M e r e F i l i n g o f C o u n t e r b o n d does not h o w e v e r N e c -
essarily W a r r a n t Dissolution
The preliminary injunction may be dissolved, if it appears after
hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case
may be, would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated for such dam-
ages as he may suffer, and the former files a bond in an amount fixed
by the court conditioned that he will pay all damages which the
applicant may suffer by the denial or the dissolution of the injunc-
tion or restraining order.
a. Dissolution o f I n j u n c t i o n U n d e r the C e n t r a l B a n k
Act
Section 29 of the Central Bank A c t provides that "* * * the
restraining order or injunction shall be refused or if granted shall be
dissolved upon filing by the Central Bank of a bond, which shall be
in the form of cash or Central Bank cashier's check, in an amount
twice the amount of the bond of the petitioner or plaintiff condi-
tioned that it will pay the damages which the petitioner or plaintiff
3
may suffer by the refusal or the dissolution of the injunction. * * *"
The language is plain and unequivocal, leaving no doubt that

the court is under obligation to dissolve the injunction once the
counterbond in the required amount is posted. Commenting on in-
junctions in general under Rule 58 of the Rules of Court, Chief
Justice Moran observed that "A w i d e latitude is given by the provi-
sion to the trial judge to grant, refuse, continue, modify or dissolve
the injunction as justice m a y require." By contrast, Section 29 of the
Central Bank A c t grants no similar discretion, being cast in a quite
4
different and peremptory tenor.
T h e word "shall" imports a mandatory sense as distinguished

from the discretion that is allowed by use of the word "may." A l -
though this is not an absolute rule, the exception does not apply in
3
Central Bank, et al. v. Court of Appeals, G.R. N o . 81846, March 10, 1988, 163
S C R A 482, En Banc, Minute Resolution, Martinez, Summary of Supreme Court
Decision, 1988.
4
Supra.
156
v i e w of the urgency of the measure contemplated in Section 29 and

the adverse consequences that are sure to follow if the injunction is
5
not lifted and the bank is allowed to reopen.
W h e r e pursuant to its authority under the Central Bank Act,

the Central Bank M o n e t a r y Board, by resolution placed the Manila
Banking Corporation ( M a n i l a B a n k ) under receivership after find-
ing that the bank had become insolvent; the Manila Bank sued the
Central Bank and w a s able to secure an injunction against its en-
forcement, after posting a P10 million bond. T h e Central Bank moved
to lift the injunction and posted a P10 million counterbond. T h e trial
judge denied the motion. T h e Court of Appeals sustained the trial
court.
T h e Supreme Court reversed the Court of Appeals and held

that the applicable l a w is Section 29 which plainly leaves no doubt
that the court is under obligation to dissolve the injunction once the
counterbond in the required amount is posted, in v i e w of the ur-
gency of the measure contemplated in said section and the adverse
consequences that are sure to follow if the injunction is not lifted
and the bank is allowed to reopen. After its earlier closure had been
announced to the public, its depositors w i l l be frantically pounding
at its doors to recover their money. A bank run is inevitable. T h e old
management w i l l be reinstated to pursue the policies that made the
bank insolvent in the first place. T h e purpose of the receivership will
be frustrated. To guard against such eventualities, the law makes it
obligatory upon the court to dissolve the injunction once the re-
6
quired counterbond is posted by the Central Bank.
S E C 7. Service of copies of bonds; effect of disapproval of

same. T h e p a r t y filing a b o n d in a c c o r d a n c e w i t h the p r o -
visions of this R u l e shall f o r t h w i t h s e r v e a c o p y of such b o n d
on the o t h e r party, w h o m a y except to the sufficiency of the
b o n d , o r o f the s u r e t y o r sureties thereon. I f the applicant's
b o n d i s f o u n d t o b e insufficient i n a m o u n t , o r i f the surety o r
sureties thereon fail to justify, a n d a b o n d sufficient in amount
w i t h sufficient sureties a p p r o v e d after justification is not
*Supra.
"Central Bank, et al. v. Court of Appeals, et al., supra.
157
V O L . III
filed forthwith, the injunction shall be dissolved. If the b o n d

of the a d v e r s e p a r t y is f o u n d to be insufficient in a m o u n t , or
the surety or sureties thereon fail to justify a b o n d sufficient
in amount w i t h sufficient sureties a p p r o v e d after justifica-
tion is not filed forthwith, the injunction shall be g r a n t e d or
restored, as the case m a y b e . (8a)
COMMENT:
S E C . 8. Service of copies of bonds; effect of disapproval of

same. The party filing a bond in accordance with the provisions of
this rule shall forthwith serve a copy of such bond on the other party,
who may except to the sufficiency of the bond, or of the bond, or of the
surety or sureties thereon. If the plaintiffs bond is found to be insuffi-
cient in amount, or if the surety or sureties thereon fail to justify, and
a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be dissolved.
If the defendants bond is found to be insufficient in amount, or the
surety or sureties thereon fail to justify and a bond sufficient in
amount with sufficient sureties approved after justification is not
filed forthwith, the injunction shall be granted or restored, as the
case may be.
No substantial change, "plaintiff was changed to "applicant"

and "defendant" to "adverse party." T h e former Section 7 was de-
leted.
NOTE:
1
M e r e insufficiency of the bond is not a ground for dissolution.
S E C . 8. Judgment to include damages against party and

sureties. At the trial, the a m o u n t of d a m a g e s to be a w a r d e d
t o either party, u p o n the b o n d o f the a d v e r s e party, shall b e
claimed, ascertained, a n d a w a r d e d u n d e r the s a m e p r o c e -
d u r e p r e s c r i b e d in Section 20 of R u l e 57. (9a)
Philippine Virginia Tobacco Administration v. Angeles, supra.
158
COMMENT:
S E C . 9. Judgment to include damages against party and

sureties. Upon the trial the amount of damages to be awarded to
the plaintiff, or to the defendant, as the case may be, upon the bond of
the other party, shall be claimed, ascertained, and awarded under
the same procedure as prescribed in Section 20 of Rule 57.
U n l i k e the counterbond in attachment which may be held li-

able only after final judgment, in an injunction, the bond by either
party must be claimed under Section 20 of Rule 57, that is, before
final judgment.
NOTES:
1. N e e d F o r Application in Same Case
In order that the judgment should include the damages against

the party and sureties it must be applied for in the same case before
1
judgment becomes executory, otherwise, it is barred forever.
2. M a l i c e o r B a d F a i t h i s not a n E l e m e n t f o r R e c o v e r y
o n the B o n d
T h e dissolution of the injunction even if the injunction was

obtained in good faith amounts to a determination that the injunc-
tion was wrongly obtained and a right of action on the injunction
2
bond immediately accrues to the defendant.
3. L i m i t of R e c o v e r y
3
Recovery of damages is limited to the amount of the bond.
There is nothing in the Rules of Court which allow recovery of dam-
ages other than upon the bond pledged by the party for securing an
4
injunction.
1
M a n i n g o v. Intermediate Appellate Court, 183 S C R A 691, March 26, 1990.
2
Socorro v. Aquino, 35 S C R A 373, 376.
3
Socorro v. Aquino, 35 S C R A 373, 376.
4
Pacis v. C O M E L E C , 29 S C R A 24, 29.
159
V O L . III
6
This principle is skillfully explained in Molina v. Somes, thus:
"The assertion by some text writers and courts that the one
who sues out an injunction without legal cause is liable on the theory
that he wrongfully induced or moved the court to take the action
which it did, is, in our judgment, without stable foundation. He who
obtains a thing by permission of the law, and by strict compliance
with the law, ought not to be held liable in any manner except that
specified in the law under which he operates. He ought not to be
held for a trespass or other wrong, as they assert he may be in
replevin, etc. H o w can it be logically said that one who, acting in
good faith, obtains an injunction or property under a replevin in
precisely the manner required by l a w has committed a legal wrong
against the person as to whom the law authorized him to obtain the
injunction? The law itself, by virtue of the conditions which it im-
poses, fully protects the defendant against the evil effects of the
injunction; and if the party securing the injunction has performed
all that the law requires of him as a condition precedent to obtaining
it, what more can be asked? In return for the restrictions of the
injunction, the defendant has been given certain legal rights against
the plaintiff by w a y of an undertaking which, by virtue of the l a w
itself, fully compensates him for the change of position. T h e bond is
full compensation for the privileges which the plaintiff receives and
for those which the defendant loses. T h e l a w says so.
T h e statute asserts that the doing of certain things by the

plaintiff shall be a complete compensation to the defendant for that
which the law requires him to g i v e up. If it is not complete compen-
sation, then the law is unjust, in that it requires the defendant to
give up something for which he receives no compensation. It is not to
be presumed or believed that the legislature intended to do such a
thing, and it is not to be presumed or believed that it did it. But,
even if the law be unjust, an injustice of the l a w cannot be cured by
an injustice to a party. T h e g i v i n g of the undertaking legally equal-
izes the status of the two. To put upon the plaintiff the additional
burden of a trespass or other wrong would destroy the legal equilib-
6
rium and produce an injustice."
b
Supra, at pp. 64-65.
Q u o t e d in P a d s v. C O M E L E C , supra.
160
T h e last paragraph, however of Section 20, Rule 57 provides

that nothing herein contained shall prevent the party against whom
the attachment was issued from recovering in the same action the
damages awarded to him from any property of the attaching party
not exempt from execution should the bond or deposit given by the
7
latter be insufficient or fail to satisfy the award.
S E C . 9. When final injunction granted. If after the

t r i a l of the action it a p p e a r s that the a p p l i c a n t is entitled to
h a v e the act o r acts c o m p l a i n e d o f p e r m a n e n t l y enjoined,
the c o u r t shall g r a n t a final i n j u n c t i o n p e r p e t u a l l y restrain-
i n g the p a r t y o r p e r s o n e n j o i n e d f r o m the commission o r
c o n t i n u a n c e o f the act o r acts o r c o n f i r m i n g the p r e l i m i n a r y
m a n d a t o r y i n j u n c t i o n . (10a)
COMMENT:
S E C . 10. When final injunction granted. If upon the trial of

the action it appears that the plaintiff is entitled to have the act
complained of permanently enjoined, the court shall grant a final
injunction perpetually restraining the defendant from the commis-
sion or continuance of the act or confirming the preliminary manda-
tory injunction.
NO S U B S T A N T I A L C H A N G E . "Restraining the defendant" was

changed to "restraining the party or person enjoined."
PENALTY FOR REFUSAL TO COMPLY OR VIOLATION OF

INJUNCTION
An Injunction duly issued must be obeyed, however, erroneous,
the action of the court may be until a higher court overrules such
1
action.
7
See Comments under this Rule, infra.
^ s a r i o Textile Mills, Inc. v. Court of Appeals, G.R. N o . 137326, August 25,

2003), 409 S C R A 515, 52, citing Cagayan Valley Enterprises v. Court of Appeals, G.R.
N o . 78413, 8 November 1989, 179 S C R A 218.
161
V O L . III
Under Section 1, Rule 71, if the contempt consists in the viola-

tion of a writ of injunction, temporary restraining order or status
quo order, he may also be ordered to make complete restitution to
the party injured by such violation of the property involved or such
amount as may be alleged and proved.
Supreme Court Administrative Circular N o . 22-95 which
took effect on 16 November 1995 amended Sections 1 and 6
(now Section 7), Rule 71 of the Rules of Court which provide
the penalties for direct and indirect contempt committed against
superior and inferior courts.
Under the amendment, in case of violation of writs of injunc-

tion or restraining orders, the rule now provides that the court may
order complete restitution through the return of the property or the
payment of the amount alleged and proved. Restitution is defined as
the "act of making good or giving equivalent for any loss, damage or
injury; and indemnification." Petitioners are not excused from com-
plying with the writ of injunction on the ground a fire destroyed the
machines, considering that the fire occurred years after the court had
ordered petitioners to return the machines. W h e r e there is nothing
more to return in this case because of the destruction of the sewing
machines, the officers must be held personally liable for the restitu-
tion of the money equivalent of the lost sewing machines. T h e resti-
tution of the value of the sewing machines is not as a declaration of
ownership in but pursuant to Supreme Court Administrative Circu-
lar N o . 22-95.
The Court affirmed the complete restitution of the value of the

sewing machines to R M C by petitioners consistent w i t h the reme-
dial and preservative principles of citations for contempt, and as
demanded by the respect due the orders, writs and processes of the
2
courts of justice.
2
Supra.
162
RULE 59
RECEIVERSHIP
S E C T I O N 1. Appointment of receiver. U p o n a verified

a p p l i c a t i o n , o n e o r m o r e r e c e i v e r s o f the p r o p e r t y subject o f
the action o r p r o c e e d i n g m a y b e a p p o i n t e d b y the court w h e r e
the action i s p e n d i n g , o r b y the C o u r t o f A p p e a l s o r b y the
S u p r e m e C o u r t , or a m e m b e r thereof, in the f o l l o w i n g cases:
( a ) W h e n i t a p p e a r s f r o m the v e r i f i e d a p p l i c a t i o n , a n d
s u c h o t h e r p r o o f a s the c o u r t m a y r e q u i r e , that the p a r t y
a p p l y i n g f o r the a p p o i n t m e n t of a r e c e i v e r h a s an interest in
the p r o p e r t y o r f u n d w h i c h i s the s u b j e c t o f the action o r
p r o c e e d i n g , a n d that s u c h p r o p e r t y o r f u n d i s i n d a n g e r o f
b e i n g lost, r e m o v e d , o r m a t e r i a l l y i n j u r e d unless a r e c e i v e r
b e a p p o i n t e d t o a d m i n i s t e r a n d p r e s e r v e it;
( b ) W h e n i t a p p e a r s i n a n action b y the m o r t g a g e e f o r
the f o r e c l o s u r e of a m o r t g a g e that the p r o p e r t y is in d a n g e r
o f b e i n g w a s t e d o r d i s s i p a t e d o r m a t e r i a l l y i n j u r e d , a n d that
its v a l u e is p r o b a b l y insufficient to d i s c h a r g e the m o r t g a g e
d e b t , o r that the p a r t i e s h a v e s o s t i p u l a t e d i n the contract o f
mortgage;
( c ) A f t e r j u d g m e n t , t o p r e s e r v e the p r o p e r t y d u r i n g
the p e n d e n c y of an a p p e a l , or to dispose of it a c c o r d i n g to
the j u d g m e n t , o r t o a i d execution w h e n the execution h a s
b e e n r e t u r n e d unsatisfied o r the j u d g m e n t o b l i g o r refuses t o
a p p l y his p r o p e r t y in satisfaction of the j u d g m e n t , or other-
w i s e to c a r r y the j u d g m e n t into effect;
( d ) W h e n e v e r in other cases it a p p e a r s that the appoint-
ment of a r e c e i v e r is the most convenient a n d feasible means
of p r e s e r v i n g , administering, or d i s p o s i n g of the p r o p e r t y in
litigation.
D u r i n g the p e n d e n c y o f a n a p p e a l , the appellate court
m a y a l l o w an application for the appointment of a receiver
163
V O L . III
t o b e f i l e d i n a n d d e c i d e d b y the c o u r t o f o r i g i n a n d the
receiver a p p o i n t e d to be subject to the control of s a i d court,
(la)
COMMENT:
2. The changes are:

a. "Upon a verified application" and the issuance by "or a
member thereof meaning the Court of Appeals or the Supreme Court
were added in the first paragraph. T h e terms "real or personal" to
describe property was deleted as a surplusage. Subparagraph ( a )
with respect to corporations was deleted as this falls under the
jurisdiction of the Securities and Exchange Commission.
b. An added ground was included:
"During the pendency of an appeal, the appellate court m a y

allow an application for the appointment of a receiver to be filed in
and decided by the court of origin and the receiver appointed to be
subject to the control of said court."
c. As in the granting of a preliminary injunction, a receiver

may be appointed by the court in which the action is pending, be it a
municipal court, a regional trial court, the C A , the SC, or a member
thereof. Under BP 129, a municipal court m a y now appoint a re-
ceiver. (Feria)
3. Notes a n d Cases:
a. C o n c e p t of a R e c e i v e r
A receiver is a person appointed by the court in behalf of all the

parties to the action for the purpose of preserving and conserving
the property in litigation and prevent its possible destruction or
1
dissipation, if it were left in the possession of any of the parties.
1 N o r m a n d y v. Duque, 29 S C R A 385, 391 (1969); Cia. General de Tabacos v.

Gauzon, 20 Phil. 261, 267-268 (1911); Commodities Storage v. C A , G.R. N o . 125008,
June 19,1997, 274 S C R A 439.
164
Rule 59 RECEIVERSHIP Sec. 1
A receiver is a representative of the court appointed for the

purpose of preserving and conserving the property in litigation and
prevent its possible destruction or dissipation, if it were left in the
possession of any of the parties. T h e receiver is not the representa-
tive of any of the parties but of all of them to the end that their
interests may be equally protected with the least possible inconven-
ience and expense. It is inherent in the office of a receiver not only
that he should act at all times with the diligence and prudence of a
good father of a family but should also not to incur any obligation or
expenditure without leave of court and it is the responsibility of the
court to supervise the receiver and see to it that he adheres to the
above standard of his trust and limits the expenses of the receiver-
ship to the minimum. For these reasons, it is generally the receiver-
ship court that is in a better position to determine whether a par-
ticular expenditure is reasonable and justified or not and its ruling
2
thereon m a y not be disturbed by the Supreme Court.
b. Purpose of Receiver
One purpose for which a receivership is established is to pre-

serve the property d i n i n g the pendency of the litigation or to dispose
of it according to the judgment when it is finally rendered or other-
3
wise to carry the judgment into effect.
c. Reason for Appointing Receiver
T h e court is not provided with adequate resources and machin-

ery for dealing with the situation presented by the appointment of a
4
receiver and all the details connected therewith.
d. W h o may be appointed Receiver

T h e general rule is that neither party to a litigation should be
a
appointed as a receiver without the other's consent because a re-
ceiver ought to be an indifferent person between the parties" and
6
"should be impartial and disinterested."
2
Normandy v. Duque, 29 S C R A 385.
3
Francisco v. Rodriguez, 6 S C R A 443.
4
Velasco v. Gochuico, 28 Phil. 39.
6
Alcantara v. Abbas, 9 S C R A 54, 58 (1963); Acuna v. Calauag, 101 Phil. 446,
April 30,1957.
165
V O L . III
Under Article 101 of the Family Code, if a spouse without just

cause abandons the other or fails to comply with his or her obliga-
tions to the family, the aggrieved spouse may petition the court for
receivership.
Under Section 41, Rule 39 of the Rules of Court on Execution of
Judgments, the judge may, by order, appoint the sheriff or other
proper officer or persons, receiver of the property of the judgment
debtor x x x. If a bonded officer be appointed receiver, he and his
sureties shall be liable on his official bond as such receiver, but if
another person be appointed he shall give a bond as receiver as in
other cases.
e. W h e n M a y Receiver be Appointed
A receiver of real or personal property, which is the subject of

the action, may be appointed by the court when it appears from the
pleadings or such other proof as the judge may require, that the
party applying for such appointment has: ( 1 ) an actual interest in it;
and ( 2 ) that ( a ) such property is in danger of being lost, removed or
materially injured; or ( b ) whenever it appears to be the most conven-
ient and feasible means of preserving or administering the property
6
in litigation.
The appointment of a receiver is not a matter of absolute right.

7
It depends upon the sound discretion of the court and is based on
8
facts and circumstances of each particular case.
In a case, Petitioners claim that the appointment of a receiver

is justified under Section 1(b) of Rule 59. T h e y argue that the ice
plant which is the subject of the action was in danger of being lost,
removed and materially injured because of the following "imminent
perils":
"6.1 Danger to the lives, health and peace of mind of the

inhabitants living near the Sta. M a r i a Ice Plant;
6
Ralla v. Hon. Alcasid, 116 Phil. 622, 625 (1962); Commodities Storage v. C A ,
274 S C R A 439, June 19,1977.
7
C a l and San Jose v. Roldan, 76 Phil. 445, 453 (1946); Mendoza v. Arellano, 36
Phil. 59, 63-64 (1917).
8
Duque v. C F I of Manila, 13 S C R A 420, 423 (1965); Ralla v. Alcasid, supra, at
625; L a m a v. Apacible, 79 Phil. 68, 73-74 (1947); Commodities Storage v. C A , 274
S C R A 439, June 19, 1997.
166
6.2 Drastic action or sanctions that could be brought

against the plaintiff by affected third persons, including work-
ers who have claims against the plaintiff but could not be paid
due to the numbing manner by which the defendant took the
Sta. M a r i a Ice Plant;
6.3 T h e rapid reduction of the Ice Plant into a scrap

heap because of evident incompetence, neglect and vandalism."
T h e C o u r t held:
A petition for receivership under Section 1(b) of Rule 59 re-

quires that the property or fund which is the subject of the action
must be in danger of loss, removal or material injury which necessi-
tates protection or preservation. T h e guiding principle is the preven-
tion of imminent danger to the property. If an action by its nature,
does not require such protection or preservation, said remedy can-
9
not be applied for and granted.
In the instant case, we do not find the necessity for the appoint-
ment of a receiver. Petitioners have not sufficiently shown that the
Sta. M a r i a Ice Plant is in danger of disappearing or being wasted
and reduced to a "scrap heap." N e i t h e r have they proven that the
property has been materially injured which necessitates its protec-
10
tion and preservation. In fact, at the hearing on respondent bank's
motion to dismiss, respondent bank, through counsel, manifested in
open court that the leak in the ice plant had already been remedied
11
and that no other leakage's had been reported since. This state-
ment has not been disputed by petitioners.
At the time the trial court issued the order for receivership of
the property, the problem had been remedied and there was no
imminent danger of another leakage. W h a t e v e r danger there was to
the community and the environment had already been contained.
9
C a l and San Jose v. Roldan, supra, at 453; Ysasi v. Fernandez, 23 S C R A 1079
(1968); Cochingyan v. Cloribel, 76 S C R A 394, 397 (1977); Ylarde v. Enriquez, 78 Phil.
527, 531 (1947).
10
National Investment and Development Corp. v. Judge Aquino; Phil. National
Bank v. Judge Aquino, 163 S C R A 153, 174 (1988).
"Comment, pp. 7, 14, Rollo, pp. 171, 178.
167
V O L . III
The general rule is that neither party to a litigation should be

appointed as receiver without the consent of the other because a
receiver should be a person indifferent to the parties and should be
12
impartial and disinterested. The receiver is not the representative
of any of the parties but of all of them to the end that their interests
may be equally protected with the least possible inconvenience and
13
expense.
The power to appoint a receiver must be exercised with ex-
treme caution. There must be a clear showing of necessity therefor
in order to save the plaintiff from grave and irremediable loss or
14
damage. It is only when the circumstances so demand, either be-
cause there is imminent danger that the property sought to be placed
in the hands of a receiver be lost or because they run the risk of
being impaired, endeavoring to avoid that the injury thereby caused
15
be greater than the one sought to be avoided.
4. Appointment of Receiver D u r i n g Pendency of A p -

peal
Although the perfection of an appeal deprives the trial court of

jurisdiction over the case, said court retains jurisdiction as regards
the preservation of the property under litigation and involved in the
appeal, including necessarily the authority to appoint a receiver
who has the power to take and keep possession of the property in
controversy. T h e appointment of the receiver,with order to deliver
possession to him of the properties do not touch upon, much less
decide the question of possession. It merely means that pending
appeal and to preserve the property and keep the rents, the trial
16
court through its officer, the receiver, would take possession.
( a ) After final judgment a receiver m a y be appointed as an

17
aid to the execution of j u d g m e n t .
12
Alcantara v. Abbas, 9 S C R A 54, 58 (1963); Cia. General de Tabacos v. Gauzon,
supra, at 267-268; Teal Motor Co. v. Court of First Instance of Manila, 51 Phil. 549,
563, 567 (1928).
13
N o r m a n d y v. Duque, supra, at 391.
14
Mendoza v. Arellano, supra, at 64.
15
Diaz v. Hon. Nietes, 110 Phil. 606, 610 (1960); Ylarde v. Enriquez, supra, at
530; Commodities Storage v. C A , 274 S C R A 439, June 19, 1997.
16
Acuna, et al. v. Hon. Caluag, et al., 101 Phil. 446, April 30, 1957.
17
Phil. Trust v. Santamaria, 53 Phil. 463.
168
( b ) Appointment of a receiver over the property in custodia

18
legis may be allowed when it is justified by special circumstances,
as when it is reasonably necessary to secure and protect the right of
the real owner, (p. 623)
5. R e c e i v e r s h i p not A l l o w e d t o T a k e A w a y Possession
of Property
a. Receivership does not lie or is not proper in an action for

injunction such as the one filed by the plaintiff; the petition filed for
the appointment of a receiver is based on the ground that it is the
most convenient and feasible means of preserving, administering
and disposing of the properties in litigation, but according to plain-
tiff's theory or allegations in their complaints, neither the lands nor
palay harvested therein are in litigation; the issue raised in the
complaint is whether or not defendants intend or were intending to
enter or work or harvest whatever existing fruits could then be
found in the lands described in the complaint, which were alleged to
be the exclusive property and in the actual possession of the plain-
19
tiffs.
b. A receiver should not be appointed to deprive a party who

is in possession of the property in litigation, just as a writ of prelimi-
nary injunction should not be issued to put a party in possession of
the property in litigation and deprive another who is in possession
20
thereof except in a v e r y clear case of evident usurpation.
c. T h e Supreme Court cannot look with favor on any judicial

order or arrangement whereby the possession of a certain property
by one of the parties which that court and the Court of Appeals, in
previous cases, considered as just and reasonable, should be trans-
ferred to a receiver, if by doing so the other party would be obtaining
indirectly what he could not obtain directly, namely, deprive the
former of the possession of the property until the controversy be-
21
tween them is finally settled.
18
Dolar v. Sundiam, 38 S C R A 616.
19
Calo, et al. v. Roldan, March 30, 1946, 76 Phil. 445.
20
Y l a r d e v. Enriquez, 78 Phil. 527, June 25, 1947; Leviste v. Ramos, et al., G.R.
N o . L-14769, Nov. 29, 1960, 119 Phil. 190; Arcega v. Pecson, 78 Phil. 743, July 28,
1947; Descallar v. Court of Appeals, 224 S C R A 566 (1993).
2 1
D e los Reyes v. Hon. Bayona, et al., 107 Phil. 49, March 29, 1960.
169
V O L . III
6. R e c e i v e r s h i p in P a r t i t i o n P r o c e e d i n g s
While in a partition proceeding it is generally unnecessary for
22
the court to appoint a receiver, however, where the relations among
the co-owners are strained, and no satisfactory arrangement for
administration can be accomplished, the appointment of a receiver
is not an abuse of discretion. It is well-established that only such
abuse would warrant interference by an appellate court with an
23
order granting receivership.
7. Rights, interest a n d p a r t i c i p a t i o n of p a r t n e r not

included
Where the property of the partnership is put under receiver-
ship, it does not include the rights, interest and participation of a
partner in that partnership and it m a y properly be sold on execu-
24
tion.
S E C . 2. Bond on appointment of receiver. B e f o r e issu-

i n g the o r d e r a p p o i n t i n g a r e c e i v e r the c o u r t shall r e q u i r e
the a p p l i c a n t to file a b o n d e x e c u t e d to the p a r t y a g a i n s t
w h o m the a p p l i c a t i o n i s p r e s e n t e d , i n a n a m o u n t t o b e f i x e d
b y the court, t o the effect that the a p p l i c a n t w i l l p a y s u c h
p a r t y all d a m a g e s h e m a y s u s t a i n b y r e a s o n o f the a p p o i n t -
ment o f s u c h r e c e i v e r i n case the a p p l i c a n t s h a l l h a v e p r o -
c u r e d such a p p o i n t m e n t w i t h o u t sufficient cause; a n d the
court may, in its discretion, at a n y time after the a p p o i n t -
ment, r e q u i r e a n a d d i t i o n a l b o n d a s f u r t h e r s e c u r i t y f o r s u c h
damages. (3a)
COMMENT:
Taken from Sec. 3 of the former Rule.
22Tuason v. Conception, 54 Phil. 408.

23Chunaco, et al. v. Hon. Quicho, et al., 105 Phil. 1254, January 30,1959; Ralla
v. Alcasid, 116 Phil. 622, October 30,1962.
24Pandes v. Teodoro, 94 Phil. 942, May 12,1954.
170
Unlike the former rule, the present rule now does not allow an
ex-parte application and requires the posting of a bond in all cases.
T h e former Sec. 2. Creditor or stockholder may apply for re-

ceiver for corporation. "When a corporation has been dissolved, or
is insolvent, or is in imminent danger of insolvency, or has forfeited
its corporate rights, a receiver m a y be appointed on the complaint of
a creditor, stockholder or member of the corporation" was deleted as
this properly falls w i t h the Securities and Exchange Commission.
S E C . 3. Denial of application or discharge of receiver.

T h e a p p l i c a t i o n m a y b e d e n i e d , o r the r e c e i v e r d i s c h a r g e d ,
w h e n the a d v e r s e p a r t y f i l e s a b o n d e x e c u t e d t o the appli-
cant, i n a n a m o u n t t o b e f i x e d b y the court, t o the effect that
s u c h p a r t y w i l l p a y the a p p l i c a n t all d a m a g e s h e m a y suffer
b y r e a s o n o f the acts, omissions, o r o t h e r m a t t e r s specified i n
the a p p l i c a t i o n a s g r o u n d f o r s u c h a p p o i n t m e n t . T h e receiver
m a y also b e d i s c h a r g e d i f i t i s s h o w n that his a p p o i n t m e n t
w a s o b t a i n e d w i t h o u t sufficient c a u s e . ( 4 a )
COMMENT:
No Substantial change except in style "the adverse party may

oppose the affidavits thus presented by counter-affidavits" was de-
leted as a surplusage.
3. N o t e s a n d Cases:
a. A p p l i c a n t m u s t h a v e interest
A receiver of real or personal property, which is the subject of
the action, may be appointed by the court when it appears from the
pleadings that the party applying for the appointment of receiver
has an interest in the property. The right, interest, or claim in prop-
171
V O L . III
erty, to entitle one to a receiver over it, must be present and exist-
1
ing.
b. Necessity o f I m m i n e n t D a n g e r t o P r o p e r t y
The prevention of imminent danger to property is the guiding
principle that governs courts in the matter of appointing receivers.
Under Section 1(b), Rule 59 of the Rules of Court, it is necessary in
granting the relief of receivership that the property or fund be in
danger of loss, removal or material injury.
If the plaintiff, in its petition for receivership fails to present

any evidence to establish the requisite condition that the property is
in danger of being lost, removed or materially injured, unless a
receiver is appointed to guard and preserve it, the petition for re-
2
ceivership will be denied.
The appointment of a receiver is not proper where the rights of

the parties are still to be determined by the court one of w h o m is in
3
possession of the property.
Only when the property is in danger of being materially in-

jured or lost m a y the appointment of a receiver be justified, such as
the prospective foreclosure of a mortgage thereon for non-payment
of the mortgage loans despite the considerable income derived from
the property, or if portions thereof are being occupied by third per-
4
sons claiming title adverse thereto.
c. Discretion in Appointment of Receiver to be Exer-

cised w i t h E x t r e m e C a u t i o n
T h e appointment of a receiver depends upon the sound discre-

tion of the court. It is not a matter of absolute right. T h e facts and
circumstances of each particular case determine the soundness of
the exercise of such discretion. A m o n g the consequences and effects
considered by the courts before appointing a receiver are: ( a ) whether
or not the injury resulting from such appointment would probably
êc. 1(b), Rule 59, Rules of Court.

2
National Investment and Development Corp. v. Judge Aquino, 163 S C R A 153,
30 June 1988,
3
Descallar v. Court of Appeals, 224 S C R A 566 (1993).
4
Supra.
172
be greater than the injury ensuing if the status quo is left undis-
turbed; and ( b ) whether or not the appointment will imperil the
interest of others whose rights deserve as much a consideration
5
from the court as those of the person requesting for receivership.
lb appoint a receiver is a delicate one. Said power should be

exercised with extreme caution and only when the circumstances so
demand, either because there is imminent danger that the property
sought to be placed in the hands of a receiver be lost or because they
run the risk of being impaired, endeavoring to avoid that the injury
thereby caused be greater than the one sought to be avoided. For
this reason, before the remedy is granted, the consequences or ef-
fects thereof should be considered or at least, estimated in order to
avoid causing irreparable injustice to others who are entitled to as
6
much consideration as those seeking it.
d. C l e r k of C o u r t not to be A p p o i n t e d as Receiver
T h e practice of appointing as receiver the Clerk of Court is

7
frowned upon.
S E C . 4. Oath and bond of receiver. B e f o r e e n t e r i n g

u p o n his duties, the r e c e i v e r shall b e s w o r n t o p e r f o r m them
faithfully, a n d s h a l l f i l e a b o n d , e x e c u t e d t o s u c h p e r s o n a n d
i n s u c h s u m a s the c o u r t m a y direct, t o the effect that h e w i l l
faithfully d i s c h a r g e his duties i n the action o r p r o c e e d i n g
a n d o b e y the o r d e r s o f the c o u r t . ( 5 a )
COMMENT:
6
Ralla, et al. v. Hon. Alcasid, et al., 116 Phil. 622, October 30, 1962; Duque v.
C F I of Manila, 13 S C R A 420, March 26,1965.
''Diaz, et al. v. Hon. Nietes, et al., 110 Phil. 606, December 31, 1960; Ylarde v.
Enriquez, 78 Phil. 527, June 25,1947; Commodities Storage v. C A , G.R. No. 125008,
June 19,1997.
7
De8callar v. Court of Appeals, 224 S C R A 588.
173
V O L . III
2. No Substantial C h a n g e
The receiver must be required to take an oath pursuant to this
1
section before being allowed to assume his receivership.
The appointment of a receiver creates no lien in favor of any
party applying for it; it gives no advantage or preference to such
parties over other claimants to the property. It does not determine
the rights of the parties or prejudge the parties' purported rights in
2
the main suit.
S E C . 5. Service of copies of bonds; effect of disapproval of

same. T h e p e r s o n filing a b o n d in a c c o r d a n c e w i t h the
provisions of this R u l e shall f o r t h w i t h s e r v e a c o p y t h e r e o f
on each interested party, w h o m a y e x c e p t to its sufficiency
or of the surety or sureties t h e r e o n . If either the applicant's
o r the receiver's b o n d i s f o u n d t o b e insufficient i n a m o u n t ,
or if the surety or sureties t h e r e o n fail to justify, a n d a b o n d
sufficient i n a m o u n t w i t h sufficient sureties a p p r o v e d after
justification i s not f i l e d f o r t h w i t h , the a p p l i c a t i o n shall b e
d e n i e d o r the r e c e i v e r d i s c h a r g e d , a s the c a s e m a y b e . I f the
b o n d of the a d v e r s e p a r t y is f o u n d to be insufficient in a m o u n t
or the surety or sureties t h e r e o n fail to justify, a n d a b o n d
sufficient i n a m o u n t w i t h sufficient sureties a p p r o v e d after
justification i s not f i l e d f o r t h w i t h , the r e c e i v e r shall b e a p -
p o i n t e d o r r e - a p p o i n t e d , a s the case m a y b e . ( 6 a )
COMMENT:
Citibank v. Court of Appeals, 304 S C R A 679, March 17, 1999.

2
Heirs of Andres v. C F I of N u e v a Ecija, 86 Phil. 571.
174
3. Notes a n d Cases:
a. Distinction B e t w e e n B o n d a n d C o u n t e r - b o n d
The applicant's bond answers for damages that the adverse

party may suffer by reason of the appointment of a receiver.
T h e counter-bond by the oppositor is conditioned upon the pay-

ment of all damages which the applicant may suffer by reason of the
1
acts, omission or other matters in the application for receivership.
S E C . 6. General powers of receiver. S u b j e c t to the con-

trol o f the c o u r t i n w h i c h the action o r p r o c e e d i n g i s p e n d -
ing, a r e c e i v e r shall h a v e the p o w e r t o b r i n g a n d d e f e n d , i n
s u c h capacity, actions i n his o w n n a m e ; t o t a k e a n d k e e p
possession of the p r o p e r t y in c o n t r o v e r s y ; to r e c e i v e rents;
to collect d e b t s d u e to himself as r e c e i v e r or to the f u n d ,
p r o p e r t y , estate, p e r s o n , o r c o r p o r a t i o n o f w h i c h h e i s the
receiver; t o c o m p o u n d f o r a n d c o m p r o m i s e the same; t o m a k e
transfers; t o p a y o u t s t a n d i n g debts; t o d i v i d e the m o n e y a n d
o t h e r p r o p e r t y that shall r e m a i n a m o n g the p e r s o n s legally
entitled to r e c e i v e the same; a n d g e n e r a l l y to do such acts
r e s p e c t i n g the p r o p e r t y a s the c o u r t m a y a u t h o r i z e . H o w -
ever, f u n d s in the h a n d s of a r e c e i v e r m a y be invested only
b y o r d e r o f the c o u r t u p o n the w r i t t e n consent o f all the
p a r t i e s to the action. ( 7 a )
N o action m a y b e f i l e d b y o r a g a i n s t a r e c e i v e r w i t h o u t
l e a v e o f the c o u r t w h i c h a p p o i n t e d h i m . ( n )
COMMENT:
No substantial Change except the addition of the last sentence
"No action may be filed by or against a receiver without leave of the
court which appointed him."
'Luzon Surety v. De Marbella, 109 Phil. 734, Sept. 30, 1960.
175
V O L . III
a. A receiver has no power to enter into a contract without
1
the approval of the court.
b. Custodia Legis
Property under receivership is property under custodia legis
2
and is under the administration and control of the court.
c. N o action a g a i n s t r e c e i v e r w i t h o u t l e a v e o f c o u r t
It is not the policy of the law to permit actions to be brought

against a receiver based on his management of the receivership
property without leave of the court which appointed him. A receiver
is to be regarded as the arm, officer or representative of the court
appointing him. The custody of the receiver is the custody of the
court. His acts and possession are the acts and possession of the
court, and his contracts and liabilities are, in contemplation of law,
the contracts and liabilities of the court. As a necessary consequence,
a receiver is subject to the control and supervision of the court at
every step in his management of the property or funds placed in his
hands. On the other hand, it is the duty of the court to protect the
possession of its receiver and to prevent all interference w i t h him in
the performance of his official functions and duties. So thoroughly is
this recognized, that it is well-settled that any unauthorized inter-
ference with a receiver's possession of the property committed to his
charge, is a contempt of the court by which he was appointed. It is
the relationship which exists between the court and the receiver
which has led to the general rule, followed in jurisdictions where
statutes have not been passed to the contrary, that no action can be
brought against a receiver without leave of the court appointing
him. A n d this rule applies as well where a suit is brought to recover
a money judgment merely as where it is to take from the receiver
specific property whereof he is in the possession by order of the court
(See generally Cys. Receivers and authorities). If actions against
him are permitted indiscriminately, the interest of those concerned
in the property held by the receiver w i l l suffer and the court will be
Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., 73 S C R A

564. Feria.
êntosa v. Fernan, 10 S C R A 59.
176
hampered and limited in its control over him. One who feels himself
sufficiently aggrieved by acts of a receiver to warrant active inter-
vention should take the matter into the court which appointed the
receiver and ask either for an accounting or take some other pro-
ceeding, and ask for the consequent judgment of the court on the
acts complained of, or for leave to bring an action directly. If, under
the facts presented, it is the judgment of the court that the interests
of all concerned w i l l be best observed by such a suit or by any other
3
proceeding, permission w i l l be given to bring it.
d. Control of Court
A receiver is a representative of the court appointed for the

purpose of preserving and conserving the property in litigation and
prevent its possible destruction or dissipation, if it were left in the
possession of any of the parties. T h e receiver is not the representa-
tive of any of the parties but of all of them to the end that their
interests m a y be equally protected w i t h the least possible inconven-
ience and expense. It is inherent in the office of a receiver not only
that he should act at all times with the diligence and prudence of a
good father of a family but should also not incur any obligation or
expenditure without leave of court and it is the responsibility of the
court to supervise the receiver and see to it that he adheres to the
above standard of his trust and limits the expenses of the receiver-
ship to the minimum. For these reasons, it is generally the receiver-
ship court that is in a better position to determine whether a par-
ticular expenditure is reasonable and justified or not and its ruling
4
thereon may not be disturbed by the Supreme Court.
S E C . 7. Liability for refusal or neglect to deliver property

to receiver. A p e r s o n w h o refuses or neglects, u p o n reason-
a b l e d e m a n d , to d e l i v e r to the receiver all the property, money,
b o o k s , d e e d s , notes, bills, d o c u m e n t s a n d p a p e r s w i t h i n his
p o w e r o r control, subject o f o r i n v o l v e d i n the action o r p r o -
ceeding, or in case of d i s a g r e e m e n t , as d e t e r m i n e d a n d or-
d e r e d b y the court, m a y b e p u n i s h e d for contempt a n d shall
be l i a b l e to the r e c e i v e r for the m o n e y or the v a l u e of the
3
Dela Riva v. Molina Salvador, 32 Phil. 278.
4
Normandy v. Duque, 29 S C R A 385.
177
V O L . III
p r o p e r t y a n d other things so r e f u s e d or neglected to be sur-

r e n d e r e d , together w i t h all d a m a g e s that m a y h a v e b e e n sus-
tained by the p a r t y or parties entitled thereto as a conse-
quence of such refusal or neglect, ( n )
COMMENT:
This is a new provision which penalizes a person for refusal or
neglect to deliver property under receivership.
S E C . 8. Termination of receivership; compensation of re-

ceiver. W h e n e v e r the court, motu proprio, or on m o t i o n of
either party, shall d e t e r m i n e that the necessity f o r a r e c e i v e r
no l o n g e r exists, it shall, after d u e notice to all interested
parties a n d h e a r i n g , settle the a c c o u n t s of the receiver, di-
rect the d e l i v e r y o f the f u n d s a n d o t h e r p r o p e r t y i n his pos-
session to the p e r s o n a d j u d g e d to be entitled to r e c e i v e them,
a n d o r d e r the d i s c h a r g e o f the r e c e i v e r f r o m f u r t h e r d u t y a s
such. T h e c o u r t shall a l l o w the r e c e i v e r s u c h r e a s o n a b l e com-
pensation a s the c i r c u m s t a n c e s o f the c a s e w a r r a n t , t o b e
t a x e d a s costs a g a i n s t the d e f e a t e d party, o r a p p o r t i o n e d , a s
justice r e q u i r e s . (8a)
COMMENT:
Taken from the former Section 8 of the same Rule. No substan-

tial change.
a. T e r m i n a t i o n of r e c e i v e r s h i p
Receivership may be dissolved when in the opinion of the judge,

its continuance is not justified by the facts and circumstances of the
1 2
case or when the court is convinced that it is abused.
'Samson v. Araneta, 64 Phil. 549.

2
Duque v. C F I of Manila, 13 S C R A 420 (1965).
178
However, the termination of receivership cannot be exercised

arbitrarily.
Failure to g i v e notice to a receiver of a motion to discharge

3
receivership is not jurisdictional.
W h e n the defendant admits he had notice of the filing and a

copy of the receiver's report on the 9th or 10th of June, 1921, before
it was confirmed, and did not object to its confirmation and waited
until after the court adjourned and until July 9, 1921, nearly 30
days after the report was confirmed, to file exceptions to it and to file
motion to set the decree of confirmation aside, the court will not be
put in error for refusing to grant his motion or petition. T h e defend-
4
ant had w a i v e d his right to object and except to its confirmation.
b. Compensation of Receiver
W h e n the services of a receiver who has been properly ap-

pointed terminates, his compensation is to be charged against the
defeated party, or the prevailing litigant m a y be made to share the
expense as justice requires. Consequently, the trial court's order
approving the receiver's compensation to be charged solely against
5
the funds under its receivership is without legal justification.
S E C . 9. Judgment to include recovery against sureties.

T h e a m o u n t , i f any, t o b e a w a r d e d t o a n y p a r t y u p o n a n y
b o n d f i l e d i n a c c o r d a n c e w i t h the p r o v i s i o n s o f this R u l e ,
shall b e c l a i m e d , a s c e r t a i n e d , a n d g r a n t e d u n d e r the s a m e
p r o c e d u r e p r e s c r i b e d in Section 20 of R u l e 57. (9a)
COMMENT:
Taken from Sec. 9 of the former rule which reads: Judgment to
include recovery against sureties The amount, if any, to be awarded
3
So Chu v. Nepomuceno, 29 Phil. 208.
4
Phil. Trust v. Hongkong and Shanghai Banking Corp., 67 Phil. 205.
"Trader's Royal Bank v. Intermediate Appellate Court, 273 S C R A 521, June 17,
1997.
179
V O L . III
to either party upon any bond filed by the other in accordance with
the provisions of this rule, shall be claimed, ascertained, and granted
under the same procedure as prescribed in Section 20 of Rule 57.
Under the present Rule: The amount, if any, to be awarded to
any party upon any bond filed in accordance with the provisions of
this Rule, shall be claimed, ascertained, and granted under the same
procedure prescribed in Section 20 of Rule 57.
3. Notes a n d Case:
a. R e c o v e r y of d a m a g e s in s a m e action
Damages on account of the appointment without cause of a

receiver, must be recovered in the same action in which the receiver
was appointed, and the question should be determined in the final
1
judgment. It cannot be litigated in a separate action.
b. It has been held that the procedure laid down in Section

20, Rule 57, in conjunction with this section, is to be followed only in
the execution of a bond filed by either party in the case where the
receiver is appointed but not in the execution of the receiver's bond
which is filed by the receiver himself and his surety. In other words,
the procedure outlined in Rule 57, Sec. 20, is required to be followed
only in proceedings against the bond filed by the applicant for re-
ceivership, which answers for the damages that the adverse party
may sustain by reason of the appointment of a receiver in case the
applicant shall have procured the appointment without sufficient
cause (Sec. 3), or against the counter-bond posted by the party op-
posing the appointment of the receiver, conditioned to pay all the
damages the applicant may suffer by reason of the acts, omissions,
2
or other matters in the application for receivership.
c. It was therefore held that "Where the damages w e r e not

for unlawful appointment of a receiver, but for the receiver's mis-
management, the liability of the sureties on the bond could only be
*Nava v. Hofilena, 53 Phil. 738; Dela Riva v. Salvador, 32 Phil. 227.

2
Sec. 4; 3 Moran 121; Luzon Surety Co. v. de Marbella, 109 Phil. 734, 737, Sept.
30, 1960.
180
enforced by a separate action and not by a mere motion in the

3
receivership proceedings."
d. T h e p r e s e n t R u l e n o w e m b r a c e s all k i n d s o f d a m -
ages
T h e present Rule now embraces all kinds of damages. It is not

limited to "any bond filed by the other" but "upon any bond filed in
accordance with the provisions of this Rule, (which) shall be claimed,
ascertained, and granted under the same procedure prescribed in
Section 20 of Rule 57."
e. D a m a g e s on appeal
In a case appealed to a Court of First Instance from a court of

justice of the peace, wherein a receiver has been improvidently or
unlawfully appointed, and has thereafter been removed by the Court
of First Instance, the appropriate time and place for the adjudica-
tion of any question of damages resulting from the improper ap-
pointment of the receiver is in the course of the appellate proceed-
4
ings in that court.
f. Distinction b e t w e e n damages resulting from ap-

p o i n t m e n t o f the r e c e i v e r a n d d a m a g e s w h i c h a r i s e after
appointment of receiver
Damages resulting from the appointment of the receiver should

not be confused with damages which arise after the receiver has been
appointed, due to his negligence or mismanagement. The liability in
these two cases rests on different principles. T h e right to damages
for procuring the appointment of a receiver without just cause (there
being no malicious prosecution) is statutory, while the right to dam-
ages based on the negligence or misconduct of the receiver arises
5
under general principles of the law. In the former case the damages,
or part of them, may be caused before the receiver qualifies or takes
possession of the property. In the former case, the liability rests on
statute while the other rests on the negligence or misconduct of the
3
D e l a Rosa and Go Kee v. De Borja, 53 Phil. 995, Jan. 30,1929, citing De la Riva
v. Salvador, 32 Phil. 277.
4
Monteverde v. Nakata, 30 Phil. 608.
6
Molina v. Somes, 24 Phil. 49.
181
V O L . III
receiver. In the former the person obtaining the appointment of the

receiver is responsible for the damages, if he has signed the bond
6
described in Section 177 of the Code of Civil Procedure. In the latter,
he is not responsible in any event. T h e bond is given by the receiver,
and not by the person procuring the appointment, and the liability
of the receiver arises from his own negligence, and involves in no
way the person who obtained the appointment. For the acts of the
receiver after his appointment no one is responsible but himself and
7
his sureties.
6
Sec. 3, Rule 59; Molina v. Somes, 24 Phil. 49.
7
D e la Riva v. Salvador, 32 Phil. 277.
182
RULE 60
REPLEVIN
S E C T I O N 1. Application. A p a r t y p r a y i n g for the re-

c o v e r y of possession of p e r s o n a l p r o p e r t y may, at the com-
m e n c e m e n t o f the action o r a t a n y time b e f o r e a n s w e r , a p p l y
for a n o r d e r f o r the d e l i v e r y o f s u c h p r o p e r t y t o him, i n the
manner hereinafter provided, ( l a )
COMMENT:
a. Concept
Replevin is a proceeding by which the owner or one who has a

general or special property in the thing taken or detained seeks to
recover possession in specie, the recovery of damages being only
1
incidental.
b. Definition
T h e term replevin is popularly understood as "the return to or
recovery by a person of goods or chattels claimed to be wrongfully
taken or detained upon the person's giving security to try the matter
in court and return the goods if defeated in the action"; the writ by or
the common-law action in which goods and chattels are replevied,"
i.e., taken or gotten back by a writ for replevin"; and to replevy,
1
46 A m . Jur. 6, citing Three States Lumber Co. v. Blandas, ( C C a 6th) 133 F. 69
LRA238.
183
V O L . III
means to recover possession by an action of replevin; to take posses-

sion of goods or chattels under a replevin order. Bouvier's L a w Dic-
tionary defines replevin as "a form of action which lies to regain the
possession of personal chattels which have been taken from the
plaintiff unlawfully x x x " (or as) the writ by virtue of which the
sheriff proceeds at once to take possession of the property therein
described and transfer it to the plaintiff upon his giving pledges
which are satisfactory to the sheriff to prove his title, or return the
chattels taken if he fail so to do; the same authority states that the
term, "to replevy" means "to r e d e l i v e r goods which h a v e been
distrained to the original possessor of them, on his giving pledges in
an action of replevin." T h e term therefore may refer either to the
action itself, for the recovery of personality, or the provisional rem-
edy traditionally associated with it, by which possession of the prop-
erty may be obtained by the plaintiff and retained during the
pendency of the action. In this jurisdiction, the provisional remedy is
identified in Rule 60 of the Rules of Court as an order for delivery of
2
personal property.
c. W h o M a y Avail of Remedy
1. plaintiff where the complaint prays for recovery of pos-

3
session of personal property.
2. defendant where a counterclaim was set out in the

answer for the recovery of personal property. Reason: Counterclaim
4
is rather in the nature of cross-claim.
d. Subject Matter
Replevin is applicable only to personal property.
Ordinarily replevin m a y be brought to recover any specific per-

sonal property unlawfully taken or detained from the owner thereof,
provided such property is capable of identification and delivery; but
replevin will not lie for the recovery of real property or incorporeal
5
personal property.
A l i s o n v. Court of Appeals, 197 S C R A 587 (1991).

3
Sec. 1, Rule 60.
4
Pongos v. Hidalgo Enterprises, 47 O . G . 733.
6
Machinery Engineering Supply v. CA, 96 Phil. 70, citing 36 C.J.S. 1000 and
1001.
184
Rule 60 REPLEVIN Sec. 1
Under the Civil Code:
A R T . 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds ad-

hered to the soil;
(2) Trees, plants, and growing fruits, while they are attached
to the land or from an integral part of an immovable;
(3) Everything attached to an immovable in a fixed manner,

in such a way that it cannot be separated therefrom without breaking
the material or deterioration of the object;
(4) Statutes, reliefs, paintings or other objects for use or orna-

mentation, placed in buildings or on lands by the owner of the im-
movable in such a manner that it reveals the intention to attach them
permanently to the tenements;
(5) Machinery, receptacles, instruments or implements in-

tended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land, and which tend
directly to meet the needs of the said industry or works;
(6) Animal houses, pigeon-houses, beehives, fish ponds or

breeding places of similar nature, in case their owner has placed
them or preserves them with the intention to have them permanently
attached to the land, and forming a permanent part of it; the animals
in these plates are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or stagnant;
(9) Docks and structures which, though floating, are intended
by their nature and object to remain at a fixed place on a river, lake,
or coast;
(10) Contracts for public works, and servitudes and other real
rights over immovable property. (334a)
ART. 416. The following things are deemed to be personal prop-
erty:
1. Those movables susceptible of appropriation which are not
included in the preceding article;
185
V O L . III
2. Real property which by any special provision of law is

considered as personality;
3. Forces of nature which are brought under control by sci-
ence; and
4. In general, all things which can be transported from place
to place without impairment of the real property to which they are
fixed.
ART. 417. The following are also considered as personal prop-
erty:
1. Obligations and actions which have for their object mova-
bles or demandable sums; and
2. Shares of stock of agricultural, commercial and industrial
entities, although they may have real estate. (336a)
Thus, an action for replevin will not lie to recover heavy ma-
chinery and equipment attached to a concrete foundation in a fixed
manner, in such a w a y that it could not be separated without break-
ing the material, or causing the deterioration of the objects by un-
bolting it and cutting some of the wooden supports, as the machin-
ery was installed for industrial use, and tended directly to meet the
needs of the said industry. For these reasons, they w e r e already
immovable property pursuant to paragraphs 3 and 5 of Article 415 of
6
the Civil Code of the Philippines.
e. N a t u r e of A c t i o n
The provisional remedy of replevin is in the nature of possessory

action and the applicant who seeks immediate possession of the
property involved need not be the holder of the legal title to the
property. It suffices, if he is, in the words of Section 2, Rule 60,
7
"entitled to the possession thereof."
However, although, a "replevin" action is primarily one for pos-

session of personalty, yet it is sufficiently flexible to authorize a
6
Machinery Engineering Supply v. C A , 96 Phil. 70.
7
Yang v. Valdez, 177 S C R A 141, August 31,1989; Lucio Tan v. Court of Appeals,
200 S C R A 450 (1991); Allied Leasing Corporation v. Court of Appeals, 197 S C R A 71
(1991); Filinvest Credit Corporation v. Court of Appeals, Sept. 27, 1995.
186
settlement of all equities between the parties, arising from or grow-

ing out of the main controversy. Thus, in an action for replevin
where the defendant is adjudged entitled to possession, he need not
go to another forum to procure relief for the return of the replevied
property or secure a judgment for the value of the property in case
the adjudged return thereof could not be had. Appropriately, the
8
trial court rendered an alternative judgment.
Possession of Chattel should be by Replevin
T h e purchaser in a chattel mortgage cannot take possession of

the property by force either directly or through the sheriff. A n d the
reason for this is "that the creditor's right of possession is condi-
tioned upon the fact of default, and the existence of this fact may
9
naturally be the subject of controversy. It may also be resorted to by
a person entitled to the possession of the property preliminary to the
10
extra-judicial foreclosure of a chattel m o r t g a g e .
Jurisdiction
A w r i t of replevin issued by the Metropolitan Trial Court of

Pasay City m a y be served and enforced anywhere in the Philippines.
Moreover, the jurisdiction of a court is determined by the amount of
the claim alleged in the complaint, not by the value of the chattel
seized in ancillary proceedings even if it exceeds the amount ordinar-
11
ily cognizable by the MTC.
f. Recto L a w N o t Applicable
U n d e r Article 1484 of the Civil Code in a contract of sale of
personal property the price of which is payable in installments, the
vendor may exercise any of the following remedies:
(1) Exact fulfillment of the obligation, should the vendee fail
to pay;
8
Chiao Liong Tan v. Court of Appeals, 228 S C R A 75.
9
Bachrach Motor Co. v. Summers, 42 Phil. 3, 6.
10
Filinvest Credit Corporation v. Court of Appeals, 248 S C R A 551 (1995).
"Fernandez v. The International Corporate Bank, 316 S C R A 326, October 7,
1999.
187
V O L . III
(2) Cancel the sale, should the vendee's failure to pay cover
two or more installments;
(3) Foreclose the chattel mortgage on the thing sold, if one
has been constituted to pay cover two or more installments. In this
case, he shall have no further action against the purchaser to re-
cover any unpaid balance of the price. A n y agreement to the con-
trary shall be void. (Recto Law)
While in a foreclosure of a chattel mortgage, the sheriff must
be in possession of the chattel, and the creditor may resort to the
remedy of replevin to have possession thereof, the provisions of A r t .
1484 of the Civil Code does not apply in Replevin (Rule 60) because
12
it (Replevin) is not a foreclosure of m o r t g a g e .
EXCEPTIONS:
Where, however, what it started out as a replevin culminated
13
in foreclosure or when the vehicle was repossessed because plain-
14
tiff opted to cancel the sale. A r t . 1484 must be applied.
S E C . 2. Affidavit and bond. T h e a p p l i c a n t m u s t s h o w

b y his o w n affidavit o r that o f s o m e o t h e r p e r s o n w h o p e r -
sonally k n o w s the facts:
( a ) T h a t the a p p l i c a n t i s the o w n e r o f the p r o p e r t y

claimed, p a r t i c u l a r l y d e s c r i b i n g it, or is entitled to the pos-
session thereof;
( b ) T h a t the p r o p e r t y i s w r o n g f u l l y d e t a i n e d b y the
a d v e r s e party, a l l e g i n g the c a u s e of detention t h e r e o f ac-
c o r d i n g to the best of his k n o w l e d g e , i n f o r m a t i o n , a n d belief;
(c) T h a t the p r o p e r t y h a s not b e e n d i s t r a i n e d o r t a k e n

for a tax assessment or a fine p u r s u a n t to l a w , or seized
u n d e r a w r i t of execution or p r e l i m i n a r y attachment, or
12
Universal Motors Corp. v. Velasco, 98 S C R A 545; Spouses dela Cruz v. Asian
and Industrial Finance Corp., Sept. 20, 1991; Vide Filinvest Credit Corporation v.
Court of Appeals, 248 S C R A 549, Sept. 27, 1995.
13
Filipinas Investment Finance Corp. v. Ridad, 30 S C R A 564.
14
Nonato v. I A C , 140 S C R A 255.
188
o t h e r w i s e p l a c e d u n d e r custodia legis, or if so seized, that it

i s e x e m p t f r o m s u c h s e i z u r e o r custody; a n d
(d) T h e a c t u a l m a r k e t v a l u e o f the property.
T h e a p p l i c a n t m u s t a l s o g i v e a b o n d , e x e c u t e d to the
a d v e r s e p a r t y i n d o u b l e the v a l u e o f the p r o p e r t y a s stated i n
the affidavit a f o r e m e n t i o n e d , f o r the r e t u r n o f the p r o p e r t y
t o the a d v e r s e p a r t y i f s u c h r e t u r n b e a d j u d g e d , a n d f o r the
p a y m e n t t o the a d v e r s e p a r t y o f s u c h s u m a s h e m a y r e c o v e r
f r o m the a p p l i c a n t i n the action. ( 2 a )
COMMENT:
9
T h e term "plaintiff was changed to applicant, subparagraph
( c ) included property under distraint or otherwise placed under cus-
todia legis among those that m a y not be the subject of replevin.
T h i s confirms the ruling in Ona v. Cuevas that property in

1
custodia legis cannot be the subject of replevin.
a. B a s i s of R e m e d y ; m e a n i n g of "to Detain"
A suit for replevin is founded solely on the claim that the de-
fendant wrongfully withholds the property sought to be recovered. It
lies to recover possession of personal chattels that are unlawfully
u 99
detained 7b detain is defined as to mean "to hold or keep in cus-
tody" and it has been held that there is tortuous taking whenever
there is an unlawful meddling with the property, or an exercise or
claim of dominion over it, without any pretense of authority or right;
this, without manual seizing of the property is sufficient. Under the
Rules of Court, it is indispensable in replevin proceeding that the
plaintiff must show by his own affidavit that he is entitled to the
possession of property; that the property is wrongfully detained by
1
O n a v. Cuevas, 83 S C R A 388.
189
V O L . III
the defendant, alleging the cause of the detention, that the same has
not been taken for tax assessment, or seized under execution, or
attachment, or if so seized, that is exempt from such seizure, and the
2
actual value of the property.
a.1 F a i l u r e to state all the requisites in affidavit
There is substantial compliance with the rule requiring that an

affidavit of merit support the complaint for replevin if the complaint
itself contains a statement of every fact required to be stated in the
3
affidavit of merit and the complaint is verified like an affidavit.
The affidavit or complaint must, however, allege that subject

properties were not taken by virtue of a tax assessment or seized
under execution or attachment or, if they were so seized, that they
4
are exempt from such seizure.
The affidavit of merit must also state the actual value of the
property subject of replevin and not just its probable value. Actual
value or (actual market v a l u e ) means "the price which an article
would command in the ordinary course of business, that is to say,
when offered by one willing to sell, but not under compulsion to sell,
and purchased by another who is willing to buy, but under no obliga-
5
tion to purchase." Statement of the actual value is required because
the actual value will be the basis of the replevin bond required to be
posted by the plaintiff. Failure to state the actual value is non-
6
compliance with Section 2, Rule 20 of the Revised Rules of Court.
The defense of lack of proper affidavit of merit is no longer

available where the defendant failed to raise it either in a motion to
7
dismiss or in the answer as required by Section 1, Rule 9.
2
P a a t v. Court of Appeals, 266 S C R A 167, January 19, 1997.
3
C i t i b a n k v. Court of Appeals, 304 S C R A 679, March 17,1999, citing Francisco,
Rules of Court of the Philippines, Vol. I V - A , p. 383 and Bayog v. Natinio, 258 S C R A
378,400.
4
C i t i b a n k v. Court of Appeals, 304 S C R A 679, March 17, 1999.
5
Supra.
6
Id.
7
Id. The omnibus motion rule is provided for in Section 8, Rule 15 subject to
Section 1, Rule 9 of the 1997 Rules of Civil Procedure.
190
b. T r u c k seized b y D E N R f o r Violation o f Forestry L a w s

N o t Subject to Replevin
A suit for replevin can not be sustained against officials of the

D E N R for a truck which was seized by them because it was trans-
porting forest products without the required permit of the D E N R in
manifest contravention of Section 68 of PD 705 (the Forestry Code)
which warrants the confiscation as w e l l as the disposition by the
Secretary of the D E N R or his duly authorized representatives of the
conveyances used in violating the provision of forestry laws. T h e
continued possession of the truck by the petitioners for administra-
tive forfeiture proceeding is legally permissible, hence, there can be
no wrongful detention. T h e suit for replevin is never intended as a
procedural tool to question the orders of confiscation and forfeiture
8
proceedings before the D E N R .
R e p l e v i n against D E N R for seized lumber is not likewise

available. T h e r e must be exhaustion of administrative remedies
before the D E N R . T h e complaint was dismissed for lack of cause of
9
action.
c. P r o p e r t y S e i z e d b y V i r t u e o f S e a r c h W a r r a n t not
Subject to Replevin
It has been held that the moment a Court of First Instance has
been informed through the filing of an appropriate pleading that a
search warrant has been issued by another Court of First Instance,
10
it cannot, even if the literal language of the Rules of Court yield a
contrary impression require a sheriff or any proper office of the
Court to take the property subject of the replevin action if thereto-
fore it came into custody of another public officer by virtue of a
search warrant. Only the Court of First Instance that issued such a
search warrant may order its release. A n y other view would be sub-
versive of a doctrine that has been steadfastly adhered to, the main
purpose of which is to assure stability and consistency in judicial
actuations and to avoid confusion that may otherwise ensue if courts
8
P a a t v. Court of Appeals, 266 S C R A 167, January 19, 1997.
9
D y v. Court of Appeals, G.R. N o . 121587, March 9, 1999.
"Section 3, Rule 60.
191
V O L . III
of coordinate jurisdiction are permitted to interfere with each oth-

11
er's lawful orders.
The remedy for questioning the validity of a search warrant
may be sought in the Court of First Instance that issued it, not in
the sala or another Judge, and as admitted in the dissenting opinion
12
of Justice Laurel, not through replevin.
c.1 Exception: W h e r e S e i z u r e Is I l l e g a l
Replevin may, however, be availed of if the seizure is illegal even
13
if the article is delivered to the custody of the Court or where there
is reason to believe that the seizure w i l l not anymore be followed by
the filing of the criminal action in court and there are conflicting
14
claims.
d. Meaning of B o n d
In Yang v. Valdez, Justice Feliciano pointed out that a bond

that is required to be given by l a w is commonly understood to refer
to an obligation or undertaking in w r i t i n g that is sufficiently se-
cured. It is not indispensably necessary, however, that the obligation
of the bond be secured or supported by cash or personal property or
real property or the obligation of a surety other than the person
u
giving the bond. Most generally understood, a bond" is an obliga-
tion reduced to writing binding the obligor to pay a sum of money to
the obligee under specified conditions. At common law, a bond was
merely a written obligation under seal. A bond is often, as a commer-
cial matter, secured by a mortgage on real property; the mortgagee
may be the obligee, although the mortgagee m a y also be a third
party surety whose personal credit is added to that of the principal
15
obligor under the bond.
e. Sufficiency of B o n d
T h e sufficiency of a bond is a matter that is addressed to the

sound discretion of the court which must approve that bond. In a
11
Vlasons Enterprises v. Court of Appeals, 155 S C R A 186 (1997).
12
Pagkalinawan v. Gomez, 21 S C R A 1275.
13
Bagalihog v. Fernandez, 198 S C R A 614 (1991).
14
C h u a v. Court of Appeals, 222 S C R A 85, M a y 17,1993.
16
Y a n g v. Valdez, 177 S C R A 141 (1989).
192
case, the r e p l e v i n bond g i v e n by the respondent w a s properly

secured by the sureties themselves w h o declared their solvency and
capacity to answer for the undertaking assumed, through an Affida-
v i t of Justification which reads as follows:
"We M I L A G R O S M O R A N T E and B A Y A N I L . C A L O N Z O ,
both of legal age, Filipinos, married and residents of Maltana,
Tampakan, South Cotabato, and General Santos City, respec-
tively, after having been duly sworn to in accordance with law
do hereby depose and say:
1. T h a t each of them is a resident house holder or free-

holder within the Philippines;
2. T h a t each of them is worth the amount specified in

the undertaking assumed by them in the above bond over and
above all debts, obligations and property exempt from execu-
tion.
IN W I T N E S S W H E R E O F , we have hereunto set our hands,

this 4th day of January, 1985, at General Santos City, Philip-
pines."
T h e Supreme Court held that the above sworn declaration of

solvency which w a s submitted to the judge together with the bond,
in effect secured the replevin bond. We note also that the sureties or
bondsmen under the bond included not only Milagros Morante who
was party-plaintiff below, but also a third person, Atty. Bayani L.
Calonzo who w a s not a party-litigant. Petitioner Yang never put in
issue the financial capability of these two ( 2 ) sureties. It follows that
the approval of the replevin bond by respondent judge, before whom
it was presented and who was in a better position than this Court to
appreciate the financial standing of the sureties, can scarcely be
16
questioned as a grave abuse of discretion.
f. R u l e d e e m e d w r i t t e n into b o n d
T h e failure of the replevin bond to state expressly that it was
"conditioned for the return of the property to the defendant, if the
1?
Y a n g v. Valdez, supra.
193
V O L . III
return thereof be adjudged." is not fatal to the validity of the replevin

bond. The replevin bond put by Milagros Morante and Bayani L.
Calonzo stated that it was given "under the condition that (they)
will pay all the costs, which maybe adjudged to the said defendants
and all damages which said defendants may sustain by reason of the
order of replevin, if the court shall finally adjudge that the plaintiffs
were not entitled thereto." x x x The condition of the bond given in
this case substantially complied with the requirement of Section 2,
Rule 60. Moreover, the provisions of Rule 60, Section 2 of the R e -
vised Rules of Court under which the replevin bond was given may
be regarded as having become part of the bond and as having been
imported thereunto. A l l the particular conditions prescribed in Sec-
tion 2, Rule 60, although not written in the bond in printer's ink,
will be read into the bond in determining the scope and extent of the
17
liability of the sureties or bondsmen under that bond.
g. A m o u n t of B o n d
The amount of the bond shall be based on the value declared by

petitioner in his affidavit.
h. Determination of Actual Value
For this reason, the affidavit of merit must also state the
actual value of the property subject of replevin and not just its
probable value. Actual value or (actual market v a l u e ) means "the
price which an article would command in the ordinary course of
business, that is to say, when offered by one w i l l i n g to sell, but not
under compulsion to sell, and purchased by another w h o is willing to
18
buy, but under no obligation to purchase." Statement of the actual
value is required because the actual value w i l l be the basis of the
replevin bond required to be posted by the plaintiff. Failure to state
the actual value is non-compliance with Section 2, Rule 60 of the
19
Revised Rules of Court.
S E C . 3. Order. U p o n the filing of s u c h affidavit a n d

a p p r o v a l o f the b o n d , the c o u r t shall issue a n o r d e r a n d the
17
Y a n g v. Valdez, supra.
18
"Supra.
194
c o r r e s p o n d i n g w r i t o f r e p l e v i n d e s c r i b i n g the p e r s o n a l p r o p -
erty a l l e g e d t o b e w r o n g f u l l y d e t a i n e d a n d r e q u i r i n g the sher-
iff f o r t h w i t h to t a k e s u c h p r o p e r t y into his custody. (3a)
COMMENT:
U n d e r the present Rule, mere filing of the bond is not suffi-

cient, the bond must have to first be approved by the court.
S E C . 4. Duty of the sheriff. U p o n r e c e i v i n g such o r d e r ,

the sheriff m u s t s e r v e a c o p y t h e r e o f on the a d v e r s e party,
t o g e t h e r w i t h a c o p y o f the a p p l i c a t i o n , affidavit a n d b o n d ,
a n d m u s t f o r t h w i t h t a k e the p r o p e r t y , i f i t b e i n the posses-
sion o f the a d v e r s e party, o r his a g e n t , a n d r e t a i n i t i n his
custody. I f the p r o p e r t y o r a n y p a r t t h e r e o f b e c o n c e a l e d i n a
b u i l d i n g o r e n c l o s u r e , the sheriff m u s t d e m a n d its delivery,
a n d i f i t b e not d e l i v e r e d , h e m u s t c a u s e the b u i l d i n g o r
e n c l o s u r e t o b e b r o k e n o p e n a n d t a k e the p r o p e r t y into his
possession. A f t e r the sheriff h a s t a k e n possession o f the p r o p -
erty as h e r e i n p r o v i d e d , he m u s t k e e p it in a s e c u r e p l a c e
a n d shall b e r e s p o n s i b l e f o r its d e l i v e r y t o the p a r t y entitled
thereto u p o n r e c e i v i n g his fees a n d n e c e s s a r y expenses for
t a k i n g a n d k e e p i n g the s a m e . (4a)
COMMENT:
Significantly, unlike a preliminary attachment and prelimi-
nary injunction, the rule on prior or contemporaneous jurisdiction is
195
V O L . III
not provided for in replevin. The rule, however, requires that upon
receiving such order, the sheriff must serve a copy thereof on the
adverse party, together with a copy of the application, affidavit and
bond, and must forthwith take the property, if it be in the possession
of the adverse party, or his agent, and retain it in his custody.
Duty of Sheriff
1. A sheriff's prerogative does not, however, give him the
liberty to determine who among the parties is entitled to the posses-
1
sion of the attached property, much less does he have any discretion
to decide which agency has primary jurisdiction and authority over
the matter at hand.
2. When a writ is placed in the hands of a sheriff, it is his

duty, in the absence of any instructions to the contrary, to proceed
with reasonable celerity and promptness to execute it according to
2
its mandate. However, the prompt implementation of a warrant of
seizure is called for only in instances where there is no question
regarding the right of the plaintiff to the property. W h e r e the plain-
tiff has shown by his own affidavit that he is entitled to the posses-
sion of the property; that the property is wrongfully detained by the
defendant; that the same has not been taken for tax assessment or
seized under execution or attachment, or if so seized, that is exempt
3
from such seizure, then the executing officer has no other recourse
but to execute the warrant or w r i t expeditiously.
3. W h e r e the deputy sheriff has been informed that the prop-

erty had been impounded due to violation of forestry laws and an
order for its forfeiture had already been issued by the D E N R . Moreo-
ver, he was advised that the proper remedy for S M C , owner of the
vehicle, was to appeal the order of forfeiture to the Secretary of the
D E N R . T h e prudent recourse then for respondent was to desist from
executing the warrant and convey the information to his judge and
to the plaintiff. Instead, Deputy Sheriff M a g u m u n carried out the
implementation of the warrant of seizure with undue haste as evi-
denced by the mere-6-day lapse from the time he first served the
l
N B I v. Tuliao, 270 S C R A 351, 24 M a r c h 1997.
2
See Note 7; Balantes v. Buena, 242 S C R A , 14 March 1995.
3
P a a t v. C A , 266 S C R A 167, 10 January 1997.
196
warrant of seizure on the D E N R officials to the time of his precipi-

tate seizure of the van. A warrant could be returned within a period
of not less than ten (10) days nor more than sixty (60) days after its
4
receipt by the executing officer. Within this time frame, Deputy
Sheriff Magumun should have conferred with his judge and thereaf-
ter execute the warrant judiciously and with more certainty.
True, sheriffs must comply with their mandated ministerial

duty to implement writs promptly and expeditiously, but equally
true is the principle that sheriffs by the nature of their functions
must at all times conduct themselves with propriety and decorum
and act above suspicion. T h e r e must be no room for anyone to conjec-
ture that sheriffs and deputy sheriffs as officers of the court have
conspired with any of the parties to a case to obtain a favorable
judgment or immediate execution. T h e sheriff is the front line repre-
sentative of the judiciary and by his act he may build or destroy the
institution.
As observed by the O C A , the w r i t of replevin has been repeat-

edly used by unscrupulous plaintiffs to retrieve their chattel earlier
6
taken for violation of the Tariff and Customs Code, tax assessment,
attachment or execution. Officers of the court, from the presiding
judge to the sheriff, are implored to be vigilant in their execution of
the l a w otherwise, as in this case, valid seizure and forfeiture pro-
ceedings could easily be undermined by the simple devise of a writ of
replevin. Hence, sheriffs and deputy sheriffs, as agents of the law,
are called upon to discharge their duties with due care and utmost
diligence because in serving the court's writs and processes and
implementing the orders of the court, they cannot afford to err with-
out affecting the integrity of their office and the efficient adminis-
6
tration of justice.
4
Sec. 11, Rule 39,1964 Rules of Court. This is no longer true. The 1997 Rules of
Civil Procedure amended Sec. 11. The lifetime of the writ is without limit for as long
as the judgment have not been satisfied. (Sec. 14, Rule 39).
6
Pacis v. Hon. Averia, 18 S C R A 907, 29 November 1966.
6
Borrnasal, Jr. v. Montes, 280 S C R A 181, 6 October 1997; Mamanteo, et al. v.
Magumun, A . M . N o . P-98-1264 formerly O C A I P I N o . 97-263-P, July 28, 1999, 311
S C R A 269.
197
V O L . III
S E C . 5. Return of property. If the a d v e r s e p a r t y o b -

jects to the sufficiency of the applicant's b o n d , or of the surety
or sureties thereon, he cannot immediately r e q u i r e the re-
turn of the property, b u t if he does not so object, he may, at
any time b e f o r e the d e l i v e r y of the p r o p e r t y to the a p p l i c a n t ,
r e q u i r e the r e t u r n thereof, b y f i l i n g w i t h the c o u r t w h e r e the
action is p e n d i n g a b o n d e x e c u t e d to the a p p l i c a n t , in d o u b l e
the v a l u e of the p r o p e r t y as stated in the applicant's affida-
vit for the d e l i v e r y thereof to the a p p l i c a n t , if such d e l i v e r y
b e a d j u d g e d , a n d for the p a y m e n t o f s u c h s u m t o h i m a s m a y
b e r e c o v e r e d against the a d v e r s e party, a n d b y s e r v i n g a
copy of such b o n d on the a p p l i c a n t . ( 5 a )
COMMENT:
The phrase "or his attorney" was deleted as a surplusage.
3. N o t e s a n d cases
If the sufficiency of the plaintiff's bond is objected to by the

defendant, the latter cannot demand the return of the property upon
counterbond.
S E C . 6. Disposition of property by sheriff. If w i t h i n five

(5) d a y s after the t a k i n g of the p r o p e r t y by the sheriff, the
a d v e r s e p a r t y does not object to the sufficiency of the b o n d ,
or of the surety or sureties thereon; or if the a d v e r s e p a r t y so
objects a n d the c o u r t affirms its a p p r o v a l of the applicant's
b o n d or a p p r o v e s a n e w b o n d , or if the a d v e r s e p a r t y
r e q u i r e s the r e t u r n o f the p r o p e r t y b u t his b o n d i s o b j e c t e d
t o a n d f o u n d insufficient a n d h e d o e s n o t f o r t h w i t h f i l e
a n a p p r o v e d b o n d , the p r o p e r t y shall b e d e l i v e r e d t o the
applicant. If for a n y r e a s o n the p r o p e r t y is not d e l i v e r e d to
the applicant, the sheriff m u s t r e t u r n it to the a d v e r s e party.
(6a)
198
COMMENT:
No substantial change. "Defendant" was changed to "adverse

party."
a. R e m e d y for Return of Seized Property
b. Period Mandatory
According to these t w o sections, if a defendant in a replevin

case wants to have the property returned to him, he must within
five days from the date the Sheriff took possession of the property:
( 1 ) put up a bond in double the value of the chattel; and ( 2 ) furnish
the plaintiff with a copy of the undertaking. Both requirements are
mandatory. T h e furnishing of a copy of the counter-bond has to be
accomplished within the prescribed period if the plaintiff is to have
an opportunity to contest the redelivery of the property sought by
the defendant. A n d a trial judge acts in excess of his jurisdiction
when he approves a bond for the redelivery of chattels to the defend-
1
ant presented after the statutory period has expired.
c. A l t e r n a t i v e R e m e d i e s of D e f e n d a n t
Whether the property remained with the Sheriff or was given

to another officer designated by the Court is of no significance, and
should not be taken as disabling the defendant from moving for the
return of the property to him by either of the modes set out in
Section 5 of Rule 60: ( 1 ) by objecting to the sufficiency of the bond, or
( 2 ) if he does not object, by filing a counterbond "in double the value
of the property as stated in the plaintiff's affidavit."
Thus, if a defendant in a replevin action wishes to have the
property taken by the sheriff restored to him, he should within five
days from such taking: ( 1 ) post a counter-bond in double the value of
1
Case and Nantz v. Jugo, et al., 77 Phil. 517; See also Bachrach Motor Co. v.
Albert, 60 Phil. 308; Yang v. Valdez, supra.
199
V O L . III
2
said property, and (2) serve plaintiff with a copy thereof, both re-
quirements as well as compliance therewith within the five-day
3
period mentioned being mandatory.
This course of action is available to the defendants for as long
4
he does not object to the sufficiency of plaintiffs bond.
d. M o t i o n t o dissolve o r d i s c h a r g e w r i t not a l l o w e d
Thus, if a defendant in a replevin action wishes to have the

property taken by the sheriff restored to him, he should within five
days from such taking, ( 1 ) post a counter-bond in double the value of
said property and ( 2 ) serve plaintiff with a copy thereof, both re-
quirements as well as compliance therewith within the five-day
period mentioned being mandatory.
Alternatively, "the defendant may object to the sufficiency of

the plaintiff's bond, or the surety or sureties thereon"; but if he does
so, "he cannot require the return of the property" by posting a
counterbond pursuant to Sections 5 and 6.
In other words, the l a w does not allow the defendant to file a

motion to dissolve or discharge the w r i t of seizure (or d e l i v e r y ) on
the ground of insufficiency of the complaint or of the grounds relied
upon therefor, as in proceedings on preliminary attachment or in-
5
junction, and thereby put at issue the matter of the title or right of
possession over the specific chattel being replevied, the policy appar-
ently being that said matter should be ventilated and determined
6
only at the trial on the merits.
W h e r e the respondent did not opt to cause a redelivery of the

properties to him by filing a counter-bond precisely because he ob-
jected to the sufficiency of the bond posted by the plaintiff, he need
not file a counter-bond or redelivery bond. W h e n such objection was
not given due course, and instead of requiring the plaintiff to post a
2
Like the plaintiffs replevin bond: Sec. 2 (last par., Rule 60).
3
C h a n v. Villanueva, etc., et al., 91 Phil. 913, April 30,1952 ( U n r e p . ) , Case and
Nantz v. Jugo, et al., 77 Phil. 517; Bachrach Motor Co., Inc. v. Albert, 60 Phil. 308,
cited in MORAN, COMMENTS ON THE RULES, 1980 Ed., Vol. 3.
'Citibank v. Court of Appeals, 304 S C R A 679, March 17, 1999.
6
See Sec. 13, Rule 57 and Sec. 6, Rule 58, Rules of Court, respectively.
6
L a Tondea Distillers, Inc. v. Court of Appeals, 209 S C R A 553.
200
new bond, the court approved the bond claimed by respondent to be

insufficient, and ordered the seizure of the properties, recourse to
7
certiorari under Rule 65 is proper.
e. Five-day p e r i o d from actual seizure
T h e five-day period spoken of by the Rule begins from the

taking of the property by the Sheriff and not from the service of
summons to the defendant for even if summons was already duly
served to the defendant but the property has not yet been taken by
the sheriff the provision above-cited does not apply. Hence, the pre-
scriptive period for filing a counter-replevin bond must be counted
8
from the actual taking of the property by the Sheriff.
f. Substantial compliance with second requirement
Showing Plaintiff Attorney Counterbond in Sheriffs Office.
Substantial compliance with the second requirement is suffi-

cient. Since the sole purpose of furnishing a copy of counterbond is to
enable the plaintiff to see if the bond is in the prescribed form and
for the right amount and to resist the return of the property to the
defendant, if it is not, that opportunity was afforded the petitioners
to the fullest extent when their attorney was shown in the Sheriffs
office the defendant's counterbond. After the plaintiff's attorney read
or saw the counterbond, service of a copy thereof on him became a
purposeless, unnecessary formality. There is no reason why the
maxim, "equity regards substance rather than form" should not hold
9
good here.
Thus, the court held that the defendant took adequate steps to
comply with the above-quoted provisions of the Rules of Court. He or
his attorney was not expected personally to serve a copy of the
counterbond on the plaintiffs or their attorney; if, in other words,
service might be effected through others, no more suitable person
could have been selected than the sheriff, the officer of the court
whose chief function it is, among others, to serve pleadings and
notices and who, above all had the property in litigation in custody.

T a n g v. Valdez, 177 S C R A 141, supra.
9
Case and Nantz v. Jugo, supra.
201
V O L . III
That the sheriff did not deliver the copy of the counterbond intended
for the plaintiffs or their attorney through an unavoidable circum-
stance, or even through negligence, should not adversely affect the
defendant under the circumstance of this case. If it be said that the
fault of an agent is imputable to his principal, it should be remem-
bered that this principle is applicable to cases where actual damage
has been suffered, in which event the principal would have to bear
the loss and other consequences; but it should not apply to cases
where the fault consists of purely technical, harmless non-observ-
ance of a rule of practice or procedure which has not injured or
10
misled any one or deprived the court of its jurisdiction.
g. Sending Copy by Registered Mail on Fifth Day

11
Justice Narvasa in Tillson v. Court of Appeals, stressed:
There is no provision in Rule 60 imposing the requirement that

service of the counterbond on the plaintiff must be made within five
(5) days after the taking of the property by the officer. T h e coun-
ter-bond was posted within the period prescribed by Rule 60, i.e.,
"within the delivery of the property to the plaintiff." A copy of the
counter-bond was sent to the plaintiff on the fifth day" after the
taking of the property by the officer." T h e copy having been sent by
registered mail, it was received after said fifth day. Cooney does not
deny that the copy of the bond was indeed sent to him on the fifth
day, and that he actually received it afterwards; and it is a fact that
on the day which the Trial Court re-scheduled the hearing on the
motion for approval of the bond and for return of the property, M a y
5, 1989, Cooney had already received the copy of the bond. W h a t he
postulates is that his receipt of the counter-bond after the fifth day,
was a fatal defect proscribing return of the vessel to Tillson, a proposi-
tion which the Court of Appeals sustained. T h e proposition is unac-
ceptable to the Court. It accords unwarranted importance to techni-
cality. If technicality were indeed to be the order of the day, Tillson
could also claim timeliness of Cooney's receipt of a copy of the bond
since, as the record shows, Cooney did receive the copy within the
time stated by Section 5 of Rule 60, i.e., "before the delivery of the
'Case and Nantz v. Jugo, supra; Yang v. Valdez, supra.

197 S C R A 597.
202
property to the plaintiff." He could also claim that the requirement

of service of the counter-bond on the plaintiff cannot be all that
important since there is no provision in Rule 60 imposing that re-
quirement, which appears to have been derived simply from the
general prerequisite laid down for pleadings, motions, notices, or-
ders and other papers filed with the court. In Case and Nantz v.
Jugo, et al., 1946 case, where a copy of the counter-bond was never
given to plaintiff although it had been seen and read by the latter's
attorney, this Court held that there had been substantial compli-
ance with the requirement of service of the defendant's counter-
bond. "Since the sole purpose of furnishing a copy of the counter-
bond," said the Court, "is to enable the plaintiff to see if the bond is
in the prescribed term and for the right amount and to the return
of the property to the defendant if it is not, that opportunity was
afforded the petitioners to the fullest extent when their attorney
was shown in the sheriff's office the defendant's counter-bond. After
the plaintiff's attorney read or was the counter-bond, service of a
copy thereof on him because purposeless, unnecessary formality.
There is no reason w h y the maxim, 'equity regards substance rather
9
than form, should not hold good here." Considering the established
facts, and the additional circumstance that the record shows no
prejudice whatever to have been caused to plaintiff Cooney by the
omission of service of the counter-bond on him, there is no reason
w h y the same disposition should not be made here as in Case, and
substance rather than form be made to prevail.
h. T h e bond answers for deterioration and the prevailing

party may refuse to accept the property and instead sue on the
12
redelivery bond.
13
Replevin does not authorize the right to sell.
14
i. In Jamandre v. Luzon Surety, the bond filed for delivery
to plaintiff of the property seized from and returned to defendant,
was held as co-terminous with the case where it is filed. (See Sec. 5)
12
Bachrach Motor Co. v. Bond and Union Guarantee Co., 44 Phil. 378, 382.
13
Panlilio v. Victorio, 35 Phil. 706.
14
124 S C R A 761.
203
V O L . III
S E C . 7. Proceedings where property claimed by third per-

son. _ if the p r o p e r t y taken is c l a i m e d by a n y p e r s o n other
than the p a r t y against w h o m the w r i t o f r e p l e v i n h a d b e e n
issued or his agent, a n d such p e r s o n m a k e s an affidavit of
his title thereto, or r i g h t to the possession thereof, stating
the g r o u n d s therefor, a n d serves such affidavit u p o n the sher-
iff w h i l e the latter has possession of the p r o p e r t y a n d a c o p y
thereof u p o n the applicant, the sheriff shall not be b o u n d to
keep the p r o p e r t y u n d e r r e p l e v i n or d e l i v e r it to the a p p l i -
cant unless the a p p l i c a n t or his a g e n t , on d e m a n d of s a i d
sheriff, shall file a b o n d a p p r o v e d by the c o u r t to i n d e m n i f y
the third-party c l a i m a n t in a s u m not less t h a n the v a l u e of
the p r o p e r t y u n d e r r e p l e v i n as p r o v i d e d in Section 2 hereof.
In case of d i s a g r e e m e n t as to s u c h v a l u e , the c o u r t shall
determine the same. N o c l a i m f o r d a m a g e s f o r the t a k i n g o r
k e e p i n g o f the p r o p e r t y m a y b e e n f o r c e d a g a i n s t the b o n d
unless the action t h e r e f o r is filed w i t h i n o n e h u n d r e d t w e n t y
(120) d a y s from the d a t e of the filing of the b o n d .
T h e sheriff shall not b e l i a b l e f o r d a m a g e s , f o r the tak-

ing or k e e p i n g of such property, to a n y such t h i r d - p a r t y claim-
ant i f such b o n d shall b e f i l e d . N o t h i n g h e r e i n c o n t a i n e d
shall p r e v e n t such c l a i m a n t o r a n y t h i r d p e r s o n f r o m v i n d i -
cating his claim to the p r o p e r t y or p r e v e n t the a p p l i c a n t
from claiming damages against a third-party claimant w h o
filed a frivolous or p l a i n l y s p u r i o u s claim, in the s a m e or
s e p a r a t e action.
W h e n the w r i t o f r e p l e v i n i s i s s u e d i n f a v o r o f the R e -
p u b l i c of the P h i l i p p i n e s , or a n y officer d u l y r e p r e s e n t i n g it,
the f i l i n g o f such b o n d shall not b e r e q u i r e d , a n d i n case the
sheriff is s u e d f o r d a m a g e s as a r e s u l t of the r e p l e v i n , he
shall b e r e p r e s e n t e d b y the Solicitor G e n e r a l , a n d i f h e l d
liable therefor, the a c t u a l d a m a g e s a d j u d g e d b y the c o u r t
shall b e p a i d b y the N a t i o n a l T r e a s u r e r o u t o f the f u n d s t o b e
a p p r o p r i a t e d f o r the p u r p o s e . ( 7 a )
COMMENT:
Taken from Section 14 of Rule 57 and replaced Section 7 of Rule
204
60 to provide for uniformity of procedure when there are third-party

claimants.
2. C h a n g e s in Rule
T h e term "plaintiffs" changed to "applicant." T h e amount of

the indemnity bond was changed from an amount of not "less" to not
"greater" than the value of the property.
T h e second paragraph that: "The sheriff shall not be liable for

damages, for the taking or keeping of such property, to any such
third-party claimant if such bond shall be filed. Nothing herein con-
tained shall prevent such claimant or any third person from vindi-
cating his claim to the property or prevent the applicant from claim-
ing damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim" was also
Section 14, Rule 57. T h e action contemplated herein is not limited to
the claimant but includes "a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim."
3. N o t e s a n d cases
a. N o t Applicable to P a r t y to Action
A party to the action has no business filing a third-party claim

over property involved in that action and which he himself claims
1
belong to him. As pointed out in Tillson v. Court of Appeals.
It should be apparent that this provision, and others like it,

providing for an expeditious mode of recovering property alleged to
have been wrongfully or erroneously taken by a sheriff pursuant to a
writ of execution or other process, has reference to a stranger to the
action, and not to a party therein. T h e remedy thereby granted is
meant to accord said stranger, whose property is taken by the sheriff
to secure or satisfy a judgment against a party to said action, a
speedy, simple, and expeditious method of getting it back. A l l he has
to do is draw up "an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and
serve the same upon the officer making the levy, and a copy thereof
upon the judgment creditor." If the sheriff is persuaded of the valid-
ity of the third party's claim, then he gives back the property. The
ûpra.
205
V O L . III
purpose of the provision is achieved. On the other hand, if the sheriff

is not convinced and opts to retain the property (requiring the judg-
ment creditor to post an indemnity bond to answer for any liability
he may incur by reason of such retention), the third-party may then
vindicate "his claim to the property by any proper action." A party to
the action, however, has no business filing a third party claim over
property involved in that action and which he himself claims to
belong to him. He is evidently not the stranger, or third party, con-
templated by aforementioned Section 17, Rule 57. He has the stand-
ing, and the opportunity at any time, to ask the Court for relief
against any alleged errors, excesses or irregularities of the sheriff. It
is incongruous to seek relief from a sheriff which the Court itself
2
could as easily and expeditiously grant.
The remedy is identical to that granted to strangers in a pro-

3
ceeding on preliminary attachment or execution of judgments.
b. Intervention A l l o w e d
In lieu of, or in addition to the filing of a terceria, the third

party may, as Section 7 points out, vindicate "his claim to the prop-
erty by any proper action." This effort at vindication may take the
form of a separate action for recovery of the property, or intervention
4
in the replevin action itself.
Thus, as pointed out in one case it was imperative for the trial
Judge, before ultimately resolving the motion for leave to intervene
as party defendant of the person identifying himself as "Tee Chin
Ho," (alleged owner of the seized property) to determine the precise
status of said "Tee Chin Ho"; whether he was indeed a stranger to
the action, as he claims, and could therefore avail of the remedy of
intervention as a party defendant, or he was in truth a proper party
defendant, who had been mistakenly and inadvertently referred to
as "Te Tien H o , " and who therefore only had the alternative rem-
edies aforementioned of either ( a ) objecting to the replevin bond or
the surety or sureties thereof or ( b ) posting a counter-bond to compel
5
return of the property.
2
Tillson v. Court of Appeals, supra.
3
See Sec. 14, Rule 57 and Sec. 17, Rule 39, respectively.
4
Tillson v. C A , supra; See Ong v. Tating, 149 S C R A 269.
5
L a Tondea Distilleria, Inc. v. Court of Appeals, 209 S C R A 553 (1992).
206
Rule 60 REPLEVIN Sees. 8-10
S E C . 8. Return of papers. T h e sheriff must file the

o r d e r , w i t h his p r o c e e d i n g s i n d o r s e d thereon, w i t h the court
w i t h i n ten (10) d a y s after t a k i n g the p r o p e r t y m e n t i o n e d
therein. ( 8 a )
COMMENT:
S E C . 8. Return of papers. The officer must file the order, with

his proceedings indorsed thereon, with the clerk of the court within
twenty twenty (20) days after taking the property mentioned therein.
T h e return should now be made within ten (10), formerly twenty

(20), days after taking the property.
S E C . 9. Judgment. A f t e r trial of the issues, the court

shall d e t e r m i n e w h o h a s the r i g h t o f possession t o a n d the
v a l u e o f the p r o p e r t y a n d shall r e n d e r j u d g m e n t i n the alter-
n a t i v e f o r the d e l i v e r y t h e r e o f to the p a r t y entitled to the
s a m e , o r f o r its v a l u e i n case d e l i v e r y c a n n o t b e m a d e , a n d
also f o r s u c h d a m a g e s a s either p a r t y m a y p r o v e , w i t h costs.
(9a)
COMMENT:
N O S U B S T A N T I A L C H A N G E . The term "determine" instead
of "find" was used.
S E C . 10. Judgment to include recovery against sureties.

T h e amount, if any, to be a w a r d e d to a n y p a r t y u p o n any
b o n d filed in a c c o r d a n c e w i t h the provisions of this R u l e ,
207
V O L . III
shall b e claimed, ascertained, a n d g r a n t e d u n d e r the s a m e

p r o c e d u r e as p r e s c r i b e d in Section 20 of R u l e 57. (10a)
COMMENT:
S E C . 10. Judgment to include recovery against sureties. The

amount, if any, to be awarded to either party upon any bond filed by
the other in accordance with the provisions of this rule, shall be
claimed, ascertained, and granted under the same procedure as pre-
scribed in Section 20 of Rule 57.
The Rule applies to any bond filed in accordance with this rule
and is not limited to the bond filed by either party.
a. Requisites f o r R e c o v e r y o n r e p l e v i n b o n d
To allow recovery against the replevin bond, the following req-

uisites must be present:
1. Application showing right to damage.
2. Notice given to plaintiff and his surety.
3. There must be a hearing in case recovery is opposed.
4. A w a r d for damages must be included in judgment of the

1
court.
( a ) It was pointed out in Maningo v. Court of Appeals that an

action for damages against the person obtaining the w r i t of replevin
and the sheriff who enforced the w r i t of replevin, assuming that the
seizure of the property was unlawful, should be litigated in the
replevin suit and not by independent action. Thus, in Erlanger and
2
Galinger, Inc., et al. v. Villamor. T h e court held, that any claim for
1
People's Surety and Insurance v. Aragon, 7 S C R A 245; Plaridel Surety and
Insurance v. De los Angeles, 24 S C R A 487.
2
98 Phil. 1003. (Unrep.)
208
damages due to the seizing of property in replevin, the action being

still pending and undetermined, should be litigated in the replevin
suit and not by independent action. T h e doctrine is undisputed that
no court has the power to interfere by injunction with the judgment
or orders of another court of concurrent or coordinate jurisdiction
3
having power to grant the relief sought by injunction. By failing to
file a motion for the determination of the damages on time and while
the judgment is still under the control of the court, the claimant
4
loses his right to damages.
( b ) T h e application must be made before judgment is execu-

tory; if there is an appeal, the application may be made in the appel-
late court before the judgment of appellate the court becomes final
5
and executory.
( c ) T h e surety must be heard he must not be condemned to

pay without due process.
(d) PURPOSE:
To prove the grounds and extent of its liability.
(e) EXCEPTION:
W h e r e by the terms of the contract, the surety has promised to

6
abide by the judgment against the principal.
(f) The decision must award damages
W h e r e the decision merely ordered the return of the property

subject to replevin, and the decision becomes final and executory,
the subsequent order directing payment for damages due to deterio-
ration of property is considered a modification of the original judg-
7
ment and therefore null and void.
( g ) Redelivery may be refused where the property is not in
the same condition as taken and the party may go after the redeliv-
ery bond.
3
Investors' Finance Corp. v. Romeo Ebarle, Hon. Hose L. Castigador, 163 S C R A
60, June 29, 1988.
4
Maningo v. I A C , 183 S C R A 691, March 26, 1990.
6
Luneta Motors v. Menendez, 7 S C R A 956; People's Surety v. Aragon, supra.
6
Aguasin v. Velasquez, 88 Phil. 357.
7
A b l a z a v. Sycip, 110 Phil. 4 (1960).
209
V O L . III
8
(h) As to nature and extent of damages.
That Filinvest is liable for damages not because it commenced
an action for replevin to recover possession of the truck prior to its
foreclosure, but because of the manner (manner it carried out the
seizure of the vehicle. Sections 3 and 4, Rule 60 of the Rules of Court
are very clear and direct as to the procedure for the seizure of prop-
erty under a writ of replevin. In the instant case, it was not the
sheriff or any other proper officer of the trial court who implemented
the writ of replevin. Because it was aware that no other person can
implement the writ, Filinvest asked the trial court to appoint a
special sheriff. Yet, it used its own employees who misrepresented
themselves as deputy sheriffs to seize the truck without having been
9
authorized by the court to do so.
(i) There must be judgment for return of property
In an action for delivery of personal property the plaintiff filed

the corresponding replevin bond. At the trial plaintiff failed to ap-
pear and defendant proceeded to substantiate his counterclaim and
obtained judgment for the amount therein prayed for. Plaintiff did
not appeal from said judgment; execution was issued in due time;
and as the plaintiff turned out to be insolvent, a w r i t of execution
was issued against the surety for the amount of the judgment. Held:
The levy of execution on the bond was wrong. Since a replevin bond
is simply to indemnify the defendant against any loss that he may
suffer from being compelled to surrender the possession of the prop-
erty pending the trial, defendant cannot recover on the bond as for a
reconversion when he has failed to have judgment entered for the
return of the property. N o r is the surety liable for payment of the
judgment or damages rendered against the plaintiff on a counter-
claim, or punitive damages for fraudulent or wrongful acts commit-
ted by the plaintiff and is connected with the defendant's depriva-
tion of possession by the plaintiff. Instead, even where the judgment
was that the defendant was entitled to the property, but no order
was made requiring the plaintiff to return it or assessing damages
in default of a return, the sureties would not be liable for the value of
*See Filinvest Credit Corporation v. Court of Appeals, 248 S C R A 529, Sept. 27,
1995.
9
Filinvest Credit Corporation v. Court of Appeals, 248 S C R A 529.
210
the property. Until judgment is entered that the property should be

10
restored, there could be no liability on the part of the sureties.
It was held in a later case that: "A disposition by the Court that
d e f e n d a n t is entitled to the possession of the vehicle in question' is
in effect a declaration that no other party is entitled to possession
and carries w i t h it the obligation to deliver the vehicle or in the
11
alternative to pay the value of the car."
10
Aguasin v. Velasquez, 88 Phil. Reports 357.
"Budget Investment and Financing, Inc. v. Mangoma, 153 S C R A 630.
211
RULE 61
SUPPORT 'PENDENTE LITE'
S E C T I O N 1. Application. At the c o m m e n c e m e n t of the

p r o p e r action o r p r o c e e d i n g , o r a t a n y time p r i o r t o the j u d g -
ment or final o r d e r , a v e r i f i e d a p p l i c a t i o n f o r s u p p o r t pen-
dente lite m a y be filed by a n y p a r t y stating the g r o u n d s f o r
the claim a n d the f i n a n c i a l conditions o f b o t h p a r t i e s , a n d
a c c o m p a n i e d b y affidavits, depositions o r o t h e r authentic
documents i n s u p p o r t thereof, ( l a )
COMMENT:
a. Support pendente lite is an amount adjudicated by the

trial court during the pendency of an action for support upon appli-
cation by the plaintiff at the commencement of the proper action or
at anytime afterwards. It is the remedy recognized by the Revised
Rules of Court and classified as a provisional remedy rendered by
1
the court as equity and justice may require.
b. "The proper action referred to in the rule is an action for

support. There must be a statement of grounds of right to support to
2
avail of the remedy of support Pendente Lite. Spousal support or
child support may likewise be granted in cases for declaration of
absolute nullity of void marriage or for annulment of voidable mar-
l
117 S C R A 929, Fundamentals of Support Pendente Lite.
2
Coquia, et al. v. Baltazar, 85 Phil. 265.
212
Rule 61 SUPPORT ' P E N D E N T E LITE' Sec. 2
riage or legal separation Rule on Provisional Orders (Sees. 2 and 3)

and, in criminal cases. (Sec. 6, infra).
c. T h e amount of support pendente lite is not final in charac-

ter in the sense that it can be the subject of modification, depending
on the changing conditions affecting the ability of the obligor to pay
3
the amount fixed for support.
d. It lies within the discretion of the trial court to direct the

4
father to g i v e support pending the appeal.
But if appeal is already perfected the trial court loses jurisdic-

5
tion to issue execution of judgment for support.
e. An appellate court m a y grant alimony pendente lite even

6
if the trial court refused to grant the same.
S E C . 2. Comment. A c o p y of the a p p l i c a t i o n a n d all

s u p p o r t i n g d o c u m e n t s shall b e s e r v e d u p o n the a d v e r s e party,
w h o shall h a v e f i v e (5) d a y s t o c o m m e n t t h e r e o n unless a
different p e r i o d i s f i x e d b y the c o u r t u p o n his motion. T h e
c o m m e n t s h a l l b e v e r i f i e d a n d shall b e a c c o m p a n i e d b y affi-
davits, depositions o r o t h e r a u t h e n t i c d o c u m e n t s i n s u p p o r t
thereof. (2a, 3a)
COMMENT:
Taken from Sections 2 and 3 of the former Rule which reads:
SEC. 2. Notice. Notice of the application shall be served upon

the adverse party who shall have three (3) days to answer, unless a
different period of time is fixed by the court.
SEC. 3. Answer. - The answer shall be in writing and accom-
panied by affidavits, depositions or other authentic documents sup-
porting the same.
3
S a n Juan v. Valenzuela, 117 S C R A 926.
4
Ramos v. C A , 45 S C R A 604.
5
Vasco v. C A , 81 S C R A 764.
6
Ramos v. C A , supra.
213
V O L . III
In lieu of an answer, the defendant is given five ( 5 ) days to
comment thereon unless a different period is fixed by the court upon
his motion. The comment shall be verified and shall be accompanied
by affidavits, depositions or other authentic documents in support
thereof.
S E C . 3. Hearing. A f t e r the c o m m e n t is filed, or after

the e x p i r a t i o n of the p e r i o d f o r its filing, the a p p l i c a t i o n
shall be set for h e a r i n g not m o r e t h a n t h r e e (3) d a y s thereaf-
ter. T h e facts i n issue shall b e p r o v e d i n the same m a n n e r as
i s p r o v i d e d for e v i d e n c e o n motions. ( 4 a )
COMMENT:
Under the present Rule the application shall be set for hearing
not more than three ( 3 ) days after the filing of the comment or
expiration of the period for filing. T h e facts in issue shall be proved
in the same manner as is provided for evidence on motions.
a. Defendant A l l o w e d To P r o v e Defense
The defendant must be granted an opportunity to prove his

1
valid defense such as adultery.
After the answer is received by the Court or after the expira-

tion of the time for filing an answer (Sec. 4, Rule 61, RRC), a day will
be set for the hearing of the application, whereby the defendant is
2
afforded the opportunity to prove his defense. T h e facts in issue
shall be proved in the same manner as is provided in connection
^ a m o s v. Court of Appeals, 45 S C R A 604.

2
Sanchez v. Zulueta, et al., 68 Phil. 110; Mangoma v. Macadaeg, 90 Phil. 508
(1951).
214
Rule 61 S U P P O R T ' P E N D E N T E LITE' Sec. 3
3
with motions. It is not however, necessary to require the parties to
go fully into the merits of the case it being sufficient for the court to
ascertain the kind and amount of evidence deemed sufficient to
enable it to justly resolve the application one w a y or the other,
considering the provisional character of the resolution to be en-
4
tered.
However, where the status or juridical relation alleged by the

applicant as ground for his right to support is denied by the adverse
party, the evidence therein shall be clear and satisfactory as the lack
of proof thereon would render an order granting support pendente
5
lite as having been issued in excess of jurisdiction.
b. Adultery as Valid Defense
Accordingly, it has been held that the Court of Appeals commit-

ted an error where it refused to allow the defendant to present his
evidence for the purpose of determining whether it is sufficient,
prima facie to overcome the application for support pendente lite.
Adultery on the part of the wife is a valid defense against an action
for support. Consequently, as to the child, it is also a defense that it
is the fruit of such adulterous relations, for in that case, it would not
be the child of the defendant, hence would not be entitled to support
as such. But as this defense should be established, and not merely
alleged, it would be unavailing if proof thereof is not permitted. It is
not of course necessary to go fully into the merits of the case, it being
sufficient that the court ascertain the kind and amount of evidence
which it may deem sufficient to enable it to justly resolve the appli-
cation, one w a y or the other, in v i e w of the mere provisional charac-
6
ter of the resolution to be entered.
1. If denied, the remedy is certiorari.

An order of the court denying an application for support pen-
7
dente lite is not final in character and as such is considered inter-
8
locutory and non-appealable. As it is non-appealable, the remedy
3
Section 4, Rule 61, Revised Rules of Court.
4
Reyes v. Ines-Luciano, G.R. N o . L-48219, 88 S C R A 803, 809, Feb. 28, 1979.
5
Francisco v. Zandueta, 61 Phil. 752, 757; Herrera v. Barretto, 25 Phil. 245.
6
Ramos v. Court of Appeals, 45 S C R A 604.
7
S a n Juan v. Valenzuela, 117 S C R A 926 (1982).
8
Salazar v. Salazar, L-5823, April 29, 1953.
215
V O L . III
therefore is an original action for certiorari to annul the order of

denial. Thus, in a case where the trial judge denied an application
for support pendente lite on the ground that as the legal separation
of the spouses which the plaintiff sought has not, as yet been de-
creed and the children were not parties to the case, support pendente
lite would be premature, the Supreme Court in upholding the re-
versal of the lower court's decision declared that since the order
denying support pendente lite is interlocutory, plaintiff would have
to wait, for its review by appeal, until months or years later; but
since plaintiff and her children needed alimony to live somehow, an
9
appeal would not have been a speedy and adequate remedy.
2. Where the judge dismissed an action for support on ac-
count of the absence of petitioner and her child in court, even if the
lawyer for petitioner was ready to present evidence in support of the
complaint the Supreme Court in granting a w r i t of certiorari de-
clared that the dismissal of a petition for support without any lawful
ground or reason for so doing amounts to an excess of jurisdiction
10
and abuse of discretion on the part of the respondent court.
1
3. Non-appealability may be waived by failure to object}
c. Affidavits to P r o v e A m o u n t Sufficient
In determining the amount to be awarded as support pendente
lite, mere affidavits may satisfy the court to pass upon the applica-
tion. It is enough that the facts be established by affidavits or other
12
documentary evidence appearing in the record.
S E C . 4. Order. T h e c o u r t shall d e t e r m i n e p r o v i s i o n -
ally the p e r t i n e n t facts, a n d shall r e n d e r s u c h o r d e r s a s j u s -
tice a n d equity m a y r e q u i r e , h a v i n g d u e r e g a r d t o the p r o b -
a b l e outcome o f the case a n d s u c h o t h e r c i r c u m s t a n c e s a s
m a y a i d i n the p r o p e r r e s o l u t i o n o f the q u e s t i o n i n v o l v e d . I f
the a p p l i c a t i o n is g r a n t e d , the c o u r t shall fix the a m o u n t of
money to be provisionally p a i d or such other forms of sup-
"Vinluan v. Court of Appeals, et al., 24 S C R A 787, 788, August 28, 1968.

10
Samson v. Yatco, et al., 1 S C R A 1145,1150, April 28,1961.
n
S a l a z a r v. Salazar, supra.
12
Reyes v. Ines-Luciano, 88 S C R A 803, 809.
216
p o r t a s s h o u l d b e p r o v i d e d , t a k i n g into a c c o u n t the necessi-

ties o f the a p p l i c a n t a n d the r e s o u r c e s o r m e a n s o f the ad-
v e r s e party, a n d the t e r m s o f p a y m e n t o r m o d e f o r p r o v i d i n g
the s u p p o r t . If the a p p l i c a t i o n is d e n i e d , the p r i n c i p a l case
shall b e t r i e d a n d d e c i d e d a s e a r l y a s p o s s i b l e . ( 5 a )
COMMENT:
Taken from Sec. 5 of the former rule.
No substantital change.
T h e support granted may be in money or other forms of support

in accordance w i t h A r t . 194 of the F a m i l y Code of the Philippines.
(Feria)
Factors in Determining Support
T h e following rules w e r e laid down in determining support

spousal and child support:
S E C . 2. Spousal Support. In determining support for the

spouses, the court may be guided by the following rules:
( a ) In the absence of adequate provisions in a written agree-

ment between the spouses, the spouses may be supported from the
properties of the absolute community or the conjugal partnership.
( b ) T h e court may award support to either spouse in such

amount and for such period of time as the court may deem just and
reasonable based on their standard of living during the marriage.
(c) T h e court may likewise consider the following factors: (1)

whether the spouse seeking support is the custodian of a child whose
circumstances make it appropriate for that spouse not to seek out-
side employment; ( 2 ) the time necessary to acquire sufficient educa-
tion and training to enable the spouse seeking support to find appro-
priate employment, and that spouse's future earning capacity; (3)
the duration of the marriage; ( 4 ) the comparative financial resources
of the spouses, including their comparative earning abilities in the
217
V O L . III
labor market; ( 5 ) the needs and obligations of each spouse; ( 6 ) the

contribution of each spouse to the marriage, including services ren-
dered in home-making, child care, education, and career building of
the other spouse; ( 7 ) the age and health of the spouses; ( 8 ) the
physical and emotional conditions of the spouses; ( 9 ) the ability of
the supporting spouse to give support, taking into account that
spouse's earning capacity, earned and unearned income, assets, and
standard of living; and (10) any other factor the court may deem just
and equitable.
( d ) The Family Court may direct the deduction of the provi-
sional support from the salary of the spouse.
SEC. 3. Child Support. T h e common children of the spouses
shall be supported from the properties of the absolute community or
the conjugal partnership.
Subject to the sound discretion of the court, either parent or
both may be ordered to g i v e an amount necessary for the support,
maintenance, and education of the child. It shall be in proportion to
the resources or means of the giver and to the necessities of the
recipient.
In determining the amount of provisional support, the court

may likewise consider the following factors: ( 1 ) the financial re-
sources of the custodial and non-custodial parent and those of the
child; ( 2 ) the physical and emotional health of the child and his or
her special needs and aptitudes; ( 3 ) the standard of living the child
has been accustomed to; ( 4 ) the non-monetary contributions that the
parents will make toward the care and well-being of the child.
Thus, in determining the amount of support to be awarded,

such amount should be in proportion to the resources or means of
the giver and the necessities of the recipient, pursuant to Articles
194, 201 and 202 of the Family Code, to wit:
A r t . 194. Support comprises everything indispensable for

sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of
the family.
T h e education of the person entitled to be supported re-

ferred to in the preceding paragraph shall include his schooling
or training for some profession, trade or vocation, even beyond
218
the age of majority. Transportation shall include expenses in

going to and from school, or to and from place of work.
A r t . 201. T h e amount of support, in the cases referred to

1 2
in Articles 195 and 196, shall be in proportion to the resources
or means of the giver and to the necessities of the recipient.
A r t . 202. Support in the cases referred to in the preceding

article shall be reduced or increased proportionately, according
to the reduction or increase of the necessities of the recipient
and the resources or means of the person obliged to furnish the
same.
It is incumbent upon the trial court to base its award of support

on the evidence presented before it. T h e evidence must prove the
capacity or resources of both parents who are jointly obliged to sup-
port their children as provided for under Article 195 of the Family
Code; and the monthly expenses incurred for the sustenance, dwell-
ing, clothing, medical attendance, education and transportation of
3
the child.
T h e F a m i l y Court m a y direct the deduction of the provisional

4
support from the salary of the parent.
S E C . 5. Enforcement of order. If the a d v e r s e p a r t y fails

to c o m p l y w i t h an o r d e r g r a n t i n g s u p p o r t pendente lite, the
c o u r t shall, motu proprio or u p o n motion, issue an o r d e r of
1
A r t . 195. Subject to the provisions of the succeeding articles, the following are
obliged to support each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegiti-
mate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
2
A r t . 196. Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other to the full extent set forth in
Article 194, except only when the need for support of the brother or sister, being of
age, is due to a cause imputable to the claimant's fault or negligence.
3
L a m v. Chua, G.R. N o . 131286, March 18, 2004.
4
Rules on Provisional Remedies. (See L a m v. Chua, G.R. No. 131286, March 18,
2004, 426 S C R A 29) Amount of Support is never permanent. The Judgment for sup-
port does not become final but is always subject to modification.
219
V O L . III
execution against him, w i t h o u t p r e j u d i c e to his liability f o r

contempt. (6a)
W h e n the p e r s o n o r d e r e d to g i v e s u p p o r t pendente lite
refuses or fails to do so, a n y t h i r d p e r s o n w h o f u r n i s h e d that
support to the a p p l i c a n t may, after d u e notice a n d h e a r i n g in
the same case, o b t a i n a w r i t of execution to enforce his r i g h t
of r e i m b u r s e m e n t against the p e r s o n o r d e r e d to p r o v i d e such
support, ( n )
COMMENT:
SEC. 6. Enforcement of order. If defendant fails to comply

with an order granting support pendente lite, he must be ordered to
show cause why he should not be punished for contempt. Should the
defendant appear to have means to pay support and refuses to pay,
either an order of execution may be issued or penalty for contempt
may be imposed, or both.
The second paragraph is based on Art. 207 of the Family Code

of the Philippines. (Feria)
"Should the defendant appear to have means to pay support

and refuses to pay" was deleted as a condition for contempt.
Examination of debtor under Section 38, Rule 39 to determine

1
the financial condition of the defendant is permitted.
S E C . 6. Support in criminal cases. In c r i m i n a l actions

w h e r e the civil liability i n c l u d e s s u p p o r t f o r the o f f s p r i n g a s
a consequence of the c r i m e a n d the civil aspect t h e r e o f h a s
not b e e n w a i v e d , r e s e r v e d o r instituted p r i o r t o its f i l i n g , the
^ e a s h i m v. Concepcion, 42 Phil. 696.
220
a c c u s e d m a y be o r d e r e d to p r o v i d e s u p p o r t pendente lite to
the c h i l d b o r n t o the o f f e n d e d p a r t y a l l e g e d l y b e c a u s e o f the
c r i m e . T h e a p p l i c a t i o n t h e r e f o r m a y b e f i l e d successively b y
the o f f e n d e d party, h e r p a r e n t s , h e r g r a n d p a r e n t s o r g u a r d -
i a n a n d the State i n the c o r r e s p o n d i n g c r i m i n a l case d u r i n g
its pendency, i n a c c o r d a n c e w i t h the p r o c e d u r e established
u n d e r this R u l e , ( n )
COMMENT:
This is based on Sec. 1 of Rule 111. In criminal actions where

the civil liability includes support for the offspring as a consequence
of the crime and the civil aspect thereof has not been waived, re-
served or instituted prior to its filing, the civil action is deemed
instituted w i t h the criminal action.
S E C . 7. Restitution. W h e n the j u d g m e n t or final o r d e r

o f the c o u r t f i n d s that the p e r s o n w h o h a s b e e n p r o v i d i n g
s u p p o r t pendente lite is not l i a b l e therefor, it shall o r d e r the
r e c i p i e n t t h e r e o f to r e t u r n to the f o r m e r the a m o u n t s al-
r e a d y p a i d w i t h l e g a l interest f r o m the dates o f actual pay-
ment, w i t h o u t p r e j u d i c e to the r i g h t of the r e c i p i e n t to o b -
tain r e i m b u r s e m e n t in a s e p a r a t e action f r o m the p e r s o n
l e g a l l y o b l i g e d t o g i v e the s u p p o r t . S h o u l d the recipient fail
t o r e i m b u r s e s a i d a m o u n t s , the p e r s o n w h o p r o v i d e d the
s a m e m a y l i k e w i s e seek r e i m b u r s e m e n t thereof in a sepa-
r a t e action f r o m the p e r s o n l e g a l l y o b l i g e d t o g i v e such sup-
port, (n)
COMMENT:
This is a new provision, which provides for restitution, when
the judgment or final order of the court finds that the person who
has been providing support pendente lite is not liable therefor. The
Court:
a. shall order the recipient thereof to return to the former
221
V O L . III
the amounts already paid with legal interest from the dates of ac-
tual payment.
b. This is without prejudice to the right of the recipient to
obtain reimbursement in a separate action from the person legally
obliged to give the support.
c. Should the recipient fail to reimburse said amounts, the
person who provided thru same may likewise seek reimbursement
thereof in a separate action from the person legally obliged to give
such support.
Examination of debtor under Section 38, Rule 39 to determine

1
the financial condition of the defendant is permitted.
^ e a s h i m v. Conception, 42 Phil. 696.
222
SPECIAL CIVIL ACTIONS
RULE 62
INTERPLEADER
S E C T I O N 1. When interpleader proper. W h e n e v e r con-

flicting c l a i m s u p o n the s a m e s u b j e c t m a t t e r a r e o r m a y b e
m a d e a g a i n s t a p e r s o n w h o c l a i m s n o interest w h a t e v e r i n
the s u b j e c t matter, o r a n interest w h i c h i n w h o l e o r i n p a r t i s
not d i s p u t e d b y the claimants, h e m a y b r i n g a n action against
the conflicting c l a i m a n t s t o c o m p e l t h e m t o i n t e r p l e a d a n d
litigate t h e i r s e v e r a l c l a i m s a m o n g themselves, ( l a )
COMMENT:
Taken from Section 1 of the former Rule 63, no substantial

change.
T h e f o r m e r R u l e 62, S E C T I O N 1. Preceding rules applicable

in special civil actions. T h e provisions of the preceding rules shall
apply in special actions for interpleader, declaratory relief and simi-
lar remedies, certiorari, prohibition, mandamus, quo warranto, emi-
nent domain, foreclosure of mortgage, partition, forcible entry and
detainer, and contempt, which are not inconsistent with or may
serve to supplement the provisions of the rules relating to such
special civil actions W A S D E L E T E D .
Special civil actions are governed by the rules on ordinary civil
actions, subject to the specific rules prescribed for a particular spe-
1
cial civil action.
êc. 3(a) of Rule 1.
223
V O L . III
a. C o n c e p t of I n t e r p l e a d e r
The action of interpleader is a remedy whereby a person who
has property whether personal or real, in his possession, or an obli-
gation to render wholly or partially, without claiming any right in
both, or claims an interest which in whole or in part is not disputed
by the conflicting claimants, comes to court and asks that the per-
sons who claim the said property or who consider themselves enti-
tled to demand compliance with the obligation, be required to liti-
gate among themselves, in order to determine finally w h o is entitled
to one or the other thing. T h e remedy is afforded not to protect a
person against a double liability but to protect him against a double
vexation in respect of one liability. W h e n the court orders that the
claimants litigate among themselves, there arises in reality a new
action and the former are styled interpleaders, and in such a case
the pleading which initiates the action is called a complaint of inter-
2
pleader and not a cross-complaint.
b. Rule Applies Regardless of N a t u r e of Subject Mat-

ter
T h e procedure under the Rules of Court is the same as that

under the Code of Civil Procedure except that under the latter an
interpleader suit is proper only if the subject matter of the contro-
versy is personal property or relates to the performance of an obliga-
tion. Under the present rule the remedy is available regardless of
3
the nature of the subject matter of the controversy, which m a y
either be real or personal property.
c. J u r i s d i c t i o n in I n t e r p l e a d e r c a s e
(1) A n I n t e r p l e a d e r t o D e t e r m i n e the O w n e r s h i p o f R e a l
P r o p e r t y is a R e a l A c t i o n
A complaint filed with the R T C that called for an interpleader

to determine the ownership of the real property in question is a real
action. Specifically, it forced persons claiming an interest in the land
2
Praxedes Alvarez, et al. v. The Commonwealth of the Philippines, et al., 66
Phil. 302; Ocampo v. Tirona, G.R. N o . 147812, April 6, 2005.
3
Wack-Wack Golf and Country Club v. Won, 70 S C R A 165.
224
Rule 62 INTERPLEADER Sec. 1
to settle the dispute among themselves as to which of them owned

the property. Essentially, it sought to resolve the ownership of the
land and was not directed against the personal liability of any par-
ticular person. It was therefore a real action, because it affected title
to or possession of real property}
M u n i c i p a l T r i a l Court's J u r i s d i c t i o n i n I n t e r p l e a d e r C a s e s
(2) If it is a real action jurisdiction would depend on the value

6
of the property. Compare: Vda. De Camilo v. Arcamo holding that,
where the subject matter of the complaint for interpleader was the
conflicting claims of right of possession in the premises, the same is
incapable of pecuniary estimation. However, in Makati Development
6
Corporation v. Tanjuatco, the Court held that inferior trial courts
(Municipal Trial Courts) have jurisdiction in interpleader cases where
the amount involved is within their jurisdiction.
d. Requisites
For an action in interpleader to prosper, the following require-

ments must be present:
1. T h e plaintiff claims no interest in the subject matter or

his claim thereto is not disputed.
2. T h e r e must be at least two or more conflicting claimants.
3. T h e parties to be interpleaded must make effective claims.
4. T h e subject matter must be one and the same.
e. Illustrative Cases
The following actions for interpleader are proper:

1. An action by the lessee who does not know the person to
7
whom to pay rentals due to conflicting claims on the property.
8
2. Conflicting claims to property seized by the Sheriff.
4
Ramos v. Ramos, 399 S C R A 43 (2003).
5
3 Phil. 146.
6
27 S C R A 401 (1969).
7
Pagkalinawan v. Rodas, 80 Phil. 281; Oriental v. Tambunting, G.R. No. L-2097,
October 16, 1950, 87 Phil. 529; Ocampo v. Tirona, G.R. No. 147812, April 8, 2005.
8
Syquia v. Sheriff, 46 Phil. 400.
225
V O L . III
3. Interpleader is an issuing bank's proper remedy where

the purchaser of a cashier's check claims it was lost and another has
9
presented it for payment.
4. Where a principal created a lien in favor of another per-
son on funds in the hands of an agent, the action of the agent against
his principal and the other claimants is a complaint of interpleader.
f. Essence of I n t e r p l e a d e r
The essence of an interpleader, aside from the disavowal of the

interest in the property in litigation on the part of the petitioner, is
the deposit of the property or funds in controversy with the court. It
is a rule founded on justice and equity: "That the plaintiff may not
continue to benefit from the property or funds in litigation during
the pendency of the suit at the expense of whoever w i l l ultimately be
10
decided as entitled thereto."
g. P u r p o s e of r e m e d y to a f f o r d p r o t e c t i o n a g a i n s t
d o u b l e v e x a t i o n in r e s p e c t to o n e l i a b i l i t y
There must be conflicting claims against the plaintiff inter-

11
pleader.
h. Cases w h e r e interpleader w a s held improper
An action filed by the plaintiffs to resolve by interpleader a

breach of contract between t w o corporations w i t h regard to the man-
agement, administration and ownership of Project 4 which does not
affect the plaintiffs as residents of Project 4 is improper where there
12
are no conflicting claims made against the plaintiffs.
Rule 63, Section 1 of the Revised Rules of Court (formerly Rule

14) requires as an indispensable element that "conflicting claims
upon the same subject matter are or m a y be made" against the
plaintiff-in-interpleader" who claims no interest whatever in the
subject matter or an interest which in whole or in part is not dis-
9
Mesina v. I A C , 145 S C R A 497 (1986).
"Eternal Gardens Memorial Parks Corp. v. I A C , 165 S C R A 439.
u
V d a . de Camilo v. Arcamo, 3 S C R A 146; Beltran v. P H H C , 29 S C R A 145;
Praxedes Alvarez v. Commonwealth of the Philippines, supra.
12
Beltran v. P H H C , 29 S C R A 145.
226
puted by the claimants." W h i l e the t w o defendant corporations may

have conflicting claims between themselves w i t h regard to the man-
agement, administration and ownership of Project 4, such conflict-
ing claims are not against the plaintiffs nor do they involve or affect
the plaintiffs. No allegation is made in their complaint that any
corporation other than the P H H C which was the only entity privy to
their lease-purchase agreement, ever made on them any claim or
demand for payment of the rentals or amortization payments. T h e
questions of fact raised in their complaint concerning the enforce-
ability and recognition or non-enforceability and non-recognition of
the turnover agreement of December 27, 1961 between the two de-
fendant corporations are irrelevant to the action of interpleader, for
these conflicting claims, loosely so called, are between the two corpo-
rations and not against plaintiffs. Both defendant corporations were
in conformity and had no dispute, as pointed out by the trial court
that the monthly payments and amortizations should be made di-
13
rectly to the P H H C alone.
i. Not Available to One Already Held Liable
An interpleader is no longer available to a person who has

become independently liable to any of the claimants by virtue of a
judgment. A stakeholder should use reasonable diligence to hale the
contending claimants to court he need not await actual institution of
independent suits against him before filing a bill of interpleader. He
should file an action of interpleader within a reasonable time after a
dispute has arisen without waiting to be sued by either of the con-
tending claimants. Otherwise, he may be barred by laches or undue
delay. But where he acts with reasonable diligence in v i e w of the
14
environmental circumstances, the remedy is not barred.
It has been held that a stakeholder's action of interpleader is

too late when filed after judgment has been rendered against him in
15
favor on one of the contending claimants, especially where he had
notice of the conflicting claims prior to the rendition of the judgment
and neglected the opportunity to implead the adverse claimants in
13
Beltran v. People's Homesite and Housing Corporation, 29 S C R A 149; See also
Vda. De Camilo v. Arcamo, 3 S C R A 146.
M
Wack-Wack Golf and Country Club v. Won, 70 S C R A 165.
16
Troy v. Troy, 16 p. 2d 290.
227
V O L . III
the suit where judgment was entered. This must be so, because once
judgment is obtained against him by one claimant he becomes liable
16
to the latter.
In fine, interpleader suit cannot prosper where the Corpora-
tion had already been made independently liable in a civil case and,
therefore, its application for interpleader would in effect be a collat-
eral attack upon the final judgment in the civil case. T h e inter-
pleader is improper, where the defendant had already established
his rights to a membership fee certificate in a civil case and, there-
fore the interpleader suit would compel him to establish his rights
anew, and thereby increase instead of diminish litigation's, which is
one of the purposes of an interpleader suit, with the possibility that
the benefits of the final judgment in the said civil case might eventu-
ally be taken away from him. Because the Corporation allowed itself
to be sued to final judgment in the said case, its action of inter-
pleader was filed inexcusably late, for which reason it is barred by
17
laches or unreasonable delay.
j. Interpleader as P r o p e r Remedy in Search Warrant

Cases
Where personality has been seized under a search warrant, and

it appears reasonably definite that the seizure w i l l not be followed
by the filing of any criminal action for the prosecution of the offenses
in connection with which the warrant was issued, the public pros-
ecutors having pronounced the absence of basis therefor, and there
are, moreover, conflicting claims asserted over the seized property,
the appropriate remedy is the institution of an ordinary civil action
by any interested party, or of a special civil action of interpleader by
the Government itself, that action being cognizable not exclusively
by the court issuing the search warrant but by any other competent
court to which it may be assigned by raffle. In such a case, the seiz-
ing court shall transfer custody of the seized articles to the court
having jurisdiction of the civil action at any time, upon due applica-
tion by any interested party. But such a transfer, it must be empha-
sized, is a matter of comity, founded on pragmatic considerations, not
16
Yarborough v. Thompson, 41 A m . Dec. 626.
17
Wack-Wack Golf & Country Club, Inc. v. Won, 70 S C R A 165.
228
compellable by or resulting from any overriding authority of a writ

18
or process of the court having cognizance of the civil action.
S E C . 2. Order. U p o n the filing of the complaint, the

c o u r t shall issue a n o r d e r r e q u i r i n g the conflicting claim-
ants t o i n t e r p l e a d w i t h o n e a n o t h e r . I f the interests o f justice
s o r e q u i r e , the c o u r t m a y d i r e c t i n s u c h o r d e r that the s u b -
j e c t m a t t e r b e p a i d o r d e l i v e r e d t o the c o u r t . ( 2 a )
COMMENT:
2. N o S u b s t a n t i a l C h a n g e . "Command" w a s c h a n g e d
to "direct."
a. T h e r e must be an o r d e r r e q u i r i n g defendants to
litigate b e t w e e n themselves
It is necessary that there be a declaration to this effect before

the defendants m a y litigate among themselves and file a complaint
of interpleader. Section 120 of the Code of Civil Procedure in truth
requires such step and good practice demands that the defendants
be not permitted to file claims or complaints of interpleader until
after the court has ordered that they should litigate among them-
selves. This procedure will do away with groundless suits, and will
1
save the parties time, inconvenience, and unnecessary expenses.
It was, however, held in a much later case that the Order of the
trial court requiring the parties to file their answers is to all intents
and purposes an order to interplead, substantially and essentially
and therefore in compliance with the provisions of Rule 63 of the
2
Rules of Court.
18
Vlasons Ent. Corp. v. Hon. Court of Appeals, 155 S C R A 186, October 28,1987.
^raxedes Alvarez, et al. v. The Commonwealth of the Philippines, 65 Phil. 302.

2
Mesina v. Intermediate Appellate Court, 145 S C R A 497 (1986).
229
V O L . III
S E C - 3. Summons. S u m m o n s shall be s e r v e d u p o n the

conflicting claimants, together w i t h a copy of the complaint
a n d order. (3)
No Change.
S E C . 4. Motion to dismiss. W i t h i n the time f o r filing an

answer, each claimant m a y file a motion to dismiss on the
g r o u n d o f i m p r o p r i e t y o f the i n t e r p l e a d e r action o r o n o t h e r
a p p r o p r i a t e g r o u n d s specified in R u l e 16. T h e p e r i o d to file
the a n s w e r shall be tolled a n d if the motion is d e n i e d , the
m o v a n t m a y f i l e his a n s w e r w i t h i n the r e m a i n i n g p e r i o d , b u t
w h i c h shall not b e less t h a n f i v e (5) d a y s i n a n y event, reck-
o n e d f r o m notice of denial, ( n )
COMMENT:
This is a new provision which now allows the filing of a motion

to dismiss of an interpleader action on the ground of impropriety of
the interpleader action or on other appropriate grounds specified in
Rule 16. But like a motion for bill of particulars, the period to file the
answer shall be tolled and if the motion is denied, the movant m a y
file his answer within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of denial.
S E C . 5. Answer and other pleadings. E a c h c l a i m a n t

shall f i l e his a n s w e r setting f o r t h his c l a i m w i t h i n f i f t e e n
(15) d a y s f r o m s e r v i c e of the s u m m o n s u p o n h i m , s e r v i n g a
copy thereof u p o n e a c h o f the o t h e r conflicting c l a i m a n t s
w h o m a y f i l e their r e p l y thereto a s p r o v i d e d b y these R u l e s .
I f a n y claimant fails t o p l e a d w i t h i n the time h e r e i n f i x e d ,
the court may, on motion, d e c l a r e h i m in default a n d t h e r e a f e r
r e n d e r j u d g m e n t b a r r i n g h i m f r o m a n y c l a i m i n respect t o
the subject matter.
T h e p a r t i e s i n a n i n t e r p l e a d e r action m a y f i l e counter-
claims, cross-claims t h i r d - p a r t y c o m p l a i n t s a n d r e s p o n s i v e
p l e a d i n g s thereto, a s p r o v i d e d b y these R u l e s . (4a)
230
COMMENT:
Taken from Sec. 4. of the former Rule which reads:
SEC. 4. Other pleadings. Each claimant shall file his an-

swer setting forth his respective claim within fifteen (15) days from
service of the summons upon him, serving copy thereof upon each of
the other conflicting claimants who may file their reply thereto as
provided by these rules. If any claimant fails to plead within the time
herein fixed, the court may enter judgment barring him from any
claim in respect to the subject matter.
Under the present Rule, if any claimant fails to plead within

the time herein fixed, the court may, on motion, declare him in
default. But unlike ordinary default, which no longer requires the
plaintiff to prove the allegations in his complaint, in interpleader,
the court thereafter shall render judgment barring him from any
claim in respect to the subject matter.
T h e parties in an interpleader action may also file counter-

claims, cross-claims, third-party complaints and responsive plead-
ings thereto, as provided by these Rules, which expressly authorize
the additional pleadings and claims therein, in the interest of a
1
complete adjudication of the controversy and its incidents.
Thus, the court in a complaint for interpleader shall determine

the rights and obligations of the parties and adjudicate their respec-
tive claims. Such rights, obligations, and claims could only be adju-
dicated if put forward by the aggrieved party in assertion of his
rights. T h e second paragraph of Section 5 of Rule 62 of the 1997
Rules of Civil Procedure provides that the parties in an interpleader
action may file counterclaims, cross-claims, third party complaints
and responsive pleadings thereto, "as provided by these Rules." The
second paragraph was added to Section 5 to expressly authorize the
additional pleadings and claims enumerated therein, in the interest
of a complete adjudication of the controversy and its incidents. Pur-
1
Arreza v. Diaz, Jr., 364 S C R A 88 (2001).
231
V O L . III
suant to said Rules, respondent should have filed his claims against
petitioner in the interpleader action. Having asserted his rights as a
buyer in good faith in his answer, and praying relief therefor, re-
spondent should have crystallized his demand into specific claims
for reimbursement by petitioner. This he failed to do. His claim for
reimbursements as a buyer in good faith is thus barred under the
2
principle of res judicata.
S E C . 6. Determination. A f t e r the p l e a d i n g s of the con-

flicting claimants h a v e b e e n f i l e d , a n d p r e - t r i a l h a s b e e n con-
ducted i n a c c o r d a n c e w i t h the R u l e s , the c o u r t shall p r o c e e d
to determine their respective r i g h t s a n d a d j u d i c a t e their sev-
e r a l claims. ( 5 a )
COMMENT:
Taken from Sec. 5 of the former Rule which reads:
SEC. 5. Determination. After the pleadings of the conflicting

claimants have been filed the court shall proceed to determine their
respective rights and adjudicate their several claims.
The present Rule contemplates of a Pre-trial in accordance

with the rules.
S E C . 7. Docket and other lawful fees, costs and litigation

expenses as liens. T h e d o c k e t a n d o t h e r l a w f u l fees p a i d by
the p a r t y w h o f i l e d a c o m p l a i n t u n d e r this R u l e , a s w e l l a s
the costs a n d litigation e x p e n s e s shall constitute a lien or
c h a r g e u p o n the subject m a t t e r of the action, unless the c o u r t
shall o r d e r o t h e r w i s e . ( 6 a )
2
Arreza v. Diaz, Jr., supra.
232
COMMENT:
SEC. 6. Costs as lien. The costs shall be a first lien or charge

upon the subject matter of the proceedings unless the court shall
otherwise order.
In addition to the costs, the docket and other lawful fees, as

well as reasonable expenses of litigation are now a lien or charge
upon the subject matter. (Feria)
233
RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
S E C T I O N 1. Who may file petition. A n y p e r s o n inter-

ested u n d e r a d e e d , w i l l , contract or o t h e r w r i t t e n instru-
ment, w h o s e rights a r e affected by a statute, executive o r d e r
o r regulation, o r d i n a n c e , o r a n y o t h e r g o v e r n m e n t a l r e g u l a -
tion may, b e f o r e b r e a c h o r violation thereof, b r i n g a n action
i n the a p p r o p r i a t e R e g i o n a l T r i a l C o u r t t o d e t e r m i n e a n y
question of construction or v a l i d i t y a r i s i n g , a n d f o r a decla-
ration of his r i g h t s or duties, t h e r e u n d e r .
A n action for the r e f o r m a t i o n o f a n i n s t r u m e n t , t o q u i e t

title to r e a l p r o p e r t y or r e m o v e c l o u d s t h e r e f r o m , or to con-
solidate o w n e r s h i p u n d e r A r t i c l e 1607 o f the C i v i l C o d e , m a y
b e b r o u g h t u n d e r this R u l e , ( l a , R64)
COMMENT:
Taken from Section 1 of the former Rule 64.
No substantial change, in this and the subsequent sections except

the inclusion "of any other governmental regulation" and to point out
that the action shall be filed in the appropriate regional trial court
to stress the original and exclusive jurisdiction of the regional trial
court in actions under the first paragraph.
3. Notes and Cases
a. Concept and w h e r e filed
A petition for declaratory relief is usually resorted to, to test
234
Rule 63 DECLARATORY RELIEF A N D SIMILAR REMEDIES Sec. 1
the validity of tax ordinances where there is no tax due yet, or the
1
constitutionality of an ordinance before it is breached.
a.1 O r i g i n a l j u r i s d i c t i o n of a petition for declaratory relief

2
is with the Regional Trial Court. Thus, where a petition seeks a
declaration of the unconstitutionality and/or nullity of a law, it must
be treated as one seeking declaratory relief under Rule 64 of the
Rules of Court and should be brought before the Regional Trial
Court and not the Supreme Court even if only questions of law are
3
involved.
T h e Supreme Court has no original jurisdiction over a petition

for declaratory relief, even if only questions of law are involved like
a petition to declare an ordinance unconstitutional. T h e court merely
4
exercises appellate jurisdiction over such petitions. However, excep-
tions to the rule have been recognized. Thus, where the petition has
far-reaching implications and raises questions that should be re-
solved, it may be treated as one for mandamus}
b. P u r p o s e of Declaratory Relief
T h e primary purpose of a petition for declaratory relief is to

relieve litigants of the common law rule that no declaration of rights
may be judicially adjudged unless a right has been violated and for
the violation of which relief may be granted. T h e petition gives a
practical remedy in ending controversies which have not reached
the stage where other relief is immediately available. T h e y supply
the need for a form of action that will set controversies at rest before
they lead to repudiation of obligations, invasion of rights, and the
commission of wrongs. T h e y are intended to prove a convenient
method of determining the disputed interests of parties under deeds,
6
wills, contracts or other writings constituting contracts.
Under our rules the petition is not limited to contracts, but

includes a statute, executive order or regulation or ordinance. It is a
1
City Government of Quezon City v. Ericta, 122 S C R A 759.
2
Allied Broadcasting Center, Inc. v. Republic, 190 S C R A 782 (1990).
3
Supra; Philnabank Employees Association v. Estanislao, 227 S C R A 804 (1993).
4
Tano v. Socrates, 278 S C R A 154, August 14, 1997.
5
Salvacion v. Central Bank of the Philippines, 278 S C R A 27, August 21, 1997.
6
16 Am. Jur. 281; 68 A L R 116.
235
V O L . III
preventive and anticipatory remedy designed to declare the rights of

the parties or to express the opinion of the court on a question of law,
without ordering anything to be done. Its distinctive characteristic
is that the declaration stands by itself, that is, no executory process
7
follows as of course.
It is thus a proceeding determinative of the rights of the par-
ties to the case, and as such, exhibits characteristics quite distinct
from those of an advisory opinion, rendered at the request of the
executive or the legislative department of the government to the
handling down of which courts in this and the other jurisdiction
8
have cast a definitive aversion.
It is permitted on the theory that courts should be allowed to

act not only when harm is actually done and rights jeopardized by
physical wrongs or physical attack upon existing legal relations, but
also when challenge, refusal, dispute, or denial thereof is made
amounting to live controversy. T h e uncertainty and insecurity which
may thereby be occasioned may hamper or disturb the freedom of
parties to transact business or to make improvements on their prop-
erty rights. A situation is thus created wherein a judicial declaration
may serve to prevent a dispute from ripening into violence or de-
struction. Courts thus become an instrument of both curative and
9
preventive justice.
c. R e q u i s i t e s f o r P r o p r i e t y of P e t i t i o n
With the aforementioned purpose in mind, the following requi-

sites must be present in order to avail of the remedy:
10
1. There must be a justiciable controversy;
2. T h e controversy must be between persons whose inter-

ests are adverse;
3. T h e parties must have legal interest in the controversy;

11
4. T h e controversy must be ripe for judicial determination;
Westminster High School v. Bernardo, 51 O . G . 6245.

8
3 MORAN, p. 148,1980 Ed.
9
3 MORAN, supra.
10
Obiles v. Republic, 92 Phil. 864.
n
Tolentino v. Board of Accountancy, 90 Phil. 83; Caltex v. Palomar, 18 S C R A
247; Board of Optometry v. Colet, 260 S C R A 88 (1996).
236
5. T h e petition must be filed before there is a breach or

12
violation.
c.1 Justiciable controversy
For there to be a justiciable controversy, there must be: ( 1 ) real

parties in interest; ( 2 ) asserting adverse claims; and ( 3 ) presenting a
13
ripe issue.
c.2 Actual or Ripening Seeds of Controversy
T h e court must be satisfied that "an actual controversy" or the

ripening seeds of one, exists between parties, all of whom are sui
juris and before the court, and that the declaration sought will be of
practical help in ending the controversy. By "ripening seeds" the
court meant, not that sufficient accrued facts may be dispensed
with, but that a dispute m a y be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and vio-
lence of a full blown battle that looms ahead. It describes a state of
facts indicating "imminent" and "inevitable" litigation provided the
14
issue is not settled and stabilized by a tranquilizing declaration.
c.3 Actual Case or Controversy Construed
(1) T h e first requisite in order that judicial inquiry may be

exercised is that there must be an actual case or controversy. A
"controversy" must be one that is appropriate for judicial determina-
tion. A judicial controversy is thus distinguished from a difference or
dispute of a hypothetical or abstract character; from one that is
academic or moot. T h e controversy must be definite and concrete,
touching the legal relations of parties having adverse legal inter-
ests. It must be a real and substantial controversy admitting of a
specific relief through a decree of a conclusive character, as distin-
guished from an opinion advising what the law would be upon hypo-
thetical state of facts. W h e r e there is such a concrete case admitting
of an immediate and definitive determination of the legal rights of
l2
Sec. 1, Rule 64.
l3
Tolentino v. Board of Accountancy, 90 Phil. 83, September 28, 1951; See also
Insular Life Assurance Co., Ltd. v. Social Security Commission, 22 S C R A 1207; Caltex
Phil. v. Palomar, 18 S C R A 247.
14
Tolentino v. Board of Accountancy, supra; In re Pablo y Sen, et al. v. Republic
of the Philippines, G.R. N o . L-6868, April 30,1955.
237
V O L . III
the parties in an adversary proceedings upon the facts alleged, the

judicial function may be appropriately exercised although the adju-
dication of the rights of the litigants may not require the award of
15
process or the payment of damages. It must be "ripe" for determi-
16
nation, not conjectural or anticipatory.
(2) In sum, an actual case or controversy means an existing
case or controversy that is appropriate or ripe for determination, not
17
conjectural or anticipatory.
(3) An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not conjec-
18
tural or anticipatory.
d. Active Antagonistic Assertion a n d Denial of Rights
The petition must show "an active antagonistic assertion of a

legal right on one side and a denial thereof on the other concerning a
real, and not a mere theoretical question or issue." An actual contro-
versy does not arise upon the mere filing by the Solicitor General of
an opposition to the petition for the declaratory relief. T h e reason is
that the cause of action must be made out by the allegations of the
19
complaint or petition, unaided by the answer.
e. Speculative or Hypothetical Cases N o t A l l o w e d
( 1 ) A justiciable controversy has been defined as, "a definite

and concrete dispute touching on the legal relations of parties having
adverse legal interests" which may be resolved by a court of l a w
through the application of a law. Courts have no judicial power to
review cases involving political questions and as a rule, will desist
from taking cognizance of speculative or hypothetical cases, advi-
sory opinions and in cases that has become moot. Subject to certain
well-defined exceptions courts will not touch an issue involving the
validity of a law unless there has been a governmental act accom-
15
Aetna Life Insurance v. Haworth, 300 U . S . 227, p. 120.
16
Garcia v. Executive Secretary, supra.
17
Garcia v. Executive S e c , supra note 28, at 522; Board of Optometry v. Court of
Appeals, 260 S C R A 88 (1996).
18
Garcia v. Executive Secretary, supra, 522; Board of Optometry v. Colet, 260
S C R A 104.
19
Delumen v. Republic, 94 Phil. 287; Obiles v. Republic, supra.
238
plished or performed that has a direct adverse effect on the legal

right of the person contesting its validity. In the case of PACU v.
20
Secretary of Education the petition contesting the validity of a
regulation issued by the Secretary of Education requiring private
schools to secure a permit to operate was dismissed on the ground
that all the petitioners have permits and are actually operating
under the same. T h e petitioners questioned the regulation because
of the possibility that the permit might be denied them in the future.
T h e Court held that there was no justiciable controversy because
the petitioners suffered no wrong by the implementation of the ques-
tioned regulation and therefore, they are not entitled to relief. A
mere apprehension that the Secretary of Education will withdraw
the permit does not amount to a justiciable controversy. The ques-
tioned regulation in the PACU case may be questioned by a private
school whose permit to operate has been revoked or one whose appli-
cation therefor has been denied.
( 2 ) T h e Court in setting aside the decision of the Court of

Appeals declaring as without force and effect the Special Orders of
the D E N R setting forth guidelines for the identification, delineation
and recognition of ancestral land claims nationwide, held that the
court cannot rule on the basis of petitioners' speculation that the
D E N R will approve the application to ancestral lands by the heirs of
Carantes. There must be an actual governmental act which directly
causes or w i l l imminently cause injury to the alleged legal right of
the petitioner to possess the land before the jurisdiction of this Court
may be invoked. There is no showing that the petitioners were being
evicted from the land by the heirs of Carantes (the applicant for
certification of ancestral land claim) under orders from the D E N R .
By the petitioners own admission that the respondents are still
processing and have not approved the application of the heirs of
Carantes, the petitioners alleged right to possess the land is not
violated nor is in imminent danger of being violated, as the D E N R
may or may not approve Carantes' application. Until such time, the
petitioners are simply speculating that they might be evicted from
the premises at some future time. Borrowing from the pronounce-
ments of the Court in the PACU case, "They (the petitioners) have
suffered no wrong under the terms of the law and, naturally need
"97 Phil. 806(1955).
239
V O L . III
no relief in the form they now seek to obtain." If indeed the heirs of
Carantes are trying to enter the land and disturbing the petitioners
possession thereof even without prior approval by the D E N R of the
claim of the heirs of Carantes, the case is simply one for forcible
21
entry.
f. Existence of j u s t i c i a b l e c o n t r o v e r s y
Where an advertising corporation was advised by the postmas-

ter general that its proposed sales promotion plan of a certain prod-
uct has the characteristics of lottery, and that if such sales plan was
carried out, a fraud order against said corporation will be issued, an
action for declaratory relief to determine the legality of the corpora-
22
tion's promotion plan is proper. T h e r e is here a justiciable contro-
versy.
T h e appellee's insistent assertion of its claim to the use of the

mails for its proposed contest, and the challenge thereto and conse-
quent denial by the appellant of the privilege demanded, undoubt-
edly spawned a live controversy. T h e r e is an active antagonistic
assertion of a legal right on the part of the appellee and a denial
thereof on the part of appellant concerning a real question or issue.
With the appellee's bent to hold the contest and the appellant's
threat to issue a fraud order therefor if carried out, the contenders
are confronted by the ominous shadow of an imminent and inevita-
ble litigation unless their differences are settled and stabilized by a
23
tranquilizing declaration. Doubt, if any there was, has ripened into
a justiciable controversy when it w a s translated into a positive claim
24
of right which is actually contested.
g. Advisory Opinions, M o o t Questions not Permitted
An action for declaratory judgment cannot be invoked solely to

try issues or to determine a moot, abstract or theoretical question, or
25
to decide claims which are uncertain or hypothetical.
21
C u t a r a n v. Department of Environment and N a t u r a l Resources, represented
by Sec. Victor O. Ramos, 350 S C R A 697, January 31, 2001.
^Caltex v. Palomar, 18 S C R A 247, 29 September 1966.
"Pablo Y. Sen v. Republic, 96 Phil. 987.
M
3 MORAN, COMMENTS ON THE RULES OF COURT, 1963 E d . , pp. 132-133, citing Wood-
ward v. Fox West Theaters, 36 Ariz., 251, 824 Pac. 350, 18 S C R A 247.
" L i m v. Republic, 37 S C R A 783.
240
T h e question is whether the facts alleged a substantial contro-

versy between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory re-
lief.
Courts cannot furnish answers to purposeless questions that

do not exist. T h e r e must be an actual and justiciable, not merely
26
theoretical controversy.
h. I n s t a n c e s W h e n D e c l a r a t o r y R e l i e f i s not P r o p e r
1. To Obtain Judicial Declaration of Citizenship
It has consistently been held that declaratory relief cannot be

availed of for the express purpose of obtaining a judicial declaration
27
of Philippine citizenship.
2. To Resolve a Political Issue or Question
A petition for declaratory relief cannot be instituted to resolve

a political issue that involves the wisdom of the decision to call for a
referendum, because the power to determine when a referendum
should be called and what matter is important to refer to the people
resides in the political branch of the government, the exercise of
which involves consideration of a multitude of factors political,
social, economic, etc. normally outside the periphery of compe-
28
tence of the courts.
3. To Seek Relief on Moot Questions
A petition for declaratory relief is not permissible in moot cases.

