2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

AMENDED RULES OF CIVIL PROCEDURE

Substantive Law vs. Remedial law

REVIEWER Substantive Law Remedial law

As to definition
Disclaimer: The author does not guarantee an error-free Substantive law creates, Remedial law prescribes the
reviewer. Reading books and cases are highly defines and regulates rights, method of enforcing rights or
recommended. This is only to summarize everything of civil or which regulates the rights obtaining redress for their
procedure. Happy studying and God Bless. Laban lang, and duties which give rise to invasion.
Future Atty.! a cause of action.
As to creation of Vested Rights
GENERAL PRINCIPLES Substantive law creates No vested rights may attach
vested rights. or arise from remedial law.
(Calacala v. Republic, GR
Remedial law
If the rule takes away a 154415)
The branch of law which prescribes the method of enforcing
vested right, it is not
rights or obtains redress for their invasion. (People v. Moner,
procedural. If the rule If it operates as a means of
GR 202206)
creates a right such as the implementing an existing
right to appeal, it may be right then the rule deals
This prescribe the procedure for the protection and
classified as a substantive merely with procedure.
enforcement of all claims arising from the rights and duties
matter; (Fabian v. Desierto,
created by law.
GR 129742)
As to Application
Q: What is Civil Procedure?
Prospective in application. This is construed to be
A: The method of conducting a judicial proceeding to resolve
(Spouses Tirona v. Alej, GR applicable to actions
disputes involving private parties for the purpose of enforcing
129313) pending and undetermined
private rights or obtaining redress for the invasion of rights.
at the time of their passage,
and are deemed retroactive
Action and suit in the Philippines, the terms action and suit
in that sense and to that
are synonymous. (Lopez vs. Campania de Seguros (16
extent. (Calacala v.
SCRA 855 [1966])
Republic), except if it impairs
vested right.
BAR Q: What do you mean by Substantive law? And As to Origination
how do you distinguish it from Remedial law? Substantive law originates Remedial law does not
from the legislature. originate from the
Substantive law creates, defines and regulates right and legislature, but has the force
duties concerning life liberty or property, which when violated and effect of law (Alvero v.
gives rise to a cause of action. De La Rosa, GR L-286) if
not in conflict with
Example of Substantive laws: substantive law.
1. Revised Penal Code. So if you violate the RPC As to Authority of the Supreme Court
when you kill or box another person, steal another They are not embraced by The Supreme Court is
person’s property to commit theft, it will give rise to the rule-making power of the expressly empowered to
a CAUSE OF ACTION. Supreme Court. (Primicias v. promulgate procedural rules.
Ocampo, GR L-6120 (Art.VIII, Sec.5, Par.5,
What is a CAUSE OF ACTION? That refers to an Constitution)
act of omission that would constitute a violation of
substantive law. In other words, remedial law will give us the procedure of
how case are filed, tried and decided upon by the courts
2. Family Code. So if you do not give support to because for example, you will not be given support by your
your wife and/or children, that may give rise to a husband, that is a violation of a certain provision of the
cause of action. Family Code, but how will you enforce it or get support from
your husband? That is Remedial law. It gives us the
3. Civil Code procedure on how the case would be filed, tried and decided
upon.
Remedial law prescribes the methods of enforcing those
rights and obligations created by substantive law, by Other names for Remedial law is Procedural law or Adjective
providing a procedure of system for obtaining redress for the Law.
evasion of rights and violations of duties and by prescribing
rules as to how suits are filed, tried and decided by the Sources of Remedial Law:
courts. a) Rules of Court
b) BP 129
c) Special Laws
 RA 9165

1 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

 VAWC
 Family Courts Act Echegaray vs. DOJ Secretary [301 SCRA 19]
d) Supreme Court Decisions The Supreme Court said that Congress has no more power
e) Supreme Court Circulars to repeal, alter, or supplement rules concerning pleading
f) Administrative Orders practice and procedure because such power given to it by
the 1935 and 1975 Constitution has already been taken
away by the 1987 Constitution and the same has been given
Rules of Court has the Force and Effect of the Law to the Supreme Court.
 The rules of court are promulgated by SC. It has the
force and effect of law. According to the Supreme Court, it has the exclusive power
 Does SC have the power to make laws? No, but they to issue rules regarding practice, pleading and procedure,
have the power to promulgate rules for the proper but there are some experts in Remedial Law saying that the
enforcement of the substantive right of a person. power to promulgate rules regarding procedure, that power
is still being shared by the Congress because even after the
1987 Constitution, Congress was still enacting law on
Rule Making Power of Supreme Court procedure. An example of a law that was promulgated by
 SC has the rule making power under art 8 sec 5 par 5 Congress on matters of procedure is the Speedy Trial Act.
of 1987 constitution. This law was promulgated by Congress and not by the
 It has the power to promulgate rules for the practice of Supreme Court.
law. This is the basis for the enactment of the rules of
court.
Sarmiento vs. Saratan [02-05-07]
 This is also the legal basis used by the SC in
The power of the SC to promulgate rules of procedure
promulgating the Writ of Amparo, the Writ of Habeas
carries with it the power to amend and suspend the rules of
Data, the Rules of Procedure for Environmental Cases
procedure IN THE INTEREST OF JUSTICE or WHEN
including the Writ of Kalikasan, Continuing Mandamus,
COMPELLING REASONS MAY WARRANT.
Rules of Summary Procedure, and Rules on Small
Money Claims.
The Supreme Court has the power to promulgate rules, it
 It has the force and effect of the law and that is why it is
has also the power to suspend or amend the rules.
considered as remedial law.

Example:
a) Motion for Reconsideration
LIMITATIONS of the Rule Making Power of the SC (SUN)
1. The rules shall provide a Simplified and inexpensive
Under the Rules of Court, 2nd motion for
procedure for the speedy disposition of cases;
reconsideration is prohibited. You can only file one
2. The rules shall be Uniform for courts of the same
Motion for Reconsideration, asking for a
grade; and
reconsideration of a decision. A 2nd motion for
3. The rules shall NOT:
reconsideration can only be allowed by the Supreme
a. Diminish;
Court with PRIOR LEAVE of that court. As a rule, 2nd
b. Increase;
motion for reconsideration is not allowed, it can only be
c. Modify substantive rights (art 8 sec 5 par 5 of
allowed when there is prior permission to file such
1987 constitution)
motion. But look at the case of 16 cities, four Motion for
Reconsideration were filed, so that is an instance when
the Supreme Court may amend or suspend the rules of
Power of the Supreme Court to Amend and Suspend
procedure.
Procedural Rules
The Supreme Court has the sole prerogative to amend,
The basis is IN THE INTEREST OF JUSTICE. So if you
repeal, or even establish new rules for a more simplified and
want to file a 2nd or 3rd motion for reconsideration, you
inexpensive process, and the speedy disposition of cases.
need to invoke the phrase “IN THE INTEREST OF
(Neypes v. CA, GR 141524)
JUSTICE”
The Supreme Court also has the power to relax or suspend
But according to the Supreme Court in several
technical or procedural rules or to except a case from their
decisions, compliance with the rules of court is still the
operation when compelling reasons so warrant or when the
GENERAL RULE. Non-compliance is the exception.
purpose of justice requires it. What constitutes good and
The phrase “IN THE INTEREST OF JUSTICE” is not
sufficient cause is discretionary upon the courts. (Heirs of
like a magic wand that once it is invoked, the court will
Villagracia v. Equitable Banking Corp., GR 136972)
grant or suspend the procedure. Suspending the rule is
done only IN THE MOST EXCEPTIONAL
Note: Application of rules of court in courts since the rules of
CIRCUMSTANCES.
court is a procedural law; it refers only to procedures for the
enforcement of one’s right.
b) Filing of Appeal

We have learned that appeal shall be filed within 15

days. If you file beyond 15 days, your appeal will be
dismissed or denied. There are other cases where the

2 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

SC has allowed the filing of appeal beyond the 15 day resolve the issues because the SC is not a trier of
period on the reason of “IN THE INTEREST OF facts. (People v. Azarraga, GR 187117 & 187127)
JUSTICE”
NOT ABSOLUTE, Principle of Judicial Hierarchy
There are those files late and state in their pleading In several cases, the court has allowed direct invocation of
state: “It is most respectfully prayed that in the interest the Supreme Court’s original jurisdiction on the following
of justice, our appeal be granted.” The Supreme Court grounds: (C-SWINE)
denied the same because compliance with the rules is 1. When there are genuine issues of Constitutionality
still the general rule, the abandonment or non- that must be addressed at the most immediate
compliance thereof is the exception. The exception is time. (The Diocese of Bacolod v. COMELEC,
made in the most exceptional circumstances. The court GR 205728)
added that invoking the phrase in the interest of justice 2. When there are Special and important reasons
is not like a magic wand that will grant the prayer. clearly stated in the petition;
(Pilapil vs. Heirs of Briones – 02/05/07) 3. When dictated by public Welfare and the
advancement of public policy;
4. When demanded by the broader Interest of justice;
NATURE OF PHILIPPINE COURTS 5. When the challenged order were patent Nullities;
6. When analogous Exceptional and compelling
COURT, definition circumstances called for and justified the
A court is a tribunal with the authority to adjudicate legal immediate and direct handling of the case.
disputes between parties and carry out the administration of (Republic v. Caguioa, GR 174385)
justice in civil, criminal, and administrative matters in
accordance with the rule of law. DOCTRINE OF NON-INTERFERENCE / JUDICIAL
STABILITY
The system of courts that interpret and apply the law are Courts of co-equal and coordinate jurisdiction may not
collectively known as the judiciary. interfere with or pass upon each other’s orders or processes
(Lapu-lapu dev’t and Housing Corp. v. Group Management
JUDICIAL POWER Corp. GR 141407). It also bars a court from reviewing or
 Judicial power is the power to settle disputes. It is the interfering with the judgment of co-equal court over which it
power to hear and decide cases. Part of which is the has no appellate jurisdiction or power of review. (Villamor vs.
enforcement of the decision of the case. Salas, GR L-101041)
 Judicial power is divided by several courts because if
you look at the constitution, judicial power is vested in Q: Does the Doctrine of Non-Interference apply to
SC and all other courts. administrative bodies?
A: Yes. Settled is the rule that where the law provides for an
JUDGE appeal from the decisions of administrative bodies to the SC
 A judge is a person who presides over court or CA, it means that such bodies are co-equal with the RTC
proceedings, either alone or as part of a panel of in terms of rank and stature, and logically, beyond the
judges. control of the latter. Hence, the trial court cannot interfere
 The judge conducts the trial impartially and in an open with the decision of such administrative bodies. (Philippine
court. Sinter Corp. v. Cagayan Electric Power & Light co., Inc, GR
 The judge hears all the witnesses and any other 127371)
evidence presented by the parties of the case,
assesses the credibility of the parties, and then issues a
ruling on the matter at hand based on his or her CLASSIFICATION OF PHILIPPINE COURTS
interpretation of the law and his or her own personal
judgment. As to Hierarchy:
a. First level Courts
PRINCIPLE OF JUDICIAL HIERARCHY
 Where the courts have concurrent jurisdiction over a i. Municipal Trial Courts (MTC) – found in
subject matter, a case must be filed first before the Municipalities
lowest court possible having the appropriate ii. Municipal Circuit Trial Courts (MCTC) – smaller
jurisdiction, except if one can advance a special reason municipalities are combined where only one court
which would allow the party a direct resort to a higher has territorial jurisdiction over them. It may
court. comprise 2 to 4 smaller towns or municipalities.
For example in Camotes, there is Poro, Todela
2-FOLD RATIONALE of Judicial Hierarchy and San Francisco, so there is a Municipal Circuit
a. It would be an imposition upon the limited time of Trial Court of Poro, Todela and San Francisco.
the court; and iii. Municipal Trial Court in Cities (MTCC) – found in
b. It would inevitably result in a delay, intended or Cities (Cebu City/ Davao City)
otherwise, in the adjudication of cases, which in iv. Metropolitan Trial Court (MeTC) – found only in
some instances, had to be remanded or referred Metro Manila
to the lower court as the proper forum under the
rules of procedure, or as better equipped to b. Second level Court: Regional Trial Court

3 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

c. Third Level Court: a review; or one which has the power or review over the
 Court of Appeals decisions or orders of a lower court.
 Court of Tax Appeals
 Sandiganbayan Examples: Decisions of MTC will be appealed to RTC. MTC
is the original court and RTC is the appellate court. RTC can
d. Fourth Level Court: Supreme Court also be the original court and its appellate court will be the
CA. And so on.
Muslim Areas:
3. SUPERIOR COURTS vs. INFERIOR COURTS
 Sharia Court – matter pertaining to Persons,
Property and Family Relations. a. Superior Court – court which have the power of review
 Sharia Municipal Court – Municipal Trial Court or supervision over lower courts. So for example the
 Sharia District Court – Regional Trial Court RTC is superior with MTC and CA is superior to that of
 Sharia Appellate Courts RTC.

REMEMBER: b. Inferior court – those which in relation to a superior

 A Barangay is not a court. court are lower in rank and subject to review and
 NLRC is not part of the judiciary. supervision by the latter. So that it would not be
o The presiding officer called Labor Arbiter should demeaning of their part, MTC are called First level
not be called judge because the title judge is Court.
reserved to the members of the Judiciary.
4. COURT OF RECORD VS. COURTS OF NO RECORD
 Court Martial is similar to NLRC, they are part of the
Executive Branch. a. Court of Record – those courts whose proceedings
o Court Martial functions include trying soldiers in are enrolled and which are bound to keep a written
violations of the Articles of War. Soldiers have record of all trials and proceedings handled by them. All
their own court which tries crimes committed in courts now are courts of record.
relation to their service; they can be tried by this
court called “JAGO” (Judge Advocate General’s b. Court of No record
Office) which acts as Judges.
o Court Martial has CONCURRENT jurisdiction with In the Philippines, all courts are Courts of Record. What do
the civilian court. If you were charged in the Court you mean by Court of Records? It means that all
Martial, you could no longer be charged in the proceedings are recorded. Before, there were what you call
civilian courts. In the same vein, if you were as Court of No Record such as the Justice of the Peace.
charged in the civilian court, you no longer could Cases tried by this Justice of the Peace, the proceedings of
be charged in the court martial. which are not recorded. Only decisions are recorded. If there
is case, he would just say to one party that he lost and to the
other, he won. As to how he decided he is the only one who
1. COURT OF GENERAL JURISDICTION vs. COURT knows.
OF LIMITED / SPECIAL JURISDICTION (as to cases
tried) But the same procedure is not allowed anymore. When a
judge renders a decision, the same should be supported by
a. RTC is considered the COURT OF GENERAL facts and law. If a court renders a decision which basis is not
JURISDICTION as its jurisdiction is very broad. Those supported by law, it is Void.
courts which are competent to decide all types of cases
except those expressly excluded by law. 5. CONSTITUTIONAL COURT vs. STATUTORY COURT

It is stated in the Judiciary Reorganization Act BP 129 – a. Constitutional courts are those created by the
“all other cases not falling under the exclusive Constitution
jurisdiction of any other court shall be filed in RTC.” 1. Supreme Court

b. MTC is an example of a COURT OF LIMITED b. Statutory courts are those created by the legislature.
JURISDICTION because they don’t have the power to 1. Court of Appeals
try any cases but only cases those expressly provided 2. Regional Trial Court
by law. 3. Municipal Trial Court
4. Sandiganbayan
2. ORIGINAL COURT vs. APPELLATE COURTS (as to 5. Court of Tax Appeals
nature of the case) 6. Sharia Court

a. Original court – means it is where you originally file  Sandiganbayan (SB) is a constitutionally mandated
the case or where the case is commenced or instituted. court but not a constitutionally created court. The
constitution says that that there shall be an anti-graft
b. Appellate Courts - And if you are not contented with court to be called SB but the SB shall be created by
the decision, you will elevate it to an appellate court for

4 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

law. As to the existence of SB, that is mandated by the administrative agency had been created. Unlike regular and
constitution, and therefore cannot be abolished. special courts, quasi courts do not possess judicial powers.
Instead they possess and in fact, exercise what are termed
 If the court is a constitutional court, it cannot be as quasi-judicial powers.
abolished by congress because mandated by the
constitution; but may only be abolished by amendment
of constitution. A statutory court may be abolished by GENERAL PRINCIPLES OF JURISDICTION
congress.
JURISDICTION, definition
6. COURT OF LAW vs. COURT OF EQUITY Jurisdiction is the power and authority of the court to hear,
try, and decide a case. (Barangay Mayamot, Antipolo City v.
Philippine courts are both courts of law and equity. Hence, Antipolo City, GR 187349)
both legal and equitable jurisdiction is dispensed with in the
same tribunal. (U.S. vs. Tamparong, 31 Phil. 321) Jurisdiction is derived from 2 Latin terms Latin terms: juris
(law ) Dico (to speak ), “I speak by the authority of the law”.
However, equity does not apply when there is a law
applicable to a given case (Smith Bell Co. vs. Court of JURISDICTION, BOTH SUBSTATIVE AND PROCEDURAL
Appeals, 267 SCRA 530). It is availed of only in the absence
of a law and is never availed of against statutory law or  Jurisdiction over the subject matter is substantive as
judicial pronouncements (Velez vs Demetrio, G.R. No. it is conferred by the Constitution or by law;
128576, August 13, 2002).  Jurisdiction over the person is acquired by his
voluntary submission to the authority of the court or
In Art.9 NCC, if a judge could not find a law applicable to the through the exercise of its coercive processes and is
case, he cannot refuse to decide and may use the principle therefore, procedural.
of equity. That is why we say equity follows the law.  Jurisdiction over the res is obtained by actual or
constructive seizure placing the property under the
7. CIVIL COURT and CRIMINAL COURT orders of the court. (Zamora v. CA, GR 78206), and is
also procedural.
Our courts handle both civil and criminal courts.
DOCTRINE OF PRIMARY JURISDICTION
8. REGULAR COURTS The doctrine of primary jurisdiction precludes the courts from
resolving a controversy over which jurisdiction has initially
Courts authorized to engage in the general administration of been lodged with an administrative body of special
justice. These courts derive their powers from the competence. (Fajardo vs. Flores, G.R. No. 167891, January
Constitution. 15, 2010)

At the apex is the Supreme Court. Below the Supreme Court The court will not resolve a controversy involving a question
are three tiers of lower level courts that initially decide which is within the jurisdiction of administrative tribunal
controversies brought about by litigants in the first instance. especially when the question demands the exercise of sound
a. Supreme Court administrative discretion requiring a special knowledge,
b. Court of Appeals experience and services of the administrative tribunal. So, if
c. Regional Trial Court you file that in court, the court will dismiss because it is
d. Municipal Trial Court within the jurisdiction of administrative tribunal.

9. SPECIAL COURTS Read: Addition Hills Mandaluyong v. Megaworld Properties,

April 18, 2012
Tribunals that have limited jurisdiction over certain types of
cases or controversies that special courts can hear are DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
limited only to those that are specifically provided in the REMEDIES
special law creating such special courts. Outside of the It means that before a party can go to court, he should first
specific cases expressly mentioned in the provisions of the avail of all the remedies given by the administrative bodies.
statute creating the special court, these courts have no In other words, if a remedy is available in the administrative
authority to exercise any powers of adjudication. body, you have to file the case first in the administrative
a. Sandiganbayan body before you go to court. You have to exhaust all
b. Court of Tax Appeals administrative remedies in the administrative body before
c. Sharia Court you go to court.

10. QUASI JUDICIAL AGENCIES DOCTRINE OF HEIRARCHY OF COURTS

The court will not entertain direct resort to it unless the
Technically, judicial powers pertain to and are exercised only redress desired cannot be obtained in the appropriated
by courts. However, the Philippine system of government courts or where exceptional and compelling circumstances
allows administrative agencies to exercise adjudicatory justify availment of a remedy within and calling for the
powers in certain types of controversies, particularly if same exercise of primary jurisdiction.
would facilitate the attainment of the objectives for which the

5 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Although the CA or SC have jurisdiction over the petition, but c. Concurrent jurisdiction – the power of the court to try
if you file it in any of those courts, it will be dismissed not a case is being shared with other courts.
because it does not have any jurisdiction because the
remedy you are asking could be granted by the RTC. d. Delegated jurisdiction - the power of the first level
court to try cadastral and land registration cases under
You better file it at RTC. According to SC, in direct recourse certain conditions.
of the SC's jurisdiction to issue writs of certiorari, prohibition
or mandamus should be allowed only when there are special In cadastral cases and land registration, jurisdiction is
and important reasons clearly set out in the petition. supposed to be RTC, but there are certain cases
involving land titling or registration wherein the MTC
DOCTRINE OF NON-INTERFERENCE / JUDICIAL have jurisdiction. This is called delegated jurisdiction.
STABILITY
Courts of co-equal and coordinate jurisdiction may not e. Special jurisdiction – the power of the first level courts
interfere with or pass upon each other’s orders or processes to hear and decide applications for the writ of Habeas
(Lapu-lapu dev’t and Houseing Corp. v. group Management Corpus or applications for Bail in the absence of all
Corp. GR 141407). It also bars a court from reviewing or RTC judges.
interfering with the judgment of co-equal court over which it
has no appellate jurisdiction or power of review. (Villamor vs. The RTC has jurisdiction on applications of Writ of
Salas, GR L-101041) Habeas Corpus, BUT if all RTC judges are absent then
first level courts have jurisdiction.
DOCTRINE OF ADHERENCE OF JURISDICTION
Once the court acquires jurisdiction, it may not be ousted by TOTALITY OF CLAIMS PRINCIPLE
any subsequent law placing jurisdiction in another tribunal, The totality rules states that, where there are several claims
except: or causes of actions between the same or different parties,
a. When the law itself so provides or embodied in the same complaint, the amount of the demand
b. The statute is clearly intended to apply to shall be the totality of the claims in all causes of action,
actions pending before its enactment. irrespective of whether the causes of action arose out of the
same or different transactions. (BP Blg. 129, Sec.33, Par.1)
Once jurisdiction is acquired, court RETAINS it until the final
determination of the case. When is the Totality of Claims Principle applicable?

1. In actions where the jurisdiction of the court is

TYPES JURISDICTION OF COURTS dependent on the amount involved, the test of
jurisdiction shall be the aggregate sum of all the money
Original Jurisdiction Appellate Jurisdiction demands, exclusive only of interest and costs,
As to Nature irrespective of whether or not the separate claim are
Original jurisdiction is the Appellate jurisdiction is the owned by or due to different parties. If any demand is
power of the court to take power and authority for damages in a civil action, the amount there of must
judicial cognizance of a case conferred upon a superior be specifically alleged;
instituted for judicial action court to rehear and
for the first time under the determine causes which 2. Cases where there are two or more plaintiffs having
conditions prescribed by have been tried in lower separate causes of action against two or more
law. courts, the cognizance defendants joined in a complaint. (Flores v. Mallares-
which a superior court takes philipps, GR L-66620)
a case removed to it, by
appeal or writ or error, from Note: The totality rules applies under the condition that the
the decision of a lower court, causes of action in favor of the two or more plaintiffs or
or review by a superior court against the two or more defendants should arise out of the
of the final judgment or order same transaction or series of transactions and there should
of some lower courts. be a common question of law or fact.

As To Courts Which Have Such Jurisdiction BAR Question: How do you distinguish the following:
A court is one with original A court is one with appellate
jurisdiction when actions or jurisdiction when it has the JURISDICTION vs. VENUE
proceedings are originally power of review over the
filed with it. decisions or orders of a JURISDICTION VENUE
lower court. Refers to the authority or Refers to the place where
power of the court to hear the case is to be heard or
a. General jurisdiction – the power to try all cases and determine a case. tried.
except those expressly excluded by law. It is a matter of substantive It is a matter of procedural
law. law.
b. Exclusive jurisdiction – the power of the court to try a Fixed by law (BP 129) and May be conferred by the
case to the exclusion of other courts. cannot be conferred by the parties or subjected to
parties. agreement by the parties.

6 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

ERROR OF JURISDICTION vs. ERROR OF JUDGMENT there was no summons or the summons was improperly
served upon the defendant, but if the defendant files a
ERROR OF JURISDICTION ERROR OF JUDGMENT motion for extension of time to file answer then the court
Error in jurisdiction means The court has the jurisdiction acquires jurisdiction over his person with the filing of such
the court renders or to try the case but motion
assumes jurisdiction even if committed an error in the
it has no power to hear and appreciation of facts, Examples are:
decide the case. evidence, or application of  By filing an answer; or
law.  By filing a motion to dismiss, except when the
defendant also raises the issue of lack of
Remedy: File a PETITION Remedy: Ordinary Appeal to jurisdiction over his person.
FOR CERTIORARI (grave higher court
abuse of discretion). Avail of However, if the defendant filed an answer with an
special civil action in CA. affirmative defense on the ground that the court did not
acquire jurisdiction of the persons of the defendant it is not
considered a voluntary appearance because he merely
Certiorari will not be issued to cure errors by the trial court in questions it.
its appreciation of the evidence of the parties, and its
conclusions anchored on the said findings and its NOTE:
conclusions of law. As long as the court acts within its a. Filing of a motion for reconsideration and appeal is
jurisdiction, any alleged errors committed in the exercise of tantamount to voluntary submission to the jurisdiction of
its discretion will amount to nothing more than mere errors of the court.
judgment. (Julies Franchise Corporation vs. Ruiz, G.R. No. b. Any mode of appearance in court by a defendant or his
180988, August 28, 2009, 597 SCRA 463.) lawyer is equivalent to service of summons, absent any
indication that the appearance of counsel was precisely
to protest the jurisdiction of the court over the person of
ELEMENTS OF JURISDICTION defendant (Delos Santos vs. Montesa, 221 SCRA 15
[1993]).
A. JURISDICTION OVER THE PARTIES
Q: In what instances will the filing of a pleading seeking
Jurisdiction over the parties is the legal power of the court to affirmative relief NOT constitute a submission of one’s
render personal judgment against a party to an action or person to the jurisdiction of the court?
proceeding. A: In case of pleadings whose prayer is precisely for the
avoidance of the jurisdiction of the court, which only leads to
 Jurisdiction over the Plaintiff a special appearance. These pleadings are:

Jurisdiction over the person of plaintiff is acquired upon filing 1. In civil cases, motions to dismiss on the ground of
of complaint, petition or initiatory pleading and paying docket lack of jurisdiction over the person of the
or filing fees; defendant, whether or not other grounds for
dismissal are included;
This is either personally, or the duly authorized 2. In criminal cases, motions to quash a complaint on
representative who is duly equipped with a Special Power the ground of lack of jurisdiction over the person of
of Attorney to file the case. the accused;
3. Motions to quash a warrant of arrest.

 Jurisdiction over the Defendant NOTE:

 The 1st & 2nd are consequences of the fact that failure to
Jurisdiction over person of defendant is acquired through file them would constitute a waiver of the defense of
service on him of coercive process in the manner provided lack of jurisdiction over the person.
by law (summons) or his voluntary submission to the  The 3rd is a consequence of the fact that it is the very
jurisdiction of the court or tribunal (voluntary appearance). legality of the court process forcing the submission of
(ROC, Rule 14, Sec.20) the person of the accused that is the very issue in a
motion to quash a warrant of arrest.
Q: What is the effect of voluntary appearance?
A: The defendant’s voluntary appearance in the action shall B. JURISDICTION OVER THE SUBJECT MATTER
be equivalent to SERVICE OF SUMMONS. It is a waiver of
the necessity of a formal notice. An appearance in whatever General Rule: This is conferred by law, particularly BP129,
form, without explicitly objecting to the jurisdiction of the to determine whether the court where the case is filed has
court over the person, is a submission to the jurisdiction of jurisdiction over the case, it is through the allegations of the
the court over the person. complaint and the character of the relief sought.

Voluntary appearance of the defendant is not limited to Example: A case involving recovery of real
physical appearance but includes the filing of pleading, property, in order to determine whether the court
motions in court or asking remedy from the court. Even if has jurisdiction over the case filed involving that

7 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

real property, allegations as to how much is the Tijam v. Sibonghanoy April 15, 1968
assessed value of the subject property must be This case was filed in the RTC although the jurisdiction
alleged in the complaint. Because such allegation belongs to the first level court. The defendant, during the trial
will determine whether or not the court to where in the RTC, never questioned the jurisdiction of the RTC.
the case was filed has jurisdiction over the case. The defendant lost the case. He appealed the decision of the
RTC to the CA, later on the CA rendered decision. Before
Once the court acquires jurisdiction over the case, the same the finality of the decision of the CA, this time the defendant
shall remain with that court up to determination of the moved for the dismissal of the case on the ground of lack of
proceedings or final determination of the case. So the jurisdiction.
jurisdiction of the court once it attaches, the court cannot be
ousted by subsequent happenings or events. [DOCTRINE The Supreme Court denied saying defendant failed to
OF CONTINUITY OF JURISDICTION or DOCTRINE OF question the jurisdiction for fifteen years therefore he is
ADHERENCE OF JURISDICTION] estopped. The SC stated in that case; “if we were to sanction
such conduct on its part, we would in effect be declaring as
Exception: However, there are exceptional cases where the useless all the proceedings had in the present case since it
court entertains the answer as basis for the dismissal of the was commenced 15 years ago and compel the judgment
case on the ground of lack of jurisdiction of subject matter. If creditors to go up their Calvary once more. The inequity and
it is very clear in the allegation in the answer that the court unfairness of this is not only patent but revolting.”
does not have jurisdiction over the subject matter, the court
may dismiss. It is further stated, after voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late
NOTE: for the loser to question the jurisdiction or power of the court.
 Determined by the LAW IN FORCE at the time of its
institution. Once the court acquires jurisdiction, it may Lapanday Agricultural and
not be ousted by any subsequent law placing Dev’t. Corp v. Esteta 449 SCRA 240
jurisdiction in another tribunal, except The Supreme Court said the active participation of a party in
a) when the law itself so provides or a case is tantamount to recognition of that court’s jurisdiction
b) the statute is clearly intended to apply to and will bar a party from questioning the court’s jurisdiction.
actions pending before its enactment.
Soliven vs. Fastforms Phils., Inc.,
 Never acquired by consent or acquiescence of the
440 SCRA 389 [2004]
parties or by laches nor by unilateral assumption
Party assailing jurisdiction of court must raise it at the first
thereof by a tribunal.
opportunity. While an order or decision rendered without
 Does not depend on pleas or defenses of defendant in
jurisdiction is a total nullity and may be assailed at any
an answer or motion to dismiss.
stage, a party’s ACTIVE PARTICIPATION in the
proceedings, without questioning the jurisdiction until an
Q: How jurisdiction is conferred and determined?
adverse resolution is issued will bar or estop such party from
A: Conferred by the LAW IN FORCE at the time of its
attacking the court’s jurisdiction.
institution. Determined by the ALLEGATIONS in the
complaint and the CHARACTER of the relief sought.
Settled rule: a party cannot invoke the jurisdiction of the
court to secure affirmative relief against his opponent and
OBJECTIONS to Jurisdiction over the Subject Matter
after failing to obtain such relief, repudiate such jurisdiction.
When can the issue of jurisdiction over the subject matter be
raised?
A party cannot invoke the jurisdiction of the court to secure
General rule: Jurisdiction over the subject matter or nature affirmative relief against his opponent and after failing to
of the action may be challenged AT ANY STAGE of the obtain such relief, repudiate such jurisdiction (Salva vs. CA,
proceedings. 304 SCRA 632 (1999)).This includes the filing of a
counterclaim. Such practice cannot be tolerated for reasons
Jurisdiction over the subject matter cannot be waived. It of public policy (Oca vs. CA, 278 SCRA 642 [2002]).
cannot be subject to the agreement of the parties. And as a
rule, it can be raised for the first time on appeal even if such EFFECT OF ESTOPPEL ON OBJECTIONS TO
issue was not raised in the lower court. JURISDICTION

Exception: There are certain cases wherein the SC applied Heirs of Bertuldo Hinog vs. Melicor,
the principle of ESTOPPEL by laches. G.R. No. 140954, April 12, 2005
After recognizing the jurisdiction of the trial court by seeking
Note: Jurisdiction over the remedies has something to do affirmative relief in their motion to serve supplemental
with the cause of action. The remedies asked by the parties pleading upon private respondents, petitioners are effectively
to the court should have jurisdiction over such remedy. barred by estoppel from challenging the trial court’s
jurisdiction. If a party invokes the jurisdiction of a court,
he cannot thereafter challenge the court’s jurisdiction in the
same case. To rule otherwise would amount to speculating

8 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

on the fortune of litigation, which is against the policy of the deprived of his right over the property because his right over
Court. the property may be affected by the outcome of the case.

Tijam vs. Sibonghanoy Q: Can jurisdiction over the person be waived?

G.R. No. L 21450 April 15, 1968 (EXCEPTION) A: Yes, jurisdiction over the person can be waived unlike
The defense of lack of jurisdiction of the court that rendered jurisdiction over the subject matter, it can be waived such as
the questioned ruling was held to be barred by estoppel by by voluntary appearance in court.
laches. It was ruled that the lack of jurisdiction having been
raised for the first time in a motion to dismiss filed almost In fact, in one case, after a person who is not a party to a
fifteen (15) years after the questioned ruling had been case signed the compromise agreement entered into by the
rendered, such a plea may no longer be raised for being actual parties to the case, was held bound by the decision of
barred by laches. the court. [Rodriquez vs. Alikpala June 25, 1974]

-----00-----
Calimlim vs. Ramirez
G.R. No. L 34362 November 19, 1982
GO TO THE TABLE OF COURT’S JURISDICTIONS
Despite the fact that the one who benefited from the plea of
lack of jurisdiction was the one who invoked the court's
JURISDICTION OF THE RTC
jurisdiction, and who later obtained an adverse judgment
therein, we refused to apply the ruling in Sibonghanoy. The
The RTC has original and appellate jurisdiction. Original
Court accorded supremacy to the time-honored principle that
jurisdiction may be exclusive or concurrent.
the issue of jurisdiction is not lost by waiver or by estoppel.
 Those actions the subject matter of which are not
capable of pecuniary estimation

C. JURISDICTION OVER THE ISSUES Q: How can you determine whether the subject matter is
incapable of determination?
 The controverted facts of the case. To be easy, try the reverse. Is it capable of pecuniary
 Authority to try and decide the issues raised by the estimation? How would you determine that? Look at the
pleadings of the parties. prayers.
 Conferred by the PLEADINGS or EXPRESS
CONSENT of the parties. If the primary or main remedies ask are capable of pecuniary
 An issue not duly pleaded may be tried and decided if estimation, meaning it’s about money then it is not incapable
no timely objection is made by the parties, cannot be but if the prayer is not about money or damages, then it is
decided on the first time of appeal. (China trust vs. incapable of pecuniary estimation.
Turner, July 3, 2012)
 In certain cases, as in probate proceedings, jurisdiction Example:
over the issues is conferred by law. If the main action is for collection of sum of money, or if the
 The court cannot grant relief to those issues not sought main action is for damages, that is capable of pecuniary
for by the parties. However, an exception is that even if estimation.
a relief is not sought for the court may grant such
prayer if the facts alleged in the complaint are the For damages do not be misled, because sometimes the
evidence introduced in the trial. And there is a catch-all main prayer may include damages such as a case of
provision the statement “other relief and remedies declaration of nullity of contract with damages. The damage
which are just and equitable” this is important kay if nay here is just ancillary but the main action is declaration of
relief na need to grant such may be given on the nullity of contract. So, jurisdiction is with the RTC.
justification of this provision.
In declaration of nullity of the contract of sale or rescission of
contract, these are incapable of pecuniary estimation; the
D. JURISDICTION OVER THE RES OR PROPERTY IN damages here are just ancillary of the main remedy.
LITIGATION
 Actions involving title to or possession of real
RES – refers to the property either personal or real property property where the assessed value of the property
or right, status or a particular fact. exceeds 20,000 if outside Metro Manila, or if in
Metro Manila, exceeds 50,000 except Forcible
How do the court acquire jurisdiction? Entry and Unlawful Detainer.
The court acquires jurisdiction over the res by actual or
constructive seizure by the court, such a placing the property Example:
under custodia legis. A case for recovery of ownership and possession of real
property. You have a land in your province, but you have not
Once the court acquires jurisdiction over the res, the took care of it. Then, your uncle is claiming that he is the
jurisdiction over the defendant is no longer necessary. owner because he bought the land from your Lolo. What
case will you file against the person claiming your land?
BUT summons has to be served to the defendant in
compliance with the requirements of due process. So that he
would be given the opportunity to be heard before he is
9 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Recovery of ownership and possession [ACCION teach or serve as an example to other persons, so that other
REINVINDICATORIA/ ACCION PUBLICIANA] What if he is persons will not follow what the defendant did. You ask the
claiming the land for not more than 1 year? court to pay you 200,000 as moral damages for destroying
your good reputation and 100,000 for the exemplary
The case is not recovery of ownership or possession but damages plus 50,000 as attorney’s fees. The total collectible
ejectment which could be unlawful detainer or forcible entry is P350, 000. You are in cebu city. Where do you file the
[ACCION INTERDICTAL] (Jurisdiction is with MTC) case?

IF ACCION PUBLICIANA OR REINVINDICATORIA A: RTC, because pursuant to [SC administrative circular 09-
The jurisdiction of the case depends upon the assessed 94- June 14, 1994], the SC said that when the claim for
value. Assessed value is found on the tax declaration which damages is the main cause of action or one of the causes of
is based on the value of the land. The value of the land is action, the amount of such claim is considered in
determined by the Municipal assessor’s office. Assessed determining the jurisdiction of the court.
value is more or less 25% of the market value of the land.
This is the basis of the jurisdiction of the court. The rule supposed to be is damages is excluded, but if your
main cause of action or one of the causes of action is
It is necessary that you should allege the assessed value, if damages, the total amount of damages in whatever form
the plaintiff fails to allege the assessed value of the subject shall be the basis the determination of the jurisdiction of the
property, the case would be dismissed. court.

Q: What if the assessed value is lower than 20,000? TO HIGHLIGHT AND REMEMBER:
A: Jurisdiction is the MTC
Q: When can you say that the action is capable of
Note: MUST ALLEGE THE VALUE OF THE PROPERTY pecuniary estimation?
because it is fatal. If not alleged, the case may be dismissed. An action is capable of pecuniary estimation when the
Read: Supapo vs. De Jesus, April 20, 2015 and Kristal v. primary remedy or main remedy being asked is claim of
Sud, Nov. 29, 2019 money.

“EXCEPT FOR FORCIBLE ENTRY AND UNLAWFUL Example: Claim of money

DETAINER” That is capable of pecuniary estimation or when the primary
When the dispossession of the case did not reach 1year, the action is for damages. [We need to be in agreement that
aggrieved party may file an action for ejectment either for when we say damages we are referring to money. So that is
forcible entry or unlawful detainer. synonymous with collection of sum of money]

Example: To determine the jurisdiction of the court, Test of Jurisdiction

Your house/apartment rented out for P20,000 and it has is the TOTAL AMOUNT OF THE MONEY BEING ASKED.
been many years that there was no payment. You sent a When the principal remedy or prayer is not for sum of money
demand letter but after 2 month. Then, you filed a case. or damages, then the case is INCAPABLE OF PECUNIARY
What case should you file? ESTIMATION.

You should file an ejectment case in the MTC, disregard the Example: Action for specific performance.
assessed value, you disregard the unpaid rentals because You are asking the court to direct the defendant to perform
your cause of action is unlawful detainer. an act. Although the action is for specific performance, the
plaintiff may also pray for the payment of the damages. But
Problem: remember that the prayer for the payment of damages is
Someone contracted a debt with you for P250,000 but he did merely incidental because his main cause of action is
not pay so you were troubled. Now, you are asking the court specific performance.
to compel him to pay you P250,000 and because you
suffered sleepless nights, mental anguish, (basis for moral Example:
damages) you ask the court, aside from ordering the D is an architect and construction supplier, P and D agreed
defendant to pay you, 250,000 order defendant to pay that D would construct a house for the amount of 5 million. D
100,000 on top of the 250,000, as moral damages, plus has already been paid but D still failed to pay. Mr. P filed a
attorney’s fees 50,000. The total collectible is P400, 000. case for specific performance asking the court to oblige D to
You are in Cebu City. Where are going to file the case? construct the house as agreed upon by them. Considering
that Mr. P suffered sleepless nights so he asked for
A: MTC, because determining jurisdiction you have to damages but the prayer for damages is not the one primarily
exclude moral damages, attorney’s fees, etc., asked. The primary remedy is the construction of the house
or specific performance. But if Mr. P did not asked for the
Problem: construction of the house because he already had hired
Your neighbor called you names. She said you are “Whore”, someone, he only wishes to recover the 5 million with
“Concubine of my husband”, “Thick Face”. So you file a case interest, the main action is not anymore specific performance
for damages against her and you ask the court to require but for sum of money.
the defendant to pay you moral damages, in the amount of
200,000 and another damages, exemplary damages to

10 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Example of cases considered incapable of pecuniary complaint does not allege the assessed value, that is fatal as
estimation: the case might be dismissed for lack jurisdiction.
a) Action for specific performance
b) Annulment of contract  Action involving personal property – the value not more
c) Reformation of contract than P300, 000 and for Metro Manila, not more than
d) Injunction P400, 000
e) Support
f) Expropriation  Action demanding sums exclusive of interest, damages,
g) Annulment of document attorney’s fees, litigations expenses and costs.

Case: Russel v. Destell, 304 scra 739 “Exclusive of interest, damages, attorney’s fees etc.”
Sometimes a real action could be considered as an action
incapable of pecuniary estimation. A real action would now Example:
depend on the assessed value. Someone borrowed from you the amount of P300, 000
payable in 1 year. He was not able to pay and so you filed a
For real action, the basis of jurisdiction is different. It is the case for sum of money asking the court to order your friend
assessed value and where the property is located. Where do to pay the P300, 000. Aside from that, you are asking for an
you find the assessed value? It is in the back of the tax interest at the rate of 1% per month or 12% annual as
declaration. penalty. Where do you file the case?

Alternative Action MTC because the amount should be exclusive of interest,

If for example the case filed by Mr. P is to compel Mr. D to damages, attorney’s fees and litigation expenses.
construct the house OR to pay the sum of 5 million which
was already received by him? Is it incapable of capable? GOMEZ vs. MONTALBAN, March 14, 2008.
In this case, the plaintiff filed a collection case against the
If the action is in the alternative, the same is considered defendant. The principal amount was P40,000. Their
capable of pecuniary estimation. If it is capable, look at the agreement was to have an interest of 10% per month. But
total amount being asked. (Cruz v. Tan 57 Phil) because of the long period of time in which the loan was not
paid, the interest bloated to more than P70, 000 so the
Action for Replevin resulting money obligation is already P110, 000.
Replevin could be considered as a main action or at the
same time provisional remedy. Replevin is capable of Before the jurisdiction of the 1st level court is only up to
pecuniary estimation. Basis of jurisdiction is the value of the P100, 000. The defendant moved for the dismissal of the
personal property. case as it was filed in the RTC on the ground that the
principal amount is only P40,000. He argued that the
RECAP: What confers jurisdiction? remaining amount is for the interest and according to BP 129
Jurisdiction is conferred by law but to determine if the court it should be excluded for purposes of determining venue.
where the case is filed has jurisdiction over the case, you
have to read the allegation in the complaint. Determine the The SC said RTC has jurisdiction because although the
jurisdiction based on the allegation in the complaint not in principal amount is only P40,000, the interest should be
the allegation in the answer or to the motion to dismiss. included in the determination of the court’s jurisdiction
because the amount can be determined already based on
Example: their contract.
Mr. P filed a collection case against Mr. D. He asked the
court to compel Mr. D to pay his loan in the amount of If the interest in the loan is a primary and insuperable,
P400,000 but in the answer of Mr. D he denied that he has a competent to the cause of action, not incidental and already
loan in that amount. He said his remaining balance is only determinable at the time of the filing of the complaint then it
P200, 000. Considering that the case is filed in the RTC, he must be included in the complaint. In this case contractual
asks the court to dismiss the case arguing that the court has
interest is involved; the amount of the interest has to be
no jurisdiction. Is the motion to dismiss meritorious?
included in determining the jurisdiction.
No. To determine if the court which the case is filed has
jurisdiction, the allegation of the complaint must be read as it Interest has two concepts:
determines jurisdiction and not the allegation in the answer a. Contractual Interest – one that had been agreed
or the motion to quash. upon by the parties

b. Interest as a form of penalty – even without

agreement, this penalty could be asked from the
JURISDICTION OF THE MTC
court.
 Jurisdiction over partition case
 Action for maritime or admiralty jurisdiction when the
demand or claim does not exceed P300, 000 or in
MTC has jurisdiction over partition. Partition is a real action
Metro Manila, amount does not exceed P400,000.
and jurisdiction depends on the assessed value. If the

11 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

 Probate where the value of the estate does not exceed RULE 1
P300, 000 or in Metro Manila, amount does not exceed
GENERAL PROVISIONS
P400,000.

The basis for the determination of the jurisdiction of the Section 1. Title of the Rules.
estate is the gross value or the market value, NOT the These Rule shall be known and cited as the Rules of Court.
assessed value of the estate.
Section 2. In what courts applicable.
 Real actions involving recovery of ownership or These Rules shall apply in all the courts, except as
possession wherein the assessed value does not otherwise provided by the Supreme Court. (n)
exceed Php 20,000 or 50,000 (MM)
BAR Q: How do you distinguish the Court from the
Delegated jurisdiction of the MTC judge?
It is the power of the first level courts to try and hear A: The Court is the office while the judge is the officer of the
cadastral and land registration cases. Court. The Court is the organ of the government and the
judge is the person who sits on it.
a. If contested, land involved does not exceed Php
100,000.
b. If NO controversy, there is no limit as to the value Section 3. Cases governed.
of the land. These Rules shall govern the procedure to be observed in
actions, civil or criminal and special proceedings.
The decision of the MTC must NOT be appealed to the RTC,
but to the Court of Appeals because the MTC is exercising (a) A civil action is one by which a party sues another for the
jurisdiction which is supposed to be from RTC. enforcement or protection of a right, or the prevention or
redress of a wrong, (1a, R2)
Special Jurisdiction of the MTC
This pertains to the issuance of the Writ of Habeas Corpus. A civil action may either be ordinary or special. Both are
They have the power entertain these petitions in the event of governed by the rules for ordinary civil actions, subject to the
absence of all RTC judges in a province or city. specific rules prescribed for a special civil action. (n)

 Cases under the jurisdiction of the MTC which are (b) A criminal action is one by which the State prosecutes a
provided in the Rules on Summary Procedure and on person for an act or omission punishable by law. (n)
the Rule of Procedure for Small Claims Cases
(separate discussion). (c) A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact. (2a, R2)
“DEFENSE OF TENANCY”
GR: the answer of the defendant cannot dismiss the case.
Judge D:
XPN: if the defendant in his answer alleged agricultural
The Rules on Civil Procedure are not only applicable to civil
tenancy under RA 9700 amending the carp law.
cases but it may also be applicable to criminal cases such as
filing of motions.
A court does not lose jurisdiction over an ejectment case by
simple expedient of a party raising as a defense therein the
Rule 15 requires that it must contain a notice of hearing. If it
alleged existence of a tenancy relationship between the
does not contain a notice of hearing, it is considered as a
parties. It is the duty of the court to receive evidence to
mere scrap of paper and is bound to the garbage, meaning
determine the veracity of the allegations of tenancy. While it
the court will not entertain it. This certain rule is applicable to
is true that the jurisdiction of the court in a suit for ejectment
all cases.
is determined by the allegations in the complaint, yet where
tenancy is averred as a defense and upon hearing is shown
to be the real issue, the court should dismiss the case or
Cause of action vs. Right of Action
want of jurisdiction.
 Cause of action - refers to the act or omission of a
The mere assertion of tenancy as a defense does not ipso
person which violates a substantive law.
facto deprive the court of jurisdiction over an ejectment case.
(Ofelada vs Andal January 26, 2015)
 Right of action - refers to the right of a party, whose
right has been violated, to file a case. So when you say,
If there is an allegation of tenancy, what the court should do
right of action that presupposes he is a cause of action.
is refer it to the DAR and require the DAR to investigate to
prove that whether it is true that there was an agricultural
Action - refers to a case. Like when we say a civil case or
tenancy relationship exists between the parties.
civil action. It is one where a person files a case or sues
--00--
another for the protection of his right.
Cases (Judge D)
Lumokso case; Bpi v. yujico july 22, 2015; Padlan vs. march
20, 2019; Pugete v. imbudo july 1, 2003; Kinaguran vs. CA
aug.24, 2007; Santi v. Claraval feb.22, 2010.

12 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

KINDS OF CASES OR ACTIONS: 15 days and notice of appeal

days and aside from a notice
suffices. of appeal, record on appeal
1) Ordinary Civil Actions is required.
One by which a party sues another for the enforcement or As to Cause of Action
protection of a right, or the prevention or redress of a wrong. It is based on a cause of It is not based on a cause of
action. action except habeas
2) Special Civil Actions corpus.
One by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong,
is governed by the rules on ordinary civil action and at the Kinds of Civil Actions (As to Cause)
same time subject to specific rules prescribed under Rule
62-71. 1. Personal Actions

Examples: interpleader, declaratory relief, certiorari,  Seeks the recovery of personal property, enforcement
prohibition, mandamus, quo warranto, eminent domain, of a contract or the recovery of damages.
foreclosure or mortgage, partition, forcible entry, unlawful
detainer and contempt. Venue: place where defendant or any of defendants resides
or may be found, or where plaintiffs or any of plaintiffs
3) Criminal Actions resides, at the election of plaintiff.
One by which the State prosecutes a person for an act or
omission punishable by law.  Transitory may be filed in any place or places where
 Cause of action – refers to the act or omission parties may reside.
which violates a right of another. - Transitory action, one the venue of which is
 Crime – refers to an act or omission which is in dependent generally upon the residence of the
violation of a penal law. parties regardless of where the cause of action
arose.
4) Special Proceedings
A remedy by which a party seeks to establish a status, a 2. Real Actions
right or a particular fact.
 Seeks the recovery of real property, or an action
affecting title to property or for recovery of possession,
Ordinary Action Special Proceeding or for partition, or condemnation of, or foreclosure of
As to Nature mortgage on real property.
Generally adversarial in Generally, there is no
nature. There are definite definite adverse party Venue: province or city where property or any part thereof
parties – plaintiff vs. because it is directed lies.
defendant. against the whole world.
Spec. Pro. are either rem or  Local may be filed in a fixed place, where property or
quasi in rem any part thereof lies.
As to Purpose - Local action, one brought in the place where the
To protect or enforce a right To establish a status, a right, subject property or a part thereof is located, in the
or prevent or redress a or a particular fact. absence of agreement to the contrary.
wrong.
As to Governing Rules 3. Mixed Actions
It is governed by Rules of It is governed by special
ordinary civil actions. rules supplemented by rules  Involves recovery of ownership or possession of real
for ordinary civil actions. property and at the same time recover sum of money
As to Court with Jurisdiction by way of damages.
It is heard by courts of It is heard by courts of
general jurisdiction. limited jurisdiction. Examples: accion publiciana with damages, forcible entry
As to How Initiated with damages. It is a mixture of a real and person action. It
Initiated by a pleading and Initiated by means of petition pertains to some degree to both real and personal.
parties respond through an and parties respond by
answer after being served means of an opposition after Kinds of Civil Actions (As to Object) / As to Binding
with summons. notice and publication are Effect of the Decision
made.
1. In Personam
As to Applicability of Pleadings
Parties are generally Rules on pleadings not
 Action against a person on the basis of his personal
allowed to file answer, generally applicable.
liability, or one affecting the parties alone, not the whole
counterclaim, cross-claim,
world, and the judgment thereon is binding only against
and third-party claim.
the parties properly impleaded.
As to Appeal (VERIFY SA NEW RULES)
The period to appeal is only The period to appeal is 30

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Examples: forcible entry or unlawful detainer, recover Example: Foreclosure of mortgage. When you file a
ownership of land, recover damages, specific performance. foreclosure of mortgage, there is a defendant. You file a
Illustrative Example: EJECTMENT case against the defendant, but the purpose is for the
disposition of his property. To divest him of his title or
In ejectment, it involves possession over real property. ownership over the property, you file a case against him but
the purpose is to have his property. That is what we call
Q: What kind of decision is it as to subject matter? action quasi in rem.
A: Real Action.

Q: What kind of decision as to binding effect? Action in Action in Rem Action Quasi in
A: Action in Personam. It is an action in personam because Personam Rem
the decision of an ejectment case is binding only against the As to whom Directed
parties and their successors-in-interest. Directed against a Directed against Directed against
particular person. the thing itself. particular
So, an ejectment case is a real action but it is an action in persons.
personam. An action in personam, action in rem does not As to the Effect in Judgment
have anything to do with real action or personal action. A Judgment is Judgment is Judgment is I
personal action could be an action in rem. Don’t be binding only upon binding upon the binding only upon
confused. That is the reason why there is a need to classify parties impleaded whole world. parties who joined
the case into real or personal action. Some authors would or their the action.
say that such case is a mixed action because others would successors-in-
file a real action and then acts for damages so they call it interest.
mixed. As to the Purpose of the Action
An action to A proceeding to A proceeding
2. In Rem impose a determine the which deals with
responsibility or state or condition the status,
 Those decisions which are binding against the whole liability upon a of a thing. ownership, or
world. It means where you go, they all have to honor person directly. liability of a
that decision. particular property
 A real action may at the same time be an action in but which are
personam and not necessarily an action in rem. intended to
operate on these
In rem to determine title to land, and the object of the suit is questions only as
to bar indifferently all who might be minded to make an between the
objection against the right sought to be established. Seeks particular parties
judgment with respect thereto against the whole world. to the
proceedings and
In personam concerns only the right, title and interest of the not to ascertain or
parties to the land, not the title of the land against the whole cut-off the rights
world. or interests of all
possible
Example: Petition for change of name. If you file for a claimants.
petition for change of surname from Juan dela Cruz to Juan Examples
Duterte, even if you go to America, you are a Duterte. They
Action for specific Probate Action for
are bound by that decision because that is an action in rem.
performance; proceeding; partition; action to
action for breach cadastral foreclose real
3. Quasi in rem
of contract proceeding. estate mortgage.
 Differs from true action in rem, individual is named as As to Jurisdiction of the Person of the defendant
defendant, and purpose of proceeding is to subject his Jurisdiction over Jurisdiction over the person of the
interest therein to the obligation or lien burdening the the person of the defendant is not required as long as
property. defendant is jurisdiction over the res is acquired.
 Neither strictly in personam nor in rem but it is an action required.
in personam where a res is affected by the decision. (Domagas v. Jansan, GR 158407, Jan. 17, 2005)
 An action which is directed over a particular person but
the purpose of the action is the sale or disposition of the
defendant's property or subject the property to a lien or Q: Can an action in personam be converted into an
encumbrance. action in rem or quasi in rem?
A: Under the old rule, an action in personam may be
Examples: partition, accounting under Rule 69 actions converted in action in rem or quasi in rem through
essentially for the purpose of affecting defendants interest in preliminary attachment by attaching the property of the
the property and not to render a judgment against him defendant.
(Valmonte vs. CA, 252 SCRA 92 [1996]).

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

However, under the new rule, it is not anymore necessary. 2. Land

Petitioner may now serve summons through publication 3. Cadastral
where the defendant is designated as an unknown owner, of 4. Naturalization
the like, or whenever his whereabouts are unknown and 5. Insolvency
cannot be ascertained by diligent inquiry to enable the court 6. Other cases herein provided for
to acquired jurisdiction over the person of the defendant,
regardless of the nature of the action. (Santos v. PNOC Except:
Exploration, GR 170943, Sept.23, 2008) 1. By analogy
2. In suppletory character
Q: Can there be an action in rem which is personal 3. Whenever practicable or convenient
action?
A: Yes. The probate of a will wherein the estate consists Administrative case – does not also apply because they
only of personal properties is an action in rem which is at the have their own rules but the Rules of Court may be applied
same time a personal action. The probate of the will is a by them suppletorily.
proceeding in rem. It is also a personal action because it
does not involve title or possession of real property.
Section 5. Commencement of action.
Q: Why is it important to know whether a case is a real A civil action is commenced by the filing of the original
action or personal action? complaint in court. If an additional defendant is impleaded in
A: It’s because it will affect venue. A real action, an action a later pleading, the action is commenced with regard to him
which involves title, possession or any interest over real on the date of the filing of such later pleading, irrespective of
property has to be filed in the place where the property or whether the motion for its admission, if necessary, is denied
any portion thereof is located whereas to personal action, is by the court. (6a)
to be filed at the residence of the plaintiff or defendant at the
option of the plaintiff. How commenced?
A civil action is commenced by the filing of the original
Q: Why is it important whether a case is an action in rem complaint in court and payment of corresponding docket
or action in personam? fees.
A: It’s because in an action in rem, jurisdiction over the
person of the defendant is not required. Note: Mere filing is NOT sufficient. The filing must include
the payment of the exact docket fees. So, payment AND
The service of summons is for the compliance of due filing of the corresponding docket fees.
process and not for the purpose of acquiring jurisdiction over
his person summons can be served on him through Q: Why is it important to know that an action or
publication. It’s the same with action quasi in rem because complaint considered filed in court?
action quasi in rem is similar to an action in rem. a) The filing and payment of docket fees stop the running
of prescriptive period.
Whereas in action in personam, the summons has to be b) Upon filing of the case, the court acquires jurisdiction
served on the person of the defendant or through substituted over the plaintiff.
service. As a rule, it can't be served through publication.
How is it filed?
Independent Civil Actions Plaintiff may file:
They may proceed independently of the criminal action and a) Personally or
shall require only a preponderance of evidence. ICA are b) Through a duly authorized representative, fully
those provided in Articles 32, 33, 34, and 2176 of the Civil equipped with a Special Power of Attorney.
Code.
If the plaintiff is staying abroad the Special Power
Art. 33, Civil Code. In cases of defamation, fraud, and of Attorney must have a certification from the
physical injuries a civil action for damages, entirely separate Philippine Embassy otherwise its useless.
and distinct from the criminal action, may be brought by the
injured party. Such civil action shall proceed independently ------00------
of the criminal prosecution, and shall require only a
preponderance of evidence. Prescription vs. Laches

Prescription refers to the period given by law within which a

Section 4. In what case not applicable. certain action should be filed. Latches refer to the
These Rules shall not apply to election cases, land unexplained or unreasonable delay in the filing of an action
registration, cadastral, naturalization and insolvency even if the prescriptive period has not yet expired.
proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever ------00------
practicable and convenient. (R143a) How is filing made?
The filing of these cases may be done through:
Rules of Court NOT applicable: (NICOLE) a) The clerk of court; or
1. Election cases b) Registered mail

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c) Ordinary mail
d) Accredited Courier It shall be interpreted liberally.
e) Electronic mail
Reasons:
Ordinary Mail Registered Mail  To promote justice.
Date of actual receipt is the Date of mailing is the date of  To promote their objective of securing a just,
date of filing. filing. speedy and inexpensive disposition.

Some cases which do NOT require payment of docket fees:

a. Petition for issuance of Writ of Habeas Corpus CIVIL ACTIONS
b. Petition for Writ or Amparo. ORDINARY CIVIL ACTIONS

Q: What will happen if the corresponding docket fees RULE 2

are not paid?
CAUSE OF ACTION
A: The case is deemed not filed because the corresponding
docket fees must be filed (Manchester Development
Corporation vs CA, May 1, 1987). However, the case of Section 1. Ordinary civil action, basis of.
Manchester has been modified by the case of Sun Every ordinary civil action must be based on a cause of
Insurance Office vs Asuncion. action. (n)

The Supreme Court held that the trial court may, if the  When you file a case, there must be a cause of action.
corresponding docket fees are not paid, give the plaintiff time  When you file a case without cause of action, that case
to pay the docket fees instead of dismissing the case, could be dismissed on the ground of failure to state a
provided that the period given to the plaintiff to pay the cause of action.
docket fees should be within the prescriptive period.
Failure to state a cause of action vs. Lack of cause of
Non-payment of docket fees cannot be a ground for action
automatic dismissal of the case. The court may give
reasonable period to pay the same. Read: [Heirs of Renoso, Example:
Sr. vs Court of Appeals 654 scra 1, July 10, 2011] You filed a case against your neighbor who borrowed money
from you (400, 000.00) and failed to pay the same. Do you
Basis of the court in determining docket fees have a cause of action? Yes.

a. Personal Actions - All the figures prayed for including But you did not state in the complaint that the amount was
damages is the basis of the court for purposes of already due. Your lawyer failed to state that the debt was
payment of the docket fees. already due. What will happen now to your complaint? Your
complaint will be dismissed, not on the ground of lack of
As we have earlier discussed under jurisdiction, for cause of action because you have a cause of action but for
collection of sum of money, the basis is the principal failure to state a cause of action.
amount. But for the payment of docket fees, all the
damages like exemplary, moral damages, atty.’s fees, Failure to state a cause of action has something to do with
all figures are the basis. the allegations – the insufficiency in the allegations. There
must be a cause of action and that cause of action must be
b. Real Actions - The basis is the MARKET VALUE not stated in the complaint. Again, failure to state a cause of
the assessed value of the property. If there be damages action is a ground for dismissal. Every action must be based
asked for then the basis is the market value including on a cause of action.
the damages.

Commencement of Action on Small Claims Section 2. Cause of action, defined.

A small claims action is commenced by: A cause of action is the act or omission by which a party
1) Filing with the court an accomplished and verified violates a right of another. (n)
Statement of Claim (Form 1-SCC) in duplicate;
2) Accompanied by a Certification Against Forum Cause of Action
Shopping, Splitting a Single Cause of Action, and Is the act or omission by which a party violates a right of
Multiplicity of Suits (Form 1-A-SCC); and another.
3) 2 duly certified photocopies of the actionable
document/s subject of the claim, as well as the Elements: (ROAD)
affidavits of witness and other evidence to support a) Right, the plaintiff must have a right.
the claim.
In civil actions, there are rights violated. But in special
Section 6. Construction. proceedings, there is no right because the petitioner is
These Rules shall be liberally construed in order to promote yet to establish a right. He is asking the court to
their objective of securing a just, speedy and inexpensive establish a right. Now, you ask where do you get such
disposition of every action and proceeding. (2a) legal right? The source is the substantive law.

