Rule I General Provisions

RULE I GENERAL PROVISIONS
1. The Rules shall be known and cited as the Rules of Court.1
2. They apply in all courts, except as otherwise provided by the Supreme Court2 in civil, criminal
and special proceedings.3
2.1 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil Procedure
shall be discussed herein.
2.2 A Civil Action is one by which a party sues another for the enforcement or protection of a right
or the prevention or redress of a wrong. Examples: To enforce payment of a loan or to eject an
intruder on one’s property.
2.3 Civil Actions may be considered as:
(a) Ordinary or Special, while both are governed by the rules for ordinary civil actions, there are
specific rules prescribed for a special civil action.
(b) In Personam, which is an action brought against a person based on personal liability to the
person bringing the action. The purpose of the action is to impose through the judgment of a court,
some responsibility or liability directly upon the person of the defendant.4 In this kind of action, no one
other than the defendant is held liable, not the whole world.
(c) In Rem, is an action that is directed against the thing itself rather than the person, It is directed
against the thing, property or status of a person and seeks judgments with respect thereto against the
whole world.5 An example would be an action for registration of land as the judgment thereon is
binding upon the whole world.
(d) Quasi in Rem, is an action that names a person as a defendant but its object is to subject the
person’s interest in property to a corresponding lien or obligation.6 It deals with the status, ownership
or liability of a particular property but which are intended to operate on these questions only as
between the particular parties to the proceedings and do not cut off the rights and interests of all
possible claimants. Examples are actions for partition, attachment or foreclosure of mortgages.
2.4 Note the distinctions between actions in personam, on one hand, and actions in rem or quasi
in rem on the other, is essential as far as jurisdiction. In an action in personam, jurisdiction over the
person of the defendant is necessary for the court to validly try and decide the case. In a proceeding
in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdiction over the
res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into
actual custody of the law; or (2) as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective.7
3. Civil Actions can also be distinguished as:
3.1 Real Actions are those which affect title to, or possession of real property or any interest
therein.8 All others are personal actions.9
3.2 In a real action, it is founded upon the privity of real estate. That means that realty or any
interest therein is the subject matter of the action. What is essential is that as far as the real property
is concerned, the issues are title to, ownership, possession, partition, foreclosure of mortgage or
1
Section 1, Rule 1, 1997 Rules of Civil Procedure
2
Supra, Section 2, Rule 1
3
4
Domagas v. Jensen, 448 SCRA 663
5
Ching v Court of Appeals, 181 SCRA 9
6
Ramos v. Ramos, 399 SCRA 43
7
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007
8
9
condemnation. Hence, an action for damages suffered by real property is a personal action as it does
not involve any of the listed issues.
3.3 An action to annul a contract of loan and its accessory real estate mortgage is a personal
action. In a personal action, the plaintiff seeks recovery of personal property, the enforcement of a
contract or recovery of damages. A real action is an action affecting title to real property or for
recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on real
property. The rule on real actions only mentions an action for foreclosure of real estate mortgage; it
does not include an action for cancellation or annulment of a real estate mortgage. 10
3.4 The distinction between a real action and a personal action is important for the purpose of
determining the venue of the action.
3.5 An action in personam is not necessarily a personal action. Nor is a real action necessarily an
action in rem. An in personam or an in rem action is a classification of actions according to the object
of the action. A personal and real action is a classification according to foundation. It is in rem when
directed against the whole world. For instance, an action to recover, title or possession of real
property is a real action, but it is an action in personam. It is not brought against the whole world but
against the person upon whom the claim is made.11
4. Distinguishing civil actions from other kinds of actions:
4.1 Criminal Action is one by which the state prosecutes a person for an act or omission
punishable by law.
4.2 A Special Proceeding is a remedy by which a party seeks to establish a status, right or a
particular fact. In addition, a civil action is adversarial, while a special proceeding may not be so as it
may involve only 1 party. The object of a civil action is the formal demand of a right by one against
the other, while in a special proceeding, it is the declaration of a status, right or a particular fact.
5. They do not apply to election cases, land registration, cadastral, naturalization and insolvency,
and other cases not herein provided, except by analogy or in suppletory character and whenever
practicable and convenient.12
6. The rules have retroactive application in the sense that they shall be held to apply to actions
pending or undetermined at the time of their effectuality.13
6.1 The exceptions to retroactive application are: (a) the statute itself or by implication provides
that pending actions are excepted (b) it will impair vested rights (c) to the mind of the court, it will work
injustice (d) it would involve intricate problems of due process or impair the court’s independence
WHEN AN ACTION IS COMMENCED
1. An action is commenced upon the filing of the original complaint in court. Filing refers to the act
of presenting the complaint to the clerk of court and the payment of the requisite docket and filing
fees. Filing is deemed done only upon payment regardless of the actual date of the filing.14
1.1 An exception is when the plaintiff is authorized to litigate as a pauper litigant as he is exempt
from the payment of filing fees.
2. If an additional defendant is impleaded in a later pleading, it is commenced as far as the

additional defendant on the date of the filing of the later pleading, irrespective of whether the motion
for its admission, if necessary is denied by the court.15
10
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500
11
Republic v Court of Appeals, 315 SCRA 600
12
Supra,,Section 4, Rule 1
13
Nypes v. Court of Appeals, 478 SCRA 115
14
Magaspi v. Ramolete, 115 SCRA 193
15
3. Note that the commencement of the action interrupts the period of prescription as to the parties
to the action.16
HOW SHOULD THE RULES BE CONSTRUED
1. The rules shall be construed liberally in order to promote their objective of securing a just
speedy and inexpensive disposition of every action or proceeding.17
1.1 Liberal construction is the controlling principle to effect substantial justice. Litigation should as
much as possible, be decided on their merits, and not on technicalities.
1.2 Rules must not be applied to rigidly so as not to override substantial justice.18 Rules of
procedure must be used to facilitate not to frustrate the ends of justice.19
1.3 It does not mean, however, that procedural rules are to be ignored or disdained at will to suit
the convenience of a party.20
2. Liberal construction of the rules should be made by the courts in cases: (a) a rigid application
will result in manifest failure or miscarriage of justice, especially if a party successfully shows that the
alleged defect in the questioned final and executory judgment is not apparent on its face or from the
recitals contained therein (b) where the interest of substantial justice will be served (c) where the
resolution of the motion is addressed solely to the sound and judicious discretion of the court (d)
where justice to the adverse party is not commensurate with the degree of this thoughtlessness in not
complying with the procedure prescribed.21
3. A party litigant should be given the fullest opportunity to establish the merits of his complaint or
his defense. He ought not to lose life, liberty or honor or property on technicalities.
3.1 Rules of procedure should be viewed as mere tools designed to facilitate the attainment of
justice. An example is the matter of the attachment of copies to petitions22 or failure to indicate
material dates in the petition.23
4. Note that in doing so, substantial justice and equity considerations must not be sacrificed.
4.1 Periods for filing are as a matter of practice, strictly construed.
4.2 Neither can liberality of the rules be invoked if it will result in the wanton disregard of the rules
or cause needless delay in the administration of justice.24
5. Concommitant to a liberal application of the rules of procedure should be an effort on the part
of the party invoking liberality to adequately explain his failure to abide by the rules. 25
6. The rules and procedure laid down for the trial court and the adjudication of cases are matters
of public policy.
6.1 They are matters of public order or interest which can in no wise be changed or regulated by
agreements between or stipulations by parties to an action for their singular convenience. 26
6.2 They are required to be followed except only for the most persuasive of reasons as when
transcendental matters of life, liberty or state security is involved. Litigation is not a game of
16
Cabrera v Tiano,8 SCRA 542
17
Supra,Section 6, Rule 1
18
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
19
Canton v City of Cebu, GR No. 152898, February 12, 2007
20
Vda De Toledo v Toleda, 417 SCRA 260
21
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
22
Alberto v Court of Appeals, 334 SCRA 756
23
Fulgencio v NLRC, 411 SCRA 69
24
El Reyno Homes v Ong, 397 SCRA 563
25
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
26
Republic v Hernandez, 253 SCRA 509
technicalities. It is equally true, however, that every case must be presented in accordance with the
prescribed procedure to ensure an orderly and speedy administration of justice.27
7. The Supreme Court has the power to suspend or set aside its rules in the higher interest of
justice.28 Specifically, the reasons that will warrant the suspension are: (a) the existence of special or
compelling reasons (b) the merits of the case (c) a cause not entirely attributable to the fault or
negligence of the party favored by the suspension (d) a lack of showing that the review is frivolous or
dilatory, and (e) the other party will not be prejudiced thereby. 29
RULE 2 CAUSE OF ACTION
CAUSE OF ACTION DEFINED
1. The basis of an ordinary civil action is a cause of action.30
2. A cause of action is the act or omission by which a party violates a right of another.31
THE REQUISITES OF A CAUSE OF ACTION
1. The requisites for a cause of action are: (a) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created (b) an obligation on the part of the defendant to respect
and not to violate such right (c) an act or omission on the part of the defendant constituting a violation
of the plaintiff’s right.32
DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION
1. An action is the suit filed in court for the enforcement or protection of a right, or the prevention
or redress of a wrong, while a cause of action is the basis for the filing of the action.
2. The right of action is the right to commence and maintain an action, it is a remedial right that
depends on substantive law, while a cause of action is a formal statement of the operative facts
that give rise to such remedial right which is a matter of statement and is governed by
procedural law. The right of action which is procedural in character is the consequence of the
violation of the right of the plaintiff. Hence, there is no right of action where there is no cause of
action.
2.1 The distinction is best used to explain the principle that the existence of a cause of action may
only be ascertained from the allegations of the complaint.33
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION
Same Objective Test – if a party has only one objective in filing two cases, there exists identity of causes of
action and reliefs based on the same objective standard.34
1. A party may not institute more than one suit for a single cause of action.35
27
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
28
Fortica v Corona, GR No. 131457, April 24, 1998
29
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
30
31
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
32
Navao v CA, 251 SCRA 545
33
Equitable Bank v CA, 425 SCRA 544
34
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
35
2. The practice of splitting a cause of action is discouraged because it breeds multiplicity of
actions, clogs the dockets of the courts and operates to cause unnecessary expense to the parties.
3. If a party institutes more than one suit, the filing of one or a judgment upon the merits in
anyone is available as a ground for the dismissal of the others.36 This is also known as Splitting a
Cause of Action.
3.1 The remedy of the defendant is to file a motion to dismiss. If the action is pending when the
second action is filed, the dismissal is based on litis pendentia or if a final judgment has been
rendered in the first action when the second is filed, the dismissal is based on res judicata.
3.2 Note though that the rule does not confine itself to a dismissal of the second action. As to
which action is to be dismissed would depend on judicial discretion and attendant circumstances.
4. The rule on splitting a cause of action applies not only to complaints but also to counter-claims
and cross-claims.37
5. The singleness of a cause of action is determined as follows:
5.1 In an action Ex Delicto or one arising from the fault or negligence of a defendant, the
singleness of a cause of action lies in the singleness of the delict or wrong violating the right of a
person. If however, one injury results from several wrongful acts, only one cause of action arises.
Example: A party who is injured could not maintain an action for damages based on a breach of the
contract of carriage against the owner of the vehicle in which he was riding and another action for
quasi-delict against the driver/owner of the offending vehicle. The recovery under one remedy
necessarily should bar recovery under another. This, in essence, is the rationale for the proscription
in our law againt double recovery for the same act or omission which, obviously stems from the
fundamental rule against unjust enrichment.38
5.2 In an action Ex Contractu or one arising out of or is founded on a contract, the rules are as
follows:
(a) In a single or indivisible contract, only one cause of action arises from a single or several
breaches. Example: In a contract of sale of personal property by installments, the remedies of the
unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the sale, should the vendee’s
failure to pay cover two or more installments, and (3) foreclose the mortgage on the thing sold if one
has been constituted should the vendee fail to pay two or more installments. 39
(b) If the contract provides for several obligations, each obligation not performed gives rise to a
single cause of action. But if upon filing of the complaint several obligations have already matured, all
of them shall be integrated into a single cause of action. Example: Contract for delivery of goods in
part or over a period.
(c) If the contract is divisible in its performance, and the future performance is not yet due, but the
obligor has already manifested his refusal to comply, the contract is entire and the breach is total.
Thus, there can only be one action.40 This is known as the Doctrine of Anticipatory Breach.
IF A PARTY HAS SEVERAL CAUSES OF ACTION
1. He can join his causes of action41 as he may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against the opposing party. It is the assertion of
as many causes of action as a party may have against another in one pleading alone.
2. It has also been defined as the process of uniting two or more demands or rights of action in
one action.42
36
37
Mariscal v. Court of Appeals, 311 SCRA 51
38
Joseph v Bautista, 170 SCRA 540
39
Articles 1484,1486, NCC
40
Blossom & Co v Manila Gas Corporation, 55 Phil 226
41
3. Joinder is subject to the following conditions:
3.1 Party joining the causes of action shall comply with the rule on joinder of parties, which
provides that : All persons in whom or against whom any right to relief is respect to or arising out of
the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where
any question of law or fact common to all such plaintiffs or to all such defendants may arise in the
action.43 Note that the common question of law or fact is relevant only when there are multiple
plaintiffs or defendants.
3.2 Joinder does not allow the inclusion of special civil actions or actions governed by special rules
. Example: An action for a sum of money cannot be joined with an action for iIlegal detainer
3.3 Where causes of action are between same parties but pertain to different venues or
jurisdictions, joinder may be allowed in the RTC provided one of the causes of action falls within its
jurisdiction and venue lies therein.
3.4 When the claims in all causes of action are principally for recovery of money, the aggregate
amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
1. Upon motion of a party or on the initiative of the court, a misjoined cause of action may be
severed and proceeded with separately.44
2. Misjoinder is not ground for a motion to dismiss.
RULE 3 PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION
1. Only natural or juridical persons or entitles authorized by law may be parties in a civil action. 45
They are called: Plaintiff – he is one who has interest in the subject of the action and obtaining the
relied demanded. He may be the claimant in the original complaint, the counter-claimant in the
counter claim, or cross-claimant in a cross-claim or the third party plaintiff and the Defendant – he is
one who has an interest in the controversy adverse to the plaintiff. He may be the original defending
party, the defendant in a counter-claim, or cross-defendant in a cross-claim.
1.1 For ready reference, a counter-claim is any claim which a defending party may have against
an opposing party.46A cross-claim is a claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a counter-claim
therein.47A third party claim is a claim that a defending party may, with leave of court, file against a
person not party to an action for contribution, indemnity, subrogation or any other relief, in respect to
his opponent’s claim.48
2. Juridical persons include:
2.1 The state or any of its political subdivisions, while considered as juridical entities, they can sue
but as a general rule, they cannot be sued without its consent. It is deemed to have given consent
when: (a) it enters into a private contract (b) it enters into a business operation unless it is an incident
42
1 C.J.S., Actions 61
43
44
45
Supra,,Section 1, Rule 3
46
47
48
of its primary government function (c) it sues a private party, unless the suit is to resist a claim (d)
when there is a failure to abide with what the law or contract provides.
A suit is considered as against the state when: (a) it is against the Republic of the Philippines (b) it is
against a government agency or office without juridical personality (c) it is against the officers or
agents of the government and involves a financial liability.
2.2 Corporations, institutions and entities for public interest or purpose, created by law, like
government agencies and water districts.
2.3 Corporations, partnerships, and associations for private interest or purpose to which the law
grants juridical personality, separate and distinct from that of a shareholder, partner or member.
2.4 A partnership having capital of P 3,000.00 that fails to comply with registration requirements. 49
2.5 A dissolved corporation within a 3 year period after dissolution to settle its affairs. 50
2.6 A foreign corporation cannot be a plaintiff in suit when it is transacting business in the
Philippines without a license.
3. Entities authorized by law are (a) recognized labor organizations (b) estate of a deceased
person51 (c) Roman Catholic Church52
4. Entities without legal personality referring to 2 or more persons not organized as an entity with
juridical personality enter into a transaction, they may be sued under the name by which they are
generally or commonly known but in their answer to the complaint, their names and addresses must
be revealed.53
4.1 It can also cover a corporation by estoppel54or partnership by estoppel55
5. A sole proprietorship may not be a party as it is neither a natural, juridical or entity allowed or
authorized by law. If one sues as such, the action may be dismissed on the ground of lack of capacity
to sue. It does not possess a juridical personality separate and distinct from the personality of the
owner of the enterprise.56It cannot sue or file or defend an action in court.57
WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES
1. Where the plaintiff is not a natural or juridical person, or an entity authorized by law, a motion
to dismiss may be filed on the ground that the plaintiff has no legal capacity to sue. Do not confuse it
with one who has capacity to sue but he is not the real party in interest as the ground for dismissal
then is failure to state a cause of action.58
2. Where it is the defendant who is not any of the above, the complaint may be dismissed on the
ground that the “pleading asserting the claim states no cause of action” or ‘failure to state a cause of
action’ , because there cannot be a cause of action against one who cannot be a party to a civil
action.
PARTIES IN INTEREST
1. A real party in interest is the party who stands to be benefited or injured by the judgment or
party entitled to the avails of the suit. Unless otherwise authorized by law of the rules, like in a class
suit, all actions must be prosecuted or defended in the name of the real party in interest.59
49
Article 1772 in relation to Article 1768, NCC
50
Section 122, BP 68
51
Nazareno v. Court of Appeals, 343 SCRA 637
52
Versoza v. Fernandez, 49 Phil 627
53
54
Section 21, BP 68
55
Article 1825, NCC
56
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
57
Juasing Hardware v Mendoza, 115 SCRA 783
58
Balagtas v. Court of Appeals, 317 SCRA 69
59
1.1 A real party in interest-plaintiff is one who has a legal right, while a real party in interest-
defendant is one who has a correlative obligation, whose act or omission violates the legal rights of
the former.60 Hence, the determination of who is a real party in interest goes back to the elements of
a cause of action. Evidently, the owner of the right violated stands to be the real party in interest as
plaintiff and the person responsible for the violation is the real party in interest defendant. 61
1.2 To be a real party in interest, the interest must be real, which is a present substantial interest
as distinguished from a mere expectancy or a future, contingent, subordinate or consequential
interest. It is an interest that is material and direct, as distinguished from a mere incidental interest in
the question.62
1.3 Illustrations: (a) In a case where a lawful possessor is disturbed in his possession, it is the
possessor, not necessarily the owner, who can bring an action to recover the possession. 63 (b) The
parties to a contract are the real parties in interest in an action upon it based on the doctrine of
relativity of contracts under Article 1311, NCC, unless it conveys a benefit to a person not a party
thereto (c) Actions under Articles 1313 and 1381, NCC when the contracts are entered into in fraud
of creditors. (d) Suits by corporations must be in its name, not that of the stockholders or members.
2. When a suit is not brought in the name of the real party in interest, it may be dismissed on the
ground that the complaint states no cause of action.64 Note that the dismissal is not due to lack of or
no legal capacity to sue nor lack of legal personality, as the latter is not ground for dismissal for under
the 1997 Rules of Civil Procedure.
2.1 It states no cause of action because it is not being prosecuted in the name of the real party in
interest.
2.2 Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of his civil rights, does
not have the necessary qualification to appear or does not have the character or representation he
claims. Example: Trustee or Minor, as distinguished from Lack of Legal Personality means that the
plaintiff is not the real party in interest. Dismissal is based on the fact that the complaint states no
cause of action
3. Legal standing means a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the act being challenged. The term interest is
material interest, an interest in issue, and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. Moreover, the interest must be
personal and not one based on a desire to vindicate the constitutional right of some third or unrelated
party.
3.1 However, the concept of ‘standing’ because of its constitutional underpinnings is very different
from questions relating to whether or not a particular party is a real party-in-interest. Although both
are directed towards ensuring that only certain parties can maintain an action, the concept of standing
requires an analysis of broader policy concerns. The question as to who the real party-in-interest is
involves only a question on whether a person would be benefited or injured by the judgment or
whether or not he is entitled to the avails of the suit.65
3.2 Locus standi is defined as a right of appearance in a court of justice on a given question. In
private suits, standing is governed by the “real-parties-in interest” rule found in Section 2, Rule 3 of
the Rules of Court which provides that every action must be prosecuted or defended in the name of
the real party-in-interest.66 In other cases, locus standi is a party’s personal and substantial interest in
a case such that he has sustained or will sustain a direct injury as a result of the governmental act
being challenged. It calls for more than generalized grievance. The term “interest” means a material
interest, an interest in issue affected by the decree, as distinguished from a mere interest in the
60
Gan Hock v. Court of Appeals, 197 SCRA 223
61
Lee v. Romillo, 161 SCRA 589
62
Samaniego v. Aguila, 334 SCRA 438
63
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
64
Tankiko v Cesar, 302 SCRA 559
65
Kilosbayan, Inc. vs. Morato, 246 SCRA 540
66
Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006
question involved or a mere incidental interest.67 Unless a person’s constitutional rights are adversely
affected by the statute or ordinance, he has no legal standing.
4. Be that as it may, we have on several occasions relaxed the application of these rules on legal
standing:
“In not a few cases, the Court has liberalized the locus standi requirement when a petition raises an
issue of transcendental significance or paramount importance to the people. Recently, after holding
that the IBP had no locus standi to bring the suit, the Court in IBP v. Zamora nevertheless entertained
the Petition therein. It noted that “the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as precedents.”68
4.1 Objections to a taxpayer’s suit for lack of sufficient personality, standing or interest are
procedural matters. Considering the importance to the public of a suit assailing the constitutionality of
a tax law, and in keeping with the Court’s duty, specially 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 of procedure and take cognizance of the suit. 69
4.2 There being no doctrinal definition of transcendental importance, the following determinants
formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character
of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more direct and specific interest in raising the
questions being raised.70
CLASSIFICATION OF REAL PARTIES IN INTEREST
1. Indispensable Party is a party without whom no final determination can be had of an action.71
They are those with such an interest in the controversy that a final decree would necessarily affect
their rights, so that the courts cannot proceed without their presence. Example: owners of property
over which reconveyance is asserted are indispensable parties without whom no relief is available
and without whom the court can render no valid judgment.72
1.1 Without the presence of indispensable parties to the suit, the judgment of the court cannot
attain real finality.73 Strangers to a case are not bound by the judgment rendered by the court. 74
1.2 The essential tests of an indispensable party: (a) May relief be afforded the plaintiff without the
presence of the other party? (b) May the case be decided on the merits without impairing the
substantial rights of the other party?75
2. Necessary Party is a party who is not indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already parties or for a complete determination or
settlement of the claim subject of the action.76 A necessary party’s presence is necessary to
adjudicate the whole controversy but whose interests are so far separable that a final decree can be
made in their absence without affecting them.
67
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
68
Velarde v. Social Justice Society, supra at note 22, citations omitted.
69
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989, 176 SCRA 240, 251, citing
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
70
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan, Incorporated v. Guingona,
Jr., 232 SCRA 110 (1994)
71
72
Valenzuela v Court of Appeals, 363 SCRA 779
73
Domingo v Scheer, 421 SCRA 468
74
Lucman v Malawi, GR No. 159794, December 19, 2006
75
PNB v. Militar, 467 SCRA 377
76
2.1 Example: If the plaintiff only sues a one of his joint debtors, the joint debtor who is not sued is
merely a necessary party. As a consequence, the plaintiff only recovers the share of the debt due
from the joint debtor defendant.
2.2 A necessary party is to be impleaded as a party for complete determination of an action, while
an indispensable party is impleaded for a final determination of an action.
3. Pro-Forma Party or nominal party is one who is joined as a plaintiff or defendant not because
such party has any real interest in the subject matter or because relief is demanded, but merely
because the technical rules of pleadings require the presence of such party on the record. 77
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST
The following may sue in behalf of a real party in interest
1. Representatives- actions are allowed to be prosecuted / defended by a representative or by

one acting in a fiduciary capacity but the beneficiary shall be included in the title and shall be deemed
to be the real party in interest.78 Examples of representatives are: (a) trustee of an express trust (b) a
guardian, executor or administrator, or (c) a party authorized by law or the Rules.
1.2 An agent acting in his own name and for the benefit of an unknown principal may sue or be
sued without joining the principal except when the contract involves things belonging to the principal.
This refers to an agency with an undisclosed principal.79
2. Husband and Wife- as a general rule shall sue or be sued jointly, except as provided by law.80
Non joinder of party’s husband is not fatal. It is a mere formal defect. 81
2.1 They are required to sue and be sued jointly as they are joint administrators of the Absolute
Community or the Conjugal Partnership.82
2.2 The exceptions provided by law are when the property relations of husband and wife are
governed by the rules on separation of property83 or one is disposing of exclusive property.84
2.3 Note that the legal provision against the disposition of conjugal property by one spouse without
the consent of the other has been established for the benefit, not of third persons, but only for the
spouse for whom the law desires to save the conjugal partnership from damages that might be
caused. No other party can avail of the remedy other than the aggrieved spouse.85
3. Minors or Incompetents may sue or be sued with the assistance of father, mother, guardian or,
if he has none, a guardian ad litem.86
3.1 A guardian ad litem is a special guardian appointed by the court in which a particular litigation
is pending to represent or assist a minor or an incompetent person involved in or has interest in the
property subject of litigation. His status as such exists only in that particular litigation in which the
appointment occurs.
3.2 Note that the appointment of a guardian ad litem may occur in the following: for minor heirs
when substituting for a deceased party87, incompetency or incapacity of a party88, service of
summons on a minor or incompetent89, and when the best interest of the child require it.90
77
Samaniego v. Aguila, 334 SCRA 438
78
79
Article 1883, NCC
80
81
Miranda v Besa, 435 SCRA 532
82
Articles 96 and 124, Family Code
83
Article 145, Family Code
84
85
Villaranda v Villaranda, 423 SCRA 571
86
87
88
89
90
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or
defendants.
1. The rule on joinder of parties states that: All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction is alleged to exist, whether jointly, severally
or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action.91
2. Joinder of Parties, as a rule, is permissive when there is a question of law or fact common to
all the plaintiffs or defendants. This means that the right to relief or to resist the action arises out of
the same transaction or event or series of transactions or events. Example: action by passengers of a
common carrier for injuries sustained in an accident, there is no community of interest, the extent of
the interest is limited to the extent of damages being claimed by each.
3. It becomes compulsory when the parties to be joined are indispensable parties.92
4. The exception to compulsory joinder of parties is when the subject of the action is proper for a
class suit. The subject matter of the controversy is proper for a class suit when it is one of common
or general interest to many persons so numerous that it is impractical to join all as parties. 93 All the
parties who are interested in the action as plaintiffs or defendants are all indispensable parties but not
all need to be joined.
5. The three requisites of a class suit are:
5.1 The subject matter of the controversy is one of common or general interest to many persons.
There must be an indivisible right affecting many individuals whose particular interest is of
indeterminable extent and is incapable of separation. This requires that the benefit to one is a benefit
to all. Example: A suit filed by minors represented by their parents, in behalf of themselves and
others equally concerned with the preservation of the country’s resources, their generation as well as
generations yet unborn to compel the DENR Secretary to cancel all timber license agreements and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements94. The interest must be common and not independent of each member of the class and
should not conflict with each other. For this reason, owners of subdivision lots in a subdivision cannot
sue as a class because their interest is only in their respective lots.95
5.2 The parties affected are so numerous that it is impracticable to join all as parties
5.3 The parties bringing or defending the class suit are found by the court to be sufficiently
numerous and representative as to fully protect the interest of all.
5.4 To comply with the 2nd and 3rd requisite, the Complaint most allege: (1) existence of a subject
matter which is of common or general interest to many persons, and (2) existence of a class and the
number of persons belonging to that class
6. Improper for a class suit is when a claimant is interested only in collecting his claims and has
no concern in protecting the interests of the others96 or each of the plaintiffs has a separate claim or
injuries not shared in common by the others. Hence, each must prove his own damages. 97
7. It can be brought by the plaintiffs as a class or may be filed against the defendants as a class
7.1 Any party in interest shall have the right to intervene to protect his individual interest.
91
92
93
94
Oposa v Factoran, 224 SCRA 792
95
Tuason v. Register of Deeds, 157 SCRA 613
96
Cadalin v POEA Administrator, 238 SCRA 721
97
Newsweek Inc. v. IAC, 142 SCRA 171
7.2 The general rule, is that the party bringing the suit in his own name and that of others similarly
situated has the right to control the suit, but, it shall not be dismissed or compromised without the
approval of the court.98
EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY PARTY
1. If there is a failure to join an indispensable party, the court must order the plaintiff to amend his
complaint for the purpose of impleading the indispensable party.
1.1 If the plaintiff fails, refuses or the party cannot be sued because he is a non-resident defendant
in a personal action, the complaint must be dismissed.99
2. If there is a failure to join a necessary party, the pleader in the pleading in which a claim is
asserted without joining a necessary party shall (a) set forth the name of the necessary party, if
known and (b) state the reason for omission.
2.1 If the court finds the reason for the omission is not meritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person is obtained.
2.2 If pleader fails to comply with order for inclusion without justifiable cause, it shall be deemed a
waiver of the claim against the party,but the non-inclusion does not prevent the court from proceeding
with the action, and the judgment therein shall be without prejudice to rights of such necessary
party.100
3. Misjoinder of parties is not a ground for dismissal. Parties may be dropped or added by order
of the court on motion of any party or on its own initiative at any stage of the action and on such terms
that are just. Any claim against a misjoined party may be severed and proceeded against
separately.101
3.1 A party is misjoined when he is made a party to the action although he should not be
impleaded. A party is not joined when he is supposed to be joined but is not impleaded.
3.2 While misjoinder or non-joinder is not a ground for dismissal, the failure to obey the order of
the court to drop or add a party is a ground for dismissal.102
IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED
1. The non-consenting party may be made a defendant and the reason therefor shall be stated in
the complaint.103He will be known as the unwilling co-plaintiff.
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN
1. If the plaintiff is uncertain against who of several persons he is entitled to relief, he may join
any or all of them as defendants in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other.104
2. An example is in an action where the owner of goods is not sure whether they were lost in
transit or while it was on deposit in the warehouse of the arrastre operator. He may sue the shipper or
the operator of the warehouse in the alternative although the right against the shipper is based on
admiralty while that against the operator is based on contract. Another is an action for damages
arising from loss of goods due to a collision.
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
1. He may be sued as the unknown owner, heir, devisee or by such other designation as the
case may require, when the identity or name is discovered, the pleading must be amended
98
99
NDC v Court of Appeals, 211 SCRA 422
100
101
102
103
104
accordingly.105 An example is an action to recover real property from several unknown heirs of a
common ancestor.
EFFECT OF DEATH OF A PARTY
1. When a party dies and his claim is not extinguished, it shall be the duty of counsel of the
deceased party to inform the court within 30 days after such death of the : (a) fact of death (b) name
and address of the legal representative of the deceased party.106. If counsel fails to comply, he may
be subject to disciplinary action.
1.1 Once notice is given, the court shall order the legal representative to appear and be
substituted within 30 days from notice.
1.2 Examples of actions that survive are those arising from delict,107 tortuous conduct,108recovery
of real or personal property109 recovery of money arising from a contract, express or implied
1.3 Examples of actions that do not survive are personal actions of support, annulment and legal
separation. The court in this instance will just dismiss. No substitution is required. The remedy is to
file a claim before the probate court under Rule 86.
2. The purpose of substitution is the protection of the right of every party to due process. 110The
non compliance renders the proceedings infirmed because the court acquires no jurisdiction over the
person of the legal representative of the deceased.111
2.1 If no substitution occurs despite knowledge or notice of the death of a party the proceedings
undertaken shall be considered null and void as it amounts to a lack of jurisdiction as the need for
substitution is based on the right of a party to due process.
2.2 Note though that in an ejectment case, the non substitution of the deceased by his legal
representatives because of the failure of counsel to inform the court does not deprive it of jurisdiction.
The judgment may be enforced not only against the defendants but also against the members of their
family, their relatives, or privies who derived their right of possession from the deceased defendant.112
3. Note that heirs may be allowed to be substituted for the deceased without requiring the
appointment of an executor or administrator and the court can appoint a guardian ad litem for minor
heirs. When the defendant does not have any heirs, the court shall require the opposing party to
procure the appointment of an executor or administrator. This can also occur when no legal
representative is named or if one is named, he fails to appear within the specified period. The
expenses if any, can be recovered as costs.
3.1 Heirs may designate one or some of them as their representative before the trial court.113
4. There is no requirement for summons as it is the order of substitution and its service that
effects the substitution of the deceased by his representative.
5. The effect of death is to terminate the attorney-client relationship. A deceased client has no
personality and cannot be represented by an attorney.114Neither does he become counsel for the
heirs of the deceased unless his services are engaged by the heirs. 115
DEATH/SEPARATION OF A PUBLIC OFFICER
1. If sued in his public capacity and he dies, resigns or otherwise ceases to hold office. The
action may be maintained and continued by or against his successor, if within 30 days after
successor assumes the office or such time as granted by the court – it is satisfactorily shown by a
105
106
107
Aguas v Llamas, 5 SCRA 959
108
Melgar v. Buenviaje, 179 SCRA 196
109
Board of Liquidators v Kalaw, 20 SCRA 987
110
Torres v Court of Appeals, 278 SCRA 79
111
Brioso v Mariano, 396 SCRA 549
112
Florendo v. Coloma, 129 SCRA 304
113
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
114
Lavina v. Court of Appeals, 171 SCRA 691
115
Lawas v Court of Appeals, 146 SCRA 173
party that there is a substantial need for continuing and maintaining it and that the successor adopts
or continues or threatens to continue the action of his predecessor.116
2. Before substitution and there is no express assent, the public officer shall be given reasonable
notice of the application and be accorded an opportunity to be heard.
3. The requisites for a valid substitution of a public officer who has sued or been sued in his
official capacity are: (a) satisfactory proof by any party that there is a substantial need for continuing
or maintaining the action (b) the successor adopts or continues or threatens to adopt or continue the
acts of his predecessor (c) the substitution is effected within 30 days after the successor assumes
office or within the time granted by the court, and (d) notice of the application to the other party. 117
4. The failure to make the substitution is ground for the dismissal of the action.
EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM
1. If the action is for the recovery of money that arises from a contract, express or implied, and
the defendant dies before entry of a final judgment the rule is – it will not be dismissed but shall be
allowed to continue until entry of judgment, a favorable judgment obtained shall be enforced in the
manner provided by the rules for prosecuting claims against the estate of a deceased person.118
2. Hence, in case of the death of the obligor the rules are: (a) If he dies before the action is filed,
a money claim must be filed in the testate or intestate proceedings (b) if he dies during the pendency
of an action, the action continues until entry of judgment, and the judgment claim is then filed with the
testate or intestate proceedings. It must be noted that a money claim judgment need not be proven
because it is conclusive. Note further, that if property has been levied upon before death, it can
disposed of in the manner provided by the rules on execution of judgments because it has already
been segregated from the estate. If there is a deficiency, a money claim can be filed subsequently.
2. If the claim does not arise from a contract, like claims for recovery, enforcement of a lien or
torts, the rules are: (a) if he dies before the action is filed, it may be filed against the executor or
administrator (b) if already filed , it continues to final judgment and may be executed on as against
the executor or administrator.119
3. In a case for ejectment where the defendant died before the case could be decided and
without being able to testify on his counterclaim for damages. The trial court dismissed the ejectment
suit and ordered the plaintiff to pay the wife of the defendant moral damages and attorney’s fees. The
plaintiff contends on appeal that the counterclaim should have been dismissed pursuant to Rule 3,
Section 21 (old rule). Held: The argument is misplaced, defendant was the plaintiff in his
counterclaim, the rule is not applicable as it pertains to a defendant who dies before final judgment.
In this case, it is the plaintiff who died and all that is required is a timely motion for substitution. No
recovery though can be allowed as no evidence was adduced.120
4. If a claim involves a conjugal debt that was not brought and one of the spouses die before
filing, the claim must be brought in the testate or intestate proceedings of the deceased spouse. 121
5. If it is the plaintiff who dies, the rules are: (a) if action is purely personal to him, the action is
abated (b) if action is not purely personal, it continues but counsel must give notice of death.
EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION
1. The court, upon motion with notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his guardian or guardian ad litem.122
EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION
116
117
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
118
119
120
UST v Court of Appeals, GR No. 124250, October 18, 2004
121
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
122
Supra, Section 3 and 18, Rule 3
1. The action may be continued by or against the original party, unless the court upon motion
directs the person to whom interest is transferred to be substituted in the action or joined with the
original party.123
2. The rule refers to a transfer pendente lite. The transferee pendente lite shall stand exactly in
the shoes of the transferor. Consequently, any judgment will be binding upon him.
3. A transferee pendent elite does not have to be included or impleaded by name in order to be
bound by the judgment because the action or suit may be continued for or against the original party or
the transferor and still binding on the transferee.124
4. In a case on appeal where the transferee pendente lite did not appeal, he nevertheless was
benefited by the appeal of the transferor pendent lite.125
INDIGENT/PAUPER LITIGANT
1. An indigent or pauper litigant is one who litigates on a claim that he has no money, or property
sufficient and available for food, shelter and basic necessities for himself and his family.126
2. An indigent or pauper litigant must file an ex-parte application for authority to litigate as an
indigent that is too be resolved by the court after hearing.
2.1 Attached to the motion is an affidavit attesting to the fact that he does not earn a gross income
of PHP 4,000.00 in Metro-Manila, or PHP 3,000.00 elsewhere and has no real property with a fair
market value of PHP 50,000.00.
2.2 Said affidavit must be supported by another affidavit of a disinterested person. Note that
recently, an indigent litigant has been defined as one (a) whose gross income and that of their
immediate family does not exceed an amount double the monthly minimum wage of an employee and
(b) who does not own real property with a fair market value as stated in the current tax declaration of
more than PHP 300,000.00.
2.3 If there is any falsity in the affidavit or that of the disinterested person, it shall constitute
sufficient ground to dismiss the action or strike out the pleading, without prejudice to whatever
criminal liability is incurred.127
3. The effect of being allowed to litigate as an indigent or pauper litigant are: (a) exemption from
the payment of docket fees and other lawful fees (b) exemption from TSN fees which the Court may
order to be furnished but, the amounts due shall be a lien on a favorable judgment unless the Court
orders otherwise.
4. The allowance to litigate as an indigent or pauper litigant can be contested at any time before
judgment is rendered by any adverse party. If found to be meritorious, the proper fees are assessed
and are to be collected. If it is not paid, execution shall issue on the payment thereof without
prejudice to other sanctions.
5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR
1. In any action involving the validity of any treaty, law, ordinance, executive order, presidential
decree, rule or regulation, the court, in its discretion, may require the appearance of the Solicitor
General, who may be heard in person or through a representative duly designated by him. 128
123
124
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
125
Jocson v Court of Appeals, GR 88297, March 22, 1990
126
Supra, Section 21
127
Section 19, Rule 141, Rules of Court
128
RULE 4 – VENUE OF ACTIONS
VENUE DEFINED AND DISTINGUISHED
1. Venue is the place where the action is to be commenced and tried. It has also been defined as
the proper location for the trial of a case.
2. Distinguishing it from jurisdiction: (a) venue is the place where action is commenced and
tried, jurisdiction is the authority of a court to hear and decide the action (b) venue may be
waived, jurisdiction over the subject matter cannot be waived, but that over the person can be waived
(c) venue may be the subject of a written agreement, jurisdiction cannot be subject of a written
agreement129 (d) a court cannot motu-propio dismiss on improper venue, while if it has no
jurisdiction, a court can motu-propio dismiss the action.
3. Venue establishes a relation between the plaintiff and defendant, while jurisdiction establishes
a relation between the court and subject matter.
4. Improper venue is not jurisdictional. To illustrate: If a case for illegal detainer is filed in the
MTC-Manila but should have been filed in the MTC-Baguio as the property is located in Baguio, the
dismissal is due to improper venue as every MTC has jurisdiction over illegal detainer cases.
Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional.
RULES ON VENUE
1. If it is a Real Action or one that affects title to or possession of real property, or an interest
therein, it shall be commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved or a portion thereof is situated. Forcible Entry and Detainer actions
are to be commenced and tried in the Municipal Trial Court which has jurisdiction over the area
wherein the real property involved, or any portion thereof, is situated. 130
1.1 Is the complaint for cancellation of a real estate mortgage with damages, a real or personal
action? It is a real action, the controlling factor in determining venue of such a case is the primary
objective for which it is filed. An action for cancellation of a real estate mortgage is necessarily an
action affecting title to real properties since the primary objective is to recover the properties that the
bank had foreclosed on.131
2. If it is a Personal Action or one that is brought for the recovery of personal property, for the
enforcement of a contract or recovery of damages for its breach of for the recovery of damages due
to injury to person or property or such all other actions shall be commenced or tried where the plaintiff
or any of the principal plaintiffs reside or any of the defendants reside, or if a non-resident defendant,
where he may be found at the election of the plaintiff132
2.1 Reside means the place of abode, whether permanent or temporary, as distinguished from
domicile or the fixed permanent residence, where if one is absent he intends to return.
2.2 In personal actions, it is the residence of the proprietor, not the business address of the sole
proprietorship that is considered to determine venue as a sole proprietorship has no legal
personality.133
2.3 R engaged the services of L as geodetic surveyor to subdivide two parcels of land located in
Batangas. As payment for L’s services, R agreed to given him one lot. After the survey, R delivered to
L possession of one lot as payment for his services. However, R failed to deliver to L the tile of the lot.
L, who resides in Quezon City, filed with the RTC of Quezon City an action against R for specific
performance to compel R to deliver to him the title to the lot. R moved to dismiss on the ground of
improper venue, contending that since his is a real action, the complaint must be filed in the RTC of
Batangas where the lot is situated. Is R correct? No, R is not correct. This action for specific
129
NOcum v Tan, 470 SCRA 639
130
131
Go v UCPB, GR No. 156187, November 11, 2004
132
133
Mangila v Court of Appeals, 387 SCRA 162
performance is a personal action. The venue therefore, was properly laid in Quezon City where the
plaintiff resides. It is not a real action because plaintiff L is not seeking the recovery of the lot as he is
already in possession thereof. He is merely asking the delivery of the title to him, which is a personal
action.134
3. If the defendant is a non-resident or one who does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff, or any property of said defendant
located in the Philippines, the action may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is situated or found.135
3.1 Actions affecting the personal status of the plaintiff refers to personal actions of annulment of
marriage, nullity of marriage, legal separation, declaration of presumptive death
3.2 The provision refers to a Quasi in Rem action in which an individual is named as a defendant,
and the purpose of the action is to subject his interest therein to an obligation or lien burdening the
property.
3.3 A non-resident alien who cannot be found can sue and be sued as by filing his complaint, he
submits to the jurisdiction of the Court, even if he has never been able to enter the Philippines.136
THE RULES ON VENUE ARE NOT APPLICABLE
1. In cases where a specific rule or law provides otherwise as below illustrated:
1.1 Quo Warranto proceedings may be instituted in the Supreme Court, Court of Appeals or the
Regional Trial Court exercising territorial jurisdiction over the area where the respondent/s reside. If
the Solicitor General commences the action, he may do so in the Supreme Court, Court of Appeals
or the Regional Trial Court of Manila.137
1.2 The criminal or civil action for damages due to libel can only be instituted either in Regional
Trial Court of the place where he holds office or in the place where the alleged libelous article was
printed and first published; and if the offended parties are private individuals, the venue shall be in the
Regional Trial Court of the place where the libelous article was printed and first published or where
any of the offended parties actually resides at the time of the commission of the offense.138
1.3 Intracorporate Controversies are to be filed in the Regional Trial Court where the principal
office of the corporation is located.139
2. Where the parties have validly agreed in writing before the filing of the action as to exclusive
venue.140
2.1 Any agreement as to venue must be in writing and for exclusivity, the intent must be clear,
otherwise, it will be interpreted to allow for an additional venue.
2.2 The freedom of the parties to stipulate on the venue is however subject to the usual rules on
contract interpretation. Where the provision appears to be one-sided as to amount to a contract of
adhesion, the consent of the parties thereto may well be vitiated and the venue stipulation will not be
given effect.141
134
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
135
136
Dilweg v Philipps, 12 SCRA 243
137
138
Article 360, Revised Penal Code
139
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
140
141
Sweet Lines v Teves, 83 SCRA 361
2.3 The rule on venue is party oriented. It looks to the convenience of the parties. Thus the rule on
venue as to real actions presumes that the place where the subject real property is located is
convenient to the parties. Hence, the rule as to venue can yield to an agreement as to exclusive
venue. Section 4, Rule 4 applies to both real and personal actions as long as the requisites are met.
2.4 Venue as stipulated in the promissory note shall govern notwithstanding the absence of a
stipulation as to venue in an accompanying surety agreement as the latter can only be enforced in
conjunction with the former.142
HOW VENUE IS QUESTIONED
1. Venue may be questioned in (a) in a motion to dismiss143, or (b) in an answer by way of an