For this purpose, a moot case has been defined by the Supreme
Court as one which seeks to get a judgment on a pretended contro-
versy, when in reality there is none, or a decision in advance about a
right before it has actually been asserted and contested, or a judg-
26
Jimenez v. Roa, 39 S C R A 329.
27
Delumen v. Republic, 94 Phil. 287 (1954); Tan v. Republic, 113 Phil. 391, Oct.
31, 1961; Santiago v. Commissioner of Immigration, 7 S C R A 21, Jan. 31, 1963; Dy
Poco v. Commissioner of Immigration, et al., 16 S C R A 615, March 31,1966; Singson v.
Republic, 22 S C R A 353, Jan. 30,1968.
M
D e la Liana v. Commission on Elections, et al., 80 S C R A 525, 529, Dec. 9,
1977.
241
V O L . III
ment upon some matter, which, when rendered, for any reason,
cannot have any practical legal effect upon a then existing contro-
29
versy.
Where, however, the complaint alleges other matters sufficient
to make out a case of specific performance and defendant failed to
challenge the form of the action availed of, the Court may grant such
30
affirmative reliefs as the evidence warrant.
4. Where a Decision would not Terminate Uncertainty or Con-

troversy
Under the Revised Rules of Court, the court may refuse to
exercise its power to declare rights and to construe instruments in
any case where a decision would not terminate the uncertainty or
controversy which gave rise to the action, or in any case where the
declaration or construction is not necessary and proper at the time
31
under all the circumstances. In this regard, where another equally
adequate and appropriate remedy is already available for the issues
or rights sought to be determined and declared, as where another
equally serviceable statutory remedy has been specifically provided
in cases of similar import, and particularly where statutory remedy
is exclusive, a petition for declaratory relief ordinarily will not be
32
entertained.
5. Petition must be Filed before Breach of Contract or Statute
i. A petition for declaratory relief will not prosper if filed

after the contract or statue on which it is based has already been
breached. Thus, where the failure of the owner of some motor boats
who refused to secure a commercial fishing boat license being re-
quired by the Director of Fisheries was brought to the attention of
the City Fiscal of Manila for appropriate action, a subsequent peti-
tion for declaratory relief w i l l not prosper because the action was
filed after the statute the construction of which was sought has been
33
breached.
^ G S I S Employees Association v. Alvendia, et al., 108 Phil. 505; See also O n g

Lian v. Manila, G.R. N o . 7453, M a y 11, 1956.
30
A d l a w a n v. I A C , 170 S C R A 165.
31
Sec. 5, Rule 64, Revised Rules of Court.
32
Hoskyns v. National City Bank of N e w York, 85 Phil. 201.
^De Borja v. Villadolid, 47 O . G . 2315.
242
ii. T h e l a w does not require that there shall be an ac-

tual pending case. It is sufficient that there is a breach of the
law, an actionable violation to bar a complaint for declaratory
34
judgment.
iii. W h e n there has been a breach of the Agricultural

Tenancy A c t , the Court of First Instance has no jurisdiction to
35
entertain an action for declaratory relief.
iv. Declaratory relief is not proper after a contract, stat-

36
ute or right has been v i o l a t e d .
v. An action for declaratory relief is proper to deter-

37
mine the scope and applicability of a municipal tax ordinance
provided that there was y e t no breaching of the ordinance.
A l s o , the constitutionality of an executive order or regulation
38
maybe ventilated in a declaratory relief action. Thus, a peti-
tion for declaratory relief questioning the validity of an ordi-
nance w a s dismissed because criminal cases for its violation
39
had been previously filed and decided.
i. Subject M a t t e r of Petition for Declaratory Relief
Only a deed, will, contract, or other written instrument, stat-

ute, executive order or regulation or ordinance or any other govern-
ment regulation may be the subject of a petition for declaratory
relief.
j. J u d g e s ' T e s t i m o n y not I n c l u d e d
A petition for declaratory relief to test the sufficiency of a Judge's

testimony, in a criminal case, to a decree of divorce granted by him
during Japanese occupation, cannot be entertained, not only be-
cause the petition is filed by the private prosecutor and not by the
Fiscal, but also because the only question that may be raised in such
kind of petition is the question of construction or validity arising
34
Samson v. Andal, 89 Phil. 627, July 31, 1951.
35
Magtibay v. Alikpala, 6 S C R A 681.
36
Ollada v. Central Bank, 5 SCRA 297.
37
Shell v. Sipocot, G.R. No. 12680, 20 March 1959; Santos v. Aquino, 94 Phil. 65.
38
Hilado v. De la Costa, 83 Phil. 471; Araneta v. Gatmaitan, 101 Phil. 328.
39
Velasco v. Villegas, G.R. N o . L-24153, Feb. 14, 1983.
243
V O L . III
under the instrument or statute, "the instrument being" a deed,

will, contract or other written instrument. A n y other matter is deemed
40
excluded under the principle of expression unius est exclusio alterius.
k. C o u r t Decisions a r e not I n c l u d e d
A court decision cannot be the subject of declaratory relief for
the simple reason that if a party is not agreeable to a decision either
on question of law or of fact, he may file with the trial court a motion
for reconsideration or a new trial in order that the defect may be
corrected. The same remedy may be pursued by a party with regard
to a decision of the Court of Appeals or of the Supreme Court. A
party may even seek relief from a judgment or order of an inferior
court on the ground of fraud, accident, mistake or excusable negli-
gence if he avails of that remedy within the terms prescribed by
Section 1, Rule 38. T h e fundamental reason w h y the decision cannot
be the subject of declaratory relief is predicated upon the principle of
res judicata which stamps the mark of finality on a case which has
41
been fully and definitely litigated in court.
1. A l i e n Certificate of R e g i s t r a t i o n is n o t a C o n t r a c t
In a case, a person filed a petition for declaratory relief alleging

in substance that he is a Filipino citizen by birth and parentage;
that in 1941, because of "erroneous belief and fear of criminal pros-
ecution," he registered himself with the municipal treasurer of his
town as a Chinese alien, but that notwithstanding said registration
he never intended to give up his Filipino citizenship and that he
continued to hold himself as a Filipino citizen. T h e Court held that
the deed or written instrument, which petitioner claims and be-
lieves to have given rise to his cause of action, is his supposed regis-
tration as an alien filed in the office of the municipal treasurer of
Bacacay in the year 1941. This instrument is not a contract in which
another party or person is involved. It is a unilateral act of the
petitioner himself, not creating any right or obligation on the part of
any other party or on that of the state, and, therefore, no one has
interest therein except himself. A supposed fear in the mind of the
petitioner alone in a proceeding for declaratory relief is not what the
40
L e r u m , et al. v. Cruz, et al., 48 O . G . 1768.
41
Taada v. Aldaya, 52 O . G . 5175.
244
law considers as an actual controversy requires the intervention of

the courts of justice in order that the rights, obligations or liabilities
arising therefrom may be determined. This is especially true where
it appears that before the petitioner filed his petition, nobody ap-
pears to have contested any of the allegations of the petitioner's
complaint. A n d it is not claimed that any official has ever contested
42
his claim to file citizenship or threatened to contest the same.
m. Determination of Hereditary Rights Improper
An action seeking to determine his hereditary rights in the

property of his alleged father and incidentally the recognition of his
status as an illegitimate son cannot be maintained as one for de-
claratory relief because it neither concerns a deed, w i l l , contract or
other written instrument, nor does it affect a statute or ordinance,
the construction or validity of which is involved. N o r is it predicated
on any justiciable controversy, for the alleged right of inheritance
which plaintiff desires to assert has not yet accrued for the simple
43
reason that his alleged father has not yet died.
n. Third Party Complaint Improper
A counterclaim m a y be filed in a petition for declaratory re-

44
lief. But a third-party complaint is inconceivable where the main
45
case is a special civil action for declaratory relief.
There is nothing in the nature of a special civil action for de-

claratory relief that proscribes the filing of a counterclaim based on
the same transaction, deed or contract subject of the complaint. A
special civil action is after all not essentially different from an ordi-
nary civil action, which is generally governed by Rules 1 to 56 of the
Rules of Court, except that the former deals with a special subject
matter which makes necessary some special regulation. But the
identity between their fundamental nature is such that the same
rules governing ordinary civil suits may and do apply to special civil
42
0biles v. Republic of the Philippines, G.R. N o . L-5204, March 27, 1953; Villa-
Abrille v. Republic, 99 Phil. 361; Azajar v. Ardales, 51 O . G . 5640.
43
Edades v. Edades, et al., 52 O . G . 5149.
"Ledesma v. Morales, 87 Phil. 199.
"Commissioner of Custom v. Cloribel, 77 S C R A 459.
245
V O L . III
actions if not inconsistent with or if they may serve to supplement

46
the provisions of the peculiar rules governing special civil actions.
A petition for declaratory relief has likewise been held as im-
proper in the following instances.
1. When the petition is based on the happening of a contin-
47
gent event.
48
2. When petitioner is not the real party-in-interest.
3. W h e r e administrative remedies has not yet been ex-
49
hausted.
0. Other similar remedies governed by R u l e 63 are:

50
1. Reformation of Instrument;
51
2. Actions to Quiet T i t l e ; and
52
3. Petition for Consolidation of Ownership.
Under Republic A c t 7691, the Jurisdiction of Municipal Trial

Court Includes Other Real Actions where the assessed value of real
property does not exceed P20,000.00 or P50,000.00 in M e t r o Manila.
Real Actions are actions affecting title to or possession of real prop-
53
erty, or interest therein. ( O r for partition or condemnation of, or
foreclosure of mortgage on real property) Hence, actions which in-
volve title to, or possession of, real property, or any interest therein
does not exceed twenty thousand pesos or (P20,000.00) or fifty thou-
sand pesos (P50,000.00), in M e t r o Manila, exclusive of interest, dam-
ages or whatever kind, attorney's fees, litigation expenses and costs.
Provided, That in cases of land not declared for taxation purposes,
the value of such property shall be determined by the assessed value
of the adjacent lots.
"Philippine Deposit Insurance Corporation v. Court of Appeals, G.R. N o . 126911,

April 30, 2003, 402 S C R A 194.
47
Jimenez v. Roa, 39 S C R A 329 (1971).
48
Santos v. Aquino, 94 Phil. 65.
49
011ada v. Central Bank, 5 S C R A 297 (1962).
60
Article 1359, N . C . C .
"Article 476, N . C . C .
"Article 1607, N . C . C .
53
Sec. 1, Rule 4.
246
An issue as to the scope of a franchise falls within jurisdiction

5 4
of the C F I .
S E C 2 . Parties. A l l p e r s o n s w h o h a v e o r claim a n y
interest w h i c h w o u l d b e affected b y the d e c l a r a t i o n shall b e
m a d e parties; a n d n o d e c l a r a t i o n shall, except a s o t h e r w i s e
p r o v i d e d i n these R u l e s , p r e j u d i c e the r i g h t s o f p e r s o n s not
p a r t i e s to the action. (2a, R64)
COMMENT
Taken from section 2 of the former Rule. There is no substantial

change.
2. Notes and Cases
a. P u r p o s e T h e reason for the law requiring the joinder

of all necessary parties is that failure to do so would deprive the
declaration of that final and pacifying function the action for de-
claratory relief is calculated to subserve as they would not be bound
1
by the declaration and m a y raise the identical issue.
This section contemplates a situation where there are other

persons who would be affected by the declaration, but were not
impleaded as necessary parties, in which case the declaration shall
not prejudice them. If at all, the case may be dismissed not on the
ground of lack of jurisdiction but for the reason stated in Section 5 of
the same Rule stating that "the Court may refuse to exercise the
power to declare rights and to construe instruments in any case
where a decision would not terminate the uncertainty or controversy
which gave rise to the action, or any case where the declaration or
construction is not necessary and proper at the time under all cir-
cumstances.
M
P h i l . Global Communication, Inc. v. Relova, 100 S C R A 254.
^ e g a l a v. Reyes, 87 Phil. 649.
247
V O L . III
b. Squatters N o t N e c e s s a r y P a r t i e s t o D e c l a r e O r d i -
nance I n v a l i d
Thus in a petition for declaratory relief to invalidate an ordi-
nance declaring squatters as bona fide occupants, the non-inclusion
of the squatters mentioned in the ordinance in question as party-
defendants cannot defeat the jurisdiction of the Court of First In-
stance of Baguio. There is nothing in Section 2 of Rule 64 of the
Rules of Court which says that the non-joinder of persons who have
or claim any interest which would be affected by the declaration is a
jurisdictional defect. Said section merely states that "all persons
shall be made parties who have or claim any interest which would
be affected by the declaration; and no declaration shall, except as
otherwise provided in these rules, prejudice the rights of persons not
parties to the action."
Although it is true that any declaration by the court would

affect the squatters, the latter are not necessary parties because the
question involved is the power of the Municipal Council to enact the
ordinances in question. Whether or not they are impleaded, any
determination of the controversy would be binding upon the squat-
2
ters.
c. Trustee in Will Necessary P a r t y

3
A different situation obtains in the case of Degala v. Reyes.
The Degala case involves the validity of the trust created in the will
of the testator. As trustee of the w i l l , the R o m a n Catholic Church
which would be most vitally affected by the declaration of the nullity
of the will was not brought in as a party. T h e Court, therefore,
refused to make any declaratory judgment on the ground of jurisdic-
tional defect, for there can be no final judgment that could be ren-
dered and the Roman Catholic Church not being bound by the judg-
ment might raise the identical issue, making therefore the declara-
tion a mere exercise in futility.
S E C . 3. Notice on Solicitor General. In a n y action w h i c h

involves the v a l i d i t y of a statute, e x e c u t i v e o r d e r or r e g u l a -
tion, or a n y other g o v e r n m e n t a l r e g u l a t i o n , the Solicitor G e n -
2
Baguio Citizens' Action, Inc. v. The City Council, 121 S C R A 376.
3
Supra.
248
Rule 63 DECLARATORY RELIEF A N D SIMILAR REMEDIES Sees. 3-6
e r a l shall b e notified b y the p a r t y a s s a i l i n g the s a m e a n d

shall b e entitled t o b e h e a r d u p o n s u c h question. (3a, R64)
S E C . 4. Local government ordinances. In a n y action

i n v o l v i n g the v a l i d i t y of a local g o v e r n m e n t o r d i n a n c e , the
c o r r e s p o n d i n g p r o s e c u t o r o r a t t o r n e y o f the local g o v e r n -
m e n t a l u n i t i n v o l v e d shall b e s i m i l a r l y notified a n d entitled
t o b e h e a r d . I f s u c h o r d i n a n c e i s a l l e g e d t o b e unconstitu-
tional, the Solicitor G e n e r a l shall a l s o b e notified a n d enti-
tled t o b e h e a r d . (4a, R64)
S E C . 5. Court action discretionary. E x c e p t in actions

f a l l i n g u n d e r the s e c o n d p a r a g r a p h of Section 1 of this R u l e ,
the c o u r t , motu proprio or u p o n m o t i o n , m a y r e f u s e to exer-
cise the p o w e r t o d e c l a r e r i g h t s a n d t o c o n s t r u e instruments
i n a n y c a s e w h e r e a d e c i s i o n w o u l d not t e r m i n a t e the uncer-
tainty o r c o n t r o v e r s y w h i c h g a v e r i s e t o the action, o r i n a n y
case w h e r e the d e c l a r a t i o n o r c o n s t r u c t i o n i s not n e c e s s a r y
a n d p r o p e r u n d e r the c i r c u m s t a n c e s . (5a, R64)
S E C . 6. Conversion into ordinary action. If b e f o r e the

final t e r m i n a t i o n of the case, a b r e a c h or violation of an
i n s t r u m e n t o r a statute, e x e c u t i v e o r d e r o r r e g u l a t i o n , ordi-
n a n c e , o r a n y o t h e r g o v e r n m e n t a l r e g u l a t i o n s h o u l d take
p l a c e , the action m a y t h e r e u p o n b e c o n v e r t e d into a n o r d i -
n a r y action, a n d the p a r t i e s shall b e a l l o w e d t o f i l e such
p l e a d i n g s a s m a y b e n e c e s s a r y o r p r o p e r . (6a, R64)
COMMENT:
There are no substantial changes in the foregoing Rules mostly
in style.
NOTE:
Under Sec. 6 of Rule 64, the action for declaratory relief may be
converted into an ordinary action and the parties are allowed to file
such pleadings as may be necessary or proper, if before the final
termination of the case "a breach or violation of an ... ordinance,
should take place." W h e r e there is no breach or violation of the
ordinance because the petitioner decided to pay "under protest" the
fees imposed by the ordinance, such payment did not affect the case;
249
Sees. 3-6 REMEDIAL LAW Rale 63
VOL. III
the declaratory relief action was still proper because the applicabil-
ity of the ordinance to future transactions still remained to be re-
solved, although the matter could also be threshed out in an ordi-
1
nary suit for the recovery of taxes paid. In its petition for declara-
tory relief, petitioner-appellee alleged that by reason of the enforce-
ment of the municipal ordinance by respondents it was forced to pay
under protest the fees imposed pursuant to the said ordinance, and
accordingly, one of the reliefs prayed for by the petitioner was that
the respondents be ordered to refund all the amounts it paid to
respondent Municipal Treasurer during the pendency of the case.
The inclusion of said allegation and prayer in the petition was not
objected to by the respondents in their answer. During the trial,
evidence of the payments made by the petitioner was introduced.
Respondents were thus fully aware of the petitioner's claim for re-
fund and of what would happen if the ordinance were to be declared
2
invalid by the court.
Where an action was initiated on a petition for a declaratory

relief ostensibly for a declaration of the rights and obligations of the
parties under the laws and ordinances involved therein or invoked
by them the judgment does not essentially entail an executory proc-
ess since generally, other than a declaration of such rights and du-
ties, other affirmative reliefs, as these are understood in ordinary
civil actions, are not sought by the proponent.
However, the Court has held that although the action is for a
declaratory judgment but the allegations in the complaints are suffi-
cient to make out a case for specific performance or recovery of
property with claims for damages, and the defendants did not raise
an issue in the trial court to challenge the remedy or form of the
action availed of, the court can grant such affirmative relief as may
3
be warranted by the evidence.
1
Shell Co. of the Philippines, Ltd. v. Municipality of Sipocot, 105 Phil. 1063,
March 20,1959 (Unrep.).
2
Matalin Coconut Co., Inc. v. Municipal Council of Malabane. Lanao del Sur,
143 SCRA 404.
3
Adlawan v. Intermediate Appellate Court, 170 SCRA 165, Feb. 9,1989.
250
RULE 64
REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
SECTION 1. Scope. This Rule shall govern the review

of j u d g m e n t s a n d final orders or resolutions of the Commis-
sion on Elections a n d t h e Commission on Audit, (n)
COMMENT:
1. Source of Rule
The Rule is entirely new.
The present Rule implements the constitutional provisions on
Review of Judgments of Constitutional Commissions.
2. N o t e s a n d Cases
a. Discretion of Supreme Court to Review Cases
It is the Supreme Court's prerogative under the law to deter-
mine whether or not it shall consent to exercise its appellate juris-
diction to accept or refuse invocations of that appellate jurisdiction;
it will refuse to accept appeals which are: (1) "without merit, or (2)
prosecuted manifestly for delay," or (3) which raise questions too
unsubstantial to require consideration"; and will grant review "only
when there are special and important reasons therefor." Stated oth-
erwise, it is the burden of every party seeking review of any decision
of the Court of Appeals or other lower tribunal to persuade the
Supreme Court not only of the existence of questions of law fairly
and logically arising therefrom, which he must distinctly set forth in
his petition for review, but also that those questions are substantial
enough to merit consideration, or that there are special and impor-
251
VOL. Ill
tant reasons warranting the review that he seeks. Quite evidently, if

these be not shown prima facie in his petition, with sufficient per-
suasiveness, the Court will be justified in giving the petition short
shrift, in summarily spurning it, as too lacking in merit to require
1
further proceedings."
SEC. 2. Mode of Review. A j u d g m e n t or final order or

resolution of the Commission on Elections a n d t h e Commis-
sion on Audit may be brought by t h e aggrieved party to the
Supreme Court on certiorari under Rule 65, e x c e p t as here-
inafter provided, (n)
COMMENT:
1. Source of Rule
Under the 1987 Constitution, "unless otherwise provided by
this Constitution or by law, any decision, order or ruling of each
Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from the receipt of a copy
1
thereof." A similar provision was found in the 1973 Constitution.
It has been held that: Judgments of the Commission may be
brought to the Supreme Court through certiorari alone, under Rule
65 of the Rules of Court. The Supreme Court pointed out that in
Aratuc, we declared: It is at once evident from these constitutional
and statutory modifications that there is a definite tendency to en-
hance and invigorate the role of the Commission on Elections as the
independent constitutional body charged with the safe guarding of
free, peaceful and honest elections. The framers of the new Constitu-
tion must be presumed to have definite knowledge of what it means
to make the decisions, orders and rulings of the Commission "sub-
ject to review by the Supreme Court." And since instead of maintain-
ing that provision intact, it ordained that the Commission's actuations
be instead "brought to the Supreme Court on certiorari" We cannot
insist that there was no intent to change the nature of the remedy,
'Chua Giok Ong v. Court of Appeals, 149 SCRA115 (1987); Sotto v. COMELEC,
76 Phil. 516 (1946).
^ e c . 7 of Art. DC.
252
Rule 64 REVIEW OF J U D G M E N T S A N D FINAL ORDERS s
OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS '
A N D THE COMMISSION ON AUDIT
considering that the limited scope of certiorari, compared to a

2
view, is well-known in remedial law.
REMEDY AGAINST COA AND COMELEC IS RULE 65
Article IX-A, Section 7 of the Constitution provides that deci-

sions, orders or rulings of the Commission on Audit may be brought
3
to the Supreme Court on certiorari by the aggrieved party. Under
Rule 64, Section 2, 1997 Rules of Civil Procedure, a judgment or
final order of the COA may be brought by an aggrieved party to the
Supreme Court on certiorari under Rule 65. Prior to the 1997 Rules
of Civil Procedure the mode of elevating cases decided by the COA to
the Supreme Court was only by petition for certiorari under Rule 65,
4
as provided by the 1987 Constitution. Hence, under the former rule
a petition for review on certiorari or appeal by certiorari to the
Supreme Court under Rule 44 or 45 of the 1964 Revised Rules of
5
Court is not allowed from any order, ruling or decision of the COA.
Where the principal relief sought by petitioner is predicated
on the certiorari jurisdiction of the Supreme Court as provided in
Section 1, Article XII-C, 1973 Constitution, the Court held it should
be confined to instances of grave abuse of discretion amounting to
patent and substantial denial of due process. Moreover, the legislative
construction of the constitutional provision has narrowed down "the
scope and extent of the inquiry the court is supposed to undertake to
what is strictly the office of certiorari as distinguished from review."
And in Lucman v. Dimaporo, a case decided under the Constitution
of 1935, this Court, speaking through then Chief Justice Concepcion,
ruled that "this Court cannot x x x review rulings or findings of fact
of the Commission on Elections," as there is "no reason to believe
that the framers of our Constitution intended to place the said
2
Dario v. Mison, 176 SCRA 89, August 8,1989; See also Querubin v. The Regional
Cluster, G.R. No. 159299, July 7, 2004.
3
Bulilan v. COA, G.R. No. 130057, December 22, 1998.
4
Originally, Rule 44 of the 1964 Revised Rules of Court governed appeals from
decisions of the General Auditing Office (now COA). SC Circular 1-91, dated February
27,1991, removed the General Auditing Office from the list of quasi-judicial agencies
whose decisions were appealable to the Supreme Court, SC Circular 1-95, dated May
16, 1995, revised Circular 1-91, but did not include COA in the list of the quasi-judi-
cial agencies whose decisions were governed by the mode of appeal prescribed under
the circular.
5
Reyes v. COA, 305 SCRA 512, March 29, 1999.
253
VOL. Ill
Commission created and explicitly made independent by the

Constitution itself on a lower level" than statutory administrative
organs whose factual findings are not "disturbed by courts of justice,
except when there is absolutely or no evidence or no substantial
evidence in support of such findings." Factual matters were deemed
not proper for consideration in proceedings brought either "as an
original action for certiorari or as an appeal by certiorari for the
main issue in certiorari is one of jurisdiction; lack of jurisdiction or
grave abuse of discretion amounting to excess of jurisdiction while
petitions for review for certiorari are limited to the consideration of
6
questions of law." As above pointed out the mode of review of decisions
of the COMELEC is now governed by Rule 64 of the new Rules of
Court which, however, provides that the review may be brought by
the aggrieved party to the Supreme Court on certiorari under Rule
65, except as thereinafter provided.
Limitation
Section 7, Article LX of the 1987 Constitution prescribes the
power of the Supreme Court to review decisions of the COMELEC,
as follows:
Section 7. Each commission shall decide by a majority

vote of all its members any case or matter brought before it
within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or
resolution upon t h e filing of the last pleading, brief, or
memorandum required by the rules of the commission or by
the commission itself. Unless otherwise provided by this
constitution or by law, any decision, order, or ruling of each
commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from receipt of a copy
thereof.
This consitutional provision was interpreted to mean final
orders, rulings and decisions of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers. The decision
must be a final decision or resolution of the COMELEC en banc. The
Supreme Court has no power to review via certiorari an interlocutory
'Padilla v. COMELEC, 137 S C R A 4 2 4 (1985).
254
Rule 64 REVIEW OF J U D G M E N T S A N D FINAL ORDERS
OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
order or even a final resolution of a Division of the COMELEC.

Failure to abide by this procedural requirement constitutes a ground
7
for dismissal of the petition.
Exception
However, this rule is not iron-clad. In ABS-CBN Broadcasting
8
Corp. v. COMELEC, the Court stated
This Court, however, has ruled in the past t h a t this

procedural requirement [of filing a motion for reconsideration]
may be glossed over to prevent a miscarriage of justice, when
the issue involves the principle of social justice or the protection
of labor, when the decision or resolution sought to be set aside
is a nullity, or when the need for the relief is extremely urgent
and certiorari is the only adequate and speedy remedy available.
The Court further pointed out in ABS-CBN that an exception
was warranted under the peculiar circumstances of the case since
there was hardly enough opportunity to move for a reconsideration
and to obtain a swift resolution in time for the May 11,1998 elections.
The same can be said in the present case. The Court ruled that
direct resort to this Court through a special civil action for certiorari
is justified under the circumstances obtaining in the present case
where the main issue to be resolved is whether the COMELEC First
Division acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the status quo ante Order which
effectively overturned the trial court's grant of execution pending
appeal in petitioner's favor. This issue is not mooted even if the next
elections are just a few weeks away. The holding of periodic elections
is a basic feature of our democratic government. To set aside the
resolution of the issue now will only postpone a task that could well
9
crop up again in future elections.
SEC. 3. Time to file petition. The petition shall be filed

w i t h i n thirty (30) days from notice of the judgment or final
order or resolution sought to be reviewed. The filing of a
7
Ambil, Jr. v. COMELEC, 344 S C R A 3 5 8 (2000).
8
3 6 0 Phil. 780.
9
Repol v. COMELEC, 428 SCRA 321 (2004).
255
VOL. Ill
motion for n e w trial or reconsideration of said judgment or

final order or resolution, if allowed under the procedural
rules of the commission concerned, shall interrupt the pe-
riod herein fixed. If the motion is denied, the aggrieved party
may file the petition within the remaining period, but w h i c h
shall not be less than five (5) days in any event, reckoned
from notice of denial, (n)
COMMENT:
Unlike CERTIORARI UNDER Rule 65 WHERE THE PERIOD
TO FILE THE PETITION IS SIXTY (60) days, the petition herein
shall be filed within thirty (30) days from notice of the judgment or
final order or resolution sought to be reviewed.
The filing of a motion for new trial or reconsideration of said
judgment or final order or resolution, if allowed under the proce-
dural rules of the commission concerned, shall interrupt the period
herein fixed. If the motion is denied, the aggrieved party may file
the petition within the remaining period, but which shall not be less
than five (5) days in any event, reckoned from notice of denial. This
is in contrast to a petition for review under Rules 42 and 43 and an
appeal on certiorari under Rule 45, where the period to appeal is
counted all over again from receipt of the order or resolution deny-
ing the motion for reconsideration.
SEC. 4. Docket and other lawful fees. U p o n the filing

of the petition, the petitioner shall pay to t h e Clerk of Court
the docket and other lawful fees a n d deposit t h e a m o u n t of
P500.00 for costs, (n)
SEC. 5. Form and contents of petition. The petition
shall be verified and filed in e i g h t e e n (18) legible copies. The
petition shall n a m e the aggrieved party as petitioner a n d
shall join as respondents the Commission c o n c e r n e d a n d t h e
person or persons interested in s u s t a i n i n g t h e judgment, fi-
nal order or resolution a quo. The petition shall state the
facts with certainty, present clearly t h e i s s u e s involved, set
forth the grounds and brief a r g u m e n t s relied u p o n for re-
view, and pray for judgment annulling or modifying the ques-
tioned judgment, final order or resolution. Findings of fact
256
Rule 64 REVIEW OF J U D G M E N T S A N D FINAL ORDERS
OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
of t h e Commission supported by substantial evidence shall

be final a n d non-reviewable.
The petition shall be a c c o m p a n i e d by a clearly legible
duplicate original or certified true copy of the judgment,
final order or resolution subject thereof, together w i t h certi-
fied true c o p i e s of s u c h material portions of the record as are
referred to t h e r e i n a n d other d o c u m e n t s relevant and perti-
n e n t thereto. The requisite n u m b e r of copies of the petition
shall c o n t a i n plain c o p i e s of all d o c u m e n t s attached to the
original copy of said petition.
The petition shall state t h e specific material dates show-
ing that it w a s filed w i t h i n t h e period fixed herein, and shall
contain a s w o r n certification against forum shopping as pro-
v i d e d in t h e last paragraph of Section 3, Rule 46.
The p e t i t i o n shall further be a c c o m p a n i e d by proof of
service of a copy thereof on t h e Commission c o n c e r n e d and
on t h e adverse party, a n d of t h e timely p a y m e n t of docket
a n d other lawful fees.
The failure of petitioner to comply w i t h any of the fore-
g o i n g r e q u i r e m e n t s shall be sufficient ground for the dis-
missal of t h e petition, (n)
COMMENT:
This being a special civil action, not an appeal, the commission
1
concerned is joined as a party respondent.
SEC. 6. Order to comment. If the Supreme Court finds

the petition sufficient in form and substance, it shall order
the respondents to file their comments on the petition within
ten (10) days from notice thereof; otherwise, the Court may
dismiss the petition outright. The Court may also dismiss the
petition if it w a s filed manifestly for delay, or the questions
raised are too unsubstantial to warrant further proceedings,
(n)
^ e e also Sec. 5 of Rule 65. (Feria)
257
VOL. Ill
SEC. 7. Comments of respondents. The comments of

the respondents shall be filed in eighteen (18) legible copies.
The original shall be accompanied by certified true copies of
such material portions of the record as are referred to therein
together with other supporting papers. The requisite number
of copies of the comments shall contain plain copies of all
documents attached to the original and a copy thereof shall
be served on the petitioner.
No other pleading m a y be filed by any party u n l e s s re-
quired or allowed by the Court, (n)
SEC. 8. Effect of filing. - The filing of a petition for
certiorari shall not stay the e x e c u t i o n of t h e j u d g m e n t or
final order or resolution sought to be reviewed, u n l e s s t h e
Supreme Court shall direct o t h e r w i s e u p o n s u c h terms as it
may deem just, (n)
SEC. 9. Submission for decision. U n l e s s t h e Court sets
the case for oral argument, or requires t h e parties to submit
memoranda, the case shall be d e e m e d s u b m i t t e d for d e c i s i o n
upon the filing of the c o m m e n t s on the petition, or of s u c h
other pleadings or papers as m a y be required or allowed, or
the expiration of the period to do so. (n)
258
RULE 65
CERTIORARI, PROHIBITION
AND MANDAMUS
SECTION 1. Petition for certiorari. When any tribu-

nal, board or officer exercising judicial or quasi-judicial func-
tions h a s a c t e d w i t h o u t or in e x c e s s of its or his jurisdiction,
or w i t h grave a b u s e of discretion a m o u n t i n g to lack or ex-
c e s s of jurisdiction, a n d there is no appeal, nor any plain,
speedy, a n d a d e q u a t e r e m e d y in t h e ordinary course of law, a
p e r s o n a g g r i e v e d t h e r e b y m a y file a verified petition in the
proper court, alleging t h e facts w i t h certainty and praying
that j u d g m e n t be r e n d e r e d a n n u l l i n g or modifying the pro-
c e e d i n g s of s u c h tribunal, board or officer, and granting such
incidental reliefs as l a w a n d j u s t i c e m a y require.
The petition shall be a c c o m p a n i e d by a certified true
copy of t h e judgment, order or resolution subject thereof,
copies of all p l e a d i n g s a n d d o c u m e n t s relevant and perti-
n e n t thereto, a n d a s w o r n certification of non-forum shop-
ping as provided in t h e third paragraph of Section 3, Rule 46.
(la)
COMMENT:
1. Changes in Rule
The present Rule expressly included not only any tribunal,
board, or officer exercising judicial functions, but also quasi-judicial
functions, and not only praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or officer, but
also granting such incidental reliefs as law and justice may require.
Justice Feria gives an example of incidental relief that may be
granted is when the Court grants a petition of certiorari or prohibi-
259
tion disputing an order denying a motion to dismiss, it may order
1
the dismissal of the complaint.
Copies of the petition for certiorari, prohibition and mandamus
are required to be served by the petitioner on the tribunal, corpora-
2
tion, board or officer concerned and on the adverse party.
A sworn certification of non-forum shopping as provided in the
last paragraph of Section 3, Rule 46 forms part of the requirements.
2. Notes and Cases

a. Certiorari Defined
A certiorari is a writ issued from a superior court to any infe-
rior court, board or officer, exercising judicial or quasi-judicial func-
tions whereby the record of a particular case is ordered to be el-
3
evated up for review and correction in matters of law.
The writ of certiorari dealt with in Rule 65 of the Rules of Court
is a prerogative writ, never demandable as a matter of right, "never
4
issued except in the exercise of judicial discretion."
b. The R e m e d y of Certiorari
1. It has been said that a wide breadth of discretion is granted
a court of justice in certiorari proceedings. The cases in which certio-
rari will issue cannot be defined, because to do so would be to de-
stroy its comprehensiveness and usefulness. So wide is the discre-
tion of the court that authority is not wanting to show that certiorari
is more discretionary than either prohibition or mandamus. In the
exercise of our superintending control over other courts, we are to be
guided by all the circumstances of each particular case "as the ends
of justice may require." So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do substantial jus-
5
tice.
l
Cf. Newsweek, Inc. v. IAC, 142 SCRA 171.
2
See Sec. 3 of Rule 46. (Feria).
3
Meralco Securities Industries Corp. v. Central Board of A s s e s s m e n t Appeals,
114 SCRA 260.
4
N u n a l v. Commission on Audit, 169 SCRA 356, Jan. 24, 1989.
5
Gutib v. CA, 312 SCRA 365 (1999), cited in 342 SCRA 372, October 9, 2000.
260
Rule 65 CERTIORARI, PROHIBITION A N D MANDAMUS Sec. 1
2. The following are the requisites of a petition for

the i s s u a n c e of a writ of certiorari:
a. That it is directed against a tribunal, board or officer
6
exercising judicial or quasi-judicial functions.
b. That such tribunal, board or officer has acted without or
in excess of jurisdiction or with grave abuse of discretion.
c. That there is no appeal nor plain, speedy, and adequate
7
remedy in the ordinary course of law.
d. That the petition is verified and must allege facts with
certainty.
e. The petition must be accompanied with certified true cop-
ies of the judgment or order sought to be annulled and copies of all
8
pleadings and documents relevant and pertinent thereto.
3. Circular 28-91, laid d o w n additional requirements

for t h e filing of a p e t i t i o n for certiorari as follows:
The attention of the Court has been called to the filing of multi-
ple petitions and complaints involving the same issues in the Su-
preme Court, the Court of Appeals or other tribunals or agencies,
with the result that said courts, tribunals or agencies have to re-
solve the same issues.
(a) To avoid the foregoing, in every petition filed with the
Supreme Court or the Court of Appeals, the petitioner, aside from
complying with pertinent provisions of the Rules of Court and exist-
ing circulars must certify under oath to all of the following facts or
undertakings: (a) he has not theretofore commenced any other ac-
tions or proceeding involving the same issues in the Supreme Court,
the Court of Appeals, or any other tribunal or agency; (b) to the best
of his knowledge, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or different Divisions thereof,
or any other tribunal or agency; (c) if there is such other action or
proceeding pending, he must state the status of the same; and (d) if
he should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
6
Philnabank Employees Association v. Estanislao, 227 SCRA 804 (1993).
7
Maritime Company of the Phils, v. Paredes, 19 SCRA 569, 578.
8
Rule 65, Section 1.
261
VOL. Ill
Appeals, or different Divisions thereof, or any other tribunal or agency,

he undertakes to promptly inform the aforesaid courts and such
other tribunal or agency of that fact within five (5) days therefrom.
(b) Any violation of this revised Circular will entail the fol-
lowing sanctions: (a) it shall be a cause for the summary dismissal of
the multiple petitions or complaints; (b) any willful and deliberate
forum shopping by any party and his counsel through the filing of
multiple petitions or complaints to ensure favorable action shall
constitute direct contempt of court; and (c) the submission of a false
certification shall constitute indirect contempt of court, without preju-
dice to the filing of criminal action against the guilty party and the
institution of disciplinary proceedings against the counsel.
The Revised Circular shall take effect on April 1,1994.
4. Failure to comply w i t h formal requisite is fatal

A petition is fatally defective if it fails to comply with Section 1
of Rule 65 or to allege facts with certainty, or to attach certified true
9
copies of the order sought to be annulled. Certiorari being an
extraordinary remedy, the party who seeks to avail of the same must
10
strictly observe the rules laid down by law.
The omission, however of the phrase "grave abuse of discre-
tion" or "without or in excess of jurisdiction" is not fatal. Such allega-
tions are mere conclusions of law which may be deduced from the
11
facts averred even when not specifically pleaded.
12
The verification by a lawyer is sufficient.
5. When Verification Not An Absolute N e c e s s i t y a n d

May be Waived; Absence of Verification Not Jurisdictional
Defect
While Sec. 1, Rule 65 of Rules of Court, requires that the peti-
tion for certiorari be verified, this is not absolute necessity where the
9
Iligan Concrete Products v. Magadan, 157 SCRA 525 (1988); See also Asuncion
v. CA, 166 SCRA 55 (1988); Catuira v. Court of Appeals, 172 SCRA 136 (1989); See
Section 3, Rule 46.
10
S e a s t a r Marine Services, Inc. v. Bul-An, Jr., G.R. No. 142609, November 25,
2004.
u
C a b u t i n v. Amacio and Judge Polo, 170 SCRA 211, Feb. 28, 1989.
12
U y v. WCC, 97 SCRA 26 (1980).
262
material facts alleged are a matter of record, and the questions

13
raised are mainly of law. Many authorities consider the absence of
verification or mere formal, not jurisdictional defect, the absence of
which does not of itself justify a court in refusing to allow and act in
14
the case.
Said the Supreme Court; first, respondents claim that the peti-
tion, not being verified, is fatally defective. We do not think so. It is
true that Rule 65, Section 1 of the Rules of Court, requires that the
petition for certiorari be verified, the apparent object thereof of be-
ing to insure good faith in the averments of the petition. Where,
however, the material facts alleged are a matter of record in the
court below, consisting of pleadings filed or proceedings taken therein,
and the questions raised are mainly of law, a verification as to the
15
truth of said facts is not an absolute necessity and may be waived,
as this Court had done in the present petition. In fact, many au-
thorities consider the absence of verification a mere formal, not
jurisdictional, defect the absence of which does not of itself justify a
16
court in refusing to allow and act in the case.
6. While section 1 requires that the petition must accompa-
nied with certified true copies of the judgment or order sought to be
annulled and copies of all pleadings and documents relevant and
17
pertinent thereto, Section 3 of Rule 46 allows the petition to be
accompanied by a clearly legible duplicate original or certified true
copy of the judgment, order, resolution or ruling subject thereof.
18
This Rule is also applicable to the Supreme Court. A xerox copy of
the certified true copy is not sufficient.
The stamp marked: "Original signed" without dry seal or any
other official indication of the authenticity and completeness of such
copy is insufficient. But even if the resolution denying the motion for
reconsideration is not a duplicate original there is substantial com-
pliance under the principle of liberality of pleadings where the as-
13
4 2 Am. Jur. Sec. 42, p. 177.
14
7 1 C.J.S., 744-745.
15
4 2 Am. Jur. Sec. 42, p. 177.
16
7 1 C.J.S. 744-745; Phil. Bank of Commerce v. Hon. Macadaeg, et al., 109 Phil.
981, 986.
17
Rule 65, Section 1.
18
Sec. 2, Rule 56; Republic v. Carmel Development, Inc., 377 SCRA 459 (2002).
263
VOL. Ill
19
sailed order is a duplicate original. However, a certified xerox copy
20
instead of a certificate true copy is substantial compliance.
Certiorari as a special civil action can be availed of only if there
is a concurrence of the essential requisites, to wit: (a) the tribunal,
board or officer exercising judicial functions has acted without or in
excess of jurisdiction or with grave abuse of discretion amounting to
lack or in excess of jurisdiction, and (b) there is no appeal, or any
plain, speedy and adequate remedy in the ordinary course of law for
the purpose of annulling or modifying the proceeding. There must be
a capricious, arbitrary and whimsical exercise of power for it to pros-
per.
TD question the jurisdiction of the lower court or the agency
exercising judicial or quasi-judicial functions, the remedy is a spe-
cial civil action for certiorari under Rule 65 of the Rules of Court.
The petitioner in such cases must clearly show that the public re-
spondent acted without jurisdiction or with grave abuse of discre-
tion amounting to lack or excess jurisdiction. Grave abuse of discre-
tion defies exact definition but generally refers to "capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdic-
tion." The abuse of discretion must be patent and gross as to amount
to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of
21
passion and hostility.
7. Meaning of e x e r c i s i n g judicial functions

A body or officer may be said to be exercising judicial functions
when such officer or body is clothed with authority and undertakes
to determine what the law is and what the legal rights of the parties
22
are with respect to the matter in controversy.
19
Republic v. Carmel Development, Inc., supra.
20
Quintano v. NLRC, G.R. No. 144517, December 13, 2004, 446 SCRA 193. See
also Section 3, Rule 46.
21
Domalanta, et al. v. COMELEC, 334 SCRA 555, June 29, 2000; See also Lee v.
People, G.R. No. 159288, Oct. 19, 2004, 440 SCRA 662; Bristol Myers Squibb (Phils.),
Inc. v. Viloria, G.R. No. 148516, September 27, 2004.
22
3 MORAN 162, 163, 1980 Ed.; Angara v. Fedman Development Corp., G.R. No.
156822, Oct. 18, 2004, 440 SCRA 467.
264
8. Certiorari is available against administrative bod-

ies exercising quasi-judicial functions
The rule is that as to administrative agencies exercising quasi-
judicial power there is an underlying power in the courts to scruti-
nize the acts of such agencies on questions of law and jurisdiction
23
even though no right of review is given by the statue.
The purpose of judicial review is to keep the administrative
agency within its jurisdiction and protect substantial rights of par-
24
ties affected by its decisions." The review is a part of the system of
checks and balances which is a limitation on the separation of pow-
ers and which forestalls arbitrary and unjust adjudications.
Judicial review of the decision of an official or administrative
agency exercising quasi-judicial functions is proper in cases of lack
of jurisdiction, error of law, grave abuse of discretion, fraud or collu-
sion or in case the administrative decision is corrupt, arbitrary or
25
capricious. Or against order of the Securities and Exchange
26
Commission.
A Presidential Decree may be properly struck down by a writ of
certiorari, where it was done and issued in the performance of what
in essence is a judicial function, or an exercise of jurisdiction, and is
shown t h a t the act was done without or in excess of jurisdiction or
27
with grave abuse of discretion.
E.g., Presidential Decree No. 293 invalidating a torrens title
upon a finding that there was failure to complete payment was
28
declared as unconstitutional in a petition for certiorari.
Thus, certiorari will not issue against Department secretaries
where they did not act in any judicial or quasi-judicial capacity but
23
7 3 C.J.S. 506, Note 56.
24
7 3 C.J.S. 507, Sec. 165.
25
Mafinco Trading Corporation v. Ople, 70 SCRA 1 3 9 , 1 5 8 , March 25,1976; San
Miguel Corporation v. Secretary of Labor, 64 SCRA 5 6 , 6 0 , May 16,1975; Mun. Coun-
cil of Lemery v. Prov. Board of Batangas, 56 Phil. 260, 268; Meralco Securities Indus-
trial Corp. v. Central Board of Assessment Appeals, 114 SCRA 260; See also Advincula-
Velasquez v. Court of Appeals, G.R. No. 111387, June 8, 2004, 431 SCRA 165, citing
Fortich v. Corona, 289 SCRA 624 (1998). Certiorari as proper remedy against DARAB.
26
F r e e m a n v. SEC, 233 SCRA 735, July 7, 1994.
"Tuazon v. Register of Deeds, 157 SCRA 613, Jan. 29, 1988.
w
Ibid.
265
VOL. Ill
merely promulgated the questioned rule in accordance with the man-

29
date of the law.
9. Grounds for Issuance
Certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion. "Without jurisdiction"
means that the court acted with absolute want of jurisdiction. There
is "excess of jurisdiction" where the court has jurisdiction but has
30
transcended the same or acted without any statutory authority.
"Grave abuse of discretion" implies such capricious and whimsical
31
exercise of judgment as is equivalent to lack of jurisdiction or, in
other words, where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in con-
32
templation of law.
10. Presumption of Judicial Discretion

The exercise of judicial discretion is, however, presumed to be
performed in accordance with the tenets of justice and fair play and
33
it is incumbent upon petitioners as actors to offset this presumption.
The allegation of grave abuse of discretion must be proved, or at
34
least shown prima facie, to justify procedure.
11. Grave Abuse of Discretion

An act of a court or tribunal may only be considered as commit-
ted in grave abuse of discretion when the same was performed in a
capricious or whimsical exercise of judgment which is equivalent to
29
Philnabank Employees Association v. Estanislao, 227 SCRA 804 (1993).
30
L e u n g Ben v. O'Brien, 38 Phil. 182; Salvador Campos y Cia v. del Rosario, 41
Phil. 45.
31
Abad Santos v. Province of Tarlac, 38 Off. Gaz., 830.
32
Tavera-Luna v. Nable, 67 Phil. 340; Alafriz v. Nable, 72 Phil. 278; Franklin
Baker Company of the Phils, v. Trajano, 157 SCRA 416, 4 2 3 (1988); Litton Mills, Inc.
v. Galleon Trader, Inc., 163 SCRA 489 (1988); Filinvest Credit Corp. v. Intermediate
Appellate Court, 166 SCRA 155 (1988); Gamboa v. Judge Alfredo Cruz, G.R. No. 56291,
June 2 7 , 1 9 8 8 , 1 6 2 SCRA 642; Meralco v. Barlis, 433 SCRA 11.
33
Philippine National Bank v. Philippine Milling, et al., 26 SCRA 212.
34
Tan v. Intermediate Appellate Court, 164 SCRA 130 (1988); Purefoods Corp. v.
NLRC, 171 SCRA 415 (1989); Vide Commission of Internal Revenue v. CA, 257 SCRA
200.
266
lack of jurisdiction. The abuse of discretion must be so patent and

gross as to amount to an evasion of positive duty or to a virtual
refusal to perform a duty enjoined by law, or to act at all in contem-
plation of law, as where the power is exercised in an arbitrary and
35
despotic manner by reason of passion or personal hostility.
12. Meaning of Adequate R e m e d y

An adequate remedy, has been defined as "a remedy which is
equally beneficial, speedy and sufficient, not merely a remedy which
at sometime in the future will bring about a revival of the judgment
of the lower court complained of in the Certiorari proceeding, but a
remedy which will promptly relieve the petitioner from the injurious
36
effects of that judgment and the acts of the inferior court or tribunal."
An error of judgment committed by a court in the exercise of its
legitimate jurisdiction is not the same as "grave abuse of discretion."
An abuse of discretion is not sufficient by itself to justify the issu-
ance of a writ of certiorari. The abuse of discretion must be grave
and patent, and it must be shown that the discretion was exercised
37
arbitrarily or despotically.
For certiorari to lie, there must be a capricious, arbitrary and
whimsical exercise of power, the very antithesis of the judicial pre-
rogative in accordance with centuries of both civil law and common
38
law traditions.
35
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, 170 SCRA
246, 13 Feb. 1989; Lalican v. Vergara, 276 SCRA 518, July 3 1 , 1997; Manila Electric
Company v. Barlis, G.R. No. 114321, June 29, 2004, 433 SCRA 11; See also Freedom
from Debt Coalition v. Energy Regulations Commission, 432 SCRA 136 (2004) holding
that there is also grave abuse of discretion w h e n an act is contrary to the contribution,
to law or jurisprudence. See also Olanolan v. COMELEC, G.R. No. 165491, March 31,
2005, 454 SCRA 807.
36
Silvestre v. Torres, 57 Phil. 885, 11 C.J., p. 113; Pioneer Insurance Surety
Corp. v. Hontanosas, 78 SCRA 466.
37
Soriano v. Atienza, 171 SCRA 284 (1989); Gold City Integrated Port Services,
Inc. v. Intermediate Appellate Court, 171 SCRA 579 (1989).
38
Purefoods Corporation v. National Labor Relations Commissions, 171 SCRA
415 (1989); Lalican v. Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518. Mere
abuse of discretion is not enough (The Hongkong Shanghai Banking Corporation
Employees Union v. National Labor Relations Commission, G.R. No. 113541, Novem-
ber 22, 2001, 370 SCRA 193; Cantoria v. Commission on Elections, G.R. No. 162035,
November 26, 2004, 444 SCRA 538; Meralco v. Barlis, supra). Certiorari being an
equitable remedy will not issue where the petitioner is in bad faith. (Punongbayan v.
Punongbayan, G.R. No. 156842, Dec. 10, 2004, 446 SCRA 100).
267
VOL. Ill
13. Distinction b e t w e e n an appeal by certiorari and

special civil action for certiorari
The provisions of the Rules of Court permit an aggrieved party,
in the general types of cases, to take cause and apply for relief to the
appellate courts by way of either of two distinctly different and
dissimilar modes through the broad process of appeal or the lim-
ited special civil action of certiorari. An appeal brings up for review
errors of judgment committed by the court in the exercise of its
jurisdiction amounting to nothing more than an error of judgment.
On the other hand, the writ of certiorari issues for the correction of
errors of jurisdiction only or grave abuse of discretion amounting to
lack or excess of jurisdiction. The writ of certiorari "cannot legally be
used for any other purpose." In terms of its function, the writ of
certiorari serves "to keep an inferior court within the bounds of its
jurisdiction or to prevent it from committing such a grave abuse of
discretion amounting to excess of jurisdiction" or to relieve parties
from arbitrary acts of courts acts which courts have no power or
39
authority in law to perform.
There are, settled distinctions between a petition for review as
a mode of appeal and a special civil action for certiorari, thus:
a. In appeal by certiorari, the petition is based on questions
of law which the appellant desires the appellate court to resolve. In
certiorari as an original action, the petition raises the issue as to
whether the lower court acted without or in excess of jurisdiction or
with grave abuse of discretion.
b. Certiorari, as a mode of appeal, involves the review of the
judgment, award or final order on the merits. The original action for
certiorari may be directed against an interlocutory order of the court
prior to appeal from the judgment or where there is no appeal or any
other plain, speedy or adequate remedy.
c. Appeal by certiorari must be made within the reglementary
period for appeal. An original action for certiorari may be filed not
later than sixty (60) days from notice of the judgment, order or
resolution sought to be assailed.
'Silverio v. CA, 141 SCRA 527.
268
d. Appeal by certiorari stays the judgment, award or order

appealed from. An original action for certiorari, unless a writ of
preliminary injunction or a temporary restraining order shall have
been issued, does not stay the challenged proceeding.
e. In appeal by certiorari, the petitioner and respondent are
the original parties to the action, and the lower court or quasi-
judicial agency is not to be impleaded. In certiorari as an original
action, the parties are the aggrieved party against the lower court or
quasi-judicial agency and the prevailing parties, who thereby re-
spectively become the petitioner and respondents.
f. In certiorari for purposes of appeal, the prior filing of a
40
motion for reconsideration is not required; while in certiorari as an
41
original action, a motion for reconsideration is a condition precedent,
subject to certain exceptions.
g. In appeal by certiorari, the appellate court is in the exer-
cise of its appellate jurisdiction and power of review, while in certio-
rari as an original action, the higher court exercises original juris-
diction under its power of control and supervision over the proceed-
42
ings of lower courts.
The original jurisdiction of the Court of Appeals over special
civil actions for, inter alia, certiorari, is vested upon it in Section 9(1)
of B.P. Big. 129. This jurisdiction is concurrent with the Supreme
43 44
Court and the Regional Trial Court.
It is settled that a special civil action for certiorari will not lie
45
as a substitute for the lost remedy of appeal.
In a case, the petition alleges that the Court of Appeals acted
whimsically, capriciously and arbitrarily amounting to lack or ex-
cess of jurisdiction in deciding that petitioner's complaint was fa-
40
S e c . 1, Rule 45.
41
Villa Rey Transit v. Bello, 7 SCRA 735, April 23, 1963.
42
F L O R E N Z D. REGALADO, REMEDIAL LAW COMPENDIUM, 543-544 (6th Ed., 1977).
43
Section 5(1), Article VIII, Constitution; Section 17, Judiciary Act of 1948, as
amended.
44
Section 21(1), B.P. Big. 129.
45
Vda. De Espina v. Abaya, 196 SCRA 312, 321 (1991); Sy v. Romero, 214 SCRA
187, 193 (1992); Hipolito v. Court of Appeals, 230 SCRA 191, 204 (1994); Fajardo v.
Bautista, 232 SCRA 291, 298 (1994); De la Paz v. Panis, 245 SCRA 242, 250 (1995);
Paat v. Hon. Court of Appeals, 282 SCRA 448, G.R. No. 126560, Dec. 4, 1997.
269
VOL. Ill
tally defective for failing to alleged its duly authorized representa-

tive or resident agent in the Philippines. Petitioner argues that
there is no law, substantive or procedural, that requires a foreign
corporation engaged only in an isolated transaction to appoint a
duly authorized representative or a resident agent in the Philip-
pines before it can sue locally.
The Court held that the proper remedy available to petitioner
from a decision of the Court of Appeals is a petition for review on
certiorari under Rule 45 of the Rules of Court, not a petition for
certiorari under Rule 65 of the Rules of Court. Mere errors of judg-
ment cannot be the proper subject of a special civil action for certio-
rari. Where the issue or question involved affects the wisdom or
legal soundness of the decision not the jurisdiction of the court to
render said decision the same is beyond the province of a special
civil action for certiorari. Erroneous findings and conclusions do not
render the appellate court vulnerable to the corrective writ of certio-
rari. For where the court has jurisdiction over the case, even if its
findings are not correct, they would, at most, constitute errors of law
46
and not abuse of discretion correctible by certiorari.
13.a Jurisdiction d i s t i n g u i s h e d from e x e r c i s e of juris-

diction
In contemplating a petition for certiorari based on jurisdic-
tional issues, one should distinguish between jurisdiction and the
exercise of jurisdiction. While jurisdiction is the authority to hear
and determine a cause and the exercise of t h a t jurisdiction is the
decision on all other questions arising in the case, what certiorari
should present is an error in jurisdiction and not an error in the
exercise thereof. In this regard, the errors which the court may
commit in the exercise of its jurisdiction are mere errors of judgment
which are reviewable by appeal. Thus, appeal and not certiorari is
the proper remedy for correcting any error committed by a court as
to the competency of a witness or for denying a motion to quash, or
for setting aside an order for dismissal, unless the action can be
shown to be performed in an arbitrary or despotic manner by reason
of passion or personal hostility.
" N e w York Marine Managers, Inc. v. Court of Appeals, 249 SCRA 416, citing
Planters Products, Inc. v. CA, 193 SCRA 5 6 3 , 6 Feb. 1991. See, however, Note 38, infra
discussions under Rule 45, Vol. II, Herrera.
270
If the court has jurisdiction over the subject matter and of the
person, its rulings upon all questions involved in the case are within
its jurisdiction. However irregular or erroneous they may be, they
cannot be corrected by certiorari. They must be corrected by appeal
47
from the final decision.
Errors of jurisdiction may be reviewed by certiorari, while er-
48
rors of judgment are reviewed by appeal.
Jurisdiction, once acquired, is not lost by any error in the exer-
cise thereof t h a t might subsequently be committed by the court.
Where there is jurisdiction over the person and the subject matter,
the decision of all other questions arising in the case is but an
exercise of t h a t jurisdiction. And when a court exercises its jurisdic-
tion, an error committed while engaged in that exercise does not
deprive it of the jurisdiction being exercised when the error is com-
mitted. If it did, every error committed by a court would deprive it of
jurisdiction and every erroneous judgment would be a void judg-
ment. This, of course, cannot be allowed. The administration of jus-
tice would not survive such a rule. Moreover, any error that the
Court may commit in the exercise of its jurisdiction, being merely an
error of judgment, is reviewable only by appeal, not by the special
49
civil action of certiorari or prohibition.
14. Appeal is Ordinary R e m e d y

50
In Mercado v. Court of Appeals, the petitioners lost their right
to appeal by failing to avail of it seasonably. To remedy that loss,
they have resorted to the extraordinary remedy of certiorari, as a
mode of obtaining reversal of the judgment from which they failed to
appeal. This cannot be done. The judgment was not in any sense
null and void ab initio, incapable of producing any legal effects what-
ever, which could be resisted at any time and in any court it was
47
Herrera v. Barretto and J. Joaquin, 25 Phil. 245; Arcaya v. Teleron, 57 SCRA
363; Manila Electric Company v. Barlis, G.R. No. 1114231, June 29, 2004, 433 SCRA
11.
48
N o c o n v. Geronimo, 101 Phil. 735; People v. Court of Appeals, 423 SCRA 605,
February 24, 2004.
48
Mercado v. Court of Appeals, 162 SCRA 75 (1988); Vide Ramnani v. Court of
Appeals, 221 SCRA 582, quoted in Lalican v. Vergara, G.R. No. 108619, July 3 1 , 1 9 9 7 ,
276 SCRA 518.
^Supra; See also Civil Service Commission v. Asensi, 433 SCRA 342 (2004).
271
VOL. Ill
attempted. It was a judgment which might and probably did suffer

from some substantial error in procedure or in findings of fact or of
law, and could on that account have been reversed or modified on
appeal. But since it was not appealed, it became final and has thus
gone beyond the reach of any court to modify in any substantive
aspect. The remedy to obtain a reversal or modification of the judg-
ment on the merits is appeal. This is true even if the error, or one of
the errors, ascribed to the Court rendering the judgment is its lack
of jurisdiction over the subject matter, or the exercise of power in
excess thereof, or grave abuse of discretion in the findings of fact or
of law set out in its decision. The existence and availability of the
right of appeal proscribes a resort to certiorari, because one of the
requisites for availment of the latter remedy is precisely that, "there
should be no appeal." There may, to be sure, be instances when
certiorari may exceptionally be permitted in lieu of appeal, as when
their appeal would be inadequate, olow, insufficient, and will not
promptly relieve a party from the injurious effect of the judgment
complained of, or to avoid future litigations, none of which situa-
tions obtains in the case at bar. And certain it is t h a t the special civil
action of certiorari cannot be a substitute for appeal, specially where
the right to appeal has been lost through a party's fault or inexcus-
51
able negligence.
15. Nature of Questions Immaterial

The nature of the questions intended to be raised on appeal is
of no consequence. It may well be t h a t those questions will treat
exclusively of whether or not the judgment or final order was ren-
dered without or in excess of jurisdiction, or with grave abuse of
discretion (which questions are the peculiar targets of the extraordi-
nary writ of certiorari). This is immaterial. The remedy, to repeat, is
appeal, not certiorari as a special civil action. This is specially true if
other errors of facts or of law are, in addition, intended to be submit-
ted in the appeal. If the situation presents itself in an inferior court,
the remedy is appeal to the Regional Trial Court, not the filing with
that Court of special civil action of certiorari. If the situation devel-
ops in a Regional Trial Court (Court of First Instance), the remedy is
61
Mercado v. Court of Appeals, supra. See also Mercado-Fehr v. Fehr, 414 SCRA
288, October 2 3 , 2 0 0 3 ; See also Chua v. Santos, G.R. No. 132467, Oct. 1 8 , 2 0 0 4 ; Angara
v. Fedman Development Corporation, G.R. No. 156822, Oct. 18, 2004, 440 SCRA 467.
272
Rule 65 CERTIORARI, PROHIBITION A N D MANDAMUS
an appeal to the Supreme Court by petition for review on certiorari

"filed and served in the form required for petitions for review on
certiorari of decisions of the Court of Appeals," i.e., in accordance
52
with Rule 45 of the Rules.
16. Antithetic Character of R e m e d i e s

The antithetic character of the remedies is expressed in Sec-
tion 1 of Rule 65. The provision clearly and explicitly declares the
rule to be t h a t a special civil action of certiorari is proper only if
"there is no appeal, nor any plain, speedy and adequate remedy in
the ordinary course of law." And the rule has been consistently ap-
plied in numerous cases, saving only those rare instances where
appeal is satisfactorily shown to be an inadequate remedy under the
53
circumstances.
Thus, in certain exception cases, where the rigid application of
such rule will result in a manifest failure or miscarriage of justice,
the provisions of the Rules of Court which are technical rules may be
relaxed. Certiorari has been deemed to be justified, for instance, in
order to prevent irreparable damage and injury to a party where the
trial judge has capriciously and whimsically exercised his judgment,
or where there may be danger of clear failure of justice, or where an
ordinary appeal would simply be inadequate to relieve a party from
54
the injurious effects of the judgment complained of.
Thus, while the questioned Order which pertained to the divi-
sion and distribution of the common properties of petitioner and
respondent, pursuant to the court's directive in its main decision to
dissolve the conjugal partnership is a final Order as it finally dis-
poses of the issues concerning the partition of the common proper-
ties of petitioner and respondent, and as such it may be appealed by
the aggrieved party to the Court of Appeals via ordinary appeal.
52
P a n Realty Corporation v. Court of Appeals, 167 SCRA 564; See also Heirs of
Lourdes Potenciano Padilla v. Court of Appeals, G.R. No. 1472005, March 10, 2004;
Sebastian v. Morales, 397 SCRA 549, Feb. 17, 2003; Madrigal v. Lapanday Holding
Corporation, 436 SCRA 123; Morato v. Court of Appeals, 436 SCRA430; Chua v. Santos,
G.R. No. 132467, October 18, 2004, 440 SCRA 121.
53
D e l Pozo v. Penaco, 167 SCRA 577 (1988); Pan Realty Corporation v. Court of
Appeals, G.R. No. 44726, 23 Nov. 1988, 167 SCRA 564.
M
F e h r v. Fehr, G.R. No. 152716, October 23, 2003, 414 SCRA 288.
273
Sec 1 REMEDIAL LAW Rule 65
VOL. Ill
However, considering the merits of the case, the Court believes that
a blind adherence to the general rule will result in miscarriage of
justice as it will divest the petitioner of her just share in their com-
mon property, and thus, deprive her of a significant source of income
to support their children whom the court had entrusted to her care,
hence, the special civil action for certiorari was allowed. Where a
rigid application of the rule that certiorari cannot be a substitute for
appeal will result in a manifest failure or miscarriage of justice, the
provisions of the Rules of Court which are technical rules may be
55
relaxed.
17. Order Appointing Administrator is Appealable

Appeal lies from an order appointing an administrator of a
deceased person's estate as such an order constitutes a final deter-
mination of the rights of the parties thereunder. Hence, the appel-
lant's failure to avail of appeal on time, resort to certiorari is
56
precluded.
18. Remedy Against Order of Dismissal

The remedy against an order of dismissal is appeal, not a spe-
57
cial civil action for certiorari, and if the appeal is solely on a ques-
tion of law, the appeal to the Supreme Court should be by petition
58
for review on certiorari under Rule 45 of the Revised Rules of Court.
19. Not all i n t e r l o c u t o r y r u l i n g s r e v i e w a b l e by cer-

tiorari
Interlocutory Orders
In prohibiting appeals from interlocutory orders, the law does
not intend to accord executory force to such writs, particularly when
the effect would be to cause irreparable damage. If, in the course of
trial, a judge proceeds without or in excess of jurisdiction, this rule
^Fehr v. Fehr, G.R. No. 152716, October 23, 2003, 414 SCRA 288.
M
D e la Rosa v. Court of Appeals, G.R. No. 84164, 5 Sept. 1988, Minute Resolu-
tion, Martinez, Summary of Supreme Court Rulings, 1988.
"Martinez v. Court of Appeals, 237 SCRA 575; Meneses v. Court of Appeals, 237
SCRA 484.
M
Supra; See also Lee v. People, G.R. No. 159288, October 19, 2004, 440 SCRA
662.
prohibiting an appeal does not leave the aggrieved party without

any remedy. In a case like this, a special civil action of certiorari is
59
the plain, speedy and adequate remedy.
An interlocutory order may be assailed by certiorari or prohibi-
tion only when it is shown that the court acted without or in excess
of jurisdiction or with grave abuse of discretion. The court, however,
generally frowns upon this remedial measure as regards interlocu-
tory orders. To tolerate the practice of allowing interlocutory orders
to be the subject of review by certiorari would not only delay the
60
administration of justice but also would unduly burden the courts.
An order setting the case for further proceedings, issued after
the original judgment rendered pursuant to a compromise agree-
ment is set aside, is an interlocutory order and is therefore not
appealable. Since no appeal is available against such an order, the
61
proper remedy to assail it is a special civil action for certiorari.
20. R e m e d y confined to q u e s t i o n s of jurisdiction: Not

to Correct Errors of P r o c e d u r e
The prerogative writ of certiorari does not lie to correct every
controversial interlocutory ruling. It may be used to correct a grave
abuse of discretion, that is a capricious, arbitrary, or whimsical exer-
62
cise of judgment equivalent to lack of jurisdiction. It is confined to
questions of jurisdiction. Its function is to keep an inferior court
within its jurisdiction and to relieve persons from arbitrary acts,
meaning acts which courts or judges have no power or authority in
law to perform. It is not designed to correct procedural errors or the
63
courfs erroneous findings and conclusions.
59
Indiana Aerospace University v. Commission on Higher Education (CHED),
356 SCRA 367, April 4, 2001.
60
L a l i c a n v. Vergara, 2 7 6 SCRA 5 1 8 , J u l y 3 1 , 1997; A n g a r a v. F e d m a n
Development Corp., 440 SCRA 467 (2004).
61
Argana v. Republic of the Philippines, G.R. No. 147227, November 19, 2004,
443 SCRA 184.
62
Lingad v. Macadaeg, 63 O.G. 6395.
M
C a r a n d a n g v. Cabatuando, 53 SCRA 383, 390, October 26, 1973; Phil. Rabbit
v. Galauran, 118 SCRA 664; Commodity Financing Co., Inc. v. Jimenez, 91 SCRA 57;
De Vera v. Pineda, 213 SCRA 434 (1992); People v. Court of Appeals, 423 SCRA 605,
February 24, 2004.
275
VOL. Ill
21. Confined To Correct Defects of Jurisdiction

There is a prevailing erroneous impression that interlocutory
rulings of trial courts on debatable legal points may be assailed by
certiorari. To correct that impression to avoid clogging the appellate
courts with futile certiorari petitions, it should be underscored that
the office of the writ of certiorari has been reduced to the correction of
defects of jurisdiction solely and cannot legally be used for any other
purpose. It is truly an extraordinary remedy and, in this jurisdic-
tion, its use is restricted to truly extraordinary cases cases in
which the action of the inferior court is wholly void; where any
further steps in the case would result in a waste of time and money
and would produce no result whatever; where the parties, or their
privies, would be utterly deceived; where a final judgment or decree
would be naught and a delusion, deciding nothing, protecting no-
body, a judicial pretension, a recorded falsehood, a standing menace.
It is only to avoid such results as these that a writ of certiorari is
usable, and even here an appeal will lie if the aggrieved party refuses
64
to prosecute it."
"If every error committed by the trial court were to be a proper
object of review by certiorari the trial would never come to an end
and the appellate court's dockets would be clogged ad infinitum with
the aggrieved parties-litigants filing petition after petition for writs
of certiorari against every interlocutory order of the trial court."
That situation would be intolerable. Appeal in due time would be the
65
proper remedy.
22. Denial of Motion to D i s c h a r g e A t t a c h m e n t is Mere

Error of J u d g m e n t
It has been held even assuming t h a t the trial court committed
an error in denying the motion to discharge the writ of attachment,
"Hen-era v. Barretto and Joaquin, 25 Phil. 245, 271; Fernando v. Vasquez, 31

SCRA 288, January 30, 1970; M and M Management Aids v. Court of Appeals, 130
SCRA 227; Garcia v. Judge Ranada, etc., et al., 166 SCRA 9, 27 Sept. 1988.
" D e Castro v. Delta Motor Sales Corp., 57 SCRA 344, May 3 1 , 1974; Nocon v.
Hon. Geronimo, 101 Phil. 735; M and M Management Aids v. Court of Appeals, 130
SCRA 227; Young v. Sulit, 162 SCRA 659, 27 June 1988; See also People v. Court of
Appeals, G.R. No. 142051, February 24, 2004, 423 SCRA 605, citing Landbank of the
Phils, v. Court of Appeals, 409 SCRA455, August 2 5 , 2 0 0 3 , and other cases cited therein.
276
ft: 1
the error (if it is an error at all) is an error in judgment which cannot

be corrected through the extraordinary remedy of certiorari but by
66
an ordinary appeal at the proper time.
23. Availability of Certiorari in Cases of Default

a. Where Default P r o p e r
In case of default appeal from judgment of default and not
certiorari is the proper remedy where defendant was properly de-
67
clared in default. Certiorari is not a substitute for remedy of appeal
which has been lost and will not interrupt the running of the period
68
of appeal.
69
Lina was reiterated in Dulos v. Court of Appeals.
b. Where Default Improper

A defendant who is properly declared in default is differently
situated from one who is improperly or allegedly declared in default.
The former irreparably loses his right to participate in the trial,
while the latter retains such right and may exercise the same after
having the order of default and the subsequent judgment by default
annulled and the case remanded to the court of origin. Moreover, the
former is limited to the remedy set forth in [Section 2, paragraph 3
of Rule 41] by virtue of which he can contest only the judgment by
default on the designated ground that it is contrary to the evidence
or the law; the latter, however, has the option to avail of the same
remedy or to forthwith interpose a petition for certiorari seeking the
nullification of the order of default, or in the event that the latter
has been rendered to have both court decrees the order of default
and the judgment by default declared void. The defendant's choice
of the latter course of action is correct for he controverts the judg-
ment by default not on the ground that it is not supported by evi-
dence or it is contrary to law, but on the ground that it is intrinsi-
^Jopillo, Jr. v. Court of Appeals, 167 SCRA 247, 9 November 1988.

67
S e c . 2, Rule 41; Lina v. Court of Appeals, 135 SCRA 637, 511 (1983); Balagtas
Realty v. Romillo, 130 SCRA 415 (1982).
^See also S.C. Johnson and Sons v. Court of Appeals, 188 SCRA 579 (1990).
" 1 8 8 SCRA 413, August 7, 1990; Construction Service of Australia Phils, v.
Peralta, 179 SCRA 344; Ramnani v. Court of Appeals, 221 SCRA 582 (1993).
277
VOL. Ill
cally void for having been rendered pursuant to a patently invalid

70
order of default.
11
However, Pacete v. Cariaga, Jr., the Third Division held:
Under ordinary circumstances, the petition would have
outrightly been dismissed, for, as also pointed out by private re-
spondents, the proper remedy of petitioners should have instead
been either to appeal from the judgment by default or to file a peti-
tion for relief from judgment. This rule, however, is not inflexible; a
petition for certiorari is allowed when the default order is improp-
erly declared, or even when it is properly declared, where grave
abuse of discretion attended such declaration. In these exceptional
instances, the special civil action of certiorari to declare the nullity
of a judgment by default is available.
This is a loose statement and is unnecessary because the de-
fault order in this case is improper as this is a case of legal separa-
72
tion where default is not permitted. Grave abuse of discretion alone
73
is not a ground for certiorari where appeal is available.
In another case, the First Division held:
Respondent court erred when it held t h a t petitioner should
have appealed from the decision, instead of filing the motion to lift
the order of default, because he still had two days left within which
to appeal when he filed the said motion. Said court must have in
mind paragraph 3 of Section 2, Rule 41 of the Revised Rules of
Court, which provides that: "A party who has been declared in de-
fault may likewise appeal from the judgment rendered against him
as contrary to the evidence or to the law, even if no petition for relief
to set aside the order of default has been presented by him in accord-
ance with Rule 38."
Petitioner properly availed of the remedy provided for in Sec-
tion 1, Rule 65 of the Revised Rules of Court because the appeal
under Section 2, Rule 41 was not under the circumstances, a "plain,
70
Matute v. Court of Appeals, 26 SCRA 7 9 8 , 7 6 9 , cited in Omico Mining v. Vallejos,
63 SCRA 285, 300; Akut v. CA, 113 SCRA 213.
71
2 3 1 SCRA 321.
"Section 6, Rule 18.
73
Meralco v. Court of Appeals, 162 SCRA 75 (1988); Del Pozo v. Penaco, 167
SCRA 577; Pan Realty Corp. v. CA, 167 SCRA 564.
278
speedy and adequate remedy in the ordinary course of law." In an

appeal under Section 2, Rule 41, the party in default can only ques-
tion the decision in the light of the evidence on record. In other
words, he cannot adduce his own evidence, like the receipt to prove
74
payment by petitioner herein of his obligation to private respondent.
The foregoing ruling obliterates the well-settled distinct rem-
edies between a party who was properly declared in default and one
who was improperly or illegally declared in default. In all default
cases, the only evidence of record would be that of the plaintiff. The
Decision should therefore be taken only in the light of the particular
facts of the case and not a modification or reversal of the decisions
above-adverted to led by Lina v. Court of Appeals, et seq. NO DOC-
TRINE OR PRINCIPLE OF LAW RENDERED EN BANC OR IN
DIVISION MAY BE MODIFIED OR REVERSED EXCEPT BY THE
75
(SUPREME) COURT SITTING EN BANC.
24. D i s c o v e r y orders n o t subject to certiorari, excep-

tion
The rule is t h a t certiorari will generally not lie to review a
discretionary action of any tribunal. Also, as a general proposition, a
writ of certiorari is available only to review final judgments or de-
crees, and will be refused where there has been no final judgment or
order and the proceeding for which the writ is sought is still pending
and undetermined in the lower tribunal. Pursuant to this rule, it
has been held that certiorari will not lie to review or correct discov-
76
ery orders made prior to trial. This is because, like other rediscov-
ery orders, orders made under Section 16, Rule 24 are interlocutory
77
and not appealable, considering that they do not finally dispose of
78
the proceeding or of any independent offshoot of it.
EXCEPTION:
However, such rules are subject to the exception that discre-
tionary acts will be reviewed where the lower court or tribunal has
74
Capuz v. Court of Appeals, 233 SCRA 472.
76
S e c . 5(3), Art. VIII, 1987 Constitution.
76
1 4 Am. Jur. 2d, Certiorari, Sec. 13.
7 7
4 MOORE'S FEDERAL PRACTICE, 2nd ed., Sees. 26, 79(2).
78
O p , cit., Sees. 26, 83(3); Fortune Corp. v. CA, 229 SCRA 359; Arceta v.
Mangrobang, 432 SCRA 136 (2004).
279
VOL. Ill
acted without or in excess of its jurisdiction, where an interlocutory

order does not conform to essential requirements of law and may
reasonably cause material injury throughout subsequent proceed-
ings for which the remedy of appeal will be inadequate, or where
79
there is a clear or serious abuse of discretion.
25. Function of certiorari

The function of a writ of certiorari is to keep an inferior court
within the bounds of its jurisdiction or to prevent it from committing
such a grave abuse of discretion amounting to excess of jurisdiction.
It is available only for these purposes and not to correct errors of
80
procedure or mistakes in the judge's findings or conclusions. The
mere fact that the court decides the question wrongly is utterly
81
immaterial to the question of its jurisdiction. Thus, assuming
arguendo, that the Court had committed a mistake, the error does
not vitiate the decision considering that it had jurisdiction over the
82
case. The writ of certiorari issues for the correction of errors of
jurisdiction only or grave abuse of discretion amounting to lack or
excess of jurisdiction. The writ of certiorari cannot be legally used
83
for any other purpose. If the court has jurisdiction over the subject
matter and over the person, the orders and rulings upon all ques-
tions pertaining to the case are orders and rulings within its juris-
84
diction and cannot be corrected by certiorari.
79
1 4 Am Jur 2d, Certiorari, Sec. 20; Fortune Corporation v. Court of Appeals,
229 SCRA 359; Ong v. Mazo, G.R. No. 145542, J u n e 4, 2004, 4 3 1 SCRA 56.
80
Regala v. CFI of Bataan, 77 Phil. 684; Ong Sit v. Piccio, 78 Phil. 785; Icutanim
v. Hernandez, 81 Phil. 161; Verhomal v. Tan, 88 Phil. 389; Association of Beverages
Employees v. Figueras, G.R. No. L-4813, May 2 8 , 1 9 5 2 ; Matute v. Macadaeg, 99 Phil.
340.
81
Estrada v. Sto. Domingo, 28 SCRA 891 (1969). See also Arceta v. Mangrobang,
432 SCRA 136; See also Angara v. Fedman Development Corp., 4 4 0 S C R A 4 6 7 (2004).
82
People v. Francisco, 128 SCRA 110 (1984).
83
Silverio v. CA, 141 SCRA 527 (1986).
"'Paramount Insurance Corp. v. Luna, 148 SCRA 572 (1987); Central Bank of
the Phils, v. The Court of Appeals, Felipe Plaza Chua, G.R. No. L-41859, March 8,
1989,171 SCRA 49; Vide Ramnani v. Court of Appeals, 221 SCRA 582 (1993); People v.
Court of Appeals, G.R. No. 142051, February 24, 2004; Manila Electric Co. v. Barlis,
G.R. No. 114231, June 2 9 , 2 0 0 4 , 4 3 3 SCRA 11; See also Angara v. Fedman Development
Corporation, G.R. No. 156802, October 18, 2004.
280
26. Absence of Barangay P r o c e e d i n g s is Procedural

Whether or not the court acted correctly in proceeding with the
case even without barangay proceedings is a procedural question
85
that can only be reviewed on appeal.
27. Propriety of Unlawful Detainer Appeal

The question of whether or not an action for unlawful detainer
was the proper remedy should be addressed in the appeal and not in
86
certiorari.
28. What are Jurisdictional Questions

Jurisdictional questions means questions having to do with an
indifferent disregard of the law, arbitrariness and caprice or omis-
sion to weigh pertinent considerations, a decision arrived at without
rational deliberation, as distinguished from questions that require
digging into the merits and unearthing errors of judgment which is
87
the office on the other hand of review under Rule 45 of the Rules.
29. Errors in appreciation of e v i d e n c e not reviewable

by certiorari
Where the appeal of private respondents was regularly taken
to the Court of Appeals, the appellate court was clothed with the
power and authority to adjudicate the rights and obligations of the
parties before it. In so doing, it re-examined and re-weighed the
evidence on record and came to the conclusion that private respond-
ents were not guilty of the crime charged as the withdrawal of the
alleged shortage was done without intent to defraud nor was dam-
age or prejudice caused thereby to Surigao Development Bank or
the Development Bank of the Phils. The Supreme Court held that:
"Whether this conclusion was based merely on speculations and
conjecture, or on a misapprehension of facts and contrary to the
documents and exhibits of the case, is not for us to determine in a
petition for certiorari wherein only errors of jurisdiction may be
raised. Neither can we determine whether the construction given by
the appellate court to a document is right or wrong as errors in the
85
Felizardo v. Court of Appeals, 233 SCRA 220 (1994).
^ S a n Pedro v. Court of Appeals, August 4, 1994, 235 SCRA 145.
87
Dario v. Mison, 176 SCRA 89.
281
VOL. Ill
appreciation of evidence may not be reviewed by certiorari because

88
they do not involve any jurisdictional question."
30. Rulings on admissibility of evidence interlocutory
Rulings of the trial court in procedural questions and on the
admissibility of evidence during the course of the trial are interlocu-
tory in nature and may not be the subject of separate appeal or
review on certiorari, but are to be assigned as errors and reviewed
89
on appeal from the judgment on the merits.
EXCEPTIONS:
Certiorari may however be availed of to annul a reception of
evidence in violation of the constitutional right of the accused in a
90
criminal case.
An order striking out evidence relating to disbarment which
could have been used for impeachment purposes is correctible by
91
certiorari because it was issued in patent abuse of discretion.
Thus, certiorari may be availed of to contest an interlocutory
order to correct a patent abuse of discretion by the lower court in
issuing the same. It may also be applied for when the broader inter-
ests of justice so requires or when ordinary appeal is not an adequate
remedy. The offer of evidence as suggested by respondent appellate
court as a remedy open to petitioners, while procedurally correct,
would be inadequate and ineffective for purposes of impeachment.
The petitioners should be given sufficient latitude to present and
92
prove their impeaching evidence for judicial appreciation.
^Mujer v. Court of First Instance of Laguna, 35 O.G. 1384; Abig v. Constantino,

SCRA 299, May 31, 1961; Central Bank v. Court of Appeals, supra; Vide People v.
Bans, 239 SCRA 48, December 8 , 1 9 9 4 ; People v. Court of Appeals, G.R. No. 142051,
February 2 4 , 2 0 0 4 , 4 2 3 SCRA 605; Barco v. Court of Appeals, Jan. 2 0 , 2 0 0 4 , 4 2 0 SCRA
162.
89
P e z a v. Alikpala, 160 SCRA 3 1 , April 15, 1988; Lazatin v. Campos, 92 SCRA
250.
T o l e d o v. People, 85 SCRA 355, Sept. 30, 1978; See also Botona v. Court of
Appeals, 398 SCRA 52, February 2 1 , 2003.
91
Villalon, Jr. v. IAC, 144 SCRA 4 3 3 .
Îbid.; Vide Rodriguez v. Court of Appeals, 245 SCRA 150, J u n e 1 9 , 1 9 9 5 .
282
31. Admission of Unauthorized Tape Recordings

Where the assailed interlocutory order admitting unauthor-
ized tape recordings of telephone conversations in evidence is
patently erroneous and the remedy of appeal would not afford ad-
equate and expeditious relief, the Court may allow certiorari as a
93
mode of redress.
32. Finality of D e c i s i o n No Bar to Certiorari on Inci-

dents Connected Therewith
The fact that a decision has become final does not negate the
original jurisdiction of the Court of Appeals to issue certiorari, prohi-
bition and mandamus in connection with orders or processes issued
by the trial court incidental to the execution of the final order or
decision. A superior court is justified to interpose its supervisory
authority thru these extraordinary remedies when the petitioner's
claim is clearly tenable or when the broader interest of justice or
94
public interest so requires it.
95
Thus, in Gamboa v. Ruiz, it was held that the remedy against
any ruling on the question of whether or not the execution sale
should be set aside is certiorari.
33. Certiorari is n o t a Substitute for Appeal

It is settled that a special civil action for certiorari will not lie
as a substitute for the lost remedy of appeal, except when there are
96
special or compelling reasons.
97
Certiorari is not a substitute for appeal.
Certiorari presupposes the absence of an appeal. While there is
no appeal from execution of judgment, appeal lies in case of irregu-
93
Salcedo-Ortanez v. Court of Appeals, 235 SCRA 111 (1994).
^Gamboa v. Ruiz, 108 SCRA 9, 14.
95
1 0 8 SCRA 9.
M
P A A v. Court of Appeals, 282 SCRA 448, December 4 , 1 9 9 7 .
97
D i l l e n a v. Court of Appeals, G.R. No. 77660, July 28, 1988, 163 SCRA 630;
Acain v. IAC, 155 SCRA 100, Oct. 27, 1987; Felizardo v. Court of Appeals, 233 SCRA
220 (1994); Vide Fajardo v. CA, 232 SCRA 291, May 10,1994; Suyat, Jr. v. Torres, G.R.
No. 133530, Oct. 25, 2004, 441 SCRA 265.
283
VOL. Ill
lar implementation of the writ. Irregular execution means failure of

98
the writ to conform to the decree of the decision.
It may well happen and not infrequently, that both remedies
the ordinary remedy of appeal, and the extraordinary one of certio-
rari (as a special civil action, not a mode of appeal) are available to a
party aggrieved by a judgment or final order of a Regional Trial
Court (or of any inferior court, for that matter); that is to say, the
final judgment or order appears to have been rendered without or in
excess of jurisdiction, or with grave abuse of discretion. In such a
situation, the availability of appeal proscribes recourse to the spe-
cial civil action of certiorari."
Illustration of Principle
For failure of his counsel to attend a scheduled hearing, the
trial court declared defendant in default. After he was declared "in
default," the court allowed plaintiff to present his evidence before
the Clerk of Court and rendered judgment in favor of plaintiff. His
motion for reconsideration having been denied, defendant filed a
special civil action for certiorari and prohibition with the Supreme
Court, which dismissed the petition.
HELD:
Considering that a final judgment had been rendered, defend-
ant could have appealed the decision of the trial court, which appeal
would have also raised as an issue the validity of the "default" order.
Hence, the requisite for petitions for certiorari and prohibition that
there be "no appeal, nor any plain, speedy and adequate remedy in
the ordinary course of law" is absent. The special civil actions brought
cannot be used to obtain review where a party has failed to use and
100
thus lost the available remedy of appeal.
98
C a n l a s v. Court of Appeals, 164 SCRA 160, 8 August 1988; Vide Oriental Me-
dia, Inc. v. CA, Dec. 6, 1995, G.R. No. 80127.
"Del Pozo v. Penaco, 167 SCRA 577.
100
Barrameda v. Sunga, G.R. No. 30535, 21 Sept. 1988, Third Division, Minute
Resolution, p. 566, Martinez, Summary of 1988 Supreme Court Rulings; Vide Antonio
v. Intermediate Appellate Court, 216 SCRA 214 (1992).
284
The filing by the petitioners of the certiorari suit did not there-
fore toll the period for appeal or prevent the judgment from becom-
101
ing final.
Certiorari cannot be allowed when a party to a case fails to
appeal a judgment despite the availability of that remedy, certiorari
not being a substitute for lost appeal Certiorari lies only where there
is no appeal nor any plain, speedy, and adequate remedy in the
ordinary course of law. There is no reason why the question raised,
improper venue and lack of cause of action, could not have been
raised on appeal. The remedies of appeal and certiorari are mutually
102
exclusive and not alternative or successive.
In a case, the Court of Appeals ruled that petitioner should have
filed an appeal and not a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure because even assuming that the CTA
erred in ruling that PCOC is exempt from the payment of importation-
related taxes, its error would be an error of judgment committed in
the exercise of its jurisdiction. Where the court denied petitioner's
motion for reconsideration and ordered the entry of judgment, as far
as petitioner was concerned, there was no longer any appeal and
execution of the decision was in order, whereas the prime specification
of petition for certiorari is that there is no appeal, nor any other plain,
103
speedy, adequate remedy in the ordinary course of law.
The availability to respondent of a petition for review under
Rule 43 of the Rules of Court to appeal the decision and Resolution
of the Office of the President effectively foreclose the right to resort
104
to a special civil action for certiorari.
34. When r e m e d y of appeal is available

If the remedy of appeal is available or when appeal had already
been filed with the Court of Appeals the petition for certiorari with
105
the Supreme Court will be dismissed.
101
D e l Rosario v. Balagot, 166 SCRA 429, 18 Oct. 1988; Vide Llaban v. Court of
Appeals, 204 SCRA 887.
102
Rosete, et al. v. CA, 339 SCRA 193, August 29, 2000.
103
Commissioner of Customs v. Court of Tax Appeals, and Philippine Casino
Operators Corporation, G.R. No. 132929, March 27, 2000, 328 SCRA 822.
104
H e i r s of Lourdres Potenciano Padilla v. Court of Appeals, 425 SCRA 236,
March 10, 2004.
105
Collado v. Fernando, 161 SCRA 639 (1988).
285
VOL. Ill
35. But Certiorari May Lie Where Court is Without Ju-

risdiction Over Subject Matter
The remedy of certiorari may, however, be successfully invoked
both in cases wherein an appeal does not lie and in those wherein
the right to appeal have been lost with or without the appellant's
negligence, where the court has no jurisdiction to issue the order or
106
decision which is the subject matter of the remedy.
36. Denial of motion to dismiss or demurrer or of mo-

tion to quash not subject of a certiorari p r o c e e d i n g
Generally, the denial of a motion to dismiss is interlocutory and
is not subject to appeal. Certiorari and prohibition are neither the
remedies to question the propriety of an interlocutory order of the
107
trial court.
An order denying a motion to dismiss is interlocutory, and so
the proper remedy in such a case is to appeal after a decision has
been rendered. A writ of certiorari is not intended to correct a grave
controversial interlocutory ruling; it is resorted to only to correct a
grave abuse of discretion or a whimsical exercise of judgment equiva-
108
lent to lack of jurisdiction.
37. Remedy from denial of m o t i o n to q u a s h

Certiorari is not the proper remedy where a motion to quash an
information is denied. That the appropriate recourse is to proceed to
trial and in case of conviction, to appeal, such conviction, as well as
the denial of the motion to quash, is impelled by the fact that a
denial of the motion to quash, is an interlocutory procedural aspect
which cannot be appealed nor can it be the subject of a petition for
certiorari. The remedies of appeal and certiorari are mutually exclu-
109
sive and not alternative or successive.
The Court stressed that the special civil action of certiorari or
prohibition is not the proper remedy against interlocutory orders
106
Crisostomo v. Endencia, 66 Phil. 1, 8: Caro v. Court of Appeals, 158 SCRA
270, 275.
107
Gamboa v. Judge Alfredo Cruz, 162 SCRA 642, June 27, 1988; Lalican v.
Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518.
10fl
Indiana Aerospace University v. Commission on Higher Education (CHED),
G.R. No. 139371, April 4, 2001, supra.
109
Lalican v. Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518.
286
such as those assailed in these proceedings; i.e., an order denying a

motion to quash the information, and one declaring the accused to
have waived his right to present evidence and considering the case
submitted for decision the established rule is that when such an
adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case
in due course and, when an unfavorable verdict is handed down, to
take an appeal in the manner authorized by law. It is only where
there are special circumstances clearly demonstrating the inadequacy
of an appeal that the special civil action of certiorari or prohibition
110
may exceptionally be allowed.
In a case, a special civil action or certiorari was filed to prevent
the prosecution, trial and determination of the criminal cases until
the constitutionality or legality of the Ordinances they allegedly
violated shall have been resolved. The Court held that the special
civil for certiorari must fail on the ground of prematurity amounting
to a lack of cause of action. There is no showing that said petitioners,
as the accused in the criminal cases, have filed motions to quash the
information's therein and that the same were denied. The ground
available for such motions is that the facts charged therein do not
constitute an offense because the ordinances in question are
111
unconstitutional. It cannot then be said that the lower courts acted
without or in excess of jurisdiction or with grave abuse of discretion
to justify recourse to the extraordinary remedy of certiorari or pro-
hibition. It must further be stressed that even if petitioners did file
motions to quash, the denial thereof would not forthwith give rise to
a cause of action under Rule 65 of the Rules of Court. The general
rule is that where a motion to quash is denied, the remedy therefrom
is not certiorari, but for the party aggrieved thereby to go to trial
without prejudice to reiterating special defenses involved in said
motions, and if, after trial on the merits an adverse decision is
112
rendered, to appeal therefrom in the manner authorized by law. It
110
N i e r r a s v. Dacuycuy, 181 SCRA 1 (1990); Acharon v. Purisima, et al., 13 SCRA
309; People v. Madaluyo, 1 SCRA 990; Pablo G. Quinon v. Sandiganbayan and PP, 271
SCRA 575, April 18, 1997.
U1
V I C E N T E J. FRANCISCO, T H E REVISED RULES OF COURT IN THE PHILS., CRIMINAL PRO.,
582 (2nd Ed., 1969), citing U.S. v. Pompeya, 31 Phil. 245 (1915).
112
Acharon v. Purisima, 13 SCRA 309, 311 (1965); Cruz v. CA, 194 SCRA 145,
152-153; Yap v. LAC, 220 SCRA 245, 253 (1993); People v. Bans, 239 SCRA 48, 54-55
(1994); Quinon v. Sandiganbayan, 271 SCRA 575, April 18, 1997.
287
VOL. Ill
is only where there are special circumstances clearly demonstrating

the inadequacy of an appeal that the special civil action of certiorari
113
or prohibition may exceptionally be allowed. And, even where in
an exceptional circumstance such denial may be the subject of a
special civil action for certiorari, a motion for reconsideration must
have to be filed to allow the court concerned an opportunity to cor-
rect its errors, unless such motion may be dispensed with because of
114
existing exceptional circumstances. Finally, even if a motion for
reconsideration has been filed and denied, the remedy under Rule
65 is still unavailable absent any showing of the grounds provided
115
for in Section 1 thereof. It would be unfair to require the defend-
ants to undergo the ordeal and expense of trial under such circum-
stances, because the remedy of appeal then would not be plain and
116
adequate.
Thus, certiorari does not lie to review an interlocutory order
denying a motion to dismiss, even if it is in the form of a demurrer to
evidence filed after the plaintiff had presented his evidence and
rested his case. Being interlocutory, an order denying a demurrer to
evidence is not appealable. Neither can it be the subject of a petition
for certiorari. After such denial, the petitioners should present their
evidence and if the decision of the trial judge would be adverse to
them, they could raise on appeal the same issues raised in the
demurrer. However, it is also settled that the rule admits of an
exception, i.e., when the denial of a demurrer is tainted with grave
117
abuse of discretion amounting to lack or excess of jurisdiction.
CERTIORARI AS A REMEDY IN A PRELIMINARY

INVESTIGATION
All that is required in the preliminary investigation is the de-
termination of probable cause so as to justify the holding of petition-
113
Quinon v. Sandiganbayan, supra.
114
Liberty Insurance Corp. v. CA, 222 SCRA 37, 47 (1993); Lasco v. UN Revolv-
ing Fund for Natural Resources Exploration, 241 SCRA 6 8 1 , 684 (1995).
U5
See Mendoza v. CA, 201 SCRA 343 (1991); People v. Bans, supra note 7; Tano
v. Salvador, G.R. No. 110249, August 2 1 , 1997.
ll6
D r i l o n v. Court of Appeals, March 20, 1997, 270 SCRA 211.
117
David v. Rivera, G.R. Nos. 139913 and 140159, January 16, 2004, 420 SCRA
288
Sec. 1
118
ers for trial. Probable cause is defined. Only recently in Sadikul
119 120
Sahali v. COMELEC, the Court, citing Garcia, et al. v. HRET
said:
No grave abuse of discretion may be attributed to a court sim-
ply because of its alleged misappreciation of facts and evidence. A
writ of certiorari may not be used to correct a lower tribunal's evalua-
tion of the evidence and factual findings. In other words, it is not a
remedy for mere errors of judgment, which are correctible by an
121
appeal or a petition for review under Rule 45 of the Rules of Court.
EXCEPTIONS:
When there are special circumstances clearly demonstrating
122
the inadequacy of an appeal.
a. However, when a grave abuse of discretion was patently
committed, or the lower court acted capriciously and whimsically,
then it devolves upon the court in a certiorari proceeding to exercise
its supervisory authority and correct error committed which, in such
case, is equivalent to lack of jurisdiction. Prohibition would then lie
since it would be useless and a waste of time to go ahead with the
123
proceedings. It would be unfair to require the defendants to un-
dergo the ordeal and expense of trial under such circumstances,
124
because the remedy of appeal then would not be plain and adequate.
125
b. In Torralba v. Sandiganbayan, (En banc) certiorari, pro-
hibition and mandamus was granted directing Ombudsman to com-
plete the preliminary investigation.
c. Certiorari was allowed as a remedy to annul dismissal of
126
the petition for review by Secretary of Justice.
ns
See Webb v. De Leon, 247 SCRA 652, August 23, 1995.
119
3 2 4 SCRA 510, 2 February 2000.
120
3 1 2 SCRA 358, 12 August 1999.
121
D o m a l a n t a , et al. v. COMELEC, 334 SCRA 555, June 29, 2000.
122
Romualdez v. Sandiganbayan, 385 SCRA 436, July 30, 2002.
123
D o r n v. Romillo, 139 SCRA 139; Bugnay Construction and Development Cor-
poration v. Hon. Crispin C. Laron, 176 SCRA 240, Aug. 10, 1989; Malit v. People, 114
SCRA 348; Mead v. Argel, 115 SCRA 256.
124
Drilon v. Court of Appeals, 270 SCRA 211, March 20, 1997.
12s
Supra.
126
Saavedra, Jr. v. Department of Justice, 44 SCAD 822, Sept. 15, 1993, 226
SCRA 438.
289
VOL. Ill
121
d. Certiorari was allowed in Allado v. Diokno, to annul
the Order of the RTC Judge for the issuance of warrant of arrest on
the ground that there was no probable cause.
e. Certiorari was allowed against an order denying a motion
to dismiss a complaint for malicious prosecution it clearly appearing
from the face of the complaint that none of the requisites thereof,
namely: (1) the fact of the prosecution and the further fact that the
defendant himself was the prosecutor and t h a t the action finally
terminated with an acquittal; (2) that in bringing the action, the
prosecutor acted without probable cause; and (3) that the prosecutor
was actuated or impelled by legal malice, that is by improper or
128
sinister motive, was alleged.
38. The test is adequacy of appeal

129
The test is adequacy of appeal as a remedy.
130
In Phil. Commercial and Industrial Bank v. Escolin, the Su-
preme Court laid down the following guidelines:
In determining whether or not a special civil action for certio-
rari or prohibition may be resorted to in lieu of appeal, in instances
wherein lack or excess of jurisdiction or grave abuse of discretion is
alleged, it is not enough that the remedy of appeal exists or is possi-
ble. It is indispensable that taking all the relevant circumstances of
the given case, appeal would better serve the interests of justice.
Obviously, the longer delay, augmented expense and trouble and
unnecessary repetition of the same work attendant to the present
multiple appeals, which after all deal with practically the same
basic issues that can be more expeditiously resolved or be deter-
mined in single special civil action, make the remedies of certiorari
and prohibition, pursued by petitioner, preferable for purposes of
127
G.R. No. 113630, May 5, 1994, 51 SCAD 9 1 , 232 SCRA 192.
128
Drilon v. Court of Appeals, 270 SCRA 211, March 20, 1997.
129
S e e Cadirao v. Estenzo, 132 SCRA 93; DD Commendador Construction v. Sayo,
118 SCRA 590; Guanzon v. Monteclaros, 123 SCRA 185; See also Geriales v. Court of
Appeals, 218 SCRA 638 (1993).
130
March 29, 1974 and Testate Estate of the Late Linnie Hodges v. Carles, 56
SCRA 266.
290
resolving the common basic issues raised in all of them despite the
131
conceded availability of appeal.
The existence of appeal is a bar where such appeal is in itself a
sufficient and adequate remedy, in that it will promptly relieve the
petitioner from the injurious effects of the order or judgment
132
complained.
Where a judgment in the main action had been rendered by the
respondent court which judgment had subsequently been appealed
to the Court of Appeals, the proceeding pursued by petitioner against
133
the interlocutory order of respondent may no longer be entertained.
Where the right to appeal is lost through petitioner's negli-
134
gence, certiorari will not lie as substitute for an appeal.
Availment of Certiorari when appeal is available may result in
135
the judgment of the trial court becoming final and executory.
EXCEPTIONS:
The rule t h a t certiorari is not a substitute for appeal admits of
exceptions:
1. When the questioned order is an oppressive exercise of
136
authority.
2. An appeal may also be considered as a petition for
137
certiorari.
l3l
Cited in Gamboa v. Court of Appeals, 108 SCRA 9, 21; See also Fehr v. Fehr,
G.R. No. 152716, October 23, 2003, 4 1 4 SCRA 288.
132
S t . Peter Memorial Park v. Campos, 63 SCRA 180; People v. Court of Appeals,
223 SCRA 4 7 9 ( 1 9 9 3 ) .
1 3 3
D D Commendador Construction v. Sayo, supra.
134
Velasco Vda. De Caldito v. Segundo, 117 SCRA 573; Belen v. Court of Appeals,
160 SCRA 291; Lobete v. Sundiam, 123 SCRA 95; Dillena v. Court of Appeals, 163
S C R A 6 3 0 (1988); Doria v. Luna, 160 SCRA312, April 15,1988; Vide People v. Court of
Appeals, 199 SCRA 539 (1991); Fajardo v. Bautista, 232 SCRA 291, May 10, 1994.
136
Chiquillo v. Asuncion, 83 SCRA 248; Peza v. Alikpala, 160 SCRA31, April 15,
1988; Llido v. Marquez, 166 SCRA 61 (1988).
136
C o Chuan Seng v. CA, 128 SCRA 308; Bautista v. Sarmiento, 138 SCRA 587,
September 2 3 , 1 9 8 5 .
137
People v. Baladjay, 113 SCRA 2 8 4 , 2 8 7 ; See also Mascarina v. Eastern Quezon
College, Nov. 29, 1988, 168 SCRA 100; Prime Security, Inc. v. NLRC, 220 SCRA 142
(1993).
291
VOL. HI
3. An appeal made from an interlocutory order of default

138
maybe treated as a certiorari to prevent injustice.
4. In some cases the fact that the error is a mere error of
judgment and not of jurisdiction correctible by appeal and not by
certiorari has been considered as a mere technicality which would
have accomplished nothing substantial except to deny to the peti-
139
tioner the right to litigate the matter he raised.
5. Capricious dismissal of criminal actions
A capricious dismissal of criminal actions may be corrected by
140
certiorari.
6. Certiorari as a remedy is available where the Municipal
Trial Court issued a writ of immediate execution for failure to post a
supersedeas bond although the same was unnecessary. While ap-
peal is available, it would not be adequate, slow, insufficient and will
not promptly relieve a party from the injurious effects of the order
141
complained.
7. The general rule is t h a t a special civil action under Rule
65 of the Rules of Court will not be a substitute in case of a failure to
file a timely petition for review under Rule 45. Where, however, the
application of this rule will result in a manifest failure or miscar-
142
riage of justice, the rule may be relaxed.
143
(a) In Distileria Limtuaco v. IAC, the Supreme Court sus-
pended or excepted the case from the rule that appeal is the proper
remedy.
(b) Other cases where the Supreme Court assumed certiorari
jurisdiction over final judgments in the interest of substantial jus-
138
A k u t v. Court of Appeals, 116 SCRA 214 (1982).
139
T a n Boon Bee and Co., Inc. v. Jarencio, 163 SCRA 205 (1988), citing Rubio v.
Mariano, 52 SCRA 338.
140
People v. Albano, G.R. Nos. 45376-77, 26 July 1 9 8 8 , 1 6 3 SCRA 511; People v.
Castaneda, 165 SCRA 327 (1988).
141
H u l l a m Construction and Development Corp. v. Court of Appeals, 214 SCRA
612; Vide Fajardo v. Bautista, May 10, 1992; Seven Brothers Shipping Corp. v. Court
of Appeals, July 1 9 , 1 9 9 5 , 246 SCRA 33.
142
Escudero v. Dulay, 158 SCRA 69 (1988).
143
1 5 7 SCRA 706.
292
144
tice are: Cordero v. Moscardon, where the trial court erroneously
declared the loser as winner in a barangay election.
145
(c) Seavan Carrier v. GTI Sportswear, where the trial court
awarded P2.4 million in damages for lost merchandise valued at
P182,053.92 only.
8. Where the lower court's exercise of judicial authority in
rendering a decision without conducting a hearing to allow the par-
ties to present their respective evidence is oppressive and amounts
to excess of jurisdiction and grave abuse of discretion, the petition
146
shall be considered as a special civil action of certiorari.
Indeed, there are instances when the Supreme Court relaxed
the application of Rule 65 on certiorari and allowed the writ to issue
147
even while appeal was available in the interest of justice or due to
the dictates of public welfare and for the advancement of public
148
policy or where the broader interests of justice and equities war-
149
rant such extraordinary recourse.
In a case, decision was rendered by the RTC restraining the
petitioner the Secretary of Health from enforcing the order of pre-
ventive suspension of respondent as Provincial Health Officer. Peti-
tioner filed a notice of appeal but was disallowed because it was filed
out of time. Petitioners then filed a petition for certiorari and prohi-
bition before respondent Court of Appeals.
Respondent court, believing that the said petition was made as
a substitute for the lost remedy of appeal, held that where the proper
remedy is appeal, the action for certiorari will not be entertained.
Thus, the petition for certiorari filed by petitioners was dismissed.
The Supreme Court held:
In a long line of cases we held that the special civil action for
certiorari under Rule 65 of the Rules of Court will not lie as a substi-
150
tute for an available or lost appeal.
144
1 3 2 SCRA 413 (1984).
145
1 3 2 SCRA 308.
146
Mascarina, et al. v. Eastern Quezon College, 169 SCRA 100, Nov. 29, 1988.
147
Tirona v. Nanawa, 21 SCRA 395 (1967).
148
J o s e v. Zulueta, 2 SCRA 547 (1968).
149
Marahay v. Melicor, 181 SCRA 811, Feb. 6,1990; Ruiz, Jr. v. Court of Appeals,
200 SCRA 214 (1993).
150
S y v. Romero, 214 SCRA 187 (1992).
293
VOL. Ill
Nevertheless, even when appeal is available and is the proper

remedy, this Court has allowed a writ of certiorari when the orders
of the lower court were issued either in excess of or without
151
jurisdiction.
In the present case, the petition for certiorari filed before re-
spondent court was not filed as a mere substitute for appeal. The
facts and circumstances of this case warrant the filing of the petition
for certiorari and prohibition. The lower court issued a writ of execu-
tion of its March 25, 1992 decision. The motion to stay execution of
the said decision filed by petitioner Secretary of Health was denied.
Likewise, the notice of appeal filed by the said petitioner was also
denied. In the same order, petitioner Dr. Jose Cabrera was found
guilty of indirect contempt and a penalty of three months imprison-
ment was imposed upon him for allegedly refusing to comply with
the writ of execution.
Most importantly, petitioners question the jurisdiction of the
lower court in enjoining the order issued by the Secretary of Health
preventively suspending and subsequently dismissing private re-
spondent and declaring that the said department does not have the
152
jurisdiction to issue the said order.
Thus, while holding that doctrinally entrenched is the general
rule that certiorari is not a substitute for a lost appeal, the Court
pointed to several exceptions to this rule, listed by Justice Regalado,
viz.: (1) where the appeal does not constitute a speedy and adequate
153
remedy, as where 33 appeals were involved from orders issued in a
single proceeding which will inevitably result in a proliferation of
154
more appeals; (2) where the orders were also issued either in
155
excess of or without jurisdiction; (3) for certain special considera-
156
tion, as public welfare or public policy and the cases cited therein;
(4) where in criminal actions, the court rejects rebuttal evidence for
157
the prosecution as, in case of acquittal, there could be no remedy;
151
P N B v. Florendo, 206 SCRA 582 (1992).
152
T h e Secretary of Health v. Court of Appeals, 241 SCRA 688, Feb. 25, 1995.
153
Salvadades v. Pajarillo, et al., 78 Phil. 77.
154
P C I B v. Escolin, et al., 56 SCRA 266, March 29, 1974.
155
Aguilar v. Tan, June 30, 1970; Cf. Bautista, et al. v. Sarmiento, et al., 138
SCRA 587, Sept. 23, 1985.
156
S e e Jose v. Zulueta, et al., 2 SCRA 574, May 3 1 , 1961.
157
People v. Abalos, G.R. No. L-029039, Nov. 28, 1968.
294
158
(5) where the order is a patent nullity; and (6) where the decision
159
in the certiorari case will avoid future litigations." Even in a case
where the remedy of appeal was lost, the Court has issued the writ
of certiorari where the lower court patently acted in excess of or
160
outside its jurisdiction.
A decision and resolutions of the probate court nullifying cer-
tain deeds of sale and, thus, effectively passing upon title to the
properties subject of such deeds may be challenged through a special
civil action for certiorari under Rule 65 of the Rules of Court. Since
the probate court is without jurisdiction to pass upon the issue of
title. The case was considered as a clear exception to the general
rule that certiorari is not a substitute for a lost appeal because the
trial court's decision and resolutions were issued without or in ex-
cess of jurisdiction, which may thus be challenged or attacked at any
time. "A void judgment for want of jurisdiction is no judgment at all.
It cannot be the source of any right nor the creator of any obligation.
All acts performed pursuant to it and all claims emanating from it
have no legal effect. Hence, it can never become final and any writ of
execution based on it is void; x x x it may be said to be a lawless
thing which can be treated as an outlaw and slain at sight, or ig-
161
nored wherever and whenever it exhibits its head."
The trial court commits a grave abuse of discretion when it
162
render a decision in disregard of the parties' compromise agreement.
Such disregard, on the ground that the compromise agreement was
not approved by the court, is tantamount to "an evasion of positive
158
Marcelo v. De Guzman, et al., 114 SCRA 657, June 29, 1982.
159
S t . Peter Memorial Park, Inc. v. Campos, et al., 63 SCRA 180, March 21,
1975; REGALADO, REMEDIAL LAW, Vol. I, 7th Rev. Ed., p. 708.
160
Philippine National Bank v. Florendo, 206 SCRA 5 8 2 , 5 8 9 , February 26,1992;
See also Heirs of Mayor Nemencio Galvez v. Court of Appeals, 255 SCRA 672, 689,
March 2 9 , 1 9 9 6 ; Sanchez v. CA, 279 SCRA 647, Sept. 29, 1997; See also Development
Bank of The Philippines v. Pingol, 420 SCRA 652, January 22, 2004; Fehr v. Fehr, 414
SCRA 288, October 23, 2003; Botona v. Court of Appeals, 398 SCRA 52, February 21,
2003.
161
Leonor v. Court of Appeals, 256 SCRA 69, April 2, 1996; Sanchez v. CA, 279
SCRA 647, Sept. 29, 1997.
162
S e e Julieta V. Esquerra v. Court of Appeals and Sureste Properties, Inc., G.R.
No. 119310, p. 21, February 3 , 1 9 9 7 ; and Tac-an Dano v. Court of Appeals, 137 SCRA
803, 813, July 29, 1985.
295
VOL. Ill
duty or to a virtual refusal to perform the duty enjoined or to act in

163
contemplation and within the bounds of law."
The Court held that foregoing issues clearly involve not only
the correctness of the trial court's decision but also the latter's juris-
diction. They encompass plain errors of jurisdiction and grave abuse
164
of discretion, not merely errors of judgment. Since the trial court
exceeded its jurisdiction, a petition for certiorari is certainly a proper
remedy. Indeed, it is well-settled that "(a)n act done by a probate
165
court in excess of its jurisdiction may be corrected by certiorari r
The Broader Interests of J u s t i c e Principle

Considering the broader and primordial interests of justice,
particularly when there is grave abuse of discretion, an occasional
departure from the general rule that the extraordinary writ of cer-
166
tiorari cannot substitute for a lost appeal is warranted, where
there is patent irregularity and grave abuse of discretion committed
by the trial court in dismissing petitioner's complaint, such that
appeal therefrom was not an adequate remedy in the ordinary course
167
of law.
Certiorari may be allowed where the appeal does not provide a
168
speedy and is inadequate.
163
P a r e d e s v. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990,
citing Carson, et al. v. Judge Pantamosos, Jr., 180 SCRA 151, December 15, 1989;
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, 170 SCRA 246,
February 13,1989, and People v. Manuel, 11 SCRA618, July 3 , 1 9 6 4 . See also Cohingyan
Jr. v. Cloribel, supra, pp. 387-388; Sanchez v. CA, G.R. No. 108947, Sept. 2 9 , 1 9 7 7 , 279
SCRA 647.
164
S e e Cochingyan, Jr. v. Cloribel, supra, p. 386.
165
M a n i n a n g v. Court of Appeals, 114 SCRA 478, 485, J u n e 1 9 , 1 9 8 2 , citing Lla-
mas v. Moscoso, 95 Phil. 599 (1954); Sanchez v. CA, G.R. No. 108947, Sept. 29, 1997,
279 SCRA 647. Such as an order granting execution pending appeal where the same is
not founded on good reason. (Philippine Nails and Wires Corp. v. Malayan Insurance
Company, Inc., 397 SCRA 431).
166
L u n a v. Court of Appeals, supra.
167
Republic of the Philippines v. CA, G.R. No. 110020, September 25, 1998, 296
SCRA 1 7 1 , 1 8 3 .
168
S M I Development Corporation v. Republic of the Philippines, G.R. No. 137537,
Jan. 28, 2000, 323 SCRA 862 such an order granting execution pending appeal where
the same is not founded on good reason. (Philippine Nails and Wire Corporation v.
Malayan Insurance Company, Inc., 397 SCRA 431).
296
39. Where Appeal and Certiorari Availed at Same Time

After a judgment had been rendered and an appeal therefrom
had been perfected, a petition for certiorari relating to certain inci-
dents therein may prosper where the appeal does not appear to be a
plain, speedy and adequate remedy. Hence, appeal and certiorari are
169
not remedies that exclude each other.
170
In De Vera v. Santos, the Court held
"Although the petitioner Mercy Almonidovar had already
perfected an appeal from the judgment of the respondent court,
she is not barred from applying for the extraordinary remedy of
certiorari since appeal is not an adequate remedy to correct
lack or excess of jurisdiction because appeal cannot promptly
relieve the petitioner from the injurious effects of an invalid
order."
111
In Jaca v. Davao Lumber Company
"The availability of the ordinary course of appeal does not
constitute sufficient ground to prevent a party from making
use of the extraordinary remedy of certiorari where the appeal
is not an adequate remedy or equally beneficial, speedy and
sufficient. It is the inadequacy not the mere absence of all
other legal remedies and the danger of failure of justice with-
out the writ, t h a t must usually determine the propriety of
112
certiorari"
Thus, the filing of a petition for certiorari may not be an aban-
donment of an appeal where the remedies are not incompatible,
such as an appeal from the final judgment and certiorari against the
order denying the motion for new trial based on newly discovered
173
evidence where appeal therefrom would not be adequate.
169
L a n s a n g v. Court of Appeals, G.R. No. 76028, April 6, 1990, 84 SCRA 230.
170
7 9 SCRA 72. The special civil action should not, however, assail the merits of
the appeal, otherwise, the rule on forum shopping may be violated. (See Panadero v.
Abragan, G.R. No. 158917, March 1, 2004, 424 SCRA 155).
171
1 1 3 SCRA 107.
m
Vide Valencia v. CA, 184 SCRA 561 (1990); Vide Fehr v. Fehr, 414 SCRA 288,
October 23, 2003.
173
S t . Peter Memorial v. Campos, 63 SCRA 180. The special civil action should
not, however, avail to merits of the appeal otherwise, the non-forum shopping may be
violated. (See Panadero v. Abragan, G.R. No. 158917, 424 SCRA 155, March 1, 2004).
297
VOL. Ill
Where it appears that after judgment ex parte was rendered for

non-appearance of the defendants, a motion for reconsideration which
in effect was a motion for new trial was filed and counsel's failure to
appear was duly explained which may be considered excusable and
that assuming the petitioners to be at fault, they contend that the
award of additional damage of P250.00 per day is unconscionable in
addition to the actual damage to the car of P19,500.00 which can run
up to the amount P600,000.00, an appeal from the judgment and
certiorari against the order denying the motion for reconsideration
or new trials is allowable and may not be considered as an abandon-
174
ment of the appeal.
An appeal to the Secretary of Agrarian Reform from the deci-
sion of the Regional Director denying the application for exemption
from the coverage of the CARP would appear to be a useless exer-
cise, and hence, may not constitute a plain, speedy and adequate
remedy in the ordinary course of law because he had already can-
celled petitioners' title to the property which simply means, he con-
176
curred in the decision of the respondent Regional Director.
40. Right to appeal must still be available w h e n certio-

rari filed
176
As pointed out in Hipolito vs. Court of Appeals
"While the special civil action of certiorari may be availed of in
the alternative situation where an appeal would not constitute a
plain, speedy and adequate remedy, this is on the theoretical as-
sumption that the right to appeal is still available in the case. If,
however, the remedy by appeal had already been lost and the loss
was occasioned by petitioner's own neglect or error in the choice of
remedies, certiorari cannot lie as a substitute or a tool to shield the
petitioner from the adverse consequences of such neglect or error.
The two remedies are mutually exclusive and not alternative or
177
successive."
'Lansang v. Court of Appeals, supra.

;Heirs of Pedro Atega v. Garilao, 357 SCRA 203, April 20, 2 0 0 1 .
!
230 SCRA 191, citing Federation of Free Workers, et al. v. Inciong, 208 SCRA
'Manila Electric Company v. Court of Appeals, 187 SCRA 200, 205, July 4,
298
41. N e e d to Exhaust remedies; Motion for Reconsidera-

tion
In certiorari proceedings, the cardinal rule is that the Court
must be given the opportunity to correct itself. Thus, for the special
civil action to prosper, there must be no appeal or any plain speedy
and adequate remedy, in the ordinary course of law. Petitioners,
therefore, must exhaust all available remedies in the lower court
18
before filing a petition for certiorari} Before a petition for certio-
rari in a higher court, the attention of the lower court should first be
called to its supposed error and its correction should be sought. If
this is not done, the petition should be denied. The reason for this
rule is t h a t the issue which courts of justice are bound to decide
should not summarily be taken from them and submitted to an
appellate court without first giving such lower courts the opportu-
179
nity to dispose of the same with due deliberation.
There is need to exhaust administrative remedies before the
Securities and Exchange Commission before resorting to judicial
180
review.
42. The n e e d to file m o t i o n for reconsideration

The general rule is that a motion for reconsideration must first
181
be filed before resorting to certiorari.
The law intends to afford the tribunal, board or office, an op-
portunity to rectify the errors and mistakes it may have lapsed into
182
before resort to the courts of justice can be had.
178
S a l a s v. Adil, 90 SCRA 121.
179
B u t u a n Bay Wood Export Corporation v. Court of Appeals, 97 SCRA 297, 305;
Boiser v. CA, 122 SCRA 945; Republic of the Philippines v. Sandiganbayan, G.R. No.
141796, June 15, 2005.
180
See Young v. Sulit, 162 SCRA 659 (1988); Industrial Power Sales v. Duma
Sinsuat, 160 SCRA 19 (1988).
lfll
D . C . Crystal v. Laya, 170 SCRA 734 (1989); Purefoods Corp. v. NLRC, 171
SCRA 415 (1989); Philippine National Construction Corporation v. National Labor
Commission, July 7 , 1 9 9 5 , 245 SCRA 66; Abacan, Jr. v. Northwestern University, G.R.
No. 140777, April 8, 2005.
182
Seagull Ship Management and Transport, Inc. and Dominion Insurance Cor-
poration, 333 SCRA 336 , June 8, 2000, cited in Metro Transit Organization, Inc. v.
Court of Appeals, 392 SCRA 229, Nov. 19, 2002; National Housing Authority v. CA,
Rose Marie Alonzo-Legasto, 360 SCRA 533, July 5, 2001.
299
VOL. Ill
Where petitioners had not only failed to explain its failure to

file a motion for reconsideration but also failed to show sufficient
justification for dispensing with the requirement, certiorari cannot
be resorted to as a shield from the adverse consequences of petition-
183
ers' own omission to file the required motion for reconsideration.
The filing of such a motion is intended to afford public respond-
ent an opportunity to correct any actual or fancied error attributed
to it by way of re-examination of the legal and factual aspects of the
case. Thus, petitioner's inaction or negligence under the circum-
stances is respondent commission to cleanse itself of an error unwit-
tingly committed or to vindicate itself of an act unfairly imputed. An
improvident resort to certiorari cannot be used as a tool to circum-
vent the right of public respondent to review and purge its decision
of an oversight, if any. Neither should this special civil action be
resorted to as a shield from the adverse consequences of petitioner's
own negligence or error in the choice of remedies. Having allowed
the decision to become final and executory, petitioner cannot by an
overdue strategy question the correctness of the decision of the re-
spondent commission when a timely for reconsideration was the
184
legal remedy indicated.
EXCEPTIONS:
A Motion for Reconsideration Maybe Dispensed With:
1. Where public welfare and the advancement of public policy
so dictate, and the broader interests of justice so require;
2. Or where the orders complained of were issued in excess
185
of or without jurisdiction;
3. Or where appeal was not considered the appropriate rem-
1B3
Supra; Seagull Ship Management and Transport, Inc. and Dominion Insur-
ance Corporation, 333 SCRA 336, J u n e 8, 2000, cited in Metro Transit Organization,
Inc. v. Court of Appeals, G.R. No. 142133, Nov. 19, 2002, 392 SCRA 229; See also N H A
v. CA, Rose Marie Alonzo-Legasto, 360 SCRA 533, July 5, 2001; See also Agilent
Technologies v. Integrated Silicon Technology, 427 SCRA 593, April 14, 2004; Yao v.
Perello, 414 SCRA 474, October 24, 2003.
184
Purefoods Corporation v. NLRC, supra.
185
Philippine Consumer Foundation, Inc. v. NTC, 125 SCRA 845.
300
edy, such as appeal from orders of preliminary attachment or ap-

186
pointment of a receiver;
187
4. When it would raise the same points.
Thus where the court below ruled that it had jurisdiction and
would therefore take cognizance of the complaint of respondents.
Without filing a motion for reconsideration petitioners filed before
the appellate court a Petition for Certiorari and Prohibition which
again questioned the legal competence of the trial court. Plainly, the
issue raised before the appellate court was the same question pre-
sented before and passed upon by the lower court, there is no neces-
sity for filing a motion for reconsideration prior to taking recourse to
a writ of certiorari. The trial court already had the opportunity to
consider and rule squarely on the question of jurisdiction, so that it
would already be pointless to file a motion for reconsideration. The
rule requiring exhaustion of remedies does not call for an exercise in
futility. Such is a special circumstances which certainly warrants
immediate and more direct action. Amotion for reconsideration would
have been needless since the trial court's resolution already left
petitioners with no other plain, speedy and adequate remedy in the
188
ordinary course of law.
189
5. Where the error is patent or the order is void.
6. Where relief is extremely urgent as when the court has
190
already ordered execution of partial summary judgment. Where
petitioners' property is scheduled to be sold on execution there is no
191
need to wait for the resolution on a motion for reconsideration.
Elucidating on the reason for the exceptions, the Supreme Court
explained that a motion for reconsideration may be dispensed with,
when it would have been useless. When the questions raised before
186
Enriquez v. Rivera, 90 SCRA 641; Abacan, Jr. v. Northwestern University,
G.R. No. 140777, April 8, 2005; Acance v. Court of Appeals, G.R. No. 159699, March
18, 2005.
187
Progressive Development Corporation v. Court of Appeals, 301 SCRA 637, 22
January 1999.
188
N H A v. CA, Rose Marie Alonzo-Legasto, G.R. No. 144275, July 5, 2001, 360
SCRA 533.
189
Aquino v. NLRC, 226 SCRA 76 (1993).
190
Guevara v. CA, 124 SCRA 297.
191
V d a . de Sayman v. CA, 121 SCRA 650 (1983).
301
VOL. Ill
the Supreme Court are the same as those which were squarely raised
in and passed by the lower court, the filing of the motion for recon-
sideration in said court before certiorari can be instituted in the
192
Supreme Court is no longer a prerequisite.
193
As held in Bache and Co. (Phil.), Inc. v. Ruiz, "The rule
requiring the filing of a motion for reconsideration before an applica-
tion for a writ of certiorari can be entertained was never intended to
be applied without considering the circumstances. The rule does not
apply where the deprivation of petitioner's fundamental right to due
process taints the proceeding against them in the court below not
only with irregularity but also with nullity." Likewise, in Pajo, et al.
194 195
v. Ago, et al., and in Gonzales v. Court of Appeals, the court ruled
that "It is only when questions are raised for the first time before the
high court in a certiorari case that the writ shall not issue, unless
the lower court had first been given an opportunity to pass upon the
196
same." Further, in the case of Matute v. Court of Appeals, it was
held that "while as a matter of policy a motion for reconsideration in
the lower court has often been considered a condition sine qua non
for the granting of a writ of certiorari, the rule does not apply 'where
the proceeding in which the error occurred is a patent nullity' or
where the deprivation of petitioner's fundamental right to due proc-
ess x x x taints the proceeding against him in the court below not
197
only with irregularity but with nullity, or where special circum-
stances warrant immediate and more direct action x x x . " The records
of this petition clearly disclose that the issues herein raised have
198
already been presented to an passed upon by the court a quo.
43. Restatement of Rule a n d E x c e p t i o n

As a general rule, Certiorari will not lie unless an inferior
Court has, through a Motion for Reconsideration, a chance to correct
the errors imputed to it.
192
Vide Peroxide Phils. Corp. v. CA, 199 SCRA 882 (1991).
193
3 7 SCRA 823.
194
1 0 8 Phil. 905.
195
3 SCRA 465.
196
2 6 SCRA 768.
197
Luzon Surety Co. v. De Marbella, et al., 109 Phil. 734 (1960).
198
Corro v. Lising, 137 SCRA 545.
302
This, however, admits of exceptions, namely: (1) when the issue

raised is one purely of law; (2) where public interest is involved; and
199
(3) in case of urgency; (4) where the disputed orders are patent
nullities and the Judge has in effect deprived petitioner of its right
to appeal and there is no other plain, speedy, and adequate remedy
200
in the ordinary course of law, or where special circumstances war-
201
rant immediate or more direct action.
For example, the interpretation of Section 1, Republic Act 3802
as to the coverage determination of the "at cost" selling price is a
purely legal one. Hence, an administrative review is not a condition
202
precedent to judicial relief.
The regulation or administration of educational institution,
especially on the tertiary level is invested with public interest. Hence,
the haste with which the solicitor general raised these issues before
the appellate court is understandable. Respondent's Petition for Cer-
203
tiorari did not require prior resort to a motion for reconsideration.
In sum, while generally, certiorari as a special civil action will
not lie unless a motion for reconsideration is filed before the re-
spondent tribunal to allow it an opportunity to correct its imputed
errors, the following have been recognized as exceptions to the rule:
(a) where the order is a patent nullity, as where the court a
quo has jurisdiction;
(b) where the questions raised in the certiorari proceed-
ings have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the
lower court;
199
Central Bank v. Cloribel, 44 SCRA 307 (1972); Phil. British Assurance v. IAC,
150 SCRA 520; Gonzales, Jr. v. IAC, 131 SCRA 468, 474.
200
N E A v . CA, 126, SCRA 394.
201
Liberty Insurance Corporation v. Court of Appeals, 222 SCRA 37 (1993); See
also Developer's Group of Companies v. Court of Appeals, 219 SCRA 715; Progressive
Development Corporation v. Court of Appeals, 301 SCRA 637, 22 January 1999; Indi-
ana Aerospace University v. Commission on Higher Education (CHED), 356 SCRA
367, April 4, 2001.
202
S a g u n , et al. v. PHHC, 162 SCRA 411 (1988).
203
I n d i a n a Aerospace University v. Commission on Higher Education (CHED),
356 SCRA 367, April 4, 2001.
303
VOL. Ill
(c) where there is an urgent necessity for the resolution of

the question and any further delay would prejudice the interests of
the Government or of the petitioner or the subject matter of the
action is perishable;
(d) where under the circumstances, a motion for recon-
sideration would be useless;
(e) where petitioner was deprived of due process and there is
extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is improb-
able;
(g) where the proceedings in the lower court are a nullity for
lack of due process;
(h) where the proceedings was ex parte or in which the peti-
tioner had no opportunity to object; and
(i) where the issue raised is one purely of law or where pub-
204
lic interest is involved, (emphasis supplied)
44. Certiorari m a y be resorted to e v e n if there is a pend-

ing motion for reconsideration
It was held that certiorari and prohibition are not premature
despite the pendency of petitioner's motion for reconsideration where
the permanent preliminary injunction complained of is part, in fact,
the main part, of the partial judgment complained of. This judgment
partakes of the nature of a writ of preliminary injunction and is
effective immediately. Being forthwith injurious to the public inter-
est represented here by the Director of Forestry, and to the interest
that Valeriano Bueno claims to have a right over the area in which
respondent Patanao was engaged in logging, and considering the
court's delay in acting on the motion for reconsideration, petitioners
were justified in filing the petition for certiorari and prohibition
204
Jennifer Abrahan v. NLRC, 353 SCRA 739, March 6, 2001; See also Metro
Transit Organization, Inc. v. Court of Appeals, 392 SCRA 229, Nov. 19, 2002; Pefianco
v. Moral, 322 SCRA 439, Jan. 19, 2000; See also Yau v. The Manila Banking Corpora-
tion, 384 SCRA 340, July 11, 2002.
304
without waiting for the resolution of the motion for reconsideration

205
of the Philippine Constabulary."
A petition for certiorari against an order prohibiting execution
was, however, held to be premature where the petitioners did not
wait for the resolution of the respondent Securities and Exchange
206
Commission on their prayer that the appeal should be disallowed.
Similarly, a filing of a motion for reconsideration en banc of the
decision of the COMELEC division should first be filed before a
petition for certiorari may be filed in the Supreme Court. Only and
final orders of the COMELEC en banc may be brought to the Su-
207
preme Court on certiorari.
45. Limited Inquiry in Certiorari
R e v i e w of Authority (Jurisdiction) to Act

Certiorari is a remedy narrow in its scope and inflexible in
208
character. It is not a general utility tool in the legal workshop. In
certiorari proceedings, the approach focuses on the actions of a court
by which would be determined whether or not the said court ex-
ceeded the confines of its jurisdiction or proceeded without jurisdic-
tion or with grave abuse of discretion while in appellate processes,
the approach centers on misconception or errors of law, misappre-
209
hension of facts or misuses of procedural rules.
46. Does not Include R e v i e w of Intrinsic Merits of Ques-

t i o n e d Order
In certiorari proceedings, it devolves upon the appellate court
to only pass upon the regularity and authority of the act of the court
a quo in issuing the questioned order and writ of execution. But the
invoked corrective and supervisory jurisdiction of the appellate court
could not be broadened so as to include a review of the questioned
order as to its intrinsic correctness or as to the merits of the contro-
versy as adjudged in the trial court's decision which is the proper
205
B u e n o v. Ortiz, 23 SCRA 1151; See also Gelmart Industries Phil., Inc. v. NLRC,
176 SCRA 2 9 5 ( 1 9 8 9 ) .
206
Robert Young v. Sulit, 162 SCRA 659 (1988).
207
R e y e s v. Regional Trial Court of Oriental Mindoro, 244 SCRA41, May 5,1995.
208
S e e also Mayuga v. Court of Appeals, 158 SCRA 325 (1988).
209
Silverio v. CA, supra; Meralco v. Barlis, 433 SCRA 11.
305
VOL. Ill
subject of the pending appeal. An appellate court's dismissal of the

petition (for certiorari) constituted exclusively a judgment on. the
only point in litigation in the certiorari proceedings the regularity
of the trial court's execution order and writ of execution in terms
that the same were issued with jurisdiction and without grave abuse
of discretion and certainly not a judgment on the merits of the
case which could work, together with the other requisites of the
principle of res judicata, to bar the pending appeal which as stressed
by the Court of Appeals itself was the proper form for reviewing any
210
errors of judgment in fact and in law.
Where the petition is one for certiorari under Rule 65 of the
Rules of Court, the inquiry that the court should address itself is
limited to error of jurisdiction or grave abuse of discretion commit-
211
ted by the respondent court.
It was held that respondent Court of Appeals acted ultra juris-
diction in affirming the judgment rendered by the Regional Trial
Court on the ejectment and consignation cases. Elevated by peti-
tioner to the Court of Appeals was only the propriety of the issuance
of the writ of execution of the judgment by the trial court. The
decision on the merits affirming the judgment of the Metropolitan
Trial Court was never appealed, and rightfully so since petitioner
earlier filed a motion for reconsideration with the trial court and
was awaiting resolution thereof. Therefore, the authority of respond-
ent court was confined only to ruling upon three issue of whether the
Regional Trial Court committed grave abuse of discretion in issuing
the order directing the issuance of a writ of execution against peti-
tioner. Whether the trial court committed a mistake in deciding the
case on the merits is an issue way beyond the competence of re-
212
spondent appellate court to pass upon in a certiorari proceeding.
47. When Superior Court May Resolve Merits of Main

Case
There are cases where the Supreme Court instead of remand-
ing the case for further proceedings resolves the merits of the case in
210
Silverio v. CA, supra.
211
Islamic Da' Wah Council of the Philippines v. Court of Appeals, 178 SCRA
178, Sept. 29, 1989; Municipality of Binan v. Court of Appeals, 219 SCRA 69 (1993).
212
Municipality of Binan v. CA, 219 SCRA 69, 17 February 1993; Chua v. CA,
271 SCRA 546, April 18, 1997.
306
dispute based on the records before it. The common denominator is

the fact that the trial court had received all the evidence intended to
213
be presented by both parties or where the issue raised before the
Supreme Court on certiorari is the propriety of a judgment on the
214
pleadings.
Thus, in one case, the Court noted that petitioner filed a mo-
tion for reconsideration of the decision ordering her ejectment with
the Regional Trial Court of Manila. It appears that the same has not
been resolved up to now perhaps due to the fact that the Court of
Appeals had taken cognizance of the merits of the case by affirming
the decision of the trial court although, clearly, it was bereft of au-
thority to do so. J u s t the same, the remand of this case to the trial
court for resolution of the motion for reconsideration is no longer
necessary since this can resolve the dispute based on the records be-
fore it; besides, the ends of justice will not be subserved by a remand
215
which will only unduly prolong the agony of the prevailing party.
48. Certiorari a l l o w e d w h e r e a n n u l m e n t of judgment

is i n a d e q u a t e
The respondents' contention that the petition is in effect an
action to annul a judgment which is within the exclusive original
jurisdiction of the Court of Appeals has already been answered in
216
Matanguihan v. Tengco where, by declaring that an action for
annulment of judgment is not a plain, speedy and adequate remedy,
this court in effect affirmed that certiorari is an appropriate remedy
against judgments or proceedings alleged to have been rendered or
217
held without valid service of summons.
49. No N e e d of t h e Motion to Intervene

It has been held that a motion for leave to intervene need not
be resorted first by one who is not a party to the main case. Certio-
213
H e c h a n o v a v. CA, 145 SCRA 553; Lianga Bay Logging Co., Inc. v. Court of
Appeals, 157 SCRA 357 (1988); Beautifont, Inc. v. Court of Appeals, 157 SCRA 481.
2 1 4
D D Commendador Construction Corp. v. Sayo, 118 SCRA 590; See also Magno
Adamos v. Bagasao, 162 SCRA 747 (1988).
216
C h u a v. CA, G.R. No. 112948, April 1 8 , 1 9 9 7 , 271 SCRA 546.
a i 9
9 5 SCRA 478, 485.
817
Syjuco, Inc. v. Jose P. Castro, et al., 175 SCRA 171 (1989).
307
VOL. Ill
rari maybe commenced at once in case of urgent relief from an

218
implementary order.
The Court in said case held that if aggrieved, even a non-party
may institute a petition for certiorari. The petitioner therein was the
holder in her own right of three mining claims and could file a
petition for certiorari, the fastest and most feasible remedy since she
could not intervene in the probate of her father-in-laws' estate.
Where the petition was brought in the name of the private

complainant in the falsification case before the respondent court
and on behalf of the corporation whose documents were alleged to
have been falsified, the court held the corporation as a proper party
in the petition for certiorari because the proceedings in the criminal
219
case directly and adversely affected the corporation.
50. Non-Party Not Allowed To File P e t i t i o n For Certio-

rari
It was, however, held as grave abuse of discretion for the Court
of Appeals to sanction the standing of a party to join a petition for
certiorari when said litigant was not a party in interest in the pro-
220
ceedings in the lower court.
A non-party could not file a petition for certiorari to assail the
order of the trial court. He does not possess the requisite standing to
file such suit. The remedy is to intervene in the trial court at anytime
221
before the rendition of judgment.
a. Certiorari by non party to annul the order of the probate
court allowing the construction of a fence of the lots belonging to the
estate was not allowed for lack of legal standing, viz., material inter-
est as distinguished from a mere incidental interest. The term "per-
son aggrieved" is not to be construed to mean any person who feels
218
Pastor, Jr. v. CA, 122 SCRA 885.
219
C h u a v. Court of Appeals, G.R. No. 150793, November 19, 2004, 433 SCRA
259.
220
Ciudad Real and Development Corp. v. Court of Appeals, 229 SCRA 71 (1994);
See also Chua v. Court of Appeals, G.R. No. 150793, November 19, 2004, 433 SCRA
259.
221
D u n g o g v. Court of Appeals, G.R. No. 139767, August 5, 2003, 408 SCRA 267.
308
injured by the lower court's order, but pertains to one who was a
222
party in the proceedings before the lower court.
51. Not a Forum to Determine Criminal Liability

A Special Civil Action is not a forum for determining the crimi-
nal liability of an accused. Where there is no grave abuse of discre-
tion, an order denying a motion to dismiss the criminal case is not
223
annullable.
52. May i s s u e w h e r e order of e x e c u t i o n varies terms

An order of execution t h a t varies the term of a final order can
224
be questioned in certiorari proceedings.
53. May be d i s m i s s e d w i t h o u t h e a r i n g
Certiorari maybe dismissed without hearing even if an order to
225
answer has been issued.
54. D i s p u t e d facts n o t a l l o w e d
Where the petition involves disputed facts, certiorari maybe
226 221
dismissed. Questions of fact are improper in certiorari.
The Supreme Court cannot pass upon the sufficiency or insuffi-
228
ciency of evidence in a certiorari case. The Review of facts and
evidence is not t h e province of the extraordinary remedy of
229
certiorari
222
T a n g , et al. v. Court of Appeals, 325 SCRA 394, Feb. 11, 2000; Macias v. Lim,
G.R. No. 139284, June 4, 2004, 431 SCRA 21; See also Development Bank of the
Philippines v. Commission on Audit, 422 SCRA 459 (2004). Note: However: Non-party
may file action for annulment of judgment under Rule 47 Islamic Dah'Wah Council of
the Phils, v. CA, 178 SCRA.
223
J o s e p h v. Villaluz, 89 SCRA 324.
224
Pastor, Jr. v. CA, supra; De la Cruz v. Sadang, 167 SCRA 232, 9 November
1988; Paulino v. Court of Appeals, February 28, 1994.
225
R e g a l a v. De Guzman, 12 SCRA 204.
226
F C I Employees and Workers Union v. Marcos, 39 SCRA 178.
227
S o t t o v. COMELEC, 76 Phil. 518; Ygay v. Escareal, 135 SCRA 78; Filipino
Merchant Insurance v. IAC, 162 SCRA 669 (1988); Olivarez v. Sandiganbayan, Octo-
ber 4 , 1 9 9 5 , 248 SCRA 700.
228
P e r e z v. Hagonoy Rural Bank, 327 SCRA 588, March 9, 2000.
229
Yuchengco v. Court of Appeals, 376 SCRA 521, Feb. 7, 2002.
309
VOL. Ill
a. Exceptions
Exception Factual Findings by NLRC may be r e v i e w e d un-
der Rule 65
It has, however, been held that under Sec. 9 of BP Big. 129 as
amended by R.A. 7902 the appellate courts, pursuant to the exercise
of its original jurisdiction over petitions for certiorari, has the power
to review NLRC cases, which extends to the factual findings of the
230
labor arbiter when these are at variance with those of the NLRC.
Petitioner contends that the Court of Appeals cannot revise the
factual findings of the NLRC and substitute the same with its own.
He insists that the Court of Appeals acted with grave abuse of dis-
cretion when it refused to dismiss the original special civil action of
certiorari filed by private respondents before it. He claims that by
substituting the factual findings of the NLRC, the Court of Appeals
231
disregarded the ruling laid down in the case ofJamer v. NLRC, in
which it was held that mere variance in the assessment of the evi-
dence by the NLRC resulting in its dismissal of the complaints for
illegal dismissal and by the labor arbiter finding the complainants
to have been validly dismissed did not necessarily warrant another
full review of the facts by the appellate court provided that the
findings of the NLRC are supported by the records. Applying the
ruling in that case, petitioner argues that whatever error of judg-
ment the NLRC may have committed in this case is not correctible
through an original special civil action for certiorari before the Court
of Appeals.
The contention has no merit. In St. Martin Funeral Homes v.

232
NLRC it was held that the special civil action of certiorari is the
mode of judicial review of the decisions of the NLRC either by this
Court and the Court of Appeals, although the latter court is the
appropriate forum for seeking the relief desired "in strict observance
of the doctrine on the hierarchy of courts" and that, in the exercise of
its power, the Court of Appeals can review the factual findings or the
230
Tanjuan v. Philippine Postal Savings Bank, G.R. No. 155278, September 16,
2003, 411 SCRA 168 (2003).
231
2 7 8 SCRA 6 3 2 ( 1 9 9 7 ) .
232
2 9 5 SCRA 494 (1998).
310
legal conclusions of the NLRC. The contrary rule in Jamer was thus
233
overruled.
The court, however, clarified that in petitions for certiorari,
evidentiary matters or matters of fact raised in the court below are
not proper grounds nor may such be ruled upon in the proceedings.
234
As held in National Federation of Labor v. NLRC.
At the outset, it should be noted that a petition for certio-

rari under Rule 65 of the Rules of Court will prosper only if
there is a showing of grave abuse of discretion or an act with-
out or in excess of jurisdiction on the part of the National Labor
Relations Commission. It does not include an inquiry as to the
correctness of the evaluation of evidence which was the basis of
the labor official or officer in determining his conclusion. It is
not for this Court to re-examine conflicting evidence, re-evalu-
ate the credibility of witnesses nor substitute the findings of
fact of an administrative tribunal which has gained expertise
in its special field. Considering that the findings of fact of the
labor arbiter and the NLRC are supported by evidence on record
235
the same must be accorded due respect and finality.
The Court of Appeals is authorized to receive evidence in origi-

nal special civil actions for certiorari, prohibition and mandamus
under Rules 46 and 65 of the Rules of Court.
236
In Bascon v. Court of Appeals, the Court held that:
"As a general rule, the findings of facts of the NLRC are

deemed binding and conclusive upon the Court. We have re-
peatedly said that the Court is not a trier of facts. Thus, resort
to judicial review of the decisions of the NLRC in a special civil
action for certiorari under Rule 65 of the Rules of Court is
generally limited to the question of grave abuse of discretion
amounting to lack or excess of jurisdiction. However, where, as
in the instant case, the findings of facts of the NLRC contradict
^ E d g a r Agustilo v. CA, 364 SCRA 740, September 7, 2001.

234
283 SCRA 275, 284.
236
Republic of the Philippines v. Express Telecommunications Co., Inc., G.R.
147096, January 15, 2002, 373 SCRA 316.
236
4 2 2 SCRA 122 (2004).
311
VOL. Ill
those of the Labor Arbiter, a departure from the general rule is

warranted. Thus, the Court may look into the records of the
case and re-examine the questioned findings. Where the NLRC
and the Labor Arbiter disagree on their finding of facts, the
Court can review the records to determine which findings should
be preferred as more conformable to the evidentiary facts.
In St. Martin Funeral Home v. NLRC we held that the
special civil action of certiorari is the mode of judicial review of
the decisions of the NLRC either by this Court or the Court of
Appeals, but the latter court is the more appropriate forum in
strict observance of the doctrine on the hierarchy of courts and
that, in the exercise of this power, the Court of Appeals can
review the factual findings or the legal conclusions of the NLRC.
It would seem from the foregoing rationalization that inquiry

into the findings of fact from the NLRC are similar to the excep-
tional cases where the Supreme Court may inquire into questions of
fact although the pronouncements of the Supreme Court on the
matter were in petitions for review under Rule 45 (See also Chiang
Kai Shek College v. Court of Appeals, G.R. No. 152988, August 24,
2004). So far as the NLRC are concerned jurisdiction to review its
decisions was held in St. Martin Funeral Home v. NLRC (295 SCRA
494 [1988]) via Rule 65 to the Court of Appeals "in strict observance
on the hierarchy of courts as the appropriate forum for the relief
desired."
It has been held an extraordinary remedy, a petition for certio-
rari is available only and restrictively in truly exceptional cases. It
is settled that resort to judicial review of the decisions of the NLRC
in a petition for certiorari under Rule 65 of the Revised Rules of
Court is confined only to issues or want or excess of jurisdiction or
grave abuse of discretion on the part of the rendering tribunal, board
or office. It does not include an inquiry as to the correctness of the
evaluation of the evidence which was the basis of the labor official in
237
determining is conclusion.
M7
O d a n g o v. NLRC, 431 SCRA 633, June 10, 2004; German Machineries Corpo-
ration v. Endaya, G.R. No. 156810, November 2 5 , 2 0 0 4 , 4 4 4 SCRA 329; Garcia v. NLRC,
G.R. No. 147427, February 7, 2005.
312
238
However, in Garcia v. NLRC, while the court agreed with the
ruling of the CA that in a petition for certiorari under Rule 65 of the
Rules of Court, only errors of jurisdiction and grave abuse of discretion
amounting to excess or lack of jurisdiction are ascribed to the lower
courts or quasi-judicial tribunals, and to the general rule that
certiorari does not lie to review errors of judgment of the trial court,
as well as that of a quasi-judicial tribunal does not go as far as to
examine and assess the evidence of the parties and to weigh the
probative value thereof which are proper only in an ordinary appeal,
239
the court, however, pointed to Ong v. People, ruling that certiorari
can be properly resorted to where the factual findings complained of
are not supported by the evidence on record, to Gutib v. Court of
240
Appeals, on the wide breath of discretion granted a court of justice
in certiorari proceedings guided by all the circumstances of each
particular case "as the ends of justice may require." So it is that the
writ will be granted where necessary to prevent a substantial wrong
241
or to do substantial justice, and Globe Telecom v. Florendo-Flores
holding that occassionally the Court is constrained to delve into
factual matters where, the findings of the NLRC contradict those of
242
the Labor Arbiter.
55. Not a l l o w e d to delay e x e c u t i o n

Where the petition for certiorari was obviously intended to
243
frustrate the judgment by delaying execution, it cannot be granted.
56. Allowed against order granting petition for relief

Certiorari from an order granting a petition for relief under
Rule 38 maybe availed of instead of appeal where the trial of the
ejectment suit has become protracted as a result of delaying tactics
244
employed by the lessee defendant.
238
G.R. No. 147427, February 7, 2005.
239
3 4 2 SCRA 372 (2000).
240
3 1 2 SCRA 3 6 5 ( 1 9 9 9 ) .
241
3 9 0 SCRA 201 (2002). It may, however, be observed that the circumstances
mentioned refer to situations where the Supreme Court may review questions of fact
in a petition for review under Rule 45 which generally is confined only to questions of
law.
^ G a r c i a v. NLRC, Id.
^ C o r t e z v. Villaluz, 24 SCRA 146.
244
D e Dios v. Jarencio, 76 SCRA 505.
313
VOL. Ill
57. Where decision is null and void

Where the decision was null and void as the commission had no
jurisdiction to set aside the referee's decision that had already be-
245
come final or the judge refused to impose the death penalty, certio-
246
rari is available even if appeal was already perfected.
58. Denied due course but indicates w h a t should be

done
The Supreme Court may dismiss a petition to correct an al-
leged error without giving it due course and merely indicate what
247
should be done.
59. Third-party claim as a d e q u a t e r e m e d y
The filing of a third-party claim either under Section 14, Rule
57 or Section 17, Rule 39 is a plain, speedy and adequate remedy in
the ordinary course of law where the property attached belongs to a
248
third person.
60. Allowed to set aside sale or e x e c u t i o n

The remedy against any ruling on the question of whether or
not the execution sale be set aside, is a petition for certiorari, not an
appeal, in which the issue of grave abuse discretion may be venti-
lated. The judgment has already become final and to require peti-
tioner to go through an appeal from the former presiding judge,
would necessarily prolong the litigation. A Superior Court is justi-
fied to interpose its supervisory authority through the extraordinary
remedies of Certiorari, Prohibition or Mandamus when the petition-
er's claim is clearly tenable or when the broader interest of justice or
249
public interest requires it.
61. Allowed against 4th m o t i o n for reconsideration

A petition for certiorari is proper where the petitioner assails
the jurisdiction and/or the exercise of sound discretion of the Court
^Pajarillo v. WCC, 95 SCRA 582.

^ P e o p l e v. Veneration, 249 SCRA 244, October 12, 1995.
M7
L e g a s p i v. Avendano, 79 SCRA 135.
^ R o q u e v. Court of Appeals, 93 SCRA 540.
^ G a m b o a v. Ruiz, 108 SCRA 1.
314
of Appeals in taking cognizance of 4th motion for reconsideration

250
filed by appellant when the CA decision had already become final.
62. Disregard of requirement of search warrant

Certiorari is available in case of disregard of the requirements
251
of a search w a r r a n t or where the order is a patent nullity despite
252
the availability of appeal; or where it cannot afford an adequate
253
and expeditive relief.
63. Courts n o t to interfere w i t h administrative matters

254
Certiorari may issue against an administrative body.
The remedy to set aside an order or decision of the PHHC is
certiorari or prohibition, not a review or a direct action for specific
performance. But an action for Certiorari or prohibition will not lie
unless there is grave abuse of discretion, a court of justice will not
interfere with purely administrative matters addressed to the sound
255
discretion of government agencies.
Courts will not substitute their own judgments on factual find-
256
ings of an administrative officer in land cases. Certiorari is not
available where there are administrative remedies from the decision
of the Secretary, i.e., there is still appeal to the President which
257
much first be exhausted. The doctrine of Alter ego was debunked.
64. F i l i n g of s u p e r s e d e a s b o n d as r e m e d y
The filing of supersedeas bond to stay execution pending ap-
peal is not a matter of right and is not therefore a plain speedy and
258
adequate remedy.
^ P e o p l e v. CA, 101 SCRA 450.

251
Marcelo v. De Guzman, 114 SCRA 653.
^Supra.
253
J a c a v. Davao Lumber, 113 SCRA 107.
254
Meralco v. Central Board of A s s e s s m e n t Appeals, 114 SCRA 260; See also
Caltex v. Central Board of A s s e s s m e n t Appeals, 114 SCRA 296.
^ R a y m u n d o v. PHHC, 114 SCRA 712.
^ A g g a b a o v. Gamboa, 116 SCRA 280 (1982).
^ T a n v. Director of Forestry, 125 SCRA 302.
V a l e n c i a v. Court of Appeals, 184 SCRA 561 (1990); this, modifies PVTA v.
Lucero, 125 SCRA 302, holding that certiorari is not available when another remedy
can be availed of such as the filing of a supersedeas bond to stay execution pending
appeals under Rule 39.
315
VOL. Ill
65. Allowing expired appeal is grave abuse of discre-

tion
The perfection of an appeal within the statutory or reglementary
period is mandatory and jurisdictional, and the failure thereof renders
final and executory the questioned decision and deprives the appel-
late court of jurisdiction to entertain the appeal. A judge commits a
grave abuse of discretion, amounting to a lack of jurisdiction in
259
giving due course to an appeal where the appeal period had expired.
66. Granting affirmative relief to a p p e l l e e is grave

abuse
Whenever an appeal is taken in a civil case, an appellee who
has not himself appealed cannot obtain from the appellate court any
affirmative relief other than the ones granted in the decision of the
court below. It is thus a grave abuse of discretion amounting to lack
of jurisdiction (and in disregard of said rule) on the part of the Court
of Appeals to increase the award for moral damages from P30,000 to
P50,000 notwithstanding the fact that appellee did not appeal from
260
the judgment of the trial court.
67. Certiorari and not appeal is the remedy against an order
granting a writ of possession in expropriation proceedings since this
261
is a mere interlocutory order.
A writ of certiorari is an equitable relief and the court may
withhold the same when the ends of justice and equity would not be
262
served thereby.
SEC. 2. Petition for prohibition. When t h e proceed-

ings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial func-
259
S e m b r a n o v. Ramirez, 166 SCRA 30, 28 Sept. 1988.
260
Filinvest Credit Corporation v. Intermediate Appellate Court, G.R. No. 65935,
30, September 1 9 8 8 , 1 6 6 SCRA 155. There are, however, cases where the court granted
the appellee legal interest (Ines v. Court of Appeals, 248 SCRA 312), Attorney's fees
{Supra, Fores v. Miranda, 105 Phil. 266), cited in Encilla v. Magsaysay, 17 SCRA 125,
increased exemplary damages; Ecjaus v. Court of Appeals, 187 SCRA 673; See also
Kapalaran Bus Line v. Coronado, 176 SCRA 792; See Vol. 2, Rule 51, Sec. 4, cases cited
therein).
^'City of Manila v. Serrano, 359 SCRA 2 3 1 , June 20, 2001.
M2
V d a . de Rapisura v. Nicolas, 16 SCRA 798.
316
tions, are w i t h o u t or in e x c e s s of its or his jurisdiction, or

w i t h grave a b u s e of discretion a m o u n t i n g to lack or excess
of jurisdiction, a n d there is no appeal or any other plain,
speedy, a n d a d e q u a t e r e m e d y in t h e ordinary course of law, a
person a g g r i e v e d t h e r e b y m a y file a verified petition in the
proper court, alleging t h e facts w i t h certainty and praying
that j u d g m e n t be r e n d e r e d c o m m a n d i n g t h e respondent to
desist from further p r o c e e d i n g s in t h e action or matter speci-
fied therein, or o t h e r w i s e g r a n t i n g s u c h incidental reliefs as
l a w a n d j u s t i c e m a y require.
The p e t i t i o n shall l i k e w i s e be a c c o m p a n i e d by a certi-
fied true copy of t h e j u d g m e n t , order or resolution subject
thereof, c o p i e s of all p l e a d i n g s a n d d o c u m e n t s relevant and
p e r t i n e n t thereto, a n d a s w o r n certification of non-forum
s h o p p i n g as p r o v i d e d in t h e last paragraph of Section 3, Rule
46. (2a)
COMMENT:
1. Source of Rule
SEC. 2. Petition for prohibition. When the proceedings of
any tribunal, corporation, board, or person, whether exercising func-
tions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant to desist from fur-
ther proceedings in the action or matter specified therein.
The petition shall be accompanied by a certified true copy of the
judgment or order subject thereof, together with copies of all plead-
ings and documents relevant and pertinent thereto.
2. Change in the Rule

The present Rule expressly included not only any tribunal,
board, or officer exercising judicial or ministerial functions, but also
quasi-judicial functions, and not only praying that judgment be ren-
317
VOL. Ill
dered commanding the respondent to desist from further proceed-

ings in the action or matter specified therein, but also "or otherwise
granting such incidental reliefs as law and justice may require."
A sworn certification of non-forum shopping as provided in
the last paragraph of Section 3, Rule 46 forms part of the require-
ments.
3. Notes and Cases
a. Definition
Prohibition is a writ by which a superior court prevents infe-
rior courts, a corporation, board or persons from usurping or exercis-
ing, a jurisdiction or a power with which they have not been vested
1
by law.
Prohibition is that process by which a superior court prevents
an inferior court or tribunal possessing judicial or quasi-judicial
powers from exceeding its jurisdiction in matters over which it has
cognizance or usurping matters not within its jurisdiction to hear or
2
determine. A writ issued by a superior court directed to the judge
and parties of a suit in an inferior court, commanding them to cease
from the prosecution of the same, upon a suggestion t h a t the cause
originally, or some collateral matter arising therein, does not belong
3
to that jurisdiction, but to the cognizance of some other court.
b. The Writ m a y n o t i s s u e for a c t s a l r e a d y accom-

plished
The function of the writ of prohibition is to prevent the doing of
some act which is about to be done. It is not intended to provide a
4
remedy for acts already accomplished.
b.l Prohibition, however, will give complete relief not only by
preventing what remains to be done but by undoing what has been
done. Thus, an information filed after the expiration of the lifetime
J
Mataguina Integrated Wood Products, Inc. v. Court of Appeals, 263 SCRA 490
(1996).
2The Florida Bar, Fla., 329 So 2d 301, 302.
3
P. 1091, BLACK'S LAW DICTIONARY, Fifth Edition.
4
Cabanero v. Torres, 61 Phil. 522 (1935); Agustin, et al. v. de la Fuente, 84 Phil.
515 (1949); Navarro v. Lardizabal, 25 SCRA 370, September 2 8 , 1 9 6 8 ; Heirs of Eugenia
v. Roxas, Inc. v. Intermediate Appellate Court, 173 SCRA 5 8 1 , May 29, 1989.
318
of the TRO but while the case for prohibition was still pending was
declared invalid after it was determined that the Regional State
Prosecutor is without authority to conduct the preliminary investi-
5
gation.
The pendency of the special civil action for prohibition before
the trial court did not interrupt the investigation. It goes without
saying, however, t h a t in proceeding with the preliminary investiga-
tion and terminating the same, the prosecutor did so subject to the
outcome of the petitions for prohibition. In this case, the RTC granted
the petition of petitioner, declared the prosecutor bereft of authority
to take over the preliminary investigation and nullified the prelimi-
nary investigation conducted by the prosecutor as well as the Infor-
mation thereafter filed by him. The RTC is possessed of residual
power to restore the parties to their status before the prosecutor
proceeded with the preliminary investigation, and grant in favor of
the aggrieved party such other relief as may be proper.
Jurisprudence has it that prohibition will give complete relief
not only by preventing what remains to be done but by undoing
what has been done. The Court has authority to grant any appropri-
ate relief within the issues presented by the pleadings of the parties:
Generally, the relief granted in a prohibition proceeding is gov-
erned by the nature of the grievance proved and the situation at the
time of judgment. Although the general rule is that a writ of prohibi-
tion issues only to restrain the commission of a future act, and not to
undo an act already performed, where anything remains to be done
by the court, prohibition will give complete relief, not only by pre-
venting what remains to be done but by undoing what has been done.
Under some statutes, the court must grant the appropriate relief
whatever the proceeding is called if facts stating ground for relief
are pleaded. Although prohibition is requested only as to a particular
matter, the court has authority to grant any appropriate relief within
the issues presented by the pleadings. If the application for prohibi-
tion is too broad, the court may mould the writ and limit it to as
much as is proper to be granted. In the exercise of its jurisdiction to
issue writs, the court has, as a necessary incident thereto, the power
to make such incidental order as may be necessary to maintain its
jurisdiction and to effectuate its final judgment. The court may re-
5
Aurillo, Jr. v. Rabi, 392 SCRA 595, November 26, 2002.
319
VOL. Ill
tain jurisdiction of the cause to enable it to make an appropriate

order in the future, even though the petition for a writ of prohibition
is dismissed.
Hence, the RTC did not commit any error in nullifying not only
the preliminary investigation by the Office of the Regional State
Prosecutor for want of authority but also the Information approved
6
by the State prosecutor and filed with the Regional Trial Court.
4. Distinguished from Certiorari

A special civil action for certiorari is an original or independent
action and not a continuation or a part of the trial resulting in the
7
rendition of the judgment complained of Palomares v. Jimenez. The
same holds true in case of a special civil action for prohibition. These
writs may be issued by the Supreme Court, the Court of Appeals and
8
the Regional Trial Court.
In a special civil action for certiorari, the petitioner seeks to
annul or modify the proceedings of any tribunal, board, or officer
exercising judicial functions that has acted without or in excess of
9
jurisdiction, or with grave abuse of discretion. On the other hand, in
a petition for prohibition directed against any tribunal, corporation,
board, or person whether exercising judicial, or ministerial func-
tions who has acted without or in excess of jurisdiction or with grave
abuse of discretion, the petitioner prays t h a t judgment be rendered
commanding the respondent to desist from further proceeding in the
10
action or matter specified in the petition.
Certiorari is intended to annul proceedings whereas PROHIBI-
TION is intended to prevent a power about to be exercised without
jurisdiction.
One is a corrective remedy and refers to acts already consum-
mated; the other is preventive to restrain the doing of some act
11
which is about to be done.
6
Aurillo, Jr. v. Rabi, G.R. No. 120014, November 26, 2002, 392 SCRA 595.
7
9 0 Phil. 773, 776 (1952).
8
Art. X, Sec. 5(1) of the 1987 Constitution and Sees. 9(1) and 21(1) of Batas
Pambansa Big. 129.
9
Rule 65, Sec. 1.
10
Rule 65, Sec. 2.
"Cabanero v. Torres, 61 Phil. 522.
320
The rule does not require the inclusion of a private party as

12
respondent in petitions for prohibition.
Distinguished from Mandamus the latter is an affirma-
tive remedy commanding certain things to be done whereas the
former is a negative remedy which forbids the doing of certain things
which ought not be done.
The object of prohibition is to prevent one from executing or
continuing to execute an act, mandamus has for its object to compel
compliance with a function which the law prescribes as a duty re-
sulting from an office, trust or station.
Distinguished from Injunction the latter usually recog-
nizes the jurisdiction of the Court before which the proceeding is
13
pending, prohibition strikes at once to the jurisdiction of the Court.
5. R e m e d y Against Denial of P e t i t i o n
From a denial of a petition for certiorari and prohibition by the
trial court, the losing party's remedy is an ordinary appeal to the
Court of Appeals by filing a notice of appeal with the court that ren-
dered the judgment or order appealed from. (Sec. 20, Interim Rules
of Court). Failure to appeal within fifteen (15) days from rendition of
14
judgment renders the appealed decision final and executory.
6. Concept; F u n c t i o n of Prohibition
The office of the extraordinary remedy of prohibition is not to
correct errors of judgment but to prevent or restrain usurpation by
inferior tribunals and to compel them to observe the limitation of
their jurisdictions. It is a preventive remedy. Its function is to re-
strain the doing of some act about to be done. It is not intended to
provide a remedy for acts already accomplished. This remedy will lie
only to "prevent an encroachment, excess, usurpation, or improper
assumption of jurisdiction on the part of an inferior court of tribu-
nal, or to prevent some great outrage upon the settled principles of
law and procedure; but if the inferior court or tribunal has jurisdic-
12
Yao v. Perello, G.R. No. 153828, October 24, 2003, 414 SCRA 474.
13
H I G H ' S EXTRAORDINARY LEGAL REMEDIES, 3rd Ed., p. 706.
"Eleuterio C. Perez v. Court of Appeals and the People of the Philippines, 168
SCRA 236, November 29, 1988.
321
VOL. Ill
tion over the person and subject matter of the controversy, the writ
will not lie to correct errors and irregularities in procedure, or to
prevent an erroneous decision or an enforcement of an erroneous
judgment, or even in cases of encroachment, usurpation, and abuse
of judicial power or the improper assumption or jurisdiction, where
an adequate and applicable remedy by appeal, writ of error, certio-
rari, or other prescribed methods of review are available." It may be
safely asserted as a settled law, that "unless the court sought to be
prohibited is wanting in jurisdiction over the class of cases to which
the pending case belongs or is attempting to act in excess of its
jurisdiction in a case of which it rightfully has cognizance, the writ
15
will be denied."
7. Object of Prohibition
Its principal purpose is to prevent an encroachment, excess,
usurpation or assumption of jurisdiction on the part of an inferior
court or tribunal. (42 Am. Jur. 140) The writ is granted where it is
necessary for the orderly administration of justice, or to prevent the
use of the strong arm of the law in an oppressive or vindictive man-
16
ner or a multiplicity of actions.
A writ of prohibition will not issue, unless it appears t h a t the
party against whom it is sought has acted without or in excess of
jurisdiction or with grave abuse of discretion, and t h a t there is no
appeal or any other plain, speedy and adequate remedy in the ordi-
17
nary course of law.
In a certiorari or prohibition case, only issues affecting the
jurisdiction of the tribunal, board and office involved may be re-
18
solved on the basis of undisputed facts.
8. Meaning of Grave Abuse of Discretion

In order that the claim of abuse of discretion may be enter-
tained, it must be shown that there was such a capricious and whim-
16
Vergara v. Ruque, 78 SCRA 312, 329-330; See also Heirs of Eugenia Roxas,
Inc. v. IAC, supra.
16
Dimayuga v. Fernandez, 43 Phil. 304; Aglipay v. Ruiz, 64 Phil. 201.
17
L i m v. Sabarre, 24 SCRA 76 (1968); Solidum v. Hernandez, 7 SCRA 320, Feb.
28,1963.
18
Mafinco Trading Corporation v. Ople, 70 SCRA 139, cited in Mataguina Inte-
grated Wood Industries v. Court of Appeals, 263 SCRA 490 (1996).
322
sical exercise of judgment, equivalent to lack of jurisdiction. In other

words, prohibition must be issued only after the reviewing tribunal
shall have convinced itself that the lower court has exercised its
power in an arbitrary or despotic manner, by reason of passion or
personal hostility, and it must be so patent and gross as would
amount to an evasion, or to a virtual refusal, to perform the duty
19
enjoined by law.
9. Illustrative Cases
(a) The remedy lies when a court denies a motion to dismiss
20
for lack of jurisdiction. The writ will not lie where an inferior court
has jurisdiction independent of the statue the constitutionality of
which is questioned because in such cases, the inferior court having
jurisdiction may itself determine the constitutionality of the statute
21
and its decision is subject to review.
(b) The writ will not issue where it does not appear that want
of jurisdiction was pleaded in the Court whose action is sought to be
prohibited.
(c) A special civil action of prohibition is proper only upon a
showing that the aggrieved party has no remedy on appeal or any
other plain, speedy and adequate remedy in the ordinary course of
22
law.
(d) Prohibition was issued to restrain the criminal proceed-
23
ings against a CFI judge. The doctrine that there is no time frame
for filing petition for certiorari or prohibition, but may be filed within
24
a reasonable period, is no longer true. Under Sec. 4 hereof the
period is sixty (60) days.
(e) The function of prohibition is to'prevent an unlawful exer-
cise of jurisdiction. Where respondent court overlooked that there
was no usurpation of jurisdiction and granted the petition for prohi-
19
Solidum v. Hernandez, supra; Tavera-Luna, Inc. v. Nable, 67 Phil. 340; and
Alafriz v. Nable, 72 Phil. 278; Apurillo v. Garciano, 28 SCRA 1054.
20
S u m m i t Guaranty and Insurance Co., Inc. v. Arnaldo, 158 SCRA 332.
"People v. Vera, 65 Phil. 56.
22
Capistrano v. Pena, 78 Phil. 749.
^Fortun v. Labang, 104 SCRA 607.
M
C u b a r v. Mendoza, 120 SCRA 768.
323
VOL. Ill
bition against the Ministry of Natural Resources without regard to

the injunction embodied in PD 605 which provides that "No court of
the Philippines shall have jurisdiction to issue any restraining or-
der, preliminary injunction or preliminary mandatory injunction in
any case involving or growing out of the issuance, approval or disap-
proval, revocation or suspension of, or any action whatsoever by the
proper administrative official or body on concessions, licenses, per-
mits, patents, or public grants of any kind in connection with the
disposition, exploitation and/or development of the natural resources
25
of the Philippines, the writ of prohibition may issue.
Where the facts doubtlessly present a question of jurisdiction,
it follows that the proper, speedy and adequate remedy is the special
civil action of prohibition. It is a settled rule that prohibition is the
proper remedy to afford relief against usurpation of jurisdiction or
power by an inferior court, or when, in the exercise of jurisdiction in
handling matters clearly within its cognizance the inferior court
transgresses the bounds prescribed to it by the law, or where there is
no adequate remedy available in the ordinary course of law by which
such relief can be obtained. The purpose of a writ of prohibition is to
keep a lower court within the limits of its jurisdiction in order to
26
maintain the administration of justice in orderly channels.
Prohibition is the remedy to correct an erroneous assumption
of jurisdiction where: two tribunals exercised jurisdiction over two
cases involving the same subject matter, issue, and parties, and
ultimately rendered conflicting decisions. Thus, the MCTC manifestly
took cognizance of the case for ejectment pursuant to Section 33 of
Batas Pambansa Bilang 129 as amended. On the otherhand, the
ratiocination of the DARAB, which the respondent echoes, is that
the case falls squarely within its jurisdiction as it arose out of, or
was connected with, agrarian relations. The respondent also points
out that his right to possess the land, as a registered tenant, was
submitted for determination before the PARAB prior to the filing of
27
the case for ejectment.
"Strong v. Castro, 137 SCRA 322.
^David v. Rivera, G.R. Nos. 139913 and 140159, January 16, 2004, 4 2 0 SCRA
"Surpa.
324
While appeal is the recognized remedy to question the judgment

of an inferior court, this does not detract from the authority of a
higher court to issue writ of prohibition to restrain the inferior court,
among other instances, from proceeding further on the ground that
it heard and decided the case without jurisdiction. Since the right to
prohibition is defeated not by the existence, but by the adequacy, of a
remedy by appeal, it may accordingly be granted where the remedy
28
by appeal is not plain, speedy or adequate.
SEC. 3. Petition for mandamus. When any tribunal,

corporation, board, officer or p e r s o n unlawfully neglects the
performance of an act w h i c h t h e l a w specifically enjoins as a
duty r e s u l t i n g from an office, trust, or station, or unlawfully
e x c l u d e s a n o t h e r from t h e u s e a n d enjoyment of a right or
office to w h i c h s u c h other is entitled, a n d there is no other
plain, s p e e d y a n d a d e q u a t e r e m e d y in t h e ordinary course of
law, t h e p e r s o n a g g r i e v e d t h e r e b y m a y file a verified peti-
tion in t h e proper court, alleging the facts w i t h certainty
a n d p r a y i n g that j u d g m e n t be r e n d e r e d c o m m a n d i n g the re-
spondent, i m m e d i a t e l y or at s o m e other time to be specified
by t h e court, to do t h e act required to be done to protect the
rights of t h e petitioner, a n d to pay t h e d a m a g e s sustained by
t h e petitioner by r e a s o n of t h e wrongful acts of the respond-
ent.
The p e t i t i o n shall also c o n t a i n a s w o r n certification of
non-forum s h o p p i n g as provided in t h e third paragraph of
Section 3, Rule 46. (3a)
COMMENT:
1. Source of Rule
Taken from Section 3 of the former Rule
2. Change in Rule
No substantial change. The term "respondent" was used in-
stead of "defendant" and the requirement for the Sworn certification
of non-forum shopping.
ûrpa.
325
VOL. Ill
3. Notes and Cases

Mandamus (Lat. "We Command.")
a. Defined
Mandamus is a writ issued in the name of the State, to an
inferior tribunal, a corporation, board or person, commanding the
performance of an act which the law enjoins as a duty resulting from
1
an office, trust or station.
b. Purpose of m a n d a m u s
Mandamus is employed to compel the performance, when re-
fused, of a ministerial duty, this being its main objective. It does not
lie to require anyone to fulfill a contractual obligation or to compel a
2
course of conduct, nor to control or review the exercise of discretion.
c. Grounds to Issue
Under Rule 65, Section 3 of the Rules of Court, mandamus lies
under any of the following cases: (1) against any tribunal which
unlawfully neglects the performance of an act which the law specifi-
cally enjoins as a duty; (2) in case any corporation, board or person
unlawfully neglects the performance of an act which the law enjoins
as a duty resulting from an office, trust or station; and (3) in case
any tribunal, corporation, t)oard or person unlawfully excludes an-
other from the use and enjoyment of a right or office to which such
other is legally entitled; and there is no other plain, speedy and
adequate remedy in the ordinary course of law.
Mandamus will lie to compel a judge or other public officer to
perform a duty specifically enjoined by law once it is shown t h a t the
judge or public officer has unlawfully neglected the performance
thereof. A court neglects the performance of its duties only after
3
demand has been made upon it, refuses to perform the same.
*3 Moran, 1980 Ed.