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complaint furnish sufficient basis on which it can be

Examples of substantive law are Family Code, Revised maintained, it should not be dismissed regardless of the
Penal Code, Civil Code etc. defenses that may be presented by defendants. (AC
b) Obligation, the correlative obligation of the defendant Enterprise vs. Frabelle Properties Corp., G.R. No. 166744,
to respect that right. November 2, 2006.)
c) Act or omission, of the defendant in violation of said
legal right. If the elements of a cause of action do not exist, the
d) Damage, The act or omission resulting in damage on complaint becomes vulnerable to a motion to dismiss (or
the part of the plaintiff. affirmative defense) on the ground of failure to state a
cause of action. A defendant who moves to dismiss the
Case: china bank v. CA compliant on the ground of failure to state a cause of action
hypothetically admits all the averments thereof. The
Sometimes, there are acts or omissions which do not result hypothetical admission extends to the relevant and material
in damage. That’s what we called, damnum absque injuria. facts well pleaded in the complaint and inference fairly
deductible therefrom. (Ceroferr Realty Corp. v. CA, GR No.
What is damnum absque injuria? Damage without injury. 139539, Feb. 5, 2002)
That’s wrong, you do not answer that way. You are merely
translating it into English. The dismissal based on a failure to state a cause of
action does NOT bar the subsequent re-filing of the
Damnum absque injuria – means the legitimate exercise of complaint.
a person’s right even if it causes damage or loss to another Dismissal of the complaint for failure to state a cause of
does not automatically result in an actionable injury. action is one without prejudice. It does not bar the
subsequent re-filing of the complaint.
Cases on Damnum Absque Injuria:
 Amonoy v. Gutierrez February 15, 2001
 Nala v. Cabansag June 13, 2008 Failure to State Cause of Lack of Cause of Action
 Diaz vs. davao light april. 3, 2007 Action
As to how it is Determined
Right of Action vs. Causes of Action It can be determined only It can be resolved only on
from the allegations in the the basis of the evidence he
Right of Action – is the right to commence and prosecute initiatory pleading and not has presented in support of
an action to obtain the relief sought. from the evidentiary or other his claim.
matter aliunde.
Elements: As to Applicability
1. Existence of a Cause of action; There is failure to state a There is lack of cause of
2. Performance of all Conditions precedent to the cause of action where the action where the evidence
bringing of the action; and complaint does not allege a does not sustain the cause
3. Right to bring and maintain the action must be in sufficient cause of action. of action allege, or
the Person instituting it. insufficiency of evidence.
As to when it may be Raised
Cause of Action Right of Action The ground of failure to state The ground of lack of cause
Reason for bringing an Remedy for bringing an a cause of action is raised of action is raised in a
action. action. as an affirmative defense demurrer to evidence under
Formal statement of the The remedial right to litigate under the new amendment. Rule 33 after the plaintiff has
operative facts that give rise because of the operative rested his case.
to remedial rights. facts As to whether Evidentiary matters are evaluated or not
Matter of procedure and is Matter of right and depends It does not concern itself It arises precisely because
governed by the pleadings on substantive law. with the truth and falsity of the judge has determined
filed by the parties. the allegations in the the truth and falsity of the
Not affected by affirmative Affected by affirmative pleading. allegations and has found
defenses (fraud, defenses. the evidence wanting.
prescription, estoppels, etc.)
Test of Sufficiency of Cause of Action
How to determine cause of action by the FACTS ALLEGED
FAILURE to State a Cause of Action in the complaint?

The fundamental test for failure to state a cause of action is Only issue: ADMITTING such alleged facts TO BE TRUE,
whether, admitting the veracity of what appears on the face may the court render a VALID JUDGMENT in accordance
and within the four corners of the complaint, plaintiff is with the prayer in the complaint?
entitled to the relief prayed for. Stated otherwise, may the
court render a valid judgment upon the facts alleged therein? In determining whether the complaint states a cause of
action, the ANNEXES ATTACHED to the complaint may be
Indeed, the inquiry is into the SUFFICIENCY, not the considered, they being part of the complaint.
veracity of the material allegations. If the allegations in the

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

also ask for attorney’s fees because you can’t go to court

without hiring a lawyer. You should only file one case.

Section 3. One suit for a single cause of action.***** In the event, you file a case for the collection of the 6 mos.
A party may not institute more than one suit for a single back rentals and then you will also file another case for the
cause of action. (3a) interest, and you will also file another case for attorney’s
fees. Is that allowed? NO. That’s what we call splitting a
Judge D cause of action. You should only file one case and in that
As a rule, one cause of action could only rise to one case. complaint you ask the court to give you all good remedies.
You cannot file two cases or three cases just for a single
cause of action. (Do not confuse cause of action with Example:
remedy.) For the collection of sum of money, someone owed you
400,000.00. Can you file a case for the collection of the 400,
One wrong act will give rise to a single cause of action and 000.00 and then another case for the collection of the
would warrant one filing of a compliant. (Chua v. Metro, Jan. interest? You also file a case for moral damages. And to set
19, 2009) an example to others so they may pay their obligations on
time, you also ask the court in a separate case for exemplary
SC: you look at whether if there is only act or omission that damages. Is this allowed?
would only give rise to cause of action so there should only
be one case to be filed. The true rule to determine whether NO. That is what you call splitting a cause of action. Under
the party has only one case of action, whether an entire the rules, that is not allowed.
amount arise from the same act or contract OR the several
part arise from distinct acts or different acts or contracts they Q: What will happen if you file two or more cases over a
give rise to separate cause of action for which separate single cause of action?
cause action can be several complaint or cases. (Marilag A: The others will be dismissed. Splitting a cause of action
case) may possibly result in the dismissal of the other cases on the
ground of either res judicata or litis pendentia.
GR: A contract will give rise to only a single cause of action
even if it contains several provisions because a contract may Litis Pendentia vs. Res Judicata
only be violated once. (quiogi v. bautista , feb,28, 1962)
If all the cases filed, or if all these actions over a single
XPN: when a contract provides for several cause of action are pending, then the ground for dismissal is
stipulations/obligations to be performed at different times. Litis Pendentia; whereas if one of these or some of these
Such as a loan payable by installment, each obligation not are already decided or terminated, then it’s Res Judicata.
performed will give rise to distinct cause of action. This rule is also applicable in counter claims and cross
claims.
Example: P gave loan to D.D fails to pay P the first
installment, P may now file a case against D. the 2nd Remedy of Defendant
complaint will now become due D then still failed to pay. So If you were the defendant and two or more cases over a
another cause of action will arise. P can file another single cause of action is filed against you - file a motion to
complaint. And so on. TN that if P fails to file an action if the dismiss or file an answer and alleged as one of the
first installment was due and same sa 2nd and waited for the grounds for the dismissal of the case, litis pendentia or res
2nd to be due. Then all the installments not paid will be judicata.
included in one complaint. OW, the rest will be barred (bpi v.
costcuella, hjune 27, 2006) Usually the actions to be dismissed are those filed later. And
the first case will be left. But it does not necessarily follow
XPN TO XPN: when a contract is a contains several that the second or subsequent case will be dismissed, the
obligations that is performed in different times, however, if first case may also be the one dismissed.
the defendant would manifest his refusal to perfume the
entire contract then the entire contract will be due and Breach of Contract
demandable, can file one case for such. (Luzon v. Manila General Rule: Breach of contract as a rule, will give rise to
Gas Corp, Nov. 8, 1930) only one case or single cause of action. For one contract,
one case may be filed. The reason is as a rule, a contract
 Joseph vs. Bautista Feb.23, 1985 could only be violated once even if it contains several
stipulations.
Example:
In ejectment, there is a tenant, renting in your house, he Example:
failed to pay the rents for 6 mos. despite demands. What is You entered into a contract to construct a house, if it is
your cause of action? Unlawful detainer. violated you can only file one complaint-either for breach of
contract or specific performance.
So what do you want to do with that tenant? You want to
eject him and to make him pay the back rentals. And Exceptions:
because you needed to get a lawyer for that case, you will a) In a contract which provides several stipulations to be
performed at different times, violation of such

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stipulations gives rise to as many causes of action as a) When the contract contains stipulations that said
there are violations. contract is to be performed periodically such as
installments. Each failure to pay an installment will
It’s possible to have a contract that may give rise to constitute one cause of action. If you already filed a
divisible independent obligations or contracts which can case, you may file a supplemental complaint. But when
be performed on an installment basis. haven’t filed a case, and the later installment falls due,
you cannot file a complaint as there are installments
Example: unpaid but you are to file one complaint.
You borrowed five million from a bank, in a contract of loan.
Usually the debtor pays in installment. That contract of loan b) And when the defendant told you he is not going to
is capable of divisible independent obligations. The five comply the entire obligation arguing for example that
million will be paid in ten months, so your monthly due is his signature in the contract was forged. Then you can
500,000.00 a month. Failure to pay one installment may give file already a complaint for the entire contract.
rise to one cause of action and in the second month you also
failed to pay, that’s another case, such that when you fail to
pay the ten installments, there could be ten cases. That is an Section 4. Splitting a single cause of action; effect of. *****
exception to the rule. If two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment upon the
We know that for one contract, only one case should be merits in any one is available as a ground for the dismissal
filed. By way of exception, if a contract contains stipulations of the others. (4a)
or agreement that can be performed at different times, such
stipulation or the performance of an act, will give rise to a
cause of action. For every failure to pay its installment, will Splitting of Causes of Action
give rise to a cause of action. It is the act of instituting two or more suits for the same
causes of action. It is the act of dividing a single cause of
But take note, according to the Supreme Court, when the action, claim, or demand into two or more parts, and bringing
second installment falls due and you have not yet filed a suit for one of such part only, intending to reserve the rest for
case for the first installment, you cannot file anymore another separate action. (Regalado)
another case for the first installment, the cause of action
for the first installment should be included in the second Reasons:
installment. All installments which have matured or due at 1. To avoid multiplicity of suits;
the time of the filing of the case must be included as one 2. To minimize expenses, inconvenience and
cause of action in one complaint. Otherwise the same harassment.
would be barred.
Effects of Splitting a Single Cause of Action
I repeat this is the exception, where a contract is to be If two or more suits are instituted for a single cause of action,
performed periodically, as an example by installment, each the filing of one (litis pendentia or forum shopping) or a
failure to pay an installment constitutes a cause of action judgment upon the merits in one (res judicata) shall be a
and can be the subject of separate suit as the installment ground for the dismissal of the other. As to which action is to
falls due. However, if at the time of the bringing of the suit, be dismissed on the ground of litis pendentia, such
several installments are already due, those that are already determination would lie within the discretion of the court and
due must be integrated in the later installment. And the same based on the prevailing circumstances of the case.
will just constitute one cause of action if not included the
same will be barred. (Larena v. Villanueva, 53 Phils. 923) Note: Splitting of cause of action is prohibited but joinder of
causes of action is allowed.
b) If the contract is to be performed periodically such as in
installment, and the defendant has already manifested Example: Contract of loan
his intention not to comply the entire contract, the D nangutang ni P. 500k with 2% monthly interest. P filed a
plaintiff can file an action for the entire contract. And the collection case against D for the principal amount then filed
violation to be considered- total. another complaint sa interest then another complaint sa
atty’s fees and damages. how many causes of action ni P?
Even if the contract is divisible in its performance and one lang dapat kay arising from one contract. Prayer,
the future periodic deliveries or performance are not yet required to pay the principal amount, interest and atty’s fees
due but the obligor has manifested his refusal to comply and damages.
with his future periodic obligations the contract can be
considered as totally breached. Hence, the plaintiff can Example: Contract of Lease
file only one complaint for damages. (Blossom & Co. Ang lessee wla na ka bayad. So u want him to pay the rental
vs. Manila Gas Corp. 55 Phil 226.) arrears so wla ni tuman wla ni biya so u filed a ejectment
case, unlawful detainer. After filing the case asking the
TAKE NOTE AGAIN! defendant to vacate, u filed recovery for rental arrears. Then
ni file nsad kag damages, then that is splitting cause of
General rule: One contract will give rise to one cause of action. Dapat one complaint cause aring only from one case
action. of action.
Exception:

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Single act or omission may give rise to two or more (c) Where the causes of action are between the same
remedies but the plaintiff must only file one cause of parties but pertain to different venues or jurisdictions, the
action. joinder may be allowed in the Regional Trial Court provided
Example: one of the causes of action falls within the jurisdiction of said
D obtained loan kay C, 1m. C required him to acquire a real court and the venue lies therein; and
estate mortgage against C. then C required to get postdated
checks. If dli kabayad si D. collection case, foreclosure of (d) Where the claims in all the causes action are principally
real estate mortage, violation BP 22. for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction. (5a)
He cannot file all these 3 cases, only one. He will choose
either of the 3 remedies. Availement of one will exclude the  Joinder of causes of action is allowed. It presupposes
others. that the plaintiff has two or more cases that can be filed
against the defendant/s and these two or more causes
Example: of action can be joined, can be alleged in just one
F obtained a loan from C in the amount of 1M secured by a complaint but subject to the rules under Section 5 of
REM payable in one year. Despite demands F failed to pay. Rule 2 and under Section 6 of Rule 3.
C filed for complaint of judicial foreclosure to the court and
got a favorable decision. Before F got the copy of the Example:
decision the son S (F’s son) agreed with C to pay the Mr. D borrowed money from Mr. P in the amount of
obligation of F so S paid 600k and executed promissory note P500,000 payable in 1 year w/ 2% monthly interest. After 5
sa remaining the balance. S failed to pay the remaining months, he borrowed again from Mr. P an additional
balance. C filed a collecting case against S. then S raised P600,000 w/ 2% monthly interest. So there now two debts
the defense of res judicata because there was already a incurred. After 2 years, Mr. D still failed to pay. Question:
prior foreclosure case filed by C against F. Is the defense How many cases may Mr. P file against Mr. D?
meritorious?
Answer: 2 cases may be filed against Mr. D because he has
SC: yes, a loan contract secured by a REM the creditor has 2 causes of actions. However, Sec. 5 Rule 2 of the Rules of
only one case of action against the debtor mortgagor that is Court in order to avoid multiplicity of suits, the Rules of Court
to recover the loan and the debt thru the filing of personal allow joinder of causes of action. In other words, Mr. P may
action for collection of sum of money OR to file a real action (not mandatory but merely permissive, can file 2 separate
to foreclose the REM of property. complaint) join his causes of action against Mr. D. Mr. P may
file just one complaint against Mr. D alleging these 2 causes
These two remedies are alternative not cumulative so each of action subject to the ff rules.
remedy is complete by itself. If the creditor chose to
foreclose theREM then, according to the SC, he waives the P likewise want to recover real property with assessed value
action for collection of sum of money, except when the na P19,000 ni D. cause of action ni P kay na bahaw na lapas
proceeds of the mortgage property is insufficient to pay off 1 year. He can file accion publicianna (bahaw na ejectment
the laon. In which case, there could be deficiency, the case, more than 1 year, recovery of possession) so MTC ni.
creditor would be allowed to recover the deficient after Katung isa katung debt RTC toh, naa lain case na MTC
deducting the bid price or the proceeds of the mortgage nsad. Pwede ba e joint ni P sa collection of sum of money? If
property. (Marilag v. Martinez july 22, 2015) pwede, asa?

 Prohibition in the splitting of cause of action this rule Yes, he can join the cause of action of accion publicina on
applies to counter-claim and cross claim (Marsical v. the ground of Sec.5 Rule 2. So asa e file? Filed in the RTC.
CA, 311 scra 51)
The rule “Where the causes of action are between the same
Effect of splitting of a single cause of action: Dismissal of parties but pertain to different venues or jurisdictions, the
either case on the ground of litis pendentia or res judicata, or joinder may be allowed in the Regional Trial Court provided
the succeeding cases may also be dismissed on violation one of the causes of action falls within the jurisdiction of said
forum shopping. (Mora v. Kinan Nov. 29, 2017) court and the venue lies therein”

Suppose one of the cause of P, it is still within the MTC pro

Section 5. Joinder of causes of action. ***** unlawful detainer pro lahi sya, pwede e join? No. Unlawful
A party may in one pleading assert, in the alternative or detainer is an ejectment case, the joinder shall not include
otherwise, as many causes of action as he may have against special civil actions or actions governed by special rules.
an opposing party, subject to the following conditions:
What if puro money claims? Under par. D Where the claims
(a) The party joining the causes of action shall comply with in all the causes’ action are principally for recovery of
the rules on joinder of parties; money, the aggregate amount claimed shall be the test of
jurisdiction, this is the TOTALITY RULE.
(b) The joinder shall not include special civil actions or
actions governed by special rules; D obtained a loan to P of 500k. on the same occasion also
gave a loan to B brother of D. later, both D and B failed to
pay. May P join just in one complaint his causes of action

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Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

against both? No, because under par.a The party joining the To comply with the rule, the case should be filed in RTC
causes of action shall comply with the rules on joinder of Manila. That is allowed because there is no more violation
parties, read sec.6 rule 3. So allowed a joinder of parties as to jurisdiction and as to venue. There is no violation as to
either as plaintiff or defendant provided the causes of action inclusion of an action which is governed by special civil
arise out of the same contract or transaction. Nya kaning action.
transaction kay mean contract or incident. There must be
common question of law and fact, if joinder of parties. 3) If all the causes action are principally for recovery of
money, the aggregate amount claimed shall be the
Joinder causes of action and joinder of parties. test of jurisdiction.
Example:
Bus full of passengers or jeepney. Now the passenger bus Example:
fell into a cliff because its driver fell asleep, and all the 40 1st Debt - P200,000 (cognizable in the MTC)
passengers were injuried. So each pasareho nay individual 2nd Debt - P200, 000 (cognizable in the MTC)
contract of carriage. Dba, one contract one single cause of
action. So here pila ka complaint ma file on the basis of Question: If you are going to join the two cases, where
breach of contract of carriage? 40. What if all agreed na mu should you file the case?
file sila ug one complaint against the driver and operator, Answer: RTC, because all the causes of action is for the
pwede sya. So nay syay joined of parties and it is necessary sum of money, the total amount shall determine jurisdiction.
that it must arise out of the same contract or incident. In this Instead of filing it in MTC, file it in the RTC.
case, naa sya. Nay common law? Yes, law on Oblicon.
That is the so called “TOTALITY RULE”. The total amount
RULES IN JOINDER OF CAUSES OF ACTIONS: shall determine jurisdiction. That is if all the actions are
mainly for collection of sum of money.
1) The joinder shall not include special civil actions or
actions that are govern by special rules. In other words, Notice that there are only two parties, 1 plaintiff and 1
only ordinary civil actions can be joined. defendant. In other words, the examples involved purely
joinder of causes of action. Now the matter will complicate if
Example: In the problem above, Mr. D also rented the aside from joinder of causes of action, there would also be
house of Mr. P but failed to pay. Mr. P then filed an Joinder of Parties.
ejectment case against Mr. D.
Example:
Question: Is the following allowed – two cases arising Aside from Mr. D, his brother Mr. E, were also able to obtain
from the debt and one case for the ejectment? a loan in the amount of P200, 000. Then, the two failed to
Answer: NO, because ejectment is governed by pay. Can Mr. P in order to save expenses for his lawyer be
special rules so that can't be joined. allowed to file only one case?

2) When the causes of action are between same parties No. Under Sec 5, Rule 2, when the joinder of causes of
but to pertain to different venues or jurisdiction, the action would involve joinder of parties, the provision of
joinder may be allowed in the RTC provided that one of Section 6, Rule 3 must also be followed.
the causes of action falls within the jurisdiction of the
said court. 4) Compliance with the rule on permissive joinder of
parties under Rule 3, Sec. 6.
Example: Same problem above, Mr. P is in Cebu City
while Mr. D is in Manila. Then, another cause of action [Rule 3, SEC.6] Whenever there is joinder of parties,
pertain to recovery of ownership over a parcel of land the causes of action must arise only out of the same
with P100,000 assessed value located in Manila. contract or transaction. Transaction means contract.
There could be joinder of parties provided that the
Question: Can Mr. P join the causes of actions? cause of action must arise only from the same
Answer: Yes, provided Mr. P follows the rules on transaction.
venue and jurisdiction.
Here, in our example there is a joinder of parties. D (claim:
As to jurisdiction, recovery of the property should be filed in 200,000) and E (claim: 200,000) are joined together as
the RTC. As to venue, we learned that it should be filed in defendants. However, under Rule 3, Section 6, it requires
the court where the property is located. If it is filed in Cebu that whenever there is joinder of parties, the cause of action
City, it would be a violation on the rule on venue. So it could of the causes of action must arise only out of the same or
not be filed in RTC Cebu City. series of transaction.

With regard the debt, it could be filed in RTC but there is a In our example, it is not allowed so there is a misjoinder of
problem as to venue because the case to be filed also parties because there are 2 causes of action. So, the case
includes a real action which necessitates that it be filed was filed in RTC possibly because the lawyer must have
where the property is located. There is no problem as to the followed the totality rule. He didn’t consider Section 6, Rule
personal action because it could be filed either where 3. If you were the counsel for the defense of either of the 2,
plaintiff or respondent located at the option of the plaintiff. what will be your remedy? You can file motion to dismiss on

21 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

the basis of Lack of jurisdiction (in the new rules, include It is because there is only 1 incident. And it involves common
such as affirmative defenses). Why? questions of law and facts. So that is Section 6 Rule 3.

It is because the totality rule will not apply because there is a

misjoinder of parties and misjoinder of causes of action. So, Example:
these 2 causes of action should not have been joined. These It is possible that Mr. P file a case for the same transaction
parties should not have been joined. or the same incident against different defendants. Mr. P is
the owner of a huge lot then there are informal settlers. It is
So necessarily, Mr. P would have filed a separate case for a allowed to file only 1 ejectment case against them as
collection of money against Mr. D and another against Mr. E. defendants in one complaint because it involves only one
So, if he joined it, the case would be dismissed on the property, the same facts and the same question of law.
ground of misjoinder of parties and misjoinder of causes of
action. Or there could be separate case for each informal settlers
because joinder of causes of action/parties is permissive. It’s
up to the plaintiff.
Section 6. Misjoinder of causes of action.
Misjoinder of causes of action is not a ground for dismissal So, why joinder of parties allowed? In this example, there
of an action. A misjoined cause of action may, on motion of a could be 6 ejectment cases. It is because by the allowance
party or on the initiative of the court, be severed and of the rules.
proceeded with separately. (n)
SUMMARY
Judge D Under Section 5 Rule 2, a party in one pleading assert, as
many causes of action as he may have against an opposing
GR: Misjoinder of causes of action/parties would not result party but subject to the following conditions:
the dismissal of the case.
XPN: The misjoinder would result to lack of jurisdiction. a) The party joining the causes of action shall comply
with the rules on joinder of parties;
Like the example earlier, there was ejectment, so supposed b) The joinder shall not include special civil actions or
to be, if a cause of action is misjoined, it will not cause a actions governed by special rules;
dismissal of the case. The cause of action if misjoined will c) Where the causes of action are between the same
just be separated. That’s the general rule. parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
The same way with misjoinder of parties, the party that is Regional Trial Court provided one of the causes of
misjoined will just be separated. But, the case of Mr. D and E action falls within the jurisdiction of said court and
is an exception to the rule because it now affects the the venue lies therein; and
jurisdiction of the case. d) Where the claims in all the causes action are
principally for recovery of money, the aggregate
Q: What circumstance or example that there could be amount claimed shall be the test of jurisdiction.
proper joinder of parties?
A: The joinder of parties arose from the same contract and It would be easier if there is only one plaintiff, one defendant,
same transaction. in other words it would be easier if the joinder of causes of
action does not require joinder of parties.
Example:
Mr. D borrowed 200,000 from Mr P. Mr P did not trust much But if the joinder of causes of action would include also
Mr. D so he required a co-maker, Mr. E as co-maker. Co- joinder of parties, it would be difficult because the rules
maker is solidary liable. So in case Mr. D was not able to pay require the causes of action must arise out of the same
his loan, Mr. P can ask from Mr. E. If both did not pay, he transaction or series of transactions involving the same
can file a case against both for failure to pay the loan. question of law and the same question of facts. And the
rules of venue and jurisdiction must also be complied with.
So, there is only 1 contract, and one cause of action. So REMEMBER this because “libog ni sya”.
there is joinder of parties here arose from the same contract
and same transaction. TN! A misjoined cause of action may just be separated
provided the misjoinder does not affect jurisdiction. Because
 There could also be causes of action joined in 1 as what illustrated here, the misjoinder if you are going to
complaint. separate the causes of action the court will lose jurisdiction
or the misjoinder of action, actually amounts to lack of
Example: jurisdiction
Mr. D and E are passengers of the bus of Mr. P. Then, it
encountered an accident. Mr. E can file a separate case Valid Judgment in case of Misjoined Causes of Action
against Mr. P or both Mr. D and E could file in one complaint Misjoined of causes of action is not a ground for dismissal.
against Mr. P. So, there is joinder of causes of action and Indeed, the courts have the power to order the severance of
joinder of parties. Why is it allowed? the misjoined cause of action to be proceeded with
separately. However, if there is no objection to the
improper joinder or the court did not motu proprio direct a

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Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

severance, then there exists no bar in the simultaneous and may not be named a party defendant in a court action.
adjudication of all the erroneously joined causes of action. (Sps. Berot v. Shatno, July 9, 2014 and Ventura v. milcante
(Ada v. Baylon, GR NO. 182435, Aug. 13, 2012) oct.5, 1999)

Note: The foregoing rule only applies if the court trying the In this two cases, the estate of the deceased was sued as
case has jurisdiction over all of the causes of action therein the defendant. According to the SC, the estate cannot be
notwithstanding the misjoinder of the same. If the court trying sued. Do not confuse this with your Special Proceedings,
the case has no jurisdiction over a misjoined cause of action, because in that there could be a claim against the estate.
then such misjoined cause of action has to be severed from The estate can be sued but through the executor, so there
the other causes of action, and if not so severed any has to be a court appointed executor or administrator under
adjudication rendered by the court with respect to the same the ROC (Rule87). Otherwise, if no executor or administrator
would be a nullity. you cannot immediately sue the heirs of the deceased

A bank which have been ordered close by the monetary

RULE 3 board retains its juridical personality which can sue and be
sued but through its liquidator, the Philippine Deposit
PARTIES TO CIVIL ACTIONS
Insurance Corporation. (Manalo v. CA,Oct 8, 2001)

Section 1. Who may be parties; plaintiff and defendant.

Only natural or juridical persons, or entities authorized by
Section 2. Parties in interest.
law may be parties in a civil action. The term "plaintiff" may
A real party in interest is the party who stands to be
refer to the claiming party, the counter-claimant, the cross-
benefited or injured by the judgment in the suit, or the party
claimant, or the third (fourth, etc.) — party plaintiff. The term
entitled to the avails of the suit. Unless otherwise authorized
"defendant" may refer to the original defending party, the
by law or these Rules, every action must be prosecuted or
defendant in a counter-claim, the cross-defendant, or the
defended in the name of the real party in interest. (2a)
third (fourth, etc.) — party defendant. (1a)

Real party in interest - is the party who stands to be

Who may be parties? [Plaintiff/Defendant]
benefited or injured by the judgment in the suit, or the party
a. Natural persons
entitled to the avails of the suit. Unless authorized by law or
b. Juridical person - not really a person, it is only the law
these Rules, every action must be prosecuted or defended in
that considers them as persons like corporations and
the name of the real party in interest.
partnerships.
c. Entities authorized by law - authorized by law to file
Two requirements:
cases such as registered political organization, like
1. To institute an action the Plaintiff must be the real
liberal party, PDP LABAN, they can file cases.
party in interest
2. The action must be prosecution in the name of the
State is also authorized by law as party either as
real party in interest.
plaintiff or defendant. Also group of persons pretending
themselves to be a corporation although they are not
Interest – material interest or interest in issue to be affected
registered, they can be sued as a corporation.
by the decree or judgment of the case as distinguished by
i. Labor union
mere curiosity about the question involve. One having no
ii. Registered political parties
material interest to protect cannot invoke the jurisdiction of
the court as plaintiff in an action. (Phil Numismatic Anti-
Plaintiff – refers to be the claiming party
Quarian Society v. Aquino Jan. 30, 2017)
Defendant – refers to the person being sued/defending
party.
So the owner of the right violated stands to be the real party
in interest as plaintiff, and the person responsible for the
Remedy if a group of persons files a case against you
violation is the real party in interest as defendant. (Li v.
but actually is not registered as a corporation
Ronillo, 161 scar 589)
 File a motion to dismiss for lack of legal capacity to sue.
(in the new amendment include it in the affirmative
Difference between in the name of from by Real Party In
defenses)
Interest
 If it is an unregistered corporation, for example a group
In the name of real party in interest, it could be prosecuted
of persons do not pretend as corporation. They are
by the person duly authorized by the plaintiff.
sued as a registered corporation when in fact they are
not. The case can be dismissed for failure to state the
Minors represented by their parents were held as real parties
cause of action.
in interest to file an action to annul timber licenses issued by
the state, under the following principles:
Sole proprietorship does not have a legal personality to file
a. inter generational responsibility
a case and vise versa because they cannot have a separate
b. inter generational justice
and distinct personality. (Ejercito v. Vargas april 10, 2008)
c. right of the people to a balanced and healthful
ecology
A dead person or his estate cannot be party to a court
action. A decedent does not have the capacity to be sued

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

d. minors represent themselves and the generations case and shall be deemed to be the real property in interest.
to come (Oposa vs. Factoran, G.R. No. 101083, A representative may be a trustee of an expert trust, a
July 30,1993) guardian, an executor or administrator, or a party authorized
by law or these Rules. An agent acting in his own name and
An action must be brought in the name but not necessarily for the benefit of an undisclosed principal may sue or be
by the real party in interest. In fact, the practice is for an sued without joining the principal except when the contract
attorney in fact to bring action in the name of the plaintiff. involves things belonging to the principal. (3a)

Difference from locus standi Representatives as Parties

Where an action is allowed to be prosecuted or defended by
Locus standi – one who is directly affected by and whose representative or someone acting in a fiduciary capacity, the
interest is IMMEDIATE AND SUBSTANTIAL in the beneficiary shall be included in the title of the case and shall
controversy has the standing to sue. In other words, he is a be deemed to be the real party in interest.
real party in interest. He has a personal stake in the outcome
of the controversy. Example:
A child, wherein the father left his family, how can the child
In a case involving constitutional issues, it refers to the ask for the support? Can the child file a case?
personal and substantial interest in a case such that a party
has sustained or will sustain the direct injury because of the No. The mother can file a case for or in behalf of the child.
challenged governmental act. So for example the child is illegitimate, the mother will file the
case. The mother cannot file a case on her own for her
Read the case of [Kilosbayan vs Morato 316 Phil 652] for the support from the father because they are not married, but
distinction of the two. the illegitimate child can ask support. How? Through the
mother.
Who are allowed to sue under this concept of locus
standi? (Kilosbayan, Inc. vs. Morato, 246 SCRA 540 [1995]) Example: John dela Cruz represented by his
mother Juana dela Cruz or Juana dela Cruz in
1. Taxpayers where there is a claim of illegal behalf of her minor child John dela Cruz plaintiff.
disbursement of public funds.
2. Voters to question the validity of election laws because Who is the real party in interest there? The child and the
of their obvious interest in the validity of such laws. mother is the representative party. The child need not
3. Concerned citizens if the constitutional question they execute a Special Power of Attorney because the mother is
raise is of transcendental importance which must be the legal guardian of the child.
settled early.
4. Legislators to question the validity of official action Example:
which they claim infringes on their prerogatives as 5 siblings, then you are the only one who filed the case, your
legislators. siblings just executed SPAs, it should be like this:
“A for himself and in behalf of B, C, D and E”
Effect: the defendant may answer in his answer with
affirmative defenses, that there is a failure to state the All your brothers and sisters must be mentioned in the
cause of action against the defendant because the plaintiff complaint. Not A for himself and in behalf of his brothers and
is not the real party in interest. sisters. (Judge: I have encountered that before, I was the
counsel for the defendant, Juan dela Cruz for himself and in
Remedy of the plaintiff: amend the complaint behalf of his nephews and nieces. There were no SPAs also.
And the names of the nephews and nieces are not even
The person filing the case as the representative is not duly mentioned. Kaluoy sa abogadong naghimo sa complaint!)
authorized to file the case, the court did not acquire
jurisdiction over the case and over the plaintiff (cuco phil  There is a need to mention the names for purposes of
shipping incorp v. temper april 23, 2012 citing the case of notices.
tabung vs ca )  For the defendant, all parties must be named or
mentioned in the complaint for purposes of serving
Indispensable Parties (Rule 3, Sec. 7) summons.
An indispensable party is one without whom NO FINAL  For the plaintiff, for purposes of counterclaim because if
DETERMINATION can be had of an action. He shall be the case will be dismissed you can ask for damages.
joined either as plaintiff or defendant. (refer to Rule 3, Sec.7)
Representative maybe:
Necessary Party (Rule 3, Sec.8) a) A trustee of an express trust,
Indigent Parties (rule 3, Sec.21) b) A guardian,
c) An executor,
d) An administrator; or
Section 3. Representatives as Parties e) A party authorized by law or these Rules.
Where the action is allowed to be prosecuted and defended
by a representative or someone acting in a fiduciary An agent acting in his own name and for the benefit of an
capacity, the beneficiary shall be included in the title of the undisclosed principal may sue or be sued without joining the

24 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

principal except when the contract involves things belonging Section 5. Minor or incompetent persons
to the principal. A minor or a person alleged to be incompetent, may sue or
be sued with the assistance of his father, mother, guardian,
 How about the dolphins, can they file a case? Look at or if he has none, a guardian ad litem. (5a)
this case [Ramos vs Reyes at al. GR No. 180771 April
21, 2015] Minor or Incompetent Persons
 What about children yet unborn? Can they file a case
through representative? Yes. What is that case?  If a minor files a case through a representative they
(OPOSA VS FACTORAN) should be included in the complaint, they should be
mentioned in the complaint.
What is the remedy if the supposed representative is not  If a minor files a case without the assistance of his
duly authorized? The case may be dismissed for failure to father, mother, guardian or, a guardian ad litem (a
state the cause of action. And there are some courts who guardian only for that purpose) the case will be
dismissed the case of the ground of lack of jurisdiction over dismissed for lack of legal capacity to sue.
the case or over the plaintiff. (cusco case, heirs of medina v.  If the minor is the defendant and the guardian is not
natividad) included in the complaint the case could be dismiss for
failure to state a cause of action.

Section 4. Spouses as parties

Husband and wife shall sue or be sued jointly, except as Section 6. Permissive joinder of parties
provided by law. (4a) All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of
Example: transactions is alleged to exist, whether jointly, severally, or
The wife borrowed money from a lender but fails to pay, the in the alternative, may, except as otherwise provided in
husband should be sued jointly with the wife. Because if these Rules, join as plaintiffs or be joined as defendants in
there will be a judgment against the debtor wife, the one complaint, where any question of law or fact common to
judgment is charge to the joint properties unless the wife has all such plaintiffs or to all such defendants may arise in the
exclusive properties. So the husband should be included action; but the court may make such orders as may be just
because the husband and the wife are joint and co- to prevent any plaintiff or defendant from being embarrassed
administrators of their properties. or put to expense in connection with any proceedings in
which he may have no interest. (6n)
“Except as provided by law”
There are instances that the husband or the wife can be Permissive Joinder of Parties
sued separately, such as if the spouses have agreed to have Parties can be joined in a single complaint or may
a complete separation of property regime or if the wife is themselves maintain or be sued in separate suits. Normally,
sued over her paraphernal properties. joinder is permissive provided that the following requisites
concur: (CAP)
Note: Non-joinder of the spouse as a party is merely a
formal requirement and cannot be a ground for dismissal of 1. There is a question of law or fact Common to all
the case. plaintiffs or defendants;
2. The right to relief Arises from the same
 If a spouse is not joined as a party to the case, the transaction or series of transactions; and
court will order the plaintiff to amend the complaint and 3. The joinder is not Proscribed by the provisions of
implead the spouse who is not impleaded. the Rules on jurisdiction and venue.
 Effect if plaintiff does not comply with the order: The
case could be dismiss not because of non-joinder of Compulsory Joinder of Parties
party but because of his failure to comply with the order Joinder of a party becomes compulsory when the one
of the court, under Sec 3, Rule 17. involved is an indispensable party. Where an indispensable
party is not a party to an action, the court shall order that he
SEC. 3, RULE 17. DISMISSAL DUE TO FAULT OF be joined as a party to the action.
PLAINTIFF
If, for no justifiable cause, the plaintiff fails xxx xxx to Misjoinder of Parties
comply with these Rules or any order of the court, the A party is misjoined when he is made a party to the action
complaint may be dismissed upon motion of the although he should not be impleaded.
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his Non-joinder of Parties
counterclaim in the same or in a separate action. This It means the failure to bring a person who is a necessary
dismissal shall have the effect of an adjudication upon party or in this case indispensable party into a lawsuit.
the merits, unless otherwise declared by the court.]
Q: Is the misjoinder or non-joinder of parties a ground
Read: Imperial vs. Joashian, April 14, 2004 about the non- for dismissal?
joinder of the husband as a party. A: The misjoinder or non-joinder of a party is not per a
ground for the dismissal of the action. (Rule 3, Sec.11)

25 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
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However, when the court orders the adding or dropping Indispensable party vs. Necessary party
of a party and such is not obeyed it is a ground for dismissal
if there will be failure to comply with the court’s order. (rule
17, Sec.3) Indispensable Party Necessary Party
It is a party interest without It is on who is not
Example: whom no final determination indispensable but who ought
D and P obtained a loan from the bank and dapat nay co- can be had of an action. to be joined as a party if
maker. E apil ang co-maker, pwede ban a? yes, because it complete relief is to be
only arised from the same contract, provided there must be accorded as to those
common question of fact and law, meaning the same already parties of for a
evidence. complete determination or
settlement of the claim
subject of the action.
Section 7. Compulsory joinder of indispensable parties
Parties in interest without whom no final determination can Magic word here:
be had of an action shall be joined either as plaintiffs or  Indispensable party – final determination;
defendants. (7)  Necessary party – complete relief/determination.

Indispensable Parties
An indispensable party is one without whom NO FINAL Section 8. Necessary party
DETERMINATION can be had of an action. He shall be A necessary party is one who is not indispensable but who
joined either as plaintiff or defendant. ought to be joined as a party if complete relief is to be
accorded as to those already parties, or for a complete
His interests in the subject matter of the suit and in the relief determination or settlement of the claim subject of the action.
sought are so bound up with that of the other parties that his (8a)
LEGAL PRESENCE as party to the proceeding is an
ABSOLUTE NECESSITY.

Without the presence of indispensable parties to a suit or Section 9. Non-joinder of necessary parties to be
proceeding, the judgment of the court cannot attain real pleaded.
finality. (Service wide Specialists, Inc. vs. CA, 251 SCRA 70 Whenever in any pleading in which a claim is asserted a
[1997]) necessary party is not joined, the pleader shall set forth his
name, if known, and shall state why he is omitted. Should
Examples of indispensable parties: the court find the reason for the omission unmeritorious, it
1. Vendors in an action to annul the sale may order the inclusion of the omitted necessary party if
2. Lot buyers in an action for reconveyance of jurisdiction over his person may be obtained.
parcels of land which had already been subdivided
3. Co-owners in an action for partition The failure to comply with the order for his inclusion, without
4. Possessor of land in an action for recovery of justifiable cause, shall be deemed a waiver of the claim
possession against such party.

Where the obligation of the parties is solidary, either of the The non-inclusion of a necessary party does not prevent the
parties is indispensable, and the other is not even a court from proceeding in the action, and the judgment
necessary party because complete relief is available from rendered therein shall be without prejudice to the rights of
either. (Cerezo vs. Tuazon, G.R. N0. 141538, March 23, such necessary party. (8a, 9a)
2000)
Necessary Parties
Example of case that involves indispensable parties:
(Partition)
A necessary or proper party is one who is not indispensable
but who ought to be joined as party:
Parents died, and there are 5 children A, B, C, D, and E. A
acquires all the inheritance left by the deceased parents. B
a. If COMPLETE RELIEF is to be accorded as to those
wants to recover his share from the estate and ask his other
already parties, or
siblings C, D, and E to recover also their shares but they
b. For a COMPLETE DETERMINATION or SETTLEMENT
were no longer interested to claim the same.
of the claim subject of the action.
What will B do? He should implead his siblings as unwilling
Their presence is necessary to adjudicate the whole
co-plaintiff, they should be impleaded as defendants. They
controversy but whose interests are so far SEPARABLE that
are required to be included as parties because they are
a final decree can be made in their absence without affecting
indispensable parties. Otherwise, he should be sued as a
them.
defendant as an unwilling co-defendant, Sec.10.
Non inclusion of a necessary party does not prevent the
court from proceeding in the action and the judgment is

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WITHOUT PREJUDICE to the rights of such necessary just. Any claim against a misjoined party may be severed
party. and proceeded with separately. (11a)

Examples of necessary parties: Indispensable party not joined, the decision of the court is
1. Co debtor in a joint obligation void. So the court has to order the inclusion of that party.
2. Subsequent mortgagees or lien holders in judicial The complaint has to be amended, either as a plaintiff of
foreclosure of mortgage defendant.
3. Possessor (tenant, etc.) in an action for recovery
of ownership of land (the owner is the
indispensable party) Section 12. Class suit
4. Owner in an action to recover possession of land When the subject matter of the controversy is one of
(the possessor is the indispensable party) common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of them
Example of a necessary party: which the court finds to be sufficiently numerous and
 In case of joint obligation – 4 debtors jointly borrowed representative as to fully protect the interests of all
money from X, for 200,000. Each had P50, 000. They concerned may sue or defend for the benefit of all. Any party
are only liable up to the extent of their shares, not liable in interest shall have the right to intervene to protect his
to the share of their co – debtors – that is what we call individual interest. (12a)
necessary parties.
Class Suit
If the creditor/s files a case against the 4 of them or
An action filed or defended by one or more parties for the
against one of them, the remaining 3 debtors can be
benefit of parties who are so numerous that it is
included in order to attain complete relief or settlement
impracticable to bring them all before the court, involving a
of the claim. If the remaining 3 debtors are not included,
matter which is of common or general interest to such
it is still ok but there can be no complete determination
numerous persons.
of the claim.
There should be only ONE RIGHT OR CAUSE OF ACTION
 In case of a SOLIDARY DEBTOR, he should be
pertaining or belonging in common to many persons, not
considered neither an indispensable nor necessary
separately or severally to distinguish the individuals.
because under the obligations and contracts, the
fulfillment of the obligation can be done by anyone or all
Requisites of Class Suit: [CNS]
of the solidary debtors. Because there can be a final
1. The subject matter of controversy (so only one
and complete determination of the claim even if only
cause of action) is one of Common or general
one of the debtors are impleaded.
interest to many persons;
2. The parties affected are so numerous that is
If the court finds that the omission of the party is
impracticable to bring them all to court; and
unreasonable the court may order to implead the party, if fail
3. The parties bringing the class suit are Sufficiently
to do so, the court can motu proprio dismiss the case on the
numerous or representative of the class and can
ground of failure to comply the order of the court, sec.3,
fully protect the interests of all concerned.
rule17. Or the court can consider it as a waiver to claim from
(Juana Complex I Homeowners Ass., Inc. v. Fil-
such party.
Estate Land, Inc. G.R. 152272, March 5, 2012)
Indigent Parties (proceed to Rule 3, Sec.21)
Alternative Defendants (proceed to Rule 3, Sec.13)
Oposa vs. Factoran, G.R. No. 101083, July 30, 1993, 224
SCRA 12
Petitioners minors assert that they represent their generation
Section 10. Unwilling co-plaintiff
as well as generations yet unborn. We find no difficulty in
If the consent of any party who should be joined as plaintiff
ruling that they can, for themselves, for others of their
cannot be obtained, he may be made a defendant and the
generation and for the succeeding generations, file a class
reason therefor shall be stated in the complaint. (10)
suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
Q: What is the remedy if one of the co-plaintiff is intergenerational responsibility insofar as the right to a
unwilling to join the case? balanced and healthful ecology is concerned. Further, that
A: If the consent of any party who should be joined as there is only one cause of action.
plaintiff cannot be obtained, he may be made a defendant
and the reason thereof shall be stated in the complaint.
Arigo vs. Swift, G.R. No. 206510, September 16, 2014
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn, is
Section 11. Misjoinder and non-joinder of parties
now enshrined in the Rules which allows the filing of a
Neither misjoinder nor non-joinder of parties is ground for
citizen suit in environmental cases. The provision on citizen
dismissal of an action. Parties may be dropped or added by
suits in the Rules collapses the traditional rule on personal
order of the court on motion of any party or on its own
and direct interest, on the principle that humans are
initiative at any stage the action and on such terms as are
stewards of nature.

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Individual suit, class suit, derivative suit who will file the case.
Class Suit Derivative Suit
1. Where a stockholder or member is denied the right of This right refers to the right
inspection, his suit would be individual because the of the minority stockholders
wrong is done to him personally and not to the other of a corporation to file a
stockholders or the corporation. case because intracorporate
remedies can no longer be
2. Where the wrong is done to a group of stockholders, as availed as the majority of the
where preferred stockholders rights are violated, a stockholders have already
class or representative suit will be proper for the committed an act
protection of all stockholders belonging to the same detrimental to the
group. corporation.

3. Whenever officials of the corporation refuse to sue or So minor stockholders files a

are the ones to be sued or hold the control of the suit in behalf of the
corporation, an individual stockholder is permitted to corporation.
institute a derivative suit on behalf of the corporation
wherein he holds stock in order to protect or vindicate Note: In case of doubt, class suits should not be allowed.
corporate rights. (Ching vs. Subic Bay Golf and Instead of class suit, it should be proper joinder of causes of
Country Club, G.R. No. 174353, September 10, 2014) action and joinder of parties.

Judge D
Section 13. Alternative defendants
[Bulig-Bulig kita Kamag-Anak Association vs Sulpicio Where the plaintiff is uncertain against who of several
Lines - May 19, 1989] persons he is entitled to relief, he may join any or all of them
Facts: One of the ship of Sulpicio lines collided with another as defendants in the alternative, although a right to relief
ship which was a tanker. When the 2 ships collided, the against one may be inconsistent with a right of relief against
ships were caught by fire, some of the passengers died from the other. (13a)
the fire, some were drown.
 Remember the collision of the 2 ships near Talisay city
Now, the survivors and the heirs of the deceased - The MV St. Thomas Aquinas and Cargo ship of
passengers, filed a class suit against Sulpicio lines. Sulpicio Lines. Suppose you are one of the passenger,
Relatives of those who died during the sinking of the ship, who are you going to sue? The MV St. Thomas or the
and the survivors, attempted to file a class suit against Cargo ship?
Sulpicio lines in behalf of those who were drown and those  In case of a principal or agent? Who are going to sue?
who were unidentified. Is the case proper for class suit? The agent or principal?
 In case of doubt, you can file a case against both of
Ruling: No. The very important requirement is that the them in the alternative and it’s up to the court to find out
subject matter of the controversy is one of common or who is to be held liable.
general interest to many persons so numerous that it is
impracticable to join all as parties. Example:
A person boarding a passenger bus nya na bangaan sa lain
According to the Supreme Court, the case is not proper for vehicle and he is injured. Who will he filed a case against
class suit because the survivors have no interest in the with? The passenger bus or katung nka bangga nila? So that
death of the other passengers. Neither the relatives of the is alternative defendant, so either, the operator and driver or
deceased passengers have no interest over the death of include the driver and owner of the vehicle who bump them,
other passengers. The interest here is not common to all. you may include them all and it’s up to the court to find out
The interest here is individual. The case is not proper for who is to be held liable.
class suit, it may be proper for permissive joinder of parties.

A subdivision nga naa sa interior, ilang right of way of gi Section 14. Unknown identity or name of defendant
sirad.an they filed a class suit against the developer. (Juana Whenever the identity or name of a defendant is unknown,
complex juan Homes Assc. v. Phil estate land corp, he may be sued as the unknown owner heir devisee, or by
march 5, 2012) such other designation as the case may require, when his
identity or true name is discovered, the pleading must be
Class Suit Permissive Joinder of amended accordingly. (14)
Parties
In class suit there are for All are involve in the case. Q: What if you do not know the defendant? You do not
example 1,000 people are know who is the driver? You do not know the name of
involve but it is enough that
the operator? Can you file a case?
100 of them may file the suit. A: Yes under unknown identity or name of defendant.
However, the problem of this is that you cannot serve
There will be only summons.
representative of the groups

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Section 15. Entity without juridical personality RULES when the action survives the death of the party
as defendant It depends if the action involves a contractual money claim
When two or more persons not organized as an entity with or not:
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or A. If it is a contractual money claim:
commonly known. (i) If the plaintiff dies - the case will continue and the
heirs or legal representatives will proceed as
In the answer of such defendant, the name and addresses of substitutes; or
the persons composing said entity must all be revealed. (ii) If the defendant dies:
a. Before entry of final judgment – the case
 We have discussed this already, they can be defendant shall not be dismissed but shall be
but they cannot be plaintiffs. They can be sued as if allowed to continue until entry of final
they are juridical persons, but they should indicate judgment. (Rule 3, Sec.20)
all their names. b. After entry of final judgment but before
execution – all claims against the
 The summons may be served on just one of them and decedent, whether due, not due, or
also in the complaint no need to name all the persons in contingent, must be filed within the time
the group so they can be named on the name of the limited in the notice as a claim against
corporation they are bringing. But in their answer their the estate, (Rule 86, Sec.5). the plaintiff
names should be indicated. cannot move for execution under Rule
39; or
c. After levy or execution but before
auction sale – the property actually
Section 16. Death of party; duty of counsel
levied may be sold for the satisfaction of
Whenever a party to a pending action dies, and the claim is
the judgment obligation, (Rule 39,
not thereby extinguished, it shall be the duty of his counsel
Sec,7, Par.c)
to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his
B. If it involves a non-contractual money claim or
legal representative or representatives. Failure of counsel to
claims which are mentioned in Sec.7, Rule 86 and
comply with his duty shall be a ground for disciplinary action.
Sec.1, Rule 87, there must be substitution.
The heirs of the deceased may be allowed to be substituted
Judge D
for the deceased, without requiring the appointment of an
Q: What will happen if a party to a pending case dies?
executor or administrator and the court may appoint a
A: When the case is not extinguished by the death of that
guardian ad litem for the minor heirs.
party, it will be the duty of the counsel to inform within 30
days. There are cases that would be dismissed if the
The court shall forthwith order said legal representative or
defendant dies. There are cases that would continue when
representatives to appear and be substituted within a period
the party such as the defendant dies. So, one has to
of thirty (30) days from notice.
determine first whether the case is extinguished due to the
death of the defendant.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear
Usually, cases that survive are those cases:
within the specified period, the court may order the opposing
 Concerning recovery of real property.
party, within a specified time to procure the appointment of
 Actions to enforce liens on the property.
an executor or administrator for the estate of the deceased
 Actions to recover for injury committed by the
and the latter shall immediately appear for and on behalf of
deceased.
the deceased. The court charges in procuring such
 Cases based on contractual money claims.
appointment, if defrayed by the opposing party, may be
recovered as costs. (16a, 17a)
In those cases, which are not extinguished, the counsel for
the deceased is obliged to report the death of his client and
Effect of Death of Party Litigant to supply the court with the name of the representative
Where the claim is not extinguished by the death of the (administrator/ executor or heir).
litigant: (IS-ExecAd-G)
 Failure on the part of the counsel is a ground for
1. The counsel shall Inform the court of such fact within disciplinary action.
30 days from such death and to give the name and
address of the legal representative; Action of the Court
2. Heirs may Substitute for the deceased; After lawyer informs the death of the client and supply the
3. If no legal representative is name, the court will order name of the representative to the court, it shall be the duty to
the opposition party to procure the appointment of an order the substitution of the deceased.
Executor or Administrator for the estate of the
deceased; and If there is no representative, the court will then order the
4. In case of minor heirs, the court may appoint a opposing party to procure the appointment of an executor or
Guardian ad litem for them. administrator of the estate of the defendant and the

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expenses shall be defrayed or reimbursed by the opposing

party.  This rule is also applicable to criminal case.
 Vda. Salazar (250 scra 2013) – same ruling
If the proceeding were continued despite the death of the
party by reason of the failure of the lawyer of the defendant Dela Cruz vs. Joaquin, G.R. No. 162788, July 28, 2005
to inform the court, the proceeding would then be void The Rules require the legal representatives of a dead litigant
because there is denial of due process. to be substituted as parties to a litigation. This requirement is
necessitated by due process. Thus, when the rights of the
Nature of substitution of heirs as parties legal representatives of a decedent are actually recognized
The rule on substitution of heirs is not a requirement of and protected, noncompliance or belated formal compliance
jurisdiction but requirement of due process. It was designed with the Rules cannot affect the validity of the promulgated
that the deceased party will be represented. Non-compliance decision. After all, due process had thereby been satisfied.
of the rules is violation of the rights of the heirs. When a party to a pending action dies and the claim is not
extinguished, the Rules of Court require a substitution of the
Note: If there was no substitution but the children appeared deceased. The procedure is specifically governed by Section
in court, the proceeding will be valid because there is no 16 of Rule 3.
denial of due process. Formal substitution of heirs is not
necessary when they appeared before the court.
Limbauan vs. Acosta, G.R. No. 148606, June 30, 2008
Failure of counsel to comply with his duty under Section 16
Judge D: What will happen if the lawyer fails to notify
to inform the court of the death of his client and no
the court?
substitution of such party is effected, will not invalidate the
So the court will continue with the case because there is no
proceedings and the judgment thereon if the action survives
notice as to the death of the defendant. The court will
the death of such party. Moreover, the decision rendered
presume that the defendant is not anymore interested with
shall bind his successor in interest. The instant action for
the case so it will continue. If during presentation of evidence
unlawful detainer, like any action for recovery of real
the defendant will not show up then the court will declare
property, is a real action and as such survives the death of
that the defendant has waived his right to present evidence,
Faustino Acosta. His heirs have taken his place and now
so the court will now decide the case and most likely the
represent his interests in the instant petition.
decision will be in favor of the plaintiff.

If such case is recovery of possession of property, what will

happen? So the plaintiff will order the recovery, so in this the Section 17. Death or separation of a party who is a
heirs will be prejudiced. Now, the decision of the court will public officer.
become void, not because the court has lost of jurisdiction When a public officer is a party in an action in his official
over the case but because on the ground that there was capacity and during its pendency dies, resigns, or otherwise
denial of due process on the part of the heirs. Hence, this ceases to hold office, the action may be continued and
Sec.16 has something to do with the right of due process to maintained by or against his successor if, within thirty (30)
the heirs. This is not jurisdiction. days after the successor takes office or such time as may be
granted by the court, it is satisfactorily shown to the court by
any party that there is a substantial need for continuing or
Naperes v. balbarona, Jan 31, 2008 maintaining it and that the successor adopts or continues or
The lawyer failed to notify the court of the death of the threatens to adopt or continue to adopt or continue the
action of his predecessor. Before a substitution is made, the
defendant but the heirs of the deceased continued to
party or officer to be affected, unless expressly assenting
appear in court even if they were not order by the court, they
thereto, shall be given reasonable notice of the application
voluntarily appeared in court. Now, what will happen since
therefor and accorded an opportunity to be heard. (18a)
there is no order?

SC: the decision is valid beca the purpose of requiring the  Another case of substitution. One of the parties in this
defendants to appear in court is a req of due process. So if case is a public officer either elected or appointed
there is no denial of due process such that the children or and sued in his official capacity. If the official who is
heirs were able to present evidence then the decision will be sued in his official capacity is separated from service,
valid. the successor will substitute for him if the successor
would continue the case.
Note: the rules of substitution of heirs is not a matter of
jurisdiction but a requirement of due process to insure that
the deceased party would continue to be represented in the Section 18. Incompetency or incapacity
suit thru his heirs or duly authorizes representative. Non- If a party becomes incompetent or incapacitated, the court,
compliance with the rules results in the denial of due process upon motion with notice, may allow the action to be
to the heirs who were not duly notified of the proceedings will continued by or against the incompetent or incapacitated
be substantially affected by the decision rendered therein. person assisted by his legal guardian or guardian ad litem.
Thus, it is only when there is denial of due process as when (19a)
the deceased is not represented by any legal representative
or heir that the court nullifies the trial proceeding and the
resulting judgment therein. Party becomes incompetent

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There will be no substitution but the court will appoint Favorable judgment in favor of the plaintiff will be taken from
guardian ad litem to assist the incompetent. the estate as a money claim.

Rule 85, sec.5 – claims against estate.

Section 19. Transfer of Interest
In case of any transfer of interest, the action may be
continued by or against the original party, unless the court Section 21. Indigent party
upon motion directs the person to whom the interest is A party may be authorized to litigate his action, claim or
transferred to be substituted in the action or joined with the defense as an indigent if the court, upon an ex
original party. (20) parte application and hearing, is satisfied that the party is
one who has no money or property sufficient and available
Transfer of interest for food, shelter and basic necessities for himself and his
In any case where the interest of the party is transferred, the family.
action will be continued or against the original party.
Such authority shall include an exemption from payment of
Example: A case involving a parcel of land filed by the docket and other lawful fees, and of transcripts of
plaintiff against the defendant and while the case is pending stenographic notes which the court may order to be
the defendant decided to sell the land. The buyer upon furnished him. The amount of the docket and other lawful
acquisition of the land would have to acquire the case as fees which the indigent was exempted from paying shall be a
well. Considering that the defendant no longer has interest lien on any judgment rendered in the case favorable to the
over the case, who will substitute him? indigent, unless the court otherwise provides.

The Buyer, he could substitute the defendant in the case. Any adverse party may contest the grant of such authority at
any time before judgment is rendered by the trial court. If the
Read: Negrano v. divera aug.9, 2010 court should determine after hearing that the party declared
as an indigent is in fact a person with sufficient income or
property, the proper docket and other lawful fees shall be
Section 20. Action and contractual money claims assessed and collected by the clerk of court. If payment is
When the action is for recovery of money arising from not made within the time fixed by the court, execution shall
contract, express or implied, and the defendant dies before issue or the payment thereof, without prejudice to such other
entry of final judgment in the court in which the action was sanctions as the court may impose. (22a)
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final Indigent Parties
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided General Rule: Upon filing of the complaint, the
in these Rules for prosecuting claims against the estate of a corresponding docket fees needs to be paid. Failure on the
deceased person. (21a) part of the plaintiff to pay corresponding docket fees may
cause the dismissal of the case because the court acquires
Judge D: [We discussed already instances when a case jurisdiction over the case or over the plaintiff only upon the
would be dismissed. One of those instances is when the filing of the pleading and payment of corresponding docket
defendant dies. Normally, the case is a personal action such fees.
as specific performance.
How to litigate as an indigent party?
Example: Remedy to the problem: File a motion to litigate as
Defendant and Plaintiff agreed that the former would paint a indigent litigant (ex parte), attach this to the complaint.
portrait of the latter. However, despite payment, Defendant Attach to the motion documents supporting your claim, e.g.,
did not create any portrait. Tired of waiting, the plaintiff then certification from DSWD, no property so certification from
sued Defendant. Upon the death of the defendant, what city assessor; and affidavit of the disinterested person
would happen? The case would be dismissed as there will attached sa motion sa party litigant.
be no one who will do the painting.]
“Who can certify that the party has no money?”
In this Section, the money claim is a personal action. A letter from the DSWD stating they have no means to pay.
Although being a personal action, it is one of those which are
not extinguished upon death. It will continue until final “Who can certify that he has no property?”
judgment. A certification from the assessor’s office.

Example:  The authority to litigate as an indigent party includes an

The case is recovery of sum of money arising from contract exemption from the payment of:
express or implied such as a contract of loan. The defendant
dies before entry of judgment. If after the entry of judgment, 1. Transcript of stenographic notes
the defendant dies, the heirs will be the one to shoulder the 2. Docket fees and other lawful fees
money judgment up to the amount of their inheritance.
Note: The amount of the docket and other lawful fees which
the indigent was exempted from paying shall be a LIEN on

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any judgment rendered in the case favorable to the indigent, Section 22. Notice to the Solicitor General
unless otherwise provided (Rule 3, Sec. 21). In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or
 Strictly speaking, he is not exempt from paying the regulations, the court, in its discretion, may require the
docket fees. It is just that it is held in abeyance. It will appearance of the Solicitor General who may be heard in
be enforced after winning the case. person or a representative duly designated by him. (23a
 This section is related to the provision in the
constitution that states that access to the courts will not Q: What is the Office of the Solicitor General?
be denied by reason of poverty. A: It is the legal counsel of the Republic of the Philippines or
the different government offices or agencies.
If Party is not actually an Indigent
If later on, it was found that the plaintiff is not indigent, the
court would then give him period to pay the docket fees or
RULE 4
else the case will be dismissed.
VENUE OF ACTIONS
Sometimes, it is not advisable to litigate as an indigent
because in case moral damages are awarded, a smaller Venue refers to the place where a civil action may be tried;
award is given because litigating as an indigent means that in civil cases, it essentially concerns a rule of procedure
you belong to the lower strata of society. which looks primarily at the convenience of the litigants.
[Gumabon, et al. v. Larin, G.R. No. 142523, (2001)]
Note: The provision is available only to a natural person. It
is not available to a charity organization which is a juridical In civil cases, it is a procedural matter and not jurisdictional,
person. as compared to criminal cases, where the venue is
jurisdictional.
Read case of:
 Tokio Marine Insurance vs. Valdez 01/28/08 - not Venue relates only to the place of trial or the geographical
all party should be indigent. location in which an action or proceeding should be brought.
 Algora vs. Naga City – 08/30/06 It is intended to accord convenience to the parties and does
not equate to the jurisdiction of the court. [Dolot v. Paje, G.R.
Guidelines 199199 (2013)]
The guidelines for determining whether a party qualifies as
an indigent litigant are provided for in Section 19, Rule 141, Venue vs. Jurisdiction
which reads:
Sec. 19. Indigent litigants exempt from payment of Venue – locality or place where the suit may be had. Relates
legal fees. Indigent litigant (a) whose gross income to jurisdiction over the person rather than the subject matter.
and that of their immediate family do not exceed Provisions relating to venue establish a relation between
an amount double the monthly minimum wage of plaintiff and defendant.
an employee; and (b) who do not own real
property with a fair market value as stated in the Jurisdiction power of the court to decide the case on the
current tax declaration of more than three hundred merits.
thousand pesos (P300,000.00) shall be exempt
from the payment of legal fees.  Provisions on jurisdiction establish a relation between
the court and the subject matter.
See: AM 09-06-09-SC aug.19, 2009  A court cannot motu proprio dismiss a complaint on the
ground of improper venue since improper venue may
If a litigant who wants to litigate as IP has submit all these be WAIVED for failure to object to it (Decoycoy vs. IAC,
document then it is a MATTER OF RIGHT for such litigant to 195 SCRA 641 [1991]).
be an indigent party. (tris v. surongon feb. 14, 2015 and Sps
Alcora v. Naga City oct 30, 2006) On dismissal based on improper venue
Improper venue is no longer one of the grounds for a motion
Set motion for hearing if the requirements are lacking for the to dismiss under the Amended Rules. However, the ground
party to prove that he is an indigent litigant. of the venue being improperly laid is one of those that may
be set as an Affirmative Defense in the answer. The failure
The defendant objected. Can he contest the veracity of to raise the affirmative defense in the answer will constitute a
the grant of authority? waiver of such. [Sec 12, Rule 8]
Yes, under sec.21, he can contest prior judgment of the
court. There should be a hearing to give opportunity for the However, the court may make a motu proprio dismissal for
defendant that the plaintiff is not indigent. If so proven that improper venue, inter alia, in actions covered by the Rules
not IP, the court shall order the appropriate docket fees and on Summary Procedure [Sec. 4], Rule of Procedure for
other lawful fees. Small Claims cases [Sec. 9], and in ejectment cases. [Sec.
5, Rule 70]

32 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Section 1. Venue of real actions Q: What about if there are several parties? Where to
Actions affecting title to or possession of real property, or file?
interest therein, shall be commenced and tried in the proper A: According to the SC, where the subject matter of the case
court which has jurisdiction over the area wherein the real involves several parcels of land situated in different
property involved, or a portion thereof, is situated. provinces, the venue is determined by the singularity or
plurality of the transactions involving the said parcels of land.
Forcible entry and detainer actions shall be commenced and
tried in the municipal trial court of the municipality or city So where said parcels of land are the subjects of one and
wherein the real property involved, or a portion thereof, is the same transactions such as a contract of sale, the venue
situated. (1[a], 2[a]a) shall be in the court of any of the provinces wherein a parcel
of land is situated but if the parcels of land are subject of
Venue of Real Actions different and separate transactions such as separate sale,
Where the action is real, the venue is local; hence, the there is no common venue and separate cases should be
venue is the place where the real property involved, or any filed in the court of the province of each parcel of land is
portion thereof, is situated at the proper court, (MTC or RTC) situated. [EL HOGAR FILIPINO vs. A. P. SEVA GR L36627]

Real action – affects title to, possession or interest of real “Forcible entry and Unlawful detainer”
property. It is filed in the proper court, either MTC or RTC, Those cases should only be filed in the first level courts
which has jurisdiction over the area wherein in the real where the real property involves or the person thereof is
property involved or a portion thereof is situated. situated. RTC does not have jurisdiction over ejectment
cases. Ejectment case is actually a recovery of possession
Examples: where the deprivation of possession did not last longer than
a. Recovery of possession 1 year.
b. Partition or condemnation
c. Foreclosure of mortgage Forcible entry and detainer are real actions, regardless of
d. Annulment or rescission of sale of real property amount of damages involved.
(actually for recovery) N.B. But venue may be changed and transferred to another
place by agreement of the parties, and such agreement is
Personal action valid and enforceable (Villanueva vs. Mosqueda, 115 SCRA
- all actions that are not action affecting title to or 904 [1982]).
recovery possession or ownership or interest of
the real property, are personal actions which shall  Racktan v. Darugha June 6, 2016)
be filed at the option of the plaintiff.
- The case has to decide either residence of the
plaintiff or defendant Section 2. Venue of personal actions
All other actions may be commenced and tried where the
Real action – could be an action in personam if the case is plaintiff or any of the principal plaintiffs resides, or where the
only be binding against the parties involve. defendant or any of the principal defendants resides, or in
the case of a non-resident defendant where he may be
Binding effect of the decision: found, at the election of the plaintiff. (2[b]a)
 in personam,
 quasi in rem, and Venue of Personal Actions
 in rem If the action is personal, the venue is transitory; hence, it is
the residence of the plaintiff or any of the principal plaintiffs,
 Determination of the nature of the action depends on or the residence of the defendant or any of the principal
the allegations of the complaint. defendants, at the election of the plaintiff.
 Allegations of the actions after determining the nature,
the latter will determine the venue of the case. All other cases are considered personal actions and may be
filed and tried where:
Primary objective, Recovery of the personal property, a. The plaintiff or any of the other personal plaintiffs
recovery of damages, enforcement of a contract (specific resides or
perfrormace or contract of loan) so this is a personal action b. The defendant or any of the principal defendants
and the same should be filed either in the residence of the resides; or
plaintiff or defendant or in the latter’s whereabouts at the c. In the case of a non-resident defendant, where he
option of the plaintiff. may be found, at the election of the plaintiff.