affirmative defense144. If it is not questioned, it is deemed waived.
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS
1. The procedure in Municipal Trial Court shall be the same as in the Regional Trial Court,
except when (a) a provision applies only, expressly or impliedly, to a particular court, or (b) In civil
cases covered by the Rules on Summary Procedure
2. An example of a provision that applies only to a Municipal Trial Court is that which refers to an
appeal taken from an order of the lower court dismissing the case without trial on the merits.145
PROCEDURE IN REGIONAL TRIAL COURTS
RULE 6- KINDS OF PLEADINGS
PLEADING DEFINED
1. It is a written statement of the respective claims and defenses of the parties submitted to the
court for appropriate judgment.146
1.1 Pleadings are necessary to secure the jurisdiction of the court so that the subject matter can
be presented for its consideration in the manner sanctioned by the rules of procedure.
1.2 They are intended to secure a method by which the issues may be properly laid before the
court.147
1.3 They are designed to present, define and narrow the issues, to limit proof to be submitted in
the trial, to advise the court and the adverse property of the issues and what are relied upon as
causes of action or defenses.
2. The pleadings that are allowed are: (a) Claims of a party are asserted in the complaint,
counterclaim, cross-claim, 3rd party complaint (4th…..), or complaint in intervention (b) Defenses of a
party are alleged in the answer to the pleading asserting a claim against him (c) Reply to the
answer148
2.1 Under the Rules on Summary Procedure, the only pleadings allowed are the complaint,
compulsory counterclaim, cross claim pleaded in the answer, and the answers thereto.
142
Philippine Bank of Communications v Lim, 455 SCRA 714
143
Supra, Section 1 (c) ,Rule 16
144
145
146
147
Santiago v. De Los Santos, 61 SCRA 146
148
CONSTRUCTION OF PLEADINGS
1. All pleadings are to be liberally construed so as to do substantial justice.149
2. While such is the rule, a party is strictly bound by the allegations, statements or admissions
made in his pleadings and cannot be permitted to take a contradictory position.150
2.1 In case there are ambiguities in pleadings, the same must be construed most strongly against
the pleader and that no presumptions in his favor are to be indulged in. This rule proceeds from the
theory that it is the pleader who selects the language used and if his pleading is open to different
constructions, such ambiguities are at his peril.
SPECIFIC KINDS OF PLEADINGS
1. Complaint- which is the pleading alleging the plaintiff’s cause of action or causes of action.
1.1 The names/residences of the plaintiffs and defendants must be stated in the complaint151
2. Answer- which is a pleading in which a defending party sets forth his defenses152.
2.1 Its essential purpose is to secure joinder of the issues and not to lay down evidentiary
matter.153
2.2 The following are the kinds of defenses154 that may be interposed in an answer are:
(a) Negative Defense which is a specific denial of a material fact or facts alleged in the pleading of
a claimant essential to his cause/s of action. A specific denial is made by155: (1) Specifically denying
the material averment in the pleading of the adverse party and setting forth the substance of the
matter upon which he relies for such denial (2) Deny only a part of the averment by specifying that so
much of it is true and deny the remainder (3) Allegation of lack of knowledge or information
sufficient to form a belief as to the truth of the material averment in the pleading of the adverse party.
(b) Affirmative Defense which is an allegation of new matter, which although hypothetically
admitting the material allegations in the pleading would nevertheless bar or prevent recovery. They
include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, or any other matter by way of confession and avoidance.
2.3 The purpose of requiring the defendant to make a specific denial is to make him disclose the
matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the
matter which he relied upon to support the denial.156
2.4 Note that the rule that a defending party who sets up an affirmative defense hypothetically
admits the allegations does not apply if the defense set up is any of the grounds for extinguishment of
the obligation. The effect is that the defending party is deemed to have admitted the validity of the
obligation, and if the motion to dismiss is denied, what is left to be proven is the fact of payment or
non-payment.
2.5 Any of the grounds for a motion to dismiss may be pleaded as an affirmative defense. He may
then move for a preliminary hearing as if a timely motion to dismiss has been filed.157
149
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
150
Santiago v. De Los Santos, 61 SCRA 146
151
152
153
Naga Development Corporation v Court of Appeals, 41 SCRA 105
154
155
156
Aquintey v. Tibong, GR No. 166704, December 20, 2006
157
3. Counterclaim- which is any claim which a defending party may have against an opposing
party. 158
3.1 Counterclaims may be compulsory or permissive. They are distinguished as follows: (a) In a
compulsory counterclaim, it arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim, while in a permissive counterclaim, it
does not arise out of or is connected with the transaction or occurrence constituting the subject matter
of the opposing party’s claim (b) a compulsory counterclaim is barred if not set up in the answer,
while a permissive counterclaim is not barred even if not set up (c) the plaintiff is not required to
answer a compulsory counterclaim and he cannot be in default, while a permissive counterclaim must
be answered after payment of docket fees, otherwise a party may be held in default (d) a compulsory
counterclaim is not an initiatory pleading so as to required a certification as to non-forum shopping,
while a permissive counterclaim is an initiatory pleading.
3.2 The requisites of a compulsory counterclaim are:(a) It arises out of or is necessarily connected
w/the transaction or occurrence that in the subject matter of the party’s claim (b)It does not require for
adjudication the presence of 3rd parties over whom the court cannot acquire transaction (c) It must
be cognizable by the regular courts of justice (d) It must be within the jurisdiction of the court both as
to amount and the nature thereof, except that in an original action before the RTC, counterclaim is
considered compulsory regardless of amount (e) It must already be existing at the time
defending party files his answer 159
3.3 The requisites of a permissive counterclaim are: (a) It does not require for adjudication the
presence of 3rd parties over whom the court cannot acquire jurisdiction (b) It must be cognizable by
the regular courts of justice (c) It must be within the jurisdiction of the court both as to amount and the
nature thereof, except that in an original action before the RTC, counterclaim is considered
compulsory regardless of amount
3.4 To determine whether a counterclaim is compulsory or not, the Court has devised the following
tests: (a) are the issues of fact or law raised by the claim and counterclaim largely the same? (b)
would res judicata bar a subsequent suit on defendant’s claim absent a compulsory counterclaim? (c)
will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s
counterclaim? and (d) is there any logical relation between the claim and counterclaim. If the answers
are all in the alternative, it is a compulsory counterclaim.160 Item (d) is also known as the “compelling
test of compulsoriness” as conducting separate trials of the respective claims of the parties would
entail a substantial duplication of effort and time by the parties and the court.161
3.5 Illustrations of compulsoriness are: (a) expenses for cultivation even if inconsistent with the
defense of ownership in an action to recover real estate162 (b) expenses for the preservation of
property in action for annulment of title on the ground of fraud 163(c) damages for usurpation of the
produce in action to quiet title164 (d) cost of improvements in an action for recovery of ownership or
possession165
3.6 A compulsory counterclaim that is not yet in existence at the time of the filing of an answer
may be presented or set-up by a supplemental pleading before judgment.166
3.7 A compulsory counterclaim may implead persons not parties to the original complaint as their
presence is required for granting complete relief in the determination of a counter-claim or cross
claim, the court shall order them brought in as defendants, if jurisdiction over them can be
obtained.167 Summons must thus be served upon them as they must answer the counterclaim as they
158
159
Supra, Section 7, Rule 6, Section 8, Rule 11
160
Reyes De Leon v. Del Rosario, 435 SCRA 232
161
Quintanilla v. Court of Appeals, 279 SCRA 397
162
Camara v. Aguilar, 94 Phil 527
163
Maclan v. Garcia, 97 Phil 119
164
Doliente v. Blanco, 87 Phil 67
165
Baclayan v. Court of Appeals, 182 SCRA 761
166
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
167
cannot rely on the rule that the defendant in the counterclaim is deemed to have adopted the
allegations of the complaint in his answer.168
4. A cross claim is a claim by one party against a co-party arising out of a transaction/occurrence
that is the subject matter either of the original action or the counter-claim. It may include a claim that a
party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim
asserted in the action against the cross-claimant. 169
4.1 Note that counterclaims may be asserted against an original counter-claimant and that cross-
claims may also be filed against an original cross-claimant.170
5. A reply is a pleading, the office or function of which is to deny or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make an issue
as to such matters.
5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff wishes to interpose
any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended/supplemental complaint.
5.2 If the defense is based on an actionable document, it must be replied to, otherwise it is
admitted.
6. A 3rd Party Complaint is a claim that a defending party may, with leave of court, file against a
person, not a party, called 3rd party defendant for contribution, indemnity, subrogation or any other
relief in respect of his opponent’s claim.171
6.1 Examples: (a) Contribution- A sues X for collection of money based on a promissory note
signed jointly and severally with Y. X may file a complaint against Y for contribution (b)Indemnity- S,
as surety, is sued for recovery of the obligation of M. S may file a complaint against M for whatever
amount he may be adjudged to pay as surety (c)Subrogation- X, as lessor, sues Y, as lessee for
repairs. Y may file a complaint against his sub-lessee who filed to comply with the obligation to repair
(d) Other Relief- X bought land from Y. Later X is sued by A for recovery of the land. X may file a
complaint against Y for his warranty against eviction.
6.2 An answer to a 3rd party complaint may include (a) defenses, counterclaims or cross-claims,
including such defenses that the 3rd Party Plaintiff may have against the original plaintiff’s claim, and
(b) In proper cases, he may assert a counter-claim against the original plaintiff in respect to his claim
against the 3rd party plaintiff.172 An example is: a reinsurer (3rd party defendant) may set up in his
answer the defense alleged by defendant insurer that loss is caused by plaintiff insured. However the
3rd party defendant cannot file a counterclaim against the original plaintiff as there is no privity of
contract between them.
WHEN NEW PARTIES CAN BE BROUGHT
1. If the presence of others besides the parties is required for the granting of full relief in the
determination of a counter-claim or cross- claim the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained173.
RULE 7 – PARTS OF A PLEADING
PARTS OF A PLEADING
1. The parts of a pleading are Caption, Body, Signature, Address, Verification and Certification
against Forum Shopping.
168
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
169
170
171
172
173
SPECIFICS OF THE PARTS OF A PLEADING
1. The Caption sets forth the (a) Name of the court (b) Title of the action, this includes an
indication of the name of the parties, who are required to be named in the original complaint/petition.
In subsequent pleadings, the name of the first party on each side is sufficient with an appropriate
indication when there are other parties. (c) Docket Number , if one has already been assigned.174
1.1 In an appeal, the rules175 requires all names to be indicated in the Notice of Appeal and
Record on Appeal
1.2 In case of a variance between the caption and allegations, the latter will prevail. The court may
grant a relief warranted by the allegations and proof even if no such relief is prayed for.176
2. The Body sets forth its designation, the allegations or a party’s claims / defenses, the relief
prayed for, and the date of the pleading.
2.1 The allegations in the body shall be divided unto paragraphs so numbered to be readily
identified. Each shall contain Statement of a single set of circumstances so far as it can be done with
convenience. A paragraph may be referred to by its number in all succeeding pleadings.
2.2 Headings must be used when 2 or more causes of action are joined, the statement of the first
shall be prefaced by : First Cause of Action etc. When: 2 or more paragraphs are addressed to one or
several causes of action in the complaint, they shall be prefaced by: Answer to the First Cause of
Action and so on. If it addresses several causes of action, the paragraphs shall be prefaced
accordingly.
2.3 Relief should be specified but it may add a general prayer for such further or other relief as
may be deemed just and equitable. The relief does not constitute a part of the statement of the cause
of action. It does not serve to limit or narrow the issues presented. 177It is the material allegations, not
the legal conclusions that determines the relief that a party is entitled to. 178A court may grant a relief
not prayed for as long as warranted by the allegations and the presented proof.
2.4 Every pleading is required to be dated.
3. Signature and Address- every pleading must be signed by the party or counsel representing
him, stating in either case his address which should not be a post office box.
3.1 Note the word “or” because a party may litigate / defend Pro Se or for himself without aid or
counsel. This applies even if a party is already represented by counsel.
3.2 Only the signature of either party operates to validly convert a pleading from one that is
unsigned to one that is signed.179
3.3 Significance of Counsel’s Signature – it is a Certificate by him that: (a) He has read the
pleading (b)To the best of his information, knowledge and belief there is good ground to support it (c)
It is not interposed for delay
3.4 If the pleading is unsigned it produces no legal effect. However, the court in its discretion can
allow the deficiency to be remedied if it shall appear that it was due to inadvertence and not intended
for delay.180
3.5 An address is required for service of pleadings or judgments
174
175
Supra, Sections 5 and 6, Rule 41
176
Lorbes v. Court of Appeals, 351 SCRA 716
177
UBS v. Court of Appeals, 332 SCRA 534
178
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
179
Republic v. Kenrick Development Corporation, 351 SCRA 716
180
3.6 Disciplinary action may be imposed on counsel in relation to the rule when (a) He deliberately
files an unsigned pleading (b) Signs a pleading in violation of the Rule (c) Alleges scandalous
or indecent matter (d) Fails to promptly report to the court a change in his address
4. A Verification is an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge and/or is based on authentic records..
4.1 The verification requirement is intended to secure an assurance that the allegations in the
pleading are true and correct and not the product of the imagination or a matter of speculation and
that it is being filed in good faith.181
4.2 If a pleading that is required to be verified is not verified or contains a verification that does not
comply with what is required by the rules, it shall be treated as an unsigned pleading.
4.3 The court may order the correction of the pleading or act on an unverified pleading if the
attending circumstances are such that strict compliance would not fully serve substantial justice,
which after all, is the basic aim of the rules of procedure.182
4.4 A pleading need not be verified, except when otherwise specifically required by law or the
183
rules .
4.5 A Verification is required under rules governing (a) cases covered by the Rules on Summary
Procedure (b) Petition for relief from judgment / order184 (c) Petition for review185 (d) Appeal by
certiorari186 (e)Petition for annulment of judgment 187 (f) Injunction188 (g) Receivership189 (h)
Support190 (i) 69) Certiorari, Prohibition or Mandamus191 (j) Quo Warranto192 (k) Expropriation193 (l)
Forcible Entry / Detainer194 (m) Indirect Contempt 195(n) Petition for a writ of habeas corpus, writ of
amparo, writ of habeas data (o) Petition for cancellation or correction of entries in the Civil Registry
(p) Petition for the constitution of a family home (q) Petition for Declaration of Absolute Nullity of
Marriage, Annulment of a Voidable Marriage, Legal Separation (r) Petition for Guardianship (s)
Applications for TRO or Injunction.
5. Certification against Forum Shopping is executed by the plaintiff or principal party who shall
certify under oath in the Complaint or Initiatory Pleading asserting a claim or relief or in sworn
certification annexed thereto and simultaneously filed therewith : (a) That he has not therefore
commenced any action or filed any claim involving the same issues in any court, tribunal or quasi
judicial agency and to the best of his knowledge, no such other claim or action is pending therein (b)
If there is such other pending action or claim, a complete statement of the present status thereof (c)
That if he should thereafter learn that the same or similar action has been filed or is pending,
he shall report that fact within 5 days therefrom to the court wherein his complaint / initiatory pleading
has been filed.196
5.1 The lack of a certification is not curable by amendment, but such shall be cause for dismissal
of the complaint. The dismissal shall be without prejudice unless otherwise provided, upon motion
and after hearing.197
181
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
182
Robert Development Corporation v. Quitain, 315 SCRA 150
183
184
185
186
187
188
189
190
191
Supra, Sections 1,2,3, Rule 65
192
193
194
195
196
197
Castillo v Court of Appeals, 426 SCRA 369
5.2 The non-complaince with any of the undertakings or the submission of a false certificate shall
constitute indirect contempt without prejudice to corresponding administrative and criminal actions.
Provided, that if the acts of the party or counsel clearly constitute will and deliberate forum shopping,
it shall then be ground for summary dismissal with prejudice, and shall constitute direct contempt as
well as cause for administrative sanctions.
5.3 Forum Shopping exists when as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari, in another, or when he institutes two or more
actions or proceedings grounded on the same cause, on the gamble that one or the other court would
make a favorable disposition. The most important factor in determining the existence of forum
shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to
rule on the same or substantially the same reliefs.198
5.4 It also occurs when a party attempts to have his action tried in a particular court or jurisdiction
where he feels he will receive the most favorable judgment.
5.5 It has been said to exist also where the elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in another. Hence, the following requisites concur:
(a) identity of parties, or at least such parties represent the same interests in both actions (b)
identity of rights asserted and relief prayed for, the relief being founded on the same facts, and
(c) identity of the two preceding particulars is such that any judgment rendered in the other action will,
regardless, of which party is successful, amount to res judicata in the action under consideration. 199
5.6 The purpose of the certification against forum shopping is to prohibit and penalize the evils of
forum shopping.200 Forum Shopping is a deplorable practice because it results in unnecessarily
clogging of the already heavily burdened docket of the courts.201
5.7 The execution of the certification is required to be accomplished by the petitioner himself as it
is the petitioner himself who has actual knowledge of whether or not he has initiated similar actions or
proceedings in different courts or agencies.
5.8 If there are several plaintiffs, the general rule is that all of them must sign but it must be noted
that there is jurisprudence to the effect that: (a) the execution by one of the petitioners or plaintiffs in
a case constitutes substantial compliance where all the petitioners, being relatives and co-owners of
the properties in dispute, share a common interest in the subject matter of the case. 202 (b) the case is
filed as a collective raising only one cause of action or defense 203 (c) the signing by 1 spouse
substantially complies as they have a common interest in the property204 or is signed by husband
alone is substantial compliance as subject of case is recovery of conjugal property 205 (d) 2 of the
parties did not sign as they were abroad. It was considered reasonable cause to exempt them from
compliance with the requirement that they personally execute the certificate206
5.9 If the plaintiff or petitioner is a juridical person, it can only execute the certification through
properly delegated individuals.207 Note though that there are corporate officers who may sign the
certification without need of a board resolution, namely: (a) Chairperson of the Board (b) President (c)
General Manager or Acting General Manager (d) Personnel Officer, and (e) Employment Specialist in
a labor case.208 The submission in the motion for reconsideration of the authority to sign the
verification and certification constitutes substantial compliance with procedural requirements. 209
198
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
199
TADI v Solilapsi, 394 SCRA 269
200
BA Savings Bank v Sia, 336 SCRA 484
201
Ruiz v Drilon, 209 SCRA 695
202
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
203
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA 504
204
Dar v Alonso Legasto, 339 SCRA 306
205
Docena v Lapesura, 355 SCRA 658
206
Hamilton v Levy, 344 SCRA 821
207
National Steel Corporation v. Court of Appeals, 388 SCRA 85
208
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
209
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
5.10 Counsel has been allowed to sign the certification in the following instances: (a) Where the
counsel is the Solicitor General has been deemed to be substantial compliance 210 (b) Certification by
acting regional counsel of NPC was accepted because it was his basic function to prepare pleadings
and to represent NPC – Mindanao – as such he was in the best position to know and certify if a
similar action was pleading or had been filed211 (c) Certification was signed by counsel. The
procedural lapse may be overlooked in the interest of substantial justice.212 (d) Certification was
executed by an in house counsel is sufficient compliance with the Rules213 (e) With respect to a
corporation, the certification against forum shopping may be signed for and its behalf by a specifically
authorized lawyer who has personal knowledge of the facts required to be disclosed in such document.214
5.11 The Supreme Court has gone to the extent of invoking the power to suspend the rules by
disregarding the absence of the certification in the interest of substantial justice.215
5.12 As a general rule, the certification cannot be filed at a later date. However, in some instances
the Supreme Court has allowed the late filing when special or compelling reasons justify the same,
such a the substantive merit of the case.216
5.13 Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by filing a
notice of dismissal at any time before service of the answer or of a motion for summary judgment. As
a general rule, such dismissal is without prejudice. Suppose P filed a complaint against D, and before
service of the answer or of motion for summary judgment, P caused the dismissal of his complaint by
filing a notice of dismissal. Months later, P filed the same complaint against D. In the certification on
non-forum shopping appended to the second complaint, P failed to mention about the prior filing and
dismissal of the first case. Is P’s failure to mention about the prior filing and dismissal of the first case
fatal?
No. An omission in the certification on non-forum shopping about any event or case which would not
constitute res judicata or litis pendentia is not fatal. In the problem presented, the dismissal of the first
case would not constitute res judicat217a precisely because such dismissal is without prejudice to the
refilling of the case.218
5.14 Also, a case pending before the Ombudsman cannot be considered for purposes of
determining forum shopping as the power of the Ombudsman is only investigative in character and its
resolution cannot constitute a valid and final judgment because its duty is to file the appropriate case
before the Sandiganbayan.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION
1. The distinctions are: (a) A verification is a sworn statement that the allegations are true and
correct based on personal knowledge and/or authentic records, while a certification states that no
action or claim involving the same issues have been filed or is pending (b) A verification is required in
complaints, initiatory pleadings and some responsive pleadings, while a certification is required only
in complaints and initiatory pleadings (c) A defect in a verification is curable by amendment or an
order to verify, while that in a certification cannot be cured by amendment (d) A defect in the
verification does not immediately give rise to a ground for dismissal, while a defect in a certification
gives rise to a ground for dismissal (e) a verification may be signed by counsel, while a certification
must be signed by a party.
RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS
210
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
211
Robern Development Corporation v Quitain, 315 SCRA 150
212
Sy Chin v Court of Appeals, 345 SCRA 673
213
Mercury Drug Corporation v Libunao, 434 SCRA 404
214
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
215
De Guia v. De Guia, 356 SCRA 287
216
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy v. Landbank, 336 SCRA
419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga v. Manalo, 458 SCRA 325
217
Sevilleja v. Laggui, 362 SCRA 715
218
Roxas v. Court of Appeals,363 SCRA 207
HOW ALLEGATIONS ARE MADE IN A PLEADING
1. In general, a pleading must contain in a methodical and logical form a plain concise and direct
statement of the ultimate facts on which the party pleading relies for his claim or defense219
1.1 Ultimate facts are the essential facts constituting the plaintiff’s cause of action. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.
1.2 Examples of ultimate facts: (a) That an obligation has been constituted, that party must
comply, that there is no compliance (b) That party is the owner of property, that he has a right to its
use/possession, that he has been dispossessed
1.3 A pleading must only aver ultimate facts as no conclusions are supposed to be averred.
Conclusions are for the court to make.
2. Mere evidentiary facts or those that are necessary for the determination of the ultimate facts
are to be omitted. Evidentiary facts are the premises upon which conclusions of ultimate facts are
based.
2.1 Examples of evidentiary facts are: (a) That the obligation as covered by a promissory note was
executed before specified persons or that defendant has several letters indicating intention to/or not
to pay (b) How property was acquired
2.2 They are not supposed to be averred as evidentiary matters must be presented to the court
during the trial of the case, not in the pleadings.
3. Laws may be pleaded only if the pleading is an Answer.
PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES
1. A party may set forth two or more statements of a claim or a defense alternatively or
hypothetically, either in one cause of action or defense or in separate causes of actions or defenses.
If two or more statements are made in the alternative and if one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.220
2. The provision recognizes the possibility that the liability of the defendant may possibly be
based on two causes of action or that the defendant may possibly have alternative defenses, even if
they may conflict with each other.
2.1 Examples of alternative causes of actions: (a) allegations for breach of contract of carriage and
tort, or (b) allegations for breach of contract and fraud, while examples of alternative defenses are:
(a) defense of failure to repurchase by plaintiff and that property was inherited, or (b) debt has been
paid or that it has prescribed, or (c) fraud attended the execution of the contract, but even assuming
that the contract is valid, the action has prescribed.
3. The object of the provision is to relieve a party from making a definite election in cases where
his claim or defense might fall within two different substantive classes. Hence, a party may state as
many claims/defenses as he has regardless of inconsistency.
3.1 It does not require that all the alternative causes of action/defenses be sufficient for the
plaintiff/defendant to be entitled to relief. It is enough that one of them if made independently would
be sufficient to support a cause of action or defend against it. Hence, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements.
3.2 Overruling of one does not bar other defenses. However, if not set up, determination of one
shall bar the determination of the other.
219
220
HOW TO PLEAD CONDITIONS PRECEDENT
1. A condition precedent as determined by common usage are matters which must be complied
with before a cause of action of action arises.
2. Hence, a general averment of the performance or occurrence of all conditions precedent is

required.221
3. Examples of conditions precedent are: (a) tender of payment is required before consignation 222
(b) exhaustion of administrative remedies before resort to judicial action (c) that earnest efforts at a
compromise have been exerted, the suit being one between members of the same family (d) that
prior resort to conciliation has been undertaken to no avail
4. The failure to comply is an independent ground for a motion to dismiss. 223
PLEADING CAPACITY TO SUE AND TO BE SUED
1. The following must be averred: (1) capacity to sue or be sued (2) authority of a party to sue or
be sued in a representative capacity (3) legal existence of an organized association of persons that
is made a party.224
1.1 Note the cross reference to Sections 1 and 3, Rule 3 referring to who may be parties and
representative parties, and to Section 1(d), Rule 16 referring to a motion to dismiss on the ground of
lack of legal capacity to sue, meaning that a party is not in possession of his civil rights, does not
have the qualification to appear, or does not have the character or representation claimed.
2. A party desiring to raise the issue of lack of legal capacity shall do so by specific denial, which
shall include such supporting particulars as peculiarly within the pleader’s knowledge.
HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND
1. Fraud and mistake must be stated with particularity. It is not enough for the pleading to just
allege fraud.
1.1 It must state the time, place and specific acts constituting the fraud.
2. Condition of mind, such as malice, intent, knowledge may be averred generally. 225
2.1 Based on human experience, it is difficult to state the particulars of a condition of the mind.
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT,

JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD
1. It is sufficient that a general allegation of the existence of the judgment is made, without setting
forth matter showing jurisdiction to render it.226
1.1 Jurisdiction in this case is presumed.
IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT
1. Where the action or defense is based on an actionable document or the written document
upon which the plaintiff or defendant relies for his claim or defense, it is pleaded by (a) setting forth
221
222
Article 1256, NCC
223
Supra, Section 1(j), Rule 16
224
225
226
the substance of such document in the pleading and attaching the original/copy as an annex or (b)
setting it forth verbatim in the pleading.227
2. It is contested by specifically denying it under oath and setting forth what he claims to be the
fact.
2.1 A mere denial is insufficient as the same must be under oath or verified.
2.1 The requirement does not apply if: (a) adverse party is not/does not appear to be a party to the
actionable document. Example: Heirs are sued on a document executed by a person they will inherit
from (b) when compliance with an order for an inspection of the original document is refused.228 (c)
when the document is not an actionable document but is merely evidence of the claim or existence of
the actionable document . Example: demand letters (d) when the party who has the benefit of an
implied admission waives the benefit. Example: he presents evidence as to genuineness and due
execution
3. The effect of not specifically denying an actionable document under oath lead to the admission
of its genuineness and due execution. It thus means that the party executed the document or was
executed by someone authorized by him, it was in the words/figures set forth in the pleading, and that
the formal requirements of law have been observed. Thus, there is no need to present it formally in
evidence because it is an admitted fact.
3.1 A party though is not barred from interposing other defenses as long as it is not inconsistent
with the implied admission. Examples of inconsistent defenses are: forgery, lack of authority to
execute the document, that it was signed in another capacity, it was not delivered or the words/figures
as pleaded are not the same as when the document was signed . On the other hand, consistent
defenses are: fraud, payment, want or illegality of consideration, usury, prescription, release or waiver
or estoppel.
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED
1. It is sufficient to aver that document was issued or the act is done in compliance with law.229
Example: Issuance of Certification to file action by Lupon Tagapayapa chair.
HOW ARE SPECIFIC DENIALS MADE
1. A specific denial is made230 by: (a) Specifically denying the material averment in the pleading
of the adverse party and setting forth the substance of the matter upon which he relies for such
denial, this is known as an absolute denial (b)Deny only a part of the averment by specifying that so
much of it is true and deny the remainder, this is known as partial denial (c) Allegation of lack of
knowledge or information sufficient to form a belief as to the truth of the material averment in the
pleading of the adverse party, this is known as denial by disavowal of knowledge.
A negative pregnant denial is a denial pregnant with an admission of the substantial facts alleged in the
pleading.231
1.1 If the denial is a mere repetition of the allegations in the complaint it is considered a negative
pregnant denial which is conceded to actually be an admission. Example: A complaint alleges:
“Plaintiff extended a loan to Defendant in the amount of P500,000.00 on July 27, 2006 in Baguio
City.” The defendant in his answer alleges: “Defendant specifically denies that Plaintiff extended a
loan to Defendant in the amount of P500,000.00 on July 27, 2006.” The answer is a mere repetition of
227
228
229
230
231
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
the allegations made in the complaint. The answer is vague as to what it really denies. Is it the
existence of a loan that is denied? Is it the amount? The date? The place?
1.2 When the complaint alleges that: “ the sum of PHP 10,000.00 is a reasonable sum to be
allowed plaintiff as and for attorney’s fees. If the defendant’s denial is a mere repetition, then it is an
admission that any sum less than PHP 10,000.00 is reasonable.
1.3 If allegations are not denied in the prescribed manner, a party is deemed to have made a
general denial which is tantamount to an admission.232
1.4 A denial by disavowal of knowledge will amount to an admission, if to the knowledge of the
court, it is so plainly and necessarily within the defendant’s knowledge that the averment of ignorance
must be untrue.
1.5 Exceptions to the rule that matters are admitted by the failure to make a specific denial are: (a)
the amount of unliquidated damages233 (b) conclusions which are not required to be denied as only
ultimate facts must be alleged, and (c) non-material allegations as only those that are material have
to be denied.
1.6 Note that when the allegations pertain to (a) allegations of usury in a complaint to recover
usurious interest, or (b) genuineness and due execution of an actionable document, the specific
denial is required to be made under oath otherwise they are admitted.
STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN
1. If the pleading or any matter therein is sham, false, redundant, immaterial, impetinent or
scandalous, the court can order the pleading or matter contained therein to be stricken therefrom (a)
upon motion made by a party before responding to a pleading (b) if no responsive pleading is allowed
/ permitted by the Rules, upon motion by a party within 20 days after service of the pleading, or (c)
upon the Court’s own initiative234
RULE 9 – EFFECTS OF FAILURE TO PLEAD
1. The general effect of the failure to plead is that the defenses / objections not so pleaded in an
Answer or a Motion to Dismiss are deemed waived.
1.1 However, if it appears from the pleadings or evidence on record that (a) the Court has no
jurisdiction over the subject matter (b) there is another action pending between the same parties for
the same cause, or (c) the action is barred by prior judgment or statute of limitations, the court shall
dismiss the claim.235 These defenses are not barred if not set up
2. A compulsory counterclaim or a cross-claim not set up shall also be barred.236 Note that this is
in consonance with the requirement of the Rules that a compulsory counterclaim or cross claim
existing at the time of the filing of the answer must be contained therein 237 but if it arises after the
filing of an answer, it may be set up in a supplemental pleading before judgment 238 or if failure is due
to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by
amendment with leave of court before judgment.239
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME
ALLOWED
232
233
234
235
236
237
238
239
1. If there is failure to plead within the time allowed, the defendant may be declared in default
upon compliance with the following: (a) the plaintiff must file a motion to declare the defendant in
default (b) serve notice of his motion to defendant, which must include a notice of hearing (c) at the
hearing, show proof of failure on the part of the defendant to file his answer within the reglementary
period.240
1.1 A court cannot motu propio declare a defendant in default.
2. Default is a procedural concept that occurs when the defending party fails to file his answer
within the reglementary period.
2.1 It does not occur from the failure of the defendant to attend the pre-trial, where absence is a
cause for the court to order presentation of evidence ex-parte or at the trial, where absence will be
construed as a waiver to assail the evidence against him or is a waiver of the right to adduce
evidence.
2.2 Note the exceptions to the concept that default is triggered by the failure of the defending party
to file the required answer, as a default judgment has been held to lie if (a) a party refuses to obey an
order requiring him to comply with the various modes of discovery 241, or (b) if a party or managing
agent of a party willfully fails to appear before the officer who is to take his deposition.242
3. It is an error to declare a defendant in default where an answer has already been filed. 243
4. Note that the rule is different if covered by the Rules on Summary Procedure, where a motion
to declare defendant in default is prohibited.244
4.1 Instead, the court can motu proprio or upon a motion render judgment as may be warranted by
the facts alleged in the complaint and limited to what is prayed for.245
5. A declaration in default is not an admission of the truth or the validity of the plaintiff’s claims.246
ONCE DECLARED IN DEFAULT
1. The court has two options,it: (a) can proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless, (b) the Court in its discretion requires the claimant to
submit the evidence. Such reception may be delegated to the Clerk of Court, who must be a member
of the Bar.
2. The extent of the relief that may be awarded shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages.247
2.1 Hence, even if there is proof to indicate a greater relief, the court will refrain from awarding it.
3. The defaulted defendant is nevertheless entitled to notice of subsequent proceedings but he

cannot take part in the trial.248
4. Effect of Partial Default, where a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer while others do not , the court shall try the
cause against all upon the answers thus filed and render judgment upon the evidence presented. 249
240
241
Supra, Section 3 (c), Rule 29
242
243
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
244
Section 19 (h), 1991 Rules of Summary Procedure
245
Section 6, II, 1991 Rules of Summary Procedure
246
Monarch Insurance v. Court of Appeals, 333 SCRA 7
247
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
248
Supra, Section 3 (a), Rule 9
249
4.1 It is not within the authority of the court to divide a case by first hearing the case ex parte as
against the defaulted defendants and render a judgment against them, then proceed to hear the case
as against the non-defaulted defendants.250
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
1. The available remedies of a defendant who is declared in default are as follows:
1.1 Motion to Set Aside Order of Default under oath, filed at any time after notice of declaration in
default and before judgment. Defendant must show by an Affidavit of Merit stating that failure to file
an answer was due to FAME and that he has a meritorious defense
1.2 Motion for New Trial on the ground of FAME if the trial court has rendered judgment but it has
not yet become final
1.3 Appeal the judgment by default, not the order as it is interlocutory, and cannot be appealed,
within 15 days from notice of judgment.
Note that if in the meantime, a motion to set aside order of defendant has been denied, it can be
assigned as an error in the appeal. The non- filing of a motion to set aside or for a new trial does not
bar an appeal.
On appeal, the judgment may be assailed on the ground that the judgment is excessive or is different
in kind from that prayed for or that the plaintiff failed to prove his material allegations or that the
decision is contrary to law. However, he is prohibited from seeking a reversal or modification on the
basis of evidence submitted before the appellate court, as to allow it would mean that he is retaining
the right to adduce evidence, which he lost in the trial court.251
1.4 Petition for Relief from Judgment based on FAME, provided no appeal has been taken within
60 days from notice and 6 months from entry of judgment.252
1.5 Action to Annul Judgment based on extrinsic or collateral fraud , which is such that a party is
induced or prevented from presenting his case or having a full and fair trial, within 4 years from
discovery of the fraud.
1.6 Certiorari, if improperly declared in default or motion to set aside was denied and is tainted
with grave abuse of discretion, which is filed within 60 days from notice or judgment order resolution
or 60 days from notice of the denial of a motion for reconsideration.253
2. If despite a declaration in default, the court subsequently acts on motions for extension or a
motion for a bill of particulars, the effect is that the order of default is deemed lifted. The trial court is
not considered to have acted with grave abuse of discretion.254
CASES WHERE NO DEFAULT LIES
1. In the following cases, default does not lie: (a) annulment of marriage (b) declaration of nullity
of marriage (c) legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other
actions covered by the Rules on Summary Procedure.
1.1 Regarding items (a) to (c), the court shall order the prosecuting attorney to investigate whether
or not collusion exists, and if there is no collusion, to intervene for the state in order to see that the
evidence so presented is not fabricated.255
250
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
251
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28, 2004
252
Supra, Rule 38
253
Supra, Rule 65
254
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
255
Supra, Section 3,(e), Rule 9
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS
WHAT ARE AMENDMENTS
1. Amendments consist of: (a ) Adding or striking out an allegation or the name of any party (b)
Corrections of mistakes in the name of a party or mistaken or inadequate allegation or description in
any other respect.
1.1 The purpose for allowing amendments is so that the actual merits of the controversy may
speedily be determined without regard to technicalities and in the most expeditious and inexpensive
manner. 256
2. The kinds of amendments are:
2.1 Formal Amendments which are defects in the designation of the parties, other clerical or
typographical errors that may summarily be corrected provided no prejudice is caused the adverse
party and are allowed at any stage, at the Court’s own initiative or on motion.257
2.2 All other amendments are considered Substantial Amendments
WHEN AMENDMENTS CAN BE MADE
1. Formal and Substantial amendments can be made once as a matter of right before a
responsive pleading is served, or in case of a Reply, at any time within 10 days after it is served.258
1.1 Prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint
whether a new cause of action or change in theory is introduced.259
1.2 Note that the filing of a motion to dismiss does not bar an amendment as it is not a responsive
pleading and does not preclude the right to the plaintiff to amend his complaint.260
1.3 In fact, even if the motion to dismiss has been granted, the plaintiff can still amend his
complaint before the dismissal becomes final as long as no answer has of yet been served and the
order dismissing the complaint has not yet become final. 261
2. After the filing of a responsive pleading, Substantial amendments require leave of court, but
leave may be refused if it appears to the court that the motion was on made with intent to delay.
Orders related to leave shall be made upon motion filed in court, with notice to the adverse party and
opportunity to be heard.262
2.1 That the amendments should not substantially alter the cause of action or defense is no longer
the rule as the Rules now allow the pleading of alternative causes of action/defenses 263 and that all
such causes or defenses must be pleaded in accordance with the rule on waiver. 264
2.2 The Trial Court may refuse leave or amendments when: (a) A responsive pleading has been
filed and the motion for leave to amend is made with intent to delay (b) The purpose is to confer
jurisdiction as the court must first acquire jurisdiction before it can act.265 Note the instance when the
amendment is made as a matter of right (c) The purpose is to cure the defect of a non-existent cause
of action. Example: An amendment of the complaint to correct its having been filed prematurely or
when the obligation was not yet due.
256
257
258
259
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
260
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
261
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416
262
263
264
265
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
2.3 If no leave is obtained, the pleading has no standing and may be stricken from the records
2.4 Problem: Complaint is filed against several defendants. Some defendants answer, the others
have not yet filed their answers. Amendments will be allowed as a matter of right against those who
have not filed answers, and with leave of court, as against those who have filed their answers.266
3. Substantial amendments can also be made when it is necessary to conform to the evidence.
This occurs when issues are tried with the express or implied consent of parties. If such, they are
treated in all respects as if they have been raised in the pleadings267, thus paving the way for an
amendment of the pleadings to conform to the evidence. This is made upon motion of any party, even
after judgment though the failure to amend does not affect the result of the trial. Example: Increased
claim for the payment of damages or made to authorize presentation of evidence. This occurs when
evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings,
the court may allow the pleadings amended and shall do so with liberality to authorize presentation of
evidence.268
3.1 Thus , the failure of a complaint to state a cause of action may be cured by (a) Presentation of
evidence to prove that cause of action followed by an amendment to conform to evidence, or (b)
Evidence is objected to and the trial court sustains the objection, this is then followed by an
amendment with leave of court to authorize presentation of evidence. Same remedies may be
resorted to when a party fails to raise a defense in his pleading.
THE EFFECTS OF AN AMENDED PLEADING
1. It supersedes the pleading that it amends
2. Admissions in the superseded pleading may be received in evidence against the pleader
because it is not expunged from the records and admissions in the superseded pleading are in the
nature of judicial admissions made by a party in the course of the proceedings which do not require
proof and ordinarily cannot be contradicted except by showing that it was made through palpable
mistake or that no such admission was made.269
3. Claims or defenses alleged in the superseded pleading but not incorporated in the amended
pleading shall be deemed waived.270
HOW IS AN AMENDED PLEADING FILED
1. A new copy of the entire pleading incorporating the amendments which shall be indicated by
appropriate marks shall be filed.271
1.1 Note that the date of filing of amended pleadings does not retroact to the date of the filing of
the original pleading. Hence, the statute of limitations runs until the filing of the amendment, but, an
amendment that merely supplements and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not barred by the statute of limitations that
expired after service of the original complaint. Example: The statement of a cause of action is
imperfect and is corrected by an amended complaint, the plea of prescription relates to the time of
filing but the rule will not apply if a new defendant is impleaded in the amended complaint and prior to
its filing prescription has set in.
WHAT IS A SUPPLEMENTAL PLEADING
1. A supplemental pleading setting forth transactions, occurrences or events which have

happened since the date of the pleading sought to be supplemented Example: Setting up
counterclaims after an answer has been filed.272
266
Siasoco v Court of Appeals, 303 SCRA 186
267
Bernardo v Court of Appeals, 263 SCRA 660
268
269
270
271
272
Supra, Section 9, Rule 11 and Section 2, Rule 9
2. A supplemental pleading is always upon motion, and on such terms as are just and upon
reasonable notice and the adverse party is given 10 days from notice of order admitting the
supplemental pleading to plead thereto.273
3. A supplemental pleading is meant to supply deficiencies in aid of an original pleading, not to

entirely substitute the latter.274 Thus, when the cause of action stated in the supplemental complaint is
different from the cause of action mentioned in the original complaint, the court should not admit the
supplemental complaint.275
DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A SUPPLEMENTAL PLEADING
1. The distinctions are (a) An amended pleading is filed either as a matter of right or with leave, a
supplemental pleading is always with leave (b) An amended pleading alleges matters occurring
before the filing of the original pleading, while a supplemental pleading alleges matters occurring
after the filing of the original pleading (c) An amended pleading supersedes the original pleading,
while a supplemental pleading allows the original pleading to stand.
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED
RESPONSIVE PLEADING DEFINED
1. A responsive pleading is one which seeks affirmative relief and/or set up defenses.276
2. However, a motion to dismiss is not considered a responsive pleading.
ANSWER TO THE COMPLAINT
1. Within 15 days after service of summons unless a different period is fixed by the Court.277
1.1 The same period applies to third party complaints.278