^ a n g o n a n v. Pano, 137 SCRA 245.
3
Mayuga v. Court of Appeals, 261 SCRA 309, August 30, 1996.
326
d. There must be Clear Legal Right and Imperative

Duty
The nature of mandamus has been the subject of discussions in
several cases. It is settled that mandamus is employed to compel the
performance, when refused, of a ministerial duty, this being its main
objective. It does not lie to require anyone to fulfill contractual obli-
gations or to compel a course of conduct, nor to control or review the
exercise of discretion. On the part of the petitioner, it is essential to
the issuance of a writ of mandamus t h a t he should have a clear legal
right to the thing demanded and it must be the imperative duty of
the respondent to perform the act required. It never issues in doubt-
ful cases. While it be absolutely expressed, it must however, be clear.
The writ will not issue to compel an official to do anything which is
not his duty to do or which is his duty not to do, or to the applicant
anything to which he is not entitled by law. The writ neither confers
powers nor imposes duties. It is simply a command to exercise a
4
power already possessed and to perform a duty already imposed.
1. There must be a clear legal right. If there is discretion as
to the taking or non-taking of the action sought there is no clear
5
legal duty, mandamus will not lie.
e. Ministerial d u t y d i s t i n g u i s h e d from discretionary

Ministerial duty is t h a t which is so clear and specific as to
6
leave no room for the exercise of discretion in its performance.
Discretionary duty, is that which by its nature requires the exercise
1
of judgment.
"Purely ministerial" are acts to be performed in a given state of
facts, in a prescribed manner, in obedience to the mandate of legal
authority without regard to the exercise of his own judgment upon
8
the propriety or impropriety of the act done.
'University of San Agustin v. Court of Appeals, 230 SCRA 761 (1994); BPI Fam-
ily Savings Bank, Inc. v. Manikan, G.R. No. 148789, July 16, 2003, 404 SCRA 373.
5
Pacheco v. CA, G.R. No. 124863, June 19, 2000, 333 SCRA 680.
6
Compania General de Tabacos v. French, 39 Phil. Reports 34 (1918).
7
Rodriguez v. De la Rosa, CA-G.R. SP-00542, Oct. 27, 1971.
8
Lamb v. Phipps, 22 Phil. 489.
327
VOL. Ill
How and when a duty is to be done is "discretionary" When

the discharge of the duty requires neither the exercise of official
9
discretion or judgment, it is "ministerial."
"Discretion," when applied to public functionaries, means a
power or right conferred upon them by law of acting officially, under
certain circumstances, according to the dictates of their own judg-
ments and conscience, uncontrolled by the judgments or conscience
of others. A purely ministerial act or duty, in contradistinction to a
discretional act, is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of his
own judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer, and gives him the right
to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when
the discharge of the same requires neither the exercise of official
10
discretion nor judgment.
However, while the Court cannot substitute its own judgment
11
it decides whether the duty is discretionary or ministerial.
Where it is discretionary, the officer, board or tribunal, maybe
12
compelled to act, but not to act in a particular manner.
The court's duty is sometimes ministerial and sometimes dis-
13
cretionary.
6. Function of Writ of M a n d a m u s
To direct any board, tribunal or person to perform an act which
the law specifically enjoins as a duty resulting from an office, trust
14
or station.
7. When Writ m a y Issue
Two pertinent principles are well-settled in this jurisdiction:
(a) one is that mandamus would lie only to compel a tribunal, board
9
Ibid.
10
Lemi v. Valencia, 26 SCRA 204; Lamb v. Phipps, supra; Meralco Securities v.
Savellano, 117 SCRA 804; Vide Calderon v. Solicitor General, 215 SCRA 876 (1992).
u
V i u d a de Hijos de Crisplo Zamora v. Wright, 53 Phil. 613.
l2
Castro Revilla v. Garduno, 53 Phil. 934; Montalbo v. Santamaria, 54 Phil. 955.
13
PALEAv. PAL, 111 SCRA 215.
14
Reyes v. Zamora, 90 SCRA 92.
328
or officer to comply with a purely ministerial duty, or to allow a

party to exercise a right or to occupy and enjoy the privileges of an
office to which he is lawfully entitled; (b) the other is that for the
writ of mandamus to issue, petitioner must establish a clear right to
the relief sought, and a mandatory duty on the part of the respond-
15
ent in relation thereto.
It is essential, for a writ of mandamus to issue, that the plain-
tiff has a legal right to the thing demanded and that it is the impera-
16
tive duty of the defendant to perform the act required. The legal
right of the plaintiff to the thing demanded must be well-defined,
17
clear and certain. The corresponding duty of the defendant to per-
18
form the required act must also be clear and specific. Mandamus
will not issue in doubtful cases, as it simply commands the exercise
19
of a power already possessed or to perform a duty already imposed.
20
Mandamus will lie to compel action, or to remedy official inaction.
8. Legal Right Must be Clear a n d Complete

It is well-settled that the legal right of the petitioner to the
performance of the particular act which is sought to be compelled
must be clear and complete. A clear legal right within the meaning
of this rule means a right which is clearly founded in, or granted by
law; a right which is inferable as matter of law. It is essential that
the claim should have been allowed by the officer vested with power
to allow or reject it. Mandamus will not be awarded unless the right
to relief is clear at the time of the award. If there is any discretion as
to the taking or non-taking of the action sought to be enforced, then
there is no clear case of legal right. Nor will mandamus issue to
enforce a right which is in substantial dispute or as to which a
substantial doubt exists, although objections raising mere technical
15
Yuvienco v. Canonoy, 39 SCRA 597 (1971).
16
Gonzales v. Board of Pharmacy, 20 Phil. 367, 375.
17
Villamor, et al. v. Lacson, et al., 12 SCRA 418, Nov. 28, 1964.
18
Llanto v. Mohammad Ali Dimaporo, et al., 16 SCRA 599, March 31, 1966.
19
Alzate v. Aldana, et al., G.R. No. L-18085, May 31, 1963, 8 SCRA 219.
20
Gonzales v. Board of Pharmacy, Supra; Guanio v. Fenandez, 55 Phil. 814, 821;
Sanson v. Barrios, 63 Phil. 198, 204; Hipolito v. The City of Manila, et al., 87 Phil. 180;
Gocheco Brothers, Inc. v. Ycasiano, et al., G.R. No. L-5999, March 20, 1954; Alzate v.
Aldana, et al., supra; Bernabe v. Bolinas, et al., 18 SCRA 812 (1966); Lemi v. Valencia,
supra; Tamano v. Manglapus, 214 SCRA 587 (1992).
329
VOL. Ill
question will be disregarded if the right is clear and the case merito-
21
rious.
9. Duty Must be Enjoined by Law
22
Mandamus refers only to acts enjoined by law to be done. The
duty must be clear.
The duties to be enforced must be such as are clearly perempto-
rily enjoined by law or by reason of official station. If for any reason,
the duty to be performed is doubtful, the obligation is not regarded
as imperative, and the applicant will be left to his other remedies. It
is equally necessary that the respondent has the power to perform
the act concerning which the application for mandamus is made;
23
otherwise, the writ will not issue.
10. First Ground: Unlawful neglect in the performance of a
duty which the law specifically enjoins as a duty resulting from an
office, trust or station.
There must be a specific legal duty resulting from office, trust
or station.
The legal right of the plaintiff to the thing demanded must be
well-defined, clear and certain. The corresponding duty of the de-
24
fendant to perform the required act must be clear and specific.
11. Does not apply to enforce contractual obligations

It is settled rule that mandamus will lie only to compel the
performance of a ministerial duty but does not lie to require anyone
to fulfill contractual obligations. Only such duties as are clearly and
peremptorily enjoined by law or by reason of official station are to be
enforced by the writ. Whether MIAA will enter into a contract for
the provision of a coupon taxi service at the international airport is
entirely and exclusively within its corporate discretion. It does not
involve a duty the performance of which is enjoined by law and thus
25
this Court cannot direct the exercise of this prerogative.
21
Palileo v. Ruiz Castro, 85 Phil. 272.
22
Repacom v. Morfe, 120 SCRA 460.
23
Tabigue, et al. v. Duvall, 16 Phil. 324; Alzate v. Aldana, 8 SCRA 219.
24
S a g u n , et al. v. PHHC, 162 SCRA 411, J u n e 22, 1988.
25
G & S Transport Corporation v. CA, 382 SCRA 262, May 28, 2002.
330
Mandamus never lies to enforce the performance of a contrac-

tual obligation, the petitioner's remedy being an original action in
26
the CFI for specific performance.
REASON:
A contractual obligation is not a duty specifically enjoined by
27
law resulting from office, trust or station. Thus, Mandamus is not
the proper remedy for claims for backwages but an ordinary civil
28
action.
Second Ground: When the petitioner is unlawfully excluded
from the use and enjoyment of a right or office to which he is entitled.
E.g., Exclusion from lawful membership in a corporation. There
29
must be a clear legal right.
12. Who m a y file p e t i t i o n

Only a person aggrieved who must either be a natural or juridi-
cal person may file a petition for mandamus.
The relator in order to obtain a mandamus must allege and
show that the respondents are excluding him from the office or right
to which he is entitled, and t h a t the respondents are unlawfully
neglecting the performance of an act or acts which the law especially
30
enjoins as a duty resulting from their office, trust or station. The
writ will not be issued, at the instance of a stranger, having no
individual interest in the act to be done, for the purpose of control-
ling an administrative officer of the Government in the exercise of
his ordinary public duties, it not appearing that the case is one
where the public interest requires interference. Supervision over
the performance of public duties will ordinarily be left to the admin-
31
istrative authorities.
^ a m a r c o v. Cloribel, 23 SCRA 398; Namarco v. Cloribel, 22 SCRA 1033 (1988).

2 7
3 MORAN, p. 1 9 3 , 1 9 8 0 Ed.
^Manalo v. Gloria, 236 SCRA, September 1 , 1 9 9 4 .
^Kapisanan, etc. v. MRR Co., 88 SCRA 616; Vda. de Serra v. Salas, 30 SCRA
541.
^Benitez v. Paredes, 52 Phil. 1,14.
31
C o s t a s v. Aldanese, 45 Phil. 345.
331
VOL. Ill
13. Interest w h i c h applicant for mandamus must pos-

sess
13.a Private Right and Public Right Distinguished
As regards the degree of interest on the part of the relator
required to make him a proper party on whose information the
proceedings may be instituted, a distinction is taken between cases
where the extraordinary aid of mandamus is invoked merely for the
purpose of enforcing or protecting a private right, unconnected with
the public interest, and cases where the purpose of the application is
the enforcement of a purely public right, where the people at large
are the real parties in interest. While the authorities are somewhat
conflicting, yet the decided weight of authority supports the proposi-
tion that, when the relief is sought merely for the protection of
private rights, the relator must show some personal or special inter-
est in the subject matter, since he is regarded as the real party in
interest, and his right must clearly appear. Upon the other hand,
when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people
are regarded as the real parties-in-interest, and the relator at whose
instigation the proceedings are instituted need not show that he has
any legal or special interest in the result, it being sufficient to show
that he is a citizen and as such is interested in the execution of the
32
laws.
A private individual who seeks to procure the enforcement of a

public duty, such as the publication in the Official Gazette of Presi-
dential Decrees or Letters of Instructions is a real party-in-inte-
33
rest.
13.b Test of Sufficiency of Cause of action for mandamus

to compel to issue certificates of stock
Absent an allegation that the transfer of shares is recorded in
the stock and transfer book of respondent corporation, there is no
34
cause of action to compel issuance of certificates of stock.
32
Benitez v. Paredes and Dizon, 52 Phil. 1; Tanada v. Tuvera, 136 SCRA 27.
33
Tanada v. Tuvera, Ibid.
34
Vicente Ponce v. Alsons Cement Corp., G.R. No. 139802, Dec. 10, 2002, 393
SCRA 602.
332
14. Taxpayers' suit e x p l a i n e d

Considering the importance to the public of a suit assailing the
constitutionality of a tax, and in keeping with the Court's duty spe-
cially explicated in the 1987 Constitution to determine whether or
not the other branches of the Government have kept themselves
within the limits of the Constitution and the laws and that they
have not abused the discretion given to them the Supreme Court
may brush aside technicalities and take cognizance of the suit.
However, for the above rule to apply, it is exigent that the
taxpayer-plaintiff sufficiently show t h a t he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of judicial review,
he must specifically prove t h a t he has sufficient interest in prevent-
ing the illegal expenditure of money raised by taxation and that he
will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely
35
a general interest common to all members of the public.
Where the lease contract entered into between petitioner and
the city shows t h a t no public funds have been or will be used in the
construction of the market building, the plaintiff who is not a party
to the contract has no legal capacity to sue as a taxpayer questioning
36
the validity of the contract.
To constitute a taxpayer's suit, two requisites must be met,
namely, that public funds are disbursed by a political subdivision or
instrumentality and in doing so a law is violated or same irregular-
ity is committed, and that the petitioner is directly affected by the
37
alleged ultra vires act. The same pronouncement was made in
38
Kilosbayan, Inc. v. Guingona, Jr., where the Court also reiterated
its liberal stance in entertaining so-called taxpayer's suits, espe-
cially when important issues are involved. Standing should not even
35
B u g n a y Construction and Development Corporation v. Hon. Crispin C. Laron,
176 SCRA 240, August 10, 1989.
36
B u g n a y Construction and Development Corporation v. Laron, supra; Vide
Kilosbayan v. Morato, November 16, 1995, G.R. No. 118910, 246 SCRA 540.
37
B u g n a y Construction and Development Corp. v. Laron, 176 SCRA 240 (1989).
38
2 3 2 SCRA 110 (1994), reiterated in Tatad v. Garcia, Jr., 243 SCRA 436 (1995)
and Bagatsing v. Committee on Privatization, 246 SCRA 334 (1995).
333
VOL. Ill
be made an issue where, "since standing is a concept in constitu-

39
tional law and here no constitutional question is actually involved."
40
In a case, petitioner never referred to the purchase made by
the province as an illegal disbursement of public funds but focused
on the alleged fraudulent reconveyance of said property to the seller
because the price paid was lower than the prevailing market value
of neighboring lots. The first requirement, therefore, which would
make the petition a taxpayer's suit is absent. The only remaining
justification for petitioner's to be allowed to pursue this action is
whether it is, or would be, directly affected by the act complained of.
41
As we stated in Kilosbayan, Inc. v. Morato.
"Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been person-
ally injured by the operation of a law or by official action taken, but
by concerned citizens, taxpayers or voters who actually sue in the
public interest. Hence, the question in standing is whether such
parties have 'alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
42
for illumination of difficult constitutional questions.'"
Undeniably, as a taxpayer, petitioner would somehow be ad-
versely affected by an illegal use of public money. When, however, no
43
such unlawful spending has been shown, petitioners even as tax-
payer cannot question the transaction validly executed by and be-
tween the Province and Ortigas for the simple reason that it is not
privy to said contract. In other words, petitioner has absolutely no
44
cause of action, and consequently no locus standi, in the instant case.
15. Mandamus d o e s not lie in doubtful c a s e s

On the part of the party petitioner, it is essential to the issu-
ance of a writ of mandamus that he should have a clear legal right to
39
Kilosbayan, Inc. v. Morato, 246 SCRA 540 (1995).
40
T h e Anti-Graft League of the Philippines v. San Juan, 260 SCRA 250 (1996).
41
Supra.
"Citing Baker v. Carr, 369 U.S. 186, 7 L.Ed., 2d 633 (1962).
43
T h e Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 253.
"Supra; See, however Tolentino v. Commission on Elections, G.R. No. 14834,
January 21, 2004, 420 SCRA 438 on liberality of the rule on standing on matters of
transcendental interest.
334
the thing demanded and it must be the imperative duty of the re-
spondent to perform the act required. It never issue in doubtful
cases. While it may not be necessary that the duty be absolutely
expressed, it must however, be clear. The writ will not issue to com-
pel an official to do anything which it is not his duty to do or to which
it is his duty not to do, or to give to the applicant anything to which
he is not entitled by law. The writ neither confers powers nor im-
poses duties. It is simply a command to exercise a power already
45
possessed and to perform a duty already imposed.
16. Cases w h e r e m a n d a m u s w a s n o t allowed

Mandamus was refused in the following cases:
1. To compel a municipal treasurer to pay the back salaries
of several dismissed policemen if there is no ordinance appropriat-
46
ing the amount to cover their back salaries;
2. The determination of whether an applicant for a visa has
a non-immigrant status or whether his entry into the Philippines
47
would be contrary to public policy;
48
3. The grant or refusal of a motion to intervene;
4. The remedy of mandamus is available only to compel the
performance of a ministerial duty but not where the reinstatement
involves the exercise of sound judgment and discretion by the ap-
pointing party; absent a showing of a clear and certain right of
49
petitioner.
5. Mandamus does not lie to compel the Solicitor General to
represent respondent judge whose decision increasing bail has been
nullified by the Court of Appeals. The Solicitor General has discre-
50
tion to prosecute or defend a case.
17. Discretion of Constitutional Commissions

The discretion of a Constitutional Commission like the Civil
Service Commission cannot be controlled by mandamus. A^t most,
45
Tangonan v. Pano, 137 SCRA 245.
"Discanso v. Gatmaytan, 109 Phil. 916 (1960).
47
S y Ha v. Galang, 7 SCRA 797.
48
Morada v. Caluag, 5 SCRA 1128.
49
Marcelo v. Tantuico, Jr., 142 SCRA 439.
50
Calderon v. Solicitor General, 215 SCRA 876 (1992).
335
VOL. Ill
the Civil Service Commission can only be required to act in accord-

ance with the facts before it and applicable law and regulations and
not to decide for the petitioner or the private respondent or other-
wise. The Commission is precisely trying to carry out its duty and
51
must be given an opportunity to do so.
18. Mandamus to compel corporation to grant holiday
pay
Mantrade IFMMC v. Bacungan Mandamus is the appro-
52
priate remedy to compel the legal duty of a corporation to grant its

monthly salaried employees holiday pay.
True it is that mandamus does not lie to compel the perform-
ance of an act which the law does not clearly enjoin as a duty and
that mandamus is not proper to enforce a contractual obligation, the
remedy being an action for specific performance. In the case at bar,
however, in view of the aforecited subsequent decisions of the court
clearly defining the legal duty to grant holiday pay to monthly sala-
ried employees, mandamus is an appropriate equitable remedy.
19. To compel approval of record on appeal

If filed within the period, its approval is ministerial, compellable
by mandamus.
If filed beyond the period by reason of fraud, accident, mistake
or excusable negligence, its approval is DISCRETIONARY.
Courts cannot be compelled to approve an appeal filed out of
time. The writ of mandamus may not be issued to control the discre-
tion of a judge, being available only to compel him to exercise his
53
discretion or jurisdiction, thus, a judge cannot be compelled by
such special civil action to approve an appeal which was perfected
54
after the reglementary period to do so had expired.
20. Academic freedom of schools

A school may refuse to enroll a student for academic deficiency
51
Pintor v. Tan, Jr., G.R. No. 84022, September 2 0 , 1 9 8 8 , En Banc Minute Reso-
lution.
62
1 4 4 SCRA 510.
53
Phil. Air Lines Employees Association v. Phil. Air Lines, 111 SCRA 215.
M
V d a . de Crisologo v. Court of Appeals, 137 SCRA 2 3 1 .
336
and may not be compelled by mandamus to enroll her, for to grant

such relief would be doing violence to the academic freedom enjoyed
by the respondent school enshrined under Article XTV, Section 5
Par. 2 of our Constitution which mandates "that all institutions of
higher learning shall enjoy academic freedom." This institutional
academic freedom includes not only the freedom of professionally
qualified persons to inquire, discover, publish and teach the truth as
they see it in the field of their competence subject to no control or
authority except of rational methods by which truths and conclu-
sions are sought and established in these disciplines, but also the
right of the school or college to decide for itself, its aims and objec-
tives, and how best to attain them the grant being to institutions
of higher learning-free from outside coercion or interference save
possibly when the overriding public welfare calls for some restraint.
It has a wide sphere of autonomy certainly extending to the choice of
students. Said constitutional provision is not be construed in a nig-
gardly manner or in grudging fashion. That would be to frustrate its
55
purpose and nullify its intent.
Schools of learning are given ample discretion to formulate
rules and guidelines in the granting of honors for purposes of gradu-
ation. This is part of academic freedom. Within the parameters of
these rules, it is within the competence of universities and colleges
to determine who are entitled to the grant of honors among the
graduating students. Its discretion on this academic matter may not
be disturbed much less controlled by the courts unless there is grave
56
abuse of discretion in its exercise.
20.a. The primacy of a c a d e m i c freedom in regard to

higher institutions Includes Teaching Style.
Institutional academic freedom includes the right of the school
or college to decide for itself, its aims and objectives and the methods
55
Tangonan v. Pano, supra; See also University of the Philippines v. Judge Ayson,
G.R. No. 88386, Aug. 17, 1989, 176 SCRA 571; Vide Isabelo, Jr. v. Perpetual Help
College of Rizal, 227 SCRA 591 (1993). The Court was referring to the old constitu-
tion. The 1987 Constitution changed the wording "academic Freedom shall be enjoyed
in all institutions (Column of Dean Raul C. Pangalangan, UP College of Law, PDI
page 14, January 14, 2005).
56
University of San Carlos v. Court of Appeals, G.R. No. 79237, 18 Oct. 1988,
166 SCRA 570; Vide University of San Agustin v. Court of Appeals, 230 SCRA 761
(1994).
337
VOL. Ill
on how best to attain them, free from outside coercion or interfer-

ence save possibly when the overriding public welfare calls for some
restraint. It encompasses the freedom to determine for itself on
academic grounds: who may teach, what may be taught, how it shall
be taught, and who may be admitted to study. The right of the school
to confirm and validate the teaching method of Dr. Daleon is at once
apparent in the third freedom, i.e., "how it shall be taught."
Academic freedom also accords a faculty member the right to
pursue his studies in his particular specialty. It is defined as a right
claimed by the accredited educator, as teacher and as investigator,
to interpret his findings and to communicate his conclusions with-
out being subjected to any interference, molestation, or penalty be-
cause these conclusions are unacceptable to some constituted au-
57
thority within or beyond the institution.
21. Mandamus Against Public Officials

As a general rule Mandamus will not lie from one branch of
the government to a coordinate branch for the obvious reason that
58
one is not inferior to the other.
Thus, mandamus does not lie to compel the Commissioner of
BIR to impose a tax assessment not found by him to be proper. The
exercise of administrative discretion when not abused is not subject
59
to contrary judgment or control of court.
The writ of mandamus will not issue to control or review the
exercise of discretion of a public officer where the law imposes upon
said public officer the right and duty to exercise his judgment in
reference to any matter in which he is required to act. It is his
60
judgment that is to be exercised and not t h a t of the court.
22. Mandamus premature

A petition for mandamus instituted with the Court of Appeals
barely four days from the filing of the petition for relief from judg-
57
M a n u e l Camacho v. Atty. Jovito A. Coresis, Jr., G.R. No. 134372, August 22,
2002, 387 SCRA 628.
^Suanes v. Chief Accountant of Senate, 81 Phil. 818; 3 Moran 198, 1980 Ed.
59
Meralco Securities v. Savellano, 117 SCRA 804.
^Magtibay v. Garcia, 120 SCRA 370; Avenue Arrastre v. Commissioner of Cus-
toms, 120 SCRA 878.
338
ment in the trial court is premature. With only four days, the trial
judge could scarcely be expected to act on the petition for relief and
the motion for recall of the writ of execution. While prompt action on
the early disposition of cases are "devoutly to be wished," time con-
61
straints and the load of the court's docket must also be considered.
23. Failure to e x h a u s t administrative r e m e d i e s

Petitioners' failure to exhaust administrative remedies (e.g.,
where he files a petition for mandamus without even waiting for
resolution of his appeal to the Merit System Protection Board) is
fatal, especially where the case involves not just issues of law and of
fact but of administrative discretion. The available administrative
procedures must be pursued until a definite and final administra-
62
tive determination is held.
Mandamus is an extraordinary remedy that can be resorted to
only in cases of extreme necessity where the ordinary forms of proce-
dure are powerless to afford relief and where there is no other clear,
adequate and speedy remedy. Before a writ of mandamus may be
issued, it is obligatory upon the petitioner to exhaust all remedies in
the ordinary course of law. He must show that the duty sought to be
performed must be one which the law specifically enjoins as a duty
63
resulting from an office.
Where a petition is filed to order the judge to compel the fiscal
to include Commissioner Noblejas in the information, the failure of
the aggrieved party to avail of the administrative remedy of filing a
simple motion with the Fiscal to include in the information the
additional accused is fatal to his case, unless the aggrieved party
"Filipino Merchants Insurance Co., Inc. v. Intermediate Appellate Court, 162

SCRA 6 6 9 ( 1 9 8 8 ) .
62
Pintor v. Tan, Jr., G.R. No. 84022, 20 Sept. 1988, En Banc Minute Resolution.
See also The Iloilo City Zoning Board of Adjustment and Appeals v. Gegato-Abecia
Funeral Homes, Inc., 417 SCRA 317, December 8, 2003: holding that appeal should be
made to the HLURB over decisions and actions of local and regional planning and
zoning bodies and deputized official of the board. For failure to do so, the petition for
mandamus was dismissed.
"Quintero v. Martinez, 84 Phil. 496; Alzate v. Aldana, 8 SCRA 219; and Caltex
Filipino Managers and Supervisors Association v. Court of Industrial Relations, 23
SCRA 492; Aquino v. Mariano, 129 SCRA 532.
339
VOL. Ill
shows that his case falls within the cases where a party need not
64
exhaust an administrative remedy in the ordinary course of law.
EXCEPTION:
24. Where issue is purely of law
There is no need of prior demand before mandamus may be
instituted against a government agency where the issue is purely
one of law Appellant's contention t h a t appellee's action for
mandamus cannot prosper because no prior exhaustion of adminis-
trative remedy was made, as appellee had not made any prior de-
mand on appellant, is without merit. It is a rule that when a case
involves solely legal questions, the litigant need not exhaust all
65
administrative remedies before judicial relief is sought. Thus, the
PVA can be compelled by mandamus to restore war veterans' pen-
sion as distinguished from an action for additional pension ben-
66
efits.
25. Cases w h e r e mandamus a l l o w e d

The issuance of the writ of mandamus were allowed: (1) to
compel the Chief of the division of archives to perform his duties
under the Corporation Law relating to the registration of articles on
67
incorporation; (2) to compel the Auditor General to issue a Certifi-
cate of availability of funds have been appropriated and are avail-
68
able; (3) to compel the Court of First Instance to hear and decide on
the merits an unlawful detainer case appealed from the municipal
69
court; (4) to compel the trial court to approve the record on appeal
in an appeal from an order denying a petition for relief from judg-
70
ment; (5) to compel the dismissal of a criminal information where a
64
Aquino v. Mariano, Ibid.
6 5
0 n e Heart Sporting Club, Inc. v. CA, 108 SCRA 4 1 6 (1988); Bagatsing v.
Ramirez, 74 SCRA 306 (1976); Mendoza v. S S S , 44 SCRA 373 (1972).
66
Espaiiol v. Chairman, Phil. Veterans Administration, 137 SCRA 316 (1985);
Philippine Veterans Affairs v. Segundo, G.R. No. 5 1 5 7 0 , 1 5 Aug. 1 9 8 8 , 1 6 4 SCRA 365;
See also Chapter on Exhaustion of Administrative Remedies, Vol. 1, Remedial Law by
Herrera under Rule 2, Sec. 2.
67
Asuncion v. De Yriarte, 28 Phil. 67.
68
Tan C. Tee and Co. v. Wright, 53 Phil. 172.
69
Fabie v. Gutierrez David, 75 Phil. 536.
70
P a n e r v. Yatco, 87 Phil. 271.
340
prosecuting officer, without good cause, secures postponements of

the trial beyond a reasonable period of time against the objection of
71
the accused; (6) to compel the issuance of a writ of execution after
72
the judgment had become final and executory; (7) to compel the
reinstatement of an employee who is a civil service eligible whose
suspension and dismissal was without cause and contrary to the
73
express provision of the Constitution and to enforce his right to the
74
payment of his back salary; (8) to compel the President and Board
of Regents of the UP to restore the Dean of College of Education who
was transferred as Special Assistant to the Office of the President,
75
to his position as Dean of College of Education; (9) to compel the
probate court to issue letters testamentary to the person named in
the will upon the latter's application even if the order of probate is
on appeal when no reasonable objection to his assumption of the
76
trust can be interposed; (10) to compel the Registrar of Deeds to
register an instrument which seeks the reformation of an extrajudi-
77
cial settlement of estate consisting of registered lands.
Mandamus is sometimes availed of to compel the admission of

78
evidence where there are special circumstances.
26. Petition for Certiorari treated as m a n d a m u s to com-

pel Admission of a m e n d e d complaint
Although the petitioner's petition is for certiorari, in order to
promote the object of the Rules of Court and to assist the parties in
obtaining just, speedy and inexpensive determination of every ac-
tion or proceeding according to Section 2, Rule 1, of said Rules, the
Court considers the special civil action of certiorari as a petition for
mandamus in view of the facts alleged in the petition, as was done in
previous similar cases. Therefore, the only question to determine is
whether or not the respondent judge has unlawfully neglected to
perform an act which the law specifically enjoins as a duty resulting
71
Conde v. Rivera, 45 Phil. 650.
"Philippine Trust Company v. Santamaria, 53 Phil. 463.
73
Batungbakal v. National Development Company, 93 Phil. 182.
74
G a b u t a s v. Castellanes, 14 SCRA 376.
75
S t a . Maria v. Lopez, 31 SCRA 637.
76
0 z a e t a v. Pecson and Bank of P.I., 93 Phil. 416.
77
D u l a y v. Merrera, 5 SCRA 922.
78
Provincial Fiscal of Pampanga v. Reyes, 55 Phil. 90.
341
VOL. Ill
from his office, or excluded the plaintiff from the enjoyment of a

right to which they are entitled, and there is no other plain, speedy
79
and adequate remedy in the ordinary course of law.
In a case, according to the facts in the record, the amendment
of their complaint by the plaintiffs in the Civil Case No. 4609 of the
Court of First Instance of Manila is the first they have filed before
the defendant has served his answer upon the plaintiffs, because no
answer has yet been filed, and under Section 1 of Rule 17 "a party
may amend his pleading once as a matter of course at any time
before a responsive pleading is served," that is, the plaintiff has the
right to amend once his petition before the defendant has filed his
answer, which is the responsive pleading to a complaint within the
meaning of the said Section 1 of Rule 17. Therefore, it is obvious
that, as the plaintiffs' have the right to amend their complaint, it is
the correlative duty of the respondent judge to accept the amended
complaint; and said respondent, in refusing to permit the amend-
ment of the plaintiffs' complaint, unlawfully neglected to perform an
act which the law specifically enjoins as a duty resulting from his
office, or excluded the plaintiff from the enjoyment of a right to
which they are entitled, and there is no other plain, speedy and
80
adequate remedy in the ordinary course of law.
27. To Compel Dismissal of Complaint

Where a complaint filed in the lower court is decidedly without
a cause of action Mandamus will lie to compel the dismissal of
complaint. The dismissal is not discretionary, but ministerial, there-
81
fore subject to mandamus.
28. Exceptions to t h e rule that t h e writ will not i s s u e to
control discretion
While it is true that in the performance of an official duty or act
involving discretion, the corresponding official can only be directed
by mandamus to act, but not to act one way or the other, the rule
admits of exceptions, such as:
82
1. When there is grave abuse of discretion.
79
Breslin v. Luzon Stevedoring, 84 Phil. 618.
*Ibid.
81
B u a y a n v. Quintillan, 128 SCRA 276.
82
Wright de Diokno v. City of Manila, 48 Phil. 572.
342
83
2. When it will result to manifest injustice.
84
3. When there is palpable excess of authority.
The foregoing exceptions were cited in Angchangco, Jr. v. The
85
Ombudsman.
The discretion which will stand review by mandamus, must be
exercised under the law and not contrary to law.
29. M a n d a m u s to Compel Performance of Discretion-

ary Act
Mandamus is employed to compel the performance when re-
fused, of a ministerial duty, this being its chief use and not a discre-
tionary duty. It is nonetheless likewise available to compel action,
when refused, in matters involving judgment and discretion, but not
to direct the exercise of judgment or discretion in a particular way or
the retraction or reversal of an action already taken in the exercise
86
of either Angchangco, Jr. v. The Ombudsman.
If in the attempted performance of a discretionary act the offi-
cial abuses the discretion, so as to amount to a failure to do the acts
as the law requires, or if by a mistaken view of the law, there has in
fact been no actual exercise in good faith of the judgment of discre-
87
tion vested in the officer, mandamus is a proper remedy.
30. M a n d a m u s to compel a quasi-judicial agency to ex-

ercise its discretion
a. It is proper to compel a quasi-judicial agency by mandamus
to exercise its discretion in a case already ripe for adjudication and
long awaiting the proper disposition. As to how this discretion is to
be exercised, however, is a realm outside the office of the special civil
action of mandamus. It is elementary that mandamus does not lie to
88
control discretion.
83
Blanco v. Board of Medical Examiners, 46 Phil. 190.
M
R e y e s v. Topacio, 44 Phil. 207.
^G.R. No. 122728, February 13, 1997, 268 SCRA 301, citing Kant Kwong v.
PCGG, 156 SCRA 222, 232 (1987).
^G.R. No. 122728, February 13,1997, Supra, citing RULES OF COURT OF THE PHIL-
IPPINES, VOLUME III BY MARTIN, 4th Ed., p. 233.
87
Antiquera v. Baluyot, G.R. No. L-3318, May 5, 1952, 91 Phil. 213.
M
G M C R , Inc. v. Bell Telecommunications Philippines, Inc., G.R. No. 126496,
April 30, 1997, 271 SCRA 790.
343
VOL. Ill
TO DISCLOSE MATTERS OF PUBLIC CONCERN

b. Mandamus lies against the civil service commission to
disclose information on the civil service eligibilities of certain per-
sons based on the fundamental right to information on matters of
public concern. The requirement of personal interest is satisfied by
89
the mere fact that the petitioner is a citizen.
90
See Chavez v. PCGG, Chavez v. PEA and AMARI Coastal Bay
91 92
Development Corp and Tolentino v. COMELEC Dissenting Opin-
ion of Justice Reynato Puno on the Taxpayer's right to be informed
on matters of public concern
c. The refusal to set aside an order of default may be com-
pelled by mandamus (This is an additional remedy of a party de-
93
clared in default).
94
d. In Co Tiamco v. Diaz mandamus was issued to compel
the judge to hear the unlawful detainer case which it dismissed for
lack of jurisdiction.
e. Mandamus is the remedy to restore or return articles
95
seized by virtue of a void warrant.
f. Mandamus was granted to compel the Ombudsman to
dismiss criminal charges which it failed to resolve for more than six
96
years.
31. Availability of Mandamus To Compel Filing of Crimi-

nal Cases
91
In Lim v. Court of Appeals the Court reiterated the rule of
long standing that the matter of deciding who to prosecute is a
prerogative of the prosecuting fiscal:
89
Legaspi v. Civil Service Commission, 150 SCRA 530.
90
2 9 9 SCRA 7 4 4 ( 1 9 9 8 ) .
91
3 8 4 SCRA 152, July 9, 2002.
92
4 2 0 SCRA 428, January 21, 2004.
93
B a n a r e s v. Flordeliza, 51 Phil. 786.
94
7 5 Phil. 672, 688.
95
Marcelo v. de Guzman, 114 SCRA 657.
96
Angchangco, Jr. v. The Ombudsman, 268 SCRA 3 0 1 , February 13, 1997.
97
2 2 2 SCRA 279.
344
"Further to the argument concerning the non-inclusion of

the prosecution witnesses as additional accused in the case of
violation of the Anti-Fencing Law, it may be observed that this
bare assertion overlooks the fact that it is the fiscal, as a quasi-
judicial officer, who assumes full discretion and control of the
case and this faculty may not be interfered with, for a prosecu-
tor may not be compelled by mandamus to file a criminal infor-
mation where he is convinced that he does not have the neces-
sary evidence against an individual, x x x."
While the prosecuting officer is required by law to charge all

those who, in his opinion, appear to be guilty, he nevertheless cannot
be compelled to include in the information a person against whom
98
he believes no sufficient evidence of guilt exists.
The decision of the prosecutor may be reversed or modified by
the Secretary of Justice or in special cases by the President of the
99
Philippines. But even the Supreme Court cannot order the pros-
ecution of a person against whom the prosecutor does not find suffi-
cient evidence to support at least a prima facie case. The courts try
and absolve or convict the accused but as a rule have no part in the
initial decision to prosecute him.
The possible exception is where there is an unmistakable show-
ing of a grave abuse of discretion that will justify judicial intrusion
into the precincts of the executive. But in such a case the proper
remedy to call for such exception is a petition for mandamus, not
100
certiorari or prohibition. Moreover, before resorting to this relief,
the party seeking the inclusion of another person as a co-accused in
the same case must first avail itself of other adequate remedies such
101
as the filing of a motion for such decision.
The rule is thus settled that the court's duty in an appropriate
case is confined to determining whether the executive or judicial
98
Albero v. de la Cruz, 98 SCRA 406; People v. Santos, 30 SCRA 100; People v.
Agasang, 60 Phil. 182; People v. Ong, 53 Phil. 544.
"Section 1, par. (d), P D . No. 911; Section 4, Rule 112, 1985 Rules on Criminal
Procedure; Department Circular No. 7, January 25, 1990; Memorandum Circular No.
1266; Vda. de Jacob v. Puno, 131 SCRA 144; Crespo v. Mogul, supra.
l00
S e c t i o n 3, Rule 65, Rules of Court; Baylosis v. Chavez, 202 SCRA 405; De
Castro, et al. v. Castaneda, et al., 1 SCRA 1131; Guiao v. Figueroa, 94 Phil. 1018^
101
Aquino v. Mariano, 129 SCRA 532; Sanchez v. Demetriou, 227 SCRA 643.
345
VOL. Ill
determination, as the case may be, of probable cause was done with-
102
out or in excess of jurisdiction or with grave abuse of discretion.
Thus, although it is entirely possible that the investigating fiscal
may erroneously exercise the discretion lodged in him by law, this
does not render his act amenable to correction and annulment by
the extraordinary remedy of correction and annulment by the ex-
traordinary remedy of certiorari, absent any showing of grave abuse
103
of discretion amounting to excess of jurisdiction.
" x x x [A] fiscal by the nature of his office, is under no compul-
sion to file a particular criminal information where he is not con-
vinced that he has evidence to support the allegations thereof. Al-
though this power and prerogative x x x is not absolute and subject
to judicial review, it would be embarrassing for the prosecuting at-
torney to be compelled to prosecute a case when he is in no position
to do so, because in his opinion he does not have the necessary
evidence to secure a conviction, or he is not convinced of the merits
104
of the case."
The Court pointed out that
105
Mandamus was allowed in People v. Orais, not to compel the
prosecution to exercise his discretion in a particular manner, but to
compel him to file an Information because he refused to do so in
spite of the existence of prima facie evidence of guilt. Resort to the
extraordinary remedy of mandamus to compel the fiscal to proceed
with the case and the judge, who ordered the dismissal, to restore it,
if the evidence in the preliminary investigation and that submitted
to the fiscal establishes prima facie the guilt of the accused."
106
In Antiquera v. Baluyot, mandamus issued, not with respect
to the determination of probable cause, but rather on account of the
refusal of the then Secretary of the Interior to grant retirement
gratuity to the petitioner in spite of the plain and only requirement
of law that in order to be entitled thereto, the employee be separated
from service by reason of reorganization.
102
Roberts, Jr., et al. v. Court of Appeals, 254 SCRA 307, March 5, 1996.
103
D.M. Consunji v. Esguerra, 260 SCRA 74.
104
Quiso v. Sandiganbayan, 149 SCRA 108.
105
6 5 Phil. 744.
106
9 1 Phil. 213, 214.
346
101
The case of Bernabe v. Bolinas, Jr., allowed mandamus to
compel the fiscal to amend the offense charged in the Information
from homicide to murder because there was treachery based on the
testimonies of the witnesses.
108
In De Castro, Jr. v. Castaneda, the issue was whether the
fiscal could be compelled by mandamus to include all the accused
"who appear responsible for the commission of an offense x x x in the
information x x x as there was sufficient evidence of their guilt. This
Court ruled in the affirmative.
Thus, the remedy of mandamus does not lie to compel public
respondents to file an Information against private respondents, there
being no showing of grave abuse of discretion on the part of public
respondents which would warrant the overturning of their decision
to dismiss the complaint against the private respondents, corollarily,
109
there is also no ground to issue a writ of mandamus.
In Roberts, et al. v. Court of Appeals, et al., the Court held that
in criminal prosecutions, the determination of probable cause may
either be an executive or a judicial prerogative:
"x x x The determination of probable cause for the war-
rant of arrest is made by the Judge. The preliminary investiga-
tion proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and,
therefore, whether or not there is reasonable ground to believe
t h a t the accused is guilty of the offense charged and, therefore,
whether or not he should be subjected to the expense, rigors
and embarrassment of trial is the function of the Prosecutor.
xxx
We reiterate t h a t preliminary investigation should be dis-
tinguished as to whether it is an investigation for the determi-
nation of a sufficient ground for the filing of the information or
it is an investigation for the determination of a probable cause
for the issuance of a warrant of arrest. The first kind of pre-
liminary investigation is executive in nature. It is part of the of
107
1 6 SCRA 81.
108
1 SCRA 1131.
109
D.M. Consunji v. Esquerra, supra.
347
VOL. Ill
the prosecution's job. The second kind of preliminary investiga-

tion which is more properly called preliminary examination is
judicial in nature and is lodged with the judge."
Where the preliminary investigation falls under the first kind.
Thus, the decision whether or not to dismiss the complaint against
private respondents is necessarily dependent on the sound discre-
tion of the prosecuting fiscal, and ultimately that of the Secretary or
Undersecretary (acting for the Secretary) of Justice. (Which ordinar-
ily is not compellable by mandamus).
However, if government prosecutors make arbitrary choices of
those they would prosecute under a particular law, excluding from
the indictment certain individuals against whom there is the same
evidence as those impleaded, the fault is not in the law but in the
prosecutors themselves whose duty it is to file the corresponding
information or complaint against all persons who appear to be liable
for the offense involved, a duty that should be performed responsi-
bly, without discrimination, arbitrariness or oppression. If that duty
is not performed evenhandedly, the persons aggrieved are not with-
out remedy. They may avail of the remedy of mandamus to compel
110
compliance with that duty by the prosecutors concerned.
SEC. 4. When and where petition filed. The petition

shall be filed not later t h a n sixty (60) days from n o t i c e of the
judgment, order or resolution. In c a s e of a m o t i o n for recon-
sideration or n e w trial is timely filed, w h e t h e r s u c h m o t i o n
is required or not, t h e sixty (60) day period shall be c o u n t e d
from notice of the denial of said motion.
The petition shall be filed in t h e Supreme Court or, if it
relates to the acts of o m i s s i o n s of a l o w e r court or of a corpo-
ration, board, officer of person, in t h e Regional Trial Court
exercising jurisdiction over t h e territorial area as defined
by the Supreme Court. It m a y also be filed in t h e Court of
110
R. Baylosis v. Hon. A. Chavez, 202 SCRA 405, Oct. 3, 1991, citing Guiao v.
Figueroa, 94 Phil. 1018, 1021-1023 (1954); De Castro, Jr. v. Castaneda, 1 SCRA 1131,
1134-1135 (1961); both cited in Jacinto G.V, CRIMINAL PROCEDURE, 1979 Ed., p. 8; See
Footnote No. 8 Concurring opinion of Narvasa, C.J. in Roberts v. Court of Appeals,
March 5, 1996, 254 SCRA 307.
348
Sec. 4
Appeals w h e t h e r or not t h e same is in aid of its appellate

jurisdiction, in t h e Sandiganbayan, if it is in aid of its appel-
late jurisdiction. If it involves t h e acts or omissions of a quasi-
judicial agency, u n l e s s o t h e r w i s e provided by law or these
rules, the petition shall be filed in a n d cognizable only by the
Court of Appeals.
No e x t e n s i o n of time to file t h e petition shall be granted
except for c o m p e l l i n g r e a s o n a n d in no c a s e exceeding fif-
t e e n (15) days. (4a)
COMMENT:
1. Source of Rule
Taken from Sec. 4, of the former Rule as amended by EN BANC.
AJVL No. 00-2-03-SC - FURTHER AMENDING SECTION

4, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE
This resolution shall take effect on September 1, 2000, follow-
1
ing its publication in two (2) newspapers of general circulation.
Petitions for certiorari under Rules 43, 44 and 45 shall be filed
with the Supreme Court.
a. P e r i o d to file certiorari
There was no rule which specifies the period within which a
petition for certiorari should be filed. The yardstick to measure the
timelessness of a petition for certiorari is the reasonableness of the
duration of time that has expired from the commission of the act
complained of, up to the institution of the proceedings to annul the
2
same.
3
E.g., An interval of two years is too long. Ninety-nine days in
filing certiorari after receipt of denial of the motion for reconsidera-
'Resolution of July 2 1 , 1 9 9 8 .
2
S a n Juan v. Cuento, 160 SCRA 277, 15 April 1988; Toledo v. Pardo, 118
566(1982).
3
Supra; Velasco Vda. de Caldito v. Segundo, 117 SCRA 573; San Juan v. C
G.R. No. 45063, 15 April 1988, 160 SCRA 277.
349
VOL. Ill
4
tion was considered as barred by laches. Ninety-five (95) days from
receipt the order was considered as reasonable in Allied Leasing
5
Corporation v. Court of Appeals, Two (2) months and 19 days was
6
also declared as reasonable in Freeman v. SEC and Fixed at three
7
months in People v. Magallanes. The period has now been settled at
sixty days.
The amendment under A.M. No. 00-2-03-SC wherein the sixty-
day period to file a petition for certiorari is reckoned from receipt of
the resolution denying the motion for reconsideration should be ap-
8
plied retroactively. The amendatory provision, being curative in na-
ture, should be made applicable to all cases still pending with the
9
courts at the time of its effectivity. Similar ruling in Republic v.
10
Disierto.
Under this amendment, the 60-day period within which to file
the petition starts to run from receipt of notice of the denial of the
motion for reconsideration, if one is filed. In Systems Factors
11
Corporation and Modesto Dean v. NLRC, et al., the new period was
made applicable to pending cases.
Three material dates: (1) receipt of notice of decision or resolu-
tion denying the motion for reconsideration or new trial; (2) the
filing of the motion for reconsideration; and (3) receipt of the denial
4
Claridad v. Santos, 120 SCRA 148.
5
1 9 7 SCRA 71 (1991).
6
July 7, 1994.
7
Oct. 1 1 , 1 9 9 5 , G.R. No. 118013, 249 SCRA 212, citing Philec Workers Union v.
Young, January 22, 1992.
"Systems Factors Corporation and Modesto D e a n v. NLRC, 346 SCRA 149,
November 2 7 , 2 0 0 0 ; Universal Robina Corporation v. Court of Appeals, 373 SCRA 311,
Jan. 15, 2002; Docena v. Lapesura, G.R. No. 140153, March 28, 2 0 0 1 , 355 SCRA 658;
San Luis v. CA, 365 SCRA 279, September 13, 2001; Lascano v. Universal Smelting
Co., Inc., G.R. No. 46019, June 8 , 2 0 0 4 ; Siena Realty Corporation v. Gal-lang, G.R. No.
145169, May 1 3 , 2 0 0 4 , 4 2 8 SCRA 422, where the amendment w a s applied to a pending
Motion for Reconsideration; See also PCI Learning and Financing, Inc. v. Ko, G.R. No.
148641, March 31, 2005.
9
Republic of the Philippines v. The Honorable Court of Appeals and the Heirs of
Luis Santos, G.R. No. 146587, July 2, 2002, 383 SCRA 611.
10
G.R. No. 131966, Sept. 23, 2002, 389 SCRA 452.
U
G.R. No. 143789,27 November 2 0 0 0 , 3 4 6 SCRA 149, reiterated in Unity Fishing
Development Corp and/or Antonio Dee v. Court of Appeals, et al., G.R. No. 145415, 2
February 2001, 351 SCRA 140.
350
of the motion for reconsideration must be alleged otherwise the peti-

12
tion shall be denied.
The Petition for certiorari UNDER Rule 65 filed beyond the
sixty days period was allowed in view of the primordial interests of
13
substantial justice.
a.l N e c e s s i t y of Proof of Service

The provisions of Rule 46 are applicable to original actions for
certiorari, prohibition and mandamus. Among the requirements
thereof is that the filing of the petition shall be accompanied with
proof of service thereof on the respondent, etc.
b. J u r i s d i c t i o n to Issue Writs of Certiorari, Prohibi-

tion a n d M a n d a m u s
In the Philippine setting, the authority to issue Writs of Certio-
rari, Prohibition and Mandamus involves the exercise of original
jurisdiction. Thus, such authority is always conferred, either by the
Constitution or by law. As a matter of fact, the well-settled rule is by
14
the Constitution or by law.
It is never derived by implication. Indeed, "(w)hile the power to
issue the writ of certiorari is in some instance conferred on all courts
by constitutional or statutory provisions, ordinarily, the particular
15
courts which have such power are expressly designated." Thus,
(1) Section 5(1), Article VIII of the 1987 Constitution con-
ferred upon the Supreme Court such jurisdiction;
(2) Section 9(1) of Batas Pambansa Big. 129, or the Judiciary
Reorganization Act of 1980, to the Court of Appeals (the Intermedi-
ate Appellate Court);
(3) Section 21(1) of the said Act, to Regional Courts;
(4) Section 5(1) of Republic Act No. 6734, or the Organic Act
for the Autonomous Region in Muslim Mindanao, to the newly cre-
ated Shari'ah Appellate Court; and
12
S a n t o s v. Court of Appeals, G.R. No. 141947, July 5, 2001, 360 SCRA 521.
"People v. Gako, G.R. No. 135045, December 15, 2000, 348 SCRA 334.
u
O r o s a v. Court of Appeals, 193 SCRA 391, Jan. 2 2 , 1 9 9 1 ; Bacalso v. Ramolete,
21 SCRA 519, 26 Oct. 1967.
16
J . Aquino's Concurring Opinion in Pimentel, supra, citing 14 C.J.S. 202.
351
VOL. Ill
(5) Article 143(e), Chapter I, Title I, Book IV of Presidential

Decree No. 1083, or the Code of Muslim Personal Law, to Shari'ah
16
District Courts.
(6) The Commission on Elections is vested with exclusive au-
thority to hear and decide petitions for certiorari, prohibition and
17
mandamus involving election cases.
(7) The Sandiganbayan shall exercise exclusive original ju-
risdiction over petitions for the issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus, injunction, and other ancil-
lary writs and processes in aid of its appellate jurisdiction: Provided,
That the jurisdiction over these petitions shall not be exclusive of
18
the Supreme Court and as amended by RA 8249 granted the
Sandiganbayan original jurisdiction over petitions of similar nature,
including quo warranto, arising or that may arise in cases filed or
which may be filed under Executive Order Nos. 1, 2,14,14-A issued
in 1986; Provided, That the jurisdiction over these petitions is not
exclusive of the Supreme Court.
(8) Sec. 21 of BP Big. 129 provides t h a t Regional Trial Courts
shall exercise original jurisdiction in the issuance of writs of certio-
rari, prohibition, mandamus, quo warranto, habeas corpus and in-
junctions which may be enforced in any part of their respective
regions.
c. Policy of Resort to S u p r e m e Court only w h e n Ex-

traordinary Writ n o t Available in other Courts
As a matter of policy, the original jurisdiction of the Supreme
Court to issue the so-called extraordinary writs should generally be
exercised relative to actions or proceedings before the Court of Ap-
peals or before constitutional or other tribunals or agencies whose
acts for some reason or another, are not controllable by the Court of
Appeals. Where the issuance of the extraordinary writ is also within
the competence of the Court of Appeals or to the Regional Trial
16
Daniel Garcia v. Ernesto De J e s u s and Cecilia David, and the COMELEC, 206
SCRA 779, March 4, 1992.
17
Sec. 50, B.P. Big. 697; Relampagos v. Cumba, G.R. No. 118861, April 2 7 , 1 9 9 5 ,
243 SCRA 690.
18
Sec. 2, Rep. Act No. 7975.
352
Court, it is to either of these courts that the specific action for the
19
writs procurement must be presented.
20
The policy was restated in Santiago v. Vasquez as follows:
One final observation. We discern in the proceedings in this
case a propensity on the part of petitioner, and, for that matter, the
same may be said of a number of litigants who initiate recourses
before us, to disregard the hierarchy of courts in our judicial system
by seeking relief directly from this Court despite the fact that the
same is available in the lower courts in the exercise of their original
or concurrent jurisdiction, or is even mandated by law to be sought
therein. This practice must be stopped, not only because of the impo-
sition upon the precious time of this Court but also because of the
inevitable and resultant delay, intended or otherwise, in the adjudi-
cation of the case which often has to be remanded or referred to the
lower court as the proper forum under the rules of procedure, or as
better equipped to resolve the issue since this Court is not a trier of
facts. We, therefore, reiterate the judicial policy that this Court will
not entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts or where exceptional and compel-
ling circumstances justify availment of a remedy within and calling
21
for the exercise of our primary jurisdiction.
The principle was reiterated by Justice Davide in another case.
Even granting arguendo that petitioners have a cause cf action ripe
for the extraordinary writ of certiorari, there is here a clear disre-
gard of the hierarchy of courts, and no special and important reason
or exceptional and compelling circumstance has been adduced why
direct recourse to us should be allowed. While we have concurrent
jurisdiction with Regional Trial Courts and with the Court of Ap-
peals to issue writs of certiorari, prohibition, mandamus, quo war-
ranto, habeas corpus and injunction, such concurrence give petition-
ers no unrestricted freedom of choice of court forum, so we held in
22
People v. Cuaresma.
19
Vergara v. Suelto, 156 SCRA 753; People v. Cuaresma, 172 SCRA 415 (1989);
Enrile v. Salazar, 186 SCRA 213 (1990); Santiago v. Vasquez, 217 SCRA (1993).
20
Supra.
n
Vide Manalo v. Gloria, 236 SCRA 130 (1994); Philnabank Employees Associa-
tion v. Estanislao, 227 SCRA 804 (1993).
22
1 7 2 SCRA 415, 423-424 (1989), reiterated in Manalo v. Gloria, 236 SCRA 130,
138-139(1994).
353
VOL. Ill
This concurrence of jurisdiction is not... to be taken as accord-

ing to parties seeking any of the writs an absolute unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordi-
nary writs against first level ("inferior") courts should be filed with
the Regional Trial Courts, and those against the latter, with the Court
of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when there
are special and important reasons therefor, clearly and specifically
set out in the petition. This is established policy. It is a policy neces-
sary to prevent inordinate demands upon the Court's time and at-
tention which are better devoted to those matters within its exclu-
sive jurisdiction, and to prevent further over-crowding of the Court's
docket.
The Court feels the need to reaffirm that policy at this time,
and to enjoin strict adherence thereto in the light of what it per-
ceives to be a growing tendency on the part of litigants and lawyers
to have their applications for the so-called extraordinary writs, and
sometimes even their appeals, passed upon and adjudicated directly
and immediately by the highest tribunal of the land.
23
In Santiago v. Vasquez, this Court forcefully expressed that
the propensity of litigants and lawyers to disregard the hierarchy of
courts must be put to a halt, not only because of the imposition upon
the precious time of this Court, but also because of the inevitable
and resultant delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the lower court,
the proper forum under the rules of procedure, or as better equipped
to resolve the issues since this Court is not a trier of facts. We
reiterated "the judicial policy that this Court will not entertain di-
rect resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circum-
23
2 1 7 SCRA 633, 652 (1993).
354
stances justify availment of a remedy within and calling for the

24
exercise of [its] primary jurisdiction."
The court clarified that the rule on hierarchy of courts in cases
falling within the concurrent jurisdiction of the trial courts and
appellate courts generally applies to cases involving warring factual
allegations. For this reason, litigants are required to repair to the
trial courts at the first instance to determine the truth or falsity of
these contending allegations on the basis of the evidence of the
parties. Cases which depend on disputed facts for decision cannot be
brought immediately before appellate courts as they are not trial of
facts. When cases brought before the appellate court do not involve
factual but legal questions, a strict application of the rule of hierar-
25
chy of courts is not necessary.
d. P e t i t i o n Filed in Court of Appeals Against MTC

Where a petition for certiorari against the Municipal Trial Court
is filed before the Court of Appeals, the latter should not dismiss the
petition on the ground t h a t the proper court is the Regional Trial
Court since its jurisdiction to issue such writs is concurrent. The
Court of Appeals may, however, remand the case to the Regional
Trial Court where there is no cogent reason advanced why the appel-
late court should hear the case. This is because it is the Court which
exercise administrative supervision over the Municipal Trial Court
26
as the next higher tribunal in the judicial hierarchy.
A Regional Trial Court may issue these writs against a lower
court, corporation, board, officer or person which exercises functions
27
within its territorial area as defined by the Supreme Court. These
28
may be enforced in any part of the region.
With respect to quasi-judicial agencies, the petition may be
filed only in the Court of Appeals. (Sec. 4).
24
Tano v. Salvador, G.R. No. 110249, August 2 1 , 1997, 278 SCRA 154; See
Paradero v. Abrogas, G.R. No. 158917, March 1, 2004, 424 SCRA 155.
26
A g a n , Jr., et al. v. Philippine International Air Terminals Co. (PIATCO), G.R.
No. 155001, January 21, 2004, 420 SCRA 575.
26
D e Jesus v. Roxas, 212 SCRA 823 (1992).
27
S e c . 18 of BP 129.
^Sec. 21, Id. (Feria).
355
VOL. Ill
Where there is concurrence of jurisdiction

Both the Supreme Court and COMELEC have concurrent ju-
risdiction to issue writs of certiorari, prohibition, and mandamus
over decisions of trial courts of general jurisdiction (Regional Trial
Courts) in election cases involving elective municipal officials. The
Court that takes jurisdiction first shall exercise exclusive jurisdic-
tion over the case.
Relative to the appeal that petitioner filed with the COMELEC,
the same would not bar the present action as an exception to the
rule because under the circumstances, appeal would not be a speedy
and adequate remedy in the ordinary course of law. The exception is
sparingly allowed in situations where the abuse of discretion is not
only grave and whimsical but also palpable and patent, and the
29
invalidity of the assailed act is shown on its face.
SEC. 5. Respondents and costs in certain cases. When

the petition filed relates to t h e acts or o m i s s i o n s of a judge,
court, quasi-judicial agency, tribunal, corporation, board, of-
ficer or person, t h e petitioner shall join, as private respond-
ent or respondents w i t h s u c h public r e s p o n d e n t or respond-
ents, the person or persons i n t e r e s t e d in s u s t a i n i n g t h e pro-
ceedings in the court; a n d it shall be t h e duty of s u c h private
respondents to appear a n d defend, b o t h in his or their o w n
behalf and in behalf of the public r e s p o n d e n t or r e s p o n d e n t s
affected by the proceedings, a n d t h e costs a w a r d e d in s u c h
proceedings in favor of t h e petitioner shall be against the
private respondents only, a n d not against t h e judge, court,
quasi-judicial agency, tribunal, corporation, board, officer
or person impleaded as public r e s p o n d e n t or r e s p o n d e n t s .
Unless otherwise specifically directed by the court w h e r e
the petition is pending, the public r e s p o n d e n t s shall not ap-
pear in or file an a n s w e r or c o m m e n t to the petition or any
pleading therein. If the case is e l e v a t e d to a h i g h e r court by
either party, the public respondents shall be included therein
as nominal parties. However, u n l e s s o t h e r w i s e specifically
directed by the court, t h e y shall not appear or participate in
the proceedings therein. (5a)
29
Carlos v. Hon. Angeles, G.R. No. 142907, November 29, 2000, 346 SCRA 571.
356
COMMENT:
1. Source of Rule
SEC. 5. Defendants and costs in certain cases. When the
petition filed relates to the acts or omissions of a court or judge, the
petitioner shall join, as parties defendant with such court or judge,
the person or persons interested in sustaining the proceedings in the
court; and it shall be the duty of such person or persons to appear and
defend, both in his or their own behalf and in behalf of the court or
judge affected by the proceedings, and costs awarded in such pro-
ceedings in favor of the petitioner shall be against the person or
persons in interest only, and not against the court or judge.
2. C h a n g e in Rule
The present Rule does not limit the inclusion of public respond-
ent to the judge or court. When the petition filed relates to the acts
or omissions of a judge, court, quasi-judicial agency, tribunal, corpo-
ration, board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or respond-
ents, the person or persons interested in sustaining the proceedings
in the court.
These being special civil actions, not appeals, the court, judge,
etc. should be joined as public respondents, although it is the duty of
the private respondents to appear and defend them. The last para-
graph is a new provision. (Feria)
R e m e d y u n d e r Rule 65 m u s t be against proper party

A petition for certiorari under Rule 65 has for its object the
review of an action of a tribunal, board or officer exercising quasi-
judicial functions made without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Where the tribunal whose action is sought to be re-
viewed is the Office of the Ombudsman yet, petitioner impleaded
the Commission on Audit as respondent, and not the Office of the
Ombudsman. The petition suffers from a failure to denominate the
1
proper party.
Tictoriano B. Tirol, Jr. v. COA, 337 SCRA 198, August 3, 2000.
357
VOL. Ill
2
However, in Yao v. Perello the Court held that nothing in Sec-
tion 2, Rule 65 requires that in a petition for prohibition the inclu-
sion of a private party as a respondent.
3. Notes and Cases

a. J u d g e s as Formal Parties
Judges and Justices are mere formal parties and need not file
separate comment unless specifically and expressly directed to do
3
so.
b. Duty of Private R e s p o n d e n t to R e p r e s e n t Public
Respondent
It is the duty of the private respondent to appear and defend
both in his/her behalf and in behalf of the Court or Judge whose
order or decision is at issue. The judge should maintain a detached
attitude from the case and should not waste his time by taking an
active part in a proceeding which relates to his official actuation in a
case but should apply himself to his principal task of hearing and
adjudicating the cases in his court. He is merely a nominal party to
4
the case and has no personal interest nor personality therein.
Justice Teehankee stressed t h a t in all instances where a lower
court or judge, including the Court of Appeals, is made respondent
in any petition relating to acts or omissions of said court or judge,
the provisions of Section 5 of Rule 65 should be observed, hence
whether the summons calls for an answer or a mere comment, re-
spondent court or judge is considered a mere nominal party and
need not file any separate pleading or comment distinct from that of
the private respondent who is obligated to appear and defend the
court or judge concerned, unless the summons or order to comment
specifically and expressly requires the court or the judge himself to
comply with the directive of the superior court. In the latter case,
the answer or comment must be over the signature of the justices or
2
4 1 4 SCRA 474, October 24, 2003.
3
Turqueza v. Hernando, 97 SCRA 483; Dungog v. CA, 159 SCRA 145, March 25,
1988; Acting Registrar of Land Titles and Deeds of Pasay City v. RTC, Branch 57,
Makati City, 184 SCRA 622 (1990); Calderon v. Solicitor General, 215 SCRA 876 (1992).
Turqueza v. Hernando, supra.
358
judge of the respondent court, and not of any counsel whether pri-
5
vate or public.
JUDGE AS RESPONDENT SHOULD NOT ANSWER
The Court has reminded judges of the lower courts that a judge
whose order is challenged in an appellate court need not file any
answer, or take an active part in the proceedings unless expressly
directed by order of the Court.
Where respondent judge filed a comment on behalf of the re-
spondent Raymundo E. Catral in the case on review with the Court
of Appeals and signed the pleading herself and submitted it to the
court notwithstanding t h a t it was her decision that was the subject
of the petition in the said court, respondent judge violated the provi-
sion in the Revised Rules of Court. A judge must maintain a de-
tached attitude from the case and shall not waste his time by taking
an active part in a proceeding that relates to official actuations in a
case. He is merely a nominal party and has no personal interest or
personality therein.
In signing and filing a comment with the court on behalf of one
of the parties, respondent judge engaged in the private practice of
law. The practice of law is not limited to the conduct of cases in court
or participation in court proceedings but includes preparation of
6
pleadings or papers in anticipation of litigation.
c. E x c e p t i o n w h e r e p e r s o n a l m o t i v e s attributed to
judge
Where, however the actuations of a judge are assailed on
grounds, other than legal ones, and imputing to the judge personal
motives, the judge cannot be blamed if he takes personal interest in
7
trying to disprove the imputations.
^Taroma v. Sayo, 67 SCRA 510; Vide La Campana Food Products, Inc. v. Court
of Appeals, 223 SCRA 151 (1993).
"Victor Tuzon v. Judge Loreto Cloribel-Purugganan, A.M. No. RTJ-01-1662 (for-
merly OCA I.P.I. 01-1137-RTJ), November 26, 2001, 370 SCRA 511.
7
Montalban v. Canonoy, 38 SCRA 1, 8.
359
VOL. Ill
SEC. 6. Order to comment. If the petition is sufficient

in form and substance to justify such process, the court shall
issue an order requiring the respondent or respondents to
comment on the petition w i t h i n ten (10) days from receipt of
a copy thereof. Such order shall be served on the respond-
ents in such manner as the court may direct, together with a
copy of the petition and any a n n e x e s thereto.
In petitions for certiorari before the Supreme Court and
the Court of Appeals, the provisions of Section 2, Rule 56,
shall be observed. Before giving due course thereto, the court
may require the respondents to file their c o m m e n t to, and
not a motion to dismiss, the petition. Thereafter, the court
may require the filing of a reply a n d s u c h other responsive
or other pleadings as it m a y d e e m n e c e s s a r y a n d proper. (6a)
COMMENT:
1. Source of Rule
SEC. 6. Order to answer. If the petition is sufficient in form

and substance to justify such process, the court in which it is filed, or
a judge thereof, shall issue an order requiring the defendant or de-
fendants to answer the petition within ten (10) days from the receipt
of a copy thereof. Such order shall be served on the defendants in such
manner as the court may direct, together with a copy of the petition,
and to that effect the petitioner shall file sufficient copies thereof.
2. Changes in Rule
The present Rule has done away with the "Order to Answer."
Under the present Rule, if the petition is sufficient in form and
substance to justify such process, the court before giving due course
shall issue an order requiring the respondent or respondents to
comment on the petition within ten (10) days from receipt of a copy
thereof.
The old formulation premised on the statement: "Without nec-
essarily giving due course, the respondent is required to comment
which shall be considered as the answer should the court resolve to
grant due course" which has acquired the character of a legal form is
360
already obsolete. Requiring a party to comment is not a grant to give

due course to the petition but a mere recognition that the petition is
sufficient in form and substance. It is after the comment is filed that
the court determines whether or not to give due course to the peti-
tion under Section 8 of the rule.
In petitions for certiorari before the Supreme Court and the
Court of Appeals, the provisions of Section 2, Rule 56 applies.
SEC. 2. Rule 56provides: Rules applicable. The procedure in
original cases for certiorari, prohibition, mandamus, quo warranto
and habeas corpus shall be in accordance with the applicable provi-
sions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this
Rule, subject to the following provisions:
a) All references in said Rules to the Court of Appeals shall
be understood to also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and spe-
cifically intended for appealed cases in the Court of Appeals shall
not be applicable; and
c) Eighteen (18) clearly legible copies of the petition shall be
filed, together with proof of service on all adverse parties.
SEC. 7. Expediting proceedings; injunctive relief. The

court in w h i c h t h e p e t i t i o n is filed m a y issue orders expedit-
ing t h e proceedings, a n d it m a y also grant a temporary re-
straining order or a writ of preliminary injunction for the
preservation of t h e rights of the parties p e n d i n g such pro-
ceedings. The petition shall not interrupt the course of the
principal case u n l e s s a temporary restraining order or a writ
of preliminary injunction or temporary restraining order has
b e e n issued against the public respondent from further pro-
c e e d i n g in the case. (7a)
COMMENT:
1. Source of Rule
SEC. 7. Expediting proceedings. Preliminary injunction. - The
court in which the petition is filed, or a judge thereof, may make
361
VOL. Ill
orders expediting the proceedings, and may also grant a preliminary

injunction for the preservation of the rights of the parties pending
such proceedings.
2. Change in Rule
Under the present Rule the court in which the petition is filed
may also grant a temporary restraining order. The petition shall not
interrupt the course of the principal case unless a writ of prelimi-
nary injunction or temporary restraining order has been issued
against the public respondent from further proceeding in the case.
3. Notes and Cases

Rule that mere pendency of action does not interrupt course of
action in the absence of restraining order.
1
In PEZA v. Alikpala, the Supreme Court thru Judge Narvasa
held: "It is elementary that the mere pendency of a special civil
action for certiorari, commenced in relation to a case pending before
a lower court, does not interrupt the course of the latter when there
is no writ of injunction restraining it. This is particularly true in the
case of the respondent judge in the light of the requirement of the
Judiciary Act that a case be decided within ninety days from date of
submission. Consequently, the judge was absolved of responsibility
for contempt of court for having decided the case on the merits
despite the pendency of a petition for certiorari with the Supreme
Court questioning the order of the judge in refusing to accept evi-
dence proffered by the petitioner on the ground of irrelevancy as
well as the order of the judge denying plaintiff's request for time to
present additional rebuttal evidence.
2
In Santiago v. Vasquez, the Supreme Court en banc thru Jus-
tice Regalado wrote:
Petitioner further posits, however, that the filing of the instant
special civil action for certiorari divested the Sandiganbayan of its
jurisdiction over the case therein. Whether generated by misconcep-
tion or design, we shall address this proposition which, in the first
x
160 SCRA 31 (1988).
2
217SCRA 633(1993).
362
place, had no reason for being and should not hereafter be advanced
under like or similar procedural scenarios.
The original and special civil action filed with this Court is, for
all intents and purposes, an invocation for the exercises of its super-
visory powers over the lower courts. It does not have the effect of
divesting the inferior courts of jurisdiction validly acquired over the
case pending before them. It is elementary that the mere pendency
of a special civil action for certiorari, commenced in relation to a case
pending before a lower court, does not even interrupt the course of
the latter when there is no writ of injunction restraining it. The
inevitable conclusion is that for as long as no writ of injunction or
restraining order is issued in the special civil action for certiorari, no
impediment exists and there is nothing to prevent the lower court
from exercising its jurisdiction and proceeding with the case pend-
ing before it. And, even if such injunctive writ or order is issued, the
lower court nevertheless continues to retain its jurisdiction over the
principal action.
Thus the filing of a petition for certiorari from denial of motion
to dismiss does not interrupt the period to answer; hence, defendant
3
was properly declared in default.
Despite the foregoing pronouncement, the Court seems not to
have entirely done away with the principle of judicial courtesy. As
held in a later case, the precept of "judicial courtesy" should not be
applied indiscriminately and haphazardly if we are to maintain the
relevance of Sec. 7, Rule 65, 1997 Rules of Civil Procedure which
states that "the petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from fur-
ther proceeding in the case" So construed, in Eternal Gardens Me-
morial Corp. v. Court of Appeals the rule of"judicial courtesy" would
apply only if there is a strong probability that the issues before the
higher court would be rendered moot and moribund as a result of
4
the continuation of the proceedings in the lower court.
3
China Banking Corporation v. Oliver, G.R. No. 135796, October 3, 2002,
SCRA 263.
4
Go v. Judge Abrogar, A.M. RTJ-03-1759, February 27, 2003, 398 SCRA 16
363
VOL. Ill
SEC. 8. Proceedings after comment is filed. After the

comment or other pleadings required by the court are filed,
or the time for the filing thereof h a s expired, the court may
hear the case or require the parties to submit memoranda. If
after such hearing or submission of memoranda or the expi-
ration of the period for the filing thereof the court finds that
the allegations of the petition are true, it shall render judg-
ment for the relief prayed for or to w h i c h the petitioner is
entitled.
The court, however, m a y dismiss t h e petition if it finds
the same to be patently w i t h o u t merit, p r o s e c u t e d manifestly
for delay, or that the questions raised t h e r e i n are too unsub-
stantial to require consideration. (8a)
COMMENT:
1. Source of Rule
SEC. 8. Proceedings after answer is filed. Once the answer is
filed, or the time for its filing has expired, the court may order the
proceedings complained of to be forthwith certified up for review and
shall hear the case, and if after such hearing the court finds that the
allegations of the petition are true, it shall render judgment for such
of the relief prayed for as the petitioner is entitled to, with or without
costs, as justice requires.
2. Changes in Rule
Under the present Rule, the court no longer orders the proceed-
ings complained of to be forthwith certified up for review. After the
comment or other pleadings required by the court are filed, or the
time for the filing thereof has expired, the court may hear the case or
require the parties to submit memoranda. If after such hearing or
submission of memoranda or the expiration of the period for the
filing thereof the court finds that the allegations of the petition are
true, it shall render judgment for the relief prayed for or to which
the petitioner is entitled.
Unlike, the former rule which uses the term "shall hear the
case" under the present rule, the court may dismiss the petition
364
after the filing of the comment without holding a hearing or requir-

ing memoranda.
a. Effect of Failure to Comment/Answer
The non-filing of the comment/answer by the private respond-
ents cannot be interpreted as an admission of the allegations in the
petition. Under Section 8, Rule 65 (which is the applicable rule and
not Sec. 1, Rule 9 stating that allegations not specifically denied are
deemed admitted), upon the expiration of the period to file his com-
ment, the court may hear the case, or require the parties to submit
memoranda and if after such hearing or submission of memoranda,
the court finds t h a t the allegations of the petition are true, it shall
render judgment for such of the relief prayed for as the petitioner is
entitled to." Conversely, if the court finds the allegations to be false,
then it is not duty bound to grant any of the reliefs sought, and may
1
dismiss the petition outright.
b. Award of D a m a g e s
(1) No damages can be assessed in Certiorari the merits not
2
being before the Court.
It may be noted that the present Rule allows such incidental
reliefs as law and justice may require. (Sees. 1 and 2)
(2) Damages maybe awarded in Mandamus where bad faith
3
is shown.
c. Where the issue of damages was raised in the pleadings
and in the proceedings before the trial court where evidence was
presented and is totally distinct and separate from the issue of
4
mandamus; damages may be awarded.
5
d. The statute of limitations does not apply to Mandamus.
^ n g v. Court of Appeals, 237 SCRA 797 (1994).

2
Herrera v. Barretto, 26 Phil. 304.
3
October v. Ybanez, 111 SCRA 79; Syjuco v. Castro, et al., 175 SCRA 171, July 7,
1989; Vital-Gozon v. CA, 212 SCRA 235 (1992).
The Executive Secretary v. Court of Appeals, 162 SCRA 51, June 10, 1988.
6
Flordelis v. Mar, 114 SCRA 41.
365
VOL. Ill
e. The petition for writ of certiorari may be treated as for

prohibition if the averments of the former sufficiently make out a
6
case for the latter.
f. Appellate Court may look into facts

Where the issue in mandamus is whether or not there was
grave abuse of discretion in dismissing the appeal, the Court of
Appeals, is clothed with discretion before issuing the writ to inquire
into the facts involved in order to determine whether once the writ is
granted, and the case is brought up on appeal, the appellant has any
7
chance of having the decision of the trial court set aside.
SEC. 9. Service and enforcement of order or judgment.

A certified copy of the judgment r e n d e r e d in accordance w i t h
the last preceding section shall be s e r v e d u p o n t h e court,
quasi-judicial agency, tribunal, corporation, board, officer
or person c o n c e r n e d in s u c h m a n n e r as t h e court m a y direct,
and disobedience thereto shall be p u n i s h e d as contempt. An
execution m a y issue for any d a m a g e s or costs a w a r d e d in
accordance w i t h Section 1, Rule 39. (9a)
COMMENT:
1. Source of Rule
Taken from SEC. 9, of the former Rule which reads:
Service and enforcement of order of judgment. A certified
copy of the judgment shall be served upon the tribunal, corporation,
board, officer, or person concerned in such manner as the court may
direct, and disobedience thereof punished as for contempt. An execu-
tion may issue as in other cases for any damages or costs awarded.
The judgment in these special actions is executed in the same
manner as in the execution of special judgments under Sec. 11 of Rule
39. The judgment for damages that may be awarded in mandamus is
executed in accordance with Sees. 1 and 9 of Rule 39. (Feria)
''Tuason v. Register of Deeds, 157 SCRA 613, 29 January 1988.

7
S e e Chung Federis v. Sunga, 134 SCRA 16. See also Section 6, Rule 46, Infra.;
For authority of Court to decide case on the merits. See Note 47 under Sec. 1, Infra.
366
PROCEDURAL OUTLINE
The procedure in the foregoing special civil actions may be

outlined as follows:
1. Filing of Petition (Sees. 1, 2, 3);
2. Outright Dismissal (if not sufficient in form and substance)
(Sec. 6);
3. Order to Comment if the petition is sufficient in form and
substance (to acquire jurisdiction over respondent) (Sec. 6).
The Court, however, may dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for delay,
or t h a t the questions raised therein are too unsubstantial to require
consideration (Sec. 8);
4. The court may require the filing of a reply and such other
responsive or other pleadings as it may deem necessary and proper
(Sec. 8);
5. Determination of Due Course (Sec. 6);
6. The court may hear the case or require the parties to
submit memoranda (Sec. 8);
7. Judgment;
8. Execution.
367
RULE 66
QUO WARRANTO
SECTION 1. Action by Government against individuals.

An action for the usurpation of a public office, position or
franchise may be c o m m e n c e d by a verified petition brought
in the name of the Republic of the P h i l i p p i n e s against:
(a) A person w h o usurps, intrudes into, or unlawfully
holds or exercises a public office, position or franchise;
(b) A public officer w h o d o e s or suffers an act w h i c h ,
by the provision of law, constitutes a g r o u n d for t h e forfei-
ture of his office;
(c) An association w h i c h acts as a corporation w i t h i n
the Philippines w i t h o u t b e i n g legally incorporated or with-
out lawful authority so to act. ( l a )
COMMENT:
1. Source of Rule
SECTION 1. Action by Government against individuals. An
action for the usurpation of office or franchise may be brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, or a franchise, or an office in a corporation
created by authority of law;
(b) A public officer who does or suffers an act which, by the
provisions of law, works a forfeiture of his office;
(c) An association of persons who act as a corporation within
the Philippines without being legally incorporated or without lawful
authority so to act.
368
Rule 66 QUO WARRANTO
Sec. 1
2. Changes in t h e Rule
The Rule deleted an office in a corporation created by authority
of law as this falls under the jurisdiction of the Securities and Ex-
change Commission under PD 902-A, and added "position" to the
present Rule.
a. Quo warranto
Is a prerogative writ by which the government can call upon
any person to show by what warrant he holds a public office or
exercises a public franchise.
It is a proceeding to determine the right to the use or exercise
of a franchise or office and to oust the holder from its enjoyment, if
his claim is not well-founded, or if he has forfeited his right to enjoy
1
the privilege.
b. Concept of Quo warranto

The writ of quo warranto is an ancient common law preroga-
tive writ and remedy. In its broadest sense it is a proceeding to
determine the right to the use or exercise of a franchise or office and
to oust the holder from its enjoyment, if his claim is not well-founded,
or if he has forfeited his right to enjoy the privilege. It is a demand
made through the State by some individual to show by what right an
individual or corporation exercises a franchise or privilege belonging
to the State, which according to the laws of the land they cannot
legally exercise except by virtue of a grant or authority from the
2
State.
Thus, the special civil action of quo warranto is a "prerogative
writ by which the Government can call upon any person to show by
what warrant he holds a public office or exercises a public fran-
3
chise." When the inquiry is focused on the legal existence of a body
politic, the action is reserved to the State in a proceeding for quo
warranto or any other direct proceeding. (Only in few exceptions may
^ o r t u n o v. Palma, 156 S C R A 691.

2
74 C . J . S . 174.
3
MORAN, COMMENTS ON THE RULES OF COURT, Vol. 3,1970 Ed., p. 208, citing Newman
v. U . S . 238 U . S . 537, 545, 56 L. Ed. 513.
369
VOL. Ill
a private person exercise this function of government, an example of

which is when the state law allows a private person to question the
regularity of the incorporation of an entity; see E. McQuillin, THE
LAW OF MUNICIPAL CORPORATIONS, sec. 3. 49, p. 592 (3rd Ed.,
1949). It must be brought "in the name of the Republic of the Philip-
4
pines" and commenced by the Solicitor General or the fiscal "when
5
directed by the President of the Philippines x x x." Such officers
may, under certain circumstances, bring such an action "at the re-
quest and upon the relation of another person" with the permission
6
of the court. The Rules of Court also allows an individual to com-
mence an action for quo warranto in his own name but this initiative
can be done when he claims to be "entitled to a public office or
7
position usurped or unlawfully held or exercised by another." While
the quo warranto proceedings filed below by petitioner municipality
has so named only the officials of the Municipality of San Andres as
respondents, it is virtually, however, a denunciation of the authority
of the Municipality or Municipal District of San Andres to exist and
8
to act in that capacity.
c. Subject matter of quo warranto

The subject matter of quo warranto maybe a Public office; Fran-
chise, Corporate office act or right. So, usually, the quo warranto
action is commenced by the Solicitor-General or a fiscal when di-
rected by the President of the Philippines, or when upon complaint
or otherwise he has good reason to believe t h a t proper action by the
9
State against an individual or a corporation would lie.
d. Jurisdiction to issue writ

The application of the writ has been expanded to include an
action by a person claiming to be entitled to a public office or posi-
10
tion usurped or unlawfully held or exercised by another.
4
Sec. 1(c), Rule 66, Rules of Court.
5
Sec. 3, ibid.
6
Sec. 4, ibid.
7
Sec. 6, ibid.
^Municipality of San Narciso v. Hon. Antonio v. Mendez, Sr., et al., 57 SCAD
332, 239 SCRA 11, December 6, 1994.
9
Sec. 3, Rule 66, Rules of Court.
10
Sec. 6, Rule 66, Rules of Court; Palma Fernandez v. Dela Paz, 160 SCRA 751.
370
Rule 66 QUO WARRANTO Sec. 1
Original jurisdiction to issue the writ of quo warranto is vested

in the Supreme Court, the Intermediate Appellate Court and the
11
Regional Trial Court.
e. Quo warranto in election c a s e s

The remedy of quo warranto has been extended to cover a
voter's action contesting the election of any officer on the ground of
ineligibility or disloyalty to the State and jurisdiction over such
12
action is vested in the COMELEC or to the disqualification to be
13
proclaimed Governor on grounds of lack of Filipino citizenship,
which can only be commenced by the Solicitor General or a person
14
claiming to be entitled to the public office or position.
Under the Omnibus Election Code of the Philippines:
Sec. 253. Petition for Quo warranto. Any voter contesting the
election of any member of the Batasang Pambansa, regional, provin-
cial, or city officer on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo war-
ranto with the Commission (on Elections) within ten days after the
15
proclamation of the results of the election.
Any voter contesting the election of any municipal or barangay
officer on the ground of ineligibility or of disloyalty to the Republic of
the Philippines shall file a sworn petition for quo warranto with the
regional trial court or metropolitan, or municipal trial court, respec-
tively, within ten days after the proclamation of the results of the
16
election.
Where quo warranto was already filed disqualifying petitioner
on the ground of citizenship, certiorari and prohibition was dis-
17
missed.
"Sees. 9(1) and 21(1), Batas Pambansa Big. 129; Sec. 5(1), Article VIII, 1987
Constitution.
12
2 n d paragraph, Sec. 189, 1978 Election Code; Regatcho v. Cleto, 126 SCRA
342.
"Republic of the Philippines v. De la Rosa, 232 SCRA 785, June 6, 1994.
14
Tarrosa v. Singson, 232 SCRA 553, May 25, 1994.
15
Art. XVIII, Sec. 189, par. 2, 1978 EC.
16
Art. XVIII, Sec. 189, par. 2 , 1 9 7 8 EC.
17
S i m v. Ofiana, 135 SCRA 124; See also Crisostomo v. Dumlao, G.R. No. 81898,
23 Feb. 1988, Minute Resolution.
371
VOL. Ill
f. Distinguished from Mandamus

Quo warranto is the remedy to try that right to an office or
franchise; mandamus does not lie to try disputed titles but merely to
18
enforce clear legal duties.
Where there is usurpation or intrusion, quo warranto is the
19
proper remedy. Where, however, the respondent, without claiming
any right to an office, excluded the petitioner therefrom, the remedy
20
is mandamus.
Quo warranto tests the title to one's office claimed by another
and has its object the ouster of the holder from its enjoyment while
mandamus avails to enforce clear legal duties and not to try dis-
puted titles Thus, considering that Concepcion continuously occu-
pies the disputed position and exercises the corresponding functions
therefore, the proper remedy should have been quo warranto and
not mandamus. Quo warranto tests the title to one's office claimed
by another and has as its object the ouster of the holder from its
enjoyment, while mandamus avails to enforce clear legal duties and
21
not to try disputed titles.
g. Distinguished from Election Contest

If the dispute is as to the counting of votes or on matters con-
nected with the conduct of the election, quo warranto is not the
22
proper remedy but an election protest.
An election protest is a contest between the defeated and win-
ning candidates on the ground of frauds or irregularities in the
casting and counting of the ballots, or in the preparation of the
returns. It raises the question of who actually obtained the plurality
23
of the legal votes and therefore is entitled to hold the office.
When the dispute is on the ineligibility to office of the person
sought to be ousted or disqualified, quo warranto is the proper ac-
18
Lota v. Court of Appeals, 2 SCRA 715, June 30, 1961.
19
N u e n o v. Angeles, 76 Phil. 12; Cuyegkeng v. Cruz, 108 Phil. 1147, July 26,
1960.
20
Manalo v. Sevilla, 24 Phil. 609; Luna v. Rodriguez, 36 Phil. 748.
21
Garces v. Court of Appeals, July 17, 1996, 259 SCRA 99.
22
Cesar v. Garrido, 53 Phil. 97.
^Samad v. COMELEC, 43 SCAD 452, 224 SCRA 631.
372
24
tion. It is a proper proceeding to determine disputed questions of
title to public office where such questions relate exclusively to mat-
25
ters disassociated with those settled at the polls by the people.
Thus, quo warranto is not the proper remedy where both the
petitioner and the private respondent claims to have assumed the
office (of Mayor). In quo warranto, the petitioner is not occupying
the position in dispute. Moreover, under the Omnibus Election Code,
quo warranto is proper only for the purpose of questioning the eligi-
bility of a candidate on the ground of disloyalty or ineligibility of the
winning candidate. It is a proceeding to unseat the respondent from
26
office but not necessarily to install the petitioner in his place.
Quo warranto or election protest can serve as the venue in
resolving the issue of disqualification, instead of a remand to the
27
COMELEC.
h. Quo warranto as to elective a n d appointive office

distinguished
In quo warranto proceedings referring to offices filled by elec-
tion, what is to be determined is the eligibility of the candidate elect.
If filled by appointment what is determined is the legality of
the appointment.
In the first case, the court cannot declare that the candidate
occupying the second place has been elected even if he were eligible,
etc. (this depends on the law).
In the second case, the Court determines who has been legally
appointed and can and ought to declare who is entitled to occupy the
28
office.
i. The inquiry m a y e x t e n d to the determination of the
29
validity of the l a w authorizing of the office or a p p o i n t m e n t s
But, if the appointee has qualified and entered into the per-
formance of his duties, he cannot be removed therefrom except for
24
Fortuno v. Palma, 156 SCRA 691; Cesar v. Garrido, Supra.
25
R e m a t a v. Javier, 36 Phil. 483.
26
S a m a d v. COMELEC, 43 SCAD 452, 224 SCRA 631 (1993).
27
Ituriaga v. COMELEC, 136 SCRA 247, 248.
^Nuval v. Guray, 52 Phil. 645, 653, 654.
29
3 Moran, p. 220, 1980 Ed.
373
VOL. Ill
cause or in the manner provided for by law. The extraordinary legal

30
remedy of quo warranto does not lie against him.
An order to be assailed and annulled on the ground that the
judge was no longer a member of the judiciary, a direct proceedings
for quo warranto must be initiated thru a direct and not merely by
31
collateral attack following the doctrine in Tayko v. Capistrano.
SEC. 2. When Solicitor General or public prosecutor must

commence action. The Solicitor General or a public pros-
ecutor, w h e n directed by t h e P r e s i d e n t of t h e Philippines, or
w h e n upon complaint or o t h e r w i s e he h a s g o o d reason to
believe that any case specified in t h e p r e c e d i n g section c a n
be established by proof, m u s t c o m m e n c e s u c h action. (3a)
COMMENT:
1. Source of Rule
Taken from Section 3 of the former Rule. No change except
"public prosecutor" instead of Fiscal was used.
SEC. 3. When Solicitor General or public prosecutor may

commence action with permission of court. The Solicitor
General or a public prosecutor may, w i t h t h e p e r m i s s i o n of
the court in w h i c h the a c t i o n is to be c o m m e n c e d , bring s u c h
an action at the request a n d u p o n t h e relation of a n o t h e r
person; but in s u c h c a s e t h e officer bringing it m a y first
require an i n d e m n i t y for t h e e x p e n s e s a n d costs of t h e ac-
tion in an amount approved by a n d to be d e p o s i t e d in t h e
court by the p e r s o n at w h o s e request a n d u p o n w h o s e rela-
tion the same is brought. (4a)
30
Serafin v. Cruz, 58 Phil. 611.
31
5 3 Phil. 866; Gamboa v. CA, 108 SCRA 1.
374
Rule 66 QUO WARRANTO Sees. 4-5
COMMENT:
1. Source of Rule
Taken from Section 4, No substantial change.
"Public prosecutor" instead of Fiscal was used.
SEC. 4. When hearing had on application for permission

to commence action. U p o n application for permission to
c o m m e n c e s u c h action in a c c o r d a n c e w i t h the next preced-
i n g section, t h e court shall direct that notice be given to the
r e s p o n d e n t s o that h e m a y b e h e a r d i n opposition thereto;
and if p e r m i s s i o n is granted, t h e court shall issue an order to
that effect, c o p i e s of w h i c h shall be s e r v e d on all interested
parties, a n d t h e p e t i t i o n shall t h e n be filed w i t h i n the period
ordered by the court. (5a)
COMMENT:
1. Source of Rule
SEC. 5. When hearing had on application for permission to
commence action. Upon application for permission to commence
such action in accordance with the last preceding section, the court
may direct that notice be given to the defendant so that he may be
heard in opposition thereto; and if permission is granted, entry thereof
shall be made on the docket, or the fact shall be noted by the judge on
the complaint, which shall then be filed.
2. Change in t h e Rule
Under the present Rule, "if permission is granted, the court
shall issue an order to that effect, copies of which shall be served on
all interested parties, and the petition shall then be filed within the
period ordered by the court."
SEC. 5. When an individual may commence such an ac-

tion. A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by another
may bring an action therefor in his o w n name. (6)
375
VOL. Ill
COMMENT:
1. Source of the Rule No Change
SEC. 6. Parties and contents of petition against usurpa-

tion. When the action is against a person for usurping a
public office, position or franchise, the petition shall set forth
the name of the person w h o claims to be entitled thereto, if
any, with an averment of his right to the same and that the
respondent is unlawfully in p o s s e s s i o n thereof. All persons
w h o claim to be entitled to the public office, position or fran-
chise may be made parties, a n d their respective rights to
such public office, position or franchise determined, in the
same action. (7a)
COMMENT:
1. Source of Rule
Taken from SEC. 7. What complaint for usurpation to set forth,
and who may be made parties with no substantial change.
2. Notes
1
An individual must show his right to the office. There must be
2
an allegation that respondent is either a de facto or de jure officer.
If quo warranto is merely to test the validity of a corporate
resolution incorporators need not be included. There is no need to
notify the Solicitor General if the action is commenced against re-
3
spondent as an intruder not as an official.
SEC. 7. Venue. An action u n d e r t h e p r e c e d i n g six sec-

tions can be brought only in the S u p r e m e Court, t h e Court of
Appeals, or in the Regional Trial Court e x e r c i s i n g jurisdic-
tion over the territorial area w h e r e t h e r e s p o n d e n t or any of
the respondents resides, but w h e n t h e Solicitor General com-
m e n c e s the action, it m a y be brought in a Regional Trial
'Acosta v. Flor, 5 Phil. 18; Topacio Nueno v. Angeles, 76 Phil. 12.

2
Enage v. Martinez, 52 Phil. 896, 898.
3
Gov't. of the Phil. Island v. El Ahorro Insular, 59 Phil. 199.
376
Court in t h e City of Manila, in t h e Court of Appeals, or in the

Supreme Court. (8a)
COMMENT:
1. Source of t h e Rule
Taken from SEC. 8 of the former rule which reads: "Venue.
An action under the last preceding seven sections can be brought only
in the Supreme Court or in the Court of First Instance of the province
in which the defendant, or one of the defendants, resides, or, when the
defendant is a corporation, in the province in which it is domiciled or
has a place of business; but when the Solicitor General of the Philip-
pines commences the action, it may be brought in a Court of First
Instance in the City of Manila or in the Supreme Court."
2. C h a n g e s in t h e Rule
The present rule allows the filing of quo warranto not only in
the Supreme Court but also in the Court of Appeals or in the Re-
gional Trial Court exercising jurisdiction over the territorial area
where the respondent or any of the respondents resides.
The CA has concurrent original jurisdiction with the Supreme
Court in all actions of quo warranto. The Regional Trial Court which
has territorial jurisdiction over the area where the respondent re-
sides also has concurrent original jurisdiction. The Sandiganbayan
has original jurisdiction in quo warranto arising in cases filed under
E.O. Nos. 1, 2, 14, 14-A, but this must be in aid of its appellate
1
jurisdiction and is not exclusive of the Supreme Court.
a. Exclusive Jurisdiction of Securities and Exchange
Commission against Corporations
Under Section 5 of Presidential Decree No. 902-A as amended
by PD No. 1758 the Securities and Exchange Commission jurisdic-
tion over corporations, partnerships and other forms of association
registered with it includes original and exclusive jurisdiction to hear
and decide controversies between such corporation partnership or
'Sec. 4 of PD 1606 as amended by RA 8249. (Feria).
377
VOL. Ill
associations and the state insofar as it concerns their individual

franchise or right to exist as such entity (Sec. 5[b]); and controver-
sies in the election or appointment of directors, trustees, officers or
managers of such corporations, partnerships or associations (Sec.
5[cJ).
PD 902-A as amended modified Section 8 of Rule 66, as follows:
Actions against corporations under Sec. 2 now falls under the
original and exclusive jurisdiction of the Securities and Exchange
Commission pursuant to Section 5(b) of PD 902-A as it involves
controversies between the corporation and the State insofar as it
concerns their individual franchise and right to exist as such entity.
Similarly, actions under Section 1(a), Rule 66 against a person
who usurps, intrudes into, or unlawfully holds an office in a corpora-
tion created any authority of law; and actions involving controver-
sies in the election or appointment of directors, trustees, officers or
managers of corporations, partnerships or associations fall under
the original and exclusive jurisdiction of the Securities and Exchange
Commission pursuant to Section 5(c) of PD 902-A, as amended.
However, the ADJUDICATORY FUNCTION OF THE SECU-
RITIES AND EXCHANGE COMMISSION WAS TRANSFERRED
TO COURTS OF GENERAL JURISDICTION or the appropriate
Regional Trial Court cases involving:
(a) Devices or schemes employed by or any acts, of the board
of directors, business associates, its officers or partners, amounting
to fraud and misrepresentation which may be detrimental to the
interest of the public and/or of the stockholder, partners, members of
associations or organizations registered with the Commission.
(b) Controversies arising out of intra-corporate or partner-
ship relations, between and among stockholders, members, or asso-
ciates: between any or all of them and the corporation, partnership
or association of which they are stockholders, members or associ-
ates, respectively, and between such corporation, partnership or as-
sociations and the state insofar as it concerns their individual fran-
chise or right to exist as such entity.
(c) Controversies in the election or appointments of direc-
tors, trustees, officers or managers of such corporations, partner-
ships or associations.
378
(d) Petition of corporations, partnerships or associations to

be declared in the state of suspension of payments in cases where
the corporation, partnership of association possesses sufficient prop-
erty to cover all its debts but foresees the impossibility of meeting
them when they respectively fall due or in cases where the corpora-
tion, partnership or association has no sufficient assets to cover its
liabilities, but is under the management of a Rehabilitation Re-
ceiver or Management Committee created pursuant to this Decree.
Sec. 5, PD 902-A (As amended by PD No. 1758) and further amended
by the Securities Regulation Code transferring jurisdiction of the
2
Regional Trial Courts.
These cases are to be tried under the following special rules:
A. INTERIM RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000) EFFECTIVE DECEMBER 15, 2000;
B. INTERIM RULES OF PROCEDURE GOVERNING IN-
TRACORPORATE CONTROVERSIES UNDER R.A. NO. 8799 EF-
FECTIVE APRIL 1, 2001;
C. A.M. NO. 00-8-10 SC: TRANSFER OF CASES FROM THE
SECURITIES AND EXCHANGE COMMISSION TO THE RE-
GIONAL TRIAL COURTS EFFECTIVE OCTOBER 1, 2001;
D. A.M. NO. 00-8-10 SC: CLARIFICATION ON THE LEGAL
FEES TO BE COLLECTED AND THE APPLICABLE PERIOD OF
APPEAL IN CASES FORMERLY COGNIZABLE BY THE SECURI-
TIES AND EXCHANGE COMMISSION.
SEC. 8. Period for pleadings and proceedings may be

reduced. Action given precedence. The court may reduce
the period provided by t h e s e Rules for filing pleadings and
for all other proceedings in the action in order to secure the
m o s t e x p e d i t i o u s d e t e r m i n a t i o n of t h e matters involved
therein consistent w i t h the rights of the parties. Such action
may be given p r e c e d e n c e over any other civil matter pend-
ing in the court. (9a)
2
Sec. 5.2. Securities Regulation Code (R.A. 8799). A.M. No. 03-03-03 SC desig-
nated the previously designated SEC Courts as Special Commercial Courts.
379
VOL. Ill
COMMENT:
1. Source of the Rule
SEC. 9. Time for pleadings and proceedings may be shortened.
Action given precedence. The court may shorten the time provided
by these rules for filing pleadings and for all other proceedings in the
action, so as to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties.
Such action may be given precedence over any other civil business
pending in the court.

The new Rule stresses that such action may be given prec-
edence over any other civil matter pending in the court.
SEC. 9. Judgment where usurpation found. When the

respondent is found guilty of usurping, intruding into, or
unlawfully holding or e x e r c i s i n g a public office, position or
franchise, j u d g m e n t shall be r e n d e r e d that s u c h r e s p o n d e n t
be ousted a n d altogether e x c l u d e d therefrom, a n d that t h e
petitioner or relator, as t h e c a s e m a y be, recover h i s costs.
Such further j u d g m e n t m a y be r e n d e r e d d e t e r m i n i n g t h e
respective rights in a n d to t h e public office, p o s i t i o n or fran-
chise of all the parties to t h e a c t i o n as j u s t i c e requires. (10a)
COMMENT:
Taken from section 10 of the former rule without any substan-
tial change. Instead of the terms "plaintiff' or "defendant" the new
rule changed it to "petitioner" or "respondent."
SEC. 10. Rights of persons adjudged entitled to public

office; Delivery of books and papers. Damages. If j u d g m e n t
be rendered in favor of the person averred in t h e complaint
to be entitled to the public office he may, after taking the
oath of office and e x e c u t i n g any official b o n d required by
380
law, take u p o n himself the e x e c u t i o n of the office, and may

immediately thereafter d e m a n d of the respondent all the
books a n d papers in the respondent's custody or control ap-
pertaining to t h e office to w h i c h t h e j u d g m e n t relates. If the
r e s p o n d e n t refuses or n e g l e c t s to deliver any book or paper
pursuant to s u c h demand, he m a y be p u n i s h e d for contempt
as h a v i n g d i s o b e y e d a lawful order of t h e court. The person
adjudged entitled to t h e office m a y also bring action against
the r e s p o n d e n t to recover t h e d a m a g e s s u s t a i n e d by such
p e r s o n by r e a s o n of t h e usurpation. (15a)
COMMENT:
Taken from Section 15 of the former rule without any substan-
tial change. Instead of the terms "plaintiff" or "defendant" the new
2. Notes
a. Individuals m u s t h a v e Right to Office
No individual can bring a civil action relating to the usurpation
of public office without averring that he has a right to the same; and
at any stage of the proceedings, if it be shown that such individual
has no such right, the action may be dismissed because there is no
legal ground upon which it may proceed when the fundamental
basis of such action is destroyed as is the case here. Thus, in Acosta
v. Flor, after all of the evidence presented by the plaintiff had been
introduced, it was found, and he himself so admitted that he had
failed to establish in any way, shape, or form that he had any right
to the office of municipal president of the town of Laoag as he had
alleged in his complaint without foundation for such allegation. Con-
sequently, the judge very properly acquitted the defendant of the
1
complaint.
The court held that whenever before judgment it is conclu-
sively proven that the plaintiff has no right to maintain the action
'Acosta v. Flor, 5 Phil. 18.
381
VOL. Ill
since he has not the essential conditions required by law in order to

bring and maintain such action, his complaint should be dismissed
and it becomes unnecessary to pass upon the right of the defendant
who has a perfect right to the undisturbed possession of his office,
unless the action is brought by a person having a right to maintain
2
the same under the law.
3. Exception: When Action is Brought by Fiscal
The court may only pass upon the right of the defendant when
the justice of the case so demands. But this only refers to cases
where the action is brought by the Attorney-General or by the Pro-
vincial fiscal, as the case may be. In such cases, it is not necessary
that there be a person claiming to be entitled to the office alleged to
have been usurped, because although there be no such person, as in
the case of a vacant office, for instance, the fiscal could and even
should bring such action against the person usurping the office in
accordance with the provisions of Sections 199 and 200 (now Sees. 3
and 7 of Rule 66) respectively, as the case may be. The manner in
which judgment should be rendered according to Section 7 perfectly
meets the various cases provided for in the rules; and it becomes the
duty of the court to pass upon the rights of the defendant only
whenever it is not an essential requisite for the due prosecution of
the action that there be a person claiming to be entitled to the office
thus usurped, something which only happens where the Attorney-
General or the fiscal of any province brings the action against the
usurper.
Thus, the court refused to pass upon the validity or nullity of

the election of the defendant, for the reason, among others which it
is not necessary to state that the defendant (plaintiff) has no right to
3
maintain such an action.
SEC. 11. Limitations. N o t h i n g c o n t a i n e d in this Rule

shall be construed to authorize an action against a public
officer or employee for his ouster from office u n l e s s t h e same
be c o m m e n c e d w i t h i n o n e (1) year after the c a u s e of s u c h
2
lbid.
3
Acosta v. Flor, 5 Phil. 18.
382
ouster, or t h e right of t h e petitioner to hold such office or

position, arose; nor to authorize an action for damages in
accordance w i t h the provisions of the n e x t preceding sec-
tion u n l e s s t h e s a m e be c o m m e n c e d w i t h i n one (1) year after
the entry of t h e j u d g m e n t establishing the petitioner's right
to the office in question. (16a)
COMMENT:
Taken from Section 16 of the former Rule without substantial
change except the deletion of actions against corporation.
a. Court to e x e r c i s e e x t r e m e c a u t i o n
High, in his work on Extraordinary Legal Remedies, says at
page 606:
"It is to be observed in the outset that the courts proceed

with extreme caution in the proceeding which have for their
object the forfeiture of corporate franchises; a forfeiture will
not be allowed, except under express limitation, or for a plain
abuse of power by which the corporation fails to fulfill the
design and purpose of its organization."
In the case of State of Minnesota v. Minnesota Thresher Manu-

1
facturing Co., the court said (p. 518):
"The scope of the remedy furnished by it (quo warranto) is

to forfeit the franchises of a corporation for misuser or nonuser.
it is therefore necessary in order to secure a judicial forfeiture
of respondent's charter to show a misuser of its franchises jus-
tifying such a forfeiture. And as already remarked the object
being to protect the public, and not to redress private griev-
ances, the misuser must be such as to work or threaten a sub-
stantial injury to the public, or such as to amount to a violation
of the fundamental condition of the contract by which the fran-
l
3 L.R.A., 510.
383
VOL. Ill
chise was granted and thus defeat the purpose of the grant;
and ordinarily the wrong or evil must be one remediable in no
2
other form of judicial proceeding."
SEC. 12. Judgment for costs. In an action brought in

accordance with the provisions of this Rule, the court may
render judgment for costs against either t h e petitioner, the
relator, or the respondent, or the person or persons claiming
to be a corporation, or m a y apportion the costs, as justice
requires. (17a)
COMMENT:
1. Source of the Rule
Taken from Section 17 of the former rule without any substan-
tial change. Instead of the terms "plaintiff or "defendant" the new
2. Notes
a. Right to Bring Action for D a m a g e s
Under Section 15 of Rule 66 of the Rules of Court, the person
adjudged entitled to the office may also bring an action against the
defendant to recover the damages sustained by such person by rea-
1
son of the usurpation.
Dumlao instituted a quo warranto proceeding against the school
and its official contesting the legality of the meetings held by the
stockholders and their election of a new board of five trustees. The
Court of Appeals dismissed the petition, not by reason of the fact
that Dumlao's removal was lawful on the contrary it declared in
no uncertain terms that it was illegal but because the term of the
office he claims to have been usurped has expired. As a consequence,
Dumlao again sued the school for damages. The trial court awarded
damages in favor of Dumlao.
G o v e r n m e n t v. Phil. Sugar Estates Co., 38 Phil. Reports 15.
'Aguirre v. Dumlao, 158 SCRA 276 (1988).
384
Sec. 12
HELD:
The Court of Appeals' decision declaring that Dumlao's removal
was illegal is the law of the case between the parties. And under
Rule 66 of the Rules of Court he may also bring an action against the
2
defendant to recover damages sustained by him.
b. P e r i o d to file t h e action is o n e year

In actions for quo warranto involving the right to an office, the
action must be instituted within the period of one year from the time
the cause of action arose. The reason for this rule is that it is not
proper that the title to a public office be subjected to continued
uncertainty for the people's interest requires that such right be de-
3
termined as speedily as possible.
Thus, it was held in one case, the most fatal drawback of peti-
tioner's cause is that he came to the courts out of time. As already
stated, the appointment in controversy was made on November 23,
1973 and respondent Maliwanag assumed office on the strength
thereof, albeit she claims she has not been paid her salary. On the
other had, the petition herein was filed only on March 13, 1975,
clearly more than one year after the pretended right of petitioner to
hold the office in question arose. This single circumstance has closed
the door for any judicial remedy in his favor. Petitioner contends in
regard to this point that Section 16 of Rule 66 invoked by private
respondent refers to actions of quo warranto and since his petition is
also for certiorari and mandamus, said rule is inapplicable. Such
contention is not correct. As earlier noted in this decision, the allega-
tions supporting petitioner's cause or causes of action boil down to
no more than the removal of respondent Maliwanag from the posi-
tion to which she has been appointed in order to be replaced by him,
with a new appointment in his favor. Necessarily, the ouster of
Maliwanag by quo warranto has to be based on a nullification of her
appointment, which petitioner seeks, albeit unnecessarily, by certio-
rari. His ultimate remedy, therefore, is quo warranto. Besides, even
if it could be also viewed as mandamus, it is already settled that this
4
latter remedy prescribes also after one year. And it is of no avail to
2
Aguirre v. Dumlao, Supra.
3
Saturnino L. Villegas v. Victoriano de la Cruz, 15 SCRA 720.
Cornejo v. Sec. of Justice, L-32818, June 23, 1974, 57 SCRA 663.
385
VOL. Ill
petitioner that during the intervening period of more than one year,
he was seeking relief from the corresponding administrative au-
thorities. The recourse to such administrative remedy does not abate
5
the period for the judicial action.
c. Acceptance of Another Office is Abandonment
When a judge of first instance, presiding over a branch of a
Court of First Instance of a judicial district by virtue of a legal and
valid appointment, accepts another appointment to preside over the
same branch of the same Court of First Instance, in addition to
another court of the same category, both of which belong to a new
judicial district formed by the addition of another Court of First
Instance to the old one, enters into the discharge of the functions of
his new office and receive the corresponding salary, he abandons his
old office and cannot claim to be entitled to repose it or question the
constitutionality of the law by virtue of which his new appointment
has been issued; and, said new appointment having been disap-
proved by the Commission on Appointments of the National Assem-
bly, neither can he claim to continue occupying the office conferred
upon him by said new appointment, having ipso jure ceased in the
6
discharge of the functions thereof.
d. Period not s u s p e n d e d
The pendency of an administrative remedy does not suspend
the period within which a petition for quo warranto should be filed.
While it may be desirable that administrative remedies be first re-
sorted to, no one is compelled or bound to do so; and as said remedies
neither are prerequisite to, nor bar, the institution of quo warranto
proceedings, it follows that he who claims the right to hold a public
office allegedly usurped by another and who desires to seek redress
in the courts, should file the proper judicial action within the
reglementary period. Public interest requires that the right to a
7
public office should be determined as speedily as practicable.
5
Torres v. Quintos, 88 Phil. 436; Galano v. Roxas, G.R. L-31241, Sept. 12, 1975,
67 SCRA 8; Sison v. Pangramuyen, 84 SCRA 364.
6
F. Zandueta v. Sixto de la Costa, 66 Phil. Reports 615.
7
Torres v. Quintos, 88 Phil. Reports 436; Garcia v. Perez, 99 SCRA 628.
386
Quo warranto is the remedy to nullify the appointment of an

employee, not certiorari. The prescriptive period is one year. And
8
resort to administrative remedy does not abate judicial action.
e. Exception
9
However: In Cristobal v. Melchor, it was held that:
1. Laches does not attach and failure to file quo warranto
proceedings does not operate adversely against a dismissed employee,
where it was the act of responsible government officials which con-
tributed in the delay of the filing of the complaint for reinstatement.
2. Under the principle of equity, Courts will not be guided or
bound strictly by the Statute of Limitations or the dictum of laches
when to do so, manifest wrong and injustice would result.
8
Sison v. Pangramuyen, 84 SCRA 364; Palma Fernandez v. Dela Paz, 160
751; Cornejo v. Sec. of Justice, 57 SCRA 663.
9
7 8 SCRA 175.
387
RULE 67
EXPROPRIATION
SECTION 1. The complaint, The right of eminent do-

main shall be exercised by the filing of a verified complaint
which shall state w i t h certainty the right a n d purpose of
expropriation, describe t h e real or personal property sought
to be expropriated, and j o i n as defendants all persons own-
ing or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the separate
interest of each defendant. If t h e title to any property sought
to be expropriated appears to be in t h e Republic of t h e Phil-
ippines, although o c c u p i e d by private individuals, or if the
title is otherwise obscure or doubtful so that t h e plaintiff
cannot with accuracy or certainty specify w h o are t h e real
owners, averment to that effect shall be m a d e in the com-
plaint, (la)
COMMENT:
1. Source of Rule
No substantial change except the requirement for the complaint
to be verified and to show as far as practicable the separate interest
of each defendant.
The former title of Eminent Domain has been changed because
while eminent domain is the right, expropriation is the procedure
for enforcing said right.
a. The P o w e r of Eminent D o m a i n
Eminent domain, or the power of expropriation, is the author-
ity and right of the state, as sovereign, to take private property for
388
Rule 67 EXPROPRIATION Sec. 1
public use upon observance of due process of law and payment of

1
just compensation. It is a fundamental state power that is insepara-
ble from sovereignty. It is a government's right to appropriate, in the
nature of a compulsory sale to the State, private property for public
2
use or purpose. Cooley defined it as the right of the state to acquire
private property for public use upon payment of just compensation.
It is the rightful authority which exists in every sovereignty to con-
trol and regulate those rights of a private nature which pertains to
its citizens in common, and to appropriate and control individual
property for the public benefit, as the public necessity, convenience,
3
or welfare may demand.
Until expropriations proceedings are instituted in court, the
4
landowner cannot be deprived of its right over the land.
a.l N a t u r e of t h e Right of E m i n e n t Domain

The right of eminent domain is usually understood to be an
ultimate right of the sovereign power to appropriate any property
within its territorial sovereignty for a public purpose. Fundamental
to the independent existence of a State, it requires no recognition by
the Constitution, whose provisions are taken as being merely con-
firmatory of its presence and as being regulatory, at most, in the due
exercise of the power. In the hands of the legislature, the power is
inherent, its scope matching that of taxation, even that of police
power itself, in many respects. It reaches to every form of property
the State needs for public use and, as an old case so puts it, all
separate interests of individuals in property are held under a tacit
agreement or implied reservation vesting upon the sovereign the
right to resume the possession of the property whenever the public
interest so requires it.
The ubiquitous character of eminent domain is manifest in the
nature of the expropriation proceedings. Expropriation proceedings
are not adversarial in the conventional sense for the condemning
'Visayan Refining Co. v. Camus, 40 Phil. 550.

2
Moday v. Court of Appeals, 268 SCRA 586, February 20, 1997.
3
COOLEY'S CONST. LIMIT, 8th Ed., 1110.
P r o v i n c e of Rizal v. San Diego, 105 Phil. 33 (1959); Republic v. Baylosis,
Phil. 461 (1955); Greater Balanga Dev's. Corp. v. Municipality of Balanga, Dec.
1994, 239 SCRA 436.
389
VOL. Ill
authority is not required to assert any conflicting interest in the

property. Thus, by filing the action, the condemnor in effect merely
serves notice that it is taking title and possession of the property,
and the defendant asserts title or interest in the property, not to
prove a right to possession, but to prove a right to compensation for
the taking.
The power is not without its limits: first, the taking must be for
public use, and second, that just compensation must be given to the
private owner of the property. These twin proscriptions have their
origin in the recognition of the necessity for achieving balance be-
tween the State interests, on the one hand, and private rights, upon
the other hand, by effectively restraining the former and affording
protection to the latter. In determining "public use," two approaches
are utilized the first is public employment or the actual use by the
public, and the second is public advantage or benefit. It is also useful
to view the matter as being subject to constant growth, which is to
say that as society advances, its demands upon the individual so
increases, and each demand is a new use to which the resources of
5
the individual may be devoted.
b. Requisites for e x e r c i s e of right

For the valid exercise of the power of eminent domain, there
6
must be due process of law, payment of just compensation and the
7
taking must be for public use.
The limitations on the power of eminent domain are that the
use must be public, compensation must be made and due process of
8
law must be observed.
3. Due P r o c e s s of Law
Due process of law in connection with eminent domain simply
9
means compliance with the procedure fixed in the rule.
5
Luis Santos, 383 SCRA 611, July 2, 2002; See also ATO v. Gopucoga, G.R. No. 158563,
June 30, 2005.
^ i s a y a n Refining Co., et al. v. Camus, Supra.
7
J.M. Tuason and Co., Inc. v. Land Tenure Administration, 33 SCRA 882.
"Visayan Refining Co., et al. v. Camus, supra, cited in Moday v. Court of Ap-
peals, 268 SCRA 586, February 20, 1997.
"Visayan Refining Co. v. Camus, Supra.
390
Rule 67 of the Rules of Court lays down the procedure to be

followed in the expropriation of private property. The valid exercise
of eminent domain requires the filing of condemnation proceedings
in court and the payment of just compensation to the owners af-
10
fected.
4. Basis of t h e p r o c e e d i n g
The rule is that where private property is needed for conver-
sion to some public use, the first thing obviously that the govern-
ment should do is to offer to buy it. If the owner is willing to sell and
the parties can agree on the price and the other conditions of the
sale, a voluntary transaction can then be concluded and the transfer
effected without the necessity of a judicial action. Otherwise, the
government will use its power of eminent domain, subject to the
payment of just compensation, to acquire private property in order
11
to devote it to public use.
Expropriation, as a manifestation of the right of eminent do-
main of the estate and as a limitation upon private ownership, is
based upon the consideration t h a t it should not be an obstacle to
human progress and to the development of the general welfare of the
community. So much so, t h a t expropriation lies only when it is made
necessary by the opposition of the owner to the sale or by lack of any
agreement as to the price of the property subject to expropriation.
Thus, it has been held in a case that where there is a valid and sub-
sisting contract of purchase and sale of realty in which the price is
fixed and agreed upon by both parties, expropriation does not lie and
is baseless. If the rule be otherwise, "Expropriation would depart from
its own purposes and turn out to be an instrument to repudiate com-
12
pliance with obligations legally and validly contracted."
Under the Local Government Code, the power of eminent do-
main may not be exercised unless a valid and definite offer has been
13
previously made to the owner, and such offer was not accepted.
10
Clemente v. Municipal Board of Iloilo City, 98 Phil. 1011.
"Eslaban, Jr. v. Onorio, 360 SCRA 230, June 28, 200.
12
Noble v. City of Manila, 67 Phil. 1, 6; See also Manaay v. Juico, 175 SCRA 343
(1989).
13
Sec. 19, Chapter Two, R.A. No. 7160. For proper exercise by the Local Govern-
ment to expropriate see Filstream v. Court of Appeals, 284 SCRA 716, 731 (1998),
cited in Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes v. City of Manila, 422
SCRA 551, February 13, 2004.
391
VOL. Ill
5. Necessity of Expropriation
Until expropriation proceedings are instituted in court, the
14
landowner cannot be deprived of its right over the land. Thus, the
fact that land of private ownership is required to widen a public
street does not authorize the Government to seize the land. Expro-
priation is the proper method in such cases as provided by Rule 67 of
the Rules of Court. If property is taken otherwise, the courts will
15
restore the owner to its possession.
It is not, however, an indispensable prerequisite, although it is
advisable, that efforts to secure an amicable settlement be first made
16
before condemnation proceedings are instituted.
6. Who may exercise the p o w e r

The right of eminent domain may be exercised either directly
by the legislature or through the medium of corporate bodies or
individual enterprises, by virtue of delegation of power. The legisla-
ture, unless limited by constitutional restrictions, is entirely free to
17
use its discretion in the selection of agents to exercise the power.
Inherently possessed by the national legislature, the power of
eminent domain may be validly delegated to local governments, other
18
public entities and public utilities.
The provincial Sanggunian Bayan is without authority to dis-
approve a municipal resolution which has clearly the power to exer-
19
cise the right of eminent domain pursuant to Sec. 9 of BP Big. 337.
The grant of the power of eminent domain must, however, be
express and will never pass by implication, unless the implication
"Greater Balanga Development Corp. v. Municipality of Balanga, Bataan, 239

SCRA 436 (1994).
15
S a n t o s v. Director of Lands, 22 Phil. 424.
16
Manila Railroad v. Mitchel, 50 Phil. 832; See however note 6, infra.
17
2 0 C.J. 533.
18
Moday v. Court of Appeals, G.R. No. 107916, Feb. 20, 1997, 268 SCRA 586.
See Filstream v. Court of Appeals, 284 SCRA 716, 731 (1998), cited in Estate or Heirs
of the Late Ex-Justice Jose B.L. Reyes v. City of Manila, G.R. Nos. 132431 and 1371146,
February 13, 2004, holding that private lands rank last in the order of priority for the
purpose of socialized housing.
19
Moday v. Court of Appeals, G.R. No. 107916, February 20, 1997, 268 SCRA
586.
392
arises from a necessity so absolute that without it the grant itself

will be defeated. And when the power of eminent domain is granted
the extent to which it may be exercised is limited to the express
term or clear implication of the statute in which the grant is con-
20
tained.
As to the Government of the Philippines, no law is necessary to
confer this right upon it. The power of eminent domain is insepara-
ble from sovereignty. It is essential to the existence of the state and
21
inherent in government even in its most primitive forms. It is,
however, evident t h a t the power is dormant until the Legislature
22
sets it in motion. As aptly put in Visayan Refining Co. v. Camus:
"We would not of course pretend that, under our modern system of
Government, in which the legislature plays so important role, the
Executive Department, could without the authority of some statute,
proceed to condemn property for its own uses."
6.a When to Exercise

The rule is t h a t where private property is needed for conver-
sion to some public use, the first thing obviously that the govern-
ment should do is to offer to buy it. If the owner is willing to sell and
the parties can agree on the price and the other conditions of the
sale, a voluntary transaction can then be concluded and the transfer
effected without the necessity of a judicial action. Otherwise, the
government will use its power of eminent domain, subject to the
payment of just compensation, to acquire private property in order
23
to devote it to public use.
Sec. 12, Book III of the Revised Administrative Code does not
require prior unsuccessful negotiation as a condition precedent for
24
the exercise of eminent domain.
20
Tenorio v. Manila Railroad Company, 22 Phil. 411; see also Filstream v. Court
of Appeals, 284 SCRA 716, 731 (1998), cited in Estate or Heirs of the Late Ex-Justice
Jose B.L. Reyes v. City of Manila, supra.
21
Visayan Refining Co. v. Camus, Supra.
22
Supra.
^Biglang-Awa v. Bacalla, 345 SCRA 562, Nov. 22, 2000.
24
S M I Development Corporation v. Republic of the Philippines, 323 SCRA 862,
Jan. 28, 2000.
393
VOL. Ill
6.b Compliance with Conditions under the Local Gov-

ernment Code Mandatory
25
In Filstream v. Court of Appeals cited in Estate or Heirs of the
26
Late Ex-Justice Jose B.L. Reyes v. City of Manila the Court held
that expropriation proceedings are to be resorted to only after the
other modes of acquisition have been exhausted. Compliance with
these conditions is mandatory because they are the only safeguards
of oftentimes helpless owners of private property against violation of
due process when their property is forcibly taken from them for
public use.
REAL PARTIES-IN-INTEREST IN EMINENT DOMAIN
7. Who should be m a d e defendants

According to Section 1, the complaint shall join as defendants
all persons owning or claiming to own, or occupying, any part of the
expropriated land or interest therein. If a known owner is not joined
as defendant, he is entitled to intervene in the proceeding; or if he is
joined but not served with process and the proceeding is already
closed before he came to know of the condemnation, he may main-
27
tain an independent suit for damages.
The defendants in an expropriation case are not limited to the
ownership of the property condemned. They include all other persons
owning, occupying or claiming to own the property. When a parcel of
land is taken by eminent domain, the owner of the fee is not neces-
sarily the only person who is entitled to compensation, x x x In the
American jurisdiction, the term "owner" when employed in statutes
relating to eminent domain to designate the persons who are to be
made parties to the proceeding, refers, as is the rule in respect of
those entitled to compensation, to all those who have lawful interest
in the property to be condemned, xxx including a mortgagee, x x x a
lessee x x x and vendee in possession under an executory contract
x x x Every person having an estate or interest at law or in equity in
the land taken is entitled to share in the award's x x x If a person
26
2 8 4 SCRA 716, 731 (1998).
26
4 2 2 SCRA 551, February 13, 2004.
"Tenorio v. Manila Railroad Company, 22 Phil. 411.
394
claiming an interest in the land sought to be condemned is not made

a party, he is given the right to intervene and lay claim to the
28
compensation without the need of a hearing, x x x " Knecht v. CA.
8. Allegations in Complaint
The provision that the complaint in condemnation proceedings
shall state with certainty the right of condemnation is not of neces-
sary application to a case where the power of eminent domain is
29
specially and expressly conferred upon the plaintiff by statute.
SEC. 2. Entry of plaintiff upon depositing value with au-

thorized government depositary. U p o n the tiling of the com-
plaint or at a n y time thereafter and after due notice to the
defendant, t h e plaintiff shall h a v e t h e right to take or enter
u p o n t h e p o s s e s s i o n of t h e real property involved if he de-
posits w i t h the authorized government depositary an amount
equivalent to t h e a s s e s s e d v a l u e of the property for purposes
of taxation to be h e l d by s u c h bank subject to the orders of
t h e court. S u c h deposit shall be in money, u n l e s s in lieu
thereof t h e court authorizes the deposit of a certificate of
deposit of a g o v e r n m e n t b a n k of the Republic of the Philip-
p i n e s payable on d e m a n d to t h e authorized government de-
positary.
If personal property is involved, its value shall be provi-
sionally ascertained a n d t h e a m o u n t to be deposited shall be
promptly fixed by t h e court.
After s u c h deposit is m a d e the court shall order the
sheriff or other proper officer to forthwith place the plaintiff
in p o s s e s s i o n of t h e property involved and promptly submit
a report thereof to the court w i t h service of copies to the
parties. (2a)
29
2 9 0 SCRA 223, May 20, 1998.
29
Manila Railroad v. Mitchel, 50 Phil. 832.
395
VOL. Ill
COMMENT:
1. Source of Rule
SEC. 2. Entry of plaintiff upon depositing value with National
or Provincial Treasurer. Upon the filing of the complaint or at any
time thereafter the plaintiff shall have the right to take or enter upon
the possession of the real or personal property involved if he deposits
with the National or Provincial Treasurer its value, as provisionally
and promptly ascertained and fixed by the court having jurisdiction
of the proceedings, to be held by such treasurer subject to the orders
and final disposition of the court. Such deposit shall be in money,
unless in lieu thereof the court authorizes the deposit of a certificate
of deposit of a depository of the Republic of the Philippines payable
on demand to the National or Provincial Treasurer, as the case may
be, in the amount directed by the court to be deposited. After such
deposit is made the court shall order the sheriff or other proper officer
to forthwith place the plaintiff in possession of the property involved.
2. Changes in Rule
Under the present Rule the title was changed to Entry of plain-
tiff upon depositing value with authorized government depositary.
The deposit shall be made with the authorized government de-
positary an amount equivalent to the assessed value of the property
for purposes of taxation to be held by such bank subject to the orders
of the court. Such deposit shall be in money, unless in lieu thereof
the court authorizes the deposit of a certificate of deposit of a gov-
ernment bank of the Republic of the Philippines payable on demand
to the authorized government depositary.
The rule is applicable to personal property and it is involved,
then its value shall be provisionally ascertained and the amount to
be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or
other proper officer to forthwith place the plaintiff in possession of
the property involved and promptly submit a report thereof to the
court with service of copies to the parties.
The first part of this section with respect to the deposit of the
assessed value of the real property with the authorized government
396
depositary bank (formerly Philippine National Bank) is based on PD

42, since a subsequent decree amending this section was declared
1
unconstitutional.
In the light of the declared unconstitutionality of PD 76, PD
No. 1533 and PD No. 42 insofar as they sanction executive determi-
nation of just compensation in expropriation cases, it is imperative
that any right to the immediate possession of the subject property
accruing to the plaintiff must be firmly grounded on a valid compli-
2
ance with Section 2 of Rule 67.
It should however be noted t h a t under Section 19 of the Local
Government Code:
"A local government unit may, through its chief executive and
acting pursuant to an ordinance, exercise the power of eminent do-
main for public use, or purpose, or welfare for the benefit of the poor
and the landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of the prop-
erty upon the filing of the expropriation proceedings and upon mak-
ing a deposit with the proper court of at least fifteen percent (15%) of
the fair market value of the property based on the current tax decla-
ration of the property to be expropriated: Provided, finally, That, the
amount to be paid for the expropriated property shall be determined
by the proper court, based on the fair market value at the time of the
taking of the property.
a. Duty of Court
When condemnation proceedings are brought and immediate
possession of land is prayed, it is the duty of the court to promptly
and provisionally ascertain the value of the land involved and when
satisfied in this regard to enter the order for the prescribed deposit
E x p o r t Processing Zone Authority v. Dulay, 149 SCRA 305; National Power

Corp. v. Jocson, 206 SCRA 520.
2
P a n e s v. Visayas State College of Agriculture, G.R. No. 56219, November 27,
1966.
397
VOL. Ill
even though upon full inquiry its estimate may prove less or in
excess of the true value and even though claimants and owners have
3
not been heard.
The Rule was modified by Presidential Decree No. 42 Authoriz-
ing the Plaintiff in eminent domain proceedings to take possession
of the property involved upon depositing the assessed value for pur-
poses of taxation.
Under this Decree upon filing in the proper court of the
complaint in eminent domain proceedings or at anytime thereafter,
and after due notice to the defendant, plaintiff shall have the right
to take or enter upon the possession of the real property involved if
he deposits with the Philippine National Bank, in its main office or
any of its branches or agencies, an amount equivalent to the as-
sessed value of the property for purposes of taxation, to be held by
said bank subject to the orders and final disposition of the court.
Under the present Rule the deposit shall be with the author-
ized government depository.
4. Meaning of taking
There is "taking" of property under the power of eminent do-
main: (1) when the owner is actually deprived or dispossessed of his
property, or (2) when there is a practical destruction or a material
impairment of the value of his property, or (3) when he is deprived of
the ordinary use of his property, or (4) when he is deprived of the
4
jurisdiction, supervision and control of his property.
A number of circumstances must be present in the taking of
property for purposes of eminent domain: (1) the expropriator must
enter private property; (2) the entrance into private property must
be for more than a momentary period; (3) the entry into property
should be under warrant or color of legal authority; (4) the property
must be devoted to public use or otherwise, informally appropriated
or injuriously affected; and (5) the utilization of the property for
public use must be in a way as to oust the owner and deprive him of
5
all beneficial enjoyment of his property.
"Manila Railroad Co. v. Paredes, 31 Phil. 118.

Municipality of Carlota v. NAWASA, 12 SCRA 164; Republic of the Phils, v.
Sarabia, G.R. No. 157847, August 25, 2005.
6
Republic v. Vda. de Castellvi, 58 SCRA 336; See also Manaay v. Juicco, Supra.
398
Upon compliance with section 2, the issuance of a writ of execu-

6
tion by the Court is ministerial
The conduct of feasibility studies, information campaign and
detailed engineering surveys are not conditions precedent to the
issuance of a writ of possession against the property being expropri-
ated. Although compliance with these activities should indeed be
made prior to the decision to expropriate private property, the re-
quirements for issuance of a writ of possession once the expropria-
tion case is filed are expressly and specifically governed by Section 2
of Rule 67 of the 1997 Rules of Civil Procedure.
If such deposit is made, the court shall order the sheriff or
other proper officer to forthwith place the plaintiff in possession of
the property involved and promptly submit a report thereof to the
court with service of copies to the parties.
Thus, pursuant to Section 2 of Rule 67 of the 1997 Revised
Rules of Civil Procedure and the Robern Development Corporation
case, the only requisites for authorizing immediate entry in expro-
priation proceedings are: (1) the filing of a complaint for expropria-
tion sufficient in form and substance; and (2) the making of a deposit
equivalent to the assessed value of the property subject to expro-
priation. Upon compliance with the requirements the issuance of
7
the writ of possession becomes "ministerial."
Right of Petitioner to Dismiss Petition After He Has Been

Placed in Possession
8
In the early case of City of Manila v. Ruymann, the Court was
confronted with the question: May the petitioner, in an action for
expropriation, after he has been placed in possession of the property
and before the termination of the action, dismiss the petition? It
resolved the issue in the affirmative and held:
The right of the plaintiff to dismiss an action with the consent
of the court is universally recognized with certain well-defined ex-
ceptions. If the plaintiff discovers that the action which he com-
menced was brought for the purpose of enforcing a right or a benefit,
6
City of Manila v. Serrano, 359 SCRA 231, June 20, 2001.
7
Biglang-Awa v. Bacalla, Republic of the Philippines, G.R. Nos. 139927 and
139936, Nov. 22, 2000, supra.
8
3 7 Phil. 421 (1918).
399
VOL. Ill
the advisability or necessity of which he later discovers no longer

exists, or that the result of the action would be different from what
he had intended, then he should be permitted to withdraw his ac-
tion, subject to the approval of the court. The plaintiff should not be
required to continue the action, subject to some well-defined excep-
tions, when it is not to his advantage to do so. Litigation should be
discouraged and not encouraged. Courts should not require parties
to litigate when they no longer desire to do so. Courts, in granting
permission to dismiss an action, of course, should always take into
consideration the effect which said dismissal would have upon the
rights of the defendant.
Subsequently, in Metropolitan Water District v. De Los Ange-
9
les, the Court had occasion to apply the above-quoted ruling when
the petitioner, during the pendency of the expropriation case, re-
solved that the land sought to be condemned was no longer neces-
10
sary in the maintenance and operation of its system of waterworks.
5. Purpose of Deposit
The deposits required under this section serve the double pur-
pose for pre-payment if the property is finally expropriated, and an
11
indemnity for damages if the proceedings are dismissed.
In case of dismissal, it has been held that the claim may be
made either in a separate or in the same action, for all damages
occasioned by the institution of the expropriation proceedings, such
as: (1) loss resulting from the use and occupation of the land by the
expropriating entity; (2) expenses incurred by the owner of the land
during the pendency of the action including attorney's fees, etc.; (3)
destruction of buildings, canals, or growing crops at the time of the
12
occupation of the land by the plaintiff.
Thus, if any of the houses left on the land is destroyed by fire
during the period the plaintiff is in possession, the deposit herein
13
required may answer for the damages.
9
5 5 Phil. 776 (1931).
10
National Housing Authority v. Heirs of Isidro Guivelondo, 4 0 4 SCRA 389,
June 19, 2003.
"Visayan Refining Co. v. Camus, 40 Phil. 550.
^Metropolitan Water District v. De Los Angeles, 55 Phil. 776.
13
City of Manila v. Ruymann, 48 Phil. 611.
400
Where the State is the expropriator, it is not necessary to make

14
a deposit upon its taking of the condemned property.
6. Withdrawal of deposit
It would be premature to order the withdrawal of the deposit
before the damages resulting from the owner's dispossession of +hp
property shall have been determined and adjudicated, because this
would unjustly deprive them of this legal safeguard for the payment
of their damages in case they are finally held to have the right to
15
collect such damages in the same proceedings.
SEC. 3. Defenses and objections. If a defendant has no

objection or defense to t h e a c t i o n or t h e taking of his prop-
erty, he m a y file a n d serve a n o t i c e of appearance and a
manifestation to that effect, specifically d e s i g n a t i n g or iden-
tifying t h e property in w h i c h he claims to be interested,
w i t h i n the time s t a t e d in t h e s u m m o n s . Thereafter, he shall
be entitled to n o t i c e of all p r o c e e d i n g s affecting the same.
If a defendant h a s any objection to t h e filing of or the
allegations in t h e complaint, or any objection or defense to
the taking of h i s property, he shall serve his a n s w e r within
t h e time stated in the s u m m o n s . The a n s w e r shall specifi-
cally designate or identify t h e property in w h i c h he claims to
have an interest, state the n a t u r e a n d extent of the interest
claimed, a n d a d d u c e all his objections a n d defenses to the
taking of his property. No counterclaim, cross-claim or third-
party complaint shall be alleged or allowed in the answer or
any subsequent pleading.
A defendant w a i v e s all defenses and objections not so
alleged but the court, in the interest of justice, may permit
a m e n d m e n t s to the a n s w e r to be m a d e not later than ten (10)
days from the filing thereof. However, at the trial of the issue
of just compensation, w h e t h e r or not a defendant has previ-
ously appeared or answered, he may present evidence as to
the amount of the compensation to be paid for his property,
and he may share in the distribution of the award, (n)
14
Manaay v. Juico, Supra.
15
Republic v. Baylosis, 96 Phil. 461.
401
VOL. Ill
COMMENT:
1. Source of Rule
Under the former Rule: Sec. 3. Defenses and Objection Within
the time specified in the summons, each defendant, in lieu of an
answer, shall present in a single motion to dismiss or for other appro-
priate relief, all of his objections and defenses to the right of the
plaintiff to take his property for the use or purpose specified in the
complaint. All such objections and defenses not so presented are
waived. A copy of the motion shall be served on the plaintiffs attor-
ney of record and filed with the court with the proof of service.
2. Change in t h e Rule
This had been replaced with an entirely new Rule. An answer
is now required.
a) If a defendant has no objection or defense to the action or
the taking of his property, he may file and serve a notice of appear-
ance and a manifestation to t h a t effect, specifically designating or
identifying the property in which he claims to be interested, within
the time stated in the summons. Thereafter, he shall be entitled to
notice of all proceedings affecting the same.
b) If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense to the tak-
ing of his property, he shall serve his answer within the time stated
in the summons. The answer shall specifically designate or identify
the property in which he claims to have an interest, state the nature
and extent of the interest claimed, and adduce all his objections and
defenses to the taking of his property.
c) No counterclaim, cross-claim or third-party complaint shall
be alleged or allowed in the answer or any subsequent pleading.
d) The Third paragraph. A defendant waives all defenses
and objections not so alleged but the court, in the interest of justice,
may permit amendments to the answer to be made not later than
ten (10) days from the filing thereof. However, at the trial of the
issue of just compensation, whether or not a defendant has previ-
ously appeared or answered, he may present evidence as to the
amount of the compensation to be paid for his property, and he may
share in the distribution of the award, is entirely new.
402
Rule 67 EXPROPRIATION
Sec. 3
a. P o w e r of Court to Inquire into Legality of Right
Within the time specified in the summons, the defendants should
state whether or not they challenge plaintiff's right to condemn the
property; if the plaintiff's right is challenged, a hearing shall be had
upon the grounds thereof. There is no question that courts have the
power to inquire into the legality of the exercise of the right of
1
eminent domain and may deny such right, where, for instance, the
alleged public use specified in the complaint is not one of the pur-
2
poses authorized by law.
b. Public Good a n d G e n u i n e N e c e s s i t y
It is the rule in this jurisdiction that private property may be
expropriated for public use and upon payment of just compensation;
that condemnation of private property is justified only if it is for the
public good and there is genuine necessity therefor of a public char-
acter. Consequently, the courts have the power to inquire into the
legality of the exercise of the right of eminent domain and to deter-
3
mine whether or not there is a genuine necessity therefor.
So, if a defendant files a motion to dismiss (under the former
Rule) challenging the existence of a genuine necessity, he is entitled
4
to introduce evidence in support of his challenge.
c. Exercise of right of eminent domain political in char-

acter
The necessity and expediency of exercising the right of eminent
domain are questions essentially political and not judicial in charac-
ter. Consequently, the wisdom of converting ricelands into an indus-
trial site is within the proper exercise of Presidential prerogatives
5
and the Court may not inquire into it.
'City of Manila v. Chinese Community, 40 Phil. 349.

2
Manila Railroad Company v. Hacienda Benito, Inc., 37 O.G. 1957.
"City of Manila v. Chinese Community, 40 Phil. 349; Manila Railroad Company
v. Hacienda Benito, Inc., 37 O.G. 1957; Republic v. La Orden de P.P. Benedictinos de
las Islas Filipinas, 1 SCRA 647.
4
U r a n Estates, Inc. v. Montessa, et al., G.R. No. L-3830, March 15, 1951; Re-
public of the Phils, v. La Orden P.P. Benedictinos de las Islas Filipinas, 1 SCRA 647,
Feb. 28, 1961.
5
Pulido v. Court of Appeals, 122 SCRA 63.
403
VOL. Ill
The general power to exercise the right of eminent domain

must not be confused with the right to exercise it in a particular
case. The power of the legislature to confer, upon municipal corpora-
tions and other entities within the State, general authority to exer-
cise the right of eminent domain cannot be questioned by the courts,
but that general authority of municipalities or entities must not be
confused with the right to exercise it in particular instances. The
moment the municipal corporation or entity attempts to exercise the
authority conferred, it must comply with the conditions accompany-
ing the authority. The necessity for conferring the authority upon a
municipal corporation to exercise the right of eminent domain is
admittedly within the power of the legislature. But whether or not
the municipal corporation or entity is exercising the right in a par-
ticular case under the conditions imposed by the general authority,
6
is a question which the courts have the right to inquire into.
Private property may be expropriated for public use and upon
payment of just compensation; condemnation of property is justified
only if it is for the public good and there is genuine necessity therefor
of a public character. Consequently, the courts have the power to
inquire into the legality of the right of eminent domain and to deter-
7
mine whether or not there is a genuine necessity therefor.
The rule appears to be different when the power is exercised by
the legislative body. As stated in City of Manila v. Chinese Commu-
8
nity.
"The legislature, providing for the exercise of the power of emi-
nent domain, may directly determine the necessity for appropriat-
ing private property for a particular improvement for public use,
and it may select the exact location of the improvement. In such a
case, it is well-settled that the utility of the proposed improvement,
the extent of the public necessity for its construction, the expediency
of constructing it, the suitableness of the location selected and the
consequent necessity of taking the land selected for its site, are all
questions exclusively for the legislature to determine, and the courts
6
City of Manila v. Chinese Community, 40 Phil. 349.
7
Republic of the Philippines v. La Orden de P.P. Benedictinos de las Islas
Filipinas, 1 SCRA 649.
B
Supra.
404
have no power to interfere, or to substitute their own views for those

of the representatives of the people."
d. Meaning of public u s e
Although courts are not in agreement as to the tests to be
applied in determining whether the use is public or not, some go so
far in the direction of a liberal construction as to hold that public use
is synonymous with public benefit, public utility, or public advan-
tage, and to authorize the exercise of the power of eminent domain
to promote such public benefit, etc., especially where the interests of
9
the public are of considerable magnitude.
Public use means public usefulness, utility, or advantage, or
what is productive of the general benefit, so that any appropriation
of private property by the State under its right of eminent domain,
for purposes of great advantage to the community, is a taking for
10
public use.
e. N u m b e r of Beneficiaries
The test for a valid expropriation of private land for resale to
its occupants, is the number of families to be benefited thereby and
not the area. As stated by the Supreme Court:
"From the Reyes case where the number of beneficiaries
test was applied in determining public use down to the Guido
and Baylosis cases where the land or area size test was invoked
then to the Tuason case where a return to the Reyes decision
was made and then up to the recent case of Pulido v. Court of
11
Appeals, where the court found it 'unfortunate' that petitioner
would be deprived of his land holdings, but his interest and
that of his family should not stand in the way of progress
and the benefit of the greater inhabitants of the Country there
9
See City of Manila v. Arellano Colleges, 85 Phil. 663, citing the cases of Guido
v. Rural Progress Administration, G.R. No. L-2089, 84 Phil. 847 and Commonwealth
of the Philippines v. de Borja, 85 Phil. 51; Reyes v. NHA, 395 SCRA 495, Jan. 20, 2003.
10
Vol. 1, The Constitution of the Republic of the Philippines, p. 281 by BERNAS
citing Gold Realty Co. v. Hartfood, 104 A 2d 365, 368-9 (Conn. 1954); Reyes v. NHA,
supra.
u
1 2 2 SCRA 63, May 3, 1983.
405
VOL. Ill
has evolved a clear pattern of adherence to the "number of

12
people to be benefited test."
The expanded meaning of "public use" in the eminent domain
13
clause includes expropriation of raw land to convert into housing
projects for rent or sale to private persons or to construct irrigation
14
systems and sell water rights to farmers.
15
See, however, City of Mandaluyong v. Aguilar, holding that:
"While we adhere to the expanded portion of public use, the passage
of R.A. No. 7279, the "Urban Development and Housing Act of 1992"
introduced a limitation on the use and size of the land sought to be
expropriated for socialized housing. The law expressly exempted
"small property owners" from expropriation of their land in urban
land reform.
f. Slum Clearance
The conversion of a slum area into a model housing community
would directly benefit only those fortunate enough to acquire dwell-
ings in the homesite. Nonetheless, the people as a whole would
profit indirectly from the elimination of many problems engendered
in the slums, such as fire hazards, lack of proper sanitation, ugli-
ness, disease and the adverse effects of the subhuman conditions in
the place of the slum-dwellers in general. Slum clearance is there-
fore now regarded as a valid object of expropriation under the mod-
16
ern expanded interpretation of public use.
g. Other public p u r p o s e s
Among the recognized public uses are taking of property for
military posts, roads, streets, sidewalks, bridges, ferries, levees,
wharves, piers, public buildings including schoolhouses, parks, play-
grounds, plazas, market places, artesian wells, water supply and
17
sewerage systems, cemeteries, crematories and railroads.
12
M a t a a s na Lupa Tenants'Association, Inc. v. Dimayuga, 130 SCRA 30 (1984).
'"Constitution, Article III, Section 9.
"Sebastian Cosculluela v. Court of Appeals, 164 SCRA 393 (1988), or for Agrar-
ian Reform; Manaay v. Juico, Supra.
16
G.R. No. 137152, Jan. 29, 2001, 350 SCRA 4, 487.
16
Murray v. La Guardia, 52 N.E. 884; Reyes v. NHA, supra.
17
Malcolm Phil. Constitutional Law 374; Sena v. Manila Railroad Co., 42 Phil.
102; Reyes v. NHA, supra.
406
The expanded meaning of "public use" in the eminent domain

clause (Constitution, Article III, Section 9) includes expropriation of
raw land to convert into housing projects for rent or sale to private
persons or to construct irrigation systems and sell water rights to
18
farmers.
SEC. 4. Order of expropriation. If the objections to

a n d t h e d e f e n s e s against t h e right of t h e plaintiff to expro-
priate t h e property are overruled, or w h e n no party appears
to defend as required by this Rule, the court m a y issue an
order of expropriation declaring that t h e plaintiff h a s a law-
ful right to take t h e property sought to be expropriated, for
the public u s e or p u r p o s e described in the complaint, u p o n
t h e p a y m e n t of j u s t c o m p e n s a t i o n to be d e t e r m i n e d as of the
date of t h e t a k i n g of t h e property or t h e filing of the com-
plaint, w h i c h e v e r c a m e first.
A final order sustaining the right to expropriate the prop-
erty m a y be a p p e a l e d by a n y party aggrieved thereby. Such
appeal, however, shall n o t p r e v e n t the court from determin-
i n g t h e j u s t c o m p e n s a t i o n t o b e paid.
After t h e r e n d i t i o n of s u c h an order, the plaintiff shall
n o t be p e r m i t t e d to d i s m i s s or d i s c o n t i n u e t h e proceeding
except on s u c h terms as t h e court d e e m s just a n d equitable.
(4a)
COMMENT:
1. Source of Rule
SEC. 4. Order of condemnation. When such a motion is
overruled or when any party fails to defend as required by this rule,
"Sebastian Cosculluela v. Court of Appeals, 164 SCRA 393 (1988), or for Agrar-
ian Reform; Manaay v. Juico, Supra. For Expropriation for Urban Land Reform for
socialized housing under RA 7279 Urban Development and Housing ACT see Filstream
International, Inc. v. Court of Appeals, 284 SCRA 716 (1998); City of Mandaluyong v.
Aguilar, G.R. No. 137152, Jan. 29, 2001, 350 SCRA 487; City of Manila v. Serrano,
G.R. No. 142304, June 20, 2001. Filstream v. Court of Appeals, 284 SCRA 716, 731
(1998) was cited in Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes v. City of
Manila, G.R. NOB. 132431 and 137146, February 13, 2004, holding that private lands
rank last in the order of priority for the purpose of socialized housing, (supra)
407
VOL. Ill
the court may enter an order of condemnation declaring that the

plaintiff has a lawful right to take the property sought to be con-
demned, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the filing of the complaint. After the entry of such an order no
objection to the exercise of the right of condemnation shall be filed or
heard and the plaintiff shall not be permitted to dismiss or discon-
tinue the proceeding except on such terms as the court fixes.
2. Change in Rule
The epigraph has been changed to Order of Expropriation.
As earlier adverted to, an answer is now required instead of a
motion to dismiss.
The phrase "no objection to the exercise of the right of condem-
nation shall be filed or heard and the plaintiff shall not be permitted
to dismiss or discontinue the proceeding except on such terms as the
court fixes" after the entry of such an order, has been replaced by the
following provisions:
A final order sustaining the right to expropriate the property
may be appealed by any party aggrieved thereby. Such appeal, how-
ever, shall not prevent the court from determining the just compen-
sation to be paid.
After the rendition of such an order, the plaintiff shall not be
permitted to dismiss or discontinue the proceeding except on such
terms as the court deems just and equitable.
The second paragraph is a new provision, The defendant who
filed an answer objecting to the expropriation may appeal from the
order of expropriation by filing a record on appeal since there may
be a subsequent appeal from the judgment determining just com-
1
pensation.
3. Notes and Cases

a. Order of c o n d e m n a t i o n is final a n d appealable
The order of condemnation is by its nature not interlocutory
2
but final and appealable.
x
See Municipality of Binan v. Garcia, 180 SCRA 576.
2
Uriarte v. Teodoro, 86 Phil. 196; Municipality of Binan v. Garcia, 180 SCRA
576, Dec. 22, 1989.
408
Sec. 4
b. Two Stages in Expropriation Proceedings

There are two (2) stages in every action of expropriation. The
first is concerned with a determination of the authority of the plain-
tiff to exercise the power of eminent domain and the propriety of its
exercise in the context of the facts involved in the suit. It ends with
an order, if not of dismissal of the action, of "condemnation declaring
that the plaintiff has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the filing of the complaint." An order of dismissal, if this be
ordained, would be a final one, of course, since it finally disposes of
the action and leaves nothing more to be done by the Court on the
merits. So, too, would an order of condemnation be a final one, for
thereafter, as the Rules expressly state, in the proceedings before
the Trial Court, "no objection to the exercise of the right of condem-
3
nation (or the propriety thereof) shall be filed or heard."
The second phase of the eminent domain action is concerned
with the determination by the Court of "the just compensation for
the property sought to be taken." This is done by the Court with the
assistance of not more than three (3) commissioners. The order fix-
ing the just compensation on the basis of the evidence before, and
findings of, the commissioners would be final, too. It would finally
dispose of the second stage of the suit, and leave nothing more to be
done by the Court regarding the issue. Obviously, one or another or
the parties may believe the order to be erroneous in its appreciation
of the evidence or findings of fact or otherwise. Obviously, such a
dissatisfied party may seek reversal of the order by taking an appeal
4
therefrom.
Where petitioner did not appeal the Order of the trial court,
which declared that it has a lawful right to expropriate the proper-
ties of respondent, the Order became final and may no longer be
subject to review or reversal in any court. A final and executory
decision or order can no longer be disturbed or reopened no matter
how erroneous it may be. Although judicial determinations are not
Municipality of Binan v. Garcia, G.R. No. 69260, December 22, 1989, supra;
Barangay San Roque v. Heirs of Francisco Pastor, 334 SCRA 127, June 20, 2000; City
of Manila v. Serrano, 359 SCRA 231, June 20, 2001.
*Ibid.
409
VOL. Ill
infallible, judicial error should be corrected through appeals, not

5
through repeated suits on the same claim.
The payment of just compensation is to be determined as of the
date of the taking of the property or the filing of the complaint,
whichever came first.
SEC. 5. Ascertainment of compensation. U p o n the ren-

dition of the order of expropriation, the court shall appoint
not more than three (3) competent a n d disinterested persons
as commissioners to ascertain a n d report to t h e court the
just compensation for the property sought to be taken. The
order of appointment shall d e s i g n a t e t h e time a n d place of
the first session of the h e a r i n g to be h e l d by t h e commission-
ers and specify the time w i t h i n w h i c h their report shall be
submitted to the court.
Copies of the order shall be s e r v e d on t h e parties. Objec-
tions to the appointment of a n y of t h e c o m m i s s i o n e r s shall
be filed w i t h t h e court w i t h i n t e n (10) d a y s from service, a n d
shall be resolved w i t h i n thirty (30) d a y s after all t h e commis-
sioners shall h a v e r e c e i v e d c o p i e s of t h e objections. (5a)
COMMENT:
1. Source of Rule
SEC. 5. Ascertainment of compensation. Upon the entry of
the order of condemnation, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners to
ascertain and report to the court the just compensation for the prop-
erty sought to be taken. The order of appointment shall designate the
time and place of the first session of the hearing to be held by the
commissioners and specify the time within which their report is to be
filed with the court.
5
National Housing Authority v. Heirs of Isidro Guivelondo, G.R. No. 154411.
June 19, 2003, supra.
410
Upon the rendition of the order of expropriation, not upon entry

the court shall appoint not more than three (3) competent and disin-
terested persons as commissioners.
2. No substantial Change
The second paragraph "copies of the order shall be served on
the parties. Objections to the appointment of any of the commission-
ers shall be filed with the court within ten (10) days from service,
and shall be resolved within thirty (30) days after all the commis-
sioners shall have received copies of the objections.'' Is a new provi-
sion.
a. Right to J u s t Compensation
One of the basic principles enshrined in our Constitution is
that no person shall be deprived of his private property without due
process of law; and in expropriation cases, an essential element of
due process is t h a t there must be just compensation whenever pri-
1
vate property is taken for public use.
Just compensation means not only the correct determination of
the amount to be paid to the owner of the land but also the payment
of the land within a reasonable time from its taking. Without prompt
payment, compensation cannot be considered "just" for the property
owner is made to suffer the consequence of being immediately de-
prived of his land while being made to wait for a decade or more
before actually receiving the amount necessary to cope with his
2
loss.
3
Nevertheless, as noted in Ansaldo v. Tantuico, Jr., there are
instances where the expropriating agency takes over the property
prior to the expropriation suit, in which case just compensation
shall be determined as of the time of taking, not as of the time of
4
filing of the action of eminent domain.
'Sebastian Cosculluela v. Court of Appeals, 164 SCRA 393 (1988).

2
Consculluela v. Court of Appeals, Supra.
3
1 8 8 SCRA 300, 303-304 (1990).
4
Eslaban, Jr. v. Clarita Onorio, G.R. No. 146062, June 28, 2001, supra; See also
Camarines Norte Electric Cooperative, Inc. v. Court of Appeals, 345 SCRA 85, Nov. 20,
2000.
411
VOL. Ill
As a matter of fair procedure, it is the duty of the Government,

whenever it takes property from private persons against their will
to supply all required documents and facilitate payment of just com-
5
pensation.
b. No Need to File Counterclaim for J u s t Compensa-
tion
In condemnation proceedings, the owner of the property sought
to be condemned may introduce evidence as to the just compensa-
tion including damages to which he is entitled, without the necessity
of filing a counterclaim to that effect. If he does file a counterclaim,
which is unnecessary, it need not be answered by the plaintiff, who
must not be declared in default for his failure to do so. This is true
even where the damages claimed are alleged to have been caused by
the condemnor's use of the property prior to the institution of the
6
condemnation proceedings.
c. But No E x e c u t i o n m a y Issue
As early as 1919, the Court has pointed out that although the
Government, as plaintiff in expropriation proceedings, submits it-
self to the jurisdiction of the Court and thereby waives its immunity
from suit, the judgment that is thus rendered requiring its payment
of the award determined as just compensation for the condemned
property as a condition precedent to the transfer to the title thereto
in its favor, cannot be realized upon execution. The Court added that
it is incumbent upon the legislature to appropriate any additional
amount, over and above the provisional deposit, that may be neces-
sary to pay the award determined in the judgment, since the Gov-
7
ernment cannot keep the land and dishonor the judgment.
d. Presidential d e c r e e s fixing j u s t c o m p e n s a t i o n de-

clared unconstitutional
Presidential Decrees No. 76, as amended by PD. No. 464 and
further amended by PD Nos. 794, 1224, 1259 and 1533 fixing the
5
Sebastian v. Cosculluela, citing Provincial Government of Sorsogon v. Rosa
Vda. de Villaroyo, 153 SCRA 291.
6
Phil. Oil Development Co., Inc. v. Go, 90 Phil. 692, Jan. 23, 1952.
Commissioner of Public Highways v. San Diego, 31 SCRA 616.
412
Sec. 5
just compensation at an amount not more than the declared value of

the property to be expropriated were declared unconstitutional as
"the method of ascertaining just compensation under the aforecited
decrees constitutes impermissible encroachment on judicial preroga-
8
tives."
e. Ascertainment of J u s t Compensation is a Judicial

Function
The determination of just compensation in eminent domain
cases is a judicial function. The executive department or the legisla-
ture may make the initial determination, but when a party claims a
violation of the guarantee in the Bill of Rights that private property
may not be taken for public use without just compensation, no stat-
ute, decree, or executive order can mandate that its own determina-
tion shall prevail over the court's findings. Much less can the courts
be precluded from looking into the justness of the decreed compensa-
9
tion.
The procedure laid down in Sections 5, 6 and 7, Rule 67 of the
10
Rules of Court should be observed.
It was, however, held in Republic v. Intermediate Appellate
11
Court, t h a t the valuation set in said Presidential Decrees may
serve as a guiding principle or one of the factors in determining just
compensation, but may not substitute the court's own judgment as
to what amount should be awarded and how to arrive at such amount.
See also Agrarian Reform Law where DAR determines just compen-
12
sation subject to review by the courts.
f. Meaning of J u s t Compensation
The owner of the land is entitled to just compensation. That is
all the law allows him. "Compensation" means an equivalent for the
"Export Processing Zone Authority v. Dulay, 149 SCRA 305 (1987); Ignacio v.
Guerrero, 150 SCRA 369; Toledo City v. Judge Fernandos, 160 SCRA 285.
9
Export Processing Zone Authority v. Dulay, Supra; Ignacio v. Guerrero, 150
SCRA 369.
10
Toledo City v. Fernandos, Supra; Belen, et al. v. Court of Appeals, 160 SCRA
291 (1988); Republic v. Intermediate Appellate Court, 159 SCRA 265 (1988).
n
Supra.
12
Manaay v. Juico, Supra.
413
VOL. Ill
value of the land. The word "just" is used to intensify the meaning of
the word "compensation." "Just compensation" therefore, means a
13
fair and full equivalent for the loss sustained. Anything beyond
14
that is more and anything short of that is less than compensation.
g. Market value as measure of compensation

The value that ought to be shown in eminent domain proceed-
ings is the market value of the land in the locality. By market value
we mean the price fixed by the buyer and seller in the open market
in the usual and ordinary course of legal trade and competition; the
price and value of the article established or shown by sale, public or
private, in the ordinary way of business; the fair value of the prop-
erty as between one who desires to purchase and one who desires to
sell; the current price; the general or ordinary price for which the
property may be bought in the locality. Undoubtedly deeds convey-
ing property in the same locality are of value in determining the
market value of the land in the vicinity, provided they are shown to
have been made in the ordinary course of legal business and compe-
tition and that the prices stated therein were real and not affected
by unusual conditions. Standing alone, however, they may be very
misleading. One person may desire a piece of land in a given locality
very much more than any other person, he may, for some special
reason desire it so much that he is willing to pay four times its value
in order to secure it. A deed exhibiting such a value would be no
15
criterion of the real value of the property in the community.
Market value of property is the price which it will bring where
it is offered for sale by one who desires, but is not obliged to sell it,
16
and is bought by one who is under no necessity of having it.
The constitutional limitation of "just compensation" is consid-
ered to be the sum equivalent to the market value of the property,
broadly described to be the price fixed by the seller in open market
in the usual and ordinary course of legal action and competition or
the fair value of the property as between one who receives, and one
"Manila Railroad Co. v. Velasquez, 32 Phil. 286.