Note: Determine the principal relief being prayed for to If Plaintiff is a corporation: The residence of the corporation
determine the action, whether personal or real, venue and is the place where it principal business is located and not the
jurisdiction of the case. place where its branch is situated.

Q: In an action for recovery of ownership over a real “Residence”

property, where should the case be filed? According to the SC, the residence of the person is the
A: In the court that has territorial jurisdiction over the place personal, actual or physical habitation or his actual
the property or any portion thereof is located. residence or place of abode, whether permanent or

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

temporary as long as he resides in continuity and Still, service of summons is needed for reason of compliance
consistence therein. of due process but not jurisdiction over the defendant.

The concept of residence is different from domicile under

political law, because domicile is the place where he has the Section 4. When rule not applicable
intent to return. Residence under remedial law is the place This Rule shall not apply.
where the parties actually reside at the time the action is
filed. (a) In those cases where a specific rule or law provides
otherwise; or
Effect if case is filed in the wrong venue (b) Where the parties have validly agreed in writing before
It depends whether there is timely objection from the the filing of the action on the exclusive venue thereof.
defendant.
 If there is timely objection – the case shall be dismissed Rules on venue will not apply
 If there is no objection – such ground for dismissal is 1. There is a specific provision of law providing otherwise
considered waived.
Example: Libel case
Plaintiff can file in the place where:
Section 3. Venue of actions against non-residents a. The libelous statement is first printed and published or
If any of the defendants does not reside and is not found in b. Any of the parties actually resides;
the Philippines, and the action affects the personal status of
the plaintiff, or any property of said defendant located in the  In the case of a Public Officer, the same can be filed in
Philippines, the action may be commenced and tried in the the place where he holds office.
court of the place where the plaintiff resides, or where the
property or any portion thereof is situated or found. (2[c]a) 2. Parties have expressly agreed in writing the place
where the case should be filed before the filing of the
Non-resident found in the Philippines action for the exclusive venue.
a. Personal action: where the nonresident defendant
may be found, as authorized by Sec. 2, Rule 4, but with Effects of Stipulation on Venue
an additional alternative venue, i.e., the residence of The parties may validly agree upon a specific venue which
any of the principal plaintiffs, pursuant to Secs. 2 and 3, could be in a place where neither of them resides, provided
Rule 4. [1 Regalado 121, 2010 Ed.] the following requisites are met: (WEB)
b. Real action: in the proper court which has jurisdiction 1) The agreement must be in Writing;
over the area wherein the real property involved, or a 2) There must be Exclusivity as to the selection of the
portion thereof is situated. [Sec. 1, Rule 4] venue; and
3) It must be made Before the filing of the action.
Non-resident not found in the Philippines, and the action
affects: In order for the agreement to be considered as a restriction
a. Personal status of plaintiff – where plaintiff resides, on venue, it must contain RESTRICTIVE WORDS or
or QUALIFIYING WORDS such as:
b. Property of defendant in the Philippines – where the  Exclusively;
property, or any portion thereof, is situated or found  Waiving for this purpose any other venue;
[Sec. 3, Rule 4]  Shall only be filed;
 To the exclusion of other courts
Example:  And other words of similar imports, such as
The Non-resident had a child here in the Philippines. The solely; nowhere else but or except.
child wants to be recognized. This already involves status
but the non-resident foreigner is no longer here in the According to the SC, even if the agreement or stipulation of
Philippines. Section 3 is applicable since it involves a person the parties contains the word “shall”, the same is construed
who does not reside and is not found in the Philippines to be merely permissive and the venue agreed upon is
which also includes the personal status of the plaintiff. Such considered as additional venue. There should be “shall only”
as his status being illegitimate or if it involves any of the to be considered exclusive. (legazpi v. Republic july 23,
property of the defendant located in the Philippines. Even if 2008)
he is just a tourist but has property, either personal or real,
the action may be commenced and tried in the court of the Read Case: AUCTION IN MALINTA, INC. vs. Loyade, G.R.
place where the plaintiff resides or the property or any No. 173979, Feb. 12, 2007 (Be sure to read this, because
portion thereof is located. this case cited different cases –Judge D)

Note: This does cover not personal actions such as Types of stipulations on venue
collection of sum of money which will not prosper because a. Restrictive: suit may be filed only in the place
our court cannot acquire jurisdiction over his person. agreed upon
Remember that the court can acquire jurisdiction of the b. Permissive: parties may file their suit not only in
person of the defendant through service of summons but the place agreed upon but also in the places fixed
those involving res (property) or status, the court need not by the rules [Briones v. CA and Cash Asia, G.R.
require the jurisdiction over the person of the defendant. No. 204444 (2015)]

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Requirement to be binding
To be binding, the parties must have agreed on the RULE 6
exclusive nature of the venue of any prospective action
KINDS OF PLEADINGS
between them. The agreement of parties must be restrictive
and not permissive [1 Regalado 124, 2010 Ed.]
Section 1. Pleadings defined.
In the absence of qualifying or restrictive words (e.g. Pleadings are the written statements of the respective claims
“only/solely/exclusively in such court”), venue stipulation is and defenses of the parties submitted to the court for
merely permissive; that is, the stipulated venue is in addition appropriate judgment. (1)
to the venue provided for in the rules [Polytrade Corp. v.
Blanco, G.R. No. L-27033 (1969)] Pleadings v. Motions

When stipulation may be disregarded Pleadings Motions

The court may declare agreements on venue as contrary to Purpose is to Application for
public policy if such stipulation unjustly denies a party a fair submit a claim or relief other than
opportunity to file suit in the place designated by the Rules. Purpose defense for by a pleading.
The court shall take into consideration the economic appropriate
conditions of the parties, the practical need to avoid judgment.
numerous suits filed against the defendant in various parts of Judgment, which Other reliefs that
the country and the peculiar circumstances of the case [1 Relief sought by its character are not included
Regalado 124-125, 2010 Ed., citing Hoechst Philippines v. finally disposes of in a judgment.
Torres, G.R. No. L44351 (1978)] the case.

A complaint directly assailing the validity of the written Ultimate facts are essential facts constituting the plaintiff’s
instrument itself should not be bound by the exclusive venue cause of action. A fact is essential if it cannot be stricken out
stipulation contained therein and should be filed in without leaving the statement of the cause of action
accordance with the general rules on venue. [Briones v. CA insufficient [Remitere v. Montinola, G.R. No. L-19751 (1966)]
and Cash Asia, G.R. No. 204444 (2015)]
Prior to the Amended Rules, evidentiary facts were
Contracts of Adhesion supposed to be omitted from pleadings, as these matters
It is not prohibited but the factual circumstances of the case should be presented during trial. However, the contents of
must be carefully scrutinized. If there are ambiguities of pleadings are no longer limited to ultimate facts since under
those contracts, the same shall be construed against the Sec. 6, Rule 7, the witnesses, summaries of their
party who prepared such contract. testimonies, their judicial affidavits, and documentary and
object evidence should already be included in the pleading.
Note: The SC has the power to order the change of venue, Likewise, Sec. 1 of Rule 8 also states that every pleading
either in civil cases or criminal cases, to avoid miscarriage of must contain the ultimate facts, including the evidence on
justice. Example is the criminal cases involving which the party pleading relies.
Maguindanao cases.

Only the Supreme Court not even the Court of Appeals has Section 2. Pleadings allowed.
the power to change the venue. The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)- party
complaint, or complaint-in-intervention.
RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS The defenses of a party are alleged in the answer to the
pleading asserting a claim against him or her.

An answer may be responded to by a reply only if the

Section 1. Uniform procedure
defending party attaches an actionable document to the
The procedure in the Municipal Trial Courts shall be the
answer. (2a)
same as in the Regional Trial Courts, except (a) where a
particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Pleadings allowed under the Rules of Court
Rule on Summary Procedure. (n) 1. Complaint
2. Answer
3. Counterclaim
4. Cross claim
Section 2. Meaning of terms 5. Reply
The term "Municipal Trial Courts" as used in these Rules 6. Third party (fourth party, etc.) complaint (Rule 2,
shall include Metropolitan Trial Courts, Municipal Trial Courts Sec. 6)
in Cities, Municipal Trial Courts, and Municipal Circuit Trial 7. Complaint in intervention, answer in intervention
Courts. (1a) (Rule 19. Sec. 3)

35 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

A. COMPLAINT  Residence – determines venue. It is also important for

purposes of serving summons especially on the part of
The complaint is the pleading alleging the plaintiff’s or the defendant, sending notices or copies the orders
claiming party’s cause or causes of action. [Sec. 3, Rule 6] from the court.

Section 3. Complaint.
The complaint is the pleading alleging the plaintiff’s or Par.2; Cause of Action
claiming party’s cause or causes of action. The names and Sometime on January 15, 2015 the defendant
residences of the plaintiff and defendant must be stated in obtained a loan from the plaintiff in the amount of 200,000.00
the complaint. with monthly interest of 2%. Such loan was payable in 1 year
on or before February 15, 2016. A copy of the promissory
It should contain a concise statement of the ultimate facts note is attached.
constituting the plaintiff’s cause of action. The jurisdiction of
the court and the nature of the action are determined by the This is an example of how you’re going to allege a claim
averments in the complaint. (Fort Bonifacio Dev.Corp v. based on an actionable document.
Domingo, GR No. 180765, Feb.27, 2009)
The gist of the document is alleged and a copy of the
Complaint must state the rights of the plaintiff, the document is attached. That is one way of alleging a claim
obligations of the defendants, the cause, the action or based on an actionable document.
omission of the defendants which violate the rights of the
plaintiff and the damage caused by the act or omission of the When due date came, defendant failed to pay
defendant. If your complaint does not state a cause of action despite oral and written demand.
even if you have a cause of action, it shall be dismissed for
failure to state your cause of action. That is now the omission that resulted to the violation of the
right of the plaintiff.
Facts alleged in the complaint are judicial admissions that
bind the plaintiff and may be the basis to dismiss the
That due to the stubborn refusal of the defendant
complaint [Luzon Development Bank v. Conquilla, G.R. No.
to pay his just loan, the plaintiff is compelled to seek the
163338 (2005)].
services of a lawyer whom is committed to pay P50,000 as
acceptance fee plus P3,000 per court appearance.
Allegation of the Cause of Action or Defense based on
Actionable Document
That due to the refusal of the defendant to pay his
loan, the plaintiff suffers sleepless nights and mental anguish
Rule 8, Sec.7 - Action or defense based on
to which the defendant should be required to pay in the
document.
amount of 100,000.
Whenever an action or defense is based upon a
written instrument or document, the substance of
Now that is the claim for damages.
such instrument or document shall be set forth in
the pleading, and the original or a copy thereof
shall be attached to the pleading as an exhibit,
B. ANSWER
which shall be deemed to be a part of the
pleading.
Section 4. Answer
Actionable Document - a document or an instrument An answer is a pleading in which a defending party sets forth
wherein a claim of a party or a defense of a party is based. his or her defenses. (4a)
 Promissory note (plaintiff)
 Receipts (defense)  After filing of the complaint, defendant will then answer.
 It may be an answer to the complaint, third party (fourth
How to Allege an Actionable Document party, etc.) complaint, counterclaim, or cross claim.
1. Allege the substance; and
2. Attach a copy or original of the document or How to Answer a Claim
written instrument.
There are two kinds of defenses under Sec.5
Example:
Section 5. Defenses.
Par.1 Defenses may either be negative or affirmative.
Plaintiff X, is of legal age, married, a Filipino and a
resident of Katipunan St.,Cebu City. Defendant Y is likewise a) A negative defense is the specific denial of the material
of legal age, married, a Filipino and a resident of Mandaue fact or facts alleged in the pleading of the claimant
City. essential to his or her cause or causes of action.

So why are these allegations important? b) An affirmative defense is an allegation of a new matter
 Legal age – shows the legal capacity of the parties. If which, while hypothetically admitting the material
you omit that one, your case will be dismissed. allegations in the pleading of the claimant, would

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nevertheless prevent or bar recovery by him or her. The  If you don't follow the proper way of denying, your
affirmative defenses include fraud, statute of limitations, denial will be considered as an admission. Your denial
release, payment, illegality, statute of frauds, estoppel, is considered as a general denial.
former recovery, discharge in bankruptcy, and any  A General Denial is considered as an admission.
other matter by way of confession and avoidance.  The defendant should follow the rules on how to make
a Specific Denial.
Affirmative defenses may also include grounds for the  Using the words “specifically denied” is not a specific
dismissal of a complaint, specifically, that the court has no denial. The requisites in sec.10, rule 8 must be
jurisdiction over the subject matter, that there is another followed.
action pending between the same parties for the same
cause, or that the action is barred by a prior judgment. (5a) NOTE: The defendant must specifically deny the material
allegations AND alleges or sets forth the facts which he
1. NEGATIVE DEFENSE claims to be true.

 Specific denial of the material fact or facts alleged in the Par.2

pleading of the claimant essential to his or her cause or Sometime on January 15, 2015 the defendant
causes of action. obtained a loan from the plaintiff in the amount of
P1,000,000.00 with monthly interest of 2%. Such loan was
payable in 1 year on or before February 15, 2016.
Rule 8, Section 10. Specific denial.
A defendant must specify each material allegation of Questions:
fact the truth of which he or she does not admit and, 1. What if it’s not true that he obtained such loan, how will
whenever practicable, shall set forth the substance of he deny it? Is this enough?
the matters upon which he or she relies to support his - “The defendant specifically denies the allegations
or her denial. Where a defendant desires to deny only a in paragraph 2 that he obtained a loan from the
part of an averment, he or she shall specify so much of defendant because the truth of the matter is that
it as is true and material and shall deny only the the amount he received was a donation”
remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a 2. Is that enough that you merely mention “specifically
material averment made to the complaint, he or she denies?”
shall so state, and this shall have the effect of a denial. - No. You should state the truth. If you merely
mention “specifically denies” that is an admission.
So, one rule is each material allegation must be
specifically denied. That is, if the defendant will not admit,
he must specifically deny such material allegation. Rules on How to make Specific Denial / Three kinds of
Otherwise, if not properly denied, the effect would be Specific Denials
admission.
1. Specifically deny each material allegation, the truth
Example: of which he does not admit and set forth the
substance on the matter upon which he relies to
Par.1 support his denial. (Absolute Denial)
Plaintiff X, is of legal age, married, a Filipino and a
resident of Katipunan St.,Cebu City. If he will admit, then there is no problem. He just have to
state, "paragraph 1 is admitted", and paragraph 2 is admitted
Suppose the defendant knows that the plaintiff is not a and so on.
resident of Cebu City but of Tacloban, so what will the
defendant do? Deny it. Likewise, if the personal What will happen next? The Court will now render a decision
circumstances of the defendant are not true, all the based on the pleadings, because everything is now
defendant has to do is to deny it. How? admitted. The case is now ready for decision.
How to deny?
The defendant specifically denies the allegations The defendant specifically denies the allegation in par.2 that
in paragraph 1, stating that the plaintiff is a resident of Cebu he obtained a loan from the plaintiff because the truth of the
City because the truth of the matter is the plaintiff is actually matter is that the amount received was donation.
residing in Tacloban.
2. Partial denial
The personal circumstances of the defendant are
likewise specifically denied because the truth of the matter  Partial denial and partial admission.
is______(state the truth).  Made when the defendant does not make a total denial
of the material allegations, but denies only a part of the
averment. Here, he specifies which part of the truth he
 If you will only say that "paragraph 1 is denied", that is
admits and likewise denies.
admission.
 Using the words “specifically denied” is not a specific
denial.

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Example: The defendant admits the allegation in paragraph NEGATIVE PREGNANT

2 as regards with the personal circumstances of the
defendant, but specifically denies the rest of the allegation Is a form of denial which contains admission of the
as regards the personal circumstances of the plaintiff allegations or claim in the pleading being responded to. It is
because the truth of the matter is the plaintiff is still a minor a denial pregnant with admission. (Judge D)
and he is not a resident of Cebu City, but in Tacloban. That
is one way of making a specific denial by making a partial A form of denial, pregnant with the admission of the
specific denial. substantial facts in the pleading responded to which are not
squarely denied. It is in effect an admission of the averment
3. Allege that the defendant has no knowledge or it is directed to. [Philamgen v. Sweet Lines, G.R. No. 87434
information as to the truth of the allegation (Denial (1993)]
through Disavowal of Knowledge)
A negative pregnant does not qualify as a specific denial. It
 Made when the defendant alleges he “is without is conceded to be actually an admission. It refers to a
knowledge or information sufficient to form a belief as to denial which implies its affirmative opposite by seeming to
the truth of the material averments in the complaint” deny only a qualification or an incidental aspect of the
 This has to be made in good faith, OW that would be allegation but not the main allegation itself [1 Riano 358,
considered as an admission. 2014 Bantam Ed.]

Example: If the plaintiff would say: Example:

“Due to the stubborn refusal of the defendant to  If you are accused of lending P200K, then you'll say “It
pay his loan, the plaintiff suffered sleepless nights, is not true that I borrowed P200K." That is a negative
mental anguish...." pregnant. Why? Because it could mean that you really
didn't borrow P200K, but instead you borrowed P300K.
How are you going to make a specific denial? This is how
you are going to deny such allegation:  If you say “it is not true that I have 100 bank accounts,
“The defendant has no knowledge or information because the truth is that I only have 80 secret bank
as to the veracity of the allegation in paragraph 4, accounts.” That is a negative pregnant.
therefore deny."
 When the defense alleges “I have never borrowed
Lack of knowledge or information in good faith has the effect money from the plaintiff from 2011 to 2013,” such may
of specific denial under Sec.10, Rule 8. imply that there was borrowing of money at other times.

Note: This kind of specific denial must be made in good faith  A negative pregnant too is respondent’s denial of
because if the defendant would say that he has no having personal knowledge of Irene’s daughter
knowledge on certain allegation but in reality such allegation Samantha Louise Irene Mojes Certificate of Live Birth.
is within his knowledge that is considered as admission and In said certificate, Irene named respondent, a lawyer,
would be considered as denial in bad faith. 38 years old as the child’s father. And the phrase NOT
MARRIED is entered on the desired information on
Example: Take note DATE AND PLACE OF MARRIAGE. A comparison of
In paragraph 2, the defendant obtained a loan and you the signature attributed to Irene in the certificate with
would say that the defendant has no knowledge as to the her signature on the Marriage Certificate shows that
allegation in par. 2 that is considered as bad faith. That is they were affixed by one and the same person. Notatu
considered as an admission. Wouldn't you know if you have dignum is that, as the Investigating Commissioner
borrowed money or not? That is within your knowledge if you noted, respondent never denied being the father of the
have borrowed money or not. If you simply say that the child.
defendant has no knowledge that is in bad faith and will be
considered as an admission. Guevarra vs. Eala, Aug 1, 2007
Indeed, from respondents answer, he does not deny carrying
So if you are going to use lack of knowledge as to the on an adulterous relationship with Irene, adultery being
veracity of the allegation, then you should have no defined under Art. 333 of the Revised Penal Code as that
knowledge or information about it. If that allegation is within committed by any married woman who shall have sexual
your knowledge, that kind of denial is considered as an intercourse with a man not her husband and by the man who
admission. has carnal knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void. What
Effect: If the allegation is neither admitted nor denied it is respondent denies is having flaunted such relationship, he
deemed admitted. maintaining that it was low profile and known only to the
immediate members of their respective families. In other
Section 11. Allegations not specifically denied words, respondent’s denial is a negative pregnant.
deemed admitted.
Material averments in a pleading asserting a claim It was a denial pregnant with the admission of the substantial
or claims, other than those as to the amount of facts in the pleading responded to which are not squarely
unliquidated damages, shall be deemed admitted denied. It was in effect an admission of the averments it was
when not specifically denied. directed at.

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Example: If X signed a promissory note, the document is

Stated otherwise, a negative pregnant is a form of negative genuine because the signature of Mr. X is really his
expression which carries with it in affirmation or at least an signature. It is not falsified. Here signature is not counterfeit.
implication of some kind favorable to the adverse party. It is Supposed when Mr. X signed the PN he was under duress,
a denial pregnant with an admission of the substantial facts under influence, could you say that the document was duly
alleged in the pleading. Where a fact is alleged with executed? No, when you say genuine, the document is not
qualifying or modifying language and the words of the falsified, it is authentic.
allegation as so qualified or modified are literally denied, it
has been held that the qualifying circumstances alone are Due Execution, it means it was not executed under duress,
denied while the fact itself is admitted. under influence, under threat-meaning it was executed
voluntarily.
Summary: Instances of Admission
1. General Denial Suppose he cannot or will not deny under oath or did not
2. Negative Pregnant verify the answer then the actionable document is deemed
3. Denial in Bad Faith – when you only state lack of admitted.
knowledge or information, the same must be made
in good faith. Otherwise, it is considered an ----00----
admission.
4. When an allegation is neither admitted nor denied If an actionable document is not properly denied under
the presumption is admitted. oath, the due execution and genuineness are deemed
admitted.
----00---- How would the defendant properly deny?

How to Deny Actionable Document "the defendant specifically denies the allegation in
If the claim is based on actionable document refer to Rule 8, par. 2 because the truth of the matter is that his signature
Sec.8. appearing on the note is falsified"

Rule 8, Section 8. How to contest such Answer must be Verified

documents.
When an action or defense is founded upon a Rule: An answer need not be verified. There are instances
written instrument, or attached to the where an answer should be verified, one of which is when
corresponding pleading as provided in the that answer specifically denies an allegation or claim based
preceding section, the genuineness and due on actionable document
execution of the instrument shall be deemed
admitted unless the adverse party, under oath Example: Defendant
specifically denies them, and sets forth what he or
she claims to be the facts; but the requirement of Par. 2 is admitted but with qualification that the
an oath does not apply when the adverse party loan has been fully paid. A copy of receipts are attached as
does not appear to be a party to the instrument or Annex A
when compliance with an order for an inspection
of the original instrument is refused. Now the defense is based on actionable document, the
plaintiff should file a reply and the reply should be under
Note: When a claim or defense is based on an actionable oath, if the plaintiff would deny the genuineness and due
document in order to be sufficient, it should be under oath. execution of the receipts and set forth the truth.
Aside from denying under oath, the adverse party should set
forth what it claims to be the facts.

Example: promissory note can be an actionable document

attached to the complaint; or a receipt can be an actionable Due execution and genuiness not tantamount to liability
document attached in an answer. An actionable document if not properly denied – the due
execution and genuineness are deemed admitted.
"Must be specifically denied under oath"
The pleading such as an answer or reply must be verified. If Q: Does that mean that defendant would be liable if he
it is not verified, the due execution and the genuineness of will not deny under oath?
the document are deemed admitted. A: No. because it is only the genuineness and due execution
----00---- that are deemed admitted if under oath.

Genuineness vs. Due Execution Q: Suppose the action of the plaintiff has been
prescribed. Can he still make such defense that the
Genuineness of the document means that the signature action has prescribed? Or that his loan has been paid,
appearing there is really that of the party. The document is can he still raise such defense?
not falsified. The signature of the party is really genuine.
A: Yes, because if an actionable document is not properly
denied it is only the genuineness and due execution of the

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

actionable document are deemed admitted. Other defenses

such as prescription and payment are not admitted nor Further discussion on affirmative defenses under 4.
waived. In other words, other defenses are still present. Only Allegations in a Pleading.
the objections as to the genuineness or due execution of the
document are deemed waived.
Section 6. Counterclaim.
NOTE: A counterclaim is any claim which a defending party may
Under Oath NOT Required have against an opposing party.
a) Requirement of denying under oath is not applicable to
an adverse party who does not appear to be a party to  Counterclaim is a separate pleading. But the same
the instrument. could be joined in an answer.
o If he is not a party to the instrument, he is not  Answer is another pleading. When the defendant files
obliged to deny under oath. his answer, instead of making another pleading, he can
incorporate this counterclaim in the same pleading. So
b) When the adverse party asked for an inspection of the he can file an answer with counterclaim.
original document, but such request was refused, such
requirement will not also apply. Kinds of Counterclaim:
a) Compulsory Counterclaim
c) When such document is not an actionable document, b) Permissive Counter Claim
then that requirement will not apply.

Example: The copy of the demand letter is attached as

Section 7. Compulsory counterclaim.
Annex B. A demand letter is not an actionable document.
A compulsory counterclaim is one which, being cognizable
Therefore, a copy of a demand letter may or may not be
by the regular courts of justice, arises out of or is connected
attached.
with the transaction or occurrence constituting the subject
 Other defenses are still available such as
matter of the opposing party's claim and does not require for
payment, prescription, estoppel, etc.
its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. Such a counterclaim must
2. AFFIRMATIVE DEFENSE
be within the jurisdiction of the court both as to the amount
and the nature thereof, except that in an original action
This is like justifying/exempting circumstance. You admitted
before the Regional Trial Court, the counterclaim may be
the act but you raised matters which would relieve you from
considered compulsory regardless of the amount. A
liability.
compulsory counterclaim not raised in the same action is
barred, unless otherwise allowed by these Rules.
An affirmative defense is an allegation of a new matter
which, while hypothetically admitting the material allegations
NOTE: This must be included in the answer. Otherwise, it is
in the pleading of the claimant, would nevertheless prevent
already barred. That why it is considered compulsory.
or bar recovery by him or her.

The affirmative defenses include fraud, statute of limitations,

A. COMPUSLORY COUNTERCLAIM
release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any other
Requisites:
matter by way of confession and avoidance.
1) It arises out of or is connected with the transaction
or occurrence constituting the subject matter of the
Affirmative defenses may also include grounds for the
opposing party's claim.
dismissal of a complaint, specifically:
1. That the court has no jurisdiction over the subject
A compulsory counterclaim necessarily arises out of the
matter;
same transaction or of the same contract which is the
2. That there is another action pending between the
subject matter of the case.
same parties for the same cause (lis pendens), or
3. That the action is barred by a prior judgment.(res
Example:
judicata) [Sec. 5 (b), Rule 6]
 Mr. X files a claim for damages against Y for bumping
his car. In his answer with counterclaim, Mr. Y denied to
Note:
be the negligent party and pointed instead Mr. X as the
 No more Motion to dismiss under the New Amendment.
one negligent during the incident. And because of that
So allege these 3 grounds as affirmative defenses.
according to Mr. Y, his motor vehicle was damaged.
 Grounds under Motion to dismiss are considered now
And he asked the court to dismiss the complaint of Mr.
as affirmative defenses.
X and instead require Mr. X to be held the amount of
 The foregoing three (3) grounds need not be included in
500,000 representing the value of the damages of the
the answer due to the use of the word “may”. Also note
motor vehicle.
that these grounds for dismissal (in addition to statute
of limitations) may still be raised at any time since they
You notice the claim of Mr. Y is connected to the claim
are not waivable. [Sec. 1, Rule 9 in relation to Sec. 12
of Mr. X. That is the example of compulsory
(a), Rule 15]

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counterclaim, when the details are necessarily However, an exception to this would be a counterclaim
connected to the subject of the case. by amendment before judgment, when the counterclaim
was not set up due to oversight, inadvertence, or
 What about if Mr. X files a claim for damages against excusable neglect. [Sec. 10, Rule 11]
Mr. Y for the amount of 500,000 because Mr. Y damage
his car thru his reckless driving. According to Mr. Y,  Compulsory Counterclaim arising after Answer - A
although he is liable, Mr. X owns him 1Million because counterclaim, which either matured or was acquired by
Mr. X did not pay his loan he obtained 5 years ago. a party after serving his answer may, with permission of
the court, be presented as a counterclaim by
Notice that the loan is in a separate transaction, which supplemental pleading before judgment. [Sec. 9,
is an example of permissive counterclaim. Rule 11]

2) One must be cognizable by the regular courts of On amounts

justice. 1. In an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
Example: If the claim of defendant is based on illegal amount. [Sec. 7, Rule 6]
dismissal that is not a compulsory counterclaim because
such claim is not cognizable by court of justice but of NLRC. 2. If a counterclaim is filed in the MTC in excess of its
jurisdictional limits, the excess is considered waived.
3) A compulsory counterclaim does not require for its [Agustin v. Bacalan, G.R. No. L-46000 (1985)]
adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. Gojo v. Goyala, G.R. No. L-26768 (1970)
A plaintiff who fails or chooses not to answer a compulsory
4) The Counterclaim must be within the jurisdiction of counterclaim may not be declared in default, principally
the court both as to the amount and the nature because the issues raised in the counterclaim are deemed
thereof, except that in an original action before the automatically joined by the allegations in the complaint.
Regional Trial Court, the counter-claim may be
considered compulsory regardless of the amount. Judge D: Suppose the defendant denies the claim and
states in his answer that by reason of filing of this baseless
Example: Mr X files a case for damages against Mr. Y for complaint of the plaintiff, the herein defendant has suffered
bumping his car. The amount of damages he asked is sleepless nights, mental anguish besmirched reputation, to
200,000. Mr. Y in his answer denied to be liable and instead which the plaintiff must be required to pay damages of moral
pointed Mr. X as negligent for a claim 400,000 as damage damages, exemplary damages and etc. what kind of
for his car. Is this considered a compulsory counterclaim? counterclaim is that?
No. The complaint is in the jurisdiction of first level court.
That is compulsory counterclaim. One of the characteristics
What about if it is the reverse? It is the claim of Mr. X which of such is that it must necessarily arises out of the same
400,000 so under RTC. And the claim of Mr. Y is 200,000. transaction or cause of action of the plaintiff.
Does the court have jurisdiction? Yes because the complaint
is under RTC, so the amount of the counterclaim is Q: C filed a case for damages based on tort against D in
immaterial. the amount of P250,000 in the MTCC-Cebu City for the
damages done to the former’s car in a vehicular incident
5) It is already in Existence at the time that the involving them. D filed his answer to the complaint with
defending party files his answer. the counterclaim against C alleging that it was C who
was negligent which caused damage to his (D) car in the
amount of P400,000. Is the filing of D’s counterclaim
proper?
Worchester v. lorenza 104Phil 234 A: No, because the court where the case was filed has no
A compulsory counterclaim need not be answered. jurisdiction over the amount of the counterclaim.

How raised:
1. By including it in the Answer B. PERMISSIVE

 A compulsory counterclaim or a cross-claim that a A counterclaim is permissive if it does not arise out of, nor is
defending party has at the time he or she files his or her necessarily connected with, the subject matter of the
answer shall be contained therein. [Rule 11, Sec. 8] opposing party’s claim. This is not barred even if not set up
in the action. [1 Herrera 686, 2007 Ed.] Basically, a
2. By filing after the Answer permissive counterclaim is one where any of the
aforementioned requirements of a compulsory counterclaim
 Omitted Compulsory Counterclaim - If a are missing. [1 Riano 320, 2016 Bantam Ed.]
counterclaim already existed at the time of the filing of
the answer and the defendant fails to raise it, it shall The rule in a permissive counterclaim is that for the trial
generally be barred. [Sec. 7, Rule 6] court to acquire jurisdiction, the counterclaimant is bound to
pay the prescribed docket fees. [1 Riano 387, 2014 Bantam

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Ed., citing GSIS v. Heirs of Caballero, G.R. No. 158090 [1 Riano 385-387, 2014 Bantam Ed.]
(2010)]

Note: Even if the counterclaim arises out of the subject- Section 8. Cross-claim.
matter of the opposing party's claim but it is not within the A cross-claim is any claim by one party against a co-party
jurisdiction of the regular courts of justice, or it requires for arising out of the transaction or occurrence that is the
its adjudication the presence of third parties over whom subject matter either of the original action or of a
the court cannot acquire jurisdiction, it is considered as counterclaim therein. Such cross-claim may cover all or part
only a permissive counterclaim and is not barred even if of the original claim.
not set up in the action. (see also Sec. 2, Rule 9) [1
Regalado 143-144, 2010 Ed.]
Existing Cross-claim - A cross-claim that a defending party
has at the time he or she files his or her answer shall be
Effect on counterclaim when complaint is dismissed contained therein. [Sec. 8, Rule 11]
The dismissal of the complaint shall be without prejudice to
the prosecution in the same or separate action of a A cross-claim may be partial or entire as regards the original
counterclaim pleaded in the answer in the following cases: claim.

1. Dismissal under Sec. 2, Rule 17 – where the plaintiff However, an exception to this would be a cross-claim by
files a motion to dismiss the case, after the defendant amendment before judgment, when the counterclaim was
had filed a responsive pleading. not set up due to oversight, inadvertence, or excusable
neglect. [Sec. 10, Rule 11]
2. Dismissal under Sec. 3, Rule 17 – where the complaint
is dismissed due to the fault of the plaintiff. Cross-claim arising after Answer - A cross-claim, which
either matured or was acquired by a party after serving his
Compulsory Counterclaim Permissive Counterclaim answer may, with permission of the court, be presented as a
As to Basis cross-claim by supplemental pleading before judgment.
[Sec. 9, Rule 11]
A compulsory counterclaim, Not subject to the rule on
which a party has at the time compulsory counterclaims. When a cross-claim is proper
the answer is filed, shall be Hence, it may be set up as 1. It arises out of the subject matter of the complaint.
contained in the answer an independent action and 2. It is filed against a co-party.
[Sec. 8, Rule 11] otherwise, will not be barred if not 3. The cross-claimant stands to be prejudiced by the
shall be barred, unless contained in an answer to filing of the action against him
otherwise allowed by these the complaint. [Londres v. CA, G.R. No. 136427 (2002)]
rules. [Sec. 7, Rule 6]
Improper cross-claims
As to whether it is Initiatory or not
1. Where the cross-claim is improperly allowed, the
remedy is certiorari [Malinao v. Luzon Surety, G.R.
Not an initiatory pleading. Initiatory pleading. No. L-16082 (1964)]
2. The dismissal of a cross-claim is unappealable
As to Docket Fees when the order dismissing the complaint becomes
Does NOT require payment Requires the payment of final and executory [Ruiz, Jr. v. CA, G.R. No.
of docket fees. docket fees. 101566 (1993)]
3. A cross-claim is not allowed after declaration of
As to requirement of certification against default of cross-claimant. To allow the cross-claim
Forum Shopping to remain would be tantamount to setting aside the
order of default the cross-claimant, who had been
Should be accompanied by previously declared default, would re-obtain a
Said certifications are not a certification against forum standing in court as party litigant [Tan v.
required. shopping and, whenever Dimayuga, G.R. No. L-15241 (1962)]
required by law, also a
certificate to file action
issued by the Lupong Section 9. Counter-counterclaims and counter-cross-
Tagapamayapa claims.
A counterclaim may be asserted against an original
As to Necessity of Answer
counterclaimant.
Need not be answered. Must be answered by the
Failure to answer a party against whom it is A cross-claim may also be filed against an original cross-
compulsory counterclaim is interposed, otherwise he claimant.
not a cause for a default may be declared in default
declaration. as to the counterclaim
Counterclaim – is a claim by the defendant.

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

 Defendant ni counterclaim sa plaintiff then counter- admission of the aforementioned matters. [1 Riano 336,
counterclaim by plaintiff to defendant. 2016 Bantam Ed.]

Section 10. Reply. Section 11. Third, (fourth, etc.)-party complaint.

All new matters alleged in the answer are deemed A third (fourth, etc.)-party complaint is a claim that a
controverted. If the plaintiff wishes to interpose any claims defending party may, with leave of court, file against a
arising out of the new matters so alleged, such claims shall person not a party to the action, called the third (fourth, etc.)-
be set forth in an amended or supplemental complaint. party defendant for contribution, indemnity, subrogation or
However, the plaintiff may file a reply only if the defending any other relief, in respect of his or her opponent's claim.
party attaches an actionable document to his or her answer.
The third (fourth, etc.)-party complaint shall be denied
A reply is a pleading, the office or function of which is to admission, and the court shall require the defendant to
deny, or allege facts in denial or avoidance of new matters institute a separate action, where: (a) the third (fourth, etc.)
alleged in, or relating to, said actionable document. party defendant cannot be located within thirty (30) calendar
days from the grant of such leave; (b) matters extraneous to
In the event of an actionable document attached to the reply, the issue in the principal case are raised; or (c) the effect
the defendant may file a rejoinder if the same is based would be to introduce a new and separate controversy into
solely on an actionable document. the action.

REPLY Requisites:
A reply is a pleading, the office or function of which is to 1. The party to be impleaded must not yet be a party to
deny, or allege facts in denial or avoidance of new matters the action;
alleged in, or relating to actionable documents attached to 2. The claim against the third-party defendant must belong
an answer. This is so, because under the Amended Rules, to the original defendant;
the plaintiff may file a reply only if the defending party 3. The claim of the original defendant against the third-
attaches an actionable document to his or her answer. party defendant must be based upon the plaintiff's claim
against the original defendant;
Note: The function of a reply is to merely deny the 4. The defendant is attempting to transfer to the third-party
allegations raised in the answer with the actionable defendant the liability asserted against him by the
document, not to impose new causes of action which arise original plaintiff [Philtranco Service Enterprises, Inc. v.
from the answer. Paras, G.R. No. 161909 (2012)], and
5. The court grants leave of court for the filing of the
If the plaintiff wants to interpose a new claim on the basis of same.
the actionable document attached in the answer, he should
do this through an amended or supplemental complaint. Example:
Mr. Y owns a car. He sold this car to Mr. A. While Mr. A is
1. The amended complaint must be with leave of court driving a car, after executing deed of sale, Mr. A drove this
following Sec. 3, Rule 10. car in the province, Mr. A hit Mr. X. A witness saw the plate
2. The supplemental complaint is allowed only if it pertains number. The car still registered under the name of Mr. Y as
to transactions, occurrences, or events which have found out in the LTO. Mr. X files a case for damages against
happened since the date of the complaint following Sec. Mr. Y.
6, Rule 10.
Now the remedy of Y is to bring Mr. A into the case. This is
A reply is not the proper responsive pleading to a now called and third-party complaint. So, Mr. Y can file a
counterclaim or a cross-claim, as the proper responsive motion for leave of court to file Third-party complaint against
pleading would be an answer to the counterclaim/cross- Mr. A. But the file of third-party complaint is not a matter of
claim, Sec.13, Rule 6. [1 Riano 335, 2016 Bantam Ed.] right. It has to be with leave of court which means with
permission from the court. And the court may or may not
If an actionable document is attached to the reply, the allow a third-party complaint.
defendant may file a rejoinder. The rejoinder must only
deny, or allege facts in denial or avoidance of the new Purpose of Third-party Complaint
matters alleged in actionable document attached to the To avoid multiplicity of suit, so that Mr. Y can ask
reply. [Sec. 10, Rule 6] reimbursement from Mr. A or the court may ask directly Mr.
A to pay Mr. X for the damages.
General Rule: There is no need to file a reply since all new
matters alleged in the answer are deemed controverted. What is that fourth-party complaint? So if Mr. A sold again
[Sec. 10, Rule 6] the car to another. So the new owner sold again, that is fifth-
party plaintiff, and so on
Exception: When an actionable document is attached to the
answer, the plaintiff must file a reply in order to avoid the When the third (fourth, etc.) party complaint will not be
admission of the genuineness and due execution of the granted leave, and the court will require the filing of a
document attached. Failure to file a reply would lead to the separate action:

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

1) Where matters extraneous to the issue in the principal was not a party to the case proper? The answer is SECTION
case are raised, or 12 RULE 6.
2) Where a new and separate controversy would be
introduced in the action. Yes, according to the sapugay v. ca march 21, 1990.

Additional rules Section 13. Answer to third (fourth, etc.)-party

Where the trial court has jurisdiction over the main case, it complaint.
also has jurisdiction over the third-party complaint, A third (fourth, etc.) party defendant may allege in his or her
regardless of the amount involved as a 3rd-party complaint answer his or her defenses, counterclaims or cross-claims,
is merely auxiliary to and is a continuation of the main action. including such defenses that the third (fourth, etc.)-party
[Republic v. Central Surety, G.R. No. L27802 (1968)] plaintiff may have against the original plaintiff's claim. In
proper cases, he or she may also assert a counterclaim
A third-party complaint is not proper in an action for against the original plaintiff in respect of the latter's claim
declaratory relief. [Commissioner of Customs v. Cloribel, against the third-party plaintiff.
G.R. No. L-21036 (1977)]
 Just like an answer to a complaint. In other words a
Read the case of: third party may file a case against an original plaintiff.
 Saludaga vs FEU April 30, 2008 Still answered within 30 days.
 Tayaw vs Mendoza April 12, 2005.
 PCI Leasing and Finance Inc vs UCPB July 4, ----00----
2008 – the case of that registered owner of the
vehicle who was liable EXTENSIONS OF TIME TO FILE
 Cardiente v. Martas Nov.14, 2008 – fourth party
complaint. General Rule: A motion for extension to file any pleading is
prohibited and is considered a mere scrap of paper. [Sec.
Complaint-in-Intervention 11, Rule 11]
Intervention is a remedy by which a third party, not originally
impleaded in a proceeding, becomes a litigant therein to A motion for extension of time to file pleadings, affidavits, or
enable him to protect or preserve a right or interest which any other papers is a prohibited motion and shall not be
may be affected by such proceeding. [Restaurante Las allowed. [Sec. 12 (e), Rule 15]
Conchas v. Llego, G.R. No 119085, 1999]
Exception: A motion for extension of time to file an answer
If the purpose of the motion for intervention is to assert a may be allowed if:
claim against either or all of the original parties, the pleading 1. For meritorious reasons,
shall be called a COMPLAINT-IN-INTERVENTION. 2. For a period not more than 30 calendar days, and
3. A party may only avail of 1 motion for extension.
The intervenor shall file a complaint-in-intervention if he
asserts a claim against either or all of the original parties, or The court may still allow, in its discretion, any other pleading
an answer-in-intervention if he unites with the defending to be filed after the time fixed by the Rules. [Sec. 11, Rule
party in resisting a claim against the latter. (Rule 19, Sec. 3) 11]

The answer to the complaint-in-intervention shall be filed

within fifteen (15) days from notice of the order admitting the Pleadings under The 2016 Revised Rules of Procedure
same, unless a different period is fixed by the court. (Rule for Small Claims
19, Sec. 4)
Pleadings allowed in small claims cases:
1. Statement of claim
Section 12. Bringing new parties. 2. Response
When the presence of parties other than those to the original 3. Counter-claim in the response
action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court Note: The Rule of Procedure for Small Claims Cases
shall order them to be brought in as defendants, if provides that the defendant may also elect to file a
jurisdiction over them can be obtained. counterclaim against the plantiff that does not arise out of
the same transaction or occurrence, provided that the
Section 12 is similar to third party complaint, the difference is amount and nature thereof are within the coverage of
that the defendant in a third party complaint is only brought aforesaid Rule and the prescribed docket fees and other
after asking a permission from the court (requires leave of legal fees are paid. Thus, permissive counterclaim is allowed
court). subject to the limitation stated.

Case: Mobile Philippines filed a case against its gasoline Forms

dealer, the defendant dealer filed a counter claim with (a) A small claims action is commenced by filing with the
damages against Mobile Philippines and included the court an accomplished and verified Statement of
manager who is not a plaintiff. So the question was, is the Claim (Form 1-SCC) in duplicate, accompanied by a
inclusion of the manager of Mobile Philippines, although he Certification Against Forum Shopping, Splitting a

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

Single Cause of Action, and Multiplicity of Suits Prohibited Pleadings and Motions or Petitions
(Form 1-A-SCC) [Sec. 6] 1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of lack of
(b) The Summons to be served on the defendant shall be jurisdiction over the subject matter, or failure to comply
accompanied by a copy of the Statement of Claim/s with required barangay conciliation proceedings.
and documents submitted by plaintiff, and a blank 2. Motion for a bill of particulars
Response Form (Form 3-SCC) to be accomplished by 3. Motion for new trial, or for reconsideration of a
the defendant [Sec. 12]. The defendant shall file with judgment, or for reopening of trial
the court and serve on the plaintiff a duly accomplished 4. Petition for relief from judgment
and verified Response within a non-extendible period of 5. Motion for extension of time to file pleadings, affidavits,
10 days from receipt of summons [Sec. 13]. or any other paper
6. Memoranda
a. If at the time the action is commenced, the 7. Petition for certiorari, mandamus, or prohibition against
defendant possesses a claim against the any interlocutory order issued by the court
plaintiff that (a) is within the coverage of this 8. Motion to declare the defendant in default
Rule, exclusive of interest and costs; (b) 9. Dilatory motions for postponement
arises out of the same transaction or event 10. Reply
that is the subject matter of the plaintiff’s 11. Third-party complaints, and
claim; (c) does not require for its adjudication 12. Interventions [Sec. 19]
the joinder of third parties; and (d) is not the
subject of another pending action, the claim
shall be filed as a counterclaim in the RULE 7
Response; otherwise, the defendant shall be PARTS AND CONTENTS OF A PLEADING
barred from suing on the counterclaim.
Section 1. Caption.
b. The defendant may also elect to file a The caption sets forth the name of the court, the title of the
counterclaim against the plaintiff that does action, and the docket number if assigned.
not arise out of the same transaction or
occurrence, provided that the amount and The title of the action indicates the names of the parties.
nature thereof are within the coverage of this They shall all be named in the original complaint or petition;
Rule and the prescribed docket and other but in subsequent pleadings, it shall be sufficient if the name
legal fees are paid [Sec. 15]. of the first party on each side be stated with an appropriate
indication when there are other parties.

Prohibited Pleadings and Motions Their respective participation in the case shall be indicated.
1. Motion to dismiss the complaint except on the ground of
lack of jurisdiction
CAPTION
2. Motion for a bill of particulars
The caption sets forth the name of the court, the title of the
3. Motion for new trial, or for reconsideration of a
action, and the docket number if assigned.
judgment, or for reopening of trial
4. Petition for relief from judgment
Sets forth the ff:
5. Motion for extension of time to file pleadings, affidavits,
 Name of the court whether MTC, RTC
or any other paper
 Title of the action whether it’s for recovery of
6. Memoranda
possession, ejectment etc.
7. Petition for certiorari, mandamus, or prohibition against
 Title of the action indicates the name of the
any interlocutory order issued by the court
parties, plaintiffs, defendants because it is part of
8. Motion to declare the defendant in default
the title.
9. Dilatory motions for postponement
 Docket Number
10. Reply
11. Third-party complaints, and
The parties must all be named in the complaint. Verily,
12. Interventions [Sec. 14]
where there are 50 defendants, all of them must be named
in the title of the complaint. But in the subsequent pleadings,
like the answer, reply, or rejoinder, it is enough that the
Pleadings under The 1991 Revised Rule on Summary
name of the first party of each side be stated, without
Procedure
naming the others, and that such name be then followed by
the words “et al.”.
Allowed Pleadings
1. Complaints
“Et al.” is a scholarly abbreviation of the Latin phrase “et
2. Compulsory counterclaims pleaded in the Answer
alia,” which means “and others.” It is commonly used when
3. Cross-claims pleaded in the Answer; and
you don't want to name all the people or things in a list, and
4. Answers thereto [Sec. 3[A], II]
works in roughly the same way as “etc.”

In fine, it is only in the complaint where the names of all the

parties must be stated in the title. But in the following cases,

45 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

the names of all the parties need not be stated in the circumstances so far as that can be done with convenience.
complaint, viz: A paragraph may be referred to by its number in all
succeeding pleadings.
1) Class suit (Rule 3, Section 12);
2) When the identity or name of the defendant is unknown  Each paragraph must be denied or admitted.
(Rule 3, Section 14);  Each material allegation must be denied or admitted.
3) When you sue an entity without juridical personality  If there is a paragraph in complaint that was not denied
(Rule 3, Section 15); and or admitted it is deemed admitted.
4) If a party is sued in his official capacity. Official  The body must contain paragraphs and each paragraph
designation is sufficient. must be numbered.
 Each paragraph may constitute 1 sentence. Even if it is
Example: Renato M. Galeon vs. City Mayor of Cebu only one sentence it can be considered as paragraph.
(Unabia vs. City Mayor, 99 Phil. 253).  A paragraph is a statement of a single set of
circumstances.

Section 2. The body. A pleading is divided into paragraphs, sequentially

The body of the pleading sets forth its designation, the numbered, so that in the subsequent pleadings said
allegations of the party's claims or defenses, the relief paragraphs may just be alluded to by their respective
prayed for, and the date of the pleading. numbers. In the answer, for example, the defendant may just
state: “
(a) Paragraphs. — The allegations in the body of a pleading 1. Paragraph 1 of the complaint, insofar as it
shall be divided into paragraphs so numbered to be readily recites or narrates the personal
identified, each of which shall contain a statement of a single circumstances of the plaintiff, is admitted in
set of circumstances so far as that can be done with its entirety.
convenience. A paragraph may be referred to by its number 2. Paragraph 2 of the complaint, insofar as it
in all succeeding pleadings. relates to the personal circumstances of the
defendant is admitted in its entirety.
(b) Headings. — When two or more causes of action are 3. Paragraph 3 of the complaint is specifically
joined, the statement of the first shall be prefaced by the denied, the truth being that ….”
words "first cause of action,'' of the second by "second cause
of action", and so on for the others. When one or more (b) Headings
paragraphs in the answer are addressed to one of several
causes of action in the complaint, they shall be prefaced by When two or more causes of action are joined, the statement
the words "answer to the first cause of action" or "answer to of the first shall be prefaced by the words "first cause of
the second cause of action" and so on; and when one or action," of the second by "second cause of action," and so
more paragraphs of the answer are addressed to several on for the others.
causes of action, they shall be prefaced by words to that
effect. When one or more paragraphs in the answer are addressed
to one of several causes of action in the complaint, they shall
(c) Relief. — The pleading shall specify the relief sought, but be prefaced by the words "answer to the first cause of
it may add a general prayer for such further or other relief as action" or "answer to the second cause of action" and so on;
may be deemed just or equitable. and when one or more paragraphs of the answer are
addressed to several causes of action, they shall be
(d) Date. — Every pleading shall be dated. prefaced by words to that effect.

Example:
Body – Sets forth the pleading’s designation, the allegations So, where the complaint pertains to 3 unpaid promissory
of party's claims or defenses, the relief prayed for, and its notes arising from 3 distinct and separate contracts of loan
date of the pleading. involving the same parties, the “first cause of action” must
specifically relate to the first promissory note; the “second
Note: cause of action” must relate to the second promissory note;
 The allegation in the body of the pleading will be and the “third cause of action” must pertain to the third
controlling. promissory note. If you are the party-pleader, do not mix up
 Even if the title is for ejectment and the allegations does the allegations pertaining to the 3 promissory notes, so that
not constitute for an ejectment case, it is the allegations the court can readily understand your storyline.
in the body of a pleading that will control over that of the
title.  Do not also confuse cause(s) of action with the reliefs
demanded or prayed for. Cause of action relates to the
delict or wrong done; whereas, the reliefs pertain to
(a) Paragraphs what you want the court to grant or award in your favor.
Where your action,
The allegations in the body of a pleading shall be divided
into paragraphs so numbered as to be readily identified, Example, is collection for sum of money with prayer for
each of which shall contain a statement of a single set of damages, do not label your claim for attorney’s fees as

46 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

“second cause of action;” your claim for moral damages as  PAL inc. v. PAL Ass. Feb 10, 2016
“third cause of action;” and your claim for exemplary
damages as “fourth cause of action.” That is palpably (d) Date
erroneous.
Every pleading shall be dated.
 In answering the complaint containing such joinder of
causes of action, the defendant should also observe  Every pleading must be dated. The date here is the
proper labelling, as by grouping his averments into date of the preparation of the pleading.
“Answer to the First Cause of Action,” “Answer to the  As required under the rules, the pleading should be
Second Cause of Action,” and “Answer to the Third dated.
Cause of Action,” as the case may be.
Example: “Cebu City (for Mandaue City), Philippines, 1 April
 Ras v. Sua Sept 25, 1960 2020.”

(c) Relief
Section 3. Signature and address.
The pleading shall specify the relief sought, but it may add a (a) Every pleading and other written submissions to the
general prayer for such further or other relief as may be court must be signed by the party or counsel
deemed just or equitable. representing him or her.

 Each complaint contains prayer. The prayer refers to (b) The signature of counsel constitutes a certificate by him
the remedies asked to the court. The plaintiffs, in the or her that he or she has read the pleading and
prayer ask a specific prayer, but it may contain a document; that to the best of his or her knowledge,
general prayer asking for other relief sought. That is information, and belief, formed after an inquiry
catch all provision. reasonable under the circumstances:
 The pleading must also specify the relief prayed for. In
a complaint, the plaintiff, would of course, pray that 1) It is not being presented for any improper purpose,
defendant be made liable for plaintiff’s claims, or that such as to harass, cause unnecessary delay, or
the reliefs he prayed for in the complaint be granted; needlessly increase the cost of litigation;
whereas, the defendant, would normally pray for the
dismissal of the complaint and the award in his favor of 2) The claims, defenses, and other legal contentions are
all his counterclaims, if any. warranted by existing law or jurisprudence, or by a non-
frivolous argument for extending, modifying, or
General rule: That a court cannot grant a relief not prayed reversing existing jurisprudence;
for in the pleadings or in excess of that being sought. This is
the reason why Section 2(c), Rule 7, requires that the 3) The factual contentions have evidentiary support or, if
pleading shall specify the relief sought. specifically so identified, will likely have evidentiary
support after availment of the modes of discovery under
Exception: That there is such thing as a general prayer to these rules; and
the end that the “(P)laintiff (or defendant) prays for such
other relief as the court may deem just and equitable under 4) The denials of factual contentions are warranted on the
the premises.” This is allowed under Section 2(c), Rule 7. evidence or, if specifically so identified, are reasonably
And it is because of this “general prayer” that a court can based on belief or a lack of information.
grant the relief warranted by the allegations and the
evidenced adduced in the trial even if it is not specifically (c) If the court determines, on motion or motu proprio and
sought by the injured party (Prince Transport, Inc. v. Garcia, after notice and hearing, that this rule has been
639 SCRA 312). violated, it may impose an appropriate sanction or
refer such violation to the proper office for disciplinary
So, in a case for collection of sum of money, for example, action, on any attorney, law firm, or party that violated
even if the plaintiff failed to specifically ask in his complaint the rule, or is responsible for the violation. Absent
for an award of attorney’s fees in his favor, this may still be exceptional circumstances, a law firm shall be held
awarded to him by the court if he stated in his complaint that jointly and severally liable for a violation committed by
he was constrained to hire the services of a lawyer just to its partner, associate, or employee. The sanction may
prosecute the case and where he presented evidence during include, but shall not be limited to, non-monetary
the trial showing that he paid the professional fee of his directive or sanction; an order to pay a penalty in court;
counsel. or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of
However, there are some cases, as an exception, that the part or all of the reasonable attorney’s fees and other
court grant relief even if not prayed for in the complaint. If the expenses directly resulting from the violation, including
allegations in the complaint and the evidence present attorney’s fees for the filing of the motion for sanction.
warrant the grant of such relief, then the court may grant The lawyer or law firm cannot pass on the monetary
such relief. penalty to the client.

 China Trust v. Turner july 3, 2017

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Every pleading must be signed by the plaintiff or counsel Take note that the lawyer or law firm, as the case may be,
representing him or her. An unsigned pleading produces no cannot pass on the monetary penalty to the client.
legal effect.
Other than the signature of the lawyer, the pleading must
Take note that the signature of counsel has this implied also contain the following:
certification or representations that:
 His complete address (it is advisable to include
i. He or she has read the pleading and document; also his email address and contact numbers);
that to the best of his or her knowledge,  Attorney’s Roll Number;
information, and belief, formed after an inquiry  Current Professional Tax Receipt Number; the
reasonable under the circumstances; date and place of its issuance;
ii. It is not being presented for any improper purpose,  IBP Official Receipt Number, indicating its place
such as to harass, cause unnecessary delay, or and date of issuance;
needlessly increase the cost of litigation;  The number; date of issue; place of issue; and the
iii. The claims, defenses, and other legal contentions expiry date of the Certificate of Compliance of the
are warranted by existing law or jurisprudence, or Mandatory Continuing Legal Education, or,
by a non-frivolous argument for extending, perhaps, Certificate of Exemption
modifying, or reversing existing jurisprudence;
iv. The factual contentions have evidentiary support These enumerations above must be present in your pleading
or, if specifically so identified, will likely have or motions, otherwise it won’t be accepted. No MCLE
evidentiary support after availment of the modes of Compliance, you will subject to disciplinary actions.
discovery under these rules; and
v. The denials of factual contentions are warranted Under the old rules, an unsigned pleading may be remedied
on the evidence or, if specifically so identified, are if it was due to mere inadvertence and not intended for
reasonably based on belief or a lack of delay. However, under the Amended Rules, an unsigned
information. pleading may no longer be remedied since the provision for
such has been deleted from the amended rules of court. The
By signing the pleading, a lawyer vouches, in essence, that, lawyer, law firm, or party responsible for filing an unsigned
to the best of his knowledge, information, and belief, the pleading may thus be sanctioned under this rule unless there
claim/defense is meritorious; that it has basis, in law and in are exceptional circumstances. Also note that an unsigned
fact; that the complaint/defense is not trumped up; and that pleadings remains to be without legal effect, and is treated
he, in effect, holds true to his oath “not to delay any man for as “a mere scrap of paper.”
money or malice.”

Effect of Violation of the Rule: Section 4. Verification.

NOTE of the amendments imposing sanctions on the lawyer Except when otherwise specifically required by law or rule,
and even on the firm where he belongs, if it be found out, pleadings need not be under oath or verified.
either on motion of the opposing party or motu proprio by the
court and after due notice and hearing, that the lawyer has A pleading is verified by an affidavit of an affiant duly
violated the foregoing implied representations. authorized to sign said verification. The authorization of the
affiant to act on behalf of a party, whether in the form of a
On whom sanction imposed: secretary’s certificate or a special power of attorney, should
The attorney, law firm, or the party that violated the rule. be attached to the pleading, and shall allege the following
attestations:
Note: The law firm shall be jointly and severally liable for a
violation committed by its partner, associate, or employee. a) The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
Such sanctions may include, but are not necessarily limited authentic documents;
to: b) The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
i. Payment of penalty to the court; or c) The factual allegations therein have evidentiary support
ii. If sanction is imposed on motion and warranted for or, if specifically so identified, will likewise have
effective deterrence, an order directing payment to evidentiary support after a reasonable opportunity for
the movant of part or all of the reasonable discovery.
attorney’s fees and other expenses directly
resulting from the violation, including attorney’s The signature of the affiant shall further serve as a
fees for the filing of the motion for sanction; certification of the truthfulness of the allegations in the
iii. Non-monetary sanctions, like reprimand, pleading.
suspension, or even disbarment, as the court may
refer the matter to the proper office – Office of the A pleading required to be verified that contains a verification
Bar Confidant in the SC or IBP – for appropriate based on “information and belief,” or upon “knowledge,
disciplinary action. information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading.