2. If covered by the Rules on Summary Procedure, it is 10 days
3. If the complaint is amended: (a) as a matter of right, within 15 days from being served with a
copy (b) if with leave of court, within 10 days from notice of order admitting the same. If no new
answer is filed, a previously filed answer may serve as the answer. The same period holds for
answers to amended counter-claims, cross claims, third party complaints and complaints in
intervention.279
4. If defendant is a foreign private juridical entity, within 15 days if service of summons is made
on the resident agent or within 30 days from receipt of summons by the entity at its home office if
received by the government office designated by law.280
5. If it is a complaint –in- intervention, within 15 days from notice of the order admitting the
complaint in intervention
6. If it is a supplemental complaint, within 10 days from notice of the order admitting the
supplemental complaint. The answer to the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.281
7. If it involves a complaint served on a non-resident defendant who is not in the Philippines

through any of the modes of extra-territorial service, including by publication, within a reasonable time
273
274
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
275
APT v Court of Appeals, 324 SCRA 533
276
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
277
278
279
280
Supra, Section 2, Rule 11, Section 128, Corporation Code
281
which shall not be less than 60 days after notice as the court may specify in its order granting leave to
effect extra-territorial service of summons
8. If it involves corporate election contests or inspection of corporate books and records disputes,
within 10 days from service of summons and the complaint.282
ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
1. The answer to a cross claim or a counter-claim shall be filed within 10 days from service.283
2. Note that compulsory counterclaims need not be answered unless it raises issues not covered
by the complaint .
2.1 It is required that a compulsory counterclaim or a cross claim existing at the filing of
defendant’s answer must be included therein but, if it matures / or is acquired after serving of answer,
it may with the court’s permission be presented as such in a supplemental pleading. If already
existing and not set up through oversight, inadvertence, or excusable neglect, it may, by leave of
court be set up as such by amendment before judgment.284
REPLY
1. It must be filed within 10 days from service of the pleading responded to.285
2. Note though that the filing of a reply is optional as if one is not filed, all new matters are
deemed controverted.286
3. The exceptions are pleaded actionable documents and allegations as to usury.
MAY THE TIME TO PLEAD BE EXTENDED
1. Upon motion and on terms as may be just, the Court it may extend or allow it to be filed after
the time fixed by the Rules.287 The court may also, upon like terms, allow an answer or other pleading
to be filed after the time fixed by these Rules.
2. In cases covered by the Rules on Summary Procedure, the period cannot be extended nor
shortened.
3. In quo warranto cases, the period may be shortened.288
4. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda, or briefs, let
the period lapse without submitting the same or offering an explanation for failure to do so.289
WHEN A COMPLAINT SHOULD BE FILED
1. A complaint is not a responsive pleading. It is to be filed upon accrual of the cause of action or
any time thereafter but before it is barred by prescription.
RULE 12 – BILL OF PARTICULARS
BILL OF PARTICULARS DEFINED
282
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
283
284
Supra, Sections 8,9, and 10, Rule 11
285
286
287
288
289
Rabanal v Tugade, 383 SCRA 484
1. It is a definitive statement of any matter which is not covered with sufficient definiteness or
particularity to enable him to properly prepare his responsive pleading.290
2. The purpose of which is to make more particular or definite the ultimate facts in a pleading and
is not intended to supply evidentiary matters.
3. It is to be resorted to when the complaint is deficient in details with respect to the factual basis
of each and every item claimed, but such deficiency is not such as to amount to a failure to state a
cause of action as the remedy then is to file a motion to dismiss.291
WHEN SHOULD IT BE FILED
1. Before filing or responding to a pleading or before filing an answer.
2. If pleading is a reply, within 10 days from service thereof
ACTION OF THE COURT
1. Upon filing of the motion that points out the defects complained of, the paragraphs wherein
they are contained, and the details desired.
1.1 It is a litigated motion, thus requires a notice of hearing.
2. The clerk of court must immediately bring it to the attention of the court, which may deny or
grant the motion outright or allow the parties an opportunity to be heard.292
2.2 If granted, whether in whole or in part, the compliance therewith must be effected within 10
days from notice of order, unless a different period is fixed by the Court.
3. In compliance, the bill of particulars may be filed either in a separate or in an amended

pleading, serving a copy on the adverse party.293
3.1 Once filed, it becomes part of the pleading for which it is intended.294
EFFECT OF NON-COMPLIANCE WITH ORDER
1. In case of failure to obey or insufficient compliance, the Court may order the pleading or
portions thereof to which the order was directed to be stricken out or make such order as it deems
just.295 Hence, it may also dismiss for failure of the plaintiff to obey order of the Court.296
2. The striking out of a complaint by the lower court upon motion of the defendant for failure of
the plaintiff to comply with an order requiring him to submit a bill of particulars as a ground for
dismissal is equivalent to an adjudication on the merits unless otherwise provided by the court.297
WHEN MUST A RESPONSE / ANSWER BE FILED
1. After service of a bill / definitive pleading or notice of denial of the motion for a bill of
particulars, the moving party has the remaining period that he was entitled to at the time of the filing
of the motion, which shall not be less then 5 days in any event.298
RULE 13 – FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS
290
291
Sabangan v Manila Railroad Company, 28 SCRA 772
292
293
294
295
296
297
Vda. De Quillosa v Salazar, 14 SCRA 656
298
1. The Rule applies to all pleadings / papers as well as service thereof, except those for which a
different mode of service is prescribed.299
FILING / SERVICE DEFINED
1. Filing is the act of presenting the pleading or other paper to the clerk of court.
2. Service is the act of providing a party with a copy of the pleading / paper.
2.1 If a party is represented by counsel, service is made upon counsel or one of them unless
service is ordered to be made upon the party by the Court. If there is one counsel for several parties,
he is entitled to only one copy served by the opposite side. 300
2.2 Service may also be made on a party with counsel: (a) if counsel cannot be located or
changed his given address (b) when his deposition is to be taken, or is required to answer a written
interrogatory or when a request for admission is made, and (c) if party is ordered to show cause why
he should be punished for contempt
MODES OF FILING
1. The modes of filing are (a) Presenting the original copies of pleadings, appearances, motions,
notices, orders, judgments and all other papers to the clerk of court, or (b) By registered mail.301
1.1 The clerk of court shall if filing be personal, endorse on the pleading, the date and the hour of
filing.
1.2 If it by mail, the date appearing on the post office stamp / registry receipt shall be date of the
filing / deposit of court. The envelope shall be attached to the record. It bears stressing that it is the
date of mailing, not the date of receipt of the mail matter, which shall be considered as the date of
filing.302 This has been the practice since mail is considered an agent of the Government. 303This is
also known as the Mailbox Rule.
2. The papers that are to be filed or served upon affected parties are judgments, resolutions,
order, pleadings subsequent to the complaint, written motions, notices, appearances, remand, offer of
judgment or similar papers.304
WHAT ARE THE MODES OF SERVICE
1. The general rule is that pleadings, motions, notices, orders, judgments and other papers shall
be served personally or by mail.305
2. If personally served, it may done: (a) by delivering personally a copy to party or his counsel, or
(b) leaving it in his office with a clerk or person having charge thereof, or (3) if no person is found in
the office or he has no office, by leaving a copy between the hours of 8am to 6pm at party’s /
counsel’s residence, if known, with a person of sufficient age and discretion residing therein. 306
3. If by mail, by depositing a copy in the post office in a sealed envelope, plainly addressed to the
party or counsel, if known, at his address / office, otherwise, at his residence, if known, postage
prepaid and with instructions to the postmaster to return the mail to sender after 10 days if
undelivered.
3.1 If no registry service is available in the locality of the addressee or sender, service may be by
ordinary mail.307
299
300
301
302
Ansel v Aledo, 420 SCRA 645
303
Supra, Mintu v Court of Appeals, 53 SCRA 114
304
305
306
307
4. If mailed by private carrier, the date of actual receipt by the court of such pleading and not date
of delivery to the carrier is deemed the date of filing of that pleading.308
5. It is required that judgments, final orders or resolutions shall be served personally or by

registered mail.
5.1 If a party is summoned by publication, and he has failed to appear, judgments, final orders /
resolutions shall also be served upon him by publication at the expense of the prevailing party. 309
6. If service cannot be made personally or by mail, substituted service may be availed of as long
as the office and place of residence of the party or his counsel is also unknown, service may be made
by delivering a copy to the clerk of court, with proof of failure of both personal service and service by
mail. The service is complete at the time of such delivery.310
WHEN SERVICE IS COMPLETE
1. Service will be deemed complete: (a) Upon actual delivery if undertaken personally (b) Upon
expiration of 10 days after mailing, unless the Court orders otherwise if undertaken by ordinary mail
(c) Upon actual receipt by addressee or after 5 days from the date he received the 1 st notice of the
postmaster, whichever date is earlier, if undertaken by registered mail311 (d) At the time of delivery to
the clerk of court, if undertaken by substituted service
WHAT IS THE RULE ON PRIORITY OF SERVICE
1. Whenever practicable, service and filing of pleadings and other papers shall be done
personally except, with papers emanating from the court. A resort to other modes must be
accompanied by an explanation why service or filing was not done personally. If not, it may be cause
to consider the paper as not filed. 312
1.1 Where the address of the respondent’s counsel is 83 kilometers away from the address of
petitioner’s counsel, such distance makes personal service impracticable, and a written explanation
why service was not done personally might have been superfluous. Liberal construction has been
allowed in cases where the injustice to the adverse party is not commensurate with the degree of
thoughtlessness in not complying with the procedure prescribed.313
WHAT CONSTITUTES PROOF OF FILING
1. Proof of filing is shown by: (a) existence of the pleading or other paper in the records of the
case (b) If not in the record, but is claimed to be: (1) filed personally by the written / stamped
acknowledgment of its filing by the Clerk of Court on a copy, and (2) filed by registered mail by the
registry receipt and the affidavit of the person who did the mailing containing a full statement of: (a)
Date and place of depositing in the post office in a sealed envelope addressed to the Court, with
postage prepaid, and (b) Instructions are given to the postmaster to return the mail to sender after 10
days, if undelivered.314
WHAT CONSTITUTES PROOF OF SERVICE
1. Proof of service is shown by: (a) Written admission of the party served or official return of the
server, or affidavit of the party serving, containing a full statement of the date, place, manner of
service if served personally (b) An affidavit of the person mailing of facts showing compliance with
Section 7 of the Rule if served by ordinary mail (c) An affidavit and registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in
308
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
309
310
311
312
313
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
314
lieu thereof, the unclaimed letter together of the sworn / certified copy of the notice given by the
postmaster to the addressee.315
2. If service is by registered mail, proof of service consists of the affidavit of the person mailing
and the registry receipt, both of which must be appended to the motion. Absent one or the other, or
both, there is no proof of service.316
3. Late filing of the affidavit of service may be considered as substantial compliance with the
Rules.317
4. Failure of a party to comply with the required proof of service may be excused where the
motion is not a contentious motion and therefore, no right of the adverse party would be affected by
the admission thereof.318
NOTICE OF LIS PENDENS
1. Is an announcement to the world that a particular property (real) is in litigation, serving as a

warning that one who acquires the property or an interest therein does at his own risk which is filed
with the Office of the Register of Deeds of the place where the property is located.
1. It shall contain (a) the names of the parties (b) object of the action or defense (c) description of
the property.319
2. It is only from the time of the filing of the notice for record shall a purchaser or encumbrancer
of the property affected thereby, be deemed to have constructive notice of the pendency of the action
and only of its pendency against parties designated by their real names
3. It is available only in an action affecting title or right of possession of real property. Specifically
in actions (a) to recover possession of real estate (b)to quiet title (c) to remove a cloud (d) for
partition (e) other proceeding of any kind in court directly affecting title to the land or the use or
occupation thereof or buildings thereon.320
4. There is no such action called “annotation of lis pendens” A notice is ordinarily recorded
without the court’s intervention. The annotation of a notice is not proper if the action is in personam.
For it to be proper, the action must be one affecting real property. 321
WHO MAY AVAIL OF IT
1. The plaintiff or the defendant – when affirmative relief is claimed in the answer
WHEN MAY IT BE CANCELLED
1. Upon order of the court when: It is shown that it has for the purpose of molesting the adverse
party or it is not necessary to protect the rights of the party who caused it to be recorded.322
RULE 14 – SUMMONS
SUMMONS DEFINED
315
316
Cruz v Court of Appeals, 388 SCRA 72
317
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
318
PEA v Caoibes, Jr., 312 SCRA 767
319
320
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
321
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203
322
Lim v Vera Cruz, 356 SCRA 386
1. It is a writ issued sealed and signed by the clerk of court upon filing of a complaint and
payment of requisite legal fees323 issued to and directed to the defendant containing the following: (a)
name of the court and of the parties (b) a direction that the defendant answer within the time fixed by
the Rules, and (c) notice that unless defendant answers, plaintiff will take judgment by default and
may be granted the relief prayed for.
1.1 To be attached thereto is a copy of the complaint and the order for the appointment of a
guardian ad litem, if any.324
2. It shall also contain a reminder to the defendant to observe restraint in filing a motion to
dismiss and instead allege the grounds thereof as defenses in the answer. 325
WHO SERVES SUMMONS
1. The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by any suitable
person authorized by the court issuing the summons.326
2. An Officer having management of a jail or institution, if a defendant is a prisoner therein is

deputized as a special sheriff for service of summons.327
SIGNIFICANCE OF SUMMONS
1. The significance of summons is that it is the primary means by which a Court is able to acquire
jurisdiction over the person of the defendant and to give notice that an action has been commenced
against him. It is the writ by which a defendant is notified of the action brought against him.328
2. Jurisdiction cannot be acquired over the person of the defendant even if he knows of the case
against him unless he is validly served with summons329 or the defendant voluntarily appears in the
action.
3. Voluntary appearance shall be equivalent to service of summons. The inclusion in a motion to

dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.330
3.1 The rule abandons previous rulings of the Supreme Court that a motion to dismiss on the
ground of lack of jurisdiction over the person be based solely on that ground, otherwise, it is a
voluntary appearance. This is so because of the omnibus motion rule331 that all objections then
available be included otherwise they are waived, as the only exceptions are (a) the Court has no
jurisdiction over the subject matter; (b) there is another action pending between the same parties for
the same cause; (c) or, the action is barred by prior judgment or statute of limitations.332 These
defenses are not barred if not set up.
WHAT ARE THE MODES OF SERVICE
1. Service in person on the defendant by handling a copy thereof to the defendant in person, or if
he refuses to receive and sign for it, by tendering it to him333
323
324
325
A.M. No. 03-1-09-SC
326
327
328
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
329
UCPB v Ongpin, 368 SCRA 464
330
Supra, Section 20, Rules 14
331
332
333
2. Substituted service by leaving a copy of the summons at defendant’s residence with some
person of suitable age and discretion, then residing therein or leaving it at defendant’s office or
regular place of business with some competent person in charge thereof.334
2.1 The rule presupposes that a relation of confidence exists between the parties with whom the
copy is left and the defendant, and, therefore, assumes that such person will deliver the process to
the defendant or in some way give him notice thereof.
2.2 But, it may only be resorted to, if for justifiable causes, the defendant cannot be served
personally within a reasonable time. The impossibility of service in person must be indicated in the
return, otherwise, substituted service is void. 335
2.3 Within a reasonable time has been interpreted to contemplate a period of time longer than that
demarcated by the word “prompt” and presupposes a prior attempt at personal service that failed.336
In a later case337 it was defined as so much time as necessary under the circumstances for a
reasonably prudent and diligent man to do, conveniently, what the contract or duty requires to be
done. One month from issuance of summons can be considered as reasonable. Several attempts (at
least 3) at personal service must be made, preferably on separate dates. In addition the sheriff must
cite why efforts were unsuccessful.
2.4 Service of summons on the defendant shall be by personal service first and only when the
defendant cannot promptly be served in person will substituted service be availed of. 338
3. Service by publication with leave of court, obtained by the filing of a motion in writing,
supported by an affidavit of the plaintiff or some person in his behalf, setting forth the ground that
allows resort to it.339
3.1 The grounds that allow service of summons by publication are: (a) Identity of the defendant is
unknown or whereabouts of the defendant is unknown and cannot be ascertained by diligent
inquiry340 (b) Defendant does not reside and is not found in the Philippines but the suit can be
maintained against him because it is in rem or quasi in rem341 (c) Defendant is a Philippine resident
but is temporarily out of the country.342 Note the cross reference with Section 15 and the fact that
substituted service may also be availed of.
4. Extra-Territorial Service is allowed in suits against a non-resident defendant not found in the
Philippines can be made by:
4.1 (a) Personal service (b) Publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address (c) Or any other manner the court may
deem sufficient.343 Resort to registered mail has been deemed appropriate.344
4.2 Extra-Territorial Service can be availed of when: (a) Action affects the personal status of the
plaintiff (b) Action relates to, or the subject of which is property within the Philippines in which the
defendant has or claims a lien or interest, actual or contingent (c) When the relief demanded, in whole
or in part consists of excluding the defendant from any interest in property located in the Philippines
(d) When the defendant’s property has been attached in the Philippines.345
4.3 Resort to extra-territorial service requires leave of court.
334
335
Hamilton v Rey, GR 139283, November 15, 2000
336
Laus v Court of Appeals, 219 SCRA 688
337
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006
338
Samartino v Raon, 383 SCRA 664
339
340
341
342
343
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
344
Cariaga v Malaya, 143 SCRA 441
345
UPON WHOM MAY SERVICE OF SUMMONS BE MADE
1. Service of summons is to be made upon the defendant.
1.1 If the defendant is: (a) Entity without juridical personality it is to be served upon any one of
them or upon person in charge of the office or place of business maintained in such name BUT such
shall not bind individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought346 (b) A minor, insane or otherwise incompetent it is to be
served upon him personally and his guardian / or guardian ad litem. In addition, in case of a minor,
service may also be made on his father or mother347 (c) Republic of the Philippines it is to be served
on the Solicitor General 348 (d) Province, City, Municipality or similar public corporation it is to be
served on the executive head, or on such other officers as the law or court may direct349 (e) Domestic
Private Juridical Entity is to be served on the president, managing partner, general manager,
corporate secretary, treasurer or in house counsel.350 Note the abandonment of doctrine of
substantial compliance.351 Basic is the rule that strict compliance with the mode of service is
necessary to confer jurisdiction of the court over a corporation.352 (f) Foreign Private Juridical Entity is
to be served upon its resident agent. If there be no resident agent, the Government official designated
by law such as the SEC, Insurance Commissioner, Superintendent of Banks. If none, any of its
officers or agents in the Philippines. Note the required sequence of service. In addition, if a lawyer
enters an appearance without proof of having been engaged by the foreign corporation, no voluntary
appearance can be inferred.353
AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO
1. Within 5 days after completion, a copy of the return must be served, personally or by
registered mail, to plaintiff’s counsel, and he shall return the summons to the clerk of court who
issued it together with proof of service.354
2. Proof of service is the writing executed by the server setting forth (1) the manner, place and
date of service; (2) the paper/s which have been served with the process and name of the person
who received the same. It is required to be sworn to if made by a person other than the sheriff or his
deputy.355
2.1 If summons is by publication, proof of service consists of: (a) Affidavit of printer, foreman,
principal clerk editor, business manager or advertising manager, copy of the publication attached, and
(b) Affidavit showing the deposit of a copy of the summons and order for publication in the post office,
postage prepaid directed to the defendant by registered mail at / to his last known address.356
RULE 15 – MOTIONS
DEFINED
1. A motion is an application for relief other than a pleading.357
REQUISITES OF A VALID MOTION
1. Shall be in writing except when made in open court or in the course of the hearing or trial. 358
Example: a motion for continuance made in presence of adverse party.
346
347
348
349
350
351
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
352
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
353
Litton Mills v Court of Appeals, 256 SCRA 696
354
355
356
357
Supra, Section 1, Rule 15,
358
2. It must state the relief sought to be obtained and the grounds on which it is based, and if
required by the rules or necessary to prove facts alleged therein, it shall be supported by affidavits or
other papers.359
3. It shall be set for hearing by the applicant except when the motion can be acted upon by the
court without prejudicing the rights of the adverse party. 360 Example: Motion for extension of time to
plead
4. It must contain a notice of hearing addressed to all parties concerned, specifying the time, date
of the hearing which must not be later than 10 days after the filing thereof. 361
4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper. It presents no
question which the court should decide. The rationale behind the rule is plain: unless the movant sets
the time and place of hearing, the court will be unable to determine whether the adverse party agrees
or objects to the motion, and if he objects, to hear him on his objection. The objective is to avoid a
capricious change of mind in order to provide due process to both parties and ensure impartiality.362
4.2 The absence of the notice of hearing will not toll the running of the reglementary period for
appeal.363 It is considered a pro-forma motion.364
5. It must be served, together with the notice of hearing on the adverse party at least 3 days
before the date of hearing unless the court for good reason sets the hearing earlier.365
5.1 The purpose of the three day notice rule is to avoid surprise upon the opposite party and to
give him time to study and meet the arguments of the motion.366
6. There must be proof of service of every written motion set for hearing otherwise it shall not be
acted upon.367
6.1 As a general rule, proof of service is mandatory.368
6.2 A judge can act ex-parte on a motion where the rights of the adverse party are not affected.369
WHEN SHOULD MOTIONS BE SET
1. All motions must be scheduled for hearing on Friday afternoons or if it be a non-working

holiday, in the afternoon of the next working day unless the motion requires immediate action.370This
day is Motion Day.
WHAT SHOULD A MOTION CONTAIN
1. A motion attacking a pleading referring to a motion to dismiss, or attacking an order,

judgment, or proceedings referring to a motion for reconsideration shall include all objections then
available, and all objections not so included are deemed waived except the defenses of Lack of
Jurisdiction, Litis Pendentia, Res Judicata, Statute of Limitations.371
1.1 This is the Omnibus Motion Rule.372
359
360
361
362
Fajardo v Court of Appeals, 354 SCRA 736
363
Cledera v Sarmiento, 39 SCRA 553
364
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
365
366
Remonte v. Bonto, 16 SCRA 257
367
368
Cruz v Court of Appeals, 388 SCRA 72
369
Sumadchat v Court of Appeals, 111 SCRA 488
370
371
372
1.2 The purpose of the Rule is to obviate multiplicity of motions as well as discourage dilatory
pleadings.373 Litigants should not be allowed to reiterate identical motions speculating on the
possible change of opinion of the court or judges thereof.374
1.3 It requires the movant to raise all available exceptions in a single opportunity to avoid multiple
piecemeal objections. But to apply the statutory norm, the objections must be available to the party at
the time the motion was filed.375
2. If motion is one for leave to file a pleading or a motion, it shall be accompanied by the pleading
or motion sought to be admitted.376 Example: Motion for leave to admit amended complaint.
3. As to form, the Rules applicable to pleadings shall apply to written motions as far as it
concerns captions, designation, signature and other matters.377
RULE 16 – MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1. By Motion, within the time for the filing of an answer but before the filing of an answer.
1.1 The rule is not absolute as a motion to dismiss may still be filed after answer on the ground of
(a) lack of jurisdiction (b) litis pendentia (c) lack of a cause of action, and (d) discovery during trial of
evidence that would constitute ground for dismissal.378
2. As an affirmative defense in the answer, and in the discretion of the court, a preliminary
hearing may be had as if a motion to dismiss has been filed. If the action is dismissed, it shall be
without prejudice to the prosecution in the same / separate action of a counter-claim pleaded in the
answer.379
WHAT GROUNDS ARE AVAILABLE
1. A motion to dismiss may be made on any of the following grounds:380
1. The court has no jurisdiction over the person of the defending party
2. The court has no jurisdiction over the subject matter of the claims
3. Venue is improperly laid
3.1 An objection to improper venue must be made before a responsive pleading is filed, otherwise
it is deemed waived.381
4. Plaintiff has no legal capacity to sue
4.1 This means that he is not in exercise of his civil rights, or does not have the necessary
qualification to appear or does not have the character / representation he claims as opposed to the
373
Dacanay v Alvendia, 30 SCRA 31
374
Miranda v Court of Appeals, 71 SCRA 295
375
PH Credit Corporation v Court of Appeals, 370 SCRA 155
376
377
378
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
379
380
381
Fernandez v ICB, 316 SCRA 326
lack of personality to sue which means that he is not the real party in interest, and the basis for
dismissal then is no cause of action or failure to state a cause of action.382
5. There is another action pending between the same parties for the same cause
5.1 This is known as litis pendentia
5.2 The requisites for its application are: (a) Identity of the parties, or at least such as representing
the same interests in both actions (b) Identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts. Identity in both cases, is such that judgment in the pending case would,
regardless of which party is successful amount to res judicata in the other.383
5.3 As between the first and second or latter actions, apply the “priority in time rule”, but the rule
must yield to the “more appropriate action rule. Example: An action for declaratory relief to interpret a
lease contract was filed before an ejectment case, where the Supreme Court held that the ejectment
case is the more appropriate action.384
5.4 There is a 3rd test: Interest of Justice Rule which is a determination of which court would be in
a better position to serve the interest of justice considering : (a) nature of the controversy; (b)
comparative accessibility of the court to the parties; (c) other similar factors.385
5.5 Three relevant conditions to determine which action should be dismissed on the ground of litis
pendentia : (a) date of filing, with preference generally given to the first action filed to be retained (b)
whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate
its filing and lay the basis for its dismissal, and (c) whether the action is the appropriate vehicle for
litigating the issues between the parties.386
5.6 Where the litigant is engaged in forum shopping, the other party may ask for the summary
dismissal of the two cases. The well entrenched rule is that a party cannot, by varying the form of the
action or adopting a different method of presenting his case, escape the operation of the principle that
one and the same cause of action shall not be twice litigated.387
6. The cause of action is barred by a prior judgment or by the statute of limitations
6.1 This is known as Res Judicata, whose requisites are: (a) The existence of a former judgment
that must be final (b) Rendered by a court having jurisdiction over the subject matter and the parties
(c) It must be a judgment or order on the merits (d) There must be between 1st / 2nd action, identity of
parties / subject matter / causes of action.
6.2 The doctrine is founded on 2 grounds: (a) Public policy and necessity which makes it in
the interest of the state that there should be an end to litigation (b) Litigant should be spared the
hardship of being vexed twice for the same cause
6.3 Note that there can be no res judicata in support cases as future support cannot be
compromised.388
6.4 A dismissal of a complaint on the ground that the plaintiff failed to prosecute his action
because of failure to cause service of summons by publication within a reasonable time does not
constitute res judicata as the court cannot be said to have acquired jurisdiction over the person of the
defendant.389
6.5 A previous final judgment denying a petition for declaration of nullity on the ground of
psychological incapacity shall bar a subsequent petition for annulment on the ground of lack of a
382
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199 SCRA 205
383
Victronics Computer v RTC, 217 SCRA 517
384
Teodoro v Mirasol, 99 Phil 150
385
Roa-Magsaysay v Magsaysay, 98 SCRA 592
386
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
387
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
388
De Asis v Court of Appeals, 303 SCRA 176
389
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
marriage license as the cause of action is the same, although the ground on which the action is
predicated has been varied. A party cannot avoid the application of res judicata by varying the form of
the action or adopting a different method of presenting his case.390
6.6 Statute of Limitations or prescription is a statute establishing a period of time from the accrual
of a cause of action within which a right of action must be exercised. If the action is not brought within
the period, then it is barred.
7. The pleading asserting the claim states no cause of action.
7.1 The Test of the Sufficiency of a Cause of Action is: Whether accepting the veracity of the facts
alleged in the complaint, the Court can render a valid judgment upon the same in accordance with
the prayer in complaint.
7.2 No presentation of evidence is required as there is a “hypothetical admission” of the facts

alleged in the complaint. The court can properly dismiss without a hearing by taking into consideration
the discussion in the motion and the opposition thereto.391
7.3 Distinguishing a failure to state a cause of action/no cause of action from lack of a cause of
392
action : (a) The former refers to insufficiency of allegations, while the latter refers to insufficiency of
factual basis (b) The former is raised only in a in a motion to dismiss before responding to a
complaint, while the latter can be raised at any time (c) The former allows dismissal to be had at the
early stages of the action, while the latter allows dismissal after questions of fact have been resolved
after evidence is presented or stipulations / admissions are had.
8. Claim or demand set forth in plaintiff’s pleading has been paid, waived, abandoned, or
otherwise extinguished
9. Claim on which the action is founded is unenforceable under the provisions of the statute of
frauds.
9.1 Statute of Frauds is statute/s that deals with the enforcement and requirements of agreements
in particular circumstances. It is descriptive of statutes which require certain classes of contracts to be
in writing.393
10. A condition precedent for filing the claim has not been complied with
10.1 In certain cases, referral of a case to the Lupon is a condition precedent for filing a complaint in
court. It is not jurisdictional.394 It may be waived if not raised seasonably in a motion to dismiss. 395
RESOLUTION OF A MOTION TO DISMISS
1. It shall be heard396, at the hearing, the parties shall submit arguments on the questions of law
and evidence on the questions of law and fact involved except those not available at that time. Should
the case eventually go to trial, the evidence during the hearings shall automatically be part of the
evidence of the party presenting the same.
2. After the hearing, Court shall either dismiss the action, deny the motion or order amendment of
the pleading, stating clearly and distinctly the reasons for the action taken.397
2.1 It is now mandated that the Court cannot defer resolution of the motion based on the reason
that the ground relied upon does not appear to be indubitable or sure
390
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006
391
Nadela v. City of Cebu, 411 SCRA 315
392
Supra, Rule 33
393
Litonjua v Fernandez, 427 SCRA 478
394
Junson v martinez, 405 SCRA 390
395
Banares v Balising, 328 SCRA 36
396
397
3. If the motion is denied, the movant shall file an answer within the balance of the period
prescribed by Rule 11, which he was entitled to at the time of serving the motion, but not less than 5
days in any event, counted from notice of denial.
3.1 If ordered amended, an answer is to be filed within period prescribed by Rule 11, counted from
service of amended pleading, unless the court provides a longer period. Note that it is 15 days as no
answer has of yet been filed. Hence the amendment is one that is a matter of right. 398
3.2 The effect of dismissal is that subject to the right to appeal, an order granting a motion to
dismiss on the grounds of (a) prior judgment or statute of limitations (b) claim / demand has been
paid, waived abandoned or otherwise extinguished, or (c) is unenforceable under the statute of frauds
shall bar a re-filing of the same.399
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
1. A plaintiff may cause the dismissal of his complaint by:
1.1 Filing of a notice of dismissal at anytime before service of an answer or motion for summary
judgment. Once filed, the court shall issue an order confirming the dismissal, which is without
prejudice, unless stated otherwise but, such dismissal will operate as adjudication on the merits when
filed by a plaintiff who has once dismissed in a competent court, his action based on or including the
same claim.400 This is known as the 2 dismissal rule.
1.2 The action of the court is to confirm the dismissal. Hence, upon filing of the notice, the
complaint is considered as dismissed.401
2. Or, by filing a motion to dismiss if an answer or a motion for summary judgment has been
served but such will not result in dismissal without the approval of the court and upon terms and
conditions as the court deems proper.
2.1 If a counterclaim has been pleaded before service of motion to dismiss – the dismissal is
limited to the complaint. It shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within 15 days from notice of the motion he manifests a
preference to have it resolved in the same action.
2.2 Unless specified, a dismissal is without prejudice.
2.2 Note also that a class suit shall not be dismissed or compromised without the approval of the
Court.402
COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT
1. The court can motu propio or upon motion of the defendant dismiss a complaint when: (a)If,
for no justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint (b) If, for no justifiable reason, plaintiff fails to prosecute his action for an
unreasonable length of time (c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court
or any order of the Court.
1.1 A dismissal shall have the effect of an adjudication on the merits, unless otherwise declared by
the court.
398
399
400
401
Bar, 1989
402
1.2 Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the
same or a separate action and shall have the effect of an adjudication on the merits unless otherwise
declared by the court.403
2. The remedies of a plaintiff are: (a) Appeal the dismissal as it is a final order, or (b) If without
prejudice, refile the action as an order dismissing without prejudice is not subject to appeal.
3. At the pre-trial, the court ordered the parties to submit a compromise agreement within a ten
day period. The parties were unable to submit the compromise agreement, thus leading to a
dismissal. There is nothing in the rules that imposes a sanction for failure to submit a compromise
agreement.404
APPLICABILITY OF THE RULE
1. The Rule also applies to dismissal by the defendant of his counterclaims cross-claims or 3rd
party claims.
1.1 Voluntary dismissal by the claimant by notice as under Section 1 of the Rule shall be made
before a responsive pleading, motion for summary judgment is served, or if there be none, before
introduction of evidence at the trial or hearing.405
RULE 18 – PRE-TRIAL
WHAT IS PRE-TRIAL
1. It is a procedural devise intended to clarify and limit the basic issues between the parties. Its
main objective is to simplify, abbreviate and expedite trial, or otherwise dispense with it. 406
2. It is a conference or hearing at which the court, with the cooperation of the parties, seeks to
determine definitively what precisely are the factual issues to be tried and how each party intends to
establish his position on each disputed factual issue.
WHEN CONDUCTED
1. After the last pleading has been served and filed. It shall be the duty of the plaintiff to move ex-
parte that the case be set for pre-trial.407
1.1 SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5 days.
1.2 SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the plaintiff fail to move ex-
parte to set case for pre-trial, the branch clerk of court should issue a notice of pre-trial.
1.3 The same circular also requires that the presiding judge direct the parties to mediation, if
possible. If it fails, it will schedule the pre-trial but it may also schedule a preliminary conference
before the branch clerk of court to assist them in (a) reaching a settlement (b) pre-marking of
documents and exhibits (c) consider other matters that will aid in the prompt disposition of the case.
1.4 The judge is also directed to consider assisting the parties in effecting a settlement given the
evidence of the parties.
2. The last pleading is the answer to the original complaint, cross claim, or, third party complaint
and the reply.
NATURE AND PURPOSE
403
404
Ruiz, Jr v CA, 212 SCRA 660
405
406
Interlining v Philippine Trust Company, 378 SCRA 521
407
1. Pre-trial is by nature mandatory and the purpose for its conduct is to take up the following
matters:408
1.1 Possibility of amicable settlement / or submission to alternative modes of dispute resolution.

The alternative modes are: (a) arbitration (b) mediation (c) conciliation (d) early neutral evaluation (e)
mini-trial, or (f) any combination of the foregoing.409
1.2 Simplification of the issues
1.3 Necessity / desirability of amendment to the pleadings
1.4 Possibility of obtaining stipulations or admissions of fact and of documents to avoid

unnecessary proof
1.5 Limitation of number of witnesses
1.6 Advisability of a preliminary reference of issues to a commissioner
1.7 Propriety of judgment on the pleadings, summary judgment, or dismissing the action if a valid
ground therefor be found to exist. Hence, a motion for judgment on the pleadings or summary
judgment must be filed as in a pre-trial the court merely determines its propriety.
1.8 Advisability of suspending the proceedings
1.9 Such other matters as may aid in the prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED
1. It shall be served on counsel, or party if not represented by counsel.
1.1 Counsel is charged with the duty to notify the party.410
2. Notice is so important that it would be grave abuse of discretion for the court to allow plaintiff to
present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not
receive through counsel a notice of pre-trial.
2.1 Accordingly, there is no legal basis to consider a party notified of the pre-trial and to consider
that there is no longer any need to send a notice because it was counsel who suggested the date of
pre-trial.411
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL
1. The parties and counsel are required to be present during the pre-trial. A party may be
excused if: (a) A valid cause is shown therefore (b)A representative shall appear duly authorized in
writing to do the following: (1) enter into amicable settlement; (2) submit to alternative modes of
dispute resolution; (3) enter into stipulations / admissions of fact / documents.412
EFFECT OF FAILURE TO APPEAR
1. If plaintiff fails to appear despite due notice, he may be declared non-suited and the complaint
is dismissed. The dismissal shall be with prejudice, unless otherwise ordered by the court.
408
409
RA 9285, Alternative Dispute Resolution Act of 2004
410
411
Agulto v Tecson, 476 SCRA 395
412
1.1 His remedy is to appeal order of dismissal because it is a final resolution. If dismissed without
prejudice, he can refile the complaint
2. If defendant fails to appear despite due notice, plaintiff is allowed to present his evidence ex-
parte and the court may render judgment on the basis thereof. 413
3. What is penalized is the failure to appear of either the plaintiff or the defendant, and not their
respective counsel.414
4. As a rule, there can be no second pre-trial unless both parties consent.415
WHAT MUST BE FILED BEFORE PRE-TRIAL
1. A pre-trial brief must be filed and served on the adverse party at least 3 days before the pre-
trial containing:416
1.1 Statement of willingness to enter into an amicable settlement, the desired terms or to submit to
alternative modes of dispute resolution
1.2 Summary of admitted facts / proposed stipulation of facts
1.3 Issues to be tried or resolved
1.4 Number of witnesses / names, abstract of testimonies, approximate number of hours that will
be required for presentation of their respective evidence
1.5 Copies of all documents intended to be presented which statement of the purposes of their
offer
1.6 Manifestation of their having availed of or their intention to avail of discovery procedure, or
need for referral of any issues to commissioners
1.7 Applicable law / jurisprudence
1.8 Available trial dates of counsel for complete presentation of evidence which must be within a
period 3 months from the first day of trial.417
2. Note that the failure to file a brief shall have the same effect as failure to appear.
3. Neither can the court conduct a pre-trial without the parties filing their pre-trial briefs.418
PRE-TRIAL ORDER
1. Proceedings shall be recorded. Upon termination, court shall issue an order which shall recite
in detail: (a) matters taken up (b) action taken thereon (c) amendments allowed to the pleadings (d)
agreements / admissions made by the parties as to any of the matters taken which shall be binding
and conclusive upon the parties419 (e) explicitly defining and limiting the issues to be tried.
2. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a
case are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at
a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as
413
414
Paredes v. Verano
415
Young v Court of Appeals, 204 SCRA 584
416
417
Section 6, SC Adm. Circular 3-99, January 15, 1999
418
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
419
Heirs of Conahap v Regana, 458 SCRA 741
may involve privileged or impeaching matters. The determination of issues at a pretrial conference
bars the consideration of other questions on appeal.420
2.1 The object of a pre-trial order is to control the subsequent course of the action as trial shall be
limited to the issues stated in the pre-trial order,421, unless modified to prevent manifest injustice. 422
2.2. Notwithstanding, courts are not required to resolve all issues raised in pleading unless
necessary for the resolution of the case.423
RULE 19 – INTERVENTION
WHO MAY INTERVENE
1. A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against both or (d) is so situated as
to be adversely affected by a distribution or other disposition of property in the custody of the court or
an officer thereof.424
1.1 Examples are (a)an action for payment of money, where personal property of the defendant is
attached, a 3rd person claiming the attached property can intervene (b) action by alleged owners of
the land sought to be foreclosed.
1.2 The interest which entitles a person to intervene in a suit must be in the matter in litigation and
of such direct and/or immediate character that intervenor will either gain or lose by direct legal
operation and effect of judgment. 425
2. Intervention does not lie for a transferee pendente lite.426
HOW AND WHEN CAN A PERSON INTERVENE
1. Filing of a motion for leave of court to intervene, attaching thereto a copy of the pleading in
intervention, which is then served on the original parties at any time before rendition of judgment by
the trial court.427
1.1 The court may refuse leave when (a) It will unduly delay or prejudice the adjudication of the
rights of the original parties. Example: Delay or laches in bringing intervention, or (b) Intervenor’s
rights may be fully protected in a separate proceeding. Example: Attachment of real property subject
of a mortgage
2. The pleadings in intervention are (a) Complaint in Intervention, if he asserts a claim against
either or all of the original parties, or (b) Answer in Intervention, if he unites with the defending party in
resisting the claim of the plaintiff. 428
3. If granted, a complaint in intervention is to be replied to within 15 days from notice of the order
admitting the same unless a different period is fixed by the court.
4. No intervention is allowed in a land registration case as the remedy is to file an opposition.
4.1 Neither is it allowed in cases covered by the Rules on Summary Procedure.
420
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
421
422
423
IBAA vs. IAC, 167 SCRA 450
424
425
Roxas v Dinglasan, 28 SCRA 430
426
427
428
5. Intervention is merely collateral or accessory or ancillary to the principal action and not an
independent proceeding. Hence, with the final dismissal of the original action, the complaint in
intervention can no longer be acted upon.429
6. An order denying a motion for intervention is appealable.430
RULE 20 – CALENDAR OF CASES
MAINTENANCE OF THE COURT CALENDAR
1. The clerk of court, under the direct supervision of a judge, shall keep a calendar for (a) pre-trial
(b) trial (c) trials that were adjourned or postponed (d) those with motions set for hearing.
2. In fixing the calendar, preference is given to habeas corpus, election cases, special civil
actions and those required by law.431
ASSIGNMENT OF CASES
1. The assignment of cases shall always by raffle done in open session of which adequate notice
shall be given to afford interested parties the opportunity to be present.432 The purpose is to obviate
public suspicion regarding assignment of cases to predetermined judges. 433
RULE 21 – SUBPOENA
WHAT IS A SUBPOENA
1. A process directed to a person requiring him to attend and testify at the hearing or trial of an
action, or at any investigation conducted by competent authority, or the taking of his deposition
KINDS OF SUBPOENA
1. The kinds of subpoena are: (a) Subpoena Ad Testificandum if it directs and requires a person
to attend and testify, or (b) Duces Tecum if it requires him to bring books/documents/or other things
under his control.434
BY WHOM ISSUED
1. A subpoena is issued by (a) The court before whom the witness is required to attend (b) The
court where deposition is to be taken (c) Officer or body authorized by law to do so in connection with
investigations that it may conduct (d) Any justice of the Supreme Court/Court of Appeals in any case
or investigation pending within the Philippines435
1.1 A request by a party for the issuance of a subpoena does not require notice to other parties to
the action.436
2. In taking depositions, the clerk of court shall not issue a subpoena duces tecum without a court
order.437
3. Absent any proceeding, suit or action, commenced or pending before a court, a subpoena may
not issue.438
429
Barangay Matictic v Elbinias, 148 SCRA 83
430
Foster-Gallego v Galang, 435 SCRA 275
431
432
433
Ang v Bello, 163 SCRA 358
434
435
436
Adorio v Bersamin, 273 SCRA 217
437
438
Collado v Bravo, 356 SCRA 411
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA
1. Witness resides more than 100 kilometers from his residence to the place where he is to testify
by the ordinary course of travel.439 This is also called the viatory right of the witness or the right not
to be compelled to testify in a civil case if he lives more than 100 kilometers from his residence to the
place where he is to testify by ordinary course of travel.
1.1 If the viatory right is invoked, a witness can still be compelled to testify by the taking of his
deposition in a place within 100 kilometers from where he resides, observing the following steps: (a)
Party desiring to take deposition shall give reasonable notice in writing to every other party in the
action stating the time, place, name and address of the person whose deposition is to be taken.
There should be proof of service of the notice (b) Proof of service of notice to take deposition shall be
presented to the clerk of court of the place where deposition is to be taken (c) On the basis of such
proof of service, the clerk upon authority and under seal of the court, shall issue the subpoena but a
subpoena duces tecum cannot be issued without an order of the Court (d) Subpoena is to be served
on witness whose deposition is to be taken.440
2. Witness is a detention prisoner, if no permission of the court in which his case is pending is
obtained or if the witness is a prisoner sentenced to death, reclusion perpetua or life imprisonment
and is confined in a penal institution, if authority of the Supreme Court to bring out the prisoner has
not been obtained. The court should examine and study the application properly to determine if it is
being made for a valid purpose.441
FORM AND CONTENTS OF SUBPOENA
1. A subpoena must contain the following: (a) Name of the court (b) Title of action/investigation
and is to be directed to the person whose attendance is required. If duces tecum, in addition, it must
contain a reasonable description of the books, documents, things demanded which is must appear to
the Court to be prima facie relevant.442
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1. If duces tecum, it may be quashed on the following grounds: (a) It is unreasonable and
oppressive (b) Relevancy of the books, documents or things do not appear (c) Person in
whose behalf subpoena is issued fails to advance the reasonable costs of the production thereof (d)
The witness fees and kilometrage allowed by the rules were not tendered when subpoena was
served. Under A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day inclusive of all
expenses
2. If ad testificandum, it may be quashed on the following grounds: (a) Witness is not bound by
the subpoena (b) Witness fees and kilometrage allowed by rules were not tendered when the
subpoena was served.443
HOW IS A SUBPOENA SERVED
1. In the same manner as personal or substituted service of summons, original is to be exhibited