14
City of Manila v. Estrada, 25 Phil. 208; See also Export Processing Zone Au-
thority v. Dulay, 149 SCRA 305 (1987); See also Manaay v. Juico, Supra.
15
Manila Railroad Co. v. Fabie, 17 Phil. 206.
16
Manila Railroad Co. v. Velasquez, 32 Phil. 286.
414
who desires to sell it fixed at the time of the actual taking by the
government. Thus, if property is taken for public use before compen-
sation is deposited with the court having jurisdiction over the case
the final compensation must include interests on its just value to be
computed from the time the property is taken to the time when
compensation is actually paid or deposited with the court. In fine,
between the taking of the property and the actual payment, legal
interests accrue in order to place the owner in a position as good as
(but not better than) the position he was in before the taking oc-
17
curred.
Interests on Zonal Value

Interests on the zonal value of the property to be computed
from the time petitioner instituted condemnation proceedings and
"took" the property is proper. This allowance of interest on the amount
found to be the value of the property as of the time of the taking
computed, being an effective forbearance at 12% per annum should
help eliminate the issue of the constant fluctuation and inflation of
the value of the currency over time. Article 1250 of the Civil Code,
providing that, in case of extraordinary inflation or deflation, the
value of the currency at the time of the establishment of the obliga-
tion shall be the basis for the payment when no agreement to the
contrary is stipulated, has strict application only to contractual obli-
gations. In other words, a contractual agreement is needed for the
effects of extraordinary inflation to be taken into account to alter the
18
value of the currency.
h. Other factors
1. Where only a part of a certain property is condemned or
expropriated, the owner is not restricted to compensation for the
portion actually taken. In addition to the market value of the por-
tion taken, he is entitled to recover for the consequential damage, if
any, to the remaining part of the property; but from the total com-
"Republic of the Philippines v. The Honorable Court of Appeals and the Heirs
of Luis Santos, G.R. No. 146587, July 2, 2002, supra. .
"Republic of the Philippines v. The Honorable Court of Appeals and the Heirs
of Luis Santos, G.R. No. 146587, July 2, 2002.
415
VOL. Ill
pensation must be deducted the value of the consequential ben-

19
efits.
2. What a witness would ask for his property under certain
circumstances is no criterion of its market value and an objection to
20
that effect should be sustained.
3. In the appraisal of lands to be expropriated, evidence of
prices obtained in sales of other lands is not admissible unless the
lands sold are situated in the immediate vicinity or within the zone
of commercial activity with which the condemned property is identi-
21
fied.
4. The statements made in tax documents by the assessor
may serve as one of the factors to be considered but they cannot
exclude or prevail over a court determination made after expert
commissioners have examined the property and all pertinent cir-
cumstances are taken into account and after the parties have had
22
opportunity to fully plead their cases before an unbiased tribunal.
5. Evidence as to purely speculative damages is not admissi-
ble in determining the amount of compensation to the landholder for
the expropriation of his land; such as the value of a site on which it
was proposed to erect a hotel and other business near a railroad
23
station.
6. In c o n d e m n a t i o n p r o c e e d i n g s t h e law does not
unqualifiedly permit offsetting of incidental benefits against the ac-
tual value of the property. The rule is t h a t incidental benefits may
be set off against incidental damage, but not against the basic value
of the property. Otherwise an owner could be deprived of his prop-
erty without any compensation at all, as where for instance only a
small part of an entire parcel is taken for certain uses, with inciden-
24
tal benefit to the remainder.
"Manila Railroad Co. v. Fabie, 17 Phil. 206; City of Manila v. Corrales, 32 Phil.
85; Manila Railroad Company v. Velasquez, 32 Phil. 287; Municipality of Tarlac v.
Besa, 55 Phil. 423; Republic v. Lara, 96 Phil. 170; Eslaban, Jr. v. Onorio, G.R. No.
146062, June 28, 2001 , s u p r a .
20
Manila Railroad Co. v. Mitchel, 49 Phil. 801.
21
City of Manila v. Estrada, 25 Phil. 208; Republic of the Philippines v. Yaptinchay,
108 Phil. 1046 (1960).
22
Manotok v. NHA, 150 SCRA 90, 93.
"Manila Railroad Co. v. Mitchel, 49 Phil. 801.
24
Zobel v. City of Manila, 47 Phil. 169.
416
7. The de facto devaluation of the peso is not a factor in land

25
valuation for purposes of expropriation.
8. Convertibility of land into a subdivision is not a proper
criterion in determining just compensation.
i. Time as of w h e n market value should be fixed

When plaintiff takes possession before the institution of the
condemnation proceedings, the value should be fixed as of the time
of taking of said possession, not of filing of the complaint, and that
the latter should be the basis for the determination of the value,
when the taking of the property involved coincides with or is subse-
26
quent to, the commencement of the proceedings.
It has therefore been held t h a t the value of the property as it is
when the government took possession of the land in question, not
the increased value resulting from the passage of time which invari-
ably brings unearned increment to landed properties, represent the
27
true value to be paid as just compensation for the property taken.
28
However, in Garcia v. Court of Appeals, because of the very
peculiar circumstances where there was no taking of property for
purposes of eminent domain nor condemnation proceedings insti-
tuted, the basis of determination of just compensation is the time
when the trial court made its order of condemnation.
j. Interest o n a m o u n t a w a r d e d
The owner of the land taken in condemnation proceedings is
entitled to interest upon the amount awarded from the time the
party exercising the right of eminent domain takes possession of the
land and the amounts granted by the court shall cease to earn inter-
est only from the moment they are paid to the owners or deposited in
29
court.
2B
Republic v. Juan, 92 SCRA 26; NHA v. Reyes, 123 SCRA 245; See also Com-
mission of Public Highways v. Burgos, 96 SCRA 831.
26
Republic of the Philippines v. Philippine National Bank, 1 SCRA 957.
27
Prov. Gov't, of Rizal v. Caro de Araullo, 58 Phil. 308.
M
1 0 2 SCRA 597.
29
Republic of Phils, v. Lara, 96 Phil. 170; Republic v. Tayengco, et al., 19 SCRA
898, 1967; Republic v. Court of Appeals, July 2, 2002; Reyes v. NHA, 395 SCRA 494,
January 20, 2003.
417
VOL. Ill
When the court reduces the amount allowed by the commis-

sioners and the owner appeals and secures reversal of the judgment,
he is entitled to interest on the amount awarded to him pending the
30
appeal.
SEC. 6. Proceedings by commissioners. Before enter-

ing upon the performance of their duties, the commissioners
shall take and subscribe an oath that they will faithfully
perform their duties as commissioners, w h i c h oath shall be
filed in court w i t h the other p r o c e e d i n g s in t h e case. Evi-
dence may be introduced by either party before the commis-
sioners w h o are authorized to administer o a t h s on hearings
before them, and the commissioners shall, u n l e s s t h e parties
consent to the contrary, after due n o t i c e to the parties to
attend, v i e w and e x a m i n e t h e property s o u g h t to be expro-
priated and its surroundings, a n d m a y m e a s u r e t h e same,
after w h i c h either party may, by himself or counsel, argue
the case. The commissioners shall a s s e s s t h e consequential
damages to the property not t a k e n a n d d e d u c t from s u c h
consequential d a m a g e s the c o n s e q u e n t i a l benefits to be de-
rived by the o w n e r from t h e public u s e or p u r p o s e of t h e
property taken, the operation of its franchise by t h e corpo-
ration or the carrying on of t h e b u s i n e s s of t h e corporation
or person taking the property. But in no c a s e shall t h e conse-
quential benefits a s s e s s e d e x c e e d the consequential damages
assessed, or the o w n e r be deprived of t h e actual v a l u e of his
property so taken. (6a)
SEC. 7. Report by commissioners and judgment there-
upon. The court m a y order the c o m m i s s i o n e r s to report
w h e n any particular portion of the real e s t a t e shall h a v e
been passed u p o n b y them, a n d m a y r e n d e r j u d g m e n t u p o n
such partial report, a n d direct the c o m m i s s i o n e r s to p r o c e e d
with their work as to s u b s e q u e n t portions of the property
sought to be expropriated, a n d m a y from time to time so deal
with such property. The c o m m i s s i o n e r s shall m a k e a full a n d
accurate report to the court of all their proceedings, and
such proceedings shall not be effectual until the court shall
have accepted their report and r e n d e r e d j u d g m e n t in ac-
'Phil. Railroad Co. v. Solon, 13 Phil. 34.
418
Sees. 6-8
cordance w i t h their recommendations. Except as otherwise

expressly ordered by t h e court, s u c h report shall be filed
w i t h i n sixty (60) days from t h e date the commissioners were
notified of their appointment, w h i c h time m a y be extended
in the discretion of t h e court. U p o n the filing of such report,
t h e clerk of t h e court shall serve copies thereof on all inter-
e s t e d parties, w i t h n o t i c e that t h e y are allowed ten (10) days
w i t h i n w h i c h to file objections to t h e findings of the report,
if t h e y so desire. (7a)
SEC. 8. Action upon commissioners' report. Upon the
expiration of t h e p e r i o d of t e n (10) days referred to in the
p r e c e d i n g section, or e v e n before t h e expiration of such pe-
riod but after all t h e i n t e r e s t e d parties h a v e filed their ob-
j e c t i o n s to t h e report or their s t a t e m e n t of agreement there-
with, t h e court may, after hearing, accept the report and
r e n d e r j u d g m e n t in a c c o r d a n c e t h e r e w i t h ; or, for c a u s e
s h o w n , it m a y r e c o m m i t t h e s a m e to the commissioners for
further report of facts; or it m a y set aside the report and
appoint n e w commissioners; or it m a y accept the report in
part a n d reject it in part; a n d it m a y m a k e s u c h order or
render s u c h j u d g m e n t as shall s e c u r e to the plaintiff the
property essential to t h e e x e r c i s e of his right of expropria-
tion, a n d to the defendant just c o m p e n s a t i o n for the prop-
erty so taken. (8a)
COMMENT:
1. Sources of Rule
Taken from the same sections of the former Rule.
2. Changes in Rules
There are no substantial changes in Sections 6, 7, and 8 except
the terms "condemnation" or "condemned" which were changed with
"expropriation" or "expropriated."
3. Notes and Cases

a. Commissioners' Report not Final
The report of the commissioners on the value of the condemned
land is not final. The judgment of the court is necessary to give effect
419
VOL. Ill
1
to their estimated valuation. Nor is the report of the commissioners
conclusive, under any circumstances, so that the judgment of the
court is a mere detail or formality requisite to the proceedings. The
judgment of the court on the question of the value of the land sought
to be condemned is rendered after a consideration of the evidence
submitted to the commissioners, their report, and the exceptions
thereto submitted upon the hearing of the report. By this judgment
the court may accept the commissioners' report unreservedly; it may
return the report for additional facts; or it may set the report aside
and appoint new commissioners; or it may accept the report in part
or reject it in part, and "make such final order and judgment as shall
secure to the plaintiff the property essential to the exercise of his
rights under the law, and to the defendant just compensation for the
land so taken." Any one of these methods of disposing of the report is
available to and may be adopted by the court according as they are
deemed suited to secure to the plaintiff the necessary property and
2
to the defendant just compensation therefor.
xxx
The court may, in its discretion correct the commissioners' re-
port in any manner deemed suitable to the occasion so that final
3
judgment may be rendered and thus end the litigation.
b. Findings must be b a s e d on e v i d e n c e
If the testimony of value and damages is conflicting, the com-
missioners may resort to their knowledge of the elements which
affect the assessment and which were obtained from a view of the
premises, in order to determine the relative weight of conflicting
testimony, but their award must be supported by the evidence ad-
duced at their hearings and made of record, or it cannot stand; or, in
other words, the view is intended solely for the purpose of better
understanding the evidence submitted. To allow the commissioners
to make up their judgment on their own individual knowledge of
disputed facts material to the case, or upon their private opinions,
would be most dangerous and unjust. It would deprive the losing
party of the right of cross-examination and benefit of all the tests of
Crawford v. Valley, R.R. Co., 25 Grat., 467.

2
Manila Railroad v. Velasquez, 32 Phil. 286.
3
Ibid.
420
credibility which the law affords. It would make each commissioner

the absolute judge of the accuracy and value of his own knowledge or
opinion and compel the Court to affirm the report on the facts when
all of such facts were not before it. The evidence of such knowledge
or of the grounds of such opinion could not be preserved in a bill of
exceptions or questioned upon appeal. It is no hardship upon any of
the parties to require that the award must be based upon the evi-
dence. It is the duty of each party to submit what evidence of value
he has, and if he fails to do so he cannot complain if the appraisement
is kept within the bounds of the evidence presented to the commis-
4
sioners.
c. N e e d to v i e w p r e m i s e s
The view of the premises enables commissioners to better un-
derstanding the evidence submitted to them. The declarations of
witnesses as to the value of the land, as to its condition, or the
conditions of improvements which may be located upon it, and com-
parisons made between the condemned land and other land in the
vicinity may all be better understood by the commissioners if they
5
have viewed the premises.
d. Weight of Commissioners' Report

Being disinterested landowners, selected for their ability to
arrive at a judicious decision in the assessment of damages, and
being allowed to view the property, their report is entitled to greater
6
weight than that of an ordinary trier of facts.
SEC. 9. Uncertain ownership; conflicting claims. If

the o w n e r s h i p of the property taken is uncertain, or there
are conflicting claims to any part thereof, the court may
order any s u m or s u m s a w a r d e d as compensation for the
property to be paid to the court for the benefit of the person
adjudged in the same proceeding to be entitled thereto. But
the judgment shall require the payment of the sum or sums
awarded to either the defendant or the court before the plain-
ed.
5
Manila Railroad v. Velasquez, 32 Phil. 286.
6
Ibid.
421
VOL. Ill
tiff can enter upon the property, or retain it for the public
use or purpose if entry has already b e e n made. (9a)
COMMENT:
1. Source of Rule
SEC. 9. Uncertain ownership. Conflicting claims. If the own-
ership of the property taken is uncertain, or there are conflicting
claims to any part thereof, the court may order any sum or sums
awarded as compensation for the property to be paid to the clerk of
the court for the benefit of the persons adjudged in the same proceed-
ing to be entitled thereto. But the judgment shall require the payment
of the sum or sums awarded to either the defendant or the clerk
before the plaintiff can enter upon the property, or retain it for the
public use or purpose if entry has already been made.
2. Change in Rule
Payment to the clerk was deleted.
In a condemnation proceeding the trial court ordered that a
certain sum of money be paid by way of part indemnity to some of
the owners of the land. Before the money was paid a person holding
a judgment against one of the land owners filed a motion in the
condemnation proceeding praying that the order for the payment of
the money be revoked and that the treasurer be ordered to retain
the money. Upon hearing, the motion was granted and provincial
treasurer was ordered to retain the money for the purpose of afford-
ing the parties an opportunity to settle the controversy by an action
of interpleader. Held: In ordering the retention of the money pend-
ing an action of interpleader, the court acted within its jurisdiction
1
and a writ of certiorari to the court would not issue.
SEC. 10. Rights of plaintiff after judgment and payment.

Upon payment by the plaintiff to t h e defendant of t h e
C a l v o v. Zandueta and Ordonez, 49 Phil. 605.
422
c o m p e n s a t i o n fixed by t h e j u d g m e n t , w i t h legal interest

thereon from t h e t a k i n g of the p o s s e s s i o n of the property, or
after t e n d e r to h i m of t h e a m o u n t so fixed and payment of
the costs, t h e plaintiff shall h a v e t h e right to enter upon the
property expropriated a n d to appropriate it for the public
use or p u r p o s e defined in t h e judgment, or to retain it should
he h a v e t a k e n i m m e d i a t e p o s s e s s i o n thereof under the pro-
visions of s e c t i o n 2 hereof. If t h e defendant and his attorney
absent t h e m s e l v e s from t h e court, or decline to receive the
a m o u n t tendered, t h e s a m e shall be ordered to be deposited
in court a n d s u c h deposit h a v e t h e s a m e effect as actual
p a y m e n t thereof to t h e defendant or t h e person ultimately
adjudged e n t i t l e d thereto. (10a)
COMMENT:
1. Source of Rule
SEC. 10. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of compensation as
fixed by the judgment, or after tender to him of the amount so fixed
and payment of the costs, the plaintiff shall have the right to enter
upon the property condemned and to appropriate it to the public use
or purpose defined in the judgment, or to retain it should he have
taken immediate possession thereof under the provisions of Section 2
hereof. If the defendant and his attorney absent themselves from the
court, or decline to receive the amount tendered, or if the court shall
have ordered the compensation paid to the clerk, the payment may be
made with like effect to the clerk of the court for the defendant or the
person ultimately adjudged entitled thereto, and the clerk shall re-
ceive such payment and be responsible on his bond therefor.
2. Changes in Rule
The Rule that "if the defendant and his attorney absent them-
selves from the court, or decline to receive the amount tendered, or if
the court shall have ordered the compensation paid to the clerk, the
payment may be made with like effect to the clerk of the court" was
replaced with "the same shall be ordered to be deposited in court."
423
VOL. Ill
The rulings on the payment of legal interest on the compensa-

tion fixed by the court from the taking of possession of the property
1
are now incorporated in this section.
3. Notes and Cases
a. Interest on amount awarded
The owner of the land taken in condemnation proceedings is
entitled to interest upon the amount awarded from the time the
party exercising the right of eminent domain takes possession of the
land and the amounts granted by the court shall cease to earn inter-
est only from the moment they are paid to the owners or deposited in
2
court.
b. When the court reduces the amount allowed by the com-
missioners and the owner appeals and secures reversal of the judg-
ment, he is entitled to interest on the amount awarded to him pend-
3
ing the appeal.
c. Effect of j u d g m e n t as to p e r s o n n o t a party
A person who is not a party to a condemnation proceeding is
not bound by a judgment therein ordering the payment of indemnity
4
for the taking of the land in question to some other person.
d. Title; When P a s s i n g
In condemnation proceedings the title to the land does not pass
5
to the plaintiff until the indemnity is paid.
SEC. 11. Entry not delayed by appeal; Effect of reversal.

The right of the plaintiff to e n t e r u p o n t h e property of t h e
defendant and appropriate t h e s a m e for public u s e or pur-
pose shall not be delayed by an appeal from t h e judgment.
But if the appellate court d e t e r m i n e s that plaintiff h a s no
x
Benguet Consolidated, Inc. v. Republic, 143 SCRA 466.
'Republic of Phils, v. Lara, 96 Phil. 170; Republic v. Tayengco, et al., 19 SCRA
898(1967).
3
Phil. Railroad Co. v. Solon, 13 Phil. 34.
"Calvo v. Zandueta, 49 Phil. 605.
*Ibid.; Jacinto v. Director of Lands, 49 Phil. 853.
424
right of expropriation, j u d g m e n t shall be rendered ordering

the Regional Trial Court to forthwith enforce the restoration
to the defendant of t h e p o s s e s s i o n of the property, and to
determine the d a m a g e s w h i c h t h e defendant sustained and
m a y recover by r e a s o n of t h e p o s s e s s i o n taken by the plain-
tiff. (11a)
COMMENT:
1. Source of Rule
SEC. 11. Entry not delayed by appeal. Effect of reversal. The
right of the plaintiff to enter upon the property of the defendant and
appropriate the same to public use or purpose shall not be delayed by
an appeal from the judgment. But if the appellate court deter mines
that plaintiff has no right of condemnation, the case shall be re-
manded to the Court of First Instance with mandate that the defend-
ant be replaced in possession of the property and that he recover the
damages sustained by reason of the possession taken by the plaintiff.
2. Changes in Rule
Instead of a mandate t h a t the defendant be replaced in posses-
sion of the property and that he recover the damages sustained by
reason of the possession taken by the plaintiff, the mandate should
be to "enforce the restoration to the defendant of the possession of the
property, and to determine the damages which the defendant sus-
tained and may recover by reason of the possession taken by the
plaintiff."
The judgment of the appellate court restoring possession to the
defendant may be rendered in the appeal from the order of expro-
priation. (Feria)
3. Notes and Cases

The fact that the plaintiff in condemnation proceedings may,
immediately on the filing of judgment, enter into possession of the
premises and begin improvements thereon is not sufficient ground
upon which to assert that the judgment in such action becomes
instantly final and absolute and not subject to modification or vaca-
tion. The fact that the statute provides for an appeal from judg-
425
VOL. Ill
merits in actions for the condemnation of real estate demonstrates

1
that the judgment does not become absolutely final on its entry.
4. Rules on Return of Land exprpropriated.
a. When private land is expropriated for a particular purpose
with the condition that when the purpose is ended or abandoned the
former owner reacquires the property so expropriated.
b. When the land has been acquired for public use in fee
simple, unconditionally, either by the exercise of the right of eminent
domain or by purchase, the former owner retains no right in the
land, and the public use may be abandoned, or the land may be
devoted to a different use, without any impairment of the estate or
2
title acquired, or any reversion to the former owner.
The Court reiterated the first principle in Fery v. Municipality
3
ofCabanatuan for the return of the land, in Heirs ofTimoteo Moreno
4
v. Mactan-Cebu International Airport Authority, it appearing that
there is preponderant proof of the right to repurchase in favor of
petitioners.
5. Character of Property Taken for Public U s e U p o n

Expropriation Not Altered by Change in U s e
The expropriated property Jias been shown to be for the
continued utilization by the PIA, a significant portion thereof being
ceded for the expansion of the facilities of the Bulacan State
University and for the propagation of the Philippine Carabao,
themselves in line with the r e q u i r e m e n t s of public purpose.
Respondents question the public nature of the utilization by petitioner
of the condemned property, pointing out that its present use differs
from the purpose originally contemplated in the 1969 expropriation
proceedings. The argument is of no moment. The property has
assumed a public character upon its expropriation. Surely, petitioner,
as the condemnor and as the owner of the property, is well within its
x
De Fiesta v. Llorente and Manila Railroad Co., 25 Phil. 554.
2
Fery v. Municipality of Cabanatuan, 42 Phil. 28; See also MCAA v. C.A., 345
SCRA 126 (2000); ATO v. Gopuco, Jr., G.R. No. 158563, June 30, 2005.
3
Fery, Supra.; See also Reyes v. NHA, G.R. No. 147511, Jan. 2 0 , 2 0 0 3 , 3 9 5 SCRA
494.
4
G.R. No. 156273, October 15, 2003, Heirs ofTimoteo Moreno and Maria Rotea
v. Mactan-Cebu International Airport Authority, 413 SCRA 502.
426
rights to alter and decide the use of that property, the only limitation
being that it be for public use, which, decidedly, it is.
In insisting on the return of the expropriated property, respond-
ents would exhort on the pronouncement in Provincial Government
ofSorsogon v. Vda. de Villaroya, where the unpaid landowners were
allowed the alternative remedy of recovery of the property there in
question. It might be borne in mind that the case involved the mu-
nicipal government of Sorsogon, to which the power of eminent do-
main is not inherent, but merely delegated and of limited applica-
tion. The grant of the power of eminent domain to local governments
under Republic Act No. 7160 [cannot be understood as being the
pervasive and all-encompassing power vested in the legislative branch
of government. For local governments to be able to wield the power,
it must, by enabling law, be delegated to it by the national legisla-
ture, but even then, this delegated power of eminent domain is not,
strictly speaking, a power of eminent, but only of inferior, domain or
only as broad or confined as the real authority would want it to be.
6. N o n - P a y m e n t Not a Ground To Recover Possession

Thus, in Valdehueza v. Republic, where the private landowners
had remained unpaid ten years after the termination of the expro-
priation proceedings, this Court ruled
"The points in dispute are whether such payment can still
be made and, if so, in what amount. Said lots have been the
subject of expropriation proceedings. By final and executory
judgment in said proceedings, they were condemned for public
use, as part of an airport, and ordered sold to the government.
It follows that both by virtue of the judgment, long final, in the
expropriation suit, as well as the annotations upon their title of
certificates, plaintiffs are not entitled to recover possession of
their expropriated lots which are still devoted to the public
use for which they were expropriated but only to demand
the fair market value of the same.
"Said relief may be granted under plaintiffs' prayer for:
'such other remedies, which may be deemed just and equitable
under the premises'."
The Court proceeded to reiterate its pronouncement in Alfonso
v. Pasay City where the recovery of possession of property taken for
public use prayed for by the unpaid landowner was denied even
427
VOL. Ill
while no requisite expropriation proceedings were first instituted.

The landowner was merely given the relief of recovering compensa-
tion for his property computed at its market value at the time it was
taken and appropriated by the State.
Where the judgment rendered by the court on the expropria-
tion proceedings provides not only for the payment of just compensa-
tion to respondents but likewise adjudges the property condemned
in favor of petitioner over which parties, as well as their privies, are
bound, and, pursuant thereto petitioner occupied, utilized and, for
all intents and purposes, exercised dominion over the property pur-
suant to the judgment vested to it as the condemnee amounted to at
least a partial compliance or satisfaction of the judgment, thereby
pre-empting any claim of bar by prescription on grounds of non-
execution. In arguing for the return of their property on the basis of
non-payment, respondents ignore the fact t h a t the right of the
expropriatory authority is far from that of an unpaid seller in ordi-
nary sales, to which the remedy of rescission might perhaps apply
An in rem proceeding, condemnation acts upon the property. After
condemnation, the paramount title is in the public under a new and
independent title; thus, by giving notice to all claimants to a dis-
puted title, condemnation proceedings provide a judicial process for
securing better title against all the world than may be obtained by
5
voluntary conveyance.
SEC. 12. Costs, by whom paid. The fees of t h e com-

missioners shall be t a x e d as a part of t h e costs of t h e pro-
ceedings. All costs, e x c e p t t h o s e of rival claimants litigating
their claims, shall be paid by t h e plaintiff, u n l e s s an appeal is
taken by the o w n e r of t h e property a n d t h e j u d g m e n t is af-
firmed, in w h i c h e v e n t t h e costs of t h e appeal shall be paid
by the owner. (12a)
COMMENT:
1. Source of Rule
5
Luis Santos, G.R. No. 146587, July 2, 2002, supra; reiterated in Reyes v. NHA, supra.
428
Rule 67 EXPROPRIATION Sees. 13-14
SEC. 12. Costs, by whom paid. The fees of the commissioners

shall be taxed as a part of the costs of the proceedings. All costs,
except those of rival claimants litigating their claims, shall be paid
by the plaintiff, unless an appeal is taken by the owner and the
judgment is affirmed, in which event the costs of the appeal shall be
paid by the owner.
2. No Substantial Change
SEC. 13. Recording judgment, and its effect. The judg-

m e n t e n t e r e d in expropriation p r o c e e d i n g s shall state defi-
nitely, by an a d e q u a t e description, t h e particular property
or interest t h e r e i n expropriated, a n d t h e nature of the pub-
lic u s e or p u r p o s e for w h i c h it is expropriated. When real
estate is expropriated, a certified copy of s u c h judgment shall
be recorded in t h e registry of d e e d s of t h e place in w h i c h the
property is situated, a n d its effect shall be to vest in the
plaintiff t h e title to t h e real estate so described for such
public u s e or purpose. (13a)
COMMENT:
1. Source of Rule
SEC. 13. Recording judgment, and its effect. The judgment
entered in condemnation proceedings shall state definitely, by an
adequate description, the particular property or interest therein con-
demned, and the nature of the public use or purpose for which it is
condemned. When real estate is condemned, a certified copy of such
judgment shall be recorded in the office of the registrar of deeds for
the province in which the property is situated, and its effect shall be
to vest title in the real estate so described in the plaintiff for such
public use or purpose.
SEC. 14. Power of guardian in such proceedings. The

guardian or guardian ad litem of a minor or of a person
judicially declared to be incompetent may, with the approval
of the court first had, do and perform on behalf of his ward
429
VOL. Ill
any act, matter, or thing respecting the expropriation for

public use or purpose of property belonging to s u c h minor or
person judicially declared to be incompetent, w h i c h such
minor or person judicially declared to be incompetent could
do in such proceedings if he w e r e of age or competent. (14a)
COMMENT:
1. Source of Rule
SEC. 14. Power of guardian in such proceedings. The guard-
ian or guardian ad litem of a minor or person of unsound mind, or of
a person declared judicially to be incompetent may, with the ap-
proval of the court first had, do and perform on behalf of his ward
any act, matter, or thing respecting the condemnation for public use
or purpose of property belonging to such minor or person of unsound
mind, or person declared judicially to be incompetent, which such
minor or person of unsound mind, or person declared judicially to be
incompetent could do in such proceedings if he were of age or of
sound mind or competent.
2. Change in Rule
"or person of unsound mind" was deleted.
When private land is expropriated for a particular public use,
the same does not return to its former owner upon an abandonment
of the particular use for which the land was expropriated. When the
land has been acquired for public use in fee simple, unconditionally,
either by the exercise of the right of eminent domain or by purchase,
the former owner retains no right in the land, and the public use
may be abandoned, or the land may be devoted to a different use,
without any impairment of the estate or title acquired, or any rever-
1
sion to the former owner.
^ e r y v. Municipality of Cabanatuan, 42 Phil. 28.
430
RULE 68
FORECLOSURE OF REAL ESTATE
MORTGAGE
SECTION 1. Complaint in action for foreclosure. In an

action for the foreclosure of a mortgage or other encum-
brance u p o n real estate, t h e complaint shall set forth the
date a n d d u e e x e c u t i o n of t h e mortgage; its assignments, if
any; the n a m e s and r e s i d e n c e s of the mortgagor and the mort-
gagee; a description of t h e m o r t g a g e d property; a statement
of t h e date of t h e n o t e or other d o c u m e n t a r y e v i d e n c e of the
obligation s e c u r e d by t h e mortgage, t h e a m o u n t claimed to
be u n p a i d thereon; a n d t h e n a m e s a n d r e s i d e n c e s of all per-
s o n s h a v i n g or c l a i m i n g an interest in t h e property subordi-
nate in right to that of t h e holder of the mortgage, all of
w h o m shall be m a d e defendants in t h e action, (la)
COMMENT:
1. Source of Rule
a. Prohibition Against Pactum Commissorium
The creditor cannot appropriate the things given by way of
pledge or mortgage, or dispose of them. Any stipulation to the con-
1
trary is null and void. Foreclosure of mortgage is the remedy avail-
able to the mortgagee by which he subjects the mortgaged property
to the stipulation of the obligation for which the mortgage was given.
Article 2088, Civil Code.
431
VOL. Ill
(41 C.R. 830). The proceedings may either be judicial or extrajudi-

cial.
b. Choice of Remedies by Mortgagee
The remedies available the a creditor secured by a mortgage
are:
2
1. Foreclosure of the mortgage.
3
2. Simple action for collection. He may also obtain attach-
ment upon proper showing by affidavit that the value of the mort-
gaged property is insufficient to cover the debt and that the proper-
ties of the defendant are in danger of being lost or disposed of with
4
intent to defraud creditors.
3. Receivership under Sec. 1(c), Rule 59 of the Rules of Court,
whenever it appears in the action for foreclosure t h a t the property is
in danger of being wasted or materially injured, and its value is
insufficient or the parties have so stipulated in the contract.
c. Foreclosure of Equitable Mortgage

In a pacto de retro sale, considered as an equitable mortgage,
the creditor may avail himself of foreclosure proceedings to collect
5
his credit.
d. Mortgage on decedent's e s t a t e ' C h o i c e of Reme-

dies
A creditor holding a claim against the estate secured by mort-
gage or other collateral security may:
1. Abandon his security and prosecute his claim in the pro-
bate court and share in the general distribution of the assets of the
estate; or
2. Foreclose his mortgage and rely on his security by action
in court, making the executor or administrator a party defendant
J u d i c i a l under Rule 68 or extrajudicial under Act No. 3135.

3
Bachrach Motor Co. v. Carangal, 68 Phil. 287.
4
D e los Reyes v. CFI of Batangas, 55 Phil. 408.
5
Zubiri v. Quijano, 74 Phil. 47; Montevirgen v. Court of Appeals, 112 SCRA 641;
Spouses Resales v. Spouses Suba, 408 SCRA 664, August 12, 2003.
432
Rule 68 FORECLOSURE OF REAL ESTATE MORTGAGE Sec. 1
and if there is a judgment for deficiency after the sale, file a claim in
the estate for such deficiency under Section 5, Rule 86; or
3. Rely upon his mortgage alone and foreclose the same at
6
any time within the statute of limitations;
7
The choice of one remedy is an abandonment of the other.
e. The mortgage creditor in foreclosure proceedings has the
same standing and enjoys the same right as the mortgage creditor in
8
administration proceedings.
f. After a declaration of insolvency and the insolvency court
has acquired control of his estate there can be no more foreclosure
9
without the consent of the insolvency court.
g. Where a Torrens Title was issued as a result of regular
land registration proceedings and was later given as security to a
bank loan, the subsequent declaration of said torrens title as null
and void, does not authorize the cancellation of the mortgage right
10
of the bank which acted in good faith.
h. Where the secured debt is payable in installments, de-
fault in the payment of any installment gives the mortgagee a right
to foreclose as to such installments without waiting for the maturity
11
of the whole debt.
i. Parties in Foreclosure suit

The following must be joined as defendants:
1. The persons obligated to pay the mortgage debt.
2. The persons who own, occupy or control the mortgaged
12
premises or any part thereof.
13
3. The transferee or grantee of the property.
6
Section 7, Rule 86.
7
Ingersoll v. Concepcion, 44 Phil. 243.
C h a r t e r e d Bank v. Imperial, 48 Phil. 931.
9
Cu Unjieng Hijos v. Mitchel, 58 Phil. 476.
10
Penullar v. PNB, 120 SCRA 171.
u
S a n g a v. Zaballero and Santos, 59 Phil. 101.
12
Soriano v. Enriquez, 24 Phil. 584.
"Chapman v. Ongto, 70 Phil. 305; De Villa v. Fabricante, 105 Phil. 672, Supi
433
VOL. Ill
4. The second mortgagee or junior encumbrancer or any per-

sons claiming a right or interest in the property subordinate to the
14
mortgage sought to be foreclosed.
5. The mortgagor even if not the owner of the mortgaged
15
property should be included to satisfy the deficiency judgment.
j. Effect of failure to implead s e c o n d mortgagee

If the second mortgagee is not impleaded the foreclosure is
ineffective against such subordinate lien holder with the result that
there remains in time an unforeclosed equity of redemption.
The remedy is an independent foreclosure in a proceeding in
which the Court should require the second mortgagee to redeem the
first mortgage within three months under penalty of being debarred
16
from the exercise of his right to redeem.
k. Adverse claimants asserting title antagonistic to the mort-
gagor are neither necessary nor proper parties to foreclosure suit
unless they are asserting rights or interest acquired by them prior to
the registration of the mortgage sought to be foreclosed in which
case they may be considered necessary but not indispensable par-
17
ties.
A first mortagee is not a necessary party in the foreclosure of a
second mortgage but he may be joined or may intervene when the
18
mortgage debt is already due.
1. Applicability of Rule to Chattel Mortgage

Sec. 8. of the former rule on Judicial foreclosure of chattel
mortgage which provides that The provisions of this ruie shall be
applicable to the judicial foreclosure of chattel mortgages except
that the sale of the property mortgaged shall be held as provided by
the Chattel Mortgage Law and without prejudice to the provisions of
Articles 1484, 1485 and 1486 of the Civil Code, have been deleted
from the present Rule.
14
S o m e s v. Government of Phil. Islands, 62 Phil. 432.
15
Soriano v. Enriquez, Supra.
l6
S u n Life Assurance Co. of Canada v. Gonzales Diez, 52 Phil. 272; De Castro, et
al. v. Intermediate Appellate Court, 165 SCRA 654 (1988).
17
B a n k of P.I. v. Noblejas, 105 Phil. 418.
18
D e La Riva v. Reynoso, 61 Phil. 734.
434
Justice Feria is, however of the view that while this rule is now
limited to a judicial foreclosure of real estate mortgage. It may
however, be applied to a judicial foreclosure of chattel mortgage'
subject to the provisions of the Chattel Mortgage Law (Act 1508) and
19
Articles 1484, 1485 and 1486 of the Civil Code.
m. The Recto Law

Art. 1484. In a contract of sale of personal property the price of
which is payable in installments, the vendor may exercise any of the
following remedies:
1. Exact fulfillment of the obligation, should the vendee fail
to pay;
2. Cancel the sale, should the vendee's failure to pay cover
two or more installments;
3. Foreclose the chattel mortgage on the thing sold, if one has
been constituted, should the vendee's failure to pay cover two or more
installments. In this case, he shall have no further action against the
purchaser to recover any unpaid balance of the price. Any agreement
to the contrary shall be void.
Art. 1485. The preceding article shall be applied to contracts
purporting to be leases of personal property with option to buy, when
the lessor has deprived the lessee of the possession or enjoyment of the
thing.
Art. 1486. In the cases referred to in the two preceding articles,
a stipulation that the installments or rents paid shall not be" returned
to the vendee or lessee shall be valid insofar as the same may not be
unconscionable under the circumstances.
n. The rule does not preclude extrajudicial foreclosure under
20
Sec. 14, Act 1508.
o. If the property is in the mortgagee's possession, the rem-
21
edy is replevin.
l9
See Seno v. Pestolante, 103 Phil. 414; Good Development Corp. v. Tutaan,
SCRA 189.
^Luna v. Encarnacion, 91 Phil. 531.
"Bachrach Motor Co. v. Summers, 42 Phil. 3.
435
VOL. Ill
p. The sale of personal property cannot be done under Act

22
3135 in the absence of stipulation.
q. Possession of Chattel should be by replevin
The purchaser cannot take possession of the property by force
either directly or through the sheriff. And the reason for this is "that
the creditor's right of possession is conditioned upon the fact of
default, and the existence of this fact may naturally be the subject of
23
controversy.
The creditor cannot merely file a petition for a writ of posses-
sion. The remedy is to file an ordinary action for recovery of posses-
sion in order that the debtor may be given an opportunity to be
heard not only regarding possession but also regarding the obliga-
24
tion covered by the mortgage.
SEC. 2. Judgment on foreclosure for payment or sale.

If upon the trial in s u c h action the court shall find t h e facts
set forth in the complaint to be true, it shall ascertain the
amount due to the plaintiff u p o n t h e m o r t g a g e debt or obli-
gation, including interest a n d other c h a r g e s as a p p r o v e d by
the court, and costs, a n d shall r e n d e r j u d g m e n t for t h e s u m
so found due and order that t h e s a m e be paid to t h e court or
to the judgment obligee w i t h i n a period of not less t h a n ninety
(90) days nor more t h a n o n e h u n d r e d t w e n t y (120) days from
the entry of judgment, a n d that in default of s u c h p a y m e n t
the property shall be sold at public a u c t i o n to satisfy the
judgment. (2a)
COMMENT:
1. Source of Rule
SEC. 2. Judgment on foreclosure for payment or sale. If upon
the trial in such action the court shall find the facts set forth in the
22
L u n a v. Judge Encarnacion, Supra.
23
Bachrach Motor Co. v. Summers, 42 Phil. 3, 6; See also Filinvest Credit Corpo-
ration v. Court of Appeals, 248 SCRA 549.
M
L u n a v. Encarnacion, et al., Supra.
436
Rule 68 FORECLOSURE OF REAL ESTATE MORTGAGE
complaint to be true, it shall ascertain the amount due to the plaintiff

upon the mortgage debt or obligation, including interest and costs
and shall render judgment for the sum so found due and order that
the same be paid into court within a period of not less than ninety
(90) days from the date of the service of such order, and that in
default of such payment the property be sold to realize the mortgage
debt and costs.
2. Changes in Rule
Under the present Rule if upon the trial in such action the
court shall find the facts set forth in the complaint to be true:
(a) it shall ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as
approved by the court, and costs, and
(b) shall render judgment for the sum so found due and order
that the same be paid to the court or to the judgment obligee within a
period of not less than ninety (90) days nor more than one hundred
twenty (120) days from the entry of judgment,
(c) and that in default of such payment the property shall be
sold at public auction to satisfy the judgment.
Payment under the present rule shall be "within a period of not
less than ninety (90) days nor more than one hundred twenty (120)
days from the entry of judgment, and that in default of such payment
the property shall be sold at public auction to satisfy the judgment."
This period is counted from the entry of the judgment. The
original rule, which made the period start from the service of the
order, was clarified because the judgment of foreclosure is appeal-
able and it is only when such judgment has become final and execu-
tory and is entered that the period of payment starts. (Feria)
SEC. 3. Sale of mortgaged property; effect. - When the

defendant, after b e i n g directed to do so as provided in the
next preceding section, fails to pay the amount of the judg-
ment within the period specified therein, the court, upon
motion, shall order the property to be sold in the manner
and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution. Such sale
shall not affect the rights of persons holding prior encum-
437
VOL. Ill
brances upon the property or a part thereof, and w h e n con-

firmed by an order of the court, also u p o n motion, it shall
operate to divest the rights in the property of all the parties
to the action and to vest their rights in the purchaser, sub-
ject to such rights of redemption as m a y be allowed by law.
Upon the finality of the order of confirmation or u p o n
the expiration of the period of r e d e m p t i o n w h e n allowed by
law, the purchaser at the auction sale or last redemptioner, if
any, shall be entitled to the possession of t h e property unless
a third party is actually holding t h e s a m e adversely to t h e
judgment obligor. The said purchaser or last redemptioner
may secure a writ of possession, u p o n motion, from t h e court
which ordered the foreclosure. (3a)
COMMENT:
1. Source of Rule
SEC. 3. Sale of mortgaged property; effect. When the defend-
ant, after being directed to do so as provided in the last preceding
section, fails to pay the principal, interest, and costs at the time
directed in the order, the court shall order the property to be sold in
the manner and under the regulations that govern sales of real estate
under execution. Such sale shall not affect the rights of persons hold-
ing prior encumbrances upon the property or a part thereof, and
when confirmed by an order of the court, it shall operate to divest the
rights of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by
law.
2. Changes in Rule
Under the present Rule, "When the defendant, after being di-
rected to do so as provided in the next preceding section, fails to pay
the amount of the judgment within the period specified therein, the
court, upon motion, shall order the property to be sold in the manner
and under the provisions of Rule 39 and other regulations governing
sales of real estate under execution. Confirmation shall also be upon
motion.
438
The second paragraph is entirely new but is in accord with

decisions of the Supreme Court. Before the confirmation of the sale
the defendants may exercise the so-called: "Equity of Redemption."
a. Equity of r e d e m p t i o n
What Sections 2 and 3 Rule 68 provide for is the mortgagor's
equity (not right) of redemption which may be exercised by him even
beyond the period to pay the judgment obligation" and even after the
foreclosure sale itself, provided it be before the order of the confir-
mation of the sale. After such order of confirmation no redemption
can be effected any longer.
It is the same equity of redemption that is conferred by law on
the mortgagor's successors-in-interest, or third person acquiring
rights over the mortgaged property subsequent, and therefore sub-
ordinate, to the mortgagee's lien (e.g., by second mortgage or subse-
1
quent attachment or judgment.
The period given in the rule is not a procedural requirement
merely; it is a substantive right granted to the mortgage debtor as a
last opportunity to pay the debt and save his mortgaged property
2
from final disposition at the foreclosure sale.
b. The right of r e d e m p t i o n a n d equity of redemption

distinguished
The equity of redemption is different from and should not be
confused with the right of redemption.
1. Equity of redemption is simply the right of the defend-
ant mortgagor to extinguish the mortgage and retain ownership of
the property by paying the secured debt within the 90 to 120-days
period after the entry of judgment, in accordance with Rule 68, or
3
even after the foreclosure sale but prior to its confirmation.
2. The right of redemption in relation to a mortgage is the
right granted to the debtor, his successor-in-interest or any judicial
^ i m p i n , et al. v. Intermediate Appellate Court, G.R. No. 70987, 29 Sept. 1988,

166 SCRA 88.
2
D e Leon v. Ibanez, et al., 95 Phil. 119.
3
Limpin, et al. v. LAC, Supra.
439
VOL. Ill
creditor or judgment creditor of said debtor or any person having a

lien on the property subsequent to the mortgage or deed of trust
under which the property is sold to redeem the property within a
period of one (1) year from the registration of the Sheriff's certificate
of foreclosure sale, and such redemption is governed by Sections 29,
4
30 and 31, Rule 39 of the Rules of Court.
c. The matter of redemption is wholly statutory. Only such
persons can redeem from an execution sale as are authorized by the
5
statute, which governs the sale of mortgage property at public auc-
6
tion by reason of an extrajudicial foreclosure of mortgage.
d. No right of r e d e m p t i o n in judicial foreclosure; ex-

ception
No right of redemption exists in case of judicial foreclosure of a
mortgage if the mortgagee is not the Philippine National Bank or a
bank or banking institution. In such a case, the foreclosure sale
"when confirmed by an order of the court, shall operate to divest the
rights of all parties to the action and to vest their rights in the
7
purchaser."
e. Right of r e d e m p t i o n u n d e r General B a n k i n g Act

There is no right of redemption from a judicial foreclosure sale
after the confirmation of the sale except those granted by banks or
banking institutions as provided by the General Banking Act. Since
the GSIS is not a bank or banking institution, its mortgage is cov-
ered by the general rule that there is no right of redemption after
the judicial foreclosure sale has been confirmed. An order extending
8
the period of redemption is null and void.
"Limpin, et al. v. Intermediate Appellate Court, Supra; De Castro, et al. v. In-

termediate Appellate Court, et al., 165 SCRA654, September 2 6 , 1 9 8 8 ; See also Toprate
International Sevices, Inc. v. Intermediate Appellate Court, 142 SCRA 467; See also
DBP v. West Negros College, Inc., 429 SCRA 50, May 2 1 , 2004.
5
Act No. 3135 as amended by Act 4118.
6
D e Castro, et al. v. Intermediate Appellate Court, Supra.
7
Limpin, et al. v. Intermediate Appellate Court, Supra; See also Spouse Rosales
v. Spouses Suba, G.R. No. 137792, August 12, 2003, 408 SCRA 664.
"Government Service Insurance System v. The Court of First Instance of Iloilo,
185 SCRA 19, July 5, 1989.
440
Sec. 3
4. Effect of Failure to Interpose Right to Redeem as

Compulsory Counterclaim
The right to redeem must be seasonably invoked as a counter-
claim At the earliest opportunity when it submitted its answer to
the complaint for judicial foreclosure, petitioner should have alleged
that it was entitled to the beneficial provisions of Section 78 of R.A.
No. 337. It bears stressing that the applicability of Section 78 of R.A.
No. 337 hinges on the factual question of whether or not private
respondent's predecessor in interest was a credit institution. As was
held in Limpin, a judicial foreclosure sale, "when confirmed by an
order of the court, x x x shall operate to divest the rights of all the
parties to the action and to vest their rights in the purchaser, subject
9
to such rights of redemption as may be allowed by law, " which confer
on the mortgagor, his successors in interest or any judgment credi-
tor of the mortgagor, the right to redeem the property sold on fore-
closure after confirmation by the court of the judicial foreclosure
sale. Thus, the claim t h a t petitioner is entitled to the beneficial
provisions of Section 78 of R.A. No. 337 since private respondent's
predecessor-in-interest is a credit institution is in the nature of a
compulsory counterclaim which should have been averred in peti-
10
tioner's answer to the compliant for judicial foreclosure.
5. Amount of R e d e m p t i o n in Extrajudicial Foreclos-

ure
The mount of redemption to be paid by mortgagor to redeem a
real property mortgaged to and foreclosed extrajudicially by the DBP
is not the purchase price at the time of the sale but the entire
amount of the indebtedness he owed the latter on the date of the sale
with interest on the total indebtedness at the rate agreed upon in its
11
obligation.
12
Fees are to be reckoned from filing of application or after sale;
9
Limpin v. IAC, supra, p. 94.
10
Huerta Alba Resort, Inc. v. Court of Appeals, Syndicated Management Group,
Inc., 339 SCRA 534, September 1, 2000; Cited in Spouses Rosales v. Spouses Suba,
Supra, holding that there is no right of redemption exists.
"Development Bank of the Philippines v. West Negros College, Inc., G.R. No.
152359,.Oct. 28, 2002, 391 SCRA 331.
12
U P C B v. Yap, 382 SCRA 772, May 29, 2002.
441
VOL. Ill
The right of legal redemption must be exercised within speci-

fied time limits. There must be a tender of the full payment in good
faith of: (a) the purchase price; (b) interest of 1% per month on the
purchase price from date of registration of the sale; (c) amount of
taxes and assessments paid by purchaser; and (d) interest of 1% per
13
month on the assessments.
Note:
Section 47 of the General Banking Act reduced the period of
redemption of extrajudicially foreclosed properties of juridical per-
sons from one year to "until but not after, the registration of the
foreclosure sale... which in no case shall be more than three (3)
months after foreclosure, whichever is earlier.
Redemption g i v e s rise to estoppel

Redemption is an implied admission of the regularity of the
sale and estops the petitioner from later impugning its validity on
that ground. Redemption is inconsistent with the claim of invalidity
of the sale. With petitioner's implied admission of the validity of the
extrajudicial proceedings, he is likewise estopped from questioning
14
the venue of the public auction.
6. The filing of an action for annulment of mortgage does not
15
toll the period of redemption.
Where mortgagor insists on nullity of mortgage, he cannot raise
16
right to redeem for first time on appeal.
f. Who m a y Exercise Right of Redemption?

In determining whether a person is included within the terms
of a redemption statute, the principle is stated to be that, if one is a
privity in title with the mortgagor, and he has such an interest that
17
he would be a loser by the foreclosure, he may redeem.
13
Spouses Estanislao v. Court of Appeals, 362 SCRA 229, July 31, 2001; See also
DBP v. West Negros College, Inc., 429 SCRA 50, May 21, 2004.
14
Aclon v. Court of Appeals, 387 SCRA 415, August 20, 2002.
15
Union Bank v. Court of Appeals, 359 SCRA 480, J u n e 25, 2001.
16
/d.
17
D e Castro, et al. v. Intermediate Appellate Court, Supra.
442
Redemption is proper where made by debtors, grantee, or as-

signee for the benefit of creditors, assignee or trustee in insolvency
proceedings.
The term "successor-in-interest" includes one to whom the debtor
has transferred his statutory right of redemption; or one to whom
the debtor has conveyed his interest in the property for the purpose
of redemption; or one who succeeds to the interest of the debtor by
operation of law; or one or more joint debtors who were joint owners
of the property sold; or the wife as regards her husband's homestead
by reason of the fact t h a t some portion of her husband's title passes
to her.
The assignee or transferee of all the rights of the original debt-
ors, over the subject property by virtue of a "Deed of sale with as-
sumption of mortgage" may validly exercise the right of redemption
18
as successor-in-interest of said debtors. And so may an attaching
19
creditor.
g. Difference in r e d e m p t i o n price
Under Sections 3 and 4 of Rule 68 the amount to be paid is the
judgment debt. However, the amount payable in redemption of prop-
erty sold at execution sale under Rule 39 is the purchaser's price, no
longer the judgment debt except when otherwise provided for by
20
special laws that to redeem, the mortgage obligation should be paid.
Thus, redemption of properties mortgaged with the Philippine
National Bank and the Development Bank of the Philippines and
foreclosed either judicially or extrajudicially are governed by special
laws which provided for the payment of all the amounts owed by the
debtor. This special protection given to government lending institu-
21
tions is not accorded to judgment creditors in ordinary civil actions.
See also Section 78 of the General Banking Act as amended by PD
1828. The redemption price is that fixed in the order of execution or
the amount due under the mortgage deed, whether the foreclosure is
judicial or extrajudicial.
18
D e Castro v. IAC, Supra.
^Consolidated Bank v. IAC, 150 SCRA 591 (1987).
20
D u l a y v. Carriaga, 123 SCRA 794; See also DBP v. West Negros College, Inc.,
429 SCRA 50, May 21, 2004.
21
D u l a y v. Carriaga, Supra.
443
VOL. Ill
g.l Need for Bona fide Tender of P a y m e n t

There must be an unequivocal tender of payment of the full
amount of repurchase price otherwise the offer to redeem is ineffec-
22
tual.
h. P e n d e n c y of action stops running of redemption
period
The pendency of an action tolls the term of the redemption
23
period.
i. Notice of motion for sale not essential
Where a judgment at foreclosure orders that the mortgage debt
be paid within ninety days, and that, upon default thereof, the prop-
erty be sold for the satisfaction of the indebtedness, notice to the debtor
of a motion for the sale of the property, because of his failure to pay
the debt is not necessary. Such a motion is not of a litigable nature,
and the order may be had as a matter of course. It results that the
failure to give notice of the motion does not affect the validity of the
24
sale.
j. Written notice of sale to j u d g m e n t debtor is required
Section 18, Rule 39 of the Rules of Court as modified by Su-
preme Court Circular No. 8 Promulgated May 15, 1987 requires
that in the sale of property on execution "written notice of the sale
shall be given to the judgment debtor."
k. Notice a n d h e a r i n g of m o t i o n for confirmation es-
sential
Notice and hearing of a motion for confirmation are essential to
the validity of the order of confirmation, not only to enable the inter-
ested parties to resist the motion but also to inform them of the time
25
when the right of redemption (as may be allowed by law) is cut off.
In confirming the sheriff's sale without the essential requisite as to
notice of the motion for confirmation, the court exceeded its power,
26
with the result that the order of confirmation is null and void.
22
B P I Family Savings Bank, Inc. v. Sps. Veloso, 4 3 6 SCRA 1, August 9, 2004.
"Consolidated Bank and Trust Corporation v. IAC, Supra.
24
Gov't. of P.I. v. Cajigas, 55 Phil. 667.
25
Tiglao v. Botones, 90 Phil. 275.
26
Ibid.
444
1. Effects of confirmation
As the title to mortgaged real property does not vest in the pur-
chaser until after the confirmation of the sale, he has, prior to that
time, no right to the possession of such property, and no legal cause
of complaint against the defendants, who remain in possession exer-
cising the rights of ownership. On the other hand, the mortgagors
have no means, until after the confirmation, of compelling the pur-
chaser to comply with the terms of the sale. Should the mortgagors
attempt to compel a purchaser to pay in his money, an answer on the
part of the purchaser to the effect that the sale had not been con-
firmed would be sufficient. The confirmation operates to divest the
title out of the former owner and to vest in the purchaser. It is at this
27
time when the rights or title passes, and not before.
26
In the cases of La Urbana v. Belando, it was held, following
29
the decision in Grimalt v. Velasquez, that after the sale of mort-
gaged property and before its confirmation, the court may still grant
the judgment debtor and opportunity to pay the amount of the judg-
ment. In other words, until a sheriff's sale is validly confirmed, the
judgment debtor may exercise a right of redemption (equity of re-
30
demption).
In Villar v. Javier de Paderanga, 97 Phil. 604, 608, it was held
31
that in foreclosure of mortgage under Rule 70, there is no right of
redemption after the judicial sale is confirmed and when the fore-
closure sale is validly confirmed by the court, title vests upon the
purchaser in the foreclosure sale and the confirmation retroacts to
the date of the sale. Thus, the right of the mortgagee and persons
holding under him are cut off by the sale upon confirmation, and
32
with them the equity of redemption.
m. Valid confirmation is a final order

Law and jurisprudence have formulated the rule that confir-
mation of sale of real estate in judicial proceedings cuts off and all
27
Tiglao v. Botones, Supra.
28
5 4 Phil. 930, and Anderson v. Reyes, 54 Phil. 944.
29
3 6 Phil. 936.
30
31
N o w Rule 68 of the Rules of Court.
32
See also Benedicto v. Yulo, 26 Phil. 160, 166.
445
VOL. Ill
interests of the mortgagor in the real property sold and vests them
in the purchaser. Confirmation retroacts to the date of the sale. An
order of confirmation in court foreclosure proceedings is a final or-
der, not merely interlocutory. The right to appeal therefrom had long
been recognized. In fact, it is the final order from which appeal may
be taken in judicial foreclosure proceedings. Where no appeal was
33
taken, it follows that said order is final and binding.
n. Right of purchaser to i s s u a n c e of writ of possession

The general rule is that after a sale had been made under a
decree in a foreclosure suit, the Court has the power to give posses-
sion to the purchaser, and the latter will not be driven to an action at
law to obtain such possession. The power of the court to issue a
process and place the purchaser in possession, is said to rest upon
the ground that it has the power to enforce its own decree and thus
34
avoid circuitous actions and vexatious litigations.
o. Issuance of writ of p o s s e s s i o n n o t an e x e c u t i o n of
judgment
The issuance of a writ of possession in a foreclosure proceeding
is not an execution of judgment within the purview of Section 6 of
Rule 39 of the Rules of Court but is merely a ministerial and comple-
mentary duty of the court to put an end to the litigation which the
court can undertake even after the lapse of five years, provided the
statute of limitations and the rights of third persons have not inter-
35
vened in the meantime.
Where the judgment involved is already final and executory,
and the properties mortgaged sold by order of the court, and the
purchaser thereof has transferred them to a third person, who now
desires to be placed in their possession, in the exercise of its inter-
locutory duty to put an end to the litigation and save multiplicity of
action, no plausible reason is seen why the court cannot issue a
peremptory order to place the ultimate purchaser in the possession
36
of the property.
33
0 c a m p o v. Domalanta, 20 SCRA 1136, 1139 (1967).
34
R a m o s and Manalac v. Lopez, 89 Phil. 270; See also Rivera v. CFI and Rupac,
61 Phil. 201.
35
R a m o s and Manalac v. Lopez, Supra.
36
""'Ramos and Manalac v. Lopez, Supra.
446
p. D i s t i n g u i s h writ of p o s s e s s i o n from judgment of

foreclosure
The judgment of foreclosure is not to be confused with the writ
of possession.
The judgment of foreclosure loses its executory force by the
37
lapse of five years which must have to be enforced by action. After
the property is sold pursuant to the judgment and confirmed by the
court, the purchaser is entitled to a writ of possession.
In a judicial foreclosure under the General Banking Act there
is a right of redemption within one year from sale (Section 78). A
judicial foreclosure sale must be confirmed in a hearing with notice
to the mortgagee debtor, creditor and purchaser at the auction sale.
Prior to the confirmation of the auction sale the court may
grant the debtor sufficient time to redeem the mortgage estate even
if the bidder sold the property to a third party.
q. When m a y writ of p o s s e s s i o n i s s u e
Until the sale is validly confirmed by the Court, the purchaser
38
is nothing more than a preferred bidder.
In contrast, the purchaser at an extra-judicial foreclosure sale
has a right to the possession of the property even during the one
39
year redemption period provided he files an indemnity bond.
SEC. 4. Disposition of proceeds of sale. The amount

realized from t h e foreclosure sale of t h e mortgaged property
shall, after d e d u c t i n g t h e costs of the sale, be paid to the
p e r s o n foreclosing t h e mortgage, and w h e n there shall be
any balance or residue, after p a y i n g off the mortgage debt
due, t h e same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the court, or if
there be no s u c h encumbrancers or there be a balance or
residue after payment to them, t h e n to the mortgagor or his
duly authorized agent, or to the person entitled to it. (4a)
37
D i a z v. Menezona, 43 Phil. 472.
38
Rural Bank of Oroquieta v. CA, 101 SCRA 5.
39
Navarra v. Court of Appeals, 204 SCRA 850, Dec. 17, 1991.
447
Sec. 5
VOL. Ill
COMMENT:
1. Source of Rule
3. Notes and Cases
Remedy if There is a Surplus

Section 4 of Rule 68 merely provides that where there is a
balance or residue after payment of the mortgage, the same shall be
paid to the mortgagor. There is nothing in said provision from which
it can be inferred that a violation thereof will have the effect of
nullifying the sale. The better rule is that if the mortgagee is retain-
ing more of the proceeds of the sale than he is entitled to, this fact
alone will not affect the validity of the sale but simply gives the
mortgagor a cause of action to recover such surplus. This is likewise
in harmony with the decisional rule t h a t in suing for the return of
the surplus proceeds, the mortgagor is deemed to have affirmed the
validity of the sale since nothing is due if no valid sale has been
1
made.
SEC. 5. How sale to proceed in case the debt is not all

due. If the debt for w h i c h t h e m o r t g a g e or e n c u m b r a n c e
w a s held is not all due as p r o v i d e d in t h e j u d g m e n t , as s o o n
as a sufficient portion of t h e property h a s b e e n sold to pay
the total amount a n d t h e costs due, t h e sale shall terminate;
and afterwards, as often as more b e c o m e s d u e for principal
or interest and other valid charges, t h e court may, on mo-
tion, order more to be sold. But if t h e property c a n n o t be sold
in portions w i t h o u t prejudice to t h e parties, t h e w h o l e shall
be ordered to be sold in t h e first instance, and t h e entire
debt and costs shall be paid, if t h e p r o c e e d s of t h e sale be
sufficient therefor, there b e i n g a rebate of interest w h e r e
such rebate is proper. (5a)
'Sulit v. Court of Appeals, 268 SCRA 4 4 1 , February 17, 1997.
448
Sec. 5
COMMENT:
1. Source of Rule
SEC. 5. How sale to proceed in case the debt is not all due. If
the debt for which the mortgage or encumbrance was held is not all
due, so soon as sufficient of the property has been sold to pay the
amount due, with costs, the sale must cease; and afterwards, as often
as more becomes due (as provided in the judgment) for principal or
interest, the court may, on motion, order more to be sold. But if the
property cannot be sold in portions without injury to the parties, the
whole shall be ordered to be sold in the first instance, and the entire
debt and cost paid, there being a rebate of interest where such rebate
is proper.
2. Change in Rule
The phrase "as provided in the judgment" after the opening
statement "if the debt for which the mortgage or encumbrance was
held is not all due" was inserted, so that a motion for the sale of more
property may be granted.
a. Effects of confirmation
As the title to mortgaged real property does not vest in the
purchaser until after the confirmation of the sale, he has, prior to
that time, no right to the possession of such property, and no legal
cause of complaint against the defendants, who remain in posses-
sion exercising the rights of ownership. On the other hand, the mort-
gagors have no means, until after the confirmation, of compelling
the purchaser to comply with the terms of the sale. Should the
mortgagors attempt to compel a purchaser to pay in his money, an
answer on the part of the purchaser to the effect that the saleîad
not been confirmed would be sufficient. The confirmation operates
to divest the title out of the former owner and to vest in the pur-
chaser. It is at this time when the rights or title passes, and not
1
before.
'Tiglao v. Botones, Supra.
449
VOL. Ill
2
In the cases of La Urbana v. Belando, it was held, following
the decision in Grimalt v. Velasquez, 36 Phil. 936, that after the sale
of mortgaged property and before its confirmation, the court may
still grant the judgment debtor and opportunity to pay the amount
of the judgment. In other words, until a sheriff's sale is validly
confirmed, the judgment debtor may exercise a right of redemption
3
(equity of redemption).
In Villar v. Javier de Paderanga, 97 Phil. 604, 608, it was held
that in foreclosure of mortgage under Rule 70 (now Rule 68 of the
Rules of Court), there is no right of redemption after the judicial sale
is confirmed and when the foreclosure sale is validly confirmed by
the court, title vests upon the purchaser in the foreclosure sale and
the confirmation retroacts to the date of the sale. Thus, the right of
the mortgagee and persons holding under him are cut off by the sale
4
upon confirmation, and with them the equity of redemption.
In a judicial foreclosure under the General Banking Act there
is a right of redemption within one year from sale (Section 78). A
judicial foreclosure sale must be confirmed in a hearing with notice
to the mortgagee debtor, creditor and purchaser at the auction sale.
Prior to the confirmation of the auction sale the court may
grant the debtor sufficient time to redeem the mortgage estate even
if the bidder sold the property to a third party.
b. When m a y writ of p o s s e s s i o n i s s u e
Until the sale is validly confirmed by the Court, the purchaser
5
is nothing more than a preferred bidder.
In contrast, the purchaser at an extra-judicial foreclosure sale
has a right to the possession of the property even during the one
6
year redemption period provided he files an indemnity bond.
SEC. 6. Deficiency judgment. If u p o n t h e sale of any

real property as provided in t h e n e x t p r e c e d i n g section there
be a balance due to the plaintiff after applying the p r o c e e d s
2
5 4 Phil. 930, and Anderson v. Reyes, 54 Phil. 944.
3
*See also Benedicto v. Yulo, 26 Phil. 160, 166.
5
Rural Bank of Oroquieta v. CA, 101 SCRA 5.
6
Navarra v. Court of Appeals, Dec. 17, 1991, 204 SCRA 850.
450
of the sale, t h e court, u p o n motion, shall render judgment

against the defendant for a n y s u c h balance for which, by the
record of the case, he m a y be personally liable to the plain-
tiff, u p o n w h i c h e x e c u t i o n m a y issue immediately if the bal-
ance is all d u e at t h e time of t h e rendition of the judgment;
otherwise, t h e plaintiff shall be entitled to execution at such
time as the balance r e m a i n i n g b e c o m e s due under the terms
of the original contract, w h i c h time shall be stated in the
judgment. (6a)
COMMENT:
1. Source of Rule
2. No substantial c h a n g e
a. When m a y there be deficiency j u d g m e n t
1. A motion for deficiency judgment may be made only after
1
the sale and after it becomes known that a deficiency exists.
2. Deficiency judgment cannot be rendered against a non-
2
resident defendant.
3. No deficiency judgment may be rendered against the owner
who is not a mortgagor and has not assumed personal liability for
3
the debt. The remedy is an ordinary action against the debtor.
4. Death of debtor. If the debtor dies, the deficiency may be
4
filed as a claim against his estate.
SEC. 7. Registration. A certified copy of the final

order of the court confirming the sale shall be registered
w i t h the Registry of Deeds. If no right of redemption exists,
the certificate of title in the n a m e of the mortgagor shall
Governor of P.I. v. Torralba Vda. de Santos, 61 Phil. 689.

2
Banco Espanol Filipino v. Palanca, 37 Phil. 921.
P h i l i p p i n e Trust Co. v. Echaus Tan Siva, 52 Phil. 852 (1929).
4
Sec. 7, Rule 86.
451
VOL. Ill
be canceled, and a n e w one issued in the n a m e of the pur-

chaser.
Where a right of redemption exists, the certificate of
title in the name of the mortgagor shall not be canceled, but
the certificate of sale and the order confirming the sale shall
be registered and a brief memorandum thereof made by the
Registrar of Deeds upon the certificate of title. In the event
of the property is redeemed, the d e e d of redemption shall be
registered with the Registry of Deeds, and a brief memoran-
dum thereof shall be made by the Registrar of D e e d s on said
certificate of title.
If the property is not redeemed, the final d e e d of sale
executed by the sheriff in favor of the purchaser at the fore-
closure sale shall be registered w i t h t h e Registry of Deeds;
whereupon the certificate title in the n a m e of t h e mortgagor
shall be canceled a n d a n e w o n e i s s u e d in t h e n a m e of t h e
purchaser, (n)
COMMENT:
1. Source of Rule
The provision is new, but is in accord with the Property Regis-
tration Decree.
It replaces Sec. 7. Final Record which reads: The final record
in the action shall set forth, in brief, the petition and other plead-
ings, judgment and orders, the proceedings under the order of sale,
the order confirming the sale, the name of the purchaser, with a
description of the property by him purchased, and the certificate of
redemption, if any, or the final deed of conveyance executed in favor
of the purchaser.
Presidential Decree No. 1529, otherwise known as the Prop-
erty Registration Decree, provides:
"Sec. 63. Foreclosure of Mortgage (a) If the mortgage was
foreclosed judicially, a certified copy of the final order of the court
confirming the sale shall be registered with the Register of Deeds. If
no right of redemption exists, the certificate of title of the mortgagor
shall be canceled, and a new certificate issued in the name of the
452
purchaser, Where the right of redemption exists, the certificate of

title of the mortgagor shall not be canceled, but the certificate of sale
and order confirming the sale shall be registered by a brief memo-
randum thereof made by the Register of Deeds upon the certificate
of title. In the event the property is redeemed, the certificate or deed
of redemption shall be filed with the Register of Deeds, and a brief
memorandum thereof shall be made by the Register of Deeds on the
certificate of title of the mortgagor.
If the property is not redeemed, the final deed of sale executed
by the Sheriff in favor of the purchaser at the foreclosure sale shall
be registered with the Register of Deeds; Whereupon the title of the
mortgagor shall be canceled, and a new certificate issued in the
name of the purchaser.
If the mortgage was foreclosed extrajudicially, a certificate of
sale executed by the officer who conducted the sale shall be filed
with the Register of Deeds who shall make a brief memorandum
thereof on the certificate of title.
In the event of redemption by the mortgagor, the same rule
provided for in the second paragraph of this section shall apply.
In case of non-redemption, the purchaser at foreclosure sale
shall file with the Register of Deeds, either a final deed of sale
executed by the person authorized by virtue of the power of attorney
embodied in the deed of mortgage, or his sworn statement attesting
to the fact of non-redemption; whereupon, the Register of Deeds
shall issue a new certificate in favor of the purchaser after the own-
er's duplicate of the certificate has been previously delivered and
1
canceled."
SEC. 8. Applicability of other provisions. The provi-

sions of Sections 31, 32 and 34 of Rule 39 shall be applicable
to the judicial foreclosure of real estate mortgages under
this Rule insofar as the former are not inconsistent with or
may serve to supplement the provisions of the latter. (8a)
'PD 1529.
453
VOL. Ill
COMMENT:
1. Source of Rule.
Taken from Section 8 of the former rule.
The following provisions of Rule 39 are made applicable to this
rule:
SEC. 31. Manner of using premises pending redemption;
waste restrained. Until the expiration of the time allowed for
redemption, the court may, as in other proper cases, restrain the
commission of waste on the property by injunction, on the application
of the purchaser or the judgment obligee, with or without notice; but
it is not waste for a person in possession of the property at the time of
the sale, or entitled to possession afterwards, during the period al-
lowed for redemption, to continue to use it in the same manner in
which it was previously used; or to use it in the ordinary course of
husbandry; or to make the necessary repairs to buildings thereon
while he occupied the property. (33a)
SEC. 32. Rents, earnings and income of property pending

redemption. The purchaser or a redemptioner shall not be enti-
tled to receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when such
property is in the possession of a tenant. All rents, earnings and
income derived from the property pending redemption shall belong to
the judgment obligor until the expiration of his period of redemption.
(34a)
SEC. 34. Recovery of price if sale not effective; revival of
judgment. If the purchaser of real property sold on execution, or
his successor in interest, fails to recover the possession thereof, or is
evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or set
aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover from
the judgment obligee the price paid, with interest, or so much thereof
as has not been delivered to the judgment obligor; or he may, on
motion, have the original judgment revived in his name for the whole
price with interest, or so much thereof as has been delivered to the
454
judgment obligor. The judgment so revived shall have the same force
and effect as an original judgment would have as of the date of the
revival and no more. (36a)
A. Extrajudicial foreclosure of mortgage
ACT NO. 3135
AN ACT TO REGULATE THE SALE OF PROPERTY

UNDER SPECIAL POWERS INSERTED IN OR
ANNEXED TO REAL-ESTATE MORTGAGES
Be it enacted by the Senate and House of Representatives

of the Philippines in Legislative assembled and by the authority
of the same:
Section 1. Sale under special power. When a sale is
made under a special power inserted in or attached to any real-
estate mortgage hereafter made as security for the payment of
money or the fulfillment of any other obligation, the provisions
of the following sections shall govern as to the manner in which
the sale and redemption shall be effected, whether or not provi-
sion for the same is made in the power.
Sec. 2. Place of sale. Said sale cannot be made legally
outside of the province in which the property sold is situated;
and in case the place within said province in which the sale is
to be made is the subject of stipulation, such sale shall be made
in said place or in the municipal building of the municipality in
which the property or part thereof is situated.
Sec. 3. Publication of notices. Notice shall be given by
posting notices of the sale for not less than twenty days in at
least three public places of the municipality or city where the
property is situated, and if such property is worth more than
four hundred pesos, such notice shall also be published once a
week for at least three consecutive weeks in a newspaper of
general circulation in the municipality or city.
Sec. 4. Public auction. The sale shall be made at public
auction, between the hours of nine in the morning and four in
the afternoon; and shall be under the direction of the sheriff of
455
.8 REMEDIAL LAW Rule 68
VOL. Ill
the province, the justice or auxiliary justice of the peace of the

municipality in which such sale has to be made, or a notary
public of said municipality, who shall be entitled to collect a fee
of five pesos for each day of actual work performed, in addition
to his expenses.
Sec. 5. Right of creditor or his representative to participate
in bidding in absence of contrary stipulation. At any sale,
the creditor, trustee, or other person authorized to act for the
creditor, may participate in the bidding and purchase under
the same conditions as any other bidder, unless the contrary
has been expressly provided in the mortgage or trust deed
under which the sale is made.
Sec. 6. Redemption. In all cases in which an extrajudi-
cial sale is made under the special power hereinbefore referred
to, the debtor, his successors in interest or any person having a
lien on the property subsequent to the mortgage or deed of
trust under which the property is sold, may redeem the same
at any time within the term of one year from and after the date
of the sale; and such redemption shall be governed by the pro-
visions of section four hundred and sixty-four to four hundred
and sixty-six, inclusive, of the Code of Civil Procedure, in so far
as these are not inconsistent with the provisions of this Act.
Sec. 7. Possession during redemption period. In any
sale made under the provisions of this Act, the purchaser may
petition the Court of First Instance of the province or place
where the property or any part thereof is situated, to give him
possession thereof during the redemption period, furnishing
bond in an amount equivalent to the use of the property for a
period of twelve months, to indemnify the debtor in case it be
shown that the sale was made without violating the mortgage
or without complying with the requirements of this Act. Such
petition shall be made under oath and filed in form of an ex
parte motion in the registration or cadastral proceedings if the
property is registered, or in special proceedings in the case of
property registered under the Mortgage Law or under section
one hundred and ninety-four of the Administrative Code, or of
any other real property encumbered with a mortgage duly reg-
istered in the office of any register of deeds in accordance with
456
any existing law, and in each case the clerk of the court shall
upon the filing of such petition, collect the fees specified in
paragraph eleven of section one hundred and fourteen of Act
Numbered Four hundred and ninety-six, as amended by Act
Numbered Twenty-eight hundred and sixty-one, and the court
shall, upon approval of the bond, order that a writ of posses-
sion issue, addressed to the sheriff of the province in which
the property is situated, who shall execute said order immedi-
ately.
Sec. 8. Setting aside of sale and writ of possession. The
debtor may, in the proceedings in which possession was re-
quested, but not later than thirty days after the purchaser was
given possession, petition that the sale be set aside and the
writ of possession canceled, specifying the damages suffered by
him, because the mortgage was not violated or the sale was not
made in accordance with the provisions hereof, and the court
shall take cognizance of this petition in accordance with the
summary procedure provided for in section one hundred and
twelve of Act Numbered Four hundred and ninety-six; and if it
finds the complaint of the debtor justified, it shall dispose in
his favor of all or part of the bond furnished by the person who
obtained possession. Either of the parties may appeal from the
order of the judge in accordance with section fourteen of Act
Numbered Four hundred and ninety-six; but the order of pos-
session shall continue in effect during the pendency of the ap-
peal.
Sec. 9. Deduction of interest. When the property is re-
deemed after the purchaser has been given possession, the
redeemer shall be entitled to deduct from the price of redemp-
tion any rentals that said purchaser may have collected in case
the property or any part thereof was rented; if the purchaser
occupied the property as his own dwelling, it being town prop-
erty, or used it gainfully, it being rural property, the redeemer
may deduct from the price the interest of one per centum per
month provided for in section four hundred and sixty-five of
the Code of Civil Procedure.
Sec. 10. This Act shall take effect on its approval.
Approved, March 6, 1924.
457
VOL. I l l
B. Notes and cases

APPLICATIONS FOR EXTRAJUDICIAL OF MORTGAGE
IS GOVERNED BY SUPREME COURT RESOLUTION OF DE-
CEMBER 14,1999 IN ADMINISTRATIVE MATTER NO. 99-10-
05 RE PROCEDURE IN EXTRAJUDICIAL FORECLOSURE
OF MORTGAGE AS AMENDED BY THE RESOLUTIONS
DATED JANUARY 30, 2001 AND AUGUST 7, 2001
Apart from requiring that all applications for extra-judicial
foreclosure of mortgage, whether under the direction of the Sheriff
or a notary public pursuant to Act No. 3135, as amended and Act
1508 as amended, to be filed with the Executive Judge, through the
Clerk of Court, who is also the Ex-Oficio Sheriff, the Circular like-
wise directs that:
"Where the application concerns the extrajudicial fore-
closure of Mortgages of real estates and/or chattels in different
locations covering one indebtedness, only one filing fee corre-
sponding to such indebtedness shall be collected. The collecting
Clerk of Court shall, apart from the official receipt of the fees,
issue a certificate of payment indicating the amount of indebt-
edness, the filing fees collected, the mortgages sought to be
foreclosed, the real estates and/or chattels mortgaged and their
respective locations, which certificate shall serve the purpose
of having the application docketed with the Clerks of Court of
the places where the other properties are located and of allow-
1
ing the extrajudicial foreclosures to proceed thereat."
Presumption of Regularity
Foreclosure proceedings have in their favor the presumption of
regularity and the burden of evidence to rebut the same is on the
2
petitioner.
1. Personal notice not required

An extrajudicial foreclosure of mortgage requires only the post-
ing of notices of sale in three public places and publication of the
^ e e also Development Bank of the Philippines v. Court of Appeals, 403 SCRA

460, 10 June 2003.
2Villacencio v. Mojares, 398 SCRA 314, Feb. 27, 2003.
458
same in a newspaper of general circulation. Personal notice is not

3
required. Thus:
It is now a well-settled rule that personal notice to the mortga-
gor in extrajudicial foreclosure proceedings is not necessary. Section
3 of Act No. 3135 governing extrajudicial foreclosure of real estate
mortgages, as amended by Act No. 4118, requires only the posting of
the notice of sale in three public places and the publication of that
notice in a newspaper of general circulation. Hence, the lack of per-
sonal notice to the mortgagors, herein petitioners, is not a ground to
set aside the foreclosure sale.
Neither can the supposed failure of respondent bank to comply
with the posting requirement as provided under the aforesaid Sec-
tion 3, under the factual ambiance and circumstances which ob-
tained in this case, be considered a sufficient ground for annulling
the aforementioned sale. We are not unaware of the rulings in some
cases that, under normal situations, the statutory provisions gov-
erning publication of notice of extrajudicial foreclosure sales must
be strictly complied with and that failure to publish the notice of
auction sale as required by the statute constitutes a jurisdictional
defect which invalidates the sale. However, the unusual nature of
the attendant facts and the peculiarity of the confluent circumstances
involved in this case require that we rule otherwise.
Petitioners' cited authority on the requisite publication of no-
tices is not so all-embracing as to deny justified exceptions thereto
under appropriate situations. Petitioners quote this passage from
Tambunting, et al. v. Court of Appeals, et al., which is not conclusive
hereon for not being exactly in point, based as it is on different facts,
thus:
"The rule is that statutory provisions governing publications of
notice of mortgage foreclosure sales must be strictly complied with,
and that even slight deviations therefrom will invalidate the notice
and render the sale at least voidable. Interpreting Sec. 457 of the
Code of Civil Procedure (reproduced in Sec. 18[c] of Rule 39, Rules of
Court and in Sec. 3 of Act No. 3135) in Campomanes v. Bartolome
3
Gravina v. Court of Appeals, March 19, 1993, 220 SCRA 178; Philippine Na-
tional Bank v. Rabat, 344 SCRA 706, November 15, 2000. See also Ardiente v. Provin-
cial Sheriff, 436 SCRA 655, August 17, 2004.
459
VOL. Ill
4
and German and Co., this Court held that if a sheriff sells without
the notice prescribed by the Code of Civil Procedure induced thereto
by the judgment creditor, the sale is absolutely void and no title
passes, x x x." (Emphasis supplied.)
xxx xxx xxx
Furthermore, unlike the situation in previous cases where the
foreclosure sales were annulled by reason of failure to comply with
the notice requirement under Section 3 of Act No. 3135, as amended,
what is allegedly lacking here is the posting of the notice in three
public places, and not the publication thereof in a newspaper of
general circulation.
We take judicial notice of the fact that newspaper publications
have more far-reaching effects than posting on bulletin boards in
public places. There is a greater probability that an announcement
or notice published in a newspaper of general circulation, which is
distributed nationwide, shall have a readership of more people than
that posted in a public bulletin board, no matter how strategic its
location may be, which caters only to a limited few. Hence, the publi-
cation of the notice of sale in the newspaper of general circulation
alone is more than sufficient compliance with the notice-posting
requirement of the law. By such publication, a reasonably wide pub-
licity had been effected such that those interested might attend the
public sale, and the purpose of the law had been thereby subserved.
The object of a notice of sale is to inform the public of the
nature and condition of the property to be sold, and of the time,
place and terms of the sale. Notices are given for the purpose of
accruing bidders and to prevent a sacrifice of the property. If these
objects are attained, immaterial errors and mistakes will not affect
the sufficiency of the notice; but if mistakes or omissions occur in the
notices of sale, which are calculated to deter or mislead bidders, to
depreciate the value of the property, or to prevent it from bringing a
fair price, such mistakes or omissions will be fatal to the validity of
the notice, and also to the sale made pursuant thereto.
In the instant case, the aforesaid objective was attained since
there was sufficient publicity of the sale through the newspaper
4
3 8 Phil. 808.
460
publication. There is completely no showing that the property was

sold for a price far below its value as to insinuate any bad faith, nor
was there any showing or even an intimation of collusion between
the sheriff who conducted the sale and respondent bank. This being
so, the alleged non-compliance with the posting requirement, even if
5
true, will not justify the setting aside of the sale.
EXCEPTION
While personal notice to the mortgagor is not necessary, never-
theless, the parties to the mortgage contract are not precluded from
exacting additional requirements, such as the requirement of per-
sonal notice of any correspondence relative to the mortgage includ-
ing demand letters, summons, subpoenas or notifications of any
judicial or extrajudicial actions, to the mortgagor. The stipulation
not being contrary to law, morals, good customs, public policy or
public order, is the law between the contracting parties and should
6
be faithfully complied with.
a. Notice a n d p o s t i n g of Extrajudicial Foreclosure In-
dispensable
Thus, where, personal notice of foreclosure is stipulated in the
7
agreement a sale without such notice is void.
P o s t i n g a n d publication are indispensable requirements

8
Olizon v. Court of Appeals, has not actually dispensed with the
posting requirement, but did so only because of the unusual nature
of the attendant facts and circumstances involved in the case. In
said case, the sale sought to be annulled was conducted more than
15 years ago, thus, even on the equitable ground of laches, the Olizon's
action for annulment of foreclosure proceedings and certificate of
9
sale was bound to fail.
5
01izon v. Court of Appeals, 236 SCRA 148; See also Villacencio v. Mojares, 398
SCRA 314, Feb. 2 7 , 2 0 0 3 .
6
Concepcion v. Court of Appeals, 274 SCRA 614, June 27, 1997.
Metropolitan Bank and Trust Company v. Wong, G.R. No. 120859, June 26,
2 0 0 1 , 3 5 9 SCRA 608.
8
2 3 6 SCRA 148 (1994).
Metropolitan Bank and Trust Company v. Wong, 359 SCRA 608, June 2 6 , 2 0 0 1 .
461
VOL. Ill
b. Non-execution of Certificate of P o s t i n g of Auction

Sale Notices Does Not Invalidate Sale
A certificate of posting is not, however, required, much less
considered indispensable for the validity of an extrajudicial foreclos-
ure sale under Act No. 3135. The fact alone that there is no certificate
of posting attached to the Sheriff's records is not sufficient to prove
the lack of posting. In the absence of evidence to the contrary, the
presumption prevails that the sheriffs performed their official duty
10
of posting the notices of sale.
Requirements of publication is, however, jurisdictional includ-
11
ing proper posting of notices. Publication of notice of foreclosure
12
mandated by Act No. 3135 cannot be waived.
However, the issue of lack of publication of the notice of fore-
13
closure of mortgage cannot be raised for the first time on appeal.
Act No. 3135, as amended, governing extrajudicial foreclos-
ure of mortgages on real property is specific with regard to the
posting and publication requirements of the notice of sale, to wit:
"Sec. 3. Notice shall be given by posting notices of the sale
for not less than twenty days in at least three public places of
the municipality or city where the property is situated, and if
such property is worth more than four hundred pesos, such
notice shall also be published once a week for at least three
consecutive weeks in a newspaper of general circulation in the
municipality or city."
What Act No. 3135 requires is: (1) the posting of notices of
sale in three public places; and (2) the publication of the same in
14
a newspaper of general circulation. Failure to publish the notice
10
B o h a n a n v. Court of Appeals, 256 SCRA 355; Cristobal v. Court of Appeals,
328 SCRA 256; Development Bank of the Philippines v. Court of Appeals, 403 SCRA
460, June 10, 2003.
11
Lucena v. CA, 313 SCRA 47, August 25, 1999. See Footnote 15.
12
Supra; P N B v. Nepomuceno Productions, Inc., 394 SCRA 405, Dec. 27, 2002;
See Vda. de Toledo v. Toledo, 417 SCRA 200 ( 2 0 0 3 ) .
13
Ardiente v. Provincial Sheriff, 436 SCRA 655, August 17, 2004, citing Go v.
Court of Appeals, 210 SCRA 661 (1992).
"Metropolitan Bank and Trust Company v. Wong, 359 SCRA 608, June 2 6 , 2 0 0 1 ;
Valmonte v. Court of Appeals, 303 SCRA 278, 289 (1999); Fortune Motors (Phils.), Inc.
v. Metropolitan Bank and Trust Company, 265 SCRA 71, 81 (1996).
462
Sec. 8
of sale constitutes a jurisdictional defect, which invalidates the

15
sale.
The posting and publication requirements under Act No. 3135
cannot be dispensed with even if the parties agreed in writing that
the auction sale may proceed without need of re-publication and re-
posting of the notice of sale.
***
The principal object of a notice of sale in a foreclosure of mort-

gage is not so much to notify the mortgagor as to inform the public
generally of the nature and condition of the property to be sold, and
of the time, place, and terms of the sale. Notices are given to secure
bidders and prevent a sacrifice of the property. The statutory re-
quirements of posting and publication are mandated, not for the
mortgagor's benefit, but for the public or third persons. In fact,
personal notice to the mortgagor in extrajudicial foreclosure pro-
ceedings is not even necessary, unless stipulated. As such, it is im-
bued with public policy considerations and any waiver thereon would
be inconsistent with the intent and letter of Act No. 3135.
Moreover, statutory provisions governing publication of notice
of mortgage foreclosure sales must be strictly complied with and
slight deviations therefrom will invalidate the notice and render the
sale at the very least voidable.
"Where required by the statute or by the terms of the foreclos-
ure decree, public notice of the place and time of the mortgage fore-
closure sale must be given, a statute requiring it being held applica-
ble to subsequent sales as well as to the first "advertised sale of the
property. It has been held that failure to advertise a mortgage fore-
closure sale in compliance with statutory requirements constitutes a
jurisdictional defect invalidating the sale and that a substantial
error or omission in a notice of sale will render the notice insufficient
and vitiate the sale."
15
Development Bank of the Philippines v. Aguirre, 364 SCRA 755, September 7,
2001. Exception: Sec. 5, R.A. No. 720 as amended by R.A. No. 5939, where the total
amount of the loan granted by Rural banks including interests due to unpaid does not
exceed the three thousand pesos shall be exempt from publication. (Vda. de Toledo v.
Toledo, G.R. No. 149964, December 8, 2003, 417 SCRA 260).
463
VOL. Ill
Lack of Republication Renders Foreclosure Sale Void

Thus, in the recent case of Development Bank of the Philip-
pines v. Aguirre, the foreclosure sale held more than two (2) months
after the published date of sale was considered void for lack of re-
publication. Similarly, in the instant case, the lack of republication
of the notice of the December 20, 1976 foreclosure sale renders it
void.
The right of a bank to foreclose a mortgage upon the mortga-
gor's failure to pay his obligation must be exercised according to its
clear mandate, and every requirement of the law must be complied
with, lest the valid exercise of the right would end. The exercise of a
right ends when the right disappears, and it disappears when it is
16
abused especially to the prejudice of others.
Republication in the manner prescribed by Act No. 3135 is
necessary for the postponed validity of a postponed extrajudicial
foreclosure. Another publication is required in case the auction sale
is rescheduled, and cannot be waived. The absence of such republi-
17
cation invalidates the foreclosure sale.
Exception:
Under the last paragraph of the prescribed form of the notice of
extrajudicial sale prescribed in Circular No. 7-2002 issued by the
18
Office of the Court Administrator.
"In the event the public auction should not take place on the
said date, it shall be held on without further
notice."
This allows the holding of a rescheduled auction sale without
reposting or republication of the notice. However, the rescheduled
auction sale will only be valid if the rescheduled date of auction is
clearly specified in the prior notice of sale. The absence of this infor-
mation in the prior notice of sale will render the rescheduled auction
16
P N B v. Nepomuceno Productions, Inc., 394 SCRA 405, Dec. 27, 2002.
17
Ouano v. Court of Appeals, 398 SCRA 425, March 4, 2003; Development Bank
of the Philippines v. Court of Appeals, 403 SCRA 460, June 10, 2003.
18
Issued on January 22, 2002.
464
void for lack of reposting or republication. If the notice of auction

sale contains this particular information, whether or not the parties
agreed to such rescheduled date, there is no more need for the
reposting or republication of the notice of the rescheduled auction
19
sale.
The same principles were reiterated in Ouano v. Court of Ap-
20
peals.
Distinction should be made of the three different kinds of sales
under the law, namely: an ordinary execution sale, a judicial fore-
closure sale, and an extrajudicial foreclosure sale. An ordinary ex-
ecution sale is governed by the pertinent provisions of Rule 39 of the
Rules of Court. Rule 68 of the Rules of Court applies in cases of
judicial foreclosure sale. On the other hand, Act No. 3135, as amended
by Act No. 4118 otherwise known as "An Act to Regulate the Sale of
Property under Special Powers Inserted in or Annexed to Real Es-
tate Mortgages" applies in cases of extrajudicial foreclosure sale. A
21
different set of law applies to each class of sale mentioned. The
cited provision in the Rules of Court, hence, does not apply to an
extrajudicial foreclosure sale.
The mere written request of the parties is not sufficient to
authorize the sheriff to reset the sale without republication or
22
reposting. The waiver being void for being contrary to the express
23
mandate of Act No. 3135, such cannot be ratified by estoppel.
Estoppel cannot give validity to an act that is prohibited by law or
24
one that is against public policy. Neither can the defense of illegal-
25
ity be waived.
Where Injunctions to Restrain Extrajudicial Foreclosure in-

volving several parcel located in different provinces filed
Separate injunction suits may be filed for breach of mortgage
19
Development Bank of the Philippines v. Court of Appeals, 403 SCRA 460, June
10, 2003.
20
Q u a n o v. Court of Appeals, 398 SCRA 525, March 4, 2003.
21
F i e s t a n v. CA, 185 SCRA 751 (1990).
22
Rollo, p. 13.
23
N e w Civil Code, Art. 1409.
24
Auyong Hian v. CA, 59 SCRA 110 (1974). w
2
>See note 44, supra; Ouano v. Court of Appeals, G.R. No. 129279, March 4,
2003, 398 SCRA 525.
465
VOL. Ill
contract with injunction to restrain extrajudicial foreclosure pro-

ceedings of mortgaged properties located in different provinces with-
out violating the rule against forum shopping since injunction is
enforceable only within the territorial limits of the trial court, thus
the mortgagor is left without remedy as to the properties located
outside the jurisdiction of the issuing court unless an application for
injunction is made with another court which has jurisdiction over
26
the latter court.
2. Effect of Redemption
Redemption is an implied admission of the regularity of the
sale and estops the mortgagor from impugning its validity and the
27
venue of the public auction.
3. Right of purchaser to writ of p o s s e s s i o n

Under Section 7 of Act 3135 the Purchaser is entitled to the
possession of the property during the redemption period, provided
that a proper motion has been filed, a bond approved and no third
person is involved. So had it been held in Marcelo Steel Corp. v.
28
Court of Appeals.
The law expressly authorizes the purchaser to petition for a
writ of possession during the redemption period by filing an ex parte
motion under oath for that purpose in the corresponding registra-
tion or cadastral proceeding in the case of property with Torrens
title; and upon the filing of such motion and the approval of corre-
sponding bond, the law also in express terms directs the court to
issue the order for a writ of possession. The order for a writ of
possession issues as a matter of course upon the filing of the proper
motion and the approval of the corresponding bond. No discretion is
left to the court. And any question regarding the regularity and
validity of the sale (and the consequent cancellation of the writ) is
left to be determined in a subsequent proceeding as outlined in
Section 8. Such question is not to be raised as a justification for
26
B e n g u e t Management Corporation v. Court of Appeals, 411 SCRA 347, Sep-
tember 18, 2003.
27
Aclon v. Court of Appeals, G.R. No. 106880, August 20, 2002, 387 SCRA 415.
28
5 4 SCRA 89, 99, citing De Gracia v. San Jose, 94 Phil. 623; See also Clapano v.
Gapultos, 132 SCRA 429 (1984).
466
Sec. 8
opposing the issuance of the writ- of possession since, under the Act
29
the proceeding for this is ex parte. '
Where the period of redemption had already lapsed with no
redemption having been made, there is no justifiable ground why
the writ of possession would not be issued. In the case of IFC Service
30
Leasing and Acceptance Corp. v. Nera, the Supreme Court held:
"Moreover, if under Section 7 of Act 3135 the Court has

the power, on the ex parte application of the purchaser, to issue
a writ of possession during the period of redemption, there is
no reason why it should not also have the same power after the
expiration of t h a t period, especially where, as in this case, a
new title has already been issued in the name of the purchaser."
31
Philippine National Bank v. Adil, reiterated the aforecited
case when it ruled that:
"Also, Section 6 of Act No. 3135, as amended by Act 4118,

the law that regulates the methods affecting extrajudicial fore-
closure of mortgage provides t h a t in cases in which an extraju-
dicial sale is made," redemption shall be governed by the provi-
sions of sections for hundred and sixty-four to four hundred
and sixty-six, inclusive, of the Code of Civil Procedure insofar
as these are not inconsistent with the provisions of this Act."
(Sections 464-466 of the Code of Civil Procedure were super-
seded by Sections 25-27 and Section 31 of Rule 39 of the Rules
of Court which in turn were replaced by Sections 29 to 31 and
Section 35 of Rule 39 of the Revised Rules of Court) Section 35
which is one of he specific provisions applicable to the case at
bar provides that 'if no redemption be made within twelve (12)
months after the sale, the purchaser, or his assignee, is entitled
to a conveyance and possession of property, x x x . The posses-
sion of the property shall be given to the purchaser or last
redemptioner by the same officer unless a third party is actu-
32
ally holding the property adversely to the judgment debtor.'"
2
*Ibid.; Vda. Navarra v. Court of Appeals, Dec. 17, 1991; Sulit v. Court of Ap-
peals, G.R. No. 119247, February 17, 1997, 268 SCRA 441; See also Samson v. Rivera
428 SCRA 759, May 20, 2004.
30
1 9 SCRA 181, 185.
31
1 1 8 SCRA 110, 115.
32
See also Roxas v. Buan, 167 SCRA 43, November 8, 1988.
467
VOL. Ill
The rule, therefore, is that after the redemption period has

expired, the purchaser of the property has the right to be placed in
33
possession thereof without the need of a separate and independent
34
action.
The right to possess an extrajudicially foreclosed property is
not affected by the pendency of an action for annulment of foreclos-
35
ure proceedings.
A mortgagee who has foreclosed upon the mortgaged real prop-
erty of a delinquent debtor and has purchased the same at the
foreclosure sale, can be granted a writ of possession over the prop-
erty despite the fact that the premises are in the possession of a
lessee thereof which has not as yet been terminated, unless the
lease has been previously registered in the Registry of Property or
36
the mortgagee has prior knowledge of the lease.
Issuance of Writ of P o s s e s s i o n
An Ex-parte Petition for the Issuance of a Writ of Possession
may be filed after the expiration of the period to redeem by the
nature of the petition, no notice needed to be served upon persons
interested in the subject property. Hence, there was no necessity of
giving notice to the mortgagors especially since they already lost all
their interests in the properties when they failed to redeem the
37
same.
In another case, the court held: Respondent bank's right to
possess the property is clear and is based on its right of ownership
33
Banco Filipino Savings and Mortgage Bank v. IAC, 142 SCRA 46, 48.
34
U n c h u a n v. CA, G.R. 78755, May 3 1 , 1 9 8 8 , 1 6 1 SCRA 710; Vide Joven v. Court
of Appeals, 212 SCRA 700 (1992); See also China Banking Corp. v. Spouses Ordinario,
399 SCRA 431, March 24, 2003.
35
Songco v. CFI of Rizal, 127 SCRA 320; Mirasol v. IAC, 162 SCRA 306; Jacobs v.
Court of Appeals, 194 SCRA (1990); Vaca v. Court of Appeals, 234 SCRA 146. July 14,
1994.
36
Ibasco v. Caguioa, 143 SCRA 538; Autocorp Group v. Court of Appeals, 437
SCRA 678 (2004); Mamerto Maniquez Foundation, Inc. v. Pizarro, 448 SCRA 142 (2005);
Arquiza v. Court of Appeals, G.R. No. 160479, June 8 , 2 0 0 5 holding also that the petition
is not an initiatory pleading.
37
L a u r e a n o v. Bormaheco, Inc., 351 SCRA 270, February 6, 2 0 0 1 , cited in
Tansipek v. Philippine Bank of Communications, 372 SCRA 456, Dec. 14,2001; Yulienco
v. Court of Appeals, 393 SCRA 143, Nov. 27, 2002; See also P N B v. Sanao Marketing
Corp., G.R. No. 153951, July 29, 2005.
468
as a purchaser of the properties in the foreclosure sale to whom title

38
has been conveyed. Under Section 7 of Act No. 3135 and Section 35
of Rule 39, the purchaser in a foreclosure sale is entitled to posses-
39
sion of the property. The bank in this case has a better right to
40
possess the subject property because of its title over the same.
Issuance of Preliminary Injunction, When Proper

"x x x (I)t was highly irregular for the respondent court to issue
the questioned writ based merely on the document of sheriff's cer-
tificate of posting. No other evidence, oral or documentary, was ever
presented by the private respondents to fully substantiate their
prayer for the injunctive relief. It is well-settled that a foreclosure
proceeding enjoys the presumption of regularity in its conduct being
an official business, and it is the defendants, herein private respond-
ents, who have the burden of showing by convincing proof that the
foreclosure proceeding is tainted with irregularity for them to be
41
entitled to the writ prayed for."
A preliminary injunction is proper only when the plaintiff ap-
pears to be entitled to the relief demanded in his complaint. Injunc-
tion, like other equitable remedies, will issue only at the instance of
a suitor who has sufficient interest or title in the right or property
sought to be protected. Hence, for the court to act, there must be an
existing basis of facts affording a present right which is directly
threatened by an act sought to be enjoined. And while a clear show-
ing of the right claimed is necessary, its existence need not be con-
clusively established. In fact, the evidence to be submitted to justify
preliminary injunction at the hearing thereof need not be conclusive
or complete but need only be a "sampling" intended merely to give
the court an idea of the justification for the preliminary injunction
42
pending the decision of the case on the merits.
38
Philippine National Bank v. CA, 118 SCRA 110, November 2, 1982.
39
Javelosa v. CA, 265 SCRA 493, December 10, 1996.
" P e r s o n s with Torrens title over land are entitled to possession thereof.
Pangilinan v. Aguilar, 43 SCRA 136 (1972); Sps. Arcega v. CA, 275 SCRA 176, July 7,
1997; P N B v. Sanao, G.R. No. 153951, July 29, 2005.
41
Supra.
"Saulog v. Court of Appeals, 262 SCRA 51, September 18, 1996; Sps. Arcega v.
CA, 275 SCRA 176, July 7, 1997.
469
VOL. Ill
4. Exception
The rule is, however, not without exception. Under Section 35,
Rule 39 of the Rules of Court which is made applicable to the extra-
judicial foreclosure of real estate mortgages by Section 6 of Act 3135,
the possession of the mortgaged property may be awarded to a pur-
chaser in the extrajudicial foreclosure sale "unless a third party is
43
actually holding the property adversely to the judgment debtor."
a. Remedy of Third Party in P o s s e s s i o n

44
In China Banking Corporation v. Spouses Ordinario, the court
held: That the provisions of Section 7 of Act No. 3135 is not without
exception. Under Section 33, Rule 39 of the 1997 Rules of Civil
Procedure, as amended, the possession of the foreclosed property
may be awarded to the purchaser or highest bidder "unless a third
party is actually holding the property adversely to the judgment
debtor." Assuming arguendo that respondent spouses are adverse
third parties, as they so averred, Section 16 of the same Rule re-
serves to them the remedies of (1) terceria to determine whether the
sheriff has rightly or wrongly taken hold of the property not belong-
ing to the judgment debtor or obligor and (2) an independent "sepa-
rate action" to vindicate their claim of ownership and/or possession
45
over the foreclosed property.
46
Thus, in Philippine National Bank v. Court of Appeals. The
Court ruled that an ex-parte writ of possession issued pursuant to
Act No. 3135, as amended, cannot be enforced against a third person
who is in actual possession of the foreclosed property and who is not
in privity with the debtor/mortgagor. To do so would be to sanction
his summary ejectment in violation of the basic tenets of due proc-
ess. This is because properties brought within the ambit of Act No.
43
S u l i t v. Court of Appeals, 268 SCRA 4 4 1 , February 17, 1997, citing Roxas, et
al. v. Buan, et al., 167 SCRA 43 (1988); See also Capital Credit Dimension, Inc. v.
Chua, 428 SCRA 259, April 28, 2004. Holding that the writ of possession cannot be
enforced against a third person in actual possession.
" 3 9 9 SCRA 430, March 24, 2003.
45
S e e discussion of Remedies under Section 16, Rule 39, VOLUME II, REMEDIAL
LAW, infra.
46
3 7 4 SCRA 22 (2002); see also Barican v. Intermediate Appellate Court, 162
SCRA 358 (1988) and Philippine National Bank v. Court of Appeals, 275 SCRA 70
(1997).
470
Sec. 8
3135, unlike those subject to judicial foreclosure, are foreclosed by

the mere filing of a petition with the office of the sheriff of the
province where the sale is to be made. A third person in possession of
the extrajudicially foreclosed property, who claims a right superior
to that of the original mortgagor, is thus given no opportunity to be
heard in his claim. Considering the lack of opportunity, such third
person may therefore not be dispossessed on the strength of a mere
ex-parte possessory writ issued in foreclosure proceedings to which
47
he was not a party.
The cases cited by petitioner to support his claim that the
issuance of a writ of possession in favor of the mortgagee of a fore-
closed property after the period of redemption has expired is minis-
terial upon the trial court do not apply since the parties who filed
the cases questioning the mortgage and its foreclosure were the
debtors/mortgagors themselves, not third parties, as in the instant
48
case.
49
b. In Cometa v. Intermediate Appellate Court, the court
ordered the deferment of the issuance "of the writ of possession not-
withstanding the lapse of the one-year period of redemption.
50
c. In Barican v. Intermediate Appellate Court, the Court
took into account the circumstances that long before the mortgagee
bank has sold the disputed property to the respondent therein, it
was no longer the judgment debtor who was in possession but the
petitioner spouses who had assumed the mortgage, and that there
was a pending civil case involving the right of third parties. Hence,
it was ruled therein that under the circumstances, the obligation of
a court to issue a writ of possession in favor of the purchaser in a
51
foreclosure of mortgage case ceases to be ministerial.
52
d. In Vaca v. Court of Appeals, Justice Mendoza of the Sec-
ond Division explained that the deferment, was due to the peculiar
47
Capital Credit Dimension v. Chua, 428 SCRA 259, April 28, 2004.
48
Supra. .
49
1 5 1 SCRA 563 (1987) and Barican v. Intermediate Appellate Court, 162 SCRA
358 (1988).
^Supra.
51
Cited in Sulit v. Court of Appeals, 268 SCRA 441, February 17, 1997.
62
2 3 4 SCRA 148 (1994).
471
VOL. Ill
circumstances of those cases. In Cometa, which actually involved

execution under Rule 39, Sec. 35, the properties were sold at an
unusually lower price than their true value, while in Barican, the
mortgagee bank took five years from the time of foreclosure on Octo-
ber 10, 1980 before filing the petition for the issuance of a writ of
possession on August 16,1985. Earlier the property had been sold to
third parties who assumed the indebtedness of the mortgagor and
took possession of the property so that at the time of the hearing on
the petition for a writ of possession, the original debtor was no
longer in possession. Under these circumstances, it was held that
the obligation of the court to issue the writ of possession had ceased
53
to be ministerial.
54
In Sulit v. Court of Appeals, the court affirmed the decision of
the Court of Appeals withholding the issuance of the writ for failure
of the mortgagee or purchaser to pay the surplus proceeds of the sale
to the mortgagor or the person entitled thereto.
55
e. In Philippine National Bank v. Court of Appeals. The
Court ruled that an ex-parte writ of possession issued pursuant to
Act No. 3135, as amended, cannot be enforced against a third person
who is in actual possession of the foreclosed property and who is not
in privity with the debtor/mortgagor. To do so would be to sanction
his summary ejectment in violation of the basic tenets of due proc-
ess. This is because properties brought within the ambit of Act No.
3135, unlike those subject to judicial foreclosure, are foreclosed by
the mere filing of a petition with the office of the sheriff of the
province where the sale is to be made. A third person in possession of
the extrajudicially foreclosed property, who claims a right superior
to that of the original mortgagor, is thus given no opportunity to be
heard in his claim. Considering the lack of opportunity, such third
person may therefore not be dispossessed on the strength of a mere
ex parte possessory writ issued in foreclosure proceedings to which
he was not a party.
The cases cited by petitioner to support his claim that the issu-
ance of a writ of possession in favor of the mortgagee of a foreclosed
53
S p s . Vaca v. CA and Associated Bank, 234 SCRA 146, July 14, 1994.
M
G . R . No. 119427, February 1 7 , 1 9 9 7 , supra.
66
3 7 4 SCRA 22 (2002).
472
Sec. 8
property after the period of redemption has expired is ministerial upon

the trial court do not apply since the parties who filed the cases ques-
tioning the mortgage and its foreclosure were the debtors/mortga-
56
gors themselves, not third parties, as in the instant case.
* 5. Intervention not proper u n d e r Act 3135

Intervention contemplates a suit, and is therefore exercisable
during a trial and, is one which envisions the introduction of evi-
dence by the parties, leading to the rendition of the decision in the
case. This concept is not that contemplated by Sec. 7 of Act No. 3135,
whereby under settled jurisprudence, the judge has to order the
immediate issuance of a writ of possession (1) upon the filing of the
proper motion and (2) the approval of the corresponding bond. The
rationale for the mandate is to allow the purchaser to have posses-
sion of the foreclosed property without delay, such possession being
founded on his right of ownership. A trial which entails delay is
57
obviously out of the question.
6. Inter venor's r e m e d y
The intervener's remedy is a separate, distinct, and independ-
58
ent suit, provided for in Section 8 of Act No. 3135.
In case it is disputed that there was violation of the mortgage
or that the procedural requirements for the foreclosure sale were not
followed, Sec. 8 of Act No. 3135 as amended by Act No. 4118, provides
that the mortgagor may file a petition with the trial court which
issued the writ to set aside the sale and for cancellation of the writ of
possession within 30 days after the purchaser-mortgagee was given
possession.
The law is clear that the purchaser must first be placed in
possession of the mortgaged property pending proceedings assailing
the issuance of the writ of possession. If the trial court later finds
merit in the petition to set aside the writ of possession, it shall
56
Capital Credit Dimension v. Chua, 428 SCRA 257, April 28, 2004 (Citations
Omitted). C P R A Odd
"Government Service Insurance System v. Court of Appeals, 169 b L K A w
(1989).
58
G S I S v. Court of Appeals, Supra.
473
VOL. Ill
dispose in favor of the mortgagor the bond furnished by the pur-

chaser. Thereafter, either party may appeal from the order of the
judge in accordance with Section 14 of Act No. 496, which provides
t h a t "every order, decision, and decree of the Court of Land
Registration may be reviewed... in the same manner as an order,
decision decree or judgment of a Court of First Instance (RTC) might
be reviewed." The rationale for the mandate is to allow the purchaser
to have possession of the foreclosed property without delay, such
59
possession being founded on his right of ownership.
In several cases, the Court has ruled that the issuance of a writ
of possession is a ministerial function. "The order for a writ of pos-
session issues as a matter of course upon the filing of the proper
motion and the approval of the corresponding bond. The judge issu-
ing the order following these express provisions of law cannot be
charged with having acted without jurisdiction or with grave abuse
60
of discretion." Therefore, the issuance of the writ of possession
being ministerial in character, the implementation of such writ by
the sheriff is likewise ministerial.
Contrary to petitioners' protestations t h a t Veloso v. Intermedi-
61
ate Appellate Court, should only apply to cases wherein the one-
year period for redemption has already lapsed, Veloso makes no such
distinction.
As a rule, any question regarding the validity of the mortgage
or its foreclosure cannot be a legal ground for refusing the issuance
of a writ of possession. Regardless of whether or not there is a
pending suit for annulment of the mortgage or the foreclosure itself,
the purchaser is entitled to a writ of possession, without prejudice of
course to the eventual outcome of said case. Hence, an injunction to
62
prohibit the issuance of writ of possession is entirely out of place.
P e n d i n g Case For Annulment Not a Prejudicial Question

The pendency of annulment of the foreclosure sale is not a
prejudicial question and an obstacle to the issuance of writ of pos-
59
lbid.
60
G S I S v. CA, 169 SCRA 244, 256 (1989).
61
2 0 5 SCRA 2 2 7 ( 1 9 9 2 ) .
6 2
0 n g v. Court of Appeals, et al., 333 SCRA 189, J u n e 8, 2000.
474
Sec. 8
session. Until the foreclosure sale of the property is annulled by a

court of competent jurisdiction, the mortgagor is bereft of any valid
title and right to prevent the issuance of a writ of possession. Until
then, it is the ministerial function of the court to grant the possessory
63
writ.
7. Order for i s s u a n c e of Writ is appealable

The wisdom or soundness of the order granting the writ of
possession is a matter of judgment in connection with which the
64
remedy is ordinary appeal.
Certiorari may, however, be allowed particularly when it is
filed within the period to appeal to prevent any possible irreparable
damage to private respondent as against an ordinary appeal which
65
may prove to be tedious and inadequate.
8. Act No. 3135 n o t applicable to chattel mortgage

Where a perusal of the deed signed by the parties, the under-
standing executed by them is a chattel mortgage, as the parties have
so expressly designated, and not a real estate mortgage, specially
when it is considered that the property given as security is a house
of mixed materials which by its very nature is considered as per-
sonal property, it is a mistake for the mortgagee to consider the
transaction in the light of Act No. 3135, as amended by Act 4118 and
request the sheriff to sell it extrajudicially in order to secure full
satisfaction of the indebtedness. Act No. 3135 only covers real estate
mortgages and is intended merely to regulate the extrajudicial sale
of the mortgaged property if and when the mortgagee is given a
special power or express authority to do so in the deed itself or in a
66
document annexed thereto.
9. Administrative Order No. 3 which is a directive for exe-
cutive judges and clerks of courts which under its preliminary
aYulienco v. Courts of Appeals, 393 SCRA 143 (2002); Spouses Pahang v. Vestil,
G.R. No. 148595, July 12, 2004, 434 SCRA 139, citing Manalo v. Court of Appeals, 366
SCRA 572 (2001) and Yulienco v. Court of Appeals, id.
"GSIS v. Court of Appeals, Supra.
6b
Vide GSIS v. Court of Appeals, 266 SCRA 187, January 11, 1997.
^Luna v. Encarnacion, et al., 91 Phil. 531.
"China Banking Corporation v. Court of Appeals, 265 SCRA 327, Dec. 5, 199b.
475
VOL. Ill
paragraph is in line with the responsibility of the Executive Judge

under Administrative Order No. 6 dated June 30, 1975, for the
management of courts within the administrative area does not ap-
ply to a foreclosure with the notary public and cannot prevail over
67
Act No. 3135.
RULE 69
PARTITION
SECTION 1. Complaint in action for partition of real

estate. A p e r s o n h a v i n g t h e right to compel t h e partition of
real e s t a t e m a y do so as p r o v i d e d in t h i s Rule, setting forth
in h i s complaint t h e n a t u r e a n d e x t e n t of his title and an
a d e q u a t e description of t h e real e s t a t e of w h i c h partition is
d e m a n d e d a n d j o i n i n g as defendants all other persons inter-
e s t e d in t h e property, ( l a )
COMMENT:
1. Source of R u l e
2 There is no substantial c h a n g e in this section as

w e l l a s i n t h e s u b s e q u e n t sections.
3. N o t e s And Cases
a. P e r t i n e n t P r o v i s i o n s of t h e Civil Code
Art. 1083. Every co-heir has a right to demand the division of
the estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not exceed
twenty years as provided in Article 494. This power of the testator to
prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership termi-
nates when any of the causes for which partnership is dissolved takes
place, or when he court finds for compelling reasons that division
should be ordered, upon petition of one of the co-heirs.
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned.
477
VOL. Ill
Nevertheless, an agreement to keep the thing undivided for a

certain period of time, not exceeding ten years, shall be valid. This
term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co-heir against
his co-owners or co-heirs so long as he expressly or impliedly recog-
nizes the co-ownership.
It is a basic principle in civil law t h a t before a property owned
in common is actually partitioned, all that the co-owner has is an
ideal or abstract quota or proportionate share in the entire property.
A co-owner has no right to demand a concrete, specific or determi-
nate part of the thing owned in common because until division is
effected his right over the thing is represented only by an ideal
portion.
As such, the only effect of an action brought by a co-owner
against a co-owner will be to obtain recognition of the co-ownership;
the defendant cannot be excluded from a specific portion of the prop-
erty because as a co-owner he has a right to possess and the plaintiff
cannot recover any material or determinate part of the property. Thus,
the courts a quo erred when they ordered the delivery of one-half
1
(1/2) of the building in favor of private respondent.
Partition may be demanded by heirs without prior separate
2
judicial declaration of heirs.
b. Complaint in Action for Partition of Real Estate

An action for partition which is typically brought by a per-
son claiming to be co-owner of a specified property against a defend-
ant or defendants whom the plaintiff recognizes to be co-owners may
be seen to present simultaneously two principal issues. First, there
'Engreso v. Dela Cruz, 401 SCRA217, April 9,2003; See also City of Mandaluyong
v. Aguilar, 350 SCRA 4, 487, Jan. 29, 2001.
2
Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA 345, Dec. 21, 1998.
478
Rule 69 PARTITION
Sec. 1
is the issue of whether the plaintiff is indeed a co-owner of the

property sought to be partitioned. Second, assuming that the plain-
tiff successfully hurdles the first issue, there is the secondary issue
of how the property is to be divided between plaintiff and defend-
ants, i.e., what portion should go to which co-owner.
Should the court find that the defendants do not dispute the
status of the plaintiff as co-owner, the court can forthwith proceed to
the actual partitioning of the property involved. In case the defend-
ants assert in their answer exclusive title in themselves adversely to
the plaintiff, the court should not dismiss the plaintiff's action for
partition but, on the contrary and in the exercise of its general
jurisdiction, resolve the question of whether the plaintiff is co-owner
or not.
Should the trial court find that the plaintiff was unable to sus-
tain his claimed status as co-owner, or t h a t the defendants are or
have become the sole and exclusive owners of the property involved,
the court will necessarily have to dismiss the action for partition.
This result would be reached, not because the wrong action was com-
menced by the plaintiff, but rather because the plaintiff having been
unable to show co-ownership rights in himself, no basis exists for
requiring the defendants to submit to partition the property at stake.
If, on the other hand, the court after trial should find the exist-
ence of co-ownership among the parties litigant, the court may and
should order the partition of the property in the same action. Judg-
ment for one or the other party being on the merits, the losing party
may then appeal the case. In either case, however, it is unnecessary
to require the plaintiff to file another action, separate and independ-
ent from that of partition originally instituted.
Functionally, the action for partition may be seen to be at once
an action for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property involved. This is
the import of our jurisprudence on the matter, and is sustained by
3
the public policy which abhors multiplicity of suits.
3
Roque v. Intermediate Appellate Court, 165 SCRA 118 (1988); Catapusan v.
Court of Appeals, 332 Phil. 586, 264 SCRA 534, 537-538, citing de Mesa v. Court of
Appeals, 231 SCRA 773 (1994) and Fabrica v. Court of Appeals, 146 SCRA 250 (1986),
holding that in actions for partition the Court cannot properly issue an order to divide
the property, unless it first make a determination as to the existence of co-ownership.
479
VOL. Ill
c. Prescription of Action
In a complaint for partition, the plaintiff seeks, first, a declara-
tion that he is a co-owner of the subject properties; and second, the
conveyance of his lawful shares. An action for partition is at once an
action for declaration of co-ownership and for segregation and con-
veyance of a determinate portion of the properties involved. The
question of nullity or validity of the sale as well as the claim for
damages is necessarily and logically intertwined with the partition
case.
To split the proceedings into declaration of nullity of the deed of
sale and trial for the partition case, or to hold in abeyance the
partition case pending resolution of the nullity case would result in
the multiplicity of suits, duplicitous procedure and unnecessary de-
lay, as the lower court observed. The conduct of separate trials of the
parties' respective claims would entail a substantial duplication of
effort and time not only of the parties but also of the courts con-
cerned. On the other hand, it would be in the interest of justice of the
partition court hears all the actions and incidents concerning the
properties subject of the partition in a single and complete proceed-
ing. After all, the issue of nullity can be properly ventilated before
the partition court as a compulsory counterclaim. Thus, even with
the dismissal of the action for nullity, petitioner is not without re-
course. She can still dispute the execution of the deed of absolute
sale and assert her rights to the properties subject of the said instru-
ment in the partition case. There is no need for a separate case to
4
resolve the matter.
The action for partition of the thing owned in common (actio

communi dividendo or actio familias erciscundae) does not prescribe.
In the words of Article 494 of the Civil Code, "each co-owner may
demand at any time the partition of the thing owned in common,
insofar as his share is concerned." No matter how long the co-owner-
ship has lasted, a co-owner can always opt out of the co-ownership,
4
D e Leon v. Del Rosario, 435 SCRA232, July 2 6 , 2 0 0 4 ; See also Dapar v. Biascan,
G.R. No. 141889, September 27, 2004.
480
Rule 69 PARTITION
Sec. 2
they cannot set up as a defense the prescription of action for parti-

5
tion.
But if the defendants show that they have previously asserted
title in themselves adversely to the plaintiff and for the requisite
period of time, the plaintiff's right to require recognition of his sta-
tus as a co-owner has been lost by prescription and the court cannot
issue an order requiring partition.
Article 494 of the Civil Code provides that "no co-owner shall
be obliged to remain in the co-ownership and that each co-owner
may demand at any time the partition of the thing owned in com-
mon, insofar as his share is concerned." It also provides that "no
prescription shall run in favor of a co-owner or co-heirs so long as he
expressly or impliedly recognizes the co-ownership."
While the action for the partition of the thing owned in com-
mon (actio communi dividendo or actio familias erciscundae) does
not prescribe, the co-ownership does not last forever, since it may be
repudiated by a co-owner. In such a case, the action for partition
does not lie. What may be brought by the aggrieved co-owner is an
accion reivindicatoria or action for recovery of title and possession.
That action may be barred by prescription.
If the co-heir or co-owner having possession of the hereditary
or community property, holds the same in his own name, that is,
under claim of exclusive ownership, he may acquire the property by
prescription if his possession meets all the other requirements of the
law, and after the expiration of the prescriptive period, his co-heir or
co-owner may lose their right to demand partition, and their action
6
may then be held to have prescribed.
SEC. 2. Order for partition, and partition by agreement

thereunder. If after t h e trial the court finds that the plain-
tiff h a s the right thereto, it shall order the partition of the
5
A n action to demand partition is imprescriptible or cannot be barred by lacht
Each co-owner may demand at any time the partition of the common property. Deipani
v. CA, 299 SCRA 668 (1998); Santos v. Santos, 342 SCRA 793, October 12, 2000.
8
Roque v. Intermediate Appellate Court, supra; See Capitle v. De Gaban, G.
No. 146890, June 28, 2004.
481
VOL. Ill
real estate among all the parties in interest. Thereupon the

parties may, if they are able to agree, make the partition
among themselves by proper instruments of conveyance, and
the court shall confirm the partition so agreed upon by all
the parties, and such partition, together w i t h the order of
the court confirming the same, shall be recorded in the reg-
istry of deeds of the place in w h i c h the property is situated.
A final order decreeing partition a n d accounting may
be appealed by any party aggrieved thereby. (2a)
COMMENT:
1. Source of Rule
2. No substantial c h a n g e
a. Procedure after j u d g m e n t
After a judgment in an action for partition declaring that the
property in question shall be divided equally among the parties
litigant, the procedure provided for by law thereafter is t h a t if the
parties can agree among themselves then the partition can be made
by the parties by the proper instruments of conveyance which shall
be submitted for approval of the court and such partition with the
court order confirming the same shall be recorded in the Office of the
1
Register of Deeds of the province.
But if the parties are unable to agree upon the partition, the
court shall by order appoint not more than three (3) competent dis-
interested persons as commissioners to make the partition, com-
manding them to set off to plaintiff and to each party-in-interest
such part and proportion of the property as the court in such order
2
shall direct.
^ o n o r i o v. Dunuan, 158 SCRA 515 (1988).

2
Supra; De Mesa v. Court of Appeals, 231 SCRA 773 (1994).
482
Rule 69 PARTITION
Sec. 2
b. Two P h a s e s of Partition and Accounting Suit

Finality of Order of Partition: Order Appealable
The first phase of a partition and/or accounting suit is taken up
with the determination of whether or not a co-ownership in fact
exists, and a partition is proper (i.e., not otherwise legally proscribed)
and may be made by voluntary agreement of all the parties inter-
ested in the property. This phase may end with a declaration that
plaintiff is not entitled to have a partition either because a co-owner-
ship does not exist, or partition is legally prohibited. It may end, on
the other hand, with an adjudgment that a co-ownership does in
truth exist, partition is proper in the premises and an accounting of
rents and profits received by the defendant from the real estate in
question is in order. In the latter case, "the parties may, if they are
able to agree, make partition among themselves by proper instru-
ments of conveyance, and the court shall confirm the partition so
agreed upon." In either case i.e., either the action is dismissed or
partition and/or accounting is decreed the order is a final one, and
may be appealed by any party aggrieved thereby.
The second phase commences when it appears that "the parties
are unable to agree upon the partition" directed by the Court. In
that event partition shall be done for the parties by the Court with
the assistance of not more than three (3) commissioners. This second
stage may well also deal with the rendition of the accounting itself
and its approval by the Court after the parties have been accorded
opportunity to be heard thereon, and an award for the recovery by
the party or parties thereto entitled of their just share in the rents
and profits of the real estate in question." Such an order is, to be
sure, final and appealable.
c. A final order d e c r e e i n g partition and accounting
m a y be appealed by any party aggrieved thereby
The Court h a s settled the question of the finality and
appealability of a decision or order decreeing partition or recovery
of property and/or accounting. In Miranda v. Court of Appeals, de-
cided on June 18, 1976, the Court resolved the question affirma-
tively, and expressly revoked the rulings in Zaldarriaga v. Enriquez
that a decision or order of partition is not final because it leaves
something more to be done in the trial court for the complete dis-
483
VOL. Ill
position of the case, i.e., the appointment of commissioners, the

proceedings for the determination by said commissioners of just
compensation, the submission of their reports, the hearing thereon,
and the approval of the partition and in Fuentebella v. Carrascoso
that a judgment for recovery of property with accounting is not
final, but merely interlocutory and hence not appealable until the
accounting is made and passed upon. As pointed out in Miranda,
imperative considerations of public policy, of sound practice and
adherence to the constitutional mandate of simplified, just, speedy
and inexpensive determination of every action require that judg-
ments for recovery (or partition) of property with accounting be
considered as final judgments, duly appealable.,This, notwithstand-
ing that further proceedings will still have to take place in the
Court, i.e., the accounting will still have to be rendered by the
party required to do so, it will be ventilated and discussed by the
parties, and will eventually be passed upon by the Court. It is of
course entirely possible that the Court's disposition may not sit
well with either the party in whose favor the accounting is made,
or the party rendering it. In either case, the Court's adjudication on
the accounting is without doubt a final one, it would finally termi-
nate the proceedings thereon and leave nothing more to be done by
the Court on the merits of the issue. And it goes without saying
that any party feeling aggrieved by that ultimate action of the Court
on the accounting may seek reversal or modification thereof by the
3
Court of Appeals or the Supreme Court.
4
The Miranda doctrine was reiterated in Valdez v. Bagaso.
d. Partial execution allowed

Thus, in the decision ordering partition, the execution of that
part of the judgment which will not necessitate any further proceed-
ings may be enforced. Further proceedings, such as the appointment
of commissioners to carry out the partition and the rendition and
Municipality of Binan v. Garcia, 180 SCRA 576, December 22, 1989.

4
8 2 SCRA 22; Lagunzad v. Gonzales, 92 SCRA 476; Cease v. CA, 93 SCRA 483;
Macandangdang v. CA, 108 SCRA 314; Hernandez v. CA, 120 SCRA 756; Garbo v. CA,
129 SCRA 616; Fabrica v. CA, 146 SCRA 250; Municipality of Binan v. Garcia, G.R.
No. 69260, December 22,1989, supra; See also Napilan v. Intermediate Appellate Court,
183 SCRA 196, March 14, 1990, reiterating Binan v. Garcia, Supra.
484
Rule 69 PARTITION
Sees. 3-4
approval of the accounting, may be had without prejudice to the

proceedings. It has been held that execution was entirely proper to
enforce the defendant's obligation to render an accounting and to
exact payment of the money value of the plaintiffs' shares in the
personal property and attorney's fee due defendants, as well as the
5
costs of the suit and damages.
An action for partition and accounting under Rule 69, is in the
nature of an action quasi in rem. Such an action is essentially for the
purpose of affecting the defendant's interest in a specific property
6
and not to render a judgment against him.
SEC. 3. Commissioners to make partition when parties

fail to agree. If t h e parties are unable to agree upon the
partition, t h e court shall appoint n o t more t h a n three (3)
c o m p e t e n t a n d d i s i n t e r e s t e d p e r s o n s as commissioners to
m a k e t h e partition, c o m m a n d i n g t h e m to set off to the plain-
tiff a n d to e a c h party in interest s u c h part a n d proportion of
t h e property as t h e court shall direct. (3a)
COMMENT:
1. Source of Rule
SEC. 4. Oath and duties of commissioners. Before mak-

ing s u c h partition, t h e commissioners shall take and sub-
scribe an oath that t h e y will faithfully perform their duties
as commissioners, w h i c h oath shall be filed in court with the
other proceedings in the case. In making the partition, the
commissioners shall v i e w and examine the real estate, after
due notice to the parties to attend at such view and examina-
5
D e Mesa v. Court of Appeals, 231 SCRA 773 (1994). e
Banco Espanol-Filipino v. Palanca, 37 Phil. 921, 928 (1918); See <^* J**
Dizon, 69 Phil. 186, 192 (1939); Valmonte v. Court of Appeals, 252 SCRA 102 (19ybj.
485
VOL. Ill
tion, and shall hear the parties as to their preference in the

portion of the property to be set apart to t h e m and the com-
parative value thereof, and shall set apart the same to the
parties in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements, situation
and quality of the different parts thereof. (4a)
COMMENT:
1. Source of Rule
SEC. 4. Oath and duties of commissioners. No Substantial
Change.
SEC. 5. Assignment or sale of real estate by commission-

ers. When it is m a d e to appear to t h e c o m m i s s i o n e r s that
the real estate, or a portion thereof, c a n n o t be divided with-
out prejudice to t h e interests of t h e parties, t h e court m a y
order it assigned to o n e of t h e parties w i l l i n g to take t h e
same, provided he pays to t h e other parties s u c h a m o u n t s
as the commissioners d e e m equitable, u n l e s s o n e of t h e in-
terested parties asks that t h e property be sold i n s t e a d of
being so assigned, in w h i c h c a s e t h e court shall order t h e
commissioners to sell the real e s t a t e at public sale u n d e r
such conditions a n d w i t h i n s u c h t i m e a s t h e court m a y
determine. (5a)
COMMENT:
1. Source of Rule
SEC. 5. Assignment or sale of real estate by commissioners.
No Substantial Change.
2. Notes and Cases

When it is made to appear to the commissioners that the real
estate, or a portion thereof cannot be divided without great preju-
486
Rule 69 PARTITION
Sec. 6
dice to the interests of the parties, the court may order it assigned to
one of the parties willing to take the same, provided he pays to the
other parties such sum or sums of money as the commissioners
deem suitable, unless one of the parties interested asks that the
property be sold instead of being assigned, in which case the court
shall order the commissioners to sell the real estate at public sale
1
and the commissioners shall sell the same accordingly.
SEC. 6. Report of commissioners. Proceedings not bind-

ing until confirmed. The commissioners shall make a full
a n d accurate report to t h e court of all their proceedings as
to t h e partition, or t h e a s s i g n m e n t of real estate to one of the
parties, or t h e sale of t h e same. U p o n the filing of such re-
port, t h e clerk of court shall serve copies thereof on all the
i n t e r e s t e d parties w i t h n o t i c e that they are allowed ten (10)
days w i t h i n w h i c h to file objections to the findings of the
report, if t h e y so desire. No p r o c e e d i n g h a d before or con-
d u c t e d by t h e c o m m i s s i o n e r s shall pass the title to the prop-
erty or b i n d t h e parties until t h e court shall have accepted
t h e report o f t h e c o m m i s s i o n e r s a n d r e n d e r e d judgment
thereon. (6a)
COMMENT:
1. Source of Rule
SEC. 6. Report of commissioners. Proceedings not binding until
confirmed. - The commissioners shall make full and accurate report
to the court of all their proceedings as to the partition, or the assign-
ment of real estate to one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall serve copies thereof on
all the interested parties with notice that they are allowed ten (10)
days within which to file objections to the findings of the report, if
they so desire. None of the proceedings had before the commissioners
shall be effectual to pass the title to the property or bind the parties
^ o n o r i o v. Dunuan, et al., 158 SCRA 515, March 9, 1988.
487
VOL. Ill
until the court shall have accepted the report of the commissioners
and rendered judgment in accordance with its recommendations.

There is a rewording of the last sentence. "No proceeding had
before or conducted by the commissioners shall pass the title to the
property or bind the parties until the court shall have accepted the
report of the commissioners and rendered judgment thereon."
9
SEC. 7. Action of the court upon commissioners report.
Upon the expiration of t h e period of t e n (10) days referred
to in the preceding section, or e v e n before t h e expiration of
such period but after the i n t e r e s t e d parties h a v e filed their
objections to the report or their statement of agreement there-
with, the court may, u p o n hearing, accept t h e report a n d
render j u d g m e n t in a c c o r d a n c e t h e r e w i t h ; or, for c a u s e
shown, recommit t h e s a m e to t h e c o m m i s s i o n e r s for further
report of facts; or set aside t h e report a n d appoint n e w com-
missioners; or accept t h e report in part a n d reject it in part;
and m a y m a k e s u c h order a n d r e n d e r s u c h j u d g m e n t as shall
effectuate a fair a n d just partition of t h e real estate, or of its
value, if a s s i g n e d or sold as above provided, b e t w e e n t h e
several o w n e r s thereof. (7a)
COMMENT:
1. Source of Rule
SEC. 7. Action of the court upon commissioners' report. No

Substantial Change.
SEC. 8. Accounting for rent and profits in action for par-

tition. In an action for partition in a c c o r d a n c e w i t h this
Rule, a party shall recover from a n o t h e r his j u s t share of
rents and profits received by s u c h other party from the real
estate in question, and t h e j u d g m e n t shall include an allow-
ance for such rents and profits. (8a)
488
Rule 69 PARTITION Sees. 9-11
COMMENT:
1. Source of Rule
Taken from Section 8 of the former Rule SEC. 8. Accounting for
rent and profits in action for partition. No Substantial Change.
SEC. 9. Power of guardian in such proceeding. The

guardian or g u a r d i a n ad litem of a minor or person judi-
cially declared to be i n c o m p e t e n t may, w i t h the approval of
the court first had, do a n d perform on behalf of his ward any
act, matter, or t h i n g r e s p e c t i n g t h e partition of real estate,
w h i c h the m i n o r or p e r s o n judicially declared to be incom-
petent could do in partition p r o c e e d i n g s if he w e r e of age or
competent. (9a)
COMMENT:
1. Source of Rule
Taken from Section 9 of the former Rule which SEC. 9. Power of
guardian in such proceedings. No Substantial Change.
SEC. 10. Costs and expenses to be taxed and collected.

The court shall equitably tax and apportion b e t w e e n or among
the parties the costs a n d e x p e n s e s w h i c h accrue in the ac-
tion, including t h e c o m p e n s a t i o n of t h e commissioners, hav-
ing regard to t h e interests of the parties, and execution may
issue therefor as in other cases. (10a)
COMMENT:
1. Source of Rule
Taken from Section 10 of the former Rule:
SEC. 10. Costs and expenses to be taxed and collected. No
Substantial Change.
SEC. 11. The judgment and its effect, copy to be recorded

with registrar of deeds. If actual partition of property is
made, the judgment shall state definitely, by metes and bounds
489
VOL. Ill
and adequate description, the particular portion of the real

estate assigned to each party, and the effect of the judgment
shall be to vest in each party to the action in severalty the
portion of the real estate assigned to him. If the whole prop-
erty is assigned to one of the parties upon his paying to the
others the sum or sums ordered by the court, the judgment
shall state the fact of such payment and of the assignment of
the real estate to the party m a k i n g the payment, and the
effect of the judgment shall be to vest in the party m a k i n g
the payment the whole of the real estate free from any inter-
est on the part of the other parties to t h e action. If the prop-
erty is sold and the sale confirmed by the court, the judg-
ment shall state the n a m e of the purchaser or purchasers
and a definite description of the parcels of real estate sold to
each purchaser, and the effect of the j u d g m e n t shall be to
vest the real estate in the purchaser or purchasers m a k i n g
the payment or payments, free from t h e claims of any of the
parties to the action. A certified copy of the j u d g m e n t shall in
either case be recorded in the registry of d e e d s of the place
in w h i c h the real estate is situated, a n d t h e e x p e n s e s of s u c h
recording shall be taxed as part of t h e costs of the action.
(11a)
COMMENT:
1. Source of Rule
SEC. 11. The judgment and its effect. Copy to be recorded with
registrar of deeds. No Substantial Change.
SEC. 12. Neither paramount rights nor amicable parti-

tion affected by this Rule. N o t h i n g in this Rule c o n t a i n e d
shall be construed so as to prejudice, defeat, or destroy the
right or title of any person claiming the real e s t a t e involved
by title under any other person, or by title paramount to t h e
title of the parties a m o n g w h o m the partition m a y h a v e b e e n
made; nor so as to restrict or p r e v e n t persons holding real
estate jointly or in c o m m o n from m a k i n g an amicable parti-
tion thereof by agreement and suitable instruments of con-
veyance without recourse to an action. (12a)
490
Rule 69 PARTITION Sec. 13
COMMENT:
1. Source of Rule
SEC. 12. Neither paramount rights nor amicable partition af-
fected by this rule. No Substantial Change.
a. The judgment in this action for partition is res judicata
only on the parties thereto and their successors-in-interest. (Feria)
b. Where during the pendency of an action for partition of a
parcel of unregistered land, one of the co-owners surreptitiously
applied for the registration of the entire parcel under the Torrens
system in his name only, without notice to the other co-owner, and
upon obtaining title, sold the entire lot to a stranger to the action,
the judgment for partition in the pending case does not bind the
1
vendee.
c. When a case is commenced involving any right to lands
registered under the Land Registration Law, any decision therein
will bind the parties only, unless a notice of the pendency of the
action is registered on the title of the land, in order to bind the whole
2
world as well.
SEC. 13. Partition of personal property. The provi-

sions of this Rule shall apply to partitions of estates com-
p o s e d of personal property, or of both real and personal prop-
erty, in so far as the s a m e m a y be applicable. (13)
COMMENT:
1. Source of Rule
SEC. 13. Partition of personal property. - No Change.
^ c h a n and Sons Realty Corp. v. Canada, 165 SCRA 207 (1988).

Hbid.
491
RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
SECTION 1. Who may institute proceedings, and when.

Subject to the provisions of the next s u c c e e d i n g section, a
person deprived of t h e p o s s e s s i o n of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other p e r s o n against w h o m t h e posses-
sion of any land or building is unlawfully w i t h h e l d after t h e
expiration or termination of t h e right to h o l d possession, by
virtue of any contract, e x p r e s s or implied, or t h e legal repre-
sentatives or assigns of any s u c h lessor, vendor, v e n d e e , or
other person, may, at any time w i t h i n o n e (1) year after s u c h
unlawful deprivation or w i t h h o l d i n g of possession, bring an
action in the proper Municipal Trial Court against t h e per-
son or persons unlawfully w i t h h o l d i n g or d e p r i v i n g of pos-
session, or any p e r s o n or p e r s o n s claiming u n d e r them, for
the restitution of s u c h possession, t o g e t h e r w i t h d a m a g e s
and costs, (la)
COMMENT:
"Landlord" was replaced with "lessor" and "inferior court" with
"municipal trial court."
The provision that the complaint must be verified, was deleted
and transferred to Section 4 of the rule which requires all pleadings
to be verified.
The provision in the former rule that it shall not apply to cases
covered by the Agricultural Tenancy Act, was deleted. This is al-
ready provided for by the Comprehensive Agrarian Reform Law of
492
Rule 70 FORCIBLE ENTRY A N D UNLAWFUL DETAINER Sec. 1
1988 which vests the DAR with primary jurisdiction over agrarian
disputes.
The word landlord in the original rule is changed to "lessor"
inasmuch as the rule does not apply to agricultural tenancy cases.
(Feria)
a. Any of the co-owner may bring an action for forcible entry
1
or unlawful detainer;
b. Three (3) Kinds of possessory actions of real property

There are three (3) kinds of possessory actions involving real
property, viz.:
(1) Accion interdictal is the summary action for Forcible en-
try and detainer which seeks the recovery of physical possession only
2
and is brought within one (1) year in the justice of the peace court;
(2) Accion Publiciana is recovery of the right to possess and
is a plenary action in an ordinary civil proceeding in a Regional Trial
3
Court; and
(3) Accion de Reivindicacion seeks the recovery of ownership
(which of course includes jus utendi and jus fruendi) also brought in
4
the Regional Trial Court.
5
The Supreme Court in Banayos v. Susana Realty, Inc., ex-
plained the distinction between the foregoing actions very well as
follows:
We deem it advisable at this point, to reiterate the essential
differences between three kinds of actions for the recovery of posses-
sion of real property, namely: (1) the summary action for forcible
entry and unlawful detainer; (2) the accion publiciana; and (3) the
accion de reivindicacion.
1
Art. 487, N.C.C.; Limpin v. IAC, 166 SCRA 87.
2
Reyes v. Sta. Maria, 91 SCRA 164.
3
Reyes v. Sta Maria, supra.
4
R e y e s v. Sta. Maria, supra.
5
7 1 SCRA 557, cited in Toyota Motor Philippines Corporation v. Court of Ap-
peals, 216 SCRA 236, December 7 , 1 9 9 2 .
493
VOL. Ill
The action for forcible entry may be brought where disposses-

sion of real property had taken place by any of the means provided
for in Section 1, of Rule 70 of the Revised Rules of Court, and in the
case of unlawful detainer, where the possession is withheld after the
expiration or termination of the right to hold possession, by virtue of
any contract express or implied. These two actions must be filed
within one (1) year after such unlawful deprivation or withholding
of possession with the municipal or city court. These actions in their
essence are mere quieting processes by virtue of which a party in
possession of land may not be by force, dispossessed in a summary
manner, until the right of ownership can be tried in due course of
law. They are, therefore, intended to provide an expeditious means
of protecting actual possession or right to possession of property. The
aforesaid Rule 70 does not, however, cover all of the cases of dispos-
session of lands. Thus, "whenever the owner is dispossessed by any
other means than those mentioned he may maintain his action in
the Court of First Instance, and it is not necessary for him to wait
until the expiration of twelve months before commencing an action
6
to be repossessed or declared to be owner of the land." Courts of
First Instance have jurisdiction over actions to recover possession of
real property illegally detained, together with rents due and dam-
ages, even though one (1) year has not expired from the beginning of
such illegal detention, provided the question of ownership of such
property is also involved. In other words, if the party illegally dis-
possessed desires to raise the question of illegal dispossession as
well as that of the ownership over the property, he may commence
such action in the Court of First Instance immediately or at any
time after such illegal dispossession. If he decides to raise the ques-
tion of illegal dispossession only, and the action is filed more than
one (1) year after such deprivation or withholding of possession,
then the Court of First Instance will have original jurisdiction over
7
the case. The former is an accion de reivindicacion which seeks the
recovery of ownership as well as possession, while the latter refers
to an accion publiciana, which is the recovery of the right to possess
6
Gumiran v. Gumiran, 21 Phil. 1 7 4 , 1 7 9 ; Cf. Medina, et al. v. Valdellon, 63 SCRA
278.
7
Bishop of Cebu v. Mangaron, 6 Phil. 286; Catholic Church v. Tarlac and Victo-
ria, 9 Phil. 450; Ledesma v. Marcos, 9 Phil. 618; Medina, et al. v. Valdellon, supra.
494
and is a plenary action in an ordinary proceeding in the Court of

8
First Instance.
As further elucidated in another case, an unlawful detainer
suit (option interdictal) together with forcible entry are the two
forms of an ejectment suit that may be filed to recover possession of
real property. Aside from the summary action of ejectment, accion
publiciana or the plenary action to recover the right of possession
and accion reivindicatoria or the action to recover ownership which
includes recovery of possession, make up the three kinds of actions
9
to judicially recover possession.
Illegal detainer consists in withholding by a person from an-
other of the possession of a land or building to which the latter is
entitled after the expiration or termination of the former's right to
10
hold possession by virtue of a contract, express or implied. An
ejectment suit is brought before the proper inferior court to recover
physical possession only or possession de facto and not possession de
jure, where dispossession has lasted for not more than one year.
Forcible entry and unlawful detainer are quieting processes and the
one-year time bar to the suit is in pursuance of the summary nature
11
of the action. The use of summary procedure in ejectment cases is
intended to provide an expeditious means of protecting actual pos-
session or right to possession of the property. They are not processes
to determine the actual title to an estate. If at all, inferior courts are
empowered to rule on the question of ownership raised by the de-
12
fendant in such suits, only to resolve the issue of possession. Its
determination on the ownership issue is, however, not conclusive.
Accion publiciana is the plenary action to recover the right of
possession when dispossession has lasted for more than one year or
8
Sec. 88, Rep. Act No. 296, Rule 70, Rules of Court; Manila Railroad Co. v. Attor-
ney General, 20 Phil. 523; Lim Cay v. Del, 55 Phil. 692; Central Azucarera de Tarlac v.
De Leon, 56 Phil. 169; Navarro v. Aguila, 66 Phil. 604; Luna v. Carandang, 26 SCRA
306; Medina, et al. v. Valdellon, supra; Pasaqui, et al. v. Villablanca, et al., supra; Vide
de Leon v. Court of Appeals, 245 SCRA 166, June 19, 1995.
9
Reyes v. Sta. Maria, 91 SCRA 164, June 29, 1979.
10
Rule 70, Sec. 1, Revised Rules of Court; Tenorio v. Gomba, 81 Phil. 54; Dikit v.
Icasiano, 89 Phil. 44.
"Monteblanco v. Hinigaran Sugar Plantation, 63 Phil. 797; Sarona v. Villegas,
22 SCRA 1256, March 27, 1968.
"Judiciary Reorganization Act of 1980, B.P. Big. 129, Sec. 33.
495
VOL. Ill
when dispossession was effected by means other than those men-

tioned in Section 1, Rule 70. Under these circumstances, a plenary
13 14
action may be brought before the regional trial court.
Accion reivindicatoria, which is an action to recover ownership,
including the recovery of possession, should also be filed in the re-
16
gional trial court.
2.a Modification of Principle by RA No. 7691

The foregoing pronouncements may be deemed to have been
modified by Republic Act 7691 expanding the jurisdiction of the
municipal trial courts, which are now vested with exclusive original
jurisdiction over other real actions where the assessed value does
not exceed twenty thousand pesos, and fifty thousand pesos, in Metro
Manila. In other words, the first level courts now has exclusive
original jurisdiction in accion publiciana and accion reivindicatoria,
where the assessed value of the real property does not exceed the
16
aforestated amounts.
3. Action Include Public Lands

This includes possessory actions involving public lands. The
Regional Trial Court, is however, without jurisdiction over questions
affecting title to public lands, as this falls under the jurisdictions of
the Bureau of Lands. The court's jurisdiction is limited to possessory
actions, not involving directly or indirectly alienation and disposi-
tions, such as cases of forcible entry and accion publiciana, not
17
illegal possession.
Thus, a case for recovery of possession/ownership over a parcel
of public land may be filed with the regular courts even if a sales
application for said parcel is pending adjudication before the Bureau
of Lands. The authority given the Director of Lands to dispose of
public lands does not divest the regular courts of their jurisdiction
13
Gumira v. Gumiran, 21 Phil. 174; Medina v. Valdellon, 63 SCRA 279, March
25, 1975.
14
Aguilon v. Bohol, 79 SCRA 482, October 20, 1977.
15
Jalbuena de Leon v. Court of Appeals, 245 SCRA 166, June 1 9 , 1 9 9 5 .
16
Sec. 3, R.A. 7691, amending Section 33 of BP Big. 129.
"People of the Philippines v. Pareja, 189 SCRA 143, August 30, 1990.
496
over possessory actions instituted by applicants to protect their pos-

18
session.
4. Who m a y file action
A. In Forcible Entry
The person deprived of possession by force, intimidation, threat,
19
strategy or stealth.
B. In Unlawful Detainer
1. The landlord, vendor or vendee or other person against
whom possession of land or building is unlawfully withheld. Under
Art. 487, New Civil Code any one of the co-owners, after the
expiration or termination of right to hold possession by virtue of
20
contract.
2. The legal representative or assignee of any landlord, ven-
dor, vendee or other person.
A Purchaser who has consolidated title may file an ejectment
case or writ of possession even if there is a pending action for annul-
21
ment of mortgage or foreclosure.
A vendor is authorized to institute the action for ejectment and
the right to send notices of termination of the lease agreement and
to vacate. The right to send the notices is rooted in the right to file
22
the court action.
A sublessee, however, can invoke no right superior to that of
his sublessor. The sublessees' right, if any, is to demand reparation
for damages from his sublessor, should the latter be at fault. The
sublessees can only assert such right of possession as could have
been granted them by their sublessor, their right of possession de-
18
Solis v. Court of Appeals, 198 SCRA 267, June 19, 1991; Vide Note 36, infra,
p. 297.
ls
See also Article 539 of the Civil Code Any possessor disturbed in his posses-
sion.
20
Commander Realty, Inc. v. Court of Appeals, 161 SCRA 264, 9 May 1988.
21
Javelosa v. Court of Appeals, December 10, 1996, 265 SCRA 493. Apostol v.
Court of Appeals, 432 SCRA 351, June 17, 2004, holding registered owners are enti-
tled to possession. The issue of the validity of the title of the respondents can only be
assailed in an action expressly instituted for that purpose.
22
Eulogio "Eugui" Lo Chua v. Court of Appeals, 356 SCRA 753, April 19, 2001.
497
VOL. Ill
pending entirely upon that of the latter. Where the lessor and real
owner of the property manifested objections to the improvements
introduced by petitioners and the subsequent termination of the
lease contract between the lessor-owner and the lessee-sublessor,
petitioners, being mere sublessees, are not in a position to assert
23
any right to remain on the land.
5. Against w h o m
The action may be filed against persons unlawfully withhold-
ing or depriving possession or any person claiming under them.
The action may be filed against any person who is in legal
possession of the leased lot, such as one who is acting on behalf of
24
the sub-lessee.
6. Nature of P r o c e e d i n g s in Accion Interdictal

Ejectment cases are summary proceedings intended to provide
an expeditious means of protecting actual possession or right to
possession of property. Title is not involved. That is why it is a
special civil action with a special procedure. Technicalities should
25
carefully be avoided.
7. Philosophy u n d e r l y i n g r e m e d y
In affording this remedy of restitution, the statute seeks to
prevent breaches of the peace and criminal disorder x x x to compel
the party out of possession to respect and resort to the law alone to
26
obtain what he claims is his.
The owners of a property have no authority to use force and
violence to eject alleged usurpers who were in prior physical posses-
sion of it. They must file the appropriate action in court and should
27
not take the law in their own hands.
23
S h i n and Chung H w a Kyoon v. Court of Appeals, 351 SCRA 257, Feb. 6, 2 0 0 1 .
"Juarez v. Court of Appeals, 214 SCRA475 (1992), compare Co Tiac v. Natividad,
80 Phil. 127, Note 32, infra.
25
Guballa v. Court of Appeals, 168 SCRA 518 (1988); See also Rural Bank of Sta.
Ignacia v. Dimatula, 401 SCRA 742, April 29, 2003.
26
Pitargue v. Sorilla, 92 Phil. 5, Sept. 17, 1952; Joven v. Court of Appeals, 212
SCRA 700 (1992); Vide de Leon v. Court of Appeals, 245 SCRA 166, J u n e 19, 1995.
"Heirs of Pedro Laurora v. Sterling Technopark III, G.R. No. 1 4 6 8 1 5 , 4 0 1 SCRA
181, April 9, 2003.
498
7.a The Rule on Liberal Interpretation
In forcible entry and detainer cases, which are summary in

nature to minimize disturbance of the social order, procedural tech-
nicalities should be carefully avoided and should not be allowed to
override substantial justice. The interest of substantial justice is
best served if both parties in a case are heard and their respective
claims through their respective pleadings and position papers a lib-
eral interpretation of technical rules, which does not subvert the
nature of the Rule on Summary Procedure nor defeat its objective of
28
expediting adjudication of suits is not disfavored by the court.
8. Distinction B e t w e e n Forcible Entry a n d Unlawful

Detainer
29
In Munoz v. Court of Appeals. The summary actions for un-
lawful detainer and forcible entry as distinguished from each other,
were reiterated by the Supreme Court, as follows:
"a. In forcible entry, the possession of the land by the defend-
ant is unlawful from the beginning as he acquires possession thereof
by force, intimidation, threat, strategy or stealth; while in unlawful
detainer, the possession of the defendant is inceptively lawful but it
becomes illegal by reason of the termination of his right to the pos-
30
session of the property under the contract with the plaintiff.
"b. In forcible entry the law does not require a previous de-
mand for the defendant to vacate the premises; but in unlawful
detainer the plaintiff must first make such demand, which is juris-
31
dictional in nature.
The fact that a demand to vacate is made does not change the
nature of defendant's possession and convert the owner's action into
unlawful detainer.
"c. In forcible entry, the plaintiff must prove that he was in
prior physical possession of the premises until he was deprived thereof
28
Rural Bank of Sta. Ignacias v. Dimatulac, G.R. No. 142015, April 29, 2003.
29
2 1 4 SCRA 216 (1992).
30
D i k i t v. Icasiano, 89 Phil. 44.
31
Sec. 2; Medel v. Militante, 41 Phil. 44.
499
VOL. I l l
by the defendant; in unlawful detainer, the plaintiff need not have

32
been in prior physical possession.
"d. In forcible entry, the one-year period is generally counted
from the date of actual entry on the land; in unlawful detainer, from
33 34
the date of last demand or last letter of demand.
An action to quiet title is different from Forcible entry and
35
Unlawful Detainer.
In forcible entry, the possession by the defendant is unlawful
ab initio because he acquires possession by force, intimidation, threat,
strategy, or stealth, while in unlawful detainer, possession is origi-
nally lawful but becomes illegal by reason of the termination of his
right of possession under his contract with the plaintiff. In pleadings
filed in courts of special jurisdiction, the special facts giving the
court jurisdiction must be specially alleged and set out. Otherwise,
the complaint is demurrable.
Hence, in actions for forcible entry, two allegations are manda-
tory for the municipal court to acquire jurisdiction:
First, the plaintiff must allege his prior physical possession of
the property.
Second, he must also allege that he was deprived of his posses-
sion by any of the means provided for in Section 1, Rule 70 of the
Rules of Court, namely: force, intimidation, threats, strategy, and
stealth.
Where he complaints failed to allege prior physical possession
of the property and all that is alleged is unlawful deprivation of
their possession by private respondents, the deficiency is fatal to
32
M a d d a m u v. Judge, 74 Phil. 230; Aguilar v. Cabrera, 74 Phil. 666; Banayos v.
Susana Realty, Inc., 71 SCRA 557, June 30,1976; Pharma Industries, Inc. v. Pajarillaga,
et al., 100 SCRA 339, Oct. 17, 1980.
33
Sarona, et al. v. Villegas, et al., G.R. No. L - 2 2 9 8 4 , 22 SCRA 1257, March 27,
1968.
34
D B P v. Canonoy, 35 SCRA 197, Sept. 3 0 , 1 9 7 0 ; Calubayan v. Pascual, 21 SCRA
146, Sept. 18, 1967; Racaza v. Susana Realty, Inc., 18 SCRA 1172, Dec. 22, 1966;
REGALADO, FLORENZ D., REMEDIAL LAW COMPENDIUM, Vol. 1, 5 t h Revised Edition, pp. 5 0 3 -
504; De Guzman v. Court of Appeals, 271 SCRA 728 (1997).
35
Quimpo v. De la Victoria, 46 SCRA 139.
500
petitioners' actions before the Metropolitan Trial Court. Such bare

36
allegation is insufficient for the MeTC to acquire jurisdiction.
Where, however, the cause of action is unlawful detainer, prior
possession is not always a condition sine qua non. A complaint for
unlawful detainer should be distinguished from that of forcible en-
try. In forcible entry, the plaintiff has prior possession of the prop-
erty and he is deprived thereof by the defendant through force,
intimidation, threat, strategy or stealth. In an unlawful detainer,
the defendant unlawfully withholds possession of the property after
the expiration or termination of his right thereto under any con-
tract, express or implied, hence, prior physical possession is not
required. This is especially so where a vendee seeks to obtain pos-
session of the thing sold. In the case of Pharma Industries, Inc. v.
31
Pajarillaga, a deed of sale with right to repurchase was executed
over a parcel of land. When the vendor failed to repurchase the
same, title was consolidated in favor of Pharma Industries. The
Court ruled t h a t P h a r m a Industries acquired possession of the prop-
erty upon failure of the vendor a retro to repurchase the same and
consequently, the vendor's right to possess the property had ceased
to be lawful. In ejectment cases, therefore, possession of land does
not only mean actual or physical possession or occupation but also
includes the subjection of the thing to the action of one's will or by
the proper acts and legal formalities established for acquiring such
38
right, such as the execution of a deed of sale over a property.
9. Jurisdiction
Metropolitan Trial Courts, Municipal Trial Courts and Munici-
pal Circuit Trial Courts have exclusive jurisdiction over cases of
39
forcible entry and unlawful detainer, regardless of the amount of
rentals and damages.
Section 33(2) of Batas Pambansa Big. 129, prescribes the juris-
diction of inferior courts in forcible entry and unlawful detainer
cases as follows:
36
Tirona v. Hon. Floro P. Alejo, 367 SCRA 17, October 10, 2001.
37
Ibid., See also Varona v. CA, 428 SCRA 577, May 20, 2004.
38
Rosanna B. Barba v. Court of Appeals, 376 SCRA 210, February 6, 2002.
39
Sec. 33(2), BP Big. 129.
501
VOL. Ill
"Sec. 33. Jurisdiction of Metropolitan Trial Courts, Mu-

nicipal Trial Courts and Municipal Circuit Trial Courts in Civil
Cases. Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall exercise:
(2) Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer; Provided, That when in such cases,
the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without de-
ciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession."
The 1983 Rule on Summary Procedure, Section 1 of which
originally conferred on inferior courts jurisdiction to try in summary
proceedings cases of forcible entry and unlawful detainer except
where the question of ownership was involved or where the damages
or unpaid rentals sought to be recovered exceeded P20,000.00 at the
time of the filing of the complaint, was later revised by a resolution
of the Court En Banc which took effect on November 15, 1991. All
forcible entry and unlawful detainer cases have then to be tried
pursuant to the Revised Rule on Summary Procedure regardless of
whether or not the issue of ownership of the subject property is
40
alleged by a party.
The provisions of the Rule on Summary Procedure on all forci-
ble entry and unlawful detainer cases are now governed by Section
41
3, Rule 70 of the 1997 Rules of Civil Procedure.
10. How is J u r i s d i c t i o n Determined?

It is axiomatic that what determines the nature of an action as
well as which court has jurisdiction over it are the allegations of the
42
complaint and the character of the relief sought. Accordingly, where
the case is for forcible entry, it should normally come under the
43
jurisdiction of the municipal court, before which it was in fact filed.
"Section 1(A), Revised Rule on Summary Procedure.