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General Rule: Pleadings need not be under oath or verified. Professional Regulation Commission (PRC) License Card
bearing No. 0007, which is valid until September 06, 2020.
Exception: When otherwise specifically required by law or
rule. [Sec. 4, Rule 7] The following pleadings require Note: It is submitted that the requirement of the attachment
verification. of the document of authorization implies that the authority of
such person may no longer be proven during trial. This,
Effect: if not required to verify, no effect. If requires therefore, overturns existing jurisprudence which provides
verification but no verification, there is effect. that proof of one’s authority to sign a verification may be
taken up during trial. [246 Corp v. Daway, G.R. No. 157216
How Verified (2003)] Proof of authority should already be established by
By an affidavit under oath with the following attestations: attaching said proof to the pleading.
a. The allegations in the pleading are true and
correct based on personal knowledge or authentic PURPOSE
documents; The purpose of the verification is to give assurance that the
b. The pleading is not filed to harass, cause allegations in a pleading are true and correct and not the
unnecessary delay, or needlessly increase the product of the imagination or a matter of speculation and that
cost of litigation; and the pleading is filed in good faith (Bank of the Philippine
c. The factual allegations therein have evidentiary Islands v. Court of Appeals, 569 SCRA 510).
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable In the following instances, among others, the appropriate
opportunity for discovery. pleading(s) are required to be verified: (Familiarize)

The authorization of the affiant to act on behalf of the party, 1. Petition for Relief from Judgment (Section 3, Rule 38)
whether in the form of a secretary’s certificate or a special 2. Petition for Review from the Regional Trial Courts
power of attorney, should be attached to the pleading. (Section 1, Rule 42)
3. Petition for Review from the quasi-judicial agencies to
Note that the certifications anent the things mentioned in the Court of Appeals (Section 5, Rule 43)
paragraphs (b) and (c) of Section 4, Rule 7, are new matters, 4. Appeal by Certiorari from the Court of Tax Appeals
as are now required under the Amended Rules. The same (Section 12, RA 9282)
were not required to be stated in the verification under the 5. Appeal by Certiorari from the Court of Appeals to the
old Rules and even under current Rules of Court. Supreme Court (Section 1, Rule 47)
6. Petition for Annulment of Judgments or final orders and
Illustration: resolutions (Section 1, Rule 47)
7. Complaint for Injunction (Section 4, Rule 58)
VERIFICATION 8. Application for Appointment of Receiver (Section 1,
Rule 59)
I, CARDO B. DALISAY, Filipino, of legal age, married, and 9. Application for Support pendente lite (Section 1, Rule
resident of Sta. Fe, Bantayan Island, Cebu, after having 69)
been sworn in accordance with law, hereby depose and 10. Petition for Certiorari against the judgments, final orders
state that: or resolutions of constitutional commissions (Section 2,
Rule 64)
1) I am the defendant in the above-entitled case; 11. Petitions for Certiorari (Section 1, Rule 65)
2) I have caused the preparation and filing of the foregoing 12. Petition for Prohibition (Section 2, Rule 65)
Answer with Compulsory Counterclaims; 13. Petition for Mandamus (Section 3, Rule 65)
3) I have read all the allegations contained in such Answer 14. Petition for Quo Warranto (Section 1, Rule 66)
with Compulsory Counterclaims; 15. Complaint for Expropriation (Section 1, Rule 67)
4) The allegations therein are true and correct based on my 16. Complaint/Answer for forcible entry or unlawful detainer
personal knowledge and/or based on authentic records; (Section 4, Rule 70)
5) Such Answer with Compulsory Counterclaims is not filed 17. Petition for Indirect Contempt (Section 4, Rule 71)
to harass, cause unnecessary delay, or needlessly increase 18. Petition for Appointment of a General Guardian
the cost of litigation; and (Section 2, Rule 93)
6) The factual allegations therein have evidentiary support, 19. Petition for Leave to Sell or Encumber Property of the
or will likewise have evidentiary support after a reasonable Ward by a guardian (Section 1, Rule 95)
opportunity for discovery. 20. Petition for the Declaration of Competency of a Ward
(Section 1, Rule 97)
IN WITNESS WHEREOF, I have hereunto affixed my 21. Petition for Habeas Corpus (Section 3, Rule 102)
signature, this 1 ST day of April 2020, in Cebu City, 22. Petition for Change of Name (Section 2, Rule 103)
Philippines. 23. Petition for Voluntary Judicial Dissolution of a
Corporation (Section 1, Rule 104)
CARDO B. DALISAY 24. Petition for Cancellation or Correction of Entries in the
Affiant Civil Registry (Section 1, Rule 108)
25. Pleading filed in the inferior courts in cases covered by
SUBSCRIBED AND SWORN before me, this 1st day of April the Rule on Summary Procedure.
2020, at Cebu City, Philippines. Affiant exhibited to me his

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While not required to be verified in the manner and form case without prejudice, unless otherwise provided, upon
prescribed under Section 4, Rule 7, the following must be motion and after hearing. The submission of a false
under oath (NOTE: A mere jurat would suffice – e.g. certification or non-compliance with any of the undertakings
“SUBSCRIBED AND SWORN before me, this 1st day of therein shall constitute indirect contempt of court, without
April 2020, at Cebu City, Philippines. Affiant exhibited to me prejudice to the corresponding administrative and criminal
his Professional Regulation Commission (PRC) License actions. If the acts of the party or his or her counsel clearly
Card bearing No. 0007, which is valid until September 06, constitute willful and deliberate forum shopping, the same
2020):” shall be ground for summary dismissal with prejudice and
1) Denial of the genuineness and due execution of shall constitute direct contempt, as well as a cause for
an actionable document (Section 8, Rule 8) administrative sanctions. (5a)
2) Motion to Set Aside a Default Order (Section 3[b],
Rule 9)
3) Answer to Written Interrogatories (Section 2, Rule Verification vs. Certification of Forum Shopping
25)
4) Answer to Request for Admission (Section 2, Rule Verification is a form of affidavit wherein the party certifies
26) under oath that he has read the allegation in the pleading
and they are all true in his own personal knowledge.
Effect of Non-compliance or Defective Verification
General Rule: A pleading required to be verified that Certification against forum shopping is a form of affidavit
contains a verification based on "information and belief", or and the party certifies under oath that there is no other case
upon "knowledge, information and belief", or lacks a proper pending in another court or tribunal and that if there is such
verification, shall be treated as an unsigned pleading. pending case involving the same issue in another court, he
should indicate in the pleading the complete status of such
Note: An unsigned pleading produces no legal effect and is case. Or if he has no knowledge regarding the pendency of
a “mere scrap of paper.” another case at the time of filing of the case, he undertakes
to inform the court regarding within 5 days after obtaining
Exception: Lack of verification is a mere formal, and not a knowledge of the pendency of that case.
jurisdictional, requirement. As such, a defect in the
verification does not render the pleading fatally defective and FORUM SHOPPING
the court may order its subsequent submission or correction The act of filing two or more cases, where it involves the
if such serves the ends of justice. [Vda. de Formoso v. PNB, same parties, the same cause of action, either
650 SCRA 35 (2001)] simultaneously or successively. Necessarily when there is
forum shopping there is litis pendentia or res judicata or
Q: In a complaint for recovery of ownership over real splitting a cause of action in court.
property, the defendant moved to dismiss the case the
complaint does not contain any verification. Is the The repeated availment of several judicial remedies in
motion meritorious? different courts, simultaneously or successively, all
A: No, a pleading need not be verified unless there is a law substantially founded on the same transactions and the
or rule specifically requiring the same. same essential facts and circumstances, and all raising
substantially the same issues, either pending in or already
resolved adversely by some other court [Asia United Bank v.
Section 5. Certification against forum shopping. Goodland Company, Inc., G.R. No. 191388 (2011)]
The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for Test to determine existence of forum shopping
relief, or in a sworn certification annexed thereto and Whether in the two or more cases pending, there is identity
simultaneously filed therewith: (a) that he or she has not of
theretofore commenced any action or filed any claim 1. Parties
involving the same issues in any court, tribunal or quasi- 2. Rights or causes of action, and
judicial agency and, to the best of his or her knowledge, no 3. Relief sought [Huibonhoa v. Concepcion, G.R. No.
such other action or claim is pending therein; (b) if there is 153785 (2005)]
such other pending action or claim, a complete statement of 4. Identity of the two preceding particulars such that
the present status thereof; and (c) if he or she should any judgment rendered in the other action will,
thereafter learn that the same or similar action or claim has regardless of which party is successful, amount to
been filed or is pending, he or she shall report that fact within res judicata in the action under consideration (Sps.
five (5) calendar days therefrom to the court wherein his or Isidro & Lea Cruz vs. Sps. Florencio & Amparo
her aforesaid complaint or initiatory pleading has been filed. Caraos, 23 April 2007, GR No. 138208).

The authorization of the affiant to act on behalf of a party, Certificate of Non-Forum Shopping (CNFS)
whether in the form of a secretary’s certificate or a special The plaintiff or principal party shall certify under oath in the
power of attorney, should be attached to the pleading. complaint or other initiatory pleading asserting a claim for
relief or in a sworn certification annexed thereto and
Failure to comply with the foregoing requirements shall not simultaneously filed therewith: (COL)
be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the

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1. That he or she has not Commenced any action or filed SUBSCRIBED AND SWORN before me, this 1st day of April
any claim involving the same issues in any court, 2020, at Cebu City, Philippines. Affiant exhibited to me his
tribunal or quasi-judicial agency and, to the best of his Professional Regulation Commission (PRC) License Card
knowledge, no such other action is pending; bearing No. 0007, which is valid until September 06, 2020.
2. If there is such Other pending action or claim, a
complete statement of the present status thereof; and NOTE: If he or she should thereafter learn that the same or
3. If he or she should Learn that the same or a similar similar action or claim has been filed or is pending, he or she
action or claim has been filed or is pending, he shall Undertakes to inform the court within five (5) calendar days
report that fact within 5 calendar days to the court from knowledge thereof.
wherein his aforesaid complaint or initiatory pleading
has been filed. [Sec. 5, Rule 7] What pleadings require a certification against non-forum
shopping (Initiatory pleadings):
1. Complaint
Initiatory pleading 2. Permissive counterclaim
This is the first pleading you are going to file such as 3. Cross-claim
complaint. As a rule, an answer is not an initiatory pleading 4. Third (fourth, etc.) party complain
but if together with the answer the defendant likewise 5. Complaint-in-intervention
incorporates permissive counterclaim, his answer must
include certification against forum shopping because it The rule does not require a certification against forum-
contains permissive counterclaim which is considered an shopping for a compulsory counterclaim because it cannot
initiatory pleading. be the subject of a separate and independent adjudication,
as when the counterclaim is for damages, moral, exemplary
Illustration: or attorney’s fees, by reason of the alleged malicious and
unfounded suit filed against the defendant. It is, therefore,
VERIFICATION AND not an initiatory pleading (Santo Tomas University v. Surla,
CERTIFICATION AGAINST NON-FORUM SHOPPING 294 SCRA 382).

I, CARDO B. DALISAY, Filipino, of legal age, married, and Parenthetically, if the answer with a counterclaim is filed
resident of Sta. Fe, Bantayan Island, Cebu, after having merely to counter petitioner’s complaint, and is a claim for
been sworn in accordance with law, hereby depose and relief that is derived only from, or is necessarily connected
state that: with the main action or complaint, it is not an initiatory
pleading (Spouses Carpio v. Rural Bank of Sto. Tomas
1) I am the Petitioner in the above-entitled case; Batangas, 489 SCRA 492).
2) I have caused the preparation and filing of the foregoing
Petition; Example:
3) I have read all the allegations contained in such Waldi filed a case against RMG for allegedly causing
Petition; damages on Waldi’s car on account of RMG’s negligence in
4) The allegations therein are true and correct based on driving his own car. In his Answer with Counterclaim, RMG
my personal knowledge and/or based on authentic alleged that the vehicular collision complained of was rather
records; due to Waldi’s negligence, thereby praying that Waldi be
5) Such Petition is not filed to harass, cause unnecessary held liable instead to pay for the damages of RMG’s car, in
delay, or needlessly increase the cost of litigation; the amount as, thus, stated and prayed for in the Answer
6) The factual allegations therein have evidentiary with Counterclaim, plus attorney’s fees, moral and
support, or will likewise have evidentiary support after a exemplary damages.
reasonable opportunity for discovery; and
7) I hereby certify that I have not heretofore commenced RMG’s Answer with Counterclaim need not contain a
any petition, nor filed any action involving the same certification against forum-shopping.
issues, subject matter, and parties before the Supreme
Court, the Court of Appeals, or different divisions Who signs:
thereof, or any court, tribunal or quasi-judicial agency, General Rule: Plaintiff or Principal party.
and to the best of my personal knowledge, no such
other action, petition or claim is pending therein; If I Generally, it is the plaintiff or principal party who executes
should hereafter learn of such other similar action, and signs the certification against forum-shopping, not his
petition or claim, then we shall report that fact to this counsel. And where there are several plaintiffs/petitioners or
Court, within five (5) calendar days from knowledge principal parties, all of them must sign the certification
thereof. against-forum shopping; otherwise, those who did not sign
will be dropped as parties to the cases. The exception,
IN WITNESS WHEREOF, I have hereunto affixed my however, is when the plaintiffs/petitioners or principal parties
signature, this 1ST day of April 2020, in Cebu City, share a common interest and invoke a common cause of
Philippines. action or defense, wherein the signature of only one of
them substantially complies with the Rule (Vda. de Formoso
CARDO B. DALISAY v. PNB, supra; & Packing v. Coca-cola Phil. Jan.31, 2008)
Affiant

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Rationale: The plaintiff, not the counsel, is in the best When there is willful and Ground for summary
position to know whether he or it has actually filed or caused deliberate forum shopping. dismissal of the case, with
the filing of a petition. Certification signed by counsel without prejudice.
proper authorization is defective, and a valid cause for
dismissal [Anderson v. Ho, G.R. No. 172590 (2013)] Direct contempt of court

Exception: Authorized person, usually counsel If, for Cause for administrative
justifiable reasons, the party-pleader is unable to sign, he sanctions.
must execute a Special Power of Attorney designating his
counsel of record to sign on his behalf [Vda. de Formoso v. NOTE: A defective forum shopping cannot be remedied by
PNB, G.R. No. 154704 (2011)] amendment. The court has to dismiss the case although the
dismissal is without prejudice.
In cases of a juridical entity, the certification may be
executed by a properly authorized person through due The dismissal of the case may be done summarily, or even
authorization by a board resolution or secretary certificate. without any motion coming from the opposing party, and it
[Cosco v. Kemper, 670 SCRA 343 (2012)] shall be with prejudice – meaning, the case cannot anymore
be refiled. Where the proscription on litis pendentia is
Under the corporation code, it should be the person duly consciously violated, both (or all, if there are more than two)
authorized by the board to file the case and sign the actions shall be dismissed with prejudice (Phil
certification against forum shopping however the SC stated Pharmawealth, Inc. v. Pfizer, Inc., 635 SCRA 140)
that even without the required board resolution; the following
may sign the certification: And this is without prejudice to imposing an administrative
1. Chairperson of the board of directors sanction against the party-pleader and/or his lawyer, such
2. President as, but not limited to citing both of them in contempt of the
3. General manager or acting General Manager court. The lawyer may even be suspended or disbarred. The
[not the Branch manager] party-pleader may even be prosecuted for perjury, and the
4. Personnel officer lawyer may also be prosecuted for subornation of perjury, if
5. Employment specialist in labor case he consents to the doing of falsehood by his client.

They are allowed to sign the certification because they are in Failure to comply with the undertaking – that is, if the
the position to check/verify the truthfulness and correctness party-pleader should thereafter learn that the same or similar
of the allegation in the petition. [Cagayan Valley Drug Corp action or claim has been filed or is pending, he or she shall
vs. CIR – 02/13/08] report that fact within five (5) calendar days therefrom to the
court wherein his or her aforesaid complaint or initiatory
 Vallacar transit v. catubig May 30, 2011 – SC pleading has been filed.
distinguished as to the absence of Cagainst FS
and defective CFS Q: In a collection case, the defendant filed a motion to
dismiss the case on the ground that the Certification
Note: Similar to the new requirement under verification, the Against Forum Shopping was signed only by the
authorization of the affiant to act on behalf of the party, counsel, and not by the plaintiff himself. Is the motion
should be attached to the pleading. meritorious?
A: Yes, all initiatory pleadings must contain Certification
Against Forum Shopping signed by the party himself.
Effect of Non-compliant of Certification Against Non-
Forum Shopping Section 6. Contents.
Every pleading stating a party’s claims or defenses shall, in
DEFECT EFFECT addition to those mandated by Section 2, Rule 7, state the
Failure to comply with the Not curable by mere following:
requirements. amendment of the complaint a) Names of witnesses who will be presented to prove a
or other initiatory pleading. party’s claim or defense;
b) Summary of the witnesses’ intended testimonies,
Failure to submit a Cause for dismissal of the provided that the judicial affidavits of said witnesses
certification against forum case, without prejudice shall be attached to the pleading and form an integral
shopping, but the party has unless otherwise provided part thereof. Only witnesses whose judicial affidavits
not actually committed forum upon motion and after are attached to the pleading shall be presented by the
shopping. hearing. Unless, the court parties during trial. Except if a party presents
provides otherwise - with meritorious reasons as basis for the admission of
prejudice. additional witnesses, no other witness or affidavit shall
be heard or admitted by the court; and
False certification Constitutes indirect c) Documentary and object evidence in support of the
contempt of court, without allegations contained in the pleading.
Non-compliance with any of prejudice to administrative *New Provision
the undertaking therein. and criminal actions.

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Under the old and even in the present rules, the pleading pleadings from the records. [1 Riano 262-263, 2016 Bantam
shall only state the ultimate facts constituting the claim or Ed.]
defense, as the case may. Evidentiary facts need not be
stated in the pleading, much less the names of the witnesses
for the party-pleader and the substance of their respective RULE 8
testimonies, as these things are only required to be stated in
MANNER OF MAKING ALLEGATION IN PLEADINGS
the Pre-Trial Brief and are to be taken up only during Pre-
Trial.
Section 1. In general.
Under the Amended Rules, every pleading stating a party's Every pleading shall contain in a methodical and logical
claims or defenses shall, in addition to those mandated by form, a plain, concise and direct statement of the ultimate
Section 2, Rule 7, state the following: facts, including the evidence on which the party pleading
relies for his or her claim or defense, as the case may be.
a. Names of witnesses who will be presented to
prove a party's claim or defense; If a cause of action or defense relied on is based on law, the
b. Summary of the witnesses' intended testimonies, pertinent provisions thereof and their applicability to him or
provided that the judicial affidavits of said her shall be clearly and concisely stated.
witnesses shall be attached to the pleading and
form an integral part thereof, and Every pleading shall contain in a methodical and logical
form:
General Rule: Only witnesses whose judicial 1. A plain, concise and direct statement of the ultimate
affidavits are attached to the pleading shall be facts,
presented by the parties during trial. 2. The evidence on which the party pleading relies for his
or her claim or defense, as the case may be,
Exception: If a party presents meritorious reasons 3. If the cause of action or defense is based on law, the
as basis for the admission of additional witnesses. pertinent provisions of the law and its applicability.

c. Documentary and object evidence in support of Ultimate facts are those which are essential to a one’s
the allegations contained in the pleading. [Sec. 6, cause of action or defense. The fact is essential if your
Rule 7] cause of action or defense would not be complete if you omit
the same.
Rationale: To ensure that a person filing a case or a
pleading would, at the time of filing, already have evidentiary Ultimate Facts vs. Evidentiary Facts
basis to back the same up, and there would be no delay
caused by parties still trying to find evidence as basis for the Ultimate Facts / Evidentiary Facts /
claims during the pendency of the case. Factum Probandum Factum Probans
the essential facts that
Atty. G: It is submitted that the foregoing matters are now would constitute your cause
required to be stated in the appropriate pleadings, so that of action.
the court and the parties can readily determine, even before these are the facts that if Facts that maybe excluded
actual trial could be had, if the complaint or the defense has deleted the pleading would because not vital to your
merit or not. This requirement is meant to put give more be insufficient or your cause cause of action.
teeth to the implied representations under Sections 3 and 4 of action would be
of Rule 7 to the end that the complaint or defense is not insufficient.
trumped up, or concocted, or that it has, indeed, basis in fact Facts that needs to be Facts by which factum
and in law. established. probandum is established.
Hypothetical Existent
This requirement is also meant to avoid surprises during the
trial. Example:
You are drafting a complaint for collection of an unpaid loan.
Moreover, all papers and pleadings filed in court must You already stated in the complaint that you granted money
likewise bear the following items: to the defendant by way of loan, and that the latter already
1. Professional Tax Receipt Number received the money. So, by alleging, you already established
2. IBP Official Receipt Number that you have the right to be paid and that the defendant has
3. Roll of Attorneys’ Number the correlative obligation to pay what he borrowed from you.
4. MCLE Certificate of Compliance, or Certificate of
Exemption But, if by sheer inadvertence, you failed to state in your
complaint that the obligation had already matured and that
Note: Failure to comply with the first three requirements you already made a demand for payment, in that you just
allow the court to not take action with the pleading, without stated therein that the defendant owed you money, then your
prejudice to possible disciplinary actions against the erring complaint obviously failed to make out a cause of action.
counsel. Failure to comply with the fourth requirement
causes the dismissal of the case and expunction of the So, you should not, therefore, omit to state in your complaint
that the obligation already fell due, and for which you

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demand a demand, so as to complete the statement of your Example:

cause of action. That is an ultimate fact. Your property was taken by the state for public purpose,
sans payment of just compensation. So, you filed a case for
 The rule, as it is now amended, provides that you have payment of just compensation. You are permitted to cite in
to state in your pleading the ultimate facts, including the your pleading Section 9, Article III of the 1987 Philippine
evidence on which the party-pleader relies for his claim Constitution, which provides: “Private property shall not be
or defense. This amendment is precisely introduced in taken for public use without just compensation.” Then, you
order be consistent with Section 7, Rule 8 of the should discuss why the law is applicable in your case.
Amended Rules, which provides:
But while the rules allow the pleader to cite in his pleading
Section 7. Action or defense based on the law on which his cause of action or defense is based, he
document. is not, however, permitted to cite mere conclusions of facts
Whenever an action or defense is based upon a or law.
written instrument or document, the substance of
such instrument or document shall be set forth in Verily, the statement in the pleading that the defendant acted
the pleading, and the original or a copy thereof “willfully, maliciously, unlawfully and arbitrary manner” is
shall be attached to the pleading as an exhibit, considered a mere conclusion of law, unless the same is
which shall be deemed to be a part of the supported by facts aptly set forth in the pleading and
pleading. supported by evidence attached thereto (De Dios v. Bristol
Laboratories, 55 SCRA 349).
More than that, there is now a new provision under Section
6, Rule 7 of the Amended Rules which essentially requires
that any and all evidence -- documentary evidence, object Section 2. Alternative causes of action or defenses.
evidence, and even testimonial evidence – should now be A party may set forth two or more statements of a claim or
stated in the pleading defense alternatively or hypothetically, either in one cause of
action or defense or in separate causes of action or
Atty G defenses. When two or more statements are made in the
Q: Are evidentiary facts now required to be stated in the alternative and one of them if made independently would be
pleading? sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements.
The answer seems to be in the affirmative. Nevertheless, it
is opined that while evidentiary facts may now be stated in Alternative Causes of Action
the pleading, we should still be guided by the “ultimate facts” A party may set forth two or more claims or defenses
rule, in that such averment must be done in such manner alternatively in one cause of action. Such happens when a
that the pleader would not go into full, specific, and the party is not certain which cause of action would squarely fit
minutest details – to the point that his pleading will be very the set of facts alleged in the complaint. [1 Riano 278, 2016]
long and voluminous.
Also, a pleading which alleges alternative causes of action is
Example: not made insufficient by the insufficiency of one or more of
The defendant obtained a loan of money from plaintiff the alternative statements as long as one of them is
evidenced by the promissory described in the complaint, with sufficient. [Sec. 2, Rule 8]
a copy thereof attached to the complaint; that the obligation
fell due; that he made repeated demands for the defendant
to pay, evidenced by the demand letters dated March 3, 5, Example:
10, and 15, all of 2020, but despite repeated demands he A plaintiff may be unsure as to whether the liability of the
refused to pay.” carrier is based either on breach of contract or a quasi-delict.
The rules allow him to state both causes of action in the
But, just the same, in the complaint, the complainant does alternative. [1 Riano 278, 2016 Bantam Ed.]
not have to specify in full details that it was him who
personally went to the post office to send the letters via
registered mail on the given dates; how he got there; and Note: If there are two or more causes of action in the
who went with him in going there, if any, etc. complaint and one of them are insufficient, the complaint
cannot be dismissed because the pleading is not made
CAUSE OF ACTION BASED ON LAW insufficient by the insufficiency of one or more of the
The rules now provide that if a cause of action or defense alternative statements.
relied on is based on law, the pertinent provisions thereof
and their applicability to him or her shall be clearly and Example:
concisely stated. You are the registered owner of a certain parcel of land.
Somebody entered your property without asking permission
So, you are now permitted to cite in your pleading the law on from you, but you did not also interpose any objection during
which your cause of action or defense is based, but, more the time that he physically entered your property. After 3
that, you should state in your pleading why such law is months from the time that person entered your property, you
applicable in your case. finally decided to drive him out, so you sent him a letter,

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demanding that he vacate your property. That person simply Examples:

ignored your demand letter. “Prior to the filing of this case in court, the matter has been
referred to the barangay but there was not settlement”
You referred the matter to the Office of the Barangay
Chairman, supposedly for mediation, but he did not show up.
“Before the filing of this case in court, the matter has been
So, you want to file a case for ejectment. But you are at
referred to the Department of Education but there was no
quandary whether the case is one for forcible entry or one
settlement”
for unlawful detainer.

To remedy the situation, you can make alternative or

hypothetical statements in your complaint. You may state Anchor Savings Bank v. Furigay,
therein that: G.R. No. 191178 (2013)
“(i) The person entered your property and deprived All valid conditions precedent to the institution of the
you possession thereof by strategy or stealth” – particular action, whether prescribed by statute, fixed by
purportedly to establish a case for forcible entry. agreement of the parties or implied by law must be
performed or complied with before commencing the action,
In the alternative you can also state that: unless the conduct of the adverse party has been such as to
prevent or waive performance or excuse non-performance of
“(ii) Assuming arguendo that you had tolerated his the condition.
entry into, and occupancy thereof, by your
passivity or inaction, such possession becomes Note: The failure to comply with a condition precedent
nonetheless illegal when you served upon him a before the filing of a complaint is no longer a ground for an
letter demanding that he vacate the property, allowable motion to dismiss under the Amended Rules.
thereby making such ‘tolerated possession’ illegal” However, it is an affirmative defense that must be set out in
– purportedly to establish a case for unlawful the answer or else, it is deemed waived. [Sec. 12, Rule 8]
detainer.”

If your first statement is found to be insufficient to make out a Section 4. Capacity.

case for forcible entry, your complaint remains valid for as Facts showing the capacity of a party to sue or be sued or
long as the other statement – pertaining to the case for the authority of a party to sue or be sued in a representative
unlawful detainer -- is found to be sufficient. capacity or the legal existence of an organized association of
persons that is made a party, must be averred. A party
Landmark Case: La Mallorca v. CA, 17 SCRA 739 desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which
Section 3. Conditions precedent. shall include such supporting particulars as are peculiarly
In any pleading, a general averment of the performance or within the pleader’s knowledge.
occurrence of all conditions precedent shall be sufficient.

Right of action, more than the existence of a cause of action, Capacity to sue or be sued
requires the performance of the conditions precedent, if any. The following must be averred, to wit:
a. Facts showing the capacity of a person to sue or be
In some instances, there are things that are required to be sued,
done before one may institute a legal action, such as: b. The authority of a party, to sue and be sued in a
representative capacity, or
1. Tender of payment is required before making a c. The legal existence of an organized association of
consignation (Art. 1256 of the Civil Code); persons that is made a party.
2. Prior resort to barangay conciliation proceedings in
certain cases (Chapter 7, Title I, Book III of the Local Moreover, a party desiring to raise an issue as to the legal
Government Code of 1991); existence of any party to sue or be sued in a representative
3. Earnest efforts toward a compromise must be capacity must do so via specific denial.
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the a) Corporation - state that the corporation Is duly
case must be dismissed (Article 151 of the Family registered with SEC to show its legal capacity.
Code); b) Representative – state that he is equipped with
4. Exhaustion of administrative remedies before resorting special power of attorney.
to judicial action (Lopez v. City of Manila, 303 SCRA
448); That explains why the first few paragraphs in a complaint
5. Arbitration proceedings, especially when the contract would put forth the personal circumstances of the party
between the parties provides for such mechanism disputants, viz:
before recourse to judicial action.
1. Plaintiff Otaner M. Noelag is a Filipino, of legal age, and
A General Averment would be sufficient. resident of BR 119 Purple Duke Street, Briza
Subdivision, Nangka, Consolacion, Cebu. For facility

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and convenience, plaintiff may be served with the  Fraud or mistake - Must be stated with particularity.
notices and processes of this Honorable Court through
his counsel, at the address hereinafter given. Example:
You are duped into buying a fake gold bar. So, you are filing
2. Defendant RMG Corporation is a domestic corporation, a case against the seller, asking for rescission of the
duly organized and existing under Philippine laws, with contract of sale and the reimbursement for what you paid for
principal place of business at M.L. Quezon Highway, and as purchase price.
Maribago, Lapu-Lapu City, at which it may be served
with summons and other processes of this Honorable In your complaint, you should rather state concisely, clearly,
Court. Defendant is primarily engaged in hotel and and methodologically how the fraud took place.
resort business, as it, in fact, owns and operates the
Imperial Palace Waterpark Resort and Spa, located at “On 01 April 2020, defendant went to plaintiff’s house and
M.L. Quezon Highway, Maribago, Lapu-Lapu City. introduced himself as the CEO of RMG Mining Corporation;
that defendant presented to the plaintiff an identification card
 It may be observed that, in the above example, it is purportedly showing that he, the defendant, is the CEO RMG
specifically mentioned, among others, that plaintiff is of Mining Corporation; that, there and then, the defendant
legal age. This is because his legal capacity cannot just presented to the plaintiff an alleged 24 karat gold bar,
be presumed. weighing 500 grams, and offered the same for sale to the
plaintiff for a measly sum of P500,000.00; that the defendant
 In like manner, the legal capacity of the defendant – as represented and warranted to the plaintiff that it was a
a domestic corporation duly organized under Philippine genuine and authentic 24 karat gold bar; the defendant even
laws – is specifically averred, as it cannot just be presented to the plaintiff a supposed certification from the
presumed that it is really a corporation. Central Bank of the Philippines showing that it was pure
gold; and that faithfully relying on defendant’s representation
 If one is filing a case in his representative capacity, then and warranties, plaintiff bought the supposed gold bar for a
his legal capacity to bring the action on behalf, and for discounted price of P450,000.00; that plaintiff was horrified
the benefit, of his named principal and his capacity to to learn later that the alleged gold bar is fake, as it is but
sign the pleading must be averred with particularity. made of nickel, when plaintiff had it tested by, as he wanted
to pawn it at, ML pawnshop ….xxx,”
 If one is filing a case as the attorney-in-fact of a
disclosed principal, then he must specifically mention
that in the complaint; in fact, he must attach to the  Malice, intent, knowledge or other conditions of the
complaint a copy of the pertinent special power of mind – averred generally.
attorney, appointing him as such, conformably with
Sections 4 & 5, Rule 7 of the Amended Rules. The reason for this is plain and obvious: It is difficult to
fathom what is in the other person’s mind. So, you are
Example: permitted to state in your pleading that
Plaintiff XYZ is a duly registered corporation under the SEC.
Juan dela Cruz is duly authorized to represent per BOD Example:
Resolution 123, dated ____. “Defendant acted with malice aforethought when he offered
the supposed gold bar for sale to the plaintiff.”
If, in the above, illustration, the defendant corporation would
dispute plaintiff’s legal capacity to sue, then it shall do so by
making a specific denial in its answer and even raise that by
way of affirmative defense, and it shall include therein such Section 6. Judgment.
supporting particulars as are peculiarly within the In pleading a judgment or decision of a domestic or foreign
defendant’s knowledge. court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
Example: e.g. by attaching to its pleading a copy of setting forth matter showing jurisdiction to render it. An
plaintiff’s alleged Birth Certificate showing that he is not yet authenticated copy of the judgment or decision shall be
of legal age. attached to the pleading.

“The allegation in Paragraph 1 as to the legal capacity of the Suppose you are the defendant in a case. But you sought for
plaintiff is specifically denied because the truth of the matter the dismissal of the present case on the ground of res
is that he is just a minor” judicata. In doing so:

 You may do well by presenting to the court an

authenticated copy of the previous judgment.
Section 5. Fraud, mistake, condition of the mind.
In all averments of fraud or mistake, the circumstances
 You are no longer required to establish that the court
constituting fraud or mistake must be stated with
which rendered such previous jurisdiction had validly
particularity. Malice, intent, knowledge, or other condition of
acquired jurisdiction over the subject matter in that
the mind of a person may be averred generally.
previous case and over the party-disputants therein.

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 The rules presume that the judgment is valid. defendant desires to deny only a part of an averment, he or
she shall specify so much of it as is true and material and
But what you should present before the court hearing in the shall deny only the remainder. Where a defendant is without
present case is an authenticated copy of such prior judgment knowledge or information sufficient to form a belief as to the
or decision, and it should be attached to your motion to truth of a material averment made to the complaint, he or
dismiss or answer, as the case may be. A plain photocopy she shall so state, and this shall have the effect of a denial.
would not suffice.
 This has been previously discussed in Rule 6, please
check.
Section 7. Action or defense based on document.
Whenever an action or defense is based upon a written Bell Carpets Int’l Trading Corp. v. Court of Appeals,
instrument or document, the substance of such instrument or 185 SCRA 35
document shall be set forth in the pleading, and the original Wherein the Supreme court declared, in essence, that the
or a copy thereof shall be attached to the pleading as an admission drawn from the failure to make a denial under
exhibit, which shall be deemed to be a part of the pleading. oath of the genuineness and due execution of an actionable
document is a JUDICIAL ADMISSION, and as such, is
 This has been previously discussed in Rule 6, please CONCLUSIVE and cannot be contradicted unless shown to
check. have been made through palpable mistake that no such
admission was made, as provided for in Section 4, Rule 129
Pleading the Actionable Document of the Revised Rules on Evidence.
1. The substance of such document shall be set forth
in the pleading, and
2. The original or a copy thereof shall be attached to Section 11. Allegations not specifically denied deemed
the pleading as an exhibit. admitted.
Material averments in a pleading asserting a claim or claims,
other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied.
Section 8. How to contest such documents.
When an action or defense is founded upon a written
instrument, or attached to the corresponding pleading as Section 11, Rule 8 of the Amended Rules sets forth the
provided in the preceding section, the genuineness and due effects of the failure to make a specific denial of a material
execution of the instrument shall be deemed admitted unless averments in a pleading asserting a claim or claims, and
the adverse party, under oath specifically denies them, and such pleading may include compulsory counterclaims, cross-
sets forth what he or she claims to be the facts; but the claims, thirdparty complaints (Valdez v. Paras, L-11474, May
requirement of an oath does not apply when the adverse 13, 1959), and even a reply, if any.
party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the But even where there is a failure to make a specific denial of
original instrument is refused. a material averments in a pleading asserting a claim, the
following matters are NOT deemed admitted:
 This has been previously discussed in Rule 6, please
check. 1. Amount of unliquidated damages (like moral and
exemplary damages);
How would you contest an actionable document 2. Immaterial allegations (Worcester v. Lorenzana, L-
attached to the pleading? 9435, July 31, 1958);
3. Incorrect conclusions of facts drawn from facts set
Section 8, Rule 8 provides us with answer, in that you have out in the complaint;
to: 4. Conclusions of law;
1. Specifically deny it; 5. Default (Section 1, Rule 9);
2. Such specific denial must be under oath; and 6. Annulment of marriage (Article 48, Family Code);
3. You should set forth the facts you claim to be true 7. Legal Separation (Article 60, Family Code).

Conversely, if what is claimed is liquidated damages – that

Section 9. Official document or act. which the penalty expressly agreed upon and stipulated in
In pleading an official document or official act, it is sufficient an instrument – the same is admitted if there is a failure to
to aver that the document was issued or the act was done in make a specific denial of a material averments in a pleading
compliance with law. asserting a claim.

Section 10. Specific denial. Section 12. Affirmative defenses.

A defendant must specify each material allegation of fact the (a) A defendant shall raise his or her affirmative defenses
truth of which he or she does not admit and, whenever in his or her answer, which shall be limited to the
practicable, shall set forth the substance of the matters upon reasons set forth under Section 5 (b) Rule 6, and the
which he or she relies to support his or her denial. Where a following grounds:

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1. That the court has no jurisdiction over the person of the 4. That a condition precedent for filing the claim has
defending party; not been complied with.
2. venue is improperly laid;
3. That the plaintiff has no legal capacity to sue; a) Remember the Local Government Code, almost
4. That the pleading asserting the claim states no cause of all civil cases are required to undergo mandatory
action; and barangay conciliation in katarungang
5. That a condition precedent for filing the claim has not pambarangay.
been complied with.
b) Another is exhaustion of administrative remedies,
(b) Failure to raise the affirmative defenses at the earliest so if the remedy of the plaintiff could be obtained
opportunity shall constitute a waiver thereof. from an administrative body that complaint should
referred or filed first before that proper
(c) The court shall motu proprio resolve the above administrative body. If filed before the court
affirmative defenses within thirty (30) calendar days without exhausting administrative bodies the case
from the filing of the answer. could be dismissed for failure to comply with the a
condition precedent.
(d) As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6, the court may c) Earnest efforts towards a comprise agreement if
conduct a summary hearing within fifteen (15) calendar the case involves parties belonging to the same
days from the filing of the answer. Such affirmative family.
defenses shall be resolved by the court within thirty (30)
calendar days from the termination of the summary Note: Failure to raise this in the affirmative defense in the a
hearing. answer would be considered as a waiver.

(e) Affirmative defenses, if denied, shall not be the subject If any of those mentioned affirmative defenses (AD) is
of a motion for reconsideration or petition for certiorari, raised, the court need not conduct a hearing, and the court is
prohibition or mandamus, but may be among the required to resolve the case within 30 days. But if the AD
matters to be raised on appeal after a judgment on the that is raised is one of those mentioned in Sec.5(b) Rule 6,
merits. the court has the discretion to conduct a hearing within 15
days. After the hearing, then it shall be resolved by the court
1. That the court has no jurisdiction over the person within 30 days.
of the defending party;
Whatever ruling, under letter a, the court may have on the
This is when there is total absence of summons or improper AD even if the court would deny/grant the AD filing a motion
service of summons. Even if there is no proper service of for reconsideration is prohibited, the same with the filing of
summons or total absence of summons but the defendant certiorari, prohibition, and mandamus.
appeared in court the court can acquire jurisdiction over his
person; except when the defendant would raise this as an What is the remedy on the part of the defendant if his
affirmative defenses in his answer. Affirmative Defense is denied?
His remedy is to go to trial, present evidence (to establish his
2. Venue is improperly laid; AD) and on appeal he can raise the denied AD as one of the
errors committed by the court. Note that the ruling of the
Remember the rules in improper venue. court as regards his AD is merely interlocutory, it is
temporary, and the court that denied his AD may change its
3. That the plaintiff has no legal capacity to sue; ruling later on.

It is different from no legal personality to sue. Lack of legal Example: The defendant raise the AD of prescription the
capacity to sue means the plaintiff is a minor or not duly court denied it but after trial the court has realize that indeed
registered corporation. that the action has prescribed. May the court change its
earlier order denying the AD of prescription of the
Suppose the plaintiff has no legal personality to sue because defendant?
he is not the real party-in-interest, or he is not duly
authorized, or his authorization is defective, what is the Yes, because an interlocutory order is temporary. It can be
proper affirmative defense that could be raise in the answer? change by the court. That’s why the defendant may present
The proper affirmative defense is that the complaint states evidence during the trial to establish his AD. If still not
no cause of action. considered by the court in the decision and the decision is
adverse he can raise on appeal as one of the assigned
This ground that the complaint states no cause of action this errors.
could also be raised if there is insufficiency in the allegations
in the complaint. Remember the elements of a cause of What about on the part of the plaintiff, suppose the AD
action. If not all elements of a cause of action is alleged then is granted, the case is dismissed, what is the remedy of
the defendant may raise as an affirmative defense that the the plaintiff?
complaint states no cause of action.

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If the dismissal is without prejudice, the remedy is re-file Affirmative defenses may also include grounds for
the case. If for example the case is dismissed for lack of the dismissal of a complaint, specifically, that the
jurisdiction, the remedy is to re-file the case with the proper court has no jurisdiction over the subject matter,
court; or dismiss due to improper venue, file it to the proper that there is another action pending between the
venue. same parties for the same cause, or that the
action is barred by a prior judgment
Suppose the dismissal is based on a ground that will prevent
the plaintiff from refilling the same (dismissal with Informatively, these three (3) matters on the 2nd par. of par.B
prejudice), e.g. prescription and res judicata, the action are also among the grounds for filing a motion to dismiss
cannot be re-filed anymore and so the order of the court under Rule 16 of the 1997 Rules of Civil Procedure. But
would be a final order. It can be subject of appeal. Hence, if under the second sentence of paragraph (b), Section 5, Rule
that is the ground, res judicata and prescription, for the 6, of the Amended Rules, these three (3) other matters or
dismissal then the remedy is not re-filing but to file appeal grounds MAY now be pleaded in the answer by way of
from the order of dismissal because the same would be affirmative defenses
considered as a final order.
On the other hand, paragraph (a), Section 12, Rule 8, of the
Why is the order of dismissal without prejudice cannot Amended Rules made reference to the “reasons set forth
be subject to appeal? under Section 5(b), Rule 6” [Notably, such provision is cited
If you look at Rule 41, one of the orders that cannot be in its totality, as if to include or embrace the reasons or
subject of appeal is a dismissal without prejudice, because grounds under the second paragraph of Section 5(b), Rule 6.
the remedy is to re-file the case. Notably, and, as worded, paragraph (a), Section 12, Rule 8,
of the Amended Rules provides that the grounds
 Another ground for dismissal which prevents the ref- enumerated under items (1) to (5) thereof, as well as the
fling of action, the AD is unenforceable contract. That grounds or the “reasons set forth under Section 5(b), Rule
cannot be re-filed. 6” (in its totality), SHALL be raised in the answer by way of
 The claim has already been extinguished or affirmative defenses.
abandoned. The remedy would be to file an appeal.
At a glance, it would appear that paragraph (a), Section 12,
Atty. G’s Discussion: Rule 8, of the Amended Rules is RESTRICTIVE in requiring
that the grounds for dismissal of the actions SHALL only be
This provision is something new and is not found under Rule pleaded in the answer by way of affirmative defenses. On
8 of the 1997 Rules of Civil Procedure. the other hand, the second paragraph of Section 5(b), Rule
6, of the Amended Rules appears to be PERMISSIVE, in
It bears to emphasize, however, that the affirmative that it just provides that the three (3) other grounds:
defenses enumerated under items (1) to (5) of paragraph (1) that the court has no jurisdiction over the
(a), Section 12, Rule 8, of the Amended Rules, are among subject matter;
the grounds for filing a motion to dismiss under Rule 16 of (2) that there is another action pending between
the 1997 Rules of Civil Procedure. But said grounds are now the same parties for the same cause; or
being transposed to Section 12, Rule 8 of the Amended (3) that the action is barred by a prior judgment
Rules, where said grounds shall just be pleaded by way of
affirmative defenses. – MAY be pleaded in the Answer by way of affirmative
defense, thereby suggesting, from the other vantage point,
The poser is this: Does Section 12, Rule 8 of the that the same may not be raised in the answer, such that the
Amended Rules altogether prohibit the filing of a Motion same may be raised in another pleading or, perhaps, in a
to Dismiss? motion.

To answer the foregoing query, let us first consider the With this in mind, it would ostensibly appear that there are
provision of Section 5, Rule 6, of the Amended Rules, thus: two postulates on whether the Amended Rules now
proscribe the filing of a motion to dismiss, viz:
Section 5. Defenses.
1. First postulate. The Amended Rules altogether prohibit
xxxx the filing of a motion to dismiss prior to, or in lieu of,
filing of the answer, in that any and all grounds for filing
(b) An affirmative defense is an allegation of a new a motion to dismiss should just be pleaded in the
matter which, while hypothetically admitting the answer by way of affirmative defenses; OR
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him 2. Second postulate. The Amended Rules still allows the
or her. The affirmative defenses include fraud, filing of a motion to dismiss prior to the filing of the
statute of limitations, release, payment, illegality, answer, if it is based on any or all of the grounds
statute of frauds, estoppel, former recovery, enumerated under second paragraph of Section 5(b),
discharge in bankruptcy, and any other matter by Rule 6 .
way of confession and avoidance.
Be that as it may, it now appears that the second postulate
is the correct one -- that is, the filing of a motion to dismiss

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prior to the filing of the answer is STILL ALLOWED, if it is said grounds must be pleaded in the answer by way of
based on any or all of grounds enumerated under the affirmative defenses, together with any or all of the
second paragraph of Section 5(b), Rule 6. grounds enumerated under items (1) to (5) of
paragraph (a), Section 12, Rule 8, of the Amended
(1) that the court has no jurisdiction over the Rules (which are no longer grounds for filing a motion
subject matter; to dismiss, as they should just be pleaded in the answer
(2) that there is another action pending between the by way of affirmative defenses);
same parties for the same cause; or
(3) that the action is barred by a prior judgment; 3. But even if any or all of the of the grounds enumerated
and, in addition thereto, also on the ground under second paragraph of Section 5(b), Rule 6, and
(4) that the claim is barred by statute of limitations Section 12(b) Rule 15 of the Amended Rules are not
(e.g. prescription). raised in the motion to dismiss or pleaded in the answer
by way of special defenses, the case or claim may still
The foregoing submission finds meaning and support under be dismissed on any or all of those grounds, when it
Section 1, Rule 9 of the Amended Rules, which still mentions appears from the pleadings or the evidence on record
of a motion to dismiss, thus: that the court has no jurisdiction over the subject
matter, that there is another action pending between
Section 1. Defenses and objections not pleaded. the same parties for the same cause, or that the action
Defenses and objections not pleaded either in a is barred by a prior judgment, or by statute of
motion to dismiss or in the answer are deemed limitations, pursuant to Section 1, Rule 9 of the
waived. However, when it appears from the Amended Rules.
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that Take note further that the foregoing rule under Section
there is another action pending between the same 1, Rule 9 of the Amended Rules effectively qualifies the
parties for the same cause, or that the action is provision under paragraph 12(b), Rule 8 of the
barred by a prior judgment or by statute of Amended Rules which provides that “(b) Failure to raise
limitations, the court shall dismiss the claim. the affirmative defenses at the earliest opportunity shall
constitute a waiver thereof”.

That the filing of a motion to dismiss is still allowed is all the Sight should not be lost of the fact where the answer
more made evident by the provision of Section 12 (a), Rule contains affirmative defenses based on any or all of the
15 of the Amended Rules, which provides, in part: grounds enumerated under items (1) to (5) of paragraph (a),
Section 12, Rule 8, of the Amended Rules – 1) That the
Section. 12. Prohibited motions. court has no jurisdiction over the person of the defending
The following motions shall not be allowed: party; 2) That venue is improperly laid; 3) That the plaintiff
(a) Motion to dismiss except on the following has no legal capacity to sue; 4) That the pleading asserting
grounds: the claim states no cause of action; and 5) That a condition
1. That the court has no jurisdiction over the precedent for filing the claim has not been complied with –
subject matter of the claim; the court SHALL motu proprio resolve such affirmative
2. That there is another action pending between defenses within thirty (30) calendar days from the filing of
the same parties for the same cause; and the answer [Section 12(c), Rule 8 of the Amended Rules].
3. That the cause of action is barred by a prior
judgment or by the statute of limitations;
But where the affirmative defenses pleaded in the answer
consist of any or all of the grounds under the first (1st)
Harmonizing the foregoing provisions, it would now paragraph of Section 5(b), Rule 6 of the Amended Rules –
appear that: 1) fraud, 2) statute of limitations, 3)) release, 4) payment, 5)
illegality, 6) statute of frauds, 7) estoppel, 8) former recovery,
1. The filing of a motion to dismiss prior to the filing of the 9) discharge in bankruptcy, and 10) any other matter by way
answer is STILL ALLOWED, for as long it is based on of confession and avoidance – the court MAY conduct a
any or all of grounds enumerated under second summary hearing thereon within fifteen (15) calendar days
paragraph of Section 5(b), Rule 6, and Section 12 (b), from the filing of the answer. Such affirmative defenses shall
Rule 15 of the Amended Rules -- (1) that the court has be resolved by the court within thirty (30) calendar days from
no jurisdiction over the subject matter; (2) that there is the termination of the summary hearing [Section 12(d), Rule
another action pending between the same parties for 8 of the Amended Rules]. Here, the court may or may not
the same cause; or (3) that the action is barred by a conduct a summary hearing – meaning, the matter of
prior judgment – and/or (4) that the claim is barred by conducting a summary hearing is left to the sound discretion
statute of limitation under. These are the four of the court or that the same is not mandatory. That
permissible grounds for filing a motion to dismiss; conducting a summary hearing with respect to affirmative
defenses pleaded in the answer is discretionary on the court
2. If no such motion to dismiss is filed based on any or all is buttressed by the provision of Section 12(c), Rule 15 of
of the grounds enumerated under the second the Amended Rules, thus:
paragraph of Section 5(b), Rule 6 and Section 12(b),
Rule 15, of the Amended Rules, then any or all of the

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Section. 12. Prohibited motions. And if the motion to dismiss is denied, then trial may likewise
The following motions shall not be allowed: proceed, as such order of denial, being in the nature of an
xxx xxx xxx interlocutory order, is not subject to appeal, but it may be
among the matters to be raised on appeal after a judgment
(b) Motion to hear affirmative defenses; on the merits (Harrison Foundry & Machinery, et al. v.
Harrison Foundry Workers Association, et al., G.R. No. L-
Furthermore, be it noted that if the court denies the 18432, June 19, 1963).
affirmative defenses pleaded in the answer, such denial
SHALL NOT be the subject of a motion for reconsideration But what is the effect if the affirmative defense or a
or petition for certiorari, prohibition or mandamus, but may motion to dismiss is GRANTED?
be among the matters to be raised on appeal after a
judgment on the merits [Section 12(e), Rule 8 of the Section 13, Rule 15 of the Amended Rules provides the
Amended Rules]. In other words, the trial of the case will answer, thus:
proceed.
Section. 13. Dismissal with prejudice.
If, upon the other hand, a motion to dismiss is filed based on Subject to the right of appeal, an order granting
any or all of the permissible grounds -- (1) that the court has a motion to dismiss or an affirmative defense that
no jurisdiction over the subject matter; (2) that there is the cause of action is barred by a prior judgment
another action pending between the same parties for the or by the statute of limitations; that the claim or
same cause; or (3 )that the action is barred by a prior demand set forth in the plaintiff’s pleading has
judgment; and/or (4) that the claim is barred by statute of been paid, waived, abandoned or otherwise
limitation (which may also be raised by in the answer by way extinguished; or that the claim on which the action
of affirmative defenses) -- the court may, in the exercise of is founded is unenforceable under the provisions
its discretion, call a hearing on such motion to dismiss, of the statute of frauds, shall bar the refiling of the
pursuant to Section 6, Rule 15 of the Amended Rules, viz: same action or claim

Conversely, if the motion to dismiss or affirmative defense is

Section. 6. Notice of hearing on litigious granted and the ground for the dismissal of the
motions; discretionary. pending/present case or claim is that the claim is (1) barred
The court may, in the exercise of its discretion, by a prior judgment or (2) by the statute of limitations; or (3)
and if deemed necessary for its resolution, call that the claim or demand set forth in the plaintiff’s pleading
a hearing on the motion. The notice of hearing has been paid, waived, abandoned or otherwise
shall be addressed to all parties concerned, and extinguished; or (4) that the claim on which the action is
shall specify the time and date of the hearing. founded is unenforceable under the provisions of the statute
of frauds, then such order of dismissal (being with prejudice)
But whether or not the court, in the exercise of its discretion, shall be subject to appeal. But once the said order of
call a hearing on the motion to dismiss that is filed, and dismissal is affirmed on appeal with finality, then the case or
considering that a motion to dismiss is considered a litigious claim CANNOT ANYMORE BE REFILED.
motion [Section 5(2), Rule 15 of the Amended Rules], the
adverse party can, as he shall, file his or her opposition But where the order of dismissal of the case of claim is
thereto, within five (5) days from receipt hereof, in based on the grounds other that the four (4) grounds
accordance with Section 5(c), Rule 15 of the Amended mentioned under Section 13, Rule 15 of the Amended Rules
Rules, thus: – these other grounds being, but not limited to, (1) the venue
is improperly laid; or (2) plaintiff has no legal capacity to sue;
Section 5. Litigious motions. or (3) that the complaint states no cause of action; or (4) that
(a) Litigious motions include: a condition precedent for filing the suit has not been
complied with; or (5) litis pendentia – such dismissal, if
1) Motion for bill of particulars; proper, is NOT A BAR to another action when the
2) Motion to dismiss; circumstances change and warrant the refiling and
prosecution of the same.
xxx xxx xxx xxx xxx xxx

(c) The opposing party shall file his or her Section 13. Striking out of pleading or matter contained
opposition to a litigious motion within five (5) therein.
calendar days from receipt thereof. No other Upon motion made by a party before responding to a
submissions shall be considered by the court pleading or, if no responsive pleading is permitted by these
in the resolution of the motion. Rules, upon motion made by a party within twenty (20)
calendar days after the service of the pleading upon him or
The motion shall be resolved by the court her, or upon the court's own initiative at any time, the court
within fifteen (15) calendar days from its may order any pleading to be stricken out or that any sham
receipt of the opposition thereto, or upon or false, redundant, immaterial, impertinent, or scandalous
expiration of the period to file such matter be stricken out therefrom.
opposition.

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Before responding to a pleading, the purported party-pleader General Rule: Defenses and objections not alleged either in
may move to strike out a pleading or a portion thereof, for a motion to dismiss or in the answer is deemed waived. So it
being sham, false, redundant, impertinent, or scandalous. is necessary that whatever are your objections must be
alleged in your answer or in a motion to dismiss.
Striking a pleading means that the pleading will be deemed
erased as if it was never filed. If a portion of the pleading be Exception: There are objections not considered waived
ordered stricken out or expunged from the pleading, then even if not raised in a motion to dismiss or in an answer, if
such portion is deemed erased or not having been written at these matters are apparent in the complaint/pleadings or
all. evidence on record.

Take note that even without such motion, the court may at 1. The court has no jurisdiction over the subject matter;
any time, and on its own accord or initiative, order that a 2. There is another action pending between the same
pleading or a portion thereof be stricken out or expunged for parties for the same cause; (Litis Pendentia)
being for being sham, false, redundant, impertinent, or 3. That the action is barred by a prior judgment or; (res
scandalous. judicata)
4. By statute of limitations, the court shall dismiss the
Example: claim (prescription)
In an action for recovery of parcel of land, the plaintiff
averred in his complaint that the defendant is an adulterer (a  Prescription here includes laches. “Laches”
condition which, even if true, has no bearing or relation to unreasonable delay in bringing up the action.
the issue in such case). If such be the case, the defendant  Those objections, again, are not considered waived
may move to strike out such impertinent, irrelevant, and even if not raised in the answer or motion to dismiss. In
scandalous allegation, and this the defendant should do fact, if any of those grounds is present, the court can
before filing his answer to the complaint. motu proprio dismiss the case.
 Those are the only grounds that the court can motu
But even without such motion from the defendant, the court proprio dismiss a case. Since all other grounds are
may, on its own initiative, and at any time or even after the waiveable the court cannot dismiss the case motu
defendant had already filed his answer to the complaint, proprio.
direct that such allegation be stricken out for being
impertinent, irrelevant, or scandalous. Example: Improper Venue
If the case is filed in an improper venue, there must be a
 Such is without prejudice to appropriate sanctions that motion to dismiss it must be alleged in an answer as an
may be meted out to the pleader and/or his lawyer, affirmative defense. Failure to allege in a motion to dismiss
which may even include criminal prosecution for libel. or answer deemed waived as a rule.

If the scandalous matter is contained in the Rejoinder, However, being one of the exceptions, that the court has no
which under Section 10, Rule 6 of the Amended Rules, jurisdiction over the subject matter, if there is no motion to
seems to be the last pleading, then the motion to strike dismiss or if there is no allegation in the answer objecting to
out the same may be filed by the plaintiff within 20 days the filing of the case at the wrong venue, the court cannot
after service of the Rejoinder. motu proprio dismiss the case.

--00—
RULE 9 “Residual Prerogatives” refer to the power of the court to
dismiss a case motu proprio based on the four grounds
EFFECT OF FAILURE TO PLEAD
mentioned.

Section 1. Defenses and objections not pleaded.  Catud vs. Palanca Jr., September 7, 2004.
Defenses and objections not pleaded either in a motion to --00--
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on Atty. G:
record that the court has no jurisdiction over the subject To reiterate, these grounds may be pleaded in the answer by
matter, that there is another action pending between the way of affirmative defenses, pursuant to Section 5, Rule 6 of
same parties for the same cause, or that the action is barred the Amended Rules, in relation to Section 12, Rule 8 of the
by a prior judgment or by statute of limitations, the court shall Amended Rules. Notably, these grounds may also be
dismiss the claim. utilized in filing a motion to dismiss pursuant to Section 12(a)
of the Amended Rules. Verily, the following RULES may be
Judge D: Motion to dismiss, under the present amendment, formulated:
as a rule is no longer allowed. But there are instances that
MTD can be file, e.g. defective certificate against forum 1) The filing of a motion to dismiss prior to the filing of
shopping. the answer is allowed for as long it is based on any or
all of the following grounds:
The remedy of the defendant for his grounds for dismissal is a. that the court has no jurisdiction over the
to necessarily raised in his answer, otherwise considered subject matter;
waived.

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b. that there is another action pending between such evidence and that he even prayed the court to rule on
the same parties for the same cause; or that issue. The court, in that situation, may tackle and
c. that the action is barred by a prior judgment; resolve such issue on novation of obligation.
or
d. that the claim is barred by statute of The above situation may, thus, be taken as an additional
limitation. These are the four permissible exception to the general rule set forth under the first
grounds for filing a motion to dismiss; sentence of Section 1, Rule 9.

2) If no such motion to dismiss is filed based on any or all

of the above-enumerated grounds, then any or all of the Section 2. Compulsory counterclaim, or cross-claim, not
said grounds must be pleaded in the answer by way of set up barred.
affirmative defenses, together with any or all of the A compulsory counterclaim, or a cross-claim, not set up shall
grounds enumerated under items (1) to (5) of be barred.
paragraph (a), Section 12, Rule 8, of the Amended
Rules (which are no longer grounds for filing a motion Compulsory Counterclaim or Cross-claim; we have
to dismiss, as they should just be pleaded in the answer discussed this already. Again, if not alleged in the answer,
by way of affirmative defenses); they are deemed waived or barred.

3) But even if any or all of the above-enumerated grounds Q: Is there a possibility that a plaintiff becomes a
are not raised in the motion to dismiss or pleaded in the defending party?
answer by way of special defenses, the case or claim A: Yes, as regards permissive counterclaim. So this
may still be dismissed (motu proprio) on any or all of defending party is not limited to a defendant.
those grounds, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction Atty. G:
over the subject matter, that there is another action The foregoing rule must be read in conjunction, as it is in
pending between the same parties for the same cause, line, with Section 8, Rule 11 of the Amended Rules, which
or that the action is barred by a prior judgment, or by provides:
statute of limitations, pursuant to Section 1, Rule 9 of
the Amended Rules. Section 8. Existing counterclaim or cross-
claim.
That the case may be dismissed on the ground of lack of A compulsory counterclaim or a cross-claim that a
jurisdiction over the subject matter, as provided for under defending party has at the time he or she files his
Section 1, Rule 9 of the Amended Rules, even if such or her answer shall be contained therein.
ground is not raised either in a motion to dismiss or in the
answer by way of affirmative defense, is all the more The reason for the foregoing rule is to avoid multiplicity of
buttressed by the doctrine that lack of jurisdiction over suits and to dispose of the whole matter in controversy in
the subject matter can be raised at any time, even for one action, and adjustment of defendant’s demand by
the first time on appeal, because jurisdiction over the counterclaim rather than by independent suit (Reyes vs.
subject matter is conferred by law and cannot, therefore, be Court of Appeals, 38 SCRA 138).
waived, subject however to the principle of estoppel by
laches as enunciated in the Tijam case. Example:
Waldi filed a complaint against me for allegedly causing
Let it be stressed, however, that while the rule is that damage to his car due to my reckless driving. In my answer,
defenses and objections – other than (1) that the court has I denied that I was driving my car recklessly, as I rather
no jurisdiction over the subject matter; (2) that there is asserted therein that it was Waldi who was negligent in
another action pending between the same parties for the driving his car, and that he was the one who hit and
same cause; or (3) that the action is barred by a prior damaged my car. Yet, in my answer, I did not pray that
judgment; or (4) that the claim is barred by statute of Waldi be adjudged liable instead for the damages of my car.
limitation – that are not pleaded either in a motion to dismiss
or in the answer are deemed waived, yet such rule would Obviously, during the trial I cannot present evidence to
not apply to a situation where an omitted defense is establish my claim on the damages to my car, more so if
belatedly raised during the trial but which the party- Waldi will object thereto.
disputants nonetheless submitted to the court for
resolution (Florentino Atillo III vs. Court of Appeals, G.R. Q: If, after trial, court finds that, indeed, Waldi is at fault,
No. 119053, January 23, 1997). For, in that situation, parties can the court award damages for my car?
will be in estoppel. A: No, the court cannot, in the very same case, award
damages in my favor.
Example:
In an action for collection of unpaid loan, defendant filed his Q: But can I file a separate case for the damages on my
answer in which the only affirmative defense that he car?
interposed is payment. During the trial, however, he A: Not anymore. The rule is very clear. A compulsory
presented evidence tending to prove that his obligation has counterclaim not set up shall be barred.
been extinguished by way of novation, and, for one reason
or another, the plaintiff did not interpose any objection to

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Section 3. Default; Declaration of. 2. Rendition of Judgment by Default.

If the defending party fails to answer within the time allowed
therefor, the court shall, upon motion of the claiming party This is the phase contemplated under the second sentence
with notice to the defending party, and proof of such failure, of Section 3, Rule 9 of the Amended Rules, as when the
declare the defending party in default. Thereupon, the court court would render judgment granting the claimant such
shall proceed to render judgment granting the claimant such relief his or her complaint and/or the facts proven may
relief as his or her pleading may warrant, unless the court in warrant.
its discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court. Note: This can be had also under Section 3(c) and Section
5, Rule 29 of the Amended Rules, when a party refuses to
(a) Effect of order of default. — A party in default shall be answer any question in oral examination in a deposition or
entitled to notices of subsequent proceedings but shall any written interrogatory under Rule 25, or comply with the
not take part in the trial. modes of discovery (This is not, however, the trust of the
present discussion).
(b) Relief from order of default. — A party declared in
default may at any time after notice thereof and before As the foregoing provision mentions of a “defending party”,
judgment, file a motion under oath to set aside the then default may be had or taken not only as against the
order of default upon proper showing that his or her original defendant to the action, but also as against the
failure to answer was due to fraud, accident, mistake or original plaintiff (with respect to a permissive counterclaim of
excusable negligence and that he or she has a the defendant), or a co-defendant (with respect to the cross-
meritorious defense. In such case, the order of default claim), or a third (fourth, etc.)-party defendant (with respect
may be set aside on such terms and conditions as the to the third (fourth, etc.)-party complaint), conformably with
judge may impose in the interest of justice. the definitions given under Section 1, Rule 3 of the Rules of
Court,
(c) Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several ELEMENTS FOR DECLARATION OF DEFAULT:
defending parties, some of whom answer and the
others fail to do so, the court shall try the case against 1) The court must have validly acquired jurisdiction
all upon the answers thus filed and render judgment over the person of the defending party either by
upon the evidence presented. service of summons or voluntary appearance (Laus vs.
Court of Appeals, 219 SCRA 688).
(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount 2) The claiming party must file a motion to declare the
or be different in kind from that prayed for nor award defending party in default (Sablas vs. Sablas, 526
unliquidated damages. SCRA 292, July 3, 2007)

(e) Where no defaults allowed. — If the defending party in  The rule is different, however, in environmental
an action for annulment or declaration of nullity of cases. Should the defendant fail to answer within
marriage or for legal separation fails to answer, the the period provided, the court shall, on its own
court shall order the Solicitor General or his or her accord, declare the defendant in default and, upon
deputized public prosecutor, to investigate whether or motion of the plaintiff, shall receive evidence ex
not a collusion between the parties exists, and if there parte and render judgment based thereon and the
is no collusion, to intervene for the State in order to see reliefs prayed for. Take note that the motion is just
to it that the evidence submitted is not fabricated. for the reception of the evidence ex parte (Section
15, Rule 1, Part II, Rules of Procedure for
Environmental Cases).
Atty. G:
Default is a procedural concept that occurs when the 3) The defending party must be notified of the motion to
defending party fails to file his answer within the declare him in default (Momarco Import Company, Inc.
reglementary period. It has two stages, thus: Villamena, G.R. No. 192477, July 27, 2016).