and delivered to person on whom it is served – tendering the fees for one day attendance at the
kilometrage allowed by Rules except if subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof. Tender must be made so as to allow the witness a
reasonable time for preparation or travel to the place of attendance. 444
1. If duces tecum, the cost of production of books, papers or things must also be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per witness.
439
440
441
442
443
444
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A SUBPOENA
1. Yes, when he is present in court, in which event it is as if he were in attendance upon

subpoena issued by the Court.445
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA
1. The consequences of disobedience are: (a) He may be arrested and brought before the Court
where his attendance is required, the cost of warrant and seizure shall be paid by the witness if the
Court finds disobedience to be willful and without just excuse. 446 (b) Citation in contempt by the court
from which the subpoena is issued. It not issued by a Court, then in accordance with the applicable
rule / law.447
RULE 22 – COMPUTATION OF TIME
HOW COMPUTED
1. The day of the act / event from which the designated period of time begins to run is excluded
and date of performance included.
2. If the last day falls on a Saturday, Sunday or legal holiday in the place where the Court sits, the
time shall not run until the next working day.448
2.1 Should a party desire to file any pleading, even a motion for extension of time to file a
pleading, and the last day falls on a Saturday, Sunday or a legal holiday, he may do so on the next
working day. In case the motion for extension is granted, the due date for the extended period shall
be counted from the original due date, not from the next working day on which the motion for
extension was filed.449
EFFECT OF INTERUPTIONS
1. Allowable period after interruption shall start to run on the day after, notice of the cessation of
the cause thereof. The day of the act that caused cessation shall be excluded in the computation of
the period.
2. Rule on computation of time dies not apply to prescription of offenses or causes of action.
Hence, if the last day falls on a Saturday, Sunday or legal holiday, it prescribes on the said date.
RULES 23 TO 29 – MODES OF DISCOVERY
WHAT IS DISCOVERY
1. The methods used by the parties to a civil action to obtain information held by the other party
that is relevant to the action.
PURPOSES OF DISCOVERY
1. The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic
issues between the parties (b) It is a device to ascertain the facts relevant to the issues.
445
446
447
448
449
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC
1.1 Relevancy is determined by its logical tendency to prove or disprove a fact or to make the fact
more or less probable.
WHAT ARE THE MODES OF DISCOVERY
1. The modes of discovery (a) Deposition pending action450 (b) Deposition before action or
pending appeal 451(c) Interrogatories to parties452 (d) Request for admission by adverse party453 (e)
Production or inspection of documents / things454 (f) Physical / mental examination of
persons455
WHAT IS A DEPOSITION
1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at
the instance of a party to the action.
1.1 This testimony is taken out of court by oral examination or written interrogatory.
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN
1. With leave of court, after jurisdiction has been acquired / obtained over any defendant or over
property which is the subject of the action as the issues are not yet joined and disputed facts are not
yet clear or if a person is confined in a prison with leave of court only, on such terms that the Court
may prescribe.
2. Without leave of court, after an answer has been served.456
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
1. Any person, whether a party or not, upon oral examination or written interrogatory upon the
initiative of any party.
SCOPE OF A DEPOSITION
1. The deponent may be examined regarding any matter, not privileged , which is relevant to the
subject of the pending action whether it relates to a claim or a defense of any other party.
1.1 Including the existence, description, nature, custody, condition, location of any books,
documents or other tangible things and the identity and location of persons having knowledge of
relevant facts.457
2. The taking and scope of a deposition after notice is served for its taking by oral examination
may be limited.
2.1 Upon motion seasonably filed, by a party or the person to be examined, and for good cause
shown, the court in which the action is pending may order: (a) Deposition not be taken (b)It be
taken only at some designated place other than that stated in the notice (c)It be taken only on written
interrogatories (d) That certain matters shall not be inquired into (e) That scope of the examination
shall be held without anyone present except the parties to the action, and their officers of counsel
(f)That after depositions are sealed, they shall be opened only by order of the court (g)That secret
processes, developments or research need not be disclosed (h)That parties shall simultaneously file
450
Supra, Rule 23
451
Supra, Rule 24
452
Supra, Rule 25
453
Supra, Rule 26
454
Supra, Rule 27
455
Supra, Rule 28
456
457
specified documents or information enclosed in sealed envelopes to be opened as directed by the
Court (i) That court may make any order which justice requires to protect the party or witnesses from
annoyance embarrassment or oppression.458
3. During the taking of the deposition, it shall be taken subject to the additional limitations:
3.1 During the taking of the deposition, on motion or petition of any party or the deponent upon
showing that the examination is being conducted in bad faith or in such manner as to unreasonably
annoy, embarrass or oppress the deponent or a party, the court where the action is pending or the
RTC of the place where deposition is being taken may order the officer taking the examination to
cease forthwith or limit the scope as provided in Section 16.
3.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is
pending. Upon demand of the objecting party/deponent, the taking shall be suspended for the time
necessary to make a notice for an order. In granting/refusing such order, the court may impose upon
either party or upon the witness the requirement to pay costs/expenses as the Court may deem
reasonable.459
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1. Within the Philippines: a judge, notary public, or person authorized to administer oaths, at any
time or place if so stipulated in writing by the parties.460
2. In foreign countries: On notice before a secretary of the embassy or legation or the diplomatic
minister and his staff, consul general, consul, vice consul or consular agent of the Republic of the
Philippines, or before such person or officer as may be appointed by commission or letters
rogatory.461
2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to

authorize persons to take a deposition or do any other act by authority of such court or tribunal. A
Commission is addressed to officers designated by name or descriptive title.
2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to
another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending
before the former, a witness who is within the jurisdiction of the judge or court to whom such letters
are addressed. Letters Rogatory are addressed to a judicial authority in a foreign country and may be
applied for and issued only after a commission has been returned unexecuted.
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS
1. A Person who is a relative within the 6th degree of consanguinity / affinity or employee or
counsel of any of the parties or relative within the same degree or employee of counsel or is
financially interested in the action.462
TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION
1. The taking is initiated by the giving of reasonable notice in writing to every other party to the
action, which must state the time / place of the taking of the deposition and the name and address of
the person to be examined, if known, If not known, a general description sufficient to identify him or
the particular class or group to which he belongs.
1.1 On motion of a party upon whom notice is served, the court , for cause, may enlarge or shorten
the time.463
458
459
460
461
Supra, Sections 11, 12, and 14, Rule 23
462
463
2. Officer taking the deposition shall put the witness under oath and shall personally, or by
someone acting under his direction and his presence record the testimony of the witness
stenographically unless the parties agree otherwise.
3. All objections as to the qualifications of the officer taking the deposition, the manner of taking
the evidence presented, conduct of the parties or any other objection shall be noted. Any evidence
objected to shall be taken subject to the objections.
4. Parties served with notice, in lieu of participating in the taking of the deposition, may submit
written interrogatories, which the officer taking the deposition shall propound to the witness and
record the answers verbatim.464
5. After the taking of the deposition, and testimony is transcribed, it is submitted to the witness for
examination and shall be read to or by him, unless such is waived by the witness and the parties. If
there are changes, in form or substance which the witness desires to make, it shall be entered upon
the deposition by the officer with a statement as to the reason given by the witness as why they are
being made.
6. The deposition is then signed by the witness, unless the parties by stipulation waive the
signing, or the witness is ill or cannot be found or refuses to sign.
7. If not signed, the officer shall sign it and state on the record why it was not signed together with
reasons. If there is refusal to sign, the effect is that the deposition then may be used fully as though
signed, unless on a motion to suppress under Sec 29 (f) , pertaining to errors or irregularities in
preparation, the Court holds that the reason for refusal to sign require rejection of the deposition in
whole or in part.465
8. Once signed, the officer shall certify on the deposition that the witness was duly sworn to by
him and that the deposition is a true record of the testimony of the witness. He shall then securely
seal the deposition in an envelope endorsed with the title of the action and marked “deposition of
_______” to be promptly filed with the court where the action is pending or sent by registered mail to
the clerk thereof for filing.466
9. Notice of filing shall then promptly be given by the officer to all parties 467 and upon payment of
reasonable charges, he is to furnish copies of the deposition to any party or the deponent. 468
TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon written interrogatories shall serve them upon every
other party with notice stating: (a) name and address of the person who will answer them (b)
descriptive title and address of the person who will take the deposition (c) Within 10 days, party
served may serve cross-interrogatories on the party proposing to take the deposition (d) Within 5
days thereafter, the latter may serve re-direct interrogatories upon the party serving cross–
interrogatories (5) within 3 days after being served of re-direct interrogatories, a party may serve re-
cross interrogatories upon party proposing to take deposition.469
2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the
deposition to officer designated in the notice, who shall proceed promptly in the manner provided by
Sections 17, 19 and 20 to take the testimony of the witness in response to the interrogatories and to
prepare, certify, and file / mail the deposition attaching copies of the notice and interrogatories. 470
3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent
upon payment of reasonable charges.471
464
465
466
467
468
469
470
471
4. Note that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the
deposition be upon oral examination.
EFFECT OF NON-APPEARANCE
1. If party giving notice fails to appear and another attends in person or by counsel, the Court
may order the party giving notice to pay reasonable expenses incurred to attend, including
reasonable attorney’s fees. 472
2. If party giving notice does not serve subpoena and the witness does not appear, court can
order party giving notice to pay reasonable expenses for attendance plus attorney’s fees to a party
who appears in person or by counsel473
TAKING OF DEPOSITIONS BEFORE ACTION OR PENDING APPEAL OR DEPOSTIONS IN

PERPETUAM REI MEMORIAM
1. A deposition before action is initiated by the filing of a verified petition by a person desiring to
perpetuate his testimony or that of any person in relation to any matter cognizable in any court in the
Philippines in the Court in the place of residence of the expected adverse party. 474
1.1 The contents of the petition which shall be entitled in the name of the petitioner and should
show: (a) That petitioner expects to be a party to an action in a Court in the Philippines but is
presently unable to bring it or cause it to be brought (b) The subject matter of the expected action and
his interest therein (c) The facts that he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it (d) The names or description of the person he expects will be
adverse parties and their addresses so far as known (e) The names and addresses of the persons to
be examined and the substance of the testimony which he expects to elicit from each and shall then
ask for an order authorizing the petitioner to take the depositions of the persons to be examined
named in the petition for the purpose of perpetuating their testimony. 475
1.2 To Perpetuate means to preserve or make available testimony for later use at a trial by means
of deposition.
2. After the petition is completed, the petitioner shall serve a notice upon each person named in
the petition as an expected adverse party, together with a copy of the petition stating that: he will
apply to the Court at a time and place stated therein, for the order described in the petition.
2.1 At least 20 days before the date of the hearing, the Court shall cause notice thereof to be
served on the parties and prospective deponents in the manner provided for service of summons.476
3. If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or
delay of justice, it shall make an order designating or describing the persons whose depositions are to
be taken, specifying the subject and whether it will be upon oral execution or written interrogatories
under Rule 23.477
3.1 For purposes of applying Rule 23, references to the court in which the action is pending shall
be deemed to refer to the court in which petition for such deposition is filed. 478
4. A deposition taken under the Rule or although not so taken, it would be admissible in
evidence, it may be used in any action involving the same subject matter contained in petition
subsequently brought in accordance with Sections 4 and 5 of Rule 23.479
472
473
474
475
476
477
478
479
5. A deposition pending appeal can be had If appeal is taken from a judgment of a Court
including the CA in proper cases or before the taking of an appeal if the time therefore has not yet
expired.
5.1 The Court in which judgment was rendered may allow taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the said Court.
5.2 It is initiated by a party making a motion in said Court for leave to take depositions – upon the
said notice and service thereof as if the action was pending therein, the motion should state: (a) name
and addresses of persons to be examined and substance of testimony to be elicited (b) reasons for
perpetuating testimony.
5.3 If Court finds that it is proper to avoid failure or delay of justice, it may allow the depositions to
be taken and used in the same manner and under same conditions as prescribed for depositions in
pending actions.480
EFFECT OF TAKING AND USING DEPOSITIONS
1. A party shall not be deemed to make a person his own witness by taking his deposition.481
2. If introduced in evidence in whole/part for any purpose other than contradicting or impeaching
the deponent, such makes the deponent the witness of the party introducing the deposition.
2.1 But it does not apply to the use of an adverse party of a deposition as described in Par. (b)
Section 4 of Rule 23.482
USE OF DEPOSITION
1. A deposition can be used at the trial, upon the hearing of a motion or an interlocutory
proceeding.
1.1 Any part of all of a deposition, so far as admissible under the rules of evidence may be used
against any party who was present, or represented at the taking or had due notice thereof, in
accordance with the following:
a. May be used by any party for the purpose of contradicting or impeaching the testimony of
deponent as a witness
b. Deposition of a party or anyone who at the time of the taking was an officer, director, or
managing agent of a public/private corporation partnership/association which is a party may be used
by an adverse party for any purpose
c. Deposition of a witness, party or not, may be used by any party for any purpose if the court
finds that: (1) witness is dead (2)witness resides more than 100 kilometers from the place of
trial/hearing or is out of the Philippines unless, it appears that his absence is procured by the party
offering the deposition (3) witness is unable to attend/testify because of age, sickness, infirmity or
imprisonment (4) party offering the deposition has been unable to procure the attendance of the
witness by subpoena (5) upon application and notice, exceptional circumstances exist as to make it
desirable in the interest of justice and with due regard to the importance of presenting the testimony
of witness in open court, to allow the deposition to be used.
d. If only a part of the deposition is offered in evidence by a party, the adverse party may require
him to introduce all of which is relevant to the part introduced, and any party may introduce the other
parts.483
480
481
482
483
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS
EVIDENCE
1. If the deponent is a party, the opposing party can use it to prove his claim
or defense.
1.1 It may also be used to impeach or contradict the party deponent if he testifies.
2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if
he testifies but if Paragraph (c ) of Section 4 applies, it can be used for any purpose.
RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE PRESENTED
1. Subject to the provisions of Section 29, objections may be made at the trial or hearing to
receive in evidence any deposition or part thereof for any reason which would require the exclusion of
the evidence if the witness were then present and testifying.
2. Specific objections are resolved as follows:
2.1 As to notice, they are waived unless written objection is promptly served upon the party giving
the notice
2.2 As to disqualification of the officer, it is waived unless made before the taking of the deposition
or as soon thereafter as the disqualification becomes known or could be discovered with reasonable
diligence.
2.3 As to competency relevancy of evidence, as to competency of the witness or competence,

relevancy or materiality of the evidence/testimony, they are not waived by the failure to make them
before or during the taking of the deposition unless the ground of the objection is one which might
have been obviated or removed if presented at that time
2.4 As to oral examination and other particulars – Errors and irregularities occurring at the oral
examination in the manner of taking, the form of the questions and answers, in the oath/affirmation, or
the conduct of the parties and errors of any kind which might be obviated, removed or cured it
promptly, prosecuted, are waived, unless reasonable objection thereto is made at the taking of the
deposition.
2.5 As to the form of written interrogatories, the objections are waived unless served in writing
upon party propounding them within the time allowed for the serving of succeeding cross or other
interrogatories and within 3 days after service of the last interrogatory authorized.
2.6 As to manner of preparation, objections as to the manner in which the testimony is transcribed,
or the deposition is prepared, signed certified, sealed, indorsed, transmitted, filed, or otherwise dealt
with by the officer are waived, unless a motion to suppress the deposition or part thereof is made with
reasonable promptness after such defect is, or with due diligence, might have been ascertained.484
HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT
CAN ADVERSE/ OTHER PARTIES DO
1. Generally, the deponent is called to testify. Hence he may be examined/cross-examined as

permitted at the trial under Sections 3 to 18, Rule 132.485
2. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition
whether introduced by him or by any other party. 486 This is called rebutting a deposition.
IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS

TAKEN
484
485
486
1. No, because substitution of parties does not affect the right to use depositions previously
taken, when the action is dismissed and another action involving the same subject is afterward
brought between the same parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter as if originally taken
therefor.487
WRITTEN INTERROGATORIES
1. The purpose of a written interrogatory is to enable any party desiring to elicit material facts /
relevant facts from any adverse party by the filing and service upon the latter of a written interrogatory
to be answered by the party served or if party is public / private corporation or a partnership /
association by any officer thereof competent to testify in its behalf.488
2. An interrogatory is allowed under the same conditions as specified in Section 1, Rule 23 as to

when it is to be had.
HOW AND WHEN ANSWERED
1. Responses, which must be signed and sworn to, must be filed within 15 days from service,
unless the Court on motion and for good cause shown extends or shortens the time 489
2. Objections, if any, may be presented to the court within 10 days after service of notice as in the
case of a motion, answers shall then be deferred until objections are resolved, which shall be as early
a time as is practicable.490
HOW MANY INTERROGATORIES
1. No party may, without leave of court, serve more than one set of interrogatories to be
answered by the same party.491
SCOPE AND USE
1. It may relate to any matters that can be inquired into under Section 2, Rule 23 and the answers
used for the same purpose provided for by Section 4, Rule 23.492
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
1. Unless thereafter allowed by the court for good cause shown and to prevent failure of justice, a
party not served with written interrogatories may not be compelled by the adverse party to give
testimony in open court or give a deposition pending appeal.493
DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN

INTERROGATORIES
1. Any person, party or not can be required to or compelled to give a deposition upon written
interrogatories, while only the adverse party may be compelled to answer a written interrogatory.
2. A deposition upon written interrogatory is taken before an officer, while an adverse party
without appearing before an officer shall answer them in writing and under oath.
RULE 26 – REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
487
488
489
490
491
492
493
1. It is a written request for the (1) admission of the genuiness of any material and relevant
document described in and exhibited with the request or (2) the truth of any material or relevant
matter of fact set forth in the request.
2. A party may file and serve a request for admission upon any other party at any time after the
issues have been joined.494
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
1. Each of the matters of which an admission is requested shall be deemed admitted unless,
within a period designated in the request, which shall not be less than 15 days after service thereof or
such period which the Court will allow on motion, the party served files and serves upon the
requesting party a sworn statement, either denying specifically the matters is setting forth in detail the
reason why he cannot truthfully either admit / deny.
2. Objections, if any shall be submitted to the Court within the period for complying and prior to
filing of the Sworn Statement.
2.1 Compliance is then deferred until objections are resolved which should be done as early as
practicable.495
EFFECT OF ADMISSIONS
1. It is for the purpose of the pending action only and shall not constitute an admission by him for
any purpose or used against him in any other proceeding496
1.1 Although any admission, express or implied may be allowed by the court to be withdrawn or
amended upon such terms as may be just.497
EFFECT OF FAILURE TO SERVE
1. Unless otherwise allowed by the Court for good cause and to prevent failure of justice, a party
who fails to serve a request for admission of material / relevant facts at issue on the adverse party,
which are or ought to be within the latter’s personal knowledge, shall not be permitted to present
evidence on such facts.498
RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
HOW AVAILED OF
1. On motion of any party showing good cause, the court where the action is
pending may order, specifying the time, place and manner and prescribing such terms and conditions
as are just, that:
1.1 Any party to produce and permit the inspection, copying, photographing, by or on behalf of a
having party of any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, not privileged which constitute or contain evidence material to any matter involved in
the acition which are in his possession and control.
1.2 Or, permit entry upon designated land or other property in his possession / control for the
purpose of inspecting, measuring, surveying or taking photographs of the property or any designated
relevant object or operation thereon.499
494
495
496
497
498
499
2. This mode of discovery is resorted to determine the contents or status of documents or things
and/or the preservation of the same.
3. The requisites that have to be complied with to compel the other party to produce or allow the
inspection of documents or things are: (a) the party must file a motion showing good cause (b) notice
of the filing of the motion must be served on all parties (c) the motion must designate the papers or
things that are to be produced and inspected (d) such papers or things are not privileged (e) that they
constitute or contain evidence material to any matter involved in the litigation, and (f) that they are in
possession, control or custody of the other party. 500
RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS
WHEN AVAILED OF
1. In an action in which the mental or physical condition of a party is in controversy, a court in its
discretion, can order him to submit to physical / mental examination by a physician.501
1.1 It can be ordered only upon motion for good cause shown, with notice to the party to be
examined and to all other parties, specifying the time, place, manner, condition and scope of the
examination and person/s by whom it is to be made.502
2. Once the examination is completed, the party examined may request that a detailed written
report of the examining physician setting forth his findings / conclusions.
2.1 If requested and delivered, the party causing examination to be made is entitled to request and
receive from examined party a like report of the same mental / physical examination / condition
previously or thereafter made.
2.2 If request is refused, the court on motion may order delivery by the party examined on such
terms as are just. If the physician fails / refuses to make such report, his testimony may be excluded if
his testimony is offered at trial. 503
2.3 Note that a waiver of privilege is caused by requesting and obtaining a report of the
examination ordered or by taking the deposition of the examiner, the party examined waives any
privilege he may have in that action or any other involving the same controversy regarding the
testimony of every other person who has examined or may thereafter examine him in respect of the
same mental / physical examination.504 This refers primarily to the privilege between doctor and
patient.
RULE 29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY
EFFECTS OF THE REFUSAL TO COMPLY
1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will constitute

contempt of court. A citation in contempt shall ensue after the following steps have been followed or
observed:
1.1 If the party/deponent refuses to answer any question upon oral examination, the deposition
may be completed on other matters or adjourned as the proponent may prefer.
1.2 The proponent may then apply for an order to compel an answer in the proper court where the
deposition is being taken. This is also applicable to interrogatories.
500
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256
501
502
503
504
1.3 If granted, the court can order that answer be made and if it finds that refusal is without
substantial justification – it may impose upon deponent / counsel advising that no answer be given or
both – reasonable expenses and attorney’s fees in obtaining the order. If denied and the court finds
application was filed without substantial justification proponent / counsel advising application or both
may in the same manner be sanctioned.505
2. Other consequences that are applicable to Sec 1, Rule 29, Rule 27 and Rule 28, the Court
may issue an:
2.1 order that the matters regarding which the questions are asked, character / description of thing
or land / contents of a paper or physical / mental condition of a party shall be taken to be established
in accordance with the claim of the party obtaining the order.
2.2 order refusing to allow the disobedient party to support / oppose designated claims / defenses
– or prohibiting him from introducing in evidence the designated things / documents or items of
testimony or from introducing evidence of physical / mental condition.
2.3 order striking out pleadings or parts thereof or staying proceedings until the order is obeyed,
dismissing the action or proceeding or any part thereof, or rendering judgment by default against the
disobedient party.
2.4 In lieu or in addition to orders, the disobedient party can be ordered arrested except in relation
to a physical / mental examination.506
OTHER SANCTIONS
1. Expenses on refusal to admit, if requested party serves a sworn denial and party serving
request proves genuineness / truth, he may apply for an order directing the requested party to pay
expenses incurred in making proof plus attorney’s fees. Order is issued except if court finds good
reasons for denial or admissions were of no substantial importance. 507
2. Failure of a party to willfully appear before the officer taking the deposition, after being served
with a proper notice, or fails to serve answers to written interrogatories properly served, court may on
motion and notice: (a)Strike out all or any part of the pleading of that party (b) Dismiss the action /
proceeding / part thereof (c) Enter judgment by default against that party, (d) and ,in its discretion,
order payment of reasonable expenses and attorney’s fees508 but no expenses or fees are to be
assessed against the Republic of the Philippines. 509
RULE 30 – TRIAL
NOTICE OF TRIAL
1. Upon entry of a case in the trial calendar – the clerk shall notify the parties of the date of the
trial in such manner as to ensure receipt of the notice at least 5 days before such date.510
MAY TRIAL BE POSTPONED / ADJOURNED
1. Courts may adjourn a trial from day to day, and to any stated time – as the expeditious and
convenient transaction of business may require – but it shall have no power to adjourn for a longer
period than one month for each adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator of the Supreme Court.511
505
506
507
508
509
510
511
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
1. Can only be granted upon affidavit showing the materiality / relevancy of the evidence and that
due diligence has been used to procure it, BUT, if the adverse party admits the facts to be given in
evidence, or even if he objects or reserves the right to object to their admissibility, the trial shall not be
postponed.512
IF DUE TO ILLNESS OF PARTY OR COUNSEL
1. May be granted, if it appears upon affidavit or sworn certification that the presence of party /
counsel at the trial is indispensable and that character of illness is such as to render non-appearance
excusable.513
WHAT IS THE ORDER OF TRIAL
1. Subject to Section 2, Rule 31 on separate trials and unless the court orders for special
reasons, it shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
1.1 Plaintiff adduces evidence in support of his complaint
1.2 Defendant adduces evidence in support of his defense, counterclaim, crossclaim and 3rd party
complaint
1.3 Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim
th
and 4 party complaint.
1.4 Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them.
1.5 Parties against whom any counterclaim/ cross-claim has been pleaded shall adduce evidence
in support of their defense, in the order prescribed by the Court.
1.6 The parties may then respectively adduce rebutting evidence, unless the Court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original case.
1.7 Upon admission of the evidence, the case shall be deemed submitted for decision, unless the
court directs the parties to argue or submit memoranda or any further pleadings.
TRIAL OF ISSUES
1. The trial of issues shall be limited to the issues stated in the pre-trial order, unless the court
directs otherwise for special reasons.
2. If several defendants or 3rd party defendants and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.514
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE CASE FOR
JUDGMENT WITHOUT INTRODUCTION OF EVIDENCE
1. Yes, provided that the agreement be in writing.
2. If the parties agree only on some facts, trial shall be held as to the disputed facts515
3. There cannot be a judgment based on stipulation of facts in legal separation, annulment of

marriage and declaration of nullity.
512
513
514
515
3.1 Note that in the same cases, neither is there judgment by default, judgment on the pleadings,
summary judgment, judgment upon confession, judgment upon compromise, judgment based on
stipulation of facts.
WHAT ARE TO BE MADE OF RECORD
1. All proceedings, including any statement made by the judge with reference to the case, or to
any of the parties, witnesses or counsel shall be made of record in the stenographic notes. 516
WHO IS TO RECEIVE EVIDENCE
1. The judge is required to personally receive the evidence. But in default / ex-parte or when
parties agree in writing it may be delegated to the clerk of court who should be member of the bar
though he has no power to resolve objections to any question or admission of exhibits . Such shall be
resolved by the court upon submission of his report and transcripts within 10 days from termination of
the hearing.517
CAN ACTIONS BE SUSPENDED
1. Actions may be suspended as governed by the provisions of the Civil Code518: (a) if willingness
to discuss a compromise is expressed by one or both parties (b) if it appears that one of the parties,
before the commencement of an action / proceeding, offered to discuss a possible compromise but
the other party refused the offer.519
RULE 31 – CONSOLIDATION OR SEVERANCE
WHEN CAN CONSOLIDATION TAKE PLACE
1. When actions involving a common question of law or fact are pending before the court, it may
order joint hearing or trial of any or all the matters in issue in the actions, it may order all actions
consolidated. Then it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs / delay520
2. The rationale for consolidation is to have all cases, which are intimately related, acted upon by
one branch of the court to avoid the possibility of conflicting decisions being rendered. 521
MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN DIFFERENT

COURTS
1. Yes, involving the consolidation of civil action with criminal action, if filed before criminal action
and trial has not yet commenced.522
PURPOSE OF ALLOWING CONSOLIDATION
1. The purpose of allowing consolidation is to avoid multiplicity of suits, guard against oppression
or abuse, prevent delay, clearing of dockets, simplify the work of trial court, save unnecessary
expenses / costs.
2. Note though that if actions involve a common question of law or fact because they arise from a
single cause of action between the same parties, the remedy is dismissal on litis pendentia, not
consolidation.
516
517
518
519
Civil Code, Article 2030
520
521
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
522
Section 1, Rule 111 of the Rules on Criminal Procedure
3. An petition for the issuance of a writ of possession cannot be consolidated with an action to
annul the foreclosure notwithstanding the argument that the former case would become groundless
as the latter case is contesting the presumed ownership on which the petition for a writ of possession
is based. Strictly speaking the petition for the issuance of a writ of possession is not a judicial
process, it is a non-litigious process that is summary in nature. In contract, the action for annulment of
foreclosure is an ordinary civil action and is adversarial in character. The right of the petitioner in the
writ of possession case will be prejudiced by the consolidation with the annulment of foreclosure
case.523
WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER
1. Covers any claim, cross-claim, counterclaim or third party claim or any separate issue or of
any number of claims, cross-claims, counter claims, third party complaints, or issues in furtherance of
convenience or to avoid prejudice.524
RULE 32 – TRIAL BY COMMISSIONER
WHEN RESORTED TO
1. Trial by commissioners may be resorted to upon order of the court, which will then refer any or
all issues when:
1.1 Parties agree in writing and the commissioner may either be agreed upon or appointed by the
Court
1.2 When parties do not consent, on court’s own motion or upon application of either party, if may
be directed in the following: (a) Trial of an issue of fact requires examination of a long account (b)
The taking of an account is necessary for the information of the court before judgment or for
carrying judgment / or order into effect (c) A question of fact, other than upon the pleadings arises
upon motion or otherwise, in any stage of the case, or for carrying a judgment or order into effect.525
2. The term commissioner may include a referee, an auditor or examiner526
3. A commissioner is designated or authorized by an order of reference which will specify or limit

his powers, direct him to report only on or upon particular issues or do or perform particular acts,
receive or report evidence only and fix date for beginning / closing hearings and for the filing of the
report.
3.1 He shall then have and exercise the power to: (a)Regulate the proceeding before him (b)Do all
acts and take all measures necessary or proper for the efficient performance of his duties upon the
order (c)Issue subpoenas (d) Swear witnesses (e)Unless otherwise provided, rule upon the
admissibility of evidence 527
3.2 The trial shall then proceed before the commissioner/s in all respects as it would be held in
court.
PROCEDURE
1. Commissioner takes oath and be sworn to a faithful and honest performance of his duties 528
2. Upon receipt of the Order of Reference, and unless otherwise stipulated he shall forthwith set
a time and place for the first meeting of the parties and counsel within 10 days after the date of the
order of reference, and shall notify parties / counsel529
523
PNB vs. Gotesco, GR 183211, June 5, 2009
524
525
526
527
528
529
3. If parties / counsel fail to appear, he may proceed ex-parte or in his discretion, adjourn the
proceedings, giving notice to the absent party or counsel of the adjournment530
4. He shall avoid delay as he is duty bound to proceed with all reasonable diligence. Either party
on notice to other parties and the commissioner may apply for a court order to expedite proceedings /
report531
5. If witness refuses to obey a subpoena or give evidence. It shall constitute contempt of the
appointing court 532
6. Upon completion of trial / hearing / proceeding – he shall file with the court has report in writing
upon the matters submitted to him by the order of reference. When powers are not specified or
limited, he shall set forth his findings of fact and conclusions of law in his report. He shall also attach
all exhibits, affidavits, depositions, paper and transcripts of the testimonial evidence given 533
7. Notice is then given by the clerk to the parties of the filing of the report, they shall then be
allowed 10 days within which to signify objections to the findings in the report, is so desired.
7.1 Objections to the report based on grounds available to the parties during the proceedings
before the commissioner, other than as to the findings / conclusions, shall not be considered unless
made before the commissioner.534
8. Upon expiration of the period, the report shall be set for hearing, after which the court shall
issue an order – adopting, modifying, or rejecting the report in whole or in part or recommitting it with
instructions or requiring the parties to present further evidence to the commissioner 535
9. If the parties stipulate that the commissioner’s findings of facts shall be final, only questions of
law shall be thereafter considered. 536
9.1 Note that the findings of the commissioner are merely advisory and are not absolutely binding
upon the court.537
EXPENSES / COMPENSATION
1. They shall be reasonable as warranted by the circumstances and are to be taxed as costs
against the defeated party or apportioned as justice requires538
WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES
1. Reference to commissioners is required in the following cases: (a)Expropriation under Rule 67

to determine just compensation (b)Partition under Rule 69, when parties cannot agree as to the
manner of partition.
RULE 33 – DEMURRER TO THE EVIDENCE
WHO FILES AND WHEN FILED
1. The defendant is the party who may move for the dismissal of the action after presentation by
the plaintiff of evidence on the ground that upon the facts and the law, plaintiff has shown no right to
relief.539
530
531
532
533
534
535
536
537
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
538
539
EFFECTS OF FILING AND RESOLUTION
1. If granted, the action is dismissed, but if appealed and reversed, he loses his right to prevent
evidence and judgment is rendered in favor of the plaintiff540
1.1 An order dismissing a case for insufficiency of evidence is a judgment on the merits, it is
imperative that it be a reasoned decision and distinctly stating therein the facts and the law on which
it is based.541
2. If denied, defendant may present his evidence as it does not constitute a waiver of right to do
so.
2.1 The court should set a date for reception of the evidence of the defendant. It should not
proceed to grant the plaintiff relief.542
2.2 The order of denial is an interlocutory order and is therefore not appealable.
2.3 It may however be questioned by certiorari in case of grave abuse of discretion.543
3. It is an error on the part of the appellate court to order a remand, if dismissal is elevated to it
on appeal, it must decide on the evidence adduced by the plaintiff.544
DISTINGUISHED FROM A MOTION TO DISMISS
1. A motion to dismiss is usually filed before service and filing of an answer, while a demurrer is
made after the plaintiff rests his case.
2. A motion to dismiss is based on several grounds, while a demurrer is based only on the failure
of the plaintiff to show a right to relief.
3. A denial of the motion to dismiss will require the subsequent filing of an answer, while the
denial of a demurrer requires the subsequent presentation of evidence.
DISTINGUISHED FROM CRIMINAL CASES
1. In both civil and criminal actions, the basis for both is the insufficiency of evidence.
2. In a civil action, dismissal by demurrer is by motion only, while in a criminal action, dismissal
by demurrer is upon the court’s initiative or motion giving the prosecution an opportunity to be heard.
3. In a civil action, leave is not required prior to filing, while in a criminal action leave may / may
not be obtained. If obtained, there is no waiver of right to present evidence. If denied and if there is
no leave, it is a waiver
4. In a civil action, if granted, plaintiff’s remedy is appeal, while in a criminal action, if granted,
there is no appeal as such will constitute double jeopardy.
RULE 34 – JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
1. Can be had if the answer fails to tender an issue or otherwise admits the material allegations
of the complaint 545
540
Quebral v Court of Appeals, 252 SCRA 353
541
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
542
Northwest Airlines v. Court of Appeals, 284 SCRA 408
543
Katigbak v. Sandiganbayan, 405 SCRA 558
544
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
1.1 There is no motu propio rendition of judgment as it is always by motion.
2. An answer fails to tender an issue when it fails to comply with the requirements of specific
denial or is deemed to have admitted the allegations in the complaint.546
2.1 An answer admits the material allegations when it expressly confesses the truthfulness thereof
or where it omits to deal with them all.
3. Note that when an answer raises factual issues involving damages, it is not proper to render
judgment on the pleadings as presentation of evidence is required.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
1. Only the plaintiff in original complaint, or of the counter-claim, or of the cross claim, or of the
third party complaint may so move for judgment on the pleadings.
2. When a party moves for a judgment on the pleadings, and the same is granted by the trial
court, he hereby waives presentation of evidence.547
WHEN NOT ALLOWED
1. Judgment on the pleadings is not allowed in cases of: (a) Declaration of nullity of marriage (b)
Annulment of marriage (c)Legal separation.
1.1 In these cases, the plaintiff is required to prove the material facts regardless of whether the
answer tenders an issue or not.
RULE 35 – SUMMARY JUDGMENT
WHAT IS SUMMARY JUDGMENT
1. Is a devise for weeding out sham claims or defenses at an early stage of the litigation thereby
avoiding the expense / loss of time involved in a trial.
1.1 Its very object is to separate what is formal or pretended in denial or averment from what is
genuine and substantial so that only the latter may subject a suitor to the burden of trial.
1.2 This is also known as Accelerated Judgment548
WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN
1. Either plaintiff or defendant may move for a summary judgment:
2. If plaintiff or a claimant in the original complaint / counterclaim / cross-claim, he may file the
motion at any time after the pleading in answer to his claim has been filed on the ground that
although there is an apparent issue, the same is sham or false.549 .
2.1 Example: Answer admits obligation but states that the amount is wrong or less than that
claimed. If plaintiff has proof that there is written acknowledgment that as of a date or period prior to
that of the filing, the defendant was aware of the true amount, there can be summary judgment.
3. If movant is the defending party, he may file the motion at any time before or after he files his
answer on the ground that plaintiff’s claim against him is sham or false 550
545
546
Supra, Sections 8,9 and 11, Rule 8
547
Alfarero v. Sevilla, 411 SCRA 387
548
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
549
550
3.1 An issue is sham or false if it is not genuine. Genuine means that the issue of fact is one that
calls for the presentation of evidence.551
4. In either case, the motion must be filed along with supporting affidavits, depositions or
admissions.
5. The procedure for the filing and resolution of a motion for summary judgment is as follows:
5.1 Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion at least 10 days
before the date of hearing specified in the motion.
5.2 The defendant/plaintiff may serve opposing affidavits, depositions or admissions at least 3
days before the date of the hearing.
5.3 Court hears the motion.
6. If after hearing, it finds that the motion filed by plaintiff justified, thus there is no genuine issue
as to any material fact, it will render summary judgment for the plaintiff.
6.1 If not, it will deny, set the case for pre-trial, then trial.
6.2 If filed by the defendant and is justified, the complaint is dismissed, otherwise the case
proceeds with the filing of answer or pre-trial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1. They shall be made on personal knowledge, setting forth such facts as would be admissible in
evidence and shall show affirmatively that the affiant is competent to testify to the matters stated
therein.
1.1 Certified copies of all papers / parts thereof shall be attached and served therewith. 552
2. If affidavits have been determined to the satisfaction of the court that they are presented in bad
faith or solely for the purpose of delay, the Court may forthwith order the offending party to pay
reasonable expenses which may have been incurred by the other party, including attorney’s fees. It
may also find / adjudge, after hearing, that attending party / counsel are guilty of contempt.553
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1. The aggrieved party may appeal the summary judgment as such is final judgment as defined
by Section 1, Rule 41.
2. If denied, it is not appealable as order of denial of motion is interlocutory.