41
A s s e t Privatization Trust v. Court of Appeals, et al., 229 SCRA 627, February
3, 1994.
42
Caniza v. Court of Appeals, 268 SCRA 640, February 24, 1997; Vide Times
Broadcasting Network v. Court of Appeals, 274 SCRA 366, J u n e 19, 1997.
43
C h i n g v. Malaya, 153 SCRA 412; Isidro v. Court of Appeals, 228 SCRA 503
(1994); Garcia v. Court of Appeals, 220 SCRA 264, March 22, 1993; Herrera, et al. v.
Ballos, et al., 374 SCRA 107, January 18, 2002.
502
Jurisdiction is determined by the nature of the action set forth

44 46
in the complaint. Mere assertion of ownership by the defendant or
46
of tenancy relationship does not oust the court of its jurisdiction.
11. The Issue O w n e r s h i p in Ejectment Cases

a. General Rule
a.l Issue of o w n e r s h i p is u n e s s e n t i a l
(1) In an action for unlawful detainer, the question of posses-
sion is primordial while the issue of ownership is generally unessen-
tial. The long settled rule is t h a t the issue of ownership should be
raised by the affected party in an appropriate action for a certificate
of title cannot be the subject of a collateral attack. Apropros is the
rulings in Tui v. Court of Appeals, to wit:
"The fact of lease having been admitted by the private
respondent as well as the expiration of the term thereof there
can be no question that the issue of ownership is foreign to the
action. Indeed, it matters not that private respondent was al-
ready an occupant of the leased premises when he executed
and signed the contract of lease, because the basis of the
ejectment suit is the very contract of lease. Private respondent
cannot now be heard to impugn what he had previously admit-
ted, which includes that petitioner is the owner of the premises.
Neither can he confuse the issue by raising the question of title
to defeat the right of petitioner to the possession of the premises
47
and to eject him therefrom."
b. Assertion of o w n e r s h i p by defendant immaterial to

jurisdiction
Mere assertion of ownership by the defendant in an ejectment
case will not therefore oust the municipal court of its summary
**Nueva Vizcaya Chambers of Commerce v. Court of Appeals, 97 SCRA 853;

Ching v. Malaya, 153 SCRA 412; Vide Sarmiento v. Court of Appeals, G.R. No. 116192,
250 SCRA 108, November 1 6 , 1 9 9 5 ; Javelosa v. Court of Appeals, G.R. No. 124292,265
SCRA493, December 1 0 , 1 9 9 6 ; . Lopez v. David, G.R. No. 152145, March 20, 2004,426
SCRA 535.
a
Supra.
"Isidro v. Court of Appeals, 228 SCRA 503 (1993).
47
F i g e v. Court of Appeals, 233 SCRA 586 (1994); See also Co v. Militar, January
29, 2004, 421 SCRA 455 on right to possession and registered owner.
503
VOL. Ill
jurisdiction. This has to be so, for were the principle otherwise, the
ends of justice would be frustrated by making the efficacy of this
48
kind of actions depend upon the defendant in all cases.
Even if the defendant in a detainer or forcible entry case al-
leges title to the property in his answer, the Municipal Trial Court or
the Court of First Instance on appeal will not be divested of its
49
jurisdiction by such allegations alone.
c. Lessee is Not Permitted to D e n y Lessor's Title

Payment of his rentals is recognition of the petitioner's owner-
ship of the property. As lessee, respondent is not permitted to deny
50
the title of his landlord much less claim title in himself. Therefore,
neither should his suit to annul petitioner's title be allowed to pre-
empt the latter's recourse to the summary action of ejectment as a
51
means to regain possession of its property.
c.l Effect of filing a c t i o n for o w n e r s h i p

The filing of an action for reconveyance of title over the same
property or for annulment of the deed of sale over the land does not
divest the Municipal Trial Court of its jurisdiction to try the forcible
48
C h i n g v. Malaya, supra.
49
Ibid.; Tui v. Court of Appeals, 37 SCRA 99 (1971), cited in Fehr v. Court of
Appeals, 293 SCRA 586 (1994); See also Balanon-Anicete v. Balanon, 4 0 2 SCRA 514,
April 30, 2003, been held that: Where the principal issue is one of interpretation,
enforcement and/or rescission of the contract, proof of violation of the provisions of the
contact is a condition precedent to resolution or rescission. The contract can be de-
clared rescinded only w h e n its nature h a s been clarified and the eventual violation
thereof, if any, has been established a matter that is beyond the jurisdiction of the
MTC to hear and determine. Thus, the proper action should be rescission and not
illegal detainer Villena v. Chavez, G.R. No. 148126, November 10, 2003, 415 SCRA 33;
see also De La Rosa v. Carlos, G.R. No. 147549, October 23, 2003, 4 1 4 SCRA 226: The
validity of Deed of Sale cannot be challenged in an ejectment case because ejectment
cases proceed independently of any claim of ownership; See also Ten Forty Realty and
Development Corporation v. Cruz, G.R. No. 151212, September 10, 2003, 410 SCRA
484; Barba v. Court of Appeals, G.R. No. 1266638, February 6, 2002, 216 SCRA 210:
Compare The validity of Deed of Sale cannot be challenged in an ejectment case be-
cause ejectment cases proceed independently of any claim of ownership. See also Ru-
ral Bank of Sta. Ana v. Dimatulac, 401 SCRA 742, April 29, 2003, Note 26, infra.
^Sec. 3(b), Rule 131, Rules of Court; Reyes v. Villaflor, 2 SCRA 247.
"Philippine Feeds Milling v. Court of Appeals, 174 SCRA 108, June 14, 1989.
504
52
entry or unlawful detainer cases before it. This is so, because, while
there may be identity of parties and subject matter in the forcible
entry case and the suit for annulment of title and/or reconveyance
53
the rights asserted and the relief prayed for are not the same. The
respondents in ejectment proceedings cannot defeat the summary
nature of the action against them by simply filing an action ques-
tioning the ownership of the person who is trying to eject them from
54
the premises.
Where the ejectment complaint sufficiently averred that the
plaintiff owns the property and seeks to recover possession from the
overstaying lessee, the Metropolitan Trial Court had jurisdiction
55
over the case. The lessee's assertion of ownership in the ejectment
case does not oust the municipal court from its jurisdiction over the
case, for its jurisdiction is determined by the allegations of the com-
56
plaint, not by the defenses in the answer.
In ejectment cases, the defendant may not divest the inferior
court of its jurisdiction by merely claiming ownership of the prop-
57
erty involved.
c.2 Ejectment Case Not Abated by Action for Owner-

ship
In characteristic fashion, Chief Justice Narvasa in Wilson Auto
58
Supply Corp. u. Court of Appeals, outlined the precedents holding
that an ejectment case may not be abated simply because of pending
cases in the RTC based on right of pre-emption or prior purchase, as
follows:
52
D e la Cruz v. Court of Appeals, 133 SCRA 520 (1984); Drilon v. Gaurana, 149
SCRA 342 (1987); Ang Ping v. Regional Trial Court of Manila, Br. 40, 154 SCRA 77
(1987); Sen Po Marketing Corp. v. Court of Appeals, 212 SCRA 154 (1992).
53
Drilon v. Gaurana, Supra.
54
D a n t e and Palomar v. Sison, 174 SCRA517 (1989); See also Galgala v. Benguet
Consolidated, 177 SCRA 288 (1989); Guzman v. Court of Appeals, 177 SCRA 604 (1989);
Spouses Balanon-Anicete v. Balanon, Supra.
55
L u c a s Caparros v. Court of Appeals, 170 SCRA 758 (1989), citing Alvir v. Vera,
130 SCRA 357.
56
Ramirez v. Chit, 21 SCRA 1364, Dec. 26, 1967.
"Dehesa v. Macalalag, 81 SCRA 543; Nogoy v. Mendozas, Jr., 101 SCRA 203.
68
2 0 8 SCRA 108 (1992).
505
VOL. Ill
As the crucial question, at bottom, is whether or not Star Group's

unlawful detainer suits in the Municipal Trial Court against peti-
tioner lessees for the reason that their leases had expired, should be
abated by the actions filed in the Regional Trial Court by said peti-
tioner lessees based on the contention that they are entitled to a
right of pre-emption or prior purchase of the leased premises. It is a
question that is far from novel, one that has been passed upon and
resolved by this Court in numerous cases, and one to which a nega-
tive answer has invariably been given. The relevant precedents are
hereunder outlined.
(a) Injunction suits instituted in the RTC by defendants in
ejectment actions in the municipal trial courts or other courts of the
59
first level do not abate the latter; and neither do proceedings on
60
consignation of rentals.
(b) An "accion publiciana" does not suspend an ejectment
61
suit against the plaintiff in the former.
(c) A "writ of possession case" where ownership is concededly
the principal issue before the Regional Trial Court does not preclude
nor bar the execution of the judgment in an unlawful detainer suit
where the only issue involved is the material possession or posses-
62
sion de facto of the premises.
(d) An action for quieting of title to property is not a bar to an
63
ejectment suit involving the same property.
(e) Suits for specific performance with damages do not affect
64
ejectment actions (e.g., to compel renewal of a lease contract).
(f) An action for reformation of instrument (e.g., from deed of
absolute sale to one of sale with pacto de retro) does not suspend an
65
ejectment suit between the same parties.
59
Nacorda v. Yatco, 17 SCRA 920 (1966).
60
L i m Si v. Lim, 98 Phil. 868 (1956), citing Pue, et al. v. Gonzales, 87 Phil. 81
(1950).
"Ramirez v. Bleza, 106 SCRA 187 (1981).
62
H e i r s of F. Guballa, Sr. v. Court of Appeals, et al., etc., 168 SCRA 518 (1988).
^Quimpo v. de la Victoria, 46 SCRA 139 (1972).
"Desamito v. Cuyegkeng, 18 SCRA 1184 (1966); Pardo de Tavera v. Encarnacion,
22 SCRA 632 (1968); Rosales v. CFI, 154 SCRA 153 (1987); Commander Realty, Inc. v.
Court of Appeals, 161 SCRA 264 (1988).
65
J u d i t h v. Abragan, 66 SCRA 600 (1975).
506
(g) An action for reconveyance of property or "accion reivindi-

catoria" also has no effect on ejectment suits regarding the same
66
property.
The pendency of an action questioning the ownership of the
property does not bar the filing or consideration of an ejectment suit
67
nor the execution of the judgment therein.
(h) Neither do suits for annulment of sale, or title, or docu-
ment affecting property operate to abate ejectment actions respect-
68
ing the same property.
The underlying reasons for the above rulings were that the
actions in the Regional Trial Court did not involve physical or de
facto possession, and, on not a few occasions, that the case in the
Regional Trial Court was merely a ploy to delay disposition of the
ejectment proceeding, or t h a t the issues presented in the former
could quite as easily be set up as defenses in the ejectment action
and there resolved.
69
In Leopoldo Sy v. Court of Appeals, et al., for instance, the
following pronouncements were made:
"Private respondents insist that the Rule on Summary Proce-
dure does not apply since there is a question of ownership involved
albeit in another case pending in another court, that is, the afore-
said Civil Case No. 88-47264 in the Regional Trial Court of Manila.
We apprehend that if this theory is adopted, the applicability of the
66
D e l Rosario v. Jimenez, 8 SCRA 549 (1963); Salinas v. Navarro, 126 SCRA
167; De la Cruz v. Court of Appeals, 133 SCRA 520 (1984); Drilon v. Gaurana, 149
SCRA 352 (1987); Ching v. Malaya, 153 SCRA 412 (1987); Philippine Feeds Milling
Co., Inc. v. Court of Appeals, 174 SCRA 108; Dante v. Sison, 174 SCRA 517 (1989);
Guzman v. Court of Appeals (annulment of sale and reconveyance), 177 SCRA 604
(1989); Demamay v. Court of Appeals, 186 SCRA 608 (1990); Leopoldo Sy v. Court of
Appeals, et al. (annulment of sale and reconveyance), 200 SCRA 177, Aug. 2, 1991.
67
Wilfredo Silverio, Ernesto Del Castillo v. Court of Appeals, 407 SCRA 240,
July 24, 2003, J. Corona.
^Salinas v. Navarro (annulment of deed of sale with assumption of mortgage
and/or to declare the same an equitable mortgage), 126 SCRA 167 (1983); Ang Ping v.
RTC (annulment of title), 170 SCRA 758 (1989); Dante v. Sison (annulment of sale
with damages), 174 SCRA 517; Galgala v. Benguet Consolidated, Inc. (annulment of
document), 177 SCRA 288 (1989).
M
2 0 0 SCRA 117, August 2, 1991.
507
VOL. Ill
Rule on Summary Procedure in ejectment cases could easily be

thwarted by the defendant through the simple expedient of filing an
action in the regional trial court contesting the plaintiff's ownership
over the property from which defendant is sought to be evicted.
Hence, the obvious intimation of private respondents that the regu-
lar procedure, and not the summary procedure, should be followed
x x x does not impress us as being endowed with legal or logical
support.
"x X X
"Thus, the fact that the tenant had previously filed a separate
action in the former Court of First Instance involving the ownership
of the land is not a valid reason to frustrate the summary remedy of
ejectment. Such action filed by the tenant only lends credence to the
fact that the ejectment case filed by plaintiffs against the former
70
does not involve the question of title. This is so because the judg-
ment rendered in an ejectment case shall not bar an action between
the same parties respecting title to the land or building nor shall it
be held conclusive of the facts therein found in a case between the
71
same parties upon a different cause of action involving possession.
Furthermore, in ejectment cases the jurisdiction of the court is de-
termined by the allegations of the complaint, not by the defense
72
raised by defendant.
P e n d e n c y of action for a n n u l m e n t a n d r e c o n v e y a n c e
does not oust MTC of jurisdiction
The pendency of the action for reconveyance does not consti-
tute a compelling reason to delay the termination of an ejectment
case, for it gives rise merely to an expectancy t h a t the documents
assailed therein may be nullified and the subject properties may be
ordered reconveyed to private respondents, as compared to the clear,
actual and existing legal right of petitioner to the possession of the
73
subject property as the registered owner."
70
Lozada v. Abragan, et al., 66 SCRA 6 0 0 (1975).
71
A n g Ping, et al. v. Regional Trial Court of Manila, Branch 40, et al., 154 SCRA
77 (1987).
"Ramirez v. Chit, 21 SCRA 1364 (1967).
"Galgala, et al. v. Benguet Consolidated, Inc., et al., 177 SCRA 288 (1989).
508
Ejectment suits settle only the issue of physical possession.

They are not barred by the pendency of an action for the annulment
of the sale and for the reconveyance of the disputed land. An ordi-
nance of the City of Manila expressing an intent to expropriate the
74
subject land will not by itself abate an illegal detainer suit.
The same principles were reiterated in Eastern Shipping Lines
75
v. Court of Appeals.
In an unlawful detainer case, the only issue is whether the
defendant has unlawfully withheld possession of the premises after
the expiration of its right to hold possession under any contract,
express or implied. Thus, when the relationship of lessor and lessee
is established in an unlawful detainer case, any attempt of the par-
ties to inject the question of ownership into the case is futile, except
76
insofar as it might throw light on the right of possession.
A lessor is not in law required to bring first an action for rescis-
sion (for violation of lease contract) but could ask the court to do so
and simultaneously seek the ejectment of the lessee in a single ac-
77
tion for illegal detainer.
The respondents may suffer distressing consequences if ever
they are ejected only to be reinstated if they eventually win the
annulment case. However, the same would be true for the petition-
ers if the final outcome is in their favor. There is yet no final decision
74
S o l a n d a Enterprises, Inc. v. Court of Appeals and Luis Manlutac, 305 SCRA
645, April 1 4 , 1 9 9 9 ; National Onion Growers Cooperative Marketing Association, Inc.
v. Lo, 435 SCRA 358, July 28, 2004.
75
3 7 3 SCRA 513, January 16, 2002.
76
E a s t e r n Shipping Lines v. Court of Appeals, 373 SCRA 513, January 16,2002.
77
D a y a o v. Shell Co. of the Phil. Ltd., 97 SCRA 407 (1980); See also Pamintuan
v. Tiglao, 53 Phil. 1; Puahay Lao v. Suarez, 22 SCRA 215. Where, however the princi-
pal issue is one of interpretation, enforcement and/or rescission of the contract, proof
of violation of the provisions of the contact is a condition precedent to resolution or
rescission. The contract can be declared rescinded only when its nature has been clari-
fied and the eventual violation thereof, if any, has been established a matter that is
beyond the jurisdiction of the MTC to hear and determine. Thus, the proper action
should be rescission and not illegal detainer. (Villena v. Chavez, G.R. No. 148126, 415
SCRA 33, November 10, 2003) The validity of Deed of Sale cannot be challenged in an
ejectment case because ejectment cases proceed independently of any claim of owner-
ship. De La Rosa v. Carlos, 414 SCRA 226, October 23, 2003.
509
VOL. Ill
in the annulment case and in the ejectment proceedings. Both par-

78
ties, then, have equal chances of winning the case.
c.3 Previous Rulings Explained

As regards the seemingly contrary ruling in Vda. de Legaspi v.
19 80
Avendano, the Court observed, in Salinas v. Navarro, that "the
exception to the rule in this case of Vda. de Legaspi is based on
strong reasons of equity not found in the present petition. The right
of the petitioners is not so seriously placed in issue in the annulment
case as to warrant a deviation, on equitable grounds, from the im-
perative nature of the rule. In the Vda. de Legaspi case, execution of
the decision in the ejectment case would also have meant demolition
of the premises, a factor not present in this petition."
81
Vda. de Murga v. Chan. is not in point. In that case, the
essential requisite of an unequivocal demand to vacate and surren-
der the premises had not been fulfilled, as the demand actually
made on the lessee was in the alternative: either pay rentals at an
increased rate, or if this be unacceptable, to surrender the leased
property. Furthermore, it appeared that the defendant's lease had
not been legitimately ended but, on the contrary, had been automati-
cally renewed in virtue of a special clause in the lease contract. It
was for these reasons that this Court held t h a t the case was "outside
the jurisdiction of the municipal court x x x."
d. Jurisdiction of MTC to resolve issue of o w n e r s h i p

Under BP 129 when in forcible entry and unlawful detainer
cases, "the defendant raises the question of ownership in his plead-
ings and the issue of ownership," the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts never-
theless have the undoubted competence to resolve "the issue of own-
ership x x x only to determine the issue of possession."
The only exception then to the rule is where the question ofde
facto possession cannot be determined properly without settling that
of de jure possession and ownership because the latter is insepara-
78
D a n t e v. Sison, 174 SCRA 517, June 29, 1989.
79
7 9 SCRA 135 (1977).
80
1 2 6 SCRA 167, 172-173 (1983).
81
2 5 SCRA 4 4 1 ( 1 9 6 8 ) .
510
82 83
bly linked with the former, the JP Court is divested of jurisdiction.
If appealed to the CFI, the latter can exercise its original jurisdic-
84
tion. Under BP 129 however, when the defendant raises the ques-
tion of ownership in his pleadings and the question of ownership in
his pleadings and the question of possession cannot be resolved with-
out deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession (Sec. 33[2]).
85
De Luna v. Court of Appeals, reiterated the principle that
where the question of possession cannot be resolved without decid-
ing the question of ownership, an inferior court has the power to
resolve the question of ownership but only insofar as to determine
86
the issue of possession.
That would have been the last word on the matter. In MUNAR
81
v. Court of Appeals, the First division thru Justice Quiason again
declared as an exception to the rule t h a t mere allegation of owner-
ship by the defendant in an ejectment suit will not divest the court
of its jurisdiction, is where the question of de facto possession cannot
be determined without settling t h a t of ownership because the latter
is inseparably linked with the former. Citing Guzman v. Court of
88
Appeals, which on the other hand erroneously relied on decisions of
the Supreme Court under existing laws before BP 129. So did the
Second Division thru Justice Padilla in Consignado v. Court of Ap-
89
peals. As, however, stressed in the foregoing cases under BP 129,
the RTC may now decide on the basis of the conditions therein
specified resolve the issue of ownership but only insofar as to deter-
90
mine the issue of possession.
82
G u z m a n v. Court of Appeals, 177 SCRA 604 (1989).
83
D e la Cruz v. Court of Appeals, 133 SCRA 521; Consignado v. Court of Appeals,
207 SCRA 297.
84
Alvir v. Vera, 130 SCRA 357.
86
2 1 2 SCRA 276 (1992).
^citing Sees. 30, 32(2) BP. Big. 129; See also Joven v. Court of Appeals, 212
SCRA 700 (1992); Buazon v. Court of Appeals, March 1 9 , 1 9 9 3 , 220 SCRA 182; See also
Section 16, infra.
87
2 3 8 SCRA 372, Nov. 2 5 , 1 9 9 4 .
"177 SCRA 6 0 4 ( 1 9 8 9 ) .
69
Supra.
"Sees. 30, 32(2); Wilmon Auto Supply v. Court of Appeals, 208 SCRA 108, su-
pra; De Luna v. Court of Appeals, 212 SCRA 276, supra; Fige v. Court of Appeals, 223
SCRA 586 (1994); Note 35, infra.
511
VOL. Ill
The Court observed that the passage of Batas Pambansa Big.

129 has spawned seemingly conflicting jurisprudence on the proper
interpretation and application thereof. Thus, in several cases de-
cided by the Court after the effectivity of the law, regardless of
whether the complaint for ejectment was filed with the inferior court
prior thereto or otherwise, like was held that the jurisdiction of the
inferior court is lost and the ejectment case should be dismissed
where the issue of possession cannot be resolved without determin-
ing the issue of ownership. In all of these cases, the Court declared
that inferior courts may only admit evidence and proof of ownership
but they cannot adjudicate on the issue of ownership. Conversely, in
also not a few instances, the jurisdiction of the inferior courts to
resolve the issue of ownership in order to determine the issue of
possession was upheld by the Court. Apparently, it could have been
some imprecision in language or a misinterpretation of the statutory
91
text which generated the ostensible doctrinal variance.
d.l Jurisdiction of MTC to Resolve Issue of O w n e r s h i p

On April 15, 1994, Republic Act No. 7691 took effect and ex-
panded the jurisdiction of the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts, amending for the
purpose the pertinent portions of Batas Pambansa Big. 129. The
jurisdiction of the aforesaid courts as defined in Section 33(2) of
Batas Pambansa Big. 129 was, however, retained by said amendatory
Act. As the law now stands, inferior courts retain jurisdiction over
ejectment cases even if the question of possession cannot be resolved
without passing upon the issue of ownership; but this is subject to
the same caveat that the issue posed as to ownership could be re-
solved by the court for the sole purpose of determining the issue of
92
possession.
Thus, for resolution of the question of whether or not the con-
flicting positions of the litigants, namely petitioner's claim of their
91
Refujia v. Court of Appeals, 258 SCRA 211, July 5 , 1 9 9 6 ; See also disquisition
under Section 16, infra.
92
S e c . 16, Rule 70; See Refugia, et al. v. Court of Appeals, et al., 258 SCRA 211,
July 5 , 1 9 9 6 , and cases cited thereunder; See Comments under Sec. 16, Infra. See also
Boy v. Court of Appeals, 427 SCRA 196, April 14, 2004; Rural Bank of Sta. Ignacia,
Inc. v. Dimatulac, 401 SCRA 742, April 19, 2003.
512
right to possess the subject property pursuant to the deed of sale, on

the one hand, and private respondents' insistence that they remained
owners of the realty because the purported deed of sale is in reality a
mortgage contract, on the other hand, would impale the controversy
on the issue of ownership. The latter theory could plausibly deprive
the municipal trial court of jurisdiction over the case and private
respondents so argue, contending that as they had precisely put in
issue their ownership of the property, that trial court was ab initio
barred from taking cognizance of the suit for lack of jurisdiction. In
resolving the issue, the court traced the jurisdiction of first level
courts in forcible entry and unlawful detainer cases. It concluded
that an adjudication made therein regarding the issue of ownership
should be regarded as merely provisional and, therefore, would not
bar or prejudice an action between the same parties involving title
93
to the land. The foregoing doctrine is a necessary consequence of
the nature of forcible entry and unlawful detainer cases where the
only issue to be settled is the physical or material possession over
the real property, that is, possession de facto and not possession de
94
jure. If the object is to obtain possession, the Municipal Court has
95
jurisdiction regardless of ownership.
d.2 When O w n e r s h i p is a Valid Defense

Ownership is, however, a valid defense in unlawful detainer
cases. While possession is the main issue in ejectment, it is also one
of the essential attributes of ownership. It follows that an owner of
real property is entitled to possession of the same. Petitioner can,
therefore, properly plead his right of possession to defeat that of
respondents. Indeed, an owner who cannot exercise the seven "juses"
or attributes of ownership the right to possess, to use and enjoy, to
93
Asset Privatization Trust v. Court of Appeals, et al., 229 SCRA 627, February
3, 1994; Semira v. Court of Appeals, et al., 230 SCRA 577, March 2, 1994.
9
*De Luna v. Court of Appeals, et al., 212 SCRA 276, August 6,1992; University
Physicians Services, Inc., et al. v. Court of Appeals, et al., 233 SCRA 86, June 13,1994;
Hilario v. Court of Appeals, 260 SCRA 425. .
96
Ganadin v. Ramos, 99 SCRA 613; Municipal Trial Courts now has jurisdiction
over real actions where the assessed value does not exceed P20.000.00 or P50.000.00
in Metro Manila, Sec. 1(2), R.A. 7591. See also Heirs of Pedro Laurora v. Sterling
Technopark III, 401 SCRA 181.
513
VOL. Ill
abuse or consume, to accessories, to dispose or alienate, to recover or

96
vindicate and to the fruits is a crippled owner.
There is a real need to resolve the issue of ownership over the
premises in order to determine who, as between petitioner and re-
spondents, has a better right to possess the property in dispute. This
can only be done in the proper proceeding before the trial court
wherein petitioner will be afforded every right to present evidence in
97
his behalf.
Where the issue is whether the petitioner spouses, as lessees,
were excused from paying the rent because of the change in the
ownership of the land on which the rented house was built, the main
question is the lawful possession of the subject premises by the
petitioner spouses. To resolve it, a discussion of the ownership issue
98
is necessary.
d.3 Mere Violation of Priority or First Option to B u y
Does Not Raise Issue of O w n e r s h i p in Ejectment Cases
Petitioners are questioning the respondent's ownership by rais-
ing as an issue the alleged failure of the bank to first offer to them
the subject property, thereby making respondent's title defective.
This, according to the petitioner spouses, is a defense of ownership
that should have been resolved by the courts a quo.
The defense of ownership contemplated by the said rule refers
to a situation where the defendants either claim ownership of the
subject property or attributes said ownership to another person other
than the plaintiff. It does not apply where the defendants merely
question the validity of the title of the plaintiff. Thus, the petitioner
spouses must anchor the legality of their material possession of the
property on a claim of title in order for the court to be able to touch,
at least provisionally and only for purposes of determining posses-
sion, on the legality of the issue of ownership.
96
Samartino v. Raon, 338 SCRA 644, 674, July 3, 2002. See also Apostol v. Court
of Appeals, G.R. No. 125375, June 17, 2004, 4 3 2 SCRA 351 holding that a person who
has a torrens title over the property is entitled to the possession thereof and the
registered owners are entitled to the possession covered by the said title from the time
such title was issued in their favor, citing Javelosa v. Court of Appeals, 265 SCRA 493
(1996) and Pangilinan v. Aguilar, 43 SCRA 136 (1972).
97
Samartino v. Raon, 338 SCRA 644, July 3, 2002.
98
S p s . Reynaldo Alcaraz v. Tangga-an, 401 SCRA 84, April 9, 2003.
514
The alleged violation of their right of priority or first option to

buy the premises is not the defense of ownership contemplated in Sec
16 because said violation, even if true, would only give a cause of
action for damages on the ground of breach of contract but not an
action for recovery of title.
In distinguishing the aforecited case from other cases decided
by the Court upholding ownership as a valid defense, it was ex-
plained that in Oronce v. Court of Appeals, the defendants main-
tained ownership over the property by claiming that the contract of
sale with assumption of mortgage was actually an equitable mort-
gage. The Court held therein t h a t the defendant as mortgagor, and
not as vendor, of the property can raise as a defense his claim of
ownership over the subject property. In Refugia v. Court of Appeals,
the defendants claimed title over the subject property by contending
that they, and not the plaintiffs, paid for the purchase of the said
property.
In the instant case, however, the petitioners admit that they do
not own the subject parcels of land. As third persons to the contract
of sale between the bank and the respondent, they are only questioning
the validity of the transfer of title to respondent. The same cannot
qualify as a defense of ownership as they will not derive title as a
consequence but will, at best, only be given their disputed priority
option to buy the subject premises."
12. Agricultural Tenants

The rule is not applicable to cases covered by the Agricultural
100
Tenancy Act.
Municipal courts have no jurisdiction over a forcible entry and
101
detainer case involving agricultural tenants. But there must be
102
evidence of tenancy relationship. Mere allegation is not enough.
"Lacap v. Jouvet Ong Lee, 394 SCRA 1, December 11, 2002.

100
H e i r s of Fernando Vinzons, et al. v. Court of Appeals and Mena Edona, 315
SCRA 541, September 30, 1999.
101
B a r a n d a v. Padios, 154 SCRA 720, 21 Oct. 1987; Vide de Leon v. Court of
Appeals, June 19, 1995, 245 SCRA 166.
102
Isidro v. Court of Appeals, 228 SCRA 503 (1994).
515
VOL. Ill
Where there is a defense of tenancy, there must be prelimi-

103
nary hearing on the question of tenancy relationship.
13. Effect of Allegation of Tenancy

a. The allegation that an agricultural tenant tilled the land
in question does not automatically make the case an agrarian dis-
pute which calls for the application of the Agricultural Tenancy Act
and the assumption of jurisdiction by the Department of Agrarian
Reform Adjudication Board (DARAB). It is necessary to first estab-
lish the existence of a tenancy relationship between the Party liti-
gants. The following essential requisites must concur in order to
establish a tenancy relationship: (a) the parties are the landowner
and the tenant; (b) the subject matter is agricultural land; (c) there
is consent; (d) the purpose is agricultural production; (e) there is
personal cultivation by the tenant; and there is a sharing of harvests
between the parties.
b. Where there is no showing that there exists any tenancy
relationship between petitioner and private respondent, the case
falls outside the coverage of the Agricultural Tenancy Act; conse-
quently, it is the Municipal Trial Court and not the DARAB which
has jurisdiction over the controversy.
c. The principle t h a t "an inferior court loses its jurisdiction
where the question of ownership is so necessarily involved that it
would be impossible to decide the question, of bare possession with-
out first settling that of ownership was modified by B.P. Big. 129.
The Municipal Trial Court now retains jurisdiction over ejectment
cases even if the question of possession cannot be resolved without
passing upon the issue of ownership provided that such issue of
ownership shall be resolved only for the purpose of determining
possessions. In other words, the fact that the issues of ownership
and possession de facto are intricately interwoven will not cause the
dismissal of the ejectment case on jurisdictional ground retained its
jurisdiction over the case.
103
Ignacio v. CFI of Bulacan, 42 SCRA 89 (1971); Ferrer v. Villamor, 60 SCRA
106; Salandanan v. Tizon, 62 SCRA 388 (1975); Nonan v. Plan, 63 SCRA 261 (1975);
Concepcion v. Presiding Judge Br. V, CFI Bulacan, 119 SCRA 222 (1982); Bayog v.
Natino, 258 SCRA 378, July 5, 1996.
516
d. Petitioner maintains that the forcible entry case is barred

by the DARAB decision dated 4 March 1992. This contention has no
merit. Felino Mendez, the plaintiff in the DARAB case, is not a party
in the forcible entry case filed before the Municipal Trial Court. His
s t a t u s as private respondent's t e n a n t and his alleged forcible
ejectment from the subject property is not an issue raised in the
forcible entry case. Instead, the question is the right of private re-
spondent to be restored to the physical possession of the subject
104
property.
14. Cases u n d e r jurisdiction of HLURB

The MTC is, without jurisdiction where the ground for ejectment
would involve a consideration of the rights and obligations of the
parties in a sale of real estate under PD 957 which falls under the
jurisdiction of the HLURB and consequently is also without jurisdic-
105
tion to award counterclaim.
15. Forcible Entry; only i s s u e is p o s s e s s i o n de facto

Possession de facto is the physical possession of real property.
Possession de facto and not possession de jure is the only issue in a
106
forcible entry case. Title is never in issue, but only prior physical
possession. If plaintiff has in his favor priority of time, he has the
security t h a t entitles him to stay in the property even against the
owner until he is lawfully ejected by a person having a better right
101
by either accion publiciana or accion reivindicatoria.
16. Respect for Prior Physical P o s s e s s i o n

Although admittedly petitioner may validly claim ownership
based on the monuments of title it presented, such evidence does not
responsively address the issue of prior actual possession raised in a
forcible entry case. It must be stated that regardless of the actual
104
BenaVidez v. Court of Appeals, G.R. No. 125848, 313 SCRA 714, September 6,
1999.
106
Francel Realty v. Court of Appeals, 252 SCRA 127, Jan. 22, 1996. Compare:
Roxas v. Court of Appeals, 391 SCRA 351, Oct. 29, 2002. Unlawful detainer case filed
by subdivision seller against buyer to comply until contract to sell is proper.
106
R e y e s v. Sta. Maria, 91 SCRA 164.
107
G a n a d i n v. Ramos, et al., 99 SCRA 613.
517
VOL. Ill
condition of the title to the property, the party in peaceable quiet

possession shall not be turned out by a strong hand, violence or
terror. Thus, a party who can prove possession can recover such
possession even against the owner himself. Whatever may be the
character of his prior possession, if he has in his favor priority of
time, he has the security that entitles him to remain on the property
until he is lawfully ejected by a person having a better right by
accion publiciana or accion reivindicatoria. When possession has
already been lost, the owner must resort to judicial process for the
108
recovery of property.
17. Validity of Stipulation to Take Over Without Judi-

cial Action
109
In Viray v. ZAC, the stipulation empowers the lessor to repos-
sess the apartment extrajudicially. It states that:
"7. Upon failure of the Lessee to comply with any of the
terms and conditions of this lease, as well as such other terms
and conditions which may be imposed by the Lessor prior to
and/or upon renewal of this lease agreement as provided in par.
2 above, then the Lessor shall have the right, upon five (5) days
written notice to the Lessee or in his absence, upon written
notice posted at the entrance of the premises leased, to enter
and take possession of the said premises holding in his trust
and custody and such possessions and belongings of the Lessee
found therein after an inventory of the same in the presence of
a witness, all these acts being hereby agreed to by the Lessee as
tantamount to his voluntary vacation of the leased premises
without the necessity of suit in court."
The Supreme Court held that it is noteworthy that in an ear-

lier case decided in 1975, Consing v. Jamandre, this Court sustained
the validity of a substantially identical condition in a written lease
agreement, which read as follows:
108
G e r m a n Management and Services, Inc. v. Court of Appeals, 177 SCRA 495,
Sept. 14, 1989; Munoz v. Court of Appeals, 214 SCRA 216, September 23, 1992; De
Luna v. Court of Appeals, 212 SCRA 276 (1992); Joven v. Court of Appeals, 212 SCRA
700 (1992); Montanez v. Mendoza, 392 SCRA 5 4 1 , November 22, 2002.
109
1 9 8 SCRA 786.
518
"9. That in case of the failure on the part of the SUB-LES-

SEE to comply with any of the terms and conditions thereof, the
SUB-LESSEE hereby gives an authority to the SUB-LESSOR or to
any of his authorized representatives to take possession of the leased
premises, including all its improvements thereon without compen-
sation to the SUB-LESSEE and without necessity of resorting to any
court action but in which case the SUB-LESSEE shall be duly ad-
vised in writing of her failure to comply with the terms and condi-
tions of the contract by way of reminder before the takeover."
This Court ruled t h a t the stipulation "is in the nature of a
resolutory condition, for upon the exercise by the Sub-lessor of his
right to take possession of the leased property, the contract is deemed
terminated"; and that such a contractual provision "is not illegal,
there being nothing in the law proscribing such kind of agreement."
Similarly, there is considerable authority in American law up-
holding the validity of stipulations of this nature.
"Although the authorities are not in entire accord, the better
view seems to be, even in jurisdictions adopting the view that the
landlord cannot forcibly eject a tenant who wrongfully holds without
incurring civil liability, t h a t nevertheless, where a lease provides
that if the tenants holds over after the expiration of his term, the
landlord may enter and take possession of the premises, using all
necessary force to obtain the actual possession thereof, and that
such entry should not be regarded as a trespass, be sued for as such,
or in any wise be considered unlawful, the landlord may forcibly
expel the tenant upon the termination of the tenancy, using no more
force than is necessary, and will not be liable to the tenant therefor,
such a condition in a lease being valid."
"* * * although there is contrary authority, the rule supported
by a substantial number of cases is that despite the effect of forcible
entry and detainer statutes, where a lease expressly gives a land-
lord a right to use such reasonable force as is necessary in making
re-entry and dispossessing a tenant, when the landlord becomes
entitled to possession because of the termination of the term, the
landlord can use force in making re-entry and dispossessing the
tenant."
The validity of a stipulation to extrajudicially rescind contract
and recover possession of the property in case of breach of contract
519
Sec. 1 REMEDIAL LAW Rule 7 0
VOL. I l l
110
reiterating in Viray v. IAC, was upheld in Subic Bay Metropolitan
111
Authority v. Universal International Group of Taiwan.
112
Campo Assets Corporation v. Club X.O. Company clarified
the foregoing ruling. The Court stressed that the application of the
provision is limited to situations where the term of the lease has
expired and the logic in allowing the lessor to dispossess the tenant
who has padlocked the premises to prevent re-entry by the owner
despite the expiration of the term of the lease cannot be assailed.
Thus, Paragraph VI of the Memorandum of Agreement em-
ploys the prefatory words "in case the premises shall be deserted or
vacated before the expiration of the Agreement" which would re-
strict the operation of the clause to situations wherein the premises
are in fact vacated already, and would therefore imply that the re-
entry with the use of force if at all, is against property only, the
stipulation would not proscribe re-taking by use of force against
persons despite the fact that the premises are still in the actual
possession of another, albeit under a questioned right. Moreover,
there is no requirement of notice before re-entry. Jurisprudence sup-
ports the view that when parties to a contract expressly reserve an
option to terminate or rescind a contract upon the violation of a
resolutory condition, notice of resolution must be given to the other
113 114
party when such right is exercised. In Zulueta v. Mariano, we
ruled that resort to courts may be necessary when the right involves
the retaking of property which is not voluntarily surrendered by the
other party. The rationale for the ruling in Zulueta v. Mariano is
based on the thesis that no one should take the law into his own
115
hands. In this sense, the stipulation is legally vulnerable. Permit-
ting the use of unqualified force to repossess the property and with-
out condition of notice upon the lessee is fraught with dangerous
possibilities. We are inclined to agree with the Court of Appeals that
such a broad stipulation cannot be sanctioned for the reason that it
1 1 0
1 9 8 SCRA 7 8 6 .
L U
3 4 0 SCRA 3 5 9 , Sept. 1 4 , 2 0 0 0 .
1 1 2
3 2 8 SCRA 5 2 0 , March 2 7 , 2 0 0 0 .
113
Palay, Inc. v . Clave, 1 2 8 SCRA 6 3 8 ( 1 9 8 3 ) , p . 6 4 4 ; University o f the Philip-
pines v . D e los Angeles, 3 5 SCRA 1 0 2 ( 1 9 7 0 ) ; Banez v . Court o f Appeals, 5 9 SCRA 1 5
(1974).
1 1 4
1 1 1 SCRA 2 0 6 ( 1 9 8 2 ) .
1 1 5
J O S E C. VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, p. 4 8 4 .
520
would allow the lessor/owner to take the law into his own hands
and undetermined the philosophy behind the remedy of forcible en-
116
try which is to prevent breach of the peace and criminal disorder
and to compel the party out of possession to respect and resort to the
117
law alone to obtain what he claims to be his.
18. Affirmative Right of Action as a Defense

The finding of the trial court, which was affirmed by the re-
gional trial court is that Arambulo, the lessee, had deserted and
abandoned the leased premises, Campo Assets as lessor had there-
fore acquired a right of action to judicially eject the lessee. It has
118
been ruled in several cases t h a t when the lessor has licitly termi-
nated the lease and had therefore acquired an affirmative right of
action to oust the tenant, such an affirmative right of action consti-
tutes a valid defense against, and is fatal to any action by the lessee
119
against the lessor to regain possession.
To prevent circuity of action, it must be recognized that the
affirmative right of action on the part of the landlord is a complete
and efficacious defense to the maintenance of an action by the ten-
120
a n t . Thus, where the lessor had licitly and efficaciously termi-
nated the month-to-month lease by notice, and had therefore ac-
quired an affirmative right of action to judicially eject the lessee
after giving notice to vacate, the existence of such an affirmative
right of action constitutes a valid defense against, and is fatal to any
action by tenant who has been ousted otherwise that judicially to
recover possession. In Apundar vs. Andrin, the court said:
121
"In Medel vs. Militante, we held that when the tenant denies
his landlord's title this gives rise to a right of action on the part of
the landlord to recover immediate possession of the demised premises;
and it follows as a necessary corollary from this proposition that if
116
Araza v. Reyes, 64 SCRA 347 (1975), pp. 348-349.
117
S u p i a and Batioco v. Quintero and Ayala, 59 Phil. 312; Pitargue v. Sonlla, 92
Phil. 5; Article 576, Civil Code.
118
Apundar v. Andrin, 42 Phil. 356 (1921); Medel v. Militante, 41 Phil. 526 (1921).
ll9
Viray v. IAC, supra, p. 793; Campo Assets Corporation v. Club X.O. Company,
represented by Chan York Gui (Allan), 328 SCRA 520, March 27, 2000.
120
Apundar v. Andrin and Pilapil, 42 Phil. 356.
121
4 1 Phil. 526.
521
VOL. Ill
the landlord acquires possession peacefully, as in this case, by the

mere act of re-entry, the tenant cannot maintain an action to put the
landlord out. The existence of an affirmative right of action on the
part of the landlord to oust the tenant is fatal to the maintenance of
any action by the tenant. Otherwise, the absurd result would follow
that a tenant ousted under the circumstances here revealed would
be restored to possession only himself to be immediately put out in a
possessory action instituted by the landlord. To prevent circuitry of
action, therefore, we must recognize the affirmative right of action
on the part of the landlord as a complete and efficacious defense to
the maintenance of an action by the tenant. Circuitus est evitandus;
et boni judices est lites dirimere, ne lis ex lite oriatur.
Another consideration based upon an idea familiar to jurispru-
dence is equally decisive. This is found in one of the implications of
the familiar maxim, Ubi jus ibi remedium, the converse of which is
of course equally true, namely: Nullum jus nullum remedium. Ap-
plying this idea to the case before us, it is manifest that inasmuch as
the plaintiff's right of possession has been destroyed, the remedy is
also necessarily taken away. Even under the language of the statute
122
itself, the action of unlawful detainer does not lie unless the prop-
erty is unlawfully withheld from the plaintiff, which imports an
123
actual present right of possession in him."
19. N e e d for Allegation a n d Proof of Prior Physical Pos-

session in Forcible Entry
In the complaint of forcible entry, it must be alleged that one in
physical possession of a land or building has been deprived of that
possession by another through force, intimidation, threat, strategy
or stealth, if the dispossession did not take place by any of these
means, the Regional Trial Courts not the Municipal Trial Courts
have jurisdiction. It is not essential, however, t h a t the complaint
should expressly employ the language of the law. It would be suffi-
cient that facts are set up showing that dispossession took place
under said conditions. The bare allegation of the complaint that
plaintiff has been "deprived" of the land of which he is and has been
!2
Sec. 80, Code of Civil Procedure.
!3
Viray v. IAC, 198 SCRA 786, July 4, 1991.
522
124
the legal owner, is not sufficient. It is, however, sufficient to allege
that defendant has unlawfully turned the plaintiff out of possession
of the land or building in litigation, because the phrase "turned the
plaintiff out of possession" suggests the use of force in the taking of
125
the possession away from him.
20. Insufficiency of Allegations of "Prior Physical Pos-

session"
The phrase "thereby depriving said owners of the possession of
the same" is not a sufficient averment of prior physical possession.
It cannot be inferred from the aforecited phrase that the pos-
session that petitioners were supposedly deprived of is a prior physi-
cal possession. The question arises, what sort of prior physical pos-
session is to be averred? The word "possession" as used in forcible
entry and unlawful detainer, means nothing more than physical
possession, not legal possession in the sense contemplated in civil
law. The allegation must likewise show priority in time. Both requi-
126
sites are wanting in the phrase aforecited.
In cases of "stealth" the one year period is counted from the
time the plaintiff learned thereof. Stealth is defined as any secret,
sly or clandestine act to avoid discovery and to gain entrance into or
remain within residence of another without permission. The plain-
tiff must establish when and how the alleged entry was made on the
portion of their lot to prove that defendants encroached upon their
127
property through stealth.
Where the adobe wall and overhang window grill encroaches
on one's property, this may only be a boundary dispute. The remedy
128
should either be an accion publiciana or reivindicatoria.
124
G u m i r a n v. Gumiran, 21 Phil. 174; Roman Catholic Church v. Familiar, 11
Phil. 310.
125
C o Tiamco v. Diaz, et al., 75 Phil. 672.
126
Tirona v. Hon. Floro P. Alejo, 367 SCRA 17, October 10, 2001; See also Ong v.
Parel, G.R. No. 143173, 355 SCRA 691, March 28, 2001.
l27
O n g v. Parel, 355 SCRA 691, March 28, 2001.
1 2 8
0 n g v. Parel, 355 SCRA 691, March 28, 2001.
523
VOL. Ill
21. Determining Nature of Action

a. When Complaint is for Forcible Entry
The complaint subject of the case was captioned as "unlawful
detainer." However, the private respondent alleged therein that from
the start, the possession of the petitioner was unlawful as it was
stated that the defendants have constructed their houses on the
questioned premises stealthily, that is, without the knowledge and
consent of his co-owners. This allegation clearly characterized the
129
complaint as one for forcible entry and not for unlawful detainer.
The questions to be resolved in an action for forcible entry are:
"First, who had actual possession over the piece of real property?
Second, was the possessor ousted therefrom within one year
from the filing of the complaint by force, threat, strategy or stealth?
And lastly, does the plaintiff ask for the restoration of his posses-
130
sion?
b. When Complaint is N e i t h e r Forcible Entry or Un-

lawful Detainer
There was no mention in the complaint nor in the position
paper of the private respondent that he or his co-owners were in
prior possession of the property. There was an allegation that the
property "is presently tenanted" but it did not state when the tenant
started to possess the property. While it is true that possession of
the tenant is possession of the owner, the complaint failed to state
that Loreta Garcia was in prior possession of the property at the
time of entry by the petitioners. And while the complaint stated that
the petitioners obtained possession of the premises through stealth,
it failed to aver when this entry was accomplished or when the
private respondent learned of such entry. The failure of the private
respondent to allege the time when unlawful deprivation took place
is fatal because this will determine the start of the counting of the
one year period for the filing of the summary action of forcible entry.
When the complaint fails to aver facts constituting of forcible entry
or unlawful detainer, as where it does not state how entry was
effected or how and when dispossession started, the action should
'Munoz v. Court of Appeals, 214 SCRA 216 (1992).

'Supra, citing Dizon v. Concina, et al., 30 SCRA 897, December 27, 1969.
524
Rule 70 FORCIBLE ENTRY A N D UNLAWFUL DETAINER
Sec. 1
either be accion publiciana or reinvindicatoria in the Court of First

131
Instance (now Regional Trial Court).
22. Where P o s s e s s i o n is by Tolerance

132
In Vda. de Cachuela v. Francisco, citing Calubayan v.
133
Pascual, it was held that a person who occupies that land of an-
other at the latter's tolerance or permission, without any contract
between them, is necessarily bound by an implied promise that he
will vacate upon demand, failing which a summary action for
ejectment is the proper remedy against him. The status of the de-
fendant is analogous to that of a lessee or tenant whose term of lease
has expired but whose occupancy continued by tolerance of the owner.
In such a case, the unlawful deprivation or withholding of posses-
sion is to be counted from the date of the demand to vacate. Likewise
134
in Yu v. de Lara it was held t h a t the proper remedy against a
person who occupies the land of another, who has no contract with
the owner, and whose possession is merely tolerated, but who refuses
135
to vacate despite demand, is the summary action for ejectment.
The principle was reiterated in Peran v. Presiding Judge, Br.
136
II, CFI, Sorsogon. The Supreme Court added that it is not neces-
sary that there be a formal agreement or contract of lease before an
unlawful detainer suit may be filed against a possessor by tolerance.
Neither is prior physical possession of the property by petitioner an
137
indispensable requisite under the factual milieu of the case.
In another case the defendants contend that since they did not
acquire possession of the property in question by virtue of any con-
tract, express or implied, but have been allowed to live temporarily
l31
Supra, citing Saroma, et al. v. Villegas, et al., supra; Munoz v. Court of Ap-
peals, supra; Viae Sarmiento v. Court of Appeals, 250 SCRA 108, Nov. 16, 1995.
132
9 8 SCRA 172; Benguet Corp. v. Cordillera Caraballo Missions Inc., G.R. No.
155343, Sept. 2, 2005.
l 3 3
2 1 SCRA 146, 148; Zamboanga Barter Goods Retailers Association, Inc. v.
Lobregat, 433 SCRA 624, July 7, 2004.
134
6 SCRA 785.
136
D a k u d a o v. Consolacion, 122 SCRA 8 7 7 , 8 7 8 . See also Boy v. Court of Appeals,
G.R. No. 125088, April 14, 2004, 427 SCRA 196, citing Rivera v. Rivera, 405 SCRA
466, July 8, 2003; Refugia v. Court of Appeals, Supra; See also Arambulo v. Gungab,
G.R. No. 156581, Sept. 30, 2005.
136
1 2 5 SCRA 78
^Citing Pangilinan v. Aguilar, 43 SCRA 136 and Pharma Industries, Inc. v.
Pajarillaga, 100 SCRA 339.
525
VOL. Ill
therein for fee in no sense could there be an expiration or termi-

nation of their right to hold possession by virtue of any contract
express or implied nor would an action for forcible entry be filed
against them. The court held:
The owner's act of allowing the defendants to occupy her house,
rent-free, did not create a permanent and indefeasible right of pos-
session in the latter's favor. Common sense, and the most rudimen-
tary sense of fairness clearly require that the act of liberality be
implicitly, but no less certainly, accompanied by the necessary bur-
den on the defendants of returning the house to the owner upon her
demand. More than once has this Court adjudged that a person who
occupied the land of another at the latter's tolerance or permission
without any contract between them is necessarily bound by an im-
plied promise that he will vacate upon demand, failing which a
138
summary action for ejectment is the proper remedy against him.
The situation is not much different from that of a tenant whose lease
expires but who continues in occupancy by tolerance of the owner, in
which case there is deemed to be an unlawful deprivation or with-
139
holding of possession as of the date of the demand to vacate. In
other words, one whose stay is merely tolerated becomes a defor-
ciant illegally occupying the land or property the moment he is
140
required to leave. Thus, in Asset Privatization v. Court of Ap-
141
peals, where a company, having lawfully obtained possession of a
plant upon its undertaking to buy the same, refused to return it
after failing to fulfill its promise of payment despite demands, this
Court held that "(a)fter demand and its repudiation, * * * (its)
continuing possession * * * became illegal and the complaint for
unlawful detainer filed by the * * * (plant's owner) was its proper
remedy."
It may not be amiss to point out in this connection that where

there had been more than one demand to vacate, the one-year period
138
Yu v. de Lara, 6 SCRA 785 (1962); Pangilinan v. Aguilar, 43 SCRA 136 (1972);
Dakudao v. Consolacion, 122 SCRA 877 (1983); Peran v. Presiding Judge, Br. II, CFI,
Sorsogon, 125 SCRA 78 (1983); Banco de Oro Savings and Mortgage Bank v. Court of
Appeals, 182 SCRA 464 (1990).
139
V d a . de Catchuela v. Francisco, 98 SCRA 172 (1980), citing Calubayan v.
Pascual, 21 SCRA 1 4 6 , 1 4 8 (1967).
140
Odsique v. Court of Appeals, 233 SCRA 626 (1994).
141
2 2 9 SCRA 627, 636 (1994); See also Rivera v. Rivera, 405 SCRA 466, July 8,
2003.
526
Sec. 1
for filing the complaint for unlawful detainer must be reckoned from
142
the date of the last demand, the reason being that the lessor has
the option to waive his right of action based on previous demands
143
and let the lessee remain meanwhile in the premises. Now the
complaint filed by the owner's guardian alleges that the same was
"filed within one (1) year from the date of the first letter of demand
dated February 3, 1990." Although this averment is not in accord
with law because there is in fact a second letter of demand to vacate,
dated February 27, 1990, the mistake is inconsequential, since the
complaint was actually filed on September 17,1990, well within one
144
year from the second (last) written demand to vacate.
23. Tolerance Cannot Convert Forcible Entry Into Un-

lawful D e t a i n e r
The Supreme Court, however explained in Munoz v. Court of
145
Appeals, that where the possession of the defendants was illegal at
the inception as alleged in the complaint there can be no tolerance.
146
As explained in Sarona v. Villegas.
"But will this rule as to tolerance hold true in a case where
there was forcible entry at the start, but the lawful possessor did not
attempt to oust the intruder for over on year, and only thereafter
filed forcible entry suit following demand to vacate?
"x X X.
"A close assessment of the law and the concept of the word
'tolerance' confirms our view heretofore expressed that such toler-
ance must be present right from the start of possession sought to be
recovered, to categorize a cause of action as one of unlawful detainer
not of forcible entry. Indeed, to hold otherwise would espouse a
dangerous doctrine. And for two reasons. First, forcible entry into
142
Sarmiento v. Court of Appeals, 250 SCRA 108 (1995), citing Sarona, et al. v.
Villegas, et al., 22 SCRA 1257 (1968).
143
P e n a s , Jr. v. Court of Appeals, 233 SCRA 744 (1994), citing Racaza v. Susana
Realty, Inc., 18 SCRA 1172 (1966).
144
C a n i z a v. Court of Appeals, 268 SCRA 640, February 24,1997; Roxas v. Court
of Appeals, 391 SCRA 351, October 20, 2002, citing Banco de Oro Savings and Mort-
gage Bank v. Court of Appeals, 182 SCRA 404.
148
2 1 4 SCRA 216 (1992).
14
22 SCRA 1257.
527
VOL. Ill
the land is an open challenge to the right of the possessor. Violation

of that right authorizes the speedy redress in the inferior court
provided for in the rules. If one year from the forcible entry is al-
lowed to lapse before suit is filed, then the remedy ceases to be
speedy; and the possessor is deemed to have waived his right to seek
relief in the inferior court. Second, if the forcible entry action in the
inferior court is allowed after the lapse of a number of years, then
the result may well be that no action for forcible entry can really
prescribe. No matter how long such defendant is in physical posses-
sion, plaintiff will merely make a demand, bring suit in the inferior
court upon a plea of tolerance to prevent prescription to set in
and summarily throw him out of the land. Such a conclusion is
unreasonable. Especially if we bear in mind the postulate that pro-
ceedings of forcible entry and unlawful detainer are summary in
nature, and that the one year time bar to suit is but in pursuance of
the summary nature of the action.
"It is well to remember t h a t after the lapse of the one year
period, suit must be started in the Court of First Instance in an
141
accion publiciana.
Thus, the respondent appellate court erred in holding that this
case is one for unlawful detainer. It failed to consider the basic
distinction that in forcible entry, possession is illegal at the incep-
tion while in unlawful detainer, possession is legal until demand is
made to recover such possession or until the possessor does or fails
to do an act which makes his continued possession of the premises
illegal. The fact that a demand was made by the private respondent
for the petitioners to vacate the subject premises cannot change the
nature of the latter's possession of the property and convert the
former's action from forcible entry to one for unlawful detainer. The
respondent appellate court likewise erred in applying in this case
the doctrine that "a person who occupies the land of another at
the latter's tolerance or permission, without any contract between
them, is necessarily bound by the implied promise that he will va-
cate upon demand, failing which, a summary action for ejectment is
proper remedy against them" because, as we have said here, the
U7
T e n Forty Realty NS Development Corp. v. Cruz, 410 SCRA 484, Sept. 10,
2003, supra, quoting from Sarona v. Villegas, 131 Phil. 365.
528
Rule 7 0 FORCIBLE ENTRY A N D UNLAWFUL DETAINER Sec. 1
possession by defendants was illegal at the inception as alleged in

148
the complaint, hence, there was no tolerance.
Elsewise stated, the tolerance must be presented right from
the start of possession sought to be recovered to categorize a cause of
149
action as one of unlawful detainer.
150
In Velez v. Avelino, it was held that since there is no allega-
tion of forcible entry and the evidence shows that respondent's pos-
session is due to the tolerance of the owner, the case filed before the
CFI for accion publiciana, the purpose of which is to establish who
has a better right to possess, is proper.
24. What m u s t be Alleged in Forcible Entry

151
As further explained in Sumulong v. Court of Appeals.
Forcible entry and unlawful detainer are two distinct causes of
action defined in Section 1, Rule 70 of the Rules of Court. In forcible
entry, one is deprived of physical possession of any land or building
by means of force, intimidation, threat, strategy, or stealth. In un-
lawful detainer, one unlawfully withholds possession thereof after
the expiration or termination of his right to hold possession under
any contract, express or implied. In forcible entry, the possession is
illegal from the beginning and the only issue is who has the prior
possession de facto. In unlawful detainer, possession was originally
lawful but became unlawful by the expiration or termination of the
right to possess and the issue of rightful possession is the one deci-
sive, for in such action, the defendant is the party in actual posses-
sion and the plaintiff's cause of action is the termination of the
152
defendant's right to continue in possession.
Accordingly, in forcible entry, the plaintiff must allege in the
complaint and prove that he was in prior physical possession of the
property in litigation until he was deprived thereof by the defend-
ant, but in unlawful detainer, the plaintiff need not have prior physical
148
M u n o z v. Court of Appeals, supra.
149
Refugia v. Court of Appeals, 2 5 8 SCRA 2 1 1 , July 5 , 1 9 9 6 ; Ten Forty Realty NJ
Development Corp. v. Cruz, 4 1 0 SCRA 4 8 4 , supra.
1 6 0
1 2 7 SCRA 6 0 2 .
1 6 1
2 3 2 SCRA 3 7 2 ( 1 9 9 4 ) .
1 6 2
3 MANUEL v. MORAN, COMMENTS ON THE RULES OF COURT 3 1 2 ( 1 9 8 0 ed.), supra.
529
VOL. Ill
153
possession of the property or elsewhere stated, prior physical pos-
session is not an indispensable requirement in an unlawful detainer
154
case.
25. Allegations Determines Nature of Action: Unlawful
Detainer
A complaint should not however be dismissed merely for its
failure to state a cause of action for forcible entry, although plaintiff
has designated or denominated it in the caption as one for forcible
entry, where the allegations in the body thereof sufficiently establish
a cause of action for unlawful detainer. Well-settled is the rule that
what determines the nature of the action as well as the court which
155
has jurisdiction over the case are the allegations in the complaint.
The cause of action in a complaint is not what the designation of the
complaint states, but what the allegations in the body of the com-
plaint define or describe. The designation or caption is not control-
ling, more than the allegations in the complaint themselves are, for
156
it is not even an indispensable part of the complaint. It is equally
settled that in an action for unlawful detainer, an allegation that the
defendant is unlawfully withholding possession from the plaintiff is
157
deemed sufficient and a complaint for unlawful detainer is suffi-
cient if it alleges that the withholding of possession or the refusal to
vacate is unlawful without necessarily employing the terminology of
158
the law.
Where petitioner's alleged ownership over the subject property

is evidenced by a transfer certificate of title in her name and that
153
D e m a m a y v. Court of Appeals, 186 SCRA 608, 612 (1990).
154
P a n g i l i n a n v. Aguilar, 43 SCRA 136, 144 (1972); Sumulong v. Court of Ap-
peals, 232 SCRA 372, May 10, 1994, supra. See also Varona v. Court of Appeals, 428
SCRA 577, May 20, 2004, citing Tirona v. Alejo, 367 SCRA 17, 30 (2001).
155
Abrin v. Campos, 203 SCRA 420 (1991); Mariategui v. Court of Appeals, 205
SCRA 337, January 24, 1992; Abad v. Court of First Instance, 206 SCRA 567 (1992);
Del Castillo v. Aguinaldo, 212 SCRA 169 (1992); Santos v. Court of Appeals, 214 SCRA
162 (1992).
l56
F e r a n i l v. Arcilla, 88 SCRA 770, 776 (1992).
157
M a d d a m u v. Judge of Municipal Court of Manila, 74 Phil. 230 (1943); Javelosa
v. Court of Appeals, G.R. No. 124292, Dec. 10, 1996, 265 SCRA 493.
158
C o Tiamco v. Diaz, 75 Phil. 672, 685 (1946); Valderama Lumber Manufactur-
er's Co. v. L.S. Sarmiento Co., 5 SCRA 287, 291 (1962); Pangilinan v. Aguilar, supra;
Vide Jakihaca v. Aquino, 181 SCRA 67 (1990); Sumulong v. Court of Appeals, 232
SCRA 372, May 10, 1994, supra.
530
upon the issuance of a certificate of title in her name, she demanded

through counsel, that private respondents vacate the premises within
fifteen days from notice, and notwithstanding such demand, private
respondents refused to vacate the same these allegations as suffi-
cient to make a case of unlawful detainer. Although the phrase "un-
lawfully withholding" was not actually used by petitioner in her
complaint, the allegations therein nonetheless amount to an unlaw-
ful withholding of the subject property by private respondents be-
cause they continuously refused to vacate the premises even after
159
petitioner's counsel had already sent them notices to the effect.
Thus, in an ejectment case, or specifically in an action for un-
lawful detainer, it suffices to allege that the defendant is unlawfully
160
withholding possession of the property in question. A complaint
for unlawful detainer is therefore sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful with-
161
out necessarily employing the terminology of the law. It is there-
fore in order to make an inquiry into the averments of the com-
162
plaint.
Unlawful withholding imply possession on the part of defend-
ant, which was legal in the beginning, having no other source than a
contract, express or implied, possession which has later expired as a
right and is being withheld by defendant." The allegation in the
complaint t h a t defendant was unlawfully withholding possession of
the land from them is sufficient to make out a case for unlawful
163
detainer.
164
The ruling in the Sarona v. Villegas, that a complaint for
unlawful detainer should allege when and how entry on the land
was made by the defendant, finds no application to the case at bar.
In Sarona, the main issue was the timeliness of the filing of the
159
R o s a n n a B. Barba v. Court of Appeals, 376 SCRA 210, February 6, 2002.
160
C a n i z a v. Court of Appeals, 335 Phil. 1107, 1115 (1997), citing Sumulong v.
Court of Appeals, G.R. No. 108817, May 10, 1994, 232 SCRA 372.
161
Ibid., citing also Co Tiamco v. Diaz, 75 Phil. 672 (1946); Valderama Lumber
Manufacturer's, Co., Inc. v. L.S. Sarmiento Co., Inc., 115 Phil. 274 (1962) and Pangilman
v. Aguilar, 150 Phil. 166 (1972).
l62
Ibid., at p. 1113, citing Sarmiento v. Court of Appeals, 320 Phil. 146 (1995);
Huibonhoa v. CA, 320 SCRA 625, December 14, 1999.
163
Javelosa v. Court of Appeals, 265 SCRA 493, Dec. 10, 1996.
164
2 2 SCRA 1257.
531
VOL. Ill
complaint before the MTC. In forcible entry cases, the prescrip-

tive period is counted from the date of defendant's actual entry on
the land; in unlawful detainer, from the date of the last demand to
vacate. Hence, to determine whether the case was filed on time,
there was a necessity to ascertain whether the complaint was
one for forcible entry or for unlawful detainer. In light of these
considerations, the Court ruled that since the main distinction be-
tween the two actions is when and how defendant entered the land,
the determinative facts should be alleged in the complaint. Thus, in
Sarona, the jurisdiction of the MTC over the complaint was
never in issue for whether the complaint was one for forcible entry
or unlawful detainer, the MTC had jurisdiction over it. The case at
bar is different for at issue is the jurisdiction of the MTC over the
unlawful detainer case for petitioner (defendant therein) asserts
165
that the case is one for accion publiciana cognizable by the RTC.
An action although termed as one for "reconveyance of real
property" is actually one for recovery of the right to possess or accion
publiciana and is a plenary action in an ordinary civil proceeding in
a regional trial court to determine the-better-right of possession of
realty independently of the title Accion Publiciana or plenaria de
posession is also used to refer to an ejectment suit filed after the
expiration of one year from the accrual of the cause of action or from
the unlawful withholding of possession of the realty." In such
166
case, the regional trial court has jurisdiction.
Note: Under the expanded jurisdiction of the MTC the latter
has now jurisdiction over real actions depending on the value and
location of the property.
Effect of Extraneous Allegations for cancellation of lessee,
ejectment and collection.
Where the complaint avers ultimate facts required for a cause
of action in an unlawful detainer case, allegations of the complaint
and the reliefs prayed for the termination of the contract that ap-
pear to be extraneous to the primary aim of recovering possession of
property in an action for unlawful detainer are insufficient to oust
167
the court of its jurisdiction over the unlawful detainer cases.
165
Javelosa v. Court of Appeals, 265 SCRA 4 9 3 , Dec. 10, 1996.
166
Cruz v. Sps. Torres, 316 SCRA 193, October 4 , 1 9 9 9 .
167
Huibonhoa v. Court of Appeals, 320 SCRA 625, December 14, 1999.
532
However, an action for unlawful detainer does not preclude the

lessee or ejected party from availing of other remedies provided by
law. The prevailing doctrine is that suits or actions for the annul-
ment of sale, title or document do not abate any ejectment action
168
respecting the same property.
26. Where t h e i s s u e s of t h e c a s e e x t e n d b e y o n d those

c o m m o n l y i n v o l v e d in unlawful detainer suits
In a case filed with the Regional Trial Court, petitioner's com-
plaint was for "Termination of Civil Law Lease; Recovery of Posses-
sion; Recovery of Unpaid Rentals and Damages." After alleging the
facts regarding the lease of the subject property, including Inayan's
refusal to pay rent and to vacate, petitioner prayed that the trial
court declare the civil law lease (and not "tenancy or agricultural
lease") terminated. Plaintiff likewise prayed that defendant be or-
dered to vacate the premises, pay back rentals, unpaid irrigation
fees, moral and exemplary damages and litigation fees.
One of the issues was whether or not the case is for unlawful
detainer which falls under the jurisdiction of the MTC.
The Court held:
Clearly, the case involves more than just the issue of posses-
sion. It was necessary for the trial court below to determine whether
the lease was civil and not an agricultural or tenancy relationship
and whether its termination was in order. More specifically, the
complaint emphasized, in paragraph 4:
"That in entering into the contract, Jesus Jalbuena and de-
fendant Uldarico Inayan definitely agreed that the contract was to
be CIVIL LAW LEASE NOT TENANCY OR AGRICULTURAL
LEASE, for a period of one (1) year renewable for the same period at
the option and agreement of the parties";
As correctly determined by the trial court, one of the issues in
the case below was whether or not the contract entered into by the
plaintiff and defendant was a civil law lease or an agricultural lease.
If the former, the next issue was whether the lease contract between
168
Corpuz v. Court of Appeals, 274 SCRA 275, 280, June 19, 1997; Huibonhoa v.
Court of Appeals, 320 SCRA 625, December 14, 1999.
533
VOL. Ill
the parties had been terminated in 1983 for failure of defendant to

pay his annual rental.
A detainer suit exclusively involves the issue of physical pos-
session. The case below, however, did not concern merely the issue of
possession but as well, the nature of the lease contracted by peti-
tioner's predecessor-in-interest and private respondent. It likewise
involved the propriety of terminating the relationship contracted by
said parties, as well as the demand upon defendant to deliver the
premises and pay unpaid rentals, damages and incidental fees.
Where the issues of the case extend beyond those commonly
involved in unlawful detainer suits, such as for instance, the respec-
tive rights of parties under various contractual arrangements and
the validity thereof, the case is converted from a mere detainer suit
to one "incapable of pecuniary estimation," thereby placing it under
the exclusive original jurisdiction of the regional trial courts (for-
169
merly the courts of first instance).
Where the principal issue is one of interpretation, enforcement
and/or rescission of the contract, proof of violation of the provisions
of the contact is a condition precedent to resolution or rescission.
The contract can be declared rescinded only when its nature has
been clarified and the eventual violation thereof, if any, has been
established a matter that is beyond the jurisdiction of the MTC to
hear and determine. Thus, the proper action should be rescission
170
and not illegal detainer. The validity of Deed of Sale cannot be
challenged in an ejectment case because ejectment cases proceed
171
independently of any claim of onwership.
27. The only q u e s t i o n s a s k e d in forcible entry c a s e s

are:
First: Who has actual possession over the piece of real prop-
erty?
Second: Was the possessor ousted therefrom within one year
from the filing of the complaint by force, intimidation, threat, strat-
egy or stealth?
169
D e Rivera v. Halili, G.R. No. L-15159, September 3 0 , 1 9 6 3 , 9 SCRA 5 9 , 6 4 ; De
Leon v. Court of Appeals and Inayan, G.R. No. 96107, J u n e 1 9 , 1 9 9 5 , 245 SCRA 166.
170
Villena v. Chavez, G.R. No. 148126, 415 SCRA 3 3 , November, 10, 2003.
171
D e la Rosa v. Carlos, G.R. No. 147549, 4 1 4 SCRA 226, October 23, 2003.
534
172
Third: Does he ask for restoration of possession?
Force, intimidation, threat, strategy, or stealth embrace every
situation under which one person can wrongfully enter upon real
173
property and exclude another who is in possession thereof.
28. One who has voluntarily abandoned possession is not
174
ousted by a subsequent possessor.
29. But an action for forcible entry lies against the sheriff
who places the purchaser in possession before the expiration of the
175
redemption period.
30. Unlawful D e t a i n e r only against p e r s o n in actual

possession
An action for unlawful detainer and forcible entry can be main-
tained only against a person in actual possession. The rule does not
require t h a t the lessee or the person who committed the forcible
entry should be made a party even though his whereabouts is un-
176
known.
31. But c o n t i n u e s as s u c h e v e n if defendant vacates

But if the complaint alleges unlawful detainer, even if after the
answer is filed defendant vacates and is no longer in possession, the
case still remains as unlawful detainer and is not converted into an
177
ordinary action for collection.
32. As l o n g as t h e l e s s e e p a y s rent untenable defense

In an action for ejectment, the defense interposed by the les-
sees that the contract of lease authorized them to continue occupy-
ing the premises as long as they pay the rents is untenable, because
it leaves to the lessees the sole power to determine whether the lease
178
should continue or not.
172
Muiioz v. Court of Appeals, 214 SCRA 216 (1992).
173
Mediran v. Villanueva, 37 Phil. 752.
17
*Guzman v. Fabie, 1 Phil. 140.
176
Pabico v. Ong Pauco, 43 Phil. 572.
176
C o Tiac v. Natividad, 80 Phil. 127.
l77
F u e n t e s v. Bautista, 53 SCRA 420.
178
L a o Lim v. Court of Appeals, 191 SCRA 150 (1990).
535
VOL. Ill
33. Action Includes Public Lands

Courts have jurisdiction to resolve who has prior possession of
179
public land.
34. Unlawful Detainer
Unlawful detainer is the act of withholding the possession of
land or building from another who is entitled to it after the expira-
tion or termination of the right of the illegal detainer to hold posses-
sion by virtue of a contract, express or implied, when one year had
not yet elapsed from the time the original possession had become
180
illegal.
181
Jurisdiction is unaffected by the amount of damages.
The execution of a deed of sale with right to repurchase trans-
182
fers possession. The vendee a retro's remedy against a vendor a
retro who after having failed to repurchase the property and title
has been consolidated in the vendee, refused to vacate, is unlawful
detainer.
35. R e n e w a l Clauses U p o n S a m e Terms

A covenant to renew a lease which makes no provision as to the
terms of the renewal or extension implies an extension or renewal
upon the same terms as provided in the original lease contract (In-
183
terpretation is always in favor of the t e n a n t ) .
Where the parties did not make a new one, the terms and
conditions of the original except the provision on the rate and period
of lease are deemed extended. Corollarily, Art. 1678 of the Civil Code
does not apply. The parties agreed t h a t all improvements introduced
by the lessee would accrue to the benefit of the owner at the end of
the lease, without reimbursement. This stipulation, not being con-
179
P i t a r g u e v. Sorilla, supra; Espejo v. Malate, 120 SCRA 269; Guerrerro v.
Amores, 159 SCRA 334; Vide Note 3, p. 276, infra.
180
Villegas v. Court of Appeals, 168 SCRA 553, December 2 0 , 1 9 8 8 .
181
Commander Realty, Inc. and Court of Appeals, 161 SCRA 264 (1988).
182
P h a r m a Industries v. Pajarillaga, 100 SCRA 339.
183
L e d e s m a v. Javellana, 121 SCRA 794. See also Dioquino v. Intermediate Ap-
pellate Court, 179 SCRA 163, November 7, 1989; Vide Santi v. Court of Appeals, No-
vember 8 , 1 9 9 3 , 227 SCRA 541.
536
Sec. 1
trary to law, morals, public order or public policy, binds the parties
184
and is the law between them.
36. Interpretation of R e n e w a l Clause

The phrase "subject to renewal for another ten (10) years" is
unclear on whether the parties contemplated an automatic renewal
or extension of the term, or just an option to renew the contract; and
if what exists is the latter, who may exercise the same or for whose
benefit it was stipulated.
In this jurisdiction, a fine delineation exists between renewal
of the contract and extension of its period. Generally, the renewal of
a contract connotes the death of the old contract and the birth or
emergence of a new one. A clause in a lease providing for an exten-
sion operates of its own force to create an additional term, but a
clause providing for a renewal merely creates an obligation to ex-
ecute a new lease contract for the additional term. As renewal of the
contract contemplates the cessation of the old contract, then it is
185
necessary that a new one be executed between the parties.
37. B r e a c h o f c o m p r o m i s e a g r e e m e n t a s b a s i s for
ejectment
Where the lessee entered into a compromise agreement with
the lessors after he refused to pay the increase in rent of the lease
premises to vacate at a fixed period without the necessity of further
demand no further demand is necessary for him to vacate the
premises. An unlawful detainer case can spring not only from a
contract of lease but may also spring from a compromise agreement
which is also a contract. It is the Metropolitan Trial Court that has
186
exclusive original jurisdiction over such case.
Where, however, the principal issue is one of interpretation,
enforcement and/or rescission of the contract, proof of violation of
the provisions of the contact is a condition precedent to resolution or
rescission. The contract can be declared rescinded only when its
184
Lhuillier v. Court of Appeals, 348 SCRA 620, December 19, 2000.
18B
See Inter-Asia Services Corp. (International) v. Court of Appeals, 263
408, 418 (1996); Buce v. Court of Appeals, 332 SCRA 151, May 12, 2000.
186
Villegas v. Court of Appeals, 168 SCRA 553, December 20, 1988.
537
VOL. Ill
nature has been clarified and the eventual violation thereof, if any,
has been established a matter that is beyond the jurisdiction of the
MTC to hear and determine. Thus, the proper action should be
187
rescission and not illegal detainer. The validity of Deed of Sale
cannot be challenged in an ejectment case because ejectment cases
188
proceed independently of any claim of ownership.
38. Distinction b e t w e e n action for forcible entry and

specific performance
There is a distinction between an action for forcible entry and
specific performance, especially if the defendant is not in possession.
Forcible entry is proper so long as the objective is only restoration of
possession even if there is another pending case involving resale of
189
property of defendant.
Where the lessor with the aid of armed men forcibly dispos-
sessed the lessee of the fishpond and the action is filed to compel the
lessor to perform their part of the contract to maintain the lessee in
the peaceful and adequate enjoyment of the lease for the entire
duration of the contract, the action is for specific performance which
falls within the original exclusive jurisdiction of the Regional Trial
190
Court.
191
However, in Lim Kieh Tong v. Court of Appeals, where the
lessee was deprived by the lessor by means of strategy and stealth,
the case was held to be one of forcible entry and detainer.
192
Similarly in Yap v. Vergel G. Cruz, it was held that where
there was neither demand on the part of the landlord to pay the
rental nor refusal by the lessee to pay the same, when the landlord
entered into a new contract of lease effectively depriving the lessee
of his lease, they were guilty of forcible entry in view of the subsist-
ing lease.
187
Villena v. Chavez, 415 SCRA 3 3 , November 10, 2003.
188
D e La Rosa v. Carlos, 4 1 4 SCRA 226, October 23, 2003.
189
Torres v. Ocampo, 80 Phil. 36.
190
Armoganda v. Court of Appeals, 166 SCRA 203 (1988).
191
1 9 5 SCRA 398 (1991).
192
2 0 8 SCRA 6 9 2 ( 1 9 9 2 ) .
538
Sec. 1
39. Appeal m a y be dismissed w h e r e c o n t r a c t of lease

had expired
Upon expiration of a contract of lease during the pendency of
the appeal, the appeal may be dismissed for being moot and aca-
demic and the subleases is without any right to remain in possession
193
of the property beyond the lease period.
40. Effect of D e a t h of L e s s e e
The issue in ejectment of whether a person can continue a
lease by inheritance does not make it incapable of pecuniary estima-
tion so as to remove the case from the Municipal Court's jurisdiction.
This is purely incidental to the main issue of whether or not defend-
ant has a right to possess the apartment leased to his predeces-
194
sors.
The limitation of one year within which to file an action for
forcible entry and unlawful detainer is reckoned not from the mere
occupancy by the defendant but from the time that possession be-
comes unlawful, such as death of the lessee which terminated the
lease and consequently, rendered the possession of the occupants
195
who were not heirs of the deceased unlawful. The death of the
196
lessee terminates the lease. It was, however, held in another case
that a lease contract is not personal, hence, it is transmissible to the
197
heirs.
The action for ejectment itself is not, however abated by the
death of the defendant, but must continue until final judgment in
which the question of damages must be adjudicated x x x . The issue
concerning the illegality of the defendant's possession is still alive
and upon its resolution depends the corollary issue of whether, and
198
how much damages may be recovered.
Thus, an ejectment case survives the death of a party. The
lessor's demise did not extinguish the desahucio suit instituted by
193
Filoil Refinery Corp. v. Sayo, 100 SCRA 413.
194
Mabalot v. Madela, 121 SCRA 374.
195
Mabalot v. Madela, Jr., 121 SCRA 374.
196
U n i t e d Realty Corp. v. Court of Appeals, 183 SCRA 725, March 27, 1990.
197
Dimaculangan v. IAC, 170 SCRA 893.
198
Tanchueco v. Aguilar, 33 SCRA 233; Vide Salazar v. Court of Appeals, <
SCRA 305, November 2 3 , 1 9 9 5 .
539
VOL. Ill
199
her through her guardian. That action, not being a purely per-
sonal one, survived her death, her heirs have taken her place and
200
now represent her interests in the appeal at bar.
41. Incidents to the main issue of possession de facto
The following are incidents to the main issue of possession de
facto which falls under the jurisdiction of Municipal Court:
a. Whether or not the relationship between the parties is
one of landlord and tenant.
b. Whether or not there is a lease contract and whether or
not the lease contract had already expired.
c. The just and reasonable amount of the rent and the date
when it will take effect.
d. The right of the tenant to keep the premises against the
will of the landlord.
e. If the defendant has built on the land substantial and
valuable building and there is no dispute between the parties as to
the ownership of the land and the building, their rights, according to
201
the Civil Code.
202
f. The power of the court to fix the period of lease.
SEC. 2. Lessor to proceed against lessee only after de-

mand. Unless o t h e r w i s e stipulated, s u c h action by the les-
sor shall be c o m m e n c e d only after d e m a n d to pay or comply
with the conditions of the lease a n d to v a c a t e is m a d e u p o n
the lessee, or by serving w r i t t e n n o t i c e of s u c h d e m a n d u p o n
the person found on the premises, or by p o s t i n g s u c h n o t i c e
on the premises if no p e r s o n be found thereon, a n d t h e l e s s e e
fails to comply t h e r e w i t h after fifteen (15) days in t h e case of
land or five (5) days in t h e case of buildings. (2a)
199
Vda. de Salazar v. Court of Appeals, et al., 250 SCRA 305, Nov. 23, 1995,
citing Vda. de Haberes v. Court of Appeals, 104 SCRA 534 (1981); Republic v. Bagtas,
6 SCRA 242 <1962); Florendo, Jr. v. Coloma, 129 SCRA 304 (1984).
200
C a n i z a v. Court of Appeals, 268 SCRA 640, February 24, 1997.
201
Alvir v. Vera, 130 SCRA 357.
202
Divinagracia v. Court of Appeals, 104 SCRA 180; Ramirez v. Chit, 21 SCRA
1364.
540
Sec. 2
COMMENT:
1. Source of Rule
SEC. 2. Landlord to proceed against tenant only after demand.
No landlord, or his legal representative or assign, shall bring such
action against a tenant for failure to pay rent due or to comply with
the conditions of his lease, unless the tenant shall have failed to pay
such rent or comply with such conditions for a period of fifteen (15)
days, or five (5) days in the case of building, after demand therefor,
made upon him personally, or by serving written notice of such de-
mand upon the person found on the premises, or by posting such
notice on the premises if no persons be found thereon.
D e m a n d t o P a y a n d t o Vacate
Under the present Rule Unless otherwise stipulated, such ac-
tion by the lessor shall be commenced only after: (1) demand to pay
or comply with the conditions of the lease and to vacate is made
upon the lessee, or (2) by serving written notice of such demand
upon the person found on the premises, or (3) by posting such notice
on the premises if no person be found thereon, and the lessee fails to
comply therewith after fifteen (15) days in the case of land or five (5)
days in the case of buildings.
The confusion under the original rule on whether the jurisdic-
tional requirement after demand therefor is a demand to vacate, is
clarified. Once there is default on the part of the lessee by failure to
pay or to comply with the conditions of the lease, the action may be
filed by the lessor after the lessee fails to comply with the demand to
pay or comply with the conditions of the lease and to vacate within
fifteen (15) days in the case of land or five (5) days in the case of
buildings. (Feria)
a. Condition precedent to filing:
Landlord to proceed against tenant only after demand to
pay or comply if the action is for failure to pay rent due or to
comply with the conditions of his lease.
541
VOL. Ill
b. Demand h o w made:
1
(i) Personally upon tenant (may be oral).
(ii) Service of written notice of such demand upon person
found in premises.
(hi) Posting in premises if no persons be found thereon.*
c. Time to c o m m e n c e action
Within one year after unlawful deprivation or withholding of
possession.
Purpose to require cases of this nature to be tried as soon as
possible and decided promptly.
d. Period to File Unlawful D e t a i n e r

Unlawful detainer must be filed within one year from the date
of last demand with the Municipal Trial Court, otherwise, it is an
3
accion publiciana cognizable by the Regional Trial Court.
e. Effect of Non-recourse to B a r a n g a y Conciliation

Referral to the Lupon Chairman or the Pangkat should be
made prior to the filing of the ejectment case. Legal action for
4
ejectment is barred when there is non-recourse to barangay court.
The complaint may be dismissed for failure of the plaintiffs, to avail
of the barangay conciliation process preliminary to judicial recourse.
The Lupong Barangay is with jurisdiction to pass upon an ejectment
controversy where the parties are residents in the same barangay or
in barangays within the same city or municipality. Non-compliance
with the condition precedent prescribed by PD 1508 could affect the
sufficiency of the plaintiff's cause of action and make his complaint
^ l e g a r i o v. Francisco, CA-G.R. No. SP 05816, June 19,1985; Jakihaca v. Aquino,

181 SCRA 67, January 12, 1990.
"Viray v. IAC, 198 SCRA 786.
3
Javelosa v. Court of Appeals, 265 SCRA 493 (1996); Huibonhoa v. Court of Ap-
peals, 320 SCRA 625, December 14, 1999. The MTC has now jurisdiction over accion
plubiciana where the assessed value does not exceed Php 20,000.00 or Php 50,000.00
in Metro Manila (R.A. No. 7691 on Expanded Jurisdiction of the MTC).
4
Ledesma v. Court of Appeals, 211 SCRA 753 (1992).
542
Sec. 2
vulnerable to dismissal on the ground of lack of cause of action or

5
prematurity.''
f. One-year period c o u n t e d from last demand

In unlawful detainer the one year period is counted from the
last demand letter received by the defendant. The lessor has the
privilege to waive the right to bring the proper action, or to allow the
lessee to continue in his occupation thereby legalizing the same.
Consequently, the cause of action for illegal detainer accrued only
when the second demand for rents and for surrender of possession
6
was not complied with.
g. Exception
But where the subsequent demands were mere reminders to
comply with an alleged previous agreement to voluntarily vacate
and the reason why no action was taken was because the lessors
were expecting t h a t the lessee would voluntarily give possession,
7
the one year period is counted from the first demand.
Where the complaint alleged that respondent was the owner of
the subject lot and that he merely allowed his father and his sisters
to construct their houses thereon, and that since 1972 respondent
pleaded to petitioners to remove their houses and such additional
constructions thereon as respondent needed the lot for his own use,
the action is plainly one for recovery of possession of real property, or
accion publiciana, filed on October 7,1987, more than one year after
dispossession or when possession became unlawful, which is within
the jurisdiction of a regional trial court. The jurisdiction of the court
is determined by the allegations of the complaint, not by the answer
nor by the evidence adduced at the trial. Thus, the jurisdiction of the
lower court is not affected by the fact that petitioners asserted in
their answer to the complaint that the subject lot was truly owned
by the estate of their father, also the father of respondent, or that
6
Vinzons, et al. v. Court of Appeals, 315 SCRA 541, September 30, 1999, PD
1508 w a s repealed but substantially reproduced in the Local Government Code, Sec.
534 and Sees. 399 to 422, Chapter 7, Book III, Title One of the Code.
6
S y Oh v. Garcia, 28 SCRA 735, June 1969; Lim Chi v. Garcia, 28 SCRA 735;
Pena, Jr. v. Court of Appeals, 223 SCRA 744 (1994).
7
Desbarats v. Laureano, 18 SCRA 116.
543
VOL. Ill
the last written demand to vacate was given on September 2, 1987,

just more than a month prior to the filing of the action. Since initial
demand to vacate was made in 1972, petitioners' occupancy became
unlawful. Subsequent demands were merely in the nature of re-
minders or alterations of the original demand, the one-year period to
commence suit is counted from the first demand. When the dispos-
session lasted beyond one year, the proper action is accion publiciana
for recovery of possession of the subject property filed in the regional
8
trial court.
The period here was counted from first demand. If the compu-
9
tation was from the last demand, jurisdiction would be in the MTC.
How is Jurisdiction D e t e r m i n e d
The jurisdiction of a court is determined by the allegations of
the complaint, and the rule is no different in actions for ejectment.
Thus, in ascertaining whether or not the action is one for forcible
entry falling within the exclusive jurisdiction of the inferior courts,
the averments of the complaint and the character of the relief sought
10
are to be examined.
h. One-year period is from date p o s s e s s i o n b e c a m e

unlawful
Forcible entry and unlawful detainer are quieting processes
and the one-year time bar to the suit is in pursuance of the summary
nature of the action. The one year period is counted from the time of
entry by stealth was made by the defendant. After the lapse of the
one-year period, the remedy of the party dispossessed of a land is to
11
file an "accion publiciana."
"Desbarats v. de Laureano, supra; Spouses Roman and Amelita T. Cruz v. Sps.

Alfredo & Melba Torres, 316 SCRA 193, October 4 , 1 9 9 9 .
9
The MTC has now jurisdiction over accion plubiciana where the assessed value
does not exceed Php 20,000.00 or Php 50,000.00 in Metro Manila (R.A. No. 7691 on
Expanded Jurisdiction of the MTC).
10
Spouses Roman and Amelita T. Cruz v. Sps. Alfredo & Melba Torres, 316 SCRA
193, October 4 , 1 9 9 9 ; Tirona v. Alejo, 367 SCRA 17, October 10, 2001; See also Ong v.
Parel, 355 SCRA 6 9 1 , March 28, 2 0 0 1 ; Ching v. Malaya, 153 SCRA 4 1 2 (1987);
Huibonhoa v. Court of Appeals, 320 SCRA 625, December 1 4 , 1 9 9 9 .
u
D e Guzman v. Court of Appeals, 271 SCRA 728, April 18, 1997.
544
Allegation that defendant is unlawfully withholding suf-

ficient in unlawful detainer
While it is true that in forcible entry and unlawful detainer
cases, jurisdiction is determined by the nature of the action as pleaded
in the complaint, a simple allegation that defendant is unlawfully
withholding possession from plaintiff is sufficient. In an unlawful
detainer case, the defendant's possession was originally lawful but
ceased to be so by the expiration of his right to possess. Hence, the
phrase "unlawful withholding" has been held to imply possession on
the part of defendant, which was legal in the beginning, having no
other source than a contract, express or implied, and which later
expired as a right and is being withheld by defendant.
These allegations sufficiently make out a case for unlawful
detainer. Petitioner alleged ownership over the subject property as
evidenced by a transfer certificate of title in her name, she con-
tended that upon the issuance of a certificate of title in her name,
she demanded, through counsel, that private respondents vacate
the premises within fifteen days from notice, and notwithstanding
such demand, private respondents refused to vacate the same. Al-
though the phrase "unlawfully withholding" was not actually used
by petitioner in her complaint, the allegations therein nonetheless
amount to an unlawful withholding of the subject property by pri-
vate respondents because they continuously refused to vacate the
premises even after petitioner's counsel had already sent them no-
tices to the effect.
Where the cause of action is unlawful detainer, prior posses-
sion is not always a condition sine qua non. A complaint for unlawful
detainer should be distinguished from that of forcible entry. In forci-
ble entry, the plaintiff has prior possession of the property and he is
deprived thereof by the defendant through force, intimidation, threat,
strategy or stealth. In an unlawful detainer, the defendant unlaw-
fully withholds possession of the property after the expiration or
termination of his right thereto under any contract, express or im-
plied, hence, prior physical possession is not required. This is espe-
cially so where a vendee seeks to obtain possession of the thing sold.
In the case of Pharma Industries, Inc. v. Pajarillaga, ibid., a deed of
sale with right to repurchase was executed over a parcel of land.
When the vendor failed to repurchase the same, title was consoli-
dated in favor of Pharma Industries. The Court ruled that Pharma
545
VOL. Ill
Industries acquired possession of the property upon failure of the

vendor a retro to repurchase the same and consequently, the ven-
dor's right to possess the property had ceased to be lawful. In
ejectment cases, therefore, possession of land does not only mean
actual or physical possession or occupation but also includes the
subjection of the thing to the action of one's will or by the proper acts
and legal formalities established for acquiring such right, such as
12
the execution of a deed of sale over a property.
i. What should be alleged in complaint for unlawful
detainer by tenant
A complaint of unlawful detainer must allege:
a. That the tenant is withholding the possession of the prop-
erty illegally because his right to possess under his contract with the
landlord had expired (Section 2).
b. That the landlord has made a demand upon the tenant to
comply with the terms of the contract and to return the possession of
the property, and that the tenant failed to satisfy the demand within
15 or 5 days, in case of buildings.
c. The complaint must be filed within one year from the date
13
of the demand.
The fact of the lease and the expiration of its term are the only
elements of the action. The defense of ownership is unessential and
does not change the nature of the action.
The only issue in unlawful detainer is who between litigants
14
has a better right to physical possession.
The settled rule is that a complaint for unlawful detainer is
sufficient if it contains the allegation that the withholding of posses-
sion or the refusal to vacate is unlawful, without necessarily em-
15
ploying the terminology of the law. The complaint must aver facts
12
Barba v. Court of Appeals, 376 SCRA 210, February 6, 2002.
13
Gonzales v. Salas, 49 Phil. 1; Dorado v. Virina, 34 Phil. 264; Caridad E s t a t e s v.
Santero, 71 Phil. 114.
14
Dalida v. Court of Appeals, 117 SCRA 480.
15
S u m u l o n g v. Court of Appeals, et al., 232 SCRA 372, May 10, 1994, supra, at
546
showing that the inferior court has jurisdiction to try the case such
16
as how defendant's possession started or continued. Thus, the alle-
gation in a complaint that the "plaintiff verbally asked the defend-
ants to remove their houses on the lot of the former but the latter
refused and still refuse to do so without just and unlawful grounds"
was held to be more than sufficient compliance with the jurisdic-
17
tional requirements. If the possession is by tolerance as has been
alleged in the complaint such possession became illegal upon de-
mand to vacate and the possessor refused to comply with such de-
18
mand.
In another case, the court observed the demand must be either
to pay the rents or to comply with the terms of the contract, as the
case may be. But the letter of petitioner's attorney makes neither
demand on private respondents. It does not demand that they com-
ply with the stipulation prohibiting the lessee from subletting the
land. Instead, the letter demands the execution of a new lease con-
tract on the theory t h a t the 1973 lease agreement has been termi-
nated. As already explained, however, the 1973 contract was not
terminated by the death of Go Co in 1974 because in fact it provides
for the transfer of ownership of buildings built on the land upon the
19
expiration of the lease in the year 2003.
j. When action i s b a s e d o n violation o f lease

Mere failure to pay rent does not ipso facto make unlawful the
tenant's possession. It is the demand to vacate and refusal to vacate
20
which makes unlawful the withholding of possession.
k. D e m a n d to v a c a t e as a pre-requisite
It was earlier held that mere failure to pay rents, or a breach of
contract to pay rents, does not render the possession of the lessee per
se unlawful, nor may the action for his ejectment from the land
accrue upon such failure or breach. In accordance with Section 2,
16
Deveza, et al. v. Montecillo, etc., et al., 27 SCRA 822, March 28, 1969.
17
Jakihaca v. Aquino, et al., 181 SCRA 67, January 12, 1990.
18
Odsique v. Court of Appeals, et al., 233 SCRA 626, July 4, 1994; See
Calubayan, et al. v. Pascual, 21 SCRA 146, September 18, 1967; Hilario v. Cou
19
S a n Andres v. Court of Appeals, 265 SCRA 368.
20
Canaynay v. Sarmiento, 79 Phil. 36.
547
VOL. Ill
Rule 70 of the Rules of Court, the right to bring the action of ejectment
or unlawful detainer must be counted not from the time the defend-
ant has failed to pay rents as agreed upon in the contract, but it is
the failure to pay the rents after a demand therefor is made that
entitles the lessor to bring an action of unlawful detainer. In other
words, the demand contemplated by this provision is not a demand
to vacate, but a demand made by the landlord upon his tenant for
the latter to pay the rents due or to comply with the conditions of his
lease within fifteen (15) days in case of land or within five (5) days in
case of building; and if the tenant fails to comply with said demand,
his possession becomes unlawful and the landlord may then bring
21
the action.
1. Mere demand to pay insufficient

22
However in Casilan v. Tomassi, mere demand for payments
was held as insufficient. Said the Supreme Court: "We have gone
over the allegations of the complaint and found nothing there to the
effect that a demand has been made upon the defendants to vacate
the premises in question. What allegation there was refers to a
demand for payment of the rentals agreed upon such allegation, is
insufficient to confer jurisdiction upon the Justice of the Peace Court
23
in an action for unlawful detainer. Thus, in Canaynay v. Sarmiento,
it was held:
"The fact that it is alleged in the complaint t h a t defendants
failed to pay the rents since after August 25, 1923, does not make
unlawful defendants withholding of possession of the property. Mere
failure to pay rents does not ipso facto make unlawful tenant's pos-
session of the premises. It is the owner's demand for the tenant to
vacate the premises, when the tenant has failed to pay the rents on
time, and the tenant's refusal or failure to vacate, which make un-
lawful the withholding of possession. There is no legal obstacle for
the owner to allow a defaulting tenant to remain in the rented prop-
erty one month, one year, several years, or even decades. That con-
sent, no matter how long it may last, makes lawful tenant's posses-
sion. Only when that consent is withdrawn and the owner demands
21
Zobel v. Abreu, 52 O.G. 3592.
22
1 0 SCRA 261.
23
7 9 Phil. 36.
548
the tenant to leave the property is the owner's right of possession

asserted and the tenant's refusal or failure to move out makes this
possession unlawful, because it is violative of the owner's preferen-
24
tial right of possession." A demand to vacate in an unlawful de-
25
tainer case is a jurisdictional requisite.
m. D e m a n d to Vacate m u s t be Alleged
The need of demand to vacate was stressed in Bandoy v. Court
26
of Appeals, "It is a settled rule that 'where the complaint contains
no allegation t h a t a demand had been made upon the defendant to
vacate the premises but only an allegation that a demand was made
for the payment of the rentals agreed upon, it is held that such
allegation is insufficient to confer jurisdiction upon a justice of the
27
peace court.' The certification issued by the office of the barangay
captain is not conclusive as to the jurisdiction of the court to which
the case was subsequently filed. What was certified to by the barangay
captain was that no settlement was reached by the parties in the
barangay level. It did not certify that all the requisites for the filing
of an unlawful detainer case had been complied with."
Explaining the Co Tiamco case, the Supreme Court stated: "In
the Co Tiamco case, it was proven that there was indeed a notice to
quit or demand to vacate served upon the defendants. The notice to
vacate was offered and admitted in evidence. In the case at bar, the
complaint was defective because of its failure to allege that there
was prior demand to vacate. The defect was not cured because no
evidence of a prior demand to vacate was presented in the trial
28
court, x x x"
An intention to oust is different from an actual or definite
demand to vacate. It is the latter which confers jurisdiction upon the
29
municipal court.
24
S e e also Robles v. San Jose, 52 O.G. 6193; Rickards v. Gonzales, 109 Phil. 423,
Sept. 26, 1960.
25
S a n Andres v. Court of Appeals, 265 SCRA 368, December 6, 1996.
26
1 7 5 SCRA 459 (1989).
27
C a s i l a n v. Tomassi, et al., 10 SCRA 2 6 1 , 2 6 4 ; Santos v. Vivas, 96 Phil. 538,540.
Îbid.
29
Ibid.; Bandoy v. Court of Appeals, 175 SCRA 459.
549
VOL. Ill
A demand to comply and to vacate in an unlawful detainer case

30
is a jurisdictional requirement.
n. The Need of Demand to Vacate a n d Comply
As contemplated in Section 2, the demand required is the de-
mand to pay or comply with the conditions of the lease and not
merely a demand to vacate. Consequently, both demands either to
pay rent or adhere to the terms of the lease and vacate are necessary
to make the lessee a deforciant in order that an ejectment suit may
be filed. It is the lessor's demand for the lessee to vacate the premises
and the tenant's refusal to do so which makes unlawful the with-
holding of the possession. Such refusal violates the lessor's right of
possession giving rise to an action for unlawful detainer.
However, prior to the institution of such action, a demand from
the lessor to pay or comply with the conditions of the lease and to
vacate the premises is required under the aforequoted rule. Thus,
mere failure to pay the rents due or violation of the terms of the
lease does not automatically render a person's possession in the
complaint, otherwise the MTC cannot acquire jurisdiction over the
case.
Nonetheless, it is clear from the above rule that prior demands
to pay or comply with the conditions of the lease and vacate apply
only to cases where the grounds relied upon are non-payment
of rentals or violation of the conditions of the lease, as the
case may be. Hence, a notice to vacate is needed only when the
action is due to the lessee's failure to pay rent or to comply with the
terms of the lease.
Consequently, the waiting period of five (5) days from the giv-
ing of the notice or demand to vacate, necessarily, applies only if the
alleged grounds in the complaint are the non-payment of rents due
31
or non-compliance with the conditions of the lease.
Demand to vacate in ejectment suit; how made Term
"vacate" need not be employed. Petitioner belabors the fact that
the letter is not categorical and precise in seeking his eviction from
30
S a n Andres v. Court of Appeals, 265 SCRA 368, December 6, 1996.
31
Alfredo Arquelada v. Phil. Veterans Bank, 329 SCRA 536, March 31, 2000.
550
the property. * * * It must be stressed that courts and quasi-judicial

bodies, in the exercise of their functions and in making decisions
must not be too dogmatic as to restrict themselves to literal inter-
pretation of words, phrases and sentences. A complete and holistic
view must be taken in order to render a just and equitable judg-
32
ment. A case in point is Golden Gate Realty Corp. v. IAC. The
tenants therein defaulted in the payment of rents. Accordingly, the
owner notified them to pay and failing to do so a case of ejectment
would be filed against them. The tenants argue that the notice does
not make a demand upon them to vacate the premises. In resolving
such issue, this Court ruled that when the lessor demanded pay-
ment of the due and unpaid rentals or a case of ejectment
would be filed against them, the owner was giving strong
notice that 'you either pay your unpaid rentals or I will file a
9
court case to have you thrown out of my property. The Court
also held that the word 'vacate' is not a talismanic word that must be
employed in all notices. The alternatives are clear cut. The tenants
must pay rentals which were fixed and which became payable in he
past, failing which they must move out. There can be no other inter-
pretation of the notice given to them. Hence when the owner de-
manded that either pay or a case for ejectment would be filed
against them, the tenants were placed on notice to move out if
they do not pay. There was, in effect, a notice or demand to
33
vacate.
n.l Two separate d e m a n d s

Explaining the need of a demand to pay and to vacate as
a pre-requisite to the filing of an unlawful detainer case, the
34
Supreme Court in CETUS Development, Inc. v. Court of Appeals
speaking thru Justice Medialdea stated:
"We hold that the demand required and contemplated in Sec-
tion 2, aforequoted, is a jurisdictional requirement for the purpose of
bringing an unlawful detainer suit for failure to pay rent or comply
with the conditions of the lease. It partakes of an extrajudicial rem-
edy that must be pursued before resorting to judicial action so much
32
1 5 2 SCRA 684, 691 (1987).
33
S i a p i a n v. Court of Appeals, 327 SCRA 11, March 1, 2000.
M
1 7 6 SCRA 72, August 7, 1989.
551
VOL. Ill
so that when there is full compliance with the demand, there arises
no necessity for court action.
As to whether this demand is merely a demand to pay rent or
comply with the conditions of the lease or also a demand to vacate,
the answer can be gleaned from said Section 2. This section presup-
poses the existence of a cause of action for unlawful detainer as it
speaks of failure to pay rent due or comply with the conditions of the
lease. The existence of said cause of action gives the lessor the right
under Article 1659 of the New Civil Code to ask for the rescission of
the contract of lease and indemnification for damages, or only the
latter, allowing the contract to remain in force. Accordingly, if the
option chosen is for specific performance, then the demand re-
ferred to is obviously to pay rent or to comply with the conditions of
the lease violated. However, if rescission is the option chosen, the
demand must be for the lessee to pay rents or to comply with the
conditions of the lease and to vacate. Accordingly, the rule that has
been followed in our jurisprudence where rescission is clearly the
option taken, is that both demands to pay rent and to vacate are
necessary to make a lessee a deforciant in order that an ejectment
35
suit may be filed.
Thus, for the purpose of bringing an ejectment suit, two requi-
sites must concur, namely: (1) there must be failure to pay rent or
comply with the conditions of the lease and (2) there must be de-
mand both to pay or to comply and vacate within the periods speci-
fied in Section 2, Rule 70, namely 15 days in case of lands and 5 days
in case of buildings. The first requisite refers to the jurisdictional
requirement of demand in order that said cause of action may be
pursued."
D e m a n d to P a y as Condition for Default Different from

Demand to P a y a n d Vacate as Condition for Filing Action
The court, however, made a distinction between demand to pay
as a condition for default from a demand to pay as a condition for the
filing of an action for unlawful detainer:
"It is very clear that in the case at bar, no cause of action for
ejectment has accrued. There was no failure yet on the part of
35
Supra, citing Casilan, et al. v. Tomassi, G.R. No. L-16574, February 28, 1964,
10 SCRA 261; Rickards v. Gonzales, 109 Phil. 423; Dikit v. Icasiano, 89 Phil. 44.
552
Sec. 2
private respondents to pay rents for three consecutive months. As

the terms of the individual verbal leases which were on a month-
to-month basis were not alleged and proved, the general rule on
necessity of demand applies, to wit; there is default in the fulfillment
of an obligation when the creditor demands payment at the matu-
rity of the obligation or at anytime thereafter. This is explicit in
Article 1169, New Civil Code which provides that "those obliged to
deliver or to do something incur in delay from the time the obligee
judicially or extrajudicially demands from them the fulfillment of
their obligation." Petitioner has not shown that its case falls on any
of the following exceptions where demand is not required: (a) when
the obligation or the law so declares; (b) when from the nature and
circumstances of the obligation it can be inferred that time is of the
essence of the contract; and (c) when demand would be useless, as
when the obligor has rendered it beyond his power to perform.
The demand required in Article 1169 of the Civil Code may be
in any form, provided that it can be proved. The proof of this demand
lies upon the creditor. Without such demand, oral or written, the
effect of default do not arise. This demand is different from the
demand required under Section 2, Rule 70, which is merely a juris-
dictional requirement before an existing cause of action may be pur-
sued.
The facts on record fail to show proof that petitioner demanded
the payment of the rentals when the obligation matured. Coupled
with the fact that no collector was sent as previously done in the
past, the private respondents cannot be held guilty of mora solvendi
or delay in the payment of rentals. Thus, when petitioner first de-
manded the payment of the 3-month arrearages and private re-
spondents lost no time in making tender and payment, which peti-
tioner accepted, no cause of action for ejectment accrued; hence, its
demand to vacate was premature as it was an exercise of a non-
existing right to rescind.
In contradistinction, where the right of rescission exists, pay-
ment of the arrearages in rental after the demand to pay and to
vacate under Sec. 2, Rule 70 does not extinguish the cause of action
for ejectment as the lessor is not only entitled to recover the unpaid
rents but also to eject the lessee." (Underscoring Supplied).
553
VOL. Ill
In other words, the demand required under Section 2 of Rule

70 presupposes the existence of a cause of action for unlawful de-
tainer; and there can only be a cause of action if after failure to pay
the rents due a demand to pay was made and there was refusal on
the part of the lessee. If the lessee pays as demanded there is no
cause of action for unlawful detainer. If he refuses, the cause of
action accrues in which case a demand to pay and to vacate must
again be made as a jurisdictional requirement for the filing of an
unlawful detainer case. In the latter case, acceptance of a tendered
payment of rentals does not constitute a waiver of the cause of
action for ejectment especially when accepted with the written con-
dition that it was without prejudice to the filing of an ejectment
36
suit.
37
Compare Cursino v. Bautista, where the lessee was in default
in the payment of three monthly rentals but refused to vacate the
premises as demanded by the lessor, hence, an ejectment case was
filed against him. The Supreme Court held: "Undoubtedly, petition-
er's belated payments of his back rentals do not automatically re-
store the contract of lease without private respondent's consent. The
terms of the contract of lease have been violated and the lessor-
owner has the unquestionable right to withdraw from said contract
or agreement whether oral or written." This Court has consistently
ruled that "It is the landlord's demand for tenant to vacate the
premises, when the tenant has failed to pay the rents on time and
tenant's refusal or failure to vacate, which make unlawful withhold-
38
ing of possession."
39
In CETUS, the Supreme Court did not consider the lessee as
already in default for non-payment of three monthly rentals no de-
mand to pay having been made by the lessor.
Acceptance of Arrears n o t a w a i v e r
Case law is to the effect that the acceptance by the lessor of the
payment by the lessee of the rentals in arrears does not constitute a
36
C e t u s Development, Inc. v. Court of Appeals, 176 SCRA 72 (1989), supra.
37
1 7 6 SCRA 65, August 7, 1989.
38
C a n a y n a y v. Sarmiento, 79 Phil. 36 (1947); Desbarats v. Vda. de Laureano, 18
SCRA 116 (1966); Balucanag v. Francisco, 122 SCRA 498 (1983).
39
1 7 6 SCRA 65.
554
waiver of the default in the payment of rentals as a valid cause of

40
action for ejectment.
o. Jurisdictional Allegations
o.l General Rule
41
The allegations of the complaint determine jurisdiction.
Thus the complaint must specifically aver facts constitutive of
forcible entry or unlawful detainer how entry was effected, and
how and when dispossession started, otherwise it becomes publiciana
42
or reivindacacion. Written demands to pay rent and to vacate must
both be alleged, otherwise the inferior court cannot acquire jurisdic-
43
tion.
p. Rule on Strictissimi J u r i s
A complaint for ejectment which does not allege a definite de-
mand to vacate the premises before bringing the action nor that
such demand has been made in the form required Section 2 of Rule
72, personally, or by serving written notice, or by posting such notice
44
is held not to establish a cause of action.
The rule in the case of Deveza v. Montecillo is the rule on
strictissimi juris. "Since jurisdiction of courts of limited jurisdiction
is to be interpreted in strictissimi juris and since jurisdiction
hinges on the one year period after such unlawful deprivation or
withholding of possession does not clearly appear on the face of the
complaint and for the reason that petitioners have admitted that
private respondents were in the land and for more than one year
prior to the time the complaint was lodged, the case should be dis-
45
missed."
40
S p o u s e s Clutario v. Court of Appeals, 216 SCRA 341 (1992), citing Cetus De-
velopment v. Court of Appeals, 176 SCRA 72 (1989) which was cited in Carlos v. Court
of Appeals, G.R. No. 109887, 268 SCRA 25, Feb. 10, 1997; Tagbilaran Integrated Set-
tlers Association v. Court of Appeals, G.R. No. 148562, November 25, 2004, 444 SCRA
193.
41
C o Tiamco v. Diaz, 75 Phil. 672; Ching v. Malaya, Supra.
42
D e v e z a v. Montecillo, 27 SCRA 822.
43
C a s i l a n v. Tomassi, 10 SCRA 261.
44
Gallardo v. Moran, 14 SCRA 713.
45
iSee also Valderrama Lumber v. Sarmiento and Co., 5 SCRA 287.
555
VOL. Ill
p.l Liberal Rule

The rule appears to have been relaxed in other cases.
The Rule on Liberal Interpretation

In forcible entry and detainer cases, which are summary in
nature to minimize disturbance of the social order, procedural tech-
nicalities should be care fully avoided and should not be allowed to
override substantial justice. The interest of substantial justice is
best served if both parties in a case are heard and their respective
claims through their respective pleadings and position papers. A
liberal interpretation of technical rules, which does not subvert the
nature of the Rule on Summary Procedure nor defeat its objective of
46
expediting adjudication of suits is not disfavored by the court.
The following allegations are sufficient:
(a) Defendant has unlawfully turned plaintiff out of posses-
47
sion. This suggests use of force.
(b) In unlawful detainer unlawfully withholding posses-
sion from plaintiff is sufficient.
46
(c) In Pangilinan v. Aguilar, it was held that the complaint
for unlawful detainer is sufficient if it alleges that the withholding
of possession or the refusal to vacate is unlawful without necessarily
employing the terminology of the law and the other details like the
one year period within which the action should be brought and the
demand required to be made may be proven but need not be alleged
in the complaint. Note: In this case there was demand to vacate
alleged in the complaint.
(d) Where in the drafting of the complaint, the form provided
in the rules is followed, the one year period within which the action
should be brought and the demand when required by the rules must
49
be proved but need not be alleged the court emphasized that "the
principle underlying the brevity and simplicity of pleadings in forci-
46
Rural Bank of Sta. Ignacia v. Dimatulac, G.R. No. 142015, April 29, 2003, 441
SCRA 742. Cited in Gaerlan v. Court of Appeals.
47
C o Tiamco v. Diaz, 75 Phil. 672, supra.
48
4 3 SCRA 136.
49
C o Tiamco v. Diaz, 75 Phil. 672, supra.
556
Sec. 2
ble entry and unlawful detainer cases rests upon considerations of

public policy. Ejectment cases are summary in nature for they in-
volve perturbation of social order which must be restored as promptly
as possible and, accordingly, technicalities or details of procedure
50
should be carefully avoided."
The aforecited case of Co Tiamco is not an action for unlawful
detainer based on violation of lease but expiration of lease where no
demand is required.
It was also held in said case that the absence of any allegation,
as to demand has been covered by proof thereof even over the objec-
tion of the defendant pursuant to Section 5 of Rule 10.
The complaint here is verbatim copy of the form under the
rules which should be considered sufficient.
A complaint is sufficient where it shows facts sustaining the
action for forcible entry or illegal detainer.
Liberal construction of the rules and the pleadings is the

51
controlling principle to effect substantial justice. Litigations should,
as much as possible, be decided on their merits and not on
technicalities. Departures from procedure may be forgiven where
they do not appear to have impaired the substantial rights of the
513
parties.
q. Terminology of Law N e e d Not be Employed

An allegation that the defendant is unlawfully withholding
possession from the plaintiff is sufficient, and a complaint for un-
lawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily
52
employing the terminology of the law. Thus:
60
Cited in Javelosa v. Court of Appeals, 265 SCRA 493, Dec. 10, 1996.
"Pacific Asia Overseas Shipping Corporation v. NLRC, G.R. No. 76595, May 6,
1988, 161 SCRA 122; International Corporate Bank v. IAC, G.R. No. 69560, June 30,
1988, 163 SCRA 296.
61a
Mercader v. DBP, G.R. No. 130699, May 12, 2000; Yuchengco v. Republic ot
the Philippines, G.R. No. 1311127, June 8, 2000, 333 SCRA 368.
"Sumulong v. Court of Appeals, 232 SCRA 272 (1994).
557
VOL. Ill
It is easily discernible from the allegations in the complaint

that the re-occupation by INLAND of the premises in question in
December 1989 after it was discovered that INLAND was not
owned by Jopson was by virtue of Sumulong's tolerance because
INLAND promised to negotiate for a contract of lease and conse-
quently, its continuance in possession was conditioned on the execu-
tion of a lease contract. Possession by tolerance is lawful. However, a
person who occupies the land of another at the latter's tolerance or
permission without any contract between them is necessarily bound
by an implied promise that he will vacate upon demand, failing
which a summary action for ejectment is the proper remedy against
him. So here, as alleged in the complaint, when the negotiations for
a lease contract fell through and Sumulong made "repeated demands"
for INLAND to vacate the Sumulong property but "defendant Inland
Trailways refuse[d] to vacate the subject properties' premises and to
turn over the peaceful possession thereof to plaintiff," INLAND'S
possession became unlawful. Such repeated demands for INLAND
to vacate the property are sufficient compliance with the jurisdic-
tional requirement of demand in an unlawful detainer case. In Hautea
v. Magallon, we held t h a t an allegation in an original complaint for
illegal detainer that in spite of demands made by the plaintiff the
defendants had refused to restore the land is considered sufficient
53
compliance with the jurisdictional requirement of previous demand.
r. Difference b e t w e e n Allegation a n d Proof

What prevents a trial court from acquiring jurisdiction in
ejectment cases is the failure to allege in the complaint t h a t a de-
mand was made, not the fact t h a t plaintiff failed to prove said alle-
gation. In ejectment cases, the trial court does not assume jurisdic-
tion if the complaint fails to allege t h a t a demand has been made. In
case the plaintiff fails to prove said demand despite allegations in
the complaint to t h a t effect, the case should be dismissed not be-
cause of lack of jurisdiction but because the complaint did not meet
the evidentiary requirement (preponderance of evidence) to merit
54
the judicial eviction of a defendant.
63
S u m u l o n g v. Court of Appeals, supra.
"Silverio v. Court of Appeals, 407 SCRA 240, July 24, 2003.
558
s. Where t e r m s of lease expires; No n e e d of prior de-

m a n d to v a c a t e
Thus, demand is a prerequisite to an action for unlawful de-
tainer when it is for failure to pay rent due or to comply with the
conditions of the lease, and not where the action is to terminate the
lease because of the expiration of its term. The rule is applicable
only where there is a lessor-lessee relationship and where the grounds
relied upon for ejectment are non-payment of rentals or violation of
the conditions of the lease, but not when the action is to terminate
the lease because of the expiration of the term. An allegation in the
complaint for illegal detainer by the plaintiff the defendant has
refused to restore the property is sufficient compliance with the
55
jurisdictional requirement of previous demand.
There is no need to allege prior demand where the cause of
action is cessation of tolerance and not to pay rentals on the prop-
56
erty.
It has been held in earlier cases that the lease ceases upon the
expiration of its term without the necessity of any notice to the
tenant who henceforth becomes a deforciant withholding the prop-
erty unlawfully "after the expiration or termination of the right to
hold possession by virtue of any contract, express or implied" as
provided in Rule 70, Section 1. In other words, upon the expiration
of the term of a lease, the landlord may go into the property and
occupy it, and if the lessee refuses to vacate the premises, an action
for unlawful detainer may immediately be brought against him even
57
before the expiration of the fifteen or five days provided in Rule 70.
In such a case a demand to vacate is not necessary for judicial action
58
after the expiration of one month.
t. Lease contracts on a m o n t h to m o n t h basis

Where no definite period for the lease was agreed upon by the
parties but the rent is paid on a monthly basis, the contract is one
with a fixed term, which terminates at the end of each month if
notice to vacate is properly given. This rule applies to verbal lease
66
C o Tiamco v. Diaz, 75 Phil. 672.
M
L a n u z a v. Munoz, 429 SCRA 562, May 27, 2004.
67
C o Tiam Co v. Diaz, supra; Roxas v. Alcantara, 113 SCRA 21.
B8
Heirs of Suico v. Court of Appeals, 266 SCRA 444, January 21, 1997.
559
VOL. Ill
agreements. Accordingly, the lessee may be legally ejected since ac-

cording to Section 5(f) of Batas Pambansa Big. 877, ejectment may
59
be allowed on the ground of expiration of the lease agreement.
60
Thus in a number of cases, the court held that a lease on a
month-to-month basis (Verbal or otherwise) is, under Art. 1687, a
lease with a definite period, upon the expiration of which upon de-
mand made by the lessor on the lessee to vacate, the ejectment of the
lessee may be ordered.
Art. 1687 of the Civil Code provides:
Art. 1687. If the period for the lease has not been fixed, it is
understood to be from year to year, if the rent agreed upon is annual;
from month to month, if it is monthly; from week to week, if the rent is
weekly; and from day to day, if the rent is to be paid daily. However,
even though a monthly rent is paid, and no period for the lease has
been set, the Courts may fix a longer term for the lease after the lessee
has occupied the premises for over one year. If the rent is weekly, the
Courts may likewise determine a longer period after the lessee has
been in possession for over six months. In case of daily rent, the
courts may also fix a longer period after the lessee has stayed in the
place for over one month.
This provision has been affected by the suspension in S6 of B.P.
877 which provides:
S6. Application of the Civil Code and Rules of Court of the
Philippines. Except when the lease is for a definite period, the
provisions of paragraph (1) of Article 1673 of the Civil Code of the
Philippines, in so far as they refer to residential units covered by this
Act, shall be suspended during the effectivity of this Act, but other
provisions of the Civil Code and the Rules of Court on lease contracts,
in so far as they are not in conflicts with the provisions of this Act
shall apply.
59
Wabe v. Court of Appeals, G.R. No. 82042, 20 J u n e 1988, Minute Resolution;
Uy Hoo and Sons Dev. Corp. v. Court of Appeals, 174 SCRA 100 (1989); United Realty
Corporation v. Court of Appeals, 183 SCRA 725, March 2 7 , 1 9 9 0 ; Vide Garcia v. Court
of Appeals, 220 SCRA 264, March 2 2 , 1 9 9 3 .
*E.g., Legar Management Realty v. Court of Appeals, 252 SCRA 335, January
24,1996; Palanca v. IAC, 180 SCRA 119 (1989); Uy Hoo and Sons Realty Development
Corp. v. Court of Appeals, 174 SCRA 100 (1989); Tagbilaran Integrated Settlers Asso-
ciation (MSA) v. Court of Appeals, G.R. No. 148562, November 25, 2004, 444 SCRA
193.
560
Sec. 2
What has been suspended by the Rent Control Law (S6 of B P

877, formerly S6 of B.P. Big. 25) is Art. 1673 and not Art. 1687 of the
Civil Code. The effect of the suspension on Art. 1687 is only that the
lessor cannot eject the tenant by reason alone of the expiration of
the period of lease as provided in said Art. 1687. Otherwise, Art.
1687 itself has not been suspended. Hence, it can be used to deter-
61
mine the period of a lease agreement.
Where the lessee was notified of the expiration of the lease
effective December 30, 1990, her right to stay in the premises came
to an end.
The expiration of a period of lease as a ground for ejectment is
expressly provided in S5(f) of B.P. 877. Petitioner is in error in rely-
ing on S5 of the original law, B.P. 25, which speaks of the expiration
of "written lease contract" as a ground for ejectment implying that
an oral lease contract is a lease contract without a definite period.
B.P. Big. 877, S5(f) now says "expiration of the period of the lease
contract," thus removing the distinction between a written and oral
62
contract of lease.
u. Effect of A l t e r n a t i v e D e m a n d to P a y I n c r e a s e d
Rental or to Vacate
63
In Lesaca v. Cuevas, it was held that a lease contract on a
month-to-month period is a contract which provided for a definite
period and may be terminated at the end of any month. And it is
deemed terminated at the end of the month when the lessee refused
to pay the increased rentals or to vacate the leased premises and
this is legally sufficient for purposes of ejectment suit without need
of further demand.
61
S e e Legar Management Realty v. Court of Appeals, 252 SCRA 335, Jan. 24,
1996; Medina v. Court of Appeals, 225 SCRA 607 (1993); Lipata v. Court of Appeals,
194 SCRA 214 (1991); Palanca v. IAC, 180 SCRA 119 (1989); Rivera v. Florendo, 143
SCRA 278(1986).
62
See Uy Hoo and Sons Realty Development Corp. v. Court of Appeals, 174 SCRA
100 (1989); De Vera v. Court of Appeals, 260 SCRA 396, August 7,1996; Vide Ferrer v.
Court of Appeals, 274 SCRA 219, June 19, 1997, citing Acab v. Court of Appeals, 241
SCRA 546 (1995).
63
1 2 5 SCRA 384.
561
VOL. Ill
The foregoing principle is to be distinguished from the case of

64
Vda. de Murga v. Chan, where the lessor has the option to pur-
chase the improvements introduced by the lessee, but in the event
the lessor did not exercise such option, then the contract was auto-
matically renewed. Therefore, a more definite demand to vacate was
necessary to give the lessor the right to eject the lessee form the
premises. A demand in the alternative was not considered as suffi-
cient.
v. Conflicting Rulings Sufficiency of Alternative De-
mand to Pay Increase or Vacate
65
However, the ruling in Vda. de Murga v. Chan, was not ap-
plied in Samahan ng Manggagawa sa Azcarraga Textile Market, et
66
al. v. Court of Appeals. The Supreme Court explained:
The ruling in the Vda. de Murga v. Chan case does not apply to
this case. In Vda. de Murga, the lease contract provided t h a t upon
its expiration, the lessor had the option to purchase the improve-
ments introduced by the lessees on the leased premises, but in the
event the lessor did not exercise such option then the contract was
automatically renewed. Under these facts, the court ruled that a
more definite demand to vacate was necessary to give the lessor the
right to eject the lessee from the premises.
The Court stated in Vda. de Murga:
xxx
"x x x We, however, do not find such notice (the alternative
either to pay the increased rental or otherwise to vacate the land) to
be the demand contemplated by the Rules of Court in 'unlawful
detainer' cases. When after the notice thereby merely assumed the
obligation of paying the new rental and could not be ejected until he
67
defaulted in said obligation and necessary demand was first made.
However, the facts of the instant case are different.
Private respondent Antonio Lim was the lessee of the building
where the petitioners' stalls were housed, having leased the same
64
2 5 SCRA 441.
65
Supra.
^165 SCRA 598.
67
See Lesaca v. Cuevas, 125 SCRA 398.
562
Sec. 2
from Goodland Company, Inc., the owner of the building of February

10,1978. As of December 31,1977, the petitioners'contracts of lease
with Goodland Company, Inc., had already expired. The stallholders
were ordered to vacate if they were not amenable to the increased
rentals. The petitioners did not pay increased rentals and did not
vacate the premises. The Goodland Company, Inc. had earlier placed
a big sign on the market wall, ordering the petitioners to vacate
their respective stalls. The conferences looking for a way to avoid
ejectment had broken down.
Ejectment complaints were then filed in court. The private
respondent was the new sublessor of the petitioners. As such, the
private respondent had the right to eject the petitioners as the old
contracts had expired and no new contracts of lease were executed.
The demand letters sent to the petitioners substantially comply with
the rules. Thus, on March 27, 1978, the private respondent through
his counsel sent each of the petitioners a letter which he himself
delivered to them, giving them an extension of five (5) days after the
expiration of the ten-day period previously given them to execute a
contract of lease over the market stalls, otherwise, the private re-
spondent would consider their failure as lack of interest to lease the
premises, in which even they had ten (10) days to vacate the premises
from receipt of the letter after paying the back rentals due begin-
ning February 1, 1978. When the petitioners failed to comply with
the demand, the private respondent then filed the ejectment cases
against the petitioners.
Considering these circumstances, the demand letters sufficed
68
for the city court to acquire jurisdiction over the cases. The Court
also notes the length of time that elapsed when the petitioners stated
they were entering into a compromise agreement with the respond-
ent during the pendency of this case.
May court t a k e j u d i c i a l n o t i c e of r e a s o n a b l e amount of
rentals?
In Badillo v. Tayag (G.R. No. 143976, April 3, 2003, 400 SCRA
494), citing Herrera v. Bollos (G.R. No. 138258, January 18, 2002),
^See Lesaca v. Cuevas, supra; Golden Gate Realty Corporation v. Intermediate

Appellate Court, 152 SCRA 684, where the Court also applied a liberal rule to the
nature of a demand to vacate.
563
VOL. Ill
the Court held that the reasonable amount of the rent could be
determined NOT by mere judicial notice on the rental value of the
premises but by supporting evidence.
w. Alternative Demand to Vacate Insufficient

Like other decisions of the Supreme Court, this was not the
69
last word on the matter. In Penas, Jr. v. Court of Appeals, the
70
Second Division went back to Vda. de Murga v. Chan. ln this case,
the first demand letter addressed by petitioners to private respond-
ents gave the latter the option to either vacate the premises on or
before 28 February 1990 or agree to execute a new lease contract for
one (1) year at an increased rental rate of P2,500 per month. Citing
the ruling in Vda. de Murga v. Chan that:
"The notice giving the lessee the alternative either to pay the
increased rental or otherwise vacate the land is not the demand
contemplated by the Rules of Court in unlawful detainer cases. When
after such notice, the lessee elects to stay, he thereby merely as-
sumes the new rental and cannot be ejected until he defaults in said
obligation and necessary demand is first made the Supreme Court
held that when private respondents elected to remain in the premises
after petitioners had sent him the letter of 18 J a n u a r y 1990 giving
him the option to vacate by 28 February 1990 or to sign a new lease
contract for one year at an increased rental of P2,500 a month, he
assumed the new rental rate and could be ejected from the premises
only upon default and by a proper demand from the premises. The
demand was made on 10 August 1992, followed by the action for
unlawful detainer on 25 September 1992 which is well within one
year from the date of last demand.
The foregoing ruling is in accord with the 1957 case of Manotok
71
v. Guinto, when the Supreme Court held that when after the notice
of increased rental the lessee elects to stay, he thereby merely as-
sumes the obligation of paying the new rental and could not be
ejected until he defaults in said obligation where necessary demand
should first be made.
69
2 3 3 SCRA 7 4 4 ( 1 9 9 4 ) .
Supra.
71
1 0 1 Phil. 383.
564
That as not the last word. The court in another case shifted to
the principle that the alternative demand to vacate is sufficient
Thus:
"It must be stressed that courts and quasi-judicial bodies, in
the exercise of their functions and in making decisions, must not be
too dogmatic as to restrict themselves to literal interpretation of
words, phrases and sentences. A complete and holistic view must be
taken in order to render a just and equitable judgment. A case in
72
point is Golden Gate Realty Corp. v. IAC. The tenants therein de-
faulted in the payment of rents. Accordingly, the owner notified them
to pay and failing to do so a case of ejectment would be filed against
them. The tenants argue that the notice does not make a demand
upon them to vacate the premises. In resolving such issue, this Court
ruled that when the lessor demanded payment of the due and
unpaid rentals or a case of ejectment would be filed against
them, the owner was giving strong notice that 'you either pay
your unpaid rentals or I will file a court case to have you
thrown out of my property* The Court also held that the word
'vacate' is not a talismanic word that must be employed in all notices.
The alternatives are clear cut. The tenants must pay rentals which
were fixed and which became payable in he past, failing which they
must move out. There can be no other interpretation of the notice
given to them. Hence when the owner demanded that either pay
or a case for ejectment would be filed against them, the tenants
were placed on notice to move out if they do not pay. There was,
73
in effect, a notice or demand to vacate.
74,
The court cited Garcia v. Court of Appeals that when the
former owner of the leased estate already sent a notice to vacate, the
buyer thereof need not send another notice before filing the ejectment
suit.
x. N e e d of n o t i c e of prior termination and to vacate in
month-to-month contracts
75
In Rivera v. Florendo, the Supreme Court held:
72
1 5 2 SCRA 684, 691 (1987).
73
S i a p i a n v. Court of Appeals, G.R. No. 111928, 327 SCRA 11, March 1,
74
2 2 0 SCRA 264, 22 March 1993.
75
1 4 3 SCRA 2 7 8 ( 1 9 8 6 ) .
565
VOL. Ill
Admittedly, no definite period for the lease was agreed upon by

petitioners and private respondent. However, as the rent was paid
on a monthly basis, the period of lease is considered to be from
month to month in accordance with Article 1687. When petitioners
gave private respondent notice to vacate the premises in question,
the contract of lease is deemed to have expired as of the end of the
month. As we have ruled in Baens v. Court of Appeals, "even if the
month to month arrangement is on a verbal basis, if it is shown that
the lessor needs the property for his own use or for the use of an
immediate member of the family or for any of the other statutory
grounds to eject under Section 5 of Batas Pambansa Big. 25, which
happens to be applicable, then the lease is considered terminated as
of the end of the month, after proper notice or demand to vacate has
77
been given."
The ruling was reiterated in Zablan v. Court of Appeals, as
follows:
As in Rivera, admittedly no definite period for the lease was
agreed upon between the petitioner and the private respondents.
However, as the rent was paid monthly, so the period of lease is
considered to be from month to month in accordance with Article
1687. Thus, when the private respondents gave the petitioners no-
tice to vacate the premises on or before May 31,1979, the contract of
lease was deemed to have expired as of the end of the said month. As
we have ruled in Baens v. Court of Appeals, "even if it is shown that
the lessor needs the property for his own use or for the use of an
immediate member of the family or for any of the other statutory
grounds to eject under Section 5 of Batas Pambansa Big. 25, which
happens to be applicable, then the lease is considered terminated as
of the end of the month, after proper notice or demand to vacate has
79
been given."
Again the same cases were cited in Uy Hoo and Sons Realty
80
Development Corporation v. Court of Appeals, pointing out that the
Supra.
" S e e Crisostomo v. Court of Appeals, 116 SCRA 188.
78
1 5 4 SCRA 487 (1987).
19
See Crisostomo v. Court of Appeals, 116 SCRA 199.
80
1 7 4 SCRA 100 (1989); Tagbilaran Integrated Settlers Association (TISA) v.
Court of Appeals, G.R. No. 148562, November 25, 2004, 444 SCRA 193.
566
Sec. 2
thrust of the decisions in said case appears to be that the determina-

tion of the period of a lease agreement can still be made in accord-
ance with said Article and that in a month to month lease situation
"when petitioners (lessor) gave private respondent (lessee) notice to
vacate the premises in question, the contract of lease is deemed to
have expired at the end of the month.
81 82
Uy Hoo, was cited in Palanca v. IAC, where "this court ruled
t h a t a month to month lease under Article 1687 is a lease with a
definite period, the expiration of which upon previous demand by
the lessor to vacate, can justify ejectment."
83
And in Yap v. Cruz, the Supreme Court stressed:
True, the lease of private respondent is on a month-to-month
basis and may be terminated at the end of any month after proper
84
notice or demand to vacate has been given. In the case at bar,
however, the lack of proper notice or demand to vacate upon the
private respondent is clearly evident. In the absence of such notice,
the lease of private respondent continues to be in force and cannot
be deemed to have expired as of the end of the month automatically.
Neither can the non-payment of the rent for the month of August,
1985 be a ground for termination of the lease without a demand to
pay and to vacate. The instant case can easily be differentiated from
85
the case of Vda. de Kraut v. Lontok, which was cited by petitioners
in support of their contention that a lease on a month-to-month
basis may be terminated at the end of any month and shall be
deemed terminated upon the lessee's refusal to pay the increased
rental because here there was neither demand on the part of the
private respondent to pay the same as in fact he made a tender of his
rental payment in the latter part of August, 1985. Thus, when the
landlord and the petitioners entered into a new contract of lease
effectively depriving the private respondent of his lease, they were
ai
Supra.
82
1 8 0 SCRA 119 (1989).
M
2 0 8 SCRA 6 9 2 ( 1 9 9 2 ) .
"Rivera v. Florendo, 143 SCRA 278, July 31, 1986; Zablan v. Court of Appeals,
154 SCRA 487, September 30, 1987; Uy Hoo and Sons Realty Development Corp. v.
Court of Appeals, 174 SCRA 100, June 14, 1989; Palanca v. IAC, 180 SCRA 199, De-
cember 15, 1989.
M
7 SCRA 281, February 2 7 , 1 9 6 3 .
567
VOL. Ill
clearly guilty of forcible entry in view of the subsisting lease of

private respondent.
x.l There is no need to allege prior demand where the cause
of action is cessation of tolerance and not to pay rentals on the
86
property.
The rule is applicable only where there is a lessor-lessee rela-
tionship and where the grounds relied upon for ejectment are non-
payment of rentals or violation of the conditions of the lease, but not
when the action is to terminate the lease because of the expiration of
87
the term.
An allegation in the complaint for illegal detainer that in spite
of demands made by the plaintiff the defendant has refused to re-
store the property is sufficient compliance with the jurisdictional/
88
requirement of previous demand.
y. Right of Lessor to Increase Rentals

89
In Inductivo v. Court of Appeals, the Supreme Court citing
90
Heirs ofFausta Dimaculangan v. IAC, ruled that when rentals are
paid monthly, a lease is deemed to be for a definite period expiring at
the end of every monthly period. The lessor is thus granted the right
to eject the lessee, being an excepted case under the Rental Control
Law, after prior notice of such termination and demand to vacate the
91
leased premises.
In such a case a demand to vacate is not necessary for judicial
92
action after the expiration of one month.
The lessor has the right to increase rentals after the expiration
of the lease and to evict the lessee who refuses to accept the new rate
86
L a n u z a v. Munoz, G.R. No. 147372, May 27, 2004, 4 2 9 SCRA 562.
ei
Supra.
66
Supra.
89
2 2 9 SCRA 380 (1994).
90
1 7 0 SCRA 389.
91
Vide Paterno v. Court of Appeals, 272 SCRA 770, May 29, 1997.
92
H e i r s of Manuel T. Suico v. Court of Appeals, G.R. No. 120615, January 2 1 ,
1 9 9 7 , 2 6 6 SCRA 444.
568
Sec. 2
without necessity of demand, provided that the same is not exorbi-

93
tant.
The court has no authority to fix rentals of lease that has been
94
extended but may determine if increase is reasonable or to extend
95
the lease with a fixed period.
But the court is without authority to fix the rents for the par-
ties where no valid demand for an increase has been made by the
96
lessor.
The court may, however, take judicial notice of the nature of
the leased properties and fix the reasonable value for the continued
use and occupancy of the leased premises after the termination of
97
the lease contract.
z. N o t i c e of Termination a n d to Vacate is to Make Ter-

m i n a t i o n Effective
It would seem that the notice and demand to vacate required
on a lease on a month-to-month period is to render effective the
termination of the lease upon the expiration of the month, and pre-
vent an implied renewal of the lease. This should be distinguished
from the demand to vacate as a condition precedent under Section 2
of Rule 70 where the action for unlawful detainer is based on a
violation of the terms of the lease. Such kind of demand is unneces-
sary where the lease contract is for a definite period.
Under Article 1670 of the Civil Code: "If at the end of the con-
tract the lessee should continue enjoying the thing leased for fifteen
days with the acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given, it is understood
that there is an implied new lease, not for the period of the original
contract. But for the time established in Articles 1682 and 1687."
93
Roxas v. Alcantara, 113 SCRA 21; United Realty Corporation v. Court of Ap-
peals, supra; Paterno v. Court of Appeals, G.R. No. 115763, 272 SCRA 770, May 29,
1997.
94
R o x a s v. Alcantara, 113 SCRA 21, supra.
95
S y Jueco v. Court of Appeals, 224 SCRA 390.
Âraos v. Court of Appeals, 232 SCRA 770, June 2, 1994.
97
Catungal v. Hao, 355 SCRA 29, March 22, 2001.
569
VOL. Ill
98
As pointed out in Chua v. Court of Appeals: The notice provi-
sion is the one given after the expiration of the lease period for the
purpose of aborting an implied renewal of the lease."
The Court, however, stressed that under the Revised Rules of
Court, demand to vacate is not required when the action is to termi-
nate the lease because of the expiration of its term. Upon the expira-
tion of the term, the tenant becomes a deforciant unlawfully with-
100
holding the property.
aa. P o w e r to Extend Lease

Article 1687 is explicit that if the period for the lease has not
been fixed, it is understood to be from month to month if the rent
agreed upon is monthly. However, even though a monthly rent is
paid, and no period for the lease has been set, the courts may fix a
longer term for the lease after the lessee has occupied the premises
for over a year. Thus, the provision contemplates two (2) situations.
One, where the period for the lease has not been fixed but the rent
agreed upon is monthly, in which event the period is understood to
be from month to month. In other words, the law itself fixes the
period. Two, where no period for the lease has been set, a monthly
rent is paid and the lessee has occupied the premises for over a year
authorizing the courts to fix a longer period of lease. In this second
situation, both circumstances mentioned in the first situation also
exist and coupled with another circumstance, i.e., the lessee has
occupied the premises for over a year. The law treats the matter
differently in the second situation because the length of stay of the
lessee in the premises may justify the courts to fix a longer period of
lease. The second situation is understood thus: where no period for
the lease has been set and a monthly rent is paid the law itself fixes
the period as monthly: yet, the circumstance that the lessee has
occupied the premises for over a year warrants the fixing of a longer
period bv the courts. It is precisely the second situation that is
98
G.R. No. L-106573, March 27, 1995, 60 SCAD 57, 242 SCRA 4 3 1 , 744.
"Gamboa's Incorporated v. Court of Appeals, 72 SCRA 131 (1976); Spouses Guda
v. Leyres, G.R. No. 143675, June 9, 2003; see also Labastida v. Court of Appeals, 287
SCRA 662; De Vera v. Court of Appeals, 260 SCRA 396; Dizon v. Magsaysay, 302 SCRA
288.
100
C h u a v. Court of Appeals, supra, citing Tolentino, Civil Code of the Philip-
pines 1992 and Co Tiamco v. Diaz, 75 Phil. 672 (1946).
570
involved in the present case, not the first situation, as all three (3)
lower courts erroneously appreciated. Apparently, to them since the
first sentence of Art. 1687 already fixed the period of lease, recourse
to the second sentence is no longer relevant.
The unilateral act of the lessor in terminating the lease should
not be recognized as writing finis to the agreement when the second
situation in Art. 1687 is involved. A contrary view would result in
barring recourse to judicial lengthening of the period and in allow-
ing the utilization as subterfuge of the concept that "once a period
101
had expired, nothing is left to extend."
The power of the court to extend the term of a lease under the
second sentence of Article 1687 of the Civil Code is potestative, or
more precisely, discretionary. As such, the Court is not bound to
extend it, and its exercise depends upon the circumstances sur-
rounding the case. However, it may grant a longer term where equi-
102
ties come to play. In Divino v. Marcos, in granting the extension of
the contract of lease, the Court considered the length of time that
petitioners therein have stayed in the premises, the fact that peti-
tioner already made substantial or additional improvements in the
property and the difficulty of looking for another place wherein peti-
tioner could transfer. The same guidelines may also be applied in
the present case.
Thus the Court deemed that an extension of the contract of
lease for another six (6) months from the finality of its decision is
enough to enable the petitioners to vacate the premises and look for
103
a new place to reside.
a a . l Limit of Authority of Court to Extend Period

The court has discretionary authority to fix a longer term of the
104
lease under Article 1687. But not when the lease is for a fixed
105
period that had already expired.
101
Eulogio "Eugui" Lo Chua v. Court of Appeals, 356 SCRA 753, April 19, 2001.
1 0 2
4 SCRA 187 (1962).
103
Arquelada v. Phil. Veterans Bank, 329 SCRA 536, March 31, 2000.
104
R o m a n Catholic Archbishop of Manila v. Court of Appeals, 269 SCRA 145,
March 3 , 1 9 9 7 .
lp6
Gindoy v. Tapucar, 75 SCRA 3.
571
VOL. Ill
bb. Other Cases

1. An action against the vendor who is still withholding pos-
session where the right to repurchase property has expired may
106
prosper as an unlawful detainer.
2. An unlawful detainer case and an action for reformation
107
of the deed of sale can proceed independently of each other.
3. There is no necessity of a new action for ejectment when
the final judgment in an unlawful detainer case states that the
defendant can continue occupying the land as long as she pays
monthly rental to the plaintiff and the defendant fails to pay such
108
rentals.
4. The remedy of tenants where the lessor refuses to make
an urgent repair of the leased premises is not to suspend rental
payments but to make the urgent repair themselves and charge the
109
cost thereof to the lessor under Article 1663 of the Civil Code.
5. An ejectment case for recovery of possession by a vendee
is premature where it was instituted prior to the actual partition of
the property among the heirs, where from the contending claims it
110
appears that they bought the same portion from different heirs.
6. Although the Government has no cause of action to re-
cover possession at the commencement of the action, since the lease
contract expired during pendency of appeal, the Supreme Court or-
111
dered execution.
7. The issue of whether private respondent had the right to
occupy subject apartment unit should be properly threshed out in an
ejectment case and not in an action for damages where the question
112
of possession is likewise the primary issue to be resolved.
106
107
J u d i t h v. Abragan, 66 SCRA 600 (1975).
108
Salomon v. Mendoza, 14 SCRA 867.
109
B a n z o n v. Court of Appeals, 94 SCRA 454.
110
Carvajal v. Court of Appeals, 112 SCRA 237.
m
R e p u b l i c v. Diaz, 92 SCRA 535.
112
Carlos v. Court of Appeals, 268 SCRA 25, Feb. 10, 1997.
572
Sec. 2
cc. Prior Physical P o s s e s s i o n Not Necessary in Unlaw-

ful D e t a i n e r
Prior possession is not always a condition precedent in unlaw-
113
ful detainer.
Petitioner insists t h a t he is entitled to the physical possession
of the property since he has been in actual, continuous possession
thereof as owner-mortgagor. He contends that private respondents
have never been in actual physical possession of the land since they
have not prayed for the issuance of a writ of possession with the
RTC where the case assailing the sale of the land was pending and
where the parties' adverse claims of ownership are being litigated.
The Court held petitioner's contentions untenable.
It is settled t h a t prior physical possession is indispensable only
in actions for forcible entry but not in unlawful detainer. Since we
have ruled t h a t the MTC case filed against petitioner is one for
unlawful detainer, petitioner's prior possession of the land is of no
moment. Private respondents are entitled to its possession from the
time title was issued in their favor as registered owners. An action
for unlawful detainer may be filed when possession by a landlord,
vendor, vendee or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or termi-
nation of their right to hold possession, by virtue of a contract,
114
express or implied.
P u r c h a s e r at Public Auction May File Unlawful Detainer

Under the Rules, if the mortgaged property is not redeemed
within one year from the foreclosure sale, the purchaser at public
115
auction is entitled to possession of the property. To obtain
possession, the vendee or purchaser may either ask for a writ of
possession or bring an appropriate independent action, such as a
suit for ejectment. The RTC case assailing the public auction sale of
the property and seeking annulment of mortgages did not preclude
113
m
D e la Paz v. Panis, 245 SCRA 242 (1995); Javelosa v. Court of Appeals,
SCRA 493, December 1 0 , 1 9 9 6 .
""Section 35, Rule 39, Revised Rules of Court.
573
VOL. Ill
116
the filing of an ejectment case against petitioner, the pendency of
an action for annulment of sale and reconveyance (which necessarily
involves the issue of ownership) may not be successfully pleaded in
abatement of an action for ejectment, the issue in the latter being
117
merely physical possession.
Failure to produce receipt of rents paid during alleged ten years
118
lease renders the claim of existence of a lease unbelievable.
dd. Non-payment of rentals as g r o u n d for ejectment

even if complaint is prematurely filed
It has been held that even assuming that the action for ejectment
was indeed prematurely filed in the court a quo, such will not in
anyway change the conclusion reached by this Court t h a t petition-
ers have established a right to evict private respondents from the
subject property for non-payment of rentals. For if the Court were to
dismiss petitioners' complaint based on this point, there would be
more than sufficient basis for petitioners to file another complaint
for ejectment against private respondents as delinquent lessees un-
der Sec. 5(b), Batas Pambansa Big. 877 in view of the latter's inex-
cusable failure to pay, deposit or consign for the account of petition-
ers monthly rentals since March 1986 up to the present. It must be
borne in mind that ejectment cases must be expeditiously resolved
and terminated. Certainly, it will serve the ends of justice for the
Court to promptly settle the issue of non-payment of rentals in the
case at bar, rather than to require the parties to litigate anew. Oth-
erwise, as the Court has had occasion to state, "further proceedings
will undoubtedly be only a waste of effort and time to the continuing
prejudice of the petitioners. It will only prolong the already unjusti-
fied stay of the private respondent(s) and provide (them) an unwar-
ranted excuse to remain in the leased premises, notwithstanding
their non-payment of the corresponding rentals for the past several
116
H e i r s of Francisco Guballa, Sr. v. Court of Appeals, 168 SCRA 518 (1988).
117
A s s e t Privatization Trust v. Court of Appeals, 229 SCRA 627 (1994); A n g Ping
v. RTC Manila, 154 SCRA 77 (1987); Drilon v. Gaurana, 149 SCRA 342 (1987); De la
Cruz v. CA, 133 SCRA520 (1984); Javelosa v. Court of Appeals, 265 SCRA493, December
10, 1996.
U8
C r u z v. Court of Appeals, 93 SCRA 619.
U 9
S p s . Emetrio and Lolita de Guzman v. Hon. Court of Appeals, 177 SCRA 604,
Sept. 15, 1989; Ipapo v. IAC, 147 SCRA 342 (1987).
574
SEC. 3. Summary procedure. Except in cases covered

by the agricultural t e n a n c y l a w s or w h e n the law otherwise
expressly provides, all actions for forcible entry and unlaw-
ful detainer, irrespective of t h e a m o u n t of damages or un-
paid rentals s o u g h t to be recovered, shall be governed by the
summary procedure h e r e u n d e r provided, (n)
This is a reiteration of Sec. 1 A(l) of the Revised Rule on Sum-

mary Procedure (RSP), but with the deletion of the limitation of the
award of attorney's fees. (Feria)
The subsequent sections were taken from the Revised Rule on
Summary Procedure (RSP).
The Rule on Summary Procedure applies only in cases filed
before the municipal trial courts pursuant to Section 36 of Batas
Pambansa Big. 129. Summary procedure have no application to cases
before the Regional Trial Courts. Hence, when the respondents ap-
pealed the decision of the municipal trial court to the Regional Trial
1
Court, the applicable rules are those of the latter court. It is thus
settled t h a t a motion for reconsideration may be filed from a deci-
sion of the Regional Trial Court in the exercise of its appellate juris-
2
diction over decisions of the inferior courts in ejectment cases.
SEC. 4. Pleadings allowed. The only pleadings allowed

to be filed are t h e complaint, compulsory counterclaim and
cross-claim p l e a d e d in t h e answer, a n d the answer thereto.
All pleadings shall be verified. (3a, RSP)
SEC. 5. Action on complaint. The court may, from an
e x a m i n a t i o n of t h e allegations in the complaint and such
e v i d e n c e as m a y be a t t a c h e d thereto, dismiss the case out-
right on any of t h e grounds for t h e dismissal of a civil action
w h i c h are apparent therein. If no ground for dismissal is
found, it shall forthwith issue summons, (n)
SEC. 6. Answer. - Within ten (10) days from service of
summons, the defendant shall file his answer to the com-
Uakihaca v. Aquino, 181 SCRA 67 (1990).

2
Refugia v. Court of Appeals, 258 SCRA 211, July 5, 1996.
575
VOL. Ill
plaint and serve a copy thereof on the plaintiff. Affirmative

and negative defenses not pleaded therein shall be d e e m e d
waived, except lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in
the answer shall be considered barred. The a n s w e r to coun-
terclaims or cross-claims shall be served and filed w i t h i n t e n
(10) days from s e r v i c e of t h e a n s w e r in w h i c h t h e y are
pleaded. (5, RSP)
COMMENT:
a. The filing of an answer within the reglementary period is
mandatory and is non-extendible. The word "shall" underscores the
mandatory character of the Rule. Giving the provisions a directory
application would subvert the nature of the Rule on Summary Pro-
cedure and defeat its objective of expediting the adjudication of suits.
1
To admit a late answer is to put premium on dilatory maneuvers.
b. Effect of Late A n s w e r Which R a i s e d Issue of Juris-

diction
The Revised Rule on Summary Procedure, as well as its pred-
ecessor, does not provide t h a t an answer filed after the reglementary
period should be expunged from the records. As a matter of fact,
there is no provision for an entry of default if a defendant fails to file
his answer. The defense of lack of jurisdiction should have been met
and ruled squarely by the court, as this may even be raised in a
motion to dismiss as an exception to the rule on prohibited pleadings
2
in the Revised Rule on Summary Procedure.
c. Parties are not prohibited from filing an answer with af-
firmative defenses in cases falling under summary procedure. How-
ever, the trial courts are enjoined from conducting a preliminary
hearing on such affirmative defenses to prevent unnecessary delay
in disposing the case on its merits. Under summary procedure adju-
dication of cases can be done on the basis of affidavits or other
evidence. The proceeding must be summary as possible in order not
to defeat the need to dispose ejectment cases in as fast a time as
^ a c h o n v. Devera, Jr., 274 SCRA 540, June 20, 1997.