1. Declaration of Default. 4) The claiming party must prove that the defending
party failed to file his answer within the time therefor
This is the phase contemplated under the first sentence of (Momarco Import Company, Inc. Villamena, G.R. No.
Section 3, Rule 9 of the Amended Rules. This happens 192477, July 27, 2016).
when a party-disputant fails to file his answer to the pleading
asserting a claim against him, within the time specified in the  In some cases, failure to furnish plaintiff with copy
rules – Rule 11 of the Amended Rules – of within such of answer is ground for default (Gonzales vs.
extended time as allowed by the court. Take note that this is Francisco, 49 Phil. 747; Ramirez and Ramirez vs.
the only instance wherein a defendant can properly be Court of Appeals, G.R. No. 76366, July 3, 1990).
declared in default. This failure is not, however, fatal because the
declaration of default may be set aside by a timely
and proper motion with the requisite affidavit of

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

merit and provided no loss of time occurs - Presenting evidence before the clerk of court is
(Banares vs. Flordeliza, et al. 51 Phil. 786). the same as presenting evidence before the judge.
The receiving of evidence should be done before
 A plaintiff who fails or chooses not to answer a the clerk of court because there's no hassle as
COMPULSORY COUNTERCLAIM cannot be there is no opposing party, meaning no one will
declared in default, principally because the issues object.
raised in the counterclaim are deemed - There is no need for a ruling as to the receiving of
automatically joined by the allegations in the evidence because there is no opposing party.
compliant (Gojo v. Goyala, 35 SCRA 557; Metal
Engineering Co. vs. Court of Appeals, G.R. No. The declaration of default of the defending party, does it
95631, October 28, 1991). mean that the victory of the plaintiff is imminent?

5) There must be a hearing of the motion to declare the If complaint insufficient/allegations not proved
defending party in default. The Court could dismiss the case for insufficiency of cause
of action or that the complaint is sufficient but the allegations
 An order of default cannot be issued moto proprio therein were not sufficiently proved despite the absence of
(Philippine British Co. vs. De Los Angeles (63 the defending party.
SCRA 50), except in environmental cases.
EFFECT OF DEFAULT
 As no default could be had without any motion,
then if the defendant filed his answer, albeit (a) Effect of order of default. — A party in default
belatedly, where no motion is filed yet to declare shall be entitled to notice of subsequent
him in default and/or where no order is issued yet proceedings but not to take part in the trial.
declaring him in default, and there is no showing
that he intended to delay the case, then his A party in default should be entitled to notice on the
answer should be ADMITTED (Cathay Pacific subsequent proceedings only. You cannot participate in the
Airways, Ltd. vs. Romillo, G.R. No. 64276, March proceedings because you lose your standing in court.
4, 1986; San Pedro Cineplex Properties, Inc. vs.
Heirs of Manuel Humada Enano, 635 SCRA 421). “Loss of standing in court”
It is the consequence of an order of default. He cannot
Judge D: appear therein, adduce evidence and be heard nor take
If the defending party fails to answer within the time allowed, party in trial. He loses his right to present his defense,
the court shall upon motion with notice to the defending control the proceedings and examine the witnesses. He has
party (there must be a motion and notice to the defending no right that his pleadings will be acted upon or to object to
party) and proof of such failure, the court shall declare the evidence (Cavile vs. Florendo, G.R. No. 73039, October 9,
defending party in default. 1987). The reception of evidence may even be delegated by
the judge to the clerk of court.
What is the effect after the court shall have properly
declared the defending party in default? Example:
The court has two options: The period to file an answer has lapsed then the plaintiff
1. To render judgment based on the allegations in didn't notice about it. Then you file a late answer. Should the
the complaint/pleading; or court consider your answer?
2. To require plaintiff to present evidence ex parte.
Yes, before the issuance of the order in default, the court
“Ex-parte presentation of evidence” means without the has to accept because there is no order yet declaring him in
participation of the defending party. The reason is because default.
once the defending party is properly declared in default, he
lose his standing in court. In other words, he can't anymore It is the issuance of the order that will cause lose in the
participate in the proceedings in court although he is entitled standing in court of the defendant. Without it, he can still
to notices. submit his answer.

How is it done? Exception: If the case is governed by the Rules on

The ex-parte presentation of evidence by the plaintiff can be Summary Procedure and Small Claims, under such Rules,
done before the clerk of court. filing of late answer is strictly prohibited and filing a motion to
declare in default is not allowed.
“Clerk of Court”
- He is the court officer next to the judge. He has Options of the court when defendant is declared in
supervisory powers. He is the head of office. He is default:
the supervisor of all personnel in the court.
- The clerk of court from RTC to Supreme Court 1. The court may immediately render judgement based on
should be a lawyer. The clerk of court who can the allegations in the pleading and its annexes.
receive evidence should be a lawyer. He will act Provided, the allegations in the complaints are
like a judge. sufficient.

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 This is because the allegations in the thrown out of court (S.C. Johnson & Sons vs. Court of
complaint are deemed uncontroverted they Appeals, G.R. No. 54040, August 14, 1990).
are already admitted as true.
Rationale: The defaulted defendant is entitled to notice of
2. If there are questions that needs to be clarified then the the subsequent proceedings and served with the subsequent
court may require submission of evidence by the pleadings and orders (although he cannot take part of the
plaintiff. trial) is because he still has the right to appeal in the case
and, in his appeal, he may, aside from attacking the
 Due to the amendments which requires all the evidence propriety of the relief awarded therein, assign as error the
and documents to be attached in the pleading or order of the court declaring him in default, or refusing to set
complaint, it is now the discretion of the court to such order of default as the case may be.
conduct a hearing, it is not mandatory.
 If the court decides to conduct hearing then the NOTE: The defaulted defendant must be served with
presentation of the evidence by the plaintiff would be amended pleadings and supplemental pleading. Thus, if the
done ex parte hearing, without the participation of the defendant was declared in default upon the original
defendant complaint, the filing of the amended complaint (involving
substantial amendments) resulted in the withdrawal of the
Q: is if 100% na ma daog and plaintiff? of the original complaint, hence, the defaulted defendant is
A: No, even if the defendant has been declared in default entitled to file an answer to the amended complaint as to
the burden of proof to establish his claim with the required which he was not in default. If the supplemental pleading
amount of evidence is still with the plaintiff. (Gahudo v. introduced new claims, he is entitled to plead thereto as
Traders Royal Bank, March 21, 2006) jurisdiction had not been acquired over him with respect
thereto [Florence D. Regalado; Remedial Law Compendium,
Atty. G: Volume I, 9TH Revised Edition, p. 191].
NOTE:
 However, that where it is the plaintiff who is declared
in default (with respect to the PERMISSIVE (b) Relief from order of default. — A party declared
COUNTERCLAIM of the defendant), the plaintiff is not in default may at any time after notice thereof and
divested of his standing in court or right to produce before judgment file a motion under oath to set
evidence on his complaint nor will it per se entitle the aside the order of default upon proper showing
defendant to immediate judgment on the counterclaim that his failure to answer was due to fraud,
(Navarro vs. Bello, 102 Phil. 1019). accident, mistake or excusable negligence and
that he has a meritorious defense. In such case,
The consequence, therefore, is that the plaintiff is not the order of default may be set aside on such
allowed to introduce evidence to oppose defendant’s terms and conditions as the judge may impose in
PERMISSIVE COUNTERCLAIM once the defendant the interest of justice.
presents evidence therefor. It is submitted that the
same may happen where the defendant is merely REMEDIES FROM THE ORDER OF DEFAULT
declared in default with respect to a cross-claim, in that a) Before judgment
said defendant can still participate in the trial and b) After judgment,
present evidence to meet or oppose the main c) After the decision has become final and executory.
complaint.

 Further, that a defaulted party is not prohibited nor BEFORE JUDGMENT

disqualified from taking the witness stand and testify for
his co-defendants who have not been declared in Remedy after notice of order of default and before judgment,
default. There is no reason why the non-defaulting party in default can:
defendants should be deprived of the testimony of the a) File a motion under oath to set aside the order of
party in default and thereby also suffer the default, and properly show that (a) the failure to
consequences of the latter’s procedural omission answer was due to FRAUD, ACCIDENT,
(Cavile vs. Florendo, G.R. No. 73039, October 9, 1987). MISTAKE, OR EXCUSABLE NEGLIGENCE
(FAME), AND
 Furthermore, that in an expropriation proceeding, the b) He has meritorious defense contained in an
defendant who fails to answer may still present affidavit of merit
evidence as the amount of compensation to be paid for
his property (Section 3, Rule 67 of the Rules of Court). Thus, his motion must be accompanied by a statement of
the evidence which he intends to present if the motion is
“Entitled of notice only” granted and which is such as to warrant a reasonable belief
But while the party in default losses his standing in court, he that the result of the case would probably be otherwise if a
shall be entitled to notice of subsequent proceedings but not new trial is granted. A default will not be lifted if the
to take part in the trial (subject, of course, to the exception or defendant has no valid defense (Development Corp. vs. IAC,
qualification as, thus, obtaining the case of Navarro v. Bello, 143 SCRA 62).
supra). In other words, a defaulted defendant is not actually

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If it is due to Fraud, Accident, Mistake or Excusable alleging (FAME) as the reason why you failed to
negligence (FAME), the motion must alleged specifically the file your answer on time, you should also indicate
circumstances that would constitute FAME. If the defendant your meritorious defense. Your defense must be
would just simply alleged that he was not able to file an meritorious.
answer because of FAME and without mentioning the
circumstances, then the motion would be denied. Example: You fully paid the debt, full payment.
This is a meritorious defense. Attached the
i. “FRAUD” receipts or appropriate documents and affidavits.

This refers to the insidious words or machinations used by c) You should also execute an AFFIDAVIT OF
the adverse party that prevented the defendant from filing his MERIT.
answer.
The circumstances constituting (FAME) plus your
Example: meritorious defense must be alleged in the
If a case was filed against the defendant and the latter went affidavit. That affidavit is what we call as
to the plaintiff and begged the plaintiff to give him additional AFFIDAVIT OF MERIT. Your Affidavit of Merit
time which was agreed by the plaintiff. Then a month later, must be attached to your motion. Aside from that,
the defendant received an order of default. The reason why your motion must be verified.
he was not able to file an answer was because he was
assured by the plaintiff that he will be given enough time. “Verification”
Verification is an affidavit stating that the movant has read
ii. “ACCIDENT” – one is prevented from a fortuitous the allegations, caused the preparation and the allegations
event. therein are true and correct based on his personal
knowledge or authentic records.
Defendant had a heart attack or was victimized by a
typhoon. If your motion is not verified or not accompanied by an
affidavit of merits or if your motion does not allege any
iii. “MISTAKE” circumstances, the motion will be denied.

The mistake is on the part of the defendant. Ponio vs. IAC, 133 SCRA 577
It was held that an affidavit of merit is not necessary, where
Example: a motion to lift the order of default is grounded on the very
Defendant begged that he will just pay and the plaintiff root of the proceedings, as when the court has not acquired
agreed. He thought that he didn't have to answer the plaintiff. jurisdiction over the defendants.
Defendant mistakenly believed that he no longer has to file
an answer.
Lim Tanhu, et al. vs. Ramolete, et al., G.R. L-40098,
August 29, 1975
iv. “EXCUSABLE NEGLIGENCE”
Also, if the motion to lift an order of default is under oath and
contains the reasons for the failure to answer, as well as his
The negligence is on the part on the defendant. Negligence
defenses, a separate affidavit of merits is not necessary.
must be excusable.

Caveat: It is advisable though to just attach an affidavit of

Example:
merit to avoid any technical objection on that matter. Again,
He was not able to file an answer because the answer he
it is better to err at the side of caution.
made was left to his secretary to be filed before the court.
However, the secretary forgot to file it.
NOTE: FAME, there are 4 requisites:
1. FAME
What should be done if the defendant was not able to
2. Meritorious defense;
file an answer due to FAME?
3. Accompanied by affidavit of merit;
a) The defendant should file a motion narrating the
4. Verification.
circumstances.

This is the remedy if the court has not yet rendered a

Example: In case of accident, it should be
decision.
specified as to what kind of accident happened
that prevented you from filing an answer. Same
If the reason why you were not able to file an answer was
with other grounds
not because of FAME, is there a need for an affidavit of merit
i.e., you were not served with summons?
b) Aside from these circumstances, you should
allege in your motion that you have a meritorious
If there is no summons served on you, then the order of
defense.
default as well as the decision is VOID because the court
has no jurisdiction over the case.
While it is true that you haven't filed an answer
because of an accident but if you have a
Remedy: You can file a motion to set aside the default order
nonsense defense, then no use. Aside from
on the ground of lack or improper service of summons. If that

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 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

is the ground, then there is no need to attach an affidavit of evidence that his collectible was instead 1M. then the court
merits. cannot grant the amount of 1M because that would exceed
the amount prayed for by the plaintiff. If the court granted a
Note: Upon the issuing of the order of default the court may higher amount, that can be a subject of an appeal; or if the
immediately render a decision based on the allegations of court grant unliquidated damages, such as moral damages,
the pleadings and annexes. If there has been a decision exemplary damages, the remedy of the defendant would be
renedered and the decision is adverse to the defendant, to file appeal.
what is his remedy? File a motion for new trial.
BITT v. Sps. Jonas, Dec 9, 2015
AFTER JUDGMENT BUT YET FINAL AND EXECUTORY SC: The rule is that the right to appeal to the judgment of
default can be done in grounds that the amount of judgment
If the court has already rendered jurisdiction which has not is excessive or different from that being prayed for or that
become final and executory, the aggrieved party may: the plaintiff failed to prove the material allegation of his
a) File a motion for new trial under Rule 37 or complaint or that the decision is contrary to law.
b) File an Appeal
c) Motion for Reconsideration
AFTER THE DECISION HAS BECOME FINAL AND
If the motion for new trial is denied, or where he did not file EXECUTORY
one, he may also file an appeal from and on the merits
(from the judgment by default) within the balance of the If the decision has already become final and executory, the
period for perfecting an appeal (15 days from notice of the remedies are:
judgment by default, except in habeas corpus where the a) Petition for Relief under Rule 38.
period to perfect an appeal is 48 hours), assailing such  Same grounds and requisites and the same
judgment by default as being contrary to the evidence or the effect with new trial.
law and thereby raising, as one of the issues in that appeal,  Only availed when was not able to avail for
the propriety of declaring him in default (Lina vs. Court of new trial.
Appeals, 135 SCRA 637, Republic vs. Sandiganbayan, 540
SCRA 431). b) Petition for Certiorari if the judgment issued by
the court is improper or the court has acted grave
What is alleged in the motion for new trial? abuse of discretion amounting to lack or excess of
State the same things as in the motion to set aside the order jurisdiction.
of default. State the grounds why he is asking for the  Improperly declared in default, e.g. no valid
presentation of evidence. Motion for new trial meaning he service of summons, hence the court was not
ask the court to open the case and allow him to present able to validly acquire the jurisdiction over the
evidence. What is alleged? persons w/n the period of 60 days.
1. FAME  FAME and affidavit of merits does not apply.
2. Meritorious defense;
3. Accompanied by affidavit of merit; c) Annulment of judgment under Rule 47.
4. The Motion for New Trial must be verified,
provided that the decision has not yet been final  If one fails to file Petition for certiorari
and executory. within 60 days, another remedy is Rule 47
 Because if the court does not acquire
What is in the Affidavit of Merit? jurisdiction, example no proper service of
Is one which states the nature and character of the FAME summons, the court does not have
meaning the circumstances in which the motion for new trial jurisdiction over the person of the defendant
or to lift the order of default is based. The facts constituting so the judgment shall be annulled under Rule
the movants good and substantial defense. The evidence 47.
which he intends to present if his motion for new trial is  Another ground could be extrinsic fraud, a
granted. (Miranda v. Legazpi, 92 Phil 290) kind of fraud that prevented him or her from
filing his answer.
APPEAL
This is another remedy. However, the problem in appeal is  Gomez v. Montalban march 14, 2008
that there is no other documents to be reviewed by the high
court except the evidence of the plaintiff, because there was Atty. G
no evidence presented by the defendant. So most likely the NOTE:
high court would affirm the decision of the higher court. An order of default is interlocutory and is not, thus,
appealable (Vincilan vs. Vano, 17 SCRA 758). But if the
Is there a possibility that the appeal of the defendant is order of default is patently void or improvidently issued, as
meritorious? Yes, look at Par.D. the court cannot remedies where the reglementary period to answer had not yet
or relief which exceeds the amount or different than that expired, then CERTIORARI will lie even without waiting for
being prayed for by the plaintiff. the default judgment (Viacrusis vs. Estenzo, L-18457,
June 30, 1962). Where a default judgment was already
Ex: the amount he wants to claim is 500,000 but during the rendered, he can also resort immediately to certiorari to
trial when he presented evidence the plaintiff presented an challenge both the order of default and the judgment by

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default, not necessarily the merits or correctness of the a. The defendant in default may, at any time after
judgment (Matute vs. Court of Appeals, et al., L-26751, Jan. discovery thereof and before judgment, file a motion,
3, 1969), especially where a writ of execution was already under oath, to set aside the order of default on the
issued, hence appeal would not be a speedy and adequate ground that his failure to answer was due to fraud,
remedy (Zenith Insurance Corp. vs. Purisima, et al., G.R. accident, mistake or excusable negligence, and that he
No. 57535, May 24, 1982). has a meritorious defense (Sec. 3, Rule 18 [now Sec.
3(b), Rule 9]);
Courts, however, should be liberal in setting aside orders in
default, for a default judgment is frowned upon and are not b. If the judgment has already been rendered when the
looked upon with favor for such judgment may amount to a defendant discovered the default, but before the same
positive and considerable injustice to the defendant and the has become final and executory, he may file a motion
possibility of such serious consequences necessitates a for new trial under Section 1 (a) of Rule 37;
careful examination of the grounds upon which the
defendant asks that it be set aside (Montinola vs. Planters c. If the defendant discovered the default after the
Bank, G.R. No. 66183, May 4, 1988). After all, default is not judgment has become final and executory, he may file a
a mechanical gadget to accelerate judicial litigations petition for relief under Section 2 [now Section 1] of
(Fuentes vs. Macandog, 83 SCRA 648). Rule 38; and

Republic vs. Sandiganbayan, 540 SCRA 431, d. He may also appeal from the judgment rendered
Supreme Court enunciated that there is such thing as against him as contrary to the evidence or to the law,
IMPLIED LIFTING of an order of default. In that case, former even if no petition to set aside the order of default has
President Marcos was declared in default for failure to file an been presented by him (Sec. 2, Rule 41).
answer. His representatives failed to file a motion to order
the order of default, but his son, Ferdinand Marcos, Jr., and In addition, and as this Court earlier mentioned, a petition
as executor of his father’s estate, filed a motion for leave to for certiorari to declare the nullity of a judgment by default
file a responsive pleading and three motions for extension of is also available if the trial court improperly declared a party
time to file an answer which where all granted by the in default, or even if the trial court properly declared a party
Sandiganbayan. Ferdinand Marcos, Jr. also filed a motion in default, if grave abuse of discretion attended such
for bill of particulars which was also granted. Given such declaration.
factual backdrop, our Supreme Court held, thus:
Jugde D: I had this case before. The client approached me,
“While it is true that there was no positive act on the part of when I studied his case I found out that the summons was
the court to lift the default order because there was no served through “habal-habal” driver, so there was improper
motion nor order to that effect, the anti-graft court’s act of service of summons. So, we filed petition for certiorari to
granting respondent the opportunity to file a responsive declare the decision void.
pleading meant the lifting of the default order on terms the
court deemed proper in the interest of justice. It was the --00--
operative act lifting the default order and thereby reinstating
the position of the original defendant whom respondent is EFFECT OF PARTIAL DEFAULT
representing, founded on the court’s discretionary power to (c) Effect of partial default. — When a pleading
set aside orders of default.” asserting a claim states a common cause of action
against several defending parties, some of whom
If the court sets aside the order of default, the defendant is answer and the others fail to do so, the court shall
restored to his standing and rights in the action. However, try the case against all upon the answers thus filed
proceedings already taken are not to be disturbed (Jaime and render judgment upon the evidence
vs. Maniego, 101 Phil. 828), although it is within the presented.
discretion of the court to re-open the evidence submitted by
the plaintiff and enable the defendant to challenge the same, If same common cause of action
as by crossexamination of plaintiff’s witnesses or introducing When the defendants are sued under the same common
countervailing evidence (Denso, Inc. vs. IAC, et al., G.R. cause of action, and they have common defense, the
No. 7500, February 27, 1987). The lifting of an order of answer filed by the answering defendant will inure to the
default does not revert the case to its pre-trial stage, much benefit of the non-answering defendant. Otherwise, if they
less render a second pre-trial mandatory (DBP vs. Court of have different defenses then the non-answering defendants
Appeals, L-49410, Jan. 26, 1989). will not inure to the benefit to the answer and evidence
presented by the answering defendants.
 Gomez vs Montalban March 14, 2008
 Lina v. Court of Appeals Note that the non-answering defendant can be declared in
default but the court cannot render decision yet. The
--00— decision of the court should be based on the answer of the
answering defendants and the evidence he would present,
The two cases enumerate the remedies available to a party that is if the defendants share the same common defense.
declared in default:
 Manguiat v. CA, Aug 20, 2008

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Example: of evidence a higher amount of damages (Keller vs. GOB

Mr. X filed against D and E for collection of money as Group Marketing, 141 SCRA 86).
solidary debtors. It was only Mr. D who answered. Mr E was
declared in default. So the court will try and hear the case It is, however, suggested that while the above provision
based only on the answer of Mr D. mentions about “unliquidated damages” (not stipulated by
the parties), the rule does not altogether prohibit an award
Example: for unliquidated damages for as long as the amount thereof
“X” filed case for recovery of a parcel of land against “A”, “B”, is specified in the complaint and supported by the evidence.
and “C”, the three being siblings and who all occupied the
litigated parcel of land under claim, and in the concept, of co-
ownership having allegedly. “A” and “B” jointly filed an WHERE NO DEFAULTS ALLOWED
answer, but “C” did not file join with them in filing that (e) Where no defaults allowed. — If the defending
answer, much less has he filed a separate answer to the party in an action for annulment or declaration of
complaint. Even if “C” is declared in default, he would stand nullity of marriage or for legal separation fails to
to be benefited by the answer filed by his siblings, “A” and answer, the court shall order the prosecuting
“B”. attorney to investigate whether or not a collusion
between the parties exists, and if there is no
Thus, in the above, situation, if the answering defendants, collusion, to intervene for the State in order to see
“A” and “B”, succeed in defeating the “X’s” claim, such to it that the evidence submitted is not fabricated.
positive result inures also to the benefit of “C” (Bringas vs.
Hernando, G.R. No. 51933, September 24, 1986). Cases that the court cannot award default order, cases such:
a) Annulment of Marriage
But where both the answering defendants, “A” and “B”, died b) Legal separation
during the pendency of the action such that the case is d) Declaration of Nullity of Marriage
dismissed as to the both of them, the answer that they filed
would not inure to the advantage of “C”. The same rule In the above-mentioned cases, if the respondent failed to file
applies where the defenses alleged by “A” and “B” are an answer, the court shall not, as it cannot, issue an order
personal to them, as when, for example, they both alleged declaring the respondent in default, in that the court will
that they were but actually forced or coerced by “C” to just order the Solicitor General or his or her deputized public
likewise enter and occupy the property (by analogy, see prosecutor, to investigate whether or not a collusion between
Luzon Surety vs. Magbanua, 72 SCRA 255). the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is
Imson vs. Court of Appeals, not fabricated. In other words, there will be reception of
G.R No. 106436, December 3, 1994 evidence ex parte, without the court issuing, as it cannot
A party in default loses his standing in court. But where there issue, an order of default.
are several defendants in a case and some of them file their
answer while one or a few of them are declared in default, In the following cases also, there will be reception of
the answer thus filed may inure to the advantage of the evidence ex parte after the defendant or respondent fails to
defaulted defendant(s) if (1) the complaint asserting a claim file an answer, without the court having to issue, as it cannot
states a COMMON CAUSE OF ACTON against the issue, an order of default for the reason that the filing of a
defendants, and (2) all the defendants are indispensable motion for default is prohibited therein, viz:
parties to the case.
1. Small claims cases (Section 14, A.M. No. 08-8-7-SC,
 Heirs of Manguiat et al vs CA August 20, 2008 Rules of Procedure for Small Claims Cases as
 Lim Tanhu vs Ramolete August 29, 1975 amended);
2. Writ of Amparo cases (Section 11(h), Rules on the Writ
of Amparo);
EXTENT OF RELIEF TO BE AWARDED 3. Writ of Habeas Data cases (Section 13(h), Rules on the
(d) Extent of relief to be awarded. — A judgment Writ of Habeas Data); and
rendered against a party in default shall not 4. Case governed by the Rules on Summary Procedure
exceed the amount or be different in kind from that (Section 19(h) of the 1991 Revised Rules on Summary
prayed for nor award unliquidated damages. Procedure).

So the court cannot give more than what is asked for. The
court cannot also award unliquidated damages such as
moral and exemplary damages.

If the evidence presented against the defendant should not

justify a judgment for the party, the claim must be dismissed.
And if an unfavorable judgment against the defaulted
defending party be justifiable, it cannot, however, exceed in
amount or different from what is prayed for in the complaint
or pleading asserting a claim, and the prohibition holds true
even if the complainant is able to prove during the reception

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RULE 10 Section 2. Amendments as a matter of right.

AMENDED AND SUPPLEMENTAL PLEADINGS A party may amend his pleading once as a matter of right at
any time before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) calendar days
Section 1. Amendments in general.
after it is served.
Pleadings may be amended by adding or striking out an
allegation or the name of any party, or by correcting a
When is amendment a matter of right?
mistake in the name of a party or a mistaken or inadequate
 As to plaintiff, it is before service of answer
allegation or description in any other respect, so that the
because answer is a responsive pleading to the
actual merits of the controversy may speedily be determined,
complaint.
without regard to technicalities, in the most expeditious and
 As to defendant, it is before filing of the reply by
inexpensive manner.
the plaintiff. The responsive pleading is the reply.
o The reply can be amended as a matter
Amendment of pleading – refers to the process of making
of right within 10 days from its filing
changes or alterations therein.
before the filing of a rejoinder by the
defendant.
As stated in the rules, pleadings are amended by:
1. Adding or striking out an allegation or the name of
Amendment is a matter of right when one need not to file a
any party,
leave of court and can directly filed his amended pleading
2. By correcting a mistake in the name of a party, or
whether a formal of substantial amendment.
3. A mistaken or inadequate allegation or description
in any other respect.
One can amend his pleading as a matter of right only once.
However, if he will amend the pleading for the 2nd time that
2 kinds of amendment:
will now require for a leave of court, even if no responsive
1. Formal amendment
pleading yet is filed.
 Refers only to the defect in the designation of the
After a responsive pleading is filed an amendment may be
parties and clerical or typographical corrections,
done only after filing a motion for leave of court except when
Sec.4.
the amendment is merely formal or would refer to formal
amendments only. However, when the amendment is with
2. Substantial amendment
leave of court or would confer jurisdiction upon the court.
(PROCEED TO SEC. 3)
How to indicate your amendment?
Atty. G:
Your pleading shall be changed to Amended complaint,
Verily, the plaintiff may amend his complaint as a matter of
Amended reply, etc.
right if the defendant has not yet served his answer thereto.
And this rule holds true even if the defendant has already
What is the effect of your amended pleadings?
filed a motion to dismiss because a motion to dismiss is not
a responsive pleading (Paeste vs. Jaurigue, 94 Phil. 179;
SEC. 8 Effect of amended pleadings
Bautista vs. Maya-Maya Cottages, Inc., 476 SCRA 416),
An amended pleading supersedes the pleading
or even if such motion to dismiss has already been
that it amends. However, admissions in
submitted for resolution (Republic vs. Ilao, L-16667, Jan.
superseded pleadings may be received in
30, 1962), or even where such motion to dismiss has already
evidence against the pleader, and claims or
been granted by the court for as long as the amended
defenses alleged therein not incorporated in the
pleading is filed before such order of dismissal attained
amended pleading shall be deemed waived
finality (Dauden Hernandez vs. De los Angeles, 27 SCRA
1277; Bautista vs. Maya-Maya Cottages, Inc., supra).
NOTE: Amendments are allowed so that the actual merits of
the controversy may speedily be determined, without regard
But the plaintiff cannot, as a matter of right, amend his
to technicalities, in the most expeditious and inexpensive
complaint for the second time even if the defendant has not
manner.
filed his answer to the complaint. If the plaintiff wants to
amend his complaint for the second time, he needs to obtain
 Make some indications like underline it or make it bold.
a leave of court.
 A prescriptive period is interrupted only upon the filing
of amended complaint if there is new cause of action
Likewise, where the defendant has already filed an answer,
introduced. But if there is no new cause of action
plaintiff needs to obtain leave of court before amending his
introduced, the prescriptive period is deemed
complaint even if such purported amendment is to be done
interrupted upon the filing of the original.
for the first time.
 Amendment can be a matter of right or discretion upon
the court
The foregoing rules equally applies to the defendant. The
defendant can amend his answer once as a matter of right
before the filing by the plaintiff of a reply. But if the defendant
wishes to amend his answer for the second time, he needs
to obtain leave of court to be able to do that even if the

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plaintiff has not yet filed a reply. Defendant likewise needs a same cannot be done because the court has no jurisdiction
leave of court to amend his answer where the plaintiff has over the case. [Santi vs. Claraval GR No. 173915 Feb. 22,
already filed a reply even if such purported amendment is to 2010]
be done for the first time.
While it is a basic jurisprudential principle that an
As for a REPLY, the plaintiff can amend the same as a amendment cannot be allowed when the court has no
matter of right, at any time within ten (10) calendar days after jurisdiction over the original complaint and the purpose
it is served (prior answer). After that 10-day period, the reply of the amendment is to confer jurisdiction on the court, here,
may be amended but only upon leave of court. the RTC clearly had jurisdiction over the original complaint
and amendment of the complaint was then still a matter of
OBSERVATION: right.
Take note, however, that under Section 10, Rule 6 of the
Amended Rules the defendant is allowed to file a rejoinder if SUMMARY: LIMITATIONS TO THE LIBERAL POLICY IN
an actionable document is attached to plaintiff’s reply. So, it AMENDMENTS TO PLEADINGS
is submitted that the plaintiff cannot amend his reply as a When can the court refuse to allow the amendment and
matter of right, or that he needs leave of court so to amend when can you validly oppose it?
his reply, if the defendant has already submitted a rejoinder 1) When the amendment is for the purpose of making the
within the ten-day period from the time of the filing of such complaint confer jurisdiction upon the court (Rosario vs.
reply. Carangdang, 96 Phil. 845);
2) When the amendment is to delay the action (Section 3);
By inadvertence or otherwise, the Amended Rules is also 3) When the amendment is for the purpose of curing a
silent as to the amendment of a rejoinder. So, it is submitted premature or non-existing cause of action (Limpangco
that such rejoinder may likewise be amended as a matter of vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil.
right within 10 calendar days from the time it is served. After 791)
such ten-day period, the rejoinder may be amended but only
upon leave of court. If the court has no jurisdiction, the only power the court has
--00— is to dismiss the case. Amendment cannot be allowed if the
purpose is to confer jurisdiction, because in the first place,
 Answer to Counterclaim is the responsive pleading of the court has no jurisdiction and it has no power to entertain
counterclaim. the case for lack of jurisdiction. (Santi v. Claraval)

Example:
Defendant obtained a loan. P demanded payment before the Section 3. Amendments by leave of court.
loan became due. D refused. P filed a case but it was before Except as provided in the next preceding Section,
the due date. D filed motion to dismiss for failure to state substantial amendments may be made only upon leave of
cause of action. While motion to dismiss was pending, P court. But such leave shall be refused if it appears to the
filed an amended complaint alleging that the loan has court that the motion was made with intent to delay or confer
already become due. Should the court admit the amended jurisdiction on the court, or the pleading stated no cause of
complaint? action from the beginning which could be amended. Orders
of the court upon the matters provided in this Section shall
No. When the case is filed prematurely, the same is be made upon motion filed in court, and after notice to the
dismissible because there is failure to state the cause of adverse party, and an opportunity to be heard.
action, amendment is not proper when the purpose is to cure
the complaint which fails to state cause of action because of After a responsive pleading is filed an amendment may be
prematurity. [Swagman Hotels vs CA April 8, 2005] done only after filing a motion for leave of court except when
the amendment is merely formal or would refer to formal
A complaint whose cause of action has not yet accrued amendments only. However, when the amendment is with
cannot be cured or remedied by an amended or leave of court or would confer jurisdiction upon the court.
supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. Such an action Example:
is prematurely brought and is, therefore, a groundless suit, The P filed a complaint for the recovery of real property. In
which should be dismissed by the court upon proper motion the complaint there is no statement as to the assessed value
seasonably filed by the defendant. The underlying reason for of the real property involve. And so defendant D filed an
this rule is that a person should not be summoned before the answer with the affirmative defense of lack of jurisdiction
public tribunals to answer for complaints which are over the subject matter. Thereafter, P realized that indeed he
immature. forgot to allege in the complaint the assessed value so he
filed a motion for leave to amendment his complaint. Would
 Also amendment cannot be done to confer that be allowed?
jurisdiction on the court.
No, because an amendment to confer or give jurisdiction
Example: upon the court cannot be allowed. When the court has no
A case filed before RTC and the amount is only 200,000, the jurisdiction over the subject matter it has only one power and
court has no jurisdiction. The plaintiff amended the complaint that is to DISMISS on the ground of lack of jurisdiction. It
to change the amount to confer jurisdiction on the court. The cannot grant the motion to amend or grant leave.

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Amendment of the pleading is also not allowed if the Example # 2:

purpose of the amendment is to state a cause of action A case for recovery of unpaid rentals is filed with the
when in fact the complaint does not state the cause of action Municipal Trial Court, where the amount demanded is Php
from the very beginning. 700,000.00. Defendant filed a motion to dismiss on the
ground that the amount demanded exceeds the jurisdictional
Swagman Hotel And Travel Inc. vs. Court of Appeals, amount of the MTC. Before any action could be taken on the
455 SCRA 175 motion to dismiss, the plaintiff amended the complaint to
Plaintiff filed a collection case even if the promissory note is make it an action for unlawful detainer with prayer for
not yet due so the case is premature. The Defendant filed an payment of back rentals. Is the amendment allowed?
answer with the affirmative defense that the plaintiff did not
state a cause of action. The plaintiff filed a motion to amend A: Yes, because it is a matter of right. The defendant has
the complaint arguing that the cause of action has already not yet filed a responsive pleading. Motion to Dismiss is not
matured. Is that allowed? a responsive pleading. Here, the admission of the amended
pleading is a ministerial duty of the court. It requires no
No, so amendment of the pleading cannot be allowed when positive action from the court. Since it would not be acting in
the pleading stated no cause of action from the beginning. this regard, it could not be deemed as acting without
jurisdiction (see Soledad vs. Mamangun, 8 SCRA 110).

Atty. G: Example # 3:
It is important to know whether the purported amendment of An action is filed for collection of an alleged unpaid loan.
pleading is a matter of right or not. When the complaint was filed the promissory note upon
which the cause of action is based has not yet actually
Where the amendment of the pleading is a matter of right, matured. Before the defendant, however, could file his
the pleader may introduce substantial amendments to his answer to the complaint, the promissory note fell due and,
pleading – like introducing a new cause of action or a realizing the pitfall of the original complaint, the plaintiff
defense, or changing the theory of the case – WITHOUT hastily amended the complaint to state therein that the
NEED OF LEAVE OR COURT, and this he can do even if promissory note which served as the foundation of his
the purpose of such purported amendment is to: complainant has already fell due. Is the amendment
a) Confer jurisdiction on the court, or allowed?
b) Introduce a cause of action even where none
actually existed at all at the time of the filing of the A: Yes, because it is a matter of right. The defendant has
pleading sought be amended. not yet filed a responsive pleading. (apply by deductive
reasoning the ruling in Swagman Hotels And Travel Inc.
On the other hand, where the amendment is not a matter of vs. Court of Appeals, 455 SCRA 175; Surigao Mines
right, then substantial amendments may be made only Exploration Co. Harris, 68 Phils. 13).
UPON LEAVE OF COURT. But such leave SHALL BE
REFUSED if it appears to the court that the motion was: NOTE: HOWEVER, that, if in the above three (3) examples,
a) Made with intent to delay, or the defendant in the pertinent action had already filed an
b) Confer jurisdiction on the court, or answer before the plaintiff could amend the complaint, such
c) The pleading stated no cause of action from the amendment could not anymore be done as a matter of right,
beginning which could be amended. and that even if the plaintiff sought for a leave of court before
amending the complaint, such leave of court SHOULD BE
Example # 1: REFUSED by the court, pursuant to Section 3, Rule 10 of
A case for forcible entry is filed with the Regional Trial Court the Amended Rules.
(which has no original jurisdiction over the case), involving a
real property, the assessed value of which is, say, Php The amendment, this time, would require leave of court, a
500,000.00 . The defendant filed a motion to dismiss on the matter which requires the exercise of sound judicial
ground that the RTC has no jurisdiction over the case. discretion. The exercise of this discretion requires the
Without waiting for the resolution of the motion to dismiss, performance of a positive act by the court. If it grants the
the plaintiff filed an amended complaint which transformed amendment, it would be acting on a complaint over which it
the action for forcible entry into an action for quieting of title has no jurisdiction. Its action, therefore, would be one
which falls under the jurisdiction of the RTC (given the performed without jurisdiction. The remedy of the plaintiff, if
assessed value of the property). Is the amendment he wants to really pursue with the case, is not to amend the
allowed? complaint but to WITHDRAW the same, pursuant to Section
2, Rule 17 of the Amended Rules, and thereafter file a NEW
A: Yes, because it is a matter of right. The defendant has or DISTINCT COMPLAINT, but the docket fees that he had
not yet filed a responsive pleading. Motion to Dismiss is not already paid in filing the original/defective complaint would
a responsive pleading. Here, the admission of the amended already be forfeited.
pleading is a ministerial duty of the court. It requires no
positive action from the court. Since it would not be acting in It should be stressed, however, that under Section 3, Rule
this regard, it could not be deemed as acting without 10 of the amended rules, substantial amendments may still
jurisdiction (see Gumabay vs. Baralin, 77 SCRA 258; be allowed even after a responsive pleading is filed,
Rosario vs. Carandang, 96 Phil. 845). provided by that such is done WITH PRIOR LEAVE OF
COURT and provided, further, that such amendments after

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the filing of the responsive pleading is not for the purpose of at all at the time of the filing of the pleading sought be
delay, or to confer jurisdiction on the court, or to introduce a amended.
cause of action where none existed at all at the time of the
filing of the pleading sought be amended, as discussed In actual practice, the amended pleading is ordinarily
hereinbefore. attached to the motion for leave to admit the original
pleading.
Conversely, substantial amendments may, by leave of court,
be allowed to be introduced to the complaint even if the
defendant has already filed an answer, if the purpose of the Section 4. Formal amendments.
amendment is to correct a defect in the allegation of the A defect in the designation of the parties and other clearly
original complaint because, as it then stood, it failed to state clerical or typographical errors may be summarily corrected
a cause of action (as differentiated from lack of cause of by the court at any stage of the action, at its initiative or on
action). motion, provided no prejudice is caused thereby to the
adverse party.
Example:
An action for collection of an unpaid loan is filed in court. At “Formal Amendment” – refers to amendment to correct
the time of the filing of the complaint the promissory note clerical errors, typographical errors, which can be done even
had already matured, but the complaint failed to state, if without leave of court, but any amendment done more than
however, that plaintiff already made a demand upon the clerical errors it requires leave of court.
defendant to pay. Defendant had already filed his answer to
the complaint. Then, subsequently, plaintiff filed a motion for  Amendment could be refused if the purpose is just
leave to amend the complaint, attaching thereto the to delay the proceeding.
amended complaint wherein he incorporated a new
allegation, stating that he had actually made a demand upon Example:
the defendant to pay. The plaintiff wanted to amend his complaint and the trial is
almost over, it has been 10 years since the trial is pending,
Q: Is that amendment substantial? and now you suddenly wanted to amend your complaint. The
A: Yes. court will not allow you to do so since it is clearly a way to
delay the proceedings. The adverse party will also file his
Q: Should the amendment be thus refused? amended answer. It’s like back to square one. Amendment
A: No, the amendment should be allowed because at the is not proper and should be denied if the purpose is just to
time of the filing thereof, the cause of action had already delay the proceedings.
accrued, and the amendment is merely intended to correct
an allegation in the complaint which, by inadvertence or Unlike substantial amendments, a formal amendment may
otherwise, nonetheless failed to state a cause of action be done at any stage of action – before or even after the
(Tamayo vs. San Miguel Brewery, 10 SCRA 115). filing of a responsive pleading, or during the pendency of the
action – and this may be done summarily by the court, at its
Q: Suppose, in the above problem, the promissory note own initiative or on motion, provided no prejudice is caused
had not yet matured when the complaint was filed, and thereby to the parties.
that it only matured after the defendant had already filed
an answer to the complaint. Is that curable by Verily, an amendment from sole proprietorship to name of
amendment of the complaint? owner is a mere formal amendment and should thus be
allowed (Juasing Hardware vs. Mendoza, 115 SCRA 783).
A: No, because, no cause of action ever existed at all then
the original complaint was filed and defendant had already
filed an answer to the original complaint; hence, amendment
Section 5. No amendment necessary to conform to or
of the complaint is no longer a matter of right (Swagman
authorize presentation of evidence.
Hotels And Travel Inc. vs. Court of Appeals, 455 SCRA
When issues not raised by the pleadings are tried with the
175; Surigao Mines Exploration Co. Harris, 68 Phils. 13).
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
Similarly, amendment may be allowed by the court even
pleadings. No amendment of such pleadings deemed
after the defendant had already filed an answer if the
amended is necessary to cause them to conform to the
purpose of such amendment is to include an omitted
evidence.
allegation regarding compliance of the earnest effort toward
a compromise agreement in a suit involving family members
 Relate this to our discussion on Section 1, Rule 9.
-- where such was really had (Versoza vs. Versoza, 26
SCRA 78).
The amended rules provide, that the issues not raised in the
pleadings but tried with the consent of the parties shall
In other words, even after a responsive pleading had already
already be treated as if they had been raised in the
been filed, the court may, upon motion, grant leave to allow
pleadings and as such, there no need to amend the
a substantial amendment for as long the same is not made
pleadings to conform to evidence, as they are deemed
with intent to delay the proceedings and provided that is not
amended already.
for the purpose if the purpose of conferring jurisdiction on the
court, or to introduce a cause of action where none existed

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Under Section 5, Rule 10 of the Amended Rules, when In the above situation, there is no more need to amend the
issues not raised by the pleadings are tried by express or complaint to conform to the evidence presented – unlike
implied consent of the parties, such issues shall be treated in under the previous rule.
all respects as if they had been raised in the pleadings. This
provision is premised on the fact that evidence has been Take note that Section 5, Rule 10 of the Amended Rules
introduced on an issue not raised by the pleadings without cannot be made to apply or to introduce a cause of action
any objection thereto being raised by the parties (MWSS vs. where none existed at all at the time of the filing of the
Court of Appeals, 143 SCRA 623) pleading sought be amended and where a responsive
pleading has already been filed.
Example:
A complaint did not state that there was a demand to pay CAVEAT: As discussed herein-before, the ruling would have
sent to the defendant prior to the filing of the case in court. been different if after the maturity of the promissory notes
During the trial, the P presented a copy of the demanded and before the defendant could file his answer, the complaint
letter to his wtiness. The D did not object to the presentation has been amended to allege the maturity of the promissory
of the demand letter. Because when you present an notes because, in this situation, amendment is matter of
evidence in order to prove a fact which is not alleged in that right.
is objectionable because the rule of that is that a party is
only allowed to present an evidence to prove a fact that is in
issue, a fact alleged in the pleading. However, if the adverse Section 6. Supplemental pleadings.
party did not object to the evidence presented, the Upon motion of a party, the court may, upon reasonable
pleading/complaint would be deemed amended. notice and upon such terms as are just, permit him or her to
serve a supplemental pleading setting forth transactions,
Example: occurrences or events which have happened since the date
On the part of the defendant he was not able to allege that of the pleading sought to be supplemented. The adverse
he already partially paid the amount. During the hearing, he party may plead thereto within ten (10) calendar days from
presented a receipt stating such partial payment, if the notice of the order admitting the supplemental pleading.
adverse party will not object on such the answer would be
deemed amended. But if they will object then amendment Supplemental pleadings are those which aver facts
could no longer be allowed. occurring after the filing of the original pleadings and which
are material to the mature claims or defenses therein
Example: alleged.
In an action for collection of unpaid loan, defendant filed his
answer in which the only affirmative defense that he A supplemental pleading exists side by side with the original.
interposed is payment. During the trial, however, he It does not replace that which it supplements. Moreover, a
presented evidence tending to prove that his obligation has supplemental pleading assumes that the original pleading is
been extinguished by way of novation, and, for one reason to stand and that the issues joined with the original pleading
or another, the plaintiff did not interpose any objection to remain as issues to be tried in action. It is but a continuation
such evidence and that he even prayed the court to rule on of the complaint. Its usual office is to set up new facts which
that issue. The court, in that situation, may tackle and justify, enlarge or change the kind of relief with respect to the
resolve such issue on novation of obligation, albeit it was not same subject matter as the controversy referred to in the
raised in the pleadings. original complaint (Chan vs. Chan, 569 SCRA 106).

In fact, Section 5, Rule 10 may also apply also cover What is the difference between an amendment and a
situations where the complaint insufficiently states a cause supplement?
of action (as differentiated from lack of cause of action), in
that any such insufficiency may be cured by evidence  AMENDMENDED PLEADING – supersedes the
presented during the trial. original pleading.
o This may be a matter of right.
Example: o Presupposes that an occurrence occurred or
An action for collection of an unpaid loan is filed in court. At happen when the original complaint was filed
the time of the filing of the complaint the promissory note in court.
had already matured, but the complaint failed to state, o This should be made with appropriate marks
however, that plaintiff already made a demand upon the (sec.7), you can underline to indicate that
defendant to pay. Defendant had already filed his answer to those are the word/s replacing the original.
the complaint. And plaintiff did not bother to amend his o In your original complaint, it must also be
complaint. But during the trial, plaintiff introduced in evidence underlined and label amended complaint or
the demand letter which he sent to the defendant, and answer.
defendant did not object thereto.
 SUPPLEMENTAL PLEADING – does not result to the
Q: Can the court take cognizance of the demand letter? withdrawal of the original pleading, it shall be
A: Yes, and that’s allowed under Section 5, Rule 10 of the considered as a supplement, an additional to the
Amended Rules. original pleading.
o Always needs a leave of court.

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o Refers to the occurrence that happened after (HDMF) conducted a public bidding for janitorial services to
the filing of the original pleading. the offices of the HDMF for the year 1990. Superclean won
in the bidding and it was supposed to start providing
Example: janitorial services for the year 1990. However, the HDMF
Defendant borrows an amount of P1M payable in 10 monthly refused to honor the award. So, on November 8, 1989,
installments, when the first monthly installment became due, Superclean filed in the RTC of Manila a complaint for
the plaintiff now can file a case to collect the first installment. mandamus and certiorari against HDMF, alleging that at the
While the case is pending, the second installment became public bidding for janitorial services for the year 1990, it won
due, what will the plaintiff do? as the lowest bidder but HDMF refused, without just cause,
to award the contract to them. However, 1990 had elapsed
The plaintiff will file a supplemental complaint, or he can file or ended but the case was still on-going. So, what
a separate complaint because the second installment Superclean did was to file a supplemental complaint in 1991
constitutes another cause of action, the plaintiff has two alleging that, because the contract of service was the
options, whether he will file a supplemental complaint or a furnishing of janitorial services for the year 1990, the delay in
separate complaint. The first complaint will not be dismiss the decision of the case has rendered the case moot and
unlike in the amendment, the original is supersedes. academic without Superclean obtaining complete relief to
redress the wrong committed against it by HDMF, which
Example: relief now consists of unrealized profits, exemplary damages
I obtained a loan from Waldi, in the principal amount of 1 and attorney‘s fees. So, instead of pursuing its prayer for
Million, payable in one year and in four (4) equal quarterly mandamus, Superclean sought for the payment of damages
installments, and for which I issued four (4) post-dated to it through a supplemental complaint.
checks. When the first two post-dated checks matured,
Waldi presented the same for payment but the same were Issue: Is the filing of supplemental complaint proper in order
dishonored for insufficiency of funds. Waldi then filed a case to seek a different relief in view of developments rendering
for sum of money based on the first two post-dated checks the original complaint impossible of attainment?
which bounced. But during the pendency of the case, the
other two post-dated checks fell due and were likewise Held: “The transaction, occurrence or event happening since
dishonored by non-payment. Can Waldi subsequently file the filing of the pleading, which is sought to be
a supplemental complaint for the other two post-dated supplemented, must be pleaded in aid of a party's right of
checks? defense as the case may be. But in the case at bar, the
supervening event is not invoked for that purpose but to
A: Yes, provided that he obtains LEAVE OF COURT. A justify the new relief sought. To begin with, what was alleged
supplemental complaint may be filed for installments that fall as a supervening event causing damage to Superclean was
due after the filing of the complaint (Asiatic Petroleum vs. the fact that the year for which the contract should have
Veloso, 62 Phil. 687). been made had passed without the resolution of the case.
The supervening event was cited not to reinforce or aid the
Note: However, that the supplemental complaint must be original demand, which was for the execution of a contract in
based on matters arising subsequent to the original petitioner's favor, but to say that, precisely because of it,
complaint and that it should be related to the claim or petitioner's demand could no longer be enforced, thus
defense presented therein and founded on the same cause justifying petitioner in changing the relief sought to one for
of action. recovery of damages. This being the case, petitioner's
remedy was not to supplement, but rather to amend its
Leobrera vs. Court of Appeals G.R. No. 80001, February complaint.”
27, 1989, 170 SCRA 711
“A” obtained a loan from a housing loan from the bank, Amended Pleading Supplemental Pleading
evidenced by a promissory note. A few months thereafter “A” As to Subject
secured another loan from the same bank – an agricultural
loan, secured by another promissory note. When the first Refer to the facts existing at Refer to those occurring
promissory note fell due, “A” failed to pay, so the bank filed the time or original pleading; after the filing of the original
an action for collection of the said promissory note. During pleading;
the pendency of the case, the second promissory note for As to Effect
the agricultural loan fell due, so the bank filed a
supplemental complaint to include the second promissory Supersedes the origina Merely supplements;
note in the action. Is the filing of the supplemental complaint As to Time
proper?
Original pleadings may be Always needs leave of court
NO. Although the parties are the same, yet the fact remains amended without leave of
that the two promissory notes pertain to different or separate court before a responsive
loans. pleading is filed;
As to Form
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 The amendment must be There is no such
Facts: Superclean Service Corp. is a company engaged in appropriately marked. requirement in supplemental
janitorial services. The Home Development and Mutual Fund pleadings.

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Atty. G: A: No. My answer to the original complaint would not serve

Where a supplemental pleading is permitted by the court, the as the answer to the supplemental complaint, inasmuch as I
failure to answer thereto when ordered by the court is a did not deny the obligation and the issuance of the checks
ground for default (Del Bros. vs. IAC, 159 SCRA 533). BUT and more so that the said answer interposed a defense that
where the basic and principal issue which had been specifically pertains to the first two (2) checks only; hence, I
previously traversed and joined by the answer remained, may be declared in default insofar as the supplemental
there is no necessity to require the defendant to plead complaint is concerned relative to the other two (2) checks.
further to the supplemental complaint and there is no legal
ground to declare him in default for such failure to plead.
Section 7. Filing of amended pleadings.
After all, under Section 7, Rule 11 of the Amended Rules, a When any pleading is amended, a new copy of the entire
supplemental complaint may be answered within 20 pleading, incorporating the amendments, which shall be
calendar days from notice of the order admitting the same, indicated by appropriate marks, shall be filed.
unless a different period is fixed by the court. The answer to
the complaint shall then serve as the answer to the  Amendments to a pleading should be indicated in the
supplemental complaint if no new supplemental answer amended pleading, as by underscoring, enclosing them
is filed. in quotation marks, putting them in capital letters, etc.,
as would make them readily evident.
Example:  In actual practice, amendments are normally indicated
I obtained a loan from Waldi, in the principal amount of 1 in the pleading as by underscoring the changes.
Million, payable in one year and in four (4) equal quarterly
installments, and for which I issued four (4) post-dated
checks. When the first two (2) post-dated checks matured,
Section 8. Effect of amended pleadings.
Waldi presented the same for payment but the same were
An amended pleading supersedes the pleading that it
dishonored for insufficiency of funds.
amends. However, admissions in superseded
pleadings may be offered in evidence against the
Waldi then filed a case for collection of unpaid loan based on
pleader, and claims or defenses alleged therein not
the first two (2) post-dated checks which bounced, albeit, in
incorporated in the amended pleading shall be
his complaint, he likewise mentioned about, and even
deemed waived.
attached copies of, the other two post-dated checks which
have yet to mature but he did not, as he could not, make a
 The amended provision changes “received” to “offered”
demand for the payment thereof. After having been served
in evidence. This means that the admissions in the
with summons, I filed my answer, whereby I denied having
superseded pleading may be offered, but not
obtained any such loan from Waldi. In my answer, I even
necessarily received in evidence.
denied under oath the specimen signatures appearing in the
four (4) post-dated checks.
Atty. G:
An amended pleading supersedes the pleading it amends.
During the pendency of the case, the other two post-dated
Be that as it may, the original the pleading is not physically
checks fell due and were likewise dishonored by non-
expunged from the records of the case. Reference can
payment, such that Waldi filed a supplemental complaint to
thereby be made thereto, in that any statement contained
cover the other two post-dated checks.
therein may be considered as an extrajudicial admission.
But, in order that the court may take it into consideration as
Q: Do I need to answer the supplemental complaint?
such, it should, however, be formally offered in evidence.
A: No. The answer to the complaint shall then serve as the
answer to the supplemental complaint if no new
Verily, if in the original answer, for instance, the defendant
supplemental answer is filed. And I cannot be declared in
admitted the obligation but interposed the defense of
default if I do not file an answer to the supplemental
payment and, that later on, the defendant amended his
complaint.
answer and totally denied having contracted a debt from the
plaintiff, the admission contained in the original answer may
Q: Suppose, in my answer, I actually admitted having
be received in evidence against the defendant. Such original
obtained a loan from Waldi and having issued the
answer, however, should be introduced formally in evidence
checks, but I interposed the defense that first two (2)
by the plaintiff, as the court will not motu proprio take judicial
checks that bounced (subject of the original complaint)
notice of that. If it is not offered in evidence, the admission
had already been redeemed with cash, at face value. If
contained therein will not be considered.
Waldi subsequently filed, and was allowed by the court,
to file a supplemental complaint, with respect to the
So, the rule is that the amended pleading supersedes the
other two (2) other checks which subsequently
original pleading. However, the filing of the amended
bounced, for which the court directed me to file an
pleading does not retroact to the filing of the original
answer thereto, would my answer to the original
pleading, hence, the statute of limitations runs until the filing
complaint stand as my answer to the supplemental
of the amendment (Ruymann, et al. vs. Director of Lands,
complaint in the event that I would not file a
34 Phil. 429). But an amendment which merely supplements
supplemental answer?
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 which expired after

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the service of the original complaint. It is the actual filing in included in the action (Seno vs. Mangubat, et al., L-44339,
court (of the original pleading) that controls and not the date December 2, 1987).
of the formal admission of the amended pleading (Verzosa
vs. Court of Appeals, G.R. No. 119511-13, November 24, Be it noted, however, that while an amended pleading
1998). However, the immediately preceding rule would not supersedes the pleading it amends, it does not ipso facto
apply to the party who was impleaded for the first time in the follow that where what is amended is the complaint, new
amended complaint which was filed after the period of summons would then be served on the defendant. Such is
prescription had already lapsed, hence the amended must not required with respect to the defendant who has already
be dismissed as to such party who was thus belatedly appeared before the trial court by virtue of a summons in the
included in the action (Seno vs. Mangubat, et al., L-44339, original complaint, as by filing an answer to the original
December 2, 1987). complaint. In that situation, the amended complaint would
just have to be served upon the defendant without need of
Examples: another summons.
I obtained a loan from Waldi, in the principal amount of 1
Million, for which I issued two (2) post-dated checks which Conversely, where the defendant has not yet been served
would fall, due, as the same matured, on a similar date but with summons under the original complaint and such
to be drawn against two different drawee banks – PNB and pleading is later on amended, new summons should thus be
BPI. I did not pay my obligation, prompting Waldi to file a served upon the defendant. If the trial court has not yet
case for collection of sum of money. Waldi filed the acquired jurisdiction over the defendant, a new summons for
complaint on the last day of the prescription of the action. In the amended complaint is required (Vlason Enterprises
the complaint that he filed, Waldi merely demanded payment Corp. vs. Court of Appeals, 310 SCRA 26). This is the rule
for the PNB check, as he forgot about the BPI check. After to be followed also with respect to newly impleaded
the filing of the complaint, Waldi realized, to his dismay, that defendant or one who is impleaded only under the amended
he omitted the BPI check, such that he hurriedly amended complaint. Summons must also be served on the newly
the complaint to include the BPI check in the action and impleaded defendant, so that the court can acquire
demand payment therefor, and to likewise include an jurisdiction over his person because, logically, the newly
allegation that he actually made demands upon me for the impleaded defendant cannot be deemed to have already
payment of the two checks, and he filed the amended appeared by virtue of the summons under the original
complaint even before I could file my answer to the original complaint.
complaint.

Q: Has the action prescribed insofar as the BPI check is RULE 11

concerned?
WHEN TO FILE PLEADINGS
A: Yes. The action has prescribed insofar as the BPI check
is concerned. The filing of the amended pleading does not
retroact to the filing of the original pleading, hence, the Section 1. Answer to the complaint.
statute of limitations runs until the filing of the amendment The defendant shall file his or her answer to the complaint
(Ruymann, et al. vs. Director of Lands, 34 Phil. 429). within thirty (30) calendar days after service of summons,
unless a different period is fixed by the court.
Q: Has the action also prescribed insofar as the PNB
check is concerned? Atty. G:
A: No. The action has not prescribed insofar as the PNB Under the 1997 Rule of Civil Procedure, the defendant is but
check is concerned. An amendment which merely given a period of 15 days from service of summons within
supplements and amplifies facts originally alleged in the which to file his answer to the complaint. But under the
complaint relates back to the date of the commencement of Amended Rules, the general rule is that defendant shall file
the action and is not barred by the statute of limitations his answer to the complaint within 30 calendar days after
which expired after the service of the original complaint. It is service of the summons, unless a different period is fixed by
the actual filing in court (of the original pleading) that controls court.
and not the date of the formal admission of the amended
pleading (Verzosa vs. Court of Appeals, G.R. No. 119511- It is only proper that defendant is now given a longer period
13, November 24, 1998) under the Amended Rules within which to plead his answer
to the complaint in view of the requirements under Section 6,
Q: Suppose in the amended complaint, Waldi impleaded Rule 7 that the judicial affidavits of the witnesses shall
Randi as an additional defendant, inasmuch as Randi already be stated, prepared, and attached to the appropriate
likewise signed the two bum checks as a co- pleading, like an answer.
signatory/joint signatory therein. Has the action
prescribed as to him? In computing the period within which the defendant shall
file his answer, among others, we should be guided by
A: Yes, both with respect to the PNB and the BPI Checks. Section 1, Rule 22 of the Amended Rules, which provides:
The immediately preceding rule as enunciated in Verzosa
case would not apply to the party who was impleaded for the Section 1. How to compute time.
first time in the amended complaint which was filed after the In computing any period of time prescribed or
period of prescription had already lapsed, hence the action allowed by these Rules, or by order of the court, or
must be dismissed as to such party who was thus belatedly by any applicable statute, the day of the act or

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event from which the designated period of time defending party to seek clarifications on some vague
begins to run is to be excluded and the date of allegations in the complaint, among others, to enable him to
performance included. If the last day of the prepare a responsive pleading thereto. The effect of filing a
period, as thus computed, falls on a Saturday, a bill of particulars is governed by Section 2, Rule 12 of the
Sunday, or a legal holiday in the place where the Amended Rules, thus:
court sits, the time shall not run until the next
working day. Section 5. Stay of period to file responsive
pleading.
Application After service of the bill of particulars or of a more
So, applying Section 1, Rule 22 of the Amended Rules, if the definite pleading, or after notice of denial of his or
defendant was, for instance, served with summons on March her motion, the moving party may file his or her
1, 2020 (assuming that it was a working day), then responsive pleading within the period to which he
defendant had until March 31, 2020 within which to file his or she was entitled at the time of filing his or her
answer to the complaint (March 1 + 30 days). So, in motion, which shall not be less than five (5)
computing the 30-day period to file an answer, you exclude calendar days in any event.
the day on which summons was served on the defendant,
but you have to include the last day within which to file the Example:
required pleading. In an action, the defendant was, for instance, served with
summons on March 1, 2020 (assuming that it was a working
If, however, the last day to file the pleading–March 31, day). So, the defendant had until March 31, 2020 within
2020–fell on a Saturday, a Sunday, or was declared a legal which to file his answer to the complaint. Instead of filing an
holiday, the defendant could then file his answer on the next answer, the defendant, on March 19, 2020, filed a motion for
business day–that is, April 1, 2020. This rule holds true even bill of particulars, seeking clarification on the perceived
the Bureau of Posts and its branches are open on a holiday vague allegation on the pleading. Acting on that motion for
which happens to be the last day for filing a pleading bill of particulars, the court, however, denied the same per its
(Galang vs. WCC, et al., L-33928, March 29, 1972). Order dated March 30, 2020, a copy of which was served
upon and received by the defendant on March 31, 2020.
EXCEPTIONS:
Be it noted, however, that the 30 calendar days within which Where defendant’s bill of particulars is denied, then he
the defendant shall file his answer to the complaint is subject should file his answer to the complaint within the remaining
to an exception – and that is when a different period is fixed days of the original 30 calendar days for filing an answer.
by the court and the rules. Clearly, his period for filing an answer is clearly extended or
stretched, as his filing of a bill of particulars effectively
Verily, a longer period is given to the defendant within which interrupted the period for filing an answer.
to file his, her, or its answer, under the following
circumstances, among others: Take note, furthermore, that in counting the remaining
period within which defendant should file his answer
i. Section 2, Rule 11 – where the defendant is a following the denial of his bill of particulars, we should be
foreign private juridical entity (60 calendar days guided by the provision under Section 2, Rule 22 of the
from service of summons); Amended Rules, thus:
ii. Section 16, Rule 14 – where the identity or
whereabout of the defendant is unknown (60 Section 2. Effect of Interruption.
calendar days from summons by publication); and Should an act be done which effectively interrupts
iii. Section 17, Rule 14 – where there is the running of the period, the allowable period
extraterritorial service of summons (60 calendar after such interruption shall start to run on the day
days from notice). after notice of the cessation of the cause thereof.

The defendant may also have a longer period within which to The day of the act that caused the interruption
file his answer if he files a motion for extension of time to shall be excluded in the computation of the period.
file an answer and said motion is granted by the court,
pursuant to Section 11, Rule 11 of the Amended Rules, So, applying Section 2, Rule 22 of the Amended Rules, in
which provides, in part: determining the remaining period within which defendant
should file his answer following the denial of his bill of
Section 11. Extension of time to file an answer. particulars, the day on which the defendant filed his bill
A defendant may, for meritorious reasons, be of particulars SHALL BE EXCLUDED in the counting of
granted an additional period of not more than thirty the period (meaning--the period that is deemed consumed
(30) calendar days to file an answer. A defendant or wasted), as well as the day on which he was served
is only allowed to file one (1) motion for extension with the order denying his bill of particulars.
of time to file an answer.
Hence, when the defendant filed the bill of particulars on
The defendant may also have a longer period within which to March 19, 2020, he still has 13 remaining calendar days
file his answer if he files a motion for bill of particulars before within which to file his answer. And this remaining 13
the expiration of the period for filing an answer. A bill of calendar days shall be counted starting April 1, 2020 (the
particular is sort of a motion which would enable the day after he received the order of denial on March 31, 2020).