2.1 Certiorari may lie if the rendering of a summary judgment is clear, plain and patent but the
court refuses or declines to render it.
WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT
1. There can be a partial summary judgment when the Court finds that a judgment cannot be
rendered upon the whole case or for all the reliefs because there are controverted facts which require
trial.
1.1 A partial summary judgment is not appealable and shall be taken together with the judgment
that a trial court will render after trial. Thus, it cannot be executed.554
551
Excelsa Industries v Court of Appeals, 247 SCRA 560
552
553
554
DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS
1. Summary judgment is distinguished from a judgment on the pleadings as follows: (a) A

Judgment on the Pleadings is available when there is no genuine issue as answer fails to tender an
issue or otherwise admits material allegations, while Summary Judgment is available when there is
an apparent issue but is a sham, fictitious or false (b) A Judgment on the Pleadings is based
exclusively on the pleadings (complaint / answer), while Summary Judgment is based not only on
pleadings but also on affidavits, depositions and admissions, showing that except as to damages
there is no genuine issue (c) A Judgment on the Pleadings can be filed only after an answer has
been filed, while in Summary Judgment, there may or may not be an answer (d) A Judgment on the
Pleadings can only be had by the plaintiff, while in Summary Judgment, either plaintiff or defendant
may move for it (e) a motion for Judgment on the Pleadings is required to be served on adverse
party at least 3 days prior to the hearing, while a motion for Summary Judgment requires
service at least 10 days prior to the hearing
2. Judgment on the Pleadings is a judgment on facts as pleaded, Summary Judgment is a

judgment as summarily proven by affidavits, depositions, admissions. If an answer tenders an issue,
there can be no Judgment on the Pleadings but there can be Summary Judgment, if issue/s is later
shown to be false, sham or fictitious.
RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
WHAT IS A JUDGMENT
1. A judgment is a final ruling by a court of competent jurisdiction regarding the rights or other
matters submitted to it in an action or proceeding.555
2. It is the court’s official and final consideration and determination of the rights and obligations of
the parties.556
REQUISITES OF A JUDGMENT/FINAL ORDER
1. The requisites of a judgment or final order are: (a) It must be in writing (b) It must be personally
and directly prepared by the judge (c) It must state clearly and distinctly the facts and the law on
which it is based (d) It must be signed by the judge (e) It must be filed with the clerk of court.557
1.1 Note that a judge who has been reassigned can pen a decision as long he is still an incumbent
judge.558
1.2 A decision penned by the judge after his retirement cannot be validly promulgated and cannot
acquire binding effect. In the like manner, a decision penned during his incumbency cannot be
promulgated after his retirement. When a judge retires, all his authority to decide a case and write,
sign and promulgate the decision has also retired with him.559
1.3 It is not necessary that the judge who pens the decision is the one who heard and tried the
case.560
2. A decision that does not state clearly and distinctly the facts and law on which it is based
leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party
who is unable to pinpoint errors for review upon an appeal. A decision without anything to support it is
555
Macahilig v. Magalit, 344 SCRA 838
556
46 Am Jur 2d, Judgments
557
558
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
559
Nazareno v Court of Appeals, 378 SCRA 28
560
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12, 2006
a patent nullity.561A void judgment has no legal and binding effect, force or efficacy for any
purpose.562
2.1 There is no need though for a statement of all the facts and evidence presented. What is
required is that the factual and legal basis be distinctly and clearly set forth.563
2.2 The rule is also applicable to the denials of a petition for review or of a motion for
reconsideration564 and the resolution of a motion to dismiss.565
2.3. Resolutions of the Supreme Court denying petitions for review of the Court of Appeals are not
decisions within the purview of the Constitution566, neither are minute resolutions.567 When such is
issued, it is understood that the challenged decision or order, together with the findings of fact and
legal conclusions are deemed sustained.568
3. A Memorandum Decision is one which adopts by references findings of facts and conclusions
of law contained in the decision of an inferior tribunal. Note that this does not violate the rule as to
statement of the facts and law. This kind of a decision can only be rendered by an appellate court.
4. A Sin Perjuicio Judgment is one which is without a statement of facts and is to be

supplemented later by the final judgment. Such a judgment is void. It contains only the dispositive
portion and reserves the making of findings in a subsequent judgment. This shall have no effect. 569
5. A conditional judgment is one the effectivity of which depends on the occurrence or non-
occurrence of an event. Such a judgment is void because of the absence of a disposition and cannot
be executed.570
5.1 Where the judgment is for a sum of money to be determined by another, it is an incomplete
judgment which cannot be executed.571
PARTS OF A JUDGMENT
1. A judgment has two parts: (a) body of the decision or the ratio decidendi, and (b) the
dispositive portion or the fallo. It is the latter that is subject to execution as it should settle and declare
the rights and obligations of the party, finally, definitively, and authoritatively.572
1.1 In case of conflict, the fallo prevails, but if the inevitable conclusion from the body is so clear
that there is a mistake in the dispositive portion, the body will prevail. 573
1.2 An ambiguity in the judgment is best addressed by a motion for a clarificatory judgment
WHEN IS JUDGMENT RENDERED
1. Ordinarily after trial, except in judgment on the pleadings, summary judgment, judgment by
compromise, judgment based on stipulation of facts, judgment upon confession, order of dismissal in
instances when it considered as an adjudication on the merits, judgment in cases covered by the
Rules of Summary Procedure.
561
Miguel v JCT Group Inc, 453 SCRA 529
562
Guevarra v Sandiganbayan, 454 SCRA 372
563
Chan v Court of Appeals, 457 SCRA 502
564564
Section 14, Article VIII, Constitution
565
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
566
Novino v Court of Appeals, 8 SCRA 279
567
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
568
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1
569
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
570
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
571
DBP v. Tanada, 56 SCRA 470
572
LRTA v Court of Appeals, 444 SCRA 125
573
Poland Industrial Limited v. NDC, 467 SCRA 500
1.1 The periods for a court to render judgment is within 24 months from date of submission for
decision for the Supreme Court, within 12 months for lower collegiate courts, within 3 months for all
other lower courts.574
1.2 Extensions may be obtained from the Supreme Court on account of a heavy caseload or other
reasonable excuse. Without any extension, a delay in disposition is tantamount to gross
inefficiency.575
2. It is the filing of the judgment or final order with the clerk of court that constitutes rendition of
judgment, not the date of the writing of the decision or judgment, nor the signing thereof or even
promulgation thereof.576
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL
1. If no appeal or motion for reconsideration or new trial is brought within the time provided, the
judgment / final order shall forthwith be entered by the clerk in the Book of Entries of Judgment.
1.1 The date of finality shall be deemed the date of entry and shall contain the dispositive portion
and signed by the clerk which a certificate that such judgment / final order has become final and
executory.577
1.2 Note that date of entry retroacts to date of finality. Hence, both occur simultaneously by
operation of law.
2. Judgments that are final and executory can be corrected if they pertain to: (a) clerical errors (b)
nunc pro tunc, meaning then for now, entries or those intended to show what the judicial action was
but was then omitted from the records578 (c) whenever circumstances transpire after finality rendering
its execution unjust579 and (d) in cases of special and exceptional nature as when facts and
circumstances transpire which render execution impossible or unjust, when necessary to harmonize
the disposition with prevailing circumstances.580
3. Correction or amendment is also allowed if the purpose is to clarify an ambiguity caused by an

omission or mistake, judgment / final order.
4. A compromise after finality of a judgment is allowed. The basis of the allowance is the principle
of novation, which is a mode of extinguishing an obligation.581
5. Petition for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005
FOR WHOM JUDGMENTS MAY BE RENDERED
1. They may be given for or against one or more several plaintiffs or for or against one or more
several defendants.
2. Courts, when justice demands can require parties on each side to file adversary proceedings
as between themselves to determine their ultimate rights / obligations.582
3. In an action against several defendants, the courts if proper may render judgment against one
or more, leaving the action to proceed against the others.583 This is a several judgment. Example:
Judgment against a surety for its admitted liability.
574
Article VIII, Section 15, Constitution
575
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
576
Castro v Malazo, 99 SCRA 164
577
578
Briones v Vasquez, 450 SCRA 482
579
Siy v NLRC, GR No. 158971, January 25, 2006
580
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
581
Magbanua v. Uy, 458 SCRA 185
582
583
4. Separate judgments may be rendered when more than one claim for relief is presented, the
court at any stage – upon determination of the issues material to a particular claim and all counter
claims arising therefrom – may render a separate judgment disposing of the claim and proceeding
with the others but, it may stay execution or enforcement until rendition of subsequent judgment/s
and may prescribe such conditions to secure benefit thereof to the party in whose favor the judgment
is rendered.584 An example is when causes of action have been joined
5. Judgment against entity without juridical personality it shall set forth the individual names /
proper names if known of persons composing it.585
RULE 37 – NEW TRIAL OR RECONSIDERATION
WHEN FILED
1. A motion for new trial or reconsideration may be filed within the period for taking an appeal.586
GROUNDS FOR A MOTION FOR NEW TRIAL
1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could not have
guarded against and by reason of which the aggrieved party was probably impaired in his rights.
1.1 Fraud should be extrinsic or collateral, which refers to such acts that prevents a party from
having a trial / presenting his case in court. It refers to all kinds of deceptions, whether through
insidious machination, manipulation or concealment or misrepresentation that leads another party to
error.587 Examples are: false promise to compromise or connivance of lawyer with adverse party. This
does not include intrinsic fraud or acts of a party at trial that prevents fair determination. Examples
are: perjury, falsification.
1.2 Accident is a fortuitous event, circumstance, or happening; an event happening without any
human agency or if happening wholly or partly through huma n agency, is an event which under the
circumstances is unusual or unexpected by the person to whom it happens.588 Examples are sickness
of a party, lack of notice, when the same is sent to another address.
1.3 Mistake refers to some unintentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence. It pertains generally to mistake of fact, not of law. 589Examples
are failure to answer / act because he believed it unnecessary because of a compromise or other
document.
1.4 Excusable Negligence590 is an excusable omission to do something which a reasonable man,

guided by those considerations which ordinarily regulate the conduct of human affiants, would do; or
the reasonable doing of something which a prudent or reasonable man would not do. The failure here
is really that of the party or counsel, such as a non submission on time because of distance traveled.
2. Newly Discovered Evidence, which the aggrieved party could not with reasonable diligence,
have discovered or produced at the trial and which would probably alter the result.
2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such could not have been
discovered and produced at the trial with reasonable diligence (c) Evidence is material, not
cumulative, corroborative, or impeaching, and is of such weight that, if admitted, could probably
change the judgment.591
584
585
586
587
Maestrado v Court of Appeals, 327 SCRA 678
588
Jarco Marketing v Court of Appeals, 321 SCRA 375
589
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
590
Mckee v Intermediate Appellate Court, 211 SCRA 517
591
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
GROUNDS FOR MOTION FOR RECONSIDERATION
1. The grounds for a motion for reconsideration are: (a) Award of excessive damages (b)
Insufficiency of evidence to justify the decision or final order (c) Decision / final order is
contrary to law
HOW FILED / CONTENTS
1. It shall be made in writing stating the ground/s, written notice of which shall be served by the
movant on the adverse party.
2. If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable Negligence, it
should be supported by affidavits of merit, which may be rebutted by affidavits.
2.1 The requirement of an affidavit is essential because obviously a new trial would be a waste of
the court’s time if the complaint turns out to be groundless or the defense ineffective. 592
3. If based on newly discovered evidence it should be supported by affidavits of the witnesses by

whom such evidence is expected to be given or by duly authenticated documents which are proposed
to be introduced as evidence.
4. If it is a motion for reconsideration, it should point out specifically the finding / conclusions
which are not supported by the evidence / contrary to law, making express reference to testimonial /
documentary evidence or provisions alleged to be contrary to such findings or conclusions.
4.1 If not, the motion is considered a pro-forma motion. It does not toll the reglementary period of
appeal.593
4.2 Note also that such a motion without notice of hearing and proof of service has the same
effect594
IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES
1. Court may either deny or set aside the judgment or final order and grant a new trial 595
1.1 If denied, another motion may be filed, if it is based on a ground not existing nor available,
when the first motion has filed.596
1.2 Note that a motion for new trial is an omnibus motion, thus it should include all grounds then
available as those not included are deemed waived.
2. IF granted, the effects are (a) original order / judgment is vacated (b) the action shall stand trial
de novo (c) recorded evidence, insofar as material or competent to establish the issues, shall be used
at the new trial without need to for it to retaken.597
IF MOTION FOR RECONSIDERATION IS FILED – WHAT ENSUES
1. Court may deny or amend its judgment / final order if it finds that excessive damages are
awarded, or that it is contrary to the evidence or the law598
2. If denied, no second motion for reconsideration is allowed of the judgment or final order.
2.1 The filing of a second motion for reconsideration is a prohibited pleading. Thus it does not toll
the running of the reglementary period of appeal.599
592
Yap v Tanada, 163 SCRA 464
593
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
594
Firme v Reyes, 92 SCRA 713
595
596
597
598
599
Hongria v Hongria-Juarde, 425 SCRA 504
3. Note though that if the subject is not a judgment / final order or is an interlocutory order which
does not dispose of a case completely but leaves something more to be done upon its merits, a 2nd
motion for reconsideration may be allowed.
OTHER MATTERS PERTAINING TO SUBJECT MOTIONS
1. The periods for resolving the motions are: (a) MTC / RTC within 30 days from the time it is
submitted for resolution600 (b) Court of Appeals within 60 days after if declares it submitted for
resolution (c) Supreme Cour- no period is prescribed
2. The denial of both motions is not appealable, it is the judgment or final order that is
appealable.601
3. A motion for reconsideration is a pre-condition to an appeal in cases of (a) habeas corpus in

relation to custody of minors (b) annulment of marriage (c) declaration of nullity of marriage, (d) legal
separation.
RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE BASED
1. Judgment / final order is entered, or proceeding is thereafter taken against him through fraud,
accident, mistake or excusable negligence.
1.1 These grounds likewise support the petition when there is a failure to take an appeal.
2. The object to the petition is that the judgment, order, or proceeding be set aside or that the
appeal be given due course.
2.1 The petition must be verified.602
3. The other ways by which a final and executory judgment may be set aside is by Petition for
Certiorari under Rule 65 and by Annulment of Judgment under Rule 47.603
4. The petition is premised on equity. It should therefore be granted only in exceptional cases.
4.1 Petitioner must be able to prove fraud, accident, mistake or excusable negligence and the
existence of a good and substantial cause of action or defense, as the case may be.604
5. It cannot be availed of if there is another remedy in law605and is available only against a final
and executory judgment.606
6. Note though that if the case is covered by the Rules on Summary Procedure, a petition for
relief is a prohibited pleading.607
600
601
Barnes v Reyes, 411 SCRA 538
602
603
Arcelona v Court of Appeals, 280 SCRA 20
604
Torno v Intermediate Appellate Court, 166 SCRA 742
605
Alquesa v Cavada, Jr. 3 SCRA 428
606
Valencia v Court of Appeals, 352 SCRA 72
607
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
WHEN AND WHERE FILED
1. It is to be filed within 60 days after he learns of the judgment final order / proceeding but not
more than 6 month after such judgment / final order was entered or such proceeding taken.608
1.1 A few days after expiration of the 60 day period is not entirely fatal as long as it is still filed
within the 6 months period.609
1.2 But if it is a judgment by compromise, the 6 months period runs from date of rendition,
because a judgment upon a compromise is immediately executory and considered to have been
entered on the date it was approved by the trial court.610
1.3 The 6 months period is reckoned from entry of judgment or final order, not from its rendition.611
The phrase “from learning” means from notice of judgment or final order612
2. It is to be filed in the same case and in the same court where the judgment / final order was
entered or where proceeding is taken.
2.1 A petition for relief from judgment is not an available remedy in the Supreme Court nor in the
Court of Appeals. This is the rule notwithstanding the statement that a party in any court may file a
petition. The phrase applies only to a Municipal Trial Court or a Regional Trial Court.613
PROCEDURE
1. Filing of verified petition accompanied by affidavits showing the ground and the facts showing
the petitioner’s good and substantial cause of action or defense, as the case may be.
2. Order issued requiring adverse party to answer within 15 days from receipt614
2.1 If warranted a writ of preliminary Injunction may be issued as may be necessary for the
preservation of the rights of the parties, upon the filing by the petitioner of a bond to indemnify the
respondent for all damages and costs incurred if the petition is dismissed or the petitioner fails on the
trial on the merits.
2.2 However, such injunction shall not operate to discharge or extinguish any lien which the
adverse party may have acquired upon property of the petitioner.615
3. Adverse party answers, but if he does not, he cannot be declared in default.
4. Court hears and may grant relief if the allegations are true or deny if not true.
4.1 If granted, the assailed final order / judgment / proceeding is set aside and proceedings taken
as if a timely motion for new trial has been granted.616 There are in effect two hearings: the first is as
to the merits of the petition, the second is as the merits of the principal case.
4.2 If denied, the order is not appealable617 but may be subject of certiorari under Rule 65.
5. Court hears the case as if a timely motion for new trial or reconsideration has granted.
608
609
Mago v Court of Appeals, 303 SCRA 600
610
Manipor v Ricafort, 407 SCRA 298
611
Bayog v Natino, 258 SCRA 378
612
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
613
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
614
615
616
617
Supra, Section 1(b), Rule 41
5.1 If the subject is denial of an appeal, the lower court shall be required to give due course to the
appeal and elevate the records as if a timely and proper appeal has been made. 618
6. Judgment is rendered and is appealable
DISTINGUISHED FROM A MOTION FOR NEW TRIAL
1. They are distinguished as follows: (a) a motion for new trial is filed before judgment becomes
final, while a petition for relies if filed after a judgment becomes final (b) a motion for new trial applies
to judgments / final orders, while a petition for relief includes proceedings (c) the grounds for a
motion for new trial includes newly discovered evidence, while a petition for relief is limited to FAME
(d) a motion for new trial is filed within the period for perfecting an appeal, while a petition for relief is
filed within 60 days from knowledge but within 6 months from entry of judgment (e) a motion for new
trial if denied allows an appeal, while a petition for relief from judgment does not allow an appeal (f) a
motion for new trial is a legal remedy, while a petition for relief is a remedy in equity (g) a motion for
new trial requires no verification, while a petition for relief needs to be verified.
RULE 39 – EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
EXECUTION DEFINED
1. It is the remedy afforded for the satisfaction of a judgment.619It is the fruit and end of a suit.620
TWO KINDS OF EXECUTION
1. Compulsory Execution is one which issues as a matter of right, on motion, upon a judgment or
order that disposes of the action or proceeding upon expiration of the period to appeal, if no appeal is
taken or is perfected.
618
619
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731
620
Ayo v Violago Isnani, 380 SCRA 543
1.1 It also issues when appeal is duly perfected and finally resolved.
1.2 It may be applied for in the court of origin, on motion of judgment obligee – submitting certified
true copies of the judgment / final orders / orders sought to be enforced and entry thereof, with notice
to the adverse party. There is no need for return of records.
1.3. It may also be applied for in the appellate court, on motion in the same case, when the interest
of justice so requires, direct the court of origin to issue the writ of execution in the event of the refusal
of the court of origin to issue the writ. 621
1.4. A motion is required as there may be questions / disputes as to finality or amounts to be stated
in the writ.
2. Discretionary Execution is one that is issued, on motion, of the prevailing party for good
reasons. This is also known as execution pending appeal or exceptional execution 622
2.1 It is filed in the trial court while it has jurisdiction over the case and is in possession of either
the original record or the record on appeal, as the case may be, at the time of the filing of the
motion.623 The court, may in its discretion, order execution of judgment / final order even before the
expiration of the period to appeal.
2.2 If the trial court has lost jurisdiction, it is to be filed with the appellate court. A court loses
jurisdiction when there is perfected appeal and the period to appeal has expired. When a record on
appeal is required, it loses jurisdiction over the subject of the appeal upon perfection of the appeal
and expiration of the period to appeal.
2.3 The requisites of execution pending appeal are: (a) A motion by the prevailing party with notice
to the adverse party (b)There must be good reason for execution pending appeal (c) The good
reason must be stated in a special order. They must constitute superior circumstances demanding
urgency which will outweigh the injury or damage should the losing party secure a reversal of the
judgment on appeal.624
2.4 Examples of good reasons are: proven insolvency of the debtor625 deterioration of the
goods626, prevailing party’s inability to enjoy the decision, or it’s becoming illusory. In a recent case,
old age was found to be a good reason627
2.5 Stay of discretionary execution can be had upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is directed conditioned upon performance of the
judgment or final order allowed to be executed in case finally sustained in whole in part. The bond
may then be proceeded against on motion with notice to the surety628 but, the mere filing of a bond by
a successful party allow execution pending appeal nor constitute good ground.629
3. There are judgments not stayed by appeal such as judgments in injunction, to include a
judgment dissolving it630 receivership, accounting and support and such other judgments as are now
or hereafter be declared to be immediately executory, shall be enforceable upon their rendition, they
shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court.
3.1 If stayed, it shall be upon such terms as to bond or otherwise as may be considered proper for
the security / protection of the rights of the adverse party. On appeal though, the appellate court may
make an order – suspending, modifying, restoring or granting the injunction, receivership, accounting
or award of support.631
621
622
623
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
624
Jaca v Davao Lumber Company, 113 SCRA 107
625
Lao v Mencias, 21 SCRA 1021
626
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
627
FEBTC v Toh, Sr. 404 SCRA 590
628
629
International School v. Court of Appeals, 309 SCRA 474
630
ITC v PTA, 341 SCRA 90
631
3.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are immediately
executory.632 The same is true of a judgment by compromise.633
4. Separate, Several or Partial Judgments may executed under the same terms and conditions
as execution of a judgment / final order pending appeal.634
4.1 If execution is granted by the judgment/final order is reversed on appeal or totally / partially or
annulled, on appeal or otherwise, the trial court, on motion, may issue orders of reparation or
restitution of damages as equity and justice may warrant under the circumstances.635
4.2 The phrase “or otherwise” applies to reversal after a petition for relief has been granted under
Rule 38 and upon a favorable judgment in a petition for annulment of judgment under Rule 47
5. The Court of Appeals has no authority to issue immediate execution pending appeal of its own
decision. Discretionary execution applies only to a judgment or final order of the trial court. 636
WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION
1. Only judgments or final orders, or one which disposes of the whole subject matter or
terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution
that which has been determined.
1.1 Distinguishing a “final judgment or order” from one which has become “final and executory”. A
final judgment is one that finally disposes of a case, leaving nothing more to be done by the court in
respect thereto. It is an adjudication on the merits. Once rendered, the task of the court is ended, as
far deciding the controversy or determining rights and liabilities of litigants. Nothing more is to be
done but to await the parties’ next move, and ultimately, to cause execution of the judgment once it
becomes final and executory.637
1.2 An exception for the need to await a final judgment or order is a judgment for support
pendente lite.638 The principal case in this instance still continues.
1.3 As a rule, after a judgment becomes final and executory, execution becomes a ministerial duty
of the court.639
1.4 Execution may however be denied when: (a) judgment has been complied with voluntarily 640(b)
When the judgment has been novated (c) When a petition for relief has been filed and a writ of
injunction is granted (d) When execution is sought more than five years from entry of judgment (e)
When execution is sought against exempt property (f) when the judgment is conditional
HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED
1. A final and executory judgment may be enforced by (a) By motion within 5 years from date of
entry of judgment (b) By action after the lapse of 5 years from date of entry of judgment but
before barred by statute of limitations, which is 10 years. This is known as “action to revive
judgment”.641
2. The revived judgment may also be enforced by motion within 5 years from date of entry, and
thereafter by action before it is barred by the statute of limitations. The purpose of the action is not to
re-examine the issues as the cause of action is the judgment itself and not the merits of the original
action.642
632
633
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
634
Supra, Section 2 (b), Rule 39
635
636
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
637
Denso Philippines, Incorporated v IAC, 148 SCRA 280
638
639
Fideldia v. Songcuan, 465 SCRA 218
640
Cunanan v Court of Appeals, 25 SCRA 263
641
642
Laperal v Ocampo, 410 SCRA 339
The proper venue of an action for revival of judgment depends on the determination of whether the present
action for revival is a real or personal action.643
3. Reconciling the actions upon a judgment under Article 1144 of the Civil Code, which
prescribes in 10 years, there is no conflict as the Rules of Court refer to the manner of execution of
the judgment.
3.1 Note that this is not applicable in land registration cases or other special proceedings but only
in civil actions.
4. There are however instances when judgment / final order can still be enforced by motion even
after lapse of 5 years when the delay is caused or occasioned by the actions of the judgment obligee
or incurred for his benefit or advantage.644
4.1 The liberal construction of the rule resulting in non inclusion of the period of delay occasioned
by the acts of the judgment obligee in the counting of the period was resorted to as strict adherence
to the letter of the law would result in absurdity and manifest injustice.645
ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION
1. A writ of execution shall (a) Issue in the name of the Republic of the Philippines from the Court
that granted the judgment (b) State the name of court, case number, title, and dispositive portion
(c) Require the sheriff or other proper officer to whom it is directed to enforce the writ according to
its terms.
2. The terms or manner so provided is as follows: (a) execution be against property of judgment
obligor, to satisfy judgment with interest, out of his real or personal property (b) if against real or
personal property, in the hands of personal representatives, heirs, devisees, legatees, tenants
trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property (c) if it be
for sale of real / personal property, to sell it, describing it, and apply the proceeds in conformity with
the judgment, the material parts of which shall be recited in the writ (d)if it be for delivery of the
possession of real / personal property, to deliver the possession of the same, describing it, to the
party entitled thereto and to satisfy any costs, damages, rents, profits covered by the judgment out of
the personal property of the person against whom it was rendered, and if no sufficient personal
property be present, out of real property (e) in all cases, the writ shall specifically state the amount of
interest, costs damages, rents, profits due as of the date of issuance of the writ aside from the
principal obligation under judgment646
IF EXECUTION IS FOR SUMS OF MONEY
1. Immediate payment on demand from judgment obligor payable in cash of certified bank check
payable to the obligee or any form acceptable to him plus lawful fees to be turned over to the clerk of
court of the court that issued the writ.
1.1 If judgment obligee is not present to receive the amounts, it shall be delivered by judgment
obligor to the sheriff, turning in all amounts on the same day to the clerk of court or if not practicable,
to deposit in the nearest government depository bank of Regional Trial Court in the locality, then
arrangements are then made for remittance to clerk of court issuing the writ for delivery to the
judgment obligee. In no case shall the sheriff demand payment by check payable to him.
2. Satisfaction by Levy, if not paid in cash, the sheriff shall levy on the properties of judgment
obligor of any kind / nature which may be disposed of for value and not otherwise exempt from
execution.
643
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
644
Camacho v Court of Appeals, 287 SCRA 611
645
Republic v Court of Appeals, 260 SCRA 344
646
2.1 The obligor is given the option to immediately choose which property or part thereof may be
levied upon to satisfy judgment. If not, sheriff shall levy on personal properties first, if any, then on
real properties if insufficient to answer for judgment.
2.2 Sheriff can only sell sufficient portion of the personal / real property levied upon when there is
more property then is sufficient to satisfy judgment, on so much of it to satisfy judgment is to be sold.
The conduct of the sale shall be the same as that of execution for the sale of property.
2.3 The effect of a levy is that it shall create a lien in favor of the judgment obligee over the right,
title and interest of the judgment obligor in such property at the time of levy, subject to liens /
encumbrances then existing. Hence, the effect then on 3rd persons will be dependent on when their
liens / encumbrances, if any, was annotated or interposed.647
2.4 If a levy is made beyond the period of 5 years from entry of judgment. The same is not valid as
lifetime or a writ of execution is 5 years from date of entry of judgment.648
3. Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and
other credits. Examples: bank deposits, financial interests, royalties, commissions, and other personal
property. These are not capable of normal delivery and are in the possession and control of third
parties.
3.1 Levy shall be made by serving notice on the person owing such debts or having in his
possession or control such credits to which the judgment obligor is entitled.
3.2 The garnishee, shall then make a written report to the court from service of notice stating
whether or not the judgment obligor has sufficient funds or credits to satisfy the judgment. The
garnished amount shall then be delivered directly to the judgment obligee within 10 working days
from service of notice on him requiring delivery, less lawful fees to be paid directly to the Court.
3.3 If there are 2 or more garnishees, the judgment obligor shall have the right to indicate the
garnishee/s who shall deliver, otherwise it shall be the choice of the judgment obligee. 649
4. Writ is to be returned to the Court issuing it immediately after judgment has been satisfied in
part or in whole. If not / cannot be satisfied in full within 30 days from receipt of the writ, the officer
shall report to the court and state the reason therefor. Such writ will continue to be in effect during the
period within which judgment may be enforced by motion, the officer shall then make a report to the
Court every 30 days on the proceedings taken thereon until the judgment is satisfied in full or its
effectivity expires. The returns / reports shall set forth the proceedings taken, filed with the court and
copies promptly furnished parties.650
EXECUTION FOR SPECIFIC ACTS651
1. If conveyance, delivery of deeds or other specific acts are required, a party is directed to
comply if he fails to do so within the period specified, court may direct the act to be done at the cost of
the disobedient party, by some other person appointed by the court and when so done it is as if done
by the disobedient party. If it involves real / personal property located in the Philippines, the court in
lieu of directing a conveyance thereof may by an order divest title and vest it in others, which shall
have the force and effect of a conveyance executed in due form of law.
IF EXECUTION IS FOR THE SALE OF REAL/PERSONAL PROPERTY
1. The property is to be sold, describing it, and applying the proceeds in conformity with the
judgment.
647
648
649
650
651
2. Notice must be given as follows: (a) Perishable property – posting of written notice(of time,
place, sale in 3 public places preferably in conspicuous areas of the municipal/city hall, post office,
public market, for such a time as may be reasonable depending on circumstances (b) Personal
property – posting of written notice in 3 public places for not less than 5 days (c) Real property –
posting of written notice in 3 public places for at least 20 days, describing the property, where it is to
be sold, and if assessed value is in excess of PHP 50,000.00, publishing the notice in a newspaper of
general circulation once a week for 2 consecutive weeks. In all cases – written notice is also given to
judgment obligor at least 3 days before the sale except in (a) notice is given at any time in the same
manner as personal service of pleadings. 652
2.1 The contents of the notice are the place, date exact time not earlier than 9:00 am or later than
2:00 pm. The place may be agreed upon. If not agreed upon: (a) Real/Personal property not capable
of manual delivery shall be sold at the Office of the Clerk of Court of Regional or Municipal Trial
Court issuing the writ (b) If capable of manual delivery, where personal property is located.
2.2 If there is a sale without notice, the officer is liable for punitive damages in the amount of PHP
5,000.00 in addition to actual damages sustained by injured person. If the notice is defaced or
removed before the sale / satisfaction of the judgment, the person so defacing or removing shall be
liable to pay PHP 5,000.00 plus actual damages. These are recoverable upon motion.653
3. The manner of sale shall be by public auction. This applies also when property is levied upon.
3.1 Sale is made to the highest bidder, to start at the exact time stated in the notice.
3.2. If sufficient property has been sold, no more shall be sold and any excess property / proceeds
shall be delivered to the judgment obligor or his representative, unless otherwise directed by the
court. Like when other debts due to be paid
3.3 If sale is of real property consisting of several known lots, they must be sold separately or if
claimed by a 3rd person, he may require it to be sold separately.
3.4 Personal property capable of manual delivery must be sold within view of those attending and
in such parcels so as to bring the highest price.
3.5 The judgment obligor, if present may direct the order in which the property is to be sold when
such property consists of several parcels / known lots which can be sold to advantage separately.
3.6 No officer or his deputies, can be a purchaser, nor be interested directly or indirectly in any
purchase at such sale.654
3.7 By written consent of both judgment obligor / obligee or their duly authorized representatives,
the auction sale may be adjourned to any date or time agreed by them. Without an agreement –
officer may adjourn from day to day if it becomes necessary. 655
3.8 When a purchaser refuses to pay , the officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned thereby, like when it is resold for less. But, the
court may order the refusing purchaser to pay unto the Court such loss, and punish him with
contempt if he disobeys. Payment shall inure to the benefit of party entitled to execution, unless he
has been satisfied, in which case to the judgment obligor. In addition, officer may thereafter reject all
bids of such purchaser.656
3.9 The judgment obligee can be a purchaser, and if no 3rd party claim has been filed, he need not
pay the amount if it does not exceed the amount of his judgment. If it does he shall only pay the
excess. 657
652
653
654
655
656
657
3.10 If the judgment obligor pays the judgment before sale, the sale is prevented by the payment
required by execution and cost incurred therein658
3.11 A third party claimant is one who claims title to, or right of possession of the property levied
upon by the sheriff. Note that there may be a 3rd party claimant in execution, preliminary attachment
and replevin.
3.12 A third party claimant can file a 3rd party claim or a terceria by executing an affidavit showing
his title thereto, or right of possession over the property being levied upon, stating therein the grounds
of such title or right, serving a copy thereof to the sheriff and judgment obligee. If filed, sheriff is not
obliged to proceed unless the judgment obligee files an indemnity bond in an amount not less than
value of the property. No action on the bond may enforced by the third party claimant unless filed
within 120 days from date of the filing of the bond. If bond is filed, a 3rd party claimant may vindicate
his claim within the period or he may institute a separate action to vindicate his claim but nothing also
prevents the judgment obligee from claiming damages in the same or separate action against a 3 rd
party claimant who files a frivolous / spurious claim. Note that if writ is issued in the name of the
Republic of the Philippines, no bond is required. Officer is to be represented by the Solicitor General,
and if damages are assessed, it is to be paid out of the National Treasury. 659
4. After a sale, a conveyance is to be made as follows:
4.1 Real Property – a certificate of sale is given stating the description of the property, price paid
for each distinct lot / parcel, whole price paid and a statement that the right of redemption shall or will
expire one year from date of registration of the certificate660 making mention of the existence of a 3rd
party claim, if any. 661 Note: the requirement of mentioning a 3rd party claim, if any, applies also to
conveyance over personal property.
4.2 The parties entitled to redeem are: (a) Judgment obligor, or his successor in interest, in
whole or any part of the property, or (b) A creditor having a lien by virtue of an attachment, judgment,
mortgage on the property sold or on some part thereof, subsequent to the lien under which the
property is sold. Such redeeming creditor is called a redemptioner.662
4.3 The judgment obligor / redemptioner may redeem the property from the purchaser at any time
within 1 year from registration by paying the amount of purchase, plus 1% interest per month at the
time of redemption, together with the amounts of assessments / taxes paid at the purchase and
interest on the same at the same rate, and, if the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment, the amount of the lien plus interest.
4.4 Property so redeemed may be redeemed within 60 days after the last redemption upon
payment of the sum paid, w/ 2% interest thereon plus taxes / assessments paid, and amount of liens
held by redemptioner prior to his own, and so forth.
4.5 Written notice however of redemption must be given to the officer who made the sale and
duplicate with the Registry of Deeds and if any assessments / taxes / prior liens are paid, notice must
also be given to above parties otherwise, redemption can be effected without paying taxes /
assessments / liens. Note: Proof required of redemption under Section 30
4.6 Proof of Redemption-A redemptioner must produce to the officer, or person from whom he
seeks to redeem, and serve with notice to the officer, a copy of judgment or final order, certified by
the clerk of court or the mortgage / other lien, certified copy by the Register of Deeds / or
memorandum thereof and affidavit showing amount due on the lien.663
4.7 If the Judgment Obligor redeems, -He must make all the payments required to effect a
redemption by a redemptioner. Thereupon, no further redemption is allowed and he is restored to his
658
659
660
661
662
663
estate. The person upon whom redemption payment is made shall execute a Certificate of
Redemption after payment. Certificate is then filed with the Office of the Registry of Deeds.664
4.8 Pending redemption, use of the real property shall remain with the person in possession at
the time of sale or entitled to possession afterwards may continue to use it in the same manner as it
was previously used, or to use in the ordinary course of husbandry or to make necessary repairs to
buildings thereon while he occupies the property, but the court in proper cases, may restrain the
commission of waste on the property by injunction on the application of the purchaser / judgment
obligee with or without notice. 665
4.9 Rents, earnings and income shall belong to the judgment obligor until the expiration of his
period for redemption. Neither shall the purchaser or judgment obligee be entitled to the same when
such property is in the possession of a tenant.666
4.10 If no redemption is made within one year from date of registration, the purchaser is entitled to
possession and conveyance or if so redeemed – whenever 60 days has elapsed and no other
redemption is made and the time for redemption has expired, the last redemptioner is entitled to
possession and conveyance but, in all cases the judgment obligor is entitled to have the entire period
of one year.
4.11 Officer shall execute the deed / or his successor in interest with the same effect. Once done,
the purchaser / redemptioner shall be substituted to and acquire all the rights title and interest and
claim of the judgment obligor to the property as of the time of the levy. Possession shall then be given
unless property is held by a 3rd party adverse to the judgment obligor.667 Manner of effecting transfer
of possession is by writ of possession.668
4.12 If the sale is rendered ineffective as when the purchaser of real property or his successor in
interest fails to recover possession or is evicted therefrom as a consequence of: irregularities in the
proceedings concerning the sale, judgment has been reversed or set aside pursuant to a petition for
relief,property is exempt from execution , or that 3rd person has vindicated his right 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 judgment revived in his name, if a redemptioner for the whole price with interest, or
so much thereof as has been delivered to the judgment obligor. The judgment revived shall have the
same force and effect as an original judgment would have as of the date of revived and no more. 669
4.13 If it involves personal property that is capable of Manual Delivery, the officer must deliver the
property and if desired, execute and deliver a certificate of sale, which shall conveys all right with the
judgment obligor had in such property as of date of levy on execution or preliminary attachment. 670
4.14 If Incapable of Manual Delivery, the officer must execute and deliver a certificate of sale and
such shall convey all rights to purchaser as of the date of levy on execution or preliminary
attachment. 671
EXECUTION IS FOR DELIVERY OR RESTITUTION OF REAL PROPERTY
1. The officer shall demand of the person against whom judgment is rendered and all persons
claiming rights under him to peaceably vacate the property within 3 working days and restore
possession thereof to the judgment oblige otherwise the officer shall oust all such persons thereon,
with assistance from peace officers employing reasonable means and place the judgment obligee in
possession.
1.1 Any costs, damages, rents, profits shall be satisfied in the same manner as a judgment for
money.
664
665
666
667
668
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
669
670
671
EXECUTION IS FOR REMOVAL OF IMPROVEMENTS
1. The officer shall not destroy, demolish or remove except upon special order of the court,
issued upon motion / hearing and after the judgment obligee had failed to remove within a reasonable
time fixed by the rules.
EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY
1. The officer shall take possession and forthwith deliver it to party entitled thereto and satisfy any
judgment for money as herein provided. 672
EXECUTION OF SPECIAL JUDGMENTS
1. Performance of an act other than those enumerated in Section 9 and 10, a certified copy of the
judgment shall be attached to the writ of execution and served upon party against whom it is
rendered, or upon any person required thereby, or by law, to obey the same.
1.1 If such party / person disobeys, they may be punished for contempt.673
2. Examples of special judgments are judgments in cases for Injunction or Quo warranto
WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION
1. Except as otherwise expressly provided by law, the following property, and no other, shall be
exempt from execution:
(a) The judgment obligor’s family home as provided by law, or the homestead in which he resides,
and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the
judgment obligor may select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
(f) Provisions for individual libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three
hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand
pesos owned by a fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services
within the four months preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;
(l) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;
(m) Properties specially exempted by law.
672
673
2. But no article or species of property mentioned in this section shall be exempt from execution
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon.674
3. Claims for exemption from execution of properties must be presented before its sale on
execution by the sheriff.675
WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY
1. It may issue or be enforced:
1.1 In case of death of judgment obligee, upon application of his executor or administrator
1.2 In case of death of judgment obligor, against his executor, administrator, or successor in
interest, IF it be for recovery of real or personal property or enforcement of a lien.
1.3 Death of judgment obligor after execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation and the officer must account to the
executor or administrator for any surplus, if any. 676
AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED
1. There is a right to contribution or reimbursement if: more than a due portion of the judgment is
satisfied out of the proceeds of the sale of the property of one of them, or, one pays, without sale,
more than his proportion.
1.1 If judgment is upon an obligation of one of them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of property or before a sale, he may compel repayment
from the principal.677
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION IS NOT
CARRIED OUT OR JUDGMENT IS NOT SATISFIED
1. Examination of the judgment obligor concerning his property and income before the court or a
commissioner – and proceedings may thereafter may be had for the application of his property or
income towards satisfaction of judgment but no obligor can be required to appear before a court or
commissioner outside the province or city where he resides.678
2. Examination of the obligor of the judgment obligor upon proof shown to the satisfaction of the
court that a person, corporation or other juridical entity has property of the judgment obligor or is
indebted to him, the Court may by order require the person, corporation or juridical entity to appear
before the Court / commissioner and be examined concerning the same.
2.1 The service of the order shall bind all credits due the judgment obligor and all money / property
of the judgment obligor in the possession / control of the person, corporation or juridical entity.
2.2 Notice of all proceedings may also be required by the court.679
2.3 Obligor of judgment obligor may thereafter pay after writ of execution on property has been
issued, the amount of his debt or so much thereof as may be necessary to satisfy the judgment and
the sheriff’s receipt shall constitute sufficient discharge for the amount so paid or directed to be
credited by the judgment obligee on the execution680
674
675
Gomez v Gealone, 203 SCRA 474
676
677
678
679
680
2.4 In relation to both remedies – party or other person may be compelled to appear by subpoena
and failure to obey an order, subpoena or be sworn or answer as a witness or subscribe to a
deposition is punishable by contempt. 681
3. Order for application of property and income to satisfaction of judgment. – it may include his
property or money due the judgment obligor, not exempt from execution, in his hands or other person,
corporation or juridical entity may be applied to satisfaction of judgment subject to any prior rights
over such property.
3.1 Also, if upon investigation of current income and expenses, the earnings of judgment obligor
are more than necessary for the support of his family, the court may order that judgment be paid by
monthly installments, failing in which he may be punished for indirect contempt. 682
4. Appointment of a receiver – for the property of the judgment obligor, it may also forbid a
transfer or other disposition of or interference with the property of the judgment obligor not exempt
from execution.683
4.1 Thereafter, there can be a sale by the receiver upon order of ascertainable interest (or the real
estate itself) of a judgment obligor in real estate in the place where proceedings are had as mortgagor
/ mortgagee or otherwise and if his interest can be ascertained without controversy, the receiver may
be ordered to sell and convey such interest or real estate or the interest of the obligor therein. All
proceedings to be approved by the Court before execution of the deed.684
5. In relation to the foregoing, if it appears that a person or corporation, alleged to have property
of the judgment obligor denies or claims an interest in the property adverse to him, the court may: (a)
order judgment obligee to institute an action against such person or corporation for the recovery of
such interest or debt (b) forbid a transfer / disposition of such interest / debt within 120 days from
notice of the order (c) punish disobedience of such order as for contempt. The order may be modified
or vacated at any time by the court that issued it, or by the court in which the action is brought, upon
terms as may be just.685
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED

1. Entry of satisfaction of judgment by the Clerk of Court in Court Docket and Execution Book
upon a return of the writ indicating satisfaction or admission of satisfaction by the judgment oblige or
counsel.686
2. It can also be entered upon demand of judgment obligor when judgment is satisfied in fact or
upon notice / motion, the court may order entry without admission687
EFFECT OF JUDGMENTS OR FINAL ORDERS
1. The effect of a judgment / final order rendered by a court in the Philippines, having jurisdiction
to pronounce the same.
(a) In case of a judgment / final order against a specific thing, or in respect to probate of a will or
administration of the estate of a deceased person, or in respect to personal, political or legal condition
/ status of a particular person or his relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will, administration status or relationship of the person. However,
probate or granting of letters of administration shall only be prima facie evidence of the death of the
testator.688
(b) Other cases, judgment / final order is with RESPECT TO THE MATTER DIRECTLY
ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN RAISED IN RELATION
THERETO is CONCLUSIVE BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST
681
682
683
684
685
686
687
688
Supra, Section 47 (a), Rule 39
BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF THE ACTION OR SPECIAL
PROCEEDING LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE
SAME CAPACITY.689
(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment / final order which appears on its face to have
been so adjudged or which was actually and necessarily included therein or necessary thereto. 690
1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is also known as “bar
by prior judgment”. This exists when between the first case where judgment is rendered, and the
second case where such judgment is invoked, there is identity of parties, subject matter, and cause of
action. When all three are present, the judgment on the merits rendered in the first constitutes an
absolute bar to the subsequent action.
1.2 Paragraph (c) is illustrative of what is known as “conclusiveness of judgment”, when between
the first case wherein judgment was rendered and the second case wherein such judgment is
invoked, there is only identity of parties, but there is no identity of cause of action, the judgment is
thus conclusive in the second case, only as to the matters actually and directly controverted and
determined, and not as to matters merely involved therein.691
1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF ISSUES or

COLLATERAL ESTOPPEL OR IMMUTABILITY OF JUDGMENTS espouses that issues actually and
directly resolved in a former suit cannot again be raised in any future case between the same parties
involving a different cause of action.692Once a case is decided with finality, the controversy is settled
and the matter is laid to rest. The prevailing party is entitled to enjoy the fruits of victory while the
other party is obliged to respect the court’s verdict and comply with it. 693
1.4 The doctrine of “ The law of the case” states that whatever has once been irrevocably
established as the controlling legal rule of decision between the same parties, whether correct on
general principles or not, so long as the facts on which the decision was predicated continue to be the
facts of the case before the court.694 This principle generally finds application in cases where an
appellate court passes on a question and remands the case to the lower court for further
proceedings. The question thus settled by the appellate court becomes the law of the case upon a
subsequent appeal. Consequently, the court reviewing the succeeding appeal will not re-litigate the
case but instead apply the ruling in the previous appeal.695
2. Effect of a foreign judgment/final order: (a) If upon a specific thing, the judgment / final order is
conclusive upon title to the thing (b) If against a person – it is presumptive evidence of a right
between the parties and their successors in interest by subsequent title (c) In either case, judgment /
final order may be repelled by evidence of want of jurisdiction, want of notice, collusion, fraud, clear
mistake of fact / law.696
3. Effect of judgment against a surety: When a judgment is rendered against a party who stands
as surety for another, the latter (principal) is also bound from the time he has notice of the action or
proceeding, and an opportunity at the surety’s request to join in the defense.697
689
Supra, Section 47 (b), Rule 39
690
691
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
692
Tan v Court of Appeals, 363 SCRA 444
693
Siy v NLRC, GR No. 158971, August 25, 2005
694
Boiser v NTC, 169 SCRA
695
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
696
697
APPEALS
PRELIMINARIES
1. As a general rule, the remedy to obtain a reversal or a modification of judgment on the merits
is appeal. This is true even if the error ascribed to the court is lack of jurisdiction over the subject
matter, or exercise of power in excess thereof, or grave abuse of discretion in the findings of law or
fact set out in the decision.698
2. The right to appeal is not part of due process but is a mere statutory privilege that has to be
exercised only in the manner and in accordance with the provisions of law. 699
698
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
699
Cu-Unjieng v Court of Appeals, 479 SCRA 594
3. Where the judgment or final order is not appealable, the aggrieved party may file the
appropriate civil action under Rule 65. An example is a judgment in summary proceeding case under
the Family Code.
4. On appeal, a party may not change his theory of the case. 700 Hence, defenses not pleaded in
the answer may not for the first time be raised on appeal.701
4.1 A basic appellate rule is that the court shall not consider no error unless stated in the
assignment of errors.702
4.2 The exceptions to the rule are: (a) it is an error that affects jurisdiction over the subject matter
(b) it is an error that affects the validity of the judgment appealed from (c) it is an error that affects
proceedings (d) it is an error closely related to or dependent on an assigned error and properly
argued in the brief, or (e) it is a plain and clerical error.
4.3 The Supreme Court is clothed with ample authority to review matters, even if they are not
assigned as errors on appeal if it finds that their consideration is necessary in arriving at a just
decision of the case.703
5. Payment of docket fees is mandatory for the perfection of an appeal.
5.1 Without payment, the court does not acquire jurisdiction over the subject matter of the action
and the decision sought to be appealed becomes final and executory.704
5.2 However, the rule is qualified: (a) the failure to pay appellate docket fees within the
reglementary period only allows discretionary dismissal, not automatic dismissal of the appeal, (b)
such power should be used in the exercise of the court’s sound discretion in accordance with the
tenets of fair play and with great deal of circumspection considering all attendant circumstances.
RULE 40- APPEALS FROM THE MTC TO THE RTC
WHERE CAN AN MTC DECISION BE APPEALED
1. A judgment / final order of the Municipal Trial Court is appealable to the Regional Trial Court
exercising jurisdiction over the area to which the Municipal Trial Court pertains.
2. In the appeal, the case title remains, but party appealing is designated as appellant, while the
adverse party is designated as the party-appellee.705
WHEN CAN APPEAL BE TAKEN
1. 15 days after notice to the appellant. If record on appeal is required 30 days after notice but
the period can be interrupted by a motion for reconsideration or for new trial, although no motion to
extend time for its filing is allowed. 706
2. Note the “fresh period rule” that is now applicable to an appeal under Rule 40, Rule 41, Rule
43 and Rule 45, which allows a party intending to appeal another 15 days from receipt of an order
denying a motion for reconsideration or new trial to file an appeal 707
HOW IS APPEAL TAKEN
700
701
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October 12, 2006
702
703
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
704
Regalado v Go, GR No. 167988, February 6, 2007
705
706
707
Neypes v Court of Appeals, GR 141524, September 14, 2005
1. By notice of appeal indicating parties, judgment or final order appealed from statement of the
material dates showing timeliness of the appeal.
2. By record on appeal, in special proceedings or cases allowing for multiple appeals, like
probate or partition. The record on appeal shall contain the following:
a. Full name of the parties stated in the caption including the judgment / final order from which
appeal is taken
b. In chronological order, copies of all pleadings, petitions, motions, and all interlocutory orders
as are related to the appealed judgment / final order for proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the documentary evidence by exhibit
taken on the issue – specifying the documentary evidence by exhibit nos. or letters and testimonial
evidence by the names of the witnesses. If the whole of it is included, a statement to such effect is
sufficient.
e. If more than 20 pages include a subject index 708
3. Note that the requirement for a Approval of record on appeal709 – the trial court may approve it,
if no objection is filed by the appellee – or upon its motion / appellee direct its amendment by the
inclusion of omitted matters which are deemed essential to the determination of the issue of law or
facts involved in the appeal.If amendment is ordered, which the appellant must comply with within the
period stated, any extension or if none, within 10 days, submitting the redrafted record for the
approval of the Court. Where both parties are appellants, they may file a joint record on appeal.710
4. Regardless of the mode of appeal, the adverse party is to be furnished with a copy.
WHEN PERFECTED
1. Perfection is determined by Section 9, Rule 41:
1.1 If by notice of appeal, it is perfected upon the filing of the notice in due time. The court loses
jurisdiction upon perfection and expiration of the time of appeal of other parties.
1.2 If by record on appeal, it is perfected upon approval of record on appeal filed in due time. Court
loses jurisdiction upon approval and expiration of time to appeal of other parties.
2. In either case, prior to transmittal of the records, the court may issue orders: (a)protection and
preservation of the rights of the parties not involving any matter litigated by the appeal (b)approve
compromises (c) permit appeals of indigent litigants (d)order execution pending appeal (e) allow
withdrawal of appeal.711
2.1 This is power is known as “residual jurisdiction” . This is also known as retained jurisdiction
which is an extension of the original jurisdiction of the court for certain specific purposes after
perfection of the appeal but before transmittal of the records or record on appeal.
3. In both cases, docket fees and other fees are also to be paid to the clerk of court of the court
that rendered judgment. Proof payment of the same shall be transmitted to the appellant court
together with the records / record on appeal. 712
3.1 Late payment of docket fees may be admitted when a party shows a willingness to abide by
the Rules by immediately paying the docket fee six days after filing a notice of appeal and beyond the
period for perfecting an appeal.713
708
709
710
711
712
3.2 Where delay in the payment of docket fee was not due to a desire to delay or defeat the ends
of justice, late payment thereof which causes no prejudice to anyone should not result in the
dismissal of the appeal.714
4. The record or record on appeal is transmitted by the clerk of court within 15 days from
perfection, together with transcripts / exhibits, which he will certify as complete.
4.1 A copy of the transmittal shall be furnished the parties.715
WHAT HAPPENS UPON TRANSMITTAL TO THE RTC
1. Within 15 days from notice, appellant shall submit a memorandum briefly discussing errors
imputed to the lower court, copy furnished the adverse party. Within 15 days from receipt of
appellants’ memorandum, appellee may file his own memorandum. Failure of appellant shall be
ground for dismissal of the appeal. Upon filing / expiration, the case is submitted for decision on the
basis of the record in Municipal Trial Court and the memoranda submitted by the parties.716
2. When an appeal is taken from an order of the lower Court dismissing the case without trial on
the merits, the Regional Trial Court may affirm or reverse it as the case may be:
2.1 In case it is affirmed and ground of dismissal is lack of jurisdiction over the subject matter of
the case, the Regional Trial Court, if it has jurisdiction, shall try the case on the merits as if the case
was originally filed with it. In case of reversal, it shall be remanded back for further proceedings.
2.2 If it was tried on the merits, without jurisdiction, the Regional Trial Court on appeal shall not
dismiss the case if it has original jurisdiction, but shall decide the case in accordance with Section 7,
without prejudice to the admission of amended pleadings and additional evidence in the interest of
justice.717
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS
1. An appeal may be taken from a judgment /final order that completely disposes of a case, or a
particular matter therein when declared by the Rules to be appealable but no appeal can be taken
from:
(a) Order denying a motion for new trial or reconsideration. An appeal of judgment/final order is
remedy or certiorari under Rule 65. Note that this has been omitted as of December 27, 2007718
(b) Order denying a petition for relief from judgment or similar motion. Certiorari under Rule 65 is
remedy
(c) Interlocutory order. Certiorari under Rule 65 or mandamus is remedy
(d) Order disallowing or dismissing an appeal. Mandamus or petition for relief from judgment is the
remedy
(e) Order denying a motion to set aside judgment by consent confession, compromise on the
ground of fraud, mistake, duress or any ground vitiating consent. A petition for relief or a petition to
annul judgment under Rule 47 or Certiorari under Rule 65 is the remedy
(f) Order of execution. Certiorari under Rule 65 is the remedy
713
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
714
Lopez v Court of Appeals, 75 SCRA 401
715
716
717
718
A.M. No. 07-7-12-SC
(g) Judgment / final order in separate claims, counterclaims, cross claims – 3rd party claims, while
main case is pending, unless the court allows an appeal therefrom. The object is facilitate the trial of
all issues.
(h) Order dismissing an action without prejudice. The remedy is to refile or certiorari under Rule
65. 719
2. That declaration of presumptive death is not appealable by the state or the other party.
2.1 Remedy of the spouse declared presumptively dead is to file affidavit of reappearance.720
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A REGIONAL

TRIAL COURT721
1. Ordinary appeal refers to an appeal by notice of appeal of the decision of the Regional Trial
Court in cases decided in the exercise of its original jurisdiction raising question of fact or mixed
questions of law and fact
1.1 The period of ordinary appeal is 15 days from notice of judgment / final order appealed from. If
requiring a record on appeal, it is 30 days. Said periods are interrupted by a motion for new trial or
reconsideration but no extension of time for their filing is allowed. Note that in habeas corpus cases
the period is 48 hours from notice of judgment or final order722 Note also the application of the “fresh
period rule”.
1.2 Appellate court docket fees / lawful fees shall be paid within the period for taking an appeal to
the clerk of court of the court that rendered judgment but failure to pay is a ground for dismissal of the
complaint723
1.3 If Appeal is by Notice of Appeal, it must indicate parties, judgment or final order appealed from,
and include a statement of the material dates showing timeliness of the appeal.724 or if by Record on
Appeal it must comply with the requirements as previously discussed in an appeal from the Municipal
Trial Court to the Regional Trial Court.725
1.4 Perfection of Appeal is as discussed under Rule 40.726 Subsequently, it is the duty of the clerk
of court of the lower court within 30 days after perfection of all appeals to: (a) verify correctness of the
original record / record on appeal and make a certification as to correctness (b) verify completeness
of records transmitted to appellate court (c) If incomplete, take necessary measures as may be
required to complete the records, availing of the authority that he or the court may exercise for this
purpose. (d) transmit the records to the appellate court. (e) then furnish parties of his transmittal. 727
1.5 If efforts to complete fail, it shall be indicated in the letter of transmittal which exhibits /
transcripts are not included, the reasons why they were not transmitted and the steps taken to make
them available.
1.6 It is likewise required that the transcripts be transcribed728 and that the transmittal to include
proof of payment of docket fees.
1.7 Prior to transmittal of record / record on appeal, the court may motu propio or on motion to
dismiss the appeal for having been take out of time or for non payment of docket and other lawful
fees within the reglementary period.729 If transmitted already, the Court of Appeals may dismiss.
719
720
721
722
723
724
725
Supra, Sections 6,7,8, Rule 41
726
727
728
Supra, Section 11 and 12, Rule 41
729
1.8 Other procedural requirements and disposition of the appeal are governed by Rule 44:
1.9 The title of the case shall remain, party appealing shall be referred to as appellant / adverse
party-appellee.730 Counsel / guardians ad litem of parties shall likewise be considered as such in
Court of Appeals, when others appear or are appointed, notice shall be filed and furnished adverse
parties.731
1.10 If the records are not transmitted to the Court of Appeals within 30 days after perfection of the
appeal, either party may file a motion with the Regional Trial Court, with notice to the other, for
transmittal.732
1.11 Upon receipt by the Court of Appeals, the clerk shall docket the case and notify the parties. If
appeal is by record on appeal, within 10 days from receipt of notice, appellant must file with the clerk
of court 7 clearly legible copies of approved record on appeal and proof of service thereof to adverse
party of 2 copies. Any unauthorized, alteration, omission or addition shall be ground for dismissal of
the appeal.733
1.12 The Clerk of the Court of Appeals should also ascertain the completeness of the records. If
incomplete, he shall inform the court and recommend measures to complete the record within the
shortest possible time but if it cannot be completed due to insuperable or extremely difficult
circumstances. The court, on its own or upon motion, may declare the record sufficient to decide
issues and explain reason for such declaration.734
1.13 Once done, Briefs are to be filed: (a) The Appellant’s Brief must be filed within 45 days from
notice that all evidence, documentary / testimonial are attached to the record, 7 copies of the brief are
to be filed attaching proof of service of 2 copies to adverse party.735 Where there are several parties,
each counsel representing one or more but not all may be served with 1 copy. If several counsel
represent one party, service may be made on any one of them. 736 The contents of the appellant’s
brief are: (a) subject index (b)assignment of errors (c) statement of the case (d)statement of facts
(e)statement of issues (f) arguments (g) relief (f) if not by record on appeal, an appendix, copy of
judgment / final order appealed. 737
1.14 The Appellee’s Brief is to be filed within 45 days from receipt of Appellant’s Brief. It is required
that 7 copies be filed with proof of service of 2 copies on appellant. The contents of the appellee’s
brief are: (a) subject index (b) statement of facts, either a statement of acceptance or counter-
statement of facts (c) Arguments738
1.15 A Reply Brief may be filed by appellant within 20 days from receipt of the Appellee’s Brief.739
No extension of time to file breifs is allowed except for good and sufficient cause, and only if filed
before expiration of the time sought to be extended740 In lieu of briefs, memoranda may be required
is required in certiorari, prohibition, madamus, quo warranto, hebeas corpus within a non-extendible
period of 30 days from notice that all evidence is attached to the record. Failure of appellant to file his
memoranda is ground to dismiss the appeal.741
1.16 Questions of law or fact may be raised in the appeal, whether or not a motion for new trial has
been filed and must within the issues framed by the parties.742 As a rule, a party who deliberately
adopts a certain theory upon which the case is tried and decided by the lower court will not be
permitted to change his theory on appeal. Points of law, theories, issues, and arguments not brought
to the attention of the lower court need not be , and ordinarily not be, considered by a reviewing court,
730
731
732
733
734
735
736
737
738
739
740
741
742
as these cannot be raised for the first time at such late stage. Basic considerations of due process
underlie this rule.743
1.17 In Criminal Cases, note the possibility of the filing of two notices of appeal when the penalty
imposed by the Regional Trial Court is life imprisonment or reclusion perpetua, appeal is by notice to
the Court of Appeals, and by notice again to the Supreme Court. If the penalty is death, it is
automatically reviewed by the Supreme Court, but such shall be made by the Court of Appeals, which
shall render judgment, then certify it to the Supreme Court, who will then enter the same. 744
2. Petition for Review is an appeal to the Court of Appeals of judgment / final order of the
Regional Trial Court in the exercise of its appellate jurisdiction under Rule 42
2.1 It is initiated by the filing of a Verified Petition for Review with the Court of Appeals, paying at
the same time to the Clerk of Court of Appeals the corresponding docket fees and lawful fees,
depositing 500 for costs, furnishing the Regional Trial Court and adverse party with a copy of the
Petition.
2.2 It is to be filed within 15 days from notice of decision sought to be reviewed or denial of motion
for new trial or motion for reconsideration. Upon payment of docket fees and deposit for costs and
before the expiration of the period, the Court of Appeals may grant an extension of 15 days. No
further extension can be given unless for the most compelling reason, but in no case to exceed 15
days. 745
2.3 FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed, indicating the original
copy intended for the Court of Appeals containing (a)full names of parties, without impleading the
lower court / judges (b)specific material dates indicating that it is filed on time (c) statement of
matters, issues, specification of errors of fact / law and reasons / arguments relied upon
(d)accompanied by clearly legible duplicate copies or true copies of judgment of the lower courts,
certified correct by Regional Trial Court clerk of court, pleadings and other material portions
supporting the allegations of the petition (e) certification against forum shopping / verification. NOTE:
Failure to pay fees or comply with the requirements shall be sufficient ground for dismissal. 746
2.4 The appeal is deemed PERFECTED upon timely filing of the petition and payment of docket
fees. The RTC loses jurisdiction upon perfection of the appeal and lapse of time to appeal by the
other parties. The Regional Trial Court continues to have RESIDUAL JURISDICTION until the same
has been given DUE COURSE.747
2.5 Note that except in cases covered by the Rule on Summary Procedure, appeal shall stay the
judgment / final order unless Court of Appeals or the Rules provide otherwise
2.6 ONCE FILED, the Court of Appeals may: (a) Require the respondent to file a comment, not a
motion to dismiss, within 10 days from notice (b)Dismiss the petition if found to be patently without
merit, prosecuted manifestly for delay, or questions raised therein are too unsubstantial to require
consideration.748
2.7 The COMMENT should be filed in 7 copies, accompanied by certified true copies of such
MATERIAL PORTIONS OF THE RECORD AND OTHER SUPPORTING DOCUMENTS, stating:
(a)Statement of whether or not he accepts the statement of matters (b) Point out the
insufficiencies / inaccuracies (c) State reasons why it should not be given due course. Copy of which
must be served on adverse party.749
2.8 A petition is given DUE COURSE when upon the filing of the comment or expiration of the
period to file, the Court of Appeals finds PRIMA FACIE that the lower court has committed an error of
fact / law that will warrant a reversal / dismissal. CONSEQUENTLY, the Court of Appeals, if it deems
743
BPI v Leobrera, 416 SCRA 15
744
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
745
746
747
748
749
necessary, will order the elevation by the clerk of the Regional Trial Court of the entire record within
15 days from notice.750
2.9 IT IS SUBMITTED FOR DECISION after the filing of last pleading or memorandum. Prior to
that though, the Court of Appeals may set it for oral argument / or require memoranda to be submitted
within a period of 15 days from notice.751
3. Appeal by Certiorari or Petition for Review on Certiorari which should involve a pure question
of law direct to the Supreme Court under Rule 45
3.1 A Question of Law is one that requires interpretation or application of a law, while a Question
of Fact is one that pertains to a resolution of a factual dispute.
3.2 There is a question of law in a given case when the doubt or difference arises as to what the
law is pertaining to a state of acts, and there is a question of fact when the doubt arises as to the truth
or falsity of alleged facts.752
3.3 This is initiated by the filing of a Verified Petition for Review on Certiorari raising only questions
of law. This mode of appeal is available to question judgment / resolutions of the Court of Appeals,
the Sandiganbayan, a Regional Trial Court, and other Courts whenever authorized by law.753
3.4 The TIME FOR FILING is 15 days from notice of the judgment, final / order, or resolution or of
denial of petitioner’s motion for new trial / reconsideration. On motion and with full payment of docket
fees and deposit of costs, the Supreme Court on justifiable reason may grant an extension of 30 days
within which to file the petition.
Docket fees and proof of service of the petition on the lower court and adverse party must accompany
the filing of the petition.754
3.5 18 copies of the petition are required to be filed, indicating the original copy for the court. It
should contain: (a) full names of parties (petitioner / respondent) without impleading court / judge (b)
indicate material dates (c)concise statements of the matters involved and the reason / arguments
relied upon for the allowance of the petition (d) clearly legible copies of judgment / final order /
reconsideration or certified true copy and other material portion supporting the record (e) Certificate
against forum shopping and verification755
3.6 UPON FILING, the Supreme Court can:
(a) DISMISS – (1) for failure to comply with the requirements regarding payment, proof of service,
contents and documents (2) on its own initiative because it is without merit, prosecuted for delay, or
issues are too unsubstantial to require consideration, OR
(b) ALLOW REVIEW, which is not a matter of right but is discretionary, when there are special /
important reasons therefor: EXAMPLES- (1) when the court a quo has decided a matter of substance
not therefore determined by the Supreme Court or decided in a way not in accord with the law or
applicable decisions of the Supreme Court (2) when court a quo has so far departed from the
accepted and usual course judicial proceedings, or so far sanctioned such departure by a lower court,
as to call for an exercise of the power of supervision.756
3.7. If given DUE COURSE, the Supreme Court can: (a) Require elevation of the records / or
specified portions thereof within 15 days from notice 757 (b) Require filing of pleadings, briefs,
memoranda or documents as it may deem necessary within periods / conditions it may consider
appropriate and impose sanctions for non-filing / non-compliance or unauthorized filing. This ALSO
applies to a determination as to whether it should be dismissed or denied.758 The RULE APPLIES TO
750
751
752
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
753
754
755
756
757
758
BOTH CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death, reclusion perpetua / life
imprisonment.759
3.8 The exceptions to the general rule that only questions of law may be raised in a petition for
review are:(a) when the conclusion is a finding grounded entirely on speculation, surmises, or
conjectures; (b) when the inference made is manifestly mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts;
(e) when the findings of fact are conflicting; (f) when the Court of Appeals, in making its findings, went
beyond the issue of the case and the same is contrary to the admissions of both appellant and
appellee; (g) when the findings of the Court of Appeals are contrary to those of the trial courts; (h)
when the findings of facts are conclusions without citation of specific evidence on which they are
based; (i) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are
not disputed by the respondents; (j) when the finding of fact of the Court of Appeals is premised on
the supposed absence of evidence but is contradicted by the evidence on record; and (k) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion.760
4. By Petition for Review under Rule 43 in a case decided by the Regional Trial Court sitting as a
commercial court.761
4.1 Applies primarily to appeals from the Court of Tax Appeals and other quasi-judicial agencies to
the Court of Appeals, but is not applicable to judgments / final orders under the Labor Code.762
4.2 The appeal can include questions of fact, law or mixed questions of law and fact.763
4.3 The appeal shall be taken within fifteen (15) days from notice if the award, judgment, and final
order of resolution, or from the date of its last publication, if publication is required by law for its
effectivity, or of the denial of the petitioner’s motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the payment of the full
amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which to file the petition for review. No
further extension shall be granted except for the most compelling reason and in no case to exceed
fifteen (15) days.764
4.4 All other procedural matters and requirements are similar to a Petition for Review under Rule
42 EXCEPT that an appeal under this Rule shall not stay the award, judgment, final order or
resolution unless the Court of Appeals deems otherwise. 765
4.6 In summary judicial proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of Section 247 of the Family Code, are immediately final and executory.766 Appeal by notice of
appeal is erroneous. The Court of Appeals should have dismissed as it had no jurisdiction to review
on appeal. Per Justice Panganiban, Certiorari under Rule 65 is the remedy of the State.
PROCEDURE BEFORE THE COURT OF APPEALS
RULE 46 – ORIGINAL CASES FILED WITH THE COURT OF APPEALS
1. Parties are to be designated as petitioner / respondent767 and is to apply to cases of Certiorari,

Prohibition, Mandamus, Quo Warranto and to petitions for annulment of judgment under Rule 47768
759
760
Martinez v Court of Appeals, 358 SCRA 38
761
A.M. No. 04-9-07-SC, September 14, 2004
762
763
764
765
766
Republic v Bernardez-Lorino, 449 SCRA 57
767
CONTENTS OF PETITION – FILING – EFFECTS OF NON COMPLIANCE
1. Petitions filed before the Court of Appeals must contain the following: (a) identification of the
parties, a concise statement of matters involved, the factual background of the case, and the grounds
relied upon for the relief prayed for (b)statement of material dates, and in a Rule 65 Petition, material
dates are dates of notice of judgment or final order, when a motion for new trial or reconsideration
was filed, if any, and when notice of denial was received (c) clearly legible duplicate originals or
certified true copy of the attachments (d)certification against forum shopping (5)docket fees / deposit
for cost.769
1.1 Failure to comply is sufficient ground for dismissal of the petitions.
2. A certified true copy is one the certification of which is made by the proper clerk of court or his
duly authorized representative.770
HOW DOES THE COURT ACQUIRE JURISIDICTION
1. Jurisdiction over the person or the respondent is acquired by service of order or resolution
indicating initial action on the petition or voluntary submission to jurisdiction.771
ACTION TO BE TAKEN BY THE COURT OF APPEALS
1. The court may dismiss the petition outright with specific reasons OR require the filing of a
comment within 10 days from notice.
1.1 Only pleadings required to be filed may be filed. Other pleadings will require leave of court. 772
2. If factual issues are to be resolved, the Court of Appeals can conduct hearings or delegate
reception of evidence on such issues to any of its members or to an appropriate court / agency /
office. 773
3. If comment is not filed, it may be decided on the basis of the record without prejudice to any
disciplinary action against disobedient party.774
4. The court, if the petition is not dismissed outright:
4.1 Can call the parties / counsel to a preliminary conference, the object of which is to : (a)
consider compromise agreements, except when case is not allowed to be compromised (b) define,
simplify and clarify issues (c)formulate stipulation of facts and admissions of documentary exhibits,
limit the number of witnesses in cases falling within its original jurisdiction or those within its appellate
jurisdiction where a motion for new trial is granted on newly discovered evidence (d) other matters
that may aid in prompt disposition of the case.775
4.2 Record of proceedings is made and a Resolution embodying actions shall be issued776 which
shall be binding upon parties and control subsequent proceedings unless within 5 days from notice, it
can be shown by valid cause why it should not be followed or there is need for modifications to
prevent manifest injustice777
768
769
770
Paras v Baldado, 354 SCRA 141
771
772
773
774
775
776
777
4.3 At its own instance or by motion, to hear the parties in oral argument on the merits of the case
or on any material incident and is limited to such matters as the court may specify in its order or
resolution.778
4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may argue for a party.
Duration, sequence and all related matters shall be as directed by the Court.779
4.5 Motions are not set for hearing, and unless directed by the court, no hearing or oral arguments
shall be allowed in support thereof. The adverse party may file objections within 5 days from notice.
Upon expiration of the period, it is submitted for resolution.780
RULE 47-ANNULMENT OF JUDGMENT
1. Annulment of judgment covers judgments of the Regional Trial Court for which the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner781
1.1 An important condition for the availment is that the petitioner failed to move for new trial, or
appeal from, or file a petition for relief against, or take other appropriate remedies through no fault
attributable to him.
1.2 If he failed to avail of the other remedies through his own fault, he would then benefit from his
inaction or negligence.782
1.3 He must allege non availment of other remedies through no fault of the petitioner, otherwise
the petition will be dismissed.783
1.4 Note that the correctness of the judgment is not in issue in a petition for annulment of
judgment.784
2. It is a remedy that may be availed of by those who are not even parties to the judgment or to
annul even judgments that have been fully executed.785
3. It is available only on grounds of: (a) Extrinsic Fraud but only when it was not availed of or
could have been availed of in a motion for new trial or petition for relief or (b) Lack of Jurisdiction
3.1 There is extrinsic fraud when the unsuccessful party had been prevented from exhibiting fully
his case, by fraud or deception practice upon him by his opponent, as keeping him away from the
court, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of
the plaintiff.786
4. The period for its filing if based on extrinsic fraud is within 4 years from its discovery, or if
based on lack of jurisdiction before it is barred by laches or estoppel.787
FILING / CONTENTS OF THE PETITION
1. Filing is by verified petition alleging therein with particularity, the facts and the law relied upon
for annulment as well as supporting petitioner’s good and substantial cause of action / defense, as
the case may be. Containing (a) certified true copy of judgment / final order / resolution shall be
778
779
780
781
782
Manipor v Ricafort, 407 SCRA 298
783
Ancheta v Ancheta, 424 SCRA 725
784
Republic v Heirs of Sancho Magdato, 340 SCRA 115
785
Malolos v Dy, 325 SCRA 827
786
Leonardo v ST Best, 422 SCRA 347
787
attached to the original copy intended for the court (b) affidavits of witnesses (c) certification against
forum shopping788
WHAT THE COURT OF APPEALS WILL DO UPON FILING
1. If no substantial merit, it will be dismissed outright with specific reasons for such dismissal.
2. If prima facie merit be found, it shall be given due course and summons shall be served on the
respondent. If so, procedure in ordinary civil cases shall be followed but reception may be referred to
a member of the Court or a Regional Trial Court judge.789
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
1. It shall set aside the questioned judgment / final order / resolution and render the same null
and void, without prejudice to the re-filing of the original action in the proper court .
1.1 However, where it is set aside by reason of extrinsic fraud, the court on motion, may order the
trial court to try the case again as if a timely motion for new trial has been granted therein. 790
1.2 The prescriptive period for the re-filing of the original action shall be deemed suspended from
the filing of such original action until finality of the judgment of annulment. However, the prescriptive
period is or shall not be suspended where extrinsic fraud is attributable to the plaintiff is original
action.791
SCOPE OF RELIEF
1. It may include award of damages, attorney’s fees and other relief. If already executed,
restitution or other relief as justice / equity may warrant.792
2. It also applies to a petition for annul the judgment of an MTC but is to be filed with the RTC
and treated as an ordinary civil action.793
2.1 All sections except Section 5 pertaining to dismissal or determination of prima facie merit shall
apply.
RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS
1. In all cases that come before it, and besides on a finding that the case is without merit,
prosecuted for delay or issue is too unsubstantial to merit consideration, on motion of the court or the
appellee, it may dismiss the petition on the basis of:
1.1 Failure of record on appeal to show on its face that appeal was taken within period fixed by the
Rules.
1.2 Failure to file notice of appeal or record on appeal within period within the period prescribed by
the Rules.
1.3 Failure to pay docket fees as provided under Section 5, Rule 40 and Section 4, Rule 41.
1.4 Unauthorized alterations, omissions, additions on record on appeal as provided under Section
4, Rule 44
1.5 Failure of appellant to serve and file required number briefs or memoranda within provided
time by these Rules
788
789
790
791
792
793
1.6 Absence of specific assignment of errors or page references to the record as required by
Section 13, paragraphs(a),(c),(d), and (f) of Rule 44
1.7 Failure of appellant to take necessary steps for the correction or completion of the records
within time limited by the Court
1.8 Failure to appear at preliminary conference under Rule 48, or comply with orders, circulars or
directives of the Court without justifiable cause
1.9 The fact that order / judgment appealed from is not appealable.794
DISMISSAL OF IMPROPER APPEAL
1. An appeal under Rule 41 from the Regional Trial Court to the Court of Appeals raising only
questions of law shall be dismissed as issues purely of law are not reviewable by the Court of
Appeals
2. An appeal by notice of appeal instead of petition for review from a Regional Trial Court
exercising appellate jurisdiction shall be dismissed
3. An appeal erroneously taken to Court of Appeals shall not be transferred but shall be
dismissed outright.795
WITHDRAWAL OF AN APPEAL
1. An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief.
1.1 Thereafter, only upon discretion of the Court.796
RULE 51 - JUDGMENT
WHEN SUBMITTED FOR JUDGMENT
1. In Ordinary Appeals:
1.1 Where no hearing on merits is held, upon filing of the last pleading, brief, memoranda or
expiration of period to file.
1.2 Where a hearing is held, upon termination of hearing or upon filing of the last pleading,
memoranda as may be required or permitted, or expiration of period to file
2. In Original Actions or Petitions for Review
2.1 Where no comment is filed, upon expiration of the period to file comment
2.2 Where no hearing, same as 1.1
2.3 Where hearing is held, same as 1.2797
HOW JUDGMENT IS RENDERED
1. Judgment is rendered by members of the court who participated in the deliberations on the
merits before assignment to a member for writing of the decision.798
794
795
796
797
798
2. Participation of all 3 justices shall be necessary at deliberation and unanimous vote shall be
required for pronouncement. If not, the clerk shall enter the vote of dissenting justices in the record.
Thereafter, Chairman of the division refers it to the Presiding Justice, who will designate 2 justices by
raffle to sit temporarily and to form a special division of five (5) justices. The participation of all is
required for deliberation. Concurrence of majority is required for pronouncement. 799
2.1 Note that in rendering judgment, harmless errors or those which do not affect the substantial
rights of the parties800 or errors that are not assigned will not be considered unless they affect
jurisdiction, validity of judgment, and of proceedings.801
2.2 Harmless Error Doctrine means that any error or defect which does not affect substantial rights
will be disregarded by the reviewing court or tribunal. It is followed to deal with evidence improperly
admitted during trial wherein its damaging quality and impact to the substantial rights of the litigant
are examined. If deemed slight and insignificant, the error is disregarded.802 It is not a ground for
granting of a new trial or for setting aside, modifying, or disturbing a judgment or final order unless the
refusal appears to the Court inconsistent with substantial justice.
3. Judgments of the Court of Appeals in the exercise of appellate jurisdiction may affirm, reverse,
or modify the judgment or final order appealed from. It may also order or direct a new trial to be held
or that further proceedings be taken.803 The decision must state clearly and distinctly the findings of
fact and conclusions of law on which it is based, which may be contained in the resolution itself or
adopted from those set forth in the judgment, final order appealed from.804
PROCEDURE AFTER JUDGMENT
1. After signing by the justices, it shall be delivered to the clerk of court, who shall indicate
thereon the date of promulgation and cause true copies thereof to be served upon the parties or
counsel.805
2. If no appeal, or motion for new trial or reconsideration is filed within the period, the judgment or
final resolution shall be entered in the book of Entries of Judgment. Judgment or final resolution shall
be deemed executory as of the date of entry. The record shall contain the dispositive portion, signed
by the clerk with a statement that it is final and executory.806
3. Execution shall as a rule issue upon a motion in the proper court upon its entry. In appealed
cases, where the motion is filed with the Court of Appeals at the time that it is in possession of the
original records or record on appeal, the resolution granting the motion shall be transmitted to the
lower court from which the case originated, together with certified copy of the judgment to be
executed, with a directive to said court to issue the proper writ for its enforcement. In original actions,
the writ shall be accompanied by a certified true copy of the entry of judgment and addressed to
appropriate officer for enforcement.807
RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA
1. Judgments of the Court of Appeals can be the subject of reconsideration within fifteen (15)
days from notice thereof, with proof of service to the adverse party. 808
2. No second motion for reconsideration will be entertained.809
3. It is to be resolved within sixty (60) days from submission for resolution810 and while pending,
shall stay the execution unless for good reason, court directs otherwise.811
799
800
801
802
People v Teehankee, 269 SCRA 54.
803
804
805
806
807
808
809
RULE 53- MOTION FOR NEW TRIAL
1. It can be filed at any time after appeal from the lower court has been perfected and before the
Court of Appeals loses jurisdiction, on the ground of newly discovered evidence which could not have
been discovered prior to the trial in the court below by the exercise of due diligence and which is of
such a character as would probably change the result. The motion must be accompanied by affidavits
showing the facts constituting the grounds and the newly discovered evidence. 812
2. The Court of Appeals shall then consider the evidence and that adduced at the trial, to
determine if it will grant or refuse a new trial, or make such order, with notice to both parties, as to the
taking of further testimony, either orally in court, by depositions, or render such other judgment as
ought to be rendered upon terms it may deem just.813 If granted, the procedure shall be the same as
that granted by a Regional Trial Court.814
2.1 Motion should be resolved within 90 days from the date it is declared to be submitted.815
OTHER MATTERS
RULE 54 – INTERNAL BUSINESS
1. Allotment of cases shall be among the different divisions for hearing and decision.
2. The Court of Appeals En Banc shall make proper orders or rules to govern allotment, the
constitution of such divisions, the regular rotation of justices, filling of vacancies, and other matters.
Such will continue in force and repealed or altered by it or the Supreme Court.816
3. A majority of the court shall constitute a quorum for sessions en banc and a majority of the
members present shall be necessary to pass a resolution. Three members of a division shall
constitute a quorum for sessions of a division and the affirmative vote of three members shall be
necessary for pronouncement of judgment/resolution, which shall be reached in consultation among
them before the writing of the opinion by any member of the division.817
RULE 55 – PUBLICATION OF JUDGMENT/FINAL ORDER/RESOLUTIONS
1. Judgments and Final Resolutions shall be published in the Official Gazette and in the Reports
officially authorized by the Court, in the language originally written, together with a syllabi. If not so
published, a memoranda shall be made and published in the like manner. 818
1.1 The publication is to be prepared by the Reporter. 819
1.2 Those of the Supreme Court are called Philippine Reports, while those of the Court of Appeals
are called Court of Appeals Reports. 820
RULE 56 – PROCEDURE IN THE SUPREME COURT
ORIGINAL CASES
810
811
812
813
814
815
816
817
818
819
820
1. The cases cognizable by the Supreme Court are Certiorari, Mandamus, Prohibition, Quo
Warranto, Habeas Corpus, Disciplinary Actions against members of the Judiciary and Attorneys,
Cases affecting Ambassadors, Public Ministers or Consuls.821
2. In resolving the cases, applicable rules in the Court of Appeals are also applicable in the
Supreme Court.822
APPEALED CASES
1. The only mode of appeal to the Supreme Court is by Petition for Review on Certiorari, except
in criminal cases where the penalty is death, reclusion perpetua, and life imprisonment823
1.1 Except in appeal of criminal cases where penalty is death, reclusion perpetua, life
imprisonment, appeal by Notice of Appeal, will be dismissed824
2. If by certiorari from the Regional Trial Court to the Supreme Court, raising issues of fact may
be referred to the Court of Appeals for decision or appropriate action. Determination of the Supreme
Court as to whether or not there are issues of fact is final.
3. All appealed cases shall be governed by and disposed of in accordance with the applicable
provisions of the Constitution, Rule 45 (Petition for Review on Certiorari) Rule 48 (Preliminary
Conference), Sections 1 (When submitted) 2 (Who renders judgment) and 5 to 11 ( Form to
Execution) Rule 51, Rule 52 (Motion for Reconsideration) and Rule 56.825
GROUNDS FOR DISMISSAL OF AN APPEAL
1. An appeal may, motu propio or upon motion of respondent, be dismissed on (a) failure to take
appeal within the reglementary period (b) lack of merit (c) failure to pay docket and lawful fees (d)
failure to comply with requirements of proof of service and documents (e) failure to comply with any
circular, directive or order of the Supreme Court without justifiable cause (f) error in the choice or
mode of appeal (g) that it is not appealable to the Supreme Court826
IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY CANNOT BE