2
Bayog v. Natino, 258 SCRA 378.
576
Sees. 4-6
possible. The reason is because cases involving possession of proper-

3
ties usually pose a threat to the peace of society.
4
In Adolfo Maceda v. Court of Appeals, it was held that the
Metropolitan Trial Court has no jurisdiction over a counterclaim for
the value of improvements over P20,000.00 and correspondingly, the
Regional Trial Court did not have appellate jurisdiction. The juris-
diction of the MTC in a civil action for sum of money (Maceda's
counterclaim for the value of his improvements is one such action) is
limited to a demand that "does not exceed twenty thousand pesos
exclusive of interest and costs but inclusive of damages of whatever
5
kind." A counterclaim in the municipal or city court beyond that
jurisdictional limit may be pleaded only by way of defense to weaken
6
the plaintiff's claim, but not to obtain affirmative relief.
COMPARE: Counterclaim for i m p r o v e m e n t compulsory

Citing and quoting Rule 9, Section 4 of the Revised Rules of
1
Court, the Supreme Court in Conjuangco v. Villegas, held that the
claim to recover the compensation for improvements made on the
land is essentially in the nature of a counterclaim since it is interwo-
ven with the fact of possession. Said claim for compensation should
have been presented as a counterclaim in the ejectment suit. It is
deemed barred if not raised on time and the party in error is pre-
cluded from setting it up in a subsequent litigation, x x x Simultane-
ously, with the assertion that she was entitled to the parcel of land
by inheritance, the alternative claim that assuming that she was
not legally entitled to the disputed lot, at least as a builder in good
faith, she has the right to the value of the buildings and improve-
ments which she and her parents had introduced on the land should
have been made.
Under the present Rule, the counterclaim 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 Regional Trial Court, the
3
Bayview Hotel, Inc. v. Court of Appeals, 273 SCRA 540, June 17, 1997.
4
1 7 6 SCRA 440 (1989).
5
Sec. 33, subparagraph 1, B.P. Big. 129.
6
See also Agustin v. Bacalan, 135 SCRA 340.
7
1 8 4 SCRA 374, April 17, 1990.
577
Sees. 7-8 REMEDIAL LAW Rule 7 0
VOL. Ill
counterclaim may be considered compulsory regardless of the

8
amount.
SEC. 7. Effect of failure to answer. Should the defend-

ant fail to answer the complaint w i t h i n the period above
provided, the court, motu proprio or on motion of the plain-
tiff, shall render judgment as may be warranted by the facts
alleged in the complaint and limited to w h a t is prayed for
therein. The court may in its discretion reduce the amount
of damages and attorney's fees claimed for b e i n g excessive
or otherwise unconscionable, w i t h o u t prejudice to the appli-
cability of Section 3(c), Rule 9 if there are t w o or more de-
fendants. (6, RSP)
SEC. 8. Preliminary conference; appearance of parties.
Not later t h a n thirty (30) days after t h e last a n s w e r is
filed, a preliminary conference shall be held. The provisions
of Rule 18 on pre-trial shall be applicable to t h e preliminary
conference unless i n c o n s i s t e n t w i t h t h e provisions of t h i s
Rule.
The failure of the plaintiff to a p p e a r in t h e preliminary
conference shall be c a u s e for t h e dismissal of h i s complaint.
The defendant w h o appears in t h e a b s e n c e of t h e plaintiff
shall be entitled to j u d g m e n t on h i s c o u n t e r c l a i m in accord-
ance w i t h the next p r e c e d i n g section. All cross-claims shall
be dismissed. (7, RSP)
If a sole defendant shall fail to appear, t h e plaintiff shall
likewise be entitled to j u d g m e n t in a c c o r d a n c e w i t h t h e n e x t
preceding section. This procedure shall not apply w h e r e o n e
of two or more defendants s u e d u n d e r a c o m m o n c a u s e of
action w h o h a d p l e a d e d a c o m m o n defense shall appear at
the preliminary conference, (n)
No postponement of t h e preliminary conference shall
be granted except for highly meritorious g r o u n d s a n d with-
out prejudice to s u c h sanctions as t h e court in t h e e x e r c i s e
of sound discretion m a y i m p o s e on the movant, (n)
'Sec. 7, Rule 6, Rules of Court.
578
Rule 70 FORCIBLE ENTRY A N D UNLAWFUL DETAINER Sees 9-10
COMMENT:
The last paragraph is new and replaces the former Sec. 5 of

Rule 70 which allows a continuance of not more than five days
unless the defendant posts a bond. The present rule totally prohibits
continuance of the preliminary conference except for highly merito-
rious grounds and without prejudice to sanctions as the court in the
exercise of sound discretion may impose on the movant.
SEC. 9. Record of preliminary conference. Within five

(5) days after t h e t e r m i n a t i o n of t h e preliminary conference,
t h e court shall i s s u e an order stating t h e matters taken up
therein, i n c l u d i n g but n o t limited to:
1. Whether t h e parties h a v e arrived at an amicable
settlement, a n d if so, t h e t e r m s thereof;
2. The stipulations or a d m i s s i o n s e n t e r e d into by the
parties;
3. Whether, on t h e basis of the pleadings and the stipu-
lations a n d a d m i s s i o n s m a d e by t h e parties, judgment may
be rendered without the n e e d of further proceedings, in which
e v e n t t h e j u d g m e n t shall be r e n d e r e d w i t h i n thirty (30) days
from i s s u a n c e of t h e order;
4. A clear specification of material facts w h i c h remain
controverted; a n d
5. S u c h other matters i n t e n d e d to expedite the dispo-
sition of the case. (8, RSP)
SEC. 10. Submission of affidavits and position papers.
Within t e n (10) days from receipt of t h e order mentioned in
the next p r e c e d i n g section, the parties shall submit the affi-
davits of their w i t n e s s e s a n d other evidence on the factual
issues defined in the order, together w i t h their position pa-
pers setting forth the l a w a n d the facts relied upon by them.
(9, RSP)
Notes:
The verified statement by the defendants that all the allega-
tions in the position paper are true and correct of their "own per-
579
VOL. Ill
sonal knowledge" constitutes the affidavit of witnesses required by

Rule 70 attaching thereto their documentary to their position wit-
ness, the requirements of Sections 10 and 14 are deemed satisfied.
1
There is no need of separate affidavits.
SEC. 11. Period for Rendition ofjudgment. Within thirty

(30) days after receipt of the affidavits and position papers,
or the expiration of the period for filing the same, the court
shall render judgment.
However, should the court find it n e c e s s a r y to clarify
certain material facts, it may, during the said period, issue
an order specifying the matters to be clarified, a n d require
the parties to submit affidavits or other e v i d e n c e on the said
matters within t e n (10) days from receipt of said order. Judg-
ment shall be rendered w i t h i n fifteen (15) days after t h e re-
ceipt of the last affidavit or the expiration of the period for
filing the same.
The court shall not resort to t h e foregoing procedure
just to gain time for the r e n d i t i o n of the judgment, (n)
SEC. 12. Referral for conciliation. Cases requiring re-
ferral for conciliation, w h e r e t h e r e is no s h o w i n g of compli-
ance with such requirement, shall be dismissed without preju-
dice, and may be revived only after that r e q u i r e m e n t shall
have b e e n complied w i t h . (18a, RSP)
SEC. 13. Prohibited pleadings and motions. The fol-
lowing petitions, motions, or p l e a d i n g s shall not be allowed:
1. Motion to d i s m i s s t h e c o m p l a i n t e x c e p t on t h e
ground of lack of jurisdiction over the subject matter, or
failure to comply w i t h s e c t i o n 12;
2. Motion for a bill of particulars;
3. Motion for n e w trial, or for reconsideration of a
judgment, or for r e o p e n i n g of trial;
4. Petition for relief from judgment;
'De la Rosa v. Carlos, 414 SCRA 226, October 23, 2004.
580
Rule 70 FORCIBLE ENTRY A N D UNLAWFUL DETAINER Sees 11-13
5. Motion for e x t e n s i o n of time to file pleadings, affi-

davits or any other paper; '
6. Memoranda;
7. P e t i t i o n for certiorari, mandamus, or prohibition
against a n y interlocutory order i s s u e d by the court;
8. Motion to declare t h e defendant in default;
9. Dilatory m o t i o n s for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
COMMENT:
Certiorari filed w i t h t h e Regional Trial Court is not per-
1
missible.
When the Revised Rule on Summary Procedure bars a petition
for relief from judgment, of a petition for certiorari, mandamus, or
prohibition against any interlocutory order issued by the court, it
has in mind no other than Section 1, Rule 38 regarding petitions for
relief from judgment, and Rule 65 regarding petitions for certiorari,
mandamus, or prohibition, of the Rules of Court, respectively. These
petitions are cognizable by Regional Trial Courts, and not by Metro-
politan Trial Courts, Municipal Trial Courts, or Municipal Circuit
Trial Courts. If Section 19 of the Revised Rule on Summary Proce-
dure and Rules 38 and 65 of the Rules of Court are juxtaposed, the
conclusion is inevitable that no petition for relief from judgment nor
a special civil action of certiorari, prohibition, or mandamus arising
from cases covered by the Revised Rule on Summary Procedure may
be filed with a superior court. This is but consistent with the man-
date of Section 36 of B.P. Big. 129 to achieve an expeditious and
inexpensive determination of the cases subject of summary proce-
2
dure.
'Bayview Hotel, Inc. v. Court of Appeals, 273 SCRA 540, June 17, 1997.
2
P a y o g v. Natino, 258 SCRA 397.
581
VOL. Ill
EXCEPTION
Nevertheless, in view of the unusual and peculiar circumstances
of a case, unless some form of relief is made available to defendant
the grave injustice and irreparable injury that visited him through
no fault or negligence on his part will only be perpetuated, the Court
treated pro hac vice the petition for relief from judgment which
defendant filed either as an exception to the rule, or a regular appeal
to the RTC, or even an action to annul the order (decision) of the
3
MCTC.
SEC. 14. Affidavits. The affidavits required to be sub-

mitted under this Rule shall state only facts of direct per-
sonal knowledge of t h e affiants w h i c h are admissible in evi-
dence, and shall s h o w their c o m p e t e n c e to testify to t h e mat-
ters stated therein.
A violation of this requirement m a y subject t h e party or
the counsel w h o submits the s a m e to disciplinary action, a n d
shall be cause to e x p u n g e t h e inadmissible affidavit or por-
tion thereof from t h e record. (20, RSP)
COMMENT:
The verified statement by the defendants that all the allega-
tions in the position paper are true and correct of their "own per-
sonal knowledge" constitutes the affidavit of witnesses required by
Rule 70 attaching thereto their documentary to their position wit-
ness, the requirements of Sections 10 and 14 are deemed satisfied.
1
There is no need of separate affidavits.
SEC. 15. Preliminary injunction. The court m a y grant

preliminary injunction, in a c c o r d a n c e w i t h t h e provisions of
Rule 58 hereof, to p r e v e n t t h e defendant from c o m m i t t i n g
further acts of d i s p o s s e s s i o n against t h e plaintiff.
3
Bayog v. Natino, 258 SCRA 397.
'De la Rosa v. Carlos, G.R. No. 147549, October 23, 2004, 414 SCRA 226.
582
Sec. 15
A possessor deprived of h i s possession through forcible

entry or unlawful detainer may, w i t h i n five (5) days from the
filing of t h e complaint, p r e s e n t a motion in the action for
forcible entry or unlawful detainer for the issuance of a writ
of preliminary m a n d a t o r y injunction to restore him in his
possession. The court shall d e c i d e t h e motion within thirty
(30) days from the filing thereof. (3a)
COMMENT:
1. Source of Rule
SEC. 3. Preliminary injunction. The court may grant pre-

liminary injunction, in accordance with the provisions of Rule 58
hereof, to prevent the defendant from committing further acts of dis-
possession against the plaintiff.
may within ten (10) days from the filing of the complaint present a
motion to secure from the competent court, in the action for forcible
entry, a writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty (30)
days from the filing thereof.
This is based on Sec. 3 of the former rule with the modification
1
that it is also applicable to cases of unlawful detainer. The period
during which the petition may be filed was reduced to five days.
Under the Civil Code. Every possessor has a right to be re-
spected in his possession; and should he be disturbed therein he
shall be protected in or restored to said possession by the means
established by the laws and the Rules of Court. (Art. 539)
'Sec. 33 of BP 129; Day v. Regional Trial Court of Zamboanga, 191 SCRA 610,
617. (Feria).
583
VOL. Ill

may within ten days from the filing of the complaint present a mo-
tion to secure from the competent court, in the action for forcible
entry, a writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty (30)
2
days from filing thereof.
In ejectment cases where an appeal is taken the remedy granted
in Article 539, second paragraph, shall also apply, if the highest
court is satisfied that the lessee's appeal is frivolous or dilatory, or
that the lessor's appeal is prima facie meritorious. The period of ten
(10) days referred to in the article shall be counted from the time the
appeal is perfected. (Art. 1874)
A motion for preliminary mandatory injunction should be re-
3
solved with dispatch.
Section 33 of B.P. 129 allows the plaintiff in an unlawful de-
tainer action to apply for a writ of preliminary injunction. With the
advent of B.P. 129, Art. 539 of the New Civil Code, Sec. 88 of the
Judiciary Act of 1948, and Sec. 3, Rule 70 of the Rules of Court have
been substantially modified. B.P. 129 provides: "provided the main
action is within its jurisdiction, an inferior court can appoint a re-
ceiver and it has jurisdiction to issue a writ of preliminary injunc-
4
tion in either forcible entry or unlawful detainer cases." "Under the
present law, an inferior court has jurisdiction to grant provisional
remedies in proper cases. These proper cases would be:
1) Preliminary attachment under Rule 57, provided the prin-
cipal action is within its jurisdiction, such as an action of forcible
entry and unlawful detainer.
2) Preliminary injunction under Rule 58 in both forcible en-
try and unlawful detainer also in cases mentioned in the preceding
5
paragraph."
2
Ibid.
S a l v a d o r v. Salamanca, 144 SCRA 276.
"REGALADO LAW COMPENDIUM, SECOND REVISED EDITION, p. 33.
5
D e a n Jose Y. Feria, Phil. Legal Studies, Series No. 1, the Judiciary Reorgani-
zation Act of 1980, 1981 edition, pp. 43-44; Day v. RTC of Zamboanga City, Br. XIII,
191 SCRA 610; Sec. 15, Rule 70, 1997, Rules on Civil Procedure.
584
Sec. 16
SEC. 16. Resolving defense of ownership. When the

defendant raises the defense of o w n e r s h i p in his pleadings
a n d the question of p o s s e s s i o n cannot be resolved without
deciding the issue of o w n e r s h i p , the issue of ownership shall
be resolved only to d e t e r m i n e t h e issue of possession. (4a)
COMMENT:
1. Source of Rule
Taken from Section 4 of the Former Rule which reads:
SEC. 4. Evidence of title, when admissible. Evidence of title

to the land or building may be received solely for the purpose of
determining the character and extent of possession and damages for
detention.
a. R e s o l u t i o n of Issue of Ownership
Under the Judiciary Reorganization Act, the issue of owner-
ship shall be resolved only to determine the issue of possession:
Provided, The defendant raises the issue of ownership in the plead-
ings and (2) The question of possession cannot be resolved without
1
deciding issue of ownership.
Jurisdiction of the MTC in Forcible Entry and Unlawful De-
tainer Cases TO PROVISIONALLY RESOLVE ISSUE OF OWNER-
SHIP
a. Inferior courts h a v e jurisdiction to resolve ques-

tion of o w n e r s h i p raised in ejectment case; Guidelines
By virtue of the express mandate set forth in Section 33(2) of
BP Big. 129, inferior courts have jurisdiction to resolve the question
of ownership raised as an incident in an ejectment case where a
determination thereof is necessary for a proper and complete adjudi-
'Sec. 33(2), BP Big. 129.
585
VOL. Ill
cation of the issue of possession. Its decision does not, however bind
2
the title or affect the ownership of the land or building.
Prior to the effectivity of Batas Pambansa Big. 129, the juris-
diction of inferior courts was confined to receiving evidence of own-
ership in order to determine only the nature and extent of posses-
sion, by reason of which such jurisdiction was lost the moment it
becomes apparent that the issue of possession was intricately inter-
woven with that of ownership. The law, as revised, now provides
instead that when the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession. On its face, the
new Rule on Summary Procedure was extended to include within
the jurisdiction of the inferior courts ejectment cases which likewise
involve the issue of ownership. This does not mean, however, that
blanket authority to adjudicate the issue of ownership in ejectment
3
suits has been conferred on the inferior courts.
The resolution of this particular issue concerns and applies
only to forcible entry and unlawful detainer cases where the issue of
possession is intimately interwoven with the issue of ownership. It
finds no proper application where it is otherwise, that is, where
ownership is not in issue, or where the principal and main issue
raised in the allegations of the complaint was well as the relief
prayed for make out not a case for ejectment but one for recovery of
ownership.
In making distinctions between the reception of evidence and
the resolution of the issue of ownership t h a t the inferior court may
look into the evidence of title or ownership and possession de jure
insofar as said evidence would indicate or determine the nature of
possession. It cannot, however, resolve the issue of ownership, that
is, by declaring who among the parties is the true and lawful owner
of the subject property, because the resolution of said issue would
effect an adjudication on ownership which is not sanctioned in the
2
See Del Mundo v. Court of Appeals, 252 SCRA 432, Jan. 2 9 , 1 9 9 6 ; Vide Heirs of
Placido Miranda v. Court of Appeals, 255 SCRA 368, March 2 9 , 1 9 9 6 ; Hilario v. Court
of Appeals, 260 SCRA 420, Aug. 7, 1996.
3
Refujia v. Court of Appeals, 258 SCRA 211, July 5, 1996; See also Boy v. Court
of Appeals, 427 SCRA 196, April 14, 2004; Agag v. Alpha Financing Corp., G.R. No.
154826, July 3, 2004.
586
Sec. 16
summary nature for unlawful detainer . . . with this as a premise

and taking into consideration the amendment introduced by Batas
Pambansa Big. 129, inferior courts are now conditionally vested
with adjudicatory power over the issue of title or ownership raised
4
by the parties in an ejectment suit.
b. Certain guidelines, however, must be observed in the im-
plementation of this legislative prescription, viz.:
1. The primal rule is that the principal issue must be that of
possession, and that ownership is merely ancillary thereto, in which
case the issue of ownership may be resolved but only for the purpose
of determining the issue of possession. Thus, the legal provision
under consideration applies only where the inferior court believes
and the preponderance of evidence shows that a resolution of the
issue of possession is dependent upon the resolution of the question
of ownership.
2. It must sufficiently appear from the allegations in the
complaint t h a t what the plaintiff really and primarily seeks is the
restoration of possession. Consequently, where the allegations of the
complaint as well as the reliefs prayed for clearly establish a case for
the recovery of ownership, and not merely one for recovery of posses-
sion de facto, or where the averments plead the claim of material
possession as a mere elemental attribute of such claim for owner-
ship, or where the issue of ownership is the principal question to be
resolved, the action is not one for forcible entry but one for title to
real property.
4. The inferior court cannot adjudicate on the nature of own-
ership where the relationship of lessor and lessee has been suffi-
ciently established in the ejectment case, unless it is sufficiently
established that there has been a subsequent change in or termina-
tion of that relationship between the parties. This is because under
Section 2(b), Rule 131 of the Rules of Court, the tenant is not permit-
ted to deny the title of his landlord at the time of the commencement
of the relation of the landlord and tenant between them.
5. The rule in forcible entry cases, but not in those for un-
lawful detainer, is that a party who can prove prior possession can
recover such possession even against the owner himself. Regardless
4
D e la Santa v. Court of Appeals, et al., 140 SCRA 44 (1985).
587
VOL. Ill
of the actual condition of the title to the property and whatever may
be the character of his prior possession, if he has in his favor priority
in time, he has the security that entitles him to remain on the
property until he is lawfully ejected by a person having a better
right through an accion publiciana or accion reivindicatoria. Corol-
lary, if prior possession may be ascertained in some other way, then
the inferior court cannot dwell upon or intrude into the issue of
ownership.
a. Where the question of who has prior possession hinges on
the question of who the real owner of the disputed portion is, the
inferior court may resolve the issue of ownership and make a decla-
ration as to whom among the contending parties is the real owners.
b. In the same vein, where the resolution of the issue of
possession hinges on a determination of the validity and interpreta-
tion of the document of title or any other contract on which the claim
of possession is premised, the inferior court may likewise pass upon
these issues. This is because, and it must be so understood, that any
such pronouncement made affecting ownership of the disputed por-
tion is to be regarded merely as provisional, hence, does not bar nor
prejudice an action between the same parties involving title to the
land. Moreover, Section 7, Rule 70 of the Rules of Court expressly
provides that the judgment rendered in an action for forcible entry
or unlawful detainer shall be effective with respect to the possession
only and in no wise bind the title or affect the ownership of the land
5
or building. [Citations omitted.]
Thus, in an action for forcible entry, any pronouncement made
affecting ownership is regarded merely as provisional, hence, does
not bar nor prejudice an action between the same parties involving
6
title to the land.
SEC. 17. Judgment. If after trial t h e court finds that

the allegations of t h e complaint are true, it shall render judg-
m e n t in favor of t h e plaintiff for t h e r e s t i t u t i o n of t h e
premises, the s u m justly due as arrears of rent or as reason-
able compensation for the use and occupation of the premises,
5
Spouses Refugia v. Court of Appeals, 258 SCRA 211, July 5, 1996.
6
Semira v. Court of Appeals, 230 SCRA 577 (1994).
588
Sec. 17
attorney's fees a n d costs. If it finds that said allegations are

not true, it shall r e n d e r j u d g m e n t for the defendant to re-
cover h i s costs. If a counterclaim is established, the court
shall r e n d e r j u d g m e n t for the s u m found in arrears from
either party a n d a w a r d costs as justice requires. (6a)
COMMENT:
1. C h a n g e s in the Rule
This is a restatement of Sec. 6 of the former rule with an added
provision for attorney's fees (Feria) and the following proviso: "If it
finds that said allegations are not true, it shall render judgment for
the defendant to recover his costs."
a. D a m a g e s Recoverable in Ejectment cases
(1) The only damage that may be recovered in a forcible entry
and unlawful detainer cases is the fair rental value or the reason-
able compensation for the use and occupation of the leased prop-
1
erty.
(2) A damage other than reasonable rentals or fair rental
value are not recoverable in an ejectment case. Other damages must
2
be claimed in an ordinary action. But while actual, moral and exem-
3
plary damages are not permissible, a counterclaim for moral and
4
exemplary damages within the court's jurisdiction is permissible.
(3) Summary judgment is proper where payments of rents
5
and default are admitted.
(4) Temperate damages are neither "rents" nor "reasonable
compensation" for the use and occupation of the premises "nor fair
rental value" and was disallowed were the agreed rental itself was
6
already adjudged.
'Araos v. Court of Appeals, 232 SCRA 770 (1994); Catungal v. Hao, 355 SCRA
29, March 22, 2001, applying also the legal concept of judicial notice on the nature of
the leased property.
2
Felisilda, et al. v. Villanueva, 139 SCRA 432, Oct. 29, 1985.
3
B a e n s v. Court of Appeals, 125 SCRA 634.
4
Agustin v. Bacalan, 135 SCRA 340.
6
Bautista v. Gonzales, 78 Phil. 390.
6
Reyes v. Court of Appeals, 38 SCRA 138.
589
VOL. Ill
b. Attorney's Fees may be Awarded in Ejectment Cases

The award of attorney's fees in ejectment cases has been up-
held where the provisions of Article 2208 of the New Civil Code are
7
applicable. In the latter case, it was even the Supreme Court which
fixed the amount of attorney's fees. And in the case of Baens v. Court
8
of Appeals, the Supreme Court eliminated the award of actual, moral
and exemplary damages in an ejectment case, but not the award of
9
attorney's fees. However, in Gozon v. Vda. de Barrameda, liquidated
damages for breach of contract of lease was allowed in an unlawful
detainer case.
SEC. 18. Judgment conclusive only on possession; not con-

clusive in actions involving title or ownership. The judg-
ment rendered in an action for forcible entry or detainer
shall be conclusive w i t h respect to t h e p o s s e s s i o n only a n d
shall in no w i s e bind t h e title or affect t h e o w n e r s h i p of the
land or building. S u c h j u d g m e n t shall not bar an a c t i o n be-
t w e e n the s a m e parties r e s p e c t i n g title to t h e l a n d or build-
ing.
The j u d g m e n t or final order shall be appealable to t h e
appropriate Regional Trial Court w h i c h shall decide the same
on the basis of t h e entire record of t h e p r o c e e d i n g s h a d in
the court of origin a n d s u c h m e m o r a n d a and/or briefs as
may be submitted by t h e parties or r e q u i r e d by t h e Regional
Trial Court. (7a)
COMMENT:
1. Source of Rule
SEC. 7. Judgment conclusive only on possession; not conclusive

in actions involving title or ownership. The judgment rendered in
an action for forcible entry or detainer shall be effective with respect
to the possession only and in no wise bind the title or affect the
7
Ramirez v. Chit, 21 SCRA 1364; Reyes v. Court of Appeals, 38 SCRA 138.
8
1 2 5 SCRA 634.
8
11 SCRA 376.
590
Sec. 18
ownership of the land or building. Such judgment shall not bar an

action between the same parties respecting title to the land or build-
ing, nor shall it be held conclusive of the facts therein found in a case
between the same parties upon a different cause of action not involv-
ing possession.
The proviso "nor shall it be held conclusive of the facts therein
found in a case between the same parties upon a different cause of
action not involving possession" was deleted, because it is not in
1
accord with the principle of"conclusiveness of judgment."
The authority of the Municipal Trial Court to provisionally
decide the issue of ownership in an ejectment case is only to deter-
mine the question of possession. Such judgment shall not bar an
action between the same parties respecting title to the land or build-
ing, nor shall it be conclusive of the facts therein found in the case
between the same parties upon a different cause not involving pos-
session. The substantive issues of filiation an allegation of fraud in
the settlement of the estate should be ventilated in that forum and
2
not in the excitement suit.
a. Limited Rule on Conclusiveness of Judgment

The judgment is still conclusive only with respect to the issue
of possession of the premises but not with respect to ownership or
3
other facts.
It is conclusive with respect to the right of possession under
and by virtue of a contract the existence of which has been proved in
4
the ejectment suit.
5
In Medina v. Valdellon, it was held that an action for unlawful
detainer cannot be barred by the pendency of a Land Registration
Case between the same parties.
'See discussion under Sec. 47(c), Rule 39, Vol. II, Remedial Law.
2
Pengson v. Ocampo, Jr., 360 SCRA 420, June 29, 2001.
'Dante and Palomar v. Sison, 174 SCRA 517 (1989); Vide del Rosano v. Court
Appeals, 241 SCRA 519 (1995).
Penalosa v. Tuason, 22 Phil. 303.
6
6 3 SCRA 278.
591
VOL. Ill
In an action for forcible entry, any pronouncement made affect-

ing ownership is regarded merely as provisional, hence, does not bar
nor prejudice an action between the same parties involving title to
6
the land.
b. DARAB Without Jurisdiction To R e v i e w Final Judg-
ments of MTC or RTC
A final judgment cannot be modified by any court, let alone by
a quasi-judicial administrative body. It is "immutable and unalter-
able, and hence may no longer be modified in any respect. Petition-
er's normal recourse should have been to appeal the RTC Decision to
the CA and then, if necessary, to the Supreme Court for review.
Because the trial court Decision was already final, it could not, as a
rule, be altered or questioned.
More significantly, the Court has held that a final judgment
can no longer be reviewed, or in any way modified directly or indi-
rectly, by a higher court, not even by the Supreme Court, "much less
by any other official, branch or department of Government." This
particular injunction against administrative bodies is based on the
principle of separation of powers, which presupposes mutual respect
by and between the three departments of the government.'' The
DARAB, which is under the Department of Agrarian Reform in the
executive branch, must accord due respect to the MCTC and the
RTC, which are both instrumentalities of the judiciary. In any event,
the jurisdiction of the DARAB is merely to "determine and adjudi-
cate agrarian reform matters." Nothing in its charter confers upon it
7
the power to review findings of courts.
c. Against w h o m is J u d g m e n t B i n d i n g
The judgment is binding against the parties and all persons
claiming under them, viz.:
(1) Trespassers, squatters, or agents of the defendant fraudu-
8
lently occupying the property to frustrate the judgment.
6
Semira v. Court of Appeals, 230 SCRA 577 (1994).
7
Celendro v. Court of Appeals, 310 SCRA 835, July 20, 1999.
"Santiago v. Sheriff of Manila, 77 Phil. 740.
592
(2) Guests or other occupant of the premises with the permis-

9
sion of the defendant.
10
(3) Transferees Pendente lite.
11
(4) Sublessees.
(5) Members of the family, relatives and other privies of the
12
defendant.
In the foregoing situations a person who was not a party in the
ejectment case is bound by the judgment, even if they were not
13
formally impleaded as parties to the case.
d. Not b i n d i n g against non-parties

(1) An alias writ of execution cannot legally be issued against
14
respondent-lessees who are not parties to the case.
(2) A writ of possession and order of demolition directed
against persons who were not parties are void. They should be heard
first before they are ejected. The Supreme Court ordered a hearing
15
in the same case as a proceeding Supplementary to execution.
16
(3) Ayog v. Cusi, Jr., a judgment in an ejectment case cannot
17
be enforced against persons who were not defendants.
Vasquez, J., clarified in his concurrence that they refer to those
who do not derive right from defendants.
e. The MTC is, however without jurisdiction where the
ground for ejectment would involve a consideration of the rights and
obligations of the parties in a sale of real estate under PD 957 which
9
Gozon v. De la Rosa, 77 Phil. 919.
10
P l a n a s v. Madrigal, 94 Phil. 754 (1954).
u
G o King v. Geronimo, 81 Phil. 445; Guevarra Realty, Inc. v. Court of Appeals,
G.R. No. 57469, April 15, 1988, 160 SCRA 478.
12
Ariem v. delos Angeles, 49 SCRA 343.
13
Equitable Bank v. Ku, 355 SCRA309, March 26, 2001; Sunflower Neighborhood
Association v. Court of Appeals, 410 SCRA 318, September 3, 2003.
"Asuncion v. Plan, 103 SCRA 181.
15
Perater v. Rosete, 129 SCRA 508.
1B
118 SCRA 492.
17
Vide Sy v. Habacon Garayblas, 228 SCRA 664 (infra).
593
VOL. Ill
falls under the jurisdiction of the HLURB and consequently is also

18
without jurisdiction to award counterclaim.
f. Power of Court in Ejectment Case to Decide Issue
of Builder in Good Faith
19
In Tayag, et al. v. Yuseco, et al., the Supreme Court held:
Petitioners claim that the Court of First Instance and the Court
of Appeals lacked jurisdiction to decide the case as they did for the
reason that the only issue involved in an ejectment case is actual
possession and that under the Rule 70, Section 6, the only judgment
that may be rendered in such a case is for the defendant to recover
costs in the event that the court finds the complaint is not true, or if
it finds the complaint to be true to render judgment for the plaintiff
for the restitution of the premises, for the sum justly due as arrears
of rent or as reasonable compensation for the use and occupation of
the premises, and for costs. But according to petitioners, in spite of
this legal provision both courts went further and applied the provi-
sion of Article 448 of the new Civil Code.
In theory, and speaking of ordinary ejectment cases, petition-
ers may be right; that is to say, if the lessee or occupant has not built
anything on the premises, payment of rent would be a valid and
satisfactory solution of the problem; but where the occupant has
built on the land, especially where said building is substantial and
valuable, the courts even in ejectment cases are bound to take cogni-
zance of said fact and when they find t h a t the construction or plant-
ing had been effected in good faith, instead of dismissing the com-
plaint and suggesting to the parties to observe and follow the provi-
sions of Article 361 or Article 448 of the old and the new Civil Code of
the Philippines, respectively, and if they cannot agree, to file a new
action, not only to enforce or defend the respective rights of the
parties but to assess the value of the land and of the improvement as
well, the courts in order to avoid multiplicity of actions and to ad-
minister practical and speedy justice may, as was done in this case,
apply the provisions of the Civil Code relative to builders specially
since there is no question as to the ownership of the land as shown
by the certificates of title, and the ownership of the buildings.
'Francel Realty v. Court of Appeals, 252 SCRA 127, Jan. 22, 1996.
'97 Phil. 712.
594
Sec. 18
20
In Alvir v. Vera, the Supreme Court held that as an incident to
the main issue of possession de facto the inferior court can decide if
the defendant has built on the land a substantial and valuable build-
ing and there is no dispute between the parties as to the ownership
of the land and building, their rights according to the Civil Code.
g. Limited jurisdiction in ejectment cases

21
However, in Depra v. Dumlao, the Supreme Court addressing
itself to the question of the Decision of the Municipal Court ordering
a forced lease between the parties after finding that the defendant
was a builder in good faith on portion of plaintiff's property, held
t h a t the decision is null and void. Said the Court: "The judgment in
22
a detainer case is effective in respect of possession only. The Mu-
nicipal Court over stepped its bounds when it imposed upon the
parties a situation of forced lease, which like "forced ownership is
not favored in law." Furthermore a lease is an interest in real prop-
erty, jurisdiction over which belongs to the Court of First Instance x
x x. Since the Municipal Court acted without jurisdiction, its deci-
sion was null and void and cannot operate as res judicata to the
subject complaint for quieting of title. Besides, even if the decision
were valid, the rule on res judicata would not apply due to the
difference in cause of action. In the Municipal Court, the cause of
action was the deprivation of possession while in the action to quiet
title; the cause of action was based on ownership. Furthermore, Sec.
7 Rule 70 of the Rules of Court explicitly provides that judgment in a
detainer case "shall not bar action between the same parties re-
specting title to the land."
h. Lessee h a s No Right of Retention

A lessee is not a possessor in good faith and therefore has no
right to retain possession of the premises pending reimbursement of
23
his improvements on the leased premises. No mere lessee can claim
24
to be a possessor in good faith.
20
1 3 0 SCRA 357 (1984).
21
1 3 6 SCRA 475.
22
S e c . 7 (now Section 18), Rule 70, Rules of Court.
23
Maceda v. Court of Appeals, 176 SCRA 440, Supra.
24
Art. 546, Civil Code; Eusebio v. IAC, 144 SCRA 154; De Laureano v. Adil,
SCRA 148.
595
VOL. Ill
Where the lessee has built in good faith their house on the
leased subject property Article 1678 of the New Civil Code governs
the parties' rights thereto. The new lessors have the option to appro-
priate the house and other useful improvements by paying the les-
see one half of their value, but the latter do not have the right to
compel the lessors to appropriate the improvements and make reim-
bursement, nor to retain possession of the subject property until
reimbursement. Their right under the law is the removal of the
house and other useful improvements in the event that the lessor
refuse to reimburse the above amount. As regards ornamental ob-
jects, the lessee may remove the same provided that no damage is
caused to the principal thing and the lessor do not choose to retain
25
them by paying their value at the time the lease is extinguished.
26
In Suico v. Court of Appeals, the lessees were given the right
to remove their house from the leased lot within sixty days from
finality of the decision, unless within the same period the lessors,
exercise their option under Article 1678 of the Civil Code by paying
the lessees one of the value of the house, and should the parties be
unable to agree on such value, the trial court shall receive the evi-
dence thereon and resolve the same.
SEC. 19. Immediate execution of judgment; how to stay

same. If j u d g m e n t is r e n d e r e d against t h e defendant, ex-
ecution shall issue immediately u p o n motion, u n l e s s an ap-
peal has b e e n perfected a n d t h e defendant to stay e x e c u t i o n
files a sufficient s u p e r s e d e a s bond, a p p r o v e d by t h e Munici-
pal Trial Court and e x e c u t e d in favor of t h e plaintiff to pay
the rents, damages, a n d c o s t s a c c r u i n g d o w n to the time of
the judgment appealed from, and unless, during the p e n d e n c y
of the appeal, he deposits w i t h the appellate court the amount
of rent due from time to time u n d e r t h e contract, if any, as
determined by the j u d g m e n t of t h e Municipal Trial Court. In
the absence of a contract, he shall deposit w i t h t h e Regional
Trial Court the reasonable v a l u e of t h e u s e a n d occupation
of the premises for the p r e c e d i n g m o n t h or period at the rate
25
G u z m a n v. Court of Appeals, 177 SCRA 604 (1989); See also Gabrito v. Court
of Appeals, 167 SCRA 771 (1988); Spouses Lopez v. Sarabia, G.R. No. 140357, Septem-
ber 24, 2004, 439 SCRA 35.
26
2 6 6 SCRA 444, January 21, 1997.
596
determined by t h e j u d g m e n t of t h e lower court on or before

the t e n t h day of e a c h s u c c e e d i n g m o n t h or period. The su-
p e r s e d e a s b o n d shall be transmitted by the Municipal Trial
Court, w i t h the other papers, to t h e clerk of the Regional
Trial Court to w h i c h t h e action is appealed.
All a m o u n t s so p a i d to t h e appellate court shall be de-
p o s i t e d w i t h said court or authorized government deposi-
tary bank, a n d shall be h e l d there until the final disposition
of t h e appeal, u n l e s s t h e court, by a g r e e m e n t of the inter-
e s t e d parties, or in t h e a b s e n c e of reasonable grounds of
opposition to a m o t i o n to withdraw, or for justifiable rea-
sons, shall d e c r e e o t h e r w i s e . Should t h e defendant fail to
m a k e t h e p a y m e n t s above prescribed from time to time dur-
i n g t h e p e n d e n c y of t h e appeal, t h e appellate court, upon
m o t i o n of t h e plaintiff, a n d u p o n proof of s u c h failure, shall
order t h e e x e c u t i o n of t h e j u d g m e n t appealed from with re-
spect to t h e restoration of possession, but s u c h execution
shall n o t be a bar to t h e appeal t a k i n g its course until the
final disposition thereof on t h e merits.
After t h e c a s e is d e c i d e d by t h e Regional Trial Court,
any m o n e y p a i d to t h e court by t h e defendant for purposes of
t h e stay of e x e c u t i o n shall be disposed of in accordance with
t h e provisions of t h e j u d g m e n t of t h e Regional Trial Court.
In any c a s e w h e r e i n it appears that the defendant has been
deprived of t h e lawful p o s s e s s i o n of land or building pend-
ing the appeal by virtue of t h e e x e c u t i o n of t h e judgment of
the Municipal Trial Court, d a m a g e s for such deprivation of
p o s s e s s i o n a n d restoration of p o s s e s s i o n may be allowed the
defendant in t h e j u d g m e n t of the Regional Trial Court dis-
p o s i n g of t h e appeal. (8a)
COMMENT:
1. Source of Rule
Taken from Section 8 of the Former Rule.
2. Changes in Rule
Under the present Rule immediate execution shall be "upon
motion"
597
VOL. Ill
The phrase "of which the defendant shall have notice," was
deleted from second paragraph as a surplusage.
If the case is tried on its merits in the Court of First Instance,
was deleted in the opening statement of the last paragraph since
there is no trial on the merits on appealed cases to the Regional
Trial Court.
The bond shall be transmitted by the justice of the peace or the
municipal court, with the other papers, to the clerk of the Court of
First Instance to which the action is appealed was deleted from the
third paragraph as a surplusage.
"Restoration of possession may be allowed the defendant
in the judgment of the Regional Trial Court disposing of the
appeal"was added wherein it appears that the defendant has been
deprived of the lawful possession of land or building pending the
appeal by virtue of the execution of the judgment of the justice of the
peace or municipal court.
Section 8, Rule 70, of the Rules of Court provides t h a t immedi-
ate execution in ejectment cases is proper if the judgment is in favor
of the plaintiff. It can be stayed by the defendant only by perfecting
an appeal, filing a supersedeas bond, and making a periodic deposit
of the rental or the reasonable compensation for the use and occu-
1
pancy of the property during the pendency of the appeal. Thus, if
defendant fails to comply with all these requisites, the trial court
upon motion of the plaintiff with notice to the defendant and upon
proof of such failure can order the immediate execution of the ap-
pealed decision. The deposit, like the supersedeas bond, is a manda-
tory requirement so t h a t if this is not completed with, execution will
ensue as a matter of right. This cannot be stayed unless there is a
showing of the existence of fraud, accident, mistake or excusable
negligence which prevented the defendant from making the monthly
deposit or that supervening events which have brought about a ma-
terial change in the situation of the parties have occurred in the
2
meantime.
^ a l a n Realty Corp. v. Arranz, 237 SCRA 770, 27 October 1994.

2
C h u a v . Court of Appeals, 271 SCRA 546, April 18, 1997.
598
Sec. 19
a. There must first be Notice of Judgment

Before the judgment may be executed the defendant must
3
first be notified of the decision However, while formal service of
the judgment is indeed necessary as a rule, this is no longer neces-
sary where a motion for reconsideration of the decision was filed
which would indicate t h a t defendants were already informed of such
4
decision.
b. Motion Must be w i t h N o t i c e
The writ of execution may only be issued after notice of the
5
motion to the adverse party.
Defendant must be given reasonable time to vacate by Sheriff
enforcing the writ normally three to five days citing Section 10,
6
Rule 39.
Under the Rules on Summary Procedure, the decision of the
RTC in civil cases governed by this Rule, including forcible entry
and unlawful detainer, is immediately executory without prejudice
to a further appeal t h a t may be taken therefrom. The judgment of
the RTC being final and executory the filing of the Petition for Re-
7
view was proper.
c. R e q u i s i t e s to Stop E x e c u t i o n
To stay execution in an ejectment suit, the defendant should:
1. Perfect appeal to the Regional Trial Court;
2. File supersedeas bond; and
3. Deposit current rentals or reasonable compensation for
8
the use and occupation of the premises.
3
D y v. Court of Appeals, 195 SCRA 585 (1991).
S a n t i a g o v. Guadiz, 206 SCRA 590 (1992).
5
K a w v. Judge Anunciacion, 242 SCRA 1, March 1, 1995.
6
Manuel v. Escalante, 387 SCRA 239, August 13, 2002.
7
Spouses Virgilio and Josie Jimenez v. Patricia, Inc., 340 SCRA 525, Sept. 18,
2000.
"Hualam Construction and DeVt Corp. v. Court of Appeals, 214 SCRA 612 (1992);
Felizardo v. Court of Appeals, 233 SCRA 220, July 15, 1994; See also Silveno v. Court
of Appeals, 407 SCRA 240, July 24, 2003.
599
VOL. Ill
The failure of the defendant to comply with any of these condi-

9
tions is a ground for the outright execution of the judgment.
d. Rule is mandatory
The duty to issue the writ and immediate execution is ministe-
10
rial compellable by mandamus. But even if the writ is issued, the
11
appeal continues.
e. P e n d e n c y of another action not a ground to pre-
vent execution
Under Section 7 (now Sec. 18), Rule 70 of the Rules of Court,
"The judgment rendered in an action for forcible entry or detainer
shall be effective with respect to the possession only and in no case
bind the title or affect the ownership of the land or building. Such
judgment shall not bar an action between the same parties respect-
ing title to the land or building nor shall it be held conclusive of the
facts therein found in a case between the same parties upon a differ-
ent cause of action not involving possession." Thus, the cases of De
12
la Cruz v. Court of Appeals, are uniform in their pronouncement
that "(A) unlawful detainer action has an entirely different subject
from that of an action for reconveyance of title. What is involved in
an unlawful detainer case is merely the issue of material possession
or possession de facto; whereas in an action for reconveyance, owner-
ship is the issue. So much so that the pendency of an action for
reconveyance of title over the same property does not divest the city
or municipal court of its jurisdiction to try the forcible entry or
unlawful detainer case, nor will it preclude or bar execution of judg-
ment in the ejectment case where the only issue involved is material
13
possession or possession de facto.
9
Ricafort v. Gonzales, A.M. RTJ-0003001798, September 7 , 2 0 0 4 , 4 3 7 SCRA 549.
10
B a s e v. Leviste, 99 SCRA 575; Philippine Holding Co. v. Valenzuela, 104 SCRA
401; Ng Lit v. Llamas, 118 SCRA 215; H u a l a m Const, and Dev't Corp. v. Court of
Appeals, 214 SCRA 612, supra.
"Patalinghug v. Court of Appeals, G.R. No. L-48667, July 12, 1985, 137 SCRA
487; See also Gochangco v. Court of First Instance, 157 SCRA 40 (1988); Cordoba v.
Labayen, October 10, 1995, 249 SCRA 172.
12
1 3 3 SCRA 520, November 29, 1984; Drilon v. Gaurana, 149 SCRA 342, April
30, 1987, and Ang Ping v. Regional Trial Court of Manila, Br. 40, 154 SCRA 77, Sep-
tember 17, 1987.
13
D e la Cruz v. Court of Appeals, Ibid., at p. 527; Vide Chua v. Court of Appeals,
271 SCRA 546, April 18, 1997; Silverio v. Court of Appeals, 407 SCRA 240, July 24,
2003.
600
Sec. 19
The rationale, as explained in De la Cruz, is that "forcible entry

and unlawful detainer cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or
the right to possession of the property involved. It does not admit of
a delay in the determination thereof. It is a 'time procedure' designed
to remedy the situation. Procedural technicality is therefore obviated
and reliance thereon to stay eviction from the property should not be
tolerated and cannot override substantial justice. So much so that
the judgment must be executed immediately when it is in favor of
the plaintiff in order to prevent further damages arising from loss of
14
possession." As aptly stated by the Supreme Court:
"The pendency of Civil Case No. 3656 does not constitute such
compelling reason for it gives rise merely to an expectancy that the
documents assailed therein may be nullified and the subject proper-
ties may be ordered reconveyed to petitioners, as compared to the
clear, actual and existing legal right of respondent corporation to
15
possession of the subject properties as registered owners."
f. Exceptions
1. Instances of fraud, accident, mistake or excusable negli-
gence or supervening events occurring subsequent to the judgment
bringing about a material change in the situation of the parties
which make execution inequitable or where there is no compelling
urgency for the execution because it is not justified by the prevailing
16
circumstances were considered as sufficient causes to refuse issu-
ance of the writ.
2. If the judgment is silent on rentals, the defendant is not
bound to make a deposit and the CFI has no jurisdiction to supply
17
the omission.
3. However, where there is a finding by the Municipal Court
that rentals under the lease contract is P20.00 a month and defend-
14
Tomas Galgala v. Benguet Consolidated, Inc., 177 SCRA 288 (1989).
i5
Ibid.
16
D e Laureano v. Adil, 72 SCRA 148; Laurel v. Abalos, 30 SCRA 281 <Dct^l,
1969; Hualam Construction and Development Corp. v. Court of Appeals, 214 &L,KA
612, supra
17
3 MORAN 343
601
VOL. Ill
ant moved to stay execution by posting a supersedeas bond, the

mere failure of the Municipal Judge to order in the dispositive por-
tion of its judgment that the defendant should pay monthly rentals
will not preclude the CFI from ordering execution of the Municipal
18
Courts judgment for failure to deposit in Court the current rentals.
When a case involves provable rents or damages incurred by a
government-owned or controlled corporation, the real party in inter-
est is the Republic of the Philippines. When the State litigates, it is
not required to put up a bond for damages or even an appeal bond
either directly or indirectly through its authorized officers be-
cause it is presumed to be always solvent.
Thus, it would be unnecessary to ask the NHA to file a bond
because to do so would be to indirectly require the government to
submit the bond. And the State is not required to file a bond for the
obvious reason that it is capable of paying its obligation. In any
event, the NHA has already paid the appellate docket fees and filed
19
the supersedeas bond as ordered by the RTC, albeit late.
g. Even if Lessor is Appellant, Appellee m u s t Comply

with P a y m e n t of Rentals a n d S u p e r s e d e a s B o n d
The rule requiring supersedeas bond and deposit of rentals
applies even if it is the lessor who appealed; otherwise execution will
issue. Note: There is here a judgment ordering lessee to pay, but the
lessor appealed because he was not satisfied with the rental fixed by
20
the Court.
There is a rationale for requiring a losing party to file a
supersedeas bond in order to stay the immediate execution of a
judgment in an ejectment case. Such bond is required to assure the
payment of damages to the winning party in case the appeal is found
21 22
frivolous, or the judgment appealed from is affirmed.
18
D e h e s a v. Macalalag, 81 SCRA 543 (1978).
19
Badillo v. Tayag, 400 SCRA 494, April 3, 2003.
20
City of Manila v. Court of Appeals, 149 SCRA 183 (1987).
21
Badillo v. Tayag, 400 SCRA 494, April 3, 2003.
22
Ricafort v. Gonzales, 437 SCRA 549, September 7, 2004.
602
Sec. 19
h. Items on s u p e r s e d e a s b o n d
A supersedes bond answers for damages and costs adjudged in
23
the appealed judgment and rentals as fixed in the judgment.
1. The supersedeas bond is filed with the Justice of the Peace
24 25
but it may be filed with CFI if not executed yet. Compare: Timeli-
ness of filing supersedeas bond is important.
26
2. The requirement is mandatory.
3. The supersedeas bond is unnecessary where back
rentals were deposited provided there is an appeal bond or there is
no judgment for rentals or compensation.
i. E x c e p t i o n to Ministerial Duty To issue Execution

Although the decision in the ejectment case against the peti-
tioner is final and executory, however, in the accion reivindicatoria,
the Court of Appeals affirmed the ownership of petitioners as to
ownership of the land. The court held that the stay of execution is
warranted. As owners, petitioners are entitled to the possession of
the same The court reiterated the exceptions to the immediate issu-
ance of a writ of execution in an ejectment case where it becomes
imperative in the higher interests of justice to direct the suspension
of execution, enumerating the seven (7) Juses of ownership among
27
which is the right of possession.
j. Meaning o f D a m a g e s i n Ejectment Cases

Damages in ejectment case is limited to "rent" or fair rental
value or the reasonable compensation for the use and occupation of
28
the property.
23
D e Laureano v. Adil, supra; Cordoba v. Labayen, 249 SCRA 172, October 10,
1995.
24
Acibo v. Macadaeg, 11 SCRA 446, June 30, 1964.
"Cordoba v. Labayen, 249 SCRA 172, October 10, 1995.
M
C r u z v. Burgos, 28 SCRA 977, July 30, 1969; Cordoba v. Labayen, 249 SLKA
172.
27
B u s t o s v. Court of Appeals, 350 SCRA 155, January 24, 2001.
M
C a t u n g a l v. Hao, 355 SCRA 29, March 22, 2001.
603
VOL. Ill
k. Meaning of "Damages"
29
In Hualam Construction v. Court of Appeals, Justice Davide
of the Third Division reiterated the rule that since the only issue
raised in forcible entry or unlawful detainer cases is that of rightful
physical possession, the "damages" recoverable in these cases are
those which the plaintiff could have sustained as a mere possessor,
i.e., those caused by the loss of the use and occupation of the prop-
erty, and not the damages which he may have suffered but which
have no direct relation to his loss of material possession. Municipal
and Gity Courts therefore, have no jurisdiction to award damages
based on any other ground. Simply put, "damages" in the context of
Section 8 of Rule 70 is limited to "rent" of "fair rental value for the
use and occupation of the property."
Thus, the supersedeas bond to stay execution need not include
other charges, such as air conditioning charges, association dues,
parking fees, telephone charges, real estate taxes, electric bills and
30
penalty charges.
1. A deposit as supersedeas bond if disapproved must be
returned even if execution is issued. A defective bond by mistake
31
maybe corrected.
Notes and cases o n rentals a n d s u p e r s e d e a s b o n d
m. Current rentals paid with CFI refers to months in the

calendar, and to rentals accruing after appeal as adjudged by the
court.
n. If the judgment is for yearly rentals, rule of monthly pay-
32
ment does not apply.
o. There is no obligation to deposit if the award is for other
33
forms of damages.
'214 SCRA 612 (1992).

'Supra.
l
De Laureano v. Adil, 72 SCRA 148, supra.
'Cereso v. Munoz, 52 O.G. 4609.
'Inigo v. Cabrera, 77 Phil. 653.
604
The defendant is not bound to pay if he is no longer in posses-

sion of the premises or the judgment of the lower court does not fix
34
any amount. The CFI has no jurisdiction to cure the silence.
35
But in Fuentes v. Bautista, even if during the pendency of the
case, the defendant had already vacated the place, the supersedeas
bond is still necessary to stay execution because the execution of the
judgment does not only refer to restoration of possession but also
36
payment of rentals in arrears as determined by the judgment.
p. After the perfection of the appeal, the lower court, can no
longer require the filing of supersedeas bond and execution based
37
thereon is void.
q. The CFI has no power to reduce or modify rentals to be
38 39
deposited pending appeal, nor to extend the time. A deposit of less
40
amount as fixed is a violation and warrants immediate execution.
41
r. The supersedeas bond may be in cash or surety bond. It
42
need not cover attorney's fees and is no longer required where the
adjudged amount or sum that would have been covered by it is
43
deposited with the Court.
s. The pendency of an accion publiciana does not bar execu-
44
tion of the judgment where the action was for forcible entry.
t. Duty to deposit r e n t a l s
The duty to deposit is not affected by the pendency of another
45
case.
34
L u n s o d v. Ortega, 46 Phil. 664; Felipe v. Teodoro, 46 Phil. 409; Perez v. Revilla,
46 Phil. 56.
35
5 3 SCRA 420.
36
S e e also Acierto v. Laperal, 107 Phil. 1088, April 2 9 , 1 9 6 0 .
37
S i n g s o n v. Babida, 79 SCRA 111; See also Cordoba v. Labayen, 249 SCRA 172,
October 10, 1995.
38
Castillo v. Court of Appeals, 124 SCRA 808.
3 9
N g Lit v. Llamas, 118 SCRA 215.
40
B a l a g t a s Realty v. Romillo, 114 SCRA 28.
41
D e Laureano v. Adil, 72 SCRA 148, supra.
4 2
0 n c e v. Gonzales, 76 SCRA 258 (1977).
43
Castueras v. Bayona, 106 Phil. 340, Oct. 16, 1959.
44
Ramirez v. Bleza, 106 SCRA 187.
46
Gaerlan, et al. v. Martinez, et al., 47 O.G. 3483.
605
VOL. Ill
46
u. The CFI has no jurisdiction to allow extension of time or
47
to accept bonds in lieu of cash.
v. Deposit out of time before or after the writ of execution is
issued is not an excuse, except when there is fraud, accident, mis-
48
take or excusable negligence.
An insufficient supersedeas bond or failure to deposit rentals is
a ground for immediate execution by the RTC without prejudice to
49
the appeal taking its course.
COMPARE:
w. A trial court should give defendant reasonable time to
make a deposit to stay execution pending appeal of the ejectment
50
case.
x. Failure of counsel to advice his clients to deposit rentals
51
in ejectment is not binding on client.
52
y. Immediate deposit is a matter of public policy. Superse-
deas answers only for back rentals.
z. Appellee's agreement to suspend execution upon mere fil-
53
ing of cash bond is a waiver of the right to immediate execution.
aa. Waiver by plaintiff of rents amounts to compliance by
54
defendant and appellant with conditions for stay of execution.
55
bb. Mere delay in filing motion for execution is not a waiver.
cc. But if in spite of default plaintiff still accepted belated
payment for the purpose of staying execution of the judgment, plain-
56
tiff is deemed to have waived his right to immediate execution.
46
Carbungco v. Amparo, 83 Phil. 683; Chieng v. Tarn Ten, 21 SCRA 211.
47
Phil. Holding Co. v. Valenzuela, 104 SCRA 4 0 1 ; Ysrael v. Court of Appeals, 78
Phil. 831.
48
B a s e v. Leviste, 99 SCRA 575.
49
Ricafort v. Gonzales, 437 SCRA 549, September 7, 2004.
50
S a n c h e z v. Zosa, 68 SCRA 171.
51
S a u r e v. Pentecostes, 104 SCRA 642.
52
B a s e v. Leviste, 99 SCRA 575.
53
Domingo v. Court of First Instance of N u e v a Ecija, 77 Phil. 170.
M
C r u z v. Jugo, 77 Phil. 18.
S6
Silva v. Court of Appeals, 88 Phil. 599; Manotok v. Legaspi, 77 Phil. 523.
56
J6id.
606
Sec. 19
dd. The mere filing of a petition for certiorari and prohibition

does not ipso facto relieve the appellant of his obligation to make
57
monthly deposits.
ee. The immediate execution of the judgment of the City Court
is both as to restoration of possession and payment of accrued rentals.
58
(This refers to failure to post supersedeas bond.)
ff. Failure to deposit rentals

Execution shall issue with regard to the delivery to the plain-
tiff of the possession of the land, but such execution should not be
extended to the supersedeas bond conditioned to enter the action in
the CFI and to pay damages and costs down to the time of final
judgment, while the case is still pending in the court and no judg-
59
ment has yet been rendered against the defendants.
gg. Loss of jurisdiction by MTC

It was later held t h a t after the perfection of an appeal the MTC
is without jurisdiction to issue a writ of execution even if no superse-
deas bond is filed. The writ may be issued by the Regional Trial
60
Court.
The writ of execution pending appeal may be issued by the
RTC but once the judgment becomes final, the writ should be issued
61
by the MTC.
h h . When e x e c u t i o n s u s p e n d e d
The court on certiorari and prohibition ordered the suspension
of enforcement of writ of execution and order of demolition in the
action for illegal detainer, in view of the action filed by petitioner for
quieting of title over the lot in issue. It is only in forcible entry cases
that as a matter of public policy the right to physical possession
62
should be immediately set to rest.
"Hernandez v. Pefia, 86 Phil. 411, May 19, 1950; Patalinghug v. Court of Ap-
peals, 137 SCRA 487.
58
D e Laureano v. Adil, 72 SCRA 148.
69
Alvarez v. Lacson, 52 O.G. 4680, 99 Phil. 661.
" M o d e s v. Judge Maravilla, 57 SCAD 494, 239 SCRA 188 (1994).
6l
Supra. n .
82
Vda. de Legaspi v. Avendano, 79 SCRA 135; Vide Hualam Construction v. Court
of Appeals, 214 SCRA 612.
607
VOL. Ill
It has, however, been held that the rule on immediate execu-

tion is mandatory The Legaspi case is exceptional and was based
63
on strong reasons of equity.
Where the installment due under a judgment based on a stipu-
lation of facts have not been paid, an alias writ of execution may no
longer issue for subsequent unpaid rentals but should be the subject
64
of another suit.
ii. Procedure w h e r e p o s s e s s i o n claimed by stranger
to case
Where possession of the subject premises was claimed by a
third party or stranger to the ejectment case, the court is justified in
suspending the implementation of the writ of execution. Where the
actual possessor may be claimed to be a privy to any of the parties to
the action, or his bona fide possession may be disputed, or where it is
alleged that such possession has been taken in connivance with the
defeated litigant with view to frustrating the judgment, the proper
procedure would be to order a hearing on the matter of such posses-
sion and to deny or accede to the enforcement of a writ of possession
as the finding shall warrant. In the absence of any such hearing or
any proceeding of similar character, every person in the actual pos-
65
session of the land has a right to be respected therein and his
ejectment would constitute a deprivation of a property right without
66
due process of law.
SEC. 20. Preliminary mandatory injunction in case of

appeal. Upon m o t i o n of t h e plaintiff w i t h i n t e n (10) days
from the perfection of t h e appeal to t h e Regional Trial Court,
the latter may issue a writ of preliminary m a n d a t o r y injunc-
tion to restore the plaintiff in p o s s e s s i o n if t h e court is satis-
fied that the defendant's appeal is frivolous or dilatory, or
that the appeal of the plaintiff is prima facie meritorious. (9a)
63
S a l i n a s v. Navarro, 126 SCRA 167; Gonzales, Jr. v. IAC, 131 SCRA 468.
64
Gamboa's Incorporated v. Court of Appeals, 72 SCRA 131 (1976).
65
Art. 446, Civil Code.
66
S y v. Habacon-Garayblas, 228 SCRA 644 (1993), citing Sta. Ana v. Sunga, 54
SCRA 36, 44 (1973).
608
COMMENT:
1. Source of Rule
a. The writ of preliminary mandatory injunction may be is-
sued even if the appellant is the plaintiff lessor if it appears that the
1
lessor's appeal is meritorious. This remedy is available even in the
2
Court of Appeals.
b. Even if a supersedeas bond is filed, mandatory injunction
for restoration of premises may issue but execution with respect to
the payment of accrued rentals should be stayed. No execution can
be issued because of the supersedeas bond.
c. The grant of mandatory injunction constitutes a judgment
of the appeal with respect to the possession of the lots. The main
point to be resolved in the appeal is the correctness of the City
Court's finding on the reasonable value of the use and occupation of
the lots after the expiration of the lease. Appeal continues on this
3
point.
d. The petition for preliminary mandatory injunction should
4
be resolved with dispatch.
e. But even if a mandatory injunction is granted the proce-
dure on demolition under Sec. 14, Rule 39 must still be followed.
SEC. 2 1 . Immediate execution on appeal to Court of Ap-

peals or Supreme Court. The j u d g m e n t of the Regional
Trial Court against the defendant shall be immediately ex-
ecutory, w i t h o u t prejudice to a further appeal that may be
taken therefrom. (10a)
^ a y a o v. Shell Company of the Phils. Ltd., 97 SCRA 407, 418 (1980).

2
See concurring opinion of Justice Barredo in De Laureano v. Adil, 72 SCRA
148,supra.
3
D e Laureano v. Adil, 72 SCRA 148, supra.
S a l v a d o r v. Salamanca, 144 SCRA 276.
609
VOL. Ill
COMMENT:
This replaces Section 10 of the Former Rule which reads:
SEC. 10. Stay of execution on appeal to Court of Appeals or

Supreme Court. - Where defendant appeals from a judgment of the
Court of First Instance, execution of said judgment, with respect to
the restoration of possession, shall not be stayed unless the appellant
deposits the same amounts and within the periods referred to in
Section 8 of this rule to be disposed of in the same manner as therein
provided.
Under the present rule the judgment of the Regional Trial
Court against the defendant shall be immediately executory, with-
out prejudice to a further appeal that may be taken therefrom. (Sec.
21, RSP)
The Revised Rule on summary procedure expressly repealed
Section 10 and provided that: "The decision of the regional trial
court in civil cases governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately executory, without preju-
dice to a further appeal that may be taken therefrom. Section 10 of
Rule 70 shall be deemed repealed." (Sec. 21)
It is the judgment of the Court of First Instance t h a t may be
executed and not that of the Justice of the Peace which had become
functus oficio having been superseded by the judgment of the Court
1
of First Instance.
Where, however, the case falls under the Rule on Summary
Procedure, the decision of the Regional Trial Court in such civil
2
cases shall be immediately executory.
3. Whether title is necessarily involved in an action for forci-
ble entry and detainer is a question of fact to be determined from the
evidence presented by both parties at the trial, and that question
l
De la Fuente v. Jugo and Borromeo, 76 Phil. 262, 264.
2
Sec. 18, Rule on Summary Procedure.
610
can be resolved only on appeal and not by certiorari proceedings, in

3
the CFI.
4. Appeal is the proper remedy after the rendition of a judg-
ment of ejectment by the City Court and not certiorari. A CFI judge
4
has no power to review a final judgment of the City Court. Certio-
5
rari is not a substitute for appeal.
5. Review of a decision of CFI in cases exclusively cognizable
by Inferior Courts where factual issues were raised is the proper
remedy, and according to Justice Teehankee this is not even a mat-
6
ter of right.
See Appendix A Limiting Filing of Ejectment Case.
3
3 MORAN, p. 3 1 8 , 1 9 8 0 Ed.; Alviar v. Pampolina, 84 Phil.
4
Cantelang v. Medina, 91 SCRA 403.
5
Hermogenes v. Amores, 111 SCRA 652.
6
Sevilla v. Buissan, 118 SCRA 598.
611
RULE 71
CONTEMPT
SECTION 1. Direct contempt punished summarily. A

person guilty of misbehavior in the p r e s e n c e of or so near a
court as to obstruct or interrupt the proceedings before the
same, including disrespect toward the court offensive per-
sonalities toward others, or refusal to be s w o r n or to a n s w e r
as a witness, or to subscribe an affidavit or deposition w h e n
lawfully required to do so, may be summarily adjudged in
contempt by s u c h court and p u n i s h e d by a fine n o t exceed-
ing two thousand p e s o s (P2,000) or imprisonment not ex-
ceeding ten (10) days, or both, if it be a Regional Trial Court
or a court of equivalent or h i g h e r rank, or by a fine not
exceeding t w o h u n d r e d p e s o s (P200) or imprisonment not
exceeding one (1) day, or both, if it be a l o w e r court, (la)
COMMENT:
1. Source of Rule
2. Changes in Rule
No substantial change except an increase the penalty.
3. Notes and Cases

a. Concept of Contempt of Court
Contempt of court is a defiance of the authority, justice or dig-
nity of the court; such conduct as tends to bring the authority and
administration of the law into disrespect or to interfere with or
1
prejudice parties-litigant or their witnesses during litigation.
l
12 Am. Jur. 389, cited in 14 SCRA 813; Halili v. Court of Industrial Relations,
136 SCRA 112; Alcuaz v. PSBA, 161 SCRA 7 (1988).
612
Rule 71 CONTEMPT
Sec. 1
Contempt of court is defined as a disobedience to the court by

acting in opposition to its authority, justice and dignity. It signifies
not only a willful disregard or disobedience of the court's orders, but
such conduct as tends to bring the authority of the court and the
administration of law into disrepute or in some manner to impede
the due administration of justice. (17C.J. S. 4)
b. P o w e r i n h e r e n t in all courts
The court has thus repeatedly declared that the power to pun-
ish for contempt is inherent in all courts and is essential to the
preservation of order in judicial proceedings and to the enforcement
of judgments, orders, and mandates of the court, and consequently,
2
to the due administration of justice.
The reason for the inherent power of courts to punish for con-
tempt is t h a t respect of the courts guarantees the stability of the
judicial institution. Without such guarantee said institution would
3
be resting on a very shaky foundation.
c. Two-Fold Aspect of P o w e r to P u n i s h Contempt of

Court
In the matter of exercising the power to punish contempts the
Supreme Court enunciated in the Slade Perkins case that "the exer-
cise of the power to punish contempts has a two fold aspect, namely:
(1) the proper punishment of the guilty party for his disrespect to
the court or its order; and (2) to compel his performance of some act
or duty required of him by the court which he refuses to perform."
d. Civil C o n t e m p t a n d Criminal C o n t e m p t Distin-

guished
Due to this two-fold aspect of the exercise of the power to pun-
ish them, contempts are classified as civil or criminal.
2
Slade Perkins v. Director of Prisons, 58 Phil. 271; In re Kelly, 35 Phil. 944;
Commissioner of Immigration v. Cloribel, 20 SCRA 1241; Montalban v. Canonoy, 38
SCRA 1; People v. Navarro, 121 SCRA 707; Halili v. CIR, Supra; See also Montenegro
v. Montenegro, G.R. No. 156829, June 8, 2004, 431 SCRA 415.
3
Salcedo v. Hernandez, 61 Phil. 724; Cornejo v. Tan, 85 Phil. 722; People v.
Navarro, 121 SCRA 707.
613
VOL. Ill
A civil contempt is the failure to do something ordered to be

done by a court or a judge for the benefit of the opposing party
therein.
A criminal contempt is conduct directed against the authority
and dignity of a court or of a judge, as in unlawfully assailing or
discrediting the authority or dignity of the court or judge, or in doing
a duly forbidden act.
Where the punishment imposed, whether against a party to a
suit or a stranger, is wholly or primarily to protect or vindicate the
dignity and power of the court, either by fine payable to the govern-
ment or by imprisonment, or both it is deemed a judgment in a
criminal case. Where the punishment is by fine directed to be paid to
a party in the nature of damages for the wrong inflicted, or by
imprisonment as a coercive measure of the party or in aid of the
final judgment or decree rendered in his behalf, the contempt judg-
ment will, if made before final decree, be treated as in the nature of
an interlocutory order, or, if made after final decree, as remedial in
nature, and may be reviewed only on appeal from the final decree, or
in such other mode as is appropriate to the review of judgments in
4
civil cases, x x x
A criminal contempt, being directed against the dignity and
authority of the court, is an offense against organized society and, in
addition, is also held to be an offense against public justice which
raises an issue between the public and the accused, and the proceed-
ings to punish it are punitive. On the other hand, the proceedings to
punish a civil contempt are remedial and for the purpose of the
preservation of the right of private persons. It has been held that
civil contempt is neither a felony nor a misdemeanor, but a power of
5
the court.
It has further been stated t h a t intent is a necessary element in
criminal contempt, and that no one can be punished for a criminal
contempt unless the evidence makes it clear that he intended to
commit it. On the contrary, there is authority indicating that since
the purpose of civil contempt proceedings is remedial, the defend-
4
People v. Godoy, 243 SCRA 64, March 2 9 , 1 9 9 5 ; See also Rosario Textile Miller,
Inc. v. Court of Appeals, 409 SCRA 529 (2003).
5
People v. Godoy, Supra.
614
Rule 71 CONTEMPT
Sec. 1
ant's intent in committing the contempt is immaterial. Hence, good

faith or the absence of intent to violate the court's order is not a
6
defense in civil contempt.
e. As to t h e P u r p o s e for w h i c h the P o w e r is Exercised

A major factor in determining whether a contempt is civil or
criminal is the purpose for which the power is exercised. Where the
primary purpose is to preserve the court's authority and to punish
for disobedience of its orders, the contempt is criminal. Where the
primary purpose is to provide a remedy for an injured suitor and to
coerce compliance with an order, the contempt is civil. A criminal
contempt involves no element of personal injury. It is directed against
the power and dignity of the court; private parties have little, if any,
in interest in the proceedings for punishment. Conversely, if the
contempt consists in the refusal of a person to do an act that the
court has ordered him to do for the benefit or advantage of a party to
an action pending before the court, and the contemnor is committed
until he complies with the order, the commitment is in the nature of
an execution to enforce the judgment of the court; the party in whose
favor that judgment was rendered is the real party in interest in the
proceedings. Civil contempt proceedings look only to the future. And
it is said t h a t in civil contempt proceedings, the contemnor must be
7
in a position to purge himself.
f. As to t h e Character of t h e Contempt Proceeding

It has been said that the real character of the proceedings is to
be determined by the relief sought, or the dominant purpose, and
the proceedings are to be regarded as criminakwhen the purpose is
primarily punishment, and civil when the purpose is primarily com-
8
pensatory or remedial.
g. Nature of Criminal Contempt Proceedings
Criminal contempt proceedings are generally held to be in the
nature of criminal or quasi-criminal actions. They are punitive m
6
Supra.
1
Supra. ,
6
Supra, cited in Remman Enterprises v. Court of Appeals, 268 SCRA 688, Feb-
5
ruary 2 6 , 1 9 9 7 ; Rosario Textile Miller, Inc. v. Court of Appeals, 409 SCRA ^ . A u g u s t
25, 2003; Montenegro v. Montenegro, G.R. No. 156829, June 8, 2004, 431 b C K A 4 i o .
615
VOL. Ill
nature, and the Government, the courts, and the people are inter-
ested in their prosecution. Their purpose is to preserve the power
and vindicate the authority and dignity of the court, and to punish
for disobedience of its orders. Strictly speaking, however, they are
not criminal proceedings or prosecutions, even though the contemp-
tuous act involved is also a crime. The proceeding has been charac-
terized as sui generis, partaking of some of the elements of both a
civil and criminal proceeding, but really constituting neither. In
general, criminal contempt proceedings should be conducted in ac-
cordance with the principles and rules applicable to criminal cases,
in so far as such procedure is consistent with the summary nature of
contempt proceedings. So it has been held that the strict rules that
govern criminal prosecutions apply to a prosecution for criminal
contempt, that the accused is to be afforded many of the protections
provided in regular criminal cases, and t h a t proceedings under stat-
utes governing them are to be strictly construed. However, criminal
proceedings are not required to take any particular form so long as
9
the substantial rights of the accused are preserved.
h. Nature of Civil Contempt P r o c e e d i n g s

Civil contempt proceedings are generally held to be remedial
and civil in their nature; that is, they are proceedings for the en-
forcement of some duty, and essentially a remedy for coercing a
person to do the thing required. As otherwise expressed, a proceed-
ing for civil contempt is one instituted to preserve and enforce the
rights of a private party to an action and to compel obedience to a
judgment or decree intended to benefit such a party litigant. So a
proceeding is one for civil contempt, regardless of its form, if the act
charged is wholly the disobedience, by one party to a suit, of a
special order made in behalf of the other party and the disobeyed
order may still be obeyed, and the purpose of the punishment is to
aid in an enforcement of obedience. The rules of procedure govern-
ing criminal contempt proceedings, or criminal prosecutions, ordi-
narily are inapplicable to civil contempt proceedings. It has been
held that a proceeding for contempt to enforce a remedy in a civil
action is a proceeding in that action. Accordingly, where there has
been a violation of a court order in a civil action, it is not necessary
'Supra.
616
Rule 71 CONTEMPT
Sec. 1
to docket an independent action in contempt or proceed in an inde-

pendent prosecution to enforce the order. It has been held, however,
that while the proceeding is auxiliary to the main case in that it
proceeds out of the original case, it is essentially a new and inde-
pendent proceeding in t h a t it involves new issues and must be initi-
10
ated by the issuance and service of new process.
i. By Whom Initiated
In general, civil contempt proceedings should be instituted by
an aggrieved party, or his successor, or someone who has a pecuni-
ary interest in the right to be protected. In criminal contempt pro-
11
ceedings, it is generally held that the State is the real prosecutor.
j. Contempt i s Not P r e s u m e d
Contempt is not presumed. In proceedings for criminal con-
tempt, the defendant is presumed innocent and the burden is on the
prosecution to prove the charges beyond reasonable doubt. In pro-
ceedings for civil contempt, there is no presumption, although the
burden of proof is on the complainant, and while the proof need not
be beyond reasonable doubt, it must amount to more than a mere
preponderance of evidence. It has been said that the burden of proof
in a civil contempt proceeding lies somewhere between the criminal
"reasonable doubt" burden and the civil "fair preponderance" bur-
den.
The question of whether the contempt committed is civil or
criminal, does not affect the jurisdiction or the power of a court to
1 2
punish the same x x x .
k. Classification of Contempt as Direct and Indirect
Contempt
Under the Rules of Court contempt is classified into direct and
13 14
indirect contempt or constructive contempt.
10
People v. Godoy, supra., cited in Remnan Enterprises v. CA, Supra.
n
Supra. See Section 4 with Comments, infra.
12
5 8 Phil. 271, 272; Halili v. Court of Industrial Relations, 136 SCRA 11A u o .
"People v. Navarro, 121 SCRA 707.
"Delina v. Gallardo, 77 SCRA 286, 290; Guerrero v. Villamor, 179 ooo,
November 15, 1989.
617
VOL. Ill
1. Direct Contempt is committed in the presence of or so

near the court or judge or obstruct or interrupt proceedings before
15 16
the same, and can be punished summarily without hearing.
Violation of the rule on forum shopping or false certification is
17
direct contempt and may be punished summarily.
So also is misbehavior of lawyer in court in refusing to abide by
18
ruling is direct contempt.
2. Indirect or constructive contempt is one committed out or
not in the presence of the court. It is an act done in a distance which
tends to belittle, degrade, obstruct, interrupt or embarrass the court
19
and justice, as in refusing to obey its order or lawful process and
20
can be punished only after hearing.
As the terms connote, the word "direct" would relate to an act
stemming immediately from a source, cause or reason and thus, the
15
Guerrero v. Villamor, Supra. Heirs of Trinidad De Leon Roxas Vda. De Roxas
422 SCRA 101, 119 (2004), footnoted the following cases of direct contempt: In Ang
Bagong Bayani-OFW Labor Party v. COMELEC (G.R. Nos. 147589 and 147613, 18
February 2003), the Court found the COMELEC members guilty of contempt for (1)
fined issuing three Resolutions which are outside the jurisdiction of the COMELEC,
(2) for degrading the dignity of this Court, (3) for brazen disobedience to this Court's
lawful directives, and (4) for delaying the ultimate resolution of the m a n y incidents of
the party-list case, to the prejudice of the litigants and of the country. The COMELEC
Chairman and four COMELEC Commissioners were each fined P20,000 while the
two remaining Commissioners, whose actions were less serious in degree than their
colleagues, were each P5.000. In Gamido v. New Bilibid Prison (G.R. No. 146783, 29
July 2002, 385 SCRA 325), the Court sentenced the petitioner to pay a fine of P10,000
or suffer imprisonment for a period of one month and one day, for appearing as coun-
sel in the case without license to practice law. In In Re: Published Alleged Threats
Against Members of the Court in the Plunder Law Case Hurled by Atty. Leonardo De
Vera (AM. No. 01-12-03-SC, 29 July 2002, 385 SCRA 285), respondent lawyer w a s
fined P20,000 for uttering statements aimed at influencing and threatening the Court
in deciding in favor of the constitutionality of the Plunder Law. In United BF Home-
owners v. Sandoval-Gutierrez (AM. No. CA-99-30, 16 October 2000, 343 SCRA 162),
the Court imposed a fine of P10,000 on one of the complainants whose scurrilous
attacks on the honor and integrity of two justices as well as that of the members of
this Court, undermined the Court's capacity to render justice.
16
People v. Navarro, Supra; Torcende v. Sardido, 396 SCRA 11, January 24,
2003, Per Curiam; Montenegro v. Montenegro, G.R. No. 156289, J u n e 8, 2004, 431
SCRA 415.
17
Leonidas v. Supnet, 398 SCRA 38, Feb. 21, 2003.
18
Bugaring v. Espanol, 349 SCRA 687, January 19, 2001.
19
Guerrero v. Villamor, Supra.
20
People v. Navarro, Supra.
618
Rule 71 CONTEMPT
Sec. 1
rule under the law that it be done in the presence of or so near a

court or judge while "indirect would signify an act done not straight
to the point and thus, legally speaking would pertain to acts done
out or no in the presence of the court. There must be a charge in
21
writing, a hearing and the judgment is appealable.
There must be a charge in writing, a hearing and the judgment
22
is appealable.
1. Illustrations of Direct Contempt

1.1. U s e of i n t e m p e r a t e l a n g u a g e
Atty. Homobono Adaza in his "motion to lift the writ of prelimi-
nary mandatory injunction" before the Supreme Court contended
that its issuance "has no legal nor factual basis" and was "unjust
and constitutes a serious miscarriage of justice."
xxx xxx xxx
Held: It is obvious that Atty. Adaza's characterization of the
mandatory injunction as "unjust and miscarriage of justice' and as
devoid of factual and legal basis is unfounded and unwarranted. He
treated a resolution of this Court as it were a pleading of an adver-
sary which he could assail in unrestrained and abrasive language.
His unjustified and disrespectful characterization carries with it
obvious derogatory implications or innuendos which clearly consti-
23
tute direct contempt or contempt in facie curiae.
24
Labelling the judge as "corrupt" is direct contempt. The use
by an attorney of intemperate and disrespectful language to the
judge while the court is in session constitutes direct contempt which
25
can be summarily punished.
21
Guerrero v. Villamor, Supra; Ruiz v. Judge How, A.M. No. RTJ 1805, October
14,2004.
22
Ibid.; Ruiz v. Judge How, citing Patricio v. Sulpicio, 196 SCRA 146, April 1 1 ,
1991; See also Wicker v. Arcangel, 252 SCRA 444, June 29, 1996.
23
S e c . 1, Rule 71, Rules of Court; Salcedo v. Hernandez, 61 Phil. 724, IZti ue
Joya v. CFI of Rizal, Pasay City Branch, 99 Phil. 907, 916; Malolos v. Reyes, 111 Pnil.
1113; Sison v. Sandejas, 105 Phil. 1279; Lim Se v. Argel, 70 SCRA 379.
24
Ceniza v. Sebastian, 130 SCRA 295.
^Sulit v. Tiangco, 115 SCRA 207.
619
VOL. Ill
26
In Ccniza v. Sebastian, Judge Alejandro Sebastian of the
Court of First Instance of Davao issued an order of arrest for con-
tumacious conduct based on an ex parte motion to have Judge
Alejandro E. Sebastian, inhibit himself from trying a civil case in
the then Court of First Instance of Davao, 16th Judicial District,
Branch VIII. The paragraph in such motion that apparently gave
offense follows: "That because of certain personal acts or conduct
displayed by the Presiding Judge in handling the above case, which
the Defendant and her counsel deem as highly irregular, corrupt
and a gross misconduct for a judge to do, the undersigned counsel
for Defendant has already filed an Administrative Case against the
herein presiding Judge in the Supreme Court, now docketed therein
as 'Administrative Matter No. 846-CFI, Atty. Amado S. Ceniza v.
21
District Judge Alejandro Sebastian, and the Defendant in the
above case is one of the material witnesses for the complainant in
said administrative case; and that by virtue of these, the bias and
prejudice of the Presiding Judge against the Defendant and her
counsel in the above case, is intensified and heightened, and con-
sequently the Presiding Judge in the above case, will no longer
have that sense of justice, that equanimity of emotion, that de-
tached and unaffected feeling and that disinterested and impartial
compartments which all judges ought to have and maintain while
28
hearing and deciding a case before them.
Held: This Court, on the above facts, sustains respondent Judge

in finding that there was a direct contempt committed but likewise
holds that, conformably to the controlling doctrine that the power to
punish for contempt should be exercised on the preservative and not
vindictive principle, modifies the judgment by lifting the warrant of
arrest but increasing the fine imposed to P500.
29
"This Court from Carag v. Warden of the Jail of Cagayan, a
30
1929 decision, to Sulit v. Tiangco, has consistently ruled that the
contempt power may be availed of by a judge, who is the victim of
1 3 0 SCRA 295.
CFI, Br. VIII, Tagum, Davao del Norte.
'Petition, Annex A, par. 6
'53 Phil. 85.
1 1 5 SCRA 207, July 20, 1982.
620
Rule 71 CONTEMPT
Sec. 1
insulting and offensive epithets. A member of the bar as an officer of

the Court is not justified to use vile and disrespectful language. If
there be such a failing on his part, he cannot complain if he is
adjudged guilty of contempt. Where the words appear in a pleading
submitted to the Court, t h a t is contempt in faci curiae and thereby
31
may be dealt with in a summary manner."
In Cortes v. Bangala, the Court, however, held that a judge
may not hold a party in contempt of court for expressing concern on
the judge's impartiality through a motion for voluntary inhibition,
32
even if the latter may have felt insulted therein.
Upon the other hand, it has been held that statements by an
attorney imputing irregularity in internal proceedings of the Su-
preme Court and laxity in similar matters constitutes serious disre-
33
spect. The statements in a motion filed before the Court of First
Instance such as "This is not the kind of administration of justice
that should be made to prevail in this Court, this is obnoxious to the
principles of the New Society, abhorrent to the principles of fair
34
play" constitutes direct contempt.
Statements in a motion alleging that (1) the issuance of the
subpoena duces tecum was irregular, which was found to be without
any basis, and (2) the court and court procedure were subject to the
"control" of the accused constitutes direct contempt. The latter state-
ment is particularly alarming for it implies that court proceedings
are a mere farce, and the court a mere stooge, a marionette subject
to the manipulation of the opposing party. It suggests that the judge
was moved by considerations other than his sense of justice and fair
play thereby calling into question the integrity and independence of
the court. Such statements tend to bring the authority of the admin-
istration of law into disrespect and constitutes a violation of the
35
Code of Professional Responsibility.
31
Cf. Yangson v. Salandanan, 68 SCRA 42, November 12, 1975.
32
3 2 2 SCRA 249 (2000), cited in Sison v. Judge F. Caoibes, Jr.,
May 27, 2004.
33
Borromeo v. Court of Appeals, 47 SCRA 67.
"Calo v. Tapucar, 88 SCRA 78.
35
Adorio v. Bersamin, 273 SCRA 217, June 10, 1997.
621
VOL. Ill
m. Direct Contempt committed in presence of Judge;

doubt resolved in favor of constructive contempt
In order that a person may be adjudged guilty of direct con-
tempt he must commit a "misbehavior in the presence of or so near a
court or judge as to interrupt the administration of justice, including
36
disrespect toward the court or judge." What characterizes direct
contempt is the act of disrespect to the court or to the judge who is
performing an official function. There is no direct contempt where
the act was committed at a time when the court was not in session
and the judge had already retired to his room. Any doubt as to
whether a contemnor had been guilty of a direct or a constructive
37
contempt should be resolved in favor of constructive contempt.
The failure of a lawyer to appear on the date of the hearing of
the motion to dismiss set by the judge and instead the lawyer filed a
motion for inhibition and categorical statement and intention not to
38
appear does not constitute direct contempt.
m.l There must be judicial p r o c e e d i n g s

Where a court employee who was drunk disrupted a Christmas
party where the judge is present, the act does not constitute con-
tempt. While the judge who was present was entitled to respond-
ent's respect even if it was a Christmas party, to consider respond-
ent's breach of propriety and decorum contempt of court would be to
lose sight of the fact that essentially the power to cite for contempt is
to be exercised strictly for the preservation of the dignity of the court
and its proceedings. As held in Buyco v. Zosa, 145 Phil. 663, 680, a
judge should always bear in mind t h a t the power to punish for
contempt should be exercised for purposes t h a t are not personal,
because that power is intended as a safeguard not for judges as
39
persons, but for the functions that they exercise.
36
Section 1, Rule 71, Rules of Court; Barreto v. Avila, 230 SCRA 219 (1994).
37
Ex parte Redmond, 132 So. 328, 159 Miss. 449; Mario Bengzon v. Bienvenido
A. Tan, 103 Phil. Reports 1154, May 23, 1958, unrep. See also Ruiz v. Judge How,
supra note 21.
38
Atty. Himiniano D. Silva v. Judge German G. Lee, 169 SCRA 512, Jan. 26,
1989.
39
A n g e l e s v. Gernale, A.M. No. P-996-1221, June 19, 1997; Ruiz v. Judge How,
supra.
622
Rule 71 CONTEMPT Sec. 1
n. P l e a d i n g s c o n t a i n i n g disrespectful language filed

in same p r o c e e d i n g s
Where the use of disrespectful or contemptuous language
against a particular judge in pleadings is filed in another court or
proceeding, it is indirect and not direct contempt as it is not tanta-
mount to a misbehavior in the presence of or so near a court or judge
as to interrupt the administration of justice. Stated differently, if the
pleading containing derogatory, offensive or malicious statements is
submitted in the same court or judge in which the proceedings are
pending it is direct contempt because it is equivalent to misbehavior
committed in the presence of or so near a court or judge as to inter-
40
rupt the administration of justice.
o. D u t y of L a w y e r s to Court
While every lawyer is entitled to present his case before the
courts of justice with vigor and courage, he is not permitted to mani-
fest such enthusiasm through threatening and abusive language.
Intimidating judges and accusing them of personal wrongdoing, es-
pecially if such accusations are clearly unfounded, ill becomes a
member of the bar who, as such, owes a fitting courtesy and respect
to those who sit in the bench and before whom he pleads. While
there is no doubt t h a t counsel have every right to impute to judges
honest mistakes in their decisions, ascribing to them personal short-
comings and vices and even deliberate attempts to falsify the truth,
cannot be condoned under the Code of Professional Responsibility
41
which every lawyer must observe.
Where a lawyer in a motion accused the court of "its biasness"
in the case and told the employees of the court that he would file an
administrative charge against the judge and in fact filed a manifes-
tation with the court in which he asked the court to hold its temper
and refrain from punishing him because he would file an adminis-
trative charge with the Supreme Court, the judge did not commit
grave abuse of discretion in holding the counsel guilty of direct con-
tempt based on contemptuous statements he made in his pleadings
42
before the court.
40
A n g v. Castro, 136 SCRA 453.
41
Counsel was S U S P E N D E D , Atty. Eladio C. Rubio v. Court of Appeals, 177
SCRA 60, Aug. 29, 1989.
"Ante v. Judge Pascua, 162 SCRA 780 (1988).
623
VOL. Ill
Lawyers should bear in mind their basic duty "to observe and
maintain the respect due to the courts of justice and judicial officers
and x x x (to) insist on similar conduct by others. This respectful
attitude towards the court is to be observed not for the sake of the
temporary incumbent of the judicial office, but for the maintenance
of its supreme importance. And it is "Through a scrupulous prefer-
ence for respectful language that a lawyer best demonstrates his ob-
43
servance of the respect due to the courts and judicial officers x x x."
Failure to notify Supreme Court of dismissal of case, criminal
44
case, by lower court is contempt of court.
p. Pleading Filed in Other Courts is Indirect Contempt

The filing, however, of an action for damages before the RTC of
Cebu against the RTC Judge of Leyte for allegedly knowingly ren-
dering an unjust judgment in dismissing the criminal cases before
him does not constitute direct contempt, but may only, if at all,
constitute indirect contempt subject to defenses that may be raised
by said petitioners in the proper proceedings. Stress must be placed
on the fact that the subject pleading was not submitted to respond-
ent judge nor in the criminal cases from which the contempt order
was issued but was filed in another court presided by another judge
and involving a separate action, the civil case for damages against
respondent judge. Although the allegations in the complaint for dam-
ages criticized the wisdom of respondent judge's act of dismissing
Criminal Cases Nos. N-00989 to N-0993, such criticism was directed
to him when he was no longer in the process of performing judicial
functions in connection with the subject criminal cases so as to con-
stitute such criticism as direct contempt of court. As categorically
45
stated in Aug v. Castro, "(T)he use of disrespectful or contemptuous
language against a particular judge in pleadings presented in an-
other court or proceeding is indirect, not direct, contempt as it is not
tantamount to a misbehavior in the presence of or so near a court or
judge as to interrupt the administration of justice." petitioners' al-
leged disrespectful language falling, if at all, under the classification
of indirect contempt, petitioners may be adjudged guilty thereof and
43
Guerrero v. Villamor, supra.
"Poblete v. Court of Appeals, 433 SCRA 39, G.R. No. 128859, June 29, 2004.
45
1 3 6 SCRA 453.
624
punished therefor only after charge and hearing as provided under

46
Section 3, Rule 71 of the Rules of Court.
q. Indirect Contempt Without Charge and Hearing

Void
Where the Order of Direct Contempt issued without charge
and hearing, but was also irregularly issued as an incident in Crimi-
nal Cases Nos. N-0989 to N-0993, which had long been terminated.
47
Said Order was therefore set aside for being null and void.
r. Failure to Appear at Trial is not Direct Contempt

Failure to appear for trial does not constitute direct contempt
but indirect contempt punishable only after written charges and
48
hearing.
SEC. 2. Remedy therefrom. The person adjudged in

direct contempt by any court m a y not appeal therefrom, but
m a y avail himself of t h e r e m e d i e s of certiorari or prohibi-
tion. The e x e c u t i o n of the j u d g m e n t shall be s u s p e n d e d pend-
ing resolution of s u c h petition, provided s u c h person files a
b o n d fixed by t h e court w h i c h r e n d e r e d the judgment and
conditioned that he will abide by a n d perform the judgment
should t h e petition be d e c i d e d against him. (2a)
COMMENT:
1. Source of Rule
SEC. 2. Appeal. The person adjudged in contempt by an
inferior court may appeal from the judgment to the Court of First
Instance of the province, and, as in ordinary criminal cases, execu-
tion of the judgment shall be suspended pending the appeal upon
46
Guerrero v. Villamor, 179 SCRA 355, 360 (1989).
47
Guerrero v. Villamor, Supra.
48
People v. Torio, 118 SCRA 14; See also Atty. Herminiano D. Silva v. Judge
German G. Lee, Adm. Matter No. R-255 RTC, Supra; Pacuribot v. Judge Lim, 275
SCRA 543, July 17, 1997.
625
VOL. Ill
such person filing a bond conditioned that he will abide by and

perform the judgment should the appeal be decided against him.
Judgment of superior courts on direct contempt shall not be appeal-
able.
2. Changes in The Rule
Judgment of superior courts on direct contempt shall not be
appealable, was deleted.
Under the present rule the person adjudged in direct contempt
by any court may not appeal therefrom, but may avail himself of the
remedies of certiorari or prohibition.
This amends Sec. 2 of the former rule which allowed an appeal
by a person adjudged in direct contempt by a municipal court, but
disallowed such an appeal from the judgment of a superior court.
The available remedies from the judgment on direct contempt by all
courts are certiorari or prohibition with a stay of execution upon the
1
filing of a bond.
SEC. 3. Indirect contempt to be punished after charge

and hearing. After a charge in w r i t i n g h a s b e e n filed, a n d
an opportunity given to the r e s p o n d e n t to c o m m e n t t h e r e o n
within such period as m a y be fixed by t h e court a n d to be
heard by himself or counsel, a p e r s o n guilty of a n y of t h e
following acts m a y be p u n i s h e d for indirect contempt:
(a) Misbehavior of an officer of a court in t h e perform-
ance of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, proc-
ess, order, or j u d g m e n t of a court, i n c l u d i n g t h e act of a
person who, after b e i n g d i s p o s s e s s e d or ejected from any
real property by the j u d g m e n t or process of any court of
competent jurisdiction, e n t e r s or attempts or i n d u c e s an-
other to enter into or u p o n s u c h real property, for t h e pur-
pose of executing acts of o w n e r s h i p or possession, or in any
manner disturbs the possession given to the person adjudged
to be entitled thereto;
^ e e Austria v. Masaquel, 20 SCRA 1247; Royeca v. Animas, 71 SCRA 1. (Feria).
626
(c) Any abuse of or any unlawful interference with the

p r o c e s s e s or p r o c e e d i n g s of a court not constituting direct
contempt u n d e r Section 1 of this Rule;
(d) Any improper c o n d u c t tending, directly or indi-
rectly, to impede, obstruct, or degrade the administration of
justice;
(e) A s s u m i n g to be an attorney or an officer of a court,
and a c t i n g as s u c h w i t h o u t authority;
(f) Failure to obey a s u b p o e n a duly served;
(g) The rescue, or attempted rescue, of a person or prop-
erty in t h e c u s t o d y of an officer by virtue of an order or
p r o c e s s of a court h e l d by him.
But n o t h i n g in this s e c t i o n shall be so construed as to
p r e v e n t t h e court from i s s u i n g p r o c e s s to bring the respond-
ent into court, or from h o l d i n g h i m in c u s t o d y p e n d i n g such
proceedings. (3a)
COMMENT:
1. Source of Rule
2. Changes in Rule
The phrase "and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court"
was added to the first paragraph. This is not required in cases of
direct contempt.
3. Notes a n d Cases (See Discussion under Sees. 4 and

5 for procedure)
ACTS CONSTITUTING CONTEMPT
1. Writ or order must be lawful

The writ or order must be lawful in order that resistance may
be punished as contempt. Courts have no power to demand comph-
627
VOL. Ill
1
ance with an order issued without authority. In other words, the
disobedience of or resistance to, an order or mandate which is void,
because issued by a court without jurisdiction of the subject matter
2
or of the parties, litigant cannot be considered as contempt.
Where, however, the order or mandate is valid, it cannot be
3
disobeyed no matter how erroneous it may be.
l.a Disobedience of, or Resistance to, the Judgment Does not
Constitute Contempt. A judgment debtor cannot be punished for
contempt under paragraph (b) of Section 3, Rule 64, for disobedience
of or resistance to the judgment of the trial court when the judgment
is not a special judgment enforceable under Section 9 of Rule 39 of
4
the Rules of Court.
2. Refusal to Comply w i t h Writ of P o s s e s s i o n is not

Contempt of Court
Where the writ of possession is directed not to the parties, but
to the sheriff for them to deliver the properties to respondent, they
cannot be held guilty of "disobedience or resistance to a lawful writ,
5
process, order, judgment or command of a court."
The proper procedure if he petitioners refuse to deliver posses-
sion of the lands is not for the court to cite them for contempt but for
the sheriff to dispossess them of the premises and deliver the pos-
6
session thereof to the respondents. However, if subsequent to such
dispossession, petitioners enter into or upon the properties for the
purpose of executing acts of ownership or possession or in any man-
ner disturb the possession of respondents then and only then may
7
they be charged with and punished for contempt.
^ h a n c o v. Madrilejos, 9 Phil. 356; Angel Jose Realty Corporation v. Galao, et

al., 76 Phil. 201; Segarra v. Maronilla, 108 Phil. 1086.
2
Weigall v. Shuster, 11 Phil. 340; 3 Moran, p. 360, 1980 Ed.
3
Compania General de Tabacos v. Alhambra Cigar and Cigarette Co., 33 Phil.
503; Golding v. Balatbat, 36 Phil. 941; Rosario Textile Mills, Inc. v. Court of Appeals,
409 SCRA 515, 525 (2003). The contempt is civil in nature.
"Angela G. De Quizon v. P N B , 85 Phil. 459.
5
Pascua v. Simeon, 161 SCRA01 (1988); Barreto v. Amila, 230 S C R A 2 1 9 (1994).
See also Vergara v. Gedorio, Jr., 402 SCRA 520, April 30, 2003.
6
Supra.
7
See Moslem v. Soriano, 124 SCRA 190, August 17, 1983; Rom v. Cabadora, 28
SCRA 758, July 17, 1969; Pascua v. Simeon, Supra.
628
3. Re-entry after d i s p o s s e s s i o n constitutes contempt

The remedy of contempt is not intended solely to protect the
interest of the party adversely affected by the contemptuous act
complained of. What the rule provides is that a person guilty of
"Disobedience of or resistance to a lawful writ, process, order, judg-
ment or command of court, x x x including the act of a person who,
after being dispossessed or ejected from any real property by the
judgment or process or any court of competent jurisdiction, enters x
x x upon such property, for the purpose of executing acts of owner-
8
ship or possession x x x," may be punished for contempt. Therefore,
contempt of court is an act constituting a defiance of the authority of
9
the court. It matters not if any litigant is adversely affected.
Thus, where it appears that petitioners had been effectively
ejected from the land in question pursuant to the writ of demolition
issued by the court, their re-entry is clearly a defiance of the author-
ity of the court.
The act of re-entry may be punishable for contempt of court
even after the lapse of five years from the date of the execution of the
10
judgment.
4. Misbehavior of an officer of a court in the perform-

a n c e of h i s official d u t i e s or in h i s official transactions
"Misbehavior" may be defined as a willful refusal or negligent
failure, without just cause, of an officer of the court to comply with
11
an order of the court.
5. Failure of Sheriff to Serve Summons

In a case, the appellant was a deputy sheriff and an officer of
the court. He willfully and negligently failed to serve a process of the
court, thereby interfering with the due and regular procedure of the
work of the court. It is not only admitted, but the record clearly
shows, that a regular summons was issued by the clerk of the court
"Section 3, par. 1(b), Rule 71, Rules of Court.

9
P a t a g a n v. Panis, 159 SCRA 507 (1988).
10
Benedicto v. Canada, 21 SCRA 1066 (1967), cited in Patagan v. Panis, supra.
Refusal, however to comply with Sec. 38, Rule 39 to attend examination under Sec.
3(b); Montenegro v. Montenegro, G.R. No. 156829, June 8, 2004, 431 SCRA 415.
"People v. Covacha, 52 Phil. Report 704.
629
VOL. Ill
and placed in the hands of the appellant, who failed utterly to serve
the same. He does not even now attempt to justify his failure to
comply with the order of the court and the law. He received the
summons on the 21st day of May, 1927, and never did serve the
same. He, therefore, contemptuously violated the order of the court
and interfered with the due administration of justice by his refusal
12
to serve said summons.
6. Lawyer's tactics in slanting c a s e s tolerated

The lawyer's tactics in omitting material facts vital to the full
appreciation of the court is generally tolerated because understand-
ably lawyers are apt to slant the presentation of their client's case so
that they could have a favorable judgment. Courts are not deceived
by the exaggerations and distortions in a counsel's lopsided submis-
sion of his client's case especially where the alert opposing counsel
13
calls the court's attention to that fact.
7. But not delaying tactics by l a w y e r

In a case, the court observed, Basa's adamantly insistent at-
tempts to raise issues long since laid to rest by final and executory
judgment of no less than the highest tribunal of the land, his presen-
tation of misleading arguments, not only expose a deliberate plan to
frustrate the executory and clear directions of this Court and those
of the Appellate Court, but constitute an unwarranted imposition on
the time and intelligence of this Court. By these tactics, he has been
able to delay execution of this Court's final and executory judgment
for several months now. He should no longer be permitted to do so.
And he should be punished for having done so, with evident pre-
14
meditation. His acts speak for themselves, res ipsa loquitur.
They clearly constitute misbehavior before the Court in facie
curiae, summarily punishable in accordance with Section 1, Rule 71
15
of the Rules of Court.
12
People v. Covacha, Supra.
13
D e Midgely v. Fernandos, 64 SCRA 31; Quasha v. Juan, 118 SCRA 505 (1982);
Manalad v. de Vega, 120 SCRA 749.
"Consolidated Bank and Trust Corp. v. Hon. Capistrano, 159 SCRA 47, March
18, 1988; Prudential Bank v. Hon. Castro, 155 SCRA 604, November 12, 1987; In Re
Wenceslao Laureta, 149 SCRA 570; People v. Hon. Valenzuela, 135 SCRA 712.
15
Limpin v. IAC, 161 SCRA 83 (1988).
630
Rule 71 CONTEMPT
Sec. 3
8. Tardiness could be a valid ground for contempt.

Justice Malcolm remarked:
All too frequently, a Court of First Instance finds it necessary
to impose a small fine on attorneys for failure to be present at the
session of the court at the hour and on the day named and for
16
unseemly behavior in the presence of the court.
Failure of counsel to appear in court for trial despite due notice
17
was held to constitute indirect contempt, for it is a misbehavior
committed not in the presence of or so near a court or judge as to
18
interrupt the administration of justice.
9. D u t y of l a w y e r to s e e to it that orderly administra-

tion of j u s t i c e n o t u n d u l y i m p e d e d (By filing several cases)
The act of the plaintiff and her counsel in filing several cases
against the same party over the same issue, after the appellate court
had decided adversely against them constitutes contumacious defi-
ance of the authority and flagrant imposition on the courts and
impeded the speedy administration of justice. Counsel should merit
the same penalty as t h a t of his client because as such counsel he
should have advised her, as petitioner's representative, against in-
stituting several cases involving the same parties and issues, espe-
cially after the same had been decided with finality adversely against
19
petitioner by the appellate courts.
9.a The refusal of a party to concede defeat, manifested by
unceasing attempts to prolong the final disposition of cases, ob-
structs the administration of justice and therefore constitutes con-
20
tempt of court.
16
G E O R G E A. MALCOLM, LEGAL AND JUDICIAL ETHICS (1949), 100-101.
"People v. Gagui, 2 SCRA 752 (1961).
18
Section 1, Rule 71, Rules of Court; Paredes-Garcia v. Court of Appeals, G.R.
No. 120654, September 11, 1996, 261 SCRA 693.
19
Pacquing v. Court of Appeals, 115 SCRA 117 (1982). Filing of multiple peti-
tions by lawyer to prevent execution constitutes improper conduct. Foronda v. Guerrero,
436 SCRA 9, August 10, 2004.
20
Velasquez, Jr. v. Court of Appeals, G.R. No. 138480, March 2 5 , 2 0 0 4 , 4 2 6 SCRA
309; Heirs of Trinidad De Leon Vda. de Roxas v. Court of Appeals (and cases cited
thereunder), 422 SCRA 101, February 5, 2004.
631
VOL. Ill
10. The filing of a motion for execution and the grant-

ing thereof by judge while case is still p e n d i n g in Supreme
Court is contempt
Respondent David filed on or about September 13, 1978, a
motion with the court a quo for the issuance of a writ of execution to
enforce its decision in Civil Case No. 61802, subject of the present
petition, knowing fully well that it was then still pending appeal
before this Court. In addition, no certification that the aforesaid
decision is already deemed affirmed had as yet been issued by the
Chief Justice pursuant to Section 11, paragraph 2, Article X of the
Supreme Court on January 31, 1978 and on July 7, 1978 to remand
the case to the trial court for execution and for the issuance of such
certification had not yet been acted upon as the same were still
pending consideration by this Court. In fact, this Court has not as of
this time made any pronouncement on the aforesaid provision of the
New Constitution.
This act of respondent David constitutes disrespect to, as well
as disregard of, the authority of this Court as the final arbiter of all
cases duly appealed to it, especially constitutional questions. It must
be emphasized that as a member of the Philippine Bar he is required
"to observe and maintain the respect due to the courts of justice and
judicial officers." (Section 20[b], Rule 138 of the Revised Rules of
Court). Likewise, Canon 1 of the Canons of Professional Ethics ex-
pressly provides that: "It is the duty of the lawyer to maintain to-
wards the Courts a respectful attitude, not for the sake of the tempo-
rary incumbent of the judicial office, but for the maintenance of its
supreme importance." And this Court had stressed that "the duty of
an attorney to the courts can only be maintained by rendering no
service involving any disrespect to the judicial office which he is
21
bound to uphold."
Moreover, this Court takes judicial notice of the fact that herein
respondent David, in the previous case of the Integrated Construc-
22
tion Services, Inc. and Engineering Construction, Inc. v. Relova,
had sent letters addressed to the then Chief Justice Querube C.
Makalintal and later to the late Chief Fred Ruiz Castro, requesting
21
R h e e m of the Philippines v. Ferrer, 20 SCRA 4 4 1 , 444 (1967), citing the case of
Lualhati v. Albert, 57 Phil. 86, 92 (1932).
22
6 5 SCRA 6 3 8 ( 1 9 7 5 ) .
632
for the issuance of certification on the basis of the aforementioned

provision of the New Constitution which were not given due consid-
eration. And knowing this, respondent David should have been more
prudent and cautious in filing with the Court a quo any motion for
execution.
Furthermore, there was even a taint of arrogance and defiance
on the part of respondent David in not filing his comment to the
letter-complaint dated October 18, 1978 of petitioner Corpus, as
required by this Court in its November 3, 1978 and December 4,
1978 resolutions which were duly received by him; and instead, he
sent on December 13, 1978 a letter requesting to be excused from
the filing of his comment on the lame excuse that petitioner's letter-
complaint was not verified.
11. J u d g e is Equally Guilty of Contempt

On the part of Judge Jose H. Tecson, his presumptuous and
precipitate act of granting the motion for execution of respondent
David likewise constitutes disrespect to, as well as disregard of, the
authority of this Court because he knew for a fact that the case was
still pending appeal as the records thereof had not yet been re-
manded to it and t h a t no certification has been issued by this Court.
As a judicial officer, Tecson is charged with the knowledge of the fact
that this Court has yet to make a definite pronouncement on Section
11, paragraph 2, Article X of the New Constitution. Judge Tecson
should know that only the Supreme Court can authoritatively inter-
pret Section 11(2) of Article X of the 1973 Constitution. Yet, Judge
Tecson assumed the role of the Highest Court of the Land. He should
be reminded of what Justice Laurel, speaking for the Court, has said
23
in People v. Vera:
"A becoming modesty of inferior courts demands conscious re-
alization of the position that they occupy in the interrelation and
operation of the integrated judicial system of the nation."
It may also be added that the improvident act of respondent
David in filing the motion for execution and the precipitate act of
Judge Tecson in issuing the writ of execution are intriguing as they
invite suspicion that there was connivance between the two. Re-
M
6 5 Phil. 56, 82 (1937).
633
VOL. Ill
spondent David would seem to imply that his claim for attorney's
fees should be given preference over the other cases now pending in
this Court. Certainly, such should not be the case because there are
cases which by their nature require immediate or preferential atten-
tion by this Tribunal, likewise habeas corpus cases, labor cases and
criminal cases involving death sentence, let alone cases involving
properties and property rights of poor litigants pending decision or
resolution long before the Constitution of 1973. Nobility and exem-
plary forbearance were expected of Atty. David, who is old and expe-
rienced in the practice of the legal profession, from which he has
derived a great measure of economic well-being and independence.
Consequently, the filing of the motion for immediate execution
and the issuance of the writ of execution constitute a defiance and
usurpation of the jurisdiction of the Supreme Court. As a discipli-
nary measure for the preservation and vindication of the dignity of
this Supreme Tribunal, respondent Atty. J u a n T. David should be
REPRIMANDED for his precipitate action of filing a motion for
execution as well as Judge Jose H. Tecson for his improvident issu-
ance of a writ of execution while the case is pending appeal before
24
the Supreme Court.
12. Any improper c o n d u c t t e n d i n g , directly or indi-

rectly; to impede, obstruct, or d e g r a d e t h e administration of
justice
13. Publication w h i l e c a s e is p e n d i n g
"The publication of a criticism of a party or of the court to a
pending case, respecting the same, has always been considered as
misbehavior, tending to obstruct the administration of justice, and
subjects such persons to contempt proceedings. Parties have a con-
stitutional right to have their cases tried fairly in court, by an im-
partial tribunal, uninfluenced by publications or public clamor. Every
citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under
the protection and forms of law, free from outside coercion or inter-
ference. Any publication, pending a suit, reflecting upon the court,
the parties, the officers of the court, the counsel, etc., with reference
24
Corpus v. Court of Appeals, 98 SCRA 425; Vide President of PDIC v. Court of
Appeals, 249 SCRA 293, October 13, 1995.
634
to the suit, or tending to influence the decision of the controversy, is

contempt of court and is punishable. The power to punish for con-
tempt is inherent in all courts. The summary power to commit and
punish for contempt tending to obstruct or degrade the administra-
tion of justice, as inherent in courts as essential to the execution of
their powers and to the maintenance of their authority is a part of
25
the law of the land."
14. Criticisms in g o o d faith
S t a t e m e n t that J u d g e grossly ignorant of t h e rules of law

a n d p r o c e d u r e d o e s n o t c o n s t i t u t e improper conduct
Mere criticism or comment on the correctness or wrongness,
soundness or unsoundness of the decision of the court in a pending
case made in good faith may be tolerated; because if well-founded it
may enlighten the court and contribute to the correction of an error
if committed; but if it is not well taken and obviously erroneous, it
should, in no way, influence the court in reversing or modifying its
26
decision.
The statement t h a t respondent Judge was grossly ignorant of
the rules of law and procedure does not constitute improper conduct
that tends to impede, obstruct or degrade the administration of jus-
tice. The phrase "gross ignorance of the rules of law and procedure"
is ordinarily found in administrative complaints and is a necessary
description to support a petition which seeks the annulment of an
order of a judge wherein basic principles are disregarded. In the
absence of a showing t h a t the phrase was used to malign the court,
27
there is no contempt of court.
15. Confidential matters

It is also regarded as an interference with the work of the
courts to publish any matter which their policy requires should be
kept private, as for example the secrets of the jury room, or proceed-
28
ings in camera.
25
In re Kelly, 35 Phil. 944, 945.
M
In re Sotto, 82 Phil. Reports 595.
"Pimentel, Jr. v. Majaducon, 407 SCRA 356, July 29, 2003.
M
6 R.C.L., pp. 508-515; In re Lozano and Quevedo, 54 Phil. 801.
635
VOL. Ill
Thus, the publication of an article to the effect that a case had

been voted and decided in a certain way, before the promulgation by
the Supreme Court of the decision, was held to be a contempt of
29
court.
All proceedings for suspension of disbarment of attorneys, or
the suspension or removal of judges of the Courts of First Instance,
should be considered confidential until final disposition thereof. A
violation thereof may be punished as contempt, not only to enable
the court to investigate free from extraneous influence or interfer-
ence, but also to protect attorneys and judges from baseless charges
30
of disgruntled, vindictive and irresponsible clients and judges.
16. Publications after j u d g m e n t is final

Criticisms of courts after a case is finally disposed of does not
31
constitute contempt.
What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to ad-
minister justice in the decision of a pending case. There is no pend-
ing case to speak of when and once the court has come upon a
32
decision and has lost control either to reconsider or amend it.
17. Contempt for Post Litigation S t a t e m e n t s

33
As stated, however, in Re Almacen: "The rule that bars con-
tempt after a judicial proceeding has terminated has lost much of its
vitality." A complete disengagement from the settled rule was made
in Re Brillantes, 42 O.G. 59, where the editor of the Manila Guard-
ian was adjudged in contempt for publishing an editorial that the
Bar Examinations was conducted in a farcical manner after the
questions of validity of said examination has been resolved and closed.
18. Shift in J u r i s p r u d e n c e
It appears, therefore, that in the two cases decided by the Court,
the general rule that there can be no contempt in post-litigation
29
In re Subido, 81 Phil. 517.
30
In re Torres, 55 Phil. 799; In re Quirino, 76 Phil. 630.
3l
In re Gomez, 43 Phil. 376; In re Lozano, 54 Phil. 801.
32
People v. Salvador Alarcon, et al., 69 Phil. Reports 265.
33
3 1 SCRA 562.
636
publications is not necessarily all embracing under certain situa-

tions. From the shift in the judicial approach in Brillantes to the
position announced in Almacen, it can inevitably be concluded that
the termination of the case is not a guaranty of immunity from a
contempt charge for publications or utterances which are defama-
tory or libelous, depending on the purpose and effects thereof. In
other words, one may still be cited for contempt of court even after a
case had ended, where such punitive action is necessary to protect
the court and its dignity and to vindicate it from acts or conduct
intended or calculated to degrade, ridicule or bring the court into
34
disfavor and thereby erode or destroy public confidence in that court.
19. The P h i l i p p i n e Doctrine

The Court held t h a t the rationale for making a qualification to
the rule generally considered as the American doctrine, which rule
as herein qualified we now adopt and refer to as the Philippine
doctrine on this issue, is profoundly and eloquently explicated by
Justice Moran in Alarcon, to wit-
It is true that the Constitution guarantees the freedom of speech
and of the press. But license or abuse of that freedom should not be
confused with freedom in its true sense. Well-ordered liberty de-
mands no less unrelaxing vigilance against abuse of the sacred
guaranties of the Constitution than the fullest protection of their
legitimate exercise. As important as is the maintenance of a free
press and the free exercise of the rights of the citizens is the mainte-
nance of a judiciary unhampered in its administration of justice and
secure in its continuous enjoyment of public confidence. "The admin-
istration of justice and freedom of the press, though separate and
distinct are equally sacred, and neither should be violated by the
other. The press and the courts have correlative rights and duties
and should cooperate to uphold the principles of the Constitution
and the laws, from which the former receives its prerogatives and
35
the latter its jurisdiction." Democracy cannot long endure in a
country where liberty is grossly misused any more than where lib-
erty is illegitimately abridged.
xxx
"People v. Godoy, March 29, 1995, 243 SCRA 64.

3S
U . S . v. Sulene, 36 Fed., 2d., 230.
637
VOL. HI
If the contemptuous publication made by the respondent herein

were directed to this Court in connection with a case already de-
cided, the effect of the rule laid down by the majority is to deny this
court the power to vindicate its dignity. The mischievous conse-
quences that will follow from the situation thus sought to be permit-
ted, are both too obvious and odious to be stated. The administration
of justice, no matter how righteous, may be identified with all sorts
of fancied scandal and corruption. Litigants, discontented for having
lost their cases, will have every way to give vent to their resentment.
Respect and obedience to law will ultimately be shattered, and, as a
consequence, the utility of the courts will completely disappear.
It may be said that respect to courts cannot be compelled and
that public confidence should be a tribute to judicial worth, virtue
and intelligence. But compelling respect to courts is one thing and
denying the courts the power to vindicate themselves when out-
raged is another. I know of no principle of law t h a t authorized with
impunity a discontented citizen to unleash, by newspaper publica-
tions, the avalanche of his wrath and venom upon courts and judges.
If he believes that a judge is corrupt and t h a t justice has somewhere
been perverted, law and order require t h a t he follows the processes
provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. As Mr.
Justice Palmer, in speaking of the duty of courts and court officers,
has wisely said:
"Would it be just to the persons who are called upon to exercise
these powers to compel them to do so, and at the same time allow
them to be maltreated or libeled because they did so? How would a
suitor like a juryman trying his case who might expect he would be
assaulted, beaten, his property destroyed, or his reputation blasted,
in case he decided against his opponent? Apply the same thing to
judges, or the sheriff, and how long could organized society hold
together? With reference to a judge, if he has acted corruptly, it is
worse than a mere contempt. But it is apparent it would not be right
that the court of which he is a member should determine this, and
consequently the law has provided a plain and easy method of bring-
ing him to justice by a petition to Parliament; but, while the law
authorizes this, it does not allow infamous charges to be made against
him by persons, either in the newspapers or otherwise, with refer-
ence to how he has or shall discharge the duties of his office. It must
638
be apparent to all right thinking men than, if such were allowed to

be indulged in, it must end in the usefulness of the court itself being
destroyed, however righteous its judges may act. From what I have
said it must not be supposed that I think that the decisions of the
court, or the actions of the judges, or other persons composing the
court, are not to be discussed; on the contrary, I would allow the
freest criticism of all such acts if done in a fair spirit, only stopping
at what must injure or destroy the court itself and bring the admin-
istration of the law into disrepute, or be an outrage on the persons
whose acts are discussed, on when such discussion would interfere
with the right decision of the cause before the court."
The Court concluded:
We do not hesitate to hereby give our imprimatur to the
aforequoted opinion which, we fully believe, conforms to basic dog-
matic teachings on judicial and professional conduct requiring re-
spect for the judicial system and its members ethical standards
which this Court has, time and again, been trying to inculcate in the
36
minds of every member of the Bar and the public in general.
20. Limits on press freedom

How to determine whether an act or utterance is covered by
the protective mantle of the constitutional guaranty of liberty of the
press or whether it is already outside or an abuse thereof, is an
altogether different matter. We have perforce to draw from tenets in
American jurisprudence, although with discriminating choice, since
after all our present doctrines on contempt vis-a-vis constitutional
limitations trace their roots in the main to be lessons laid down and
37
born of the social and judicial experience in that jurisdiction.
The liberty of the press consist in the right to publish with
impunity the truth, with good motives and for justifiable ends,
whether it respects governments or individuals; the right freely to
publish whatever the citizen may please and to be protected against
any responsibility for so doing, except in so far as such publications,
from their blasphemy, obscenity, or scandalous character, may be a
public offense, or as by their falsehood and malice they may injuri-
36
37
639
VOL. Ill
ously affect the standing, reputation, or pecuniary interests of indi-

viduals. The true liberty of the press is amply secured by permitting
every man to publish his opinions; but it is due to the peace and
dignity of society to inquire into the motives of such publications,
and to distinguish between those which are meant for use and refor-
mation, and with an eye solely to the public good, and those which
are intended merely to delude and defame. To the latter description,
it is impossible that any good government should afford protection
38
and impunity.
The liberty of the press means that anyone can publish any-
thing he pleases, but he is liable for the abuse of this liberty. If he
does this by scandalizing the courts of his country, he is liable to be
punished for contempt. In other words, the abuse of the privilege
consists principally in not telling the truth. There is a right to pub-
lish the truth, but no right to publish falsehood to the injury of
others with impunity. It, therefore, does not include the right to
malign the courts, to libel and slander and utter the most flagrant
and indecent calumnies about the court and its officers, nor to in-
vade the sanctuaries of the temples of justice. Such practice and
such miscreants ought to be condemned, and the courts would de-
serve condemnation and abolition if they did not vigorously and
fearlessly punish such offenders. Such practices are an abuse of the
liberty of the press, and if the slander relates to the courts, it con-
cerns the whole public and is consequently punishable summarily as
a criminal contempt. It is therefore the liberty of the press that is
guaranteed, not the licentiousness. It is the right to speak the truth,
39
not the right to bear false witness against your neighbor.
This brings to fore the need to make a distinction between
adverse criticism of the court's decision after the case is ended and
"scandalizing the court itself." The latter is not criticism; it is per-
sonal and scurrilous abuse of judge as such, in which case it shall be
40
dealt with as a case of contempt.
It must be clearly understood and always borne in mind that
there is a vast difference between criticism or fair comment on the
one side and defamation on the other. Where defamation commences,
36
Supra.
39
S t a t e v. Shepherd, 76 S.W. 79, Supra.
40
S t a t e v. Hildreth, 74 A, 71, Supra.
640
true criticism ends. True criticism differs from defamation in the

following particulars: (1) Criticism deals only with such things as
invite public attention or call for public comment. (2) Criticism never
attacks the individual but only his work. In every case the attack is
on a man's acts, or on some thing, and not upon the man himself. A
true critic never indulges in personalities. (3) True criticism never
imputes or insinuates dishonorable motives, unless justice abso-
lutely requires it, and then only on the clearest proofs. (4) The critic
never takes advantage of the occasion to gratify private malice, or to
attain any other object beyond the fair discussion of matters of pub-
41
lic interest, and the judicious guidance of the public taste.
Generally, criticism of a court's rulings or decisions is not im-
proper, and may not be restricted after a case has been finally dis-
posed of and has ceased to be pending. So long as critics confine their
criticisms to facts and base them on the decisions of the court, they
commit no contempt no matter how severe the criticism may be; but
when they pass beyond that line and charge that judicial conduct
was influenced by improper, corrupt, or selfish motives, or that such
conduct was affected by political prejudice or interest, the tendency
is to create distrust and destroy the confidence of the people in their
42
courts.
21. C r i t i c i s m D i s t i n g u i s h e d from I n s u l t
Moreover, it has been held that criticism of courts after a case
is finally disposed of, does not constitute contempt and, to this effect,
a case may be said to be pending so long as there is still something
for the court to do therein. But criticism should be distinguished
from insult. A criticism after a case has been disposed of can no
longer influence the court, and on that ground it does not constitute
contempt. On the other hand, an insult hurled to the court, even
after a case is decided, can under no circumstance be justified. Mere
criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in
good faith may be tolerated; but to hurl the false charge that the
Supreme Court has been committing deliberately so may blunders
and injustices would tend necessarily to undermine the confidence
"State v. Shepherd, supra.

42
1 7 C.J.S., Contempt, Sec. 25, p. 64, Supra.
641
VOL. Ill
of the people in the honesty and integrity of its members, and conse-
quently to lower or degrade the administration of justice, and it
43
constitutes contempt.
22. The Philippine Rule on Post Litigation Statements
The Philippine rule, therefore, is that in case of a post-litiga-
tion newspaper publication, fair criticism of the court, its proceed-
ings and its members, are allowed. However, there may be a con-
tempt of court, even though the case has been terminated, if the
publications attended by either of these two circumstances: (1) where
it tends to bring the court into disrespect or, in other word, to scan-
dalize the court (There is ample jurisprudence exemplifying instances
of contemptuous post-litigation publications which have been found
to constitute an affront against the dignity of the court, and the
contemnor declared guilty of contempt. In these cases, the courts were
unanimous in holding that a wide chasm exists between fair criti-
cism, on the one hand, and abuse and verification of the courts and
the judges thereof, on the other.); or (2) where there is a clear and
present danger that the administration of justice would be impeded.
And this brings us to the familiar invocation of freedom of expres-
sion usually resorted to as a defense in contempt proceedings.
On the first ground, it has been said that the right of free
speech is guaranteed by the Constitution and must be sacredly
guarded, but that an abuse thereof is expressly prohibited by that
instrument and must not be permitted to destroy or impair the
efficiency of the courts or the public respect therefor and the confi-
44
dence therein.
23. The clear a n d p r e s e n t d a n g e r rule

Anent the second ground, the rule in American jurisprudence
is that false and libelous utterances present a clear and present
45
danger to the administration of justice. To constitute contempt,
criticism of a past action of the court must pose a clear and present
danger to a fair administration of justice, that is, the publication
must have an inherent tendency to influence, intimidate, impede,
43
M O R A N , RULES OF COURT, VOL. 3, 1980 ed., p. 365, Supra.
" 1 5 9 ALR 1391; People v. Godoy, March 29, 1995, 243 SCRA 64.
45
1 7 C.J.S., Contempt, Sec. 25, p. 64.
642
46
embarrass, or obstruct the co art's administration of justice. It is
not merely a private wrong against the rights of litigants and judges,
but a public wrong, a crime against the State, to undertake by libel
47
or slander to impair confidence in the judicial functions.
Elucidating on the matter, this Court, in Cabansag v. Fernandez,
48
et al., held as follows:
x x x The first, as interpreted in a number of cases, means that
the evil consequence of the comment or utterance must be "extremely
serious and the degree of imminence extremely high "before the
utterance can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. And this evil is primarily
the "disorderly and unfair administration of justice." This test es-
tablishes a definite rule in constitutional law. It provides the crite-
rion as to what words may be punished. Under this rule, the advo-
cacy of ideas cannot constitutionally be abridged unless there is a
clear and present danger t h a t such advocacy will harm the adminis-
tration of justice.
xxx
24. Serious D a n g e r of Substantive Evil to Administra-

tion of J u s t i c e
Thus, speaking of the extent and scope of the application of this
rule, the Supreme Court of the United States said "Clear and present
danger of substantive evils as a result of indiscriminate publications
regarding judicial proceedings justifies an impairment of the consti-
tutional right of freedom of speech and press only if the evils
are extremely serious and the degree of imminence extremely high,
x x x . The possibility of engendering disrespect for the judiciary as a
result of the published criticism of a judge is not such a substantive
evil as will justify impairment of the constitutional right of freedom
of speech and press." x x x
No less important is the ruling on the power of the court to
punish for contempt in relation to the freedom of speech and press.
We quote: "Freedom of speech and press should not be impaired
e
* Ibid., Sec. 30(b), p. 86.
47
S t a t e v. Shepherd, supra, Fn. 35; People v. Godoy, Supra.
48
1 0 2 Phil. 152 (1957).
643
VOL. Ill
through the exercise of the power to punish for contempt of court

unless there is no doubt that the utterance in question are a serious
and imminent threat to the administration of justice. A judge may
not hold in contempt one who ventures to publish anything that
tends to make him unpopular or to belittle him. The vehemence of
the language used in newspaper publications concerning a judge's
decision is not alone the measure of the power to punish for con-
tempt. The fires which it kindles must constitute an imminent, not
merely a likely, threat to the administration of justice." x x x
And in weighing the danger of possible interference with the
courts by newspaper criticism against the free speech to determine
whether such criticism may constitutionally be punished as con-
tempt, it was ruled that "freedom of public comment should in bor-
derline instances weigh heavily against a possible tendency to influ-
ence pending cases." x x x
The question in every case, according to Justice Holmes, is
whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that congress has a right to pre-
vent. It is a question of proximity and degree, x x x
25. Principle Applies E v e n after Termination of Case

Although Cabansag involved a contempt committed during the
pendency of a case, no compelling reason exists why the doctrines
enunciated therein should not be made applicable to vituperative
publications made after the termination of the case. Whether a case
is pending or not, there is the constant and ever growing need to
protect the courts from a substantive evil, such as invective conduct
or utterances which tend to impede or degrade the administration of
justice, or which calumniate the courts and their judges. At any rate,
49
in the cases of In re Bozorth, it was there expressly and categori-
cally ruled that the clear and present danger rule equally applies to
publications made after the determination of a case, with the court
declaring that a curtailment of criticism of the conduct of finally
concluded litigation, to be justified, must be in terms of some serious
50
substantive evil which it is designed to avert.
'118 A. 2d 430.
'Supra.
644
Adverting again to what was further said in State v. Shep-

61
herd, let it here be emphasized that the protection and safety of
life, liberty, property and character, the peace of society, the proper
administration of justice and even the perpetuity of our institutions
and form of government, imperatively demand that everyone law-
yer, layman, citizen, stranger, newspaperman, friend or foe shall
treat the courts with proper respect and shall not attempt to de-
grade them, or impair the respect of the people, or destroy the faith
of the people in them. When the temples of justice become polluted
or are kept pure and clean, the foundations of free government are
52
undermined, and the institutions itself threatened.
26. Criticism a n d insult distinguished; Criticisms by

lawyers
Thus, there may still be contempt by publication even after a
case has been terminated. The fact of the pendency or non-pendency
of a proceeding is immaterial in a disciplinary action against a law-
yer as an officer of the court to preserve the purity of the legal
53
profession. The rule now is post litigation utterances or publica-
tions, made by lawyers, critical of the courts and their judicial ac-
tuation, whether amounting to a crime or not, which transcend the
permissible bounds of fair comment and legitimate criticism and
thereby tend to bring them into disrepute or to subvert public confi-
dence in their integrity and in the orderly administration of justice
constitute grave professional misconduct which may be visited with
disbarment or other less appropriate disciplinary sanctions by the
Supreme Court in the exercise of the prerogative inherent in its duly
54
constituted guardian of morals and ethics of the legal fraternity.
27. The Contempt P o w e r and the Court's Disciplinary

Authority
There are two (2) related powers which come in to play where a
lawyer is the contemnor: the Court's inherent power to discipline
attorneys and the contempt power. The disciplinary authority of the
Court over members of the Bar is broader than the power to punish
bl
Supra.
"People v. Godoy, March 29, 1995, Supra.
S3
In re Brillantes, 42 O.G. 59.
b
*In re Almacen, 31 SCRA 562.
645
VOL. Ill
for contempt. Contempt of court may be committed both by lawyers

and non-lawyers, both in and out of court. Frequently, where the
contemnor is a lawyer, the contumacious conduct also constitutes
professional misconduct which calls into play the disciplinary au-
55
thority of the court.
28. Illustrative cases
a. The principle was exemplified in the celebrated case of
56
Enrique A. Zaldivar v. Sandiganbayan. During the pendency of a
petition for certiorari, prohibition and Mandamus in the Supreme
Court, involving the scope of the power and authority of the
Tanodbayan under the 1987 Constitution, naming as respondents
the Sandiganbayan and Tanodbayan Raul M. Gonzales, the follow-
ing Article came out in the 30 November 1987 issue of the Philippine
Daily Globe:
"Tanod Scores SC for Quashing Graft Case
TANODBAYAN Justice Raul M. Gonzales said yesterday the
Supreme Court order stopping him from investigating graft cases
involving Antique Gov. Enrique Zaldivar 'can aggravate the thought
that affluent persons can prevent the progress of a trial.'
What I am afraid of (With the issuance of the order) is that it
appears that while rich and influential persons get favorable actions
from the Supreme Court, it is difficult for an ordinary litigant, to get
his petition to be given due course,' Gonzales told the Daily Globe in
an exclusive interview.
Gonzales said the high tribunal's order 'heightens the people's
apprehension over the justice system in this country especially be-
cause the people have been thinking that only the small fry can get it
while big fishes go scot-free.'
Gonzales was reacting to an order issued by the tribunal last
week after Zaldivar petitioned the court to stop the Tanodbayan
from investigating graft cases filed against him.
65
Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707; Zaldivar v. Gonzales, G.R.
. 80578, 7 Oct. 1988, En Banc, Minute Resolution, Per Curiam, 166 SCRA 316.
66
Supra.
646
Zaldivar had charged that Gonzalez was biased in his investi-

gations because the latter wanted to help promote the political for-
tunes of a friend from Antique, lawyer Bonifacio Alentajan.
Acting on Zaldivar's petition, the high Court stopped Gonzalez
from investigating a graft charge against the governor, and from
instituting any complaint with the Sandiganbayan.
'While President Aquino had been prodding me to prosecute
graft cases even if they involve the high and mighty, the Supreme
Court had been restraining me.' Gonzalez said.
In accordance with the President's order, Gonzalez said he had
filed graft cases against two very powerful officials of the Aquino
government Commissioner Quintin Doromal of the Presidential
Commission on Good Government and Secretary Jaimil I.M. Dianlan
of the Office of Muslim Affairs and Cultural Communities.
'While I don't wish to discuss the merits of the Zaldivar petition
before the Supreme Court, I am a little bit disturbed that (the order)
can aggravate the thinking of some that affluent persons can prevent
57
the progress of a trial. He said.
xxx
After a Decision was rendered in the main case ordering re-
spondent Raul M. Gonzales to cease and desist from conducting
investigations and filing criminal cases with the Sandiganbayan or
otherwise exercising the powers and functions of the Ombudsman,
respondent Gonzales file a Motion for Reconsideration and stated
among others:
1. That he "had been approached twice by a leading member
of the court x x x and he was asked to 'go slow' on Zaldivar and not to
be too hard on him';
2. That he was approached and asked to 'refrain' from inves-
tigating the COA report on illegal disbursements in the Supreme
Court because 'it will embarrass the Court'; and
3. That "in several instances, the undersigned respondent
was called over the phone by a leading member of the Court and was
asked to dismiss the cases against (two Members of the Court).
6 7
E . Zaldivar v. Hon. Sandiganbayan and Hon. Raul M. Gonzales, 166 SCRA
316 (1988).
647
VOL. Ill
Respondent Gonzalez also attached three (3) handwritten notes

(Id., p. 136) which he claimed were sent by "some members of this
Honorable Court, interceding for cases pending before this office
(i.e., the Tanodbayan)." He either released his Motion for Reconsid-
eration with facsimiles of said notes to the press of repeated to the
press the above extraneous statements: the metropolitan papers for
the next several days carried long reports on those statements and
variations and embellishments thereof.
Whether or not the statements of respondent Gonzalez, may
reasonably be regarded by the Supreme Court as contumacious or
warranting exercise of the disciplinary authority of the Supreme
Court over members of the bar, the Supreme Court examined sam-
ples of the kinds of statements which have been held in our jurisdic-
tion as constituting contempt or otherwise warranting the exercise
of the Court's Authority.
The Supreme Court expressed the following reminder:
"It is well to recall that respondent Gonzales apart from being
a lawyer and an officer of the court, is also a Special Prosecutor who
owes duties of fidelity and respect to the Republic and to this Court
as the embodiment and the repository of the judicial power in the
government of the Republic. The responsibility of the respondent 'to
uphold the dignity and authority of this Court' and 'not to promote
distrust in the administration of justice' is heavier than t h a t of a
private practicing lawyer."
Respondent Gonzalez claims to be and he is of course, entitled
to criticize the rulings of this Court, to point out where he feels the
Court may have lapsed into error. Once more, however, the right of
criticism is not unlimited. Its limits were marked out by Mr. Justice
Castro in Re Almacen which are worth nothing.
The Supreme Court then went on to state:
"Considering the kinds of statements of lawyers discussed above
which the Court has in the past penalized as contemptuous or as
warranting application of disciplinary sanctions, this Court is com-
pelled to hold that the statements here made by respondent Gonzalez
clearly constitute contempt and call for the exercise of the discipli-
nary authority of the Supreme Court. Respondent's statements, es-
pecially the charge that the Court deliberately rendered an errone-
648
ous and unjust decision in the Consolidated Petitions, necessarily

implying that the justices of this Court betrayed their oath of office
merely to wreak vengeance upon the respondent here, constitute the
grossest kind of disrespect for the Court. Such statements very clearly
debase and degrade the Supreme Court and, through the Court, the
entire system of administration of justice in the country. That re-
spondent's baseless charges have had some impact outside the inter-
nal world of subjective intent, is clearly demonstrated by the filing
of a complaint for impeachment of thirteen (13) out of the then
fourteen (14) incumbent member of this Court, a complaint the
centerpiece of which is a repetition of the appealing claim of re-
spondent t h a t this Court deliberately rendered a wrong decision as
an act of reprisal against the respondent.
29. A Free P r e s s a n d I n d e p e n d e n t Judiciary

The principal defense of respondent Gonzalez is that he was
merely exercising his constitutional right of free speech. He also
invokes the related doctrines of qualified privileged communications
and fair criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guaran-
tee of free speech. No one seeks to deny him that right, least of all
this Court. What respondent seems unaware of is that freedoms, is
not absolute and that freedom of expression needs on occasion to be
adjusted to and accommodated with the requirements of equally
important public interests. One of these fundamental public inter-
ests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antimony between free
expression and the integrity of the system of administering justice.
For the protection and maintenance of freedom of expression itself
can be secured only within the context of a functioning and orderly
system of dispensing justice, within the context, in other words, of
viable independent institutions for delivery of justice which are
accepted by the general community. As Mr. Justice Frankfurter put
it:
"* * * A free press is not to be preferred to an independent
judiciary, nor an independent judiciary to a free press. Neither has
primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent
judiciary through which that freedom may, if necessary, be vindi-
649
VOL. Ill
cated. And one of the potent means for assuring judges their inde-
pendence is a free press."
Mr. Justice Malcolm of this Court expressed the same thought
in the following terms:
"The Organic Act wisely guarantees freedom of speech and press.
This Constitutional right must be protected in its fullest extent. The
court has heretofore given evidence of its tolerant regard for charges
under the Libel Law which come dangerously close to its violation.
We shall continue in this chosen path. The liberty of the citizens
must be preserved in all of its completeness. But license or abuse of
liberty of the press and of the citizens should not be confused with
liberty in its true sense. As important as is the maintenance of an
unmuzzled press and the free exercise of the rights of the citizens is
the maintenance of the independence of the Judiciary. Respect for
the Judiciary cannot be had if persons are privileged to scorn a
resolution of the court adopted for good purposes, and if such person
are to be permitted by subterranean means to diffuse inaccurate
accounts of confidential proceedings to the embarrassment of the
parties and the courts." (Underscoring supplied).
30. Limited Right of Lawyers

Only slightly (if at all) less important is the public interest in
the capacity of the Court effectively to prevent and control profes-
sional misconduct on the part of lawyers who are, first and foremost,
indispensable participants in the task of rendering justice to every
man.
Some courts have held, persuasively it appears to us, that a
lawyer's right of free expression may have to be more limited that of
a layman.
"* * * A lawyer belongs to a profession with inherited standards
of propriety and honor, which experience has shown necessary in a
calling dedicated to the accomplishment of justice. He who would
follow that calling must conform to those standards.
'Obedience to ethical precepts may require abstention from
what in other circumstances might be constitutionally protected
speech. * * *.'" (238 N.W. 2d at 769; underscoring supplied).
650
56
In Re Raggio, the Supreme Court of Nevada said:
"We are never surprised when persons, not ultimately involved
with the administration of justice, speak out in anger or frustration
about our work and the manner in which we perform it, and shall
protect their right to so express themselves. A member of the bar,
however, stands in a different position by reason of his oath of office
and standards of conduct which he is sworn to uphold conformity
with those standards has proven essential to the administration of
justice in our courts."
xxx xxx xxx
(487 P. 2d at 500-501; underscoring supplied).
In the matter of the Citation of Atty. C A . Frerichs, 238 N.W 2d
764 (1976), respondent attorney charged the Supreme Court of Iowa
with willfully avoiding constitutional questions raised by him thus
violating the constitutional rights of his clients. In answering the
citation for contempt, respondent argued that he was merely fulfill-
ing his duty to be critical and exercising his freedom of expression.
The Supreme Court of Iowa said:
"A lawyer, acting in a professional capacity, may have some
fewer rights of free speech than would a private citizen. As was well
explained in re Woodward, 300 S.W. 2d 385, 393-394 (Mo. 1957):
<* * * Neither the right of free speech nor the right to engage in
"political" activities can be so construed or extended as to permit any
such liberties to a member of the bar; respondent's action was in
express and exact contradiction of his duties as a lawyer. A layman
may, perhaps, pursue his theories of free speech or political activities
until he runs a foul of the penalties of libel or slander, or into some
infraction of our statutory law. A member of the bar can, and will, be
stopped at the point where he infringes our Canons of Ethics; and if
he wishes to remain a member of the bar he will conduct himself in
accordance therewith. * * *.'
The United States Supreme Court had before it an attorney
disciplinary proceeding in re Sawyer, 360 U.S. 622, 79 S. Ct. 1376, 3
L. Ed. 2d 1473 (1959). On the 'free speech' issue respondent raises
M
4 8 7 P . 2d 499(1971).
651
VOL. Ill
here, Mr. Justice Stewart, concurring in result, clearly was speaking

for at least five members of the court when he said:
"But it is the cardinal condition of all such criticism that it
shall be bona fide, and shall not spill over the walls of decency and
propriety. A wide chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the judges thereof, on the
other. Intemperate and unfair criticism is a gross violation of the
duty of respect to courts. It is such a misconduct that subjects a
lawyer to disciplinary action."
The lawyer's duty to render respectful subordination to the courts
is essential to the orderly administration of justice. Hence, in the
assertion of their client's rights, lawyers even those gifted with
superior intellect are enjoined to rein up their tempers.
31. Nature and Manner of Criticism

The instant proceeding is not addressed to the fact that re-
spondent has criticized the Court: it is addressed rather to the na-
ture of that criticism or comment and the manner in which it was
carried out.
Respondent Gonzalez disclaims an intent to attack and deni-
grate the Court. The subjectivities of the respondent are irrelevant
so far as characterization of his conduct or misconduct is concerned.
He will not, however, be allowed to disclaim the natural and plain
import of his words and acts. It is upon the other hand, not irrel-
evant to point out that respondent offered no apology in his two (2)
explanations and exhibited no repentance.
Respondent Gonzalez also defends himself contending that no
injury to the judiciary has been shown, and points to the fact that
this Court denied his Motion for Reconsideration of its per curiam
Decision on 27 April 1988 and reiterated and amplified that Deci-
sion in its Resolution of 19 May 1988. In the first place, proof of
actual damage sustained by a court or the judiciary in general is not
essential for a finding of contempt or for the application of the disci-
plinary authority of the Court. Insofar as the Consolidated Petitions
are concerned, this Court after careful review of the bases of its 27
April 1988 Decision, denied respondent's motion for Reconsideration
thereof and rejected the public pressures brought to bear upon this
Court by the respondent through his much publicized acts and state-
652
merits for which he is here being required to account. Obstructing

the free and undisturbed resolution of a particular case is not the
only species of injury that the Court has a right and a duty to
prevent and redress. What is at stake in cases of this kind is the
integrity of the judicial institutions of the country in general and of
the Supreme Court in particular. Damage to such institutions might
not be quantifiable at a given moment in time but damage there will
surely be if acts like those of respondent Gonzalez are not effectively
stopped and countered. The level of trust and confidence of the gen-
eral public in the courts, including the court of last resort, is not
easily measured; but few will dispute t h a t a high level of such trust
and confidence is critical for the stability of democratic government.
Respondent Gonzalez lastly suggests t h a t punishment for con-
tempt is not the proper remedy in this case and suggests that the
members of this Court have recourse to libel suits against him.
While the remedy of libel suits by individual members of this Court
may well be available against respondent Gonzalez, such is by no
means an exclusive remedy. Moreover, where, as in the instant case,
it is not only the individual members of the Court but the Court
itself as an institution t h a t has been falsely attacked, libel suits
cannot be an adequate remedy.
The Court concludes that respondent Gonzalez is guilty both of
contempt of court in facie curiae and of gross misconduct as an
officer of the court and member of the Bar.
ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul
M. Gonzalez from the practice of law indefinitely and until further
59
orders from this Court, the suspension to take effect immediately.
32. Respect due to Courts a n d Judicial Officers

a. Of more recent vintage is the case of Atty. J. Cezar Sangco,
a former judge of the Metropolitan Trial Court at Manila. In a Mo-
tion for Reconsideration which he filed with the Supreme Court in
60
Jose Sangalang v. Intermediate Appellate Court, Atty. Sangco made
the following remarks:
59
Zaldivar v. Sandiganbayan, 166 SCRA 316 (1988).
"177 SCRA 87(1989).
653
VOL. Ill
"The Decision of this Court in the above-entitled case reads

more like a Brief for Ayala
(t)he Court not only put to serious question its own integ-
rity and competence but also jeopardized its own campaign against
graft and corruption undeniably pervading the judiciary, x x x
The blatant disregard of controlling, documented and admitted
facts not put in issue, such as those summarily ignored in his case;
the extraordinary efforts exerted to justify such arbitrariness and
the very strained and unwarranted conclusions drawn therefrom,
are unparalleled in the history of this Court.
(T)o ignore the fact that Jupiter Street was originally con-
structed for the exclusive benefit of the residents of Bel-Air Village,
or rule that respondent Court's admission of said fact is "inaccu-
rate", as Ayala's Counsel himself would like to do but did not even
contend, is a manifestation of this Court's unusual partiality to Ayala
and puts to serious question its integrity on that account.
(i)t is submitted that this ruling is the most serious reflection
on the Court's competence and integrity and exemplifies its mani-
fest partiality towards Ayala. It is a blatant disregard of documented
and incontrovertible and uncontroverted factual findings of the trial
court fully supported by the records and the true significance of
those facts which both the respondent court and this Court did no
bother to read and consequently did not consider and discuss, least
of all in the manner it did with respect to those in which it arrived at
conclusions favorable to Ayala.
To totally disregard Ayala's written letter of application for
special membership in BAVA which clearly state that such member-
ship is necessary because it is a new development it their relation-
ship with respect to its intention to give its commercial lot buyers an
equal right to the use of Jupiter Street without giving any reason
therefor, smacks of judicial arrogance.
(A)re all these unusual exercise of such arbitrariness above
suspicion?
Will the current campaign of this Court against graft and cor-
ruption in the judiciary be enhanced by such broad discretionary
power of court?"
654
Rule 71 CONTEMPT
Sec. 3
The foregoing statements were considered by the Supreme Court

as "disparaging, intemperated, and uncalled-for." His suggestions
that the Court might have been guilty of graft and corruption in
acting on these cases are not only unbecoming, but comes, as well, as
an open assault upon the Court's honor and integrity. In rendering
its judgment, the Court yielded to the records before it, and to the
records alone, and not to outside influences, much less, the influence
of any of the parties. Atty. Sangco, as a former judge of an inferior
court, should know better t h a n in any litigation, one party prevails,
but his success will not justify indictments of bribery by the other
party. He should be aware that because of his accusations, he has
done an enormous disservice to the integrity of the highest tribunal
and to the stability of the administration of justice in general."
xxx
"To be sure, Atty. Sangco is entitled to his opinion, but not to a
license to insult the Court with derogatory statements and recourses
to arguments ad hominem. In that event, it is the Court's duty "to
act to preserve the honor and dignity... and to safeguard the morals
and ethics of the legal profession."
"We are not satisfied with his explanation that he was merely
defending the interests of his clients. As we held in Laureta, a law-
yer's 'first duty is not to his client but to the administration of
justice; to that end, his client's success is wholly subordinate; and
his conduct ought to and must always be scrupulously observant of
law and ethics.'And while a lawyer must advocate his client's cause
in utmost earnest and with the maximum skill he can marshal, he is
not a liberty to resort to arrogance, intimidation, and innuendo.
xxx
Atty. Sangco himself admits that "(a)s a judge I have learned to
live with and accept with grace criticisms of my decisions." Appar-
ently, he does not practice what he preaches. Of course, the Court is
not unreceptive to comment and critique of its decisions, but pro-
vided they are fair and dignified. Atty. Sangco has transcended the
limits of fair comment for which he deserves this Court's rebuke.
In our "show-cause" Resolution, we sought to hold Atty. Sangco
in contempt, specifically, for resort to insulting language amounting
to disrespect toward the Court within the meaning of Section 1, of
Rule 71, of the Rules of Court. Clearly, however, his act also consti-
655
VOL. Ill
tutes malpractice as the term is defined by Canon 11 of the Code of

61
Professional Responsibility.
33. Abuse of legal process or unlawful interference
therewith
Any abuse of legal process or proceeding is also contempt un-
der subdivision (c) as when a person who is not a pauper alleges
62
under oath to be such in order to avoid payment of costs. The
63
institution of fictitious suits merely to obtain an opinion of the court,
64
or an application for continuance of trial on a pretense of sickness
constitutes abuse of process, and may be punished as contempt.
Unlawful interference with judicial process is also contempt,
such as procuring unlawfully the arrest of a person for the purpose
65
of preventing him from testifying as a witness, or any unlawful
66 67
interference with the possession of a receiver or of an assignee.
And the attorney on whose advice such interference is committed is
68
also guilty of contempt.
SEC. 4. How proceedings commenced. P r o c e e d i n g s for

indirect contempt m a y be initiated motu proprio by the court
against w h i c h t h e c o n t e m p t w a s c o m m i t t e d by an order or
any other formal charge requiring t h e r e s p o n d e n t to s h o w
cause w h y he should n o t be p u n i s h e d for contempt.
In all other cases, c h a r g e s for indirect c o n t e m p t shall be
commenced by a verified p e t i t i o n w i t h s u p p o r t i n g particu-
lars and certified true copies of d o c u m e n t s or papers in-
volved therein, a n d u p o n full c o m p l i a n c e w i t h t h e require-
ments for filing initiatory p l e a d i n g s for civil a c t i o n s in the
61
S a n g a l a n g v. IAC, G.R. No. 71169; Bel-Air Village Ass. v. IAC, G.R. 74376;
Bel-Air Village Ass. v. CA, G.R. No. 76394; Bel-Air Village Subd. v. IAC, G.R. No.
82281, Aug. 30, 1989, 177 SCRA 87.
62
Makapagal and Figueroa v. Santamaria, 55 Phil. 418.
63
7n re Teopel, 102 N.W. 369, 139 Minch. 85.
64
Carter v. Commonwealth, 32 S.E. 780; 96 Va 7 9 1 , 4 5 LR.A. 310; 3 Moran, 1980
Ed., p. 363.
65
U n i t e d States v. Jaca, 26 Phil. 100.
66
In re Gomez, 6 Phil. 647.
67
C u Unjieng Hijos v. Mitchell, 58 Phil. 476.
68
C u Unjieng Hijos v. Mitchell, Supra; MORAN, Supra.
656
court concerned. If t h e contempt charges arose out of or are

related to a principal action p e n d i n g in the court, the peti-
tion for contempt shall allege that fact but said petition shall
be docketed, heard a n d d e c i d e d separately, unless the court
in its discretion orders the consolidation of the contempt
charge a n d the principal action for joint hearing and deci-
sion, (n)
COMMENT:
1. Source of Rule
This rule is new but were culled from decisions of the Supreme
Court.
Formerly, Section 3, Rule 71 of the Rules of Court which governs
contempt proceedings only requires (a) that a charge be made in
writing and (b) that an opportunity be given to the accused to be
heard by himself or counsel for certain acts enumerated in said rule,
after which a person may be punished for contempt. As held in
1
Aguador v. Enerio, there is no particular form prescribed by the
Rules of Court in which a contempt charge shall be framed or de-
scribed. There is also no requirement in the Rules of Court that a
copy of the contempt charge shall be served on the respondent named
therein when it is filed in court. All that Section 3, Rule 71 (formerly
Rule 64) requires on this matter is that a charge in writing be filed.
The respondent in contempt proceedings, is, of course entitled to
know the nature and cause of the accusation against him, but this
requirement is properly satisfied when the court, after the respond-
ent appears before it, reads to the respondent the complaint or fur-
nishes him a copy thereof." Likewise, during the promulgation of the
decision, the accused-respondent need not be present. It is enough
that he is notified of the same either personally or by registered
mail. Where the petitioner was duly notified of the charges against
him and was given an opportunity to be heard, after which he was
informed and shown a copy of the COMELEC resolution finding him
guilty of contempt, there was sufficient compliance with due process
2
requirement in the contempt proceeding against him.
*37 SCRA 140

2
Geronimo v. Ramos, 136 SCRA 435.
657
VOL. Ill
Thus, all that the law requires is that there be a charge in

writing duly filed in court and an opportunity given to the person
charged to be heard by himself or counsel. What is the most essen-
tial is that the alleged contemner was granted an opportunity to
3
meet the charges against him and to be heard in his defenses.
The present rule provides for the two modes of commencing
proceedings for indirect contempt:
(a) It may be initiated motu proprio by the court against
which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be
punished for contempt.
(b) In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars and
certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory plead-
4
ings for civil actions in the court concerned.
(c) If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, h e a r d a n d
decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for
joint hearing and decision.
a. Contempt P r o c e e d i n g s Governed by Special R u l e s

Contempt proceedings are governed by special rules and not
the ordinary rules in Civil Action which are merely supplementary
to new special rules. It is a special civil action governed by Rule 71 of
the Rules of Court. A contempt charge partakes of the nature of a
criminal prosecution and should follow the proceeding similar to
5
criminal prosecution.
3
Nazareno v. Barnes, 136 SCRA 57.
"All initiatory pleadings should be accompanied with a certification of non-fo-
rum shopping. (Sec. 5, Rule 7) See also Montenegro v. Montenegro, G.R. No. 156829,
June 8, 2004, 431 SCRA 415.
5
F u e n t e s v. Leviste, 117 SCRA 958; see also Santiago v. Anunciacion, 184 SCRA
118 (1990).
658
b. Procedure
Briefly, the procedure for the punishment of a person alleged to
have committed an act amounting to indirect contempt are as fol-
lows:
1. A charge must be filed and a copy thereof furnished the
person who must be given the opportunity to answer and be heard;
2. The charge shall be filed with the court or judge against
whom the alleged contemptuous act was committed; Provided, That
if the contempt was committed against an inferior court or judge,
the charge may be filed with the Regional Trial Court of the province
or city in which the inferior court is situated.
Under the present rule: contempt proceedings for indirect con-
tempt should be commenced by a verified petition and not by mere
motion as provided for in Section 4 which explicitly lays down the
6
manner in which indirect contempt proceedings may be filed.
However, contempt may be initiated by the Court motu proprio
for disregarding its previous orders, independently of the motions
filed by the parties. NO VERIFIED PETITION IS REQUIRED IF
PROCEEDINGS FOR INDIRECT CONTEMPT ARE INITIATED
IN THIS MANNER and the absence of a verified petition does not
7
affect the procedure adopted;
3. The accused may be released on bail pending the hearing
of the charge;
4. On the date of the hearing, the court shall proceed to
investigate the charge and consider the answer or testimony which
the accused may make or offer; and
5. If found guilty of contempt, he shall be punished accord-
8
ingly.
C o m m i s s i o n e r Rufus B. Rodriquez v. Judge Rodolfo R. Bonifacio, 344 SCRA

519, November 6, 2000.
7
Leonidas v. Supnet, 398 SCRA 38, Feb. 2 1 , 2003; See also Montenegro v.
Montenegro, G.R. No. 156829, June 8, 2004, 431 SCRA 415.
8
People v. Navarro, 121 SCRA 707.
659
VOL. Ill
c. Necessity of Written Charge for Indirect Contempt

A written charge is necessary pursuant to Section 4, Rule 71 of
the Rules of Court. The written charge may partake the nature of:
(1) an order requiring the respondent (not accused) to show cause
why he should not be punished for contempt having committed the
contemptuous acts imputed against him; or (2) a verified petition for
contempt by way of special civil action under Section 4, Rule 71 of
the Rules of Court. The first procedure applies only where the indi-
rect contempt is committed against a court or judge possessed and
clothed with contempt powers. The second, if the contemptuous act
was committed not against a court nor a judicial officer with author-
9
ity to punish contemptuous acts. The present rule requires a veri-
fied petition even if the contemptuous act was committed against a
10
court or judicial officer.
d. Contempt Void in Absence of Written Charge.

n
It was held in Felizmena v. Galano, that there can be no
12
indirect contempt absent any prior written charge.
In another case, for failure of the lawyer to appear on time the
Judge ordered the petitioner to explain her failure to come to court
on time or at 8:30 a.m. of that day. That order did not yet amount to
a show-cause order or a citation directing an explanation why she
should not be held in contempt of court for tardiness.
The Explanation of the petitioner which was forthwith submit-
ted was an explanation of her failure to come on time, as was, in fact,
called for in the order.
The respondent Judge issued the challenged order of 12 April
1995 mainly because of his perception that the explanation was a
"downright lie," and for the other grounds enumerated in the order,
viz., the petitioner's: (a) verbal clash with the branch clerk of court
on 11 April 1995 when the latter prevented the former from entering
the Judge's chamber; (b) previous improper attempts to enter the
9
Nazareno v. Barnes, 136 SCRA 57; See Rodriguez v. Bonifacio (supra).
^Commissioner Rufus B. Rodriquez v. Judge Rodolfo R. Bonifacio, A.M. No.
RTJ-99-1510, November 6, 2000, supra.
u
1 3 1 SCRA 165.
l2
Vide Pacuribot v. Judge Lim, A.M. No. RTJ- 97-1382, July 1 7 , 1 9 9 7 , 275 SCRA
543.
660
Rule 71 CONTEMPT
Sec. 4
said chambers; (c) improper conduct in asking the staff of the court
to carry her traveling bags or paraphernalia, buy food, deposit her
pay checks, or run errands for her; (d) defiance of the respondent
Judge's Memorandum No. 1-95, dated 28 March 1995; and (e) fail-
ure to remain in court while criminal proceedings were going on
resulting in the dismissal of a case due to technicality.
Clearly then, the petitioner was cited and punished for con-
tempt not only because of her "failure to come to court on time" in
the morning of 11 April 1995, but also because of the foregoing acts
or omission. Her tardiness as a ground for contempt was, however,
relegated to the background, for the respondent Judge had found
other grounds for contempt.
The grounds or reasons enumerated by the respondent Judge
could constitute grounds for indirect contempt under Section 3, Rule
71 of the Rules of Court, probably under paragraphs (a) and (d)
thereof. (Viz.: [a] misbehavior of an officer of a court in the perform-
ance of his official duty or in his official transaction, and [d] any
improper conduct tending, directly and indirectly to impede, obstruct
or degrade the administration of justice) He cannot, therefore, im-
mediately impose a penalty, but must faithfully comply with the due
process requirements prescribed in the said Section 3, namely, the
filing of a charge in writing and giving the accused an opportunity to
be heard by himself or by counsel. The charge under this section
13
may be made by the judge himself. And considering that the latter
seemed to have personal knowledge of such alleged grounds, it was
even his duty if he were honestly convinced of the viability of such
14
grounds to institute the proceedings. If the answer to the charge if
satisfactory, the contempt proceedings ends. Otherwise, it shall pro-
15
ceed in accordance with the Rules. On the day set for the hearing,
the court shall proceed to investigate the charges and consider such
16
answer or testimony as the respondent may make or offer. Since
contempt of court proceedings are commonly treated as criminal in
their nature, the mode of procedure and rules of evidence therein
13
People v. Venturanza, 98 Phil. 211 (1956).
14
In re Antonio Quirino v. Director of Prisons, 76 Phil. 630 (1946).
15
Bakewell v. Lloren, 12 SCRA 691 (1964).
16
Section 5, Rule 71, Rules of Court.
661
VOL. Ill
17
are assimilated to criminal prosecutions. Accordingly, if reasonable
doubt in fact or in law exists as to the alleged contemner's guilt, the
18
doubt shall be resolved in favor of the alleged contemner. The
penalty, if warranted, can only be imposed after the alleged con-
19
temner shall have been heard.
In finding the petitioner guilty of the aforementioned acts and
imposing upon her the penalty of a fine without granting her an
opportunity to answer the imputed falsehood and improprieties and
an opportunity to be heard, the respondent Judge disregarded the
requirements of due process in contempt proceedings and, therefore,
acted without or in excess of jurisdiction or with grave abuse of
20
discretion.
e. Applicability of Criminal P r o c e d u r e
A contempt charge being in the nature of a criminal prosecu-
tion, courts should follow the procedure similar to criminal prosecu-
21
tion such as by providing the respondent with counsel. Where the
proceedings on the contempt charge have been vitiated by lack of
22
due process, the writ of habeas corpus is available.
The mode of procedure in contempt proceedings is assimilated
23
as far as practicable to those adapted to criminal prosecutions.
Thus, the provisions in criminal procedure t h a t the judgment oft he
appellate court shall affect even those accused who did not appeal
insofar as said judgment is favorable to him, may be applied to one
24
who did not question the contempt order against him.
f. Information N e e d Not be F i l e d
Contempt, however, is not a criminal offense within the mean-
ing of Sec. 87 of the Judiciary Act of 1948, and need not be instituted
17
Lee Yick Hon. v. Collector of Customs, 41 Phil. 548 (1921); Benedicto v. Canada,
21 SCRA 1066 (1967); Delgra v. Gonzales, 31 SCRA 237 (1970).
18
People v. Alarcon, 69 Phil. 265 (1939).
19
Yatco v. CA, 37 SCRA 174 (1971).
20
C a l u a g v. Pecson, 82 Phil. 8, 13 (1948); Paredes-Garcia v. Court of Appeals,
261 SCRA 705.
21
Flores v. Ruiz, 90 SCRA 428.
22
Ibid.\ Soriano v. Court of Appeals, G.R. No. 128938, June 4, 2 0 0 4 , 4 3 1 SCRA 1.
23
L e e Yick Hon v. Collector of Customs, 41 Phil. 548.
24
Adorio v. Bersamin, 273 SCRA 217, June 10, 1997.
662
by means of an information. The institution of charges by the pros-

ecuting official is not necessary to hold persons guilty of civil or
criminal contempt amenable to trial and punishment by the court.
All that the law requires is t h a t there be a charge in writing duly
filed in court and an opportunity to the person charged to be heard
25
by himself or counsel.
Although contempt proceedings are in their nature penal, no
procedural necessity exists for the filing of separate criminal cases,
26
as the acts complained of are incidents in the same proceedings.
g. R i g h t of r e s p o n d e n t to be i n f o r m e d of c h a r g e s
against h i m
The respondent in a contempt proceedings, is entitled to know
the nature and cause of the accusation against him, but this require-
ment is properly satisfied when the court, after the respondent ap-
pears before it, reads to the respondent the complaint or furnishes
him a copy thereof. Likewise, during the promulgation of the deci-
sion, the accused-respondent need not be present. It is enough that
he is notified of the same either personally or by registered mail.
Where the petitioner was duly notified of the charges against him
and was given an opportunity to be heard, after which he was in-
formed and shown a copy of the COMELEC resolution finding him
guilty of contempt, there was sufficient compliance with due process
27
requirement in the contempt proceeding against him.
Criminal proceedings are not required to take any particular
form so long as the substantial rights of the accused are preserved.
What is most essential is that the alleged contemner be granted an
opportunity to meet the charges against him and to be heard in his
28
defense.
26
N a z a r e n o v. Barnes, Supra.
M
Supra; Clapano v. Gapultos, 132 SCRA 429.
"Geronimo v. Ramos, 136 SCRA 435. The principle may be deemed modified by
the 1997 Rules of Civil Procedure which requires a verified petition and not a mere
motion as provided for in Section 4, Rule 71 unless the contempt proceedings was
initiated by the court motu proprio. Rodriguez v. Bonifacio (supra); Leonidas v. Supnet
(supra).
^Remnan Enterprises v. CA, G.R. No. 107671, February 26, 1997, 268 SCRA
688.
663
Sec. 4 REMEDIAL LAW Rtde 71
VOL. Ill
h. Court may motu proprio cite a person for contempt

When it comes to the knowledge of the presiding justice of a
court that contemptuous articles are published in a newspaper, the
court of its on motion can and should institute proceedings for con-
tempt. Such a power of the court is necessary for its own protection
against an improper interference with the administration of jus-
29
tice.
i. Necessity of h e a r i n g
Previous hearing is required under Rule 71, Section 3 of the
Revised Rules of Court, where an order of arrest and the subsequent
detention of petitioner for her failure to appear at a hearing set by
the trial judge is based on the commission of an indirect contempt.
Without that hearing the order violated the rules and deprived the
30
petitioner of her liberty without due process.
Satisfying the R e q u i r e m e n t s of D u e P r o c e s s
Summing up, the procedural requisites before the accused may
be punished for indirect contempt: (1) a complaint in writing which
may either be a motion for contempt filed by a party or an order
issued by the court requiring a person to appear and explain his
conduct; and (2) an opportunity for the person charged to appear
and explain his conduct. All that the law requires is t h a t there be a
charge in writing duly filed in court and an opportunity given to the
person charged to be heard by himself or counsel. What is most
essential is that the alleged contemner be granted an opportunity to
meet the charges against him and to be heard in his defenses. This
is due process which must be observed at all times. Criminal pro-
ceedings are not required to take any particular form so long as the
31
substantial rights of the accused are preserved.
In Mutuc v. Court of Appeals, the Court explained what due
process means in contempt proceedings, to wit:
29
In re Quirino, 76 Phil. 630; People v. Venturanza, 98 Phil. 211; Fernandez v.
Bello, 107 Phil. 1140 (1960).
30
Bulado v. Judge Navarro, G.R. No. 5 9 4 4 2 , 2 Feb. 1988, En Banc, Minute Resolu-
tion. Soriano v. Court of Appeals, G.R. No. 128938, J u n e 4, 2004, 431 SCRA 1.
31
B r u a n v. The People of the Philippines, 431 SCRA 90, June 4, 2004.
664
There is no question that the "essence of due process is a

hearing before conviction and before an impartial and disinter-
ested tribunal" (Rollo, p. 173) but due process as a constitu-
tional precept does not always, and in all situations, require a
trial-type proceeding (Zaldivar vs. Gonzales, 166 SCRA 316
[1988] citing the rule in Torres vs. Gonzales, 152 SCRA 272
[1987]). The essence of due process is to be found in the reason-
able opportunity to be heard and submit any evidence one may
have in support of one's defense (Tajonera vs. Lamaroza, 110
SCRA 438 [1981] and Richards vs. Asoy, 152 SCRA 45 [1987]).
"To be heard" does not only mean verbal arguments in court; or
may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded,
there is no denial of procedural due process (Juanita Yap Say
vs. IAC, G.R. No. 73451, March 28, 1988).
It bears stressing that indirect contempt proceedings partake

of the nature of a criminal prosecution. Thus, strict rules that gov-
ern criminal prosecutions also apply to a prosecution for criminal
contempt; the accused is to be afforded many of the protections
provided in regular criminal cases; and proceedings under statutes
governing them are to be strictly construed.
A respondent in a contempt charge must be served with a copy
of the motion/petition. Unlike in civil actions, the Court does not
issue summons on the respondent. While the respondent is not re-
quired to file a formal answer similar to that in ordinary civil ac-
tions, the court must set the contempt charge for hearing on a fixed
date and time on which the respondent must make his appearance
to answer the charge. On the date and time of the hearing, the court
shall proceed to investigate the charges and consider such answer or
testimony as the respondent may make or offer. The mode of proce-
dure and rules of evidence therein are assimilated to criminal pros-
ecutions. If he fails to appear on that date after due notice without
justifiable reason, the court may order his arrest, just like the ac-
cused in a criminal case who fails to appear when so required. The
court does not declare the respondent in a contempt charge in de-
32
fault.
32
B r u a n v. The People of the Philippines, 431 SCRA 90, June 4, 2004.
665
VOL. Ill
j. Separate orders for direct and indirect contempt

Where a lawyer fails to obey a subpoena and likewise commit-
ted direct contempt for having disturbed the preliminary examina-
tion being conducted by the judge by repeatedly driving his jeep and
honking its horn in the vicinity of the court session hall for which
the lawyer was ordered arrested and confined in jail, the judge should
issue a separate order for such direct contempt, and another order
requiring the lawyer to show cause why he should not be punished
for disobedience to its process, to give the lawyer a chance to explain
33
his failure to appear as a witness.
k. Contempt by non-party
Generally no contempt is committed by one not a party to the
case. The remedy against such person is either a civil or criminal
34
action. However, persons who are not parties in a proceeding may
be declared guilty of contempt for willful violation of an order issued
in a case if said persons are guilty of conspiracy with any one of the
35
parties in violating the Court's order.
1. Forbidden act m u s t be clearly set forth

Well-settled is the rule that an act to be considered contemptu-
ous must be clearly contrary or prohibited by the order of the Court.
A person cannot, for disobedience, be punished for contempt unless
the act which is forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable doubt or uncer-
36
tainty as to what specific act or thing is forbidden or required.
SEC. 5. Where charge to be filed. Where t h e charge for

indirect contempt h a s b e e n c o m m i t t e d against a Regional
Trial Court or a court of equivalent or h i g h e r rank, or against
an officer appointed by it, t h e charge m a y be filed w i t h s u c h
court. Where s u c h contempt h a s b e e n c o m m i t t e d against a
33
Gardones v. Delgado, 58 SCRA 58.
34
Ayog v. Cusi, 118 SCRA 492.
35
D e s a Enterprises v. Securities and Exchange Commission, 117 SCRA 321.
36
C u a v. Lecaros, 161 SCRA 480 (1988), citing Anglo-Fil Trading Corporation v.
Lazaro, 124 SCRA 494, 525, September 2, 1983; Heirs of Eugenia Roxas, Inc. v. IAC,
173 SCRA 581 (1989).
666
lower court the charge m a y be filed w i t h the Regional Trial

Court of t h e place in w h i c h t h e l o w e r court is sitting; but the
proceedings m a y also be instituted in s u c h l o w e r court sub-
ject to appeal to t h e Regional Trial Court of s u c h place in the
same m a n n e r as provided in Section 2 of this Rule. (4a)
COMMENT:
1. Source of Rule
SEC. 4. Charge; where to be filed. Where the contempt, under
the preceding section, has been committed against a superior court or
judge, or against an officer appointed by it, the charge may be filed
with such superior court. Where such contempt has been committed
against an inferior court or judge, the charge may be filed with the
Court of First Instance of the province or city in which the inferior
court is sitting; but the proceedings may also be instituted in such
inferior court subject to appeal to the Court of First Instance of such
province or city in the same manner as is provided in Section 2 of this
rule. And where a contempt punishable under these rules has been
committed against an administrative officer or any non-judicial per-
son, committee, or other body, the charge may be filed with the Court
of First Instance of the province or city in which the contempt has
been committed.
Under the Present Rule.
a. Where the charge for indirect contempt has been commit-
ted against a Regional Trial Court or a court of equivalent or higher
rank, or against an officer appointed by it, the charge may be filed
with such court.
b. Where such contempt has been committed against a lower
court the charge may be filed with the regional trial court of the
place in which the lower court is sitting.
c. but the proceedings may also be instituted in such lower
court subject to appeal to the regional trial court of such place in the
same manner as provided in Section 2 of this Rule.
667
VOL. Ill
3. Notes and Cases

a. Jurisdiction in Contempt proceedings where the Alleged
Contempt is Committed Against a Lower Court while the Case is
Pending in the Appellate or Higher Court.
The General Rule: Court Contemned

The Supreme Court explained that in whatever context it may
arise, contempt of court involves the doing of an act, or the failure to
do an act, in such a manner as to create an affront to the court and
the sovereign dignity with which it is clothed. As a matter of practi-
cal judicial administration, jurisdiction has been felt properly to rest
in only one tribunal at a time with respect to a given controversy,
partly to visit the full personal effect of the punishment on a contem-
nor, the rule has been that no other court than the one contemned
will punish a given contempt.
The rationale that is usually advanced for the general rule that
the power to punish for contempt rests with the court contemned is
that contempt proceedings are sui generis and are triable only by the
court against whose authority the contempts are charged; the power
to punish for contempt exists for the purpose of enabling a court to
compel due decorum and respect in its presence and due obedience
to its judgments, orders and processes: and in order that a court may
compel obedience to its orders, it must have the right to inquire
whether there has been any disobedience thereof, for to submit the
question of disobedience to another tribunal would operate to de-
1
prive the proceeding of half its efficiency.
Section 4, Rule 71 of the Rules of Court provides, in effect, that
a charge for indirect contempt must be filed with the court con-
temned. Although this provision is permissive in nature, in the
event of concurrent jurisdiction over cases of contempt of court, it
would be a good practice to acknowledge the preferential right to the
court against which the act of contempt was committed to try and
punish the guilty party.
Thus, the Court held that Public respondent committed no
error and did not act with abuse of discretion in ordering the trans-
'People v. Godoy, 243 SCRA 64, March 29, 1995.
668
Rule 71 CONTEMPT
Sec. 5
fer of the petition for indirect contempt to Branch 111 of the Re-
gional Trial Court of Pasay City, whose order was the subject of the
2
contempt suit.
The Charge of contempt must be filed before the court against
which the indirect contempt was committed. The court that granted
the preliminary injunction or TRO is vested with the power to deter-
mine and sufficiency and merit of contempt charger. Only the court
which issued the injunction can impose a sanction for contempt of
that injunction, and a court without subject matter jurisdiction can-
3
not transfer the case to another court.
b. Exception: Contempt May Be Tried by Other Courts

There are, however, several jurisprudentially and statutorily
recognized exceptions to the general rule, both under Philippine and
American jurisprudence, viz.:
1. Indirect contempt committed against an inferior court may
also be tried by the proper regional trial court, regardless of the
imposable penalty.
2. Indirect contempt against the Supreme Court may be
caused to be investigated by a prosecuting officer and the charge
may be filed in and tried by the regional trial court, or the case may
be referred to it for hearing and recommendation where the charge
involves questions of fact.
3. In People v. Alarcon, et al., supra, the Court ruled that "in
the interrelation of the different courts forming our integrated judi-
cial system, one court is not an agent or representative of another
and may not, for this reason, punish contempts in vindication of the
authority and decorum which are not its own. The appeal transfers
the proceedings to the appellate court, and this last court becomes
thereby charged with the authority to deal with contempts commit-
ted after the perfection of the appeal." The apparent reason is that
both the moral and legal effect of a punishment for contempt would
be missed if it were regarded as the resentment of personal affronts
offered to judges. Contempts are punished as offenses against the
2
S a n Luis v. CA, 365 SCRA 279, September 13, 2001.
3
Igot v. Court of Appeals, 436 SCRA 668, August 12, 2004.
669
VOL. Ill
administration of justice, and the offense of violating a judicial order

is punishable by the court which is charged with its enforcement,
regardless of the court which may have made the order. However,
the rule presupposes a complete transfer of jurisdiction to the appel-
late court, and there is authority that where the contempt does not
relate to the subject matter of the appeal, jurisdiction to punish
remains in the trial court.
4. A court may punish contempts committed against a court
or judge constituting one of its parts or agencies, as in the case of a
court composed of several coordinate branches or divisions.
5. The biggest factor accounting for the exceptions is where
the singular jurisdiction of a given matter has been transferred from
the contemned court to another court. One of the most common
reasons for a transfer of jurisdiction among courts is improper venue.
The cases involving venue deal primarily with the question whether
a change of venue is available after a contempt proceeding has been
begun. While generally a change of venue is not available in a con-
tempt proceeding, some jurisdictions allow such a change in proper
circumstances.
6. A new court wholly replacing a prior court has jurisdic-
tion to punish for violations of orders entered by its predecessor,
although where the successor court is created by a statute which
does not extinguish jurisdiction in the predecessor, an affirmative
transfer of jurisdiction before the contempt occurs is necessary to
empower the successor court to act.
7. Transfers of jurisdiction by appellate review have pro-
duced numerous instances where contempt against the trial court
has been punished in the appellate court, and vice versa. Some ap-
pellate courts have taken the view that a contempt committed after
an appeal is taken is particularly contemptuous of the appellate
court because of the tendency of such contempts to upset the status
quo or otherwise interfere with the jurisdiction of such court.
8. A judge may disqualify himself, or be disqualified, on a
contempt hearing or in the main case, which circumstance may
require a transfer of jurisdiction, but where a judge is disqualified
only in the main case, because of matters which do not disqualify
him in a contempt proceeding, the regular judge should sit in the
contempt proceeding. Likewise, where the regular judge is absent or
670
otherwise unavailable and an order is entered by another judge and

made returnable to the proper court, the regular judge may punish
for violations of orders so entered.
9. Where the same act is a contempt against two or more
courts, it is no bar to contempt proceedings in one of them that there
is also a contempt against the other.
10. While professional disciplinary proceedings have been re-
sorted to as a punishment for contempt, the more recent view is that
punishment is of secondary importance to the need to protect the
courts and the people from improper professional practice. To the
substantial extent t h a t disciplinary action remains a punishment,
disciplinary measures imposed by another court than the one con-
temned furnish an exception to the rule against punishing for con-
tempt of another court.
11. Some c o n t e m p t u o u s acts a r e also crimes, usually
misdemeanors, which are often punishable in other courts than those
against which the contemptuous act was done.
12. Finally, a conviction for contempt against another court
has been allowed to stand on the basis that the failure of the defend-
ant to make timely objection operated as a waiver of the right to be
4
tried before the court actually contemned.
b.l Loss of jurisdiction U p o n Perfection of Appeal

The trial court loses jurisdiction upon the perfection of an ap-
peal. The appeal transfers the proceedings to the appellate court,
and this last court becomes thereby charged with the authority to
deal with contempts committed after perfection of the appeal. The
trial court would have jurisdiction only in the event of an attempted
to block execution of the decision and that would be after the re-
mand of the case to the trial court. Until then the trial court would
5
have no jurisdiction to deal with the alleged contemptuous acts.
But where the judgment of the court embodying the court's
final injunction becomes final, contempt proceedings for disobedi-
4
People v. Godoy, supra.
P h i l i p p i n e Inter-Island Shipping Association of the Philippines v. Court of Ap-
peals, 266 SCRA 489, January 22, 1997.
671
VOL. Ill
ence thereof may be filed in the same court and not in a separate
6
proceedings.
c. Authority of Appellate Court
The rule, as now accepted is that where the entire case has
already been appealed, jurisdiction to punish for contempt rests
with the appellate court where the appeal completely transfers the
proceedings thereto or where there is a tendency to affect the status
7
quo or otherwise interfere with the jurisdiction of the appellate court.
d. Contumacious Language U s e d in Briefs

In the interrelation of the different courts forming our inte-
grated judicial system, one court is not an agent or representative of
another and may not, for this reason, punish contempts in vindica-
tion of the authority and decorum which are not its own. The appeal
transfers the proceedings to the appellate court, and this last court
becomes thereby charged with the authority to deal with contempts
8
committed after the perfection of the appeal.
Where the lawyer's alleged contumacious language contained
in a brief is directed against the appellate court, not the trial judge,
9
the judge is without jurisdiction to punish the lawyer for contempt.
It has, however, been held that the provision of the present
Section 4, Rule 71 of the Rules of Court as to where the charge may
be filed is permissive in nature and is merely declaratory of the
inherent power of courts to punish contumacious conduct. Said rules
do not extend to the determination of the jurisdiction of Philippine
courts. In appropriate cases, therefore, the Supreme Court may, in
the interest of expedient justice, impose sanctions on contemners of
10
the lower courts.
P h i l i p p i n e Inter-Island Shipping Association of the Philippines v. Court of Ap-

peals, supra.
7
People v. Godoy, supra.
"People v. Alarcon, et al., 69 Phil. 265.
9
Evangelista v. Sepulveda, 121 SCRA 684.
10
Cagayan Valley Ent. v. The Hon. Court of Appeals, 179 SCRA 218, Nov. 11,
672
Rule 71 CONTEMPT
Sees. 6-7
SEC. 6. Hearing; release on bail. If the hearing is not

ordered to be h a d forthwith, t h e respondent may be released
from custody u p o n filing a bond, in an amount fixed by the
court, for his a p p e a r a n c e at t h e h e a r i n g of the charge. On
t h e day set therefor, t h e court shall proceed to investigate
t h e charge a n d consider s u c h comment, testimony or defense
as the r e s p o n d e n t m a y m a k e or offer. (5a)
COMMENT:
1. Source of Rule
No substantial change.
A. Compelling Accused to Appear in Court only for Good Rea-
sons
The power of the court to compel the personal appearance of
one charged with contempt, under the last paragraph of Section 3,
Rule 65 of the old Rules of Court, providing, "x x x nothing x x x shall
be construed as to prevent the court from issuing process to bring
the accused party into court, or from holding him in custody pending
such proceedings," can only be taken if good reasons exist justifying
1
it."
Thus, there is no sufficient reason to justify the petitioner-
appellee's appearance where he has already tendered an explana-
tion to the charge of contempt. If the explanation be not satisfactory,
the proper course is to proceed with the contempt proceedings in
accordance with the Rules of Court. And if the return is, as claimed,
insolent or libelous, proper criminal or administrative action may
2
also be taken against him, in the regular course of law.
SEC. 7. Punishment for indirect contempt. - If the re-

spondent is adjudged guilty of indirect contempt committed
against a Regional Trial Court or a court of equivalent or
^ a k e w e l l v. Lloren, 12 SCRA 691.

2
Bakewell v. Lloren, Supra.
673
VOL. Ill
higher rank, he may be punished by a fine of not exceeding

thirty thousand (P30,000) pesos or imprisonment not exceed-
ing six (6) months, or both. If he is adjudged guilty of con-
tempt committed against a lower court, he m a y be p u n i s h e d
by a fine not exceeding five thousand (P5,000) p e s o s or im-
prisonment not exceeding one (1) month, or both. If the con-
tempt consists in the violation of a writ of injunction, tempo-
rary restraining order or status quo order, he m a y also be
ordered to make complete restitution to the party injured by
such violation of the property involved or s u c h amount as
may be alleged and proved.
The writ of e x e c u t i o n as in ordinary civil action shall
issue for the enforcement of a j u d g m e n t i m p o s i n g a fine,
unless the court otherwise provides. (6a)
COMMENT:
1. Source of Rule
This is based on Sec. 6 of the former rule with the amendment
1
increasing the amount of the fine.
2. Change in Rule
In cases of violation of writ of injunction or restraining order,
the rule now provides t h a t complete restitution may be ordered for
the return of the property involved or the payment of the amount
alleged and proved.
Where the judgment imposes a fine, a writ of execution shall
issue for its enforcement, unless the court provides otherwise.
(Feria)
3. Notes and Cases
Rule 71 under Section 7

Supreme Court Administrative Circular No. 22-95 which took
effect on 16 November 1995 amended Sections 1 and 6, Rule 71 of
Administrative Circular No. 22-95.
674
Rule 71 CONTEMPT
Sec. 7
2
the Rules of Court which provide the penalties for direct and indi-
rect contempt committed against superior and inferior courts Sec-
tion 6 of Rule 71 as amended reads-
SECTION 6. Punishment if found guilty. If the accused

is thereupon adjudged guilty of contempt committed against a
superior court or judge, he may be fined not exceeding thirty
thousand pesos or imprisoned not more than six (6) months, or
both; if adjudged guilty of contempt committed against an infe-
rior court or judge, he may be fined not exceeding five thousand
pesos or imprisoned not more than one (1) month, or both, and
if the contempt consists in the violation of an injunction,
he may also be ordered to make complete restitution to
the party injured by such violation. (Emphasis supplied)

the act of making good or giving equivalent for any loss, damage or
injury; and indemnification BLACK'S LAW DICTIONARY (Fifth
Edition). Petitioners are not excused from complying with the writ
of injunction on the ground a fire destroyed the machines, consider-
ing that the fire occured years after the court had ordered petition-
ers to return the machines.
Where there is nothing more to return in this case because of
the destruction of the sewing machines, the officers must be held
personally liable for the restitution of the money equivalent of the
lost sewing machines. . . The restitution of the value of the sewing
machines is not as a declaration of ownership in but pursuant to
Supreme Court Administrative Circular No. 22-95. . . The Court
affirmed the complete restitution of the value of the sewing ma-
chines consistent with the remedial and preservative principles of
citations for contempt, and as demanded by the respect due the
3
orders, writs and processes of the courts of justice.
*These amendments have been incorporated in the 1997 Rules of Civil Proce-
d U r e ;
'Rosario Textile Mills, Inc. v. Court of Appeals, 409 SCRA 515, August 25, 2003.
675
VOL. Ill
Penalty for refusal to comply or violation of injunction

An Injunction duly issued must be obeyed, however, erroneous,
the action of the court may be until a higher court over rules such
4
action.
Under Section 1, Rule 71. If the contempt consists in the
violation of a writ of injunction, temporary restraining order or sta-
tus quo order, he may also be ordered to make complete restitution
to the party injured by such violation of the property involved or
such amount as may be alleged and proved.
Supreme Court Administrative Circular No. 22-95 which
took effect on 16 November 1995 amended Sections 1 and 6
(now section 7), Rule 71 of the Rules of Court which provide the
penalties for direct and indirect contempt committed against
superior and inferior courts.

the "act of making good or giving equivalent for any loss, damage or
injury; and indemnification Petitioners are not excused from com-
plying with the writ of injunction on the ground a fire destroyed the
machines, considering that the fire occured years after the court had
ordered petitioners to return the machines. Where there is nothing
more to return in this case because of the destruction of the sewing
machines. The officers must be held personally liable for the restitu-
tion of the money equivalent of the lost sewing machines. The resti-
tution of the value of the sewing machines is not as a declaration of
ownership in but pursuant to Supreme Court Administrative Circu-
lar No. 22-95.
The Court affirmed the complete restitution of the value of the

sewing machines to RMC by petitioners consistent with the reme-
dial and preservative principles of citations for contempt, and as
4
Rosario Textile Mills, Inc. v. Court of Appeals, 409 SCRA 515, 52, August 25,
2003, citing Cagayan Valley Enterprises v. Court of Appeals, 179 SCRA 2 1 8 , 8 Novem-
ber 1989.
676
demanded by the respect due the orders, writs and processes of the
5
courts of justice.
A. POWER OF CONTEMPT TO BE USED SPARINGLY

Power to Punish for contempt to be exercised in preservative not
vindictive principle; what constitutes disobedience
The power to punish for contempt should be exercised on the
preservative and not on the vindictive principle, on the corrective
6
and not on the retaliatory idea of punishment.
The principle was reiterated in Rivera v. Florendo, where the
Supreme Court held:
"There is no question t h a t disobedience or resistance to a law-
ful writ, process, order, judgment or command of a court, or injunc-
tion granted by a court or judge, more particularly in this case, the
Supreme Court, constitutes Indirect Contempt punishable under
7
Rule 71 of the Rules of Court."
"It has been held t h a t contempt of court is a defiance of the
authority, justice or dignity of the court, such conduct as tends to
bring the authority and administration of the law into disrespect of
to interfere with or prejudice parties litigant or their witnesses dur-
ing litigation. It is defined as a disobedience to the court by setting
up an opposition to its authority, justice and dignity. It signifies not
only a willful disregard or disobedience to the court's order but such
conduct as tends to bring the authority of the court and the adminis-
tration of law into disrepute or in some manner to impede the due
8
administration of justice."
However, it is also well-settled that "the power to punish for
contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke
5
Supra.
&
See Repeque v. Aquilizan, 130 SCRA 258; Lipata v. Tutaan, 124 SCRA 880,
citing Gamboa v. Teodoro, 91 Phil. 270; and People v. Alarcon, 69 Phil. 265; Yangson v.
Salandanan, 68 SCRA 43; Balasabas v. Aquilizan, 106 SCRA 502; and Sulit v. Tiangco,
115 SCRA 207,211-212; Pacuribot v. Judge Lim, A.M. No. RTJ-97-1382, July 17,1997,
275 SCRA 543.
7
Rule 71, Section 3(b) and Section 6.
"Halili v. Court of Industrial Relations, 136 SCRA 112, April 30, 1985.
677
VOL. Ill
its inherent power in order to retain the respecc without which the
9
administration of justice must falter or fail." "Only in cases of clear
and contumacious refusal to obey should the power be exercised. A
bona fide misunderstanding of the terms of the order or of the proce-
dural rules should not immediately cause the institution of con-
tempt proceedings." Such power being drastic and extraordinary in
its nature x x x should not be resorted to x x x unless necessary in
10
the interest of justice."
Although private respondent did not immediately comply with
the writ of Injunction issued by the Supreme Court, it appears rea-
sonable on her part to request that she be allowed to confer with her
lawyer first before she makes any move of her own. It is likewise
reasonable for counsel for private respondent to request that he be
11
given time to file a motion for clarification with the Supreme Court.
B. DOUBTS RESOLVED IN FAVOR OF RESPONDENT

12
Contempt partakes of the nature of a criminal offense. Doubts
must always be resolved in favor of the person charged with con-
13
tempt. The presence or absence of contumacious intent in some
14
instances is determinative of contempt charges. Contempt of Court
15
presupposes contumacious and arrogant defiance of the Court. A
person cannot be punished for contempt in doing a thing t h a t has
not been prohibited or in omitting an act the performance of which
16
has not been required.
Contempt of court has been distinctly described as an offense
against the State and not against the judge personally. A judge must
always remember that the power of the court to punish for contempt
should be exercised for purposes that are not personal, because t h a t
9
Villavicencio v. Lukban, 39 Phil. 778 (1919); Gamboa v. Teodoro, et al., 91 Phil.
270 (1952); Sulit v. Tiangco, 115 SCRA 207 (1982); Lipata v. Tutaan, 124 SCRA 880
(1983).
10
Gamboa v. Teodoro, et al., Supra.
"Rivera v. Florendo, 144 SCRA 643.
12
Concepcion v. Gonzales TV, 114 Phil. 1066; Villanueva v. Lim, 69 Phil. 654.
13
Concepcion v. Gonzales IV, Supra.
14
Manalad v. De Vega, 120 SCRA 749.
15
Yngson v. Sec. of Agriculture, 123 SCRA 4 4 1 , 449.
16
C M S Investment and Management Corporation v. IAC, 139 SCRA 75 (1985).
678
power is intended as a safeguard, not for judges as persons, but for

the functions they exercise.
Viewed vis-a-vis the foregoing circumscription of a court's power
to punish for contempt, it bears stressing that the court must exer-
cise the power of contempt judiciously and sparingly with utmost
self-restraint with the end in view of utilizing the same for correc-
tion and preservation of the dignity of the court, not for retaliation
17
or vindication.
The power to punish for contempt should be used sparingly, so
much so that only in cases of clear and contumacious refusal to obey
should the power be exercised. More importantly, the power for con-
tempt should be exercised on the preservative and not on the vindic-
tive principle, with the corrective rather than retaliatory idea of
18
punishment.
Judges should not be thin-skinned or sensitive as to feel per-
sonally hurt or affronted everytime a complaining lawyer momen-
tarily loses his "cool" and writes in or utters less than polite lan-
guage, more so when the lawyer is merely expressing an honest
opinion about them which may not altogether be flattering. After all,
what matters is t h a t a judge performs his duties in accordance with
the dictates of his conscience and the light that God has given him. A
judge should never allow himself to be moved by pride, prejudice,
19
passion or pettiness in the performance of his duties.
The power to punish for contempt is inherent in all courts. It is
indispensable to their right of self-preservation, to the execution of
their powers, and to the maintenance of their authority, and conse-
quently to the due administration of justice. It is an essential ele-
ment, or is possessed as part, of judicial authority vested by the
Constitution in the courts. Put a little differently, the power is an
"implied constitutional power." Being drastic and extraordinary in
its nature, it should not be resorted to unless necessary in the inter-
est of justice. Indeed, the contempt power could easily tempt a judge
17
Rodriquez v. Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA
519, supra, see also Sison v. C. Caoibes, Jr., 429 SCRA 258 (2004).
1B
Vide Pacuribot v. Judge Lim, A.M. No. RT J-97-1382, July 17,1997, 275 SCRA
543.
19
Baja v. Judge Macandog, 158 SCRA 391, 29 Feb. 1988.
679
VOL. Ill
to make its exercise nothing more than a camouflage for a wounded

pride, a burning prejudice, revenge, a misplaced passion, or selfish
20
motives.
The power, is not limitless. It must be used sparingly with
caution, restraint, judiciousness, deliberation, and due regard to the
provisions of the law and the constitutional rights of the individual.
It should be exercised on the preservative and not on the vindictive
principle. Being drastic and extraordinary in its nature, it should
21
not be resorted to unless necessary in the interest of justice. For, as
22
observed in People v. Estenzo.
There is a compelling and exigent need therefore for judges to
take utmost care lest prejudice, innate or covert hostility to person-
ality of counsel, or previous incidents lead them to characterize con-
duct susceptible of innocent explanation as "slights on the dignity of
the dividing line that should separate the prosecutor from the judge,
when both roles are merged in the same person. The infusion of
personal element may go unnoticed. Even if such were not the case,
objectively viewed, such an impression may be difficult to avoid by
23
laymen. That is a consideration that cannot be overlooked.
Indeed, the contempt power could easily tempt a judge to make
its exercise nothing n o r e than a camouflage for a wounded pride, a
24
burning prejudice, revenge, a misplaced passion, or selfish motives.
C. INABILITY TO OBEY ORDER A GOOD DEFENSE

An inability to obey an order is a good defense to a charge of
contempt, unless the person charged voluntarily and contumaciously
25
brought the disability upon himself.
20
Paredes-Garcia v. Court of Appeals, 261 SCRA 693, September 11, 1996.
21
Villavicencio v. Lukban, 39 Phil. 778 (1919); Oliveros v. Villaluz, 57 SCRA 163
(1974); People v. Maceda, 188 SCRA 532 (1990); De Guia v. Guerrero, 234 SCRA 625
(1994).
22
6 4 SCRA211,214 (1975); See also Fontelera v. Amores, supra, note 17; Paredes-
Garcia v. Court of Appeals, 261 SCRA 693, September 11, 1996.
23
Paredes-Garcia v. Court of Appeals, G.R. No. 120654, September 11, 1996,
supra.
24
Paredes-Garcia v. Court of Appeals, supra.
25
People v. Rivera, 91 Phil. 354.
680
D. THE DEFENSE OF GOOD FAITH

Landbank's acts of foreclosing and selling at public auction the
lots mortgaged by petitioner were not contumacious. Landbank in-
stituted the foreclosure proceedings upon an honest belief that peti-
tioner had defaulted in the payment of its obligation. Having acted
in good faith, the officers of the bank cannot be held in contempt of
court. However, in order not to render this decision moot and ineffec-
26
tual, the sale at public auction should be annulled.
E. SEPARATE ORDERS FOR DIRECT AND INDIRECT

CONTEMPT
Where a lawyer fails to obey a subpoena and likewise commit-
ted direct contempt for having disturbed the preliminary examina-
tion being conducted by the judge by repeatedly driving his jeep and
honking its horn in the vicinity of the court session hall for which
the lawyer was ordered arrested and confined in jail, the judge should
issue a separate order for such direct contempt, and another order
requiring the lawyer to show cause why he should not be punished
for disobedience to its process, to give the lawyer a chance to explain
27
his failure to appear as a witness.
SEC. 8. Imprisonment until order obeyed. When the

contempt consists in t h e refusal or omission to do an act
w h i c h is yet in t h e p o w e r of t h e respondent to perform, he
m a y be i m p r i s o n e d by order of the court concerned until he
performs it. (7a)
COMMENT:
1. Source of Rule
Taken from Section 7 of the Former Rule:
SEC. 7. Imprisonment until order obeyed. - When the con-
tempt consists in the omission to do an act which is yet in the power
26
Gateway Electronics Corporation v. Land Bank of the Philippines, 407
454, July 30, 2003.
"Gardones v. Delgado, 58 SCRA 58.
681
VOL. Ill
of the accused to perform, he may be imprisoned by order of a supe-

rior court until he performs it.
3. Notes and Cases

a. Reason for Imprisonment
1
In the case of Harden v. Director of Prisons, where the peti-
tioner was confined in prison for contempt of court, the Court, in
denying the petition and resolving the question of petitioner's in-
definite confinement, had the occasion to apply and clarify the afore-
quoted provision in the following tenor:
"The penalty complained of is neither cruel, unjust or exces-
sive. In ex parte Kenmler, 136 U.S. 436, the United States Court said
that punishments are cruel when they involve torture or a lingering
death, but the punishment of death is not cruel, within the meaning
of that word as used in the constitution, it implies there something
inhuman and barbarous, something more than the extinguishment
of life."
The punishment meted out to the petitioner is not excessive. It
is suitable and adapted to its objective; and it accords with Section 7,
Rule 64 (now Rule 71) of the Rules of Court which provides that
when the contempt consists in the omission to do an act which is yet
in the power of the accused to perform, he may be imprisoned by
order of a superior court until he performs it.
The proper penalty for contempt of court for refusal to comply
with order to return motor vehicle is imprisonment until the order is
2
obeyed.
b. Purely Remedial in Nature

It has been held that: "If the term of imprisonment in this case
is indefinite and might last through the natural life of the petitioner,
yet by the terms of the sentence the way is left open for him to avoid
serving any part of it by complying with orders of the court, and in
this manner put an end to his incarceration. In these circumstances,
*81 Phil. 741, Oct. 22, 1948.

2
Quinio v. Court of Appeals, 355 SCRA 522, July 12, 2000.
682
3
the judgment cannot be said to be excessive or unjust. As stated in a
4
more recent case, 'to order that one be imprisoned for an indefinite
period in a civil contempt is purely a remedial measure. Its purpose
is to coerce the contemnor to do an act within his or her power to
perform. He must have the means by which he may purge himself of
the contempt.'" The latter decision cites Staley v. South Jersey Re-
5
alty Co., in which the theory is expressed in this language:
In a "civil contempt" the proceeding is remedial, it is a step in
the case the object of which is to coerce one party for the benefit of
the other party to do or refrain from some act specified in the order
of the court. Hence if imprisonment be ordered, it is remedial in
purpose and coercive in character, and to that end must relate to
something to be done by the defendant by the doing of which he may
discharge himself. As quaintly expressed, "the imprisoned man" car-
ries the keys to his prison in his own pocket, (pp. 747-748).
Likewise, American courts had long enunciated these rulings:
"The commitment of one found in contempt of a court order
only until the contemnor shall has purged himself of such contempt
by complying with the order is a decisive characteristic of civil con-
6
tempt.
"Civil or quasi-criminal contempt is contemplated by a statute
providing that if any person refused to obey or perform any rule,
order, or judgment of court, such court shall have the power to fine
and imprison such person until the rule, or judgment shall be com-
1
plied with Evans v. Evans.
It is clear from the provision of Section 7, Rule 71 of the Re-
vised Rules of Court that the rationale behind the punishment of the
contemnor is for him to make complete restitution to the party in-
jured by the violation of an order. Thus, if the contumacious act
consists in the failure to perform an act or obligation which is yet in
the power of the contemnor to do, he may be imprisoned indefinitely
until full and complete compliance with our order or resolution.
3
Davis v. Murphy, 1947, 188 pp. 229-231.
4
D e Wees 1948, 210 S.W., 2d, 145-147.
5
8 3 N.J. Eq., 300, 90 A., 1042, 1043.
B
Maggio v. Zeitz, 333 US 56, 921, Ed. 476, 68 CTI 401.
7
1 9 3 Miss 468, 9 So. 2d. 641; 17 Am, Jur. 2d.; Halili v. CIR, 140 SCRA 87.
683
VOL. Ill
The essence of the imposition of an indefinite imprisonment on

the contemnor is the ultimate and total performance of an obligation
required by an order of a superior court. This is why contumacy
should be indivisible; it cannot be the subject of piece-meal compli-
ance; otherwise, the very reason for which it is imposed, which is the
complete compliance with an order, would be defeated. Court orders
and injunction would be easily defied or ignored by litigants if, every
time a contemnor partially satisfies the same, he should be released
from the contempt charge. This premature purging of contumacy
would not prevent the other party from filing another motion for
contempt and this would naturally result in endless litigations. Hence,
unless and until our courts show they mean business in exacting full
compliance with their orders the contempt of court might become a
futile exercise of judicial power. And eventually, litigants and their
8
counsel might lose respect for our courts.
Except where the fundamental power of the court to imprison
for contempt has been restricted by the statute, and subject to con-
stitutional prohibitions, where a contemnor fails or refuses to obey
an order of the court for the payment of money he may be impris-
9
oned to compel obedience to such order.
c. P o w e r to P u n i s h for c o n t e m p t to be e x e r c i s e d in
preservative not vindictive principle; w h a t c o n s t i t u t e s diso-
bedience
The power to punish for contempt should be exercised on the
preservative and not on the vindictive principle, on the corrective
10
and not on the retaliatory idea of punishment.
8
Halili v. Court of Industrial Relations, 140 SCRA 73.
9
Supra.Vergara v. Gedorro, 402 SCRA 520, April 30, 2003, holding that Section
8 applies only to a special judgment enforceable under Section 21 of Rule 39. It does
not apply to Sections 9 and 10 of Rule 39 (See also Lipata v. Tutaan, 209 Phil. 719
[1983], 124 SCRA 877). See, however, Montenegro v. Montenegro, G.R. No. 156829,
June 8, 2004, 431 SCRA 415: Where the penalty of imprisonment may be imposed for
failure to obey order for examination under Sections 36 and 38 of Rule 39 of the Rules
of Court.
10
See Repeque v. Aquilizan, 130 SCRA 258; Lipata v. Tutaan, 124 SCRA 880,
citing Gamboa v. Teodoro, 91 Phil. 270; and People v. Alarcon, 69 Phil. 265; Yangson v.
Salandanan, 68 SCRA 43; Balasabas v. Aquilizan, 106 SCRA 502; and Sulit v. Tiangco,
115 SCRA 207,211-212.
684
The principle was reiterated in Rivera v. Florendo where the

Supreme Court held:
"There is no question that disobedience or resistance to a law-
ful writ, process, order, judgment or command of a court, or injunc-
tion granted by a court or judge, more particularly in this case, the
Supreme Court, constitutes Indirect Contempt punishable under
Rule 71 of the Rules of Court (Rule 71, Section 3[b] and Section 6)."
"It has been held that contempt of court is a defiance of the
authority, justice or dignity of the court, such conduct as tends to
bring the authority and administration of the law into disrespect of
to interfere with or prejudice parties litigant or their witnesses dur-
ing litigation. It is defined as a disobedience to the court by setting
up an opposition to its authority, justice and dignity. It signifies not
only a willful disregard or disobedience to the court's order but such
conduct as tends to bring the authority of the court and the adminis-
tration of law into disrepute or in some manner to impede the due
11
administration of justice."
However, it is also well-settled that "the power to punish for
contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke
its inherent power in order to retain the respect without which the
12
administration of justice must falter or fail." "Only in cases of clear
and contumacious refusal to obey should the power be exercised. A
bona fide misunderstanding of the terms of the order or of the proce-
dural rules should not immediately cause the institution of con-
tempt proceedings." Such power being drastic and extraordinary in
its nature x x x should not be resorted to x x x unless necessary in
13
the interest of justice."
Although private respondent did not immediately comply with
the writ of Injunction issued by the Supreme Court, it appears rea-
sonable on her part to request that she be allowed to confer with her
"Halili v. Court of Industrial Relations, 136 SCRA 112, April 30, 1985.
12
Villavicencio v. Lukban, 39 Phil. 778 (1919); Gamboa v. Teodoro, et al., 9 1 1
270 (1952); Sulit v. Tiangco, 115 SCRA 207 (1982); Lipata v. Tutaan, 124 SCRA
(1983). See also Vergara v. Gedorio, 402 SCRA 502, April 30, 2003, and cases c
therein.
13
Gamboa v. Teodoro, et al., supra.
685
VOL. Ill
lawyer first before she makes any move of her own. It is likewise
reasonable for counsel for private respondent to request that he be
14
given time to file a motion for clarification with the Supreme Court.
SEC. 9. Proceeding when party released on bail fails to

answer. When a respondent released on bail fails to appear
on the day fixed for the hearing, the court m a y issue another
order of arrest or may order the b o n d for h i s appearance to
be forfeited and confiscated, or both; and, if the b o n d be
proceeded against, the m e a s u r e of d a m a g e s shall be t h e ex-
tent of the loss or injury s u s t a i n e d by t h e aggrieved party by
reason of the misconduct for w h i c h t h e c o n t e m p t charge w a s
prosecuted, w i t h t h e costs of t h e p r o c e e d i n g s , a n d s u c h re-
covery shall be for the benefit of t h e party injured. If there is
no aggrieved party, the b o n d shall be liable a n d d i s p o s e d of
as in criminal cases. (8a)
COMMENT:
1. Source of Rule
SEC. 8. Proceeding when party released on bail fails to answer.
When an accused released on bail fails to appear upon the day
fixed for the hearing, the court may issue another order of arrest or
may order the bond for his appearance to be prosecuted, or both; and,
if the bond be prosecuted, the measure of damages shall be the extent
of the loss or injury sustained by the aggrieved party by reason of the
misconduct for which the contempt was prosecuted, and the costs of
the proceedings, and such recovery shall be for the benefit of the party
injured. But if there is no aggrieved party, the bond shall be liable as
in criminal cases.
2. Change in Rule
To be "forfeited and confiscated," replaced the phrase "to be
prosecuted."
"Rivera v. Florendo, 144 SCRA 643.
686
Rule 71 CONTEMPT Sees. 10-11
SEC. 10. Court may release respondent. The court

w h i c h i s s u e d t h e order imprisoning a person for contempt
m a y discharge h i m from imprisonment w h e n it appears that
public interest will n o t be prejudiced by his release. (9a)
COMMENT:
1. Source of Rule
SEC. 9. Court may release accused. The court or judge who
made the order imprisoning a person for contempt may discharge
him from imprisonment when it appears that public interest will not
suffer thereby.
2. No substantial c h a n g e .
SEC. 11. Review of judgment or final order; bond for stay.

The j u d g m e n t or final order of a court in a case of indirect
c o n t e m p t m a y be a p p e a l e d to t h e proper court as in criminal
cases. But e x e c u t i o n of t h e j u d g m e n t or final order shall not
be s u s p e n d e d until a b o n d is filed by t h e person adjudged in
contempt, in an a m o u n t fixed by t h e court from w h i c h the
appeal is taken, c o n d i t i o n e d that if the appeal be decided
against h i m he will abide by a n d perform the judgment or
final order. (10a)
COMMENT:
1. Source of Rule
SEC. 10. Review of judgment or order by Court of Appeals or
Supreme Court; bond for stay. The judgment or order of a Court of
First Instance made in a case of contempt punished after written
charge and hearing may be reviewed by the Court of Appeals or the
Supreme Court, but execution of the judgment or order shall not be
suspended until a bond is filed by the person in contempt, in an
amount fixed by the Court of First Instance, conditioned that if the
appeal be decided against him he will abide by and perform the
judgment or order. The appeal may be taken as in criminal cases.
687
VOL. Ill
3. Notes and Cases

Justice Feria is of the view that whether the contempt is civil
or criminal, it is still a criminal proceeding in which acquittal is a
1
bar to a second prosecution. Hence, appeal is proper only if the
respondent is adjudged guilty of indirect contempt.
a. It has, however, been held in a case that appeal lies
2
from a verdict of acquittal in civil contempt, reiterated the rule
that an appeal from a verdict of acquittal in contempt proceedings
where the contempt is civil in nature does not constitute double
jeopardy. A failure to do something ordered by the court for the
benefit of a party constitutes civil contempt. The contempt involved
in this case was held as civil and constructive in nature, it having
arisen from the act of violating the writ of preliminary injunction of
the lower court which clearly defined the forbidden act.
b. When double jeopardy e x i s t s

A contempt charge partakes of the nature of a criminal action
even where the action complained of is an incident of a civil action.
An appeal does not lie from an order dismissing a charge of con-
tempt of court. Thus, the reconsideration by the trial court of its
order denying the motion for contempt had the effect of placing the
respondents in double jeopardy, considering t h a t the denial of the
motion for contempt on grounds of failure of movants to appear and
3
prosecute such motion is equivalent to a judgment of acquittal.
Civil contempt (which is failure to do something as ordered by
the Court for the benefit of a party) cannot be a basis for second
jeopardy. But criminal contempt (where the purpose is to vindicate
the authority of the court and protect its outraged dignity) could be a
4
different matter.
S a n t i a g o v. Anunciacion, 184 SCRA 118.

2
C i t i n g Converse Corporation v. Jacinto, Rubber Plastics Co., Inc. (Supra.); See
also C a g a y a n Valley Enterprises v. Court of Appeals, 179 SCRA 218, Nov. 8, 1989.
3
Davao Timber Corporation v. Syhunliong, G.R. No. 80683, 9 May 1988, Third
Division, Minute Resolution.
"Converse Rubber Corporation v. Jacinto, Rubber, 97 SCRA 158.
688
An acquittal in contempt proceedings being in nature penal

"its denial after trial amounts to a virtual acquittal from which an
5
appeal would not lie."
c. Multiple Appeal Allowed

An Appeal from a judgment for indirect contempt may be pros-
ecuted without waiting for the termination of the principal case, just
6
as in contempt committed in special proceedings.
4. Appeal lies from a verdict of acquittal in civil con-

tempt
Citing Converse Corporation v. Jacinto Rubber Plastics Co.,
7
Inc., the Supreme Court in Cagayan Valley Enterprises v. Court of
8
Appeals, reiterated the rule that an appeal from a verdict of acquit-
tal in contempt proceedings where the contempt is civil in nature
does not constitute double jeopardy. A failure to do something or-
dered by the court for the benefit of a party constitutes civil con-
tempt. The contempt involved in this case was held as civil and
constructive in nature, it having arisen from the act of violating the
writ of preliminary injunction of the lower court which clearly de-
fined the forbidden act.
5. Availability of libel as additional remedy not a bar

to contempt
The court declared that there may still be a contempt of court
even after a case has been decided and terminated. In such case, the
offender may be cited for contempt for uttering libelous remarks
against the court or the judge. The availability, however, of the power
to punish for contempt does not and will not prevent a prosecution
for libel, either before, during, or after the institution of contempt
proceedings. In other words, the fact that certain contemptuous con-
duct likewise constitutes an indictable libel against the judge of the
court contemned does not necessarily require him to bring a libel
action, rather than relying on contempt proceedings.
^ h e Insurance Commissioner v. Globe Assurance, 111 SCRA 202.

6
Calderon v. McMicking, 10 Phil. 2621; 3 MORAN 3 7 3 , 1 9 8 0 Ed.
1
Supra.
8
1 7 9 SCRA 218, Nov. 8, 1989.
689
VOL. Ill
The fact that an act constituting a contempt is also criminal

and punishable by indictment or other method of criminal prosecu-
tion does not prevent the outraged court from punishing the con-
tempt. This principle stems from the fundamental doctrine that an
act may be punished as a contempt even though it has been pun-
ished as a criminal offense. The defense of having once been in
jeopardy, based on a conviction for the criminal offense, would not lie
in bar of the contempt proceedings, on the proposition that a con-
tempt may be an offense against the dignity of a court and, at the
same time, an offense against the peace and dignity of the people of
the State. But more importantly, adherence to the American doc-
trine by insisting that a judge should instead file an action for libel
will definitely give rise to an absurd situation and may even cause
more harm than good.
Drawing also from American jurisprudence, to compel the judge
to descend from the plane of his judicial office to the level of the
contemnor, pass over the matter of contempt, and instead attack
him by a civil action to satisfy the judge in damages for a libel, would
be still greater humiliation of a court. That conduct would be per-
sonal; the court is impersonal. In our jurisdiction, the judicial status
is fixed to such a point that our courts and the judges thereof should
be protected from the improper consequences of their discharge of
duties so much so that judicial officers have always been shielded,
on the highest considerations of the public good, from being called
for questioning in civil actions for things done in their judicial capac-
ity
Whenever we subject the established courts of the land to the
degradation of private prosecution, we subdue their independence,
and destroy their authority. Instead of being venerable before the
public, they become contemptible; and we thereby embolden the
licentious to trample upon everything sacred in society, and to over-
turn those institutions which have hitherto been deemed the best
guardians of civil liberty.
Hence, the suggestion that judges who are unjustly attacked
have a remedy in an action for libel, has been assailed as being
without rational basis in principle. In the first place, the outrage is
not directed to the judge as a private individual but to the judge as
such or to the court as an organ of the administration of justice. In
the second place, public interests will gravely suffer where the judge,
690
as such, will, from time to time, be pulled down and disrobed of his
judicial authority to face his assailant on equal grounds and pros-
ecute cases in his behalf as a private individual. The same reasons of
public policy which exempt a judge from civil liability in the exercise
of his judicial functions, most fundamental of which is the policy to
confine his time exclusively to the discharge of his public duties,
9
applies here with equal, if not superior, force.
6. Contempt a n d Disbarment D i s t i n g u i s h e d
Distinct P u r p o s e s of B o t h P r o c e e d i n g s
10
Justice Regalado in People v. Godoy. Elucidated: The basic
rule here is t h a t the power to punish for contempt and the power to
disbar are separate and distinct, and that the exercise of one does no
exclude t h e exercise of t h e other. A contempt proceeding for
misbehavior in court is designed to vindicate the authority of the
court; on the other hand, the object of a disciplinary proceeding is to
deal with the fitness of the court's officer to continue in that office, to
preserve and protect the court and the public from the official minis-
trations of persons unfit or unworthy to hold such office. The princi-
pal purpose of the exercise of the power to cite for contempt is to
safeguard the functions of the court and should thus be used spar-
ingly on a preservative and not on the vindictive principle. The
principal purpose of he exercise of disciplinary authority by the
Supreme Court is to assure respect for orders of such court by attor-
neys who, as much as judges, are responsible for the orderly admin-
istration of justice.
7. Contempt Not Res J u d i c a t a to Disbarment

Moreover, it has been held that the imposition of the fine as a
penalty in a contempt proceeding is not considered res judicata to a
subsequent charge for unprofessional conduct. In the same manner,
an attorney's conviction for contempt was not collaterally estopped
by reason of a subsequent disbarment proceeding in which the court
found in his favor on essentially the same facts leading to conviction.
9
People v. Godoy, 243 SCRA 64, March 29, 1995.
10
2 4 3 SCRA 64, March 29, 1995.
691
VOL. Ill
It has likewise been the rule that a notice to a lawyer to show cause
why he should not be punished for contempt cannot be considered as
a notice to show cause why he should not be suspended from the
practice of law, considering that they have distinct objects and for
each of them a different procedure is established. Contempt of court
is governed by the procedure laid down under Rule 71 of the Rules of
Court, whereas disciplinary actions in the practice of law are gov-
11
erned by Rules 138 and 139 thereof.
8. Both P o w e r s are Inherent in Supreme Court

Although apparently different in legal bases, the authority to
punish for contempt and to discipline lawyers are both inherent in
the Supreme Court and are equally incidents of the court's basic
power to oversee the proper administration of justice and the or-
derly discharge of judicial functions. As was succinctly expounded in
Zaldivar v. Sandiganbayan, et al.:
There are, in other words, two (2) related powers which come
into play in cases like that before us here: the Court's inherent
power to discipline attorneys and the contempt power. The discipli-
nary authority of the Court over members of the Bar is broader t h a n
the power to punish for contempt. Contempt of court may be com-
mitted both by lawyers and non-lawyers, both in and out of court.
Frequently, where the contemnor is a lawyer, the contumacious con-
duct also constitutes professional misconduct which calls into play
the disciplinary authority of the Supreme Court. Where the respond-
ent is a lawyer, however, the Supreme Court's disciplinary authority
over lawyers may come into play whether or not the misconduct
with which the respondent is charged also constitutes contempt of
court. The power to punish for contempt of court does no exhaust the
scope of disciplinary authority of the Court over lawyers. The disci-
plinary authority of the Court over members of the Bar is but corol-
lary to the Court's exclusive power of admission to the Bar. A lawyer
is not merely a professional but also an officer of the court and as
such, he is called upon to share in the task and responsibility of
dispensing justice and resolving disputes in society. Any act on his
part which visibly tends to obstruct, pervert, or impede and degrade
n
Supra.
692
the administration of justice constitutes both professional mis-

conduct calling for the exercise of disciplinary action against him,
and contumacious conduct warranting application of the contempt
12
power.
SEC. 12. Contempt against quasi-judicial entities. Un-

less o t h e r w i s e provided by law, this Rule shall apply to con-
tempt c o m m i t t e d against persons, entities, bodies or agen-
cies e x e r c i s i n g quasi-judicial functions, or shall h a v e supple-
tory effect to s u c h r u l e s as t h e y m a y h a v e adopted pursuant
to authority g r a n t e d to t h e m by l a w to p u n i s h for contempt.
The Regional Trial Court of t h e place w h e r e i n t h e contempt
h a s b e e n committed shall h a v e jurisdiction over such charges
as m a y be filed therefor, (n)
COMMENT:
This is a N e w P r o v i s i o n w h i c h n o w P r o v i d e s That:
Unless otherwise provided by law, this Rule shall apply to
contempt committed against persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall have suppletory effect to
such rules as they may have adopted pursuant to authority granted
to them by law to punish for contempt. The Regional Trial Court of
the place wherein the contempt has been committed shall have ju-
risdiction over such charges as may be filed therefor.
Administrative Circular No. 22-95

Subject: Amendment of Sections 1 and 6, Rules 71 of the Rules
of Court
Rule 71 of the present Rules of Court provides the penalties for
direct and indirect contempt committed against superior and infe-
rior courts; to wit:
(1) In direct contempt, a fine not exceeding P200.00 or
imprisonment not exceeding 10 days, or both, if it be a superior
'Zaldivar v. Sandiganbayan, supra.
693
12 REMEDIAL LAW Rule 71
VOL. Ill
court, and a fine not exceeding P10.00 or imprisonment not

exceeding 1 day, or both, if it be an inferior court (Section 1);
and
(2) In indirect contempt, a fine not exceeding PI,000.00
or imprisonment of not more than 6 months, or both, if against
a superior court, and a fine not exceeding PI,000.00 or impris-
onment of not more than 1 month, or both, if against an infe-
rior court (Section 6).
The Court takes judicial notice that these were the same
penalties for direct and indirect contempt which were imposed
by Sections 1 and 6, Rule 64 of the old Rules of Court which
took effect on July 1, 1940, or more than 55 years ago.
The court also takes cognizance of the fact that the amount
of the fine, whether imposed as a complementary or an alterna-
tive penalty, was intended to be the financial equivalent of the
term of imprisonment for the offense, from the of taking into
account the nature of the offensive acts and the courts against
which they were committed.
In view of the present value of our currency under either
the prevailing international rates of exchange or the consumer
price index which, however, are subject to variant factors, and
considering t h a t the minimum daily wage h a s often been
adopted as the basis for determining the amount of the fine in
our penal laws, the aforestated provisions of Rule 71 have to be
amended to keep the same abreast with monetary changes by
increasing the amount of the imposable fine, with the average
national minimum wage as the approximate basis therefor.
Accordingly, the Court Resolved to AMEND the provi-
sions of Sections 1 and 6, Rule 71 of the Rules of Court to read
as follows:
"SECTION 1. Direct contempt punished summarily. A
person guilty of misbehavior in the presence of or so near a
court or judge as to obstruct or interrupt the proceedings before
the same, including disrespect toward the court or judge, offen-
sive personalities toward others, or refusal to be sworn or to
answer as witness, or to subscribe an affidavit or deposition
when lawfully required to do so, may be summarily adjudged
694
in contempt by such court or judge and punished by a fine not

exceeding two thousand pesos or imprisonment not exceeding
ten (10) days, or both, by a fine not exceeding two hundred
pesos or imprisonment not exceeding one (1) day, or both, if it
be an inferior court."
"SECTION 6. Punishment if found guilty. If the ac-
cused is thereupon adjudged guilty of contempt committed
against a superior court or judge, he may be fined not exceed-
ing thirty thousand pesos or imprisoned not more than six (6)
months, or both, if adjudged guilty of contempt committed
against an inferior court or judge, he may be fined not exceed-
ing five thousand pesos or imprisoned not more than one (1)
month, or both, and if the contempt consists in the violation of
an injunction, he may also be ordered to make complete resti-
tution to the party injured by such violation."
This Administrative Circular No. 22-95 shall be published
in two (2) newspapers of general circulation and shall take
effect on November 16, 1995.
October 11, 1995.
ANDRES R. NARVASA
Chief Justice
695
APPENDIX A
SPECIAL LAWS LIMITING FILING
OF EJECTMENT CASES
There are special laws which limit the right of an owner or

lessor of real property from filing ejectment cases.
I
PRESIDENTIAL DECREE NO. 1517
PROCLAIMING URBAN LAND REFORM IN THE

PHILIPPINES AND PROVIDING FOR THE IMPLEMENTING
MACHINERY THEREOF
WHEREAS, it is a declared objective of t h e N e w Society

to effect social, e c o n o m i c a n d political reforms a t t u n e d to
the establishment of a s e c u r e national c o m m u n i t y a n d to an
improved quality of life for all citizens a n d for all o t h e r s w h o
may sojourn our shores;
WHEREAS, the quality of h u m a n life in our t i m e s is
inescapably d e t e r m i n e d b y t h e r e l a t i o n s h i p a m o n g popu-
lation, resources, the environment, a n d intelligent policies;
WHEREAS, h u m a n s e t t l e m e n t s is an integrative concept
embracing the interdependence of man's environment, h u m a n
shelters and structures, and t h e d e s i g n a n d organization of
human communities consistent with a nation framework plan,
all for the people's security a n d well-being;
WHEREAS, land is t h e ultimate platform of all man's
activities, and the crucial factor in d e t e r m i n i n g t h e s h a p e of
human settlements;
WHEREAS, the basic l a w of the land explicitly provides
for the regulation of the acquisition, o w n e r s h i p , use, enjoy-
ment and disposition of private property and for the equitable
696
APPENDIX A
SPECIAL LAWS LIMITING FILING OF EJECTMENT CASES
diffusion of property o w n e r s h i p and profits which includes

land and land resources;
WHEREAS, the traditional concept of landowner ship has
aggravated the problem arising from urbanization such as
the proliferation of blighted areas and the worsening of the
plight of the urban poor and has s p a w n e d valid and legitimate
g r i e v a n c e s in urban c e n t e r s giving rise to social tension and
violent conflicts;
WHEREAS, a social reform objection of the N e w Society
is to r e n e w b l i g h t e d areas, improve t h e conditions of the
urban poor a n d resolve a n d redress legitimate grievances
arising therefrom, while at the same time providing incentives
to progressive landowners and developers who wish to
d e v e l o p their lands in a c c o r d a n c e w i t h government plans
a n d programs r e s p o n s i v e to c o m m u n i t y welfare;
NOW, THEREFORE, in t h e light of the above premises,
I, FERDINAND E. MARCOS, P r e s i d e n t of the Philippines, by
virtue of t h e p o w e r s v e s t e d in me by the Constitution, do
hereby order, d e c r e e a n d m a k e as part of the l a w of the land
that:
Section 1. Title. This Act shall be k n o w n as the Urban
Land Reform Act.
Sec. 2. Declaration of Policy. It is hereby declared to be
the policy of the State: a) to liberate our h u m a n communities
from blight, congestion, a n d hazard, and to promote their
d e v e l o p m e n t a n d m o d e r n i z a t i o n ; b ) t o b r i n g about the
optimum use of land as a national resource for public welfare
r a t h e r t h a n as a c o m m o d i t y of t r a d e s u b j e c t to p r i c e
speculation a n d indiscriminate use; c) to provide equitable
access and opportunity to the use and enjoyment of the fruits
of the land; d) to acquire such lands as are necessary to
prevent speculative buying of land for public welfare; and e)
to maintain and support a vigorous private enterprise system
r e s p o n s i v e t o c o m m u n i t y r e q u i r e m e n t s i n the use and
development of urban lands.
Sec. 3. Definitions. As used in this Decree, the following
words and phrases shall have the following meanings or
definitions:
697
REMEDIAL LAW
VOL. Ill
(a) D e v e l o p m e n t R i g h t s , a l s o k n o w n a s "new u s e
rights," refers to the right to use and/or develop land and
improvements thereon including putting them to more
intensive use, conversion to a more profitable use, increasing
density and the like.
(b) Land Assembly refers to t h e a c q u i s i t i o n of lots
varying ownership through, a m o n g others, expropriation or
n e g o t i a t e d p u r c h a s e , for t h e p u r p o s e o f p l a n n i n g a n d
development unrestricted by individual property boundaries.
(c) Land B a n k i n g refers to t h e acquisition of land in
advance of actual n e e d for t h e purpose of acquiring lands at
existing use value a n d disposing of t h e m in a m a n n e r w h i c h
would influence land price formation a n d promote p l a n n e d
development.
(d) Land Exchange refers to t h e p r o c e s s of bartering
land for another p i e c e of l a n d and/or shares of stock of equal
value in a government or quasi-government corporation.
(e) Joint Ventures refers to t h e commitment, for more
than a limited duration, of funds, l a n d resources, facilities
and services by t w o or m o r e legally separate interests, to an
enterprise for their mutual benefit.
(f) Tenant refers to t h e rightful o c c u p a n t of land and
its structures, but d o e s not i n c l u d e t h o s e w h o s e p r e s e n c e on
the l a n d i s m e r e l y t o l e r a t e d a n d w i t h o u t t h e b e n e f i t o f
contract, those w h o e n t e r t h e l a n d by force or deceit, or
those w h o s e p o s s e s s i o n is u n d e r litigation.
(g) Urban lands refer to l a n d s w h i c h conform to any of
the following criteria:
1. In their entirety, all cities a n d m u n i c i p a l i t i e s
w h i c h h a v e t h e p o p u l a t i o n d e n s i t y of at l e a s t 1,000
p e r s o n s per square k i l o m e t e r a n d w h e r e at least 50
percent of the economically active population are
e n g a g e d in non-agricultural activities.
2. All barangays comprising the former poblacion
or barangays including a part of t h e former poblacion of
cities and municipalities which have a population
698
APPENDIX A
density of greater t h a n 500 but less t h a n 1,000 persons

per square kilometer; a n d w h e r e at least 50 percent of
t h e e c o n o m i c a l l y a c t i v e p o p u l a t i o n e n g a g e d i n non-
agricultural activities.
3. All barangays n o t i n c l u d e d in items 1 and 2
above w h i c h h a v e a p o p u l a t i o n size of at least 1,000 and
w h e r e at least 50 p e r c e n t of t h e economically active
populations are e n g a g e d in non-agricultural activities.
(h) U r b a n i z a b l e l a n d s refer to s i t e s a n d l a n d areas
w h i c h , c o n s i d e r i n g p r e s e n t characteristics a n d prevailing
conditions, display a marked and high probability of
b e c o m i n g u r b a n l a n d s w i t h i n t h e period of five to t e n years.
Sec. 4. Proclamation of Urban Land Reform Zones. The
president shall proclaim specific parcels of urban and
urbanizable l a n d s as u r b a n l a n d Reform Zones, otherwise
k n o w n as Urban Zones for p u r p o s e s of this Decree, w h i c h
m a y i n c l u d e B a g o n g L i p u n a n Sites, as defined in P.D. 1396.
U p o n proclamation, t h e Ministry of Human Settlements,
h e r e a f t e r r e f e r r e d t o a s t h e Ministry, shall p r e p a r e t h e
appropriate d e v e l o p m e n t a n d z o n i n g plans, a n d formulate
the enforcement a n d i m p l e m e n t i n g guidelines w h i c h shall
be in force a n d effect u p o n approval by the President and
shall be enforced by t h e Ministry or its attached agencies.
No urban land c a n be d i s p o s e d of or u s e d or constructed
on u n l e s s its disposition or u s e conforms w i t h the develop-
ment a n d zoning p l a n s of t h e Ministry, a n d the approved
enforcement a n d i m p l e m e n t a t i o n guidelines in accordance
w i t h t h e Official D e v e l o p m e n t R e g i s t r y S y s t e m a n d the
Development u s e permit System provided for in Sections 13
and 16 of this Decree.
Sec. 5. Creation of an Urban Land Reform Coordinating
Council. An interagency body, to be k n o w n as the Urban land
Reform Coordinating Council, hereinafter referred to as the
Coordinating Council, is hereby constituted. It shall be com-
p o s e d of t h e M i n i s t e r s of H u m a n S e t t l e m e n t s Agrarian
Reform, Finance, Justice, Local Government and Community
Development, Industry, Natural Resources, and the President
699
REMEDIAL LAW
VOL. Ill
of the Land Bank; with the Minister of Human Settlements

as the Chairman.
The Ministry, in c o n j u n c t i o n w i t h t h e c o o r d i n a t i n g
Council, shall formulate the general policies and guidelines
for the Urban Land Reform P r o g r a m a n d its r u l e s a n d
regulations, which shall come into force and effect u p o n the
approval of the President.
Sec. 6. Land Tenancy in Urban Land Reform Areas. Within
the Urban Zones legitimate t e n a n t s w h o h a v e r e s i d e d on the
land for ten years or more w h o h a v e built their h o m e s on the
land and residents w h o h a v e legally o c c u p i e d t h e lands by
contract, continuously for the last t e n years shall n o t be
dispossessed of the land a n d shall be allowed t h e right of
first refusal to purchase the s a m e w i t h i n a reasonable time
and at reasonable prices, u n d e r terms a n d c o n d i t i o n s to be
d e t e r m i n e d by t h e U r b a n Zone E x p r o p r i a t i o n a n d Land
Management Committee created by S e c t i o n 8 of this Decree.
Sec. 7. Acquisition of Residential Lands for Existing
Tenants and Residents. In c a s e s w h e r e t h e t e n a n t s a n d
residents, referred to in Section 6 of this Decree, are unable
to purchase said lands, the Government shall acquire t h e
land and/or improvements t h e r e o n by expropriation or other
land acquisition t e c h n i q u e p r o v i d e d for u n d e r S e c t i o n 11 of
this Decree.
In case of expropriation the Government shall acquire
said lands in accordance w i t h t h e policies of e x i s t i n g l a w
especially Presidential D e c r e e No. 76 as a m e n d e d by para-
graph 3 of Presidential D e c r e e 1224 a n d S e c t i o n 1 of Presi-
dential Decree No. 1313 as h e r e i n a m e n d e d .
Upon the filing of the petition for expropriation a n d t h e
deposit in the Philippine National Bank at its m a i n office or
any of its branches of t h e a m o u n t equivalent to t e n percent
(10%) of the declared a s s e s s m e n t v a l u e in 1975, t h e Govern-
ment, or its authorized a g e n c y or entity shall immediately
have possession, control a n d disposition of the real property
and the improvements t h e r e o n w i t h the p o w e r of demolition,
if necessary, e v e n p e n d i n g resolution of t h e i s s u e s that m a y
700
APPENDIX A
be raised w h e t h e r before the Court of First Instance, Court

of Agrarian Relations, or the higher courts.
Sec. 8. Creation of Urban Zone Expropriation and Land
Management Committee. For the purpose of expropriating
lands as provided u n d e r Section 7, the Ministry is hereby
v e s t e d w i t h t h e p o w e r o f e m i n e n t domain.
To assist t h e Ministry in the exercise of this power, an
Urban Zone Expropriation and Land Management Committee,
hereinafter referred to as t h e Committee, shall be created in
t h e city, t o w n or locality or w i t h i n t h e Urban Zone, to be
c o m p o s e d of m e m b e r s from t h e relevant government and
private sectors designated by the Minister of Human
Settlements, with the authorized representative of the
Ministry s e r v i n g as t h e Chairman.
The Committee shall in addition to the above mentioned
function, formulate programs a n d projects specific to the
Urban Zones, specifying among others, the operative
procedure for l a n d acquisition a n d its phasing, and shall
r e c o m m e n d t o t h e C o o r d i n a t i n g Council the appropriate
mode of disposition and other related aspects of land
management.
Sec. 9. Compulsory Declaration of Sale and Pre-emptive
Rights. U p o n t h e proclamation by the President of an area as
an Urban Land Reform zone, all landowners, tenants and
residents t h e r e u p o n are required to declare to the Ministry
any proposal to sell, l e a s e or e n c u m b e r lands and
improvements thereon, including the proposed price, rent
or v a l u e of e n c u m b r a n c e s a n d s e c u r e approval of said
proposed transaction.
The Ministry shall h a v e the pre-emptive right to acquire
the above mentioned lands and improvements thereon which
shall include, but shall not be limited to lands occupied by
tenants as provided for in Section 6 of this Decree.
Sec. 10. Innovative Land Acquisition Techniques. The
Ministry and/or its appropriate attached agency is hereby
authorized to utilize any innovative land acquisition
techniques as an alternative to land purchase and expro-
701
REMEDIAL LAW
VOL. Ill
priation for the p u r p o s e of a c q u i r i n g l a n d s w i t h i n t h e

proclaimed ULRZs and/or Bagong Lipunan sites, including
land assembly, land banking, land e x c h a n g e , land conso-
lidation and readjustment and joint venture arrangements.
Sec. 11. Land Valuation. The Ministry of F i n a n c e shall
develop and utilize n e w valuation techniques and assessment
classification levels appropriate to the innovative acquisition
techniques and tax system provided for in this Decree.
Sec. 12. Official Development Registry. To provide the
basis for d e c i s i o n s o f t h e Ministry w i t h r e g a r d t o l a n d
acquisition, exercise of pre-emptive rights, u n d e r Section 9
of this D e c r e e a n d d i s p o s i t i o n of l a n d s , a n d to r e g u l a t e
transactions affecting land, the Ministry, through t h e H u m a n
Settlements Regulatory Commission, shall u n d e r t a k e on a
continuing basis in e v e r y p r o c l a i m e d U r b a n Zone, regis-
tration of existing land rights and interests, a n d development
proposals of public and private entities through the
establishment of an Official D e v e l o p m e n t Registry.
The Registry shall contain, a m o n g others, information
on detailed boundaries, of lands, titles to said lands and intent
to acquire and/or d e v e l o p specific parcels of land, w h i c h
information shall be furnished by t h e h o l d e r s of l a n d rights
and interested developers.
Sec. 13. Role of the Bureau of Lands and the Land
Registration Commission. The B u r e a u of Lands a n d t h e Land
Registration Commission shall provide t h e Ministry w i t h t h e
cadastral m a p s a n d o t h e r i n f o r m a t i o n e n t e r e d i n t o t h e
Development Registry.
The Land Registration Commission, shall prior to
registration of any transactions affecting properties in the
Urban Zones, first secure clearance from t h e Ministry.
Sec. 14. Land Disposition. The Government shall adopt,
as a g e n e r a l policy, a c o m b i n a t i o n of l a n d d i s p o s i t i o n
techniques w i t h Urban Land Reform Zones.
The Ministry is hereby authorized to utilize innovative
land disposition t e c h n i q u e s in Urban z o n e s and/or B a g o n g
Lipunan sites, including neighborhood ownership, residential
702
APPENDIX A
freeholds subject to i m p r o v e m e n t conditions and the reser-

vation of d e v e l o p m e n t rights, a n d tenure in improvements
separate from t e n u r e in land. For this purpose, the Human
S e t t l e m e n t s D e v e l o p m e n t Corporation created under P.D.
1396 a s t h e c o r p o r a t e a r m o f t h e M i n i s t r y s h a l l ,
n o t w i t h s t a n d i n g t h e prohibition c o n t a i n e d in Section 7(e) of
P.D. 1396 be authorized to dispose of lands in any of the
m a n n e r provided for in this Section.
T h e Ministry, i n c o n s o l a t i o n w i t h t h e C o o r d i n a t i n g
Council, shall d e t e r m i n e the appropriate land disposition
s c h e m e s for e a c h Urban Zones.
Sec. 15. Development Use Permit System for Urban Land
Reform Areas. A c o m p r e h e n s i v e d e v e l o p m e n t u s e permit
s y s t e m is h e r e b y established in proclaimed Urban Zones and/
or B a g o n g Lipunan sites w h i c h shall govern the development
of lands w i t h i n said areas.
U n d e r this system, no d e v e l o p m e n t of lands including
its use, alteration a n d construction t h e r e o n shall take place
w i t h o u t t h e c o r r e s p o n d i n g D e v e l o p m e n t Use Permit being
i s s u e d b y t h e Ministry, t h r o u g h t h e H u m a n S e t t l e m e n t s
Regulatory Commission.
Sec. 16. Taxation. Within d e s i g n a t e d Urban Zones and/
or B a g o n g L i p u n a n sites, t h e g o v e r n m e n t shall implement a
taxation s y s t e m in support of the basic policies underlying
the urban l a n d reform program.
For t h e s e purposes, the Ministry of Natural Resources
a n d t h e Ministry of F i n a n c e shall c o n d u c t an inventory,
assessment of idle lands throughout the Philippines, with
priority given to Urban Zones.
Sec. 17. Land Development Financing. To ensure and
encourage private participation in land development and
management activities t h e Ministry, with the appropriate
public and private agencies, shall develop and recommend
for the president's approval appropriate programs which shall
mobilize land development funds from private individual
group sources, government financial institution, joint public-
private ventures, and private financial institutions.
703
REMEDIAL LAW
VOL. Ill
Sec. 18. Land Development Accounting. The Ministry

shall, where deemed necessary, institute a Land Development
Accounting System for Urban Zones and designated Bagong
Lipunan sites, w h i c h shall constitute a record of market
transactions and revenue related to Government land acqui-
sition, development and m a n a g e m e n t activities.
Sec. 19. Public Hearings. T h e Ministry t h r o u g h t h e
Human S e t t l e m e n t s R e g u l a t o r y C o m m i s s i o n shall, u p o n
proclamation of the Urban Zones, c o n d u c t public hearings in
order to allow the persons affected by said proclamation a n d
related acts, to present their v i e w s g r i e v a n c e s a n d recom-
mendations to the Ministry.
Sec. 20. Administrative Fines. Any violation of any pro-
visions of this Decree or any of the rules or regulations i s s u e d
thereunder shall be subject to t h e fines not e x c e e d i n g t e n
t h o u s a n d p e s o s (P10,000) to be i m p o s e d by t h e Ministry
through the Human Settlements Regulatory Commission.
Sec. 21. Penal Provisions. Any person, firm or corporation
w h o shall violate the provisions of t h i s D e c r e e and/or any
rules or regulations issued thereunder shall, u p o n conviction,
be p u n i s h e d by a fine of not m o r e t h a n t w e n t y t h o u s a n d
pesos (P20,000) and/or i m p r i s o n m e n t of n o t m o r e t h a n t e n
years or both at the discretion of t h e court, Provided, that in
the case of a corporation, firm, partnership, or association,
the p e n a l t y shall be i m p o s e d u p o n its officials for s u c h
violation, and in case t h e guilty party is an alien, he shall
immediately be deported after payment of the fine and serving
the imprisonment.
Provided, further, That e v e r y day that t h e violation shall
be carried on or permitted to be carried on shall be considered
as a separate offense.
Sec. 22. Repealing Clause. All laws, decrees, e x e c u t i v e
orders, r u l e s a n d r e g u l a t i o n s i n c o n s i s t e n t h e r e w i t h a r e
hereby repealed, a m e n d e d or modified accordingly.
Sec. 23. Separability Clause. If, for a n y reasons, any
section or provision of t h e D e c r e e is h e r e b y declared to be
unconstitutional or invalid, the other provisions hereof not
affected shall continue in full force and effect.
704
APPENDIX A
Sec. 24. Effectivity. This Decree shall take effect imme-

diately.
D o n e in t h e City of Manila, this 11th day of June, in the
year of Our Lord, n i n e t e e n h u n d r e d and seventy-eight.
1. When May Law Be Availed of

PD 1517 maybe availed of only in cases where the owner of the
property intends to sell it to a third party. The legitimate tenant of
at least ten (10) years standing may not be ejected, but only if he
1
decides to purchase the property intended for sale by its owner. The
preemptive or redemptive right of the lessee exists only in respect of
the urban land under lease on which the tenant or lessee has built
his home and in which he had resided for ten years or more, where
both land and building belong to the lessor, that pre-emptive or
2
redemptive right is not available.
2. Defenses U n d e r t h e Land Reform Law

Under Section 6 of PD 1517 the terms and conditions of the
sale in the exercise of the lessee's right of first refusal to purchase
shall be determined by the Urban Zone Expropriation and Land
Management Committee. Hence, certain requisites must be complied
with by anyone who wishes to avail himself of the benefits of the
decree. Where there is no allegation in the complaint that the
prerequisites were complied with, the complaint does not state a
3
cause of action on this ground.
Only legitimate tenants who have resided for ten years or more
on specific parcels of land situated in declared Urban Land Reform
Zones and who have built their homes thereon have the right not to
be dispossessed therefrom and the right of first refusal to purchase
the property under reasonable terms and conditions to be determined
4
by the appropriate government agency. The Urban Land Reform
5
Law, is however, applicable only if there is an offer for sale.
S a l v a d o r v. Alvarez, G.R. No. 80486, Nov. 15, 1989.

2
Malabanan v. Gaw Ching, G.R. Nos. 74938-39, January 17, 1990, 181 SCRA.
3
Paraftaque Kings Enterprises Incorporated v. Court of Appeals, G.R. No. 111538,
February 26, 1997, 268 SCRA 727.
4
Guzman v. Court of Appeals, 177 SCRA 604 (1989); Vide Nidoy v. Court of
6
CaparroB v. CA, 170 SCRA 758; Ramos v. IAC, 171 SCRA 93.
705
REMEDIAL LAW
VOL. Ill
"Tenant" refers to the rightful occupant of land and its struc-

tures, but does not include those whose presence on the land is
merely tolerated and without the benefit of contract, those who enter
the land by force or deceit, or those whose possession is under
6
litigation.
7
A usufructuary is not a "legitimate tenant" under PD 1517.
It cannot be denied that at the time the subject property was
declared an APD in December 1987, the right of private respondent
to occupy and possess the subject property was then an issue under
8
litigation in the action for ejectment filed against them by petitioners.
Private respondents are not the "legitimate tenants" envisaged
in Section 6 of Pres. Decree No. 1517 considering that their possession
of the subject property has been rendered illegal by their stubborn
and unjustified refusal to comply with their obligation to pay their
9
monthly rentals to petitioners.
The intended beneficiaries of the Urban Land Reform Act are
the members of the urban poor. The repeated mention of this socio-
economic class, as well as the word "human," points to a specific
intent on the p a r t of the law to g r a n t relief to economically
disadvantaged people, particularly families unable to acquire the
lots they occupy due to the decision of the landowners to sell them to
speculators. Further perusal of this decree shows that, under Section
7, in the event that such residents are unable to buy the lands they
occupy, the government shall acquire t h e lots for t h e m via
expropriation.
In Santos v. CA, 213 Phil. 385 (1984), the Court stated that:
P.D. No. 1517, in referring to the preemptive or

redemptive right of a lessee speaks only of urban land
under lease on which a tenant has built his home and in
which he has resided for ten years or more...
6
Sec. 3, RD. 1517.
7
Urban Land Reform Law; Alcantara v. Reta, Jr., G.R. No. 136996, Dec. 14,
2001.
8
Supra.
9
Supra.
706
APPENDIX A
Not only did the Court reiterate this doctrine in the case of
House International Building Tenants Association, Inc. v.
Intermediate Appellate Court, 151 SCRA 703 (1987), it also ruled out
the possibility that the law could apply to juridical persons such as
the respondent:
The petitioners likewise invoke our ruling in Mataas
na Lupa Tenants Association, Inc., et al. vs. Dimayuga, et
al. (G.R. No. L-32049, J u n e 25,1984,130 SCRA 30) where
we upheld the petitioners (sic) right of first refusal over
land they had leased and occupied for more than ten (10)
years and on which they had constructed their houses, a
right given them under P.D. No. 1517 (and Proclamation
No. 1967 of May 14,1980). For two reasons this case gives
the petitioners' case no support. In Mataas na Lupa the
members of the ASSOCIATION were also plaintiffs in
their individual capacity. This is not so in the present
case...
Under no possible interpretation of PD 1517 could respondent's

t a x i g a r a g e be considered a "house" or a "home." Such an
interpretation r u n s contrary to the spirit of the said decree.
Respondent therefore cannot claim a pre-emptive right to purchase
10
the property.
II
THE HOUSE RENTAL LAWS
1. PRESIDENTIAL DECREE NO. 20

AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT
NO. 6359, ENTITLED "AN ACT TO REGULATE RENTALS FOR
TWO YEARS OF DWELLING UNITS OR OF LAND ON WHICH
ANOTHER'S DWELLING IS LOCATED AND PENALIZING
VIOLATIONS THEREOF, AND FOR OTHER PURPOSES."
WHEREAS, the effect of the recent calamities which
b e f e l l t h e c o u n t r y t e n d e d t o r a i s e p r i c e s o f t h e basic
necessities of life including rentals for housing;
10
Inducil v. Tops Taxi, Inc., G.R. No. 144172, 4 May 2005.
707
REMEDIAL LAW
VOL. Ill
WHEREAS, the Government through various measures

have successfully been able to stabilize the prices of basic
commodities, and it is essential that rentals for h o u s i n g
should likewise be stabilized; and
WHEREAS, the freezing of rentals for the lower income
group at their present levels is desirable as the equitable
levels for both the lessor and the lessee:
NOW, T H E R E F O R E , I, F E R D I N A N D E. M A R C O S ,
President of the Philippines, by virtue of the p o w e r s v e s t e d
in me by the Constitution as Commander-in-Chief of all the
Armed Forces of the Philippines and pursuant to
Proclamation No. 1081, dated September 21,1972, and General
Order No. 1 dated September 22,1972, as amended, do hereby
adopt a n d m a k e a s part o f t h e l a w o f t h e l a n d c e r t a i n
amendments to the provisions of Republic Act No. 6359, w h i c h
shall read as follows:
Section 1. No lessor of a d w e l l i n g unit or of land on
which another's dwelling is located shall, u p o n promulgation
of this Decree a n d until o t h e r w i s e provided, i n c r e a s e t h e
monthly rental agreed upon b e t w e e n the lessor a n d the lessee,
as of the effectivity of this Act w h e n said m o n t h l y rental d o e s
not e x c e e d three h u n d r e d p e s o s (P300.00) a m o n t h .
Sec. 3. No lessor of a d w e l l i n g unit or of l a n d on w h i c h
another's dwelling is located m a y d e m a n d a deposit, for any
purpose, of any a m o u n t in e x c e s s of t w o month's rental in
advance.
Sec. 4. Except w h e n the lease is for a definite period, the
provisions of paragraph (1) of Article 1673 of t h e Civil Code
of the Philippines insofar as t h e y refer to d w e l l i n g unit or
land on which another's dwelling is located shall be
suspended until otherwise provided; but other provisions of
the Civil Code and the Rules of Court of the P h i l i p p i n e s on
lease contracts, insofar as t h e y are not in conflict w i t h the
provisions of this Act, shall apply.
Sec. 5. Any person violating any provision of this Act
shall be p u n i s h e d by imprisonment of not less t h a n one year
nor more than five years a n d a fine of not less than five
thousand pesos nor more than t e n t h o u s a n d pesos.
708
APPENDIX A
This Decree shall take effect immediately.

D o n e in the City of Manila this 12th day of October, in
the year of Our Lord, n i n e t e e n h u n d r e d and seventy-two.
2. BATAS PAMBANSA BLG. 25

AN ACT REGULATING RENTALS OF DWELLING UNITS
OR OF L A N D ON WHICH A N O T H E R ' S DWELLING IS
LOCATED AND FOR OTHER PURPOSES.
B e i t e n a c t e d b y t h e B a t a s a n g P a m b a n s a i n session
assembled:
S e c t i o n 1. Authority in Increase Rentals. Upon the
e f f e c t i v i t y of t h i s Act a n d for a d u r a t i o n of five y e a r s
thereafter t h e m o n t h l y rentals of all residential units not
e x c e e d i n g t h r e e h u n d r e d p e s o s shall not be increased, for
any o n e year period, by more t h a n t e n percent (10%) of the
m o n t h l y rentals e x i s t i n g at t h e time of the approval of this
Act.
The yearly i n c r e a s e s authorized h e r e i n shall be cumu-
lative.
Sec. 2. Definitions of Terms. Unless otherwise indicated
w h e r e v e r in t h i s Act, t h e following terms shall h a v e the
following meaning:
a. Rental shall m e a n t h e a m o u n t paid for the use or
o c c u p a n c y of residential units w h e t h e r payment is made on
a monthly or other basis.
b. A residential unit refers to an apartment, house
and/or land on w h i c h another's dwelling is located used for
residential purposes and shall include not only buildings,
parts or units thereof u s e d solely as dwelling places, except
motels, motel rooms, hotel, hotel rooms, boarding houses,
dormitories, rooms a n d bedspaces for rent, but also those
u s e d for h o m e industries, retail stores or other business
purposes if the o w n e r thereof and his family actually live
therein and use it principally for dwelling purposes; Provided,
That in the case of a retail store, home industry or business,
the capitalization thereof shall not exceed five thousand pesos
709
REMEDIAL LAW
VOL. Ill
(P5,000.00); and Provided, further, That in the operation of

the store, industry or business, the owner thereof shall not
require the services of any person other than the immediate
members of his family.
c. Immediate members of family of the lessee or lessor
shall be limited to his direct ascendants or descendants, and
collateral relatives within the second civil degree by
consanguinity or affinity.
d. Lessee shall m e a n the person renting a residential
unit.
e. Owner/Lessor s h a l l i n c l u d e t h e o w n e r or
administrators or agents of the o w n e r of t h e residential unit.
f. Sublessor shall m e a n the p e r s o n w h o l e a s e s or
rents a residential unit from a sublessor.
g. Sublessee shall m e a n t h e p e r s o n w h o l e a s e s or
h. Assignment of lease s h a l l m e a n t h a t act
contemplated in Article 1649 of the N e w Civil Code.
Sec. 3. Advance Rental and Deposit. Advance rental
intended to cover the initial month's r e n t m a y be d e m a n d e d
by the lessor or sublessor but not to e x c e e d o n e month's
rental.
Sec. 4. Subleasing or Assignment of Lease. S u b l e a s i n g
or assignment of lease of t h e w h o l e or a n y portion of t h e
residential unit w i t h o u t the w r i t t e n c o n s e n t of t h e owner/
lessor is prohibited. In no c a s e shall the sublessor or assignor
charge rentals higher than the rental charged on the property
by t h e o w n e r / l e s s o r : Provided, T h a t if t h e s u b l e a s e d or
assigned area is less t h a n the total area originally leased, t h e
rental shall be proportionately reduced.
Sec. 5. Grounds for Judicial Ejectment. Ejectment shall
be allowed on the following grounds:
a. Subleasing or a s s i g n m e n t of l e a s e of residential
units in whole or in part, w i t h o u t t h e w r i t t e n c o n s e n t of the
owner/lessor: Provided, That in the case of subleases or assign-
710
APPENDIX A
ments executed prior to the approval of this Act, the sublessor/

assignor shall h a v e sixty days from the effectivity of this Act
w i t h i n w h i c h to obtain t h e w r i t t e n approval of the owner/
lessor or terminate t h e sublease or assignment.
b. Arrears in p a y m e n t of rent for three (3) months at
any o n e time: Provided, That in c a s e of refusal by the lessor
to accept p a y m e n t of t h e rental agreed upon, the lessee shall
either deposit, by w a y of consignation, the amount in court,
or in a b a n k in t h e n a m e of a n d w i t h notice to the lessor.
c. N e e d of owner/lessor to r e p o s s e s s his property for
h i s o w n u s e or for t h e u s e of any i m m e d i a t e member of his
family as a residential unit, s u c h o w n e r or immediate member
not b e i n g t h e o w n e r of a n y other available residential unit:
Provided, however, That t h e p e r i o d of l e a s e h a s expired;
Provided, further, That t h e lessor h a s g i v e n t h e l e s s e e notice
three m o n t h s in a d v a n c e of t h e lessor's intention to repossess
t h e property; and Provided, finally, That t h e owner/lessor or
immediate m e m b e r stays in t h e residential unit for at least
o n e year, e x c e p t for justifiable cause.
d. O w n e r s h i p by t h e l e s s e e of another residential unit
w h i c h he m a y u s e as h i s residence; Provided, That the lessee
shall have b e e n notified by the lessor of the intended
ejectment t h r e e m o n t h s i n advance.
e. N e e d of t h e lessor to m a k e n e c e s s a r y repairs of the
leased p r e m i s e s w h i c h is t h e subject of an existing order of
c o n d e m n a t i o n b y a p p r o p r i a t e a d m i n i s t r a t i v e authorities
c o n c e r n e d i n o r d e r t o m a k e t h e s a i d p r e m i s e s safe and
habitable: Provided, That after said repair, the lessee ejected
shall have the right of first refusal of the lease of the same
premises.
f. Expiration of t h e period of a written lease contract.
In no case shall the lessor or his successor-in-interest be
entitled to eject the l e s s e e upon the ground that the leased
premises h a s b e e n sold or mortgaged to a third person.
Sec. 6. Application of the Civil Code and Rules of Court
of the Philippines. - Except w h e n the lease is for a definite
period, the provisions of paragraph (1) of Article 1673 of the
711
REMEDIAL LAW
VOL. Ill
Civil Code of the Philippines insofar as they refer to resi-

dential units covered by this Act shall be suspended during
the effectivity of this Act, but other provisions of the Civil
Code and the Rules of Court on lease contracts, insofar as
they are not in conflict w i t h the provisions of this Act, shall
apply.
Sec. 7. Coverage of the Act. All residential units the
total monthly rental of w h i c h d o e s not e x c e e d three h u n d r e d
pesos (P300.00) as of the effective date of this Act shall be
covered by this Act a n d shall c o n t i n u e to be so c o v e r e d
notwithstanding that the monthly rental shall h a v e already
exceeded the three h u n d r e d peso-limit as a result of t h e
application of section o n e hereof: Provided, however. That
this Act shall not be applicable to n e w r e s i d e n t i a l u n i t s
constructed during its effectivity.
Sec. 8. Penalty Clause. A n y p e r s o n v i o l a t i n g a n y
provision of this Act shall be p u n i s h e d by imprisonment of
not less than three (3) m o n t h s nor more t h a n t w o (2) years
and a fine of not less t h a n o n e t h o u s a n d p e s o s (PI,000.00) nor
more than two thousand pesos (P2,000.00). Where the offender
is a corporation or juridical entity, t h e P r e s i d e n t or General
Manager thereof shall suffer t h e penalty, w i t h o u t prejudice
to the imposition of the fine on s u c h corporation or a juridical
entity.
Sec. 9. Separability Clause. if for a n y reason, a n y
section or provision of this Act is declared u n c o n s t i t u t i o n a l
or invalid, the other s e c t i o n s or provision hereof w h i c h are
not affected thereby, shall c o n t i n u e in full force a n d effect.
S e c . 10. Repealing Clause. P r e s i d e n t i a l D e c r e e
Numbered Twenty a n d all l a w s , d e c r e e s , orders or parts
thereof inconsistent w i t h the provisions of this Act are hereby
repealed or modified accordingly.
S e c . 11. Effectivity. - T h i s A c t s h a l l t a k e e f f e c t
immediately u p o n its approval a n d shall r e m a i n in force for
five (5) years thereafter.
This Act w a s p a s s e d by t h e B a t a s a n g P a m b a n s a on April
2, 1979.
712
APPENDIX A
3. BATAS PAMBANSA BLG. 877*

AN ACT PROVIDING FOR THE STABILIZATION AND
REGULATION OF RENTALS OF CERTAIN RESIDENTIAL
UNITS AND FOR OTHER PURPOSES.
Be it e n a c t e d by t h e B a t a s a n g P a m b a n s a in s e s s i o n
assembled:
Section 1. Monthly Rentals and Maximum Increases.
B e g i n n i n g J u l y 1, 1985 a n d for a duration of t w o and a half
y e a r s t h e r e a f t e r e n d i n g o n D e c e m b e r 31, 1987, m o n t h l y
rentals of all residential u n i t s not e x c e e d i n g four hundred
eighty (P480.00) p e s o s shall n o t be i n c r e a s e d by the lessor by
more t h a n t h e rates h e r e i n provided:
Period Maximum Increase

J u l y 1, 1985 to D e c e m b e r 31, 1985 10 percent
J a n u a r y 1, 1986 to D e c e m b e r 31, 1986 20 percent
J a n u a r y 1, 1987 to D e c e m b e r 31, 1987 20 percent
The increases authorized h e r e i n shall be cumulative and

compounded.
Sec. 2. Definition of Terms.
(a) Rental shall m e a n t h e a m o u n t paid for the use or
o c c u p a n c y of a residential unit w h e t h e r payment is m a d e on
a monthly or other basis.
(b) A Residential Unit refers to an apartment, house
and/or land on w h i c h another's dwelling is located used for
residential p u r p o s e s and shall include not only buildings,
parts or units thereof u s e d solely as dwelling places, except
motels, motel rooms, hotels, hotel rooms, boarding houses,
dormitories, rooms and b e d s p a c e s offered for rent by their
owners, but also those used for h o m e industries, retail stores
or other business purposes in the owner thereof and his family
actually live t h e r e i n a n d use it principally for dwelling
purposes; Provided, That in the case of a retail store, home
industry or business, the initial capitalization thereof shall
not e x c e e d five thousand pesos (P5,000.00), and Provided,
713
REMEDIAL LAW
VOL. Ill
further. That in the operation of the store, h o m e industry or

business, the owner thereof shall not require the services of
any person other than the members of his household.
(c) Immediate members of Family of the Lessee or Lessor
for purposes of repossessing the leased premises, shall be
limited o his or her spouse, direct descendant or ascendants,
by consanguinity or affinity.
(d) Lessee shall m e a n the person renting a residential
unit.
(e) Owner/Lessor s h a l l i n c l u d e t h e o w n e r or
administrator or agents of t h e o w n e r of t h e residential unit.
(f) Sublessor shall m e a n the p e r s o n w h o l e a s e s or
rents out a residential unit l e a s e d to h i m by an owner.
(g) Sublessee shall m e a n t h e p e r s o n w h o l e a s e s or
(h) Assignment of Lease shall m e a n that act con-
templated in Article 1649 of t h e Civil Code of t h e Philip-
pines.
Sec. 3. Rental and Deposit. Rental shall be p a i d in
advance w i t h i n t h e first five days of e v e r y current m o n t h or
the beginning of the lease a g r e e m e n t u n l e s s t h e contract of
lease provides for a later date of payment. The lessor c a n n o t
demand any advance rental but he m a y ask for deposit not to
exceed one m o n t h rental.
Sec. 4. Assignment of Lease or Subleasing. A s s i g n m e n t
of lease or subleasing of t h e w h o l e or a n y portion of t h e
residential unit, i n c l u d i n g t h e a c c e p t a n c e of boarders or
bedspacers, without the w r i t t e n c o n s e n t of t h e owner/lessor
is prohibited. In case c o n s e n t is g i v e n by t h e owner-lessor,
the sublessor or assignor cannot charge rentals h i g h e r t h a n
the rental charged on the property by t h e owner/lessor.
Sec. 5. Grounds for Judicial Ejectment. Ejectment shall
be allowed on the following grounds:
(a) Assignment of l e a s e or s u b l e a s i n g of residential
units in whole or in part, including the acceptance of boarders
714
APPENDIX A
or bedspacers, w i t h o u t t h e written consent of the owner/

lessor.
(b) Arrears in p a y m e n t of rent for a total of three (3)
months; Provided, That in c a s e of refusal by the lessor to
accept p a y m e n t of t h e rental agreed upon, the lessee may
either deposit, by w a y of consignation, t h e amount in court,
or w i t h t h e city or municipal treasurer, as the case may be,
or in bank in t h e n a m e of a n d w i t h notice to the lessor, within
one m o n t h after t h e refusal of t h e lessor to accept payment.
The l e s s e e shall thereafter deposit t h e rental w i t h i n ten
days of e v e r y current m o n t h . Failure to deposit rentals for
three m o n t h s shall constitute a g r o u n d for ejectment. If an
ejectment c a s e is already pending, t h e court u p o n proper
motion may order the lessee or any person or persons
claiming under h i m to immediately vacate the leased premises
without prejudice to the continuation of the ejectment
proceedings. At any time, t h e lessor may, u p o n authority of
t h e court, w i t h d r a w t h e rentals deposited.
The lessor, u p o n authority of the court in case of consign-
ation a n d u p o n joint affidavit by h i m and the lessee to be
submitted to t h e city or municipal treasurer and to the bank
w h e r e deposit w a s m a d e , shall be allowed to withdraw the
deposits.
(c) Legitimate n e e d of ownerAessor to repossess his
property for his o w n u s e or for the use of any immediate
member of his family as a residential unit, such owner or
immediate member not being the owner of any other available
residential unit within the same city or municipality:
Provided, however, That the lease for a definite period has
expired: Provided, further, That the lessor has given the lessee
formal notice three (3) m o n t h s in advance of the lessor's
intention to repossess the property: and Provided, finally,
T h a t t h e o w n e r / l e s s o r i s p r o h i b i t e d from l e a s i n g t h e
residential unit or allowing its use by a third-party for at
least one year.
(d) A b s o l u t e o w n e r s h i p b y t h e l e s s e e o f a n o t h e r
dwelling unit in the same city or municipality which he may
lawfully use as his residence: Provided, That the lessee shall
715
REMEDIAL LAW
VOL. Ill
have been formally notified by the lessor of the intended

ejectment three months in advance.
(e) Need of the lessor to make necessary repairs of the
leased premises w h i c h is the subject of an existing order of
condemnation by appropriate authorities concerned in order
to make the said premises safe and habitable: Provided, That
after said repair, t h e l e s s e e e j e c t e d shall h a v e t h e first
preference to lease the same premises: Provided, further, That
the n e w rental shall be reasonably commensurate w i t h the
expenses incurred for the repair of said residential unit: and
Provided, finally, That if the residential unit is c o n d e m n e d
or completely demolished, the lease of the n e w building will
no longer be subject to the provisions of this Act.
(f) Expiration of the period of the lease contract.
No lessor or his successor-in-interest shall be entitled to
eject the lessee upon t h e g r o u n d that the l e a s e d premises
has been sold or mortgaged to a third p e r s o n regardless of
whether the lease or mortgage is registered or not.
Sec. 6. Application of the Civil Code and Rules of Court
of the Philippines. Except w h e n the l e a s e is for a definite
period, the provisions of paragraph (1) of Article 1673 of the
Civil Code o f t h e P h i l i p p i n e s , i n s o f a r a s t h e y r e f e r t o
residential units c o v e r e d by t h i s Act, shall be s u s p e n d e d
during the effectivity of this Act, but other provisions of t h e
Civil Code and the Rules of Court on lease contracts, insofar
as they are not, in conflict w i t h t h e provisions of this Act
shall apply.
Sec. 7. Coverage of the Act. All residential u n i t s the
total monthly rental of w h i c h d o e s not e x c e e d four h u n d r e d
eighty pesos (P480.00) as of t h e effectivity date of this Act
shall be covered by this Act and shall continue to be so covered
notwithstanding that the m o n t h l y rental shall h a v e already
exceeded the four h u n d r e d eighty-peso limit as a result of
the application of Section one hereof or by virtue of a contract
or agreement of lease perfected before J u l y 1,1985: Provided,
however, T h a t t h i s Act s h a l l n o t b e a p p l i c a b l e t o n e w
residential units constructed or offered for rent for the first
time during its effectivity.
716
APPENDIX A
Sec. 8. Penalty Clause. A fine of not less than two

t h o u s a n d p e s o s nor more t h a n five t h o u s a n d pesos shall be
imposed on any person, natural or juridical, violating Section
1 or Section 4 of this Act.
Sec. 9. Separability Clause. If for any reason, any
section or provision of t h i s Act is declared unconstitutional
or invalid, t h e other s e c t i o n s or provisions hereof w h i c h are
not affected thereby shall c o n t i n u e in full force and effect.
Sec. 10. Repealing Clause. Batas P a m b a n s a Bilang 25
a n d all laws, decrees, orders or parts thereof inconsistent
with the provisions of this Act are hereby repealed or modified
accordingly.
S e c . 11. Effectivity. T h i s A c t s h a l l t a k e e f f e c t
i m m e d i a t e l y u p o n its approval a n d shall r e m a i n in force up
to D e c e m b e r 31, 1987.
Approved, J u n e 12, 1985.
4. REPUBLIC ACT NO. 6828
AN ACT EXTENDING THE EFFECTIVITY OF BATAS

PAMBANSA BLG. 877 ENTITLED "AN ACT PROVIDING FOR
THE STABILIZATION AND REGULATION OF RENTALS OF
C E R T A I N R E S I D E N T I A L U N I T S A N D F O R OTHER
PURPOSES" FOR ANOTHER THREE YEARS, AMENDING
THEREBY SECTION ONE OF REPUBLIC ACT NUMBERED
SIXTY-HUNDRED AND FORTY-THREE.
Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:
Section 1. The effectivity of Batas Pambansa Big. 877,
e n t i t l e d "An A c t P r o v i d i n g for t h e S t a b i l i z a t i o n a n d
Regulation of Rentals of Certain Residential Units and For
Other Purposes," is hereby e x t e n d e d for three (3) years for
the period January 1, 1990 to December 31, 1992; Provided,
That the allowable m a x i m u m increase for the three-year
period shall not be more than the rates herein provided:
717
REMEDIAL LAW
VOL. Ill
Period Maximum Increase
January 1, 1990 Twenty percent (20%)

December 31, 1990
December 31, 1991
December 31, 1992
Provided, further, That t h e b a s i s for t h e m a x i m u m

increase herein authorized for the three-year period shall be
the actual monthly rental as of D e c e m b e r 31,1989; Provided,
finally, T h a t t h e i n c r e a s e s a u t h o r i z e d h e r e i n s h a l l b e
cumulative and compounded.
Sec. 2. This Act shall take effect on J a n u a r y 1, 1990
following its publication in at least t w o (2) national n e w s -
papers of general circulation.
Approved: D e c e m b e r 30, 1989
Republic Act No. 8437 further e x t e n d e d t h e rent control
period b e g i n n i n g J a n u a r y 1,1998 a n d for a duration of four
years thereafter ending on December 31,2001 monthly rentals
1
of all residential units c o v e r e d by B a t a s P a m b a n s a Big. 877.
5. CASES UNDER THE HOUSE RENTAL LAWS (PD

20); B.P. BLG. 25; B.P. BLG. 877
A. Prohibition of ejectment of l e s s e e on g r o u n d of sale
or mortgage
The law disallows the ejectment of the lessee merely on the
ground that the leased premises had been sold or mortgaged. There
is, however, nothing under the law to prevent a vendee, who steps
into the shoes of the original owner from ejecting said lessee on
grounds expressly provided for by the Rental Laws. It has already
been settled that the subsequent owner who has established that he
^ e e Appendix.
718
APPENDIX A
bought the leased premises for him and his family's own use may
1 2
recover possession of the said premises or after the lease has expired.
While it is true t h a t under B.P. Big. 877 a lessee may not be
ejected on account of the sale or mortgage of the leased premises, the
new owner's need of the premises for the construction of dwellings
for its employees, coupled with the lessee's failure to pay the rentals
3
are legitimate grounds for the judicial ejectment of the lessee.
The conversion of an apartment into a maid/driver's quarters
and stockroom comes within the purview of Sec. 5(c) as a legitimate
4
need for residential purposes.
B. M e a n i n g of term "residence"
The law does not strictly confine the meaning of the word
"residence" mainly for habitation purposes. In a way, the definition
admits a measure of liberality, albeit limited, since a residence may
also be the site of a home industry, or a retail store or be used for
business purposes so long as it is principally used for dwelling
purposes. The law in giving greater importance to the abode being
used principally for dwelling purposes, has set the limitation on the
maximum amount of capitalization to P5,000.00.
If an abode can be used for limited business purposes, there is
no reason why it could not be used as an abode for persons rendering
services usually necessary or desirable for the maintenance and
enjoyment of a home and who personally minister to the personal
comfort and convenience of the members of the household.
A servant's quarter is an auxiliary part of a residence. Similarly,
it has been held t h a t a "dwelling house," a one-storey building
annexed to the house proper, designed for a kitchen, and another
erection attached to it, designed for a washroom, is included. A
dwelling house is an entire thing; it includes the buildings, and such
attachments as are usually occupied and used for the family for the
ordinary purposes of a house. In law it may embrace the dwelling
itself and such buildings as are used in connection with it. Where
C a u d a l v. Court of Appeals, 175 SCRA 798 (1989).

2
Garcia v. Court of Appeals, March 22, 1993, 220 SCRA 264.
3
Maceda v. Court of Appeals, 176 SCRA 440 (1989).
4
Caudal v. Court of Appeals, supra.
719
REMEDIAL LAW
VOL. Ill
partitions and consolidating the entire physical structure under one

5
continuous roof, the dwelling house constituted only one.
6
Letting a room to boarders or bedspacers is not subletting.
C. Other Cases
1. lb give preferential right to a tenant over and above a
new owner's need of the premises for his use and that of his family
7
as propounded in the Tan Tok Lee case is arbitrary and unreasonable.
8
2. Need of owner is a ground for ejectment.
3. Need of owner for daughter who got married is a valid
9
ground for ejectment. But a brother is not an immediate member of
10
the family.
4. A contractual stipulation of vacating upon need of lessor's
11
children is valid as mere intent to use is sufficient.
The real stipulation is: The term of this contract shall be on a
month to month basis commencing on February 19, until terminated
by the lessor on the ground that his children need the premises for
their own use or residence or upon any ground provided for in
12
accordance with law.
13
This is almost similar to Rantael vs. CA where the parties
also agreed that the lease shall be on a month-to-month basis.
Verbal lease of apartment where rentals are paid monthly maybe
14
legally terminated on the ground of personal use.
5
Caudal v. Court of Appeals, supra.
6
Mallarte v. Court of Appeals, G.R. No. 85108, October 4 , 1 9 8 9 .
7
Caudal v. Court of Appeals, supra; Vide Garcia v. Court of Appeals, March 22,
1993, 220 SCRA 214.
8
Tan Tok Lee v. CFI, Caloocan City, 121 SCRA 438; Pascua v. Court of Appeals,
G.R. No. 76851, March 1 9 , 1 9 9 0 , 1 8 3 SCRA 262; Vide Clutario v. Court of Appeals, 216
SCRA 341 (1992).
9
Ducusin v. CA, 122 SCRA 280.
10
Medina v. Court of Appeals, 225 SCRA 607 (1993).
u
Ibid., Ducusin v. CA.
l2
Ibid.
13
9 7 SCRA 453.
u
M i r a n d a v. Ortiz, 156 SCRA 10.
720
APPENDIX A
5. PD 20 should be liberally construed. It is not the location

of the premises but the use thereof that is decisive on whether the
16
unit is residential or commercial.
6. A dwelling unit is within the purview of PD 20 although
situated in a commercial center. The determinative factor is not the
16
location but the use of the premises.
7. PD No. 20 will not apply if it causes inequity against the
17
property owner.
18
PD 20 respects obligation of contracts.
8. When the property is commercial and the rent is more
19
than the limit set in B.P. 25, the lessee is not protected by that law.
9. It is not correct to say as petitioner does that BP 25, being
in derogation of property rights "should be strictly construed in favor
of landowners whose property is affected by its terms" x x x Rather
there should be a balancing of conflicting interest bearing in mind
the social justice theory of BP 25 which is precisely enacted as a
20
social welfare legislation.
10. An agreement that either one may terminate the lease on
21
30 days notice is the law between the parties.
11. Refusal to collect or accept rentals is not a defense. There
22
must be consignation. Acceptance of back rentals after demand to
23
vacate does not legitimize possession. Consignation must be where
Sec. 5(b) provides either in court or in bank, in the name of and with
24
notice to the lessor and not elsewhere.
15
S a u r e v. Pentecostes, 104 SCRA 642.
16
Caburnay v. Ongsiako, 112 SCRA 102.
"Sinclair v. CA, 115 SCRA 318.
16
Ibid.
1B
Philippine Feeds Milling Co. v. Court of Appeals, 174 SCRA 108 (1989); See
also Bondoc v. Court of Appeals, 177 SCRA 588 (1989).
20
L i w a n a g v. CA, 121 SCRA 354; Pascua v. Court of Appeals, supra.
21
Cruz v. Puno, Jr., 120 SCRA 497.
22
Velez v. Avelino, 127 SCRA 602; Soco v. Militante, 123 SCRA 161; Uy v. Court
of Appeals, G.R. 78538, October 2 5 , 1 9 8 9 .
"Cursino v. Bautista, G.R. 50335, August 1 7 , 1 9 8 9 , 1 7 6 SCRA 65.
"Medina v. Court of Appeals, 225 SCRA 607.
721
REMEDIAL LAW
VOL. Ill
D. Proper Remedies in Ejectment Cases

1. Where the ejectment is based on the personal need of
lessor, the failure to comply with 3-month notice requirement of
Batas Pambansa 25 is jurisdictional. The decision of the Municipal
Court may be annulled by a special civil action for certiorari in CFI
25
even if the reglementary period to appeal has expired. In this case,
it was held that the Municipal Court has no jurisdiction. Compare:
26
Buazon vs. Court of Appeals, non-compliance is not jurisdictional
but merely a ground for dismissal for lack of cause of action.
2. The ejectment of a tenant is not valid where the tenant
has not defaulted in payment of rentals and the lease has no fixed
27 28
term. The remedy of certiorari was allowed.
3. BP 25 does not authorize ejectment even if the lessor
offers to make available to the tenant a substitute dwelling under
the same terms and conditions of occupancy. Not only is it necessary
that the lessor needs the leased premises for his own use or for the
use of an immediate member of his family as a residential unit; it is
further required that such owner or immediate member is not the
29
owner of any other available residential unit. The failure to allege
in the complaint that the lessor is not the owner of any other available
30
residential unit in Manila is a deficiency.
E. Failure to P a y n e w Rates
Where the unpaid rentals demanded by petitioner were based
on a new rate which it unilaterally imposed and to which respondent
did not agree, there could still be ground for ejectment based on non-
payment of rentals. The recent case of T & C Development Corporation
31
v. Court of Appeals, is instructional on this point. Moreover, he
should be granted not only the current rentals but also all the rentals
in arrears. This is so even if the lessor himself did not appeal because
25
Toledo v. Pardo, 118 SCRA 566.
26
March 19, 1993, 220 SCRA 182.
27
Villamin v. Echiverri, 119 SCRA 266.
m
Ibid.
29
Within the same City of Municipality, See Sec. 5(c) BP 877; Liwanag v. CA,
121 SCRA 335.
30
P a s c u a v. Court of Appeals, G.R. No. 76851, March 19, 1990, 183 SCRA 262.
31
G.R. No. 118381, 26 October 1999.
722
APPENDIX A
as ruled by the Court, there have been instances when substantial

justice demands the giving of the proper reliefs. "Thus when
respondent stopped paying any rent at all, it gave petitioner good
ground for instituting ejectment proceedings. The Court reiterated
32
the ruling in T & C Development Corporation that if ever petitioner
took exception to the unilateral or illegal increase in rental rate, it
should not have completely stopped paying rent but should have
deposited the original rent amount with the judicial authorities or in
33
a bank in the name of, and with notice to, petitioner.
^ a l a Realty Services Corp. v. Banco Filipino, G.R. No. 137980, June 20, 2000.
723
INDEX OF CASES
A
Abacan, Jr. v. Northwestern University, G.R. No. 140777,
April 8, 2005 299, 301
Abad Santos v. Province of Tarlac, 38 Off. Gaz., 830 266
Abad v. Court of First Instance, 206 SCRA 567 (1992) 530
Abenjojar & Tana v. CA, G.R. No. 104133, 18 April 1995 34
Abig v. Constantino, - SCRA 299, May 31, 1961 282
Ablaza v. Sycip, 110 Phil. 4 (1960) 209
Aboitiz v. Cotabato Bus Co., 105 SCRA 88 9, 10
Abrin v. Campos, 203 SCRA 420 (1991) 530
ABS-CBN Broadcasting v. COMELEC, 360 Phil. 780 255
Abundo v. Judge Manio, Jr., 312 SCRA 19, August 6, 1999 146
Acab v. Court of Appeals, 241 SCRA 546 (1995) 561
Acain v. IAC, 155 SCRA 100, Oct. 27, 1987 283
Acance v. Court of Appeals, G.R. No. 159699,
March 18, 2005 301
Acharon v. Purisima, 13 SCRA 309, 311 (1965) 287
Acibo v. Macadaeg, 11 SCRA 446, J u n e 30, 1964 603
Acierto v. Laperal, 107 Phil. 1088, April 29, 1960 605
Aclon v. Court of Appeals, G.R. No. 106880,
August 20, 2002, 387 SCRA 415 442, 466
Acosta v. Alvendia, 93 SCRA 368 74
Acosta v. Flor, 5 Phil. 18 376
Acting Registrar of Land Titles and Deeds of Pasay
City v. RTC, Branch 57, Makati City,
184 SCRA 622 (1990) 358
Active Wood Products, Inc. v. IAC, G.R. No. 70144,
March 26, 1990, 183 SCRA 671. Molina v. Somes,
24 Phil. 49 140
Acuna, et al. v. Hon. Caluag, et al., 101 Phil. 446,
pril 30, 1957 165, 168
Adao v. Lorenzo, 316 SCRA 570 (1999) 146
Adlawan v. Intermediate Appellate Court, 170 SCRA 165,
Feb. 9, 1989 242, 250
724
INDEX OF CASES
Adlawan v. Torres, 233 SCRA 645 (1994) 10, 46

Administrative Circular No. 0-99, J u n e 25, 1999 94
Adolfo Maceda v. Court of Appeals, 176 SCRA 440 (1989) 577
Adorio v. Bersamin, 273 SCRA 217, June 10, 1997 621, 662
Advincula-Velasquez v. Court of Appeals,
G.R. No. 111387, J u n e 8, 2004, 431 SCRA 165 265
Aetna Life Insurance v. Haworth, 300 U.S. 227 238
Agag v. Alpha Financing Corp., G.R. No. 154826,
July 3, 2004 586
Agan, Jr. v. Philippine International Air
Terminals Co. (PIATCO), G.R. No. 155001,
J a n u a r y 21, 2004, 420 SCRA 575 353
Aggabao v. Gamboa, 116 SCRA 280 (1982) 315
Agilent Technologies v. Integrated Silicon Technology,
427 SCRA 593, April 14, 2004 300
Aguador v. Enerio, 37 SCRA 140 657
Aguasin v. Velasquez, 88 Phil. 357 209, 211
Aguilar v. Cabrera, 74 Phil. 666 500
Aguilar v. Tan, J u n e 30, 1970 294
Aguilon v. Bohol, 79 SCRA 482, October 20, 1977 496
Aguirre v. Dumlao, 158 SCRA 276 (1988) 384
Agustin v. Bacalan, 135 SCRA 340 577, 589
Agustin v. De la Fuente, 84 Phil. 515 (1949) 318
Akut v. CA, 113 SCRA 213 278
Akut v. Court of Appeals, 116 SCRA 214 (1982) 292
Alafriz v. Nable, 72 Phil. 278 266, 323
Alba v. Nitorreda, 254 SCRA 75 115
Albero v. de la Cruz, 98 SCRA 406 345
Alcantara v. Abbas, 9 SCRA 54, 58 (1963) 165, 168
Alcuaz v. PSBA, 161 SCRA 7 (1988) 612
Alfredo Arquelada v. Phil. Veterans Bank, 329 SCRA 536,
March 31, 2000 550
Alhambra Cigar and Cigarette Mfg. Co., Inc. v.
National Administrator of Regional Office No. 2,
14 SCRA 1019 72
Allado v. Diokno, G.R. No. 113630, May 5, 1994,
51 SCRA 91, 232 SCRA 192 290
Allied Broadcasting Center, Inc. v. Republic,
2 3 5
190 SCRA 782 (1990)
Allied Domecq Phil., Inc. v. Villon, G.R. No. 152264,
September 30, 2004, 439 SCRA 667 78, 134
725
REMEDIAL LAW
VOL. Ill
Allied Leasing Corporation v. Court of Appeals,

197 SCRA 71 (1991) 186, 350
Almazar v. Cenzon, G.R. No. 46188, May 28, 1988,
161 SCRA 545 119
Alvarez v. Lacson, 52 O.G. 4680, 99 Phil. 661 607
Alvaro v. Zapata, 118 SCRA 722 91
Alviar v. Pampolina, 84 Phil. 45 611
Alvir v. Vera, 130 SCRA 357 (1984) 505, 511, 540, 595
Alzate v. Aldana, 8 SCRA 219 330, 339
Alzate v. Aldana, G.R. No. L-18085,
May 31, 1963, 8 SCRA 219 329
Ambil, Jr. v. COMELEC, 344 SCRA 358 (2000) 255
Ambrosio v. Salvador, 87 SCRA 217 Ill
Anderson v. Reyes, 54 Phil. 944 450
Ang Bagong Bayani-OFW Labor Party v. COMELEC
(G.R. Nos. 147589 and 147613, 18 February 2003) 618
Ang Ping v. Regional Trial Court of Manila, Branch 40,
154 SCRA 77 (1987) 505, 507, 508, 574, 600
Ang v. Castro, 136 SCRA 453 (1985) 113, 623, 624
Angara v. Fedman Development Corporation, G.R. No.
156822, Oct. 18, 2004, 440 SCRA 467 264, 272, 275, 280
Angchangco, Jr. v. The Ombudsman, G.R. No. 122728,
February 13,1997, 268 SCRA 301 343, 344
Angel Jose Realty Corporation v. Galao, et al., 76 Phil. 201 628
Angela Estate, Inc. v. CFI of Negros Occidental,
24 SCRA 500, July 31, 1968 97
Angela G. De Quizon v. PNB, 85 Phil. 459 628
Angeles v. Gernale, A.M. No. P-996-1221, J u n e 19, 1997 622
Anglo-Fil Trading Corporation v. Lazaro,
124 SCRA 494, 525, September 2, 1983 666
Aniza v. Court of Appeals, 268 SCRA 640,
February 24, 1997 540
Ansaldo v. Tantuico, Jr., 188 SCRA 300, 303-304 (1990) 411
Ante v. Judge Pascua, 162 SCRA 780 (1988) 623
Antiquera v. Baluyot, G.R. No. L-3318, May 5, 1952,
91 Phil. 213 343, 346
Antonio v. Intermediate Appellate Court,
216 SCRA 214 (1992) 284
Apostol v. Court of Appeals, G.R. No. 125375,
June 17, 2004, 432 SCRA 351 497, 514
726
INDEX OF CASES
Apundar v. Andrin and Pilapil, 42 Phil. 356 521

Aquino v. Lontok, G.R. No. 84324, April 15, 1990,
184 SCRA 177 1 , 152, 153
4 8
Aquino v. Mariano, 129 SCRA 532 339, 340 345

Aquino v. NLRC, 226 SCRA 76 (1993) ' ' i
3 0
Aquino v. Socorro, 35 SCRA 373, 376 57, 58, 66

Arabay, Inc. v. Salvador, 82 SCRA 138 100,127
Arambulo v. Gungab, G.R. No. 156581, Sept. 30, 2005 ' 525
Araneta v. Gatmaitan, 101 Phil. 328 (1957) 80, 243
Araos v. Court of Appeals, 232 SCRA 770, J u n e 2, 1994 569, 589
Araza v. Reyes, 64 SCRA 347 (1975) 521
Arcaya v. Teleron, 57 SCRA 363 271
Arcega v. Court of Appeal, 275 SCRA 176, July 7, 1997 80, 83
Arcega v. Pecson, 78 Phil. 743, July 28, 1947 169
Arceta v. Mangrobang, 432 SCRA 136 (2004) 279, 280
Ardiente v. Provincial Sheriff, 436 SCRA 655,
August 17, 2004 459, 462
Arellano v. Floud, 238 SCRA 72 (1994) 18
Argana v. Republic of the Philippines, G.R. No. 147227,
November 19, 2004, 443 SCRA 184 275
Ariem v. delos Angeles, 49 SCRA 343 593
Armoganda v. Court of Appeals, 166 SCRA 203 (1988) 538
Arquelada v. Phil. Veterans Bank, 329 SCRA 536,
March 31, 2000 571
Arquiza v. Court of Appeals, G.R. No. 160479,
June 8, 2005 468
Arreza v. Diaz, Jr., 364 SCRA 88 (2001) 231, 232
Arroyo v. Vasquez, 42 Phil. 54 92
Arzaga v. Copias, 400 SCRA 148, March 2003 109
Asset Privatization Trust v. CA, 214 SCRA 400,
Oct. 1, 1992 152
Asset Privatization Trust v. Court of Appeals,
229 SCRA 627, February 3,1994 502, 513, 526, 574
Associated Labor Union v. Judge Borromeo,
166 SCRA 99, 29 September 1988 101, 148, 152
Association of Beverages Employees v. Figueras,
2 8 0
G.R. No. L-4813, May 28, 1952
Asuncion v. CA, 166 SCRA 55 (1988) 39, 45, 262
3 4 0
Asuncion v. De Yriarte, 28 Phil. 67
Asuncion v. Plan, 103 SCRA 181 593
1 1 2
Asutilla v. PNB, 141 SCRA 40
727
REMEDIAL LAW
VOL. Ill
ATO v. Gopucoga, G.R. No. 158563, June 30, 2005 390, 426
Atty. Celso D. Lavina v. Hon. Court of Appeals,
171 SCRA 691, April 10, 1989 150
Atty. Himiniano D. Silva v. Judge German G. Lee,
169 SCRA 512, Jan. 26,1989 622, 325
Aurillo, Jr. v. Rabi, G.R. No. 120014, November 26, 2002,
392 SCRA 595 319, 320
Austria v. Masaquel, 20 SCRA 1247 626
Auto Corp. Group and Autographies v. Court of Appeals,
G.R. No. 157553, 437 SCRA 678, September 8, 2004 85
Autocorp Group v. Court of Appeals, 437 SCRA 678 (2004) 468
Auyong Hian v. CA, 59 SCRA 110 (1974) 465
Avelosa v. CA, 265 SCRA 493, December 10, 1996 85
Avenue Arrastre v. Commissioner of Customs, 120 SCRA 878 ... 338
Ayog v. Cusi, Jr., 118 SCRA 492 593, 666
Azajar v. Ardales, 51 O.G. 5640 245
B
BA Finance Corporation v. CA, G.R. No. 61464,
May 28,1988,161 SCRA 608 59, 65
Bacalso v. Ramolete, 21 SCRA 519, 26 Oct. 1967 351
Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823 302
Bachrach Motor Co. v. Albert, 60 Phil. 308 199
Bachrach Motor Co. v. Bond and Union Guarantee Co.,
44 Phil. 378, 382 203
Bachrach Motor Co. v. Carangal, 68 Phil. 287 432
Bachrach Motor Co. v. Summers, 42 Phil. 3, 6 187, 435, 436
Bachrach Motor Co., Inc. v. Albert, 60 Phil. 308 200
Bacolod City Water District v. Labayan, G.R. No. 157494,
December 10, 2004, 446 SCRA 110 69, 152
Bacolod-Murcia Milling Co., Inc. v. Capitol
Subdivision, Inc. 17 SCRA 731, 737, July 26, 1966 98
Badillo v. Tayag, 400 SCRA 494, April 3, 2003 602
Baens v. Court of Appeals, 125 SCRA 634 589, 590
Bagalihog v. Fernandez, 198 SCRA 614 (1991) 192
Bagatsing v. Committee on Privatization,
246 SCRA 334 (1995) 333
Bagatsing v. Ramirez, 74 SCRA 306 (1976) 340
Baguio Citizens'Action, Inc. v. The City Council,
121 SCRA 376 248
728
INDEX OF CASES
Baja v. Judge Macandog, 158 SCRA 391, 29 Feb. 1988 679

Baker v. Carr, 369 U.S. 186, 7 L.Ed., 2d 633 (1962) 334
Bakewell v. Lloren, 12 SCRA 691 (1964) 661, 673
Balagtas Realty v. Romillo, 130 SCRA 415 (1982) 277^ 605
Balanon-Anicete v. Balanon, 402 SCRA 514,
April 30, 2003 504
Balantes v. Buena, 242 SCRA -, 14 March 1995 196
Balantes v. Ocampo III, 242 SCRA 327, 331,
March 14, 1995 28
Balasabas v. Aquilizan, 106 SCRA 502 677, 684
Balucanag v. Francisco, 122 SCRA 498 (1983) 554
Baiiares v. Flordeliza, 51 Phil. 786 344
Banayos v. Susana Realty, Inc., 71 SCRA 557,
J u n e 30, 1976 493, 500
Banco de Oro Savings and Mortgage Bank v.
Court of Appeals, 182 SCRA 464 (1990) 526, 527
Banco Espanol-Filipino v. Palanca, 37 Phil. 921,
928 (1918) 451, 485
Banco Filipino Savings and Mortgage Bank v. IAC,
142 SCRA 46, 48 468
Bandoy v. Court of Appeals, 175 SCRA 459 (1989) 549
Banez v. Court of Appeals, 59 SCRA 15 (1974) 520
Bank of P.I. v. Noblejas, 105 Phil. 418 434
Banzon v. Court of Appeals, 94 SCRA 454 572
Baranda v. Padios, 154 SCRA 720, 21 Oct. 1987 515
Barangay San Roque v. Heirs of Francisco Pastor,
334 SCRA 127, J u n e 20, 2000 409
Barba v. Court of Appeals, 376 SCRA 210,
February 6, 2002 546
Barba v. Court of Appeals, G.R. No. 1266638,
February 6, 2002, 216 SCRA 210 504
Barco v. Court of Appeals, Jan. 20, 2004, 420 SCRA 162 282
Barican v. Intermediate Appellate Court,
162 SCRA 358 (1988) 470, 471
Barrameda v. Sunga, G.R. No. 30535, 21 Sept. 1988 284
Barreto v. Avila, 230 SCRA 219 (1994) 622, 628
Basaya, Jr. v. Militante, 156 SCRA 299 (1987) 125
Bascon v. Court of Appeals, 422 SCRA 122 (2004) 311
Base v. Leviste, 99 SCRA 575 600, 606
BASECO v. PCGG, 150 SCRA 181, 182 (1987) 35
Bataclan v. Court of Appeals, 175 SCRA 764 (1989) 81, 95,154
729
REMEDIAL LAW
VOL. Ill
Batungbakal v. National Development Company,

93 Phil. 182 341
Bautista v. Gonzales, 78 Phil. 390 589
Bautista v. Sarmiento, 138 SCRA 587,
September 23, 1985 291, 294
Bayer Philippines, Inc. v. Agana, 63 SCRA 355 (1975) 126
Baylosis v. Chavez, 202 SCRA 405 345
Bayog v. Natino, 258 SCRA 378, July 5, 1996 190, 516, 581, 582
Bayview Hotel, Inc. v. Court of Appeals, 273
SCRA 540, June 17,1997 577, 581
Beautifont, Inc. v. Court of Appeals, 157 SCRA 481 307
Bel-Air Village Ass. v. CA, G.R. 76394 656
Bel-Air Village Ass. v. IAC, G.R. 74376 656
Bel-Air Village Subd. v. IAC, G.R. No. 82281,
Aug. 30, 1989,177 SCRA 87 656
Belen v. Court of Appeals, 160 SCRA 291 291
Belen, et al. v. Court of Appeals, 160 SCRA 291 (1988) 413
Belisle Investment and Finance Co., Inc. v. State
Investment House, Inc., 151 SCRA 630 14, 40
Beltran v. People's Homesite and Housing
Corporation, 29 SCRA 149 226, 227
BenaVidez v. Court of Appeals, G.R. No. 125848,
313 SCRA 714, September 6,1999 517
Benedicto v. Canada, 21 SCRA 1066 (1967) 629, 662
Benedicto v. Yulo, 26 Phil. 160, 166 445, 450
Benguet Consolidated, Inc. v. Republic, 143 SCRA 466 424
Benguet Corp. v. Cordillera Caraballo Missions, Inc.,
G.R. No. 155343, Sept. 2, 2005 525
Benguet Management Corporation v. Court of Appeals,
411 SCRA 347, September 18, 2003 76, 466
Bengzon v. Court of Appeals, 161 SCRA 745,
31 May 1988 70, 78, 81
Benitez v. IAC, Sept. 15, 1987, 154 SCRA 41 43, 45
Benitez v. Paredes, 52 Phil. 1, 14 331, 332
Bernabe v. Bolinas, et al., 18 SCRA 812 (1966) 329, 347
Bernardo v. Court of Appeals, 168 SCRA 439,
Dec. 14, 1988 143
BF Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990) 32, 33
Biglang-Awa v. Bacalla, 345 SCRA 562, Nov. 22, 2000 393, 399
Bilag-Rivera v. Lora, July 6, 1995 52
Binan v. Garcia 484
730
INDEX OF CASES
Bishop of Cebu v. Mangaron, 6 Phil. 286 494

Blanco v. Board of Medical Examiners, 46 Phil. 190 343
Board of Optometry v. Colet, 260 SCRA 104 \" '' " [ 238
m m m
Board of Optometry v. Court of Appeals,

260 SCRA 88 (1996) 236, 238
Bobis v. Provincial Sheriff of Camarines Norte, 121 SCRA 28 ... 127
Bohanan v. Court of Appeals, 256 SCRA 355 462
Boiser v. CA, 122 SCRA 945 299
Borbajo v. Hidden View Homeowners, Inc.,
G.R. No. 152440, J a n u a r y 31, 2005 92
Borja v. Judge Salcedo, 412 SCRA 110, September 26, 2003 146
Borrnasal, Jr. v. Montes, 280 SCRA 181, 6 October 1997 197
Borromeo v. Court of Appeals, 47 SCRA 67 621
Botona v. Court of Appeals, 398 SCRA 52,
February 21, 2003 282, 295
Boy v. Court of Appeals, G.R. No. 125088, April 14,
2004, 427 SCRA 196 512, 525, 586
BPI Family Savings Bank, Inc. v. Manikan,
G.R. No. 148789, July 16, 2003, 404 SCRA 373 327
BPI Family Savings Bank, Inc. v. Sps. Veloso,
436 SCRA 1, August 9, 2004 444
Breslin v. Luzon Stevedoring, 84 Phil. 618 342
Bristol Myers Squibb (Phils.), Inc. v. Viloria,
G.R. No. 148516, September 27, 2004 264
Brocka v. Enrile, 192 SCRA 183 (1990) 112, 115
Bruan v. The People of the Philippines, 431 SCRA 90,
June 4, 2004 664, 665
Buayan Cattle Co., Inc. v. Quintillan, 128 SCRA 276,
March 19, 1984 79, 80, 92, 93, 97, 149, 342
Buazon v. Court of Appeals, March 19, 1993,
220 SCRA 182 511
Buce v. Court of Appeals, 332 SCRA 151, May 12, 2000 537
Budget Investment and Financing, Inc. v. Mangoma,
2 1 1
153 SCRA 630
3 0 5
Bueno v. Ortiz, 23 SCRA 1151
Bugaring v. Espanol, 349 SCRA 687, January 19, 2001 618
Bugnay Construction and Development Corporation v.
Hon. Crispin C. Laron, 176 SCRA 240,
2 8 9 3 3 3
Aug. 10, 1989
Bulado v. Judge Navarro, G.R. No. 59442, 2 Feb. 1988 664
Bulilan v. COA, G.R. No. 130057, December 22, 1998 253
731
REMEDIAL LAW
VOL. Ill
Bureau Veritas v. Office of the President, G.R. No. 101678,

3 February 1992, 205 SCRA 705 133
Bustos v. Court of Appeals, 350 SCRA 155, January 24, 2001.... 603
Butuan Bay Wood Export Corporation v. Court
of Appeals, 97 SCRA 297, 305 299
Caballes v. Department of Agrarian Reform,

168 SCRA 247, 254, 5 December 1988 109
Cabanero v. Torres, 61 Phil. 522 (1935) 318, 320
Cabansag v. Fernandez, 102 Phil. 152 (1957) 643
Cabutin v. Amacio and Judge Polo, 170 SCRA 211,
Feb. 28, 1989 262
Cadirao v. Estenzo, 132 SCRA 93 290
Cagayan de Oro Landless Residents Association v.
Court of Appeals, 254 SCRA 221, 228 (1996) 82, 83, 97, 7
Cal and San Jose v. Roldan, 76 Phil. 445, 453 (1946) 166,167
Calderon v. IAC, 155 SCRA 531,
Nov. 11,1987 18, 42, 45, 58, 59, 65
Calderon v. McMicking, 10 Phil. 2621 689
Calderon v. Solicitor General, 215 SCRA 876 (1992)... 328, 335, 358
Calleja v. Judge Santelices, A.M. No. RTJ-99-1443,
March 14, 2000, 328 SCRA 61 137
Calo v. Roldan, 76 Phil. 445,
451-452. (1946) 1, 7, 9, 92, 96, 97, 169
Calo v. Tapucar, 88 SCRA 78 621
Caltex Filipino Managers and Supervisors Association
v. Court of Industrial Relations, 23 SCRA 492 339
Caltex v. Central Board of Assessment Appeals,
114 SCRA 296 315
Caltex v. Palomar, 18 SCRA 247, 29 September 1966 237, 240
Caluag v. Pecson, 82 Phil. 8, 13 (1948) 662
Calubayan v. Pascual, 21 SCRA 146,
Sept. 18,1967 500, 525, 526, 547
Calvo v. Zandueta and Ordonez, 49 Phil. 605 422, 424
Camarines Norte Electric Cooperative, Inc. v.
Court of Appeals, 345 SCRA 85, Nov. 20, 2000 411
Camarines Norte Electric Cooperative, Inc. v. Torres,
286 SCRA 666, 681 (1998) 82
Campo Assets Corporation v. Club X.O. Company,
328 SCRA 520, March 27, 2000 521
732
INDEX OF CASES
Campomanes v. Bartolome, 38 Phil. 808 460

Campos Assets Corp. v. Club XO Co., 328 SCRA 520,
March 27, 2000 520
Canaynay v. Sarmiento, 79 Phil. 36 (1947) 547, 548, 554
Caniza v. Court of Appeals, 268 SCRA 640,
February 24, 1997 502, 527
Caniza v. Court of Appeals, 335 Phil. 1107, 1115 (1997) 531
Canlas v. Court of Appeals, 164 SCRA 160, 8 August 1988 284
Canonizado v. Benitez, 127 SCRA 610 (1984) 34
Cantelang v. Medina, 91 SCRA 403 611
Capistrano v. Pefia, 78 Phil. 749 323
Capital Credit Dimension, Inc. v. Chua, 428 SCRA 259,
April 28, 2004 86, 470, 471, 473
Capitle v. De Gaban, G.R. No. 146890, J u n e 28, 2004 481
Capitol Medical Center, Inc. v. Court of Appeals,
178 SCRA 493, Oct. 13,1989 90, 91, 96, 97
Capuz v. Court of Appeals, 233 SCRA 472 279
Carag v. Warden of the Jail of Cagayan, 53 Phil. 85 620
Carandangv. Cabatuando, 53 SCRA 383, 390,
October 26, 1973 275
Carbungco v. Amparo, 83 Phil. 683 606
Carbungco v. Court of Appeals, G.R. No. 78265,
J a n u a r y 20,1990,181 SCRA 313 152
Caridad Estates v. Santero, 71 Phil. 114 546
Carino v. Capulong, 222 SCRA 593 (1993) 80, 83, 84
Carlos v. Court of Appeals, G.R. No. 109887,
268 SCRA 25, Feb. 10, 1997 555, 572
Carlos v. Hon. Angeles, G.R. No. 142907,
November 29, 2000, 346 SCRA 571 356
Carmelita Lingjap v. Animas, 34 SCRA 87 75
Caro v. Court of Appeals, 158 SCRA 270, 275 286
Carpio v. Macadaeg, 9 SCRA 552 10
Carson v. Judge Pantamosos, Jr., 180 SCRA 151,
December 15, 1989 296
Carter v. Commonwealth, 32 S.E. 780 656
Carvajal v. Court of Appeals, 112 SCRA 237 572
Case and Nantz v. Jugo, 77 Phil. 517 199, 200, 201, 202
Casilan v. Tomassi, G.R. No. L-16574,
February 28, 1964, 10 SCRA 261 548, 549, 552, 555
Castano v. Lobingier, 7 Phil. 91 72
Castillo v. Court of Appeals, 124 SCRA 808 605
733
REMEDIAL LAW
VOL. Ill
Castro Revilla v. Garduno, 53 Phil. 934 328

Castro v. Blaquera, 100 Phil. 981 (1957) Ill
Castueras v. Bayona, 106 Phil. 340, Oct. 16, 1959 605
Catapusan v. Court of Appeals, 332 Phil. 586,
264 SCRA 534, 537-538 479
Catholic Church v. Tarlac and Victoria, 9 Phil. 450 494
Catuira v. Court of Appeals, 172 SCRA 136 (1989) 262
Catungal v. Hao, 355 SCRA 29, March 22, 2001 569, 589, 603
Cease v. CA, 93 SCRA 483 484
CEIC v CA 6
Celendro v. Court of Appeals, 310 SCRA 835, July 20,1999 592
Ceniza v. Sebastian, 130 SCRA 295 619, 620
Central Azucarera de Tarlac v. De Leon, 56 Phil. 169 495
Central Bank of the Phils, v. The Court of Appeals,
Felipe Plaza Chua, G.R. No. L-41859,
March 8,1989,171 SCRA 49 280
Central Bank v. Cloribel, 44 SCRA 307 (1972) 303
Central Bank v. Court of Appeals, G.R. No. 81846,
March 10,1988,163 SCRA 482 156,157, 282
Central Mindanao University v. DARAB,
215 SCRA 86 (1992) 108
Cereno v. Dictado, 160 SCRA 759 (1988) Ill
Cereso v. Munoz, 52 O.G. 4609 604
Cesar v. Garrido, 53 Phil. 97 372, 373
Cetus Development, Inc. v. Court of Appeals,
176 SCRA 72 (1989) 554, 555
Chan v. Villanueva, 91 Phil. 913, April 30, 1952 (Unrep.) 200
Chanco v. Madrilejos, 9 Phil. 356 628
Chapman v. Ongto, 70 Phil. 305 433
Chartered Bank v. Imperial, 48 Phil. 931 433
Chavez v. PCGG, 299 SCRA 744 (1998) 344
Chavez v. PEA and AMARI Coastal Bay Development
Corp., 384 SCRA 152, July 9, 2002 344
Chemphil CEIC v. CA, G.R. Nos. 112438-39, 251 SCRA 286,
December 12, 1995 5, 32
Chemphil Import & Export Corporation v. Court
of Appeals, 251 SCRA 257, 288 6, 30, 33, 34
Chiao Liong Tan v. Court of Appeals, 228 SCRA 75 187
Chieng v. Tarn Ten, 21 SCRA 211 606
China Banking Corp. v. Spouses Ordinario,
399 SCRA 430, March 24, 2003 468, 470
734
INDEX OF CASES
China Banking Corporation v. Court of Appeals,

265 SCRA 327, Dec. 5, 1996 80, 85, 476
China Banking Corporation v. Oliver, G.R. No. 135796,
October 3, 2002, 390 SCRA 263 363
Ching v. Malaya, 153 SCRA 412 (1987) 502, 503, 504,
507, 544, 555
Chiquillo v. Asuncion, 83 SCRA 248 291
Chua Giok Ong v. Court of Appeals, 149 SCRA 115 (1987) 252
Chua Pua Hermanos v. Register of Deeds of
Batangas, 50 Phil. 670 32
Chua v. CA, G.R. No. 112948, April 18, 1997,
271 SCRA 546 306, 307
Chua v. Court of Appeals, 222 SCRA 85, May 17, 1993 192
Chua v. Court of Appeals, 271 SCRA 546,
April 18, 1997 570, 598, 600
Chua v. Court of Appeals, G.R. No. 150793,
November 19, 2004, 433 SCRA 259 308
Chua v. Court of Appeals, G.R. No. L-106573,
March 27, 1995, 60 SCAD 57, 242 SCRA 431, 744 570
Chua v. Santos, G.R. No. 132467, October 18, 2004,
440 SCRA 121 272, 273
Chunaco v. Hon. Quicho, 105 Phil. 1254,
J a n u a r y 30, 1959 169
Chung Federis v. Sunga, 134 SCRA 16 366
Churchill and Tait v. Rafferty, 32 Phil. 580 Ill
Cia. General de Tabacos v. Gauzon, 20 Phil. 261,
267-268 (1911) 164, 168
Citibank v. Court of Appeals, 304 SCRA 679,
March 17, 1999 174, 190, 194, 200, 201
Citizens Surety and Ins. Co. v. Melencio-Herrera,
38 SCRA 369 4
City Government of Quezon City v. Ericta, 122 SCRA 759 235
City of Davao v. De los Angeles, 77 SCRA 129 73
City of Mandaluyong v. Aguilar, G.R. No. 137152,
Jan. 29, 2001, 350 SCRA 4, 487 406, 407, 478
City of Manila v. Arellano Colleges, 85 Phil. 663 405
City of Manila v. Chinese Community, 40 Phil. 349 403, 404
City of Manila v. Corrales, 32 Phil. 85 416
City of Manila v. Court of Appeals, 149 SCRA 183 (1987) 602
City of Manila v. Estrada, 25 Phil. 208 414, 416
735
REMEDIAL LAW
VOL. Ill
City of Manila v. Ruymann, 37 Phil. 421 (1918) 399, 400

City of Manila v. Serrano, 359 SCRA 231,
June 20, 2001 316, 399, 407, 409
Ciudad Real and Development Corp. v.
Court of Appeals, 229 SCRA 71 (1994) 308
Civil Service Commission v. Asensi,
433 SCRA 342 (2004) 271
Clapano v. Gapultos, 132 SCRA 429 (1984) 466, 663
Claridad v. Santos, 120 SCRA 148 350
Claude Neon Lights v. Philippine Advertising Corp.,
57 Phil. 607 4,11
Clemente v. Municipal Board of Iloilo City, 98 Phil. 1011 391
Cleveland v. Martin, 218 III, 73, 75 NE 722 97
Climaco v. Macadaeg, 4 SCRA 930 96
CMS Investment and Management Corporation
v. IAC, 139 SCRA 75 (1985) 678
Co Chuan Seng v. CA, 128 SCRA 308 291
Co Tiac v. Natividad, 80 Phil. 127 498, 535
Co Tiamco v. Diaz, 75 Phil.
672, 685 (1946) 344, 523, 530, 531, 555, 556, 559, 570
Co v. Militar, January 29, 2004, 421 SCRA 503
Cochingyan v. Cloribel, 76 SCRA 394, 397 (1977) 167, 296
Cojuangco v. Villegas, 184 SCRA 374, April 17, 1990 119, 577
Collado v. Fernando, 161 SCRA 639 (1988) 285
Cometa v. IAC, 151 SCRA 563 (1987) 471
Commander Realty, Inc. v. Court of Appeals,
161 SCRA 264, 9 May 1988 497, 506, 536
Commission of Public Highways v. Burgos, 96 SCRA 831 417
Commissioner of Custom v. Cloribel, 77 SCRA 459 245
Commissioner of Customs v. Cloribel, 19 SCRA 234 92
Commissioner of Customs v. Court of Tax Appeals,
and Philippine Casino Operators Corporation,
G.R. No. 132929, March 27, 2000, 328 SCRA 822 285
Commissioner of Immigration v. Cloribel, 20 SCRA 1241 613
Commissioner of Public Highways v. San Diego,
31 SCRA 616 412
Commissioner Rufus B. Rodriquez v. Judge Rodolfo R.
Bonifacio, 344 SCRA 519, November 6, 2000 659, 660
Commodities Storage v. CA, G.R. No. 125008,
June 19, 1997, 274 SCRA 439 164, 166, 168, 173
736
INDEX OF CASES
Commodity Financing Co., Inc. v. Jimenez,

91 SCRA 57 14 1 >275
Commonwealth of the Philippines v. de Borja,
85 Phil. 51 405
Compania General de Tabacos v. Alhambra Cigar
and Cigarette Co., 33 Phil. 503 628
Compania General de Tabacos v. French, 39 Phil.
Reports 34 (1918) 327
Concepcion v. Court of Appeals, 274 SCRA 614,
J u n e 27, 1997 461
Concepcion v. Gonzales IV, 114 Phil. 1066 678
Concepcion v. Presiding Judge Br. V, CFI Bulacan,
119 SCRA 222 (1982) 516
Conde v. Rivera, 45 Phil. 650 341
Consculluela v. Court of Appeals 411
Consignado v. Court of Appeals, 207 SCRA 297 511
Consolidated Bank and Trust Corp. v. Hon. Capistrano,
159 SCRA 47, March 18,1988 630
Consolidated Bank and Trust Corp. v. IAC,
153 SCRA 591 58, 444
Consolidated Bank and Trust Corporation v. Intermediate
Appellate Court, 150 SCRA 591, 598 (1987) 32
Consolidated Bank v. IAC, 150 SCRA 591 (1987) 58, 443
Consolidated Plywood Industries, Inc. v. Breve,
163 SCRA 589 4
Construction Service of Australia Phils, v. Peralta,
179 SCRA 344 277
Converse Rubber Corporation v. Jacinto, Rubber,
97 SCRA 158 688
Cootauco v. Court of Appeals, SCRA 124, J u n e 16,1988 78
Coquia, et al. v. Baltazar, 85 Phil. 265 212
Cordero v. Mascardon, 132 SCRA 413 (1984) 293
Cordoba v. Labayen, 249 SCRA 172,
October 10, 1995 600, 603, 605
Cornejo v. Sec. of Justice, L-32818, June 23,1974,
57 SCRA 663 385, 387
Cornejo v. Tan, 85 Phil. 722 613
Corniff v. Cook, 95 Ga., 61, 51 Am. St. Rep. 55, 61 27
Corpus v. Court of Appeals, 98 SCRA 425 634
Corpuz v. Court of Appeals, 274 SCRA 275, 280,
5 3 3
June 19, 1997
737
REMEDIAL LAW
VOL. Ill
Corro v. Lising, 137 SCRA 545 302

Cortez v. Villaluz, 24 SCRA 146 313
Cortez-Estrada v. Samat, G.R. No. 154407,
February 14, 2005 69, 80, 85, 93
Costas v. Aldanese, 45 Phil. 345 331
Crawford v. Valley, R.R. Co., 25 Grat., 467 420
Crespo v. Mogul 345
Crisostomo v. Court of Appeals, 116 SCRA 188 566
Crisostomo v. Dumlao, G.R. No. 81898, 23 Feb. 1988 371
Crisostomo v. Endencia, 66 Phil. 1, 8 286
Cristobal v. Court of Appeals, 328 SCRA 256 462
Cristobal v. Melchor, 78 SCRA 175 387
Crouc v. Central Labor Council, 83 ALR 193 88
Cruz v. Burgos, 28 SCRA 977, July 30, 1969 603
Cruz v. CA, 194 SCRA 145, 152-153 287
Cruz v. Court of Appeals, 93 SCRA 619 574
Cruz v. Jugo, 77 Phil. 18 606
Cruz v. Sps. Torres, 316 SCRA 193, October 4, 1999 532
Cu Unjieng and Cu Unjieng v. Goddard, 58 Phil. 482 17
Cu Unjieng Hijos v. Mitchel, 58 Phil. 476 433, 656
Cua v. Lecaros, 161 SCRA 480 (1988) 666
Cuartero v. Court of Appeals, 212 SCRA 260 (1992) 13, 44
Cubar v. Mendoza, 120 SCRA 768 323
Cursino v. Bautista, 176 SCRA 65, August 7, 1989 554
Cutaran v. Department of Environment and
Natural Resources, represented by Sec. Victor O.
Ramos, 350 SCRA 697, J a n u a r y 31, 2001 240
Cuyegkeng v. Cruz, 108 Phil. 1147, July 26, 1960 372
D
D.C. Crystal, Inc. v. Laya, 170 SCRA 734, 28 Feb. 1989 110, 299
D.M. Consunji v. Esguerra, 260 SCRA 74 346, 347
D.M. Wenceslao and Associates v. Readycon Trading
and Construction Corp., G.R. No. 1541106,
433 SCRA 251, J u n e 29, 2004 66
D.P. Lub. Oil Marketing Center, Inc. v. Nicolas,
191 SCRA 423 47
Dagupan Electric Co. v. Pano, 95 SCRA 693 75
Dakudao v. Consolacion, 122 SCRA 877 (1983) 525, 526
Dalida v. Court of Appeals, 117 SCRA 480 546
738
INDEX OF CASES
Daniel Garcia v. Ernesto De Jesus and Cecilia David,

and the COMELEC, 206 SCRA 779, March 4,1992 352
Dante and Palomar v. Sison, 174 SCRA 517 (1989) 505, 507
51o|591
Dapar v. Biascan, G.R. No. 141889, September 27, 2004 480
DAR v. Cuenca, G.R. No. 151412, 439 SCRA 15 (2004) 103
Dario v. Mison, 176 SCRA 89, August 8, 1989 253, 281
Darwin v. Tokonaga, 197 SCRA 442 (1991) 119
Davao Light and Power Co. v. Court of Appeals,
204 SCRA 343 (1991) 5, 13, 42
Davao Timber Corporation v. Syhunliong,
G.R. 80683, 9 May 1988 688
David v. Ramos, G.R. No. L-4300, October 13, 1951 110
David v. Rivera, G.R. Nos. 139913 and 140159,
J a n u a r y 16, 2004, 420 SCRA 90 288, 324
Davis v. Murphy, 1947, 188, 229-231 683
Day v. RTC of Zamboanga City, Br. XIII, 191 SCRA 610 582, 584
Dayao v. Shell Co. of the Phil. Ltd., 97 SCRA 407 (1980).... 509, 609
DBP v. Canonoy, 35 SCRA 197, Sept. 30, 1970 500
DBP v. West Negros College, Inc., 429 SCRA 50,
May 21, 2004 440, 442, 443
DD Commendador Construction Corp. v. Sayo,
118 SCRA 590 290, 291, 307
De Borja v. Villadolid, 47 O.G. 2315 242
De Castro v. Delta Motor Sales Corp., 57 SCRA 344,
May 31, 1974 276
De Castro v. IAC 443
De Castro v. Intermediate Appellate Court,
165 SCRA 654, September 26, 1988 434, 440, 442
De Castro, Jr. v. Castaneda, 1 SCRA 1131,
1134-1135 (1961) 345, 347, 348
De Dios v. Jarencio, 76 SCRA 505 313
De Fiesta v. Llorente and Manila Railroad Co.,
25 Phil. 554 426
De Gracia v. San Jose, 94 Phil. 623 466
De Guia v. Guerrero, 234 SCRA 625 (1994) 680
De Guzman v. Court of Appeals, 271 SCRA 728,
April 18, 1997 500, 544
De Jesus v. Roxas, 212 SCRA 823 (1992) 353
De Joya v. CFI of Rizal, Pasay City Branch,
6 1 9
9 9 Phil. 907,916
739
REMEDIAL LAW
VOL. Ill
De la Cruz v. Court of Appeals, 133 SCRA
De la Fuente v. Jugo and Borromeo, 76 Phil. 262, 264 610

De la Liana v. Commission on Elections,
80 SCRA 525, 529, Dec. 9,1977 241
De la Paz v. Panis, 245 SCRA 242, 250 (1995) 269, 279
De La Riva v. Reynoso, 61 Phil. 734 434
De la Riva v. Salvador, 32 Phil. 277 181, 182
De la Rosa v. Carlos, G.R. No. 147549, 414 SCRA 226,
October 23, 2003 504, 509, 534, 538, 580, 582
De la Rosa v. Court of Appeals, G.R. No. 84164,
5 Sept. 1988 274
De la Santa v. Court of Appeals, 140 SCRA 44 (1985) 587
De Laureano v. Adil, 72 SCRA 148 595, 601, 603, 604
605, 607, 609
De Leon v. Court of Appeals and Inayan,
G.R. No. 96107, J u n e 19, 1995,
245 SCRA 166 495, 498, 515, 534
De Leon v. Del Rosario, 435 SCRA 232, July 26, 2004 480
De Leon v. Ibanez, 95 Phil. 119 439
De Leon v. Mabanag, 70 Phil. 202 112
De los Reyes v. CFI of Batangas, 55 Phil. 408 432
De los Reyes v. Hon. Bayona, 107 Phil. 49,
March 29, 1960 169
De Luna v. Court of Appeals, 212 SCRA 276,
August 6, 1992 511, 513, 518
De Mesa v. Court of Appeals, 231 SCRA 773 (1994).... 479, 482, 485
De Midgely v. Fernandos, 64 SCRA 31 630
De Rivera v. Halili, G.R. No. L-15159,
September 30,1963, 9 SCRA 59, 64 534
De Vera v. Court of Appeals, 260 SCRA 396,
August 7, 1996 561,570
De Vera v. Pineda, 213 SCRA 434 (1992) 275
De Vera v. Santos, 79 SCRA 72 297
De Villa v. Fabricante, 105 Phil. 672 433
De Wees 1948, 210 S.W., 2d, 145-147 683
Decano v. Edu, 79 SCRA 410 73
Degala v. Reyes, 87 Phil. 649 247
Dehesa v. Macalalag, 81 SCRA 543 (1978) 505, 602
Deiparine v. CA, 299 SCRA 668 (1998) 481
Del Castillo v. Aguinaldo, 212 SCRA 169 (1992) 530
740
INDEX OF CASES
Del Mundo v. Court of Appeals, 252 SCRA 432,

J a n . 29, 1996 5 8 6
Del Pozo v. Penaco, 167 SCRA 577 (1988) 273, 278, 284
Del Rosario v. Balagot, 166 SCRA 429, 18 Oct. 1988 ' .' 285
del Rosario v. Court of Appeals, 241 SCRA 519 (1995) 591
Del Rosario v. Jimenez, 8 SCRA 549 (1963) 507
Dela Cruz v. Febreo, 82 SCRA 379 '.. 91
Dela Riva v. Molina Salvador, 32 Phil. 278 177,180
Dela Rosa and Go Kee v. De Borja, 53 Phil. 995,
J a n . 30, 1929 181
Delaventures Resources, Inc. v. Cabatu,
327 SCRA 521 (2000), March 9, 2000 119,121,122
Delbros Hotel Corp. v. IAC, G.R. No. 72566,
April 12,1988,159 SCRA 533 149,150
Delgra v. Gonzales, 31 SCRA 237 (1970) 662
Delina v. Gallardo, 77 SCRA 286, 290 617
Delumen v. Republic, 94 Phil. 287 (1954) 238, 241
Demamay v. Court of Appeals, 186 SCRA 608 (1990) 507, 530
Department of Agrarian Reform and Adjudication
Board (DARAB) v. Court of Appeals,
78 SCAD 125, 266 SCRA 404, J a n u a r y 21, 1997 106
Depra v. Dumlao, 136 SCRA 475 595
Desa Enterprises v. Securities and Exchange
Commission, 117 SCRA 321 666
Desamito v. Cuyegkeng, 18 SCRA 1184 (1966) 506
Desbarats v. Vda. de Laureano, 18 SCRA 116 (1966) 543, 554
Descallar v. Court of Appeals,
224 SCRA 566 (1993) 169, 172, 173
Detective and Protective Bureau, Inc. v. Cloribel,
26 SCRA 255, Nov. 29, 1968 95, 97
Detective and Protective Bureau, Inc. v. Hidalgo,
63 Phil. 664 (1936) 95
Developer's Group of Companies, Inc. v. CA,
219 SCRA 715 (1993) 86, 303
Development Bank of the Philippines v. Aguirre,
4 6 3
364 SCRA 755, September 7, 2001
Development Bank of the Philippines v. Court of Appeals,
403 SCRA 460, June 10, 2003 458, 462, 464, 465
Development Bank of The Philippines v. Pingol,
420 SCRA 652, January 22, 2004 295
741
REMEDIAL LAW
VOL. Ill
Development Bank of the Philippines v. West

Negros College, Inc., G.R. No. 152359,
Oct. 28, 2002, 391 SCRA ?31 441
Development Bank of the Phils, v. CA, 344 SCRA 492,
October 30, 2000 79, 94
Deveza v. Montecillo, 27 SCRA 822, March 28, 1969 547, 555
Diaz v. Hon. Nietes, 110 Phil. 606, 610 (1960) 168
Diaz v. Menezona, 43 Phil. 472 447
Diaz v. Hon. Nietes, 110 Phil. 606,
December 31, 1960 173
Dikit v. Icasiano, 89 Phil. 44 495, 499, 552
Dillena v. Court of Appeals, G.R. No. 77660,
July 28, 1988, 163 SCRA 630 283, 291
Dimaculangan v. IAC, 170 SCRA 893 539
Dimayuga v. Fernandez, 43 Phil. 304 112, 322
Dionisio v. Court of First Instance, 124 SCRA 222 152
Dioquino v. Intermediate Appellate Court,
179 SCRA 163, November 7, 1989 536
Director of Bureau of Telecom v. Aligaen, 33 SCRA 368 73
Discanso v. Gatmaytan, 109 Phil. 916 (1960) 335
Distileria Limtuaco v. IAC, 157 SCRA 706 292
Divinagracia v. Court of Appeals, 104 SCRA 180 540
Divino v. Marcos, 4 SCRA 187 (1962) 571
Dizon v. Concina, 30 SCRA 897, December 27, 1969 524
Dizon v. Magsaysay, 302 SCRA 288 570
Dizon v. Valdez, 23 SCRA 200 54
Docena v. Lapesura, G.R. No. 140153, March 28, 2001,
355 SCRA 658 350
Dolarv. Sundiam, 38 SCRA 616 169
Domalanta v. COMELEC, 334 SCRA 555,
June 29, 2000 264, 289
Domingo v. Court of First Instance of Nueva Ecija,
77 Phil. 170 606
Dorado v. Virina, 34 Phil. 264 546
Doria v. Luna, 160 SCRA 312, April 15, 1988 291
Dorn v. Romillo, 139 SCRA 139 289
Drilon v. Court of Appeals, 270 SCRA 211,
March 20, 1997 288, 289, 290
Drilon v. Gaurana, 149 SCRA 342,
742
INDEX OF CASES
Du v. Stronghold Insurance Co., Inc., 433 SCRA 43

Dulay v. Carriaga, 123 SCRA 794 4-
Dulay v. Merrera, 5 SCRA 922 3-
Dulos v. Court of Appeals, 188 SCRA 413, August 7, 1990 2'
Dungog v. CA, 159 SCRA 145, March 25,1988 3
Dungog v. Court of Appeals, G.R. No. 139767,
August 5, 2003, 408 SCRA 268 3
Dunker v. Field and Tub Club, 92, R 502
Duque v. CFI of Manila, 13 SCRA 420,
March 26, 1965 166, 173,1
Duxerry v. Dahle, 81 NW 198-199 (1899)
Dy v. Court of Appeals, G.R. No. 121587, March 9, 1999 19
Dy Poco v. Commissioner of Immigration,
16 SCRA 615, March 31,1966 24
Dy v. Court of Appeals, 195 SCRA 585 (1991) 59
Dy v. Enage, 70 SCRA 96
E
E. Zaldivar v. Hon. Sandiganbayan and Hon. Raul M.
Gonzales, 166 SCRA 316 (1988) 64
Eastern Shipping Lines v. Court of Appeals,
373 SCRA 513, J a n u a r y 16, 2002 50
Ecjaus v. Court of Appeals, 187 SCRA 673 31
Edades v. Edades, 52 O.G. 5149 24
Edgar Agustilo v. CA, 364 SCRA 740, September 7, 2001 31
Eduarte v. Ramos, 238 SCRA 36, 40, November 9,1994
Eleuterio C. Perez v. Court of Appeals and the
People of the Philippines, 168 SCRA 236,
November 29,1988 3
Elipe v. Fabre, 241 SCRA 249, 253, February 13, 1995
Emilia v. Bado, 23 SCRA 183
Enage v. Martinez, 52 Phil. 896, 898 3
Encilla v. Magsaysay, 17 SCRA 125 3
Engineering Construction Incorporated v.
National Power Corporation, G.R. No. 34589,
June 29,1988,163 SCRA 9
Engineering Construction v. NPC, 163 SCRA 9
Engreso v. Dela Cruz, 401 SCRA 217, April 9, 2003 4
3
Enrile v. Salazar, 186 SCRA 213 (1990)
3
Enriquez v. Rivera, 90 SCRA 641
743
REMEDIAL LAW
VOL. Ill
Equitable Bank v. Ku, 355 SCRA 309, March 26, 2001 593
Erlanger and Galinger, Inc. v. Villamor, 98 Phil. 1003 208
Escario v. Regis, 31 Phil. 618 91
Escovilla v. CA, 179 SCRA 108, November 6, 1989 50
Escudero v. Dulay, 158 SCRA 69 (1988) 292
Eslaban, Jr. v. Clarita Onorio, G.R. No. 146062,
June 28, 2001 391,411,416
Espanol v. Chairman, Phil. Veterans Administration,
137 SCRA 316 (1985) 340
Espejo v. Malate, 120 SCRA 269 536
Estares v. Court of Appeals, G.R. No. 144755,
January 8, 2005 69, 70, 79, 89
Estate or Heirs of the Late Ex-Justice Jose B.L.
Reyes v. City of Manila, G.R. Nos. 132431 and 137146,
February 13, 2004 70, 391, 392, 393, 394, 407
Esteban Uy v. CA, 191 SCRA 275 (1990) 49
Estonina v. Court of Appeals, G.R. No. 111547,
Jan. 27, 1997, 266 SCRA 627 127
Estrada v. Sto. Domingo, 28 SCRA 891 (1969) 280
Eternal Gardens Memorial Parks Corp. v. IAC,
165 SCRA 439 226
Eulogio "Eugui" Lo Chua v. Court of Appeals,
356 SCRA 753, April 19, 2001 497, 571
European Resources and Technologies, Inc. v. Ingenieuburo
Birkhahn, G.R. No. 159581, July 26, 2004 97
Eusebio v. Aguas, 47 Phil. 567 91
Eusebio v. IAC, 144 SCRA 154 595
Evangelista v. Sepulveda, 121 SCRA 684 672
Ex parte Redmond, 132 So. 328, 159 Miss. 449 622
Export Processing Zone Authority v. Dulay,
149 SCRA 305 (1987) 397, 413, 414
F
F. Zandueta v. Sixto de la Costa, 66 Phil. Reports 615 386
Fabie v. Gutierrez David, 75 Phil. 536 340
Fabrica v. Court of Appeals, 146 SCRA 250 (1986) 479, 484
Fajardo v. Bautista, 232 SCRA 291,
298 (1994) 269, 283, 291, 292
FCI Employees and Workers Union v. Marcos,
39 SCRA 178 309
744
INDEX OF CASES
Federation of Free Workers v. Inciong, 208 SCRA 15 298

Fehr v. Court of Appeals, 293 SCRA 586 (1994) 504
Fehr v. Fehr, G.R. No. 152716, October 23, 2003,
414 SCRA 288 273, 274, 291, 295, 297
Felipe v. Teodoro, 46 Phil. 409 605
Felisilda v. Villanueva, 139 SCRA 432,
Oct. 29, 1985 589
Felizardo v. Court of Appeals, 233 SCRA 220,
July 15, 1994 281, 283, 599
Felizmena v. Galano, 131 SCRA 165 660
Feranil v. Arcilla, 88 SCRA 770, 776 (1992) 70, 530
Fernandez v. Bello, 107 Phil. 1140 (1960) 664
Fernandez v. The International Corporate Bank,
316 SCRA 326, October 7, 1999 , 187
Fernando v. Vasquez, 31 SCRA 288, J a n u a r y 30, 1970 276
Ferrer v. Court of Appeals, 274 SCRA 219, J u n e 19, 1997 561
Ferrer v. Villamor, 60 SCRA 106 516
Fery v. Municipality of Cabanatuan, 42 Phil. 28 426, 430
Fiestan v. CA, 185 SCRA 751 (1990) 465
Fige v. Court of Appeals, 223 SCRA 586 (1994) 503, 511
Filinvest Credit Corp. v. Court of Appeals,
248 SCRA 549, Sept. 27, 1995 186, 187, 188, 210, 436
Filinvest Credit Corp. v. Intermediate Appellate
Court, G.R. No. 65935, 30, Sept. 1988,
166 SCRA 155 266,316
Filinvest v. Relova, 117 SCRA 420 (1982) 10, 14, 45
Filipinas Investment Finance Corp. v. Ridad, 30 SCRA 564 188
Filipinas Marble Corp. v. IAC, 142 SCRA 182 102
Filipino Merchant Insurance v. IAC,
162 SCRA 669 (1988) 309, 339
Filoil Refinery Corp. v. Sayo, 100 SCRA 413 539
Filstream v. Court of Appeals, 284 SCRA 716,
731 (1998) 70, 391, 392, 393, 394, 407
First Global Realty and Development Corporation
v. Christopher San Agustin, G.R. No. 144499,
February 19, 2002, 377 SCRA 341 69
3 6 5
Flordelis v. Mar, 114 SCRA 41
Florendo, Jr. v. Coloma, 129 SCRA 304 (1984) 540
6 6 2
Flores v. Ruiz, 90 SCRA 428
3 1 6
Fores v. Miranda, 105 Phil. 266
745
REMEDIAL LAW
VOL. Ill
Foronda v. Guerrero, 436 SCRA 9, August 10, 2004 . 631

Fortich v. Corona, 289 SCRA 624 (1998) 265
Fortun v. Labang, G.R. No. L-38383,
May 27, 1981, 104 SCRA 607 112, 323
Fortune Corp. v. Court of Appeals, 229 SCRA 359 279, 280
Fortune Motors (Phils.), Inc. v. Metropolitan Bank
and Trust Company, 265 SCRA 71, 81 (1996) 462
Fortuno v. Palma, 156 SCRA 691 369, 373
Francel Realty v. Court of Appeals, 252 SCRA 127,
Jan. 22, 1996 517, 594
Francisco v. Rodriguez, 6 SCRA 443 165
Francisco v. Zandueta, 61 Phil. 752, 757 215
Franklin Baker Company of the Phils, v. Trajano,
157 SCRA 416, 423 (1988) 266
Freedom from Debt Coalition v. Energy Regulations
Commission, 432 SCRA 136 (2004) 267
Freeman v. SEC, 233 SCRA 735, July 7, 1994 265, 350
Fuentes v. Bautista, 53 SCRA 420 535, 605
Fuentes v. Leviste, 117 SCRA 958 658
G
G & S Transport Corporation v. CA, 382 SCRA 262,
May 28, 2002 133, 330
G.B., Inc. v. Sanchez, 98 Phil. 886 43
Gabrito v. Court of Appeals, 167 SCRA 771 (1988) 596
Gabutas v. Castellanes, 14 SCRA 376 341
Gachon v. Devera, Jr., 274 SCRA 540, J u n e 20, 1997 576
Gaerlan v. Martinez, 47 O.G. 3483 605
Galan Realty Corp. v. Arranz, 27, 237 SCRA 770,
October 1994 598
Galano v. Roxas, G.R. L-31241, Sept. 12, 1975,
67 SCRA 8 386
Galgala v. Benguet Consolidated, Inc., 177 SCRA
288 (1989) 505, 507, 508
Gallardo v. Moran, 14 SCRA 713 555
Gamboa v. Court of Appeals, 108 SCRA 9, 21 291, 374
Gamboa v. Judge Alfredo Cruz, G.R. No. 56291,
June 27,1988, 162 SCRA 642 266, 286
Gamboa v. Ruiz, 108 SCRA 9, 14 283, 314
Gamboa v. Teodoro, 91 Phil. 270 (1952) 377, 678, 684, 685
746
INDEX OF CASES
Gamboa's Incorporated v. Court of Appeals,

72 SCRA 131 (1976) 570, 6 0 8
Ganadin v. Ramos, 99 SCRA 613 513^ 5 1 7
Garbo v. CA, 129 SCRA 616 ' 4 8 4
Garces v. Court of Appeals, July 17, 1996,

259 SCRA 9 9 3 7 2
Garcia v. Burgos, 291 SCRA 546 (1998) 99, 101,133

Garcia v. Court of Appeals, 102 SCRA 597 417
Garcia v. Court of Appeals, 220 SCRA 264, March 22,
1993 502, 560, 565
Garcia v. HRET, 312 SCRA 358, 12 August 1999 289
Garcia v. Judge Ranada, 166 SCRA 9, 27 Sept. 1988 276
Garcia v. NLRC, G.R. No. 147427, February 7, 2005 312, 313
Garcia v. Perez, 99 SCRA 628 386
Gardones v. Delgado, 58 SCRA 58 666, 681
Gateway Electronics Corporation v. Land Bank
of the Philippines, 407 SCRA 454, July 30, 2003 89, 681
Gelmart Industries Phil., Inc. v. NLRC,
176 SCRA 295 (1989) 305
General v. De Venecia, 78 Phil. 780 7, 8
Genoblazo v. Court of Appeals, 174 SCRA 124 (1989) 95
Georg Grotjahn GMBH & Co. v. Isnani, 235 SCRA 216,
decided on August 10, 1994 124
Gerardo M. Gelle v. Judge Francisco Rojas, Sr.,
A.M. No. RTJ-03-2814, May 26, 2005 139
Geriales v. Court of Appeals, 218 SCRA 638 (1993) 290
German Machineries Corporation v. Endaya,
G.R. No. 156810, November 25, 2004, 444 SCRA 329 312
German Management and Services, Inc. v.
Court of Appeals, 177 SCRA 495, Sept. 14, 1989 518
Geronimo v. Ramos, 136 SCRA 435 657, 663
Gevaro Reyes Construction v. Court of Appeals,
1 0 1
234 SCRA 116 (1994)
Giani v. Ramirez, 54 Pacific Reporter 17
88
Gilchrist v. Cuddy, 29 Phil. 542
Gindoy v. Tapucar, 75 SCRA 3 571
1 4 7
Ginete v. CA, 296 SCRA 38 (1998)
Globe-Telecom v. Florendo-Flores, 390 SCRA 201 (2002) 313
GMCR, Inc. v. Bell Telecommunications Philippines,
Inc., G.R. No. 126496, April 30, 1997, 271 SCRA 790 343
747
REMEDIAL LAW
VOL. Ill
Go King v. Geronimo, 81 Phil. 445 593

Go v. Court of Appeals, 210 SCRA 661 (1992) 462
Go v. Judge Abrogar, A.M. RTJ-03-1759,
February 27, 2003, 398 SCRA 166 363
Gochan and Sons Realty Corp. v. Canada,
165 SCRA 207 (1988) 491
Gochangco v. Court of First Instance,
157 SCRA 40 (1988) 600
Gocheco Brothers, Inc. v. Ycasiano,
G.R. No. L-5999, March 20, 1954 329
Gold City Integrated Port Services, Inc. v. Intermediate
Appellate Court, 171 SCRA 579 (1989) 267
Gold Realty Co. v. Hartfood, 104 A 2d 365,
368-9 (Conn. 1954) 405
Golden Gate Realty Corp. v. IAC, 176 SCRA 72,
August 7, 1989 551
Golden Gate Realty Corp. v. IAC, 152 SCRA 684,
691 (1987) 563, 565
Golding v. Balabat, 36 Phil. 941 87, 628
Gomos v. Judge Adiong, A.M. No. RTJ-1863,
October 22, 2004 73
Gonzales v. Board of Pharmacy, 20 Phil. 367, 375 329
Gonzales v. Court of Appeals, 3 SCRA 465 302
Gonzales v. Salas, 49 Phil. 1 546
Gonzales v. Sec. Of Public Works, G.R. No. L-21988,
September 30,1966,18 SCRA 296 74
Gonzales, Jr. v. IAC, 131 SCRA 468, 474 303
Good Development Corp. v. Tutaan, 73 SCRA 189 435
Gordillo and Martinez v. Del Rosario, 39 Phil. 829 92
Gorospe v. Penaflorida, 101 Phil. 886 (1957) 112
Gotauco v. Registry of Deeds, 59 Phil. 756 21
Government of the Phil. Island v. El Ahorro
Insular, 59 Phil. 199 376
Government of the Philippine Islands v. Mercado 33
Government v. Phil. Sugar Estates Co.,
38 Phil. Reports 15 384
Government v. Mercado, 67 Phil. 409 32
Governor of P.I. v. Torralba Vda. de Santos,
61 Phil. 689 451
Government of P.I. v. Cajigas, 55 Phil. 667 444
748
INDEX OF CASES
Gozon v. De la Rosa, 77 Phil. 919 593

Gozon v. Vda. De Barrameda, 11 SCRA 376 590
Gravina v. Court of Appeals, March 19, 1993,
220 SCRA 178 459
Greater Balanga Dev's. Corp. v. Municipality of
Balanga, Dec. 27, 1994, 239 SCRA 436 389, 392
Grimalt v. Velasquez, 36 Phil. 936 445
Gruenberg v. Court of Appeals, 138 SCRA 471 6, 7
GSIS Employees Association v. Alvendia, et al.,
108 Phil. 505 242
GSIS v. Court of Appeals, 169 SCRA 244,
J a n u a r y 20, 1989 102, 473, 474
GSIS v. Court of Appeals, 266 SCRA 187,
J a n u a r y 11, 1997 473, 475
GSIS v. Florendo, 178 SCRA 76 (1989) 76, 80, 94, 95, 97, 148
GSIS v. The Court of First Instance of Iloilo,
185 SCRA 19, July 5, 1989 440
Guanio v. Fenandez, 55 Phil. 814, 821 329
Guanzon v. Monteclaros, 123 SCRA 185 290
Guballa v. Court of Appeals, 168 SCRA 518 (1988) 498
Guerrero v. Villamor, 179 SCRA 355,
November 15, 1989 617, 618, 619, 624, 625
Guerrerro v. Amores, 159 SCRA 334 536
Guevara v. CA, 124 SCRA 297 301
Guevarra Realty, Inc. v. Court of Appeals,
G.R. No. 57469, April 15, 1988, 160 SCRA 478 593
Guiao v. Figueroa, 94 Phil. 1018, 1021-1023 (1954) 345, 348
Guido v. Rural Progress Administration,
G.R. No. L-2089, 84 Phil. 847 405
Guimoc v. Rosales, G.R. No. 89982, Sept. 9, 1991,
201 SCRA 468 119, 121, 122
Guingona v. City Fiscal, G.R. No. L-60033,
April 4,1984, 128 SCRA 577 112, 113, 114
Gumiran v. Gumiran, 21 Phil. 174, 179 494, 523
Gutib v. Court of Appeals, 312 SCRA 365 (1999) 260, 313
Gutierrez v. Court of Appeals, 193 SCRA 437 119
Guzman v. Catolico, 65 Phil. 261, 262 6, 16, 17
Guzman v. Court of Appeals,
177 SCRA 604 (1989) 505, 507, 511, 596
Guzman v. Fabie, 1 Phil. 140 535
749
REMEDIAL LAW
VOL. Ill
H
H.B. Zachary v. Court of Appeals, 232 SCRA 329 (1994) 20
Hacbang v. Leyte Autobus Co., Inc., 8 SCRA 103 72
Hagad v. Hon. Gozo-Dadole, 66 SCAD 543,
251 SCRA 242, Dec. 12, 1995 114
Halili v. CIR, 140 SCRA 87 613, 683, 684
Halili v. Court of Industrial Relations, 136 SCRA 112,
April 30, 1985 612, 613, 617, 677, 685
Hanil Development Co. v. IAC, 144 SCRA 557 59, 63
Harden v. Director of Prisons, 81 Phil. 741, Oct. 22, 1948 682
Heashim v. Concepcion, 42 Phil. 696 220, 222
Hechanova v. CA, 145 SCRA 553 307
Heirs of Andres v. CFI of Nueva Ecija, 86 Phil. 571 17
Heirs of Eugenia Roxas v. IAC,
173 SCRA 581 (1989) 83, 84, 98, 318, 666
Heirs of Eugenia Roxas, Inc. v. IAC 322
Heirs of F. Guballa, Sr. v. Court of Appeals,
168 SCRA 518 (1988) 506
Heirs of Fausta Dimaculangan v. IAC, 170 SCRA 389 568
Heirs of Fernando Vinzons v. Court of Appeals
and Mena Edoria, 315 SCRA 541,
September 30, 1999 515
Heirs of Francisco Guballa, Sr. v. Court of Appeals,
168 SCRA 518 (1988) 574
Heirs of Ignacio Conti v. Court of Appeals,
300 SCRA 345, Dec. 21, 1998 478
Heirs of Lourdes Potenciano Padilla v. Court of Appeals,
G.R. No. 1472005, March 10, 2004 273, 285
Heirs of Manuel T. Suico v. Court of Appeals,
G.R. No. 120615, January 21, 1997, 266 SCRA 444 568
Heirs of Mayor Nemencio Galvez v. Court of Appeals,
255 SCRA 672, 689, March 29, 1996 295
Heirs of Pedro Atega v. Garilao, 357 SCRA 203,
April 20, 2001 298
Heirs of Pedro Laurora v. Sterling Technopark III,
G.R. No. 146815, 401 SCRA 181, April 9, 2003 498, 513
Heirs of Placido Miranda v. Court of Appeals,
255 SCRA 368, March 29, 1996 586
Heirs of Suico v. Court of Appeals, 266 SCRA 444,
January 21, 1997 559
750
INDEX OF CASES
Heirs of the Late Justice Jose B.L. Reyes v.

Court of Appeals, 338 SCRA 282 75
Heirs of Timoteo Moreno and Maria Rotea v.

Mactan-Cebu International Airport Authority,
413 SCRA 502 426
Heirs of Trinidad De Leon Vda. de Roxas v.
Court of Appeals, 422 SCRA 101,
February 5, 2004 618, 631
Hermogenes v. Amores, 111 SCRA 652 611
Hernandez v. Albano, 19 SCRA 95, J a n u a r y 25, 1967 112
Hernandez v. CA, 120 SCRA 756 484
Hernandez v. Magat, 137 SCRA 794 91
Hernandez v. Pefia, 86 Phil. 411, May 19, 1950 607
Herrera v. Barretto and Joaquin,
25 Phil. 245, 271 215, 271, 276, 365
Herrera v. Ballos, 374 SCRA 107, J a n u a r y 18, 2002 502
Hilado v. De la Costa, 83 Phil. 471 243
Hilario v. Court of Appeals, 260 SCRA 425, 429 513, 547, 586
Hipolito v. Court of Appeals,
230 SCRA 191, 204 (1994) 269, 298
Hipolito v. The City of Manila, 87 Phil. 180 329
Hollister v. Goodale, 8 Conn. 332, 21 Am. D e c , 674 27
Honorio v. Dunuan, 158 SCRA 515, March 9, 1988 482, 487
Hoskyns v. National City Bank of New York,
85 Phil. 201 242
Hualam Construction and Dev't Corp. v.
Court of Appeals, 214 SCRA 612 (1992) 599, 601, 604, 607
Huerta Alba Resort, Inc. v. Court of Appeals,
Syndicated Management Group, Inc.,
339 SCRA 534, September 1, 2000 441
Huibonhoa v. CA, 320 SCRA 625,
December 14, 1999 531, 532, 533, 542, 544
Hullam Construction and Development Corp. v.
Court of Appeals, 214 SCRA 612 292
Hutchinson Ports Philippines Limited v. SBMA,
339 SCRA 434, August 31, 2000 83, 85
I
4 6 8
Ibasco v. Caguioa, 143 SCRA 538
1 1 6
IBM v. NLRC, 198 SCRA 586 (1991)
751
REMEDIAL LAW
VOL. Ill
Icutanim v. Hernandez, 81 Phil. 161 280

IFC Service Leasing and Acceptance Corp. v.
Nera, 19 SCRA 181,185 467
Ignacio v. CFI of Bulacan, 42 SCRA 89 (1971) 516
Ignacio v. Guerrero, 150 SCRA 369 413
Igot v. Court of Appeals, 436 SCRA 668, August 12, 2004 669
Iligan Concrete Products v. Magadan, 157 SCRA 525 (1988) 262
In re Almacen, 31 SCRA 562 645
In re Antonio Quirino v. Director of Prisons,
76 Phil. 630 (1946) 661
In re Brillantes, 42 O.G. 59 645
In re Gomez, 43 Phil. 376 636
In re Gomez, 6 Phil. 647 656
In re Kelly, 35 Phil. 944, 945 613, 635
In re Lozano and Quevedo, 54 Phil. 801 635, 636
In re Pablo y Sen, et al. v. Republic of the Philippines,
G.R. No. L-6868, April 30, 1955 237
In re Quirino, 76 Phil. 630 636, 664
In re Sotto, 82 Phil. Reports 595 635
In re Subido, 81 Phil. 517 636
In re Teopel, 102 N.W. 369, 139 Minch. 85 656
In re Torres, 55 Phil. 799 636
In re Wenceslao Laureta, 149 SCRA 570 630
Indiana Aerospace University v. Commission on Higher
Education (CHED), 356 SCRA 367,
April 4, 2001 275, 286, 303
Inductivo v. Court of Appeals, 229 SCRA 380 (1994) 568
Industrial Power Sales v. Duma Sinsuat,
160 SCRA 19 (1988) 299
Ines v. Court of Appeals, 248 SCRA 312 316
Ingersoll v. Concepcion, 44 Phil. 243 433
Iiiigo v. Cabrera, 77 Phil. 653 604
Insular Life Assurance Co., Ltd. v. Social Security
Commission, 22 SCRA 1207 237
Insular Savings Bank v. Court of Appeals,
G.R. No. 123638, June 15, 2005 14, 39
Integrated Construction Services, Inc. and Engineering
Construction, Inc. v. Relova, 65 SCRA 638 (1975) 632
Inter-Asia Services Corp. (International) v. Court
of Appeals, 263 SCRA 408, 418 (1996) 537
752
INDEX OF CASES
International Corporate Bank v. IAC, G.R. No. 69560,

J u n e 30, 1988, 163 SCRA 296 .' 5 5 7
Intestate Estate of Carmen de Luna v. Intermediate

Appellate Court, 170 SCRA 246, 13 Feb. 1989 267, 296
Investors' Finance Corp. v. Romeo Ebarle, Hon. Hose L.
Castigador, 163 SCRA 60, J u n e 29, 1988 209
Ipapo v. IAC, 147 SCRA 342 (1987) 574
Isabelo, Jr. v. Perpetual Help College of Rizal,
227 SCRA 591 (1993) 337
Isidro v. Court of Appeals, 228 SCRA 503 (1994) 502, 503, 515
Islamic Da' Wah Council of the Philippines v.
Court of Appeals, 178 SCRA 178, Sept. 29,1989 306, 309
Ituriaga v. COMELEC, 136 SCRA 247, 248 373
J
J.M. Tuason and Co., Inc. v. Land Tenure
Administration, 33 SCRA 882 390
Jaca v. Davao Lumber Company, 113 SCRA 107 297, 315
Jacinto v. Director of Lands, 49 Phil. 853 424
Jacobs v. Court of Appeals, 194 SCRA (1990) 468
Jaime L. Co v. Judge Demetrio D. Calimag, Jr.,
334 SCRA 20, J u n e 20, 2000 147
Jakihaca v. Aquino, 181 SCRA 67,
January 12, 1990 542, 547, 575
Jalbuena de Leon v. Court of Appeals, 245 SCRA 166,
June 19, 1995 496
Jamandre v. Luzon Surety, 124 SCRA 761 203
Jamer v. NLRC. 278 SCRA 632 (1997) 310
Jardine Manila Finance, Inc. v. Court of Appeals,
G.R. No. 55272, April 10, 1989, 171 SCRA 636 7, 16, 17
Javelosa v. CA, G.R. No. 124292, 265 SCRA 493,
December 10,1996 469, 497, 503, 514, 530, 531,
532,542,557,573,574
Jennifer Abrahan v. NLRC, 353 SCRA 739, March 6, 2001 304
Jimenez v. Roa, 39 SCRA 329 (1971) 241, 246
Jones v. Howard, 99 Ga., 451, 59 Am. St. Rep. 231 27
Jopillo, Jr. v. Court of Appeals, G.R. No. 76026,
167 SCRA 247, November 9, 1988 40, 46, 277
6 5 3
Jose Sangalang v. IAC, 177 SCRA 87 (1989)
Jose v. Zulueta, et al., 2 SCRA 574, May 31, 1961 293, 294
753
REMEDIAL LAW
VOL. Ill
Joseph v. Villaluz, 89 SCRA 324 309

Joven v. Court of Appeals,
212 SCRA 700 (1992) 468, 498, 511, 518
Juarez v. Court of Appeals, 214 SCRA 475 (1992) 498
Judith v. Abragan, 66 SCRA 600 (1975) 506, 572
Julieta V. Esquerra v. Court of Appeals and Sureste
Properties, Inc., G.R. No. 119310, February 3, 1997 295
Justiniani v. Castillo, 162 SCRA 378 (1988) 112,113
K
K.O. Glass Construction Co., Inc. v. Valenzuela,
116 SCRA 563 6 , 1 6 , 1 8 , 40
Kaisahan ng mga Magsasaka sa La Campana,
et al. v. Sarmiento, 133 SCRA 220 101,119,120
Kant Kwong v. PCGG, 156 SCRA 222, 232 (1987) 343
Kapalaran Bus Line v. Coronado, 176 SCRA 792 316
Kapisanan, etc. v. MRR Co., 88 SCRA 616 331
Kaw v. Judge Anunciacion, 242 SCRA 1, March 1, 1995 599
Kilosbayan v. Morato, November 16, 1995,
G.R. No. 118910, 246 SCRA 540 333, 334
Knecht v. CA, 228 SCRA 1 (1993) 92
Knecht v. CA, 290 SCRA 223, May 20,1998 395
L
La Campana Food Products, Inc. v. Court of Appeals,
223 SCRA 151 (1993) 359
La Granja, Inc. v. Samson, 58 Phil. 378 16
La Tondena Distilleria, Inc. v. Court of Appeals,
209 SCRA 553 (1992) 200, 206
La Urbana v. Belando, 54 Phil. 930, and Anderson v.
Reyes, 54 Phil. 944 445, 450
Labastida v. Court of Appeals, 287 SCRA 662 570
Lacap v. Jouvet Ong Lee, 394 SCRA 1,
December 11, 2002 515
Lagunzad v. Gonzales, 92 SCRA 476 484
Lalican v. Vergara, G.R. No. 108619, July 31, 1997,
276 SCRA 518 267, 271, 275, 286
Lam v. Chua, G.R. No. 131286, March 18, 2004,
426 SCRA 29 219
754
INDEX OF CASES
Lamb v . Phipps, 2 2 Phil. 489 3 2 7 3 2 g
Landbank of the Phils, v. Court of Appeals,

409 SCRA 455, August 25, 2003 276
Lansang v. Court of Appeals, G.R. No. 76028,
v April 6, 1990, 84 SCRA 230 297, 298
Lanuza v. Mufioz, G.R. No. 147372, May 27, 2004,
429 SCRA 562 5 5 9 ) 5 6 8
Lao Lim v. Court of Appeals, 191 SCRA 150 (1990) ' 535
Lascano v. Universal Smelting Co., Inc.,
G.R. No. 46019, J u n e 8, 2004 350
Lasco v. UN Revolving Fund for Natural Resources
Exploration, 241 SCRA 681, 684 (1995) 288
Laureano v. Bormaheco, Inc., 351 SCRA 270,
February 6, 2001 468
Lavides v. Pre, G.R. No. 127830, Oct. 71, 2001 33
Lazatin v. Campos, 92 SCRA 250 282
Lazatin v. Twano, 2 SCRA 842 66
Ledesma v. Court of Appeals, 211 SCRA 753 (1992) 542
Ledesma v. Javellana, 121 SCRA 794 536
Ledesma v. Marcos, 9 Phil. 618 494
Ledesma v. Morales, 87 Phil. 199 245
Lee v. People, G.R. No. 159288, Oct. 19, 2004,
440 SCRA 662 264, 274
Lee Yick Hon. v. Collector of Customs, 41 Phil. 548 (1921) 662
Legar Management Realty v. Court of Appeals,
252 SCRA 335, J a n u a r y 24, 1996 560, 561
Legaspi v. Avendano, 79 SCRA 135. 314
Legaspi v. Civil Service Commission, 150 SCRA 530 344
Lemi v. Valencia, 26 SCRA 204 328, 329
Leonidas v. Supnet, 398 SCRA 38, Feb. 21, 2003 618, 659, 663
Leonor v. Court of Appeals, 256 SCRA 69,
April 2, 1996 295
Leopoldo Sy v. Court of Appeals, 200 SCRA 177,
5 0 7
Aug. 2, 1991
Lerum v. Cruz, 48 O.G. 1768 244
Lesaca v. Cuevas, 125 SCRA 384 561, 562, 563
7
Leung Ben v. O'Brien, 38 Phil. 182 > 266
Leviste v. Ramos, G.R. No. L-14769,
1 6 9
Nov. 29, 1960, 119 Phil. 190
9
Levy Hermanos v. Lacson, 71 Phil. 94 2
755
REMEDIAL LAW
VOL. Ill
Lhuillier v. Court of Appeals, 348 SCRA 620,

December 19, 2000 537
Lianga Bay Logging Co., Inc. v. Court of Appeals,
157 SCRA 357 (1988) 73, 307
Liberty Insurance Corporation v. Court of Appeals,
222 SCRA 37 (1993) 44, 288, 303
Light Rail Transit Authority v. Court of Appeals,
444 SCRA 125, G.R. Nos. 139275-76 and
1409949, November 25, 2004 79, 80
Lim Cay v. Del, 55 Phil. 692 495
Lim Chi v. Garcia, 28 SCRA 735 543
Lim Kieh Tong v. Court of Appeals, 195 SCRA 398 (1991) 538
Lim Se v. Argel, 70 SCRA 379 619
Lim Si v. Lim, 98 Phil. 868 (1956) 506
Lim v. Court of Appeals, 222 SCRA 279 344
Lim v. Republic, 37 SCRA 783 240
Lim v. Sabarre, 24 SCRA 76 (1968) 322
Limpin, et al. v. Intermediate Appellate Court,
G.R. No. 70987, 29 Sept. 1988,
166 SCRA 88 439, 440, 441, 493
Lina v. Court of Appeals, 135 SCRA 637, 511 (1983) 277
Lingad v. Macadaeg, 63 O.G. 6395 275
Lino Brocka v. J u a n Ponce Enrile,
192 SCRA 183, Dec. 10, 1990 113, 114
Lipata v. Court of Appeals, 194 SCRA 214 (1991) 561
Lipata v. Tutaan, 209 Phil. 719 (1983),
124 SCRA 877 677, 678, 684, 685
Litton Mills, Inc. v. Galleon Trader, Inc.,
163 SCRA 489 (1988) 266
Liwayway Publications, Inc. v. Permanent Concrete
Workers Union, 108 SCRA 161 (1981) 118
Llaban v. Court of Appeals, 204 SCRA 887 285
Llamas v. Moscoso, 95 Phil. 599 (1954) 296
Llanto v. Mohammad Ali Dimaporo,
16 SCRA 599, March 31, 1966 329
Llido v. Marquez, 166 SCRA 61 (1988) 291
Lobete v. Sundiam, 123 SCRA 95 291
Locsin v. Climaco, 26 SCRA 816, J a n u a r y 31, 1969 97
Lopez v. City Judge, 18 SCRA 616, October 29, 1966 113
Lopez v. David, G.R. No. 152145, March 20, 2004,
426 SCRA 535 503
756
INDEX OF CASES
Lota v. Court of Appeals, 2 SCRA 715, June 30, 1961 372

Lozada v. Abragan, et al., 66 SCRA 600 (1975) 508
Lualhati v. Albert, 57 Phil. 86, 92 (1932) \\""" \ 632
m
Lucas Caparros v. Court of Appeals, 170 SCRA 758 (1989) 505

Lucena v. CA, 313 SCRA 47, August 25, 1999 \[ 462
Lucio Tan v. Court of Appeals, 200 SCRA 450 (1991) 186
Luna v. Carandang, 26 SCRA 306 495
Luna v. Court of Appeals 296
Luna v. Encarnacion, 91 Phil. 531 435, 436, 475
Luna v. Rodriguez, 36 Phil. 748 372
Luneta Motors v. Menendez, 7 SCRA 956 209
Lunsod v. Ortega, 46 Phil. 664 605
Luzon Steel v. Sia, 28 SCRA 58 54
Luzon Surety Co. v. de Marbella, 109 Phil. 734,
737, Sept. 30, 1960 175,180, 302
M
M and M Management Aids v. Court of Appeals,
130 SCRA 227 276
Ma. Divina Ortanez-Enderes v. CA, SEC,
321 SCRA 178, December 17, 1999 83, 84
Mabalot v. Madela, 121 SCRA 374 539
Mabanag v. Gallemore, 81 Phil. 254 12
Mabayo Farms, Inc. v. Court of Appeals,
August 1, 2002, 386 SCRA 110 69, 70
Macailing v. Andrada, 31 SCRA 126 72
Macandangdang v. CA, 108 SCRA 314 484
Maceda v. Court of Appeals, 176 SCRA 440 595
Machinery Engineering Supply v. CA, 96 Phil. 70 184, 186
Macias v. Lim, G.R. No. 139284, J u n e 4, 2004,
431 SCRA 21 309
Maddamu v. Judge of Municipal Court of Manila,
74 Phil. 230 (1943) 500, 530
Madrigal v. Lapanday Holding Corporation,
2 7 3
436 SCRA 123
Mafinco Trading Corporation v. Ople,
70 SCRA 139,158, March 25,1976 265, 322
Maggio v. Zeitz, 333 US 56, 921, Ed. 476, 68 CTI 401 683
Magno Adamos v. Bagasao, 162 SCRA 747 (1988) 307
2 4 3
Magtibay v. Alikpala, 6 SCRA 681
757
REMEDIAL LAW
VOL. Ill
Magtibay v. Garcia, 120 SCRA 370 338

Makapagal and Figueroa v. Santamaria, 55 Phil. 418 656
Makati Development Corp. v. Tanjuatco,
27 SCRA 401 (1969) 225
Malaga v. Penaflor, 213 SCRA 516 (1992) 101
Malayan Insurance v. Salas, 90 SCRA 252 59, 63
Malit v. People, 114 SCRA 348 289
Malolos v. Reyes, 111 Phil. 1113 619
Mamanteo, et al. v. Magumun, A.M. No. P-98-1264
(formerly OCA IPI No. 97-263-P, July 28, 1999,
311 SCRA 259) 197
Mamerto Maniquez Foundation, Inc. v. Pizarro,
448 SCRA 142 (2005) 468
Manaay v. Juico,
175 SCRA 343 (1989) 391, 398, 401, 407, 413, 414
Manalad v. de Vega, 120 SCRA 749 630, 679
Manalo v. Court of Appeals, 366 SCRA 572 (2001) 475
Manalo v. Gloria, 236 SCRA 130, 138-139 (1994) 331, 353
Manalo v. Sevilla, 24 Phil. 609 372
Mangoma v. Macadaeg, 90 Phil. 508 (1951) 214
Manila Electric Co. v. Barlis, G.R. No. 1114231,
June 29, 2004, 433 SCRA 11 267, 271, 280
Manila Electric Co. v. Del Rosario, 22 Phil. 433 91
Manila Electric Co.v. Court of Appeals,
187 SCRA 200, 205, July 4,1990 298
Manila Herald Publishing Co., Inc. v. Ramos,
88 Phil. 94 (1951) 49, 50
Manila International Airport Authority v. CA,
397 SCRA 348, February 14, 2003 99
Manila International Airport Authority v. Court of
Appeals, 397 SCRA 348, February 14, 2003 96, 98
Manila Railroad Co. v. Attorney General, 20 Phil. 523 495
Manila Railroad Co. v. Fabie, 17 Phil. 206 414, 416
Manila Railroad Co. v. Hacienda Benito,
Inc., 37 O.G. 1957 403
Manila Railroad Co. v. Mitchel, 49 Phil. 801 416
Manila Railroad Co. v. Mitchel, 50 Phil. 832 392, 395
Manila Railroad Co. v. Paredes, 31 Phil. 118 398
Manila Railroad Co. v. Velasquez,
32 Phil. 286 414, 416, 420, 421
Manila Surety and Fidelity v. Teodoro, 20 SCRA 463 112
758
INDEX OF CASES
Maninang v. Court of Appeals, 114 SCRA 478,

485, J u n e 19, 1982 296
Maningo v. Intermediate Appellate Court,
183 SCRA 691, March 26, 1990 58,159, 209
Manotok v. Legaspi, 77 Phil. 523 606
Manotok v. NHA, 150 SCRA 90, 93 416
Mantrade/FMMS v. Bacungan, 144 SCRA 510 336
Mantruste System v. CA, G.R. Nos. 86540-41,
November 6, 1989, 179 SCRA 136 109
Manuel Camacho v. Atty. Jovito A. Coresis, Jr.,
G.R. No. 134372, August 22, 2002, 387 SCRA 628 338
Manuel v. Escalante, 387 SCRA 239, August 13, 2002 599
Marahay v. Melicor, 181 SCRA 811, Feb. 6, 1990 293
Marcelo Steel Corp. v. Court of Appeals, 54 SCRA 89, 99 466
Marcelo v. De Guzman, 114 SCRA 657,
J u n e 29, 1982 295, 314, 344
Marcelo v. Tantuico, Jr., 142 SCRA 439 335
Mariategui v. Court of Appeals, 205 SCRA 337,
J a n u a r y 24, 1992 530
Mario Bengzon v. Bienvenido A. Tan, 103 Phil.
Reports 1154, May 23, 1958 622
Maritime Company of the Phils, v. Paredes,
19 SCRA 569, 578 261
Martinez v. Court of Appeals, 237 SCRA 575 274
Mascarina, et al. v. Eastern Quezon College,
169 SCRA 100, Nov. 29, 1988 291, 293
Mataas na Lupa Tenants'Association, Inc. v.
Dimayuga, 130 SCRA 30 (1984) 406
Mataguina Integrated Wood Products, Inc. v.
505-506 (1996) 70, 318, 322
Matalin Coconut Co., Inc. v. Municipal Council of
Malabang, Lanao del Sur, 143 SCRA 404 250
Matanguihan v. Tengco, 95 SCRA 478, 485 307
Matute v. Court of Appeals, 26 SCRA 798, 769 278, 302
Matute v. Macadaeg, 99 Phil. 340 280
Matutina v. PNB, G.R. No. 165570, Feb. 23, 2006 89
Mayuga v. Court of Appeals, 158 SCRA 325 (1988) 305
Mayuga v. Court of Appeals, 261 SCRA 309,
3 2 6
August 30,1996
MC Engineering v. CA, 380 SCRA 116 (2002) 66
759
REMEDIAL LAW
VOL. Ill
MCAA v. CA, 345 SCRA 126 (2000) ".. 426

Mead v. Argel, 115 SCRA 256 289
Medel v. Militante, 41 Phil. 526 (1921) 499, 521
Medina v. Castro-Bartolome, 116 SCRA 597 (1982) 125
Medina v. Court of Appeals, 225 SCRA 607 (1993) 561
Medina v. Greenfield Development Corporation,
G.R. No. 140228, November 19, 2004,
443 SCRA 150 79, 80, 93
Medina v. Valdellon, 63 SCRA 279,
March 25, 1975 494, 495, 496, 591
Mediran v. Villanueva, 37 Phil. 752 535
Meliton Zabat and Marylou Zabat v. CA,
338 SCRA 551, August 23, 2000 82
Mendoza v. Arellano, 36 Phil. 59, 63-64 (1917) 166, 168
Mendoza v. CA, 201 SCRA 343 (1991) 288
Mendoza v. Judge Ubiadas, 417 SCRA 183,
December 8, 2003 143,146
Mendoza v. SSS, 44 SCRA 373 (1972) 340
Meneses v. Court of Appeals, 237 SCRA 484 274
Meneses v. Dinglasan, 81 Phil. 470 Ill
Meralco Securities Industrial Corp. v. Central Board
of Assessment Appeals, 114 SCRA 260 260, 265
Meralco Securities v. Savellano, 117 SCRA 804 328, 338
Meralco v. Barlis, 433 SCRA 11 266, 267
Meralco v. Central Board of Assessment Appeals,
114 SCRA 260 315
Mercader v. DBP, G.R. No. 130699, May 12, 2000 557
Mercado v. Court of Appeals, 162 SCRA 75 (1988) 271, 272, 278
Mercado v. Ubay, G.R. No. L-35830, July 24, 1990 119
Mercado-Fehr v. Fehr, 414 SCRA 288, October 23, 2003 272
Mesina v. Intermediate Appellate Court,
145 SCRA 497 (1986) 226, 229
Metro Transit Organization, Inc. v. Court of Appeals,
392 SCRA 229, Nov. 19, 2002 299, 300, 304
Metropolitan Bank and Trust Company v. Wong,
G.R. No. 120859, June 26, 2001, 359 SCRA 608 461, 462
Metropolitan Water District v. De los Angeles,
55 Phil. 776 (1931) 400
Mialhe v. De Lencquesaing, 142 SCRA 694 3, 11
Mindanao Savings and Loan Association, Inc. v. Hon.
April 18, 1989 14, 42, 44, 45
760
INDEX OF CASES
Miranda v. Court of Appeals, G.R. No. 8 0 0 3 0 ,

Oct. 29, 1 9 8 9 45
Mirasol v. IAC, 1 6 2 SCRA 3 0 6 468
Mison v. Natividad, 2 1 3 SCRA 7 3 4 - 7 4 2 (1992) IQO
Modes v. Judge Maravilla, 57 SCAD 4 9 4 ,
2 3 9 SCRA 1 8 8 ( 1 9 9 4 ) 607
Moday v. Court of Appeals, G.R. No. 1 0 7 9 1 6 ,
Feb. 2 0 , 1 9 9 7 , 2 6 8 SCRA 5 8 6 389, 390, 392
Molave Motor Sales, Inc. v. Laron, 1 2 9 SCRA 4 8 5 (1984) 125
Molina v. Somes, 24 Phil. 49 181, 182
Monotok v. Guinto, 1 0 1 Phil. 3 8 3 .564
Montalban v. Canonoy, 38 SCRA 1, 8 359, 6 1 3
Montalbo v. Santamaria, 54 Phil. 9 5 5 328
Montanez v. Mendoza, 3 9 2 SCRA 5 4 1 , November 2 2 , 2 0 0 2 518
Monteblanco v. Hinigaran Sugar Plantation, 63 Phil. 7 9 7 495
Montenegro v. Montenegro, G.R. No. 1 5 6 8 2 9 , June 8, 2 0 0 4 ,
4 3 1 SCRA 4 1 5 6 1 3 , 615, 618, 629, 658, 659
Monteverde v. Nakata, 30 Phil. 6 0 8 181
Montevirgen v. Court of Appeals, 1 1 2 SCRA 6 4 1 4 3 2
Morada v. Caluag, 5 SCRA 1 1 2 8 335
Morato v. Court of Appeals, 4 3 6 SCRA 4 3 0 2 7 3
Moslem v. Soriano, 1 2 4 SCRA 190, August 17, 1 9 8 3 628
MSF Tire and Rubber, Inc. v. Court of Appeals and
Philtread Tire Workers' Union, 3 1 1 SCRA 784,
August 5, 1 9 9 9 118
Mujer v. Court of First Instance of Laguna, 35 O.G. 1 3 8 4 282
Mun. Council of Lemery v. Prov. Board of Batangas,
5 6 Phil. 2 6 0 , 2 6 8 265
MUNAR v. Court of Appeals, 2 3 8 SCRA 3 7 2 ,
Nov. 2 5 , 1 9 9 4 511
Municipality of Binan v. Court of Appeals,
2 1 9 SCRA 69 (1993) 306
Municipality of Binan v. Garcia, 1 8 0 SCRA 576,
Dec. 22, 1 9 8 9 408, 409, 4 8 4
Municipality of Carlota v. NAWASA, 12 SCRA 164 398
Municipality of San Narciso v. Hon. Antonio V. Mendez,
Sr., 57 SCAD 3 3 2 , 2 3 9 SCRA 11, December 6, 1994 370
Municipality of Tarlac v. Besa, 55 Phil. 4 2 3 416
Muiioz v. Court of Appeals,
2 1 4 SCRA 2 1 6 (1992) 499, 518, 524, 525, 527, 529, 535
761
REMEDIAL LAW
VOL. Ill
Murray v. La Guardia, 52 N.E. 884 406
N
Nacorda v. Yatco, 17 SCRA 920 (1966) 506
NAMARCO v. Cloribel, 22 SCRA 1038-1039,
March 13, 1968 90, 331
Namarco v. Cloribel, 23 SCRA 398 331
Napilan v. Intermediate Appellate Court,
183 SCRA 196, March 14,1990 484
National Bank v. Olutanga, 54 Phil. 346 31
National Federation of Labor v. NLRC,
283 SCRA 275, 284 311
National Housing Authority v. CA, Rose Marie
Alonzo-Legasto, 360 SCRA 533, July 5, 2001 299
National Housing Authority v. Heirs of Isidro
Guivelondo, 404 SCRA 389, June 19, 2003 400, 410
National Housing Authority v. Honorable Mauro T. Allarde,
G.R. No. 106593, November 16,1999, 318 SCRA 22 134
National Investment and Development Corp. v.
Judge Aquino, 163 SCRA 153, 30 J u n e 1988 167, 172
National Marketing v. Cloribel, 22 SCRA 1038,
March 13, 1968 90
National Mines & Allied Workers' Union v. Vera,
133 SCRA 259, 268, November 19, 1984 118, 120, 121, 2
National Power Corp. v. Jocson, 206 SCRA 520 397
National Power Corporation v. Judge Vera,
G.R. No. 83558, 27 Feb. 1989, 170 SCRA 721 80, 98, 101
National Union Growers Cooperative Marketing
Association, Inc. v. Lo, 435 SCRA 358, July 28, 2004 509
Nava v. Hofilena, 53 Phil. 738 180
Navarra v. Court of Appeals, 204 SCRA 850,
Dec. 17, 1991 447
Navarra v. Court of Appeals, Dec. 17,1991,
204 SCRA 850 450
Navarro v. Aguila, 66 Phil. 604 495
Navarro v. Lardizabal, 25 SCRA 370,
Nazareno v. Barnes, 136 SCRA 57 658, 660, 663
NBI v. Tuliao, A.M. No. P-96-1184, March 24, 1997 28, 196
762
INDEX OF CASES
NDC Guthrie Plantations, Inc. v. NLRC,

362 SCRA 416, August 9, 2001 1 1 6
NEAv. CA, 126, SCRA 394 303

NEA v. Mendoza, 138 SCRA 632 1 1 9
New York Marine Managers, Inc. v. Court of Appeals,

249 SCRA 416 270
Newman v. U.S., 238 U.S. 537, 545, 56 L. Ed. 513 369
Newsweek, Inc. v. IAC, 142 SCRA 171 260
NFL v. NLRC, 283 SCRA 275 (1997) 147
Ng Lit v. Llamas, 118 SCRA 215 605
Ngo Bun Tiong v. Judge Sayo, 163 SCRA 237,
J u n e 30, 1988 119
NHA v. CA, Rose Marie Alonzo-Legasto,
360 SCRA 533, July 5, 2001, 392 SCRA 229 300, 301
NHAv. Reyes, 123 SCRA 245 417
Nierras v. Dacuycuy, 181 SCRA 1 (1990) 287
Noble v. City of Manila, 67 Phil. 1, 6 391
Nocnoc v. Vera, 88 SCRA 529 100
Nocon v. Geronimo, 101 Phil. 735 271, 276
Nogoy v. Mendozas, Jr., 101 SCRA 203 505
Nonan v. Plan, 63 SCRA 261 (1975) 516
Nonato v. IAC, 140 SCRA 255 188
Normandy v. Duque, 29 SCRA 385, 391 (1969).... 164, 165, 168, 177
North Negros Sugar Company v. Hidalgo 80
Northwest Airlines v. Court of Appeals,
Feb. 9,1995, 241 SCRA 192 4,11
Nova v. Judge Sancho Dames, A.M. RTJ-00-1574,
March 28, 2001, 355 SCRA 483 119, 121, 123
Nueno v. Angeles, 76 Phil. 12 372
Nueva Vizcaya Chambers of Commerce v. Court
of Appeals, 97 SCRA 853 503
Nunal v. Commission on Audit, 169 SCRA 356,
Jan. 24, 1989 260
Nuval, v. Guray, 52 Phil. 645, 653, 654 373
O
Obana v. Court of Appealsl72 SCRA 866 (1989) 26
Obiles v. Republic of the Philippines,
G.R. No. L-5204, March 27, 1953 245
Obiles v. Republic, 92 Phil. 864 236, 238
763
REMEDIAL LAW
VOL. Ill
Ocampo v. Domalanta, 20 SCRA 1136, 1139 (1967) .-. 446

Ocampo v. Tirona, G.R. No. 147812, April 6, 2005 224, 225
October v. Ybanez, 111 SCRA 79 365
Odanso v NLRC, 431 SCRA 633, June 10, 2004 312
Odsique v. Court of Appeals, 233 SCRA 626 (1994) 526
Odsique v Court of Appeals, 233 SCRA 626, July 4, 1994 547
Olairiz v Sandiganbayan, 398 SCRA 732 (2003) 115.
Olalia v. Hizon, 196 SCRA 665 (1991) 99
Olanolan v. COMELEC, G.R. No. 165491,
March 31, 2005, 454 SCRA 807 267
Olegario v. Francisco, CA-G.R. No. SP 05816,
June 19, 1985 542
Olivarez v. Sandiganbayan, October 4, 1995,
248 SCRA 700 309
Oliveros v. Villaluz, 57 SCRA 163 (1974) 680
Olizon v. Court of Appeals, 236 SCRA 148 (1994) 461
Ollada v. Central Bank, 5 SCRA 297 (1962) 243, 246.
Olongapo Electric Light and Power Corporation v.
NPC, 149 SCRA 153, April 9, 1987 73
Omico Mining v. Vallejos, 63 SCRA 285, 300 278
Ona v. Cuevas, 83 SCRA 388 189
Onate v. Abrogar, 230 SCRA 181 (1994) 20, 44
Onate v. Abrogar, 240 SCRA 659 20, 21
Once v. Gonzales, 76 SCRA 258 (1977) 605
One Heart Sporting Club, Inc. v. CA, 108 SCRA 416 (1988) 340
Ong Lian v. Manila, G.R. No. 7453, May 11, 1956 242
Ong Sit v. Piccio, 78 Phil. 785 280
Ong v. Court of Appeals, 333 SCRA 189,
June 8, 2000 474
Ong v. Mazo, G.R. No. 145542, J u n e 4, 2004, 431 SCRA 56 280
Ong v. Parel, G.R. No. 143173, 355 SCRA 691,
March 28, 2001 523, 544
Ong v. People, 342 SCRA 372 (2000) 313
Ong v. Tating, 149 SCRA 205 127,130, 206
Oriental Media, Inc. v. CA, Dec. 6, 1995, G.R. No. 80127 284
Oriental v. Tambunting, G.R. No. L-2097, October 16,
1950, 87 Phil. 529 225
Orosa v. Court of Appeals, 193 SCRA39l728 J a n . 22*, 1 9 9 1 3 5 1
urosco v. Nepomuceno, 57 Phil. 1007 (1932-33) 50
r t l L t d P a r t
~ ^ \ . - * e r s h i p v . Court o f Appeals,
162 SCRA 165 (1988) 8 0 > 81
764
INDEX OF CASES
Ortigas and Co., Ltd. Partnership v. Court of Appeals 80

Ouano v. Court of Appeals, 398 SCRA 425,
March 4 , 2003 4 6 4
Ouano v. Court of Appeals, G.R. No. 129279,

March 4, 2003, 398 SCRA 525 65 4
Ozaeta v. Pecson and Bank of P.I., 93 Phil. 416 3 1 4
P
PAA v. Court of Appeals, 282 SCRA 448, December 4, 1997 283
Paat v. Court of Appeals, 266 SCRA 167,
J a n u a r y 19, 1997 190, 191, 196
Paat v. Hon. Court of Appeals, 282 SCRA 448,
G.R. No. 126560, Dec. 4, 1997 269
Pabico v. Ong Pauco, 43 Phil. 572 535
Pablo G. Quinon v. Sandiganbayan and PP,
271 SCRA 575, April 18, 1997 287
Pablo Y. Sen v. Republic, 96 Phil. 987 240
Pacete v. Cariaga, Jr., 231 SCRA 321 278
Pacheco v. CA, G.R. No. 124863, J u n e 19, 2000 327
Pacific Asia Overseas Shipping Corp. v. NLRC, G.R. No. 76595,
May 6, 1988,161 SCRA 122 557
Pacific Banking Corporation v. Court of Appeals,
October 13,1995, 249 SCRA 293 152
Pacific Merchandising Corp. v. Consolacion Insurance
& Surety Co., 73 SCRA 564 173
Pacis v. Commission on Elections, 29 SCRA 24, 27 57, 159, 160
Pacis v. Hon. Averia, 18 SCRA 907, 29 November 1966 197
Pacquing v. Court of Appeals, 115 SCRA 117 (1982 631
PACU v. Sec. of Education, 97 Phil. 806 (1955) 239
Pacuribot v. Judge Lim, A.M. No. RT J-97-1382,
July 17, 1997, 275 SCRA 543 625, 660, 677, 679
Paderanga v. Drilon, 196 SCRA 86, April 19, 1991 113
Padilla v. COMELEC, 137 SCRA 424 (1985) 254
PAFLU v. Cloribel, 27 SCRA 465 (1969) 116, 140
Pagkalinawan v. Gomez, 21 SCRA 1275 192
Pagkalinawan v. Rodas, 80 Phil. 281 225
3 1 4
Pajarillo v. WCC, 95 SCRA 582
3 0 2
Pajo v. Ago, 108 Phil. 905
Palanca v. IAC, 180 SCRA 199,
December 15, 1989 560, 561, 567
765
REMEDIAL LAW
VOL. Ill
Palay, Inc. v. Clave, 128 SCRA 638 (1983) . 520

PALEA v. PAL, 111 SCRA 215 328
Palileo v. Ruiz Castro, 85 Phil. 272 330
Palma Fernandez v. Dela Paz, 160 SCRA 751 370, 387
Pamintuan v. Tiglao, 53 Phil. 1 509
Pan Realty Corporation v. Court of Appeals,
G.R. No. 44726, 23 Nov. 1988, 167 SCRA 564 273, 278
Panadero v. Abragan, G.R. No. 158917,
424 SCRA 155, March 1, 2004 297
Pandes v. Teodoro, 94 Phil. 942, May 12, 1954 169
Paner v. Yatco, 87 Phil. 271 340
Panes v. Visayas State College of Agriculture,
G.R. No. 56219, November 27, 1966 397
Pangilinan v. Aguilar, 43 SCRA 136 (1972) 85, 469, 514,
525, 526, 530, 531, 556
Panlilio v. Victorio, 35 Phil. 706 203
Paper Industries Corporation of the Phils, v.
IAC, G.R. No. 71365, J u n e 18,1987, 151 SCRA 161 119
Paradero v. Abrogas, G.R. No. 158917, March 1, 2004,
424 SCRA 155 353
Paramount Insurance Corp. v. Luna, 148 SCRA 572 (1987) 280
Paras v. Judge Roura, June 29, 1988, 163 SCRA 1 152
Pardo de Tavera v. Encarnacion, 22 SCRA 632 (1968) 506
Paredes v. Civil Service Commission, 192 SCRA 84, 94,
December 4, 1990 296
Paredes-Garcia v. Court of Appeals, G.R. No. 120654,
September 11, 1996, 261 SCRA 693 631, 662, 680, 682
Pascua v. Simeon, 161 SCRA 01 (1988) 628
Pastor, Jr. v. CA, 122 SCRA 885 308, 309
Patagan v. Panis, 159 SCRA 507 (1988) 629
Patalinghug v. Court of Appeals, G.R. No. L-48667,
July 12, 1985, 137 SCRA 487 600, 607
Paterno v. Court of Appeals, G.R. No. 115763,
272 SCRA 770, May 29, 1997 568, 569
Patricio v. Sulpicio, 196 SCRA 146, April 11, 1991 619
Paul Hendrik P. Ticzon v. Video Post Manila,
Inc., 333 SCRA 472, J u n e 15, 2000 151
Paulino v. Court of Appeals, February 28, 1994 309
PCI Learning and Financing, Inc. v. Ko,
G.R. No. 148641, March 31, 2005 350
PCIB v. Escolin, et al., 56 SCRA 266, March 29, 1974 294
766
INDEX OF CASES
PCIB v. NAMAWU, 115 SCRA 837 81
Pefianco v. Moral, 322 SCRA 439, Jan. 19, 2000 304

Pelejo v. CA, 117 SCRA 666 "39, 91
Pena, Jr. v. Court of Appeals, 223 SCRA 744 (1994) 543
Penalosa v. Tuason, 22 Phil. 303 591
Penas, Jr. v. Court of Appeals, 233 SCRA 744 (1994) 527, 564
Pengson v. Ocampo, Jr., 360 SCRA 420,
J u n e 29, 2001 591
Penullar v. PNB, 120 SCRA 171 433
People v. Abalos, G.R. No. L-029039, Nov. 28, 1968 294
People v. Agasang, 60 Phil. 182 345
People v. Alarcon, 69 Phil. 265 (1939) 662, 677, 672, 684
People v. Albano, G.R. Nos. 45376-77,
26 July 1988, 163 SCRA 511 292
People v. Baladjay, 113 SCRA 284, 287 291
People v. Bans, 239 SCRA 48, 54-55 (1994) 282, 287, 288
People v. Castaneda, 165 SCRA 327 (1988) 292
People v. Court of Appeals, 101 SCRA 450 315
People v. Court of Appeals, 199 SCRA 539 (1991) 291
People v. Court of Appeals, 223 SCRA 479 (1993) 291
People v. Court of Appeals, G.R. No. 142051,
February 24, 2004, 423 SCRA 605 271, 275, 276, 280, 282
People v. Covacha, 52 Phil. Report 704 629, 630
People v. Cuaresma, 172 SCRA 415, 423-424 (1989) 353
People v. Francisco, 128 SCRA 110 (1984) 280
People v. Gagui, 2 SCRA 752 (1961) 631
People v. Gako, G.R. No. 135045, December 15, 2000,
348 SCRA 334 351
People v. Godoy, 243 SCRA 64, March 29, 1995 614, 617, 637,
639, 642, 645, 668, 671, 672, 691
People v. Hon. Valenzuela, 135 SCRA 712 630
People v. Maceda, 188 SCRA 532 (1990) 680
People v. Madaluyo, 1 SCRA 990 287
People v. Magallanes, Oct. 11, 1995,
G.R. No. 118013, 249 SCRA 212 350
People v. Manuel, 11 SCRA 618, July 3, 1964 296
72
People v. Mencias, 18 SCRA 807
People v. Navarro, 121 SCRA 707 613, 617, 618, 659
People v. Ong, 53 Phil. 544 345
People v. Orais, 65 Phil. 744 346
People v. Pareja, 189 SCRA 143, August 30, 1990 496
767
REMEDIAL LAW
VOL. Ill
People v. Rivera, 91 Phil. 354 680

People v. Salvador Alarcon, et al., 69 Phil. Reports 265 636
People v. Santos, 30 SCRA 100 345
People v. Torio, 118 SCRA 14 625
People v. Veneracion, 249 SCRA 244, October 12, 1995 314
People v. Venturanza, 98 Phil. 211 (1956) 661
People v. Vera, 65 Phil. 56, 82 (1937) 323, 633
People's Bank and Trust Company v. Syvel's,
Incorporated, 164 SCRA 247 10
People's Surety and Insurance v. Aragon, 7 SCRA 245 208, 209
Peran v. Presiding Judge, Br. II, CFI, Sorsogon,
125 SCRA 78 (1983) 525, 526
Perater v. Rosete, 129 SCRA 508 593
Peregrino v. Panis, 133 SCRA 72 3
Perez v. Hagonoy Rural Bank, 327 SCRA 588,
March 9, 2000 309
Perez v. Revilla, 46 Phil. 56 605
Perkins v. Dizon, 9 Phil. 186, 192 (1939) 485
Peroxide Phils. Corp. v. CA, 199 SCRA 882 (1991) 45, 302
Peza v. Alikpala, 160 SCRA 31, April 15, 1988 282, 291, 362
Pharma Industries, Inc. v. Pajarillaga,
100 SCRA 339, Oct. 17, 1980 500, 525, 536, 572, 573
Phil. Air Lines Employees Association v.
Phil. Air Lines, 111 SCRA 215 336
Phil. Bank of Commerce v. Hon. Macadaeg,
109 Phil. 981,986 263
Phil. British Assurance v. IAC, 150 SCRA 520, 54, 303
Phil. Commercial and Industrial Bank v. Escolin,
March 29, 1974 290
Phil. Global Communication, Inc. v. Relova, 100 SCRA 254 247
Phil. Holding Co. v. Valenzuela, 104 SCRA 401 606
Phil. National Bank v. Judge Aquino,
163 SCRA 153, 174 (1988) 167
Phil. National Bank v. Pineda, 197 SCRA 1 119
Phil. Oil Development Co., Inc. v. Go, 90 Phil. 692,
Jan. 23, 1952 412
Phil. Pacific v. Luna, 112 SCRA 604 100
Phil. Rabbit v. Galauran, 118 SCRA 664 275
Phil. Railroad Co. v. Solon, 13 Phil. 34 418, 424
Phil. Trust v. Hongkong and Shanghai Banking Corp.,
67 Phil. 205 176
768
INDEX OF CASES
Phil. Trust v. Santamaria, 53 Phil. 463 1 6 8
Phil. Virginia Tobacco Administration v. delos

Angeles, 164 SCRA 543 (1988) 149
7 0 j
Philec Workers Union v. Young, J a n u a r y 22, 1992 350

Philippine Airlines v. CA, 181 SCRA 557,
J a n u a r y 30, 1990 52
Philippine Association of Free Labor Union v. Emilio
Salas, G.R. No. L-39084, Feb. 23, 1988, 158 SCRA 53 124
Philippine Charter Insurance Corp. v. Court of Appeals,
179 SCRA 468, November 15,1989 58, 60, 61
Philippine Consumer Foundation, Inc. v.
NTC, 125 SCRA 845 300
Philippine Deposit Insurance Corporation v. Court
of Appeals, G.R. No. 126911, April 30, 2003,
402 SCRA 194 246
Philippine Feeds Milling v. Court of Appeals,
174 SCRA 108, J u n e 14,1989 504, 507
Philippine Holding Co. v. Valenzuela, 104 SCRA 401 600
Philippine Inter-Island Shipping Association of the
Philippines v. Court of Appeals, 266 SCRA 489,
J a n u a r y 22, 1997 671, 672
Philippine Nails and Wire Corporation v. Malayan
Insurance Company, Inc., 397 SCRA 431 296
Philippine National Bank v. Adil, 118 SCRA 110, 115 70, 467
Philippine National Bank v. CA, 118 SCRA 110,
November 2, 1982 85, 469
Philippine National Bank v. Court of Appeals,
374 SCRA 22 (2002) 470, 472
Philippine National Bank v. Court of Appeals,
275 SCRA 70 (1997) 470
Philippine National Bank v. Florendo, 206 SCRA 582,
589, February 26, 1992 295
Philippine National Bank v. Philippine Milling,
26 SCRA 212 266
Philippine National Bank v. Rabat, 344 SCRA 706,
4 5 9
November 15, 2000
Philippine National Bank v. Ritratto Group, Inc.,
78
362 SCRA 216, July 31, 2001
Philippine National Construction Corporation v.
National Labor Commission, July 7, 1995, 245 SCRA 66... 299
769
REMEDIAL LAW
VOL. Ill
Philippine Pacific Fishing Co. v. Luna, 112 SCRA 604 (1982) 119
Philippine Ports Authority v. CA, 253 SCRA 213 (1996) 134
Philippine School of Business Administration,
Quezon City v. Tblentino, G.R. No. 159277,
December 21, 2004, 447 SCRA 442 101, 134
Philippine Sinter Corporation and PHIVIDEC Industrial
Authority v. Cagayan Electric Power and Light
Co., Inc., 381 SCRA 582, April 25, 2002 80, 82,100
Philippine Surety and Insurance Co., Inc. v. Zabal,
21 SCRA 682 (1967) 26
Philippine Trust Co. v. Echaus Tan Siva,
52 Phil. 852 (1929) 451
Philippine Trust Company v. Santamaria, 53 Phil. 463 341
Philippine Veterans Affairs v. Segundo,
G.R. No. 51570, 15 Aug. 1988, 164 SCRA 365 340
Philippine Virginia Tobacco Administration v.
Delos Angeles, 164 SCRA 543 (1988) 97, 158
Philnabank Employees Association v. Estanislao,
227 SCRA 804 (1993) 235, 261, 266, 353
Phipps v. Rogue River Valley Canal Co., 7 ALR, 741 88
Pimentel, Jr. v. Majaducon, 407 SCRA 356, July 29, 2003 635
Pineda v. Lantin, 6 SCRA 757 (1962) 119
Pintor v. Tan, Jr., G.R. No. 84022, September 20, 1988 336, 339
Pio v. Marcos, 56 SCRA 726 92
Pioneer Ins. v. Camilon, 116 SCRA 190 55
Pioneer Insurance and Surety Corp. v. Hontanosas,
78 SCRA 447, 467 58, 267
Pitargue v. Sorilla, 92 Phil. 5, Sept. 17, 1952 498, 521, 536
Planas v. Gil, 67 Phil. 62 112
Planas v. Madrigal, 94 Phil. 754 (1954) 593
Planters Products, Inc. v. CA, 193 SCRA 563, 6 Feb. 1991 270
Plaridel Surety and Insurance v. De los Angeles,
24 SCRA 487 208
PNB v. Adil, 118 SCRA 110, 117 81, 92
PNB v. Esteban I. Vasquez, 71 Phil. 433 52
PNB v. Florendo, 206 SCRA 582 (1992) 294
PNB v. Nepomuceno Productions, Inc., 394 SCRA 405,
Dec. 27, 2002 462, 464
PNB v. Sanao Marketing Corp., G.R. No. 153951,
July 29, 2005 468, 469
770
INDEX OF CASES
Poblete v. Court of Appeals, 433 SCRA 39,

G.R. No. 128859, J u n e 29, 2004 624
Police Commission v. Bello, 37 SCRA 230 96
Pongos v. Hidalgo Enterprises, 47 O.G. 733 184
Posadas v. Ombudsman, 341 SCRA 388 (2000) 115
Praxedes Alvarez v. The Commonwealth of the
Philippines, 65 Phil. 302 224, 226, 229
President of PDIC v. Court of Appeals,
249 SCRA 293, October 13, 1995 634
Prime Security, Inc. v. NLRC, 220 SCRA 142 (1993) 291
Primicias v. Municipality of Urdaneta, 93 SCRA 462 113
Progressive Development Corporation v. Court of
Appeals, 301 SCRA 637, 22 J a n u a r y 1999 301, 303
Prov. Gov't, of Rizal v. Caro de Araullo, 58 Phil. 308 417
Province of Rizal v. San Diego, 105 Phil. 33 (1959) 389
Provincial Fiscal of Pampanga v. Reyes, 55 Phil. 90 341
Prudential Bank v. Gapultos, G.R. No. L-41835,
J a n . 19, 1990, 181 SCRA 159 119
Prudential Bank v. Hon. Castro, 155 SCRA 604,
November 12, 1987 6630
Puahay Lao v. Suarez, 22 SCRA 215 509
Pucan v. Bengzon, 155 SCRA 692 (1987) 120, 122, 124, 125
Pue v. Gonzales, 87 Phil. 81 (1950) 506
Pulido v. Court of Appeals, 122 SCRA 63, May 3, 1983 403, 405
Punongbayan v. Punongbayan, G.R. No. 156842,
Dec. 10, 2004, 446 SCRA 100 267
Purefoods Corp. v. NLRC,
171 SCRA 415 (1989) 266, 267, 299, 300
PVTAv. Delos Angeles, 164 SCRA 543, August 19, 1988 88, 91
Q
Quano v. Court of Appeals., 398 SCRA 525, March 4, 2003 465
Quasha v. Juan, 118 SCRA 505 (1982) 630
Querubin v. The Regional Cluster, G.R. No. 159299,
2 5 3
July 7 , 2004
Quimpo v. De la Victoria, 46 SCRA 139 500, 506
Quinio v. Court of Appeals, 355 SCRA 522,
July 12, 2000 682
Quinon v. Sandiganbayan, 271 SCRA 575,
2 8 7 2 8 8
April 18, 1997 >
771
REMEDIAL LAW
VOL. Ill
Quintano v. NLRC, G.R. No. 144517,

December 13, 2004, 446 SCRA 193 264
Quintero v. Martinez, 84 Phil. 496 339
Quismundo v. Court of Appeals, 201 SCRA 609 103
Quiso v. Sandiganbayan, 149 SCRA 108 346
R
R. Baylosis v. Hon. A. Chavez, 202 SCRA 405, Oct. 3, 1991 348
Racaza v. Susana Realty, Inc., 18 SCRA 1172 (1966) 527
Racaza v. Susana Realty, Inc., 18 SCRA 1172,
Dec. 22, 1966 500
Ralla v. Alcasid, 116 Phil. 622, October 30, 1962 166, 169, 173
Ramani v. Court of Appeals, 221 SCRA 582 (1993) 277
Ramirez v. Bleza, 106 SCRA 187 (1981) 506, 605
Ramirez v. Chit, 21 SCRA 1364, Dec. 26, 1967 .... 505, 508, 540, 590
Ramnani v. Court of Appeals, 221 SCRA 582 (1993) 271, 280
Ramos and Manalac v. Lopez, 89 Phil. 270 446
Ramos v. Court of Appeals, 163 SCRA 583, July 26, 1988 93
Ramos v. Court of Appeals, 45 SCRA 604 213, 214, 215
Ramos v. Ramos, 399 SCRA 43 (2003) 225
Ramos, Sr. v. Court of Appeals, 173 SCRA 550, May 24, 1989 81
Ranoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962 113
Ravanera v. Imperial, 93 SCRA 589 26
Raymundo v. PHHC, 114 SCRA 712 315
Re Almacen, 31 SCRA 562 636
Recto v. Castelo, 18 L.J. (1953) 113
Refugia v. Court of Appeals, 258 SCRA 211,
July 5, 1996 512, 525, 529, 575, 586
Regala v. CFI of Bataan, 77 Phil. 684 280
Regala v. De Guzman, 12 SCRA 204 309
Regatcho v. Cleto, 126 SCRA 342 371
Reiterato M. Cuartero v. Court of Appeals,
212 SCRA 200 1992 5
Rejuso v. Estipona, 72 SCRA 509 58, 130
Relampagos v. Cumba, G.R. No. 118861,
April 27,1995, 243 SCRA 690 352
Remata v. Javier, 36 Phil. 483 373
Remnan Enterprises v. CA, G.R. No. 107671,
February 26, 1997, 268 SCRA 688 615, 617, 663
Repacom v. Morfe, 120 SCRA 460 330
772
INDEX OF CASES
Repeque v. Aquilizan, 130 SCRA 258 677 684

Repol v. COMELEC, 428 SCRA 321 (2004) ' 255
Republic of Phils, v. Lara, 96 Phil. 170 417, 424
Republic of the Philippines v. CA, G.R. No. 110020,
September 25, 1998, 296 SCRA 171, 183 296
Republic of the Philippines v. De la Rosa,
232 SCRA 785, J u n e 6, 1994 371
Republic of the Philippines v. Express Telecommunications
Co., Inc., G.R. No. 147096, J a n u a r y 15, 2002,
373 SCRA 316 311
Republic of the Philippines v. La Orden de P.P.
Benedictinos de las Islas Filipinas, 1 SCRA 649 403, 404
Republic of the Philippines v. Philippine National
Bank, 1 SCRA 957 417
Republic of the Philippines v. Saludares,
327 SCRA 449, March 9, 2000 34, 35
Republic of the Philippines v. Sandiganbayan,
G.R. No. 141796, J u n e 15, 2005 299
Republic of the Philippines v. Sarabia,
G.R. No. 157847, August 25, 2005 398
Republic of the Philippines v. The Honorable Court
of Appeals and the Heirs of Luis Santos,
G.R. No. 146587, July 2, 2002,
383 SCRA 611 350, 390, 415, 428
Republic of the Philippines v. Villarama,
278 SCRA 736, September 5, 1997 79, 141
Republic of the Philippines v. Yaptinchay,
108 Phil. 1046 (1960) 416
Republic v. Bagtas, 6 SCRA 242 (1962) 540
Republic v. Baylosis, 96 Phil. 461 (1955) 389, 401
Republic v. Carmel Development, Inc.,
377 SCRA 459 (2002) 263, 264
Republic v. Court of Appeals, 75 SCAD 741,
263 SCRA 759, Oct. 30, 1996 108
Republic v. Court of Appeals, July 2, 2002 417
Republic v. Desierto, G.R. No. 131966, Sept. 23, 2002,
389 SCRA 452 350
5 7 2
Republic v. Diaz, 92 SCRA 535
Republic v. Intermediate Appellate Court,
4 X 3
159 SCRA 265 (1988)
4 1 7
Republic v. Juan, 92 SCRA 26
773
REMEDIAL LAW
VOL. Ill
Republic v. Judge Reyes, 155 SCRA 313 (1987),

161 SCRA 545 119
Republic v. Lara, 96 Phil. 170 416
Republic v. Silverio, 272 SCRA 280 (1997) 133
Republic v. Tayengco, 19 SCRA 898 (1967) 417, 424
Republic v. Vda. de Castellvi, 58 SCRA 336 398
Reyes v. Caneba, G.R. No. 82218, March 17,1988 132
Reyes v. COA, 305 SCRA 512, March 29, 1999 253
Reyes v. Court of Appeals, 38 SCRA 138 589
Reyes v. Ines-Luciano, G.R. No. L-48219,
88 SCRA 803, 809, Feb. 28, 1979 215, 216
Reyes v. Judge Camilon, 192 SCRA 445 (1990) 112
Reyes v. Lim, G.R. No. 1324241, August 11, 2003 1, 2
Reyes v. NHA, 395 SCRA 495,
Jan. 20, 2003 405, 406, 417, 426, 428
Reyes v. Regional Trial Court of Oriental Mindoro,
244 SCRA 41, May 5,1995 305
Reyes v. Sta. Maria, 91 SCRA 164, J u n e 29, 1979 493, 495, 517
Reyes v. Topacio, 44 Phil. 207 343
Reyes v. Villaflor, 2 SCRA 247 504
Reyes v. Zamora, 90 SCRA 92 328
Rheem of the Philippines v. Ferrer,
20 SCRA 441, 444 (1967) 632
Ricafort v. Gonzales, A.M. RTJ-0003001798,
September 7, 2004, 437 SCRA 549 600, 602, 606
Rickards v. Gonzales, 109 Phil. 423,
Sept. 26, 1960 432, 549, 552
Rivas v. Securities and Exchange Commission,
190 SCRA 295 (1990) 80, 81
Rivera v. CFI and Rupac, 61 Phil. 201 446
Rivera v. Florendo,
143 SCRA 278 (1986) 70, 89, 90, 91, 92, 561, 565, 567
Rivera v. Florendo, 144 SCRA 643 (1986) 81, 90, 97, 678, 686
Rivera v. Rivera, 405 SCRA 466, July 8, 2003 525, 526
Rizal Banking Corporation v. Judge Castro,
168 SCRA 49 (1988) 30,31
Robert Young v. Sulit, 162 SCRA 659 (1988) 305
Roberts, Jr. v. Court of Appeals, 254 SCRA 307,
March 5, 1996 346, 348
Robles v. San Jose, 52 O.G. 6193 549
Rodriguez v. CA, 261 SCRA 423 (1996) 126
774
INDEX OF CASES
Rodriguez v. Castelo, G.R. No. L-6374, August 1,1953 113

Rodriguez v. Court of Appeals, 245 SCRA 150, June 19, 1995 .... 282
Rodriguez v. Court of Appeals, 261 SCRA 423, 428 (1996) 126
Rodriguez v. De la Rosa, CA-G.R. SP-00542, Oct. 27, 1971 327
Rodriquez v. Bonifacio, A.M. No. RTJ-99-1510,
November 6, 2000, 344 SCRA 519 679
Rodulfa v. Alfonso, 76 Phil. 225, Feb. 28, 1946 81, 92, 93, 97
Roldan v. Area, 65 SCRA 336; Abiera v. CA, 45 SCRA 314 .99
Rom v. Cabadora, 28 SCRA 758, July 17, 1969 628
Roman Catholic Archbishop of Manila v. Court
of Appeals, 269 SCRA 145, March 3, 1997 571
Roman Catholic Church v. Familiar, 11 Phil. 310 523
Romeo v. Chief of Staff, AFP, 170 SCRA 408 (1989) 112
Romero v. Tan, 424 SCRA 108, Feb. 27, 2004 107, 108,109
Romero, et al. v. Court of Appeals, 147 SCRA 183 (1987) 103
Romualdez v. Sandiganbayan, 385 SCRA 436,
July 30, 2002 289
Romulo v. Yniguez, 141 SCRA 263 81
Roque v. Court of Appeals, 93 SCRA 540 22, 28, 314
Roque v. Intermediate Appellate Court,
165 SCRA 118 (1988) 479, 841
Rosales v. CFI, 154 SCRA 153 (1987) 506
Rosanna B. Barba v. Court of Appeals, 376 SCRA 210,
February 6, 2002 501, 531
Rosario Textile Miller, Inc. v. Court of Appeals,
409 SCRA 529 (2003) 161, 614, 615, 628, 675, 676
Rosete v. CA, 339 SCRA 193, August 29, 2000 285
Roxas v. Alcantara, 113 SCRA 21 559, 569
Roxas v. Buan, 167 SCRA 43, November 8, 1988 467
Roxas v. Court of Appeals, 391 SCRA 351,
Oct. 29, 2002 517, 527
Roxas v. Buan, 167 SCRA 43 (1988) 86, 470
Royeca v. Animas, 71 SCRA 1 626
Rualo v. Pitargue, G.R. No. 140224, January 21, 2005 70, 95, 96
Rualo v. Pitargue, G.R. No. 140284, July 21, 2005 80
Rubio v. Mariano, 52 SCRA 338 292
Ruiz v. Judge How, A.M. No. RTJ 1805,
October 14, 2004 619, 622
Ruiz, Jr. v. Court of Appeals, 200 SCRA 214 (1993) 293
Rural Bank of Oroquieta v. CA, 101 SCRA 5 447, 450
775
REMEDIAL LAW
VOL. Ill
Rural Bank of Sta. Ignacia v. Dimatulac,

G R No. 142015, April 29, 2003, 440 SCRA 742 498, 499
504, 512, 556, 557
Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960 113
S
S and A Gaisano, Inc. v. Hidalgo,
192 SCRA 224 (1990) 95
S.C. Johnson and Sons v. Court of Appeals,
188 SCRA 579 (1990) 277
Saavedra, Jr. v. Department of Justice, 44 SCAD 822,
Sept. 15, 1993, 226 SCRA 438 289
Sabalones v. CA, 230 SCRA 79, Feb. 14, 1994 70, 85
Sadikul Sahali v. COMELEC, 324 SCRA 510,
2 February 2000 289
Sagun v. PHHC, 162 SCRA 411,
June 22, 1988 303, 330
Salandanan v. Tizon, 62 SCRA 388 (1975) 516
Salas v. Adil, 90 SCRA 121 3, 7, 14, 15
Salgado v. Court of Appeals, 128 SCRA 396 15
Salazar v. Court of Appeals, 250 SCRA 305,
November 23, 1995 539
Salazar v. Salazar, L-5823, April 29, 1953 215, 216
Salcedo v. Hernandez, 61 Phil. 724 613, 619
Salcedo-Ortanez v. Court of Appeals,
235 SCRA 111 (1994) 283
Sales v. Securities and Exchange Commission,
169 SCRA 109, 13 Jan. 1989 80, 98
Salgado v. CA, 128 SCRA 395 6, 17, 45
Salgado v. Court of Appeals 6
Salinas v. Navarro, 126 SCRA 167, 172-173 (1983) 507, 510, 608
Salomon v. Mendoza, 14 SCRA 867 572
Salonga v. Pano, 134 SCRA 438, February 18, 1985 113
Salva v. Palacios, G.R. No. L-4247 140
Salvacion v. Central Bank of the Philippines,
278 SCRA 27, August 21, 1997 235
Salvadades v. Pajarillo, 78 Phil. 77 294
Salvador Campos y Cia v. del Rosario, 41 Phil. 45 266
Salvador v. Salamanca, 144 SCRA 276 94, 584, 609
776
INDEX OF CASES
Samad v. COMELEC, 43 SCAD 452,

224 SCRA 631 (1993) 372, 373
Samahan ng mga Manggagawa sa Azcarraga
Textile Market v. Court of Appeals, 165 SCRA 598 562
Samar Mining Co., Inc. v. Arnaldo, 2 SCRA 782 72
Samartino v. Raon, 338 SCRA 644, 674, July 3, 2002 514
Samson v. Andal, 89 Phil. 627, July 31, 1951 243
Samson v. Araneta, 64 Phil. 549 178
Samson v. Rivera, 428 SCRA 759, May 20, 2004 467
Samson v. Yatco, 1 SCRA 1145, 1150, April 28, 1961 216
San Andres v. Court of Appeals, 265 SCRA 368,
December 6, 1996 547, 549, 550
San J u a n v. Cuento, G.R. No. 45063, 15 April 1988,
160 SCRA 277 349
San J u a n v. Valenzuela, 117 SCRA 926 (1982) 213, 215
San Luis v. CA, 365 SCRA 279, September 13, 2001 350, 669
San Miguel Corp. v. NLRC, 304 SCRA 1 (1999) 115
San Miguel Corporation v. National Labor Relations
Commission, G.R. No. 80774, May 31, 1988,
161 SCRA 719 115, 125
San Miguel Corporation v. National Labor Relations
Commission, Second Division, Haw at Buklod ng
Manggagawa (IBM), 403 SCRA 418, J u n e 10, 2003 116
San Miguel Corporation v. Secretary of Labor,
64 SCRA 56, 60, May 16, 1975 265
San Pedro v. Court of Appeals, August 4, 1994,
235 SCRA 145 281
Sanchez v. CA, G.R. No. 108947, Sept. 29, 1977,
279 SCRA 647 295, 296
Sanchez v. Demetriou, 227 SCRA 643 345
Sanchez v. Zosa, 68 SCRA 171 606
Sanchez v. Zulueta, 68 Phil. 110 214
Sanga v. Zaballero and Santos, 59 Phil. 101 433
Sangalang v. IAC, G.R. No. 71169 656
Sangalang v. People and Avendia, 109 Phil. 1140 113
Sanson v. Barrios, 63 Phil. 198, 204 329
Santi v. Court of Appeals, November 8, 1993,
5 3
227 SCRA 541 6
Santiago v. Anunciacion, 184 SCRA 118 (1990) 658, 688
Santiago v. Commissioner of Immigration, 7 SCRA 21,
2 4 1
Jan. 31, 1963
777
REMEDIAL LAW
VOL. Ill
Santiago v. Cuaresma, 217 SCRA 633, 652 (1993) 354

Santiago v. Guadiz, 206 SCRA 590 (1992) 599
Santiago v. Sheriff of Manila, 77 Phil. 740 592
Santiago v. Vasquez, 217 SCRA (1993) 353, 362
Santos v. Aquino, 94 Phil. 65 243, 246
Santos v. Aquino, Jr., G.R. Nos. 86181-82,
205 SCRA 127, 133 (1992) 33
Santos v. Bayhon, 199 SCRA 521, July 23,1991 118,120
Santos v. Bernabe, 54 Phil. 19 9
Santos v. Court of Appeals, 95 Phil. 360 58
Santos v. Court of Appeals, 214 SCRA 162 (1992) 530
Santos v. Court of Appeals, G.R. No. 141947,
July 5, 2001, 360 SCRA 521 351
Santos v. Director of Lands, 22 Phil. 424 392
Santos v. Santos, 342 SCRA 793, October 12, 2000 481
Santos v. Vivas, 96 Phil. 538, 540 549
Sarasola v. Trinidad, 40 Phil. 252 110
Sarmiento v. Court of Appeals, 320 Phil. 146 (1995) 531
Sarmiento v. Court of Appeals, G.R. No. 116192,
250 SCRA 108, November 16, 1995 503, 525, 527
Sarona v. Villegas, 131 Phil. 365 525, 528,
Sarona v. Villegas, G.R. No. L-22984,
22 SCRA 1257, March 27,1968 495, 500, 527, 531
Saturnino L. Villegas v. Victoriano de la Cruz,
15 SCRA 720 385
Saulog v. Court of Appeals, 262 SCRA 51,
September 18, 1996 80, 86, 469
Saure v. Pentecostes, 104 SCRA 642 606
Sayson v. Judge Zerna, A.M. No. RTJ-99-150,
362 SCRA 409, August 9, 2001 146
Seagull Ship Management and Transport, Inc.
and Dominion Insurance Corporation,
333 SCRA 336, June 8, 2000 299, 300
Searth Commodities Corp. v. Court of Appeals,
207 SCRA 622 (1992) 70, 80, 81, 95, 102
Seastar Marine Services, Inc. v. Bui An, Jr.,
G.R. No. 142609, November 25, 2004 262
Seavan Carrier v. GTI Sportswear, 132 SCRA 308 293
Sebastian Cosculluela v. Court of Appeals,
164 SCRA 393 (1988) 406, 407, 411, 412
Sebastian v. Morales, 397 SCRA 549, Feb. 17, 2003 273
778
INDEX OF CASES
Sebastian v. Valino, 224 SCRA 256, 259, July 5, 1993 28

Segarra v. Maronilla, 108 Phil. 1086 628
Seivert v. CA, 168 SCRA 692 (1988) "I 13, 21
Sembrano v. Ramirez, 166 SCRA 30, 28 Sept. 1988 316
Semira v. Court of Appeals, 230 SCRA 577 (1994) 513, 588, 592
Sen Po Marketing Corp. v. Court of Appeals,
212 SCRA 154(1992) 505
Sena v. Manila Railroad Co., 42 Phil. 102 406
Seno v. Pestolante, 103 Phil. 414 435
Serafin v. Cruz, 58 Phil. 611 374
Seven Brothers Shipping Corp. v. Court of Appeals,
July 19,1995, 246 SCRA 33 292
Sevilla v. Buissan, 118 SCRA 598 611
Shell Co. of the Philippines, Ltd. v. Municipality of
Sipocot, 105 Phil. 1063, March 20, 1959 (Unrep.) 250
Shell v. Sipocot, G.R. No. 12680, 20 March 1959 243
Shin and Chung Hwa Kyoon v. Court of Appeals,
351 SCRA 257, Feb. 6, 2001 498
Siapian v. Court of Appeals, 327 SCRA 11,
March 1,2000 551, 565
Siari Valley Estates, Inc. v. Lucasan, 109 Phil. 294 26
Siena Realty Corporation v. Gal-lang,
G.R. No. 145169, May 13, 2004, 428 SCRA 422, 350
Silva v. Court of Appeals, 88 Phil. 599 606
Silverio v. CA, 141 SCRA 527 (1986) 268, 280, 305, 306
Silverio v. Court of Appeals, 407 SCRA 240,
July 24, 2003 558, 599, 600
Silvestre v. Torres, 57 Phil. 885, 893 (1933) 107, 267
Sim v. Ofiana, 135 SCRA 124 371
Singapore Airlines v. Pano, 122 SCRA 671 (1983) 125
Singson v. Babida, 79 SCRA 111 605
Singson v. Republic, 22 SCRA 353, Jan. 30, 1968 241
Sison v. C. Caoibes, Jr., 429 SCRA 258 (2004) 679
Sison v. Judge F. Caoibes, Jr., 429 SCRA 258,
6 2 1
May 27, 2004
Sison v. Pangramuyen, 84 SCRA 364 386, 387
6 X 9
Sison v. Sandejas, 105 Phil. 1279
4 0
Siva v. Reyes, 83 Phil. 416 I
Slade Perkins v. Director of Prisons, 58 Phil. 271 613
SMI Development Corporation v. Republic of the
Philippines, G.R. No. 137537, Jan. 28, 2000,
2 9 6 3 9 3
323 SCRA 862 >
779
REMEDIAL LAW
VOL. Ill
So Chu v. Nepomuceno, 29 Phil. 208 179

Social Security System v. Bayona, 5 SCRA 126,
130-131 (1962) 88
Socorro v. Aquino, 35 SCRA 373, 376 159
Solanda Enterprises, Inc. v. Court of Appeals
and Luis Manlutac, 305 SCRA 645, April 14, 1999 509
Solidum v. Hernandez, 7 SCRA 320, Feb. 28, 1963 322, 323
Solis v. Court of Appeals, 198 SCRA 267, June 19, 1991 497
Somes v. Government of Phil. Islands, 62 Phil. 432 434
Songco v. CFI of Rizal, 127 SCRA 320 468
Soriano v. Atienza, 171 SCRA 284 (1989) 267
Soriano v. Court of Appeals, G.R. No. 128938 ;
June 4, 2004, 431 SCRA 1 662, 664

Soriano v. Enriquez, 24 Phil. 584 433, 434
Sotto v. COMELEC, 76 Phil. 518 252, 309
Special Servicing Corp. v. Centro La Paz,
121 SCRA 748 120, 131
Spouses Balanon-Anicte v. Balanon 505
Spouses Clutario v. Court of Appeals, 216 SCRA 341 (1992) 555
Spouses dela Cruz v. Asian and Industrial Finance
Corp., Sept 20, 1991 188
Spouses Estanislao v. Court of Appeals, 362 SCRA 229,
July 31, 2001 442
Spouses Guda v. Leyres, G.R. No. 143675, J u n e 9, 2003 570
Spouses Lopez v. Sarabia, G.R. No. 140357,
September 24, 2004 439 SCRA 35 596
Spouses Pahang v. Vestil, G.R. No. 148595, July 12, 2004,
434 SCRA 139 475
Spouses Refugia v. Court of Appeals, 258 SCRA 211,
July 5, 1996 588
Spouses Roman and Amelita T. Cruz v. Sps. Alfredo &
Melba Torres, 316 SCRA 193, October 4, 1999 544
Spouses Rosales v. Spouses Suba, 408 SCRA 664,
August 12, 2003 432, 440, 441
Spouses Virgilio and Josie Jimenez v. Patricia, Inc.,
340 SCRA 525, Sept. 18, 2000 599
Sps. Arcega v. CA, 275 SCRA 176, July 7, 1997 85, 86, 469
Sps. Emetrio and Lolita de Guzman v. Hon.
Court of Appeals, 177 SCRA 604, Sept. 15, 1989 574
Sps. Reynaldo Alcaraz v. Tangga-an, 401 SCRA 84,
April 9, 2003 514
780
INDEX OF CASES
Sps. Vaca v. CA and Associated Bank, 234 SCRA 146,

July 14, 1994 4 7 2
St. Martin Funeral Homes v. NLRC, 295 SCRA 494 (1998) 310
St. Peter Memorial Park, Inc. v. Campos,
63 SCRA 180, March 21,1975 291, 295, 297
Sta. Ana v. Sunga, 54 SCRA 36, 44 (1973) ' 608
Sta. Maria v. Lopez, 31 SCRA 637 341
State Investment House, Inc. v. Citibank N.A.,
203 SCRA 9 4,11
State Investment House, Inc. v. Court of Appeals,
163 SCRA 799 9
State v. Shepherd, 76 S.W. 79, 640, 641, 643
Strong v. Castro, 137 SCRA 322 324
Stronghold Insurance v. Court of Appeals,
G.R. No. 84979, Nov. 6, 1989 58
Stronghold Insurance v. Court of Appeals,
May 5, 1992, 208 SCRA 336 66
Suanes v. Chief Accountant of Senate, 81 Phil. 818 338
Subic Bay Metropolitan Authority v. Universal
International Group of Taiwan, 340 SCRA 359,
Sept. 14, 2000 520
Subido v. Gopengco, 27 SCRA 455 96
Suico v. Court of Appeals, 266 SCRA 444,
J a n u a r y 21, 1997 596
Sulit v. Court of Appeals, G.R. No. 119247,
February 17, 1997, 268 SCRA 441 85, 448, 467, 470, 471
Sulit v. Taingco, 115 SCRA 207,
July 20, 1982 619, 620, 677, 678, 684
Sulit v. Tiangco, 115 SCRA 207 (1982) 678
Summit Guaranty and Insurance Co., Inc. v.
Arnaldo, 158 SCRA 332 323
Summit Trading & Dev. Corp. v. Avendano,
135 SCRA 397 (1985) 29
Sumulong v. Court of Appeals, G.R. No. 108817,
May 10, 1994, 232 SCRA 372 529, 530, 531, 546, 557, 558
Sun Life Assurance Co. of Canada v. Gonzales
4 3 4
Diez, 52 Phil. 272
Sunflower Neighborhood Association v. Court
of Appeals, 410 SCRA 318, September 3, 2003 593
Supia and Batioco v. Quintero and Ayala, 59 Phil. 312 521
781
REMEDIAL, LAW
VOL. Ill
Suyat, Jr. v. Torres, G.R. No. 133530, Oct. 25, 2004,

441 SCRA 265 283
Sy and Tan v. Discaya, 181 SCRA 378, January 23, 1990 128
Sy Ha v. Galang, 7 SCRA 797 335
Sy Jueco v. Court of Appeals, 224 SCRA 390 569
Sy Oh v. Garcia, 28 SCRA 735, June 1969 543
Sy v. Habacon-Garayblas, 228 SCRA 644 (1993) 593, 608
Sy v. Romero, 214 SCRA 187, 193 (1992) 269
Syjuco, Inc. v. Jose P. Castro, 175 SCRA 171 (1989) 307, 365
Syndicated Media Access Corp. v. Court of Appeals,
219 SCRA 794 (1993) 89
Syquia v. Sheriff, 46 Phil. 400 225
Systems Factors Corp. and Modesto Dean v. NLRC,
G.R. No. 143789, 27 November 2000, 346 SCRA 149 350
T
Tabigue v. Duvall, 16 Phil. 324 330
Tablarin v. Gutierrez, 152 SCRA 730 (1987) 110
Tac-an Dano v. Court of Appeals, 137 SCRA 803,
813, July 29, 1985 295
Tagbilaran Integrated Settlers Association v.
Court of Appeals, G.R. No. 148562,
November 25, 2004, 444 SCRA 193 555, 560, 566
Tamano v. Manglapus, 214 SCRA 587 (1992) 329
Tan Boon Bee and Co., Inc. v. Jarencio,
163 SCRA 205 (1988) 292
Tan C. Tee and Co. v. Wright, 53 Phil. 172 340
Tan v. Director of Forestry, 125 SCRA 302 315
Tan v. Intermediate Appellate Court, 164 SCRA 130 (1988) 266
Tan v. Republic, 113 Phil. 391, Oct. 31, 1961 241
Tan v. Zandueta, 61 Phil. 526 8
Tanada v. Aldaya, 52 O.G. 5175 244
Tanada v. Tuvera, 136 SCRA 27 332
Tanchueco v. Aguilar, 33 SCRA 233 539
Tang v. Court of Appeals, 325 SCRA 394,
Feb. 11, 2000 309
Tangonan v. Pano, 137 SCRA 245 326, 335, 337
Tanjuan v. Philippine Postal Savings Bank,
G.R. No. 155278, September 16, 2003,
411 SCRA 168 (2003) 310
782
INDEX OF CASES
Tano v. Salvador, G.R. No. 110249, August 21,1997,

278 SCRA 154 288, 355
Tano v. Socrates, 278 SCRA 154, August 14, 1997 ' 35
2
Tansipek v. Philippine Bank of Communications,

372 SCRA 456, Dec. 14, 2001 468
Taroma v. Sayo, 67 SCRA 510 359
Tarrosa v. Singson, 232 SCRA 553, May 25, 1994 371
Tatad v. Garcia, Jr., 243 SCRA 436 (1995) 333
Tavera-Luna v. Nable, 67 Phil. 340 266, 323
Tayabas Land Transportation Co. v. Sharruf, 41 Phil. 382 31, 52
Tayag v. Lacson, 426 SCRA 282, March 25, 2004 69, 70, 85
Tayag v. Yuseco, 97 Phil. 712 594
Tayko v. Capistrano, 53 Phil. 866 374
Tec Bi and Co. v. Chartered Bank of India, 41 Phil. 596 31
Ten Forty Realty and Development Corporation v.
Cruz, G.R. No. 151212, September 10, 2003,
410 SCRA 484 504, 528, 529
Tenorio v. Gomba, 81 Phil. 54 495
Tenorio v. Manila Railroad Company, 22 Phil. 411 393, 394
Testate Estate of the Late Linnie Hodges v. Carles,
56 SCRA 266 290
The Anti-Graft League of the Philippines v. San Juan,
260 SCRA 250 (1996) 334
The Chief of Staff v. Guadiz, 101 SCRA 827 83
The Consolidated Bank and Trust Corporation v.
Capistrano, Adm. Matter No. R-66, March 18, 1988,
159 SCRA 47 58
The Executive Secretary v. Court of Appeals,
162 SCRA 51, J u n e 10, 1988 ~ 365
The Florida Bar, Fla., 329 So 2d 301, 302 318
The Hongkong Shanghai Banking Corporation
Employees Union v. National Labor Relations
Commission, 370 SCRA 193, November 22, 2001 101
The Iloilo City Zoning Board of Adjustment and Appeals
v. Gegato-Abecia Funeral Homes, Inc., 417 SCRA 317,
3 3 9
December 8 , 2003
The Imperial Insurance v. de los Angeles, 111 SCRA 25 54, 55
The Insurance Commissioner v. Globe Assurance,
6 8 9
111 SCRA 202
The Manila Remnant Co. v. Court of Appeals,
231 SCRA 281, March 16, 1994 31, 40
783
REMEDIAL LAW
VOL. Ill
The Secretary of Health v. Court of Appeals,

241 SCRA 688, Feb. 25, 1995 294
The Senate Blue Ribbon Committee v. Majaducon,
407 SCRA 356, July 29, 2003 100
Three States Lumber Co. v. Blandas, (CCa 6th)
133 F. 69LRA238 183
Tiglao v. Botones, 90 Phil. 275 444, 445, 450, 490
Tillson v. Court of Appeals, 197 SCRA 587 (1991) 184, 201, 206
Times Broadcasting Network v. Court of Appeals,
274 SCRA 366, June 19,1997 502
Ting v. Court of Appeals, 237 SCRA 797 (1994) 365
Ting v. Villarin, 176 SCRA 532 14
Tiongson v. Court of Appeals, 214 SCRA 197,
Tiongson v. Court of Appeals, G.R. No. L-62626,
18 July 1984, 130 SCRA 482, 488 109
Tirona v. Alejo, 367 SCRA 17, October 10, 2001 530, 544
Tirona v. Hon. Floro P. Alejo, 367 SCRA 17,
October 10, 2001 501, 523
Tirona v. Nanawa, 21 SCRA 395 (1967) 293
Toledo City v. Judge Fernandos, 160 SCRA 285 413
Toledo v. Burgos, 168 SCRA 513 14
Toledo v. Pardo, 118 SCRA 566 (1982) 349
Toledo v. People, 85 SCRA 355, Sept. 30, 1978 282
Tolentino v. Board of Accountancy, 90 Phil. 83,
September 28, 1951 236, 237
Tolentino v. COMELEC, 420 SCRA 428,
January 21, 2004 334, 344
Tomas Galgala v. Benguet Consolidated, Inc.,
177 SCRA 288 (1989) 601
Topacio Nueno v. Angeles, 76 Phil. 12 376
Toprate International Sevices, Inc. v. Intermediate
Appellate Court, 142 SCRA 467 440
Torcende v. Sardido, 396 SCRA 11, J a n u a r y 24, 2003 618
Torres v. Ocampo, 80 Phil. 36 538
Torres v. Quintos, 88 Phil. Reports 436 386
Toyota Motor Philippines Corporation v. Court of
Appeals, 216 SCRA 236, December 7, 1992 92, 493
Trader's Royal Bank v. Intermediate Appellate
Court, 273 SCRA 521, June 17,1997 5 0 , 1 2 0 , 1 3 1 , 176
784
INDEX OF CASES
Troy v. Troy, 16 p. 2d 290 227

Tuason v. Concepcion, 54 Phil. 408 170
Tuason v. Register of Deeds, 157 SCRA 613,
29 January 1988 265, 366
Tui v. Court of Appeals, 37 SCRA 99 (1971) 504
Turqueza v. Hernando, 97 SCRA 483 358
U
U.S. v. Namit, 38 Phil. 926 7
U.S. v. Pompeya, 31 Phil. 245 (1915) 287
U.S. v. Sulene, 36 Fed., 2d., 230 637
Ubarra v. Tecson, 134 SCRA 10 149
Ulang v. Court of Appeals, 225 SCRA 637 83
Ularde v. Enriquez, 78 Phil. 527, June 25, 1947 169
Umira v. Gumiran, 21 Phil. 174 496
Unchuan v. CA, G.R. No. 78755, May 31, 1988,
161 SCRA 710 468
Union Bank v Court of Appeals, 359 SCRA 480,
J u n e 25, 2001 442
United Realty Corp. v. Court of Appeals,
183 SCRA 725, March 27,1990 539, 560, 569
United States v. Jaca, 26 Phil. 100 656
Unity Fishing Development Corp and/or Antonio
Dee v. Court of Appeals, G.R. No. 145415,
2 February 2001, 351 SCRA 140 350
Universal Motors Corp. v. Rojas, Jr., A.M. No. RTJ-03-1814,
May 26, 2005 141
Universal Motors Corp. v. Velasco, 98 SCRA 545 188
Universal Robina Corporation v. Court of Appeals,
373 SCRA 311, J a n . 15, 2002 350
University of San Agustin v. Court of Appeals,
230 SCRA 761 (1994) 327, 337
University of San Carlos v. Court of Appeals,
G.R.No. 79237, 18 Oct. 1988, 166 SCRA 570 337
University of the Philippines v. De los Angeles,
5 2 0
35 SCRA 102 (1970)
University of the Philippines v. Judge Ayson,
G.R. No. 88386, Aug. 17, 1989, 176 SCRA 571 337
University of the Philippines v. Judge Catungal,
96
272 SCRA 221, May 5,1997
785
REMEDIAL LAW
VOL. Ill
University Physicians Services, Inc., v.

Court of Appeals, 233 SCRA 86, June 13, 1994 513
UP v. Catungal, 272 SCRA 221, May 5, 1997 88
UPCB v. Yap, 382 SCRA 772, May 29, 2002 441
Uran Estates, Inc. v. Montessa,
G.R. No. L-3830, March 15, 1951 403
Uriarte v. Teodoro, 86 Phil. 196 408
Uy Hoo and Sons Realty Development Corp. v.
Court of Appeals, 174 SCRA 100 (1989) 560, 561, 566, 567
Uy Kimpang v. Javier, 65 Phil. 170 44
Uy v. Contreras, 237 SCRA 167, 170 133
Uy v. WCC, 97 SCRA 26 (1980) 262
Uy, Jr. v. Court of Appeals, 191 SCRA 275 (1990) 50
V
Vaca v. Court of Appeals, 234 SCRA 146, July 14, 1994 468, 471
Vadil v. de Venecia, 9 SCRA 374 54
Valderama Lumber Manufacturer's Co. v. L.S.
Sarmiento Co., 5 SCRA 287, 291 (1962) 530, 531
Valdevieso v. Damalerio, G.R. No. 133303,
February 17, 2005, 451 SCRA 664, 670, 33
Valdez v. Bagaso, 82 SCRA 22 484
Valencia v. Court of Appeals, 184 SCRA 561 (1990) 297, 315
Valley Trading Co., Inc. v. Court of First Instance
of Isabela, et al., 171 SCRA 501 (1989) 95, 98,155
Valmonte v. Court of Appeals, 252 SCRA 102 (1996) 462, 485
Varona v. Court of Appeals, 428 SCRA 577,
May 20, 2004 501, 530
Vasco v. CA, 81 SCRA 764 213
Vda. de Cachuela v. Francisco, 98 SCRA 172 525
Vda. de Camilo v. Arcamo, 3 Phil. 146 225, 226, 227
Vda. de Catchuela v. Francisco, 98 SCRA 172 (1980) 526
Vda. de Crisologo v. Court of Appeals, 137 SCRA 231 336
Vda. de Espina v. Abaya, 196 SCRA 312, 321 (1991) 269
Vda. de Haberes v. Court of Appeals, 104 SCRA 534 (1981) 540
Vda. de Jacob v. Puno, 131 SCRA 144 345
Vda. de Kraut v. Lontok, 7 SCRA 281, February 27, 1963 567
Vda. de Legaspi v. Avendano, 79 SCRA 135 (1977) 510, 607
Vda. de Murga v. Chan, 25 SCRA 441 (1968) 510, 562
Vda. de Rapisura v. Nicolas, 16 SCRA 798 316
786
INDEX OF CASES
Vda. de Salazar v. Court of Appeals,

250 SCRA 305, Nov. 23,1995 5 4 0
Vda. de Sayman v. CA, 121 SCRA 650 (1983) 301

Vda. de Sayson v. Zerna, 362 SCRA 409, 414 (2001) Z"'.""" U6
Vda. de Serra v. Salas, 30 SCRA 541 3 3 1
Vda. de Tangub v. Court of Appeals, 191 SCRA 885 107

Vda. de Toledo v. Toledo, G.R. No. 149964,
December 8, 2003, 417 SCRA 260 462, 463
Vda. Navarra v. Court of Appeals, Dec. 17, 1991 467
Velasco v. Casaclang, 294 SCRA 394 (1998) 115
Velasco v. Gochuico, 28 Phil. 39 165
Velasco v. Villegas, G.R. No. L-24153, Feb. 14, 1983 243
Velasco Vda. De Caldito v. Segundo, 117 SCRA 573 291, 349
Velasco v. Court of Appeals, G.R. No. 121517,
31 March 2000, 329 SCRA 392 151
Velasquez, Jr. v. Court of Appeals, G.R. No. 138480,
March 25, 2004, 426 SCRA 309 631
Velez v. Avelino, 127 SCRA 602 529
Veloso v. IAC, 205 SCRA 227 (1992) 474
Ventosa v. Fernan, 10 SCRA 59 176
Venus v. Desierto, 298 SCRA 196 (1998) 115
Vergara v. Gedorio, Jr., 402 SCRA 520,
April 30, 2003 628, 684, 685
Vergara v. Ruque, 78 SCRA 312, 329-330 322
Vergara v. Suelto, 156 SCRA 753 353
Verhomal v. Tan, 88 Phil. 389 280
Vicente Ponce v. Alsons Cement Corp.,
G.R. No. 139802, Dec. 10, 2002, 393 SCRA 602 332
Victor Tuzon v. Judge Loreto Cloribel-Purugganan,
A.M. No. RTJ-01-1662 (formerly
OCA I.P.I. 01-1137-RTJ), November 26, 2001,
370 SCRA 511 359
Victoriano B. Tirol, Jr. v. COA, 337 SCRA 198,
August 3, 2000 357
Villa Rey Transit v. Bello, 7 SCRA 735, April 23, 1963 269
2 4 5
Villa-Abrille v. Republic, 99 Phil. 361
Villacencio v. Mojares, 398 SCRA 314, Feb. 27, 2003 458, 461
93
Villadores v. Encarnacion, 95 Phil. 913
2 8 2
Villalon, Jr. v. IAC, 144 SCRA 433
Villamor v. Lacson, 12 SCRA 418, Nov. 28, 1964 329
787
REMEDIAL LAW
VOL. Ill
Villanueva v. CA, G.R. No. 117661, July 15, 1996,

259 SCRA 14 93. 149
Villanueva v. Lim, 69 Phil. 654 678
Villanueva-Fabella v. Judge Ralphee,
419 SCRA 440 (2004) 27
Villareal v. Rarama, 247 SCRA 493, 501, August 23, 1995 28
Villavicencio v. Lukban, 39 Phil. 778 (1919) 678, 680, 685
Villegas v. Court of Appeals, 168 SCRA 553,
December 20, 1988 536, 537
Villena v. Chavez, G.R. No. 148126, 415 SCRA 33,
November 10, 2003 509, 534, 538
Vinluan v. Court of Appeals, 24 SCRA 787, 788,
August 28, 1968 216
Vinzons v. Court of Appeals, 315 SCRA 541,
Viray v. Court of Appeals, 191 SCRA 308 (1990) 80
Viray v. IAC, 198 SCRA 786, July 4, 1991.... 518, 520, 521, 522, 542
Visayan Refining Co. v. Camus, 40 Phil. 550 389, 390, 393, 400
Vital-Gozon v. CA, 212 SCRA 235 (1992) 365
Viuda de Hijos de Crisplo Zamora v. Wright, 53 Phil. 613 328
Vlasons Ent. Corp. v. Hon. Court of Appeals,
155 SCRA 186, October 28, 1987 192, 229
W
Wabe v. Court of Appeals, G.R. No. 82042, 20 J u n e 1988 560
Wack-Wack Golf & Country Club, Inc. v. Won,
70 SCRA 165 224, 227, 228
Walker v. McMicking, 14 Phil. 668, 673,
December 23, 1909 27
Walter E. Olsen and Co. v. Olsen, 48 Phil. 238 8
Webb v. De Leon, 247 SCRA 652, August 23, 1995 289
Weigall v. Shuster, 11 Phil. 340 628
Westminster High School v. Bernardo, 51 O.G. 6245 236
Wicker v. Arcangel, 252 SCRA 444, J u n e 29, 1996 619
Wilfredo Silverio, Ernesto Del Castillo v.
Court of Appeals, 407 SCRA 240, July 24, 2003 507
Wilson Auto Supply Corp. v. Court of Appeals,
208 SCRA 108 (1992) 505, 511
Woodward v. Fox West Theaters, 36 Ariz., 251,
824 Pac. 350,18 SCRA 247 240
788
INDEX OF CASES
Wright de Diokno v. City of Manila, 48 Phil. 572 342

Wrong Siu Tong v. Aquino, 92 Phil. 545, 547-548 "..84
Y
Yang v. Valdez, 177 SCRA 141 (1989) 186, 192, 193,
194, 199, 201
Yangson v. Salandanan, 68 SCRA 42,
November 12, 1975 621, 677, 684
Yao v. Peralta, 414 SCRA 474, October 24, 2003 300, 321, 358
Yap v. Cruz, 208 SCRA 692 (1992) 567
Yap v. IAC, 220 SCRA 245, 253 (1993) 287
Yap v. Vergel G. Cruz, 208 SCRA 692 (1992) 538
Yarborough v. Thompson, 41 Am. Dec. 626 228
Yatco v. CA, 37 SCRA 174 (1971) 662
Yau v. The Manila Banking Corporation,
384 SCRA 340, July 11, 2002 304
Ygay v. Escareal, 135 SCRA 78 309
Ylarde v. Enriquez, 78 Phil. 527, 531 (1947) 167, 168, 173
Yngson v. Sec. of Agriculture, 123 SCRA 441, 449 678
Young v. Rafferty, 33 Phil. 556 112
Young v. Sulit, 162 SCRA 659 (1988) 276, 299
Ysasi v. Fernandez, 23 SCRA 1079 (1968) 167
Ysrael v. Court of Appeals, 78 Phil. 831 606
Yu Cong Eng v. Trinidad, 47 Phil. 385, 389 112, 113
Yu v. Court of Appeals, 217 SCRA 328 (1993) 85, 89
Yu v. de Lara, 6 SCRA 785 (1962) 525, 526
Yuchengco v. Court of Appeals, 376 SCRA 521,
Feb. 7, 2002 309
Yuchengco v. Republic of the Philippines, G.R. No. 1311127,
June 8, 2000, 333 SCA 368 557
Yulienco v. Court of Appeals, 393 SCRA 143,
Nov. 27, 2002 468, 475
Yupangco Cotton Mills, Inc. v. Court of Appeals,
373 SCRA 451 (January 16, 2002) 127
Yuvienco v. Canonoy, 39 SCRA 597 (1971) 329
Z
Zablan v. Court of Appeals, 154 SCRA 487,
September 30, 1987.... 566, 567
789
REMEDIAL LAW
VOL. Ill
Zaldivar v. Gonzales, G.R. No. 80578, 7 Oct. 1988,

166 SCRA 316 646
Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 644, 653, 693
Zamboanga Barter Goods Retailers Association,
Inc. v. Lobregat, 433 SCRA 624, July 7, 2004 525
Zamora v. Caballero, January 14, 2004, 419 SCRA 384 101
Zaragoza v. Fidelino, 163 SCRA 443 (1988) 60
Zenith Insurance Corp. v. CA, 119 SCRA 485 65
Zobel v. Abreu, 52 O.G. 3592 548
Zobel v. City of Manila, 47 Phil. 169 416
Zubiri v. Quijano, 74 Phil. 47 432
Zulueta v. Mariano, 111 SCRA 206 (1982) 520
790
INDEX
A
Abandonment, 386
acceptance of another office is, 386
Abuse, 627
of discretion, 282
of legal process, 656
Academic freedom, 337
of schools, 336
the primacy of, 337
Accident, 601
instances of, 601
Accion de reivindicacion, 493, 495
Accion interdictal, 493
nature of proceedings in, 498
Accion publiciana, 493, 495, 496, 506, 518, 528, 544, 588
pendency of an, 605
Accion reivindicatoria, 496, 518, 588, 603
Accounting suit, 483
Act No. 3135, 455
as amended, 462
governing extrajudicial foreclosure of real estate
mortgages, 459
Act No. 3344, 26
Action, 186
by government against individuals, 368
conversion into ordinary, 249
for reformation of instrument, 506
nature of, 186
on complaint, 575
Acts constituting contempt, 627
Acts of dispossession, 583
against the plaintiff, 583
Adequate remedy, meaning, 267
Administration of justice, 623, 631, 693
to impede, obstruct, or degrade the, 634
791
REMEDIAL LAW
VOL. HI
Administrator, 24
Adultery, 214
as valid defense, 215
Adverse party, 158
Affidavit, 14, 188, 582
failure to state all the requisites in, 190
of complaint, 190
of merit, 190
submission of, 579
Agents of the defendant fraudulently occupying the property, 592
Agrarian disputes, 108
Agrarian laws, 108
Agrarian Reform, 102
cases now with DAR, 103
Agrarian tenancy, 109
Agricultural land, 108
Agricultural Tenancy Act, 515
Agricultural tenants, 515
Alien, 8
certificate of registration, 244
non-resident, 8
Alimony pendente lite, 213
Allegation, 558
Allegation of tenancy, effect of, 516
Almacen, 637
American jurisprudence, 690
Ancillary remedy, 46
Answer, 575
effect of failure to, 578
effect of late, 576
Antagonistic assertion, active, 238
Appeal, 271, 625
and certiorari availed at same time, 297
by certiorari, 268
disposing of the, 598
lies from a verdict of acquittal in civil contempt, 689
multiple allowed, 689
pendency of, 539
perfection of, 671
to Court of Appeals or Supreme Court, 609
Appearance of parties, 578
792
INDEX
Appellate Court, 366, 597

authority of, 672
judgment of, 56
may look into facts, 366
Appellee, 316, 340
comply with payment of rentals and supersedeas bond, 602
granting affirmative relief to, 316
Applicant, 158, 205
Application, 212
for the discharge, 45
Appreciation of evidence, 281
errors in, 281
Arbitrary, 267
Arguendo, 353
Arrears, acceptance of, 554
Art. 694(2), Civil Code, 88
Assets privatization trust, 109
Attaching creditor, 51, 55
surety, 60
Attaching party, 55
Attachment, 22
as a provisional remedy, 6
discharge of, 38
effect in property belonging to the estate of a decedent, 36
excessive, 56
grounds upon which attachment may issue, 2
nature and scope, 6
of debts, effect of, 30
of interest, 36
of real and personal property, 22
purely statutory, 6
rule on the issuance of writ of, 7
to sustain an order of, 6
under Rule 57, 60
Attorney's fee, 590
Auction sale notices, 462
Award, of damages, 365
B.R 129, 584

B.R Big. 224,149
793
REMEDIAL LAW
VOL. Ill
applicable to all courts except Supreme Court, 149

Bad faith, 159
Bail, release on, 673
Balance due collected, 52
upon an execution, 52
Bank deposits, 24, 25
Barangay conciliation, 542
effect of non-recourse to, 542
Barangay proceedings, 281
absence of, 281
procedural, 281
Batas Pambansa Big. 129, 324, 351, 501
Batas Pambansa Big. 877, 560
Beneficiaries, 405
number of, 405
Bill of particulars, motion for a, 580
Black's Law Dictionary, 675
Bonafide tender of payment, 444
Bond, 14,188
amount of, 194
condition of applicant's, 17
defective, 604
defects and irregularities of the, 18
determination of actual value, 194
effect of disapproval of, 157
effect of disapproval of, 174
file supersedeas, 599
for issuance of writ, 40
for lifting of writs, 40
for the issuance of injunctions, 140
mandatory, 140
meaning, 192
of the applicant, 15
rule deemed written into, 193
service of copies of, 157, 158, 174
sufficiency of, 192
Breach of compromise agreement, 537
as basis for ejectment, 537
Breach of contract, 242
ground of, 515
Brillantes, 637
794
INDEX
Burden of proof, 45
Bureau of Internal Revenue, 110
injunction is not available to restrain collection of tax 110
to restrain collection of taxes, 110
Burning prejudice, 680
Bystander rule, the innocent, 116
Camouflage for a wounded pride, 680

Canons of ethics, 651
Cannons of Professional Rules of Ethics, 632
CARL, 105
Castro, Chief Justice Fred Ruiz, 632
Central Bank Act, 156
Certificate of posting, 462
Certiorari, 44, 215, 259, 282, 353, 475
a petition against an order prohibiting execution, 305
allowed where annulment of judgment is inadequate, 307
as a mode of appeal, 268
as a remedy, 292
as a remedy in a preliminary investigation, 288
availability in cases of default, 277
available against administrative bodies exercising quasi-judicial
functions, 265
civil action of, 272
defined, 260
discovery orders not subject to, 279
exception, 280
filing of a petition for, 297, 607
for the purposes of appeal, 269
function of, 280
intended to annul proceedings, 320
is available even if appeal was already perfected, 314
is not substitute for appeal, 611
jurisdiction to issue writ of, 351
limited inquiry in, 305
may be resorted to even if there is a pending, 304
may lie where court is without jurisdiction over subject
matter, 286
non-party not allowed to file petition for, 308
795
REMEDIAL LAW
VOL. Ill
not a substitute for appeal, 283

not all interlocutory rulings reviewable by, 274
not the proper remedy where a motion to quash an information
is denied, 286
period to file, 349
proceedings, 303
remedies of, 625
requisite for petitions for, 284
respondent's petition for, 303
scope of, 253
special civil action of, 310
the provision of Rule 46 are applicable to original
actions for, 351
the remedy of, 260
CFI, 111
Charge, 666
of contempt, inability to obey an order, 680
where to be filed, 666, 667
Chattel mortgage, 9,187, 475
applicability of rule to, 434
foreclose the, 188
judicial foreclosure of, 434
Chattel Mortgage Law, 435
Chemphil, 29
disputed shares of, 29
Chief Justice Concepcion, 253
Chief Justice Narvasa, 60
Child support, 217, 218
Civil action, 131, 656
for recovery of ownership of the property, 131
Civil Code, 185
application of the, 560
Civil Code of the Philippines, 54
Civil contempt, 613, 614, 683, 688
nature of proceedings, 616
purpose of, 614
when the purpose is primarily compensatory or remedial, 615
Civil law, 267
Civil Law Lease, 533
termination of, 533
Civil liability, 221
796
INDEX
Civil or quasi-criminal contempt, 683

Civil Service Commission, 335
Claim for damages,
on account of improper, irregular or excessive attachment, 56
upon the bond, 57
Claims, conflicting, 421
Clear and Present Danger Rule, 642
Clerk of the court, 51
Code of Civil Procedure, 224
Code of Professional Responsibility, 656
violation of the, 621
Collection of property, 51
Comment, 213
order to, 257
of respondents, 258
Comment/Answer, 365
effect of failure to, 365
of respondents, 258
Commission on Audit, 251, 253
final order of the, 251
resolution of the, 252
Commission on Election (COMELEC), 251, 253, 254, 352, 371, 657
review of judgment and final orders or resolutions of the, 251
scope, 251
Commissioners, 418
action of the court upon, 488
action upon commissioners' report, 419
assignment or sale of real estate by, 486
oath and duties of, 485
proceedings by, 418
report of, 487
weight of, 421
Commissions, 24, 25
Compensation, 413
ascertainment of, 410
market value as measure of, 414
Complaint,
action on, 575
third party, 581
Comprehensive Agrarian Reform (CAR), 102
Comprehensive Agrarian Reform Law (CARL) of 1988, 103, 492
797
REMEDIAL LAW
VOL. Ill
Comprehensive Agrarian Reform Program (CARP), 108

Concealment, 9
Concept, 31
Concession contracts, 132
Conciliation, referral for, 580
Conclusiveness of judgment, principle of, 591
Condemnation proceedings, 416, 424
Condition of applicant's bond, 17
Confidence, abuse of, 8
Confidential matters, 635
Confirmation,
effects of, 445, 449
notice and hearing of motion for, 444
valid confirmation is a final order, 445
Conjugal partnership, 218
Constitutional Commissions, 251, 336
discretion of, 335
judgment or final order or resolution of the, 252
review of judgments of, 251
Constitutional right of freedom of speech and press, 643
Constitutional rights, 282, 650
Construction projects, 134
Contemporaneous jurisdiction, 12
Contempt, 662
against quasi-judicial entities, 693
and disbarment distinguished, 691
by non-party, 666
case of, 640
charge, 688
charge of, 669
classification of, 617
direct, 617, 618
indirect, 617, 618
concept of, 612
constructive, 618, 622
direct, 618
for post litigation statement, 636
indirect, 618, 669
judge is equally guilty of, 633
jurisdiction, transfer of, 670
may be tried by other courts, 669
798
INDEX
not Res Judicata to disbarment, 691

of court, 624, 642, 678
power to punish for, 613
two-fold aspect of power to punish, 613
proceedings, 658
governed by special rules, 658
remedy of, 629
tardiness could be a valid ground for, 631
Contract, 8, 132, 133
execution of, 133
of lease, expiration of a, 539
of sale, 187
of personal property, 187
Contractual obligation, 330, 331
Controversy, 237, 242
actual case or, 237
actual or ripening seeds of, 237
theoretical, 241
Contumacious language, 672
contained in a brief, 672
Conversion into ordinary action, 249
Corporate officer, 8
act of taking money from the corporation, 8
Corporation, 316
Corrupt, 619
Costs, 232, 356
and expenses to be taxed and collected, 489
by whom paid, 428
in certain cases, 357
Counter-bond, 21, 38, 40
answers for any judgment, 54
distinction between bond and, 175
filing of, 59
mere filing of counter bond does not however necessarily warrant
dissolution, 156
recovery upon the, 53
requisites for recovery upon, 54
Court, 37 39
action, 249
discretionary, 249
authority of, 571
799
REMEDIAL LAW
VOL. Ill
contemned, 668
control of, 177
decision, 244
disciplinary authority, 645
en banc, 20
in the judgments extends only over properties, 50
may motu proprio cite a person for contempt, 664
may punish contempt committed against a court or judge, 670
may release respondent, 687
not to interfere with administrative matters, 315
power of the, 50
to exercise extreme caution, 383
Court of Appeals, 12, 59, 132, 163, 311, 351, 377, 596
acted ultra jurisdiction, 306
any member may issue preliminary injunction, 76
defendant against whom it was issued may file his claim for
damages in the, 63
immediate execution on appeal to, 609
original jurisdiction of the, 269
to issue certiorari, prohibition and mandamus, 283
stay of execution on appeal to, 610
TRO shall be effective for sixty days (60), 145
Court of First Instance, 610, 611
review of a decision of, 611
Creditor, 14, 171
right of possession, 187
Credits, 24, 30
and all other similar personal property, 30
Criminal
actions, 221, 292
case, 282
support in, 220
contempt, 613, 614
as to the purpose for which the power is exercised, 615
nature of, 615
when the purpose is primarily punishment, 615
fraud, 8
civil character, 8
stockholder, 8
liability, 309
offense, nature of a, 678
800
INDEX
procedure, 662
applicability of, 662
proceedings, 112, 663
other cases where criminal prosecutions were
enjoined, 113
to restrain, 112
prosecution, 658
nature of a, 662
Criticism
and insult distinguished, 645
by lawyers, 645
distinguished from insult, 641
in good faith, 635
nature and manner of, 652
on the correctness or wrongness, soundness or unsoundness of
the decision, 635
or comment, 635
Cruz, Avelino, 29
Cumulative remedies of a third-party claimant, 128
Custodia legis, 24, 25, 31, 176
Damages, 88, 181, 380

against the bond includes exemplary damages and attorney's
fees, 66
award of, 365
claim for, 56
during trial and pendency of appeal may recovered, 64
maybe granted for issuance of writ of preliminary
attachment, 66
maybe awarded in mandamus, 365
meaning of, 603, 604
measure of, 65
must be awarded before judgment become final, 58
nature and extent of, 210
on appeal, 181
requisites for application for, 59
resulting from the appointment of the, 181
right to bring action for, 384
the present rule now embraces all kinds of, 181
801
REMEDIAL LAW
VOL. Ill
Damnum absque injuria, 84

DAR, 104
exclusive jurisdiction, 104
quasi-judicial powers, 1,104
DARAB, 105, 106
limitations of, 108
power, 108
without jurisdiction to review final judgment of MTC
or RTC, 592
David, Atty. Juan T., 634
Debtor,
death of, 451
principal, 31
Debts, 24
and credits, 29
attachment of, 29
effect of attachment of, 30
Decedent, 24
Decision, submission for, 258
Declaratory judgment, 240
Declaratory relief, 234
and similar remedies, 234
concept and where filed, 234
not proper, 241
original jurisdiction of a petition for, 235
parties, 247
proper, 243
purpose of, 235
subject matter of petition for, 243
who may file petition, 234
Defamation, 640
Default, 277, 284
Defeat, 631
refusal of a party to concede, 631
Defendant, 13,158, 184, 214, 381, 401
and costs in certain cases, 357
be given reasonable time to vacate by Sheriff enforcing the
writ, 599
be notified of the decision, 599
property, 6
Defenses and objections, 401, 402
802
INDEX
defendant waives all, 401

Delict, 8
Delivery
of books, 380
of property, 36
to sheriff, 36
Demand,
effect of alternative, 561
how made, 542
to pay, 541
to pay and vacate as condition for filing action, 552
to pay as condition for default, 552
to pay increased rental or to vacate, 561
to vacate and comply, 550
to vacate as a pre-requisite, 547
to vacate in ejectment suit, 550
Denial of motion, 286
Denial of petition, 321
remedy against, 321
Denial of rights, 238
DENR, 191
Department of Agrarian Reform, 103
exclusive jurisdiction of, 104
Department of Agrarian Reform Adjudication Board (DARAB), 516
Deposit, 604
as supersedeas bond, 604
duty to, 605
out of time before or after the writ of execution, 606
purpose of, 400
withdrawal of, 401
Detainer, illegal, 495
Determination, 232
Development Bank of the Philippines, 281
Devisee, 24, 36
Direct contempt, 612, 622, 666
adjudged guilty of, 622
failure to appear at Trial is not, 625
illustrations of, 619
judgment of superior court, 626
Discharge of attachment, 38
on other grounds, 40
803
REMEDIAL LAW
VOL. Ill
upon giving counter bond, 38

Disciplinary authority of the court, 645, 646
Discretion, 328
Discretionary duty, 327
Dismissed without hearing, 309
Disobedience, 626
of or resistance to a lawful writ, process, order, or judgment of a
court, 626, 628
or resistance, 685
Disposition
of attached property, 55, 57
where judgment is for party against whom attachment
was issued, 55
of money deposited, 55
of Natural Resources, 101
of proceeds of sale, 447
of property, 198
by sheriff, 198
Disputed facts, 309
Dissolution of injunction, 156
under the Central Bank Act, 156
Docket, 232
and other lawful fees, 256
Doctrine, 31
of non-interference, 120
Double jeopardy, 688
exists, 688
Doubts, 678
resolved in favor of respondents, 678
Due process, 664
essence of, 665
satisfying the requirements of, 664
Duty of the court, 397
E
Education, 218
Ejectment
ground for, 574
suit, 599
Ejectment case, 505, 585
attorney's fee in, 590
804
INDEX
damages recoverable in, 589

limited jurisdiction in, 595
meaning of damages in, 603
power of court, 594
suit, 587
Electric utility, 136
injunctions against, 136
to restrain, 136
Eminent Domain, 394
allegations in complaint, 395
due process of law in connection with, 390
real parties in interest in, 394
the power of, 388
the right of, 388
under the Local Government Code, 391
when to exercise, 393
who may exercise the power, 392
who should be made defendants, 394
Enforceability, 72
Enforcement of the order, 219
Entry,
not delayed by appeal, 424
upon depositing value with authorized government
depository, 395
upon depositing value with National or Provincial
Treasurer, 396
Equity jurisdiction, 1
Equity of redemption, 439
Essential requisites, summary of, 85
Evidence,
during hearing, 99
nature of, 99
Examination of party, 36
whose property is attached and persons indebted to him, 36
Exception factual findings by NLRC, 310
Execution, 366
exception to Ministerial Duty to issue, 603
may issue for any damages, 366
of the judgment, 600, 605
or costs awarded in accordance with section 1, Rule 39, 366
partial, 484
805
REMEDIAL LAW
VOL. HI
pendency of another action not a ground to prevent, 600

requisites to stop, 599
Executive judge, 145
Executive Justice, 76
Executive Orders Re Sequestration, Freezing and Takeover, 34
Executor, 24
Ex-parte, 143
Expediting proceedings, 361
Expropriation, 388
as a manifestation of the right of eminent domain, 391
for public use, 430
necessity of, 392
order of, 407
proceedings, 409
two stages in, 409
Extrajudicial
foreclosure, 461, 465
injunction to restrain, 76
involving several parcel located in different provinces, 76
of mortgage, 455
of mortgage, 458
applications for, 458
Extraordinary Legal Remedies, 383
Failure of counsel,
to advice his clients, 606
to appear in court, 631
Failure
to answer, effect of, 578
to deposit rentals, 607
to state a cause of action, 45
Fair comment, 640
Fair criticism of the court, 642
Family Code, 218
Family Code of the Philippines, 220
Family Court, 218
Filing,
as remedy, 315
effect of, 258
INDEX
of petition for certiorari, 258

of supersedeas bond, 315
of the counter-bond, 18
Financial interest, 24, 25
Fiscal, 375
when action is brought by, 382
Fishponds, 108
Forbidden Act, 666, 688
Forcible entry, 492, 497, 500, 517
action for, 494
and unlawful detainer cases, 599
cases, the rule in, 587
judgment rendered in an action for, 590
possessor, 583
questions asked in, 534
when complaint is for, 524
Foreclosure,
complaint in action for, 431
judgment on, 436
of equitable mortgage, 432
of mortgage, 188
Foreign corporation, 83
Fraud, 46
allegation of, 46
in the performance of an obligation, 9
instances of, 601
Fraudulent intent, 11
Free press, 647
Freedom of choice of court forum, 353
Freedom of speech and press, 643, 650
Future rights, 83
Galang, 118
Garnishee, 30, 52
liability for debts and credits, 31
obligation of, 30
Garnishment, 30, 40
as a remedy, 31
Gonzales, Tanodbayan Raul M., 646
807
REMEDIAL LAW
VOL. I l l
Government
capital investment, 134
depositary, 395
entry of plaintiff upon depositing value with
authorized, 395
financing institutions, 102
Grant of relief, 154
Granting affirmative relief, 316
to appellee, 316
Grave abuse of discretion, 266, 278, 317
meaning of, 322
Ground for objection to, 153
Grounds for issuance, 266
Growing crops, 25
Guilty of a fraud, 9
in contracting the debt or incurring the obligation, 9
Habeas corpus, 353, 662

cases, 634
Hearing, 14, 45, 214
fair and open, 45
had on application for permission to commence action, 375
holding of a proper, 60
necessity of, 664
of motion to discharge, 45
on preliminary injunction, 147
on the merits, 154
release on bail, 673
Heir, 24, 36
Hereditary rights, determination, 245
Hierarchy of agencies, 106
HLURB, 517
cases under jurisdiction of, 517
jurisdiction of, 594
Hypothetical cases, 238
I
Illegality, 46
established by affidavit, 46
808
INDEX
Ill-gotten wealth, 34
recovery of, 34
Illustrative cases, 646
Imprisonment,
indefinite, 684
on the contemnor, 684
reason for, 682
term of, 682
Improper conduct, 661
Improper interference, 664
with the administration of justice, 664
In personam, 4
Inability to obey order, a good defense, 680
Indebtedness, 6
already secured, 6
where, 6
Independent judiciary, 649
Indirect contempt, 618, 625, 669
charges for, 656, 658
necessity of written charge for, 660
pleading filed in other Courts, 624
proceedings for, 656
punishment for, 673
to be punished after charge and hearing, 626
without charge and hearing void, 625
Individual, 375
may commence action, 375
must have right to office, 381
Inferior court, 492, 585
Infrastructure, 132
and public utilities, 101
injunction against, 133
projects, 133, 134
Initiatory pleadings, 656
requirements for filing, 656
Injunction, 68, 153, 321, 353
against courts or tribunals of co-equal rank prohibited, 99
against public projects, 132
against the NLRC and Labor Arbiter, 115
penalty for refusal to comply or violation of, 161
809
REMEDIAL LAW
VOL. Ill
providing penalties for violation, 135

suits, 506
to issue to prevent future wrongs, 84
to stay final and executory decision, 82
when final injunction granted, 161
Injunction order, 100
Agrarian Reform, 102
disposition of Natural Resources, 101
government financing institutions, 102
infrastructures and public utilities, 101
labor disputes, 100
prohibited in the following cases, 100
Injunctive relief, 361
Injury, 88
Innocent By-stander Rule, 116
Innocent by-stander, 117
Insolvency, 9
Insult, criticism distinguished from, 641
Intemperate language, 619
use of, 619
Inter Partes Case No. 3529, 87
Interest, 417
of the party, 24
on amount awarded, 417, 424
Interim Rule and Circular No. 20-95,143
the provisions of the, 143
Interim rules of procedure
governing intra-corporate controversies under R.A. 8799, 379
on corporate rehabilitation (2000), 379
Interlocutory, 282
orders, 274, 282, 581
rulings on admissibility of evidence, 282
Interpleader, 223
actions for, 225
answer and other pleadings, 230
as proper remedy in search warrant cases, 228
cases, 224, 225
jurisdiction in, 224
concept of, 224
conflicting claims against the plaintiff, 226
determination, 232
810
INDEX
docket and other lawful fees, costs and litigation expenses as

liens, 232
essence of, 226
illustrative cases, 225
improper, 226
motion to dismiss, 230
not available to one already held liable, 227
order, 229
requisites, 225
summons, 230
Intervener's remedy, 473
Intervention, 50
allowed, 206
Irreparable injury, 87
insufficient, 97
meaning of, 88
Issuance, 7, 72
grounds for, 7
Judge Acosta, 46
Judge(s), 37, 39, 356, 358, 679
as formal parties, 358
as respondent should not answer, 359
exception where personal motives attributed to, 359
Judgment, 207
by Court of Appeals, 687
copy to be recorded with registrar of deeds, 489
creditor, 51, 53
debtor, 26, 53
deficiency, 450
disobedience of, or resistance to, the, 628
effect as to person not a party, 424
error of, 267
execution of, 206
for cost, 384
for defendant, 58
immediate execution of, 596
is binding against the parties and all persons claiming under
them, 592
811
REMEDIAL LAW
VOL. Ill
limited rule on conclusiveness of, 591

motion for reconsideration of a, 580
nature and character of the, 61
notice of, 599
obligee, 51, 53
obligor, 37, 51, 52
of foreclosure, distinguish writ of possession from, 447
on foreclosure for payment or sale, 436
period for rendition of, 580
petition for relief from, 580
recovered by the attaching party, 50
review of, 251, 687
satisfaction of, 50
service and enforcement of order or, 366
testimony, 243
to include damages against party and sureties, 158, 159
to include recovery against sureties, 179, 207
where usurpation found, 380
Judicial
administration, 668
courtesy, 363
Declaration of Citizenship, 241
discretion, 266
presumption of, 266
functions, meaning of exercising, 264
or quasi-judicial functions, 259
proceedings, 622
review, 265
arbitrary, 265
error of law, 265
fraud or collusion, or in case the administrative
decision is
corrupt, 265
grave abuse of discretion, 265
of the decision of an official or administrative agency, 265
or capricious, 265
the purpose of, 265
Judiciary, independence of the, 650
Judiciary Act of 1948, 662
Sec. 87 of the, 662
812
INDEX
Sec. 88 of the, 584

Judiciary Reorganization Act of 1980, 351
Jurisdiction, 12, 187, 501, 544
attachment to acquire, 12
confined to correct defects of, 276
contemporaneous, 12
determined by the nature of the action set forth in the
complaint, 502
exercise of, 270
how is determined, 544
loss of, 671
of the MTC, in forcible entry, 585
over persons at time of implementation, 20
over the Res, 12
some parameters to avoid conflict of, 103
Jurisdictional allegations, 555
Jurisprudence, 319
shift in, 636
J u s t compensation, 411
ascertainment of just compensation is a judicial function, 413
meaning of, 413
no need to file counterclaim for, 412
presidential decrees fixing, 412
Justice,
act upon an application for a temporary restraining order, 77
action by a, 146
actions by the, 76
writ of preliminary injunction, 77
Justice Davide, 353
Justice Feria, 25, 259, 435, 688
Justice Moran, 637
in Alarcon, 637
Justice Narvasa, 42, 202
Justice Palmer, 638
Justice Paras, 49
Justice principle, 296
Justice Regalado, 362, 691
Justice Stewart, 652
Justiciable controversy, 237
existence of, 240
813
REMEDIAL LAW
VOL. Ill
Labor Arbiter, 115, 116, 122, 123, 131, 313

limitation of authority of, 116, 131
to issue writs of preliminary injunction, 116
Labor cases, 115
to restrain, 115
Labor Code, 115
Labor court, 123
decision, 126
enforcement of a decision of the, 129
Labor disputes, 100, 117, 126
Land Reform Program, 109
Land Registration Act, 25
Land Registration Authority (the Registry of Deeds), 105
Landlord, 492, 497
to proceed against tenant, 541
Lands, appraisal of, 416
Language,
contemptuous, 623
disrespectful, 623
Law, 8
terminology of, 557
Lawful fees, 232
Lawyer, 645
delaying tactics by, 630
duty of, 631
duty to court, 623
duty to render respectful subordination to the courts, 652
limited right of, 650
tactics in slanting cases tolerated, 630
the contemnor, 645
Lease,
contracts, 559
violation of, 547
where terms expires, 559
Legal rights, 329
Legal separation, 213
Legaspi case, 608
Legatee, 24, 36
814
INDEX
Lessee, 504
Effect of death, 539
no right to retain possession of the premises, 595
Lessor, 492, 504
appellant, 602
right to increase rentals, 568
summary procedure, 575
to proceed against lessee only after demand, 540
Letter of Instruction, 332
Leviable properties, 25
Levy, 26, 27
of an attachment, 27
Libel, 689
Libel law, 650
Liberal interpretation, rule on, 499, 556, 557
Liberty of the press, 640
Lien, 33
Limitations, 382
Litigation, 612
expenses, as liens, 232
Local Government Code, 394
Local government ordinances, 249
Makalintal, Chief Justice Querube C, 632

Malice, 159
Mandamus, 68, 321, 326, 329, 353
against public officials, 338
availability of mandamus to compel filing of criminal
cases, 344
availed of to compel the admission of evidence, 341
cases where mandamus allowed, 340
defined, 326
discretion of a Constitutional Commission, 335
does not lie in doubtful case, 334
exception to the rule that the writ will not issue to control
discretion, 342
grounds to issue, 326
legal right, 327
nature of, 27
815
REMEDIAL LAW
VOL. I l l
petition for, 73
petition for certiorari treated as, 341
premature, 338
purpose of, 326
refused in the following cases, 335
remedy of, 335
the issuance of, 340
to compel a quasi-judicial agency to exercise its discretion, 343
to compel corporation to grant holiday, 336
to compel dismissal of complaint, 342
to compel performance of Discretionary Act, 343
to disclose matters of public concern, 344
Mandatory injunction, 89
examples, 91
exceptions, 90, 93
not to be issued ex parte, 90
reasons for strict requisites for, 90
requisites for issuance of, 89
was not granted, 92
Manual of Instructions for Sheriffs, 121
of the NLRC, 126
Market value, 417
Marriage, 212
annulment of voidable, 212
void, declaration of absolute nullity of, 212
voidable, 212
Memoranda, 581
Metropolitan Trial Court, 187, 501
jurisdiction in civil cases, 502
Ministerial duty, 327
Ministerial function, 316, 474
Ministry of Natural Resources, 324
Misbehavior, 629
of an officer of a court in the performance of his official
duty, 629, 661
Misconception or errors of law, 305
Misplaced passion, 680
Money, 8
converted to his own use by public officer, 8
Moot and academic, 82
Mortgage, 11
816
INDEX
choice of remedies by, 432

effect of failure to implead second mortgagee, 434
execution of a, 11
extrajudicial foreclosure of, 455
filing of an action for annulment of, 442
foreclosure of, 452
on decedent's estate' Choice of Remedies, 432
property, 431, 437
sale of, effect, 437, 438
Motion
for execution, 632
the filing of a, 632
for extension, 581
of time to file pleadings, 581
for reconsideration, 302, 314
certiorari will not lie unless an inferior Court has, 302
when petitioner filed a, 46
of dissolution of, 153
of reconsideration, 299
need to file, 299
maybe dispensed with, 300
where under circumstances would be useless, 304
of review, 252
to declare the defendant in default, 581
to discharge, 45
attachment, 276
denial of, 276
writ of preliminary attachment, 46
to dismiss, 230, 323
to dissolve, 200
to intervene, 307
to lift, notice of, 45
to quash, 286
not subject of a certiorari proceeding, 286
Motu proprio, 219, 656
MTC, 355
jurisdiction of, 510, 532
loss of jurisdiction by, 607
petition filed in Court of Appeals against, 355
to resolve issue of ownership, 512
817
REMEDIAL LAW
VOL. Ill
Multiple appeal, 689

procedural guidelines in issuance of TRO and preliminary
injunction by, 143
Municipal Circuit Trial Courts, 501
Municipal Trial Court, 492, 596
in interpleader cases, 225
jurisdiction, 225, 246
Municipality of San Andres, 370
officials of the, 370
National government project, 135

acquisition, 135
bidding or awarding of contract, 135
clearance and development of the right of way and/or site or
location of any, 135
commencement prosecution, execution, implementation,
operation of, 135
National Labor Relations Commission, 122, 131
Navarro, Rolando, 29
Neglect to deliver property, 177
to receiver, 177
New Civil Code, 584
Art. 539 of the, 584
Newspaper criticism, against the free speech, 644
1987 Constitution, Article VIII of the, 351
1997 Rules of Civil Procedure, 128, 285, 349, 363
NLRC, 121
a writ of execution issued by the, 111
decision, 118
the power to execute its judgments, 131
Non-appealability,
may be waived by failure to object, 216
Non-jurisdiction, 72
the doctrine of, 72
the theory of, 73
to issue writ beyond Court's Territorial jurisdiction, 72
818
INDEX
o
Obligor, 52
Officer, 36, 51
Official gazette, 332
Ombudsman, 114
no injunction against, 114
the policy of non-interference with, 114
Omnibus Election Code of the Philippines, 371
Order, 194, 216
appointing administrator, 274
enforcement of, 219
final, 687
for the issuance of writ, 475
issuance and contents of, 12
of attachment, 12, 35, 38
of condemnation, 407
is final and appealable, 408
of execution, 309
of expropriation, 407, 408, 425
service and enforcement of, 366
to answer, 360
to comment, 257, 360
upon rendition of the, 410
Organic Act, 650
Organic Act for the Autonomous Region in Muslim Mindanao, 351
Ownership, 503
assertion of ownership by defendant, 503
conclusive only on possession, 590
effect of filing action for, 504
immediate execution of, 596
issue of, 503
judgment, 588
nature of, 587
petition for consolidation of, 246
recovery of, 587
resolution of issue of, 585
resolving defense of, 585
uncertain, 421
valid defense in unlawful cases, 513
819
REMEDIAL LAW
VOL. Ill
PARAD, 106
jurisdiction of the, 108
Parties, 247
in foreclosure suit, 433
Partition, 477
accounting for rent and profits in action for, 488
amicable, 490
by agreement, 481
of personal property, 491
of real estate, 477
order for, 481
two phases of, 483
when parties fail to agree, 485
Partnership, 170
Party, 205
released on bail fails to answer, 686
Payment of proceeds, 51
of sale of perishable property, 51
Penalty,
for refusal to comply or violation of injunction, 676
Pendency of action, 1
equity jurisdiction to order deposit during, 1
for annulment, 508
Pendency of probate proceedings, 83
effect of, 83
Pendente lite, 2
Period to file the action, 385
is one year, 385
Perishable, 37
dairy products, 37
fruits, 37
meat, 37
vegetables, 37
Personal property, 23, 24, 28, 30, 184
contract of sale of, 435
how levy made, 27
partition of, 491
Persons, 4
indebted, 36
820
INDEX
Petition, 234
additional requirements for the filing of a, 261
allowed against order granting petition relief, 313
for certiorari, 259, 581
for certiorari and prohibition, 301
not allowed to delay execution, 313
for mandamus, 260, 325, 581
for prohibition, 316, 317
form and contents of, 256
parties and contents of, 376
time to file, 255
when and where filed, 348
who may file, 234, 331
Petitioner, 140, 278, 381, 682
alleged disrespectful language falling, 624
counter affidavit from the, 46
failure to comply with any of the requirements, 257
failure to exhaust administrative remedies, 339
PHHC, 227
Philippine Coast Guard, 28
Philippine Doctrine, 637
Philippine rule, on post litigation statements, 642
Philippines, 4
Philosophy, underlying remedy, 498
Physical possession, 517, 522
in forcible entry, 522
insufficiency of allegation of prior, 523
prior, 573
Picket, 117
Plaintiff, 7, 158, 184, 189, 205, 381, 576
attachment bond, 43
entry of, 395
failure to appear in the preliminary conference, 578
right to condemn the property, 403
the act of the, 631
Pleadings, 575
and motion, prohibited, 580
and proceedings, period for, 379
answer and other, 230
period for, 379
Political issue, 241
821
REMEDIAL LAW
VOL. Ill
Position papers, 579

submission of, 579
Possession de facto, 495, 506, 517, 540
Possession, restoration of, 598, 605
Post litigation newspaper publication, 642
Post litigation statement, 642
Power of contempt, 677
Power of court, 403
to inquire into legality of right, 403
Power of guardian, 429, 489
Power of the court, 673
Power to punish for contempt, 677, 679, 684
Prawn farms, 108
Preliminary attachment, 2, 10, 15
effect of the dissolution of a, 43
to justify the issuance of a writ of, 10
writ of, 5
Preliminary conference, 578
postponement of the, 578
record of, 579
Preliminary injunction, 67, 68, 134, 361, 583
bond for, 137
classes, 67
court must state facts and law to justify grant, 95
defined, 67
discretion in issuance of, 94
elements essential for the grant of a, 98
essential requisites for issuance of, 79
exception, 141
grounds for issuance of, 77
grounds for objection to, or for motion of dissolution of, 153
independent action cannot be maintained merely
to procure, 78
issuance of injunctions to be avoided to dispose of merits, 80
issuance of, 469
kinds of, 67
lifetime of, 151
mandatory, 67
need for caution, 95
not granted without notice, 141
object of, 96
822
INDEX
prohibitory, 67
propriety of issuance of, 78
purpose of a, 69
reasons for power of court to issue, 78
strong arm of equity, 96
under Rule 58, 60
verified application and bond for, 137
who may grant, 71
Preliminary mandatory injunction, 134, 135, 134
in case of appeal, 608
petition for, 609
the grant of, 609
President C. Aquino, 35
President Marcos, 34
Presidential Decree No. 605, 110
Presidential Decree No. 1083, 352
Article 143(e) Chapter I, Title I, Book IV of, 352
Presidential Decrees, 332
Presiding judge, 145
action by the, 146
Press freedom, 639
limits on, 639
Principle, illustration of, 284
Principle of non-interference, 120
limitation of, 120
Principle of prior or contemporaneous jurisdiction, 139
Prior or contemporaneous service, 18
requirement of, 18, 20
Private land, 426
expropriated for a particular public use, 426
Private property, 403
may be expropriated for public use and upon payment of just
compensation, 403
Private respondent, 358
duty to represent public respondent, 358
Private right, 332
Procedural
outline, 367
question, 281
rules, misuses of, 305
Procedure for the punishment of a person, 659
823
REMEDIAL LAW
VOL. Ill
Proceedings, 364, 379, 656

after answer is filed, 364
after comment is filed, 364
by commissioners, 418
when party released on bail fails to answer, 586
where property claimed by third person, 204
Professional misconduct, 646
Prohibition, 68, 316, 318, 353
against Pactum Commissorium, 431
function of, 321
intended to prevent a power about to be exercised without
jurisdiction, 320
object of, 322
pendency of the special civil action for, 319
the relief granted in a proceeding, 319
Prohibitory injunction, 81
Proof, 558
difference between allegation and, 558
Property, 21, 37
action against a party who has removed or disposed of his, 10
action to recover the possession of, 9
actual transfer, 10
belonging to the estate of a decedent, 36
claimed by third party, 204
covered by torrens title, 94
discharged with respect to a particular, 39
disposition of, 198
embezzled or fraudulently misapplied, 8
immovable, 185
in custody of the law, 49
judgment for return of, 210
judicial process for the recovery of, 518
manner of attaching, 18
mere removal or disposal of, 10
mortgaging a piece of, 11
necessity of imminent danger to, 172
of the partnership, 170
or converted to his own use by a public officer, 8
owners of a, 498
personal, 185, 186, 224
real, 224
824
INDEX
Registration Decree, 25
rents, earnings and income of, 454
return of, 198
seized under a writ of preliminary attachment, 61
taken for public use upon expropriation, 426
the actual market value of the, 189
unjustly or fraudulently taken, 9
value of, 21
which cannot be attached, 21
Propriety of petition, 236
requisites for, 236
Protect contingent, 83
Provisional remedies, 1, 34
nature of, 1
under the present rule, 1
Provisional remedy, 186
of attachment, 13
Public auction, 455, 573
Public lands, 496, 536
Public office, 380
Public projects, 132
to restrain, 132
Public prosecutor, 374, 375
commence action with permission of court, 374
must commence action, 374
Public right, 332
Public use, 405
artesian wells, 406
bridges, 406
cemeteries, 406
crematories, 406
ferries, 406
levees, 406
meaning of, 405, 406
military posts, 406
other public purposes, 406
parks, 406
piers, 406
playgrounds, 406
plazas, 406
public buildings, 406
825
REMEDIAL LAW
VOL. Ill
railroads, 406
roads, 406
schoolhouses, 406
sewerage systems, 406
sidewalks, 406
streets, 406
taking property for, 406
water supply, 406
wharves, 406
Public utility, 132
implementation or execution of contracts for the
operation of a, 133
Publication, 634
after judgment is final, 636
of a criticism of a party, 634
while case is pending, 634
Punishment, 695
for indirect contempt, 673
if found guilty, 695
procedure for the, 659
Puno, Justice Reynato, 344
Purchaser, 187, 497, 573
in a chattel mortgage, 187
Purely ministerial, 327
Purpose, 5
Q
Quasi in rem, 4
Quasi-contract, 8
Quasi-delict, 8
Quasi-judicial, 316
Question of facts, 309
Questions immaterial, nature of, 272
Quiet title, actions to, 246
Quo warranto, 353, 368
as to elective and appointive office distinguished, 373
concept of, 369
distinguished from election contest, 372
distinguished from mandamus, 372
filing of, 377
in election cases, 371
826
jurisdiction to issue, 370
petition for, 371
special civil action of, 369
subject matter of, 370
R.A. No. 6657, 103, 106

R.A. No. 6715, 124
R.A. No. 6734, 351
R.A. No. 7279, 406
R.A. No. 7691, 246, 496
R.A. No. 8975, 134
RARAD, 106
Real action, 224
Real and personal property, 22
attachment of, 22
Real estate, 477
complaint in action for partition of, 477
mortgage, 431
foreclosure of, 431
partition of, 477
Real parties-in-interest, 332
Real property, 23, 224, 395
Attachment of, 25
interpleader to determine the ownership of, 224
kinds of possessory actions of, 493
levy of, 26
Reasonable compensation, 589
Receiver, 163
appointment of, 163, 172
appointment of receiver during pendency of appeal, 168
bond on appointment of, 170
clerk of court not to be appointed as, 173
compensation of, 178, 179
concept of a, 164
denial of application or discharge of, 171
discretion in appointment of, 172
general powers of, 175
liability for refusal or neglect to deliver property to, 177
no action against receiver without leave of court, 176
827
REMEDIAL LAW
VOL. Ill
oath and bond of, 173

of real or personal property, 171
purpose of, 165
reason for appointing, 165
when may receiver be appointed, 166
who may be appointed, 165
Receivership, 163
a petition for, 167
in partition proceedings, 170
not allowed to take away possession of property, 169
termination of, 178
under Rule 59, 34, 60
Reconsideration, motion for, 580
Recording judgment, 429
and its effect, 429
Recovery,
against sureties, 207
element for, 159
limit of, 159
of damages, 180
on the bond, 159
requisites for recovery on replevin bond, 208
upon the counter bond, 53
Recto Law, 187, 435
Redemption, 456
amount of, 441
effect of, 466
gives rise to estoppel, 442
in extrajudicial foreclosure, 441
of properties mortgaged with the Philippine National
Bank, 443
possession during redemption period, 456
who may exercise right of, 442
Reformation of instrument, 246
Regional Courts, 351
Regional Trial Court, 82, 269, 272, 590, 597, 673
beyond the territorial jurisdiction of the, 74
designation of, 136
jurisdiction or authority of the, 72
power, 73
shall exercise original jurisdiction in the issuance
828
INDEX
of writs of, 352

certiorari, 352
habeas corpus, 352
injunction, 352
mandamus, 352
prohibition, 352
quo warranto, 352
Registrar of Deeds, 23, 489
Registration, 451
Registry of property, 468
Regular court, 129
authority of, 118
the issuance of a TRO or injunction issued by the, 129
Relief, to seek, 241
Rem or quasi in rem, 21
Remedial measure, 683
Remedies, 129
antithetic character of, 273
of defendant, alternative, 99
other similar, 246
Remedy, 57, 357
against COA and COMELAC
is Rule 65, 253
against order of dismissal, 274
basis of, 189
for return of seized property, 199
of appeal, 285
of attachment, 6
of injunction, 81
of the third-party claimant against the enforcement of the Labor
Court, 126
party entitled to, 7
under Rule 65 must be against proper party, 357
under the NLRC sheriff manual, 126
who may avail of, 184
Rendition of judgment, period for, 580
Renewal clauses, 536
interpretation of, 537
Rentals, 602, 605
payments of, 602
Rents, 589
829
REMEDIAL LAW
VOL. Ill
Repealing clause, 136

Replevin, 9, 183
affidavit and bond, 188
application, 183
definition, 183
disposition of property by sheriff, 198
duty of the sheriff, 195
exception, 192
judgment, 207
judgment to include recovery against sureties, 207
order, 194
possession of chattel should be by, 187, 436
proceedings where property claimed by third person, 204
property seized by virtue of search warrant not subject to, 191
return of papers, 207
return of property, 198
truck seized by DENR for violation of Forestry laws not subject
to, 191
Requisites, 57
Res judicata, 691
Respect, due to courts and judicial officers, 653
Respondent, 325, 381, 687
and cost in certain cases, 356
private, 356
public, 356
released on bail fails to appear, 686
Restitution, 221
Restoration, 425
to the defendant of the possession of the property, 425
Restraining order, 68, 148, 153
Return of papers, 207
Revenge, 680
Reversal, effect of, 424
Review
of authority (Jurisdiction) to act, 305
of intrinsic merits of questioned order, 305
of judgment, 687
Revised Administrative Code, 393
Book III of the, 393
Revised Rules of Court, 664
Rule 71 Section 3 of the, 664
Rule 138 of the, 632
830
INDEX
Revolutionary Government, 34
Right of eminent domain, 389
exercise of, 403
nature of the, 389
requisites for exercise of the right, 390
Right of lawyer, limited, 650
Right of petitioner, 399
to dismiss petition after he has been placed in possession, 399
Right of purchaser, 446
to issuance of writ of possession, 446
Right of redemption, 439, 452
and equity of redemption distinguished, 439
in judicial foreclosure, 440
under General Banking Act, 440
Right of respondent, 663
to be informed of charges against him, 663
Right to appeal, 298
be available when certiorari filed, 298
Right to just compensation, 411
Right to redeem, 441
effect of failure to interpose, 441
Rights of person, 380
Rights of plaintiff, 422
after judgment and payment, 422
Royalties, 24, 25
RTC,
decision of the, 599
judgment of the, 599
Ruiz, Thelly, 29
Rule, 3
changes in the, 12
governing proceeding, 108
of Court, 224
Rule 70 of the, 584
Rule 71 of the, 668
on partial discharge, 39
on Prior or Contemporaneous Jurisdiction, 12
on Special Civil Actions, 75
source of, 3, 12
strict compliance with, 7
Rules of Court of the Philippines, 560
application of the, 560
831
REMEDIAL LAW
VOL. Ill
Rules of the Court, 252
Salary of the parent, 219

deduction of the provisional support from the, 219
Sale, 455
and attachment of properties, 50
of the third person null and void, 50
of property, 52
of real estate, 486
by commissioners, 486
or execution, 314
place of, 455
public auction, 455
publication of notices, 455
under special power, 455
Sandiganbayan, 352
original jurisdiction over petitions of similar nature including
quo warranto, 352
shall exercise exclusive original jurisdiction over petitions for
the issuance of writ, 352
injunction, 352
of certiorari, 352
of habeas corpus, 352
of mandamus, 352
of prohibition, 352
Satisfaction of judgment, 50
out of property attached, 50
Scandalizing the court, 640
Schools of learning, 337
Scurrilous abuse of judge, 640
Search warrant,
disregard of requirement of, 315
Securities and Exchange Commission, 369
adjudicatory function of the, 378
exclusive jurisdiction against corporations, 377
under PD 902-A, 369
Seizure, 60
or delivery under Rule 60, 60
Selfish motives, 680
Service, 366
832
INDEX
and enforcement of order or judgment, 366

Shari'ah Appellate Court, 351
Sheriff, 19, 21, 207
disposition of property by, 198
duty ofthe, 195, 196
embezzles proceeds, 52
executing the writ, 23
liable for the loss of the property, 28
making the levy, 36
respondent, 28
return of, 22, 50
sued for damages as a result of the attachment, 47
Slade Perkins case, 613
Slum area, 406
Slum clearance, 406
Social legislation, 143
Sole issue, 73
legality of the decision of administrative officials, 73
Solicitor General, 248, 374
notice on, 248
Special civil action, 223, 284
for certiorari, 268, 284, 320
of certiorari, 75
of Certiorari against PARAD, 106
procedure in the foregoing, 367
Special jurisdiction of Regional Trial Court, 107
over Agrarian cases, 107
Specific performance, 552
distinction between action for forcible entry and, 538
Speculative cases, 238
Spousal support, 212, 217
Squatters, 248, 592
Sta. Clara, 150
Status quo, 70, 81
in mandatory injunction, 71
in prohibitory injunction, 71
meaning of, 70
order to maintain the subject of controversy in, 148
Statute, 242
Stealth, in cases of, 523
Stockholder, 171
833
REMEDIAL LAW
VOL. I l l
may apply for receiver for corporation, 171

Stocks or shares, 23
interest in, 23
Strictissimi Juris, rule on, 555
Subpoena, 627
duces tecum, 621
failure to obey a, 627
Successor-in-interest, 443
Suits,
for annulment of sale, or title, or document affecting
property, 507
Summary denial, 154
without adequate hearing improper, 154
when allowed, 155
Summary procedure, 575
rules on, 599
Summons, 230
failure of Sheriff to serve, 629
services of, 18
Superior court, 306
resolve merits of main case, 306
Supersedeas bond, 602
filed with the Justice of the Peace, 603
filing of, 315
items on, 603
may be in cash or surety bond, 605
payment of, 602
Support, 218
amount of, 219
clothing, 218
comprises everything indispensable for sustenance, 218
dwelling, 218
education, 218
factors in determining, 217
child, 217
spousal, 217
for the offspring, 220, 221
in criminal cases, 220
medical attendance, 218
Support pendente lite, 212
affidavits to prove amount sufficient, 216
application, 212
834
INDEX
comment, 213
enforcement of order, 219
granting, 215
hearing, 214
order, 216
restitution, 221
support in criminal cases, 220
trial judge denied an application for, 216
transportation, 218
Supreme Court, 12, 59, 120, 132, 269, 292, 594
Administrative Circular No. 1 dated J a n . 28 1988, 153
Administrative Circular No. 22-95, 162, 674
both powers are inherent in, 692
cannot pass upon the sufficiency or insufficiency
of evidence, 309
in granting a writ of certiorari, 216
policy of resort to, 352
prohibition and mandamus shall be filed in, 75
three subsequent decisions of the and second Division
ofthe, 121
to review decisions of the COMELEC, 254
Sureties, 158
judgment to include recovery against, 179
Surety, 61
liability, 62
right to due process, 61
Surigao Development Bank, 281
"Taking" of property, 398

under the power of eminent domain, 398
Tanodbayan, 646
scope of the power and authority of the, 646
Tape recordings, 283
admission of unauthorized, 283
Taxpayers' suit explained, 333
Temporary restraining order, 68, 134, 137, 142
application for a, 138
authority of any member of the court to issue a, 76
bond for, 137
may granted only when, 138
835
REMEDIAL LAW
VOL. Ill
prohibition on the issuance of, 135

the effectivity of a, 142
Termination, notice of, 569
Territorial limitations, 72
in issuance of injunctions, 72
Test,
adequacy of appeal, 290
of sufficiency of cause of action for mandamus, 332
Testimony, or defense, 673
The complaint, 388
Theories of free speech, 651
Third party complaint, 48, 49, 245
improper, 245
Title to the land, 424
does not pass to the plaintiff until the indemnity is paid, 424
Tolerance, 527
cannot convert forcible entry into unlawful detainer, 527
Torrens title, 94
Transferees pendente lite, 593
Transportation, 219
Trespassers, 592
Trial court, 132, 295
grave abuse of discretion, 295
rulings of the, 282
Trial, motion for new, 580
Tribunal, 356
TRO, 118
automatic termination of, 151
differences in the requisites for the issuance of a, 145
is improper to transfer possession, 148
lifespan of, 149
procedural guidelines in issuance of, 143
purpose, 148
scope of, 150
Trustee in will necessary party, 248
2003 Rules for Agrarian Law, 105
U
Ultra vires act, 333
United States Supreme Court, 651
836
INDEX
Unlawful detainer, 492, 497, 500, 535, 536, 572, 573, 599
allegations determines nature of action, 530
appeal, 281
distinction between forcible entry and, 499
jurisdictional questions, 281
period to file, 542
propriety of, 281
suit, 495
what should be alleged in complaint for unlawful detainer by
tenant, 546
when complaint is neither forcible entry or, 524
Unlawful interference, 627
Urban Development and Housing Act of 1992, 406
Usurpation, 368, 376, 380
of public office, position or franchise, 368
parties and contents of petition against, 376
Venue, 376
Verdict of acquittal in civil case, 688, 689
Vessel, 28
Vindictive principle, 684
Violation of duty, 43
willful 43
W-Z
Waiver, 606
by plaintiff, 606
Wellington, 117
Without jurisdiction, 266
Woodward, 651
Writ of attachment, 20, 46, 58
authority of another Court to issue over property attached, 49
implementation of the, 13
issued in favor of the Republic of the Philippines, 47
mandatory requisites for the issuance of a, 14
Writ of certiorari, 268, 301
available only to review final judgment or decrees, 279
both Supreme Court and COMELEC have concurrent
837
REMEDIAL LAW
VOL. Ill

in the issuance of, 72
requisites of a petition for the issuance of a, 261
target of extraordinary, 272
Writ of execution, 220, 607
as in ordinary civil action, 674
by the court, the issuance of, 399
Writ of habeas corpus, 662
Writ of injunction or retraining order, 674
in cases of violation of, 674
Writ of mandamus, 328
Writ of possession, 32, 466, 593
case, 506
issuance of, 446, 468
refusal to comply with, 628
right of purchaser to, 466
setting aside of sale and, 457
when may issue, 447
Writ of preliminary attachment, 12, 15
compromise agreement does not dissolve, 33
Writ of preliminary injunction, 689
act of violating the, 689
after (20) days may be issued, 152
Writ of prohibition, 318, 322
Writ of quo warranto, 369
Writ of replevin, 187, 197
Writ of seizure (or delivery), 200
Writ of seizure of personality (Rule 60), 34
Writ on an ex-parte proceedings, 155
Writs and orders, 136
nullity of, 136
Written charge, 660
contempt void in absence of, 660
is necessary for indirect contempt, 660
Zonal value of the property, 415
interest on, 415

Provisional Remedies Herrera

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Provisional Remedies Herrera

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RULE 57

Provisional remedies are:

a. Those to which parties litigant m a y resort for the preser-

b. T h e y are applied to a pending litigation, for the purpose

a) Attachment (Rule 57)

The principle that no person may unjustly enrich himself at

A court may not permit a seller to retain, pendente lite, money

S E C T I O N 1. Grounds upon which attachment may issue.

( a ) I n a n action f o r the r e c o v e r y o f a specified a m o u n t

(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

The present Rule on attachment was taken from Section 1 of the

a. changing the time when the filing of an application for a

sections ( d ) to "an action to recover the possession of property un-

M e r e non-residence is not enough, the rule added "and is not

The rule does not include foreign corporations duly licensed to

In other words a foreign corporation licitly doing business in

3. Notes and Cases

A w r i t of preliminary attachment is a provisional remedy is-

Another definition given in 4 Words and Phrases 727 (1940), is

able property of the defendant, or so much thereof as may be suffi-

The reason for the rule prohibiting attachment where indebt-

Attachment is not a distinct proceeding in the nature of an

Attachment as a provisional remedy is purely a statutory one.

G u z m a n v. Catolica, et al., Phil. 257; Gruenberg v. Court of Appeals, 138 S C R A

T h e rule on the issuance of a w r i t of attachment must be con-

f. Writ m a y be Q u a s h e d on Certiorari If Not Based on

If a w r i t is issued for which there is no statutory authority, the

1. Plaintiff or "any proper party" includes defendant in a

2. Plaintiff cannot attach property claimed as his and in his

cause of action a r i s i n g from l a w , contract, quasi-contract,

If one of two persons who owned a sweepstakes ticket, that won

The act of a corporate officer in taking money from the corpora-

( c ) I n a n action t o r e c o v e r the possession o f p r o p e r t y

As distinguished from replevin the personal property in this

In replevin, the property being recovered belongs to the plain-

In an action to recover possession of personal property a writ of

Failure to disclose non-delivery of vehicle to financing com-

Actual transfer is not necessary as mere design to dispose of

1. The acts of a bus company in having buses repaired and

2. Intent to defraud may be and usually is inferred from the

3. M e r e removal or disposal of property, by itself, is not a

4. It is the removal or disposal with intent to defraud de-

Thus, to justify the issuance of a w r i t of preliminary attach-

^Filinvest v. Relova, 117 S C R A 420, 432.

A bare allegation that an encumbrance of a property is in fraud

T h e execution of a mortgage in favor of another creditor is not

T h e inability to pay one's obligation is not synonymous with

(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

Non-resident defendant or on whom summons may be served by

T h e rule does not include foreign corporations duly licensed to

In other words a foreign corporation licitly doing business in

4. Attachment to A c q u i r e Jurisdiction O v e r the Res

S E C . 2. Issuance and contents of order. An o r d e r of

Taken from the former Section 2.

a. The Rule on P r i o r or Contemporaneous Jurisdic-

The present Rule clarifies the conflicting opinions on whether

T h e Supreme Court, however, in Davao Light and Power Co.,

T h e foregoing doctrine was reiterated in Cuartero v. Court of

b. T h r e e Stages in Issuance of Writ

T h e Supreme Court emphasized that the grant of the provi-

^eivert v. C A , 168 S C R A 692 (1988).

However, should the Court decide to hold a hearing with notice

c. Thus, the settled rule is that attachment may be issued ex

3. When Hearing Necessary