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In fine, defendant has until April 13, 2020 within which to file etc.)-party complaint, and amended complaint-in-
his answer to the complaint (see Labitad vs. Court of intervention.
Appeals, G.R. No. 53877, July 17, 1995).

But the intriguing question is this: What is the effect of Relate this to our discussion on Sections 2 and 3, Rule 10 of
filing a motion to dismiss on the reglementary period for the Amended Rules, as when an amendment is considered
filing an answer? CLARIFY WITH JUDGE!!!! a matter of right and when it is not.
OTHERWISE GO BACK TO ATTY.G’S DISCUSSION.
Where amendment is a matter of right (one which does not
require leave of court), the thirty (30) calendar days within
Section 2. Answer of a defendant foreign private which to file an answer shall be counted from service of the
juridical entity. amended complaint.
Where the defendant is a foreign private juridical entity and
service of summons is made on the government official Where amendment is not a matter of right (one which
designated by law to receive the same, the answer shall be requires leave of court), the fifteen (15) calendar days within
filed within sixty (60) calendar days after receipt of which to file an (amended) answer shall be reckoned from
summons by such entity. notice of the order admitting the amended complaint. This is,
of course, on the assumption that the amended complaint is
attached to the motion for leave to file/admit amended
The foregoing rule should be read in conjunction with complaint, as is the usual practice, and as required under
Section 14, Rule 14 of the Amended Rules, which provides, Section 9, Rule 15 of the Amended Rules.
in part:
Take note that where no answer is filed to the amended
Section 14. Service upon foreign private complaint, the answer to the original complaint may then
juridical entities. serve as the answer to the amended complaint. However,
When the defendant is a foreign private juridical new material allegations in the amended complaint, if any,
entity which has transacted or is doing business in which are not specifically denied are deemed admitted.
the Philippines, as defined by law, service may
be made on its resident agent designated in
accordance with law for that purpose, or, if there Section 4. Answer to counterclaim or cross-claim.
be no such agent, on the government official A counterclaim or cross-claim must be answered within
designated by law to that effect, or on any of its twenty (20) calendar days from service.
officers, agents, directors or trustees within
the Philippines.
Relate this to our discussion on Sections 6 and 7, Rule 6 of
Conversely, if summons for the defendant foreign private the Amended Rules.
juridical entity is served on its resident agent in the
Philippines designated in accordance with law for that The counterclaim which needs to be answered to, and within
purpose, or on any of its officers, agents, directors or the twenty (20) calendar days given, under Section 4, Rule
trustees within the Philippines, then the time to answer shall 11 of the Amended Rules is a PERMISSIVE
be thirty (30) calendar days from service of summons, in COUNTERCLAIM. After all, a plaintiff who fails or chooses
accordance with Section 1, Rule 11 of the Amended Rules. not to answer a COMPULSORY COUNTERCLAIM–where
If, however, service of summons is served on the the purported answer thereto would just be a repetition of the
government official designated by law to receive the same, it allegations in the complaint or where the issues raised in the
shall be the duty of that government official to send copy of counterclaim are inseparable from those raised in the
the summons to the home office of the said defendant, and complaint–cannot be declared in default (Gojo vs. Goyala,
the time to answer shall be sixty (60) calendar days after 35 SCRA 557; Navarro vs. Bello, 102 Phil. 1019;
receipt thereof by the home office, pursuant to Section 2, Sarmiento vs. Juan, 120 SCRA 403).
Rule 11 of the Amended Rules.
And, as discussed before in the topic pertaining to the
effects of default, even if the plaintiff is declared in default for
Section 3. Answer to amended complaint. his failure to answer a PERMISSIVE COUNTECLAIM within
When the plaintiff files an amended complaint as a matter of the reglementary period under Section 4, Rule 11 of the
right, the defendant shall answer the same within thirty (30) Amended Rules, he is not necessarily divested of his
calendar days after being served with a copy thereof. standing in court or his right to present his evidence in chief
in support of his complaint nor will it per se entitle the
Where its filing is not a matter of right, the defendant shall defendant to immediate judgment on the counterclaim
answer the amended complaint within fifteen (15) calendar (Navarro vs. Bello, 102 Phil. 1019).
days from notice of the order admitting the same. An answer
earlier filed may serve as the answer to the amended
complaint if no new answer is filed.

This Rule shall apply to the answer to an amended

counterclaim, amended crossclaim, amended third (fourth,

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Section 5. Answer to third (fourth, etc.)-party complaint. attached to the reply, pursuant to Section 8, Rule 8 of the
The time to answer a third (fourth, etc.)-party complaint shall Amended Rules.
be governed by the same rule as the answer to the
complaint. Atty. G’s comment: But, perhaps by inadvertence, the
Amended Rules which now provides and allows the filing of
a rejoinder does not have an express provision on the
Relate this to our discussion on Section 11, Rule 6 of the reglementary period for filing a rejoinder. I may be wrong
Amended Rules. on this, but it is my considered view that, inasmuch as
rejoinder is of similar footing with a reply, then rejoinder may
So, the period to file an answer to third (fourth, etc.)-party thus be filed within fifteen (15) calendar days from
complaint shall be governed by Sections 1, 2, or 3, all of defendant’s receipt of the reply to which an actionable
Rule 11 of the Amended Rules, as the case may be, and as document is attached.
may be warranted by the circumstances. Hence, the third
(fourth, etc.)- party defendant also has 30, 60, or 15
calendar days (anent amended complaint filed upon leave Section 7. Answer to supplemental complaint.
of court) from service/receipt of summons or amended A supplemental complaint may be answered within twenty
complaint, as the case may be, to file his answer just like the (20) calendar days from notice of the order admitting the
original defendant. same, unless a different period is fixed by the court. The
answer to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer is
Section 6. Reply. filed.
A reply, if allowed under Section 10, Rule 6 hereof, may be
filed within fifteen (15) calendar days from service of the
pleading responded to. Please see our discussion under Section 6, Rule 10 of the
Amended Rules, on the effect of failure to file an answer to a
supplemental complaint.
Relate this to our discussion on Section 10, Rule 6 of the
Amended Rules which provides: Remember though that the answer to supplemental
complaint, if required or necessary, shall be filed within 20
Section 10. Reply. calendar days from notice of the order admitting the
All new matters alleged in the answer are deemed supplemental complaint, unless a different period is fixed by
controverted. If the plaintiff wishes to interpose the court. There should be a court order for the reason that
any claims arising out of the new matters so the filing and admission of a supplement complaint needs
alleged, such claims shall be set forth in an leave of court.
amended or supplemental complaint. However,
the plaintiff may file a reply only if the defending
party attaches an actionable document to his or Section 8. Existing counterclaim or cross-claim.
her answer. A compulsory counterclaim or a cross-claim that a defending
party has at the time he or she files his or her answer shall
A reply is a pleading, the office or function of be contained therein.
which is to deny, or allege facts in denial or
avoidance of new matters alleged in, or relating to,
said actionable document. Relate this to our discussions on Section 7, Rule 6 and
Section 2, Rule 9, all of the Amended Rules.
In the event of an actionable document attached to
the reply, the defendant may file a rejoinder if the Here, it is required that a compulsory counterclaim or cross-
same is based solely on an actionable document claim should be pleaded in the answer, and not in any other
pleading.
Take note that, under Section 10, Rule 6 of the Amended
Rules, the plaintiff may file reply ONLY if the defending party Sight should not be lost of the fact that Section 8, Rule 11
attaches an actionable document to his or her answer, and expressly mentions about COMPULSORY
the plaintiff has fifteen (15) calendar days from receipt of COUNTERCLAIM or cross-claim – that which should be set
such answer to file his desired reply. Failing in that, the up in the answer. The same is not, however, required of a
plaintiff, therefore, is deemed to have admitted the PERMISSIVE COUNTERCLAIM. After all, a PERMISSIVE
genuineness and due execution of the actionable document COUNTERCLAIM need not be set up in the answer, as it
attached to the answer, pursuant to Section 8, Rule 8 of the can be prosecuted separately. But as for compulsory
Amended Rules. counterclaim which has already matured, it has to be set up
in the answer, otherwise it is barred, as provided under the
It is to be noted, however, that under Section 10, Rule 6 of last sentence of Section 7, Rule 6 and under Section 2, Rule
the Amended Rules, the defendant may file a rejoinder if an 9 of the Amended Rules.
actionable document is attached to plaintiff’s reply. Failing in
that, the defendant, is also deemed to have admitted the Take note again that a plaintiff who fails or chooses not to
genuineness and due execution of the actionable document answer a COMPULSORY COUNTERCLAIM–where the
purported answer thereto would just be a repetition of the

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allegations in the complaint or where the issues raised in the permitted to amend his answer, but such requires leave of
counterclaim are inseparable from those raised in the court, especially if the opposing party had already filed a
complaint – cannot be declared in default (Gojo vs. Goyala, responsive pleading to the answer, like a reply.
35 SCRA 557; Navarro vs. Bello, 102 Phil. 1019;
Sarmiento vs. Juan, 120 SCRA 403).
Section 11. Extension of time to file an answer.
A defendant may, for meritorious reasons, be granted an
Section 9. Counterclaim or cross-claim arising after additional period of not more than thirty (30) calendar days
answer. to file an answer. A defendant is only allowed to file one (1)
A counterclaim or a cross-claim which either matured or was motion for extension of time to file an answer.
acquired by a party after serving his or her pleading may,
with the permission of the court, be presented as a A motion for extension to file any pleading, other than an
counterclaim or a cross-claim by supplemental pleading answer, is prohibited and considered a mere scrap of paper.
before judgment. The court, however, may allow any other pleading to be filed
after the time fixed by these Rules.

Relate this to our discussions on Section 7, Rule 6; Section

2, Rule 9; and Section 8, Rule 11 of the Amended Rules. Relate this to our discussions on Section 1, Rule 11 of the
Amended Rules.
Section 9, Rule 11 of the Amended Rules, above, applies to
a situation where the counterclaim or cross-claim accrues Unlike in the 1997 Rules of Civil Procedure, the Amended
only after the filing of the answer, such that the same could Rules makes it clear that a motion for extension to file
not, of course, be pleaded therein. So, to remedy the answer is allowed to be filed only ONCE, but, if there is any
situation, the pleader may present such belated consolation, under the Amended Rules, such extension to
counterclaim via a SUPPLEMENTAL PLEADING, but this file answer may be good for 30 calendar days.
naturally requires permission or leave of court, pursuant to
Section 6, Rule 10 of the Amended Rules. Take note, however, that a motion for extension of time to
file answer should be filed before (and expectedly near) the
Example: expiration of the original period to file an answer because if it
I borrowed money from Waldi, evidenced by a promissory is filed after that, then there is no longer any period to
which contained a stipulation on interest at the rate of 10% extend.
per month. The obligation was to fall due and payable after 1
year. After 6 months, however, I, the borrower, filed a case Be that as it may, recall what has been discussed before that
against Waldi, seeking for the nullification of the stipulated even if the original or the extended period to answer has
interest (and only the interest) for being supposedly already expired, the defendant can still file his answer
usurious, unjust and unconscionable. In his answer, Waldi belatedly, and he cannot be declared in default, especially
merely traversed the issue about the legality and propriety of where no motion is yet filed to declare him in default and/or
the interest. And, in his answer, he could not reasonably set where no order is yet issued declaring him in default, and
up the demand for the payment of the loan by way of there is no showing that he intended to delay the case
counterclaim for the simple reason it has not yet matured by (Cathay Pacific Airways, Ltd. vs. Romillo, G.R. No.
then. If the during the pendency of the case, my obligation 64276, March 4, 1986; San Pedro Cineplex Properties,
matures, Waldi can then ask for leave of court to file a Inc. vs. Heirs of Manuel Humada Enano, 635 SCRA 421).
supplemental answer thereby demanding, by way of Out of courtesy to the court, however, you file an Ex-parte
counterclaim, the payment of the principal loan. And that is Motion to Admit the Answer and attach thereto the answer
allowed under Section 9, Rule 11 of the Amended Rules. that is belatedly filed.

While one motion for extension may be filed with respect to

Section 10. Omitted counterclaim or cross-claim. filing of an answer, the rule prohibits the filing of a motion for
When a pleader fails to set up a counterclaim or a cross- extension for the filing of other pleadings, like reply or
claim through oversight, inadvertence, or excusable neglect, rejoinder, as the case may be. However, and as provided
or when justice requires, he or she may, by leave of court, under the rules, the court may allow any other pleading to be
set up the counterclaim or cross-claim by amendment before filed after the time fixed by these Rules.
judgment.
1. Answer 30 calendar days
2. Answer of a Private
Relate this to our discussions on Section 7, Rule 6; Section Foreign Corporation
2, Rule 9; and Section 8, Rule 11, all of the Amended Rules.
a. With authorized
Unlike Section 9, Rule 11 of the Amended Rules, the agencts, officers, 30 calendar days
counterclaim or cross-claim under this rule is one which had directors, or
already accrued at the time of the filing of the answer, only trustees in the
that, by oversight, or inadvertence, or excusable neglect, Philippines;
such counterclaim or cross-claim has been omitted in the b. Without authorizes
answer. To remedy the situation, the defending party is agents, officer, 60 calendar days

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directors, or Section 1. When applied for; purpose.

trustees in the Before responding to a pleading, a party may move for a
Philippines. definite statement or for a bill of particulars of any matter,
3. Answer to Amended which is not averred with sufficient definiteness or
Complaint particularity, to enable him or her properly to prepare his or
a. Where her responsive pleading. If the pleading is a reply, the motion
amendment is a 30 calendar days must be filed within ten (10) calendar days from service
matter of right; thereof. Such motion shall point out the defects complained
b. Where of, the paragraphs wherein they are contained, and the
amendment is not 15 calendar days details desired.
matter of right.
4. Answer to When should the motion for the Bill of Particulars be
Counterclaim or Cross- 20 calendar days filed?
claim It should be filed before responding the pleadings. The filing
5. Answer to 3rd(4th)-Party 30, 60, or 15 calendar days, is for him to intelligently respond to the pleading. A party
Complaint as the case may be. may move for a definite statement or a bill of particular of
6. Reply 15 calendar days any matter which is not averred with sufficient particularity to
7. Answer to enable him to prepare his responsive pleading.
Supplemental 20 calendar days
Complaint If the pleading is a reply, the motion should be filed within
8. Rejoinder Not specifically provided in the 10 days from service thereof. Such motion as it requires
the rules. But is opined that a more particular allegation, it should point out the defects
it has to be filed with 15 complaint of, the paragraph to which they are contained and
calendar days the details desired.

Bill of particulars is a complementary procedural document

RULE 12 consisting of an amplification or more particularized outline
of a pleading and being in the nature of a more specific
BILL OF PARTICULARS
allegation of the facts recited in the pleading (Virata vs.
Sandiganbayan, G.R. No. 114331, May 27, 1997).
Bill – means a list.
PURPOSE & FUNCTION
Bill of Particular  It is the function or purpose of a bill of particulars to
The purpose is to make particular or definite the ultimate define, particularize, and limit or circumscribe the
facts in the pleading. This presupposes that there is issues in the case, to expedite the trial, and assist the
ambiguous or vague allegation in the pleading/complaint to court.
be responded to. The solution is to file a Motion for Bill of  A general function or purpose of a bill of particulars is to
Particular. prevent injustice or do justice in the case when that
cannot be accomplished without the aid of such a bill.
A motion is a request addressed to the court. You are  It is not the office of a bill of particulars to supply
asking the court directing that party to make the allegations material allegations necessary to the validity of the
more specific/particular so that the movant can answer or pleading, or to change a cause of action or defense
reply properly. stated in the pleading, or to state a cause of action or
defense other than the one stated.
Note: only available to any DEFENDING PARTY, e.g. third  The complaint for which a bill of a more definite
party defendant statement is sought need only inform the defendant of
the essential (or ultimate) facts to enable him, the
Example: defendant, to prepare an intelligent answer.
A complaint for annulment of marriage, the plaintiff alleges  Its primary objective is to apprise the adverse party of
that her marriage with the defendant is voidable on the what the plaintiff wants–to preclude the latter from
ground of fraud. There is no allegation as to the springing a surprise attack later (Tan vs.
circumstances what makes it fraud. There is no statement as Sandiganbayan, 180 SCRA 34).
to the particular act of the defendant which makes it void.
The statement that the defendant committed act constituting Mere ambiguity or indefiniteness is not a ground for a motion
fraud is vague, so in order for the defendant to make an to dismiss so long as complaint sufficiently shows a cause of
intelligent answer, the complainant needs to make her action (Co Tiamco vs. Diaz, 75 Phil. 672). The deficiency
allegations more definite or particular. That is the function of could be cured by means of a motion for bill of particulars
the bill of particular. [Motion for Bill of Particular] The (City of Cebu vs. Court of Appeals, 258 SCRA 175).
motion should be filed to make more definite ultimate facts
and not evidentiary facts. Example:
In an action for sum of money, the plaintiff made averments
to the end “that he and the defendant entered into a
transaction, for which the defendant obligated to deliver
money unto and plaintiff’s favor; that defendant’s obligation

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already fell due; that plaintiff sent a demand letter to the motion for bill of particulars if, on the face of the complaint, it
defendant, demanding payment of what was due to the does not contain any ambiguity or that the allegations therein
plaintiff; but the defendant failed and still refuses to pay.” are clear and specific, or when it would readily appear that
the motion for bill of particulars has been filed if only to delay
The said allegations, though vague, somehow stated all the the proceedings or to vie for time to file an answer.
elements of a cause of action. Verily, defendant’s remedy is
not to file a motion to dismiss but to file a motion for bill of BAR Q: Defendant D upon receiving the copy of the
particulars, thereby seeking to compel the plaintiff to summons toehtehr with the complaint filed a motion for
particularize, among others, what specific “transaction” did Bill of Particulars in the morning. In the afternoon the
the plaintiff and the defendant allegedly entered into and defendant received a copy of the motion denying the
how much was the defendant obligated to deliver to the motion for BP. He filed a petition for certiorari arguing
plaintiff. that the court committed grave abuse of discretion in
not setting his motion for hearing. Is the petition for
Example: certiorari correct?
In an action for rescission of a contract of sale of gold bars, A: No, because under Sec.2 the court has the discretion ot
for instance, the plaintiff just alleged in the complaint that the immediately deny the motion.
defendant lured and defrauded him into buying gold bars
which turned out to be fake– and that’s all. Clearly, said
allegation fails to comply with the requirement under Section Section 3. Compliance with order.
5, Rule 8 of the Amended Rules that “(i)n all averments of If the motion is granted, either in whole or in part, the
fraud or mistake, the circumstances constituting fraud or compliance therewith must be effected within ten (10)
mistake must be stated with particularity.” calendar days from notice of the order, unless a different
period is fixed by the court. The bill of particulars or a more
Where that happens, the remedy of the defendant is not to definite statement ordered by the court may be filed either in
file a motion to dismiss but to file a motion for bill of a separate or in an amended pleading, serving a copy
particulars, seeking to compel the plaintiff to narrate the facts thereof on the adverse party.
with particularity on how the defendant supposedly
committed the fraud. Note: The filing of the motion of bill of particular is not only
available to the defendant. The plaintiff may likewise file the
 Let it be stressed, however, that it is not the motion if he finds vague allegations in the answer.
function or province of the bill of particulars to
obtain a disclosure of evidentiary facts. Where the court grants the motion for bill of particulars, it will
direct the pleader to clarify or particularize the ambiguous or
Example: vague statements in his pleading, and this pleader must do
In an action for collection of sum of money, for instance, the within ten (10) calendar days from notice of such order,
plaintiff stated in his complaint, among others, that he made unless a different period is fixed by the court. And the
countless and repeated verbal demands upon the defendant, pleader so directed by the court, may clarify such ambiguity
demanding payment of the loan. either by amending his pleading OR by filing a separate
pleading, thereby clarifying any such ambiguous
In that action, the defendant cannot file a motion for bill of statement(s).
particulars to compel the plaintiff to specify when or how
such verbal demands were made. These are evidentiary Where the bill of particulars is done by amending the
facts. If defendant wants, he may resort to the various pleading, the amended pleading shall then supersede the
modes of discovery, as provided for under Rules 23, 25, 26, original pleading.
or 27 of the Amended Rules, but definitely not through a
motion for bill of particulars. Where the clarification/particularization of the ambiguous
statements is done by filing a separate pleading, the
original pleading is not thereby superseded, in that such
Section 2. Action by the court. separate pleading just becomes part of the pleading for
Upon the filing of the motion, the clerk of court must which it is intended – that is, the pleading containing such
immediately bring it to the attention of the court, which may ambiguous statements, and this is in line with Section 6,
either deny or grant it outright, or allow the parties the Rule 12 of the Amended Rules which provides:
opportunity to be heard.
Section 6. Bill a part of pleading.
As worded in the afore-quoted provision, the granting of a A bill of particulars becomes part of the pleading
motion for bill of particulars lies within the sound discretion for which it is intended.
of the court, and its ruling will not be reversed unless there
was palpable abuse of discretion or it was a clearly
erroneous order (Santos vs. Liwag, L-24238, November Section 4. Effect of non-compliance.
28, 1980). If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out of
In fact, the court is authorized to deny or grant a motion for the pleading or the portions thereof to which the order was
bill of particulars outright. It is discretionary upon the court to directed, or make such other order as it deems just.
conduct a hearing thereon. The court may thus deny the

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Effect if the party directed to make the allegation in his Example:

pleading more particular failed to comply with the order You filed a motion for bill of particulars asking the plaintiff to
of the court: make more definite the allegations in the complaint on the
a) Plaintiff – failure would cause the dismissal of the 14th day because when you received the complaint you had
action. difficulty understanding the same and after 2 weeks still, you
b) Defendant – failure would cause the striking out of don’t understand the complaint. The court denied your
the record of the answer failed or the portion motion because according to it, the allegation is not vague
thereof. and is definite to enable the defendant to file an intelligent
responsive pleading. So, how many days are left for you to
Where the court grants the motion for bill of particulars that file the responsive pleading? The answer is 5 days. There is
is directed at the complaint, but the plaintiff unjustifiably an automatic extension.
refuses or fails to comply with court’s directive, such non-
compliance may be a ground for the dismissal of the Note: Do not be confused with the Neypes ruling because
complaint, pursuant to Section 3, Rule 17 of the Amended the same is applicable only when there already is a decision.
Rules of Court. Such dismissal, unless made without There is no decision yet in this case.
prejudice, would be a bar to a subsequent action on the
same cause (Bautista vs. Teodoro, 101 Phil. 701). Section Atty. G
3, Rule 17 of the Amended Rules provides: Please relate this to our discussion on Section 1, Rule 11 of
the Amended Rules.
Section 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to Example:
appear on the date of the presentation of his or In an action, the defendant was, for instance, served with
her evidence in chief on the complaint, or to summons on March 1, 2020 (assuming that it was a working
prosecute his or her action for an unreasonable day). So, the defendant had until March 31, 2020 within
length of time, or to comply with these Rules or which to file his answer to the complaint. Instead of filing an
any order of the court, the complaint may be answer, the defendant, on March 19, 2020, filed a motion for
dismissed upon motion of the defendant or bill of particulars, seeking clarification on the perceived
upon the court's own motion, without prejudice vague allegation on the pleading. Acting on that motion for
to the right of the defendant to prosecute his or her bill of particulars, the court, however, denied the same per its
counterclaim in the same or in a separate action. Order dated March 30, 2020, a copy of which was served
This dismissal shall have the effect of an upon and received by the defendant on March 31, 2020.
adjudication upon the merits, unless otherwise
declared by the court. Where defendant’s bill of particulars is denied, then he
should file his answer to the complaint within the remaining
If what is sought to be clarified is an ambiguous statement in days of the original 30 calendar days for filing an answer.
the answer, the court, cannot, of course, order the dismissal Clearly, his period for filing an answer is clearly extended or
of the case if the defendant will not obey the order for him so stretched, as his filing of a bill of particulars effectively
to clarify such an ambiguous statement. The plaintiff should interrupted the period for filing an answer.
not be penalized for defendant’s omission, or that the latter
could not profit from his omission. Where that happens, the So, applying Section 2, Rule 22 of the Amended Rules, as
court may just direct that such ambiguous statement in the previously discussed, the defendant still has 13 remaining
answer be stricken out, and the court may even cite the calendar days within which to file his answer. And this
disobedient or recalcitrant defendant in contempt of the court remaining 13 calendar days shall be counted starting April 1,
for disobeying its lawful order. 2020 (the day after he received the order of denial on March
31, 2020). In fine, defendant has until April 13, 2020 within
which to file his answer to the complaint (see Labitad vs.
Section 5. Stay of period to file responsive pleading. Court of Appeals, G.R. No. 53877, July 17, 1995).
After service of the bill of particulars or of a more definite
But, where, in the given example, the defendant filed the
pleading, or after notice of denial of his or her motion, the
motion for bill of particulars on the last day for filing his
moving party may file his or her responsive pleading within
answer, and the motion for bill of particulars is subsequently
the period to which he or she was entitled at the time of filing
denied, the defendant will have five (5) calendar days from
his or her motion, which shall not be less than five (5)
receipt of the order denying the motion for bill of particulars
calendar days in any event.
within which to file his answer to the complaint.
Effect of filing of motion to the period to file
However, where the pleading containing an ambiguous
answer/reply
statement happens to be a reply, the motion for bill of
The filing of the motion for bill of particular would be
particulars directed at such reply must be filed within ten (10)
interrupted and the party filing would have the remaining
calendar days from defendant-movant’s receipt thereof.
period to submit the responsive pleading but the remaining
Section 1, Rule 12 of the Amended Rules is very clear on
period should not be shorter than 5 days, so meaning if less
this, when it provides:
than 5 days remaining then automatic extension.

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Section 1. When applied for; purpose. Note: When you refer to pleading exclude complaint.
Before responding to a pleading, a party may
move for a definite statement or for a bill of  The service of pleading shall be serve on the
particulars of any matter, which is not averred with counsel not on the party himself, unless the court
sufficient definiteness or particularity, to enable expressly provides that both the counsel and the party
him or her properly to prepare his or her should be served a copy of the motion or pleading.
responsive pleading. If the pleading is a reply, the (adverse party)
motion must be filed within ten (10) calendar days
from service thereof. Such motion shall point out Q: What will happen instead of serving the pleading to
the defects complained of, the paragraphs wherein the counsel but you served it to the party himself?
they are contained, and the details desired. (1a) A: Service is invalid.

RULE OF THE THUMB, Before filing serve first.

Section 6. Bill a part of pleading.
A bill of particulars becomes part of the pleading for which it  One counsel several party, one copy only.
is intended.  Several counsel to one party, only one counsel (lead
counsel) shall be serve the copy of the motion. If no
 Please see the discussion under Section 3 hereof. lead counsel, then any of the counsel.

The general rule is that if a party has appeared by counsel,

service upon such party shall be made upon his or her
RULE 13
counsel, and not necessarily upon the party, unless service
FILING AND SERVICE OF PLEADINGS, JUDGMENTS upon the party and the party’s counsel is directed by the
AND OTHER PAPERS court. Following the general rule, service to the lawyer is
effective notice to the client, and not the other way around
Any other pleadings filed after the filing of complaint, and (Waterfront Cebu City Casino Hotel, Inc. vs. Ledesma,
service of summons, would follow Rule 13, e.g. answer, G.R. No. 197556, March 25, 2015). Verily, the start of the
motion to dismiss and etc. which will follow the provisions in corresponding reglementary period for the subsequent
Rule 13. procedural steps that may be taken in a case shall start to
run from service made upon the counsel (see Gundayao vs.
Section 1. Coverage. Court of Appeals, 185 SCRA 606).
This Rule shall govern the filing of all pleadings, motions,
and other court submissions, as well as their service, except The purpose of requiring a formal service to the lawyer is to
those for which a different mode of service is prescribed. maintain a uniform procedure, calculated to place in
competent hands the orderly prosecution of a party’s case
Section 2. Filing and Service, defined. (National Investment and Development Corporation vs.
Filing is the act of submitting the pleading or other paper to Court of Appeals, G.R. No. 117408, March 26, 1997). The
the court. reason for the general rule is that the parties, generally, have
no sufficient knowledge about the rigidities of the rules of
Service is the act of providing a party with a copy of the procedure and they may be unaware of the rights, duties,
pleading or any other court submission. If a party has and remedies of the litigants relative to the receipt of
appeared by counsel, service upon such party shall be made pleadings, motions, and judgments of the courts. More
upon his or her counsel, unless service upon the party and importantly, it is best for the courts to deal only with one
the party’s counsel is ordered by the court. Where one person in the interest of orderly procedure (De los Santos
counsel appears for several parties, such counsel shall only vs. Elizalde, 514 SCRA 14).
be entitled to one copy of any paper served by the opposite
side. Take note, however, that it is not enough that the attorney
appeared during the trial, in that he must make a formal
Where several counsels appear for one party, such party entry of appearance. Without such formal appearance,
shall be entitled to only one copy of any pleading or paper to counsel is not entitled to notice. Judicial administration
be served upon the lead counsel if one is designated, or cannot afford to suffer uncertainty because of the uncertainty
upon any one of them if there is no designation of a lead concerning the lawyer upon whom service is to be made
counsel. (Dirige vs. Biramega, 17 SCRA 840).

And where a lawyer makes a formal entry of appearance in a

Take note of the distinction between “filing” and “service” of
case, notice should be made upon the counsel of record at
pleadings, motions, or judgments, etc.
his exact given address (National Investment and
Development Corporation vs. Court of Appeals, supra).
FILING – is the act of submitting the pleading or other paper
Thus, in a case, service at the ground floor of petitioner
to the court.
counsel’s building and not at the address of record of
petitioner’s counsel at the 9th floor of the building is not a
SERVICE – is the act of providing a party (adverse party) of
valid service (PLDT vs. NLRC, 128 SCRA 402). But, in
the pleading or other court submission. Service likewise
another case, where the law firm accepted service at the
includes the act of furnishing a party with the notices, orders,
station or place which is three floors down from the address
resolutions, or judgments by the court.

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originally given by them without objection of any sort, the (d) Transmitting them by electronic mail or other electronic
lawyers cannot subsequently disown such accepted manner means as may be authorized by the Court in places where
of service to relieve them from the effects of their the court is electronically equipped.
negligence, complacency or inattention (Philippine
Commercial and Industrial Bank vs. Ortiz, 150 SCRA In the first case, the clerk of court shall endorse on the
388). pleading the date and hour of filing. In the second and third
cases, the date of the mailing of motions, pleadings, and
Relevantly, to ensure proper service of pleadings and other other court submissions, and payments or deposits, as
court submissions, it is, therefore, imperative that where the shown by the post office stamp on the envelope or the
lawyer changed his address, he should file a formal change registry receipt, shall be considered as the date of their filing,
of address to fairly inform the court and the adverse party payment, or deposit in court. The envelope shall be attached
about such change of address. The fact that counsel used a to the record of the case. In the fourth case, the date of
different address in later pleadings should not be taken as electronic transmission shall be considered as the date of
notice to the court of either the change of address or another filing.
address in addition to that which was already of record
(Philippine Suburban Development Corporation vs. First off, it should be noted that the foregoing provision deals
Court of Appeals, 100 SCRA 109). only with FILING of pleadings, motions, and other court
submissions WITH THE COURT. It does not deal with
After all, it is the duty of counsel to adopt and strictly SERVICE of pleadings, motions, etc.
maintain a system that efficiently takes into account all court
notices sent to him. His failure to do so cannot excuse him For another, take note that while under the 1997 Rules of
from the consequences of his non-receipt of court notices Civil Procedure, the filing of pleading, motions, etc. with the
(Antonio vs. Court of Appeals, et al., G.R. No. 77656, court could be done in just two (2) ways: (1) by personal
Aug. 31, 1987). However, even if there is no formal change filing, or (2) by registered mail, but under the Amended
of address but the court had already taken notice of the Rules, the filing of pleading and other court submissions may
change of address of counsel, notice to the old address is now be done in four (4) different modes or ways, thus:
not anymore proper and binding (Anthony Sy vs.
Intermediate Appellate Court, G.R. No. 66741, June 16, 1. By personal filing in court;
1988). 2. By registered mail;
3. By sending the pleadings, etc. through accredited
For the same reason as above stated, where a party couriers (like LBC, DHL, etc.); or
changes his lawyer, there should be a formal notice of such 4. By transmitting them by electronic mail or other
substitution of counsel. A lawyer’s withdrawal as counsel electronic means as may be authorized by the court.
must be made in a formal petition filed in the case, without
which, notice of judgment rendered in the case served on  Under the 1997 Rules of Civil Procedure and even
the counsel of record is considered valid (Cubar vs. under the Amended Rules, however, the filing of
Mendoza, 120 SCRA 768). But where the court has already pleading and other court submission CANNOT, as a
recognized the substitution of counsel even without a formal rule, be done via ordinary mail.
substitution or withdrawal of the previous counsel, it would  The 3rd and the 4th modes of filing of pleadings and
be error on the part of the court to still insist that the previous other court submissions, as above stated, are
lawyer is still the counsel of record, such that service of the innovations under the Amended Rules.
court judgment upon the previous counsel is not considered
proper (Rinconda Telephone Company vs. Buenaviaje, PERSONAL SERVICE
184 SCRA 701).
Where the filing of the pleading, etc. is done by personal
Note: Lest that it be forgotten, please take note that, under service, the clerk of court (or any authorized court personnel)
the rules, where one counsel appears for several parties, shall endorse (stamp) or indicate on the face of the pleading
such counsel shall only be entitled to one copy of any paper the date and hour of the filing thereof.
served by the opposite side.
Ordinarily, the court has a “stamp” for the pleadings, etc.
Likewise, where several counsels appear for one party, such filed with, and received by, it, and the clerk of court, or the
party shall be entitled to only one copy of any pleading or authorized court personnel will jot down details
paper to be served upon the lead counsel if one is corresponding to the date and time of the court’s receipt of
designated, or upon any one of them if there is no the pleading, etc.. This is to determine whether it was timely
designation of a lead counsel. filed.

Informatively, there are courts which are quite strict, such

Section 3. Manner of FILING. that it may be of help to label the copy or copies of the
The filing of pleadings and other court submissions shall be pleading, etc. as are intended for the court as “original,” even
made by: if, in actuality, the other copies of such pleading are also
(a) Submitting personally the original thereof, plainly regarded as originals, inasmuch as all such copies are
indicated as such, to the court; computer-generated, at or about the same time, and are
(b) Sending them by registered mail; signed by the lawyer.
(c) Sending them by accredited courier; or

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REGISTERED MAIL & ACCREDITED COURIER (c) Appendices and exhibits to motions, or other
documents that are not readily amenable to
Where the filing of the motion, pleading, etc. is done by electronic scanning may, at the option of the party
registered mail or where the same is sent via an accredited filing such, be filed and served conventionally; and
courier, the date of the mailing of the motion, pleading, and (d) Sealed and confidential documents or records.
other court submissions, and payments or deposits, as
shown by the post office stamp on the envelope or the Again, the pleadings, orders, and other documents as, thus,
registry receipt, shall be considered as the date of their enumerated under Section 14, Rule 13 of the Amended
filing, payment, or deposit in court. Rules can only filed or served, as the case may be, either
personally or by registered mail, or that the same cannot be
In other words, the motion, pleading, payment, or deposit is filed or served through electronic means, unless otherwise
considered filed or done on the date of mailing, and not permitted by the court.
necessarily the date on which such motion, pleading,
payment, or deposit, etc. is actually delivered and received
by the court. Section 4. Papers required to be filed and served.
Every judgment, resolution, order, pleading subsequent to
Abandoned: This is very much unlike under the old rule the complaint, written motion, notice, appearance, demand,
and the 1997 Rules of Civil Procedure, whereby if the offer of judgment or similar papers shall be filed with the
pleading is filed through a courier (like LBC or DHL), the court, and served upon the parties affected.
date of the actual receipt by the court of such pleading is
deemed to be date of the filing of the pleading, and not the Note: Before filing serve it first to the adverse party. OW,
date of delivery to the courier or carrier (Benquet Electronic it will be denied by the court or stricken out due to the lack of
Cooperative, Inc. vs. NLRC, et al., G.R. No. 89070, May service to the adverse party.
18, 1992).
Section 4, Rule 13 of the Amended Rules, enumerates the
But pursuant to the rules, as amended, the ruling in the court documents or papers that need to be filed and served.
Benquet case is no longer controlling. Nevertheless,
inasmuch as filing by ordinary mail is still not allowed under It should be noted that Section 4, Rule 13 of the Amended
the Amended Rules, where the party nevertheless opts to Rules mentions, among others, of “pleading subsequent
file his pleading via ordinary mail, such pleading is not to the complaint” that needs to be filed with the court and
considered filed until it is actually delivered and received by served upon the parties. So, perhaps, we may ask this
the court. question: How about the complaint?

ELECTRONIC MAIL Well, as for the complaint, the general rule is that it has to
(Admin Circular No. 32-2000) be filed with the court first and, thereafter, and as a general
rule, service of copy thereof would normally be effected by
If the filing of the pleading is done by transmitting them by the court sheriff or process server upon the defendant,
electronic mail or other electronic means as may be together with the summons issued by the court.
authorized by the court, the date of electronic
transmission shall be considered as the date of filing. As for the pleadings subsequent to the complaint, like an
Electronic filing of pleading may be done through e-mail or answer, reply, or rejoinder, or motions, the general
facsimile transmission, or through other electronic means as procedure is to first serve or furnish copies whereof upon the
the court may allow. opposing party, through his or her lawyer, before filing the
same with the court.
It should be emphasized, however, that while the Amended
Rules now allows ELECTRONIC FILING and SERVICE of Section 4, Rule 13 of the Amended Rules likewise mentions
pleadings, etc., yet there are certain types of pleadings, of judgment as among those that need to be filed with the
processes, and other court submissions that CANNOT and court and served upon the parties. Why is that? The reason
SHOULD NOT be filed or served through electronic for this is that under the rules, court judgment is still required
means, unless expressly permitted by the court. Instructive to be filed with the court. Apropos to this is Section 1, Rules
of this is Section 14, Rule 13 of the Amended Rules, thus: 36 which provides:

Section 14. Conventional service or filing of Section 1, Rule 36. Rendition of judgments and
orders, pleadings and other documents. final orders.
Notwithstanding the foregoing, the following A judgment or final order determining the merits of
orders, pleadings, and other documents must be the case shall be in writing personally and directly
served or filed personally or by registered mail prepared by the judge, stating clearly and distinctly
when allowed, and shall not be served or filed the facts and the law on which it is based, signed
electronically, unless express permission is by him, and filed with the clerk of the court.
granted by the Court:
Presiding from the provision of Section 4, Rule 13 of the
(a) Initiatory pleadings and initial responsive Amended Rules, the lawyer has the right to be served with
pleadings, such as an answer; the formal or written order of the court. In fact no judgment or
(b) Subpoenae, protection orders, and writs; order, final or interlocutory, had juridical existence unless

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reduced to writing, filed with the clerk of court and the same any and all means to ensure that his pleading or motion may
does not bind the parties unless notice thereof is served not be tampered with or intercalated.
upon them by any of the modes prescribed by law (Echaus
vs. Court of Appeals, G.R. No. 57343, July 23, 1660). ELECTRONIC MEANS

But an order of postponement of hearing given in open court Take note that, as worded, the afore-quoted Section 5, Rule
(verbally promulgated in open court) in the presence of the 13 of the Amended Rules likewise allows court notices,
lawyer is held to be valid and is presumed received by the orders, or judgment to be served to the parties through
parties on the very date and time of promulgation and electronic means, among others. That the court may serve
amounts to legal notification (Empress Television vs. its notices, orders, or judgments to the parties electronically
Buencamino, 111 SCRA 575) is buttressed by the new provision under Section 18, Rule 13
of the Amended Rules, which provides:

Section 5. Modes of SERVICE. Section 18. Court-issued orders and other

Pleadings, motions, notices, orders, judgments, and other documents.
court submissions shall be served personally or by The court may electronically serve orders and
registered mail, accredited courier, electronic mail, facsimile other documents to all the parties in the case
transmission, other electronic means as may be authorized which shall have the same effect and validity as
by the Court, or as provided for in international conventions provided herein. A paper copy of the order or other
to which the Philippines is a party. document electronically served shall be retained
and attached to the record of the case.
Please take notice the foregoing provision deals only with
SERVICE of pleadings, motions, notices, orders, judgments, Be that as it may, while the court may now serve its notices,
as differentiated from FILING of pleadings, etc. orders, or judgments to the parties electronically, there are
specific court-issued orders or documents which, ostensibly,
Unlike in the old rules and the 1997 Rules of Civil Procedure MAY NOT be served on the parties through electronic
which merely allowed service of pleadings, etc. in just two means, and these are the orders, or documents mentioned
(2) ways: (1) by personal filing, OR (2) by registered mail, under Sections 13 of Rule 13 of the Amended Rules, to wit:
the Amended Rules now allow such service to be done
through other means or methods, including, but not limited, Section 13. Service of Judgments, Final Orders
to electronic means. Under Section 5, Rule 13 of the or Resolutions.
Amended Rules service may now be done through the Judgments, final orders, or resolutions shall be
following methods: served either personally or by registered mail.
Upon ex parte motion of any party in the case, a
1. By Personal service; or copy of the judgment, final order, or resolution
2. By Registered mail; or may be delivered by accredited courier at the
3. Accredited courier; or expense of such party. When a party summoned
4. Electronic mail; or (if the parties would consent or allow by publication has failed to appear in the action,
it) judgments, final orders or resolutions against him
5. Facsimile transmission; or or her shall be served upon him or her also by
6. Other electronic means as may be authorized by the means of publication at the expense of the
Court; or prevailing party
7. Through other means as provided for in international
conventions to which the Philippines is a party. (Hague Atty. G:
Service Convention; Admin Circ No. 251-2020, Sept 11, Unless this is clarified by the Supreme Court, it is submitted
2020; Refer to Rule 14, Sec.9) that the “judgments, final orders, or resolutions” referred
to under the foregoing Section 13, Rule 13 of the Amended
The 3rd and up to the 7th modes of service of pleadings, Rules – those which, ostensibly, may not be served on the
motions, notices, orders or judgments are innovations under parties or their counsels through electronic means – are
the Amended Rules. Such modes of service, among others, those which finally dispose of and/or terminate the case
are now allowed to facilitate and expedite service of (like a judgment/decision on the merits of the case, or an
pleadings, motions, notices, orders, etc. order/resolution terminating the case, like an order approving
the motion to dismiss); whereas, the “notices, orders, or
So, under the Amended Rules, a party may now serve a judgments” referred to under Sections 5 and 18, Rule 13 of
copy of his pleadings, motions, etc. (other than those the Amended Rules – those which may be served on the
enumerated under Section 14, Rule 13 of the Amended parties or their lawyers through electronic means – are
Rules) to the adverse party and/or his or her counsel of those which do not finally dispose of and/or terminate
record, through any of the above modes of service, which the case (like notice of trial, or an order/resolution/judgment
include, but not limited, to electronic means. on a litigious or even a litigious motion that is, however, short
of, or other than, deciding the case on the merits or
CAVEAT: It is advisable though that, where the pleading or dismissing the same – e.g. resolution of a motion to declare
motion is to be furnished to the other or opposing party the defendant in default, or an order denying a motion to
through electronic means, the sending party must employ dismiss, which is but interlocutory).

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In addition, and as previously discussed, under Section 14, Service at the residence of the party’s or party’s counsel
Rule 13 of the Amended Rules, the following pleadings, should be made by leaving a copy of the pleading, motion, or
processes, and other court submissions CANNOT also be court submissions, etc. with a person of sufficient age and
served or filed through electronic means, unless expressly discretion who must be residing therein. Conversely,
permitted by the court, thus: service of the pleading, motion, or other court submission on
a mere visitor in such residence is invalid.
Section 14. Conventional service or filing of
orders, pleadings and other documents. OLD RULES, If no registered mail, it can be served by
Notwithstanding the foregoing, the following ordinary mail. Before, personal service is preferred than
orders, pleadings, and other documents must be registered mail. If motion or pleading is done through
served or filed personally or by registered mail registered mail there must be an explanation why the motion
when allowed, and shall not be served or filed or leaing was not served personally. If no explanation the
electronically, unless express permission is motion or pleading is deemed that adverse party is not
granted by the Court: served. Under NEW RULES, no more explanation.

(a) Initiatory pleadings and initial responsive

pleadings, such as an answer; Section 7. Service by mail.
(b) Subpoenae, protection orders, and writs; Service by registered mail shall be made by depositing the
(c) Appendices and exhibits to motions, or other copy in the post office, in a sealed envelope, plainly
documents that are not readily amenable to addressed to the party or to the party’s counsel at his or her
electronic scanning may, at the option of the party office, if known, otherwise at his or her residence, if known,
filing such, be filed and served conventionally; and with postage fully pre-paid, and with instructions to the
(d) Sealed and confidential documents or records. postmaster to return the mail to the sender after ten (l0)
calendar days if undelivered. If no registry service is
available in the locality of either the sender or the addressee,
Section 6. Personal Service. service may be done by ordinary mail.
Court submissions may be served by personal delivery of a
copy to the party or to the party’s counsel, or to their  The foregoing rule is self-explanatory.
authorized representative named in the appropriate pleading
or motion, or by leaving it in his or her office with his or her Emphasis should be made, however, that Section 7, Rule 13
clerk, or with a person having charge thereof. If no person is of the Amended Rules gives preference to service by
found in his or her office, or his or her office is not known, or registered mail compared to ordinary mail. In fact, service
he or she has no office, then by leaving the copy, between (but not filing) by ordinary mail may only be done if no
the hours of eight in the morning and six in the evening, at registry service is available in the locality of either the sender
the party's or counsel's residence, if known, with a person of or the addressee.
sufficient age and discretion residing therein.
Take note that service by ordinary may be allowed if, again,
Note: This is different from services in persons, the one no registry service is available in the locality of either end
who must receive the service of summons is the defendant. sender or the addressee.
But in personal service has something to do on how it is
served, either through a person or registered mail. If gi hatod But filing by ordinary mail is generally not allowed, such that
jd na didto so personal service. If the one who received the if filing is nevertheless done by ordinary mail, the pleading,
summons is not the defendant it is a substituted service. motion, or other court submission is not considered filed
until it is actually delivered and received by the court, unlike
The foregoing rule prescribes the manner by which personal where the filing is done by registered mail or by an
service may be effected. accredited courier where, under Section 3, Rule 13 of the
Amended Rules, the date of the mailing shall be considered
Personal service is effected by personally delivering the as the date of filing.
pleading, motion, notice, order, etc.:
a. to the party or
b. to the party’s counsel, or Section 8. Substituted Service.
c. to their authorized representative named in the If service of pleadings, motions, notices, resolutions, orders
appropriate pleading or motion, or and other papers cannot be made under the two preceding
d. by leaving it in his or her office with his or her sections, the office and place of residence of the party or his
clerk, or or her counsel being unknown, service may be made by
e. with a person having charge thereof. delivering the copy to the clerk of court, with proof of failure
of both personal service and service by mail. The service is
Take note, however, that under the second sentence of complete at the time of such delivery.
Section 6, Rule 13 of the Amended Rules, personal service
may also be done by personally delivering the pleading, Section 8, Rule 13 of the Amended Rules deals with the
motion, etc. at the party’s or counsel’s residence, but this situation where the pleadings, motions, notices, etc. cannot
should only be resorted to if and when no person is found in be served on the party or his or his lawyer either by
his or her office, or his or her office is not known, or he or personal service or by registered mail as provided for
she has no office. under Sections 6 and 7 of the Amended Rules, respectively,

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for the reason that the office and place of residence of the the same judicial region of the court where the case is
party or his or her counsel is unknown. In such situation, pending, or at least thirty (30) calendar days if the addressee
service may be made by delivering the copy to the clerk is from outside the judicial region.
of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such  This is an entirely new provision, which is self-
delivery. explanatory.

As worded, Section 8, Rule 13 of the Amended Rules Section 10, Rule 13 of the Amended Rules applies to a
pertains to substituted of pleadings, motions, notices, etc., situation where service of court notices pertaining to a
and, as such, it should be distinguished, as it is different, court setting (pre-trial setting, or hearing schedule) is done
from substituted service of summons under Section 6, Rule by mail, such that there arises a presumption that such
14 of the Amended Rules. notice reached the party or his or her counsel if the same
was mailed to him or to her at least twenty (20) calendar
days prior to the scheduled date of hearing if the addressee
Section 9. Service by electronic means and facsimile. is from within the same judicial region of the court where the
Service by electronic means and facsimile shall be made if case is pending, or at least thirty (30) calendar days if the
the party concerned consents to such modes of service. addressee is from outside the judicial region.

Service by electronic means shall be made by sending an e- It bears to emphasize, however, that Section 10, Rule 13 of
mail to the party’s or counsel’s electronic mail address, or the Amended Rules merely gives a disputable
through other electronic means of transmission as the presumption that the party or counsel receives the
parties may agree on, or upon direction of the court. notification regarding court setting as, thus, sent to him or to
her by mail. Verily, this presumption may be rebutted by
Service by facsimile shall be made by sending a facsimile proof that the party or counsel did not actually receive such
copy to the party’s or counsel’s given facsimile number. notification about court setting.

 This provision is entirely new.

Section 11. Change of electronic mail address or
Under the old rules and the 1997 Rules of Civil Procedure, facsimile number.
service of pleadings, etc. could be done in just two (2) ways: A party who changes his or her electronic mail address or
(1) by personal filing, OR (2) by registered mail. But under facsimile number while the action is pending must promptly
the Amended Rules, such service may now be done, among file, within five (5) calendar days from such change, a notice
others, through electronic means and facsimile if the party of change of e-mail address or facsimile number with the
concerned consents to such modes of service, or upon court and serve the notice on all other parties.
direction of the court.
Service through the electronic mail address or facsimile
Service by electronic means is normally done by sending the number of a party shall be presumed valid unless such party
pleading, motions, orders, notices, etc. through e-mail to the notifies the court of any change, as aforementioned.
party’s or counsel’s e-mail address, or it may done through
other electronic means (perhaps through Viber, or Facebook  This is an entirely new provision, the contents of which
Messenger, etc.) as the parties may agree on, or upon are self-explanatory.
direction of the court.
Under Section 11, Rule 13 of the Amended Rules, it is
Atty. G: Again, it is advisable that, where the pleading or incumbent upon the party or counsel who changes his or
motion is to be furnished to the other or opposing party her electronic mail address or facsimile during the
through electronic means, the sending party must employ pendency of the case to promptly and formally notify the
any and all means to ensure that his pleading or motion may court and the adverse party or opposing lawyer about such
not be tampered with or intercalated. change of electronic mail address or facsimile number,
within five (5) calendar days from such change; otherwise,
For better understanding of the afore-quoted provision, service through his or her previous electronic mail address
please refer to our discussion under Section 5, Rule 13 of or facsimile number as, thus, appearing in the case records
the Amended Rules. shall still be considered as valid.

Q: Suppose there was a mail on notice for hearing. The foregoing rule proceeds from the hornbook doctrine that
However, the party denied having received the notice it is the duty of counsel to adopt and strictly maintain a
that is why he was not able to attend the hearing. What system that efficiently takes into account all court notices
will happen? – Sec.10, Rule 13 sent to him. His failure to do so cannot excuse him from the
consequences of his non-receipt of court notices (Antonio
vs. Court of Appeals, et al., G.R. No. 77656, Aug. 31,
Section 10. Presumptive service. 1987).
There shall be presumptive notice to a party of a court
setting if such notice appears on the records to have been
mailed at least twenty (20) calendar days prior to the
scheduled date of hearing and if the addressee is from within

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Section 12. Electronic mail and facsimile subject and It is submitted that the “notices, orders, or judgments”
title of pleadings and other documents. referred to under Sections 5 and 18, Rule 13 of the
The subject of the electronic mail and facsimile must follow Amended Rules – those which can be served on the parties
the prescribed format: case number, case title and the and/or the counsels through electronic means – are only
pleading, order or document title. The title of each those which do not finally dispose of and/or terminate the
electronically-filed or served pleading or other document, case (like notice of trial, or an order/resolution/judgment on a
and each submission served by facsimile shall contain non-litigious or even a litigious motion that is, however, short
sufficient information to enable the court to ascertain from of, or other than, deciding the case on the merits or
the title: (a) the party or parties filing or serving the paper, (b) dismissing the same – e.g. resolution of a motion to declare
nature of the paper, (c) the party or parties against whom the defendant in default, or an order denying a motion to
relief, if any, is sought, and (d) the nature of the relief sought. dismiss, which is but interlocutory).

 This is an entirely new provision, the contents of which

are self-explanatory. Section 14. Conventional service or filing of orders,
pleadings and other documents.*****
In its simplest form, Section 12, Rule 13 of the Amended Notwithstanding the foregoing, the following orders,
Rules mandates that the pleadings and other documents as pleadings, and other documents must be served or filed
are sent by electronic mail or facsimile shall more or less personally or by registered mail when allowed, and shall not
follow the same prescribed format for filing or serving be served or filed electronically, unless express permission
the same pleadings and other court documents by is granted by the Court:
personal service or by registered mail. The only difference is
the mode of filing or serving the same. (a) Initiatory pleadings and initial responsive pleadings, such
as an answer;
(b) Subpoenae, protection orders, and writs;
Section 13. Service of Judgments, Final Orders or (c) Appendices and exhibits to motions, or other documents
Resolutions. that are not readily amenable to electronic scanning may, at
Judgments, final orders, or resolutions shall be served either the option of the party filing such, be filed and served
personally or by registered mail. Upon ex parte motion of conventionally; and
any party in the case, a copy of the judgment, final order, or (d) Sealed and confidential documents or records.
resolution may be delivered by accredited courier at the
expense of such party. When a party summoned by Please relate this provision to our discussions under
publication has failed to appear in the action, judgments, Sections 3 and 5, of Rule 13 of the Amended Rules.
final orders or resolutions against him or her shall be served
upon him or her also by means of publication at the expense Once again, while the Amended Rules now allows
of the prevailing party. ELECTRONIC FILING and SERVICE of pleadings, etc., yet
there are certain types of pleadings, processes, documents,
 Please relate this provision to our discussions under and other court submissions that CANNOT be filed or served
Section 5, Rule 13 of the Amended Rules. through electronic means, unless expressly permitted by the
 This are processes from the court to the parties. court. And these are, as follows (personally or registered
mail):
Again, while the court may now serve its notices, orders, or
judgments to the parties electronically, pursuant to Sections (a) Initiatory pleadings and initial responsive pleadings, such
5 and 18, of the Amended Rules, it is submitted that service as an answer;
to the parties or counsels of “judgments, final orders, or (b) Subpoenae, protection orders, and writs;
resolutions” which finally dispose of and/or terminate the (c) Appendices and exhibits to motions, or other documents
case (like a judgment/decision on the merits of the case, or that are not readily amenable to electronic scanning may, at
an order/resolution approving the motion to dismiss) MAY the option of the party filing such, be filed and served
NOT be done through electronic means, as, under Section conventionally; and
13, Rule 13 of the Amended Rules, service thereof shall only (d) Sealed and confidential documents or records
be done either by:
(i) personal service, or The pleadings, orders, documents, and other submissions
(ii) by registered mail, or, as, thus, enumerated under Section 14, Rule 13 of the
(iii) upon ex-parte motion of the party, by accredited Amended Rules should only be filed or served, as the case
courier, or may be, either personally or by registered mail. The same
(iv) by publication in situations where a party who had should not be filed or served through electronic means,
been summoned by publication has failed to unless otherwise permitted by the court.
appear in the action personally or through his or
her lawyer. Take note that the pleadings falling under the purview of
paragraph (a) of Section 14, Rule 13 of the Amended Rules
Judge D: How to serve judgment if wla na tultulan, so the are those which are in the nature of initiatory pleadings and
decision or judgment must be also published through initial responsive pleadings. These initiatory pleadings may
publication. Not necessary that whole decision must be include complaint, third-party complaint, or complaint-in-
stated in the publication, only the dispositive portion, and intervention, among others, and the answers thereto.
may be published once, twice or thrice.

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It is my considered view that such initial pleadings could not, or through electronic means or through facsimile
as a general rule, be filed electronically because the filing transmission (which are new permissible modes of service),
thereof ordinarily entails or requires payment of the the provisions of which is self-explanatory.
prescribed docket or filing fees (and to my knowledge, the
court has no infrastructure yet allowing e-payment). Initial Emphasis should be made, however, of the fact that there is
responsive pleadings, such as an answer, could not also be such thing as actual or constructive service, with respect to
filed electronically, as a general rule, as the same may also service by registered mail, through courier service. Actual
require payment of the prescribed docket or filing fees, receipt or service happens if the mail is actually received by
especially if permissive counterclaims are pleaded therein. the party or the counsel, or his or her employee or
messenger in his office (Mata vs. Legarda, 7 SCRA 227).
Under paragraph (b) of Section 14, Rule 13 of the Amended
Rules, subpoenae, protection, and writs cannot also be Constructive service happens if the mail is not claimed by
served through electronic means, unless expressly allowed the addressee:
by the court. And this is because service of such processes  after the lapse of five (5) calendar days from the
or writs would have to be done by the court sheriff and date the addressee received the first notice of the
service thereof ordinarily requires the submission of a return postmaster (for registered mail),
(report) to be submitted by the court sheriff.  of after the at least two (2) attempts to deliver by
the courier service, or
Paragraph (c) of Section 14, Rule 13 of the Amended Rules  upon the expiration of five (5) calendar days after
mentioned about appendices and exhibits to motions, or the first attempt to deliver, whichever is earlier (for
other documents that are not readily amenable to electronic service by courier).
scanning. And this holds true especially in situations where,
among others, such appendices and exhibits are so Example:
voluminous that it would be difficult, if not impossible, to scan If, for instance, the addressee is notified by the postmaster,
and send them via electronic means. on February 3, 2020, informing and directing the addressee
to secure from the postal services a registered mail
Under paragraph (d) of Section 14, Rule 13 of the Amended addressed to him (although this happens only if the
Rules, sealed and confidential documents or records (i.e. registered mail consists of a big parcel because, ordinarily,
medical records) should not be filed or served electronically, registered mail matter is delivered by the postman to the
unless expressly permitted by the court. The reason for the addressee) but the addressee fails to get such registered
proscription is simple – that is, to keep and maintain the mail matter from the postal service after five (5) calendar
confidentiality of such documents or records. days from the date the addressee received the first notice of
the postmaster, the service by registered mail is already
deemed complete on February 8, 2020 (even if the mail is
Section 15. Completeness of service. not actually received by the addressee, or where he secured
Personal service is complete upon actual delivery. Service it on a later date). In other words, the addressee cannot
by ordinary mail is complete upon the expiration of ten (10) simply defeat the process by not claiming the mail matter
calendar days after mailing, unless the court otherwise addressed to him.
provides. Service by registered mail is complete upon actual
receipt by the addressee, or after five (5) calendar days from The rule on completeness of service by registered mail,
the date he or she received the first notice of the postmaster, however, only provides for a disputable presumption and
whichever date is earlier. Service by accredited courier is may, therefore, be rebutted (Cabuang vs. Bello, 95 Phil.
complete upon actual receipt by the addressee, or after at 1135). For constructive notice to apply with respect to
least two (2) attempts to deliver by the courier service, or registered mail, the presumption that official duty has been
upon the expiration of five (5) calendar days after the first regularly performed by the postal services or by the
attempt to deliver, whichever is earlier. postmaster does not apply (Elane vs. Court of Appeals,
G.R. No. 80638, April 26, 1989). There must be clear proof
Electronic service is complete at the time of the electronic of compliance with postal regulations governing sending and
transmission of the document, or when available, at the time receipt of the notice referred to under now Section 15, Rule
that the electronic notification of service of the document is 13 of the Amended Rules (see Barrameda vs. Castillo, 78
sent. Electronic service is not effective or complete if the SCRA 1), and this notice refers to the postmaster’s
party serving the document learns that it did not reach the certification to end that the addressee has been duly notified
addressee or person to be served. about the registered mail which he is to secure from the
postal service (see Santos vs. Court of Appeals, G.R. No.
Service by facsimile transmission is complete upon receipt 120861, September 3, 1998). Conversely, mere notations
by the other party, as indicated in the facsimile transmission on the envelope, such as “RETURN TO SENDER” and
printout. “UNCLAIMED,” standing alone and without the postmaster’s
certification, would not suffice (Johnson and Johnson
 The foregoing rule deals with completeness of service, Phils. vs. Court of Appeals, 201 SCRA 768). But where
as differentiated from completeness of filing. there is such certification by the postmaster, such
certification shall prevail over the bare denial of the lawyer
The foregoing rule has been amended, so as to include about his having been notified of the registered mail
provisions on completeness of service of pleadings, motions, addressed to him (Grafil vs. Feliciano, 20 SCRA 616).
etc. where such service is effected through courier service,

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Section 16. Proof of filing. And this is consistent with the provision under Section 3,
The filing of a pleading or any other court submission shall Rule 13 of the Amended Rules to the end that where filing is
be proved by its existence in the record of the case. done personally, “the clerk of court shall endorse on the
pleading the date and hour of filing.”
(a) If the pleading or any other court submission is not in the
record, but is claimed to have been filed personally, the filing If the pleading, motion, or other court submission is,
shall be proven by the written or stamped acknowledgment however, filed with the court through the other permissible
of its filing by the clerk of court on a copy of the pleading or modes of filing – other than personal filing – and such
court submission; pleading, motion, or other court submission is not found in
the records, then, the filing and existence thereof shall be
(b) If the pleading or any other court submission was filed by proven by the AFFIDAVIT OF SERVICE of the person who
registered mail, the filing shall be proven by the registry filed the same through the other permissible mode of filing
receipt and by the affidavit of the person who mailed it, (other than personal filing) PLUS, or together with, the other
containing a full statement of the date and place of deposit of document(s) mentioned under paragraphs (b) to (e) of
the mail in the post office in a sealed envelope addressed to Section 16, Rule 13 of the Amended Rules, depending on
the court, with postage fully prepaid, and with instructions to how the filing is effected, such as:
the postmaster to return the mail to the sender after ten (10)
calendar days if not delivered. (i) registry receipt and the affidavit of the person
mailing (if the filing is done by registered mail); or
(c) If the pleading or any other court submission was filed (ii) courier’s official receipt and document tracking
through an accredited courier service, the filing shall be number and affidavit of the person mailing (if the
proven by an affidavit of service of the person who brought filing is done by accredited courier service); or
the pleading or other document to the service provider, (iii) paper copy of the pleading or other document
together with the courier’s official receipt and document transmitted, or a written or stamped
tracking number. acknowledgement of its filing by the clerk of court
(if the filing is done by electronic mail or e-mail); or
(d) If the pleading or any other court submission was filed by (iv) copy of the electronic acknowledgment of its filing
electronic mail, the same shall be proven by an affidavit of by the court (if the filing is done through other
electronic filing of the filing party accompanied by a paper authorized electronic means, like facsimile
copy of the pleading or other document transmitted or a transmission, etc.).
written or stamped acknowledgment of its filing by the clerk
of court. If the paper copy sent by electronic mail was filed It should be noted that the provision under the then Section
by registered mail, paragraph (b) of this Section applies. 11, Rule 13 of the 1997 Rules of Civil Procedure – anent the
requirement for an explanation on why filing or service of
(e) If the pleading or any other court submission was filed pleading or motion, etc. is not done personally – is not
through other authorized electronic means, the same shall retained or reproduced under the Amended Rules, thereby
be proven by an affidavit of electronic filing of the filing party suggesting that such explanation is no longer required. Even
accompanied by a copy of the electronic acknowledgment of then, there is no harm if the pleading or motion, etc. that is
its filing by the court. not filed or served personally will be accompanied by such
explanation.
Lest that it be overlooked or mistaken, Section 16, Rule 13
of the Amended Rules deals with the manner on how to
prove the FILING of pleadings, or motions, and other court Section 17. Proof of service.
submission, WITH THE COURT, as differentiated from Proof of personal service shall consist of a written admission
proving the SERVICE thereof, the latter being governed by of the party served, or the official return of the server, or the
Section 17, Rule 13 of the Amended Rules anent proving affidavit of the party serving, containing a statement of the
such service. date, place, and manner of service. If the service is made by:

Notably, Section 16, Rule 13 of the Amended Rules has (a) Ordinary mail. – Proof shall consist of an affidavit of the
been amended to include provisions on how to prove filing of person mailing stating the facts showing compliance with
pleadings, etc. with the court, though the new modes of Section 7 of this Rule.
filing, such as through courier service, or through electronic
mail, or through other electronic means. It is in this light, that (b) Registered mail. – Proof shall be made by the affidavit
Section 16, Rule 13, of the Amended Rules must be read in mentioned above and the registry receipt issued by the
conjunction with Section 3, Rule 13 thereof. mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof,
If the pleading, motion, or other court submission that is the unclaimed letter together with the certified or sworn copy
claimed to have been filed by personal service is not, of the notice given by the postmaster to the addressee.
however, found in the record, the pleader or the movant (the
one who filed such pleading or motion, etc.) shall prove its (c) Accredited courier service. – Proof shall be made by an
filing and existence by the written or stamped affidavit of service executed by the person who brought the
acknowledgement of its filing that is annotated or appearing pleading or paper to the service provider, together with the
on the face of the copy of the pleading or other court courier’s official receipt or document tracking number.
submission as, thus, kept on file by the pleader or movant.

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(d) Electronic mail, facsimile, or other authorized electronic Under Section 18, Rule 13 of the Amended Rules, notice of
means of transmission. – Proof shall be made by an affidavit lis pendens is proper only where the action or proceeding in
of service executed by the person who sent the e-mail, court affects title to or possession of real property. It is
facsimile, or other electronic transmission, together with a essential that the property be directly affected, as where the
printed proof of transmittal. relief sought in the action includes the recovery of
possession, or the enforcement of a lien, or an adjudication
between conflicting claims of title, possession, or right of
possession of specific real property, or requiring its transfer
Section 18. Court-issued orders and other documents.
or sale (Register of Deeds vs. Mercado, 72 Phil 353).
The court may electronically serve orders and other
documents to all the parties in the case which shall have the
A notice of lis pendens may be cancelled during the
same effect and validity as provided herein. A paper copy of
pendency of the case only upon order of the court after
the order or other document electronically served shall be
proper showing that the notice is just for the purpose of
retained and attached to the record of the case.
molesting the adverse party, or that it is not necessary to
protect the rights of the party who caused it to be recorded
 This is an entirely new provision. (Vilayco vs. Tengco, 207 SCRA 600).

For better understanding of this provision, please refer to the It may likewise be cancelled by the Register of Deeds upon
discussions and submissions under Sections 5, 9, 13, and
verified petition of the party who caused the registration
14, Rule 13 of the Amended Rules. thereof (Section 77, P.D. 1529). And it is deemed cancelled
also upon registration of a certificate of the clerk of court in
which the action or proceeding that the action has already
Section 19. Notice of lis pendens. been finally terminated (Section 77, P.D. 1529).
In an action affecting the title or the right of possession of
real property, the plaintiff and the defendant, when A notice of lis pendens cannot, however, be cancelled upon
affirmative relief is claimed in his or her answer, may record the mere filing of a bond by the party on whose title the
in the office of the registry of deeds of the province in which notice is annotated (Tan, et al. vs. Lantin, et al., L-28526,
the property is situated a notice of the pendency of the July 7, 1986).
action. Said notice shall contain the names of the parties and
the object of the action or defense, and a description of the
property in that province affected thereby. Only from the time RULE 14
of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed SUMMONS
to have constructive notice of the pendency of the action,
and only of its pendency against the parties designated by 3 Kinds of Action as to the binding of the decision of the
their real names. court:

The notice of lis pendens hereinabove mentioned may be 1) In personam – service of summons is required
cancelled only upon order of the court, after proper showing because the decision of the court it seeks to impose
that the notice is for the purpose of molesting the adverse personal responsibility or liability upon the defendant.
party, or that it is not necessary to protect the rights of the
party who caused it to be recorded. 2) In rem / Quasi in rem – service of summons is not a
pre-requisite for the court to acquire jurisdiction on the
A notice of lis pendens is intended to protect the real rights defendant. Acquiring jurisdiction over the person of the
of the party who caused the registration thereof (Natano vs. defendant is not required to confer jurisdiction upon the
Esteban, L-22034, October 28, 1966). It serves as a court.
warning to prospective encumbrances or purchasers that
they should keep their hands off the property under litigation Provided, the court has acquired jurisdiction over the
unless they wish to gamble on the result of the litigation res or property. (Trias v. Alcayde, Feb 28, 2018)
involving the same (Tanchoco, et al. vs. Aquino, et al., L- however, service of summons upon the defendant is
30670, September 15, 1987). And, in order for notice of lis still required, but not for the purpose of acquiring
pendens to bind the third parties or the whole world as well, jurisdiction over the person but in compliance with the
and for it to affect the right of a subsequent purchaser, such requirements of due process.
notice should be annotated on the back of the certificate of
title (Dino vs. Court of Appeals, G.R. No. 95921, If there is violation of due process wherein no summons
September 02, 1992). is serve to the defendant, that would raise a serious
jurisdictional issue which cannot be disregarded. So
Parenthetically, if one buys a piece of land with knowledge of where the denial of the fundamental right of due
the existing encumbrance thereon or lis pendens thereon, he process is apparent, a decision rendered in disregard is
cannot invoke the right of a purchaser in good faith. He void due to lack of jurisdiction. SC, regardless of the
cannot also acquire better rights than those of his nature of action, proper service of summons is
predecessors in interest (Heirs of Marasigan vs. IAC, 152 necessary. A decision rendered without proper service
SCRA 253). of summons suffers a defect in jurisdiction. (De Pedro
v. Romasan Dev’ Corporation, Nov. 26, 2014)

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Section 1. Clerk to issue summons. 1. The court has no jurisdiction over the subject matter, or
Unless the complaint is on its face dismissible under Section 2. That there is another action pending between the same
1, Rule 9, the court shall, within five (5) calendar days from parties for the same cause, or
receipt of the initiatory pleading and proof of payment of the 3. That the action is barred by a prior judgment or
requisite legal fees, direct the clerk of court to issue the 4. By statute of limitations, the court, instead of directing
corresponding summons to the defendants. the issuance of summons, may dismiss the case motu
proprio.
SUMMON is the writ or order from the court by which the
defendant is notified of the action brought against him or her
and requiring the defendant to file his answer to the Section 2. Contents.
complaint. The summons shall be directed to the defendant, signed by
the clerk of court under seal, and contain:
Two-fold Purpose:
1. To acquire jurisdiction over the person of the (a) The name of the court and the names of the parties to
defendant; and the action;
2. To notify the defendant that an action has been (b) When authorized by the court upon ex parte motion, an
commenced, so that he may be given an authorization for the plaintiff to serve summons to the
opportunity to be heard on the claim against him defendant;
(Nation Petroleum Gas Incorporated vs. Rizal (c) A direction that the defendant answer within the time
Commercial Banking Corporation, G.R. No. fixed by these Rules; and
183370, August 17, 2015). (d) A notice that unless the defendant so answers, plaintiff
will take judgment by default and may be granted the relief
Service of summons aside from acquiring jurisdiction over applied for.
the person this is required in compliance with the
requirements of due process. (Sagana v. Francisco, 602 A copy of the complaint and order for appointment of
scar 184) guardian ad litem, if any, shall be attached to the original and
each copy of the summons.
If there is no order of the court ordering the dismissal of the
complaint (Sec.1, Rule 9) then the court will have to issue The foregoing provision enumerates the things that should
summons within 5 calendar days. Summons is an order be stated in the summons and which are self-explanatory.
directing the defendant to file his answer within 30 calendar
days. It must be mentioned, however, that item (b) in the above
enumeration is NOVEL. It is not found under the old rules
Warning, failure of the defendant to answer the pleading or and in the 1997 Rules of Civil Procedure. The rule, as it now
complaint a judgment of default may be taken against him stands, is that the court may now authorize the plaintiff or
and the court may render judgment based on the allegations any of its authorized representative to serve summons to the
of the complaint. (sec.2) defendant, and this may happen if, for one, plaintiff files an
ex parte motion for him/her/it to be allowed to serve
It bears to emphasize that the service of summons assumes summons to the defendant. This ex parte motion may be
paramount importance in an action in personam, that is, one filed, and it shall be granted, especially in, but not limited to,
brought against a person on the basis of his or her situations where summons is to be served outside the
personality, so that the court can validly acquire jurisdiction judicial regions of the court where the case is pending, in
over the person of the defendant and for the court to validly consonance with the provisions of Section 3, Rule 14 of the
try and decide the case (Velayo-Fong vs. Velayo, 510 Amended Rules.
SCRA 320).
Prescinding from the tenor of Section 3, Rule 14 of the
Verily, jurisdiction cannot be acquired over the person of the Amended Rules, it is submitted that if it readily appears that
defendant, even if he knows of the case against him, unless the summons is to be served outside the judicial region of
he has been validly served with summons (Ellice Agro- the court where the case is pending, the court may motu
Industrial Corporation vs. Young, 686 SCRA 51, proprio authorize the plaintiff to cause the service of
November 21, 2012) or unless he voluntarily submits to the summons, albeit such may not be embodied in the summons
jurisdiction of the court (Habana vs. Vamenta, et al., L- itself.
27091, June 30, 1970).

As stated in the rules, it is the clerk of court who will Section 3. By whom served.
issue the summons upon the direction of the court. The summons may be served by the sheriff, his or her
deputy, or other proper court officer, and in case of failure of
Take note, however, that under the Amended Rules, the service of summons by them, the court may authorize the
court may not direct the clerk of court to issue summons if plaintiff - to serve the summons - together with the sheriff.
the case is, on its face, dismissible under Section 1, Rule
9 of the Amended Rules. In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff
It is, therefore, submitted that if, on its face, the complaint is shall be authorized to cause the service of summons.
dismissible under any or all of the following grounds:

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If the plaintiff is a juridical entity, it shall notify the court, in The corporation or the juridical person should submit to the
writing, and name its authorized representative therein, court the name of the authorized person who would serve
attaching a board resolution or secretary’s certificate thereto, the summons.
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff. So if corporation, the court should issue an order requiring
the corporation authorize to submit the name of the a person
If the plaintiff misrepresents that the defendant was served authorized by the board to represent the corporation to serve
summons, and it is later proved that no summons was the summons. Take note there are two authorities:
served, the case shall be dismissed with prejudice, the 1. Authority from the board authorizing the
proceedings shall be nullified, and the plaintiff shall be meted representative to represent the corporation to
appropriate sanctions. serve the summons; and
2. Authority from the court authorizing him to serve
If summons is returned without being served on any or all summons.
the defendants, the court shall order the plaintiff to cause the
service of summons by other means available under the Par.4
Rules. Suppose the Plaintiff na anad ug manikas iya gi butang didto
na the defendant was serve summons for the latter to be
Failure to comply with the order shall cause the dismissal of declared in default. What will be the effect?
the initiatory pleading without prejudice.
It shall be a ground for dismissal with prejudice w/o
Who can serve summons: prejudice to additional sanctions that the court may impose
1. Sheriff – service of summons upon the plaintiff. So now may e subject to falsification which
2. Process servers – service of other orders is a criminal case.
3. Deputy; or
4. Other proper court officer. Suppose the summon is returned. It was not able to serve it.
now, the court will order the plaintiff to avail the order modes
Not authorized to serve the summons: the service of the of service of summons such as by publication for the court to
summons will be invalid. let the case to move forward.

What if stenographer, janitor or other persons, can they Atty. G: REVIEW

serve the summons? Subject to some recognized exceptions, the enumeration in
Yes, as long as with court order. Unlike the sheriff, that is Section 3, Rule 14 of the Amended Rules of the persons
part of his functions. who may validly serve summons is exclusive.

Par. 1 Verily, without authority granted by the court, service of

If the sheriff fails to serve the summons in the address summons by a police sergeant, postmaster, or patrolman is
of the defendant pro wla makit.e sa sheriff, bisan kapila invalid (Sequito vs. Letrondo, 105 Phil. 1139; Olar vs.
gi balik. What will they do? Cuna, L-47935, May 5, 1978; and Bello vs. Ubo, et al., L-
Now, the court may authorize the plaintiff to serve the 30353, September 30, 1982).
summons together with the sheriff. The court will issue and
order authorizing the plaintiff the serve with the sheriff. A EXCEPTIONS to Section 3, Rule 14 of the Amended Rules:
plaintiff will only serve if the defendant cannot be found or
located. 1. Section 8, Rule 14 of the Amended Rules,

Par. 2  Whereby the jail warden shall be deemed as a special

Another instance, wherein the summons would be serve by sheriff to serve summons on the defendant who is in
the plaintiff upon the order of the court, note that there must prison.
be a court order if the one serving is not the sheriff, or
process server, is when the defendant is residing outside of 2. Item (a) of the second paragraph of Section 14, Rule
the judicial region of the court. Judicial region is the political 14 of the Amended Rules,
region. Before, and sheriff jd so plitihan jd sya.
 whereby service of summons on a defendant foreign
Now, the Clerk of Court (COC) will coordinate with the COC juridical entity which is not registered in the Philippines,
who has jurisdiction over the residence of the defendant of or has no resident agent but has transacted business or
the other region. So the plaintiff will send a money order is doing business in the Philippines, may be coursed
from the post office para gasto sa pag serve sa summons sa through the appropriate court in the foreign country with
sheriff. So the sheriff there will serve the summon which is the assistance of the department of foreign affairs.
less inexpensive.
3. When summons is served by publication under item
Par. 3 (b) of the second paragraph of Section 14, Rule 14
of the Amended Rules, or under Sections 16, 17, and
Suppose the plaintiff is a juridical person, what would 18, all of Rule 14 of the Amended Rules, which will be
be done? discussed hereafter.

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As heretofore discussed, the court may now authorize the In addition, plaintiff may be meted the appropriate sanctions,
plaintiff or any of his/her/its authorized representative to not the least of which is his being cited in contempt of the
serve summons to the defendant. And, again, this may court. He can even be prosecuted criminally for submitting a
happen if, for one, plaintiff files an ex parte motion for falsified return to the court anent the alleged service of
him/her/it to be allowed to serve summons to the defendant, summons on the defendant.
especially in, but not limited to, situations where summons is
to be served outside the judicial region of the court where If, despite the order of the court for the plaintiff to serve the
the case is pending, in consonance with the afore-quoted summons on the defendant(s), or to assist the sheriff in
Section 3, Rule 14 of the Amended Rules. Such court serving the summons on the defendant(s), the summons is
directive as may, thus, be issued pursuant to plaintiff’s ex returned without being served on any or all of the
parte motion may already be embodied in the summons defendants, the court shall order the plaintiff to cause the
itself pursuant to Section 2 (b), Rule 14 of the Amended service of summons by other means available under the
Rules of Court. Rules, and this may include, but not limited to, service of
summons by publication under Section 16, Rule 14 of the
It is in the foregoing context that Section 3, Rule 14 of the Amended Rules, as may hereafter be discussed.
Amended Rules, requires that if the plaintiff is a juridical
entity, it shall notify the court, in writing, and name its Failure to comply with any of the orders issued under this
authorized representative therein, attaching a board rule – that is, for the plaintiff to cause the service of
resolution or secretary’s certificate thereto, as the case may summons on the defendant, or to assist the sheriff in the
be, stating that such representative is duly authorized to service of summons, or to cause service of summons by
serve the summons on behalf of the plaintiff. other means – shall cause the dismissal of the complaint but
without prejudice, unlike where plaintiff mispresents that
From the tenor of Section 3, Rule 14 of the Amended Rules, defendant was served with summons where the dismissal is
it is, however, submitted that if it readily appears that the with prejudice.
summons is to be served outside the judicial region of the
court where the case is pending, the court may motu proprio
authorize the plaintiff to cause the service of summons. Section 4. Validity of summons and issuance of alias
summons
Where the court authorize the plaintiff or his/her/its Summons shall remain valid until duly served, unless it is
representative to serve the summons outside the judicial recalled by the court. In case of loss or destruction of
region of the court where the case is pending, the plaintiff or summons, the court may, upon motion, issue an alias
his/her/its authorized representative may or may not be summons.
accompanied by the court sheriff or other proper court
officer. There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant in his or her
Example: address indicated in the complaint. Substituted service
Waldi filed before RTC of Cebu City a case for collection of should be in the manner provided under Section 6 of this
sum of money against Otaner Noelag, a resident of Maasin Rule.
City, Southern Leyte. Informatively, Cebu City belongs to the
7TH Judicial Region, while Maasin City, Southern Leyte,  New provision, self-explanatory.
belongs to the 8TH Judicial Region.
Summons now will remain effective until it is recalled or set
In that situation, the RTC of Cebu City, upon ex parte motion aside by the court. If a summon is returned without being
of Waldi, may authorize and direct Waldi or his authorized served the same can be used again to serve the defendants.
representative to cause the service of summons on Otaner It still has an effect even though returned. No need to issue
Noelag in Maasin City, Southern Leyte. Such directive may so called “alias summons” (another summon).
already be embodied in the summons itself pursuant to
Section 2 (b), Rule 14 of the Amended Rules of Court. If the summons was lost or destroyed (torn) that is the time
Again, it is submitted that if it readily appears that the the alias summon would be issued. It will be issued only
summons is to be served outside the judicial region of the upon motion.
court where the case is pending, the court may motu proprio
authorize the plaintiff to cause the service of summons.
Section 5. Service in person on defendant.
In so serving the summons, Waldi or his authorized
Whenever practicable, the summons shall be served by
representative may or may not be accompanied by the court
handing a copy thereof to the defendant in person and
sheriff, or other court officer. Take note that if, in the above
informing the defendant that he or she is being served, or, if
situation, the plaintiff misrepresents that the defendant was
he or she refuses to receive and sign for it, by leaving the
served summons, and it is later proved that no summons
summons within the view and in the presence of the
was served, the case shall be dismissed with prejudice,
defendant
the proceedings shall be nullified, and the plaintiff shall be
meted the appropriate sanctions. Inasmuch as the dismissal
Summons should be served in person.
of the case is with prejudice, the case cannot anymore be re-
filed.

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What is the difference between personal service and filed with the court and furnished to plaintiff’s counsel, in
service in person? consonance with Section 20, Rule 14 of the Amended Rules.
The latter, it should be that the defendant himself who
should receive the copy of the summons, whenever and
wherever. The former, anyone can receive as long as it was Section 6. Substituted service.
received. If, for justifiable causes, the defendant cannot be served
personally after at least three (3) attempts on two (2)
Suppose the defendant will not accept or if received different dates, service may be effected:
they will not sign? What will happen?
If not received, the copy of such shall be left within his view (a) By leaving copies of the summons at the defendant's
and in the presence of the defendant. So e butang sa ubos. residence to a person at least eighteen (18) years of
MUST INFORM THE DEFENDANT THAT WHAT HE age and of sufficient discretion residing therein;
RECEIVED IS A SUMMON. (b) By leaving copies of the summons at the defendant's
office or regular place of business with some competent
What if dli jd Makita.an, how to serve such summons? person in charge thereof. A competent person includes,
Remedy is to avail substituted service of summons. Take but is not limited to, one who customarily receives
note this is an exception, this can only be done if there is correspondences for the defendant;
impossibility of prompt service in person of summons done (c) By leaving copies of the summons, if refused entry
within a period of after 3 attempts on 2 separate days upon making his or her authority and purpose known,
within the period of 30 days from issuance. with any of the officers of the homeowners’ association
or condominium corporation, or its chief security officer
Hence, substituted service of summons can only be done if in charge of the community or the building where the
there has been several attempts made as mentioned above. defendant may be found; and
Go to Section 20, Rule 14 (or Section 6, Rule 14, in this (d) By sending an electronic mail to the defendant’s
reviewer) for a valid substituted service. electronic mail address, if allowed by the court.

In the Sheriff’s return, it must be stated there why substituted

service was done and indicate the different dates and time Atty. G:
that he tried to served the summons and the reasons why it Preferred mode of serving summons on the defendant:
was not served in person, (date, time & circumstances), - “Personal service,” or by serving such summons
Section 20, Rule 14. There is a need to comply all these directly and actually upon the defendant himself or
requirements under Sec.20 to have proper service of herself.
summons. Otherwise, it will be an improper service of
summons, hence, the effect will be the court will not acquire When is Substituted Service resorted?
jurisdiction over the person of the defendant. Substituted service under Section 6, Rule 14 of the
Amended Rules is not the preferred mode of service of
What will happen if the court will proceed with the summons. Resort to substituted service is permitted only
proceedings knowing there is improper service of when the summons cannot be promptly served on the
summons? defendant in person and after stringent formal and
The proceedings will be void or there will be delay, because substantive requirements have been complied with
once there is improper service of summons, the summons (National Petroleum Gas, Incorporated vs. Rizal
has to be served again. Commercial Banking Corporation, G.R. No. 183370,
August 17, 2015).
Atty. G:
Old rules: Personal service of summons Old Rules:
Amended Rules: Service in person on defendant Under Section 7 of the 1997 Rules of Civil Procedure,
substituted of service may be had if the defendant cannot be
Purpose: Such change has been made, if only to avoid personally served with summons “within a reasonable time.”
confusion with personal filing and service of pleadings,
motions, or other court submissions under Rule 13 of the Amended Rules:
Amended Rules. But under Section 6 of the Amended Rules, it is expressly
provided, in the main, that substituted service can only be
Under this rule, service in person on defendant happens if had “if the defendant cannot be served personally after at
summons is directly and actually served on the defendant least three (3) attempts on two (2) different dates.”
himself or herself.
Informatively, this specific condition as, thus, incorporated
If the defendant, however, refuses to receive the summons under now Section 6, Rule 14 of the Amended Rules, is in
and sign the court’s file copy of the summons so as to line with the hornbook pronouncement in the case of
acknowledge receipt of a copy thereof, the one serving the Manotoc vs. Court of Appeals, 499 SCRA 21, where the
summons is authorized to just leave the copy of the Supreme Court, in interpreting the phrase “within reasonable
summons intended for the defendant within the view, and in time” under the previous Section 7 of the 1997 Rules of Civil
the presence, of the defendant. It may be added that this Procedure.
circumstance should be stated in the Return, which shall be

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Manotoc vs. Court of Appeals, 499 SCRA 21

“The landmark case of Manotoc v. CA (Manotoc)23 B. Defendant's office or regular place of business with
thoroughly discussed the rigorous requirements of a some competent person in charge thereof.
substituted service of summons, to wit:
(1) Impossibility of Prompt Personal Service It is not necessary that the person in charge of the
defendant’s regular place of business be specifically
For substituted service of summons to be available, there authorized to receive summons. It is enough that he appears
must be several attempts by the sheriff to personally serve to be in charge (Guanzon vs. Arradaza, 510 SCRA 309), or
the summons within a reasonable period of one month which that he customarily receives correspondences for the
eventually resulted in failure to prove impossibility of prompt defendant. (e.g. clerk, sercretary or guard)
service. "Several attempts" means at least three (3) tries,
preferably on at least two different dates. In addition, the It bears mentioning that the other two (2) alternative modes
sheriff must cite why such efforts were unsuccessful. It is of effecting substituted service of summons under items (c)
only then that impossibility of service can be confirmed or and (d), above, are innovations under the Amended Rules.
accepted. These additional or new modes of effecting substituted
service of summons are not found under the 1997 Rules of
(2) Specific Details in the Return Civil Procedure.

The sheriff must describe in the Return of Summons the C. IF refused entry upon making his or her authority
facts and circumstances surrounding the attempted personal and purpose known, with any of the officers of the
service. The efforts made to find the defendant and the homeowners’ association or condominium
reasons behind the failure must be clearly narrated in detail corporation, or its chief security officer in charge of
in the Return. The date and time of the attempts on personal the community or the building where the defendant
service, the inquiries made to locate the defendant, the may be found.
name/s of the occupants of the alleged residence or house
of defendant and all other acts done, though futile, to serve This mode of service is impelled and borne out by the sad
the summons on defendant must be specified in the Return experience or spectacle wherein, more often than not,
to justify substituted service. service of summons could not be effected on the defendant
who resides in a subdivision and who has given instructions
(3) A Person of Suitable Age and Discretion or standing orders to the security guards of the subdivision
not to let any court sheriff or court officer enter the
The sheriff must therefore determine if the person found in subdivision, thereby effectively thwarting service of
the alleged dwelling or residence of defendant is of legal summons, and which practice was openly disdained and
age, what the recipient's relationship with the defendant is, condemned by the Supreme Court in the case of Robinson
and whether said person comprehends the significance of vs. Miralles, 510 SCRA 678.
the receipt of the summons and his duty to immediately
deliver it to the defendant or at least notify the defendant of When the defendant temporarily stayed in another place to
said receipt of summons. These matters must be clearly and avoid to avoid service of summons, the substituted service of
specifically described in the Return of Summons. (Emphases summons was proper. Sagana v. Francisco, Oct 2, 2009
and underscoring supplied).”
D. By sending an electronic mail to the defendant’s
SUBSTITUTED SERVICE electronic mail address, if allowed by the court.

A. Defendant's residence to a person at least eighteen This is introduced under the Amended Rules, so as to
(18) years of age and of sufficient discretion expedite service of summons and is consistent with the
residing therein policy of the Supreme Court to now allow electronic service
of court documents.
The defendant’s residence, summons must be served at his
residence at the time of such service and not at his former Take note, however, that substituted service of summons
place of residence. through electronic mail to the defendant’s electronic mail
address may only be had, IF ALLOWED BY THE COURT.
The term “dwelling house” or “residence” refers to dwelling
house at the time of service – not former dwelling house, Rule of the Thumb: Whenever service by summons or
office, or abode. Such terms refer to the place where the other pleadings is allowed it should be with leave of court.
person named in the summons is living at the time when
service is made, even though he may be temporarily out of REMINDER:
the country at the time (Venturanza vs. Court of Appeals, Please bear in mind that as long as the substituted service of
156 SCRA 305). summons has been validly done, it is immaterial that the
defendant does not in fact receive actual notice. This will not
Hence, substituted service to the wife of the summons affect the validity of the service.
intended for her husband is valid (Daran vs. Angco, 20
SCRA 1127), but not when the spouses are not residents of Accordingly, the defendant may be charged by a judgment
the same place (Valmonte vs. Court of Appeals, 252 in personam as a result of legal proceeding upon a method
SCRA 92). of service which is not personal, “which in fact may not

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become actual notice to him,” and which may be

accomplished in his lawful absence from the country. For the Ablaza vs. Court of Industrial Relations, 126 SCRA 247
rules (on substituted service of summons) do not require that Thus, in a case, where the action was brought against
papers be served on defendant personally or a showing that “Cerisco Blackat Trading,” which designation was a
the papers were delivered to the defendant by the person combination of the trademark and business name under
with whom they were left (Montalban vs. Maximo, 22 SRA which the owners of the establishment were doing business,
1070). the summons served upon the “president/owner/manager” of
said firm, although they were not impleaded as defendants in
But while it is not required for the validity of substituted of the complaint, was valid and the court acquired jurisdiction
service of summons that defendant actually receives such over their persons.
summons, his actual receipt thereof would nonetheless cure
any irregularity in effecting substituted service of summons.
Thus where summons was in fact received by the defendant,
Section 8. Service upon prisoners.
his argument that the sheriff should have tried first to serve
When the defendant is a prisoner confined in a jail or
summons on him personally before resorting to substituted
institution, service shall be effected upon him or her by the
service of summons to his wife, is not meritorious (Boticano
officer having the management of such jail or institution who
vs. Chu, Jr., 148 SCRA 541).
is deemed as a special sheriff for said purpose. The jail
warden shall file a return within five (5) calendar days from
service of summons to the defendant.
Section 7. Service upon entity without juridical
personality.
Relate this to our discussion on Section 3, Rule 14 of the
When persons associated in an entity without juridical
Amended Rules.
personality are sued under the name by which they are
generally or commonly known, service may be effected upon
Under the forgoing rule, the jail warden or the officer
all the defendants by serving upon any one of them, or upon
having he management of the jail wherein the defendant is
the person in charge of the office or place of business
imprisoned shall be deemed deputized as special sheriff,
maintained in such name. But such service shall not bind
and is, thus, authorized to serve the summons on the
individually any person whose connection with the entity has,
defendant who is under detention. The jail warden shall,
upon due notice, been severed before the action was filed.
however, file a return within five (5) calendar days from
service of summons to the defendant
This provision serves to complement the provision under
Section 15, Rule 3 of the Rules of Court which provides:
Section 9. Service consistent with international
Section 15. Entity without juridical personality
conventions.
as defendant.
Service may be made through methods which are consistent
When two or more persons not organized as an
with established international conventions to which the
entity with juridical personality enter into a
Philippines is a party. (n)
transaction, they may be sued under the name by
which they are generally or commonly known. In
 This provision is entirely new.
the answer of such defendant, the name and
 This provision allows service of summons through other
addresses of the persons composing said entity
must all be revealed. methods, albeit not specified under the present rules,
as long such methods are consistent with established
international conventions to which the Philippines is a
party.
So, where an action is brought against persons associated in
an entity without juridical personality – i.e, corporation or
So, if, for instance, the Philippines accedes to, and ratifies,
partnership by estoppel – the action may be maintained
the Hague Service Convention, then service of summons
against them under the name by which they are generally or
in other jurisdiction may be done pursuant to such treaty.
commonly known. Even if that “firm” is not duly registered
with Securities and Exchange Commission – and summons
The Hague Service Convention
may be effected upon all the defendants by:
- Established a more simplified means for parties to
(i) By serving the summons upon any one them, or
effect service in other contracting states.
(ii) Serving the summons upon the person in
- Each contracting state is required, among other
charge of the office of place of business
things, to designate a central authority to accept
maintained in such name.
incoming requests for service.
- A judicial officer who is competent to serve
Example: “Tuslob Buwa Corporation,”
process in the state of origin is permitted to send
request for service directly to the central authority
But such service shall not bind individually any person
of the state where service is to be made.
whose connection with the entity has, upon due notice, been
- Upon receiving the request, the central authority in
severed before the action was filed. For that person to be
bound in the action, therefore, he must be separately served the receiving state arranges for service in a
manner permitted within the receiving state,
with summons, either in person or through substituted
typically through a local court.
service of summons.

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- Once service is effected, the central authority summons” done on the spouse in the Philippines with
sends a certificate of service to the judicial officer respect to the summons intended for his/her spouse who
who made the request. Parties are required to use does not reside and is not found in the Philippines is invalid
three standardized forms: (Valmonte vs. Court of Appeals, 252 SCRA 92), unless
o A request for service, the spouse in the Philippines is empowered to represent the
o A summary of the proceedings (similar other spouse who does not reside and is not found in the
to a summons), and Philippines (see Gemperle vs. Schenker, 125 Phil. 258).
o A certificate of service.
Example:
The Hague Convention likewise provides for various modes Where husband is in the Philippines but the wife does not
of process service of documents such as by postal channel reside and is not found in the Philippines – i.e. a non-
or by diplomatic/consular agents, judicial officers, officials or resident alien – and the action is characterized, as an action
other competent persons, or even by mail in states that have in rem or quasi in rem, then service of summons for the wife
not objected to that method. should be done strictly in accordance with Section 17, Rule
14 of the Amended Rules, which includes, but is not
In the Philippines, there is a court order authorizing the necessarily limited to, service of summons by publication, as
court administrator as our designated central authority. shall hereafter be discussed, but which does not allow or
include substituted service of summons (see Valmonte vs.
Court of Appeals, 252 SCRA 92).
Section 10. Service upon minors and incompetents.
When the defendant is a minor, insane or otherwise an Example:
incompetent person, service of summons shall be made Where the husband is in the Philippines and the wife is
upon him or her personally and on his or her legal guardian likewise a resident of the Philippines but who is temporarily
if he or she has one, or if none, upon his or her guardian ad out of the country – i.e. she is taking a vacation abroad –
litem whose appointment shall be applied for by the plaintiff. then, insofar as the defendant wife is concerned, service of
In the case of a minor, service shall be made on his or her summons should be done in accordance with Section 18,
parent or guardian. Rule 14 of the Amended Rules, which includes, but is not
limited to, service of summons by publication, but which also
Minor Defendant allows substituted service, as shall hereafter be discussed.
 Summons must served on him, regardless of his age
(unlike under the old rules which only requires such
service on the minor if be at least 15 years old but Section 12. Service upon domestic private juridical
below 18 years old) AND upon his parent or guardian. entity.
When the defendant is a corporation, partnership or
Incompetent or Insane Defendant association organized under the laws of the Philippines with
 Summons must also be served on him personally AND a juridical personality, service may be made on the
on his or her legal guardian or his parent (if the latter is president, managing partner, general manager, corporate
his legal guardian). secretary, treasurer, or in-house counsel of the corporation
wherever they may be found, or in their absence or
In any event, if the defendant who is a minor, insane, or unavailability, on their secretaries.
otherwise insane has no guardian, the plaintiff must obtain
the appointment of a guardian ad litem for such defendant. If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
Section 11. Service upon spouses. receives the correspondence for the defendant at its
When spouses are sued jointly, service of summons should principal office.
be made to each spouse individually. (n)
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the
This is a new provision. And this has been introduced under
receiver or liquidator, as the case may be.
the Amended Rules, in line with the amended provisions
under Section 4, Rule 3 of the Rules of Court, which
Should there be a refusal on the part of the persons above-
provides:
mentioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
Section 4. Spouses as parties.
electronically, if allowed by the court, as provided under
Husband and wife shall sue or be sued jointly,
Section 6 of this Rule.
except as provided by law.

So, where the spouses are sued jointly, service of This provision enumerates the persons upon whom
summons must be made to each spouse individually / summons for a domestic private juridical entity may be
separately.. served. And the rule must be observed. Service must be
made only to one named in the rules
This requirement that each spouse must be individually
served with summons assumes paramount importance,
especially in situations where the spouses are not residents
of the same place, such that “substituted service of

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E.B. Viilarosa & Partner Co., Ltd. versus Hon. Benito, g) On the respective secretaries of the above-named
G.R. No. 136426, August 4, 1999, corporate officers, in their absence or
Our Supreme Court declared as invalid the service of unavailability; or
summons upon the Branch Manager of the petitioner at its h) On the person who customarily receives the
branch office at Cagayan de Oro City instead of upon the correspondence for the domestic juridical entity at
General Manager at its principal office at Davao City, holding its principal office, in the event that service of
that: summons could not be made on the persons
enumerated under items (a) to (g), above; or
“The designation of persons or officers who are authorized to i) The receiver or liquidator, as the case may be, in
accept summons for a domestic corporation or partnership is case the domestic juridical entity is under
now limited and more clearly specified in Section 11, Rule 14 receivership or liquidation
of the 1997 Rules of Civil Procedure. The rule now states
"general manager" instead of only "manager" ; "corporate Note: The service must be done in the said order of
secretary" instead of "secretary" ; and "treasurer" instead of preference above, corporate officer, then secretaries of each
"cashier." The phrase "agent, or any of its directors" is corporate officers, then the person who customarily receives
conspicuously deleted in the new rule.” correspondence, and last resort is the guard if none of those
mentioned are present to serve with summons. The reasons
Under the Amended Rules, in the following person, it is not must be stated in the Sheriff’s Return why summons was
required that the service of summons for the domestic serve on such person.
juridical entity be made at their respective corporate offices,
in that it is enough that such service of summons on any of If the company is under receivership or liquidation, the
them be made “wherever they may be found.” service of summons shall be made to the receiver or
a) president, liquidator.
b) managing partner,
c) general manager, Example: A bank was ordered closed due to bankruptcy, the
d) corporate secretary, summons shall be served with the PDIC.
e) treasurer, or
f) the in-house counsel of the corporation, Last Priority: Should there be a refusal on the part of the
persons above-mentioned to receive summons despite at
So, service of the summons for the corporation upon such least three (3) attempts on two (2) different dates, service
corporate officers is valid even if done at their respective may be made electronically, if allowed by the court (court
residences or in any other place. order), as provided under Section 6 of this Rule.

Secretaries (Clerk) Note above, there is no period of time specified if such

 Also, service of summons for the domestic juridical service must be done within 30 days, hence, if the service of
entity may now be made on the secretaries of such summons was done three (3) attempts on two (2) different
corporate officers (mentioned-above) in the absence dates even prior 30 days, the plaintiff shall file a motion in
or unavailability of such corporate officers. court for the service of summons electronic mail.

Persons who Customarily Receives Correspondence

 Moreover, if such service cannot be made upon any of Section 13. Duty of counsel of record.
the foregoing corporate officers or their secretaries, in Where the summons is improperly served and a lawyer
their absence or unavailability, it shall be made upon makes a special appearance on behalf of the defendant to,
the person who customarily receives the among others, question the validity of service of summons,
correspondence for the defendant at its principal the counsel shall be deputized by the court to serve
office. summons on his or her client.

Conversely, if summons could not be served on the afore- Judge D:

named corporate officers, or their respective secretaries, the Before when there is improper service of summons, lawyers’
service of summons may be made on a mere corporate file motion to dismiss. But now that is prohibited.
clerk or any corporate personnel at its principal office if
such clerk or personnel customarily receives the In the Amended Rules, when there is a improper service of
correspondence for the defendant at its principal office. summons, it will be an affirmative defense to be included in
the answer of the defendant.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the When made, during the hearing the court may deputized the
receiver or liquidator, as the case may be. counsel of the defendant to serve the summons, hence, he
will be transformed as a “special sheriff”.
a) President; or
b) Managing partner; or Q: Is the counsel also required to submit a report/return
c) General manager; or to the court?
d) Corporate secretary; or A: Yes, stated under Sec.20 of this rule because he has
e) Treasurer; or been deputized by the court to serve summons.
f) In-house counsel; or

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Atty. G:
 This is a new provision, which, to my mind, and with all  A foreign corporation with license to do business in the
due respect, renders the objection on the ground of lack Philippines may sue or be sued in the country.
of jurisdiction over the person of the defendant
meaningless. On the other hand, if a foreign corporation transacts
business in the Philippines without the required license, it
The foregoing provision mentions about special appearance cannot, as a rule, be permitted to maintain or intervene in
of counsel to, among others, question the validity of service any action, suit or proceeding in any court or agency in the
of summons. However, where what is being questioned is Philippines. Such corporation may, however, be sued or
the validity of service of summons on the person of the proceeded against before Philippine courts or administrative
defendant – which obviously hinges on or affects the court’s tribunal on any valid cause of action recognized under
jurisdiction over his person – such objection, sadly, is no Philippine laws (Section 133 of the Corporation Code). But
longer among the permissible grounds for filing a motion to the general rule that a foreign corporation transacting
dismiss. business in the Philippines without the required license
cannot sue in our local forum admits, however, of
exception, such that an unlicensed foreign corporation
Section 14. Service upon foreign private juridical doing business in the Philippine may be allowed to bring
entities. action in the Philippine courts against a citizen of the
When the defendant is a foreign private juridical entity which Philippines or entity who had contracted with and benefited
has transacted or is doing business in the Philippines, as from said corporation, for such citizen or party shall be
defined by law, service may be made on its resident agent deemed in estoppel (Agilent Technologies Singapore
designated in accordance with law for that purpose, or, if [PTE] Ltd. vs. Integrated Silicon Technology Philippines
there be no such agent, on the government official Corporation, G.R. No. 154618, April 2004).
designated by law to that effect, or on any of its officers,
agents, directors or trustees within the Philippines.  As to what acts constitute “doing business in the
If the foreign private juridical entity is not registered in the Philippines,” the same are enumerated under Section 3
Philippines, or has no resident agent but has transacted or is (d) of the Foreign Investment Act of 1991 and the Rules
doing business in it, as defined by law, such service may, and Regulations implementing the Omnibus
with leave of court, be effected outside of the Philippines Investments Code of 1987, among others
through any of the following means:
Under the foregoing Section 14, Rule 14 of the Amended
(a) By personal service coursed through the appropriate Rules, where the defendant in an action is a foreign private
court in the foreign country with the assistance of the juridical entity which has transacted or is doing business in
department of foreign affairs; the Philippines, as defined by law, service may be made:
(b) By publication once in a newspaper of general
circulation in the country where the defendant may be (i) on its resident agent designated in accordance
found and by serving a copy of the summons and the with law for that purpose, or, if there be no such
court order by registered mail at the last known address agent,
of the defendant; (ii) on the government official designated by law to
(c) By facsimile; that effect, if none,
(d) By electronic means with the prescribed proof of (iii) on directors or trustees within the Philippines, or
service; or
(e) By such other means as the court, in its discretion, may Q: Who is this proper government officials authorize to
direct receive summons on behalf of foreign juridical entity?
 If bank, summons may be made on the Banko
This above rule governs service of summon on a foreign Sentral ng Pilipinas (BSP).
private juridical entity.  If insurance company, summons may be made on
the Insurance Commission.
Corporation Code on Foreign Corporation  Other corporations, summons may be serve
through the Securities and Exchange Commission
As a backgrounder, it bears to state that, under Section 123 (SEC).
of the Corporation Code, a foreign corporation may be
allowed to transact business in the Philippines after it shall  Rule 11 of the Amended Rules, if summons for the
have obtained a license to transact business in the country defendant foreign private juridical entity is served on its
and a certificate of authority from the appropriate resident agent in the Philippines designated in
government agency. And under Section 128 of the accordance with law for that purpose, or on any of its
Corporation Code, as a condition precedent to the issuance officers, agents, directors or trustees within the
of the license to transact business in the Philippines, the Philippines, then the time to answer shall be thirty (30)
foreign corporation shall file with the Securities and calendar days from service of summons, in
Exchange Commission a written power of attorney accordance with Section 1, Rule 11 of the Amended
designating some person (resident agent) who must be a Rules.
resident of the Philippines, on whom summons and other
legal processes may be served in all actions or proceedings  If, however, service of summons is served on the
against such corporation. government official designated by law to receive the

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same, it shall be the duty of that government official to NOTE:

send copy of the summons to the home office of the  The different modes of serving summons on foreign
said defendant, and the time to answer shall be sixty private juridical entities not registered in the Philippines
(60) calendar days after receipt thereof by the home or have no resident agents but have transacted
office, pursuant to Section 2, Rule 11 of the Amended business therein as, thus, enumerated in items (a) to
Rules. (e), above, may only be resorted to UPON LEAVE OF
COURT.
The government officials designed by law to receive
summons for foreign private juridical entity are as follows:  That where the service of summons on a foreign private
juridical entity not registered in the Philippines or has no
(a) Superintendent of Banks, for banking, savings and resident agent but has transacted business in country is
loan trust corporations (Section 17, R.A. 337); done by publication pursuant to item (b), above, upon
(b) Insurance Commissioner, for insurance corporations leave of court, the publication of the summons shall be
(Section 177 of the Insurance Act, as amended); done in the newspaper of general circulation in the
(c) The Securities and Exchange Corporation, for other country where the defendant may be found, unlike in
corporations (Section 123 of the Corporation Code). summons by publication under Sections 16, 17, and 18,
all of Rule 14, of the Amended Rules, where the
It may be added that the laws authorizing service of publication may be done in the newspaper of general
processes upon the afore-named government officials allow circulation in the Philippines.
such service of summons even if the foreign corporation has
ceased to do business in the Philippines. Section 128 of the In both cases, though, there is a uniform requirement
Corporation Code and Section 190 of the Insurance Code that copies of the summons and the court order
contemplates of two situations: allowing summons by publication be sent by registered
mail at the last known address of the defendant.
1. If the corporation has left the Philippines or had ceased
to transact business therein, and But the poser is: Within what time should the answer of the
2. if the corporation has no designated agent. Section 17 foreign private juridical entity (which is not registered in the
of the General Banking Act does not even speak of a Philippines or has no resident agent but has transacted
corporation which had ceased to transact business in business therein) be filed if service of summons upon it is
the Philippines (Northwest Airlines vs. Court of done through any of the modes of service enumerated and
Appeals, 241 SCRA 192). allowed under items (a) to (e), above?

Where, however, the defendant in the action is not Section 14, Rule 14 of the Amended Rules, and Rule 11,
registered in the Philippines, or has no resident agent but thereof, are conspicuously silent on this.
has transacted or is doing business in it, as defined by law,
such service may, with leave of court, be effected outside It is submitted, however, that such answer should be filed
of the Philippines through any of the following means: with the period of not less than sixty (60) calendar days from
notice, inasmuch as such modes of service requires leave of
a) By personal service coursed through the appropriate court and, relevantly, under the last sentence of Section 17,
court in the foreign country with the assistance of the Rule 14 of the Amended Rules of Court, it is provided that
department of foreign affairs; “any order granting such leave shall specify a reasonable
time, which shall not be less than sixty (60) calendar days
b) By publication once in a newspaper of general after notice, within which the defendant must answer.”
circulation in the country where the defendant may be
found and by serving a copy of the summons and the
court order by registered mail at the last known address Section 15. Service upon public corporations.
of the defendant; When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case of a
c) By facsimile; province, city or municipality, or like public corporations,
service may be effected on its executive head, or on such
d) By electronic means with the prescribed proof of other officer or officers as the law or the court may direct.
service; or
 This above rule is self-explanatory.
e) By such other means as the court, in its discretion, may  It may be relevant to add though that, in actions for
direct. declaratory relief under Rule 63 of the Rules of Court,
even if the Republic or its local political subdivisions is
not directly impleaded as respondents therein, there is
Global business Holding Incorporated v. Surekok still a need to comply with the following notification
Software, Oct. 13, 2010 requirements, thus:
Service of summons on a corporation who has not been
granted license to engaged business in the Philippines but Section 3. Notice on Solicitor General.
has transacted with a Filipino. In any action which involves the validity of a statute,
executive order or regulation, or any other
governmental regulation, the Solicitor General shall be

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notified by the party assailing the same and shall be service of summons by registered mail, (twin-requirement).
entitled to be heard upon such question. (3a, R64) The latter is merely formality called “complimentary service
of summons by registered mail” at his last known address.
Section 4. Local government ordinances.
In any action involving the validity of a local government Q: May this be done in all cases?
ordinance, the corresponding prosecutor or attorney of A: Yes, in all kinds of cases or actions, in personam, in rem,
the local governmental unit involved shall be similarly or quasi in rem, whether involve personal or real property.
notified and entitled to be heard. If such ordinance is
alleged to be unconstitutional, the Solicitor General Q: How many times?
shall also be notified and entitled to be heard. A: There is no mentioned period, if 3 times a week or not, it
depends on the court.
Heirs of Mangulat v. CA, Aug 20, 2008
The defendant is the Bureau of Telecommunications; this is It bears to stress, however, that under Section 14, that Rule
an agency of the government. The Solicitor General should 14 of the Amended Rules, summons by publication may be
be the one to be served with summons. had in actions where the defendant is unknown or whenever
his or her whereabouts are unknown, and this may be validly
done regardless of the nature of the action -- whether the
action it is in personam, or an action in rem, or quasi in rem.
Section 16. Service upon defendant whose identity or
After all, Section 16, Rule 14 of the Amended Rules speak of
whereabouts are unknown.
“any action” with no distinction or qualification, whatsoever.
In any action where the defendant is designated as an
We will have more on this in the ensuing discussions.
unknown owner, or the like, or whenever his or her
whereabouts are unknown and cannot be ascertained by
 Santos v. PNOC Exploration Corporation, Sept 23,
diligent inquiry, within ninety (90) calendar days from the
2008
commencement of the action, service may, by leave of court,
be effected upon him or her by publication in a newspaper of
general circulation and in such places and for such time as
the court may order. Section 17. Extraterritorial service.
When the defendant does not reside and is not found in the
Any order granting such leave shall specify a reasonable Philippines, and the action affects the personal status of the
time, which shall not be less than sixty (60) calendar days plaintiff or relates to, or the subject of which is, property
after notice, within which the defendant must answer. within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
 Please relate this provision to our discussion on Section
defendant from any interest therein, or the property of the
14, Rule 3 of the Rules of Court which provides:
defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
Section 14. Unknown identity or name of
personal service as under Section 6; or as provided for in
defendant.
international conventions to which the Philippines is a party;
Whenever the identity or name of a defendant is
or by publication in a newspaper of general circulation in
unknown, he may be sued as the unknown owner
such places and for such time as the court may order, in
heir devisee, or by such other designation as the
which case a copy of the summons and order of the court
case may require, when his identity or true name
shall be sent by registered mail to the last known address of
is discovered, the pleading must be amended
the defendant, or in any other manner the court may deem
accordingly.
sufficient. Any order granting such leave shall specify a
)reasonable time, which shall not be less than sixty (60)
Where the defendant (resident defendant) is unknown or
calendar days after notice, within which the defendant must
whenever his or her whereabouts are unknown and cannot
answer.
be ascertained by diligent inquiry, service of summons may,
by leave of court, be effected upon be effected upon him or
her by publication in a newspaper of general circulation and Judge D:
in such places and for such time as the court may order.  This applies to defendants who are not residing in the
Philippines and at the same time cannot be located in
This provision now makes it clear that any order granting the Philippines, hence, necessarily he is a foreigner.
such leave shall specify a reasonable time, which shall not  He could be a former Filipino but residing abroad.
be less than sixty (60) calendar days after notice, within  The service of summons may be done, with leave of
which the defendant must answer. court, in any of the following modes:

Note: Prior publication, there should be a motion asking by 1. Personal service or course through the Foreign
leave of court to serve summons by publication upon the Affairs.
defendant on the ground that his whereabouts are unknown. 2. Provisions of the International Treaties (Hague
The entire complaint should be published together with the Service Convention)
summons. 3. By publication in a newspaper of general
circulation.
Rule of the Thumb: Whenever service of summons by  Can be done in the Philippines since the
publication is allowed by the court it must be coupled with ROC did not mention which country

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should publication be done. Provided, it

is a newspaper of general circulation. c) The action against him is either in rem or quasi in
 Common kind of service used by court. rem, such as:
 Rule of the Thumb: Whenever service i. Actions that affect the personal status of the
of summons by publication is allowed plaintiff; or
by the court it must be coupled with ii. Actions which relate to, or the subject matter
service of summons by registered mail, of which is property within the Philippines
(twin-requirement). The latter is merely (real or personal), in which the defendant
formality called “complimentary claims a lien or interest, actual or contingent;
service of summons by registered and
mail” at his last known address even iii. Actions in which the relief demanded consists
though the address is in abroad. wholly or in part, in excluding the defendant
from an interest in property located in the
4. By any other means that the court may deem Philippines; or
sufficient. iv. When the defendant’s property has been
a. Registered mail (Caryaga v. Malaya 143 attached in the Philippines.
scra 441)
When the foregoing conditions are met, extraterritorial
This provision shall only applied to an action filed against the service of summons may now be had, with prior leave of
defendant who is not residing in the Philippines and cannot court, through any of the following alternative modes:
be located in the Philippines and the action affects the
personal status of the plaintiff (rem & quasi in rem) this a) Personal service as under Section 5, Rule 14 of the
service will not apply to actions in personam. Amended Rules, which, however, is to be effected
outside the Philippines;
Example: declaration of nullity of marriage; annulment of
marriage; recognition of a child; actions that involve the Take note please that if personal service of summons to a
property of the defendant (personal or real). nonresident defendant and who is not found in the
Philippines is effected outside the Philippines, said service is
Example of In personam: Collection of sum of money, but made in compliance with due process with the
because this kind of action seeks to impose a personal requirements of due process, and not for purposes of
responsibility or liability upon the defendant. acquiring jurisdiction over the person of the defendant. The
reason is explained in the case of Northwest Orient
 The defendant is given 60 calendar days to file his Airlines vs Court of Appeals, G.R. No. 112573, February
answer. 9, 1995,

Valmonte vs. Santos & CA, 252 SCRA 92 b) Through any manner as provided for in international
SC: When the action is a quasi in rem involving a defendant conventions to which the Philippines is a party;
who is not found in the Philippines, acquiring jurisdiction over
the person of the defendant is not necessary as long as the  This is in consonance with Section 9, Rule 14 of the
ocurt has acquired jurisdiction over the res or property but Amended Rules.
still service of summons upon the person of the defendant is
required to satisfy the requirement of due process. c) By publication in a newspaper of general circulation in
such places and for such time as the court may order,
 Sahagun vs. Court of Appeals, G.R. No. 78328, in which case a copy of the summons and order of the
June 3, 1991 court shall be sent by registered mail to the last known
address of the defendant;
Atty. G:
The foregoing rule governing extraterritorial service of Summons by publication is done by publishing the
summons applies only when the following requisites concur: summons, together the order of the court allowing such
summons by publication, in the newspaper of general
a) The defendant is a nonresident; circulation in the Philippines in such places and for such time
as the court may order (Sahagun vs. Court of Appeals,
If the individual defendant is a resident of the Philippines and 198 SCRA 44), although there is no prohibition against
is found in the Philippines, then service of summons on him availing of foreign newspaper in extraterritorial service of
is primarily governed by Section 5 or 6, Rule 14 of the summons.
Amended Rules, and not under Section 17, Rule 14 of the
Amended Rules. In summons by publication, there is an added requirement
that copies of the summons and the order of the court
b) He is not found in the Philippines; and allowing summons by publication shall be sent by registered
mail to the last known address of the defendant. Such
If the individual defendant is a resident of the Philippines but sending by registered mail of the summons and the order of
who is temporarily out of the Philippines, then service of the court is not, however, for purposes of vesting the court
summons on him is primarily governed by Section 18, Rule with jurisdiction but merely for satisfying the due process
14 of the Amended Rules.

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requirements (Biaco vs. Philippine Countryside Rural Philippines. After a brief stay in the Philippines, he was
Bank, 515 SCRA 106) supposed to go back to Wuhan, China, but was prevented
from leaving due to the lockdown brought about by CoVid-
In fine, as long as the summons, together the order of the 19. As he was stuck here, he ran out of cash, so he obtained
court allowing such summons by publication, had been a short loan from you, secured with a real estate mortgage
published in the newspaper of general circulation in the constituted on his inherited parcel of land situated in the
Philippines in such places and for such time as the court Philippines. He failed to pay his loan upon due date. So, you
may order and as long as copies of the summons and the instituted a foreclosure proceeding involving the mortgaged
order of the court were sent by registered mail to the last property, but even before you could file the action, your
known address of the defendant, the court may already friend had already surreptitiously flown back to Wuhan,
proceed to hear and decide the case even if there is no China.
absolute assurance that said nonresident defendant shall
thereby receive actual notice; after all, such service of Q: Can the court still acquire jurisdiction over the
summons is required not for purposes of physically acquiring defendant?
jurisdiction over his person but simply in pursuance of the A: No. The court cannot acquire jurisdiction over the person
requirements of fair play (Sahagun vs. Court of Appeals, of the defendant because he is not a resident of the
G.R. No. 78328, June 3, 1991). Philippines and is not found in the Philippines.

Be that as it may, failure to send copies of the summons and Q: Is there a way that the court can proceed to hear and
the order of the court by registered mail to the last known decide the foreclosure case?
address correct address of the defendant is a fatal defect in A: Yes. A foreclosure sale is an action quasi in rem. In this
the service of summons as to annul the proceedings kind of action, jurisdiction over the person of the defendant is
(Castillo vs. CFI of Bulacan, 127 SCRA 633; Sahagun vs. not required. In this situation, extraterritorial service of
Court of Appeals, supra). summons under Section 17, Rule 14 of the Amended Rules
may be effected for the court to acquire jurisdiction over the
d) In any other manner the court may deem sufficient. res, not necessarily over the person of the defendant. And,
if, for instance summons has been served by publication
 In a few cases, service of summons by registered mail strictly in accordance with Section 17, Rule 14 of the
on nonresident defendant who is not found in the Amended Rules, then the court can proceed to hear the
Philippines was considered valid (Valmonte vs. case.
Santos & CA, 252 SCRA 92; Midgely vs. Ferrandos,
64 SCRA 23). Q: May the court validly render a judgment in the
foreclosure proceedings?
Where the court grants leave to the plaintiff to effect A: Yes. On the premise that the court had already acquired
extraterritorial service of summons through any of the modes jurisdiction over the res and as long summons by publication
allowed under Section 17, Rule 14 of the Amended Rules, was validly effected, strictly in accordance with Section 17,
the court shall give the defendant reasonable time, which Rule 14 of the Amended Rules, the court can proceed to
shall not be less than sixty (60) calendar days after notice, render judgment in the case.
within which to file his answer to the complaint.
Q: Suppose the proceed of the foreclosure sale is not
Example # 1: enough to pay the outstanding loan of the defendant
Maria Ozawa, a Japanese-Canadian, came to visit the plus interests, can the plaintiff proceed to ask the court
Philippines. While sojourning as a tourist in the Philippines, for deficiency judgment?
she met and got enamored with the dashing debonair Waldi A: No. Deficiency judgment partakes of the nature of action
Bigotilyo, a Filipino citizen. Sooner than expected, the two in personam. Considering that the defendant who is not a
tied the knot in marriage, but shortly after their marriage, resident of the Philippines and who is not residing herein had
Maria Ozawa deserted Waldi. She returned to her Canada not been personally served with summons, then no personal
and her whereabouts were not known. Can Waldi file a case judgment for deficiency can be entered against him (see
before the appropriate Philippine court against Maria Ozawa Banco Espanol Filipino vs. Palanca, 37 Phil. 930).
for declaration of nullity of marriage under Article 36 of the
Family Court, when she is not a resident of the Philippines Q: Suppose the defendant rather voluntarily appeared in
and is not found in the Philippines? the foreclosure proceedings and submitted to
jurisdiction of the court, can the court proceed to
A: Yes, he can. The action involves the personal status of likewise award the deficiency judgment if found to be
the plaintiff. The res is the status of the marriage of plaintiff warranted?
and res happens to be in the Philippines. The case can be A: Yes, because the action has become a suit in personam
filed in the proper court where Waldi resides. The court may (Villareal vs Court of Appeals, G.R. No. 107314,
validly acquire jurisdiction over the res through extraterritorial September 17, 1998).
service of summons under Section 17, Rule 14 of the
Amended Rules. Example # 3:
Q: Suppose, in the above problem, the obligation of the
Example # 2: defendant was not secured by real estate mortgage, and you
Suppose your Filipino friend, who has long been filed the action for collection of sum of money only after the
permanently residing in Wuhan, China, came to visit the

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defendant had already returned to Wuhan, China, can the Under the foregoing rule, and given that the defendant, in
court acquire jurisdiction over the person of defendant? this situation, is a resident of the Philippines but who is just
A: No because the defendant cannot anymore be personally temporarily out of the country, then summons may be served
served with summons in the Philippines. on him through any of the following alternative modes:

Q: May the court acquire jurisdiction over the person of 1. By personal service of summons on the defendant
the defendant as by effecting extraterritorial service of himself or herself, in the Philippines, pursuant to
summons pursuant to Section 17, Rule 14 of the Section 5, Rule 14 of the Amended Rules of Court; or
Amended Rules?
A: No. The action for simple collection of sum of money is an This is possible, and it may be done, if the defendant to
action in personam. The rule is well-settled that happens to be here in the Philippines during the service
extraterritorial service of summons may not lie in an action in of summons.
personam against the defendant who does not reside and is 2. Through substituted service of summons, pursuant to
not found in the Philippines (Kawasaki Port Service Section 6, Rule 14 of the Amended Rules of Court; or
Corporation vs. Amores, 199 SCRA 230)
That substituted service of summons may lie against a
Q: So, is there a way by which the court can proceed to defendant who ordinarily resides in the Philippines, but
hear and decide the collection case? who is temporarily out of the country is settled in the
A: An action for collection for sum of money is an action in case of Montalban vs. Maximo, 22 SCRA 1070,
personam and, as, such, it is required that the court should
acquire jurisdiction over the person of the defendant. 3. Through extraterritorial service of summons, in
Inasmuch, however, as the defendant could not be served consonance with Section 17, Rule 14 of the Amended
with summons in the Philippines, the remedy of the plaintiff Rules of Court which includes, but is not limited, to
is look for and attach the properties of the defendant in the service of summons by publication or personal service
Philippines, pursuant to Rule 57 of the Rules of Court. If this outside the Philippines, upon leave of court (Asiavest
is done, the action becomes an action quasi in rem, so Limited vs. Court of Appeals, G.R. No. 128803,
extraterritorial service of summons may now be effected September 25, 1998).
pursuant to Section 17, Rule 14 of the Amended Rules, for
the court to validly acquire jurisdiction over the res, and not  Where service of summons against the defendant is
necessarily over the defendant. Thereafter, the court can effected though summons by publication, with leave of
proceed to hear and decide the case (Philippine court, the court shall give the defendant a reasonable
Commercial International Bank vs. Alejandro, 533 SCRA time, which shall not be less than sixty (60) calendar
738). days from notice, within which to file his or her answer.

Prescinding from the foregoing discussions, it can be said  Again, in summons by publication, there is an added
that summons by publication under Section 17, Rule 14 of requirement that copies of the summons and the order
the Amended Rules may only lie as against a nonresident of the court allowing summons by publication shall be
defendant and who is not found in the Philippines if the sent by registered mail to the last known address of the
action filed against him is an action in rem or quasi in rem. defendant.
Stated differently, summons by publication will not lie as
against a nonresident defendant and who is not found in the Montefalcon v. Vasquez, June 17, 2008
Philippines if the action filed against him is an action in If the defendant is temporarily out of the Philippines,
personam; hence, the general proposition that summons by substituted service may be availed of.
publication is not available as a means of acquiring
jurisdiction over the person of the defendant in action in
Mangila v. CA, Aug 12, 2002
personam.
Where the defendant is a resident of the Philippines but who
is temporarily out of the country service of summons by
publication is also proper.
Section 18. Residents temporarily out of the Philippines.
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is
Section 19. Leave of court.
temporarily out of it, service may, by leave of court, be also
Any application to the court under this Rule for leave to
effected out of the Philippines, as under the preceding
effect service in any manner for which leave of court is
Section.
necessary shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf, setting
Unlike in the preceding Section 17, Rule 14 of the Amended
forth the grounds for the application.
Rules, here, or under Section 18, Rule 14 of the Amended
Rules, the action is brought against a defendant who
The foregoing provision is self-explanatory.
ordinarily resides in the Philippines, but who is temporarily
out of the country during the filing of the case – i.e. The
The following provisions under Rule 14 of the Amended
defendant is actually a permanent resident of the
Philippines, but who is just out of the country on vacation, or, Rules of Court expressly mention and require LEAVE OF
COURT in respect to service of summons:
perhaps, working as an OFW.

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1. Paragraph 2, Section 14, Rule 14 of the Amended order authorizing summons by publication, to which
Rules of Court, with respect to service of summons on affidavit copies of the publication shall be attached; and
a foreign juridical entity not registered in the Philippines,
or has no agent therein but transacted or doing 2) Another affidavit showing the deposit of a copy of the
business in the Philippines; summons and order for publication in the post office,
postage prepaid, directed to the defendant by
2. Section 16, Rule 14 of the Amended Rules of Court, registered mail to his or her last known address.
with respect to service of summons on a defendant
whose identity or whereabouts are unknown;
Section 23. Voluntary appearance.
3. Section 17, Rule 14 of the Amended Rules of Court, The defendant's voluntary appearance in the action shall be
with respect to extraterritorial service of summons; and equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction
4. Section 18, Rule 14 of the Amended Rules of Court, over the person of the defendant shall be deemed a
with respect to service of summons on residents who voluntary appearance.
are temporarily out of the Philippines.
Voluntary appearance does not necessarily refer to the
In the above-mentioned circumstances, strict adherence to physical appearance of the accused in court it involves filing
the requirements under Section 19, Rule 14 of the Amended of motions or pleadings to seek remedy/relief from the court.
Rules of Court is required – that is, the filing of a written
motion, supported by the affidavit of the plaintiff or some Example: motion to file extension of time to file answer;
person acting on his or her behalf. motion for reconsideration and etc.