OBTAINED
1. It will be deliberated further. If after deliberation, no decision is reached, the original action
commenced in the court shall be dismissed. If appealed, it shall stand affirmed. If on incidental
matters, it shall be denied.827
PROVISIONAL REMEDIES
PRELIMINARIES
1. Provisional Remedies are temporary, auxiliary and ancillary remedies available to a litigant for
the protection and preservation of his rights pending the main action.
1.1 They are issued in the form of writs or processes and they presuppose the existence of a
principal action, although the remedies of Injunction, Receivership and Replevin have been allowed to
exist as principal actions in proper cases.
1.2 These remedies are to be granted by the court where the principal action is pending. Hence,
an MTC has the power to grant a provisional remedy. The exception being support pendente lite in an
821
822
823
824
825
826
827
action for support as this is incapable of pecuniary estimation and is thus only within the jurisdiction of
an RTC.
2. The purpose for resort to provisional remedies are: (a) preserve and protect rights or interests
while the main action is pending (b) secure the judgment (c) preserve the status quo (d) preserve the
subject matter of the action.
3. The enumeration of provisional remedies is not exclusive as there is jurisprudence to allow the
court to exercise its equity jurisdiction when the law is silent, obscure or insufficient. Examples are the
grant of visitation rights or temporary custody of a child828or deposit of amount paid in an action for
rescission to prevent its dissipation.829
RULE 57 – PRELIMINARY ATTACHMENT
Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution (See:
Roque vs. CA, 93 SCRA 540). What the law provides are enforcing the writ without delay and making sheriff’s
return thereon without delay.
Preliminary attachment shall be discharged in any of the following instances:
1. property attached is exempt from execution, hence, it is also exempt from preliminary attachment (Sections 2
and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or enforced (Section 13, Rule 57);
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a ground which is at the same time the applicant’s cause of action: ie.,
an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the
action is brought, the only way it can be dissolved is by a counter-bond. (FCY Const., Group Inc. vs. CA, 324 SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment. (CBTC vs. CA, 197 SCRA 663)
WHAT IS PRELIMINARY ATTACHMENT
1. It is a provisional remedy issued upon order of the court where the action is pending to levy
upon the properties of the defendant therein, the same to be held thereafter by the sheriff as security
for the satisfaction of whatever judgment might be rendered in favor of the attaching creditor.
2. It can also extend to property of the defendant in the hands of 3 rd persons or money owed by
rd
3 persons to the defendant. This is also known as garnishment.
3. If judgment has become final and executory, there is a final attachment which is also known as
Levy on Execution
4. It can be availed of at any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND GARNISHMENT
1. In Preliminary Attachment there are two parties, the plaintiff or proper party and the defendant,
while in Garnishment, there is an additional party in the person of the garnishee. In the former,
property is actually seized and a lien is created thereon, while in the latter, there is no actual seizure.
GROUNDS FOR ATTACHMENT
828
Tan v Adre, 450 SCRA 145
829
Reyes v Lim, 408 SCRA 560
1. Action for recovery of money or damages other than moral / exemplary, on a cause of action
that arise from law, contract, quasi – contract, delict, or quasi-delict against a party who is about to
depart from the Philippines with intent to defraud creditors.
1.1 It is required that the movant be able to show that the defendant is about to depart from the
Philippines with intent to defraud creditors.830
1.2 It cannot issued when the amount of money or damages is not specified.831
2. Action for money or property embezzled or fraudulently misapplied or converted to his own use
by a public officer, an officer of a corporation, or an attorney, factor, broker, agent or clerk in the
course of his employment as such, or by any person in a fiduciary capacity, or for willful violation of
such duty.
2.1 Examples are when an officer of a corporation who has control of its funds will utilize the same
for his personal use or when a person appropriates the entire property knowing that a portion thereof
does not belong to him.
3. Action to recover possession of property unjustly or fraudulently taken, detained or converted

when the property, or any part thereof, has been concealed, removed or disposed of to prevent its
being found or taken by the applicant or authorized person.
3.1 The property referred to may be either real or personal property.
3.2 Distinguishing it from replevin: the object is to attach real or personal property belonging to the
defendant to secure satisfaction of his judgment for recovery, while in replevin, the object of the
movant is the recovery of his own property.
4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon
which the action is brought or in the performance thereof.
4.1 The fraud should be committed either upon contracting the debt or incurring the obligation
sued upon or in the performance thereof. A debt is fraudulently contracted if at the time of contracting
it, the debtor has a preconceived plan or intention not to pay. 832
5. Action against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud creditors.
5.1 Mere removal or disposition, by itself, is not ground for the issuance of a writ of preliminary
attachment, notwithstanding the insolvency of the defendant or the absence of security for the
satisfaction of any judgment is alleged against the defendant.833
5.2 Where fraudulent disposal is put in issue, the parties should be given the opportunity to prove
their claims, or at the very least, the defendant should be given the chance to show that he has not
been disposing of his property in fraud of creditors.834
6. Action against a party who does not reside and is not found in the Philippines or on whom
summons may be served by publication.835
HOW APPLIED FOR
1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit,

containing the following: (a) It is executed by the applicant / or some person who is aware or
personally knows the facts (b) A sufficient cause of action exists (c) That a ground/s as stated in
Section 1 exists (d) There is no other sufficient security for the claim sought to be enforced by the
830
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
831
Peregrina v Panis, 133 SCRA 71
832
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
833
Peoples Bank and Trust Company v Syvel’s Incorporated, 164 SCRA 247
834
Adlawan v. Torres, 233 SCRA 645
835
action (e) The amount due the applicant or value of the property that he is entitled to recover, is as
much as the sum for which the Order is granted, above all legal counterclaims836
1.1 An ordinary creditor appointed as administratrix of the estate of the deceased cannot file a
petition for preliminary attachment as that would constitute him as a preferred creditor. 837
2. A bond must then be executed to the adverse party in the amount fixed by the court,
conditioned that the latter will pay all costs which may be adjudged and all damages sustained by
reason of the attachment, if the court shall finally adjudge that the applicant was not entitled
thereto.838
WHEN ISSUED / BY WHOM
1. Either ex parte or on motion with notice and hearing, by the court in which
action is pending, by the Court of Appeals or the Supreme Court and must require the Sheriff to
attach so much of the property in the Philippines of the party against whom it is issued not exempt
from execution as may be sufficient to satisfy the claim unless the other party makes a deposit or
gives a bond in an amount equal to that fixed in the order, exclusive of costs.
1.1 Several writs may be issued at the same time to the sheriffs of the courts of different judicial
regions.839
2. It is issued ex-parte when the ground is justified further by the fact that the defendant might
abscond or dispose of his property before the writ is issued. It can take place even before he is
summoned but note that it cannot be enforced unless it is preceded or contemporaneously
accompanied by service of summons, together with complaint, application for attachment, affidavit,
bond, order and the writ itself.
2.1 This is the Prior or Contemporaneous Rule.
2.2 Note that an Alias Summons belatedly filed cannot be deemed to have cured the fatal defect in
the enforcement of the writ of preliminary attachment.840
2.3 The prior or contemporaneous rule does not apply when: (a) Summons could not be served
personally or by substituted service despite diligent efforts (b) Defendant is a resident but temporarily
out of the PhiIippines (c) Defendant is a non-resident of the Philippines (d) It is an action in rem or
quasi in rem
BY WHOM / HOW ENFORCED
1. By the sheriff, without delay and with all reasonable diligence
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ
of execution. 841 What the law provides for are the enforcement of the writ without delay and making
sheriff’s return thereon without delay.
2. He may attach only such property not exempt from execution, as may be sufficient to satisfy
the demand unless the defendant makes a deposit or gives a counter bond in an amount equal to the
bond fixed by the court or to the value of the property attached. 842
2.1 Note that the attachment shall proceed nevertheless until there have been proceedings
undertaken to discharge the attachment. If found to be insufficient / or is not filed, a new order of
attachment may be applied for.843
836
837
Gruenberg v Court of Appeals, 138 SCRA 471
838
839
840
Mangila v Court of Appeals, 387 SCRA 162
841
Roque v Court of Appeals, 93 SCRA 540
842
843
3. Attachment should be in accordance with the following:
(a) If real property, it requires the filing with the Office of the Register of Deeds of a copy of the
order together with notice that property or interest therein is attached.
(b) If personal property capable of manual delivery taking it and safely keeping it in custody after
issuance of proper receipt.
(c) If stocks / shares / interest in companies, by leaving with the president or managing agent a
copy of the writ and notice.
(d) If debts, credits, bank deposits and other like personal properties not capable of manual
delivery – leaving with such persons owing debt, holding credits or in possession a copy of the writ
and notice.
(e) If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by
serving the writ / notice on executor or administrator.
(f) If in custodia legis – copy of writ is filed if the proper court or quasi-judicial agency and notice
served on the custodian of the property. 844
3.1 Effect of attachment of debts, credits and similar personal property – persons who have them
are liable to the applicant for the amount of such credits until the attachment is discharged, judgment
is satisfied or debts are paid845
3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the
executor / administrator or representative – BUT they shall report the attachment to the court when
any petition for distribution is filed – and in the order made upon such petition – the property may be
awarded to the heir / legatee / devisee , but the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person claiming under him.846
3.3 There can also be an examination of the listed persons to determine if there are properties in
their possession that may be attached.847
4. Sheriff shall also make a return without delay, containing a full statement of his proceedings
under the writ and a complete inventory of property attached, together with a copy of a counter-bond
if one has been filed, furnishing copies thereof on the applicant.848
5. Property is to be held and disposed of in the following manner:
5.1 If judgment is recovered by the attaching party
(a) Paying to obligee proceeds of all sales of perishable property or others sold pursuant to order
of the court as shall be necessary to satisfy the judgment.
(b) If there is a balance, selling so much of the real or personal property as may be necessary to
satisfy the balance, if enough for that purpose, remains in the hands of the sheriff or clerk of court.
Note that there can be an EARLY SALE if it is made to appear to the court in which the action is
pending that the property attached is perishable, or that the interest of all the parties to the action will
be subserved by the sale of the properties at public auction, the proceeds to be deposited with the
court to abide the judgment.849
(c) Collecting from all persons having in their possession credits belonging to the obligor or debts
due him
844
845
846
847
848
849
(d) If there be a balance, he proceeds to collect as upon ordinary execution. If there be a surplus,
it must be returned.
(e) If judgment becomes executory, the surety/ies shall become charged on the counter-bond and
bound to pay the judgment obligee upon demand, the amount due on the judgment, which amount
can be recovered after notice and summary hearing in the same action.850
(f) If money was deposited in lieu of a bond, it is applied under direction of the Court and if
judgment is against attaching party, the whole sum deposited is refunded. 851
A Report or Return of all proceedings must be filed with the court and copies furnished all parties.852
5.2 If judgment is for adverse party –
(a) All proceeds of sales or money collected by the sheriff and property attached shall be delivered
to the party whose properties were attached and the order of attachment discharged.
(b) Claim for damages before trial, perfection of appeal, or judgment becomes executory, with due
notice to the attaching party and surety setting forth the facts showing his right to damages in
instances where there is improper, irregular or excessive attachment, are to be awarded after hearing
and is to be included in the judgment in the main case.
(c) If the judgment favorable to him is rendered by the appellate court, he must claim the damages
during the pendency of the appeal by filing the application in the appellate court, before the judgment
becomes executory. The appellate court may allow the application to be heard and decided by the
trial court.
(d) Nothing, likewise, prevents the party against whom attachment is 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 be insufficient.853
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED
1. Discharge the attachment by making a cash deposit or counter bond.854 Note that bond may
be subject to recovery by attaching party;
1.1 A motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a
ground which is at the same time the applicant’s cause of action as that is tantamount to a trial on the
merits. Example: action for money, property embezzled, party guilty of fraud in incurring the obligation
2. Discharge or set aside the attachment on the ground that it was improperly issued or
irregularly enforced, or bond is insufficient or what has been attached is excessive, the discharge is
only for the excess.855
3. Claim for damages on account of improper, irregular, or excessive attachment. 856
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON
1. Claim is to be initiated by affidavit.
1.1 Upon filing, the sheriff not under obligation to keep the property, unless attaching party files a
bond.
850
851
852
853
854
855
856
1.2 No claim for damages for the taking or keeping of the property may be filed / enforced against
the bond unless the action is filed within 120 days from date of the filing of the bond. 857
RULE 58 – PRELIMINARY INJUNCTION
1. A Preliminary Injunction is an order granted at any stage of an action or proceeding prior to

judgment or final order, requiring a party or a court, agency, person to refrain from a particular act or
acts. It may also require the performance of an act, if such it is called a preliminary mandatory
injunction.858
2. Note that Injunction may also exist as a cause of action. This is best illustrated by the
appropriate remedies for obligations to do or not to do. Obligations to do, the remedy is specific
performance. Obligation not to do, remedy is injunction.
2.1 An example is that provided for by Article 26 of the Civil Code that allows an injunction against
one prying into the privacy of another residence, meddling with or disturbing the private life or family
relations of another or the enforcement of an easement of light and view.
PRIMARY PURPOSE OF INJUNCTION
1. Is to preserve the status quo or the last actual, peaceable, uncontested status which precedes
the pending controversy.
WHO MAY GRANT
1. Court where the action is pending. If pending in the Court of Appeals or the Supreme Court, it
may be issued by the Court or any member thereof.859
GROUNDS FOR ISSUANCE
1. The applicant is entitled to the relief demanded, and the whole or part of the relief consists in
restraining the commission / continuance of the act/s complained of, or in requiring the performance
of an act/s, for a limited period or perpetually.
2. The commission / continuance / non performance of the act/s during litigation will probably
work injustice to the applicant, or
3. That a party, court, agency or a person is doing, threatening, or is attempting to do or is

procuring or suffering to be done, some act/s in violation of the rights of the applicant respecting the
subject of the action and tending to render judgment ineffectual.860
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1. The requisites are: (a) Existence of a right to be protected, and (b) Acts against which the
injunction is to be directed are violative of the right
2. These must clearly appear in the allegations in the complaint, otherwise, it may be ground for
its outright denial for insufficiency, which is apparent in the application itself or if already granted, may
be dissolved.861
MAY IT BE ISSUED EX-PARTE
1. As a general rule, the issuance requires (a) a hearing (b) reception of evidence with
opportunity to cross (c) finding that prohibited acts are threatened to be committed or that irreparable
injury would be inflicted upon the applicant.
857
858
859
860
861
2. If great/irreparable injury would result before then the Court by way of an exception on non ex-
parte issuance (a) can issue a Temporary Restraining Order for 20 days after a summary hearing or If
it is of extreme urgency, it may issue ex-parte a 72 hour Temporary Restraining Order, within which
period a summary hearing to determine whether or not the same is to be extended for the full 20 day
period must be held.
2.1 Note that within the 20 day effectivity period of the Temporary Restraining Order, the court
must order the party or person to show cause why the injunction should not be granted, determine
also whether or not the preliminary injunction should be granted, and accordingly issue the order. 862
2.2 The lifetime of a Temporary Restraining Order is 20 days if issued by a trial court, 60 days if
issued by the Court of Appeals, and until further orders if issued by the Supreme Court. Note that
when the trial court omits to state a period, the 20 day period is deemed incorporated in the order.863
2.3 A second Temporary Restraining Order issued by the Court of Appeals after the expiration of
the first period is a patent nullity.864
862
863
Bacolod City Water District v Labayen, 446 SCRA 110
864
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007
3. A status quo order is not a temporary restraining order. It is more in the nature of a cease and
desist order, has no specified duration and does not specifically direct the performance of an act. It
lasts until revoked, may be the subject of an agreement, and does not require the posting of a bond.
HOW OBTAINED
1. A preliminary injunction or temporary restraining order is obtained upon (a) filing of a verified
application showing facts entitling the applicant to the relief demanded, (b) unless exempted, filing of
a bond in an amount fixed by the court, to the effect that applicant will pay all damages that may be
sustained if the court should finally decide that applicant was not entitled thereto (c) if included in a
complaint / initiatory pleading it shall be raffled only after notice to and in the presence of the adverse
party.
2. In any event, notice shall be preceeded by or contemporaneously accompanied by service of

summons, together with affidavit and bond but such will not be applicable if defendant / adverse
party cannot be served personally / substituted service, is temporarily absent or is a non-resident.
3. The matter shall thereafter be acted upon only after all parties are heard in a summary
hearing, conducted within 24 hours after sheriff’s return of service.865
WHEN INJUNCTION WILL NOT ISSUE
1. Under BP Blg. 227 amending the Labor Code, a court cannot grant injunctive relief in cases
growing out of a labor dispute as the said power is vested in the NLRC. An exception is when the
injunction is sought by a third person whose property is levied upon to satisfy the liability of
another.866
2. Under RA 8735 and PD 1818, injunction does not lie against the execution or implementation
of government infrastructure programs, essential government projects, including arrastre 867
3. Under Section 55, RA 6657 of the Comprehensive Agrarian Reform Law, injunction cannot
issue against the Presidential Agrarian Reform Council or any of the implementing agencies.
4. As against the Asset Privatization Trust as taken over by the Privatization and Management
Office of the Department of Finance.868
5. As against a court of co-equal rank or decrees of a court with concurrent or coordinate

jurisdiction.869
6. As against quasi-judicial bodies of co-equal rank as an RTC such as the Social Security
System or the SEC
7. By the RTC as against the Intellectual Property Office, Commission on Elections or Workmen’s
Compensation Commission
8. As against the collection of a national internal revenue tax, fee or charge imposed by the
NIRC870 or the Commissioner of Customs over seizure or forfeiture proceedings871
9. As against consummated acts or a judgment already executed872
10. To transfer possession or control over property when legal title is still in dispute or when it has
not yet been clearly established or there is a lack of clear and unmistakable right on the part of the
applicant.873
865
866
Penalosa v Villanueva, 177 SCRA 78
867
Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
868
Section 31-A, Proclamation 50-A, EO No. 323, 2000
869
Ching v Court of Appeals, 398 SCRA 88
870
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
871
Zuno v Cabredo, 402 SCRA 75
872
PNB v Adi, 173 SCRA 550
873
Cortez Estrada v Samut, 451 SCRA 275
11. To establish new relations between the parties874
12. When it disposes of the main case without trial as the grant of injunctive relief assumes the
proposition that petitioner must prove.875
13. To restrain a criminal prosecution876 except: (a) to afford adequate protection to the
constitutional rights of the accused; (b) when necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions; (c) when double jeopardy is clearly apparent; (d) where the
charges are manifestly false and motivated by the lust for vengeance; or (e) where there is clearly no
prima facie case against the accused and a motion to quash on that ground has been denied.877
14. In applications for restraining order and injunction against the foreclosure of a real estate
mortgage on the ground that it has been paid or not delinquent, unless it be verified and supported
by evidence of payment.
14.1 If on the allegation that interest is unconscionable, the debtor must pay the mortgagee at least
12% per annum on the principal obligation as stated in the application for foreclosure, which shall be
updated monthly while the case is pending.
14.2 The bond shall be equal to the amount of the outstanding debt, and the time for its effectivity
shall apply as well to a status quo order.
GROUNDS FOR OBJECTION / DISSOLUTION
1. The application may be denied or if granted, dissolved, upon showing of insufficiency, or while
entitled to an injunction, the issuance or continuance thereof will cause irreparable damage to the
person enjoined while the applicant can be compensated for the damages and a bond is filed or if it
appears that extent is too great, it may be modified. 878
2. It may also be dissolved on objection to the sufficiency of the bond, or upon finding of
insufficiency, the failure of surety to justify or filing of a sufficient bond. If it the objection is to the bond
of the party enjoined, the injunction shall be granted or restored. 879
JUDGMENTS OR ORDERS IN INJUNCTION
1. An order discharging an injunction is immediately effective.
2. A Final Injunction is granted if it appears that the applicant is entitled to have the act/s
permanently enjoined or confirming the preliminary mandatory injunction.880
3. Judgments eventually rendered may include damages against a party and sureties. 881
4. No injunction can issue against the acts of a co-equal court, except in a 3rd party claim where
claimant vindicates his right by a separate action.
RESOLUTION OF THE MAIN CASE OR PETITION
1. The trial court, the Court of Appeals, the Sandiganbayan, or the Court of Tax Appeals that
issued the writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency
shall decide the main case or petition within a period of six (6) months from the issuance of the
writ.882
874
Almeida v Court of Appeals, 448 SCRA 68
875
Levi Strauss v Clinton Apparelle, 470 SCRA 236
876
Andres v Cuevas, 460 SCRA 38
877
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
878
879
880
881
882
A.M. 07-7-12-SC
RULE 59 – RECEIVERSHIP
WHEN IS A RECEIVER APPOINTED
1. When it appears from a verified application, and as such other proof as the court may require,
that the party applying for the appointment of a receiver has an interest in the property or fund which
is the subject of the action or proceeding as such property / fund is in danger of being lost, removed
or materially injured unless a receiver be appointed to administer and preserve it.
2. When it appears in an action by the mortgagee for the foreclosure of mortgagee that the
property is in danger of being wasted, dissipated or materially injured – and that its value is probably
insufficient to discharge the mortgage debt or that the parties have so stipulated in the mortgage
contract.
3. When after judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid in execution when the execution is returned unsatisfied or
the judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise carry
the judgment into effect.
4. Whenever in other cases, it appears that the appointment of a receiver is the most convenient
and feasible means of preserving, administering or disposing of property in litigation.
WHO APPOINTS A RECEIVER
1. The court where action is pending or the Court of Appeals, the Supreme Court or a member
thereof.
1.1 During appeal, the appellate court may allow the application for the appointment to be filed in
the court of origin, which can also decide on the same to be subject to the control of said court.883
2. 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:
(a) an actual interest in it, and (b) that such property is in danger of being lost, removed, or
materially injured; or whenever it appears to be the most convenient and feasible means of
preserving or administering the property in litigation.884
3. A receiver is a person appointed by the court or by a quasi-judicial administrative agency, in

behalf of all the parties for the purpose of preserving and conserving the property and preventing its
possible destruction or dissipation, if it were left in the possession of any of the parties. It is the duty
of the receiver to administer the assets of the receivership estate; and in the management and
disposition of the property committed to his possession, he acts in a fiduciary capacity and with
impartiality toward all interested persons.885
4. A receiver is not an agent or representative of any party to the action.
4.1 He is an officer of the court exercising his functions in the interest of neither plaintiff nor
defendant, but for the common benefit of al the parties in interest.
4.2 He performs his duties “subject to the control of the Court,” and every question involved in the
receivership may be determined by the court taking cognizance of the receivership proceedings.
4.3 Thus, unauthorized contracts of a receiver do not bind the court in charge of receivership.
They are the receiver’s own contracts and not recognized by the court as contracts of the
receivership.886
WHAT ARE THE POWERS OF THE RECIEVER
883
884
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
885
Arranza versus B.F. Homes, Inc., 333 SCRA 799
886
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
1. Subject to the control of the court, a receiver can: (a) Bring and defend actions in his own
name (b)Take and keep possession of the properties in controversy (c)To receive rent (d)Collect
debts, including power to compound and compromise them, to pay debts (e)Make transfers (f) To
divide money or other property (g) Other acts as may be authorized by the court
2. Funds though may only be invested by order of the court upon written consent of all parties.
No action may be filed by or against the receiver without leave of court to prevent harassment.887
3. Should there be refusal / neglect to deliver property to a receiver – it is punishable by contempt

and shall be liable for the money or value of the property, plus damages sustained as a consequence
of the refusal / neglect.888
HOW APPLIED FOR
1. By verified application.
1.1 More than 1 receiver may be applied for and appointed by the court.
1.2 Note that receivership may be a principal action or an ancillary remedy.
2. If application is granted – the receiver shall await the filing by the applicant of a bond executed
to the party against whom the application is presented in an amount fixed by the Court to the effect
that the applicant will pay such party all damages that he may sustain by reason of the appointment in
case the same has been procured without sufficient cause – and the court in its discretion may
require an additional bond to be filed as further security for damages. 889
3. The application may be denied or receiver discharged when the adverse party files a bond
executed to the applicant to the effect that such party will pay to the applicant all damages he may
suffer by reason of acts, omissions or other matters specified as grounds in the application.
3.1 It may also be discharged if it is shown that appointment was obtained without sufficient
cause.890
4. Before entering upon his duties, the receiver shall be sworn to perform them faithfully and shall
file a bond executed to such person and in amount fixed by the court, to the effect that he will
faithfully discharge his duties and obey orders from the Court.891
5. Copies of bonds of the applicant and receiver or the adverse party shall be served on each
interested party – who may except to its sufficiency or the surety. If found to be insufficient or is not
justified and a bond sufficient in amount and surety is not filed, the application shall be denied and the
receiver discharged. If adverse party’s bond is the one excepted to or found insufficient, the receiver
shall be appointed or reappointed as the case may be.892
WHEN TERMINATED
1. When the court, motu propio or upon motion, shall determine that the necessity for a receiver
no longer exists, it shall alter due notice, settle all accounts, direct delivery of the funds / property in
his possession to the person adjudged to be entitled to receive them and order the discharge of the
receiver from further duty.
2. He is to be allowed compensation as circumstances will warrant to be taxed against defeated

party or apportioned as justice may require.893
3. Any judgment may include the amount, if any, to be awarded any party upon any bond.894
887
888
889
890
891
892
893
RULE 60 – REPLEVIN
The lessor in a lease with option to purchase, in choosing through replevin, to deprive the lessee of possession
of the leased equipment, waived its right to recover unpaid rentals on the said leased items. The remedy
provided by Article 1484 are alternative, not cumulative.895
WHAT IS REPLEVIN
1. It is a form of a principal remedy and provisional remedy / relief.
1.1 It is also a mixed action partly in rem as far as the claim for recovery of personal property and
in persona as far as the claim of damages, the object of which is recovery of possession of personal
property applied for at the commencement of the action or at any time before answer by the party
praying for recovery of personal property.896
HOW APPLIED FOR
1. Filing of Affidavit containing the following: (a) that applicant is the owner of the property
claimed, particularly describing it, or is entitled to possession of the same (b)that property is a
wrongfully detained by the adverse party, alleging the cause of detention according to the best of his
knowledge, information or belief (c) that property has not been distrained or taken for a tax
assessment or payment of fine or seized under execution, preliminary attachment or in custodia legis,
or if so seized, it is exempt from seizure / custody (d) actual market value not the probable value as
declared by the applicant. Should there be a dispute, it is to be resolved by the Court.
2. Filing of bond in double the value of the property – for return of the property to the adverse
party and payment of such sum as he may recover from the applicant
3. Upon filing of the affidavit and bond, the writ of replevin shall issue requiring the sheriff to
forthwith take the property in custody.897
3.1 In taking custody – if concealed, he may demand delivery, if not delivered, he may cause the
building / enclosure to be broken.
3.2 Once in possession, it must be kept in a secure place and shall be responsible for its delivery
to the party entitled thereto upon receipt of his fees and expenses.898
REMEDIES FOR RETURN OF PROPERTY
1. Objection to the sufficiency of the bond / surety but he cannot immediately require delivery or
at any time before delivery to the applicant, by filing a bond known as a redelivery bond executed to
the applicant in double the value of the property as stated in the applicant’s affidavit.
MANNER OF DISPOSITION BY SHERIFF
1. If within 5 days after taking of the property, the adverse party does not object to sufficiency of
the bond / sureties or he objects and the court affirms its approval of the bond or approves a new
bond or if he requires return but his bond is objected to (adverse party) and he does not forthwith file
an approved bond – the sheriff shall deliver the property to the applicant, if for any reason it is not
delivered, it must be returned to the adverse party.899
894
895
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
896
897
898
899
2. If claimed by a 3rd Party by affidavit, the sheriff is not bound to keep and deliver the property
unless applicant / agent on demand of the sheriff files a bond approved by the Court to indemnify the
3rd party claimant in a sum not less than the value of the property under replevin.
2.1 In case of disagreement as to value, the court shall determine the same.
2.2 Note that no action on the bond may be enforced unless filed within 120 days from filing.
2.3 The sheriff shall not be liable for damages for the taking and keeping of the property to any
such 3rd party if the bond is filed. Nothing also prevents the 3 rd party claimant or the applicant from
vindicating their rights or claims in the same action or in a separate action.
2.4 If writ is issued in the name of RP, no bond is required and the sheriff is to be represented by
the Solicitor General and damages so adjudged are paid out of the National Treasury. 900
3. The sheriff must make return within 10 days after taking of the property. 901
4. The judgment shall include a determination who has a better right of possession to and value
of the property and render judgment in the alternative for delivery thereof to the party entitled or its
value in case delivery cannot be made, and also for damages as either party may prove, with costs.
4.1 Any amount awarded a party upon any bond shall be claimed, ascertained and granted as
provided by Section 20 of Rule 57.902
5. A writ of replevin may be served anywhere in the Philippines.
RULE 61 – SUPPORT PENDENTE LITE
WHEN FILED AND HOW
1. At the commencement of the proper action or proceeding or at any time prior to a judgment or
final order – a verified application may be filed by a party stating the grounds for the claim and the
financial conditions of both parties, accompanied by affidavits, depositions, or other authentic
documents in support thereof.903
2. It is also available in criminal cases when: (a) child is born to offended party allegedly because
of the crime (b) civil liability arising from the criminal action includes support for the offspring (c) civil
aspect has not been waived, reserved or instituted prior to filing of criminal action.
2.1 This application may be filed successively by the offended party, her parents, grandparents,
guardian or the State in the corresponding criminal case during its pendency. 904
PROCEDURE
1. Upon filing of verified application – it shall be served on the adverse party, who shall have 5
days to comment unless a different period is fixed by the court.
1.1 The comment shall also be verified and accompanied by affidavits, depositions, authentic
documents.905
2. Hearing shall then be conducted no more than 3 days after comment is filed or the period
expires.906
900
901
902
903
904
905
906
3. Court shall determine provisionally the pertinent facts and render such orders as justice and
equity may require, having due regard to the probable outcome of the case and such other
circumstances.
3.1 If granted, it shall fix the amount of money to be provisionally paid or such other forms or
support as should be provided – taking into account the necessities of the applicant and resources or
means of the adverse party and the terms or mode for providing support.
3.2 If denied, the principal case shall be tried and decided as early as possible.907
HOW ENFORCED
1. If adverse party fails to comply, the court shall, motu propio or on motion, issue an order of
execution without prejudice to his liability for contempt.
2. If support be paid by a 3rd person, after due notice and hearing in the same case, he may
obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide
support.908
RESTITUTION
1. If upon judgment / final order – The court finds that the person who has been providing support
is not liable therefor – it shall order the recipient to return the amounts paid plus interest from dates of
actual payment without prejudice to the right of the recipient to obtain reimbursement in a separate
action from the person legally obliged to give support.
1.1 Should the recipient fail to reimburse, the person who provided the same, may, in a separate
action, seek reimbursement thereof from the person obliged to give support.909
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
1. Whenever conflicting claims upon the same subject matter are or may be made against a
person who claims no interest whatever in the subject matter, or an interest which in whole or in part
is not disputed by the claimants, he may bring an action against the conflicting claimants to interplead
and litigate their several claims among themselves.910
2. Examples of when interpleader is proper: (a) where a warehouseman is in custody of goods

being claimed by two or more persons who do not have the same interest, or (b) two or more lessors
are trying to collect from a lessee.
PROCEDURE:
1. Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to
interplead with one another.
1.1 If the interest of justice requires, it may order the subject matter be paid or delivered to the
court.911
2. Summons shall then issued to claimants, together with a copy of the complaint and order.912
907
908
909
910
911
912
3. Within the time for the filing of an answer, motions to dismiss may be filed, if denied the
claimant must file an answer within the period remaining but in no case less than 5 days.
3.1 If not, he may be declared in default and thereafter the court may render judgment barring him
from any claim in respect of the subject matter.
3.2 They may also file counter-claims, cross-claims, 3rd party claims, and other responsive
pleadings.913
4. After the pleadings of the conflicting claimants have been filed, pre-trial conducted, the court
shall proceed to determination and adjudication of their respective claims. The docket and other
lawful fees paid by a party who filed the complaint, as well as costs / expenses of litigation shall
constitute a lien or charge upon the subject matter, unless the court orders otherwise. 914
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
1. It is a special civil action brought before the Regional Trial Court only by a person interested in
a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive
order, regulation or ordinance or any other government regulation, before breach thereof, asking the
court to determine any question of construction or validity arising therefrom, and for a declaration of
his rights or duties thereunder.915
1.1 The list of what may properly be addressed by a petition for declaratory relief is exclusive.
Hence, an action for declaratory relief to determine the import of a judgment or to resolve doubts as
to citizenship is not proper.
1.2 Note that even if the subject is enumerated, the court will refuse to act if the contract is clear
and there is no doubt as to its meaning as there is no need for construction or a declaration of rights.
2. The similar remedies are the actions for reformation of instruments, to quiet title or remove
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code . They may be
brought as civil actions for declaratory relief.
3. Note that it can be brought only before a breach / violation of the statute or instrument.
3.1 If already brought and a breach / violation is committed before final termination, it is converted
into an ordinary civil action.
3.2 The parties may then file such pleading as may be necessary or proper.916
WHO ARE THE ALLOWED PARTIES
1. All persons who have or claim an interest which would be affected by the declaration shall be
made parties and no declaration shall as except as otherwise provided in these Rules prejudice the
rights of persons not parties to the action.
2. If involving validity of a statute, executive order, regulation, or any other government

regulation. The solicitor general shall be notified and is entitled to be heard upon such question.917
3. If local government ordinance, the corresponding attorney / prosecutor of the Local

Government Unit shall be similarly notified and heard. If alleged to be unconstitutional, the Solicitor
General shall be notified and heard.918
913
914
915
916
917
ACTION BY THE COURT
1. Except in actions falling under the 2nd paragraph of Section 1, the court,
motu propio, or on motion, may refuse to exercise the power to declare rights and to construe
instruments in any case where a decision would not terminate the controversy or uncertainty that
gave rise to the action, or in any case, where the declaration or construction is not necessary or
proper under the circumstances.919
RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND COA
1. A judgment / final order of COMELEC / COA is to be brought by the aggrieved party to the
Supreme Court under Rule 65 but the period for filing is 30 days from notice of the judgment or final
order sought to be reviewed.
1.1 This rule was promulgated by the Supreme Court to implement Section 7 of Article IX-A of the
1987 Constitution which provides that any decision, order or ruling of a constitutional commission
may be brought to it on certiorari within 30 days from receipt of a copy thereof, having interpreted the
same to refer to a certiorari petition under Rule 65. However, if it has for its subject an interlocutory
order, it has been submitted that the periods provided for under Rule 65 will prevail over that provided
by Rule 64.
1.2 The filing of a motion for new trial / recon if allowed under the procedural rules of the
COMELEC / COA will toll the period. If denied, the aggrieved party only has the remaining period
which is no case shall be less than 5 days in any event, reckoned from notice of denial.920
1.3 Note that only judgments/final orders of the COMELEC en banc can be brought to the SC.
What is exercised is the power of review.
2. The bringing of a petition, shall not stay the execution of the judgment, final order or resolution
unless directed otherwise by the Supreme Court.921
RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS
The exercise of judicial function is to determine what the law is, and what the legal rights of paties are, with respect to a
matter is controversy; and whenever an officer is clothed with that authority, and undertakes to determine those
questions, he acts judicially. (The Mun.Council of Lemery, Batangas vs. The Prov. Board of Batangas, 56 PHIL. 260)
A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
Without jurisdiction refers to lack of jurisdiction of the court, board, or officer from the beginning.
Mandamus will lie:

a. in case any tribunal unlawfully neglects the performance of an act which the law specifically enjoys as a duty;
b. 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;
c. in case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a
right or office to which such other is legally entitled; and
d. there is no other plain, speedy and adequate remedy in the ordinary course of law.
The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and certain. The
corresponding duty of the defendant (respondent) to perform the required act must also be clear and specific.
(Enriquez, Jr. vs. Bidin, 47 SCRA 183).
Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a discretionary duty.
(Calderon vs. Sol. General, 215 SCRA 876)
The initial determination of what pleadings, documents or orders are relevant and pertinent to the petition rests
on the petitioner.922
918
919
920
Supra, Sections 1,2, and 3, Rule 64
921
WHAT IS CERTIORARI
1. Special Civil Action against a tribunal board or officer exercising judicial or quasi-judicial
function which is alleged in a verified petition filed by an aggrieved party to have acted without
jurisdiction or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
1.1 There is no appeal, or any plain speedy and adequate remedy in the ordinary course of law.
1.2 Praying for the judgment annulling / modifying the proceedings of such, tribunal board officer,
tribunal and granting such incidental reliefs as law and justice may require. 923
2. Certiorari may prosper notwithstanding the presence of an appeal when: (a) public welfare and
the advancement of public policy dictate it (b) when the broader interest of justice requires it (c) when
the writs issued are null, (d) the questioned order amounts to an oppressive exercise of judicial
authority.924
DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI
1. Certiorari as distinguished from a Petition for Review on Certiorari:
(a) In the former, the issue is whether the lower court acted without, in excess of or with grave
abuse of discretion, while in the latter the issue is based on questions of law
(b) In the former, it is addresses an interlocutory order prior to appeal of a judgment when there is
no appeal or any other speedy or adequate remedy, while the latter involves a review of
judgment/final order/ resolution on the merits
(c) The former is filed within 15 days from notice of judgment / order, while the latter is filed not
later than 60 days from notice of the resolution sought to be assailed or denial of a motion for
reconsideration
(d) The former shall stay the judgment /final order or award, while the latter does not stay the
order or resolution unless a temporary restraining order or preliminary injunction is issued
(e) In the former, the petitioner/respondent are the original parties in the case and the lower court
is not impleaded, while in the latter, the aggrieved party is the petitioner against the against the lower
court, agency and the prevailing party
(f) The former does not require the filing of a motion for reconsideration prior to filing, while the
latter requires a motion for reconsideration prior to filing
(g) In the former, the court is exercising appellate jurisdiction, while in latter, it is exercising original
jurisdiction
(h) The former can only be filed in the Supreme court, while the latter may be filed with Supreme
Court, Court of Appeals, or the Regional Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR TO FILING

A PETITION FOR CERTIORARI UNDER RULE 65
1. The exceptions are: (a)order is a patent nullity – court a quo has no jurisdiction (b) questions
have been raised in certiorari have been duly raised and passed upon by lower court (c)urgent
922
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
923
924
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric Cooperative, Inc. vs. Leyteco IV
Employees Union, ALU, 537 SCRA 154
necessity for resolution (d)where a motion for reconsideration will be useless (e)petitioner is deprived
of due process, there is extreme urgency for relief (f) in criminal case, relief from order of arrest is
urgent, and grant of relief by trial court is not probable (g) proceedings in lower court are a nullity for
lack of due process (h) issue is purely of law or where public interest is involved.
WHAT IS PROHIBITION
1. Special civil action against a tribunal, corporation, board, or person exercising judicial, quasi-
judicial or ministerial function which is alleged by an aggrieved party to be acting or about to act
without jurisdiction, in excess of its jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction
1.1 There is no appeal, or any plain, speedy and adequate remedy in the ordinary course of the
law
1.2 Praying that judgment be rendered commanding the respondent to desist from further
proceeding in the action or proceeding therein or otherwise granting such incidental reliefs as law and
justice may require.925
DISTINGUISHED FROM CERTIORARI
1. In certiorari the object is to correct the respondent’s acts by annulling proceedings, while in
prohibition it is to prevent the commission of an act or stopping proceedings.
2. In the former, the assailed acts have already been done, while in the latter the assailed acts
are about to be done or are being done.
3. In the former, the respondent performs judicial or quasi- judicial, while in the latter, the
respondent performs judicial, quasi-judicial functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
1. The exercise of judicial function is to determine what the law is, and what the legal rights of
parties are, with respect to a matter is controversy; and whenever an office is clothed with that
authority, and undertakes to determine those questions, he acts judicially. 926
2. A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION
1. Capricious and whimsical exercise of judgment as may be equivalent to lack or excess of

jurisdiction.
WHAT IS MANDAMUS
1. It is a special civil action against a tribunal, corporation, board, or officer alleged in a verified
petition filed by an aggrieved party to have unlawfully neglected the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excluded
another from the use and enjoyment of a right or office to which such other is entitled.
1.1 There is no plain, speedy or adequate remedy in the ordinary course of the law
1.2 Praying that judgment be rendered commanding the respondent, immediately or at some other
time specified by the Court to do the act required to be done to protect the rights of the petitioner, pay
damages sustained by reason of the wrongful acts.
2 ASPECTS OF MANDAMUS
925
926
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
1. The aspects of Mandamus are: (a) respondent unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust or station or (b) respondent
unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled.
2. The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and
certain. The corresponding duty of the defendant (respondent) to perform the required act must also
be clear and specific.927
3. Mandamus lies only to compel performance of a ministerial duty but not to compel
performance of a discretionary duty.928
3.1 In granting mandamus, respondent is commanded to perform the particular act or required to
be done and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.
4. An act is ministerial when 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 the exercise of his own
judgment. If given the authority to decide how and when, it is discretionary.
5. Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION
1. In Mandamus, the respondent is exercising ministerial power and he has unlawfully neglected
to perform it or excluded a party from occupying or enjoying the privilege of an office to which he is
lawfully entitled and the object is to compel action.
2. In Certiorari, the respondent is exercising judicial or quasi-judicial powers without jurisdiction or

with grave abuse of discretion amounting to an excess or lack of jurisdiction and the object is to
correct.
3. In prohibition , the respondent is exercising judicial, quasi-judicial or ministerial powers and he

is acting or about to act without jurisdiction or with grave abuse of discretion amounting to an excess
or lack of jurisdiction, and the object is to prevent
WHEN MAY IT BE FILED
1. Not later than 60 days from notice of the assailed judgment, order or resolution.
1.1 But if a timely motion for reconsideration is filed, whether required or not, the 60 days period
shall be counted from notice of the denial of the motion.929
1.2 An extension may be granted for compelling reasons but in no case to exceed 15 days.
WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS
1. The petition may be filed in the Supreme Court, the Regional Trial Court if relates to an act /
omission of a lower court, corporation, board, officer or person within its territorial jurisdiction, or the
Sandiganbayan, if in aid of its appellate jurisdiction
IT IS FILED WITH THE COURT OF APPEALS
1. Whether or not in aid of its appellate jurisdiction, when it involves acts / omissions of quasi-
judicial body, unless otherwise provided.
PARTIES TO BE IMPLEADED
927
Enriquez, Jr v Bidin, 47 SCRA 183
928
Calderon v Sol, 215 SCRA 876
929
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
1. In addition to the public respondents, the petition shall also join the person/s interested in
sustaining the proceedings and it shall be the duty of the private respondent to appear and defend
both in his behalf and that of the public respondents.
1.1 If costs are awarded, it shall be against private respondent only.
2. Unless otherwise directed by the court, the public respondents shall not appear or file an
answer or comment. If elevated to a higher court the public respondents shall be nominal parties, and
unless directed shall not appear or participate in the proceedings therein.930
ORDER TO COMMENT
1. If petition is sufficient in form or substance, a comment will be required, not a motion to