Q: What instance is that if the party will file a pleading

Section 20. Return and such filing of the pleading will not result to
 REFER TO CODAL voluntary appearance?
A: When he alleged in his answer the affirmative defense of
lack of jurisdiction over the defendant, either lack of
Section 21. Proof of Service summons or improper service of summons.
 REFER TO CODAL
However in the 2nd paragraph in Sec.23 states that:
The foregoing provisions are self-explanatory.
“ x x x The inclusion in a motion to dismiss of
Be noted though that the things mentioned under items (2) other grounds aside from lack of jurisdiction over
and (3) of Section 19, Rule 14 of the Amended Rules of the person of the defendant shall be deemed a
Court, pertain to the manner of effecting substituted service voluntary appearance.”
of summons under Section 6, Rule 14 of the Amended
Rules. If one is to follow this provision, if the defendant would like to
question the jurisdiction over his person he has to file a
It is also relevant to stress that the Return filed by the sheriff Motion to Dismiss on the ground of lack of jurisdiction over
or process server, whose duties include service of summons his person on such ground alone. If he will include other
and other court processes, is prima facie evidence of the grounds, the inclusion of other grounds for the dismissal of
facts stated therein, and said officer enjoys the presumption the case will be considered as a voluntary appearance or as
that he has regularly performed his duty. Hence, to a waiver to question the jurisdiction of the court over his
overcome the presumption arising from the Sheriff’s return, person.
the evidence must be clear and convincing (Orosa vs.
Court of Appeals, 261 SCRA 376). However, under the Amended Rules, under the Amended
Rules, lack of jurisdiction over person of the defendant
should only be pleaded in the answer by way of a special
affirmative defense, pursuant to Section 12, Rule 8 of the
Section 22. Proof of service by publication.
Amended Rules:
If the service has been made by publication, service may be
proved by the affidavit of the publisher, editor, business or
Section 12. Affirmative defenses.
advertising manager, to which affidavit a copy of the
(a) A defendant shall raise his or her affirmative
publication shall be attached and by an affidavit showing the
defenses in his or her answer, which shall be
deposit of a copy of the summons and order for publication
limited to the reasons set forth under Section 5(b),
in the post office, postage prepaid, directed to the defendant
Rule 6, and the following grounds:
by registered mail to his or her last known address.
1) That the court has no jurisdiction over
Where service of summons is done by publication, two (2) the person of the defending party;
affidavits are thus required:
1) The affidavit of either the publisher, or editor, or
business or advertising manager of the newspaper
company which published the summons and the court

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Further, under the Amended Rules, there are only four (4) Section 2. Motions must be in writing.
grounds for filing a motion to dismiss, and lack of jurisdiction All motions shall be in writing except those made in open
over the defendant is not one of them. Section 12, Rule 15 court or in the course of a hearing or trial.
of the Amended Rules is instructive on this, when it provides,
in part: A motion made in open court or in the course of a hearing or
trial should immediately be resolved in open court, after the
Section. 12. Prohibited motions. adverse party is given the opportunity to argue his or her
The following motions shall not be allowed: opposition thereto.

(a) Motion to dismiss except on the following When a motion is based on facts not appearing on record,
grounds: the court may hear the matter on affidavits or depositions
1) That the court has no jurisdiction over presented by the respective parties, but the court may direct
the subject matter of the claim; that the matter be heard wholly or partly on oral testimony or
2) That there is another action pending depositions.
between the same parties for the same
cause; and Motion – Is an application for relief other than by a pleading
3) That the cause of action is barred by a – that is, other than any of the pleadings mentioned under
prior judgment or by the statute of Section 2, Rule 6 of the Amended Rules, such as:
limitations;  complaint,
 answer,
(b) Motion to hear affirmative defenses  counterclaim,
 cross-claim,
To reconcile: You can raise it as an affirmative defense in  third (fourth, etc.)-party complaint, or
the answer. Can you include other grounds when sec.23  complaint-in-interventions; or
states otherwise resulting to voluntary appearance?  reply, or
 rejoinder, as thus mentioned in Section 10, Rule 6
Yes, you can include it because Sec.23 only mentions of of the Amended Rules.
motion and did not mention answer. Hence, assuming that
MTD is allowed, you should not include other grounds in Pleading – refers to a written statement of the parties claim
filing such. or defenses which is submitted to the court for adjudication.

There is a case before prior amendment na ni file syag MTD  A motion is the legal term for “REQUEST”
due to alck of juri over the person of the defendant. During  Common motions filed are Motion to dismiss, Motion for
the hearing of the motion, under rule 16 (old), the court did Extension of time, Motion for Bill of particulars
not dismiss the case, instead ordered the issuance of alias
summons and have it served properly upon the defendant. 2 Kinds of Motions:
1. Written motions
Q: Is the court correct is issuing such? - State the relief and the grounds upon which it is
A: SC said the trial court was correct. The case should not prove.
be dismissed simply bec the original summons was
wrongfully serves. It is difficult to conceive, for example, that 2. Oral motions
when the defendant personally appears before a court - Made in open court in the course of hearing or
complaining that he has not been validly summoned that the trial.
filed against him should be dismissed, an alias summons - This should be immediately resolved by the court
could be served on the defendant. (Phil American life vs. after the adverse party is given the opportunity to
Priva, Nov 11, 2004) argue his opposition to such motion.

Judge D: This is reasonable bec. SOS is not served by the General rule: Motions shall be in writing,
plaintiff, but the sheriif or process server. So if dli ma serve
ug tarung na dli sala sa plaintiff nya e dismiss lang due to Except: Those made in open court or in the course of a
the improper service, it is fair and just that if ever there is hearing or trial.
improper SOS the court may order that the summons may
be properly served. Where the motion is in writing (written motion), and where
applicable, it must comply with the requirements, under the
New: the summons shall remain enforce and valid until it is following:
validly served. 1. Contents and supporting documents, Sec.3, R15
2. Proof of service to the opposing party, Sec. 7, R15
3. Omnibus Motion Rule, if the motion is geared ta
RULE 15 attacking a pleading, order, judgment, or
MOTIONS proceeding, Sec.9, R15
4. Requiring the attachment to the motion of the
pleading or another motion sought to be allowed
Section 1. Motion defined.
admission by the court, if such is the trust of the
A motion is an application for relief other than by a pleading.
motion, Sec.10, R15

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5. Form of the motion, Sec.11, R15 Section 4. Non-litigious motions.

6. Payment of the required fee, if such be a motion Motions which the court may act upon without prejudicing
for postponement, Sec. 12, R15. the rights of adverse parties are non-litigious motions. These
motions include:
Where the motion is done verbally (oral motion), as when it
is made in open court or in the course of a hearing or trial, a) Motion for the issuance of an alias summons;
such oral motion must be resolved by the court immediately, b) Motion for extension to file answer;
after the adverse party is given the opportunity to argue his c) Motion for postponement;
or her opposition thereto. d) Motion for the issuance of a writ of execution;
It is submitted though that the foregoing rule that oral e) Motion for the issuance of an alias writ of execution;
motions must be resolved immediately applies only to simple f) Motion for the issuance of a writ of possession;
oral motions – like, motions for postponement, or motion for g) Motion for the issuance of an order directing the sheriff
exclusion of other witnesses during cross-examinations, or to execute the final certificate of sale; and
motion for issuance of an alias summons, etc. – or where the h) Other similar motions.
resolution of such oral motions does not involve extraneous
facts or intricate/difficult legal provisions. These motions shall not be set for hearing and shall be
resolved by the court within five (5) calendar days from
That an oral motion need not be resolved immediately receipt thereof.
where its resolution involves extraneous facts or facts
not evident in the records of the case is buttressed by the  Read discussion in Atty. Galleon’s Transcript.
provision under the third paragraph of Section 2, Rule 15 of
the Amended Rules which, provides that “(w)hen a motion is
Section 5. Litigious motions.
based on facts not appearing on record, the court may hear
the matter on affidavits or deposition presented by the
(a) Litigious motions include:
respective parties, but the court may direct that the matter be
heard wholly or partly on oral testimony or depositions.
1) Motion for bill of particulars;
2) Motion to dismiss;
Similarly, if an oral motion is made in open court but the
3) Motion for new trial;
resolution of which calls for the application of intricate or
4) Motion for reconsideration;
difficult legal provisions, the court, with the end in view
5) Motion for execution pending appeal;
handing down an informed resolution on the matter, may just
6) Motion to amend after a responsive pleading has been
require the movant to reduce his motion in writing and for the
filed;
opposing party to file his or her written comment or
7) Motion to cancel statutory lien;
opposition thereto. After all, haste is not a substitute for
8) Motion for an order to break in or for a writ of
justice.
demolition;
9) Motion for intervention;
Section 3. Contents. 10) Motion for judgment on the pleadings;
A motion shall state the relief sought to be obtained and the 11) Motion for summary judgment;
grounds upon which it is based, and if required by these 12) Demurrer to evidence;
Rules or necessary to prove facts alleged therein, shall be 13) Motion to declare defendant in default; and
accompanied by supporting affidavits and other papers. 14) Other similar motions.

Before, a motion should be set for hearing and it is (b) All motions shall be served by personal service,
necessary that the motion must contain a notice for hearing accredited private courier or registered mail, or electronic
addressed to the adverse counsel. The rule before was that means so as to ensure their receipt by the other party.
if a motion does not contain a notice of hearing and it is not
set for hearing it is considered to be a mere scrap of paper. (c) The opposing party shall file his or her opposition to a
The motion shall be denied. litigious motion within five (5) calendar days from receipt
thereof. No other submissions shall be considered by the
Now, there is no need for such notice of hearing because court in the resolution of the motion.
setting the hearing is discretionary on the part of the court.
The motion shall be resolved by the court within fifteen (15)
Relate this to our preceding discussions. Again, where the calendar days from its receipt of the opposition thereto, or
resolution of a motion calls for extraneous facts, such facts upon expiration of the period to file such opposition. (n)
shall be established by evidence through the submission of
affidavits and other papers, among others. Where the motion Litigious Motion – this is a kind of motion that asks for relief
is in writing and it alleges facts which are not evident in the that if granted by the court it would PREJUDICE the other
case records, then such motion shall, as much as possible, party vice-versa that if it will not affect the party it is a non-
be accompanied already by supporting affidavits and other litigious motion.
documents tending to establish such extraneous facts as,
thus, averred in the motion. Motion for Bill of Particulars – in actual this can be denied
outright by the court under Sec.2 Rule 12 if the court finds
the same without merit.
Opposition – within 5 calendar days from receipt thereof.

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Sight should not be lost of the fact that other than the
Resolution by the court – within 15 calendar days from the opposition to the litigated motion, no other submissions shall
receipt of the opposition. be allowed; hence, the movant cannot file a rejoinder to the
opposition filed by the opposing party, if one was filed.
Thereafter, the court shall resolve such litigated motion
Section. 6. Notice of hearing on litigious motions; within fifteen (15) calendar days from its receipt of the
discretionary. opposition thereto, if one was filed, or upon expiration of the
The court may, in the exercise of its discretion, and if period to file such opposition.
deemed necessary for its resolution, call a hearing on the
motion. The notice of hearing shall be addressed to all
parties concerned, and shall specify the time and date of the Section 9. Omnibus motion.
hearing. Subject to the provisions of Section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or proceeding shall
include all objections then available, and all objections not so
Section 7. Proof of service necessary. included shall be deemed waived.
No written motion shall be acted upon by the court without
proof of service thereof, pursuant to Section 5(b) hereof. Example:
A motion to dismiss filed by the defendant. The motion is
 Serve first to the adverse party before filing. attacking the complaint. Under the Omnibus Motion rule, all
grounds available must be included in the motion because
those ground which are not included in the motion shall be
Section 8. Motion day.
waived except those grounds that could not be waived i.e.,
Except for motions requiring immediate action, where the
issue on jurisdiction.
court decides to conduct hearing on a litigious motion, the
same shall be set on a Friday.
A Motion for Reconsideration which is a motion attacking the
decision of the court. All grounds that could be basis for the
From the tenor of paragraph (b) of Section 5, Rule 15 of the reconsideration should be stated in the motion otherwise the
Amended Rules, litigious motions should be put in writing, same shall be considered waived.
and, as provided therein, and in conjunction with Section 7,
Rule 15 of the Amended Rules, copies whereof shall be  Read discussion in Atty. Galleon’s Transcript.
furnished to the opposing party or parties; otherwise, the
said motions will not be acted upon by the court.
Section 11. Form.
The Rules applicable to pleadings shall apply to written
It bears to emphasize that, unlike in the 1997 Rules of Civil
motions so far as concerns caption, designation, signature,
Procedure, the movant in a litigious motion is NO LONGER
and other matters of form.
REQUIRED to set his motion for hearing or request that it be
heard. Such requirement is now dispensed with, as, under
Section 6, Rule 15 of the Amended Rules, it is now Section. 12. Prohibited motions.
discretionary on the part of the court to set such litigious The following motions shall not be allowed:
motion for hearing. In other words, the court may or may not
set the motion for hearing. (a) Motion to dismiss except on the following grounds:

Where the court, in the exercise of its discretion, deems it 1) That the court has no jurisdiction over the subject
prudent to set the litigious motion for hearing, such hearing matter of the claim;
shall be calendared on a Friday – which is considered a 2) That there is another action pending between the same
motion day – and, towards that end, it shall send notices to parties for the same cause; and
the parties, informing them of the time and date of the 3) That the cause of action is barred by a prior judgment
hearing of the litigation motion. or by the statute of limitations;

It bears to stress, however, that whether or not the court set (b) Motion to hear affirmative defenses;
the litigious motion for hearing, and without need of any
directive from the court, it behooves the opposing party (the (c) Motion for reconsideration of the court’s action on the
one against whom the litigated motion has been filed) to file affirmative defenses;
his or her opposition to the litigated motion. And he or she
has to file such opposition within five (5) calendar days from (d) Motion to suspend proceedings without a temporary
receipt of a copy of the litigated motion. restraining order or injunction issued by a higher court;

The opposing party does not have to wait, and he could not (e) Motion for extension of time to file pleadings, affidavits
expect, that the court will issue an order directing him to file or any other papers, except a motion for extension to
his or her opposition to the litigated motion. If he or she does file an answer as provided by Section 11, Rule 11; and
not file any opposition within five (5) days from his or her
receipt of the litigated motion, then he is deemed to have (f) Motion for postponement intended for delay, except if it
waived the filing of any such purported litigation. is based on acts of God, force majeure or physical
inability of the witness to appear and testify. If the

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motion is granted based on such exceptions, the – such dismissal, if proper, is NOT A BAR to another action
moving party shall be warned that the presentation of when the circumstances change and would warrant the
its evidence must still be terminated on the dates refiling and prosecution of the same
previously agreed upon.
Judge D: It would be advisable to raise in the answer the
A motion for postponement, whether written or oral, shall, at affirmative defenses even such defenses can be a subject/
all times, be accompanied by the original official receipt from raised in a motion to dismiss. Do you want to know the
the office of the clerk of court evidencing payment of the advantages?
postponement fee under Section 21(b), Rule 141, to be
submitted either at the time of the filing of said motion or not 1. If you file a motion to dismiss (MTD), take note this is
later than the next hearing date. The clerk of court shall not not a responsive pleading, e.g. res judicata or lack of
accept the motion unless accompanied by the original jurisdiction over the subject matter. What is the effect?
receipt. (n)
You cannot raise counterclaim, so if the case is
Motion to Dismiss – the grounds mentioned are not dismissed based on such ground, you cannot claim
exclusive. Other grounds: counter-claim.
a) Defective certification against forum shopping
b) Non-referral to the Katarungan Pambarangay, However, if you file an answer and the ground is a res
almost all civil cases are required to go under this judicata is raise as an affirmative defense, and you file
as required in the Local Government Code. a counter-claim that you suffered sleepless nights and
c) Failure to pay Docket Fees, although the court constraint to hire a lawyer. You can raise that in the
may grant time for filing such fees. answer, not in the Motion to Dismiss. So ma dismiss na
pro wa kay counter-claim sa motion to dismiss.
 Read discussion in Atty. Galleon’s Transcript.
2. When you file a MTD, considering it is not a responsive
Section. 13. Dismissal with prejudice. pleading, amendment of the pleading is still a matter or
Subject to the right of appeal, an order granting a motion to right. Whereas, if you file an answer with affirmative
dismiss or an affirmative defense that the cause of action is defenses, amendment will no longer be a matter of right
barred by a prior judgment or by the statute of limitations; but a matter a discretion of the part of the court.
that the claim or demand set forth in the plaintiff’s pleading
has been paid, waived, abandoned or otherwise
extinguished; or that the claim on which the action is RULE 16
founded is unenforceable under the provisions of the statute MOTION TO DISMISS – DELETED
of frauds, shall bar the refiling of the same action or claim.
(5, R16)
RULE 17
If the motion to dismiss or affirmative defense is granted and
DISMISSAL OF ACTIONS
the ground for the dismissal of the pending/present case or
claim is that the claim is:
1) barred by a prior judgment or Section 1. Dismissal upon NOTICE by plaintiff.
2) barred by the statute of limitations; or A complaint may be dismissed by the plaintiff by filing a
3) that the claim or demand set forth in the plaintiff’s notice of dismissal at any time before service of the answer
pleading has been paid, waived, abandoned or or of a motion for summary judgment. Upon such notice
otherwise extinguished; or being filed, the court shall issue an order confirming the
4) that the claim on which the action is founded is dismissal. Unless otherwise stated in the notice, the
unenforceable under the provisions of the statute dismissal is without prejudice, except that a notice operates
of frauds, as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action
Then such order of dismissal (being with prejudice) shall based on or including the same claim.
be subject to appeal. But once the said order of dismissal is
affirmed on appeal with finality, then the case or claim “TWO DISMISSAL RULE”
CANNOT ANYMORE BE REFILED.
Before the filing of the answer or a motion for summary
However, if based on these other grounds being, but not judgment, the plaintiff has the right to dismiss the case by
limited to, mere filing of a notice to the court. The court cannot deny.
The court has merely to affirm. He can still re-file the case
(1) the venue is improperly laid; or because the dismiss is WITHOUT PREJUDICE.
(2) plaintiff has no legal capacity to sue; or
(3) that the complaint states no cause of action; or But if it is the second time already that the plaintiff files such
(4) that a condition precedent for filing the suit has not notice of dismissal, the dismissal now would be considered
been complied with; or as dismissal on the merits. The first dismissal is without
(5) litis pendentia prejudice, but the second time it is done, the same would be
considered as dismissal on the merits or dismissal with

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prejudice, which cannot be re-filed. This is what is we call as Respondents argue that the Motion to Dismiss they filed
TWO DISMISSAL RULE. precedes the Notice of Dismissal filed by petitioner and
hence, the trial court correctly gave it precedence and ruled
 In order for the Two-Dismissal Rule to apply, it is based on the motion.
necessary that in the first dismissal the court must have
jurisdiction over the subject matter and it is the plaintiff SC: This argument is erroneous. Section 1 of Rule 17 does
who caused the dismissal. not encompass a Motion to Dismiss. The provision
“TWO-DISMISSAL RULE” REQUIREMENTS specifically provides that a plaintiff may file a notice of
a) The plaintiff has twice dismissed the complaint or dismissal before service of the answer or a motion for
actions; and summary judgment. Thus, upon the filing of the Notice of
b) Based on or including the same claim; and Dismissal by the plaintiff, the Motion to Dismiss filed by
c) The complaints must have been dismissed in a court of respondents became moot and academic and the trial court
competent jurisdiction. should have dismissed the case without prejudice based on
the Notice of Dismissal filed by the petitioner.
Example:
P files a collection case against D then D begged P that he Moreover, to allow the case to be dismissed with prejudice
will pay within one month. Then P agreed to dismiss the would erroneously result in res judicata and imply that
case. So, how to dismiss the case? By mere filing of notice, petitioner can no longer file a case against respondents
not a motion and the court have no option but to affirm the without giving him a chance to present evidence to prove
dismissal without prejudice. However, after one month D otherwise. If the plaintiff has filed a notice of dismissal but
was still not able to pay P. Can the case be refiled? before the court issued an order confirming the dismissal or
even if it has issued one but not yet final, the plaintiff need
Yes. But when P filed again the case, D begged P that he not file a second complaint. He only needs to revive or set
will pay the debt. So, the case was dismissed. Can it be aside the order of dismissal.
refiled? No. The dismissal now would be on the merits.
Ortigas and Co. vs Velasco,
Example: G. R. No. 109645 July 25, 1994
The plaintiff filed a complaint, however, it was dismissed The dismissal of the case, and the lapse of the reglementary
because the defendant raised it in his affirmative defense period to reconsider or set aside the dismissal, effectively
improper venue. When it was refiled, the plaintiff filed a operated to remove the case from the Court's docket. Even
notice of dismissal before the defendant was able to file his assuming the dismissal to be without prejudice, the case
answer. When it was filed in the proper venue the plaintiff could no longer be reinstated or "revived" by mere motion in
again filed a notice of dismissal which dismissed the case. the original docketed action, but only by the filing of another
When it was filed for the third time, the Defendant now filed a complaint accompanied, of course, by the payment of the
Motion to Dismiss on the ground of res judicata, arguing that corresponding filing fees prescribed by law.
the second dismissal was a dismissal with prejudice?
The situation is not at all altered by the circumstance that the
No, because in order for the two-dismissal rule to apply, the dismissal of the action was effected by the plaintiff as a
first and second dismissal must be acted upon the instance matter of right, without order of the court, in accordance with
of the plaintiff. In the first dismissal it was based in the Rule 17 of the Rules of Court. There having been a
instance of the defendant because he raised it in his dismissal or withdrawal of the action, albeit without
affirmative defense. (Cheng v. Cheng, Oct.8, 2014) prejudice, and the order considering the action withdrawn
having become final, revival of the case could not be done
except through the commencement of a new action, i.e., by
Dael vs. Beltran, the filing of another complaint and the payment of the
G.R. No. 156470 April 30, 2008 concomitant docketing fees.
As to the propriety of dismissal of the complaint with
prejudice, Section 1, Rule 17 of the 1997 Rules of Civil To be sure, a plaintiff who has dismissed his action by notice
Procedure, provides the rule. under this provision may later change his mind and decide to
continue with it. In that event, since theoretically every final
Under this provision, it is mandatory that the trial court issue disposition of an action does not attain finality until after
an order confirming such dismissal and, unless otherwise fifteen (15) days therefrom, and consequently within that
stated in the notice, the dismissal is without prejudice and time the action still remains within the control of the Court,
could be accomplished by the plaintiff through mere notice of the plaintiff may move to withdraw and set aside his notice of
dismissal, and not through motion subject to approval by the dismissal and revive his action, before that period lapses.
court. But after the dismissal has become final through the lapse of
the fifteen-day reglementary period, the only way by which
Dismissal is ipso facto upon notice and without prejudice the action may be resuscitated or "revived," is by the
unless otherwise stated in the notice. The trial court has no institution of a subsequent action through the filing of
choice but to consider the complaint as dismissed, since the another complaint and the payment of the fees prescribed by
plaintiff may opt for such dismissal as a matter of right, law. This is so because upon attainment of finality of the
regardless of the ground. dismissal through the lapse of said reglementary period, the
Court loses jurisdiction and control over it and can no longer

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make any disposition in respect thereof inconsistent with prejudice. A class suit shall not be dismissed or
such dismissal. compromised without the approval of the court

The order of Judge Velasco reviving the reconstitution case Q: In Section 1, there is no yet an answer filed or a motion
was therefore legally inefficacious. It could not and did not for summary judgment. Supposed the defendant has
operate to reinstate the proceeding. And even assuming that already filed an answer, can the plaintiff move to
the amended petition submitted by Molina together with her dismiss the case?
motion to revive the case may be deemed a new petition, the
non-payment of the requisite docketing fees precluded the A: Yes, but it must be in the form of a motion and requires
acquisition of jurisdiction by the Trial Court over the second the approval of the court. Considering that there's already
proceeding. an answer, it could be that the defendant has raised
counterclaim in his answer.
Atty. G:
The general rule is that where the dismissal of the complaint If ever the court grant the motion to dismiss filed by the
is a matter of right, such dismissal of the complaint is plaintiff, then the dismissal should be limited to the complaint
WITHOUT PREJUDICE, such that the complaint can be and the counterclaim of the defendant may prosper either
refiled. But in the following instances, the dismissal of the in another case or in the same action-if the defendant would
complaint is WITH PREJUDICE, thus: manifest that his counterclaim would be prosecuted in the
same action. In other words, the court may grant the motion
1. Where the notice of dismissal filed by the plaintiff states but the counterclaim will prosper.
that the dismissal is with prejudice (Second sentence of
Section 1, Rule 17 of the Amended Rules); or Judge D: If you were the plaintiff and you agreed to dismiss
your case, you also tell the defendant to dismiss his
2. Even if the notice of dismissal states that the dismissal counterclaim. It is better if you make a compromise
is without prejudice, but the ground for filing such notice agreement and you put in writing that you have agreed to
of dismissal is one which prevents the filing of the dismiss the case as well as the counterclaim.
complaint, as when, for example, the ground is (KINAHANGLAN DI MAGBINANGA GYUD !:D)
prescription of action, or extinguishment of the
obligation of the defendant by payment, etc., or where Under this Section, the dismissal may be without prejudice.
the ground for filing a notice of dismissal is res judicata Meaning it can be refiled or dismissal not on the merits.
(see Serrano vs. Cabrera, 93 Phil. 774); or
Inasmuch as Section 2, Rule 17 of the Amended Rules
3. Where the plaintiff has previously dismissed his mentions of “counterclaim” without distinction or
complaint in a court of competent jurisdiction based or qualification, whatsoever, then the counterclaims which may
including the same claim (Second sentence of Section be prosecuted in the very same action, notwithstanding the
1, Rule 17 of the Amended Rules). This is commonly dismissal of the complaint, or that which may be prosecuted
referred to as the “two-dismissal rule.” in a separation action, may either be a compulsory
counterclaim or a permissive counterclaim
Verily, where the prior dismissal of the complaint was by
reason of the motion to dismiss filed by the defendant, the Take note that where the court grants plaintiff’s motion to
second dismissal of the complaint upon the instance of the dismiss his complaint, such dismissal shall be WITHOUT
plaintiff shall be, as a rule, WITHOUT PREJUDICE (Ching PREJUDICE – meaning, plaintiff can still re-file the case –
vs. Cheng, G.R. No. 175507, October 8, 2014). unless otherwise the motion to dismiss prays that the
dismissal be with prejudice, or where court directs that the
Similarly, if the prior dismissal was because the trial court dismissal is with prejudice (Vergara, et al. vs. Ocumen,
has no jurisdiction over the subject matter of the action, the G.R. No. 53971, June 19, 1982).
second dismissal upon the instance of the plaintiff is still
WITHOUT PREJUDICE. “Dismissal on the merits”
It means that it is as if that the case is dismissed because of
the evidence presented or due to insufficiency of evidence
Section 2. Dismissal upon motion of plaintiff. so the case can't be refiled anymore. If it is refiled, the
Except as provided in the preceding section, a complaint defendant can raise res judicata.
shall not be dismissed at the plaintiff's instance save upon
approval of the court and upon such terms and conditions as Lim tek chuan v. Uy, March 11, 2015
the court deems proper. If a counterclaim has been pleaded SC: Dismissal of action is different from a mere dismissal of
by a defendant prior to the service upon him or her of the the complaint for this reason since only the complaint and
plaintiff's motion for dismissal, the dismissal shall be limited not the action is dismissed the defendant inspite of the
to the complaint. The dismissal shall be without prejudice to dismissal may still prosecute his counterclaim in the same
the right of the defendant to prosecute his or her action.
counterclaim in a separate action unless within fifteen (15)
calendar days from notice of the motion he or she manifests  Padilla v. Globe Asiapit Realties Holding Corp.
his or her preference to have his or her counterclaim Aug, 2014
resolved in the same action. Unless otherwise specified in
the order, a dismissal under this paragraph shall be without

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Section 3. Dismissal due to fault of plaintiff.  Note, the case would be dismissed if the plaintiff has
If, for no justifiable cause, the plaintiff fails to appear on the not presented any witness yet and failed to appear
date of the presentation of his or her evidence in chief on the during the Plaintiff’s presentation of evidence. However,
complaint, or to prosecute his or her action for an if the plaintiff has already presented one witness, it
unreasonable length of time, or to comply with these Rules would not be proper for the court to dismiss the case.
or any order of the court, the complaint may be dismissed What should be done by the court if during the
upon motion of the defendant or upon the court's own presentation of the second witness of the plaintiff, he
motion, without prejudice to the right of the defendant to failed to appear?
prosecute his or her counterclaim in the same or in a
separate action. This dismissal shall have the effect of an The court will instead declare that the presentation of
adjudication upon the merits, unless otherwise declared by the evidence for the plaintiff TERMINATED, the case
the court. will not be dismissed.

What about the counterclaim of the defendant? 2) Plaintiff’s failure to prosecute his or her action for
The counterclaim of the defendant may prosper in a an unreasonable length of time;
separate action.
 As to what constitutes an “unreasonable length of time”
General Rule: The court cannot dismiss a case Motu within the purview of the above-quoted provision
Proprio. depends upon the circumstances of each particular
Exception: Under the circumstances in Section 3 Rule 17 case (Montejo vs. Urotia, 40 SCRA 41).
as well as in Section 1 Rule 9.
- Either upon the motion of the defendant or upon  Where the trial, however, had previously been
court’s motion. postponed nine times at the plaintiff’s request and the
case had been pending for more than four (4) years,
Rule 9 Section 1. Defenses and objections not the action may be dismissed upon the court’s own
pleaded. motion for failure to prosecute (Jordas vs. Vedad, 101
Defenses and objections not pleaded either in a SCRA 649).
motion to dismiss or in the answer are deemed
waived. However, when it appears from the  The failure to serve summons on the defendant for four
pleadings or the evidence on record that the court months is a ground for dismissal for failure to prosecute
has no jurisdiction over the subject matter, that (Sunga vs. Lacson, 23 SCRA 393). The plaintiff
there is another action pending between the same cannot simply put the blame on the court. Upon
parties for the same cause, or that the action is issuance of the summons, plaintiff or counsel should
barred by a prior judgment or by statute of see to it that the sheriff or process server immediately
limitations, the court shall dismiss the claim. cause its service. If the plaintiff is not furnished a return
of service, plaintiff should inquire from the court as to
NOTE: The ground of the dismissal is failure of the the status of the summons, not only to take appropriate
defendant to appear. If it is his lawyer who did not appear, action if unserved, but to know if period to answer has
that cannot be aground for dismissal. The court may impose expired (BAC Mfg. vs. Court of Appeals, 200 SCRA
disciplinary action and impose fine against the lawyer for 130). Under the rule, it is the duty of a plaintiff to always
delaying the proceedings. take the initiative in keeping the proceedings active and
going until it is terminated; otherwise, the case may be
The above provision provides for the dismissal of the action dismissed either upon motion of his adversary or of the
for reasons attributable to the plaintiff, such as: court itself (Arellano vs. CFI of Sorsogon, 65 SCRA
46).
1) The plaintiff fails to appear on the date of the
presentation of his or her evidence in chief; 3) Plaintiff’s failure to comply with these Rules;

 Take note that it is plaintiff’s failure to appear on the  Under Section 5, Rule 7 of the Amended Rules, an
date of the presentation of his or her evidence in chief, initiatory pleading must have a certification against
and not the absence of his lawyer, which may warrant forum shopping. So, if the complaint has no such
the dismissal of his case (Calalang vs. Court of certification against forum shopping, the complaint may
Appeals, G.R. No. 103185, January 22, 1993). be dismissed motu proprio by the court for plaintiff’s
failure to comply with the rules (Sto. Domingo-David
 Where, however, plaintiff had already presented his vs. Guerrero, G.R. No. 120965, September 25, 1998).
or her evidence in chief, his and his counsel’s failure
to appear in the subsequent hearings for the Example:
presentation of the evidence for the defendant will NOT The defendant filed a motion for bill of particulars, the court
warrant a dismissal of the case for failure to granted the motion and requires the plaintiff to make
prosecute, as it would only amount to a waiver of particularity in his allegations, but the plaintiff failed to
plaintiff’s right to cross-examine the witnesses for the comply with such order or the court ordered to implead an
defendant and to object to the admissibility of the indispensable party.
evidence for the latter (Jalover vs. Ytoriaga, L-35989,
October 28, 1977).

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The plaintiff failed to comply with the order of the court, the judgment is served on the claimant or, if there is none,
consequence for failure to comply such order is that the case before the introduction of evidence at the trial or hearing.
would be dismissed. If the order does not specifically
mention that the dismissal is without prejudice, the  counterclaim,
presumption is dismissal with prejudice.  cross-claim, or
 third-party complaint.

4) Plaintiff’s failure to comply with any order of the RULE 18

court.
PRE-TRIAL
 Plaintiff’s failure to submit a bill of particulars, when
directed by the court, is a ground for dismissal of the Section 1. When conducted.
action. After the last responsive pleading has been served and filed,
the branch clerk of court shall issue, within five (5) calendar
 Failure to comply with an order to include indispensable days from filing, a notice of pre-trial which shall be set not
parties is a ground for dismissal (Garchitorena vs. De later than sixty (60) calendar days from the filing of the last
los Santos, 55 SCRA 493). Recall, however, that responsive pleading.
failure to comply with the order to include or implead a
necessary party is not a ground for dismissal of the PRE-TRIAL
case. At best, such failure to comply with that order only
amounts to a waiver of the claim against such Is a procedural device by which the court can compel the
necessary party (Section 9, Rule 3 of the Rules of parties and their respective lawyers to appear before it and
Court). take up the matters enumerated under Section 2, Rule 18 of
the Amended Rules, more importantly the possibility of
 The order of the court must, however, be valid. Verily, arriving at an amicable settlement, and, where no settlement
where, upon the death of the defendant, the court is reached by the parties, then to simplify and narrow down
ordered the plaintiff to amend his complaint contrary to the issues in the case, among others.
now Section 16, Rule 3 of the Rules which just directs
that the heirs of defendant be substituted in lieu of the It is meant to serve, inter alia, as a device to clarify and
defendant, non-compliance with that order which is null narrow down the basic issues between the parties, to
and void would not warrant a dismissal of the case ascertain the facts relative to those issues and to enable the
(Gojo vs. Golaya, L-26768, October 30, 1970). parties to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent said trials from
REMEMBER: being carried on in the dark (Fortune Corporation vs.
 The dismissal of the complaint under Section 3, Rule 17 Court of Appeals, G.R. No. 108191, January 14, 1994).
of the Amended rules is generally WITH PREJUDICE,
or it shall have the effect of an adjudication upon the One of the objectives of pre-trial procedure is to take the trial
merits, unless otherwise declared by the court. of cases out of the realm of surprise and maneuvering
(Permanent Concrete Products, Inc. vs. Teodoro, 26
 Conversely, dismissal of actions under Section 3, Rule SCRA 332)
17 of the Amended Rules which do not expressly state
whether they are with or without prejudice are held to  It is now incumbent upon the branch clerk of court,
be with prejudice or on the merits (Vallangca vs. Court within five (5) calendar days from the filing of the last
of Appeals, G.R. No. 55336, May 4, 1989). pleading, if any, to calendar the case for pre-trial; and

Mention should be made, however, that while under Section  Issue notices of such pre-trial which shall be held not
3, Rule 17 of the Amended Rules provides that the dismissal later than sixty (60) calendar days from the filing of the
of the case shall have the effect of an adjudication on the last pleading.
merits, said rule does not apply in situations where the court,
in the first place, has not acquired jurisdiction over the Last responsive pleading
defendant.  It depends. If the plaintiff did not file a reply the last
responsive pleading could be the answer.
Section 4. Dismissal of counterclaim, cross-claim, or  If the plaintiff has filed a reply but the defendant did not
third-party complaint. file a rejoinder, then the last responsive pleading is the
The provisions of this Rule shall apply to the dismissal of any reply.
counterclaim, cross-claim, or third-party complaint. A  If the defendant file a rejoinder then that is the last
voluntary dismissal by the claimant by notice as in Section 1 responsive pleading.
of this Rule, shall be made before a responsive pleading or a
motion for summary judgment is served or, if there is none, Bpi vs. Genuino
before the introduction of evidence at the trial or hearing. G.R. No. 208792 July 22, 2015
The clerk of court forgot to set the pre-trial. The court
The following may also be dismissed by the claimant as a dismissed the case because the plaintiff did not also file a
matter of right and just by his filing of a notice of dismissal at motion to set the case for pre-trial.
any time before an answer or a motion for summary

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The bank submits that with the issuance of A.M. No. 03-1- Section. 2. Nature and Purpose.
09-SC, "it is no longer proper to dismiss a case for failure to The pre-trial is mandatory and should be terminated
prosecute starting August 16, 2004 due to the non-filing by promptly. The court shall consider:
the plaintiff of a Motion to Set Case for Pre Trial Conference
but instead the Clerk of Court should issue an Order setting x x x REFER TO CODAL
the case for Pre Trial Conference.”
The failure without just cause of a party and counsel to
Issue: Whether the trial court acted with grave abuse of appear during pre-trial, despite notice, shall result in a waiver
discretion in dismissing the case without prejudice on the of any objections to the faithfulness of the reproductions
ground of failure to prosecute when Bank of the Philippine marked, or their genuineness and due execution.
Islands failed to file a motion to set case for pre-trial
conference. The failure without just cause of a party and/or counsel to
bring the evidence required shall be deemed a waiver of the
SC: Despite the issuance of the Admin Matter, it is still the presentation of such evidence.
duty of the plaintiff to promptly move to set his case for trial
after the last pleading has been filed and served. The branch clerk of court shall prepare the minutes of the
pre-trial, which shall have the following format: (See
The reading AM NO.03-1-09-SC together with Rule 17, prescribed form) (2a)
Sec.3 and Rule 18, Sec.1 of the Rules of Court
accommodates the outright dismissal of a complaint Suppose the court forgot to set the case for pre-trial and
upon plaintiff’s failure to show justifiable reason for not immediately set the case for pre-trial, the counsels did
setting the cases for per-trial within the period provided not call the attention of the court. Would it be
by the rules. jurisdictional defect?

Nowhere in the text of A.M. No. 03-1-09-SC does it remove No case yet, but according to judge it will not be considered
the plaintiff's duty under Rule 18, Section 1 of the Rules of as a jurisdictional defect, meaning it will not make the entire
Court to set the case for pre-trial after the last pleading has proceedings void. Maybe the court or the judge will have
been served and filed. Nowhere does it repeal Rule 17, administrative liability. Although pre-trial is mandatory in civil
Section 3 of the Rules of Court that allows dismissals due to cases.
plaintiff's fault, including plaintiff's failure to comply with the
Rules for no justifiable cause. Nowhere does it impose a ► Possibility of an amicable settlement:
sole burden on the trial court to set the case for pre-trial.
One of the objectives of pre-trial is to explore the possibility
NOTE: A.M. No. 03-1-09-SC has been adopted in this New of an amicable settlement. But even where the parties
Amendment of the Rules and amended Sec.1 of Rule 18. manifest to the court that they cannot or are not willing to
However, even if it is now the Clerk of Court who should set settle the case amicably, the judge cannot just terminate the
the case for Pre-trial, it is still the work of the plaintiff to see pre-trial. After all, there are still other things that need to be
to it that the case has been set for pre-trial even if the rules done and performed during pre-trial, such as, but not limited,
orders the clerk of court to set the case for pre-trial. to simplification of issues, and obtaining admissions or
stipulations of facts, etc. (A.M. No. 03-1-09-SC, July 13,
Under the afore-quoted provision, pre-trial shall be had after 2004).
the filing of the last pleading. Relevantly, under Section 10,
Rule 18 of the Amended Rules, the last pleading that may be ► Possibility of submitting the matter to alternative
filed in a case is the rejoinder which the defendant may file in modes of dispute resolution:
the event that the plaintiff filed a reply, attaching thereto an
actionable document. But when the rule says that pre-trial During pre-trial, the court and the parties may also consider
shall be had after the last pleading has been filed and the possibility of submitting the matter to alternative modes
served, what it actually meant is that the pre-trial shall be set of dispute resolution, such as, but not limited to, voluntary
and conducted after the lapse of the reglementary period for arbitration.
filing the last responsive pleading, as long as there is already
an answer, for it is possible that parties may not file a reply ► Simplification of Issues/Possibility of obtaining
or rejoinder, as the case may be, and the proceedings stipulations or admissions facts and documents:
should not be held hostage by their failure so to file a reply
or rejoinder (see Sarmiento vs. Juan, 120 SCRA 403). Again, one of the purposes of pre-trial is to clarify and
narrow down the basic issues between the parties, to
While reply or rejoinder may not be necessary for pre-trial to ascertain the facts relative to those issues and to enable the
be had, as the parties may choose not submit such parties to obtain the fullest possible knowledge of the issues
pleadings, it is, however, required that the defendant shall and facts before civil trials and thus prevent said trials from
have already filed and served his answer; otherwise, if there being carried on in the dark (Fortune Corporation vs.
is no answer, then there is no need to set the case for pre- Court of Appeals, G.R. No. 108191, January 14, 1994).
trial, as the defendant may just be declared in default,
pursuant to Section 3, Rule 9 of the Amended Rules, Admission made during pre-trial and considered to be
judicial admissions and this does not required presentation
of evidence because it is deemed admitted.

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► Limitation of the number of witnesses, ► Comparison of the evidence:

identification of witness and setting of trial dates:
During pre-trial, the parties also shall proceed to make
Under the Amended Rules, it is not enough that the number comparisons of the adverse parties’ evidence with the
of the witnesses for the respective sides is identified, in that purported originals thereof and, thereupon, manifest for the
these witnesses should now be identified, and this is geared record regarding the faithfulness of the reproductions and/or
to prevent surprises. Relevantly, the setting of the trial dates the genuineness and due execution of such documentary
shall also depend on the number of the witnesses to be evidence. This is to avoid objection later on based the
presented by the parties. ground that the documentary evidence of the adverse party
is not the genuine or authentic, or that the same is not a
► Advisability of preliminary reference of issues to a faithful reproduction of the original.
commissioner:
► Reservation of evidence:
During pre-trial, the court and the parties may also discuss
the propriety of referring the issues to a commissioner. If there are documents or names of the witnesses not
Referral to a commissioner may be had under any of the available during the pre-trial there can be reservation of
circumstances contemplated under Section 2, Rule 32 of the evidence.
Amended Rules
► Propriety of rendering judgment on the pleadings, Section 2, Rule 18 of the Amended Rules expressly
or summary judgment, or of dismissing the action: mentions about, as it allows, reservation of testimonial
evidence, as well as documentary or other object evidence,
During pre-trial, the court and/or the parties may also but the same shall strictly be done in the manner provided
determine the propriety of rendering judgment on the for therein.
pleadings, or summary judgment, or of dismissing the
actions should a valid ground therefor be found to exits. In Effect of failure to appear
fact, under Section 10, Rule 18 of the Amended Rules, the
court, more than just determining the propriety of rendering The failure without just cause of a party and counsel to
judgment on the pleadings or summary judgment, may now appear during pre-trial, despite notice, shall result in a
render such judgment waiver of any objections to the faithfulness of the
reproductions marked, or their genuineness and due
► Marking of exhibits: execution. More than that, the absent may shall suffer the
sanctions or adverse consequences as, thus, provided under
At the pre-trial, the parties shall also mark their respective Section 5, Rule 18 of the Amended Rules.
evidence if not yet marked in the judicial affidavits of their
witness. Recall that under Section 6 (b), Rule 7 of the Section. 5. Effect of failure to appear.
Amended Rules, the affidavits of the witness are required to When duly notified, the failure of the plaintiff and
be appended to the pleading setting forth a party’s claim or counsel to appear without valid cause when so
defenses. required, pursuant to the next preceding Section,
shall cause the dismissal of the action. The
Informatively, and pursuant to the Judicial Affidavit Rule dismissal shall be with prejudice, unless otherwise
(A.M. No. 12- 8-8-SC, September 4, 2012), in the ordered by the court. A similar failure on the part
preparation of the judicial affidavits of the witnesses, they of the defendant and counsel shall be cause to
shall already identify and establish the authenticity of the allow the plaintiff to present his or her evidence
pertinent documentary and object evidence that they are ex-parte within ten (10) calendar days from
testifying on, and such documentary evidence shall then be termination of the pre-trial, and the court to render
attached to their respective judicial affidavits and marked judgment on the basis of the evidence offered
accordingly. But, if there are documentary or object evidence
that a particular witness mentioned in his judicial affidavit but  Read discussion in Atty. Galleon’s Transcript.
somehow failed to, as he could then, present and mark the
same in the course of the preparation of his or her judicial
affidavit, then such documentary or object evidence should, Section. 3. Notice of pre-trial.
as much as possible, be produced and marked during the The notice of pre-trial shall include the dates respectively set
pre-trial of the case. for:

This situation lends substance to the proposition that while (a) Pre-trial;
“actionable documents” are, indeed, required to be attached (b) Court-Annexed Mediation; and
to the pertinent pleading pursuant to Section 7, Rule 8 of the (c) Judicial Dispute Resolution, if necessary.
Amended Rules, “other documentary evidence (non-
actionable documents)” need not be attached to the The notice of pre-trial shall be served on counsel, or on the
pertinent pleading, in that it is enough that the same are party if he or she has no counsel. The counsel served with
stated in the pleading pursuant to the opening sentence of such notice is charged with the duty of notifying the party
Section 6, Rule 7 of the Amended Rules (please see the represented by him or her.
discussion under Section 7, Rue 8 of the Amended Rules).

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Non-appearance at any of the foregoing settings shall be If representative, execute a Special Power of Attorney and
deemed as nonappearance at the pre-trial and shall merit specifically alleged the following:
the same sanctions under Section 5 hereof. (3a)  To enter into an amicable settlement,
 To submit to alternative modes of dispute
The notice of pre-trial shall contain three (3) separate resolution, and
settings or schedules. One for:  To enter into stipulations or admissions of facts
and documents.
1. Pre-trial; another setting for
2. Court-Annexed Mediation (Philippine Mediation These 3 duties must be specifically specified in the SPA
Center); and another setting for because, if not, it will only be considered as a General
3. Judicial Dispute Resolution. (Optional) Power of Attorney and therefore the representative is NOT
DEEMED AUTHORIZED and the case would be dismissed if
Judicial Dispute Resolution – the judge will act as the the plaintiff who did not appear and just the representative
judge. The case shall stay with the court where it was raffled, who is not duly represented. The dismissal is WITH
if the judge believes that there is a chance to be settled and PREJUDICE.
subject it to JDR he will pass it to another judge, and if no
settlement it will be referred back to him.
Section. 5. Effect of failure to appear.
Q: what will happen if the parties will not appear in the When duly notified, the failure of the plaintiff and counsel to
Philippine Mediation Center, remember that Mediation appear without valid cause when so required, pursuant to
and JDR are still part of pre-trial? the next preceding Section, shall cause the dismissal of the
action. The dismissal shall be with prejudice, unless
A: Non-appearance of the parties or any of the parties otherwise ordered by the court. A similar failure on the part
during the mediation and JDR shall warrant the dismissal of of the defendant and counsel shall be cause to allow the
the case, if it is the plaintiff who did not appear. If defendant, plaintiff to present his or her evidence ex-parte within ten
the plaintiff shall be allowed to present evidence ex parte, (10) calendar days from termination of the pre-trial, and the
hence there is same effect. court to render judgment on the basis of the evidence
offered.
Unlike in the old rules which required that separate notices
should be sent to the party and his or her lawyer, under the Non-appearance of the plaintiff and counsel; Effect
present rule, it is enough that the notice of the pre-trial shall thereof; and Remedies:
be served on the counsel of the party, if the latter is
represented by a counsel; otherwise, or where a party is not If the plaintiff and counsel fail to appear at the pre-trial, or the
represented by a counsel, the notice of pre-trial shall be sent court-annexed mediation, or judicial dispute resolution,
to him or her. without any justifiable cause, the same shall cause the
dismissal of the action. And such dismissal shall be WITH
Under the present rules though, the counsel is now charged PREJUDICE, unless otherwise ordered by the court.
with the duty of notifying his or her client about the
scheduled pre-trial. If despite notice of the pre-trial, the Notably, a dismissal with prejudice is akin to an adjudication
counsel fails to inform his or her client about the pre-trial, on the merits, such that the proper remedy therefor is
such that the client fails to appear therein, the client shall appeal under Rule 41 of the Rules of Court, not a petition for
suffer the sanctions or consequences imposed under certiorari (Chingkoe vs. Republic, G.R. 183608, July 31,
Section 5, Rule 18 of the Amended Rules. But the client 2013).
concerned may file the appropriate disciplinary action
against his or her own lawyer who obviously fails to Before filing such appeal, however, and albeit this is not
discharge his duty of informing the client about the pre-trial required, the plaintiff may file a motion for reconsideration on
(Taroma vs. Sayo, 67 SCRA 512) the order dismissing his or her case, and such motion for
reconsideration need not be accompanied by affidavit of
merits (Gapoy vs. Adil, et al., L-46182, February 28, 1978). If
Section 4. Appearance of Parties. such motion for reconsideration is denied, then the appeal
It shall be the duty of the parties and their counsel to appear shall be taken from both orders of the court.
at the pre-trial, court-annexed mediation, and judicial dispute
resolution, if necessary. The non-appearance of a party and Non-appearance of the defendant and counsel; Effect
counsel may be excused only for acts of God, force majeure, thereof; and Remedies:
or duly substantiated physical inability.
The ex parte presentation of plaintiff’s evidence in the event
A representative may appear on behalf of a party, but must of the failure of the defendant and counsel to appear at the
be fully authorized in writing to enter into an amicable at the pre-trial, or the court-annexed mediation, or judicial
settlement, to submit to alternative modes of dispute dispute resolution, shall be had within ten (10) calendar days
resolution, and to enter into stipulations or admissions of from termination of the pre-trial. Conversely, it will be an
facts and documents. error on the part of the court to allow such presentation of
evidence ex parte during such pre-trial schedule wherein the
defendant and his or her counsel are absent. It is submitted
that the purpose why the ex parte presentation of plaintiff’s

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evidence cannot be had during the pre-trial at which the Section 7. Pre-Trial Order.
defendant and his or her counsel failed to appear is to allow Upon termination of the pre-trial, the court shall issue an
the defendant ample time to pursue the appropriate remedy order within ten (10) calendar days which shall recite in
with respect to the court’s order allowing the plaintiff to detail the matters taken up. The order shall include:
present his or her evidence ex parte.
On that score, it is relevant to state than an order allowing x x x REFER TO CODAL
the plaintiff to present his or her evidence ex parte does not
dispose of the case with finality. It is but an interlocutory The direct testimony of witnesses for the plaintiff shall be in
order; hence, it is not appealable. the form of judicial affidavits. After the identification of such
affidavits, cross-examination shall proceed immediately.
Where appeal is not, therefore, available, then defendant’s
recourse against such court order allowing the ex parte Postponement of presentation of the parties’ witnesses at a
presentation of plaintiff’s evidence is certiorari under Rule 65 scheduled date is prohibited, except if it is based on acts of
of the Rules of Court (Riano, Civil Procedure, Vol. I, 2016 God, force majeure or duly substantiated physical inability of
Edition, page. 428). But, as a general requirement before the witness to appear and testify. The party who caused the
availing of the remedy of certiorari, the defendant has to file postponement is warned that the presentation of its evidence
a motion for reconsideration on such order first (see Villa- must still be terminated within the remaining dates previously
Rey Transit vs. Bello, L-18957, April 23, 1963), albeit agreed upon.
without need of attaching thereto an affidavit of merit
(Lucero vs. Dacayo, L-23718, May 13, 1968). Should the opposing party fail to appear without valid cause
stated in the next preceding paragraph, the presentation of
the scheduled witness will proceed with the absent party
Section 6. Pre-trial brief. being deemed to have waived the right to interpose objection
The parties shall file with the court and serve on the adverse and conduct cross-examination.
party, in such manner as shall ensure their receipt thereof at
least three (3) calendar days before the date of the pre-trial, The contents of the pre-trial order shall control the
their respective pre-trial briefs which shall contain, among subsequent proceedings, unless modified before trial to
others: prevent manifest injustice.

(a) A concise statement of the case and the reliefs prayed Remember that during the trial (presentation of evidence)
for; the parties are not allowed to present evidence to prove or
(b) A summary of admitted facts and proposed stipulation establish an issue which is not taken during Pre-trial.
of facts;
(c) The main factual and legal issues to be tried or Atty. G:
resolved; Among the things that shall be stated in the pre-trial order
(d) The propriety of referral of factual issues to are the facts admitted by the parties. It is relevant to stress
commissioners; that these admissions as embodied in the pre-trial order are
(e) The documents or other object evidence to be marked, binding upon the parties and are conclusive upon them
stating the purpose thereof; (Heirs of Conahap vs. Regaña, 458 SCRA 741).
(f) The names of the witnesses, and the summary of their
respective testimonies; and It is in this context that where a party is aware that the pre-
(g) A brief statement of points of law and citation of trial order contains an erroneous statement regarding facts
authorities. supposedly admitted by him or her, then he or she must
move for the rectification of the pre-trial order. Ordinarily,
Failure to file the pre-trial brief shall have the same effect as the court will grant the parties at least ten (10) calendar days
failure to appear at the pre-trial. from receipt of the pre-trial order within which to review and
move for corrections of the pre-trial order. Otherwise, where
The submission by the parties of their respective pre-trial the case proceeded to trial, with the parties actively
briefs is mandatory, and that failure to file the same shall participating therein without raising their objection to the pre-
have the same effect as failure to appear the pre-trial, which trial order, they are bound by the stipulations at the pre-trial
would merit the imposition of sanctions under the preceding which they cannot anymore disown (Procopio Villanueva, et
Section 5, Rule 18 of the Amended Rules. al. vs. Court of Appeals, G.R. No. 143286, April 14, 2004).

It must be noted that the parties shall file with the court and The pre-trial order shall likewise include or set forth therein
serve on the adverse party their respective pre-trial briefs, in the legal and factual issues to be tried. On this score, it
such manner as shall ensure that the same shall be received bears to stress that the determination of issues at the pre-
by the adverse party at least three (3) calendar days before trial bars the consideration of other issues during the trial
the scheduled pre-trial. and more so on appeal (see Caltex Philippines vs. Court of
Appeals, G.R. No. 97753, August 10, 1992).
NOTE: Failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial. EXCEPTIONS:

1. A pre-trial order is not meant to be a catalogue of each

and every issue that is to be or may be taken up during

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the trial. Issues that are impliedly included therein or amount of damages under the original complaint was
may be inferable therefrom by necessary implication the same (Pioneer vs. Hontanosas, 78 SCRA 448);
are as much as integral parts of the pre-trial order as
those that are expressly stipulated therein (Philippine ii. There is no possibility of settlement (Sta. Maria vs.
Export and Foreign Loan Guarantee Corporation vs. Court of Appeals, 45 SCRA 596);
Amalgamated Management and Development
Corporation, 658 SCRA 273).
iii. Only legal questions are involved (Trocio vs. Labayo,
Thus, in Jimmy Co. vs. Court of Appeals, G.R. No. 53 SCRA 97);
124922, June 22, 1998, it was held, in essence, that
while the issue of delay is not specifically mentioned in iv. Once a party attends a pre-trial and manifests its
the pre-trial order as one of the issues to be tried, but opposition to settling the case amicably, said party may
inasmuch as the same is basically intertwined and no longer be compelled to attend a second pre-trial
subsumed under the issue of negligence – because per conference (Insurance Company of North America
allegations in the complaint, plaintiff’s imputation of vs. Republic, 21 SCRA 887);
negligence on the part of the defendant is premised on
the latter’s delay in the performance of his obligation -- v. Where the plaintiff was allowed to present evidence ex
then, the court can tackle and pass judgment on that parte after the defendants failed to appear during the
issue concerning delay. pre-trial, but the court subsequently set aside its order
against the defendants. The lifting of the order in
2. Under Section 5, Rule 10 of the Amended Rules, it is respect to defendants’ failure to appear during the pre-
clearly provided that “(w)hen issues not raised by the trial did not revert the action to the pre-trial stage or
pleadings are tried with the express or implied consent authorize, much less render mandatory, the holding of a
of the parties, they shall be treated in all respects as if second pre-trial. The court should just proceed with the
they had been raised in the pleadings. No amendment trial, but allowing the defendants to cross-examine
of such pleadings deemed amended is necessary to plaintiff’s witness (Development Bank of the
cause them to conform to the evidence.” Philippines vs. Court of Appeals, G.R. No. L-49410,
January 26, 1989).
3. Section 1, Rule 9 of the Amended Rules provides for
another exception, when it states that “(d)efenses and In situations, however, where the parties voluntarily agreed
objections not pleaded either in a motion to dismiss or that the case be set for pre-trial again, and the court yielded
in the answer are deemed waived. However, when it to the agreement, a second pre-trial may thus be had
appears from the pleadings or the evidence on record (Young vs. Court of Appeals, 204 SCRA 584).
that the court has no jurisdiction over the subject
matter, that there is another action pending between
the same parties for the same cause, or that the action Section 8. Court-Annexed Mediation.
is barred by a prior judgment or by statute of limitations, After pre-trial and, after issues are joined, the court shall
the court shall dismiss the claim.” refer the parties for mandatory court-annexed mediation.

ONE DAY EXAMINATION RULE & MOST IMPORTANT The period for court-annexed mediation shall not exceed
WITNESS RULE thirty (30) calendar days without further extension.
It may be observed that Section 7, Rule 18 of the Amended
Rules provides that the pre-trial order shall also state, Court-Annexed Mediation
among others, that the one-day examination rule and the
most important witness rule under A.M. No. 03-1-09-SC Is a mechanism whereby the parties are directed to appear
must be strictly followed. before a mediator who is not necessarily a lawyer. In court-
annexed mediation, the mediator is not allowed to propose
This circular mandates, inter alia, that the witness shall be to the parties any possible term of settlement. The authority
examined in one day only, subject, however, to the court’s of the mediator is but limited to providing the parties an
discretion during the trial on whether or not to extend the avenue to talk to each other directly and explore the
examination for justifiable reasons. The most important possibility of settlement. As for the counsels, they shall not
witness rule, on the other hand, ordains that the court shall do the talking for their clients during the court-annexed
determine the most important witnesses, limit the number of mediation, as they are there just to advise their clients in
such witnesses, thereby dispensing with other witnesses respect to the legality of any proposed settlement and assist
whose testimonies may just be corroborative, and requiring them in the drafting of compromise agreement, if any is
the parties or counsels to submit to the branch clerk of court reached by the parties. In court-annexed mediation, the
the names, addresses, and contact numbers of the parties will be advised by the mediator to refrain from
witnesses to be summoned by subpoena. discussing the merits of the case.

Where a pre-trial had already been conducted, a second As stated in the rules, court-annexed mediation is
pre-trial is unnecessary when: mandatory. It is also part of pre-trial, such that failure of
the parties to appear therein merits the imposition of
i. An amended complaint has been filed where no sanctions on the part of the absent party (Senarlo vs. Judge
additional cause of action was introduced and the Paderanga, 617 SCRA 247). In fact, under the last

123 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)
 2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

paragraph of Section 3, Rule 18 of the Amended Rules, it is Section. 10. Judgment after pre-trial.
provided therein that non-appearance at any of the settings Should there be no more controverted facts, or no more
for pre-trial, court-annexed mediation, and judicial dispute genuine issue as to any material fact, or an absence of any
resolution shall merit the same sanctions under Section 5 issue, or should the answer fail to tender an issue, the court
thereof. shall, without prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment under Rule
The period of court-annexed mediation shall not exceed 35, motu proprio include in the pre-trial order that the case
thirty (30) calendar days, and no extension is allowed. And be submitted for summary judgment or judgment on the
the proceedings therein shall be confidential, as expressly pleadings, without need of position papers or memoranda. In
provided under the last paragraph of Section 9, Rule 18 of such cases, judgment shall be rendered within ninety (90)
the Amended Rules. Verily, any statement, disclosure, or calendar days from termination of the pre-trial.
admissions made by the parties therein cannot be utilized for
or against them during the trial of the case. The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or
Section 9. Judicial Dispute Resolution. certiorari.
Only if the judge of the court to which the case was originally
raffled is convinced that settlement is still possible, the case The court, if it determines during the pre-trial that there is:
may be referred to another court for judicial dispute
resolution. The judicial dispute resolution shall be conducted  no more controverted facts (admitted) or
within a non-extendible period of fifteen (15) calendar days  no more genuine issues as to any material fact, or
from notice of failure of the court-annexed mediation.  an absence of any issue, or
 where the answer fails to tender an issue, x x x
If judicial dispute resolution fails, trial before the original
court shall proceed on the dates agreed upon. shall motu proprio include in the pre-trial order that the
case be submitted for summary judgment or judgment on the
All proceedings during the court-annexed mediation and the pleadings, without need of position paper or memoranda,
judicial dispute resolution shall be confidential. and this the court can do without prejudice to the filing by
any of the parties of a formal motion for judgment on the
Judicial dispute resolution pleadings under Rule 34 or summary judgment under Rule
Is not made mandatory, in that same may only be had if the 35, all of the Amended Rules. Where that happens, the court
judge of the court to which the case was originally raffled is shall render judgment within ninety (90) calendar days from
convinced that settlement is still possible; otherwise, the termination of the pre-trial.
case may not undergo judicial dispute resolution. Any such
judicial dispute resolution, if ordered to be had, shall be So, if, at the pre-trial, the defendant admitted and stipulated
conducted within a non-extendible period of fifteen (15) to have obtained a loan from the plaintiff but merely asked
calendar days from notice of the failure of the court-annexed for time for him to be able to pay, there is no need to reset
mediation. the pre-trial. The proper procedure is to issue an order
submitting the case for summary judgment (see Jaranilla,
Under the rules, judicial dispute resolution, if determined to Jr. vs. Adil, 88 SCRA 779).
be necessary, shall be conducted by another judge, and not
by the judge of the court to which the case was originally Take note that under the rules, the order of the court to
raffled. And unlike in court-annexed mediation where the submit the case for judgment on the pleadings or summary
mediator would only facilitate the conference or discussion judgment shall not be subject to appeal or certiorari. Be that
by and between the parties, the judge conducting the judicial is it may, where a judgment is eventually rendered by the
dispute resolution takes an active role in assisting the parties court, then such judgment may already be appealed
in coming up with a settlement. The judge conducting or from.
officiating the judicial dispute resolution is even allowed to
discuss the merits of the case, but, at the end of the day, the
parties cannot be compelled to settle the case amicably.

CONFIDENTIAL
The proceedings in the judicial dispute resolution shall be
confidential also, such that any statement, disclosure, or
admissions made by the parties therein cannot be utilized for
or against them during the trial of the case.

FAILURE TO APPEAR
Judicial dispute resolution, if ordered to be had, is
considered part of pre-trial; in fact, under the last paragraph
of Section 3, Rule 18 of the Amended Rules, it is provided
therein that non-appearance during the judicial dispute
resolution, if one is ordered conducted, shall merit the
imposition of sanctions under Section 5 thereof.

124 QDA Notes | Red Book / Chan Civ.Pro. 2017 / UP Reviewer 2020 / Judge Debalucos Remedial Reviewer 2017 & 2020
Discussion (USJR) / Civ. Pro. Atty. Galleon 2020 (USC)