dismiss.931
1.1 Orders expediting proceedings / temporary restraining order / injunctions for the preservation
of the rights of the parties may be issued but the filing of the petition shall not interrupt the course of
the principal case unless a Temporary Restraining Order or Injunction is granted enjoining the public
respondent from further proceeding.932
ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY
1. Court may hear or require filing of memoranda. If it finds the allegations to be true, it shall
render judgment for the relief prayed for or to which petitioner is entitled.
2. It may also dismiss if patently without merit, prosecuted manifestly for delay or issues are too
unsubstantial to require consideration.933
SERVICE / ENFORCEMENT OF JUDGMENT –
1. Certified copy of judgment shall be served in such manger as the court may direct and
disobedience thereto shall be punished as contempt.
1.1 Execution may issue for any damages / cost in accordance with Section 1, Rule 39.934
RULE 66 -QUO WARRANTO
Quo warranto literally means “by what authority.” It is a special civil action to determine the right to the use or exercise
of public office or franchise 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. The action may be commenced for the Government by the Solicitor General or
by a public prosecutor; or by a person claiming to be entitled to a public office or public position usurped or unlawfully
held or exercised by another may bring an action in his own name. Where a private person files the action, he must
prove that he is entitled to the controverted position, otherwise the respondent has a right to the undisturbed
possession of his office. (See: Castro vs. Del Rosario, 19 SCRA 196; Tecson vs. Comelc, 424 SCRA 277)
DEFINED
930
931
932
933
934
1. Quo Warranto is a special civil action brought by verified petition in the name of the Republic of
the Philippines against: (a) person who usurps, intrudes into or unlawfully holds or exercises a public
office, positions or franchise (b) public officer who performs an act that constitutes a ground for
forfeiture of his office (c) an association that acts as a corporation within the Philippines without
legally being incorporated or without lawful authority to act.935
2. It literally means “ by what authority”.936
WHO CAN BRING A QUO WARRANTO PROCEEDING
1. An individual can bring a quo warranto action in his name when he is claiming to be entitled to
a public office or position usurped or exercised by another may bring an action.937
2. A quo warranto action must be commenced by the Solicitor General or Public Prosecutor when
directed by the President or upon complaint or otherwise he has good reason to believe that a cause
can be established by proof.938 If by complaint, a request for indemnity for expenses and costs may
be required to be deposited.939
WHERE ACTION IS BROUGHT
1. Besides the Court of Appeals, the action can be brought before the Supreme Court, a
Regional Trial Court exercising jurisdiction over the area where the respondent/s reside but, if the
Solicitor General commences the action, he may bring it before a Regional Trial Court in Manila, the
Court of Appeals or the Supreme Court.940
WHEN FILED
1. Within 1 year from accrual of the cause of action arising from ouster or right to hold position
PARTIES AND CONTENTS OF PETITION
1. When the action is against the person for usurping a public office, position or franchise, the
petition shall set forth the name of the person who claims to be entitled thereto, if any with an
averment of his right to the same and that the respondent is unlawfully in possession thereof.
1.1 All persons who claim to be entitled may be made parties, and their respective rights may be
determined in the same action.941
2. A reduction of time for pleadings and other proceedings may be directed by the Court to
secure the most expeditious determination of the matters involved therein consistent with the rights of
the parties. It can also take precedence over other civil matters pending before the Court.942
CONTENTS OF JUDGMENT
1. A judgment where the respondent is found guilty of usurping, intruding into, or unlawfully
holding or exercising a public office, position or franchise shall state that he be ousted and altogether
excluded therefrom, and that the rights of the petitioner or relator, meaning the real party in interest,
be determined as justice requires.943
1.1 It can also include a judgment for costs944
935
936
Tecson v Comelec, 424 SCRA 277
937
938
939
940
941
942
943
944
1.2 The rights of a person entitled to public office include the right to demand of the respondent all
books and papers in his custody or control appertaining to the office, otherwise he may be punished
for contempt.945
2. Damages if recoverable must be in another action filed within 1 year from entry of judgment.946
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST
1. In Quo Warranto the issue is the disqualification / ineligibility of the proclaimed candidate, in a
Protest the issue is an irregularity in the election.
2. If in the former, if the respondent is ineligible, the petitioner does not occupy the position, while
in the latter, the protestant can occupy the position if he obtains a plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION
1. In quo warranto involving an elective post the issue is the eligibility of candidate elected, while
in that involving an appointive post the issue is the legality of appointment.
2. In the former, if the respondent is found ineligible, the 2nd highest vote getter, even if eligible
cannot be declared elected, while in the latter, the resolution shall determine who has been legally
appointed and declare who is entitled to occupy the office.
RULE 67 – EXPROPRIATION
WHAT IS EXPROPRIATION
1. The taking of private property for public purpose upon the payment of just compensation. It is
also known as exercise of the power of eminent domain.
2. Public purpose which will justify expropriation of property generally means such activity which
will serve as convenience, safety, welfare, advantage, or benefit to the entire community, and not to a
particular individual, class or group of persons.
2.1 Public use is one which confers some benefit or advantage to the public. It is not confined to
actual use by the public. It includes the right of use by the public, whether it is exercised by one or
some or many members of the public.
2.2 Public use contemplates indirect public benefit or advantage.947 It must be considered in its
general concept of meeting a public need or a public exigency. 948 At present, whatever may be
beneficially employed for the general welfare satisfies the requirement of public use. 949
3. The commencement of the action is necessary only when the owner refuses to agree to sell
his property or if he agrees to sell, he is not amenable to the price.
HOW EXERCISED
1. Filing of a verified complaint which shall state with certainty the right and the purpose of
expropriation, describing the real / personal property sought to be expropriated, joining as defendants
all persons claiming / owning or occupying any part thereof or interest therein.
1.1 Note that the subject can be either real / personal property.950
945
946
947
Estate of Salud Jimenez v PEZA, 349 SCRA 240
948
Manosca v Court of Appeals, 252 SCRA 412
949
Reyes v NHA, 395 SCRA 494
950
2. If a local government unit intends to exercise the power of expropriation Section 19 of RA
7610 , it must comply with the following requisites: (a) An ordinance, not a resolution952 must be
951
enacted authorizing local chief executive to exercise the power of eminent domain (b) the purpose is
for public use, purpose or welfare or for the benefit of the poor and landless (c)there is payment of
just compensation, and (d) a valid and definite offer has previously been made to the owner but was
not accepted.
WHERE FILED
1. Regional Trial Court, regardless of value as it is an action which is incapable of pecuniary

estimation.953
UPON FILING AND SERVICE OF SUMMONS
1. The defendant may file: (a) A Manifestation that he has no objection or defense to the action, or
(b) An Answer stating all objections and defenses to the taking of the property.
1.1 No counterclaim, cross claim or 3rd party complaint shall be allowed in the answer or any
subsequent pleading.954
1.2 The non filing of an answer does not result in the defendant being declared in default nor does
it bar him from presenting evidence as to the amount of compensation due and to share in the
distribution of the award.
2. The plaintiff may upon making a deposit in or with an authorized government depository of an
amount equal to the assessed value of the property for purposes of taxation may take possession of
the real property.
2.1 If it involves personal property, its value as provisionally ascertained. 955
2.2 Note that under Section 19 of the Local Government Code, the LGU can take possession upon
deposit with the court of fifteen (15%) percent of the Fair Market Value based on the current tax
declaration.
2.3 Under RA 8974,956 the government is required to make immediate payment to the property
owner upon filing of the complaint equivalent to the market value as stated in the current tax
declaration or the zonal value whichever is higher, plus the value of the improvements using the
replacement cost method.957
3. The case now proceeds to a determination of the authority of the plaintiff to expropriate.
3.1 Thereafter, the court may dismiss the petition or issue an order of expropriation or order of
condemnation.
3.2 The order of expropriation is appealable but shall not prevent the determination of just
compensation.
3.3 Since the order of expropriation has been entered, the plaintiff cannot dismiss or discontinue
the case except on terms that the court deems just and equitable.958
4. The right of plaintiff to enter into the property and appropriate shall not be delayed by an
appeal. However, if appellate court determines that no right of expropriation exists, it shall order the
RTC to enforce restoration and determine the damages that the defendant sustained. 959
951
Local Government Code
952
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
953
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
954
955
956
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement Infrastructure Projects and Other Purposes
957
Republic v Gingoyon, GR No. 166429, December 19, 2005
958
959
5. Just compensation is then determined by no more than 3 court appointed commissioners. If
the Court accepts their report, it will render judgment based thereon. Such judgment is also
appealable.960 The receipt by the defendant of the compensation does not strip him of the right to
appeal as the rules provide that the plaintiff may execute its judgment as soon as it is obtained. 961
5.1 Just compensation is defined as the full and fair equivalent of the property sought to be
expropriated considering the cost of acquisition, current value of like properties, actual or potential
uses and in case of lands, their size, shape and location.962
5.2 As a rule, the just compensation to be determined is that which obtains at the time of the taking
of the property or the filing of the action, whichever comes first.963The rationale is that the owner must
be compensated only for what he actually loses, regardless of appreciation or depreciation
subsequent to taking possession or filing of the action.
5.3 If upon determination of just compensation, the ownership is uncertain or claims are
conflicting, the court may order sum / sums paid to be given to the Court for the benefit of the person
adjudged in the same proceeding to be entitled thereto but payment will be required to be given to the
defendant or the court before plaintiff can enter into or retain the property.964
5.4 The plaintiff shall have the right to enter into the property and expropriate for public use or
retain it if already entered. If defendant or counsel absent themselves from the court or decline to
receive the amount, it shall be deposited in the court and shall have the effect of actual payment.965
5.5 Title will pass only upon full payment of the just compensation.966
5.6 Non payment does not entitle the landowner to recover possession. However, if the
government fails to pay just compensation within 5 years from finality of judgment, the owners shall
have the right to recover the property.967
5.7 When private land is expropriated for a particular public use and that public use is abandoned,
the land expropriated: (a) shall not revert if the acquisition is in fee simple unconditional, or (b) is re-
acquired if expropriated with a condition that if the public use is abandoned or ended, title reverts to
former owner.968
6. The judgment shall state definitely, by an adequate description, the particular property or
interest therein expropriated and the nature of the public use or purpose for which it is expropriated, a
certified copy of which judgment shall be recorded in the registry of deeds and its effect shall to be
shall to be vest in the plaintiff title to the real estate for public use or purpose.969
WHO PAYS FOR COSTS
1. All costs, except that incurred by rival claimants, shall be paid by the plaintiff unless an appeal
is taken therefrom by the owner of the property and the judgment is affirmed. Costs shall include the
fees of the commissioners.970
RULE 68 – FORECLOSURE OF REAL ESTATE
NATURE OF THE ACTION
1. It is an action affecting interest in real property and is hence, a real action. Thus venue is
where the real property or a portion thereof is located.
960
Supra, Sections 5,6,7, and 8, Rule 67
961
City of Manila v Batlle, 25 Phil 566
962
NPC v De La Cruz, GR No. 156093, February 2, 2007
963
Republic v Sarabia, 468 SCRA 142
964
965
966
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
967
Yujuico v Atienza, Jr., 472 SCRA 463
968
Fery v Municipality of Cabanatuan, 42 Phil 28
969
970
1.1 If it involves several parcels of land in different provinces covered by a single mortgage
contract, it can be filed in any place where one of the parcels is located and the judgment so rendered
may be executed in the other provinces.971
2. It is also an action that is incapable of pecuniary estimation.972
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION
1. The complaint in foreclosure of a mortgage or other encumbrance shall set forth: (a) Date and
due execution of the mortgage (b) Its assignments, if any (c) Names/residences of
mortgagor/mortgagee (d) Description of the mortgaged property (e) Statement of the date of the note
or other documentary evidence of the obligation secured by the mortgage (f) Amount claimed to be
unpaid (g) Name/residences of persons having or claiming an interest in the property subordinate in
right to that of the holder of the mortgage, all of whom shall be made defendants.973
WHAT COURT CAN DO
1. The action proceeds like an ordinary civil action.
2. After trial, if the court shall find the facts to be true, it shall ascertain the amount due the
plaintiff and render judgment for the sum with an order for it to be paid by the adverse party to the
court or judgment oblige within a period of not less than ninety (90) days nor more than one hundred
twenty (120) days from entry of judgment, and that in case of default, the property will be sold at
public auction. This period is known as the Mortgagor’s Equity of Redemption. 974
2.1 Distinguishing Equity of Redemption from Right of Redemption: (a) Equity of Redemption is
the equitable right of the mortgagor to redeem, while Right of Redemption is the statutory right of the
mortgagor to redeem. (b) The former is available before auction sale, while the latter is available after
auction sale (c) The former is available only judicial foreclosure, while the latter is available only in
extra-judicial foreclosure, but by exception is allowed in judicial foreclosure when the mortgagee is
the PNB or a bank or a banking institution (d) The period for the exercise of the former is within 90
days but no more than 120 days from entry of foreclosure judgment, while in the latter it is one year
from redemption is within one year from date of registration of the sheriff’s certificate of sale, except
when the mortgagor is a juridical person, in which case, the right to redeem must be exercised until,
but not after, the registration of the certificate of sale with the applicable register of deeds which in no
case shall be more than three months after foreclosure, whichever is earlier.975
3. If not paid, upon motion, the court shall order the property sold in the manner prescribed under
Rule 39, such sale shall not affect the rights of persons holding prior liens/encumbrances on the
property or parts thereof.
3.1 Upon motion, sale shall be confirmed, and such shall operate to divest the rights in the
property 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.
3.2 Note that when judicial foreclosure is resorted to there is no right of redemption except when
the law allows a redemption. Example: Section 47 of the Philippine General Banking Law which
allows a one year period for redemption.
3.3 Upon finality of the order of confirmation or upon expiration of the period of redemption when
allowed by law, the purchaser at auction is entitled to possession unless a third party is holding it
adversely to the judgment obligor, in which case, the purchaser at the auction sale may secure a writ
of possession from the Court ordering the sale.976
971
El Hogar Filipino v Seva, 57 Phil 573
972
Russel v Vestil, 304 SCRA 738
973
974
975
Section 47, Philippine General Banking Law
976
3.4 What is to be registered is the order of confirmation. If there is no right of redemption, the title
of the mortgagor is cancelled and a new one issued in the name of the purchaser.
3.5 If with right of redemption, the annotation is to await final deed of sale executed by Sheriff.977
4. Proceeds of the sale shall, after deducting the costs, be paid to the persons foreclosing the
mortgage. If there be a balance or residue, it shall be paid to the junior encumbrancers, in the order of
priority ascertained by the Court, if none or there still be a balance or residue after payment, to the
mortgagor.978
5. If debt is not all due, as soon as a sufficient portion of the property has been sold to pay the
total amount, the sale shall terminate. Afterwards, no more shall be sold, but if property cannot be
sold in portions, the entire property is to be sold with rebate of interest if proper when the full debt is
paid.979
6. There can be a deficiency judgment if there is a balance. Upon motion, the court shall render
judgment against the defendant for the balance which may then be the subject of execution.
6.1 If the balance is due at the time of rendition of judgment or at such time as the remaining
balance becomes due under the terms of the original contract, which time shall be stated in the
judgment.980
7. Note that the provisions of Section 31 as to use of premises by obligor, Section 32 as to rents
still due the obligor, and Section 34 as to recovery of price if sale is not effective under Rule 39 are
applicable insofar as they are not inconsistent.981
RULE 69 – PARTITION
A partition agreement which was executed pursuant to a will that was not probated can not be given effect. 982
OBJECT OF PARTITION
1. Separate, divide and assign a thing that is held in common among those to whom it may
belong. The remedy may be availed of regardless of whether it involves real or personal property, or
both
WHO CAN FILE AND HOW
1. Any person, having the right to compel partition of real estate may file, setting forth therein the
nature and extent of his title, adequate description of the property, joining as defendants all other
persons interested in the property.983
2. Partition and Accounting under this rule is in the nature of a quasi in rem action984.
PROCEDURE
1. If after trial, it finds for the plaintiff, it will order partition. This is known as the order of partition
977
978
979
980
981
982
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
983
984
Valmonte v Court of Appeals, 52 SCRA 92
1.1 A final order decreeing partition and accounting may be appealed by the party aggrieved
thereby.985
2. Thereupon, if the parties agree, the parties may undertake the partition among themselves by
proper instruments. The court shall thereupon confirm the partition so agreed by the parties. Such
partition and order of confirmation shall then be recorded in the registry of deed of the place where
the property is situated.
2.1 If they fail to agree, the Court shall appoint not more than 3 commissioners, commanding them
to set-off to the plaintiff and each party in interest such part and proportion of the property as the court
will direct.986
2.2 Before discharging their duties, the commissioners shall take an oath that they will faithfully
discharge their duties, and in so doing they shall view and examine the real property , shall hear the
preferences of the parties, determine the comparative value of the property, 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.987
2.3 If the property cannot be divided without prejudice to the interest 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 amount as determined by the commissioners to be equitable, unless one of the interested
parties asks that the property be sold instead.988
2.4 A report should thereupon be made by the commissioners and filed with the court, which shall
then give the parties 10 days within which to file heir objections to the findings. No proceeding shall
pass title to the property or bind the parties until the court shall have accepted the report and
rendered judgment thereon. Note though that the court has the option to accept or re-commit the
matter to the commissioners.989
2.5 If actual partition of the property is made, judgment shall state definitely the metes and bounds
and adequate description of the property, the particular portion allocated to each party and its effect is
to vest to each party in the action in severalty the portion of real estate assigned to him. If the whole
property is assigned to one after payment to the others, judgment has the effect of vesting in the party
making payment the whole of the real estate free from any interest of the other parties. If the property
is sold and proceeds divided, judgment has the effect of vesting the property or portion sold in the
purchaser free from any interest of the parties to the action.990Judgment may include recovery from
the other of just share of rents and profits received by the other from the real estate in question991 and
costs equitably apportioned among the parties.992
2.6 This judgment is called the judgment of partition and may be the subject of an appeal.
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER
WHAT IS FORCIBLE ENTRY AND UNLAWFUL DETAINER
1. Forcible Entry is an action brought when a person is deprived of possession of land/building by

force, intimidation, stealth or threat.
2. Unlawful Detainer is an action brought by a lessor, vendor, vendee or other person against
whom possession of land/building is unlawfully withheld after expiration or termination of the right to
hold possession, by virtue of a contract, express or implied.
985
986
987
988
989
990
991
992
2.1 Such action must be brought within one year after withholding such possession. It is also
known as an accion interdictal which seeks to recover possession de facto or physical, actual or
material possession.
3. Note that it is the character or nature of the defendant’s possession which will determine which
of the two actions is appropriate.
4. In addition to restitution of possession, damages and costs may also be recovered.993
UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL DISTINGUISHED
1. From Accion Publiciana- which is a plenary action to recover right of possession that is brought
after one year from accrual of the cause of action in a Regional Trial Court
2. From Accion Reivindicatoria- which is an action to recover ownership, including possession.
WHAT IS REQUIRED FOR THE ACTION TO BE FILED
1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against lessee only
after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee
1.1 Or by serving written notice of such demand upon the person found within the premises
1.2 Or by posting such notice on the premises if no person is found thereon and the lessee fails to
comply within 15 days in the case of land or 5 days in case of building.994
1.3 If the lease is on a month to month basis, demand to vacate is necessary to terminate the
lease upon expiration of the month so as to prevent tacita reconduccion. 995 It is also necessary when
one occupies upon tolerance or permission without a contract as the occupant is bound by an implied
promise to vacate upon a demand.996
1.4 If action is due to the termination of the lease due to the expiration of its term, demand is not a
prerequisite.997Neither is it required when there is a stipulation dispensing with the need for demand.
2. No demand is required in Forcible Entry cases.
WHEN, WHERE FILED AND NATURE OF PROCEEDINGS
1. Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from date of actual
entry or date of last demand before the Municipal Trial Court and shall be covered by the Rules on
Summary Procedure, irrespective of the amount of damages or unpaid rentals, unless they are
covered by agricultural tenancy laws or otherwise provided by law. 998
PROCEDURE TO BE FOLLOWED
1. The only allowable pleadings are the complaint, compulsory counterclaim and cross-claim
pleaded in the answers and answers thereto. All pleadings are to be verified.999
2. Upon filing of the complaint, the court may, from an examination of the allegations in the
complaint and such evidence attached thereto, dismiss the complaint on any of the grounds for a
motion to dismiss which are apparent therein.
2.1 If not dismissed, it shall proceed to issue summons.1000
993
994
995
Yap v Cruz, 208 SCRA 692
996
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
997
Lanuza v Munoz, 429 SCRA 562
998
999
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
3. If summons is issued, the defendant shall file his answer within 10 days from receipt, serving a
copy thereof to the plaintiff. It is an error on the part of the judge to give the defendants 15 days to
file an answer.1001
3.1 Affirmative or negative defenses not pleaded are deemed waived, except lack of jurisdiction
over the subject matter.
3.2 Crossclaims or counterclaims not asserted are barred. If the answer contains crossclaims or
counterclaims, answers thereto are to be filed within 10 days from service of the answer in which they
are pleaded.1002
4. Failure to answer the complaint within the period above provided, the court, motu proprio, or
on motion of the plaintiff, shall render judgment as may be prayed for therein: Provided, however,
That the court may in its discretion reduce the amount of damages and attorney’s fees claimed for
being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section
3, Rule 9 of the Rules of Court, if there are two or more defendants.1003
5. A preliminary conference is then scheduled not later than 30 days after the last answer is filed.
The provision of Rule 18 on pre-trial shall be applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
5.1 The failure of the plaintiff to appear in the preliminary conference shall be a cause for the
dismissal of his complaint.
5.2 The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.
5.3 If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance
with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall appear at the preliminary
conference.
5.4 No postponement shall be granted except for highly meritorious grounds and without prejudice
to sanctions which the court may deem to impose.1004
6. Within 5 days after the termination of the preliminary conference, an order shall be issued by
the court stating the following matters: (a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof (b)The stipulations or admissions entered into by the parties
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the
parties, judgment may be rendered without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from issuance of the order (d) A clear specification
of material facts which remain controverted; and (e) Such other matters intended to expedite the
disposition of the case.1005
7. Within 10 days from receipt of the order, the parties shall submit the affidavits of their
witnesses, evidences and position papers setting forth the law and the facts relied upon. 1006
7.1 The affidavits submitted shall only state the facts of direct personal knowledge of the affiant
which are admissible in evidence and must indicate their competence to testify. A violation may
subject the party or counsel to disciplinary action and will be cause to expunge the inadmissible
affidavit or portion thereof from the record.1007
1000
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1001
Santos vs. Tanciongco, 567 SCRA 134
1002
1003
1004
1005
1006
1007
8. The following petitions, motions, or pleadings are prohibited and shall not be allowed to be
filed:
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section pertaining to referral to the Lupon for
conciliation. The case may then be dismissed without prejudice and may be revived upon showing of
compliance.1008 The filing of a motion to dismiss after an answer is filed does not violate the rules.
What is proscribed is a motion to dismiss that stops the running of the period for the filing of an
answer and cause undue delay.1009
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; A motion
for reconsideration can be filed when the case is already pending before the appellate court. 1010 And
a motion for reconsideration of rulings or pertaining to other incidents, not of the judgment is
allowed1011
(d) Petition for Relief from Judgment
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by
the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.1012
9. A preliminary mandatory injunction may be granted by the court upon motion presented within
5 days from the filing of the complaint to restore him in possession, which should be decided by the
court within 30 days from filing thereof1013 and upon motion of the plaintiff, within 10 days from
perfection of an appeal to the Regional Trial Court to restore him in possession if the court is satisfied
that the appeal of the defendant is frivolous or dilatory or that the plaintiff’s appeal is prima facie
meritorious.1014
10. The court shall then render judgment within 30 days after receipt of the last affidavits and
position papers, or the expiration of the period for filing the same.
10.1 However, should the court find it necessary to clarify certain material facts, it may, during the
said period, issue an order specifying the matters to be clarified, and require the parties to submit
affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
10.2 Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory
affidavits, or the expiration of the period for filing the same.
1008
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1009
Heirs of Olivas v Flor, 161 SCRA 393
1010
Jakihaca v Aquino, 181 SCRA 67
1011
Lucas v Fabros, 324 SCRA 1
1012
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1013
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1014
10.3 The court shall not resort to the clarificatory procedure to gain time for the rendition of the
judgment.1015
11. Should the defense of ownership be raised, the court shall only consider the same if the issue
of possession cannot be resolved without deciding the issue of ownership. It shall thus be resolved
only to determine possession and any judgment shall be conclusive only on possession and shall not
be a bar to another action between the parties respecting the title to the land or building 1016
12. The judgment to be rendered by the court in favor of the plaintiff shall include restitution of the
premises, the sum justly due as arrears of rent or as reasonable compensation for the use of the
premises, attorney’s fees and costs. If the allegations are not true, it shall render judgment for the
defendant for recovery of cost. If a counterclaim is established, the court shall render judgment for the
sum found in arrears from either party and award costs as justice requires. 1017
12.1 While the general rule in ejectment cases that the recoverable damages are fair rental value or
reasonable compensation for the use or occupation of real property, liquidated damages may be
recovered if so stipulated.1018
12.2 The judgment is appealable to the appropriate Regional Trial Court, which shall decide the
case on the basis of the entire record of the proceedings in the court of origin and such memoranda
or brief as may be submitted or required1019
12.3 If judgment is rendered against the defendant, the execution shall issue immediately upon
motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient
supersedeas bond if there are rentals in arrears1020, approved by the court and executed in favor of
the defendant to pay rents, damages and costs accruing down to the time of the judgment appealed
from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount
of the rent due from time to time under the contract or the reasonable value for use and occupation
adjudged by the court on or before the 10th day of each succeeding month or period.1021
12.4 In conformity with Section 19, Rule 70 of the 1997 Rules of Civil Procedure, it has been
consistently ruled that if no supersedeas bond is filed, the trial court, upon motion, may correctly order
execution of judgment.1022 Note that there is no necessity for a motion for the court to fix the
supersedeas bond as the amount of the same can be ascertained from the judgment. Also, if the
records of the case have already been transmitted to the appellate court, the supersedeas bond may
be filed with the appellate court.1023
12.5 The filing of a notice of appeal and payment of the necessary docket does not stay the
execution of the decision.
12.6 The judgment of the appellate court shall however be subject to immediate execution without
prejudice to a further appeal1024
PERSONS BOUND BY A JUDGMENT IN EJECTMENT CASES
1. In an ejectment case, the judgment is binding on: (a) a sublessee as his right is subsidiary to
that of the lessee1025 (b) a guest or successor in interest, including members of the family of the
lessee, his servants and employees1026(c) trespassers, squatters or agents of the defendant, and (d)
transferees pendente lite.
1015
Supra, Section 11, Rule 70, Article
1016
1017
1018
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1019
1020
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1021
1022
Silverio v Court of Appeals, 407 SCRA 240
1023
Chua v Court of Appeals, 286 SCRA 437
1024
1025
Dela Cruz v Roxas, 75 Phil 457
1026
Ariem v Delos Angeles, 49 SCRA 343
RULE 71 – CONTEMPT
WHAT IS CONTEMPT
1. Willful disobedience or open disrespect of the orders, authority, or dignity of a court or judge
acting in judicial capacity by disruptive language or conduct or by failure to obey the orders of the
court
KINDS OF CONTEMPT
1. Direct Contempt – consists of misbehaviour in the presence of or so near a court as to obstruct

or interfere with the proceedings before the same, it includes, disrespect, offensive personalities
against others, refusal to be sworn or answer as a witness, or to subscribe to an affidavit/deposition
when lawfully required to do so.
1.1 This kind of contempt may be summarily adjudged and be punished by a fine not exceeding
PHP 2,000.00 or imprisonment of not exceeding 10 days or both if it be by a Regional Trial Court or a
fine not exceeding PHP 200.00 or imprisonment not exceeding 1 day or both if it be by a Municipal
Trial Court.
1.2 The remedy therefrom is certiorari/ prohibition, in which case the judgment is suspended
pending the petition provided the petitioner files a bond fixed by the court which rendered the
judgment and conditioned that he will abide by and perform the judgment should the petition be
decided against him. 1027
1.3 It is direct contempt if a pleading contains derogatory, offensive or malicious statements

against a particular judge when submitted in the same court where the judge is presiding. If submitted
elsewhere, it is indirect contempt.1028
2. Indirect Contempt – consists of (a) Misbehavior of an officer of a court in the performance of

his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the act of a person who, after being dispossessed or
ejected from any real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property for the purpose of
executing acts of ownership or possession, or in any manner disturbs the possession given to the
person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule; (d)
Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the administration
of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without
authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a
person or property in the custody of an officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to bring
the respondent into court, or from holding him in custody pending such proceedings. 1029
2.1 This kind of contempt may be initiated motu propio by the court against which the contempt
was committed by an order or any formal charge requiring the respondent to show cause why he
should not be punished for contempt. In other cases, it shall be commenced by verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon full
compliance with the requirements for the filing of initiatory pleadings in the court concerned.
2.2 If the charges are related to the principal action pending before the court, the petition shall so
allege such fact but it shall be docketed, heard and decided separately, unless the court in its
discretion orders consolidation of the charge and principal action for joint hearing and decision. 1030
2.3 The charge shall be filed in the Regional Trial Court if the contempt is committed against it or a
court of equal or higher rank or against an officer appointed by it.
1027
1028
Ang v Castro, 136 SCRA 453
1029
1030
2.4 If against a lower court, it may be filed in the Regional Trial Court in the place where the lower
court sits or in such lower court, subject to appeal to the Regional Trial Court.1031
2.5 This kind of contempt is punishable by a fine not exceeding P 30,000.00 or imprisonment not
exceeding 6 months or both, if committed against a Regional Trial Court. If against a Municipal Trial
Court, by a fine not exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it consists in a
violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete
restitution. A writ of execution may be issued to enforce a fine.1032 If it consists in refusal or omission
to do an act within his power to perform, he may be imprisoned by order of the court until it is
performed.1033
2.6 A judgment for indirect contempt is appealable to the Regional Trial Court, but execution shall
not be suspended without the filing of a bond.1034
2.7 An order dismissing a contempt charge or exoneration from such, is not appealable. 1035
OTHERS
1. If no hearings are held forthwith and the respondent has been taken into custody, he may be
released upon payment of a bond, but if he fails to appear on the hearing of the charge, he may be
ordered arrested and the bond forfeited.1036
2. If already imprisoned, the court may discharge the respondent if public interest will not be
prejudiced by the release.1037
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers or shall have
suppletory effect to their rules. The RTC of the place where the contempt is committed shall have
jurisdiction.1038
DEFINING CRIMINAL AND CIVIL CONTEMPT
It is criminal contempt when the purpose is to vindicate the authority of the court and protect its
outraged dignity. It is civil contempt when there is failure to do something ordered by the court to be
done for the benefit of another party.1039
SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW
SCOPE OF APPLICATION
1. All disputes will require conciliation.
2. The exceptions are the following: (a) where one party is the government or any subdivision or
instrumentality thereof (b) where one party is a public officer or employee, and the dispute relates to
the performance of his official functions (c) offenses punishable by imprisonment exceeding 1 year or
a fine exceeding PHP 5000.00 (d) offenses where there is no private offended party (e) where the
dispute is brought by or against a corporation, partnership or juridical entity (f) where the dispute
involves real properties located in different cities or municipalities unless the parties agree to submit
their differences to amicable settlement by an appropriate lupon (g) where dispute involves parties
who actually reside in barangays of different cities or municipalities, except when the barangays
1031
1032
1033
1034
1035
In Re, Mison, Jr, 33 SCRA 30
1036
1037
1038
1039
Yasay v Recto, 313 SCRA 739
actually adjoin each other and the parties agree to submit their differences to amicable settlement by
an appropriate lupon (h) such other classes of disputes which the President may determine in the
interest of justice or upon recommendation by the Secretary of Justice (Section 408, PD 1508). (i)
disputes arising from the implementation of the CARP (j) Employer-Employee disputes (k) action to
annul a judgment upon a compromise.
3. Note however that while no petition, complaint, action or proceeding within the authority of the
lupon shall be filed directly with the court or any government office for adjudication UNLESS there
has been a confrontation before the lupon chairman or pangkat, and that no conciliation or settlement
has been reached as certified by the lupon secretary or pangkat secretary, or unless the settlement
has been repudiated within 10 days from its date by a statement sworn before the punong barangay
to the effect that his consent is vitiated by fraud violence or intimidation ( Section 418, PD 1508), the
following cases may be filed directly: (1) accused in under detention (2) person has otherwise been
deprived of personal liberty calling for habeas corpus proceedings (3) when action is coupled with a
provisional remedy (4) where action may otherwise be barred by prescription (Section 412, PD 1508)
VENUE
1. The proper venue for conciliation is as follows: (a) if between persons actually residing in the
same barangay-before the lupon of the said barangay (b) if between actual residents of different
barangays within the same city of municipality- before the lupon where the respondent resides, if
there be several respondents- before the lupon where anyone of them resides at the election of the
complainant (c) if involving real property or any interest therein- the barangay lupon where the
property or larger portion is located (d) if arising in the workplace where the contending parties are
employed or at the institution where such parties are enrolled for study- before the lupon of the
barangay where the workplace or institution is located.
2. Any objection to venue shall be raised before the Punong Barangay, otherwise they are
waived. Legal questions may be submitted to the Secretary of Justice or his duly designated
representative whose ruling thereon shall be binding.
PROCEDURE FOR CONCILIATION OR SETTLEMENT
1. The procedure for settlement is as follows:
(a) Initiation of complaint, orally or in writing, to the lupon chairman of the barangay
(b) Mediation by lupon chairman on the next working day from receipt of the complaint, failing in
which within 15 days from the first meeting, he shall forthwith set a date for the constitution of the
pangkat
(c) The pangkat shall convene not later than 3 days from constitution to hear the parties and
explore the possibility of an amicable settlement within 15 days from the day it convenes, which
period is extendible for another 15 days, except in clearly meritorious cases.
2. Note however, that while prescription does not run upon filing of the complaint and shall
resume only upon receipt of the complaint or certificate of repudiation, or certification to file action, the
interruption shall not exceed 60 days from filing of the complaint with the punong barangay. (Section
410, PD 1508)
3. The form of the amicable settlement shall be in writing, in a language/dialect known to the
parties, signed by them and attested by the lupon/pangkat chairman (Section 411, PD 1508).
3.1 This shall have the force and effect of a final judgment of a court upon expiration of 10 days
from date thereof unless repudiation has been made or a petition to nullify the award has been filed
before the proper court.
3.2 This does not apply to cases already pending but subsequently referred to the lupon for
amicable settlement under the last paragraph of Section 408,as the same is submitted back to the
court to serve as basis for rendition of judgment. (Section 416, PD 1508).
3.3 The award or settlement may be enforced by execution by the lupon within 6 months from the
date of the settlement. After the lapse of the said period, by action in the appropriate city of municipal
court. (Section 417, PD 1508)
4. Note however that if a settlement is not complied with, the injured party may bring an action
against the offending party to recover the original amount of his claim, thereby rescinding the
compromise under Article 2041 of the Civil Code which was held to qualify Article 2037 of the Civil
Code as to the effect of a compromise being considered as constituting res judicata.1040
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE
REVISED RULE ON SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) and to achieve an
expeditious and inexpensive determination of the cases referred to herein, the Court Resolved to
promulgate the following Revised Rule on Summary Procedure:
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary procedure in the Metropolitan Trial Courts
in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases
falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered. Where attorney’s fees are awarded, the same shall not
exceed twenty thousand pesos (P20,000).
(2) All other cases, except probate proceedings, where the total amount of plaintiff’s claim does
not exceed one hundred thousand pesos (P100,000) or, two hundred thousand pesos (P200,000) in
Metropolitan Manila, exclusive of interest and costs. (As amended by A.M. No. 02-11-09-SC, dated
Nov. 12, 2002; this amended took effect on November 25, 2002)
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg 221041
1040
Chavez v Court of Appeals, GR 159411, March 18, 2005
1041
A.M. 00-11-01-SC, April 15, 2003
(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000), or
both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, That in offenses involving damage to property through criminal
negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000).
This rule shall not apply to a civil case where the plaintiff’s cause of action is pleaded in the
same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case
where the offense charged is necessarily related to another criminal case subject to ordinary
procedure.
SEC. 2. Determination of applicability. – Upon the filing of a civil or criminal action, the court
shall issue an order declaring whether or not the case shall be governed by this Rule.
A patently erroneous determination to avoid the application of the Rule of Summary Procedure
is a ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings. –
A. Pleadings, allowed. – The only pleadings allowed to be filed are the complaints,
compulsory counterclaims and cross-claims pleaded in the answer, and the answers thereto.
B. Verification. – All pleadings shall be verified.
SEC. A. Duty of court. – After the court determines that the case falls under summary
procedure, it may, from an examination of the allegations therein and such evidence as may be
attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the
dismissal of a civil action.
If no ground for dismissal is found, it shall forthwith issue summons which shall state that the
summary procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to dismiss can
be filed except on the grounds of lack of jurisdiction and non-compliance with the requirement on
conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing of an answer
but a dismissal grounded on any of the causes stated in Rule 16 can only be effected prior to the
issuance of the court of summons and not after an answer has been filed (Heirs of Ricardo Olivas vs.
Flor, 161 SCRA 393)
SEC. 5. Answer. – Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from
service of the answer in which they are pleaded.
SEC. 6. Effect of failure to answer. – Should the defendant fail to answer the complaint within
the period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment
as may be prayed for therein: Provided, however, That the court may in its discretion reduce the
amount of damages and attorney’s fees claimed for being excessive or otherwise unconscionable.
This is without prejudice to the applicability of Section 4, Rule 18 of the Rules of Court, if there are
two or more defendants.
NOTE: Rendition by the court of judgment on account of failure to file an answer or to appear during
the preliminary conference may not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-
1296, October 5, 2000)
SEC. 7. Preliminary conference; appearance of parties. – Not later than thirty (30) days after
the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases
shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled
to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance
with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall appear at the preliminary
conference.
SEC. 8. Record of preliminary conference. – Within five (5) days after the termination of the
preliminary conference, the court shall issue an order stating the matters taken up therein, including
but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the
parties, judgment may be rendered without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted; and
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. – Within ten (10) days from receipt of the
order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses
and other evidence on the factual issues defined in the order, together with their position papers
setting forth the law and the facts relied upon by them.
SEC. 10. Rendition of judgment. – Within thirty (30) days after receipt of the last 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 necessary to clarify certain material facts, it may, during the
said period, issue an order specifying the matters to be clarified, and require the parties to submit
affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the
judgment.
NOTE: That hearings are not necessary unless for the purpose of clarifying certain material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. – The filing of criminal cases falling within the scope of this Rule
shall be either by complaint or by information; Provided, however, That in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by information, except when the offense
cannot be prosecuted de officio.
The complaint or information shall be accompanied by the affidavits of the complainant and of
his witnesses in such number of copies as there are accused plus two (2) copies of the court’s files.
If this requirement is not complied with within five (5) days from date of filing, the case may be
dismissed.
Sec. 12 Duty of court. –
(a) If commenced by complaint. – On the basis of the complaint and the affidavits and other
evidence accompanying the same, the court may dismiss the case outright for being patently without
basis or merit and order the release of the accused if in custody.
(b) If commenced by information. – When the case is commenced by information, or is not
dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together
with copies of the affidavits and other evidence submitted by the prosecution, shall require the
accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in
his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from
receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the
counter-affidavits of the defense.
Sec. 13 Arraignment and trial. – Should the court, upon a consideration of the complaint or
information and the affidavits submitted by both parties, find no cause or ground to hold the accused
for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment
and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he
enters a plea of guilty, he shall forthwith be sentenced.
Sec. 14 Preliminary conference. – Before conducting the trial, the court shall call the parties to
a preliminary conference during which a stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other
matters may be taken up to clarify the issues and to ensure a speedy disposition of the case.
However, no admission by the accused shall be used against him unless reduced to writing and
signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the
accused.
Sec. 15 Procedure of trial. – At the trial, the affidavits submitted by the parties shall constitute
the direct testimonies of the witnesses who executed the same. Witnesses who testified may be
subjected to cross-examination, redirect or re-cross-examination. Should the affiant fail to testify, his
affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the
adverse party may utilize the same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was
previously submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or counter-affidavits as part of

his direct evidence, he shall so manifest during the preliminary conference, stating the purpose
thereof. If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of
the defense shall be submitted to the court and served on the adverse party not later than three (3)
days after the termination of the preliminary conference. If the additional affidavits are presented by
the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution
within three (3) days from such service.
Sec. 16. Arrest of accused. – The court shall not order the arrest of the accused except for
failure to appear whenever required. Release of the person arrested shall either be on bail or on
recognizance by a responsible citizen acceptable to the court.
Sec. 17 Judgment. – Where a trial has been conducted, the court shall promulgate the
judgment not later than thirty (30) days after the termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. – Cases requiring referral to the Lupon for conciliation under the
provisions of Presidential Decree No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be revived only after such requirement
shall have been complied with. This provision shall not apply to criminal cases where the accused
was arrested without a warrant.
SEC. 19. Prohibited pleadings and motions. – The following pleadings, motions, or petitions
shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or information except on the
ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for Relief from Judgment

(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by
the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. – The affidavits required to be submitted under this Rule shall state only
facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show
their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from
the record.
SEC. 21. Appeal. – The judgment or final order shall be appealable to the appropriate regional
trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129.
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 prejudice to a further appeal that may be
taken therefrom.
NOTE: That immediate execution requires proof that the losing party has been served with notice of
judgment (Dy vs. CA, 191 SCRA 585) and that notice of the motion for execution to the adverse party
is required ( Limpo vs. CA, 333 SCRA 575)
SEC. 22. Applicability of the regular rules. – The regular procedure prescribed in the Rules of
Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are
not inconsistent herewith.
SEC. 23. Effectivity. – This revised Rule on Summary Procedure shall be effective on
November 15, 1991.
In fact, it has been declared that the motion for extension of time within which a party may plead is
not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity
to resist the application, but an ex parte motion made to the court in behalf of one or the other of the
parties to the action, in the absence and usually without the knowledge of the other party or parties.
(Commercial Union Assurance Company Limited, et. al. vs. Lepanto Consolidated Mining Company,
et. al., L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491, May 28,
1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a request for extension of
time may be filed ex parte and granted without the usual formalities applicable to motions in general.
(Moya vs. Barton, 76 Phil. 831)

Rule I General Provisions

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Rule I General Provisions

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RULE I GENERAL PROVISIONS

1. The Rules shall be known and cited as the Rules of Court.1

2.3 Civil Actions may be considered as:

3. Civil Actions can also be distinguished as:

4. Distinguishing civil actions from other kinds of actions:

WHEN AN ACTION IS COMMENCED

2. If an additional defendant is impleaded in a later pleading, it is commenced as far as the

HOW SHOULD THE RULES BE CONSTRUED

4.1 Periods for filing are as a matter of practice, strictly construed.

RULE 2 CAUSE OF ACTION

CAUSE OF ACTION DEFINED

1. The basis of an ordinary civil action is a cause of action.30

THE REQUISITES OF A CAUSE OF ACTION

DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

5. The singleness of a cause of action is determined as follows:

IF A PARTY HAS SEVERAL CAUSES OF ACTION

2. Misjoinder is not ground for a motion to dismiss.

RULE 3 PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

2. Juridical persons include:

4.1 It can also cover a corporation by estoppel54or partnership by estoppel55

WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES

CLASSIFICATION OF REAL PARTIES IN INTEREST

PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST

The following may sue in behalf of a real party in interest

1. Representatives- actions are allowed to be prosecuted / defended by a representative or by

3. It becomes compulsory when the parties to be joined are indispensable parties.92

5. The three requisites of a class suit are:

EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY PARTY

IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN

EFFECT OF DEATH OF A PARTY

DEATH/SEPARATION OF A PUBLIC OFFICER

EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

VENUE DEFINED AND DISTINGUISHED

THE RULES ON VENUE ARE NOT APPLICABLE

1. In cases where a specific rule or law provides otherwise as below illustrated:

HOW VENUE IS QUESTIONED

1. Venue may be questioned in (a) in a motion to dismiss143, or (b) in an answer by way of an

RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6- KINDS OF PLEADINGS

1. All pleadings are to be liberally construed so as to do substantial justice.149

SPECIFIC KINDS OF PLEADINGS

WHEN NEW PARTIES CAN BE BROUGHT

RULE 7 – PARTS OF A PLEADING

2.4 Every pleading is required to be dated.

3.5 An address is required for service of pleadings or judgments

DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS

3. Laws may be pleaded only if the pleading is an Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

2. Hence, a general averment of the performance or occurrence of all conditions precedent is

4. The failure to comply is an independent ground for a motion to dismiss. 223

PLEADING CAPACITY TO SUE AND TO BE SUED

HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND

HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT,